Asset Sales. (a) From and after the Completion Date, the Company shall not consummate, and shall not permit any of its Restricted Subsidiaries to consummate, an Asset Sale, unless: (1) the Company or such Restricted Subsidiary, as the case may be, receives consideration at the time of such Asset Sale at least equal to the fair market value (as determined in good faith by the Company at the time of contractually agreeing to such Asset Sale) of the assets sold or otherwise disposed of; and (2) except in the case of a Permitted Asset Swap, if the property or assets sold or otherwise disposed of have a fair market value in excess of the greater of $375.0 million and 50.0% of LTM EBITDA for the most recently ended Test Period at the time of such disposition, at least 75.0% of the consideration therefor received by the Company or such Restricted Subsidiary, as the case may be, is in the form of cash or Cash Equivalents; provided that the amount of: (A) any liabilities, contingent or otherwise, of the Company or such Restricted Subsidiary, other than liabilities that are by their terms subordinated to the Notes or that are owed to the Company or a Restricted Subsidiary that (x) are assumed by the transferee of any such assets (or a third party in connection with such transfer) or (y) are otherwise cancelled or terminated in connection with the transaction with such transferee (other than intercompany debt owed to the Company or its Restricted Subsidiaries) and, in each case, for which the Company and all of its Restricted Subsidiaries have been validly released, (B) any securities, notes or other obligations or assets received by the Company or such Restricted Subsidiary from such transferee that are converted by the Company or such Restricted Subsidiary into cash or Cash Equivalents (to the extent of the cash or Cash Equivalents received) within 180 days following the closing of such Asset Sale; (C) Indebtedness of any Restricted Subsidiary that ceases to be a Restricted Subsidiary as a result of such Asset Sale (other than intercompany debt owed to the Company or any Restricted Subsidiary), to the extent that the Company and each other Restricted Subsidiary are released from any guarantee of payment of the principal amount of such Indebtedness in connection with such Asset Sale in accordance with the terms of this Indenture; (D) consideration consisting of Indebtedness of the Issuers or a Guarantor (other than intercompany debt owed to the Company or any Restricted Subsidiary and other than Subordinated Indebtedness) received after the Issue Date from Persons who are not the Company, Holdings or any Restricted Subsidiary; (E) any Designated Non-cash Consideration received by the Company or such Restricted Subsidiary in such Asset Sale having an aggregate fair market value, as determined by the Company, taken together with all other Designated Non-cash Consideration received pursuant to this clause (E) that is at that time outstanding, not to exceed the greater of $225.0 million and 30.0% of LTM EBITDA for the most recently ended Test Period at the time of the receipt of |US-DOCS\143900591.2|| such Designated Non-cash Consideration (with the fair market value of each such item of Designated Non-cash Consideration being measured pursuant to this clause (E) at the Company’s option, either at the time of contractually agreeing to such Asset Sale or at the time received and, in either case, without giving effect to subsequent changes in value); and (F) any Investment, Capital Stock, assets, property or capital or other expenditure of the kind referred to in clauses (2) or (3) of Section 4.10(b) hereof shall be deemed to be Cash Equivalents for purposes of this provision and for no other purpose. (b) Within 540 days after the receipt of any Net Proceeds of any Asset Sale (the “Proceeds Application Period”), the Company or such Restricted Subsidiary, at their option, may apply an amount equal to the Net Proceeds from such Asset Sale, (1) to reduce, prepay, repay or purchase: (A) to the extent such Net Proceeds are from an Asset Sale of Collateral, Obligations with Pari Passu Lien Priority (including the Senior Credit Facilities or any Refinancing Indebtedness in respect thereof but other than Indebtedness owed to the Company or any Restricted Subsidiary), and, in the case of revolving obligations, to correspondingly reduce commitments with respect thereto, provided that, to the extent either Issuer or any Restricted Subsidiary will so repay any such Indebtedness (other than the Notes), the Issuers shall reduce Obligations under the Notes on a pro rata basis by, at their option, (i) redeeming Notes as provided under Section 3.07 hereof (ii) purchasing Notes through open-market purchases or (iii) by making an offer (in accordance with the procedures set forth herein for an Asset Sale Offer) to all Holders to purchase their Notes at a purchase price equal to 100.0% of the principal amount thereof, plus the amount of accrued but unpaid interest, if any, on the principal amount of the Notes to be repurchased to the date of repurchase; (B) to the extent such Net Proceeds resulted from an Asset Sale not consisting of Collateral, Obligations in respect of other Secured Indebtedness (which may include the Notes), and, in the case of revolving commitments, to correspondingly reduce commitments with respect thereto; (C) Obligations in respect of the Notes or any other Indebtedness (other than Subordinated Indebtedness) of the Company or any Restricted Subsidiary, other than Indebtedness owed to the Company or any Restricted Subsidiary (and, in the case of revolving commitments, to correspondingly reduce commitments with respect thereto), provided that, to the extent either Issuer or any Restricted Subsidiary will so repay any such Indebtedness (other than the Notes), the Issuers will reduce Obligations under the Notes on a pro rata basis by, at their option, (i) redeeming Notes as provided under Section 3.07 hereof or (ii) by making an offer (in accordance with the procedures set forth herein for an Asset Sale Offer) to all Holders to purchase their Notes at a purchase price equal to 100.0% of the principal amount thereof, plus the amount of accrued but unpaid interest, if any, on the principal amount of the Notes to be repurchased to the date of repurchase; or |US-DOCS\143900591.2|| (D) Obligations in respect of Indebtedness of a Non-Guarantor Subsidiary, other than Indebtedness owed to the Company or another Restricted Subsidiary; provided, in the case of clauses (A) or (C) above, (i) if an offer to purchase any Indebtedness of the Company or any Restricted Subsidiary is made, such amount will be deemed repaid to the extent of the amount of such offer, whether or not accepted by the holders of such Indebtedness, and no Net Proceeds in the amount of such offer will be deemed to exist following such offer, and (ii) if the holder of any Indebtedness of a Restricted Subsidiary of the Company declines the repayment of such Indebtedness owed to it from such Net Proceeds such amount will be deemed repaid to the extent of the declined Net Proceeds, or (2) 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 that results in the Company or any Restricted Subsidiary, as the case may be, owning an amount of the Capital Stock of such business such that such business constitutes a Restricted Subsidiary or increases the Company’s direct or indirect percentage ownership of the Capital Stock of a Restricted Subsidiary;
Appears in 1 contract
Sources: Indenture (Viasat Inc)
Asset Sales. (a) From and after the Completion Date, the Company shall not consummateThe Borrower will not, and shall will not permit any of its Restricted Subsidiaries to Subsidiary to, consummate, directly or indirectly, an Asset Sale, unless:
(1i) the Company Borrower or such Restricted Subsidiary, as the case may be, receives consideration at the time of such Asset Sale at least equal to the fair market value (as determined in good faith by the Company measured at the time of contractually agreeing to such Asset Sale) of the assets sold or otherwise disposed of; and;
(2ii) except in the case of a Permitted Asset Swap, if the property or assets sold or otherwise disposed of have a fair market value in excess of the greater of $375.0 million and 50.0% of LTM EBITDA for the most recently ended Test Period at the time of such disposition, at least 75.075% of the consideration therefor received by the Company Borrower or such Restricted Subsidiary, as the case may be, is in the form of cash or Cash Equivalents; and
(iii) to the extent that any consideration received by the Borrower or any Restricted Subsidiary in such Asset Sale (including, for avoidance of doubt, any Designated Non-cash Consideration and any assets received in a Permitted Asset Swap) consists of assets of the type that would constitute Collateral, such assets, including the assets of any Person that becomes a Subsidiary Guarantor as a result of such transaction, are as soon as reasonably practicable (and in any event within 90 days) after their acquisition added to the Collateral. Within five Business Days after the receipt of any Net Proceeds of any Asset Sale, the Borrower or such Restricted Subsidiary shall apply the Net Proceeds from such Asset Sale to prepay Revolving Loans (or any corresponding Revolving Notes) and correspondingly reduce any outstanding Commitments in accordance with Sections 2.08 and 2.10; provided that so long as (1) the amount ofNet Proceeds thereof are reinvested in Collateral (each, a “reinvestment”) within one hundred eighty (180) days following receipt of such Net Proceeds and (2) no Event of Default shall have occurred and be continuing at the time of the sale of such property, at the time of reinvestment or at any time during such 180-day period, then the Borrower or such Restricted Subsidiary may reinvest such Net Proceeds in a Similar Business, Related Business Assets and/or Collateral without having to prepay the Revolving Loans (or any corresponding Revolving Notes) in accordance with this paragraph, provided further that, to the extent such Net Proceeds are not from Asset Sales of Collateral, the Borrower may, alternatively, at its option, permanently reduce Indebtedness of a Restricted Subsidiary that is not the Borrower or a Subsidiary Guarantor, other than Indebtedness owed to the Borrower, a Subsidiary Guarantor or a Restricted Subsidiary.
(b) For purposes of this Section 6.03, the following are deemed to be cash or Cash Equivalents:
(Ai) any liabilities, contingent or otherwise, of liabilities (as shown on the Company Borrower’s or such Restricted Subsidiary’s most recent balance sheet or in the notes thereto or, other than if incurred or accrued subsequent to the date of such balance sheet, such liabilities that are by their terms subordinated would have been shown on the Borrower’s or such Restricted Subsidiary’s balance sheet or in the footnotes thereto if such incurrence or accrual had taken place on or prior to the Notes date of such balance sheet, as determined in good faith by the Borrower) of the Borrower or any Restricted Subsidiary, that are owed to the Company or a Restricted Subsidiary that (x) are assumed by the transferee of any such assets (or a third party in connection with such transfer) or (y) are otherwise cancelled or terminated extinguished in connection with the transaction with transactions relating to such transferee (other than intercompany debt owed to the Company or its Restricted SubsidiariesAsset Sale) and, in each case, and for which the Company Borrower and all of its Restricted Subsidiaries have been validly released,released by all creditors in writing;
(Bii) any securities, notes or other obligations or assets received by the Company Borrower or such Restricted Subsidiary from such transferee that are converted by the Company Borrower or such Restricted Subsidiary into cash or Cash Equivalents (to the extent of the cash or Cash Equivalents received) within 180 days following the closing of such Asset Sale;; and
(C) Indebtedness of any Restricted Subsidiary that ceases to be a Restricted Subsidiary as a result of such Asset Sale (other than intercompany debt owed to the Company or any Restricted Subsidiary), to the extent that the Company and each other Restricted Subsidiary are released from any guarantee of payment of the principal amount of such Indebtedness in connection with such Asset Sale in accordance with the terms of this Indenture;
(D) consideration consisting of Indebtedness of the Issuers or a Guarantor (other than intercompany debt owed to the Company or any Restricted Subsidiary and other than Subordinated Indebtedness) received after the Issue Date from Persons who are not the Company, Holdings or any Restricted Subsidiary;
(Eiii) any Designated Non-cash Consideration received by the Company Borrower or such Restricted Subsidiary in such Asset Sale having an aggregate fair market value, as determined by the Company, taken together with all other Designated Non-cash Consideration received pursuant to this clause (Eiii) that is at that time outstanding, not to exceed the greater of $225.0 million and 30.0% of LTM EBITDA for the most recently ended Test Period 15,000,000 at the time of the receipt of |US-DOCS\143900591.2|| such Designated Non-cash Consideration (Consideration, with the fair market value of each such item of Designated Non-cash Consideration being measured pursuant to this clause (E) at the Company’s option, either at the time of contractually agreeing to such Asset Sale or at the time received and, in either case, and without giving effect to subsequent changes in value); and
(F) any Investment, Capital Stock, assets, property or capital or other expenditure of the kind referred to in clauses (2) or (3) of Section 4.10(b) hereof shall be deemed to be Cash Equivalents for purposes of this provision and for no other purpose.
(b) Within 540 days after the receipt of any Net Proceeds of any Asset Sale (the “Proceeds Application Period”), the Company or such Restricted Subsidiary, at their option, may apply an amount equal to the Net Proceeds from such Asset Sale,
(1) to reduce, prepay, repay or purchase:
(A) to the extent such Net Proceeds are from an Asset Sale of Collateral, Obligations with Pari Passu Lien Priority (including the Senior Credit Facilities or any Refinancing Indebtedness in respect thereof but other than Indebtedness owed to the Company or any Restricted Subsidiary), and, in the case of revolving obligations, to correspondingly reduce commitments with respect thereto, provided that, to the extent either Issuer or any Restricted Subsidiary will so repay any such Indebtedness (other than the Notes), the Issuers shall reduce Obligations under the Notes on a pro rata basis by, at their option, (i) redeeming Notes as provided under Section 3.07 hereof (ii) purchasing Notes through open-market purchases or (iii) by making an offer (in accordance with the procedures set forth herein for an Asset Sale Offer) to all Holders to purchase their Notes at a purchase price equal to 100.0% of the principal amount thereof, plus the amount of accrued but unpaid interest, if any, on the principal amount of the Notes to be repurchased to the date of repurchase;
(B) to the extent such Net Proceeds resulted from an Asset Sale not consisting of Collateral, Obligations in respect of other Secured Indebtedness (which may include the Notes), and, in the case of revolving commitments, to correspondingly reduce commitments with respect thereto;
(C) Obligations in respect of the Notes or any other Indebtedness (other than Subordinated Indebtedness) of the Company or any Restricted Subsidiary, other than Indebtedness owed to the Company or any Restricted Subsidiary (and, in the case of revolving commitments, to correspondingly reduce commitments with respect thereto), provided that, to the extent either Issuer or any Restricted Subsidiary will so repay any such Indebtedness (other than the Notes), the Issuers will reduce Obligations under the Notes on a pro rata basis by, at their option, (i) redeeming Notes as provided under Section 3.07 hereof or (ii) by making an offer (in accordance with the procedures set forth herein for an Asset Sale Offer) to all Holders to purchase their Notes at a purchase price equal to 100.0% of the principal amount thereof, plus the amount of accrued but unpaid interest, if any, on the principal amount of the Notes to be repurchased to the date of repurchase; or |US-DOCS\143900591.2||
(D) Obligations in respect of Indebtedness of a Non-Guarantor Subsidiary, other than Indebtedness owed to the Company or another Restricted Subsidiary; provided, in the case of clauses (A) or (C) above, (i) if an offer to purchase any Indebtedness of the Company or any Restricted Subsidiary is made, such amount will be deemed repaid to the extent of the amount of such offer, whether or not accepted by the holders of such Indebtedness, and no Net Proceeds in the amount of such offer will be deemed to exist following such offer, and (ii) if the holder of any Indebtedness of a Restricted Subsidiary of the Company declines the repayment of such Indebtedness owed to it from such Net Proceeds such amount will be deemed repaid to the extent of the declined Net Proceeds, or
(2) 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 that results in the Company or any Restricted Subsidiary, as the case may be, owning an amount of the Capital Stock of such business such that such business constitutes a Restricted Subsidiary or increases the Company’s direct or indirect percentage ownership of the Capital Stock of a Restricted Subsidiary;
Appears in 1 contract
Asset Sales. (a) From and after the Completion Date, the The Company shall not consummatenot, and shall not permit any of its Restricted Subsidiaries to consummateSubsidiary to, consummate an Asset Sale, Sale unless:
(1) the Company Company, or such 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 (as determined in good faith by the Company at the time of contractually agreeing to such Asset Sale) Fair Market Value of the assets or Equity Interests issued or sold or otherwise disposed of; and
(2) except in the case of a Permitted Asset Swap, if the property or assets sold or otherwise disposed of have a fair market value in excess of the greater of $375.0 million and 50.0% of LTM EBITDA for the most recently ended Test Period at the time of such disposition, at least 75.075% of the consideration therefor received in such Asset Sale by the Company or such Restricted Subsidiary, as the case may be, Subsidiary is in the form of cash or cash, Cash Equivalents; provided that , Replacement Assets or a combination thereof. For purposes of this clause (3), each of the amount offollowing shall be deemed to be cash:
(Aa) any Indebtedness or other liabilities, contingent as shown on the Company’s or otherwisesuch Restricted Subsidiary’s most recent balance sheet, of the Company or such any Restricted Subsidiary, Subsidiary (other than contingent liabilities and Indebtedness that are by their terms subordinated to the Notes or Notes), that are owed to the Company or a Restricted Subsidiary that (x) are assumed by the transferee of any such assets (or pursuant to a third party in connection with such transfer) or (y) are otherwise cancelled or terminated in connection with the transaction with such transferee (other than intercompany debt owed to written agreement that releases the Company or its such Restricted Subsidiaries) Subsidiary from further liability with respect to such Indebtedness or liabilities; and, in each case, for which the Company and all of its Restricted Subsidiaries have been validly released,
(Bb) any securities, notes or other obligations or assets received by the Company or any such Restricted Subsidiary from such transferee that are converted within 90 days of the applicable Asset Sale by the Company or such Restricted Subsidiary into cash or Cash Equivalents (cash, to the extent of the cash or Cash Equivalents received) within 180 days following the closing of such Asset Sale;
(C) Indebtedness of any Restricted Subsidiary that ceases to be a Restricted Subsidiary as a result of such Asset Sale (other than intercompany debt owed to the Company or any Restricted Subsidiary), to the extent that the Company and each other Restricted Subsidiary are released from any guarantee of payment of the principal amount of such Indebtedness in connection with such Asset Sale in accordance with the terms of this Indenture;
(D) consideration consisting of Indebtedness of the Issuers or a Guarantor (other than intercompany debt owed to the Company or any Restricted Subsidiary and other than Subordinated Indebtedness) received after the Issue Date from Persons who are not the Company, Holdings or any Restricted Subsidiary;
(E) any Designated Non-cash Consideration received by the Company or such Restricted Subsidiary in such Asset Sale having an aggregate fair market value, as determined by the Company, taken together with all other Designated Non-cash Consideration received pursuant to this clause (E) that is at that time outstanding, not to exceed the greater of $225.0 million and 30.0% of LTM EBITDA for the most recently ended Test Period at the time of the receipt of |US-DOCS\143900591.2|| such Designated Non-cash Consideration (with the fair market value of each such item of Designated Non-cash Consideration being measured pursuant to this clause (E) at the Company’s option, either at the time of contractually agreeing to such Asset Sale or at the time received and, in either case, without giving effect to subsequent changes in value); and
(F) any Investment, Capital Stock, assets, property or capital or other expenditure of the kind referred to in clauses (2) or (3) of Section 4.10(b) hereof shall be deemed to be Cash Equivalents for purposes of this provision and for no other purposeconversion.
(b) [Reserved].
(c) Within 540 360 days after the receipt of any Net Proceeds of any from an Asset Sale (the “Proceeds Application Period”)Sale, the Company or such any of its Restricted Subsidiary, at their option, Subsidiaries may apply an amount equal to the those Net Proceeds from such Asset Sale,at its option:
(1) (a) to reduce, prepay, permanently repay or purchase:
(A) to the extent such Net Proceeds are from an Asset Sale of Collateralreduce Indebtedness, Obligations with Pari Passu Lien Priority (including the Senior Credit Facilities or any Refinancing Indebtedness in respect thereof but other than Indebtedness owed to Subordinated Indebtedness, of the Company or any Restricted Subsidiary), and, in if the case of Indebtedness repaid is revolving obligationscredit Indebtedness, to correspondingly reduce commitments with respect thereto; or (b) to permanently repay or reduce Indebtedness of any of the Company’s Restricted Subsidiaries;
(2) to acquire, provided thator enter into a binding agreement to acquire, to all or substantially all of the extent either Issuer or any Restricted Subsidiary will so repay any such Indebtedness assets (other than the Notescash, Cash Equivalents and securities) of any Person engaged in a Permitted Business; provided, however, that any such commitment shall be subject only to customary conditions (other than financing), and such acquisition shall be consummated no later than 180 days after the Issuers end of such 360-day period;
(3) to acquire, or enter into a binding agreement to acquire, Voting Stock of a Person engaged in a Permitted Business from a Person that is not a Subsidiary of the Company; provided, however, that such commitment shall be subject only to customary conditions (other than financing) and such acquisition shall be consummated no later than 180 days after the end of such 360-day period; and provided, further, however, that (a) if the Net Proceeds are from the sale of assets of the Company or any of its Restricted Subsidiaries or the Equity Interests of any of its Restricted Subsidiaries, after giving effect thereto, the Person so acquired becomes a Restricted Subsidiary and (b) such acquisition is otherwise made in accordance with this Indenture, including, without limitation, Section 4.10 hereof;
(4) to acquire, or enter into a binding agreement to acquire, previously issued and outstanding Voting Stock of a non-Wholly Owned Restricted Subsidiary of the Company (a) from a Person that is not an Affiliate of the Company or (b) in a brokered transaction through the facilities of a stock exchange; provided, however, that such commitment shall be subject only to customary conditions (other than financing) and such acquisition shall be consummated no later than 180 days after the end of such 360-day period;
(5) to make capital expenditures; or
(6) to acquire, or enter into a binding agreement to acquire, other long-term assets (other than securities) that are used or useful in a Permitted Business; provided, however, that such commitment shall be subject only to customary conditions (other than financing) and such acquisition shall be consummated no later than 180 days after the end of such 360-day period. Pending the final application of any Net Proceeds, the Company may temporarily reduce Obligations under revolving credit borrowings or otherwise invest the Notes on a pro rata basis by, at their option, Net Proceeds in any manner that is not prohibited by this Indenture.
(id) redeeming Notes Any Net Proceeds from Asset Sales that are not applied or invested as provided under Section 3.07 hereof in paragraph (iic) purchasing Notes through open-market purchases or above shall constitute “Excess Proceeds.”
(iiie) by making When the aggregate amount of Excess Proceeds exceeds Cnd$100.0 million, the Company shall make an offer (an “Asset Sale Offer”) to all Holders of Notes and all holders of other Indebtedness that is pari passu in right of payment with the Notes containing provisions similar to those set forth in this Indenture with respect to offers to purchase or redeem with the proceeds of sales of assets, to purchase the maximum principal amount of Notes and such other pari passu Indebtedness that may be purchased out of the Excess Proceeds in accordance with the procedures set forth herein for in Section 3.09 hereof. The offer price in any Asset Sale Offer shall be equal to 100% of principal amount of the Notes and such other pari passu Indebtedness, plus accrued and unpaid interest to the date of purchase, and shall be payable in cash. If any Excess Proceeds remain after consummation of an Asset Sale Offer) to Offer and all Holders of Notes have been given the opportunity to purchase tender their Notes at a for purchase price equal to 100.0% of in accordance with such Asset Sale Offer and this Indenture, the Company may use such Excess Proceeds for any purpose not otherwise prohibited by this Indenture. If the aggregate principal amount thereof, plus of Notes and such other pari passu Indebtedness tendered into such Asset Sale Offer exceeds the amount of accrued but unpaid interestExcess Proceeds, if any, the Notes and such other pari passu Indebtedness shall be purchased on a pro rata basis based on the principal amount of Notes and such other pari passu Indebtedness tendered. Upon completion of each Asset Sale Offer, the Notes to amount of Excess Proceeds shall be repurchased to reset at zero. The Company shall comply with the date requirements of repurchase;
(B) Rule 14e-1 under the Exchange Act and any other securities laws and regulations thereunder to the extent such Net Proceeds resulted from an Asset Sale not consisting laws and regulations are applicable in connection with each repurchase of Collateral, Obligations in respect of other Secured Indebtedness (which may include the Notes), and, in the case of revolving commitments, Notes pursuant to correspondingly reduce commitments with respect thereto;
(C) Obligations in respect of the Notes or any other Indebtedness (other than Subordinated Indebtedness) of the Company or any Restricted Subsidiary, other than Indebtedness owed to the Company or any Restricted Subsidiary (and, in the case of revolving commitments, to correspondingly reduce commitments with respect thereto), provided that, to the extent either Issuer or any Restricted Subsidiary will so repay any such Indebtedness (other than the Notes), the Issuers will reduce Obligations under the Notes on a pro rata basis by, at their option, (i) redeeming Notes as provided under Section 3.07 hereof or (ii) by making an offer (in accordance with the procedures set forth herein for an Asset Sale Offer) to all Holders to purchase their Notes at a purchase price equal to 100.0% . To the extent that the provisions of any securities laws or regulations conflict with the principal amount thereofAsset Sales provisions of this Indenture, plus the amount of accrued but unpaid interest, if any, on the principal amount of the Notes to be repurchased to the date of repurchase; or |US-DOCS\143900591.2||
(D) Obligations in respect of Indebtedness of a Non-Guarantor Subsidiary, other than Indebtedness owed to the Company or another Restricted Subsidiary; provided, in shall comply with the case of clauses (A) or (C) above, (i) if an offer to purchase any Indebtedness of the Company or any Restricted Subsidiary is made, such amount will applicable securities laws and regulations and shall be deemed repaid not to have breached its obligations under the extent Asset Sale provisions of the amount this Indenture by virtue of such offer, whether or not accepted by the holders of such Indebtedness, and no Net Proceeds in the amount of such offer will be deemed to exist following such offer, and (ii) if the holder of any Indebtedness of a Restricted Subsidiary of the Company declines the repayment of such Indebtedness owed to it from such Net Proceeds such amount will be deemed repaid to the extent of the declined Net Proceeds, or
(2) 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 that results in the Company or any Restricted Subsidiary, as the case may be, owning an amount of the Capital Stock of such business such that such business constitutes a Restricted Subsidiary or increases the Company’s direct or indirect percentage ownership of the Capital Stock of a Restricted Subsidiary;conflict.
Appears in 1 contract
Sources: Indenture (Quebecor Media Inc)
Asset Sales. (a) From and after the Completion Date, the Company shall not consummateACEP will not, and shall will not permit any of its Restricted Subsidiaries to consummateSubsidiary to, consummate an Asset Sale, Sale unless:
(1) no Default or Event of Default has occurred and is continuing or would occur as a consequence of such Asset Sale;
(2) ACEP (or the Company or 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 (as determined in good faith by the Company at the time of contractually agreeing to such Asset Sale) Fair Market Value of the assets sold, leased, transferred, conveyed or otherwise disposed of or Equity Interests issued or sold or otherwise disposed of; and;
(23) except in the case of a Permitted with respect to any Asset Swap, if the Sale involving consideration or property or assets sold or otherwise disposed of have a fair market value in excess of $2.5 million, such Fair Market Value is evidenced by a resolution of the greater Board of $375.0 million and 50.0% of LTM EBITDA for Directors set forth in an Officers' Certificate delivered to the most recently ended Test Period at the time of such disposition, Trustee;
(4) at least 75.075% of the consideration therefor received in the Asset Sale by the Company ACEP or such Restricted Subsidiary, as the case may be, Subsidiary is in the form of cash or Cash Equivalents; provided that . For purposes of this clause (4), each of the amount offollowing will be deemed to be cash:
(Aa) any liabilities, contingent or otherwise, of the Company as shown on ACEP's or such Restricted Subsidiary's most recent balance sheet, of ACEP or any Restricted Subsidiary (other than contingent liabilities and liabilities that are by their terms subordinated to the Notes or any Note Guarantee which may be assumed only if such liabilities are deemed to be Restricted Payments and such Restricted Payment may then be made) that are owed to the Company or a Restricted Subsidiary that (x) are assumed by the transferee of any such assets (pursuant to a customary novation agreement that releases ACEP or a third party in connection with such transfer) or (y) are otherwise cancelled or terminated in connection with the transaction with such transferee (other than intercompany debt owed to the Company or its Restricted Subsidiaries) Subsidiary from further liability; and, in each case, for which the Company and all of its Restricted Subsidiaries have been validly released,
(Bb) any securities, notes or other obligations or assets received by the Company ACEP or any such Restricted Subsidiary from such transferee that are converted by the Company ACEP or such Restricted Subsidiary into cash or Cash Equivalents (within 30 days, to the extent of the cash or Cash Equivalents received) within 180 days following the closing of such Asset Sale;
(C) Indebtedness of any Restricted Subsidiary received in that ceases to be a Restricted Subsidiary as a result of such Asset Sale (other than intercompany debt owed to the Company or any Restricted Subsidiary), to the extent that the Company and each other Restricted Subsidiary are released from any guarantee of payment of the principal amount of such Indebtedness in connection with such Asset Sale in accordance with the terms of this Indenture;
(D) consideration consisting of Indebtedness of the Issuers or a Guarantor (other than intercompany debt owed to the Company or any Restricted Subsidiary and other than Subordinated Indebtedness) received after the Issue Date from Persons who are not the Company, Holdings or any Restricted Subsidiary;
(E) any Designated Non-cash Consideration received by the Company or such Restricted Subsidiary in such Asset Sale having an aggregate fair market value, as determined by the Company, taken together with all other Designated Non-cash Consideration received pursuant to this clause (E) that is at that time outstanding, not to exceed the greater of $225.0 million and 30.0% of LTM EBITDA for the most recently ended Test Period at the time of the receipt of |US-DOCS\143900591.2|| such Designated Non-cash Consideration (with the fair market value of each such item of Designated Non-cash Consideration being measured pursuant to this clause (E) at the Company’s option, either at the time of contractually agreeing to such Asset Sale or at the time received and, in either case, without giving effect to subsequent changes in value)conversion; and
(F5) any Investment, Capital Stock, assets, property or capital or other expenditure the Board of Directors has determined in good faith that the kind referred to in Asset Sale complies with the clauses (2) or ), (3) of Section 4.10(band (4) hereof shall be deemed to be Cash Equivalents for purposes of this provision and for no other purposeSection 4.10.
(b) Within 540 days one year after the receipt of any Net Proceeds of any Asset Sale (Proceeds, ACEP or the “Proceeds Application Period”), the Company or such Restricted Subsidiary, at their option, Subsidiary may apply an amount equal to the those Net Asset Sale Proceeds from such Asset Sale,at its option:
(1) to reduce, prepay, repay or purchase:
(A) to the extent such Net Proceeds are from an Asset Sale of Collateral, First Lien Obligations with Pari Passu Lien Priority (including the Senior Credit Facilities or any Refinancing other Indebtedness in respect thereof but other than Indebtedness owed to that is pari passu with the Company or Notes, including any Restricted Subsidiary), Notes and, in if the case of Indebtedness repaid is revolving obligations, to correspondingly reduce commitments with respect thereto, provided that, to the extent either Issuer or any Restricted Subsidiary will so repay any such Indebtedness (other than the Notes), the Issuers shall reduce Obligations under the Notes on a pro rata basis by, at their option, (i) redeeming Notes as provided under Section 3.07 hereof (ii) purchasing Notes through open-market purchases or (iii) by making an offer (in accordance with the procedures set forth herein for an Asset Sale Offer) to all Holders to purchase their Notes at a purchase price equal to 100.0% of the principal amount thereof, plus the amount of accrued but unpaid interest, if any, on the principal amount of the Notes to be repurchased to the date of repurchase;
(B) to the extent such Net Proceeds resulted from an Asset Sale not consisting of Collateral, Obligations in respect of other Secured Indebtedness (which may include the Notes), and, in the case of revolving commitmentscredit Indebtedness, to correspondingly reduce commitments with respect thereto;
(C2) Obligations in respect to acquire all or substantially all of the Notes assets of, or any other Indebtedness (other than Subordinated Indebtedness) a majority of the Company or any Restricted SubsidiaryVoting Stock of, other than Indebtedness owed to the Company or any Restricted Subsidiary (and, in the case of revolving commitments, to correspondingly reduce commitments with respect thereto), provided that, to the extent either Issuer or any Restricted Subsidiary will so repay any such Indebtedness (other than the Notes), the Issuers will reduce Obligations under the Notes on a pro rata basis by, at their option, (i) redeeming Notes as provided under Section 3.07 hereof or (ii) by making an offer (in accordance with the procedures set forth herein for an Asset Sale Offer) to all Holders to purchase their Notes at a purchase price equal to 100.0% of the principal amount thereof, plus the amount of accrued but unpaid interest, if any, on the principal amount of the Notes to be repurchased to the date of repurchase; or |US-DOCS\143900591.2||another Principal Business;
(D) Obligations in respect of Indebtedness of a Non-Guarantor Subsidiary, other than Indebtedness owed to the Company or another Restricted Subsidiary; provided, in the case of clauses (A) or (C) above, (i) if an offer to purchase any Indebtedness of the Company or any Restricted Subsidiary is made, such amount will be deemed repaid to the extent of the amount of such offer, whether or not accepted by the holders of such Indebtedness, and no Net Proceeds in the amount of such offer will be deemed to exist following such offer, and (ii) if the holder of any Indebtedness of a Restricted Subsidiary of the Company declines the repayment of such Indebtedness owed to it from such Net Proceeds such amount will be deemed repaid to the extent of the declined Net Proceeds, or
(23) to make an Investment in (A) any one or more businesses, provided expenditures for acquiring or constructing properties and assets that such Investment in any business is in replace the form properties and assets that were the subject of the acquisition of Capital Asset Sale; or
(4) to acquire, construct, repair or rebuild other assets or property, other than current assets, that are used or useful in a Principal Business; provided, however, that with respect to any assets that are acquired or constructed or Voting Stock that results in is acquired with such Net Asset Sale Proceeds, ACEP or the Company or any applicable Restricted Subsidiary, as the case may be, owning an promptly grants to the Trustee, on behalf of the holders of the Notes, a second-priority security interest on any such assets or Voting Stock on the terms set forth in this Indenture and the Collateral Documents. Pending the final application of any Net Asset Sale Proceeds, ACEP or the applicable Restricted Subsidiary may temporarily reduce revolving credit borrowings or otherwise invest the Net Asset Sale Proceeds in any manner that is not prohibited by this Indenture.
(c) Any Net Asset Sale Proceeds that are not applied or invested as provided in Section 4.10(b) (or in the case of clauses (2), (3) or (4) of Section 4.10(b), contracted or committed to within one year; provided that such acquisition, investment, construction, repair or reconstruction is completed within two years of the date of such contract or commitment) will constitute "Excess Proceeds". Within five days of each date on which the aggregate amount of Excess Proceeds exceeds $5.0 million, the Capital Stock Company will make an offer (an "Asset Sale Offer") to all holders of Notes to purchase the maximum principal amount of Notes and, if the Company is required to do so under the terms of any other Indebtedness that is pari passu with the Notes, such other Indebtedness on a pro rata basis with the Notes, that may be purchased out of the Excess Proceeds. The offer price in any Asset Sale Offer will be equal to 100% of principal amount plus accrued and unpaid interest and Liquidated Damages, if any, to the date of purchase, and will be payable in cash. If any Excess Proceeds remain after consummation of the purchase of all properly tendered and not withdrawn Notes pursuant to an Asset Sale Offer, ACEP may use such remaining Excess Proceeds for any purpose not otherwise prohibited by this Indenture and the Collateral Documents. If the aggregate principal amount of Notes and other pari passu Indebtedness tendered into such Asset Sale Offer (together with any other pari passu Indebtedness expected to be repaid from such Excess Proceeds) exceeds the amount of Excess Proceeds, the Trustee shall select the Notes and such other pari passu Indebtedness to be purchased on a pro rata basis based on the principal amount of Notes and such other Indebtedness tendered (or otherwise expected to be repaid). Upon completion of any Asset Sale Offer, the amount of Excess Proceeds will be reset at zero. The Company may commence an Asset Sale Offer without having to wait for the expiration of the one year period. The Company will comply with the requirements of Rule 14e-1 under the Exchange Act and any other securities laws and regulations thereunder to the extent such laws and regulations are applicable in connection with each repurchase of Notes pursuant to an Asset Sale Offer. To the extent that the provisions of any securities laws or regulations conflict with the provisions of Sections 3.11 or 4.10 of this Indenture, the Company will comply with the applicable securities laws and regulations and will not be deemed to have breached its obligations under Section 3.11 or this Section 4.10 by virtue of such business such that such business constitutes a Restricted Subsidiary or increases the Company’s direct or indirect percentage ownership of the Capital Stock of a Restricted Subsidiary;compliance.
Appears in 1 contract
Asset Sales. (a) From and after the Completion Date, the The Company shall not consummatewill not, and shall will not permit any of its Restricted Subsidiaries to consummateto, consummate an Asset Sale, Sale unless:
(1) the Company (or such 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 (as determined in good faith by the Company at the time of contractually agreeing to such Asset Sale) Fair Market Value of the Equity Interests or other assets issued or sold or otherwise disposed of; and
(2) except in the case of a Permitted Asset Swap, if the property or assets sold or otherwise disposed of have a fair market value in excess of the greater of $375.0 million and 50.0% of LTM EBITDA for the most recently ended Test Period at the time of such disposition, (x) at least 75.075% of the consideration therefor received in the Asset Sale by the Company or such Restricted Subsidiary, as the case may be, Subsidiary is in the form of cash or Cash Equivalents; provided that (y) the amount ofFair Market Value of all forms of consideration other than cash received for all Asset Sales since the Issue Date does not exceed in the aggregate 15% of the Adjusted Consolidated Net Tangible Assets of the Company at the time each determination is made. For purposes of this provision, each of the following shall be deemed to be cash:
(Ai) any liabilities, contingent or otherwiseas shown on the Company’s most recent consolidated balance sheet, of the Company or such any Restricted Subsidiary, Subsidiary (other than contingent liabilities and Subordinated Obligations) that are by their terms subordinated to the Notes or that are owed to the Company or a Restricted Subsidiary that (x) are assumed by the transferee of any such assets (or pursuant to a third party in connection with such transfer) or (y) are otherwise cancelled or terminated in connection with the transaction with such transferee (other than intercompany debt owed to customary novation agreement that releases the Company or its such Restricted Subsidiaries) and, in each case, for which the Company and all of its Restricted Subsidiaries have been validly released,Subsidiary from further liability;
(Bii) any securities, notes or other obligations or assets received by the Company or any such Restricted Subsidiary from such transferee that are converted by the Company or such Restricted Subsidiary into cash or Cash Equivalents (within 180 days after the date of the Asset Sale, to the extent of the cash or Cash Equivalents received) within 180 days following the closing of such Asset Salereceived in that conversion;
(C) Indebtedness of any Restricted Subsidiary that ceases to be a Restricted Subsidiary as a result of such Asset Sale (other than intercompany debt owed to the Company or any Restricted Subsidiary), to the extent that the Company and each other Restricted Subsidiary are released from any guarantee of payment of the principal amount of such Indebtedness in connection with such Asset Sale in accordance with the terms of this Indenture;
(D) consideration consisting of Indebtedness of the Issuers or a Guarantor (other than intercompany debt owed to the Company or any Restricted Subsidiary and other than Subordinated Indebtedness) received after the Issue Date from Persons who are not the Company, Holdings or any Restricted Subsidiary;
(Eiii) any Designated Non-cash Consideration received by the Company stock or such Restricted Subsidiary in such Asset Sale having an aggregate fair market value, as determined by the Company, taken together with all other Designated Non-cash Consideration received pursuant to this clause (E) that is at that time outstanding, not to exceed the greater of $225.0 million and 30.0% of LTM EBITDA for the most recently ended Test Period at the time of the receipt of |US-DOCS\143900591.2|| such Designated Non-cash Consideration (with the fair market value of each such item of Designated Non-cash Consideration being measured pursuant to this clause (E) at the Company’s option, either at the time of contractually agreeing to such Asset Sale or at the time received and, in either case, without giving effect to subsequent changes in value); and
(F) any Investment, Capital Stock, assets, property or capital or other expenditure assets of the kind referred to in clauses clause (2b)(2) or (3b)(3) of Section 4.10(b) hereof shall be deemed to be Cash Equivalents for purposes of this provision and for no other purpose.below; and
(biv) Within 540 days after the receipt of any Net Proceeds of any Asset Sale (the “Proceeds Application Period”), the Company or such Restricted Subsidiary, at their option, may apply an amount equal to the Net Proceeds from such Asset Sale,
(1) to reduce, prepay, repay or purchase:
(A) to the extent such Net Proceeds are from an Asset Sale of Collateral, Obligations with Pari Passu Lien Priority (including the Senior Credit Facilities or any Refinancing Indebtedness in respect thereof but other than Indebtedness owed to the Company or any Restricted Subsidiary), and, in the case of revolving obligations, to correspondingly reduce commitments with respect thereto, provided that, to the extent either Issuer or any Restricted Subsidiary will so repay any such Indebtedness (other than the Notes), the Issuers shall reduce Obligations under the Notes on a pro rata basis by, at their option, (i) redeeming Notes as provided under Section 3.07 hereof (ii) purchasing Notes through open-market purchases or (iii) by making an offer (in accordance with the procedures set forth herein for an Asset Sale Offer) to all Holders to purchase their Notes at a purchase price equal to 100.0% of the principal amount thereof, plus the amount of accrued but unpaid interest, if any, on the principal amount of the Notes to be repurchased to the date of repurchase;
(B) to the extent such Net Proceeds resulted from an Asset Sale not consisting of Collateral, Obligations in respect of other Secured Indebtedness (which may include the Notes), and, in the case of revolving commitments, to correspondingly reduce commitments with respect thereto;
(C) Obligations in respect of the Notes or any other Indebtedness (other than Subordinated Indebtedness) of the Company or any Restricted Subsidiary, other than Indebtedness owed to the Company or any Restricted Subsidiary (and, in the case of revolving commitments, to correspondingly reduce commitments with respect thereto), provided that, to the extent either Issuer or any Restricted Subsidiary will so repay any such Indebtedness (other than the Notes), the Issuers will reduce Obligations under the Notes on a pro rata basis by, at their option, (i) redeeming Notes as provided under Section 3.07 hereof or (ii) by making an offer (in accordance with the procedures set forth herein for an Asset Sale Offer) to all Holders to purchase their Notes at a purchase price equal to 100.0% of the principal amount thereof, plus the amount of accrued but unpaid interest, if any, on the principal amount of the Notes to be repurchased to the date of repurchase; or |US-DOCS\143900591.2||
(D) Obligations in respect of Indebtedness accounts receivable of a Non-Guarantor Subsidiary, other than Indebtedness owed to the Company or another Restricted Subsidiary; provided, in the case of clauses (A) or (C) above, (i) if an offer to purchase any Indebtedness of the Company or any Restricted Subsidiary is made, such amount will be deemed repaid to the extent of the amount of such offer, whether or not accepted business retained by the holders of such Indebtedness, and no Net Proceeds in the amount of such offer will be deemed to exist following such offer, and (ii) if the holder of any Indebtedness of a Restricted Subsidiary of the Company declines the repayment of such Indebtedness owed to it from such Net Proceeds such amount will be deemed repaid to the extent of the declined Net Proceeds, or
(2) 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 that results in the Company or any Restricted Subsidiary, as the case may be, owning an amount following the sale of such business; provided that such accounts receivable are not (x) past due more than 90 days and (y) do not have a payment date greater than 120 days from the date of the Capital Stock invoice creating such accounts receivable.
(b) Within 365 days after the receipt of any Net Proceeds from an Asset Sale, or, if within such 365-day period the Company has entered into a binding commitment or commitments with respect to the actions described in clause (2) or (3) below, within 180 days after the entry into such binding commitment or commitments (or, if later, 365 days after receipt of such business Net Proceeds), the Company (or the applicable Restricted Subsidiary, as the case may be) may apply such Net Proceeds:
(1) (i) if the Asset Sale is a Collateral Disposition, to repay, prepay, redeem or repurchase Priority Lien Debt or Parity Lien Debt; provided that with respect to Parity Lien Debt, such business constitutes repayment, prepayment, redemption or repurchase must be made either by a pro rata redemption, repayment or repurchase of outstanding Parity Lien Debt or by an offer to purchase on a pro rata basis made to all holders of Parity Lien Debt under the procedures set forth in Section 3.09 or (ii) if such Asset Sale is not a Collateral Disposition, to repay, prepay, redeem or repurchase Indebtedness of the Company or a Restricted Subsidiary that is not a Subordinated Obligation (but, in each case, excluding Indebtedness between or increases among the Company or any Restricted Subsidiary or any of their Affiliates);
(2) to invest in Additional Assets;
(3) to make capital expenditures in respect of the Company’s direct or indirect percentage ownership its Restricted Subsidiaries’ Oil and Gas Business; or
(4) any combination of the Capital Stock foregoing. Pending the application of any Net Proceeds in the manner provided above, the Company or any Restricted Subsidiary may 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 4.11(b) will constitute “Excess Proceeds.” Within five days after the date that the aggregate amount of Excess Proceeds exceeds $20.0 million, the Company will make an Asset Sale Offer to all Holders of Notes and (i) with respect to Excess Proceeds from any Asset Sale that is a Collateral Disposition, all holders of other Parity Lien Obligations, or (ii) with respect to other Excess Proceeds, all holders of other Indebtedness that is pari passu in right of payment with the Notes (with a copy to the Trustee) containing provisions similar to those set forth in this Indenture (such applicable holders of any Parity Lien Obligations or other applicable pari passu Indebtedness, the “Other Offer Parties”) with respect to offers to purchase, repay or redeem with the proceeds of sales of assets in accordance with Section 3.09 to purchase or repay on a pro rata basis the maximum principal amount of Notes and such other Indebtedness that may be purchased or repaid 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 or repayment, 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 purchase price for Notes tendered into such Asset Sale Offer exceeds the amount of Excess Proceeds allocated for the purchase of Notes pursuant to the Asset Sale Offer, the Trustee shall select the Notes to be purchased on a pro rata basis (or, in the case of Notes represented by a Global Note, the Trustee will select Notes for purchase by such method as DTC may require), subject to adjustment to maintain authorized minimum denominations. Upon completion of each Asset Sale Offer, the amount of Excess Proceeds will be reset at zero.
(d) The Company will comply with the requirements of Rule 14e-1 under the Exchange Act and any other securities laws and regulations thereunder to the extent such laws and regulations are applicable in connection with each repurchase of Notes pursuant to 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 4.11, the Company will comply with the applicable securities laws and regulations and will not be deemed to have breached its obligations under Section 3.09 or this Section 4.11 by virtue of such compliance.
(e) Notwithstanding Section 4.11(a) and (b), the Company and its Restricted Subsidiary;Subsidiaries will be permitted to consummate an Asset Sale without complying with such clauses to the extent that:
(1) the consideration for such Asset Sale constitutes Additional Assets and/or the assumption of obligations secured by Liens that burden some or all of the assets being sold and/or cash or Cash Equivalents; provided that, in the case of any such assumption, (i) the Person assuming such obligations shall have no recourse with respect to such obligations to the Company or any of its Restricted Subsidiaries and (ii) no assets of the Company or any of its Restricted Subsidiaries (other than those assets being sold) are subject to such Liens; and
(2) such Asset Sale is for Fair Market Value; provided that at least 75% of the total consideration received by the Company or any of its Restricted Subsidiaries in connection with any such Asset Sale shall be in the form of Additional Assets, the assumption of obligations secured by Liens described in clause (e)(1) above, cash or Cash Equivalents (including, without limitation, assets deemed cash pursuant to clause (a)(2) above), or any combination of the foregoing, and that any Net Proceeds so received shall be subject to Section 4.11(a) and (b).
Appears in 1 contract
Sources: Indenture (W&t Offshore Inc)
Asset Sales. (a) From The Parent Entity and after the Completion Date, the Company shall not consummatewill not, and shall the Company will not permit any of its Restricted Subsidiaries to consummateto, consummate an Asset Sale, Sale unless:
(1) the Company (or such the Restricted SubsidiarySubsidiary or the Parent Entity, as the case may be, ) receives consideration at the time of such the Asset Sale at least equal to the fair market value (as determined in good faith by the Company at the time of contractually agreeing to such Asset Sale) Fair Market Value of the assets or Equity Interests issued or sold or otherwise disposed of; and
(2) except in the case of a Permitted Asset Swap, if the property or assets sold or otherwise disposed of have a fair market value in excess of the greater of $375.0 million and 50.0% of LTM EBITDA for the most recently ended Test Period at the time of such disposition, at least 75.075% of the consideration therefor received in the Asset Sale by the Company or such Restricted Subsidiary, as the case may be, Subsidiary or Parent Entity is in the form of cash or Cash Equivalents; provided that . For purposes of this provision, each of the amount offollowing shall be deemed to be cash:
(A) any liabilities, contingent or otherwise, liabilities that would be classified as a liability on a balance sheet prepared in accordance with GAAP of the Company or such any Restricted Subsidiary, Subsidiary or Parent Entity (other than contingent liabilities and liabilities that are by their terms subordinated to the Notes or any Note Guarantee) that are owed to the Company or a Restricted Subsidiary that (x) are assumed by the transferee of any such assets (or a third party in connection with such transfer) or (y) are otherwise cancelled or terminated in connection with the transaction with such transferee (other than intercompany debt owed to that releases the Company or its such Restricted Subsidiaries) and, in each case, for which the Company and all of its Restricted Subsidiaries have been validly released,Subsidiary or Parent Entity from further liability;
(B) any securities, notes or other obligations or assets Obligations received by the Company or any such Restricted Subsidiary or Parent Entity from such transferee that are within 180 days, converted by the Company or such Restricted Subsidiary or Parent Entity into cash or Cash Equivalents (Equivalents, to the extent of the cash or Cash Equivalents received) within 180 days following the closing of such Asset Salereceived in that conversion;
(C) Indebtedness of any Restricted Subsidiary that ceases to be a Restricted Subsidiary as a result of such Asset Sale (other than intercompany debt owed to the Company stock or any Restricted Subsidiary), to the extent that the Company and each other Restricted Subsidiary are released from any guarantee of payment assets of the principal amount kind referred to in clauses (2) or (4) of such Indebtedness in connection with such Asset Sale in accordance with the terms next paragraph of this Indenture;Section 4.10; and
(D) consideration consisting of Indebtedness of the Issuers or a Guarantor (other than intercompany debt owed to the Company or any Restricted Subsidiary and other than Subordinated Indebtedness) received after the Issue Date from Persons who are not the Company, Holdings or any Restricted Subsidiary;
(E) any Designated Non-cash Consideration received by the Company or such Restricted Subsidiary or Parent Entity in such Asset Sale having an aggregate fair market value, as determined by the CompanyFair Market Value, taken together with all other Designated Non-cash Consideration received pursuant to this clause (E) that is at that time outstanding, not to exceed the greater of $225.0 million and 30.05.0% of LTM EBITDA for Consolidated Tangible Assets of the Company and its Restricted Subsidiaries as of the end of the Company’s most recently ended Test Period at fiscal quarter prior to the time of the receipt of |US-DOCS\143900591.2|| date on which such Designated Non-cash Consideration is received (with the fair market value Fair Market Value of each such item of Designated Non-cash Consideration being measured pursuant to this clause (E) at the Company’s option, either at the time of contractually agreeing to such Asset Sale or at the time received and, in either case, without giving effect to subsequent changes in value); and
(F) any Investment, Capital Stock, assets, property or capital or other expenditure of the kind referred to in clauses (2) or (3) of Section 4.10(b) hereof shall be deemed to be Cash Equivalents cash for the purposes of this provision paragraph and for no other purpose.
(b) . Within 540 365 days after the receipt of any Net Proceeds of any from an Asset Sale (the “Proceeds Application Period”)Sale, the Company (or such the applicable Restricted SubsidiarySubsidiary or the Parent Entity, at their option, as the case may be) may apply an amount equal (or cause to the be applied) such Net Proceeds from such Asset Sale,at its option:
(1) to reduce, prepay, repay or purchase:
Indebtedness (Ai) to the extent such Net Proceeds are from an Asset Sale of Collateral, on First Priority Lien Obligations with Pari Passu Lien Priority (including the Senior Credit Facilities or any Refinancing Indebtedness in respect thereof but other than Indebtedness owed to the Company or any Restricted Subsidiary), and, in if the case of Indebtedness or Obligation repaid is revolving obligationscredit Indebtedness, to correspondingly reduce commitments with respect thereto, ) or (ii) Pari Passu Indebtedness (provided that, to that if the extent either Issuer Company or any Restricted Subsidiary will Guarantor shall so repay any such reduce Obligations under Pari Passu Indebtedness (other than which, in the Notes)case of an Asset Sale involving Collateral, shall be Other Second Priority Lien Obligations, the Issuers shall Company will equally and ratably reduce Obligations under the Notes on a pro rata basis by, at their option, (i) redeeming Notes as provided under Section 3.07 hereof (ii) purchasing Notes through open-market purchases or (iii) by making an offer (in accordance with the procedures set forth herein in Section 3.10 hereof and in this Section 4.10 for an Asset Sale Offer) to all Holders to purchase their Notes at a purchase price equal to 100.0100% of the principal amount thereof, plus the amount of accrued but and unpaid interest, if any, on the pro rata principal amount of the Notes to be repurchased to the date of repurchase;
Notes) or (Biii) to the extent such Net Proceeds resulted from an Asset Sale not consisting of Collateral, Obligations in respect of other Secured Indebtedness (which may include the Notes), and, except in the case of revolving commitmentsan Asset Sale involving Collateral, to correspondingly reduce commitments with respect theretorepay Indebtedness of a Restricted Subsidiary that is not a Guarantor;
(C2) Obligations in respect to acquire all or substantially all of the Notes 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 Company;
(3) to make capital expenditures; or
(4) to acquire or make capitalized repairs to other Indebtedness assets that are not classified as current assets under GAAP and that are used or useful in a Permitted Business, or enter into a binding commitment regarding clauses (other than Subordinated Indebtedness2), (3) or (4) above, provided that such binding commitment shall be treated as a permitted application of Net Proceeds from the date of such commitment until the earlier of (x) the date on which 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 consummated on or before such 180th day and the Company or any such Restricted SubsidiarySubsidiary shall not have applied such Net Proceeds pursuant to clauses (1)-(4) of this paragraph on or before such 180th day, other than Indebtedness owed such commitment shall be deemed not to have been a permitted application of Net Proceeds. Notwithstanding the foregoing, neither the Company nor one or more of its Restricted Subsidiaries shall engage in an Asset Sale in which the purchaser or transferee is the Parent Entity. Pending the final application of any Restricted Subsidiary (andNet 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 case second paragraph of revolving commitmentsthis Section 4.10 will constitute “Excess Proceeds.” When the aggregate amount of Excess Proceeds exceeds $15.0 million, within ten days thereof, the Company will make an Asset Sale Offer to correspondingly reduce commitments all Holders of Notes and all holders of other Pari Passu Indebtedness containing provisions similar to those set forth in this Indenture with respect thereto), provided that, to offers to purchase or redeem with the extent either Issuer or any Restricted Subsidiary will so repay any such Indebtedness (other than the Notes), the Issuers will reduce Obligations under the Notes on a pro rata basis by, at their option, (i) redeeming Notes as provided under Section 3.07 hereof or (ii) by making an offer (proceeds of sales of assets in accordance with Section 3.10 hereof to purchase the procedures set forth herein for an 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) to all Holders to purchase their Notes at a purchase price Offer will be equal to 100.0100% of the principal amount thereof, plus the amount of accrued but and unpaid interest, if any, on the principal amount of the Notes to be repurchased interest to the date of repurchase; or |US-DOCS\143900591.2||
(D) Obligations purchase and will be payable in respect cash. If any Excess Proceeds remain after consummation of Indebtedness of a Non-Guarantor Subsidiaryan Asset Sale Offer, other than Indebtedness owed to the Company or another Restricted Subsidiary; providedmay 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, in the case Trustee shall select the Notes and such other Pari Passu Indebtedness to be purchased on a pro rata basis. Upon completion of clauses (A) or (C) aboveeach Asset Sale Offer, (i) if an offer to purchase any Indebtedness the amount of the Company or any Restricted Subsidiary is made, such amount Excess Proceeds will be deemed repaid reset at zero. The Company will comply with the requirements of Rule 14e-1 under the Exchange Act and any other securities laws and regulations thereunder to the extent such laws and regulations are applicable in connection with each repurchase of Notes pursuant to an Asset Sale Offer. To the amount extent that the provisions of such offerany securities laws or regulations conflict with the provisions of Section 3.10 hereof, whether this Section 4.10 or Section 4.11, the Company will comply with the applicable securities laws and regulations and will not accepted by the holders of such Indebtedness, and no Net Proceeds in the amount of such offer will be deemed to exist following such offerhave breached its obligations under Section 3.09 hereof, and (ii) if the holder of any Indebtedness of a Restricted Subsidiary of the Company declines the repayment this Section 4.10 or Section 4.11 by virtue of such Indebtedness owed to it from such Net Proceeds such amount will be deemed repaid to the extent of the declined Net Proceeds, or
(2) 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 that results in the Company or any Restricted Subsidiary, as the case may be, owning an amount of the Capital Stock of such business such that such business constitutes a Restricted Subsidiary or increases the Company’s direct or indirect percentage ownership of the Capital Stock of a Restricted Subsidiary;compliance.
Appears in 1 contract
Sources: Indenture (Appvion, Inc.)
Asset Sales. (a) From and after the Completion Date, the The Company shall not consummatenot, and shall not permit any of its Restricted Subsidiaries to to, consummate, directly or indirectly, an Asset Sale, Sale (including (x) the sale or issuance of Equity Interests in a Restricted Subsidiary and (y) any Sale Leaseback) unless:
(1) the Company or such Restricted Subsidiary, as the case may be, receives consideration at the time of such Asset Sale at least equal to the fair market value (as determined in good faith by the Company at the time of contractually agreeing to such Asset Sale) of the assets sold or otherwise disposed ofis made for Fair Market Value; and
(2) except in the case of a Permitted Asset Swap, if a Sale Leaseback or the property or assets sold or otherwise disposed Disposition of have a fair market value Multiplex theatre, in any such Asset Sale with a purchase price in excess of the greater of (x) $375.0 million 50,000,000 and 50.0(y) 5% of LTM Consolidated EBITDA for the most recently ended Test Period at the time of such dispositionPeriod, at least 75.075% of the consideration therefor for such Asset Sale, together with all other Asset Sales completed or contractually agreed upon since the Issue Date, received by the Company or such Restricted Subsidiary, as the case may be, Subsidiary is in the form of cash or Cash Equivalents.
(b) Within 450 days after receipt of any Net Proceeds from any Asset Sale (the “Asset Sale Proceeds Application Period”), the Company or such Restricted Subsidiary, at its option, may apply an amount equal to the Net Proceeds from such Asset Sale (the “Applicable Proceeds”)
(1) to the extent the assets or property disposed of in the Asset Sale constituted Collateral, to repay (i) Obligations under the Senior Credit Facilities, (ii) Obligations under the Existing First Lien Notes, (iii) Obligations under the New First Lien Notes, (iv) Obligations under the Silver Lake First Lien Notes, (v) Obligations under the Securities or (vi) any Additional First Lien Obligations and in each case, in the case of revolving obligations, to correspondingly reduce commitments with respect thereto; provided that the Company or such Restricted Subsidiary will either (A) reduce the aggregate principal amount ofof Obligations under the Securities on a ratable basis with any such First Lien Obligations repaid pursuant to this clause (1) by purchasing Securities through open-market purchases or in privately negotiated transactions (which may be below par) and/or (B) make an offer (in accordance with the provisions set forth below for an Asset Sale Offer) to all Holders to purchase their Securities on a ratable basis with any First Lien Obligations repaid pursuant to this clause (1) for no less than 100% of the principal amount thereof, plus the amount of accrued and unpaid interest, if any, thereon (which offer shall be deemed to be an Asset Sale Offer for purposes hereof).
(2) to the extent the assets or property disposed of in the Asset Sale did not constitute Collateral:
(i) to repay (u) Obligations under the Senior Credit Facilities, (v) Obligations under the Existing First Lien Notes, (w) Obligations under the Silver Lake First Lien Notes, (x) Obligations under the New First Lien Notes, (y) Obligations under the Securities or (z) any Additional First Lien Obligations and, in each case, in the case of revolving obligations, to correspondingly reduce commitments with respect thereto; provided that the Company or such Restricted Subsidiary will either (A) reduce the aggregate principal amount of Obligations under the Securities on a ratable basis with any liabilitiessuch First Lien Obligations repaid pursuant to this clause (2)(i) by purchasing Securities through open-market purchases or in privately negotiated transactions (which may be below par) and/or (B) make an offer (in accordance with the provisions set forth below for an Asset Sale Offer) to all Holders to purchase their Securities on a ratable basis with any First Lien Obligations repaid pursuant to this clause (2)(i) for no less than 100% of the principal amount thereof, contingent plus the amount of accrued and unpaid interest, if any, thereon (which offer shall be deemed to be an Asset Sale Offer for purposes hereof); or
(ii) to repay Obligations under any Senior Indebtedness (other than any Senior Indebtedness referred to in clause (2)(i) above) and in each case, in the case of revolving obligations, to correspondingly reduce commitments with respect thereto; provided that the Company or otherwisesuch Restricted Subsidiary will either (A) reduce the aggregate principal amount of Obligations under the Securities on a ratable basis with any such Senior Indebtedness repaid pursuant to this clause (2)(ii) by purchasing Securities through open-market purchases or in privately negotiated transactions (which may be below par) and/or (B) make an offer (in accordance with the provisions set forth below for an Asset Sale Offer) to all Holders to purchase their Securities on a ratable basis with any Senior repaid pursuant to this clause (2)(ii) for no less than 100% of the principal amount thereof, plus the amount of accrued and unpaid interest, if any, thereon (which offer shall be deemed to be an Asset Sale Offer for purposes hereof);
(3) to invest in the business of the Company and its Subsidiaries (including any acquisition or other Investment permitted under this Indenture); or
(4) any combination of the foregoing;
(c) provided that, in the case of clause (3) above, a binding commitment or letter of intent shall be treated as a permitted application of the Applicable Proceeds from the date of such commitment or letter of intent so long as the Company or such Restricted Subsidiary enters into such commitment or letter of intent with the good faith expectation that such Applicable Proceeds will be applied to satisfy such commitment or letter of intent within 180 days of the expiration of the Asset Sale Proceeds Application Period (an “Acceptable Commitment”) and such Applicable Proceeds are actually applied in such manner within 180 days of the expiration of the Asset Sale Proceeds Application Period (the period from the consummation of the Asset Sale to such date, the “Commitment Application Period”), and, in the event any Acceptable Commitment is later cancelled or terminated for any reason after the expiration of the Asset Sale Proceeds Application Period and before the Applicable Proceeds are applied in connection therewith, then such Applicable Proceeds shall constitute Excess Proceeds unless the Company or such Restricted Subsidiary reasonably expects to enter into another Acceptable Commitment prior to the expiration of the Asset Sale Proceeds Application Period and such Applicable Proceeds are actually applied in such manner prior to the expiration of the Commitment Application Period. To the extent Applicable Proceeds from an Asset Sale exceed amounts that are invested or applied as provided and within the time period set forth in Section 4.10(b), such excess amount will be deemed to constitute “Excess Proceeds”; provided that any amount of Applicable Proceeds offered to Holders of any Securities pursuant to clauses (1) or (2) above shall not be deemed to be Excess Proceeds without regard to whether such offer is accepted by any Holders.If at any time the aggregate amount of Excess Proceeds exceeds $100.0 million, then the Company shall within 20 Business Days make an offer to all Holders and, if required or permitted by the terms of any other First Lien Obligations and/or, to the extent that the assets or property disposed of in the Asset Sale were not Collateral, Indebtedness that is pari passu in right of payment with the Securities (“Pari Passu Indebtedness”), to the Holders of such First Lien Obligations and/or Pari Passu Indebtedness, as applicable (an “Asset Sale Offer”), to purchase the maximum aggregate principal amount (or accreted value, as applicable) of the Securities and such First Lien Obligations and/or Pari Passu Indebtedness, as applicable, out of the amount of the Excess Proceeds (in the case of any First Lien Obligations and/or Pari Passu Indebtedness, if applicable, in accordance with the documents governing such First Lien Obligations and/or Pari Passu Indebtedness). The Company shall commence an Asset Sale Offer by sending the notice required pursuant to the terms of Section 13.07. The Company may satisfy the foregoing obligation with respect to such Applicable Proceeds from an Asset Sale by making an Asset Sale Offer in advance of being required to do so by this Indenture (an “Advance Offer”) with respect to all or part of the available Applicable Proceeds (the “Advance Portion”).
(d) If the aggregate principal amount (or accreted value, as applicable) of Securities and, if applicable, First Lien Obligations and/or Pari Passu Indebtedness, tendered pursuant to an Asset Sale Offer is less than the Excess Proceeds (or, in the case of an Advance Offer, the Advance Portion), the Company may use any remaining Excess Proceeds (or, in the case of an Advance Offer, the Advance Portion) in any manner not prohibited by this Indenture. Upon completion of any such Asset Sale Offer, the amount of Excess Proceeds shall be reset at zero (regardless of whether there are any remaining Excess Proceeds upon such completion), and in the case of an Advance Offer, the Advance Portion shall be excluded in subsequent calculations of Excess Proceeds.
(e) Pending the final application of an amount equal to the Applicable Proceeds pursuant to this Section 4.10, the holder of such Applicable Proceeds may apply any Applicable Proceeds temporarily to reduce Indebtedness outstanding under a revolving credit facility (including under the Senior Credit Facilities) or otherwise invest such Applicable Proceeds in any manner not prohibited by this Indenture. For the avoidance of doubt, the Company may apply any Retained Declined Proceeds in any manner not prohibited by this Indenture and such Retained Declined Proceeds shall in no event and under no circumstances constitute Excess Proceeds.
(f) Notwithstanding anything in this Indenture to the contrary, (i) to the extent that any of or all the Applicable Proceeds received by a Foreign Subsidiary are prohibited or delayed under any Requirements of Law from being repatriated to the Company, the portion of such Applicable Proceeds so affected will not be required to be applied in compliance with this Section 4.10 and shall not constitute Excess Proceeds and may be retained by the applicable Foreign Subsidiary so long, but only so long, as the applicable Requirement of Law will not permit repatriation to the Company (the Company hereby agreeing to cause the applicable Foreign Subsidiary to promptly take all actions reasonably required by the applicable Requirement of Law to permit such repatriation), and once such repatriation of any of such affected Net Proceeds is permitted under the applicable Requirement of Law, such repatriation will be promptly effected and such repatriated Applicable Proceeds will be promptly applied (net of additional taxes payable or reserved against as a result thereof) in compliance with this Section 4.10, and (ii) to the extent that and for so long as the Company has determined in good faith that repatriation of any of or all the Applicable Proceeds would have a material adverse tax consequence (taking into account any foreign tax credit or benefit actually realized in connection with such repatriation), the Applicable Proceeds so affected will not be required to be applied in compliance with this Section 4.10 and shall not constitute Excess Proceeds and may be retained by the applicable Foreign Subsidiary; provided that when the Company determines in good faith that repatriation of any of or all the Applicable Proceeds received by a Foreign Subsidiary would no longer have a material adverse tax consequence (taking into account any foreign tax credit or benefit actually realized in connection with such repatriation), such Applicable Proceeds shall be promptly applied (net of additional taxes payable or reserved against as a result thereof) in compliance with this Section 4.10.
(g) For purposes of clause (a)(2) of this Section 4.10 (and no other provision), the following shall be deemed to be cash or Cash Equivalents:
(1) the greater of the principal amount and carrying value of any liabilities (as reflected on the most recent balance sheet of the Company (or a Parent Entity) provided hereunder or in the footnotes thereto), or if incurred, accrued or increased subsequent to the date of such balance sheet, such liabilities that would have been reflected on the balance sheet of the Company (or Parent Entity) or in the footnotes thereto if such incurrence, accrual or increase had taken place on or prior to the date of such balance sheet, as determined in good faith by the Company) of the Company or such Restricted Subsidiary, other than liabilities that are by their terms subordinated to the Secured Notes or Obligations, that are owed to the Company or a Restricted Subsidiary that (x) are assumed by the transferee of any such assets (or a third party in connection with such transfer) or (y) are otherwise cancelled or terminated extinguished in connection with the transaction with transactions relating to such transferee (other than intercompany debt owed Asset Sale) pursuant to a written agreement which releases the Company or its such Restricted Subsidiaries) and, in each case, for which the Company and all of its Restricted Subsidiaries have been validly released,Subsidiary from such liabilities;
(B2) any securities, notes or other obligations or assets securities received by the Company or such Restricted Subsidiary from such transferee that are converted by the Company or such Restricted Subsidiary into cash or Cash Equivalents (to the extent of the cash or Cash Equivalents received) within 180 days following the closing of such the applicable Asset Sale;; and
(C) Indebtedness of any Restricted Subsidiary that ceases to be a Restricted Subsidiary as a result of such Asset Sale (other than intercompany debt owed to the Company or any Restricted Subsidiary), to the extent that the Company and each other Restricted Subsidiary are released from any guarantee of payment of the principal amount of such Indebtedness in connection with such Asset Sale in accordance with the terms of this Indenture;
(D) consideration consisting of Indebtedness of the Issuers or a Guarantor (other than intercompany debt owed to the Company or any Restricted Subsidiary and other than Subordinated Indebtedness) received after the Issue Date from Persons who are not the Company, Holdings or any Restricted Subsidiary;
(E3) any Designated Non-cash Cash Consideration received by the Company or such Restricted Subsidiary in respect of such Asset Sale having an aggregate fair market value, as determined by the CompanyFair Market Value, taken together with all other Designated Non-cash Cash Consideration received pursuant to this clause (E3) that is at that time outstanding, not to exceed in excess (at the greater time of $225.0 million and 30.0receipt of such Designated Non-Cash Consideration) of 5% of LTM EBITDA Consolidated Total Assets for the most recently ended Test Period at as of the time of the receipt of |US-DOCS\143900591.2|| such Designated Non-cash Consideration (Cash Consideration, with the fair market value Fair Market Value of each such item of Designated Non-cash Cash Consideration being measured pursuant to this clause (E) at the Company’s option, either at the time of contractually agreeing to such Asset Sale or at the time received and, in either case, and without giving effect to subsequent changes in value); and
(F) any Investment, Capital Stock, assets, property or capital or other expenditure of the kind referred to in clauses (2) or (3) of Section 4.10(b) hereof shall be deemed to be Cash Equivalents for purposes of this provision and for no other purpose.
(bh) Within 540 days after The Company shall comply with the receipt requirements of Rule 14e-1 under the Exchange Act and any Net Proceeds of any Asset Sale (the “Proceeds Application Period”), the Company or such Restricted Subsidiary, at their option, may apply an amount equal to the Net Proceeds from such Asset Sale,
(1) to reduce, prepay, repay or purchase:
(A) other securities laws and regulations thereunder to the extent such Net Proceeds laws or regulations are from applicable in connection with the repurchase of the Securities pursuant to an Asset Sale Offer or an Advance Offer. To the extent that the provisions of Collateralany securities laws or regulations conflict with the asset sale provisions of this Indenture, Obligations with Pari Passu Lien Priority (including the Senior Credit Facilities or any Refinancing Indebtedness in respect thereof but other than Indebtedness owed to the Company or any Restricted Subsidiary), and, in shall comply with the case of revolving obligations, applicable securities laws and regulations and shall not be deemed to correspondingly reduce commitments with respect thereto, provided that, to the extent either Issuer or any Restricted Subsidiary will so repay any such Indebtedness (other than the Notes), the Issuers shall reduce Obligations have breached its obligations under the Notes on a pro rata basis by, at their option, asset sale provisions of this Indenture by virtue of such compliance.
(i) redeeming Notes as provided under Section 3.07 hereof (ii) purchasing Notes through open-market purchases or (iii) by making The provisions of this Indenture relating to the Company’s obligation to make an offer (in accordance with to repurchase the procedures set forth herein for Securities as a result of an Asset Sale Offer) to all Holders to purchase their Notes may be waived or modified at a purchase price equal to 100.0% any time with the written consent of the principal amount thereof, plus the amount Holders of accrued but unpaid interest, if any, on the a majority in aggregate principal amount of the Notes to be repurchased to the date of repurchase;
(B) to the extent such Net Proceeds resulted from an Securities then outstanding. An Asset Sale not consisting of Collateral, Obligations in respect of other Secured Indebtedness (which Offer or Advance Offer may include be made at the Notes), and, in the case of revolving commitments, to correspondingly reduce commitments same time as consents are solicited with respect thereto;
(C) Obligations in respect to an amendment, supplement or waiver of this Indenture, the Securities and/or the Guarantees so long as the tender of the Notes or any other Indebtedness (other than Subordinated Indebtedness) Securities by a Holder is not conditioned upon the delivery of the Company or any Restricted Subsidiary, other than Indebtedness owed to the Company or any Restricted Subsidiary (and, in the case of revolving commitments, to correspondingly reduce commitments with respect thereto), provided that, to the extent either Issuer or any Restricted Subsidiary will so repay any consents by such Indebtedness (other than the Notes), the Issuers will reduce Obligations under the Notes on a pro rata basis by, at their option, (i) redeeming Notes as provided under Section 3.07 hereof or (ii) by making an offer (in accordance with the procedures set forth herein for an Asset Sale Offer) to all Holders to purchase their Notes at a purchase price equal to 100.0% of the principal amount thereof, plus the amount of accrued but unpaid interest, if any, on the principal amount of the Notes to be repurchased to the date of repurchase; or |US-DOCS\143900591.2||
(D) Obligations in respect of Indebtedness of a Non-Guarantor Subsidiary, other than Indebtedness owed to the Company or another Restricted Subsidiary; provided, in the case of clauses (A) or (C) above, (i) if an offer to purchase any Indebtedness of the Company or any Restricted Subsidiary is made, such amount will be deemed repaid to the extent of the amount of such offer, whether or not accepted by the holders of such Indebtedness, and no Net Proceeds in the amount of such offer will be deemed to exist following such offer, and (ii) if the holder of any Indebtedness of a Restricted Subsidiary of the Company declines the repayment of such Indebtedness owed to it from such Net Proceeds such amount will be deemed repaid to the extent of the declined Net Proceeds, or
(2) 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 that results in the Company or any Restricted Subsidiary, as the case may be, owning an amount of the Capital Stock of such business such that such business constitutes a Restricted Subsidiary or increases the Company’s direct or indirect percentage ownership of the Capital Stock of a Restricted Subsidiary;Holder.
Appears in 1 contract
Asset Sales. (a) From and after the Completion Date, the The Company shall not consummatenot, and shall not permit any of its Restricted Subsidiaries to consummateto, consummate an Asset Sale, Sale unless:
(1i) the Company (or such the Restricted Subsidiary, as the case may be, ) receives consideration at the time of such Asset Sale at least equal to the fair market value (as determined in good faith by the Company at the time of contractually agreeing to such Asset Sale) of the assets or Equity Interests issued or sold or otherwise disposed of;
(ii) such fair market value is determined by the Company's Board of Directors and evidenced by a resolution of the Board of Directors set forth in an Officers' Certificate delivered to the Trustee; and
(2iii) except in the case of a Permitted Asset Swap, if the property or assets sold or otherwise disposed of have a fair market value in excess of the greater of $375.0 million and 50.0% of LTM EBITDA for the most recently ended Test Period at the time of such disposition, at least 75.075% of the consideration therefor received by the Company or such Restricted Subsidiary, as the case may be, Subsidiary is in the form of cash or Cash Equivalents; provided that Replacement Assets or a combination of both. For purposes of this clause, each of the amount offollowing shall be deemed to be cash:
(A) any liabilities, contingent liabilities (as shown on the Company's or otherwisesuch Restricted Subsidiary's most recent balance sheet), of the Company or such any Restricted Subsidiary, Subsidiary (other than liabilities contingent liabilities, Indebtedness that are is by their its terms subordinated to the Notes or that are any Note Guarantee and liabilities to the extent owed to the Company or a Restricted Subsidiary any Affiliate of the Company) that (x) are assumed by the transferee of any such assets (or pursuant to a third party in connection with such transfer) or (y) are otherwise cancelled or terminated in connection with the transaction with such transferee (other than intercompany debt owed to written novation agreement that releases the Company or its such Restricted Subsidiaries) Subsidiary from further liability; and, in each case, for which the Company and all of its Restricted Subsidiaries have been validly released,
(B) any securities, notes or other obligations or assets received by the Company or any such Restricted Subsidiary from such transferee that are converted by the Company or such Restricted Subsidiary into cash or Cash Equivalents (to the extent of the cash or Cash Equivalents receivedreceived in that conversion) within 180 90 days following of the closing of such applicable Asset Sale;
(C) Indebtedness of any Restricted Subsidiary that ceases to be a Restricted Subsidiary as a result of such Asset Sale (other than intercompany debt owed to the Company or any Restricted Subsidiary), to the extent that the Company and each other Restricted Subsidiary are released from any guarantee of payment of the principal amount of such Indebtedness in connection with such Asset Sale in accordance with the terms of this Indenture;
(D) consideration consisting of Indebtedness of the Issuers or a Guarantor (other than intercompany debt owed to the Company or any Restricted Subsidiary and other than Subordinated Indebtedness) received after the Issue Date from Persons who are not the Company, Holdings or any Restricted Subsidiary;
(E) any Designated Non-cash Consideration received by the Company or such Restricted Subsidiary in such Asset Sale having an aggregate fair market value, as determined by the Company, taken together with all other Designated Non-cash Consideration received pursuant to this clause (E) that is at that time outstanding, not to exceed the greater of $225.0 million and 30.0% of LTM EBITDA for the most recently ended Test Period at the time of the receipt of |US-DOCS\143900591.2|| such Designated Non-cash Consideration (with the fair market value of each such item of Designated Non-cash Consideration being measured pursuant to this clause (E) at the Company’s option, either at the time of contractually agreeing to such Asset Sale or at the time received and, in either case, without giving effect to subsequent changes in value); and
(F) any Investment, Capital Stock, assets, property or capital or other expenditure of the kind referred to in clauses (2) or (3) of Section 4.10(b) hereof shall be deemed to be Cash Equivalents for purposes of this provision and for no other purpose.
(b) Within 540 360 days after the receipt of any Net Proceeds of any from an Asset Sale (the “Proceeds Application Period”)Sale, the Company or such Restricted Subsidiary, at their option, may apply an amount equal to the such Net Proceeds from such Asset Sale,
(1) to reduce, prepay, repay or purchaseat its option:
(Ai) to the extent such Net Proceeds are from an Asset Sale of Collateralrepay Senior Debt and, Obligations with Pari Passu Lien Priority (including if the Senior Credit Facilities or any Refinancing Indebtedness in respect thereof but other than Indebtedness owed to the Company or any Restricted Subsidiary), and, in the case of Debt repaid is revolving obligationscredit Indebtedness, to correspondingly reduce commitments with respect thereto, provided that, to the extent either Issuer or any Restricted Subsidiary will so repay any such Indebtedness (other than the Notes), the Issuers shall reduce Obligations under the Notes on a pro rata basis by, at their option, (i) redeeming Notes as provided under Section 3.07 hereof ; or
(ii) purchasing Notes through open-market purchases to purchase Replacement Assets or make a capital expenditure in or that is used or useful in a Permitted Business. 56 Pending the final application of any such Net Proceeds, the Company may temporarily reduce revolving credit borrowings or otherwise invest such Net Proceeds in any manner that is not prohibited by this Indenture.
(iiic) by making Any Net Proceeds from Asset Sales that are not applied or invested as provided in the preceding paragraph shall constitute "Excess Proceeds." Within 10 days after the aggregate amount of Excess Proceeds exceeds $20.0 million, the Company shall make an offer (in accordance with the procedures set forth herein for an "Asset Sale Offer") to all Holders of Notes and all holders of other Indebtedness that is pari passu with the Notes or any Note Guarantee containing provisions similar to those set forth in this Indenture with respect to offers to purchase their with the proceeds of sales of assets, to purchase the maximum principal amount of Notes at a purchase and such other pari passu Indebtedness that may be purchased out of the Excess Proceeds. The offer price in any Asset Sale Offer shall be equal to 100.0100% of the principal amount thereof, plus the amount of accrued but unpaid interest, if any, on the principal amount of the Notes to be repurchased and such other pari passu Indebtedness plus accrued and unpaid interest and Liquidated Damages, if any, to the date of repurchase;
(B) to the extent such Net purchase, and shall be payable in cash. If any Excess Proceeds resulted from remain after consummation of an Asset Sale Offer, the Company may use such Excess Proceeds for any purpose not consisting otherwise prohibited by this Indenture. If the aggregate principal amount of CollateralNotes and such other pari passu Indebtedness tendered into such Asset Sale Offer exceeds the amount of Excess Proceeds, Obligations in respect of other Secured Indebtedness (which may include the Notes), and, in the case of revolving commitments, to correspondingly reduce commitments with respect thereto;
(C) Obligations in respect of the Notes or any and such other pari passu Indebtedness (other than Subordinated Indebtedness) of the Company or any Restricted Subsidiary, other than Indebtedness owed to the Company or any Restricted Subsidiary (and, in the case of revolving commitments, to correspondingly reduce commitments with respect thereto), provided that, to the extent either Issuer or any Restricted Subsidiary will so repay any such Indebtedness (other than the Notes), the Issuers will reduce Obligations under the Notes shall be purchased on a pro rata basis by, at their option, (i) redeeming Notes as provided under Section 3.07 hereof or (ii) by making an offer (in accordance with the procedures set forth herein for an Asset Sale Offer) to all Holders to purchase their Notes at a purchase price equal to 100.0% of the principal amount thereof, plus the amount of accrued but unpaid interest, if any, based on the principal amount of Notes and such other pari passu Indebtedness tendered. Upon completion of each Asset Sale Offer, the Notes to amount of Excess Proceeds shall be repurchased to the date of repurchase; or |US-DOCS\143900591.2||reset at zero.
(Dd) Obligations Any Asset Sale Offer shall be made in respect accordance with Section 3.09. The Company shall comply with the requirements of Indebtedness of a Non-Guarantor Subsidiary, Rule 14e-1 under the Exchange Act and any other than Indebtedness owed to the Company or another Restricted Subsidiary; provided, in the case of clauses (A) or (C) above, (i) if an offer to purchase any Indebtedness of the Company or any Restricted Subsidiary is made, such amount will be deemed repaid securities laws and regulations thereunder to the extent such laws and regulations are applicable in connection with each repurchase of Notes pursuant to an Asset Sale Offer. To the amount extent that the provisions of such offerany securities laws or regulations conflict with this Section 4.10 or Section 3.09, whether or the Company shall comply with the applicable securities laws and regulations and shall not accepted by the holders of such Indebtedness, and no Net Proceeds in the amount of such offer will be deemed to exist following such offer, and (ii) if the holder of any Indebtedness of a Restricted Subsidiary of the Company declines the repayment have breached its obligations under this Section 4.10 or Section 3.09 by virtue of such Indebtedness owed to it from such Net Proceeds such amount will be deemed repaid to the extent of the declined Net Proceeds, or
(2) 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 that results in the Company or any Restricted Subsidiary, as the case may be, owning an amount of the Capital Stock of such business such that such business constitutes a Restricted Subsidiary or increases the Company’s direct or indirect percentage ownership of the Capital Stock of a Restricted Subsidiary;compliance.
Appears in 1 contract
Sources: Indenture (Rayovac Corp)
Asset Sales. (a) From and after the Completion Date, the Company shall not consummateThe Borrower will not, and shall will not permit any of its Restricted Subsidiaries to consummateto, consummate an Asset Sale, Sale unless:
(1i) the Company Borrower (or such 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 (as determined in good faith by the Company at the time of contractually agreeing to such Asset Sale) Fair Market Value of the Equity Interests or other assets issued or sold or otherwise disposed of; and
(2ii) except in the case of a Permitted Asset Swap, if the property or assets sold or otherwise disposed of have a fair market value in excess of the greater of $375.0 million and 50.0% of LTM EBITDA for the most recently ended Test Period at the time of such disposition, (a) at least 75.075% of the consideration therefor received in the Asset Sale by the Company Borrower or such Restricted Subsidiary, as the case may be, Subsidiary is in the form of cash or Cash Equivalents; provided that (b) the amount ofFair Market Value of all forms of consideration other than cash received for all Asset Sales since the Closing Date does not exceed in the aggregate 10% of the Adjusted Consolidated Net Tangible Assets of the Borrower at the time each determination is made. For purposes of this provision, each of the following shall be deemed to be cash:
(A) any liabilities, contingent or otherwiseas shown on the Borrower’s most recent consolidated balance sheet, of the Company Borrower or such any Restricted Subsidiary, Subsidiary (other than contingent liabilities and Subordinated Obligations) that are by their terms subordinated to the Notes or that are owed to the Company or a Restricted Subsidiary that (x) are assumed by the transferee of any such assets (pursuant to a customary novation agreement that releases the Borrower or a third party in connection with such transfer) or (y) are otherwise cancelled or terminated in connection with the transaction with such transferee (other than intercompany debt owed to the Company or its Restricted Subsidiaries) and, in each case, for which the Company and all of its Restricted Subsidiaries have been validly released,Subsidiary from further liability;
(B) any securities, notes or other obligations or assets received by the Company Borrower or any such Restricted Subsidiary from such transferee that are converted by the Company Borrower or such Restricted Subsidiary into cash or Cash Equivalents (within 180 days after the date of the Asset Sale, to the extent of the cash or Cash Equivalents received) within 180 days following the closing of such Asset Salereceived in that conversion;
(C) Indebtedness of any Restricted Subsidiary that ceases to be a Restricted Subsidiary as a result of such Asset Sale (other than intercompany debt owed to the Company stock or any Restricted Subsidiary), to the extent that the Company and each other Restricted Subsidiary are released from any guarantee of payment of the principal amount of such Indebtedness in connection with such Asset Sale in accordance with the terms of this Indenture;
(D) consideration consisting of Indebtedness of the Issuers or a Guarantor (other than intercompany debt owed to the Company or any Restricted Subsidiary and other than Subordinated Indebtedness) received after the Issue Date from Persons who are not the Company, Holdings or any Restricted Subsidiary;
(E) any Designated Non-cash Consideration received by the Company or such Restricted Subsidiary in such Asset Sale having an aggregate fair market value, as determined by the Company, taken together with all other Designated Non-cash Consideration received pursuant to this clause (E) that is at that time outstanding, not to exceed the greater of $225.0 million and 30.0% of LTM EBITDA for the most recently ended Test Period at the time of the receipt of |US-DOCS\143900591.2|| such Designated Non-cash Consideration (with the fair market value of each such item of Designated Non-cash Consideration being measured pursuant to this clause (E) at the Company’s option, either at the time of contractually agreeing to such Asset Sale or at the time received and, in either case, without giving effect to subsequent changes in value); and
(F) any Investment, Capital Stock, assets, property or capital or other expenditure assets of the kind referred to in clauses (2) or (3) of Section 4.10(b) hereof shall be deemed to be Cash Equivalents for purposes of this provision and for no other purpose.
(b) Within 540 days after the receipt of any Net Proceeds of any Asset Sale (the “Proceeds Application Period”), the Company or such Restricted Subsidiary, at their option, may apply an amount equal to the Net Proceeds from such Asset Sale,
(1) to reduce, prepay, repay or purchase:
(A) to the extent such Net Proceeds are from an Asset Sale of Collateral, Obligations with Pari Passu Lien Priority (including the Senior Credit Facilities or any Refinancing Indebtedness in respect thereof but other than Indebtedness owed to the Company or any Restricted Subsidiary), and, in the case of revolving obligations, to correspondingly reduce commitments with respect thereto, provided that, to the extent either Issuer or any Restricted Subsidiary will so repay any such Indebtedness (other than the Notes), the Issuers shall reduce Obligations under the Notes on a pro rata basis by, at their option, (i) redeeming Notes as provided under Section 3.07 hereof clause (ii) purchasing Notes through open-market purchases or (iii) by making an offer (in accordance with the procedures set forth herein for an Asset Sale Offer) to all Holders to purchase their Notes at a purchase price equal to 100.0% of the principal amount thereof, plus the amount next paragraph of accrued but unpaid interest, if any, on the principal amount of the Notes to be repurchased to the date of repurchase;
(B) to the extent such Net Proceeds resulted from an Asset Sale not consisting of Collateral, Obligations in respect of other Secured Indebtedness (which may include the Notes), this Section 6.10; and, in the case of revolving commitments, to correspondingly reduce commitments with respect thereto;
(C) Obligations in respect of the Notes or any other Indebtedness (other than Subordinated Indebtedness) of the Company or any Restricted Subsidiary, other than Indebtedness owed to the Company or any Restricted Subsidiary (and, in the case of revolving commitments, to correspondingly reduce commitments with respect thereto), provided that, to the extent either Issuer or any Restricted Subsidiary will so repay any such Indebtedness (other than the Notes), the Issuers will reduce Obligations under the Notes on a pro rata basis by, at their option, (i) redeeming Notes as provided under Section 3.07 hereof or (ii) by making an offer (in accordance with the procedures set forth herein for an Asset Sale Offer) to all Holders to purchase their Notes at a purchase price equal to 100.0% of the principal amount thereof, plus the amount of accrued but unpaid interest, if any, on the principal amount of the Notes to be repurchased to the date of repurchase; or |US-DOCS\143900591.2||
(D) Obligations in respect of Indebtedness accounts receivable of a Non-Guarantor Subsidiary, other than Indebtedness owed to the Company or another Restricted Subsidiary; provided, in the case of clauses (A) or (C) above, (i) if an offer to purchase any Indebtedness of the Company or any Restricted Subsidiary is made, such amount will be deemed repaid to the extent of the amount of such offer, whether or not accepted business retained by the holders of such Indebtedness, and no Net Proceeds in the amount of such offer will be deemed to exist following such offer, and (ii) if the holder of any Indebtedness of a Restricted Subsidiary of the Company declines the repayment of such Indebtedness owed to it from such Net Proceeds such amount will be deemed repaid to the extent of the declined Net Proceeds, or
(2) 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 that results in the Company Borrower or any Restricted Subsidiary, as the case may be, owning following the sale of such business; provided that such accounts receivable are not (i) past due more than 90 days and (ii) do not have a payment date greater than 120 days from the date of the invoice creating such accounts receivable.
(b) Within 360 days after the receipt of any Net Proceeds from an Asset Sale, or, if the Borrower has entered into a binding commitment or commitments with respect to the actions described in clause (ii) or (iii) below, within 540 days after the receipt of any Net Proceeds from an Asset Sale, the Borrower (or the applicable Restricted Subsidiary, as the case may be) may apply such Net Proceeds:
(i) (A) if the Asset Sale is a Collateral Disposition, to repay, prepay, redeem or repurchase Priority Lien Debt, the Obligations and other outstanding Parity Lien Obligations (provided that with respect to Parity Lien Debt, such repayment, prepayment, redemption or repurchase must be made either by a pro rata redemption or repayment of outstanding Parity Lien Debt or by an offer to purchase on a pro rata basis made to all holders of Parity Lien Debt) or (B) if the Asset Sale is not a Collateral Disposition, to repay, prepay, redeem or repurchase Indebtedness of the Borrower or another Restricted Person that is not subordinated in right of payment to the Loans (but, in each case, excluding intercompany Indebtedness of the Borrower or any Restricted Person or any of its Affiliates);
(ii) invest in Additional Assets;
(iii) to make capital expenditures in respect of the Borrower’s or its Restricted Subsidiaries’ Oil and Gas Business; or
(iv) any combination of the foregoing. Pending the application of any Net Proceeds in the manner provided above, the Borrower or any Restricted Subsidiary may invest the Net Proceeds in any manner that is not prohibited by this Agreement.
(c) Any Net Proceeds from Asset Sales that are not applied or invested as provided in Section 6.10(b) will constitute “Excess Proceeds”. Within five days after the date that the aggregate amount of Excess Proceeds exceeds $20.0 million, the Capital Stock Borrower will make an Asset Sale Offer to all Lenders and (i) with respect to Excess Proceeds from any Asset Sale that is a Collateral Disposition, all holders of other Parity Lien Obligations, or (ii) with respect to other Excess Proceeds, all holders of other Indebtedness that is pari passu with the Loans containing provisions similar to those set forth in this Agreement (such business applicable holders of other Parity Lien Obligations in other pari passu Indebtedness, the “Other Offer Parties”) with respect to offers to purchase, repay or redeem with the proceeds of sales of assets in accordance with Section 2.6 hereof to purchase or repay on a pro rata basis the maximum principal amount of Loans and such other Indebtedness that such business constitutes a Restricted Subsidiary may be purchased or increases the Company’s direct or indirect percentage ownership repaid out of the Capital Stock 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 or repayment, and will be payable in cash. If any Excess Proceeds remain after consummation of an Asset Sale Offer, the Borrower may use those Excess Proceeds for any purpose not otherwise prohibited by this Agreement. If the aggregate principal amount of Loans tendered into such Asset Sale Offer exceeds the amount of Excess Proceeds allocated for the repayment of Loans pursuant to the Asset Sale offer, the Administrative Agent shall repay the Loans on a Restricted Subsidiary;pro rata basis. Upon completion of each Asset Sale Offer, the amount of Excess Proceeds will be reset at zero.
Appears in 1 contract
Asset Sales. (a) From and after the Completion Date, the The Company shall not consummatenot, and shall not permit any of its Restricted Subsidiaries to to, consummate, directly or indirectly, an Asset Sale, Sale (including (x) the sale or issuance of Equity Interests in a Restricted Subsidiary and (y) any Sale Leaseback) unless:
(1) the Company or such Restricted Subsidiary, as the case may be, receives consideration at the time of such Asset Sale at least equal to the fair market value (as determined in good faith by the Company at the time of contractually agreeing to such Asset Sale) of the assets sold or otherwise disposed ofis made for Fair Market Value; and
(2) except in the case of a Permitted Asset Swap, if a Sale Leaseback or the property or assets sold or otherwise disposed Disposition of have a fair market value Multiplex theatre, in any such Asset Sale with a purchase price in excess of the greater of (x) $375.0 million 50,000,000 and 50.0(y) 5% of LTM Consolidated EBITDA for the most recently ended Test Period at the time of such dispositionPeriod, at least 75.075% of the consideration therefor for such Asset Sale, together with all other Asset Sales completed or contractually agreed upon since the Issue Date, received by the Company or such Restricted Subsidiary, as the case may be, Subsidiary is in the form of cash or Cash Equivalents.
(b) Within 450 days after receipt of any Net Proceeds from any Asset Sale (the “Asset Sale Proceeds Application Period”), the Company or such Restricted Subsidiary, at its option, may apply an amount equal to the Net Proceeds from such Asset Sale (the “Applicable Proceeds”),
(1) to the extent the assets or property disposed of in the Asset Sale constituted Collateral, to repay (i) Obligations under the Notes, (ii) Obligations under the Senior Credit Facilities, (iii) [reserved], (iv) [reserved], (v) [reserved], or (vi) any Additional First Lien Obligations and in each case, in the case of revolving obligations, to correspondingly reduce commitments with respect thereto;
(2) to the extent the assets or property disposed of in the Asset Sale did not constitute Collateral:
(i) to repay (u) Obligations under the Notes, (v) Obligations under the Senior Credit Facilities, (w) [reserved], (x) [reserved], (y) [reserved], or (z) any Additional First Lien Obligations; or
(ii) to repay Obligations under any Senior Indebtedness (other than any Senior Indebtedness referred to in clause 4.16(b)(2)(i) above) and in each case, in the case of revolving obligations, to correspondingly reduce commitments with respect thereto; provided that the Company or such Restricted Subsidiary will either (A) reduce the aggregate principal amount ofof Obligations under the Notes on a ratable basis with any such Senior Indebtedness repaid pursuant to this clause 4.16(b)(2)(ii) by, at its option, (x) redeeming Notes as provided under Article 3 and/or (y) purchasing Notes through open-market purchases or in privately negotiated transactions (which may be below par) and/or (B) make an offer (in accordance with the provisions set forth below for an Asset Sale Offer) to all Holders to purchase their Notes on a ratable basis with any Senior Indebtedness repaid pursuant to this clause 4.16(b)(2)(ii) for no less than 100% of the principal amount thereof, plus the amount of accrued and unpaid interest, if any, thereon (which offer shall be deemed to be an Asset Sale Offer for purposes hereof);
(3) to invest in the business of the Company and its Subsidiaries (including any acquisition or other Investment permitted under this Indenture); or
(4) any combination of the foregoing; provided that, in the case of clause (3) above, a binding commitment or letter of intent shall be treated as a permitted application of the Applicable Proceeds from the date of such commitment or letter of intent so long as the Company or such Restricted Subsidiary enters into such commitment or letter of intent with the good faith expectation that such Applicable Proceeds will be applied to satisfy such commitment or letter of intent within 180 days of the expiration of the Asset Sale Proceeds Application Period (an “Acceptable Commitment”) and such Applicable Proceeds are actually applied in such manner within 180 days of the expiration of the Asset Sale Proceeds Application Period (the period from the consummation of the Asset Sale to such date, the “Commitment Application Period”), and, in the event any Acceptable Commitment is later cancelled or terminated for any reason after the expiration of the Asset Sale Proceeds Application Period and before the Applicable Proceeds are applied in connection therewith, then such Applicable Proceeds shall constitute Excess Proceeds unless the Company or such Restricted Subsidiary reasonably expects to enter into another Acceptable Commitment prior to the expiration of the Asset Sale Proceeds Application Period and such Applicable Proceeds are actually applied in such manner prior to the expiration of the Commitment Application Period. To the extent Applicable Proceeds from an Asset Sale exceed amounts that are invested or applied as provided and within the time period set forth in Section 4.16(b), such excess amount will be deemed to constitute “Excess Proceeds”; provided that any amount of Applicable Proceeds offered to Holders of any Notes pursuant to clause (2) above shall not be deemed to be Excess Proceeds without regard to whether such offer is accepted by any Holders. If at any time the aggregate amount of Excess Proceeds exceeds $100.0 million, then the Company shall within 20 Business Days make an offer to all Holders and, if required or permitted by the terms of any other First Lien Obligations and/or, to the extent that the assets or property disposed of in the Asset Sale were not Collateral, Indebtedness that is pari passu in right of payment with the Notes (“Pari Passu Indebtedness”), to the Holders of such First Lien Obligations and/or Pari Passu Indebtedness, as applicable (an “Asset Sale Offer”), to purchase the maximum aggregate principal amount (or accreted value, as applicable) of the Notes and such First Lien Obligations and/or Pari Passu Indebtedness, as applicable, out of the amount of the Excess Proceeds (in the case of any First Lien Obligations and/or Pari Passu Indebtedness, if applicable, is in accordance with the documents governing such First Lien Obligations and/or Pari Passu Indebtedness). The Company shall commence an Asset Sale Offer by sending the notice required pursuant to the terms of Section 3.08. The Company may satisfy the foregoing obligation with respect to such Applicable Proceeds from an Asset Sale by making an Asset Sale Offer in advance of being required to do so by this Indenture (an “Advance Offer”) with respect to all or part of the available Applicable Proceeds (the “Advance Portion”).
(c) If the aggregate principal amount (or accreted value, as applicable) of Notes and, if applicable, First Lien Obligations and/or Pari Passu Indebtedness, tendered pursuant to an Asset Sale Offer is less than the Excess Proceeds (or, in the case of an Advance Offer, the Advance Portion), the Company may use any remaining Excess Proceeds (or, in the case of an Advance Offer, the Advance Portion) in any manner not prohibited by this Indenture. Upon completion of any such Asset Sale Offer, the amount of Excess Proceeds shall be reset at zero (regardless of whether there are any remaining Excess Proceeds upon such completion), and in the case of an Advance Offer, the Advance Portion shall be excluded in subsequent calculations of Excess Proceeds.
(d) Pending the final application of an amount equal to the Applicable Proceeds pursuant to this Section 4.16, the holder of such Applicable Proceeds may apply any Applicable Proceeds temporarily to reduce Indebtedness outstanding under a revolving credit facility (including under the Senior Credit Facilities) or otherwise invest such Applicable Proceeds in any manner not prohibited by this Indenture. For the avoidance of doubt, the Company may apply any Retained Declined Proceeds in any manner not prohibited by this Indenture and such Retained Declined Proceeds shall in no event and under no circumstances constitute Excess Proceeds.
(e) Notwithstanding anything in this Indenture to the contrary, (i) to the extent that any of or all the Applicable Proceeds received by a Foreign Subsidiary are prohibited or delayed under any Requirements of Law from being repatriated to the Company, the portion of such Applicable Proceeds so affected will not be required to be applied in compliance with this Section 4.16 and shall not constitute Excess Proceeds and may be retained by the applicable Foreign Subsidiary so long, but only so long, as the applicable Requirement of Law will not permit repatriation to the Company (the Company hereby agreeing to cause the applicable Foreign Subsidiary to promptly take all actions reasonably required by the applicable Requirement of Law to permit such repatriation), and once such repatriation of any of such affected Net Proceeds is permitted under the applicable Requirement of Law, such repatriation will be promptly effected and such repatriated Applicable Proceeds will be promptly applied (net of additional taxes payable or reserved against as a result thereof) in compliance with this Section 4.16, and (ii) to the extent that and for so long as the Company has determined in good faith that repatriation of any of or all the Applicable Proceeds would have a material adverse tax consequence (taking into account any foreign tax credit or benefit actually realized in connection with such repatriation), the Applicable Proceeds so affected will not be required to be applied in compliance with this Section 4.16 and shall not constitute Excess Proceeds and may be retained by the applicable Foreign Subsidiary; provided that when the Company determines in good faith that repatriation of any of or all the Applicable Proceeds received by a Foreign Subsidiary would no longer have a material adverse tax consequence (taking into account any foreign tax credit or benefit actually realized in connection with such repatriation), such Applicable Proceeds shall be promptly applied (net of additional taxes payable or reserved against as a result thereof) in compliance with this Section 4.16.
(f) For purposes of clause 4.16(a)(2) of this Section 4.16 (and no other provision), the following shall be deemed to be cash or Cash Equivalents:
(A1) the greater of the principal amount and carrying value of any liabilitiesliabilities (as reflected on the most recent balance sheet of the Company (or a Parent Entity) provided hereunder or in the footnotes thereto), contingent or otherwiseif incurred, accrued or increased subsequent to the date of such balance sheet, such liabilities that would have been reflected on the balance sheet of the Company ((or Parent Entity) or in the footnotes thereto) if such incurrence, accrual or increase had taken place on or prior to the date of such balance sheet, as determined in good faith by the Company of the Company or such Restricted Subsidiary, other than liabilities that are by their terms subordinated to the Secured Notes or Obligations, that are owed to the Company or a Restricted Subsidiary that (x) are assumed by the transferee of any such assets (or a third party in connection with such transfer) or (y) are otherwise cancelled or terminated extinguished in connection with the transaction with transactions relating to such transferee (other than intercompany debt owed Asset Sale) pursuant to a written agreement which releases the Company or its such Restricted Subsidiaries) and, in each case, for which the Company and all of its Restricted Subsidiaries have been validly released,Subsidiary from such liabilities;
(B2) any securities, notes or other obligations or assets securities received by the Company or such Restricted Subsidiary from such transferee that are converted by the Company or such Restricted Subsidiary into cash or Cash Equivalents (to the extent of the cash or Cash Equivalents received) within 180 days following the closing of such the applicable Asset Sale;; and
(C) Indebtedness of any Restricted Subsidiary that ceases to be a Restricted Subsidiary as a result of such Asset Sale (other than intercompany debt owed to the Company or any Restricted Subsidiary), to the extent that the Company and each other Restricted Subsidiary are released from any guarantee of payment of the principal amount of such Indebtedness in connection with such Asset Sale in accordance with the terms of this Indenture;
(D) consideration consisting of Indebtedness of the Issuers or a Guarantor (other than intercompany debt owed to the Company or any Restricted Subsidiary and other than Subordinated Indebtedness) received after the Issue Date from Persons who are not the Company, Holdings or any Restricted Subsidiary;
(E3) any Designated Non-cash Cash Consideration received by the Company or such Restricted Subsidiary in respect of such Asset Sale having an aggregate fair market value, as determined by the CompanyFair Market Value, taken together with all other Designated Non-cash Cash Consideration received pursuant to this clause (E3) that is at that time outstanding, not to exceed in excess (at the greater time of $225.0 million and 30.0receipt of such Designated Non-Cash Consideration) of 5% of LTM EBITDA Consolidated Total Assets for the most recently ended Test Period at as of the time of the receipt of |US-DOCS\143900591.2|| such Designated Non-cash Consideration (Cash Consideration, with the fair market value Fair Market Value of each such item of Designated Non-cash Cash Consideration being measured pursuant to this clause (E) at the Company’s option, either at the time of contractually agreeing to such Asset Sale or at the time received and, in either case, and without giving effect to subsequent changes in value); and
(F) any Investment, Capital Stock, assets, property or capital or other expenditure of the kind referred to in clauses (2) or (3) of Section 4.10(b) hereof shall be deemed to be Cash Equivalents for purposes of this provision and for no other purpose.
(bg) Within 540 days after The Company shall comply with the receipt requirements of Rule 14e-1 under the Exchange Act and any Net Proceeds of any Asset Sale (the “Proceeds Application Period”), the Company or such Restricted Subsidiary, at their option, may apply an amount equal to the Net Proceeds from such Asset Sale,
(1) to reduce, prepay, repay or purchase:
(A) other securities laws and regulations thereunder to the extent such Net Proceeds laws or regulations are from applicable in connection with the repurchase of the Notes pursuant to an Asset Sale Offer or an Advance Offer. To the extent that the provisions of Collateralany securities laws or regulations conflict with the asset sale provisions of this Indenture, Obligations the Company shall comply with Pari Passu Lien Priority the applicable securities laws and regulations and shall not be deemed to have breached its obligations under the asset sale provisions of this Indenture by virtue of such compliance.
(including the Senior Credit Facilities or any Refinancing Indebtedness in respect thereof but other than Indebtedness owed h) The provisions of this Indenture relating to the Company or any Restricted Subsidiary), and, in the case of revolving obligations, Company’s obligation to correspondingly reduce commitments with respect thereto, provided that, make an offer to the extent either Issuer or any Restricted Subsidiary will so repay any such Indebtedness (other than the Notes), the Issuers shall reduce Obligations under repurchase the Notes on as a pro rata basis by, at their option, (i) redeeming Notes as provided under Section 3.07 hereof (ii) purchasing Notes through open-market purchases or (iii) by making an offer (in accordance with the procedures set forth herein for result of an Asset Sale Offer) to all Holders to purchase their Notes may be waived or modified at a purchase price equal to 100.0% any time with the written consent of the principal amount thereof, plus the amount Holders of accrued but unpaid interest, if any, on the a majority in aggregate principal amount of the Notes to be repurchased to the date of repurchase;
(B) to the extent such Net Proceeds resulted from an then outstanding. An Asset Sale not consisting of Collateral, Obligations in respect of other Secured Indebtedness (which Offer or Advance Offer may include be made at the Notes), and, in the case of revolving commitments, to correspondingly reduce commitments same time as consents are solicited with respect thereto;
(C) Obligations in respect to an amendment, supplement or waiver of this Indenture, the Notes and/or the Subsidiary Guarantees so long as the tender of the Notes or any other Indebtedness (other than Subordinated Indebtedness) by a Holder is not conditioned upon the delivery of the Company or any Restricted Subsidiary, other than Indebtedness owed to the Company or any Restricted Subsidiary (and, in the case of revolving commitments, to correspondingly reduce commitments with respect thereto), provided that, to the extent either Issuer or any Restricted Subsidiary will so repay any consents by such Indebtedness (other than the Notes), the Issuers will reduce Obligations under the Notes on a pro rata basis by, at their option, (i) redeeming Notes as provided under Section 3.07 hereof or (ii) by making an offer (in accordance with the procedures set forth herein for an Asset Sale Offer) to all Holders to purchase their Notes at a purchase price equal to 100.0% of the principal amount thereof, plus the amount of accrued but unpaid interest, if any, on the principal amount of the Notes to be repurchased to the date of repurchase; or |US-DOCS\143900591.2||
(D) Obligations in respect of Indebtedness of a Non-Guarantor Subsidiary, other than Indebtedness owed to the Company or another Restricted Subsidiary; provided, in the case of clauses (A) or (C) above, (i) if an offer to purchase any Indebtedness of the Company or any Restricted Subsidiary is made, such amount will be deemed repaid to the extent of the amount of such offer, whether or not accepted by the holders of such Indebtedness, and no Net Proceeds in the amount of such offer will be deemed to exist following such offer, and (ii) if the holder of any Indebtedness of a Restricted Subsidiary of the Company declines the repayment of such Indebtedness owed to it from such Net Proceeds such amount will be deemed repaid to the extent of the declined Net Proceeds, or
(2) 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 that results in the Company or any Restricted Subsidiary, as the case may be, owning an amount of the Capital Stock of such business such that such business constitutes a Restricted Subsidiary or increases the Company’s direct or indirect percentage ownership of the Capital Stock of a Restricted Subsidiary;Holder.
Appears in 1 contract
Asset Sales. (a) From and after the Completion Date, the The Company shall not consummatenot, and shall not permit any of its Restricted Subsidiaries to consummateto, consummate an Asset SaleSale of any Collateral unless:
(1) The Company (or the Restricted Subsidiary, as the case may be) receives consideration at the time of the Asset Sale at least equal to the Fair Market Value of the Collateral sold or otherwise disposed of;
(2) the Fair Market Value is set forth in an Officers’ Certificate delivered to the Trustee;
(3) at least 75% of the consideration received in the Asset Sale of the Collateral by the Company or such Restricted Subsidiary is in the form of cash, Cash Equivalents, common stock, notes receivable or Permitted Assets constituting Collateral or a combination thereof. For purposes of this provision, each of the following 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, liabilities that are by their terms subordinated to the Notes or any Note Guarantee and liabilities to the extent owed to the Company or any Restricted Subsidiary of the Company) that are assumed by the transferee of any such assets pursuant to a written 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 converted by the Company or such Restricted Subsidiary into cash, to the extent of the cash received in that conversion; and
(4) the consideration received from such Asset Sale is concurrently added to the collateral securing the Notes by (I), in the case of assets that are not classified as current assets under GAAP and that are used or useful in a Permitted Business (“Permitted Assets”), the Company or the applicable subsidiary duly executing and delivering to the Collateral Trustee security agreements, pledge agreements, mortgages, deeds of trust or other agreements, as well as taking whatever action (including filing of Uniform Commercial Code financing statements, recording of mortgages, the giving of notices and the endorsement of notices on title documents, in each case as are necessary to vest in the Collateral Trustee valid and subsisting liens on the assets constituting such consideration and securing the payment of all obligations of the Company and the Guarantors under the Security Documents and (II), in the case of cash proceeds, promptly depositing such cash proceeds into a Cash Collateral Account. Within 365 days after the receipt of any Net Proceeds from an Asset Sale of Collateral, the Company or the applicable Restricted Subsidiary may apply those Net Proceeds to make a capital expenditure on Permitted Assets constituting Collateral; provided that, a binding commitment shall be treated as a permitted application of the Net Proceeds from the date of such commitment so long as such commitment requires that such Net Proceeds will be applied to satisfy such commitment within 180 days of such commitment and such commitment is not terminated or abandoned. Pending the final application of any Net Proceeds, the Company may temporarily 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 preceding paragraph will constitute “Collateral Excess Proceeds.” When the aggregate amount of Collateral Excess Proceeds exceeds $25.0 million, within 20 days thereof, or at the Company’s option, earlier, the Company shall make an Asset Sale Offer to all Holders of Notes in an amount equal to the Fair Market Value of the Collateral Excess Proceeds. The offer price in any Asset Sale Offer shall be equal to 100% of principal amount plus accrued and unpaid interest to the date of purchase (subject to the rights of Holders of record on the relevant record date to receive interest payable on the relevant interest payment date), and will be payable in cash. If any Collateral Excess Proceeds remain after consummation of an Asset Sale Offer, the Company may use those Collateral 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 equal to the Fair Market Value of the Collateral Excess Proceeds, the Trustee will select the Notes to be purchased on a pro rata basis. Upon completion of each Asset Sale Offer, the amount of Collateral Excess Proceeds will be reset at zero.
(b) The Company shall not, and shall not permit any of its Restricted Subsidiaries to, consummate an Asset Sale (other than an Asset Sale of Collateral) unless:
(1) the Company (or such 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 (as determined in good faith by the Company at the time of contractually agreeing to such Asset Sale) Fair Market Value of the assets or Equity Interests issued or sold or otherwise disposed of; and
(2) except in the case of a Permitted Asset Swap, if the property or assets sold or otherwise disposed of have a fair market value in excess of the greater of $375.0 million and 50.0% of LTM EBITDA for the most recently ended Test Period at the time of such disposition, at least 75.075% of the consideration therefor received in the Asset Sale by the Company or such Restricted Subsidiary, as the case may be, Subsidiary is in the form of cash or Cash Equivalents; provided that , common stock or notes receivable. For purposes of this Section 4.10(b)(2) (and not for purposes of determining the amount of:
(A) any liabilitiesNet Proceeds received from the Asset Sale), contingent or otherwise, each of the Company or such Restricted Subsidiary, other than liabilities that are by their terms subordinated to the Notes or that are owed to the Company or a Restricted Subsidiary that (x) are assumed by the transferee of any such assets (or a third party in connection with such transfer) or (y) are otherwise cancelled or terminated in connection with the transaction with such transferee (other than intercompany debt owed to the Company or its Restricted Subsidiaries) and, in each case, for which the Company and all of its Restricted Subsidiaries have been validly released,
(B) any securities, notes or other obligations or assets received by the Company or such Restricted Subsidiary from such transferee that are converted by the Company or such Restricted Subsidiary into cash or Cash Equivalents (to the extent of the cash or Cash Equivalents received) within 180 days following the closing of such Asset Sale;
(C) Indebtedness of any Restricted Subsidiary that ceases to be a Restricted Subsidiary as a result of such Asset Sale (other than intercompany debt owed to the Company or any Restricted Subsidiary), to the extent that the Company and each other Restricted Subsidiary are released from any guarantee of payment of the principal amount of such Indebtedness in connection with such Asset Sale in accordance with the terms of this Indenture;
(D) consideration consisting of Indebtedness of the Issuers or a Guarantor (other than intercompany debt owed to the Company or any Restricted Subsidiary and other than Subordinated Indebtedness) received after the Issue Date from Persons who are not the Company, Holdings or any Restricted Subsidiary;
(E) any Designated Non-cash Consideration received by the Company or such Restricted Subsidiary in such Asset Sale having an aggregate fair market value, as determined by the Company, taken together with all other Designated Non-cash Consideration received pursuant to this clause (E) that is at that time outstanding, not to exceed the greater of $225.0 million and 30.0% of LTM EBITDA for the most recently ended Test Period at the time of the receipt of |US-DOCS\143900591.2|| such Designated Non-cash Consideration (with the fair market value of each such item of Designated Non-cash Consideration being measured pursuant to this clause (E) at the Company’s option, either at the time of contractually agreeing to such Asset Sale or at the time received and, in either case, without giving effect to subsequent changes in value); and
(F) any Investment, Capital Stock, assets, property or capital or other expenditure of the kind referred to in clauses (2) or (3) of Section 4.10(b) hereof shall be deemed to be Cash Equivalents for purposes of this provision and for no other purpose.
(b) Within 540 days after the receipt of any Net Proceeds of any Asset Sale (the “Proceeds Application Period”), the Company or such Restricted Subsidiary, at their option, may apply an amount equal to the Net Proceeds from such Asset Sale,
(1) to reduce, prepay, repay or purchasecash:
(A) to the extent such Net Proceeds are from an Asset Sale of Collateral, Obligations with Pari Passu Lien Priority (including the Senior Credit Facilities or any Refinancing Indebtedness in respect thereof but other than Indebtedness owed to the Company or any Restricted Subsidiary), and, in the case of revolving obligations, to correspondingly reduce commitments with respect thereto, provided that, to the extent either Issuer or any Restricted Subsidiary will so repay any such Indebtedness (other than the Notes), the Issuers shall reduce Obligations under the Notes on a pro rata basis by, at their option, (i) redeeming Notes as provided under Section 3.07 hereof (ii) purchasing Notes through open-market purchases or (iii) by making an offer (in accordance with the procedures set forth herein for an Asset Sale Offer) to all Holders to purchase their Notes at a purchase price equal to 100.0% of the principal amount thereof, plus the amount of accrued but unpaid interest, if any, on the principal amount of the Notes to be repurchased to the date of repurchase;
(B) to the extent such Net Proceeds resulted from an Asset Sale not consisting of Collateral, Obligations in respect of other Secured Indebtedness (which may include the Notes), and, in the case of revolving commitments, to correspondingly reduce commitments with respect thereto;
(C) Obligations in respect of the Notes or any other Indebtedness (other than Subordinated Indebtedness) of the Company or any Restricted Subsidiary, other than Indebtedness owed to the Company or any Restricted Subsidiary (and, in the case of revolving commitments, to correspondingly reduce commitments with respect thereto), provided that, to the extent either Issuer or any Restricted Subsidiary will so repay any such Indebtedness (other than the Notes), the Issuers will reduce Obligations under the Notes on a pro rata basis by, at their option, (i) redeeming Notes as provided under Section 3.07 hereof or (ii) by making an offer (in accordance with the procedures set forth herein for an Asset Sale Offer) to all Holders to purchase their Notes at a purchase price equal to 100.0% of the principal amount thereof, plus the amount of accrued but unpaid interest, if any, on the principal amount of the Notes to be repurchased to the date of repurchase; or |US-DOCS\143900591.2||
(D) Obligations in respect of Indebtedness of a Non-Guarantor Subsidiary, other than Indebtedness owed to the Company or another Restricted Subsidiary; provided, in the case of clauses (A) or (C) above, (i) if an offer to purchase any Indebtedness of the Company or any Restricted Subsidiary is made, such amount will be deemed repaid to the extent of the amount of such offer, whether or not accepted by the holders of such Indebtedness, and no Net Proceeds in the amount of such offer will be deemed to exist following such offer, and (ii) if the holder of any Indebtedness of a Restricted Subsidiary of the Company declines the repayment of such Indebtedness owed to it from such Net Proceeds such amount will be deemed repaid to the extent of the declined Net Proceeds, or
(2) 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 that results in the Company or any Restricted Subsidiary, as the case may be, owning an amount of the Capital Stock of such business such that such business constitutes a Restricted Subsidiary or increases the Company’s direct or indirect percentage ownership of the Capital Stock of a Restricted Subsidiary;
Appears in 1 contract
Sources: Indenture (Titan International Inc)
Asset Sales. (a) From and after the Completion Date, the The Company shall not consummatenot, and shall not permit any of its Restricted Subsidiaries to to, consummate, directly or indirectly, an Asset Sale, Sale unless:
(1) the Company or such Restricted Subsidiary, as the case may be, receives consideration at the time of such Asset Sale at least equal to the fair market value Fair Market Value (as determined in good faith by the Company at the time of contractually agreeing to such Asset Sale) of the assets sold or otherwise disposed of; and
(2) except in the case of a Permitted Asset Swap, if the property or assets sold or otherwise disposed of have a fair market value in excess of the greater of $375.0 million and 50.0% of LTM EBITDA for the most recently ended Test Period at the time of such disposition, at least 75.075% of the consideration therefor from such Asset Sale received by the Company or such Restricted Subsidiary, as the case may be, is in the form of cash or Cash Equivalents; provided that the amount of:.
(Ab) Within 365 days after the Company’s or any liabilitiesof its Restricted Subsidiaries’ receipt of any Net Proceeds of any Asset Sale (the “Asset Sale Proceeds Application Period”), contingent or otherwise, of the Company or such Restricted Subsidiary, at its option, may apply an amount equal to the Net Proceeds (“Applicable Proceeds”) from such Asset Sale,
(1) to the extent such Net Proceeds are from an Asset Sale of Collateral, to repay either (i) the First Lien Obligations, (ii) Obligations under the Notes or (iii) Second Lien Obligations (other than the Notes), and in the case of revolving obligations, to correspondingly reduce commitments with respect thereto; provided that if the Company or any of its Restricted Subsidiaries shall so repay any Second Lien Obligations other than the Notes, the Company will either reduce Obligations under the Notes on a pro rata basis by, at its option, (A) redeeming the Notes as described under Section 3.07 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 for an Asset Sale Offer) to all Holders to purchase their Notes on a ratable basis with such other Second Lien Obligations 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 repurchased;
(2) if the assets that are the subject of such Asset Sale do not constitute Collateral, to repay either (i) the First Lien Obligations, (ii) Obligations under the Notes or (iii) Obligations under any other Senior Indebtedness, and in the case of revolving obligations, to correspondingly reduce commitments with respect thereto; provided that if the Company or any of its Restricted Subsidiaries shall so repay any Senior Indebtedness other than the Notes, the Company will either reduce Obligations under the Notes on a pro rata basis by, at its option, (A) redeeming Notes as described under Section 3.07 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 for an Asset Sale Offer) to all Holders to purchase their Notes on a ratable basis with such other Senior 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 repurchased;
(3) if the Net Proceeds are received by a Restricted Subsidiary that is not a Guarantor, to permanently reduce Indebtedness of a Restricted Subsidiary that is not a Guarantor, other than Indebtedness owed to the Company or another Restricted Subsidiary;
(4) 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 Company or a Restricted Subsidiary, as the case may be, owning an amount of the Capital Stock of such business such that it constitutes or continues to constitute a Restricted Subsidiary, (b) capital expenditures or (c) acquisitions of other property or assets (other than Capital Stock), in the case of each of clauses (a), (b) and (c), either (x) that are used or useful in a Similar Business or (y) that replace the businesses, properties and/or assets that are the subject of such Asset Sale;
(5) to make an Investment in Additional Assets; or
(6) any combination of the foregoing; provided that, in the case of clause (4) or (5) above, a binding commitment to consummate any such investment described in such clauses shall be treated as a permitted application of the Net Proceeds 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 such Net Proceeds shall constitute Excess Proceeds to the extent the Asset Sale Proceeds Application Period has expired; provided that, in the case of clauses (4) or (5), above, to the extent the Asset Sale consisted of the sale of Collateral, any new assets replacing the businesses, properties and/or assets that are the subject of such Asset Sale shall constitute Collateral.
(c) [Reserved].
(d) Pending the final application of any such amount of Applicable Proceeds, the Company or any of its Restricted Subsidiaries may temporarily reduce Indebtedness under a revolving credit facility, if any, or otherwise invest or utilize such Applicable Proceeds in any manner not prohibited by this Indenture. Any Applicable Proceeds that are not applied or invested as provided under Section 4.10(b) will constitute “Excess Proceeds”; provided that any amount of proceeds offered to holders in accordance with clause (1) or (2) of Section 4.10(b) at a price at or above par or pursuant to an Asset Sale Offer (as defined below) made at any time after the Asset Sale shall be deemed to have been applied as required and shall not be deemed to be Excess Proceeds without regard to the extent to which such offer is accepted by the holders.
(e) When the aggregate amount of Excess Proceeds exceeds $25.0 million (the “Excess Proceeds Offer Amount”), the Company shall make an offer to all Holders and, if required or permitted by the terms of other Second Lien Obligations (in the case of an Asset Sale of Collateral) or other Senior Indebtedness (in the case of an Asset Sale of assets that do not constitute Collateral), to the holders of such other Second Lien Obligations or Senior Indebtedness, as applicable (an “Asset Sale Offer”), to purchase the maximum aggregate principal amount of the Notes and such other Second Lien Obligations or Senior Indebtedness (solely with respect to such other Second Lien Obligations or Senior Indebtedness, the accreted value thereof, if not inconsistent with the definitive documents governing such Obligations or Indebtedness), with respect to the Notes only, that is equal to $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, with respect to the Notes only, in cash in an amount equal to 100% of the principal amount thereof, plus accrued and unpaid interest thereon, if any, to, but excluding, the date fixed for the closing of such offer, in accordance with the procedures set forth in this Indenture and, if applicable, the other documents governing the other Second Lien Obligations or Senior Indebtedness, as the case may be. The Company will commence an Asset Sale Offer with respect to Excess Proceeds within 20 Business Days after the date that Excess Proceeds exceed the Excess Proceeds Offer Amount by transmitting electronically or by mailing the notice required pursuant to the terms of this Indenture, with a copy to the Trustee. The Company may satisfy the foregoing obligations with respect to any Net Proceeds from an Asset Sale by making an Asset Sale Offer with respect to any Net Proceeds (the “Advance Portion”) prior to the expiration of the Asset Sale Proceeds Application Period with respect to all or a part of the available Net Proceeds in advance of being required to do so by this Indenture (the “Advance Offer”).
(f) To the extent that the aggregate principal amount (or accreted value, as applicable) of Notes and such other Second Lien Obligations or Senior Indebtedness, as applicable, tendered pursuant to an Asset Sale Offer is less than the Excess Proceeds (or, in the case of an Advance Offer, the Advance Portion), the Company may use any remaining Excess Proceeds (such amount, “Retained Declined Proceeds”) (or, in the case of an Advance Offer, the Advance Portion) in any manner not prohibited by this Indenture. If the aggregate principal amount (or accreted value, as applicable) of Notes or the other Second Lien Obligations or Senior Indebtedness, as applicable, surrendered in an Asset Sale Offer exceeds the amount of Excess Proceeds (or, in the case of an Advance Offer, the Advance Portion), the Trustee shall select the Notes and such other Second Lien Obligations or Senior Indebtedness to be purchased or repaid on a pro rata basis based on the accreted value or principal amount of the Notes or such other Second Lien Obligations or Senior Indebtedness, as applicable, tendered; provided that no Notes of $2,000 or less shall be repurchased in part. Upon completion of any such Asset Sale Offer, the amount of Excess Proceeds shall be reset at zero, and in the case of an Advance Offer, the amount of Net Proceeds the Company is offering to apply in such Advance Offer shall be excluded in subsequent calculations of Excess Proceeds.
(g) [Reserved].
(h) For purposes of this Section 4.10 (and no other provision), the amount of the following shall be deemed to be cash or Cash Equivalents:
(1) any liabilities (as reflected on the Company’s most recent consolidated balance sheet or in the notes thereto, or if incurred or accrued subsequent to the date of such balance sheet, such liabilities that would have been reflected on the Company’s consolidated balance sheet or in the footnotes thereto if such incurrence or accrual had taken place on or prior to the date of such balance sheet, as determined in good faith by the Company) of the Company or any of its Restricted Subsidiaries, other than liabilities that are by their terms subordinated to the Notes or Notes, that are owed to the Company or a Restricted Subsidiary that (x) are assumed by the transferee of any such assets (or a third party in connection with such transfer) or (y) are otherwise cancelled or terminated extinguished in connection with the transaction with transactions relating to such transferee (other than intercompany debt owed to the Company or its Restricted SubsidiariesAsset Sale) and, in each case, and for which the Company and all of its Restricted Subsidiaries have been validly released,released by all applicable creditors in writing;
(B2) any securities, notes or other obligations or assets received by the Company or such Restricted Subsidiary from such transferee that are converted by the Company or such Restricted Subsidiary into cash or Cash Equivalents (to the extent of the cash or Cash Equivalents received) within 180 days following the closing of such Asset Sale;; and
(C) Indebtedness of any Restricted Subsidiary that ceases to be a Restricted Subsidiary as a result of such Asset Sale (other than intercompany debt owed to the Company or any Restricted Subsidiary), to the extent that the Company and each other Restricted Subsidiary are released from any guarantee of payment of the principal amount of such Indebtedness in connection with such Asset Sale in accordance with the terms of this Indenture;
(D) consideration consisting of Indebtedness of the Issuers or a Guarantor (other than intercompany debt owed to the Company or any Restricted Subsidiary and other than Subordinated Indebtedness) received after the Issue Date from Persons who are not the Company, Holdings or any Restricted Subsidiary;
(E3) any Designated Non-cash Consideration received by the Company or such Restricted Subsidiary in such Asset Sale having an aggregate fair market value, as determined by the CompanyFair Market Value, taken together with all other Designated Non-cash Consideration received pursuant to this clause (E3) that is at that time outstanding, not to exceed the greater of (x) $225.0 25.0 million and 30.0(y) 3.5% of LTM EBITDA for the most recently ended Test Period Consolidated Total Assets at the time of the receipt of |US-DOCS\143900591.2|| such Designated Non-cash Consideration (Consideration, with the fair market value Fair Market Value of each such item of Designated Non-cash Consideration being measured pursuant to this clause (E) at the Company’s option, either at the time of contractually agreeing to such Asset Sale or at the time received and, in either case, and without giving effect to subsequent changes in value); and
(F) any Investment, Capital Stock, assets, property or capital or other expenditure of the kind referred to in clauses (2) or (3) of Section 4.10(b) hereof shall be deemed to be Cash Equivalents for purposes of this provision and for no other purpose.
(i) The notice, if sent in a manner herein provided, shall be conclusively presumed to have been given, whether or not the Holder receives such notice. If (a) the notice is sent in a manner herein provided and (b) Within 540 days after the receipt of any Net Proceeds of any Asset Sale (the “Proceeds Application Period”)Holder fails to receive such notice or a Holder receives such notice but it is defective, the Company such Holder’s failure to receive such notice or such Restricted Subsidiary, at their option, may apply an amount equal defect shall not affect the validity of the proceedings for the purchase of the Notes as to all other Holders that properly received such notice without defect. The Company shall comply with the Net Proceeds from such Asset Sale,
(1) to reduce, prepay, repay or purchase:
(A) requirements of Rule 14e-1 under the Exchange Act and any other securities laws and regulations thereunder to the extent such Net Proceeds laws or regulations are from an Asset Sale applicable in connection with the repurchase of Collateral, Obligations with Pari Passu Lien Priority (including the Senior Credit Facilities or any Refinancing Indebtedness in respect thereof but other than Indebtedness owed to the Company or any Restricted Subsidiary), and, in the case of revolving obligations, to correspondingly reduce commitments with respect thereto, provided that, to the extent either Issuer or any Restricted Subsidiary will so repay any such Indebtedness (other than the Notes), the Issuers shall reduce Obligations under the Notes on a pro rata basis by, at their option, (i) redeeming Notes as provided under Section 3.07 hereof (ii) purchasing Notes through open-market purchases or (iii) by making an offer (in accordance with the procedures set forth herein for pursuant to an Asset Sale Offer) to all Holders to purchase their Notes at a purchase price equal to 100.0% of the principal amount thereof, plus the amount of accrued but unpaid interest, if any, on the principal amount of the Notes to be repurchased to the date of repurchase;
(B) to . To the extent such Net Proceeds resulted from an Asset Sale not consisting that the provisions of Collateralany securities laws or regulations conflict with the provisions of this Indenture, Obligations in respect of other Secured Indebtedness (which may include the Notes), and, in the case of revolving commitments, to correspondingly reduce commitments with respect thereto;
(C) Obligations in respect of the Notes or any other Indebtedness (other than Subordinated Indebtedness) of the Company or any Restricted Subsidiary, other than Indebtedness owed to the Company or any Restricted Subsidiary (and, in the case of revolving commitments, to correspondingly reduce commitments with respect thereto), provided that, to the extent either Issuer or any Restricted Subsidiary will so repay any such Indebtedness (other than the Notes), the Issuers will reduce Obligations under the Notes on a pro rata basis by, at their option, (i) redeeming Notes as provided under Section 3.07 hereof or (ii) by making an offer (in accordance shall comply with the procedures set forth herein for an Asset Sale Offer) to all Holders to purchase their Notes at a purchase price equal to 100.0% of the principal amount thereof, plus the amount of accrued but unpaid interest, if any, on the principal amount of the Notes to be repurchased to the date of repurchase; or |US-DOCS\143900591.2||
(D) Obligations in respect of Indebtedness of a Non-Guarantor Subsidiary, other than Indebtedness owed to the Company or another Restricted Subsidiary; provided, in the case of clauses (A) or (C) above, (i) if an offer to purchase any Indebtedness of the Company or any Restricted Subsidiary is made, such amount will be deemed repaid to the extent of the amount of such offer, whether or applicable securities laws and regulations and shall not accepted by the holders of such Indebtedness, and no Net Proceeds in the amount of such offer will be deemed to exist following such offer, and (ii) if the holder of any Indebtedness of a Restricted Subsidiary of the Company declines the repayment have breached its obligations described in this Indenture by virtue of such Indebtedness owed to it from such Net Proceeds such amount will be deemed repaid to the extent of the declined Net Proceeds, or
(2) 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 that results in the Company or any Restricted Subsidiary, as the case may be, owning an amount of the Capital Stock of such business such that such business constitutes a Restricted Subsidiary or increases the Company’s direct or indirect percentage ownership of the Capital Stock of a Restricted Subsidiary;compliance.
Appears in 1 contract
Asset Sales. (a) From and after the Completion Date, the The Company shall not consummatewill not, and shall will not permit any of its Restricted Subsidiaries to consummateto, consummate an Asset Sale, Sale unless:
(1i) the Company (or such 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 (as determined in good faith by the Company at the time of contractually agreeing to such Asset Sale) Fair Market Value of the assets or equity interests issued or sold or otherwise disposed of; of; and
(2ii) except in the case of a Permitted Asset Swap, if the property or assets sold or otherwise disposed of have a fair market value in excess of the greater of $375.0 million and 50.0% of LTM EBITDA for the most recently ended Test Period at the time of such disposition, at least 75.075% of the consideration therefor received in the Asset Sale by the Company or such its Restricted Subsidiary, as the case may be, Subsidiaries is in the form of cash or Cash Equivalents; provided that the amount of:.
(Ab) Within 90 days after the Company’s or any liabilities, contingent or otherwise, Restricted Subsidiary of the Company or such Restricted Subsidiary, other than liabilities that are by their terms subordinated to the Notes or that are owed to the Company or a Restricted Subsidiary that Company’s receipt of (x) are assumed by the transferee Net Proceeds of any such assets (or a third party in connection with such transfer) Asset Sale or (y) are otherwise cancelled aggregate cash proceeds in respect of any Co-Promotion Arrangement or terminated in connection with the transaction with such transferee (other than intercompany debt owed Intellectual Property License to the Company or its Restricted Subsidiaries) andextent such proceeds constitute fixed cash payments, in each case, for which the Company and all of its Restricted Subsidiaries have been validly released,
(B) any securities, notes or other obligations or assets received by the Company or such Restricted Subsidiary from such transferee that are converted by of the Company or such Restricted Subsidiary into cash or Cash Equivalents (to the extent of the cash or Cash Equivalents received) within 180 days following the closing of such Asset Sale;
(C) Indebtedness of any Restricted Subsidiary that ceases to be a Restricted Subsidiary as a result of such Asset Sale (other than intercompany debt owed to the Company or any Restricted Subsidiary), to the extent that the Company and each other Restricted Subsidiary are released from any guarantee of payment of the principal amount of such Indebtedness in connection with such Asset Sale in accordance with the terms of this Indenture;
(D) consideration consisting of Indebtedness of the Issuers or a Guarantor (other than intercompany debt owed to the Company or any Restricted Subsidiary and other than Subordinated Indebtedness) received after the Issue Date from Persons who are not the Company, Holdings or any Restricted Subsidiary;
(E) any Designated Non-cash Consideration received by the Company or such Restricted Subsidiary in such Asset Sale having an aggregate fair market value, as determined by the Company, taken together with all other Designated Non-cash Consideration received pursuant to this clause (E) that is at that time outstanding, not to exceed the greater of $225.0 million and 30.0% of LTM EBITDA for the most recently ended Test Period at the time of the receipt of |US-DOCS\143900591.2|| such Designated Non-cash Consideration (with the fair market value of each such item of Designated Non-cash Consideration being measured pursuant to this clause (E) at the Company’s option, either at the time of contractually agreeing to such Asset Sale or at the time received and, in either case, without giving effect to subsequent changes in value); and
(F) any Investment, Capital Stock, assets, property or capital or other expenditure of the kind referred to in clauses (2) or (3) of Section 4.10(b) hereof shall be deemed to be Cash Equivalents for purposes of this provision and for no other purpose.
(b) Within 540 days after the receipt of any Net Proceeds of any Asset Sale (the “Proceeds Application Period”), the Company or such Restricted Subsidiary, at their option, may apply an amount equal to the Net Proceeds from such Asset Sale,
(1) to reduceSale or such aggregate cash proceeds, prepay, repay or purchaseas follows:
(i) (A) if the Asset Sale is an Intellectual Property Sale, or (B) with respect to aggregate cash proceeds received in respect of any Co-Promotion Arrangement or Intellectual Property License, the extent such percentage of the Net Proceeds are from an or aggregate cash proceeds set forth in the “Note Repurchase” column set forth in the table below (the “Specified Proceeds”) shall be applied to make a Specified Proceeds Offer (as defined in Section 4.14(c) below) to repurchase Notes in accordance with Section 4.14(c); and
(ii) (A) if the Asset Sale of Collateralis not an Intellectual Property Sale, Obligations Co-Promotion Arrangement or Intellectual Property License, or (B) with Pari Passu Lien Priority (including the Senior Credit Facilities or any Refinancing Indebtedness respect to aggregate cash proceeds received in respect thereof but other than Indebtedness owed to of any Co-Promotion Arrangement or Intellectual Property License, the Company percentage of the Net Proceeds or any Restricted Subsidiary), and, aggregate cash proceeds set forth in the case of revolving obligations, “Company Retention” column in the table below which are not used to correspondingly reduce commitments with respect thereto, provided that, make a Specified Proceeds Offer to the extent either Issuer or any Restricted Subsidiary will so repay any such Indebtedness (other than the Notes), the Issuers shall reduce Obligations under the repurchase Notes on a pro rata basis by, at their option, pursuant to clause (i) redeeming Notes as provided under Section 3.07 hereof (ii) purchasing Notes through open-market purchases above shall be applied to research and development or (iii) by making an offer (clinical development efforts in accordance connection with the procedures set forth herein for an Asset Sale Offer) to all Holders to purchase their Notes at a purchase price equal to 100.0% of the principal amount thereof, plus the amount of accrued but unpaid interest, if any, on the principal amount of the Notes to Products or other potential product candidates that may be repurchased to the date of repurchase;
(B) to the extent such Net Proceeds resulted from an Asset Sale not consisting of Collateral, Obligations in respect of other Secured Indebtedness (which may include the Notes), and, in the case of revolving commitments, to correspondingly reduce commitments with respect thereto;
(C) Obligations in respect of the Notes or any other Indebtedness (other than Subordinated Indebtedness) of the Company or any Restricted Subsidiary, other than Indebtedness owed to the Company or any Restricted Subsidiary (and, in the case of revolving commitments, to correspondingly reduce commitments with respect thereto), provided that, to the extent either Issuer or any Restricted Subsidiary will so repay any such Indebtedness (other than the Notes), the Issuers will reduce Obligations under the Notes on a pro rata basis by, at their option, (i) redeeming Notes as provided under Section 3.07 hereof or (ii) by making an offer (in accordance with the procedures set forth herein for an Asset Sale Offer) to all Holders to purchase their Notes at a purchase price equal to 100.0% of the principal amount thereof, plus the amount of accrued but unpaid interest, if any, on the principal amount of the Notes to be repurchased to the date of repurchase; or |US-DOCS\143900591.2||
(D) Obligations in respect of Indebtedness of a Non-Guarantor Subsidiary, other than Indebtedness owed to the Company or another Restricted Subsidiary; provided, in the case of clauses (A) or (C) above, (i) if an offer to purchase any Indebtedness of the Company or any Restricted Subsidiary is made, such amount will be deemed repaid to the extent of the amount of such offer, whether or not accepted introduced by the holders of such IndebtednessCompany, and no Net Proceeds in the amount of such offer will be deemed to exist following such offer, and (ii) if the holder of any Indebtedness of a Restricted Subsidiary of the Company declines the repayment of such Indebtedness owed to it from such Net Proceeds such amount will be deemed repaid to the extent of the declined Net Proceeds, or
(2) or to make an Investment in (A) any one or more businesses, businesses (provided that if such Investment in any business is in the form of the acquisition of Capital Stock that of a Person, such acquisition results in such Person becoming a Restricted Subsidiary of the Company or, if such Person is a Restricted Subsidiary of the Company, in an increase in the percentage ownership of such Person by the Company or any Restricted Subsidiary, as the case may be, owning an amount Subsidiary of the Capital Stock Company), noncurrent assets, or non-current property or capital expenditures, in each case (1) used or useful in a Permitted Business or (2) that replace the properties and assets that are the subject of such business Asset Sale; provided that any such that Investment, assets, property or capital expenditures shall be pledged as Collateral (including any assets held by a Person acquired using Net Proceeds). Pending the application of any Net Proceeds under this Section 4.14, such business constitutes a Restricted Subsidiary or increases Net Proceeds shall be held by the Collateral Agent as Collateral. (c) (i) Within 90 days after the Company’s direct or indirect percentage ownership any Restricted Subsidiary of the Capital Stock Company’s receipt of Specified Proceeds described under Section 4.14(b)(i), the Company will make an offer (a Restricted Subsidiary;“Specified Proceeds Offer”) to all Holders of Notes to purchase the maximum principal amount of Notes that may be purchased out of the Specified Proceeds, at an offer price (the “Specified Proceeds Offer Purchase Price”) in cash in an amount equal to 100% of the principal amount thereof, plus accrued and unpaid interest, if any, to (but not including) the date fixed for the purchase (the “Specified Proceeds Offer Purchase Date”), in accordance with the procedures set forth in this Indenture unless the Specified Proceeds Offer Purchase Date falls after a Regular Record Date but on or prior to the Interest Payment Date to which such Regular Record Date relates, in which case the Company shall instead pay, on or before such Interest Payment Date, the full amount of accrued and unpaid interest to Holders of record as of such Regular Record Date, and the Specified Proceeds Offer Purchase Price shall be equal to 100% of the principal amount of Notes to be repurchased pursuant to this Section 4.14(c). A Specified Proceeds Offer shall remain open for a period of at least 20 Business Days or such longer period as may be required by law.
Appears in 1 contract
Asset Sales. (a) From and after the Completion Date, the The Company shall not consummatenot, and shall not permit any of its Restricted Subsidiaries to, cause, make or suffer to consummate, an exist any Asset Sale, Disposition unless:
(1) the Company or such Restricted Subsidiary, as the case may be, receives consideration at the time of such Asset Sale at least equal to the fair market value Fair Market Value (such Fair Market Value to be determined as determined in good faith by of the Company at date of entering into a contractual agreement for such Asset Disposition) of the time of contractually agreeing shares and assets subject to such Asset Sale) of the assets sold or otherwise disposed of; andDisposition;
(2) except in the case of a Permitted Asset Swap, if the property or assets sold or otherwise disposed of have a fair market value in excess of the greater of $375.0 million and 50.0% of LTM EBITDA for the most recently ended Test Period at the time of such disposition, at least 75.075% of the consideration therefor from such Asset Disposition received by the Company or such Restricted Subsidiary, as the case may be, is in the form of cash or Cash Equivalents; provided that the amount of:and
(A3) any liabilities, contingent or otherwise, an amount equal to 100% of the Net Available Cash from such Asset Disposition is applied by the Company or such Restricted Subsidiary, as the case may be, within 365 days from the later of the date of such Asset Disposition or the receipt of such Net Available Cash, as follows:
(a) to permanently reduce (and permanently reduce commitments with respect thereto): (x) obligations under the Senior Credit Facility or (y) Secured Indebtedness of the Company (other than any Disqualified Stock or Subordinated Obligations) or Secured Indebtedness of a Restricted Subsidiary (other than any Disqualified Stock) (in each case other than Indebtedness owed to the Company or an Affiliate of the Company);
(b) to permanently reduce obligations under other Indebtedness of the Company (other than any Disqualified Stock or Subordinated Obligations) or Indebtedness of a Restricted Subsidiary (other than any Disqualified Stock), in each case other than Indebtedness owed to the Company or an Affiliate of the Company; provided that the Company shall equally and ratably reduce Obligations under the Notes as provided under Section 3.01, 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 4.08(b) for an Asset Disposition Offer) to all Holders to purchase their Notes at 100% of the principal amount thereof, plus the amount of accrued but unpaid interest on the amount of Notes that would otherwise be prepaid; or
(c) to invest in Additional Assets; provided that pending the final application of any such Net Available Cash in accordance with clause (a), (b) or (c) of this Section 4.08(a)(3), the Company and its Restricted Subsidiaries may temporarily reduce Indebtedness (including under a revolving Senior Credit Facility) or otherwise invest such Net Available Cash in any manner not prohibited by the Indenture; provided further that in the case of clause (c), a binding commitment to invest in Additional Assets shall be treated as a permitted application of the Net Available Cash from the date of such commitment so long as the Company or such other Restricted Subsidiary enters into such commitment with the good faith expectation that such Net Available Cash will be applied to satisfy such commitment within 270 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 Available Cash is applied in connection therewith, the Company or such Restricted Subsidiary enters into another Acceptable Commitment (a “Second Commitment”) within 90 days of such cancellation or termination and with the good faith expectation that such Net Available Cash will be applied within 180 days of such Second Commitment, it being understood that if a Second Commitment is later cancelled or terminated for any reason before such Net Available Cash is applied, then such Net Available Cash shall constitute Excess Proceeds. For the purposes of clause (2) of this Section 4.08(a) and for no other purpose, the following will be deemed to be cash:
(1) 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 liabilities that are by their terms subordinated to the Notes or Notes) that are owed to the Company or a Restricted Subsidiary that (x) are assumed by the transferee of any such assets (or a third party in connection with such transfer) or (y) are otherwise cancelled or terminated in connection with the transaction with such transferee (other than intercompany debt owed to the Company or its Restricted Subsidiaries) and, in each case, for and from which the Company and all of its Restricted Subsidiaries have been validly released,released by all creditors in writing;
(B2) any securities, notes or other obligations or assets received by the Company or such any Restricted Subsidiary from such the transferee that are converted by the Company or such Restricted Subsidiary into cash or Cash Equivalents (to the extent of the cash or Cash Equivalents received) within 180 days following the closing of such Asset Sale;Disposition; and
(C) Indebtedness of any Restricted Subsidiary that ceases to be a Restricted Subsidiary as a result of such Asset Sale (other than intercompany debt owed to the Company or any Restricted Subsidiary), to the extent that the Company and each other Restricted Subsidiary are released from any guarantee of payment of the principal amount of such Indebtedness in connection with such Asset Sale in accordance with the terms of this Indenture;
(D) consideration consisting of Indebtedness of the Issuers or a Guarantor (other than intercompany debt owed to the Company or any Restricted Subsidiary and other than Subordinated Indebtedness) received after the Issue Date from Persons who are not the Company, Holdings or any Restricted Subsidiary;
(E3) any Designated Non-cash Noncash Consideration received by the Company or such any of its Restricted Subsidiary Subsidiaries in such Asset Sale Disposition having an aggregate fair market value, as determined by the CompanyFair Market Value, taken together with all other Designated Non-cash Noncash Consideration received pursuant to this clause (E3) that is at that time outstanding, not to exceed the greater of (x) $225.0 100.0 million and 30.0(y) 2.5% of LTM EBITDA for the most recently ended Test Period Total Tangible Assets at the time of the receipt of |US-DOCS\143900591.2|| such Designated Non-cash Noncash Consideration (with the fair market value Fair Market Value of each such item of Designated Non-cash Noncash Consideration being measured pursuant to this clause (E) at the Company’s option, either at the time of contractually agreeing to such Asset Sale or at the time received and, in either case, without giving effect to subsequent changes in value); and
(F) any Investment, Capital Stock, assets, property or capital or other expenditure of the kind referred to in clauses (2) or (3) of Section 4.10(b) hereof shall be deemed to be Cash Equivalents for purposes of this provision and for no other purpose.
(b) Within 540 days Any Net Available Cash from Asset Dispositions that are not applied or invested as provided in Section 4.08(a) shall be deemed to constitute “Excess Proceeds.” On the 366th day after an Asset Disposition, if the receipt aggregate amount of any Net Excess Proceeds of any Asset Sale (the “Proceeds Application Period”)exceeds $25.0 million, the Company or shall be required to make an offer (“Asset Disposition Offer”) to all Holders and, to the extent required by the terms of outstanding Pari Passu Indebtedness, to all holders of such Restricted SubsidiaryPari Passu Indebtedness, to purchase the maximum aggregate principal amount of Notes and any such Pari Passu Indebtedness that may be purchased out of the Excess Proceeds, at their option, may apply an offer price in cash in an amount equal to the Net Proceeds from such Asset Sale,
(1) to reduce, prepay, repay or purchase:
(A) to the extent such Net Proceeds are from an Asset Sale of Collateral, Obligations with Pari Passu Lien Priority (including the Senior Credit Facilities or any Refinancing Indebtedness in respect thereof but other than Indebtedness owed to the Company or any Restricted Subsidiary), and, in the case of revolving obligations, to correspondingly reduce commitments with respect thereto, provided that, to the extent either Issuer or any Restricted Subsidiary will so repay any such Indebtedness (other than the Notes), the Issuers shall reduce Obligations under the Notes on a pro rata basis by, at their option, (i) redeeming Notes as provided under Section 3.07 hereof (ii) purchasing Notes through open-market purchases or (iii) by making an offer (in accordance with the procedures set forth herein for an Asset Sale Offer) to all Holders to purchase their Notes at a purchase price equal to 100.0100% of the principal amount thereof, plus the amount of accrued but and unpaid interest, if any, on the principal amount of the Notes to be repurchased to the date of repurchase;
purchase (B) subject to the extent such Net Proceeds resulted from an Asset Sale not consisting right of Collateral, Obligations in respect Holders of other Secured Indebtedness (which may include record on a Record Date to receive interest on the Notesrelevant Interest Payment Date), and, in the case of revolving commitments, to correspondingly reduce commitments with respect thereto;
(C) Obligations in respect of the Notes or any other Indebtedness (other than Subordinated Indebtedness) of the Company or any Restricted Subsidiary, other than Indebtedness owed to the Company or any Restricted Subsidiary (and, in the case of revolving commitments, to correspondingly reduce commitments with respect thereto), provided that, to the extent either Issuer or any Restricted Subsidiary will so repay any such Indebtedness (other than the Notes), the Issuers will reduce Obligations under the Notes on a pro rata basis by, at their option, (i) redeeming Notes as provided under Section 3.07 hereof or (ii) by making an offer (in accordance with the procedures set forth herein for in the Indenture or the agreements governing the Pari Passu Indebtedness, as applicable, in each case in denominations of $2,000 and larger integral multiples of $1,000 in excess thereof. The Company shall commence an Asset Sale OfferDisposition Offer with respect to Excess Proceeds by mailing (or otherwise communicating in accordance with the procedures of DTC) the notice required pursuant to all Holders to purchase their Notes at a purchase price equal to 100.0% the terms of the Indenture, with a copy to the Trustee. To the extent that the aggregate amount of Notes and Pari Passu Indebtedness validly tendered and not properly withdrawn pursuant to an Asset Disposition Offer is less than the Excess Proceeds, the Company may use any remaining Excess Proceeds for general corporate purposes, subject to other covenants contained in the Indenture. If the aggregate principal amount thereofof Notes surrendered by Holders thereof and other Pari Passu Indebtedness surrendered by holders or lenders, plus collectively, exceeds the amount of accrued but unpaid interestExcess Proceeds, if any, the Trustee shall select the Notes and 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. Upon completion of such Asset Disposition Offer, the amount of Excess Proceeds shall be reset at zero.
(c) The Asset Disposition Offer shall remain open for a period of 20 Business Days following its commencement, except to the extent that a longer period is required by applicable law (the “Asset Disposition Offer Period”). No later than five Business Days after the termination of the Asset Disposition Offer Period (the “Asset Disposition Purchase Date”), the Company shall apply all Excess Proceeds to the purchase of the aggregate principal amount of Notes and, if applicable, Pari Passu Indebtedness (on a pro rata basis, if applicable) required to be repurchased purchased pursuant to this Section 4.08 (the “Asset Disposition Offer Amount”) or, if less than the Asset Disposition Offer Amount of Notes (and, if applicable, Pari Passu Indebtedness) has been so validly tendered, all Notes and Pari Passu Indebtedness validly tendered in response to the date of repurchase; or |US-DOCS\143900591.2||Asset Disposition Offer. Payment for any Notes so purchased shall be made in the same manner as interest payments are made.
(Dd) Obligations in respect of Indebtedness of If the Asset Disposition Purchase Date is on or after a Non-Guarantor SubsidiaryRecord Date and on or before the related Interest Payment Date, other than Indebtedness owed any accrued and unpaid interest shall be paid to the Person in whose name a Note is registered at the close of business on such Record Date.
(e) On or before the Asset Disposition Purchase Date, the Company shall, to the extent lawful, accept for payment, on a pro rata basis to the extent necessary, the Asset Disposition Offer Amount of Notes and Pari Passu Indebtedness or another Restricted Subsidiary; providedportions thereof validly tendered and not properly withdrawn pursuant to the Asset Disposition Offer, or if less than the Asset Disposition Offer Amount has been validly tendered and not properly withdrawn, all Notes and Pari Passu Indebtedness so tendered, in the case of clauses (A) or (C) aboveintegral multiples of $1,000; provided that if, (i) if an offer to purchase any Indebtedness following repurchase of a portion of a Note, the Company or any Restricted Subsidiary is made, such amount will be deemed repaid to the extent of the remaining principal amount of such offerNote outstanding immediately after such repurchase would be less than $2,000, whether or not accepted by then the holders portion of such Indebtedness, and no Net Proceeds in Note so repurchased shall be reduced so that the remaining principal amount of such offer will Note outstanding immediately after such repurchase is $2,000. The Company shall deliver, or cause to be deemed delivered, to exist following the Trustee the Notes so accepted and an Officers’ Certificate stating the aggregate principal amount of Notes or portions thereof so accepted and that such offer, and (ii) if the holder of any Indebtedness of a Restricted Subsidiary of Notes or portions thereof were accepted for payment by the Company declines in accordance with the repayment terms of such Indebtedness owed to it from such Net Proceeds such amount will be deemed repaid to the extent of the declined Net Proceeds, orthis Section 4.08.
(2f) to make an Investment in (A) any one The Company shall deliver all certificates and notes required, if any, by the agreements governing the Pari Passu Indebtedness. The Paying Agent or more businesses, provided that such Investment in any business is in the form of the acquisition of Capital Stock that results in the Company or any Restricted SubsidiaryCompany, as the case may be, owning shall promptly, but in no event, later than five Business Days after termination of the Asset Disposition Offer Period, mail or deliver to each tendering Holder or holder or lender of Pari Passu Indebtedness, as the case may be, an amount equal to the purchase price of the Capital Stock Notes or Pari Passu Indebtedness so validly tendered and not properly withdrawn by such holder or lender, as the case may be, and accepted by the Company for purchase, and the Company shall promptly issue a new Note, and the Trustee, upon delivery of such business such that such business constitutes a Restricted Subsidiary or increases an authentication order from the Company’s direct , shall authenticate and mail or indirect percentage ownership deliver (or cause to be transferred by book-entry) such new Note to such Holder (it being understood that, notwithstanding anything in this Second Supplemental Indenture to the contrary, no Opinion of Counsel or Officers’ Certificate shall be required for the Trustee to authenticate and mail or deliver such new Note) in a principal amount equal to any unpurchased portion of the Capital Stock Note surrendered; provided that each such new Note shall be in a principal amount of a Restricted Subsidiary;$2,000 or an integral multiple of $1,000 in excess thereof. In addition, the Company shall take any and all other actions required by the agreements governing the Pari Passu Indebtedness. Any Note not so accepted shall be promptly mailed or delivered by the Company to the Holder thereof. The Company shall publicly announce the results of the Asset Disposition Offer on the Asset Disposition Purchase Date.
(g) The Company shall comply, to the extent applicable, with the requirements of Rule 14e-1 under the Exchange Act and any other securities laws or regulations in connection with the repurchase of Notes pursuant to an Asset Disposition Offer. To the extent that the provisions of any securities laws or regulations conflict with provisions of this Second Supplemental Indenture, the Company shall comply with the applicable securities laws and regulations and shall not be deemed to have breached its obligations under this Second Supplemental Indenture by virtue of any conflict.
Appears in 1 contract
Sources: Second Supplemental Indenture (Covanta Holding Corp)
Asset Sales. (a) From and after the Completion Date, the The Company shall not consummatenot, and shall not permit any of its Restricted Subsidiaries Subsidiary to, cause, make or suffer to consummate, exist an Asset Sale, unless:
(1) the Company or such Restricted Subsidiary, as the case may be, receives consideration at the time of such Asset Sale at least equal to the fair market value (as determined in good faith by the Company at the time of contractually agreeing to such Asset Sale) Fair Market Value of the assets sold or otherwise disposed of; and
(2) except in the case of a Permitted Asset Swap, if the property or assets sold or otherwise disposed of have a fair market value in excess of the greater of $375.0 million and 50.0% of LTM EBITDA for the most recently ended Test Period at the time of such disposition, at least 75.075% of the consideration therefor received by the Company or such Restricted Subsidiary, as the case may be, is in the form of cash or Cash Equivalents; provided that . Within 365 days after the amount of:
Company’s or a Restricted Subsidiary’s receipt of the Net Proceeds of any Asset Sale covered by this clause (Aa) any liabilities, contingent or otherwise, of the Company or such Restricted Subsidiary, at its option, may apply the Net Proceeds from such Asset Sale:
(1) to make one or more offers to the Holders of the Notes of both series (and, at the option of the Company, the holders of other senior Indebtedness) to purchase Notes of each series (and such senior Indebtedness) pursuant to and subject to the conditions contained in this Indenture (each, an “Asset Sale Offer”); provided, however, that in connection with any prepayment, repayment or purchase of Indebtedness pursuant to this clause (1), the Company or such Restricted Subsidiary shall permanently retire such Indebtedness; provided, further, that if the Company or such Restricted Subsidiary shall so reduce any senior Indebtedness (other than the Notes), the Company shall equally and ratably reduce Indebtedness under the Notes by making an offer to all Holders of Notes of both series 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 the Notes, such offer to be conducted in accordance with the procedures set forth below for an Asset Sale Offer but without any further limitation in amount;
(2) 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 Company or 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 each of (a), (b) and (c), used or useful in a Similar Business; or
(3) to reduce Indebtedness of a Restricted Subsidiary, other than Indebtedness owed to the Company or another Restricted Subsidiary; provided that the acquisition of Indebtedness of a Restricted Subsidiary by the Company shall constitute a reduction in such Indebtedness. Any Net Proceeds that are not invested or applied as provided and within the time period set forth in the first sentence of the immediately preceding paragraph shall be deemed to constitute “Excess Proceeds.” In the case of clause (2) above, 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 635 days after receipt by the Company or any Restricted Subsidiary of the Net Proceeds of any Asset Sale and (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 be Excess Proceeds. When the aggregate amount of Excess Proceeds exceeds $25.0 million, the Company shall make an Asset Sale Offer to all Holders of the Notes of both series, and, if required by the terms of any senior Indebtedness, to the holders of such senior Indebtedness, to purchase the maximum principal amount of Notes and such other senior Indebtedness, that are $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, but not including, the date fixed for the closing of such offer, in accordance with the procedures set forth in this Indenture. The Company shall commence an Asset Sale Offer with respect to Excess Proceeds within 30 days after the date that Excess Proceeds exceed $25.0 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 Company 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 the senior Indebtedness surrendered by such holders thereof exceeds the amount of Excess Proceeds, the Notes of each series and such senior Indebtedness will be purchased on a pro rata basis based on the principal amount of the Notes of such series or such senior Indebtedness tendered. Upon completion of any such Asset Sale Offer, the amount of Excess Proceeds shall be reset at zero. After the Company or any Restricted Subsidiary has applied the Net Proceeds from any Asset Sale as provided in, and within the time periods required by, this paragraph (a), the balance of such Net Proceeds, if any, from such Asset Sale may be used by the Company or such Restricted Subsidiary for any purpose not prohibited by the terms of this Indenture.
(b) For purposes of this Section 1017, the following are deemed to be cash or Cash Equivalents:
(1) any liabilities (as shown on the Company’s, or such Restricted Subsidiary’s most recent internally available balance sheet or in the notes thereto) of the Company or any Restricted Subsidiary other than liabilities that are by their terms subordinated to the Notes or that are owed to the Company or a Restricted Subsidiary that (x) are assumed by the transferee of any such assets (or a third party in connection with such transfer) or (y) are otherwise cancelled or terminated in connection with the transaction with such transferee (other than intercompany debt owed to the Company or its Restricted Subsidiaries) and, in each case, for which the Company and all of its Restricted Subsidiaries have been validly released,Notes;
(B2) any securities, notes or other obligations or assets securities received by the Company or such Restricted Subsidiary from such transferee that are converted by the Company or such Restricted Subsidiary into cash or Cash Equivalents (to the extent of the cash or Cash Equivalents received) within 180 days following the closing of such Asset Sale;; and
(C) Indebtedness of any Restricted Subsidiary that ceases to be a Restricted Subsidiary as a result of such Asset Sale (other than intercompany debt owed to the Company or any Restricted Subsidiary), to the extent that the Company and each other Restricted Subsidiary are released from any guarantee of payment of the principal amount of such Indebtedness in connection with such Asset Sale in accordance with the terms of this Indenture;
(D) consideration consisting of Indebtedness of the Issuers or a Guarantor (other than intercompany debt owed to the Company or any Restricted Subsidiary and other than Subordinated Indebtedness) received after the Issue Date from Persons who are not the Company, Holdings or any Restricted Subsidiary;
(E3) any Designated Non-cash Consideration received by the Company or such any Restricted Subsidiary in such Asset Sale having an aggregate fair market value, as determined by the CompanyFair Market Value, taken together with all other Designated Non-cash Consideration received pursuant to this clause (E4) that is at that time outstanding, not to exceed the greater of (x) $225.0 100.0 million and 30.0(y) 3.0% of LTM EBITDA for the most recently ended Test Period Total Assets at the time of the receipt of |US-DOCS\143900591.2|| such Designated Non-cash Consideration (Consideration, with the fair market value Fair Market Value of each such item of Designated Non-cash Consideration being measured pursuant to this clause (E) at the Company’s option, either at the time of contractually agreeing to such Asset Sale or at the time received and, in either case, and without giving effect to subsequent changes in value); and
(F) any Investment, Capital Stock, assets, property or capital or other expenditure of the kind referred to in clauses (2) or (3) of Section 4.10(b) hereof shall be deemed to be Cash Equivalents for purposes of this provision and for no other purpose.
(bc) Within 540 days after The Company shall comply with the receipt requirements of Rule 14e-1 under the Exchange Act and any Net Proceeds of any Asset Sale (the “Proceeds Application Period”), the Company or such Restricted Subsidiary, at their option, may apply an amount equal to the Net Proceeds from such Asset Sale,
(1) to reduce, prepay, repay or purchase:
(A) other securities laws and regulations thereunder to the extent such Net Proceeds laws or regulations are from an Asset Sale applicable in connection with the repurchase of Collateral, Obligations with Pari Passu Lien Priority (including the Senior Credit Facilities or any Refinancing Indebtedness in respect thereof but other than Indebtedness owed to the Company or any Restricted Subsidiary), and, in the case of revolving obligations, to correspondingly reduce commitments with respect thereto, provided that, to the extent either Issuer or any Restricted Subsidiary will so repay any such Indebtedness (other than the Notes), the Issuers shall reduce Obligations under the Notes on a pro rata basis by, at their option, (i) redeeming Notes as provided under Section 3.07 hereof (ii) purchasing Notes through open-market purchases or (iii) by making an offer (in accordance with the procedures set forth herein for pursuant to an Asset Sale Offer) to all Holders to purchase their Notes at a purchase price equal to 100.0% of the principal amount thereof, plus the amount of accrued but unpaid interest, if any, on the principal amount of the Notes to be repurchased to the date of repurchase;
(B) to . To the extent such Net Proceeds resulted from an Asset Sale that the provisions of any securities laws or regulations conflict with the provisions of this Indenture, the Company shall comply with the applicable securities laws and regulations and shall not consisting of Collateral, Obligations be deemed to have breached its obligations described in respect of other Secured Indebtedness (which may include the Notes), and, in the case of revolving commitments, to correspondingly reduce commitments with respect thereto;
(C) Obligations in respect this Indenture by virtue thereof. If less than all of the Notes or any other senior Indebtedness (other than Subordinated Indebtedness) of the Company or any Restricted Subsidiary, other than Indebtedness owed to the Company or any Restricted Subsidiary (and, in the case of revolving commitments, to correspondingly reduce commitments with respect thereto), provided that, to the extent either Issuer or any Restricted Subsidiary will so repay any such Indebtedness (other than the Notes), the Issuers will reduce Obligations under the Notes on a pro rata basis by, at their option, (i) redeeming Notes as provided under Section 3.07 hereof or (ii) by making an offer (in accordance with the procedures set forth herein for an Asset Sale Offer) to all Holders to purchase their Notes at a purchase price equal to 100.0% of the principal amount thereof, plus the amount of accrued but unpaid interest, if any, on the principal amount of the Notes are to be repurchased to the date of repurchase; or |US-DOCS\143900591.2||
(D) Obligations in respect of Indebtedness of a Non-Guarantor Subsidiaryredeemed, other than Indebtedness owed to the Company or another Restricted Subsidiary; provided, in the case of clauses (A) or (C) above, (i) if an offer to purchase any Indebtedness of the Company or any Restricted Subsidiary is made, such amount will be deemed repaid to the extent of the amount of such offer, whether or not accepted by the holders of such Indebtedness, and no Net Proceeds in the amount of such offer will be deemed to exist following such offer, and (ii) if the holder of any Indebtedness of a Restricted Subsidiary of the Company declines the repayment of such Indebtedness owed to it from such Net Proceeds such amount will be deemed repaid to the extent of the declined Net Proceeds, or
(2) 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 that results in the Company or any Restricted Subsidiary, as the case may be, owning an amount of the Capital Stock of such business such that such business constitutes a Restricted Subsidiary or increases the Company’s direct or indirect percentage ownership of the Capital Stock of a Restricted Subsidiary;Section 1109 shall apply.
Appears in 1 contract
Sources: Indenture (Aircastle LTD)
Asset Sales. (a) From and after the Completion Date, the Company shall not consummateTLLP will not, and shall will not permit any of its Restricted Subsidiaries to consummateto, consummate an Asset Sale, Sale unless:
(1) TLLP (or the Company or such Restricted Subsidiary, as the case may be, ) receives consideration at the time of such Asset Sale at least equal to the fair market value Fair Market Value (as such Fair Market Value to be determined in good faith by on the Company at the time date of contractually agreeing to such Asset SaleSale and which shall give effect to the assumption by another Person of any liabilities as provided for in clause (A) of the following paragraph) of the assets or Equity Interests issued or sold or otherwise disposed of; and
(2) except in the case of a Permitted Asset Swap, if the property or assets sold or otherwise disposed of have a fair market value in excess of the greater of $375.0 million and 50.0% of LTM EBITDA for the most recently ended Test Period at the time of such disposition, at least 75.075% of the consideration therefor received in the Asset Sale by the Company TLLP or such Restricted Subsidiary, as the case may be, Subsidiary is in the form of cash or Cash Equivalents; provided that . For purposes of the amount ofpreceding clause (2) of this provision, each of the following shall be deemed to be cash:
(A) any liabilities, contingent or otherwiseas shown on TLLP’s most recent consolidated balance sheet, of the Company TLLP or such any Restricted Subsidiary, Subsidiary (other than contingent liabilities and liabilities that are by their terms subordinated to the Notes or any Note Guarantees) that are owed to the Company or a Restricted Subsidiary that (x) are assumed by the transferee of any such assets (pursuant to a customary novation agreement that releases TLLP or a third party in connection with such transfer) or (y) are otherwise cancelled or terminated in connection with the transaction with such transferee (other than intercompany debt owed to the Company or its Restricted Subsidiaries) and, in each case, for which the Company and all of its Restricted Subsidiaries have been validly released,Subsidiary from further liability;
(B) any securities, notes or other obligations or assets received by the Company TLLP or any such Restricted Subsidiary from in connection with such transferee transaction that within 90 days after the Asset Sale (subject to ordinary settlement periods) are converted by the Company TLLP or such Restricted Subsidiary into cash or Cash Equivalents (Equivalents, to the extent of the cash or Cash Equivalents received) within 180 days following the closing of such Asset Salereceived in that conversion;
(C) Indebtedness of any Restricted Subsidiary that ceases to be a Restricted Subsidiary as a result of such Asset Sale (other than intercompany debt owed to the Company stock or any Restricted Subsidiary), to the extent that the Company and each other Restricted Subsidiary are released from any guarantee of payment of the principal amount of such Indebtedness in connection with such Asset Sale in accordance with the terms of this Indenture;
(D) consideration consisting of Indebtedness of the Issuers or a Guarantor (other than intercompany debt owed to the Company or any Restricted Subsidiary and other than Subordinated Indebtedness) received after the Issue Date from Persons who are not the Company, Holdings or any Restricted Subsidiary;
(E) any Designated Non-cash Consideration received by the Company or such Restricted Subsidiary in such Asset Sale having an aggregate fair market value, as determined by the Company, taken together with all other Designated Non-cash Consideration received pursuant to this clause (E) that is at that time outstanding, not to exceed the greater of $225.0 million and 30.0% of LTM EBITDA for the most recently ended Test Period at the time of the receipt of |US-DOCS\143900591.2|| such Designated Non-cash Consideration (with the fair market value of each such item of Designated Non-cash Consideration being measured pursuant to this clause (E) at the Company’s option, either at the time of contractually agreeing to such Asset Sale or at the time received and, in either case, without giving effect to subsequent changes in value); and
(F) any Investment, Capital Stock, assets, property or capital or other expenditure assets of the kind referred to in clauses (2) or (34) of the next succeeding paragraph received by TLLP or any such Restricted Subsidiary in connection with such transaction; and
(D) accounts receivable of a business retained by TLLP or any of its Restricted Subsidiaries, as the case may be, following the sale of such business, provided such accounts receivable (x) are not past due more than 60 days and (y) do not have a payment date greater than 90 days from the date of the invoices creating such accounts receivable; provided that any Asset Sale pursuant to a condemnation, appropriation or other similar taking, including by deed in lieu of condemnation, or pursuant to the foreclosure or other enforcement of a Lien incurred not in violation of Section 4.10(b4.12 or exercise by the related lienholder of rights with respect thereto, including by deed or assignment in lieu of foreclosure, shall not be required to satisfy the conditions set forth in clauses (1) hereof shall be deemed to be Cash Equivalents for purposes and (2) of this provision and for no other purpose.
(b) paragraph. Within 540 365 days after the receipt of any Net Proceeds of from an Asset Sale, TLLP (or any Asset Sale (the “Proceeds Application Period”), the Company or such Restricted Subsidiary, at their option, ) may apply an amount equal to the such Net Proceeds from such Asset Sale,at its option to any combination of the following:
(1) to reduce, prepay, repay repay, redeem or purchase:
(A) to the extent such Net Proceeds are from an Asset Sale repurchase Senior Indebtedness of Collateral, Obligations with Pari Passu Lien Priority (including the Senior Credit Facilities or any Refinancing Indebtedness in respect thereof but other than Indebtedness owed to the Company or any TLLP and/or its Restricted Subsidiary), and, in the case of revolving obligations, to correspondingly reduce commitments with respect thereto, provided that, to the extent either Issuer or any Restricted Subsidiary will so repay any such Indebtedness (other than the Notes), the Issuers shall reduce Obligations under the Notes on a pro rata basis by, at their option, (i) redeeming Notes as provided under Section 3.07 hereof (ii) purchasing Notes through open-market purchases or (iii) by making an offer (in accordance with the procedures set forth herein for an Asset Sale Offer) to all Holders to purchase their Notes at a purchase price equal to 100.0% of the principal amount thereof, plus the amount of accrued but unpaid interest, if any, on the principal amount of the Notes to be repurchased to the date of repurchaseSubsidiaries;
(B2) to acquire a controlling interest in another business or all or substantially all of the extent such Net Proceeds resulted from an Asset Sale not consisting of Collateralassets of, Obligations in respect of other Secured Indebtedness (which may include the Notes)or any Capital Stock or operating line of, andanother business, in each case engaged in a Permitted Business, if, after giving effect to any such acquisition of Capital Stock, the case Permitted Business is or becomes a Restricted Subsidiary of revolving commitments, to correspondingly reduce commitments with respect theretoTLLP;
(C3) Obligations to make capital expenditures; or
(4) to acquire other assets that are not classified as current assets under GAAP and that are used or useful in respect of the Notes or any other Indebtedness (other than Subordinated Indebtedness) of the Company or any Restricted Subsidiary, other than Indebtedness owed to the Company or any Restricted Subsidiary (and, in the case of revolving commitments, to correspondingly reduce commitments with respect thereto), a Permitted Business; provided that, to the extent either Issuer or any Restricted Subsidiary will so repay any such Indebtedness (other than the Notes), the Issuers will reduce Obligations under the Notes on a pro rata basis by, at their option, (i) redeeming Notes as provided under Section 3.07 hereof or (ii) by making an offer (in accordance with the procedures set forth herein for an Asset Sale Offer) to all Holders to purchase their Notes at a purchase price equal to 100.0% of the principal amount thereof, plus the amount of accrued but unpaid interest, if any, on the principal amount of the Notes to be repurchased to the date of repurchase; or |US-DOCS\143900591.2||
(D) Obligations in respect of Indebtedness of a Non-Guarantor Subsidiary, other than Indebtedness owed to the Company or another Restricted Subsidiary; provided, in the case of clauses (A2), (3) or and (C4) above, (i) if an offer to purchase any Indebtedness a binding commitment shall be treated as a permitted application of the Company or any Restricted Subsidiary is made, such amount will be deemed repaid to Net Proceeds from the extent of the amount date of such offer, whether commitment so long as TLLP (or not accepted by the holders of such Indebtedness, and no Net Proceeds in the amount of such offer will be deemed to exist following such offer, and (ii) if the holder of any Indebtedness of a Restricted Subsidiary of the Company declines the repayment of such Indebtedness owed to it from such Net Proceeds such amount will be deemed repaid to the extent of the declined Net Proceeds, or
(2) 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 that results in the Company or any applicable Restricted Subsidiary, 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 (an “Acceptable Commitment”); and such Net Proceeds are actually applied in such manner within the later of 365 days from the consummation of the Asset Sale and 180 days from the date of the Acceptable Commitment, owning an and in the event any Acceptable Commitment is later cancelled or terminated for any reason before the Net Proceeds are applied in connection therewith, TLLP (or the applicable Restricted Subsidiary, as the case may be) enters into another Acceptable Commitment (a “Second Commitment”) within 180 days of such cancellation or termination and such Net Proceeds are actually applied in such manner within 180 days from the date of the Second Commitment, it being understood that if a Second Commitment is later cancelled or terminated for any reason before such Net Proceeds are applied then such Net Proceeds shall constitute Excess Proceeds. Pending the final application of any Net Proceeds, TLLP 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. 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 five days after the date on which the aggregate amount of Excess Proceeds exceeds $25.0 million (or, at the Capital Stock Issuers’ option, any earlier date), the Issuers will make 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 or redeem with the proceeds of sales of assets to purchase the maximum principal amount of Notes and such other pari passu Indebtedness that may be purchased out of the Excess Proceeds. The offer price in any Asset Sale Offer will be equal to 100% of the principal amount (or accreted value) thereof 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, TLLP or any Restricted Subsidiary 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 the representative of such business other pari passu Indebtedness will select 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. TLLP will comply with the requirements of Rule 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 each repurchase of Notes pursuant to 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, TLLP will comply with the applicable securities laws and regulations and will not be deemed to have breached its obligations under Section 3.09 hereof or this Section 4.10 by virtue of such business constitutes a Restricted Subsidiary or increases the Company’s direct or indirect percentage ownership of the Capital Stock of a Restricted Subsidiary;compliance.
Appears in 1 contract
Sources: Indenture (Tesoro Logistics Lp)
Asset Sales. (a) From and after the Completion Date, the Company The Parent shall not consummatenot, and shall not permit any of its Restricted Subsidiaries to, make any Asset Sale (except with respect to consummate, an Asset Sale, Event of Loss) unless:
(1i) the Company Parent (or such the Restricted Subsidiary, as the case may be, ) receives consideration at the time of such Asset Sale at least equal to the fair market value (as determined in good faith by the Company at the time of contractually agreeing to such Asset Sale) Fair Market Value of the assets or Equity Interests issued or sold or otherwise disposed of; and
(2ii) except in the case of a Permitted Asset Swap, if the property or assets sold or otherwise disposed of have a fair market value in excess of the greater of $375.0 million and 50.0% of LTM EBITDA for the most recently ended Test Period at the time of such disposition, at least 75.075% of the consideration therefor received by the Company Parent or such Restricted Subsidiary, as the case may be, Subsidiary is in the form of cash or Cash Equivalents; provided that the amount of:
(A1) any liabilities, contingent or otherwise, of liabilities (as shown on the Company Parent’s or such Restricted Subsidiary, ’s most recent balance sheet) of the Parent or any Restricted Subsidiary (other than contingent liabilities and liabilities that are by their terms subordinated to the Notes or any Note Guarantee) that are owed to the Company or a Restricted Subsidiary that (x) are assumed by the transferee of any such assets (pursuant to a customary novation or a third party in connection with assignment and assumption agreement releasing the Parent or such transfer) or (y) are otherwise cancelled or terminated in connection with the transaction with such transferee (other than intercompany debt owed to the Company or its Restricted Subsidiaries) Subsidiary from further liability; and, in each case, for which the Company and all of its Restricted Subsidiaries have been validly released,
(B2) any securities, notes or other obligations or assets received by the Company Parent or any such Restricted Subsidiary from such transferee that are converted by the Company Parent or such Restricted Subsidiary into cash or Cash Equivalents (to the extent of the cash or Cash Equivalents receivedreceived in that conversion) within 180 120 days following the closing consummation of such Asset Sale;
(C) Indebtedness of any Restricted Subsidiary that ceases to be a Restricted Subsidiary as a result of such Asset Sale (other than intercompany debt owed to the Company or any Restricted Subsidiary), to the extent that the Company and each other Restricted Subsidiary are released from any guarantee of payment of the principal amount of such Indebtedness in connection with such Asset Sale in accordance with the terms of this Indenture;
(D) consideration consisting of Indebtedness of the Issuers or a Guarantor (other than intercompany debt owed to the Company or any Restricted Subsidiary and other than Subordinated Indebtedness) received after the Issue Date from Persons who are not the Company, Holdings or any Restricted Subsidiary;
(E) any Designated Non-cash Consideration received by the Company or such Restricted Subsidiary in such Asset Sale having an aggregate fair market value, as determined by the Company, taken together with all other Designated Non-cash Consideration received pursuant to this clause (E) that is at that time outstanding, not to exceed the greater of $225.0 million and 30.0% of LTM EBITDA for the most recently ended Test Period at the time of the receipt of |US-DOCS\143900591.2|| such Designated Non-cash Consideration (with the fair market value of each such item of Designated Non-cash Consideration being measured pursuant to this clause (E) at the Company’s option, either at the time of contractually agreeing to such Asset Sale or at the time received and, in either case, without giving effect to subsequent changes in value); and
(F) any Investment, Capital Stock, assets, property or capital or other expenditure of the kind referred to in clauses (2) or (3) of Section 4.10(b) hereof shall will be deemed to be Cash Equivalents cash for purposes of this provision and for no other purposeSection 5.10.
(b) Within 540 360 days after the receipt of any Net Proceeds of any Asset Sale (the “Proceeds Application Period”), the Company or such Restricted Subsidiary, at their option, may apply an amount equal to the Net Proceeds from such Asset Sale,
(1) to reduce, prepay, repay or purchase:
(A) to the extent such Net Proceeds are from an Asset Sale of Collateral, Obligations with Pari Passu Lien Priority (including by the Senior Credit Facilities Parent or any Refinancing Indebtedness in respect thereof but other than Indebtedness owed to the Company or any a Restricted Subsidiary), and, in the case of revolving obligations, Parent or such Restricted Subsidiary may apply such Net Proceeds at its option:
(i) to permanently reduce Indebtedness under the Revolving Credit Agreement (and to correspondingly reduce commitments with respect thereto, provided that, to the extent either Issuer or any Restricted Subsidiary will so repay any such Indebtedness (other than the Notes), the Issuers shall reduce Obligations under the Notes on a pro rata basis by, at their option, (i) redeeming Notes as provided under Section 3.07 hereof ;
(ii) purchasing Notes through open-market purchases or (iii) by making an offer (in accordance with the procedures set forth herein for an respect to Asset Sale Offer) to all Holders to purchase their Notes at Sales of assets of a purchase price equal to 100.0% of the principal amount thereof, plus the amount of accrued but unpaid interest, if any, on the principal amount of the Notes to be repurchased to the date of repurchase;
(B) to the extent such Net Proceeds resulted from an Asset Sale Restricted Subsidiary that is not consisting of Collateral, Obligations in respect of other Secured Indebtedness (which may include the Notes), and, in the case of revolving commitmentsa Guarantor, to correspondingly permanently reduce commitments with respect thereto;
(C) Obligations in respect Indebtedness of the Notes or any other Indebtedness (other than Subordinated Indebtedness) of the Company or any Restricted Subsidiary, other than Indebtedness owed to the Company or any a Restricted Subsidiary that is not a Guarantor (and, in the case of revolving commitments, and to correspondingly reduce commitments with respect thereto), provided that, other than Indebtedness owed to the extent either Issuer Parent or another Subsidiary of the Parent;
(iii) to acquire the Capital Stock of a Person engaged in a Similar Business, if, after giving effect to any such acquisition of Capital Stock, such Person becomes a Restricted Subsidiary will so repay of the Parent;
(iv) to acquire other assets that are not classified as current assets under GAAP and that are used or useful in a Similar Business and/or to make expenditures for maintenance, repair or improvement of existing properties and assets; or
(v) any combination of the foregoing.
(c) Pending the final application of any such Indebtedness (other than the Notes)Net Proceeds, the Issuers will Parent or a Restricted Subsidiary may temporarily reduce Obligations Indebtedness under the Notes on Revolving Credit Agreement or otherwise invest such 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 (by election or as a pro rata basis by, at their option, (iresult of the passage of time) redeeming Notes as provided under Section 3.07 hereof or in subsection (iib) by making an offer (in accordance with above shall be deemed to constitute “Excess Proceeds.” When the procedures set forth herein for aggregate amount of Excess Proceeds exceeds $5.0 million, within 10 Business Days thereof, the Company shall make an Asset Sale Offer) Offer to all Holders to purchase their the maximum principal amount of Notes at a purchase that may be purchased out of the Excess Proceeds. The offer price for such Asset Sale Offer shall be an amount in cash equal to 100.0100% of the principal amount thereof, plus the amount of accrued but and unpaid interestinterest and Additional Interest, if any, to the date of purchase (subject to the right of Holders on the relevant record date to receive interest due on an interest payment date falling on or prior to the date of 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 and its Restricted Subsidiaries may use any remaining Excess Proceeds for any purpose not otherwise prohibited by this Indenture. If the aggregate principal amount of Notes surrendered by Holders thereof exceeds the amount of the Excess Proceeds, the Trustee shall select the Notes to be repurchased purchased on a pro rata basis based upon principal balance of Notes surrendered, subject to the date of repurchase; or |US-DOCS\143900591.2||
(D) Obligations in respect of Indebtedness of a Non-Guarantor Subsidiary, other than Indebtedness owed to the Company or another Restricted SubsidiaryApplicable Procedures; provided, that in connection with any such proration, the case Trustee may make such adjustments upward or downward and not exceeding $1,000 principal amount such that the unpurchased portion of clauses (A) any Note shall equal $2,000 principal amount or (C) above, (i) if an integral multiple of $1,000 in excess thereof. Upon completion of such offer to purchase any Indebtedness purchase, the amount of the Excess Proceeds shall be reset at zero. The Company or any Restricted Subsidiary is madeshall comply, such amount will be deemed repaid to the extent applicable, with the requirements of Section 14(e) of, and Rule 14e-1 under, the Exchange Act and any other securities laws and regulations thereunder in connection with the repurchase of the amount Notes as a result of such offeran Asset Sale Offer. To the extent that the provisions of any securities laws or regulations conflict with the provisions of this Indenture (including Section 3.09), whether or the Company shall comply with the applicable securities laws and regulations and shall not accepted by the holders of such Indebtedness, and no Net Proceeds in the amount of such offer will be deemed to exist following have breached its obligations under this Indenture by virtue of its compliance with such offer, and (ii) if the holder of any Indebtedness of a Restricted Subsidiary of the Company declines the repayment of such Indebtedness owed to it from such Net Proceeds such amount will be deemed repaid to the extent of the declined Net Proceeds, or
(2) to make an Investment in (A) any one securities laws or more businesses, provided that such Investment in any business is in the form of the acquisition of Capital Stock that results in the Company or any Restricted Subsidiary, as the case may be, owning an amount of the Capital Stock of such business such that such business constitutes a Restricted Subsidiary or increases the Company’s direct or indirect percentage ownership of the Capital Stock of a Restricted Subsidiary;regulations.
Appears in 1 contract
Sources: Indenture (Thermon Holding Corp.)
Asset Sales. (a) From and after the Completion Date, the Company shall not consummateTLLP will not, and shall will not permit any of its Restricted Subsidiaries to consummateto, consummate an Asset Sale, Sale unless:
(1) TLLP (or the Company or such Restricted Subsidiary, as the case may be, ) receives consideration at the time of such Asset Sale at least equal to the fair market value Fair Market Value (as such Fair Market Value to be determined in good faith by on the Company at the time date of contractually agreeing to such Asset SaleSale and which shall give effect to the assumption by another Person of any liabilities as provided for in clause (A) of the following paragraph) of the assets or Equity Interests issued or sold or otherwise disposed of; and
(2) except in the case of a Permitted Asset Swap, if the property or assets sold or otherwise disposed of have a fair market value in excess of the greater of $375.0 million and 50.0% of LTM EBITDA for the most recently ended Test Period at the time of such disposition, at least 75.075% of the consideration therefor received in the Asset Sale by the Company TLLP or such Restricted Subsidiary, as the case may be, Subsidiary is in the form of cash or Cash Equivalents; provided that . For purposes of the amount ofpreceding clause (2) of this provision, each of the following shall be deemed to be cash:
(A) any liabilities, contingent or otherwiseas shown on TLLP’s most recent consolidated balance sheet, of the Company TLLP or such any Restricted Subsidiary, Subsidiary (other than contingent liabilities and liabilities that are by their terms subordinated to the Notes or any Note Guarantees) that are owed to the Company or a Restricted Subsidiary that (x) are assumed by the transferee of any such assets (pursuant to a customary novation agreement that releases TLLP or a third party in connection with such transfer) or (y) are otherwise cancelled or terminated in connection with the transaction with such transferee (other than intercompany debt owed to the Company or its Restricted Subsidiaries) and, in each case, for which the Company and all of its Restricted Subsidiaries have been validly released,Subsidiary from further liability;
(B) any securities, notes or other obligations or assets received by the Company TLLP or any such Restricted Subsidiary from in connection with such transferee transaction that within 90 days after the Asset Sale (subject to ordinary settlement periods) are converted by the Company TLLP or such Restricted Subsidiary into cash or Cash Equivalents (Equivalents, to the extent of the cash or Cash Equivalents received) within 180 days following the closing of such Asset Salereceived in that conversion;
(C) Indebtedness of any Restricted Subsidiary that ceases to be a Restricted Subsidiary as a result of such Asset Sale (other than intercompany debt owed to the Company stock or any Restricted Subsidiary), to the extent that the Company and each other Restricted Subsidiary are released from any guarantee of payment of the principal amount of such Indebtedness in connection with such Asset Sale in accordance with the terms of this Indenture;
(D) consideration consisting of Indebtedness of the Issuers or a Guarantor (other than intercompany debt owed to the Company or any Restricted Subsidiary and other than Subordinated Indebtedness) received after the Issue Date from Persons who are not the Company, Holdings or any Restricted Subsidiary;
(E) any Designated Non-cash Consideration received by the Company or such Restricted Subsidiary in such Asset Sale having an aggregate fair market value, as determined by the Company, taken together with all other Designated Non-cash Consideration received pursuant to this clause (E) that is at that time outstanding, not to exceed the greater of $225.0 million and 30.0% of LTM EBITDA for the most recently ended Test Period at the time of the receipt of |US-DOCS\143900591.2|| such Designated Non-cash Consideration (with the fair market value of each such item of Designated Non-cash Consideration being measured pursuant to this clause (E) at the Company’s option, either at the time of contractually agreeing to such Asset Sale or at the time received and, in either case, without giving effect to subsequent changes in value); and
(F) any Investment, Capital Stock, assets, property or capital or other expenditure assets of the kind referred to in clauses (2) or (34) of the next succeeding paragraph received by TLLP or any such Restricted Subsidiary in connection with such transaction; and
(D) accounts receivable of a business retained by TLLP or any of its Restricted Subsidiaries, as the case may be, following the sale of such business, provided such accounts receivable (x) are not past due more than 60 days and (y) do not have a payment date greater than 90 days from the date of the invoices creating such accounts receivable; provided that any Asset Sale pursuant to a condemnation, appropriation or other similar taking, including by deed in lieu of condemnation, or pursuant to the foreclosure or other enforcement of a Lien incurred not in violation of Section 4.10(b4.12 or exercise by the related lienholder of rights with respect thereto, including by deed or assignment in lieu of foreclosure, shall not be required to satisfy the conditions set forth in clauses (1) hereof shall be deemed to be Cash Equivalents for purposes and (2) of this provision and for no other purpose.
(b) paragraph. Within 540 365 days after the receipt of any Net Proceeds of from an Asset Sale, TLLP (or any Asset Sale (the “Proceeds Application Period”), the Company or such Restricted Subsidiary, at their option, ) may apply an amount equal to the such Net Proceeds from such Asset Sale,at its option to any combination of the following:
(1) to reduce, prepay, repay repay, redeem or purchase:
(A) to the extent such Net Proceeds are from an Asset Sale repurchase Senior Indebtedness of Collateral, Obligations with Pari Passu Lien Priority (including the Senior Credit Facilities or any Refinancing Indebtedness in respect thereof but other than Indebtedness owed to the Company or any TLLP and/or its Restricted Subsidiary), and, in the case of revolving obligations, to correspondingly reduce commitments with respect thereto, provided that, to the extent either Issuer or any Restricted Subsidiary will so repay any such Indebtedness (other than the Notes), the Issuers shall reduce Obligations under the Notes on a pro rata basis by, at their option, (i) redeeming Notes as provided under Section 3.07 hereof (ii) purchasing Notes through open-market purchases or (iii) by making an offer (in accordance with the procedures set forth herein for an Asset Sale Offer) to all Holders to purchase their Notes at a purchase price equal to 100.0% of the principal amount thereof, plus the amount of accrued but unpaid interest, if any, on the principal amount of the Notes to be repurchased to the date of repurchaseSubsidiaries;
(B2) to acquire a controlling interest in another business or all or substantially all of the extent such Net Proceeds resulted from an Asset Sale not consisting of Collateralassets of, Obligations in respect of other Secured Indebtedness (which may include the Notes)or any Capital Stock or operating line of, andanother business, in each case engaged in a Permitted Business, if, after giving effect to any such acquisition of Capital Stock, the case Permitted Business is or becomes a Restricted Subsidiary of revolving commitments, to correspondingly reduce commitments with respect theretoTLLP;
(C3) Obligations to make capital expenditures; or
(4) to acquire other assets that are not classified as current assets under GAAP and that are used or useful in respect of the Notes or any other Indebtedness (other than Subordinated Indebtedness) of the Company or any Restricted Subsidiary, other than Indebtedness owed to the Company or any Restricted Subsidiary (and, in the case of revolving commitments, to correspondingly reduce commitments with respect thereto), a Permitted Business; provided that, to the extent either Issuer or any Restricted Subsidiary will so repay any such Indebtedness (other than the Notes), the Issuers will reduce Obligations under the Notes on a pro rata basis by, at their option, (i) redeeming Notes as provided under Section 3.07 hereof or (ii) by making an offer (in accordance with the procedures set forth herein for an Asset Sale Offer) to all Holders to purchase their Notes at a purchase price equal to 100.0% of the principal amount thereof, plus the amount of accrued but unpaid interest, if any, on the principal amount of the Notes to be repurchased to the date of repurchase; or |US-DOCS\143900591.2||
(D) Obligations in respect of Indebtedness of a Non-Guarantor Subsidiary, other than Indebtedness owed to the Company or another Restricted Subsidiary; provided, in the case of clauses (A2), (3) or and (C4) above, (i) if an offer to purchase any Indebtedness a binding commitment shall be treated as a permitted application of the Company or any Restricted Subsidiary is made, such amount will be deemed repaid to Net Proceeds from the extent of the amount date of such offer, whether commitment so long as TLLP (or not accepted by the holders of such Indebtedness, and no Net Proceeds in the amount of such offer will be deemed to exist following such offer, and (ii) if the holder of any Indebtedness of a Restricted Subsidiary of the Company declines the repayment of such Indebtedness owed to it from such Net Proceeds such amount will be deemed repaid to the extent of the declined Net Proceeds, or
(2) 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 that results in the Company or any applicable Restricted Subsidiary, 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 (an “Acceptable Commitment”); and such Net Proceeds are actually applied in such manner within the later of 365 days from the consummation of the Asset Sale and 180 days from the date of the Acceptable Commitment, owning an and in the event any Acceptable Commitment is later cancelled or terminated for any reason before the Net Proceeds are applied in connection therewith, TLLP (or the applicable Restricted Subsidiary, as the case may be) enters into another Acceptable Commitment (a “Second Commitment”) within 180 days of such cancellation or termination and such Net Proceeds are actually applied in such manner within 180 days from the date of the Second Commitment, it being understood that if a Second Commitment is later cancelled or terminated for any reason before such Net Proceeds are applied then such Net Proceeds shall constitute Excess Proceeds. Pending the final application of any Net Proceeds, TLLP 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. 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 five days after the date on which the aggregate amount of Excess Proceeds exceeds $50.0 million (or, at the Capital Stock Issuers’ option, any earlier date), the Issuers will make 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 or redeem with the proceeds of sales of assets to purchase the maximum principal amount of Notes and such other pari passu Indebtedness that may be purchased out of the Excess Proceeds. The offer price in any Asset Sale Offer will be equal to 100% of the principal amount (or accreted value) thereof 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, TLLP or any Restricted Subsidiary 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 the representative of such business other pari passu Indebtedness will select 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. TLLP will comply with the requirements of Rule 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 each repurchase of Notes pursuant to 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, TLLP will comply with the applicable securities laws and regulations and will not be deemed to have breached its obligations under Section 3.09 hereof or this Section 4.10 by virtue of such business constitutes a Restricted Subsidiary or increases the Company’s direct or indirect percentage ownership of the Capital Stock of a Restricted Subsidiary;compliance.
Appears in 1 contract
Sources: Indenture (Tesoro Logistics Lp)
Asset Sales. (a) From and after the Completion Date, the The Company shall not consummatewill not, and shall will not permit any of its Restricted Subsidiaries to consummateto, consummate an Asset Sale, Sale unless:
(1) the Company (or such 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 determined in good faith by of the Company at date of the time of contractually agreeing definitive agreement with respect to such Asset Sale) of the assets or Equity Interests issued or sold or otherwise disposed of; and
(2) except in the case of a Permitted Asset Swap, if the property or assets sold or otherwise disposed of have a fair market value in excess of the greater of $375.0 million and 50.0% of LTM EBITDA for the most recently ended Test Period at the time of such disposition, at least 75.075% of the consideration therefor received in the Asset Sale by the Company or such Restricted Subsidiary, as the case may be, Subsidiary is in the form of cash or Cash Equivalents; provided provided, however, to the extent that any disposition in such Asset Sale was of Collateral, any consideration received is pledged as Collateral under the amount ofSecurity Documents promptly after receipt of such non-cash consideration by the Company or such Restricted Subsidiary, to the extent required by and, in accordance with the requirements set forth in this Indenture and the Security Documents. For purposes of this Section 4.20(a), each of the following will be deemed to be cash:
(A) any liabilities, contingent as shown on the Company’s most recent consolidated balance sheet (or, if incurred after the date of such balance sheet, as would have been shown on such consolidated balance sheet had they been incurred on or otherwiseprior to its date), of the Company or such any Restricted Subsidiary, Subsidiary (other than contingent liabilities and liabilities that are by their terms subordinated to the Notes or any Note Guarantee) that are owed to the Company or a Restricted Subsidiary that (x) are assumed by the transferee of any such assets (or a third party in connection with such transfer) or (y) are otherwise cancelled or terminated in connection with the transaction with such transferee (any other Person, other than intercompany debt owed to the Company or one of its Restricted Subsidiaries) and, in each case, for which pursuant to a customary novation or indemnity agreement that releases the Company and all of its or such Restricted Subsidiaries have been validly released,Subsidiary from or indemnifies it against further liability;
(B) any securities, notes notes, or other obligations or assets received by the Company or such any of its Restricted Subsidiary Subsidiaries from such transferee that are are, subject to ordinary settlement periods, converted by the Company or such Restricted Subsidiary into cash or Cash Equivalents (cash, to the extent of the cash or Cash Equivalents received) within 180 days following the closing of such Asset Sale;received in that conversion; and
(C) Indebtedness of any Restricted Subsidiary that ceases to be a Restricted Subsidiary as a result of such Asset Sale (other than intercompany debt owed to the Company stock or any Restricted Subsidiary), to the extent that the Company and each other Restricted Subsidiary are released from any guarantee of payment of the principal amount of such Indebtedness in connection with such Asset Sale in accordance with the terms of this Indenture;
(D) consideration consisting of Indebtedness of the Issuers or a Guarantor (other than intercompany debt owed to the Company or any Restricted Subsidiary and other than Subordinated Indebtedness) received after the Issue Date from Persons who are not the Company, Holdings or any Restricted Subsidiary;
(E) any Designated Non-cash Consideration received by the Company or such Restricted Subsidiary in such Asset Sale having an aggregate fair market value, as determined by the Company, taken together with all other Designated Non-cash Consideration received pursuant to this clause (E) that is at that time outstanding, not to exceed the greater of $225.0 million and 30.0% of LTM EBITDA for the most recently ended Test Period at the time of the receipt of |US-DOCS\143900591.2|| such Designated Non-cash Consideration (with the fair market value of each such item of Designated Non-cash Consideration being measured pursuant to this clause (E) at the Company’s option, either at the time of contractually agreeing to such Asset Sale or at the time received and, in either case, without giving effect to subsequent changes in value); and
(F) any Investment, Capital Stock, assets, property or capital or other expenditure assets of the kind referred to in clauses (2) or (34) of Section 4.10(b) hereof shall be deemed to be Cash Equivalents for purposes of this provision and for no other purpose.4.20(b); and
(b) Within 540 360 days after the receipt of any Net Proceeds of any Asset Sale (the “Proceeds Application Period”), the Company or such Restricted Subsidiary, at their option, may apply an amount equal to the Net Proceeds from such Asset Sale,
(1) to reduce, prepay, repay or purchase:
(A) to the extent such Net Proceeds are from an Asset Sale of CollateralSale, Obligations with Pari Passu Lien Priority (including the Senior Credit Facilities or any Refinancing Indebtedness in respect thereof but other than Indebtedness owed to the Company or any Restricted Subsidiary), and, in the case of revolving obligations, to correspondingly reduce commitments with respect thereto, provided that, to the extent either Issuer or any Restricted Subsidiary will so repay any such Indebtedness (other than the Notes), the Issuers shall reduce Obligations under the Notes on a pro rata basis by, at their option, (i) redeeming Notes as provided under Section 3.07 hereof (ii) purchasing Notes through open-market purchases or (iii) by making an offer (in accordance with the procedures set forth herein for an Asset Sale Offer) to all Holders to purchase their Notes at a purchase price equal to 100.0% of the principal amount thereof, plus the amount of accrued but unpaid interest, if any, on the principal amount of the Notes to be repurchased to the date of repurchase;
(B) to the extent such Net Proceeds resulted from an Asset Sale not consisting of Collateral, Obligations in respect of other Secured Indebtedness (which may include the Notes), and, in the case of revolving commitments, to correspondingly reduce commitments with respect thereto;
(C) Obligations in respect of the Notes or any other Indebtedness (other than Subordinated Indebtedness) of the Company or any Restricted Subsidiary, other than Indebtedness owed to the Company or any Restricted Subsidiary may apply such Net Proceeds:
(and1) to repay Indebtedness and other Obligations under a Credit Facility; provided that, in if the case of Indebtedness repaid is revolving commitmentscredit Indebtedness, to correspondingly permanently reduce commitments with respect thereto), provided that, to the extent either Issuer or any Restricted Subsidiary will so repay any such Indebtedness (other than the Notes), the Issuers will reduce Obligations under the Notes on a pro rata basis by, at their option, (i) redeeming Notes as provided under Section 3.07 hereof or (ii) by making thereto in an offer (in accordance with the procedures set forth herein for an Asset Sale Offer) to all Holders to purchase their Notes at a purchase price amount equal to 100.0% of the principal amount thereof, plus the amount of accrued but unpaid interest, if any, on the principal amount of the Notes to be repurchased to the date of repurchase; or |US-DOCS\143900591.2||
(D) Obligations in respect of Indebtedness of a Non-Guarantor Subsidiary, other than Indebtedness owed to the Company or another Restricted Subsidiary; provided, in the case of clauses (A) or (C) above, (i) if an offer to purchase any Indebtedness of the Company or any Restricted Subsidiary is made, such amount will be deemed repaid to the extent of the amount of such offer, whether or not accepted by the holders of such Indebtedness, and no Net Proceeds in the amount of such offer will be deemed to exist following such offer, and (ii) if the holder of any Indebtedness of a Restricted Subsidiary of the Company declines the repayment of such Indebtedness owed to it from such Net Proceeds such amount will be deemed repaid to the extent of the declined Net Proceeds, orso repaid;
(2) to make an Investment in (A) acquire all or substantially all of the assets of, or any Capital Stock of, a Permitted Business or one or more businessesPersons primarily engaged in a Permitted Business, provided that if, after giving effect to any such Investment in any business is in the form of the acquisition of Capital Stock that results in the Company Stock, such Permitted Business or any Restricted SubsidiaryPerson, as the case may be, owning an amount of the Capital Stock of such business such that such business constitutes is or becomes a Restricted Subsidiary or increases of the Company’s direct ;
(3) to make a capital expenditure; or
(4) to acquire other assets that are not classified as current assets under GAAP and that are used or indirect percentage ownership useful in a Permitted Business; provided that the assets (including Voting Stock) acquired with the Net Cash Proceeds of a disposition of Collateral are pledged as Collateral under the Security Documents promptly after receipt of such assets by the Company or one of its Restricted Subsidiaries, to the extent required by and in accordance with the Security Documents. Pending the final application of any Net Proceeds, the Company or any Restricted Subsidiary may apply the Net Proceeds to 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 above in this Section 4.20(b) will constitute “Excess Proceeds.” When the aggregate amount of Excess Proceeds exceeds $7.5 million, the Company will, within five days thereof, 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 amount of principal of, and premium, if any, and interest and Additional Interest, if any, on, the Notes and such other pari passu Indebtedness that may be purchased, prepaid or redeemed out of the Capital Stock Excess Proceeds (after deducting therefrom all fees and expenses incurred in connection therewith).
(c) The offer price for the Notes in any Asset Sale Offer will be equal to 100% of the principal amount 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, and will be payable in cash.
(d) 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.
(e) If the sum of the aggregate amount of principal of, and premium, if any, interest and Additional Interest, if any, on, the Notes and other pari passu Indebtedness tendered into (or required to be prepaid or redeemed in connection with) such Asset Sale Offer plus the aggregate amount of all fees and expenses incurred in connection with such Asset Sale Offer and the purchase, prepayment or redemption of any such pari passu Indebtedness exceeds the amount of Excess Proceeds, the Trustee or the Registrar will, after deducting from such Excess Proceeds an amount equal to all such fees and expenses, select the Notes to be purchased on a pro rata basis with any such pari passu Indebtedness (except that any Notes represented in global form will be selected by such method as DTC or the applicable Depositary, as the case may be, or its nominee may require), based on the amounts tendered or required to be prepaid or redeemed (including, amounts required to be paid in respect of principal, premium, if any, interest and Additional Interest, if any), with such adjustments as may be deemed appropriate so that Notes are repurchased in denominations of $2,000 in principal amount and integral multiples of $1,000 in principal amount in excess thereof and so that any such pari passu Indebtedness issued in specified authorized denominations is only repurchased in such authorized denominations or so that any unrepurchased portion of a Note or such pari passu Indebtedness that is repurchased in part is an authorized denomination. Upon completion of each Asset Sale Offer, the amount of Excess Proceeds will be reset at zero.
(f) The Company will not and will not permit any of its Restricted Subsidiary;Subsidiaries to, enter into or suffer to exist any agreement (other than any agreement governing Credit Facilities for Indebtedness permitted to be incurred pursuant to clause (1) of the second paragraph of Section 4.08 that would place any restriction of any kind (other than pursuant to law or regulation) on the ability of the Company to make an Asset Sale Offer.
(g) 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 those laws and regulations are applicable in connection with each repurchase of Notes and any pari passu Indebtedness pursuant to an Asset Sale Offer. To the extent that the provisions of any securities laws or regulations conflict with the Asset Sale provisions of this Indenture, the Company will comply with the applicable securities laws and regulations and will not be deemed to have breached its obligations under the Asset Sale provisions of this Indenture by virtue of such compliance.
Appears in 1 contract
Asset Sales. (a) From and after the Completion Issue Date, the Company Issuer shall not consummatenot, and shall not permit any of its Restricted Subsidiaries to Subsidiary to, consummate, directly or indirectly, an Asset Sale, Sale unless:
(1) the Company Issuer or such Restricted Subsidiary, as the case may be, receives consideration at the time of such Asset Sale at least equal to the fair market value (as determined in good faith by the Company measured at the time of contractually agreeing to such Asset Sale) of the assets sold or otherwise disposed of; and
(2) except in the case of a Permitted Asset Swap, if the property or assets sold or otherwise disposed of have a fair market value in excess at least 75% of the greater of $375.0 million and 50.0% of LTM EBITDA for the most recently ended Test Period consideration (measured at the time of agreeing to such dispositionAsset Sale) for such Asset Sale, at least 75.0% of together with all other Asset Sales since the consideration therefor Issue Date (on a cumulative basis), received by the Company Issuer or such Restricted Subsidiary, as the case may be, is in the form of cash or Cash Equivalents; provided that the amount of:
(A) any liabilities, contingent or otherwise, of the Company or such Restricted Subsidiary, other than liabilities that are by their terms subordinated to the Notes or that are owed to the Company or a Restricted Subsidiary that (x) are assumed by the transferee of any such assets (or a third party in connection with such transfer) or (y) are otherwise cancelled or terminated in connection with the transaction with such transferee (other than intercompany debt owed to the Company or its Restricted Subsidiaries) and, in each case, for which the Company and all of its Restricted Subsidiaries have been validly released,
(B) any securities, notes or other obligations or assets received by the Company or such Restricted Subsidiary from such transferee that are converted by the Company or such Restricted Subsidiary into cash or Cash Equivalents (to the extent of the cash or Cash Equivalents received) within 180 days following the closing of such Asset Sale;
(C) Indebtedness of any Restricted Subsidiary that ceases to be a Restricted Subsidiary as a result of such Asset Sale (other than intercompany debt owed to the Company or any Restricted Subsidiary), to the extent that the Company and each other Restricted Subsidiary are released from any guarantee of payment of the principal amount of such Indebtedness in connection with such Asset Sale in accordance with the terms of this Indenture;
(D) consideration consisting of Indebtedness of the Issuers or a Guarantor (other than intercompany debt owed to the Company or any Restricted Subsidiary and other than Subordinated Indebtedness) received after the Issue Date from Persons who are not the Company, Holdings or any Restricted Subsidiary;
(E) any Designated Non-cash Consideration received by the Company or such Restricted Subsidiary in such Asset Sale having an aggregate fair market value, as determined by the Company, taken together with all other Designated Non-cash Consideration received pursuant to this clause (E) that is at that time outstanding, not to exceed the greater of $225.0 million and 30.0% of LTM EBITDA for the most recently ended Test Period at the time of the receipt of |US-DOCS\143900591.2|| such Designated Non-cash Consideration (with the fair market value of each such item of Designated Non-cash Consideration being measured pursuant to this clause (E) at the Company’s option, either at the time of contractually agreeing to such Asset Sale or at the time received and, in either case, without giving effect to subsequent changes in value); and
(F) any Investment, Capital Stock, assets, property or capital or other expenditure of the kind referred to in clauses (2) or (3) of Section 4.10(b) hereof shall be deemed to be Cash Equivalents for purposes of this provision and for no other purpose.
(b) Within 540 450 days after the later of (A) the date of any Asset Sale and (B) the receipt of any Net Proceeds of from any Asset Sale (the “Asset Sale Proceeds Application Period”), the Company Issuer or such Restricted Subsidiary, at their its option, may apply an amount equal to the Net Proceeds from such Asset Sale,
(1) to reduce, prepay, repay or purchase:
(A) to the extent such Net Proceeds are from an Asset Sale of Collateral, to repay (i) First Lien Obligations with Pari Passu under the Notes and any Additional Notes, (ii) First Lien Priority (including the Senior Obligations under Secured Indebtedness incurred pursuant to a Credit Facilities or any Refinancing Indebtedness in respect thereof but other than Indebtedness owed Facility to the Company extent such Obligations were incurred or outstanding under clause (1) of Section 4.09(b) and/or (iii) First Lien Obligations under any Restricted Subsidiary)other Secured Indebtedness, andand in each case, in the case of revolving obligations, to correspondingly reduce commitments with respect thereto, ; provided that, to the extent either that if Issuer or any Restricted Subsidiary will shall so repay reduce any such Indebtedness (First Lien Obligations other than the NotesNotes pursuant to clause (ii) or (iii), the Issuers shall Issuer or such Restricted Subsidiary will either (A) reduce Obligations under the Notes on a pro rata basis with such other First Lien Obligations by, at their its option, (ix) redeeming Notes as provided under pursuant to Section 3.07 hereof or (iiy) purchasing Notes through open-open market purchases or in privately negotiated transactions at market prices (iiiwhich may be below par), or (B) by making make an offer (in accordance with the procedures set forth herein for an Asset Sale OfferOffer set forth in Section 3.09 and this Section 4.10) to all Holders to purchase their Notes at on a purchase price equal to 100.0ratable basis with such other First Lien Obligations for no less than 100% of the principal amount thereof, plus the amount of accrued but unpaid interest, if any, on thereon up to the principal amount of the Notes to be repurchased to the date of repurchaserepurchased;
(B2) to the extent such Net Proceeds resulted are from an Asset Sale that does not consisting constitute Collateral, to repay Obligations under any Senior Indebtedness, and in the case of revolving obligations, to correspondingly reduce commitments with respect thereto; provided that the Issuer or such Restricted Subsidiary will either (A) reduce the aggregate principal amount of Obligations under the Notes on an equal or ratable basis with any Senior Indebtedness repaid pursuant to this clause (2) by, at its option, (x) redeeming Notes and any Additional Notes as described in Section 3.07 and/or (y) purchasing Notes and any Additional Notes through open-market purchases or in privately negotiated transactions at market prices (which may be below par) and/or (B) make an offer (in accordance with Section 3.09) to all Holders to purchase their Notes and any Additional Notes on an equal or ratable basis with any Senior Indebtedness repaid pursuant to this clause (2) (which offer shall be deemed to be an Asset Sale Offer for purposes hereof);
(3) to invest in the business of the Issuer and its Subsidiaries, including (i) any investment in Additional Assets and (ii) making capital expenditures; provided that to the extent such Net Proceeds are from an Asset Sale of Collateral, Obligations such Net Proceeds shall be invested in respect Additional Assets that are substantially concurrently added to the Collateral in the manner and to the extent required under this Indenture and the Security Documents;
(4) to the extent such Net Proceeds are from an Asset Sale that does not constitute Collateral, to repay Indebtedness of any Restricted Subsidiary that is not a Guarantor, other Secured than Indebtedness (which may include owed to the Notes)Issuer or a Guarantor, and, in the case of revolving commitmentsobligations, to correspondingly reduce commitments with respect thereto;; or
(C5) Obligations in respect any one or more combinations of the Notes or any other Indebtedness (other than Subordinated Indebtedness) of the Company or any Restricted Subsidiary, other than Indebtedness owed to the Company or any Restricted Subsidiary (andforegoing; provided that, in the case of revolving commitmentsclause (3) above, any agreement shall be treated as a permitted application of the Net Proceeds from the date of such agreement so long as the Issuer or such Restricted Subsidiary enters into such agreement with the good faith expectation that such Net Proceeds will be applied to correspondingly reduce commitments with respect theretosatisfy such agreement within 180 days of the expiration of the Asset Sale Proceeds Application Period (an “Acceptable Commitment”) and such Net Proceeds are actually applied substantially in such manner within 180 days of the expiration of the Asset Sale Proceeds Application Period (the period from the consummation of the Asset Sale to such date, the “First Commitment Application Period”), and, in the event any Acceptable Commitment is later cancelled or terminated for any reason after the expiration of the Asset Sale Proceeds Application Period and before the Net Proceeds are applied in connection therewith, then such Net Proceeds shall constitute Excess Proceeds unless the Issuer or such Restricted Subsidiary reasonably intends to enter into another Acceptable Commitment prior to the expiration of the First Commitment Application Period (a “Second Commitment”) and such Net Proceeds are actually applied substantially in such manner prior to 180 days from the date of entering into the Second Commitment; provided, further, that if any Second Commitment is cancelled or terminated for any reason before such Net Proceeds are applied or if the date of such Second Commitment is not prior to the date of the expiration of the First Commitment Application Period then such Net Proceeds shall constitute Excess Proceeds.
(c) Any Net Proceeds from the Asset Sale covered by this Section 4.10 that are not invested or applied as provided thatand within the time period set forth in Section 4.10(b) will be deemed to constitute “Excess Proceeds”; provided that any amount of Net Proceeds offered to Holders of the Notes pursuant to clauses (1)(i) and (2) of Section 4.10(b) shall not be deemed to be Excess Proceeds without regard to whether such offer is accepted by any Holders. No later than 30 Business Days after the date that the aggregate amount of Excess Proceeds, after giving effect to the operation of the immediately following sentence, exceeds $200.0 million, the Issuer shall make an offer to purchase to all Holders and, if required by the terms of other Indebtedness that (i) to the extent either Issuer or any Restricted Subsidiary will so repay any such Indebtedness (other than the Notes)Net Proceeds are from an Asset Sale of Collateral, the Issuers will reduce Obligations under has Pari Passu Lien Priority with the Notes on a pro rata basis by, at their option, (i) redeeming Notes as provided under Section 3.07 hereof or and (ii) by making an offer (in accordance with to the procedures set forth herein for extent such Net Proceeds are from an Asset Sale that does not constitute Collateral, is pari passu in right of payment with the Notes (“Pari Passu Indebtedness”), to repay or offer to repay such Pari Passu Indebtedness (an “Asset Sale Offer”) to all Holders to purchase their the maximum aggregate principal amount (or accreted value, as applicable) of the Notes at a purchase price and such Pari Passu Indebtedness (in the case of the Notes only, equal to 100.0$1,000 or an integral multiple thereof) that may be purchased or repaid out of the Excess Proceeds (at an offer price in cash in the case of the Notes in an amount equal to 100% of the principal amount thereof, plus the amount of accrued but and unpaid interest, if any, on to, but excluding, the principal amount date fixed for the repurchase of such Notes pursuant to such offer) in accordance with the procedures set forth in this Indenture and, if applicable, the documents governing the applicable Indebtedness having Pari Passu Lien Priority or Pari Passu Indebtedness, as the case may be. Notwithstanding the foregoing, the Issuer shall only be required to make an Asset Sale Offer with (i) 50% of the Excess Proceeds if the Consolidated Secured Debt Ratio of the Issuer for the Applicable Measurement Period is less than or equal to 3.0 to 1.0 but greater than 2.5 to 1.0 or (ii) 0% of the Excess Proceeds if the Consolidated Secured Debt Ratio of the Issuer for the Applicable Measurement Period is less than or equal to 2.5 to 1.0, in each case after giving effect to any application of any Net Proceeds as set forth in this Section 4.10, including making an offer to repurchase a portion of the Notes (any Excess Proceeds not required to be repurchased offered in an Asset Sale Offer in reliance on this sentence shall constitute “Leverage Excess Proceeds”). With respect to the date of repurchase; or |US-DOCS\143900591.2||
(D) Obligations in respect of Indebtedness of a Non-Guarantor SubsidiaryNotes only, other than Indebtedness owed the Issuer shall commence an Asset Sale Offer by sending the notice required pursuant to the Company or another Restricted Subsidiary; providedterms of this Indenture, in the case of clauses (A) or (C) above, (i) if an offer to purchase any Indebtedness of the Company or any Restricted Subsidiary is made, such amount will be deemed repaid with a copy to the extent of Trustee. The Issuer may satisfy the amount of such offer, whether or not accepted by the holders of such Indebtedness, and no Net Proceeds in the amount of such offer will be deemed foregoing obligation with respect to exist following such offer, and (ii) if the holder of any Indebtedness of a Restricted Subsidiary of the Company declines the repayment of such Indebtedness owed to it from such Net Proceeds such amount will be deemed repaid from an Asset Sale by making an Asset Sale Offer in advance of being required to do so by this Indenture (an “Advance Offer”) with respect to all or part of the available Net Proceeds (the “Advance Portion”).
(d) To the extent that the aggregate principal amount (or accreted value, as applicable) of the declined Net ProceedsNotes and, or
(2) to make an Investment in (A) any one if applicable, Indebtedness having Pari Passu Lien Priority or more businesses, provided that such Investment in any business is in the form of the acquisition of Capital Stock that results in the Company or any Restricted SubsidiaryPari Passu Indebtedness, as the case may be, owning tendered, purchased or repaid pursuant to an Asset Sale Offer is less than the Excess Proceeds (or, in the case of an Advance Offer, any remaining Advance Portion), the Issuer may use any remaining Excess Proceeds (or, in the case of an Advance Offer, the Advance Portion) (“Declined Proceeds”) in any manner permitted or not prohibited by this Indenture. If the aggregate principal amount (or accreted value, as applicable) of Notes or the such other Indebtedness tendered, purchased or repaid, pursuant to an Asset Sale Offer exceeds the amount of Excess Proceeds (or, in the case of an Advance Offer, the Advance Portion), the Trustee shall select the Notes (subject to applicable DTC procedures as to Global Notes) and the Issuer or the representative of such Indebtedness having Pari Passu Lien Priority or Pari Passu Indebtedness, as the case may be, shall select such Indebtedness to be purchased or repaid on a pro rata basis based on the accreted value or principal amount of the Capital Stock Notes and such Indebtedness tendered, purchased or repaid, with adjustments as necessary so that no Notes or Indebtedness, as the case may be, will be repurchased in an unauthorized denomination; provided that no Notes of $2,000 or less shall be repurchased in part. Upon completion of any such Asset Sale Offer, the amount of Excess Proceeds shall be reset at zero (regardless of whether there are any remaining Excess Proceeds upon such completion), and in the case of an Advance Offer, the Advance Portion shall be excluded in subsequent calculations of Excess Proceeds.
(e) An Asset Sale Offer or an Advance Offer may be made at the same time as consents are solicited with respect to an amendment, supplement or waiver of this Indenture, the Notes, the Security Documents and/or Guarantees (but the Asset Sale Offer or Advance Offer may not condition tenders on the delivery of such business consents).
(f) Pending the final application of an amount equal to the Net Proceeds pursuant to this Section 4.10, the holder of such that Net Proceeds may apply any Net Proceeds to reduce indebtedness outstanding under a revolving credit facility (including under the Senior Credit Facilities) or otherwise invest such business constitutes a Net Proceeds in any manner permitted or not prohibited by this Indenture.
(g) For purposes of this Section 4.10 only, the following shall be deemed to be cash or Cash Equivalents:
(1) the greater of the principal amount and the carrying value of any liabilities (as reflected on the most recent balance sheet of the Issuer or such Restricted Subsidiary or increases in the Company’s direct footnotes thereto, or indirect percentage ownership if incurred, accrued or increased subsequent to the date of such balance sheet, such liabilities that would have been reflected on the balance sheet of the Capital Stock Issuer or such Restricted Subsidiary or in the footnotes thereto if such incurrence, accrual or increase had taken place on or prior to the date of such balance sheet, as determined in good faith by the Issuer) of the Issuer or such Restricted Subsidiary, other than liabilities that are by their terms subordinated to the Notes or have Junior Lien Priority, that are assumed, prepaid or repaid by the transferee of any such assets (or are otherwise extinguished in connection with the transactions relating to such Asset Sale) pursuant to a written agreement which releases or indemnifies the Issuer or such Restricted Subsidiary from such liabilities;
(2) any securities, notes or other obligations or assets received by the Issuer or such Restricted Subsidiary from such transferee that are converted by the 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 or Cash Equivalents received), in each case, within 180 days following the closing of such Asset Sale;
(3) any Designated Non-cash Consideration received by the Issuer or such Restricted Subsidiary in such Asset Sale having an aggregate fair market value (with the fair market value of such item of Designated Non-cash Consideration being measured at the date of agreement for the related Asset Sale) and without giving effect to subsequent changes in value, taken together with all other Designated Non-cash Consideration received pursuant to this clause (3) that is at that time outstanding, not to exceed the greater of (a) $330.0 million and (b) 5.0% of the Total Assets of the Issuer and its Restricted Subsidiaries at the time of agreeing to such Asset Sale; and
(4) the fair market value of any Local Marketing Agreement entered into in connection with, or received as consideration for, any Asset Sale.
(h) The Issuer shall comply with the requirements of Rule 14e1 under the Exchange Act and any other securities laws and regulations thereunder to the extent such laws or regulations are applicable in connection with the repurchase of the Notes pursuant to an Asset Sale Offer. To the extent that the provisions of any securities laws or regulations conflict with this Section 4.10, the Issuer shall comply with the applicable securities laws and regulations and shall not be deemed to have breached its obligations under this Section 4.10 by virtue of such compliance.
(i) The provisions of Section 3.09 and this Section 4.10 relating to the Issuer’s obligation to make an offer to repurchase the Notes as a result of an Asset Sale may be waived or modified with the written consent of the Holders of a Restricted Subsidiary;majority in aggregate principal amount of the Notes.
Appears in 1 contract
Asset Sales. (a) From and after the Completion Date, the The Company shall not consummatenot, and shall not permit any of its Restricted Subsidiaries to, cause, make or suffer to consummate, exist an Asset Sale, unless:
Sale unless (1i) the Company (or such the Restricted Subsidiary, as the case may be, ) receives consideration at the time of such Asset Sale at least equal to the fair market value (as determined evidenced by a resolution of the Board of Directors set forth in good faith by an Officers' Certificate delivered to the Company at the time of contractually agreeing to such Asset SaleTrustee) of the assets sold or otherwise disposed of; and
(2) except in the case of a Permitted Asset Swap, if the property Equity Interests issued or assets sold or otherwise disposed of have a fair market value in excess of the greater of $375.0 million and 50.0% of LTM EBITDA for the most recently ended Test Period at the time of such disposition, (ii) at least 75.080% of the consideration therefor received by the Company or such Restricted Subsidiary, as the case may be, Subsidiary is in the form of cash or Cash Equivalents; provided that the amount of:
of (Ax) any liabilities, contingent liabilities (as shown on the Company's or otherwise, such Restricted Subsidiary's most recent balance sheet) of the Company or such any Restricted Subsidiary, Subsidiary (other than contingent liabilities and liabilities that are by their terms subordinated to the Senior Subordinated Notes or any guarantee thereof) that are owed to the Company or a Restricted Subsidiary that (x) are assumed by the transferee of any such assets (pursuant to a customary novation agreement that releases the Company or a third party in connection with such transfer) or Restricted Subsidiary from further liability, (y) are otherwise cancelled or terminated in connection with the transaction with such transferee any Excludable Current Liabilities and (other than intercompany debt owed to the Company or its Restricted Subsidiaries) and, in each case, for which the Company and all of its Restricted Subsidiaries have been validly released,
(Bz) any securities, notes or other obligations or assets received by the Company or any such Restricted Subsidiary from such transferee that are immediately converted by the Company or such Restricted Subsidiary into cash or Cash Equivalents (to the extent of the cash or Cash Equivalents received) within 180 days following the closing of such Asset Sale;
(C) Indebtedness of any Restricted Subsidiary that ceases to be a Restricted Subsidiary as a result of such Asset Sale (other than intercompany debt owed to the Company or any Restricted Subsidiary), to the extent that the Company and each other Restricted Subsidiary are released from any guarantee of payment of the principal amount of such Indebtedness in connection with such Asset Sale in accordance with the terms of this Indenture;
(D) consideration consisting of Indebtedness of the Issuers or a Guarantor (other than intercompany debt owed to the Company or any Restricted Subsidiary and other than Subordinated Indebtedness) received after the Issue Date from Persons who are not the Company, Holdings or any Restricted Subsidiary;
(E) any Designated Non-cash Consideration received by the Company or such Restricted Subsidiary in such Asset Sale having an aggregate fair market value, as determined by the Company, taken together with all other Designated Non-cash Consideration received pursuant to this clause (E) that is at that time outstanding, not to exceed the greater of $225.0 million and 30.0% of LTM EBITDA for the most recently ended Test Period at the time of the receipt of |US-DOCS\143900591.2|| such Designated Non-cash Consideration (with the fair market value of each such item of Designated Non-cash Consideration being measured pursuant to this clause (E) at the Company’s option, either at the time of contractually agreeing to such Asset Sale or at the time received and, in either case, without giving effect to subsequent changes in value); and
(F) any Investment, Capital Stock, assets, property or capital or other expenditure of the kind referred to in clauses (2) or (3) of Section 4.10(b) hereof shall be deemed to be Cash Equivalents cash for purposes of this provision and for no other purpose.
(b) provision. Within 540 365 days after the Company's or any Restricted Subsidiary's receipt of any the Net Proceeds of any Asset Sale (or, in the “Proceeds Application Period”case of any Asset Sale involving the Specified Real Estate, by the later of (i) June 30, 1999 and (ii) the date 365 days after receipt of the Net Proceeds), the Company or such Restricted Subsidiary, at their option, Subsidiary may apply an amount equal to the Net Proceeds from such Asset Sale,
, at its option, (1i) to reduce, prepay, permanently repay or purchase:
reduce Obligations under the Bank Credit Agreement (A) to the extent such Net Proceeds are from an Asset Sale of Collateral, Obligations with Pari Passu Lien Priority (including the Senior Credit Facilities or any Refinancing Indebtedness in respect thereof but other than Indebtedness owed to the Company or any Restricted Subsidiary), and, in the case of revolving obligations, and to correspondingly reduce commitments with respect thereto) or other Senior Debt, provided that, (ii) to secure Letter of Credit Obligations to the extent either Issuer related letters of credit have not been drawn upon or any Restricted Subsidiary will so repay any such Indebtedness (other than the Notes), the Issuers shall reduce Obligations under the Notes on a pro rata basis by, at their option, (i) redeeming Notes as provided under Section 3.07 hereof (ii) purchasing Notes through open-market purchases or returned undrawn and/or (iii) to an investment in any one or more businesses, capital expenditures or acquisitions of other assets, in each case, used or useful in a Principal Business; provided that such Net Proceeds may, at the Company's option, be deemed to have been applied pursuant to clause (iii) to the extent of any expenditures by making the Company made to invest in, acquire or construct businesses, properties or assets used in the Principal Business within one year preceding the date of such Asset Sale. Pending the final application of any such Net Proceeds, the Company or such Restricted Subsidiary may temporarily reduce Indebtedness under a revolving credit facility, if any, or otherwise invest such Net Proceeds in Cash Equivalents. Any Net Proceeds from the Asset Sale that are not invested as provided and within the time period set forth in the first sentence of this paragraph shall be deemed to constitute "Excess Proceeds." When the aggregate amount of Excess Proceeds exceeds $15.0 million, the Company shall make offers to all Holders of Senior Subordinated Notes and to holders of any other Senior Subordinated Indebtedness, the terms of which so require (each an "Asset Sale Offer"), to purchase the maximum principal amount of Senior Subordinated Notes and such other Senior Subordinated Indebtedness, that is an integral multiple of $1,000, that may be purchased out of the Excess Proceeds at an offer price in cash in an amount equal to 100% of the aggregate principal amount thereof (or 100% of the accreted value thereof, in the case of Senior Subordinated Indebtedness issued at a discount), plus accrued and unpaid interest, including Liquidated Damages, if any, thereon to the date fixed for the closing of such offer in accordance with the procedures set forth herein in Section 3.09 hereof. The Excess Proceeds shall be allocated to the respective Asset Sale Offers for the Senior Subordinated Notes and such other Senior Subordinated Indebtedness in proportion to their relative principal amounts (or accreted value, as applicable). The Company shall commence an Asset Sale OfferOffer with respect to Excess Proceeds within 10 Business Days after the date that the aggregate amount of Excess Proceeds exceeds $15.0 million according to the procedure described in Section 3.09 hereof. To the extent that the aggregate amount of Senior Subordinated Notes (and other Senior Subordinated Indebtedness) tendered pursuant to any required Asset Sale Offer is less than the Excess Proceeds allocated thereto, the Company may use any remaining Excess Proceeds (x) to all Holders offer to redeem or purchase their Notes at other Senior Subordinated Indebtedness or Subordinated Indebtedness (a purchase price equal to 100.0% "Subordinated Asset Sale Offer") in accordance with the provisions of the indenture or other agreement governing such other Senior Subordinated Indebtedness or Subordinated Indebtedness or (y) for any other purpose not prohibited by any provision herein. If the aggregate principal amount thereof, plus of Senior Subordinated Notes tendered pursuant to any Asset Sale Offer exceeds the amount of accrued but unpaid interestExcess Proceeds allocated thereto, if anythe Trustee shall select the Senior Subordinated Notes to be purchased on a pro rata basis, on based upon the principal amount of Senior Subordinated Notes tendered. Upon completion of any such Asset Sale Offer, the Notes amount of Excess Proceeds shall be reset at zero. Notwithstanding the foregoing, the Company may, in lieu of making an Asset Sale Offer for other Senior Subordinated Indebtedness, satisfy its obligation under the governing agreement with respect thereto by applying the Excess Proceeds allocated to be repurchased such other Senior Subordinated Indebtedness to the date prepayment, redemption or public or private repurchase of repurchase;
(B) such Senior Subordinated Indebtedness. 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 Net Proceeds resulted from laws and regulations are applicable in connection with the repurchase of the Senior Subordinated Notes as a result of an Asset Sale not consisting of Collateral, Obligations in respect of other Secured Indebtedness (which may include the Notes), and, in the case of revolving commitments, to correspondingly reduce commitments with respect thereto;
(C) Obligations in respect of the Notes or any other Indebtedness (other than Subordinated Indebtedness) of the Company or any Restricted Subsidiary, other than Indebtedness owed to the Company or any Restricted Subsidiary (and, in the case of revolving commitments, to correspondingly reduce commitments with respect thereto), provided that, to the extent either Issuer or any Restricted Subsidiary will so repay any such Indebtedness (other than the Notes), the Issuers will reduce Obligations under the Notes on a pro rata basis by, at their option, (i) redeeming Notes as provided under Section 3.07 hereof or (ii) by making an offer (in accordance with the procedures set forth herein for an Asset Sale Offer) to all Holders to purchase their Notes at a purchase price equal to 100.0% of the principal amount thereof, plus the amount of accrued but unpaid interest, if any, on the principal amount of the Notes to be repurchased to the date of repurchase; or |US-DOCS\143900591.2||
(D) Obligations in respect of Indebtedness of a Non-Guarantor Subsidiary, other than Indebtedness owed to the Company or another Restricted Subsidiary; provided, in the case of clauses (A) or (C) above, (i) if an offer to purchase any Indebtedness of the Company or any Restricted Subsidiary is made, such amount will be deemed repaid to the extent of the amount of such offer, whether or not accepted by the holders of such Indebtedness, and no Net Proceeds in the amount of such offer will be deemed to exist following such offer, and (ii) if the holder of any Indebtedness of a Restricted Subsidiary of the Company declines the repayment of such Indebtedness owed to it from such Net Proceeds such amount will be deemed repaid to the extent of the declined Net Proceeds, or
(2) 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 that results in the Company or any Restricted Subsidiary, as the case may be, owning an amount of the Capital Stock of such business such that such business constitutes a Restricted Subsidiary or increases the Company’s direct or indirect percentage ownership of the Capital Stock of a Restricted Subsidiary;Sale.
Appears in 1 contract
Sources: Indenture (JCS Realty Corp)
Asset Sales. (a) From and after the Completion Date, the Company The Borrower shall not consummatenot, and shall not permit any of its Restricted Subsidiaries to consummateto, cause or make an Asset Sale, unless:
(1i) the Company Borrower or such any of its Restricted SubsidiarySubsidiaries, as the case may be, receives consideration at the time of such Asset Sale at least equal to the fair market value Fair Market Value (as determined in good faith by the Company at the time of contractually agreeing to such Asset SaleBorrower) of the assets sold or otherwise disposed of; and
(2ii) except in the case of a Permitted Asset Swap, if the property or assets sold or otherwise disposed of have a fair market value in excess of the greater of $375.0 million and 50.0% of LTM EBITDA for the most recently ended Test Period at the time of such disposition, at least 75.075% of the consideration therefor received by the Company Borrower or such Restricted Subsidiary, as the case may be, is in the form of cash cash, Cash Equivalents or Cash EquivalentsReplacement Assets; provided provided, however, that the amount of:
(A) any liabilities, contingent or otherwise, of liabilities (as shown on the Company Borrower’s or such Restricted Subsidiary, ’s most recent balance sheet or in the notes thereto) of the Borrower or such Restricted Subsidiary (other than liabilities that are by their terms subordinated to the Notes or Obligations) that are owed to the Company or a Restricted Subsidiary that (x) are assumed by the transferee of any such assets (or a third party in connection with Equity Interests pursuant to an agreement that releases or indemnifies the Borrower or such transfer) or (y) are otherwise cancelled or terminated in connection with Restricted Subsidiary, as the transaction with such transferee (other than intercompany debt owed to the Company or its Restricted Subsidiaries) andcase may be, in each case, for which the Company and all of its Restricted Subsidiaries have been validly released,from further liability;
(B) any securities, notes Loans or other obligations or other securities or assets received by the Company Borrower or such Restricted Subsidiary from such transferee that are converted by the Company Borrower 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) within 180 days following the closing of such Asset Sale;); and
(C) Indebtedness of any Restricted Subsidiary that ceases to be a Restricted Subsidiary as a result of such Asset Sale (other than intercompany debt owed to the Company or any Restricted Subsidiary), to the extent that the Company and each other Restricted Subsidiary are released from any guarantee of payment of the principal amount of such Indebtedness in connection with such Asset Sale in accordance with the terms of this Indenture;
(D) consideration consisting of Indebtedness of the Issuers or a Guarantor (other than intercompany debt owed to the Company or any Restricted Subsidiary and other than Subordinated Indebtedness) received after the Issue Date from Persons who are not the Company, Holdings or any Restricted Subsidiary;
(E) any Designated Non-cash Consideration received by the Company Borrower or such any of its Restricted Subsidiary Subsidiaries in such Asset Sale having an aggregate fair market value, as determined by the CompanyFair Market Value, taken together with all other Designated Non-cash Consideration received pursuant to this clause (EC) that is at that time outstanding, not to exceed the greater of (x) $225.0 75.0 million and 30.0(y) 2.5% of LTM EBITDA for the most recently ended Test Period Total Assets, at the time of the receipt of |US-DOCS\143900591.2|| such Designated Non-cash Consideration (with the fair market value Fair Market Value of each such item of Designated Non-cash Consideration being measured pursuant to this clause (E) at the Company’s option, either at the time of contractually agreeing to such Asset Sale or at the time received and, in either case, and without giving effect to subsequent changes in value); and
(F) any Investment, Capital Stock, assets, property or capital or other expenditure of the kind referred to in clauses (2) or (3) of Section 4.10(b) hereof shall each be deemed to be Cash Equivalents for the purposes of this provision and for no other purposeclause (ii).
(b) Within 540 365 days after the Borrower’s or any Restricted Subsidiary’s receipt of any the Net Cash Proceeds of any Asset Sale (the “Proceeds Application Period”)or Casualty Event, the Company Borrower or such Restricted Subsidiary, at their option, Subsidiary may apply an amount equal to the Net Cash Proceeds from such Asset Sale,
(1) to reduceSale or Casualty Event, prepay, repay or purchaseat its option:
(A) to the extent such Net Proceeds are from an Asset Sale of Collateral, Obligations with Pari Passu Lien Priority (including the Senior Credit Facilities or any Refinancing Indebtedness in respect thereof but other than Indebtedness owed to the Company or any Restricted Subsidiary), and, in the case of revolving obligations, to correspondingly reduce commitments with respect thereto, provided that, to the extent either Issuer or any Restricted Subsidiary will so repay any such Indebtedness (other than the Notes), the Issuers shall reduce Obligations under the Notes on a pro rata basis by, at their option, (i) redeeming Notes as provided under Section 3.07 hereof (ii) purchasing Notes through open-market purchases or (iii) by making an offer (in accordance with the procedures set forth herein for an Asset Sale Offer) to all Holders to purchase their Notes at a purchase price equal to 100.0% of the principal amount thereof, plus the amount of accrued but unpaid interest, if any, on the principal amount of the Notes to be repurchased to the date of repurchase;
(B) to the extent such Net Proceeds resulted from an Asset Sale not consisting of Collateral, Obligations in respect of other Secured Indebtedness (which may include the Notes), and, in the case of revolving commitments, to correspondingly reduce commitments with respect thereto;
(C) Obligations in respect of the Notes or any other Indebtedness (other than Subordinated Indebtedness) of the Company or any Restricted Subsidiary, other than Indebtedness owed to the Company or any Restricted Subsidiary (and, in the case of revolving commitments, to correspondingly reduce commitments with respect thereto), provided that, to the extent either Issuer or any Restricted Subsidiary will so repay any such Indebtedness (other than the Notes), the Issuers will reduce Obligations under the Notes on a pro rata basis by, at their option, (i) redeeming Notes as provided under Section 3.07 hereof or (ii) by making an offer (in accordance with the procedures set forth herein for an Asset Sale Offer) to all Holders to purchase their Notes at a purchase price equal to 100.0% of the principal amount thereof, plus the amount of accrued but unpaid interest, if any, on the principal amount of the Notes to be repurchased to the date of repurchase; or |US-DOCS\143900591.2||
(D) Obligations in respect of Indebtedness of a Non-Guarantor Subsidiary, other than Indebtedness owed to the Company or another Restricted Subsidiary; provided, in the case of clauses (A) or (C) above, (i) if an offer to purchase any Indebtedness of the Company or any Restricted Subsidiary is made, such amount will be deemed repaid to the extent of the amount of such offer, whether or not accepted by the holders of such Indebtedness, and no Net Proceeds in the amount of such offer will be deemed to exist following such offer, and (ii) if the holder of any Indebtedness of a Restricted Subsidiary of the Company declines the repayment of such Indebtedness owed to it from such Net Proceeds such amount will be deemed repaid to the extent of the declined Net Proceeds, or
(2) to make an Investment investment in (A) any one or more businesses, businesses (provided that if such Investment in any business investment is in the form of the acquisition of Capital Stock that Equity Interests of a Person, such acquisition results in the Company or any Restricted Subsidiary, as the case may be, owning an amount of the Capital Stock of such business such that such business constitutes Person becoming a Restricted Subsidiary or increases the Company’s direct or indirect percentage ownership of the Capital Stock Borrower), assets, or property or capital expenditures, in each case used or useful in a Similar Business;
(ii) to make an investment in any one or more businesses (provided that if such Investment is in the form of the acquisition of Equity Interests of a Person, such acquisition results in such Person becoming a Restricted Subsidiary;Subsidiary of the Borrower), properties or assets that replace the properties and assets that are the subject of such Asset Sale or Casualty Event, as applicable; or
(iii) any combination of the foregoing; 179 Syniverse Credit Agreement provided that the Borrower and its Restricted Subsidiaries shall be deemed to have complied with the provisions described in clauses (i) and (ii) of this Section 7.09(b) if and to the extent that, within 365 days after the Asset Sale or Casualty Event that generated the Net Cash Proceeds, the Borrower has entered into and not abandoned or rejected a binding agreement to make an investment in compliance with the provision described in clauses (i) and (ii) of this Section 7.09(b), and that investment 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 Borrower or such Restricted Subsidiary of the Borrower may temporarily reduce Indebtedness under a revolving credit facility, if any, or otherwise invest such Net Cash Proceeds in Cash Equivalents. Any Net Cash Proceeds from any Asset Sale or Casualty Event that are not applied as provided and within the time period set forth in Section 7.09(b) will be deemed to constitute “Excess Proceeds.” When the aggregate amount of Excess Proceeds exceeds $30.0 million, the Borrower shall prepay the Term Loans in accordance with Section 2.05(b)(ii) (and subject to Sections 2.05(b)(vii), 2.05(c) and 2.05(d)) and may, along with such prepayment of Term Loans (to the extent the Borrower or such Restricted Subsidiary elects, or is required by the terms thereof), purchase, redeem or repay any Additional Permitted Obligations (or any Permitted Refinancing Obligations or any Refinancing Indebtedness in respect of either of the foregoing) of the Borrower or a Restricted Subsidiary having Pari Passu Lien Priority, or any other Indebtedness having Pari Passu Lien Priority, pursuant to the agreements governing such other Indebtedness, on not more than a pro rata basis with respect to such prepayments of Term Loans (subject to each Term Lender’s option to decline to accept any prepayment pursuant to Section 2.05(c)).
Appears in 1 contract
Asset Sales. (a) From and after the Completion Date, the The Company shall not consummatenot, and shall not permit any of its Restricted Subsidiaries to consummateto, consummate an Asset Sale, unless:
Sale unless (1i) the Company (or such the Restricted Subsidiary, as the case may be, ) receives consideration at the time of such Asset Sale at least equal to the fair market value (as determined evidenced by an Officers' Certificate delivered to the Trustee and, with respect to any Asset Sale involving consideration in good faith by excess of $2.5 million, a resolution of the Company at the time Company's Board of contractually agreeing to such Asset SaleDirectors) of the assets sold or otherwise disposed of; and
(2) except in the case of a Permitted Asset Swap, if the property Equity Interests issued or assets sold or otherwise disposed of have a fair market value and (ii) at least 85% (or, in excess the case of the greater sale or other disposition of $375.0 million and 50.0% of LTM EBITDA for the most recently ended Test Period at the time of such disposition, at least 75.0% any Residual Receivables (or interest therein) 50%) of the consideration therefor received by the Company or such Restricted Subsidiary, as the case may be, Subsidiary is in the form of cash or Cash Equivalents; provided that the amount of:
of (Ax) any liabilities, contingent liabilities (as shown on the Company's or otherwise, such Restricted Subsidiary's most recent balance sheet) of the Company or such any Restricted Subsidiary, Subsidiary (other than contingent liabilities and liabilities that are by their terms subordinated to the Notes or Notes) that are owed to the Company or a Restricted Subsidiary that (x) are expressly assumed by the transferee of any such assets (pursuant to a customary novation agreement that releases the Company or a third party in connection with such transfer) or Restricted Subsidiary from further liability and (y) are otherwise cancelled or terminated in connection with the transaction with such transferee (other than intercompany debt owed to the Company or its Restricted Subsidiaries) andany currencies, in each case, for which the Company and all of its Restricted Subsidiaries have been validly released,
(B) any securities, notes or other obligations or assets received by the Company or any such Restricted Subsidiary from such transferee that are converted by the Company or such Restricted Subsidiary into cash or Cash Equivalents within 30 days after receipt (to the extent of the cash or Cash Equivalents received) within 180 days following the closing of such Asset Sale;
(C) Indebtedness of any Restricted Subsidiary that ceases to be a Restricted Subsidiary as a result of such Asset Sale (other than intercompany debt owed to the Company or any Restricted Subsidiary), to the extent that the Company and each other Restricted Subsidiary are released from any guarantee of payment of the principal amount of such Indebtedness in connection with such Asset Sale in accordance with the terms of this Indenture;
(D) consideration consisting of Indebtedness of the Issuers or a Guarantor (other than intercompany debt owed to the Company or any Restricted Subsidiary and other than Subordinated Indebtedness) received after the Issue Date from Persons who are not the Company, Holdings or any Restricted Subsidiary;
(E) any Designated Non-cash Consideration received by the Company or such Restricted Subsidiary in such Asset Sale having an aggregate fair market value, as determined by the Company, taken together with all other Designated Non-cash Consideration received pursuant to this clause (E) that is at that time outstanding, not to exceed the greater of $225.0 million and 30.0% of LTM EBITDA for the most recently ended Test Period at the time of the receipt of |US-DOCS\143900591.2|| such Designated Non-cash Consideration (with the fair market value of each such item of Designated Non-cash Consideration being measured pursuant to this clause (E) at the Company’s option, either at the time of contractually agreeing to such Asset Sale or at the time received and, in either case, without giving effect to subsequent changes in value); and
(F) any Investment, Capital Stock, assets, property or capital or other expenditure of the kind referred to in clauses (2) or (3) of Section 4.10(b) hereof shall be deemed to be Cash Equivalents for purposes of this provision and for no other purpose.
(b) provision. Within 540 180 days after the receipt of any Net Proceeds of any from an Asset Sale (the “Proceeds Application Period”)subject to this covenant, the Company or such Restricted Subsidiary, at their option, may apply an amount equal to the Net Proceeds from such Asset Sale,
(1) to reduce, prepay, repay or purchase:
(A) to the extent such Net Proceeds are from an Asset Sale of Collateral, Obligations with Pari Passu Lien Priority (including the Senior Credit Facilities or any Refinancing Indebtedness in respect thereof but other than Indebtedness owed to the Company or any Restricted Subsidiary), and, in the case of revolving obligations, to correspondingly reduce commitments with respect thereto, provided that, to the extent either Issuer or any Restricted Subsidiary will so repay any such Indebtedness (other than the Notes), the Issuers shall reduce Obligations under the Notes on a pro rata basis by, at their option, (i) redeeming Notes as provided under Section 3.07 hereof (ii) purchasing Notes through open-market purchases or (iii) by making an offer (in accordance with the procedures set forth herein for an Asset Sale Offer) to all Holders to purchase their Notes at a purchase price equal to 100.0% of the principal amount thereof, plus the amount of accrued but unpaid interest, if any, on the principal amount of the Notes to be repurchased to the date of repurchase;
(B) to the extent such Net Proceeds resulted from an Asset Sale not consisting of Collateral, Obligations in respect of other Secured Indebtedness (which may include the Notes), and, in the case of revolving commitments, to correspondingly reduce commitments with respect thereto;
(C) Obligations in respect of the Notes or any other Indebtedness (other than Subordinated Indebtedness) of the Company or any Restricted Subsidiary, other than Indebtedness owed to the Company or any Restricted Subsidiary (and, in the case of revolving commitments, to correspondingly reduce commitments with respect thereto), provided that, to the extent either Issuer or any Restricted Subsidiary will so repay any such Indebtedness (other than the Notes), the Issuers will reduce Obligations under the Notes on a pro rata basis by, at their option, (i) redeeming Notes as provided under Section 3.07 hereof or (ii) by making an offer (in accordance with the procedures set forth herein for an Asset Sale Offer) to all Holders to purchase their Notes at a purchase price equal to 100.0% of the principal amount thereof, plus the amount of accrued but unpaid interest, if any, on the principal amount of the Notes to be repurchased to the date of repurchase; or |US-DOCS\143900591.2||
(D) Obligations in respect of Indebtedness of a Non-Guarantor Subsidiary, other than Indebtedness owed to the Company or another Restricted Subsidiary; provided, in the case of clauses (A) or (C) above, (i) if an offer to purchase any Indebtedness of the Company or any Restricted Subsidiary is made, such amount will be deemed repaid to the extent of the amount of such offer, whether or not accepted by the holders of such Indebtedness, and no Net Proceeds in the amount of such offer will be deemed to exist following such offer, and (ii) if the holder of any Indebtedness of a Restricted Subsidiary of the Company declines the repayment of such Indebtedness owed to it from such Net Proceeds such amount will be deemed repaid to the extent of the declined Net Proceeds, or
(2) 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 that results in the Company or any Restricted Subsidiary, as the case may be, owning may apply an amount equal to 100% of such Net Proceeds to (i) an Investment (other than in Receivables that, at the time of purchase, are not Eligible Receivables), or (ii) the purchase of Receivables that are, at the time of purchase, Eligible Receivables, or (iii) the purchase of Servicing Rights which are eligible for collateral under any Warehouse Facility, or (iv) the making of any capital expenditure, or (v) the acquisition of any other tangible assets, in each case, in or with respect to a Permitted Business. Pending the final application of any such Net Proceeds, the Company or such Restricted Subsidiary may temporarily reduce outstanding Indebtedness or otherwise invest such Net Proceeds in any manner not prohibited by this Indenture. Any Net Proceeds from Asset Sales not applied or invested as provided in the preceding sentence of this paragraph will be deemed to constitute "Excess Proceeds." When the aggregate amount of Excess Proceeds exceeds $5 million, Company shall make an offer to all Holders of the Notes (an "Asset Sale Offer") to purchase the maximum principal amount of the Capital Stock Notes 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 thereon to the date of purchase, in accordance with the procedures set forth in this Indenture. Notwithstanding the foregoing, the Company shall not, and shall not permit any of its Restricted Subsidiaries to, directly or indirectly sell or otherwise convey or dispose of any Residual Receivables or interest therein for consideration of which less than 85% is in the form of Cash Equivalents, unless: (i) from and after the Issue Date, upon the creation of any Senior Residual Receivables by the Company or any Restricted Subsidiary, the Company shall designate, by an Officers' Certificate delivered to the Trustee, Senior Residual Receivables with an aggregate book value equal to 25% of the book value of the Senior Residual Receivables so created as Retained Residual Receivables ("Retained Residual Receivables") and no such designation shall have been revoked except as provided below; (ii) none of the Residual Receivables sold, conveyed or otherwise disposed of constitute Retained Residual Receivables unless after giving effect to such sale, conveyance or other disposition the aggregate amount of Senior Residual Receivables of the Company and its Restricted Subsidiaries which are unencumbered by any Lien (of which no more than 25% of the aggregate book value thereof shall constitute Retained Residual Receivables) would be greater than or equal to 250% of all Senior Indebtedness of the Company and its Restricted Subsidiaries; and (iii) after giving effect to any such sale, conveyance or other disposition of Residual Receivables the aggregate amount of Senior Residual Receivables of the Company and its Restricted Subsidiaries which are unencumbered by any Lien (of which not more than 25% of the aggregate book value thereof shall constitute Retained Residual Receivables) would be greater than or equal to 150% of all Senior Indebtedness of the Company and its Restricted Subsidiaries. From time to time, the Company may revoke the designation of any Senior Residual Receivable as a Retained Residual Receivable if the Company simultaneously designates as Retained Residual Receivables (in addition to any other such designation otherwise required by this Indenture) Senior Residual Receivables (not subject to any Lien) with an aggregate book value equal to or greater than that of the Senior Residual Receivables as to which such designation has been revoked. Any determination of the amount of Residual Receivables shall be based on the consolidated balance sheet of the Company and its Restricted Subsidiaries for the most recently ended fiscal quarter for which financial statements are available, after giving pro forma effect to the Asset Sale for which such determination is being made and to any other sale of or Lien on or reduction of Residual Receivables since the date of such business such balance sheet. To the extent that such business constitutes a Restricted Subsidiary or increases the Company’s direct or indirect percentage ownership aggregate amount of the Capital Stock of a Notes tendered pursuant to an Asset Sale Offer is less than the Excess Proceeds, the Company or the Restricted Subsidiary;, as the case may be, may use any remaining Excess Proceeds for general corporate purposes. If the aggregate principal amount of the Notes surrendered by Holders thereof exceeds the amount of Excess Proceeds, the Trustee shall select the Notes to be purchased on a pro rata basis. Upon completion of such Asset Sale Offer, the amount of Excess Proceeds shall be reset at zero.
Appears in 1 contract
Sources: Indenture (Matrix Capital Corp /Co/)
Asset Sales. (a) From and after the Completion Date, the The Company shall not consummatenot, and shall not permit any of its Restricted Subsidiaries to to, consummate, directly or indirectly, an Asset Sale, Sale (including (x) the sale or issuance of Equity Interests in a Restricted Subsidiary and (y) any Sale Leaseback) unless:
(1) the Company or such Restricted Subsidiary, as the case may be, receives consideration at the time of such Asset Sale at least equal to the fair market value (as determined in good faith by the Company at the time of contractually agreeing to such Asset Sale) of the assets sold or otherwise disposed ofis made for Fair Market Value; and
(2) except in the case of a Permitted Asset Swap, if a Sale Leaseback or the property or assets sold or otherwise disposed Disposition of have a fair market value Multiplex theatre, in any such Asset Sale with a purchase price in excess of the greater of (x) $375.0 million 50,000,000 and 50.0(y) 5% of LTM Consolidated EBITDA for the most recently ended Test Period at the time of such dispositionPeriod, at least 75.075% of the consideration therefor for such Asset Sale, together with all other Asset Sales completed or contractually agreed upon since the Issue Date, received by the Company or such Restricted Subsidiary, as the case may be, Subsidiary is in the form of cash or Cash Equivalents.
(b) Within 450 days after receipt of any Net Proceeds from any Asset Sale (the “Asset Sale Proceeds Application Period”), the Company or such Restricted Subsidiary, at its option, may apply an amount equal to the Net Proceeds from such Asset Sale (the “Applicable Proceeds”),
(1) to the extent the assets or property disposed of in the Asset Sale constituted Collateral, to repay (i) Obligations under the Senior Credit Facilities, (ii) Obligations under the Existing First Lien Notes, (iii) Obligations under the Additional Silver Lake First Lien Notes, (iv) Obligations under the Convertible Notes or (v) any Additional First Lien Obligations and in each case, in the case of revolving obligations, to correspondingly reduce commitments with respect thereto provided that the Company or such Restricted Subsidiary will reduce the aggregate principal amount of Obligations under the Notes on a ratable basis with any such First Lien Obligations repaid pursuant to this Section 4.16(b)(1) by redeeming Notes as provided under Section 3.08.
(2) to the extent the assets or property disposed of in the Asset Sale did not constitute Collateral:
(i) to repay (w) Obligations under the Senior Credit Facilities, (x) Obligations under the Existing First Lien Notes, (y) Obligations under the Additional Silver Lake First Lien Notes, or (z) any Additional First Lien Obligations and, in each case, in the case of revolving obligations, to correspondingly reduce commitments with respect thereto provided that the Company or such Restricted Subsidiary will reduce the aggregate principal amount of Obligations under the Notes on a ratable basis with any such First Lien Obligations repaid pursuant to this Section 4.16(b)(2)(i) by redeeming Notes as provided under Section 3.08; or
(ii) to repay Obligations under any Senior Indebtedness (other than any Senior Indebtedness referred to in clause (2)(i) above) and in each case, in the case of revolving obligations, to correspondingly reduce commitments with respect thereto; provided that the Company or such Restricted Subsidiary will reduce the aggregate principal amount ofof Obligations under the Notes on a ratable basis with any such Senior Indebtedness repaid pursuant to this Section 4.16(b)(2)(ii) by redeeming Notes as provided under Section 3.08; or
(3) to invest in the business of the Company and its Subsidiaries (including any acquisition or other Investment permitted under this Indenture); or
(4) any combination of the foregoing; provided that, in the case of clause (3) above, a binding commitment or letter of intent shall be treated as a permitted application of the Applicable Proceeds from the date of such commitment or letter of intent so long as the Company or such Restricted Subsidiary enters into such commitment or letter of intent with the good faith expectation that such Applicable Proceeds will be applied to satisfy such commitment or letter of intent within 180 days of the expiration of the Asset Sale Proceeds Application Period (an “Acceptable Commitment”) and such Applicable Proceeds are actually applied in such manner within 180 days of the expiration of the Asset Sale Proceeds Application Period (the period from the consummation of the Asset Sale to such date, the “Commitment Application Period”), and, in the event any Acceptable Commitment is later cancelled or terminated for any reason after the expiration of the Asset Sale Proceeds Application Period and before the Applicable Proceeds are applied in connection therewith, then such Applicable Proceeds shall constitute Excess Proceeds unless the Company or such Restricted Subsidiary reasonably expects to enter into another Acceptable Commitment prior to the expiration of the Asset Sale Proceeds Application Period and such Applicable Proceeds are actually applied in such manner prior to the expiration of the Commitment Application Period. To the extent Applicable Proceeds from an Asset Sale exceed amounts that are invested or applied as provided and within the time period set forth in Section 4.16(b), such excess amount will be deemed to constitute “Excess Proceeds”; provided that any amount of Applicable Proceeds offered to Holders of any Notes pursuant to clauses (1) or (2) above shall not be deemed to be Excess Proceeds without regard to whether such offer is accepted by any Holders.
(c) Notwithstanding the foregoing, in the event the Asset Sale consists of any interest in a European Subsidiary (or the assets thereof), (a) up to $150 million of the Applicable Proceeds (less (x) any Applicable Proceeds that have been applied under this clause (a) in any prior Asset Sale to which this paragraph (c) applies and (y) any Obligations of such European Subsidiary incurred pursuant to Section 4.05(b)(xv)) (the “Threshold”) may be used for the purposes described in Section 4.16(b)(3), (b) 80% of the Applicable Proceeds in excess of the Threshold (the “European Asset Sale Debt Repayment Amount”) must be used for the purposes described in Section 4.16(b)(1) or (b)(2), as applicable; provided, however, that the European Asset Sale Debt Repayment Amount that is to be used to repay the Notes must be applied in accordance with Section 3.08 and (c) 20% of the Applicable Proceeds in excess of the Threshold may be used in any combination of the foregoing. The Company or any Restricted Subsidiary must apply the European Asset Sale Debt Repayment Amount for the purposes described in Section 4.16(b)(1) or (b)(2) within 15 days of the receipt of Applicable Proceeds that result in the European Asset Sale Debt Repayment Amount (less any amounts that have previously been applied under clause (b) of the preceding sentence) to exceed $50.0 million (a “European Asset Sale Mandatory Redemption Event”).
(d) Except with respect to an Asset Sale that consists of any interest in a European Subsidiary (or the assets thereof) described in the immediately preceding paragraph, if at any time the aggregate amount of Excess Proceeds exceeds $100.0 million (an “Asset Sale Mandatory Redemption Event”), then the Company shall (a) redeem the maximum aggregate principal amount of Notes (as determined in accordance with clauses (1) and (2) above) in accordance with the procedures described under Section 3.08 and, (b) if required or permitted by the terms of any other First Lien Obligations (including the Existing First Lien Notes) and/or, to the extent that the assets or property disposed of in the Asset Sale were not Collateral, Indebtedness that is pari passu in right of payment with the Notes (“Pari Passu Indebtedness”), within 20 Business Days of such Asset Sale Mandatory Redemption Event, offer to purchase the maximum aggregate principal amount (or accreted value, as applicable) (as determined in accordance with clauses (1) and (2) above) of such First Lien Obligations and/or Pari Passu Indebtedness, as applicable, out of the amount of the Excess Proceeds (in the case of any First Lien Obligations and/or Pari Passu Indebtedness, if applicable, in accordance with the documents governing such First Lien Obligations and/or Pari Passu Indebtedness) to the Holders of such First Lien Obligations and/or Pari Passu Indebtedness, as applicable (an “Asset Sale Offer”). The Company may satisfy the foregoing obligation with respect to such Applicable Proceeds from an Asset Sale by making an Asset Sale Offer in advance of being required to do so by this Indenture (an “Advance Offer”) with respect to all or part of the available Applicable Proceeds (the “Advance Portion”).
(e) If the aggregate principal amount (or accreted value, as applicable) of Notes redeemed pursuant to Section 4.16(d) and any Additional Silver Lake First Lien Notes redeemed pursuant to a similar provision in the Additional Silver Lake First Lien Notes Indenture, together with, if applicable, First Lien Obligations and/or Pari Passu Indebtedness, tendered pursuant to an Asset Sale Offer is less than the Excess Proceeds (or, in the case of an Advance Offer, the Advance Portion), the Company may use any remaining Excess Proceeds (or, in the case of an Advance Offer, the Advance Portion) in any manner not prohibited by this Indenture. Upon completion of any such Asset Sale Offer, the amount of Excess Proceeds shall be reset at zero (regardless of whether there are any remaining Excess Proceeds upon such completion), and in the case of an Advance Offer, the Advance Portion shall be excluded in subsequent calculations of Excess Proceeds.
(f) Pending the final application of an amount equal to the Applicable Proceeds pursuant to this Section 4.16, the Holder of such Applicable Proceeds may apply any Applicable Proceeds temporarily to reduce Indebtedness outstanding under a revolving credit facility (including under the Senior Credit Facilities) or otherwise invest such Applicable Proceeds in any manner not prohibited by this Indenture. For the avoidance of doubt, the Company may apply any Retained Declined Proceeds in any manner not prohibited by this Indenture and such Retained Declined Proceeds shall in no event and under no circumstances constitute Excess Proceeds.
(g) Notwithstanding anything in this Indenture to the contrary, (i) to the extent that any of or all the Applicable Proceeds received by a Foreign Subsidiary are prohibited or delayed under any Requirements of Law from being repatriated to the Company, the portion of such Applicable Proceeds so affected will not be required to be applied in compliance with this Section 4.16 and shall not constitute Excess Proceeds and may be retained by the applicable Foreign Subsidiary so long, but only so long, as the applicable Requirement of Law will not permit repatriation to the Company (the Company hereby agreeing to cause the applicable Foreign Subsidiary to promptly take all actions reasonably required by the applicable Requirement of Law to permit such repatriation), and once such repatriation of any of such affected Net Proceeds is permitted under the applicable Requirement of Law, such repatriation will be promptly effected and such repatriated Applicable Proceeds will be promptly applied (net of additional taxes payable or reserved against as a result thereof) in compliance with this Section 4.16, and (ii) to the extent that and for so long as the Company has determined in good faith that repatriation of any of or all the Applicable Proceeds would have a material adverse tax consequence (taking into account any foreign tax credit or benefit actually realized in connection with such repatriation), the Applicable Proceeds so affected will not be required to be applied in compliance with this Section 4.16 and shall not constitute Excess Proceeds and may be retained by the applicable Foreign Subsidiary; provided that when the Company determines in good faith that repatriation of any of or all the Applicable Proceeds received by a Foreign Subsidiary would no longer have a material adverse tax consequence (taking into account any foreign tax credit or benefit actually realized in connection with such repatriation), such Applicable Proceeds shall be promptly applied (net of additional taxes payable or reserved against as a result thereof) in compliance with this Section 4.16.
(h) For purposes of clause (a)(2) of this Section 4.16 (and no other provision), the following shall be deemed to be cash or Cash Equivalents:
(A1) the greater of the principal amount and carrying value of any liabilitiesliabilities (as reflected on the most recent balance sheet of the Company (or a Parent Entity) provided hereunder or in the footnotes thereto), contingent or otherwiseif incurred, accrued or increased subsequent to the date of such balance sheet, such liabilities that would have been reflected on the balance sheet of the Company (or Parent Entity) or in the footnotes thereto if such incurrence, accrual or increase had taken place on or prior to the date of such balance sheet, as determined in good faith by the Company) of the Company or such Restricted Subsidiary, other than liabilities that are by their terms subordinated to the Secured Notes or Obligations, that are owed to the Company or a Restricted Subsidiary that (x) are assumed by the transferee of any such assets (or a third party in connection with such transfer) or (y) are otherwise cancelled or terminated extinguished in connection with the transaction with transactions relating to such transferee (other than intercompany debt owed Asset Sale) pursuant to a written agreement which releases the Company or its such Restricted Subsidiaries) and, in each case, for which the Company and all of its Restricted Subsidiaries have been validly released,Subsidiary from such liabilities;
(B2) any securities, notes or other obligations or assets securities received by the Company or such Restricted Subsidiary from such transferee that are converted by the Company or such Restricted Subsidiary into cash or Cash Equivalents (to the extent of the cash or Cash Equivalents received) within 180 days following the closing of such the applicable Asset Sale;; and
(C) Indebtedness of any Restricted Subsidiary that ceases to be a Restricted Subsidiary as a result of such Asset Sale (other than intercompany debt owed to the Company or any Restricted Subsidiary), to the extent that the Company and each other Restricted Subsidiary are released from any guarantee of payment of the principal amount of such Indebtedness in connection with such Asset Sale in accordance with the terms of this Indenture;
(D) consideration consisting of Indebtedness of the Issuers or a Guarantor (other than intercompany debt owed to the Company or any Restricted Subsidiary and other than Subordinated Indebtedness) received after the Issue Date from Persons who are not the Company, Holdings or any Restricted Subsidiary;
(E3) any Designated Non-cash Cash Consideration received by the Company or such Restricted Subsidiary in respect of such Asset Sale having an aggregate fair market value, as determined by the CompanyFair Market Value, taken together with all other Designated Non-cash Cash Consideration received pursuant to this clause (E3) that is at that time outstanding, not to exceed in excess (at the greater time of $225.0 million and 30.0receipt of such Designated Non-Cash Consideration) of 5% of LTM EBITDA Consolidated Total Assets for the most recently ended Test Period at as of the time of the receipt of |US-DOCS\143900591.2|| such Designated Non-cash Consideration (Cash Consideration, with the fair market value Fair Market Value of each such item of Designated Non-cash Cash Consideration being measured pursuant to this clause (E) at the Company’s option, either at the time of contractually agreeing to such Asset Sale or at the time received and, in either case, and without giving effect to subsequent changes in value); and
(F) any Investment, Capital Stock, assets, property or capital or other expenditure of the kind referred to in clauses (2) or (3) of Section 4.10(b) hereof shall be deemed to be Cash Equivalents for purposes of this provision and for no other purpose.
(bi) Within 540 days after the receipt The provisions of any Net Proceeds of any Asset Sale (the “Proceeds Application Period”), the Company or such Restricted Subsidiary, at their option, may apply an amount equal this Indenture relating to the Net Proceeds from such Asset Sale,
(1) Company’s obligation to reduce, prepay, repay or purchase:
(A) to redeem the extent such Net Proceeds are from Notes as a result of an Asset Sale of Collateral, Obligations with Pari Passu Lien Priority (including the Senior Credit Facilities may be waived or modified at any Refinancing Indebtedness in respect thereof but other than Indebtedness owed to the Company or any Restricted Subsidiary), and, in the case of revolving obligations, to correspondingly reduce commitments with respect thereto, provided that, to the extent either Issuer or any Restricted Subsidiary will so repay any such Indebtedness (other than the Notes), the Issuers shall reduce Obligations under the Notes on a pro rata basis by, at their option, (i) redeeming Notes as provided under Section 3.07 hereof (ii) purchasing Notes through open-market purchases or (iii) by making an offer (in accordance time with the procedures set forth herein for an Asset Sale Offer) to all Holders to purchase their Notes at a purchase price equal to 100.0% written consent of the principal amount thereof, plus the amount Holders of accrued but unpaid interest, if any, on the a majority in aggregate principal amount of the Notes to be repurchased to the date of repurchase;
(B) to the extent such Net Proceeds resulted from an Asset Sale not consisting of Collateral, Obligations in respect of other Secured Indebtedness (which may include the Notes), and, in the case of revolving commitments, to correspondingly reduce commitments with respect thereto;
(C) Obligations in respect of the Notes or any other Indebtedness (other than Subordinated Indebtedness) of the Company or any Restricted Subsidiary, other than Indebtedness owed to the Company or any Restricted Subsidiary (and, in the case of revolving commitments, to correspondingly reduce commitments with respect thereto), provided that, to the extent either Issuer or any Restricted Subsidiary will so repay any such Indebtedness (other than the Notes), the Issuers will reduce Obligations under the Notes on a pro rata basis by, at their option, (i) redeeming Notes as provided under Section 3.07 hereof or (ii) by making an offer (in accordance with the procedures set forth herein for an Asset Sale Offer) to all Holders to purchase their Notes at a purchase price equal to 100.0% of the principal amount thereof, plus the amount of accrued but unpaid interest, if any, on the principal amount of the Notes to be repurchased to the date of repurchase; or |US-DOCS\143900591.2||
(D) Obligations in respect of Indebtedness of a Non-Guarantor Subsidiary, other than Indebtedness owed to the Company or another Restricted Subsidiary; provided, in the case of clauses (A) or (C) above, (i) if an offer to purchase any Indebtedness of the Company or any Restricted Subsidiary is made, such amount will be deemed repaid to the extent of the amount of such offer, whether or not accepted by the holders of such Indebtedness, and no Net Proceeds in the amount of such offer will be deemed to exist following such offer, and (ii) if the holder of any Indebtedness of a Restricted Subsidiary of the Company declines the repayment of such Indebtedness owed to it from such Net Proceeds such amount will be deemed repaid to the extent of the declined Net Proceeds, or
(2) 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 that results in the Company or any Restricted Subsidiary, as the case may be, owning an amount of the Capital Stock of such business such that such business constitutes a Restricted Subsidiary or increases the Company’s direct or indirect percentage ownership of the Capital Stock of a Restricted Subsidiary;then outstanding.
Appears in 1 contract
Asset Sales. (a) From and after the Completion Date, the The Company shall not consummatenot, and shall not permit any of its Restricted Subsidiaries to consummateto, consummate an Asset Sale, unless:
Sale unless (1i) the Company (or such the Restricted Subsidiary, as the case may be, ) receives consideration at the time of such Asset Sale at least equal to the fair market value (as determined in good faith by the Company at (evidenced by a resolution of the time Board of contractually agreeing Directors set forth in an Officers' Certificate delivered to such the Trustee with respect to any Asset SaleSale determined to have a value greater than $25.0 million) of the assets or Equity Interests issued or sold or otherwise disposed of; and
of and (2ii) except in the case of a Permitted Asset Swap, if the property or assets sold or otherwise disposed of have a fair market value in excess of the greater of $375.0 million and 50.0% of LTM EBITDA Assets Held for the most recently ended Test Period at the time of such dispositionSale, at least 75.075% of the consideration therefor received by the Company or such Restricted Subsidiary, as the case may be, Subsidiary is in the form of cash cash, Cash Equivalents or Cash EquivalentsMarketable Securities; provided that the amount of:
following amounts shall be deemed to be cash: (Aw) any liabilities, contingent liabilities (as shown on the Company's or otherwisesuch Restricted Subsidiary's most recent balance sheet), of the Company or such any Restricted Subsidiary, Subsidiary (other than contingent liabilities and liabilities that are by their terms subordinated to the Notes or any guarantee thereof) that are owed to the Company or a Restricted Subsidiary that (x) are assumed by the transferee of any such assets (or pursuant to a third party in connection with such transfer) or (y) are otherwise cancelled or terminated in connection with the transaction with such transferee (other than intercompany debt owed to customary novation agreement that releases the Company or its such Restricted Subsidiaries) andSubsidiary from further liability, in each case, for which the Company and all of its Restricted Subsidiaries have been validly released,
(Bx) any securities, notes or other obligations or assets received by the Company or any such Restricted Subsidiary from such transferee that are contemporaneously (subject to ordinary settlement periods) converted by the Company or such Restricted Subsidiary into cash or Cash Equivalents (to the extent of the cash or Cash Equivalents received) within 180 days following the closing of such Asset Sale;
(C) Indebtedness of any Restricted Subsidiary that ceases to be a Restricted Subsidiary as a result of such Asset Sale (other than intercompany debt owed to the Company or any Restricted Subsidiary), to the extent that the Company and each other Restricted Subsidiary are released from any guarantee of payment of the principal amount of such Indebtedness in connection with such Asset Sale in accordance with the terms of this Indenture;
(D) consideration consisting of Indebtedness of the Issuers or a Guarantor (other than intercompany debt owed to the Company or any Restricted Subsidiary and other than Subordinated Indebtedness) received after the Issue Date from Persons who are not the Company, Holdings or any Restricted Subsidiary;
(Ey) any Designated Non-cash Noncash Consideration received by the Company or such any of its Restricted Subsidiary Subsidiaries in such Asset Sale having an Sale; provided that the aggregate fair market value, value (as determined by the Companyabove) of such Designated Noncash Consideration, taken together with the fair market value at the time of receipt of all other Designated Non-cash Noncash Consideration received pursuant to this clause (Ey) that less the amount of Net Proceeds previously realized in cash from prior Designated Noncash Consideration is at that time outstanding, not to exceed the greater of $225.0 million and 30.0less than 5% of LTM EBITDA for the most recently ended Test Period Total Assets at the time of the receipt of |US-DOCS\143900591.2|| such Designated Non-cash Noncash Consideration (with the fair market value of each such item of Designated Non-cash Noncash Consideration being measured pursuant to this clause (E) at the Company’s option, either at the time of contractually agreeing to such Asset Sale or at the time received and, in either case, and without giving effect to subsequent changes in value); and
) and (Fz) any Investment, Capital Stock, assets, property or capital or other expenditure Additional Assets received in an exchange of the kind referred to in clauses (2) or (3) of Section 4.10(b) hereof shall be deemed to be Cash Equivalents for purposes of this provision and for no other purpose.
(b) assets transaction. Within 540 360 days after the receipt of any cash Net Proceeds of any from an Asset Sale (the “Proceeds Application Period”)Sale, the Company or such Restricted Subsidiary, at their its option, may apply an amount equal to the such cash Net Proceeds from such Asset Sale,
(1) to reduce, prepay, repay or purchase:
(A) to the extent such Net Proceeds are from an Asset Sale of Collateral, Obligations with Pari Passu Lien Priority (including the Senior Credit Facilities or any Refinancing Indebtedness in respect thereof but other than Indebtedness owed to the Company or any Restricted Subsidiary), and, in the case of revolving obligations, to correspondingly reduce commitments with respect thereto, provided that, to the extent either Issuer or any Restricted Subsidiary will so repay any such Indebtedness (other than the Notes), the Issuers shall reduce Obligations under the Notes on a pro rata basis byProceeds, at their its option, (i) redeeming Notes as provided under Section 3.07 hereof (ii) purchasing Notes through open-market purchases or (iii) by making an offer (in accordance with the procedures set forth herein for an Asset Sale Offera) to all Holders to purchase their Notes at a purchase price equal to 100.0% of the principal amount thereof, plus the amount of accrued but unpaid interest, if any, on the principal amount of the Notes to be repurchased to the date of repurchase;
(B) to the extent such Net Proceeds resulted from an Asset Sale not consisting of Collateral, Obligations in respect of other Secured Indebtedness (which may include the Notes), and, in the case of revolving commitments, to correspondingly reduce commitments with respect thereto;
(C) Obligations in respect of the Notes or any other Indebtedness (other than Subordinated Indebtedness) of the Company or any Restricted Subsidiary, other than Indebtedness owed to the Company or any Restricted Subsidiary (and, in the case of revolving commitments, to correspondingly reduce commitments with respect thereto), provided that, to the extent either Issuer or any Restricted Subsidiary will so repay any such Indebtedness (other than the Notes), the Issuers will reduce Obligations under the Notes on a pro rata basis by, at their option, (i) redeeming Notes as provided under Section 3.07 hereof or (ii) by making an offer (in accordance with the procedures set forth herein for an Asset Sale Offer) to all Holders to purchase their Notes at a purchase price equal to 100.0% of the principal amount thereof, plus the amount of accrued but unpaid interest, if any, on the principal amount of the Notes to be repurchased to the date of repurchase; or |US-DOCS\143900591.2||
(D) Obligations in respect of Indebtedness of a Non-Guarantor Subsidiary, other than Indebtedness owed to the Company or another Restricted Subsidiary; provided, in the case of clauses (A) or (C) above, (i) if an offer to purchase any Indebtedness of the Company or any Restricted Subsidiary that is madenot subordinated in right of payment to the Notes or to repay debt under one or more Credit Facilities and, if such debt is revolving debt, to effect a corresponding commitment reduction thereunder, (b) to the acquisition of all or a portion of the assets of, or a majority of the Voting Stock of, another Permitted Business, the making of a capital expenditure or the acquisition of other assets or Investments that are used or useful in a Permitted Business or (c) to an Investment in Additional Assets. Any cash Net Proceeds from Asset Sales that are not applied or invested as provided in the first sentence of this paragraph shall be deemed to constitute "Excess Proceeds." When the aggregate amount of Excess Proceeds exceeds $15.0 million, the Company will be deemed repaid required to make an offer to all Holders of Notes and all holders of other Indebtedness that ranks 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 (an "Asset Sale Offer") to purchase the maximum principal amount of Notes and such other Indebtedness 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 Liquidated Damages thereon, if any, to the date of purchase, in accordance with the procedures set forth in this Indenture 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 and such other Indebtedness tendered into such Asset Sale Offer surrendered by Holders thereof exceeds the amount of Excess Proceeds, the Trustee shall select the Notes and such offer, whether or not accepted by the holders other Indebtedness to be purchased on a pro rata basis. Upon completion of such Indebtednessoffer to purchase, and no Net Proceeds in the amount of such offer will Excess Proceeds shall be deemed to exist following such offer, and (ii) if the holder of any Indebtedness of a Restricted Subsidiary of the Company declines the repayment of such Indebtedness owed to it from such Net Proceeds such amount will be deemed repaid to the extent of the declined Net Proceeds, or
(2) 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 that results in the Company or any Restricted Subsidiary, as the case may be, owning an amount of the Capital Stock of such business such that such business constitutes a Restricted Subsidiary or increases the Company’s direct or indirect percentage ownership of the Capital Stock of a Restricted Subsidiary;reset at zero.
Appears in 1 contract
Sources: Indenture (Appalachian Realty Co)
Asset Sales. (a) From and after the Completion Date, the The Company shall not consummatewill not, and shall will not permit any of its Restricted Subsidiaries to consummateto, consummate an Asset Sale, Sale unless:
(1) the Company (or such 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 (as determined in good faith by the Company at the time of contractually agreeing to such Asset Sale) Fair Market Value of the Equity Interests or other assets issued or sold or otherwise disposed of; and
(2) except in the case of a Permitted Asset Swap, if the property or assets sold or otherwise disposed of have a fair market value in excess of the greater of $375.0 million and 50.0% of LTM EBITDA for the most recently ended Test Period at the time of such disposition, (a) at least 75.075% of the consideration therefor received in the Asset Sale by the Company or such Restricted Subsidiary, as the case may be, Subsidiary is in the form of cash or Cash Equivalents; provided that (b) the amount ofFair Market Value of all forms of consideration other than cash received for all Asset Sales since the Issue Date does not exceed in the aggregate 10% of the Adjusted Consolidated Net Tangible Assets of the Company at the time each determination is made. For purposes of this provision, each of the following shall be deemed to be cash:
(A) any liabilities, contingent or otherwiseas shown on the Company’s most recent consolidated balance sheet, of the Company or such any Restricted Subsidiary, Subsidiary (other than contingent liabilities and Subordinated Obligations) that are by their terms subordinated to the Notes or that are owed to the Company or a Restricted Subsidiary that (x) are assumed by the transferee of any such assets (or pursuant to a third party in connection with such transfer) or (y) are otherwise cancelled or terminated in connection with the transaction with such transferee (other than intercompany debt owed to customary novation agreement that releases the Company or its such Restricted Subsidiaries) and, in each case, for which the Company and all of its Restricted Subsidiaries have been validly released,Subsidiary from further liability;
(B) any securities, notes or other obligations or assets received by the Company or any such Restricted Subsidiary from such transferee that are converted by the Company or such Restricted Subsidiary into cash or Cash Equivalents (within 180 days after the date of the Asset Sale, to the extent of the cash or Cash Equivalents received) within 180 days following the closing of such Asset Salereceived in that conversion;
(C) Indebtedness of any Restricted Subsidiary that ceases to be a Restricted Subsidiary as a result of such Asset Sale (other than intercompany debt owed to the Company stock or any Restricted Subsidiary), to the extent that the Company and each other Restricted Subsidiary are released from any guarantee of payment of the principal amount of such Indebtedness in connection with such Asset Sale in accordance with the terms of this Indenture;
(D) consideration consisting of Indebtedness of the Issuers or a Guarantor (other than intercompany debt owed to the Company or any Restricted Subsidiary and other than Subordinated Indebtedness) received after the Issue Date from Persons who are not the Company, Holdings or any Restricted Subsidiary;
(E) any Designated Non-cash Consideration received by the Company or such Restricted Subsidiary in such Asset Sale having an aggregate fair market value, as determined by the Company, taken together with all other Designated Non-cash Consideration received pursuant to this clause (E) that is at that time outstanding, not to exceed the greater of $225.0 million and 30.0% of LTM EBITDA for the most recently ended Test Period at the time of the receipt of |US-DOCS\143900591.2|| such Designated Non-cash Consideration (with the fair market value of each such item of Designated Non-cash Consideration being measured pursuant to this clause (E) at the Company’s option, either at the time of contractually agreeing to such Asset Sale or at the time received and, in either case, without giving effect to subsequent changes in value); and
(F) any Investment, Capital Stock, assets, property or capital or other expenditure assets of the kind referred to in clauses (2) or (3) of Section 4.10(b) hereof shall be deemed to be Cash Equivalents for purposes the next paragraph of this provision and for no other purpose.
(b) Within 540 days after the receipt of any Net Proceeds of any Asset Sale (the “Proceeds Application Period”), the Company or such Restricted Subsidiary, at their option, may apply an amount equal to the Net Proceeds from such Asset Sale,
(1) to reduce, prepay, repay or purchase:
(A) to the extent such Net Proceeds are from an Asset Sale of Collateral, Obligations with Pari Passu Lien Priority (including the Senior Credit Facilities or any Refinancing Indebtedness in respect thereof but other than Indebtedness owed to the Company or any Restricted Subsidiary), Section 4.10; and, in the case of revolving obligations, to correspondingly reduce commitments with respect thereto, provided that, to the extent either Issuer or any Restricted Subsidiary will so repay any such Indebtedness (other than the Notes), the Issuers shall reduce Obligations under the Notes on a pro rata basis by, at their option, (i) redeeming Notes as provided under Section 3.07 hereof (ii) purchasing Notes through open-market purchases or (iii) by making an offer (in accordance with the procedures set forth herein for an Asset Sale Offer) to all Holders to purchase their Notes at a purchase price equal to 100.0% of the principal amount thereof, plus the amount of accrued but unpaid interest, if any, on the principal amount of the Notes to be repurchased to the date of repurchase;
(B) to the extent such Net Proceeds resulted from an Asset Sale not consisting of Collateral, Obligations in respect of other Secured Indebtedness (which may include the Notes), and, in the case of revolving commitments, to correspondingly reduce commitments with respect thereto;
(C) Obligations in respect of the Notes or any other Indebtedness (other than Subordinated Indebtedness) of the Company or any Restricted Subsidiary, other than Indebtedness owed to the Company or any Restricted Subsidiary (and, in the case of revolving commitments, to correspondingly reduce commitments with respect thereto), provided that, to the extent either Issuer or any Restricted Subsidiary will so repay any such Indebtedness (other than the Notes), the Issuers will reduce Obligations under the Notes on a pro rata basis by, at their option, (i) redeeming Notes as provided under Section 3.07 hereof or (ii) by making an offer (in accordance with the procedures set forth herein for an Asset Sale Offer) to all Holders to purchase their Notes at a purchase price equal to 100.0% of the principal amount thereof, plus the amount of accrued but unpaid interest, if any, on the principal amount of the Notes to be repurchased to the date of repurchase; or |US-DOCS\143900591.2||
(D) Obligations in respect of Indebtedness accounts receivable of a Non-Guarantor Subsidiary, other than Indebtedness owed to the Company or another Restricted Subsidiary; provided, in the case of clauses (A) or (C) above, (i) if an offer to purchase any Indebtedness of the Company or any Restricted Subsidiary is made, such amount will be deemed repaid to the extent of the amount of such offer, whether or not accepted business retained by the holders of such Indebtedness, and no Net Proceeds in the amount of such offer will be deemed to exist following such offer, and (ii) if the holder of any Indebtedness of a Restricted Subsidiary of the Company declines the repayment of such Indebtedness owed to it from such Net Proceeds such amount will be deemed repaid to the extent of the declined Net Proceeds, or
(2) 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 that results in the Company or any Restricted Subsidiary, as the case may be, owning an amount following the sale of such business; provided that such accounts receivable are not (i) past due more than 90 days and (ii) do not have a payment date greater than 120 days from the date of the Capital Stock invoice creating such accounts receivable.
(b) Within 360 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 the actions described in clause (2) or (3) below, within 540 days after the receipt of any Net Proceeds from an Asset Sale, the Company (or the applicable Restricted Subsidiary, as the case may be) may apply such business such that such business constitutes a Restricted Subsidiary Net Proceeds:
(1) to repay, prepay, redeem or increases repurchase Senior Debt;
(2) invest in Additional Assets;
(3) to make capital expenditures in respect of the Company’s direct or indirect percentage ownership its Restricted Subsidiaries’ Oil and Gas Business; or
(4) any combination of the Capital Stock foregoing. Pending the application of any Net Proceeds in the manner provided above, the Company or any Restricted Subsidiary may 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) will constitute “Excess Proceeds.” Within five days after the date that the aggregate amount of Excess Proceeds exceeds $20.0 million, the Company will make 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 or redeem with the proceeds of sales of assets in accordance with Section 3.09 hereof to purchase on a Restricted Subsidiary;pro rata basis 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 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 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 allocated for the purchase of Notes pursuant to the Asset Sale offer, the Trustee shall select the Notes to be purchased on a pro rata basis (or, in the case of Notes represented by a Global Note, the Trustee will select Notes for purchase by such method as DTC may require). Upon completion of each Asset Sale Offer, the amount of Excess Proceeds will be reset at zero.
(d) The Company will comply with the requirements of Rule 14e-1 under the Exchange Act and any other securities laws and regulations thereunder to the extent such laws and regulations are applicable in connection with each repurchase of Notes pursuant to 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 will comply with the applicable securities laws and regulations and 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
Sources: Indenture (W&t Offshore Inc)
Asset Sales. (a) From and after the Completion Date, the Company The Borrower shall not consummatenot, and shall not permit any of its Restricted Subsidiaries to consummateto, cause or make an Asset Sale, unless:
(1i) the Company Borrower or such any of its Restricted SubsidiarySubsidiaries, as the case may be, receives consideration at the time of such Asset Sale at least equal to the fair market value Fair Market Value (as determined in good faith by the Company at the time of contractually agreeing to such Asset SaleBorrower) of the assets sold or otherwise disposed of; and
(2ii) except in the case of a Permitted Asset Swap, if the property or assets sold or otherwise disposed of have a fair market value in excess of the greater of $375.0 million and 50.0% of LTM EBITDA for the most recently ended Test Period at the time of such disposition, at least 75.075% of the consideration therefor received by the Company Borrower or such Restricted Subsidiary, as the case may be, is in the form of cash cash, Cash Equivalents or Cash EquivalentsReplacement Assets; provided provided, however, that the amount of:
(A) any liabilities, contingent or otherwise, of liabilities (as shown on the Company Borrower’s or such Restricted Subsidiary, ’s most recent balance sheet or in the notes thereto) of the Borrower or such Restricted Subsidiary (other than liabilities that are by their terms subordinated to the Notes or Obligations) that are owed to the Company or a Restricted Subsidiary that (x) are assumed by the transferee of any such assets (or a third party in connection with Equity Interests pursuant to an agreement that releases or indemnifies the Borrower or such transfer) or (y) are otherwise cancelled or terminated in connection with Restricted Subsidiary, as the transaction with such transferee (other than intercompany debt owed to the Company or its Restricted Subsidiaries) andcase may be, in each case, for which the Company and all of its Restricted Subsidiaries have been validly released,from further liability;
(B) any securities, notes Loans or other obligations or other securities or assets received by the Company Borrower or such Restricted Subsidiary from such transferee that are converted by the Company Borrower 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) within 180 days following the closing of such Asset Sale;); and
(C) Indebtedness of any Restricted Subsidiary that ceases to be a Restricted Subsidiary as a result of such Asset Sale (other than intercompany debt owed to the Company or any Restricted Subsidiary), to the extent that the Company and each other Restricted Subsidiary are released from any guarantee of payment of the principal amount of such Indebtedness in connection with such Asset Sale in accordance with the terms of this Indenture;
(D) consideration consisting of Indebtedness of the Issuers or a Guarantor (other than intercompany debt owed to the Company or any Restricted Subsidiary and other than Subordinated Indebtedness) received after the Issue Date from Persons who are not the Company, Holdings or any Restricted Subsidiary;
(E) any Designated Non-cash Consideration received by the Company Borrower or such any of its Restricted Subsidiary Subsidiaries in such Asset Sale having an aggregate fair market value, as determined by the CompanyFair Market Value, taken together with all other Designated Non-cash Consideration received pursuant to this clause (EC) that is at that time outstanding, not to exceed the greater of (x) $225.0 90.0 million and 30.0(y) 3.00% of LTM EBITDA for the most recently ended Test Period Total Assets, at the time of the receipt of |US-DOCS\143900591.2|| such Designated Non-cash Consideration (with the fair market value Fair Market Value of each such item of Designated Non-cash Consideration being measured pursuant to this clause (E) at the Company’s option, either at the time of contractually agreeing to such Asset Sale or at the time received and, in either case, and without giving effect to subsequent changes in value); and
(F) any Investment, Capital Stock, assets, property or capital or other expenditure of the kind referred to in clauses (2) or (3) of Section 4.10(b) hereof shall each be deemed to be Cash Equivalents for the purposes of this provision and for no other purposeclause (ii).
(b) Within 540 365 days after the Borrower’s or any Restricted Subsidiary’s receipt of any the Net Cash Proceeds of any Asset Sale (the “Proceeds Application Period”)or Casualty Event, the Company Borrower or such Restricted Subsidiary, at their option, Subsidiary may apply an amount equal to the Net Cash Proceeds from such Asset Sale,Sale or Casualty Event, at its option: 141 Syniverse Second Lien Credit Agreement
(1) to reduce, prepay, repay or purchase:
(A) to the extent such Net Proceeds are from an Asset Sale of Collateral, Obligations with Pari Passu Lien Priority (including the Senior Credit Facilities or any Refinancing Indebtedness in respect thereof but other than Indebtedness owed to the Company or any Restricted Subsidiary), and, in the case of revolving obligations, to correspondingly reduce commitments with respect thereto, provided that, to the extent either Issuer or any Restricted Subsidiary will so repay any such Indebtedness (other than the Notes), the Issuers shall reduce Obligations under the Notes on a pro rata basis by, at their option, (i) redeeming Notes as provided under Section 3.07 hereof (ii) purchasing Notes through open-market purchases or (iii) by making an offer (in accordance with the procedures set forth herein for an Asset Sale Offer) to all Holders to purchase their Notes at a purchase price equal to 100.0% of the principal amount thereof, plus the amount of accrued but unpaid interest, if any, on the principal amount of the Notes to be repurchased to the date of repurchase;
(B) to the extent such Net Proceeds resulted from an Asset Sale not consisting of Collateral, Obligations in respect of other Secured Indebtedness (which may include the Notes), and, in the case of revolving commitments, to correspondingly reduce commitments with respect thereto;
(C) Obligations in respect of the Notes or any other Indebtedness (other than Subordinated Indebtedness) of the Company or any Restricted Subsidiary, other than Indebtedness owed to the Company or any Restricted Subsidiary (and, in the case of revolving commitments, to correspondingly reduce commitments with respect thereto), provided that, to the extent either Issuer or any Restricted Subsidiary will so repay any such Indebtedness (other than the Notes), the Issuers will reduce Obligations under the Notes on a pro rata basis by, at their option, (i) redeeming Notes as provided under Section 3.07 hereof or (ii) by making an offer (in accordance with the procedures set forth herein for an Asset Sale Offer) to all Holders to purchase their Notes at a purchase price equal to 100.0% of the principal amount thereof, plus the amount of accrued but unpaid interest, if any, on the principal amount of the Notes to be repurchased to the date of repurchase; or |US-DOCS\143900591.2||
(D) Obligations in respect of Indebtedness of a Non-Guarantor Subsidiary, other than Indebtedness owed to the Company or another Restricted Subsidiary; provided, in the case of clauses (A) or (C) above, (i) if an offer to purchase any Indebtedness of the Company or any Restricted Subsidiary is made, such amount will be deemed repaid to the extent of the amount of such offer, whether or not accepted by the holders of such Indebtedness, and no Net Proceeds in the amount of such offer will be deemed to exist following such offer, and (ii) if the holder of any Indebtedness of a Restricted Subsidiary of the Company declines the repayment of such Indebtedness owed to it from such Net Proceeds such amount will be deemed repaid to the extent of the declined Net Proceeds, or
(2) to make an Investment investment in (A) any one or more businesses, businesses (provided that if such Investment in any business investment is in the form of the acquisition of Capital Stock that Equity Interests of a Person, such acquisition results in the Company or any Restricted Subsidiary, as the case may be, owning an amount of the Capital Stock of such business such that such business constitutes Person becoming a Restricted Subsidiary or increases the Company’s direct or indirect percentage ownership of the Capital Stock Borrower), assets, or property or capital expenditures, in each case used or useful in a Similar Business;
(ii) to make an investment in any one or more businesses (provided that if such Investment is in the form of the acquisition of Equity Interests of a Person, such acquisition results in such Person becoming a Restricted Subsidiary of the Borrower), properties or assets that replace the properties and assets that are the subject of such Asset Sale or Casualty Event, as applicable;
(iii) to the extent the Borrower elects (or the Borrower or any of its Restricted Subsidiaries is required by the terms of the First Lien Facilities Documentation or any other Indebtedness of the Borrower or any of its Restricted Subsidiaries having Senior Lien Priority), to prepay, repay or purchase First Lien Loans or any other Indebtedness of the Borrower or any of its Restricted Subsidiaries having Senior Lien Priority or (in the case of letters of credit, bankers’ acceptances or other similar instruments) cash collateralize any such Indebtedness (in each case other than Indebtedness owed to the Borrower or a Restricted Subsidiary;); or
(iv) any combination of the foregoing; provided that the Borrower and its Restricted Subsidiaries shall be deemed to have complied with the provisions described in clauses (i) and (ii) of this Section 7.09(b) if and to the extent that, within 365 days after the Asset Sale or Casualty Event that generated the Net Cash Proceeds, the Borrower has entered into and not abandoned or rejected a binding agreement to make an investment in compliance with the provision described in clauses (i) and (ii) of this Section 7.09(b), and that investment 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 Borrower or such Restricted Subsidiary of the Borrower may temporarily reduce Indebtedness under a revolving credit facility, if any, or otherwise invest such Net Cash Proceeds in Cash Equivalents. Any Net Cash Proceeds from any Asset Sale or Casualty Event that are not applied as provided and within the time period set forth in Section 7.09(b) will be deemed to constitute “Excess Proceeds.” When the aggregate amount of Excess Proceeds exceeds $36.0 million, the Borrower shall prepay the Term Loans in accordance with Section 2.05(b)(ii) (and subject to Sections 2.05(b)(vii), 2.05(c) and 2.05(d)) and may, along with such prepayment of Term Loans (to the extent the Borrower or such Restricted Subsidiary elects, or is required by the terms thereof), purchase, redeem or repay any Additional Permitted Obligations (or any Permitted Refinancing Obligations or any Refinancing Indebtedness in respect of either of the foregoing) of the Borrower or a Restricted Subsidiary having Pari Passu Lien Priority, or any other Indebtedness having Pari Passu Lien Priority, pursuant to the agreements governing such other Indebtedness, on not more than a pro rata basis with respect to such prepayments of Term Loans (subject to each Lender’s option to decline to accept any prepayment pursuant to Section 2.05(c)).
Appears in 1 contract
Sources: Second Lien Credit Agreement (Syniverse Holdings Inc)
Asset Sales. (a) From and after the Completion Date, the Company shall not consummateFoamex will not, and shall will not permit any of its Restricted Subsidiaries to consummateto, consummate an Asset Sale, Sale unless:
(1) Foamex (or the Company or 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 (as determined in good faith by the Company at the time of contractually agreeing to such Asset Sale) of the assets or Equity Interests issued or sold or otherwise disposed of;
(2) the fair market value is determined by Foamex's Board of Directors and evidenced by a resolution of the Board of Directors set forth in an Officers' Certificate delivered to the Trustee; and
(23) except in the case of a Permitted Asset Swap, if the property or assets sold or otherwise disposed of have a fair market value in excess of the greater of $375.0 million and 50.0% of LTM EBITDA for the most recently ended Test Period at the time of such disposition, at least 75.080% of the consideration therefor received in the Asset Sale by the Company Foamex or such Restricted Subsidiary, as the case may be, Subsidiary is in the form of cash (A) cash, (B) assets useful in a Permitted Business not to exceed $30.0 million in the aggregate over the life of the Notes, or Cash Equivalents(C) Equity Interests representing a controlling interest in a Permitted Business not to exceed $30.0 million in the aggregate over the life of the Notes (collectively, the "Permitted Consideration"); provided that the amount ofthat:
(A) the amount of any liabilities, liabilities (as shown on Foamex's most recent consolidated balance sheet) of Foamex or any Restricted Subsidiary (other than contingent liabilities (except to the extent reflected (or otherwise, reserved for) on a balance sheet of Foamex or any Restricted Subsidiary as of the Company or date prior to the date of consummation of such Restricted Subsidiary, other than transaction) and liabilities that are by their terms subordinated in right of payment to the Notes or any Subsidiary Guarantee) that are owed to the Company or a Restricted Subsidiary that (x) are assumed by the transferee of any such assets (pursuant to an agreement that releases Foamex or a third party in connection with such transfer) or (y) are otherwise cancelled or terminated in connection with the transaction with such transferee (other than intercompany debt owed to the Company or its Restricted Subsidiaries) Subsidiary from further liability; and, in each case, for which the Company and all of its Restricted Subsidiaries have been validly released,
(B) any securities, notes or other obligations or assets received by the Company Foamex or any such Restricted Subsidiary from such transferee that that, in each case, are converted within 90 days by the Company Foamex or such Restricted Subsidiary into cash or Cash Equivalents Permitted Consideration (to the extent of the cash or Cash Equivalents so received) within 180 days following the closing of such Asset Sale;
(C) Indebtedness of any Restricted Subsidiary that ceases to be a Restricted Subsidiary as a result of such Asset Sale (other than intercompany debt owed to the Company or any Restricted Subsidiary), to the extent that the Company and each other Restricted Subsidiary are released from any guarantee of payment of the principal amount of such Indebtedness in connection with such Asset Sale in accordance with the terms of this Indenture;
(D) consideration consisting of Indebtedness of the Issuers or a Guarantor (other than intercompany debt owed to the Company or any Restricted Subsidiary and other than Subordinated Indebtedness) received after the Issue Date from Persons who are not the Company, Holdings or any Restricted Subsidiary;
(E) any Designated Non-cash Consideration received by the Company or such Restricted Subsidiary in such Asset Sale having an aggregate fair market value, as determined by the Company, taken together with all other Designated Non-cash Consideration received pursuant to this clause (E) that is at that time outstanding, not to exceed the greater of $225.0 million and 30.0% of LTM EBITDA for the most recently ended Test Period at the time of the receipt of |US-DOCS\143900591.2|| such Designated Non-cash Consideration (with the fair market value of each such item of Designated Non-cash Consideration being measured pursuant to this clause (E) at the Company’s option, either at the time of contractually agreeing to such Asset Sale or at the time received and, in either case, without giving effect to subsequent changes in value); and
(F) any Investment, Capital Stock, assets, property or capital or other expenditure of the kind referred to in clauses (2) or (3) of Section 4.10(b) hereof shall be deemed to be Cash Equivalents Permitted Consideration for purposes of this provision and for no other purpose.
(bprovision; provided, further, that the 80% limitation referred to in Section 4.10(3) shall not apply to any Asset Sale in which the Permitted Consideration portion of the consideration received therefore is equal to or greater than what the net after-tax proceeds would have been had such Asset Sale complied with the aforementioned 80% limitation. Within 540 365 days after the receipt of any Net Proceeds of any from an Asset Sale (the “Proceeds Application Period”)Sale, the Company Issuers or such any Restricted Subsidiary, at their option, Subsidiary may apply an amount equal to the such Net Proceeds from such Asset Sale,Proceeds:
(1) to reduce, prepay, repay or purchase:cash collateralize any Credit Agreement Obligations, to repay any Indebtedness of Foamex or any of its Restricted Subsidiaries secured by assets not in the Collateral, or to repay any Indebtedness of any Restricted Subsidiary that is not a Guarantor;
(A2) to acquire all or substantially all of the extent assets of another Permitted Business;
(3) to make a capital expenditure; or
(4) to acquire other long-term assets that are used or useful in a Permitted Business. Pending the final application of any Net Proceeds, Foamex or such Restricted Subsidiary 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 from not applied or invested as provided in the preceding paragraphs will constitute "Excess Proceeds." When the aggregate amount of Excess Proceeds exceeds $15.0 million, within five days thereof, the Issuers will make an Asset Sale Offer to all Holders of Collateral, Obligations Notes and all holders of other Indebtedness that is pari passu with Pari Passu Lien Priority (including the Senior Credit Facilities or any Refinancing Indebtedness Notes containing provisions similar to those set forth in respect thereof but other than Indebtedness owed to the Company or any Restricted Subsidiary), and, in the case of revolving obligations, to correspondingly reduce commitments this Indenture with respect theretoto 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 principal amount plus accrued and unpaid interest and Liquidated Damages, provided thatif any, to the extent either Issuer or date of purchase, and will be payable in cash. If any Restricted Subsidiary will so repay any such Indebtedness (other than the Notes)Excess Proceeds remain after consummation of an Asset Sale Offer, the Issuers may use such Excess Proceeds for any purpose not otherwise prohibited by this Indenture. If the aggregate principal amount of Notes and such other pari passu Indebtedness tendered into such Asset Sale Offer exceeds the amount of Excess Proceeds, the Trustee shall reduce Obligations under select the Notes and such other pari passu Indebtedness to be purchased on a pro rata basis by, at their option, (i) redeeming Notes as provided under Section 3.07 hereof (ii) purchasing Notes through open-market purchases or (iii) by making an offer (in accordance with the procedures set forth herein for an Asset Sale Offer) to all Holders to purchase their Notes at a purchase price equal to 100.0% of the principal amount thereof, plus the amount of accrued but unpaid interest, if any, based on the principal amount of Notes and such other pari passu Indebtedness tendered; provided, however, that the Issuers shall not be obligated to purchase Notes in denominations other than integral multiples of $1,000 principal amount at maturity Upon completion of each Asset Sale Offer, the amount of Excess Proceeds shall be reset at zero. Foamex may commence an Asset Sale Offer at any time without having to be repurchased to wait for the date expiration of repurchase;
(B) the 365 day period. The Issuers will comply in all material respects with the requirements of Rule 14e-1 under the Exchange Act and any other securities laws and regulations thereunder to the extent such Net Proceeds resulted from laws and regulations are applicable in connection with each repurchase of Notes pursuant to an Asset Sale not consisting of Collateral, Obligations in respect of other Secured Indebtedness (which may include the Notes), and, in the case of revolving commitments, to correspondingly reduce commitments with respect thereto;
(C) Obligations in respect of the Notes or any other Indebtedness (other than Subordinated Indebtedness) of the Company or any Restricted Subsidiary, other than Indebtedness owed to the Company or any Restricted Subsidiary (and, in the case of revolving commitments, to correspondingly reduce commitments with respect thereto), provided that, to Offer. To the extent either Issuer that the provisions of any securities laws or any Restricted Subsidiary will so repay any such Indebtedness (other than regulations conflict with the Notes)provisions of Sections 3.09 or 4.10 of this Indenture, the Issuers will reduce Obligations under the Notes on a pro rata basis by, at their option, (i) redeeming Notes as provided under Section 3.07 hereof or (ii) by making an offer (comply in accordance all material respects with the procedures set forth herein for an Asset Sale Offer) to all Holders to purchase their Notes at a purchase price equal to 100.0% of the principal amount thereof, plus the amount of accrued but unpaid interest, if any, on the principal amount of the Notes to be repurchased to the date of repurchase; or |US-DOCS\143900591.2||
(D) Obligations in respect of Indebtedness of a Non-Guarantor Subsidiary, other than Indebtedness owed to the Company or another Restricted Subsidiary; provided, in the case of clauses (A) or (C) above, (i) if an offer to purchase any Indebtedness of the Company or any Restricted Subsidiary is made, such amount applicable securities laws and regulations and will be deemed repaid to the extent of the amount of such offer, whether or not accepted by the holders of such Indebtedness, and no Net Proceeds in the amount of such offer will be deemed to exist following such offer, and (ii) if the holder have breached their obligations under those provisions of any Indebtedness of a Restricted Subsidiary of the Company declines the repayment this Indenture by virtue of such Indebtedness owed to it from such Net Proceeds such amount will be deemed repaid to the extent of the declined Net Proceeds, or
(2) 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 that results in the Company or any Restricted Subsidiary, as the case may be, owning an amount of the Capital Stock of such business such that such business constitutes a Restricted Subsidiary or increases the Company’s direct or indirect percentage ownership of the Capital Stock of a Restricted Subsidiary;conflict.
Appears in 1 contract
Sources: Indenture (Foamex Capital Corp)
Asset Sales. (a) From and after the Completion DateAirGate, the Company shall not consummatewill not, and shall will not permit any of its Restricted Subsidiaries to consummateto, consummate an Asset Sale, Sale unless:
(1) AirGate, or the Company or such Restricted Subsidiary, as the case may be, receives consideration at the time of such Asset Sale at least equal to the fair market value (as determined in good faith by the Company at the time of contractually agreeing to such Asset Sale) of the assets or Equity Interests issued or sold or otherwise disposed of; and;
(2) except in the case of a Permitted Asset Swap, if the property or assets sold or otherwise disposed of have a such fair market value in excess is determined by AirGate's Board of Directors and, if such fair market value exceeds $5.0 million, is evidenced by a resolution of the greater Board of $375.0 million and 50.0% of LTM EBITDA for Directors set forth in an Officers' Certificate delivered to the most recently ended Test Period at the time of such disposition, Trustee;
(3) at least 75.075% of the consideration therefor received by the Company AirGate or such Restricted Subsidiary, as the case may be, Subsidiary is in the form of cash or Cash Equivalents; provided that . For purposes of this provision, each of the amount offollowing shall be deemed to be cash:
(Aa) any liabilities, contingent as shown on AirGate's or otherwisesuch Restricted Subsidiary's most recent balance sheet, of the Company AirGate or such any Restricted Subsidiary, other than contingent liabilities and liabilities that are by their terms subordinated to the Notes or any Guarantee, that are owed to the Company or a Restricted Subsidiary that (x) are assumed by the transferee of any such assets (pursuant to a customary novation agreement that releases AirGate or a third party in connection with such transfer) or (y) are otherwise cancelled or terminated in connection with the transaction with such transferee (other than intercompany debt owed to the Company or its Restricted Subsidiaries) Subsidiary from further liability; and, in each case, for which the Company and all of its Restricted Subsidiaries have been validly released,
(Bb) any securities, notes Notes or other obligations or assets received by the Company AirGate or any such Restricted Subsidiary from such transferee that are contemporaneously, subject to ordinary settlement periods, converted by the Company AirGate or such Restricted Subsidiary into cash or Cash Equivalents (cash, to the extent of the cash or Cash Equivalents received) within 180 days following the closing of such Asset Sale;received in that conversion; and
(C4) Indebtedness of any Restricted Subsidiary that ceases to be a Restricted Subsidiary as a result of if such Asset Sale involves the transfer of Collateral, (a) such Asset Sale complies with the applicable provisions of the Security Documents and (b) all consideration (other than intercompany debt owed to the Company or any Restricted Subsidiary), to the extent that the Company and each other Restricted Subsidiary are released from any guarantee of payment of the principal amount of such Indebtedness in connection with such Asset Sale in accordance with the terms of this Indenture;
(D) consideration consisting of Indebtedness of the Issuers or a Guarantor (other than intercompany debt owed to the Company or any Restricted Subsidiary and other than Subordinated Indebtednesscash) received after the Issue Date from Persons who are not the Company, Holdings or any Restricted Subsidiary;
(E) any Designated Non-cash Consideration received by the Company or such Restricted Subsidiary in such Asset Sale having an aggregate fair market value, as determined by the Company, taken together with all other Designated Non-cash Consideration received pursuant to this clause (E) that is at that time outstanding, not to exceed the greater of $225.0 million and 30.0% of LTM EBITDA for the most recently ended Test Period at the time of the receipt of |US-DOCS\143900591.2|| such Designated Non-cash Consideration (with the fair market value of each such item of Designated Non-cash Consideration being measured pursuant to this clause (E) at the Company’s option, either at the time of contractually agreeing to such Asset Sale or at the time received and, in either case, without giving effect to subsequent changes in value); and
(F) any Investment, Capital Stock, assets, property or capital or other expenditure of the kind referred to in clauses (2) or (3) of Section 4.10(b) hereof shall be deemed expressly made subject to the Lien under the Security Documents, which Lien shall be Cash Equivalents for purposes of this provision and for no other purpose.
(b) junior in priority to a similar Lien granted to secure Senior Debt. Within 540 360 days after the receipt of any Net Proceeds of any from an Asset Sale (the “Proceeds Application Period”)Sale, the Company or such Restricted Subsidiary, at their option, AirGate may apply an amount equal to the such Net Proceeds from such Asset Sale,at its option:
(1) to reduce, prepay, repay or purchase:Senior Debt;
(A2) to acquire all or substantially all of the extent assets of, or a majority of the Voting Stock of, another Permitted Business which becomes part of, or which is or becomes, a Restricted Subsidiary;
(3) to make a capital expenditure in assets that are used or useful in a Permitted Business; or
(4) to acquire other long-term assets that are used or useful in a Permitted Business. Pending the final application of any such Net Proceeds, AirGate may temporarily reduce revolving credit borrowings or otherwise invest such Net Proceeds in any manner that is not prohibited by this Indenture. Any Net Proceeds from Asset Sales that are from not applied or invested as provided in the preceding paragraph will constitute "Excess Proceeds." When the aggregate amount of Excess Proceeds exceeds $10.0 million (an Asset Sale of Collateral, Obligations with Pari Passu Lien Priority (including the Senior Credit Facilities or any Refinancing Indebtedness in respect thereof but other than Indebtedness owed to the Company or any Restricted Subsidiary"Excess Proceeds Triggering Event"), and, in the case of revolving obligations, to correspondingly reduce commitments with respect thereto, provided that, to the extent either Issuer or any Restricted Subsidiary AirGate will so repay any such Indebtedness (other than the Notes), the Issuers shall reduce Obligations under the Notes on a pro rata basis by, at their option, (i) redeeming Notes as provided under Section 3.07 hereof (ii) purchasing Notes through open-market purchases or (iii) by making an offer (in accordance with the procedures set forth herein for make an Asset Sale Offer) to all Holders to purchase their Notes at a purchase . The offer price in any Asset Sale Offer will be equal to 100.0100% of the principal amount thereofamount, plus the amount of accrued but and unpaid interest, if any, on the principal amount of the Notes to be repurchased to the date of repurchase;
(B) purchase and will be payable in cash. If any Excess Proceeds remain after consummation of an Asset Sale Offer, AirGate may use such Excess Proceeds for any purpose not otherwise prohibited by this Indenture. If the aggregate principal amount of Notes and such 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 shall be reset at zero. AirGate 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 Net Proceeds resulted from an Asset Sale not consisting laws and regulations are applicable in connection with each repurchase of Collateral, Obligations in respect of other Secured Indebtedness (which may include the Notes), and, in the case of revolving commitments, Notes pursuant to correspondingly reduce commitments with respect thereto;
(C) Obligations in respect of the Notes or any other Indebtedness (other than Subordinated Indebtedness) of the Company or any Restricted Subsidiary, other than Indebtedness owed to the Company or any Restricted Subsidiary (and, in the case of revolving commitments, to correspondingly reduce commitments with respect thereto), provided that, to the extent either Issuer or any Restricted Subsidiary will so repay any such Indebtedness (other than the Notes), the Issuers will reduce Obligations under the Notes on a pro rata basis by, at their option, (i) redeeming Notes as provided under Section 3.07 hereof or (ii) by making an offer (in accordance with the procedures set forth herein for an Asset Sale Offer) to all Holders to purchase their Notes at a purchase price equal to 100.0% of the principal amount thereof, plus the amount of accrued but unpaid interest, if any, on the principal amount of the Notes to be repurchased to the date of repurchase; or |US-DOCS\143900591.2||
(D) Obligations in respect of Indebtedness of a Non-Guarantor Subsidiary, other than Indebtedness owed to the Company or another Restricted Subsidiary; provided, in the case of clauses (A) or (C) above, (i) if an offer to purchase any Indebtedness of the Company or any Restricted Subsidiary is made, such amount will be deemed repaid to . To the extent that the provisions of any securities laws or regulations conflict with the amount Asset Sale provisions of such offerthis Indenture, whether or AirGate will comply with the applicable securities laws and regulations and will not accepted by the holders of such Indebtedness, and no Net Proceeds in the amount of such offer will be deemed to exist following such offer, and (ii) if have breached its obligations under the holder Asset Sale provisions of any Indebtedness of a Restricted Subsidiary of the Company declines the repayment this Indenture by virtue of such Indebtedness owed to it from such Net Proceeds such amount will be deemed repaid to the extent of the declined Net Proceeds, or
(2) 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 that results in the Company or any Restricted Subsidiary, as the case may be, owning an amount of the Capital Stock of such business such that such business constitutes a Restricted Subsidiary or increases the Company’s direct or indirect percentage ownership of the Capital Stock of a Restricted Subsidiary;conflict.
Appears in 1 contract
Sources: Indenture (Airgate PCS Inc /De/)
Asset Sales. (a) From and after the Completion Date, the The Company shall not consummatenot, and shall not permit any of its Restricted Subsidiaries to consummateto, consummate an Asset Sale, Sale unless:
(1a) the Company Company, or such Restricted the Subsidiary, as the case may be, receives (i) consideration at the time of such the Asset Sale at least equal to the fair market value (as determined in good faith by the Company at the time of contractually agreeing to such Asset Sale) of the assets issued, sold or otherwise disposed of; and
of or (2ii) except in the case of a Permitted lease of assets that constitute an Asset SwapSale, if a lease providing for rents or other consideration which are no less favorable to the property Company or assets sold or otherwise disposed of have the Subsidiary, as the case may be, than the prevailing market conditions;
(b) Company's Management Committee adopts a resolution evidencing its determination that such consideration constitutes such fair market value value, or such lease payments are at prevailing market conditions, as the case may be, as certified in excess an Officers' Certificate delivered to the Trustee; and
(c) at least 75% or, with the approval of the greater Management Committee of $375.0 million and 50.0% of LTM EBITDA for the most recently ended Test Period at the time of such dispositionCompany, at least 75.0% 50%, of the consideration therefor received by the Company or such Restricted Subsidiary, as the case may be, Subsidiary is in the form of cash or Cash EquivalentsCash; provided that the amount ofprovided, that:
(Ai) any liabilities, contingent liabilities (as shown on the Company's or otherwise, the Subsidiary's most recent balance sheet) of the Company or such Restricted Subsidiary, the Subsidiary (other than contingent liabilities and liabilities that are by their terms subordinated to the Notes or Notes) that are owed to the Company or a Restricted Subsidiary that (x) are assumed by the transferee of any such of those assets (or under a third party in connection with such transfer) or (y) are otherwise cancelled or terminated in connection with the transaction with such transferee (other than intercompany debt owed to customary novation agreement that unconditionally releases the Company or its Restricted Subsidiaries) the Subsidiary, as the case may be, from further liability will be deemed to be Cash for purposes of this provision; and, in each case, for which the Company and all of its Restricted Subsidiaries have been validly released,
(Bii) any securities, notes or other obligations or assets received by the Company or such Restricted the Subsidiary from such the transferee that are promptly, but in any event within 30 days of receipt, converted by the Company or such Restricted the Subsidiary into cash or Cash Equivalents (to the extent of the cash or Cash Equivalents receivedreceived in that conversion) within 180 days following the closing of such Asset Sale;
(C) Indebtedness of any Restricted Subsidiary that ceases to be a Restricted Subsidiary as a result of such Asset Sale (other than intercompany debt owed to the Company or any Restricted Subsidiary), to the extent that the Company and each other Restricted Subsidiary are released from any guarantee of payment of the principal amount of such Indebtedness in connection with such Asset Sale in accordance with the terms of this Indenture;
(D) consideration consisting of Indebtedness of the Issuers or a Guarantor (other than intercompany debt owed to the Company or any Restricted Subsidiary and other than Subordinated Indebtedness) received after the Issue Date from Persons who are not the Company, Holdings or any Restricted Subsidiary;
(E) any Designated Non-cash Consideration received by the Company or such Restricted Subsidiary in such Asset Sale having an aggregate fair market value, as determined by the Company, taken together with all other Designated Non-cash Consideration received pursuant to this clause (E) that is at that time outstanding, not to exceed the greater of $225.0 million and 30.0% of LTM EBITDA for the most recently ended Test Period at the time of the receipt of |US-DOCS\143900591.2|| such Designated Non-cash Consideration (with the fair market value of each such item of Designated Non-cash Consideration being measured pursuant to this clause (E) at the Company’s option, either at the time of contractually agreeing to such Asset Sale or at the time received and, in either case, without giving effect to subsequent changes in value); and
(F) any Investment, Capital Stock, assets, property or capital or other expenditure of the kind referred to in clauses (2) or (3) of Section 4.10(b) hereof shall will be deemed to be Cash Equivalents for purposes of this provision and for no other purpose.
(b) Within 540 days after provision. No later than the Business Day following the date of receipt of any Net Proceeds from an Asset Sale, the Company shall apply 100% of such Net Proceeds to (i) repay Indebtedness with respect to Permitted Priority Liens incurred or permitted pursuant to the terms of this Indenture in connection with, and secured by, the asset so sold and pay down the outstanding balance, if any, under the Liquidity Facility (or such lesser amount of the outstanding balance of the Liquidity Facility as approved by at least a majority in outstanding principal amount of the then outstanding Notes) and to permanently reduce the loan commitments thereunder by the amount so prepaid. The Company shall use 50% of any remaining Net Proceeds from any Asset Sale after application pursuant to the prior sentence (the “Proceeds Application Period”), the Company or such Restricted Subsidiary, lesser amount of Net Proceeds as is approved by at their option, least a majority in outstanding principal amount of the then outstanding Notes) as follows: (x) up to $20 million of such amount may apply an amount equal be deposited into the Senior Notes Escrow Account to the Net Proceeds from such Asset Sale,
extent required by the Senior Notes Indenture and, to the extent not so required, into the Escrow Account; and (1) to reduce, prepay, repay or purchase:
(Ay) to the extent such Net Proceeds are from an Asset Sale of Collateral, Obligations with Pari Passu Lien Priority (including not deposited into the Senior Credit Facilities Notes Escrow Account or any Refinancing Indebtedness in respect thereof but other than Indebtedness owed to the Escrow Account, the Company or any Restricted Subsidiary), and, in shall use such amount (the case of revolving obligations, to correspondingly reduce commitments with respect thereto, provided that, "REMAINING ASSET SALE PROCEEDS") to the extent either Issuer or any Restricted Subsidiary will so repay any such Indebtedness (other than required by the Notes), Senior Notes Indenture to redeem the Issuers shall reduce Obligations under maximum principal amount of the Senior Notes on a pro rata basis by, at their option, (i) redeeming Notes as provided under Section 3.07 hereof (ii) purchasing Notes through open-market purchases or (iii) by making an offer (that may be redeemed out of the Remaining Asset Sale Proceeds in accordance with the procedures set forth herein for an Senior Notes Indenture and, if any of such Remaining Asset Sale Offer) Proceeds remain after application to all Holders any such redemption of Senior Notes, the Company shall use such remaining amount to purchase their Notes at a purchase price equal to 100.0% of redeem the principal amount thereof, plus the amount of accrued but unpaid interest, if any, on the maximum principal amount of the Notes to that may be repurchased to redeemed out of such moneys in accordance with Section 3.8. Pending the date final applications of repurchase;
any Net Proceeds from Asset Sales governed by the preceding paragraph, the Company or the applicable Subsidiary may invest such Net Proceeds in Cash which (B) to the extent such Net Proceeds resulted from required by the Senior Notes Indenture) shall be held in an Asset Sale not consisting account in which the Senior Notes Trustee shall have a first priority perfected security interest, subject to Permitted Priority Liens, for the benefit of Collateral, Obligations in respect the Holders of other Secured Indebtedness (which may include the Notes), Senior Notes and, in subject to the case of revolving commitments, to correspondingly reduce commitments with respect thereto;
(C) Obligations in respect terms of the Senior Notes or any other Indebtedness (other than Subordinated Indebtedness) of Intercreditor Agreement, the Company or any Restricted Subsidiary, other than Indebtedness owed to the Company or any Restricted Subsidiary (Notes and, in the case of revolving commitments, to correspondingly reduce commitments with respect thereto), provided that, to the extent either Issuer or any Restricted Subsidiary will not so repay any such Indebtedness (other than required, shall be held in an account in which the Notes)Trustee shall have a first priority perfected security interest, subject to Permitted Priority Liens, for the Issuers will reduce Obligations under the Notes on a pro rata basis by, at their option, (i) redeeming Notes as provided under Section 3.07 hereof or (ii) by making an offer (in accordance with the procedures set forth herein for an Asset Sale Offer) to all Holders to purchase their Notes at a purchase price equal to 100.0% benefit of the principal amount thereof, plus the amount Holders of accrued but unpaid interest, if any, on the principal amount of the Notes to be repurchased to the date of repurchase; or |US-DOCS\143900591.2||
(D) Obligations in respect of Indebtedness of a Non-Guarantor Subsidiary, other than Indebtedness owed to the Company or another Restricted Subsidiary; provided, in the case of clauses (A) or (C) above, (i) if an offer to purchase any Indebtedness of the Company or any Restricted Subsidiary is made, such amount will be deemed repaid to the extent of the amount of such offer, whether or not accepted by the holders of such Indebtedness, and no Net Proceeds in the amount of such offer will be deemed to exist following such offer, and (ii) if the holder of any Indebtedness of a Restricted Subsidiary of the Company declines the repayment of such Indebtedness owed to it from such Net Proceeds such amount will be deemed repaid to the extent of the declined Net Proceeds, or
(2) 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 that results in the Company or any Restricted Subsidiary, as the case may be, owning an amount of the Capital Stock of such business such that such business constitutes a Restricted Subsidiary or increases the Company’s direct or indirect percentage ownership of the Capital Stock of a Restricted Subsidiary;Notes.
Appears in 1 contract
Sources: Indenture (Komag Inc /De/)
Asset Sales. (a) From and after the Completion Date, the The Company shall not consummatewill not, and shall will not permit any of its Restricted Subsidiaries to consummateto, consummate an Asset Sale, Sale unless:
(1) the Company (or such 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 determined in good faith by of the Company at date of the time of contractually agreeing definitive agreement with respect to such Asset Sale) of the assets or Equity Interests issued, sold or otherwise disposed of; andprovided that (i) any involuntary disposition or (ii) any disposition of Slots or Gate Leaseholds shall be deemed to satisfy the provisions of this clause (1) regardless of the consideration received;
(2) except in the case of a Permitted Asset Swap, if the property or assets sold or otherwise disposed of have a fair market value in excess of the greater of $375.0 million and 50.0% of LTM EBITDA for the most recently ended Test Period at the time of such disposition, at least 75.075% of the consideration therefor received in the Asset Sale by the Company or such Restricted Subsidiary, as the case may be, Subsidiary is in the form of cash or Cash Equivalents, Qualified Replacement Assets, or a combination thereof; provided that the amount of:
(i) any involuntary disposition or (ii) any disposition of (A) any liabilitiesSlots or Gate Leaseholds, contingent (B) assets used or otherwise, of the Company or such Restricted Subsidiary, other than liabilities that are by their terms subordinated to the Notes or that are owed to the Company or a Restricted Subsidiary that (x) are assumed by the transferee of any such assets (or a third party useful in connection with such transfer) any loyalty program, maintenance, repair and overhaul business or (y) are otherwise cancelled or terminated in connection with the transaction with such transferee (other than intercompany debt owed to the Company or its Restricted Subsidiaries) andflight center training business, in each case, for which the Company and all of its Restricted Subsidiaries have been validly released,
(B) any securities, notes or other obligations or assets received by the Company or such Restricted Subsidiary from such transferee that are converted by the Company or such Restricted Subsidiary into cash or Cash Equivalents (to the extent of the cash or Cash Equivalents received) within 180 days following the closing of such Asset Sale;
(C) Indebtedness Capital Stock of any Restricted Subsidiary Person that ceases to be a Restricted Subsidiary as a result of such Asset Sale (other than intercompany debt owed to the Company or any Restricted Subsidiary), to the extent that the Company and each other Restricted Subsidiary are released from any guarantee of payment of the principal amount of such Indebtedness in connection with such Asset Sale in accordance with the terms of this Indenture;
(D) consideration consisting of Indebtedness of the Issuers or a Guarantor (other than intercompany debt owed to the Company or any Restricted Subsidiary and other than Subordinated Indebtedness) received after the Issue Date from Persons who are not the Company, Holdings or any Restricted Subsidiary;
(E) any Designated Non-cash Consideration received by the Company or such Restricted Subsidiary in such Asset Sale having an aggregate fair market value, as determined by the Company, taken together with all other Designated Non-cash Consideration received pursuant to this clause (E) that is at that time outstanding, not to exceed the greater of $225.0 million and 30.0% of LTM EBITDA for the most recently ended Test Period at the time of the receipt of |US-DOCS\143900591.2|| such Designated Non-cash Consideration (with the fair market value of each such item of Designated Non-cash Consideration being measured pursuant to this clause (E) at the Company’s option, either at the time of contractually agreeing to such Asset Sale or at the time received and, in either case, without giving effect to subsequent changes in value); and
(F) any Investment, Capital Stock, assets, property or capital or other expenditure owns assets of the kind referred to in clauses (2A) or (B) of this proviso or (D) any assets or rights not constituting Collateral may be for consideration of a form or combination of forms not meeting the required minimum cash or Cash Equivalents, Qualified Replacement Assets or combination thereof described in this clause (2);
(3) in the case of Section 4.10(ban Asset Sale that constitutes a Sale of Collateral or Sale of a Grantor, the Company (or the applicable Grantor, as the case may be) hereof shall be deemed to be Cash Equivalents deposits the Net Proceeds therefrom within two Business Days, or in the case of a sale of Cure Collateral, within five Business Days, of receipt thereof as Collateral in a segregated account or accounts (each, a “Collateral Proceeds Account”) held by or under the control of (for purposes of this provision the Uniform Commercial Code) the Collateral Trustee or its agent to secure all Secured Debt Obligations; provided, however, that the Company will not be required to cause any Net Proceeds from a Sale of Collateral or Sale of a Grantor to be held in the Collateral Proceeds Account except to the extent the aggregate Net Proceeds from all Sales of Collateral or Sales of a Grantor that are not held in the Collateral Proceeds Account would exceed (i) $5.0 million prior to the effective date of the Airlines Merger or (ii) $10.0 million from and for no other purpose.after the effective date of the Airlines Merger; and
(b4) Within 540 in the case of an Asset Sale that constitutes a Sale of Collateral or Sale of a Grantor, the Company (or the applicable Grantor, as the case may be) delivers an Appraisal to the Trustee and the Collateral Trustee demonstrating, with reasonably detailed calculations, the Priority Lien Debt Value Ratio, after giving pro forma effect to such Sale of Collateral or Sale of a Grantor (excluding, for purposes of calculating the Priority Lien Debt Value Ratio, the proceeds of such Sale of Collateral or Sale of a Grantor and the intended use thereof); and provided that:
(A) if the pro forma Priority Lien Debt Value Ratio (calculated as provided in clause (4) of this Section 4.10(a)) is at least 1.5 to 1.0, within 365 days after the receipt of any Net Proceeds from such a Sale of any Asset Collateral or Sale (the “Proceeds Application Period”)of a Grantor, the Company or such Restricted Subsidiary, at their option, may apply such Net Proceeds:
(i) to purchase Qualified Replacement Assets;
(ii) to purchase Cure Collateral, in the case of Net Proceeds received from any sale of Cure Collateral;
(iii) to repay Indebtedness (other than Secured Debt Obligations) that is secured by a Permitted Lien on any Collateral that was sold in such Sale of Collateral or Sale of a Grantor;
(iv) to optionally redeem all or a part of the Notes pursuant to any of the provisions of Section 3.07 hereof; or
(v) to make a capital expenditure to augment, increase, renovate or renew assets that constitute Collateral; provided that the Company will be deemed to have complied with the provision described in clauses (i), (ii) and (v) of this Section 4.10(a)(4)(A) if and to the extent that, within 365 days after the Sale of Collateral or Sale of a Grantor that generated the Net Proceeds, the Company has entered into and not abandoned or rejected a binding agreement to acquire the assets that would constitute Collateral or make a capital expenditure in compliance with the provision described in clauses (i), (ii) and (v) of this Section 4.10(a)(4)(A), and that acquisition, purchase or capital expenditure is thereafter completed within 180 days after the end of such 365-day period;
(B) if the pro forma Priority Lien Debt Value Ratio (calculated as provided in clause (4) of this Section 4.10(a)) is less than 1.5 to 1.0 and equal to or greater than 1.25 to 1.0, the Company will:
(i) pay Special Interest commencing to accrue on the date of such Sale of Collateral or Sale of a Grantor, with the first payment due on the first regular interest payment date to occur at least 50 days after the date of such Sale of Collateral or Sale of a Grantor. The Company may, within 45 days after such Sale of Collateral or Sale of a Grantor, grant a Secured Debt Lien on Qualified Replacement Assets to secure all current and future Secured Debt Obligations, in which event the pro forma Priority Lien Debt Value Ratio will be recalculated and such Qualified Replacement Assets will be included in the calculation of the pro forma Priority Lien Debt Value Ratio (calculated as provided in clause (4) of this Section 4.10(a)). If, after the pledge of Qualified Replacement Assets within the 45-day period contemplated by the preceding sentence and the recalculation of the pro forma Priority Lien Debt Value Ratio pursuant to the preceding sentence, the Company’s pro forma Priority Lien Debt Value Ratio (calculated as provided in clause (4) of this Section 4.10(a)) is at least 1.5 to 1.0, no Special Interest will accrue pursuant to this clause (i) of this Section 4.10(a)(4)(B);
(ii) contribute (or cause the applicable Grantor to contribute) to the Collateral Proceeds Account within two Business Days of the closing of such Sale of Collateral or Sale of a Grantor: (x) 100% of the cash and Cash Equivalents received in such Sale of Collateral or Sale of a Grantor and (y) cash or Cash Equivalents in an amount equal to the Fair Market Value of the non-cash consideration received in such Sale of Collateral or Sale of a Grantor (the aggregate amount of cash and Cash Equivalents contemplated by clauses (x) and (y) is collectively referred to as the “Sale of Collateral Consideration”);
(iii) within five Business Days of the date on which the aggregate amount of Sale of Collateral Consideration from such Sale of Collateral or Sale of a Grantor and all prior Sales of Collateral or Sales of a Grantor contemplated by this clause (a)(4)(B) that has not previously been used to make an offer to repurchase the Notes exceeds $10.0 million, make an offer to repurchase, for cash, the Notes in an amount equal to the Sale of Collateral Consideration, whereby (I) the offer price will be equal to 103% of the principal amount, plus accrued and unpaid interest and Special Interest, if any, to the date of purchase, subject to the rights of Holders of Notes on the relevant record date to receive interest due on the relevant interest payment date and (II) if the aggregate principal amount of Notes tendered in such offer exceeds the Sale of Collateral Consideration, the Trustee will select the Notes to be purchased pro rata (or, in the case of Global Notes, the Trustee will select Notes to be purchased based on DTC’s method that most nearly approximates a pro rata selection) based on the aggregate principal amounts so tendered (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) (such offer, a “Sale of Collateral Offer”); and
(iv) retain any cash or Cash Equivalents remaining after the consummation of the Sale of Collateral Offer in the Collateral Proceeds Account as Collateral, unless the Company, at its option, chooses to use such funds to (x) purchase (or cause a Grantor to purchase) Qualified Replacement Assets or (y) optionally redeem all or a part of the Notes pursuant to any of the provisions of Section 3.07 hereof; and
(C) if the pro forma Priority Lien Debt Value Ratio (calculated as provided in clause (4) of this Section 4.10(a)) is less than 1.25 to 1.0, the Company will, prior to such Sale of Collateral or Sale of a Grantor, grant (or cause a Grantor to grant) a Secured Debt Lien on such amount of Qualified Replacement Assets to secure all current and future Secured Debt Obligations as would be necessary to cause the calculation of the pro forma Priority Lien Debt Value Ratio as of the date of such Sale of Collateral or Sale of a Grantor, calculated as if such pledge of Qualified Replacement Assets had already occurred, to be at least 1.25 to 1.0. If the recalculated pro forma Priority Lien Debt Value Ratio would have been at least 1.5 to 1.0, the Company will comply with clause (4)(A) of this Section 4.10(a) in connection with such Sale of Collateral or Sale of a Grantor, otherwise, the Company will comply with clause (4)(B) of this Section 4.10(a). For the avoidance of doubt, in no event will the Company consummate any Asset Sale that constitutes a Sale of Collateral or Sale of a Grantor if the Priority Lien Debt Value Ratio is or, after giving effect thereto, would be less than 1.25 to 1.0 (excluding the proceeds of such Sale of Collateral or Sale of a Grantor and the intended use thereof).
(b) Within 365 days after the receipt of any Net Proceeds from such an Asset Sale,, other than a Sale of Collateral or Sale of a Grantor, the Company (or the applicable Restricted Subsidiary, as the case may be) may apply such Net Proceeds:
(1) to reduce, prepay, repay or purchase:
(A) to the extent such Net Proceeds are from an Asset Sale of Collateral, Obligations with Pari Passu Lien Priority (including the Senior Credit Facilities or any Refinancing Indebtedness in respect thereof but other than Indebtedness owed to the Company or any Restricted Subsidiary), and, in the case of revolving obligations, to correspondingly reduce commitments with respect thereto, provided that, to the extent either Issuer or any Restricted Subsidiary will so repay any such Indebtedness (other than the Notes), the Issuers shall reduce Obligations under the Notes on in whole or in part and any other Indebtedness secured by a pro rata basis by, at their option, (i) redeeming Notes as provided under Section 3.07 hereof (ii) purchasing Notes through open-market purchases or (iii) by making an offer (in accordance with the procedures set forth herein for an Asset Sale Offer) to all Holders to purchase their Notes at a purchase price equal to 100.0% of the principal amount thereof, plus the amount of accrued but unpaid interest, if any, on the principal amount of the Notes to be repurchased to the date of repurchaseLien;
(B2) to the extent such Net Proceeds resulted from an Asset Sale not consisting of Collateral, Obligations in respect of other Secured Indebtedness (which may include the Notes), and, in the case of revolving commitments, to correspondingly reduce commitments with respect thereto;
(C) Obligations in respect of the Notes or repay any other Indebtedness (other than Subordinated Indebtedness) of the Company in whole or any Restricted Subsidiaryin part, other than Indebtedness owed to the Company or any of its Restricted Subsidiary Subsidiaries (andsubject to, in the case of revolving commitments, to correspondingly reduce commitments with respect thereto), provided that, any Indebtedness that is subordinated to the extent either Issuer Notes or any Restricted Subsidiary will so repay Note Guarantee, Section 4.07 hereof);
(3) 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 Indebtedness (other than the Notes)acquisition of Capital Stock, the Issuers will reduce Obligations under the Notes on a pro rata basis by, at their option, (i) redeeming Notes as provided under Section 3.07 hereof Permitted Business is or (ii) by making an offer (in accordance with the procedures set forth herein for an Asset Sale Offer) to all Holders to purchase their Notes at a purchase price equal to 100.0% of the principal amount thereof, plus the amount of accrued but unpaid interest, if any, on the principal amount of the Notes to be repurchased to the date of repurchase; or |US-DOCS\143900591.2||
(D) Obligations in respect of Indebtedness of a Non-Guarantor Subsidiary, other than Indebtedness owed to the Company or another Restricted Subsidiary; provided, in the case of clauses (A) or (C) above, (i) if an offer to purchase any Indebtedness of the Company or any Restricted Subsidiary is made, such amount will be deemed repaid to the extent of the amount of such offer, whether or not accepted by the holders of such Indebtedness, and no Net Proceeds in the amount of such offer will be deemed to exist following such offer, and (ii) if the holder of any Indebtedness of becomes a Restricted Subsidiary of the Company declines or is acquired by a merger, consolidation or amalgamation with the repayment of such Indebtedness owed to it from such Net Proceeds such amount will be deemed repaid to the extent Company or a Restricted Subsidiary of the declined Net Proceeds, Company;
(4) to make a capital expenditure; or
(25) to make an Investment acquire other assets that are used or useful in (A) any one or more businesses, a Permitted Business; provided that such Investment in any business is in the form of the acquisition of Capital Stock that results in the Company (or any the applicable Restricted Subsidiary, as the case may be) will be deemed to have complied with the provision described in clauses (3), owning (4) and (5) of this Section 4.10(b) 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, as the case may be) has entered into and not abandoned or rejected a binding agreement to acquire a Permitted Business, make a capital expenditure or acquire other assets used or useful in a Permitted Business in compliance with the provision described in clauses (3), (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 and provided, further, that to the extent Net Proceeds are comingled with other cash and Cash Equivalents, the Company (or the applicable Restricted Subsidiary, as the case may be) shall be deemed to have complied with the provisions of clauses (1) through (5) above so long as the Company (or such Restricted Subsidiary) uses any cash or Cash Equivalents of the Company (or such Restricted Subsidiary) to take any of the actions described in clauses (1) through (5) above.
(c) Pending the final application of any Net Proceeds from an Asset Sale that is not a Sale of Collateral or Sale of a Grantor, 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 clause (a)(4)(A) or clause (b) of this Section 4.10, together with any such Net Proceeds that are earlier designated as “Excess Proceeds” by the Company, will constitute “Excess Proceeds.” Within five Business Days of the date on which the aggregate amount of Excess Proceeds (including any Excess Proceeds held in the Capital Stock Collateral Proceeds Account, other than any Sale of Collateral Consideration) exceeds $30.0 million (or earlier if the Company so elects), the Company will make an offer and/or repay, prepay or redeem, as applicable, to all Holders of Notes and all holders of other Priority Lien Debt containing provisions similar to those set forth in this Indenture with respect to offers to purchase (“Other Offer Notes”), and prepay any other Priority Lien Debt requiring repayment or prepayment (collectively, whether through an offer or a required prepayment, an “Asset Sale Offer”); provided that the percentage of such business Excess Proceeds allocated and offered to the Notes in such Asset Sale Offer is at least equal to the percentage of the aggregate principal amount of all Priority Lien Debt represented at such time by the Notes. 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, 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 may use those Excess Proceeds for any purpose not otherwise prohibited by this Indenture. If the aggregate principal amount of Notes and Other Offer Notes tendered in such Asset Sale Offer exceeds the amount of Excess Proceeds (including any Excess Proceeds held in the Collateral Proceeds Account, other than any Sale of Collateral Consideration) allocated to such Notes and Other Offer Notes in such Asset Sale Offer, the Trustee will select the Notes and Other Offer Notes to be purchased pro rata (or, in the case of Global Notes, the Trustee will select Notes to be purchased based on DTC’s method that most nearly approximates a pro rata selection) based on the aggregate principal amounts so tendered (with such business constitutes 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 amount of Excess Proceeds will be reset at zero. The Company will comply with the requirements of Rule 14e-1 under the Exchange Act and any other securities laws and regulations thereunder to the extent such laws and regulations are applicable in connection with each repurchase of Notes pursuant to an Asset Sale Offer or a Restricted Subsidiary Sale of Collateral Offer. To the extent that the provisions of any securities laws or increases regulations conflict with the provisions of Section 3.09 hereof or this Section 4.10, the Company will comply with the applicable securities laws and regulations and will not be deemed to have breached its obligations under Section 3.09 hereof or this Section 4.10 by virtue of such compliance. For the avoidance of doubt, the Company’s direct or indirect percentage ownership failure to make an offer for the Notes would constitute a Default under clause (4) of the Capital Stock of a Restricted Subsidiary;Section 6.01 hereof and not clause (2).
Appears in 1 contract
Asset Sales. (a) From and after the Completion Date, Neither the Company shall not consummate, and shall not permit nor any of its Restricted Subsidiaries to consummate, shall consummate an Asset Sale, Sale unless:
(1i) the Company or such 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 (as determined in good faith by the Company at the time of contractually agreeing to such Asset Sale) Fair Market Value of the assets sold sold, leased, conveyed or otherwise disposed ofof or of the Equity Interests issued or sold;
(ii) such Fair Market Value is determined by the Company's Board of Directors and evidenced by a resolution of such Board of Directors, which resolution shall, in the case of an Asset Sale with a Fair Market Value of greater than $10.0 million, be set forth in an Officers' Certificate delivered to the Trustee; and
(2iii) except in the case of a Permitted Asset Swap, if the property or assets sold or otherwise disposed of have a fair market value in excess of the greater of $375.0 million and 50.0% of LTM EBITDA for the most recently ended Test Period at the time of such disposition, (A) at least 75.075% of the consideration therefor received by the Company or such its Restricted Subsidiary, as the case may be, Subsidiary is in the form of cash or Cash Equivalents; provided that Equivalents or (B) the amount of:
Asset Sale qualifies as a Permitted Telecommunications Exchange Transaction. For purposes of clause (Aiii) of this paragraph (a), the following are considered to be cash: any liabilities, contingent as shown on the Company's or otherwisesuch Restricted Subsidiary's most recent balance sheet, of the Company or such any Restricted Subsidiary, other than contingent liabilities and liabilities that are by their terms subordinated to the Notes or any Note Guarantee, that are owed to the Company or a Restricted Subsidiary that (x) are assumed by the transferee of any such assets (or Equity Interests pursuant to a third party in connection with such transfer) or (y) are otherwise cancelled or terminated in connection with the transaction with such transferee (other than intercompany debt owed to customary novation agreement that released the Company or its such Restricted Subsidiaries) and, in each case, for which the Company Subsidiary from further liability; and all of its Restricted Subsidiaries have been validly released,
(B) any securities, notes or other obligations or assets received by the Company or any such Restricted Subsidiary from such transferee that are converted by the Company or such Restricted Subsidiary into cash or Cash Equivalents (within 60 days following the closing, to the extent of the cash or Cash Equivalents received) within 180 days following the closing of such Asset Sale;
(C) Indebtedness of any Restricted Subsidiary received in that ceases to be a Restricted Subsidiary as a result of such Asset Sale (other than intercompany debt owed to the Company or any Restricted Subsidiary), to the extent that the Company and each other Restricted Subsidiary are released from any guarantee of payment of the principal amount of such Indebtedness in connection with such Asset Sale in accordance with the terms of this Indenture;
(D) consideration consisting of Indebtedness of the Issuers or a Guarantor (other than intercompany debt owed to the Company or any Restricted Subsidiary and other than Subordinated Indebtedness) received after the Issue Date from Persons who are not the Company, Holdings or any Restricted Subsidiary;
(E) any Designated Non-cash Consideration received by the Company or such Restricted Subsidiary in such Asset Sale having an aggregate fair market value, as determined by the Company, taken together with all other Designated Non-cash Consideration received pursuant to this clause (E) that is at that time outstanding, not to exceed the greater of $225.0 million and 30.0% of LTM EBITDA for the most recently ended Test Period at the time of the receipt of |US-DOCS\143900591.2|| such Designated Non-cash Consideration (with the fair market value of each such item of Designated Non-cash Consideration being measured pursuant to this clause (E) at the Company’s option, either at the time of contractually agreeing to such Asset Sale or at the time received and, in either case, without giving effect to subsequent changes in value); and
(F) any Investment, Capital Stock, assets, property or capital or other expenditure of the kind referred to in clauses (2) or (3) of Section 4.10(b) hereof shall be deemed to be Cash Equivalents for purposes of this provision and for no other purposeconversion.
(b) Within 540 360 days after the receipt of any Net Proceeds of any Asset Sale (the “Proceeds Application Period”), the Company or such Restricted Subsidiary, at their option, may apply an amount equal to the Net Proceeds from such Asset Sale,
(1) to reduce, prepay, repay or purchase:
(A) to the extent such Net Proceeds are from an Asset Sale of CollateralSale, Obligations with Pari Passu Lien Priority (including the Senior Credit Facilities or any Refinancing Indebtedness in respect thereof but other than Indebtedness owed to the Company or any Restricted Subsidiary), and, in Subsidiary shall be permitted to apply the case of revolving obligations, to correspondingly reduce commitments with respect thereto, provided that, to the extent either Issuer or any Restricted Subsidiary will so repay any such Indebtedness (other than the Notes), the Issuers shall reduce Obligations under the Notes on a pro rata basis byNet Proceeds, at their its option, ,
(i) redeeming Notes as provided under Section 3.07 hereof to repay Senior Debt;
(ii) purchasing Notes through open-market purchases to acquire a majority of the Voting Stock of another Permitted Business which becomes part of, or which is or becomes, a Restricted Subsidiary of the Company;
(iii) to make one or more capital expenditures in assets that are used or useful in a Permitted Business; or
(iv) to acquire other assets that are used or useful in a Permitted Business. Pending the final application of any such Net Proceeds, the Company may temporarily reduce revolving credit borrowings or otherwise invest such Net Proceeds in any manner that is not prohibited by making this Indenture.
(c) Any Net Proceeds from Asset Sales that are not applied or invested as provided in paragraph (b) of this Section 4.10 will be deemed to constitute "Excess Proceeds." When the amount of Excess Proceeds is greater than $10.0 million, the Company shall be required to make an offer (to all holders of Notes and all holders of Indebtedness that is equal in accordance right of payment with the procedures Notes containing provisions similar to those set forth herein for in this Indenture with respect to offers to purchase or redeem the Indebtedness with the proceeds of sales of assets (an "Asset Sale Offer") to all Holders to purchase their the maximum Accreted Value or principal amount at maturity of Notes at a purchase and such other Indebtedness that is equal in right of payment that may be purchased out of the Excess Proceeds. The offer price in any Asset Sale Offer will be equal to 100.0100% of the Accreted Value or 100% of the principal amount thereofat maturity, plus the amount of accrued but and unpaid interest, if any, on the principal amount of the Notes to be repurchased to the date of repurchase;purchase, as applicable, and will be payable in cash. If 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 and such 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 Indebtedness that is equal in right of payment to be purchased pursuant to Section 3.09 on a pro rata basis, by lot or by such method as the Trustee shall deem fair and appropriate. Upon completion of an Asset Sale Offer, the amount of Excess Proceeds shall be reset at zero.
(Bd) 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 Net Proceeds resulted from an Asset Sale not consisting laws and regulations are applicable in connection with each repurchase of Collateral, Obligations in respect of other Secured Indebtedness (which may include the Notes), and, in the case of revolving commitments, Notes pursuant to correspondingly reduce commitments with respect thereto;
(C) Obligations in respect of the Notes or any other Indebtedness (other than Subordinated Indebtedness) of the Company or any Restricted Subsidiary, other than Indebtedness owed to the Company or any Restricted Subsidiary (and, in the case of revolving commitments, to correspondingly reduce commitments with respect thereto), provided that, to the extent either Issuer or any Restricted Subsidiary will so repay any such Indebtedness (other than the Notes), the Issuers will reduce Obligations under the Notes on a pro rata basis by, at their option, (i) redeeming Notes as provided under Section 3.07 hereof or (ii) by making an offer (in accordance with the procedures set forth herein for an Asset Sale Offer) . To the extent the provisions of any such rule conflict with the provisions of this Indenture relating to all Holders to purchase their Notes at a purchase price equal to 100.0% of the principal amount thereofAsset Sales, plus the amount of accrued but unpaid interest, if any, on the principal amount of the Notes to be repurchased to the date of repurchase; or |US-DOCS\143900591.2||
(D) Obligations in respect of Indebtedness of a Non-Guarantor Subsidiary, other than Indebtedness owed to the Company or another Restricted Subsidiary; provided, in shall comply with the case provisions of clauses (A) or (C) above, (i) if an offer to purchase any Indebtedness of the Company or any Restricted Subsidiary is made, such amount will rule and be deemed repaid not to the extent of the amount have breached its obligations relating to such Asset Sale provisions by virtue of such offer, whether or not accepted by the holders of such Indebtedness, and no Net Proceeds in the amount of such offer will be deemed to exist following such offer, and (ii) if the holder of any Indebtedness of a Restricted Subsidiary of the Company declines the repayment of such Indebtedness owed to it from such Net Proceeds such amount will be deemed repaid to the extent of the declined Net Proceeds, or
(2) 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 that results in the Company or any Restricted Subsidiary, as the case may be, owning an amount of the Capital Stock of such business such that such business constitutes a Restricted Subsidiary or increases the Company’s direct or indirect percentage ownership of the Capital Stock of a Restricted Subsidiary;conflict.
Appears in 1 contract
Sources: Indenture (Ipcs Inc)
Asset Sales. (a) From and after the Completion Date, the The Company shall not consummatewill not, and shall will not permit any of its Restricted Subsidiaries to consummateto, consummate an Asset Sale, Sale unless:
(1) the Company (or such 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 determined in good faith by of the Company at date of the time of contractually agreeing definitive agreement with respect to such Asset Sale) of the Equity Interests issued or the assets sold or otherwise disposed of; and
(2) except in the case of a Permitted Asset Swap, if the property or assets sold or otherwise disposed of have a fair market value in excess of the greater of $375.0 million and 50.0% of LTM EBITDA for the most recently ended Test Period at the time of such disposition, at least 75.075% of the aggregate consideration therefor received in the Asset Sale and all other Asset Sales since the Issue Date, on a cumulative basis, by the Company or such a Restricted Subsidiary, as the case may be, Subsidiary is in the form of cash or Cash Equivalents; provided that . For purposes of this clause (2) only, each of the amount offollowing will be deemed to be cash:
(Aa) any liabilities, contingent or otherwiseas shown on the Company’s most recent consolidated balance sheet, of the Company or such any Restricted Subsidiary, Subsidiary (other than contingent liabilities and liabilities that are by their terms subordinated to the Notes or any Note Guarantee) that are owed to the Company assumed or a Restricted Subsidiary that (x) are assumed otherwise forgiven or released by the transferee of any such assets (or a third party in connection with such transfer) or (y) are otherwise cancelled or terminated in connection with the transaction with such transferee (other than intercompany debt owed to the Company or its Restricted Subsidiaries) and, in each case, for which the Company and all of its Restricted Subsidiaries have been validly released,an Affiliate thereof);
(Bb) any securities, notes or other obligations or assets received by the Company or such any Restricted Subsidiary from such transferee that are are, within 180 days after the Asset Sale, converted by the Company or such Restricted Subsidiary into cash or Cash Equivalents (cash, to the extent of the cash or Cash Equivalents received) within 180 days following the closing of such Asset Salereceived in that conversion;
(Cc) Indebtedness of any Restricted Subsidiary that ceases to be a Restricted Subsidiary as a result of such Asset Sale (other than intercompany debt owed to the Company Capital Stock or any Restricted Subsidiary), to the extent that the Company and each other Restricted Subsidiary are released from any guarantee of payment assets of the principal amount kind referred to in clause (2) or (4) of such Indebtedness in connection with such Asset Sale in accordance with the terms of this Indenture;Section 4.10(b); and
(D) consideration consisting of Indebtedness of the Issuers or a Guarantor (other than intercompany debt owed to the Company or any Restricted Subsidiary and other than Subordinated Indebtedness) received after the Issue Date from Persons who are not the Company, Holdings or any Restricted Subsidiary;
(Ed) any Designated Non-cash Consideration received by the Company or such Restricted Subsidiary in such Asset Sale having an aggregate fair market value, as determined by the CompanyFair Market Value, taken together with all other Designated Non-cash Consideration received pursuant to this clause (Ed) that is at that time outstanding, not to exceed the greater of (i) $225.0 50.0 million and 30.0(ii) 5.0% of LTM EBITDA for the most recently ended Test Period Consolidated Net Tangible Assets at the time of the receipt of |US-DOCS\143900591.2|| such Designated Non-cash Consideration (Consideration, with the fair market value Fair Market Value of each such item of Designated Non-cash Consideration being measured pursuant to this clause (E) at the Company’s option, either at the time of contractually agreeing to such Asset Sale or at the time received and, in either case, and without giving effect to subsequent changes in value); and
(F) any Investment, Capital Stock, assets, property or capital or other expenditure of the kind referred to in clauses (2) or (3) of Section 4.10(b) hereof shall be deemed to be Cash Equivalents for purposes of this provision and for no other purpose.
(b) Within 540 365 days after the receipt of any Net Proceeds of any from an Asset Sale (the “Proceeds Application Period”)Sale, the Company (or such any Restricted Subsidiary, at their option, ) may apply an amount equal to the such Net Proceeds from such Asset Sale,at its option to any combination of the following:
(1) to reducerepay, prepaypurchase, repay repurchase, redeem, defease or purchase:
otherwise acquire, retire or terminate: (Aa) to the extent such Net Proceeds Indebtedness and all other Obligations related thereto that are from an Asset Sale of Collateral, secured by a Lien; or (b) Obligations with Pari Passu Lien Priority (including the Senior Credit Facilities or any Refinancing Indebtedness in respect thereof but other than Indebtedness owed to the Company or any Restricted Subsidiary), and, in the case of revolving obligations, to correspondingly reduce commitments with respect thereto, provided that, to the extent either Issuer or any Restricted Subsidiary will so repay any such Indebtedness (other than the Notes), the Issuers shall reduce Obligations under the Notes on a pro rata basis by, at their option, (i) redeeming Notes as provided under Section 3.07 hereof (ii) purchasing Notes through open-market purchases or (iii) by making an offer (in accordance with the procedures set forth herein for an Asset Sale Offer) to all Holders to purchase their Notes at a purchase price equal to 100.0% of the principal amount thereof, plus the amount of accrued but unpaid interest, if any, on the principal amount of the Notes to be repurchased to the date of repurchase;
(B) to the extent such Net Proceeds resulted from an Asset Sale not consisting of Collateral, Obligations in respect of other Secured Indebtedness (which may include the Notes), and, in the case of revolving commitments, to correspondingly reduce commitments with respect thereto;
(C) Obligations in respect of the Notes or any other Indebtedness (other than Subordinated Indebtedness) of the Company or any Restricted Subsidiary, other than Indebtedness owed to the Company or any Restricted Subsidiary (and, in the case of revolving commitments, to correspondingly reduce commitments with respect thereto), provided that, to the extent either Issuer or any Restricted Subsidiary will so repay any such Indebtedness (other than the Notes), the Issuers will reduce Obligations under the Notes on a pro rata basis by, at their option, (i) redeeming Notes as provided under Section 3.07 hereof or (ii) by making an offer (in accordance with the procedures set forth herein for an Asset Sale Offer) to all Holders to purchase their Notes at a purchase price equal to 100.0% of the principal amount thereof, plus the amount of accrued but unpaid interest, if any, on the principal amount of the Notes to be repurchased to the date of repurchase; or |US-DOCS\143900591.2||
(D) Obligations in respect of Indebtedness of a Non-Restricted Subsidiary that is not a Guarantor Subsidiary, (other than Indebtedness owed to the Company or another Restricted Subsidiary; provided, in the case of clauses );
(A2) to acquire all or (C) above, (i) if an offer to purchase any Indebtedness substantially all of the Company assets of, or any Restricted Subsidiary is madeCapital Stock of, one or more other Persons primarily engaged in a Permitted Business, if, after giving effect to any such acquisition of Capital Stock, such amount will be deemed repaid to the extent of the amount of such offer, whether or not accepted by the holders of such Indebtedness, and no Net Proceeds in the amount of such offer will be deemed to exist following such offer, and (ii) if the holder of any Indebtedness of Person is a Restricted Subsidiary of the Company declines the repayment of such Indebtedness owed Company;
(3) to it from such Net Proceeds such amount will be deemed repaid to the extent make capital expenditures in respect of the declined Net Proceeds, Company’s or any Restricted Subsidiary’s Permitted Business;
(4) to acquire assets (other than Capital Stock) that are not classified as current assets under GAAP and that are used or useful in a Permitted Business; or
(25) to make an Investment Investments in a Joint Venture not prohibited by Section 4.07, the proceeds of which will be applied by such Person to any combination of (Ai) repaying, purchasing, repurchasing, redeeming, defeasing or otherwise acquiring, retiring or terminating Indebtedness of such Person or a Subsidiary of such Person and other Obligations related thereto, (ii) acquiring all or substantially all of the assets of, or any Capital Stock of, one or more businessesother Persons primarily engaged in a Permitted Business, provided (iii) making capital expenditures in respect of such Person’s Permitted Business, or (iv) acquiring assets (other than Capital Stock) that such Investment are not classified as current assets under GAAP and that are used or useful in any business a Permitted Business.
(c) The requirement of clauses (2) through (4) and (5)(ii)-(iv) of Section 4.10(b) shall be deemed to be satisfied if a bona fide binding contract committing to make the investment, acquisition or expenditure referred to therein is in the form of the acquisition of Capital Stock that results in entered into by the Company or any Restricted Subsidiary, as the case may bebe (or in the case of clause (5)(ii)-(iv), owning such Joint Venture), with a Person other than an Affiliate of the Company within the time period specified in the preceding paragraph and such Net Proceeds are subsequently applied in accordance with such contract within 180 days following the date such agreement is entered into.
(d) Pending the final application of any Net Proceeds, 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) Any Net Proceeds from Asset Sales that are not applied as provided in Section 4.10(b) will constitute “Excess Proceeds.” When the aggregate amount of Excess Proceeds exceeds $30.0 million, within 30 days thereafter, the Company 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 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 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, 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, 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 use those Excess Proceeds for any purpose not otherwise prohibited hereby. If the aggregate principal amount of Notes and other pari passu 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 pari passu Indebtedness to be purchased, prepaid or redeemed on a pro rata basis (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 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 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 amount of Excess Proceeds will be reset at zero. The Company may satisfy the foregoing obligation with respect to any Excess Proceeds by making an Asset Sale Offer prior to the expiration of the relevant 365-day period or with respect to Excess Proceeds of $30.0 million or less.
(f) 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 those laws and regulations are applicable in connection with each repurchase of Notes pursuant to an Asset Sale Offer. To the extent that the provisions of any securities laws or regulations conflict with this Section 4.10, the Company will comply with the applicable securities laws and regulations and will be deemed not to have breached its obligations under 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 Capital Stock 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 such business such 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 such business constitutes a Restricted Subsidiary or increases cash is fungible and that the Company’s direct or indirect percentage ownership obligations under this Section 4.10 may be satisfied by the application of the Capital Stock of a Restricted Subsidiary;funds from other sources.
Appears in 1 contract
Asset Sales. (a) From and after the Completion Date, the The Company shall not consummatenot, and shall not cause or permit any Subsidiary of its Restricted Subsidiaries to consummatethe Company to, directly or indirectly, consummate an Asset Sale, unless:
; unless (1i) at least 80% of the consideration from such Asset Sale is received in cash and (ii) the Company or such Restricted Subsidiary, as the case may be, Subsidiary receives consideration at the time of such Asset Sale at least equal to the fair market value (as determined in good faith by Fair Market Value of the Company at the time of contractually agreeing shares or assets subject to such Asset Sale) of the assets sold or otherwise disposed of; and
(2) except in the case of a Permitted Asset Swapprovided, if the property or assets sold or otherwise disposed of have a fair market value in excess of the greater of $375.0 million and 50.0% of LTM EBITDA for the most recently ended Test Period at the time of such dispositionhowever, at least 75.0% of the consideration therefor received by the Company or such Restricted Subsidiary, as the case may be, is in the form of cash or Cash Equivalents; provided that the amount of:
of (Ax) any liabilities, contingent liabilities (as shown on the Company’s or otherwise, such Subsidiary’s most recent balance sheet) of the Company or such Restricted Subsidiary, any Subsidiary (other than contingent liabilities and liabilities that are by their terms subordinated to the Notes or Notes) that are owed to the Company or a Restricted Subsidiary that (x) are assumed by the transferee of any such assets (pursuant to any arrangement releasing the Company or a third party in connection with such transfer) or Subsidiary from further liability and (y) are otherwise cancelled or terminated in connection with the transaction with such transferee (other than intercompany debt owed to the Company or its Restricted Subsidiaries) and, in each case, for which the Company and all of its Restricted Subsidiaries have been validly released,
(B) any securities, notes or other obligations or assets received by the Company or any such Restricted Subsidiary from such transferee that are immediately converted by the Company or such Restricted Subsidiary into cash or Cash Equivalents (to the extent of the cash or Cash Equivalents received) within 180 days following the closing of such Asset Sale;
(C) Indebtedness of any Restricted Subsidiary that ceases to be a Restricted Subsidiary as a result of such Asset Sale (other than intercompany debt owed to the Company or any Restricted Subsidiary), to the extent that the Company and each other Restricted Subsidiary are released from any guarantee of payment of the principal amount of such Indebtedness in connection with such Asset Sale in accordance with the terms of this Indenture;
(D) consideration consisting of Indebtedness of the Issuers or a Guarantor (other than intercompany debt owed to the Company or any Restricted Subsidiary and other than Subordinated Indebtedness) received after the Issue Date from Persons who are not the Company, Holdings or any Restricted Subsidiary;
(E) any Designated Non-cash Consideration received by the Company or such Restricted Subsidiary in such Asset Sale having an aggregate fair market value, as determined by the Company, taken together with all other Designated Non-cash Consideration received pursuant to this clause (E) that is at that time outstanding, not to exceed the greater of $225.0 million and 30.0% of LTM EBITDA for the most recently ended Test Period at the time of the receipt of |US-DOCS\143900591.2|| such Designated Non-cash Consideration (with the fair market value of each such item of Designated Non-cash Consideration being measured pursuant to this clause (E) at the Company’s option, either at the time of contractually agreeing to such Asset Sale or at the time received and, in either case, without giving effect to subsequent changes in value); and
(F) any Investment, Capital Stock, assets, property or capital or other expenditure of the kind referred to in clauses (2) or (3) of Section 4.10(b) hereof shall be deemed to be Cash Equivalents cash for purposes of this provision and for no other purposeprovision.
(b) Within 540 270 days after the receipt of any Net Cash Proceeds of any from an Asset Sale (the “Proceeds Application Period”)Sale, the Company may apply such Net Cash Proceeds (i) to the extent required pursuant to the terms thereof, to reduce Indebtedness under the Credit Agreement or (ii) to the acquisition of a controlling interest in another business, the making of a capital expenditure or the acquisition of other long term assets, in each case, to be used or useful in any business of the Company permitted under Section 8.14. Pending the final application of any such Restricted SubsidiaryNet Cash Proceeds under clause (ii) above, the Company may temporarily reduce revolving credit Indebtedness under the Credit Agreement or otherwise invest such Net Cash Proceeds in any manner that is not prohibited by this Agreement. Any Net Cash Proceeds from Asset Sales that are not applied or invested as provided in the first sentence of this paragraph shall be deemed to constitute “Excess Proceeds”. When the aggregate amount of Excess Proceeds exceeds $5.0 million, the Company shall make an Asset Sale Offer pursuant to Section 7.09 hereof to purchase the maximum principal amount of Notes, that may be purchased out of the Excess Proceeds, at their option, may apply an offer price in cash in an amount equal to the Net Proceeds from such Asset Sale,
(1) to reduce, prepay, repay or purchase:
(A) to the extent such Net Proceeds are from an Asset Sale of Collateral, Obligations with Pari Passu Lien Priority (including the Senior Credit Facilities or any Refinancing Indebtedness in respect thereof but other than Indebtedness owed to the Company or any Restricted Subsidiary), and, in the case of revolving obligations, to correspondingly reduce commitments with respect thereto, provided that, to the extent either Issuer or any Restricted Subsidiary will so repay any such Indebtedness (other than the Notes), the Issuers shall reduce Obligations under the Notes on a pro rata basis by, at their option, (i) redeeming Notes as provided under Section 3.07 hereof (ii) purchasing Notes through open-market purchases or (iii) by making an offer (in accordance with the procedures set forth herein for an Asset Sale Offer) to all Holders to purchase their Notes at a purchase price equal to 100.0100% of the principal amount thereof, plus the amount of accrued but and unpaid interest, if any, on the principal amount of the Notes to be repurchased interest thereon to the date of repurchase;
(B) to the extent such Net Proceeds resulted from an Asset Sale not consisting of Collateralpurchase, Obligations in respect of other Secured Indebtedness (which may include the Notes), and, in the case of revolving commitments, to correspondingly reduce commitments with respect thereto;
(C) Obligations in respect of the Notes or any other Indebtedness (other than Subordinated Indebtedness) of the Company or any Restricted Subsidiary, other than Indebtedness owed to the Company or any Restricted Subsidiary (and, in the case of revolving commitments, to correspondingly reduce commitments with respect thereto), provided that, to the extent either Issuer or any Restricted Subsidiary will so repay any such Indebtedness (other than the Notes), the Issuers will reduce Obligations under the Notes on a pro rata basis by, at their option, (i) redeeming Notes as provided under Section 3.07 hereof or (ii) by making an offer (in accordance with the procedures set forth herein for in Section 7.09 hereof. To the extent that the aggregate principal amount of Notes tendered pursuant to an Asset Sale Offer) to all Holders to purchase their Notes at a purchase price equal to 100.0% of Offer is less than the Excess Proceeds, the Company may use any remaining Excess Proceeds for general corporate purposes. If the aggregate principal amount thereof, plus of Notes surrendered by Noteholders thereof exceeds the amount of accrued but unpaid interestExcess Proceeds, if any, on the principal amount of Company shall select the Notes to be repurchased to the date purchased on a pro rata basis. Upon completion of repurchase; or |US-DOCS\143900591.2||
(D) Obligations in respect of Indebtedness of a Non-Guarantor Subsidiary, other than Indebtedness owed to the Company or another Restricted Subsidiary; provided, in the case of clauses (A) or (C) above, (i) if an such offer to purchase any Indebtedness of the Company or any Restricted Subsidiary is madepurchase, such amount will be deemed repaid to the extent of the amount of such offer, whether or not accepted by the holders of such Indebtedness, and no Net Excess Proceeds in the amount of such offer will shall be deemed to exist following such offer, and (ii) if the holder of any Indebtedness of a Restricted Subsidiary of the Company declines the repayment of such Indebtedness owed to it from such Net Proceeds such amount will be deemed repaid to the extent of the declined Net Proceeds, or
(2) 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 that results in the Company or any Restricted Subsidiary, as the case may be, owning an amount of the Capital Stock of such business such that such business constitutes a Restricted Subsidiary or increases the Company’s direct or indirect percentage ownership of the Capital Stock of a Restricted Subsidiary;reset at zero.
Appears in 1 contract
Asset Sales. (a) From and after the Completion Date, the The Company shall not consummatenot, and shall not permit any of its Restricted Subsidiaries Subsidiary to, cause, make or suffer to consummate, exist an Asset Sale, unless:
(1) the Company or such Restricted Subsidiary, as the case may be, receives consideration at the time of such Asset Sale at least equal to the fair market value (as determined in good faith by the Company at the time of contractually agreeing to such Asset Sale) Fair Market Value of the assets sold or otherwise disposed of; and
(2) except in the case of a Permitted Asset Swap, if the property or assets sold or otherwise disposed of have a fair market value in excess of the greater of $375.0 million and 50.0% of LTM EBITDA for the most recently ended Test Period at the time of such disposition, at least 75.075% of the consideration therefor received by the Company or such Restricted Subsidiary, as the case may be, is in the form of cash or Cash Equivalents; provided that . Within 365 days after the amount of:
(A) any liabilities, contingent or otherwise, of the Company or such Restricted Subsidiary, other than liabilities that are by their terms subordinated to the Notes or that are owed to the Company Company’s or a Restricted Subsidiary that (x) are assumed by the transferee of any such assets (or a third party in connection with such transfer) or (y) are otherwise cancelled or terminated in connection with the transaction with such transferee (other than intercompany debt owed to the Company or its Restricted Subsidiaries) and, in each case, for which the Company and all of its Restricted Subsidiaries have been validly released,
(B) any securities, notes or other obligations or assets received by the Company or such Restricted Subsidiary from such transferee that are converted by the Company or such Restricted Subsidiary into cash or Cash Equivalents (to the extent Subsidiary’s receipt of the cash or Cash Equivalents received) within 180 days following the closing of such Asset Sale;
(C) Indebtedness of any Restricted Subsidiary that ceases to be a Restricted Subsidiary as a result of such Asset Sale (other than intercompany debt owed to the Company or any Restricted Subsidiary), to the extent that the Company and each other Restricted Subsidiary are released from any guarantee of payment of the principal amount of such Indebtedness in connection with such Asset Sale in accordance with the terms of this Indenture;
(D) consideration consisting of Indebtedness of the Issuers or a Guarantor (other than intercompany debt owed to the Company or any Restricted Subsidiary and other than Subordinated Indebtedness) received after the Issue Date from Persons who are not the Company, Holdings or any Restricted Subsidiary;
(E) any Designated Non-cash Consideration received by the Company or such Restricted Subsidiary in such Asset Sale having an aggregate fair market value, as determined by the Company, taken together with all other Designated Non-cash Consideration received pursuant to this clause (E) that is at that time outstanding, not to exceed the greater of $225.0 million and 30.0% of LTM EBITDA for the most recently ended Test Period at the time of the receipt of |US-DOCS\143900591.2|| such Designated Non-cash Consideration (with the fair market value of each such item of Designated Non-cash Consideration being measured pursuant to this clause (E) at the Company’s option, either at the time of contractually agreeing to such Asset Sale or at the time received and, in either case, without giving effect to subsequent changes in value); and
(F) any Investment, Capital Stock, assets, property or capital or other expenditure of the kind referred to in clauses (2) or (3) of Section 4.10(b) hereof shall be deemed to be Cash Equivalents for purposes of this provision and for no other purpose.
(b) Within 540 days after the receipt of any Net Proceeds of any Asset Sale covered by this clause (the “Proceeds Application Period”), a) the Company or such Restricted Subsidiary, at their its option, may apply an amount equal to the Net Proceeds from such Asset Sale,:
(1) to reducemake one or more offers to the Holders of the Notes (and, prepayat the option of the Company, repay or purchase:
(Athe holders of other senior Indebtedness) to purchase Notes (and such senior Indebtedness) pursuant to and subject to the extent such Net Proceeds are from conditions contained in this Indenture (each, an “Asset Sale Offer”); provided, however, that in connection with any prepayment, repayment or purchase of CollateralIndebtedness pursuant to this clause (1), Obligations with Pari Passu Lien Priority (including the Senior Credit Facilities or any Refinancing Indebtedness in respect thereof but other than Indebtedness owed to the Company or any Restricted Subsidiary), and, in the case of revolving obligations, to correspondingly reduce commitments with respect thereto, provided that, to the extent either Issuer or any such Restricted Subsidiary will shall permanently retire such Indebtedness; provided, further, that if the Company or such Restricted Subsidiary shall so repay reduce any such senior Indebtedness (other than the Notes), the Issuers Company shall equally and ratably reduce Obligations Indebtedness under the Notes on a pro rata basis by, at their option, (i) redeeming Notes as provided under Section 3.07 hereof (ii) purchasing Notes through open-market purchases or (iii) by making an offer (in accordance with the procedures set forth herein for an Asset Sale Offer) to all Holders of Notes to purchase their Notes at a purchase price equal to 100.0100% of the principal amount thereof, plus the amount of accrued but and unpaid interest and additional interest, if any, on the pro rata principal amount of the Notes Notes, such offer to be repurchased to the date of repurchase;
(B) to the extent such Net Proceeds resulted from an Asset Sale not consisting of Collateral, Obligations in respect of other Secured Indebtedness (which may include the Notes), and, in the case of revolving commitments, to correspondingly reduce commitments with respect thereto;
(C) Obligations in respect of the Notes or any other Indebtedness (other than Subordinated Indebtedness) of the Company or any Restricted Subsidiary, other than Indebtedness owed to the Company or any Restricted Subsidiary (and, in the case of revolving commitments, to correspondingly reduce commitments with respect thereto), provided that, to the extent either Issuer or any Restricted Subsidiary will so repay any such Indebtedness (other than the Notes), the Issuers will reduce Obligations under the Notes on a pro rata basis by, at their option, (i) redeeming Notes as provided under Section 3.07 hereof or (ii) by making an offer (conducted in accordance with the procedures set forth herein below for an Asset Sale Offer) to all Holders to purchase their Notes at a purchase price equal to 100.0% of the principal amount thereof, plus the amount of accrued Offer but unpaid interest, if any, on the principal amount of the Notes to be repurchased to the date of repurchase; or |US-DOCS\143900591.2||
(D) Obligations without any further limitation in respect of Indebtedness of a Non-Guarantor Subsidiary, other than Indebtedness owed to the Company or another Restricted Subsidiary; provided, in the case of clauses (A) or (C) above, (i) if an offer to purchase any Indebtedness of the Company or any Restricted Subsidiary is made, such amount will be deemed repaid to the extent of the amount of such offer, whether or not accepted by the holders of such Indebtedness, and no Net Proceeds in the amount of such offer will be deemed to exist following such offer, and (ii) if the holder of any Indebtedness of a Restricted Subsidiary of the Company declines the repayment of such Indebtedness owed to it from such Net Proceeds such amount will be deemed repaid to the extent of the declined Net Proceeds, oramount;
(2) to make an Investment investment in (Aa) any one or more businesses, ; provided that such Investment investment in any business is in the form of the acquisition of Capital Stock that and results in the Company or any a Restricted Subsidiary, as the case may be, owning an amount of the Capital Stock of such business such that such business it constitutes a Restricted Subsidiary Subsidiary, (b) capital expenditures or increases the Company’s direct (c) acquisitions of other assets, in each of (a), (b) and (c), used or indirect percentage ownership of the Capital Stock useful in a Similar Business; or
(3) to reduce Indebtedness of a Restricted Subsidiary;, other than Indebtedness owed to the Company or another Restricted Subsidiary; provided that the acquisition of Indebtedness of a Restricted Subsidiary by the Company shall constitute a reduction in such Indebtedness. Any Net Proceeds that are not invested or applied as provided and within the time period set forth in the first sentence of the immediately preceding paragraph shall be deemed to constitute “Excess Proceeds.” In the case of clause (2) above, 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 635 days after receipt by the Company or any Restricted Subsidiary of the Net Proceeds of any Asset Sale and (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 be Excess Proceeds. When the aggregate amount of Excess Proceeds exceeds $25.0 million, the Company shall make an Asset Sale Offer to all Holders of the Notes, and, if required by the terms of any senior Indebtedness, to the holders of such senior Indebtedness, to purchase the maximum principal amount of Notes and such other senior Indebtedness, that are $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, but not including, the date fixed for the closing of such offer, in accordance with the procedures set forth in this Indenture. The Company shall commence an Asset Sale Offer with respect to Excess Proceeds within 30 days after the date that Excess Proceeds exceed
Appears in 1 contract
Sources: Indenture (Aircastle LTD)
Asset Sales. (a) From and after the Completion Date, the The Company shall not consummatewill not, and shall will not permit any of its Restricted Subsidiaries to consummateto, consummate an Asset Sale, unless:
(1) the Company or such Restricted Subsidiary, as the case may be, receives consideration at the time of such Asset Sale at least equal to the fair market value (as such fair market value to be determined in good faith by the Company Company, including its board of directors if such fair market value is in excess of $100,000,000, at the time of contractually agreeing to such Asset Sale) of the assets sold or otherwise disposed of; and
(2) except in the case of a Permitted Asset Swap, if the property or assets sold or otherwise disposed of have a fair market value in excess of the greater of $375.0 million and 50.0% of LTM EBITDA for the most recently ended Test Period at the time of such disposition, at least 75.075% of the consideration therefor received by the Company or such Restricted Subsidiary, as the case may be, is in the form of cash or Cash Equivalents; provided that the amount of:
(A) any liabilities, contingent liabilities (as shown on the Company’s or otherwise, such Restricted Subsidiary’s most recent balance sheet or in the footnotes thereto) of the Company or such Restricted Subsidiary, other than liabilities that are by their terms subordinated to the Notes or that are owed to the Company or a Restricted Subsidiary Subsidiary, that (x) are assumed by the transferee of any such assets (or a third party in connection with such transfer) or (y) are otherwise cancelled or terminated in connection with the transaction with such transferee (other than intercompany debt owed to the Company or its Restricted Subsidiaries) and, in each case, for which the Company and all of its Restricted Subsidiaries have been validly releasedreleased by all creditors in writing,
(B) any securities, notes or other obligations or assets received by the Company or such Restricted Subsidiary from such transferee that are converted by the Company or such Restricted Subsidiary into cash or Cash Equivalents (to the extent of the cash or Cash Equivalents received) within 180 days following the closing of such Asset Sale;, and
(C) Indebtedness of any Restricted Subsidiary that ceases to be a Restricted Subsidiary as a result of such Asset Sale (other than intercompany debt owed to the Company or any Restricted Subsidiary), to the extent that the Company and each other Restricted Subsidiary are released from any guarantee of payment of the principal amount of such Indebtedness in connection with such Asset Sale in accordance with the terms of this Indenture;Sale, and
(D) consideration consisting of Indebtedness of the Issuers or a Guarantor any (other than intercompany debt owed to the Company or any Restricted Subsidiary and other than Subordinated Indebtednessi) received after the Issue Date from Persons who are not the Company, Holdings or any Restricted Subsidiary;
(E) any Designated Non-cash Cash Consideration received by the Company or such Restricted Subsidiary in such Asset Sale having an aggregate fair market value, as determined by the CompanyCompany in good faith, taken together with all other Designated Non-cash Cash Consideration received pursuant to this clause (ED)(i) that is at that time outstanding, not to exceed the greater of $225.0 million and 30.05.0% of LTM EBITDA for the most recently ended Test Period Total Assets at the time of the receipt of |US-DOCS\143900591.2|| such Designated Non-cash Consideration Cash Consideration, or (ii) any Investment (not constituting a Permitted Asset Swap) received by the Company or a Restricted Subsidiary that is treated by the Company as a Restricted Payment under Section 4.07(a) or 4.07(b) hereof or a Permitted Investment under clause (8), (13) or (26) of the definition thereof, with the fair market value of each such item of Designated Non-cash Consideration Cash Consideration, Restricted Payment or Permitted Investment being measured pursuant to this clause (ED) at the Company’s option, either at the time of contractually agreeing to such Asset Sale or at the time received and, in either case, and without giving effect to subsequent changes in value); and
(F) any Investment, Capital Stock, assets, property or capital or other expenditure of the kind referred to in clauses (2) or (3) of Section 4.10(b) hereof shall be deemed to be Cash Equivalents for purposes of this provision and for no other purpose.
(b) Within 540 450 days after the receipt of any Net Proceeds of any Asset Sale (the “Proceeds Application Period”)Sale, the Company or such Restricted Subsidiary, at their its option, may apply an amount equal to the Net Proceeds from such Asset Sale,:
(1) to permanently reduce, prepay, repay or purchase:
(A) Obligations constituting First Lien Obligations and, if the Indebtedness repaid is revolving credit facilities or other similar Indebtedness, to the extent such Net Proceeds are from an Asset Sale of Collateral, Obligations correspondingly permanently reduce commitments with Pari Passu Lien Priority respect thereto (including the Senior Credit Facilities or any Refinancing Indebtedness in respect thereof but other than Indebtedness Obligations owed to the Company or any a Restricted Subsidiary), and, in the case of revolving obligations, to correspondingly reduce commitments with respect thereto, ; provided that, that (x) to the extent either Issuer or any Restricted Subsidiary will so repay any such Indebtedness that the terms of First Lien Obligations (other than Obligations under the Notes) require that such First Lien Obligations be repaid with the Net Proceeds of Asset Sales prior to repayment of other Indebtedness (including the Notes), the Issuers Company and its Restricted Subsidiaries shall be entitled to repay such other First Lien Obligations prior to repaying the Obligations under the Notes and (y) except as provided in the foregoing clause (x), if the Company or any Restricted Subsidiary shall so reduce First Lien Obligations, the Company will equally and ratably reduce Obligations under the Notes on a pro rata basis by, at their option, (i) redeeming Notes as provided under in Section 3.07 hereof (ii) purchasing Notes through open-market purchases (provided that such purchases are at or (iiiabove 100% of the principal amount thereof) or by making an offer (in accordance with the procedures set forth herein for an Asset Sale Offer) to all Holders to purchase their Notes at a purchase price equal to 100.0100% of the principal amount thereof, plus the amount of accrued but and unpaid interest, if any, interest on the principal amount of the Notes to be repurchased to the date of repurchaseso purchased;
(B) to Obligations ranking pari passu with the extent such Notes other than First Lien Obligations so long as the relevant Net Proceeds resulted from an Asset Sale not consisting of Collateral, Obligations in respect of other Secured Indebtedness (which may include the Notes), and, in the case of revolving commitments, to correspondingly reduce commitments are received with respect thereto;
(C) Obligations in respect of the Notes or any other Indebtedness (other than Subordinated Indebtedness) of the Company or any Restricted Subsidiary, other than Indebtedness owed to non-Collateral; provided that if the Company or any Restricted Subsidiary (and, in the case of revolving commitments, to correspondingly shall so reduce commitments with respect thereto), provided that, to the extent either Issuer or any Restricted Subsidiary will so repay any such Indebtedness (other than the Notes)pari passu Obligations, the Issuers Company will equally and ratably reduce or offer to reduce Obligations under the Notes on a pro rata basis by, at their option, (i) redeeming Notes as provided under Section 3.07 hereof or (ii) by making an offer (in accordance with the procedures any manner set forth herein for an Asset Sale Offerin clause (A) to all Holders to purchase their Notes at a purchase price equal to 100.0% of the principal amount thereof, plus the amount of accrued but unpaid interest, if any, on the principal amount of the Notes to be repurchased to the date of repurchaseabove; or |US-DOCS\143900591.2||or
(DC) Obligations in respect of Indebtedness of a Non-Guarantor SubsidiaryRestricted Subsidiary that is not a Guarantor, other than Indebtedness owed to the Company or another Restricted Subsidiary; provided, in the case of clauses (A) or (C) above, (i) if an offer to purchase any Indebtedness of the Company or any Restricted Subsidiary is made, such amount will be deemed repaid to the extent of the amount of such offer, whether or not accepted by the holders of such Indebtedness, and no Net Proceeds in the amount of such offer will be deemed to exist following such offer, and (ii) if the holder of any Indebtedness of a Restricted Subsidiary of the Company declines the repayment of such Indebtedness owed to it from such Net Proceeds such amount will be deemed repaid to the extent of the declined Net Proceeds, or;
(2) to make (a) 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 that results in the Company or any of its Restricted SubsidiarySubsidiaries, as the case may be, owning an amount of the Capital Stock of such business such that such business it constitutes a Restricted Subsidiary or increases the Company’s direct or indirect percentage ownership of the Capital Stock of a Restricted Subsidiary;, (b) capital expenditures or (c) acquisitions of other assets, in the case of each of (a), (b) and (c), used or useful in a Similar Business; provided that the assets (including Capital Stock) acquired with the Net Proceeds of a disposition of Collateral are pledged as Collateral to the extent required under the Security Documents (except to the extent the Lien thereon is released by the lenders under the Senior Credit Facilities); 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 that results in the Company or any of its Restricted Subsidiaries, as the case may be, owning an amount of the Capital Stock of such business such that it constitutes a Restricted Subsidiary or increases the Company’s direct or indirect percentage ownership of the Capital Stock of a Restricted Subsidiary, (b) properties or (c) acquisitions of other assets 100 that, in the case of each of (a), (b) and (c), replace the businesses, properties or assets that are the subject of such Asset Sale; provided that the assets (including Capital Stock) acquired with the Net Proceeds of a disposition of Collateral are pledged as Collateral to the extent required under the Security Documents (except to the extent the Lien thereon is released by the lenders under the Senior Credit Facilities); provided that, in the case of clauses (2) and (3) of this Section 4.10, a binding commitment entered into not later than such 450th day shall extend the period for such Investment or other payment for an additional 180 days after the end of such 450-day period so long as the Company 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 Company or such Restricted Subsidiary enters into another Acceptable Commitment (a “Second Commitment”) within such 180-day period; provided further that (x) if any Second Commitment is later cancelled or terminated for any reason before such Net Proceeds are applied or (y) such Net Proceeds are not actually so invested or paid in accordance with clauses (2) or (3) of this Section 4.10 by the end of such 180-day period, then such Net Proceeds shall constitute Excess Proceeds on the date of such cancellation or termination, or such 180th day, as applicable.
(c) Any Net Proceeds from any Asset Sale that are not invested or applied as provided and within the time period set forth in the preceding paragraph will be deemed to constitute “Excess Proceeds.” When the aggregate amount of Excess Proceeds exceeds $100,000,000, the Company shall make an offer to all Holders of the Notes and, if required by the terms of any indebtedness that is pari passu in right of payment with the Notes (“Pari Passu Indebtedness”), to the holders of such Pari Passu Indebtedness (an “Asset Sale Offer” in accordance with Section 3.09 hereof), to purchase the maximum aggregate principal amount of the Notes and such Pari Passu Indebtedness that is in an amount equal to at least $2,000, 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 accreted value thereof, if less), 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 Company will commence an Asset Sale Offer with respect to Excess Proceeds within ten Business Days after the date that Excess Proceeds exceed $100,000,000 by delivering the notice required pursuant to the terms of this Indenture, with a copy to the Trustee. The Company 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 450 days (or such longer period provided above) or with respect to Excess Proceeds of $100,000,000 or less in accordance with Section 3.09 hereof.
(d) To the extent that the aggregate principal amount of Notes and such Pari Passu Indebtedness tendered pursuant to an Asset Sale Offer is less than the Excess Proceeds, the Company may use any remaining Excess Proceeds for general corporate purposes, subject to the other covenants contained in this Indenture. If the aggregate principal amount of Notes or the Pari Passu Indebtedness surrendered by such holders thereof exceeds the amount of Excess 101 Proceeds, the Trustee shall select the Notes and the Company shall select such Pari Passu Indebtedness to be purchased on a pro rata basis based on the accreted value or principal amount of the Notes or such Pari Passu Indebtedness tendered. Upon completion of any such Asset Sale Offer, the amount of Excess Proceeds that resulted in the Asset Sale Offer shall be reset to zero.
(e) Pending the final application of any Net Proceeds pursuant to this covenant, the Company and its Restricted Subsidiaries may apply such Net Proceeds temporarily to reduce Indebtedness outstanding under a revolving credit facility or otherwise use or invest such Net Proceeds in any manner not prohibited by this Indenture. The Company will comply with the requirements of Rule 14e-1 under the Exchange Act and any other securities laws and regulations thereunder to the extent such laws or regulations are applicable in connection with the repurchase of the Notes pursuant to an Asset Sale Offer. To the extent that the provisions of any securities laws or regulations conflict with the provisions of this Indenture, the Company will comply with the applicable securities laws and regulations and shall not be deemed to have breached its obligations under this Indenture by virtue of such compliance. The provisions under this Indenture relative to the Company’s obligation to make an offer to repurchase the Notes as a result of an Asset Sale may be waived or modified with the written consent of the Holders of a majority in principal amount of the Notes then outstanding.
Appears in 1 contract
Sources: Indenture (Sabre Corp)
Asset Sales. (a) From and after the Completion Date, the Company Holdings shall not consummatenot, and shall not permit any of its Restricted Subsidiaries to consummateto, cause or make an Asset Sale, unless:
unless (1x) the Company Holdings or such any of its Restricted SubsidiarySubsidiaries, as the case may be, receives consideration at the time of such Asset Sale at least equal to the fair market value Fair Market Value (as determined in good faith by the Company at the time of contractually agreeing to such Asset SaleCompany) of the assets sold or otherwise disposed of; and
of and (2y) except in the case of a Permitted Asset Swap, if the property or assets sold or otherwise disposed of have a fair market value in excess of the greater of $375.0 million and 50.0% of LTM EBITDA for the most recently ended Test Period at the time of such disposition, at least 75.075% of the consideration therefor received by the Company Holdings or such Restricted Subsidiary, as the case may be, is in the form of cash or Cash Equivalents; provided that the amount of:
(Ai) any liabilities, contingent or otherwise, of the Company liabilities (as shown on Holdings’ or such Restricted Subsidiary, ’s most recent balance sheet or in the notes thereto) of Holdings or any Restricted Subsidiary of Holdings (other than liabilities that are by their terms subordinated to the Notes or Securities) that are owed to the Company or a Restricted Subsidiary that (x) are assumed by the transferee of any such assets (or a third party in connection with such transfer) or (y) are otherwise cancelled or terminated in connection with the transaction with such transferee (other than intercompany debt owed to the Company or its Restricted Subsidiaries) and, in each case, for which the Company and all of its Restricted Subsidiaries have been validly releasedassets,
(Bii) any securities, notes or other obligations or other securities or assets received by the Company Holdings or such Restricted Subsidiary of Holdings from such transferee that are converted by the Company Holdings or such Restricted Subsidiary of Holdings into cash or Cash Equivalents within 180 days of the receipt thereof (to the extent of the cash or Cash Equivalents received) within 180 days following the closing of such Asset Sale;), and
(C) Indebtedness of any Restricted Subsidiary that ceases to be a Restricted Subsidiary as a result of such Asset Sale (other than intercompany debt owed to the Company or any Restricted Subsidiary), to the extent that the Company and each other Restricted Subsidiary are released from any guarantee of payment of the principal amount of such Indebtedness in connection with such Asset Sale in accordance with the terms of this Indenture;
(D) consideration consisting of Indebtedness of the Issuers or a Guarantor (other than intercompany debt owed to the Company or any Restricted Subsidiary and other than Subordinated Indebtedness) received after the Issue Date from Persons who are not the Company, Holdings or any Restricted Subsidiary;
(Eiii) any Designated Non-cash Consideration received by the Company Holdings or such any of its Restricted Subsidiary Subsidiaries in such Asset Sale having an aggregate fair market value, as determined by the CompanyFair Market Value, taken together with all other Designated Non-cash Consideration received pursuant to this clause (Eiii) that is at that time outstanding, not to exceed the greater of $225.0 million and 30.05% of LTM EBITDA for the most recently ended Test Period Total Assets at the time of the receipt of |US-DOCS\143900591.2|| such Designated Non-cash Consideration (with the fair market value Fair Market Value of each such item of Designated Non-cash Consideration being measured pursuant to this clause (E) at the Company’s option, either at the time of contractually agreeing to such Asset Sale or at the time received and, in either case, and without giving effect to subsequent changes in value); and
(F) any Investment, Capital Stock, assets, property or capital or other expenditure of the kind referred to in clauses (2) or (3) of Section 4.10(b) hereof shall be deemed to be Cash Equivalents for the purposes of this provision and for no other purposeSection 4.06(a).
(b) Within 540 365 days after the Holdings’ or any Restricted Subsidiary of Holdings’ receipt of any the Net Proceeds of any Asset Sale (the “Proceeds Application Period”)Sale, the Company Holdings or such Restricted Subsidiary, at their option, Subsidiary may apply an amount equal to the Net Proceeds from such Asset Sale,
(1) to reduce, prepay, repay or purchaseat its option:
(Ai) to the extent such Net Proceeds are from an Asset Sale of Collateralpermanently reduce Obligations, Obligations with Pari Passu Lien Priority (including the Senior Credit Facilities or any Refinancing Indebtedness in respect thereof but other than Indebtedness owed to Holdings or an Affiliate of Holdings, under (A) the Company or any Restricted Subsidiary), Senior Credit Facilities and other Obligations secured by a Lien which is permitted by this Indenture (and, in the case of revolving obligationsObligations, to correspondingly reduce commitments with respect thereto, ) or (B) other Pari Passu Indebtedness (provided that, to that if the extent either Issuer Company or any Restricted Subsidiary will Guarantor shall so repay any such Indebtedness (reduce Obligations under other than the Notes)Pari Passu Indebtedness, the Issuers Company shall equally and ratably reduce Obligations under the Notes on a pro rata basis by, at their option, (i) redeeming Notes as provided under Section 3.07 hereof (ii) purchasing Notes through open-market purchases or (iii) Securities by making an offer (in accordance with the procedures set forth herein below for an Asset Sale Offer) to all Holders to purchase their Notes at a purchase price equal to 100.0100% of the principal amount thereof, plus accrued and unpaid interest the amount of accrued but unpaid interest, if any, on the pro rata principal amount of the Notes to be repurchased to the date of repurchase;
(B) to the extent such Net Proceeds resulted from an Asset Sale not consisting of Collateral, Obligations in respect of other Secured Indebtedness (which may include the Notes), and, in the case of revolving commitments, to correspondingly reduce commitments with respect thereto;
(C) Obligations in respect of the Notes or any other Indebtedness (other than Subordinated Indebtedness) of the Company or any Restricted Subsidiary, other than Indebtedness owed to the Company or any Restricted Subsidiary (and, in the case of revolving commitments, to correspondingly reduce commitments with respect thereto), provided that, to the extent either Issuer or any Restricted Subsidiary will so repay any such Indebtedness (other than the Notes), the Issuers will reduce Obligations under the Notes on a pro rata basis by, at their option, (i) redeeming Notes as provided under Section 3.07 hereof or (ii) by making an offer (in accordance with the procedures set forth herein for an Asset Sale Offer) to all Holders to purchase their Notes at a purchase price equal to 100.0% of the principal amount thereof, plus the amount of accrued but unpaid interest, if any, on the principal amount of the Notes to be repurchased to the date of repurchase; or |US-DOCS\143900591.2||
(D) Obligations in respect of Indebtedness of a Non-Guarantor Subsidiary, other than Indebtedness owed to the Company or another Restricted Subsidiary; provided, in the case of clauses (ASecurities) or (C) above, (i) if an offer to purchase any Indebtedness of the Company or any Restricted Subsidiary is made, such amount will be deemed repaid to the extent of the amount of such offer, whether or not accepted by the holders of such Indebtedness, and no Net Proceeds in the amount of such offer will be deemed to exist following such offer, and (ii) if the holder of any Indebtedness of a Restricted Subsidiary of the Company declines the repayment of such Indebtedness owed to it from such Net Proceeds such amount will be deemed repaid to the extent of the declined Net Proceeds, orthat is not a Guarantor,
(2ii) to make an Investment investment in (A) any one or more businesses, businesses (provided that if such Investment in any business investment is in the form of the acquisition of Capital Stock that of a Person, such acquisition results in the Company or any Restricted Subsidiary, as the case may be, owning an amount of the Capital Stock of such business such that such business constitutes Person becoming a Restricted Subsidiary of Holdings), or increases capital expenditures, in each case used or useful in a Similar Business, and/or
(iii) to make an investment in any one or more businesses (provided that if such investment is in the Company’s direct or indirect percentage ownership form of the acquisition of Capital Stock of a Person, such acquisition results in such Person becoming a Restricted Subsidiary;Subsidiary of Holdings), properties or assets that replace the properties and assets that are the subject of such Asset Sale. Pending the final application of any such Net Proceeds, Holdings or such Restricted Subsidiary of Holdings may temporarily reduce Indebtedness under a revolving credit facility, if any, or otherwise invest such Net Proceeds in Cash Equivalents or Investment Grade Securities. Any Net Proceeds from any Asset Sale that are not applied as provided and within the time period set forth in the first sentence of this Section 4.06(b) (it being understood that any portion of such Net Proceeds 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 aggregate amount of Excess Proceeds exceeds $20 million, the Company shall make an offer to all Holders of Securities (an “Asset Sale Offer”) to purchase the maximum principal amount of Securities that is an integral multiple of $2,000 or €1,000, as applicable, 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 Section 4.06. The Company shall commence an Asset Sale Offer with respect to Excess Proceeds within ten Business Days after the date that Excess Proceeds exceeds $20 million by delivering by electronic transmission or mailing the notice required pursuant to the terms of Section 4.06(f), with a copy to the Trustee. To the extent that the aggregate amount of Securities tendered pursuant to an Asset Sale Offer is less than the Excess Proceeds, the Company may use any remaining Excess Proceeds for general corporate purposes. If the aggregate principal amount of Securities surrendered by Holders 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 Asset Sale Offer, the amount of Excess Proceeds shall be reset at zero.
(c) The Company shall comply with the requirements of Rule 14e-1 under the Exchange Act and any other securities laws and regulations to the extent such laws or regulations are applicable in connection with the repurchase of the Securities pursuant to an Asset Sale Offer. To the extent that the provisions of any securities laws or regulations conflict with the provisions of this Indenture, the Company shall comply with the applicable securities laws and regulations and shall not be deemed to have breached its obligations described in this Indenture by virtue thereof.
(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 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 4.06. 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 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 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 Securities 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 or otherwise in compliance with the rules of DTC, Euroclear and Clearstream, as applicable); provided that no Dollar Securities of $2,000 or less or Euro Securities of €1,000 or less shall be purchased in part.
(f) Notices of an Asset Sale Offer shall be delivered by electronic transmission 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 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 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 1 contract
Sources: Indenture (Nalco Holding CO)
Asset Sales. (a) From and after the Completion Date, the The Company shall not consummatenot, and shall not permit any of its Restricted Subsidiaries to consummateto, consummate an Asset Sale, Sale unless:
(1i) the Company (or such 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 Fair Market Value (as determined in good faith determined, for purposes of this clause (i), by the Company at or, in the time case of contractually agreeing to such Asset Saleany asset(s) valued in excess of $750.0 million, by the Board of Directors of the Company) of the assets or Equity Interests issued or sold or otherwise disposed of; and
(2ii) except in the case of a Permitted Asset Swap, if the property or assets sold or otherwise disposed of have a fair market value in excess of the greater of $375.0 million and 50.0% of LTM EBITDA for the most recently ended Test Period at the time of such disposition, at least 75.075% of the consideration therefor received in the Asset Sale by the Company or such Restricted Subsidiary, as the case may be, Subsidiary is in the form of cash or Cash Equivalents; provided that . For purposes of this provision, each of the amount offollowing will be deemed to be cash:
(A) any liabilities, contingent or otherwiseas shown on the Company’s most recent consolidated balance sheet, of the Company or such any Restricted Subsidiary, Subsidiary (other than contingent liabilities and liabilities that are by their terms subordinated to the Notes or and the Note Guarantees) (i) that are owed to the Company or a Restricted Subsidiary that (x) are assumed by the transferee of any such assets (or a third party in connection with such transfer) or (y) are otherwise cancelled or terminated in connection with the transaction with such transferee (other than intercompany debt owed pursuant to an agreement that releases the Company or its such Restricted SubsidiariesSubsidiary from further liability or (ii) and, that are discharged by the transferee in each case, for a transaction pursuant to which neither the Company and all of its nor any Restricted Subsidiaries have been validly released,Subsidiary has any liability following such Asset Sale;
(B) any securities, notes or other obligations or assets received by the Company or any such Restricted Subsidiary from such transferee that are converted by the Company or such Restricted Subsidiary into cash or Cash Equivalents (within 180 days after the consummation of the applicable Asset Sale, to the extent of the cash or Cash Equivalents received) within 180 days following the closing of such Asset Salereceived in that conversion;
(C) Indebtedness of any Restricted Subsidiary that ceases to be a Restricted Subsidiary as a result of such Asset Sale (other than intercompany debt owed to the Company or any Restricted Subsidiary), to the extent that the Company and each other Restricted Subsidiary are released from any guarantee of payment of the principal amount of such Indebtedness in connection with such Asset Sale in accordance with the terms of this Indenture;
(D) consideration consisting of Indebtedness of the Issuers or a Guarantor (other than intercompany debt owed to the Company or any Restricted Subsidiary and other than Subordinated Indebtedness) received after the Issue Date from Persons who are not the Company, Holdings or any Restricted Subsidiary;
(E) any Designated Non-cash Noncash Consideration received by the Company or such Restricted Subsidiary in such Asset Sale having an aggregate fair market valueFair Market Value that, as determined by the Company, when taken together with all other Designated Non-cash Noncash Consideration previously received pursuant to this clause (E) that is at that time and then outstanding, does not to exceed the greater of $225.0 million and 30.0% of LTM EBITDA for the most recently ended Test Period at the time of the receipt of |US-DOCS\143900591.2|| such Designated Non-cash Noncash Consideration (with the fair market value Fair Market Value of each such item of Designated Non-cash Noncash Consideration being measured pursuant to this clause (E) at the Company’s option, either at the time of contractually agreeing to such Asset Sale or at the time received and, in either case, and without giving effect to subsequent changes in value)) the greater of $800.0 million or 3.0% of Consolidated Total Assets; and
(FD) any Investment, Capital Stock, assets, property or capital or other expenditure of the kind referred to in clauses (2) or (3) of Section 4.10(b) hereof shall be deemed future payments to be made in cash or Cash Equivalents for purposes owed to the Company or a Restricted Subsidiary in the form of this provision and for no other purposelicensing, royalty, earnout or Milestone Payment (or similar deferred cash payments).
(b) Within 540 450 days after the receipt of any Net Proceeds of any from an Asset Sale (the “Proceeds Application Period”)Sale, the Company or such the applicable Restricted Subsidiary, at their option, Subsidiary may apply an amount equal to the those Net Proceeds from such Asset Sale,
(1) to reduce, prepay, repay or purchaseProceeds:
(Ai) to repay (x) Indebtedness and other Obligations under the extent such Net Proceeds are from an Asset Sale of Collateral, Obligations with Pari Passu Lien Priority (including the Senior Credit Facilities or any Refinancing Indebtedness in respect thereof but other than Indebtedness owed to the Company or any Restricted Subsidiary), Agreement and, in if the case of Indebtedness repaid under the Credit Agreement is revolving obligationscredit Indebtedness, to correspondingly reduce commitments with respect thereto, provided that, to (y) Indebtedness and other Obligations under the extent either Issuer Notes or any Restricted Subsidiary will so repay any such Pari Passu Indebtedness (other than the NotesCredit Agreement) and, if the Pari Passu Indebtedness being repaid is revolving credit Indebtedness, to correspondingly reduce commitments with respect thereto (provided that if such Net Proceeds are applied to repay such Pari Passu Indebtedness under this clause (y), the Issuers Company shall equally and ratably reduce Obligations obligations under the Notes on a pro rata basis byin accordance with Section 3.7 hereof, at their option, (i) redeeming Notes as provided under Section 3.07 hereof (ii) purchasing Notes through open-privately negotiated transactions or open market purchases (in each case, provided that such purchases are at or (iii) above 100% of the principal amount thereof), or by making an offer (in accordance with the procedures set forth herein for an Asset Sale OfferSection 4.14(c)) to all Holders to purchase their Notes purchase, at a purchase price equal to 100.0100% of the principal amount thereof, plus the amount of accrued but and unpaid interest, if any, on the pro rata principal amount of the Notes to be repurchased to the date of repurchase;
(BNotes) to the extent such Net Proceeds resulted from an Asset Sale not consisting of Collateral, Obligations in respect of other Secured Indebtedness (which may include the Notes), and, in the case of revolving commitments, to correspondingly reduce commitments with respect thereto;
(C) Obligations in respect of the Notes or any other Indebtedness (other than Subordinated Indebtedness) of the Company or any Restricted Subsidiary, other than Indebtedness owed to the Company or any Restricted Subsidiary (and, in the case of revolving commitments, to correspondingly reduce commitments with respect thereto), provided that, to the extent either Issuer or any Restricted Subsidiary will so repay any such Indebtedness (other than the Notes), the Issuers will reduce Obligations under the Notes on a pro rata basis by, at their option, (i) redeeming Notes as provided under Section 3.07 hereof or (iiz) by making an offer (in accordance with the procedures set forth herein for an Asset Sale Offer) to all Holders to purchase their Notes at a purchase price equal to 100.0% of the principal amount thereof, plus the amount of accrued but unpaid interest, if any, on the principal amount of the Notes to be repurchased to the date of repurchase; or |US-DOCS\143900591.2||
(D) Obligations in respect of other Indebtedness of a Non-Guarantor Subsidiary, other than Indebtedness owed so long as the relevant assets were assets of such Subsidiary;
(ii) to acquire all or substantially all of the assets of, or a majority of the Voting Stock of, another Permitted Business or the minority interest in any Permitted Business;
(iii) to make payments with respect to the Company acquisition or another Restricted Subsidiary; providedlicense of intellectual property rights that are used in a Permitted Business;
(iv) to make a capital expenditure in or that is useful in a Permitted Business;
(v) to retire Notes (x) pursuant to Section 3.7 hereof, in the case of clauses (Ay) through privately negotiated transactions or open market purchases or (Cz) above, (i) if by making an offer to purchase Notes in accordance with Section 4.14(c); or
(vi) to acquire other assets (other than cash and Cash Equivalents) that are used or useful in a Permitted Business; provided that (1) a binding commitment to apply any Indebtedness Net Proceeds from an Asset Sale as set forth in clauses (ii), (iii), (iv) or (vi) of this Section 4.14(b) shall be treated as a permitted application of the Net Proceeds from the date of such commitment so long as the Company or any such Restricted Subsidiary is made, enters into such amount commitment with the good faith expectation that such Net Proceeds will be deemed repaid applied to satisfy such commitment within 180 days of the end of such 450-day period (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 above before the expiration of such 180-day period and, in the event the Company or such Restricted Subsidiary fails to do so, then such Net Proceeds shall constitute Excess Proceeds and (2) the Company may elect to deem certain expenditures that would otherwise be permissible reinvestments but that occurred prior to the receipt of the applicable Net Proceeds as having been reinvested in accordance with the provisions of this Section 4.14, but only to the extent such deemed expenditure shall have been made no earlier than the earlier of the execution of a definitive agreement with respect to such Asset Sale or the consummation thereof. Notwithstanding anything in this Section 4.14 to the contrary, the Company shall not be required to apply any amount that would otherwise be required to be applied pursuant to this Section 4.14 to the extent that the Asset Sale (x) is consummated by any Foreign Subsidiary for so long as the Company determines in good faith that the repatriation to the Company of any such amount would be prohibited or delayed (beyond the time period during which such application is otherwise required to be made pursuant hereto) under any requirement of law or conflict with the fiduciary duties of such offerForeign Subsidiary’s directors, whether or not accepted by the holders result in, or could reasonably be expected to result in, a material risk of personal or criminal liability for any officer, director, employee, manager, member of management or consultant of such IndebtednessForeign Subsidiary (including on account of financial assistance, corporate benefit, thin capitalization, capital maintenance or similar considerations); it being understood and agreed that (i) solely within 365 days following the event giving rise to the relevant Net Proceeds, the Company shall take all commercially reasonable actions required by applicable requirements of law to permit such repatriation and, to the extent applicable, would no Net Proceeds in longer conflict with the amount fiduciary duties of such offer will director, or result in, or be deemed reasonably expected to exist following such offerresult in, a material risk of personal or criminal liability for the Persons described above, in either case, and (ii) if such repatriation is permitted or would no longer so conflict, within 365 days following the holder event giving rise to the relevant Net Proceeds, the relevant Foreign Subsidiary will promptly repatriate the relevant Net Proceeds, and the repatriated Net Proceeds will be promptly (and in any event not later than two Business Days after such repatriation) applied (net of additional taxes payable or reserved against such Net Proceeds, as a result thereof, in each case by the Company or the Company’s subsidiaries, and any Indebtedness of a Restricted Subsidiary Affiliates or indirect or direct equity owners of the foregoing) as required above, or (y) generates Net Proceeds that are received by any joint venture for so long as the Company declines determines in good faith that the repayment distribution of such Indebtedness owed to it from such Net Proceeds would be prohibited under the organizational documents (or any relevant shareholders’ or similar agreement) governing such amount will be deemed repaid joint venture; it being understood that if the relevant prohibition ceases to exist within the 365-day period following the event giving rise to the extent of the declined relevant Net Proceeds, or
(2) to make an Investment in (A) any one or more businesses, provided that such Investment in any business is in the form of relevant joint venture will promptly distribute the acquisition of Capital Stock that results in the Company or any Restricted SubsidiaryNet Proceeds, as the case may be, owning and the Net Proceeds, as the case may be, will be promptly (and in any event not later than ten Business Days after such distribution) applied (net of additional taxes payable or reserved against as a result thereof) as set forth above. In addition, if the Company determines in good faith that the repatriation (or other intercompany distribution) to the Company of any amounts required to be applied as set forth above would result in material and adverse tax consequences for the Company or any of its subsidiaries, Affiliates or indirect or direct equity owners, taking into account any foreign tax credit or benefit actually realized in connection with such repatriation (such amount, a “Restricted Amount”), as determined by the Company in good faith, the amount the Company shall be required to apply as set forth above shall be reduced by the Restricted Amount; provided that to the extent that the repatriation (or other intercompany distribution) of any Net Proceeds from the relevant Foreign Subsidiary would no longer have a material and adverse tax consequence within the 365-day period following the event giving rise to the Net Proceeds, an amount equal to the Net Proceeds not previously applied pursuant to this Section 4.14 shall be so applied. Notwithstanding Sections 4.14(a) and 4.14(b), the Company and its Restricted Subsidiaries will not be required to apply an amount equal to any Net Proceeds in accordance with this Section 4.14 except to the extent that the aggregate Net Proceeds from all Asset Sales which are not applied in accordance with this Section 4.14 in any calendar year exceeds the greater of $200.0 million or 1.0% of Consolidated Total Assets at the Capital Stock time of receipt of such business Net Proceeds (any amount less than such that such business constitutes threshold, “Retained Asset Sale Proceeds”). Pending application of an amount equal to Net Proceeds pursuant to this Section 4.14, the Company or a Restricted Subsidiary may temporarily reduce revolving credit borrowings or increases otherwise invest the Company’s direct Net Proceeds in any manner that is not prohibited by this Indenture.
(c) Any Net Proceeds from Asset Sales that are not applied or indirect percentage ownership invested as provided in Section 4.14(b) hereof shall constitute “Excess Proceeds.” When the aggregate amount of Excess Proceeds in any calendar year exceeds the greater of $200.0 million or 1.0% of Consolidated Total Assets, the Company shall make an offer (an “Asset Sale Offer”) to all Holders of Notes and all holders of other Pari Passu Indebtedness to purchase the maximum principal amount of Notes and such other Pari Passu Indebtedness that may be purchased out of the Capital Stock amount of such Excess Proceeds. The offer price in any Asset Sale Offer shall be equal to 100% of principal amount plus accrued and unpaid interest to, but not including, the date of purchase, and shall be payable in cash. If any Excess Proceeds remain after consummation of an Asset Sale Offer (“Declined Asset Sale Proceeds”), the Company and its Restricted Subsidiaries may use the amount of such 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 Company shall select the Notes and such other Pari Passu Indebtedness to be purchased on a Restricted Subsidiary;pro rata basis. Upon completion of each Asset Sale Offer, the amount of Excess Proceeds shall be reset at zero.
(d) 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 those laws and regulations are applicable in connection with each repurchase of Notes pursuant to an Asset Sale Offer. To the extent that the provisions of any securities laws or regulations conflict with the Asset Sale provisions of this Indenture, the Company shall comply with the applicable securities laws and regulations and shall not be deemed to have breached its obligations under the Asset Sale provisions of this Indenture by virtue of such compliance.
Appears in 1 contract
Asset Sales. (a) From and after the Completion Date, the The Company shall not consummatewill not, and shall will not permit any of its Restricted Subsidiaries to consummateto, consummate an Asset Sale, Sale unless:
(1) the Company (or such a Restricted Subsidiary, as the case may be, ) receives consideration (including by way of relief from, or by any Person assuming responsibility for, any liability, contingent or otherwise, in connection with such Asset Sale) at the time of such the Asset Sale at least equal to the fair market value (as determined by the Company in good faith by measured as of the Company at date of the time of contractually agreeing definitive agreement with respect to such Asset Sale) of the assets or Equity Interests issued or sold or otherwise disposed of; and
(2) except in the case of a Permitted Asset Swap, if the property or assets sold or otherwise disposed of have a fair market value in excess of the greater of $375.0 million and 50.0% of LTM EBITDA for the most recently ended Test Period at the time of such disposition, at least 75.075% of the aggregate consideration therefor received by the Company or such and its Restricted Subsidiary, as Subsidiaries in the case may be, Asset Sale is in the form of cash cash, Cash Equivalents or Cash Equivalents; provided that Replacement Assets or any combination of the amount offoregoing. For purposes of this provision, each of the following will be deemed to be cash:
(Aa) any liabilitiesliabilities (as shown on the Company’s most recent balance sheet or in the footnotes thereto, contingent or otherwiseas 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 such Restricted Subsidiary, Subsidiary (other than contingent liabilities and liabilities that are by their terms contractually subordinated in right of payment to the Notes or any Note Guarantee) that are owed to the Company assumed or a Restricted Subsidiary that (x) are assumed forgiven by the transferee of any such assets (or a third party in connection with such transfer) or (y) are otherwise cancelled or terminated in connection with the transaction with such transferee (other than intercompany debt owed pursuant to an agreement that releases the Company or its Restricted Subsidiariessuch Subsidiary from further liability, or that are otherwise released or assumed;
(b) and, in each case, for which properties and capital assets to be used by the Company and all or any Restricted Subsidiary in a Permitted Business, or Capital Stock of its a Person engaged in a Permitted Business that becomes a Restricted Subsidiaries have been validly released,Subsidiary of the Company;
(Bc) any securities, notes or other obligations or assets received by the Company or such any Restricted Subsidiary from such transferee that are are, within 210 days after the Asset Sale, converted by the Company or such Restricted Subsidiary into cash or Cash Equivalents (Equivalents, to the extent of the cash or Cash Equivalents received) within 180 days following the closing of such Asset Sale;received in that conversion; and
(C) Indebtedness of any Restricted Subsidiary that ceases to be a Restricted Subsidiary as a result of such Asset Sale (other than intercompany debt owed to the Company or any Restricted Subsidiary), to the extent that the Company and each other Restricted Subsidiary are released from any guarantee of payment of the principal amount of such Indebtedness in connection with such Asset Sale in accordance with the terms of this Indenture;
(D) consideration consisting of Indebtedness of the Issuers or a Guarantor (other than intercompany debt owed to the Company or any Restricted Subsidiary and other than Subordinated Indebtedness) received after the Issue Date from Persons who are not the Company, Holdings or any Restricted Subsidiary;
(Ed) any Designated Non-cash Cash Consideration received by the Company or such any Restricted Subsidiary in such Asset Sale having an aggregate fair market value, as determined by the Company, taken together with all other Designated Non-cash Cash Consideration received pursuant to this clause (Ec) that is at that the time outstanding, not to exceed the greater of (x) $225.0 100.0 million and 30.0(y) 4.5% of LTM EBITDA for the most recently ended Test Period Company’s Consolidated Net Tangible Assets at the time of the receipt of |US-DOCS\143900591.2|| such Designated Non-cash Consideration (Cash Consideration, with the fair market value of each such item of Designated Non-cash Cash Consideration being measured pursuant to this clause (E) at the Company’s option, either at the time of contractually agreeing to such Asset Sale or at the time received and, in either case, and without giving effect to subsequent changes in value); and
(F) any Investment, Capital Stock, assets, property or capital or other expenditure of the kind referred to in clauses (2) or (3) of Section 4.10(b) hereof shall be deemed to be Cash Equivalents for purposes of this provision and for no other purpose.
(b) Within 365 days (540 days in the case of an Event of Loss) after the receipt of any Net Proceeds of any from an Asset Sale (the “Proceeds Application Period”)Sale, the Company or such any Restricted Subsidiary, at their option, Subsidiary may apply an amount equal to the amount of such Net Proceeds from such Asset Sale,at its option to any combination of the following:
(1) to reducerepay, prepayredeem, repay repurchase or purchase:
(A) to the extent such Net Proceeds are from an Asset Sale otherwise retire any Senior Debt of Collateral, Obligations with Pari Passu Lien Priority (including the Senior Credit Facilities or any Refinancing Indebtedness in respect thereof but other than Indebtedness owed to the Company or any Restricted Subsidiary), and, in the case of revolving obligations, to its Subsidiaries (and correspondingly reduce commitments with respect thereto, provided thatin the case of the Existing ABL Facility, any secured Indebtedness incurred in respect of working capital assets or unsecured Indebtedness, only to the extent either Issuer required by the terms thereof), including the Existing ABL Facility Notes and the Existing Notes;
(2) to acquire all or substantially all of the properties or assets of a Person primarily engaged in a Permitted Business if, after giving effect to such acquisition, such Person is or becomes a Restricted Subsidiary of the Company;
(3) to acquire any Capital Stock of a Person 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 that are used or useful in a Permitted Business or make an Investment in assets that will be used or useful in the Company’s business. The requirement of clauses (2) through (5) of this Section 4.10(b) shall be deemed to be satisfied if a bona fide binding contract committing to make the acquisition, purchase, Investment or expenditure referred to therein is entered into by the Company (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. Pending the final application of the amount of any such Net Proceeds, the Company or any Restricted Subsidiary may utilize such 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 so repay constitute “Excess Proceeds” (it being understood that any portion of such Indebtedness Net Proceeds 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).
(other than d) Within 10 Business Days after the Notesaggregate amount of Excess Proceeds exceeds $75.0 million (or, at the Company’s option, on any earlier date or for any lesser amount), the Issuers shall reduce Obligations under the Notes on a pro rata basis by, at their option, (i) redeeming Notes as provided under Section 3.07 hereof (ii) purchasing Notes through open-market purchases or (iii) by making Company will make an offer (in accordance with the procedures set forth herein for an “Asset Sale Offer”) to all Holders of Notes, and all holders of other Pari Passu Debt containing provisions similar to purchase their 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 (or any series or both series, at a purchase the sole election of the Company) and such other Pari Passu Debt (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 100.0100% of the principal amount thereof, plus the amount of accrued but and unpaid interest, if any, to the 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 remain after the consummation of an Asset Sale Offer, the Company or any Restricted Subsidiary 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 Debt tendered into such Asset Sale Offer exceeds the amount of Excess Proceeds, the Trustee will select the Notes and the trustee or agent for such other Pari Passu Debt shall select such Pari Passu Debt to be purchased on a pro rata basis (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 Trustee, a method that most nearly approximates pro rata selection) but with such adjustments as necessary so that no Notes or other Pari Passu Debt is purchased in part in an authorized denomination. Upon completion of each Asset Sale Offer, the amount of Excess Proceeds will be reset at zero.
(e) 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 those laws and regulations are applicable in connection with each repurchase of Notes pursuant to 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 will comply with the applicable securities laws and regulations and will not be deemed to have breached its obligations under Section 3.09 hereof or this Section 4.10 by virtue of such compliance.
(f) If Holders of not less than 90% in aggregate principal amount of the outstanding Notes of any series validly tender and do not withdraw such Notes in connection with an Asset Sale Offer and the Company purchases all of the Notes validly tendered and not withdrawn by such Holders, the Company will have the right, upon not less than 10 days’ nor more than 60 days’ prior notice, given not more than 30 days following such purchase pursuant to the Asset Sale Offer described above, to redeem all of the Notes of that series that remain outstanding following such purchase at a redemption price equal to 100% of aggregate the principal amount of the Notes to be repurchased to the date of repurchase;
(B) to the extent such Net Proceeds resulted from an Asset Sale not consisting of Collateral, Obligations in respect of other Secured Indebtedness (which may include the Notes), and, in the case of revolving commitments, to correspondingly reduce commitments with respect thereto;
(C) Obligations in respect of the Notes or any other Indebtedness (other than Subordinated Indebtedness) of the Company or any Restricted Subsidiary, other than Indebtedness owed to the Company or any Restricted Subsidiary (and, in the case of revolving commitments, to correspondingly reduce commitments with respect thereto), provided that, to the extent either Issuer or any Restricted Subsidiary will so repay any such Indebtedness (other than the Notes), the Issuers will reduce Obligations under the Notes on a pro rata basis by, at their option, (i) redeeming Notes as provided under Section 3.07 hereof or (ii) by making an offer (in accordance with the procedures set forth herein for an Asset Sale Offer) to all Holders to purchase their Notes at a purchase price equal to 100.0% of the principal amount thereof, that series redeemed plus the amount of accrued but and unpaid interest, if any, thereon on the principal amount of the Notes to be repurchased to the date of repurchase; or |US-DOCS\143900591.2||
(D) Obligations in respect of Indebtedness of a Non-Guarantor Subsidiaryredemption, other than Indebtedness owed subject to the Company or another Restricted Subsidiary; provided, in the case right of clauses (A) or (C) above, (i) if an offer to purchase any Indebtedness of the Company or any Restricted Subsidiary is made, such amount will be deemed repaid to the extent of the amount of such offer, whether or not accepted by the holders of such Indebtedness, and no Net Proceeds in the amount of such offer will be deemed record on relevant record dates to exist following such offer, and (ii) if the holder of any Indebtedness of a Restricted Subsidiary of the Company declines the repayment of such Indebtedness owed to it from such Net Proceeds such amount will be deemed repaid to the extent of the declined Net Proceeds, or
(2) to make receive interest due on 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 that results in the Company or any Restricted Subsidiary, as the case may be, owning an amount of the Capital Stock of such business such that such business constitutes a Restricted Subsidiary or increases the Company’s direct or indirect percentage ownership of the Capital Stock of a Restricted Subsidiary;interest payment date.
Appears in 1 contract
Sources: Indenture (CVR Energy Inc)
Asset Sales. (a) From and after the Completion Date, the The Company shall not consummatenot, and shall not permit any of its Restricted Subsidiaries to to, consummate, directly or indirectly, an Asset Sale, Sale (including (x) the sale or issuance of Equity Interests in a Restricted Subsidiary and (y) any Sale Leaseback) unless:
(1) the Company or such Restricted Subsidiary, as the case may be, receives consideration at the time of such Asset Sale at least equal to the fair market value (as determined in good faith by the Company at the time of contractually agreeing to such Asset Sale) of the assets sold or otherwise disposed ofis made for Fair Market Value; and
(2) except in the case of a Permitted Asset Swap, if a Sale Leaseback or the property or assets sold or otherwise disposed Disposition of have a fair market value Multiplex theatre, in any such Asset Sale with a purchase price in excess of the greater of (x) $375.0 million 50,000,000 and 50.0(y) 5% of LTM Consolidated EBITDA for the most recently ended Test Period at the time of such dispositionPeriod, at least 75.075% of the consideration therefor for such Asset Sale, together with all other Asset Sales completed or contractually agreed upon since the Issue Date, received by the Company or such Restricted Subsidiary, as the case may be, Subsidiary is in the form of cash or Cash Equivalents.
(b) Within 450 days after receipt of any Net Proceeds from any Asset Sale (the “Asset Sale Proceeds Application Period”), the Company or such Restricted Subsidiary, at its option, may apply an amount equal to the Net Proceeds from such Asset Sale (the “Applicable Proceeds”),
(1) to the extent the assets or property disposed of in the Asset Sale constituted Collateral, to repay (i) first, (1) Obligations under the First Lien Credit Facilities, (2) Obligations under the First Lien Notes, (3) Obligations under the Additional Silver Lake First Lien Notes, (4) the New First Lien Notes, (5) Obligations under the Convertible Notes or (6) any Additional First Lien Obligations in accordance with the terms of the New First Lien Notes Indenture and other documents governing the Senior Obligations and (ii) second, to the extent any Applicable Proceeds remain after all Senior Obligations requiring repayment have been repaid in full, the Second Lien Obligations; provided that the Company or such Restricted Subsidiary will reduce the aggregate principal amount ofof Obligations under the Notes on a ratable basis with any such Second Lien Obligations repaid pursuant to this Section 4.16(b)(1) by redeeming Notes as provided in Section 3.08, and in each case, in the case of revolving obligations, to correspondingly reduce commitments with respect thereto;
(2) to the extent the assets or property disposed of in the Asset Sale did not constitute Collateral:
(Ai) first to repay Senior Obligations in accordance with the terms of the New First Lien Notes Indenture and other documents governing the Senior Obligations; and
(ii) second, to the extent any Applicable Proceeds remain after all Senior Obligations requiring repayment have been repaid in full, to repay Obligations under any Senior Indebtedness (other than any Senior Indebtedness referred to in Section 4.16(b)(2)(i)) and in each case, in the case of revolving obligations, to correspondingly reduce commitments with respect thereto; provided that the Company or such Restricted Subsidiary will reduce the aggregate principal amount of Obligations under the Notes on a ratable basis with any such Senior Indebtedness repaid pursuant to this Section 4.16(b)(2)(ii) by redeeming Notes as provided under Section 3.08; or
(3) to invest in the business of the Company and its Subsidiaries (including any acquisition or other Investment permitted under this Indenture); or
(4) any liabilitiescombination of the foregoing; provided that, contingent in the case of clause (3) above, a binding commitment or otherwiseletter of intent shall be treated as a permitted application of the Applicable Proceeds from the date of such commitment or letter of intent so long as the Company or such Restricted Subsidiary enters into such commitment or letter of intent with the good faith expectation that such Applicable Proceeds will be applied to satisfy such commitment or letter of intent within 180 days of the expiration of the Asset Sale Proceeds Application Period (an “Acceptable Commitment”) and such Applicable Proceeds are actually applied in such manner within 180 days of the expiration of the Asset Sale Proceeds Application Period (the period from the consummation of the Asset Sale to such date, the “Commitment Application Period”), and, in the event any Acceptable Commitment is later cancelled or terminated for any reason after the expiration of the Asset Sale Proceeds Application Period and before the Applicable Proceeds are applied in connection therewith, then such Applicable Proceeds shall constitute Excess Proceeds unless the Company or such Restricted Subsidiary reasonably expects to enter into another Acceptable Commitment prior to the expiration of the Asset Sale Proceeds Application Period and such Applicable Proceeds are actually applied in such manner prior to the expiration of the Commitment Application Period. To the extent Applicable Proceeds from an Asset Sale exceed amounts that are invested or applied as provided and within the time period set forth in Section 4.16(b), such excess amount will be deemed to constitute “Excess Proceeds”; provided that any amount of Applicable Proceeds offered to Holders of any Notes pursuant to clauses (1) or (2) above shall not be deemed to be Excess Proceeds without regard to whether such offer is accepted by any Holders.
(c) Notwithstanding the foregoing, in the event the Asset Sale consists of any interest in a European Subsidiary (or the assets thereof), (a) up to $150 million of the Applicable Proceeds (less (x) any Applicable Proceeds that have been applied under this clause (a) in any prior Asset Sale to which this paragraph applies and (y) any Obligations of such European Subsidiary incurred pursuant to Section 4.05(b)(xv)) (the “Threshold”) may be used for the purposes described in Section 4.16(b)(3), (b) 80% of the Applicable Proceeds in excess of the Threshold (the “European Asset Sale Debt Repayment Amount”) must be used for the purposes described in Section 4.16(b)(1) or (b)(2), if any, as applicable; provided, however, that the European Asset Sale Debt Repayment Amount that is to be used to repay the Notes must be applied in accordance with Section 3.08 and (c) 20% of the Applicable Proceeds in excess of the Threshold may be used in any combination of the foregoing. The Company or any Restricted Subsidiary must apply the European Asset Sale Debt Repayment Amount for the purposes described in Section 4.16(b)(1) or (b)(2) within 15 days of the receipt of Applicable Proceeds that result in the European Asset Sale Debt Repayment Amount (less any amounts that have previously been applied under clause (b) of the preceding sentence) to exceed $50.0 million (a “European Asset Sale Mandatory Redemption Event”).
(d) Except with respect to an Asset Sale that consists of any interest in a European Subsidiary (or the assets thereof) described in the immediately preceding paragraph, if at any time the aggregate amount of Excess Proceeds exceeds $100.0 million (an “Asset Sale Mandatory Redemption Event”), then the Company shall (a) redeem the maximum aggregate principal amount of Notes (as determined in accordance with clauses (1) and (2) above) in accordance with the procedures in Section 3.08, and (b) if required or permitted by the terms of any other Second Lien Obligations and/or, to the extent that the assets or property disposed of in the Asset Sale were not Collateral, Indebtedness that is pari passu in right of payment with the Notes (“Pari Passu Indebtedness”), within 20 Business Days of such Asset Sale Mandatory Redemption Event, offer to purchase the maximum aggregate principal amount (or accreted value, as applicable) (as determined in accordance with clauses (1) and (2) above) of such Second Lien Obligations and/or Pari Passu Indebtedness, as applicable, out of the amount of the Excess Proceeds (in the case of any Second Lien Obligations and/or Pari Passu Indebtedness, if applicable, in accordance with the documents governing such Second Lien Obligations and/or Pari Passu Indebtedness) to the Holders of such Second Lien Obligations and/or Pari Passu Indebtedness, as applicable (an “Asset Sale Offer”). The Company may satisfy the foregoing obligation with respect to such Applicable Proceeds from an Asset Sale by making an Asset Sale Offer in advance of being required to do so by this Indenture (an “Advance Offer”) with respect to all or part of the available Applicable Proceeds (the “Advance Portion”).
(e) If the aggregate principal amount (or accreted value, as applicable) of Notes redeemed, together with, if applicable, Second Lien Obligations and/or Pari Passu Indebtedness, tendered pursuant to an Asset Sale Offer is less than the Excess Proceeds (or, in the case of an Advance Offer, the Advance Portion), the Company may use any remaining Excess Proceeds (or, in the case of an Advance Offer, the Advance Portion) in any manner not prohibited by this Indenture. Upon completion of any such Asset Sale Offer, the amount of Excess Proceeds shall be reset at zero (regardless of whether there are any remaining Excess Proceeds upon such completion), and in the case of an Advance Offer, the Advance Portion shall be excluded in subsequent calculations of Excess Proceeds. Notwithstanding the foregoing, to the extent the First Lien/Second Lien Intercreditor Agreement or any Senior Debt Document, prohibits the Company from making an Asset Sale Offer or redemption contemplated by Sections 4.16(c) or (d) with the Net Proceeds from a disposition of Collateral, the Company shall apply the Excess Proceeds to purchase Senior Obligations in accordance with Section 4.16(b)(1) prior to the expiration of the relevant 450 days (or such longer period provided above) or, in the case of a European Asset Sale Mandatory Redemption, of the relevant 15 days.
(f) Pending the final application of an amount equal to the Applicable Proceeds pursuant to this Section 4.16, the Holder of such Applicable Proceeds may apply any Applicable Proceeds temporarily to reduce Indebtedness outstanding under a revolving credit facility (including under the First Lien Credit Facilities) or otherwise invest such Applicable Proceeds in any manner not prohibited by this Indenture. For the avoidance of doubt, the Company may apply any Retained Declined Proceeds in any manner not prohibited by this Indenture and such Retained Declined Proceeds shall in no event and under no circumstances constitute Excess Proceeds.
(g) Notwithstanding anything in this Indenture to the contrary, (i) to the extent that any of or all the Applicable Proceeds received by a Foreign Subsidiary are prohibited or delayed under any Requirements of Law from being repatriated to the Company, the portion of such Applicable Proceeds so affected will not be required to be applied in compliance with this Section 4.16 and shall not constitute Excess Proceeds and may be retained by the applicable Foreign Subsidiary so long, but only so long, as the applicable Requirement of Law will not permit repatriation to the Company (the Company hereby agreeing to cause the applicable Foreign Subsidiary to promptly take all actions reasonably required by the applicable Requirement of Law to permit such repatriation), and once such repatriation of any of such affected Net Proceeds is permitted under the applicable Requirement of Law, such repatriation will be promptly effected and such repatriated Applicable Proceeds will be promptly applied (net of additional taxes payable or reserved against as a result thereof) in compliance with this Section 4.16, and (ii) to the extent that and for so long as the Company has determined in good faith that repatriation of any of or all the Applicable Proceeds would have a material adverse tax consequence (taking into account any foreign tax credit or benefit actually realized in connection with such repatriation), the Applicable Proceeds so affected will not be required to be applied in compliance with this Section 4.16 and shall not constitute Excess Proceeds and may be retained by the applicable Foreign Subsidiary; provided that when the Company determines in good faith that repatriation of any of or all the Applicable Proceeds received by a Foreign Subsidiary would no longer have a material adverse tax consequence (taking into account any foreign tax credit or benefit actually realized in connection with such repatriation), such Applicable Proceeds shall be promptly applied (net of additional taxes payable or reserved against as a result thereof) in compliance with this Section 4.16.
(h) For purposes of clause (a)(2) of this Section 4.16 (and no other provision), the following shall be deemed to be cash or Cash Equivalents:
(1) the greater of the principal amount and carrying value of any liabilities (as reflected on the most recent balance sheet of the Company (or a Parent Entity) provided hereunder or in the footnotes thereto), or if incurred, accrued or increased subsequent to the date of such balance sheet, such liabilities that would have been reflected on the balance sheet of the Company (or Parent Entity) or in the footnotes thereto if such incurrence, accrual or increase had taken place on or prior to the date of such balance sheet, as determined in good faith by the Company) of the Company or such Restricted Subsidiary, other than liabilities that are by their terms subordinated to the Notes or Obligations under the Notes, that are owed to the Company or a Restricted Subsidiary that (x) are assumed by the transferee of any such assets (or a third party in connection with such transfer) or (y) are otherwise cancelled or terminated extinguished in connection with the transaction with transactions relating to such transferee (other than intercompany debt owed Asset Sale) pursuant to a written agreement which releases the Company or its such Restricted Subsidiaries) and, in each case, for which the Company and all of its Restricted Subsidiaries have been validly released,Subsidiary from such liabilities;
(B2) any securities, notes or other obligations or assets securities received by the Company or such Restricted Subsidiary from such transferee that are converted by the Company or such Restricted Subsidiary into cash or Cash Equivalents (to the extent of the cash or Cash Equivalents received) within 180 days following the closing of such the applicable Asset Sale;; and
(C) Indebtedness of any Restricted Subsidiary that ceases to be a Restricted Subsidiary as a result of such Asset Sale (other than intercompany debt owed to the Company or any Restricted Subsidiary), to the extent that the Company and each other Restricted Subsidiary are released from any guarantee of payment of the principal amount of such Indebtedness in connection with such Asset Sale in accordance with the terms of this Indenture;
(D) consideration consisting of Indebtedness of the Issuers or a Guarantor (other than intercompany debt owed to the Company or any Restricted Subsidiary and other than Subordinated Indebtedness) received after the Issue Date from Persons who are not the Company, Holdings or any Restricted Subsidiary;
(E3) any Designated Non-cash Cash Consideration received by the Company or such Restricted Subsidiary in respect of such Asset Sale having an aggregate fair market value, as determined by the CompanyFair Market Value, taken together with all other Designated Non-cash Cash Consideration received pursuant to this clause (E3) that is at that time outstanding, not to exceed in excess (at the greater time of $225.0 million and 30.0receipt of such Designated Non-Cash Consideration) of 5% of LTM EBITDA Consolidated Total Assets for the most recently ended Test Period at as of the time of the receipt of |US-DOCS\143900591.2|| such Designated Non-cash Consideration (Cash Consideration, with the fair market value Fair Market Value of each such item of Designated Non-cash Cash Consideration being measured pursuant to this clause (E) at the Company’s option, either at the time of contractually agreeing to such Asset Sale or at the time received and, in either case, and without giving effect to subsequent changes in value); and
(F) any Investment, Capital Stock, assets, property or capital or other expenditure of the kind referred to in clauses (2) or (3) of Section 4.10(b) hereof shall be deemed to be Cash Equivalents for purposes of this provision and for no other purpose.
(bi) Within 540 days after the receipt The provisions of any Net Proceeds of any Asset Sale (the “Proceeds Application Period”), the Company or such Restricted Subsidiary, at their option, may apply an amount equal this Indenture relating to the Net Proceeds from such Asset Sale,
(1) Company’s obligation to reduce, prepay, repay or purchase:
(A) to redeem the extent such Net Proceeds are from Notes as a result of an Asset Sale of Collateral, Obligations with Pari Passu Lien Priority (including the Senior Credit Facilities may be waived or modified at any Refinancing Indebtedness in respect thereof but other than Indebtedness owed to the Company or any Restricted Subsidiary), and, in the case of revolving obligations, to correspondingly reduce commitments with respect thereto, provided that, to the extent either Issuer or any Restricted Subsidiary will so repay any such Indebtedness (other than the Notes), the Issuers shall reduce Obligations under the Notes on a pro rata basis by, at their option, (i) redeeming Notes as provided under Section 3.07 hereof (ii) purchasing Notes through open-market purchases or (iii) by making an offer (in accordance time with the procedures set forth herein for an Asset Sale Offer) to all Holders to purchase their Notes at a purchase price equal to 100.0% written consent of the principal amount thereof, plus the amount Holders of accrued but unpaid interest, if any, on the a majority in aggregate principal amount of the Notes to be repurchased to the date of repurchase;
(B) to the extent such Net Proceeds resulted from an Asset Sale not consisting of Collateral, Obligations in respect of other Secured Indebtedness (which may include the Notes), and, in the case of revolving commitments, to correspondingly reduce commitments with respect thereto;
(C) Obligations in respect of the Notes or any other Indebtedness (other than Subordinated Indebtedness) of the Company or any Restricted Subsidiary, other than Indebtedness owed to the Company or any Restricted Subsidiary (and, in the case of revolving commitments, to correspondingly reduce commitments with respect thereto), provided that, to the extent either Issuer or any Restricted Subsidiary will so repay any such Indebtedness (other than the Notes), the Issuers will reduce Obligations under the Notes on a pro rata basis by, at their option, (i) redeeming Notes as provided under Section 3.07 hereof or (ii) by making an offer (in accordance with the procedures set forth herein for an Asset Sale Offer) to all Holders to purchase their Notes at a purchase price equal to 100.0% of the principal amount thereof, plus the amount of accrued but unpaid interest, if any, on the principal amount of the Notes to be repurchased to the date of repurchase; or |US-DOCS\143900591.2||
(D) Obligations in respect of Indebtedness of a Non-Guarantor Subsidiary, other than Indebtedness owed to the Company or another Restricted Subsidiary; provided, in the case of clauses (A) or (C) above, (i) if an offer to purchase any Indebtedness of the Company or any Restricted Subsidiary is made, such amount will be deemed repaid to the extent of the amount of such offer, whether or not accepted by the holders of such Indebtedness, and no Net Proceeds in the amount of such offer will be deemed to exist following such offer, and (ii) if the holder of any Indebtedness of a Restricted Subsidiary of the Company declines the repayment of such Indebtedness owed to it from such Net Proceeds such amount will be deemed repaid to the extent of the declined Net Proceeds, or
(2) 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 that results in the Company or any Restricted Subsidiary, as the case may be, owning an amount of the Capital Stock of such business such that such business constitutes a Restricted Subsidiary or increases the Company’s direct or indirect percentage ownership of the Capital Stock of a Restricted Subsidiary;then outstanding.
Appears in 1 contract
Asset Sales. (a) From and after the Completion Date, the The Company shall not consummatewill not, and shall will not permit any of its Restricted Subsidiaries to consummateSubsidiary to, consummate an Asset Sale, unless:
(1i) the Company or such Restricted Subsidiary, as the case may be, receives consideration at the time of such Asset Sale at least equal to the fair market value (as determined in good faith by the Company at the time of contractually agreeing to such Asset Sale) Fair Market Value of the assets sold or otherwise disposed of; and;
(2ii) except in the case of a Permitted Asset Swap, if the property or assets sold or otherwise disposed of have a fair market value in excess of the greater of $375.0 million and 50.0% of LTM EBITDA for the most recently ended Test Period at the time of such disposition, at least 75.075% of the consideration therefor received by the Company or such Restricted Subsidiary, as the case may be, is in the form of cash or cash, Cash Equivalents, Replacement Assets or a combination of the foregoing; provided that the amount of:and
(Aiii) any liabilitiesif such Asset Sale involves the disposition of Collateral, contingent or otherwise, of the Company or such Restricted Subsidiary, other than liabilities that are by their terms subordinated to the Notes or that are owed to the Company or a Restricted Subsidiary that (x) are assumed by the transferee of any such assets (or a third party in connection with such transfer) or (y) are otherwise cancelled or terminated in connection with the transaction with such transferee (other than intercompany debt owed to the Company or its Restricted Subsidiaries) and, in each case, for which the Company and all of its Restricted Subsidiaries have been validly released,
(B) any securities, notes or other obligations or assets received by the Company or such Restricted Subsidiary from such transferee that are converted by has complied with the Company or such Restricted Subsidiary into cash or Cash Equivalents (to other provisions of this Indenture and the extent of Collateral Documents related thereto. Within 365 days after the cash or Cash Equivalents received) within 180 days following the closing of such Asset Sale;
(C) Indebtedness of any Restricted Subsidiary that ceases to be a Restricted Subsidiary as a result of such Asset Sale (other than intercompany debt owed to the Company Company’s or any Restricted Subsidiary), to the extent that the Company and each other Restricted Subsidiary are released from any guarantee of payment ’s receipt of the principal amount of such Indebtedness in connection with such Asset Sale in accordance with the terms of this Indenture;
(D) consideration consisting of Indebtedness of the Issuers or a Guarantor (other than intercompany debt owed to the Company or any Restricted Subsidiary and other than Subordinated Indebtedness) received after the Issue Date from Persons who are not the Company, Holdings or any Restricted Subsidiary;
(E) any Designated Non-cash Consideration received by the Company or such Restricted Subsidiary in such Asset Sale having an aggregate fair market value, as determined by the Company, taken together with all other Designated Non-cash Consideration received pursuant to this clause (E) that is at that time outstanding, not to exceed the greater of $225.0 million and 30.0% of LTM EBITDA for the most recently ended Test Period at the time of the receipt of |US-DOCS\143900591.2|| such Designated Non-cash Consideration (with the fair market value of each such item of Designated Non-cash Consideration being measured pursuant to this clause (E) at the Company’s option, either at the time of contractually agreeing to such Asset Sale or at the time received and, in either case, without giving effect to subsequent changes in value); and
(F) any Investment, Capital Stock, assets, property or capital or other expenditure of the kind referred to in clauses (2) or (3) of Section 4.10(b) hereof shall be deemed to be Cash Equivalents for purposes of this provision and for no other purpose.
(b) Within 540 days after the receipt of any Net Proceeds of any Asset Sale (the “Proceeds Application Period”)Sale, the Company or such Restricted Subsidiary, at their its option, may apply an amount equal to the Net Proceeds from such Asset Sale,:
(1) to permanently reduce Pari Passu Obligations or repay, redeem or purchase the Notes; provided that if the Company shall so reduce, prepayrepay, repay redeem or purchase:
(A) to the extent such Net Proceeds are from an Asset Sale of Collateral, Obligations with repurchase Pari Passu Lien Priority (including the Senior Credit Facilities or any Refinancing Indebtedness in respect thereof but other than Indebtedness owed to the Company or any Restricted Subsidiary), and, in the case of revolving obligations, to correspondingly reduce commitments with respect thereto, provided that, to the extent either Issuer or any Restricted Subsidiary will so repay any such Indebtedness (Obligations other than the Notes), the Issuers shall it will equally and ratably reduce Obligations under the Notes on a pro rata basis byin accordance with the procedures set forth in Article IV, at their option, (i) redeeming Notes as provided under Section 3.07 hereof (ii) purchasing Notes through open-privately negotiated transactions or open market purchases or (iii) by making an offer (in accordance with the procedures set forth herein in Section 4.08 for an Asset Sale Offer) to all Holders to purchase their Notes Notes, in each case, at a purchase price equal to 100.0or above 100% of the principal amount thereof, plus the amount of accrued but unpaid interest, if any, on the principal amount of the Notes to that would otherwise be repurchased prepaid, which offer shall constitute a reduction of the Obligations under the Notes under this provision, whether or not accepted; provided further that, in addition to the date of repurchase;
(B) to foregoing, the extent such Net Proceeds resulted from an Asset Sale of Collateral may not consisting of Collateralbe applied to prepay, Obligations in respect of other Secured repay or repurchase any Indebtedness pursuant to this clause (which may include the Notes), and, in the case of revolving commitments, to correspondingly reduce commitments with respect thereto;
(C1) Obligations in respect of the Notes or any other Indebtedness (other than Subordinated Indebtedness) of the Company or any Restricted Subsidiary, other than Indebtedness owed to the Company or any Restricted Subsidiary (and, in the case of revolving commitments, to correspondingly reduce commitments with respect thereto), provided that, to the extent either Issuer or any Restricted Subsidiary will so repay any such Indebtedness (other than the Notes), the Issuers will reduce Obligations under the Notes on a pro rata basis by, at their option, (i) redeeming Notes as provided under Section 3.07 hereof or (ii) by making an offer (in accordance with the procedures set forth herein for an Asset Sale Offer) to all Holders to purchase their Notes at a purchase price equal to 100.0% of the principal amount thereof, plus the amount of accrued but unpaid interest, if any, on the principal amount of the Notes to be repurchased to the date of repurchase; or |US-DOCS\143900591.2||
(D) Obligations in respect of Indebtedness of a Non-Guarantor Subsidiary, other than Indebtedness owed to the Company or another Restricted Subsidiary; provided, in the case of clauses (A) or (C) above, (i) if an offer to purchase any Indebtedness of the Company or any Restricted Subsidiary is made, such amount will be deemed repaid to the extent of the amount of such offer, whether or not accepted by the holders of such Indebtedness, and no Net Proceeds in the amount of such offer will be deemed to exist following such offer, and (ii) if the holder of any Indebtedness of a Restricted Subsidiary of the Company declines the repayment of such Indebtedness owed to it from such Net Proceeds such amount will be deemed repaid to the extent of the declined Net Proceeds, orPari Passu Obligations;
(2) to (a) make an Investment investment in (A) any one or more businesses, provided that such Investment investment in any business is in the form of the acquisition of Capital Stock that and results in the Company or any a Restricted Subsidiary, as the case may be, owning or continuing to own an amount of the Capital Stock of such business such that such business it constitutes a Restricted Subsidiary Subsidiary, (b) make capital expenditures or increases (c) acquire other assets (including assets that replace the Company’s direct or indirect percentage ownership business, properties and assets that were the subject of the Capital Stock Asset Sale), in each of (a), (b) and (c), engaged, used or useful in a Restricted SubsidiarySimilar Business; provided further that any Net Proceeds from an Asset Sale of Collateral shall only be invested in other Collateral or in other businesses, properties or assets that become Collateral to the extent such business, properties or assets are required to become “Collateral” or “Pledged Collateral” (or any equivalent term) as defined in the First Priority Credit Documents in accordance with the terms of any of the First Priority Credit Documents;
Appears in 1 contract
Asset Sales. (a) From and after the Completion Date, the The Company shall not consummatenot, and shall not permit any of its Restricted Subsidiaries to consummate, consummate an Asset Sale, Sale unless:
: (1i) the Company (or such 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 (as determined in good faith by the Company at the time of contractually agreeing to such Asset Sale) of the assets or Equity Interests issued or sold or otherwise disposed of; and
and (2ii) except in the case of a Permitted Asset Swap, if the property or assets sold or otherwise disposed of have a fair market value in excess of the greater of $375.0 million and 50.0% of LTM EBITDA for the most recently ended Test Period at the time of such disposition, at least 75.075% of the consideration therefor received in the Asset Sale by the Company or such Restricted Subsidiary, as the case may be, Subsidiary is in the form of cash or Cash Equivalents; provided that . For purposes of clause (ii) of the amount of:
preceding paragraph, each of the following will be deemed to be cash: (Aa) any liabilities, contingent as shown on the Company's or otherwisesuch Restricted Subsidiary's most recent balance sheet, of the Company or such any Restricted Subsidiary, Subsidiary (other than contingent liabilities and liabilities that are by their terms subordinated to the Notes or any Subsidiary Guarantee) that are owed to the Company or a Restricted Subsidiary that (x) are assumed by the transferee of any such assets (or a third party in connection with such transfer) or (y) are otherwise cancelled or terminated in connection with and the transaction with such transferee (other than intercompany debt owed to lender releases the Company or its such Restricted Subsidiaries) and, in each case, for which the Company Subsidiary from further liability; and all of its Restricted Subsidiaries have been validly released,
(Bb) any securities, notes or other obligations or assets received by the Company or any such Restricted Subsidiary from such transferee that are promptly converted by the Company or such Restricted Subsidiary into cash or Cash Equivalents (Equivalents, to the extent of the cash or Cash Equivalents received) within 180 days following the closing of such Asset Sale;
(C) Indebtedness of any Restricted Subsidiary received in that ceases to be a Restricted Subsidiary as a result of such Asset Sale (other than intercompany debt owed to the Company or any Restricted Subsidiary), to the extent that the Company and each other Restricted Subsidiary are released from any guarantee of payment of the principal amount of such Indebtedness in connection with such Asset Sale in accordance with the terms of this Indenture;
(D) consideration consisting of Indebtedness of the Issuers or a Guarantor (other than intercompany debt owed to the Company or any Restricted Subsidiary and other than Subordinated Indebtedness) received after the Issue Date from Persons who are not the Company, Holdings or any Restricted Subsidiary;
(E) any Designated Non-cash Consideration received by the Company or such Restricted Subsidiary in such Asset Sale having an aggregate fair market value, as determined by the Company, taken together with all other Designated Non-cash Consideration received pursuant to this clause (E) that is at that time outstanding, not to exceed the greater of $225.0 million and 30.0conversion. The 75% of LTM EBITDA for the most recently ended Test Period at the time of the receipt of |US-DOCS\143900591.2|| such Designated Non-cash Consideration (with the fair market value of each such item of Designated Non-cash Consideration being measured pursuant to this clause (E) at the Company’s option, either at the time of contractually agreeing to such Asset Sale or at the time received and, in either case, without giving effect to subsequent changes in value); and
(F) any Investment, Capital Stock, assets, property or capital or other expenditure of the kind limitation referred to in clauses clause (2) or (3ii) of the first paragraph of this Section 4.10(b) hereof 4.10 shall be deemed not apply to be any Asset Sale to which the cash or Cash Equivalents for purposes portion of this provision the consideration received therefrom, determined in accordance subclauses (a) and for no other purpose.
(b) of the preceding paragraph, is equal to or greater than what the after-tax proceeds would have been had that Asset Sale complied with the aforementioned 75% limitation. Within 540 365 days after the receipt of any Net Proceeds of any from an Asset Sale (the “Proceeds Application Period”)Sale, the Company or such Restricted Subsidiary, at their option, may apply an amount equal to the Net Proceeds from such Asset Sale,
(1) to reduce, prepay, repay or purchase:
(A) to the extent such Net Proceeds are from an Asset Sale of Collateral, Obligations with Pari Passu Lien Priority (including the Senior Credit Facilities or any Refinancing Indebtedness in respect thereof but other than Indebtedness owed to the Company or any Restricted Subsidiary), and, in the case of revolving obligations, to correspondingly reduce commitments with respect thereto, provided that, to the extent either Issuer or any Restricted Subsidiary will so repay any such Indebtedness (other than the Notes), the Issuers shall reduce Obligations under the Notes on a pro rata basis by, at their option, (i) redeeming Notes as provided under Section 3.07 hereof (ii) purchasing Notes through open-market purchases or (iii) by making an offer (in accordance with the procedures set forth herein for an Asset Sale Offer) to all Holders to purchase their Notes at a purchase price equal to 100.0% of the principal amount thereof, plus the amount of accrued but unpaid interest, if any, on the principal amount of the Notes to be repurchased to the date of repurchase;
(B) to the extent such Net Proceeds resulted from an Asset Sale not consisting of Collateral, Obligations in respect of other Secured Indebtedness (which may include the Notes), and, in the case of revolving commitments, to correspondingly reduce commitments with respect thereto;
(C) Obligations in respect of the Notes or any other Indebtedness (other than Subordinated Indebtedness) of the Company or any Restricted Subsidiary, other than Indebtedness owed to the Company or any Restricted Subsidiary (and, in the case of revolving commitments, to correspondingly reduce commitments with respect thereto), provided that, to the extent either Issuer or any Restricted Subsidiary will so repay any such Indebtedness (other than the Notes), the Issuers will reduce Obligations under the Notes on a pro rata basis by, at their option, (i) redeeming Notes as provided under Section 3.07 hereof or (ii) by making an offer (in accordance with the procedures set forth herein for an Asset Sale Offer) to all Holders to purchase their Notes at a purchase price equal to 100.0% of the principal amount thereof, plus the amount of accrued but unpaid interest, if any, on the principal amount of the Notes to be repurchased to the date of repurchase; or |US-DOCS\143900591.2||
(D) Obligations in respect of Indebtedness of a Non-Guarantor Subsidiary, other than Indebtedness owed to the Company or another Restricted Subsidiary; provided, in the case of clauses (A) or (C) above, (i) if an offer to purchase any Indebtedness of the Company or any Restricted Subsidiary is made, such amount will be deemed repaid to the extent of the amount of such offer, whether or not accepted by the holders of such Indebtedness, and no Net Proceeds in the amount of such offer will be deemed to exist following such offer, and (ii) if the holder of any Indebtedness of a Restricted Subsidiary of the Company declines the repayment of such Indebtedness owed to it from such Net Proceeds such amount will be deemed repaid to the extent of the declined Net Proceeds, or
(2) 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 that results in the Company or any Restricted Subsidiary, as the case may be, owning may apply an amount equal to such Net Proceeds at its option:
(1) to repay any Senior Debt of the Capital Stock Company or any of its Restricted Subsidiaries;
(2) to acquire (or enter into a binding agreement to acquire, provided that such commitment shall be subject only to customary conditions (other than financing) and such acquisition shall be consummated within 180 days after the end of such business such that such business constitutes 365 day period) the assets of, or a Restricted Subsidiary or increases the Company’s direct or indirect percentage ownership majority of the Capital Voting Stock of of, a Permitted Business or the minority interest in any Restricted Subsidiary;
(3) to make a capital expenditure, provided that to the extent the Company has made capital expenditures since the date of the Indenture and those capital expenditures are still useful in the Company's business after such Asset Sale, such capital expenditures shall be deemed to have been made during the applicable 365 day period; or
(4) to acquire (or enter into a binding agreement to acquire, PROVIDED that such commitment shall be subject only to customary conditions (other than financing) and such acquisition shall be consummated within 180 days after the end of such 365 day period) other long-term assets that are used or useful in a Permitted Business. If an amount equal to the Net Proceeds from Asset Sales is not applied or invested as provided in the preceding paragraph such amount will constitute "Excess Proceeds." When the aggregate amount of Excess Proceeds exceeds $25.0 million, the Company shall make an offer to holders of the Notes (and to holders of other Senior Subordinated Indebtedness of the Company designated by the Company) to purchase Notes (and such other Senior Subordinated Indebtedness of the Company) pursuant to and subject to the conditions contained in this Indenture (the "Asset Sale Offer"). MacDermid shall purchase Notes tendered pursuant to the Asset Sale Offer at a purchase price of 100% of their principal amount (or, in the event such other Senior Subordinated 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 Senior Subordinated Indebtedness of the Company, such lesser price, if any, as may be provided for by the terms of such Senior Subordinated 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 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 will be denominations of $1,000 principal amount or multiples thereof. 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. Upon completion of each Asset Sale Offer, the amount of Excess Proceeds will be reset at zero. MacDermid shall comply with the requirements of Rule 14e-1 under the Exchange Act and any other securities laws and regulations thereunder to the extent those laws and regulations are applicable in connection with each repurchase of Notes pursuant to an Asset Sale Offer. To the extent that the provisions of any securities laws or regulations conflict with the provisions of this Indenture relating to an Asset Sale Offer, the Company shall comply with the applicable securities laws and regulations and will not be deemed to have breached its obligations under this Indenture by virtue of such conflict.
Appears in 1 contract
Sources: Indenture (Macdermid Inc)
Asset Sales. (a) From and after the Completion Date, the The Company shall not consummatenot, and shall not permit any of its Restricted Subsidiaries to consummateto, consummate an Asset Sale, unless:
Sale unless (1i) the Company (or such the Restricted Subsidiary, as the case may be, ) receives consideration at the time of such Asset Sale at least equal to the fair market value (as determined in good faith by the Company at the time of contractually agreeing to such Asset Sale) of the assets sold or otherwise disposed of; and
(2) except in the case of a Permitted Asset Swap, if the property or assets Equity Interests sold or otherwise disposed of have (evidenced by a fair market value in excess resolution of the greater Board of $375.0 million and 50.0% of LTM EBITDA for the most recently ended Test Period at the time Directors of such disposition, entity set forth in an Officers' Certificate delivered to the Trustee) and (ii) at least 75.075% of the consideration therefor received by the Company or such Restricted SubsidiarySubsidiary from such Asset Sale, as plus all other Asset Sales since the case may bedate hereof, on a cumulative basis, is in the form of cash or cash, Cash Equivalents, properties and capital assets to be used by the Company or any Restricted Subsidiary in the Oil and Gas Business or oil and gas properties owned or held by another Person which are to be used in the Oil and Gas Business of the Company or its Restricted Subsidiaries, or any combination thereof (collectively the "Cash Consideration" ); provided that the amount of:
of (Ax) any liabilities, contingent liabilities (as shown on the Company's or otherwise, such Restricted Subsidiary's most recent balance sheet) of the Company or such any Restricted Subsidiary, Subsidiary (other than contingent liabilities and liabilities that are by their terms subordinated to the Notes or any Subsidiary Guarantee) that are owed to the Company or a Restricted Subsidiary that (x) are assumed by the transferee of any such assets (pursuant to a customary novation agreement that releases the Company or a third party in connection with such transfer) or Restricted Subsidiary from further liability and (y) are otherwise cancelled or terminated in connection with the transaction with such transferee (other than intercompany debt owed to the Company or its Restricted Subsidiaries) and, in each case, for which the Company and all of its Restricted Subsidiaries have been validly released,
(B) any securities, notes or other obligations or assets non Cash Consideration received by the Company or any such Restricted Subsidiary from such transferee that are converted into cash by the Company or such Restricted Subsidiary into within 90 days after such Asset Sale, shall be deemed to be cash or Cash Equivalents (for purposes of this provision to the extent of the cash or Cash Equivalents received) within 180 days following the closing of such Asset Sale;
(C) Indebtedness of any Restricted Subsidiary that ceases to be a Restricted Subsidiary as a result of such Asset Sale (other than intercompany debt owed to the Company or any Restricted Subsidiary), to the extent that the Company and each other Restricted Subsidiary are released from any guarantee of payment of the principal amount of such Indebtedness in connection with such Asset Sale in accordance with the terms of this Indenture;
(D) consideration consisting of Indebtedness of the Issuers or a Guarantor (other than intercompany debt owed to the Company or any Restricted Subsidiary and other than Subordinated Indebtedness) received after the Issue Date from Persons who are not the Company, Holdings or any Restricted Subsidiary;
(E) any Designated Non-cash Consideration received by the Company or such Restricted Subsidiary in such Asset Sale having an aggregate fair market value, as determined by the Company, taken together with all other Designated Non-cash Consideration received pursuant to this clause (E) that is at that time outstanding, not to exceed the greater of $225.0 million and 30.0% of LTM EBITDA for the most recently ended Test Period at the time of the receipt of |US-DOCS\143900591.2|| such Designated Non-cash Consideration (with the fair market value of each such item of Designated Non-cash Consideration being measured pursuant to this clause (E) at the Company’s option, either at the time of contractually agreeing to such Asset Sale or at the time received and, in either case, without giving effect to subsequent changes in value); and
(F) any Investment, Capital Stock, assets, property or capital or other expenditure of the kind referred to in clauses (2) or (3) of Section 4.10(b) hereof shall be deemed to be Cash Equivalents for purposes of this provision and for no other purpose.
(b) . Within 540 360 days after the receipt of any Net Proceeds of any from an Asset Sale Sale, the Company (or the “Proceeds Application Period”)Restricted Subsidiary, as applicable) may apply, or enter into binding contracts (subject only to obtaining required governmental approvals) irrevocably committing the Company or such Restricted Subsidiary to apply, such Net Proceeds to an investment in another business, the making of a capital expenditure or the acquisition of other tangible assets, in each case in the Oil and Gas Business, or the Company (or the Restricted Subsidiary, at their option, as applicable) may apply such Net Proceeds to the permanent reduction of Senior Debt. Any Net Proceeds from Asset Sales that are not applied or invested or committed to be applied or invested, as provided in the preceding sentence of this paragraph will be deemed to constitute "Excess Proceeds." On the 361st day after an Asset Sale, if the aggregate amount of Excess Proceeds exceeds $10.0 million, the Company will be required to make an offer to all Holders of Notes and, to the extent required by the terms thereof, to all holders or lenders of Pari Passu Indebtedness (an "Asset Sale Offer") to purchase the maximum principal amount of Notes and any such Pari Passu Indebtedness to which the asset sale offer applies that may be purchased out of the Excess Proceeds, at an offer price in cash in an amount equal to 100% of the Net Proceeds from such Asset Sale,
(1) to reduceprincipal amount thereof plus accrued and unpaid interest and, prepay, repay or purchase:
(A) with respect to the extent such Net Proceeds are from an Asset Sale of CollateralNotes or similar securities, Obligations with Pari Passu Lien Priority (including the Senior Credit Facilities Liquidated Damages or any Refinancing Indebtedness in respect thereof but other than Indebtedness owed to the Company or any Restricted Subsidiary), and, comparable amounts in the case of revolving obligationssimilar securities, to correspondingly reduce commitments with respect theretoif any, provided that, thereon to the extent either Issuer or any Restricted Subsidiary will so repay any such Indebtedness (other than the Notes)date of purchase, the Issuers shall reduce Obligations under the Notes on a pro rata basis by, at their option, (i) redeeming Notes as provided under Section 3.07 hereof (ii) purchasing Notes through open-market purchases or (iii) by making an offer (in accordance with the procedures set forth herein for in Section 3.10 hereof or the agreements governing the Pari Passu Indebtedness, as applicable. To the extent that the aggregate amount of Notes and Pari Passu Indebtedness so validly tendered and not properly withdrawn pursuant to an Asset Sale Offer) to all Holders to purchase their Notes at a purchase price equal to 100.0% of Offer is less than the Excess Proceeds, the Company may use any remaining Excess Proceeds for general corporate purposes. If the aggregate principal amount of Notes surrendered by Holders thereof and other Pari Passu Indebtedness surrendered by holders or lenders thereof, plus collectively, exceeds the amount of accrued but unpaid interestExcess Proceeds, if any, on the principal amount of Trustee shall select the Notes and Pari Passu Indebtedness to be repurchased to the date of repurchase;
(B) to the extent such Net Proceeds resulted from an Asset Sale not consisting of Collateral, Obligations in respect of other Secured Indebtedness (which may include the Notes), and, in the case of revolving commitments, to correspondingly reduce commitments with respect thereto;
(C) Obligations in respect of the Notes or any other Indebtedness (other than Subordinated Indebtedness) of the Company or any Restricted Subsidiary, other than Indebtedness owed to the Company or any Restricted Subsidiary (and, in the case of revolving commitments, to correspondingly reduce commitments with respect thereto), provided that, to the extent either Issuer or any Restricted Subsidiary will so repay any such Indebtedness (other than the Notes), the Issuers will reduce Obligations under the Notes purchased on a pro rata basis byon the basis of the aggregate principal amount of tendered Notes and Pari Passu Indebtedness. Upon completion of such Asset Sale Offer, the amount of Excess Proceeds shall be reset at their option, (i) redeeming Notes as provided under Section 3.07 hereof or (ii) by making an offer (in accordance zero. The Company shall comply with the procedures set forth herein for requirements of Rule 14e-1 under the Exchange Act and any other securities laws and regulations thereunder to the extent such laws or regulations are applicable in connection with the repurchase of the Notes pursuant to an Asset Sale Offer) to all Holders to purchase their Notes at a purchase price equal to 100.0% . To the extent that the provisions of any securities laws or regulations conflict with the principal amount thereofprovisions of this Indenture, plus the amount of accrued but unpaid interest, if any, on the principal amount of the Notes to be repurchased to the date of repurchase; or |US-DOCS\143900591.2||
(D) Obligations in respect of Indebtedness of a Non-Guarantor Subsidiary, other than Indebtedness owed to the Company or another Restricted Subsidiary; provided, in will comply with the case of clauses (A) or (C) above, (i) if an offer to purchase any Indebtedness of the Company or any Restricted Subsidiary is made, such amount will be deemed repaid to the extent of the amount of such offer, whether or applicable securities laws and regulations and shall not accepted by the holders of such Indebtedness, and no Net Proceeds in the amount of such offer will be deemed to exist following such offer, and (ii) if the holder of any Indebtedness of a Restricted Subsidiary of the Company declines the repayment of such Indebtedness owed to it from such Net Proceeds such amount will be deemed repaid to the extent of the declined Net Proceeds, or
(2) to make an Investment have breached its obligations described in (A) any one or more businesses, provided that such Investment in any business is in the form of the acquisition of Capital Stock that results in the Company or any Restricted Subsidiary, as the case may be, owning an amount of the Capital Stock of such business such that such business constitutes a Restricted Subsidiary or increases the Company’s direct or indirect percentage ownership of the Capital Stock of a Restricted Subsidiary;this Indenture by virtue thereof.
Appears in 1 contract
Sources: Indenture (Houston Exploration Co)
Asset Sales. (a) From and after the Completion Date, the Company Holdings shall not consummatenot, and shall not permit any of its Restricted Subsidiaries to, cause, make or suffer to consummate, exist an Asset Sale, unless after giving effect thereto, Holdings shall continue to own directly or indirectly 100% of the Equity Interests of the Issuer and WNA, and unless:
(1i) the Company Holdings or such Restricted Subsidiary, as the case may be, receives consideration at the time of such Asset Sale at least equal to the fair market value (as determined in good faith by the Company at the time of contractually agreeing to such Asset SaleIssuer or Holdings) of the assets sold or otherwise disposed of; and
(2ii) except in the case of a Permitted Asset Swap, if the property or assets sold or otherwise disposed of have a fair market value in excess of the greater of $375.0 million and 50.0% of LTM EBITDA for the most recently ended Test Period at the time of such disposition, at least 75.075% of the consideration therefor received by the Company such Obligor or such Restricted Subsidiary, as the case may be, is in the form of cash or Cash Equivalents; provided that the amount of:
(A) any liabilities, contingent liabilities (as shown on Holdings' or otherwise, such Subsidiary's most recent balance sheet or in the footnotes thereto) of the Company Issuer or such Restricted Subsidiary, other than liabilities that are by their terms subordinated to the Notes or Notes, that are owed to the Company or a Restricted Subsidiary that (x) are assumed by the transferee of any such assets (or a third party in connection with such transfer) or (y) are otherwise cancelled or terminated in connection with the transaction with such transferee (other than intercompany debt owed to the Company or its Restricted Subsidiaries) and, in each case, and for which the Company Issuer and all of its Restricted Subsidiaries have been validly released,released by all creditors in writing, and
(B) any securities, notes or other obligations or assets securities received by the Company Holdings or such Restricted Subsidiary from such transferee that are converted by the Company Holdings or such Restricted Subsidiary into cash or Cash Equivalents (to the extent of the cash or Cash Equivalents received) within 180 days following the closing of such Asset Sale;
(C) Indebtedness of any Restricted Subsidiary that ceases to be a Restricted Subsidiary as a result of such Asset Sale (other than intercompany debt owed to the Company or any Restricted Subsidiary), to the extent that the Company and each other Restricted Subsidiary are released from any guarantee of payment of the principal amount of such Indebtedness in connection with such Asset Sale in accordance with the terms of this Indenture;
(D) consideration consisting of Indebtedness of the Issuers or a Guarantor (other than intercompany debt owed to the Company or any Restricted Subsidiary and other than Subordinated Indebtedness) received after the Issue Date from Persons who are not the Company, Holdings or any Restricted Subsidiary;
(E) any Designated Non-cash Consideration received by the Company or such Restricted Subsidiary in such Asset Sale having an aggregate fair market value, as determined by the Company, taken together with all other Designated Non-cash Consideration received pursuant to this clause (E) that is at that time outstanding, not to exceed the greater of $225.0 million and 30.0% of LTM EBITDA for the most recently ended Test Period at the time of the receipt of |US-DOCS\143900591.2|| such Designated Non-cash Consideration (with the fair market value of each such item of Designated Non-cash Consideration being measured pursuant to this clause (E) at the Company’s option, either at the time of contractually agreeing to such Asset Sale or at the time received and, in either case, without giving effect to subsequent changes in value); and
(F) any Investment, Capital Stock, assets, property or capital or other expenditure of the kind referred to in clauses (2) or (3) of Section 4.10(b) hereof shall be deemed to be Cash Equivalents cash for purposes of this provision and for no other purpose.
(b) Within 540 270 days after the receipt of any Net Proceeds of any Asset Sale (the “Proceeds Application Period”)Sale, the Company Holdings or such Restricted Subsidiary, at their its option, may apply an amount equal to the Net Proceeds from such Asset Sale,:
(1i) to permanently reduce, prepay, repay or purchase:
(A) to Obligations under the extent such Net Proceeds are from an Asset Sale of CollateralCredit Facilities, Obligations with Pari Passu Lien Priority (including the Senior Credit Facilities or any Refinancing Indebtedness in respect thereof but other than Indebtedness owed to the Company or any Restricted Subsidiary), and, in the case of revolving obligations, and to correspondingly reduce commitments with respect thereto, provided that, to the extent either Issuer or any Restricted Subsidiary will so repay any such Indebtedness (other than the Notes), the Issuers shall reduce Obligations under the Notes on a pro rata basis by, at their option, (i) redeeming Notes as provided under Section 3.07 hereof (ii) purchasing Notes through open-market purchases or (iii) by making an offer (in accordance with the procedures set forth herein for an Asset Sale Offer) to all Holders to purchase their Notes at a purchase price equal to 100.0% of the principal amount thereof, plus the amount of accrued but unpaid interest, if any, on the principal amount of the Notes to be repurchased to the date of repurchase;; or
(B) to the extent such Net Proceeds resulted from an Asset Sale not consisting Indebtedness of Collateral, Obligations in respect of other Secured Indebtedness (which may include the Notes), and, in the case of revolving commitments, to correspondingly reduce commitments with respect thereto;
(C) Obligations in respect of the Notes or any other Indebtedness (other than Subordinated Indebtedness) of the Company or any Restricted Subsidiarya Non-Obligor, other than Indebtedness owed to the Company Holdings or any Restricted Subsidiary (and, in the case of revolving commitments, to correspondingly reduce commitments with respect thereto), provided that, to the extent either Issuer or any Restricted Subsidiary will so repay any such Indebtedness (other than the Notes), the Issuers will reduce Obligations under the Notes on a pro rata basis by, at their option, (i) redeeming Notes as provided under Section 3.07 hereof or (ii) by making an offer (in accordance with the procedures set forth herein for an Asset Sale Offer) to all Holders to purchase their Notes at a purchase price equal to 100.0% of the principal amount thereof, plus the amount of accrued but unpaid interest, if any, on the principal amount of the Notes to be repurchased to the date of repurchase; or |US-DOCS\143900591.2||
(D) Obligations in respect of Indebtedness of a Non-Guarantor Subsidiary, other than Indebtedness owed to the Company or another Restricted Subsidiary; provided, in the case of clauses (A) or (C) above, (i) if an offer to purchase any Indebtedness of the Company or any Restricted Subsidiary is made, such amount will be deemed repaid to the extent of the amount of such offer, whether or not accepted by the holders of such Indebtedness, and no Net Proceeds in the amount of such offer will be deemed to exist following such offer, and (ii) if the holder of any Indebtedness of a Restricted Subsidiary of the Company declines the repayment of such Indebtedness owed to it from such Net Proceeds such amount will be deemed repaid to the extent of the declined Net Proceedsits Subsidiaries, or
(2ii) to make an a Permitted Investment in (A) in any one or more businesses, provided that such Permitted Investment in any business is in the form of the acquisition of Capital Stock that and results in the Company Holdings or any Restricted Subsidiary, as the case may be, of its Wholly-Owned Subsidiaries owning an amount of the Capital Stock of such business such that such business it constitutes a Restricted Subsidiary Wholly-Owned Subsidiary; (B) that are capital expenditures; or increases (C) that are acquisitions of other assets, in each of (A), (B) and (C), used or useful in a Similar Business.
(c) Any Net Proceeds from the Company’s direct Asset Sale that are not invested or indirect percentage ownership applied as provided and within the time period set forth in Section 4.10(b) hereof shall be deemed to constitute "Excess Proceeds." When the aggregate amount of Excess Proceeds exceeds $200,000,000.00, the Issuer shall make an offer to all Holders of the Capital Stock Notes (an "Asset Sale Offer"), to purchase the maximum aggregate principal amount of the Notes that is an integral multiple of $1,000 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 thereon 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 $200,000,000.00 by delivering the notice required pursuant to the terms of this Indenture, with a Restricted Subsidiary;copy to the Trustee. To the extent that the aggregate amount of Notes 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 the covenants contained in this Indenture. If the aggregate principal amount of Notes surrendered by such Holders thereof exceeds the amount of Excess Proceeds, the Trustee shall select the Notes to be purchased on a pro rata basis based on the accreted value or principal amount of the Notes tendered. Upon completion of any such Asset Sale Offer, the amount of Excess Proceeds shall be reset to zero.
(d) Pending the final application of any Net Proceeds pursuant to this Section 4.10, the holder of such Net Proceeds may apply such Net Proceeds temporarily to reduce Indebtedness outstanding under a revolving credit facility or otherwise invest such Net Proceeds in any manner not prohibited by this Indenture.
(e) 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 laws or regulations are applicable in connection with the repurchase of the Notes pursuant to an Asset Sale Offer. To the extent that the provisions of any securities laws or regulations conflict with the provisions of this Indenture, the Issuer shall comply with the applicable securities laws and regulations and shall not be deemed to have breached its obligations described in this Indenture by virtue thereof.
Appears in 1 contract
Asset Sales. (a) From and after the Completion Date, the The Company shall not consummatewill not, and shall will not permit any of its Restricted Subsidiaries to consummateto, consummate an Asset Sale, unless:
(1) the Company (or such 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 (as determined in good faith by the Company at the time of contractually agreeing to such Asset Sale) Fair Market Value of the assets or Equity Interests issued or sold or otherwise disposed of; and
(2) except in the case of a Permitted Asset Swap, if the property or assets sold or otherwise disposed of have a fair market value in excess of the greater of $375.0 million and 50.0% of LTM EBITDA for the most recently ended Test Period at the time of such disposition, at least 75.075% of the consideration therefor received in the Asset Sale by the Company or such Restricted Subsidiary, as the case may be, Subsidiary is in the form of cash or Cash Equivalents; provided that , or any combination thereof. For purposes of this provision, each of the amount offollowing will be deemed to be cash:
(A) any liabilities, contingent as shown on the Company’s or otherwisesuch Restricted Subsidiary’s most recent balance sheet, of the Company or such any Restricted Subsidiary, Subsidiary (other than contingent liabilities and liabilities that are by their terms subordinated to the Notes or any Subsidiary Guarantee) that are owed to the Company or a Restricted Subsidiary that (x) are assumed by the transferee of any such assets (or pursuant to a third party in connection with such transfer) or (y) are otherwise cancelled or terminated in connection with the transaction with such transferee (other than intercompany debt owed to customary novation agreement that releases the Company or its such Restricted Subsidiaries) and, in each case, for which the Company and all of its Restricted Subsidiaries have been validly released,Subsidiary from further liability;
(B) any securities, notes or other obligations or assets received by the Company or any such Restricted Subsidiary from such transferee that are converted by the Company or such Restricted Subsidiary into cash or Cash Equivalents (to the extent of the cash or Cash Equivalents received) within 180 days following the closing of such Asset Sale;, to the extent of the cash or Cash Equivalents received in that conversion; and
(C) Indebtedness the Fair Market Value of all forms of consideration other than cash or Cash Equivalents received for all Asset Sales since the Issue Date does not exceed in the aggregate 10.0% of Consolidated Net Worth of the Company at the time each determination is made. Any Asset Sale pursuant to an Involuntary Transfer shall not be required to satisfy the conditions set forth in clauses (1) and (2) of this paragraph (a).
(b) Within 365 days after the receipt of any Restricted Subsidiary that ceases to be Net Proceeds from an Asset Sale (including, without limitation, an Involuntary Transfer), the Company or a Restricted Subsidiary of the Company, as a result the case may be, may apply those Net Proceeds at its option as follows:
(1) to prepay, repay, purchase, repurchase, redeem, defease or otherwise acquire or retire Senior Debt of such Asset Sale (other than intercompany debt owed to the Company or any Restricted Subsidiary), to the extent that the Company and each other Restricted Subsidiary are released from any guarantee of payment of the principal amount of such Indebtedness in connection with such Asset Sale in accordance with the terms of this Indenture;
(D) consideration consisting of Indebtedness of the Issuers or a Guarantor (other than intercompany debt owed to the Company or any Restricted Subsidiary and other than Subordinated Indebtedness) received after the Issue Date from Persons who are not the Company, Holdings or any Restricted Subsidiary;
(E2) any Designated Nonto acquire all or substantially all of the assets of, or a majority of the Voting Stock of, a Permitted Business;
(3) to make a capital expenditure in a Permitted Business; or
(4) to acquire other non-cash Consideration received by the current assets that are used or useful in a Permitted Business. The Company or such the applicable Restricted Subsidiary in such Asset Sale having an aggregate fair market value, as determined by the Company, taken together will be deemed to have complied with all other Designated Non-cash Consideration received pursuant to this clause (E) that is at that time outstanding, not to exceed the greater of $225.0 million and 30.0% of LTM EBITDA for the most recently ended Test Period at the time of the receipt of |US-DOCS\143900591.2|| such Designated Non-cash Consideration (with the fair market value of each such item of Designated Non-cash Consideration being measured pursuant to this clause (E) at the Company’s option, either at the time of contractually agreeing to such Asset Sale or at the time received and, in either case, without giving effect to subsequent changes in value); and
(F) any Investment, Capital Stock, assets, property or capital or other expenditure of the kind referred to in clauses (2) or (3) of Section 4.10(b) hereof shall be deemed to be Cash Equivalents for purposes of this provision and for no other purpose.
paragraph (b) Within 540 if, within 365 days after the receipt of any Net Proceeds of any such Asset Sale (the “Proceeds Application Period”)Sale, the Company or such Restricted SubsidiarySubsidiary shall have commenced and not completed or abandoned an expenditure or Investment, at their optionor a binding agreement with respect to an expenditure or Investment, may apply an amount equal to in compliance with clause (2) or (3), and that expenditure or Investment is substantially completed within a date one year and six months after the date of such Asset Sale. Pending the final application of any Net Proceeds, the Company will temporarily reduce any Credit Facility or other revolving credit borrowings, or, in the absence of any such borrowings, invest the Net Proceeds from such Asset Sale,in any manner that is not prohibited by this Indenture.
(1c) to reduce, prepay, repay or purchase:
(A) to the extent such Any Net Proceeds from Asset Sales that are from not applied or invested as provided in paragraph (b) of this Section 4.19 will constitute “Excess Proceeds.” When the aggregate amount of Excess Proceeds exceeds $20.0 million, the Company will, within thirty days thereafter, make an Asset Sale Offer to all Holders of Collateral, Obligations with Pari Passu Lien Priority (including the Senior Credit Facilities or any Refinancing Indebtedness in respect thereof but other than Indebtedness owed to the Company or any Restricted Subsidiary), Notes and, in the case of revolving obligations, to correspondingly reduce commitments with respect thereto, provided that, to the extent either Issuer or any Restricted Subsidiary will so repay any such required, all holders of other Indebtedness (other than of the Notes), the Issuers shall reduce Obligations under Company that is pari passu with the Notes on a pro rata basis bycontaining provisions similar to those set forth in this Indenture with respect to offers to purchase or redeem with the proceeds of sales of assets, at their option, (i) redeeming to purchase the maximum principal amount of Notes as provided under Section 3.07 hereof (ii) purchasing Notes through open-market purchases or (iii) by making an offer (in accordance with integral multiples of $2,000) and such other pari passu Indebtedness that may be purchased out of the procedures set forth herein for an Excess Proceeds.
(d) The offer price in any Asset Sale Offer) to all Holders to purchase their Notes at a purchase price Offer will be equal to 100.0100% of the principal amount thereofof Notes and other pari passu Indebtedness to be purchased or the lesser amount required under agreements governing such other pari passu Indebtedness, plus the amount of accrued but and unpaid interestinterest and Additional Interest, if any, on the principal amount of the Notes to be repurchased thereon to the date of repurchase;purchase, and will be payable in cash.
(Be) to the extent such Net If any Excess Proceeds resulted from remain after consummation of an Asset Sale Offer, the Company may use those Excess Proceeds for any purpose not consisting of Collateral, Obligations in respect of other Secured Indebtedness (which may include the Notes), and, in the case of revolving commitments, to correspondingly reduce commitments with respect thereto;prohibited by this Indenture.
(Cf) Obligations in respect 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 will select the Notes or any and such other pari passu Indebtedness (other than Subordinated Indebtedness) of the Company or any Restricted Subsidiary, other than Indebtedness owed to the Company or any Restricted Subsidiary (and, in the case of revolving commitments, to correspondingly reduce commitments with respect thereto), provided that, to the extent either Issuer or any Restricted Subsidiary will so repay any such Indebtedness (other than the Notes), the Issuers will reduce Obligations under the Notes be purchased on a pro rata basis bybasis. Upon completion of each Asset Sale Offer, the amount of Excess Proceeds will be reset at their optionzero.
(g) The Company will not, and will not permit any of its Restricted Subsidiaries to, enter into or permit to exist any agreement (iother than any agreement governing Credit Facilities for Indebtedness permitted to be incurred pursuant to clause (1) redeeming Notes as provided under of paragraph (b) of Section 3.07 hereof 4.08 (“Incurrence of Indebtedness and Issuance of Preferred Stock”) that would place any restriction of any kind (other than pursuant to law or (iiregulation) by making an offer (in accordance with on the procedures set forth herein for ability of the Company to make an Asset Sale Offer) to all Holders to purchase their Notes at a purchase price equal to 100.0% of the principal amount thereof, plus the amount of accrued but unpaid interest, if any, on the principal amount of the Notes to be repurchased to the date of repurchase; or |US-DOCS\143900591.2||
(D) Obligations in respect of Indebtedness of a Non-Guarantor Subsidiary, other than Indebtedness owed to the Company or another Restricted Subsidiary; provided, in the case of clauses (A) or (C) above, (i) if an offer to purchase any Indebtedness of the Company or any Restricted Subsidiary is made, such amount will be deemed repaid to the extent of the amount of such offer, whether or not accepted by the holders of such Indebtedness, and no Net Proceeds in the amount of such offer will be deemed to exist following such offer, and (ii) if the holder of any Indebtedness of a Restricted Subsidiary of the Company declines the repayment of such Indebtedness owed to it from such Net Proceeds such amount will be deemed repaid to the extent of the declined Net Proceeds, or
(2) 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 that results in the Company or any Restricted Subsidiary, as the case may be, owning an amount of the Capital Stock of such business such that such business constitutes a Restricted Subsidiary or increases the Company’s direct or indirect percentage ownership of the Capital Stock of a Restricted Subsidiary;.
Appears in 1 contract
Sources: Indenture (Pioneer Drilling Co)
Asset Sales. (a) From and after the Completion Date, the The Company shall not consummatenot, and shall not permit any of its the Restricted Subsidiaries to consummateto, cause or make an Asset Sale, unless:
unless (1x) the Company or such any 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 (as determined in good faith by the Company at the time of contractually agreeing to such Asset SaleCompany) of the assets sold or otherwise disposed of; and
, and (2y) except in the case of a Permitted Asset Swap, if the property or assets sold or otherwise disposed of have a fair market value in excess of the greater of $375.0 million and 50.0% of LTM EBITDA for the most recently ended Test Period at the time of such disposition, at least 75.075% of the consideration therefor received by the Company or such Restricted Subsidiary, as the case may be, is in the form of cash or Cash Equivalents; provided that the amount of:
(Ai) any liabilities, contingent liabilities (as shown on the Company’s or otherwise, a Restricted Subsidiary’s most recent balance sheet or in the notes thereto) of the Company or such a Restricted Subsidiary, Subsidiary (other than liabilities that are by their terms subordinated to the Notes or any Guarantee) that are owed to the Company or a Restricted Subsidiary that (x) are assumed by the transferee of any such assets (or a third party in connection with such transfer) or (y) that are otherwise cancelled or terminated in connection with the transaction with such transferee (other than intercompany debt owed to the Company or its Restricted Subsidiaries) and, in each case, for which the Company and all of its Restricted Subsidiaries have been validly releasedtransferee,
(Bii) any securities, notes or other obligations or other securities or assets received by the Company or such Restricted Subsidiary from such transferee that 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) within 180 days following the closing of such Asset Sale;),
(Ciii) Indebtedness of any Restricted Subsidiary that ceases to be is no longer a Restricted Subsidiary as a result of such Asset Sale (other than intercompany debt owed to the Company or any Restricted Subsidiary)Sale, to the extent that the Company and each other Restricted Subsidiary are released from any guarantee of payment of the principal amount of such Indebtedness in connection with such the Asset Sale in accordance with the terms of this Indenture;Sale,
(Div) consideration consisting of Indebtedness of the Issuers or a Guarantor Company (other than intercompany debt owed to the Company or any Restricted Subsidiary and other than Subordinated Indebtedness) received after the Issue Date from Persons who are not the Company, Holdings Company or any Restricted Subsidiary;, and
(Ev) any Designated Non-cash Consideration received by the Company or such any Restricted Subsidiary in such Asset Sale having an aggregate fair market value, Fair Market Value (as determined in good faith by the Company), taken together with all other Designated Non-cash Consideration received pursuant to this clause (ESection 4.06(a)(v) that is at that time outstanding, not to exceed the greater of $225.0 225 million and 30.025% of LTM Consolidated EBITDA for the most recently ended Test Period at the time of the receipt of |US-DOCS\143900591.2|| such Designated Non-cash Consideration (with the fair market value Fair Market Value of each such item of Designated Non-cash Consideration being measured pursuant to this clause (E) at the Company’s option, either at the time of contractually agreeing to such Asset Sale or at the time received and, in either case, and without giving effect to subsequent changes in value); and
(F) any Investment, Capital Stock, assets, property or capital or other expenditure of the kind referred to in clauses (2) or (3) of Section 4.10(b) hereof shall be deemed to be Cash Equivalents for the purposes of this provision and for no other purposeSection 4.06(a).
(b) Within 540 365 days after the Company’s or any Restricted Subsidiary’s receipt of any the Net Proceeds of any Asset Sale (the “Proceeds Application Period”)Sale, the Company or such Restricted Subsidiary, at their option, Subsidiary may apply an amount equal to the Net Proceeds from such Asset Sale,
(1) to reduce, prepay, repay or purchaseat its option:
(i) to repay (A) to the extent such Net Proceeds are from an Asset Sale of Collateral, Obligations with Indebtedness constituting Bank Indebtedness and other Pari Passu Indebtedness that is secured by a Lien Priority (including the Senior Credit Facilities or any Refinancing Indebtedness in respect thereof but other than Indebtedness owed to the Company or any Restricted Subsidiary), and, in the case of revolving obligations, to correspondingly reduce commitments with respect thereto, provided that, to the extent either Issuer or any Restricted Subsidiary will so repay any such Indebtedness (other than the Notes), the Issuers shall reduce Obligations permitted under the Notes on a pro rata basis by, at their option, (i) redeeming Notes as provided under Section 3.07 hereof (ii) purchasing Notes through open-market purchases or (iii) by making an offer (in accordance with the procedures set forth herein for an Asset Sale Offer) to all Holders to purchase their Notes at a purchase price equal to 100.0% of the principal amount thereof, plus the amount of accrued but unpaid interest, if any, on the principal amount of the Notes to be repurchased to the date of repurchase;
(B) to the extent such Net Proceeds resulted from an Asset Sale not consisting of Collateral, Obligations in respect of other Secured Indebtedness (which may include the Notes), and, in the case of revolving commitments, to correspondingly reduce commitments with respect thereto;
(C) Obligations in respect of the Notes or any other Indebtedness (other than Subordinated Indebtedness) of the Company or any Restricted Subsidiary, other than Indebtedness owed to the Company or any Restricted Subsidiary this Indenture (and, in if the case of Indebtedness repaid is revolving commitmentscredit Indebtedness, to correspondingly reduce commitments with respect thereto), provided that, to the extent either Issuer or any Restricted Subsidiary will so repay any such Indebtedness (other than the Notes), the Issuers will reduce Obligations under the Notes on a pro rata basis by, at their option, (i) redeeming Notes as provided under Section 3.07 hereof or (ii) by making an offer (in accordance with the procedures set forth herein for an Asset Sale Offer) to all Holders to purchase their Notes at a purchase price equal to 100.0% of the principal amount thereof, plus the amount of accrued but unpaid interest, if any, on the principal amount of the Notes to be repurchased to the date of repurchase; or |US-DOCS\143900591.2||
(D) Obligations in respect of Indebtedness of a Non-Guarantor Subsidiary, other than Indebtedness owed to the Company or another Restricted Subsidiary; provided, in the case of clauses (A) or (C) above, (i) if an offer to purchase any Indebtedness of the Company or any Restricted Subsidiary is made, such amount will be deemed repaid to the extent of the amount of such offer, whether or not accepted by the holders of such Indebtedness, and no Net Proceeds in the amount of such offer will be deemed to exist following such offer, and (ii) if the holder of any Indebtedness of a Restricted Subsidiary of the Company declines the repayment of such Indebtedness owed to it from such Net Proceeds such amount will be deemed repaid to the extent of the declined Net Proceeds, or
(2) 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 that results in the Company or any Restricted Subsidiary, as the case may be, owning an amount of the Capital Stock of such business such that such business constitutes a Restricted Subsidiary or increases the Company’s direct or indirect percentage ownership of the Capital Stock of a Restricted Subsidiary;,
Appears in 1 contract
Sources: Indenture (XPO Logistics, Inc.)
Asset Sales. (a) From and after the Completion Date, the The Company shall not consummatenot, and shall not permit any of its Restricted Subsidiaries Subsidiary to consummate, directly or indirectly, an Asset Sale, unless:
(1) the Company or such Restricted Subsidiary, as the case may be, receives consideration at the time of such Asset Sale at least equal to the fair market value (as determined in good faith by the Company (including by way of relief from or by any other Person assuming responsibility for, any liabilities, contingent or otherwise, in connection with such Asset Sale) at the time of contractually agreeing to such Asset Salesale) of the assets sold or otherwise disposed of; and
(2) except in the case of a Permitted Asset Swap, if the property or assets sold or otherwise disposed of have in any such Asset Sale with a fair market value purchase price in excess of the greater of (x) $375.0 million 110,000,000 and 50.0% of LTM (y) 0.15 multiplied by Pro Forma Consolidated EBITDA for the most recently ended Test Applicable Measurement Period (measured at the time of contractually agreeing to such dispositionAsset Sale), (A) at least 75.0% of the aggregate consideration therefor received by (measured at the time contractually agreeing to such Asset Sale) for all Asset Sales consummated since the Effective Date is in the form of cash or Cash Equivalents or (B) at least 50.0% of the aggregate consideration (measured at the time contractually agreeing to such Asset Sale) for such Asset Sale is in the form of cash or Cash Equivalents.
(b) Within 24 months after the later of (x) the date of any such Asset Sale and (y) the receipt of any Net Proceeds of any such Asset Sale, the Company or such Restricted Subsidiary, at its option, may apply the Applicable Percentage of the Net Proceeds from such Asset Sale (the “Applicable Proceeds”),
(1) to reduce:
(A) Obligations under the Notes (which for avoidance of doubt, may be made by redemption or open-market purchases);
(B) Equal Priority Obligations other than the Secured Notes (and to correspondingly reduce commitments with respect thereto); provided that if the Company or such Restricted Subsidiary shall so reduce any Equal Priority Obligations other than the Notes, the Company or such Restricted Subsidiary will either (A) reduce Obligations under the Notes on a pro rata basis with such other Equal Priority Obligations by either redeeming Notes as described under Section 3.07 or by purchasing Notes through open-market purchases or in privately negotiated transactions at market prices or (B) make an offer (in accordance with the procedures set forth below for an Asset Sale Offer) to all Holders to purchase their Notes on a ratable basis with such other Equal Priority Obligations for no less than 100% of the principal amount thereof, plus the amount of accrued but unpaid interest, if any, thereon; or
(C) Indebtedness of a Restricted Subsidiary that is not a Guarantor, other than Indebtedness owed to the Company or another Restricted Subsidiary;
(2) other than in connection with an Asset Sale described under Section 4.10(a)(2)(B), 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 Company or a Restricted Subsidiary, as the case may be, is owning an amount of the Capital Stock of such business such that it constitutes or continues to constitute a Restricted Subsidiary, (B) Capital Expenditures or (C) acquisitions of other assets or other investment in the form of cash or Cash Equivalents; provided that the amount of:
(A) any liabilities, contingent or otherwise, business of the Company or the Restricted Subsidiaries that, in each of (A), (B) and (C), either (i) are used or useful in a Similar Business or (ii) replace in whole or in part the businesses or assets that are the subject of such Asset Sale; provided, further, that the Company may elect to deem any Investment, Capital Expenditure, acquisition or investment within the scope of the foregoing clauses (A), (B) or (C), as applicable, that occurs prior to the receipt of the Applicable Proceeds from such Asset Sale to have been invested in accordance with this clause (2) (it being agreed that such deemed Investment, Capital Expenditure, acquisition or investment shall have been made no earlier than the earliest of (x) notice of such Asset Sale, (y) execution of a definitive agreement for such Asset Sale, if applicable, and (z) consummation of such Asset Sale); or
(3) any combination of the foregoing excluding, in the case of an Asset Sale described under Section 4.10(a)(2)(B), the immediately preceding clause (2); provided that, in the case of Section 4.10(b)(2), a binding commitment shall be treated as a permitted application of the Applicable Proceeds 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 Applicable Proceeds shall be applied to satisfy such commitment within the later of (x) 180 days of such commitment and (y) 24 months after the date of the applicable Asset Sale (an “Acceptable Commitment”), and, in the event any Acceptable Commitment is later cancelled or terminated for any reason before the Applicable Proceeds are applied in connection therewith, then such Applicable Proceeds shall constitute Excess Proceeds after the later of (A) 24 months after the date of the applicable Asset Sale and (B) the termination of such Acceptable Commitment (unless another Acceptable Commitment is entered into with respect thereto prior to such later date).
(c) Notwithstanding the foregoing, to the extent that any of or all the Applicable Proceeds of any Asset Sales by an Exempt Entity would have a material adverse tax consequence (taking into account any foreign tax credit or benefit actually realized in connection with such repatriation or expatriation) or is prohibited, delayed, restricted or subject to limitation by applicable local law, rule, regulation, order, decree or determination of any arbitrator, court or governmental authority from being repatriated or expatriated to the United States or distributed to the Company or any Guarantor, the portion of such Applicable Proceeds so affected will not be required to be applied in compliance with this covenant, and such amounts may be retained by the applicable Exempt Entity so long, but only so long, as applicable, as such material adverse tax consequence exists or the applicable local law, rule, regulation, order, decree or determination of any arbitrator, court or governmental authority will not permit repatriation or expatriation to the United States or distribution to the Company or any Guarantor (the Company hereby agreeing to use reasonable efforts to cause the applicable Exempt Entity to take all actions reasonably required by the applicable local law, rule, regulation, order, decree, determination of any arbitrator, court or governmental authority, applicable organizational impediments or other impediment to permit such repatriation, expatriation or distribution), and if such repatriation or expatriation of any of such affected Applicable Proceeds, as applicable, no longer has material adverse tax consequences or is permitted under the applicable local law, rule, regulation, order, decree or determination of any arbitrator, court or governmental authority, such repatriation or expatriation will be promptly effected and such repatriated or expatriated Applicable Proceeds will be applied (net of additional taxes payable or reserved against as a result thereof) (whether or not repatriation or expatriation actually occurs) in compliance with this Section 4.10.
(d) Any Applicable Proceeds from an Asset Sale that are not invested or applied as provided and within the time period set forth in Section 4.10(b) shall be deemed to constitute “Excess Proceeds.” When the aggregate amount of Excess Proceeds exceeds an aggregate of $100,000,000 in any fiscal year (the “Excess Proceeds Threshold”), the Company shall make an offer to all Holders and, if and to the extent required by the terms of any other Equal Priority Obligations, to the holders of such Equal Priority Obligations (an “Asset Sale Offer”), to purchase the maximum aggregate principal amount (or accreted value, as applicable) of the Notes and such Equal Priority Obligations that is equal to $1,000 or an integral multiple of $1,000 in excess thereof that may be purchased in the amount equal to the sum of the Excess Proceeds (the “Excess Proceeds Payment Amount”) at an offer price in cash in an amount equal to 100.0% of the principal amount or accreted value thereof, plus accrued and unpaid interest, if any, to, but excluding, the date fixed for the closing of such offer, in accordance with the procedures set forth in this Indenture and, if applicable, the other documents governing the applicable Equal Priority Obligations. The Company shall commence an Asset Sale Offer with respect to Excess Proceeds within twenty (20) Business Days after the date that Excess Proceeds exceed the Excess Proceeds Threshold by sending the notice required pursuant to the terms of the Equal Priority Obligations Documents and this Indenture, with a copy to the Trustee in the case of this Indenture. The Company may satisfy the foregoing obligation with respect to such Applicable Proceeds from an Asset Sale by making an Asset Sale Offer with respect to all or a portion of the available Applicable Proceeds (the “Advance Portion”) in advance of being required to do so by this Indenture (the “Advance Offer”).
(e) To the extent that the aggregate principal amount (or accreted value, as applicable) of Notes and, if applicable, Equal Priority Obligations tendered pursuant to an Asset Sale Offer is less than the Excess Proceeds Payment Amount (or, in the case of an Advance Offer, the Advance Portion), the Company may use any remaining Excess Proceeds (or, in the case of an Advance Offer, the Advance Portion) for such amount offered in any manner not prohibited by this Indenture. If the aggregate principal amount (or accreted value, as applicable) of Notes or the Equal Priority Obligations surrendered by such Holders and holders thereof exceeds the amount of Excess Proceeds (or, in the case of an Advance Offer, the Advance Portion), the Company shall select the Notes and such Equal Priority Obligations to be purchased on a pro rata basis based on the principal amount or accreted value of the Notes or such Equal Priority Obligations tendered with adjustments as necessary so that no Notes or Equal Priority Obligations, as the case may be, shall be repurchased in part in an unauthorized denomination. Upon completion of any such Asset Sale Offer, the amount of Excess Proceeds shall be reset at zero, but in the case of an Advance Offer, the amount of the Applicable Proceeds the Company is offering to apply in such Advance Offer shall be excluded in subsequent calculations of Excess Proceeds. Additionally, upon consummation or expiration of any Advance Offer, any remaining Applicable Proceeds shall not be deemed Excess Proceeds and the Company may use such Applicable Proceeds for any purpose not otherwise prohibited under this Indenture.
(f) Pending the final application of an amount equal to the Applicable Proceeds pursuant to this Section 4.10, the holder of such Applicable Proceeds may apply such Applicable Proceeds temporarily to reduce Indebtedness outstanding under a revolving credit facility (including under the Senior Credit Agreement) or otherwise invest such Applicable Proceeds in any manner not prohibited by this Indenture. The Company (or any Restricted Subsidiary, as the case may be) may elect to invest in Additional Assets prior to receiving the Applicable Proceeds attributable to any given Asset Sale (provided that such investment shall be made no earlier than the earliest of notice to the Trustee of the relevant Asset Sale, execution of a definitive agreement for the relevant Asset Sale and consummation of the relevant Asset Sale) and deem the amount so invested to be applied pursuant to and in accordance with the second paragraph of this covenant with respect to such Asset Sale. For the avoidance of doubt, the Holder of any Retained Asset Sale Proceeds may apply any Retained Asset Sale Proceeds in any manner not prohibited by this Indenture and such Retained Asset Sale Proceeds shall in no event and under no circumstances constitute Excess Proceeds.
(g) For purposes of this Section 4.10, the following are deemed to be Cash Equivalents:
(1) any liabilities (as shown on the Company’s or such Restricted Subsidiary’s most recent balance sheet or in the notes thereto, or if incurred or accrued or increased 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 in the footnotes thereto if such incurrence or accrual had taken place on or prior to the date of such balance sheet, as determined in good faith by the Company) of the Company or any Restricted Subsidiary, other than liabilities that are by their terms subordinated to the Notes or Notes, that are owed to the Company or a Restricted Subsidiary that (x) are assumed by the transferee (or a third party on behalf of the transferee) of any such assets (or a third party in connection with such transfer) or (y) are otherwise extinguished, cancelled or terminated in connection with the transaction with transactions relating to such transferee (other than intercompany debt owed to the Company or its Restricted SubsidiariesAsset Sale) and, in each case, and for which the Company and all of its Restricted Subsidiaries have been validly released,released by all applicable creditors in writing;
(B2) any securities, notes or other obligations or assets received by the Company or such Restricted Subsidiary from such transferee that are converted by the Company or such Restricted Subsidiary into cash or Cash Equivalents (to the extent of the cash or Cash Equivalents received) within 180 days following the closing of such Asset Sale;; and
(C) Indebtedness of any Restricted Subsidiary that ceases to be a Restricted Subsidiary as a result of such Asset Sale (other than intercompany debt owed to the Company or any Restricted Subsidiary), to the extent that the Company and each other Restricted Subsidiary are released from any guarantee of payment of the principal amount of such Indebtedness in connection with such Asset Sale in accordance with the terms of this Indenture;
(D) consideration consisting of Indebtedness of the Issuers or a Guarantor (other than intercompany debt owed to the Company or any Restricted Subsidiary and other than Subordinated Indebtedness) received after the Issue Date from Persons who are not the Company, Holdings or any Restricted Subsidiary;
(E3) any Designated Non-cash Consideration received by the Company or such any Restricted Subsidiary in such Asset Sale having an aggregate fair market value, as determined by the Company, taken together with all other Designated Non-cash Consideration received pursuant to this clause (E3) that is at that time outstanding, not to exceed the greater of (x) $225.0 million 180,000,000 and 30.0% of LTM (y) 0.25 multiplied by Pro Forma Consolidated EBITDA for the most recently ended Test Applicable Measurement Period at the time of the receipt of |US-DOCS\143900591.2|| such Designated Non-cash Consideration (Consideration, with the fair market value of each such item of Designated Non-cash Consideration being measured pursuant to this clause (E) at the Company’s option, either at the time of contractually agreeing to such Asset Sale or at the time received and, in either case, and without giving effect to subsequent changes in value); and
(F) any Investment, Capital Stock, assets, property or capital or other expenditure of the kind referred to in clauses (2) or (3) of Section 4.10(b) hereof shall be deemed to be Cash Equivalents for purposes of this provision and for no other purpose.
(bh) Within 540 days after the receipt of any Net Proceeds of any Asset Sale (the “Proceeds Application Period”), the Company or such Restricted Subsidiary, at their option, may apply an amount equal to the Net Proceeds from such Asset Sale,
(1) to reduce, prepay, repay or purchase:
(A) to To the extent such Net that any portion of Applicable Proceeds are from an Asset Sale of Collateral, Obligations with Pari Passu Lien Priority (including the Senior Credit Facilities or any Refinancing Indebtedness in respect thereof but other than Indebtedness owed to the Company or any Restricted Subsidiary), and, in the case of revolving obligations, to correspondingly reduce commitments with respect thereto, provided that, to the extent either Issuer or any Restricted Subsidiary will so repay any such Indebtedness (other than the Notes), the Issuers shall reduce Obligations under the Notes on a pro rata basis by, at their option, (i) redeeming Notes as provided under Section 3.07 hereof (ii) purchasing Notes through open-market purchases or (iii) by making an offer (in accordance with the procedures set forth herein for an Asset Sale Offer) to all Holders to purchase their Notes at a purchase price equal to 100.0% of the principal amount thereof, plus the amount of accrued but unpaid interest, if any, on the principal amount of the Notes to be repurchased to the date of repurchase;
(B) to the extent such Net Proceeds resulted from an Asset Sale not consisting of Collateral, Obligations in respect of other Secured Indebtedness (which may include the Notes), and, in the case of revolving commitments, to correspondingly reduce commitments with respect thereto;
(C) Obligations payable in respect of the Notes or any is denominated in a currency other Indebtedness (other than Subordinated Indebtedness) that U.S. dollars, the amount thereof payable in respect of the Company or any Restricted Subsidiary, other than Indebtedness owed to Notes shall not exceed the net amount of funds in U.S. dollars that is actually received by the Company or any Restricted Subsidiary (and, in the case of revolving commitments, to correspondingly reduce commitments with respect thereto), provided that, to the extent either Issuer or any Restricted Subsidiary will so repay any upon converting such Indebtedness (other than the Notes), the Issuers will reduce Obligations under the Notes on a pro rata basis by, at their option, portion into U.S. dollars.
(i) redeeming Notes as provided under Section 3.07 hereof or (ii) by making an offer (in accordance with the procedures set forth herein for Any Notice of an Asset Sale Offer) to all Holders to purchase their Notes at a purchase price equal to 100.0% of the principal amount thereof, plus the amount of accrued but unpaid interest, if any, on the principal amount of the Notes to be repurchased to the date of repurchase; mailed or |US-DOCS\143900591.2||
(D) Obligations sent in respect of Indebtedness of a Non-Guarantor Subsidiary, other than Indebtedness owed to the Company or another Restricted Subsidiary; manner herein provided, in the case of clauses (A) or (C) above, (i) if an offer shall be conclusively presumed to purchase any Indebtedness of the Company or any Restricted Subsidiary is made, such amount will be deemed repaid to the extent of the amount of such offerhave been given, whether or not accepted by the holders Holder receives such notice. If (1) the Notice of an Asset Sale Offer is mailed or sent in a manner herein provided and (2) any Holder fails to receive such Indebtednessnotice or a Holder receives such notice but it is defective, such Holder’s failure to receive such notice or such defect shall not affect the validity of the proceedings for the purchase of the Notes as to all other Holders that properly received such notice without defect. The Company shall comply with the requirements of Rule 14e-1 under the Exchange Act and no Net Proceeds any other securities laws and regulations thereunder to the extent such laws and regulations are applicable in connection with each repurchase of Notes pursuant to an Asset Sale Offer. To the amount extent that the provisions of such offer will any securities laws or regulations conflict with the provisions of this Indenture, the Company shall comply with the applicable securities laws and regulations and shall not be deemed to exist following such offer, and (ii) if the holder of any Indebtedness of a Restricted Subsidiary of the Company declines the repayment have breached their obligations under this Section 4.10 by virtue of such Indebtedness owed to it from such Net Proceeds such amount will be deemed repaid to the extent of the declined Net Proceeds, or
(2) 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 that results in the Company or any Restricted Subsidiary, as the case may be, owning an amount of the Capital Stock of such business such that such business constitutes a Restricted Subsidiary or increases the Company’s direct or indirect percentage ownership of the Capital Stock of a Restricted Subsidiary;compliance.
Appears in 1 contract
Sources: Indenture (MultiPlan Corp)
Asset Sales. (a) From and after the Completion Date, the The Company shall not consummatewill not, and shall will not permit any of its Restricted Subsidiaries to consummateto, consummate an Asset Sale, Sale unless:
(1a) the Company (or such a Restricted Subsidiary, as the case may be, ) receives consideration (including by way of relief from, or by any Person assuming responsibility for, any liability, contingent or otherwise, in connection with such Asset Sale) at the time of such the Asset Sale at least equal to the fair market value Fair Market Value (measured as determined in good faith by of the Company at date of the time of contractually agreeing definitive agreement with respect to such Asset Sale) of the assets or Equity Interests issued or sold or otherwise disposed of; and
(2b) except in the case of a Permitted Asset Swap, if the property or assets sold or otherwise disposed of have a fair market value in excess of the greater of $375.0 million and 50.0% of LTM EBITDA for the most recently ended Test Period at the time of such disposition, at least 75.075% of the aggregate consideration therefor received in the Asset Sale by the Company or such a Restricted Subsidiary, as Subsidiary and all other Asset Sales consummated since the case may be, Issue Date (on a cumulative basis) is in the form of cash or Cash Equivalents; provided that Equivalents or any combination thereof. For purposes of this provision, each of the amount offollowing will be deemed to be cash:
(A1) any liabilitiesliabilities (as shown on the Company’s or any Restricted Subsidiary’s most recent balance sheet or in the notes thereto or, contingent if incurred or otherwiseaccrued subsequent to the date of such balance sheet, such liabilities that would have been reflected on the Company’s or a Restricted Subsidiary’s consolidated balance sheet or in the notes thereto if such incurrence or accrual had taken place on or prior to the date of such balance sheet, as determined in good faith by the Company) of the Company or such any Restricted Subsidiary, Subsidiary (other than contingent liabilities and liabilities that are by their terms subordinated to the Notes or any Note Guarantee) that are owed to the Company canceled, terminated or a Restricted Subsidiary that (x) are assumed by the transferee of any such assets (pursuant to a novation, indemnity or a third party in connection with such transfer) or (y) are otherwise cancelled or terminated in connection with the transaction with such transferee (other than intercompany debt owed to agreement that releases the Company or its such Restricted SubsidiariesSubsidiary from or indemnifies the Company or such Restricted Subsidiary against further liability;
(2) andwith respect to any Asset Sale of oil and natural gas properties by the Company or any Restricted Subsidiary where the Company or such Restricted Subsidiary retains an interest in such property, in each casethe costs and expenses of the Company or such Restricted Subsidiary related to the exploration, for development, completion or production of such properties and activities related thereto which the Company and all of its Restricted Subsidiaries have been validly released,transferee (or an Affiliate thereof) agrees to pay;
(B3) any securities, notes or other obligations or assets received by the Company or such any Restricted Subsidiary from such transferee that are are, within 180 days of the Asset Sale, converted by the Company or such Restricted Subsidiary into cash or Cash Equivalents (Equivalents, to the extent of the cash or Cash Equivalents received) within 180 days following the closing of such Asset Salereceived in that conversion;
(C4) Indebtedness of any Restricted Subsidiary that ceases to be a Restricted Subsidiary as a result of such Asset Sale (other than intercompany debt owed to the Company Capital Stock or any Restricted Subsidiary), to the extent that the Company and each other Restricted Subsidiary are released from any guarantee of payment assets of the principal amount kind referred to in clause (2) or (4) of such Indebtedness in connection with such Asset Sale in accordance with the terms of this Indenture;Section 4.10(c); and
(D) consideration consisting of Indebtedness of the Issuers or a Guarantor (other than intercompany debt owed to the Company or any Restricted Subsidiary and other than Subordinated Indebtedness) received after the Issue Date from Persons who are not the Company, Holdings or any Restricted Subsidiary;
(E5) any Designated Non-cash Consideration received by the Company or such Restricted Subsidiary in such Asset Sale having an aggregate fair market value, as determined by the CompanyFair Market Value, taken together with all other Designated Non-cash Consideration received pursuant to this clause (E) that is at that time outstanding5), not to exceed the greater of $225.0 million and 30.0an amount equal to 5.0% of LTM EBITDA for the most recently ended Test Period Company’s Adjusted Consolidated Net Tangible Assets (determined at the time of the receipt of |US-DOCS\143900591.2|| such Designated Non-cash Consideration (Consideration), with the fair market value Fair Market Value of each such item of Designated Non-cash Consideration being measured pursuant to this clause (E) at the Company’s option, either at the time of contractually agreeing to such Asset Sale or at the time received and, in either case, and without giving effect to subsequent changes in value); and
(F) any Investment, Capital Stock, assets, property or capital or other expenditure of the kind referred to in clauses (2) or (3) of Section 4.10(b) hereof shall be deemed to be Cash Equivalents for purposes of this provision and for no other purpose.
(bc) Within 540 365 days after the receipt of any Net Proceeds of any from an Asset Sale (as may be extended pursuant to the “Proceeds Application Period”immediately succeeding paragraph), the Company (or such any Restricted Subsidiary, at their option, ) may apply an amount equal to the such Net Proceeds from such Asset Sale,at its option to any combination of the following:
(1) to reducerepay, prepayrepurchase or redeem any Indebtedness of the Company or a Restricted Subsidiary of the Company, repay other than (i) Indebtedness of the Company or purchase:a Guarantor that is subordinated to the Notes or the Note Guarantees, or (ii) Indebtedness owed to an Affiliate of the Company;
(A2) to acquire all or substantially all of the extent assets, or any 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 Capital Stock, such Person becomes a Restricted Subsidiary of the Company;
(3) to make capital expenditures in respect of the Company’s or any Restricted Subsidiaries’ Oil and Gas Business; or
(4) to acquire other assets that are not classified as current assets under GAAP and that are used or useful in the Oil and Gas Business. The requirement of clause (2), (3) or (4) of this Section 4.10(c) shall be deemed to be satisfied if a bona fide binding contract committing to make the investment, acquisition or expenditure referred to therein is entered into by the Company or any of its Restricted Subsidiaries with a Person other than an Affiliate of the Company within the time period specified in the preceding paragraph and such Net Proceeds are from an Asset Sale subsequently applied in accordance with such contract within 180 days following the date such agreement is entered into. Pending the final application of Collateralany Net Proceeds, Obligations with Pari Passu Lien Priority (including the Senior Credit Facilities or any Refinancing Indebtedness in respect thereof but other than Indebtedness owed to the Company (or any Restricted Subsidiary)) may 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 Section 4.10(c) will constitute “Excess Proceeds.” When the aggregate amount of Excess Proceeds exceeds $50.0 million, andwithin five days thereof, the Company will make an offer (an “Asset Sale Offer”) to all Holders of the Notes and all holders of other Indebtedness that is pari passu with the Notes containing provisions similar to those set forth in this Section 4.10, including the Existing Notes, with respect to offers to purchase, prepay or redeem such Indebtedness with the proceeds of sales of assets to purchase, prepay or redeem, on a pro rata basis (based on the principal amount of Notes and pari passu Indebtedness or, in the case of revolving obligationspari passu Indebtedness issued with significant original issue discount, to correspondingly reduce commitments with respect thereto, provided that, to based on the extent either Issuer or any Restricted Subsidiary will so repay any such Indebtedness (other than the Notesaccreted value thereof tendered), the Issuers shall reduce Obligations under maximum principal amount of Notes and such other pari passu Indebtedness (plus all accrued interest on the Notes on a pro rata basis byIndebtedness and the amount of all fees and expenses, at their optionincluding premiums, (iincurred in connection therewith) redeeming Notes as provided under Section 3.07 hereof (ii) purchasing Notes through open-market purchases that may be purchased, prepaid or (iii) by making an redeemed out of the Excess Proceeds. The offer (price in accordance with the procedures set forth herein for an any Asset Sale Offer) to all Holders to purchase their Notes at a purchase price Offer will be equal to 100.0100% of the principal amount thereofof the Notes and other pari passu Indebtedness to be purchased (or the lesser amount required under the agreements governing such other pari passu Indebtedness), plus the amount of accrued but and unpaid interest, if any, on to, but excluding, the principal amount date of purchase, prepayment or redemption, subject to the rights of Holders of the Notes on the relevant record date to receive interest due on the relevant interest payment date, and will be repurchased to the date payable in cash. If any Excess Proceeds remain after consummation of repurchase;
(B) to the extent such Net Proceeds resulted from an Asset Sale not consisting of CollateralOffer, Obligations in respect of other Secured Indebtedness (which may include the Notes), and, in the case of revolving commitments, to correspondingly reduce commitments with respect thereto;
(C) Obligations in respect of the Notes or any other Indebtedness (other than Subordinated Indebtedness) of the Company or any Restricted Subsidiary, other than Indebtedness owed to the Company or any Restricted Subsidiary (and, may use those Excess Proceeds for any purpose not otherwise prohibited by this Indenture. If the aggregate principal amount of Notes tendered in such Asset Sale Offer exceeds the case amount of revolving commitments, to correspondingly reduce commitments with respect thereto), provided that, Excess Proceeds allocated to the extent either Issuer or any Restricted Subsidiary will so repay any such Indebtedness (other than the purchase of Notes), the Issuers Trustee will reduce Obligations under select the Notes to be purchased on a pro rata basis by(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 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 (with such adjustments as may be deemed appropriate by the Company so that only Notes in minimum 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 their option, (i) redeeming Notes as provided under Section 3.07 hereof or (ii) zero. The Company may satisfy the foregoing obligations with respect to Excess Proceeds by making an offer (Asset Sale Offer prior to the expiration of the application period referred to in accordance this Section 4.10(c) or with respect to Excess Proceeds of $50.0 million or less. The Company will comply with the procedures set forth herein for requirements of Rule 14e-1 under the Exchange Act and any other securities laws and regulations thereunder to the extent those laws and regulations are applicable in connection with each repurchase of Notes pursuant to an Asset Sale Offer) to all Holders to purchase their Notes at a purchase price equal to 100.0% . To the extent that the provisions of the principal amount thereofany securities laws or regulations conflict with Section 3.09 or this Section 4.10, plus the amount of accrued but unpaid interest, if any, on the principal amount of the Notes to be repurchased to the date of repurchase; or |US-DOCS\143900591.2||
(D) Obligations in respect of Indebtedness of a Non-Guarantor Subsidiary, other than Indebtedness owed to the Company or another Restricted Subsidiary; provided, in will comply with the case of clauses (A) or (C) above, (i) if an offer to purchase any Indebtedness of the Company or any Restricted Subsidiary is made, such amount applicable securities laws and regulations and will be deemed repaid to the extent of the amount of such offer, whether or not accepted by the holders of such Indebtedness, and no Net Proceeds in the amount of such offer will be deemed to exist following such offer, and (ii) if the holder of any Indebtedness of a Restricted Subsidiary of the Company declines the repayment have breached its obligations under Section 3.09 or this Section 4.10 by virtue of such Indebtedness owed to it from such Net Proceeds such amount will be deemed repaid to the extent of the declined Net Proceeds, or
(2) 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 that results in the Company or any Restricted Subsidiary, as the case may be, owning an amount of the Capital Stock of such business such that such business constitutes a Restricted Subsidiary or increases the Company’s direct or indirect percentage ownership of the Capital Stock of a Restricted Subsidiary;compliance.
Appears in 1 contract
Sources: Indenture (Civitas Resources, Inc.)
Asset Sales. (a) From and after the Completion Date, the The Company shall not consummatenot, and shall not permit any of its Restricted Subsidiaries to consummateto, consummate an Asset Sale, Sale unless:
(1) the Company (or such the Restricted Subsidiary, as the case may be, ) receives consideration at the time of such Asset Sale at least equal to the fair market value of the assets or Equity Interests issued or sold or otherwise disposed of (as such fair market value to be determined in good faith by on the Company at the time date of contractually agreeing to such Asset Sale);
(2) the fair market value is determined by the Company’s Board of Directors and evidenced by a resolution of the assets sold or otherwise disposed ofBoard of Directors of the Company set forth in an Officers’ Certificate delivered to the Trustee; and
(23) except in the case of a Permitted Asset Swap, if the property or assets sold or otherwise disposed of have a fair market value in excess of the greater of $375.0 million and 50.0% of LTM EBITDA for the most recently ended Test Period at the time of such disposition, at least 75.075% of the consideration therefor received in the Asset Sale by the Company or such Restricted Subsidiary, as the case may be, Subsidiary is in the form of cash or Cash Equivalents; provided that . For purposes of this provision, each of the amount offollowing shall be deemed to be cash:
(Aa) the amount of any liabilities, contingent as shown on the Company’s most recent consolidated balance sheet or otherwisein 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 Guarantee) that are owed to the Company or a Restricted Subsidiary that (x) are assumed by the transferee of any such assets (or a third party in connection with such transfer) or (y) are otherwise cancelled or terminated in connection with the transaction with such transferee (other than intercompany debt owed to assets; provided, that the Company or its such Restricted Subsidiaries) and, in each case, for which the Company and all of its Restricted Subsidiaries have been validly released,Subsidiary is contractually released from further liability with respect to such liabilities;
(Bb) any securities, notes or other obligations or assets received by the Company or any such Restricted Subsidiary from such transferee that are promptly, but in any event within 120 days after the date of the Asset Sale, converted by the Company or such Restricted Subsidiary into cash or Cash Equivalents (Equivalents, to the extent of the cash or Cash Equivalents received) within 180 days following the closing of such Asset Salereceived in that conversion;
(Cc) Indebtedness of any Restricted Subsidiary that ceases to be a Restricted Subsidiary property received as a result of consideration for such Asset Sale that would otherwise constitute a permitted application of Net Proceeds (or other than intercompany debt owed to the Company or any Restricted Subsidiarycash in such amount) under clauses (3), to (4) and (6) under the extent that the Company and each other Restricted Subsidiary are released from any guarantee of payment of the principal amount of such Indebtedness in connection with such Asset Sale in accordance with the terms of this Indenture;next succeeding paragraph below; and
(D) consideration consisting of Indebtedness of the Issuers or a Guarantor (other than intercompany debt owed to the Company or any Restricted Subsidiary and other than Subordinated Indebtedness) received after the Issue Date from Persons who are not the Company, Holdings or any Restricted Subsidiary;
(Ed) any Designated Non-cash Consideration received by the Company or such Restricted Subsidiary in such Asset Sale having an aggregate fair market value, value (as determined in good faith by the Company), taken together with all other Designated Non-cash Consideration received pursuant to this clause (E) that is at that time outstandingd), not to exceed exceeding the greater of $225.0 15.0 million and 30.02.0% of LTM EBITDA for the most recently ended Test Period Total Assets of the Company at the time of the receipt of |US-DOCS\143900591.2|| such Designated Non-cash Consideration (Consideration, with the fair market value of each such item of Designated Non-cash Consideration being measured pursuant to this clause (E) at the Company’s option, either at the time of contractually agreeing to such Asset Sale or at the time received and, in either case, and without giving effect to subsequent changes in value); and
(F) any Investment, Capital Stock, assets, property or capital or other expenditure of the kind referred to in clauses (2) or (3) of Section 4.10(b) hereof shall be deemed to be Cash Equivalents for purposes of this provision and for no other purpose.
(b) . Within 540 365 days after the receipt of any Net Proceeds of any from an Asset Sale (the “Proceeds Application Period”)Sale, the Company or such any of its Restricted Subsidiary, at their option, Subsidiaries may apply an amount equal to the those Net Proceeds from such Asset Sale,at the option of the Company to:
(1) to reduce, prepay, permanently repay or purchase:
(A) to the extent such Net Proceeds are from an Asset Sale of Collateral, Obligations with Pari Passu Lien Priority (including the Senior Credit Facilities or any Refinancing Indebtedness in respect thereof but and other than Indebtedness owed to the Company or any Restricted Subsidiary), and, in the case of revolving obligations, to correspondingly reduce commitments with respect thereto, provided that, to the extent either Issuer or any Restricted Subsidiary will so repay any such Indebtedness (other than the Notes), the Issuers shall reduce Obligations under the Notes on a pro rata basis by, at their option, (i) redeeming Notes as provided under Section 3.07 hereof (ii) purchasing Notes through open-market purchases or (iii) by making an offer (in accordance with the procedures set forth herein for an Asset Sale Offer) to all Holders to purchase their Notes at a purchase price equal to 100.0% revolving loan portion of the principal amount thereof, plus the amount of accrued but unpaid interest, if any, on the principal amount of the Notes to be repurchased to the date of repurchaseany Credit Facility;
(B2) repay (a) the term loan portion of any Credit Facility, (b) any Indebtedness secured by a Lien, (c) repay other Indebtedness ranking pari passu with the Notes that has a Stated Maturity prior to the extent such Net Proceeds resulted from an Asset Sale not consisting of Collateral, Obligations in respect of other Secured Indebtedness (which may include the Notes), and, in the case of revolving commitments, to correspondingly reduce commitments with respect thereto;
(C) Obligations in respect Stated Maturity of the Notes or any other Indebtedness (other than Subordinated Indebtednessd) of the Company or any Restricted Subsidiary, other than Indebtedness owed to the Company or any Restricted Subsidiary (and, in the case of revolving commitments, to correspondingly reduce commitments with respect thereto), provided that, to the extent either Issuer or any Restricted Subsidiary will so repay any such Indebtedness (other than the Notes), the Issuers will reduce Obligations under the Notes on a pro rata basis by, at their option, (i) redeeming Notes as provided under Section 3.07 hereof or (ii) by making an offer (in accordance with the procedures set forth herein for an Asset Sale Offer) to all Holders to purchase their Notes at a purchase price equal to 100.0% of the principal amount thereof, plus the amount of accrued but unpaid interest, if any, on the principal amount of the Notes to be repurchased to the date of repurchase; or |US-DOCS\143900591.2||
(D) Obligations in respect of Indebtedness of a Non-Guarantor Subsidiary, other than Indebtedness owed to the Company or another Restricted Subsidiary; provided, in the case of clauses (A) or (C) above, (i) if an offer to purchase any Indebtedness of the Company or any Restricted Subsidiary is made, such amount will be deemed repaid to the extent of the amount of such offer, whether or not accepted by the holders of such Indebtedness, and no Net Proceeds in the amount of such offer will be deemed to exist following such offer, and (ii) if the holder of any Indebtedness of a Restricted Subsidiary that is not a Guarantor;
(3) acquire all or substantially all of the Company declines the repayment of such Indebtedness owed to it from such Net Proceeds such amount will be deemed repaid to the extent assets of, or a majority of the declined Voting Stock of, another Permitted Business;
(4) acquire Capital Stock constituting a minority interest in any Person that at such time is a Restricted Subsidiary of the Company;
(5) make a capital expenditure relating to an asset used or useful in a Permitted Business; or
(6) acquire non-current assets (including lease fleet and transportation equipment) that are used or useful in a Permitted Business Pending the final application of any Net Proceeds, or
(2) 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 that results in the Company or any of its Restricted SubsidiarySubsidiaries may temporarily reduce other borrowings or otherwise invest the Net Proceeds in any manner that is not prohibited by this Indenture. Any Net Proceeds from an Asset Sale not applied in accordance with the preceding paragraph within 365 days from the date of the receipt of such Net Proceeds (or at the Issuers’ option, an earlier date) shall constitute “Excess Proceeds” unless binding contractual commitments to apply such Net Proceeds in accordance with the preceding paragraph have been entered into prior to the end of such 365-day period and shall not have been completed or abandoned; provided, however, that the amount of any Net Proceeds that is not actually reinvested within 545 days from the date of the receipt of such Net Proceeds shall also constitute “Excess Proceeds.” When the aggregate amount of Excess Proceeds exceeds $10.0 million, the Issuers shall 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 or redeem with the proceeds of sales of assets to purchase the maximum principal amount of Notes and such other pari passu Indebtedness that may be purchased out of the Excess Proceeds. The offer price in any Asset Sale Offer shall be equal to 100% of the principal amount (or accreted value, as applicable) of the Notes and such other pari passu Indebtedness in each case equal to $2,000 or an integral multiple of $1,000 in excess thereof, plus accrued and unpaid interest and Additional Interest, if any, to the date of purchase, and shall be payable in cash. If any Excess Proceeds remain after the consummation of an Asset Sale Offer, the Company or any of its Restricted Subsidiaries may be, owning an 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 in such Asset Sale Offer exceeds the Capital Stock amount of Excess Proceeds, the Excess Proceeds shall be allocated by the Issuers to the Notes and such other pari passu Indebtedness on a pro rata basis (based upon the respective principal amounts (or accreted value, if applicable) of the Notes and such other pari passu Indebtedness tendered into such Asset Sale Offer) and the portion of each Note to be purchased shall thereafter be determined by the Trustee on a pro rata basis among the Holders of such business Notes with appropriate adjustments such that the Notes may only be purchased in integral multiples of $1,000. Upon completion of each Asset Sale Offer, the amount of Excess Proceeds shall be reset at zero. If the Asset Sale purchase date is on or after an interest payment record date and on or before the related interest payment date, any accrued and unpaid interest and Additional Interest, if any, shall be paid to the Holder in whose name a Note is registered at the close of business on such business constitutes a Restricted Subsidiary record date, and no interest or increases Additional Interest, if any, shall be payable to Holders who tender Notes pursuant to the Company’s direct Asset Sale Offer. The Issuers shall comply with the requirements of Rule 14e-l under the Exchange Act and any other securities laws and regulations thereunder to the extent those laws and regulations are applicable in connection with each repurchase of Notes pursuant to an Asset Sale Offer. To the extent that the provisions of any securities laws or indirect percentage ownership regulations conflict with the Asset Sale provisions of this Indenture, the Capital Stock Issuers shall comply with the applicable securities laws and regulations and shall not be deemed to have breached their obligations under the Asset Sale provisions of a Restricted Subsidiary;this Indenture by virtue of such conflict.
Appears in 1 contract
Sources: Indenture (Mobile Storage Group Inc)
Asset Sales. (a) From and after the Completion Date, the The Company shall not consummatewill not, and shall will not permit any of its Restricted Subsidiaries to consummateto, consummate an Asset Sale, Sale unless:
(1i) the Company or such any of its Restricted Subsidiary, Subsidiaries (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 determined in good faith by of the Company at date of the time of contractually agreeing definitive agreement with respect to such Asset Sale) of the assets or Equity Interests issued or sold or otherwise disposed of; and
(2ii) except in the case of a Permitted Asset Swap, if the property or assets sold or otherwise disposed of have a fair market value in excess of the greater of $375.0 million and 50.0% of LTM EBITDA for the most recently ended Test Period at the time of such disposition, at least 75.085% of the consideration therefor received in the Asset Sale by the Company or such Restricted Subsidiary, Subsidiaries (measured as of the case may be, date of the definitive agreement with respect to such Asset Sale) and all other Asset Sales since the Issue Date is in the form of cash or Cash Equivalents; provided that . For purposes of this provision, each of the amount offollowing will be deemed to be cash:
(A) any liabilities, contingent or otherwiseas shown on the Company’s most recent consolidated balance sheet, of the Company or such any Restricted Subsidiary, Subsidiary (other than contingent liabilities and liabilities that are by their terms subordinated to the Notes or any Note Guarantee) that are owed to the Company forgiven or a Restricted Subsidiary that (x) are assumed by the transferee of any such assets (pursuant to a customary novation or a third party in connection with such transfer) or (y) are otherwise cancelled or terminated in connection with the transaction with such transferee (other than intercompany debt owed to indemnity agreement that releases the Company or its such Restricted Subsidiaries) and, in each case, for which the Company and all of its Restricted Subsidiaries have been validly released,Subsidiary or indemnifies against further liability;
(B) any securities, notes or other obligations or assets received by the Company or any such Restricted Subsidiary from such transferee that are are, within 90 days after the Asset Sale, converted by the Company or such Restricted Subsidiary into cash or Cash Equivalents (cash, to the extent of the cash or Cash Equivalents received) within 180 days following the closing of such Asset Salereceived in that conversion;
(C) any stock or assets of the kind referred to in Section 4.10(b)(ii) or (iv) hereof;
(D) accounts receivable of a business retained by the Company or any of its Restricted Subsidiaries, as the case may be, following the sale of such business, provided that such accounts receivable do not have a payment date greater than 90 days from the date of the invoices creating such accounts receivable and are not past due; and
(E) Indebtedness (other than contingent liabilities and liabilities that are by their terms subordinated to the Notes or a Note Guarantee) of any Restricted Subsidiary that ceases to be is no longer a Restricted Subsidiary as a result of such Asset Sale (other than intercompany debt owed to the Company or any Restricted Subsidiary), to the extent Sale; provided that the Company and each other Restricted Subsidiary are released from any guarantee of payment of the principal amount Guarantee of such Indebtedness in connection with such Asset Sale; provided that in the case of any Asset Sale pursuant to a condemnation, appropriation or similar taking, including by deed in lieu of condemnation, such Asset Sale shall not be required to satisfy the requirements of Sections 4.10(a)(i) and 4.10(a)(ii) above. Notwithstanding the preceding, the 85% limitation referred to above shall be deemed satisfied with respect to any Asset Sale in which the cash or Cash Equivalents portions of the consideration received therefrom, determined in accordance with the terms of this Indenture;
(D) consideration consisting of Indebtedness of preceding provision on an after-tax basis, is equal to or greater than what the Issuers or a Guarantor (other than intercompany debt owed to the Company or any Restricted Subsidiary and other than Subordinated Indebtedness) received after the Issue Date from Persons who are not the Company, Holdings or any Restricted Subsidiary;
(E) any Designated Nonafter-cash Consideration received by the Company or such Restricted Subsidiary in tax proceeds would have been had such Asset Sale having an aggregate fair market value, as determined by the Company, taken together with all other Designated Non-cash Consideration received pursuant to this clause (E) that is at that time outstanding, not to exceed the greater of $225.0 million and 30.0% of LTM EBITDA for the most recently ended Test Period at the time of the receipt of |US-DOCS\143900591.2|| such Designated Non-cash Consideration (complied with the fair market value of each such item of Designated Non-cash Consideration being measured pursuant to this clause (E) at the Company’s option, either at the time of contractually agreeing to such Asset Sale or at the time received and, in either case, without giving effect to subsequent changes in value); and
(F) any Investment, Capital Stock, assets, property or capital or other expenditure of the kind referred to in clauses (2) or (3) of Section 4.10(b) hereof shall be deemed to be Cash Equivalents for purposes of this provision and for no other purposeaforementioned 85% limitation.
(b) Within 540 180 days after the receipt of any Net Proceeds from an Asset Sale, other than a Sale of any Asset Sale (the “Proceeds Application Period”)Collateral, the Company or such one or more of its Restricted Subsidiary, Subsidiaries may at their option, may its option apply cash in an amount equal to the amount of such Net Proceeds to any combination of the following:
(i) to repay (or cash collateralize) (A) Priority Lien Obligations and, (B) to the extent required by the documents governing such Indebtedness, Indebtedness permitted to be incurred pursuant to Section 4.09(b)(iv) hereof, provided that such Indebtedness was incurred for the purpose of financing all or part of the purchase price or cost of the design, construction, installation or improvement of such assets;
(ii) 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 Company;
(iii) to make capital expenditures in the Permitted Business, including investments in multi- client data libraries; or
(iv) to acquire other assets that are not classified as current assets under GAAP and that are used or useful in a Permitted Business. The requirement of clause (ii) or (iv) of this Section 4.10(b) shall be deemed to be satisfied if a bona fide binding contract committing to make the investment referred to therein is entered into by the Company or any of its Restricted Subsidiaries with a Person other than an Affiliate of the Company within the time period specified in the preceding paragraph and such Net Proceeds are subsequently applied in accordance with such contract within 180 days following the date such agreement is entered into. Pending the final application of any Net Proceeds, the Company (or any Restricted Subsidiary) may invest the Net Proceeds in any manner that is not prohibited by this Indenture.
(c) Within 180 days after the receipt of any Net Proceeds from an Asset Sale that constitutes a Sale of Collateral, the Company (or the Restricted Subsidiary that owned those assets, as the case may be) may at its option apply cash in an amount equal to the amount of such Asset Sale,
Net Proceeds to any combination of the following: (1) to reducepurchase or invest in other long-term assets that would constitute Collateral; (2) to repay (or cash collateralize) Priority Lien Obligations or (3) to make capital expenditures in the Permitted Business, prepayincluding investments in multi-client data libraries in each case, repay comprising Collateral; provided, however, that the aggregate amount of Net Proceeds that may be applied or purchase:invested pursuant to clauses (1) through (3) above shall not exceed $25.0 million in the aggregate during any fiscal year.
(Ad) to All of the extent such Net Proceeds are from an Asset Sale that constitutes a Sale of CollateralCollateral shall be deposited directly into the Collateral Account; provided, Obligations with Pari Passu Lien Priority (including that the Senior Credit Facilities or Company and the Restricted Subsidiaries will not be required to cause any Refinancing Indebtedness Net Proceeds to be held in respect thereof but other than Indebtedness owed the Collateral Account except to the extent that the aggregate amount of Net Proceeds from all Asset Sales that constitute a Sale of Collateral which are not held in the Collateral Account exceeds $25.0 million in the aggregate during any fiscal year. 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 $1.0 million, the Company or any Restricted Subsidiarymay (and when the Excess Proceeds exceeds $10.0 million shall), and, in the case of revolving obligations, to correspondingly reduce commitments with respect thereto, provided thatwithin five days thereof, to the extent either Issuer permitted by the Intercreditor Agreement and the Credit Agreement, each as in effect as of the Issue Date, make an Asset Sale Offer to all Holders of Notes and all holders of Second Lien Debt containing provisions similar to those set forth in this Indenture with respect to offers to purchase, prepay or any Restricted Subsidiary will so repay any such Indebtedness (other than redeem with the Notes), the Issuers shall reduce Obligations under the Notes on a pro rata basis by, at their option, (i) redeeming Notes as provided under Section 3.07 hereof (ii) purchasing Notes through open-market purchases or (iii) by making an offer (proceeds of sales of assets in accordance with Section 3.09 hereof to purchase, prepay or redeem the procedures set forth herein for an maximum principal amount of Notes and such other Second Lien Debt (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) to all Holders to purchase their Notes at a purchase price Offer will be equal to 100.0100% of the principal amount thereofamount, plus the amount of accrued but and unpaid interest, if any, on the principal amount of the Notes to be repurchased to the date of repurchase;
(B) purchase, prepayment or redemption, subject to the extent such 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 resulted from remain after consummation of an Asset Sale not consisting of Collateral, Obligations in respect of other Secured Indebtedness Offer (which may include the Notes), and, in the case of revolving commitments, to correspondingly reduce commitments with respect thereto;
(C) Obligations in respect or expiration of the Notes or any other Indebtedness (other than Subordinated Indebtedness) of the Company or any Restricted Subsidiary, other than Indebtedness owed to the Company or any Restricted Subsidiary (and, in the case of revolving commitments, to correspondingly reduce commitments with respect thereto), provided that, to the extent either Issuer or any Restricted Subsidiary will so repay any such Indebtedness (other than the Notesoffer if no Holder accepts), the Issuers Company may use those Excess Proceeds for any purpose not otherwise prohibited by this Indenture. If the aggregate principal amount of Notes and other Second Lien Debt tendered in (or required to be prepaid or redeemed in connection with) such Asset Sale Offer exceeds the amount of Excess Proceeds, the Company will reduce Obligations under select the Notes and such other Second Lien Debt to be purchased on a pro rata basis by(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 a method that most nearly approximates pro rata selection 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 $1,000, or an integral multiple of $1,000 in excess thereof, will be purchased). Upon completion of each Asset Sale Offer (or expiration of the offer if no holder accepts), the amount of Excess Proceeds will be reset at their option, zero.
(ie) redeeming Notes as provided under Section 3.07 hereof or (ii) by making an offer (in accordance The Company will comply with the procedures set forth herein for requirements of Rule 14e-1 under the Exchange Act and any other securities laws and regulations thereunder to the extent those laws and regulations are applicable in connection with each repurchase of Notes pursuant to a Change of Control Offer or an Asset Sale Offer) to all Holders to purchase their Notes at a purchase price equal to 100.0% . To the extent that the provisions of any securities laws or regulations conflict with the principal amount thereofprovisions of Section 3.09 hereof or this Section 4.10, plus the amount of accrued but unpaid interest, if any, on the principal amount of the Notes to be repurchased to the date of repurchase; or |US-DOCS\143900591.2||
(D) Obligations in respect of Indebtedness of a Non-Guarantor Subsidiary, other than Indebtedness owed to the Company or another Restricted Subsidiary; provided, in will comply with the case of clauses (A) or (C) above, (i) if an offer to purchase any Indebtedness of the Company or any Restricted Subsidiary is made, such amount applicable securities laws and regulations and will be deemed repaid to the extent of the amount of such offer, whether or not accepted by the holders of such Indebtedness, and no Net Proceeds in the amount of such offer will be deemed to exist following such offer, and (ii) if the holder of any Indebtedness of a Restricted Subsidiary of the Company declines the repayment have breached its obligations under Section 3.09 hereof or this Section 4.10 by virtue of such Indebtedness owed to it from such Net Proceeds such amount will be deemed repaid to the extent of the declined Net Proceeds, or
(2) 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 that results in the Company or any Restricted Subsidiary, as the case may be, owning an amount of the Capital Stock of such business such that such business constitutes a Restricted Subsidiary or increases the Company’s direct or indirect percentage ownership of the Capital Stock of a Restricted Subsidiary;compliance.
Appears in 1 contract
Sources: Indenture (Ion Geophysical Corp)
Asset Sales. (a) From and after the Completion Date, the The Company shall not consummatewill not, and shall will not permit any of its Restricted Subsidiaries to consummateto, consummate an Asset Sale, Sale unless:
(1) the Company (or such 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 (as determined in good faith by the Company at the time of contractually agreeing to such Asset Sale) Fair Market Value of the assets or Equity Interests issued or sold or otherwise disposed of; and
(2) except in the case of a Permitted Asset Swap, if the property or assets sold or otherwise disposed of have a fair market value in excess of the greater of $375.0 million and 50.0% of LTM EBITDA for the most recently ended Test Period at the time of such disposition, at least 75.075% of the consideration therefor received in the Asset Sale by the Company or such Restricted Subsidiary, as the case may be, Subsidiary is in the form of cash or Cash Equivalents; provided that . For purposes of this provision, each of the amount offollowing shall be deemed to be cash:
(A) any liabilities, contingent as shown on the Company’s most recent consolidated balance sheet (or otherwiseas would be shown on the Company’s consolidated balance sheet as of the date of such Asset Sale), of the Company or such any Restricted Subsidiary, Subsidiary (other than contingent liabilities and liabilities that are by their terms subordinated to the Notes or any Note Guarantee) that are owed to the Company or a Restricted Subsidiary that (x) are assumed by the transferee of any such assets (or pursuant to a third party in connection with such transfer) or (y) are otherwise cancelled or terminated in connection with the transaction with such transferee (other than intercompany debt owed to customary novation agreement that releases the Company or its such Restricted Subsidiaries) and, in each case, for which the Company and all of its Restricted Subsidiaries have been validly released,Subsidiary from further liability;
(B) any securities, notes or other obligations or assets received by the Company or any such Restricted Subsidiary from such transferee that are converted by the Company or such Restricted Subsidiary into cash or Cash Equivalents (within 30 days after such Asset Sale, to the extent of the cash or Cash Equivalents received) within 180 days following the closing of such Asset Sale;received in that conversion; and
(C) Indebtedness of any Restricted Subsidiary that ceases to be a Restricted Subsidiary as a result of such Asset Sale (other than intercompany debt owed to the Company stock or any Restricted Subsidiary), to the extent that the Company and each other Restricted Subsidiary are released from any guarantee of payment of the principal amount of such Indebtedness in connection with such Asset Sale in accordance with the terms of this Indenture;
(D) consideration consisting of Indebtedness of the Issuers or a Guarantor (other than intercompany debt owed to the Company or any Restricted Subsidiary and other than Subordinated Indebtedness) received after the Issue Date from Persons who are not the Company, Holdings or any Restricted Subsidiary;
(E) any Designated Non-cash Consideration received by the Company or such Restricted Subsidiary in such Asset Sale having an aggregate fair market value, as determined by the Company, taken together with all other Designated Non-cash Consideration received pursuant to this clause (E) that is at that time outstanding, not to exceed the greater of $225.0 million and 30.0% of LTM EBITDA for the most recently ended Test Period at the time of the receipt of |US-DOCS\143900591.2|| such Designated Non-cash Consideration (with the fair market value of each such item of Designated Non-cash Consideration being measured pursuant to this clause (E) at the Company’s option, either at the time of contractually agreeing to such Asset Sale or at the time received and, in either case, without giving effect to subsequent changes in value); and
(F) any Investment, Capital Stock, assets, property or capital or other expenditure assets of the kind referred to in clauses (2) or (34) of the next paragraph of this Section 4.10(b) hereof 4.10. Notwithstanding the foregoing, the 75% limitation referred to above shall be deemed satisfied with respect to be any Asset Sale in which the cash or Cash Equivalents for purposes portion of this the consideration received therefrom, determined in accordance with the foregoing provision and for no other purpose.
(b) on an after-tax basis, is equal to or greater than what the after-tax proceeds would have been had such Asset Sale complied with the aforementioned 75% limitation Within 540 365 days after the receipt of any Net Proceeds of any from an Asset Sale (the “Proceeds Application Period”)Sale, the Company or such a Restricted Subsidiary, at their option, Subsidiary may apply an amount equal to the such Net Proceeds from such Asset Sale,Proceeds:
(1) to reduce, prepay, repay repay, defease, redeem, purchase or purchase:
(A) otherwise retire Indebtedness and other Obligations under a Credit Facility or Indebtedness secured by property that is subject to the extent such Net Proceeds are from an Asset Sale of Collateral, Obligations with Pari Passu Lien Priority (including the Senior Credit Facilities or any Refinancing Indebtedness in respect thereof but other than Indebtedness owed to the Company or any Restricted Subsidiary), and, in if the case of Indebtedness repaid is revolving obligations, to correspondingly reduce commitments with respect thereto, provided that, to the extent either Issuer or any Restricted Subsidiary will so repay any such Indebtedness (other than the Notes), the Issuers shall reduce Obligations under the Notes on a pro rata basis by, at their option, (i) redeeming Notes as provided under Section 3.07 hereof (ii) purchasing Notes through open-market purchases or (iii) by making an offer (in accordance with the procedures set forth herein for an Asset Sale Offer) to all Holders to purchase their Notes at a purchase price equal to 100.0% of the principal amount thereof, plus the amount of accrued but unpaid interest, if any, on the principal amount of the Notes to be repurchased to the date of repurchase;
(B) to the extent such Net Proceeds resulted from an Asset Sale not consisting of Collateral, Obligations in respect of other Secured Indebtedness (which may include the Notes), and, in the case of revolving commitmentscredit Indebtedness, to correspondingly reduce commitments with respect thereto;
(C2) Obligations in respect to acquire all or substantially all of the Notes 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 Company;
(3) to make a capital expenditure; or
(4) to acquire other Indebtedness (other than Subordinated Indebtedness) assets that are not classified as current assets under GAAP and that are used or useful in a Permitted Business. Notwithstanding the foregoing, if within 365 days after the receipt of any Net Proceeds from an Asset Sale, the Company or any a Restricted Subsidiary, other than Indebtedness owed to Subsidiary enters into a binding written agreement irrevocably committing the Company or any such Restricted Subsidiary to an application of funds of the kind described in clause (and2), (3) or (4) above, and as to which the only condition to closing not satisfied within 365 days of the receipt of such Net Proceeds is the receipt of required governmental approvals, the Company or such Restricted Subsidiary shall be deemed not to be in violation of the preceding paragraph so long as such application of funds is consummated within 545 days of the receipt of such Net Proceeds. Pending the final application of any Net Proceeds, the Company may temporarily reduce revolving credit borrowings or otherwise use the Net Proceeds in any manner that is not prohibited by this Indenture. An amount equal to any Net Proceeds from Asset Sales that are not applied or invested as provided in the case third paragraph of revolving commitmentsthis Section 4.10 will constitute “Excess Proceeds.” When the aggregate amount of Excess Proceeds exceeds $20.0 million, within ten (10) days thereof, the Company will make an Asset Sale Offer to correspondingly reduce commitments 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 thereto), provided that, to offers to purchase or redeem with the extent either Issuer or any Restricted Subsidiary will so repay any such Indebtedness (other than the Notes), the Issuers will reduce Obligations under the Notes on a pro rata basis by, at their option, (i) redeeming Notes as provided under Section 3.07 hereof or (ii) by making an offer (proceeds of sales of assets in accordance with Section 3.09 hereof to purchase the procedures set forth herein for an 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) to all Holders to purchase their Notes at a purchase price Offer will be equal to 100.0100% of the principal amount thereof, plus the amount of accrued but and unpaid interestinterest and Liquidated Damages, if any, on the principal amount of the Notes to be repurchased to the date of repurchase; or |US-DOCS\143900591.2||
(D) Obligations purchase, and will be payable in respect cash. If any Excess Proceeds remain after consummation of Indebtedness of a Non-Guarantor Subsidiaryan Asset Sale Offer, other than Indebtedness owed to the Company or another Restricted Subsidiary; provided, in the case of clauses (A) or (C) above, (i) if an offer to purchase any Indebtedness of the Company or any of its Restricted Subsidiary is madeSubsidiaries 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 &pro rota basis. Upon completion of each Asset Sale Offer, the amount of Excess Proceeds will be deemed repaid reset at zero. The Company will comply with the requirements of Rule 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 each repurchase of Notes pursuant to an Asset Sale Offer. To the amount extent that the provisions of any securities laws or regulations conflict with the provisions of Section 3.09 hereof or this Section 4.10 or compliance with Section 3.09 hereof or this Section 4.10 would constitute a violation of any such offerlaws or regulations, whether or the Company will comply with the applicable securities laws and regulations and will not accepted by the holders of such Indebtedness, and no Net Proceeds in the amount of such offer will be deemed to exist following such offer, and (ii) if the holder of any Indebtedness of a Restricted Subsidiary of the Company declines the repayment have breached its obligations under Section 3.09 hereof or this Section 4.10 by virtue of such Indebtedness owed to it from such Net Proceeds such amount will be deemed repaid to the extent of the declined Net Proceeds, or
(2) 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 that results in the Company or any Restricted Subsidiary, as the case may be, owning an amount of the Capital Stock of such business such that such business constitutes a Restricted Subsidiary or increases the Company’s direct or indirect percentage ownership of the Capital Stock of a Restricted Subsidiary;compliance.
Appears in 1 contract
Asset Sales. (a) From and after the Completion Date, the The Company shall not consummatewill not, and shall will not permit any of its Restricted Subsidiaries to consummateto, an consummate any Asset Sale, Disposition unless:
(1i) the Company or such Restricted Subsidiary, as the case may be, receives consideration at the time of such Asset Sale at least equal to the fair market value Fair Market Value (as such Fair Market Value to be determined in good faith by on the Company at the time date of contractually agreeing to such Asset SaleDisposition) of the shares and assets sold or otherwise disposed of; andsubject to such Asset Disposition;
(2ii) except in the case of a Permitted Asset Swap, if the property or assets sold or otherwise disposed of have a fair market value in excess of the greater of $375.0 million and 50.0% of LTM EBITDA for the most recently ended Test Period at the time of such disposition, at least 75.075% of the consideration therefor from such Asset Disposition received by the Company or such Restricted Subsidiary, as the case may be, is in the form of cash or Cash Equivalents; provided that the amount of:and
(Aiii) any liabilities, contingent an amount equal to 100% of the Net Available Cash from such Asset Disposition is applied or otherwise, of committed to be applied by the Company or such Restricted Subsidiary, as the case may be, within 365 days from the later of the date of such Asset Disposition or the receipt of such Net Available Cash, and, if committed to be applied, such Net Available Cash is thereafter applied within 180 days of the date which is 365 days from such Asset Disposition (such 365 plus 180-day period, the "Asset Sale Commitment Period") as follows:
(A) to repay and permanently reduce (and permanently reduce any commitments with respect thereto) Secured Indebtedness of the Company (other than any Disqualified Stock or Guarantor Subordinated Obligations) or Secured Indebtedness of a Restricted Subsidiary of the Company (other than any Disqualified Stock, Subordinated Obligations or Guarantor Subordinated Obligations), in each case other than Indebtedness owed to the Company or a Restricted Subsidiary of the Company;
(B) to repay and permanently reduce (and permanently reduce any commitments with respect thereto) obligations under other Indebtedness of the Company that ranks equally in right of payment with the Notes (other than any Disqualified Stock or Guarantor Subordinated Obligations) or Indebtedness of a Restricted Subsidiary (other than any Disqualified Stock, Subordinated Obligations or Guarantor Subordinated Obligations), in each case other than Indebtedness owed to the Company or a Restricted Subsidiary of the Company; provided that with respect to any reduction of Obligations that rank equally in right of payment with the Notes pursuant to this clause (B), the Company shall equally and ratably reduce obligations under the Notes either (i) as provided under Section 3.07, (ii) through open market purchases (to the extent such purchases are at or above 100% of the principal amount thereof) or (iii) by making an offer to all Holders to purchase their Notes at or above 100% of the principal amount thereof, plus, in each case, the amount of accrued but unpaid interest on the amount of Notes, in each case on a pro rata basis, the aggregate amount of which offer shall be equal to the aggregate amount that would reduce the Obligations under the Notes on an equal and ratable basis with such other Indebtedness that ranks equally in right of payment with the Notes based on the aggregate outstanding principal amount of the Notes and of such other Indebtedness;
(C) to invest in Additional Assets;
(D) to make capital expenditures in respect of the Company's or its Restricted Subsidiaries' Permitted Business;
(E) to purchase the Notes pursuant to an offer to all holders of Notes at a purchase price equal to 100% of the principal amount thereof, plus accrued and unpaid interest to the date of purchase (a "Notes Offer"); or
(F) a combination of repayments, reductions, purchases, investments and expenditures permitted by the foregoing clauses (A) through (E); provided that pending the final application of any such Net Available Cash in accordance with this paragraph, the Company and its Restricted Subsidiaries may temporarily reduce Indebtedness or otherwise invest such Net Available Cash in any manner not prohibited by this Indenture.
(b) For the purposes of clause (a)(ii) above and for no other purpose, the following will be deemed to be cash:
(i) any liabilities (as shown on the Company's or such Restricted Subsidiary's most recent balance sheet) of the Company or any of its Restricted Subsidiaries (other than contingent liabilities and liabilities that are by their terms subordinated to the Notes or the Note Guarantees) that are owed to the Company or a Restricted Subsidiary that (x) are assumed by the transferee of any such assets (or a third party in connection with such transfer) or (y) are otherwise cancelled or terminated in connection with the transaction with such transferee (other than intercompany debt owed to the Company or its Restricted Subsidiaries) and, in each case, for and from which the Company and all of its such Restricted Subsidiaries have been validly released,released from liability by all creditors in writing; 72
(B) any securities, notes or other obligations or assets received by the Company or such Restricted Subsidiary from such transferee that are converted by the Company or such Restricted Subsidiary into cash or Cash Equivalents (to the extent of the cash or Cash Equivalents received) within 180 days following the closing of such Asset Sale;
(C) Indebtedness of any Restricted Subsidiary that ceases to be a Restricted Subsidiary as a result of such Asset Sale (other than intercompany debt owed to the Company or any Restricted Subsidiary), to the extent that the Company and each other Restricted Subsidiary are released from any guarantee of payment of the principal amount of such Indebtedness in connection with such Asset Sale in accordance with the terms of this Indenture;
(D) consideration consisting of Indebtedness of the Issuers or a Guarantor (other than intercompany debt owed to the Company or any Restricted Subsidiary and other than Subordinated Indebtedness) received after the Issue Date from Persons who are not the Company, Holdings or any Restricted Subsidiary;
(Eii) any Designated Non-cash Cash Consideration received by the Company or such any of its Restricted Subsidiary Subsidiaries in such Asset Sale Disposition having an aggregate fair market value, as determined by the CompanyFair Market Value, taken together with all other Designated Non-cash Cash Consideration received pursuant to this clause (Eii) that is at that time outstanding, not to exceed the greater of (x) $225.0 250.0 million and 30.0(y) 2.25% of LTM EBITDA for the most recently ended Test Period Total Assets at the time of the receipt of |US-DOCS\143900591.2|| such Designated Non-cash Cash Consideration (with the fair market value Fair Market Value of each such item of Designated Non-cash Cash Consideration being measured pursuant to this clause (E) at the Company’s option, either at the time of contractually agreeing to such Asset Sale or at the time received and, in either case, and without giving effect to subsequent changes in value); and;
(Fiii) any Investmentsecurities, Capital Stock, assets, property or capital notes or other expenditure obligations received by the Company or any of its Restricted Subsidiaries from the kind referred to in clauses (2) or (3) of Section 4.10(b) hereof shall be deemed to be Cash Equivalents for purposes of this provision and for no other purpose.
(b) Within 540 days after the receipt of any Net Proceeds of any Asset Sale (the “Proceeds Application Period”), transferee that are converted by the Company or such Restricted SubsidiarySubsidiary into cash (to the extent of the cash received) within 180 days following the closing of such Asset Disposition; and
(iv) any Additional Assets.
(c) Any Net Available Cash from Asset Dispositions that is not applied or invested as provided in the preceding paragraph will be deemed to constitute "Excess Proceeds." On the business day following the final day of the Asset Sale Commitment Period, if the aggregate amount of Excess Proceeds exceeds $50.0 million, the Company or the Issuer will be required to make an offer ("Asset Disposition Offer") to all Holders and, to the extent required by the terms of outstanding Pari Passu Indebtedness, to all holders of such Pari Passu Indebtedness, to purchase the maximum aggregate principal amount of Notes and any such Pari Passu Indebtedness that may be purchased out of the Excess Proceeds, at their option, may apply an offer price in cash in an amount equal to the Net Proceeds from such Asset Sale,
(1) to reduce, prepay, repay or purchase:
(A) to the extent such Net Proceeds are from an Asset Sale of Collateral, Obligations with Pari Passu Lien Priority (including the Senior Credit Facilities or any Refinancing Indebtedness in respect thereof but other than Indebtedness owed to the Company or any Restricted Subsidiary), and, in the case of revolving obligations, to correspondingly reduce commitments with respect thereto, provided that, to the extent either Issuer or any Restricted Subsidiary will so repay any such Indebtedness (other than the Notes), the Issuers shall reduce Obligations under the Notes on a pro rata basis by, at their option, (i) redeeming Notes as provided under Section 3.07 hereof (ii) purchasing Notes through open-market purchases or (iii) by making an offer (in accordance with the procedures set forth herein for an Asset Sale Offer) to all Holders to purchase their Notes at a purchase price equal to 100.0100% of the principal amount thereof, plus the amount of accrued but and unpaid interest, if any, on the principal amount of the Notes to be repurchased to the date of repurchase;
purchase (B) subject to the extent such Net Proceeds resulted from an Asset Sale not consisting right of Collateral, Obligations in respect Holders of other Secured Indebtedness (which may include record on a record date to receive interest on the Notesrelevant interest payment date), and, in the case of revolving commitments, to correspondingly reduce commitments with respect thereto;
(C) Obligations in respect of the Notes or any other Indebtedness (other than Subordinated Indebtedness) of the Company or any Restricted Subsidiary, other than Indebtedness owed to the Company or any Restricted Subsidiary (and, in the case of revolving commitments, to correspondingly reduce commitments with respect thereto), provided that, to the extent either Issuer or any Restricted Subsidiary will so repay any such Indebtedness (other than the Notes), the Issuers will reduce Obligations under the Notes on a pro rata basis by, at their option, (i) redeeming Notes as provided under Section 3.07 hereof or (ii) by making an offer (in accordance with the procedures set forth herein for in this Indenture or the agreements governing the Pari Passu Indebtedness, as applicable, in each case in denominations of $200,000 and larger integral multiples of $1,000 in excess thereof. The Company or the Issuer shall commence an Asset Sale OfferDisposition Offer with respect to Excess Proceeds by mailing (or otherwise communicating in accordance with the procedures of DTC) the notice required pursuant to all Holders the terms of this Indenture, with a copy to purchase their the Trustee. To the extent that the aggregate amount of Notes at a purchase price equal and Pari Passu Indebtedness validly tendered and not validly withdrawn pursuant to 100.0% of an Asset Disposition Offer is less than the Excess Proceeds, the Company or 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 thereofof Notes tendered pursuant to an Asset Disposition Offer and other Pari Passu Indebtedness tendered by holders thereof or lenders thereunder, plus collectively, exceeds the amount of accrued but unpaid interestExcess Proceeds, if any, the Trustee shall select the Notes and Pari Passu Indebtedness to be purchased on a pro rata basis on the basis of the aggregate accreted value or principal amount of the tendered Notes to be repurchased to the date and Pari Passu Indebtedness. Upon completion of repurchase; or |US-DOCS\143900591.2||
(D) Obligations in respect of Indebtedness of a Non-Guarantor Subsidiarysuch Asset Disposition Offer, other than Indebtedness owed to the Company or another Restricted Subsidiary; provided, in the case of clauses (A) or (C) above, (i) if an offer to purchase any Indebtedness of the Company or any Restricted Subsidiary is made, such amount will be deemed repaid to the extent regardless of the amount of Excess Proceeds used to purchase Notes pursuant to such offerAsset Disposition Offer, whether or not accepted by the holders of such Indebtedness, and no Net Proceeds in the amount of such offer Excess Proceeds shall be reset at zero.
(d) The Company and the Issuer will comply with all applicable securities laws and regulations and the requirements of Rule 14e-1 under the Exchange Act and any other securities laws or regulations thereunder to the extent those laws and regulations are applicable in connection with each repurchase of Notes pursuant to an Asset Disposition Offer or a Notes Offer. To the extent that the provisions of any applicable securities laws or regulations conflict with the Asset Disposition or Notes Offer provisions of this Indenture, the Company and the Issuer will comply with the applicable securities laws and regulations and will not be deemed to exist following such offer, and (ii) if have breached their respective obligations under the holder Asset Sales provisions of any Indebtedness of a Restricted Subsidiary of the Company declines the repayment this Indenture by virtue of such Indebtedness owed to it from such Net Proceeds such amount will be deemed repaid to the extent of the declined Net Proceeds, or
(2) 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 that results in the Company or any Restricted Subsidiary, as the case may be, owning an amount of the Capital Stock of such business such that such business constitutes a Restricted Subsidiary or increases the Company’s direct or indirect percentage ownership of the Capital Stock of a Restricted Subsidiary;compliance.
Appears in 1 contract
Sources: Indenture (Sibanye Stillwater LTD)
Asset Sales. (a) From and after the Completion Date, the Company shall not consummateSuburban Propane will not, and shall will not permit any of its Restricted Subsidiaries to consummateto, consummate an Asset Sale, Sale unless:
(1) Suburban Propane (or the Company or 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 (as determined in good faith by the Company at the time of contractually agreeing to such Asset Sale) Fair Market Value of the assets or Equity Interests issued or sold or otherwise disposed of; and
(2) except in the case of a Permitted Asset Swap, if the property or assets sold or otherwise disposed of have a fair market value in excess of the greater of $375.0 million and 50.0% of LTM EBITDA for the most recently ended Test Period at the time of such disposition, at least 75.075% of the consideration therefor received in the Asset Sale by the Company Suburban Propane or such Restricted Subsidiary, as the case may be, Subsidiary is in the form of cash or Cash Equivalents; provided that cash. For purposes of this provision, each of the amount offollowing will be deemed to be cash:
(Aa) any liabilities, contingent or otherwiseas shown on Suburban Propane's most recent consolidated balance sheet, of the Company Suburban Propane or such any Restricted Subsidiary, Subsidiary (other than contingent liabilities and liabilities that are by their terms subordinated to the Notes or Notes) that are owed to the Company or a Restricted Subsidiary that (x) are assumed by the transferee of any such assets (pursuant to a customary novation agreement that releases Suburban Propane or a third party in connection with such transfer) or (y) are otherwise cancelled or terminated in connection with the transaction with such transferee (other than intercompany debt owed to the Company or its Restricted Subsidiaries) and, in each case, for which the Company and all of its Restricted Subsidiaries have been validly released,Subsidiary from further liability;
(Bb) any securities, notes or other obligations or assets received by the Company Suburban Propane or any such Restricted Subsidiary from such transferee that are converted within 180 days after the date of consummation of such Asset Sale by the Company Suburban Propane or such Restricted Subsidiary into cash or Cash Equivalents (cash, to the extent of the cash or Cash Equivalents received) within 180 days following the closing of such Asset Sale;
(C) Indebtedness of any Restricted Subsidiary received in that ceases to be a Restricted Subsidiary as a result of such Asset Sale (other than intercompany debt owed to the Company or any Restricted Subsidiary), to the extent that the Company and each other Restricted Subsidiary are released from any guarantee of payment of the principal amount of such Indebtedness in connection with such Asset Sale in accordance with the terms of this Indenture;
(D) consideration consisting of Indebtedness of the Issuers or a Guarantor (other than intercompany debt owed to the Company or any Restricted Subsidiary and other than Subordinated Indebtedness) received after the Issue Date from Persons who are not the Company, Holdings or any Restricted Subsidiary;
(E) any Designated Non-cash Consideration received by the Company or such Restricted Subsidiary in such Asset Sale having an aggregate fair market value, as determined by the Company, taken together with all other Designated Non-cash Consideration received pursuant to this clause (E) that is at that time outstanding, not to exceed the greater of $225.0 million and 30.0% of LTM EBITDA for the most recently ended Test Period at the time of the receipt of |US-DOCS\143900591.2|| such Designated Non-cash Consideration (with the fair market value of each such item of Designated Non-cash Consideration being measured pursuant to this clause (E) at the Company’s option, either at the time of contractually agreeing to such Asset Sale or at the time received and, in either case, without giving effect to subsequent changes in value)conversion; and
(Fc) any Investment, Capital Stock, assets, property stock or capital or other expenditure assets of the kind referred to in clauses (2) or (34) of Section 4.10(b) hereof shall be deemed to be Cash Equivalents for purposes the next paragraph of this provision and for no other purpose.
Section 4.10. The 75% limitation in clause (b2) 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. Within 540 360 days after the receipt of any Net Proceeds of any from an Asset Sale Sale, Suburban Propane (or the “Proceeds Application Period”), the Company or such applicable Restricted Subsidiary, at their option, as the case may be) may apply an amount equal to the those Net Proceeds from such Asset Sale,Proceeds:
(1) to reduce, prepay, repay Indebtedness of Suburban Propane under a Credit Facility or purchase:
(A) to the extent such Net Proceeds are from an Asset Sale repay any Indebtedness of Collateral, Obligations with Pari Passu Lien Priority (including the Senior Credit Facilities or any Refinancing Indebtedness in respect thereof but other than Indebtedness owed to the Company or any Restricted Subsidiary), and, in the case of revolving obligations, to correspondingly reduce commitments with respect thereto, provided that, to the extent either Issuer or any Restricted Subsidiary will so repay any such Indebtedness (other than the Notes), the Issuers shall reduce Obligations under the Notes on a pro rata basis by, at their option, (i) redeeming Notes as provided under Section 3.07 hereof (ii) purchasing Notes through open-market purchases or (iii) by making an offer (in accordance with the procedures set forth herein for an Asset Sale Offer) to all Holders to purchase their Notes at a purchase price equal to 100.0% of the principal amount thereof, plus the amount of accrued but unpaid interestSuburban Propane and, if any, on the principal amount of the Notes to be repurchased to the date of repurchase;
(B) to the extent such Net Proceeds resulted from an Asset Sale not consisting of Collateral, Obligations in respect of other Secured Indebtedness (which may include the Notes), and, in the case of repaid is revolving commitmentscredit Indebtedness, to correspondingly reduce commitments with respect thereto;
(C2) Obligations in respect to acquire, or commit to acquire within 90 days thereof, all or substantially all of the Notes assets of, or any other Indebtedness 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 Suburban Propane;
(other than Subordinated Indebtedness3) of the Company to make a capital expenditure; and/or
(4) to acquire, or any Restricted Subsidiarycommit to acquire within 90 days thereof, other than Indebtedness owed to assets that are not classified as current assets under GAAP and that are used or useful in a Permitted Business. Pending the Company final application of any Net Proceeds, Suburban Propane or any Restricted Subsidiary (and, 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 case preceding paragraph will constitute "Excess Proceeds." When the aggregate amount of revolving commitments, to correspondingly reduce commitments with respect thereto), provided that, to the extent either Issuer or any Restricted Subsidiary will so repay any such Indebtedness (other than the Notes)Excess Proceeds exceeds $15.0 million, the Issuers will reduce Obligations under the Notes on a pro rata basis by, at their option, (i) redeeming Notes as provided under Section 3.07 hereof or (ii) by making an offer (in accordance with the procedures set forth herein for make an Asset Sale Offer) 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 their or redeem with the proceeds of sales of assets to purchase the maximum principal amount of Notes at a purchase 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 100.0100% of the principal amount thereof, plus the amount of accrued but and unpaid interestinterest and Liquidated Damages, if any, on the principal amount of the Notes to be repurchased to the date of repurchase; or |US-DOCS\143900591.2||
(D) Obligations in respect of Indebtedness of a Non-Guarantor Subsidiarypurchase, other than Indebtedness owed to the Company or another Restricted Subsidiary; provided, in the case of clauses (A) or (C) above, (i) if an offer to purchase any Indebtedness of the Company or any Restricted Subsidiary is made, such amount and will be deemed repaid payable in cash. If any Excess Proceeds remain after consummation of an Asset Sale Offer, the Issuers 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 will select the Notes and such other pari passu Indebtedness to be purchased on a pro rata basis. Upon completion of each Asset Sale Offer, the amount of Excess Proceeds will be reset at zero. The 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 those laws and regulations are applicable in connection with each repurchase of Notes pursuant to an Asset Sale Offer. To the amount extent that the provisions of such offerany securities laws or regulations conflict with Sections 3.10 or 4.10 of this Indenture, whether or the Issuers will comply with the applicable securities laws and regulations and will not accepted by the holders of such Indebtedness, and no Net Proceeds in the amount of such offer will be deemed to exist following such offer, and (ii) if the holder have breached their obligations Section 3.10 or 4.10 of any Indebtedness of a Restricted Subsidiary of the Company declines the repayment this Indenture by virtue of such Indebtedness owed to it from such Net Proceeds such amount will be deemed repaid to the extent of the declined Net Proceeds, or
(2) 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 that results in the Company or any Restricted Subsidiary, as the case may be, owning an amount of the Capital Stock of such business such that such business constitutes a Restricted Subsidiary or increases the Company’s direct or indirect percentage ownership of the Capital Stock of a Restricted Subsidiary;conflict.
Appears in 1 contract
Asset Sales. (a) From and after the Completion Date, the The Company shall not consummatewill not, and shall will not permit any of its Restricted Subsidiaries to consummateto, consummate an Asset Sale, Sale unless:
(1) the Company (or such the Restricted Subsidiary, as the case may be, ) receives consideration at the time of such Asset Sale at least equal to the fair market value (as determined in good faith by the Company at the time of contractually agreeing to such Asset Sale) Fair Market Value of the assets or Equity Interests issued or sold or otherwise disposed of; and
(2) except in the case of a Permitted Asset Swap, if the property or assets sold or otherwise disposed of have a fair market value in excess of the greater of $375.0 million and 50.0% of LTM EBITDA for the most recently ended Test Period at the time of such disposition, at least 75.075% of the aggregate consideration therefor received in respect of such Asset Sale by the Company or such Restricted SubsidiarySubsidiary (considered together on a cumulative basis, as with all consideration received by the case may beCompany or any of its Restricted Subsidiaries in respect of other Asset Sales consummated since the Prior Issue Date), is in the form of cash or Cash Equivalents; provided that . For purposes of this provision, each of the amount offollowing will be deemed to be cash:
(A) any liabilities, contingent or otherwiseas shown on the Company’s most recent consolidated balance sheet, of the Company or such any Restricted Subsidiary, Subsidiary (other than liabilities contingent liabilities, Subordinated Debt and any obligations in respect of preferred stock) that are by their terms subordinated to the Notes assumed or that are owed to the Company or a Restricted Subsidiary that (x) are assumed forgiven by the transferee of any such assets or Equity Interests pursuant to a novation agreement (or a third party in connection with such transfer) or (y) are otherwise cancelled or terminated in connection other legal documentation with the transaction with such transferee (other than intercompany debt owed to same effect) that includes a full release of the Company or its such Restricted Subsidiaries) and, in each case, for which the Company Subsidiary from any and all of its Restricted Subsidiaries have been validly released,liability therefor;
(B) any securities, notes or other obligations or assets received by the Company or any such Restricted Subsidiary from such transferee that are converted by the Company or such Restricted Subsidiary into cash or Cash Equivalents (within 90 days after the date of the Asset Sale, to the extent of the cash or Cash Equivalents received) within 180 days following the closing of such Asset Salereceived in that conversion;
(C) Indebtedness of any Restricted Subsidiary that ceases to be a Restricted Subsidiary as a result of such Asset Sale (other than intercompany debt owed to the Company Capital Stock or any Restricted Subsidiary), to the extent that the Company and each other Restricted Subsidiary are released from any guarantee of payment assets of the principal amount kind referred to in clause (2) of such Indebtedness in connection with such Asset Sale in accordance with the terms of this Indenture;Section 4.10(c) below; and
(D) consideration consisting of Indebtedness of the Issuers or a Guarantor (other than intercompany debt owed to the Company or any Restricted Subsidiary and other than Subordinated Indebtedness) received after the Issue Date from Persons who are not the Company, Holdings or any Restricted Subsidiary;
(E) any Designated Non-cash Consideration received by the Company or such any Restricted Subsidiary in such Asset Sale having an aggregate fair market value, as determined by the CompanyFair Market Value, taken together with all other Designated Non-cash Consideration received pursuant to this clause (E) that is at that time outstandingD), not to exceed the greater of $225.0 million and 30.0an amount equal to 5.0% of LTM EBITDA for Adjusted Consolidated Net Tangible Assets of the most recently ended Test Period Company (determined at the time of the receipt of |US-DOCS\143900591.2|| such Designated Non-cash Consideration (Consideration), with the fair market value Fair Market Value of each such item of Designated Non-cash Consideration being measured pursuant to this clause (E) at the Company’s option, either at the time of contractually agreeing to such Asset Sale or at the time received and, in either case, and without giving effect to subsequent changes in value); and.
(Fb) Notwithstanding the foregoing, the 75% limitation referred to above in Section 4.10(a) shall be deemed satisfied with respect to any Investment, Capital Stock, assets, property Asset Sale in which the cash or capital or other expenditure Cash Equivalents portion of the kind referred consideration received therefrom, determined in accordance with Section 4.10(a) on an after-tax basis, is equal to or greater than what the after-tax proceeds would have been had such Asset Sale complied with the aforementioned 75% limitation.
(c) 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 clauses (2) or (3) below, within the later of Section 4.10(b(x) hereof shall be deemed to be Cash Equivalents for purposes of this provision and for no other purpose.
(b) Within 540 365 days after the receipt of any Net Proceeds of any Asset Sale (the “Proceeds Application Period”), the Company or such Restricted Subsidiary, at their option, may apply an amount equal to the Net Proceeds from such Asset Sale,
(1) to reduce, prepay, repay or purchase:
(A) to the extent such Net Proceeds are from an Asset Sale or (y) 120 days after the entering into of Collateralsuch commitment or commitments, Obligations with Pari Passu Lien Priority (including the Senior Credit Facilities or any Refinancing Indebtedness in respect thereof but other than Indebtedness owed to the Company (or any Restricted Subsidiary), and, in the case of revolving obligations, to correspondingly reduce commitments with respect thereto, provided that, to the extent either Issuer or any Restricted Subsidiary will so repay any such Indebtedness (other than the Notes), the Issuers shall reduce Obligations under the Notes on a pro rata basis by, at their option, (i) redeeming Notes as provided under Section 3.07 hereof (ii) purchasing Notes through open-market purchases or (iii) by making an offer (in accordance with the procedures set forth herein for an Asset Sale Offer) to all Holders to purchase their Notes at a purchase price equal to 100.0% of the principal amount thereof, plus the amount of accrued but unpaid interest, if any, on the principal amount of the Notes to be repurchased to the date of repurchase;
(B) to the extent such Net Proceeds resulted from an Asset Sale not consisting of Collateral, Obligations in respect of other Secured Indebtedness (which may include the Notes), and, in the case of revolving commitments, to correspondingly reduce commitments with respect thereto;
(C) Obligations in respect of the Notes or any other Indebtedness (other than Subordinated Indebtedness) of the Company or any Restricted Subsidiary, other than Indebtedness owed to the Company or any Restricted Subsidiary (and, in the case of revolving commitments, to correspondingly reduce commitments with respect thereto), provided that, to the extent either Issuer or any Restricted Subsidiary will so repay any such Indebtedness (other than the Notes), the Issuers will reduce Obligations under the Notes on a pro rata basis by, at their option, (i) redeeming Notes as provided under Section 3.07 hereof or (ii) by making an offer (in accordance with the procedures set forth herein for an Asset Sale Offer) to all Holders to purchase their Notes at a purchase price equal to 100.0% of the principal amount thereof, plus the amount of accrued but unpaid interest, if any, on the principal amount of the Notes to be repurchased to the date of repurchase; or |US-DOCS\143900591.2||
(D) Obligations in respect of Indebtedness of a Non-Guarantor Subsidiary, other than Indebtedness owed to the Company or another Restricted Subsidiary; provided, in the case of clauses (A) or (C) above, (i) if an offer to purchase any Indebtedness of the Company or any Restricted Subsidiary is made, such amount will be deemed repaid to the extent of the amount of such offer, whether or not accepted by the holders of such Indebtedness, and no Net Proceeds in the amount of such offer will be deemed to exist following such offer, and (ii) if the holder of any Indebtedness of a Restricted Subsidiary of the Company declines the repayment of such Indebtedness owed to it from such Net Proceeds such amount will be deemed repaid to the extent of the declined Net Proceeds, or
(2) 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 that results in the Company or any applicable Restricted Subsidiary, as the case may be) may apply such Net Proceeds:
(1) to permanently repay Senior Debt;
(2) to invest in Additional Assets; or
(3) to make capital expenditures in respect of a Related Business of the Company or any of its Restricted Subsidiaries. However, owning pending application or investment of such Net Proceeds as provided in clauses (1) through (3) above, such Net Proceeds may be applied to temporarily reduce revolving credit Indebtedness or in any other manner not prohibited by this Indenture. An amount equal to any Net Proceeds from Asset Sales that are not applied or invested as provided in clauses (1) through (3) above will constitute “Excess Proceeds.”
(d) Within ten Business Days after the aggregate amount of Excess Proceeds exceeds $50.0 million, the Company 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 or redeem with the proceeds of sales of assets, to purchase the maximum principal amount of Notes and such other pari passu Indebtedness that may be purchased out of the Excess Proceeds. The offer price in any Asset Sale Offer 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 or any Restricted Subsidiary 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 Company will use the Excess Proceeds to purchase the Notes and such other pari passu Indebtedness on a pro rata basis. Upon completion of each Asset Sale Offer, the amount of Excess Proceeds will be reset at zero.
(e) Notwithstanding the foregoing, 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 Sections 5.01 and/or 4.15 of this Indenture, as applicable, and not by this Section 4.10.
(f) 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 those laws and regulations are applicable in connection with each repurchase of Notes pursuant to an Asset Sale Offer. To the extent that the provisions of any securities laws or regulations conflict with the Asset Sales provisions of this Indenture, or compliance with the Asset Sales provisions of this Indenture would constitute a violation of any such laws or regulations, the Company will comply with the applicable securities laws and regulations and will not be deemed to have breached its obligations under the Asset Sales provisions of this Indenture by virtue of such compliance.
(g) In the event that, pursuant to this Section 4.10, the Company is required to commence an Asset Sale Offer, it 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 the 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 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, by first class mail, 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 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;
(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 and integral multiples of $1,000 in excess of $2,000 only;
(F) that Holders electing to have Notes purchased pursuant to any Asset Sale Offer will be required to surrender the Notes, 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 prior to the close of business on the third Business Day preceding 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 telegram, telex, facsimile transmission or letter setting forth the name of the Holder, the principal amount of the Capital Stock of such business such Note the Holder delivered for purchase and a statement that such business constitutes ▇▇▇▇▇▇ 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 Restricted Subsidiary 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, or increases an integral multiple 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), which unpurchased portion must be equal to $2,000 in principal amount or an integral multiple of $1,000 in excess of $2,000.
(4) On or before the Purchase Date, the Company 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 Company will promptly issue a new Note, and the Trustee, upon written request from the Company’s direct , will authenticate and mail or indirect percentage ownership 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 Capital Stock 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 a Restricted Subsidiary;the Asset Sale Offer on the Purchase Date.
Appears in 1 contract
Sources: Indenture (Oasis Petroleum Inc.)
Asset Sales. (a) From and after the Completion Date, the The Company shall not consummatewill not, and shall will not permit any of its Restricted Subsidiaries to consummateto, consummate an Asset Sale, Sale unless:
(1) the Company or such 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 (as determined in good faith by the Company at the time of contractually agreeing to such Asset Sale) Fair Market Value of the assets or Equity Interests issued or sold or otherwise disposed of; and
(2) except in the case of a Permitted Asset Swap, if the property or assets sold or otherwise disposed of have a fair market value in excess of the greater of $375.0 million and 50.0% of LTM EBITDA for the most recently ended Test Period at the time of such disposition, at least 75.075% of the consideration therefor received in the Asset Sale by the Company or such Restricted Subsidiary, as the case may be, Subsidiary is in the form of cash or Cash Equivalents; provided that . For purposes of this provision, each of the amount offollowing shall be deemed to be cash:
(A) any liabilities, contingent as shown on the Company’s most recent consolidated balance sheet (or otherwiseas would be shown on the Company’s consolidated balance sheet as of the date of such Asset Sale), of the Company or such any Restricted Subsidiary, Subsidiary (other than contingent liabilities and liabilities that are by their terms subordinated to the Notes or any Subsidiary Guarantee) that are owed to the Company or a Restricted Subsidiary that (x) are assumed by the transferee of any such assets pursuant to (or 1) a third party in connection with such transfer) or (y) are otherwise cancelled or terminated in connection with the transaction with such transferee (other than intercompany debt owed to customary novation agreement that releases the Company or its such Restricted SubsidiariesSubsidiary from further liability or (2) andan assignment agreement that includes, in each caselieu of such a release, for which the agreement of the transferee or its parent company to indemnify and hold harmless the Company or such Restricted Subsidiary from and all against any loss, liability or cost in respect of its Restricted Subsidiaries have been validly released,such assumed liability;
(B) any securities, notes or other obligations or assets received by the Company or any such Restricted Subsidiary from such transferee that are converted by the Company or such Restricted Subsidiary into cash or Cash Equivalents (within 30 days after such Asset Sale, to the extent of the cash or Cash Equivalents received) within 180 days following the closing of such Asset Sale;received in that conversion; and
(C) Indebtedness of any Restricted Subsidiary that ceases to be a Restricted Subsidiary as a result of such Asset Sale (other than intercompany debt owed to the Company stock or any Restricted Subsidiary), to the extent that the Company and each other Restricted Subsidiary are released from any guarantee of payment of the principal amount of such Indebtedness in connection with such Asset Sale in accordance with the terms of this Indenture;
(D) consideration consisting of Indebtedness of the Issuers or a Guarantor (other than intercompany debt owed to the Company or any Restricted Subsidiary and other than Subordinated Indebtedness) received after the Issue Date from Persons who are not the Company, Holdings or any Restricted Subsidiary;
(E) any Designated Non-cash Consideration received by the Company or such Restricted Subsidiary in such Asset Sale having an aggregate fair market value, as determined by the Company, taken together with all other Designated Non-cash Consideration received pursuant to this clause (E) that is at that time outstanding, not to exceed the greater of $225.0 million and 30.0% of LTM EBITDA for the most recently ended Test Period at the time of the receipt of |US-DOCS\143900591.2|| such Designated Non-cash Consideration (with the fair market value of each such item of Designated Non-cash Consideration being measured pursuant to this clause (E) at the Company’s option, either at the time of contractually agreeing to such Asset Sale or at the time received and, in either case, without giving effect to subsequent changes in value); and
(F) any Investment, Capital Stock, assets, property or capital or other expenditure assets of the kind referred to in clauses (2) or (34) of the next paragraph of this Section 4.10(b) hereof 4.10. Notwithstanding the foregoing, the 75% limitation referred to above shall be deemed satisfied with respect to be any Asset Sale in which the cash or Cash Equivalents for purposes portion of this the consideration received therefrom, determined in accordance with the foregoing provision and for no other purpose.
(b) on an after-tax basis, is equal to or greater than what the after-tax proceeds would have been had such Asset Sale complied with the aforementioned 75% limitation. Within 540 360 days after the receipt of any Net Proceeds of any from an Asset Sale (the “Proceeds Application Period”)Sale, the Company (or such the applicable Restricted Subsidiary, at their option, as the case may be) may apply an amount equal to the such Net Proceeds from such Asset Sale,at its option:
(1) to reduce, prepay, repay repay, defease, redeem, purchase or purchase:
(A) to the extent such Net Proceeds are from an Asset Sale otherwise retire Secured Indebtedness of Collateral, Obligations with Pari Passu Lien Priority (including the Senior Credit Facilities or any Refinancing Indebtedness in respect thereof but other than Indebtedness owed to the Company or any Restricted Subsidiary), Guarantor and, in the case of revolving obligations, to correspondingly reduce commitments with respect thereto, provided that, to the extent either Issuer or any Restricted Subsidiary will so repay any if such Indebtedness (other than the Notes), the Issuers shall reduce Obligations under the Notes on a pro rata basis by, at their option, (i) redeeming Notes as provided under Section 3.07 hereof (ii) purchasing Notes through open-market purchases or (iii) by making an offer (in accordance with the procedures set forth herein for an Asset Sale Offer) to all Holders to purchase their Notes at a purchase price equal to 100.0% of the principal amount thereof, plus the amount of accrued but unpaid interest, if any, on the principal amount of the Notes to be repurchased to the date of repurchase;
(B) to the extent such Net Proceeds resulted from an Asset Sale not consisting of Collateral, Obligations in respect of other Secured Indebtedness (which may include the Notes), and, in the case of repaid is revolving commitmentscredit Indebtedness, to correspondingly reduce commitments with respect thereto;
(C2) Obligations in respect to acquire all or substantially all of the Notes assets of, or any other Indebtedness (other than Subordinated Indebtedness) of the Company or any Restricted SubsidiaryCapital Stock of, other than Indebtedness owed another Permitted Business if, after giving effect to the Company or any Restricted Subsidiary (and, in the case of revolving commitments, to correspondingly reduce commitments with respect thereto), provided that, to the extent either Issuer or any Restricted Subsidiary will so repay any such Indebtedness (other than the Notes)acquisition of Capital Stock, the Issuers will reduce Obligations under the Notes on a pro rata basis by, at their option, (i) redeeming Notes as provided under Section 3.07 hereof Permitted Business is or (ii) by making an offer (in accordance with the procedures set forth herein for an Asset Sale Offer) to all Holders to purchase their Notes at a purchase price equal to 100.0% of the principal amount thereof, plus the amount of accrued but unpaid interest, if any, on the principal amount of the Notes to be repurchased to the date of repurchase; or |US-DOCS\143900591.2||
(D) Obligations in respect of Indebtedness of a Non-Guarantor Subsidiary, other than Indebtedness owed to the Company or another Restricted Subsidiary; provided, in the case of clauses (A) or (C) above, (i) if an offer to purchase any Indebtedness of the Company or any Restricted Subsidiary is made, such amount will be deemed repaid to the extent of the amount of such offer, whether or not accepted by the holders of such Indebtedness, and no Net Proceeds in the amount of such offer will be deemed to exist following such offer, and (ii) if the holder of any Indebtedness of becomes a Restricted Subsidiary of the Company declines the repayment of such Indebtedness owed Company;
(3) to it from such Net Proceeds such amount will be deemed repaid to the extent of the declined Net Proceeds, make a capital expenditure; or
(24) to make acquire other assets that are not classified as current assets under GAAP and that are used or useful in a Permitted Business. Notwithstanding the foregoing, if within 360 days after the receipt of any Net Proceeds from an Investment in (A) any one or more businessesAsset Sale, provided that such Investment in any business is in the form of the acquisition of Capital Stock that results in the Company (or any the applicable Restricted Subsidiary, as the case may be) enters into a binding written agreement irrevocably committing the Company or such Restricted Subsidiary to an application of funds of the kind described in clause (2), owning (3) or (4) above, and as to which the only condition to closing is the receipt of required governmental approvals, the Company or such Restricted Subsidiary shall be deemed not to be in violation of the preceding paragraph; provided that such application of funds is consummated within 180 days after the end of such 360-day period. 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. An amount equal to any Net Proceeds from Asset Sales that are not applied or invested as provided in the preceding paragraphs will constitute “Excess Proceeds.” When the aggregate amount of Excess Proceeds exceeds $15.0 million, within five days thereof, the Company will make 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 or redeem with the proceeds of sales of assets in accordance with this Section 4.10 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 principal amount plus accrued and unpaid interest and Liquidated Damages, if any, to the date of purchase, and will be payable in cash. If any Excess Proceeds remain unapplied after consummation of an Asset Sale Offer, the Company and its Restricted Subsidiaries 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 shall be reset at zero. Notwithstanding the foregoing, the sale, conveyance or other disposition of all or substantially all of the assets of the Company and its Restricted Subsidiaries, taken as a whole, will be governed by the provisions of Sections 4.15 and/or 5.01 and not by this Section 4.10. 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 those laws and regulations are applicable in connection with each repurchase of Notes pursuant to an Asset Sale Offer. To the extent that the provisions of any securities laws or regulations conflict with the provisions of this Section 4.10, or compliance with the provisions of this Section 4.10 would constitute a violation of any such laws or regulations, the Company will comply with the applicable securities laws and regulations and will not be deemed to have breached its obligations under this Section 4.10 by virtue of such compliance. In the event that, pursuant to the preceding provisions of this Section 4.10, the Company is required to commence an offer to all Holders to purchase Notes (an “Asset Sale Offer”), it will follow the procedures specified below. 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. 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. 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, with a copy to the Trustee. 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:
(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 $1,000 only;
(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, telex, facsimile transmission or letter setting forth the name of the Holder, the principal amount of the Capital Stock of such business such Note the Holder delivered for purchase and a statement that such business constitutes Holder is withdrawing his election to have such Note purchased;
(8) 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 Restricted Subsidiary 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 $1,000, or increases integral multiples thereof, will be purchased); 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 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 Company’s direct , will promptly issue a new Note, and the Trustee, upon written request from the Company, will authenticate and mail or indirect percentage ownership 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 Capital Stock 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 a Restricted Subsidiary;the Asset Sale Offer on the Purchase Date.
Appears in 1 contract
Asset Sales. (a) From and after the Completion Date, the The Company shall not consummatenot, and shall not permit any of its Restricted Subsidiaries to consummate, cause or make an Asset Sale, unless:
unless (1x) the Company Company, or such 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 (as determined in good faith by the Company at the time of contractually agreeing to such Asset SaleCompany) of the assets sold or otherwise disposed of; and
of and (2y) except in the case of a Permitted Asset Swap, if the property or assets sold or otherwise disposed of have a fair market value in excess of the greater of $375.0 million and 50.0% of LTM EBITDA for the most recently ended Test Period at the time of such disposition, at least 75.075% of the consideration therefor received by the Company Company, or such Restricted Subsidiary, as the case may be, is in the form of cash or Cash Equivalents; provided that the amount ofof the following shall be deemed to be Cash Equivalents for the purposes of this provision:
(Ai) any liabilities, contingent liabilities (as shown on the Company’s or otherwise, such Restricted Subsidiary’s most recent balance sheet or in the notes thereto) of the Company or such any Restricted Subsidiary, Subsidiary (other than liabilities that are by their terms subordinated to the Notes or Notes) that are owed to the Company or a Restricted Subsidiary that (x) are assumed by the transferee of any such assets (or a third party in connection with such transfer) or (y) are otherwise cancelled or terminated in connection with the transaction with such transferee (other than intercompany debt owed to the Company or its Restricted Subsidiaries) and, in each case, for which the Company and all of its Restricted Subsidiaries have been validly released,assets;
(Bii) any securities, notes or other obligations or assets other securities received by the Company or such Restricted Subsidiary from such transferee that 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) within 180 days following the closing of such Asset Sale;); and
(C) Indebtedness of any Restricted Subsidiary that ceases to be a Restricted Subsidiary as a result of such Asset Sale (other than intercompany debt owed to the Company or any Restricted Subsidiary), to the extent that the Company and each other Restricted Subsidiary are released from any guarantee of payment of the principal amount of such Indebtedness in connection with such Asset Sale in accordance with the terms of this Indenture;
(D) consideration consisting of Indebtedness of the Issuers or a Guarantor (other than intercompany debt owed to the Company or any Restricted Subsidiary and other than Subordinated Indebtedness) received after the Issue Date from Persons who are not the Company, Holdings or any Restricted Subsidiary;
(Eiii) any Designated Non-cash Noncash Consideration received by the Company or such any of its Restricted Subsidiary Subsidiaries in such Asset Sale having an aggregate fair market value, as determined by the CompanyFair Market Value, taken together with all other Designated Non-cash Noncash Consideration received pursuant to this clause (E) that is at that time outstanding, not to exceed the greater of $225.0 million and 30.07.5% of LTM EBITDA for the most recently ended Test Period at the time of the receipt of |US-DOCS\143900591.2|| such Designated Non-cash Consideration Tangible Assets or $5.0 million (with the fair market value Fair Market Value of each such item of Designated Non-cash Noncash Consideration being measured pursuant to this clause (E) at the Company’s option, either at the time of contractually agreeing to such Asset Sale or at the time received and, in either case, and without giving effect to subsequent changes in value); and
(F) any Investment, Capital Stock, assets, property or capital or other expenditure of the kind referred to in clauses (2) or (3) of Section 4.10(b) hereof shall be deemed to be Cash Equivalents for purposes of this provision and for no other purpose.
(b) Within 540 365 days after the Company’s or any Restricted Subsidiary’s receipt of any the Net Proceeds of any Asset Sale (the “Proceeds Application Period”)Sale, the Company or such Restricted Subsidiary, at their option, Subsidiary may apply an amount equal to the Net Proceeds from such Asset Sale,
(1) to reduce, prepay, repay or purchaseat its option to:
(Ai) to permanently reduce Obligations under the extent such Net Proceeds are from an Asset Sale of Collateral, Obligations with Pari Passu Lien Priority Credit Agreement (including the Senior Credit Facilities or any Refinancing Indebtedness in respect thereof but other than Indebtedness owed to the Company or any Restricted Subsidiary), and, in the case of revolving obligationsObligations, to correspondingly temporarily reduce commitments with respect thereto, provided that, to the extent either Issuer such Obligations) or any Restricted Subsidiary will so repay any such other Senior Indebtedness or Pari Passu Indebtedness (other than provided that if the Notes)Company shall so reduce Obligations under Pari Passu Indebtedness, the Issuers shall it will equally and ratably reduce Obligations under the Notes on a pro rata basis by, at their option, (i) redeeming Notes as provided under Section 3.07 hereof (ii) purchasing Notes through open-market purchases or (iii) by making an offer (in accordance with the procedures set forth herein below for an Asset Sale Offer) to all Holders to purchase their Notes at a purchase price equal to 100.0100% of the principal amount thereof, plus the amount of accrued but and unpaid interest, if any, on the pro rata principal amount of the Notes to be repurchased to the date Notes) or Indebtedness of repurchase;
(B) to the extent such Net Proceeds resulted from an Asset Sale not consisting of Collateral, Obligations in respect of other Secured Indebtedness (which may include the Notes), and, in the case of revolving commitments, to correspondingly reduce commitments with respect thereto;
(C) Obligations in respect of the Notes or any other Indebtedness (other than Subordinated Indebtedness) of the Company or any a Restricted Subsidiary, in each case other than Indebtedness owed to the Company or any Restricted Subsidiary (and, in an Affiliate of the case of revolving commitments, to correspondingly reduce commitments with respect thereto), provided that, to the extent either Issuer or any Restricted Subsidiary will so repay any such Indebtedness (other than the Notes), the Issuers will reduce Obligations under the Notes on a pro rata basis by, at their option, (i) redeeming Notes as provided under Section 3.07 hereof or Company;
(ii) by making make an investment in any one or more businesses, capital expenditures or acquisitions of other assets in each case used or useful in a Similar Business, or set aside in respect of a project in connection therewith that has been commenced or for which a binding contractual commitment has been entered into; and/or
(iii) make an investment in properties or assets that replace the properties and assets that are the subject of such Asset Sale, or set aside in respect of a project in connection therewith that has been commenced or for which a binding contractual commitment has been entered into. Pending the final application of any such Net Proceeds, the Company or such Restricted Subsidiary may temporarily reduce Indebtedness under a revolving credit facility, if any, or otherwise invest such Net Proceeds in Cash Equivalents or Investment Grade Securities. Any Net Proceeds from any Asset Sale that are not applied as provided and within the time period set forth in the first sentence of this paragraph will be deemed to constitute “Excess Proceeds.” When the aggregate amount of Excess Proceeds exceeds $10.0 million, the Company shall make an offer to all Holders of Notes (in accordance with the procedures set forth herein for an “Asset Sale Offer”) to all Holders to purchase their the maximum principal amount of Notes that may be purchased out of the Excess Proceeds at a purchase an offer price in cash in an amount equal to 100.0100% of the principal amount thereof, plus the amount of accrued but and unpaid interest, if any, on to but not including the date fixed for the closing of such offer, in accordance with the procedures set forth in this Indenture. The Company will commence an Asset Sale Offer with respect to Excess Proceeds within ten Business Days after the date that Excess Proceeds exceed $10.0 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 tendered pursuant to an Asset Sale Offer is less than the Excess Proceeds, the Company may use any remaining Excess Proceeds for general corporate purposes. If the aggregate principal amount of Notes surrendered by Holders thereof exceeds the amount of Excess Proceeds, the Trustee shall select the Notes to be repurchased purchased pursuant to the date Section 4.06(c)(3). Upon completion of repurchase; or |US-DOCS\143900591.2||
(D) Obligations in respect of Indebtedness of a Non-Guarantor Subsidiaryany such Asset Sale Offer, other than Indebtedness owed to the Company or another Restricted Subsidiary; provided, in the case of clauses (A) or (C) above, (i) if an offer to purchase any Indebtedness of the Company or any Restricted Subsidiary is made, such amount will be deemed repaid to the extent of the amount of such offer, whether or not accepted by the holders of such IndebtednessExcess Proceeds shall be reset at zero.
(c) (1) Promptly, and no Net Proceeds in the amount of such offer will be deemed to exist following such offer, and (ii) if the holder of any Indebtedness of a Restricted Subsidiary of event within ten Business Days after the Company declines the repayment of such Indebtedness owed to it from such Net Proceeds such amount will be deemed repaid to the extent of the declined Net Proceeds, or
(2) becomes obligated to make an Investment Asset Sale Offer, the Company shall deliver to the Trustee and send, by first-class mail, postage prepaid, to each Holder at such Holder’s registered address, a written notice stating that the Holder may elect to have such Holder’s Notes purchased by the Company either in whole or in part (A) subject to prorating pursuant to Section 4.06(c)(3)), at the applicable purchase price. The notice shall be mailed at least 30 but not more than 60 days before the purchase date. If any one or more businessesNote is to be purchased in part only, provided any notice of purchase that relates to such Investment in any business is in Note shall state the form portion of the acquisition of Capital Stock principal amount thereof that results in the Company has been or any Restricted Subsidiary, as the case may be, owning an amount of the Capital Stock of such business such that such business constitutes a Restricted Subsidiary or increases the Company’s direct or indirect percentage ownership of the Capital Stock of a Restricted Subsidiary;is to be purchased.
Appears in 1 contract
Asset Sales. (a) From and after the Completion Date, the The Company shall not consummatenot, and shall not permit any of its Restricted Subsidiaries to consummateto, an directly or indirectly, consummate any Asset SaleSale unless, unless:
(1i) the Company (or such Restricted Subsidiary, as the case may be, ) receives consideration at the time of such Asset Sale at least equal to the fair market value (as determined in good faith by the Company at Board of Directors (including as to the time value of contractually agreeing all noncash consideration) and set forth in an Officer's Certificate delivered to such Asset Salethe Trustee) of the assets sold or otherwise disposed of; and
(2) except in the case of a Permitted Asset Swap, if the property Equity Interests issued or assets sold or otherwise disposed of have a fair market value in excess of the greater of $375.0 million and 50.0% of LTM EBITDA for the most recently ended Test Period at the time of such disposition, (ii) at least 75.075% of the consideration therefor is in the form of cash and/or Cash Equivalents, and (iii) the Net Proceeds received by the Company (or such Restricted Subsidiary, as the case may be) from such Asset Sale are applied within 360 days following the receipt of such Net Proceeds (a) to repay, is in redeem or repurchase outstanding pari passu Indebtedness of the form Company or Indebtedness of cash or Cash Equivalentsany Restricted Subsidiary; provided that in the amount of:
event that such Restricted Subsidiary is a Guarantor, the Indebtedness to be redeemed or repurchased ranks at least pari passu to the Guarantee given by such Restricted Subsidiary, (Ab) to reinvest, or enter into a legally binding agreement to reinvest, such Net Proceeds (or any liabilitiesportion thereof) in assets that are used or useful in a Permitted Business or in the Capital Stock of a Person engaged in a Permitted Business that is or immediately thereafter becomes a Restricted Subsidiary or (c) in any combination permitted by clauses (a) and (b). Pending the final application of any such Net Proceeds, contingent or otherwise, of the Company or such Restricted Subsidiary may invest such Net Proceeds in Cash Equivalents. The balance of such Net Proceeds, after the application of such Net Proceeds as described in the immediately preceding clauses (a) and (b), shall constitute "Excess Proceeds." When the aggregate amount of Excess Proceeds equals or exceeds $15.0 million, the Company will be required to and, at the election of the Company, at any earlier time, the Company, may make an offer to all Holders of Securities and pari passu Indebtedness (an "Asset Sale Offer") to purchase the maximum principal amount of Securities and pari passu Indebtedness that may be purchased out of the Excess Proceeds, at a purchase price in cash in an amount equal to 100% of the principal amount thereof, plus accrued and unpaid interest thereon to the date of purchase, in accordance with the procedures set forth in Article 3 of this Indenture and the agreements governing such pari passu 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 Securities and pari passu Indebtedness tendered into such Asset Sale Offer by holders thereof exceeds the amount of Excess Proceeds, the Trustee shall select the Securities and pari passu Indebtedness to be purchased on a pro rata basis. Upon completion of such Asset Sale Offer, the amount of Excess Proceeds shall be reset at zero for purposes of the first sentence of this paragraph. 64 64 The amount of (i) any liabilities (as shown on the Company's (or such Restricted Subsidiary's, as the case may be) 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 Securities or any guarantee thereof) that are owed to the Company or a Restricted Subsidiary that (x) are assumed by the transferee of any such assets (or a third party in connection with such transfer) or (y) are otherwise cancelled or terminated in connection with the transaction with such transferee (other than intercompany debt owed pursuant to an agreement that releases the Company or its Restricted Subsidiaries) and, in each case, for which the Company and all of its Restricted Subsidiaries have been validly released,
(B) any securities, notes or other obligations or assets received by the Company or such Restricted Subsidiary from such transferee that are converted by the Company or such Restricted Subsidiary into cash or Cash Equivalents all liability in respect thereof, (to the extent of the cash or Cash Equivalents received) within 180 days following the closing of such Asset Sale;
(Cii) Indebtedness of any Restricted Subsidiary that ceases to be is no longer a Restricted Subsidiary as a result of such Asset Sale (other than intercompany debt owed to the Company or any Restricted Subsidiary)Sale, to the extent that the Company and each other Restricted Subsidiary are released from any guarantee of payment of the principal amount of such Indebtedness in connection with such Asset Sale in accordance with (iii) any securities, Securities or other obligations received by the terms of this Indenture;
Company (Dor such Restricted Subsidiary, as the case may be) consideration consisting of Indebtedness from such transferee that are converted by the Company (or such Restricted Subsidiary, as the case may be) into cash and/or Cash Equivalents (to the extent of the Issuers cash and/or Cash Equivalents received) within 180 days following the receipt thereof, (iv) the Fair Market Value of any assets used or useful in a Guarantor Permitted Business received in such Asset Sale and (other than intercompany debt owed to the Company or any Restricted Subsidiary and other than Subordinated Indebtedness) received after the Issue Date from Persons who are not the Company, Holdings or any Restricted Subsidiary;
(Ev) any Designated Non-cash Noncash Consideration received by the Company or such any of its Restricted Subsidiary Subsidiaries in such Asset Sale having an aggregate fair market value, as determined by the CompanyFair Market Value, taken together with all other Designated Non-cash Noncash Consideration received pursuant to this clause (Ev) that is at that time outstanding, not to exceed the greater of $225.0 million and 30.010% of LTM EBITDA for the most recently ended Test Period Consolidated Tangible Assets at the time of the receipt of |US-DOCS\143900591.2|| such Designated Non-cash Consideration (with the fair market value of each such item of Designated Non-cash Consideration being measured pursuant to this clause (E) at the Company’s optionNoncash Consideration, either at the time of contractually agreeing to such Asset Sale or at the time received and, in either case, without giving effect to subsequent changes in value); and
(F) any Investment, Capital Stock, assets, property or capital or other expenditure of the kind referred to in clauses (2) or (3) of Section 4.10(b) hereof shall will be deemed to be cash and/or Cash Equivalents for purposes of this provision provision. The Company shall comply with the requirements of Rule 14e-1 under the Exchange Act, and for no any other purpose.
(b) Within 540 days after the receipt of any Net Proceeds of any Asset Sale (the “Proceeds Application Period”), the Company or such Restricted Subsidiary, at their option, may apply an amount equal to the Net Proceeds from such Asset Sale,
(1) to reduce, prepay, repay or purchase:
(A) securities laws and regulations to the extent such Net Proceeds laws and regulations are from an Asset Sale of Collateral, Obligations with Pari Passu Lien Priority (including the Senior Credit Facilities or any Refinancing Indebtedness applicable in respect thereof but other than Indebtedness owed to the Company or any Restricted Subsidiary), and, in the case of revolving obligations, to correspondingly reduce commitments with respect thereto, provided that, to the extent either Issuer or any Restricted Subsidiary will so repay any such Indebtedness (other than the Notes), the Issuers shall reduce Obligations under the Notes on a pro rata basis by, at their option, (i) redeeming Notes as provided under Section 3.07 hereof (ii) purchasing Notes through open-market purchases or (iii) by making an offer (in accordance connection with the procedures set forth herein for purchase of the Securities as a result of an Asset Sale Offer) to all Holders to purchase their Notes at a purchase price equal to 100.0% of the principal amount thereof, plus the amount of accrued but unpaid interest, if any, on the principal amount of the Notes to be repurchased to the date of repurchase;
(B) to . To the extent such Net Proceeds resulted from an that the provisions of any securities laws or regulations conflict with the Asset Sale not consisting provisions of Collateralthis Indenture, Obligations in respect of other Secured Indebtedness (which may include the Notes), and, in the case of revolving commitments, to correspondingly reduce commitments with respect thereto;
(C) Obligations in respect of the Notes or any other Indebtedness (other than Subordinated Indebtedness) of the Company or any Restricted Subsidiary, other than Indebtedness owed to the Company or any Restricted Subsidiary (and, in the case of revolving commitments, to correspondingly reduce commitments with respect thereto), provided that, to the extent either Issuer or any Restricted Subsidiary will so repay any such Indebtedness (other than the Notes), the Issuers will reduce Obligations under the Notes on a pro rata basis by, at their option, (i) redeeming Notes as provided under Section 3.07 hereof or (ii) by making an offer (in accordance shall comply with the procedures set forth herein for an Asset Sale Offer) to all Holders to purchase their Notes at a purchase price equal to 100.0% of the principal amount thereof, plus the amount of accrued but unpaid interest, if any, on the principal amount of the Notes to be repurchased to the date of repurchase; or |US-DOCS\143900591.2||
(D) Obligations in respect of Indebtedness of a Non-Guarantor Subsidiary, other than Indebtedness owed to the Company or another Restricted Subsidiary; provided, in the case of clauses (A) or (C) above, (i) if an offer to purchase any Indebtedness of the Company or any Restricted Subsidiary is made, such amount will be deemed repaid to the extent of the amount of such offer, whether or applicable securities laws and regulations and shall not accepted by the holders of such Indebtedness, and no Net Proceeds in the amount of such offer will be deemed to exist following such offer, and (ii) if have breached its obligations under the holder Asset Sale provisions of any Indebtedness of a Restricted Subsidiary of the Company declines the repayment of such Indebtedness owed to it from such Net Proceeds such amount will be deemed repaid to the extent of the declined Net Proceeds, or
(2) 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 that results in the Company or any Restricted Subsidiary, as the case may be, owning an amount of the Capital Stock of such business such that such business constitutes a Restricted Subsidiary or increases the Company’s direct or indirect percentage ownership of the Capital Stock of a Restricted Subsidiary;this Indenture by virtue thereof.
Appears in 1 contract
Sources: Indenture (Asia Global Crossing LTD)
Asset Sales. (a) From and after the Completion Date, the The Company shall not consummatenot, and shall not permit any of its Restricted Subsidiaries to consummateSubsidiary to, consummate an Asset Sale, Sale unless:
(1) the Company Company, or such 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 (as determined in good faith by the Company at the time of contractually agreeing to such Asset Sale) Fair Market Value of the assets or Equity Interests issued or sold or otherwise disposed of; and
(2) except in the case of a Permitted Asset Swap, if the property or assets sold or otherwise disposed of have a fair market value in excess of the greater of $375.0 million and 50.0% of LTM EBITDA for the most recently ended Test Period at the time of such disposition, at least 75.075% of the consideration therefor received in such Asset Sale by the Company or such Restricted Subsidiary, as the case may be, Subsidiary is in the form of cash or cash, Cash Equivalents; provided that , Replacement Assets or a combination thereof. For purposes of this clause (3), each of the amount offollowing shall be deemed to be cash:
(Aa) any Indebtedness or other liabilities, contingent as shown on the Company's or otherwisesuch Restricted Subsidiary's most recent balance sheet, of the Company or such any Restricted Subsidiary, Subsidiary (other than contingent liabilities and Indebtedness that are by their terms subordinated to the Notes or Notes), that are owed to the Company or a Restricted Subsidiary that (x) are assumed by the transferee of any such assets (or pursuant to a third party in connection with such transfer) or (y) are otherwise cancelled or terminated in connection with the transaction with such transferee (other than intercompany debt owed to written agreement that releases the Company or its such Restricted Subsidiaries) Subsidiary from further liability with respect to such Indebtedness or liabilities; and, in each case, for which the Company and all of its Restricted Subsidiaries have been validly released,
(Bb) any securities, notes or other obligations or assets received by the Company or any such Restricted Subsidiary from such transferee that are converted within 90 days of the applicable Asset Sale by the Company or such Restricted Subsidiary into cash or Cash Equivalents (cash, to the extent of the cash or Cash Equivalents received) within 180 days following the closing of such Asset Sale;
(C) Indebtedness of any Restricted Subsidiary that ceases to be a Restricted Subsidiary as a result of such Asset Sale (other than intercompany debt owed to the Company or any Restricted Subsidiary), to the extent that the Company and each other Restricted Subsidiary are released from any guarantee of payment of the principal amount of such Indebtedness in connection with such Asset Sale in accordance with the terms of this Indenture;
(D) consideration consisting of Indebtedness of the Issuers or a Guarantor (other than intercompany debt owed to the Company or any Restricted Subsidiary and other than Subordinated Indebtedness) received after the Issue Date from Persons who are not the Company, Holdings or any Restricted Subsidiary;
(E) any Designated Non-cash Consideration received by the Company or such Restricted Subsidiary in such Asset Sale having an aggregate fair market value, as determined by the Company, taken together with all other Designated Non-cash Consideration received pursuant to this clause (E) that is at that time outstanding, not to exceed the greater of $225.0 million and 30.0% of LTM EBITDA for the most recently ended Test Period at the time of the receipt of |US-DOCS\143900591.2|| such Designated Non-cash Consideration (with the fair market value of each such item of Designated Non-cash Consideration being measured pursuant to this clause (E) at the Company’s option, either at the time of contractually agreeing to such Asset Sale or at the time received and, in either case, without giving effect to subsequent changes in value); and
(F) any Investment, Capital Stock, assets, property or capital or other expenditure of the kind referred to in clauses (2) or (3) of Section 4.10(b) hereof shall be deemed to be Cash Equivalents for purposes of this provision and for no other purposeconversion.
(b) [Reserved].
(c) Within 540 360 days after the receipt of any Net Proceeds of any from an Asset Sale (the “Proceeds Application Period”)Sale, the Company or such any of its Restricted Subsidiary, at their option, Subsidiaries may apply an amount equal to the those Net Proceeds from such Asset Sale,at its option:
(1) (a) to reduce, prepay, permanently repay or purchase:
(A) to the extent such Net Proceeds are from an Asset Sale of Collateralreduce Indebtedness, Obligations with Pari Passu Lien Priority (including the Senior Credit Facilities or any Refinancing Indebtedness in respect thereof but other than Indebtedness owed to Subordinated Indebtedness, of the Company or any Restricted Subsidiary), and, in if the case of Indebtedness repaid is revolving obligationscredit Indebtedness, to correspondingly reduce commitments with respect thereto; or (b) to permanently repay or reduce Indebtedness of any of the Company's Restricted Subsidiaries;
(2) to acquire, provided thator enter into a binding agreement to acquire, to all or substantially all of the extent either Issuer or any Restricted Subsidiary will so repay any such Indebtedness assets (other than the Notescash, Cash Equivalents and securities) of any Person engaged in a Permitted Business; provided, however, that any such commitment shall be subject only to customary conditions (other than financing), and such acquisition shall be consummated no later than 180 days after the Issuers end of such 360-day period;
(3) to acquire, or enter into a binding agreement to acquire, Voting Stock of a Person engaged in a Permitted Business from a Person that is not a Subsidiary of the Company; provided, however, that such commitment shall be subject only to customary conditions (other than financing) and such acquisition shall be consummated no later than 180 days after the end of such 360-day period; and provided, further, however, that (a) if the Net Proceeds are from the sale of assets of the Company or any of its Restricted Subsidiaries or the Equity Interests of any of its Restricted Subsidiaries, after giving effect thereto, the Person so acquired becomes a Restricted Subsidiary and (b) such acquisition is otherwise made in accordance with this Indenture, including, without limitation, Section 4.10 hereof;
(4) to acquire, or enter into a binding agreement to acquire, previously issued and outstanding Voting Stock of a non-Wholly Owned Restricted Subsidiary of the Company (a) from a Person that is not an Affiliate of the Company or (b) in a brokered transaction through the facilities of a stock exchange; provided, however, that such commitment shall be subject only to customary conditions (other than financing) and such acquisition shall be consummated no later than 180 days after the end of such 360-day period;
(5) to make capital expenditures; or
(6) to acquire, or enter into a binding agreement to acquire, other long-term assets (other than securities) that are used or useful in a Permitted Business; provided, however, that such commitment shall be subject only to customary conditions (other than financing) and such acquisition shall be consummated no later than 180 days after the end of such 360-day period. Pending the final application of any Net Proceeds, the Company may temporarily reduce Obligations under revolving credit borrowings or otherwise invest the Notes on a pro rata basis by, at their option, Net Proceeds in any manner that is not prohibited by this Indenture.
(id) redeeming Notes Any Net Proceeds from Asset Sales that are not applied or invested as provided under Section 3.07 hereof in paragraph (iic) purchasing Notes through open-market purchases or above shall constitute "Excess Proceeds."
(iiie) by making When the aggregate amount of Excess Proceeds exceeds Cnd$100.0 million, the Company shall make an offer (an "Asset Sale Offer") to all Holders of Notes and all holders of other Indebtedness that is pari passu in right of payment with the Notes containing provisions similar to those set forth in this Indenture with respect to offers to purchase or redeem with the proceeds of sales of assets, to purchase the maximum principal amount of Notes and such other pari passu Indebtedness that may be purchased out of the Excess Proceeds in accordance with the procedures set forth herein for in Section 3.09 hereof. The offer price in any Asset Sale Offer shall be equal to 100% of principal amount of the Notes and such other pari passu Indebtedness, plus accrued and unpaid interest to the date of purchase, and shall be payable in cash. If any Excess Proceeds remain after consummation of an Asset Sale Offer) to Offer and all Holders of Notes have been given the opportunity to purchase tender their Notes at a for purchase price equal to 100.0% of in accordance with such Asset Sale Offer and this Indenture, the Company may use such Excess Proceeds for any purpose not otherwise prohibited by this Indenture. If the aggregate principal amount thereof, plus of Notes and such other pari passu Indebtedness tendered into such Asset Sale Offer exceeds the amount of accrued but unpaid interestExcess Proceeds, if any, the Notes and such other pari passu Indebtedness shall be purchased on a pro rata basis based on the principal amount of Notes and such other pari passu Indebtedness tendered. Upon completion of each Asset Sale Offer, the Notes to amount of Excess Proceeds shall be repurchased to reset at zero. The Company shall comply with the date requirements of repurchase;
(B) Rule 14e-1 under the Exchange Act and any other securities laws and regulations thereunder to the extent such Net Proceeds resulted from an Asset Sale not consisting laws and regulations are applicable in connection with each repurchase of Collateral, Obligations in respect of other Secured Indebtedness (which may include the Notes), and, in the case of revolving commitments, Notes pursuant to correspondingly reduce commitments with respect thereto;
(C) Obligations in respect of the Notes or any other Indebtedness (other than Subordinated Indebtedness) of the Company or any Restricted Subsidiary, other than Indebtedness owed to the Company or any Restricted Subsidiary (and, in the case of revolving commitments, to correspondingly reduce commitments with respect thereto), provided that, to the extent either Issuer or any Restricted Subsidiary will so repay any such Indebtedness (other than the Notes), the Issuers will reduce Obligations under the Notes on a pro rata basis by, at their option, (i) redeeming Notes as provided under Section 3.07 hereof or (ii) by making an offer (in accordance with the procedures set forth herein for an Asset Sale Offer) to all Holders to purchase their Notes at a purchase price equal to 100.0% . To the extent that the provisions of any securities laws or regulations conflict with the principal amount thereofAsset Sales provisions of this Indenture, plus the amount of accrued but unpaid interest, if any, on the principal amount of the Notes to be repurchased to the date of repurchase; or |US-DOCS\143900591.2||
(D) Obligations in respect of Indebtedness of a Non-Guarantor Subsidiary, other than Indebtedness owed to the Company or another Restricted Subsidiary; provided, in shall comply with the case of clauses (A) or (C) above, (i) if an offer to purchase any Indebtedness of the Company or any Restricted Subsidiary is made, such amount will applicable securities laws and regulations and shall be deemed repaid not to have breached its obligations under the extent Asset Sale provisions of the amount this Indenture by virtue of such offer, whether or not accepted by the holders of such Indebtedness, and no Net Proceeds in the amount of such offer will be deemed to exist following such offer, and (ii) if the holder of any Indebtedness of a Restricted Subsidiary of the Company declines the repayment of such Indebtedness owed to it from such Net Proceeds such amount will be deemed repaid to the extent of the declined Net Proceeds, or
(2) 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 that results in the Company or any Restricted Subsidiary, as the case may be, owning an amount of the Capital Stock of such business such that such business constitutes a Restricted Subsidiary or increases the Company’s direct or indirect percentage ownership of the Capital Stock of a Restricted Subsidiary;conflict.
Appears in 1 contract
Sources: Indenture (Quebecor Media Inc)
Asset Sales. (a) From and after the Completion Date, the The Company shall not consummatenot, and shall not permit any of its Restricted Subsidiaries to consummateto, consummate an Asset Sale, unless:
unless (1i) the Company (or such Restricted the 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 determined in good faith by of the Company at date of the time of contractually agreeing definitive agreement with respect to such Asset Sale) of the assets assets, property or Capital Stock issued or sold or otherwise disposed of; and
and (2ii) except at least 75% of the consideration received from such Asset Sale and all other Asset Sales since the Issue Date on a cumulative basis is, or will be when paid (in the case of a Permitted Asset Swapmilestones, if the property or assets sold or otherwise disposed of have a fair market value in excess of the greater of $375.0 million royalties and 50.0% of LTM EBITDA for the most recently ended Test Period at the time of such dispositionother deferred payment obligations), at least 75.0% of the consideration therefor received by the Company or such Restricted Subsidiary, as the case may be, is in the form of cash or Cash Equivalents; provided that the amount of:
and (Aiii) any liabilities, contingent or otherwise, of the Company or such Restricted Subsidiary, other than liabilities that are by their terms subordinated immediately after giving effect to the Notes or that are owed to the Company or a Restricted Subsidiary that (x) are assumed by the transferee of any such assets (or a third party in connection with such transfer) or (y) are otherwise cancelled or terminated in connection with the transaction with such transferee (other than intercompany debt owed to the Company or its Restricted Subsidiaries) and, in each case, for which the Company and all of its Restricted Subsidiaries have been validly released,
(B) any securities, notes or other obligations or assets received by the Company or such Restricted Subsidiary from such transferee that are converted by the Company or such Restricted Subsidiary into cash or Cash Equivalents (to the extent of the cash or Cash Equivalents received) within 180 days following the closing of such Asset Sale;
(C) Indebtedness , no Default or Event of any Restricted Subsidiary that ceases to Default shall have occurred and be a Restricted Subsidiary as a result of such Asset Sale (other than intercompany debt owed to the Company or any Restricted Subsidiary), to the extent that the Company and each other Restricted Subsidiary are released from any guarantee of payment of the principal amount of such Indebtedness in connection with such Asset Sale in accordance with the terms of continuing under this Indenture;
(D) consideration consisting of Indebtedness of the Issuers or a Guarantor (other than intercompany debt owed to the Company or any Restricted Subsidiary and other than Subordinated Indebtedness) received after the Issue Date from Persons who are not the Company, Holdings or any Restricted Subsidiary;
(E) any Designated Non-cash Consideration received by the Company or such Restricted Subsidiary in such Asset Sale having an aggregate fair market value, as determined by the Company, taken together with all other Designated Non-cash Consideration received pursuant to this clause (E) that is at that time outstanding, not to exceed the greater of $225.0 million and 30.0% of LTM EBITDA for the most recently ended Test Period at the time of the receipt of |US-DOCS\143900591.2|| such Designated Non-cash Consideration (with the fair market value of each such item of Designated Non-cash Consideration being measured pursuant to this clause (E) at the Company’s option, either at the time of contractually agreeing to such Asset Sale or at the time received and, in either case, without giving effect to subsequent changes in value); and
(F) any Investment, Capital Stock, assets, property or capital or other expenditure of the kind referred to in clauses (2) or (3) of Section 4.10(b) hereof shall be deemed to be Cash Equivalents for purposes of this provision and for no other purpose.
(b) Within 540 180 days after the receipt of any Net Proceeds of any from an Asset Sale (the “Proceeds Application Period”)Sale, the Company or such Restricted Subsidiary, at their option, may apply an amount equal to the Net Proceeds from such Asset Sale,
may be used to permanently repay the Notes and/or the Existing Convertible Notes (1) to reduce, prepay, repay or purchase:
(A) to the extent such Existing Convertible Notes are held by Initial Holders), or any portion or combination thereof. Any Net Proceeds are from an Asset Sale of Collateral, Obligations with Pari Passu Lien Priority (including the Senior Credit Facilities or any Refinancing Indebtedness in respect thereof but other than Indebtedness owed Sales not applied pursuant to the immediately preceding sentence in any fiscal year in excess of $10,000,000 (when aggregated with the Net Proceeds received by the Company or any Restricted Subsidiary), and, and its Subsidiaries from prior Asset Sales in such fiscal year not so applied) will constitute “Excess Proceeds”. Within 30 days after the case earlier of revolving obligations, to correspondingly reduce commitments with respect thereto, provided that, to the extent either Issuer or any Restricted Subsidiary will so repay any such Indebtedness (other than the Notes), the Issuers shall reduce Obligations under the Notes on a pro rata basis by, at their option, (i) redeeming Notes as provided under Section 3.07 hereof (ii) purchasing Notes through open-market purchases or (iii) by making an offer (receipt of any Excess Proceeds in accordance with the procedures set forth herein for an Asset Sale Offer) to all Holders to purchase their Notes at a purchase price equal to 100.0% excess of the principal amount thereof, plus the amount of accrued but unpaid interest, if any, on the principal amount of the Notes to be repurchased to the date of repurchase;
(B) to the extent such Net Proceeds resulted from an Asset Sale not consisting of Collateral, Obligations in respect of other Secured Indebtedness (which may include the Notes), and, in the case of revolving commitments, to correspondingly reduce commitments with respect thereto;
(C) Obligations in respect of the Notes or any other Indebtedness (other than Subordinated Indebtedness) of the Company or any Restricted Subsidiary, other than Indebtedness owed to the Company or any Restricted Subsidiary (and, in the case of revolving commitments, to correspondingly reduce commitments with respect thereto), provided that, to the extent either Issuer or any Restricted Subsidiary will so repay any such Indebtedness (other than the Notes), the Issuers will reduce Obligations under the Notes on a pro rata basis by, at their option, (i) redeeming Notes as provided under Section 3.07 hereof $10,000,000 or (ii) by making an offer (in accordance with 180 days from the procedures set forth herein for an Asset Sale Offer) to all Holders to purchase their Notes date the Company first receives $1 of Excess Proceeds, the Company will use at a purchase price equal to 100.0least 70% of such Excess Proceeds (the principal amount thereof, plus the amount of accrued but unpaid interest, if any, on the principal amount of the Notes to be repurchased to the date of repurchase; or |US-DOCS\143900591.2||
(D) Obligations in respect of Indebtedness of a Non-Guarantor Subsidiary, other than Indebtedness owed to the Company or another Restricted Subsidiary; provided, in the case of clauses (A) or (C) above, (i) if an offer to purchase any Indebtedness of the Company or any Restricted Subsidiary is made, such amount will be deemed repaid to the extent of the amount of such offer, whether or not accepted by the holders of such Indebtedness, and no Net Proceeds in the amount of such offer will be deemed to exist following such offer, and (ii) if the holder of any Indebtedness of a Restricted Subsidiary of the Company declines the repayment of such Indebtedness owed to it from such Net Proceeds such amount will be deemed repaid to the extent of the declined Net “Subject Excess Proceeds, or
(2”) to make an Investment in offer (Aeach, an “Asset Sale Offer”) any one or more businessesto (1) all Holders of Notes or, provided that such Investment in any business is in alternatively, (2) subject to compliance with the form other provisions of this Indenture, including Section 4.13(b), all Holders of Notes and all holders of the acquisition Existing Convertible Notes in equal proportions, to purchase the maximum principal amount of Capital Stock that results in the Company or any Restricted SubsidiaryNotes and/or Existing Convertible Notes, as the case may be, owning an amount of such Subject Excess Proceeds (the “Offer Amount”). The offer price for the Notes in any Asset Sale Offer will be equal to at least the greater of (x) 100% of the Capital aggregate principal amount purchased plus accrued and unpaid interest on such principal amount to the date of purchase or (y) the value of the Notes on an as converted basis as of the date of the Asset Sale Offer with the Conversion Rate adjusted pursuant to Sections 14.03 and 14.04 in respect of a Make-Whole Fundamental Change, plus accrued and unpaid interest thereon, in each case payable in cash, Common Stock of such business such that such business constitutes or a Restricted Subsidiary or increases combination thereof, to be determined in the Company’s direct or indirect percentage ownership sole discretion. The Company shall be solely responsible for the calculation of the Capital Stock Offer Amount, and the Trustee shall have no duty to calculate or verify the Company’s calculation thereof. The Company will conduct the Asset Sale Offer using procedures applicable to a repurchase offer set forth in Section 16.02. If any Subject Excess Proceeds remain after consummation of an Asset Sale Offer, the Company may use those Subject Excess Proceeds for any purpose not otherwise prohibited by this Indenture. If the aggregate principal amount of Notes and/or Existing Convertible Notes tendered in or required to be prepaid or redeemed in connection with such Asset Sale Offer exceeds the Offer Amount, the Company will select the Notes and/or Existing Convertible Notes to be purchased, prepaid or redeemed on a Restricted Subsidiary;pro rata basis (subject to adjustment to maintain the authorized minimum denomination of the Notes and/or Existing Convertible Notes), based on the amounts tendered or required to be prepaid or redeemed.
Appears in 1 contract
Sources: Indenture (3d Systems Corp)
Asset Sales. The Company may not, and may not permit any Restricted Subsidiary to, directly or indirectly, consummate an Asset Sale (including the sale of any of the Capital Stock of any Restricted Subsidiary) providing for Net Proceeds in excess of $5,000,000 unless at least 75% of the Net Proceeds from such Asset Sale are applied (in any manner otherwise permitted by this Indenture) to one or more of the following purposes in such combination as the Company shall elect: (a) From and after an investment in another asset or business in the Completion Datesame line of business as, or a line of business similar to that of, the line of business of the Company shall not consummate, and shall not permit any of its Restricted Subsidiaries to consummate, an Asset Sale, unless:
(1) the Company or such Restricted Subsidiary, as the case may be, receives consideration at the time of the Asset Sale; provided that such investment occurs on or prior to the 365th day following the date of such Asset Sale (the "Asset Sale Disposition Date"); (b) to reimburse the Company or its Subsidiaries for expenditures made, and costs incurred, to repair, rebuild, replace or restore property subject to loss, damage or taking to the extent that the Net Proceeds consist of insurance proceeds received on account of such loss, damage or taking; (c) the purchase, redemption or other prepayment or repayment of outstanding Senior Indebtedness of the Company or Indebtedness of the Company's Restricted Subsidiaries on or prior to the 365th day following the Asset Sale Disposition Date; or (d) an Offer expiring on or prior to the Purchase Date (as defined herein). In addition, the Company may not, and may not permit any Restricted Subsidiary to, directly or indirectly, consummate an Asset Sale unless at least equal to the fair market value (as determined in good faith by the Company at the time of contractually agreeing to such Asset Sale) of the assets sold or otherwise disposed of; and
(2) except in the case of a Permitted Asset Swap, if the property or assets sold or otherwise disposed of have a fair market value in excess of the greater of $375.0 million and 50.0% of LTM EBITDA for the most recently ended Test Period at the time of such disposition, at least 75.075% of the consideration therefor thereof received by the Company or such Restricted Subsidiary, as the case may be, Subsidiary is in the form of cash, cash equivalents or Cash Equivalentsmarketable securities; provided that that, solely for purposes of calculating such 75% of the consideration, the amount of:
of (Ax) any liabilitiesliabilities (as shown on the Company's or such Restricted Subsidiary's most recent balance sheet or in the notes thereto, excluding contingent or otherwise, liabilities and trade payables) of the Company or such any Restricted Subsidiary, Subsidiary (other than liabilities that are by their terms subordinated to the Notes or Notes) that are owed to the Company or a Restricted Subsidiary that (x) are assumed by the transferee of any such assets (or a third party in connection with such transfer) or and (y) are otherwise cancelled or terminated in connection with the transaction with such transferee (other than intercompany debt owed to the Company or its Restricted Subsidiaries) and, in each case, for which the Company and all of its Restricted Subsidiaries have been validly released,
(B) any securities, notes or other obligations or assets received by the Company or any such Restricted Subsidiary from such transferee that are promptly, but in no event more than 30 days after receipt, converted by the Company or such Restricted Subsidiary into cash or Cash Equivalents (to the extent of the cash or Cash Equivalents received) within 180 days following the closing of such Asset Sale;
(C) Indebtedness of any Restricted Subsidiary that ceases to be a Restricted Subsidiary as a result of such Asset Sale (other than intercompany debt owed to the Company or any Restricted Subsidiary), to the extent that the Company and each other Restricted Subsidiary are released from any guarantee of payment of the principal amount of such Indebtedness in connection with such Asset Sale in accordance with the terms of this Indenture;
(D) consideration consisting of Indebtedness of the Issuers or a Guarantor (other than intercompany debt owed to the Company or any Restricted Subsidiary and other than Subordinated Indebtedness) received after the Issue Date from Persons who are not the Company, Holdings or any Restricted Subsidiary;
(E) any Designated Non-cash Consideration received by the Company or such Restricted Subsidiary in such Asset Sale having an aggregate fair market value, as determined by the Company, taken together with all other Designated Non-cash Consideration received pursuant to this clause (E) that is at that time outstanding, not to exceed the greater of $225.0 million and 30.0% of LTM EBITDA for the most recently ended Test Period at the time of the receipt of |US-DOCS\143900591.2|| such Designated Non-cash Consideration (with the fair market value of each such item of Designated Non-cash Consideration being measured pursuant to this clause (E) at the Company’s option, either at the time of contractually agreeing to such Asset Sale or at the time received and, in either case, without giving effect to subsequent changes in value); and
(F) any Investment, Capital Stock, assets, property or capital or other expenditure of the kind referred to in clauses (2) or (3) of Section 4.10(b) hereof shall be deemed to be Cash Equivalents cash and cash equivalents for purposes of this provision and for no other purpose.
(b) Within 540 days after the receipt of any provision. Any Net Proceeds of from any Asset Sale that are not applied or invested as provided in the first sentence of this paragraph shall constitute "Excess Proceeds." When the aggregate amount of Excess Proceeds exceeds $10,000,000 (the “Proceeds Application Period”such date being an "Asset Sale Trigger Date"), the Company or such Restricted Subsidiaryshall make an Offer to all holders of Notes to purchase the maximum principal amount of the Notes then outstanding that may be purchased out of Excess Proceeds, at their option, may apply an amount offer price in cash equal to the Net Proceeds from such Asset Sale,
(1) to reduce100% of principal amount thereof, prepayplus any accrued and unpaid interest and Liquidated Damages, repay or purchase:
(A) to the extent such Net Proceeds are from an Asset Sale of Collateral, Obligations with Pari Passu Lien Priority (including the Senior Credit Facilities or any Refinancing Indebtedness in respect thereof but other than Indebtedness owed to the Company or any Restricted Subsidiary), and, in the case of revolving obligations, to correspondingly reduce commitments with respect thereto, provided thatif any, to the extent either Issuer or any Restricted Subsidiary will so repay any such Indebtedness (other than the Notes)Purchase Date, the Issuers shall reduce Obligations under the Notes on a pro rata basis by, at their option, (i) redeeming Notes as provided under Section 3.07 hereof (ii) purchasing Notes through open-market purchases or (iii) by making an offer (in accordance with the procedures set forth herein in this Indenture. Notwithstanding the foregoing, to the extent that any or all of the Net Proceeds of an Asset Sale is prohibited or delayed by applicable local law from being repatriated to the United States, the portion of such Net Proceeds so affected will not be required to be applied as described in this or the preceding paragraph, but may be retained for so long, but only for so long, as the applicable local law prohibits repatriation to the United States. To the extent that any Excess Proceeds remain after completion of an Offer, the Company may use such remaining amount for general corporate purposes. If the aggregate principal amount of Notes surrendered by holders thereof exceeds the amount of Excess Proceeds, the Trustee shall select the Notes to be purchased on a pro rata basis. Upon completion of an Asset Sale Offer) to all Holders to purchase their Notes at a purchase price equal to 100.0% of the principal amount thereof, plus the amount of accrued but unpaid interest, if any, on the principal amount of the Notes to Excess Proceeds shall be repurchased to the date of repurchase;
(B) to the extent such Net Proceeds resulted from an Asset Sale not consisting of Collateral, Obligations in respect of other Secured Indebtedness (which may include the Notes), and, in the case of revolving commitments, to correspondingly reduce commitments with respect thereto;
(C) Obligations in respect of the Notes or any other Indebtedness (other than Subordinated Indebtedness) of the Company or any Restricted Subsidiary, other than Indebtedness owed to the Company or any Restricted Subsidiary (and, in the case of revolving commitments, to correspondingly reduce commitments with respect thereto), provided that, to the extent either Issuer or any Restricted Subsidiary will so repay any such Indebtedness (other than the Notes), the Issuers will reduce Obligations under the Notes on a pro rata basis by, reset at their option, (i) redeeming Notes as provided under Section 3.07 hereof or (ii) by making an offer (in accordance with the procedures set forth herein for an Asset Sale Offer) to all Holders to purchase their Notes at a purchase price equal to 100.0% of the principal amount thereof, plus the amount of accrued but unpaid interest, if any, on the principal amount of the Notes to be repurchased to the date of repurchase; or |US-DOCS\143900591.2||
(D) Obligations in respect of Indebtedness of a Non-Guarantor Subsidiary, other than Indebtedness owed to the Company or another Restricted Subsidiary; provided, in the case of clauses (A) or (C) above, (i) if an offer to purchase any Indebtedness of the Company or any Restricted Subsidiary is made, such amount will be deemed repaid to the extent of the amount of such offer, whether or not accepted by the holders of such Indebtedness, and no Net Proceeds in the amount of such offer will be deemed to exist following such offer, and (ii) if the holder of any Indebtedness of a Restricted Subsidiary of the Company declines the repayment of such Indebtedness owed to it from such Net Proceeds such amount will be deemed repaid to the extent of the declined Net Proceeds, or
(2) 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 that results in the Company or any Restricted Subsidiary, as the case may be, owning an amount of the Capital Stock of such business such that such business constitutes a Restricted Subsidiary or increases the Company’s direct or indirect percentage ownership of the Capital Stock of a Restricted Subsidiary;zero.
Appears in 1 contract
Sources: Indenture (Jackson Products Inc)
Asset Sales. (a) From and after the Completion Date, the The Company shall not consummatenot, and shall not permit any of its Restricted Subsidiaries to consummateto, consummate an Asset Sale, Sale unless:
(1i) the Company (or such the Restricted Subsidiary, as the case may be, ) receives consideration at the time of such Asset Sale at least equal to the fair market value (as determined in good faith by the Company at the time of contractually agreeing to such Asset Sale) of the assets sold or otherwise disposed of; and
(2) except in the case of a Permitted Asset Swap, if the property Equity Interests issued or assets sold or otherwise disposed of have a fair market value in excess of (as reasonably determined by the greater of $375.0 million and 50.0% of LTM EBITDA for the most recently ended Test Period at the time of Company or such disposition, Restricted Subsidiary); and
(ii) at least 75.075% of the consideration therefor received by the Company or such Restricted Subsidiary, as the case may be, Subsidiary is in the form of cash or Cash Equivalents; provided that Equivalents other than in the amount ofcase where the Company or such Restricted Subsidiary is undertaking a Hospital Swap. For purposes of this provision, each of the following shall be deemed to be cash:
(A) any liabilities, contingent liabilities (as shown on the Company's or otherwisesuch Restricted Subsidiary's most recent balance sheet), of the Company or such any Restricted Subsidiary, Subsidiary (other than contingent liabilities and liabilities that are by their terms subordinated to the Notes or any Subsidiary Guarantee) that are owed to the Company or a Restricted Subsidiary that (x) are assumed by the transferee of any such assets (or pursuant to a third party in connection with such transfer) or (y) are otherwise cancelled or terminated in connection with the transaction with such transferee (other than intercompany debt owed to novation agreement that releases the Company or its such Restricted Subsidiaries) Subsidiary from further liability; and, in each case, for which the Company and all of its Restricted Subsidiaries have been validly released,
(B) any securities, notes or other obligations or assets received by the Company or any such Restricted Subsidiary from such transferee that are (subject to ordinary settlement periods) converted by the Company or such Restricted Subsidiary into cash or Cash Equivalents (to the extent of the cash or Cash Equivalents receivedreceived in that conversion) within 180 days following of the closing of such applicable Asset Sale;
. Notwithstanding the foregoing, the 75% limitation referred to in clause (Cii) Indebtedness of shall not apply to any Restricted Subsidiary that ceases to be a Restricted Subsidiary as a result of such Asset Sale (other than intercompany debt owed to in which the Company cash or any Restricted Subsidiary), to the extent that the Company and each other Restricted Subsidiary are released from any guarantee of payment Cash Equivalents portion of the principal amount of such Indebtedness in connection with such Asset Sale consideration received therefrom, determined in accordance with the terms of this Indenture;
(D) consideration consisting of Indebtedness of foregoing provision, is equal to or greater than what the Issuers or a Guarantor (other than intercompany debt owed to the Company or any Restricted Subsidiary and other than Subordinated Indebtedness) received after the Issue Date from Persons who are not the Company, Holdings or any Restricted Subsidiary;
(E) any Designated Nonafter-cash Consideration received by the Company or such Restricted Subsidiary in tax proceeds would have been had such Asset Sale having an aggregate fair market value, as determined by the Company, taken together with all other Designated Non-cash Consideration received pursuant to this clause (E) that is at that time outstanding, not to exceed the greater of $225.0 million and 30.0% of LTM EBITDA for the most recently ended Test Period at the time of the receipt of |US-DOCS\143900591.2|| such Designated Non-cash Consideration (complied with the fair market value of each such item of Designated Non-cash Consideration being measured pursuant to this clause (E) at the Company’s option, either at the time of contractually agreeing to such Asset Sale or at the time received and, in either case, without giving effect to subsequent changes in value); and
(F) any Investment, Capital Stock, assets, property or capital or other expenditure of the kind referred to in clauses (2) or (3) of Section 4.10(b) hereof shall be deemed to be Cash Equivalents for purposes of this provision and for no other purpose.
(b) aforementioned 75% limitation. Within 540 365 days after the receipt of any Net Proceeds of any from an Asset Sale (the “Proceeds Application Period”)Sale, the Company or such Restricted Subsidiary, at their option, may apply an amount equal to the such Net Proceeds from such Asset Sale,
(1) to reduce, prepay, repay or purchaseat its option:
(Ai) to the extent such Net Proceeds are from an Asset Sale of Collateralrepay Senior Debt and, Obligations with Pari Passu Lien Priority (including if the Senior Credit Facilities or any Refinancing Indebtedness in respect thereof but other than Indebtedness owed to the Company or any Restricted Subsidiary), and, in the case of Debt repaid is revolving obligations, to correspondingly reduce commitments with respect thereto, provided that, to the extent either Issuer or any Restricted Subsidiary will so repay any such Indebtedness (other than the Notes), the Issuers shall reduce Obligations under the Notes on a pro rata basis by, at their option, (i) redeeming Notes as provided under Section 3.07 hereof (ii) purchasing Notes through open-market purchases or (iii) by making an offer (in accordance with the procedures set forth herein for an Asset Sale Offer) to all Holders to purchase their Notes at a purchase price equal to 100.0% of the principal amount thereof, plus the amount of accrued but unpaid interest, if any, on the principal amount of the Notes to be repurchased to the date of repurchase;
(B) to the extent such Net Proceeds resulted from an Asset Sale not consisting of Collateral, Obligations in respect of other Secured Indebtedness (which may include the Notes), and, in the case of revolving commitmentscredit Indebtedness, to correspondingly reduce commitments with respect thereto;
(Cii) Obligations in respect to acquire all or substantially all of the Notes assets of, or any the Voting Stock of, another Permitted Business;
(iii) to make capital expenditures; or
(iv) to acquire other Indebtedness assets that are used or useful in a Permitted Business; provided that the requirements of clauses (other than Subordinated Indebtednessii) of through (iv) above shall be deemed to be satisfied if an agreement (including a lease, whether a capital lease or an operating lease) committing to make the acquisitions or expenditures referred to therein is entered into by the Company or any Restricted Subsidiary, other than Indebtedness owed to the Company or any its Restricted Subsidiary (andwithin 365 days after the receipt of such Net Proceeds and such Net Proceeds are applied in accordance with such agreement. Notwithstanding the foregoing, in the case of revolving commitments, to correspondingly reduce commitments with respect thereto), provided that, to the extent either Issuer or any event that a Restricted Subsidiary will so repay any such Indebtedness (other than the Notes), the Issuers will reduce Obligations under the Notes dividends or distributes to all of its stockholders on a pro rata basis by, at their option, (i) redeeming Notes as provided under Section 3.07 hereof or (ii) by making an offer (in accordance with the procedures set forth herein for any proceeds of an Asset Sale Offer) to all Holders to purchase their Notes at a purchase price equal to 100.0% of the principal amount thereof, plus the amount of accrued but unpaid interest, if any, on the principal amount of the Notes to be repurchased to the date of repurchase; or |US-DOCS\143900591.2||
(D) Obligations in respect of Indebtedness of a Non-Guarantor Subsidiary, other than Indebtedness owed to the Company or another Restricted Subsidiary; provided, the Company or such Restricted Subsidiary need only apply its share of such proceeds in accordance with the case of preceding clauses (A) or (C) above, (i) if through (iv). Pending the final application of any such Net Proceeds, the Company may temporarily reduce revolving credit borrowings or otherwise invest such Net Proceeds in any manner that is not prohibited by this Indenture. Any Net Proceeds from Asset Sales that are not applied or invested as provided in the preceding paragraph will constitute "Excess Proceeds." When the aggregate amount of Excess Proceeds exceeds $20.0 million, the Company shall make an offer 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 any or redeem with the proceeds of sales of assets to purchase the maximum principal amount of Notes and such other pari passu Indebtedness that may be purchased out of the Company or Excess Proceeds. The offer price in any Restricted Subsidiary is made, such amount Asset Sale Offer will be deemed repaid equal to 100% of principal amount plus accrued and unpaid interest and Liquidated Damages, 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 such Excess Proceeds for any purpose not otherwise prohibited by this Indenture. If the aggregate principal amount of Notes and such 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 based on the principal amount of Notes and such other pari passu Indebtedness tendered. Upon completion of each Asset Sale Offer, the amount of Excess Proceeds shall 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 laws and regulations are applicable in connection with each repurchase of Notes pursuant to an Asset Sale Offer. To the amount extent that the provisions of such offerany securities laws or regulations conflict with the Asset Sales provisions of this Indenture, whether or the Company shall comply with the applicable securities laws and regulations and shall not accepted by the holders of such Indebtedness, and no Net Proceeds in the amount of such offer will be deemed to exist following have breached its obligations under the Asset Sale provisions of this Indenture by virtue of such offerconflict. The agreements governing the Company's outstanding Senior Debt currently prohibit the Company from purchasing any Notes, and (ii) if the holder also provides that certain change of any Indebtedness of a Restricted Subsidiary of control or asset sale events with respect to the Company declines would constitute a default under these agreements. Any future credit agreements or other agreements relating to Senior Debt to which the repayment Company becomes a party may contain similar restrictions and provisions. In the event a Change of such Indebtedness owed to it Control or Asset Sale occurs at a time when the Company is prohibited from such Net Proceeds such amount will be deemed repaid purchasing Notes, the Company could seek the consent of its senior lenders to the extent purchase of Notes or could attempt to refinance the declined Net Proceeds, or
(2) to make an Investment in (A) any one or more businesses, provided borrowings that contain such Investment in any business is in the form of the acquisition of Capital Stock that results in prohibition. If the Company does not obtain such a consent or any Restricted Subsidiaryrepay such borrowings, as the case may beCompany shall remain prohibited from purchasing Notes. In such case, owning an amount of the Capital Stock of such business such that such business constitutes a Restricted Subsidiary or increases the Company’s direct or indirect percentage ownership 's failure to purchase tendered Notes would constitute an Event of Default under this Indenture which would, in turn, constitute a default under such Senior Debt. In such circumstances, the Capital Stock subordination provisions in this Indenture would likely restrict payments to the Holders of a Restricted Subsidiary;Notes.
Appears in 1 contract
Asset Sales. (a) From and after the Completion Date, the The Company shall not consummatenot, and shall not permit any of its Restricted Subsidiaries to consummateSubsidiary to, cause, make or otherwise consummate an Asset Sale, unless:
(1) the Company or such Restricted Subsidiary, as the case may be, receives consideration at the time of such Asset Sale at least equal to the fair market value (as determined in good faith by the Company at the time of contractually agreeing to such Asset SaleCompany) of the assets sold or otherwise disposed ofof (notwithstanding the foregoing, the consideration received by the Company or any of its Restricted Subsidiaries from sales, transfers and other dispositions of Investments in joint ventures to the extent required by, or made pursuant to, customary buy/sell arrangements between the joint venture parties set forth in joint venture agreements and similar binding agreements, shall, in each case, be deemed to be fair market value for purposes of this Section 10.16(a)); and
(2) except in the case of a Permitted Asset Swap, if the property or assets sold or otherwise disposed of have a fair market value in excess of the greater of $375.0 million and 50.0% of LTM EBITDA for the most recently ended Test Period at the time of such disposition, at least 75.075% of the consideration therefor received by the Company or such Restricted Subsidiary, as the case may be, together with all other Asset Sales since the Issue Date on a cumulative basis, is in the form of cash or Cash Equivalents; provided that that, for purposes of this provision, each of the amount of:following will be deemed to be cash for purposes of this clause (2) and for no other purpose
(A) any liabilities, contingent liabilities (as shown on the Company’s or otherwise, a Restricted Subsidiary’s most recent balance sheet or in the notes thereto) of the Company or such any Restricted Subsidiary, Subsidiary (other than contingent liabilities and liabilities that are by their terms subordinated to the Notes or Notes) that are owed to the Company or a Restricted Subsidiary that (xi) are assumed by the transferee of any such assets (or a third party on behalf of the transferee) and as a result of which the Company or any such Restricted Subsidiary is no longer obligated with respect to such liabilities or are indemnified against further liabilities or (ii) retired, cancelled or otherwise terminated in connection with such transfer) or (y) are otherwise cancelled or terminated in connection with the transaction with such transferee (other than intercompany debt owed to the Company or its Restricted Subsidiaries) and, in each case, for which the Company and all of its Restricted Subsidiaries have been validly released,Asset Sale;
(B) any securities, notes or other obligations or assets received by the Company or such Restricted Subsidiary from such transferee that are converted by the Company or such Restricted Subsidiary into cash or Cash Equivalents (to the extent of the cash received) or Cash Equivalents received) within 180 days following the closing of such Asset Sale;; and
(C) Indebtedness of any Restricted Subsidiary that ceases to be a Restricted Subsidiary as a result of such Asset Sale (other than intercompany debt owed to the Company or any Restricted Subsidiary), to the extent that the Company and each other Restricted Subsidiary are released from any guarantee of payment of the principal amount of such Indebtedness in connection with such Asset Sale in accordance with the terms of this Indenture;
(D) consideration consisting of Indebtedness of the Issuers or a Guarantor (other than intercompany debt owed to the Company or any Restricted Subsidiary and other than Subordinated Indebtedness) received after the Issue Date from Persons who are not the Company, Holdings or any Restricted Subsidiary;
(E) any Designated Non-cash Noncash Consideration received by the Company or such Restricted Subsidiary in such Asset Sale having an aggregate fair market value, value (as determined in good faith by the Company), taken together with all other Designated Non-cash Noncash Consideration received pursuant to this clause (EC) that is at that time outstandinghas not previously been converted to cash, not to exceed the greater of (x) $225.0 50.0 million and 30.0(y) 2.5% of LTM EBITDA for the most recently ended Test Period Consolidated Total Assets at the time of the receipt of |US-DOCS\143900591.2|| such Designated Non-cash Consideration (Noncash Consideration, with the fair market value of each such item of Designated Non-cash Noncash Consideration being measured pursuant to this clause (E) at the Company’s option, either at the time of contractually agreeing to such Asset Sale or at the time received and, in either case, and without giving effect to subsequent changes in value); and
(F) any Investment, Capital Stock, assets, property or capital or other expenditure of the kind referred to in clauses (2) or (3) of Section 4.10(b) hereof shall be deemed to be Cash Equivalents for purposes of this provision and for no other purpose,.
(b) Within 540 days after Subject to the receipt of any Net Proceeds of any Asset Sale (Intercreditor Agreement, the “Proceeds Application Period”)Collateral Trust Agreement and the other Security Documents, the Company or such Restricted Subsidiary, at their option, may apply an amount equal to the Net Proceeds from such Asset Sale,
(1) to reduce, prepay, repay or purchase:
(A) to the extent such Net Proceeds are from an Asset Sale of Collateral, Obligations with Pari Passu Lien Priority (including the Senior Credit Facilities or any Refinancing Indebtedness in respect thereof but other than Indebtedness owed to the Company or any Restricted Subsidiary), and, in the case of revolving obligations, to correspondingly reduce commitments with respect thereto, provided that, to the extent either Issuer or any Restricted Subsidiary will so repay any such Indebtedness (other than the Notes), the Issuers shall reduce Obligations under the Notes on a pro rata basis by, at their option, (i) redeeming Notes as provided under Section 3.07 hereof (ii) purchasing Notes through open-market purchases or (iii) by making an offer (in accordance with the procedures set forth herein for an Asset Sale Offer) to all Holders to purchase their Notes at a purchase price equal to 100.0% of the principal amount thereof, plus the amount of accrued but unpaid interest, if any, on the principal amount of the Notes to be repurchased to the date of repurchase;
(B) to the extent such Net Proceeds resulted from an Asset Sale not consisting of Collateral, Obligations in respect of other Secured Indebtedness (which may include the Notes), and, in the case of revolving commitments, to correspondingly reduce commitments with respect thereto;
(C) Obligations in respect of the Notes or any other Indebtedness (other than Subordinated Indebtedness) of the Company or any Restricted Subsidiary, other than Indebtedness owed to the Company or any Restricted Subsidiary (and, in the case of revolving commitments, to correspondingly reduce commitments with respect thereto), provided that, to the extent either Issuer or any Restricted Subsidiary will so repay any such Indebtedness (other than the Notes), the Issuers will reduce Obligations under the Notes on a pro rata basis by, at their option, (i) redeeming Notes as provided under Section 3.07 hereof or (ii) by making an offer (in accordance with the procedures set forth herein for an Asset Sale Offer) to all Holders to purchase their Notes at a purchase price equal to 100.0% of the principal amount thereof, plus the amount of accrued but unpaid interest, if any, on the principal amount of the Notes to be repurchased to the date of repurchase; or |US-DOCS\143900591.2||
(D) Obligations in respect of Indebtedness of a Non-Guarantor Subsidiary, other than Indebtedness owed to the Company or another Restricted Subsidiary; provided, in the case of clauses (A) or (C) above, (i) if an offer to purchase any Indebtedness of the Company or any Restricted Subsidiary is made, such amount will be deemed repaid to the extent of the amount of such offer, whether or not accepted by the holders of such Indebtedness, and no Net Proceeds in the amount of such offer will be deemed to exist following such offer, and (ii) if the holder of any Indebtedness of a Restricted Subsidiary of the Company declines the repayment of such Indebtedness owed to it from such Net Proceeds such amount will be deemed repaid to the extent of the declined Net Proceeds, or
(2) 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 that results in the Company or any affected Restricted Subsidiary, as the case may be, owning within 365 days after the receipt of any Net Proceeds from any Asset Sale of Priority Fixed Assets Collateral may apply those Net Proceeds at its option:
(1) to acquire all or substantially all of the assets of, or any Capital Stock of, a Similar Business, if, after giving effect to any such acquisition, such Similar Business is owned by the Company or a Guarantor; provided that the assets (including Capital Stock) acquired with the Net Proceeds of a disposition of Collateral are pledged as Collateral as required and as provided under this Indenture and the Security Documents;
(2) to make capital expenditures on assets that constitute Priority Fixed Assets Collateral;
(3) to acquire other assets (including all or substantially all of the assets of, or any Capital Stock of, a Similar Business) that are subsequently pledged as Priority Fixed Assets Collateral and designated to the Collateral Trustee as such, and that are used or useful in a Similar Business or that replace the properties and assets that are the subject of such Asset Sale;
(4) to repay Notes (by redeeming pursuant to Section 11.01, making open market purchases at a price equal to or above 100% of the principal amount thereof or making an offer to all holders in accordance with the procedures set forth below for an Asset Sale Offer) and/or Priority Lien Notes Debt such that the amount of Priority Lien Notes Debt repaid does not exceed the product of (x) the quotient equal to the principal amount of Priority Lien Notes Debt then outstanding divided by the principal amount of Indenture Obligations and Priority Lien Notes Debt then outstanding, times (y) the Net Proceeds received from such sale of Priority Fixed Assets Collateral; and/or
(5) any combination of the foregoing.
(c) Within 365 days after the receipt of any Net Proceeds from an Asset Sale (other than from an Asset Sale of Priority Fixed Assets Collateral), the Company (or the applicable Restricted Subsidiary, as the case may be) may apply such Net Proceeds at its option:
(1) (A) in the case of Net Proceeds from any Asset Sales of assets that do not constitute Collateral, to repay Indebtedness of a Restricted Subsidiary that is not a Guarantor, other than obligations owed to the Company or another Restricted Subsidiary or (B) to repay (i) Permitted ABL Obligations (and, if applicable, to correspondingly reduce the commitments with respect thereto) or (ii) Priority Lien Notes Debt; provided that, in the case of this clause (ii), the Company shall equally and ratably reduce Indenture Obligations (based on the respective amount of outstanding Priority Lien Notes Debt and Indenture Obligations) as provided under Section 11.01 through open-market purchases or otherwise;
(2) to acquire all or substantially all of the assets of, or any Capital Stock of, another Similar Business, if, after giving effect to any such acquisition of Capital Stock, the Similar Business is or becomes a Restricted Subsidiary of the Company;
(3) to make capital expenditures;
(4) to acquire other assets that are used or useful in a Similar Business or that replace the properties and assets that are the subject of such Asset Sale; provided that the assets (including Capital Stock) acquired with the Net Proceeds of a disposition of Priority ABL Collateral are pledged as Collateral as required and as provided under this Indenture and the Security Documents (except to the extent the Lien thereon is released by the lenders under the ABL Facility); and/or
(5) any combination of the foregoing.
(d) Any Net Proceeds from any Asset Sale that are not invested or applied in accordance with the preceding paragraphs within 365 days from the date of the receipt of such Net Proceeds (it being understood that any portion of the Net Proceeds used to make an offer to purchase notes as described above shall be deemed to have been invested whether or not such offer is accepted) shall be deemed to constitute “Excess Proceeds.” When the aggregate amount of Excess Proceeds exceeds $15.0 million, the Company shall make an offer to all Holders and, if required by the terms of any Priority Lien Notes Debt, to the holders thereof (an “Asset Sale Offer”), to purchase the maximum aggregate principal amount of Notes and such Priority Lien Notes Debt that is in an amount equal to at least $2,000 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 (but not including) the date fixed for the closing of such offer, in accordance with the procedures set forth in this Indenture. The Company shall commence an Asset Sale Offer with respect to Excess Proceeds within 15 Business Days after the date that Excess Proceeds exceed $15.0 million by mailing or electronically sending the notice required pursuant to the terms of this Indenture, with a copy to the Trustee. The Company 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 365 days (or such longer period provided above) or with respect to Excess Proceeds of $15.0 million or less.
(e) Notwithstanding the foregoing, (i) to the extent that any or all of the Net Proceeds of any Asset Sale by a Foreign Subsidiary (a “Foreign Disposition”) are prohibited or delayed by applicable local law from being repatriated to the United States, the amount equal to the portion of such Net Proceeds so affected will not be required to be applied in compliance with this covenant, and such amounts may be retained by the applicable Foreign Subsidiary so long, but only so long, as the applicable local law will not permit repatriation to the United States (the Company hereby agreeing to use reasonable efforts to cause the applicable Foreign Subsidiary to take all actions reasonably required by the applicable local law to permit such repatriation), and if such repatriation of any of such affected Net Proceeds is permitted under the applicable local law, an amount equal to such Net Proceeds permitted to be repatriated will be applied (whether or not repatriation actually occurs) in compliance with this covenant (net of any additional taxes that are or would be payable or reserved against as a result thereof) and (ii) to the extent that the Company has determined in good faith that repatriation of any or all of the Net Proceeds of any Foreign Disposition could have a material adverse tax consequence (which for the avoidance of doubt, includes, but is not limited to, any purchase whereby doing so the Company, any Restricted Subsidiary or any of their Affiliates and/or equity partners would incur a material tax liability, including as a result of a material deemed dividend pursuant to Code Section 956 or material withholding tax), the amount equal to the Net Proceeds so affected will not be required to be applied in compliance with this covenant.
(f) To the extent that the aggregate amount of Notes and such Priority Lien Notes Debt tendered pursuant to an Asset Sale Offer is less than the Excess Proceeds, the Company may use any remaining Excess Proceeds for any purpose not prohibited by this Indenture. If the aggregate principal amount of Notes or Priority Lien Notes Debt surrendered by such holders thereof exceeds the amount of Excess Proceeds, the Trustee shall select, or cause to be selected, the Notes and the Company shall select, or cause to be selected such Priority Lien Notes Debt to be purchased on a pro rata basis based on the accreted value or principal amount of the Capital Stock Notes or such Priority Lien Notes Debt tendered. Upon completion of any such Asset Sale Offer, the amount of Excess Proceeds related to such Asset Sale Offer shall be reset at zero 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 Proceeds the Company is offering to apply in such Asset Sale Offer shall be excluded in subsequent calculations of Excess Proceeds.
(g) Pending the final application of any Net Proceeds pursuant to this Section 10.16, the Company or the applicable Restricted Subsidiary may apply such Net Proceeds temporarily to reduce Indebtedness outstanding under a revolving credit facility or otherwise invest such Net Proceeds in any manner not prohibited by this Indenture.
(h) 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 laws or regulations are applicable in connection with the repurchase of Notes pursuant to an Asset Sale Offer. To the extent that the provisions of any securities laws or regulations conflict with the provisions of this Indenture, the Company shall comply with the applicable securities laws and regulations and shall not be deemed to have breached its obligations set forth in this Indenture by virtue thereof.
(i) If the Company is repurchasing less than all of the Notes at any time, the Company shall select the Notes to be repurchased (a) if the Notes are listed on any national securities exchange, in compliance with the requirements of the principal national securities exchange on which such Notes are listed or (b) if such Notes are not so listed, on a pro rata basis to the extent practicable; provided that no Notes of $2,000 or less shall be repurchased in part.
(j) Within 30 days after the Company becomes obligated to make an Asset Sale Offer, the Company shall send notice of that Asset Sale Offer electronically or by first class mail, with a copy to the Trustee, to each Holder to the address of that Holder appearing in the security register with the following information:
(1) that an Asset Sale Offer is being made pursuant to this Section 10.16, the total amount of the Asset Sale Offer, and that all Notes properly tendered pursuant to the Asset Sale Offer shall be accepted for payment, subject to prorating if the aggregate principal amount of Notes tendered is greater than the amount of the Asset Sale Offer, as contemplated by Section 10.16(b);
(2) the purchase price and the purchase date, which shall be no earlier than 30 days nor later than 60 days from the date such notice is provided (the “Asset Sale Payment Date”);
(3) any Note not properly tendered shall remain outstanding and continue to accrue interest;
(4) unless the Company defaults in the payment of the Asset Sale Offer, all Notes accepted for payment pursuant to the Asset Sale Offer shall cease to accrue interest on the Asset Sale Payment Date;
(5) Holders electing to have any Notes purchased pursuant to an Asset Sale Offer shall be required to surrender the Notes, with the form entitled “Option of Holder to Elect Purchase” on the reverse of the Notes completed, to the Paying Agent specified in the notice at the address specified in the notice prior to the close of business on the third Business Day preceding the Asset Sale Payment Date;
(6) Holders shall be entitled to withdraw their tendered Notes and their election to require the Company to purchase such Notes; provided that the Paying Agent receives, not later than the close of business on the last day of the offer period, a telegram, telex, facsimile transmission or letter setting forth the name of the Holder, the principal amount of Notes tendered for purchase, and a statement that such business constitutes Holder is withdrawing its tendered Notes and its election to have such Notes purchased; and
(7) Holders whose Notes are being purchased only in part shall be issued new Notes equal in principal amount to the unpurchased portion of the Notes surrendered, which unpurchased portion must be equal to $2,000 or an integral multiple of $1,000 in excess thereof.
(k) While the Notes are in global form and the Company makes an Asset Sale Offer, a Restricted Subsidiary Holder may exercise its option to elect for the purchase of the Notes through the facilities of DTC, subject to its rules and regulations.
(l) On the Asset Sale Payment Date, the Company shall, to the extent permitted by law,
(1) accept for payment all Notes or increases portions thereof properly tendered pursuant to the Asset Sale Offer,
(2) deposit with the Paying Agent an amount equal to the aggregate payment of the Asset Sale Offer, and
(3) deliver, or cause to be delivered, to the Trustee for cancellation the Notes so accepted together with an Officer’s Certificate stating that such Notes or portions thereof have been tendered to and purchased by the Company’s direct or indirect percentage ownership .
(m) The Paying Agent shall promptly transmit to each Holder the payment for such Notes in respect of the Capital Stock Asset Sale Offer, and the Trustee shall promptly authenticate and cause to be delivered to each Holder a new Note equal in principal amount to any unpurchased portion of the Notes surrendered, if any; provided that each such new Note shall be in a Restricted Subsidiary;principal amount of $2,000 or an integral multiple of $1,000 in excess thereof. The Company shall publicly announce the results of the Asset Sale Offer on or as soon as practicable after the Asset Sale Payment Date. The Paying Agent, if not the Company, shall return to the Company any cash that remains unclaimed, together with interest, if any, there
Appears in 1 contract
Sources: Indenture (Winnebago Industries Inc)
Asset Sales. (a) From and after the Completion Effective Date, the Company Holdings shall not consummatenot, and shall not permit any of its Restricted Subsidiaries to Subsidiary to, consummate, directly or indirectly, an Asset Sale, Sale unless:
(1) the Company Holdings or such Restricted Subsidiary, as the case may be, receives consideration at the time of such Asset Sale at least equal to the fair market value (as determined in good faith by the Company measured at the time of contractually agreeing to such Asset Sale) of the assets sold or otherwise disposed of; and
(2) except in the case of a Permitted Asset Swap, if the property or assets sold or otherwise disposed of have a fair market value in excess at least 75% of the greater of $375.0 million and 50.0% of LTM EBITDA for the most recently ended Test Period consideration (measured at the time of agreeing to such dispositionAsset Sale) for such Asset Sale, at least 75.0% of together with all other Asset Sales since the consideration therefor Effective Date (on a cumulative basis), received by the Company Holdings or such Restricted Subsidiary, as the case may be, is in the form of cash or Cash Equivalents; provided that the amount of:
(A) any liabilities, contingent or otherwise, of the Company or such Restricted Subsidiary, other than liabilities that are by their terms subordinated to the Notes or that are owed to the Company or a Restricted Subsidiary that (x) are assumed by the transferee of any such assets (or a third party in connection with such transfer) or (y) are otherwise cancelled or terminated in connection with the transaction with such transferee (other than intercompany debt owed to the Company or its Restricted Subsidiaries) and, in each case, for which the Company and all of its Restricted Subsidiaries have been validly released,
(B) any securities, notes or other obligations or assets received by the Company or such Restricted Subsidiary from such transferee that are converted by the Company or such Restricted Subsidiary into cash or Cash Equivalents (to the extent of the cash or Cash Equivalents received) within 180 days following the closing of such Asset Sale;
(C) Indebtedness of any Restricted Subsidiary that ceases to be a Restricted Subsidiary as a result of such Asset Sale (other than intercompany debt owed to the Company or any Restricted Subsidiary), to the extent that the Company and each other Restricted Subsidiary are released from any guarantee of payment of the principal amount of such Indebtedness in connection with such Asset Sale in accordance with the terms of this Indenture;
(D) consideration consisting of Indebtedness of the Issuers or a Guarantor (other than intercompany debt owed to the Company or any Restricted Subsidiary and other than Subordinated Indebtedness) received after the Issue Date from Persons who are not the Company, Holdings or any Restricted Subsidiary;
(E) any Designated Non-cash Consideration received by the Company or such Restricted Subsidiary in such Asset Sale having an aggregate fair market value, as determined by the Company, taken together with all other Designated Non-cash Consideration received pursuant to this clause (E) that is at that time outstanding, not to exceed the greater of $225.0 million and 30.0% of LTM EBITDA for the most recently ended Test Period at the time of the receipt of |US-DOCS\143900591.2|| such Designated Non-cash Consideration (with the fair market value of each such item of Designated Non-cash Consideration being measured pursuant to this clause (E) at the Company’s option, either at the time of contractually agreeing to such Asset Sale or at the time received and, in either case, without giving effect to subsequent changes in value); and
(F) any Investment, Capital Stock, assets, property or capital or other expenditure of the kind referred to in clauses (2) or (3) of Section 4.10(b) hereof shall be deemed to be Cash Equivalents for purposes of this provision and for no other purpose.
(b) Within 540 450 days after the later of (A) the date of any Asset Sale and (B) the receipt of any Net Proceeds of from any Asset Sale (the “Asset Sale Proceeds Application Period”), the Company Holdings or such Restricted Subsidiary, at their its option, may apply an amount equal to the Net Proceeds from such Asset Sale,
(1) to reducerepay (i) Obligations under the Senior Notes and any Additional Notes, prepay, repay or purchase:
(Aii) Obligations under Secured Indebtedness incurred pursuant to a Credit Facility to the extent such Net Proceeds are from Obligations were incurred or outstanding under clause (1) of Section 4.09(b) and/or (iii) Obligations under any other Secured Indebtedness, and in each case, in the case of revolving obligations, to correspondingly reduce commitments with respect thereto;
(2) to repay Obligations under any Senior Indebtedness (other than any Senior Indebtedness referred to in clause (1) above), and in the case of revolving obligations, to correspondingly reduce commitments with respect thereto; provided that Holdings or such Restricted Subsidiary will either (A) reduce the aggregate principal amount of Obligations under the Senior Notes on an equal or ratable basis with any Senior Indebtedness repaid pursuant to this clause (2) by, at its option, (x) redeeming Senior Notes and any Additional Notes as described in Section 3.07 and/or (y) purchasing Senior Notes and any Additional Notes through open-market purchases or in privately negotiated transactions at market prices (which may be below par) and/or (B) make an offer (in accordance with Section 3.09) to all Holders to purchase their Senior Notes and any Additional Notes on an equal or ratable basis with any Senior Indebtedness repaid pursuant to this clause (2) (which offer shall be deemed to be an Asset Sale Offer for purposes hereof);
(3) to invest in the business of CollateralHoldings and its Subsidiaries, Obligations with Pari Passu Lien Priority including (including i) any investment in Additional Assets and (ii) making capital expenditures;
(4) to repay Indebtedness of any Restricted Subsidiary that is not a Guarantor (excluding the Senior Credit Facilities or any Refinancing Indebtedness in respect thereof but Issuers), other than Indebtedness owed to the Company an Issuer or any Restricted Subsidiary)a Guarantor, and, in the case of revolving obligations, to correspondingly reduce commitments with respect thereto, ; or
(5) any one or more combinations of the foregoing; provided that, in the case of clause (3) above, any agreement shall be treated as a permitted application of the Net Proceeds from the date of such agreement so long as Holdings or such Restricted Subsidiary enters into such agreement with the good faith expectation that such Net Proceeds will be applied to satisfy such agreement within 180 days of the expiration of the Asset Sale Proceeds Application Period (an “Acceptable Commitment”) and such Net Proceeds are actually applied substantially in such manner within 180 days of the expiration of the Asset Sale Proceeds Application Period (the period from the consummation of the Asset Sale to such date, the “First Commitment Application Period”), and, in the event any Acceptable Commitment is later cancelled or terminated for any reason after the expiration of the Asset Sale Proceeds Application Period and before the Net Proceeds are applied in connection therewith, then such Net Proceeds shall constitute Excess Proceeds unless Holdings or such Restricted Subsidiary reasonably intends to enter into another Acceptable Commitment prior to the extent either Issuer expiration of the First Commitment Application Period (a “Second Commitment”) and such Net Proceeds are actually applied substantially in such manner prior to 180 days from the date of entering into the Second Commitment; provided, further, that if any Second Commitment is cancelled or terminated for any Restricted Subsidiary reason before such Net Proceeds are applied or if the date of such Second Commitment is not prior to the date of the expiration of the First Commitment Application Period then such Net Proceeds shall constitute Excess Proceeds.
(c) Any Net Proceeds from the Asset Sale covered by this Section 4.10 that are not invested or applied as provided and within the time period set forth in Section 4.10(b) will so repay be deemed to constitute “Excess Proceeds”; provided that any amount of Net Proceeds offered to Holders of the Senior Notes pursuant to clauses (1)(i) and (2) of the second preceding paragraph shall not be deemed to be Excess Proceeds without regard to whether such Indebtedness (other offer is accepted by any Holders. No later than 30 Business Days after the Notes)date that the aggregate amount of Excess Proceeds, after giving effect to the operation of the immediately following sentence, exceeds $200.0 million, the Issuers shall reduce Obligations under the Notes on a pro rata basis by, at their option, (i) redeeming Notes as provided under Section 3.07 hereof (ii) purchasing Notes through open-market purchases or (iii) by making make an offer (to purchase to all Holders and, if required by the terms of other Indebtedness that is pari passu in accordance right of payment with the procedures set forth herein for Senior Notes (“Pari Passu Indebtedness”), to repay or offer to repay such Pari Passu Indebtedness (an “Asset Sale Offer”) to all Holders to purchase their the maximum aggregate principal amount (or accreted value, as applicable) of the Senior Notes at a purchase price and such Pari Passu Indebtedness (in the case of the Senior Notes only, equal to 100.0$1,000 or an integral multiple thereof) that may be purchased or repaid out of the Excess Proceeds (at an offer price in cash in the case of the Senior Notes in an amount equal to 100% of the principal amount thereof, plus the amount of accrued but and unpaid interest, if any, on to, but excluding, the principal amount date fixed for the repurchase of the Senior Notes pursuant to be repurchased to the date of repurchase;
(Bsuch offer) to the extent such Net Proceeds resulted from an Asset Sale not consisting of Collateral, Obligations in respect of other Secured Indebtedness (which may include the Notes), and, in the case of revolving commitments, to correspondingly reduce commitments with respect thereto;
(C) Obligations in respect of the Notes or any other Indebtedness (other than Subordinated Indebtedness) of the Company or any Restricted Subsidiary, other than Indebtedness owed to the Company or any Restricted Subsidiary (and, in the case of revolving commitments, to correspondingly reduce commitments with respect thereto), provided that, to the extent either Issuer or any Restricted Subsidiary will so repay any such Indebtedness (other than the Notes), the Issuers will reduce Obligations under the Notes on a pro rata basis by, at their option, (i) redeeming Notes as provided under Section 3.07 hereof or (ii) by making an offer (in accordance with the procedures set forth herein for in this Indenture and, if applicable, the documents governing the applicable Pari Passu Indebtedness. Notwithstanding the foregoing, the Issuers shall only be required to make an Asset Sale OfferOffer with (i) to all Holders to purchase their Notes at a purchase price equal to 100.050% of the Excess Proceeds if the Consolidated Secured Debt Ratio of Holdings for the Applicable Measurement Period is less than or equal to 3.25 to 1.0 but greater than 2.25 to 1.0 or (ii) 0% of the Excess Proceeds if the Consolidated Secured Debt Ratio of Holdings for the Applicable Measurement Period is less than or equal to 2.25 to 1.0, in each case after giving effect to any application of any Net Proceeds as set forth in this Section 4.10, including making an offer to repurchase a portion of the Senior Notes (any Excess Proceeds not required to be offered in an Asset Sale Offer in reliance on this sentence shall constitute “Leverage Excess Proceeds”). With respect to the Senior Notes only, the Issuers shall commence an Asset Sale Offer by sending the notice required pursuant to the terms of this Indenture, with a copy to the Trustee. The Issuers may satisfy the foregoing obligation with respect to such Net Proceeds from an Asset Sale by making an Asset Sale Offer in advance of being required to do so by this Indenture (an “Advance Offer”) with respect to all or part of the available Net Proceeds (the “Advance Portion”).
(d) To the extent that the aggregate principal amount thereof(or accreted value, plus the amount as applicable) of accrued but unpaid interestSenior Notes and, if anyapplicable, on Pari Passu Indebtedness, tendered, purchased or repaid pursuant to an Asset Sale Offer is less than the principal amount of the Notes to be repurchased to the date of repurchase; or |US-DOCS\143900591.2||
Excess Proceeds (D) Obligations in respect of Indebtedness of a Non-Guarantor Subsidiary, other than Indebtedness owed to the Company or another Restricted Subsidiary; providedor, in the case of clauses an Advance Offer, the Advance Portion), the Issuers may use any remaining Excess Proceeds (Aor, in the case of an Advance Offer, the Advance Portion) (“Declined Proceeds”) in any manner permitted or not prohibited by this Indenture. If the aggregate principal amount (Cor accreted value, as applicable) aboveof Senior Notes or the Pari Passu Indebtedness tendered, (i) if purchased or repaid, pursuant to an offer to purchase any Indebtedness of the Company or any Restricted Subsidiary is made, such amount will be deemed repaid to the extent of Asset Sale Offer exceeds the amount of such offerExcess Proceeds (or, whether in the case of an Advance Offer, the Advance Portion), the Trustee shall select the Senior Notes (subject to applicable DTC procedures as to Global Notes) and the Issuers or not accepted by the holders representative of such Indebtedness, and no Net Proceeds in Pari Passu Indebtedness shall select such Pari Passu Indebtedness to be purchased or repaid on a pro rata basis based on the accreted value or principal amount of the Senior Notes and such offer will be deemed to exist following such offerPari Passu Indebtedness tendered, and (ii) if the holder of any Indebtedness of a Restricted Subsidiary of the Company declines the repayment of such Indebtedness owed to it from such Net Proceeds such amount will be deemed repaid to the extent of the declined Net Proceedspurchased or repaid, or
(2) to make an Investment in (A) any one with adjustments as necessary so that no Senior Notes or more businesses, provided that such Investment in any business is in the form of the acquisition of Capital Stock that results in the Company or any Restricted SubsidiaryPari Passu Indebtedness, as the case may be, owning will be repurchased in an unauthorized denomination; provided that no Senior Notes of $2,000 or less shall be repurchased in part. Upon completion of any such Asset Sale Offer, the amount of Excess Proceeds shall be reset at zero (regardless of whether there are any remaining Excess Proceeds upon such completion), and in the case of an Advance Offer, the Advance Portion shall be excluded in subsequent calculations of Excess Proceeds.
(e) An Asset Sale Offer or an Advance Offer may be made at the same time as consents are solicited with respect to an amendment, supplement or waiver of this Indenture, Senior Notes and/or Guarantees (but the Asset Sale Offer or Advance Offer may not condition tenders on the delivery of such consents).
(f) Pending the final application of an amount equal to the Net Proceeds pursuant to this Section 4.10, the holder of such Net Proceeds may apply any Net Proceeds to reduce indebtedness outstanding under a revolving credit facility (including under the Senior Credit Facilities) or otherwise invest such Net Proceeds in any manner permitted or not prohibited by this Indenture.
(g) For purposes of this Section 4.10 only, the following shall be deemed to be cash or Cash Equivalents:
(1) the greater of the principal amount and the carrying value of any liabilities (as reflected on the most recent balance sheet of Holdings or such Restricted Subsidiary or in the footnotes thereto, or if incurred, accrued or increased subsequent to the date of such balance sheet, such liabilities that would have been reflected on the balance sheet of Holdings or such Restricted Subsidiary or in the footnotes thereto if such incurrence, accrual or increase had taken place on or prior to the date of such balance sheet, as determined in good faith by Holdings) of Holdings or such Restricted Subsidiary, other than liabilities that are by their terms subordinated to the Senior Notes, that are assumed, prepaid or repaid by the transferee of any such assets (or are otherwise extinguished in connection with the transactions relating to such Asset Sale) pursuant to a written agreement which releases or indemnifies Holdings or such Restricted Subsidiary from such liabilities (it being agreed that any reduction in liabilities that would otherwise have been owed (in the good faith judgment of Holdings) by Holdings or any Restricted Subsidiary to a Sports Partner if not for a disposition pursuant to clause (v) of the definition of “Asset Sale” shall be deemed to be cash for purposes of this Section 4.10;
(2) any securities, notes or other obligations or assets received by Holdings or such Restricted Subsidiary from such transferee that are converted by Holdings 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 or Cash Equivalents received), in each case, within 180 days following the closing of such Asset Sale; and
(3) any Designated Non-cash Consideration received by Holdings or such Restricted Subsidiary in such Asset Sale having an aggregate fair market value (with the fair market value of such item of Designated Non-cash Consideration being measured at the date of agreement for the related Asset Sale) and without giving effect to subsequent changes in value, taken together with all other Designated Non-cash Consideration received pursuant to this clause (3) that is at that time outstanding, not to exceed the greater of (a) $450.0 million and (b) 5.0% of the Total Assets of Holdings and its Restricted Subsidiaries at the time of agreeing to such Asset Sale.
(h) The Issuers shall comply with the requirements of Rule 14e‑1 under the Exchange Act and any other securities laws and regulations thereunder to the extent such laws or regulations are applicable in connection with the repurchase of the Senior Notes pursuant to an Asset Sale Offer. To the extent that the provisions of any securities laws or regulations conflict with this Section 4.10, the Issuers shall comply with the applicable securities laws and regulations and shall not be deemed to have breached its obligations under this Section 4.10 by virtue of such compliance.
(i) The provisions of Section 3.09 and this Section 4.10 relating to the Issuers’ obligation to make an offer to repurchase the Senior Notes as a result of an Asset Sale may be waived or modified with the written consent of the Holders of a majority in principal amount of the Capital Stock of such business such that such business constitutes a Restricted Subsidiary or increases the Company’s direct or indirect percentage ownership of the Capital Stock of a Restricted Subsidiary;Senior Notes.
Appears in 1 contract
Asset Sales. (a) From and after the Completion Date, the The Company shall not consummatenot, and shall not ------------ permit any of its Restricted Subsidiaries to consummateto, engage in or consummate an Asset Sale, unless:
Sale unless (1i) the Company (or such the Restricted Subsidiary, as the case may be, ) receives consideration at the time of such Asset Sale at least equal to the fair market value (as determined in good faith by the Company at the time of contractually agreeing to such Asset Sale) of the assets sold or otherwise disposed of; and
of (2) except as determined by the Board of Directors in the case of good faith, whose determination shall be conclusive evidence thereof and shall be evidenced by a Permitted Asset Swap, if the property or assets sold or otherwise disposed of have a fair market value in excess resolution of the greater Board of $375.0 million Directors set forth in an Officers' Certificate delivered to the Trustee) and 50.0% of LTM EBITDA for the most recently ended Test Period at the time of such disposition, (ii) at least 75.075% of the consideration therefor thereof received by the Company or such Restricted Subsidiary, as the case may be, Subsidiary is in the form of cash or Cash EquivalentsEquivalents other than in the case where the Company or such Restricted Subsidiary is undertaking a Permitted Asset Swap; provided that the amount of:
of (Ax) any liabilities, contingent liabilities (as shown on the Company's or otherwisesuch Restricted Subsidiary's most recent balance sheet), of the Company or such any Restricted Subsidiary, Subsidiary (other than contingent liabilities and liabilities that are by their terms subordinated to the Notes Securities or any Guarantee thereof) that are owed to the Company or a Restricted Subsidiary that (x) are assumed by the transferee of any such assets (or pursuant to a third party in connection with such transfer) or (y) are otherwise cancelled or terminated in connection with the transaction with such transferee (other than intercompany debt owed to customary agreement that releases the Company or its such Restricted Subsidiaries) and, in each case, for which the Company Subsidiary from further liability and all of its Restricted Subsidiaries have been validly released,
(By) any securities, notes or other obligations or assets received by the Company or any such Restricted Subsidiary from such transferee that are converted within 15 days by the Company or such Restricted Subsidiary into cash or Cash Equivalents (to the extent of the cash or Cash Equivalents received) within 180 days following the closing of such Asset Sale;
(C) Indebtedness of any Restricted Subsidiary that ceases to be a Restricted Subsidiary as a result of such Asset Sale (other than intercompany debt owed to the Company or any Restricted Subsidiary), to the extent that the Company and each other Restricted Subsidiary are released from any guarantee of payment of the principal amount of such Indebtedness in connection with such Asset Sale in accordance with the terms of this Indenture;
(D) consideration consisting of Indebtedness of the Issuers or a Guarantor (other than intercompany debt owed to the Company or any Restricted Subsidiary and other than Subordinated Indebtedness) received after the Issue Date from Persons who are not the Company, Holdings or any Restricted Subsidiary;
(E) any Designated Non-cash Consideration received by the Company or such Restricted Subsidiary in such Asset Sale having an aggregate fair market value, as determined by the Company, taken together with all other Designated Non-cash Consideration received pursuant to this clause (E) that is at that time outstanding, not to exceed the greater of $225.0 million and 30.0% of LTM EBITDA for the most recently ended Test Period at the time of the receipt of |US-DOCS\143900591.2|| such Designated Non-cash Consideration (with the fair market value of each such item of Designated Non-cash Consideration being measured pursuant to this clause (E) at the Company’s option, either at the time of contractually agreeing to such Asset Sale or at the time received and, in either case, without giving effect to subsequent changes in value); and
(F) any Investment, Capital Stock, assets, property or capital or other expenditure of the kind referred to in clauses (2) or (3) of Section 4.10(b) hereof shall be deemed to be Cash Equivalents cash for purposes of this provision and for no other purpose.
(b) provision. Within 540 360 days after the receipt of any Net Proceeds of any from an Asset Sale (the “Proceeds Application Period”)Sale, the Company or its Restricted Subsidiaries may apply such Restricted SubsidiaryNet Proceeds, at their its option, may apply an amount equal to the Net Proceeds from such Asset Sale,
(1a) to reducepermanently reduce Senior Debt, prepay, repay or purchase:
(Ab) to the extent such Net Proceeds are from an Asset Sale investment in, or the making of Collaterala capital expenditure or the acquisition of, Obligations with Pari Passu Lien Priority (including other property or assets in each case used or useable in a Permitted Business, or Capital Stock of any Person primarily engaged in a Permitted Business if, as a result of the Senior Credit Facilities investment in or any Refinancing Indebtedness in respect thereof but other than Indebtedness owed to acquisition by the Company or any Restricted Subsidiary thereof, such Person becomes a Restricted Subsidiary, or (c) a combination of the uses described in clauses (a) and (b). Pending the final application of any such Net Proceeds, the Company or 37 its Restricted Subsidiaries may temporarily reduce Senior Debt or otherwise invest such Net Proceeds in any manner that is not prohibited by this Indenture. Any Net Proceeds from Asset Sales (including any Net Proceeds from Asset Sales that were not applied or invested in accordance with the second paragraph of Section 4.10 of the 1998 Notes Indenture prior to the Closing Date or used to make an Asset Sale Offer), and, that are not applied or invested as provided in the case first sentence of revolving obligationsthis paragraph within the 360-day period after receipt of such Net Proceeds will be deemed to constitute "Excess Proceeds." When the aggregate amount of Excess Proceeds exceeds $10.0 million (an "Asset Sale Offering Triggering Event"), the Company will be required to correspondingly reduce commitments with respect thereto, provided thatmake an offer to all Holders of Securities and, to the extent either Issuer or required by the terms of any Restricted Subsidiary will so repay Pari Passu Indebtedness to all holders of such Pari Passu Indebtedness (an "Asset Sale Offer") to purchase the maximum principal amount of Securities and any such Pari Passu Indebtedness (other than that may be purchased out of the Notes), the Issuers shall reduce Obligations under the Notes on a pro rata basis byExcess Proceeds, at their option, (i) redeeming Notes as provided under Section 3.07 hereof (ii) purchasing Notes through open-market purchases or (iii) by making an offer (price in cash in an amount equal to 100% of the principal amount thereof plus accrued and unpaid interest and Liquidated Damages thereon, if any, to the date of purchase, in accordance with the procedures set forth herein for in Section 3.09 hereof or such Pari Passu Indebtedness, as applicable. To the extent that the aggregate principal amount of Securities and any such Pari Passu Indebtedness tendered pursuant to an Asset Sale Offer) to all Holders to purchase their Notes at a purchase price equal to 100.0% of Offer is less than the Excess Proceeds, the Company or its Restricted Subsidiaries may use any remaining Excess Proceeds for general corporate purposes. If the aggregate principal amount thereof, plus of Securities and any such Pari Passu Indebtedness surrendered by holders thereof exceeds the amount of accrued but unpaid interestExcess Proceeds, if any, on the principal amount of Trustee shall select the Notes Securities to be repurchased to the date of repurchase;
(B) to the extent such Net Proceeds resulted from an Asset Sale not consisting of Collateral, Obligations in respect of other Secured Indebtedness (which may include the Notes), and, in the case of revolving commitments, to correspondingly reduce commitments with respect thereto;
(C) Obligations in respect of the Notes or any other Indebtedness (other than Subordinated Indebtedness) of the Company or any Restricted Subsidiary, other than Indebtedness owed to the Company or any Restricted Subsidiary (and, in the case of revolving commitments, to correspondingly reduce commitments with respect thereto), provided that, to the extent either Issuer or any Restricted Subsidiary will so repay any such Indebtedness (other than the Notes), the Issuers will reduce Obligations under the Notes purchased on a pro rata basis by, at their option, (i) redeeming Notes as provided under Section 3.07 hereof or (ii) by making an offer (in accordance with the procedures set forth herein for an basis. Upon completion of such Asset Sale Offer) to all Holders to purchase their Notes at a purchase price equal to 100.0% of the principal amount thereof, plus the amount of accrued but unpaid interest, if any, on the principal amount of the Notes to Excess Proceeds shall be repurchased to the date of repurchase; or |US-DOCS\143900591.2||
(D) Obligations in respect of Indebtedness of a Non-Guarantor Subsidiary, other than Indebtedness owed to the Company or another Restricted Subsidiary; provided, in the case of clauses (A) or (C) above, (i) if an offer to purchase any Indebtedness of the Company or any Restricted Subsidiary is made, such amount will be deemed repaid to the extent of the amount of such offer, whether or not accepted by the holders of such Indebtedness, and no Net Proceeds in the amount of such offer will be deemed to exist following such offer, and (ii) if the holder of any Indebtedness of a Restricted Subsidiary of the Company declines the repayment of such Indebtedness owed to it from such Net Proceeds such amount will be deemed repaid to the extent of the declined Net Proceeds, or
(2) 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 that results in the Company or any Restricted Subsidiary, as the case may be, owning an amount of the Capital Stock of such business such that such business constitutes a Restricted Subsidiary or increases the Company’s direct or indirect percentage ownership of the Capital Stock of a Restricted Subsidiary;reset at zero.
Appears in 1 contract
Sources: Indenture (Advance Auto Parts Inc)
Asset Sales. (a) From and after the Completion Date, the The Company shall not consummatewill not, and shall will not permit any of its Restricted Subsidiaries to consummateto, consummate an Asset Sale, Sale unless:
(1) the Company (or such 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 determined in good faith by of the Company at date of the time of contractually agreeing definitive agreement with respect to such Asset Sale) of the assets or Equity Interests issued or sold or otherwise disposed of; and
(2) except in the case of a Permitted Asset Swap, if the property or assets sold or otherwise disposed of have a fair market value in excess of the greater of $375.0 million and 50.0% of LTM EBITDA for the most recently ended Test Period at the time of such disposition, at least 75.075% of the consideration therefor received in the Asset Sale by the Company or such Restricted Subsidiary, as the case may be, Subsidiary is in the form of cash or Cash Equivalents; , provided that this requirement shall not apply to an Asset Sale in respect of non-operating mining assets. For purposes of this provision, each of the amount offollowing will be deemed to be cash:
(A) any liabilities, contingent or otherwiseas shown on the Company’s most recent consolidated balance sheet, of the Company or such any Restricted Subsidiary, Subsidiary (other than contingent liabilities and liabilities that are by their terms subordinated to the Notes or any Note Guarantee) that are owed to the Company or a Restricted Subsidiary that (x) are assumed by the transferee of any such assets (pursuant to a customary novation or a third party in connection with such transfer) or (y) are otherwise cancelled or terminated in connection with the transaction with such transferee (other than intercompany debt owed to indemnity agreement that releases the Company or its such Restricted Subsidiaries) and, in each case, for which the Company and all of its Restricted Subsidiaries have been validly released,Subsidiary from or indemnifies against further liability;
(B) any securities, notes or other obligations or assets received by the Company or any such Restricted Subsidiary from such transferee that are contemporaneously, subject to ordinary settlement periods, converted by the Company or such Restricted Subsidiary into cash or Cash Equivalents (cash, to the extent of the cash or Cash Equivalents received) within 180 days following the closing of such Asset Salereceived in that conversion;
(C) Indebtedness of any Restricted Subsidiary that ceases to be a Restricted Subsidiary as a result of such Asset Sale (other than intercompany debt owed to the Company or any Restricted Subsidiary), to the extent that the Company and each other Restricted Subsidiary are released from any guarantee of payment of the principal amount of such Indebtedness in connection with such Asset Sale in accordance with the terms of this Indenture;
(D) consideration consisting of Indebtedness of the Issuers or a Guarantor (other than intercompany debt owed to the Company or any Restricted Subsidiary and other than Subordinated Indebtedness) received after the Issue Date from Persons who are not the Company, Holdings or any Restricted Subsidiary;
(E) any Designated Non-cash Consideration received by the Company or such any of its Restricted Subsidiary Subsidiaries in such Asset Sale having an aggregate fair market value, as determined by the CompanyFair Market Value, taken together with all other Designated Non-cash Consideration received pursuant to this clause (EC) that is at that time outstanding, not to exceed the greater of (x) $225.0 75.0 million and 30.0(y) 5.00% of LTM EBITDA for the most recently ended Test Period Consolidated Total Assets at the time of the receipt of |US-DOCS\143900591.2|| such Designated Non-cash Consideration (with the fair market value Fair Market Value of each such item of Designated Non-cash Consideration being measured pursuant to this clause (E) at the Company’s option, either at the time of contractually agreeing to such Asset Sale or at the time received and, in either case, and without giving effect to subsequent changes in value); and
(FD) any Investment, Capital Stock, assets, property stock or capital or other expenditure assets of the kind referred to in clauses (23) or (35) of Section 4.10(b) hereof shall be deemed to be Cash Equivalents for purposes the next paragraph of this provision and for no other purposeSection 4.10.
(b) Within 540 365 days after the receipt of any Net Proceeds of any from an Asset Sale (the “Proceeds Application Period”)Sale, the Company (or such the applicable Restricted Subsidiary, at their option, as the case may be) may apply an amount equal to the such Net Proceeds from such Asset Sale,Proceeds:
(1) to reduce, prepay, repay or purchase:Indebtedness that is secured by a Lien;
(A2) to the extent such Net Proceeds are from an Asset Sale of Collateralrepay Obligations under other Indebtedness (other than Disqualified Stock or subordinated Indebtedness), Obligations with Pari Passu Lien Priority (including the Senior Credit Facilities or any Refinancing Indebtedness in respect thereof but other than Indebtedness owed to the Company or any Restricted Subsidiary), and, in an Affiliate of the case of revolving obligations, to correspondingly Company; provided that the Company shall equally and ratably reduce commitments with respect thereto, provided that, to the extent either Issuer or any Restricted Subsidiary will so repay any such Indebtedness (other than the Notes), the Issuers shall reduce Obligations under the Notes on a pro rata basis by, at their option, (i) redeeming Notes as provided under Section 3.07 hereof (ii) purchasing Notes hereof, through open-open market purchases (to the extent such purchases are at or (iiiabove 100% of the principal amount thereof) or by making an offer (in accordance with the procedures set forth herein below for an Asset Sale Offer) to all Holders to purchase their Notes at a purchase price equal to 100.0100% of the principal amount thereof, plus the amount of accrued but unpaid interest, if any, on the principal amount of the Notes to that would otherwise be repurchased to the date of repurchaseprepaid;
(B3) to acquire all or substantially all of the extent assets of, or any Capital Stock of, another Permitted Business, if, after giving effect to any such Net Proceeds resulted from an Asset Sale not consisting acquisition of CollateralCapital Stock, Obligations in respect the Permitted Business is or becomes a Restricted Subsidiary of other Secured Indebtedness (which may include the Notes), and, in the case of revolving commitments, to correspondingly reduce commitments with respect theretoCompany;
(C4) Obligations to make a capital expenditure;
(5) to acquire other assets that are not classified as current assets under U.S. GAAP and that are used or useful in respect a Permitted Business; or
(6) any combination of the Notes or any other Indebtedness (other than Subordinated Indebtedness) of the Company or any Restricted Subsidiary, other than Indebtedness owed to the Company or any Restricted Subsidiary (and, in the case of revolving commitments, to correspondingly reduce commitments with respect thereto), foregoing; provided that, to the extent either Issuer or any Restricted Subsidiary will so repay any such Indebtedness (other than the Notes), the Issuers will reduce Obligations under the Notes on a pro rata basis by, at their option, (i) redeeming Notes as provided under Section 3.07 hereof or (ii) by making an offer (in accordance with the procedures set forth herein for an Asset Sale Offer) to all Holders to purchase their Notes at a purchase price equal to 100.0% of the principal amount thereof, plus the amount of accrued but unpaid interest, if any, on the principal amount of the Notes to be repurchased to the date of repurchase; or |US-DOCS\143900591.2||
(D) Obligations in respect of Indebtedness of a Non-Guarantor Subsidiary, other than Indebtedness owed to the Company or another Restricted Subsidiary; provided, in the case of clauses (A3) or and (C5) above, (i) if an offer to purchase any Indebtedness 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 or any such Restricted Subsidiary is made, enters into such amount 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 and after the date of such cancelation or termination. 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 $50.0 million, within five days thereof, the Company will make 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 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 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, 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 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 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 the applicable agent shall select such other pari passu Indebtedness 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 amounts tendered or required to be prepaid or redeemed (with such adjustments as may be deemed repaid 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 amount of Excess Proceeds will be reset at zero.
(d) The Company will comply with the requirements of Rule 14e-1 under the Exchange Act and any other securities laws and regulations thereunder to the extent such laws or regulations are applicable in connection with the repurchase of Notes pursuant to an Asset Sale Offer. Notwithstanding anything to the amount contrary herein, to the extent that the provisions of such offerany securities laws or regulations conflict with the provisions of this Indenture, whether or the Company will comply with the applicable securities laws and regulations and shall not accepted by the holders of such Indebtedness, and no Net Proceeds in the amount of such offer will be deemed to exist following such offer, and (ii) if the holder of any Indebtedness of a Restricted Subsidiary of the Company declines the repayment of such Indebtedness owed to it from such Net Proceeds such amount will be deemed repaid to the extent of the declined Net Proceeds, or
(2) 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 that results in the Company or any Restricted Subsidiary, as the case may be, owning an amount of the Capital Stock of such business such that such business constitutes a Restricted Subsidiary or increases the Company’s direct or indirect percentage ownership of the Capital Stock of a Restricted Subsidiary;have breached its obligations under this Indenture by virtue thereof.
Appears in 1 contract
Sources: Indenture (Coeur Mining, Inc.)
Asset Sales. (a) From and after the Completion Date, the Company The Issuer shall not consummatenot, and shall not permit any of its Restricted Subsidiaries to consummateto, consummate an Asset Sale, Sale unless:
(1) the Company Issuer (or such the Restricted Subsidiary, as the case may be, ) receives consideration at the time of such Asset Sale at least equal to the fair market value (as determined in good faith by the Company at the time of contractually agreeing to such Asset Sale) of the assets or Equity Interests issued or sold or otherwise disposed of;
(2) in the case of Asset Sales involving consideration in excess of $10.0 million, such fair market value is determined by the Issuer's Board of Directors and evidenced by a resolution of the Board of Directors set forth in an Officers' Certificate delivered to the Trustee; and
(23) except in the case of a Permitted Asset Swap, if the property or assets sold or otherwise disposed of have a fair market value in excess of the greater of $375.0 million and 50.0% of LTM EBITDA for the most recently ended Test Period at the time of such disposition, at least 75.075% of the consideration therefor received by the Company Issuer or such Restricted Subsidiary, as the case may be, Subsidiary is in the form of cash cash, Cash Equivalents or Cash Equivalents; provided that the amount of:
(A) any liabilities, contingent or otherwise, of the Company or such Restricted Subsidiary, other than liabilities that are by their terms subordinated to the Notes or that are owed to the Company Replacement Assets or a Restricted Subsidiary that (x) are assumed by the transferee of any such assets (or a third party in connection with such transfer) or (y) are otherwise cancelled or terminated in connection with the transaction with such transferee (other than intercompany debt owed to the Company or its Restricted Subsidiaries) and, in each case, for which the Company and all of its Restricted Subsidiaries have been validly released,
(B) any securities, notes or other obligations or assets received by the Company or such Restricted Subsidiary from such transferee that are converted by the Company or such Restricted Subsidiary into cash or Cash Equivalents (to the extent of the cash or Cash Equivalents received) within 180 days following the closing of such Asset Sale;
(C) Indebtedness of any Restricted Subsidiary that ceases to be a Restricted Subsidiary as a result of such Asset Sale (other than intercompany debt owed to the Company or any Restricted Subsidiary), to the extent that the Company and each other Restricted Subsidiary are released from any guarantee of payment of the principal amount of such Indebtedness in connection with such Asset Sale in accordance with the terms of this Indenture;
(D) consideration consisting of Indebtedness of the Issuers or a Guarantor (other than intercompany debt owed to the Company or any Restricted Subsidiary and other than Subordinated Indebtedness) received after the Issue Date from Persons who are not the Company, Holdings or any Restricted Subsidiary;
(E) any Designated Non-cash Consideration received by the Company or such Restricted Subsidiary in such Asset Sale having an aggregate fair market value, as determined by the Company, taken together with all other Designated Non-cash Consideration received pursuant to this clause (E) that is at that time outstanding, not to exceed the greater of $225.0 million and 30.0% of LTM EBITDA for the most recently ended Test Period at the time of the receipt of |US-DOCS\143900591.2|| such Designated Non-cash Consideration (with the fair market value of each such item of Designated Non-cash Consideration being measured pursuant to this clause (E) at the Company’s option, either at the time of contractually agreeing to such Asset Sale or at the time received and, in either case, without giving effect to subsequent changes in value); and
(F) any Investment, Capital Stock, assets, property or capital or other expenditure of the kind referred to in clauses (2) or (3) of Section 4.10(b) hereof shall be deemed to be Cash Equivalents for purposes of this provision and for no other purposecombination thereof.
(b) Within 540 365 days after the Issuer's or Restricted Subsidiary of the Issuer's receipt of any Net Proceeds of any Asset Sale (the “Proceeds Application Period”), the Company or such Restricted Subsidiary, at their option, may apply an amount equal to the Net Proceeds from such Asset Sale,, the Issuer or such Restricted Subsidiary may at its option do any one or more of the following:
(1) to reduce, prepay, repay or purchase:
(A) to the extent such Net Proceeds are from an Asset Sale of Collateral, Obligations with Pari Passu permanently reduce any Indebtedness secured by a Permitted Lien Priority (including the Senior Credit Facilities ABL Facility and the Term Loan Facility) or any Refinancing Indebtedness in respect thereof but other than Indebtedness owed to the Company or any of a Restricted Subsidiary), Subsidiary that is not a Guarantor (and, in the case of revolving obligations, to correspondingly reduce commitments with respect thereto) or any Pari Passu Indebtedness, provided that, in each case other than Indebtedness owed to the extent either Issuer or an Affiliate of the Issuer; provided, however, that if the Issuer or any Restricted Subsidiary will Guarantor shall so repay reduce any such Indebtedness (other than the Notes)Pari Passu Indebtedness, the Issuers shall Issuer will equally and ratably reduce Obligations Indebtedness under the Notes on a pro rata basis by, at their option, (i) redeeming Notes as provided under Section 3.07 hereof (ii) purchasing Notes through open-market purchases (to the extent such purchases are at or (iiiabove 100.0% of the principal amount thereof) or by making an offer (in accordance with the procedures set forth herein for an Asset Sale Offer) to all Holders of Notes to purchase their Notes at a purchase price equal to 100.0100% of the principal amount thereof, plus the amount of accrued but and unpaid interestinterest and Additional Interest, if any, on the pro rata principal amount of the Notes Notes, such offer to be repurchased to the date of repurchase;
(B) to the extent such Net Proceeds resulted from an Asset Sale not consisting of Collateral, Obligations in respect of other Secured Indebtedness (which may include the Notes), and, in the case of revolving commitments, to correspondingly reduce commitments with respect thereto;
(C) Obligations in respect of the Notes or any other Indebtedness (other than Subordinated Indebtedness) of the Company or any Restricted Subsidiary, other than Indebtedness owed to the Company or any Restricted Subsidiary (and, in the case of revolving commitments, to correspondingly reduce commitments with respect thereto), provided that, to the extent either Issuer or any Restricted Subsidiary will so repay any such Indebtedness (other than the Notes), the Issuers will reduce Obligations under the Notes on a pro rata basis by, at their option, (i) redeeming Notes as provided under Section 3.07 hereof or (ii) by making an offer (conducted in accordance with the procedures set forth herein in this Section 4.13 for an Asset Sale Offer) to all Holders to purchase their Notes at a purchase price equal to 100.0% of the principal amount thereof, plus the amount of accrued Offer but unpaid interest, if any, on the principal amount of the Notes to be repurchased to the date of repurchasewithout any further limitation in amount; or |US-DOCS\143900591.2||
(D) Obligations in respect of Indebtedness of a Non-Guarantor Subsidiary, other than Indebtedness owed to the Company or another Restricted Subsidiary; provided, in the case of clauses (A) or (C) above, (i) if an offer to purchase any Indebtedness of the Company or any Restricted Subsidiary is made, such amount will be deemed repaid to the extent of the amount of such offer, whether or not accepted by the holders of such Indebtedness, and no Net Proceeds in the amount of such offer will be deemed to exist following such offer, and (ii) if the holder of any Indebtedness of a Restricted Subsidiary of the Company declines the repayment of such Indebtedness owed to it from such Net Proceeds such amount will be deemed repaid to the extent of the declined Net Proceeds, or
(2) to acquire assets or make an Investment capital expenditures, that, in either case, are used or useful in a Permitted Business (A) any one or more businessesprovided, provided however, that if such Investment in any business acquisition is in the form of the acquisition of Capital Stock that of a Person, such acquisition results in such Person becoming a Restricted Subsidiary of the Company Issuer or, if such Person is a Restricted Subsidiary of the Issuer (other than a Wholly Owned Subsidiary), in an increase in the percentage ownership of such Person by the Issuer or any Restricted SubsidiarySubsidiary of the Issuer) (an “Asset Sale Investment”). Pending the final application of any such Net Proceeds, the Issuer or such Restricted Subsidiary of the Issuer may temporarily reduce Indebtedness under a revolving credit facility, if any, or otherwise invest such Net Proceeds in Cash Equivalents.
(c) Any Net Proceeds from any Asset Sale that are not applied or invested as provided in Section 4.13(b) will constitute “Excess Proceeds”. Within ten Business Days after the date that 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 Pari Passu Indebtedness) (an “Asset Sale Offer”) to purchase the maximum principal amount of Notes (and principal amount or accreted value, as applicable, of such Pari Passu Indebtedness), that is a multiple of $2,000 or an integral multiple of $1,000 in excess thereof that may be purchased out of the case may be, owning Excess Proceeds. The offer price in any Asset Sale Offer shall be in an amount equal to 100% of the principal amount of the Capital Stock Notes, plus accrued and unpaid interest and Additional Interest, if any (or, in respect of such business Pari Passu Indebtedness, such lesser price, if any, as may be provided for by the terms of such Pari Passu Indebtedness), plus accrued and unpaid interest to the date of purchase, and will be payable in cash (the “Excess Proceeds Payment”), to the date fixed for the closing of such Asset Sale Offer.
(d) If any Excess Proceeds remain after consummation of an Asset Sale Offer, the Issuer may use such Excess Proceeds for general corporate purposes. If the aggregate principal amount of Notes and Pari Passu Indebtedness tendered into such Asset Sale Offer exceeds the amount of Excess Proceeds, the Notes and such Pari Passu Indebtedness to be purchased shall be purchased on a pro rata basis based on the principal amount of Notes and such Pari Passu Indebtedness tendered. Upon completion of each Asset Sale Offer, the amount of Excess Proceeds shall be reduced to zero.
(1) For purposes of this Section 4.13(a)(3), each of the following shall be deemed to be cash:
(i) any liabilities (as shown on the Issuer's or such Restricted Subsidiary's most recent balance sheet) of the Issuer or any Restricted Subsidiary (other than contingent liabilities and liabilities that are by their terms subordinated to the Notes or any Note Guarantee) that are assumed by the transferee of any such assets and, in the case of liabilities other than Non-Recourse Debt, where the Issuer and all Restricted Subsidiaries are released from any further liability in connection therewith;
(ii) any securities, notes or other obligations received by the Issuer or any such Restricted Subsidiary from such transferee that are converted by the Issuer or such Restricted Subsidiary into cash within 180 days thereafter (to the extent of the cash received in that conversion); and
(iii) any Designated Noncash Consideration received by the Issuer or any of its Restricted Subsidiaries in such Asset Sale having an aggregate fair market value (as determined in good faith by the Board of Directors of the Issuer), taken together with all other Designated Noncash Consideration received pursuant to this clause (c) that is at that time outstanding, not to exceed the greater of (x) $50.0 million or (y) 5.0% of Consolidated Tangible Assets at the time of the receipt of such Designated Noncash Consideration (with the fair market value of each item of Designated Noncash Consideration being measured at the time received without giving effect to subsequent changes in value).
(2) Any liabilities of the Issuer or any Restricted Subsidiary that are not assumed by the transferee of such assets in respect of which the Issuer and all Restricted Subsidiaries are not released from any future liabilities in connection therewith shall not be considered consideration.
(e) Immediately following any Asset Sale Offer, the Issuer is required to mail a notice to the Trustee and to each Holder stating:
(i) that such business constitutes a Restricted Subsidiary or increases offer is being made pursuant to this Section 4.13 and that all Notes tendered will be accepted for payment;
(ii) the Company’s direct or indirect percentage ownership amount of the Capital Stock Excess Proceeds Payment, as applicable, and the purchase date (in each case, the “Payment Date”), which may not be earlier than 30 days nor later than 60 days from the date such notice is mailed;
(iii) that any Note not tendered will continue to accrue interest;
(iv) that, unless the Issuer defaults in the payment thereof, all Notes accepted for payment pursuant to the such offer will cease to accrue interest on and after the Payment Date, as applicable;
(v) that Holders electing to have any Notes purchased pursuant to such offer will be required to surrender the Notes to be purchased to the Paying Agent at the address specified in the notice prior to the close of business on the third business day preceding the Payment Date;
(vi) that Holders will be entitled to withdraw Notes they have tendered on the terms and conditions set forth in such notice; and
(vii) that Holders whose Notes are being purchased only in part will be issued new Notes (or book-entry notation made with respect thereto) equal in principal amount to the unpurchased portion of the Notes tendered; provided that the portion of each Note purchased and each such new Note issued (or book-entry notation, if applicable) shall be in a Restricted Subsidiaryprincipal amount of $2,000 or an integral multiple of $1,000 in excess thereof.
(f) On the Offer Payment Date, the Issuer will, to the extent lawful:
(i) accept for payment all Notes or portions thereof tendered pursuant to such offer and not withdrawn;
(ii) deposit with the Paying Agent an amount sufficient to pay the Excess Proceeds Payment, as applicable, in respect of all Notes or portions thereof so tendered and not withdrawn; and
(iii) deliver or cause to be delivered to the Trustee all Notes so tendered and not withdrawn together with an Officers' Certificate specifying the Notes or portions thereof tendered to the Issuer.
(g) The Paying Agent will promptly mail to each Holder of Notes so tendered and not withdrawn the Excess Proceeds Payment, as applicable, in respect of such Notes, and the Trustee will promptly authenticate and mail to such Holder a new Note (or cause to be transferred by book entry) equal in principal amount to any unpurchased portion of the Notes surrendered; provided that each such new Note shall be in a principal amount of $2,000 or an integral multiple of $1,000 in excess thereof. The Issuer will publicly announce the results of such offer on or as soon as practicable after the Payment Date.
(h) The Issuer will comply with the requirements of Rule 14e-1 under the Exchange Act and any other securities laws and regulations thereunder to the extent such laws and regulations are applicable in connection with each repurchase of Notes pursuant to such offer. To the extent that the provisions of any securities laws or regulations conflict with this Section 4.13, the Issuer will comply with the applicable securities laws and regulations and will not be deemed to have breached its obligations under this Section 4.13 by virtue of complying with such laws and regulations.
Appears in 1 contract
Sources: Indenture (Nortek Inc)
Asset Sales. (a) From and after the Completion Date, the Company shall not consummate▇▇▇▇▇ Energy Partners will not, and shall will not permit any of its Restricted Subsidiaries to consummateto, consummate an Asset Sale, Sale unless:
(1) ▇▇▇▇▇ Energy Partners (or the Company or 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 Fair Market Value of the assets or Equity Interests issued or sold or otherwise disposed of (as such Fair Market Value to be determined in good faith by on the Company at the time date of contractually agreeing to such Asset SaleSale and which shall give effect to the assumption by another Person of any liabilities as provided for in (2)(A) of the assets sold or otherwise disposed ofbelow; and
(2) except in the case of a Permitted Asset Swap, if the property or assets sold or otherwise disposed of have a fair market value in excess of the greater of $375.0 million and 50.0% of LTM EBITDA for the most recently ended Test Period at the time of such disposition, at least 75.075% of the consideration therefor received in the Asset Sale by the Company ▇▇▇▇▇ Energy Partners or such Restricted Subsidiary, as together with the case may be, consideration received in all other Asset Sales by ▇▇▇▇▇ Energy Partners or any Restricted Subsidiary since the Issue Date (on a cumulative basis) is in the form of cash or Cash Equivalents; provided that . For purposes of this provision, each of the amount offollowing shall be deemed to be cash:
(A) any liabilities, contingent or otherwiseas shown on ▇▇▇▇▇ Energy Partners’ most recent consolidated balance sheet, of the Company ▇▇▇▇▇ Energy Partners or such any Restricted Subsidiary, Subsidiary (other than contingent liabilities and liabilities that are by their terms subordinated to the Notes or any Note Guarantees) that are owed to the Company or a Restricted Subsidiary that (x) are assumed by the transferee of any such assets (pursuant to an agreement that releases ▇▇▇▇▇ Energy Partners or a third party in connection with such transfer) or (y) are otherwise cancelled or terminated in connection with the transaction with such transferee (other than intercompany debt owed to the Company or its Restricted Subsidiaries) and, in each case, for which the Company and all of its Restricted Subsidiaries have been validly released,Subsidiary from further liability;
(B) any securities, notes or other obligations or assets received by the Company ▇▇▇▇▇ Energy Partners or any such Restricted Subsidiary from such transferee that are within 90 days after the Asset Sale (subject to ordinary settlement periods), converted by the Company ▇▇▇▇▇ Energy Partners or such Restricted Subsidiary into cash or Cash Equivalents (cash, to the extent of the cash or Cash Equivalents received) within 180 days following the closing of such Asset Salereceived in that conversion;
(C) Indebtedness of any Restricted Subsidiary that ceases to be a Restricted Subsidiary as a result of such Asset Sale (other than intercompany debt owed to the Company stock or any Restricted Subsidiary), to the extent that the Company and each other Restricted Subsidiary are released from any guarantee of payment of the principal amount of such Indebtedness in connection with such Asset Sale in accordance with the terms of this Indenture;
(D) consideration consisting of Indebtedness of the Issuers or a Guarantor (other than intercompany debt owed to the Company or any Restricted Subsidiary and other than Subordinated Indebtedness) received after the Issue Date from Persons who are not the Company, Holdings or any Restricted Subsidiary;
(E) any Designated Non-cash Consideration received by the Company or such Restricted Subsidiary in such Asset Sale having an aggregate fair market value, as determined by the Company, taken together with all other Designated Non-cash Consideration received pursuant to this clause (E) that is at that time outstanding, not to exceed the greater of $225.0 million and 30.0% of LTM EBITDA for the most recently ended Test Period at the time of the receipt of |US-DOCS\143900591.2|| such Designated Non-cash Consideration (with the fair market value of each such item of Designated Non-cash Consideration being measured pursuant to this clause (E) at the Company’s option, either at the time of contractually agreeing to such Asset Sale or at the time received and, in either case, without giving effect to subsequent changes in value); and
(F) any Investment, Capital Stock, assets, property or capital or other expenditure assets of the kind referred to in clauses (2) or (34) of Section 4.10(b) hereof shall be deemed to be Cash Equivalents for purposes of this provision and for no other purpose.the next succeeding paragraph; and
(bD) accounts receivable of a business retained by ▇▇▇▇▇ Energy Partners or any of its Restricted Subsidiaries, as the case may be, following the sale of such business, provided such accounts receivable (i) are not past due more than 60 days and (ii) do not have a payment date greater than 90 days from the date of the invoices creating such accounts receivable. Within 540 365 days after the receipt of any Net Proceeds of any Asset Sale (the “Proceeds Application Period”), the Company or such Restricted Subsidiary, at their option, may apply an amount equal to the Net Proceeds from such Asset Sale,
(1) to reduce, prepay, repay or purchase:
(A) to the extent such Net Proceeds are from an Asset Sale of CollateralSale, Obligations with Pari Passu Lien Priority ▇▇▇▇▇ Energy Partners (including or the Senior Credit Facilities or any Refinancing Indebtedness in respect thereof but other than Indebtedness owed to the Company or any Restricted Subsidiary), and, in the case of revolving obligations, to correspondingly reduce commitments with respect thereto, provided that, to the extent either Issuer or any Restricted Subsidiary will so repay any such Indebtedness (other than the Notes), the Issuers shall reduce Obligations under the Notes on a pro rata basis by, at their option, (i) redeeming Notes as provided under Section 3.07 hereof (ii) purchasing Notes through open-market purchases or (iii) by making an offer (in accordance with the procedures set forth herein for an Asset Sale Offer) to all Holders to purchase their Notes at a purchase price equal to 100.0% of the principal amount thereof, plus the amount of accrued but unpaid interest, if any, on the principal amount of the Notes to be repurchased to the date of repurchase;
(B) to the extent such Net Proceeds resulted from an Asset Sale not consisting of Collateral, Obligations in respect of other Secured Indebtedness (which may include the Notes), and, in the case of revolving commitments, to correspondingly reduce commitments with respect thereto;
(C) Obligations in respect of the Notes or any other Indebtedness (other than Subordinated Indebtedness) of the Company or any Restricted Subsidiary, other than Indebtedness owed to the Company or any Restricted Subsidiary (and, in the case of revolving commitments, to correspondingly reduce commitments with respect thereto), provided that, to the extent either Issuer or any Restricted Subsidiary will so repay any such Indebtedness (other than the Notes), the Issuers will reduce Obligations under the Notes on a pro rata basis by, at their option, (i) redeeming Notes as provided under Section 3.07 hereof or (ii) by making an offer (in accordance with the procedures set forth herein for an Asset Sale Offer) to all Holders to purchase their Notes at a purchase price equal to 100.0% of the principal amount thereof, plus the amount of accrued but unpaid interest, if any, on the principal amount of the Notes to be repurchased to the date of repurchase; or |US-DOCS\143900591.2||
(D) Obligations in respect of Indebtedness of a Non-Guarantor Subsidiary, other than Indebtedness owed to the Company or another Restricted Subsidiary; provided, in the case of clauses (A) or (C) above, (i) if an offer to purchase any Indebtedness of the Company or any Restricted Subsidiary is made, such amount will be deemed repaid to the extent of the amount of such offer, whether or not accepted by the holders of such Indebtedness, and no Net Proceeds in the amount of such offer will be deemed to exist following such offer, and (ii) if the holder of any Indebtedness of a Restricted Subsidiary of the Company declines the repayment of such Indebtedness owed to it from such Net Proceeds such amount will be deemed repaid to the extent of the declined Net Proceeds, or
(2) 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 that results in the Company or any applicable Restricted Subsidiary, as the case may be) may apply such Net Proceeds:
(1) to repay Senior Indebtedness of ▇▇▇▇▇ Energy Partners and/or its Restricted Subsidiaries (or to make an offer to repurchase or redeem such Indebtedness, owning an amount provided that such repurchase or redemption closes within 45 days after the end of such 365-day period);
(2) 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 such business such that such business constitutes Capital Stock, the Permitted Business is or becomes a Restricted Subsidiary of ▇▇▇▇▇ Energy Partners;
(3) to make a capital expenditure; or
(4) to acquire other assets that are not classified as current assets under GAAP and that are used or increases useful in a Permitted Business. Notwithstanding the Company’s direct foregoing, if within 365 days after the receipt of any Net Proceeds from an Asset Sale, ▇▇▇▇▇ Energy Partners (or indirect percentage ownership the applicable Restricted Subsidiary, as the case may be) enters into a binding written agreement irrevocably committing ▇▇▇▇▇ Energy Partners or such Restricted Subsidiary to an application of funds of the Capital Stock kind described in clause (2), (3) or (4) of the preceding paragraph, and as to which the only condition to closing is the receipt of required governmental approvals or, in the case of clause (3), the completion of required construction of the applicable asset(s), ▇▇▇▇▇ Energy Partners or such Restricted Subsidiary shall be deemed not to be in violation of the preceding paragraph. Any Net Proceeds that are applied pursuant to clause (2) or (4) of the preceding paragraph pursuant to any such binding agreement shall be deemed to have been applied for such purpose within such 365-day period so long as they are so applied within two years after the date of receipt of such Net Proceeds. Pending the final application of any Net Proceeds, ▇▇▇▇▇ Energy Partners or any Restricted Subsidiary 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.” When the aggregate amount of Excess Proceeds exceeds $50.0 million, within five days thereof (or earlier at the Issuers option), the Issuers will make 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 or redeem with the proceeds of sales of assets to purchase the maximum principal amount of Notes and such other pari passu Indebtedness that may be purchased out of the Excess Proceeds. The offer price in any Asset Sale Offer 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, ▇▇▇▇▇ Energy Partners 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 the representative of such other pari passu Indebtedness will select such other pari passu Indebtedness to be purchased on a Restricted Subsidiary;pro rata basis. Upon completion of each Asset Sale Offer, the amount of Excess Proceeds will be reset at zero. ▇▇▇▇▇ Energy Partners 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 each repurchase of Notes pursuant to 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, ▇▇▇▇▇ Energy Partners will comply with the applicable securities laws and regulations and 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
Sources: Indenture (Holly Energy Partners Lp)
Asset Sales. (a) From and after the Completion Date, the Company shall not consummateThe Issuer will not, and shall will not permit any of its Restricted Subsidiaries to consummateto, consummate an Asset Sale, unless:
(1) the Company Issuer or such Restricted Subsidiary, as the case may be, receives consideration at the time of such Asset Sale at least equal to the fair market value at the time of such Asset Sale (as determined in good faith Good Faith by the Company at the time of contractually agreeing to such Asset SaleIssuer) of the assets sold or otherwise disposed of; and
(2) except in the case of a Permitted Asset Swap, if the property or assets sold or otherwise disposed of have a fair market value in excess of the greater of $375.0 million and 50.0% of LTM EBITDA for the most recently ended Test Period at the time of such disposition, at least 75.075% of the consideration therefor received by the Company Issuer or such Restricted Subsidiary, as the case may be, is in the form of cash or Cash Equivalents; provided that the amount of:
(A) any liabilitiesliabilities (as shown on the Issuer’s or such Restricted Subsidiary’s most recent balance sheet or in the footnotes thereto, contingent or otherwiseif incurred or accrued subsequent to the date of such balance sheet, such liabilities that would have been shown on such balance sheet or in the footnotes thereto if such incurrence or accrual had taken place on or prior to the date of such balance sheet, as determined in Good Faith by the Issuer) of the Company Issuer or such Restricted Subsidiary, other than liabilities that are by their terms subordinated to the Notes or Notes, that are owed to the Company or a Restricted Subsidiary that (x) are assumed by the transferee of any such assets (or a third party in connection with such transfer) or (y) are otherwise cancelled or terminated in connection with the transaction with such transferee (other than intercompany debt owed to the Company or its Restricted Subsidiaries) and, in each case, and for which the Company Issuer and all of its Restricted Subsidiaries have been validly released,released from further liability therefor;
(B) any securities, notes or other obligations or assets received by the Company Issuer or such Restricted Subsidiary from such transferee that are converted by the Company Issuer or such Restricted Subsidiary into cash or Cash Equivalents (to the extent of the cash or Cash Equivalents received) within 180 120 days following the closing of such Asset Sale;; and
(C) Indebtedness of any Restricted Subsidiary that ceases to be a Restricted Subsidiary as a result of such Asset Sale (other than intercompany debt owed to the Company or any Restricted Subsidiary), to the extent that the Company and each other Restricted Subsidiary are released from any guarantee of payment of the principal amount of such Indebtedness in connection with such Asset Sale in accordance with the terms of this Indenture;
(D) consideration consisting of Indebtedness of the Issuers or a Guarantor (other than intercompany debt owed to the Company or any Restricted Subsidiary and other than Subordinated Indebtedness) received after the Issue Date from Persons who are not the Company, Holdings or any Restricted Subsidiary;
(E) any Designated Non-cash Cash Consideration received by the Company Issuer or such any of its Restricted Subsidiary Subsidiaries in such Asset Sale having an aggregate fair market value, as determined by the Company, taken together with all other Designated Non-cash Cash Consideration received pursuant to this clause (EC) that is at that time outstanding, not to exceed the greater of $225.0 20.0 million and 30.0% of LTM EBITDA for the most recently ended Test Period at the time of the receipt of |US-DOCS\143900591.2|| such Designated Non-cash Cash Consideration (with the fair market value of each such item of Designated Non-cash Cash Consideration being measured pursuant to this clause (E) at in Good Faith by the Company’s option, either at the time of contractually agreeing to such Asset Sale or Issuer at the time received and, in either case, without giving effect to subsequent changes in value); and
(F) any Investment, Capital Stock, assets, property or capital or other expenditure of the kind referred to in clauses (2) or (3) of Section 4.10(b) hereof shall be deemed to be Cash Equivalents for purposes of this provision and for no other purpose;
(3) the remaining consideration for such Asset Sale received by the Issuer or a Guarantor that is not in the form of cash or Cash Equivalents shall be, thereupon with its acquisition, pledged as Collateral to secure the Notes, to the extent such consideration constitutes assets or property of a type that would constitute Collateral under the Security Documents; and
(4) in the case of any Asset Sale of property or other assets constituting Collateral or of any Recovery Event in respect of property or other assets constituting Collateral, the Issuer or the applicable Guarantor shall deposit the Net Proceeds therefrom as collateral in a segregated account or accounts (each, a “Collateral Proceeds Account”) held by or under the control of (for purposes of the Uniform Commercial Code) the Collateral Agent or its agent to secure all secured obligations (it being agreed that in the case of an Asset Sale or Recovery Event that involves Collateral as well as assets or property that are not Collateral, the portion of the Net Proceeds therefrom allocable to Collateral that are required to be deposited in the Collateral Proceeds Account shall be determined in Good Faith by the Issuer); provided that no such deposit will be required except to the extent the aggregate Net Proceeds from all Asset Sales of property or other assets constituting Collateral or of a Recovery Event that are not held in a Collateral Proceeds Account and have not previously been applied in accordance with the provisions described in the next succeeding paragraph exceeds $1.0 million (or, if there are no outstanding Specified Obligations, $2.5 million).
(b) Within 540 90 days (or, if there are no outstanding Specified Obligations, 365 days) after the receipt of any Net Proceeds of any Asset Sale of property or other assets or of any Recovery Event or, in the event that clause (iii) of the “Proceeds Application Period”proviso to clause (1) below applies, the completion of an offer pursuant to such clause (iii), the Company Issuer or such Restricted Subsidiary, at their option, may Subsidiary shall apply an amount equal to the Net Proceeds from such Asset Sale,Sale or Recovery Event:
(1) to reduce, prepay, repay or purchasemake:
(Aa) to an Investment in the extent Capital Stock of any Person that becomes a Restricted Subsidiary or is merged with or into the Issuer or one of its Restricted Subsidiaries as a result of such Net Proceeds are from an Asset Sale transaction;
(b) capital expenditures by the Issuer or one of Collateralits Restricted Subsidiaries, Obligations with Pari Passu Lien Priority which may include performance of a repair or restoration of the affected Collateral in the event of a Recovery Event; or
(including the Senior Credit Facilities c) acquisitions of properties or any Refinancing Indebtedness in respect thereof but other assets (other than Indebtedness owed to working capital assets) by the Company Issuer or any one of its Restricted Subsidiary)Subsidiaries, andwhich, in the case of revolving obligationseach of (a), (b) and (c) are used or useful in a Similar Business or replace the businesses, properties and/or assets that are the subject of such Asset Sale (any such Capital Stock, property or other assets acquired, constructed, repaired or restored pursuant to correspondingly reduce commitments with respect theretoclause (a), (b) or (c), “Additional Assets”); provided that:
(i) (x) if such Additional Assets (other than any Excluded Assets) are owned by the Issuer or any Guarantor, such Additional Assets are substantially concurrently added to the Collateral securing the Notes and the Guarantees in the manner and to the extent either required in this Indenture or any of the Security Documents and (y) such Additional Assets shall not include the Capital Stock in, or assets of, any Non-Guarantor Subsidiary unless the relevant Asset Sale consisted of the sale of Capital Stock of a Non-Guarantor Subsidiary;
(ii) such Additional Assets shall not include any Television Properties unless (A) such Television Properties constitute improvements, repairs, restorations or similar capital expenditures relating to Television Properties owned by the Issuer or its Restricted Subsidiaries on the Issue Date or purchases of or Investments in Television Programming Assets or (B) the Secured Leverage Ratio on a consolidated basis for the Issuer and its Restricted Subsidiaries’ most recently ended four fiscal quarters for which internal financial statements are available immediately preceding the date of application of the Net Proceeds to such businesses, properties and/or assets would have been less than 4.75 to 1.0, determined on a pro forma basis after giving effect to such application and any Restricted Subsidiary will so repay related Indebtedness;
(iii) with respect to any such Indebtedness Asset Sale entered into on or prior to April 15, 2014, prior to applying any Net Proceeds pursuant to clause (other than the Notesa), (b) or (c) of this clause (1), the Issuers shall reduce Obligations under the Notes on a pro rata basis byIssuer shall, at their optionwithin 30 days after receipt of such Net Proceeds, (i) redeeming Notes as provided under Section 3.07 hereof (ii) purchasing Notes through open-market purchases or (iii) by making make an offer (in accordance with the procedures set forth herein below for an Asset Sale Offer) to all Holders to purchase their Notes at a purchase price equal to 100.0100% of the sum of the principal amount thereofthereof and any Additional Interest that is payable but unpaid for interest periods ending on any Interest Payment Date on or prior to the purchase date, plus the amount of any other interest that is accrued but unpaid interestand unpaid, if any, on such Notes and, if required by the principal terms of any Pari Passu Lien Indebtedness, to the holders of such Pari Passu Lien Indebtedness, on a pro rata basis, with an amount equal to:
(A) 50% of the Notes first $50.0 million of Net Proceeds that the Issuer has elected to be repurchased apply pursuant to the date clause (a), (b) or (c) of repurchase;this clause (1); plus
(B) 25% of the Net Proceeds in excess of $50.0 million that the Issuer has elected to apply pursuant to clause (a), (b) or (c) of this clause (1); provided that (x) the Issuer shall not be required to make an offer pursuant to this clause (iii) until the Net Proceeds to be applied pursuant to clause (A) and (B) above exceeds $2.5 million (or, if there are no outstanding Specified Obligations, $10.0 million) and (y) to the extent the aggregate amount of Notes and such Pari Passu Lien Indebtedness tendered pursuant to an Asset Sale Offer is less than the amount offered pursuant to this clause (iii), the Issuer and its Restricted Subsidiaries may apply the remaining Net Proceeds, together with the portion of the Net Proceeds not required to be used to make an Asset Sale Offer, in accordance with clause (a), (b) or (c) of this clause (1); and
(iv) in the case of each of (a), (b) and (c), a binding commitment shall be treated as a permitted application of the Net Proceeds under this Section 4.05(b) from the date of such commitment so long as the Issuer or such Restricted Subsidiary enters into such commitment with the good faith expectation that such Net Proceeds resulted from will be applied to satisfy such commitment within 180 days of such commitment (an Asset Sale “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 Acceptable Commitment”) within 90 days of such cancellation or termination and with the good faith expectation that such Net Proceeds will be applied within 90 days of such Second Acceptable Commitment, it being understood that if (A) such Net Proceeds are not consisting applied pursuant to an Acceptable Commitment and no Second Acceptable Commitment is entered into, (B) if a Second Acceptable Commitment is later cancelled or terminated for any reason before such Net Proceeds are applied or (C) if such Net Proceeds are not actually applied within such 90-day period, then such Net Proceeds shall constitute Excess Proceeds; or
(2) to reduce or pay Obligations under the Notes and, if required by the terms of Collateralany Pari Passu Lien Indebtedness, Obligations in respect of other Secured Indebtedness (which may include the Notes)under such Pari Passu Lien Indebtedness, andwhether, in the case of revolving commitments, to correspondingly reduce commitments with respect thereto;
(C) Obligations in respect of the Notes or any other Indebtedness (other than Subordinated Indebtedness) of the Company or any Restricted Subsidiary, other than Indebtedness owed to the Company or any Restricted Subsidiary (and, in the case of revolving commitments, to correspondingly reduce commitments with respect thereto), provided that, to the extent either Issuer or any Restricted Subsidiary will so repay any such Indebtedness (other than the Notes), the Issuers will reduce Obligations under the Notes on a pro rata basis by, at their option, (i) redeeming Notes as provided under Section 3.07 hereof 3.07, through open market purchases (to the extent such purchases are at or (iiabove 100% of the sum of the principal amount thereof and any Additional Interest that is payable but unpaid for interest periods ending on any Interest Payment Date on or prior to the purchase date) or by making an offer (in accordance with the procedures set forth herein below for an Asset Sale Offer) to all Holders to purchase their Notes at a purchase price equal to 100.0100% of the sum of the principal amount thereofthereof and any Additional Interest that is payable but unpaid for interest periods ending on any Interest Payment Date on or prior to the purchase date, plus the amount of any other interest that is accrued but unpaid interestunpaid, if any, on the principal amount of Notes that would otherwise be prepaid; provided that any reduction or payment of Obligations under any Pari Passu Lien Indebtedness shall be on a pro rata basis with any reductions or payments of Obligations under the Notes without considering any premium paid to holders of the Notes pursuant to be repurchased to the date of repurchaseany redemption as provided under Section 3.07; or |US-DOCS\143900591.2||or
(D3) Obligations with respect to Net Proceeds received from an Asset Sale of, or any Recovery Event in respect of, property or other assets of a Non-Guarantor Subsidiary, to reduce or repay Indebtedness of a Non-Guarantor Subsidiary, other than Indebtedness owed to the Company Issuer or another Restricted Subsidiary; providedSubsidiary (and to correspondingly reduce commitments with respect thereto).
(c) In addition, the Issuer may satisfy the foregoing obligations under the preceding paragraph with respect to the Net Proceeds (or such lesser amount that the Issuer determines) from an Asset Sale by making an Asset Sale Offer with respect to such Net Proceeds prior to the expiration of the application period.
(d) Any Net Proceeds from any Asset Sale or Recovery Event that are not invested or applied as provided and within the time period set forth in the first sentence of Section 4.05(b) will be deemed to constitute “Excess Proceeds.” When the aggregate amount of Excess Proceeds exceeds $2.5 million (or, if there are no outstanding Specified Obligations, $10.0 million), the Issuer shall make an offer to all Holders and, if required by the terms of any Pari Passu Lien Indebtedness, to the holders of such Pari Passu Lien Indebtedness (an “Asset Sale Offer”), to purchase the maximum aggregate principal amount of the Notes and such Pari Passu Lien Indebtedness that may be purchased out of the Excess Proceeds at an offer price in cash in an amount equal to 100% of the sum of the principal amount thereof and any Additional Interest that is payable but unpaid for interest periods ending on any Interest Payment Date on or prior to the purchase date, plus any other interest that is accrued and unpaid to the date fixed for the closing of such offer, in accordance with the procedures set forth in Section 3.09. The Issuer will commence an Asset Sale Offer with respect to Excess Proceeds within 10 days after the time period set forth in the first sentence of Section 4.05(b) by delivering the notice required pursuant to Section 3.09, with a copy to the Trustee or otherwise in accordance with the Applicable Procedures.
(e) To the extent that the aggregate amount of Notes and such Pari Passu Lien Indebtedness tendered pursuant to an Asset Sale Offer is less than the Excess Proceeds, the Issuer may use any remaining Excess Proceeds for any purposes not in violation of other covenants contained in this Indenture. For the avoidance of doubt, any such use of the remaining Excess Proceeds pursuant to the preceding sentence will be subject to Section 4.03(c). If the aggregate principal amount of Notes surrendered by the Holders and Pari Passu Lien Indebtedness surrendered by the lenders thereof exceeds the amount of Excess Proceeds, the Trustee shall select the Notes and the Issuer or lenders (or agent of such lenders) for such Pari Passu Lien Indebtedness shall select such Pari Passu Lien Indebtedness to be purchased on a pro rata basis (and, in the case of clauses (Athe Notes, otherwise in accordance with the Applicable Procedures) based on the accreted value or (C) above, (i) if an offer to purchase any Indebtedness principal amount of the Company Notes or such Pari Passu Lien Indebtedness tendered, in each case certified to the Trustee in an Officer’s Certificate. Upon completion of any Restricted Subsidiary is madesuch Asset Sale Offer, such the amount of Excess Proceeds shall be reset at zero.
(f) The Issuer will be deemed repaid 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 or regulations are applicable in connection with the repurchase by the Issuer of the amount Notes pursuant to an Asset Sale Offer. To the extent that the provisions of such offerany securities laws or regulations conflict with the provisions of this Indenture, whether or the Issuer will comply with the applicable securities laws and regulations and shall not accepted by the holders of such Indebtedness, and no Net Proceeds in the amount of such offer will be deemed to exist following such offer, and (ii) if the holder of any Indebtedness of a Restricted Subsidiary of the Company declines the repayment of such Indebtedness owed to it from such Net Proceeds such amount will be deemed repaid to the extent of the declined Net Proceeds, or
(2) to make an Investment have breached its obligations described in (A) any one or more businesses, provided that such Investment in any business is in the form of the acquisition of Capital Stock that results in the Company or any Restricted Subsidiary, as the case may be, owning an amount of the Capital Stock of such business such that such business constitutes a Restricted Subsidiary or increases the Company’s direct or indirect percentage ownership of the Capital Stock of a Restricted Subsidiary;this Indenture by virtue thereof.
Appears in 1 contract
Sources: Senior Secured Notes Indenture (Spanish Broadcasting System Inc)
Asset Sales. (a) From and after the Completion Date, the The Company shall not consummatewill not, and shall will not permit any of its Restricted Subsidiaries to consummateto, consummate an Asset Sale, Sale unless:
(1) the Company (or such 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 (as determined in good faith by the Company at the time of contractually agreeing to such Asset Sale) Fair Market Value of the assets or Equity Interests issued or sold or otherwise disposed of; and
(2) except in the case of a Permitted Asset Swap, if the property or assets sold or otherwise disposed of have a fair market value in excess of the greater of $375.0 million and 50.0% of LTM EBITDA for the most recently ended Test Period at the time of such disposition, at least 75.075% of the consideration therefor received by the Company or such Restricted Subsidiary, as Subsidiary in the case may be, Asset Sale and all other Asset Sales since the date of this Supplemental Indenture is in the form of cash cash, Cash Equivalents or Cash Equivalents; provided that Replacement Assets or a combination thereof. For purposes of this provision, each of the amount offollowing shall be deemed to be cash:
(A) any liabilities, contingent as shown on the Company’s most recent consolidated balance sheet (or otherwiseas would be shown on the Company’s consolidated balance sheet as of the date of such Asset Sale), of the Company or such any Restricted Subsidiary, Subsidiary (other than contingent liabilities and liabilities that are by their terms subordinated to the Notes or any Note Guarantee) that are owed to the Company or a Restricted Subsidiary that (x) are assumed by the transferee of any such assets (or pursuant to a third party in connection with such transfer) or (y) are otherwise cancelled or terminated in connection with the transaction with such transferee (other than intercompany debt owed to novation agreement that releases the Company or its such Restricted Subsidiaries) Subsidiary from further liability; and, in each case, for which the Company and all of its Restricted Subsidiaries have been validly released,
(B) any securities, notes or other obligations or assets received by the Company Company, or any such Restricted Subsidiary Subsidiary, from such transferee that are converted by the Company or such Restricted Subsidiary into cash or cash, Cash Equivalents (or Replacement Assets within 90 days after such Asset Sale, to the extent of the cash or cash, Cash Equivalents received) within 180 days following or Replacement Assets received in that conversion. Notwithstanding the closing of such Asset Sale;
(C) Indebtedness of foregoing, the 75% limitation referred to above shall be deemed satisfied with respect to any Restricted Subsidiary that ceases to be a Restricted Subsidiary as a result of such Asset Sale (other than intercompany debt owed to in which the Company cash, Cash Equivalents or any Restricted Subsidiary), to the extent that the Company and each other Restricted Subsidiary are released from any guarantee of payment Replacement Assets portion of the principal amount of such Indebtedness in connection with such Asset Sale consideration received therefrom, determined in accordance with the terms of this Indenture;
(D) consideration consisting of Indebtedness of foregoing provision on an after-tax basis, is equal to or greater than what the Issuers or a Guarantor (other than intercompany debt owed to the Company or any Restricted Subsidiary and other than Subordinated Indebtedness) received after the Issue Date from Persons who are not the Company, Holdings or any Restricted Subsidiary;
(E) any Designated Nonafter-cash Consideration received by the Company or such Restricted Subsidiary in tax proceeds would have been had such Asset Sale having an aggregate fair market value, as determined by the Company, taken together with all other Designated Non-cash Consideration received pursuant to this clause (E) that is at that time outstanding, not to exceed the greater of $225.0 million and 30.0% of LTM EBITDA for the most recently ended Test Period at the time of the receipt of |US-DOCS\143900591.2|| such Designated Non-cash Consideration (complied with the fair market value of each such item of Designated Non-cash Consideration being measured pursuant to this clause (E) at the Company’s option, either at the time of contractually agreeing to such Asset Sale or at the time received and, in either case, without giving effect to subsequent changes in value); and
(F) any Investment, Capital Stock, assets, property or capital or other expenditure of the kind referred to in clauses (2) or (3) of Section 4.10(b) hereof shall be deemed to be Cash Equivalents for purposes of this provision and for no other purpose.
(b) aforementioned 75% limitation. Within 540 365 days after the receipt of any Net Proceeds of any from an Asset Sale (the “Proceeds Application Period”)Sale, the Company or such a Restricted Subsidiary, at their option, Subsidiary may apply an amount equal to the such Net Proceeds from such Asset Sale,Proceeds:
(1) to reduce, purchase Replacement Assets; or
(2) to prepay, repay repay, defease, redeem, purchase or purchase:
(A) otherwise retire Indebtedness and other Obligations under a Credit Facility or Indebtedness secured by property that is subject to the extent such Net Proceeds are from an Asset Sale of Collateral(or unless the Merger has occurred, Obligations with Pari Passu Lien Priority (including the Senior Credit Facilities or any Refinancing Indebtedness in respect thereof but other than Indebtedness owed to the Company or any Restricted Subsidiary), secured Indebtedness) and, in if the case of Indebtedness repaid is revolving obligationscredit Indebtedness, to correspondingly reduce commitments with respect thereto; Notwithstanding the foregoing, provided thatif within 365 days after the receipt of any Net Proceeds from an Asset Sale, the Company or a Restricted Subsidiary enters into a binding written agreement committing the Company or such Restricted Subsidiary, subject to customary conditions, to an application of funds of the extent either Issuer kind described in clause (1) above, the Company or any such Restricted Subsidiary shall be deemed not to be in violation of the preceding paragraph so long as such application of funds is consummated within 545 days of the receipt of such Net Proceeds. Pending the final application of any Net Proceeds of an Asset Sale, the Company may temporarily reduce revolving credit borrowings or otherwise use the Net Proceeds in any manner that is not prohibited by this Supplemental Indenture. An amount equal to any Net Proceeds from Asset Sales that are not applied or invested as provided in the third paragraph of this Section 4.10 will so repay any such Indebtedness constitute “Excess Proceeds.” When the aggregate amount of Excess Proceeds exceeds $20.0 million (other than or, if the NotesMerger has been consummated, $100.0 million), within 20 days thereof, the Issuers Company shall reduce Obligations under apply the Notes on a pro rata basis byentire aggregate amount of unutilized Excess Proceeds (not only the amount in excess of $20.0 million (or, at their optionif the Merger has been consummated, (i$100.0 million)) redeeming Notes as provided under Section 3.07 hereof (ii) purchasing Notes through open-market purchases or (iii) by making to make an offer (in accordance with the procedures set forth herein for an “Asset Sale Offer”) to all Holders of Notes and all holders of other Indebtedness that is pari passu with the Notes containing provisions requiring the Company to make an offer to purchase their or redeem with the proceeds of sales of assets in accordance with Section 3.09 hereof to purchase the maximum principal amount of Notes at a and purchase or redeem such other pari passu Indebtedness that may be purchased or redeemed out of the Excess Proceeds. The offer price in any Asset Sale Offer will be equal to 100.0100% of the principal amount thereof, plus the amount of accrued but unpaid interest, if any, on the principal amount of the Notes to and such other pari passu Indebtedness that may be repurchased purchased or redeemed with Excess Proceeds, plus accrued and unpaid interest to the date of repurchase;
(B) purchase, and will be payable in cash. If any Excess Proceeds remain after consummation of an Asset Sale Offer, the Company and its Restricted Subsidiaries may use those Excess Proceeds for any purpose not otherwise prohibited by this Supplemental 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 the Company will select such other pari passu Indebtedness to be purchased or redeemed 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 Net Proceeds resulted from an Asset Sale not consisting laws and regulations are applicable in connection with each repurchase of Collateral, Obligations in respect of other Secured Indebtedness (which may include the Notes), and, in the case of revolving commitments, Notes pursuant to correspondingly reduce commitments with respect thereto;
(C) Obligations in respect of the Notes or any other Indebtedness (other than Subordinated Indebtedness) of the Company or any Restricted Subsidiary, other than Indebtedness owed to the Company or any Restricted Subsidiary (and, in the case of revolving commitments, to correspondingly reduce commitments with respect thereto), provided that, to the extent either Issuer or any Restricted Subsidiary will so repay any such Indebtedness (other than the Notes), the Issuers will reduce Obligations under the Notes on a pro rata basis by, at their option, (i) redeeming Notes as provided under Section 3.07 hereof or (ii) by making an offer (in accordance with the procedures set forth herein for an Asset Sale Offer) to all Holders to purchase their Notes at . 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 or compliance with Section 3.09 hereof or this Section 4.10 would constitute a purchase price equal to 100.0% violation of the principal amount thereofany such laws or regulations, plus the amount of accrued but unpaid interest, if any, on the principal amount of the Notes to be repurchased to the date of repurchase; or |US-DOCS\143900591.2||
(D) Obligations in respect of Indebtedness of a Non-Guarantor Subsidiary, other than Indebtedness owed to the Company or another Restricted Subsidiary; provided, in will comply with the case of clauses (A) or (C) above, (i) if an offer to purchase any Indebtedness of the Company or any Restricted Subsidiary is made, such amount applicable securities laws and regulations and will be deemed repaid to the extent of the amount of such offer, whether or not accepted by the holders of such Indebtedness, and no Net Proceeds in the amount of such offer will be deemed to exist following such offer, and (ii) if the holder of any Indebtedness of a Restricted Subsidiary of the Company declines the repayment have breached its obligations under Section 3.09 hereof or this Section 4.10 by virtue of such Indebtedness owed to it from such Net Proceeds such amount will be deemed repaid to the extent of the declined Net Proceeds, or
(2) 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 that results in the Company or any Restricted Subsidiary, as the case may be, owning an amount of the Capital Stock of such business such that such business constitutes a Restricted Subsidiary or increases the Company’s direct or indirect percentage ownership of the Capital Stock of a Restricted Subsidiary;compliance.
Appears in 1 contract
Sources: Fifth Supplemental Indenture (Metropcs Communications Inc)
Asset Sales. (a) From and On or after the Completion Escrow Release Date, the Company shall not consummatewill not, and shall will not permit any of its Restricted Subsidiaries to consummateSubsidiary to, consummate an Asset Sale, unless:
(1i) the Company or such Restricted Subsidiary, as the case may be, receives consideration at the time of such Asset Sale at least equal to the fair market value (as determined in good faith by the Company at the time of contractually agreeing to such Asset Sale) Fair Market Value of the assets sold or otherwise disposed of; and
(2ii) except in the case of a Permitted Asset Swap, if the property or assets sold or otherwise disposed of have a fair market value in excess of the greater of $375.0 million and 50.0% of LTM EBITDA for the most recently ended Test Period at the time of such disposition, at least 75.075% of the consideration therefor received by the Company or such Restricted Subsidiary, as the case may be, is in the form of cash or cash, Cash Equivalents; provided that , Replacement Assets or a combination of the foregoing. Within 365 days after the Company’s or any Restricted Subsidiary’s receipt of the Net Proceeds of any Asset Sale, the Company or such Restricted Subsidiary, at its option, may apply an amount ofequal to the Net Proceeds from such Asset Sale:
(A1) to permanently reduce Obligations under Secured Indebtedness, Indebtedness of any Subsidiary and any other Pari Passu Indebtedness and to correspondingly reduce commitments with respect thereto, provided that if the Company shall so reduce Obligations under any other Pari Passu Indebtedness (other than Pari Passu Indebtedness that is Secured Indebtedness), it will equally and ratably reduce Obligations under the Securities of the applicable series in accordance with the procedures set forth in Article IV, through privately negotiated transactions or open market purchases or by making an offer (in accordance with the procedures set forth in Section 4.07 for an Asset Sale Offer) to all Holders to purchase their Securities of such series in each case at or above 100% of the principal amount thereof, plus the amount of accrued but unpaid interest, if any, on the amount of Securities of such series that would otherwise be prepaid, which offer shall constitute a reduction of the Obligations under the Securities of the applicable series under this provision, whether or not accepted;
(2) to (a) make 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 Company or a Restricted Subsidiary, as the case may be, owning or continuing to own an amount of the Capital Stock of such business such that it constitutes a Restricted Subsidiary, (b) make capital expenditures or (c) acquire other assets (including assets that replace the business, properties and assets that were the subject of the Asset Sale), in each of (a), (b) and (c), engaged, used or useful in a Similar Business;
(3) to retire Securities pursuant to the procedures set forth under Article IV; or
(4) any liabilitiescombination of the foregoing; provided that, contingent in the case of clause (2) above, a binding commitment entered into prior to the end of such 365-day reinvestment period shall be treated as a permitted application of the Net Proceeds from the date of such commitment so long as the Company or otherwisesuch Restricted Subsidiary enters into such commitment with the good faith expectation that such Net Proceeds will be applied to satisfy such commitment (an “Acceptable Commitment”) and, in the event any Acceptable 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 Acceptable Commitment (a “Replacement Commitment”) within nine months of such cancellation or termination; provided, further, that if any Replacement Commitment is later canceled or terminated for any reason before such Net Proceeds are applied, then such Net Proceeds shall constitute Excess Proceeds. Any Net Proceeds from an Asset Sale that are not invested or applied as set forth in the preceding paragraph and within the 365-day reinvestment period will be deemed to constitute “Excess Proceeds.” When the aggregate amount of Excess Proceeds exceeds $100.0 million, the Company shall make an offer to all Holders, 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 principal amount of Securities of each series and such Pari Passu Indebtedness that may be purchased out of the Excess Proceeds at an offer price in cash in an amount equal to 100% of the principal amount thereof, plus accrued and unpaid interest to, but not including, the date fixed for the closing of such offer, in accordance with the procedures set forth in Section 4.07. The Company will commence an Asset Sale Offer with respect to Excess Proceeds within ten Business Days after the date that Excess Proceeds exceed $100.0 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 Securities of each series and such Pari Passu Indebtedness tendered pursuant to an Asset Sale Offer is less than the Excess Proceeds, the Company may use any remaining Excess Proceeds for any purpose not otherwise prohibited by this Indenture, subject to other covenants contained in this Indenture. If the aggregate principal amount of Securities of each series or the Pari Passu Indebtedness surrendered by such Holders thereof exceeds the amount of Excess Proceeds, the Trustee shall select the Securities of each series and such Pari Passu Indebtedness to be purchased on a pro rata basis based on the accreted value or principal amount of the Securities of each series or such Pari Passu Indebtedness tendered in accordance with Section 4.07. Upon completion of any such Asset Sale Offer, the amount of Excess Proceeds shall be reset at zero. Pending the final application of any Net Proceeds of Asset Sales, the Company or the applicable Restricted Subsidiary may apply such Net Proceeds temporarily to reduce Indebtedness outstanding under a revolving credit facility or otherwise invest such Net Proceeds in any manner not prohibited by this Indenture.
(b) For purposes of clause (a) of this Section 6.15 only, the following shall be deemed to be Cash Equivalents: (i) any liabilities (as shown on the Company’s, or such Restricted Subsidiary’s, most recent balance sheet or in the footnotes thereto) of the Company or such any Restricted Subsidiary, other than liabilities that are by their terms subordinated in right of payment to the Notes or Securities of the applicable series, that are owed to the Company or a Restricted Subsidiary that (x) are assumed by the transferee of any such assets (or a third party in connection with such transfer) or (y) are otherwise cancelled or terminated in connection with the transaction with such transferee (other than intercompany debt owed to the Company or its Restricted Subsidiaries) and, in each case, and for which the Company and all of its Restricted Subsidiaries have been validly released,
unconditionally released by all creditors or their representatives in writing or that are discharged by the transferee or a third party in a transaction pursuant to which neither the Company nor any of its Restricted Subsidiaries has any liability following such Asset Sale, (Bii) any securities, notes Securities or other obligations or securities or assets received by the Company or such Restricted Subsidiary from such transferee that are converted by the Company or such Restricted Subsidiary into cash or Cash Equivalents (to the extent of the cash or Cash Equivalents received) within 180 days following the closing of such Asset Sale;
, (Ciii) Indebtedness of any Restricted Subsidiary that ceases to be is no longer a Restricted Subsidiary as a result of such Asset Sale (other than intercompany debt owed to the Company or any Restricted Subsidiary)Sale, to the extent that the Company and each other Restricted Subsidiary are released from any guarantee of payment of the principal amount of such Indebtedness in connection with such Asset Sale in accordance with the terms of this Indenture;
Sale; and (D) consideration consisting of Indebtedness of the Issuers or a Guarantor (other than intercompany debt owed to the Company or any Restricted Subsidiary and other than Subordinated Indebtedness) received after the Issue Date from Persons who are not the Company, Holdings or any Restricted Subsidiary;
(Eiv) any Designated Non-cash Noncash Consideration received by the Company or such any Restricted Subsidiary in such Asset Sale having an aggregate fair market value, as determined by the CompanyFair Market Value, taken together with all other Designated Non-cash Noncash Consideration received pursuant to this clause (Eiv) that is at that time outstandingin existence, not to exceed an amount equal to the greater of $225.0 900.0 million and 30.0or 3.00% of LTM EBITDA for the most recently ended Test Period at the time of the receipt of |US-DOCS\143900591.2|| such Designated Non-cash Consideration (Total Assets, with the fair market value Fair Market Value of each such item of Designated Non-cash Noncash Consideration being measured pursuant to this clause (E) at the Company’s option, either at the time of contractually agreeing to such Asset Sale or at the time received and, in either case, and without giving effect to subsequent changes in value); and
(F) . The Company will comply with the requirements of Rule 14e-1 under the Exchange Act and any Investment, Capital Stock, assets, property or capital or other expenditure of the kind referred to in clauses (2) or (3) of Section 4.10(b) hereof shall be deemed to be Cash Equivalents for purposes of this provision securities laws and for no other purpose.
(b) Within 540 days after the receipt of any Net Proceeds of any Asset Sale (the “Proceeds Application Period”), the Company or such Restricted Subsidiary, at their option, may apply an amount equal to the Net Proceeds from such Asset Sale,
(1) to reduce, prepay, repay or purchase:
(A) regulations thereunder to the extent such Net Proceeds laws or regulations are from an Asset Sale of Collateral, Obligations with Pari Passu Lien Priority (including the Senior Credit Facilities or any Refinancing Indebtedness applicable in respect thereof but other than Indebtedness owed to the Company or any Restricted Subsidiary), and, in the case of revolving obligations, to correspondingly reduce commitments with respect thereto, provided that, to the extent either Issuer or any Restricted Subsidiary will so repay any such Indebtedness (other than the Notes), the Issuers shall reduce Obligations under the Notes on a pro rata basis by, at their option, (i) redeeming Notes as provided under Section 3.07 hereof (ii) purchasing Notes through open-market purchases or (iii) by making an offer (in accordance connection with the procedures set forth herein for repurchase of the Securities pursuant to an Asset Sale Offer) to all Holders to purchase their Notes at a purchase price equal to 100.0% of the principal amount thereof, plus the amount of accrued but unpaid interest, if any, on the principal amount of the Notes to be repurchased to the date of repurchase;
(B) to . To the extent such Net Proceeds resulted from an Asset Sale not consisting that the provisions of Collateralany securities laws or regulations conflict with the provisions of this Indenture, Obligations in respect of other Secured Indebtedness (which may include the Notes), and, in the case of revolving commitments, to correspondingly reduce commitments with respect thereto;
(C) Obligations in respect of the Notes or any other Indebtedness (other than Subordinated Indebtedness) of the Company or any Restricted Subsidiary, other than Indebtedness owed to the Company or any Restricted Subsidiary (and, in the case of revolving commitments, to correspondingly reduce commitments with respect thereto), provided that, to the extent either Issuer or any Restricted Subsidiary will so repay any such Indebtedness (other than the Notes), the Issuers will reduce Obligations under the Notes on a pro rata basis by, at their option, (i) redeeming Notes as provided under Section 3.07 hereof or (ii) by making an offer (in accordance comply with the procedures set forth herein for an Asset Sale Offer) to all Holders to purchase their Notes at a purchase price equal to 100.0% of the principal amount thereof, plus the amount of accrued but unpaid interest, if any, on the principal amount of the Notes to be repurchased to the date of repurchase; or |US-DOCS\143900591.2||
(D) Obligations in respect of Indebtedness of a Non-Guarantor Subsidiary, other than Indebtedness owed to the Company or another Restricted Subsidiary; provided, in the case of clauses (A) or (C) above, (i) if an offer to purchase any Indebtedness of the Company or any Restricted Subsidiary is made, such amount will be deemed repaid to the extent of the amount of such offer, whether or applicable securities laws and regulations and shall not accepted by the holders of such Indebtedness, and no Net Proceeds in the amount of such offer will be deemed to exist following such offer, and (ii) if the holder of any Indebtedness of a Restricted Subsidiary of the Company declines the repayment of such Indebtedness owed to it from such Net Proceeds such amount will be deemed repaid to the extent of the declined Net Proceeds, or
(2) to make an Investment have breached its obligations described in (A) any one or more businesses, provided that such Investment in any business is in the form of the acquisition of Capital Stock that results in the Company or any Restricted Subsidiary, as the case may be, owning an amount of the Capital Stock of such business such that such business constitutes a Restricted Subsidiary or increases the Company’s direct or indirect percentage ownership of the Capital Stock of a Restricted Subsidiary;this Indenture by virtue thereof.
Appears in 1 contract
Asset Sales. (a) From and after the Completion Date, the The Company shall not consummatenot, and shall not permit any of its Restricted Subsidiaries to consummateSubsidiary to, an directly or indirectly, consummate any Asset Sale, Sale unless:
(1i) the Company or such Restricted Subsidiary, as the case may be, Subsidiary receives consideration at the time of such Asset Sale at least equal to the fair market value (as determined in good faith by Fair Market Value of the Company at the time of contractually agreeing Property subject to such Asset Sale) of the assets sold or otherwise disposed of; and;
(2ii) except in the case of a Permitted Asset Swap, if the property or assets sold or otherwise disposed of have a fair market value in excess of the greater of $375.0 million and 50.0% of LTM EBITDA for the most recently ended Test Period at the time of such disposition, at least 75.075% of the consideration therefor received by paid to the Company or such Restricted Subsidiary, as the case may be, Subsidiary in connection with such Asset Sale is in the form of cash or Cash Equivalents; provided provided, however, that the amount of:
of (A1) any liabilities, contingent liabilities (as shown on the Company's or otherwise, such Restricted Subsidiary's most recent balance sheet) of the Company or such Restricted Subsidiary, Subsidiary (other than contingent liabilities and liabilities that are by their terms subordinated to the Notes or any Subsidiary Guaranty) that are owed to the Company or a Restricted Subsidiary that (x) are assumed by the transferee of any such assets (or Property pursuant to a third party in connection with such transfer) or (y) are otherwise cancelled or terminated in connection with the transaction with such transferee (other than intercompany debt owed to customary novation agreement that releases the Company or its such Restricted Subsidiaries) and, in each case, for which the Company Subsidiary from further liability and all of its Restricted Subsidiaries have been validly released,
(B2) any securities, notes or other obligations or assets received by the Company or such Restricted Subsidiary from such transferee that are converted within 30 days by the Company or such Restricted Subsidiary into cash or Cash Equivalents (to the extent of the cash or Cash Equivalents received) within 180 days following shall be deemed to be cash for the closing purposes of such Asset Salethis provision;
(Ciii) Indebtedness no Default or Event of any Restricted Subsidiary that ceases to be a Restricted Subsidiary Default would occur as a result of such Asset Sale; and
(iv) the Company delivers an Officers' Certificate to the Trustee certifying that such Asset Sale complies with the preceding clauses (other than intercompany debt owed to a)(i) through (iii).
(b) The Net Available Cash (or any portion thereof) from Asset Sales may be applied by the Company or any a Restricted Subsidiary), to the extent that the Company and each other Restricted Subsidiary are released from any guarantee of payment of the principal amount of such Indebtedness in connection with such Asset Sale in accordance with the terms of this Indenture;
(D) consideration consisting of Indebtedness of the Issuers or a Guarantor (other than intercompany debt owed to the Company or any Restricted Subsidiary and other than Subordinated Indebtedness) received after the Issue Date from Persons who are not the Company, Holdings or any Restricted Subsidiary;
(E) any Designated Non-cash Consideration received by the Company or such Restricted Subsidiary in such Asset Sale having an aggregate fair market value, as determined elects (or is required by the Company, taken together with all other Designated Non-cash Consideration received pursuant to this clause (E) that is at that time outstanding, not to exceed the greater terms of $225.0 million and 30.0% of LTM EBITDA for the most recently ended Test Period at the time of the receipt of |US-DOCS\143900591.2|| such Designated Non-cash Consideration (with the fair market value of each such item of Designated Non-cash Consideration being measured pursuant to this clause (E) at the Company’s option, either at the time of contractually agreeing to such Asset Sale or at the time received and, in either case, without giving effect to subsequent changes in value); andany Debt):
(Fi) any Investment, Capital Stock, assets, property or capital or other expenditure to Repay Senior Debt of the kind referred to in clauses (2) or (3) of Section 4.10(b) hereof shall be deemed to be Cash Equivalents for purposes of this provision and for no other purpose.
(b) Within 540 days after the receipt of any Net Proceeds of any Asset Sale (the “Proceeds Application Period”), the Company or any Subsidiary Guarantor (excluding, in any such Restricted Subsidiarycase, at their option, may apply an amount equal to the Net Proceeds from such Asset Sale,
(1) to reduce, prepay, repay or purchase:
(A) to the extent such Net Proceeds are from an Asset Sale of Collateral, Obligations with Pari Passu Lien Priority (including the Senior Credit Facilities or any Refinancing Indebtedness in respect thereof but other than Indebtedness Debt owed to the Company or any an Affiliate of the Company); or
(ii) to reinvest in Additional Assets (including by means of an Investment in Additional Assets by a Restricted Subsidiary with Net Available Cash received by the Company or another Restricted Subsidiary).
(c) Any Net Available Cash from an Asset Sale not applied in accordance with the preceding paragraph within 360 days from the date of the receipt of such Net Available Cash or that is not segregated from the general funds of the Company for investment in identified Additional Assets in respect of a project that shall have been commenced, andand for which binding contractual commitments have been entered into, in the case of revolving obligations, to correspondingly reduce commitments with respect thereto, provided that, prior to the extent either Issuer end of such 360-day period and that shall not have been completed or abandoned shall constitute "Excess Proceeds"; provided, further, that the amount of any Restricted Subsidiary will Net Available Cash applied to complete a Senior Notes Prepayment Offer which is commenced within 365 days from the date of the receipt of such Net Available Cash shall be deemed to have been applied within such 360-day period; provided, further, that the amount of any Net Available Cash that ceases to be so repay segregated as contemplated above and any Net Available Cash that is segregated in respect of a project that is abandoned or completed shall also constitute "Excess Proceeds" at the time any such Indebtedness Net Available Cash ceases to be so segregated or at the time the relevant project is so abandoned or completed, as applicable; provided further, however, that the amount of any Net Available Cash that continues to be segregated for investment and that is not actually reinvested within 24 months from the date of the receipt of such Net Available Cash shall also constitute "Excess Proceeds."
(other than d) When the Notesaggregate amount of Excess Proceeds exceeds $5.0 million (taking into account income earned on such Excess Proceeds, if any), the Issuers Company will be required to make an offer to repurchase (the "Prepayment Offer") the Notes, which offer shall reduce Obligations under be in the Notes amount of the Allocable Excess Proceeds (rounded to the nearest $1,000), on a pro rata basis byaccording to principal amount, at their option, (i) redeeming Notes as provided under Section 3.07 hereof (ii) purchasing Notes through open-market purchases or (iii) by making an offer (in accordance with the procedures set forth herein for an Asset Sale Offer) to all Holders to purchase their Notes at a purchase price equal to 100.0100% of the principal amount thereof, plus the amount of accrued but and unpaid interest, including Special Interest, if any, to the purchase date (subject to the right of Holders on the principal amount of relevant record date to receive interest due on the Notes to be repurchased to the date of repurchase;
(B) to the extent such Net Proceeds resulted from an Asset Sale not consisting of Collateral, Obligations in respect of other Secured Indebtedness (which may include the Notesrelevant interest payment date), and, in the case of revolving commitments, to correspondingly reduce commitments with respect thereto;
(C) Obligations in respect of the Notes or any other Indebtedness (other than Subordinated Indebtedness) of the Company or any Restricted Subsidiary, other than Indebtedness owed to the Company or any Restricted Subsidiary (and, in the case of revolving commitments, to correspondingly reduce commitments with respect thereto), provided that, to the extent either Issuer or any Restricted Subsidiary will so repay any such Indebtedness (other than the Notes), the Issuers will reduce Obligations under the Notes on a pro rata basis by, at their option, (i) redeeming Notes as provided under Section 3.07 hereof or (ii) by making an offer (in accordance with the procedures (including prorating in the event of oversubscription) set forth herein for an Asset Sale Offer) to all Holders to purchase their Notes at a purchase price equal to 100.0% of the principal amount thereof, plus the amount of accrued but unpaid interest, if any, on the principal amount of the Notes to be repurchased to the date of repurchase; or |US-DOCS\143900591.2||
(D) Obligations in respect of Indebtedness of a Non-Guarantor Subsidiary, other than Indebtedness owed to the Company or another Restricted Subsidiary; provided, in the case of clauses (A) or (C) above, (i) if an offer to purchase any Indebtedness of the Company or any Restricted Subsidiary is made, such amount will be deemed repaid to this Indenture. To the extent that any portion of the amount of Net Available Cash remains after compliance with the preceding sentence and provided that all Holders of Notes have been given the opportunity to tender their Notes for purchase in accordance with this Indenture, the Company or such offer, whether or not accepted Restricted Subsidiary may use such remaining amount for any purpose permitted by the holders of such Indebtednessthis Indenture, and no Net Proceeds in the amount of such offer Excess Proceeds will be deemed reset to exist following such offer, and (ii) if the holder of any Indebtedness of a Restricted Subsidiary of the Company declines the repayment of such Indebtedness owed to it from such Net Proceeds such amount will be deemed repaid to the extent of the declined Net Proceeds, or
(2) 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 that results in the Company or any Restricted Subsidiary, as the case may be, owning an amount of the Capital Stock of such business such that such business constitutes a Restricted Subsidiary or increases the Company’s direct or indirect percentage ownership of the Capital Stock of a Restricted Subsidiary;zero.
Appears in 1 contract
Sources: Indenture (Tousa Delaware Inc)
Asset Sales. (a) From and after the Completion Date, the The Company shall not consummatewill not, and shall will not permit any of its Restricted Subsidiaries to consummateto, consummate an Asset Sale, Sale unless:
(1) the Company (or such the Restricted Subsidiary, as the case may be, ) receives consideration at the time of such Asset Sale at least equal to the fair market value (as determined in good faith by the Company at the time of contractually agreeing to such Asset Sale) Fair Market Value of the assets or Equity Interests issued or sold or otherwise disposed of; and
(2) except in the case of a Permitted Asset Swap, if the property or assets sold or otherwise disposed of have a fair market value in excess of the greater of $375.0 million and 50.0% of LTM EBITDA for the most recently ended Test Period at the time of such disposition, (x) at least 75.075% of the consideration therefor received in respect of such Asset Sale by the Company or such Restricted Subsidiary, as the case may be, Subsidiary is in the form of cash or Cash Equivalents; provided that Equivalents or (y) the amount ofFair Market Value of all forms of consideration other than cash and Cash Equivalents received for all Asset Sales since the Issue Date does not exceed in the aggregate the greater of (i) 3% of the Adjusted Consolidated Net Tangible Assets of the Company at the time each determination is made or (ii) $20 million. For purposes of this provision, each of the following will be deemed to be cash:
(A) any liabilities, contingent or otherwiseas shown on the Company’s most recent consolidated balance sheet, of the Company or such any Restricted Subsidiary, Subsidiary (other than liabilities contingent liabilities, Subordinated Debt and any obligations in respect of preferred stock) or costs and expenses of operating the property that are by their terms subordinated to was the Notes or subject of the Asset Sale that are owed to the Company or a Restricted Subsidiary that (x) are assumed by the transferee of any such assets or Equity Interests pursuant to (i) a customary novation agreement (or a third party in connection with such transfer) or (y) are otherwise cancelled or terminated in connection other legal documentation with the transaction with such transferee (other than intercompany debt owed to the Company or its Restricted Subsidiariessame effect) and, in each case, for which the Company and all that includes a full release of its Restricted Subsidiaries have been validly released,
(B) any securities, notes or other obligations or assets received by the Company or such Restricted Subsidiary from any and all liability therefor or (ii) an assignment agreement that includes, in lieu of such release, the agreement of the transferee that are converted by or its parent company to indemnify and hold harmless the Company or such Restricted Subsidiary into cash from and against any loss, liability or Cash Equivalents (to the extent of the cash or Cash Equivalents received) within 180 days following the closing other cost in respect of such Asset Saleassumed liability;
(B) Liquid Securities;
(C) Indebtedness Promissory notes or other obligations of any Restricted Subsidiary that ceases to be a Restricted Subsidiary as a result of such the transferee in the Asset Sale (other than intercompany debt owed that are converted to the Company cash or any Restricted Subsidiary), to the extent that the Company and each other Restricted Subsidiary are released from any guarantee of payment Cash Equivalents within 180 days of the principal amount of such Indebtedness in connection with such Asset Sale in accordance with the terms of this Indenture;
(D) consideration consisting of Indebtedness of the Issuers or a Guarantor (other than intercompany debt owed to the Company or any Restricted Subsidiary and other than Subordinated Indebtedness) received after the Issue Date from Persons who are not the Company, Holdings or any Restricted Subsidiary;
(E) any Designated Non-cash Consideration received by the Company or such Restricted Subsidiary in such Asset Sale having an aggregate fair market value, as determined by the Company, taken together with all other Designated Non-cash Consideration received pursuant to this clause (E) that is at that time outstanding, not to exceed the greater of $225.0 million and 30.0% of LTM EBITDA for the most recently ended Test Period at the time of the receipt of |US-DOCS\143900591.2|| such Designated Non-cash Consideration (with the fair market value of each such item of Designated Non-cash Consideration being measured pursuant to this clause (E) at the Company’s option, either at the time of contractually agreeing to such Asset Sale or at the time received and, in either case, without giving effect to subsequent changes in value)Sale; and
(F) any Investment, Capital Stock, assets, property or capital or other expenditure of the kind referred to in clauses (2) or (3) of Section 4.10(b) hereof shall be deemed to be Cash Equivalents for purposes of this provision and for no other purpose.
(b) Within 540 days after the receipt of any Net Proceeds of any Asset Sale (the “Proceeds Application Period”), the Company or such Restricted Subsidiary, at their option, may apply an amount equal to the Net Proceeds from such Asset Sale,
(1) to reduce, prepay, repay or purchase:
(A) to the extent such Net Proceeds are from an Asset Sale of Collateral, Obligations with Pari Passu Lien Priority (including the Senior Credit Facilities or any Refinancing Indebtedness in respect thereof but other than Indebtedness owed to the Company or any Restricted Subsidiary), and, in the case of revolving obligations, to correspondingly reduce commitments with respect thereto, provided that, to the extent either Issuer or any Restricted Subsidiary will so repay any such Indebtedness (other than the Notes), the Issuers shall reduce Obligations under the Notes on a pro rata basis by, at their option, (i) redeeming Notes as provided under Section 3.07 hereof (ii) purchasing Notes through open-market purchases or (iii) by making an offer (in accordance with the procedures set forth herein for an Asset Sale Offer) to all Holders to purchase their Notes at a purchase price equal to 100.0% of the principal amount thereof, plus the amount of accrued but unpaid interest, if any, on the principal amount of the Notes to be repurchased to the date of repurchase;
(B) to the extent such Net Proceeds resulted from an Asset Sale not consisting of Collateral, Obligations in respect of other Secured Indebtedness (which may include the Notes), and, in the case of revolving commitments, to correspondingly reduce commitments with respect thereto;
(C) Obligations in respect of the Notes or any other Indebtedness (other than Subordinated Indebtedness) of the Company or any Restricted Subsidiary, other than Indebtedness owed to the Company or any Restricted Subsidiary (and, in the case of revolving commitments, to correspondingly reduce commitments with respect thereto), provided that, to the extent either Issuer or any Restricted Subsidiary will so repay any such Indebtedness (other than the Notes), the Issuers will reduce Obligations under the Notes on a pro rata basis by, at their option, (i) redeeming Notes as provided under Section 3.07 hereof or (ii) by making an offer (in accordance with the procedures set forth herein for an Asset Sale Offer) to all Holders to purchase their Notes at a purchase price equal to 100.0% of the principal amount thereof, plus the amount of accrued but unpaid interest, if any, on the principal amount of the Notes to be repurchased to the date of repurchase; or |US-DOCS\143900591.2||
(D) Obligations in respect of Indebtedness of a Non-Guarantor Subsidiary, other than Indebtedness owed to the Company or another Restricted Subsidiary; provided, in the case of clauses (A) or (C) above, (i) if an offer to purchase any Indebtedness of the Company or any Restricted Subsidiary is made, such amount will be deemed repaid to the extent of the amount of such offer, whether or not accepted by the holders of such Indebtedness, and no Net Proceeds in the amount of such offer will be deemed to exist following such offer, and (ii) if the holder of any Indebtedness of a Restricted Subsidiary of the Company declines the repayment of such Indebtedness owed to it from such Net Proceeds such amount will be deemed repaid to the extent of the declined Net Proceeds, or
(2) 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 that results in the Company or any Restricted Subsidiary, as the case may be, owning an amount of the Capital Stock of such business such that such business constitutes a Restricted Subsidiary or increases the Company’s direct or indirect percentage ownership of the Capital Stock of a Restricted Subsidiary;
Appears in 1 contract
Sources: Indenture (SYNERGY RESOURCES Corp)
Asset Sales. (a) From and after the Completion Date, the The Company shall not consummatewill not, and shall will not permit any of its Restricted Subsidiaries to consummateto, consummate an Asset Sale, Sale unless:
(1) the Company (or such 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 (as determined in good faith by the Company at the time of contractually agreeing to such Asset Sale) Fair Market Value of the assets or Equity Interests issued or sold or otherwise disposed of; and
(2) except in the case of a Permitted Asset Swap, if the property or assets sold or otherwise disposed of have a fair market value in excess of the greater of $375.0 million and 50.0% of LTM EBITDA for the most recently ended Test Period at the time of such disposition, (i) at least 75.075% of the consideration therefor received in the Asset Sale by the Company or such Restricted Subsidiary, as the case may be, Subsidiary is in the form of cash or Cash Equivalents; provided that (ii) the amount ofFair Market Value of all forms of consideration other than cash received for all Asset Sales since the Issue Date does not exceed in the aggregate 10% of the Adjusted Consolidated Net Tangible Assets of the Company at the time each determination is made. For purposes of this provision, each of the following will be deemed to be cash:
(Aa) any liabilities, contingent or otherwiseas shown on the Company’s most recent consolidated balance sheet, of the Company or such any Restricted Subsidiary, Subsidiary (other than contingent liabilities and liabilities that are by their terms subordinated to the Notes or any Note Guarantee) that are owed to the Company or a Restricted Subsidiary that (x) are assumed by the transferee of any such assets (or pursuant to a third party in connection with such transfer) or (y) are otherwise cancelled or terminated in connection with the transaction with such transferee (other than intercompany debt owed to customary novation agreement that releases the Company or its such Restricted Subsidiaries) Subsidiary from further liability; and, in each case, for which the Company and all of its Restricted Subsidiaries have been validly released,
(Bb) any securities, notes or other obligations or assets received by the Company or any such Restricted Subsidiary from such transferee that are converted by the Company or such Restricted Subsidiary into cash or Cash Equivalents (within 180 days after the date of the Asset Sale, to the extent of the cash or Cash Equivalents received) within 180 days following the closing of such Asset Salereceived in that conversion;
(C) Indebtedness of any Restricted Subsidiary that ceases to be a Restricted Subsidiary as a result of such Asset Sale (other than intercompany debt owed to the Company or any Restricted Subsidiary), to the extent that the Company and each other Restricted Subsidiary are released from any guarantee of payment of the principal amount of such Indebtedness in connection with such Asset Sale in accordance with the terms of this Indenture;
(D) consideration consisting of Indebtedness of the Issuers or a Guarantor (other than intercompany debt owed to the Company or any Restricted Subsidiary and other than Subordinated Indebtedness) received after the Issue Date from Persons who are not the Company, Holdings or any Restricted Subsidiary;
(Ec) any Designated Non-cash Consideration received by the Company stock or such Restricted Subsidiary in such Asset Sale having an aggregate fair market value, as determined by the Company, taken together with all other Designated Non-cash Consideration received pursuant to this clause (E) that is at that time outstanding, not to exceed the greater of $225.0 million and 30.0% of LTM EBITDA for the most recently ended Test Period at the time of the receipt of |US-DOCS\143900591.2|| such Designated Non-cash Consideration (with the fair market value of each such item of Designated Non-cash Consideration being measured pursuant to this clause (E) at the Company’s option, either at the time of contractually agreeing to such Asset Sale or at the time received and, in either case, without giving effect to subsequent changes in value); and
(F) any Investment, Capital Stock, assets, property or capital or other expenditure assets of the kind referred to in clauses (2) or (34) of Section 4.10(b3.7(b) hereof shall be deemed to be Cash Equivalents for purposes of this provision and for no other purpose.below; and
(bd) Within 540 days after the receipt of any Net Proceeds of any Asset Sale (the “Proceeds Application Period”), the Company or such Restricted Subsidiary, at their option, may apply an amount equal to the Net Proceeds from such Asset Sale,
(1) to reduce, prepay, repay or purchase:
(A) to the extent such Net Proceeds are from an Asset Sale of Collateral, Obligations with Pari Passu Lien Priority (including the Senior Credit Facilities or any Refinancing Indebtedness in respect thereof but other than Indebtedness owed to the Company or any Restricted Subsidiary), and, in the case of revolving obligations, to correspondingly reduce commitments with respect thereto, provided that, to the extent either Issuer or any Restricted Subsidiary will so repay any such Indebtedness (other than the Notes), the Issuers shall reduce Obligations under the Notes on a pro rata basis by, at their option, (i) redeeming Notes as provided under Section 3.07 hereof (ii) purchasing Notes through open-market purchases or (iii) by making an offer (in accordance with the procedures set forth herein for an Asset Sale Offer) to all Holders to purchase their Notes at a purchase price equal to 100.0% of the principal amount thereof, plus the amount of accrued but unpaid interest, if any, on the principal amount of the Notes to be repurchased to the date of repurchase;
(B) to the extent such Net Proceeds resulted from an Asset Sale not consisting of Collateral, Obligations in respect of other Secured Indebtedness (which may include the Notes), and, in the case of revolving commitments, to correspondingly reduce commitments with respect thereto;
(C) Obligations in respect of the Notes or any other Indebtedness (other than Subordinated Indebtedness) of the Company or any Restricted Subsidiary, other than Indebtedness owed to the Company or any Restricted Subsidiary (and, in the case of revolving commitments, to correspondingly reduce commitments with respect thereto), provided that, to the extent either Issuer or any Restricted Subsidiary will so repay any such Indebtedness (other than the Notes), the Issuers will reduce Obligations under the Notes on a pro rata basis by, at their option, (i) redeeming Notes as provided under Section 3.07 hereof or (ii) by making an offer (in accordance with the procedures set forth herein for an Asset Sale Offer) to all Holders to purchase their Notes at a purchase price equal to 100.0% of the principal amount thereof, plus the amount of accrued but unpaid interest, if any, on the principal amount of the Notes to be repurchased to the date of repurchase; or |US-DOCS\143900591.2||
(D) Obligations in respect of Indebtedness accounts receivable of a Non-Guarantor Subsidiary, other than Indebtedness owed to the Company or another Restricted Subsidiary; provided, in the case of clauses (A) or (C) above, (i) if an offer to purchase any Indebtedness of the Company or any Restricted Subsidiary is made, such amount will be deemed repaid to the extent of the amount of such offer, whether or not accepted business retained by the holders of such Indebtedness, and no Net Proceeds in the amount of such offer will be deemed to exist following such offer, and (ii) if the holder of any Indebtedness of a Restricted Subsidiary of the Company declines the repayment of such Indebtedness owed to it from such Net Proceeds such amount will be deemed repaid to the extent of the declined Net Proceeds, or
(2) 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 that results in the Company or any Restricted Subsidiary, as the case may be, owning an amount following the sale of such business, provided that such accounts receivable are not (1) past due more than 90 days and (2) do not have a payment date greater than 120 days from the date of the Capital Stock invoice creating such accounts receivable.
(b) Within 360 days after the receipt of any Net Proceeds from an Asset Sale, the Company (or the applicable Restricted Subsidiary, as the case may be) may apply such business such that such business constitutes a Restricted Subsidiary or increases Net Proceeds at its option to any combination of the following:
(1) to repay Senior Debt;
(2) to invest in Additional Assets;
(3) to make capital expenditures in respect of the Company’s direct or indirect percentage ownership its Restricted Subsidiaries’ Oil and Gas Business; or
(4) enter into a bona fide binding contract with a Person other than an Affiliate of the Capital Stock Company to apply the Net Proceeds pursuant to clauses (2) or (3) above, provided that such binding contract shall be treated as a permitted application of the Net Proceeds from the date of such contract until the earlier of
(i) the date on which such acquisition or expenditure is consummated, and
(ii) the 180th day following the expiration of the aforementioned 360-day period.
(c) Pending the final application of any Net Proceeds, the Company or any such Restricted Subsidiary 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 preceding Section 3.7(b) will constitute “Excess Proceeds.”
(d) On the 361st day after the Asset Sale (or, at the Company’s option, any earlier date), if the aggregate amount of Excess Proceeds then exceeds $20.0 million , the Company 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 or redeem with the proceeds of sales of assets, to purchase the maximum principal amount of Notes and such other pari passu Indebtedness that may be purchased out of the Excess Proceeds. The offer price in any Asset Sale 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 the Asset Sale Payment Date is on or after an interest record date and on or before the related interest payment date, any accrued and unpaid interest (including Special Interest, if any) will be paid to the Person in whose name a Restricted Subsidiary;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. 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 will select the Notes 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.
(e) The Asset Sale Offer will remain open for a period of 20 Business Days following its commencement, except to the extent that a longer period is required by applicable law (the “Asset Sale Offer Period”). No later than five Business Days after the termination of the Asset Sale Offer Period (the “Asset Sale Payment Date”), the Company will purchase the principal amount of Notes and other pari passu Indebtedness required to be purchased pursuant to this covenant (the “Asset Sale Offer Amount”) or, if less than the Asset Sale Offer Amount has been so validly tendered, all Notes and other pari passu Indebtedness validly tendered in response to the Asset Sale Offer. On or before the Asset Sale Payment Date, the Company will, to the extent lawful, accept for payment, on a pro rata basis to the extent necessary, the Asset Sale Offer Amount of Notes and other pari passu Indebtedness or portions thereof so validly tendered and not properly withdrawn pursuant to the Asset Sale Offer, or if less than the Asset Sale Offer Amount has been validly tendered and not properly withdrawn, all Notes and other pari passu Indebtedness so validly tendered and not properly withdrawn. The Company will deliver to the Trustee an Officers’ Certificate stating that such Notes or portions thereof were accepted for payment by the Company in accordance with the terms of this covenant; and, in addition, the Company will make such deliveries of all certificates and notes as are required by the agreements governing the other pari passu Indebtedness. The Company or the Paying Agent, as the case may be, will promptly (but in any case not later than five Business Days after the termination of the Asset Sale Offer Period) mail or deliver to each tendering Holder of Notes, an amount equal to the purchase price of the Notes so validly tendered and not properly withdrawn by such Holder and accepted by the Company for purchase, and the Company will promptly issue a new Note, and the Trustee, upon delivery of an Officers’ Certificate from the Company, will authenticate and mail or deliver such new Note to such Holder, in a principal amount equal to any unpurchased portion of the Note surrendered. In addition, the Company will take any and all other actions required by the agreements governing the other pari passu Indebtedness. Any Note not so accepted will 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 or as soon as practicable after the Asset Sale Payment Date.
(f) 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 those laws and regulations are applicable in connection with each repurchase of Notes pursuant to an Asset Sale Offer. To the extent that the provisions of any securities laws or regulations conflict with the Asset Sale provisions hereunder, the Company will comply with the applicable securities laws and regulations and will not be deemed to have breached its obligations under the Asset Sale provisions hereunder by virtue of such compliance.
(g) The Trustee shall be under no obligation to ascertain the occurrence of an Asset Sale, or to determine or calculate Excess Proceeds, the Asset Sale Offer Period, the Asset Sale Payment Date or the Asset Sale Offer Amount, or give any notice with respect thereto. The Trustee may conclusively assume, in the absence of written notice to the contrary from the Company or a Holder or Holders of Notes, that no Asset Sale has occurred.
Appears in 1 contract
Asset Sales. (a) From and after the Completion Date, the The Company shall not consummatenot, and shall not permit any of its Restricted Subsidiaries to consummateto, consummate an Asset Sale, Sale unless:
(1i) the Company (or such the Restricted Subsidiary, as the case may be, ) receives consideration at the time of such Asset Sale at least equal to the fair market value of the assets or Equity Interests issued or sold or otherwise disposed of (as determined in good faith by the Company at Company);
(ii) such fair market value is determined by the time Company's Board of contractually agreeing to such Asset Sale) Directors and evidenced by a resolution of the assets sold or otherwise disposed ofBoard of Directors set forth in an Officers' Certificate delivered to the Trustee; and
(2iii) except in the case of a Permitted Asset Swap, if the property or assets sold or otherwise disposed of have a fair market value in excess of the greater of $375.0 million and 50.0% of LTM EBITDA for the most recently ended Test Period at the time of such disposition, at least 75.075% of the consideration therefor received by the Company or such Restricted Subsidiary, as the case may be, Subsidiary is in the form of cash or Cash Equivalents; provided that . For purposes of this provision, each of the amount offollowing shall be deemed to be cash:
(A) any liabilities, contingent liabilities (as shown on the Company's or otherwise, such Restricted Subsidiary's most recent balance sheet) of the Company or such any Restricted Subsidiary, Subsidiary (other than contingent liabilities and liabilities that are by their terms subordinated to the Notes or any Guaranty) that are owed to the Company or a Restricted Subsidiary that (x) are assumed by the transferee of any such assets (or pursuant to a third party in connection with such transfer) or (y) are otherwise cancelled or terminated in connection with the transaction with such transferee (other than intercompany debt owed to customary novation agreement that releases the Company or its such Restricted Subsidiaries) and, in each case, for which the Company and all of its Restricted Subsidiaries have been validly released,Subsidiary from further liability;
(B) any securities, notes or other obligations or assets received by the Company or any such Restricted Subsidiary from such transferee that are converted by the Company or such Restricted Subsidiary into cash or Cash Equivalents within 180 days after the consummation of such Asset Sale (to the extent of the cash or Cash Equivalents received) within 180 days following the closing of such Asset Sale;received in that conversion); and
(C) Indebtedness of any Restricted Subsidiary that ceases to be a Restricted Subsidiary as a result of such Asset Sale (other than intercompany debt owed to the Company or any Restricted Subsidiary), to the extent that the Company and each other Restricted Subsidiary are released from any guarantee of payment of the principal amount of such Indebtedness in connection with such Asset Sale in accordance with the terms of this Indenture;
(D) consideration consisting of Indebtedness of the Issuers or a Guarantor (other than intercompany debt owed to the Company or any Restricted Subsidiary and other than Subordinated Indebtedness) received after the Issue Date from Persons who are not the Company, Holdings or any Restricted Subsidiary;
(E) any Designated Non-cash Noncash Consideration received by the Company or such any of its Restricted Subsidiary Subsidiaries in such Asset Sale having an Sale; PROVIDED that the aggregate fair market value, value (as determined by the Companyabove) of such Designated Noncash Consideration, taken together with the fair market value at the time of receipt of all other Designated Non-cash Noncash Consideration received pursuant to this clause (Ec) that less the amount of Net Proceeds previously realized in cash from prior Designated Noncash Consideration, is at that time outstanding, not to exceed the greater of $225.0 million and 30.0less than 5.0% of LTM EBITDA for the most recently ended Test Period Total Assets at the time of the receipt of |US-DOCS\143900591.2|| such Designated Non-cash Noncash Consideration (with the fair market value of each such item of Designated Non-cash Noncash Consideration being measured pursuant to this clause (E) at the Company’s option, either at the time of contractually agreeing to such Asset Sale or at the time received and, in either case, and without giving effect to subsequent changes in value); and
(F) any Investment, Capital Stock, assets, property or capital or other expenditure of the kind referred to in clauses (2) or (3) of Section 4.10(b) hereof shall be deemed to be Cash Equivalents for purposes of this provision and for no other purpose.
(b) . Within 540 365 days after the receipt of any Net Proceeds of any from an Asset Sale (the “Proceeds Application Period”)Sale, the Company or such Restricted Subsidiary, at their option, may apply an amount equal to the such Net Proceeds from such Asset Sale,
(1) to reduce, prepay, repay or purchaseat its option:
(Ai) to the extent repay Senior Debt, and if such Net Proceeds are from an Asset Sale of Collateral, Obligations with Pari Passu Lien Priority (including the Senior Credit Facilities or any Refinancing Indebtedness in respect thereof but other than Indebtedness owed to the Company or any Restricted Subsidiary), and, in the case of Debt repaid is revolving obligations, to correspondingly reduce commitments with respect thereto, provided that, to the extent either Issuer or any Restricted Subsidiary will so repay any such Indebtedness (other than the Notes), the Issuers shall reduce Obligations under the Notes on a pro rata basis by, at their option, (i) redeeming Notes as provided under Section 3.07 hereof (ii) purchasing Notes through open-market purchases or (iii) by making an offer (in accordance with the procedures set forth herein for an Asset Sale Offer) to all Holders to purchase their Notes at a purchase price equal to 100.0% of the principal amount thereof, plus the amount of accrued but unpaid interest, if any, on the principal amount of the Notes to be repurchased to the date of repurchase;
(B) to the extent such Net Proceeds resulted from an Asset Sale not consisting of Collateral, Obligations in respect of other Secured Indebtedness (which may include the Notes), and, in the case of revolving commitmentscredit Indebtedness, to correspondingly reduce commitments with respect thereto;
(Cii) Obligations in respect to acquire all or substantially all of the assets of, or a majority of the Voting Stock of, another Permitted Business;
(iii) to make a capital expenditure; and/or
(iv) to acquire other long-term assets that are used or useful in a Permitted Business. Pending the final application of any such Net Proceeds, the Company may temporarily reduce revolving credit borrowings or otherwise invest such Net Proceeds in any manner that is not prohibited by this Indenture. Any Net Proceeds from Asset Sales that are not applied or invested as provided in the preceding paragraph will constitute "Excess Proceeds." When the aggregate amount of Excess Proceeds exceeds $20.0 million, the Company will make an Asset Sale Offer to all Holders of Notes or any 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 to purchase the maximum principal amount of Notes and such other than Subordinated Indebtedness) PARI PASSU Indebtedness that may be purchased out of the Company or Excess Proceeds. The offer price in any Restricted SubsidiaryAsset Sale Offer will be equal to 100% of the principal amount plus accrued and unpaid interest and Liquidated Damages, other than Indebtedness owed to the Company or any Restricted Subsidiary (and, in the case of revolving commitments, to correspondingly reduce commitments with respect thereto), provided thatif any, to the extent either Issuer or date of purchase, and will be payable in cash. If any Restricted Subsidiary will so repay any such Indebtedness (other than the Notes)Excess Proceeds remain after consummation of an Asset Sale Offer, the Issuers will reduce Obligations under Company may use such Excess Proceeds for any purpose not otherwise prohibited by this Indenture. If the aggregate principal amount of Notes and such other 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 by, at their option, (i) redeeming Notes as provided under Section 3.07 hereof or (ii) by making an offer (in accordance with the procedures set forth herein for an Asset Sale Offer) to all Holders to purchase their Notes at a purchase price equal to 100.0% of the principal amount thereof, plus the amount of accrued but unpaid interest, if any, based on the principal amount of Notes and such other PARI PASSU Indebtedness tendered. Upon completion of each Asset Sale Offer, the Notes to amount of Excess Proceeds shall be repurchased to reset at zero. The Company will comply with the date requirements of repurchase; or |US-DOCS\143900591.2||
(D) Obligations in respect of Indebtedness of a Non-Guarantor Subsidiary, Rule 14e-1 under the Exchange Act and any other than Indebtedness owed to the Company or another Restricted Subsidiary; provided, in the case of clauses (A) or (C) above, (i) if an offer to purchase any Indebtedness of the Company or any Restricted Subsidiary is made, such amount will be deemed repaid securities laws and regulations thereunder to the extent such laws and regulations are applicable in connection with each repurchase of Notes pursuant to an Asset Sale Offer. To the amount extent that the provisions of such offerany securities laws or regulations conflict with the Asset Sales provisions of this Indenture, whether or the Company will comply with the applicable securities laws and regulations and will not accepted by the holders of such Indebtedness, and no Net Proceeds in the amount of such offer will be deemed to exist following such offer, and (ii) if have breached its obligations under the holder Asset Sale provisions of any Indebtedness of a Restricted Subsidiary of the Company declines the repayment this Indenture by virtue of such Indebtedness owed to it from such Net Proceeds such amount will be deemed repaid to the extent of the declined Net Proceeds, or
(2) 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 that results in the Company or any Restricted Subsidiary, as the case may be, owning an amount of the Capital Stock of such business such that such business constitutes a Restricted Subsidiary or increases the Company’s direct or indirect percentage ownership of the Capital Stock of a Restricted Subsidiary;conflict.
Appears in 1 contract
Sources: Indenture (Mark I Molded Plastics of Tennessee Inc)
Asset Sales. (a) From and after the Completion Date, Neither the Company shall not consummate, and shall not permit nor any of its Restricted Subsidiaries to consummate, an shall engage in any Asset Sale, unless:
(1i) the Company or such Restricted Subsidiary, as the case may be, receives consideration at the time of such Asset Sale at least equal to the fair market value Fair Market Value (as determined evidenced by a resolution of the Board of Directors set forth in good faith by an Officers' Certificate delivered to the Company at the time of contractually agreeing to such Asset SaleTrustee) of the assets sold or otherwise disposed of; and
(2ii) except in the case of a Permitted Asset Swap, if the property or assets sold or otherwise disposed of have a fair market value in excess of the greater of $375.0 million and 50.0% of LTM EBITDA for the most recently ended Test Period at the time of such disposition, at least 75.020% of the consideration therefor received by the Company or such Restricted Subsidiary, as the case may be, Subsidiary is in the form of cash Cash or Cash Equivalents; provided provided, however, that if the Fair Market Value of the assets sold or otherwise disposed of exceeds $10,000,000, at least 75% of the consideration therefor received by the Company or such Restricted Subsidiaries is in the form of Cash or Cash Equivalents; provided, further, however, that the amount of:
of (Aa) any liabilities, contingent liabilities (as shown on the Company's or otherwise, such Restricted Subsidiary's most recent balance sheet or in the notes thereto) of the Company or such Restricted Subsidiary, Subsidiary (other than liabilities that are by their terms subordinated in right of payment to the Notes or Notes) that are owed to the Company or a Restricted Subsidiary that (x) are assumed by the transferee of any such assets and (or a third party in connection with such transfer) or (y) are otherwise cancelled or terminated in connection with the transaction with such transferee (other than intercompany debt owed to the Company or its Restricted Subsidiaries) and, in each case, for which the Company and all of its Restricted Subsidiaries have been validly released,
(Bb) any securities, notes or other obligations or assets received by the Company or such Restricted Subsidiary from such transferee that are converted within 60 days by the Company or such Restricted Subsidiary into cash or Cash Equivalents (to the extent of the cash or Cash Equivalents so received) within 180 days following the closing of such Asset Sale;
(C) Indebtedness of any Restricted Subsidiary that ceases to be a Restricted Subsidiary as a result of such Asset Sale (other than intercompany debt owed to the Company or any Restricted Subsidiary), to the extent that the Company and each other Restricted Subsidiary are released from any guarantee of payment of the principal amount of such Indebtedness in connection with such Asset Sale in accordance with the terms of this Indenture;
(D) consideration consisting of Indebtedness of the Issuers or a Guarantor (other than intercompany debt owed to the Company or any Restricted Subsidiary and other than Subordinated Indebtedness) received after the Issue Date from Persons who are not the Company, Holdings or any Restricted Subsidiary;
(E) any Designated Non-cash Consideration received by the Company or such Restricted Subsidiary in such Asset Sale having an aggregate fair market value, as determined by the Company, taken together with all other Designated Non-cash Consideration received pursuant to this clause (E) that is at that time outstanding, not to exceed the greater of $225.0 million and 30.0% of LTM EBITDA for the most recently ended Test Period at the time of the receipt of |US-DOCS\143900591.2|| such Designated Non-cash Consideration (with the fair market value of each such item of Designated Non-cash Consideration being measured pursuant to this clause (E) at the Company’s option, either at the time of contractually agreeing to such Asset Sale or at the time received and, in either case, without giving effect to subsequent changes in value); and
(F) any Investment, Capital Stock, assets, property or capital or other expenditure of the kind referred to in clauses (2) or (3) of Section 4.10(b) hereof shall be deemed to be Cash Equivalents cash for purposes of this provision and for no other purpose.
clause (bii) above. Within 540 180 days after the receipt of any the Net Proceeds of any from an Asset Sale (the “Proceeds Application Period”)Sale, the Company or such Restricted Subsidiary, at their option, may shall apply an amount equal to the Net Proceeds from such Asset Sale,
(1) , to reducerepay the Term Loan, prepay, repay or purchase:
(A) and to the extent such Indebtedness is paid in full, to repay the Revolver (but shall not permanently reduce the commitment thereunder). Pending the final application of any such Net Proceeds, the Company may invest such Net Proceeds are in any manner that is not prohibited by this Indenture. Any Net Proceeds from an the Asset Sale that are not applied as provided in the first sentence of Collateralthis paragraph will be deemed to constitute "Excess Proceeds." When the aggregate cumulative amount of Excess Proceeds exceeds $5,000,000, Obligations the Company shall make an offer to all Holders of Notes to purchase the maximum principal amount of Notes that may be purchased with Pari Passu Lien Priority (including the Senior Credit Facilities or any Refinancing Indebtedness Excess Proceeds, at an offer price in respect cash in an amount equal to 100% of the principal amount thereof but other than Indebtedness owed plus accrued and unpaid interest thereon to the Company or any Restricted Subsidiary)date of purchase, and, in the case of revolving obligations, to correspondingly reduce commitments with respect thereto, provided that, to the extent either Issuer or any Restricted Subsidiary will so repay any such Indebtedness (other than the Notes), the Issuers shall reduce Obligations under the Notes on a pro rata basis by, at their option, (i) redeeming Notes as provided under Section 3.07 hereof (ii) purchasing Notes through open-market purchases or (iii) by making an offer (in accordance with the procedures set forth herein for in this Section 4.20 (an "Asset Sale Offer"). To the extent that the aggregate principal amount of Notes tendered pursuant to an Asset Sale Offer) Offer is less than the Excess Proceeds, the Company may use such deficiency for general corporate purposes in any manner not prohibited by this Indenture. If the aggregate principal amount of Notes surrendered by Holders thereof exceeds the amount of Excess Proceeds, the Trustee shall select the Notes to be purchased on a pro rata basis. Upon completion of such offer to purchase, the amount of Excess Proceeds shall be reset at zero. In the event that the Company shall be required to commence an Asset Sale Offer to all Holders to purchase their Notes pursuant to this Section 4.20, it shall follow the procedures specified below. The Asset Sale Offer shall be commenced within 30 days following the first date on which the Company has cumulative Excess Proceeds of at least $5,000,000 and remain open for a purchase price equal period of at least 30 and not more than 40 days, except to 100.0% the extent that a longer period is required by applicable law (the "Repurchase Offer Period"). No later than five Business Days after the termination of the principal amount thereofOffer Period (the "Repurchase Date"), plus the amount of accrued but unpaid interest, if any, on Company shall purchase the principal amount of the Notes required to be repurchased purchased pursuant to this Section 4.20 hereof (the "Repurchase Price") or, if Notes having an aggregate principal amount less than the amount of Excess Proceeds subject to such Asset Sale Offer have been tendered, all Notes tendered in response to the Asset Sale Offer. Payment for any Notes so purchased shall be made in the same manner as interest payments are made. If the Repurchase Date is on or after an interest record date of repurchase;
(B) and on or before the related interest payment date, any accrued and unpaid interest shall be paid to the extent Person in whose name a Note is registered at the close of business on such Net Proceeds resulted from an record date, and no additional interest shall be payable to Holders who tender Notes pursuant to the Asset Sale not consisting Offer. Upon the commencement of Collateral, Obligations in respect of other Secured Indebtedness (which may include the Notes), and, in the case of revolving commitments, to correspondingly reduce commitments with respect thereto;
(C) Obligations in respect of the Notes or any other Indebtedness (other than Subordinated Indebtedness) of the Company or any Restricted Subsidiary, other than Indebtedness owed to the Company or any Restricted Subsidiary (and, in the case of revolving commitments, to correspondingly reduce commitments with respect thereto), provided that, to the extent either Issuer or any Restricted Subsidiary will so repay any such Indebtedness (other than the Notes), the Issuers will reduce Obligations under the Notes on a pro rata basis by, at their option, (i) redeeming Notes as provided under Section 3.07 hereof or (ii) by making an offer (in accordance with the procedures set forth herein for an Asset Sale Offer) , the Company shall send, by first class mail, a notice to the Trustee or to each of the Holders, with a copy to the Trustee. The notice shall contain all instructions and materials necessary to enable such Holders to tender Notes pursuant to the Asset Sale Offer. The Asset Sale Offer shall be made to all Holders to purchase their Notes at a purchase price equal to 100.0% Holders. The notice, which shall govern the terms of the principal amount thereofAsset Sale Offer, plus shall state:
(a) that the amount Asset Sale Offer is being made pursuant to this Section 4.20 and the length of accrued but unpaid time the Asset Sale Offer shall remain open;
(b) the Asset Sale Offer, the Repurchase Price and the Repurchase Date;
(c) that any Note not tendered or accepted for payment shall continue to accrue interest;
(d) that, unless the Company defaults in making such payment, any Note accepted for payment pursuant to the Asset Sale Offer shall cease to accrue interest after the Repurchase Date;
(e) that Holders electing to have a Note purchased pursuant to a Asset Sale Offer may only elect to have all of such Note purchased and may not elect to have only a portion of such Note purchased;
(f) 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 Note completed, or transfer by book-entry transfer, to the Company, a depositary, if anyappointed by the Company, on or a Paying Agent at the principal amount of address specified in the Notes to be repurchased to notice at least three days before the date of repurchase; or |US-DOCS\143900591.2||Asset Sale Purchase Date;
(Dg) Obligations in respect of Indebtedness of a Non-Guarantor Subsidiary, other than Indebtedness owed that Holders shall be entitled to the Company or another Restricted Subsidiary; provided, in the case of clauses (A) or (C) above, (i) if an offer to purchase any Indebtedness of the Company or any Restricted Subsidiary is made, such amount will be deemed repaid to the extent of the amount of such offer, whether or not accepted by the holders of such Indebtedness, and no Net Proceeds in the amount of such offer will be deemed to exist following such offer, and (ii) withdraw their election if the holder of any Indebtedness of a Restricted Subsidiary of Company, the Company declines Depositary or the repayment of such Indebtedness owed to it from such Net Proceeds such amount will be deemed repaid to the extent of the declined Net Proceeds, or
(2) 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 that results in the Company or any Restricted SubsidiaryPaying Agent, as the case may be, owning an receives, not later than the expiration of the Repurchase Offer Period, a telegram, telex, facsimile transmission or letter setting forth the name of the Holder, the principal amount of the Capital Stock of such business such Note the Holder delivered for purchase and a statement that such business constitutes Holder is withdrawing his election to have such Note purchased;
(h) that, if the aggregate principal amount of Notes surrendered by Holders exceeds the Repurchase Price, the Trustee shall select the Notes to be purchased on a Restricted Subsidiary pro rata basis (with such adjustments as may be deemed appropriate by the Trustee so that only Notes in denominations of $1,000, or increases integral multiples thereof, shall be purchased); and
(i) that Holders whose Notes were purchased only in part shall be issued new Notes equal in principal amount to the Company’s direct or indirect percentage ownership unpurchased portion of the Capital Stock Notes surrendered (or transferred by book-entry transfer). The Company, the Depositary or the Paying Agent, as the case may be, shall promptly (but in any case not later than five days after the Repurchase 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 shall promptly issue a Restricted Subsidiary;new Note, and the Trustee, upon written order from the Company shall authenticate and mail or deliver 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 shall publicly announce the results of the Asset Sale Offer on the Repurchase Date. The Company shall comply with the requirements of Rule 14e-1 under the Exchange Act and any other securities laws, rules and regulations thereunder to the extent such laws, rules and regulations are applicable in connection with the repurchase of Notes pursuant to Asset Sale Offer.
Appears in 1 contract
Sources: Indenture (Cast Alloys Inc)
Asset Sales. (a) From and after the Completion Date, the The Company shall not consummatenot, and shall not permit any of its Restricted Subsidiaries to consummateto, consummate an Asset Sale, Sale unless:
(1i) the Company (or such the Restricted Subsidiary, as the case may be, ) receives consideration at the time of such Asset Sale at least equal to the fair market value (as determined in good faith by the Company at the time of contractually agreeing to such Asset Sale) Fair Market Value of the assets or Equity Interests issued or sold or otherwise disposed of; and
(2ii) except in the case of a Permitted Asset Swap, if the property or assets sold or otherwise disposed of have a fair market value in excess of the greater of $375.0 million and 50.0% of LTM EBITDA for the most recently ended Test Period at the time of such disposition, at least 75.075% of the consideration therefor received by the Company or such Restricted Subsidiary, as the case may be, Subsidiary is in the form of cash cash, Cash Equivalents or Cash Equivalents; provided that Replacement Assets or a combination of the amount offoregoing. For purposes of this Section 4.10(a)(ii), each of the following shall be deemed to be cash:
(A) any liabilities, contingent liabilities (as shown on the Company’s or otherwise, such Restricted Subsidiary’s most recent balance sheet) of the Company or such any Restricted Subsidiary, Subsidiary (other than liabilities contingent liabilities, Indebtedness that are is by their its terms pari passu with, or subordinated to the Notes or that are any Note Guarantee and liabilities to the extent owed to the Company or a Restricted Subsidiary any Affiliate of the Company) that (x) are assumed by the transferee of any such assets (or Equity Interests pursuant to a third party in connection with such transfer) or (y) are otherwise cancelled or terminated in connection with the transaction with such transferee (other than intercompany debt owed to written assignment and assumption agreement that releases the Company or its such Restricted Subsidiaries) and, in each case, for which the Company and all of its Restricted Subsidiaries have been validly released,Subsidiary from further liability therefor;
(B) any securities, notes or other obligations or assets received by the Company or any such Restricted Subsidiary from such transferee that are converted by the Company or such Restricted Subsidiary into cash or Cash Equivalents within 180 days after the date of such Asset Sale (to the extent of the cash or Cash Equivalents received) within 180 days following the closing of such Asset Sale;received in that conversion); and
(C) Indebtedness of any Restricted Subsidiary that ceases to be a Restricted Subsidiary as a result of such Asset Sale (other than intercompany debt owed to the Company or any Restricted Subsidiary), to the extent that the Company and each other Restricted Subsidiary are released from any guarantee of payment of the principal amount of such Indebtedness in connection with such Asset Sale in accordance with the terms of this Indenture;
(D) consideration consisting of Indebtedness of the Issuers or a Guarantor (other than intercompany debt owed to the Company or any Restricted Subsidiary and other than Subordinated Indebtedness) received after the Issue Date from Persons who are not the Company, Holdings or any Restricted Subsidiary;
(E) any Designated Non-cash Consideration received by the Company or such any of its Restricted Subsidiary Subsidiaries in such Asset Sale having an aggregate fair market value, as determined by the CompanyFair Market Value, taken together with all other Designated Non-cash Consideration received pursuant to this clause (EC) that is at that time outstanding, not to exceed the greater of $225.0 million and 30.0% of LTM EBITDA for the most recently ended Test Period at the time of the receipt of |US-DOCS\143900591.2|| such Designated Non-cash Consideration (with the fair market value of each such item of Designated Non-cash Consideration being measured pursuant to this clause (E) at the Company’s option, either at the time of contractually agreeing to such Asset Sale or at the time received and, in either case, without giving effect to subsequent changes in value); and
(F) any Investment, Capital Stock, assets, property or capital or other expenditure of the kind referred to in clauses (2) or (3) of Section 4.10(b) hereof shall be deemed to be Cash Equivalents for purposes of this provision and for no other purpose50.0 million.
(b) Within 540 365 days after the receipt of any Net Proceeds from an Asset Sale, the Company may apply such Net Proceeds at its option:
(i) to repay Indebtedness secured by such assets;
(ii) to purchase Replacement Assets (or enter into a binding agreement to purchase such Replacement Assets; provided that (x) such purchase is consummated within 60 days after the date of such binding agreement and (y) if such purchase is not consummated within the period set forth in subclause (x), the Net Proceeds not so applied will be deemed to be Excess Proceeds (as defined below)); or
(iii) any combination of the foregoing. Pending the final application of any such Net Proceeds, the Company may temporarily reduce revolving credit borrowings or otherwise invest such Net Proceeds in any manner that is not prohibited by this Indenture.
(c) On the 366th day after an Asset Sale or such earlier date, if any, as the Company determines not to apply the Net Proceeds relating to such Asset Sale as set forth in Section 4.10(b) (the each such date being referred as an “Excess Proceeds Application PeriodTrigger Date”), such aggregate amount of Net Proceeds that has not been applied on or before the Excess Proceeds Trigger Date as permitted pursuant to Section 4.10(b) (“Excess Proceeds”) shall be applied by the Company or such Restricted Subsidiary, at their option, may apply an amount equal to the Net Proceeds from such Asset Sale,
(1) to reduce, prepay, repay or purchase:
(A) to the extent such Net Proceeds are from an Asset Sale of Collateral, Obligations with Pari Passu Lien Priority (including the Senior Credit Facilities or any Refinancing Indebtedness in respect thereof but other than Indebtedness owed to the Company or any Restricted Subsidiary), and, in the case of revolving obligations, to correspondingly reduce commitments with respect thereto, provided that, to the extent either Issuer or any Restricted Subsidiary will so repay any such Indebtedness (other than the Notes), the Issuers shall reduce Obligations under the Notes on a pro rata basis by, at their option, (i) redeeming Notes as provided under Section 3.07 hereof (ii) purchasing Notes through open-market purchases or (iii) by making make an offer (in accordance with the procedures set forth herein for an “Asset Sale Offer”) to all Holders of Notes and all holders of other Indebtedness that is pari passu with the Notes or any Note Guarantee containing provisions similar to those set forth in this Indenture with respect to offers to purchase their with the proceeds of sales of assets, with a copy to the Trustee, to purchase the maximum principal amount of Notes at a purchase and such other pari passu Indebtedness that may be purchased out of the Excess Proceeds. The offer price in any Asset Sale Offer shall be equal to 100.0100% of the principal amount thereof, plus the amount of accrued but unpaid interest, if any, on the principal amount of the Notes to be repurchased and such other pari passu Indebtedness plus accrued and unpaid interest and Additional Interest, if any, to the date of repurchase;purchase, and shall be payable in cash.
(Bd) The Company may defer the Asset Sale Offer until there are aggregate unutilized Excess Proceeds equal to or in excess of $25.0 million resulting from one or more Asset Sales, at which time the extent such Net entire unutilized amount of Excess Proceeds resulted from (not only the amount in excess of $25.0 million) shall be applied as provided in Section 4.10(c). If any Excess Proceeds remain after consummation of an Asset Sale Offer, the Company may use such Excess Proceeds for any purpose not consisting otherwise prohibited by this Indenture. If the aggregate principal amount of CollateralNotes and such other pari passu Indebtedness tendered into such Asset Sale Offer exceeds the amount of Excess Proceeds, Obligations in respect of other Secured Indebtedness (which may include the Notes), and, in the case of revolving commitments, to correspondingly reduce commitments with respect thereto;
(C) Obligations in respect of the Notes or any and such other pari passu Indebtedness (other than Subordinated Indebtedness) of the Company or any Restricted Subsidiary, other than Indebtedness owed to the Company or any Restricted Subsidiary (and, in the case of revolving commitments, to correspondingly reduce commitments with respect thereto), provided that, to the extent either Issuer or any Restricted Subsidiary will so repay any such Indebtedness (other than the Notes), the Issuers will reduce Obligations under the Notes shall be purchased on a pro rata basis by, at their option, (i) redeeming Notes as provided under Section 3.07 hereof or (ii) by making an offer (in accordance with the procedures set forth herein for an Asset Sale Offer) to all Holders to purchase their Notes at a purchase price equal to 100.0% of the principal amount thereof, plus the amount of accrued but unpaid interest, if any, based on the principal amount of Notes and such other pari passu Indebtedness tendered. Upon completion of each Asset Sale Offer, the Notes Excess Proceeds subject to such Asset Sale shall no longer be deemed to be repurchased to the date of repurchase; or |US-DOCS\143900591.2||Excess Proceeds.
(De) Obligations in respect The Company shall comply with the requirements of Indebtedness of a Non-Guarantor Subsidiary, Rule 14e-1 under the Exchange Act and any other than Indebtedness owed to the Company or another Restricted Subsidiary; provided, in the case of clauses (A) or (C) above, (i) if an offer to purchase any Indebtedness of the Company or any Restricted Subsidiary is made, such amount will be deemed repaid securities laws and regulations thereunder to the extent such laws and regulations are applicable in connection with each repurchase of Notes pursuant to an Asset Sale Offer. To the amount extent that the provisions of such offerany securities laws or regulations conflict with the Asset Sales provisions of this Indenture, whether or the Company shall comply with the applicable securities laws and regulations and shall not accepted by the holders of such Indebtedness, and no Net Proceeds in the amount of such offer will be deemed to exist following such offer, and (ii) if have breached its obligations under the holder Asset Sale provisions of any Indebtedness of a Restricted Subsidiary of the Company declines the repayment this Indenture by virtue of such Indebtedness owed to it from such Net Proceeds such amount will be deemed repaid to the extent of the declined Net Proceeds, or
(2) 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 that results in the Company or any Restricted Subsidiary, as the case may be, owning an amount of the Capital Stock of such business such that such business constitutes a Restricted Subsidiary or increases the Company’s direct or indirect percentage ownership of the Capital Stock of a Restricted Subsidiary;compliance.
Appears in 1 contract
Sources: Indenture (Brown Shoe Co Inc)
Asset Sales. (a) From and after the Completion Date, the The Company shall not consummatenot, and shall not cause or permit any Subsidiary of its Restricted Subsidiaries to consummatethe Company to, directly or indirectly, consummate an Asset Sale, unless:
; unless (1i) at least 85% of the consideration from such Asset Sale is received in cash and (ii) the Company or such Restricted Subsidiary, as the case may be, Subsidiary receives consideration at the time of such Asset Sale at least equal to the fair market value (as determined in good faith by Fair Market Value of the Company at the time of contractually agreeing shares or assets subject to such Asset Sale) of the assets sold or otherwise disposed of; and
(2) except in the case of a Permitted Asset Swapprovided, if the property or assets sold or otherwise disposed of have a fair market value in excess of the greater of $375.0 million and 50.0% of LTM EBITDA for the most recently ended Test Period at the time of such dispositionhowever, at least 75.0% of the consideration therefor received by the Company or such Restricted Subsidiary, as the case may be, is in the form of cash or Cash Equivalents; provided that the amount of:
of (Ax) any liabilities, contingent liabilities (as shown on the Company’s or otherwise, such Subsidiary’s most recent balance sheet) of the Company or such Restricted Subsidiary, any Subsidiary (other than contingent liabilities and liabilities that are by their terms subordinated to the Series A Notes or any Guarantee thereof) that are owed to the Company or a Restricted Subsidiary that (x) are assumed by the transferee of any such assets (pursuant to any arrangement releasing the Company or a third party in connection with such transfer) or Subsidiary from further liability and (y) are otherwise cancelled or terminated in connection with the transaction with such transferee (other than intercompany debt owed to the Company or its Restricted Subsidiaries) and, in each case, for which the Company and all of its Restricted Subsidiaries have been validly released,
(B) any securities, notes or other obligations or assets received by the Company or any such Restricted Subsidiary from such transferee that are immediately converted by the Company or such Restricted Subsidiary into cash or Cash Equivalents (to the extent of the cash or Cash Equivalents received) within 180 days following the closing of such Asset Sale;
(C) Indebtedness of any Restricted Subsidiary that ceases to be a Restricted Subsidiary as a result of such Asset Sale (other than intercompany debt owed to the Company or any Restricted Subsidiary), to the extent that the Company and each other Restricted Subsidiary are released from any guarantee of payment of the principal amount of such Indebtedness in connection with such Asset Sale in accordance with the terms of this Indenture;
(D) consideration consisting of Indebtedness of the Issuers or a Guarantor (other than intercompany debt owed to the Company or any Restricted Subsidiary and other than Subordinated Indebtedness) received after the Issue Date from Persons who are not the Company, Holdings or any Restricted Subsidiary;
(E) any Designated Non-cash Consideration received by the Company or such Restricted Subsidiary in such Asset Sale having an aggregate fair market value, as determined by the Company, taken together with all other Designated Non-cash Consideration received pursuant to this clause (E) that is at that time outstanding, not to exceed the greater of $225.0 million and 30.0% of LTM EBITDA for the most recently ended Test Period at the time of the receipt of |US-DOCS\143900591.2|| such Designated Non-cash Consideration (with the fair market value of each such item of Designated Non-cash Consideration being measured pursuant to this clause (E) at the Company’s option, either at the time of contractually agreeing to such Asset Sale or at the time received and, in either case, without giving effect to subsequent changes in value); and
(F) any Investment, Capital Stock, assets, property or capital or other expenditure of the kind referred to in clauses (2) or (3) of Section 4.10(b) hereof shall be deemed to be Cash Equivalents cash for purposes of this provision and for no other purposeprovision.
(b) Within 540 365 days after the receipt of any Net Cash Proceeds from an Asset Sale, the Company may apply such Net Cash Proceeds (i) in the case of any Asset Sale of property or assets of the SPV only, to permanently reduce Indebtedness under the SPV Financing Agreement (the “Proceeds Application Period”), the Company or such Restricted Subsidiary, at their option, may apply an amount equal to the Net Proceeds from such Asset Sale,
(1) to reduce, prepay, repay or purchase:
(A) to the extent such Net Proceeds are from an Asset Sale of Collateral, Obligations with Pari Passu Lien Priority (including the Senior Credit Facilities or any Refinancing Indebtedness in respect thereof but other than Indebtedness owed to the Company or any Restricted Subsidiary), and, in the case of revolving obligations, and to correspondingly reduce commitments with respect thereto, provided that, to the extent either Issuer ) or any Restricted Subsidiary will so repay any such Indebtedness (other than the Notes)Senior Indebtedness, the Issuers shall reduce Obligations under the Notes on a pro rata basis by, at their option, (i) redeeming Notes as provided under Section 3.07 hereof (ii) purchasing Notes through open-market purchases to fund the acquisition of a controlling interest in another business, the making of a capital expenditure or the acquisition of other long term assets, in each case, in the same or a similar, related or ancillary line of business as the Company was engaged in on the date of this Agreement or (iii) in the case of any Asset Sale involving either of the Excluded Properties, to permanently reduce Indebtedness in respect of the Contemplated Lease Financing pertaining to such respective Excluded Property. Any Net Cash Proceeds from Asset Sales that are not applied or invested as provided in the first sentence of this paragraph shall be deemed to constitute “Excess Proceeds.” Only in the event that there are no amounts outstanding under the Falcon Purchase Agreement, and any permitted refinancings thereof, or as otherwise consented to, at the request of the Company, by making an offer (“Required Holders” in accordance with and as defined in the procedures set forth herein for Falcon Purchase Agreement, when the aggregate amount of Excess Proceeds exceeds $500,000, the Company shall make an Asset Sale Offer) Offer pursuant to all Holders Section 7.09 hereof to purchase their Notes the maximum principal amount of Series A Notes, that may be purchased out of the Excess Proceeds, at a purchase an offer price in cash in an amount equal to 100.0100% of the principal amount thereof, plus the amount of accrued but and unpaid interest, if any, on the principal amount of the Notes to be repurchased interest thereon to the date of repurchase;
(B) to the extent such Net Proceeds resulted from an Asset Sale not consisting of Collateralpurchase, Obligations in respect of other Secured Indebtedness (which may include the Notes), and, in the case of revolving commitments, to correspondingly reduce commitments with respect thereto;
(C) Obligations in respect of the Notes or any other Indebtedness (other than Subordinated Indebtedness) of the Company or any Restricted Subsidiary, other than Indebtedness owed to the Company or any Restricted Subsidiary (and, in the case of revolving commitments, to correspondingly reduce commitments with respect thereto), provided that, to the extent either Issuer or any Restricted Subsidiary will so repay any such Indebtedness (other than the Notes), the Issuers will reduce Obligations under the Notes on a pro rata basis by, at their option, (i) redeeming Notes as provided under Section 3.07 hereof or (ii) by making an offer (in accordance with the procedures set forth herein for in Section 7.09 hereof. To the extent that the aggregate principal amount of Series A Notes tendered pursuant to an Asset Sale Offer) Offer is less than the Excess Proceeds, the Company may use any remaining Excess Proceeds for general corporate purposes. Subject to all Holders to purchase their Notes at a purchase price equal to 100.0% the terms of the Subordination Agreement, any Net Cash Proceeds from an Asset Sale involving Collateral shall, pending their application in accordance with the terms hereof, be deposited in a collateral account with the Agent in which the Agent shall be granted a perfected second priority security interest, and the terms of which shall be satisfactory to the Agent and the Required Series A Noteholders. Any property or assets acquired with the Net Cash Proceeds of an Asset Sale involving Collateral shall constitute Collateral under this Agreement and the Security Documents. If the aggregate principal amount thereof, plus of Series A Notes surrendered by Series A Noteholders thereof exceeds the amount of accrued but unpaid interestExcess Proceeds, if any, on the principal amount of Company shall select the Series A Notes to be repurchased to the date purchased on a pro rata basis. Upon completion of repurchase; or |US-DOCS\143900591.2||
(D) Obligations in respect of Indebtedness of a Non-Guarantor Subsidiary, other than Indebtedness owed to the Company or another Restricted Subsidiary; provided, in the case of clauses (A) or (C) above, (i) if an such offer to purchase any Indebtedness of the Company or any Restricted Subsidiary is madepurchase, such amount will be deemed repaid to the extent of the amount of such offer, whether or not accepted by the holders of such Indebtedness, and no Net Excess Proceeds in the amount of such offer will shall be deemed to exist following such offer, and (ii) if the holder of any Indebtedness of a Restricted Subsidiary of the Company declines the repayment of such Indebtedness owed to it from such Net Proceeds such amount will be deemed repaid to the extent of the declined Net Proceeds, or
(2) 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 that results in the Company or any Restricted Subsidiary, as the case may be, owning an amount of the Capital Stock of such business such that such business constitutes a Restricted Subsidiary or increases the Company’s direct or indirect percentage ownership of the Capital Stock of a Restricted Subsidiary;reset at zero.
Appears in 1 contract
Asset Sales. (a) From and after the Completion Date, the Company shall not consummateThe Partnership will not, and shall will not permit any of its Restricted Subsidiaries to consummateto, consummate an Asset Sale, Sale unless:
(1) the Company The Partnership (or such 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 determined in good faith by of the Company at date of the time of contractually agreeing definitive agreement with respect to such Asset Sale) of the assets or Equity Interests issued or sold or otherwise disposed of; and
(2) except in the case of a Permitted Asset Swap, if the property or assets sold or otherwise disposed of have a fair market value in excess of the greater of $375.0 million and 50.0% of LTM EBITDA for the most recently ended Test Period at the time of such disposition, at least 75.075% of the aggregate consideration therefor received in the Asset Sale by the Company Partnership or such a Restricted Subsidiary, as Subsidiary and in all other Asset Sales since the case may be, date of this Indenture is in the form of cash or Cash Equivalents; provided that . For purposes of this provision, each of the amount offollowing will be deemed to be cash:
(A) any liabilities, contingent or otherwiseas shown on the Partnership’s most recent consolidated balance sheet, of the Company Partnership or such any Restricted Subsidiary, Subsidiary (other than contingent liabilities and liabilities that are by their terms subordinated to the Notes or any Note Guarantee) that are owed to the Company or a Restricted Subsidiary that (x) are assumed by the transferee of any such assets (pursuant to a novation or a third party in connection with indemnity agreement that releases the Partnership or such transfer) Restricted Subsidiary from or (y) are otherwise cancelled or terminated in connection with the transaction with such transferee (other than intercompany debt owed to the Company or its Restricted Subsidiaries) and, in each case, for which the Company and all of its Restricted Subsidiaries have been validly released,indemnifies against further liability;
(B) any securities, notes or other obligations or assets received by the Company Partnership or such any Restricted Subsidiary from such transferee that are promptly, but in any event within 180 days of the closing (subject to ordinary settlement periods), converted by the Company Partnership or such Restricted Subsidiary into cash or Cash Equivalents (cash, to the extent of the cash or Cash Equivalents received) within 180 days following the closing of such Asset Salereceived in that conversion;
(C) Indebtedness of any Restricted Subsidiary that ceases to be a Restricted Subsidiary as a result of such Asset Sale (other than intercompany debt owed to the Company Capital Stock or any Restricted Subsidiary), to the extent that the Company and each other Restricted Subsidiary are released from any guarantee of payment assets of the principal amount kind referred to in clauses (2) or (4) of such Indebtedness in connection with such Asset Sale in accordance with the terms of this Indenture;Section 4.10(b) hereof; and
(D) consideration consisting of Indebtedness of the Issuers or a Guarantor (other than intercompany debt owed to the Company or any Restricted Subsidiary and other than Subordinated Indebtedness) received after the Issue Date from Persons who are not the Company, Holdings or any Restricted Subsidiary;
(E) any Designated Non-cash Cash Consideration received by the Company Partnership or such Restricted Subsidiary in such the Asset Sale having an aggregate fair market value, as determined by the CompanyFair Market Value, taken together with all other Designated Non-cash Cash Consideration received pursuant to this clause (ED) that is at that time outstanding, not to exceed the greater of (x) $225.0 20.0 million and 30.0(y) 2.0% of LTM EBITDA for the most recently ended Test Period Consolidated Net Tangible Assets at the time of the receipt of |US-DOCS\143900591.2|| such outstanding Designated Non-cash Cash Consideration (with the fair market value Fair Market Value of each such item of Designated Non-cash Cash Consideration being measured pursuant to this clause (E) at the Company’s option, either at the time of contractually agreeing to such Asset Sale or at the time received and, in either case, and without giving effect to subsequent changes in value); and
(F) any Investment, Capital Stock, assets, property or capital or other expenditure of the kind referred to in clauses (2) or (3) of Section 4.10(b) hereof shall be deemed to be Cash Equivalents for purposes of this provision and for no other purpose.
(b) Within 540 450 days after the receipt of any Net Proceeds of any from an Asset Sale (or within 180 days after such 450-day period in the “Proceeds Application Period”event the Partnership or any Restricted Subsidiary enters into a binding commitment with respect to such application), the Company Partnership (or such any Restricted Subsidiary, at their option, ) may apply an amount equal to the such Net Proceeds from such Asset Sale,Proceeds:
(1) to reduce, prepay, repay or purchase:
(Ai) to the extent such Net Proceeds Indebtedness and other Obligations under a Credit Facility that are from an Asset Sale of Collateral, Obligations with Pari Passu secured by a Lien Priority (including the Senior Credit Facilities or any Refinancing Indebtedness in respect thereof but other than Indebtedness owed to the Company or any Restricted Subsidiary), and, in if the case of Indebtedness repaid is revolving obligationscredit Indebtedness, to correspondingly reduce commitments with respect thereto, provided that, to the extent either Issuer or any Restricted Subsidiary will so repay any such Indebtedness (other than the Notes), the Issuers shall reduce Obligations under the Notes on a pro rata basis by, at their option, (i) redeeming Notes as provided under Section 3.07 hereof (ii) purchasing Notes through open-market purchases or (iii) by making an offer (in accordance with the procedures set forth herein for an Asset Sale Offer) to all Holders to purchase their Notes at a purchase price equal to 100.0% of the principal amount thereof, plus the amount of accrued but unpaid interest, if any, on the principal amount of the Notes to be repurchased to the date of repurchase;
(B) to the extent such Net Proceeds resulted from an Asset Sale not consisting of Collateral, Obligations in respect of other Secured Indebtedness (which may include the Notes), and, in the case of revolving commitments, to correspondingly reduce commitments with respect thereto;
(C) Obligations in respect of the Notes or any other Indebtedness (other than Subordinated Indebtedness) of the Company or any Restricted Subsidiary, other than Indebtedness owed to the Company or any Restricted Subsidiary (and, in the case of revolving commitments, to correspondingly reduce commitments with respect thereto), provided that, to the extent either Issuer or any Restricted Subsidiary will so repay any such Indebtedness (other than the Notes), the Issuers will reduce Obligations under the Notes on a pro rata basis by, at their option, (i) redeeming Notes as provided under Section 3.07 hereof or (ii) by making an offer (in accordance with the procedures set forth herein for an Asset Sale Offer) to all Holders to purchase their Notes at a purchase price equal to 100.0% of the principal amount thereof, plus the amount of accrued but unpaid interest, if any, on the principal amount of the Notes to be repurchased to the date of repurchase; or |US-DOCS\143900591.2||
(D) Obligations in respect of Indebtedness of a Non-Guarantor Subsidiary, other than Indebtedness owed to the Company or another Restricted Subsidiary; provided, in the case of clauses (A) or (C) above, (i) if an offer to purchase any Indebtedness of the Company or any Restricted Subsidiary is made, such amount will be deemed repaid to the extent of the amount of such offer, whether or not accepted by the holders of such Indebtedness, and no Net Proceeds in the amount of such offer will be deemed to exist following such offer, thereto and (ii) if all Hedging Obligations related to such Indebtedness;
(2) to acquire all or substantially all of the holder assets of, or any Capital Stock of, another Permitted Business, if, after giving effect to any such acquisition of any Indebtedness of Capital Stock, the Permitted Business is or becomes a Restricted Subsidiary of the Company declines Partnership;
(3) to make capital expenditures; or
(4) to acquire other assets that are not classified as current assets under GAAP and that are used or useful in a Permitted Business. Pending the repayment final application of such Indebtedness owed to it from such Net Proceeds such amount will be deemed repaid to the extent of the declined any Net Proceeds, or
the Partnership (2) 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 that results in the Company or any 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) above will constitute “Excess Proceeds.” When the aggregate amount of Excess Proceeds exceeds $25.0 million, as within five days thereof, the case Partnership 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, 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 connection therewith) that may bebe purchased, owning 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 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, and will be payable in cash. If any Excess Proceeds remain after consummation of an Asset Sale Offer, the Partnership or any Restricted Subsidiary may use an amount of the Capital Stock of such business such that such business constitutes a Restricted Subsidiary or increases the Company’s direct or indirect percentage ownership of the Capital Stock of a Restricted Subsidiary;equal to those Excess Proceeds for any purpose not otherwise prohibited by this
Appears in 1 contract
Asset Sales. (a) From and after the Completion Date, the The Company shall not consummatewill not, and shall will not permit any of its Restricted Subsidiaries to consummateto, directly or indirectly, consummate an Asset Sale, Sale unless:
(1a) at least 75% of the proceeds from such Asset Sale are received in cash; PROVIDED, HOWEVER, that the amount of (i) any Senior Indebtedness of the Company or any Guarantor (or any Indebtedness of a Restricted Subsidiary that is not a Guarantor) that is assumed by the transferee of any asset in connection with any Asset Sale and (ii) any securities, notes or other obligations received by the Company or any such Restricted Subsidiary from such transferee or purchaser that are converted by the Company or such Restricted SubsidiarySubsidiary into cash or Cash Equivalents within 60 days after receipt (to the extent of any cash or Cash Equivalents received in that conversion), as the case may be, shall be deemed to be cash for purposes of this provision; and
(b) The Company or such Restricted Subsidiary receives consideration at the time of such Asset Sale at least equal to the fair market value of the shares or assets sold (as determined in good faith by the Board of Directors of the Company at and evidenced by a board resolution for Asset Sales in excess of $15,000,000). Notwithstanding the time of contractually agreeing to such Asset Saleforegoing, clause (a) of the assets sold preceding paragraph shall not apply to any Asset Sale or otherwise disposed of; and
portions thereof involving Excluded Assets or the making of any Permitted Investment pursuant to the definition of "PERMITTED INVESTMENT" or any Restricted Payment under Section 4.07 hereof. If all or a portion of the Net Cash Proceeds of any Asset Sale are not applied to prepay or repay permanently any Senior Indebtedness then outstanding as provided by the terms thereof (2) except and to effect a corresponding commitment reduction in the case of a Permitted Asset Swap, if the property or assets sold or otherwise disposed of have a fair market value in excess of the greater of $375.0 million and 50.0% of LTM EBITDA for the most recently ended Test Period at the time of such disposition, at least 75.0% of the consideration therefor received by the Company or such Restricted Subsidiary, as the case may be, is in the form of cash or Cash Equivalents; provided event that the amount of:
(A) any liabilities, contingent Senior Indebtedness prepaid or otherwise, of the Company or such Restricted Subsidiary, other than liabilities that are by their terms subordinated to the Notes or that are owed to the Company or repaid is not a Restricted Subsidiary that (x) are assumed by the transferee of any such assets (or a third party in connection with such transfer) or (y) are otherwise cancelled or terminated in connection with the transaction with such transferee (other than intercompany debt owed to the Company or its Restricted Subsidiaries) and, in each case, for which the Company and all of its Restricted Subsidiaries have been validly released,
(B) any securities, notes or other obligations or assets received by the Company or such Restricted Subsidiary from such transferee that are converted by the Company or such Restricted Subsidiary into cash or Cash Equivalents (to the extent of the cash or Cash Equivalents receivedterm loan) within 180 days following 12 months of the closing of such Asset Sale;
(C) , or if no such Senior Indebtedness of any Restricted Subsidiary that ceases to be a Restricted Subsidiary as a result of such Asset Sale (other than intercompany debt owed to is then outstanding, then the Company or any Restricted Subsidiary), to the extent that the Company and each other Restricted Subsidiary are released from any guarantee of payment may within 12 months of the principal amount of such Indebtedness Asset Sale, invest the Net Cash Proceeds in connection with such Asset Sale in accordance with the terms of this Indenture;
properties and assets that (D) consideration consisting of Indebtedness of the Issuers or a Guarantor (other than intercompany debt owed to the Company or any Restricted Subsidiary and other than Subordinated Indebtedness) received after the Issue Date from Persons who are not the Company, Holdings or any Restricted Subsidiary;
(E) any Designated Non-cash Consideration received by the Company or such Restricted Subsidiary in such Asset Sale having an aggregate fair market value, as determined by the Company, taken together with all other Designated Non-cash Consideration received pursuant to this clause (EBoard of Directors) replace the properties and assets that is at that time outstanding, not to exceed were the greater of $225.0 million and 30.0% of LTM EBITDA for the most recently ended Test Period at the time subject of the receipt of |US-DOCS\143900591.2|| such Designated Non-cash Consideration (with the fair market value of each such item of Designated Non-cash Consideration being measured pursuant to this clause (E) at the Company’s option, either at the time of contractually agreeing to such Asset Sale or at in properties and assets that will be used in the time received and, in either case, without giving effect to subsequent changes in value); and
(F) any Investment, Capital Stock, assets, property or capital or other expenditure businesses of the kind referred to Company or its Restricted Subsidiaries existing on the date of this Indenture or in clauses (2) or (3) of Section 4.10(b) hereof shall be deemed to be Cash Equivalents businesses reasonably related thereto which for purposes of this provision and for no other purposeIndenture shall include any consumer products business. The amount of such Net Cash Proceeds neither used to permanently repay or prepay Senior Indebtedness nor used or invested as set forth in this paragraph constitutes "EXCESS PROCEEDS.
(b) Within 540 days after " When the receipt aggregate amount of any Net Excess Proceeds of any Asset Sale (the “Proceeds Application Period”)equals $25,000,000 or more, the Company or such Restricted Subsidiary, at their option, may shall apply an amount equal the Excess Proceeds to the Net Proceeds from repayment of the Notes and any Pari Passu Indebtedness required to be repurchased under the instrument governing such Asset Sale,
(1) to reduce, prepay, repay or purchasePari Passu Indebtedness as follows:
(Aa) to the extent such Net Proceeds are from an Asset Sale of Collateral, Obligations with Pari Passu Lien Priority (including the Senior Credit Facilities or any Refinancing Indebtedness in respect thereof but other than Indebtedness owed to the Company or any Restricted Subsidiary), and, in the case shall make an offer to purchase (an "OFFER") from all Holders of revolving obligations, to correspondingly reduce commitments with respect thereto, provided that, to the extent either Issuer or any Restricted Subsidiary will so repay any such Indebtedness (other than the Notes), the Issuers shall reduce Obligations under the Notes on a pro rata basis by, at their option, (i) redeeming Notes as provided under Section 3.07 hereof (ii) purchasing Notes through open-market purchases or (iii) by making an offer (in accordance with the procedures set forth herein for in this Indenture in the maximum principal amount (expressed as a multiple of $1,000) of Notes that may be purchased out of an Asset Sale Offeramount (the "NOTE AMOUNT") equal to the product of such Excess Proceeds multiplied by a fraction, the numerator of which is the outstanding principal amount of the Notes, and the denominator of which is the sum of the outstanding principal amount of the Notes and such Pari Passu Indebtedness (subject to proration in the event such amount is less than the aggregate Offered Price (as defined herein) of all Notes tendered); and
(b) to all Holders the extent required by such Pari Passu Indebtedness to permanently reduce the principal amount of such Pari Passu Indebtedness, the Company shall make an offer to purchase their Notes at or otherwise repay or repurchase or redeem Pari Passu Indebtedness (a purchase price "PARI PASSU OFFER") in an amount (the "PARI PASSU DEBT AMOUNT") equal to 100.0the excess of the Excess Proceeds over the Note Amount; PROVIDED that in no event shall the Pari Passu Debt Amount exceed the principal amount of such Pari Passu Indebtedness plus the amount of any premium required to be paid to repurchase such Pari Passu Indebtedness. The offer price shall be payable in cash in an amount equal to 100% of the principal amount thereof, of the Notes plus the amount of accrued but and unpaid interest, if any, on the principal amount of the Notes to be repurchased to the date of repurchase;
(Bthe "PURCHASE DATE") to such Offer is consummated (the extent such Net Proceeds resulted from an Asset Sale not consisting of Collateral, Obligations in respect of other Secured Indebtedness (which may include the Notes"OFFERED PRICE"), and, in the case of revolving commitments, to correspondingly reduce commitments with respect thereto;
(C) Obligations in respect of the Notes or any other Indebtedness (other than Subordinated Indebtedness) of the Company or any Restricted Subsidiary, other than Indebtedness owed to the Company or any Restricted Subsidiary (and, in the case of revolving commitments, to correspondingly reduce commitments with respect thereto), provided that, to the extent either Issuer or any Restricted Subsidiary will so repay any such Indebtedness (other than the Notes), the Issuers will reduce Obligations under the Notes on a pro rata basis by, at their option, (i) redeeming Notes as provided under Section 3.07 hereof or (ii) by making an offer (in accordance with the procedures set forth herein for an Asset Sale Offer) to all Holders to purchase their Notes at a purchase price equal to 100.0% in Section 3.09 hereof. To the extent that the aggregate Offered Price of the principal Notes tendered pursuant to the Offer is less than the Note Amount relating thereto or the aggregate amount thereof, plus of Pari Passu Indebtedness that is purchased is less than the Pari Passu Debt Amount (the amount of accrued but unpaid interestsuch shortfall, if any, on the principal amount of the Notes to be repurchased to the date of repurchase; or |US-DOCS\143900591.2||
(D) Obligations in respect of Indebtedness of constituting a Non-Guarantor Subsidiary"Deficiency"), other than Indebtedness owed to the Company or another Restricted Subsidiary; provided, shall use such Deficiency in the case of clauses (A) or (C) above, (i) if an offer to purchase any Indebtedness business of the Company and its Restricted Subsidiaries or for any Restricted Subsidiary is madeother purpose permitted under the terms of this Indenture. Upon completion of the purchase of all the Notes tendered pursuant to an Offer and repurchase of the Pari Passu Indebtedness pursuant to a Pari Passu Offer, such amount will be deemed repaid to the extent of the amount of such offer, whether or not accepted by the holders of such Indebtedness, and no Net Proceeds in the amount of such offer will be deemed to exist following such offer, and (ii) if the holder of any Indebtedness of a Restricted Subsidiary of the Company declines the repayment of such Indebtedness owed to it from such Net Proceeds such amount will be deemed repaid to the extent of the declined Net Excess Proceeds, or
(2) if any, shall be reset at zero. Such Excess Proceeds may be invested in Temporary Cash Investments or used to make an Investment in (A) temporarily repay amounts outstanding under a revolving credit facility until they are applied as provided above. The Company shall be entitled to any one interest or more businessesdividends accrued, provided that earned or paid on such Investment in any business is in the form of the acquisition of Capital Stock that results in the Company or any Restricted Subsidiary, as the case may be, owning an amount of the Capital Stock of such business such that such business constitutes a Restricted Subsidiary or increases the Company’s direct or indirect percentage ownership of the Capital Stock of a Restricted Subsidiary;Temporary Cash Investments.
Appears in 1 contract
Asset Sales. (a) From and after the Completion Date, the The Company shall not consummatenot, and shall not permit any of its Restricted Subsidiaries to consummateto, consummate an Asset Sale, unless:
Sale unless (1i) the Company (or such the Restricted Subsidiary, as the case may be, ) receives consideration at the time of such Asset Sale at least equal to the fair market value (as determined evidenced by a resolution of the Board of Directors set forth in good faith by an Officers' Certificate delivered to the Trustee in the case of any Asset Sale for which the Company at the time or any of contractually agreeing to such Asset Saleits Restricted Subsidiaries receives consideration in excess of $15,000,000) of the assets sold or otherwise disposed of; and
(2) except in the case of a Permitted Asset Swap, if the property Equity Interests issued or assets sold or otherwise disposed of have a fair market value in excess of the greater of $375.0 million and 50.0% of LTM EBITDA for the most recently ended Test Period at the time of such disposition, (ii) at least 75.080% of the consideration therefor received by the Company or such Restricted Subsidiary, as the case may be, Subsidiary is in the form of cash or Cash Equivalents; provided that the amount of:
of (Ax) any liabilities, contingent liabilities (as shown on the Company's or otherwisesuch Restricted Subsidiary's most recent balance sheet), of the Company or such any Restricted Subsidiary, Subsidiary (other than contingent liabilities and liabilities that are by their terms subordinated to the Notes or any guarantee thereof) that are owed to the Company or a Restricted Subsidiary that (x) are assumed by the transferee of any such assets (pursuant to a customary novation or a third party in connection with such transfer) or (y) are otherwise cancelled or terminated in connection with the transaction with such transferee (other than intercompany debt owed to agreement that releases the Company or its such Restricted Subsidiaries) and, in each case, for which the Company Subsidiary from further liability and all of its Restricted Subsidiaries have been validly released,
(By) any securities, notes or other obligations or assets received by the Company or any such Restricted Subsidiary from such transferee that are converted by the Company or such Restricted Subsidiary within 90 days following the closing of the Asset Sale into cash or Cash Equivalents (to the extent of the cash or Cash Equivalents received) within 180 days following the closing of such Asset Sale;
(C) Indebtedness of any Restricted Subsidiary that ceases to be a Restricted Subsidiary as a result of such Asset Sale (other than intercompany debt owed to the Company or any Restricted Subsidiary), to the extent that the Company and each other Restricted Subsidiary are released from any guarantee of payment of the principal amount of such Indebtedness in connection with such Asset Sale in accordance with the terms of this Indenture;
(D) consideration consisting of Indebtedness of the Issuers or a Guarantor (other than intercompany debt owed to the Company or any Restricted Subsidiary and other than Subordinated Indebtedness) received after the Issue Date from Persons who are not the Company, Holdings or any Restricted Subsidiary;
(E) any Designated Non-cash Consideration received by the Company or such Restricted Subsidiary in such Asset Sale having an aggregate fair market value, as determined by the Company, taken together with all other Designated Non-cash Consideration received pursuant to this clause (E) that is at that time outstanding, not to exceed the greater of $225.0 million and 30.0% of LTM EBITDA for the most recently ended Test Period at the time of the receipt of |US-DOCS\143900591.2|| such Designated Non-cash Consideration (with the fair market value of each such item of Designated Non-cash Consideration being measured pursuant to this clause (E) at the Company’s option, either at the time of contractually agreeing to such Asset Sale or at the time received and, in either case, without giving effect to subsequent changes in value); and
(F) any Investment, Capital Stock, assets, property or capital or other expenditure of the kind referred to in clauses (2) or (3) of Section 4.10(b) hereof shall be deemed to be Cash Equivalents cash for purposes of this provision and for no other purpose.
(b) provision. Within 540 360 days after of the receipt of any Net Proceeds of any from an Asset Sale (the “Proceeds Application Period”)Sale, the Company or such and its Restricted Subsidiary, at their option, Subsidiaries may apply an amount equal to the Net Proceeds from such Asset Sale,
(1) to reduce, prepay, repay or purchase:
(A) to the extent such Net Proceeds are from an Asset Sale of Collateral, Obligations with Pari Passu Lien Priority (including the Senior Credit Facilities or any Refinancing Indebtedness in respect thereof but other than Indebtedness owed to the Company or any Restricted Subsidiary), and, in the case of revolving obligations, to correspondingly reduce commitments with respect thereto, provided that, to the extent either Issuer or any Restricted Subsidiary will so repay any such Indebtedness (other than the Notes), the Issuers shall reduce Obligations under the Notes on a pro rata basis byProceeds, at their option, (i) redeeming Notes as provided under Section 3.07 hereof (ii) purchasing Notes through open-market purchases or (iii) by making an offer (in accordance with the procedures set forth herein for an Asset Sale Offera) to all Holders to purchase their Notes at a purchase price equal to 100.0% of the principal amount thereof, plus the amount of accrued but unpaid interest, if any, on the principal amount of the Notes to be repurchased to the date of repurchase;
(B) to the extent such Net Proceeds resulted from an Asset Sale not consisting of Collateral, Obligations in respect of other Secured repay secured Indebtedness (which may include the Notes), and, in the case of revolving commitments, to correspondingly reduce commitments with respect thereto;
(C) Obligations in respect of the Notes or any other Indebtedness (other than Subordinated Indebtedness) of the Company or any Restricted Subsidiary, other than Indebtedness owed to the Company or any Restricted Subsidiary (and, in the case of any such Indebtedness that was borrowed under a revolving commitmentscredit line, to correspondingly reduce commitments with respect thereto), provided that, or (b) to the extent either Issuer acquisition of a controlling interest in another business, the making of a capital 54 49 expenditure or the acquisition of other long-term assets, in each case, in the same or a related or complementary line of business as the Company or any of its Restricted Subsidiary will so repay Subsidiaries was engaged in on the date of this Indenture (as determined in good faith by the Company). Pending the final application of any such Indebtedness (other than the Notes)Net Proceeds, the Issuers will Company may temporarily reduce Obligations the revolving credit lines under the New Credit Facility (without any corresponding commitment reduction) or otherwise invest such Net Proceeds in any manner that is not prohibited by this Indenture. Any Net Proceeds from Asset Sales that are not applied or invested as provided in the first sentence of this paragraph shall be deemed to constitute "Excess Proceeds." Not later than 30 days after any date (an "Asset Sale Offer Trigger Date") that the aggregate amount of Excess Proceeds exceeds $10,000,000, the Company shall mail to each holder of Notes on at such holder's registered address a pro rata basis by, at their option, notice stating: (i) redeeming Notes as provided under Section 3.07 hereof or (ii) by making an offer (in accordance with the procedures set forth herein for that an Asset Sale Offer) to all Holders Offer Trigger Date has occurred and that the Company is offering to purchase their the maximum principal amount of Notes that may be purchased out of the Excess Proceeds, at a purchase an offer price in cash equal to 100.0100% of the principal amount thereof, plus accrued and unpaid interest and Liquidated Damages, if any, thereon to the date of purchase (the "Asset Sale Offer Purchase Date"), which shall be a business day, specified in such notice, that is not earlier than 30 days or later than 60 days from the date such notice is mailed; (ii) the amount of accrued but and unpaid interestinterest and Liquidated Damages, if any, thereon as of the Asset Sale Offer Purchase Date; (iii) that any Note not tendered shall continue to accrue interest and Liquidated Damages, if any; (iv) that, unless the Company defaults in the payment of the purchase price for the Notes payable pursuant to the Asset Sale Offer, any Notes accepted for payment pursuant to the Asset Sale Offer shall cease to accrue interest and Liquidated Damages, if any, after the Asset Sale Offer Purchase Date; (v) the procedures, consistent with this Indenture, to be followed by a holder of Notes in order to accept an Asset Sale Offer or to withdraw such acceptance; and (vi) such other information as may be required by this Indenture and applicable laws and regulations. On the Asset Sale Offer Purchase Date, the Company shall: (i) accept for payment the maximum principal amount of Notes or portions thereof tendered pursuant to the Asset Sale Offer that can be purchased out of Excess Proceeds from such Asset Sale; (ii) deposit with the paying agent the aggregate purchase price of all Notes or portions thereof accepted for payment and any accrued and unpaid interest and Liquidated Damages, if any, on such Notes as of the Asset Sale Offer Purchase Date; and (iii) deliver or cause to be delivered to the Trustee all Notes tendered pursuant to the Asset Sale Offer. The paying agent shall promptly mail to each holder of Notes or portions thereof accepted for payment an amount equal to the purchase price for such Note plus any accrued and unpaid interest and Liquidated Damages, if any, thereon, and the Trustee shall promptly authenticate and mail to such holder of Notes accepted for payment in part a new Note equal in principal amount to any unpurchased portion of the Notes, and any Note not accepted for payment in whole or in part shall be promptly returned to the holder of such Note. On and after an Asset Sale 55 50 Offer Purchase Date, interest and Liquidated Damages, if any, shall cease to accrue on the Notes or portions thereof accepted for payment, unless the Company defaults in the payment of the purchase price therefor. The Company shall announce the results of the Asset Sale Offer to holders of the Notes on or as soon as practicable after the Asset Sale Offer Purchase Date. To the extent that the aggregate amount of Notes tendered pursuant to an Asset Sale Offer is less than the Excess Proceeds, the Company may use any remaining Excess Proceeds for general corporate purposes. If the Aggregate principal amount of Notes surrendered by Holders thereof exceeds the amount of Excess Proceeds, the Trustee shall select the Notes to be repurchased to the date purchased on a pro rata basis. Upon completion of repurchase; or |US-DOCS\143900591.2||
(D) Obligations in respect of Indebtedness of a Non-Guarantor Subsidiarysuch Asset Sale Offer, other than Indebtedness owed to the Company or another Restricted Subsidiary; provided, in the case of clauses (A) or (C) above, (i) if an offer to purchase any Indebtedness of the Company or any Restricted Subsidiary is made, such amount will be deemed repaid to the extent of the amount of Excess Proceeds shall be reset at zero. The Company shall comply with the applicable tender offer rules, including the requirements of Rule 14e-1 under the Exchange Act, and all other applicable securities laws and regulations in connection with any Asset Sale Offer. To the extent that any applicable securities laws or regulations conflict with the terms hereof, the Company shall comply with such offerlaws or regulations and shall not be deemed to have breached its obligations under this Indenture or Notes by virtue thereof. If the Asset Sale Purchase Date is on or after an interest record date and on or before the related interest payment date, whether or not accepted by any accrued and unpaid interest shall be paid to the holders Person in whose name a Note is registered at the close of business on such Indebtednessrecord date, and no Net Proceeds in the amount of such offer will additional interest shall be deemed payable to exist following such offer, and (ii) if the holder of any Indebtedness of a Restricted Subsidiary of the Company declines the repayment of such Indebtedness owed to it from such Net Proceeds such amount will be deemed repaid Holders who tender Notes pursuant to the extent of the declined Net Proceeds, or
(2) 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 that results in the Company or any Restricted Subsidiary, as the case may be, owning an amount of the Capital Stock of such business such that such business constitutes a Restricted Subsidiary or increases the Company’s direct or indirect percentage ownership of the Capital Stock of a Restricted Subsidiary;Asset Sale Offer.
Appears in 1 contract
Sources: Indenture (Medaphis Corp)
Asset Sales. (a) From and after the Completion Date, the Company The Issuer shall not consummatenot, and shall not permit any of its Restricted Subsidiaries to consummateto, consummate an Asset Sale, unless:
(1) the Company Issuer or such Restricted Subsidiary, as the case may be, receives consideration at the time of such Asset Sale at least equal to the fair market value (as determined in good faith by the Company at the time of contractually agreeing to such Asset SaleIssuer) of the assets sold or otherwise disposed of; and
(2) except in the case of a Permitted Asset Swap, if the property or assets sold or otherwise disposed of have a fair market value in excess of the greater of $375.0 million and 50.0% of LTM EBITDA for the most recently ended Test Period at the time of such disposition, at least 75.075% of the consideration therefor received by the Company Issuer or such Restricted Subsidiary, as the case may be, is in the form of cash or Cash Equivalents; provided that the amount of:
(A) any liabilities, contingent liabilities (as shown on the Issuer’s or otherwise, such Restricted Subsidiary’s most recent balance sheet or in the footnotes thereto) of the Company Issuer or such Restricted Subsidiary, other than liabilities that are by their terms subordinated to the Notes (or Guarantees) or that are owed to the Company Issuer or a Restricted Subsidiary Subsidiary, that (x) are assumed by the transferee of any such assets (or a third party in connection with such transfer) or (y) are otherwise cancelled or terminated in connection with the transaction with such transferee (other than intercompany debt owed to the Company or its Restricted Subsidiaries) and, in each case, and for which the Company Issuer and all of its Restricted Subsidiaries have been validly releasedirrevocably released from such liabilities,
(B) any securities, notes or other obligations or assets received by the Company Issuer or such Restricted Subsidiary from such transferee that are converted by the Company Issuer or such Restricted Subsidiary into cash or Cash Equivalents (to the extent of the cash or Cash Equivalents received) within 180 days following the closing of such Asset Sale;, subject to ordinary settlement periods, and
(C) Indebtedness of any Restricted Subsidiary that ceases to be a Restricted Subsidiary as a result of such Asset Sale (other than intercompany debt owed to the Company or any Restricted Subsidiary), to the extent that the Company and each other Restricted Subsidiary are released from any guarantee of payment of the principal amount of such Indebtedness in connection with such Asset Sale in accordance with the terms of this Indenture;
(D) consideration consisting of Indebtedness of the Issuers or a Guarantor (other than intercompany debt owed to the Company or any Restricted Subsidiary and other than Subordinated Indebtedness) received after the Issue Date from Persons who are not the Company, Holdings or any Restricted Subsidiary;
(E) any Designated Non-cash Consideration received by the Company Issuer or such Restricted Subsidiary in such Asset Sale having an aggregate fair market value, as determined by the Company, taken together with all other Designated Non-cash Consideration received pursuant to this clause (EC) that is at that time outstanding, not to exceed the greater of (x) $225.0 million 150,000,000 and 30.0(y) 25% of LTM EBITDA (for the most recently ended Test Period at four fiscal quarters ending immediately prior to the time date of the receipt of |US-DOCS\143900591.2|| such Designated Non-cash Consideration (for which internal financial statements are available), with the fair market value of each such item of Designated Non-cash Consideration being measured pursuant to this clause (E) at the Company’s option, either at the time of contractually agreeing to such Asset Sale or at the time received and, in either case, and without giving effect to subsequent changes in value); and
(F) any Investment, Capital Stock, assets, property or capital or other expenditure of the kind referred to in clauses (2) or (3) of Section 4.10(b) hereof value shall be deemed to be Cash Equivalents cash for purposes of this provision and for no other purpose.
(b) Within 540 days 18 months after the receipt of any Net Proceeds of any Asset Sale (by the “Proceeds Application Period”)Issuer or any Restricted Subsidiary, the Company Issuer or such Restricted Subsidiary, at their its option, may apply an amount equal to the Net Proceeds from such Asset Sale,:
(1) to reduce, prepay, repay or purchase:
(Ax) to the extent such Net Proceeds are from an Asset Sale of Collateralpermanently reduce Obligations under any Secured Indebtedness, Obligations with Pari Passu Lien Priority (including Indebtedness under the Senior Secured Credit Facilities Facilities, the ABL Facility or any Refinancing Indebtedness in respect thereof but other than Indebtedness owed to the Company or any Restricted Subsidiary)Existing Secured Notes, and, in the case of revolving obligations, and to correspondingly reduce commitments with respect thereto, provided that(y) to permanently reduce, prepay, repay or purchase Pari Passu Indebtedness; provided, that the Issuer equally and ratably reduce (or offer to the extent either Issuer or any Restricted Subsidiary will so repay any such Indebtedness (other than the Notes), the Issuers shall reduce pursuant to an Asset Sale Offer) Obligations under the Notes on a pro rata basis by, at their option, (i) redeeming Notes as provided under Section 3.07 hereof (ii) purchasing Notes through open-market purchases or (iiiz) by making to make an offer (in accordance with the procedures set forth herein in Section 3.09 and Section 4.10 hereof for an Asset Sale Offer) to all Holders of Notes to purchase their a pro rata amount of Notes at a purchase price equal to 100.0100% of the principal amount thereof, plus the amount of accrued but unpaid interest, if any, on the principal amount of the redeem Notes to be repurchased to the date of repurchase;
as provided in Section 3.07 hereof or purchase Notes through open-market purchases (B) to the extent such Net Proceeds resulted from an Asset Sale not consisting purchases are at or above 100% of Collateral, Obligations in respect of other Secured Indebtedness the principal amount thereof);
(which may include the Notes), and, 2) solely in the case of revolving commitmentsan Asset Sale by a Restricted Subsidiary that is not a Guarantor, to permanently reduce Obligations under Indebtedness of Restricted Subsidiaries that are not Guarantors, and to correspondingly reduce commitments with respect thereto;
(C) Obligations in respect of the Notes or any other Indebtedness (other than Subordinated Indebtedness) of the Company or any Restricted Subsidiary, other than Indebtedness owed to the Company or any Restricted Subsidiary (and, in the case of revolving commitments, to correspondingly reduce commitments with respect thereto), provided that, to the extent either Issuer or any Restricted Subsidiary will so repay any such Indebtedness (other than the Notes), the Issuers will reduce Obligations under the Notes on a pro rata basis by, at their option, (i) redeeming Notes as provided under Section 3.07 hereof or (ii) by making an offer (in accordance with the procedures set forth herein for an Asset Sale Offer) to all Holders to purchase their Notes at a purchase price equal to 100.0% of the principal amount thereof, plus the amount of accrued but unpaid interest, if any, on the principal amount of the Notes to be repurchased to the date of repurchase; or |US-DOCS\143900591.2||
(D) Obligations in respect of Indebtedness of a Non-Guarantor Subsidiary, other than Indebtedness owed to the Company or another Restricted Subsidiary; provided, in the case of clauses (A) or (C) above, (i) if an offer to purchase any Indebtedness of the Company or any Restricted Subsidiary is made, such amount will be deemed repaid to the extent of the amount of such offer, whether or not accepted by the holders of such Indebtedness, and no Net Proceeds in the amount of such offer will be deemed to exist following such offer, and (ii) if the holder of any Indebtedness of a Restricted Subsidiary of the Company declines the repayment of such Indebtedness owed to it from such Net Proceeds such amount will be deemed repaid to the extent of the declined Net Proceeds, or
(23) to (a) make an Investment in (A) any one or more businesses, provided provided, however, that such Investment in any business is in the form of the acquisition of Capital Stock that and results in the Company Issuer or any Restricted Subsidiary, as the case may be, owning an amount of the Capital Stock of such business such that such business it constitutes a Restricted Subsidiary Subsidiary, (b) acquire properties, (c) make capital expenditures or increases (d) acquire other assets that, in the Company’s direct case of each of clauses (a), (b), (c) and (d) either (x) are used or indirect percentage ownership useful in a Similar Business or (y) replace the businesses, properties or assets that are the subject of such Asset Sale; provided, however, that, in the case of clause (3) above, a binding commitment shall be treated as a permitted application of the Capital Stock Net Proceeds from the date of such commitment so long as the Issuer or such 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.
(c) Any Net Proceeds from any Asset Sale described in the preceding paragraph that are not invested or applied as provided and within the time period set forth in the preceding paragraph will be deemed to constitute “Excess Proceeds”, except the amount of Excess Proceeds will be reduced by the sum of the amount of the Notes offered to be purchased in an offer pursuant to Section 4.10(b)(1) hereof. When the aggregate amount of Excess Proceeds with respect to the Notes exceeds $100,000,000, the Issuer shall make an offer to all Holders of the Notes and, if required by the terms of any Pari Passu Indebtedness, to all holders of such Indebtedness (an “Asset Sale Offer”), to purchase the maximum aggregate principal amount of such Notes and the maximum aggregate principal amount (or accreted value, if less) of such 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 such Excess Proceeds at an offer price in cash in an amount equal to 100% of the principal amount thereof plus accrued and unpaid interest (or such lesser price with respect to such other Pari Passu Indebtedness, if any, as may be provided by the terms of the agreements governing such other Indebtedness) to the date fixed for the closing of such offer, in accordance with the procedures set forth in this Indenture and the agreement governing the Pari Passu Indebtedness. The Issuer will commence an Asset Sale Offer with respect to Excess Proceeds within 20 Business Days after the date that Excess Proceeds exceed $100,000,000 by delivering 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 $100,000,000 or less. To the extent that the aggregate principal amount of Notes and the aggregate principal amount (or accreted value, if applicable) of such Pari Passu Indebtedness validly tendered pursuant to an Asset Sale Offer is less than the Excess Proceeds with respect to the 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 Indenture or for any other purpose not otherwise prohibited by this Indenture. If the aggregate principal amount of Notes and the aggregate principal amount (or accreted value, if applicable) of the Indebtedness surrendered in an Asset Sale Offer exceeds the amount of Excess Proceeds, the Trustee or the Paying Agent shall select the Notes and the Issuer or the agent for such Indebtedness shall select such other Indebtedness to be purchased on a pro rata basis based on the principal amount of the Notes and the aggregate principal amount (or accreted value, if applicable) of such Indebtedness validly tendered. Upon completion of any such Asset Sale Offer, the amount of Excess Proceeds shall be reset at zero. Pending the final application of any Net Proceeds pursuant to this Section 4.10, the holder of such Net Proceeds may (1) apply such Net Proceeds temporarily to reduce Indebtedness outstanding under a revolving credit facility, including under any Credit Facilities, or otherwise invest or apply such Net Proceeds in any manner not prohibited by this Indenture, and (2) elect to invest in additional assets prior to receiving the Net Proceeds attributable to any given Asset Sale (provided that such investment shall be made no earlier than the earliest of notice to the Trustee of the relevant Asset Sale, execution of a Restricted Subsidiary;definitive agreement for the relevant Asset Sale, and consummation of the relevant Asset Sale) and deem the amount so invested to be applied pursuant to and in accordance with clause (3) of Section 4.10(b) with respect to such Asset Sale.
(d) 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 laws or regulations are applicable in connection with the repurchase of the Notes pursuant to an Asset Sale Offer. To the extent that the provisions of any securities laws or regulations conflict with the provisions of this Indenture, the Issuer shall comply with the applicable securities laws and regulations and shall not be deemed to have breached its obligations described in this Indenture by virtue thereof.
(e) Except as described in clause (11) of Section 9.02, the provisions under this Indenture relative to the Issuer’s obligation to make an offer to repurchase the Notes as a result of an Asset Sale may be waived or modified with the written consent of the Holders of a majority in principal amount of the then outstanding Notes.
Appears in 1 contract
Asset Sales. (a) From and after the Completion Date, the Company VHS Holdco II shall not consummatenot, and shall not permit any of its Restricted Subsidiaries to consummateto, consummate an Asset Sale, Sale unless:
(1) the Company VHS Holdco II (or 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 (as determined in good faith by the Company at principal financial officer of VHS Holdco II or, in the time case of contractually agreeing to such Asset Saleassets and Equity Interests having a value in excess of $25.0 million, by the Board of Directors of VHS Holdco II) of the assets or Equity Interests issued or sold or otherwise disposed of; and
(2) except in the case of a Permitted Asset Swap, if the property or assets sold or otherwise disposed of have a fair market value in excess of the greater of $375.0 million and 50.0% of LTM EBITDA for the most recently ended Test Period at the time of such disposition, at least 75.075% of the consideration therefor received in the Asset Sale by the Company VHS Holdco II or such Restricted Subsidiary, as the case may be, Subsidiary is in the form of cash or Cash Equivalents; provided that the . The amount of:
of (A) any liabilities, contingent or otherwise, of the Company liabilities (as shown on VHS Holdco II’s or such Restricted Subsidiary, ’s most recent balance sheet or in the notes thereto) of VHS Holdco II or any Restricted Subsidiary (other than liabilities that are by their terms subordinated to the Notes or Notes) that are owed to the Company or a Restricted Subsidiary that (x) are assumed by the transferee of any such assets (or a third party in connection with such transfer) or (y) are otherwise cancelled or terminated in connection with the transaction with such transferee (other than intercompany debt owed to the Company or its Restricted Subsidiaries) and, in each case, and for which the Company VHS Holdco II and all of its Restricted Subsidiaries have been validly released,
released by all creditors in writing, (B) any securities, notes or other obligations or assets securi- ties received by the Company VHS Holdco II or such Restricted Subsidiary from such transferee that are converted by the Company VHS Holdco II or such Restricted Subsidiary into cash or Cash Equivalents (to the extent of the cash or Cash Equivalents received) within 180 days following the closing of such Asset Sale;
receipt thereof and (C) Indebtedness of any Restricted Subsidiary that ceases to be a Restricted Subsidiary as a result of such Asset Sale (other than intercompany debt owed to the Company or any Restricted Subsidiary), to the extent that the Company and each other Restricted Subsidiary are released from any guarantee of payment of the principal amount of such Indebtedness in connection with such Asset Sale in accordance with the terms of this Indenture;
(D) consideration consisting of Indebtedness of the Issuers or a Guarantor (other than intercompany debt owed to the Company or any Restricted Subsidiary and other than Subordinated Indebtedness) received after the Issue Date from Persons who are not the Company, Holdings or any Restricted Subsidiary;
(E) any Designated Non-cash Consideration received by the Company VHS Holdco II or such any of its Restricted Subsidiary Subsidiaries in such Asset Sale having an aggregate fair market value, value (as determined in good faith by the CompanyVHS Holdco II), taken together with all other Designated Non-cash Consideration received pursuant to this clause (EC) that is at that time outstanding, not to exceed the greater of (i) $225.0 50.0 million and 30.0(ii) 2.0% of LTM EBITDA for the most recently ended Test Period Total Assets at the time of the receipt of |US-DOCS\143900591.2|| such Designated Non-cash Consideration (with the fair market value of each such item of Designated Non-cash Consideration being measured pursuant to this clause (E) at the Company’s option, either at the time of contractually agreeing to such Asset Sale or at the time received and, in either case, without giving effect to subsequent changes in value); and
(F) any Investment, Capital Stock, assets, property or capital or other expenditure of the kind referred to in clauses (2) or (3) of Section 4.10(b) hereof shall be deemed to be Cash Equivalents cash for purposes of this provision Section 4.08(a)(2) and for no other purpose. Notwithstanding the foregoing, the 75% limitation referred to in this clause (2) of Section 4.08(a) shall not apply to any Asset Sale in which the amount of consideration of the type referred to this clause (2) of Section 4.08(a) received therefrom, determined in accordance with the foregoing provision, is equal to or greater than what the after-tax proceeds would have been had such Asset Sale complied with the aforementioned 75% limitation.
(b) Within 540 365 days after the receipt of any Net Proceeds of by VHS Holdco II or any Restricted Subsidiary from an Asset Sale (the “Proceeds Application Period”)Sale, the Company VHS Holdco II or such Restricted Subsidiary, at their option, Subsidiary may apply an amount equal to the those Net Proceeds from such Asset Sale,at its option to:
(1) to reduce, prepay, repay or purchase:
(A) to permanently reduce Obligations under the extent such Net Proceeds are from an Asset Sale of Collateral, Obligations with Pari Passu Lien Priority (including the Senior Credit Facilities or any Refinancing Indebtedness in respect thereof but other than Indebtedness owed to the Company or any Restricted Subsidiary), Agreement and, in the case of revolving obligationsObligations thereunder, to correspondingly reduce commitments with respect thereto, provided that, to thereto (or other Indebtedness of the extent either Issuer Issuers or any a Guarantor secured by a Lien) or Pari Passu Indebtedness or Indebtedness of a Restricted Subsidiary will so repay any such Indebtedness (other than the Notes), that is not a Guarantor; provided that if the Issuers or a Guarantor shall so reduce Obligations under such Pari Passu Indebtedness, it shall equally and ratably reduce Obligations under the Notes on a pro rata basis by, at their option, (i) redeeming Notes as provided under Section 3.07 hereof (ii) purchasing Notes through open-market purchases or (iii) by making an offer (in accordance with the procedures set forth herein below for an Asset Sale Offer) to all Holders of Notes to purchase their Notes at a purchase price equal to 100.0100% of the principal amount thereof, plus the amount of accrued but and unpaid interestinterest and Additional Interest, if any, on the pro rata principal amount of the Notes to be repurchased to the date Notes) or Indebtedness of repurchase;
(B) to the extent such Net Proceeds resulted from an Asset Sale a Restricted Subsidiary that is not consisting of Collateral, Obligations in respect of other Secured Indebtedness (which may include the Notes), anda Guarantor, in the each case of revolving commitments, to correspondingly reduce commitments with respect thereto;
(C) Obligations in respect of the Notes or any other Indebtedness (other than Subordinated Indebtedness) of the Company or any Restricted Subsidiary, other than Indebtedness owed to either of the Company Issuers or any Restricted Subsidiary an Affiliate of the Issuers (and, provided that in the case of any reduction of any revolving commitmentsobligations, to correspondingly reduce the Issuers or such Restricted Subsidiary shall effect a corresponding reduction of commitments with respect thereto), provided that, to the extent either Issuer or any Restricted Subsidiary will so repay any such Indebtedness (other than the Notes), the Issuers will reduce Obligations under the Notes on a pro rata basis by, at their option, (i) redeeming Notes as provided under Section 3.07 hereof or (ii) by making an offer (in accordance with the procedures set forth herein for an Asset Sale Offer) to all Holders to purchase their Notes at a purchase price equal to 100.0% of the principal amount thereof, plus the amount of accrued but unpaid interest, if any, on the principal amount of the Notes to be repurchased to the date of repurchase; or |US-DOCS\143900591.2||
(D) Obligations in respect of Indebtedness of a Non-Guarantor Subsidiary, other than Indebtedness owed to the Company or another Restricted Subsidiary; provided, in the case of clauses (A) or (C) above, (i) if an offer to purchase any Indebtedness of the Company or any Restricted Subsidiary is made, such amount will be deemed repaid to the extent of the amount of such offer, whether or not accepted by the holders of such Indebtedness, and no Net Proceeds in the amount of such offer will be deemed to exist following such offer, and (ii) if the holder of any Indebtedness of a Restricted Subsidiary of the Company declines the repayment of such Indebtedness owed to it from such Net Proceeds such amount will be deemed repaid to the extent of the declined Net Proceeds, or;
(2) to make an Investment investment in (A) any one or more businesses, ; provided that such Investment investment in any business is in the form of the acquisition of Capital Stock that and results in the Company VHS Holdco II or any a Restricted Subsidiary, as the case may be, Subsidiary owning an amount of the Capital Stock of such business such that such business it constitutes a Restricted Subsidiary, (B) capital expenditures or (C) other assets, in each of (A), (B) and (C), used or useful in a Permitted Business; and/or
(3) 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 it results in VHS Holdco II or a Restricted Subsidiary or increases the Company’s direct or indirect percentage ownership owning an amount of the Capital Stock of such business such that it constitutes a Restricted Subsidiary;, (B) properties or (C) assets that, in each of (A), (B) and (C), replace the businesses, properties and assets that are the subject of such Asset Sale; provided that the 365-day period provided above to apply any portion of Net Proceeds in accordance with clause (2) or (3) of this Section 4.08(b) shall be extended by an additional 180 days if by not later than the 365th day after receipt of such Net Proceeds, VHS Holdco II or a Restricted Subsidiary, as applicable, has entered into a bona fide binding commitment with a Person other than an Affiliate of the Issuers to make an investment of the type referred to in either such clause in the amount of such Net Proceeds.
(c) When the aggregate amount of Net Proceeds not applied or invested in accordance with the preceding paragraph (“Excess Proceeds”) exceeds $30.0 million, the Issuers shall make an Asset Sale Offer to all Holders of Notes and any other Pari Passu Indebtedness requiring the making of such an offer to purchase on a pro rata basis 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 shall be equal to 100% of the principal amount plus accrued and unpaid interest and Additional Interest, if any, to the date of purchase, and shall be payable in cash.
(d) Pending the final application of any Net Proceeds, VHS Holdco II or such Restricted Subsidiary may temporarily reduce revolving credit borrowings or otherwise invest the Net Proceeds in any manner that is not prohibited by this Indenture.
(e) If any Excess Proceeds remain after consummation of an Asset Sale Offer, the Issuers may use those Excess Proceeds for any purpose not otherwise prohibited by this Indenture. If the aggregate principal amount of Notes and such 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 shall be reset at zero.
(f) The Issuers shall comply with the requirements of Rule 14e-1 under the Exchange Act and any other securities laws and regulations thereunder to the extent those laws and regulations are applicable in connection with each repurchase of Notes pursuant to an Asset Sale Offer. To the extent that the provisions of any securities laws or regulations conflict with the Asset Sale provisions of this Indenture, the Issuers shall comply with the applicable securities laws and regulations and shall not be deemed to have breached their obligations under the Asset Sale provisions of this Indenture by virtue of such conflict.
Appears in 1 contract
Asset Sales. (a) From and after the Completion Date, the The Company shall not consummatenot, and shall not permit any of its the Restricted Subsidiaries to consummate, consummate an Asset Sale, unless:
(1i) the Company or such Restricted Subsidiary, as the case may be, receives consideration at the time of such Asset Sale at least equal to the fair market value (as such fair market value to be determined in good faith by the Company at the time of contractually agreeing to such Asset Sale) of the assets sold or otherwise disposed of; and;
(2ii) except in the case of a Permitted Asset Swap, if the property or assets sold or otherwise disposed of have a fair market value in excess of the greater of $375.0 million and 50.0% of LTM EBITDA for the most recently ended Test Period at the time of such disposition, at least 75.075% of the consideration therefor therefor, on a per transaction basis, received by the Company or such Restricted Subsidiary, as the case may be, is in the form of cash or Cash Equivalents; provided that the amount offollowing amounts shall be deemed to be Cash Equivalents for the purposes of this provision:
(A) any liabilitiesliabilities (as shown on the Company’s or such Restricted Subsidiary’s most recent balance sheet or in the footnotes thereto, contingent or, if incurred or otherwiseincreased 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 in the footnotes thereto if such incurrence or increase had taken place on or prior to the date of such balance sheet, as determined by the Company) of the Company or such Restricted Subsidiary, other than liabilities that are by their terms subordinated to the Notes or Notes, that are owed to the Company or a Restricted Subsidiary that (x) are assumed by the transferee of any such assets (or a third party in connection with such transfer) or (y) are otherwise cancelled or terminated in connection with the transaction with such transferee (other than intercompany debt owed to the Company or its Restricted Subsidiaries) and, in each case, and for which the Company and all of its the Restricted Subsidiaries have been validly released,released by all applicable creditors or indemnified in writing;
(B) any securities, notes or other obligations or assets received by the Company or such Restricted Subsidiary from such transferee that are converted by the Company or such Restricted Subsidiary into cash or Cash Equivalents (to the extent of the cash or Cash Equivalents received) within 180 days following the closing of such Asset Sale;
(C) Indebtedness of any Restricted Subsidiary that ceases to be a Restricted Subsidiary as a result of such Asset Sale (other than intercompany debt owed to the Company or any Restricted Subsidiary), to the extent that the Company and each other Restricted Subsidiary are released from any guarantee of payment of the principal amount of such Indebtedness in connection with such Asset Sale in accordance with the terms of this Indenture;
(D) consideration consisting of Indebtedness of the Issuers or a Guarantor (other than intercompany debt owed to the Company or any Restricted Subsidiary and other than Subordinated Indebtedness) received after the Issue Date from Persons who are not the Company, Holdings or any Restricted Subsidiary;
(E) any Designated Non-cash Consideration received by the Company or such any of the Restricted Subsidiary Subsidiaries in such Asset Sale having an aggregate fair market value, as determined by the Company, taken together with all other Designated Non-cash Consideration received pursuant to this clause (EC) that is at that time outstanding, not to exceed the greater of (i) $225.0 25.0 million and 30.0or (ii) 2.00% of LTM EBITDA for the most recently ended Test Period Consolidated Total Assets at the time of the receipt of |US-DOCS\143900591.2|| such Designated Non-cash Consideration (Consideration, with the fair market value of in each such item of Designated Non-cash Consideration case being measured pursuant to this clause (E) at the Company’s option, either at the time of contractually agreeing to such Asset Sale or at the time received and, in either case, and without giving effect to subsequent changes in value); and
(FD) any Investment, Capital Stock, assets, property stock or capital or other expenditure assets of the kind referred to in clauses (2A) or (3C) of Section 4.10(b4.10(b)(ii) hereof shall be deemed to be Cash Equivalents for purposes hereof; and
(iii) if such Asset Sale involves the disposition of Collateral, the Issuer or such Guarantor has complied with the provisions of this provision Indenture and for no other purposethe Collateral Documents.
(b) Within 540 365 days after the receipt of any Net Proceeds of any Asset Sale (the “Proceeds Application Period”)Sale, the Company or such Restricted Subsidiary, at their its option, may apply an amount equal to the Net Proceeds from such Asset Sale,
(1i) to reduce, prepay, repay reduce or purchaseoffer to reduce Indebtedness as follows:
(A) if the assets subject to the extent such Net Proceeds are from an Asset Sale of constitute Collateral, to permanently repay any ABL Debt or to reduce (or offer to reduce, as applicable) Obligations with Pari Passu Lien Priority (including under the Senior Credit Facilities or Notes and any Refinancing Indebtedness in respect thereof but other than Indebtedness owed to the Company or any Restricted Subsidiary), and, in the case of revolving obligations, to correspondingly reduce commitments with respect theretoAdditional Parity Debt on a pro rata basis, provided that, that all reductions of or offers to the extent either Issuer or any Restricted Subsidiary will so repay any such Indebtedness (other than the Notes), the Issuers shall reduce Obligations under the Notes on a pro rata basis by, at their option, (i) redeeming Notes shall be made as provided under Section 3.07 hereof (ii) purchasing Notes hereof, through open-market purchases (to the extent such purchases are at or (iiiabove 100% of the principal amount thereof plus accrued and unpaid interest, if any) or by making an offer (in accordance with the procedures set forth herein for an Asset Sale Offerin Section 3.09 and Section 4.10(c) hereof) to all Holders to purchase their Notes at a purchase price equal to 100.0% of the principal amount thereof, plus the amount of accrued but unpaid interest, if any, on the principal amount of the Notes to be repurchased to the date of repurchaserepurchased;
(B) if the assets subject to the extent such Net Proceeds resulted from an Asset Sale do not consisting of constitute Collateral, to reduce Obligations in respect of other Secured under Senior Indebtedness (that is secured by a Lien which may include the Notes), and, in the case of revolving commitments, to correspondingly reduce commitments with respect thereto;Lien is permitted by this Indenture; or
(C) if the assets subject to such Asset Sale do not constitute Collateral to permanently reduce (or offer to reduce) Obligations in respect of the Notes or any under other Senior Indebtedness (other than Subordinated Indebtedness) of the Company or any Restricted Subsidiary, other than Indebtedness owed to the Company or any Restricted Subsidiary (and, in the case of revolving commitments, and to correspondingly reduce commitments with respect thereto), provided thatthat the Issuer shall equally and ratably reduce (or offer to reduce, as applicable) Obligations under the Notes and any Additional Parity Debt on a pro rata basis, provided that all reductions of or offers to the extent either Issuer or any Restricted Subsidiary will so repay any such Indebtedness (other than the Notes), the Issuers will reduce Obligations under the Notes on a pro rata basis by, at their option, (i) redeeming Notes shall be made as provided under Section 3.07 hereof hereof, through open-market purchases (to the extent such purchases are at or (iiabove 100% of the principal amount thereof plus accrued and unpaid interest, if any) or by making an offer (in accordance with the procedures set forth herein for an Asset Sale Offerin Section 3.09 and Section 4.10(c) hereof) to all Holders to purchase their Notes at a purchase price equal to 100.0% of the principal amount thereof, plus the amount of accrued but unpaid interest, if any, on the principal amount of the Notes to be repurchased to the date of repurchaserepurchased; or |US-DOCS\143900591.2||or
(D) Obligations in respect if the assets subject to such Asset Sale are the property or assets of a Restricted Subsidiary that is not the Issuer or a Guarantor, to permanently reduce Indebtedness of (i) such Restricted Subsidiary that is not the Issuer or a Non-Guarantor SubsidiaryGuarantor, other than Indebtedness owed to the Company or another Restricted Subsidiary or (ii) the Issuer or a Guarantor; or
(ii) 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 Company or any of the Restricted Subsidiaries, as the case may be, owning an amount of the Capital Stock of such business such that it constitutes a Restricted Subsidiary; provided, (B) capital expenditures or (C) acquisitions of other assets in the case of clauses each of (A), (B) or and (C) above, that are used or useful in a Similar Business; provided that the assets (iincluding Capital Stock) if an offer to purchase any Indebtedness acquired with the Net Proceeds of the Company or any Restricted Subsidiary is made, such amount will be deemed repaid a disposition of Collateral are pledged as Collateral to the extent of required under the amount of such offer, whether or not accepted by the holders of such Indebtedness, and no Net Proceeds in the amount of such offer will be deemed to exist following such offer, and Collateral Documents (ii) if the holder of any Indebtedness of a Restricted Subsidiary of the Company declines the repayment of such Indebtedness owed to it from such Net Proceeds such amount will be deemed repaid except to the extent the Lien thereon is released in accordance with the terms of the declined Net Proceeds, Collateral Documents); or
(2iii) to make an Investment investment in (Aa) any one or more businesses, provided that such Investment in any business is in the form of the acquisition of Capital Stock that and results in the Company or any of the Restricted SubsidiarySubsidiaries, as the case may be, owning an amount of the Capital Stock of such business such that such business it constitutes a Restricted Subsidiary Subsidiary, (b) properties or increases (c) acquisitions of other assets, in the Company’s direct or indirect percentage ownership case of each of (a), (b) and (c) that replace the businesses, properties and/or assets that are subject of such Asset Sale; provided that the assets (including Capital Stock) acquired with the Net Proceeds of a disposition of Collateral are pledged as Collateral to the extent required under the Collateral Documents (except to the extent the Lien thereon is released in accordance with the terms of the Capital Stock Collateral Documents); provided that, in the case of clauses (ii) and (iii) above, a binding commitment entered into not later than such 365th day shall extend the period for such Investment or other payment for an additional 180 days after the end of such 365-day period so long as the Company 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 canceled or terminated for any reason before the Net Proceeds are applied in connection therewith, then such Net Proceeds shall constitute Excess Proceeds.
(c) Any Net Proceeds from the Asset Sale that are not invested or applied as provided and within the time period set forth in Section 4.10(b) hereof shall be deemed to constitute “Excess Proceeds.” When the aggregate amount of Excess Proceeds exceeds $25.0 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 in an amount equal to at least $2,000, that may be purchased out of the Excess Proceeds at an offer price in cash in an amount equal to 100.0% of the principal amount thereof (or accreted value thereof, if less), 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 $25.0 million by delivering the notice required pursuant to the terms of this Indenture, with a copy to the Trustee. The Issuer 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 365 days (or such longer period provided above) or with respect to Excess Proceeds of $25.0 million or less. 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 or any of its Subsidiaries 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 Pari Passu Indebtedness surrendered by such holders thereof exceeds the amount of Excess Proceeds, the Trustee shall select the Notes and the Issuer shall select such Pari Passu Indebtedness to be purchased on a pro rata basis (or pursuant to applicable depositary procedures) based on the accreted value or principal amount of the Notes or such Pari Passu Indebtedness tendered with adjustments as necessary so that no Notes or Pari Passu Indebtedness, as the case may be, will be repurchased in part in an unauthorized denomination. 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. Upon completion of any such Asset Sale Offer, the amount of Excess Proceeds that resulted in the Asset Sale Offer shall be reset to zero (regardless of whether there are any remaining Excess Proceeds upon such completion). Upon consummation or expiration of any Asset Sale Offer, any remaining Net Proceeds shall not be deemed Excess Proceeds and the Issuer may use such Net Proceeds for any purpose not otherwise prohibited under this Indenture.
(d) Pending the final application of any Net Proceeds pursuant to this Section 4.10, the holder of such Net Proceeds may apply such Net Proceeds temporarily to reduce Indebtedness outstanding under a revolving credit facility or otherwise invest such Net Proceeds in any manner not prohibited by this Indenture.
(e) 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 laws or regulations are applicable in connection with the repurchase of the Notes pursuant to an Asset Sale Offer. To the extent that the provisions of any securities laws or regulations conflict with the provisions of this Indenture, the Issuer shall comply with the applicable securities laws and regulations and shall not be deemed to have breached its obligations described in this Indenture by virtue thereof. The provisions of Section 3.09 hereof and this Section 4.10 may be waived or modified with the written consent of the Holders of a Restricted Subsidiary;majority in principal amount of the Notes then outstanding.
Appears in 1 contract
Sources: Indenture (SunOpta Inc.)
Asset Sales. (a) From and after the Completion Date, the Company Revel shall not consummatenot, and shall not permit any of its Restricted Subsidiaries to consummateto, consummate an Asset Sale, Sale unless:
(1) Revel (or the Company or 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 Fair Market Value of (as determined in good faith by the Company at the time of contractually agreeing to such Asset Salea) of the assets or (b) the Equity Interests issued or sold or otherwise disposed of; and
(2) except in the case of a Permitted Asset Swap, if the property or assets sold or otherwise disposed of have a fair market value in excess of the greater of $375.0 million and 50.0% of LTM EBITDA for the most recently ended Test Period at the time of such disposition, at least 75.075% of the consideration therefor received in the Asset Sale by the Company Revel or such Restricted Subsidiary, as the case may be, Subsidiary is in the form of (i) Permitted Business Assets or (ii) cash or Cash Equivalents; provided that . For purposes of this provision, each of the amount offollowing will be deemed to be cash:
(Ai) any liabilities, contingent or otherwise, as shown on the most recent consolidated balance sheet (including the footnotes) of Revel and the Company or such Restricted Subsidiary, Subsidiaries (other than contingent liabilities and liabilities that are by their terms subordinated to the Notes or any Note Guarantee) that are owed to the Company or a Restricted Subsidiary that (x) are assumed by the transferee of any such assets (and from which Revel or a third party in connection with such transfer) or (y) Restricted Subsidiary, as applicable, are otherwise cancelled or terminated in connection with the transaction with such transferee (other than intercompany debt owed to the Company or its Restricted Subsidiaries) released; and, in each case, for which the Company and all of its Restricted Subsidiaries have been validly released,
(Bii) any securities, notes Notes or other obligations obligations, instruments, or assets received by the Company Revel or such any Restricted Subsidiary from such transferee that are converted within 180 days after receipt thereof by the Company Revel or such Restricted Subsidiary into cash or Cash Equivalents (Equivalents, to the extent of the cash or Cash Equivalents received) within 180 days following the closing of such Asset Sale;
(C) Indebtedness of any Restricted Subsidiary received in that ceases to be a Restricted Subsidiary as a result of such Asset Sale (other than intercompany debt owed to the Company or any Restricted Subsidiary), to the extent that the Company and each other Restricted Subsidiary are released from any guarantee of payment of the principal amount of such Indebtedness in connection with such Asset Sale in accordance with the terms of this Indenture;
(D) consideration consisting of Indebtedness of the Issuers or a Guarantor (other than intercompany debt owed to the Company or any Restricted Subsidiary and other than Subordinated Indebtedness) received after the Issue Date from Persons who are not the Company, Holdings or any Restricted Subsidiary;
(E) any Designated Non-cash Consideration received by the Company or such Restricted Subsidiary in such Asset Sale having an aggregate fair market value, as determined by the Company, taken together with all other Designated Non-cash Consideration received pursuant to this clause (E) that is at that time outstanding, not to exceed the greater of $225.0 million and 30.0% of LTM EBITDA for the most recently ended Test Period at the time of the receipt of |US-DOCS\143900591.2|| such Designated Non-cash Consideration (with the fair market value of each such item of Designated Non-cash Consideration being measured pursuant to this clause (E) at the Company’s option, either at the time of contractually agreeing to such Asset Sale or at the time received and, in either case, without giving effect to subsequent changes in value); and
(F) any Investment, Capital Stock, assets, property or capital or other expenditure of the kind referred to in clauses (2) or (3) of Section 4.10(b) hereof shall be deemed to be Cash Equivalents for purposes of this provision and for no other purposeconversion.
(b) Within 540 365 days after the receipt of any Net Proceeds of any Asset Sale (the “Proceeds Application Period”), the Company or such Restricted Subsidiary, at their option, may apply an amount equal to the Net Proceeds from such Asset Sale,
(1) to reduce, prepay, repay or purchase:
(A) to the extent such Net Proceeds are from an Asset Sale of CollateralSale, Obligations with Pari Passu Lien Priority Revel (including or the Senior Credit Facilities or any Refinancing Indebtedness in respect thereof but other than Indebtedness owed to the Company or any Restricted Subsidiary), and, in the case of revolving obligations, to correspondingly reduce commitments with respect thereto, provided that, to the extent either Issuer or any Restricted Subsidiary will so repay any such Indebtedness (other than the Notes), the Issuers shall reduce Obligations under the Notes on a pro rata basis by, at their option, (i) redeeming Notes as provided under Section 3.07 hereof (ii) purchasing Notes through open-market purchases or (iii) by making an offer (in accordance with the procedures set forth herein for an Asset Sale Offer) to all Holders to purchase their Notes at a purchase price equal to 100.0% of the principal amount thereof, plus the amount of accrued but unpaid interest, if any, on the principal amount of the Notes to be repurchased to the date of repurchase;
(B) to the extent such Net Proceeds resulted from an Asset Sale not consisting of Collateral, Obligations in respect of other Secured Indebtedness (which may include the Notes), and, in the case of revolving commitments, to correspondingly reduce commitments with respect thereto;
(C) Obligations in respect of the Notes or any other Indebtedness (other than Subordinated Indebtedness) of the Company or any Restricted Subsidiary, other than Indebtedness owed to the Company or any Restricted Subsidiary (and, in the case of revolving commitments, to correspondingly reduce commitments with respect thereto), provided that, to the extent either Issuer or any Restricted Subsidiary will so repay any such Indebtedness (other than the Notes), the Issuers will reduce Obligations under the Notes on a pro rata basis by, at their option, (i) redeeming Notes as provided under Section 3.07 hereof or (ii) by making an offer (in accordance with the procedures set forth herein for an Asset Sale Offer) to all Holders to purchase their Notes at a purchase price equal to 100.0% of the principal amount thereof, plus the amount of accrued but unpaid interest, if any, on the principal amount of the Notes to be repurchased to the date of repurchase; or |US-DOCS\143900591.2||
(D) Obligations in respect of Indebtedness of a Non-Guarantor Subsidiary, other than Indebtedness owed to the Company or another Restricted Subsidiary; provided, in the case of clauses (A) or (C) above, (i) if an offer to purchase any Indebtedness of the Company or any Restricted Subsidiary is made, such amount will be deemed repaid to the extent of the amount of such offer, whether or not accepted by the holders of such Indebtedness, and no Net Proceeds in the amount of such offer will be deemed to exist following such offer, and (ii) if the holder of any Indebtedness of a Restricted Subsidiary of the Company declines the repayment of such Indebtedness owed to it from such Net Proceeds such amount will be deemed repaid to the extent of the declined Net Proceeds, or
(2) 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 that results in the Company or any applicable Restricted Subsidiary, as the case may be) may, owning at its option, apply such Net Proceeds to:
(1) repay, repurchase or redeem senior secured Indebtedness of Revel or any Restricted Subsidiary that is secured by Liens equal or senior in priority to the Liens securing the Notes and/or the Note Guarantees, as applicable, and, if the Indebtedness repaid is revolving credit Indebtedness, to correspondingly permanently reduce the commitments with respect to that Indebtedness;
(2) make a capital expenditure, improve real property or acquire long-term assets that are Permitted Business Assets; provided that to the extent the Net Proceeds being applied are from an Asset Sale of an asset that was Collateral securing the Notes or a Note Guarantee, the assets acquired with such Net Proceeds shall be pledged as Collateral securing the Notes or a Note Guarantee and shall not constitute Excluded Assets (notwithstanding that such assets may be of a type that would otherwise constitute Excluded Assets); provided further that if the assets that were the subject of such Asset Sale were Excluded Assets or did not otherwise constitute Collateral, the assets acquired shall not be required to be pledged as Collateral;
(3) enter into a binding commitment to take, within 12 months after the date of such commitment, any of the actions in the foregoing clauses (1) and (2); or
(4) any combination of the actions listed in the foregoing clauses (1) through (3). Revel (or such Restricted Subsidiary, as the case may be) shall comply with the terms of the Collateral Documents with respect to the continuation or granting of a security interest (subject to Permitted Liens and the terms of the Intercreditor Agreement) on any property or assets acquired or constructed with the Net Proceeds of any Asset Sale. Pending the final application of any Net Proceeds, Revel (or such Restricted Subsidiary, as the case may be) may, at its option, (1) apply the Net Proceeds to temporarily reduce amounts outstanding under any senior secured revolving credit Indebtedness of Revel or any Restricted Subsidiary, (2) invest the Net Proceeds in Cash Equivalents, which will be subject to a security interest (subject to Permitted Liens and the terms of the Intercreditor Agreement) in favor of the Trustee, on behalf of the Holders of Notes, as security for the Notes or (3) otherwise invest or apply the Net Proceeds in any manner that is not prohibited by this Indenture. The Credit Agreement requires Revel and the Restricted Subsidiaries, in certain circumstances, to apply the Net Proceeds from an Asset Sale to repay any loans outstanding under the Credit Agreement, and any revolving credit agreement entered into in the future may be subject to a similar requirement. In such circumstances, until the debt under the Credit Agreement and any such future revolving credit agreement has been repaid in full, there will not be any Net Proceeds.
(c) Any Net Proceeds from Asset Sales that are not applied or invested as provided in 4.10(b) shall constitute “Excess Proceeds.” Within 30 days following the date on which the aggregate amount of Excess Proceeds exceeds $50.0 million, Revel will make an offer (an “Asset Sale Offer”) to all Holders of Notes, to purchase the Capital Stock maximum principal amount (or accreted value, if applicable) of the Notes that may be purchased out of the amount of Excess Proceeds. To the extent that the aggregate principal amount (or accreted value, if applicable) of the Notes tendered into the Asset Sale Offer is less than the principal amount (or accreted value, if applicable) of Notes offered to be purchased in the Asset Sale Offer, Revel and its Restricted Subsidiaries may use those remaining Excess Proceeds for any purpose not otherwise prohibited by this Indenture. If the aggregate principal amount (or accreted value, if applicable) of Notes tendered into the Asset Sale Offer exceeds the amount of Excess Proceeds, the Trustee will select such Notes to be purchased on a pro rata basis (with such adjustments as may be deemed appropriate by Revel so that only Notes in denominations of $2,000, or an integral multiple of $1,000 in excess of $2,000, will be purchased, other than any PIK Notes) or otherwise pursuant to Section 3.02, as applicable. Upon completion of each Asset Sale Offer, the amount of Excess Proceeds will be reset at zero. The offer price in any Asset Sale Offer will be equal to 100% of principal amount plus accrued and unpaid interest, if any, to but not including the date of purchase, and will be payable in cash. Upon completion of each Asset Sale Offer, the amount of Excess Proceeds will be reset at zero. If the payment date in connection with a Asset Sale Offer is on or after an interest record date and on or before the associated interest payment date, any accrued and unpaid interest, if any, due on such interest payment date will be paid to the Person in whose name a Note is registered at the close of business on such record date, and such interest will not be payable to holders who tender Notes pursuant to such Asset Sale Offer. Revel shall comply with the requirements of Rule 14e-1 under the Exchange Act and any other securities laws and regulations thereunder to the extent these laws and regulations are applicable in connection with each repurchase of Notes pursuant to an Asset Sale Offer. To the extent that the provisions of any securities laws or regulations conflict with the provisions of Section 3.10 and this Section 4.10 of this Indenture, Revel will comply with the applicable securities laws and regulations and will not be deemed to have breached its obligations under Section 3.10 or this Section 4.10 by virtue of such business such that such business constitutes a Restricted Subsidiary or increases the Company’s direct or indirect percentage ownership of the Capital Stock of a Restricted Subsidiary;compliance.
Appears in 1 contract
Asset Sales. (a) From and after the Completion Date, the The Company shall not consummatenot, and shall not permit any of its Restricted Subsidiaries to consummateto, consummate an Asset Sale, Sale unless:
(1i) the Company (or such the Restricted Subsidiary, as the case may be, ) receives consideration at the time of such Asset Sale at least equal to the fair market value (as determined in good faith by the Company at the time of contractually agreeing to such Asset Sale) of the assets or Equity Interests issued or sold or otherwise disposed of; and;
(2ii) except in the case event of a Permitted an Asset Swap, if the property or Sale involving assets sold or otherwise disposed of have having a fair market value in excess of $5.0 million, such fair market value is determined by the greater of $375.0 million Company’s chief financial officer and 50.0% of LTM EBITDA for evidenced by an Officers’ Certificate delivered to the most recently ended Test Period at the time of such disposition, Trustee; and
(iii) at least 75.075% of the consideration therefor received by the Company or such Restricted Subsidiary, as the case may be, Subsidiary is in the form of cash or Cash Equivalents; provided that . For purposes of this provision, each of the amount offollowing shall be deemed to be cash:
(A) any liabilities, contingent liabilities (as shown on the Company’s or otherwise, such Restricted Subsidiary’s most recent balance sheet) of the Company or such any Restricted Subsidiary, Subsidiary (other than contingent liabilities and liabilities that are by their terms subordinated to the Notes or any Subsidiary Guarantee) that are owed to the Company or a Restricted Subsidiary that (x) are assumed by the transferee of any such assets (or pursuant to a third party in connection with such transfer) or (y) are otherwise cancelled or terminated in connection with the transaction with such transferee (other than intercompany debt owed to customary novation agreement that releases the Company or its such Restricted Subsidiaries) and, in each case, for which the Company and all of its Restricted Subsidiaries have been validly released,Subsidiary from further liability;
(B) any securities, notes or other obligations or assets received by the Company or any such Restricted Subsidiary from such transferee that are converted by the Company or such Restricted Subsidiary into cash or Cash Equivalents (to the extent of the cash or Cash Equivalents receivedreceived in that conversion) within 180 90 days following the closing of such Asset Salereceipt thereof;
(C) Indebtedness of any Restricted Subsidiary that ceases to be a Restricted Subsidiary as a result of such Asset Sale (other than intercompany debt owed to the Company or any Restricted Subsidiary), to the extent that the Company and each other Restricted Subsidiary are released from any guarantee of payment of the principal amount of such Indebtedness in connection with such Asset Sale in accordance with the terms of this Indenture;
(D) consideration consisting of Indebtedness of the Issuers or a Guarantor (other than intercompany debt owed to the Company or any Restricted Subsidiary and other than Subordinated Indebtedness) received after the Issue Date from Persons who are not the Company, Holdings or any Restricted Subsidiary;
(E) any Designated Non-cash Cash Consideration received by the Company or such any of its Restricted Subsidiary Subsidiaries in such Asset Sale having an aggregate fair market value, as determined by the Company, taken together with all other Designated Non-cash Cash Consideration received since the date of this Indenture pursuant to this clause (EC) that is at that time outstanding, not to exceed the greater of (i) $225.0 20.0 million and 30.0(ii) 2.0% of LTM EBITDA for the most recently ended Test Period Total Tangible Assets at the time of the receipt of |US-DOCS\143900591.2|| such Designated Non-cash Cash Consideration (with the fair market value of each such item of Designated Non-cash Cash Consideration being measured pursuant to this clause (E) at the Company’s option, either at the time of contractually agreeing to such Asset Sale or at the time received and, in either case, and without giving effect to subsequent changes in value); and
(FD) any Investment, Capital Stock, assets, property or capital or other expenditure of the kind referred to assets described in clauses (2Section 4.10(b)(iii) or (3) of Section 4.10(b) hereof shall be deemed to be Cash Equivalents for purposes of this provision and for no other purposeiv).
(b) Within 540 365 days after the receipt of any Net Proceeds of any from an Asset Sale (the “Proceeds Application Period”)Sale, the Company or such Restricted Subsidiary, at their option, may apply an amount equal to the such Net Proceeds from such Asset Sale,
(1) to reduce, prepay, repay or purchaseat its option:
(Ai) to the extent such Net Proceeds are from an Asset Sale of Collateral, Obligations with Pari Passu Lien Priority repay Senior Debt or Guarantor Senior Debt (including the Senior Credit Facilities or any Refinancing Indebtedness in respect thereof but other than Indebtedness owed to the Company or any Restricted Subsidiary), and, in the case of revolving obligations, and to correspondingly reduce commitments with respect thereto, provided that, to if the extent either Issuer Senior Debt or any Restricted Subsidiary will so repay any such Indebtedness (other than the NotesGuarantor Senior Debt repaid is revolving credit borrowings), the Issuers shall reduce Obligations under the Notes on a pro rata basis by, at their option, (i) redeeming Notes as provided under Section 3.07 hereof ;
(ii) purchasing Notes through open-market purchases to acquire all or substantially all of the assets of, or all or a majority of the Voting Stock of, another Permitted Business;
(iii) to make a capital expenditure in assets that are used or useable in a Permitted Business;
(iv) to acquire other assets that are used or useable in a Permitted Business; and/or
(v) any combination of the foregoing. Pending the final application of any such Net Proceeds, the Company may temporarily reduce revolving credit borrowings or otherwise invest such Net Proceeds in any manner that is not prohibited by making an offer this Indenture.
(c) Any Net Proceeds from Asset Sales that are not applied or invested as provided in accordance with Section 4.10(b) will constitute “Excess Proceeds.” When the procedures set forth herein for aggregate amount of Excess Proceeds exceeds $15.0 million, the Company will make an Asset Sale Offer) 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 their or redeem with the proceeds of sales of assets, to purchase the maximum principal amount of Notes at a purchase 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 100.0100% of the principal amount thereof, plus the amount of accrued but and unpaid interestinterest and Additional Interest, if any, on the principal amount of the Notes to be repurchased to the date of repurchase;
(B) to the extent such Net purchase, and will be payable in cash. If any Excess Proceeds resulted from remain after consummation of an Asset Sale Offer, the Company may use such Excess Proceeds for any purpose not consisting otherwise prohibited by this Indenture. If the aggregate principal amount of CollateralNotes and such other pari passu Indebtedness tendered into such Asset Sale Offer exceeds the amount of Excess Proceeds, Obligations in respect of other Secured Indebtedness (which may include the Notes), and, in the case of revolving commitments, to correspondingly reduce commitments with respect thereto;
(C) Obligations in respect of Trustee shall select the Notes or any and such other pari passu Indebtedness (other than Subordinated Indebtedness) of the Company or any Restricted Subsidiary, other than Indebtedness owed to the Company or any Restricted Subsidiary (and, in the case of revolving commitments, to correspondingly reduce commitments with respect thereto), provided that, to the extent either Issuer or any Restricted Subsidiary will so repay any such Indebtedness (other than the Notes), the Issuers will reduce Obligations under the Notes be purchased on a pro rata basis bybasis. Upon completion of each Asset Sale Offer, the amount of Excess Proceeds shall be reset at their option, zero.
(id) redeeming Notes as provided under Section 3.07 hereof or (ii) by making an offer (in accordance The Company will comply with the procedures set forth herein for requirements of Rule 14e-1 under the Exchange Act (unless Rule 14d-1(b) under the Exchange Act shall apply) and any other securities laws and regulations thereunder to the extent those laws and regulations are applicable in connection with each purchase of Notes pursuant to an Asset Sale Offer) to all Holders to purchase their Notes at a purchase price equal to 100.0% . If the provisions of any securities laws or regulations conflict with the principal amount thereofAsset Sale provisions of this Indenture, plus the amount of accrued but unpaid interest, if any, on the principal amount of the Notes to be repurchased to the date of repurchase; or |US-DOCS\143900591.2||
(D) Obligations in respect of Indebtedness of a Non-Guarantor Subsidiary, other than Indebtedness owed to the Company or another Restricted Subsidiary; provided, in will comply with the case of clauses (A) or (C) above, (i) if an offer to purchase any Indebtedness of the Company or any Restricted Subsidiary is made, such amount applicable securities laws and regulations and will be deemed repaid to the extent of the amount of such offer, whether or not accepted by the holders of such Indebtedness, and no Net Proceeds in the amount of such offer will be deemed to exist following such offer, and (ii) if have breached its obligations under the holder Asset Sale provisions of any Indebtedness of a Restricted Subsidiary of the Company declines the repayment this Indenture by virtue of such Indebtedness owed to it from such Net Proceeds such amount will be deemed repaid to the extent of the declined Net Proceeds, or
(2) 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 that results in the Company or any Restricted Subsidiary, as the case may be, owning an amount of the Capital Stock of such business such that such business constitutes a Restricted Subsidiary or increases the Company’s direct or indirect percentage ownership of the Capital Stock of a Restricted Subsidiary;conflict.
Appears in 1 contract
Asset Sales. (a) From and after the Completion Date, the The Company shall not consummatewill not, and shall will not permit any of its Restricted Subsidiaries to consummateto, consummate an Asset Sale, Sale unless:
(1) the Company (or such 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 (as determined in good faith by the Company at the time of contractually agreeing to such Asset Sale) Fair Market Value of the property and assets or Equity Interests issued or sold or otherwise disposed of; and;
(2) except in the case of a Permitted Asset Swap, if the property or assets sold or otherwise disposed of have a fair market value in excess of the greater of $375.0 million and 50.0% of LTM EBITDA for the most recently ended Test Period at the time of such disposition, at least 75.075% of the consideration therefor received in the Asset Sale by the Company or such Restricted Subsidiary, as the case may be, Subsidiary is in the form of cash or Cash Equivalents; provided that . For purposes of this provision, each of the amount offollowing will be deemed to be cash:
(A) any liabilities, contingent or otherwiseas shown on the Company's most recent consolidated balance sheet, of the Company or such any Restricted Subsidiary, Subsidiary (other than contingent liabilities and liabilities that are by their terms subordinated to the Notes or any Subsidiary Guarantee) that are owed to the Company or a Restricted Subsidiary that (x) are assumed by the transferee of any such assets (or and as a third party in connection with such transfer) or (y) are otherwise cancelled or terminated in connection with the transaction with such transferee (other than intercompany debt owed to result of which the Company or its such Restricted Subsidiaries) and, in each case, for which the Company and all of its Restricted Subsidiaries have been validly released,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 are converted by the Company or such Restricted Subsidiary within 15 days of receipt thereof into cash or Cash Equivalents (Equivalents, to the extent of the cash or Cash Equivalents received) within 180 days following the closing of such Asset Sale;received in that conversion; and
(C) Indebtedness of any Restricted Subsidiary that ceases to be a Restricted Subsidiary as a result of such Asset Sale (other than intercompany debt owed to the Company or any Restricted Subsidiary), to the extent that the Company and each other Restricted Subsidiary are released from any guarantee of payment of the principal amount of such Indebtedness in connection with such Asset Sale in accordance with the terms of this Indenture;
(D) consideration consisting of Indebtedness of the Issuers or a Guarantor (other than intercompany debt owed to the Company or any Restricted Subsidiary and other than Subordinated Indebtedness) received after the Issue Date from Persons who are not the Company, Holdings or any Restricted Subsidiary;
(E) any Designated Non-cash Consideration received by the Company or such Restricted Subsidiary in such Asset Sale having an aggregate fair market value, as determined by the Company, taken together with all other Designated Non-cash Consideration received pursuant to this clause (E) that is at that time outstanding, not to exceed the greater of $225.0 million and 30.0% of LTM EBITDA for the most recently ended Test Period at the time of the receipt of |US-DOCS\143900591.2|| such Designated Non-cash Consideration (with the fair market value of each such item of Designated Non-cash Consideration being measured pursuant to this clause (E) at the Company’s option, either at the time of contractually agreeing to such Asset Sale or at the time received and, in either case, without giving effect to subsequent changes in value); and
(F) any Investment, Capital Stock, assets, property or capital assets that are used or other expenditure of the kind referred to useful in clauses (2) or (3) of Section 4.10(b) hereof shall be deemed to be Cash Equivalents for purposes of this provision and for no other purpose.
(b) a Permitted Business. Within 540 360 days after the receipt of any Net Proceeds of any from an Asset Sale (the “Proceeds Application Period”)Sale, the Company (or such the applicable Restricted Subsidiary, at their option, as the case may be) may apply an amount equal to the such Net Proceeds from such Asset Sale,Proceeds:
(1) to reduce, prepay, repay or purchase:
(A) to the extent such Net Proceeds are from an Asset Sale of Collateral, Indebtedness and other First Lien Obligations with Pari Passu Lien Priority (including the Senior Credit Facilities or any Refinancing Indebtedness in respect thereof but other than Indebtedness owed to the Company or any Restricted Subsidiary), and, in if the case of Indebtedness repaid is revolving obligationscredit Indebtedness, to correspondingly reduce commitments with respect thereto, provided that, to the extent either Issuer or any Restricted Subsidiary will so repay any such Indebtedness (other than the Notes), the Issuers shall reduce Obligations under the Notes on a pro rata basis by, at their option, (i) redeeming Notes as provided under Section 3.07 hereof (ii) purchasing Notes through open-market purchases or (iii) by making an offer (in accordance with the procedures set forth herein for an Asset Sale Offer) to all Holders to purchase their Notes at a purchase price equal to 100.0% of the principal amount thereof, plus the amount of accrued but unpaid interest, if any, on the principal amount of the Notes to be repurchased to the date of repurchase;
(B) to the extent such Net Proceeds resulted from an Asset Sale not consisting of Collateral, Obligations in respect of other Secured Indebtedness (which may include the Notes), and, in the case of revolving commitments, to correspondingly permanently reduce commitments with respect thereto;
(C2) Obligations in respect to acquire all or substantially all of the Notes assets of, or any other Indebtedness Capital Stock of, another Permitted Business (other than Subordinated Indebtedness) or enter into a definitive agreement committing to make such an acquisition within 60 days after the later of the Company or any Restricted Subsidiary, other than Indebtedness owed to the Company or any Restricted Subsidiary (and, in the case of revolving commitments, to correspondingly reduce commitments with respect thereto), provided that, to the extent either Issuer or any Restricted Subsidiary will so repay any such Indebtedness (other than the Notes), the Issuers will reduce Obligations under the Notes on a pro rata basis by, at their option, (i) redeeming Notes as provided under Section 3.07 hereof or the date of such agreement and (ii) by making an offer (in accordance with 360 days after the procedures set forth herein for an Asset Sale Offer) to all Holders to purchase their Notes at a purchase price equal to 100.0% receipt of the principal amount thereof, plus the amount of accrued but unpaid interest, if any, on the principal amount of the Notes Net Proceeds to be repurchased used for such purpose), if, after giving effect to any such acquisition of Capital Stock, the date Permitted Business is or becomes a Restricted Subsidiary of repurchase; or |US-DOCS\143900591.2||
(D) Obligations in respect of Indebtedness of a Non-Guarantor Subsidiary, other than Indebtedness owed to the Company or another Restricted Subsidiary; provided, in ;
(3) to make a capital expenditure (or enter into a definitive agreement committing to make such a capital expenditure within 60 days after the case later of clauses (A) or (C) above, (i) if an offer to purchase any Indebtedness of the Company or any Restricted Subsidiary is made, such amount will be deemed repaid to the extent of the amount date of such offer, whether or not accepted by the holders of such Indebtedness, and no Net Proceeds in the amount of such offer will be deemed to exist following such offer, agreement and (ii) if 360 days after the holder receipt of the Net Proceeds to be used for such purpose);
(4) to acquire other assets that are not classified as current assets under GAAP and that are used or useful in a Permitted Business; or
(5) a combination of the foregoing clauses (1), (2), (3) and (4). 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 preceding paragraphs will constitute "Excess Proceeds." When the aggregate amount of Excess Proceeds exceeds $5.0 million, within ten Business Days thereof, the Company will make an Asset Sale Offer to all Holders of Notes, and to 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 a Restricted Subsidiary sales of assets, to purchase or redeem the maximum principal amount of Notes and such other PARI PASSU Indebtedness that may be purchased or redeemed out of the Company declines the repayment of such Indebtedness owed to it from such Net Proceeds such amount Excess Proceeds. The offer price in any Asset Sale Offer will be deemed repaid equal to 100% of the principal amount plus accrued and unpaid interest and Liquidated Damages, 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 will select the Notes and such other PARI PASSU Indebtedness to be purchased on a PRO RATA basis. Upon completion of each Asset Sale Offer, the amount of Excess Proceeds will be reset at zero. The Company will comply with the requirements of Rule 14e-l under the Exchange Act and any other securities laws and regulations thereunder to the extent those laws and regulations are applicable in connection with each repurchase of Notes pursuant to an Asset Sale Offer. To the declined Net Proceedsextent that the provisions of any securities laws or regulations conflict with this Section 4.10, or
(2) 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 that results in the Company or any Restricted Subsidiary, as will comply with the case may be, owning an amount of the Capital Stock applicable securities laws and regulations and will not be deemed to have breached its obligations under this Section 4.10 by virtue of such business such that such business constitutes a Restricted Subsidiary or increases the Company’s direct or indirect percentage ownership of the Capital Stock of a Restricted Subsidiary;compliance.
Appears in 1 contract
Sources: Indenture (National Coal Corp)
Asset Sales. (a) From and after the Completion Date, the The Company shall not consummatenot, and shall not cause or permit any of its Restricted Subsidiaries to consummateto, directly or indirectly, consummate an Asset Sale, unless:
Sale unless (1) at least 75% of the consideration from such Asset Sale is received in cash or Cash Equivalents and (2) the Company or such Restricted Subsidiary, as the case may be, receives consideration at the time of such Asset Sale at least equal to the fair market value (as determined in good faith by the Company at the time Fair Market Value of contractually agreeing assets or Capital Stock subject to such Asset Sale. For purposes of paragraph (a)(1) above, the following shall be deemed to be cash: (A) the amount of any Indebtedness (other than any Subordinated Indebtedness) of the assets sold Company or otherwise disposed of; and
any Restricted Subsidiary that is actually assumed by the transferee in such Asset Sale and from which the Company and the Restricted Subsidiaries are fully and unconditionally released (2) except excluding any liabilities that are incurred in the case of a Permitted Asset Swap, if the property connection with or assets sold or otherwise disposed of have a fair market value in excess of the greater of $375.0 million and 50.0% of LTM EBITDA for the most recently ended Test Period at the time anticipation of such dispositionAsset Sale and contingent liabilities), at least 75.0% (B) the amount of the consideration therefor any notes, securities or other similar obligations received by the Company or such Restricted Subsidiary, as the case may be, is in the form of cash or Cash Equivalents; provided that the amount of:
(A) any liabilities, contingent or otherwise, of the Company or such Restricted Subsidiary, other than liabilities that are by their terms subordinated to the Notes or that are owed to the Company or a Restricted Subsidiary that (x) are assumed by the transferee of any such assets (or a third party in connection with such transfer) or (y) are otherwise cancelled or terminated in connection with the transaction with such transferee (other than intercompany debt owed to the Company or its Restricted Subsidiaries) and, in each case, for which the Company and all of its Restricted Subsidiaries have been validly released,
(B) any securities, notes or other obligations or assets received by the Company or such Restricted Subsidiary from such transferee that are converted immediately converted, sold or exchanged (or are converted, sold or exchanged within 90 days of the related Asset Sale) by the Company or such the Restricted Subsidiary Subsidiaries into cash or Cash Equivalents (in an amount equal to the extent of the net cash proceeds realized upon such conversion, sale or Cash Equivalents received) within 180 days following the closing of such Asset Sale;
exchange, and (C) Indebtedness of any Restricted Subsidiary that ceases to be a Restricted Subsidiary as a result of such Asset Sale (other than intercompany debt owed to the Company or any Restricted Subsidiary), to the extent that the Company and each other Restricted Subsidiary are released from any guarantee of payment of the principal amount of such Indebtedness in connection with such Asset Sale in accordance with the terms of this Indenture;
(D) consideration consisting of Indebtedness of the Issuers or a Guarantor (other than intercompany debt owed to the Company or any Restricted Subsidiary and other than Subordinated Indebtedness) received after the Issue Date from Persons who are not the Company, Holdings or any Restricted Subsidiary;
(E) any Designated Non-cash Consideration received by the Company or such any of its Restricted Subsidiary Subsidiaries in such the Asset Sale having an aggregate fair market value, as determined by the Company, taken together with all other Designated Non-cash Consideration received pursuant to this clause (E) that is at that time outstanding, not to exceed the greater of $225.0 million and 30.0% of LTM EBITDA for the most recently ended Test Period at the time of the receipt of |US-DOCS\143900591.2|| such Designated Non-cash Consideration (with the fair market value of each such item of Designated Non-cash Consideration being measured pursuant to this clause (E) at the Company’s option, either at the time of contractually agreeing to such Asset Sale or at the time received and, in either case, without giving effect to subsequent changes in value); and
(F) any Investment, Capital Stock, assets, property or capital or other expenditure of the kind referred to in clauses (2) or (3) of Section 4.10(b) hereof shall be deemed to be Cash Equivalents for purposes of this provision and for no other purposeSale.
(b) Within 540 365 days after the receipt of any Net Cash Proceeds from an Asset Sale, all or a portion of such proceeds may be applied by the Company or a Restricted Subsidiary, to the extent the Company or such Restricted Subsidiary elects (or is required by the terms of any Indebtedness under the Credit Agreement):
(1) to prepay permanently or repay permanently any First Priority Lien Obligations then outstanding as required by the terms thereof (and in the case of any such Indebtedness under a revolving credit facility, effect a permanent reduction in the availability under such revolving credit facility), or
(2) if the Company or such Restricted Subsidiary determines not to apply such Net Cash Proceeds to the permanent repayment or permanent prepayment of any First Priority Lien Obligations, or if no such First Priority Lien Obligations are then outstanding, to acquire (A) 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 Company, or (B) properties and other assets that (as determined by the Board of Directors of the Company) replace the properties and assets that were the subject of the Asset Sale or in properties and assets that will be used in the businesses of the Company or its Restricted Subsidiaries (including pursuant to capital expenditures) existing on the date of this Indenture or in a Permitted Business; provided, however, that, with respect to an Asset Sale involving Collateral (a “Proceeds Application PeriodCollateral Asset Sale”), the Company and the Guarantors must execute and deliver to the Trustee such collateral documents or other instruments as are reasonably necessary to cause such replacement properties and assets to become subject to a Second Priority Lien to the extent required by the Security Documents in favor of the Trustee on behalf of the Holders of Notes, and otherwise shall comply with the provisions in this Indenture including Section 4.15 hereof, and the Security Documents governing After-Acquired Property. In the case of clause (2) above, the Company or such Restricted SubsidiarySubsidiary shall be deemed to have complied with its obligations under the preceding paragraphs of this Section 4.11 if it enters into a binding commitment to acquire such properties, at their optionassets or Capital Stock prior to 365 days after the receipt of the applicable Net Cash Proceeds; provided that such binding commitment will be subject only to customary conditions and such acquisition is completed as to any Collateral Asset Sale (and the obligations specified in the proviso to clause (b)(2) are satisfied) within 180 days following the expiration of the aforementioned 365 day period. If the acquisition contemplated by such binding commitment is not consummated on or before such 180th day, may apply an and the Company has not applied the applicable Net Cash Proceeds for another purpose permitted by the applicable preceding paragraph of this Section 4.11 on or before such 180th day, such commitment shall be deemed to not have been a permitted application of Net Cash Proceeds. The amount equal to the of such Net Cash Proceeds from any Collateral Asset Sale that are not used or invested in accordance with the preceding clauses (1) and (2) within 365 days of the Asset Sale constitutes “Collateral Excess Proceeds.” The amount of such Net Cash Proceeds from any Asset Sale,Sale not involving Collateral that are not used or invested in accordance with the preceding clauses (1) and (2) within 365 days of the Asset Sale constitutes “Excess Proceeds.”
(1) to reduceWhen the aggregate amount of Collateral Excess Proceeds exceeds $5.0 million or more, prepay, repay or purchase:
(A) to the extent such Net Proceeds are from an Asset Sale of Collateral, Obligations with Pari Passu Lien Priority (including the Senior Credit Facilities or any Refinancing Indebtedness in respect thereof but other than Indebtedness owed to the Company or any Restricted Subsidiary), and, in the case of revolving obligations, to correspondingly reduce commitments with respect thereto, provided that, to the extent either Issuer or any Restricted Subsidiary will so repay any such Indebtedness (other than the Notes), the Issuers shall reduce Obligations under the Notes on a pro rata basis by, at their option, (i) redeeming Notes as provided under Section 3.07 hereof (ii) purchasing Notes through open-market purchases or (iii) by making make an offer (in accordance with the procedures set forth herein for an a “Collateral Asset Sale Offer”) to all Holders of Notes to purchase their in cash the maximum principal amount of Notes at a purchase that may be purchased out of the Collateral Excess Proceeds. The offer price (the “Collateral Asset Sale Offer Price”) in any Collateral Asset Sale Offer will be equal to 100.0100% of the principal amount thereof, plus the amount of accrued but and unpaid interest, if any, on to the date of purchase (the “Collateral Asset Sale Offer Date”), and will be payable in cash. If any Collateral Excess Proceeds remain after consummation of a Collateral Asset Sale Offer, the Company may use such Collateral Excess Proceeds for any purposes not otherwise prohibited by this Indenture. If the aggregate principal amount of Notes tendered into such Collateral Asset Sale Offer exceeds the amount of Collateral Excess Proceeds, the Notes to be repurchased to the date of repurchase;
(B) to the extent such Net Proceeds resulted from an Asset Sale not consisting of Collateral, Obligations in respect of other Secured Indebtedness (which may include the Notes), and, in the case of revolving commitments, to correspondingly reduce commitments with respect thereto;
(C) Obligations in respect of the Notes or any other Indebtedness (other than Subordinated Indebtedness) of the Company or any Restricted Subsidiary, other than Indebtedness owed to the Company or any Restricted Subsidiary (and, in the case of revolving commitments, to correspondingly reduce commitments with respect thereto), provided that, to the extent either Issuer or any Restricted Subsidiary will so repay any such Indebtedness (other than the Notes), the Issuers will reduce Obligations under the Notes purchased shall be purchased on a pro rata basis by, at their option, (i) redeeming Notes as provided under Section 3.07 hereof or (ii) by making an offer (in accordance with the procedures set forth herein for an basis. Upon completion of each Collateral Asset Sale Offer) to all Holders to purchase their Notes at a purchase price equal to 100.0% of the principal amount thereof, plus the amount of accrued but unpaid interest, if any, on the principal amount of the Notes to Collateral Excess Proceeds shall be repurchased to the date of repurchase; or |US-DOCS\143900591.2||
(D) Obligations in respect of Indebtedness of a Non-Guarantor Subsidiary, other than Indebtedness owed to the Company or another Restricted Subsidiary; provided, in the case of clauses (A) or (C) above, (i) if an offer to purchase any Indebtedness of the Company or any Restricted Subsidiary is made, such amount will be deemed repaid to the extent of the amount of such offer, whether or not accepted by the holders of such Indebtedness, and no Net Proceeds in the amount of such offer will be deemed to exist following such offer, and (ii) if the holder of any Indebtedness of a Restricted Subsidiary of the Company declines the repayment of such Indebtedness owed to it from such Net Proceeds such amount will be deemed repaid to the extent of the declined Net Proceeds, or
(2) 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 that results in the Company or any Restricted Subsidiary, as the case may be, owning an amount of the Capital Stock of such business such that such business constitutes a Restricted Subsidiary or increases the Company’s direct or indirect percentage ownership of the Capital Stock of a Restricted Subsidiary;reset at zero.
Appears in 1 contract
Sources: Indenture (Uno of Victor, Inc.)
Asset Sales. (a) From and after the Completion Date, the Company shall not consummateThe Partnership will not, and shall will not permit any of its Restricted Subsidiaries to consummateto, consummate an Asset Sale, Sale unless:
(1) the Company Partnership or such 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 determined in good faith by of the Company at date of the time of contractually agreeing definitive agreement with respect to such Asset Sale) of the assets or Equity Interests issued or sold or otherwise disposed of; and
(2) except in the case of a Permitted Asset Swap, if the property or assets sold or otherwise disposed of have a fair market value in excess of the greater of $375.0 million and 50.0% of LTM EBITDA for the most recently ended Test Period at the time of such disposition, at least 75.075% of the aggregate consideration therefor received by the Company Partnership or such any of its Restricted Subsidiary, as Subsidiaries in the case may be, Asset Sale and all other Asset Sales since the date of this Indenture is in the form of cash or Cash Equivalents; provided that . For purposes of this provision, each of the amount offollowing will be deemed to be cash:
(A) any liabilities, contingent or otherwiseas shown on the Partnership’s most recent consolidated balance sheet, of the Company Partnership or such any Restricted Subsidiary, Subsidiary (other than contingent liabilities and liabilities that are by their terms subordinated to the Notes or any Note Guarantee) that are owed to the Company assumed, forgiven or a Restricted Subsidiary that (x) are assumed otherwise extinguished by the transferee of any such assets (pursuant to a novation, indemnity or a third party in connection with other agreement that releases the Partnership or such transfer) Restricted Subsidiary from or (y) are otherwise cancelled or terminated in connection with the transaction with such transferee (other than intercompany debt owed to the Company or its Restricted Subsidiaries) and, in each case, for which the Company and all of its Restricted Subsidiaries have been validly released,indemnifies against further liability;
(B) any securities, notes or other obligations or assets received by the Company Partnership or such any Restricted Subsidiary from such transferee that are within 180 days after the Asset Sale (subject to ordinary settlement periods) converted by the Company Partnership or such Restricted Subsidiary into cash or Cash Equivalents (Equivalents, to the extent of the cash or Cash Equivalents received) within 180 days following the closing of such Asset Sale;received in that conversion; and
(C) Indebtedness of any Restricted Subsidiary that ceases to be a Restricted Subsidiary as a result of such Asset Sale (other than intercompany debt owed to the Company Capital Stock or any Restricted Subsidiary), to the extent that the Company and each other Restricted Subsidiary are released from any guarantee of payment assets of the principal amount of such Indebtedness kind referred to in connection with such Asset Sale in accordance with the terms of this Indenture;Sections 4.10(b)(2) or 4.10(b)(4); and
(D) consideration consisting of Indebtedness of the Issuers or a Guarantor (other than intercompany debt owed to the Company or any Restricted Subsidiary and other than Subordinated Indebtedness) received after the Issue Date from Persons who are not the Company, Holdings or any Restricted Subsidiary;
(E) any Designated Non-cash Consideration received by the Company Partnership or such any of its Restricted Subsidiary Subsidiaries in such Asset Sale having an aggregate fair market value, Fair Market Value (as determined in good faith by the CompanyPartnership), taken together with all other Designated Non-cash Consideration received pursuant to this clause (E) that is at that time outstandingSection 4.10(a)(2)(D), not to exceed the greater of $225.0 million and 30.05.0% of LTM EBITDA for the most recently ended Test Period at the time of the receipt of |US-DOCS\143900591.2|| such Designated Non-cash Consideration Partnership’s Consolidated Net Tangible Assets (with the fair market value Fair Market Value of each such item of Designated Non-cash Consideration being measured pursuant to this clause (E) at the Company’s option, either at the time of contractually agreeing to such Asset Sale or at the time received and, in either case, and without giving effect to subsequent changes in value); and
(F) any Investment, Capital Stock, assets, property or capital or other expenditure of the kind referred to in clauses (2) or (3) of Section 4.10(b) hereof shall be deemed to be Cash Equivalents for purposes of this provision and for no other purpose.
(b) Within 540 365 days after the receipt of any Net Proceeds of any from an Asset Sale (or within 180 days after such 365-day period in the “Proceeds Application Period”event the Partnership or any Restricted Subsidiary enters into a binding commitment with respect to such application), the Company Partnership or such one or more of its Restricted Subsidiary, at their option, Subsidiaries may apply an amount equal to the amount of such Net Proceeds from such Asset Sale,Proceeds:
(1) to reduce, prepay, repay senior Indebtedness of the Partnership or purchase:of any Guarantor;
(A2) to acquire all or substantially all of the extent properties or 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 Partnership;
(3) to make a capital expenditure; or
(4) to acquire other assets that are not classified as current assets under GAAP and that are used or useful in a Permitted Business. Pending the final application of any Net Proceeds, the Partnership or any of its Restricted Subsidiaries may temporarily reduce revolving credit borrowings or otherwise invest the Net Proceeds are from an Asset Sale in any manner that is not prohibited by this Indenture. If the Net Proceeds exceed the aggregate amount within the applicable time period, such excess amount applied or invested as provided in this Section (b) will constitute “Excess Proceeds.” When the aggregate amount of CollateralExcess Proceeds exceeds $50.0 million, Obligations with Pari Passu Lien Priority (including the Senior Credit Facilities or any Refinancing Indebtedness in respect thereof but other than Indebtedness owed to the Company or any Restricted Subsidiary), and, in the case of revolving obligations, to correspondingly reduce commitments with respect thereto, provided that, to the extent either Issuer or any Restricted Subsidiary will so repay any such Indebtedness (other than the Notes)within five Business Days thereof, the Issuers shall reduce Obligations under the Notes on a pro rata basis by, at their option, (i) redeeming Notes as provided under Section 3.07 hereof (ii) purchasing Notes through open-market purchases or (iii) by making Partnership will make an offer (in accordance with the procedures set forth herein for an “Asset Sale Offer”) to all Holders of Notes then outstanding and all holders of other Indebtedness that is pari passu with the Notes containing provisions similar to purchase their 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 at a purchase 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 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 100.0100% of the principal amount thereofamount, plus the amount of accrued but and unpaid interest, 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 Partnership 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 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 the Partnership will select such other pari passu Indebtedness to be repurchased to the date of repurchase;
(B) to the extent such Net Proceeds resulted from an Asset Sale not consisting of Collateral, Obligations in respect of other Secured Indebtedness (which may include the Notes), and, in the case of revolving commitments, to correspondingly reduce commitments with respect thereto;
(C) Obligations in respect of the Notes or any other Indebtedness (other than Subordinated Indebtedness) of the Company or any Restricted Subsidiary, other than Indebtedness owed to the Company or any Restricted Subsidiary (and, in the case of revolving commitments, to correspondingly reduce commitments with respect thereto), provided that, to the extent either Issuer or any Restricted Subsidiary will so repay any such Indebtedness (other than the Notes), the Issuers will reduce Obligations under the Notes purchased on a pro rata basis by(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 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 Partnership so that only Notes in minimum 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 their option, zero.
(ic) redeeming Notes as provided under Section 3.07 hereof or (ii) by making an offer (in accordance The Partnership will comply with the procedures set forth herein for requirements of Rule 14e-1 under the Exchange Act and any other securities laws and regulations thereunder to the extent those laws and regulations are applicable in connection with each repurchase of Notes pursuant to an Asset Sale Offer) to all Holders to purchase their Notes at a purchase price equal to 100.0% of the principal amount thereof, plus the amount of accrued but unpaid interest, if any, on the principal amount of the Notes to be repurchased to the date of repurchase; or |US-DOCS\143900591.2||
(D) Obligations in respect of Indebtedness of a Non-Guarantor Subsidiary, other than Indebtedness owed to the Company or another Restricted Subsidiary; provided, in the case of clauses (A) or (C) above, (i) if an offer to purchase any Indebtedness of the Company or any Restricted Subsidiary is made, such amount will be deemed repaid to . To the extent that the provisions of any securities laws or regulations conflict with Sections 3.09 hereof or this Section 4.10, the amount of such offer, whether or Partnership will comply with the applicable securities laws and regulations and will not accepted by the holders of such Indebtedness, and no Net Proceeds in the amount of such offer will be deemed to exist following such offer, and (ii) if the holder of any Indebtedness of a Restricted Subsidiary of the Company declines the repayment have breached its obligations under Section 3.09 hereof or this Section Section 4.10 by virtue of such Indebtedness owed to it from such Net Proceeds such amount will be deemed repaid to the extent of the declined Net Proceeds, or
(2) 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 that results in the Company or any Restricted Subsidiary, as the case may be, owning an amount of the Capital Stock of such business such that such business constitutes a Restricted Subsidiary or increases the Company’s direct or indirect percentage ownership of the Capital Stock of a Restricted Subsidiary;compliance.
Appears in 1 contract
Sources: Indenture (Hi-Crush Partners LP)
Asset Sales. (a) From and after the Completion Date, the The Company shall not consummatewill not, and shall will not permit any of its Restricted Subsidiaries to consummatecause, an make or suffer to exist any Asset Sale, unless:
(1i) no Default exists or is continuing immediately prior to and after giving effect to such Asset Sale;
(ii) the Company (or such the Restricted Subsidiary, as the case may be, ) receives consideration at the time of such Asset Sale at least equal to the fair market value (as determined evidenced for purposes of this Section 4.10 by a resolution of the Board of Directors set forth in good faith by an Officer's Certificate delivered to the Company at the time of contractually agreeing to such Asset SaleTrustee) of the assets sold or otherwise disposed of; and
(2iii) except in the case of a Permitted Asset Swap, if the property or assets sold or otherwise disposed of have a fair market value in excess of the greater of $375.0 million and 50.0% of LTM EBITDA for the most recently ended Test Period at the time of such disposition, at least 75.080% of the consideration therefor received by the Company or such Restricted Subsidiary, as the case may be, Subsidiary is in the form of cash or (w) Cash Equivalents, (x) Replacement Assets, (y) publicly traded Equity Interests of a Person who is, directly or indirectly, engaged primarily in one or more Cable Businesses; provided provided, however, that the amount of:
(A) any liabilities, contingent or otherwise, of the Company or such Restricted Subsidiary shall Monetize such Equity Interests by sale to one or more Persons (other than to the Company or a Subsidiary thereof) at a price not less than the fair market value thereof within 180 days of the consummation of such Asset Sale, or (z) any combination of the foregoing clauses (w) through (y); provided, however, that the amount of (x) any liabilities (as shown on the Company's or such Restricted Subsidiary, 's most recent balance sheet or in the notes thereto) of the Company or any Restricted Subsidiary (other than liabilities that are by their terms subordinated to the Notes or Notes) that are owed to the Company or a Restricted Subsidiary that (x) are assumed by the transferee of any such assets (or a third party in connection with such transfer) or and (y) are otherwise cancelled or terminated in connection with the transaction with such transferee (other than intercompany debt owed to the Company or its Restricted Subsidiaries) and, in each case, for which the Company and all of its Restricted Subsidiaries have been validly released,
(B) any securities, notes or other obligations or assets received by the Company or any such Restricted Subsidiary from such transferee that are within five Business Days converted by the Company or such Restricted Subsidiary into cash or cash, shall be deemed to be Cash Equivalents (to the extent of the cash or Cash Equivalents received) within 180 days following the closing of such Asset Sale;
(C) Indebtedness of any Restricted Subsidiary that ceases to be a Restricted Subsidiary as a result of such Asset Sale (other than intercompany debt owed to the Company or any Restricted Subsidiary), to the extent that the Company and each other Restricted Subsidiary are released from any guarantee of payment of the principal amount of such Indebtedness in connection with such Asset Sale in accordance with the terms of this Indenture;
(D) consideration consisting of Indebtedness of the Issuers or a Guarantor (other than intercompany debt owed to the Company or any Restricted Subsidiary and other than Subordinated Indebtedness) received after the Issue Date from Persons who are not the Company, Holdings or any Restricted Subsidiary;
(E) any Designated Non-cash Consideration received by the Company or such Restricted Subsidiary in such Asset Sale having an aggregate fair market value, as determined by the Company, taken together with all other Designated Non-cash Consideration received pursuant to this clause (Econversion) that is at that time outstanding, not to exceed the greater of $225.0 million and 30.0% of LTM EBITDA for the most recently ended Test Period at the time of the receipt of |US-DOCS\143900591.2|| such Designated Non-cash Consideration (with the fair market value of each such item of Designated Non-cash Consideration being measured pursuant to this clause (E) at the Company’s option, either at the time of contractually agreeing to such Asset Sale or at the time received and, in either case, without giving effect to subsequent changes in value); and
(F) any Investment, Capital Stock, assets, property or capital or other expenditure of the kind referred to in clauses (2) or (3) of Section 4.10(b) hereof shall be deemed to be Cash Equivalents for purposes of this provision and for no other purposeclause (iii).
(b) Within 540 360 days after the receipt of any Net Proceeds of any Asset Sale (the “Proceeds Application Period”)Sale, the Company (or such Restricted Subsidiary, at their option, may apply an amount equal to the Net Proceeds from such Asset Sale,
(1) to reduce, prepay, repay or purchase:
(A) to the extent such Net Proceeds are from an Asset Sale of Collateral, Obligations with Pari Passu Lien Priority (including the Senior Credit Facilities or any Refinancing Indebtedness in respect thereof but other than Indebtedness owed to the Company or any Restricted Subsidiary), and, in the case of revolving obligations, to correspondingly reduce commitments with respect thereto, provided that, to the extent either Issuer or any Restricted Subsidiary will so repay any such Indebtedness (other than the Notes), the Issuers shall reduce Obligations under the Notes on a pro rata basis by, at their option, (i) redeeming Notes as provided under Section 3.07 hereof (ii) purchasing Notes through open-market purchases or (iii) by making an offer (in accordance with the procedures set forth herein for an Asset Sale Offer) to all Holders to purchase their Notes at a purchase price equal to 100.0% of the principal amount thereof, plus the amount of accrued but unpaid interest, if any, on the principal amount of the Notes to be repurchased to the date of repurchase;
(B) to the extent such Net Proceeds resulted from an Asset Sale not consisting of Collateral, Obligations in respect of other Secured Indebtedness (which may include the Notes), and, in the case of revolving commitments, to correspondingly reduce commitments with respect thereto;
(C) Obligations in respect of the Notes or any other Indebtedness (other than Subordinated Indebtedness) of the Company or any Restricted Subsidiary, other than Indebtedness owed to the Company or any Restricted Subsidiary (and, in the case of revolving commitments, to correspondingly reduce commitments with respect thereto), provided that, to the extent either Issuer or any Restricted Subsidiary will so repay any such Indebtedness (other than the Notes), the Issuers will reduce Obligations under the Notes on a pro rata basis by, at their option, (i) redeeming Notes as provided under Section 3.07 hereof or (ii) by making an offer (in accordance with the procedures set forth herein for an Asset Sale Offer) to all Holders to purchase their Notes at a purchase price equal to 100.0% of the principal amount thereof, plus the amount of accrued but unpaid interest, if any, on the principal amount of the Notes to be repurchased to the date of repurchase; or |US-DOCS\143900591.2||
(D) Obligations in respect of Indebtedness of a Non-Guarantor Subsidiary, other than Indebtedness owed to the Company or another Restricted Subsidiary; provided, in the case of clauses (A) or (C) above, (i) if an offer to purchase any Indebtedness of the Company or any Restricted Subsidiary is made, such amount will be deemed repaid to the extent of the amount of such offer, whether or not accepted by the holders of such Indebtedness, and no Net Proceeds in the amount of such offer will be deemed to exist following such offer, and (ii) if the holder of any Indebtedness of a Restricted Subsidiary of the Company declines the repayment of such Indebtedness owed to it from such Net Proceeds such amount will be deemed repaid to the extent of the declined Net Proceeds, or
(2) 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 that results in the Company or any Restricted Subsidiary, as the case may be) shall cause the Net Proceeds from such Asset Sale:
(i) to be used to permanently reduce Indebtedness of a Restricted Subsidiary; or
(ii) to be invested or reinvested in Replacement Assets. Pending final application of any such Net Proceeds, owning the Company may temporarily reduce revolving credit borrowings or otherwise invest such Net Proceeds in any manner that is not prohibited by this Indenture or the indentures for the Other Qualified Notes. Any Net Proceeds from any Asset Sale that are not used or reinvested as provided in the preceding sentence constitute "EXCESS PROCEEDS." When the aggregate amount of Excess Proceeds exceeds $15 million, the Company shall make an offer (an "ASSET SALE OFFER") to all holders of Notes and Other Qualified Notes to purchase the maximum principal amount of Notes and Other Qualified Notes (determined on a pro rata basis according to the accreted value or principal amount, as the case may be, of the Notes and the Other Qualified Notes and in accordance with Section 3.09(g)(i)) that may be purchased out of the Excess Proceeds (x) with respect to the Other Qualified Notes, based on the terms set forth in the indenture related to each issue of the Other Qualified Notes and (y) with respect to the Notes, at an offer price in cash in an amount equal to 100% of the outstanding 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 Section 3.09 hereof. To the extent that the aggregate principal amount or accreted value, as the case may be, of Notes and Other Qualified Notes tendered pursuant to an Asset Sale Offer is less than the Excess Proceeds, the Company may use such deficiency for general corporate purposes. If the aggregate principal amount or accreted value, as the case may be, of Notes and Other Qualified Notes surrendered by holders thereof exceeds the amount of Excess Proceeds, then such remaining Excess Proceeds shall be allocated pro rata according to accreted value or principal amount, as the case may be, to the Notes and each issue of the Other Qualified Notes and in accordance with Section 3.09(g)(ii), and the Trustee shall select the Notes to be purchased from the amount allocated to the Notes on the basis set forth in Section 3.09(e) hereof. Upon completion of such offers to purchase each of the Notes and the Other Qualified Notes, the amount of Excess Proceeds will be reset at zero.
(c) Notwithstanding the provisions of Sections 4.10(a) and (b): the Company and its Subsidiaries may:
(i) sell, lease, transfer, convey or otherwise dispose of assets or property acquired after October 14, 1993, by the Company or any Subsidiary in a sale-and-leaseback transaction so long as the proceeds of such sale are applied within five Business Days to permanently reduce Indebtedness of a Restricted Subsidiary or if there is no such Indebtedness or such proceeds exceed the amount of such Indebtedness then such proceeds or excess proceeds are reinvested in a Replacement Assets within 360 days after such sale, lease, transfer, conveyance or disposition;
(ii) (x) swap or exchange assets or property with a Cable Controlled Subsidiary or (y) issue, sell, lease, transfer, convey or otherwise dispose of equity securities of any of the Company's Subsidiaries to a Cable Controlled Subsidiary, in each of cases (x) and (y) so long as (A) the ratio of Indebtedness to Annualized Pro Forma EBITDA of the Company after such transaction is equal to or less than the ratio of Indebtedness to Annualized Pro Forma EBITDA of the Company immediately preceding such transaction; provided, however, that if the ratio of Indebtedness to Annualized Pro Forma EBITDA of the Company immediately preceding such transaction is 6:1 or less, then the ratio of Indebtedness to Annualized Pro Forma EBITDA of the Company may be 0.5 greater than such ratio immediately preceding such transaction and (B) either (I) the assets so contributed consist solely of a license to operate a Cable Business and the Net Households covered by all of the licenses to operate cable and telephone systems held by the Company and its Restricted Subsidiaries immediately after and giving effect to such transaction equals or exceeds the number of Net Households covered by all of the licenses to operate cable and telephone systems held by the Company and its Restricted Subsidiaries immediately prior to such transaction or (II) the assets so contributed consist solely of Cable Assets and the value of the Capital Stock received, immediately after and giving effect to such transaction, as determined by an investment banking firm of such business such that such business constitutes a Restricted Subsidiary or increases the Company’s direct or indirect percentage ownership recognized standing with knowledge of the Cable Business, equals or exceeds the value of Cable Assets exchanged for such Capital Stock; or
(iii) issue, sell, lease, transfer, convey or otherwise dispose of Equity Interests (other than Disqualified Stock) of the Company (or any Capital Stock of a Sale Proceeds therefrom) to any Person (including Non-Restricted Subsidiary;Subsidiaries).
Appears in 1 contract
Sources: Indenture (NTL Communications Corp)
Asset Sales. (a) From and after the Completion Date, the The Company shall not consummatewill not, and shall will not permit any of its Restricted Subsidiaries to consummateto, consummate an Asset Sale, Sale unless:
(1) the Company (or such 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 determined in good faith by of the Company at date of the time of contractually agreeing definitive agreement with respect to such Asset Sale) of the Equity Interests issued or the assets sold or otherwise disposed of; and
(2) except in the case of a Permitted Asset Swap, if the property or assets sold or otherwise disposed of have a fair market value in excess of the greater of $375.0 million and 50.0% of LTM EBITDA for the most recently ended Test Period at the time of such disposition, at least 75.075% of the aggregate consideration therefor received in the Asset Sale and all other Asset Sales since the Issue Date, on a cumulative basis, by the Company or such a Restricted Subsidiary, as the case may be, Subsidiary is in the form of cash or Cash Equivalents; provided that . For purposes of this clause (2) only, each of the amount offollowing will be deemed to be cash:
(Aa) any liabilities, contingent or otherwiseas shown on the Company’s most recent consolidated balance sheet, of the Company or such any Restricted Subsidiary, Subsidiary (other than contingent liabilities and liabilities that are by their terms subordinated to the Notes or any Note Guarantee) that are owed to the Company assumed or a Restricted Subsidiary that (x) are assumed otherwise forgiven or released by the transferee of any such assets (or a third party in connection with such transfer) or (y) are otherwise cancelled or terminated in connection with the transaction with such transferee (other than intercompany debt owed to the Company or its Restricted Subsidiaries) and, in each case, for which the Company and all of its Restricted Subsidiaries have been validly released,an Affiliate thereof);
(Bb) any securities, notes or other obligations or assets received by the Company or such any Restricted Subsidiary from such transferee that are are, within 180 days after the Asset Sale, converted by the Company or such Restricted Subsidiary into cash or Cash Equivalents (cash, to the extent of the cash or Cash Equivalents received) within 180 days following the closing of such Asset Salereceived in that conversion;
(Cc) Indebtedness of any Restricted Subsidiary that ceases to be a Restricted Subsidiary as a result of such Asset Sale (other than intercompany debt owed to the Company Capital Stock or any Restricted Subsidiary), to the extent that the Company and each other Restricted Subsidiary are released from any guarantee of payment assets of the principal amount kind referred to in clause (2) or (4) of such Indebtedness in connection with such Asset Sale in accordance with the terms of this IndentureSection 4.10(b);
(D) consideration consisting of Indebtedness of the Issuers or a Guarantor (other than intercompany debt owed to the Company or any Restricted Subsidiary and other than Subordinated Indebtedness) received after the Issue Date from Persons who are not the Company, Holdings or any Restricted Subsidiary;
(Ed) any Designated Non-cash Consideration received by the Company or such Restricted Subsidiary in such Asset Sale having an aggregate fair market value, as determined by the CompanyFair Market Value, taken together with all other Designated Non-cash Consideration received pursuant to this clause (Ed) that is at that time outstanding, not to exceed the greater of (i) $225.0 200.0 million and 30.0(ii) 5.0% of LTM EBITDA for the most recently ended Test Period Adjusted Consolidated Net Tangible Assets at the time of the receipt of |US-DOCS\143900591.2|| such Designated Non-cash Consideration (Consideration, with the fair market value Fair Market Value of each such item of Designated Non-cash Consideration being measured pursuant to this clause (E) at the Company’s option, either at the time of contractually agreeing to such Asset Sale or at the time received and, in either case, and without giving effect to subsequent changes in value); and
(Fe) with respect to any InvestmentAsset Sale of Oil and Gas Properties disposed of by the Company or any Restricted Subsidiary in which the Company or any Restricted Subsidiary retains an interest, Capital Stockthe costs and expenses related to the exploration, assetsdevelopment, property completion or capital or other expenditure production of the kind referred to in clauses (2) or (3) of Section 4.10(b) hereof shall be deemed such Oil and Gas Properties and activities related thereto agreed to be Cash Equivalents for purposes of this provision and for no other purposeassumed by the transferee (or an Affiliate thereof).
(b) Within 540 365 days after the receipt of any Net Proceeds of any from an Asset Sale (the “Proceeds Application Period”)Sale, the Company (or such any Restricted Subsidiary, at their option, ) may apply an amount equal to the such Net Proceeds from such Asset Sale,at its option to any combination of the following:
(1) to reducerepay, prepaypurchase, repay repurchase, redeem, defease or purchase:
otherwise acquire, retire or terminate (Aa) Indebtedness of the Company or a Guarantor that is not subordinated in right of payment to the extent such Net Proceeds are from an Asset Sale Notes or the Note Guarantees, or (b) any Indebtedness of Collateral, Obligations with Pari Passu Lien Priority a Restricted Subsidiary that is not a Guarantor (including the Senior Credit Facilities or any Refinancing Indebtedness in respect thereof but each case other than Indebtedness owed to the Company or any Restricted Subsidiaryan Affiliate), and, in the case of revolving obligations, to correspondingly reduce commitments with respect thereto, provided that, to the extent either Issuer or any Restricted Subsidiary will so repay any such Indebtedness (other than the Notes), the Issuers shall reduce Obligations under the Notes on a pro rata basis by, at their option, (i) redeeming Notes as provided under Section 3.07 hereof (ii) purchasing Notes through open-market purchases or (iii) by making an offer (in accordance with the procedures set forth herein for an Asset Sale Offer) to all Holders to purchase their Notes at a purchase price equal to 100.0% of the principal amount thereof, plus the amount of accrued but unpaid interest, if any, on the principal amount of the Notes to be repurchased to the date of repurchase;
(B2) to the extent such Net Proceeds resulted from an Asset Sale not consisting of Collateral, Obligations in respect of other Secured Indebtedness (which may include the Notes), and, in the case of revolving commitments, to correspondingly reduce commitments with respect thereto;
(C) Obligations in respect acquire all or substantially all of the Notes assets of, or any Capital Stock of, one or more other Indebtedness (other than Subordinated Indebtedness) of the Company or any Restricted SubsidiaryPersons primarily engaged in a Permitted Business, other than Indebtedness owed if, after giving effect to the Company or any Restricted Subsidiary (and, in the case of revolving commitments, to correspondingly reduce commitments with respect thereto), provided that, to the extent either Issuer or any Restricted Subsidiary will so repay any such Indebtedness (other than the Notes), the Issuers will reduce Obligations under the Notes on a pro rata basis by, at their option, (i) redeeming Notes as provided under Section 3.07 hereof or (ii) by making an offer (in accordance with the procedures set forth herein for an Asset Sale Offer) to all Holders to purchase their Notes at a purchase price equal to 100.0% acquisition of the principal amount thereof, plus the amount of accrued but unpaid interest, if any, on the principal amount of the Notes to be repurchased to the date of repurchase; or |US-DOCS\143900591.2||
(D) Obligations in respect of Indebtedness of a Non-Guarantor Subsidiary, other than Indebtedness owed to the Company or another Restricted Subsidiary; provided, in the case of clauses (A) or (C) above, (i) if an offer to purchase any Indebtedness of the Company or any Restricted Subsidiary is madeCapital Stock, such amount will be deemed repaid to the extent of the amount of such offer, whether or not accepted by the holders of such Indebtedness, and no Net Proceeds in the amount of such offer will be deemed to exist following such offer, and (ii) if the holder of any Indebtedness of Person is a Restricted Subsidiary of the Company declines the repayment of such Indebtedness owed Company;
(3) to it from such Net Proceeds such amount will be deemed repaid to the extent make capital expenditures in respect of the declined Net Proceeds, Company’s or any Restricted Subsidiary’s Permitted Business;
(4) to acquire assets (other than Capital Stock) that are not classified as current assets under GAAP and that are used or useful in a Permitted Business; or
(25) to make an Investment Investments in a Joint Venture not prohibited by Section 4.07, the proceeds of which will be applied by such Person to any combination of (Ai) repaying, purchasing, repurchasing, redeeming, defeasing or otherwise acquiring, retiring or terminating Indebtedness of such Person or a Subsidiary of such Person and other Obligations related thereto, (ii) acquiring all or substantially all of the assets of, or any Capital Stock of, one or more businessesother Persons primarily engaged in a Permitted Business, provided (iii) making capital expenditures in respect of such Person’s Permitted Business, or (iv) acquiring assets (other than Capital Stock) that such Investment are not classified as current assets under GAAP and that are used or useful in any business a Permitted Business.
(c) The requirement of clauses (2) through (4) and (5)(ii)-(iv) of Section 4.10(b) shall be deemed to be satisfied if a bona fide binding contract committing to make the investment, acquisition or expenditure referred to therein is in the form of the acquisition of Capital Stock that results in entered into by the Company or any Restricted Subsidiary, as the case may bebe (or in the case of clause (5)(ii)-(iv), owning such Joint Venture), with a Person other than an Affiliate of the Company within the time period specified in the preceding paragraph and such Net Proceeds are subsequently applied in accordance with such contract within 180 days following the date such binding contract is entered into.
(d) Pending the final application of any Net Proceeds, 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) Any Net Proceeds from Asset Sales that are not applied as provided in Section 4.10(b) will constitute “Excess Proceeds.” When the aggregate amount of Excess Proceeds exceeds $50.0 million, within 30 days thereafter, the Company will make an offer (an “Asset Sale Offer”) to all Holders of Notes (with a copy to the Trustee), and 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 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, 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, 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 use those Excess Proceeds for any purpose not otherwise prohibited hereby. If the aggregate principal amount of Notes and other pari passu Indebtedness tendered in (or required to be prepaid or redeemed in connection with) such Asset Sale Offer exceeds the amount of Excess Proceeds, the Company will select the Notes and such other pari passu Indebtedness to be purchased, prepaid or redeemed on a pro rata basis (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 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 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 amount of Excess Proceeds will be reset at zero. The Company may satisfy the foregoing obligation with respect to any Excess Proceeds by making an Asset Sale Offer prior to the expiration of the relevant 365-day period or with respect to Excess Proceeds of $50.0 million or less.
(f) 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 those laws and regulations are applicable in connection with each repurchase of Notes pursuant to an Asset Sale Offer. To the extent that the provisions of any securities laws or regulations conflict with this Section 4.10, the Company will comply with the applicable securities laws and regulations and will be deemed not to have breached its obligations under 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 Capital Stock 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 such business such 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 such business constitutes a Restricted Subsidiary or increases cash is fungible and that the Company’s direct or indirect percentage ownership obligations under this Section 4.10 may be satisfied by the application of the Capital Stock of a Restricted Subsidiary;funds from other sources.
Appears in 1 contract
Sources: Indenture (Chord Energy Corp)
Asset Sales. (a) From and after the Completion Date, the The Company shall not consummatenot, and shall not permit any of its Restricted Subsidiaries to consummateto, consummate an Asset Sale, Sale unless:
(1i) the Company (or such the Restricted Subsidiary, as the case may be, receives ) receive consideration at the time of such the Asset Sale at least equal to the fair market value (as determined in good faith by the Company at the time of contractually agreeing to such Asset Sale) Fair Market Value of the assets sold sold, leased, transferred, conveyed or otherwise disposed of;
(ii) the fair market value, if greater than $50.0 million, is determined by the Company’s Board of Directors and evidenced by a resolution of the Board of Directors set forth in an Officer’s Certificate delivered to the Trustee; and
(2iii) except in the case of a Permitted Asset Swap, if the property or assets sold or otherwise disposed of have a fair market value in excess of the greater of $375.0 million and 50.0% of LTM EBITDA for the most recently ended Test Period at the time of such disposition, at least 75.075% of the consideration therefor received in the Asset Sale by the Company or such Restricted Subsidiary, as the case may be, Subsidiary is in the form of cash cash, Cash Equivalents or Cash Equivalents; provided that Replacement Assets.
(b) For purposes of this Section 4.12, each of the amount offollowing will be deemed to be cash:
(Ai) any liabilities, contingent or otherwise, liabilities of the Company or any of its Restricted Subsidiaries, as shown on the Company’s or such Restricted Subsidiary, ’s most recent balance 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 owed to the Company or a Restricted Subsidiary that (x) are assumed by the transferee of any such assets (or pursuant to a third party in connection with such transfer) or (y) are otherwise cancelled or terminated in connection with the transaction with such transferee (other than intercompany debt owed to customary assignment and assumption agreement that releases the Company or its such Restricted Subsidiaries) and, in each case, for which the Company and all of its Restricted Subsidiaries have been validly released,Subsidiary from further liability with respect thereto;
(Bii) any securities, notes or other obligations or assets received by the Company or any such Restricted Subsidiary from such transferee that are converted by the Company or such Restricted Subsidiary into cash or Cash Equivalents within 180 days of receipt thereof (subject to ordinary settlement periods), to the extent of the cash or Cash Equivalents received) within 180 days following the closing of such Asset Sale;received in that conversion; and
(C) Indebtedness of any Restricted Subsidiary that ceases to be a Restricted Subsidiary as a result of such Asset Sale (other than intercompany debt owed to the Company or any Restricted Subsidiary), to the extent that the Company and each other Restricted Subsidiary are released from any guarantee of payment of the principal amount of such Indebtedness in connection with such Asset Sale in accordance with the terms of this Indenture;
(D) consideration consisting of Indebtedness of the Issuers or a Guarantor (other than intercompany debt owed to the Company or any Restricted Subsidiary and other than Subordinated Indebtedness) received after the Issue Date from Persons who are not the Company, Holdings or any Restricted Subsidiary;
(Eiii) any Designated Non-cash Consideration received by the Company or any such Restricted Subsidiary in such Asset Sale having an aggregate fair market value, as determined by the CompanyFair Market Value, taken together with all other Designated Non-cash Consideration received pursuant to this clause (Eiii) that is at that the time outstanding, not to exceed the greater of $225.0 10.0 million and 30.01.5% of LTM EBITDA for the most recently ended Test Period Consolidated Total Assets of the Company at the time of the receipt of |US-DOCS\143900591.2|| such Designated Non-cash Consideration (Consideration, with the fair market value Fair Market Value of each such item of Designated Non-cash Consideration being measured pursuant to this clause (E) at the Company’s option, either at the time of contractually agreeing to such Asset Sale or at the time received and, in either case, and without giving effect to subsequent changes in value); and
(F) any Investment, Capital Stock, assets, property or capital or other expenditure of the kind referred to in clauses (2) or (3) of Section 4.10(b) hereof shall be deemed to be Cash Equivalents for purposes of this provision and for no other purpose.
(bc) Within 540 365 days after the receipt of any Net Proceeds of any from an Asset Sale (the “Proceeds Application Period”)Sale, the Company (or such the applicable Restricted Subsidiary, at their option, as the case may be) may apply an amount equal to the those Net Proceeds from such Asset Sale,
(1) to reduce, prepay, repay or purchaseat its option:
(Ai) to permanently reduce obligations under the extent such Net Proceeds are from an Asset Sale of Collateral, Obligations with Pari Passu Lien Priority (including the Senior Credit Facilities or any Refinancing Indebtedness in respect thereof but other than Indebtedness owed to the Company or any Restricted Subsidiary), Agreement and, in the case of revolving obligationsobligations thereunder, to correspondingly reduce commitments with respect thereto, thereto (or other Indebtedness of the Company or Subsidiary Guarantees secured by a Lien) or Pari Passu Indebtedness; provided that, to that if the extent either Issuer Company or any Restricted a Subsidiary will Guarantor shall so repay any reduce obligations under such Indebtedness (other than the Notes)Pari Passu Indebtedness, the Issuers shall Company (or the applicable Subsidiary Guarantor, as the case may be) will equally and ratably reduce Obligations under the Notes on a pro rata basis by, at their option, (i) redeeming Notes as provided under Section 3.07 hereof (ii) purchasing Notes through open-market purchases or (iii) by making an offer (in accordance with the procedures set forth herein for an Asset Sale OfferSection 3.09 hereof) to all Holders of Notes to purchase their Notes at a purchase price equal to 100.0100% of the principal amount thereof, plus the amount of accrued but and unpaid interestinterest and Additional Interest, if any, on the pro rata principal amount of the Notes to be repurchased to the date of repurchase;
(B) to the extent such Net Proceeds resulted from an Asset Sale not consisting of Collateral, Obligations in respect of other Secured Indebtedness (which may include the Notes), and, in the each case of revolving commitments, to correspondingly reduce commitments with respect thereto;
(C) Obligations in respect of the Notes or any other Indebtedness (other than Subordinated Indebtedness) of the Company or any Restricted Subsidiary, other than Indebtedness owed to either the Company or any Restricted Subsidiary an Affiliate of the Company (and, provided that in the case of any reduction of any revolving commitmentsobligations, to correspondingly reduce the Company or such Subsidiary Guarantor shall effect a corresponding reduction of commitments with respect thereto);
(ii) to acquire all or substantially all of the assets of, provided thator a majority of the Voting Stock of, another Permitted Business;
(iii) to acquire assets (other than inventory) that are used or useful in a Permitted Business;
(iv) to make capital expenditures in or that are used or useful in a Permitted Business or to make expenditures for maintenance, repair or improvement of existing properties and assets in a manner not prohibited by this Indenture, in each case, to the extent either Issuer such expenditures are made by or any Restricted Subsidiary will so repay any such Indebtedness (other than the Notes), the Issuers will reduce Obligations under the Notes on a pro rata basis by, at their option, (i) redeeming Notes as provided under Section 3.07 hereof or (ii) by making an offer (in accordance with the procedures set forth herein for an Asset Sale Offer) to all Holders to purchase their Notes at a purchase price equal to 100.0% of the principal amount thereof, plus the amount of accrued but unpaid interest, if any, on the principal amount of the Notes to be repurchased to the date of repurchase; or |US-DOCS\143900591.2||
(D) Obligations in respect of Indebtedness of a Non-Guarantor Subsidiary, other than Indebtedness owed to the Company or another Restricted Subsidiary; provided, in the case of clauses (A) or (C) above, (i) if an offer to purchase any Indebtedness of the Company or any Restricted Subsidiary is made, such amount will be deemed repaid to the extent of the amount of such offer, whether or not accepted by the holders of such Indebtedness, and no Net Proceeds in the amount of such offer will be deemed to exist following such offer, and (ii) if the holder of any Indebtedness of a Restricted Subsidiary of the Company declines the repayment of such Indebtedness owed to it from such Net Proceeds such amount will be deemed repaid to the extent of the declined Net Proceeds, or
(2) 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 that results used in the Company or a Subsidiary Guarantor; or
(v) any combination of the foregoing clauses (i) through (iv). In the case of each of clauses (ii) and (iii) above, the entry into a definitive agreement to acquire such assets within 365 days after the receipt of any Net Proceeds from an Asset Sale shall be treated as a permitted application of the Net Proceeds from the date of such agreement so long as the Company or such Restricted Subsidiary, as the case may be, owning an enters into such agreement with the good faith expectation that such Net Proceeds will be applied to satisfy such commitment within 455 days of the date of the receipt of such Net Proceeds and such Net Proceeds are actually so applied within such period. 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 as provided in Section 4.12(c) will constitute “Excess Proceeds.” When the aggregate amount of Excess Proceeds exceeds $20.0 million, the Capital Stock Company shall, within 30 days, make one or more offers to the Holders of the Notes and all holders of other Pari Passu Indebtedness containing provisions similar to those set forth herein with respect to offers to purchase or redeem with the proceeds of sales of assets to purchase the maximum principal amount of Notes and such business other Pari Passu Indebtedness that may be purchased out of the Excess Proceeds (each, an “Asset Sale Offer”). The offer price in any Asset Sale Offer will be equal to 100% of the principal amount thereof plus accrued and unpaid interest and Additional Interest, if any, to the date of purchase, and shall be payable in cash. If any Excess Proceeds remain after consummation of an Asset Sale Offer, the Company may use those Excess Proceeds for any purpose not otherwise prohibited by this Indenture and they will no longer constitute Excess Proceeds. 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 as described in Article 3 hereof. Upon completion of each Asset Sale Offer, the amount of Excess Proceeds will be reset at zero.
(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 those laws and regulations are applicable in connection with each repurchase of Notes pursuant to an Asset Sale Offer. To the extent that such business constitutes a Restricted Subsidiary the provisions of any securities laws or increases regulations conflict with the Asset Sale provisions of this Indenture, the Company shall comply with the applicable securities laws and regulations and will not be deemed to have breached the Company’s direct or indirect percentage ownership obligations under this Section 4.12 by virtue of the Capital Stock of a Restricted Subsidiary;such conflict.
Appears in 1 contract
Asset Sales. (a) From and after the Completion Date, the The Company shall not consummatenot, and shall not permit any of its Restricted Subsidiaries to consummateto, consummate an Asset Sale, Sale unless:
(1) the Company (or such 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 (as determined in good faith by the Company at the time of contractually agreeing to such Asset Sale) Fair Market Value of the assets or Equity Interests issued or sold or otherwise disposed of; and
(2) except in the case of a Permitted Asset Swap, if the property or assets sold or otherwise disposed of have a fair market value in excess of the greater of $375.0 million and 50.0% of LTM EBITDA for the most recently ended Test Period at the time of such disposition, at least 75.075% of the consideration therefor received by the Company or such Restricted Subsidiary, as the case may be, Subsidiary is in the form of cash or Cash Equivalents; provided that cash. For purposes of this provision, each of the amount offollowing shall be deemed to be cash:
(A) Cash Equivalents;
(B) any liabilities, contingent or otherwiseas shown on the Company’s most recent consolidated balance sheet, of the Company or such any Restricted Subsidiary, Subsidiary (other than contingent liabilities and liabilities that are by their terms subordinated to the Notes or any Subsidiary Guarantee) that are owed to the Company or a Restricted Subsidiary that (x) are assumed by the transferee of any such assets (or pursuant to a third party in connection with such transfer) or (y) are otherwise cancelled or terminated in connection with the transaction with such transferee (other than intercompany debt owed to customary novation agreement that releases the Company or its such Restricted Subsidiaries) and, in each case, for which the Company and all of its Restricted Subsidiaries have been validly released,Subsidiary from further liability;
(BC) any securities, notes or other obligations or assets received by the Company or any such Restricted Subsidiary from such transferee that are converted by the Company or such Restricted Subsidiary into cash or Cash Equivalents (within 180 days of receipt, to the extent of the cash or Cash Equivalents received) within 180 days following the closing of such Asset Sale;
(C) Indebtedness of any Restricted Subsidiary received in that ceases to be a Restricted Subsidiary as a result of such Asset Sale (other than intercompany debt owed to the Company or any Restricted Subsidiary), to the extent that the Company and each other Restricted Subsidiary are released from any guarantee of payment of the principal amount of such Indebtedness in connection with such Asset Sale in accordance with the terms of this Indentureconversion;
(D) consideration consisting of Indebtedness of the Issuers or a Guarantor (other than intercompany debt owed to the Company or any Restricted Subsidiary and other than Subordinated Indebtedness) received after the Issue Date from Persons who are not the Company, Holdings or any Restricted Subsidiary;
(E) any Designated Non-cash Noncash Consideration received by the Company or such Restricted Subsidiary in such Asset Sale having an aggregate fair market valueFair Market Value of which, as determined by the Company, when taken together with all other Designated Non-cash Noncash Consideration received pursuant to this clause (Ed) (and not subsequently converted into Cash Equivalents that is at that time outstandingare treated as Net Proceeds of an Asset Sale) does not exceed $15.0 million since the date of this Indenture, not to exceed the greater of $225.0 million and 30.0% of LTM EBITDA for the most recently ended Test Period at the time of the receipt of |US-DOCS\143900591.2|| such Designated Non-cash Consideration (with the fair market value Fair Market Value of each such item of Designated Non-cash Noncash Consideration being measured pursuant to this clause (E) at the Company’s option, either at the time of contractually agreeing to such Asset Sale or at the time received and, in either case, and without giving effect to subsequent changes in value); and
(FE) any Investment, Capital Stock, assets, property stock or capital or other expenditure assets of the kind referred to in clauses (2) or (34) of Section 4.10(b) hereof shall be deemed to be Cash Equivalents for purposes of this provision and for no other purpose).
(b) Within 540 365 days after the receipt of any Net Proceeds of any from an Asset Sale (the “Proceeds Application Period”)Sale, the Company (or such the applicable Restricted Subsidiary, at their option, as the case may be) may apply an amount equal to the such Net Proceeds from such Asset Sale,at its option:
(1) to reducerepay Senior Debt and, prepay, repay or purchase:
(A) to the extent such Net Proceeds are from an Asset Sale of Collateral, Obligations with Pari Passu Lien Priority (including if the Senior Credit Facilities or any Refinancing Indebtedness in respect thereof but other than Indebtedness owed to the Company or any Restricted Subsidiary), and, in the case of Debt repaid is revolving obligations, to correspondingly reduce commitments with respect thereto, provided that, to the extent either Issuer or any Restricted Subsidiary will so repay any such Indebtedness (other than the Notes), the Issuers shall reduce Obligations under the Notes on a pro rata basis by, at their option, (i) redeeming Notes as provided under Section 3.07 hereof (ii) purchasing Notes through open-market purchases or (iii) by making an offer (in accordance with the procedures set forth herein for an Asset Sale Offer) to all Holders to purchase their Notes at a purchase price equal to 100.0% of the principal amount thereof, plus the amount of accrued but unpaid interest, if any, on the principal amount of the Notes to be repurchased to the date of repurchase;
(B) to the extent such Net Proceeds resulted from an Asset Sale not consisting of Collateral, Obligations in respect of other Secured Indebtedness (which may include the Notes), and, in the case of revolving commitmentscredit Indebtedness, to correspondingly reduce commitments with respect thereto;
(C2) Obligations in respect to acquire all or substantially all of the Notes assets of, or any other Indebtedness (other than Subordinated Indebtedness) 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 Company or Company;
(3) to make a capital expenditure; or
(4) to acquire Additional Assets. Pending the final application of any Restricted Subsidiarysuch Net Proceeds, other than Indebtedness owed to the Company may temporarily reduce revolving credit borrowings or otherwise invest such Net Proceeds in any Restricted Subsidiary manner that is not prohibited by this Indenture.
(andc) Any Net Proceeds from Asset Sales that are not applied or invested as provided in Section 4.10(b) shall constitute “Excess Proceeds.” When the aggregate amount of Excess Proceeds exceeds $15.0 million, in the case of revolving commitments, to correspondingly reduce commitments with respect thereto), provided that, to the extent either Issuer or any Restricted Subsidiary will so repay any such Indebtedness (other than the Notes)within ten Business Days thereof, the Issuers will reduce Obligations under the Notes on a pro rata basis by, at their option, (i) redeeming Notes as provided under Section 3.07 hereof or (ii) by making an offer (in accordance with the procedures set forth herein for Company shall make an Asset Sale Offer) Offer to all Holders to purchase their Notes at a purchase and if the Company elects (or is required by the terms of such other pari passu Indebtedness), all holders of other Indebtedness that is pari passu with the Notes. The offer price in any Asset Sale Offer shall be equal to 100.0100% of the principal amount thereof, plus the amount of accrued but and unpaid interestinterest and Special Interest, if any, on the principal amount of the Notes to be repurchased to the date of repurchase; or |US-DOCS\143900591.2||purchase, and shall be payable in cash. If any Excess Proceeds remain after the 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 and such 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 shall be reset at zero.
(Dd) Obligations in respect The Company shall comply with the requirements of Indebtedness of a Non-Guarantor Subsidiary, Rule 14e-1 under the Exchange Act and any other than Indebtedness owed to the Company or another Restricted Subsidiary; provided, in the case of clauses (A) or (C) above, (i) if an offer to purchase any Indebtedness of the Company or any Restricted Subsidiary is made, such amount will be deemed repaid securities laws and regulations thereunder to the extent such laws and regulations are applicable in connection with each repurchase of Notes pursuant to an Asset Sale Offer. To the amount extent that the provisions of such offerany securities laws or regulations conflict with the provisions of Sections 3.09 or 4.10 of this Indenture, whether or the Company shall comply with the applicable securities laws and regulations and shall not accepted by the holders of such Indebtedness, and no Net Proceeds in the amount of such offer will be deemed to exist following such offer, and (ii) if the holder of any Indebtedness of a Restricted Subsidiary of the Company declines the repayment have breached its obligations under Section 3.09 or this Section 4.10 by virtue of such Indebtedness owed to it from such Net Proceeds such amount will be deemed repaid to the extent of the declined Net Proceeds, or
(2) 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 that results in the Company or any Restricted Subsidiary, as the case may be, owning an amount of the Capital Stock of such business such that such business constitutes a Restricted Subsidiary or increases the Company’s direct or indirect percentage ownership of the Capital Stock of a Restricted Subsidiary;compliance.
Appears in 1 contract
Sources: Indenture (Kraton Polymers LLC)
Asset Sales. (a) From and after the Completion Date, the Company The Issuer shall not consummatenot, and shall not permit any of its Restricted Subsidiaries to consummateto, consummate an Asset Sale, unless:
(1) the Company Issuer or such Restricted Subsidiary, as the case may be, receives consideration at the time of such Asset Sale at least equal to the fair market value (as determined in good faith by the Company at the time of contractually agreeing to such Asset SaleIssuer) of the assets sold or otherwise disposed of; and
(2) except in the case of a Permitted Asset Swap, if the property or assets sold or otherwise disposed of have a fair market value in excess of the greater of $375.0 million and 50.0% of LTM EBITDA for the most recently ended Test Period at the time of such disposition, at least 75.075% of the consideration therefor received by the Company Issuer or such Restricted Subsidiary, as the case may be, is in the form of cash or Cash Equivalents; provided that the amount of:
(Aa) any liabilities, contingent liabilities (as shown on the Issuer’s or otherwise, such Restricted Subsidiary’s most recent balance sheet or in the footnotes thereto) of the Company Issuer or such Restricted Subsidiary, other than liabilities that are by their terms subordinated to the Notes (or Guarantees) or that are owed to the Company Issuer or a Restricted Subsidiary Subsidiary, that (x) are assumed by the transferee of any such assets (or a third party in connection with such transfer) or (y) are otherwise cancelled or terminated in connection with the transaction with such transferee (other than intercompany debt owed to the Company or its Restricted Subsidiaries) and, in each case, and for which the Company Issuer and all of its Restricted Subsidiaries have been validly releasedirrevocably released from such liabilities,
(Bb) any securities, notes or other obligations or assets received by the Company Issuer or such Restricted Subsidiary from such transferee that are converted by the Company Issuer or such Restricted Subsidiary into cash or Cash Equivalents (to the extent of the cash or Cash Equivalents received) within 180 days following the closing of such Asset Sale;, subject to ordinary settlement periods, and
(C) Indebtedness of any Restricted Subsidiary that ceases to be a Restricted Subsidiary as a result of such Asset Sale (other than intercompany debt owed to the Company or any Restricted Subsidiary), to the extent that the Company and each other Restricted Subsidiary are released from any guarantee of payment of the principal amount of such Indebtedness in connection with such Asset Sale in accordance with the terms of this Indenture;
(D) consideration consisting of Indebtedness of the Issuers or a Guarantor (other than intercompany debt owed to the Company or any Restricted Subsidiary and other than Subordinated Indebtedness) received after the Issue Date from Persons who are not the Company, Holdings or any Restricted Subsidiary;
(Ec) any Designated Non-cash Consideration received by the Company Issuer or such Restricted Subsidiary in such Asset Sale having an aggregate fair market value, as determined by the Company, taken together with all other Designated Non-cash Consideration received pursuant to this clause (Ec) that is at that time outstanding, not to exceed the greater of (x) $225.0 million 25,000,000 and 30.0(y) 2.0% of LTM EBITDA for Total Assets as of the end of the Issuer’s most recently ended Test Period at fiscal quarter prior to the time date of the receipt of |US-DOCS\143900591.2|| such Designated Non-cash Consideration (Consideration, with the fair market value of each such item of Designated Non-cash Consideration being measured pursuant to this clause (E) at the Company’s option, either at the time of contractually agreeing to such Asset Sale or at the time received and, in either case, and without giving effect to subsequent changes in value); and
(F) any Investment, Capital Stock, assets, property or capital or other expenditure of the kind referred to in clauses (2) or (3) of Section 4.10(b) hereof value shall be deemed to be Cash Equivalents cash for purposes of this provision and for no other purpose.
(b) Within 540 days 18 months after the receipt of any Net Proceeds of any Asset Sale Sale:
(1) by the “Proceeds Application Period”)Issuer or any Restricted Subsidiary, then the Company Issuer or such Restricted Subsidiary, at their its option, may apply an amount equal to the Net Proceeds from such Asset Sale,
(1) Sale to reduce, prepay, repay or purchase:
(A) to the extent such Net Proceeds are from an Asset Sale of Collateral, permanently reduce Obligations with under Pari Passu Indebtedness of the Issuer or the Guarantors that is secured by a Lien, which Lien Priority (including the Senior Credit Facilities or any Refinancing Indebtedness in respect thereof but other than Indebtedness owed to the Company or any Restricted Subsidiary)is permitted by this Indenture, and, in the case of revolving obligations, and to correspondingly reduce commitments with respect thereto, provided that, to ;
(2) by the extent either Issuer or any Restricted Subsidiary will so repay Subsidiary, then the Issuer or such Restricted Subsidiary, at its option, may apply the Net Proceeds from such Asset Sale to permanently reduce Obligations under (i) the Notes (to the extent such purchases are at or above 100.0% of the principal amount thereof) or (ii) any such other Pari Passu Indebtedness of the Issuer or a Guarantor (other than and to correspondingly reduce commitments with respect thereto); provided, however, that the Notes), the Issuers Issuer shall equally and ratably reduce (or offer to reduce) Obligations under the Notes on a pro rata basis by, at their option, (i) redeeming Notes as provided under in Section 5 of each of the Notes and Sections 3.02 and 3.07 hereof (ii) purchasing Notes hereof, through open-market purchases (to the extent such purchases are at or (iiiabove 100% of the principal amount thereof) or by making an offer (in accordance with the procedures set forth herein for an Asset Sale Offerin Section 3.09 and Section 4.10(c) hereof) to all Holders of Notes to purchase their a pro rata amount of Notes at a purchase price equal to 100.0% of the principal amount thereof, plus the amount of accrued but unpaid interest, if any, on the principal amount of the Notes to be repurchased to the date of repurchase;
(B3) to [reserved];
(4) [reserved];
(5) by any Restricted Subsidiary that is not the extent Issuer or a Guarantor, then such Restricted Subsidiary that is not the Issuer or a Guarantor, at its option, may apply the Net Proceeds resulted from an of such Asset Sale to permanently reduce Obligations under Indebtedness of Restricted Subsidiaries that are not consisting of Collateralthe Issuer or not Guarantors, Obligations in respect of other Secured Indebtedness (which may include the Notes), and, in the case of revolving commitments, and to correspondingly reduce commitments with respect thereto;; or
(C6) Obligations in respect of by the Notes or any other Indebtedness (other than Subordinated Indebtedness) of the Company Issuer or any Restricted Subsidiary, other than Indebtedness owed to then the Company or any Restricted Subsidiary (and, in the case of revolving commitments, to correspondingly reduce commitments with respect thereto), provided that, to the extent either Issuer or any such Restricted Subsidiary will so repay any such Indebtedness (other than the Notes), the Issuers will reduce Obligations under the Notes on a pro rata basis bySubsidiary, at their its option, (i) redeeming Notes as provided under Section 3.07 hereof or (ii) by making an offer (in accordance with may apply the procedures set forth herein for an Net Proceeds from such Asset Sale Offerto (a) to all Holders to purchase their Notes at a purchase price equal to 100.0% of the principal amount thereof, plus the amount of accrued but unpaid interest, if any, on the principal amount of the Notes to be repurchased to the date of repurchase; or |US-DOCS\143900591.2||
(D) Obligations in respect of Indebtedness of a Non-Guarantor Subsidiary, other than Indebtedness owed to the Company or another Restricted Subsidiary; provided, in the case of clauses (A) or (C) above, (i) if an offer to purchase any Indebtedness of the Company or any Restricted Subsidiary is made, such amount will be deemed repaid to the extent of the amount of such offer, whether or not accepted by the holders of such Indebtedness, and no Net Proceeds in the amount of such offer will be deemed to exist following such offer, and (ii) if the holder of any Indebtedness of a Restricted Subsidiary of the Company declines the repayment of such Indebtedness owed to it from such Net Proceeds such amount will be deemed repaid to the extent of the declined Net Proceeds, or
(2) to make an Investment in (A) any one or more businesses; provided, provided however, that such Investment in any business is in the form of the acquisition of Capital Stock that and results in the Company Issuer or any Restricted Subsidiary, as the case may be, owning an amount of the Capital Stock of such business such that such business it constitutes a Restricted Subsidiary Subsidiary, (b) acquire properties, (c) make capital expenditures or increases (d) acquire other assets that, in the Company’s direct case of each of clauses (a), (b) and (d) either (x) are used or indirect percentage ownership useful in a Similar Business or (y) replace the businesses, properties or assets that are the subject of such Asset Sale; provided, 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.
(c) Any Net Proceeds from any Asset Sale pursuant to Section 4.10(b) that are not invested or applied as provided and within the time period set forth in Section 4.10(b) hereof shall be deemed to constitute “Excess Proceeds,” except the amount of Excess Proceeds shall be reduced by the sum of the amount of the Notes offered to be purchased in an offer pursuant to clause (2) above. When the aggregate amount of Excess Proceeds with respect to the Notes exceeds $10,000,000, the Issuer shall make an offer to all Holders of the Notes and, if required by the terms of any Pari Passu Indebtedness, to the holder of such Pari Passu Indebtedness (an “Asset Sale Offer”), to purchase the maximum aggregate principal amount of such Notes and the maximum aggregate principal amount (or accreted value, if less) of such Pari Passu Indebtedness that is a minimum of $2,000 or an integral multiple of $1,000 in principal amount 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 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 20 Business Days after the date that Excess Proceeds exceed $10,000,000 by sending the notice required pursuant to the terms of this Indenture, with a copy to the Trustee or otherwise in accordance with the Applicable 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 $10,000,000 or less. To the extent that the aggregate principal amount of Notes and the aggregate principal amount (or 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 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 Indenture. If the aggregate principal amount of 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 Notes, the Trustee or the Paying Agent shall select the Notes and the Issuer or the agent for such Pari Passu Indebtedness shall select such other Pari Passu Indebtedness to be purchased on a pro rata basis based on the principal amount of the Notes and the aggregate principal amount (or accreted value, if applicable) of such Pari Passu Indebtedness tendered. Upon completion of any such Asset Sale Offer, the amount of Excess Proceeds shall be reset at zero. Pending the final application of any Net Proceeds pursuant to this Section 4.10, the holder of such Net Proceeds may apply such Net Proceeds temporarily to reduce Indebtedness outstanding under a revolving credit facility, including under any Credit Facilities, or otherwise invest or apply such Net Proceeds in any manner not prohibited by this Indenture. The sale of assets of, or Capital Stock in, the Asset Sale Carve-Out Entities is not subject to the restrictions on Asset Sales set forth in this Section 4.10. The Issuer shall comply with the requirements of a Restricted Subsidiary;Rule 14e-1 under the Exchange Act and any other securities laws and regulations thereunder to the extent such laws or regulations are applicable in connection with the repurchase of the Notes pursuant to an Asset Sale Offer. To the extent that the provisions of any securities laws or regulations conflict with the provisions of this Indenture, the Issuer shall comply with the applicable securities laws and regulations and shall not be deemed to have breached its obligations described in this Indenture by virtue thereof.
Appears in 1 contract
Asset Sales. (a) From and after the Completion Date, the Company shall not consummateHoldings will not, and shall will not permit any of its Restricted Subsidiaries to consummateSubsidiary to, consummate an Asset Sale, Sale or a Permitted Seadrift Equity Disposition unless:
(1) In the Company case of an Asset Sale, Holdings or such Restricted Subsidiary, as the case may be, receives consideration at the time of such Asset Sale at least equal to the fair market value (as determined in good faith by the Company at the time of contractually agreeing to such Asset Sale) of the assets sold or otherwise disposed ofof as determined at the time the commitment to make such Asset Sale is given; and
(2) except in In the case of a Permitted an Asset Swap, if the property or assets sold or otherwise disposed of have a fair market value in excess of the greater of $375.0 million and 50.0% of LTM EBITDA for the most recently ended Test Period at the time of such dispositionSale, at least 75.075% of the consideration therefor received by Holdings or a Restricted Subsidiary from such Asset Sale, together with the Company consideration from all other Asset Sales since the Effective Date (on a cumulative basis) received by Holdings or such a Restricted Subsidiary, as the case may be, is in the form of cash or Cash Equivalents; provided provided, that the amount offollowing shall be deemed to be Cash Equivalents for purposes of this clause (2) and for no other purpose:
a. the amount of any liabilities (Aas shown on Holdings’ or such Restricted Subsidiary’s most recent balance sheet or in the footnotes thereto) any liabilities, contingent or otherwise, of the Company Holdings or such Restricted Subsidiary, other than liabilities that are by their terms subordinated to the Notes or that are owed to the Company or a Restricted Subsidiary that Loans, that: (xi) are assumed by the transferee of any such assets (or a third party in connection with such transfer) an Asset Sale to a Third Party for a bona fide business purpose, or (yii) that are otherwise cancelled or terminated in connection with the transaction with such transferee (other than intercompany debt owed to the Company Holdings or its Restricted Subsidiaries) and, in each case, for which the Company Holdings and all of its Restricted Subsidiaries have been validly released,released by all applicable creditors in writing;
(B) b. the fair market value at the time of the relevant Asset Sale of any securities, notes or other obligations or assets received by the Company Holdings or such Restricted Subsidiary from such transferee that are converted by the Company Holdings or such Restricted Subsidiary into cash or Cash Equivalents (to the extent of the cash or Cash Equivalents received) within 180 days following the closing of such Asset Sale;
(C) c. [reserved];
d. the principal amount of any Indebtedness of any Restricted Subsidiary that ceases to be a Restricted Subsidiary as a result of such Asset Sale (other than intercompany debt owed to Holdings or its Restricted Subsidiaries or debt subordinated to the Company or any Restricted SubsidiaryLoans), to the extent that the Company Holdings and each other Restricted Subsidiary are released from any guarantee of payment of the principal amount of such Indebtedness in connection with such Asset Sale in accordance with the terms of this Indenture;Sale, and
(D) consideration consisting of Indebtedness of the Issuers or a Guarantor (other than intercompany debt owed to the Company or any Restricted Subsidiary and other than Subordinated Indebtedness) received after the Issue Date from Persons who are not the Company, Holdings or any Restricted Subsidiary;
(E) any Designated Non-cash Consideration received by the Company or such Restricted Subsidiary in such Asset Sale having an aggregate fair market value, as determined by the Company, taken together with all other Designated Non-cash Consideration received pursuant to this clause (E) that is at that time outstanding, not to exceed the greater of $225.0 million and 30.0% of LTM EBITDA for the most recently ended Test Period at the time of the receipt of |US-DOCS\143900591.2|| such Designated Non-cash Consideration (with e. the fair market value of each property or assets received as consideration in such item Asset Sale so long as Holdings and its Restricted Subsidiaries would be permitted to make Investments in such property or assets with the Net Proceeds, if any, of Designated Non-cash Consideration being measured such Asset Sale pursuant to this clause (Eb)(2) at of this covenant.
(3) in the Company’s optioncase of a Permitted Seadrift Equity Disposition, either (i) the Loan Parties or Seadrift receive consideration at the time of contractually agreeing such Permitted Seadrift Equity Disposition at least equal to such Asset Sale the fair market value of the assets sold or otherwise disposed of as determined at the time received and, in either case, without giving effect the commitment to subsequent changes in value)make such Permitted Seadrift Equity Disposition is given; and
and (Fii) any Investment, Capital Stock, assets, property or capital or other expenditure at least 75% of the kind referred to consideration received by the Loan Parties or Seadrift from such Permitted Seadrift Equity Disposition is in clauses (2) the form of cash or (3) of Section 4.10(b) hereof Cash Equivalents; provided, that the following shall be deemed to be Cash Equivalents for purposes of this provision clause (ii) and for no other purpose:
a. the amount of any liabilities (as shown on the applicable Loan Party’s or Seadrift’s most recent balance sheet or in the footnotes thereto) of the Loan Parties or Seadrift, other than liabilities that are by their terms subordinated to the Loans, that: (i) are assumed by the Third Party transferee of the Permitted Seadrift Equity Disposition, or (ii) that are otherwise cancelled or terminated in connection with the transaction with such Third Party transferee (other than intercompany debt owed to Holdings or its Restricted Subsidiaries) and, in each case, for which Holdings and all of its Restricted Subsidiaries have been validly released by all applicable creditors in writing;
b. the fair market value at the time of the relevant Permitted Seadrift Equity Disposition of any securities, notes or other obligations or assets received by such Loan Parties or Seadrift from such transferee that are converted by such Loan Parties into cash or Cash Equivalents (to the extent of the Cash Equivalents received) within 180 days following the closing of such Permitted Seadrift Equity Disposition; and
c. the fair market value of property or assets received as consideration in such Permitted Seadrift Equity Disposition so long as Holdings and its Restricted Subsidiaries would be permitted to make Investments in such property or assets with the Net Proceeds, if any, of such Permitted Seadrift Equity Disposition pursuant to clause (b)(2) of this covenant.
(b) Within 540 (x) 365 days after the receipt of any Net Proceeds of any Asset Sale or (y) 730 days after the “receipt of any Net Proceeds Application Period”)of any Permitted Seadrift Equity Disposition, the Company Holdings or such Restricted Subsidiary, at their its option, may apply an amount equal to the Net Proceeds from such Asset Sale,Sale or Permitted Seadrift Equity Disposition:
(1) to reduce(a) in the case of an Asset Sale, prepay, repay or purchase:
(A) to the extent such the assets or property disposed of in the Asset Sale constituted Collateral or the Calais Facility, to repay: (i) Obligations under the Revolving Credit Facilities (without a corresponding commitment reduction), (ii) Term Loans (it being understood and agreed that any reduction of Delayed Draw Commitments shall be deemed, dollar-for-dollar, an application of Net Proceeds are from in an Asset Sale of Collateralamount equal to the Delayed Draw Commitments so reduced), Obligations with Pari Passu or (iii) any other First Lien Priority (including the Senior Credit Facilities or any Refinancing Indebtedness in respect thereof but Indebtedness, other than Indebtedness owed to Holdings or a Restricted Subsidiary; provided that if Holdings or a Restricted Subsidiary shall repay any Obligations under the Company Revolving Credit Facilities or any Restricted Subsidiary)other First Lien Indebtedness, and, it shall (x) reduce the principal amount of the Term Loans equally and ratably with the principal amount of any such Revolving Credit Facilities and such other First Lien Indebtedness repaid pursuant to this clause (1)(a) as provided in Section 2.11(a) and/or through open market purchases of the case of revolving obligations, to correspondingly reduce commitments with respect thereto, provided that, Term Loans (to the extent either Issuer such purchases are at or any Restricted Subsidiary will so repay any such Indebtedness above 100% of the principal amount thereof) and/or (other than the Notes), the Issuers shall reduce Obligations under the Notes on a pro rata basis by, at their option, (iy) redeeming Notes as provided under Section 3.07 hereof (ii) purchasing Notes through open-market purchases or (iii) by making make an offer (in accordance with the procedures set forth herein for an Asset Sale Offerin this Section 5.12) to all Holders Lenders to purchase prepay their Notes at a purchase price equal to 100.0% of the principal amount thereof, plus the amount of accrued but unpaid interest, if any, on the principal amount of the Notes to be repurchased to the date of repurchase;
(B) to the extent such Net Proceeds resulted from an Asset Sale not consisting of Collateral, Obligations in respect of other Secured Indebtedness (which may include the Notes), and, in the case of revolving commitments, to correspondingly reduce commitments with respect thereto;
(C) Obligations in respect of the Notes or any other Indebtedness (other than Subordinated Indebtedness) of the Company or any Restricted Subsidiary, other than Indebtedness owed to the Company or any Restricted Subsidiary (and, in the case of revolving commitments, to correspondingly reduce commitments with respect thereto), provided that, to the extent either Issuer or any Restricted Subsidiary will so repay any such Indebtedness (other than the Notes), the Issuers will reduce Obligations under the Notes Term Loans on a pro rata basis by, at their option, (i) redeeming Notes as provided under Section 3.07 hereof or (ii) by making an offer (in accordance with the procedures set forth herein for an Asset Sale Offer) to all Holders to purchase their Notes at a purchase price equal to 100.0% of the principal amount thereof, plus the amount of accrued but unpaid interest, if any, on the principal amount of the Notes to be repurchased to the date of repurchase; or |US-DOCS\143900591.2||
(D) Obligations in respect of Indebtedness of a Non-Guarantor Subsidiary, other than Indebtedness owed to the Company or another Restricted Subsidiary; provided, in the case of clauses (A) or (C) above, (i) if an offer to purchase any Indebtedness of the Company or any Restricted Subsidiary is made, such amount will be deemed repaid to the extent of the amount of such offer, whether or not accepted by the holders of such Indebtedness, and no Net Proceeds in the amount of such offer will be deemed to exist following such offer, and (ii) if the holder of any Indebtedness of a Restricted Subsidiary of the Company declines the repayment of such Indebtedness owed to it from such Net Proceeds such amount will be deemed repaid to the extent of the declined Net Proceeds, or
(2) 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 that results in the Company or any Restricted Subsidiary, as the case may be, owning an amount of the Capital Stock of such business such that such business constitutes a Restricted Subsidiary or increases the Company’s direct or indirect percentage ownership of the Capital Stock of a Restricted Subsidiaryratable basis;
Appears in 1 contract
Sources: Term Loan Credit Agreement (Graftech International LTD)
Asset Sales. (a) From and after the Completion Date, the Company VHS Holdco II shall not consummatenot, and shall not permit any of its Restricted Subsidiaries to consummateto, consummate an Asset Sale, Sale unless:
(1) the Company VHS Holdco II (or 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 (as determined in good faith by the Company at principal financial officer of VHS Holdco II or, in the time case of contractually agreeing to such Asset Saleassets and Equity Interests having a value in excess of $25.0 million, by the Board of Directors of VHS Holdco II) of the assets or Equity Interests issued or sold or otherwise disposed of; and
(2) except in the case of a Permitted Asset Swap, if the property or assets sold or otherwise disposed of have a fair market value in excess of the greater of $375.0 million and 50.0% of LTM EBITDA for the most recently ended Test Period at the time of such disposition, at least 75.075% of the consideration therefor received in the Asset Sale by the Company VHS Holdco II or such Restricted Subsidiary, as the case may be, Subsidiary is in the form of cash or Cash Equivalents; provided that the . The amount of:
of (A) any liabilities, contingent or otherwise, of the Company liabilities (as shown on VHS Holdco II’s or such Restricted Subsidiary, ’s most recent balance sheet or in the notes thereto) of VHS Holdco II or any Restricted Subsidiary (other than liabilities that are by their terms subordinated to the Notes or Notes) that are owed to the Company or a Restricted Subsidiary that (x) are assumed by the transferee of any such assets (or a third party in connection with such transfer) or (y) are otherwise cancelled or terminated in connection with the transaction with such transferee (other than intercompany debt owed to the Company or its Restricted Subsidiaries) and, in each case, and for which the Company VHS Holdco II and all of its Restricted Subsidiaries have been validly released,
released by all creditors in writing, (B) any securities, notes or other obligations or assets securities received by the Company VHS Holdco II or such Restricted Subsidiary from such transferee that are converted by the Company VHS Holdco II or such Restricted Subsidiary into cash or Cash Equivalents (to the extent of the cash or Cash Equivalents received) within 180 days following the closing of such Asset Sale;
receipt thereof and (C) Indebtedness of any Restricted Subsidiary that ceases to be a Restricted Subsidiary as a result of such Asset Sale (other than intercompany debt owed to the Company or any Restricted Subsidiary), to the extent that the Company and each other Restricted Subsidiary are released from any guarantee of payment of the principal amount of such Indebtedness in connection with such Asset Sale in accordance with the terms of this Indenture;
(D) consideration consisting of Indebtedness of the Issuers or a Guarantor (other than intercompany debt owed to the Company or any Restricted Subsidiary and other than Subordinated Indebtedness) received after the Issue Date from Persons who are not the Company, Holdings or any Restricted Subsidiary;
(E) any Designated Non-cash Consideration received by the Company VHS Holdco II or such any of its Restricted Subsidiary Subsidiaries in such Asset Sale having an aggregate fair market value, value (as determined in good faith by the CompanyVHS Holdco II), taken together with all other Designated Non-cash Consideration received pursuant to this clause (EC) that is at that time outstanding, not to exceed the greater of (i) $225.0 50.0 million and 30.0(ii) 2.0% of LTM EBITDA for the most recently ended Test Period Total Assets at the time of the receipt of |US-DOCS\143900591.2|| such Designated Non-cash Consideration (with the fair market value of each such item of Designated Non-cash Consideration being measured pursuant to this clause (E) at the Company’s option, either at the time of contractually agreeing to such Asset Sale or at the time received and, in either case, without giving effect to subsequent changes in value); and
(F) any Investment, Capital Stock, assets, property or capital or other expenditure of the kind referred to in clauses (2) or (3) of Section 4.10(b) hereof shall be deemed to be Cash Equivalents cash for purposes of this provision Section 4.08(a)(2) and for no other purpose. Notwithstanding the foregoing, the 75% limitation referred to in this clause (2) of Section 4.08(a) shall not apply to any Asset Sale in which the amount of consideration of the type referred to this clause (2) of Section 4.08(a) received therefrom, determined in accordance with the foregoing provision, is equal to or greater than what the after-tax proceeds would have been had such Asset Sale complied with the aforementioned 75% limitation.
(b) Within 540 365 days after the receipt of any Net Proceeds of by VHS Holdco II or any Restricted Subsidiary from an Asset Sale (the “Proceeds Application Period”)Sale, the Company VHS Holdco II or such Restricted Subsidiary, at their option, Subsidiary may apply an amount equal to the those Net Proceeds from such Asset Sale,at its option to:
(1) to reduce, prepay, repay or purchase:
(A) to permanently reduce Obligations under the extent such Net Proceeds are from an Asset Sale of Collateral, Obligations with Pari Passu Lien Priority (including the Senior Credit Facilities or any Refinancing Indebtedness in respect thereof but other than Indebtedness owed to the Company or any Restricted Subsidiary), Agreement and, in the case of revolving obligationsObligations thereunder, to correspondingly reduce commitments with respect thereto, provided that, to thereto (or other Indebtedness of the extent either Issuer Issuers or any a Guarantor secured by a Lien) or Pari Passu Indebtedness or Indebtedness of a Restricted Subsidiary will so repay any such Indebtedness (other than the Notes), that is not a Guarantor; provided that if the Issuers or a Guarantor shall so reduce Obligations under such Pari Passu Indebtedness, it shall equally and ratably reduce Obligations under the Notes on a pro rata basis by, at their option, (i) redeeming Notes as provided under Section 3.07 hereof (ii) purchasing Notes through open-market purchases or (iii) by making an offer (in accordance with the procedures set forth herein below for an Asset Sale Offer) to all Holders of Notes to purchase their Notes at a purchase price equal to 100.0100% of the principal amount thereof, plus the amount of accrued but and unpaid interestinterest and Additional Interest, if any, on the pro rata principal amount of the Notes to be repurchased to the date Notes) or Indebtedness of repurchase;
(B) to the extent such Net Proceeds resulted from an Asset Sale a Restricted Subsidiary that is not consisting of Collateral, Obligations in respect of other Secured Indebtedness (which may include the Notes), anda Guarantor, in the each case of revolving commitments, to correspondingly reduce commitments with respect thereto;
(C) Obligations in respect of the Notes or any other Indebtedness (other than Subordinated Indebtedness) of the Company or any Restricted Subsidiary, other than Indebtedness owed to either of the Company Issuers or any Restricted Subsidiary an Affiliate of the Issuers (and, provided that in the case of any reduction of any revolving commitmentsobligations, to correspondingly reduce the Issuers or such Restricted Subsidiary shall effect a corresponding reduction of commitments with respect thereto), provided that, to the extent either Issuer or any Restricted Subsidiary will so repay any such Indebtedness (other than the Notes), the Issuers will reduce Obligations under the Notes on a pro rata basis by, at their option, (i) redeeming Notes as provided under Section 3.07 hereof or (ii) by making an offer (in accordance with the procedures set forth herein for an Asset Sale Offer) to all Holders to purchase their Notes at a purchase price equal to 100.0% of the principal amount thereof, plus the amount of accrued but unpaid interest, if any, on the principal amount of the Notes to be repurchased to the date of repurchase; or |US-DOCS\143900591.2||
(D) Obligations in respect of Indebtedness of a Non-Guarantor Subsidiary, other than Indebtedness owed to the Company or another Restricted Subsidiary; provided, in the case of clauses (A) or (C) above, (i) if an offer to purchase any Indebtedness of the Company or any Restricted Subsidiary is made, such amount will be deemed repaid to the extent of the amount of such offer, whether or not accepted by the holders of such Indebtedness, and no Net Proceeds in the amount of such offer will be deemed to exist following such offer, and (ii) if the holder of any Indebtedness of a Restricted Subsidiary of the Company declines the repayment of such Indebtedness owed to it from such Net Proceeds such amount will be deemed repaid to the extent of the declined Net Proceeds, or;
(2) to make an Investment investment in (A) any one or more businesses, ; provided that such Investment investment in any business is in the form of the acquisition of Capital Stock that and results in the Company VHS Holdco II or any a Restricted Subsidiary, as the case may be, Subsidiary owning an amount of the Capital Stock of such business such that such business it constitutes a Restricted Subsidiary, (B) capital expenditures or (C) other assets, in each of (A), (B) and (C), used or useful in a Permitted Business; and/or
(3) 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 it results in VHS Holdco II or a Restricted Subsidiary or increases the Company’s direct or indirect percentage ownership owning an amount of the Capital Stock of such business such that it constitutes a Restricted Subsidiary;, (B) properties or (C) assets that, in each of (A), (B) and (C), replace the businesses, properties and assets that are the subject of such Asset Sale; provided that the 365-day period provided above to apply any portion of Net Proceeds in accordance with clause (2) or (3) of this Section 4.08(b) shall be extended by an additional 180 days if by not later than the 365th day after receipt of such Net Proceeds, VHS Holdco II or a Restricted Subsidiary, as applicable, has entered into a bona fide binding commitment with a Person other than an Affiliate of the Issuers to make an investment of the type referred to in either such clause in the amount of such Net Proceeds.
(c) When the aggregate amount of Net Proceeds not applied or invested in accordance with the preceding paragraph (“Excess Proceeds”) exceeds $30.0 million, the Issuers shall make an Asset Sale Offer to all Holders of Notes and any other Pari Passu Indebtedness requiring the making of such an offer to purchase on a pro rata basis or on as nearly a pro rata basis as is practicable (subject to DTC’s procedures) 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 shall be equal to 100% of the principal amount plus accrued and unpaid interest and Additional Interest, if any, to the date of purchase, and shall be payable in cash.
(d) Pending the final application of any Net Proceeds, VHS Holdco II or such Restricted Subsidiary may temporarily reduce revolving credit borrowings or otherwise invest the Net Proceeds in any manner that is not prohibited by this Indenture.
(e) If any Excess Proceeds remain after consummation of an Asset Sale Offer, the Issuers may use those Excess Proceeds for any purpose not otherwise prohibited by this Indenture. If the aggregate principal amount of Notes and such 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 shall be reset at zero.
(f) The Issuers shall comply with the requirements of Rule 14e-1 under the Exchange Act and any other securities laws and regulations thereunder to the extent those laws and regulations are applicable in connection with each repurchase of Notes pursuant to an Asset Sale Offer. To the extent that the provisions of any securities laws or regulations conflict with the Asset Sale provisions of this Indenture, the Issuers shall comply with the applicable securities laws and regulations and shall not be deemed to have breached their obligations under the Asset Sale provisions of this Indenture by virtue of such conflict.
Appears in 1 contract
Asset Sales. (a) From The Borrower and after the Completion Date, the Company Starwood REIT shall not consummatenot, and shall not permit any of its Restricted Subsidiaries to consummateSubsidiary to, consummate an Asset Sale, unless:
unless (1a) no Default or Event of Default exists or is continuing immediately prior to or after giving effect to such Asset Sale, (b) the Company Borrower, Starwood REIT, or such the applicable Restricted Subsidiary, as the case may be, receives consideration at the time of such Asset Sale at least equal to the fair market value (as determined in good faith by an Officer for any Asset Sale of less than $50.0 million and as determined by the Company at Board of Directors for any Asset Sale in excess of $50.0 million and, in each case, as set forth in an Officers' Certificate delivered to the time of contractually agreeing to such Asset SaleLenders annually) of the assets sold or otherwise disposed of; and
of and (2c) except in the case of a Permitted Asset Swap, if the property or assets sold or otherwise disposed of have a fair market value in excess of the greater of $375.0 million and 50.0% of LTM EBITDA for the most recently ended Test Period at the time of such disposition, at least 75.075% of the consideration therefor received by the Company Borrower, Starwood REIT or such any Restricted Subsidiary, as the case may be, is in the form of cash or Cash EquivalentsEquivalents or Investments that are not prohibited to be made under Section 5.7; provided provided, however, that the amount of:
of (A) any liabilitiesliabilities (as shown on the Borrower's, contingent Starwood REIT's, or otherwisesuch Restricted Subsidiary's, as the case may be, most recent balance sheet or in the notes thereto) of the Company Borrower, Starwood REIT, or such Restricted Subsidiary, as the case may be (other than liabilities that are by their terms expressly subordinated to the Senior Secured Notes or and the Affiliate Guaranty), that are owed to the Company or a Restricted Subsidiary that (x) are assumed by the transferee of any such assets (or a third party in connection with such transfer) or (y) are otherwise cancelled or terminated in connection with the transaction with such transferee (other than intercompany debt owed to the Company or its Restricted Subsidiaries) and, in each case, for which the Company and all of its Restricted Subsidiaries have been validly released,
(B) any securities, notes or other obligations or assets received by the Company or such Restricted Subsidiary from such transferee that are converted by the Company or such Restricted Subsidiary into cash or Cash Equivalents (to the extent of the cash or Cash Equivalents received) within 180 days following the closing of such Asset Sale;
(C) Indebtedness of any Restricted Subsidiary that ceases to be a Restricted Subsidiary as a result of such Asset Sale (other than intercompany debt owed to the Company or any Restricted Subsidiary)Borrower, to the extent that the Company and each other Restricted Subsidiary are released from any guarantee of payment of the principal amount of such Indebtedness in connection with such Asset Sale in accordance with the terms of this Indenture;
(D) consideration consisting of Indebtedness of the Issuers or a Guarantor (other than intercompany debt owed to the Company or any Restricted Subsidiary and other than Subordinated Indebtedness) received after the Issue Date from Persons who are not the Company, Holdings or any Restricted Subsidiary;
(E) any Designated Non-cash Consideration received by the Company or such Restricted Subsidiary in such Asset Sale having an aggregate fair market value, as determined by the Company, taken together with all other Designated Non-cash Consideration received pursuant to this clause (E) that is at that time outstanding, not to exceed the greater of $225.0 million and 30.0% of LTM EBITDA for the most recently ended Test Period at the time of the receipt of |US-DOCS\143900591.2|| such Designated Non-cash Consideration (with the fair market value of each such item of Designated Non-cash Consideration being measured pursuant to this clause (E) at the Company’s option, either at the time of contractually agreeing to such Asset Sale or at the time received and, in either case, without giving effect to subsequent changes in value); and
(F) any Investment, Capital Stock, assets, property or capital or other expenditure of the kind referred to in clauses (2) or (3) of Section 4.10(b) hereof shall be deemed to be Cash Equivalents for purposes of this provision and for no other purpose.
(b) Within 540 days after the receipt of any Net Proceeds of any Asset Sale (the “Proceeds Application Period”), the Company or such Restricted Subsidiary, at their option, may apply an amount equal to the Net Proceeds from such Asset Sale,
(1) to reduce, prepay, repay or purchase:
(A) to the extent such Net Proceeds are from an Asset Sale of Collateral, Obligations with Pari Passu Lien Priority (including the Senior Credit Facilities or any Refinancing Indebtedness in respect thereof but other than Indebtedness owed to the Company or any Restricted Subsidiary), and, in the case of revolving obligations, to correspondingly reduce commitments with respect thereto, provided that, to the extent either Issuer or any Restricted Subsidiary will so repay any such Indebtedness (other than the Notes), the Issuers shall reduce Obligations under the Notes on a pro rata basis by, at their option, (i) redeeming Notes as provided under Section 3.07 hereof (ii) purchasing Notes through open-market purchases or (iii) by making an offer (in accordance with the procedures set forth herein for an Asset Sale Offer) to all Holders to purchase their Notes at a purchase price equal to 100.0% of the principal amount thereof, plus the amount of accrued but unpaid interest, if any, on the principal amount of the Notes to be repurchased to the date of repurchase;
(B) to the extent such Net Proceeds resulted from an Asset Sale not consisting of Collateral, Obligations in respect of other Secured Indebtedness (which may include the Notes), and, in the case of revolving commitments, to correspondingly reduce commitments with respect thereto;
(C) Obligations in respect of the Notes or any other Indebtedness (other than Subordinated Indebtedness) of the Company or any Restricted Subsidiary, other than Indebtedness owed to the Company or any Restricted Subsidiary (and, in the case of revolving commitments, to correspondingly reduce commitments with respect thereto), provided that, to the extent either Issuer or any Restricted Subsidiary will so repay any such Indebtedness (other than the Notes), the Issuers will reduce Obligations under the Notes on a pro rata basis by, at their option, (i) redeeming Notes as provided under Section 3.07 hereof or (ii) by making an offer (in accordance with the procedures set forth herein for an Asset Sale Offer) to all Holders to purchase their Notes at a purchase price equal to 100.0% of the principal amount thereof, plus the amount of accrued but unpaid interest, if any, on the principal amount of the Notes to be repurchased to the date of repurchase; or |US-DOCS\143900591.2||
(D) Obligations in respect of Indebtedness of a Non-Guarantor Subsidiary, other than Indebtedness owed to the Company or another Restricted Subsidiary; provided, in the case of clauses (A) or (C) above, (i) if an offer to purchase any Indebtedness of the Company or any Restricted Subsidiary is made, such amount will be deemed repaid to the extent of the amount of such offer, whether or not accepted by the holders of such Indebtedness, and no Net Proceeds in the amount of such offer will be deemed to exist following such offer, and (ii) if the holder of any Indebtedness of a Restricted Subsidiary of the Company declines the repayment of such Indebtedness owed to it from such Net Proceeds such amount will be deemed repaid to the extent of the declined Net Proceeds, or
(2) 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 that results in the Company Starwood REIT or any Restricted Subsidiary, as the case may be, owning an amount from such transferee that are converted by the Borrower, Starwood REIT or such Restricted Subsidiary, as the case may be, into cash (to the extent of the Capital Stock cash received) within 5 Business Days following the closing of such business such that such business constitutes a Restricted Subsidiary or increases the Company’s direct or indirect percentage ownership Asset Sale, shall be deemed to be cash only for purposes of the Capital Stock satisfying clause (y) of a Restricted Subsidiary;this Section 5.10
Appears in 1 contract
Sources: Senior Secured Note Agreement (Starwood Hotel & Resorts Worldwide Inc)
Asset Sales. (a) From and after the Completion Date, the The Company shall not consummatewill not, and shall will not permit any of its Restricted Subsidiaries to consummateto, consummate an Asset Sale, Sale unless:
(1a) the Company (or such a Restricted Subsidiary, as the case may be, ) receives consideration (including by way of relief from, or by 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 determined in good faith by of the Company at date of the time of contractually agreeing definitive agreement with respect to such Asset Sale) of the assets or Equity Interests issued or sold or otherwise disposed of; and
(2b) except in the case of a Permitted Asset Swap, if the property or assets sold or otherwise disposed of have a fair market value in excess of the greater of $375.0 million and 50.0% of LTM EBITDA for the most recently ended Test Period at the time of such disposition, at least 75.075% of the aggregate consideration therefor received in the Asset Sale by the Company or such a Restricted SubsidiarySubsidiary and all other Asset Sales since the Escrow Release Date, as the case may beon a cumulative basis, is in the form of cash or Cash Equivalents; provided that . For purposes of this provision, each of the amount offollowing will be deemed to be cash:
(A1) any liabilities, contingent or otherwiseas shown on the Company’s most recent consolidated balance sheet, of the Company or such any Restricted Subsidiary, Subsidiary (other than contingent liabilities and liabilities that are by their terms subordinated to the Notes or any Note Guarantee) that are owed to the Company assumed or a Restricted Subsidiary that (x) are assumed novated by the transferee of any such assets (or a third party in connection with such transfer) or (y) that are otherwise cancelled cancelled, forgiven or terminated in connection with the transaction with such transferee transfer;
(other than intercompany debt owed 2) with respect to any Asset Sale of oil and natural gas properties by the Company or its any Restricted Subsidiaries) andSubsidiary where the Company or such Restricted Subsidiary retains an interest in such property, in each casecosts and expenses related to the exploration, for development, completion or production of such properties and activities related thereto which the Company and all of its Restricted Subsidiaries have been validly released,transferee (or an Affiliate thereof) agrees to pay;
(B3) any securities, notes or other obligations or assets received by the Company or such any Restricted Subsidiary from such transferee that are are, within 180 days of the Asset Sale, converted by the Company or such Restricted Subsidiary into cash or Cash Equivalents (cash, to the extent of the cash or Cash Equivalents received) within 180 days following the closing of such Asset Salereceived in that conversion;
(C4) Indebtedness of any Restricted Subsidiary that ceases to be a Restricted Subsidiary as a result of such Asset Sale (other than intercompany debt owed to the Company Capital Stock or any Restricted Subsidiary), to the extent that the Company and each other Restricted Subsidiary are released from any guarantee of payment assets of the principal amount kind referred to in clause (2) or (4) of such Indebtedness in connection with such Asset Sale in accordance with the terms of this Indenture;Section 4.10(c); and
(D) consideration consisting of Indebtedness of the Issuers or a Guarantor (other than intercompany debt owed to the Company or any Restricted Subsidiary and other than Subordinated Indebtedness) received after the Issue Date from Persons who are not the Company, Holdings or any Restricted Subsidiary;
(E5) any Designated Non-cash Consideration received by the Company or such Restricted Subsidiary in such Asset Sale having an aggregate fair market value, as determined by the CompanyFair Market Value, taken together with all other Designated Non-cash Consideration received pursuant to this clause (E) that is at that time outstanding5), not to exceed an amount equal to the greater of (x) $225.0 35.0 million and 30.0(y)5.0% of LTM EBITDA for the most recently ended Test Period Company’s Adjusted Consolidated Net Tangible Assets (determined at the time of the receipt of |US-DOCS\143900591.2|| such Designated Non-cash Consideration (Consideration), with the fair market value Fair Market Value of each such item of Designated Non-cash Consideration being measured pursuant to this clause (E) at the Company’s option, either at the time of contractually agreeing to such Asset Sale or at the time received and, in either case, and without giving effect to subsequent changes in value); and
(F) any Investment, Capital Stock, assets, property or capital or other expenditure of the kind referred to in clauses (2) or (3) of Section 4.10(b) hereof shall be deemed to be Cash Equivalents for purposes of this provision and for no other purpose.
(bc) Within 540 365 days after the receipt of any Net Proceeds of any from an Asset Sale (the “Proceeds Application Period”)Sale, the Company (or such any Restricted Subsidiary, at their option, ) may apply an amount equal to such Net Proceeds at its option to any combination of the following:
(1) to repay, repurchase or redeem any Indebtedness of the Company or a Restricted Subsidiary of the Company, other than (i) Indebtedness of the Company or a Guarantor that is subordinated in right of payment to the Notes or the Note Guarantees, (ii) Capital Stock or (iii) Indebtedness owed to an Affiliate of the Company;
(2) to acquire all or substantially all of the assets, or any 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 Capital Stock, such Person becomes a Restricted Subsidiary of the Company;
(3) to make capital expenditures in respect of the Company’s or any Restricted Subsidiaries’ Oil and Gas Business; or
(4) to acquire other assets that are not classified as current assets under GAAP and that are used or useful in the Oil and Gas Business. The requirement of clause (2) or (4) of this Section 4.10(c) shall be deemed to be satisfied if a bona fide binding contract committing to make the investment, acquisition or expenditure referred to therein is entered into by the Company or any of its Restricted Subsidiaries within the time period specified in the preceding paragraph and such Net Proceeds are subsequently applied in accordance with such contract within 180 days following the date such agreement is entered into. Pending the final application of any Net Proceeds, the Company (or any Restricted Subsidiary) may invest the Net Proceeds in any manner that is not prohibited by this Indenture. The amount equal to the Net Proceeds from such Asset Sale,
Sales that are not applied or invested as provided in this Section 4.10(c) will constitute “Excess Proceeds”. When the aggregate amount of Excess Proceeds exceeds $35.0 million, within ten business days thereof, the Company will make an offer (1an “Asset Sale Offer”) to reduceall Holders of the Notes and all holders of other Indebtedness that is pari passu with the Notes containing provisions similar to those set forth in this Section 4.10 with respect to offers to purchase, prepayprepay or redeem with the proceeds of sales of assets to purchase, repay prepay or purchase:
redeem, on a pro rata basis, the maximum principal amount of Notes and such other pari passu Indebtedness (Aplus 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 Company may satisfy the foregoing obligations with respect to the extent such any Net Proceeds are from an Asset Sale of Collateral, Obligations with Pari Passu Lien Priority (including the Senior Credit Facilities or any Refinancing Indebtedness in respect thereof but other than Indebtedness owed to the Company or any Restricted Subsidiary), and, in the case of revolving obligations, to correspondingly reduce commitments with respect thereto, provided that, to the extent either Issuer or any Restricted Subsidiary will so repay any such Indebtedness (other than the Notes), the Issuers shall reduce Obligations under the Notes on a pro rata basis by, at their option, (i) redeeming Notes as provided under Section 3.07 hereof (ii) purchasing Notes through open-market purchases or (iii) by making an offer (in accordance with the procedures set forth herein for an Asset Sale Offer) Offer with respect to such Net Proceeds or equivalent amount prior to the time period that may be required by this Indenture with respect to all Holders or a part of the available Net Proceeds (the “Advance Portion”) in advance of being required to purchase their Notes at a purchase do so by this Indenture (an “Advance Offer”). The offer price in any Asset Sale Offer will be equal to 100.0100% of the principal amount thereofamount, plus the amount of accrued but and unpaid interest, if any, on to, but excluding, the principal amount date of purchase, prepayment or redemption, subject to the rights of Holders of the Notes on the relevant record date to receive interest due on the relevant interest payment date, and will be repurchased to the date of repurchase;
payable in cash. If any Excess Proceeds (B) to the extent such Net Proceeds resulted from an Asset Sale not consisting of Collateral, Obligations in respect of other Secured Indebtedness (which may include the Notes), and, or in the case of revolving commitmentsan Advance Offer, to correspondingly reduce commitments with respect thereto;
(CAdvance Portion) Obligations in respect remain after consummation of the Notes or any other Indebtedness (other than Subordinated Indebtedness) of the Company or any Restricted Subsidiaryan Asset Sale Offer, other than Indebtedness owed to the Company or any Restricted Subsidiary may use those Excess Proceeds (and, or Advance Portion) for any purpose not otherwise prohibited by this Indenture. If the aggregate principal amount of Notes tendered in such Asset Sale Offer exceeds the amount of Excess Proceeds (or in the case of revolving commitmentsan Advance Offer, to correspondingly reduce commitments with respect thereto), provided that, the Advance Portion) allocated to the extent either Issuer or any Restricted Subsidiary will so repay any such Indebtedness (other than the purchase of Notes), the Issuers Trustee will reduce Obligations under select the Notes to be purchased on a pro rata basis byor by lot (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), based on the amounts tendered (with such adjustments as may be deemed appropriate by the Trustee so that only Notes in minimum denominations of $2,000, or an integral multiple of $1,000 in excess thereof, will be purchased). Upon completion of each Asset Sale Offer (or Advance Offer), the amount of Excess Proceeds (or Advance Portion) will be reset at their option, (i) redeeming Notes as provided under Section 3.07 hereof or (ii) by making an offer (in accordance zero. The Company will comply with the procedures set forth herein for requirements of Rule 14e-1 under the Exchange Act and any other securities laws and regulations thereunder to the extent those laws and regulations are applicable in connection with each repurchase of Notes pursuant to an Asset Sale Offer or Advance Offer) to all Holders to purchase their Notes at a purchase price equal to 100.0% . To the extent that the provisions of the principal amount thereofany securities laws or regulations conflict with Section 3.09 or this Section 4.10, plus the amount of accrued but unpaid interest, if any, on the principal amount of the Notes to be repurchased to the date of repurchase; or |US-DOCS\143900591.2||
(D) Obligations in respect of Indebtedness of a Non-Guarantor Subsidiary, other than Indebtedness owed to the Company or another Restricted Subsidiary; provided, in will comply with the case of clauses (A) or (C) above, (i) if an offer to purchase any Indebtedness of the Company or any Restricted Subsidiary is made, such amount applicable securities laws and regulations and will be deemed repaid to the extent of the amount of such offer, whether or not accepted by the holders of such Indebtedness, and no Net Proceeds in the amount of such offer will be deemed to exist following such offer, and (ii) if the holder of any Indebtedness of a Restricted Subsidiary of the Company declines the repayment have breached its obligations under Section 3.09 or this Section 4.10 by virtue of such Indebtedness owed to it from such Net Proceeds such amount will be deemed repaid to the extent of the declined Net Proceeds, or
(2) 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 that results in the Company or any Restricted Subsidiary, as the case may be, owning an amount of the Capital Stock of such business such that such business constitutes a Restricted Subsidiary or increases the Company’s direct or indirect percentage ownership of the Capital Stock of a Restricted Subsidiary;compliance.
Appears in 1 contract
Sources: Indenture (Penn Virginia Corp)
Asset Sales. (a) From and after the Completion Date, the The Company shall not consummatewill not, and shall will not permit any of its Restricted Subsidiaries to consummateto, consummate an Asset SaleSale unless (it being understood that dispositions of all or substantially all of the assets of the Company and its Restricted Subsidiaries, unless:taken as a whole (including by way of merger or consolidation), will be governed by Section 5.01 as applicable, and not by this Section 4.12):
(1i) the Company (or such 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 (as determined in good faith by the Company at the time of contractually agreeing to such Asset Sale) Fair Market Value of the assets or Equity Interests issued or sold or otherwise disposed of; and
(2ii) except in the case of a Permitted Asset Swap, if the property or assets sold or otherwise disposed of have a fair market value in excess of the greater of $375.0 million and 50.0% of LTM EBITDA for the most recently ended Test Period at the time of such disposition, at least 75.075% of the consideration therefor received by the Company or such the Restricted Subsidiary, as the case may be, Subsidiary is in the form of cash or Cash Equivalents; provided that Qualified Proceeds. For purposes of clause (ii), each of the amount offollowing shall be deemed cash:
(Aa) the amount (without duplication) of any liabilities, contingent Indebtedness or otherwise, other liabilities of the Company or such any Restricted Subsidiary, Subsidiary (other than contingent liabilities and liabilities that are by their terms subordinated to the Notes or any Guarantee of the Notes) that are owed to the Company satisfied or a Restricted Subsidiary that (x) are assumed by the transferee in such Asset Sale pursuant to a customary assumption or novation agreement or by operation of any such assets (or a third party in connection with such transfer) or (y) are otherwise cancelled or terminated in connection with the transaction with such transferee (other than intercompany debt owed to the Company or its Restricted Subsidiaries) and, in each case, for which the Company and all of its Restricted Subsidiaries have been validly released,
(B) any securities, notes or other obligations or assets received by law that releases the Company or such Restricted Subsidiary from further liability;
(b) the amount of any obligations received from such transferee that are within 180 days converted by the Company or such Restricted Subsidiary into to cash or Cash Equivalents (to the extent of the cash or Cash Equivalents actually so received) within 180 days following the closing of such Asset Sale;); and
(C) Indebtedness of any Restricted Subsidiary that ceases to be a Restricted Subsidiary as a result of such Asset Sale (other than intercompany debt owed to the Company or any Restricted Subsidiary), to the extent that the Company and each other Restricted Subsidiary are released from any guarantee of payment of the principal amount of such Indebtedness in connection with such Asset Sale in accordance with the terms of this Indenture;
(D) consideration consisting of Indebtedness of the Issuers or a Guarantor (other than intercompany debt owed to the Company or any Restricted Subsidiary and other than Subordinated Indebtedness) received after the Issue Date from Persons who are not the Company, Holdings or any Restricted Subsidiary;
(Ec) any Designated Non-cash Consideration received by the Company or such any of its Restricted Subsidiary Subsidiaries in such Asset Sale having an aggregate fair market value, as determined by the CompanyFair Market Value, taken together with all other Designated Non-cash Consideration received pursuant to this clause (Ec) that is at that time then outstanding, not to exceed the greater of (x) $225.0 100.0 million and 30.0(y) 12.5% of LTM EBITDA for the most recently ended Test Period Total Tangible Assets at the time of the receipt of |US-DOCS\143900591.2|| such Designated Non-cash Consideration (with the fair market value Fair Market Value of each such item of Designated Non-cash Consideration being measured pursuant to this clause (E) at the Company’s option, either at the time of contractually agreeing to such Asset Sale or at the time received and, in either case, and without giving effect to subsequent changes in value); and
(F) any Investment, Capital Stock, assets, property or capital or other expenditure of the kind referred to in clauses (2) or (3) of Section 4.10(b) hereof shall be deemed to be Cash Equivalents for purposes of this provision and for no other purpose.
(b) . Within 540 365 days after the receipt of any Net Proceeds of any from an Asset Sale (the “Proceeds Application Period”)Sale, the Company or such Restricted Subsidiary, at their option, may apply an amount equal with respect to the Net Proceeds from such Asset Sale,
(1) to reduce, prepay, repay or purchase:
(A) to the extent such Net Proceeds are from an Asset Sale of Collateralcommitted to be applied in accordance with the paragraphs below during such 365-day period, Obligations with Pari Passu Lien Priority (including the Senior Credit Facilities or any Refinancing Indebtedness in respect thereof but other than Indebtedness owed to within 180 days after such initial 365 day period, the Company or any Restricted Subsidiary)Subsidiary may apply the Net Proceeds, and, at its option,
(a) to repay or otherwise retire amounts owing under the Credit Agreement in accordance with the case of revolving obligations, Credit Agreement and to correspondingly reduce commitments with respect thereto, provided that, ,
(b) to the extent either Issuer repay or any Restricted Subsidiary will so repay any such otherwise retire amounts owing under other Secured Indebtedness (other than subordinated obligations), which Secured Indebtedness is permitted by this Indenture, and to correspondingly reduce commitments with respect thereto,
(c) to the acquisition of a majority of the assets of, or a majority of the Voting Stock of, another Permitted Business, to making a capital expenditure for the construction, repair, improvement or acquisition of assets that are used or useful in a Permitted Business (or commitment to do any of the foregoing, provided that this commitment or its reasonable replacement is consummated substantially in accordance with its terms), and/or
(d) for a combination of uses described in clauses (a), (b) or (c). Pending the final application of any Net Proceeds, the Company and 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. Any Net Proceeds from Asset Sales that are not applied or invested as provided in the immediately preceding paragraph will be deemed to constitute “Excess Proceeds.” When the aggregate amount of Excess Proceeds exceeds $50.0 million, the Company will be required to make an offer to all Holders of Notes with a copy to the Trustee (an “Asset Sale Offer”) to purchase the maximum principal amount of Notes and, if the Company is required to do so under the terms of any other Indebtedness that is pari passu with the Notes), the Issuers shall reduce Obligations under the Notes such other Indebtedness on a pro rata basis bywith the Notes, that may be purchased out of the Excess Proceeds, at their option, (i) redeeming Notes as provided under Section 3.07 hereof (ii) purchasing Notes through open-market purchases or (iii) by making an offer (price in cash in an amount equal to 100% of the principal amount of the Notes plus accrued and unpaid interest thereon, if any, to, but not including, the date of repurchase, in accordance with the procedures set forth herein for in this Indenture. To the extent that any Excess Proceeds remain after consummation of an Asset Sale Offer) to all Holders to purchase their Notes at a purchase price equal to 100.0% of , the Company may use the Excess Proceeds for any general corporate purpose. If the aggregate principal amount thereof, plus of Notes and other pari passu Indebtedness tendered into such Asset Sale Offer exceeds the amount of accrued but unpaid interestExcess Proceeds, if anysubject to Applicable Procedures in the case of Notes represented by one or more Global Notes, the Trustee will select the Notes and the Company will select such other pari passu Indebtedness to be purchased on a pro rata basis based on the value or principal amount of the Notes to be repurchased to the date or such pari passu Indebtedness tendered. Upon completion of repurchase;
(B) to the extent such Net Proceeds resulted from an Asset Sale not consisting of Collateral, Obligations in respect of other Secured Indebtedness (which may include the Notes), and, in the case of revolving commitments, to correspondingly reduce commitments with respect thereto;
(C) Obligations in respect of the Notes or any other Indebtedness (other than Subordinated Indebtedness) of the Company or any Restricted Subsidiary, other than Indebtedness owed to the Company or any Restricted Subsidiary (and, in the case of revolving commitments, to correspondingly reduce commitments with respect thereto), provided that, to the extent either Issuer or any Restricted Subsidiary will so repay any such Indebtedness (other than the Notes), the Issuers will reduce Obligations under the Notes on a pro rata basis by, at their option, (i) redeeming Notes as provided under Section 3.07 hereof or (ii) by making an offer (in accordance with the procedures set forth herein for an each Asset Sale Offer) to all Holders to purchase their Notes at a purchase price equal to 100.0% of the principal amount thereof, plus the amount of accrued but unpaid interest, if any, on the principal amount of the Notes to Excess Proceeds shall be repurchased to the date of repurchase; or |US-DOCS\143900591.2||
(D) Obligations in respect of Indebtedness of a Non-Guarantor Subsidiary, other than Indebtedness owed to the Company or another Restricted Subsidiary; provided, in the case of clauses (A) or (C) above, (i) if an offer to purchase any Indebtedness of the Company or any Restricted Subsidiary is made, such amount will be deemed repaid to the extent of the amount of such offer, whether or not accepted by the holders of such Indebtedness, and no Net Proceeds in the amount of such offer will be deemed to exist following such offer, and (ii) if the holder of any Indebtedness of a Restricted Subsidiary of the Company declines the repayment of such Indebtedness owed to it from such Net Proceeds such amount will be deemed repaid to the extent of the declined Net Proceeds, or
(2) 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 that results in the Company or any Restricted Subsidiary, as the case may be, owning an amount of the Capital Stock of such business such that such business constitutes a Restricted Subsidiary or increases the Company’s direct or indirect percentage ownership of the Capital Stock of a Restricted Subsidiary;reset at zero.
Appears in 1 contract
Asset Sales. (a) From and after the Completion Date, the Company shall not consummateThe Borrower will not, and shall will not permit any of its Restricted Subsidiaries to, sell, assign (other than assignments intended to consummateconvey a Lien), farm-out, convey or otherwise transfer (collectively, a “Sale”) any Oil and Gas Property or Equity Interests of any Restricted Subsidiary owning Oil and Gas Properties to any Person in any transaction that constitutes an Asset Sale, unless:
(1i) the Company Borrower (or such the Restricted Subsidiary, as the case may be, ) receives consideration at (including by way of relief from, or any Person assuming responsibilities for, any liabilities, contingent or otherwise), determined on the time date of contractually agreeing to such Asset Sale Sale, at least equal to the fair market value (as determined in good faith by the Company at the time of contractually agreeing to such Asset Sale) of the assets or Equity Interests issued or sold or otherwise disposed of; and
(2ii) except in the case of a Permitted Asset Swap, if the property or assets sold or otherwise disposed of have a fair market value in excess of the greater of $375.0 million and 50.0% of LTM EBITDA for the most recently ended Test Period at the time of such disposition, at least 75.075% of the aggregate consideration therefor received by the Company or Borrower and its Restricted Subsidiaries in the Asset Sale (determined on the date of contractually agreeing to such Restricted SubsidiaryAsset Sale) and all other Asset Sales since the date hereof, as the case may beon a cumulative basis, is in the form of cash or Cash Equivalents; provided that the amount offoregoing shall not apply to any exchange of Properties in connection with the Section 1031 Exchange. For purposes of this provision, each of the following will be deemed to be cash:
(A) any liabilities, contingent or otherwise, of as shown on the Company Borrower’s or such Restricted Subsidiary’s most recent balance sheet, of the Borrower or any Subsidiary (other than contingent liabilities and liabilities that are by their terms subordinated in right of payment to the Notes or any subsidiary guarantee) that are owed to the Company or a Restricted Subsidiary that (x) are assumed by the transferee of any such assets (pursuant to a customary novation agreement that releases the Borrower or a third party in connection with such transfer) or (y) are otherwise cancelled or terminated in connection with the transaction with such transferee (other than intercompany debt owed to the Company or its Restricted Subsidiaries) and, in each case, for which the Company and all of its Restricted Subsidiaries have been validly released,Subsidiary from further liability;
(B) any securities, notes or other obligations or assets received by the Company Borrower or any such Restricted Subsidiary from such transferee that are are, within 180 days after the Asset Sale, converted by the Company Borrower or such Restricted Subsidiary into cash or Cash Equivalents (cash, to the extent of the cash or Cash Equivalents received) within 180 days following the closing of such Asset Sale;received in that conversion; and
(C) Indebtedness accounts receivable of any Restricted Subsidiary that ceases to be a Restricted Subsidiary as a result of such Asset Sale (other than intercompany debt owed to business retained by the Company Borrower or any of its Restricted Subsidiary), to the extent that the Company and each other Restricted Subsidiary are released from any guarantee of payment of the principal amount of such Indebtedness in connection with such Asset Sale in accordance with the terms of this Indenture;
(D) consideration consisting of Indebtedness of the Issuers or a Guarantor (other than intercompany debt owed to the Company or any Restricted Subsidiary and other than Subordinated Indebtedness) received after the Issue Date from Persons who are not the Company, Holdings or any Restricted Subsidiary;
(E) any Designated Non-cash Consideration received by the Company or such Restricted Subsidiary in such Asset Sale having an aggregate fair market value, as determined by the Company, taken together with all other Designated Non-cash Consideration received pursuant to this clause (E) that is at that time outstanding, not to exceed the greater of $225.0 million and 30.0% of LTM EBITDA for the most recently ended Test Period at the time of the receipt of |US-DOCS\143900591.2|| such Designated Non-cash Consideration (with the fair market value of each such item of Designated Non-cash Consideration being measured pursuant to this clause (E) at the Company’s option, either at the time of contractually agreeing to such Asset Sale or at the time received and, in either case, without giving effect to subsequent changes in value); and
(F) any Investment, Capital Stock, assets, property or capital or other expenditure of the kind referred to in clauses (2) or (3) of Section 4.10(b) hereof shall be deemed to be Cash Equivalents for purposes of this provision and for no other purpose.
(b) Within 540 days after the receipt of any Net Proceeds of any Asset Sale (the “Proceeds Application Period”), the Company or such Restricted Subsidiary, at their option, may apply an amount equal to the Net Proceeds from such Asset Sale,
(1) to reduce, prepay, repay or purchase:
(A) to the extent such Net Proceeds are from an Asset Sale of Collateral, Obligations with Pari Passu Lien Priority (including the Senior Credit Facilities or any Refinancing Indebtedness in respect thereof but other than Indebtedness owed to the Company or any Restricted Subsidiary), and, in the case of revolving obligations, to correspondingly reduce commitments with respect thereto, provided that, to the extent either Issuer or any Restricted Subsidiary will so repay any such Indebtedness (other than the Notes), the Issuers shall reduce Obligations under the Notes on a pro rata basis by, at their option, (i) redeeming Notes as provided under Section 3.07 hereof (ii) purchasing Notes through open-market purchases or (iii) by making an offer (in accordance with the procedures set forth herein for an Asset Sale Offer) to all Holders to purchase their Notes at a purchase price equal to 100.0% of the principal amount thereof, plus the amount of accrued but unpaid interest, if any, on the principal amount of the Notes to be repurchased to the date of repurchase;
(B) to the extent such Net Proceeds resulted from an Asset Sale not consisting of Collateral, Obligations in respect of other Secured Indebtedness (which may include the Notes), and, in the case of revolving commitments, to correspondingly reduce commitments with respect thereto;
(C) Obligations in respect of the Notes or any other Indebtedness (other than Subordinated Indebtedness) of the Company or any Restricted Subsidiary, other than Indebtedness owed to the Company or any Restricted Subsidiary (and, in the case of revolving commitments, to correspondingly reduce commitments with respect thereto), provided that, to the extent either Issuer or any Restricted Subsidiary will so repay any such Indebtedness (other than the Notes), the Issuers will reduce Obligations under the Notes on a pro rata basis by, at their option, (i) redeeming Notes as provided under Section 3.07 hereof or (ii) by making an offer (in accordance with the procedures set forth herein for an Asset Sale Offer) to all Holders to purchase their Notes at a purchase price equal to 100.0% of the principal amount thereof, plus the amount of accrued but unpaid interest, if any, on the principal amount of the Notes to be repurchased to the date of repurchase; or |US-DOCS\143900591.2||
(D) Obligations in respect of Indebtedness of a Non-Guarantor Subsidiary, other than Indebtedness owed to the Company or another Restricted Subsidiary; provided, in the case of clauses (A) or (C) above, (i) if an offer to purchase any Indebtedness of the Company or any Restricted Subsidiary is made, such amount will be deemed repaid to the extent of the amount of such offer, whether or not accepted by the holders of such Indebtedness, and no Net Proceeds in the amount of such offer will be deemed to exist following such offer, and (ii) if the holder of any Indebtedness of a Restricted Subsidiary of the Company declines the repayment of such Indebtedness owed to it from such Net Proceeds such amount will be deemed repaid to the extent of the declined Net Proceeds, or
(2) 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 that results in the Company or any Restricted SubsidiarySubsidiaries, as the case may be, owning an amount following the sale of such business, provided that such accounts receivable (i) are not past due more than 90 days and (ii) do not have a payment date greater than 120 days from the date of the Capital Stock of invoices creating such business such that such business constitutes a Restricted Subsidiary or increases the Company’s direct or indirect percentage ownership of the Capital Stock of a Restricted Subsidiary;accounts receivable.
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Asset Sales. (a) From and after the Completion Date, the The Company shall not consummatewill not, and shall will not permit any of its Restricted Subsidiaries to consummateto, consummate an Asset Sale, Sale unless:
(1) the Company (or such 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 determined in good faith by of the Company at date of the time of contractually agreeing definitive agreement with respect to such Asset Sale) of the assets or Equity Interests issued or sold or otherwise disposed of; and
(2) except in the case of a Permitted Asset Swap, if the property or assets sold or otherwise disposed of have a fair market value in excess of the greater of $375.0 million and 50.0% of LTM EBITDA for the most recently ended Test Period at the time of such disposition, at least 75.075% of the consideration therefor received in the Asset Sale by the Company or such Restricted Subsidiary, as the case may be, Subsidiary is in the form of cash or Cash Equivalents; provided that . For purposes of this provision, each of the amount offollowing will be deemed to be cash:
(A) any liabilities, contingent or otherwiseas shown on the Company’s most recent consolidated balance sheet, of the Company or such any Restricted Subsidiary, Subsidiary (other than contingent liabilities and liabilities that are by their terms subordinated in right of payment to the Notes or any Note Guarantee) that are owed to the Company or a Restricted Subsidiary that (x) are assumed by the transferee of any such assets (or a third party in connection with such transfer) or (y) are otherwise cancelled or terminated in connection with the transaction with such transferee (other than intercompany debt owed pursuant to an agreement that releases the Company or its such Restricted Subsidiaries) and, in each case, for which the Company and all of its Restricted Subsidiaries have been validly released,Subsidiary from or indemnifies against further liability therefor;
(B) any securities, notes or other obligations or assets received by the Company or any such Restricted Subsidiary from such transferee that are are, within 90 days of the Asset Sale, converted by the Company or such Restricted Subsidiary into cash or Cash Equivalents (cash, to the extent of the cash or Cash Equivalents received) within 180 days following the closing of such Asset Salereceived in that conversion;
(C) Indebtedness of any Restricted Subsidiary that ceases to be a Restricted Subsidiary as a result of such Asset Sale (other than intercompany debt owed to the Company stock or any Restricted Subsidiary), to the extent that the Company and each other Restricted Subsidiary are released from any guarantee of payment of the principal amount of such Indebtedness in connection with such Asset Sale in accordance with the terms of this Indenture;
(D) consideration consisting of Indebtedness of the Issuers or a Guarantor (other than intercompany debt owed to the Company or any Restricted Subsidiary and other than Subordinated Indebtedness) received after the Issue Date from Persons who are not the Company, Holdings or any Restricted Subsidiary;
(E) any Designated Non-cash Consideration received by the Company or such Restricted Subsidiary in such Asset Sale having an aggregate fair market value, as determined by the Company, taken together with all other Designated Non-cash Consideration received pursuant to this clause (E) that is at that time outstanding, not to exceed the greater of $225.0 million and 30.0% of LTM EBITDA for the most recently ended Test Period at the time of the receipt of |US-DOCS\143900591.2|| such Designated Non-cash Consideration (with the fair market value of each such item of Designated Non-cash Consideration being measured pursuant to this clause (E) at the Company’s option, either at the time of contractually agreeing to such Asset Sale or at the time received and, in either case, without giving effect to subsequent changes in value); and
(F) any Investment, Capital Stock, assets, property or capital or other expenditure assets of the kind referred to in clauses (2) or (34) of Section 4.10(b); and
(D) hereof shall be deemed any Designated non-Cash Consideration received by the Company or any Restricted Subsidiary in such Asset Sale having an aggregate Fair Market Value, taken with all other Designated non-Cash Consideration received pursuant to be this clause (D) since the Issue Date that is at the time outstanding, not to exceed the greater of (a) $75.0 million and (b) 5.0% of the Consolidated Net Tangible Assets of the Company at the time of receipt of such Designated non-Cash Equivalents for purposes Consideration (with the Fair Market Value of this provision each item of Designated non-Cash Consideration being measured at the time received and for no other purposewithout giving effect to subsequent changes in value).
(b) Within 540 365 days after the receipt of any Net Proceeds of any from an Asset Sale (the “Proceeds Application Period”)Sale, the Company (or such Restricted Subsidiary, at their option, may apply an amount equal to the Net Proceeds from such Asset Sale,
(1) to reduce, prepay, repay or purchase:
(A) to the extent such Net Proceeds are from an Asset Sale of Collateral, Obligations with Pari Passu Lien Priority (including the Senior Credit Facilities or any Refinancing Indebtedness in respect thereof but other than Indebtedness owed to the Company or any Restricted Subsidiary), and, in the case of revolving obligations, to correspondingly reduce commitments with respect thereto, provided that, to the extent either Issuer or any Restricted Subsidiary will so repay any such Indebtedness (other than the Notes), the Issuers shall reduce Obligations under the Notes on a pro rata basis by, at their option, (i) redeeming Notes as provided under Section 3.07 hereof (ii) purchasing Notes through open-market purchases or (iii) by making an offer (in accordance with the procedures set forth herein for an Asset Sale Offer) to all Holders to purchase their Notes at a purchase price equal to 100.0% of the principal amount thereof, plus the amount of accrued but unpaid interest, if any, on the principal amount of the Notes to be repurchased to the date of repurchase;
(B) to the extent such Net Proceeds resulted from an Asset Sale not consisting of Collateral, Obligations in respect of other Secured Indebtedness (which may include the Notes), and, in the case of revolving commitments, to correspondingly reduce commitments with respect thereto;
(C) Obligations in respect of the Notes or any other Indebtedness (other than Subordinated Indebtedness) of the Company or any Restricted Subsidiary, other than Indebtedness owed to the Company or any Restricted Subsidiary (and, in the case of revolving commitments, to correspondingly reduce commitments with respect thereto), provided that, to the extent either Issuer or any Restricted Subsidiary will so repay any such Indebtedness (other than the Notes), the Issuers will reduce Obligations under the Notes on a pro rata basis by, at their option, (i) redeeming Notes as provided under Section 3.07 hereof or (ii) by making an offer (in accordance with the procedures set forth herein for an Asset Sale Offer) to all Holders to purchase their Notes at a purchase price equal to 100.0% of the principal amount thereof, plus the amount of accrued but unpaid interest, if any, on the principal amount of the Notes to be repurchased to the date of repurchase; or |US-DOCS\143900591.2||
(D) Obligations in respect of Indebtedness of a Non-Guarantor Subsidiary, other than Indebtedness owed to the Company or another Restricted Subsidiary; provided, in the case of clauses (A) or (C) above, (i) if an offer to purchase any Indebtedness of the Company or any Restricted Subsidiary is made, such amount will be deemed repaid to the extent of the amount of such offer, whether or not accepted by the holders of such Indebtedness, and no Net Proceeds in the amount of such offer will be deemed to exist following such offer, and (ii) if the holder of any Indebtedness of a Restricted Subsidiary of the Company declines the repayment of such Indebtedness owed to it from such Net Proceeds such amount will be deemed repaid to the extent of the declined Net Proceeds, or
(2) 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 that results in the Company or any applicable Restricted Subsidiary, as the case may be, owning an amount ) may apply such Net Proceeds to any combination of the Capital Stock of such business such that such business constitutes a Restricted Subsidiary following:
(1) to repay, redeem or increases the Company’s direct or indirect percentage ownership otherwise retire secured Indebtedness of the Capital Stock of Company or a Restricted Subsidiary;
(2) to acquire all or substantially all of the assets of, or any Capital Stock of, one or more other Persons primarily engaged in a Permitted Business, if, after giving effect to any such acquisition of Capital Stock, such Person is or becomes a Restricted Subsidiary of the Company;
(3) to make capital expenditures in respect of the Company’s or any of its Restricted Subsidiaries’ Permitted Business; or
(4) to acquire other assets that are not classified as current assets under GAAP and that are used or useful in a Permitted Business. The requirement of 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 investment, acquisition or expenditure referred to therein is entered into by the Company or any of its Restricted Subsidiaries within the time period specified in this Section 4.10(b) and such Net Proceeds are subsequently applied in accordance with such contract within 180 days following the date such agreement is entered into.
(c) Pending the final application of any Net Proceeds, the Company (or the applicable Restricted Subsidiary) may 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) hereof will constitute “Excess Proceeds.” When the aggregate amount of Excess Proceeds exceeds $50.0 million, within five days thereof, the Company will make an Asset Sale Offer, in accordance with Section 3.09 hereof, 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, 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 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 Special Interest, if any, to the date of purchase, prepayment or redemption, subject to the rights of Holders 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 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 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 pari passu Indebtedness to be purchased on a pro rata basis (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 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 amount of Excess Proceeds will be reset at zero.
(e) 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 those laws and regulations are applicable in connection with each repurchase of Notes pursuant to 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 hereof, the Company will comply with the applicable securities laws and regulations and will not be deemed to have breached its obligations under Section 3.09 or Section 4.10 hereof by virtue of such compliance.
Appears in 1 contract
Sources: Indenture (CST Brands, Inc.)