Asset Sales. The Company will not, and will not permit any of its Restricted Subsidiaries to, consummate an Asset Sale unless: (1) the Company or the Restricted Subsidiary, as the case may be, receives consideration at the time of the Asset Sale at least equal to the Fair Market Value (measured as of the date of the definitive agreement with respect to such Asset Sale) of the assets or Equity Interests issued or sold or otherwise disposed of; and (2) at least 75% of the consideration received in such Asset Sale is in the form of cash or Cash Equivalents; provided that any of the following items shall be deemed to be cash and Cash Equivalents for the purposes of this clause (2): (a) the assumption of any liabilities (as shown on the Company’s or the Restricted Subsidiary’s most recent balance sheet) of the Company or any Restricted Subsidiary of the Company (other than liabilities that are by their terms subordinated to Notes issued under this Indenture or any Subsidiary Guarantee) by the transferee of any such assets pursuant to a customary novation agreement that releases the Company or the Restricted Subsidiary from further liability; (b) any securities, notes or other obligations received by the Company or any such Restricted Subsidiary from such transferee that are converted by the Company or the Restricted Subsidiary into cash or Cash Equivalents within 180 days following their receipt (to the extent of cash or Cash Equivalents received); and (c) any stock or assets of the kind referred to in clauses (b) and (d) of the next paragraph of this Section 4.10. Within 365 days after the receipt of any Net Proceeds from an Asset Sale, the Company or the Restricted Subsidiary, as the case may be, may apply such Net Proceeds, at its option: (a) to prepay, repay, purchase, repurchase or redeem any secured Indebtedness of the Company or any Restricted Subsidiary of the Company; (b) to acquire a controlling interest in another business or all or substantially all of the assets or operating line of another business, in each case engaged in a Permitted Business; (c) to make capital expenditures; or (d) to acquire other non-current assets to be used in a Permitted Business. Pending the final application of any such Net Proceeds, the Company may temporarily reduce Indebtedness under any Credit Facility or otherwise expend or invest such Net Proceeds in any manner that is not prohibited by this Indenture. Any Net Proceeds from Asset Sales described in this paragraph that are not applied or invested as provided in the first sentence of this paragraph of this Section 4.10 shall be deemed to constitute “Excess Asset Sale Proceeds.” When the aggregate amount of Excess Asset Sale Proceeds exceeds $10.0 million, the Company will be required under this Indenture to make an offer to the Holders of Notes issued thereunder and the holders of any other Senior Indebtedness that is subject to requirements with respect to the application of net proceeds from asset sales that are substantially similar to those contained in this Indenture (an “Asset Sale Offer”) to purchase on a pro rata basis (with the Excess Asset Sale Proceeds prorated between the Holders of the Notes and such holders of such other Senior Indebtedness based upon outstanding aggregate principal amounts) the maximum principal amount of the Notes and such other Senior Indebtedness that may be purchased or prepaid, as applicable, out of the prorated Excess Asset Sale 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. To the extent that the aggregate principal amount of Notes and other Senior Indebtedness tendered (and electing to be redeemed or repaid, as applicable) pursuant to an Asset Sale Offer is less than the Excess Asset Sale Proceeds, the Company and its Restricted Subsidiaries may use any remaining Excess Asset Sale Proceeds for general corporate purposes and any other purpose not prohibited by this Indenture. Upon completion of the offer to purchase, the amount of Excess Asset Sale Proceeds shall 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 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, 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 the Company’s compliance with such securities laws or regulations.
Appears in 2 contracts
Samples: Indenture (Global Geophysical Services Inc), Indenture (Global Geophysical Services Inc)
Asset Sales. The Company will notSell, and will not permit transfer, lease or otherwise dispose of all or any part of its Restricted Subsidiaries toproperty or assets (other than sales of inventory in the ordinary course of business), consummate an Asset Sale unlesswhether in a single transaction or in a series of transactions, related or otherwise, except that:
(1i) each Obligor and its Subsidiaries may liquidate or otherwise dispose of obsolete or worn-out property in the ordinary course of business;
(ii) each Obligor and its Subsidiaries may sell assets (other than the capital stock or other equity interests of any Subsidiary if, after giving effect to such sale, the entity would no longer be a Subsidiary), so long as (A) no Event of Default or Potential Event of Default then exists or would result therefrom, (B) each such sale is made on an arm’s-length basis and such Obligor or the respective Subsidiary receives at least fair market value, as determined in good faith by the board of directors of such Obligor, (C) the Company consideration received by such Obligor or the Restricted Subsidiary, as the case may be, receives consideration such Subsidiary consists solely of Cash and is paid at the time of the Asset Sale closing of such sale; provided that the Obligors and their Subsidiaries may only sell or otherwise dispose of assets under this clause (C) in an amount not exceeding $10,000,000 in any Financial Year and (D) such assets are not subject to the lien of the Security Documents;
(iii) each Obligor and its Subsidiaries may sell or discount, in each case without recourse and in the ordinary course of business, accounts receivable arising in the ordinary course of business, but only in connection with the compromise or collection thereof and not as part of any financing transaction;
(iv) each Obligor and its Subsidiaries may grant licenses, sublicenses, leases or subleases to other Persons not materially interfering with the conduct of the business of such Obligor or any of its Subsidiaries, in each case so long as no such grant otherwise affects IFC’s security interest in the asset or property subject thereto;
(v) each Obligor or any Subsidiary may convey, sell or otherwise transfer all or any part of its business, properties and assets to an Obligor or to any wholly-owned Subsidiary of an Obligor, so long as any security interests granted to IFC pursuant to the Security Documents in the assets so transferred shall remain in full force and effect with the Applicable Priority Security Interest (to at least equal to the Fair Market Value (measured same extent as of the date of the definitive agreement with respect in effect immediately prior to such Asset Saletransfer) of the assets or Equity Interests issued or sold or otherwise disposed ofand all actions required to maintain said perfected status have been taken; and
(2vi) at least 75% each Obligor and its Subsidiaries may liquidate or otherwise dispose of the consideration received in such Asset Sale is Cash Equivalents in the form ordinary course of cash or Cash Equivalents; provided that any of the following items shall be deemed to be cash and Cash Equivalents for the purposes of this clause (2):
(a) the assumption of any liabilities (as shown on the Company’s or the Restricted Subsidiary’s most recent balance sheet) of the Company or any Restricted Subsidiary of the Company (other than liabilities that are by their terms subordinated to Notes issued under this Indenture or any Subsidiary Guarantee) by the transferee of any such assets pursuant to a customary novation agreement that releases the Company or the Restricted Subsidiary from further liability;
(b) any securities, notes or other obligations received by the Company or any such Restricted Subsidiary from such transferee that are converted by the Company or the Restricted Subsidiary into cash or Cash Equivalents within 180 days following their receipt (to the extent of cash or Cash Equivalents received); and
(c) any stock or assets of the kind referred to in clauses (b) and (d) of the next paragraph of this Section 4.10. Within 365 days after the receipt of any Net Proceeds from an Asset Sale, the Company or the Restricted Subsidiary, as the case may be, may apply such Net Proceeds, at its option:
(a) to prepay, repay, purchase, repurchase or redeem any secured Indebtedness of the Company or any Restricted Subsidiary of the Company;
(b) to acquire a controlling interest in another business or all or substantially all of the assets or operating line of another business, in each case engaged in a Permitted Businessfor Cash at fair market value;
(c) to make capital expenditures; or
(d) to acquire other non-current assets to be used in a Permitted Business. Pending the final application of any such Net Proceeds, the Company may temporarily reduce Indebtedness under any Credit Facility or otherwise expend or invest such Net Proceeds in any manner that is not prohibited by this Indenture. Any Net Proceeds from Asset Sales described in this paragraph that are not applied or invested as provided in the first sentence of this paragraph of this Section 4.10 shall be deemed to constitute “Excess Asset Sale Proceeds.” When the aggregate amount of Excess Asset Sale Proceeds exceeds $10.0 million, the Company will be required under this Indenture to make an offer to the Holders of Notes issued thereunder and the holders of any other Senior Indebtedness that is subject to requirements with respect to the application of net proceeds from asset sales that are substantially similar to those contained in this Indenture (an “Asset Sale Offer”) to purchase on a pro rata basis (with the Excess Asset Sale Proceeds prorated between the Holders of the Notes and such holders of such other Senior Indebtedness based upon outstanding aggregate principal amounts) the maximum principal amount of the Notes and such other Senior Indebtedness that may be purchased or prepaid, as applicable, out of the prorated Excess Asset Sale 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. To the extent that the aggregate principal amount of Notes and other Senior Indebtedness tendered (and electing to be redeemed or repaid, as applicable) pursuant to an Asset Sale Offer is less than the Excess Asset Sale Proceeds, the Company and its Restricted Subsidiaries may use any remaining Excess Asset Sale Proceeds for general corporate purposes and any other purpose not prohibited by this Indenture. Upon completion of the offer to purchase, the amount of Excess Asset Sale Proceeds shall 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 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, 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 the Company’s compliance with such securities laws or regulations.
Appears in 2 contracts
Samples: Loan Agreement (Canuelas Mill S.A.C.I.F.I.A.), Loan Agreement (Canuelas Mill S.A.C.I.F.I.A.)
Asset Sales. (a) The Company will not, and will not permit any of its Restricted Subsidiaries to, consummate an Asset Sale unless:
(1) the Company (or the Restricted Subsidiary, as the case may be, ) receives consideration at the time of the Asset Sale at least equal to the Fair Market Value (measured as of the date of the definitive agreement with respect to such Asset Sale) of the assets or Equity Interests issued or sold or otherwise disposed of;
(2) the Fair Market Value is determined by the Company’s Board of Directors and evidenced by a resolution of the Board of Directors of the Company set forth in an Officers’ Certificate delivered to the Trustee; and
(23) at least 75% of the consideration received by the Company or such Restricted Subsidiary from all Asset Sales since the Issue Date, in such Asset Sale the aggregate, is in the form of cash or Cash Equivalents; provided that any cash.
(4) For purposes of this provision, each of the following items shall will be deemed to be cash and Cash Equivalents for the purposes of this clause (2):cash:
(aA) the assumption of any liabilities (liabilities, as shown on the Company’s or the such Restricted Subsidiary’s most recent balance sheet) , of the Company or any Restricted Subsidiary of the Company (other than contingent liabilities and liabilities that are by their terms subordinated to the Notes issued under this Indenture or any Subsidiary Guarantee) that are assumed by the transferee of any such assets pursuant to a customary novation agreement that releases the Company or the such Restricted Subsidiary from further liability;; and
(bB) any securities, notes or other obligations received by the Company or any such Restricted Subsidiary from such transferee that are converted within 90 days by the Company or the such Restricted Subsidiary into cash or Cash Equivalents within 180 days following their receipt (cash, to the extent of the cash or Cash Equivalents received); andreceived in that conversion.
(c) any stock or assets of the kind referred to in clauses (b) and (d) of the next paragraph of this Section 4.10. Within 365 360 days after the receipt of any Net Proceeds from an Asset Sale, the Company or the any such Restricted Subsidiary, as the case may be, Subsidiary may apply such those Net Proceeds, Proceeds at its optionoption to any combination of the following:
(a1) to prepay, repay, purchaseredeem or repurchase Indebtedness under a Credit Facility; provided that if such Indebtedness is revolving credit Indebtedness, repurchase or redeem any secured Indebtedness of the Company or any Restricted Subsidiary of the Companyto correspondingly reduce commitments with respect thereto as specified in Section 4.09 hereof;
(b2) to acquire a controlling interest in another business or all or substantially all of the properties or assets of one or operating more other Persons primarily engaged in the Oil and Gas Business, and, for this purpose, a division or line of another business, in each case engaged in business of a Permitted BusinessPerson shall be treated as a separate Person so long as such properties and assets are acquired by the Company or a Restricted Subsidiary;
(c3) to acquire a majority of the Voting Stock of one or more other Persons primarily engaged in the Oil and Gas Business, if after giving effect to any such acquisition of Voting Stock, such Person is or becomes a Restricted Subsidiary;
(4) to make one or more capital expenditures; or
(d5) to acquire other nonlong-current term assets to be that are used or useful in a Permitted the Oil and Gas Business. Pending the final application of any such Net Proceeds, the Company or any such Restricted Subsidiary may temporarily reduce Indebtedness under any Credit Facility revolving credit borrowings or otherwise expend or invest such the Net Proceeds in any manner that is not prohibited by this Indenture. .
(c) Any Net Proceeds from Asset Sales described in this paragraph that are not applied or invested as provided in the first sentence of this paragraph of this Section 4.10 shall be deemed to 4.10(b) hereof will constitute “Excess Asset Sale Proceeds.” When On the 361st day after the Asset Sale (or, at the Company’s option, any earlier date), if the aggregate amount of Excess Asset Sale Proceeds then exceeds $10.0 15.0 million, the Company will be required under this Indenture to make an offer Asset Sale Offer to the all Holders of Notes issued thereunder pursuant to Section 3.09 hereof, and the all holders of any other Senior Indebtedness that is subject pari passu with the Notes containing provisions similar to requirements those in this Indenture with respect to the application of net proceeds from asset sales that are substantially similar to those contained in this Indenture (an “Asset Sale Offer”) offers to purchase on a pro rata basis (or redeem with the Excess Asset Sale Proceeds prorated between the Holders proceeds of the Notes and such holders sales of such other Senior Indebtedness based upon outstanding aggregate principal amounts) assets, to purchase the maximum principal amount of the Notes and such other Senior pari passu Indebtedness that may be purchased or prepaid, as applicable, out of the prorated Excess Asset Sale Proceeds, at an .
(d) The offer price in cash in an amount any Asset Sale Offer will be equal to 100% of the principal amount thereof plus accrued and unpaid interest thereon interest, if any, to the date of purchasesettlement, subject to the right of Holders 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 accordance with cash.
(e) If any Excess Proceeds remain after consummation of an Asset Sale Offer, the procedures set forth in Company may use those Excess Proceeds for any purpose not otherwise prohibited by this Indenture. To the extent that .
(f) If the aggregate principal amount of Notes and other Senior Indebtedness ranking pari passu with the Notes tendered (and electing to be redeemed or repaid, as applicable) pursuant to an into such Asset Sale Offer is less than exceeds the amount of Excess Asset Sale Proceeds, the Company trustee will select the Notes and its Restricted Subsidiaries may use any remaining Excess Asset Sale Proceeds for general corporate purposes and any such other purpose not prohibited by this Indenturepari passu Indebtedness to be purchased on a pro rata basis. Upon completion of the offer to purchaseeach Asset Sale Offer, the amount of Excess Asset Sale Proceeds shall 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 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, 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 the Company’s compliance with such securities laws or regulations.
Appears in 2 contracts
Samples: Indenture (Energy Xxi (Bermuda) LTD), Indenture (Energy Xxi (Bermuda) LTD)
Asset Sales. (a) The Company will shall not, and will shall not cause or permit any of its Restricted Subsidiaries to, directly or indirectly, consummate an Asset Sale 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 (measured as of the date of the definitive agreement with respect to such Asset Sale) of the assets or Equity Interests issued or sold or otherwise disposed of; and
(2) at least 75% of the consideration received in such the Asset Sale by the Company or such Restricted Subsidiary is in the form of cash or Cash Equivalents; provided that any of the following items shall be deemed to be cash and cash, Cash Equivalents for or Replacement Assets or a combination thereof (which determination may be made by the Issuer, at its option, either (x) at the time such Asset Sale is approved by the Issuer’s Board of Directors or (y) at the time the Asset Sale is completed). For purposes of this clause (2):), each of the following will be deemed to be cash:
(aA) the assumption of any liabilities (liabilities, as shown recorded on the Company’s or the Restricted Subsidiary’s most recent balance sheet) sheet of the Company or any Restricted Subsidiary of the Company (other than contingent liabilities or liabilities that are by their terms subordinated to the Notes issued under this Indenture or any Subsidiary Guarantee) the Notes Guarantees), that are assumed by the transferee of any such assets pursuant to and as a customary novation agreement that releases result of which the Company and its Restricted Subsidiaries are no longer obligated with respect to such liabilities or the Restricted Subsidiary from are indemnified against further liabilityliabilities or that are otherwise retired or repaid;
(bB) any securities, notes or other obligations received by the Company or any such Restricted Subsidiary from such transferee that are converted by the Company or the such Restricted Subsidiary into cash or Cash Equivalents within 180 days following their receipt (the closing of the Asset Sale, to the extent of the cash or Cash Equivalents received); andreceived in that conversion;
(cC) any stock Capital Stock or assets of the kind referred to in clauses Section 4.09(b)(2) or (4);
(D) Indebtedness (other than Indebtedness that is by its terms subordinated to the Notes or the Notes Guarantees) of any Restricted Subsidiary that is no longer a Restricted Subsidiary as a result of such Asset Sale, to the extent that Carnival plc and each other Restricted Subsidiary are released from any Guarantee of such Indebtedness in connection with such Asset Sale;
(E) consideration consisting of Indebtedness of the Company or any Guarantor received from Persons who are not the Company or any Restricted Subsidiary; and
(F) consideration other than cash, Cash Equivalents or Replacement Assets received by the Company or any Restricted Subsidiary in Asset Sales with a Fair Market Value not exceeding $250.0 million in the aggregate outstanding at any one time.
(b) and (d) of the next paragraph of this Section 4.10. Within 365 450 days after the receipt of any Net Proceeds from an Asset SaleSale or any Event of Loss, the Company (or the applicable Restricted Subsidiary, as the case may be, ) may apply such Net Proceeds, at its option:
(a1) to prepay, repay, purchase, repurchase or redeem any secured Indebtedness the Notes pursuant to an offer to all Holders at a purchase price equal to 100% of the Company or any Restricted Subsidiary principal amount thereof, plus accrued and unpaid interest to (but not including) the date of the Companypurchase (a “Notes Offer”);
(b2) to acquire a controlling interest in another business or all or substantially all of the assets of, or operating line any Capital Stock of, another Permitted Business; provided that after giving effect to any such acquisition of another businessCapital Stock, in each case engaged the Permitted Business is or becomes a Restricted Subsidiary;
(3) to make a capital expenditure;
(4) to acquire other assets (other than Capital Stock) not classified as current assets under GAAP that are used or useful in a Permitted Business;
(5) to repurchase, prepay, redeem or repay Indebtedness (a) of the Company or a Restricted Subsidiary that is secured by a Lien; provided that in connection with any repurchase, prepayment, redemption or repayment of revolving credit Indebtedness pursuant to this clause (a), the Company or such Restricted Subsidiary will retire such Indebtedness and will cause the related commitment to be permanently reduced in an amount equal to the principal amount so repurchased, prepaid, redeemed or repaid, (b) of a Restricted Subsidiary which is not a Guarantor (other than Indebtedness owed to the Company or a Restricted Subsidiary) or (c) of the Issuer or a Guarantor which is unsecured and which is pari passu or senior in right of payment with the Notes or any Note Guarantee; provided that, in the case of this clause (c), the Company (or the applicable Restricted Subsidiary) may repurchase, prepay, redeem or repay such pari passu Indebtedness only if the Company (or the applicable Restricted Subsidiary) makes an offer to make capital expendituresall Holders to purchase their Notes in accordance with the provisions set forth below for an Asset Sale Offer for an aggregate principal amount of Notes at least equal to the proportion that (x) the total aggregate principal amount of Notes outstanding bears to (y) the sum of the total aggregate principal amount of Notes outstanding plus the total aggregate principal amount outstanding of such pari passu Indebtedness;
(6) to enter into a binding commitment to apply the Net Proceeds pursuant to clause (2), (3) or (4) of this Section 4.09(b); provided that such binding commitment (or any subsequent commitments replacing the initial commitment that may be cancelled or terminated) shall be treated as a permitted application of the 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 450 day period; or
(d7) to acquire other non-current assets to be used in a Permitted Businessany combination of the foregoing. Pending the final application of any such Net Proceeds, the Company (or the applicable Restricted Subsidiary) may temporarily reduce Indebtedness borrowings under any Credit Facility revolving credit facility, or otherwise expend or invest such the Net Proceeds in any manner that is not prohibited by this Indenture. .
(c) Any Net Proceeds from Asset Sales described in this paragraph or an Event of Loss that are not applied or invested as provided in the first sentence Section 4.09(b) (it being understood that any portion of this paragraph of this such Net Proceeds used to make an offer to purchase Notes as described in Section 4.10 4.09(b)(1) or (5) above shall be deemed to have been applied or invested whether or not such Notes Offer is accepted) will constitute “Excess Asset Sale Proceeds.” When the aggregate amount of Excess Asset Sale Proceeds exceeds $10.0 million250.0 million (or at an earlier time, at the option of the Issuer), within ten Business Days thereof, the Company will be required under this Indenture to make an offer to the Holders of Notes issued thereunder and the holders of any other Senior Indebtedness that is subject to requirements with respect to the application of net proceeds from asset sales that are substantially similar to those contained in this Indenture (an “Asset Sale Offer”) to purchase on a pro rata basis (all Holders and may make an offer to all holders of other unsecured Indebtedness that is pari passu in right of payment with the Excess Asset Sale Proceeds prorated between Notes or any Note Guarantees with respect to offers to purchase, prepay or redeem with the Holders proceeds of the Notes and such holders sales of such other Senior Indebtedness based upon outstanding aggregate principal amounts) assets or events of loss to purchase, prepay or redeem the maximum principal amount of the Notes and such other Senior 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 purchased, prepaid or prepaid, as applicable, redeemed out of the prorated Excess Proceeds. The offer price for the Notes in any Asset Sale Proceeds, at an offer price in cash in an amount Offer will be equal to 100% of the principal amount thereof amount, plus accrued and unpaid interest thereon and Additional Amounts, 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 accordance with cash. If any Excess Proceeds remain after consummation of an Asset Sale Offer, the procedures set forth in Company or a Restricted Subsidiary may use those Excess Proceeds for any purpose not otherwise prohibited by this Indenture. To the extent that If the aggregate principal amount of Notes and such other Senior pari passu Indebtedness tendered into (and electing or to be prepaid or redeemed or repaid, as applicablein connection with) pursuant to an such Asset Sale Offer is less than exceeds the amount of Excess Asset Sale Proceeds, or if the Company aggregate amount of Notes tendered pursuant to a Notes Offer exceeds the amount of the Net Proceeds so applied, the Trustee will select the Notes and its Restricted Subsidiaries may use any remaining Excess Asset Sale Proceeds for general corporate purposes and any such other purpose not prohibited by this Indenturepari passu Indebtedness, if applicable, to be purchased on a pro rata basis (or in the manner provided in Section 3.03), based on the amounts tendered or required to be prepaid or redeemed. Upon completion of the offer to purchaseeach Asset Sale Offer, the amount of Excess Asset Sale Proceeds shall will be reset at zero. The Company will comply with the requirements of Rule 14e-1 under the U.S. Exchange Act and any other securities laws and regulations thereunder (and rules of any exchange on which the Notes are then listed) to the extent such laws and those laws, regulations or rules are applicable in connection with each repurchase of Notes pursuant to an Asset Sale Offer or a Notes Offer. To the extent that the provisions of any securities laws or regulations or exchange rules conflict with the Asset Sale or Notes Offer provisions of this Section 4.10Indenture, the Company will comply with the applicable securities laws laws, regulations and regulations rules and will not be deemed to have breached its obligations under the Asset Sale or Notes Offer provisions of this Section 4.10 Indenture by virtue of the Company’s compliance with such securities laws or regulationscompliance.
Appears in 2 contracts
Asset Sales. The Company will shall not, and will shall not permit any of its Restricted Subsidiaries to, consummate an Asset Sale unless:
unless (1i) the Company (or the Restricted Subsidiary, as the case may be, ) receives consideration at the time of the such Asset Sale at least equal to the Fair Market Value fair market value (measured as evidenced by a resolution of the date Board of Directors set forth in an Officers' Certificate delivered to the definitive agreement with respect to such Asset SaleTrustee) of the assets or Equity Interests issued or sold or otherwise disposed of; and
of and (2ii) at least 75% of the consideration therefor received in by the Company or such Asset Sale Restricted Subsidiary is in the form of cash or Cash Equivalents; provided provided, that any the amount of the following items shall be deemed to be cash and Cash Equivalents for the purposes of this clause (2):
(ax) the assumption of any liabilities (as shown on the Company’s 's or the such Restricted Subsidiary’s 's most recent balance sheet) ), of the Company or any Restricted Subsidiary of the Company (other than contingent liabilities and liabilities that are by their terms subordinated to the Notes issued under this Indenture or any Subsidiary GuaranteeGuarantee thereof) that are assumed by the transferee of any such assets pursuant to a customary novation agreement that releases the Company or the such Restricted Subsidiary from further liability;
liability and (by) any securities, notes or other obligations received by the Company or any such Restricted Subsidiary from such transferee that are converted by the Company or the such Restricted Subsidiary into cash or Cash Equivalents (to extent of the cash received) within 180 days following their receipt (the closing of such Asset Sale, shall be deemed to the extent of be cash or Cash Equivalents received); and
(c) any stock or assets of the kind referred to in clauses (b) and (d) of the next paragraph for purposes of this Section 4.10provision. Within 365 360 days after the receipt of any Net Proceeds from an Asset Sale, the Company or the its Restricted Subsidiary, as the case may be, Subsidiaries may apply such Net Proceeds, at its option:
, (a) to prepayrepay Senior Debt, repayor (b) to the investment in, purchaseor the making of a capital expenditure or the acquisition of other long-term assets, repurchase in each case used or redeem useable in a Permitted Business, from a party other than the Company or a Restricted Subsidiary, or (c) the acquisition of Capital Stock of any secured Indebtedness Person primarily engaged in a Permitted Business if, as a result of the acquisition by the Company or any Restricted Subsidiary thereof, such Person becomes a Restricted Subsidiary, or (d) a combination of the Company;
uses described in clauses (a), (b) to acquire a controlling interest in another business or all or substantially all of the assets or operating line of another business, in each case engaged in a Permitted Business;
and (c) to make capital expenditures; or
(d) to acquire other non-current assets to be used in a Permitted Business). Pending the final application of any such Net Proceeds, the Company or its Restricted Subsidiaries may temporarily reduce Indebtedness under any Credit Facility Senior Debt or otherwise expend or invest such Net Proceeds in any manner that is not prohibited by this Indenture. Any Net Proceeds from Asset Sales described in this paragraph that are not applied or invested as provided in the first sentence of this paragraph of this Section 4.10 shall will be deemed to constitute “"Excess Asset Sale Proceeds.” " When the aggregate amount of Excess Asset Sale Proceeds exceeds $10.0 7.5 million, the Company will be required under this Indenture to make an offer to the all Holders of Notes issued thereunder and and, to the extent required by the terms of any Pari Passu Indebtedness to all holders of any other Senior such Pari Passu Indebtedness that is subject to requirements with respect to the application of net proceeds from asset sales that are substantially similar to those contained in this Indenture (an “"Asset Sale Offer”) "), to purchase on a pro rata basis (with the Excess Asset Sale Proceeds prorated between the Holders of the Notes and such holders of such other Senior Indebtedness based upon outstanding aggregate principal amounts) repurchase the maximum principal amount of the Notes and any such other Senior Pari Passu Indebtedness that may be purchased or prepaid, as applicable, out of the prorated Excess Asset Sale Proceeds, at an offer price in cash in an amount equal to 100% of the principal amount thereof plus accrued and unpaid interest and Liquidated Damages, if any, thereon to the date of purchaserepurchase, in accordance with the procedures set forth in this IndentureSection 3.09 hereof or such Pari Passu Indebtedness, as applicable. To the extent that any Excess Proceeds remain after consummation of the 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 other Senior any such Pari Passu Indebtedness tendered (and electing to be redeemed or repaid, as applicable) pursuant to an Asset Sale Offer is less than exceeds the amount of Excess Asset Sale Proceeds, the Company and its Restricted Subsidiaries may use any remaining Excess Asset Sale Proceeds for general corporate purposes and any other purpose not prohibited by this IndentureTrustee shall select the Notes to be repurchased on a pro rata basis. Upon completion of the offer to purchasesuch Asset Sale Offer, the amount of Excess Asset Sale Proceeds shall 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 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, 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 the Company’s compliance with such securities laws or regulations.
Appears in 2 contracts
Samples: Indenture (Diamond Brands Inc), Indenture (Diamond Brands Operating Corp)
Asset Sales. (a) The Company will not, and will not permit any of its Restricted Subsidiaries to, consummate an Asset Sale unless:
(1) the Company (or the Restricted Subsidiary, as the case may be, ) receives consideration at the time of the Asset Sale at least equal to the Fair Market Value (measured as of the date of the definitive agreement with respect to such Asset Sale) of the assets or Equity Interests issued or sold or otherwise disposed of; and
(2) at least 75% of the consideration received in such the Asset Sale by the Company or such Restricted Subsidiary is in the form of cash or Cash Equivalents; provided that any . For purposes of this provision, each of the following items shall will be deemed to be cash and Cash Equivalents for the purposes of this clause (2):cash:
(aA) the assumption of any liabilities (liabilities, as shown on the Company’s or the Restricted Subsidiary’s most recent consolidated balance sheet) , of the Company or any Restricted Subsidiary of the Company (other than contingent liabilities and liabilities that are by their terms unsecured or subordinated in right of payment or as to Lien priority to the Notes issued under this Indenture or any Subsidiary Note Guarantee) that are assumed by the transferee of any such assets pursuant to a customary novation agreement that releases the Company or the such Restricted Subsidiary from further liability;
(bB) any securities, notes or other obligations received by the Company or any such Restricted Subsidiary from such transferee that are within 180 days after such Asset Sale, converted by the Company or the such Restricted Subsidiary into cash or Cash Equivalents within 180 days following their receipt (cash, to the extent of the cash or Cash Equivalents received); andreceived in that conversion;
(cC) any stock or assets of the kind referred to in clauses Section 4.10(b)(2) or (4) hereof; and
(D) any Designated Noncash Consideration received by the Company or any Restricted Subsidiary in such Asset Sale having an aggregate Fair Market Value, taken together with all other Designated Noncash Consideration received pursuant to this clause (D), not to exceed $5.0 million, with the Fair Market Value of each item of Designated Noncash Consideration being measured at the time received and without giving effect to subsequent changes in value.
(b) and (d) of the next paragraph of this Section 4.10. Within 365 360 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 Net Proceeds:
(1) (a) to repay Indebtedness and other Obligations under the Existing Indenture or the Senior Credit Facility and to correspondingly permanently reduce any revolving commitments with respect thereto and (b) in the case of an Asset Sale of the asset or property of a Foreign Restricted Subsidiary of the Company, to repay Indebtedness and other Obligations under the agreements governing Permitted Debt described in clause (16) of the definition thereof;
(2) to acquire all or substantially all of the assets of, or any Capital Stock of, another Person engaged in a Permitted Business, if, after giving effect to any such acquisition, the Permitted Business is or becomes a Restricted Subsidiary or a line of business of the Company;
(3) to make a capital expenditure;
(4) to acquire other assets that are not classified as current assets under GAAP and that are used or useful in a Permitted Business; and
(5) any combination of the foregoing; provided that in the case of clauses (2), (3) and (4) 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 Company or such Restricted Subsidiary, as the case may be, may apply enters into such commitment with the good faith expectation that such Net Proceeds, at its option:
(a) Proceeds will be applied to prepay, repay, purchase, repurchase or redeem any secured Indebtedness satisfy such commitment within 180 days of the Company or any Restricted Subsidiary of the Company;
(b) to acquire a controlling interest in another business or all or substantially all of the assets or operating line of another businesssuch commitment and, in each case engaged the event any such commitment is later cancelled or terminated for any reason before the Net Proceeds are applied in a Permitted Business;
(c) connection therewith, then such Net Proceeds must be applied as set forth herein or if such cancellation or termination occurs later than the 360-day period referred to make capital expenditures; or
(d) to acquire other non-current assets to be used in a Permitted Businessbelow, shall constitute Excess Proceeds. Pending the final application of any such Net Proceeds, the Company may temporarily reduce Indebtedness under any Credit Facility revolving credit borrowings or otherwise expend or invest such the Net Proceeds in any manner that is not prohibited by this Indenture. .
(c) Any Net Proceeds from Asset Sales described in this paragraph that are not applied or invested as provided in the first sentence of this second paragraph of this Section 4.10 shall be deemed to covenant will constitute “Excess Asset Sale Proceeds.” When Within 15 days after the aggregate amount of Excess Asset Sale Proceeds exceeds $10.0 12.5 million, the Company will be required under this Indenture to make an offer to the Holders of Notes issued thereunder and the holders of any other Senior Indebtedness that is subject to requirements with respect to the application of net proceeds from asset sales that are substantially similar to those contained in this Indenture (an “Asset Sale Offer”) to purchase on a pro rata basis (with the Excess Asset Sale Proceeds prorated between the all Holders of the Notes and such holders of such other Senior Indebtedness based upon outstanding aggregate principal amounts) to purchase the maximum principal amount of the Notes and such other Senior Indebtedness that may be purchased or prepaid, as applicable, out of with the prorated Excess Asset Sale Proceeds, at an . The offer price in cash in an amount any Asset Sale Offer will be equal to 100% of the principal amount thereof plus accrued and unpaid interest thereon interest, if any, to the date of purchase, and will be payable in accordance with cash. If any Excess Proceeds remain after consummation of an Asset Sale Offer, the procedures set forth in Company may use those Excess Proceeds for any purpose not otherwise prohibited by this Indenture. To the extent that If the aggregate principal amount of Notes tendered into such Asset Sale Offer exceeds the amount of Excess Proceeds, the Trustee will select the Notes to be purchased on a pro rata basis for definitive Notes but subject to the procedures of the Depositary for Global Notes. Upon completion of each Asset Sale Offer, the amount of Excess Proceeds will be reset at zero.
(d) The Asset Sale Offer will remain open for a period of at least 20 Business Days following its commencement and other Senior Indebtedness 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 or, if less than the Offer Amount has been tendered, all Notes tendered in response to the Asset Sale Offer. Payment for any Notes so purchased will be made in the same manner as interest payments are made. If the Purchase Date is on or after an interest record date and on or before the related interest payment date, any accrued and unpaid interest and premium, if any, will be paid to the Person in whose name a Note is registered at the close of business on such record date. Upon the commencement of an Asset Sale Offer, the Company will send, by first class mail, a notice to the Trustee and each of the Holders, which contains all instructions and materials necessary to enable such Holders to tender Notes pursuant to the Asset Sale Offer. The notice, which will govern the terms of the Asset Sale Offer, will state:
(1) that the Asset Sale Offer is being made pursuant to this Section 4.10 and the length of time the Asset Sale Offer will remain open;
(2) the Offer Amount, the purchase price and the Purchase Date;
(3) that any Note not tendered or accepted for payment will continue to accrue interest;
(4) that, unless the Company defaults in making such payment, any Note accepted for payment pursuant to the Asset Sale Offer will cease to accrue interest after the Purchase Date;
(5) that Holders electing to be redeemed or repaid, as applicable) have a Note purchased pursuant to an Asset Sale Offer may elect to have Notes purchased in integral multiples of $1.00 only; provided that no Notes in denominations of $2,000 or less may be redeemed or purchased in part, or if a PIK Payment has occurred, no Notes of $1.00 or less shall be redeemed or purchased in part;
(6) that Holders electing to have Notes purchased pursuant to any Asset Sale Offer will be required to surrender the Note, with the form entitled “Option of Holder to Elect Purchase” attached to the Notes completed, or transfer by book-entry transfer, to the Company, a Depositary, if appointed by the Company, or a Paying Agent at the address specified in the notice at least three days before the Purchase Date;
(7) that Holders will be entitled to withdraw their election if the Company, the Depositary or the Paying Agent, as the case may be, receives, not later than the expiration of the Offer Period, a telegram, facsimile transmission or letter setting forth the name of the Holder, the principal amount of the Note the Holder delivered for purchase and a statement that such Holder is withdrawing his election to have such Note purchased;
(8) that, if the aggregate principal amount of Notes surrendered by the Holders exceeds the Offer Amount, the Trustee will select the Notes to be purchased on a pro rata basis; and
(9) that Holders whose Notes were purchased only in part will be issued new Notes equal in principal amount to the unpurchased portion of the Notes surrendered (or transferred by book-entry transfer). On or before the Purchase Date, the Company will, to the 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 Excess 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, will authenticate and mail or deliver (or cause to be transferred by book entry) such new Note to such Holder, in a principal amount equal to any unpurchased portion of the Note surrendered. Any Note not so accepted shall be promptly mailed or delivered by the Company to the Holder thereof. The Company will publicly announce the results of the Asset Sale ProceedsOffer on the Purchase Date. If less than all of the Notes are to be purchased in an Asset Sale Offer at any time, the Trustee will select Notes for purchase on a pro rata basis, by lot or other method in any case the Trustee considers appropriate, with respect to Global Notes, subject to the rules and procedures of the Depositary unless otherwise required by law or applicable stock exchange requirements, not less than 30 nor more than 60 days prior to the Purchase Date by the Trustee from the outstanding Notes not previously purchased. The Trustee will promptly notify the Company in writing of the Notes selected for purchase and, in the case of any Note selected for partial purchase, the principal amount thereof to be purchased. Notes and portions of Notes selected will be in amounts of $1,000 or whole multiples of $1.00; provided that if all of the Notes of a Holder are to be purchased, the entire outstanding amount of Notes held by such Holder shall be purchased; provided, further, that no Notes in denominations of $2,000 or less may be purchased in part or if a PIK Payment has occurred, no Notes of $1.00 or less shall be purchased in part. Except as provided in the preceding sentence, provisions of this Indenture that apply to Notes purchased also apply to portions of Notes purchased. No later than 10:00 a.m. Eastern time on the Purchase Date, the Company will deposit with the Trustee or with the Paying Agent money sufficient to pay the purchase price of and its Restricted Subsidiaries may use accrued interest or premium, if any, on all Notes to be purchased on that date. The Trustee or the Paying Agent will promptly return to the Company any remaining Excess Asset Sale Proceeds for general corporate purposes and any other purpose not prohibited money deposited with the Trustee or the Paying Agent by this Indenture. Upon completion the Company in excess of the offer amounts necessary to purchasepay the purchase price of, and accrued interest or premium, if any, on all Notes to be purchased. If the amount Company complies with the provisions of Excess Asset Sale Proceeds the preceding paragraph, on and after the Purchase Date, interest will cease to accrue on the Notes or the portions of Notes purchased. If a Note is purchased on or after an interest record date but on or prior to the related interest payment date, then any accrued and unpaid interest shall be reset paid to the Person in whose name such Note was registered at zerothe close of business on such record date. If any Note purchased is not so paid upon surrender for redemption or purchase because of the failure of the Company to comply with the preceding paragraph, interest shall be paid on the unpaid principal, from the redemption or purchase date until such principal is paid, and to the extent lawful on any interest not paid on such unpaid principal, in each case at the rate provided in the Notes and in Section 4.01 hereof.
(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 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 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 this Section 4.10 by virtue of the Company’s compliance with such securities laws or regulationscompliance.
Appears in 2 contracts
Samples: Indenture (A. M. Castle & Co.), Indenture (Total Plastics, Inc.)
Asset Sales. (a) The Company will not, and will not permit any of its Restricted Subsidiaries to, consummate an Asset Sale unless:
(1i) 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 (measured as of such Fair Market Value to be determined on the date of the definitive agreement with respect contractually agreeing to such Asset Sale) of the assets or Equity Interests issued or sold or otherwise disposed of; and
(2ii) other than in connection with an Aircraft Sale and Leaseback Transaction or a Designated Building and Equipment Transaction, at least 75% of the aggregate consideration received in from such Asset Sale and all other Asset Sales since the Closing Date, on a cumulative basis, by the Company or such Restricted Subsidiary is in the form of cash or cash, Cash Equivalents; provided that , Marketable Securities or Additional Assets, or any combination thereof. For purposes of this provision, each of the following items shall will be deemed to be cash and Cash Equivalents for the purposes of this clause (2):cash:
(aA) the assumption of any liabilities (as shown on the Company’s or the Restricted Subsidiary’s most recent balance sheet) of the Company or any Restricted Subsidiary Subsidiary, including novations of the Company aircraft contracts in connection with aircraft sale and leaseback transactions (other than contingent liabilities and liabilities that are by their terms subordinated to the Revolving Facility and the Senior Notes issued under this Indenture or any Subsidiary GuaranteeGuarantee in respect of the Revolving Facility or the Senior Notes) that are assumed by the transferee of any such assets pursuant to and as a customary novation agreement that releases result of which the Company or the such Restricted Subsidiary is released from further liability;
(bB) 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 the such Restricted Subsidiary into cash or Cash Equivalents within 180 days following their of the receipt (thereof, to the extent of the cash or Cash Equivalents receivedreceived in that conversion;
(C) any Designated Non-cash Consideration received by the Company or any of its Restricted Subsidiaries in such Asset Sale; provided that the aggregate Fair Market Value of such Designated Non-cash Consideration, taken together with the Fair Market Value at the time of receipt of all other Designated Non-cash Consideration received pursuant to this clause (c) less the amount of Net Proceeds previously realized in cash from prior Designated Non-cash Consideration is less than the greater of (x) 2.0% of Total Assets at the time of the receipt of such Designated Non-cash Consideration (with the Fair Market Value of each item of Designated Non-cash Consideration being measured at the time received and without giving effect to subsequent changes in value), and (y) $50.0 million; and
(cD) any stock Capital Stock or assets of the kind referred to in clauses paragraph (b)(i)(B) below.
(b) and (d) of the next paragraph of this Section 4.10. Within 365 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 ) may:
(i) apply such Net Proceeds, at its option:
(aA) to prepay(1) repay Loans (other than Swingline Loans) pursuant to Section 2.13(c) (and, repayin the case of repayment of Revolving Facility Loans, purchasecorrespondingly and permanently reduce commitments under the Revolving Facility) or (2) redeem or purchase Senior Notes, repurchase by way of optional redemption, open-market purchases (to the extent such purchases are at or redeem any secured Indebtedness above 100% of the principal amount thereof) or an “Asset Sale Offer” in accordance with the terms of the Senior Notes Indenture; or
(B) in reinvestment in the business of the Company or any Restricted Subsidiary of the Company;
and its Subsidiaries by (b1) to acquire a controlling interest in another business or acquiring all or substantially all of the assets of, or operating line any Capital Stock of, another Permitted Business (provided, that in the case of another businessany such acquisition of Capital Stock, in each case engaged such Person is or becomes a Restricted Subsidiary of the Company), (2) acquiring other short- or long-term assets that are not classified as current assets under GAAP and that are used or useful in a Permitted Business;
, or (c3) to make capital expenditures; or
investing in Additional Assets and Permitted Joint Ventures (d) to acquire other non-current assets to be used provided that any Investment in a Permitted Business. Pending Joint Venture (other than an Existing Permitted JV) pursuant to this clause (3) and paragraph (a)(ii)(D) above shall not, together with Investments outstanding pursuant to Clause (xix)(B) of the final application definition of any “Permitted Investments,” exceed the greater of $125.0 million or 5.0% of Total Assets at the time such Net ProceedsInvestment is made); provided, the Company may temporarily reduce Indebtedness under any Credit Facility or otherwise expend or invest such Net Proceeds in any manner that is not prohibited by this Indenture. Any Net Proceeds from Asset Sales described in of assets constituting Collateral reinvested pursuant to this paragraph (B) in assets or Capital Stock not constituting Collateral in any financial year shall not exceed the greater of $50,000,000 and 2% of Total Assets as at the start of such financial year; or
(ii) enter into a binding commitment to apply the Net Proceeds pursuant to paragraph (i) above, provided that are not applied or invested as provided in the first sentence of this paragraph of this Section 4.10 such binding commitment shall be deemed to constitute “Excess Asset Sale Proceeds.” When the aggregate amount of Excess Asset Sale Proceeds exceeds $10.0 million, the Company will be required under this Indenture to make an offer to the Holders of Notes issued thereunder and the holders of any other Senior Indebtedness that is subject to requirements with respect to the treated as a permitted application of net proceeds the Net Proceeds from asset sales that are substantially similar to those contained in this Indenture (an “Asset Sale Offer”) to purchase on a pro rata basis (with the Excess Asset Sale Proceeds prorated between the Holders of the Notes and such holders of such other Senior Indebtedness based upon outstanding aggregate principal amounts) the maximum principal amount of the Notes and such other Senior Indebtedness that may be purchased or prepaid, as applicable, out of the prorated Excess Asset Sale 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 purchasesuch commitment until the earlier of (x) the date on which such acquisition or expenditure is consummated, in accordance with and (y) the procedures set forth in this Indenture. To 180th day following the extent that the aggregate principal amount of Notes and other Senior Indebtedness tendered (and electing to be redeemed or repaid, as applicable) pursuant to an Asset Sale Offer is less than the Excess Asset Sale Proceeds, the Company and its Restricted Subsidiaries may use any remaining Excess Asset Sale Proceeds for general corporate purposes and any other purpose not prohibited by this Indenture. Upon completion expiration of the offer to purchase, the amount of Excess Asset Sale Proceeds shall 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 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, 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 the Company’s compliance with such securities laws or regulationsaforementioned 365 day period.
Appears in 2 contracts
Samples: Credit Agreement (CHC Group Ltd.), Credit Agreement (Integra Leasing As)
Asset Sales. (a) The Company will not, and will not permit any of its Restricted Subsidiaries to, consummate an Asset Sale unless:
(1) the Company (or the Restricted Subsidiary, as the case may be, ) receives consideration at the time of the Asset Sale at least equal to the Fair Market Value (measured as of the date of the definitive agreement with respect to such Asset Sale) of the assets assets, properties or Equity Interests issued or sold or otherwise disposed of;
(2) the Fair Market Value is set forth in an Officers' Certificate delivered to the Trustee; and
(23) at least 75% of the consideration received in such the Asset Sale by the Company or such Restricted Subsidiary is in the form of cash or cash, Cash Equivalents; provided that any , Liquid Securities or Permitted Assets. For purposes of this provision, each of the following items shall will be deemed to be cash and Cash Equivalents for the purposes of this clause (2):cash:
(ai) the assumption of any liabilities (liabilities, as shown on the Company’s 's or the such Restricted Subsidiary’s 's most recent balance sheet) , of the Company or any Restricted Subsidiary of the Company (other than contingent liabilities and liabilities that are by their terms subordinated to Notes issued under this Indenture the Notes, any Mirror Note, any Mirror Note Guarantee or any Subsidiary Guarantee) that are assumed by the transferee of any such assets pursuant to a customary novation agreement that releases the Company or the such Restricted Subsidiary from further liability;; and
(bii) any securities, notes or other obligations received by the Company or any such Restricted Subsidiary from such transferee that are contemporaneously, subject to ordinary settlement periods, converted by the Company or the such Restricted Subsidiary into cash or Cash Equivalents within 180 days following their receipt (cash, to the extent of the cash or Cash Equivalents received); andreceived in that conversion.
(c) any stock or assets of the kind referred to in clauses (b) and (d) of the next paragraph of this Section 4.10. Within 365 days after the receipt of any Net Cash Proceeds from an Asset Sale, the Company or the applicable Restricted Subsidiary, as the case may be, Subsidiary may apply such those Net Proceeds, at its optionCash Proceeds for any combination of the following purposes:
(a1) to prepay, repay, purchase, repurchase repay or redeem any secured prepay Indebtedness of the Company or any a Restricted Subsidiary of that is not subordinated to the CompanyNotes, any Mirror Note, any Mirror Note Guarantee or any Subsidiary Guarantee;
(b2) to acquire a controlling interest in another business or all or substantially all of the assets of, or operating line a majority of the Voting Stock of, another business, in each case engaged in a Permitted Oil and Gas Business;
(c3) to make a capital expendituresexpenditure; or
(d4) to acquire other nonlong-current term assets to be or properties that are used or useful in a Permitted the Oil and Gas Business. Pending the final application of any such Net Cash Proceeds, the Company may temporarily reduce Indebtedness under any Credit Facility revolving credit borrowings or otherwise expend or invest such the Net Cash Proceeds in any manner that is not prohibited by this Indenture. .
(c) Any Net Cash Proceeds from Asset Sales described in this paragraph that are not applied or invested as provided in the first sentence of this paragraph of this Section 4.10 shall be deemed to 4.10(b) will constitute “Excess Asset Sale Proceeds.” "EXCESS PROCEEDS". When the aggregate amount of Excess Asset Sale Proceeds exceeds $10.0 U.S.$10.0 million, the Company will be required under this Indenture to make an offer (an "ASSET SALE OFFER") to the all Holders of Notes issued thereunder and the all holders of any other Senior Indebtedness that is subject PARI PASSU with the Notes containing provisions similar to requirements those set forth in this Indenture with respect to the application of net proceeds from asset sales that are substantially similar to those contained in this Indenture (an “Asset Sale Offer”) offers to purchase on a pro rata basis (or redeem with the Excess Asset Sale Proceeds prorated between the Holders proceeds of the Notes and such holders sales of such other Senior Indebtedness based upon outstanding aggregate principal amounts) assets to purchase the maximum principal amount of the Notes and such other Senior PARI PASSU Indebtedness that may be purchased or prepaid, as applicable, out of the prorated Excess Asset Sale Proceeds, at an . The offer price in cash in an amount any Asset Sale Offer will be equal to 100% of the principal amount thereof plus accrued and unpaid interest thereon interest, if any, to the date of purchase, and will be payable in accordance with cash. If any Excess Proceeds remain after consummation of an Asset Sale Offer, the procedures set forth in Company may use those Excess Proceeds for any purpose not otherwise prohibited by this Indenture. To the extent that If the aggregate principal amount of Notes and other Senior PARI PASSU Indebtedness tendered (and electing to be redeemed or repaid, as applicable) pursuant to an into such Asset Sale Offer is less than exceeds the amount of Excess Asset Sale Proceeds, the Company Trustee will select the Notes and its Restricted Subsidiaries may use any remaining Excess Asset Sale Proceeds for general corporate purposes and any such other purpose not prohibited by this IndenturePARI PASSU Indebtedness to be purchased on a PRO RATA basis. Upon completion of the offer to purchaseeach Asset Sale Offer, the amount of Excess Asset Sale Proceeds shall 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 those laws and regulations are applicable in connection with each purchase 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 Section 4.10Indenture, 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 Section 4.10 Indenture by virtue of the Company’s compliance with such securities laws or regulationsconflict.
Appears in 2 contracts
Samples: Indenture (Paramount Resources LTD), Indenture (Paramount Resources LTD)
Asset Sales. The Company will shall not, and will shall not permit any of its Restricted Subsidiaries Subsidiary to, consummate an any Asset Sale unless:
Sale, unless (1i) the consideration received by the Company or the such Restricted Subsidiary, as the case may be, receives consideration at the time of the Asset Sale Subsidiary is at least equal to the Fair Market Value (measured as of the date of the definitive agreement with respect to such Asset Sale) fair market value of the assets or Equity Interests issued or sold or otherwise disposed of; and
of and (2ii) at least 75% of the consideration received in such Asset Sale is in the form of cash or Cash Equivalents; provided that any of the following items shall be deemed to be cash and Cash Equivalents for the purposes of this clause (2):
(a) the assumption of any excluding contingent liabilities (as shown on the Company’s or the Restricted Subsidiary’s most recent balance sheet) of the Company or any Restricted Subsidiary of the Company (other than liabilities that are by their terms subordinated to Notes issued under this Indenture or any Subsidiary Guarantee) assumed by the transferee of any such assets pursuant to a customary novation agreement that releases assets) received consists of cash or Temporary Cash Investments or the assumption of Senior Indebtedness of the Company or the Restricted a Subsidiary from further liability;
(b) any securitiesGuarantor, notes or other obligations received by provided that the Company or any such Restricted Subsidiary is irrevocably released from all liability under such transferee that are converted by the Company or the Restricted Subsidiary into cash or Cash Equivalents within 180 days following their receipt (to the extent of cash or Cash Equivalents received); and
(c) any stock or assets of the kind referred to in clauses (b) and (d) of the next paragraph of this Section 4.10Indebtedness. Within 365 360 days after the receipt of any Net Cash Proceeds from an Asset SaleSale (other than Barbary Excess Net Cash Proceeds), the Company shall or shall cause the relevant Restricted Subsidiary, as the case may be, may Subsidiary to (i)(A) apply an amount equal to such Net Proceeds, at its option:
(a) Cash Proceeds to prepay, repay, purchase, repurchase or redeem any secured permanently repay Senior Indebtedness of the Company or any Restricted a Subsidiary Guarantor or (B) invest an equal amount, or the amount not so applied pursuant to clause (A) (or enter into a definitive agreement committing to so invest within 12 months after the date of the Company;
(b) to acquire a controlling interest in another business or all or substantially all of the assets or operating line of another businesssuch agreement), in each case property or assets (other than current assets) of a nature or type or that are used in a business (or in Capital Stock of a company having property and assets of a nature or type, or engaged in a Permitted Business;
(cbusiness) similar or related to make capital expenditures; or
(d) to acquire other non-current the nature or type of the property and assets to be used in a Permitted Business. Pending of, or the final application of any such Net Proceedsbusiness of, the Company may temporarily reduce Indebtedness under any Credit Facility or otherwise expend or invest and its Restricted Subsidiaries existing on the date of such investment and (ii) apply (no later than the end of the 12-month period referred to in clause (i)) such excess Net Cash Proceeds in any manner that is not prohibited by this Indenture. Any Net Proceeds from Asset Sales described in this paragraph that are (to the extent not applied or invested pursuant to clause (i)) as provided in the first sentence of this following paragraph of this Section 4.10 shall be deemed to constitute “Excess Asset Sale Proceeds.” When the aggregate subparagraph 8(b). The amount of Excess Asset Sale such excess Net Cash Proceeds exceeds $10.0 million, the Company will required to be required under this Indenture applied (or to make an offer be committed to the Holders of Notes issued thereunder and the holders of any other Senior Indebtedness that is subject to requirements with respect to the application of net proceeds from asset sales that are substantially similar to those contained in this Indenture (an “Asset Sale Offer”be applied) to purchase on a pro rata basis (with the Excess Asset Sale Proceeds prorated between the Holders of the Notes and during such holders of such other Senior Indebtedness based upon outstanding aggregate principal amounts) the maximum principal amount of the Notes and such other Senior Indebtedness that may be purchased or prepaid, 12-month period as applicable, out of the prorated Excess Asset Sale 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. To clause (i) of the extent that preceding sentence and not applied as so required by the aggregate principal amount end of Notes and other Senior Indebtedness tendered (and electing to be redeemed or repaid, as applicable) pursuant to an Asset Sale Offer is less than such period shall constitute "Excess Proceeds." Pending application of such Net Cash Proceeds by the Excess Asset Sale Proceedsend of the relevant period, the Company and its Restricted Subsidiaries may use such Net Cash Proceeds to temporarily repay revolving Indebtedness. If, as of the first day of any remaining calendar month, the aggregate amount of Excess Asset Sale Proceeds for general corporate purposes not theretofore subject to an Offer to Purchase pursuant to this subparagraph 8(b) totals at least $10.0 million, the Company must commence, not later than the fifteenth Business Day of such month, an Offer to Purchase to the Holders and, to the extent required by the terms of any Pari Passu Indebtedness, an Offer to Purchase to all holders of such Pari Passu Indebtedness, the maximum principal amount of Notes and any other purpose not prohibited such Pari Passu Indebtedness that may be purchased out of the Excess Proceeds, at an offer price equal to 100% of the principal amount thereof, plus, in each case, accrued and unpaid interest and Additional Interest, if any, to the Payment Date. If the aggregate principal amount of Notes and any such Pari Passu Indebtedness tendered by this Indentureholders thereof exceeds the amount of Excess Proceeds, the Notes and Pari Passu Indebtedness shall be purchased on a pro rata basis. Upon the completion of the offer any such Offers to purchasePurchase, the amount of Excess Asset Sale Proceeds shall 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 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, 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 the Company’s compliance with such securities laws or regulations.
Appears in 2 contracts
Samples: Indenture (Coast Resorts Inc), Second Supplemental Indenture (Coast Resorts Inc)
Asset Sales. (a) The Company will shall not, and will shall not cause or permit any of its Restricted Subsidiaries to, directly or indirectly, consummate an Asset Sale 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 (measured as of the date of the definitive agreement with respect to such Asset Sale) of the assets or Equity Interests issued or sold or otherwise disposed of; and
(2) at least 75% of the consideration received in such the Asset Sale by the Company or such Restricted Subsidiary is in the form of cash or Cash Equivalents; provided that any of the following items shall be deemed to be cash and cash, Cash Equivalents for or Replacement Assets or a combination thereof (which determination may be made by the Issuer, at its option, either (x) at the time such Asset Sale is approved by the Issuer’s Board of Directors or (y) at the time the Asset Sale is completed). For purposes of this clause (2):), each of the following will be deemed to be cash:
(aA) the assumption of any liabilities (liabilities, as shown recorded on the Company’s or the Restricted Subsidiary’s most recent balance sheet) sheet of the Company or any Restricted Subsidiary of the Company (other than contingent liabilities or liabilities that are by their terms subordinated to the Notes issued under this Indenture or any Subsidiary Guarantee) the Notes Guarantees), that are assumed by the transferee of any such assets pursuant to and as a customary novation agreement that releases result of which the Company and its Restricted Subsidiaries are no longer obligated with respect to such liabilities or the Restricted Subsidiary from are indemnified against further liabilityliabilities or that are otherwise retired or repaid;
(bB) any securities, notes or other obligations received by the Company or any such Restricted Subsidiary from such transferee that are converted by the Company or the such Restricted Subsidiary into cash or Cash Equivalents within 180 days following their receipt (the closing of the Asset Sale, to the extent of the cash or Cash Equivalents received); andreceived in that conversion;
(cC) any stock Capital Stock or assets of the kind referred to in clauses Section 4.09(b)(2) or (4);
(D) Indebtedness (other than Indebtedness that is by its terms subordinated to the Notes or the Notes Guarantees) of any Restricted Subsidiary that is no longer a Restricted Subsidiary as a result of such Asset Sale, to the extent that Carnival plc and each other Restricted Subsidiary are released from any Guarantee of such Indebtedness in connection with such Asset Sale;
(E) consideration consisting of Indebtedness of the Company or any Guarantor received from Persons who are not the Company or any Restricted Subsidiary; and
(F) consideration other than cash, Cash Equivalents or Replacement Assets received by the Company or any Restricted Subsidiary in Asset Sales with a Fair Market Value not exceeding $250.0 million in the aggregate outstanding at any one time.
(b) and (d) of the next paragraph of this Section 4.10. Within 365 450 days after the receipt of any Net Proceeds from an Asset SaleSale or any Event of Loss, the Company (or the applicable Restricted Subsidiary, as the case may be, ) may apply such Net Proceeds, at its option:
(a1) to prepay, repay, purchase, repurchase or redeem any secured Indebtedness the Notes pursuant to an offer to all Holders at a purchase price equal to 100% of the Company or any Restricted Subsidiary principal amount thereof, plus accrued and unpaid interest to (but not including) the date of the Companypurchase (a “Notes Offer”);
(b2) to acquire a controlling interest in another business or all or substantially all of the assets of, or operating line any Capital Stock of, another Permitted Business; provided that after giving effect to any such acquisition of another businessCapital Stock, in each case engaged the Permitted Business is or becomes a Restricted Subsidiary;
(3) to make a capital expenditure;
(4) to acquire other assets (other than Capital Stock) not classified as current assets under GAAP that are used or useful in a Permitted Business;
(5) to repurchase, prepay, redeem or repay Indebtedness (a) of the Company or a Restricted Subsidiary that is secured by a Lien; provided that in connection with any repurchase, prepayment, redemption or repayment of revolving credit Indebtedness pursuant to this clause (a), the Company or such Restricted Subsidiary will retire such Indebtedness and will cause the related commitment to be permanently reduced in an amount equal to the principal amount so repurchased, prepaid, redeemed or repaid, (b) of a Restricted Subsidiary which is not a Guarantor (other than Indebtedness owed to the Company or a Restricted Subsidiary) or (c) of the Issuer or a Guarantor which is unsecured and which is pari passu with or senior in right of payment to make capital expendituresthe Notes or any Note Guarantee; provided that, in the case of this clause (c), the Company (or the applicable Restricted Subsidiary) may repurchase, prepay, redeem or repay such pari passu Indebtedness only if the Company (or the applicable Restricted Subsidiary) makes an offer to all Holders to purchase their Notes in accordance with the provisions set forth below for an Asset Sale Offer for an aggregate principal amount of Notes at least equal to the proportion that (x) the total aggregate principal amount of Notes outstanding bears to (y) the sum of the total aggregate principal amount of Notes outstanding plus the total aggregate principal amount outstanding of such pari passu Indebtedness;
(6) to enter into a binding commitment to apply the Net Proceeds pursuant to clause (2), (3) or (4) of this Section 4.09(b); provided that such binding commitment (or any subsequent commitments replacing the initial commitment that may be cancelled or terminated) shall be treated as a permitted application of the 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 450 day period; or
(d7) to acquire other non-current assets to be used in a Permitted Businessany combination of the foregoing. Pending the final application of any such Net Proceeds, the Company (or the applicable Restricted Subsidiary) may temporarily reduce Indebtedness borrowings under any Credit Facility revolving credit facility, or otherwise expend or invest such the Net Proceeds in any manner that is not prohibited by this Indenture. .
(c) Any Net Proceeds from Asset Sales described in this paragraph or an Event of Loss that are not applied or invested as provided in the first sentence Section 4.09(b) (it being understood that any portion of this paragraph of this such Net Proceeds used to make an offer to purchase Notes as described in Section 4.10 4.09(b)(1) or (5) above shall be deemed to have been applied or invested whether or not such Notes Offer is accepted) will constitute “Excess Asset Sale Proceeds.” When the aggregate amount of Excess Asset Sale Proceeds exceeds $10.0 million250.0 million (or at an earlier time, at the option of the Issuer), within ten Business Days thereof, the Company will be required under this Indenture to make an offer to the Holders of Notes issued thereunder and the holders of any other Senior Indebtedness that is subject to requirements with respect to the application of net proceeds from asset sales that are substantially similar to those contained in this Indenture (an “Asset Sale Offer”) to purchase on a pro rata basis (all Holders and may make an offer to all holders of other unsecured Indebtedness that is pari passu in right of payment with the Excess Asset Sale Proceeds prorated between Notes or any Note Guarantees with respect to offers to purchase, prepay or redeem with the Holders proceeds of the Notes and such holders sales of such other Senior Indebtedness based upon outstanding aggregate principal amounts) assets or events of loss to purchase, prepay or redeem the maximum principal amount of the Notes and such other Senior 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 purchased, prepaid or prepaid, as applicable, redeemed out of the prorated Excess Proceeds. The offer price for the Notes in any Asset Sale Proceeds, at an offer price in cash in an amount Offer will be equal to 100% of the principal amount thereof amount, plus accrued and unpaid interest thereon and Additional Amounts, if any, to the date of purchase, prepayment or redemption, subject to the right of Holders on the relevant Record Date to receive interest due on the relevant interest payment date, and will be payable in accordance with cash. If any Excess Proceeds remain after consummation of an Asset Sale Offer, the procedures set forth in Company or a Restricted Subsidiary may use those Excess Proceeds for any purpose not otherwise prohibited by this Indenture. To the extent that If the aggregate principal amount of Notes and such other Senior pari passu Indebtedness tendered into (and electing or to be prepaid or redeemed or repaid, as applicablein connection with) pursuant to an such Asset Sale Offer is less than exceeds the amount of Excess Asset Sale Proceeds, or if the Company aggregate amount of Notes tendered pursuant to a Notes Offer exceeds the amount of the Net Proceeds so applied, the Trustee will select the Notes and its Restricted Subsidiaries may use any remaining Excess Asset Sale Proceeds for general corporate purposes and any such other purpose not prohibited by this Indenturepari passu Indebtedness, if applicable, to be purchased on a pro rata basis (or in the manner provided in Section 3.03), based on the amounts tendered or required to be prepaid or redeemed. Upon completion of the offer to purchaseeach Asset Sale Offer, the amount of Excess Asset Sale Proceeds shall will be reset at zero. The Company will comply with the requirements of Rule 14e-1 under the U.S. Exchange Act and any other securities laws and regulations thereunder (and rules of any exchange on which the Notes are then listed) to the extent such laws and those laws, regulations or rules are applicable in connection with each repurchase of Notes pursuant to an Asset Sale Offer or a Notes Offer. To the extent that the provisions of any securities laws or regulations or exchange rules conflict with the Asset Sale or Notes Offer provisions of this Section 4.10Indenture, the Company will comply with the applicable securities laws laws, regulations and regulations rules and will not be deemed to have breached its obligations under the Asset Sale or Notes Offer provisions of this Section 4.10 Indenture by virtue of the Company’s compliance with such securities laws or regulationscompliance.
Appears in 2 contracts
Asset Sales. The Company will shall not, and will shall not permit any of its Restricted Subsidiaries to, consummate an Asset Sale unless:
(1excluding for this purpose an Event of Loss) unless (a) the Company or the such Restricted Subsidiary, as the case may be, receives consideration at the time of the such Asset Sale at least equal to the Fair Market Value fair market value (measured as determined in accordance with the definition of such term, the date results of which determination shall be set forth in an Officers’ Certificate delivered to the definitive agreement with respect to such Asset SaleTrustee) of the assets properties, assets, rights or Equity Interests issued or sold or otherwise disposed of; and
of and (2b) at least 75% of the consideration therefor received in by the Company or such Asset Sale Restricted Subsidiary is in the form of cash or Cash Equivalents; provided provided, however, that any the amount of the following items shall be deemed to be cash and Cash Equivalents for the purposes of this clause (2):
(ai) the assumption of any liabilities (as shown on the Company’s or the such Restricted Subsidiary’s most recent balance sheet) of the Company or any such Restricted Subsidiary of the Company (other than contingent liabilities and liabilities that are by their terms subordinated to the Notes issued under this Indenture or any Subsidiary Guarantee) that are assumed by the transferee of any such assets assets, properties, rights or Equity Interests pursuant to a customary novation agreement that releases the Company or the such Restricted Subsidiary from further liability;
, (bii) Liquid Securities and (iii) any securities, notes or other obligations received by the Company or any such Restricted Subsidiary from such transferee that are converted within 180 days by the Company or the such Restricted Subsidiary into cash or Cash Equivalents within 180 days following their receipt (to the extent of the cash or received in that conversion) shall each be deemed to be Cash Equivalents received); and
(c) any stock or assets of the kind referred to in clauses (b) and (d) of the next paragraph for purposes of this Section 4.10. Within 365 days after the receipt of any Net Proceeds from an Asset SaleSale (including, without limitation, any Event of Loss), the Company or the any such Restricted Subsidiary, as the case may be, Subsidiary may apply such Net Proceeds, at its option:
Proceeds to (a) to prepay, repay, purchase, repurchase permanently repay all or redeem any portion of the principal of any secured Indebtedness (to the extent of the fair value of the assets collateralizing such Indebtedness, as determined by the Board of Directors) or (b) acquire (including by way of a purchase of assets or stock, merger, consolidation or otherwise) Productive Assets, provided that if the Company or any such Restricted Subsidiary enters into a binding agreement to acquire such Productive Assets within such 365-day period, but the consummation of the Company;
transactions under such agreement has not occurred within such 365-day period, and the agreement has not been terminated, then the 365-day period will be extended to 18 months to permit such consummation; provided further, however, if such consummation does not occur, or such agreement is terminated within such 18-month period, then the Company may apply, or cause such Restricted Subsidiary to apply, within 90 days after the end of the 18-month period or the effective date of such termination, whichever is earlier, such Net Proceeds as provided in clauses (a) and (b) to acquire a controlling interest in another business or all or substantially all of the assets or operating line of another business, in each case engaged in a Permitted Business;
(c) to make capital expenditures; or
(d) to acquire other non-current assets to be used in a Permitted Businessthis paragraph. Pending the final application of any such Net Proceeds, the Company or any such Restricted Subsidiary may temporarily reduce Indebtedness outstanding revolving credit borrowings, including borrowings under any the Credit Facility Facility, or otherwise expend or invest such Net Proceeds in any manner that is not prohibited by this Indenture. Any Net Proceeds from Asset Sales described in this paragraph that are not applied or invested as provided in the first sentence clauses (a) and (b) of this paragraph of this Section 4.10 shall be deemed to constitute “Excess Asset Sale Proceeds.” When Within 30 days of each date on which the aggregate amount of Excess Asset Sale Proceeds exceeds $10.0 million20,000,000, the Company will be required under this Indenture to make shall commence an offer to the Holders of Notes issued thereunder and the holders of any other Senior Indebtedness that is subject to requirements with respect to the application of net proceeds from asset sales that are substantially similar to those contained in this Indenture (an “Asset Sale Offer”) Offer pursuant to Section 3.09 hereof to purchase on a pro rata basis (with the Excess Asset Sale Proceeds prorated between the Holders of the Notes and such holders of such other Senior Indebtedness based upon outstanding aggregate principal amounts) the maximum principal amount of the Notes and such other Senior Indebtedness that may be purchased or prepaid, as applicable, out of the prorated Excess Asset Sale Proceeds, Proceeds at an offer price in cash in an amount equal to 100% of the principal amount thereof thereof, plus accrued and unpaid interest thereon interest, if any, thereon, to the date of purchase, in accordance with the procedures set forth in this IndentureSection 3.09 hereof; provided, however, that, if the Company is required to apply such Excess Proceeds to purchase, or to offer to purchase, any Pari Passu Indebtedness, the Company shall only be required to offer to purchase the maximum principal amount of Notes that may be purchased out of the amount of such Excess Proceeds multiplied by a fraction, the numerator of which is the aggregate principal amount of Notes outstanding and the denominator of which is the aggregate principal amount of Notes outstanding plus the aggregate principal amount of Pari Passu Indebtedness outstanding. To the extent that the aggregate principal amount of Notes and other Senior Indebtedness tendered (and electing to be redeemed or repaid, as applicable) pursuant to an Asset Sale Offer is less than the Excess Asset Sale Proceedsamount that the Company is required to purchase, the Company and its Restricted Subsidiaries may use any remaining Excess Asset Sale Proceeds for general corporate purposes and in any other purpose manner not prohibited by this Indenture. If the aggregate principal amount of Notes surrendered by Holders thereof exceeds the amount that the Company is required to purchase, the Trustee shall select the Notes to be purchased on a pro rata basis (with such adjustments as may be deemed appropriate by the Trustee so that only Notes in minimum denominations of $2,000 and integral multiples of $1,000 in excess thereof, shall be purchased). Upon completion of the such offer to purchase, the amount of Excess Asset Sale Proceeds shall be reset at zero. The Company will comply with shall not, and shall not permit any Restricted Subsidiary to, enter into or suffer to exist any agreement (other than any agreement governing the requirements Credit Facility) that would place any restriction of Rule 14e-1 under any kind (other than pursuant to law or regulation) on the Exchange Act and any other securities laws and regulations thereunder ability of the Company to the extent such laws and regulations are applicable in connection with make 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, 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 the Company’s compliance with such securities laws or regulations.
Appears in 2 contracts
Samples: Indenture (Hornbeck Offshore Services Inc /La), Indenture (Hornbeck Offshore Services Inc /La)
Asset Sales. The (a) RYAM and the Company will shall not, and will shall not permit any of its the Restricted Subsidiaries to, consummate cause or make an Asset Sale unless:
Sale, unless (1x) RYAM, the Company or the any Restricted Subsidiary, as the case may be, receives consideration at the time of the such Asset Sale at least equal to the Fair Market Value (measured as of determined in good faith by the date of the definitive agreement with respect to such Asset SaleCompany) of the assets or Equity Interests issued or sold or otherwise disposed of; and
, and (2y) at least 75% of the consideration therefor received in by RYAM, the Company or such Asset Sale Restricted Subsidiary, as the case may be, is in the form of cash or Cash Equivalents; provided that any of the following items shall be deemed to be cash and Cash Equivalents for the purposes of this clause (2):amount of:
(ai) the assumption of any liabilities (as shown on RYAM’s, the Company’s or the a Restricted Subsidiary’s most recent balance sheetsheet or in the notes thereto) of RYAM, the Company or any a Restricted Subsidiary of the Company (other than liabilities that are by their terms subordinated to the Notes issued under this Indenture or any Subsidiary Guarantee) that are assumed by the transferee of any such assets pursuant to a customary novation agreement or that releases are otherwise cancelled or terminated in connection with the Company or the Restricted Subsidiary from further liability;transaction with such transferee,
(bii) any securities, notes or other obligations or other securities or assets received by RYAM, the Company or any such Restricted Subsidiary from such transferee that are converted by RYAM, the Company or the such Restricted Subsidiary into cash or Cash Equivalents within 180 days following their of the receipt thereof (to the extent of the cash or Cash Equivalents received); ,
(iii) Indebtedness of any Restricted Subsidiary that is no longer a Restricted Subsidiary as a result of such Asset Sale, to the extent that RYAM, the Company and each other Restricted Subsidiary are released from any guarantee of payment of such Indebtedness in connection with the Asset Sale,
(iv) consideration consisting of Indebtedness of RYAM or the Company (other than Subordinated Indebtedness) received after the Issue Date from Persons who are not RYAM, the Company or any Restricted Subsidiary, and
(cv) any stock Designated Non-cash Consideration received by RYAM, the Company or assets any Restricted Subsidiary in such Asset Sale having an aggregate Fair Market Value (as determined in good faith by the Company), taken together with all other Designated Non-cash Consideration received pursuant to this Section 4.06(a)(v) that is at that time outstanding, not to exceed the greater of $100.0 million and 4.0% of Total Assets at the time of the kind referred receipt of such Designated Non-cash Consideration (with the Fair Market Value of each item of Designated Non-cash Consideration being measured at the time received and without giving effect to subsequent changes in clauses value), shall be deemed to be Cash Equivalents for the purposes of this Section 4.06(a).
(b) and (d) of the next paragraph of this Section 4.10. Within 365 days after RYAM’s, the Company’s or any Restricted Subsidiary’s receipt of any the Net Proceeds from an of any Asset Sale, RYAM, the Company or the such Restricted Subsidiary, as the case may be, Subsidiary may apply the Net Proceeds from such Net ProceedsAsset Sale, at its option:
(ai) to prepayrepay (A) Indebtedness constituting Bank Indebtedness and other Pari Passu Indebtedness that is secured by a Lien permitted under this Indenture (and, repayif the Indebtedness repaid is revolving credit Indebtedness, purchaseto correspondingly reduce commitments with respect thereto), repurchase or redeem any secured (B) Indebtedness of a Restricted Subsidiary that is not a Guarantor, (C) Obligations under the Notes or (D) other Pari Passu Indebtedness (provided that if RYAM, the Company or any Restricted Subsidiary Guarantor shall so reduce the Obligations under unsecured Pari Passu Indebtedness under this clause (D), the Company will equally and ratably reduce Notes Obligations pursuant to Section 3.01, through open-market purchases (provided that such purchases are at or above 100% of the Company;
principal amount thereof or, in the event that the Notes were issued with significant original issue discount, 100% of the accreted value thereof) or by making an offer (bin accordance with the procedures set forth below for an Asset Sale Offer) to acquire all holders to purchase at a controlling interest in another business or all or substantially all purchase price equal to 100% of the assets or operating line principal amount thereof (or, in the event that the Notes were issued with significant original issue discount, 100% of another businessthe accreted value thereof), plus accrued and unpaid interest on the pro rata principal amount of Notes), in each case engaged in a Permitted Business;
(c) other than Indebtedness owed to make capital expendituresRYAM, the Company or an Affiliate of the Company; or
(dii) to acquire other non-current assets to be make an investment in any one or more businesses (provided that if such investment is in the form of the acquisition of Capital Stock of a Person, such acquisition results in such Person becoming a Restricted Subsidiary of RYAM or the Company), assets, or property or capital expenditures, in each case (A) used or useful in a Permitted BusinessSimilar Business or (B) that replace the properties and assets that are the subject of such Asset Sale or to reimburse the cost of any of the foregoing incurred on or after the date on which the Asset Sale giving rise to such Net Proceeds was contractually committed. In the case of Section 4.06(b)(ii), a binding commitment shall be treated as a permitted application of the Net Proceeds from the date of such commitment until the 12-month anniversary of the date of the receipt of such Net Proceeds; provided that in the event such binding commitment is later canceled or terminated for any reason before such Net Proceeds are so applied, then such Net Proceeds shall constitute Excess Proceeds unless RYAM, the Company or such Restricted Subsidiary enters into another binding commitment (a “Second Commitment”) within six months of such cancellation or termination of the prior binding commitment; provided, further, that RYAM, the Company or such Restricted Subsidiary may only enter into a Second Commitment under the foregoing provision one time with respect to each Asset Sale and to the extent such Second Commitment is later cancelled or terminated for any reason before such Net Proceeds are applied or are not applied within 180 days of such Second Commitment, then such Net Proceeds shall constitute Excess Proceeds. Pending the final application of any such Net Proceeds, RYAM, the Company or such Restricted Subsidiary may temporarily reduce Indebtedness under any Credit Facility a revolving credit facility, if any, or otherwise expend or invest such Net Proceeds in any manner that is not prohibited by this Indenture. Any Net Proceeds from any Asset Sales described in this paragraph Sale that are not applied or invested as provided and within the time period set forth in the first sentence of this paragraph Section 4.06(b) (it being understood that any portion of such Net Proceeds used to make an offer to purchase Notes, as described in clause (i) of this Section 4.10 4.06(b), shall be deemed to have been invested whether or not such offer is accepted) will be deemed to constitute “Excess Asset Sale Proceeds.” When the aggregate amount of Excess Asset Sale Proceeds exceeds $10.0 125.0 million, the Company will be required under this Indenture to shall make an offer to the Holders all holders of Notes issued thereunder and (and, at the option of the Company, to holders of any other Senior Indebtedness that is subject to requirements with respect to the application of net proceeds from asset sales that are substantially similar to those contained in this Indenture Pari Passu Indebtedness) (an “Asset Sale Offer”) to purchase on a pro rata basis (with the Excess Asset Sale Proceeds prorated between the Holders of the Notes and such holders of such other Senior Indebtedness based upon outstanding aggregate principal amounts) the maximum principal amount of the Notes (and such other Senior Indebtedness Pari Passu Indebtedness), that is at least $2,000 and an integral multiple of $1,000 in excess thereof that may be purchased or prepaid, as applicable, out of the prorated Excess Asset Sale Proceeds, Proceeds at an offer price in cash in an amount equal to 100% of the principal amount thereof (or, in the event the Notes or other Pari Passu Indebtedness were issued with significant original issue discount, 100% of the accreted value thereof), plus accrued and unpaid interest thereon to (or, in respect of such other Pari Passu Indebtedness, such lesser price, if any, as may be provided for by the terms of such other Pari Passu Indebtedness), to, but excluding, the date fixed for the closing of purchasesuch 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 (10) Business Days after the date that Excess Proceeds exceeds $125.0 million by mailing, or delivering electronically if held by the Depository, the notice required pursuant to the terms of this Indenture, with a copy to the Trustee. To the extent that the aggregate principal amount of Notes and other Senior Indebtedness tendered (and electing to be redeemed or repaid, as applicablesuch other Pari Passu Indebtedness) tendered pursuant to an Asset Sale Offer is less than the Excess Asset Sale Proceeds, the Company and its Restricted Subsidiaries may use any remaining Excess Asset Sale Proceeds for general corporate purposes and any other purpose that is not prohibited by this Indenture. If the aggregate principal amount of Notes (and such other Pari Passu Indebtedness) surrendered by holders thereof exceeds the amount of Excess Proceeds, the Trustee, upon receipt of notice from the Company of the aggregate principal amount to be selected, shall select the Notes to be purchased in the manner described in Section 4.06(e). Upon completion of the offer to purchaseany such Asset Sale Offer, the amount of Excess Asset Sale Proceeds shall be reset at zero. .
(c) 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 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 Section 4.10Indenture, the Company will comply with the applicable securities laws and regulations and will shall not be deemed to have breached its obligations under described in this Indenture by virtue thereof.
(d) Not later than the date upon which written notice of an Asset Sale Offer is delivered to the Trustee as provided above, the Company shall deliver to the Trustee an Officers’ Certificate as to (i) the amount of the Excess Proceeds, (ii) the allocation of the Net Proceeds from the Asset Sales pursuant to which such Asset Sale Offer is being made and (iii) the compliance of such allocation with the provisions of Section 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 Subsidiary is acting as the Paying Agent, segregate and hold in trust) an amount equal to the Excess Proceeds to be invested in Cash Equivalents, as directed in writing by the Company and to be held for payment in accordance with the provisions of this Section 4.10 by virtue 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 Notes or portions thereof that have been properly tendered to and are to be accepted by the Company’s . The Trustee (or the Paying Agent, if not the Trustee) shall, on the date of purchase, mail or deliver payment to each tendering holder in the amount of the purchase price. In the event that the Excess Proceeds delivered by the Company to the Trustee are greater than the purchase price of the Notes tendered, the Trustee shall deliver the excess to the Company immediately after the expiration of the Offer Period for application in accordance with this Section 4.06.
(e) Holders electing to have a Note purchased shall be required to surrender such Note, 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 Note which was delivered by the holder for purchase and a statement that such holder is withdrawing his election to have such Note purchased. If at the end of the Offer Period more Notes (and such other Pari Passu Indebtedness) are tendered pursuant to an Asset Sale Offer than the Company is required to purchase, selection of such Notes 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 laws Notes are listed (and the Company shall notify the Trustee of any such listing), or regulationsif such Notes are not so listed, on a pro rata basis to the extent practicable, by lot or by such other method as the Trustee shall deem fair and appropriate (and in such manner as complies with the requirements of the Depository, if applicable); provided that no Notes of $2,000 or less shall be purchased in part. Selection of such other Pari Passu Indebtedness shall be made pursuant to the terms of such other Pari Passu Indebtedness.
(f) Notices of an Asset Sale Offer shall be mailed by the Company by first class mail, postage prepaid, or delivered electronically if held by the Depository, at least 30 but not more than 60 days before the purchase date to each holder of Notes at such holder’s registered address. If any Note is to be purchased in part only, any notice of purchase that relates to such Note shall state the portion of the principal amount thereof that has been or is to be purchased.
Appears in 2 contracts
Samples: Indenture (Rayonier Advanced Materials Inc.), Indenture (Rayonier Inc)
Asset Sales. (a) The Company will shall not, and will shall not permit any of its Restricted Subsidiaries to, consummate an Asset Sale unless:
unless (1i) the Company (or the Restricted Subsidiary, as the case may be, ) receives consideration at the time of the such Asset Sale at least equal to the Fair Market Value fair value (measured as evidenced by a resolution of the date Board of Directors set forth in an Officers' Certificate delivered to the definitive agreement with respect to such Asset SaleTrustee) of the assets or Equity Interests issued or sold or otherwise disposed of; and
of and (2ii) at least 7585% of the consideration therefor received in by the Company or such Asset Sale Restricted Subsidiary is in the form of cash or Cash Equivalentscash; provided that any the amount of the following items shall be deemed to be cash and Cash Equivalents for the purposes of this clause (2):
(ax) the assumption of any liabilities (as shown on the Company’s 's or the such Restricted Subsidiary’s 's most recent balance sheet) sheet or in notes thereto), of the Company or any Restricted Subsidiary of the Company (other than liabilities that are by their terms subordinated to the Notes issued under this Indenture or any Subsidiary Guaranteeguarantee thereof) that are assumed by the transferee of any such assets pursuant to a customary novation agreement that releases the Company or the Restricted Subsidiary from further liability;
and (by) any securities, notes or other obligations received by the Company or any such Restricted Subsidiary from such transferee that are contemporaneously (subject to ordinary settlement periods) converted by the Company or the such Restricted Subsidiary into cash or Cash Equivalents within 180 days following their receipt (to the extent of the cash or Cash Equivalents received), shall be deemed to be cash for purposes of this provision.
(b) Notwithstanding the foregoing, the Company and its Restricted Subsidiaries may engage in Asset Swaps (which shall not be deemed to be Asset Sales for purposes of this Section 4.10); andprovided that, immediately after giving effect to such Asset Swap, the Company would be permitted to incur at least $1.00 of additional Indebtedness pursuant to the Indebtedness to Adjusted Operating Cash Flow Ratio set forth in Section 4.09(a) hereof.
(c) any stock or assets of the kind referred to in clauses (b) and (d) of the next paragraph of this Section 4.10. Within 365 180 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 Net ProceedsSubsidiary may, at its option:
, apply such Net Proceeds (ai) to prepaypermanently reduce Indebtedness outstanding pursuant to any Bank Facility (and to permanently reduce the commitments thereunder by a corresponding amount), repay, purchase, repurchase or redeem any secured (ii) to permanently reduce Indebtedness of any of the Company's Restricted Subsidiaries or (iii) to the acquisition by the Company or any of its Restricted Subsidiaries of another business, the making of a capital expenditure or the acquisition of other long-term assets, in each case, in a Permitted Business; provided, however, that if the Company or any Restricted Subsidiary enters into a legally binding agreement with an entity that is not an Affiliate of the Company;
Company to reinvest such Net Proceeds in accordance with this clause (biii) within 180 days after the receipt thereof, the provisions of this Section 4.10 will be satisfied so long as such binding agreement is consummated within one year after the receipt of such Net Proceeds. If any such legally binding agreement to acquire a controlling interest reinvest such Net Proceeds is terminated, then the Company may, within 360 days of such Asset Sale, apply such Net Proceeds as provided in another business clauses (i), (ii) or all or substantially all of (iii) above (without regard to the assets or operating line of another business, proviso contained in each case engaged in a Permitted Business;
clause (ciii) to make capital expenditures; or
(d) to acquire other non-current assets to be used in a Permitted Businessabove). Pending the final application of any such Net Proceeds, the Company or the applicable Restricted Subsidiary may temporarily reduce Indebtedness under pursuant to any Credit Bank Facility or otherwise expend or invest such Net Proceeds in any manner that is not prohibited by this Indenture. A reduction of Indebtedness pursuant to any Bank Facility is not "permanent" for purposes of clause (i) of this Section 4.10(c) if an amount equal to the amount of such reduction is reborrowed and used to make an acquisition described in clause (iii) of this Section 4.10(c) within the time period specified in this Section 4.10. Any Net Proceeds from Asset Sales described in this paragraph that are not applied or invested as provided in the first sentence of this paragraph of this Section 4.10 shall 4.10(c) will be deemed to constitute “"Excess Asset Sale Proceeds.” When "
(d) Within five days of each date on which the aggregate amount of Excess Asset Sale Proceeds exceeds $10.0 million, the Company will be required under this Indenture to make an offer to all Holders of Notes and the Holders of Notes issued thereunder and the holders of any other Senior Indebtedness that is subject to requirements with respect Pari Passu Debt, to the application of net proceeds from asset sales that are substantially similar to those contained in this Indenture extent required by the terms thereof (an “"Asset Sale Offer”") to purchase on a pro rata basis (with the Excess Asset Sale Proceeds prorated between the Holders of the Notes and such holders of such other Senior Indebtedness based upon outstanding aggregate principal amounts) the maximum principal amount of the Notes and such other Senior Indebtedness Pari Passu Debt that may be purchased or prepaid, as applicable, out of the prorated Excess Asset Sale Proceeds, at an offer price in cash in an amount equal to 100% of the principal amount thereof plus plus, in each case, accrued and unpaid interest thereon interest, if any, to the date of purchase, in accordance with the procedures set forth in Section 3.09 or the agreements governing Pari Passu Debt, as applicable; provided, however, that the Company may only purchase Pari Passu Debt in an Asset Sale Offer that was issued pursuant to an indenture having a provision substantially similar to this Indenture. Section 4.10.
(e) To the extent that the aggregate principal amount of Notes and other Senior Indebtedness Pari Passu Debt tendered (and electing to be redeemed or repaid, as applicable) pursuant to an Asset Sale Offer is less than the Excess Asset Sale Proceeds, the Company and its Restricted Subsidiaries may use any remaining Excess Asset Sale Proceeds for general corporate purposes purposes.
(f) If the aggregate principal amount of Notes and any other purpose not prohibited by this Indenture. Pari Passu Debt surrendered exceeds the amount of Excess Proceeds, the Trustee shall select the Notes and Pari Passu Debt to be purchased on a pro rata basis, based upon the principal amount thereof surrendered in such Asset Sale Offer.
(g) Upon completion of the such offer to purchase, the amount of Excess Asset Sale Proceeds shall 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 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, 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 the Company’s compliance with such securities laws or regulations.
Appears in 2 contracts
Samples: Indenture (Pegasus Satellite Communications Inc), Indenture (Pegasus Communications Corp /)
Asset Sales. (a) The Company will not, and will not permit any of its Restricted Subsidiaries to, consummate an Asset Sale unless:
(1) other than in the case of an Event of Loss, 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 (measured as of the date of the definitive agreement with respect to such Asset Sale) of the assets or Equity Interests issued or sold or otherwise disposed ofof (as determined at the time the Company or the Restricted Subsidiary executes a binding agreement or otherwise becomes obligated to make such Asset Sale); and
(2) other than in the case of an Event of Loss, at least 75% of the consideration received in such the Asset Sale by the Company or such Restricted Subsidiary is in the form of cash or Cash Equivalents; provided that . For purposes of this provision (but not for purposes of determining the Net Proceeds from any Asset Sale), each of the following items shall will be deemed to be cash and Cash Equivalents for the purposes of this clause (2):cash:
(aA) the assumption of any liabilities (liabilities, as shown on the Company’s or the Restricted Subsidiary’s most recent consolidated balance sheet or as would be reflected on a balance sheet) , of the Company or any such Restricted Subsidiary of the Company (other than contingent liabilities and liabilities that are by their terms subordinated to the Notes issued under this Indenture or any Subsidiary Note Guarantee) that are assumed by the transferee of any such assets pursuant to a customary novation agreement that releases the Company or the such Restricted Subsidiary from further liability;
(bB) any securities, notes or other obligations received by the Company or any such Restricted Subsidiary from such transferee that are converted by the Company or the such Restricted Subsidiary into cash or Cash Equivalents within 180 90 days following after their receipt (receipt, to the extent of the cash or Cash Equivalents received)received in that conversion; and
(cC) any stock or assets of the kind referred to in clauses Sections 4.10(b)(2) or 4.10(b)(3).
(b) and (d) of the next paragraph of this Section 4.10. Within 365 days after the receipt of any Net Proceeds from an Asset SaleSale of Notes Priority Collateral, the Company (or the applicable Restricted Subsidiary, as the case may be, ) may apply such Net Proceeds, Proceeds at its option:
(a1) to prepay, repay, purchase, repurchase acquire all or redeem any secured Indebtedness substantially all of the Company 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;
(b2) (x) to acquire a controlling interest in another business other assets that are not classified as current assets under GAAP and that are used or all or substantially all of the assets or operating line of another business, in each case engaged useful in a Permitted Business;Business and will constitute Notes Priority Collateral and/or (y) to make expenditures for maintenance, repair or improvement of existing properties and assets; or
(3) in any combination of the applications described in the foregoing clauses (1) and (2).
(c) to make capital expenditures; or
(d) to acquire other non-current assets to be used in a Permitted Business. Pending the final application of any such Net ProceedsProceeds from an Asset Sale of Notes Priority Collateral, the Company (or the applicable Restricted Subsidiary) may temporarily reduce Indebtedness under any Credit Facility revolving credit borrowings or otherwise expend or invest such the Net Proceeds in any manner that is not prohibited by this Indenture. Cash Equivalents.
(d) Any Net Proceeds from Asset Sales described in this paragraph of Notes Priority Collateral that are not applied or invested as provided in Section 4.10(b) within 365 days after the first sentence receipt of this paragraph of this Section 4.10 shall be deemed to such Net Proceeds from such applicable Asset Sale will constitute “Excess Asset Sale Proceeds.” When the aggregate amount of Excess Asset Sale Proceeds exceeds $10.0 million, within 30 days thereof, the Company will be required under this Indenture to make an offer to the Holders of Notes issued thereunder and the holders of any other Senior Indebtedness that is subject to requirements with respect to the application of net proceeds from asset sales that are substantially similar to those contained in this Indenture (an “Asset Sale Offer”) to all Holders of Notes to repurchase all or any part (equal to $2,000 or integral multiples of $1,000 in excess thereof) of each Holder’s Notes at the purchase on a pro rata basis (with price described below; provided, however, that the Excess maximum aggregate price payable in any Asset Sale Proceeds prorated between the Holders Offer will not exceed such aggregate amount of Excess Proceeds. The purchase price with respect to the Notes and such holders of such other Senior Indebtedness based upon outstanding aggregate principal amounts) the maximum principal amount of the Notes and such other Senior Indebtedness that may be purchased or prepaid, as applicable, out of the prorated Excess in any Asset Sale Proceeds, at an offer price in cash in an amount Offer will be equal to 100% of the principal amount thereof amount, plus accrued and unpaid interest and Special Interest, if any, thereon to the date of purchase, subject to proration in accordance with Section 3.02 in the procedures set forth in this Indenture. To event of oversubscription and to the extent that the aggregate principal amount rights of Holders of Notes on the relevant regular record date to receive interest due on the relevant interest payment date that is on or prior to the applicable date of repurchase, and other Senior Indebtedness tendered (and electing to will be redeemed or repaid, as applicable) pursuant to payable in cash. If any Excess Proceeds remain after consummation of an Asset Sale Offer is less than the Excess Asset Sale ProceedsOffer, the Company and its Restricted Subsidiaries may use any remaining those Excess Asset Sale Proceeds for general corporate purposes and any other purpose not otherwise prohibited by this Indenture. Upon completion of the offer to purchaseeach Asset Sale Offer, the amount of Excess Asset Sale Proceeds shall will be reset at zero.
(e) In connection with any Asset Sale Offer, the Company will send a notice to each Holder, with a copy to the Trustee, describing the Asset Sale Offer and offering to repurchase Notes on the date for payment specified in the notice (the “Excess Proceeds Payment Date”), which date will be no earlier than 30 days and no later than 60 days from the date such notice is sent. 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 Excess Proceeds amount, the purchase price and the Excess Proceeds Payment 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 on the Excess Proceeds Payment Date;
(5) that Holders electing to have Notes purchased pursuant to any Asset Sale Offer will be required to surrender the Notes or transfer the Notes by book-entry transfer, to the Paying Agent at the address specified in the notice prior to the close of business on the third Business Day preceding the Excess Proceeds Payment Date;
(6) that Holders will be entitled to withdraw tenders of their Notes if the Paying Agent receives, not later than the close of business on the second Business Day preceding the Excess Proceeds Payment Date, a facsimile transmission or letter setting forth the name of the Holder, the principal amount of the Note the Holder tendered for purchase and a statement that such Holder is withdrawing its tender of such Notes; and
(7) that Holders whose Notes are purchased only in part will 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 in principal amount or an integral multiple of $1,000 in excess thereof. The Company will comply with the requirements of Rule 14e-1 under the Exchange Act and any other securities laws and regulations thereunder to the extent such laws and regulations are applicable in connection with the repurchase of Notes pursuant to an Asset Sale Offer. To the extent that the provisions of any securities laws or regulations conflict with the provisions of 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 this Section 4.10 by virtue thereof.
(f) On the Excess Proceeds Payment Date, the Company will to the extent lawful:
(1) accept for payment all Notes or portions of Notes properly tendered pursuant to the Asset Sale Offer and not withdrawn (subject to proration in accordance with Section 3.02 in the event of oversubscription);
(2) deposit with the Paying Agent no later than 10:00 a.m. Eastern Time an amount equal to the aggregate purchase price to be paid in such Asset Sale Offer in respect of Notes or portion of Notes properly tendered and not withdrawn; and
(3) deliver or cause to be delivered to the Trustee the Notes or portions of Notes properly accepted for payment together with an Officers’ Certificate stating the aggregate principal amount of Notes or portions of Notes being purchased.
(g) The Paying Agent will promptly mail or wire transfer to each Holder of Notes or portions of Notes properly tendered and not withdrawn the purchase price payable with respect to such Notes or portions of Notes, and the Trustee will properly authenticate and mail (or cause to be transferred by book entry) to each Holder a new Note equal in principal amount to any unpurchased portion of the Company’s compliance Notes surrendered. Any Note or portion of Note accepted for payment pursuant to an Asset Sale Offer will cease to accrue interest on and after the Excess Proceeds Payment Date. The Company will publicly announce the results of any Asset Sale Offer on or as soon as practicable after the Excess Proceeds Payment Date.
(h) The Company will not be required to make an Asset Sale Offer if notice of redemption for all of the then outstanding Notes has been given pursuant to Article 3, unless and until there is a default in payment of the applicable redemption price.
(i) The Company may combine any Excess Cash Flow Offer with such securities laws or regulationsany Asset Sale Offer provided that the requirements set forth in this Indenture with respect to both the Excess Cash Flow Offer and the Asset Sale Offer are satisfied.
Appears in 2 contracts
Samples: Indenture (Alon Refining Krotz Springs, Inc.), Indenture (Alon USA Energy, Inc.)
Asset Sales. The Company will shall not, and will shall not permit any of its Restricted Subsidiaries to, consummate an Asset Sale unless:
(1) the Company (or the Restricted Subsidiary, as the case may be, ) receives consideration at the time of the Asset Sale at least equal to the Fair Market Value (measured as of the date of the definitive agreement with respect to such Asset Sale) fair market value of the assets or Equity Interests issued or sold or otherwise disposed of;
(2) fair market value is determined by the 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 Tower Asset Exchange, at least 75% of the consideration received in such Asset Sale by the Company or such Restricted Subsidiary is in the form of cash or Cash Equivalents; provided that any . For purposes of this provision, each of the following items shall be deemed to be cash and Cash Equivalents for the purposes of this clause (2):cash:
(a) the assumption of any liabilities (liabilities, as shown on the Company’s 's or the such Restricted Subsidiary’s 's most recent balance sheet) , of the Company Company's or any Restricted Subsidiary of the Company (other than contingent liabilities and liabilities that are by their terms subordinated to the Notes issued under this Indenture or any Subsidiary Guaranteeguarantee of the Notes) that are assumed by the transferee of any such assets pursuant to a customary novation agreement that releases the Company or the Restricted Subsidiary from further liability;; and
(b) any securities, notes or other obligations received by the Company or any such Restricted Subsidiary from such the transferee that are converted by the Company or the Restricted Subsidiary into cash or Cash Equivalents within 180 20 days following their receipt (of the applicable Asset Sale, to the extent of the cash or Cash Equivalents received); and
(c) any stock or assets of the kind referred to received in clauses (b) and (d) of the next paragraph of this Section 4.10that conversion. Within 365 days after the receipt of any Net Proceeds from an Asset Sale, the Company or the Restricted Subsidiary, as the case may be, Subsidiary may apply such those Net Proceeds, at its optionProceeds to:
(a1) to prepay, repay, purchase, repurchase or redeem any secured reduce Indebtedness of the Company or any Restricted Subsidiary of the Companyunder a Credit Facility;
(b2) to acquire a controlling interest in another business or reduce other Indebtedness of any of the Restricted Subsidiaries;
(3) the acquisition of all or substantially all of the assets or operating line of another business, in each case engaged in a Permitted Business;
(c4) the acquisition of Voting Stock of a Permitted Business from a Person that is not a Subsidiary of the Company; provided that, after giving effect to make capital expendituresthe acquisition, the Company or its Restricted Subsidiary owns a majority of the Voting Stock of that business; or
(d5) to acquire the making of a capital expenditure or the acquisition of other nonlong-current term assets to be that are used or useful in a Permitted Business. Pending the final application of any such Net Proceeds, the Company may temporarily reduce Indebtedness under any Credit Facility revolving credit borrowings or otherwise expend or invest such the Net Proceeds in any manner that is not prohibited by this Indenture. Any Net Proceeds from Asset Sales described in this paragraph that are not applied or invested as provided in the first sentence of this preceding paragraph of this Section 4.10 shall be deemed to constitute “"Excess Asset Sale Proceeds.” ". When the aggregate amount of Excess Asset Sale Proceeds exceeds $10.0 million, the Company will be required under shall make an Asset Sale Offer to all Holders of Notes, and all holders of other senior Indebtedness of the Company containing provisions similar to those set forth in this Indenture to make an offer to the Holders of Notes issued thereunder and the holders of any other Senior Indebtedness that is subject to requirements with respect to the application of net proceeds from asset sales that are substantially similar to those contained in this Indenture (an “Asset Sale Offer”) offers to purchase on a pro rata basis (or redeem with the Excess Asset Sale Proceeds prorated between the Holders proceeds of the Notes and such holders sales of such other Senior Indebtedness based upon outstanding aggregate principal amounts) assets, to purchase the maximum principal amount of the Notes and such other Senior senior Indebtedness of the Company that may be purchased or prepaid, as applicable, out of the prorated Excess Asset Sale Proceeds, at an . The offer price in any Asset Sale Offer will be payable in cash in an amount equal to and will be 100% of the principal amount thereof of the Notes, plus accrued and unpaid interest thereon to the date of purchase, if any. In the case of any other senior Indebtedness, the offer price shall be 100% of the principal amount of the Indebtedness plus accrued and unpaid interest thereon, if any, to the date of purchase. Each Asset Sale Offer shall be made in accordance with the procedures set forth in this Indentureherein and the other senior Indebtedness of the Company. To the extent that the aggregate principal amount If any Excess Proceeds remain after consummation of Notes and other Senior Indebtedness tendered (and electing to be redeemed or repaid, as applicable) pursuant to an Asset Sale Offer is less than the Excess Asset Sale ProceedsOffer, the Company and its Restricted Subsidiaries may use any the remaining Excess Asset Sale Proceeds for general corporate purposes and any other purpose not otherwise prohibited by this Indenture. If the aggregate principal amount, as applicable, of Notes and the other senior Indebtedness of the Company tendered into the Asset Sale Offer exceeds the amount of Excess Proceeds, the Trustee shall select the Notes and such other senior Indebtedness to be purchased on a pro rata basis. Upon completion of the offer to purchaseAsset Sale Offer, the amount of Excess Asset Sale Proceeds shall 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 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, 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 the Company’s compliance with such securities laws or regulations.
Appears in 2 contracts
Samples: Indenture (Crown Castle International Corp), Indenture (Crown Castle International Corp)
Asset Sales. (a) The Company will shall not, and will shall not permit any of its Restricted Subsidiaries to, consummate an Asset Sale unless:
(1) the Company (or the Restricted Subsidiary, as the case may be, ) receives consideration at the time of the such Asset Sale at least equal to the Fair Market Value (measured as of the date of the definitive agreement with respect to such Asset Sale) of the assets or Equity Interests issued or sold or otherwise disposed of; provided that this clause (1) shall not apply to an Asset Sale resulting solely from a foreclosure or sale by a third party upon assets or property subject to a Lien not prohibited by this Indenture;
(2) where such Fair Market Value exceeds $100.0 million, the Company’s determination of such Fair Market Value is set forth in an Officers’ Certificate delivered to the Trustee; and
(23) at least 75% of the consideration therefor received in by the Company or such Asset Sale Restricted Subsidiary is in the form of cash cash, Cash Equivalents or Cash Equivalents; provided that any Replacement Assets or a combination thereof. For purposes of this provision, each of the following items shall be deemed to be cash and Cash Equivalents for the purposes of this clause (2):Equivalents:
(a) the assumption of A. any liabilities (as shown on the Company’s or the such Restricted Subsidiary’s most recent balance sheet, or would be shown on the Company’s or such Restricted Subsidiary’s balance sheet on the date of such Asset Sale) of the Company or any Restricted Subsidiary of the Company (other than liabilities contingent liabilities, Indebtedness that are is by their its terms subordinated to Notes issued under this Indenture the Securities of each series then Outstanding or any Subsidiary GuaranteeNote Guarantee and liabilities to the extent owed to the Company or any Affiliate of the Company) that are assumed by the transferee of any such assets pursuant to a customary novation written agreement that releases the Company or the such Restricted Subsidiary from further liability;liability therefor; and
(b) B. any securities, notes or other obligations received by the Company or any such Restricted Subsidiary from such transferee that are converted (including by way of any Monetization Transaction) by the Company or the such Restricted Subsidiary into cash or Cash Equivalents within 180 days following their receipt (to the extent of the cash or Cash Equivalents received); and
(creceived in that conversion) any stock or assets within 180 days of the kind referred to in clauses (b) and (d) of the next paragraph of this Section 4.10. Within 365 days after the receipt of any Net Proceeds from an such Asset Sale, the Company or the Restricted Subsidiary, as the case may be, may apply such Net Proceeds, at its option:
(a) to prepay, repay, purchase, repurchase or redeem any secured Indebtedness of the Company or any Restricted Subsidiary of the Company;.
(b) to acquire a controlling interest in another business The Company or all or substantially all any of its Restricted Subsidiaries may use the assets or operating line of another business, in each case engaged in a Permitted Business;
(c) to make capital expenditures; or
(d) to acquire other non-current assets to be used in a Permitted Business. Pending the final application Net Proceeds of any such Net Proceeds, the Company may temporarily reduce Indebtedness under any Credit Facility or otherwise expend or invest such Net Proceeds Asset Sale in any manner that is not prohibited by this Indenture. Any Net Proceeds from Asset Sales described in this paragraph that are not applied or invested as provided in the first sentence of this paragraph of this Section 4.10 shall be deemed to constitute “Excess Asset Sale Proceeds.” When the aggregate amount of Excess Asset Sale Proceeds exceeds $10.0 million, the Company will be required under this Indenture to make an offer to the Holders of Notes issued thereunder and the holders of any other Senior Indebtedness that is subject to requirements with respect to the application of net proceeds from asset sales that are substantially similar to those contained in this Indenture (an “Asset Sale Offer”) to purchase on a pro rata basis (with the Excess Asset Sale Proceeds prorated between the Holders of the Notes and such holders of such other Senior Indebtedness based upon outstanding aggregate principal amounts) the maximum principal amount of the Notes and such other Senior Indebtedness that may be purchased or prepaid, as applicable, out of the prorated Excess Asset Sale 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. To the extent that the aggregate principal amount of Notes and other Senior Indebtedness tendered (and electing to be redeemed or repaid, as applicable) pursuant to an Asset Sale Offer is less than the Excess Asset Sale Proceeds, the Company and its Restricted Subsidiaries may use any remaining Excess Asset Sale Proceeds for general corporate purposes and any other purpose not prohibited by this Indenture. Upon completion of the offer to purchase, the amount of Excess Asset Sale Proceeds shall 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 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, 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 the Company’s compliance with such securities laws or regulations.
Appears in 2 contracts
Samples: Indenture (AMC Networks Inc.), Indenture (WE TV Studios LLC)
Asset Sales. The Company will shall not, and will shall not permit any of its Restricted Subsidiaries to, consummate an Asset Sale unless:
unless (1i) the Company (or the Restricted Subsidiary, as the case may be, ) receives consideration at the time of the such Asset Sale at least equal to the Fair Market Value fair market value (measured as evidenced by a resolution of the date Board of Directors set forth in an Officers' Certificate delivered to the definitive agreement with respect to such Asset SaleTrustee) of the assets or Equity Interests issued or sold or otherwise disposed of; and
of and (2ii) at least 75% of the consideration therefor received in by the Company or such Asset Sale Restricted Subsidiary is in the form of cash or and Cash Equivalents; provided that any the amount of the following items shall be deemed to be cash and Cash Equivalents for the purposes of this clause (2):
(ax) the assumption of any liabilities (as shown on the Company’s 's or the such Restricted Subsidiary’s 's most recent balance sheet) ), of the Company or any Restricted Subsidiary of the Company (other than contingent liabilities and liabilities that are by their terms subordinated to the Notes issued under this Indenture or any Subsidiary Guaranteeguarantee thereof) that are assumed by the transferee of any such assets pursuant to a customary novation agreement that releases the Company or the such Restricted Subsidiary from further liability;
liability and (by) any securities, notes or other obligations 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 the such Restricted Subsidiary into cash or Cash Equivalents within 180 days following their receipt (to the extent of the cash or and Cash Equivalents received); and
(c) any stock or assets of the kind referred , shall be deemed to in clauses (b) and (d) of the next paragraph be cash for purposes of this Section 4.10provision. Within 365 360 days after the receipt of any Net Proceeds from an Asset Sale, the Company or the Restricted Subsidiary, as the case may be, may apply such Net Proceeds, at its option:
, (a) to prepay, repay, purchase, repurchase or redeem any secured Indebtedness repay Senior Debt of the Company or a Subsidiary Guarantor, (b) to the acquisition of a majority of the assets of, or a majority of the Voting Stock of, another Permitted Business, the making of a capital expenditure or the acquisition of other long-term assets that are used or useful in a Permitted Business or (c) to the acquisition by the Company or a Restricted Subsidiary of Equity Interests in any Restricted Subsidiary of the Company;
(b) to acquire , which Equity Interests are owned by a controlling interest in another business Person other than the Company or all or substantially all an Affiliate of the assets or operating line of another business, in each case engaged in a Permitted Business;
(c) to make capital expenditures; or
(d) to acquire other non-current assets to be used in a Permitted BusinessCompany. Pending the final application of any such Net Proceeds, the Company may temporarily reduce Indebtedness under any Credit Facility revolving credit borrowings or otherwise expend or invest such Net Proceeds in any manner that is not prohibited by this Indenture. Any Net Proceeds from Asset Sales described in this paragraph that are not applied or invested as provided in the first sentence of this paragraph of this Section 4.10 shall will be deemed to constitute “"Excess Asset Sale Proceeds.” " When the aggregate amount of Excess Asset Sale Proceeds exceeds $10.0 5.0 million, the Company will be required under this Indenture to make an offer to the all Holders of Notes issued thereunder and the all holders of any other Senior Indebtedness that is subject containing provisions similar to requirements those set forth in this Indenture with respect to offers to purchase or redeem with the application proceeds of net proceeds from asset sales that are substantially similar to those contained in this Indenture of assets (an “"Asset Sale Offer”") to purchase on a pro rata basis (with the Excess Asset Sale Proceeds prorated between the Holders of the Notes and such holders of such other Senior Indebtedness based upon outstanding aggregate principal amounts) the maximum principal amount of the Notes and such other Senior Indebtedness that may be purchased or prepaid, as applicable, out of the prorated Excess Asset Sale Proceeds, at an offer price in cash in an amount equal to 100% of the principal amount thereof plus accrued and unpaid interest thereon and Liquidated Damages thereon, if any, to the date of purchase, in accordance with the procedures set forth in this IndentureIndenture 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 Senior Indebtedness tendered (and electing to be redeemed or repaid, as applicable) pursuant to an into such Asset Sale Offer is less than surrendered by Holders thereof exceeds the amount of Excess Asset Sale Proceeds, the Company Trustee shall select the Notes and its Restricted Subsidiaries may use any remaining Excess Asset Sale Proceeds for general corporate purposes and any such other purpose not prohibited by this IndentureIndebtedness to be purchased on a pro rata basis. Upon completion of the such offer to purchase, the amount of Excess Asset Sale Proceeds shall 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 an Certain procedures regarding Asset Sale Offer. To the extent that the provisions of any securities laws or regulations conflict with the provisions of this Offers are set forth in 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 this Section 4.10 by virtue of the Company’s compliance with such securities laws or regulations3.09 hereof.
Appears in 2 contracts
Samples: Indenture (Sun Medical Technologies Inc /Ca/), Indenture (Prime Medical Services Inc /Tx/)
Asset Sales. The Company will shall not, and will shall not permit any of its Restricted Subsidiaries to, consummate an Asset Sale unless:
unless (1i) the Company or the such Restricted Subsidiary, as the case may be, receives consideration at the time of the such Asset Sale at least equal to the Fair Market Value fair market value (measured as evidenced by a resolution of the date Board of Directors set forth in an Officers' Certificate delivered to the definitive agreement with respect to such Asset SaleTrustee) of the assets or Equity Interests issued or sold or otherwise disposed of; and
of and (2ii) at least 75% of the consideration therefor received in by the Company or such Asset Sale Restricted Subsidiary is in the form of cash or Cash Equivalents; provided that any the amount of the following items shall be deemed to be cash and Cash Equivalents for the purposes of this clause (2):
(a) the assumption of any liabilities (as shown on the Company’s 's or the such Restricted Subsidiary’s 's most recent balance sheet) of the Company or any such Restricted Subsidiary of the Company (other than contingent liabilities and liabilities that are by their terms subordinated to the Notes issued under this Indenture or any Subsidiary GuaranteeNote Guarantee thereof) that are assumed by the transferee of any such assets pursuant to a customary novation agreement that releases the Company or the such Restricted Subsidiary from further liability;
liability and (b) any securities, notes or other obligations received by the Company or any such Restricted Subsidiary from such transferee that are immediately converted by the Company or the such Restricted Subsidiary into cash or Cash Equivalents within 180 days following their receipt (to the extent of the cash or Cash Equivalents received); and
(c) any stock or assets of the kind referred shall be deemed to in clauses (b) and (d) of the next paragraph be cash for purposes of this Section 4.10provision. Within 365 360 days after of the receipt of any Net Proceeds from an Asset Sale, the Company or the any of its Restricted Subsidiary, as the case may be, Subsidiaries may apply such Net Proceeds, at its option:
, (a) to prepay, repay, purchase, repurchase or redeem any secured Indebtedness repay Senior Debt of the Company or any of its Restricted Subsidiary Subsidiaries or to provide cash collateral with respect to any letters of credit outstanding under the Company;
Credit Facility and, in each case, to correspondingly reduce commitments with respect thereto in the case of revolving borrowings or (b) to acquire the acquisition of a controlling interest in another business or all or substantially all of the assets or operating line of another business, in each case engaged in the making of a Permitted Business;
(c) to make capital expenditures; or
(d) to acquire expenditure or the acquisition of other nonlong-current assets to be used in a Permitted Businessterm assets. Pending the final application of any such Net Proceeds, the Company may temporarily reduce Indebtedness under any Credit Facility Senior Debt or otherwise expend or invest such Net Proceeds in any manner that is not prohibited by this Indenture. Any Net Proceeds from Asset Sales described in this paragraph that are not applied or invested as provided in the first sentence of this paragraph of this Section 4.10 shall be deemed to constitute “"Excess Asset Sale Proceeds.” " When the aggregate amount of Excess Asset Sale Proceeds exceeds $10.0 5.0 million, the Company will shall be required under this Indenture to make an offer to the all Holders of Notes issued thereunder and the holders of any other Senior Indebtedness that is subject to requirements with respect to the application of net proceeds from asset sales that are substantially similar to those contained in this Indenture (an “"Asset Sale Offer”") to purchase on a pro rata basis (with the Excess Asset Sale Proceeds prorated between the Holders of the Notes and such holders of such other Senior Indebtedness based upon outstanding aggregate principal amounts) the maximum principal amount of the Notes and such other Senior Indebtedness that may be purchased or prepaid, as applicable, out of the prorated Excess Asset Sale Proceeds, Proceeds at an offer price in cash in an amount equal to 100% of the principal amount thereof thereof; plus accrued and unpaid interest and Liquidated Damages, if any, thereon to the date of purchase, in accordance with the procedures set forth in this Indenture. To the extent that the aggregate principal amount of Notes and other Senior Indebtedness tendered (and electing to be redeemed or repaid, as applicable) pursuant to an Asset Sale Offer is less than the Excess Asset Sale Proceeds, the Company and its Restricted Subsidiaries may use any remaining Excess Asset Sale Proceeds for general corporate purposes and any other purpose not prohibited purposes. If the aggregate principal amount of Notes surrendered by this IndentureHolders thereof exceeds the amount of Excess Proceeds, the Trustee shall select the Notes to be purchased on a pro rata basis. Upon completion of the offer to purchasean Asset Sale Offer, the amount of Excess Asset Sale Proceeds shall 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 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, 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 the Company’s compliance with such securities laws or regulations.
Appears in 2 contracts
Samples: Indenture (Holmes Products Corp), Indenture (Holmes Products Corp)
Asset Sales. The Company will shall not, and will shall not permit any of its Restricted Subsidiaries to, consummate an Asset Sale unless:
unless (1a) the Company or the such Restricted Subsidiary, as the case may be, receives consideration at the time of the such Asset Sale at least equal to the Fair Market Value fair market value (measured as determined in accordance with the definition of such term, the date results of which determination shall be set forth in an Officers' Certificate delivered to the definitive agreement with respect to such Asset SaleTrustee) of the assets or Equity Interests issued or sold or otherwise disposed of; and
of and (2b) at least 75% of the consideration therefor received in by the Company or such Asset Sale Restricted Subsidiary is in the form of cash or Cash Equivalents; provided provided, however, that any the amount of the following items shall be deemed to be cash and Cash Equivalents for the purposes of this clause (2):
(ai) the assumption of any liabilities (as shown on the Company’s 's or the such Restricted Subsidiary’s 's most recent balance sheet) of the Company or any such Restricted Subsidiary of the Company (other than contingent liabilities and liabilities that are by their terms subordinated to the Notes issued under this Indenture or any Subsidiary Guaranteeguarantee thereof) that are assumed by the transferee of any such assets pursuant to a customary novation agreement that releases the Company or the such Restricted Subsidiary from further liability;
liability and (bii) any securities, notes or other obligations received by the Company or any such Restricted Subsidiary from such transferee that are immediately converted by the Company or the such Restricted Subsidiary into cash or Cash Equivalents within 180 days following their receipt (to the extent of the cash or Cash Equivalents received); and
(c) any stock or assets of the kind referred shall be deemed to in clauses (b) and (d) of the next paragraph be cash for purposes of this Section 4.10. Within 365 days after the receipt of any Net Proceeds from an Asset Sale, the Company or the any such Restricted Subsidiary, as the case may be, Subsidiary may apply such Net Proceeds, at its option:
Proceeds to (a) to prepay, repay, purchase, repurchase or redeem permanently repay the principal of any secured Indebtedness (to the extent of the fair value of the assets securing such Indebtedness, as determined by the Board of Directors) or (b) to acquire (including by way of a purchase of assets or stock, merger, consolidation or otherwise) Productive Assets. (Any such Net Proceeds that are applied to the acquisition of Productive Assets pursuant to any binding agreement to construct any new marine vessel useful in the business of the Company or any of its Restricted Subsidiary Subsidiaries shall be deemed to have been applied for such purpose within such 365-day period so long as they are so applied within 18 months of the Company;
(beffective date of such agreement but no later than two years after the date of receipt of such Net Proceeds.) to acquire a controlling interest in another business or all or substantially all of the assets or operating line of another business, in each case engaged in a Permitted Business;
(c) to make capital expenditures; or
(d) to acquire other non-current assets to be used in a Permitted Business. Pending the final application of any such Net Proceeds, the Company or any such Restricted Subsidiary may temporarily reduce Indebtedness outstanding revolving credit borrowings, including borrowings under any the Credit Facility Facility, or otherwise expend or invest such Net Proceeds in any manner that is not prohibited by this Indenture, the Series A/B Indenture, the Series D Indenture and the Series F Indenture. Any Net Proceeds from Asset Sales described in this paragraph that are not applied or invested as provided in the first sentence of this paragraph of this Section 4.10 shall be deemed to constitute “"Excess Asset Sale Proceeds.” When " Within 30 days of each date on which the aggregate amount of Excess Asset Sale Proceeds exceeds $10.0 5.0 million, the Company will be required under this Indenture to make an offer to the Holders of Notes issued thereunder and the holders of any other Senior Indebtedness that is subject to requirements with respect to the application of net proceeds from asset sales that are substantially similar to those contained in this Indenture (an “Asset Sale Offer”) to purchase on shall commence a pro rata basis (with the Excess Asset Sale Proceeds prorated between the Holders of the Notes and such holders of such other Senior Indebtedness based upon outstanding aggregate principal amounts) Offer pursuant to Section 3.09 hereof to purchase the maximum principal amount of the Notes and such other Senior Indebtedness that may be purchased or prepaid, as applicable, out of the prorated Excess Asset Sale Proceeds, Proceeds at an offer price in cash in an amount equal to 100% of the principal amount thereof thereof, plus accrued and unpaid interest thereon interest, if any, thereon, to the date of purchase, in accordance with the procedures set forth in this IndentureSection 3.09 hereof; provided, however, that, if the Company is required to apply such Excess Proceeds to repurchase, or to offer to repurchase, any Pari Passu Indebtedness, the Company shall only be required to offer to repurchase the maximum principal amount of Notes that may be purchased out of the amount of such Excess Proceeds multiplied by a fraction, the numerator of which is the aggregate principal amount of Notes outstanding and the denominator of which is the aggregate principal amount of Notes outstanding plus the aggregate principal amount of Pari Passu Indebtedness outstanding. To the extent that the aggregate principal amount of Notes and other Senior Indebtedness tendered (and electing to be redeemed or repaid, as applicable) pursuant to an Asset Sale Offer is less than the Excess Asset Sale Proceedsamount that the Company is required to repurchase, the Company and its Restricted Subsidiaries may use any remaining Excess Asset Sale Proceeds for general corporate purposes and any other purpose not prohibited purposes. If the aggregate amount of Notes surrendered by this Indentureholders thereof exceeds the amount that the Company is required to repurchase, the Trustee shall select the Notes to be purchased on a pro rata basis (with such adjustments as may be deemed appropriate by the Trustee so that only Notes in denominations of $1,000, or integral multiples thereof, shall be purchased). Upon completion of the such offer to purchase, the amount of Excess Asset Sale Proceeds shall 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 an Asset Sale Offer. To the extent that the provisions of any securities laws or regulations conflict with the provisions For purposes of this Section 4.10paragraph only, the Company will comply with the applicable securities laws and regulations and will not any reference herein to "Notes" shall be deemed to have breached its obligations under this Section 4.10 by virtue of include the Company’s compliance with such securities laws or regulationsNotes and the Series A/B Notes, the Series D Notes and the Series F Notes.
Appears in 2 contracts
Samples: Indenture (Saevik Shipping As), Indenture (Trico Marine Services Inc)
Asset Sales. (a) The Company will shall not, and will shall not permit any of its Restricted Subsidiaries to, consummate to cause or make an Asset Sale unless:
Sale, unless (1x) the Company Company, or the its Restricted SubsidiarySubsidiaries, as the case may be, receives consideration at the time of the such Asset Sale at least equal to the Fair Market Value (measured as of determined in good faith by the date of the definitive agreement with respect to such Asset SaleCompany) of the assets or Equity Interests issued or sold or otherwise disposed of; and
of and (2y) except in the case of a Permitted Asset Swap, at least 75% of the consideration therefor received in by the Company, or such Asset Sale Restricted Subsidiary, as the case may be, is in the form of cash or Cash Equivalents; provided that any the amount of the following items shall be deemed to be cash and Cash Equivalents for the purposes of this clause (2):provision:
(ai) the assumption of any liabilities (as shown on the Company’s or the such Restricted Subsidiary’s most recent balance sheetsheet or in the notes thereto) of the Company or any Restricted Subsidiary of the Company (other than liabilities that are by their terms subordinated to Notes issued under this Indenture or any Subsidiary Guaranteethe Notes) that are assumed by the transferee of any such assets pursuant to a customary novation agreement that releases the Company or the Restricted Subsidiary from further liabilityassets;
(bii) any securities, notes or other obligations or other securities received by the Company or any such Restricted Subsidiary from such transferee that are converted by the Company or the such Restricted Subsidiary into cash or Cash Equivalents within 180 days following their of the receipt thereof (to the extent of cash or the Cash Equivalents received); and
(ciii) any stock Designated Noncash Consideration received by the Company or assets any of its Restricted Subsidiaries in such Asset Sale having an aggregate Fair Market Value, taken together with all other Designated Noncash Consideration received pursuant to this clause that is at that time outstanding, not to exceed the kind referred greater of 7.5% of Tangible Assets or $5.0 million (with the Fair Market Value of each item of Designated Noncash Consideration being measured at the time received and without giving effect to subsequent changes in clauses value).
(b) and (d) of the next paragraph of this Section 4.10. Within 365 days after the Company’s or any Restricted Subsidiary’s receipt of any the Net Proceeds from an of any Asset Sale, the Company or such Restricted Subsidiary may apply the Net Proceeds from such Asset Sale, at its option to:
(i) permanently reduce Obligations under the Credit Agreement (and, in the case of revolving Obligations, to temporarily reduce such Obligations) or other Senior Indebtedness or Pari Passu Indebtedness (provided that if the Company shall so reduce Obligations under Pari Passu Indebtedness, it will equally and ratably reduce Obligations under the Notes by making an offer (in accordance with the procedures set forth below for an Asset Sale Offer) to all Holders to purchase at a purchase price equal to 100% of the principal amount thereof, plus accrued and unpaid interest, if any, the pro rata principal amount of Notes) or Indebtedness of a Restricted Subsidiary, as the in each case may be, may apply such Net Proceeds, at its option:
(a) other than Indebtedness owed to prepay, repay, purchase, repurchase or redeem any secured Indebtedness of the Company or any Restricted Subsidiary an Affiliate of the Company;
(bii) to acquire a controlling interest make an investment in another business any one or all more businesses, capital expenditures or substantially all acquisitions of the other assets or operating line of another business, in each case engaged used or useful in a Permitted 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
(ciii) to make capital expenditures; or
(d) to acquire other non-current an investment in properties or assets to be used that replace the properties and assets that are the subject of such Asset Sale, or set aside in respect of a Permitted Businessproject 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 any Credit Facility a revolving credit facility, if any, or otherwise expend or invest such Net Proceeds in any manner that is not prohibited by this IndentureCash Equivalents or Investment Grade Securities. Any Net Proceeds from any Asset Sales described in this paragraph Sale that are not applied or invested as provided and within the time period set forth in the first sentence of this paragraph of this Section 4.10 shall will be deemed to constitute “Excess Asset Sale Proceeds.” When the aggregate amount of Excess Asset Sale Proceeds exceeds $10.0 million, the Company will be required under this Indenture to shall make an offer to the all Holders of Notes issued thereunder and the holders of any other Senior Indebtedness that is subject to requirements with respect to the application of net proceeds from asset sales that are substantially similar to those contained in this Indenture (an “Asset Sale Offer”) to purchase on a pro rata basis (with the Excess Asset Sale Proceeds prorated between the Holders of the Notes and such holders of such other Senior Indebtedness based upon outstanding aggregate principal amounts) the maximum principal amount of the Notes and such other Senior Indebtedness that may be purchased or prepaid, as applicable, out of the prorated Excess Asset Sale Proceeds, Proceeds at an offer price in cash in an amount equal to 100% of the principal amount thereof thereof, plus accrued and unpaid interest thereon interest, if any, to but not including the date fixed for the closing of purchasesuch 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 principal amount of Notes and other Senior Indebtedness tendered (and electing to be redeemed or repaid, as applicable) pursuant to an Asset Sale Offer is less than the Excess Asset Sale Proceeds, the Company and its Restricted Subsidiaries may use any remaining Excess Asset Sale Proceeds for general corporate purposes and any other purpose not prohibited purposes. If the aggregate principal amount of Notes surrendered by this IndentureHolders thereof exceeds the amount of Excess Proceeds, the Trustee shall select the Notes to be purchased pursuant to Section 4.06(c)(3). Upon completion of the offer to purchaseany such Asset Sale Offer, the amount of Excess Asset Sale Proceeds shall be reset at zero.
(1) Promptly, and in any event within ten Business Days after the Company becomes obligated to make an 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 (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 Note is to be purchased in part only, any notice of purchase that relates to such Note shall state the portion of the principal amount thereof that has been or is to be purchased.
(2) 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 is acting as its own paying agent, segregate and hold in trust) an amount equal to the Excess Proceeds to be invested in Cash Equivalents selected 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 Offer remains open (the “Offer Period”), the Company shall deliver to the Trustee for cancellation the Notes or portions thereof that have been properly tendered to and are to be accepted by the Company. The Trustee (or the Paying Agent, if not the Trustee) shall, on the date of purchase, mail or deliver payment to each tendering Holder in the amount of the purchase price. In the event that the Excess Proceeds delivered by the Company to the Trustee is greater than the purchase price of the Notes 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(b) above.
(3) Holders electing to have a Note purchased shall be required to surrender the Note, 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 Note which was delivered by the Holder for purchase and a statement that such Holder is withdrawing his election to have such Note purchased. If at the expiration of the Offer Period more Notes are tendered pursuant to an Asset Sale Offer than the Company is required to purchase, selection of such Notes for purchase shall be made by the Trustee in compliance with the requirements of the principal national securities exchange, if any, on which such Notes are listed, or if such Notes 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). A new Note in principal amount equal to the unpurchased portion of any Note purchased in part will be issued in the name of the Holder thereof upon cancellation of the original Note. On and after the purchase date, unless the Company defaults in payment of the purchase price, interest shall cease to accrue on Notes or portions thereof purchased.
(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 such laws and 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 Section 4.10Indenture, the Company will shall comply with the applicable securities laws and regulations and will shall not be deemed to have breached its obligations under described in this Section 4.10 Indenture by virtue of the Company’s compliance with such securities laws or regulationsthereof.
Appears in 2 contracts
Samples: Indenture (Otelco Inc.), Indenture (Otelco Telecommunications LLC)
Asset Sales. The Parent and the Company will not, and will not permit any of its their Restricted Subsidiaries to, consummate an Asset Sale unless:
(1) the Parent, 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 (measured as of the date of the definitive agreement with respect to such Asset Sale) of the assets or Equity Interests issued or sold or otherwise disposed of; and
(2) at least 75% of the consideration received in such the Asset Sale by the Company or such Restricted Subsidiary is in the form of cash or Cash Equivalents; provided that any Equivalents or a combination of the foregoing. For purposes of this provision (and not for the purpose of the definition of Net Proceeds) each of the following items shall will be deemed to be cash and Cash Equivalents for the purposes of this clause (2):cash:
(aA) the assumption of any liabilities (liabilities, as shown on the Company’s or the Restricted SubsidiaryParent’s most recent consolidated balance sheet) , of the Parent, the Company or any Restricted Subsidiary of the Company (other than contingent liabilities and liabilities that are by their terms subordinated to the Notes issued under this Indenture or any Subsidiary Note Guarantee) that are assumed by the transferee of any such assets pursuant to a customary novation agreement that releases the Parent, the Company or the such Restricted Subsidiary from further liability;
(bB) any securities, notes or other obligations received by the Parent, the Company or any such Restricted Subsidiary from such transferee that are converted within 90 days of such Asset Sale by the Parent, the Company or the such Restricted Subsidiary into cash or Cash Equivalents within 180 days following their receipt (cash, to the extent of the cash or Cash Equivalents received)received in that conversion; and
(cC) any stock or assets of the kind referred to in clauses (b2) and or (d4) of the next paragraph of this Section 4.10.
(3) if such Asset Sale involves the transfer of Collateral:
(A) such Asset Sale complies with the applicable provisions of the Collateral Documents; and
(B) to the extent required by the Collateral Documents, all consideration (including Cash Equivalents) received in such Asset Sale shall be expressly made subject to Liens under the Collateral Documents. Within 365 180 days after the receipt of any Net Proceeds from an Asset Sale, the Net Proceeds resulting from which causes the Parent, the Company and their Restricted Subsidiaries to have consummated Asset Sales, measured from May 12, 2011, resulting in aggregate Net Proceeds of less than $25.0 million (the “Second Asset Sale Threshold”), the Company (or the applicable Restricted Subsidiary, as the case may be, ) may apply such Net Proceeds, Proceeds at its option:
(a1) to prepayrepay Indebtedness and other Obligations under a Credit Facility, repaythe Floating Rate Notes or the Unsecured Floating Rate Notes that are pari passu or senior in right of payment to the Notes and, purchaseif applicable, repurchase or redeem any secured Indebtedness of the Company or any Restricted Subsidiary of the Companyto correspondingly reduce commitments with respect thereto;
(b2) to acquire Business Assets or any Capital Stock of a controlling interest in another business Permitted Business, if, after giving effect to any such acquisition of Capital Stock or all Business Assets, such Capital Stock or substantially all Business Assets become part of the or held or owned by a Guarantor;
(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 operating line of another business, in each case engaged useful in a Permitted Business;
(c) ; provided, however, that in the event the Net Proceeds resulting from an Asset Sale causes the aggregate Net Proceeds for all Asset Sales by the Parent, the Company and their Restricted Subsidiaries, measured from May 12, 2011, to make capital expenditures; or
(d) to acquire other non-current assets exceed the Second Asset Sale Threshold, the amount of the aggregate Net Proceeds which is less than the Second Asset Sale Threshold shall continue to be used in a Permitted Businesssubject to this paragraph. Pending the final application of any such Net Proceeds, the Parent, the Company or the applicable Restricted Subsidiary may temporarily reduce Indebtedness under any Credit Facility revolving credit borrowings or otherwise expend or invest such the Net Proceeds in any manner that is not prohibited by this Indenture. Any Net Proceeds from (i) Asset Sales described in this paragraph that are not applied or invested as provided in the first sentence of this second paragraph of this Section 4.10 shall be deemed or (ii) Asset Sales the Net Proceeds resulting from which cause the Parent, the Company and their Restricted Subsidiaries to have consummated Asset Sales, measured from the date of this Indenture, resulting in Net Proceeds greater than the Second Asset Sale Threshold, where such Net Proceeds are not applied to repay Indebtedness and reduce commitments as contemplated by Subsection (1) in the second paragraph of this Section 4.10 (except for Net Proceeds subject to the fifth paragraph of this Section 4.10) will constitute “Excess Asset Sale Proceeds.” When the aggregate amount of Excess Asset Sale Proceeds exceeds $10.0 5.0 million, the Parent or the Company will be required under this Indenture to will, within 20 days thereof, make an offer Asset Sale Offer to the all Holders of Notes issued thereunder and the all holders of any other Senior Indebtedness that is subject pari passu with the Notes containing provisions similar to requirements those set forth in this Indenture with respect to the application of net proceeds from asset sales that are substantially similar to those contained in this Indenture (an “Asset Sale Offer”) offers to purchase on a pro rata basis (or redeem with the Excess Asset Sale Proceeds prorated between the Holders proceeds of the Notes and such holders sales of such other Senior Indebtedness based upon outstanding aggregate principal amounts) assets in accordance with Section 3.11 hereof to purchase the maximum principal amount of the Notes and such other Senior pari passu Indebtedness that may be purchased or prepaid, as applicable, out of the prorated Excess Asset Sale Proceeds, at an . The offer price in cash in an amount any Asset Sale Offer will be equal to 100% of the principal amount thereof plus accrued and unpaid interest thereon to the date of purchase, and will be payable in accordance with cash. If any Excess Proceeds remain after consummation of an Asset Sale Offer, the procedures set forth in Parent or the Company may use those Excess Proceeds for any purpose not otherwise prohibited by this Indenture. To the extent that If the aggregate principal amount of Notes and other Senior pari passu Indebtedness tendered (and electing to be redeemed or repaid, as applicable) pursuant to an into such Asset Sale Offer is less than exceeds the amount of Excess Asset Sale Proceeds, the Company Trustee will select the Notes and its Restricted Subsidiaries may use any remaining Excess Asset Sale Proceeds for general corporate purposes and any such other purpose not prohibited by this Indenturepari passu Indebtedness to be purchased on a pro rata basis. Upon completion of the offer to purchaseeach Asset Sale Offer, the amount of Excess Proceeds will be reset at zero. Notwithstanding the foregoing, in the event that the Net Proceeds from an Asset Sale exceed $75.0 million in the aggregate, in lieu of applying such Net Proceeds as set forth above, within 30 days after the receipt of such Net Proceeds, the Company shall apply such Net Proceeds to repay Indebtedness and other Obligations under a Credit Facility that are pari passu or senior in right of payment to the Notes and to correspondingly reduce commitments with respect thereto. Any Net Proceeds subject to this paragraph that are not applied as set forth in the preceding sentence will constitute “Excess Proceeds” solely for purposes of this paragraph. When the aggregate amount of Excess Proceeds subject to this paragraph exceeds $25.0 million, within 20 days thereof, the Parent or 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 the 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 subject to this paragraph. The offer price in any Asset Sale Offer pursuant to this paragraph will be equal to 101% of the principal amount plus accrued and unpaid interest to the date of purchase, and will be payable in cash. If any Excess Proceeds subject to this paragraph remain after consummation of an Asset Sale Offer, the Parent or the Company may use those Excess Proceeds for any purpose not otherwise prohibited by the 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 subject to this paragraph, 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 subject to this paragraph will be reset at zero. The Parent and the Company will comply with the requirements of Rule 14e-1 under the Exchange Act and any other securities laws and regulations thereunder to the extent such those laws and regulations are applicable in connection with 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 3.11 hereof or this Section 4.10, the Parent and 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 hereof or this Section 4.10 by virtue of the Company’s compliance with such securities laws or regulationscompliance.
Appears in 2 contracts
Samples: Indenture (Angiotech America, Inc.), Indenture (Angiotech Pharmaceuticals Inc)
Asset Sales. The Company will not, and will not permit any of its Restricted Subsidiaries to, consummate an Asset Sale unless:
(1) the Company or the Restricted Subsidiary, as the case may be, receives consideration at the time of the Asset Sale at least equal to the Fair Market Value (measured as of the date of the definitive agreement with respect to such Asset Sale) of the assets or Equity Interests issued or sold or otherwise disposed of; and
(2) at least 75% of the consideration received in such Asset Sale is in the form of cash or Cash Equivalents; provided that any of the following items shall be deemed to be cash and Cash Equivalents for the purposes of this clause (2):
(a) the assumption of any liabilities (as shown on the Company’s or the Restricted Subsidiary’s most recent balance sheet) None of the Company or any Restricted Subsidiary will sell, transfer, lease or otherwise dispose of the Company (including pursuant to any transfer or contribution to a Restricted Subsidiary), or exclusively license, any asset, including any Equity Interest owned by it, nor will any Restricted Subsidiary issue any additional Equity Interest in such Restricted Subsidiary (other than liabilities that are by their terms subordinated to Notes issued under this Indenture or any Subsidiary Guarantee) by the transferee of any such assets pursuant to a customary novation agreement that releases the Company or a Restricted Subsidiary, and other than directors’ qualifying shares and other nominal amounts of Equity Interests that are required to be held by other Persons under Requirements of Law) (each, a “Disposition”; provided that an Economic IP Transfer shall not constitute a Disposition), except:
(a) Dispositions of inventory or used or surplus equipment in the Restricted Subsidiary from further liabilityordinary course of business or of cash and Permitted Investments and the granting of non-exclusive licenses and sublicenses of Intellectual Property in the ordinary course of business;
(b) Dispositions to the Company or any securitiesRestricted Subsidiary; provided that any such Dispositions involving a Restricted Subsidiary that is not a Guarantor Loan Party shall be made in compliance with Section 6.09; provided that no Disposition of Intellectual Property material to the business or operations of the Company and its Restricted Subsidiaries, notes taken as a whole, owned by a Guarantor Loan Party may be made to a Restricted Subsidiary that is not a Guarantor Loan Party pursuant to this clause (b);
(c) (i) Dispositions of Receivables in connection with the compromise or collection thereof in the ordinary course of business and not as part of any Permitted Receivables Facility and (ii) Dispositions of Receivables pursuant to a Permitted Receivables Facility;
(d) Dispositions of property to the extent that (i) such property is exchanged for credit against the purchase price of similar replacement property or (ii) the proceeds of such disposition are promptly applied to the purchase price of such replacement property;
(e) any Permitted IP Transfer;
(f) sales by the Company or Restricted Subsidiaries of Receivables to one or more Receivables Subsidiaries in connection with any Permitted Receivables Facility; provided that (i) each such Permitted Receivables Facility is effected on terms which are considered customary for such a facility, as determined in good faith by the Company or such Restricted Subsidiary, (ii) the aggregate amount of the Seller’s Retained Interests in such Permitted Receivables Facilities does not exceed an amount at any time outstanding that is customary for similar transactions, as determined in good faith by the Company or such Restricted Subsidiary and (iii) the proceeds to each such Receivables Subsidiary from the issuance of Third Party Interests are applied substantially simultaneously with the receipt thereof to the purchase from the Company or Restricted Subsidiaries of Receivables;
(g) Scheduled Dispositions and Sale/Leaseback Transactions permitted by Section 6.07;
(h) Dispositions of assets subject to any casualty or condemnation proceeding (including in lieu thereof);
(i) 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 arrangements and similar binding arrangements;
(j) Dispositions of assets that are not permitted by any other obligations clause of this Section; provided that all Dispositions made in reliance on this clause shall be made for fair value and at least 75% Cash Consideration; provided, further, that any Designated Non-Cash Consideration received by the Company or any of its Restricted Subsidiaries in respect of such Restricted Subsidiary from sale, transfer, lease or other disposition having an aggregate fair market value, taken together with all other Designated Non-Cash Consideration received pursuant to this clause that is at that time outstanding, not in excess of $100,000,000 at the time of the receipt of such transferee that are converted by Designated Non-Cash Consideration, with the fair market value of each item of Designated Non-Cash Consideration being measured at the time received and without giving effect to subsequent changes in value, shall be deemed to be Cash Consideration;
(k) [Reserved];
(l) Dispositions of assets related to the business of the Company and its Restricted Subsidiaries to one or more joint ventures in exchange for Equity Interests in such joint ventures; provided that the aggregate book value of all assets disposed of in reliance on this clause after the Closing Date shall not exceed the greater of (x) $200,000,000 and (y) 4.00% of Consolidated Total Assets as of the end of the most recent Test Period for which financial statements have been delivered pursuant to Section 5.01(a) or 5.01(b) hereof;
(m) Restricted Subsidiary into cash or Cash Equivalents within 180 days following their receipt (to the extent of cash or Cash Equivalents receivedPayments permitted by Section 6.09(a); and
(cn) any stock sales, transfers, leases, subleases, licenses, sublicenses, cross-licenses or assets of the kind referred other dispositions to in clauses (b) and (d) of the next paragraph of this Section 4.10. Within 365 days after the receipt of any Net Proceeds from an Asset Sale, the Company or the Restricted Subsidiary, as the case may be, may apply such Net Proceeds, at its option:
(a) to prepay, repay, purchase, repurchase or redeem any secured Indebtedness of by the Company or any Restricted Subsidiary of the Company;
(b) to acquire a controlling interest in another business or all or substantially all of the assets or operating line of another business, in each case engaged in a Permitted Business;
(c) to make capital expenditures; or
(d) to acquire other non-current assets to be used in a Permitted Business. Pending the final application of any such Net Proceeds, the Company may temporarily reduce Indebtedness under any Credit Facility or otherwise expend or invest such Net Proceeds in any manner that is not prohibited by this Indenture. Any Net Proceeds from Asset Sales described in this paragraph that are not applied or invested as provided in the first sentence of this paragraph of this Section 4.10 shall be deemed to constitute “Excess Asset Sale Proceeds.” When the aggregate amount of Excess Asset Sale Proceeds exceeds $10.0 million, the Company will be required under this Indenture to make an offer to the Holders of Notes issued thereunder and the holders of any other Senior Indebtedness that is subject to requirements with respect to the application of net proceeds from asset sales that are substantially similar to those contained in this Indenture (an “Asset Sale Offer”) to purchase on a pro rata basis (connection with the Excess Asset Sale Proceeds prorated between the Holders of the Notes and such holders of such other Senior Indebtedness based upon outstanding aggregate principal amounts) the maximum principal amount of the Notes and such other Senior Indebtedness that may be purchased or prepaid, as applicable, out of the prorated Excess Asset Sale 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. To the extent that the aggregate principal amount of Notes and other Senior Indebtedness tendered (and electing to be redeemed or repaid, as applicable) pursuant to an Asset Sale Offer is less than the Excess Asset Sale Proceeds, the Company and its Restricted Subsidiaries may use any remaining Excess Asset Sale Proceeds for general corporate purposes and any other purpose not prohibited by this Indenture. Upon completion of the offer to purchase, the amount of Excess Asset Sale Proceeds shall 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 Separation Transactions to the extent such laws and regulations are applicable the making thereof is consistent in connection with an Asset Sale Offer. To the extent that the provisions of any securities laws or regulations conflict all material respects with the provisions of 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 this Section 4.10 by virtue of the Company’s compliance with such securities laws or regulationsForm 10.
Appears in 1 contract
Samples: Credit Agreement (NCR Corp)
Asset Sales. The (a) RYAM and the Company will shall not, and will shall not permit any of its the Restricted Subsidiaries to, consummate cause or make an Asset Sale unless:
Sale, unless (1x) RYAM, the Company or the any Restricted Subsidiary, as the case may be, receives consideration at the time of the such Asset Sale at least equal to the Fair Market Value (measured as of determined in good faith by the date of the definitive agreement with respect to such Asset SaleCompany) of the assets or Equity Interests issued or sold or otherwise disposed of; and
, and (2y) at least 75% of the consideration therefor received in by RYAM, the Company or such Asset Sale Restricted Subsidiary, as the case may be, is in the form of cash or Cash Equivalents; provided that any of the following items shall be deemed to be cash and Cash Equivalents for the purposes of this clause (2):amount of:
(ai) the assumption of any liabilities (as shown on RYAM’s, the Company’s or the a Restricted Subsidiary’s most recent balance sheetsheet or in the notes thereto) of RYAM, the Company or any a Restricted Subsidiary of the Company (other than liabilities that are by their terms subordinated to the Notes issued under this Indenture or any Subsidiary Guarantee) that are assumed by the transferee of any such assets pursuant to a customary novation agreement or that releases are otherwise cancelled or terminated in connection with the transaction with such transferee;
(ii) any notes or other Obligations or other securities or assets received by RYAM, the Company or the Restricted Subsidiary from further liability;
(b) any securities, notes or other obligations received by the Company or any such Restricted Subsidiary from such transferee that are converted by RYAM, the Company or the such Restricted Subsidiary into cash or Cash Equivalents within 180 days following their of the receipt thereof (to the extent of the cash or Cash Equivalents received);
(iii) Indebtedness of any Restricted Subsidiary that is no longer a Restricted Subsidiary as a result of such Asset Sale, to the extent that RYAM, the Company and each other Restricted Subsidiary are released from any guarantee of payment of such Indebtedness in connection with the Asset Sale;
(iv) consideration consisting of Indebtedness of the Company or any Guarantor (other than Subordinated Indebtedness) received after the Issue Date from Persons who are not RYAM, the Company or any Restricted Subsidiary; and
(cv) any stock or assets of the kind referred to in clauses (b) and (d) of the next paragraph of this Section 4.10. Within 365 days after the receipt of any Net Proceeds from an Asset SaleDesignated Non-cash Consideration received by RYAM, the Company or any Restricted Subsidiary in such Asset Sale having an aggregate Fair Market Value (as determined in good faith by the Company), taken together with all other Designated Non-cash Consideration received pursuant to this Section 4.06(a)(v) that is at that time outstanding, not to exceed the greater of $100 million and 4.0% of Total Assets at the time of the receipt of such Designated Non-cash Consideration (with the Fair Market Value of each item of Designated Non-cash Consideration being measured at the time received and without giving effect to subsequent changes in value); shall be deemed to be Cash Equivalents for the purposes of this Section 4.06(a).
(b) Within 365 days (or 60 days, in the case of clause (iii) below) after RYAM’s, the Company’s or any Restricted Subsidiary’s receipt of the Net Proceeds of any Asset Sale, as RYAM, the case may be, Company or such Restricted Subsidiary may apply the Net Proceeds from such Net ProceedsAsset Sale, at its option:
(ai) to prepayrepay (A) to the extent such Net Proceeds constitute proceeds from the sale of ABL Priority Collateral, repayobligations under the ABL Credit Agreement, purchase(B) to the extent such Net Proceeds constitute proceeds from the sale of Cash Flow Priority Collateral, repurchase Obligations under the Notes or redeem under Additional Cash Flow Obligations (and, if the Indebtedness repaid is revolving credit Indebtedness, to correspondingly reduce commitments with respect thereto), (C) to the extent such Net Proceeds are from other assets, either (x) Additional Cash Flow Obligations or (y) Obligations under the Notes (provided that if RYAM, the Company or any secured Guarantor shall so reduce Obligations under this clause (C)(x), the Company will equally and ratably reduce Notes Obligations pursuant to Section 3.01, through open-market purchases (provided that such purchases are at or above 100% of the principal amount thereof or, in the event that the Notes were issued with significant original issue discount, 100% of the accreted value thereof) or by making an offer (in accordance with the procedures set forth below for an Asset Sale Offer) to all holders of the Notes to purchase at a purchase price equal to 100% of the principal amount thereof (or, in the event that the Notes were issued with significant original issue discount, 100% of the accreted value thereof), plus accrued and unpaid interest on the pro rata principal amount of Notes), in each case other than Indebtedness owed to RYAM, the Company or an Affiliate of the Company or (D) to the extent such Net Proceeds are not from an Asset Sale of Collateral, Indebtedness of a Restricted Subsidiary that is not a Guarantor;
(ii) to make an investment in any one or more businesses (provided that if such investment is in the form of the acquisition of Capital Stock of a Person, such acquisition results in such Person becoming a Restricted Subsidiary of RYAM or the Company;
(b) to acquire a controlling interest in another business ), assets, or all property or substantially all of the assets or operating line of another businesscapital expenditures, in each case engaged (A) used or useful in a Permitted Business;
Similar Business or (cB) that replace the properties and assets that are the subject of such Asset Sale or to make capital expendituresreimburse the cost of any of the foregoing incurred on or after the date on which the Asset Sale giving rise to such Net Proceeds was contractually committed; or
(diii) to acquire other nonmake a Special Asset Sale Redemption. In the case of Section 4.06(b)(ii), a binding commitment shall be treated as a permitted application of the Net Proceeds from the date of such commitment until the 12-current assets month anniversary of the date of the receipt of such Net Proceeds; provided that in the event such binding commitment is later canceled or terminated for any reason before such Net Proceeds are so applied, then such Net Proceeds shall constitute Excess Proceeds unless RYAM, the Company or such Restricted Subsidiary enters into another binding commitment (a “Second Commitment”) within six months of such cancellation or termination of the prior binding commitment; provided, further, that RYAM, the Company or such Restricted Subsidiary may only enter into a Second Commitment under the foregoing provision one time with respect to be used in a Permitted Businesseach Asset Sale and to the extent such Second Commitment is later cancelled or terminated for any reason before such Net Proceeds are applied or are not applied within 180 days of such Second Commitment, then such Net Proceeds shall constitute Excess Proceeds. Pending the final application of any such Net Proceeds, RYAM, the Company or such Restricted Subsidiary may temporarily reduce Indebtedness under any Credit Facility a revolving credit facility, if any, or otherwise expend or invest such Net Proceeds in any manner that is not prohibited by this Indenture. Any Net Proceeds from any Asset Sales described in this paragraph Sale that are not applied or invested as provided and within the time period set forth in this Section 4.06(b) (it being understood that any portion of such Net Proceeds used to make an offer to purchase the first sentence of this paragraph Notes, as described in clause (i) of this Section 4.10 4.06(b), shall be deemed to have been applied whether or not such offer is accepted) will be deemed to constitute “Excess Asset Sale Proceeds.” When the aggregate amount of Excess Asset Sale Proceeds exceeds $10.0 75 million, the Company will be required under this Indenture to shall make an offer to all holders of the Holders Notes (and, at the option of Notes issued thereunder and the Company, to holders of any other Senior Indebtedness that is subject to requirements with respect to the application of net proceeds from asset sales that are substantially similar to those contained in this Indenture Additional Cash Flow Obligations) (an “Asset Sale Offer”) to purchase on a pro rata basis (with the Excess Asset Sale Proceeds prorated between the Holders of the Notes and such holders of such other Senior Indebtedness based upon outstanding aggregate principal amounts) the maximum principal amount of the Notes (and such other Senior Indebtedness Additional Cash Flow Obligations), that is at least $2,000 and an integral multiple of $1,000 in excess thereof that may be purchased or prepaid, as applicable, out of the prorated Excess Asset Sale Proceeds, Proceeds at an offer price in cash in an amount equal to 100% of the principal amount thereof (or, in the event the Notes or Additional Cash Flow Obligations were issued with significant original issue discount, 100% of the accreted value thereof), plus accrued and unpaid interest thereon to (or, in respect of such Additional Cash Flow Obligations, such lesser price, if any, as may be provided for by the terms of such Additional Cash Flow Obligations), to, but excluding, the date fixed for the closing of purchasesuch 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 (10) Business Days after the date that Excess Proceeds exceeds $75 million by mailing, or delivering electronically if held by the Depository, the notice required pursuant to the terms of this Indenture, with a copy to the Trustee. To the extent that the aggregate principal amount of Notes and other Senior Indebtedness tendered (and electing to be redeemed or repaid, as applicablesuch Additional Cash Flow Obligations) tendered pursuant to an Asset Sale Offer is less than the Excess Asset Sale Proceeds, the Company and its Restricted Subsidiaries may use any remaining Excess Asset Sale Proceeds for general corporate purposes and any other purpose that is not prohibited by this Indenture. If the aggregate principal amount of Notes (and such Additional Cash Flow Obligations) surrendered by holders thereof exceeds the amount of Excess Proceeds, the Trustee, upon receipt of notice from the Company of the aggregate principal amount to be selected, shall select the Notes to be purchased in the manner described in Section 4.06(e). Upon completion of the offer to purchaseany such Asset Sale Offer, the amount of Excess Asset Sale Proceeds shall be reset at zero. .
(c) The Company will comply comply, to the extent applicable, with the requirements of Rule 14e-1 under the Exchange Act and any other securities laws and regulations thereunder to the extent such laws and or regulations are applicable in connection with the repurchase of the Notes pursuant to an Asset Sale Offer. To the extent that the provisions of any securities laws or regulations conflict with the provisions of this Section 4.10Indenture, the Company will comply with the applicable securities laws and regulations and will shall not be deemed to have breached its obligations under described in this Indenture by virtue thereof.
(d) Not later than the date upon which written notice of an Asset Sale Offer is delivered to the Trustee as provided above, the Company shall deliver to the Trustee an Officers’ Certificate as to (i) the amount of the Excess Proceeds, (ii) the allocation of the Net Proceeds from the Asset Sales pursuant to which such Asset Sale Offer is being made and (iii) the compliance of such allocation with the provisions of Section 4.06(b). On such date, the Company shall also irrevocably deposit with the Trustee or with the Paying Agent (or, if the Company or a Subsidiary is acting as the Paying Agent, segregate and hold in trust) an amount equal to the Excess Proceeds to be invested in Cash Equivalents, as directed in writing by the Company and to be held for payment in accordance with the provisions of this Section 4.10 by virtue 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 Notes or portions thereof that have been properly tendered to and are to be accepted by the Company. The Trustee (or the Paying Agent, if not the Trustee) shall, on the date of purchase, mail or deliver payment to each tendering holder in the amount of the purchase price. In the event that the Excess Proceeds delivered by the Company to the Trustee are greater than the purchase price of the Notes tendered, the Trustee shall deliver the excess to the Company immediately after the expiration of the Offer Period for application in accordance with this Section 4.06.
(e) Holders electing to have a Note purchased shall be required to surrender such Note, 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 Note which was delivered by the holder for purchase and a statement that such holder is withdrawing his election to have such Note purchased. If at the end of the Offer Period more Notes (and such Additional Cash Flow Obligations) are tendered pursuant to an Asset Sale Offer than the Company is required to purchase, selection of the amount of Notes in respect of which an Asset Sale Offer was made shall be designated by the Company to the Trustee and the Notes to be purchased shall be selected on a pro rata basis to the extent practicable, by lot or by such other method as the Trustee shall deem fair and appropriate (and in such manner as complies with the requirements of the Depository, if applicable); provided that no Notes of $2,000 or less shall be purchased in part. Holders whose Notes are purchased only in part shall be issued new Notes equal in principal amount to the unpurchased portion of the Notes surrendered. Selection of such Additional Cash Flow Obligations shall be made pursuant to the terms of such Additional Cash Flow Obligations.
(f) Notices of an Asset Sale Offer shall be mailed by the Company by first class mail, postage prepaid, or delivered electronically if held by the Depository, at least 15 but not more than 60 days before the purchase date to each holder of the Notes at such holder’s compliance with registered address. If any Note is to be purchased in part only, any notice of purchase that relates to such securities laws Note shall state the portion of the principal amount thereof that has been or regulationsis to be purchased.
(g) For purposes of this Section 4.06, any sale by the Company or a Restricted Subsidiary of the Capital Stock of a Restricted Subsidiary that owns assets constituting Collateral shall be deemed to be a sale of such Collateral.
Appears in 1 contract
Asset Sales. The (a) the Company will shall not, and will shall not permit any of its Restricted Subsidiaries to, consummate an Asset Sale unless:
(1) the Company or the Restricted Subsidiary, as the case may be, receives consideration at the time of the Asset Sale at least equal to the Fair Market Value (measured as determined by the Company’s Board of Directors and evidenced by a resolution of the date Board of Directors set forth in an officers’ certificate delivered to the definitive agreement with respect Trustee as to such Asset SaleSales having a Fair Market Value of $50.0 million or greater) of the assets or Equity Interests issued or sold or otherwise disposed of; and
(2) at least 75% of the consideration received in such the Asset Sale by the Company or such Restricted Subsidiary is in the form of cash or Cash Equivalents; provided that any , publicly traded equity securities of a Person with a market capitalization (not held by Affiliates of such Person) of at least $500 million or a controlling interest in, or long-term assets used or useful in, a business engaged in a Permitted Business. For purposes of this provision, each of the following items shall will also be deemed to be cash and Cash Equivalents for the purposes of this clause (2):cash:
(aA) the assumption of any liabilities (liabilities, as shown on the Company’s or the Restricted Subsidiary’s its most recent balance sheet) , of the Company or any such Restricted Subsidiary of the Company (other than contingent liabilities and liabilities that are by their terms subordinated to the Notes issued under this Indenture or any Subsidiary Guarantee) that are assumed by the transferee of any such assets pursuant to a customary novation agreement that releases the Company or the such Restricted Subsidiary from further liability;
(bB) any securities, notes or other obligations received by the Company or any such Restricted Subsidiary from such transferee that are promptly, subject to ordinary settlement periods, converted or monetized by the Company or the such Restricted Subsidiary into cash or Cash Equivalents within 180 days following their receipt (cash, to the extent of the cash received in that conversion or Cash Equivalents received)monetization; and
(cC) any stock Capital Stock or assets of the kind referred to in clauses clause (2) or (4) of Section 4.12(b).
(b) and (d) of the next paragraph of this Section 4.10. Within 365 360 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 those Net Proceeds, at its option, to any one or more of the following:
(a1) to prepay, repay, purchase, repurchase or redeem any repay secured Indebtedness and other secured Obligations of the Company or any and its Restricted Subsidiary of the CompanySubsidiaries;
(b2) to acquire a controlling interest in another business or all or substantially all of the assets of, or operating line of another businessany Capital Stock of, any Person or division conducting a Permitted Business, if, in each the case engaged of any such acquisition of Capital Stock and after giving effect thereto, such Person will be a Restricted Subsidiary of the Company (or enter into a binding commitment for any such acquisition); provided that such binding commitment shall be treated as a permitted application of Net Proceeds from the date of such commitment until and only until the earlier of (x) the date on which such acquisition is consummated and (y) the 180th day following the expiration of the aforementioned 360-day period. If the acquisition or expenditure contemplated by such binding commitment is not consummated on or before such 180th day and the Company or such Restricted Subsidiary shall not have applied such Net Proceeds pursuant to clause (1), (3) or (4) of this Section 4.12(b) on or before such 180th day, such commitment shall be deemed not to have been a permitted application of Net Proceeds;
(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;; provided, however, that to the extent that the Asset Sale consists, directly or indirectly, of Domestic Assets, in order to qualify under any of the foregoing clauses (1) through (4) of this Section 4.12(b), the Company must apply such proceeds to acquire additional Domestic Assets, acquire assets located in the United States or a Person described in Section 4.12(b)(2) which will become a Domestic Subsidiary at the time it becomes a Restricted Subsidiary pursuant thereto, make domestic capital expenditures or repay Indebtedness that is an obligation of the Company or a Subsidiary Guarantor.
(c) to make capital expenditures; or
(d) to acquire other non-current assets to be used in a Permitted Business. Pending the final application of any such Net Proceeds, the Company may temporarily reduce Indebtedness under any Credit Facility revolving credit borrowings or otherwise expend or invest such the Net Proceeds in any manner that is not prohibited by this Supplemental Indenture. Any Net Proceeds from Asset Sales described in this paragraph that are not applied or invested as provided in the first sentence of this paragraph of this Section 4.10 shall be deemed to 4.12(b) will constitute “Excess Asset Sale Proceeds.” When On the 361st day after the Asset Sale (or, at the Company’s option, any earlier date), if the aggregate amount of Excess Asset Sale Proceeds exceeds $10.0 25.0 million, the Company will be required under this Indenture to make an offer to the Holders of Notes issued thereunder and the holders of any other Senior Indebtedness that is subject to requirements with respect to the application of net proceeds from asset sales that are substantially similar to those contained in this Indenture (an “Asset Sale Offer”) Offer to purchase on a pro rata basis (with the Excess Asset Sale Proceeds prorated between the all Holders of the Notes and such all holders of such other Senior Pari Passu Indebtedness based upon outstanding aggregate principal amounts) in respect of which an offer to purchase is also required to purchase the maximum principal amount of the Notes and such other Senior Pari Passu Indebtedness that may be purchased or prepaid, as applicable, out of the prorated Excess Asset Sale Proceeds, at an . The offer price in cash in an amount any Asset Sale Offer will be equal to 100% of the principal amount thereof plus accrued and unpaid interest thereon to the date of purchase, and will be payable in accordance with cash. If any Excess Proceeds remain after consummation of an Asset Sale Offer, the procedures set forth in Company may use those Excess Proceeds for any purpose not otherwise prohibited by this Supplemental Indenture. To the extent that If the aggregate principal amount of Notes and other Senior Pari Passu Indebtedness tendered (and electing to be redeemed or repaid, as applicable) pursuant to an into such Asset Sale Offer is less than exceeds the amount of Excess Asset Sale Proceeds, the Company Trustee will select the Notes and its Restricted Subsidiaries may use any remaining Excess Asset Sale Proceeds for general corporate purposes and any such other purpose not prohibited by this IndenturePari Passu Indebtedness to be purchased on a pro rata basis. Upon completion of the offer to purchaseeach Asset Sale Offer, the amount of Excess Asset Sale Proceeds shall will be reset at zero. .
(d) The Company will shall comply with the requirements provisions of Rule 14e-1 under the Exchange Act and any other securities laws and regulations thereunder to the extent such laws and regulations those provisions are applicable in connection with each repurchase of Notes pursuant to a Change of Control Offer or an Asset Sale Offer. To the extent that the provisions of any securities laws or regulations conflict with the Change of Control or Asset Sale provisions of this Section 4.10Supplemental Indenture, the Company will shall comply with the applicable securities laws and regulations and will not be deemed to have breached its obligations under the Change of Control or Asset Sale provisions of this Section 4.10 Supplemental Indenture by virtue of such conflict.
(e) Notwithstanding the Company’s compliance provisions described in Sections 4.12(a), (b), (c) and (d) (other than the proviso to Section 4.12(b)), the Company and its Restricted Subsidiaries may consummate an Asset Sale without complying with such securities laws provisions if (i) at least 80% of the consideration for such Asset Sale is in the form of assets used or regulationsuseful in a Permitted Business and (ii) such Asset Sale is for at least Fair Market Value.
Appears in 1 contract
Samples: First Supplemental Indenture (Westlake Chemical Corp)
Asset Sales. (a) The Company will shall not, and will shall not permit any of its Restricted Subsidiaries to, consummate an Asset Sale unless:
(1i) the Company (or the Restricted Subsidiary, as the case may be, ) receives consideration at the time of the such Asset Sale at least equal to the Fair Market Value (measured as determined by the Board of the date of the definitive agreement with respect to such Asset SaleDirectors) of the assets or Equity Interests issued or sold or otherwise disposed of; provided that this clause (i) shall not apply to an Asset Sale resulting solely from a foreclosure or sale by a third party upon assets or property subject to a Lien not prohibited by this Indenture;
(ii) where such Fair Market Value exceeds $25.0 million, the Company's Board of Directors' determination of such Fair Market Value is set forth in an Officers' Certificate delivered to the Trustee; and
(2iii) at least 75% of the consideration therefor received in by the Company or such Asset Sale Restricted Subsidiary is in the form of cash Cash Equivalents or Cash Equivalents; provided that any Replacement Assets or a combination thereof. For purposes of this provision, each of the following items shall be deemed to be cash and Cash Equivalents for the purposes of this clause (2):Equivalents:
(aA) the assumption of any liabilities (as shown on the Company’s 's or the such Restricted Subsidiary’s 's most recent balance sheet, or would be shown on the Company's or such Restricted Subsidiary's balance sheet on the date of such Asset Sale) of the Company or any Restricted Subsidiary of the Company (other than liabilities contingent liabilities, Indebtedness that are is by their its terms subordinated to the Notes issued under this Indenture or any Subsidiary GuaranteeNote Guarantee and liabilities to the extent owed to the Company or any Affiliate of the Company) that are assumed by the transferee of any such assets pursuant to a customary novation written agreement that releases the Company or the such Restricted Subsidiary from further liability;liability therefor; and
(bB) any securities, notes or other obligations received by the Company or any such Restricted Subsidiary from such transferee that are converted (including by way of any Monetization Transaction) by the Company or the such Restricted Subsidiary into cash or Cash Equivalents within 180 days following their receipt (to the extent of the cash or Cash Equivalents received); andreceived in that conversion) within 120 days of such Asset Sale.
(c) any stock or assets of the kind referred to in clauses (b) and (d) of the next paragraph of this Section 4.10. Within 365 360 days after the receipt of any Net Proceeds from an Asset Sale, the Company or the Restricted Subsidiary, as the case may be, may apply such Net Proceeds, Proceeds at its option:
(ai) to prepay, repay, purchase, repurchase or redeem any repay unsubordinated secured Indebtedness and, if the Indebtedness repaid is revolving credit Indebtedness, to correspondingly reduce commitments with respect thereto;
(ii) to acquire all or substantially all of the Company assets of, or any a majority of the Voting Stock of, another Permitted Business (including by means of a merger, consolidation or other business combination permitted under this Indenture) to be held, commencing on the date of such acquisition, as or in a Restricted Subsidiary of the Company;
(biii) to acquire a controlling interest in another business pay for or all or substantially all of the assets or operating line of another business, in each case engaged in a Permitted Business;
(c) to make capital expenditurespurchase Replacement Assets; or
(div) to acquire other non-current assets to be used in a Permitted Businessany combination of the foregoing. Pending the final application of any such Net Proceeds, the Company may temporarily reduce Indebtedness under any Credit Facility revolving credit borrowings or otherwise expend or invest such Net Proceeds in any manner that is not prohibited by this Indenture. .
(c) Any Net Proceeds from Asset Sales described in this paragraph that are not applied or invested as provided in the first sentence of this paragraph of this Section 4.10 4.10(b) above shall be deemed to constitute “Excess Asset Sale Proceeds"EXCESS PROCEEDS.” When " Within 30 days after the aggregate amount of Excess Asset Sale Proceeds exceeds $10.0 25.0 million, the Company will be required under this Indenture to shall make an Asset Sale offer (an "ASSET SALE OFFER") to the all Holders of Notes issued thereunder and the all holders of any other Senior Indebtedness that is subject pari passu with the Notes or any Note Guarantee containing provisions similar to requirements those set forth by this Indenture with respect to the application of net proceeds from asset sales that are substantially similar to those contained in this Indenture (an “Asset Sale Offer”) offers to purchase on a pro rata basis (with the Excess Asset Sale Proceeds prorated between proceeds of sales of assets, to purchase the Holders maximum principal amount of the Notes and such holders other pari passu Indebtedness that may be purchased out of such other Senior Indebtedness based upon outstanding aggregate principal amounts) the maximum Excess Proceeds. The offer price in any Asset Sale Offer shall be equal to 100% of the principal amount of the Notes and such other Senior pari passu Indebtedness that may be purchased or prepaid, as applicable, out of the prorated Excess Asset Sale 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, and shall be payable in accordance with cash. If any Excess Proceeds remain after consummation of an Asset Sale Offer, the procedures set forth in Company may use such Excess Proceeds for any purpose not otherwise prohibited by this Indenture. To the extent that If the aggregate principal amount of Notes and such other Senior pari passu Indebtedness tendered (and electing to be redeemed or repaid, as applicable) pursuant to an into such Asset Sale Offer is less than exceeds the amount of Excess Asset Sale Proceeds, the Company Notes and its Restricted Subsidiaries may use any remaining Excess Asset Sale Proceeds for general corporate purposes such other pari passu Indebtedness shall be purchased on a pro rata basis based on the principal amount of Notes and any such other purpose not prohibited by this Indenturepari passu Indebtedness tendered. Upon completion of the offer to purchaseeach Asset Sale Offer, the amount of Excess Asset Sale Proceeds shall 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 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, 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 the Company’s compliance with such securities laws or regulations.
Appears in 1 contract
Asset Sales. (a) The Company will shall not, and will shall not permit any Restricted Subsidiary of its Restricted Subsidiaries the Company to, consummate an any Asset Sale unless:
(1i) the Company or the such Restricted Subsidiary, as the case may be, receives consideration at the time of the Asset Sale such sale or other disposition at least equal to the Fair Market Value (measured as of the date of the definitive agreement with respect to such Asset Sale) of the assets or Equity Interests issued or sold or otherwise disposed of; and;
(2ii) at least not less than 75% of the consideration received in by the Company or such Asset Sale Restricted Subsidiary, as the case may be, is in the form of cash or Cash Equivalentscash; provided that any of the following items shall will also be deemed to be cash and Cash Equivalents for the purposes of this clause (2ii):
(aA) the assumption of any liabilities (as shown on the Company’s 's or the such Restricted Subsidiary’s 's most recent balance sheet) of the Company or any Restricted Subsidiary of the Company (other than contingent liabilities and liabilities that are by their terms subordinated subordinate in right of payment to the Notes issued under this Indenture or any Subsidiary Guarantee) that are assumed by the transferee of any such assets pursuant to a customary novation agreement that releases the Company or the such Restricted Subsidiary from further liability;; and
(bB) any securities, notes or other obligations received by the Company or any such Restricted Subsidiary from such transferee that are contemporaneously (subject to ordinary settlement periods) converted by the Company or the Restricted such Subsidiary into cash or Cash Equivalents within 180 days following their receipt (to the extent of the cash or Cash Equivalents receivedreceived in that conversion); and
(ciii) any stock or assets of the kind referred to in clauses (b) and (d) of the next paragraph of this Section 4.10. Within 365 days after the receipt of any Net Cash Proceeds from an Asset Sale, received by the Company or such Restricted Subsidiary are applied:
(A) first, to the extent the Company or any such Restricted Subsidiary, as the case may be, may apply such Net Proceedselects, at its option:
(a) or is required, to prepay, repay, purchase, repurchase repay or redeem any secured purchase Indebtedness under the Credit Agreement within 180 days following the receipt of the Company or Net Cash Proceeds from any Restricted Subsidiary Asset Sale; provided that any such repayment shall result in a permanent reduction of the Company;
(b) to acquire a controlling interest in another business or all or substantially all of the assets or operating line of another business, in each case engaged in a Permitted Business;
(c) to make capital expenditures; or
(d) to acquire other non-current assets to be used in a Permitted Business. Pending the final application of any such Net Proceeds, the Company may temporarily reduce Indebtedness under any Credit Facility or otherwise expend or invest such Net Proceeds in any manner that is not prohibited by this Indenture. Any Net Proceeds from Asset Sales described in this paragraph that are not applied or invested as provided in the first sentence of this paragraph of this Section 4.10 shall be deemed to constitute “Excess Asset Sale Proceeds.” When the aggregate amount of Excess Asset Sale Proceeds exceeds $10.0 million, the Company will be required under this Indenture to make an offer to the Holders of Notes issued commitments thereunder and the holders of any other Senior Indebtedness that is subject to requirements with respect to the application of net proceeds from asset sales that are substantially similar to those contained in this Indenture (an “Asset Sale Offer”) to purchase on a pro rata basis (with the Excess Asset Sale Proceeds prorated between the Holders of the Notes and such holders of such other Senior Indebtedness based upon outstanding aggregate principal amounts) the maximum principal amount of the Notes and such other Senior Indebtedness that may be purchased or prepaid, as applicable, out of the prorated Excess Asset Sale Proceeds, at an offer price in cash in an amount equal to the principal amount so repaid;
(B) second, to the extent of the balance of Net Cash Proceeds after application as described in subclause (A) above, to the extent the Company elects, to an Investment in property or other assets (including Capital Stock or other securities purchased in connection with the acquisition of Capital Stock or property of another Person) in compliance with Section 8.13; provided that
(1) such Investment occurs or the Company or any such Restricted Subsidiary enters into contractual commitments to make such Investment, subject only to customary conditions (other than the obtaining of financing), within 180 days following receipt of such Net Cash Proceeds; and
(2) Net Cash Proceeds so contractually committed are so applied within 270 days following the receipt of such Net Cash Proceeds; and
(C) third, if on such 180th day in the case of clauses (iii)(A) and (iii)(B)(1) (if applicable) or on such 270th day in the case of clause (iii)(B)(2) (if applicable) with respect to any Asset Sale, the Available Asset Sale Proceeds exceed $1.0 million, the Company shall apply an amount equal to the Available Asset Sale Proceeds to an offer to repurchase the Notes, at a purchase price in cash equal to the sum of 100% of the principal amount thereof plus Applicable Premium plus accrued and unpaid interest thereon interest, if any, to the purchase date of purchase, in accordance with the procedures set forth in this Indenture. To terms of Section 7.09.
(b) If an Excess Proceeds Offer is not fully subscribed, the extent that Company may retain the aggregate principal portion of the Available Asset Sale Proceeds not required to repurchase Notes and the amount of Notes and other Senior Indebtedness tendered (and electing to be redeemed or repaid, as applicable) pursuant to an Available Asset Sale Offer is less than Proceeds shall be reset to zero (0).
(c) In the Excess Asset Sale Proceeds, event of the transfer of substantially all of the property and assets of the Company and its Restricted Subsidiaries may use any remaining Excess Asset Sale Proceeds for general corporate purposes as an entirety to a Person in a transaction permitted under Section 8.10 or Section 13.03, the successor Person will be deemed to have sold the properties and any other purpose not prohibited by this Indenture. Upon completion assets of the offer to purchaseCompany and its Restricted Subsidiaries not so transferred for purposes of this Section 8.05, the amount of Excess Asset Sale Proceeds shall be reset at zero. The Company will and must 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 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, the Company will comply 8.05 with the applicable securities laws and regulations and will not be respect to such deemed to have breached its obligations under this Section 4.10 by virtue of the Company’s compliance with such securities laws or regulationssale as if it were an Asset Sale.
Appears in 1 contract
Samples: Purchase Agreement (American Coin Merchandising Inc)
Asset Sales. (a) Prior to the Effective Date, the Escrow Issuer will not, and Intermediate Holdings will not permit the Company or any of its Restricted Subsidiaries to, and from and after the Effective Date, the Company will not, and will not permit any of its Restricted Subsidiaries to, cause or make an Asset Sale of any Notes Collateral unless:
(1) the Company or any of its Restricted Subsidiaries, 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 sold or otherwise disposed of;
(2) at least 75% of the consideration thereof received by the Company or such Restricted Subsidiary is in the form of Cash Equivalents or Asset Sale Cash Equivalents;
(3) (i) to the extent that any assets received by the Company and its Restricted Subsidiaries in such Asset Sale constitute securities or may be used or useful in a Similar Business, such assets are concurrently with their acquisition pledged as Collateral in accordance with the Indenture and the Security Documents and held by the Company, a Guarantor or entity that becomes a Guarantor and (ii) to the extent that any assets received by the Company and its Restricted Subsidiaries in such Asset Sale constitute the Capital Stock of any Person, such Person becomes a Guarantor and the assets of such Person are concurrently with the acquisition pledged as Collateral in accordance with the Indenture and the Security Documents and held by the Company, a Guarantor or entity that becomes a Guarantor; and
(4) an amount equal to 100% of the Net Proceeds from such Asset Sale is paid directly by the purchaser thereof to the Notes Collateral Trustee to be held for application as set forth in (A) or (B) below. The Company or such Restricted Subsidiary may use the Net Proceeds from such Asset Sale at its option to do any one or more of the following:
(A) within 365 days after the Notes Collateral Trustee’s receipt of such Net Proceeds, to make an Asset Sale Investment; provided, however, that (i) such assets are promptly pledged as Collateral in accordance with the Indenture and the Security Documents and owned and held by the Company, a Guarantor or entity that becomes a Guarantor and (ii) to the extent that the assets acquired by the Company and its Restricted Subsidiaries pursuant to such Asset Sale Investment constitute the Capital Stock of any Person, such Person becomes a Guarantor or the assets of such person are promptly pledged as Collateral in accordance with the Indenture and the Security Documents and owned and held by the Company, a Guarantor or entity that becomes a Guarantor, or
(B) within 365 days after the Notes Collateral Trustee’s receipt of such Net Proceeds, to make one or more offers to the holders of the Notes (and, at the option of the Company, the holders of Other Pari Passu Lien Obligations on a pro rata basis) to purchase Notes (and such Other Pari Passu Lien Obligations) pursuant to and subject to the conditions contained in the Indenture (each, a “Notes Collateral Asset Sale Offer”); provided, however, that in connection with any prepayment, repayment or purchase of Indebtedness pursuant to this clause (B), the Company or such Restricted Subsidiary shall permanently retire such Indebtedness and shall cause the related loan commitment (if any) to be permanently reduced in an amount equal to the principal amount so prepaid, repaid or purchased. Notwithstanding the foregoing provisions of this clause (a), the Company and the Restricted Subsidiaries will not be required to apply any Net Proceeds in accordance with this clause (a) except to the extent that the aggregate Net Proceeds from all Asset Sales of Notes Collateral which are not applied in accordance with the preceding paragraph of this covenant exceeds $10.0 million. The Company will commence a Notes Collateral Asset Sale Offer with respect to the Net Proceeds from any Asset Sale of Notes Collateral not later than 10 Business Days after the later of (x) the 365th day (or such later date provided in the preceding paragraph) after such Asset Sale of Notes Collateral to the extent such Net Proceeds have not been used in accordance with paragraph (A) or (B) above and (y) the date that the Net Proceeds from Asset Sales of Notes Collateral not applied in accordance with the second preceding paragraph of this covenant exceeds $10.0 million by providing the notice required pursuant to the terms of the Indenture, with a copy to the Trustee. After the completion of one or more Asset Sales of Notes Collateral, the Company and its Restricted Subsidiaries may, at their option, use the Net Proceeds thereof to make a Notes Collateral Asset Sale Offer prior to the required deadline or with less Net Proceeds than would trigger the requirement for a Notes Collateral Asset Sale Offer in order to satisfy the requirements of this paragraph (a) with respect to such Net Proceeds. After the Company or any Restricted Subsidiary has applied the Net Proceeds from any Asset Sale of any Notes Collateral 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 of any Notes Collateral shall be released by the Notes Collateral Trustee as directed in writing by the Company to the Company or such Restricted Subsidiary for use by the Company or such Restricted Subsidiary for any purpose not prohibited by the terms of the Indenture and shall cease to constitute Net Proceeds of Asset Sales of Notes Collateral subject to the provisions of this covenant.
(b) The Company will not, and will not permit any of its Restricted Subsidiaries to, consummate cause or make an Asset Sale unless:
(other than an Asset Sale of Notes Collateral, which shall be governed by clause (a) of this covenant), unless (1) the Company or the any of its Restricted SubsidiarySubsidiaries, as the case may be, receives consideration at the time of the such Asset Sale at least equal to the Fair Market Value (measured as of the date of the definitive agreement with respect to such Asset Sale) of the assets or Equity Interests issued or sold or otherwise disposed of; and
, and (2) at least 75% of the consideration received in such Asset Sale is in the form of cash or Cash Equivalents; provided that any of the following items shall be deemed to be cash and Cash Equivalents for the purposes of this clause (2):
(a) the assumption of any liabilities (as shown on the Company’s or the Restricted Subsidiary’s most recent balance sheet) of the Company or any Restricted Subsidiary of the Company (other than liabilities that are by their terms subordinated to Notes issued under this Indenture or any Subsidiary Guarantee) by the transferee of any such assets pursuant to a customary novation agreement that releases the Company or the Restricted Subsidiary from further liability;
(b) any securities, notes or other obligations therefor received by the Company or any such Restricted Subsidiary from such transferee that are converted by the Company or the Restricted Subsidiary into cash or Cash Equivalents within 180 days following their receipt (to the extent of cash or Cash Equivalents received); and
(c) any stock or assets of the kind referred to in clauses (b) and (d) of the next paragraph of this Section 4.10. Within 365 days after the receipt of any Net Proceeds from an Asset Sale, the Company or the Restricted Subsidiary, as the case may be, is in the form of Cash Equivalents or Asset Sale Cash Equivalents. Within 365 days after the Company’s or any Restricted Subsidiary’s receipt of the Net Proceeds of any Asset Sale (other than an Asset Sale of Notes Collateral, which shall be governed by clause (a) of this covenant), the Company or such Restricted Subsidiary may apply the Net Proceeds from such Net Proceeds, Asset Sale at its optionoption to any one or more of the following:
(aA) in the case of Net Proceeds from any Asset Sales of assets of any non-Guarantor, to prepay, repay, purchase, repurchase or redeem any secured repay Indebtedness of the Company or any Restricted Subsidiary of the Companysuch non-Guarantor;
(bB) to acquire a controlling interest repay (i) Obligations under the North America ABL Facility to be permanently reduced in another business an amount equal to the principal amount so prepaid, repaid or all purchased or substantially all of the assets or operating line of another business(ii) Other Pari Passu Lien Obligations; provided, however, that, in each the case engaged in a Permitted Business;
of this clause (cii), the Company shall equally and ratably reduce Obligations under the Notes (based on the respective amount of outstanding Other Pari Passu Lien Obligations and Obligations under the Notes) to make capital expendituresas provided under “Optional Redemption,” through open-market purchases or otherwise; or
(dC) to acquire other non-current make an Asset Sale Investment; provided, however, that (i) such assets are promptly pledged as Collateral in accordance with the Indenture and the Security Documents and owned and held by the Company, a Guarantor or entity that becomes a Guarantor and (ii) to be used the extent that the assets acquired by the Company and its Restricted Subsidiaries pursuant to such Asset Sale Investment constitute the Capital Stock of any Person, such Person becomes a Guarantor or the assets of such person are promptly pledged as Collateral in accordance with the Indenture and the Security Documents and owned and held by the Company, a Permitted BusinessGuarantor or entity that becomes a Guarantor. Pending the final application of any such Net Proceeds, the Company or such Restricted Subsidiary may temporarily reduce Indebtedness under any Credit Facility a revolving credit facility, if any, or otherwise expend or invest such Net Proceeds in Cash Equivalents or Investment Grade Securities. The Indenture will provide that any manner that is not prohibited by this Indenture. Any Net Proceeds from any Asset Sales described in this paragraph Sale (other than an Asset Sale of Notes Collateral) that are not applied or invested as provided and within the 365-day time period set forth in the first sentence of this preceding paragraph of this Section 4.10 shall will be deemed to constitute “Excess Asset Sale Proceeds.” ”. When the aggregate amount of Excess Asset Sale Proceeds exceeds $10.0 million, the Company will be required under this Indenture to shall make an offer to the Holders all holders of Notes issued thereunder and (and, at the option of the Company, to holders of any other Senior Indebtedness that is subject to requirements with respect to the application of net proceeds from asset sales that are substantially similar to those contained in this Indenture Pari Passu Indebtedness) (an “Asset Sale Offer”) to purchase on a pro rata basis (with the Excess Asset Sale Proceeds prorated between the Holders of the Notes and such holders of such other Senior Indebtedness based upon outstanding aggregate principal amounts) the maximum principal amount of the Notes (and principal amount or accreted value, as applicable, of such other Senior Indebtedness Pari Passu Indebtedness), that is in minimum denominations of $2,000 and integral multiples of $1,000 thereafter that may be purchased or prepaid, as applicable, out of the prorated Excess Asset Sale Proceeds, Proceeds at an offer price in cash in an amount equal to 100% of the principal amount thereof (or, in the event such Pari Passu Indebtedness was issued with significant original issue discount, “principal amount” shall refer to 100% of the accreted value thereof), plus accrued and unpaid interest thereon and additional interest, if any (or, in respect of such Pari Passu Indebtedness, such lesser price, if any, as may be provided for by the terms of such Pari Passu Indebtedness), to the date fixed for the closing of purchasesuch offer, in accordance with the procedures set forth in the Indenture. The Company will commence an Asset Sale Offer with respect to Excess Proceeds not later than ten business days after the date that Excess Proceeds exceed $10.0 million by providing the notice required pursuant to the terms of the Indenture, with a copy to the Trustee. After the completion of one or more Asset Sales (other than Asset Sales of Notes Collateral, which are governed by paragraph (a) of this Indenturecovenant), the Company and its Restricted Subsidiaries may, at their option, use the Net Proceeds thereof to make an Asset Sale Offer prior to the required deadline or with less Net Proceeds than would trigger the requirement for an Asset Sale Offer in order to satisfy the requirements of this paragraph (b) with respect to such Net Proceeds. To the extent that the aggregate principal amount of Notes and other Senior Indebtedness tendered (and electing to be redeemed or repaid, as applicablesuch Pari Passu Indebtedness) tendered pursuant to an Asset Sale Offer is less than the Excess Asset Sale Proceeds, the Company and its Restricted Subsidiaries may use any remaining Excess Asset Sale Proceeds for general corporate purposes purposes. If the aggregate principal amount of Notes (and any other purpose not prohibited such Pari Passu Indebtedness) surrendered by this Indentureholders 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 in the manner described below. Upon completion of the offer to purchaseany such Asset Sale Offer, the amount of Excess Proceeds which served as the basis for such Asset Sale Proceeds Offer shall be reset at reduced to 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 or regulations are applicable in connection with the repurchase of the Notes pursuant to a Notes Collateral Asset Sale Offer or an Asset Sale Offer. To the extent that the provisions of any securities laws or regulations conflict with the provisions of this Section 4.10the Indenture, the Company will comply with the applicable securities laws and regulations and will shall not be deemed to have breached its obligations under this Section 4.10 described in the Indenture by virtue thereof. If more Notes (and any Other Pari Passu Lien Obligations) are tendered pursuant to a Notes Collateral Asset Sale Offer than the Company is required to purchase, the principal amount of the Company’s Notes (and such Other Pari Passu Lien Obligations) to be purchased will be determined pro rata based on the principal amounts so tendered and the selection of the actual Notes for purchase will be made by the Trustee on a pro rata basis or by lot; provided, however, that no Notes (or any Other Pari Passu Lien Obligations) in a minimum denomination of $2,000 or less shall be purchased in part and the authorized denomination shall be maintained. If more Notes (and Pari Passu Indebtedness) are tendered pursuant to an Asset Sale Offer than the Company is required to purchase, the principal amount of the Notes (and Pari Passu Indebtedness) to be purchased will be determined pro rata based on the principal amounts so tendered and the selection of the actual Notes for purchase will be made by the Trustee on a pro rata basis or by lot; provided, however, that no Notes (or Pari Passu Indebtedness) in a minimum denomination of $2,000 or less shall be purchased in part and the authorized denomination shall be maintained. Notices of a Notes Collateral Asset Sale Offer or an Asset Sale Offer shall be sent by first class mail, postage prepaid or otherwise delivered in compliance with DTC’s procedures, at least 30 but not more than 60 days before the purchase date to each holder of Notes at such securities laws holder’s registered address. If any Note is to be purchased in part only, any notice of purchase that relates to such Note shall state the portion of the principal amount thereof that has been or regulationsis to be purchased.
Appears in 1 contract
Asset Sales. The Company will shall not, and will shall not permit any of its Restricted Subsidiaries to, consummate an Asset Sale unless:
unless (1i) the Company (or the Restricted Subsidiary, as the case may be, ) receives consideration at the time of the such Asset Sale at least equal to the Fair Market Value fair market value (measured as evidenced by a resolution of the date Board of Directors set forth in an Officers' Certificate delivered to the definitive agreement with respect to such Asset SaleTrustee) of the assets or Equity Interests issued or sold or otherwise disposed of; and
of and (2ii) at least 75% of the consideration therefor received in by the Company or such Asset Sale Restricted Subsidiary is in the form of cash or Cash Equivalentscash; provided that any the amount of the following items shall be deemed to be cash and Cash Equivalents for the purposes of this clause (2):
(ax) the assumption of any liabilities (as shown on the Company’s 's or the such Restricted Subsidiary’s 's most recent balance sheet) of the Company or any Restricted Subsidiary of the Company (other than contingent liabilities and liabilities that are by their terms subordinated to the Notes issued under this Indenture or any the Subsidiary GuaranteeGuarantees) that are assumed by the transferee of any such assets pursuant to a customary novation agreement that releases the Company or the such Restricted Subsidiary from further liability;
liability and (by) in the case of any Asset Sale constituting the transfer (by merger or otherwise) of all of the Capital Stock of a Restricted Subsidiary, any liabilities (as shown on such Restricted Subsidiary's most recent balance sheet) of such Restricted Subsidiary (other than contingent liabilities and liabilities that are by their terms subordinated to the Notes or the Subsidiary Guarantees) that will remain outstanding after such transfer and will not be a liability of the Company or any other Restricted Subsidiary of the Company following such transfer and (z) any securities, notes or other obligations 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 the such Restricted Subsidiary into cash or Cash Equivalents within 180 days following their receipt (to the extent of the cash or Cash Equivalents received); and
(c) any stock or assets of the kind referred , shall be deemed to in clauses (b) and (d) of the next paragraph be cash for purposes of this Section 4.10provision. Within 365 360 days after the receipt of any Net Proceeds from an Asset Sale, the Company or the Restricted Subsidiary, as the case may be, may apply such Net Proceeds, at its option:
, (a) to prepayrepay Senior Debt, repay, purchase, repurchase or redeem any secured Indebtedness of the Company or any Restricted Subsidiary of the Company;
(b) to acquire the acquisition of a controlling interest in another business or all or substantially all majority of the assets of, or operating line a majority of another businessthe Voting Stock of a Healthcare Related Business, in each case engaged the making of a capital expenditure or the acquisition of other long-term assets for use in a Permitted Business;
(c) to make capital expenditures; or
(d) to acquire other non-current assets to be used in a Permitted Healthcare Related Business. Pending the final application of any such Net Proceeds, the Company may temporarily reduce Indebtedness under any Credit Facility revolving credit borrowings or otherwise expend or invest such Net Proceeds in any manner that is not prohibited by this Indenture. Any Net Proceeds from Asset Sales described in this paragraph that are not applied or invested as provided in the first sentence of this paragraph of this Section 4.10 shall will be deemed to constitute “"Excess Asset Sale Proceeds.” " When the aggregate amount of Excess Asset Sale Proceeds exceeds $10.0 5.0 million, the Company will be required under this Indenture to make an offer to the all Holders of Notes issued thereunder and the holders of any other Senior Indebtedness that is subject to requirements with respect to the application of net proceeds from asset sales that are substantially similar to those contained in this Indenture (an “"Asset Sale Offer”") to purchase on a pro rata basis (with the Excess Asset Sale Proceeds prorated between the Holders of the Notes and such holders of such other Senior Indebtedness based upon outstanding aggregate principal amounts) the maximum principal amount of the Notes and such other Senior Indebtedness that may be purchased or prepaid, as applicable, out of the prorated Excess Asset Sale Proceeds, at an offer price in cash in an amount equal to 100% of the principal amount thereof plus accrued and unpaid interest thereon and Liquidated Damages thereon, if any, to the date of purchase, in accordance with the procedures set forth in this Indenture. To the extent that 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 other Senior Indebtedness tendered (and electing to be redeemed or repaid, as applicable) pursuant to an into such Asset Sale Offer is less than surrendered by Holders thereof exceeds the amount of Excess Asset Sale Proceeds, the Company and its Restricted Subsidiaries may use any remaining Excess Asset Sale Proceeds for general corporate purposes and any other purpose not prohibited by this IndentureTrustee shall select the Notes to be purchased on a pro rata basis. Upon completion of the such offer to purchase, the amount of Excess Asset Sale Proceeds shall 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 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, 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 the Company’s compliance with such securities laws or regulations.
Appears in 1 contract
Asset Sales. The Company will not, and will not permit any of its Restricted Subsidiaries Subsidiary to, consummate an Asset Sale unless:
(1a) 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 fair market value (measured as evidenced by a resolution of the date Board of Directors set forth in an Officers' Certificate delivered to the definitive agreement with respect to such Asset SaleTrustee) of the assets sold, leased, transferred, conveyed or otherwise disposed of or Equity Interests issued or sold of any Restricted Subsidiary issued, sold, transferred, conveyed or otherwise disposed of; and;
(2b) at least 75% of the consideration received in such the Asset Sale by the Company or such Restricted Subsidiary is in the form of cash or Cash Equivalents; provided that any of the following items shall be deemed to be cash and Cash Equivalents for the cash. For purposes of this clause (2):b), each of the following will be deemed to be cash:
(ai) the assumption of any liabilities (liabilities, as shown on the Company’s 's or the such Restricted Subsidiary’s 's most recent balance sheet) , of the Company or any Restricted Subsidiary of the Company (other than contingent liabilities and liabilities that are by their terms subordinated to Notes issued under this Indenture the notes or any Subsidiary Guarantee) that are assumed by the transferee of any such assets pursuant to a customary novation agreement that releases the Company or the such Restricted Subsidiary from further liability;
(bii) any securities, notes or other obligations received by the Company or any such Restricted Subsidiary from such transferee that are converted by the Company or the such Restricted Subsidiary into cash or Cash Equivalents within 180 days following their receipt (90 days, to the extent of the cash received in that conversion; and
(iii) with respect to any sale of Capital Stock of a Restricted Subsidiary to one or Cash Equivalents received)more Qualified Physicians, promissory notes or similar obligations from such physicians or health care professionals; provided that the aggregate amount of such promissory notes or other similar obligations held by the Company and its Restricted Subsidiaries shall not exceed $5.0 million outstanding at any one time; and
(c) any stock or assets of the kind referred Company delivers an Officers' Certificate to in the Trustee certifying that such Asset Sale complies with the foregoing clauses (ba) and (d) of the next paragraph of this Section 4.10b). Within 365 days after the receipt of any Net Proceeds from an Asset Sale, the Company or the Restricted Subsidiary, as the case may be, may apply such those Net Proceeds, Proceeds (or any portion thereof) at its option:
(a1) to prepay, repay, purchase, repurchase or redeem any secured Indebtedness repay Senior Debt of the Company and any Guarantor (other than Indebtedness owed to the Company, any Guarantor or any Restricted Subsidiary Affiliate of the Company) and, if the Senior Debt repaid is revolving credit Indebtedness, to correspondingly reduce commitments with respect thereto if so required pursuant to the terms of the Credit Agreement governing such revolving credit Indebtedness;
(b2) to acquire a controlling interest in another business or all or substantially all of the assets of, or operating line all of the Voting Stock of, another business, in each case Person engaged in a Permitted Business;
(c) to make capital expenditures; or
(d3) to acquire other nonlong-current term assets to be or property that are used in a Permitted Business. Business Pending the final application of any such Net Proceeds, the Company may temporarily reduce Indebtedness under any Credit Facility revolving credit borrowings or otherwise expend or invest such the Net Proceeds in any manner that is not prohibited by this Indenture. Any Net Proceeds from Asset Sales described in this paragraph that are not applied or invested as provided in the first sentence of this preceding paragraph of this Section 4.10 shall be deemed to will constitute “Excess Asset Sale Proceeds"EXCESS PROCEEDS.” " When the aggregate amount of Excess Asset Sale Proceeds exceeds $10.0 7.5 million, the Company will be required under this Indenture to make an offer to the all Holders of Notes issued thereunder and to purchase the holders maximum principal amount of Notes and, if the Company is required to do so under the terms of any other Senior Indebtedness that is subject to requirements pari passu with respect to the application of net proceeds from asset sales that are substantially similar to those contained in this Indenture (an “Asset Sale Offer”) to purchase Notes, such other Indebtedness on a pro rata basis (with the Excess Asset Sale Proceeds prorated between the Holders of the Notes and such holders of such other Senior Indebtedness based upon outstanding aggregate principal amounts) the maximum principal amount of the Notes and such other Senior Indebtedness Notes, that may be purchased or prepaid, as applicable, out of the prorated Excess Asset Sale Proceeds, at Proceeds (an "ASSET SALE OFFER"). The offer price in cash in an amount any Asset Sale Offer will be equal to 100% of the principal amount thereof plus accrued and unpaid interest thereon and Additional Interest, if any, to the date of purchase, and will be payable in accordance with cash. If any Excess Proceeds remain after consummation of the procedures set forth in purchase of all properly tendered and not withdrawn Notes pursuant to an Asset Sale Offer, the Company may use such remaining Excess Proceeds for any purpose not otherwise prohibited by this Indenture. To the extent that If the aggregate principal amount of Notes and other Senior pari passu Indebtedness tendered (and electing to be redeemed or repaid, as applicable) pursuant to an into such Asset Sale Offer is less than exceeds the amount of Excess Asset Sale Proceeds, the Company Trustee will select the Notes and its Restricted Subsidiaries may use any remaining Excess Asset Sale Proceeds for general corporate purposes and any such other purpose not prohibited by this Indenturepari passu Indebtedness to be purchased on a pro rata basis. Upon completion of the offer to purchaseeach Asset Sale Offer, the amount of Excess Asset Sale Proceeds shall will be reset at zero. The Company will comply with the requirements of Rule 14e-1 under the Exchange Act and any other securities laws and regulations thereunder to the extent such those laws and regulations are applicable in connection with 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 Section 4.10Indenture, 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 Section 4.10 Indenture by virtue of the Company’s compliance with such securities laws or regulationscompliance.
Appears in 1 contract
Asset Sales. The Company will not, and will not permit any of its Restricted Subsidiaries to, consummate an Asset Sale unless:
(1a) the Company or the a Restricted Subsidiary, as the case may be, receives consideration at the time of the Asset Sale at least equal to the Fair Market Value (measured as of the date of the definitive agreement with respect to such Asset Sale) of the assets or Equity Interests issued or sold or otherwise disposed of; , and
(2b) at least 75% of the consideration received for the assets sold by the Company or the Restricted Subsidiary, as the case may be, in such the Asset Sale is shall be in the form of (1) cash or Cash Equivalents; provided that any of the following items shall be deemed , (2) assets (other than current assets as determined in accordance with IFRS or Capital Stock) to be cash and Cash Equivalents for the purposes of this clause (2):
(a) the assumption of any liabilities (as shown on the Company’s or the Restricted Subsidiary’s most recent balance sheet) of used by the Company or any Restricted Subsidiary in a Permitted Business, (3) Capital Stock in a Person engaged primarily in a Permitted Business that will become a Restricted Subsidiary as a result of the Company such Asset Sale, (other than liabilities that are by their terms subordinated to Notes issued under this Indenture or any Subsidiary Guarantee4) by the transferee of any such assets Indebtedness assumed pursuant to a customary novation agreement (5) to the extent not otherwise included in (4), the Fair Market Value of the discharge of any Lien granted by the Company or any Restricted Subsidiary in connection with the Asset Sale or (6) a combination of any of the foregoing. The Company and one or more Restricted Subsidiaries, as the case may be, may apply within 180 days of any Asset Sale an amount equal to the Net Cash Proceeds from any such Asset Sale to, at its option:
(a) prepay, repay or purchase any (i) Indebtedness constituting Obligations under any ALB Credit Facility, to the extent such Net Cash Proceeds are derived from ALB Assets and/or, (ii) to the extent such Net Cash Proceeds are derived from assets not securing any ALB Credit Facility, first, Priority Lien Obligations to the extent of the Priority Liens, and second, on a pro rata basis, the Securities, Obligations under the Working Capital Facility, Obligations under the Stub Notes and any First Lien Obligations;
(b) purchase or enter into a binding contract to purchase within 180 days of such Asset Sale (provided, that releases such purchase pursuant to such a binding contract must be consummated within 270 days of such Asset Sale):
(1) assets (other than current assets as determined in accordance with IFRS or Capital Stock) to be used by the Company or any Restricted Subsidiary in a Permitted Business, or
(2) Capital Stock of a Person engaged in a Permitted Business that will become, upon purchase, a Restricted Subsidiary, in each case, from a Person other than the Company and its Restricted Subsidiaries; provided that if the asset being sold or otherwise disposed was Collateral immediately prior to the sale or disposition thereof, such asset under clause (1) or the asset of such Person, the Capital Stock of which was acquired under clause (2) shall become Collateral; provided, further, that (A) if the Net Cash Proceeds used to consummate such purchase are derived from Collateral owned by the Company, any Subsidiary Guarantor or any Restricted Subsidiary, that the assets or Capital Stock purchased hereunder shall be directly owned by the Company, a Subsidiary Guarantor or a Restricted Subsidiary that is in each case not an ALB Entity and, (B) if the Net Cash Proceeds used to consummate such purchase are derived from ALB Assets, that the assets or Capital Stock purchased hereunder shall be directly or indirectly owned by any ALB Entity. For the avoidance of doubt, any purchase under this clause (b) must be made solely with Net Cash Proceeds referred to in either (but not both of) clauses (A) or (B) hereunder; or
(c) to make Capital Expenditures or enter into a binding contract to make Capital Expenditures within 180 days of such Asset Sale (provided, that Capital Expenditures pursuant to such a binding contract are made within 270 days of such Asset Sale); provided that if the asset disposed of constituted Collateral immediately prior to its disposition, such Capital Expenditures shall be made on an asset that is part of the Collateral. Notwithstanding the foregoing, the Company may elect to deem up to U.S.$65 million of Capital Expenditures (less any deemed amounts made pursuant to an election under Section 3.11(2)(y)(i)) that is made (A) on an asset that is part of the Collateral and (B) between May 31, 2019 and June 30, 2020, as having been reinvested in accordance with the provisions of this clause (c) with respect to any Asset Sale that is consummated on or prior to June 30, 2020 despite such Capital Expenditure being made prior to the receipt of the Net Cash Proceeds from such Asset Sale. Notwithstanding the foregoing, if an Asset Sale is the result of an involuntary expropriation, nationalization, taking or similar action by or on behalf of any Governmental Authority, such Asset Sale need not comply with clauses (a) and (b) of the first paragraph of this covenant. In addition, the proceeds of any such Asset Sale shall not be deemed to have been received (and the 180-day period in which to apply any Net Cash Proceeds shall not begin to run) until the proceeds to be paid by or on behalf of the Governmental Authority have been paid in cash to the Company or the Restricted Subsidiary from further liability;
(b) making such Asset Sale and if any litigation, arbitration or other action is brought contesting the validity of or any other matter relating to any such expropriation, nationalization, taking or other similar action, including the amount of the compensation to be paid in respect thereof, until such litigation, arbitration or other action is finally settled or a final judgment or award has been entered and any such judgment or award has been collected in full. For the purpose of this Section 4.10, any securities, notes or other obligations received by the Company or any such Restricted Subsidiary from such transferee will be deemed to be cash to the extent, and in the amount, that they are converted by the Company or the such Restricted Subsidiary into cash or Cash Equivalents within 180 90 days following their of the receipt thereof (subject to ordinary settlement periods). The Fair Market Value of the discharge of any Lien in connection with a foreclosure will be deemed to be the price received in connection with such foreclosure. To the extent of cash or there are any remaining Net Cash Equivalents received); and
Proceeds that have not been applied as described in clauses (a) through (c) any stock or assets of the kind referred to in clauses (b) and (d) of the next third preceding paragraph of this Section 4.10. Within 365 180 days after the receipt of any Net Proceeds from an Asset Sale, the Company or the Restricted Subsidiary, as the case may be, may apply such Net Proceeds, at its option:
(a) to prepay, repay, purchase, repurchase or redeem any secured Indebtedness of the Company or any Restricted Subsidiary of the Company;
(b) to acquire a controlling interest in another business or all or substantially all of the assets or operating line of another business, in each case engaged in a Permitted Business;
(c) to make capital expenditures; or
(d) to acquire other non-current assets to be used in a Permitted Business. Pending the final application of any such Net Proceeds, the Company may temporarily reduce Indebtedness under any Credit Facility or otherwise expend or invest such Net Proceeds in any manner that is not prohibited by this Indenture. Any Net Proceeds from Asset Sales described in this paragraph that are not applied or invested as provided in the first sentence of this paragraph of this Section 4.10 shall be deemed to constitute “Excess Asset Sale Proceeds.” When the aggregate amount of Excess Asset Sale Proceeds exceeds $10.0 million, the Company will be required under this Indenture to make an offer to the Holders of Notes issued thereunder and the holders of any other Senior Indebtedness that is subject to requirements with respect to the application of net proceeds from asset sales that are substantially similar to those contained in this Indenture purchase Securities (an “Asset Sale Offer”) to purchase on a pro rata basis (with the Excess Asset Sale Proceeds prorated between the Holders of the Notes and such holders of such other Senior Indebtedness based upon outstanding aggregate principal amounts) the maximum principal amount of the Notes and such other Senior Indebtedness that may be purchased or prepaid, as applicable, out of the prorated Excess Asset Sale Proceeds), at an offer a purchase price in cash in an amount equal to 100% of the principal amount thereof of the Securities to be purchased, plus accrued and unpaid interest thereon (including an amount of cash equal to all accrued and unpaid PIK Interest) to, but excluding, the date of purchase, in accordance with purchase (the procedures set forth in this Indenture“Asset Sale Offer Amount”). To the extent that the aggregate principal amount of Notes and other Senior Indebtedness tendered (and electing to be redeemed or repaid, as applicable) The Company shall purchase pursuant to an Asset Sale Offer is less than from all tendering Holders on a pro rata basis and, at the Excess Company’s option, on a pro rata basis with the holders of any Indebtedness under the Working Capital Facility, the Stub Notes and/or First Lien Obligations that principal amount (or accreted value in the case of Indebtedness issued with original issue discount) to be purchased equal to such remaining Net Cash Proceeds. The Company may satisfy its obligations under this covenant with respect to the remaining Net Cash Proceeds of an Asset Sale by making an Asset Sale Offer prior to the expiration of the relevant 180-day period. Notwithstanding the foregoing, the Company may defer an Asset Sale Offer until there is an aggregate amount of remaining Net Cash Proceeds from one or more Asset Sales equal to or in excess of U.S.$10.0 million (or the equivalent in other currencies). At that time, the entire amount of remaining Net Cash Proceeds, and not just the amount in excess of U.S.$10.0 million (or the equivalent in other currencies), will be applied as required pursuant to this Section 4.10. Pending the final application of any Net Cash Proceeds, the Company and its Restricted Subsidiaries may use any remaining Excess shall deposit such Net Cash Proceeds in an account in which the Collateral Trustee has a perfected security interest for the benefit of the applicable Secured Parties in accordance with the applicable Lien priorities described in the Intercreditor Agreement. Each notice of an Asset Sale Proceeds Offer shall be provided to the Holders within 30 days following such 180th day, with a copy to the Trustee, offering to purchase the Securities as described above. Each notice of an Asset Sale Offer shall state, among other things, the purchase date, which must be no earlier than the Asset Sale Offer Payment Date. Upon receiving notice of an Asset Sale Offer, Holders may elect to tender their Securities in whole or in part in integral multiples of U.S.$1.00 in exchange for general corporate purposes cash; provided that the principal amount of such tendering Holder’s Security shall not be less than U.S.$2,000 (or if a payment of PIK Interest has been made, the Securities shall be in minimum denominations of U.S.$1.00 and any other purpose integral multiple of U.S.$1.00 in excess thereof). On the Asset Sale Offer Payment Date, the Company shall, to the extent lawful:
(1) accept for payment all Securities or portions thereof properly tendered to the Depository and applicable Paying Agent appointed by the Company, and not prohibited withdrawn pursuant to the Asset Sale Offer;
(2) deposit with the applicable Paying Agent funds in an amount equal to the Asset Sale Offer Amount in respect of all Securities or portions thereof so tendered and not withdrawn; and
(3) deliver or cause to be delivered to the Trustee the Securities so accepted together with an Officer’s Certificate stating the aggregate principal amount of Securities or portions thereof being purchased by this Indenturethe Company. Upon completion To the extent holders of Securities or Obligations under the offer to purchaseWorking Capital Facility, Stub Notes or First Lien Obligations, which are the subject of an Asset Sale Offer properly tender and do not withdraw their Securities or such Indebtedness in an aggregate amount exceeding the amount of Excess remaining Net Cash Proceeds, the Company shall purchase such Securities and such Indebtedness on a pro rata basis (based on amounts tendered and subject to the applicable authorized denomination requirements) as set forth above. If only a portion of a Security is purchased pursuant to an Asset Sale Proceeds Offer, a new Security in a principal amount equal to the portion thereof not purchased shall be reset at zeroissued, and upon receipt of an Authentication Order the Trustee shall authenticate in the name of the Holder thereof upon cancellation of the original Security (or appropriate adjustments to the amount and beneficial interests in a Global Note will be made, as appropriate). The Company will shall comply with the requirements of Rule 14e-1 under the Exchange Act and any other applicable securities laws and regulations thereunder to the extent such laws and regulations are applicable in connection with the purchase of Securities pursuant to an Asset Sale Offer. To the extent that the provisions of any applicable securities laws or regulations conflict with the provisions of Section 3.09 hereof or this Section 4.10, the Company will shall comply with the applicable securities these laws and regulations and will shall not be deemed to have breached its obligations under Section 3.09 hereof or this Section 4.10 by virtue of such compliance. If it would be unlawful in any jurisdiction to make an Asset Sale Offer, the Company shall not be obligated to make such offer in such jurisdiction and shall not be deemed to have breached its obligations under this Section 4.10 Indenture by virtue doing so. Upon completion of an Asset Sale Offer, the Company’s compliance with such securities laws or regulationsamount of remaining Net Cash Proceeds will be reset at zero. Accordingly, to the extent that the aggregate amount of Securities and other Indebtedness tendered pursuant to an Asset Sale Offer is less than the aggregate amount of remaining Net Cash Proceeds, the Company may use any remaining Net Cash Proceeds in any manner not otherwise prohibited by this Indenture.
Appears in 1 contract
Samples: Indenture (Arazi S.a r.l.)
Asset Sales. (a) The Company will shall not, and will shall not permit any of its Restricted Subsidiaries to, consummate an Asset Sale unless:
(1i) the Company (or the Restricted Subsidiary, as the case may be, ) receives consideration at the time of the such Asset Sale at least equal to the Fair Market Value (measured as determined by the Board of the date of the definitive agreement with respect to such Asset SaleDirectors) of the assets or Equity Interests issued or sold or otherwise disposed of; provided that this clause (i) shall not apply to an Asset Sale resulting solely from a foreclosure or sale by a third party upon assets or property subject to a Lien not prohibited by this Indenture;
(ii) where such Fair Market Value exceeds $25.0 million, the Company’s Board of Directors’ determination of such Fair Market Value is set forth in an Officers’ Certificate delivered to the Trustee; and
(2iii) at least 75% of the consideration therefor received in by the Company or such Asset Sale Restricted Subsidiary is in the form of cash Cash Equivalents or Cash Equivalents; provided that any Replacement Assets or a combination thereof. For purposes of this provision, each of the following items shall be deemed to be cash and Cash Equivalents for the purposes of this clause (2):Equivalents:
(aA) the assumption of any liabilities (as shown on the Company’s or the such Restricted Subsidiary’s most recent balance sheet, or would be shown on the Company’s or such Restricted Subsidiary’s balance sheet on the date of such Asset Sale) of the Company or any Restricted Subsidiary of the Company (other than liabilities contingent liabilities, Indebtedness that are is by their its terms subordinated to the Notes issued under this Indenture or any Subsidiary GuaranteeNote Guarantee and liabilities to the extent owed to the Company or any Affiliate of the Company) that are assumed by the transferee of any such assets pursuant to a customary novation written agreement that releases the Company or the such Restricted Subsidiary from further liability;liability therefor; and
(bB) any securities, notes or other obligations received by the Company or any such Restricted Subsidiary from such transferee that are converted (including by way of any Monetization Transaction) by the Company or the such Restricted Subsidiary into cash or Cash Equivalents within 180 days following their receipt (to the extent of the cash or Cash Equivalents received); andreceived in that conversion) within 120 days of such Asset Sale.
(c) any stock or assets of the kind referred to in clauses (b) and (d) of the next paragraph of this Section 4.10. Within 365 360 days after the receipt of any Net Proceeds from an Asset Sale, the Company or the Restricted Subsidiary, as the case may be, may apply such Net Proceeds, Proceeds at its option:
(ai) to prepay, repay, purchase, repurchase or redeem any repay unsubordinated secured Indebtedness and, if the Indebtedness repaid is revolving credit Indebtedness, to correspondingly reduce commitments with respect thereto;
(ii) to acquire all or substantially all of the Company assets of, or any a majority of the Voting Stock of, another Permitted Business (including by means of a merger, consolidation or other business combination permitted under this Indenture) to be held, commencing on the date of such acquisition, as or in a Restricted Subsidiary of the Company;
(biii) to acquire a controlling interest in another business pay for or all or substantially all of the assets or operating line of another business, in each case engaged in a Permitted Business;
(c) to make capital expenditurespurchase Replacement Assets; or
(div) to acquire other non-current assets to be used in a Permitted Businessany combination of the foregoing. Pending the final application of any such Net Proceeds, the Company may temporarily reduce Indebtedness under any Credit Facility revolving credit borrowings or otherwise expend or invest such Net Proceeds in any manner that is not prohibited by this Indenture. .
(c) Any Net Proceeds from Asset Sales described in this paragraph that are not applied or invested as provided in the first sentence of this paragraph of this Section 4.10 4.10(b) above shall be deemed to constitute “Excess Asset Sale Proceeds.” When Within 30 days after the aggregate amount of Excess Asset Sale Proceeds exceeds $10.0 25.0 million, the Company will be required under this Indenture to shall make an Asset Sale offer to the Holders of Notes issued thereunder and the holders of any other Senior Indebtedness that is subject to requirements with respect to the application of net proceeds from asset sales that are substantially similar to those contained in this Indenture (an “Asset Sale Offer”) to purchase on a pro rata basis (all Holders of Notes and all holders of other Indebtedness that is pari passu with the Excess Asset Sale Proceeds prorated between Notes or any Note Guarantee containing provisions similar to those set forth by this Indenture with respect to offers to purchase with the Holders proceeds of sales of assets, to purchase the maximum principal amount of Notes and such holders other pari passu Indebtedness that may be purchased out of such other Senior Indebtedness based upon outstanding aggregate principal amounts) the maximum Excess Proceeds. The offer price in any Asset Sale Offer shall be equal to 100% of the principal amount of the Notes and such other Senior pari passu Indebtedness that may be purchased or prepaid, as applicable, out of the prorated Excess Asset Sale 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, and shall be payable in accordance with cash. If any Excess Proceeds remain after consummation of an Asset Sale Offer, the procedures set forth in Company may use such Excess Proceeds for any purpose not otherwise prohibited by this Indenture. To the extent that If the aggregate principal amount of Notes and such other Senior pari passu Indebtedness tendered (and electing to be redeemed or repaid, as applicable) pursuant to an into such Asset Sale Offer is less than exceeds the amount of Excess Asset Sale Proceeds, the Company Notes and its Restricted Subsidiaries may use any remaining Excess Asset Sale Proceeds for general corporate purposes such other pari passu Indebtedness shall be purchased on a pro rata basis based on the principal amount of Notes and any such other purpose not prohibited by this Indenturepari passu Indebtedness tendered. Upon completion of the offer to purchaseeach Asset Sale Offer, the amount of Excess Asset Sale Proceeds shall be reset at zero. .
(d) The Company will shall comply with the requirements of Rule 14e-1 under the Exchange Act and any other securities laws and regulations thereunder to the extent such laws and regulations are applicable in connection with 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 Offer provisions of this Section 4.10Indenture, the Company will shall comply with the applicable securities laws and regulations and will shall not be deemed to have breached its obligations under the Asset Sale Offer provisions of this Section 4.10 Indenture by virtue of the Company’s compliance with such securities laws or regulationscompliance.
Appears in 1 contract
Asset Sales. The Company will not, and will not permit any of its Restricted Subsidiaries to, consummate an Asset Sale unless:
(1) the Company (or the Restricted Subsidiary, as the case may be, ) receives consideration at the time of the Asset Sale at least equal to the Fair Market Value (measured as of the date of the definitive agreement with respect to such Asset Sale) of the assets or Equity Interests issued or sold or otherwise disposed of; and
(2) at least 75% of the consideration received in such the Asset Sale by the Company or such Restricted Subsidiary is in the form of cash or Cash Equivalents; provided that any cash. For purposes of this provision, each of the following items shall will be deemed to be cash and Cash Equivalents for the purposes of this clause (2):cash:
(a) the assumption of any liabilities (liabilities, as shown on the Company’s or the Restricted Subsidiary’s 's most recent consolidated balance sheet) , of the Company or any Restricted Subsidiary of the Company (other than contingent liabilities and liabilities that are by their terms subordinated to the Notes issued under this Indenture or any Subsidiary Note Guarantee) that are assumed by the transferee of any such assets pursuant to a customary novation agreement that releases the Company or the such Restricted Subsidiary from further liability;
(b) any securities, notes or other obligations received by the Company or any such Restricted Subsidiary from such transferee that are contemporaneously, subject to ordinary settlement periods, converted by the Company or the such Restricted Subsidiary into cash or Cash Equivalents within 180 days following their receipt (cash, to the extent of the cash or Cash Equivalents received)received in that conversion; and
(c) any stock or assets of the kind referred to in clauses (b2) and or (d4) of the next paragraph of this Section 4.10. Within 365 360 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 those Net Proceeds, at its option:
(a1) to prepayrepay Indebtedness and other Obligations under Credit Facilities and, repayif the Indebtedness repaid is revolving credit Indebtedness, purchase, repurchase or redeem any secured Indebtedness of the Company or any Restricted Subsidiary of the Companyto correspondingly permanently reduce commitments with respect thereto;
(b2) to acquire a controlling interest in another business or all or substantially all of the assets of, or operating line of any Capital Stock of, another business, in each case engaged in a 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, if the Company, within 360 days after the receipt of any Net Proceeds from an Asset Sale enters into a written and binding agreement for such acquisition, the Company may apply those Net Proceeds toward such acquisition provided such acquisition is consummated within 18 months of such Asset Sale;
(c3) to make a capital expendituresexpenditure; or
(d4) to acquire other non-assets that are not classified as current assets to be under GAAP and that are used or useful in a Permitted Business. Pending the final application of any such Net Proceeds, the Company may temporarily reduce Indebtedness under any Credit Facility revolving credit borrowings or otherwise expend or invest such the Net Proceeds in any manner that is not prohibited by this Indenture. Any Net Proceeds from Asset Sales described in this paragraph that are not applied or invested as provided in the first sentence of this preceding paragraph of this Section 4.10 shall be deemed to will constitute “"Excess Asset Sale Proceeds.” " When the aggregate amount of Excess Asset Sale Proceeds exceeds $10.0 25.0 million, the Company will be required under this Indenture to make an offer Asset Sale Offer to the all Holders of Notes issued thereunder and the all holders of any other Senior Indebtedness that is subject pari passu with the Notes containing provisions similar to requirements those set forth in this Indenture with respect to the application of net proceeds from asset sales that are substantially similar to those contained in this Indenture (an “Asset Sale Offer”) offers to purchase on a pro rata basis (or redeem with the Excess Asset Sale Proceeds prorated between the Holders proceeds of the Notes and such holders sales of such other Senior Indebtedness based upon outstanding aggregate principal amounts) assets to purchase the maximum principal amount of the Notes and such other Senior pari passu Indebtedness that may be purchased or prepaid, as applicable, out of the prorated Excess Asset Sale Proceeds, at an . The offer price in cash in an amount any Asset Sale Offer will be equal to 100% of the principal amount thereof plus accrued and unpaid interest thereon and Liquidated Damages, if any, to the date of purchase, and will be payable in accordance with cash. If any Excess Proceeds remain after consummation of an Asset Sale Offer, the procedures set forth in Company may use those Excess Proceeds for any purpose not otherwise prohibited by this Indenture. To the extent that If the aggregate principal amount of Notes and other Senior pari passu Indebtedness tendered (and electing to be redeemed or repaid, as applicable) pursuant to an into such Asset Sale Offer is less than exceeds the amount of Excess Asset Sale Proceeds, the Company Trustee will select the Notes and its Restricted Subsidiaries may use any remaining Excess Asset Sale Proceeds for general corporate purposes and any such other purpose not prohibited by this Indenturepari passu Indebtedness to be purchased on a pro rata basis. Upon completion of the offer to purchaseeach Asset Sale Offer, the amount of Excess Asset Sale Proceeds shall will be reset at zero. The Company will comply with the requirements of Rule 14e-1 under the Exchange Act and any other securities laws and regulations thereunder to the extent such those laws and regulations are applicable in connection with 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 Section 4.10Indenture, the Company will shall 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 Section 4.10 Indenture by virtue of such conflict. The Company's future agreements may contain prohibitions of certain events, including events that would constitute a Change of Control or an Asset Sale and including repurchases of or other prepayments in respect of the Notes. The exercise by the Holders of Notes of their right to require the Company to repurchase the Notes upon a Change of Control or an Asset Sale could cause a default under these other agreements, even if the Change of Control or Asset Sale itself does not, due to the financial effect of such repurchases on the Company’s compliance with . In the event a Change of Control or Asset Sale occurs at a time when the Company is prohibited from purchasing Notes, the Company could seek the consent of its senior lenders to the purchase of Notes or could attempt to refinance the borrowings that contain such securities laws prohibition. If the Company does not obtain a consent or regulationsrepay those borrowings, the Company will remain prohibited from purchasing Notes. In that case, the Company's failure to purchase tendered Notes would constitute an Event of Default under this Indenture which may, in turn, constitute a default under our other future indebtedness. Finally, the Company's ability to pay cash to the Holders of Notes upon a repurchase may be limited by the Company's then existing financial resources.
Appears in 1 contract
Asset Sales. The Company will not, and will not permit any of its Restricted Subsidiaries to, consummate an Asset Sale unless:
(1a) the Company (or the 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 the Asset Sale at least equal to the Fair Market Value (measured as of the date of the definitive agreement with respect to such Asset Sale) of the assets or Equity Interests issued or sold or otherwise disposed of; and
(2b) at least 75% of the aggregate consideration received in such the Asset Sale by the Company or a Restricted Subsidiary and all other Asset Sales since the Escrow Release Date, on a cumulative basis, is in the form of cash or Cash Equivalents; provided that any . For purposes of this provision, each of the following items shall will be deemed to be cash and Cash Equivalents for the purposes of this clause (2):cash:
(a1) the assumption of any liabilities (liabilities, as shown on the Company’s or the Restricted Subsidiary’s most recent consolidated balance sheet) , of the Company or any Restricted Subsidiary of the Company (other than contingent liabilities and liabilities that are by their terms subordinated to the Notes issued under this Indenture or any Subsidiary Note Guarantee) that are assumed or novated by the transferee or that are otherwise cancelled, forgiven or terminated in connection with the transaction with such transfer;
(2) with respect to any Asset Sale of any such assets pursuant to a customary novation agreement that releases oil and natural gas properties by the Company or the any Restricted Subsidiary from further liabilitywhere the Company or such Restricted Subsidiary retains an interest in such property, costs and expenses related to the exploration, development, completion or production of such properties and activities related thereto which the transferee (or an Affiliate thereof) agrees to pay;
(b3) any securities, notes or other obligations received by the Company or any such Restricted Subsidiary from such transferee that are are, within 180 days of the Asset Sale, converted by the Company or the such Restricted Subsidiary into cash or Cash Equivalents within 180 days following their receipt (cash, to the extent of the cash or Cash Equivalents received); andreceived in that conversion;
(c4) any stock Capital Stock or assets of the kind referred to in clauses clause (b2) or (4) of Section 4.10(c); and
(5) any Designated Non-cash Consideration received by the Company or such Restricted Subsidiary in such Asset Sale having an aggregate Fair Market Value, taken together with all other Designated Non-cash Consideration received pursuant to this clause (5), not to exceed an amount equal to the greater of (x) $35.0 million and (d) y)5.0% of the next paragraph Company’s Adjusted Consolidated Net Tangible Assets (determined at the time of this Section 4.10. receipt of such Designated Non-cash Consideration), with the Fair Market Value of each item of Designated Non-cash Consideration being measured at the time received and without giving effect to subsequent changes in value.
(c) Within 365 days after the receipt of any Net Proceeds from an Asset Sale, the Company (or the any Restricted Subsidiary, as the case may be, ) may apply an amount equal to such Net Proceeds, Proceeds at its optionoption to any combination of the following:
(a1) to prepay, repay, purchase, repurchase or redeem any secured 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;
(b) to acquire a controlling interest in another business or all or substantially all of the assets or operating line of another business, in each case engaged in a Permitted Business;
(c3) to make capital expendituresexpenditures in respect of the Company’s or any Restricted Subsidiaries’ Oil and Gas Business; or
(d4) to acquire other non-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 used 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 a Permitted Businessthe 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 such Net Proceeds, the Company (or any Restricted Subsidiary) may temporarily reduce Indebtedness under any Credit Facility or otherwise expend or invest such the Net Proceeds in any manner that is not prohibited by this Indenture. Any The amount equal to the Net Proceeds from Asset Sales described in this paragraph that are not applied or invested as provided in the first sentence of this paragraph of this Section 4.10 shall be deemed to 4.10(c) will constitute “Excess Asset Sale Proceeds.” ”. When the aggregate amount of Excess Asset Sale Proceeds exceeds $10.0 35.0 million, within ten business days thereof, the Company will be required under this Indenture to make an offer to the Holders of Notes issued thereunder and the holders of any other Senior Indebtedness that is subject to requirements with respect to the application of net proceeds from asset sales that are substantially similar to those contained in this Indenture (an “Asset Sale Offer”) to purchase on a pro rata basis (with the Excess Asset Sale Proceeds prorated between the all Holders of the Notes and such all holders of such other Senior Indebtedness based upon outstanding aggregate principal amounts) 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, 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 the Notes and such other Senior 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 purchased, prepaid or prepaid, as applicable, redeemed out of the prorated Excess Proceeds. The Company may satisfy the foregoing obligations with respect to any Net Proceeds from an Asset Sale Proceeds, at by making an Asset Sale 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 or a part of the available Net Proceeds (the “Advance Portion”) in advance of being required to do so by this Indenture (an “Advance Offer”). The offer price in cash in an amount any Asset Sale Offer will be equal to 100% of the principal amount thereof amount, plus accrued and unpaid interest thereon to interest, if any, to, but excluding, the 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 payable in accordance with cash. If any Excess Proceeds (or in the procedures set forth in case of an Advance Offer, Advance Portion) remain after consummation of an Asset Sale Offer, the Company or any Restricted Subsidiary may use those Excess Proceeds (or Advance Portion) for any purpose not otherwise prohibited by this Indenture. To the extent that If the aggregate principal amount of Notes and other Senior Indebtedness tendered (and electing to be redeemed or repaid, as applicable) pursuant to an in such Asset Sale Offer is less than exceeds the amount of Excess Asset Sale ProceedsProceeds (or in the case of an Advance Offer, the Company and Advance Portion) allocated to the purchase of Notes, the Trustee will select the Notes to be purchased on a pro rata basis or by lot (except that any Notes represented by a Note in global form will be selected by such method as DTC or its Restricted Subsidiaries nominee or successor may use any remaining Excess Asset Sale Proceeds for general corporate purposes and any other purpose not prohibited require), based on the amounts tendered (with such adjustments as may be deemed appropriate by this Indenturethe 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 the offer to purchaseeach Asset Sale Offer (or Advance Offer), the amount of Excess Asset Sale Proceeds shall (or Advance Portion) will be reset at zero. The Company will comply with the requirements of Rule 14e-1 under the Exchange Act and any other securities laws and regulations thereunder to the extent such those laws and regulations are applicable in connection with each repurchase of Notes pursuant to an Asset Sale Offer or Advance Offer. To the extent that the provisions of any securities laws or regulations conflict with the provisions of Section 3.09 or this Section 4.10, the Company 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 4.10 by virtue of the Company’s compliance with such securities laws or regulationscompliance.
Appears in 1 contract
Samples: Indenture (Penn Virginia Corp)
Asset Sales. The Company will shall not, and will shall not permit any of its Restricted Subsidiaries to, consummate cause, make or suffer to exist an Asset Sale unless:
unless (1i) the Company (or the Restricted Subsidiary, as the case may be, ) receives consideration at the time of the such Asset Sale at least equal to the Fair Market Value fair market value (measured as evidenced by a resolution of the date Board of Directors set forth in an Officers' Certificate delivered to the definitive agreement with respect to such Asset SaleTrustee) of the assets or Equity Interests issued or sold or otherwise disposed of; and
of and (2ii) at least 7580% of the consideration therefor received in by the Company or such Asset Sale Restricted Subsidiary is in the form of cash or Cash Equivalents; provided that any the amount of the following items shall be deemed to be cash and Cash Equivalents for the purposes of this clause (2):
(ax) the assumption of any liabilities (as shown on the Company’s 's or the such Restricted Subsidiary’s 's most recent balance sheet) of the Company or any Restricted Subsidiary of the Company (other than contingent liabilities and liabilities that are by their terms subordinated to the Senior Subordinated Notes issued under this Indenture or any Subsidiary Guaranteeguarantee thereof) that are assumed by the transferee of any such assets pursuant to a customary novation agreement that releases the Company or the such Restricted Subsidiary from further liability;
, (by) any securities, Excludable Current Liabilities and (z) any notes or other obligations received by the Company or any such Restricted Subsidiary from such transferee that are immediately converted by the Company or the such Restricted Subsidiary into cash or Cash Equivalents within 180 days following their receipt (to the extent of the cash or Cash Equivalents received); and
(c) any stock or assets of the kind referred , shall be deemed to in clauses (b) and (d) of the next paragraph be cash for purposes of this Section 4.10provision. Within 365 days after the Company's or any Restricted Subsidiary's receipt of any the Net Proceeds from an of any Asset SaleSale (or, in the 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 the such Restricted Subsidiary, as the case may be, Subsidiary may apply the Net Proceeds from such Net ProceedsAsset Sale, at its option:
, (ai) to prepaypermanently repay or reduce Obligations under the Bank Credit Agreement (and to correspondingly reduce commitments with respect thereto) or other Senior Debt, repay, purchase, repurchase or redeem any secured Indebtedness of the Company or any Restricted Subsidiary of the Company;
(bii) to acquire a controlling interest secure Letter of Credit Obligations to the extent related letters of credit have not been drawn upon or returned undrawn and/or (iii) to an investment in another business any one or all more businesses, capital expenditures or substantially all acquisitions of the assets or operating line of another businessother assets, in each case engaged case, used or useful in a Permitted Principal Business;
; provided that such Net Proceeds may, at the Company's option, be deemed to have been applied pursuant to clause (ciii) to make capital expenditures; or
(d) the extent of any expenditures by the Company made to invest in, acquire other non-current or construct businesses, properties or assets to be used in a Permitted Businessthe 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 any Credit Facility a revolving credit facility, if any, or otherwise expend or invest such Net Proceeds in any manner that is not prohibited by this IndentureCash Equivalents. Any Net Proceeds from the Asset Sales described in this paragraph Sale that are not applied or invested as provided and within the time period set forth in the first sentence of this paragraph of this Section 4.10 shall be deemed to constitute “"Excess Asset Sale Proceeds.” " When the aggregate amount of Excess Asset Sale Proceeds exceeds $10.0 15.0 million, the Company will be required under this Indenture shall make offers to make an offer to the all Holders of Senior Subordinated Notes issued thereunder and the to holders of any other Senior Indebtedness that is subject to requirements with respect to Subordinated Indebtedness, the application terms of net proceeds from asset sales that are substantially similar to those contained in this Indenture which so require (each an “"Asset Sale Offer”) "), to purchase on a pro rata basis (with the Excess Asset Sale Proceeds prorated between the Holders of the Notes and such holders of such other Senior Indebtedness based upon outstanding aggregate principal amounts) the maximum principal amount of the Senior Subordinated Notes and such other Senior Indebtedness Subordinated Indebtedness, that is an integral multiple of $1,000, that may be purchased or prepaid, as applicable, out of the prorated Excess Asset Sale Proceeds, 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 interest, including Liquidated Damages, if any, thereon to the date fixed for the closing of purchase, such offer in accordance with the procedures set forth in this IndentureSection 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 Offer 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 principal amount of Senior Subordinated Notes (and other Senior Indebtedness Subordinated Indebtedness) tendered (and electing to be redeemed or repaid, as applicable) pursuant to an any required Asset Sale Offer is less than the Excess Asset Sale ProceedsProceeds allocated thereto, the Company and its Restricted Subsidiaries may use any remaining Excess Proceeds (x) to offer to redeem or purchase other Senior Subordinated Indebtedness or Subordinated Indebtedness (a "Subordinated Asset Sale Proceeds Offer") in accordance with the provisions of the indenture or other agreement governing such other Senior Subordinated Indebtedness or Subordinated Indebtedness or (y) for general corporate purposes and any other purpose not prohibited by this Indentureany provision herein. If the aggregate principal amount of Senior Subordinated Notes tendered pursuant to any Asset Sale Offer exceeds the amount of Excess Proceeds allocated thereto, the Trustee shall select the Senior Subordinated Notes to be purchased on a pro rata basis, based upon the principal amount of Senior Subordinated Notes tendered. Upon completion of the offer to purchaseany such Asset Sale Offer, the amount of Excess Asset Sale 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 such other Senior Subordinated Indebtedness to the prepayment, redemption or public or private repurchase of such Senior Subordinated Indebtedness. The Company will shall comply with the requirements of Rule 14e-1 under the Exchange Act and any other securities laws and regulations thereunder to the extent such laws and regulations are applicable in connection with the repurchase of the Senior Subordinated Notes as a result of 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, 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 the Company’s compliance with such securities laws or regulationsSale.
Appears in 1 contract
Samples: Indenture (JCS Realty Corp)
Asset Sales. (a) The Company will shall not, and will shall not permit any of its Restricted Subsidiaries to, consummate an Asset Sale unless:
unless (1i) the Company (or the Restricted Subsidiary, as the case may be, ) receives consideration at the time of the such Asset Sale at least equal to the Fair Market Value (measured as of the date of the definitive agreement determined in accordance with respect to such Asset SaleSection 4.10(c) hereof) of the assets or Equity Interests issued or sold or otherwise disposed of; and
of and (2ii) at least 7585% of the consideration therefor received in by the Company or such Asset Sale Subsidiary is in the form of cash or Cash Equivalentscash; provided that any the amount of the following items shall be deemed to be cash and Cash Equivalents for the purposes of this clause (2):
(ax) the assumption of any liabilities (as shown on the Company’s 's or the Restricted such Subsidiary’s 's 42 48 most recent balance sheet) ), of the Company or any Restricted Subsidiary of the Company (other than contingent liabilities and liabilities that are by their terms subordinated to the Notes issued under this Indenture or any Subsidiary Guaranteeguarantee thereof) that are assumed by the transferee of any such assets pursuant to a customary novation agreement that releases the Company or the Restricted such Subsidiary from further liability;
liability and (by) any securities, notes or other obligations 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 the Restricted such Subsidiary into cash or Cash Equivalents within 180 days following their receipt (to the extent of the cash or Cash Equivalents received); and, shall be deemed to be cash for purposes of this provision.
(c) any stock or assets of the kind referred to in clauses (b) and (d) of the next paragraph of this Section 4.10. Within 365 180 days after the receipt of any Net Proceeds from an Asset Sale, the Company or the Restricted Subsidiary, as the case may be, may apply such Net Proceeds, at its option:
Proceeds to (a) to prepayrepay Indebtedness under a Credit Facility, repay, purchase, repurchase or redeem any secured Indebtedness of the Company or any Restricted Subsidiary of the Company;
(b) to acquire a controlling interest in another business or all or substantially all of (1) the assets of, or operating line a majority of another businessthe Voting Stock of, in each case a Person engaged in a Permitted Telecommunications or Entertainment Business or (2) the assets of a line of business of a Person engaged in the Telecommunications or Entertainment Business;
; provided that such assets relate to the Telecommunications or Entertainment Business; or (c) to make a capital expenditures; or
(d) to expenditure or otherwise acquire other nonlong-current term assets to be that are used or useful in a Permitted Business. Pending the final application of any such Net Proceeds, the Company may temporarily reduce Indebtedness under any Credit Facility revolving credit borrowings or otherwise expend or invest such Net Proceeds in any manner that is not prohibited by this Indenture. Any Net Proceeds from Asset Sales described in this paragraph that are not applied or invested as provided in the first sentence of this paragraph of this Section 4.10 shall will be deemed to constitute “"Excess Asset Sale Proceeds.” " When the aggregate amount of Excess Asset Sale Proceeds exceeds $10.0 5.0 million, the Company will shall be required under this Indenture to make an offer to the Holders of Notes issued thereunder and the holders of any other Senior Indebtedness that is subject to requirements with respect to the application of net proceeds from asset sales that are substantially similar to those contained in this Indenture (an “Asset Sale Offer”) Offer to purchase on a pro rata basis (with the Excess Asset Sale Proceeds prorated between the Holders of the Notes and such holders of such other Senior Indebtedness based upon outstanding aggregate principal amounts) the maximum principal amount of the Notes and such other Senior Indebtedness that may be purchased or prepaid, as applicable, out of the prorated Excess Asset Sale Proceeds, at an offer price in cash in an amount equal to 100% of the principal amount thereof plus accrued and unpaid interest thereon and Liquidated Damages thereon, if any, to the date of purchase, in accordance with the procedures set forth in this IndentureSection 3.09 hereof. 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 other Senior Indebtedness tendered (and electing to be redeemed or repaid, as applicable) pursuant to an into such Asset Sale Offer is less than surrendered by Holders thereof exceeds the amount of Excess Asset Sale Proceeds, the Company and its Restricted Subsidiaries may use any remaining Excess Asset Sale Proceeds for general corporate purposes and any other purpose not prohibited by this IndentureTrustee shall select the Notes to be purchased on a pro rata basis. Upon completion of the offer to purchasesuch Asset Sale Offer, the amount of Excess Asset Sale Proceeds shall be reset at zero. .
(c) The Company will comply with determination of the requirements Fair Market Value of Rule 14e-1 under the Exchange Act and any other securities laws and regulations thereunder Asset Sale shall be based upon: (i) an Officer's Certificate delivered to the extent Trustee if such laws Fair Market Value is less than or equal to $500,000; (ii) the resolution of a majority of the disinterested members of the Board of Directors whose resolution with respect thereto shall be delivered to the Trustee, if such Fair Market Value is greater than $500,000 but less than $5.0 million; and regulations are applicable in connection with (iii) an opinion or appraisal issued by an accounting, appraisal or investment banking firm of national standing, if such Fair Market Value is equal to or exceeds $5.0 million. Not later than the date of making any Asset Sale Offer. To the extent that the provisions of any securities laws or regulations conflict with the provisions of this Section 4.10Sale, the Company will comply with shall deliver to the applicable securities laws Trustee an Officers' Certificate stating that such Asset Sale is permitted and regulations and will not be deemed to have breached its obligations under setting forth the basis upon which the calculations required by this Section 4.10 were computed, together with any other documents required by virtue of the Company’s compliance with such securities laws or regulationsthis Indenture.
Appears in 1 contract
Samples: Indenture (Park N View Inc)
Asset Sales. The Company will shall not, and will shall not permit any of its Restricted Subsidiaries to, consummate an Asset Sale unless:
unless (1i) the Company (or the Restricted Subsidiary, as the case may be, ) receives consideration at the time of the such Asset Sale at least equal to the Fair Market Value fair market value (measured as of evidenced by an Officers' Certificate delivered to the date of the definitive agreement Trustee and, with respect to such any Asset SaleSale involving consideration in excess of $2.5 million, a resolution of the Company's Board of Directors) of the assets or Equity Interests issued or sold or otherwise disposed of; and
of and (2ii) at least 7585% (or, in the case of the sale or other disposition of any Residual Receivables (or interest therein) 50%) of the consideration therefor received in by the Company or such Asset Sale Restricted Subsidiary is in the form of cash or Cash Equivalents; provided that any the amount of the following items shall be deemed to be cash and Cash Equivalents for the purposes of this clause (2):
(ax) the assumption of any liabilities (as shown on the Company’s 's or the such Restricted Subsidiary’s 's most recent balance sheet) of the Company or any Restricted Subsidiary of the Company (other than contingent liabilities and liabilities that are by their terms subordinated to Notes issued under this Indenture or any Subsidiary Guaranteethe Notes) that are expressly assumed by the transferee of any such assets pursuant to a customary novation agreement that releases the Company or the such Restricted Subsidiary from further liability;
liability and (by) any currencies, securities, notes or other obligations received by the Company or any such Restricted Subsidiary from such transferee that are converted by the Company or the such Restricted Subsidiary into cash or Cash Equivalents within 180 30 days following their after receipt (to the extent of the cash or received), shall be deemed to be Cash Equivalents received); and
(c) any stock or assets of the kind referred to in clauses (b) and (d) of the next paragraph for purposes of this Section 4.10provision. Within 365 180 days after the receipt of any Net Proceeds from an Asset SaleSale subject to this covenant, the Company or the Restricted Subsidiary, as the case may be, may apply an amount equal to 100% of such Net ProceedsProceeds to (i) an Investment (other than in Receivables that, at its option:
(a) to prepay, repay, the time of purchase, repurchase are not Eligible Receivables), or redeem (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 secured Indebtedness Warehouse Facility, or (iv) the making of any capital expenditure, or (v) the Company or acquisition of any Restricted Subsidiary of the Company;
(b) to acquire a controlling interest in another business or all or substantially all of the assets or operating line of another businessother tangible assets, in each case engaged case, in a Permitted Business;
(c) or with respect to make capital expenditures; or
(d) to acquire other non-current assets to be used in a Permitted Business. Pending the final application of any such Net Proceeds, the Company or such Restricted Subsidiary may temporarily reduce outstanding Indebtedness under any Credit Facility or otherwise expend or invest such Net Proceeds in any manner that is not prohibited by this Indenture. Any Net Proceeds from Asset Sales described in this paragraph that are not applied or invested as provided in the first preceding sentence of this paragraph of this Section 4.10 shall will be deemed to constitute “"Excess Asset Sale Proceeds.” " When the aggregate amount of Excess Asset Sale Proceeds exceeds $10.0 5 million, the Company will be required under this Indenture to shall make an offer to the Holders of Notes issued thereunder and the holders of any other Senior Indebtedness that is subject to requirements with respect to the application of net proceeds from asset sales that are substantially similar to those contained in this Indenture (an “Asset Sale Offer”) to purchase on a pro rata basis (with the Excess Asset Sale Proceeds prorated between the all Holders of the Notes and such holders of such other Senior Indebtedness based upon outstanding aggregate principal amounts(an "Asset Sale Offer") to purchase the maximum principal amount of the Notes and such other Senior Indebtedness that may be purchased or prepaid, as applicable, out of the prorated Excess Asset Sale 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 balance sheet. To the extent that the aggregate principal amount of the Notes and other Senior Indebtedness tendered (and electing to be redeemed or repaid, as applicable) pursuant to an Asset Sale Offer is less than the Excess Asset Sale Proceeds, the Company and its or the Restricted Subsidiaries Subsidiary, as the case may be, may use any remaining Excess Asset Sale Proceeds for general corporate purposes and any other purpose not prohibited purposes. If the aggregate principal amount of the Notes surrendered by this IndentureHolders thereof exceeds the amount of Excess Proceeds, the Trustee shall select the Notes to be purchased on a pro rata basis. Upon completion of the offer to purchasesuch Asset Sale Offer, the amount of Excess Asset Sale Proceeds shall 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 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, 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 the Company’s compliance with such securities laws or regulations.
Appears in 1 contract
Samples: Indenture (Matrix Capital Corp /Co/)
Asset Sales. The Company will shall not, and will shall not permit any of its Restricted Subsidiaries to, consummate an Asset Sale unless:
unless (1i) the Company (or the Restricted Subsidiary, as the case may be, ) receives consideration at the time of the such Asset Sale at least equal to the Fair Market Value fair market value (measured as evidenced by a resolution of the date Board of Directors set forth in an Officers' Certificate delivered to the definitive agreement with respect to such Asset SaleTrustee) of the assets or Equity Interests issued or sold or otherwise disposed of; and
of and (2ii) at least 7580% of the consideration therefor received in by the Company or such Asset Sale Restricted Subsidiary is in the form of cash or Cash Equivalentscash; provided that any the amount of the following items shall be deemed to be cash and Cash Equivalents for the purposes of this clause (2):
(ax) the assumption of any liabilities (as shown on the Company’s 's or the such Restricted Subsidiary’s 's most recent balance sheet) ), of the Company or any Restricted Subsidiary of the Company (other than contingent liabilities and liabilities that are by their terms subordinated to the Notes issued under this Indenture or any Subsidiary GuaranteeGuarantee thereof) that are assumed by the transferee of any such assets pursuant to a customary novation agreement that releases the Company or the Restricted Subsidiary from further liability;
and (by) any securities, notes or other obligations Obligations received by the Company or any such Restricted Subsidiary from such transferee that that, within 30 days of such receipt, are converted by the Company or the such Restricted Subsidiary into cash or Cash Equivalents within 180 days following their receipt (to the extent of the cash or Cash Equivalents received); and
(c) any stock or assets of the kind referred , will be deemed to in clauses (b) and (d) of the next paragraph be cash for purposes of this Section 4.10provision. Within 365 360 days after the receipt of any Net Proceeds from an Asset SaleSale or Event of Loss, the Company or the Restricted Subsidiary, as the case may be, may apply such Net Proceeds, at its option:
(a) Proceeds to prepay, repay, purchase, repurchase or redeem any secured Indebtedness the acquisition of the Company or any Restricted Subsidiary of the Company;
(b) to acquire a controlling an interest in another business business, the making of a capital expenditure, cost of construction or all real property improvements or substantially all the acquisition of the assets or operating line of another businessother assets, in each case engaged case, in a the same line of business as the Permitted Business;
(c) Businesses. Any Net Proceeds received from the sale of assets that do not constitute Collateral may be applied also to make capital expenditures; or
(d) to acquire other non-current assets to be used in a Permitted Businessthe repayment of any senior debt secured by such assets. Pending the final application of any such Net Proceeds, the Company may temporarily reduce Indebtedness under any the Revolving Credit Facility or otherwise expend or invest such Net Proceeds in any manner that is not prohibited by this Indenture. Any Net Proceeds from Asset Sales described in this paragraph that are not applied or invested as provided in the first sentence two sentences of this paragraph of this Section 4.10 shall will be deemed to constitute “"Excess Asset Sale Proceeds.” When " Within fifteen days of each date on which the aggregate amount of Excess Asset Sale Proceeds exceeds $10.0 5.0 million, the Company will be required under this Indenture to make commence an offer to the all Holders of Notes issued thereunder and the holders of any other Senior Indebtedness that is subject to requirements with respect to the application of net proceeds from asset sales that are substantially similar to those contained in this Indenture (an “"Asset Sale Offer”") to purchase on a pro rata basis (with the Excess Asset Sale Proceeds prorated between the Holders of the Notes and such holders of such other Senior Indebtedness based upon outstanding aggregate principal amounts) the maximum principal amount of the Notes and such other Senior Indebtedness that may be purchased or prepaid, as applicable, out of the prorated Excess Asset Sale Proceeds, at an offer price in cash in an amount equal to 100% of the principal amount thereof plus accrued and unpaid interest thereon and Liquidated Damages, if any, thereon, to the date of purchase, in accordance with the procedures set forth in this IndentureSection 3.10 hereof. To the extent that the aggregate principal amount of Notes and other Senior Indebtedness tendered (and electing to be redeemed or repaid, as applicable) pursuant to an Asset Sale Offer is less than the Excess Asset Sale Proceeds, the Company and its Restricted Subsidiaries may use any remaining Excess Asset Sale Proceeds for general corporate purposes and any other purpose not prohibited purposes. If the aggregate principal amount of Notes surrendered by this IndentureHolders thereof exceeds the amount of Excess Proceeds, the Trustee will select the Notes to be purchased on a pro rata basis. Upon completion of the such offer to purchase, the amount of Excess Asset Sale Proceeds shall 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 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, 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 the Company’s compliance with such securities laws or regulations.
Appears in 1 contract
Samples: Indenture (Riviera Holdings Corp)
Asset Sales. The Company will shall not, and will shall not permit any of its Restricted Subsidiaries to, engage in or consummate an Asset Sale unless:
unless (1i) the Company (or the Restricted Subsidiary, as the case may be, ) receives consideration at the time of the such Asset Sale at least equal to the Fair Market Value (measured as of the date of the definitive agreement with respect to such Asset Sale) fair market value of the assets or Equity Interests issued or sold or otherwise disposed of; and
of (2as determined by the Board of Directors in good faith, whose determination shall be conclusive evidence thereof and shall be evidenced by a resolution of the Board of Directors set forth in an Officers' Certificate delivered to the Trustee) and (ii) at least 75% of the consideration therefor received in by the Company or such Asset Sale Restricted 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 any the amount of the following items shall be deemed to be cash and Cash Equivalents for the purposes of this clause (2):
(ax) the assumption of any liabilities (as shown on the Company’s 's or the such Restricted Subsidiary’s 's most recent balance sheet) ), of the Company or any Restricted Subsidiary of the Company (other than contingent liabilities and liabilities that are by their terms subordinated to the Notes issued under this Indenture or any Subsidiary GuaranteeGuarantee thereof) that are assumed by the transferee of any such assets pursuant to a customary novation agreement that releases the Company or the such Restricted Subsidiary from further liability;
liability and (by) any securities, notes or other obligations received by the Company or any such Restricted Subsidiary from such transferee that are converted within 15 days by the Company or the such Restricted Subsidiary into cash or Cash Equivalents within 180 days following their receipt (to the extent of the cash or Cash Equivalents received); and
(c) any stock or assets of the kind referred shall be deemed to in clauses (b) and (d) of the next paragraph be cash for purposes of this Section 4.10provision. Within 365 360 days after the receipt of any Net Proceeds from an Asset Sale, the Company or the its Restricted Subsidiary, as the case may be, Subsidiaries may apply such Net Proceeds, at its option:
, (a) to prepaypermanently reduce Senior Debt, repayor (b) to the investment in, purchaseor the making of a capital expenditure or the acquisition of, repurchase other property or redeem assets in each case used or useable in a Permitted Business, or Capital Stock of any secured Indebtedness Person primarily engaged in a Permitted Business if, as a result of the investment in or acquisition by the Company or any Restricted Subsidiary of the Company;
(b) to acquire thereof, such Person becomes a controlling interest in another business Restricted Subsidiary, or all or substantially all of the assets or operating line of another business, in each case engaged in a Permitted Business;
(c) to make capital expenditures; or
a combination of the uses described in clauses (da) to acquire other non-current assets to be used in a Permitted Businessand (b). Pending the final application of any such Net Proceeds, the Company or its Restricted Subsidiaries may temporarily reduce Indebtedness under any Credit Facility Senior Debt or otherwise expend or invest such Net Proceeds in any manner that is not prohibited by this Indenture. Any Net Proceeds from Asset Sales described in this paragraph Sales, that are not applied or invested as provided in the first sentence of this paragraph within the 360-day period after receipt of this Section 4.10 shall such Net Proceeds will be deemed to constitute “"Excess Asset Sale Proceeds.” " When the aggregate amount of Excess Asset Sale Proceeds exceeds $10.0 millionmillion (an "Asset Sale Offering Triggering Event"), the Company will be required under this Indenture to make an offer to the all Holders of Notes issued thereunder and and, to the extent required by the terms of any Pari Passu Indebtedness to all holders of any other Senior such Pari Passu Indebtedness that is subject to requirements with respect to the application of net proceeds from asset sales that are substantially similar to those contained in this Indenture (an “"Asset Sale Offer”") to purchase on a pro rata basis (with the Excess Asset Sale Proceeds prorated between the Holders of the Notes and such holders of such other Senior Indebtedness based upon outstanding aggregate principal amounts) the maximum principal amount of the Notes and any such other Senior Pari Passu Indebtedness that may be purchased or prepaid, as applicable, out of the prorated Excess Asset Sale Proceeds, at an offer price in cash in an amount equal to 100% of the principal amount thereof plus accrued and unpaid interest thereon and Liquidated Damages thereon, if any, to the date of purchase, in accordance with the procedures set forth in this IndentureSection 3.09 hereof or such Pari Passu Indebtedness, as applicable. To the extent that the aggregate principal amount of Notes and other Senior any such Pari Passu Indebtedness tendered (and electing to be redeemed or repaid, as applicable) pursuant to an Asset Sale Offer is less than the Excess Asset Sale Proceeds, the Company and or its Restricted Subsidiaries may use any remaining Excess Asset Sale Proceeds for general corporate purposes purposes. If the aggregate principal amount of Notes and any other purpose not prohibited such Pari Passu Indebtedness surrendered by this Indentureholders thereof exceeds the amount of Excess Proceeds, the Trustee shall select the Notes to be purchased on a pro rata basis. Upon completion of the offer to purchasesuch Asset Sale Offer, the amount of Excess Asset Sale Proceeds shall 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 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, 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 the Company’s compliance with such securities laws or regulations.
Appears in 1 contract
Samples: Indenture (Laralev Inc)
Asset Sales. (a) The Company will shall not, and will shall not permit any of its Restricted Subsidiaries Subsidiary to, consummate consummate, directly or indirectly, an Asset Sale Sale, unless:
(1) the Company or the such Restricted Subsidiary, as the case may be, receives consideration at the time of the such Asset Sale at least equal to the Fair Market Value fair market value (measured as determined in good faith by the Company at the time of the date of the definitive agreement with respect contractually agreeing to such Asset Salesale) of the assets or Equity Interests issued or sold or otherwise disposed of; and
(2) except in the case of a Permitted Asset Swap, at least 75% of the consideration received in for such Asset Sale Sale, together with all other Asset Sales since the Issue Date (on a cumulative basis), received by the Company and its Restricted Subsidiaries is in the form of cash or Cash Equivalents; provided that any . For purposes of this Section 4.10 and for no other purpose, the following items shall be are deemed to be cash and Cash Equivalents for the purposes of this clause (2):Equivalents:
(aA) the assumption of any liabilities (as shown on the Company’s or the such Restricted Subsidiary’s most recent 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 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 of the Company (Subsidiary, other than liabilities that are by their terms subordinated to Notes issued under this Indenture or any Subsidiary Guarantee) the Notes, that are assumed by the transferee of any such assets pursuant (or are otherwise extinguished in connection with the transactions relating to a customary novation agreement that releases such Asset Sale) and for which the Company or the and all Restricted Subsidiary from further liabilitySubsidiaries have been validly released;
(bB) any securities, notes or other obligations received by the Company or any such Restricted Subsidiary from such transferee that are converted by the Company or the such Restricted Subsidiary into cash or Cash Equivalents within 180 days following their receipt (to the extent of cash or the Cash Equivalents received)) within 180 days following the closing of such Asset Sale; and
(cC) any stock Designated Non-cash Consideration received by the Company or assets any Restricted Subsidiary in such Asset Sale having an aggregate fair market value, taken together with all other Designated Non-cash Consideration received pursuant to this clause (C) that is at that time outstanding, not to exceed $5,000,000 for the Reference Period at the time of the kind referred receipt of such Designated Non-cash Consideration, with the fair market value of each item of Designated Non-cash Consideration being measured at the time received and without giving effect to subsequent changes in clauses value.
(b) Subject to any applicable limitations set forth in the Intercreditor Agreement and (d) of the next paragraph of this Section 4.10. Within 365 Revolving Loan Credit Agreement, within 450 days after the later of (x) the date of any Asset Sale and (y) the receipt of any such Net Proceeds from an of any Asset Sale, the Company or such Restricted Subsidiary, at its option, may apply the Net Proceeds from such Asset Sale,
(1) to:
(A) reduce Indebtedness outstanding under a revolving credit facility (including under the Revolving Loan Credit Agreement) to the extent required pursuant to the terms of such revolving credit facility;
(B) permanently reduce Obligations under the Revolving Loan Credit Agreement, and to correspondingly reduce commitments with respect thereto;
(C) permanently reduce Obligations under Pari Passu Indebtedness (and to correspondingly reduce commitments with respect thereto); provided that, in the case of this clause (B), the Company shall equally and ratably reduce Obligations under the Notes on a pro rata basis as provided under Section 3.09 hereof, through open-market purchases (to the extent such purchases are at or above 100% of the principal amount thereof) or by making an offer (in accordance with the procedures set forth below for an Asset Sale Offer) to all Holders to purchase their Notes, on a ratable basis with such other Last Out Term Loans or Last Out Incremental Debt, for no less than 100% of the principal amount thereof, plus the amount of accrued but unpaid interest, if any, on the amount of Notes that would otherwise be repurchased (which offer shall be deemed an Asset Sale Offer for purposes of this Indenture); or
(D) permanently reduce Indebtedness of a Restricted Subsidiary that is not a Guarantor, other than Indebtedness owed to the Company or another Restricted Subsidiary;
(2) 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, may apply 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 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; or
(3) any combination of the foregoing; provided that, in the case of Section 4.10(b)(2), 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 such Restricted Subsidiary enters into such commitment with the good faith expectation that such Net ProceedsProceeds shall be applied to satisfy such commitment within the later of (x) 180 days of such commitment and (y) 450 days 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 Net Proceeds are applied in connection therewith, at its option:then such Net Proceeds shall constitute Excess Proceeds after the later of (A) 450 days 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).
(ac) Notwithstanding the foregoing, to prepaythe extent that any of or all the Net Proceeds of any Asset Sales by an Exempt Entity would have a material adverse tax consequence to the Issuers, repay, purchase, repurchase or redeem any secured Indebtedness of the Company or any of its Restricted Subsidiary Subsidiaries (taking into account any foreign tax credit or benefit actually realized in connection with such repatriation or expatriation) or is prohibited or subject to limitation by applicable local law, order, decree or determination of any arbitrator, court or governmental authority from being repatriated or expatriated to the Company;
United States or distributed to the Company or any Guarantor that is not an Exempt Entity, 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 Exempt Entity so long, but only so long, as applicable, as such material adverse tax consequence exists or the applicable local law will not permit repatriation or expatriation to the United States or distribution to the Company or any Guarantor (bthe Company hereby agreeing to use reasonable efforts to cause the applicable Exempt Entity to take all actions reasonably required by the applicable local law, applicable organizational impediments or other impediment to permit such repatriation, expatriation or distribution), and if such repatriation or expatriation of any of such affected Net Proceeds, as applicable, no longer has material adverse tax consequences or is permitted under the applicable local law, such repatriation or expatriation will be promptly effected and such repatriated or expatriated Net Proceeds will be applied (whether or not repatriation or expatriation actually occurs) to acquire a controlling interest in another business or all or substantially all of the assets or operating line of another business, in each case engaged in a Permitted Business;
(c) to make capital expenditures; orcompliance with this Section 4.10.
(d) to acquire other non-current assets to be used in a Permitted Business. Pending the final application of any such Net Proceeds, the Company may temporarily reduce Indebtedness under any Credit Facility or otherwise expend or invest such Net Proceeds in any manner that is not prohibited by this Indenture. Any Net Proceeds from an Asset Sales described in this paragraph Sale that are not invested or applied or invested as provided and within the time period set forth in the first sentence of this paragraph of this Section 4.10 4.10(b) shall be deemed to constitute “Excess Asset Sale Proceeds.” When the aggregate amount of Excess Asset Sale Proceeds exceeds an aggregate of $10.0 million10,000,000 in any fiscal year (the “Excess Proceeds Threshold”), the Company will be required under this Indenture to shall make an offer to all Holders and, if and to the Holders extent required by the terms of Notes issued thereunder and any Indebtedness that is pari passu in right of payment with the Notes, including, without limitation, the Last Out Term Loans (“Pari Passu Indebtedness”), to the holders of any other Senior such Pari Passu Indebtedness that is subject to requirements with respect to the application of net proceeds from asset sales that are substantially similar to those contained in this Indenture (an “Asset Sale Offer”) ), to purchase on a pro rata basis the maximum aggregate principal amount (with the Excess Asset Sale Proceeds prorated between the Holders or accreted value, as applicable) of the Notes and such holders of such other Senior Pari Passu Indebtedness based upon outstanding aggregate principal amounts) the maximum principal that is in a minimum amount of the Notes and such other Senior Indebtedness $1.00 or an integral multiple of $1.00 in excess thereof that may be purchased or prepaid, as applicable, out in the amount equal to the sum of the prorated Excess Asset Sale Proceeds, Proceeds (the “Excess Proceeds Payment Amount”) at an offer price in cash in an amount equal to 100% of the principal amount thereof or accreted value thereof, plus accrued and unpaid interest thereon to interest, if any, to, but excluding, the date fixed for the closing of purchasesuch offer, in accordance with the procedures set forth in this IndentureIndenture and, if applicable, the other documents governing the applicable Pari Passu Indebtedness. The Company shall commence an Asset Sale Offer with respect to Excess Proceeds within 15 Business Days after the date that Excess Proceeds exceed the Excess Proceeds Threshold by sending the notice required pursuant to Section 3.09 hereof, with a copy to the Trustee. The Company may satisfy the foregoing obligation with respect to such Net Proceeds from an Asset Sale by making an Asset Sale Offer with respect to all or a portion of the available Net 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 of Notes and other Senior Indebtedness tendered (and electing to be redeemed or repaidaccreted value, as applicable) of Notes and, if applicable, Pari Passu Indebtedness tendered pursuant to an Asset Sale Offer is less than the Excess Asset Sale ProceedsProceeds Payment Amount (or, in the case of an Advance Offer, the Advance Portion), the Company and its Restricted Subsidiaries may use any remaining Excess Asset Sale Proceeds (or, in the case of an Advance Offer, the Advance Portion) for general corporate purposes and such amount offered in any other purpose manner not prohibited by this Indenture. If the aggregate principal amount (or accreted value, as applicable) of Notes or the Pari Passu Indebtedness 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 Pari Passu Indebtedness to be purchased on a pro rata basis based on the principal amount or accreted value 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, shall be repurchased in part in an unauthorized denomination. Upon completion of the offer to purchaseany such Asset Sale Offer, the amount of Excess Asset Sale Proceeds shall be reset at zero, but 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. Additionally, upon consummation or expiration of any Advance Offer, any remaining Net Proceeds shall not be deemed Excess Proceeds and the Company may use such Net Proceeds for any purpose not otherwise prohibited under this Indenture.
(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 such Net Proceeds temporarily to reduce Indebtedness outstanding under a revolving credit facility (including under the Revolving Loan Credit Agreement) or otherwise invest such Net Proceeds in any manner not prohibited by this Indenture.
(g) The Company will shall comply with the requirements of Rule 14e-1 under the Exchange Act and any other securities laws and regulations thereunder to the extent such laws and regulations are applicable in connection with 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 4.10Indenture, the Company will shall comply with the applicable securities laws and regulations and will shall not be deemed to have breached its obligations under this Section 4.10 by virtue of the Company’s compliance with such securities laws or regulationscompliance.
Appears in 1 contract
Asset Sales. (a) The Company will shall not, and will shall not permit any of its Restricted Subsidiaries Subsidiary to, directly or indirectly, consummate an any Asset Sale unless:
(1i) the Company or the such Restricted Subsidiary, as the case may be, Subsidiary receives consideration at the time of the such Asset Sale at least equal to the Fair Market Value (measured as of the date of the definitive agreement with respect Property subject to such Asset Sale) of the assets or Equity Interests issued or sold or otherwise disposed of; and;
(2ii) at least 75% of the consideration received paid to the Company or such Restricted Subsidiary in connection with such Asset Sale is in the form of cash or Cash Equivalents; provided provided, however, that any the amount of the following items shall be deemed to be cash and Cash Equivalents for the purposes of this clause (2):
(a1) the assumption of any liabilities (as shown on the Company’s 's or the such Restricted Subsidiary’s 's most recent balance sheet) of the Company or any such Restricted Subsidiary of the Company (other than contingent liabilities and liabilities that are by their terms subordinated to the Notes issued under this Indenture or any Subsidiary GuaranteeGuaranty) that are assumed by the transferee of any such assets Property pursuant to a customary novation agreement that releases the Company or the such Restricted Subsidiary from further liability;
liability and (b2) any securities, notes or other obligations received by the Company or any such Restricted Subsidiary from such transferee that are converted within 30 days by the Company or the such Restricted Subsidiary into cash or Cash Equivalents within 180 days following their receipt (to the extent of the cash received) shall be deemed to be cash for the purposes of this provision;
(iii) no Default or Cash Equivalents received)Event of Default would occur as a result of such Asset Sale; and
(civ) any stock or assets of the kind referred Company delivers an Officers' Certificate to in the Trustee certifying that such Asset Sale complies with the preceding clauses (a)(i) through (iii).
(b) and The Net Available Cash (dor any portion thereof) of the next paragraph of this Section 4.10. Within 365 days after the receipt of any Net Proceeds from an Asset Sale, Sales may be applied by the Company or the a Restricted Subsidiary, as to the case may be, may apply extent the Company or such Net Proceeds, at its option:Restricted Subsidiary elects (or is required by the terms of any Debt):
(ai) to prepay, repay, purchase, repurchase or redeem any secured Indebtedness Repay Senior Debt of the Company or any Restricted Subsidiary Guarantor (excluding, in any such case, any Debt owed to the Company or an Affiliate of the Company;); or
(bii) to acquire reinvest in Additional Assets (including by means of an Investment in Additional Assets by a controlling interest in Restricted Subsidiary with Net Available Cash received by the Company or another business or all or substantially all of the assets or operating line of another business, in each case engaged in a Permitted Business;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, and for which binding contractual commitments have been entered into, prior to make capital expendituresthe end of such 360-day period and that shall not have been completed or abandoned shall constitute "Excess Proceeds;" provided, however, that any 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; orprovided, further, that the amount of any Net Available Cash that ceases to be so 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 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."
(d) to acquire other non-current assets to be used in a Permitted Business. Pending the final application of any such Net Proceeds, the Company may temporarily reduce Indebtedness under any Credit Facility or otherwise expend or invest such Net Proceeds in any manner that is not prohibited by this Indenture. Any Net Proceeds from Asset Sales described in this paragraph that are not applied or invested as provided in the first sentence of this paragraph of this Section 4.10 shall be deemed to constitute “Excess Asset Sale Proceeds.” When the aggregate amount of Excess Asset Sale Proceeds exceeds $10.0 million5.0 million (taking into account income earned on such Excess Proceeds, if any), the Company will be required under this Indenture to make an offer to repurchase (the Holders "Prepayment Offer") the Notes, which offer shall be in the amount of Notes issued thereunder and the holders of any other Senior Indebtedness that is subject to requirements with respect Allocable Excess Proceeds (rounded to the application of net proceeds from asset sales that are substantially similar to those contained in this Indenture (an “Asset Sale Offer”) to purchase nearest $1,000), on a pro rata basis (with the Excess Asset Sale Proceeds prorated between the Holders of the Notes and such holders of such other Senior Indebtedness based upon outstanding aggregate according to principal amounts) the maximum principal amount of the Notes and such other Senior Indebtedness that may be purchased or prepaid, as applicable, out of the prorated Excess Asset Sale Proceedsamount, at an offer a purchase price in cash in an amount equal to 100% of the principal amount thereof thereof, plus accrued and unpaid interest thereon interest, including Special Interest, if any, to the purchase date (subject to the right of purchaseHolders on the relevant record date to receive interest due on the relevant interest payment date), in accordance with the procedures (including prorating in the event of oversubscription) set forth in this Indenture. To the extent that any portion of the aggregate principal amount of Net Available Cash remains after compliance with the preceding sentence and provided that all Holders of Notes and other Senior Indebtedness tendered (and electing have been given the opportunity to be redeemed or repaid, as applicable) pursuant to an Asset Sale Offer is less than the Excess Asset Sale Proceedstender their Notes for purchase in accordance with this Indenture, the Company and its or such Restricted Subsidiaries Subsidiary may use such remaining amount for any remaining Excess Asset Sale Proceeds for general corporate purposes and any other purpose not prohibited permitted by this Indenture. Upon completion of the offer to purchase, and the amount of Excess Asset Sale Proceeds shall will be reset at to 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 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, 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 the Company’s compliance with such securities laws or regulations.
Appears in 1 contract
Asset Sales. The Company will shall not, and will shall not permit any of its Restricted Subsidiaries to, consummate an Asset Sale unless:
unless (1i) the Company (or the Restricted Subsidiary, as the case may be, ) receives consideration at the time of the such Asset Sale at least equal to the Fair Market Value fair market value (measured as evidenced by a resolution of the date Board of Directors set forth in an Officers' Certificate delivered to the definitive agreement with respect to such Asset SaleTrustee) of the assets or Equity Interests issued or sold or otherwise disposed of; and
of and (2ii) at least 75% of the consideration therefor received in by the Company or such Asset Sale Restricted Subsidiary is in the form of cash or Cash Equivalentscash; provided that any the amount of the following items shall be deemed to be cash and Cash Equivalents for the purposes of this clause (2):
(ax) the assumption of any liabilities (as shown on the Company’s 's or the such Restricted Subsidiary’s 's most recent balance sheet) of the Company or any Restricted Subsidiary of the Company (other than contingent liabilities and liabilities that are by their terms subordinated to the Notes issued under this Indenture or any Subsidiary Guaranteeguarantee thereof) that are assumed by the transferee of any such assets pursuant to a customary novation agreement that releases the Company or the such Restricted Subsidiary from further liability;
liability and (by) any securities, notes or other obligations received by the Company or any such Restricted Subsidiary from such transferee that are promptly converted by the Company or the such Restricted Subsidiary into cash or Cash Equivalents within 180 days following their receipt (to the extent of the cash or Cash Equivalents received); and
(c) any stock or assets of the kind referred , shall be deemed to in clauses (b) and (d) of the next paragraph be cash for purposes of this Section 4.10. Any Restricted Payment that is permitted by Section 4.07 hereof will not be deemed to be an Asset Sale. Within 365 360 days after the receipt of any Net Proceeds from an Asset Sale, the Company (or the such Restricted Subsidiary, as the case may be, ) may apply such Net Proceeds, at its option:
, either (a) to prepay, repay, purchase, repurchase or redeem repay any secured Indebtedness Senior Debt of the Company or any Restricted Subsidiary of the Company;
a Guarantor, or (b) to acquire the acquisition of a controlling interest in another business business, the making of a capital expenditure or all or substantially all the acquisition of the assets or operating line of another businessother long- term assets, in each case case, in the same line of business as the Company and its Restricted Subsidiaries were engaged on the date hereof or in a Permitted Business;
(c) to make capital expenditures; or
(d) to acquire other non-current assets to be used in a Permitted Related Business. Pending the final application of any such Net Proceeds, the Company may temporarily reduce Indebtedness under any Credit Facility or otherwise expend or invest such Net Proceeds in any manner that is not prohibited by this Indenture. Any Net Proceeds from Asset Sales described in this paragraph that are not applied or invested as provided in the first sentence of this paragraph of this Section 4.10 shall be deemed to constitute “Excess Asset Sale Proceeds.” When the aggregate amount of Excess Asset Sale Proceeds exceeds $10.0 million, the Company will be required under this Indenture to make an offer to the Holders of Notes issued thereunder and the holders of any other Senior Indebtedness that is subject to requirements with respect to the application of net proceeds from asset sales that are substantially similar to those contained in this Indenture (an “Asset Sale Offer”) to purchase on a pro rata basis (with the Excess Asset Sale Proceeds prorated between the Holders of the Notes and such holders of such other Senior Indebtedness based upon outstanding aggregate principal amounts) the maximum principal amount of the Notes and such other Senior Indebtedness that may be purchased or prepaid, as applicable, out of the prorated Excess Asset Sale 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. To the extent that the aggregate principal amount of Notes and other Senior Indebtedness tendered (and electing to be redeemed or repaid, as applicable) pursuant to an Asset Sale Offer is less than the Excess Asset Sale Proceeds, the Company and its Restricted Subsidiaries may use any remaining Excess Asset Sale Proceeds for general corporate purposes and any other purpose not prohibited by this Indenture. Upon completion of the offer to purchase, the amount of Excess Asset Sale Proceeds shall 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 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, 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 the Company’s compliance with such securities laws or regulations.such
Appears in 1 contract
Asset Sales. The Company will not, and will not permit any of its Restricted Subsidiaries to, consummate an Asset Sale unless:
(1a) the Company or the any of its Restricted SubsidiarySubsidiaries, as the case may be, receives consideration at the time of the Asset Sale at least equal to the Fair Market Value (measured as of the date of the definitive agreement with respect to such Asset Sale) of the assets or Equity Interests issued or sold or otherwise disposed of; and
(2b) at least 75% of the aggregate consideration received in such the Asset Sale by the Company or such Restricted Subsidiary and all other Asset Sales since the date of this Indenture is in the form of cash or Cash Equivalents; provided that any . For purposes of this provision, each of the following items shall will be deemed to be cash and Cash Equivalents for the purposes of this clause (2):cash:
(ai) the assumption of any liabilities (liabilities, as shown on the Company’s or the Restricted Subsidiary’s most recent consolidated balance sheet) , of the Company or any of its Restricted Subsidiary of the Company Subsidiaries (other than contingent liabilities and liabilities that are by their terms subordinated to the Notes issued under this Indenture or any Subsidiary Note Guarantee) that are assumed by the transferee of any such assets pursuant to a customary novation or indemnity agreement that releases the Company or the such Restricted Subsidiary from or indemnifies the Company or such Restricted Subsidiary against further liability;
(bii) with respect to any Asset Sale of oil and natural gas properties by the Company or any of its Restricted Subsidiaries where the Company or such Restricted Subsidiary retains an interest in such property, any agreement by the transferee (or an Affiliate thereof) to pay all or a portion of the costs and expenses of the Company or such Restricted Subsidiary related to the exploration, development, completion or production of such properties and activities related thereto;
(iii) any securities, notes or other obligations received by the Company or any such Restricted Subsidiary from such transferee that are are, within 180 days of the Asset Sale, converted by the Company or the such Restricted Subsidiary into cash or Cash Equivalents within 180 days following their receipt (cash, to the extent of the cash or Cash Equivalents received); andreceived in that conversion;
(civ) any stock Capital Stock or assets of the kind referred to in clauses clause (bii) and or (div) of Section 4.10(c) hereof; and
(v) any Designated Non-cash Consideration received by the next paragraph Company or such Restricted Subsidiary in such Asset Sale having an aggregate Fair Market Value, taken together with all other Designated Non-cash Consideration received pursuant to this clause (v), not to exceed an amount equal to 5.0% of this Section 4.10. the Company’s Adjusted Consolidated Net Tangible Assets (determined at the time of receipt of such Designated Non-cash Consideration), with the Fair Market Value of each item of Designated Non-cash Consideration being measured at the time received and without giving effect to subsequent changes in value.
(c) Within 365 days after the receipt of any Net Proceeds from an Asset Sale, the Company or the one or more of its Restricted Subsidiary, as the case may be, Subsidiaries may apply an amount equal to the amount of such Net Proceeds, Proceeds at its optionoption to any combination of the following:
(ai) to prepay, repay, purchase, repurchase or redeem any secured senior Indebtedness of the Company or any Guarantor, in each case owing to a Person other than the Company or any Restricted Subsidiary;
(ii) 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;
(b) to acquire a controlling interest in another business or all or substantially all of the assets or operating line of another business, in each case engaged in a Permitted Business;
(ciii) to make capital expendituresexpenditures in respect of the Company’s or any of its Restricted Subsidiaries’ Oil and Gas Business; or
(div) to acquire other non-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 (ii) or (iv) of Section 4.10(c) hereof shall be deemed to be used satisfied if a bona fide binding contract committing to make the acquisition 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 a Permitted Businessthe 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 such Net Proceeds, the Company or any of its Restricted Subsidiaries may temporarily reduce Indebtedness under any Credit Facility or otherwise expend or invest such the Net Proceeds in any manner that is not prohibited by this Indenture. Any The Net Proceeds from Asset Sales described in this paragraph that are not applied or invested as provided in the first sentence of this paragraph of this Section 4.10 shall be deemed to Sections 4.10(b) and 4.10(c) hereof will constitute “Excess Asset Sale Proceeds.” When the aggregate amount of Excess Asset Sale Proceeds exceeds $10.0 35.0 million, within five days thereof, the Company will be required under this Indenture to make an offer to the Holders of Notes issued thereunder and the holders of any other Senior Indebtedness that is subject to requirements with respect to the application of net proceeds from asset sales that are substantially similar to those contained in this Indenture (an “Asset Sale Offer”) to purchase 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 Section 4.10 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 (with the Excess Asset Sale Proceeds prorated between the Holders of the Notes and such holders of such other Senior Indebtedness based upon outstanding aggregate principal amounts) basis, the maximum principal amount of the Notes and such other Senior pari passu Indebtedness (plus all accrued interest on the Notes and other Indebtedness and the amount of all fees and expenses, including premiums, incurred in connection therewith) that may be purchased purchased, prepaid or prepaid, as applicable, redeemed out of the prorated Excess Asset Sale Proceeds, at an . The offer price in cash in an amount any Asset Sale Offer will be equal to 100% of the principal amount thereof amount, plus accrued and unpaid interest thereon to 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 accordance with cash. If any Excess Proceeds remain after consummation of an Asset Sale Offer, the procedures set forth in Company or any of its Restricted Subsidiaries may use those Excess Proceeds for any purpose not otherwise prohibited by this Indenture. To the extent that If the aggregate principal amount of Notes and other Senior Indebtedness tendered (and electing to be redeemed or repaid, as applicable) pursuant to an in such Asset Sale Offer is less than exceeds the amount of Excess Asset Sale ProceedsProceeds allocated to the purchase of Notes, the Trustee will select the Notes 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 (with such adjustments as may be deemed appropriate by the Company and its Restricted Subsidiaries may use any remaining Excess Asset Sale Proceeds for general corporate purposes and any other purpose not prohibited by this Indentureso that only Notes in denominations of $2,000, or an integral multiple of $1,000 in excess thereof, will be purchased). Upon completion of the offer to purchaseeach Asset Sale Offer, the amount of Excess Asset Sale Proceeds shall will be reset at zero. The Company will comply with the requirements of Rule 14e-1 under the Exchange Act and any other securities laws and regulations thereunder to the extent such those laws and regulations are applicable in connection with each repurchase of Notes pursuant to a Change of Control Offer or an Asset Sale Offer. To the extent that the provisions of any securities laws or regulations conflict with the provisions of Section 3.09, Section 4.15 or this Section 4.104.10 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 4.15 hereof or this Section 4.10 by virtue of the Company’s compliance with such securities laws or regulationscompliance.
Appears in 1 contract
Samples: Indenture (Callon Petroleum Co)
Asset Sales. The Company will Parent shall not, and will shall not permit any of its Restricted Subsidiaries Subsidiary to, consummate an Asset Sale unless:
unless (1a) the Company Parent or the such Restricted Subsidiary, as the case may be, receives consideration at the time of the such Asset Sale at least equal to the Fair Market Value fair market value (measured as determined in accordance with the definition of such term set out in Section 1.01, the date results of which determination shall be set forth in an Officers’ Certificate delivered to the definitive agreement with respect to such Asset SaleTrustee) of the assets or Equity Interests issued or sold or otherwise disposed of; and
of and (2b) other than for Qualifying Business Disposals, at least 75% of the consideration therefor received in by the Parent or such Asset Sale Restricted Subsidiary is in the form of cash or Cash Equivalents; provided provided, however, that any the amount of the following items shall be deemed to be cash and Cash Equivalents for the purposes of this clause (2):
(ai) the assumption of any liabilities (as shown on the CompanyParent’s or the such Restricted Subsidiary’s most recent balance sheet) of the Company Parent or any such Restricted Subsidiary of the Company (other than contingent liabilities and liabilities that are by their terms subordinated to the Notes issued under this Indenture or any Subsidiary Guarantee) that are assumed by the transferee of any such assets pursuant to a customary novation agreement that releases the Company Parent or the such Restricted Subsidiary from further liability;
, (bii) any securities, notes or other obligations received by the Company Parent or any such Restricted Subsidiary from such transferee that are converted within 180 days by the Company Parent or the such Restricted Subsidiary into cash or Cash Equivalents within 180 days following their receipt (to the extent of the cash or Cash Equivalents received); and
(c) any stock or assets of the kind referred to received in clauses (bthat conversion) and (diii) any Designated Non-Cash Consideration received by the Parent or any Restricted Subsidiary in such Asset Sale having an aggregate fair market value (determined in accordance with the definition of such term set out in Section 1.01, the next paragraph results of which determination shall be set forth in an Officers’ Certificate delivered to the Trustee) taken together with all other Designated Non-Cash Consideration received pursuant to this covenant that is at that time outstanding, not to exceed $20,000,000 (with the fair market value of each item of Designated Non-Cash Consideration being measured at the time received and without giving effect to subsequent changes in value) shall be deemed to be cash for purposes of this Section 4.10. Within 365 days after the receipt of any Net Proceeds from an Asset Sale, the Company or the Restricted Subsidiary, as the case may be, may apply such Net Proceeds, at its option:
Proceeds may be applied to (a) to prepay, repay, purchase, repurchase purchase or redeem any secured Indebtedness of the Company or any a Restricted Subsidiary of that is not a Guarantor or the Company;
, (b) to acquire a controlling interest repurchase the Notes in another business or all or substantially all of the assets or operating line of another business, in each case engaged in a Permitted Business;
(c) to make capital expenditures; or
(d) to acquire other non-current assets to be used in a Permitted Business. Pending the final application of any such Net Proceeds, the Company may temporarily reduce Indebtedness under any Credit Facility or otherwise expend or invest such Net Proceeds in any manner that is not prohibited by this Indenture. Any Net Proceeds from Asset Sales described in this paragraph that are not applied or invested as provided in the first sentence of this paragraph of this Section 4.10 shall be deemed to constitute “Excess Asset Sale Proceeds.” When the aggregate amount of Excess Asset Sale Proceeds exceeds $10.0 million, the Company will be required under this Indenture to make an offer to the Holders of Notes issued thereunder and the holders of any other Senior Indebtedness that is subject to requirements with respect to the application of net proceeds from asset sales that are substantially similar to those contained in this Indenture (an “Asset Sale Offer”) to purchase on a pro rata basis (with the Excess Asset Sale Proceeds prorated between the Holders of the Notes and such holders of such other Senior Indebtedness based upon outstanding aggregate principal amounts) the maximum principal amount of the Notes and such other Senior Indebtedness that may be purchased or prepaid, as applicable, out of the prorated Excess Asset Sale Proceeds, at an offer price in cash in an amount equal to 100% of the principal amount thereof thereof, plus accrued and unpaid interest thereon thereon, to the date of purchase, and otherwise in accordance with the procedures set forth in this Indenture, (c) redeem the Notes pursuant to the provisions set forth in Section 3.07, (d) prepay, repay, purchase or redeem Pari Passu Secured Debt that is secured by a Lien on Collateral which ranks pari passu with the Liens securing the Notes and the Guarantees at an offer price in cash in an amount not to exceed 100% of the principal amount thereof, plus accrued and unpaid interest thereon, to the date of purchase, and otherwise in accordance with the procedures set forth in this Indenture, so long as an offer is made on a pro rata basis to all holders of the Notes at a purchase price equal to 100% of the principal amount of the Notes plus accrued and unpaid interest thereon, to the date of purchase, (e) make capital expenditures in respect of Strategic Assets or (f) acquire (including by way of a purchase of assets or a majority of the Voting Stock of a Person, by merger, by consolidation or otherwise) Strategic Assets; provided that if the Parent or such Restricted Subsidiary enters into a binding agreement to acquire such Strategic Assets within such 365-day period, but the consummation of the transactions under such agreement has not occurred within such 365-day period and such agreement has not been terminated, then such 365-day period shall be extended by 90 days to permit such consummation; if such consummation shall not occur, or such agreement shall be terminated within such 90 day extension period, then the Company may apply, or cause such Restricted Subsidiary to apply, within 90 days after the end of such initial 90-day extension period or the effective date of such termination, whichever is earlier, such Net Proceeds as provided in clauses (a) through (f) of this paragraph; provided further that if the assets sold or transferred in connection with any Asset Sale constitute Collateral,
(i) any investment in Strategic Assets using Net Proceeds thereof shall be carried out by the Company or a Guarantor, and (ii) the Parent shall pledge, or shall cause the applicable Obligor to pledge, in either case no later than 30 days after the consummation of such investment, any Strategic Assets acquired with such Net Proceeds to secure the Notes on a first ranking basis, subject to the Agreed Security Principles. Any Net Proceeds from Asset Sales that are not applied or invested as provided in clauses (a) through (f) of this paragraph will be deemed to constitute “Excess Proceeds”. Pending the final application of any such Net Proceeds, the Parent, the Company or any Restricted Subsidiary may invest such Net Proceeds in any manner that is not prohibited by this Indenture. Within 30 days of each date on which the aggregate amount of Excess Proceeds exceeds $20,000,000, the Company shall commence an Asset Sale Offer pursuant to Section 3.09 hereof to purchase the maximum principal amount of Notes that may be purchased out of the Excess Proceeds at an offer price in cash in an amount equal to 100% of the principal amount thereof, plus accrued and unpaid interest thereon, to the date of purchase, in accordance with the procedures set forth in this IndentureSection 3.09 hereof; provided, however, that, if the Company is required to apply such Excess Proceeds to purchase, or to offer to purchase, any Pari Passu Indebtedness, the Company shall only be required to offer to purchase the maximum principal amount of Notes that may be purchased out of the amount of such Excess Proceeds multiplied by a fraction, the numerator of which is the aggregate principal amount of Notes outstanding and the denominator of which is the aggregate principal amount of Notes outstanding plus the aggregate principal amount of Pari Passu Indebtedness outstanding. To the extent that the aggregate principal amount of Notes and other Senior Indebtedness tendered (and electing to be redeemed or repaid, as applicable) pursuant to an Asset Sale Offer is less than the Excess Asset Sale Proceedsamount that the Company is required to purchase, the Company and its Restricted Subsidiaries may use any remaining Excess Asset Sale Proceeds for general corporate purposes and in any other purpose manner not prohibited by this Indenture. If the aggregate principal amount of Notes surrendered by holders thereof exceeds the amount that the Company is required to purchase, the Trustee shall select the Notes to be purchased on a pro rata basis (with such adjustments as may be deemed appropriate by the Trustee so that only Notes in Permitted Denominations shall be purchased). Upon completion of the such offer to purchase, the amount of Excess Asset Sale Proceeds shall be reset at zero. The Parent shall not, and shall not permit any Restricted Subsidiary to, enter into or suffer to exist any agreement that would place any restriction of any kind (other than pursuant to law or regulation) on the ability of the Company will to make an Asset Sale Offer. 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 the purchase of Notes as a result of an Asset Sale Offer. To the extent that the provisions of any securities laws or regulations conflict with the provisions of this Section 4.10relating to the Asset Sale Offer, the Company will shall comply with the applicable securities laws and regulations and will shall not be deemed to have breached its obligations under this Section 4.10 described above by virtue of the Company’s compliance with such securities laws or regulationsthereof.
Appears in 1 contract
Samples: Indenture
Asset Sales. The Company will not, and will not permit any of its Restricted Subsidiaries to, consummate an Asset Sale unless:
(1) the Company or the Restricted Subsidiary, as the case may be, receives consideration at the time of the Asset Sale at least equal to the Fair Market Value (measured as of the date of the definitive agreement with respect to such Asset Sale) of the assets or Equity Interests issued or sold or otherwise disposed of; and
(2) at least 75% of the consideration received in such Asset Sale is in the form of cash or Cash Equivalents; provided that any of the following items shall be deemed to be cash and Cash Equivalents for the purposes of this clause (2):
(a) the assumption of any liabilities (as shown on the Company’s or the Restricted Subsidiary’s most recent balance sheet) of the Company or any Restricted Subsidiary of the Company (other than liabilities that are by their terms subordinated to Notes issued under this Indenture or any Subsidiary Guarantee) by the transferee of any such assets pursuant to a customary novation agreement that releases the Company or the Restricted Subsidiary from further liability;
(b) any securities, notes or other obligations received by the Company or any such Restricted Subsidiary from such transferee that are converted by the Company or the Restricted Subsidiary into cash or Cash Equivalents within 180 days following their receipt (to the extent of cash or Cash Equivalents received); and
(c) any stock or assets of the kind referred to in clauses (b) and (d) of the next paragraph of this Section 4.10. Within 365 days after the receipt of any Net Proceeds from an Asset Sale, the Company Issuers or Restricted Subsidiary of the Restricted SubsidiaryIssuers, as the case may beapplicable, may apply such Net Proceeds, Proceeds at its option:
: (ai) to prepayrepay (x) Obligations under the Notes or any other Pari Passu Indebtedness (including under the Credit Agreement), repayprovided that (A) to the extent that the terms of any such other Pari Passu Indebtedness (other than the Notes), purchaseas such terms are in effect on the Issue Date, repurchase or redeem any secured require that such other Pari Passu Indebtedness be repaid with the Net Proceeds from an Asset Sale prior to repayment of the Company Notes, the Issuers or any Restricted Subsidiary shall be entitled to repay such other Pari Passu Indebtedness pursuant to this clause (i) prior to repaying the Notes, and (B) subject to the foregoing clause (A), if the Issuers shall so repay any such Pari Passu Indebtedness (other than the Notes), they will, on a ratable basis, make an offer (in accordance with the procedures set forth below for an Asset Sale Offer (as defined below) to all Holders of Notes to purchase at a purchase price equal to 100% of the Company;
principal amount thereof, plus accrued and unpaid interest, if any, the pro rata principal amount of the Notes, or (by) Indebtedness of a Restricted Subsidiary of the Company that is not a Guarantor (to acquire a controlling interest in another business or all or substantially all the extent of the value of the assets of such Restricted Subsidiary); or operating line of another business, in each case engaged in a Permitted Business;
(cii) to make capital expenditures; or
purchase Replacement Assets (d) provided that such Replacement Assets shall be pledged as Collateral under the Security Documents and in accordance with the Indenture and the Security Documents substantially simultaneously with such purchase to acquire other non-current the extent that the assets to be used in a Permitted Businessthe subject of such Asset Sale constituted Collateral). Pending the final application of any such Net Proceeds, the Company or such Restricted Subsidiary may temporarily reduce Indebtedness under any Credit Facility revolving credit borrowings or otherwise expend or invest such Net Proceeds in any manner that is not prohibited by this Indenture. Any On the 366th day after an Asset Sale or such earlier date, if any, as the Issuers determine not to apply the Net Proceeds from relating to such Asset Sales described Sale as set forth in this paragraph that are not applied or invested Section 4.10(b) (each such date being referred as provided in the first sentence of this paragraph of this Section 4.10 shall be deemed to constitute an “Excess Asset Sale Proceeds.” When the Proceeds Trigger Date”), such aggregate amount of Net Proceeds that has not been applied on or before the Excess Asset Sale Proceeds exceeds $10.0 million, Trigger Date as permitted pursuant to Section 4.10(b) (“Excess Proceeds”) shall be applied by the Company will be required under this Indenture Issuers to make an offer to the Holders of Notes issued thereunder and the holders of any other Senior Indebtedness that is subject to requirements with respect to the application of net proceeds from asset sales that are substantially similar to those contained in this Indenture (an “Asset Sale Offer”) to all Holders of Notes and all holders of other Pari Passu Indebtedness containing provisions similar to those set forth in the Indenture with respect to offers to purchase on a pro rata basis (with the Excess Asset Sale Proceeds prorated between proceeds of sales of assets, to purchase the Holders maximum principal amount of the Notes and such holders other Pari Passu Indebtedness that may be purchased out of such other Senior Indebtedness based upon outstanding aggregate principal amounts) the maximum Excess Proceeds. The offer price in any Asset Sale Offer shall be equal to 100% of the principal amount of the Notes and such other Senior Pari Passu Indebtedness that may be purchased or prepaid, as applicable, out of the prorated Excess Asset Sale Proceeds, at an offer price in cash in an amount equal to 100% of the principal amount thereof plus accrued and unpaid interest thereon interest, if any, to the date of purchase, and shall be payable in accordance with cash. The Issuers may defer the procedures set forth Asset Sale Offer until there are aggregate unutilized Excess Proceeds equal to or in this excess of $30.0 million resulting from one or more Asset Sales, at which time the entire unutilized amount of Excess Proceeds (not only the amount in excess of $30.0 million) shall be applied as provided in Section 4.10(c) of the Indenture. To the extent that the aggregate principal amount If any Excess Proceeds remain after consummation of Notes and other Senior Indebtedness tendered (and electing to be redeemed or repaid, as applicable) pursuant to an Asset Sale Offer is less than the Excess Asset Sale ProceedsOffer, the Company and its Restricted Subsidiaries may use any remaining such Excess Asset Sale Proceeds for general corporate purposes and any other purpose not otherwise prohibited by this Indenture. Upon completion If the aggregate principal amount of the offer to purchase, Notes and such other Pari Passu Indebtedness tendered into such Asset Sale Offer exceeds the amount of Excess Asset Sale Proceeds Proceeds, the Notes and such other Pari Passu Indebtedness shall be reset at zeropurchased on a pro rata basis based on the principal amount of Notes and such other Pari Passu Indebtedness tendered. The Company will comply with the requirements Upon completion 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 an each Asset Sale Offer. To the extent that the provisions of any securities laws or regulations conflict with the provisions of this Section 4.10, the Company will comply with the applicable securities laws and regulations and will not Excess Proceeds subject to such Asset Sale shall no longer be deemed to have breached its obligations under this Section 4.10 by virtue of the Company’s compliance with such securities laws or regulationsbe Excess Proceeds.
Appears in 1 contract
Samples: Indenture (Windstream Services, LLC)
Asset Sales. The Company will shall not, and will shall not permit any of its Restricted Subsidiaries to, consummate an Asset Sale unless:
unless (1i) the Company (or the Restricted Subsidiary, as the case may be, ) receives consideration at the time of the such Asset Sale at least equal to the Fair Market Value fair market value (measured as evidenced by a resolution of the date Board of Directors set forth in an Officers' Certificate delivered to the definitive agreement with respect to such Asset SaleTrustee) of the assets or Equity Interests issued or sold or otherwise disposed of; and
of and (2ii) at least 75% of the consideration therefor received in by the Company or such Asset Sale Restricted Subsidiary is in the form of cash or Cash Equivalentscash; provided that any the amount of the following items shall be deemed to be cash and Cash Equivalents for the purposes of this clause (2):
(ax) the assumption of any liabilities (as shown on the Company’s 's or the such Restricted Subsidiary’s 's most recent balance sheet) of the Company or any Restricted Subsidiary of the Company (other than contingent liabilities and liabilities that are by their terms subordinated to the Notes issued under this Indenture or any the Subsidiary GuaranteeGuarantees) that are assumed by the transferee of any such assets pursuant to a customary novation agreement that releases the Company or the such Restricted Subsidiary from further liability;
liability and (by) in the case of any Asset Sale constituting the transfer (by merger or otherwise) of all of the Capital Stock of a Restricted Subsidiary, any liabilities (as shown on such Restricted Subsidiary's most recent balance sheet) of such Restricted Subsidiary (other than contingent liabilities and liabilities that are by their terms subordinated to the Notes or the Subsidiary Guarantees) that will remain outstanding after such transfer and will not be a liability of the Company or any other Restricted Subsidiary of the Company following such transfer and (z) any securities, notes or other obligations 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 the such Restricted Subsidiary into cash or Cash Equivalents within 180 days following their receipt (to the extent of the cash or Cash Equivalents received); and
(c) any stock or assets of the kind referred , shall be deemed to in clauses (b) and (d) of the next paragraph be cash for purposes of this Section 4.10provision. Within 365 360 days after the receipt of any Net Proceeds from an Asset Sale, the Company or the Restricted Subsidiary, as the case may be, may apply such Net Proceeds, at its option:
, (a) to prepayrepay Senior Debt, repay, purchase, repurchase or redeem any secured Indebtedness of the Company or any Restricted Subsidiary of the Company;
(b) to acquire the acquisition of a controlling interest in another business or all or substantially all majority of the assets of, or operating line a majority of the Voting Stock of, another business, the making of a capital expenditure or the acquisition of other long-term assets, in each case case, in, or used or useful in, the same or a similar line of business as the Company or one of its Subsidiaries was engaged in a Permitted Business;
(c) to make capital expenditures; or
(d) to acquire other non-current assets to be used in a Permitted Businesson the date of this Indenture or any reasonable extension or expansion thereof. Pending the final application of any such Net Proceeds, the Company may temporarily reduce Indebtedness under any Credit Facility revolving credit borrowings or otherwise expend or invest such Net Proceeds in any manner that is not prohibited by this Indenture. Any Net Proceeds from Asset Sales described in this paragraph that are not applied or invested as provided in the first sentence of this paragraph of this Section 4.10 shall will be deemed to constitute “"Excess Asset Sale Proceeds.” " When the aggregate amount of Excess Asset Sale Proceeds exceeds $10.0 5.0 million, the Company will be required under this Indenture to make an offer to the all Holders of Notes issued thereunder and the all holders of any other Senior pari passu Indebtedness that is subject containing provisions similar to requirements those set forth in this Indenture with respect to offers to purchase or redeem with the application proceeds of net proceeds from asset sales that are substantially similar to those contained in this Indenture of assets (an “"Asset Sale Offer”") to purchase on a pro rata basis (with the Excess Asset Sale Proceeds prorated between the Holders of the Notes and such holders of such other Senior Indebtedness based upon outstanding aggregate principal amounts) the maximum principal amount of the Notes and such other Senior pari passu Indebtedness that may be purchased or prepaid, as applicable, out of the prorated Excess Asset Sale Proceeds, at an offer price in cash in an amount equal to 100% of the principal amount thereof plus accrued and unpaid interest thereon and Liquidated Damages thereon, if any, to the date of purchase, in accordance with the procedures set forth in this IndentureIndenture 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 Senior Indebtedness tendered (and electing to be redeemed or repaid, as applicable) pursuant to an into such Asset Sale Offer is less than surrendered by Holders thereof exceeds the amount of Excess Asset Sale Proceeds, the Company Trustee shall select the Notes and its Restricted Subsidiaries may use any remaining Excess Asset Sale Proceeds for general corporate purposes and any such other purpose not prohibited by this IndentureIndebtedness to be purchased on a pro rata basis. Upon completion of the such offer to purchase, the amount of Excess Asset Sale Proceeds shall 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 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, 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 the Company’s compliance with such securities laws or regulations.
Appears in 1 contract
Samples: Indenture (Impac Group Inc /De/)
Asset Sales. (a) The Company will not, and will not permit any of its Restricted Subsidiaries to, consummate an Asset Sale unless:
(1) the Company (or the Restricted Subsidiary, as the case may be, ) receives consideration at the time of the Asset Sale at least equal to the Fair Market Value (measured as of the date of the definitive agreement with respect to such Asset Sale) of the assets or Equity Interests issued or sold or otherwise disposed of; and
(2) at least 75% of the consideration received in such the Asset Sale by the Company or such Restricted Subsidiary is in the form of cash or Cash Equivalents; provided that any . For purposes of this provision, each of the following items shall will be deemed to be cash and Cash Equivalents for the purposes of this clause (2):cash:
(aA) the assumption of any liabilities (liabilities, as shown on the Company’s or the Restricted Subsidiary’s most recent consolidated balance sheet) , of the Company or any Restricted Subsidiary of the Company (other than contingent liabilities and liabilities that are by their terms unsecured or subordinated in right of payment or as to Lien priority to the Notes issued under this Indenture or any Subsidiary Note Guarantee) that are assumed by the transferee of any such assets pursuant to a customary novation agreement that releases the Company or the such Restricted Subsidiary from further liability;
(bB) any securities, notes or other obligations received by the Company or any such Restricted Subsidiary from such transferee that are within 180 days after such Asset Sale, converted by the Company or the such Restricted Subsidiary into cash or Cash Equivalents within 180 days following their receipt (cash, to the extent of the cash or Cash Equivalents received); andreceived in that conversion;
(cC) any stock or assets of the kind referred to in clauses Section 4.10(b)(2) or (4) hereof; and
(D) any Designated Noncash Consideration received by the Company or any Restricted Subsidiary in such Asset Sale having an aggregate Fair Market Value, taken together with all other Designated Noncash Consideration received pursuant to this clause (D), not to exceed $5.0 million, with the Fair Market Value of each item of Designated Noncash Consideration being measured at the time received and without giving effect to subsequent changes in value.
(b) and (d) of the next paragraph of this Section 4.10. Within 365 360 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 Net Proceeds:
(1) (a) to repay Indebtedness and other Obligations under the Senior Credit Facility and to correspondingly permanently reduce any revolving commitments with respect thereto and (b) in the case of an Asset Sale of the asset or property of a Foreign Restricted Subsidiary of the Company, to repay Indebtedness and other Obligations under the agreements governing Permitted Debt described in clause (16) of the definition thereof;
(2) to acquire all or substantially all of the assets of, or any Capital Stock of, another Person engaged in a Permitted Business, if, after giving effect to any such acquisition, the Permitted Business is or becomes a Restricted Subsidiary or a line of business of the Company;
(3) to make a capital expenditure;
(4) to acquire other assets that are not classified as current assets under GAAP and that are used or useful in a Permitted Business; and
(5) any combination of the foregoing; provided that in the case of clauses (2), (3) and (4) 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 Company or such Restricted Subsidiary, as the case may be, may apply enters into such commitment with the good faith expectation that such Net Proceeds, at its option:
(a) Proceeds will be applied to prepay, repay, purchase, repurchase or redeem any secured Indebtedness satisfy such commitment within 180 days of the Company or any Restricted Subsidiary of the Company;
(b) to acquire a controlling interest in another business or all or substantially all of the assets or operating line of another businesssuch commitment and, in each case engaged the event any such commitment is later cancelled or terminated for any reason before the Net Proceeds are applied in a Permitted Business;
(c) connection therewith, then such Net Proceeds must be applied as set forth herein or if such cancellation or termination occurs later than the 360-day period referred to make capital expenditures; or
(d) to acquire other non-current assets to be used in a Permitted Businessbelow, shall constitute Excess Proceeds. Pending the final application of any such Net Proceeds, the Company may temporarily reduce Indebtedness under any Credit Facility revolving credit borrowings or otherwise expend or invest such the Net Proceeds in any manner that is not prohibited by this Indenture. .
(c) Any Net Proceeds from Asset Sales described in this paragraph that are not applied or invested as provided in the first sentence of this second paragraph of this Section 4.10 shall be deemed to covenant will constitute “Excess Asset Sale Proceeds.” When Within 15 days after the aggregate amount of Excess Asset Sale Proceeds exceeds $10.0 12.5 million, the Company will be required under this Indenture to make an offer to the Holders of Notes issued thereunder and the holders of any other Senior Indebtedness that is subject to requirements with respect to the application of net proceeds from asset sales that are substantially similar to those contained in this Indenture (an “Asset Sale Offer”) to purchase on a pro rata basis (with the Excess Asset Sale Proceeds prorated between the all Holders of the Notes and such holders of such other Senior Indebtedness based upon outstanding aggregate principal amounts) to purchase the maximum principal amount of the Notes and such other Senior Indebtedness that may be purchased or prepaid, as applicable, out of with the prorated Excess Asset Sale Proceeds, at an . The offer price in cash in an amount any Asset Sale Offer will be equal to 100% of the principal amount thereof plus accrued and unpaid interest thereon interest, if any, to the date of purchase, and will be payable in accordance with cash. If any Excess Proceeds remain after consummation of an Asset Sale Offer, the procedures set forth in Company may use those Excess Proceeds for any purpose not otherwise prohibited by this Indenture. To the extent that If the aggregate principal amount of Notes tendered into such Asset Sale Offer exceeds the amount of Excess Proceeds, the Trustee will select the Notes to be purchased on a pro rata basis for definitive Notes but subject to the procedures of the Depositary for Global Notes. Upon completion of each Asset Sale Offer, the amount of Excess Proceeds will be reset at zero.
(d) The Asset Sale Offer will remain open for a period of at least 20 Business Days following its commencement and other Senior Indebtedness 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 or, if less than the Offer Amount has been tendered, all Notes tendered in response to the Asset Sale Offer. Payment for any Notes so purchased will be made in the same manner as interest payments are made. If the Purchase Date is on or after an interest record date and on or before the related interest payment date, any accrued and unpaid interest and premium, if any, will be paid to the Person in whose name a Note is registered at the close of business on such record date. Upon the commencement of an Asset Sale Offer, the Company will send, by first class mail, a notice to the Trustee and each of the Holders, which contains all instructions and materials necessary to enable such Holders to tender Notes pursuant to the Asset Sale Offer. The notice, which will govern the terms of the Asset Sale Offer, will state:
(1) that the Asset Sale Offer is being made pursuant to this Section 4.10 and the length of time the Asset Sale Offer will remain open;
(2) the Offer Amount, the purchase price and the Purchase Date;
(3) that any Note not tendered or accepted for payment will continue to accrue interest;
(4) that, unless the Company defaults in making such payment, any Note accepted for payment pursuant to the Asset Sale Offer will cease to accrue interest after the Purchase Date;
(5) that Holders electing to be redeemed or repaid, as applicable) have a Note purchased pursuant to an Asset Sale Offer may elect to have Notes purchased in integral multiples of $1.00 only; provided that no Notes in denominations of $2,000 or less may be redeemed or purchased in part, or if a PIK Payment has occurred, no Notes of $1.00 or less shall be redeemed or purchased in part;
(6) that Holders electing to have Notes purchased pursuant to any Asset Sale Offer will be required to surrender the Note, with the form entitled “Option of Holder to Elect Purchase” attached to the Notes completed, or transfer by book-entry transfer, to the Company, a Depositary, if appointed by the Company, or a Paying Agent at the address specified in the notice at least three days before the Purchase Date;
(7) that Holders will be entitled to withdraw their election if the Company, the Depositary or the Paying Agent, as the case may be, receives, not later than the expiration of the Offer Period, a telegram, facsimile transmission or letter setting forth the name of the Holder, the principal amount of the Note the Holder delivered for purchase and a statement that such Holder is withdrawing his election to have such Note purchased;
(8) that, if the aggregate principal amount of Notes surrendered by the Holders exceeds the Offer Amount, the Trustee will select the Notes to be purchased on a pro rata basis; and
(9) that Holders whose Notes were purchased only in part will be issued new Notes equal in principal amount to the unpurchased portion of the Notes surrendered (or transferred by book-entry transfer). On or before the Purchase Date, the Company will, to the 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 Excess 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, will authenticate and mail or deliver (or cause to be transferred by book entry) such new Note to such Holder, in a principal amount equal to any unpurchased portion of the Note surrendered. Any Note not so accepted shall be promptly mailed or delivered by the Company to the Holder thereof. The Company will publicly announce the results of the Asset Sale ProceedsOffer on the Purchase Date. If less than all of the Notes are to be purchased in an Asset Sale Offer at any time, the Trustee will select Notes for purchase on a pro rata basis, by lot or other method in any case the Trustee considers appropriate, with respect to Global Notes, subject to the rules and procedures of the Depositary unless otherwise required by law or applicable stock exchange requirements, not less than 30 nor more than 60 days prior to the Purchase Date by the Trustee from the outstanding Notes not previously purchased. The Trustee will promptly notify the Company in writing of the Notes selected for purchase and, in the case of any Note selected for partial purchase, the principal amount thereof to be purchased. Notes and portions of Notes selected will be in amounts of $1,000 or whole multiples of $1.00; provided that if all of the Notes of a Holder are to be purchased, the entire outstanding amount of Notes held by such Holder shall be purchased; provided, further, that no Notes in denominations of $2,000 or less may be purchased in part or if a PIK Payment has occurred, no Notes of $1.00 or less shall be purchased in part. Except as provided in the preceding sentence, provisions of this Indenture that apply to Notes purchased also apply to portions of Notes purchased. No later than 10:00 a.m. Eastern time on the Purchase Date, the Company will deposit with the Trustee or with the Paying Agent money sufficient to pay the purchase price of and its Restricted Subsidiaries may use accrued interest or premium, if any, on all Notes to be purchased on that date. The Trustee or the Paying Agent will promptly return to the Company any remaining Excess Asset Sale Proceeds for general corporate purposes and any other purpose not prohibited money deposited with the Trustee or the Paying Agent by this Indenture. Upon completion the Company in excess of the offer amounts necessary to purchasepay the purchase price of, and accrued interest or premium, if any, on all Notes to be purchased. If the amount Company complies with the provisions of Excess Asset Sale Proceeds the preceding paragraph, on and after the Purchase Date, interest will cease to accrue on the Notes or the portions of Notes purchased. If a Note is purchased on or after an interest record date but on or prior to the related interest payment date, then any accrued and unpaid interest shall be reset paid to the Person in whose name such Note was registered at zerothe close of business on such record date. If any Note purchased is not so paid upon surrender for redemption or purchase because of the failure of the Company to comply with the preceding paragraph, interest shall be paid on the unpaid principal, from the redemption or purchase date until such principal is paid, and to the extent lawful on any interest not paid on such unpaid principal, in each case at the rate provided in the Notes and in Section 4.01 hereof.
(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 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 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 this Section 4.10 by virtue of the Company’s compliance with such securities laws or regulationscompliance.
Appears in 1 contract
Samples: Indenture (Castle a M & Co)
Asset Sales. The Company will not, and will not permit any of its Restricted Subsidiaries Subsidiary to, consummate an Asset Sale unlesssell, transfer, lease or otherwise dispose of any asset, including any Equity Interest owned by it, nor will the Company permit any of it Subsidiaries to issue any additional Equity Interest in such Subsidiary, except:
(1a) sales of inventory, used, surplus or obsolete equipment and Permitted Investments in the ordinary course of business;
(b) sales, transfers, leases and dispositions to the Company or the Restricted a Subsidiary, as the case may be, receives consideration at the time of the Asset Sale at least equal to the Fair Market Value (measured as of the date of the definitive agreement with respect to such Asset Sale) of the assets or Equity Interests issued or sold or otherwise disposed of; and
(2) at least 75% of the consideration received in such Asset Sale is in the form of cash or Cash Equivalents; provided that any such sales, transfers, leases or dispositions involving a Subsidiary that is not a Subsidiary Guarantor shall be made in compliance with Section 6.08;
(c) sales or transfers of Receivables and interests therein, together with Related Security, pursuant to a Permitted Receivables Financing;
(d) dispositions of delinquent accounts receivable in connection with the collection or compromise thereof in the ordinary course of business;
(e) sales or exchanges of any item of real property and/or equipment, so long as the purpose of each such sale or exchange is to acquire (and results within 360 days before or after such sale or exchange in the acquisition of) replacement items of real property and/or equipment which are at least the functional equivalent of the following items shall be deemed item of real property and/or equipment so sold or exchanged;
(f) the license in the ordinary course of business of patents, trademarks, servicemarks, trade names, technology, know-how and formulas or other rights to third Persons and to one another, so long as each such license is permitted to be cash assigned by the Company or any of its Subsidiaries pursuant to the Collateral Agreement (to the extent that a security interest in such patents, trademarks, servicemarks, trade names, technology, know-how and Cash Equivalents for formulas or other rights is granted thereunder) and does not otherwise prohibit the purposes granting of this clause (2):a Lien by the Company or any of its Subsidiaries pursuant to the Collateral Agreement in the intellectual property covered by such license;
(ag) leases or subleases granted by the assumption of Company or any liabilities (as shown on Subsidiary to third Persons not interfering in any material respect with the Company’s or the Restricted Subsidiary’s most recent balance sheet) business of the Company or any Restricted of its Subsidiaries;
(h) sales of other assets; provided that either (A) the fair market value of all assets sold pursuant to any single transaction (or series of related transactions) in reliance upon this clause shall not exceed $2,500,000 or (B) in the case of transactions that do not satisfy (A) above, the aggregate fair market value of all assets sold in reliance upon this clause shall not exceed $25,000,000 during any fiscal year;
(i) sales, transfers and other dispositions of assets that are not permitted by any other clause of this Section; provided that the aggregate fair market value of all assets sold, transferred or otherwise disposed of in reliance upon this clause during any fiscal year (excluding warehouses, customer service facilities and other administrative facilities, to the extent that the Net Proceeds from the sale, transfer or disposition thereof are applied to prepay Term Loans pursuant to Section 2.11(c), in which case, and to such extent, such sales, transfers and dispositions shall not be subject to this limitation) shall not exceed $100,000,000;
(j) the issuance or sale by a Subsidiary of Equity Interests to the Company or another Subsidiary in compliance with Section 6.04;
(k) the granting of any Lien permitted by Section 6.02; and
(l) sales, transfers and dispositions of assets of, or Equity Interests in, Subsidiaries; provided that the fair market value of all assets and Equity Interests sold in reliance upon this clause shall not exceed $200,000,000; provided that (A) all sales, transfers, leases and other dispositions permitted hereby (other than liabilities that are those permitted by their terms subordinated to Notes issued under this Indenture or any Subsidiary Guarantee) by the transferee of any such assets pursuant to a customary novation agreement that releases the Company or the Restricted Subsidiary from further liability;
clause (b) any securitiesor (j) above) shall be made for fair value, notes (B) all sales, transfers and dispositions permitted by clause (h), (i) or (l) above (other obligations received than sales, transfers and dispositions of assets to Persons in which an investment, loan or advance has been made in reliance on clause (l) of Section 6.04, the fair market value of which do not exceed $25,000,000 in the aggregate) shall be made for at least 80% Cash Consideration (it being understood that consideration in the form of the assumption by the purchaser of Indebtedness secured by assets sold, or, in the case of the sale of a Subsidiary, Indebtedness of such Subsidiary, shall be ignored for purposes of determining compliance with such 80% Cash Consideration requirement) and (C) if the Company or any Subsidiary sells, transfers or otherwise disposes of Equity Interests in a Subsidiary (other than (1) any Excluded Subsidiary, except any Excluded Subsidiary resulting from the Perbio Acquisition, (2) any Subsidiary the investments in which (including Guarantees) already constitute investments made in reliance on clause (l) of Section 6.04 prior to such Restricted sale, transfer or disposition, (3) any Subsidiary from Guarantor that remains a Subsidiary Guarantor under the Collateral Agreement after giving effect to such transferee sale, transfer or disposition, so long as it remains a Subsidiary Guarantor, and (4) any Subsidiary that are converted was not a Subsidiary Guarantor prior to giving effect to such sale, transfer or disposition, if and so long as there is no agreement or other arrangement that prohibits, restricts or imposes any condition upon the ability of such Subsidiary, or former Subsidiary, to pay dividends or other distributions with respect to any shares of its capital stock thereafter that did not previously exist prior to such sale, transfer or disposition, other than those imposed by law) to a Person other than the Company or another Subsidiary and such sale, transfer or disposition does not include all Equity Interests in such Subsidiary owned by the Company and its other Subsidiaries or the Restricted Subsidiary into cash or Cash Equivalents within 180 days following their receipt (to the extent of cash or Cash Equivalents received); and
(c) any stock or assets of the kind referred to in clauses (b) and (d) of the next paragraph of this Section 4.10. Within 365 days after the receipt of any Net Proceeds from an Asset Sale, the Company or the Restricted Subsidiary, as the case may be, may apply such Net Proceeds, at its option:
(a) to prepay, repay, purchase, repurchase or redeem any secured Indebtedness of the Company or any Restricted other Subsidiary remain liable for any Guarantee of Indebtedness or other obligations of such Subsidiary, then, upon such sale, transfer or disposition (or, if not required to do so by reason of an exception described in clause (3) or (4) above, then upon any failure to continue to satisfy the requirements of such exception), each of the Company;
Company and its Subsidiaries that holds any remaining investments (b) to acquire a controlling interest in another business or all or substantially all of the assets or operating line of another business, in each case engaged in a Permitted Business;
(c) to make capital expenditures; or
(d) to acquire other non-current assets to be used in a Permitted Business. Pending the final application of any such Net Proceeds, the Company may temporarily reduce Indebtedness under any Credit Facility or otherwise expend or invest such Net Proceeds in any manner that is not prohibited by this Indenture. Any Net Proceeds from Asset Sales described in this paragraph that are not applied or invested as provided whether in the first sentence form of this paragraph Equity Interests, loans or advances) in such Subsidiary (or former Subsidiary) or continues to Guarantee any Indebtedness or other obligations of this Section 4.10 such Subsidiary (or former Subsidiary) shall be deemed to constitute “Excess Asset Sale Proceeds.” When have made such investments on the aggregate amount date of Excess Asset Sale Proceeds exceeds $10.0 millionsuch sale, transfer or disposition (or the Company will be required under this Indenture to make an offer to the Holders of Notes issued thereunder and the holders of any other Senior Indebtedness that is subject to requirements with respect to the application of net proceeds from asset sales that are substantially similar to those contained in this Indenture (an “Asset Sale Offer”) to purchase on a pro rata basis (with the Excess Asset Sale Proceeds prorated between the Holders date of the Notes and such holders of such other Senior Indebtedness based upon outstanding aggregate principal amountsfailure to continue to satisfy the relevant exception, if applicable) the maximum principal amount of the Notes and such other Senior Indebtedness that may be purchased or prepaid, as applicable, out of the prorated Excess Asset Sale Proceeds, at an offer price in cash (in an amount equal to 100% the fair market value of such investments on such date or 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. To the extent that the aggregate principal amount of Notes and other Senior Indebtedness tendered (and electing to be redeemed or repaidso Guaranteed on such date, as applicable) pursuant to an Asset Sale Offer is less than the Excess Asset Sale Proceedsin reliance upon clause (l) of Section 6.04 (it being understood that such sale, the Company and its Restricted Subsidiaries may use any remaining Excess Asset Sale Proceeds for general corporate purposes and any other purpose not prohibited by this Indenture. Upon completion of the offer to purchase, the amount of Excess Asset Sale Proceeds transfer or disposition shall 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 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, the Company will comply with the applicable securities laws and regulations and will not be deemed to have breached its obligations permitted if such investments and Guarantees would not be permitted under this clause (l) of Section 4.10 by virtue of the Company’s compliance with such securities laws or regulations6.04).
Appears in 1 contract
Samples: Credit Agreement (Fisher Scientific International Inc)
Asset Sales. The Company will shall not, and will shall not permit any of its Restricted Subsidiaries to, directly or indirectly, consummate an Asset Sale 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 (a) the Fair Market Value (measured as of the date of the definitive agreement with respect to such Asset Sale) fair market value of the assets (other than Designated Assets) or Equity Interests issued or sold or otherwise disposed of and (b) the Designated Asset Value of the Designated Assets sold or otherwise disposed of;
(2) the fair market value or Designated Asset Value, as applicable, 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
(23) at least 75% of the consideration received in such the Asset Sale by the Company or such Restricted Subsidiary is in the form of cash or Cash Equivalents; provided that any of the following items shall be deemed to be cash and Cash Equivalents for the . For purposes of this clause (2):3) only, each of the following will be deemed to be cash:
(aA) the assumption of any liabilities (liabilities, as shown on the Company’s 's or the such Restricted Subsidiary’s 's most recent balance sheet) , of the Company or any Restricted Subsidiary of the Company (other than contingent liabilities and liabilities that are by their terms subordinated to the Notes issued under this Indenture or any Subsidiary Guarantee) that are assumed by the transferee of any such assets pursuant to a customary novation agreement that releases the Company or the such Restricted Subsidiary from further liability;
(bB) any securities, notes or other obligations received by the Company or any such Restricted Subsidiary from such transferee that are converted within 90 days of the applicable Assets Sale by the Company or the such Restricted Subsidiary into cash or Cash Equivalents within 180 days following their receipt (Equivalents, to the extent of the cash or Cash Equivalents received)received in that conversion;
(C) 100% of the securities, notes or other obligations or Indebtedness actually received by the Company as consideration for the sale or other disposition of a Designated Asset pursuant to the terms of a Designated Asset Contract, but only to the extent that such securities, notes or other obligations or Indebtedness were explicitly required to be included, or permitted to be included solely at the option of the purchaser, in such consideration pursuant to the terms of the applicable Designated Asset Contract;
(D) 100% of the Indebtedness actually received by the Company as consideration for the sale or other disposition of an Unoccupied Facility; and
(cE) any stock Designated Non-Cash Consideration received by the Company or assets any such Restricted Subsidiary in the Asset Sale. Notwithstanding the foregoing, the Company and its Restricted Subsidiaries may engage in Asset Swaps; provided that, (1) immediately after giving effect to such Asset Swap, the Company would be permitted to incur at least $1.00 of additional Indebtedness pursuant to the Fixed Charge Coverage Ratio test set forth in Section 4.10(a) hereof and (2) the Board of Directors of the kind referred to in clauses (b) and (d) Company determines that the fair market value of the next paragraph assets received by the Company in the Asset Swap is not less than the fair market value of this Section 4.10. the assets disposed of by the Company in such Asset Swap and such determination is evidenced by a resolution of the Board of Directors set forth in an Officers' Certificate delivered to the Trustee Within 365 360 days after the receipt of any Net Proceeds from an Asset Sale, the Company or the Restricted Subsidiary, as the case may be, may apply such those Net Proceeds, at its option:
(a1) to prepay, repay, purchase, repurchase or redeem any secured repay Indebtedness of the Company or any Restricted Subsidiary of the Companyunder a Credit Facility;
(b2) to acquire a controlling interest in another business or all or substantially all of the assets of, or operating line a majority of the Voting Stock of, another business, in each case engaged in a Permitted Business;
(c3) to make a capital expendituresexpenditure (provided, that the completion of (i) construction of new facilities, (ii) expansions to existing facilities, and (iii) repair or reconstruction of damaged or destroyed facilities which commences within 360 days after the receipt of any Net Proceeds from an Asset Sale by the Company may extend for an additional 360 day period if the Net Proceeds to be used for such construction, expansion or repair are committed to and set aside specifically for such activity within 360 days of their receipt); or
(d4) to acquire other nonlong-current term assets to be that are used or useful in a Permitted Business. Pending the final application of any such Net Proceeds, the Company may temporarily reduce Indebtedness under any Credit Facility or otherwise expend or invest such the Net Proceeds in any manner that is not prohibited by this Indenture. For avoidance of doubt, prior to being required to permanently reduce revolving credit facility commitments, the Company shall have the option of making an Asset Sale Offer in accordance with the terms of this Indenture Any Net Proceeds from Asset Sales described in this paragraph that are not applied or invested as provided in the first sentence of this preceding paragraph of this Section 4.10 shall be deemed to constitute “"Excess Asset Sale Proceeds.” When " Within five days of each date on which the aggregate amount of Excess Asset Sale Proceeds exceeds $10.0 15.0 million, the Company will be required under this Indenture to shall make an offer Asset Sale Offer to the all Holders of Notes issued thereunder and and, at the Company's option, all holders of any other Senior Indebtedness that is subject pari passu with the Notes containing provisions similar to requirements those set forth in this Indenture with respect to the application of net proceeds from asset sales that are substantially similar to those contained in this Indenture (an “Asset Sale Offer”) offers to purchase on a pro rata basis (or redeem with the Excess Asset Sale Proceeds prorated between the Holders proceeds of the Notes and such holders sales of such other Senior Indebtedness based upon outstanding aggregate principal amounts) assets to purchase the maximum principal amount of the Notes and such other Senior pari passu Indebtedness that may be purchased or prepaid, as applicable, out of the prorated Excess Asset Sale Proceeds, at an . The offer price in cash in an amount any Asset Sale Offer shall be equal to 100% of the principal amount thereof plus accrued and unpaid interest thereon to the date of purchase, and will be payable in accordance with cash. If any Excess Proceeds remain after consummation of an Asset Sale Offer, the procedures set forth in Company may use those Excess Proceeds for any purpose not otherwise prohibited by this Indenture. To the extent that If the aggregate principal amount of Notes and other Senior pari passu Indebtedness tendered (and electing to be redeemed or repaid, as applicable) pursuant to an into such Asset Sale Offer is less than exceeds the amount of Excess Asset Sale Proceeds, the Company Trustee shall select the Notes and its Restricted Subsidiaries may use any remaining Excess Asset Sale Proceeds for general corporate purposes and any such other purpose not prohibited by this Indenturepari passu Indebtedness to be purchased on a pro rata basis. Upon completion of the offer to purchaseeach Asset Sale Offer, the amount of Excess Asset Sale Proceeds shall be reset at zero. The Company will shall comply with the requirements of Section 3.09 herein and Rule 14e-1 under the Exchange Act and any other securities laws and regulations thereunder to the extent such those laws and regulations are applicable in connection with 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 Section 4.10Indenture, the Company will shall comply with the applicable securities laws and regulations and will shall not be deemed to have breached its obligations under Section 3.09 hereof or this Section 4.10 4.11 by virtue of the Company’s compliance with such securities laws or regulationsconflict.
Appears in 1 contract
Samples: First Supplemental Indenture (Corrections Corp of America)
Asset Sales. The Company will shall not, and will shall not permit any of its Restricted Subsidiaries to, consummate an Asset Sale unless:
unless (1i) the Company or the such Restricted Subsidiary, as the case may be, receives consideration at the time of the such Asset Sale at least equal to the Fair Market Value fair market value (measured as evidenced by a resolution of the date Board of Directors set forth in an Officers' Certificate delivered to the definitive agreement with respect to such Asset SaleTrustee) of the assets or Equity Interests issued or sold or otherwise disposed of; and
of and (2ii) at least 75% of the consideration therefor received in by the Company or such Asset Sale Restricted Subsidiary is in the form of cash or Cash Equivalentscash; provided that any the amount of the following items shall be deemed to be cash and Cash Equivalents for the purposes of this clause (2):
(a) the assumption of any liabilities (as shown on the Company’s 's or the such Restricted Subsidiary’s 's most recent balance sheet) of the Company or any such Restricted Subsidiary of the Company (other than contingent liabilities and liabilities that are by their terms subordinated to the Notes issued under this Indenture or any Subsidiary Guaranteeguarantee thereof) that are assumed by the transferee of any such assets pursuant to a customary novation agreement that releases the Company or the such Restricted Subsidiary from further liability;
liability and (b) any securities, notes or other obligations received by the Company or any such Restricted Subsidiary from such transferee that are immediately converted by the Company or the such Restricted Subsidiary into cash or Cash Equivalents within 180 days following their receipt (to the extent of the cash or Cash Equivalents received); and
(c) any stock or assets of the kind referred shall be deemed to in clauses (b) and (d) of the next paragraph be cash for purposes of this Section 4.10provision. Within 365 360 days after of the receipt of any Net Proceeds from an Asset Sale, the Company or the Restricted Subsidiary, as the case may be, may apply such Net Proceeds, at its option:
, (ai) to prepay, repay, purchase, repurchase repay Senior Debt (and to correspondingly permanently reduce commitments with respect thereto in the case of revolving borrowings) or redeem any secured Indebtedness (ii) to fulfill reimbursement obligations arising under the LC Facility to the extent such reimbursement obligations arose as a result of actual cash payments having been made under such facility for the benefit of the Company in connection with the Eau Claire IRBs (and to correspondingly permanently reduce reimbursement obligations with respect thereto) or any Restricted Subsidiary to cash collateralize the LC Facility if the Indebtedness under the Credit Agreement has been accelerated or (iii) the making of a capital expenditure or the Company;
acquisition of other long-term assets (bincluding the acquisition of Capital Stock of a Person) to acquire a controlling interest in another business or all or substantially all of the assets or operating same line of another business, in each case engaged in a Permitted Business;
(c) business as the Company immediately prior to make capital expenditures; or
(d) to acquire other non-current assets to be used in a Permitted Businesssuch acquisition. Pending the final application of any such Net Proceeds, the Company may temporarily reduce Indebtedness under any Credit Facility Senior Debt or otherwise expend or invest such Net Proceeds in any manner that is not prohibited by this the Indenture. Any Net Proceeds from Asset Sales described in this paragraph that are not applied or invested as provided in the first sentence of this paragraph of this Section 4.10 shall will be deemed to constitute “"Excess Asset Sale Proceeds.” " When the aggregate amount of Excess Asset Sale Proceeds exceeds $10.0 million5.0 million (an "Excess Proceeds Triggering Event"), the Company will be required under this Indenture to make an offer to the all Holders of Notes issued thereunder and the holders of any other Senior Indebtedness that is subject to requirements with respect to the application of net proceeds from asset sales that are substantially similar to those contained in this Indenture (an “"Asset Sale Offer”") to purchase on a pro rata basis (with the Excess Asset Sale Proceeds prorated between the Holders of the Notes and such holders of such other Senior Indebtedness based upon outstanding aggregate principal amounts) the maximum principal amount of the Notes and such other Senior Indebtedness that may be purchased or prepaid, as applicable, out of the prorated Excess Asset Sale Proceeds, Proceeds at an offer price in cash in an amount equal to 100% of the principal amount thereof thereof, plus accrued and unpaid interest and Liquidated Damages, if any, thereon to the date of purchase, in accordance with pursuant to the procedures set forth in this Indentureprovisions of Section 3.09 hereof. To the extent that the aggregate principal amount of Notes and other Senior Indebtedness tendered (and electing to be redeemed or repaid, as applicable) pursuant to an Asset Sale Offer is less than the Excess Asset Sale Proceeds, the Company and its Restricted Subsidiaries may use any remaining Excess Asset Sale Proceeds for general corporate purposes and any other purpose not prohibited purposes. If the aggregate principal amount of Notes surrendered by this IndentureHolders thereof exceeds the amount of Excess Proceeds, the Trustee shall select the Notes to be purchased on a pro rata basis. Upon completion of the offer to purchasean Asset Sale Offer, the amount of Excess Asset Sale Proceeds shall 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 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, 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 the Company’s compliance with such securities laws or regulations.
Appears in 1 contract
Samples: Indenture (Plainwell Inc)
Asset Sales. (a) The Company will not, and will not permit any of its Restricted Subsidiaries to, consummate an Asset Sale unless:
(1) the Company or the Restricted Subsidiary, as the case may be, receives consideration (including, by way of relief from, or by any other Person assuming responsibility for, any liabilities, contingent or otherwise) at the time of the Asset Sale at least equal to the Fair Market Value (measured as of the date of the definitive agreement with respect to such Asset Sale) of the assets or Equity Interests issued or sold or otherwise disposed of; and
(2) except in the case of a Permitted Asset Swap, at least 75% of the consideration received in the aggregate for all Asset Sales since the Issue Date (on a cumulative basis) (including, by way of relief from, or by any other Person assuming responsibility for, any liabilities, contingent or otherwise) by the Company or such Asset Sale Restricted Subsidiary is in the form of cash or Cash Equivalents; provided that any . For purposes of this Section 4.10(a)(2), each of the following items shall will be deemed to be cash and Cash Equivalents for the purposes of this clause (2):cash:
(aA) the assumption of any liabilities (as shown on the Company’s or the Restricted Subsidiary’s most recent balance sheet) of the Company or any Restricted Subsidiary of the Company (other than liabilities that are by their terms subordinated to the Notes issued under this Indenture or any Note Guarantee), contingent or otherwise of the Company or such Restricted Subsidiary Guarantee(as shown on the Company’s or such Restricted Subsidiary’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 or such Restricted Subsidiary’s 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 in the good faith determination of the Company) that are extinguished in connection with the transactions relating to such Asset Sale or are assumed by the transferee of any such assets pursuant to a customary novation or indemnity agreement that releases the Company or the such Restricted Subsidiary from or indemnifies against further liability;
(bB) any securities, notes or other obligations or assets received by the Company or any such Restricted Subsidiary from such transferee that are within 180 days following the closing of such Asset Sale converted by the Company or the such Restricted Subsidiary into cash or Cash Equivalents within 180 days following their Equivalents;
(C) any Designated Non-cash Consideration received by the Company or such Restricted Subsidiary in such Asset Sale having an aggregate Fair Market Value, taken together with all other Designated Non-cash Consideration received pursuant to this Section 4.10(a)(2)(C) that is at that time outstanding, not to exceed the greater of (x) $100.0 million and (y) 20.0% of LTM EBITDA at the time of the receipt of such Designated Non-cash Consideration (with the Fair Market Value of each item of Designated Non-cash Consideration being measured, at the Company’s option, either at the time of contractually agreeing to such Asset Sale or at the extent time received and without giving effect to subsequent changes in value), net of any such Designated Non-cash Consideration subsequently converted into cash and Cash Equivalents;
(D) consideration consisting of Indebtedness of the Company or Cash Equivalents received)a Restricted Subsidiary that is not Subordinated Indebtedness received from such transferee; and
(cE) Indebtedness of any stock Restricted Subsidiary that is no longer a Restricted Subsidiary as a result of such Asset Sale (other than intercompany debt owed to the Company or assets any of its Restricted Subsidiaries), to the kind referred to extent that the Company and each other Restricted Subsidiary are released from any Guarantee of payment of such Indebtedness in clauses connection with such Asset Sale.
(b) and (d) of the next paragraph of this Section 4.10. Within 365 450 days after the receipt of any Net Proceeds from an Asset SaleSale of Collateral, the Company or the applicable Restricted Subsidiary, Subsidiary (as the case may be, ) may apply an amount (the “Asset Sale Prepayment Amount”) equal to such Net Proceeds, at its option:
(a1) to reduce, prepay, repay, satisfy and discharge, redeem, or purchase, as applicable, either (i) Obligations under the Notes or (ii) First Lien Obligations, other than the Notes (and, if the Indebtedness being reduced, prepaid, repaid, satisfied and discharged, redeemed, or purchased under this clause (ii) is Indebtedness under a revolving credit facility, to correspondingly permanently reduce commitments with respect thereto); provided that in the case of any reduction, prepayment, repayment, satisfaction and discharge, redemption, or purchase pursuant to clause (ii), (x) unless such First Lien Obligations, other than the Notes, constitute Capital Markets Indebtedness, to the extent that the terms of such First Lien Obligations require that such Net Proceeds be applied to repay Indebtedness outstanding under such First Lien Obligations prior to the prepayment of other First Lien Obligations, the Company or the applicable Restricted Subsidiary shall be entitled to repay such First Lien Obligations prior to repaying Indebtedness under the Notes, and (y) except as provided in the foregoing subclause (x), the Company or such Restricted Subsidiary shall equally and ratably redeem or repurchase the Notes with any First Lien Obligations repaid pursuant to clause (ii) with such Asset Sale Prepayment Amount as described above under “—Optional Redemption,” or redeem by making an offer (in accordance with the procedures set forth below for an Asset Sale Offer) to all Holders to purchase a pro rata principal amount of the Notes at 100% of the principal amount thereof, plus accrued and unpaid interest, if any, to, but not including, the date of purchase;
(2) to repay any secured Indebtedness of a Restricted Subsidiary of the Company that is not a Guarantor (other than Indebtedness owed to the Company or another Restricted Subsidiary of the Company);
(3) to acquire all or substantially all of the assets of, or any Capital Stock of, a 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;
(4) to (i) make (a) acquisitions of properties (including fee and leasehold interests) and other assets, (b) a capital expenditure and (c) investments in Additional Assets or (ii) replace the businesses, properties and/or assets that are the subject of such Asset Sale;
(5) to acquire other assets (other than current assets) that are used or useful in a controlling interest Permitted Business; or
(6) any combination of the foregoing. Any Net Proceeds in another business respect of any sale of assets other than an Asset Sale of Collateral may be invested or utilized in any manner not prohibited by this Indenture. The Company will be deemed to have complied with the provisions set forth in Sections 4.10(b)(3), 4.10(b)(4) or 4.10(b)(5) if, (i) within 450 days after the receipt of the Net Proceeds from the Asset Sale that generated the Asset Sale Prepayment Amount, the Company (or the applicable Restricted Subsidiary) have entered into and not abandoned or rejected a binding agreement or commitment to acquire all or substantially all of the such assets of, or operating line of any Capital Stock of, another business, in each case engaged Permitted Business or to make a capital expenditure or acquire such other assets that are not classified as current assets under GAAP and that are used or useful in a Permitted Business;
Business and that acquisition or capital expenditure is thereafter completed within 180 days after the end of such 450-day period or (cii) to make capital expendituresin the event such binding agreement described in the preceding clause (i) is canceled or terminated for any reason before such Asset Sale Prepayment Amount is applied, the Company (or the applicable Restricted Subsidiary) enter into another such binding commitment within 180 days of such cancellation or termination of the prior binding commitment; or
(d) to acquire other non-current assets to be used in a Permitted Businessprovided that if any second binding commitment is later canceled or terminated for any reason before such Asset Sale Prepayment Amount is applied within 180 days of such second binding commitment, then such Asset Sale Prepayment Amount shall constitute Excess Proceeds. Pending the final application of any such Net ProceedsAsset Sale Prepayment Amount, the Company or any of its Restricted Subsidiaries may temporarily reduce Indebtedness including under any Credit Facility a revolving credit facility, if any, or otherwise expend invest or invest utilize such Net Proceeds Asset Sale Prepayment Amount in any manner that is not prohibited by this Indenture. .
(c) Any Net Proceeds from Asset Sales described in this paragraph Sale Prepayment Amount that are is not applied or invested as provided in Sections 4.10(a) and 4.10(b) will constitute “Excess Proceeds”; provided that any amount of proceeds offered to Holders in accordance with Section 4.10(b)(1) or pursuant to an Asset Sale Offer (as defined below) made at any time after the first sentence of this paragraph of this Section 4.10 Asset Sale shall be deemed to constitute “have been applied as required and shall not be deemed to be Excess Asset Sale Proceeds.” Proceeds without regard to the extent to which such offer is accepted by the Holders. When the aggregate amount of Excess Asset Sale Proceeds in any fiscal year exceeds the greater of $10.0 million120.0 million and 25.0% of LTM EBITDA (the “Excess Proceeds Threshold Amount”), the Company will be make an Asset Sale Offer to all Holders of the Notes and, if required under by the terms of other First Lien Obligations (in the case of an Asset Sale of Collateral) that in each case, contain provisions similar to those set forth in this Indenture to make an offer to the Holders of Notes issued thereunder and the holders of any other Senior Indebtedness that is subject to requirements with respect to offers to purchase, prepay or redeem with an amount equal to the application proceeds of net proceeds from asset sales that are substantially similar of assets to those contained in this Indenture (an “Asset Sale Offer”) to purchase purchase, prepay or redeem on a pro rata basis (with the Excess Asset Sale Proceeds prorated between the Holders of the Notes and such holders of such other Senior Indebtedness based upon outstanding aggregate principal amounts) the maximum principal amount (or accreted value, if applicable) of the Notes and such other Senior First Lien Obligations (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 purchased, prepaid or prepaid, as applicable, out of redeemed with an amount equal to the prorated Excess Asset Sale Proceeds, at an Proceeds less the Excess Proceeds Threshold Amount. The offer price in cash in an amount any Asset Sale Offer will be equal to 100% of the principal amount thereof amount, plus accrued and unpaid interest thereon to interest, if any, to, but not including, the date of purchase, prepayment or redemption, subject to the right of Holders of Notes on a relevant record date to receive interest due on an Interest Payment Date occurring on or prior to the purchase date, and will be payable in accordance cash. The Company may satisfy the foregoing obligations with respect to such Asset Sale Prepayment Amount by making an Asset Sale Offer with respect to such Asset Sale Prepayment Amount at any time prior to the expiration of the application period or by electing to make an Asset Sale Offer with respect to such Asset Sale Prepayment Amount. If the amount of Excess Proceeds exceeds the amount paid in connection with the procedures set forth in consummation of an Asset Sale Offer (any such excess amount, “Retained Declined Proceeds”), the Company may use those Retained Declined Proceeds for any purpose not otherwise prohibited by this Indenture. To the extent that If the aggregate principal amount of Notes and or the other Senior Indebtedness tendered (and electing to be redeemed or repaidFirst Lien Obligations, as applicable, tendered in (or required to be prepaid or redeemed in connection with) pursuant to an such Asset Sale Offer is less than exceeds the amount of Excess Asset Sale Proceeds, the Company will select the Notes and its Restricted Subsidiaries such other First Lien Obligations, as applicable, to be purchased on a pro rata basis, based on the amounts tendered or required to be prepaid or redeemed and thereafter the Company will select the Notes to be purchased on a pro rata basis (subject to DTC’s applicable procedures with respect to the Global Notes) based on the principal amount tendered (with, in each case, such adjustments as may use 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; provided that any remaining Excess Asset Sale Proceeds for general corporate purposes and any other purpose not prohibited by this Indentureunpurchased portion of a Note must be in a minimum denomination of $2,000). Upon completion of the offer to purchaseeach Asset Sale Offer, the amount of Excess Asset Sale Proceeds shall will be reset at zero.
(d) To the extent that any portion of the Net Proceeds of an Asset Sale payable in respect of the Notes is denominated in a currency other than U.S. dollars, the amount thereof payable in respect of the Notes shall not exceed the net amount of funds in U.S. dollars that is actually received by the Company upon converting such portion into U.S. dollars.
(e) Notwithstanding any other provisions of this Section 4.10, (i) to the extent that the application of any or all of the Net Proceeds of any Asset Sale by a Foreign Subsidiary (a “Foreign Disposition”) would be (x) prohibited or delayed by applicable local law, (y) restricted by applicable organizational documents or any agreement or (z) subject to other organizational or administrative impediments if distributed by the Foreign Subsidiary to the Company (either directly or indirectly through the applicable Subsidiaries), an amount equal to the portion of such Net Proceeds so affected will not be required to be applied in compliance with this Section 4.10; and (ii) to the extent that the Company has determined in good faith that the distribution by the applicable Foreign Subsidiary of any or all of the Net Proceeds of any Foreign Disposition to the Company (either directly or indirectly through the applicable Subsidiaries) could have a material adverse tax consequence to the Company or any of its Subsidiaries, Affiliates or direct or indirect owners (which, for the avoidance of doubt, includes, but is not limited to, the incurrence of any non-de minimis Tax liability (determined in good faith by the Company), including as a result of a dividend or a withholding tax) (together with clauses (i)(x), (i)(y) and (i)(z) of this paragraph, each, a “Payment Block”), an amount equal to such Net Proceeds will not be required to be applied in compliance with this Section 4.10, provided that the Company and its Subsidiaries shall not be required to monitor any Payment Block and/or reserve cash for future repatriation after the Company has notified the Trustee of the existence of such Payment Block. The non-application of any prepayment amounts as a consequence of the foregoing provisions will not, for the avoidance of doubt, constitute a Default or an Event of Default. For the avoidance of doubt, nothing in this Indenture shall be construed to require any Subsidiary to repatriate cash.
(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 such 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 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 or this Section 4.10 by virtue of the Company’s compliance with such securities laws or regulationscompliance.
Appears in 1 contract
Samples: Indenture (DIEBOLD NIXDORF, Inc)
Asset Sales. The Company will and Holdings shall not, and will shall not permit any of its Restricted their respective Subsidiaries to, to consummate an Asset Sale unless:
unless (1i) the Company Company, Holdings or the Restricted Subsidiary, as the case may be, receives consideration at the time of the such Asset Sale at least equal to the Fair Market Value fair market value (measured as of evidenced by a Board Resolution set forth in an Officers' Certificate delivered to the date of the definitive agreement with respect to such Asset SaleTrustee) of the assets or Equity Interests issued or sold or otherwise disposed of; and
of and (2ii) at least 75% of the consideration therefor received in by the Company, Holdings or such Asset Sale Restricted Subsidiary is in the form of cash or Cash Equivalents; provided that any the amount of the following items shall be deemed to be cash and Cash Equivalents for the purposes of this clause (2):
(ax) the assumption of any liabilities (as shown on the Company’s 's, Holdings' or the such Restricted Subsidiary’s 's most recent balance sheet) of the Company Company, Holdings or any Restricted Subsidiary of the Company (other than contingent liabilities and liabilities that are by their terms subordinated to Notes issued under this Indenture the Notes), the Holdings Guarantee or any Subsidiary Guarantee) that are assumed by the transferee of any such assets pursuant to a customary novation agreement that releases the Company Company, Holdings or the such Restricted Subsidiary from further liability;
liability and (by) any securities, notes or other obligations received by the Company Company, Holdings or any such Restricted Subsidiary from such transferee that are immediately converted by the Company Company, Holdings or the such Restricted Subsidiary into cash or Cash Equivalents within 180 days following their receipt (to the extent of the cash or Cash Equivalents received); and
(c) any stock or assets of the kind referred , shall be deemed to in clauses (b) and (d) of the next paragraph be cash for purposes of this Section 4.10Section. Within 365 360 days after the receipt of any Net Proceeds from an Asset Sale, the Company or the Restricted SubsidiaryHoldings, as the case may be, may apply such Net Proceeds, at its option:
, (a) to prepay, repay, purchase, repurchase permanently reduce outstanding Senior Indebtedness (and correspondingly reduce commitments thereunder) or redeem any secured Indebtedness of the Company or any Restricted Subsidiary of the Company;
(b) to acquire a controlling interest in another business business, the making of a capital expenditure or all or substantially all the acquisition of the assets or operating line of another businessother long-term assets, in each case case, in the same or a similar line of business as the Company was engaged in a Permitted Business;
(c) to make capital expenditures; or
(d) to acquire other non-current assets to be used in a Permitted Businesson the date of this Indenture. Pending the final application of any such Net Proceeds, the Company or Holdings, as the case may be, may temporarily reduce revolving credit Indebtedness under any Credit Facility or otherwise expend or invest such Net Proceeds in any manner that is not prohibited by this Indenture. Any Net Proceeds from Asset Sales described in this paragraph that are not applied or invested as provided in the first sentence of this paragraph of this Section 4.10 shall will be deemed to constitute “"Excess Asset Sale Proceeds.” " When the aggregate amount of Excess Asset Sale Proceeds exceeds $10.0 5.0 million, the Company will be required under this Indenture to make and Holdings shall commence an offer to the Holders of Notes issued thereunder and the holders of any other Senior Indebtedness that is subject to requirements with respect to the application of net proceeds from asset sales that are substantially similar to those contained in this Indenture (an “Asset Sale Offer”) Offer pursuant to Section 3.09 hereof to purchase on a pro rata basis (with the Excess Asset Sale Proceeds prorated between the Holders of the Notes and such holders of such other Senior Indebtedness based upon outstanding aggregate principal amounts) the maximum principal amount of the Notes and such other Senior Indebtedness that may be purchased or prepaid, as applicable, out of the prorated Excess Asset Sale Proceeds, Proceeds at an offer price in cash in an amount equal to 100% of the principal amount thereof plus accrued and unpaid interest and Liquidated Damages, if any, thereon to the date of purchase, in accordance with the procedures set forth in this IndentureSection 3.09 hereof. To the extent that the aggregate principal amount of Notes and other Senior Indebtedness tendered (and electing to be redeemed or repaid, as applicable) pursuant to an Asset Sale Offer is less than the Excess Asset Sale Proceeds, the Company and its Restricted Subsidiaries or Holdings, as the case may be, may use any remaining Excess Asset Sale Proceeds for general corporate purposes and any other purpose not prohibited purposes. If the aggregate principal amount of Notes surrendered by this IndentureHolders thereof exceeds the amount of Excess Proceeds, the Trustee shall select the Notes to be purchased on a pro rata basis. Upon completion of the such offer to purchase, the amount of Excess Asset Sale Proceeds shall 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 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, 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 the Company’s compliance with such securities laws or regulations.
Appears in 1 contract
Samples: Indenture (Desa Holdings Corp)
Asset Sales. The Company will shall not, and will shall not permit any of its Restricted Subsidiaries to, consummate an Asset Sale unless:
(1i) the Company (or the Restricted Subsidiary, as the case may be, ) receives consideration at the time of the such Asset Sale at least equal to the Fair Market Value (measured as of the date of the definitive agreement with respect to such Asset Sale) fair market value of the assets or Equity Interests issued or sold or otherwise disposed ofof (as determined in good faith by the Company);
(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) at least 75% of the consideration therefor received in by the Company or such Asset Sale Restricted Subsidiary is in the form of cash or Cash Equivalents; provided that any . For purposes of this provision, each of the following items shall be deemed to be cash and Cash Equivalents for the purposes of this clause (2):cash:
(aA) the assumption of any liabilities (as shown on the Company’s 's or the such Restricted Subsidiary’s 's most recent balance sheet) ), of the Company or any Restricted Subsidiary of the Company (other than contingent liabilities and liabilities that are by their terms subordinated to the Notes issued under this Indenture or any Subsidiary GuaranteeGuaranty) that are assumed by the transferee of any such assets pursuant to a customary novation agreement that releases the Company or the such Restricted Subsidiary from further liability;
(bB) any securities, notes or other obligations received by the Company or any such Restricted Subsidiary from such transferee that are converted by the Company or the such Restricted Subsidiary into cash or Cash Equivalents within 180 days following their receipt after the consummation of such Asset Sale (to the extent of the cash or Cash Equivalents receivedreceived in that conversion); and
(C) any Designated Noncash Consideration received by the Company or any of its Restricted Subsidiaries in such Asset Sale; PROVIDED that the aggregate fair market value (as determined above) of such Designated Noncash Consideration, taken together with the fair market value at the time of receipt of all other Designated Noncash Consideration received pursuant to this clause (c) any stock or assets less the amount of Net Proceeds previously realized in cash from prior Designated Noncash Consideration is less than 5.0% of Total Assets at the time of the kind referred receipt of such Designated Noncash Consideration (with the fair market value of each item of Designated Noncash Consideration being measured at the time received and without giving effect to subsequent changes in clauses (b) and (d) of the next paragraph of this Section 4.10value). Within 365 days after the receipt of any Net Proceeds from an Asset Sale, the Company or the Restricted Subsidiary, as the case may be, may apply such Net Proceeds, Proceeds at its option:
(ai) to prepayrepay Senior Debt, repayand if such Senior Debt repaid is revolving credit Indebtedness, purchase, repurchase or redeem any secured Indebtedness of the Company or any Restricted Subsidiary of the Companyto correspondingly reduce commitments with respect thereto ;
(bii) to acquire a controlling interest in another business or all or substantially all of the assets of, or operating line a majority of the Voting Stock of, another business, in each case engaged in a Permitted Business;
(ciii) to make a capital expendituresexpenditure; orand/or
(div) to acquire other nonlong-current term assets to be that are used or useful in a Permitted Business. Pending the final application of any such Net Proceeds, the Company may temporarily reduce Indebtedness under any Credit Facility revolving credit borrowings or otherwise expend or invest such Net Proceeds in any manner that is not prohibited by this Indenture. Any Net Proceeds from Asset Sales described in this paragraph that are not applied or invested as provided in the first sentence of this preceding paragraph of this Section 4.10 shall be deemed to will constitute “"Excess Asset Sale Proceeds.” " When the aggregate amount of Excess Asset Sale Proceeds exceeds $10.0 20.0 million, the Company will be required under this Indenture to make an offer Asset Sale Offer to the all Holders of Notes issued thereunder and the all holders of any other Senior Indebtedness that is subject PARI PASSU with the Notes containing provisions similar to requirements those set forth in this Indenture with respect to the application of net proceeds from asset sales that are substantially similar to those contained in this Indenture (an “Asset Sale Offer”) offers to purchase on a pro rata basis (or redeem with the Excess Asset Sale Proceeds prorated between the Holders proceeds of the Notes and such holders sales of such other Senior Indebtedness based upon outstanding aggregate principal amounts) assets to purchase the maximum principal amount of the Notes and such other Senior PARI PASSU Indebtedness that may be purchased or prepaid, as applicable, out of the prorated Excess Asset Sale Proceeds, at an . The offer price in cash in an amount any Asset Sale Offer will be equal to 100% of the principal amount thereof plus accrued and unpaid interest thereon and Liquidated Damages, if any, to the date of purchase, and will be payable in accordance with cash. If any Excess Proceeds remain after consummation of an Asset Sale Offer, the procedures set forth in Company may use such Excess Proceeds for any purpose not otherwise prohibited by this Indenture. To the extent that If the aggregate principal amount of Notes and such other Senior PARI PASSU Indebtedness tendered (and electing to be redeemed or repaid, as applicable) pursuant to an into such Asset Sale Offer is less than exceeds the amount of Excess Asset Sale Proceeds, the Company Trustee shall select the Notes and its Restricted Subsidiaries may use any remaining Excess Asset Sale Proceeds for general corporate purposes such other PARI PASSU Indebtedness to be purchased on a pro rata basis based on the principal amount of Notes and any such other purpose not prohibited by this IndenturePARI PASSU Indebtedness tendered. Upon completion of the offer to purchaseeach Asset Sale Offer, the amount of Excess Asset Sale Proceeds shall 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. To the extent that the provisions of any securities laws or regulations conflict with the Asset Sales provisions of this Section 4.10Indenture, 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 Section 4.10 Indenture by virtue of the Company’s compliance with such securities laws or regulationsconflict.
Appears in 1 contract
Samples: Indenture (Mark I Molded Plastics of Tennessee Inc)
Asset Sales. (a) The Company will shall not, and will shall not permit any of its Restricted Subsidiaries toto (i) sell, consummate lease, convey or otherwise dispose of any assets (including, without limitation, by way of a sale and leaseback) other than sales of inventory in the ordinary course of business consistent with past practices (provided, that the sale, lease, conveyance or other disposition of all or substantially all of the assets of the Company and its Subsidiaries taken as a whole shall be governed by the provisions of Section 7.1 and/or 8.11 hereof and not by the provisions of this Section 8.5) or (ii) issue or sell Equity Interests of any of the Company’s Subsidiaries, in the case of either clause (i) or (ii), whether in a single transaction or a series of related transactions (A) that have a fair market value in excess of $1,000,000 or (B) for Net Proceeds in excess of $1,000,000 (each of the foregoing, an “Asset Sale unless:
Sale”), unless (1i) the Company (or the Restricted Subsidiary, as the case may be, ) receives consideration at the time of the such Asset Sale at least equal to the Fair Market Value fair market value (measured as evidenced by a resolution of the date Board of Directors set forth in an officers’ certificate delivered to the definitive agreement with respect to such Asset SaleHolders) of the assets or Equity Interests issued or sold or otherwise disposed of; and
of and (2ii) at least 7580% of the consideration therefor received in by the Company or such Asset Sale Subsidiary is in the form of cash or Cash Equivalentscash; provided provided, however, that any the amount of the following items shall be deemed to be cash and Cash Equivalents for the purposes of this clause (2):
(aA) the assumption of any liabilities (as shown on the Company’s or the Restricted such Subsidiary’s most recent balance sheet) of the Company or any Restricted Subsidiary of the Company (other than contingent liabilities and liabilities that are by their terms subordinated to Notes issued under this Indenture or any Subsidiary Guaranteethe Notes) that are assumed by the transferee of any such assets pursuant to a customary novation agreement that releases any arrangement releasing the Company or the Restricted such Subsidiary from further liability;
liability and (bB) any securities, notes or other obligations received by the Company or any such Restricted Subsidiary from such transferee that are immediately converted by the Company or the Restricted such Subsidiary into cash or Cash Equivalents within 180 days following their receipt (to the extent of the cash or Cash Equivalents received); and
, shall be deemed to be cash for purposes of this provision. Notwithstanding the foregoing, Asset Sales shall not be deemed to include (ci) a transfer of assets by the Company to a Wholly Owned Subsidiary, or by a Wholly Owned Subsidiary of the Company to the Company or to another Wholly Owned Subsidiary, (ii) the issuance of Equity Interests by a Wholly Owned Subsidiary to the Company or to a Wholly Owned Subsidiary, (iii) a Restricted Payment or Permitted Investment that is permitted by the provisions of Section 8.2 hereof, (iv) the creation of Permitted Liens and the disposition of assets subject to such Liens by or on behalf of the Person holding such Liens, (v) the sale of accounts receivable pursuant to a Qualified Receivables Transaction and (vi) any stock or assets disposition of the kind referred to in clauses Cash Equivalents.
(b) and (d) of the next paragraph of this Section 4.10. Within 365 360 days after the receipt of any Net Proceeds from an Asset Sale, the Company or the Restricted Subsidiary, as the case may be, any Subsidiary may apply such Net Proceeds, at its option:
Proceeds (ai) to prepaypermanently reduce Indebtedness ranking, repayactually or structurally, purchase, repurchase senior to or redeem any secured Indebtedness of pari passu with the Company Notes (and to correspondingly reduce commitments with respect thereto) or any Restricted Subsidiary of the Company;
(bii) to acquire the acquisition of a controlling interest in another business business, the making of a capital expenditure or all or substantially all the acquisition of the assets or operating line of another businessother long-term assets, in each case case, in the same or a similar line of business as the Company was engaged in a Permitted Business;
(c) to make capital expenditures; or
(d) to acquire other non-current assets to be used in a Permitted Businesson the date of this Agreement. Pending the final application of any such Net Proceeds, the Company may temporarily reduce revolving credit Indebtedness under any the Credit Facility Agreement or otherwise expend or invest such Net Proceeds in any manner that is not prohibited by this IndentureAgreement. Any Net Proceeds from Asset Sales described in this paragraph that are not applied or invested as provided in the first sentence of this paragraph of this Section 4.10 shall be deemed to constitute “Excess Asset Sale Proceeds.” ”. When the aggregate amount of Excess Asset Sale Proceeds exceeds $10.0 million5,000,000, the Company will be required under this Indenture to shall make an offer to the Holders of Notes issued thereunder and the holders of any other Senior Indebtedness that is subject to requirements with respect to the application of net proceeds from asset sales that are substantially similar to those contained in this Indenture (an “Asset Sale Offer”) Offer pursuant to purchase on a pro rata basis (with the Excess Asset Sale Proceeds prorated between the Section 7.9 hereof to all Holders of the Notes and such all holders of such other Senior Indebtedness based upon outstanding aggregate principal amounts) the Subordinated Notes to purchase the maximum principal amount of the Notes and such other Senior Indebtedness Subordinated Notes that may be purchased or prepaid, as applicable, out of the prorated Excess Asset Sale Proceeds, at an offer price in cash in an amount equal to 100% of the principal amount thereof thereof, plus accrued and unpaid interest and Special Interest, if any, thereon to the date of purchase, in accordance with the procedures set forth in this IndentureSection 7.9 hereof. To the extent that the aggregate principal amount of the Notes and other Senior Indebtedness the Subordinated Notes tendered (and electing to be redeemed or repaid, as applicable) pursuant to an Asset Sale Offer is less than the Excess Asset Sale Proceeds, the Company and its Restricted Subsidiaries may use any remaining Excess Asset Sale Proceeds for general corporate purposes purposes. If the aggregate principal amount of the Notes and any other purpose not prohibited the Subordinated Notes surrendered by this IndentureHolders of Notes and holders of Subordinated Notes, respectively, collectively exceeds the amount of Excess Proceeds, the Company shall select the Notes and the Subordinated Notes to be purchased on a pro rata basis. Upon completion of the such offer to purchase, the amount of Excess Asset Sale Proceeds shall 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 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, 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 the Company’s compliance with such securities laws or regulations.
Appears in 1 contract
Asset Sales. (a) The Company will shall not, and will shall not cause or permit any of its Restricted Subsidiaries to, consummate an directly or indirectly, con- 76 -71- summate any Asset Sale unless:
unless (1) the Company or the Restricted such Subsidiary, as the case may be, receives consideration therefor at the time of the Asset Sale thereof at least equal to the Fair Market Value (measured as fair market value at the time of such Asset Sale of the date property, assets or stock that is the subject of the definitive agreement with respect to such Asset Sale) of the assets or Equity Interests issued or sold or otherwise disposed of; and
, (2) at least 75% of the consideration received in therefor by the Company or such Asset Sale Subsidiary is in the form of cash or Cash Equivalents; provided that any Equivalents and (3) all of the Net Cash Proceeds in respect thereof are applied by the Company or a Subsidiary of the Company in accordance with Section 2.4A(ii)(b).
(b) Notwithstanding the foregoing, none of the following items shall be deemed to be cash and Cash Equivalents an Asset Sale for the purposes of this clause (2Section 2.4(A)(ii)(b):
(ai) each of the assumption Company and its Subsidiaries may make sales or other transfers of any liabilities airtime in the ordinary course of business and consistent with past practices;
(as shown on ii) licenses or sublicenses by the Company’s Company and its Subsidiaries of software, trademarks and other intellectual property and general intangibles and licenses, leases or subleases of other property in the Restricted Subsidiary’s most recent balance sheet) ordinary course of business and which do not materially interfere with the business of the Company or any Restricted Subsidiary;
(iii) the Company or any Subsidiary of the Company may transfer assets to or lease assets to or acquire or lease assets from the Company or any Subsidiary to the extent permitted under the Bank Financing Documents or any Subsidiary of Chancellor may be merged or consolidated with or into, or be liquidated or dissolved into, Chancellor or any other Subsidiary of the Company (other than liabilities that are by their terms subordinated to Notes issued under this Indenture so long as Chancellor or any such Subsidiary Guarantee) by is the transferee of any such assets pursuant to a customary novation agreement that releases the Company or the Restricted Subsidiary from further liabilitysurviving corporation);
(biv) any securities, notes or other obligations received by the Company or any such Restricted Subsidiary from such transferee that are converted by the Company or the Restricted Subsidiary into cash or Cash Equivalents within 180 days following their receipt (to the extent otherwise permitted pursuant to the Bank Financing Documents, Chancellor may, and may permit its Subsidiaries to, simultaneously enter into a Station Swap or a Stock Swap (each as defined in the Bank Financing Documents), so long as any cash proceeds received by Chancellor or any of cash its Subsidiaries in connection with any such Stock Swap or Cash Equivalents receivedStation Swap shall be applied in accordance with Section 2.4A(ii)(b) of this Agreement and Section 4.02(e) of the Bank Financing Documents;
(vi) transfers of condemned property to the respective governmental authority or agency that have condemned same (whether by deed in lieu of condemnation or otherwise), and transfers of properties that have been subject to a casualty to the respective insurer of such property or its designee as part of any insurance settlement, so long as the proceeds thereof are applied as required by Section 4.02(g) of the Bank Financing Documents;
(vii) the SFX Exchange (as defined in the Bank Financing Documents) shall be permitted; and
(cviii) any stock or assets each of the kind referred Company and its Subsidiaries may sell or otherwise dispose of equipment in the ordinary course of business which, in the reasonable judgment of such Person, is obsolete, worn out or otherwise no longer useful, in the conduct of such Person's business. Nothing in this covenant shall be deemed to in clauses (b) and (d) prevent the exercise of the next paragraph of this Section 4.10. Within 365 days after the receipt of any Net Proceeds from an Asset Sale, the Company or the Restricted Subsidiary, as the case may be, may apply such Net Proceeds, at its option:
(a) to prepay, repay, purchase, repurchase or redeem any remedies by secured Indebtedness creditors of the Company or any Restricted Subsidiary of the Company;
(b) to acquire a controlling interest in another business or all or substantially all of the assets or operating line of another business, in each case engaged in a Permitted Business;
(c) to make capital expenditures; or
(d) to acquire other non-current assets to be used in a Permitted Business. Pending the final application of any such Net Proceeds, the Company may temporarily reduce Indebtedness under any Credit Facility or otherwise expend or invest such Net Proceeds in any manner that is not prohibited by this Indenture. Any Net Proceeds from Asset Sales described in this paragraph that are not applied or invested as provided in the first sentence of this paragraph of this Section 4.10 shall be deemed to constitute “Excess Asset Sale Proceeds.” When the aggregate amount of Excess Asset Sale Proceeds exceeds $10.0 million, the Company will be required under this Indenture to make an offer to the Holders of Notes issued thereunder and the holders of any other Senior Indebtedness that is subject to requirements with respect to the application of net proceeds from asset sales that are substantially similar to those contained in this Indenture (an “Asset Sale Offer”) to purchase on a pro rata basis (with the Excess Asset Sale Proceeds prorated between the Holders of the Notes and such holders of such other Senior Indebtedness based upon outstanding aggregate principal amounts) the maximum principal amount of the Notes and such other Senior Indebtedness that may be purchased or prepaid, as applicable, out of the prorated Excess Asset Sale 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. To the extent that the aggregate principal amount of Notes and other Senior Indebtedness tendered (and electing to be redeemed or repaid, as applicable) pursuant to an Asset Sale Offer is less than the Excess Asset Sale Proceeds, the Company and its Restricted Subsidiaries may use any remaining Excess Asset Sale Proceeds for general corporate purposes and any other purpose not prohibited by this Indenture. Upon completion of the offer to purchase, the amount of Excess Asset Sale Proceeds shall 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 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, 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 the Company’s compliance with such securities laws or regulations.
Appears in 1 contract
Samples: Senior Credit Agreement (Chancellor Radio Broadcasting Co)
Asset Sales. The Company will not, and will not permit any of its Restricted Subsidiaries to, consummate an Asset Sale unless:
(1a) the Company or the a Restricted Subsidiary, as the case may be, receives consideration at the time of the Asset Sale at least equal to the Fair Market Value (measured as of the date of the definitive agreement with respect to such Asset Sale) of the assets or Equity Interests issued or sold or otherwise disposed of; , and
(2b) at least 75% of the consideration received for the assets sold by the Company or the Restricted Subsidiary, as the case may be, in such the Asset Sale is shall be in the form of (1) cash or Cash Equivalents; provided that any of the following items shall be deemed , (2) assets (other than current assets as determined in accordance with IFRS or Capital Stock) to be cash and Cash Equivalents for the purposes of this clause (2):
(a) the assumption of any liabilities (as shown on the Company’s or the Restricted Subsidiary’s most recent balance sheet) of used by the Company or any Restricted Subsidiary in a Permitted Business, (3) Capital Stock in a Person engaged primarily in a Permitted Business that will become a Restricted Subsidiary as a result of the Company such Asset Sale, (other than liabilities that are by their terms subordinated to Notes issued under this Indenture or any Subsidiary Guarantee4) by the transferee of any such assets Indebtedness assumed pursuant to a customary novation agreement (5) to the extent not otherwise included in (4), the Fair Market Value of the discharge of any Lien granted by the Company or any Restricted Subsidiary in connection with the Asset Sale or (6) a combination of any of the foregoing. The Company and one or more Restricted Subsidiaries, as the case may be, may apply within 365 days of any Asset Sale an amount equal to the Net Cash Proceeds from any such Asset Sale to:
(a) repay any Senior Indebtedness of the Company or a Restricted Subsidiary (other than a Project Finance Subsidiary unless the Asset Sale was made by a Project Finance Subsidiary) for borrowed money (including any such Indebtedness represented by bonds, notes, debentures or other similar instruments)or constituting a Capitalized Lease Obligation, or
(b) purchase or enter into a binding contract to purchase (or within such 365-day period, the Board of Directors shall have made a good faith determination to purchase; provided, that releases the Company or one or more Restricted Subsidiaries shall have purchased or entered into a binding contract to purchase within 60 days of such good faith determination to purchase):
(1) assets (other than current assets as determined in accordance with IFRS or Capital Stock) to be used by the Company or any Restricted Subsidiary (other than a Project Finance Subsidiary unless the Asset Sale was made by a Project Finance Subsidiary) in a Permitted Business, or
(2) Capital Stock of a Person engaged in a Permitted Business that will become, upon purchase, a Restricted Subsidiary (other than a Project Finance Subsidiary unless the Asset Sale was made by a Project Finance Subsidiary); from a Person other than the Company and its Restricted Subsidiaries; or
(c) to make Capital Expenditures. Notwithstanding the foregoing, if an Asset Sale is the result of an involuntary expropriation, nationalization, taking or similar action by or on behalf of any Governmental Authority, such Asset Sale need not comply with clauses (a) and (b) of the first paragraph of this covenant. In addition, the proceeds of any such Asset Sale shall not be deemed to have been received (and the 365-day period in which to apply any Net Cash Proceeds shall not begin to run) until the proceeds to be paid by or on behalf of the Governmental Authority have been paid in cash to the Company or the Restricted Subsidiary from further liability;
(b) making such Asset Sale and if any litigation, arbitration or other action is brought contesting the validity of or any other matter relating to any such expropriation, nationalization, taking or other similar action, including the amount of the compensation to be paid in respect thereof, until such litigation, arbitration or other action is finally settled or a final judgment or award has been entered and any such judgment or award has been collected in full. For the purpose of this Section 4.10, any securities, notes or other obligations received by the Company or any such Restricted Subsidiary from such transferee will be deemed to be cash to the extent, and in the amount, that they are converted by the Company or the such Restricted Subsidiary into cash or Cash Equivalents within 180 90 days following their of the receipt thereof (subject to ordinary settlement periods). The Fair Market Value of the discharge of any Lien in connection with a foreclosure will be deemed to be the price received in connection with such foreclosure. To the extent of cash or there are any remaining Net Cash Equivalents received); and
(c) any stock or assets of the kind referred to Proceeds that have not been applied as described in clauses (a) , (b) and (dc) of the next third preceding paragraph of this Section 4.10. Within 365 days after the receipt of any Net Proceeds from an Asset Sale, the Company or the Restricted Subsidiary, as the case may be, may apply such Net Proceeds, at its option:
(a) to prepay, repay, purchase, repurchase or redeem any secured Indebtedness of the Company or any Restricted Subsidiary of the Company;
(b) to acquire a controlling interest in another business or all or substantially all of the assets or operating line of another business, in each case engaged in a Permitted Business;
(c) to make capital expenditures; or
(d) to acquire other non-current assets to be used in a Permitted Business. Pending the final application of any such Net Proceeds, the Company may temporarily reduce Indebtedness under any Credit Facility or otherwise expend or invest such Net Proceeds in any manner that is not prohibited by this Indenture. Any Net Proceeds from Asset Sales described in this paragraph that are not applied or invested as provided in the first sentence of this paragraph of this Section 4.10 shall be deemed to constitute “Excess Asset Sale Proceeds.” When the aggregate amount of Excess Asset Sale Proceeds exceeds $10.0 million, the Company will be required under this Indenture to make an offer to the Holders of purchase Notes issued thereunder and the holders of any other Senior Indebtedness that is subject to requirements with respect to the application of net proceeds from asset sales that are substantially similar to those contained in this Indenture (an “Asset Sale Offer”) to purchase on a pro rata basis (with the Excess Asset Sale Proceeds prorated between the Holders of the Notes and such holders of such other Senior Indebtedness based upon outstanding aggregate principal amounts) the maximum principal amount of the Notes and such other Senior Indebtedness that may be purchased or prepaid, as applicable, out of the prorated Excess Asset Sale Proceeds), at an offer a purchase price in cash in an amount equal to 100% of the principal amount thereof of the Notes to be purchased, plus accrued and unpaid interest thereon to to, but excluding, the date of purchasepurchase (the “Asset Sale Offer Amount”). The Company shall purchase pursuant to an Asset Sale Offer from all tendering Holders on a pro rata basis and, at the Company’s option, on a pro rata basis with the Holders of any other Senior Indebtedness with similar provisions requiring the Company to offer to purchase the other Senior Indebtedness with the proceeds of Asset Sales, that principal amount (or accreted value in the case of Indebtedness issued with original issue discount) of Notes and the other Senior Indebtedness to be purchased equal to such remaining Net Cash Proceeds. The Company may satisfy its obligations under this covenant with respect to the remaining Net Cash Proceeds of an Asset Sale by making an Asset Sale Offer prior to the expiration of the relevant 365-day period. Notwithstanding the foregoing, the Company may defer an Asset Sale Offer until there is an aggregate amount of remaining Net Cash Proceeds from one or more Asset Sales equal to or in excess of U.S.$100.0 million (or the equivalent in other currencies). At that time, the entire amount of remaining Net Cash Proceeds, and not just the amount in excess of U.S.$100.0 million (or the equivalent in other currencies), will be applied as required pursuant to this Section 4.10. Pending application in accordance with this Section 4.10, Net Cash Proceeds may be applied to temporarily reduce revolving credit borrowings that can be reborrowed or Invested in Cash Equivalents. Each notice of an Asset Sale Offer shall be provided to the procedures set forth Holders within 30 days following such 365th day, with a copy to the Trustee, offering to purchase the Notes as described above. Each notice of an Asset Sale Offer shall state, among other things, the purchase date, which must be no earlier than the Asset Sale Offer Payment Date. Upon receiving notice of an Asset Sale Offer, Holders may elect to tender their Notes in this Indenturewhole or in part in integral multiples of U.S.$1,000 in exchange for cash; provided that the principal amount of such tendering Holder’s Note shall not be less than U.S.$200,000. To On the Asset Sale Offer Payment Date, the Company shall, to the extent that lawful:
(1) accept for payment all Notes or portions thereof properly tendered and not withdrawn pursuant to the Asset Sale Offer;
(2) deposit with the Paying Agent funds in an amount equal to the Asset Sale Offer Amount in respect of all Notes or portions thereof so tendered and not withdrawn; and
(3) deliver or cause to be delivered to the Trustee the Notes so accepted together with an Officer’s Certificate stating the aggregate principal amount of Notes or portions thereof being purchased by the Company. To the extent Holders of Notes and holders of other Senior Indebtedness, if any, which are the subject of an Asset Sale Offer properly tender and do not withdraw Notes or the other Senior Indebtedness tendered in an aggregate amount exceeding the amount of remaining Net Cash Proceeds, the Company shall purchase the Notes and the other Senior Indebtedness on a pro rata basis (and electing to be redeemed or repaid, based on amounts tendered) as applicable) set forth above. If only a portion of a Note is purchased pursuant to an Asset Sale Offer is less than Offer, a new Note in a principal amount equal to the Excess Asset Sale Proceedsportion thereof not purchased shall be issued, and upon receipt of an Authentication Order the Company and its Restricted Subsidiaries may use any remaining Excess Asset Sale Proceeds for general corporate purposes and any other purpose not prohibited by this Indenture. Upon completion Trustee shall authenticate in the name of the offer Holder thereof upon cancellation of the original Note (or appropriate adjustments to purchase, the amount of Excess Asset Sale Proceeds shall and beneficial interests in a Global Note will be reset at zeromade, as appropriate). The Company will shall comply with the requirements of Rule 14e-1 under the Exchange Act and any other applicable securities laws and regulations thereunder to the extent such laws and regulations are applicable in connection with the purchase of Notes pursuant to an Asset Sale Offer. To the extent that the provisions of any applicable securities laws or regulations conflict with the provisions of Section 3.09 hereof or this Section 4.10, the Company will shall comply with the applicable securities these laws and regulations and will shall not be deemed to have breached its obligations under Section 3.09 hereof or this Section 4.10 by virtue of such compliance. If it would be unlawful in any jurisdiction to make an Asset Sale Offer, the Company shall not be obligated to make such offer in such jurisdiction and shall not be deemed to have breached its obligations under this Section 4.10 Indenture by virtue doing so. Upon completion of an Asset Sale Offer, the Company’s compliance with such securities laws or regulationsamount of remaining Net Cash Proceeds will be reset at zero. Accordingly, to the extent that the aggregate amount of Notes and other Indebtedness tendered pursuant to an Asset Sale Offer is less than the aggregate amount of remaining Net Cash Proceeds, the Company may use any remaining Net Cash Proceeds in any manner not otherwise prohibited by this Indenture.
Appears in 1 contract
Samples: Indenture (QGOG Constellation S.A.)
Asset Sales. The Company will shall not, and will shall not permit any of its Restricted Subsidiaries to, consummate cause or make an Asset Sale unless:
unless (1i) the Company (or the Restricted Subsidiary, as the case may be, ) receives consideration at the time of the such Asset Sale at least equal to the Fair Market Value (measured as evidenced by a resolution of the date Board of Directors, which in the definitive agreement case of an Asset Sale with respect a Fair Market Value exceeding $5.0 million, shall be set forth in an Officer's Certificate delivered to such Asset Salethe Trustee) of the assets or Equity Interests issued or sold or otherwise disposed of; and
, (2ii) at least 75% of the consideration therefor received in by the Company or such Asset Sale Restricted Subsidiary is in the form of cash or Cash Equivalents; provided that any the amount of the following items shall be deemed to be cash and Cash Equivalents for the purposes of this clause (2):
(ax) the assumption of any liabilities (as shown on the Company’s 's or the such Restricted Subsidiary’s 's most recent balance sheet) of the Company or any Restricted Subsidiary of the Company (other than contingent liabilities and liabilities that are by their terms subordinated to the Notes issued under this Indenture or any Subsidiary GuaranteeGuarantee thereof) that are assumed by the transferee of any such assets pursuant to a customary novation -42- 50 agreement that releases the Company or the such Restricted Subsidiary from further liability;
liability and (by) any securities, notes or other obligations received by the Company or any such Restricted Subsidiary from such transferee that are immediately converted by the Company or the such Restricted Subsidiary into cash or Cash Equivalents within 180 days following their receipt (to the extent of the cash or Cash Equivalents received); and
, shall be deemed to be cash for purposes of this provision (c) any stock or assets of the kind referred to in clauses (bii) and (diii) of the next paragraph of this Section 4.10. Within 365 days after the receipt of any Net Proceeds from an Asset Sale, the Company or such Restricted Subsidiary shall apply the Restricted Subsidiary, Net Proceeds of such Asset Sale within 270 days of receipt thereof as the case may be, may apply such Net Proceeds, at its optionfollows:
(a) to prepaythe extent such Net Proceeds are received from an Asset Sale not involving the sale, repaytransfer or disposition of Collateral ("Non-Collateral Proceeds") or such proceeds are received from an Asset Sale involving the sale, purchasetransfer or disposition of Collateral that is subject to a Prior Lien ("Prior Lien Collateral Proceeds"), repurchase or redeem to satisfy all mandatory repayment obligations of any Indebtedness secured by the assets involved in such Asset Sale together with a concomitant permanent reduction in the amount of such Indebtedness (including a permanent reduction in committed amounts therefor in the case of the Company or any Restricted Subsidiary of the Company;revolving credit facility so repaid); and
(b) with respect to acquire a controlling interest in another business any Non-Collateral Proceeds or all Prior Lien Collateral Proceeds remaining after application pursuant to the preceding paragraph (a) above and any Net Proceeds received from an Asset Sale involving the sale, transfer or substantially all disposition of Collateral not subject to the assets or operating line provisions of another businessparagraph (a) above ("Collateral Proceeds," and, in each case engaged in a Permitted Business;
(c) to make capital expenditures; or
(d) to acquire other nontogether with such remaining Non-current assets to be used in a Permitted Business. Pending the final application of any such Net Collateral Proceeds and Prior Lien Collateral Proceeds, the Company may temporarily reduce Indebtedness under any Credit Facility or otherwise expend or invest such Net "Available Proceeds in any manner that is not prohibited by this Indenture. Any Net Proceeds from Asset Sales described in this paragraph that are not applied or invested as provided in the first sentence of this paragraph of this Section 4.10 shall be deemed to constitute “Excess Asset Sale Proceeds.” When the aggregate amount of Excess Asset Sale Proceeds exceeds $10.0 millionAmount"), the Company will be required under this Indenture to shall make an offer to purchase (the Holders of Notes issued thereunder and the holders of any other Senior Indebtedness that is subject to requirements with respect to the application of net proceeds from asset sales that are substantially similar to those contained in this Indenture (an “"Asset Sale Offer”") from all Holders up to purchase on a pro rata basis (with the Excess Asset Sale Proceeds prorated between the Holders of the Notes and such holders of such other Senior Indebtedness based upon outstanding aggregate principal amounts) the maximum principal amount (expressed as an integral multiple of $1,000) of Notes equal to the Notes and such other Senior Indebtedness that may be purchased or prepaid, as applicable, out of the prorated Excess Asset Sale Proceeds, Available Proceeds Amount at an offer a purchase price in cash in an amount equal to 100% of the principal amount thereof plus accrued and unpaid interest thereon thereon, if any, and Liquidated Damages, if any, to the date of purchase, fixed for such purchase in accordance with the procedures set forth in herein; provided, that the Company will not be required to apply pursuant to this Indenture. To paragraph (b) Net Proceeds received from any Asset Sale if, and only to the extent that, such Net Proceeds are applied (or, in the case of clauses (i) or (ii) below, the Company (or such Restricted Subsidiary) enters into a binding, definitive agreement to apply) within 270 days of such Asset Sale the Net Proceeds from such Asset Sale (i) to the acquisition of a controlling interest in any one or more businesses, to the making of a capital expenditure (including the construction or improvement of properties and capital assets) or the acquisition of long-term assets, in each case, that is engaged in or that is used or useful in a Principal Business and/or (ii) to an investment in properties or assets that replace the aggregate principal amount properties and assets that are the subject of Notes such Asset Sale (collectively, clause (i) and other (ii) of this paragraph, a "Permitted Related Acquisition") and/or (iii) to permanently reduce Obligations under the Senior Indebtedness tendered Credit Facility (and electing to be redeemed correspondingly reduce commitments with respect thereto) and, if the Net Proceeds so invested in such Permitted Related Acquisition included Collateral Proceeds or repaid, as applicable) pursuant to an Asset Sale Offer is less than the Excess Asset Sale Prior Lien Collateral Proceeds, the Company property and its Restricted Subsidiaries may use assets constituting such Permitted Related Acquisition and any remaining Excess non-cash consideration received as a result of such Asset Sale Proceeds for general corporate purposes and any other purpose not prohibited by this Indenture. Upon completion of the offer to purchase, the amount of Excess Asset Sale Proceeds shall 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 are made subject to the extent such laws and regulations are applicable Lien securing the Notes in connection with an Asset Sale Offer. To the extent that the provisions of any securities laws or regulations conflict with the provisions of this manner contemplated in 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 this Section 4.10 by virtue of the Company’s compliance with such securities laws or regulations.11.05
Appears in 1 contract
Samples: Indenture (Metal Management Inc)
Asset Sales. (a) The Company will shall not, and will shall not permit any of its Restricted Subsidiaries to, consummate an Asset Sale unless:
(1i) the Company (or the Restricted Subsidiary, as the case may be, ) receives consideration at the time of the such Asset Sale at least equal to the Fair Market Value (measured as determined by the Board of the date of the definitive agreement with respect to such Asset SaleDirectors) of the assets or Equity Interests issued or sold or otherwise disposed of; provided that this clause (i) shall not apply to an Asset Sale resulting solely from a foreclosure or sale by a third party upon assets or property subject to a Lien not prohibited by this Indenture;
(ii) where such Fair Market Value exceeds $25.0 million, the Company's Board of Directors' determination of such Fair Market Value is set forth in an Officers' Certificate delivered to the Trustee; and
(2iii) at least 75% of the consideration therefor received in by the Company or such Asset Sale Restricted Subsidiary is in the form of cash Cash Equivalents or Cash Equivalents; provided that any Replacement Assets or a combination thereof. For purposes of this provision, each of the following items shall be deemed to be cash and Cash Equivalents for the purposes of this clause (2):Equivalents:
(aA) the assumption of any liabilities (as shown on the Company’s 's or the such Restricted Subsidiary’s 's most recent balance sheet, or would be shown on the Company's or such Restricted Subsidiary's balance sheet on the date of such Asset Sale) of the Company or any Restricted Subsidiary of the Company (other than liabilities contingent liabilities, Indebtedness that are is by their its terms subordinated to the Notes issued under this Indenture or any Subsidiary GuaranteeNote Guarantee and liabilities to the extent owed to the Company or any Affiliate of the Company) that are assumed by the transferee of any such assets pursuant to a customary novation written agreement that releases the Company or the such Restricted Subsidiary from further liability;liability therefor; and
(bB) any securities, notes or other obligations received by the Company or any such Restricted Subsidiary from such transferee that are converted (including by way of any Monetization Transaction) by the Company or the such Restricted Subsidiary into cash or Cash Equivalents within 180 days following their receipt (to the extent of the cash or Cash Equivalents received); andreceived in that conversion) within 120 days of such Asset Sale.
(c) any stock or assets of the kind referred to in clauses (b) and (d) of the next paragraph of this Section 4.10. Within 365 360 days after the receipt of any Net Proceeds from an Asset Sale, the Company or the Restricted Subsidiary, as the case may be, may apply such Net Proceeds, Proceeds at its option:
(ai) to prepayrepay Senior Debt and, repayif the Senior Debt repaid is revolving credit Indebtedness, purchase, repurchase to correspondingly reduce commitments with respect thereto;
(ii) to acquire all or redeem any secured Indebtedness substantially all of the Company assets of, or any a majority of the Voting Stock of, another Permitted Business (including by means of a merger, consolidation or other business combination permitted under this Indenture) to be held, commencing on the date of such acquisition, as or in a Restricted Subsidiary of the Company;
(biii) to acquire a controlling interest in another business pay for or all or substantially all of the assets or operating line of another business, in each case engaged in a Permitted Business;
(c) to make capital expenditurespurchase Replacement Assets; or
(div) to acquire other non-current assets to be used in a Permitted Businessany combination of the foregoing. Pending the final application of any such Net Proceeds, the Company may temporarily reduce Indebtedness under any Credit Facility revolving credit borrowings or otherwise expend or invest such Net Proceeds in any manner that is not prohibited by this Indenture. .
(c) Any Net Proceeds from Asset Sales described in this paragraph that are not applied or invested as provided in the first sentence of this paragraph of this Section 4.10 4.10(b) above shall be deemed to constitute “Excess Asset Sale Proceeds"EXCESS PROCEEDS.” When " Within 30 days after the aggregate amount of Excess Asset Sale Proceeds exceeds $10.0 25.0 million, the Company will be required under this Indenture to shall make an Asset Sale offer (an "ASSET SALE OFFER") to the all Holders of Notes issued thereunder and the all holders of any other Senior Indebtedness that is subject pari passu with the Notes or any Note Guarantee containing provisions similar to requirements those set forth by this Indenture with respect to the application of net proceeds from asset sales that are substantially similar to those contained in this Indenture (an “Asset Sale Offer”) offers to purchase on a pro rata basis (with the Excess Asset Sale Proceeds prorated between proceeds of sales of assets, to purchase the Holders maximum principal amount of the Notes and such holders other pari passu Indebtedness that may be purchased out of such other Senior Indebtedness based upon outstanding aggregate principal amounts) the maximum Excess Proceeds. The offer price in any Asset Sale Offer shall be equal to 100% of the principal amount of the Notes and such other Senior pari passu Indebtedness that may be purchased or prepaid, as applicable, out of the prorated Excess Asset Sale 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, and shall be payable in accordance with cash. If any Excess Proceeds remain after consummation of an Asset Sale Offer, the procedures set forth in Company may use such Excess Proceeds for any purpose not otherwise prohibited by this Indenture. To the extent that If the aggregate principal amount of Notes and such other Senior pari passu Indebtedness tendered (and electing to be redeemed or repaid, as applicable) pursuant to an into such Asset Sale Offer is less than exceeds the amount of Excess Asset Sale Proceeds, the Company Notes and its Restricted Subsidiaries may use any remaining Excess Asset Sale Proceeds for general corporate purposes such other pari passu Indebtedness shall be purchased on a pro rata basis based on the principal amount of Notes and any such other purpose not prohibited by this Indenturepari passu Indebtedness tendered. Upon completion of the offer to purchaseeach Asset Sale Offer, the amount of Excess Asset Sale Proceeds shall 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 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, 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 the Company’s compliance with such securities laws or regulations.
Appears in 1 contract
Asset Sales. The Company will shall not, and will shall not permit any of its Restricted Subsidiaries to, consummate an Asset Sale unless:
unless (1i) the Company (or the Restricted Subsidiary, as the case may be, ) receives consideration at the time of the such Asset Sale at least equal to the Fair Market Value fair market value (measured as evidenced by a resolution of the date Board of Directors set forth in an Officers' Certificate delivered to the definitive agreement with respect to such Trustee in the case of any Asset SaleSale for which the Company or any of its Restricted Subsidiaries receives consideration in excess of $15,000,000) of the assets or Equity Interests issued or sold or otherwise disposed of; and
of and (2ii) at least 7580% of the consideration therefor received in by the Company or such Asset Sale Restricted Subsidiary is in the form of cash or Cash Equivalents; provided that any the amount of the following items shall be deemed to be cash and Cash Equivalents for the purposes of this clause (2):
(ax) the assumption of any liabilities (as shown on the Company’s 's or the such Restricted Subsidiary’s 's most recent balance sheet) ), of the Company or any Restricted Subsidiary of the Company (other than contingent liabilities and liabilities that are by their terms subordinated to the Notes issued under this Indenture or any Subsidiary Guaranteeguarantee thereof) that are assumed by the transferee of any such assets pursuant to a customary novation or other agreement that releases the Company or the such Restricted Subsidiary from further liability;
liability and (by) any securities, notes or other obligations received by the Company or any such Restricted Subsidiary from such transferee that are converted by the Company or the such Restricted Subsidiary within 90 days following the closing of the Asset Sale into cash or Cash Equivalents within 180 days following their receipt (to the extent of the cash or Cash Equivalents received); and
(c) any stock or assets of the kind referred , shall be deemed to in clauses (b) and (d) of the next paragraph be cash for purposes of this Section 4.10provision. Within 365 360 days after of the receipt of any Net Proceeds from an Asset Sale, the Company or the and its Restricted Subsidiary, as the case may be, Subsidiaries may apply such Net Proceeds, at its their option:
, (a) to prepay, repay, purchase, repurchase or redeem any repay secured Indebtedness (and, in the case of the Company any such Indebtedness that was borrowed under a revolving credit line, to correspondingly reduce commitments with respect thereto), or any Restricted Subsidiary of the Company;
(b) to acquire the acquisition of a controlling interest in another business business, the making of a capital 54 49 expenditure or all or substantially all the acquisition of the assets or operating line of another businessother long-term assets, in each case case, in the same or a related or complementary line of business as the Company or any of its Restricted Subsidiaries was engaged in a Permitted Business;
on the date of this Indenture (c) to make capital expenditures; or
(d) to acquire other non-current assets to be used as determined in a Permitted Businessgood faith by the Company). Pending the final application of any such Net Proceeds, the Company may temporarily reduce Indebtedness the revolving credit lines under any the New Credit Facility (without any corresponding commitment reduction) or otherwise expend or invest such Net Proceeds in any manner that is not prohibited by this Indenture. Any Net Proceeds from Asset Sales described in this paragraph that are not applied or invested as provided in the first sentence of this paragraph of this Section 4.10 shall be deemed to constitute “"Excess Proceeds." Not later than 30 days after any date (an "Asset Sale Proceeds.” When Offer Trigger Date") that the aggregate amount of Excess Asset Sale Proceeds exceeds $10.0 million10,000,000, the Company will be required under this Indenture shall mail to make an offer to the Holders each holder of Notes issued thereunder and the holders of any other Senior Indebtedness at such holder's registered address a notice stating: (i) that is subject to requirements with respect to the application of net proceeds from asset sales that are substantially similar to those contained in this Indenture (an “Asset Sale Offer”) Offer Trigger Date has occurred and that the Company is offering to purchase on a pro rata basis (with the Excess Asset Sale Proceeds prorated between the Holders of the Notes and such holders of such other Senior Indebtedness based upon outstanding aggregate principal amounts) the maximum principal amount of the Notes and such other Senior Indebtedness that may be purchased or prepaid, as applicable, out of the prorated Excess Asset Sale Proceeds, at an offer price in cash in an amount equal to 100% of the principal amount thereof thereof, plus accrued and unpaid interest and Liquidated Damages, if any, thereon to the date of purchasepurchase (the "Asset Sale Offer Purchase Date"), which shall be a business day, specified in accordance 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 and unpaid interest 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 procedures set forth 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 this Indenturepart 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 principal amount of Notes and other Senior Indebtedness tendered (and electing to be redeemed or repaid, as applicable) pursuant to an Asset Sale Offer is less than the Excess Asset Sale Proceeds, the Company and its Restricted Subsidiaries may use any remaining Excess Asset Sale Proceeds for general corporate purposes and any other purpose not prohibited purposes. If the Aggregate principal amount of Notes surrendered by this IndentureHolders thereof exceeds the amount of Excess Proceeds, the Trustee shall select the Notes to be purchased on a pro rata basis. Upon completion of the offer to purchasesuch Asset Sale Offer, the amount of Excess Asset Sale Proceeds shall be reset at zero. The Company will shall comply with the applicable tender offer rules, including the requirements of Rule 14e-1 under the Exchange Act Act, and any all other applicable securities laws and regulations thereunder to the extent such laws and regulations are applicable in connection with an any Asset Sale Offer. To the extent that the provisions of any applicable securities laws or regulations conflict with the provisions of this Section 4.10terms hereof, the Company will shall comply with the applicable securities such laws and or regulations and will shall not be deemed to have breached its obligations under this Section 4.10 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, 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, and no additional interest shall be payable to Holders who tender Notes pursuant to the Company’s compliance with such securities laws or regulationsAsset Sale Offer.
Appears in 1 contract
Samples: Indenture (Medaphis Corp)
Asset Sales. The Company will shall not, and will shall not permit any of its Restricted Subsidiaries to, consummate engage in an Asset Sale unless:
unless (1i) the Company or the such Restricted Subsidiary, as the case may be, receives consideration at the time of the such Asset Sale at least equal to the Fair Market Value fair market value (measured as evidenced by a resolution of the date Board of Directors set forth in an Officers' Certificate delivered to the definitive agreement with respect to such Asset SaleTrustee) of the assets or Equity Interests issued or sold or otherwise disposed of; and
of and (2ii) at least 7585% of the consideration therefor received in by the Company or such Asset Sale Restricted Subsidiary is in the form of cash or Cash Equivalentscash; provided that any the amount of the following items shall be deemed to be cash and Cash Equivalents for the purposes of this clause (2):
(a) the assumption of any liabilities (as shown on the Company’s 's or the such Restricted Subsidiary’s 's most recent balance sheet) ), of the Company or any Restricted Subsidiary of the Company (other than contingent liabilities and liabilities that are by their terms subordinated to Notes issued under this Indenture or any Subsidiary Guaranteethe Senior Subordinated Notes) that are assumed by the transferee of any such assets pursuant to a customary novation agreement that releases the Company or the such Restricted Subsidiary from further liability;
liability and (b) any securities, notes or other obligations received by the Company or any such Restricted Subsidiary from such transferee that are immediately converted by the Company or the such Restricted Subsidiary into cash or Cash Equivalents within 180 days following their receipt (to the extent of the cash or Cash Equivalents received); and
(c) any stock or assets of the kind referred shall be deemed to in clauses (b) and (d) of the next paragraph be cash for purposes of this Section 4.10provision. Within 365 270 days after the receipt of any Net Proceeds from an Asset Sale, the Company or the such Restricted Subsidiary, as the case may be, Subsidiary may apply such Net Proceeds, at its option:
Proceeds (ai) to prepay, repay, purchase, repurchase or redeem any secured Indebtedness permanently reduce Senior Debt of the Company or any such Restricted Subsidiary of the Company;
(b) and to acquire a controlling interest in another business correspondingly reduce commitments with respect thereto), or all or substantially all of the assets or operating line of another business, in each case engaged in a Permitted Business;
(cii) to make capital expenditures; expenditures or acquire long-term assets in the same line of business as the Company was engaged in immediately prior to such Asset Sale or
(d) to acquire other non-current assets to be used , in the case of a Permitted Businesssale of accounts receivable in connection with any accounts receivable financing, for working capital purposes. Pending the final application of any such Net Proceeds, the Company may temporarily reduce Indebtedness under any Credit Facility Senior Debt or otherwise expend or invest such Net Proceeds in any manner that is not prohibited by this Indenture. Any Net Proceeds from Asset Sales described in this paragraph that are not applied or invested as provided in the first sentence of this paragraph of this Section 4.10 shall will be deemed to constitute “"Excess Asset Sale Proceeds.” " When the aggregate amount of Excess Asset Sale Proceeds exceeds $10.0 million5.0 million (an "Excess Proceeds Offer Triggering Event"), the Company will be required under this Indenture to shall make an offer to the all Holders of Senior Subordinated Notes issued thereunder and the holders of any other Senior Indebtedness that is subject to requirements with respect to the application of net proceeds from asset sales that are substantially similar to those contained in this Indenture (an “"Asset Sale Offer”") to purchase on a pro rata basis (with the Excess Asset Sale Proceeds prorated between the Holders of the Notes and such holders of such other Senior Indebtedness based upon outstanding aggregate principal amounts) the maximum principal amount of the Senior Subordinated Notes and such other Senior Indebtedness that may be purchased or prepaid, as applicable, out of the prorated Excess Asset Sale Proceeds, at an offer price in cash in an amount equal to 100% of the principal amount thereof plus accrued and unpaid interest and Liquidated Damages, if any, thereon to the date of purchase, in accordance with the procedures set forth in Section 3.09 hereof and this IndentureSection 4.10. To the extent that the aggregate principal amount of Senior Subordinated Notes and other Senior Indebtedness tendered (and electing to be redeemed or repaid, as applicable) pursuant to an Asset Sale Offer is less than the Excess Asset Sale Proceeds, the Company and its Restricted Subsidiaries may use any remaining Excess Asset Sale Proceeds for general corporate purposes and any other purpose not prohibited by (subject to the restrictions of this Indenture). If the aggregate principal amount of Senior Subordinated Notes surrendered by Holders thereof exceeds the amount of Excess Proceeds, the Trustee shall select the Senior Subordinated Notes to be purchased on a pro rata basis. Upon completion of the such offer to purchase, the amount of Excess Asset Sale Proceeds shall be reset at zero. The Company will comply with the requirements occurrence of Rule 14e-1 an Excess Proceeds Offer Triggering Event could result in a default under the Exchange Act and any other securities laws and regulations thereunder to the extent such laws and regulations are applicable in connection with 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, 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 Senior Debt of the Company’s compliance with such securities laws or regulations.
Appears in 1 contract
Samples: Indenture (Fonda Group Inc)
Asset Sales. (a) The Company will shall not, and will shall not permit any of its Restricted Subsidiaries to, consummate an Asset Sale unless:
(1i) the Company (or the Restricted Subsidiary, as the case may be, ) receives consideration at the time of the such Asset Sale at least equal to the Fair Market Value (measured as of the date of the definitive agreement with respect to such Asset Sale) fair market value of the assets or Equity Interests issued or sold or otherwise disposed of; and;
(2ii) such fair market value is determined in accordance with the provisions of the definition of fair market value;
(iii) at least 75% of the consideration therefor received in by the Company or such Asset Sale Restricted Subsidiary is in the form of cash cash, Cash Equivalents or Replacement Assets or a combination of cash, Cash EquivalentsEquivalents or Replacement Assets; provided that any that, for purposes of this Section 4.10(a)(iii), each of the following items shall be deemed to be cash and Cash Equivalents for the purposes of this clause (2):cash:
(aA) the assumption of any liabilities (as shown on the Company’s or the such Restricted Subsidiary’s most recent balance sheet) of the Company or any Restricted Subsidiary of the Company (other than contingent liabilities, Indebtedness that is by its terms contractually subordinated in right of payment 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 by their terms subordinated to Notes issued under this Indenture or any Subsidiary Guarantee) assumed by the transferee of any such assets or Equity Interests pursuant to a customary novation an agreement that releases the Company or such Restricted Subsidiary, as the Restricted Subsidiary case may be, from further liability;; and
(bB) any securities, notes or other obligations received by the Company or any such Restricted Subsidiary Subsidiary, as the case may be, from such transferee that are converted by the Company or the such Restricted Subsidiary into cash or Cash Equivalents within 180 days following their receipt (to the extent of cash or the Cash Equivalents receivedreceived in that conversion); and
(civ) any stock in the case of an Asset Sale that constitutes a Sale of Notes Collateral or assets a Sale of a Guarantor, the Company (or the applicable Guarantor, as the case may be) deposits 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 kind referred Uniform Commercial Code) the Collateral Trustee or its agent to secure all Secured Obligations pursuant to arrangements reasonably satisfactory to the Collateral Trustee; provided that no such deposit will be required except to the extent the aggregate Net Proceeds from all Sales of Notes Collateral and Sales of a Guarantor that are not held in clauses a Collateral Proceeds Account and have not previously been applied in accordance with Section 4.10(c) exceeds $5.0 million.
(b) and (d) of the next paragraph of this Section 4.10. Within 365 days after the receipt of any Net Proceeds from an Asset Sale, other than a Sale of Notes Collateral or a Sale of a Guarantor, the Company or the such Restricted Subsidiary, as the case may be, Subsidiary may apply such Net Proceeds, Proceeds at its optionoption and to the extent it so elects:
(ai) to prepay, repay, purchase, repurchase or redeem Priority Lien Obligations (including Obligations under the Notes) or ABL Debt Obligations;
(ii) to repay any Indebtedness secured by a Permitted Prior Lien;
(iii) to repay Indebtedness and other obligations of a Restricted Subsidiary that is not a Guarantor, other than Indebtedness owed to the Company or another Restricted Subsidiary;
(iv) to repay other Indebtedness of either of the Issuers or any Guarantor (other than any Disqualified Stock or any Indebtedness that is contractually subordinated in right of payment to the Notes), other than Indebtedness owed to the Company or a Restricted Subsidiary of the Company; provided that the Issuers shall equally and ratably redeem or repurchase the Notes in accordance with Section 3.07, through open market purchases (to the extent such purchases are at or above 100% of the principal amount thereof) or by making an offer (in accordance with the procedures set forth below for an Asset Sale Offer) to all Holders to purchase the Notes at 100% of the principal amount thereof, plus the amount of accrued but unpaid interest (if any) on the amount of Notes that would otherwise be prepaid;
(v) 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;
(bvi) to acquire purchase Replacement Assets or make a controlling interest capital expenditure in another business or all that is used or substantially all of the assets or operating line of another business, in each case engaged useful in a Permitted Business;
(c) to make capital expenditures; or
(dvii) any combination of the foregoing; provided that the Company will be deemed to have complied with clauses (v) and (vi) 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 has entered into and not abandoned or rejected a binding agreement to acquire other non-current the assets to be used in or Capital Stock of a Permitted Business, purchase Replacement Assets or make a capital expenditure in compliance with clauses (v) and (vi) of this Section 4.10(b), and that acquisition, purchase or capital expenditure is thereafter completed within 90 days after the end of such 365-day period. Pending the final application of any such Net Proceeds, the Company may temporarily reduce Indebtedness under any Credit Facility revolving credit borrowings or otherwise expend or invest such Net Proceeds in any manner that is not prohibited by this Indenture. .
(c) Within 365 days after the receipt of any Net Proceeds from an Asset Sale that constitutes a Sale of Notes Collateral or a Sale of a Guarantor, the Company (or the applicable Restricted Subsidiary, as the case may be) may apply an amount equal to such Net Proceeds:
(i) to purchase other assets that would constitute Notes Collateral;
(ii) to purchase Capital Stock of another Permitted Business if, after giving effect to such purchase, the Permitted Business becomes a Guarantor or is merged into or consolidated with either of the Issuers or any Guarantor;
(iii) to make a capital expenditure with respect to assets that constitute Notes Collateral;
(iv) to repay Indebtedness secured by a Permitted Prior Lien on any Notes Collateral that was sold in such Asset Sale; or
(v) any combination of the foregoing; provided that the Company will be deemed to have complied with clauses (i), (ii) and (iii) of this Section 4.10(c) if, and to the extent that, within 365 days after the Asset Sale that generated the Net Proceeds, the Company has entered into and not abandoned or rejected a binding agreement to purchase assets that constitute Notes Collateral or Capital Stock of another Permitted Business or to make a capital expenditure with respect to assets that constitute Notes Collateral in compliance with clauses (i), (ii) and (iii) of this Section 4.10(c), and that purchase or capital expenditure is thereafter completed within 90 days after the end of such 365-day period.
(d) Any Net Proceeds from Asset Sales described in this paragraph that are not applied or invested as provided in the first sentence of this paragraph of this Section 4.10 4.10(b) or Section 4.10(c) shall be deemed to constitute “Excess Asset Sale Proceeds.” When Within 10 days after the aggregate amount of Excess Asset Sale Proceeds (including any Excess Proceeds held in the Collateral Proceeds Account) exceeds $10.0 million, the Company will be required under this Indenture to Issuers shall make an offer to the Holders of Notes issued thereunder and the holders of any other Senior Indebtedness that is subject to requirements with respect to the application of net proceeds from asset sales that are substantially similar to those contained in this Indenture (an “Asset Sale Offer”) 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 on a pro rata basis (with the proceeds of sales of assets, to purchase the maximum principal amount of Notes and such other Priority Lien Debt that may be purchased out of the Excess Asset Sale Proceeds prorated between the Holders of Proceeds. The offer price for the Notes and such holders any other Priority Lien Debt in any Asset Sale Offer will be equal to 100% of such other Senior Indebtedness based upon outstanding aggregate principal amounts) the maximum principal amount of the Notes and such other Senior Indebtedness that may be purchased or prepaidPriority Lien Debt purchased, as applicable, out of the prorated Excess Asset Sale Proceeds, at an offer price in cash in an amount equal to 100% of the principal amount thereof plus accrued and unpaid interest thereon and Special Interest (if any) on the Notes and any other Priority Lien Debt to the date of purchase, and will be payable in accordance with cash. If any Excess Proceeds remain after consummation of an Asset Sale Offer, the procedures set forth in Issuers may use such Excess Proceeds for any purpose not otherwise prohibited by this Indenture. To the extent that If the aggregate principal amount of Notes and such other Senior Indebtedness Priority Lien Debt tendered (and electing to be redeemed or repaid, as applicable) pursuant to an into such Asset Sale Offer is less than exceeds the amount of Excess Asset Sale ProceedsProceeds (including any Excess Proceeds held in the Collateral Proceeds Account), the Company Notes and its Restricted Subsidiaries may use any remaining Excess Asset Sale Proceeds for general corporate purposes such other Priority Lien Debt shall be purchased on a pro rata basis based on the principal amount of Notes and any such other purpose not prohibited by this IndenturePriority Lien Debt tendered. Upon completion of the offer to purchaseeach Asset Sale Offer, the amount of Excess Asset Sale Proceeds shall be reset at zero. .
(e) The Company Issuers will comply with the requirements of Rule 14e-1 under the Exchange Act and any other securities laws and regulations thereunder to the extent such 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 Section 4.10Indenture, the Company Issuers will comply with the applicable securities laws and regulations and will not be deemed to have breached its their obligations under the Asset Sale provisions of this Section 4.10 Indenture by virtue of the Company’s compliance with such securities laws or regulationscompliance.
Appears in 1 contract
Samples: Indenture (Solo Cup CO)
Asset Sales. (a) The Company will Issuer shall not, and will shall not permit any of its the Restricted Subsidiaries to, consummate cause or make an Asset Sale Sale, unless:
(1) the Company Issuer or any of the Restricted SubsidiarySubsidiaries, as the case may be, receives consideration at the time of the such Asset Sale at least equal to the Fair Market Value (measured as determined in good faith by senior management or the Board of Directors of the date of the definitive agreement with respect to such Asset SaleIssuer) of the assets or Equity Interests issued or sold or otherwise disposed of; and;
(2) at least 75% of the consideration therefor received in by the Issuer or such Asset Sale Restricted Subsidiary, as the case may be, is in the form of cash or Cash Equivalents, calculated on a cumulative basis from the Issue Date; and
(3) to the extent that any consideration received by the Issuer or any Restricted Subsidiary in such Asset Sale constitutes securities or other assets that are of a type or class that constitutes Collateral, such securities or other assets are added to the Collateral securing the Notes in the manner and to the extent required by this Indenture or any of the Collateral Documents with the Lien on such Collateral securing the Notes being of the same priority as the other Liens on the Collateral securing the Notes; provided that any of the following items shall be deemed to be cash and Cash Equivalents for the purposes of this clause (2):amount of:
(aA) the assumption of any liabilities (as shown on the CompanyIssuer’s or the such Restricted Subsidiary’s most recent balance sheetsheet or in the notes thereto) of the Company Issuer or any Restricted Subsidiary of the Company (other than liabilities that are by their terms subordinated to the Notes issued under this Indenture or any Subsidiary Note Guarantee) (x) that are assumed by the transferee of any such assets pursuant to a customary novation agreement that releases and from which the Company Issuer and all of its Restricted Subsidiaries have been validly released by all creditors in writing or (y) in respect of which neither the Issuer nor any Restricted Subsidiary from further liability;following such Asset Sale has any obligation,
(bB) any securities, notes or other obligations or other securities or assets received by the Company Issuer or any such Restricted Subsidiary from such transferee that are converted by the Company Issuer or the such Restricted Subsidiary into cash or Cash Equivalents within 180 days following their of the receipt thereof (to the extent of the cash or Cash Equivalents received); , and
(cC) any stock Designated Non-cash Consideration received by the Issuer or assets any of the kind referred Restricted Subsidiaries in such Asset Sale having an aggregate Fair Market Value (as determined in good faith by senior management or the Board of Directors of the Issuer), taken together with all other Designated Non-cash Consideration received pursuant to this clause (C) that is at that time outstanding, not to exceed the greater of (x) 2.50% of Total Assets and (y) $175.0 million at the time of the receipt of such Designated Non-cash Consideration (with the Fair Market Value of each item of Designated Non-cash Consideration being measured at the time received and without giving effect to subsequent changes in clauses value), shall be deemed to be Cash Equivalents for purposes of this Section 4.10(a).
(b) and (d) of the next paragraph of this Section 4.10. Within 365 450 days after the Issuer’s or any Restricted Subsidiary’s receipt of any the Net Proceeds from an of any Asset Sale, the Company Issuer or the such Restricted Subsidiary, as the case may be, Subsidiary may apply the Net Proceeds from such Net ProceedsAsset Sale, at its option:
(1) to the extent such Net Proceeds are from an Asset Sale of Collateral, to repay (other than obligations in respect of a Permitted Securitization Financing) (a) First Lien Priority Indebtedness, including First Lien Priority Indebtedness under the Credit Agreement (and, if the Indebtedness repaid is revolving credit Indebtedness, to prepaycorrespondingly reduce commitments with respect thereto), repay, purchase, repurchase or redeem any secured Indebtedness of the Company or any Restricted Subsidiary of the Company;
(b) [reserved], or (c) Second Lien Priority Indebtedness, including the Notes, (and, if the Indebtedness repaid is revolving credit Indebtedness, to acquire a controlling interest in another business correspondingly reduce commitments with respect thereto) (provided that if the Issuer or all any Note Guarantor shall so reduce Obligations under Second Lien Priority Indebtedness other than the Notes, the Issuer will equally and ratably reduce Obligations under the Notes as provided under Section 3.07, through open market purchases (provided that such purchases are at or substantially all above 100% of the principal amount thereof) or by making an offer (in accordance with the procedures set forth below for an Asset Sale Offer) to all holders of Notes to purchase at a purchase price equal to 100% of the principal amount thereof, plus accrued and unpaid interest, the pro rata principal amount of Notes), in each case, other than Indebtedness owed to the Issuers or an Affiliate of the Issuers,
(2) to the extent such Net Proceeds are from an Asset Sale of assets or operating line property that do not constitute Collateral, to repay (other than obligations in respect of another businessa Permitted Securitization Financing) (a) First Lien Priority Indebtedness, including First Lien Priority Indebtedness under the Credit Agreement (and, if the Indebtedness repaid is revolving credit Indebtedness, to correspondingly reduce commitments with respect thereto), (b) Indebtedness of a Non-Guarantor Subsidiary, (c) Second Lien Priority Indebtedness, including the Notes (and, if the Indebtedness repaid is revolving credit Indebtedness, to correspondingly reduce commitments with respect thereto) (provided that if the Issuers or any Note Guarantor shall so reduce Obligations under Second Lien Priority Indebtedness other than the Notes, the Issuers will equally and ratably reduce Obligations under the Notes as provided under Section 3.07, through open market purchases (provided that such purchases are at or above 100% of the principal amount thereof) or by making an offer (in accordance with the procedures set forth below for an Asset Sale Offer) to all Holders of Notes to purchase at a purchase price equal to 100% of the principal amount thereof, plus accrued and unpaid interest, the pro rata principal amount of Notes), (d) other Senior Pari Passu Indebtedness (provided that if the Issuer or any Note Guarantor shall so reduce Obligations under such other Senior Pari Passu Indebtedness, the Issuer will equally and ratably reduce Obligations under the Notes as provided in Section 3.07 through open market purchases (provided that such purchases are at or above 100% of the principal amount thereof) or by making an offer (in accordance with the procedures set forth below for an Asset Sale Offer) to all Holders of Notes to purchase at a purchase price equal to 100% of the principal amount thereof, plus accrued and unpaid interest, the pro rata principal amount of the Notes), or (e) other Indebtedness secured by a Lien on such assets, in each case, other than Indebtedness owed to the Issuers or an Affiliate of the Issuers,
(3) to make an investment in any one or more businesses (provided that if such investment is in the form of the acquisition of Capital Stock of a Person, such acquisition results in such Person becoming a Restricted Subsidiary), assets, property or capital expenditures, in each case engaged (a) used or useful in a Permitted Business;
Similar Business or (cb) that replace the properties and assets that are the subject of such Asset Sale; provided that to make capital expenditures; the extent that the assets disposed of in such Asset Sale were Collateral, such Capital Stock, assets or properties are pledged as Collateral under this Indenture and the Collateral Documents as required thereby with the Lien on such Collateral securing the Notes being of the same priority with respect to the Notes as the Lien on the assets disposed of in the Asset Sale, or
(d4) any combination of the foregoing. In the case of clause (3) of this Section 4.10(b), a binding commitment shall be treated as a permitted application of the Net Proceeds from the date of such commitment; provided that in the event such binding commitment is later canceled or terminated for any reason before such Net Proceeds are so applied, the Issuer or such Restricted Subsidiary may satisfy its obligation as to acquire other non-current assets any Net Proceeds by entering into another binding commitment within nine months of such cancellation or termination of the prior binding commitment; provided, further, that the Issuer or such Restricted Subsidiary may only enter into such a commitment under the foregoing provision one time with respect to be used in a Permitted Businesseach Asset Sale. Pending the final application of any such Net Proceeds, the Company Issuer or such Restricted Subsidiary may temporarily reduce Indebtedness under any Credit Facility a revolving credit facility, if any, or otherwise expend or invest such Net Proceeds in any manner that is not otherwise prohibited by this Indenture. Any Subject to the requirements of the Intercreditor Agreement, any Net Proceeds from any Asset Sales described in this paragraph Sale that are not applied or invested as provided and within the time period set forth in the first sentence of this paragraph Section 4.10(b) (it being understood that any portion of such Net Proceeds used to make an offer to purchase Notes, as described in clauses (1) and (2) of this Section 4.10 4.10(b), shall be deemed to have been invested within the meaning of the prior sentence whether or not such offer is accepted) will be deemed to constitute “Excess Asset Sale Proceeds.” When the aggregate amount of Excess Asset Sale Proceeds exceeds $10.0 30.0 million, the Company will be required under this Indenture to Issuers shall make an offer to the all Holders of Notes issued thereunder and (and, at the option of the Issuers, to holders of any Second Lien Priority Indebtedness or, in the case of an Asset Sale of assets that are not Collateral, to holders of other Senior Indebtedness that is subject to requirements with respect to the application of net proceeds from asset sales that are substantially similar to those contained in this Indenture Pari Passu Indebtedness) (an “Asset Sale Offer”) to purchase on a pro rata basis (with the Excess Asset Sale Proceeds prorated between the Holders of the Notes and such holders of such other Senior Indebtedness based upon outstanding aggregate principal amounts) the maximum principal amount of the Notes (and such other Second Lien Priority Indebtedness or Senior Indebtedness Pari Passu Indebtedness, as applicable), that is at least $2,000 and an integral multiple of $1.00 that may be purchased or prepaid, as applicable, out of the prorated Excess Asset Sale Proceeds, Proceeds at an offer price in cash in an amount equal to 100% of the principal amount thereof (or, in the event such Second Lien Priority Indebtedness or Senior Pari Passu Indebtedness, as applicable, was issued with significant original issue discount, 100% of the accreted value thereof), plus accrued and unpaid interest thereon (or, in respect of such Second Lien Priority Indebtedness or Senior Pari Passu Indebtedness, as applicable, such lesser price, if any, as may be provided for by the terms of such Indebtedness), to the date fixed for the closing of purchasesuch offer, in accordance with the procedures set forth in this Indenture or the agreements governing the Second Lien Priority Indebtedness or Senior Pari Passu Indebtedness, as applicable. The Issuers shall commence an Asset Sale Offer with respect to Excess Proceeds within ten Business Days after the date that Excess Proceeds exceeds $30.0 million by mailing or electronically transmitting the notice required pursuant to the terms of this Indenture, with a copy to the Trustee. To the extent that the aggregate principal amount of Notes and other Senior Indebtedness tendered (and electing to be redeemed such Second Lien Priority Indebtedness or repaidSenior Pari Passu Indebtedness, as applicable) tendered pursuant to an Asset Sale Offer is less than the Excess Asset Sale Proceeds, the Company and its Restricted Subsidiaries Issuers may use any remaining Excess Asset Sale Proceeds for general corporate purposes and or any other purpose not otherwise prohibited by this Indenture. If the aggregate principal amount of Notes (and such Second Lien Priority Indebtedness or Senior Pari Passu Indebtedness, as applicable) surrendered by holders thereof exceeds the amount of Excess Proceeds, the Trustee shall select the Notes (and the applicable agent or trustee shall select such other Second Lien Priority Indebtedness or Senior Pari Passu Indebtedness, as applicable) to be purchased in the manner described in Section 3.09. Upon completion of the offer to purchaseany such Asset Sale Offer, the amount of Excess Asset Sale Proceeds shall be reset at zero. .
(c) The Company will Issuers shall comply with the requirements of Rule 14e-1 under the Exchange Act and any other securities laws and regulations thereunder to the extent such laws and or regulations are applicable in connection with the repurchase of 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 Section 4.10Indenture, the Company Issuers will comply with the applicable securities laws and regulations and will shall not be deemed to have breached its their obligations described in this Indenture by virtue thereof. The Issuers may rely on any no action letters issued by the SEC indicating that the staff of the SEC will not recommend enforcement action in the event a tender offer satisfies certain conditions.
(d) The provisions under this Section 4.10 by virtue Indenture relating to the Issuers’ obligation to make an Asset Sale Offer may be waived or modified with the written consent of a majority in principal amount of the Company’s compliance with such securities laws or regulationsNotes.
Appears in 1 contract
Asset Sales. (a) The Company will shall not, and will shall not cause or permit any of its Restricted Subsidiaries to, directly or indirectly, consummate an Asset Sale 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 (measured as of the date of the definitive agreement with respect to such Asset Sale) of the assets or Equity Interests issued or sold or otherwise disposed of; and
(2) at least 75% of the consideration received in such the Asset Sale by the Company or such Restricted Subsidiary is in the form of cash or Cash Equivalents; provided that any of the following items shall be deemed to be cash and cash, Cash Equivalents for or Replacement Assets or a combination thereof (which determination may be made by the Issuer, at its option, either (x) at the time such Asset Sale is approved by the Issuer’s Board of Directors or (y) at the time the Asset Sale is completed). For purposes of this clause (2):), each of the following will be deemed to be cash:
(aA) the assumption of any liabilities (liabilities, as shown recorded on the Company’s or the Restricted Subsidiary’s most recent balance sheet) sheet of the Company or any Restricted Subsidiary of the Company (other than contingent liabilities or liabilities that are by their terms subordinated to the Notes issued under this Indenture or any Subsidiary Guarantee) the Notes Guarantees), that are assumed by the transferee of any such assets pursuant to and as a customary novation agreement that releases result of which the Company and its Restricted Subsidiaries are no longer obligated with respect to such liabilities or the Restricted Subsidiary from are indemnified against further liabilityliabilities or that are otherwise retired or repaid;
(bB) any securities, notes or other obligations received by the Company or any such Restricted Subsidiary from such transferee that are converted by the Company or the such Restricted Subsidiary into cash or Cash Equivalents within 180 days following their receipt (the closing of the Asset Sale, to the extent of the cash or Cash Equivalents received); andreceived in that conversion;
(cC) any stock Capital Stock or assets of the kind referred to in clauses Section 4.09(b)(2) or (4);
(D) Indebtedness (other than Indebtedness that is by its terms subordinated to the Notes or the Notes Guarantees) of any Restricted Subsidiary that is no longer a Restricted Subsidiary as a result of such Asset Sale, to the extent that Carnival plc and each other Restricted Subsidiary are released from any Guarantee of such Indebtedness in connection with such Asset Sale;
(E) consideration consisting of Indebtedness of the Company or any Guarantor received from Persons who are not the Company or any Restricted Subsidiary; and
(F) consideration other than cash, Cash Equivalents or Replacement Assets received by the Company or any Restricted Subsidiary in Asset Sales with a Fair Market Value not exceeding $250.0 million in the aggregate outstanding at any one time.
(b) and (d) of the next paragraph of this Section 4.10. Within 365 450 days after the receipt of any Net Proceeds from an Asset SaleSale or any Event of Loss, the Company (or the applicable Restricted Subsidiary, as the case may be, ) may apply such Net Proceeds, at its option:
(a1) to prepay, repay, purchase, repurchase or redeem any secured Indebtedness of the Company or any Restricted Subsidiary of the Company;
(b) Notes pursuant to acquire a controlling interest in another business or all or substantially all of the assets or operating line of another business, in each case engaged in a Permitted Business;
(c) to make capital expenditures; or
(d) to acquire other non-current assets to be used in a Permitted Business. Pending the final application of any such Net Proceeds, the Company may temporarily reduce Indebtedness under any Credit Facility or otherwise expend or invest such Net Proceeds in any manner that is not prohibited by this Indenture. Any Net Proceeds from Asset Sales described in this paragraph that are not applied or invested as provided in the first sentence of this paragraph of this Section 4.10 shall be deemed to constitute “Excess Asset Sale Proceeds.” When the aggregate amount of Excess Asset Sale Proceeds exceeds $10.0 million, the Company will be required under this Indenture to make an offer to the all Holders of Notes issued thereunder and the holders of any other Senior Indebtedness that is subject to requirements with respect to the application of net proceeds from asset sales that are substantially similar to those contained in this Indenture (an “Asset Sale Offer”) to at a purchase on a pro rata basis (with the Excess Asset Sale Proceeds prorated between the Holders of the Notes and such holders of such other Senior Indebtedness based upon outstanding aggregate principal amounts) the maximum principal amount of the Notes and such other Senior Indebtedness that may be purchased or prepaid, as applicable, out of the prorated Excess Asset Sale Proceeds, at an offer price in cash in an amount equal to 100% of the principal amount thereof thereof, plus accrued and unpaid interest thereon to (but not including) the date of purchasepurchase (a “Notes Offer”);
(2) to acquire all or substantially all of the assets of, or any Capital Stock of, another Permitted Business; provided that (i) after giving effect to any such acquisition of Capital Stock, the Permitted Business is or becomes a Restricted Subsidiary and (ii) to the extent the assets that were the subject of such Asset Sale or Event of Loss comprised part of the Collateral, the assets comprising such Permitted Business shall also be pledged as Collateral;
(3) to make a capital expenditure; provided that to the extent the assets that were the subject of such Asset Sale or Event of Loss comprised part of the Collateral, such capital expenditures shall be made in respect of assets that are Collateral;
(4) to acquire other assets (other than Capital Stock) not classified as current assets under GAAP that are used or useful in a Permitted Business; provided that to the extent the assets that were the subject of such Asset Sale or Event of Loss comprised part of the Collateral, the assets being acquired shall also be pledged as Collateral;
(5) to repurchase, prepay, redeem or repay Indebtedness (a) that is secured by a Lien on the Collateral ranking pari passu with the Liens on the Collateral securing the Notes in accordance with Section 4.06, Section 4.07 and Section 4.25; provided that in connection with any repurchase, prepayment, redemption or repayment of revolving credit Indebtedness pursuant to this clause (a), the Company or such Restricted Subsidiary will retire such Indebtedness and will cause the related commitment to be permanently reduced in an amount equal to the principal amount so repurchased, prepaid, redeemed or repaid; (b)upon the sale of assets that do not constitute Collateral, of a Restricted Subsidiary which is not a Guarantor (other than Indebtedness owed to the Company or a Restricted Subsidiary), or Indebtedness of the Issuer or any Guarantor that is secured by a Lien (provided that the assets secured by such Lien do not constitute Collateral) or (c) of the Issuer or a Guarantor which is secured by a Lien on the Collateral and which is pari passu in right of payment with the Notes or any Note Guarantee; provided that, in the case of this clause (c), the Company (or the applicable Restricted Subsidiary) may repurchase, prepay, redeem or repay such pari passu Indebtedness only if the Company (or the applicable Restricted Subsidiary) makes an offer to all Holders to purchase their Notes in accordance with the procedures provisions set forth in this Indenture. To the extent that the below for an Asset Sale Offer for an aggregate principal amount of Notes and other Senior Indebtedness tendered at least equal to the proportion that (and electing to be redeemed or repaid, as applicablex) pursuant to an Asset Sale Offer is less than the Excess Asset Sale Proceeds, the Company and its Restricted Subsidiaries may use any remaining Excess Asset Sale Proceeds for general corporate purposes and any other purpose not prohibited by this Indenture. Upon completion of the offer to purchase, the total aggregate principal amount of Excess Asset Sale Proceeds shall 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 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, 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 the Company’s compliance with such securities laws or regulations.Notes outstanding bears to
Appears in 1 contract
Samples: Indenture (Carnival PLC)
Asset Sales. The Company (a) Holdings will not, and will not permit any of its Restricted Subsidiaries Subsidiary to, consummate an Asset Sale or a Permitted Seadrift Equity Disposition unless:
(1) In the Company case of an Asset Sale, Holdings or the such Restricted Subsidiary, as the case may be, receives consideration at the time of the such Asset Sale at least equal to the Fair Market Value (measured as of the date of the definitive agreement with respect to such Asset Sale) fair market value of the assets or Equity Interests issued or sold or otherwise disposed ofof as determined at the time the commitment to make such Asset Sale is given; and
(2) In the case of an Asset Sale, at least 75% of the consideration received in by Holdings or a Restricted Subsidiary from such Asset Sale Sale, together with the consideration from all other Asset Sales since the Issue Date (on a cumulative basis) received by Holdings or a Restricted Subsidiary, as the case may be, is in the form of cash or Cash Equivalents; provided provided, that any of the following items shall be deemed to be cash and Cash Equivalents for the purposes of this clause (2):) and for no other purpose:
(a) the assumption amount of any liabilities (as shown on the Company’s Holdings’ or the such Restricted Subsidiary’s most recent balance sheetsheet or in the footnotes thereto) of the Company Holdings or any such Restricted Subsidiary of the Company (Subsidiary, other than liabilities that are by their terms subordinated to the Notes issued under this Indenture or any Subsidiary Note Guarantor’s Note Guarantee, that: (i) are assumed by the transferee of any such assets pursuant in connection with an Asset Sale to a customary novation agreement Third Party for a bona fide business purpose, or (ii) that releases are otherwise cancelled or terminated in connection with the Company transaction with such transferee (other than intercompany debt owed to Holdings or the its Restricted Subsidiary from further liabilitySubsidiaries) 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 Asset Sale of any securities, notes or other obligations or assets received by the Company Holdings or any such Restricted Subsidiary from such transferee that are converted by the Company Holdings or the such Restricted Subsidiary into cash or Cash Equivalents within 180 days following their receipt (to the extent of the Cash Equivalents received) within 180 days following the closing of such Asset Sale;
(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 Notes or Note Guarantees), to the extent that 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, and
(e) the fair market value of property or assets received as consideration in such 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 such Asset Sale pursuant to clause (b)(2) of this covenant.
(3) in the case of a Permitted Seadrift Equity Disposition, (i) the Note Parties or Seadrift receive consideration at the time of such Permitted Seadrift Equity Disposition at least equal to the fair market value of the assets sold or otherwise disposed of as determined at the time the commitment to make such Permitted Seadrift Equity Disposition is given; and (ii) at least 75% of the consideration received by the Note Parties or Seadrift from such Permitted Seadrift Equity Disposition is in the form of cash or Cash Equivalents; provided, that the following shall be deemed to be Cash Equivalents for purposes of this clause (ii) and for no other purpose:
(a) the amount of any liabilities (as shown on the applicable Note Party’s or Seadrift’s most recent balance sheet or in the footnotes thereto) of the Note Parties or Seadrift, other than liabilities that are by their terms subordinated to the Notes or any Note Guarantor’s Note Guarantee, 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 Note Parties or Seadrift from such transferee that are converted by such Note 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) any stock 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 the kind referred such Permitted Seadrift Equity Disposition pursuant to in clauses clause (b)(2) of this covenant.
(b) and Within (dx) of the next paragraph of this Section 4.10. Within 365 days after the receipt of any Net Proceeds of any Asset Sale or (y) 730 days after the receipt of any Net Proceeds of any Permitted Seadrift Equity Disposition, Holdings or such Restricted Subsidiary, at its option, may apply the Net Proceeds from such Asset Sale or Permitted Seadrift Equity Disposition:
(1) (a) in the case of an Asset Sale, to the Company or the Restricted Subsidiary, as the case may be, may apply such Net Proceeds, at its option:
(a) to prepay, repay, purchase, repurchase or redeem any secured Indebtedness of the Company or any Restricted Subsidiary of the Company;
(b) to acquire a controlling interest in another business or all or substantially all of extent the assets or operating line property disposed of another businessin the Asset Sale constituted Collateral or the Calais Facility, to repay: (i) Obligations under the Revolving Credit Facilities (without a corresponding commitment reduction), (ii) the Term Loan Obligations (it being understood and agreed that any reduction of delayed draw commitments in each case engaged in a Permitted Business;
(c) to make capital expenditures; or
(d) to acquire other nonrespect of the Term Loan Obligations shall be deemed, dollar-current assets to be used in a Permitted Business. Pending the final for-dollar, an application of any such Net Proceeds, the Company may temporarily reduce Indebtedness under any Credit Facility or otherwise expend or invest such Net Proceeds in any manner that is not prohibited by this Indenture. Any Net Proceeds from Asset Sales described in this paragraph that are not applied or invested as provided in the first sentence of this paragraph of this Section 4.10 shall be deemed to constitute “Excess Asset Sale Proceeds.” When the aggregate amount of Excess Asset Sale Proceeds exceeds $10.0 million, the Company will be required under this Indenture to make an offer to the Holders of Notes issued thereunder and the holders of any other Senior Indebtedness that is subject to requirements with respect to the application of net proceeds from asset sales that are substantially similar to those contained in this Indenture (an “Asset Sale Offer”) to purchase on a pro rata basis (with the Excess Asset Sale Proceeds prorated between the Holders of the Notes and such holders of such other Senior Indebtedness based upon outstanding aggregate principal amounts) the maximum principal amount of the Notes and such other Senior Indebtedness that may be purchased or prepaid, as applicable, out of the prorated Excess Asset Sale Proceeds, at an offer price in cash in an amount equal to the delayed draw commitments so reduced), (iii) any other First Lien Indebtedness, other than Indebtedness owed to Holdings or a Restricted Subsidiary, or (iv) subject to any Applicable Intercreditor Arrangement and the terms of any First Lien Indebtedness, Obligations under the New Notes or any other Additional Equal Priority Obligations, other than Indebtedness owed to Holdings or a Restricted Subsidiary; provided that if Holdings or a Restricted Subsidiary shall repay any New 4.625% Notes or any Additional Equal Priority Obligations, it shall (x) reduce Obligations under the Notes equally and ratably with any such New 4.625% Notes and Additional Equal Priority Obligations repaid pursuant to this clause (1)(a) as provided under Section 5 of the Notes and/or through open-market purchases (to the extent such purchases are at or above 100% of the principal amount thereof plus accrued and unpaid interest thereon to the date of purchase, thereof) and/or (y) make an offer (in accordance with the procedures set forth in this Indenture. To the extent that the aggregate principal amount of Section 4.12) to all Holders to purchase their Notes and other Senior Indebtedness tendered (and electing to be redeemed or repaid, as applicable) pursuant to an Asset Sale Offer is less than the Excess Asset Sale Proceeds, the Company and its Restricted Subsidiaries may use any remaining Excess Asset Sale Proceeds for general corporate purposes and any other purpose not prohibited by this Indenture. Upon completion of the offer to purchase, the amount of Excess Asset Sale Proceeds shall 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 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, 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 the Company’s compliance with such securities laws or regulations.on a ratable basis;
Appears in 1 contract
Asset Sales. The Company will shall not, and will shall not permit any of its Restricted Subsidiaries to, consummate an Asset Sale unless:
unless (1a) the Company or the such Restricted Subsidiary, as the case may be, receives consideration at the time of the such Asset Sale at least equal to the Fair Market Value fair market value (measured as evidenced by a resolution of the date Board of the definitive agreement with respect to such Asset SaleDirectors) of the assets or Equity Interests issued or sold or otherwise disposed of; and
of and (2b) at least 75% of the consideration therefor received in by the Company or such Asset Sale Subsidiary is in the form of cash or Cash Equivalents; provided provided, however, that any the amount of the following items shall be deemed to be cash and Cash Equivalents for the purposes of this clause (2):
(ai) the assumption of any liabilities (as shown on the Company’s 's or the such Restricted Subsidiary’s 's most recent balance sheet) of the Company or any such Restricted Subsidiary of the Company (other than contingent liabilities and liabilities that are by their terms subordinated to the Notes issued under this Indenture or any Subsidiary Guaranteeguarantee thereof) that are assumed by the transferee of any such assets pursuant to a customary novation agreement that releases the Company or the such Restricted Subsidiary from further liability;
liability and (bii) any securities, notes or other obligations received by the Company or any such Restricted Subsidiary from such transferee that are promptly converted by the Company or the such Restricted Subsidiary into cash or Cash Equivalents within 180 days following their receipt (to the extent of the cash or Cash Equivalents received); and
(c) any stock or assets of the kind referred shall be deemed to in clauses (b) and (d) of the next paragraph be cash for purposes of this Section 4.10. Within 365 days one year after the receipt of any Net Proceeds from an Asset Sale, the Company or the any such Restricted Subsidiary, as the case may be, Subsidiary may apply such Net Proceeds, Proceeds at its option:
option (a) to prepayrepay Senior Indebtedness or (b) to the acquisition of (i) any assets or property (other than Capital Stock) in a Permitted Business, repay, purchase, repurchase or redeem any secured Indebtedness (ii) the Capital Stock of the Company or any a Person engaged in a Permitted Business that becomes a Restricted Subsidiary of the Company;
Company as a result of the acquisition of such Capital Stock or (biii) to acquire Capital Stock constituting a controlling minority interest in another business or all or substantially all an existing Restricted Subsidiary, except that an acquisition of such minority interest Capital Stock in excess of $1.0 million shall be authorized by a resolution of the assets or operating line Company's Board of another business, in each case engaged in a Permitted Business;
(c) to make capital expenditures; or
(d) to acquire other non-current assets to be used in a Permitted BusinessDirectors. Pending the final application of any such Net Proceeds, the Company or any such Restricted Subsidiary may temporarily reduce Indebtedness outstanding borrowings under any the Credit Facility Agreement or otherwise expend or invest such Net Proceeds in any manner that is not prohibited by this Indenture. Any Net Proceeds from Asset Sales described in this paragraph that are not applied or invested as provided in the first sentence of this paragraph of this Section 4.10 shall will be deemed to constitute “"Excess Asset Sale Proceeds.” " When the aggregate amount of Excess Asset Sale Proceeds exceeds $10.0 million5.0 million in any calendar year, the Company will be required under this Indenture to make an offer to the Holders all holders of Notes issued thereunder (and the to holders of any other Senior Subordinated Indebtedness that is subject to requirements with respect to designated by the application of net proceeds from asset sales that are substantially similar to those contained in this Indenture Company) (an “"Asset Sale Offer”") to purchase on a pro rata basis (with the Excess Asset Sale Proceeds prorated between the Holders of the Notes and such holders of such other Senior Indebtedness based upon outstanding aggregate principal amounts) the maximum principal amount of the Notes (and such other Senior Indebtedness Subordinated Indebtedness) that may be purchased or prepaid, as applicable, out of the prorated Excess Asset Sale Proceeds, Proceeds at an offer price in cash in an amount equal to 100% of the principal amount thereof thereof, plus accrued and unpaid interest and Liquidated Damages, if any, thereon to the date of purchase, in accordance with the procedures set forth in this IndentureSection 3.09. To the extent that the aggregate principal amount of Notes (and other Senior Indebtedness Subordinated Indebtedness) tendered (and electing to be redeemed or repaid, as applicable) pursuant to an Asset Sale Offer is less than the Excess Asset Sale Proceeds, the Company and its Restricted Subsidiaries may use any remaining Excess Asset Sale Proceeds for general corporate purposes and any other purpose not otherwise prohibited by this Indenture. If the aggregate principal amount of Notes (and other Senior Subordinated Indebtedness) surrendered by holders thereof exceeds the amount of Excess Proceeds, Notes (and other Senior Subordinated Indebtedness) to be purchased shall be selected on a pro rata basis. Upon completion of the offer to purchasesuch Asset Sale Offer, the amount of Excess Asset Sale Proceeds shall be reset at zero. The Company will comply shall comply, to the extent applicable, with the requirements of Rule 14e-1 under Section 14(e) of the Exchange Act and any other securities laws and or regulations thereunder to the extent such laws and regulations are applicable in connection with an Asset Sale Offerthe repurchase of Notes pursuant to this Section 4.10. To the extent that the provisions of any securities laws or regulations conflict with the provisions of this Section 4.10, the Company will shall comply with the applicable securities laws and regulations and will shall not be deemed to have breached its obligations under this Section 4.10 by virtue of the Company’s compliance with such securities laws or regulationsthereof.
Appears in 1 contract
Asset Sales. The Company will shall not, and will shall not permit any of its Restricted Subsidiaries Subsidiary to, consummate an any Asset Sale unless:
Sale, unless (1i) the consideration received by the Company or the such Restricted Subsidiary, as the case may be, receives consideration at the time of the Asset Sale Subsidiary is at least equal to the Fair Market Value (measured as of the date of the definitive agreement with respect to such Asset Sale) fair market value of the assets or Equity Interests issued or sold or otherwise disposed of; and
of and (2ii) at least 75% of the consideration received in such Asset Sale is in the form of cash or Cash Equivalents; provided that any of the following items shall be deemed to be cash and Cash Equivalents for the purposes of this clause (2):
(a) the assumption of any excluding contingent liabilities (as shown on the Company’s or the Restricted Subsidiary’s most recent balance sheet) of the Company or any Restricted Subsidiary of the Company (other than liabilities that are by their terms subordinated to Notes issued under this Indenture or any Subsidiary Guarantee) assumed by the transferee of any such assets pursuant to a customary novation agreement that releases assets) received consists of cash or Temporary Cash Investments or the assumption of Senior Indebtedness of the Company or the Restricted a Subsidiary from further liability;
(b) any securitiesGuarantor, notes or other obligations received by provided that the Company or any such Restricted Subsidiary is irrevocably released from all liability under such transferee that are converted by the Company or the Restricted Subsidiary into cash or Cash Equivalents within 180 days following their receipt (to the extent of cash or Cash Equivalents received); and
(c) any stock or assets of the kind referred to in clauses (b) and (d) of the next paragraph of this Section 4.10Indebtedness. Within 365 360 days after the receipt of any Net Cash Proceeds from an Asset SaleSale (other than Barbary Excess Net Cash Proceeds), the Company shall or shall cause the relevant Restricted Subsidiary, as the case may be, may Subsidiary to (i)(A) apply an amount equal to such Net Proceeds, at its option:
(a) Cash Proceeds to prepay, repay, purchase, repurchase or redeem any secured permanently repay Senior Indebtedness of the Company or any Restricted a Subsidiary Guarantor or (B) invest an equal amount, or the amount not so applied pursuant to clause (A) (or enter into a definitive agreement committing to so invest within 12 months after the date of the Company;
(b) to acquire a controlling interest in another business or all or substantially all of the assets or operating line of another businesssuch agreement), in each case property or assets (other than current assets) of a nature or type or that are used in a business (or in Capital Stock of a company having property and assets of a nature or type, or engaged in a Permitted Business;
(cbusiness) similar or related to make capital expenditures; or
(d) to acquire other non-current the nature or type of the property and assets to be used in a Permitted Business. Pending of, or the final application of any such Net Proceedsbusiness of, the Company may temporarily reduce Indebtedness under any Credit Facility or otherwise expend or invest and its Restricted Subsidiaries existing on the date of such investment and (ii) apply (no later than the end of the 12-month period referred to in clause (i)) such excess Net Cash Proceeds in any manner that is not prohibited by this Indenture. Any Net Proceeds from Asset Sales described in this paragraph that are (to the extent not applied or invested pursuant to clause (i)) as provided in the first sentence of this following paragraph of this Section 4.10 shall be deemed to constitute “Excess Asset Sale Proceeds.” When the aggregate 4.17. The amount of Excess Asset Sale such excess Net Cash Proceeds exceeds $10.0 million, the Company will required to be required under this Indenture applied (or to make an offer be committed to the Holders of Notes issued thereunder and the holders of any other Senior Indebtedness that is subject to requirements with respect to the application of net proceeds from asset sales that are substantially similar to those contained in this Indenture (an “Asset Sale Offer”be applied) to purchase on a pro rata basis (with the Excess Asset Sale Proceeds prorated between the Holders of the Notes and during such holders of such other Senior Indebtedness based upon outstanding aggregate principal amounts) the maximum principal amount of the Notes and such other Senior Indebtedness that may be purchased or prepaid, 12-month period as applicable, out of the prorated Excess Asset Sale 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. To clause (i) of the extent that preceding sentence and not applied as so required by the aggregate principal amount end of Notes and other Senior Indebtedness tendered (and electing to be redeemed or repaid, as applicable) pursuant to an Asset Sale Offer is less than such period shall constitute "Excess Proceeds." Pending application of such Net Cash Proceeds by the Excess Asset Sale Proceedsend of the relevant period, the Company and its Restricted Subsidiaries may use such Net Cash Proceeds to temporarily repay revolving Indebtedness. If, as of the first day of any remaining calendar month, the aggregate amount of Excess Asset Sale Proceeds for general corporate purposes not theretofore subject to an Offer to Purchase pursuant to this Section 4.17 totals at least $10.0 million, the Company must commence, not later than the fifteenth Business Day of such month, an Offer to Purchase to the Holders and, to the extent required by the terms of any Pari Passu Indebtedness, an Offer to Purchase to all holders of such Pari Passu Indebtedness, the maximum principal amount of Notes and any other purpose not prohibited by this Indenture. Upon completion such Pari Passu Indebtedness that may be purchased out of the Excess Proceeds, at an offer price equal to purchase100% of the principal amount thereof, plus, in each case, accrued and unpaid interest and Additional Interest, if any, to the Payment Date. If the aggregate principal amount of Notes and any such Pari Passu Indebtedness tendered by holders thereof exceeds the amount of Excess Asset Sale Proceeds shall 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 an Asset Sale Offer. To the extent that the provisions of any securities laws or regulations conflict with the provisions of this Section 4.10Proceeds, the Company will comply with the applicable securities laws Notes and regulations and will not be deemed to have breached its obligations under this Section 4.10 by virtue of the Company’s compliance with such securities laws or regulations.Pari
Appears in 1 contract
Samples: Indenture (Coast Resorts Inc)
Asset Sales. The Company will not, and will not permit any of its Restricted Subsidiaries to, consummate an Asset Sale unless:
(1) the Company (or the Restricted Subsidiary, as the case may be, ) receives consideration at the time of the Asset Sale at least equal to the Fair Market Value (measured as of the date of the definitive agreement with respect to such Asset Sale) of the assets or Equity Interests issued or sold or otherwise disposed of; and
(2) at least 75% of the consideration received in such the Asset Sale by the Company or such Restricted Subsidiary is in the form of cash or Cash Equivalents; provided that any cash. For purposes of this provision, each of the following items shall will be deemed to be cash and Cash Equivalents for the purposes of this clause (2):cash:
(a) the assumption of any liabilities (liabilities, as shown on the Company’s or the Restricted Subsidiary’s most recent consolidated balance sheet) , of the Company or any Restricted Subsidiary of the Company (other than contingent liabilities and liabilities that are by their terms subordinated to the Notes issued under this Indenture or any Subsidiary Note Guarantee) that are assumed by the transferee of any such assets pursuant to a customary novation agreement that releases the Company or the such Restricted Subsidiary from further liability;
(b) any securities, notes or other obligations received by the Company or any such Restricted Subsidiary from such transferee that are converted by the Company or the such Restricted Subsidiary into cash or Cash Equivalents within 180 90 days following their receipt (of receipt, to the extent of the cash or Cash Equivalents received)received in that conversion; and
(c) any stock or assets of the kind referred to in clauses (b2) and or (d4) of the next paragraph of this Section 4.10. Within 365 360 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 Net Proceeds, Proceeds at its option:
(a1) to prepayrepay Senior Debt and, repayif the Senior Debt repaid is revolving credit Indebtedness, purchase, repurchase to correspondingly reduce commitments with respect thereto;
(2) to acquire all or redeem any secured Indebtedness substantially all of the Company 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;
(b) to acquire a controlling interest in another business or all or substantially all of the assets or operating line of another business, in each case engaged in a Permitted Business;
(c3) to make a capital expendituresexpenditure; or
(d4) to acquire other non-assets that are not classified as current assets to be under GAAP and that are used or useful in a Permitted Business. Pending the final application of any such Net Proceeds, the Company may temporarily reduce Indebtedness under any Credit Facility revolving credit borrowings or otherwise expend or invest such the Net Proceeds in any manner that is not prohibited by this Indenture. Any Net Proceeds from Asset Sales described in this paragraph that are not applied or invested as provided in the first sentence of this second paragraph of this Section 4.10 shall be deemed to will constitute “Excess Asset Sale Proceeds.” When the aggregate amount of Excess Asset Sale Proceeds exceeds $10.0 15.0 million, within five days thereof, the Company will be required under this Indenture to make an offer Asset Sale Offer to the all Holders of Notes issued thereunder and the all holders of any other Senior Indebtedness that is subject pari passu with the Notes containing provisions similar to requirements those set forth in this Indenture with respect to the application of net proceeds from asset sales that are substantially similar to those contained in this Indenture (an “Asset Sale Offer”) offers to purchase on a pro rata basis (or redeem with the Excess Asset Sale Proceeds prorated between the Holders proceeds of the Notes and such holders sales of such other Senior Indebtedness based upon outstanding aggregate principal amounts) assets in accordance with Section 3.09 hereof to purchase the maximum principal amount of the Notes and such other Senior pari passu Indebtedness that may be purchased or prepaid, as applicable, out of the prorated Excess Asset Sale Proceeds, at an . The offer price in cash in an amount any Asset Sale Offer will be equal to 100% of the principal amount thereof plus accrued and unpaid interest thereon and Liquidated Damages, if any, to the date of purchase, and will be payable in accordance with cash. If any Excess Proceeds remain after consummation of an Asset Sale Offer, the procedures set forth in Company may use those Excess Proceeds for any purpose not otherwise prohibited by this Indenture. To the extent that If the aggregate principal amount of Notes and other Senior pari passu Indebtedness tendered (and electing to be redeemed or repaid, as applicable) pursuant to an into such Asset Sale Offer is less than exceeds the amount of Excess Asset Sale Proceeds, the Company Trustee shall select the Notes and its Restricted Subsidiaries may use any remaining Excess Asset Sale Proceeds for general corporate purposes and any such other purpose not prohibited by this Indenturepari passu Indebtedness to be purchased on a pro rata basis. Upon completion of the offer to purchaseeach Asset Sale Offer, the amount of Excess Asset Sale Proceeds shall will be reset at zero. The Company will comply with the requirements of Rule 14e-1 under the Exchange Act and any other securities laws and regulations thereunder to the extent such those laws and regulations are applicable in connection with 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 the Company’s compliance with such securities laws or regulationscompliance.
Appears in 1 contract
Samples: Indenture (Herbst Gaming Inc)
Asset Sales. The Company will shall not, and will shall not permit any of its Restricted Subsidiaries to, consummate an Asset Sale unless:
unless (1i) the Company (or the Restricted Subsidiary, as the case may be, ) receives consideration at the time of the such Asset Sale at least equal to the Fair Market Value fair market value (measured as evidenced by a resolution of the date of Management Committee set forth in an Officers' Certificate delivered to the definitive agreement with respect to such Asset SaleTrustee) of the assets or Equity Interests issued or sold or otherwise disposed of; and
of and (2ii) at least 75% of the consideration therefor received in by the Company or such Asset Sale Restricted Subsidiary is in the form of cash or and Cash Equivalents; provided that any the amount of the following items shall be deemed to be cash and Cash Equivalents for the purposes of this clause (2):
(ax) the assumption of any liabilities (as shown on the Company’s 's or the such Restricted Subsidiary’s 's most recent balance sheet) ), of the Company or any Restricted Subsidiary of the Company (other than contingent liabilities and liabilities that are by their terms subordinated to the Notes issued under this Indenture or any Subsidiary Guaranteeguarantee thereof) that are assumed by the transferee of any such assets pursuant to a customary novation agreement that releases the Company or the such Restricted Subsidiary from further liability;
liability and (by) any securities, notes Notes or other obligations received by the Company or any such Restricted Subsidiary from such transferee that are converted by the Company or the such Restricted Subsidiary into cash or Cash Equivalents within 180 days following their receipt (to the extent of the cash or Cash Equivalents received); and
(c) any stock or assets within 60 days following the closing of the kind referred such Asset Sale, shall be deemed to in clauses (b) and (d) of the next paragraph be cash for purposes of this Section 4.10provision. Within 365 360 days after the receipt of any Net Proceeds from an Asset Sale, the Company or the any Restricted Subsidiary, as the case may be, Subsidiary may apply such Net Proceeds, at its option:
, (a) to prepayrepay Senior Debt, repay, purchase, repurchase or redeem any secured Indebtedness of the Company or any Restricted Subsidiary of the Company;
(b) to acquire the acquisition of a controlling interest in another business or all or substantially all majority of the assets of, or operating line a majority of the Voting Stock of, another businessPermitted Business, in each case engaged the making of a capital expenditure or the acquisition of other long-term assets that are used or useful in a Permitted Business;
Business or (c) to make capital expenditures; or
for a combination of uses described in clauses (da) to acquire other non-current assets to be used in a Permitted Businessand (b). Pending the final application of any such Net Proceeds, the Company and its Restricted Subsidiaries may temporarily reduce Indebtedness under any Credit Facility revolving credit borrowings or otherwise expend or invest such Net Proceeds in any manner that is not prohibited by this the Indenture. Any Net Proceeds from Asset Sales described in this paragraph that are not applied or invested as provided in the first sentence of this paragraph of this Section 4.10 shall will be deemed to constitute “"Excess Asset Sale Proceeds.” " When the aggregate amount of Excess Asset Sale Proceeds exceeds $10.0 million, the Company Issuers will be required under this Indenture to make an offer to the all Holders of Notes issued thereunder and the holders of any other Senior Indebtedness that is subject to requirements with respect to the application of net proceeds from asset sales that are substantially similar to those contained in this Indenture (an “"Asset Sale Offer”") to purchase on a pro rata basis (with the Excess Asset Sale Proceeds prorated between the Holders of the Notes and such holders of such other Senior Indebtedness based upon outstanding aggregate principal amounts) the maximum principal amount of the Notes and such other Senior Indebtedness that may be purchased or prepaid, as applicable, out of the prorated Excess Asset Sale Proceeds, at an offer price in cash in an amount equal to 100% of the principal amount thereof plus accrued and unpaid interest thereon and Liquidated Damages thereon, if any, to the date of purchaserepurchase, in accordance with the procedures set forth in this Indenture. 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 other Senior Indebtedness tendered (and electing to be redeemed or repaid, as applicable) pursuant to an into such Asset Sale Offer is less than surrendered by Holders thereof exceeds the amount of Excess Asset Sale Proceeds, the Company and its Restricted Subsidiaries may use any remaining Excess Asset Sale Proceeds for general corporate purposes and any other purpose not prohibited by this IndentureTrustee shall select the Notes to be purchased on a pro rata basis. Upon completion of the such offer to purchase, the amount of Excess Asset Sale Proceeds shall 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 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, 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 the Company’s compliance with such securities laws or regulations.
Appears in 1 contract
Samples: Indenture (National Crane Corp)
Asset Sales. The Company AirGate, will not, and will not permit any of its Restricted Subsidiaries to, consummate an Asset Sale unless:
(1) the Company AirGate, or the Restricted Subsidiary, as the case may be, receives consideration at the time of the such Asset Sale at least equal to the Fair Market Value (measured as of the date of the definitive agreement with respect to such Asset Sale) fair market value of the assets or Equity Interests issued or sold or otherwise disposed of; and;
(2) such fair market value 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 Board of Directors set forth in an Officers' Certificate delivered to the Trustee;
(3) at least 75% of the consideration therefor received in by AirGate or such Asset Sale Restricted Subsidiary is in the form of cash or Cash Equivalents; provided that any . For purposes of this provision, each of the following items shall be deemed to be cash and Cash Equivalents for the purposes of this clause (2):cash:
(a) the assumption of any liabilities (liabilities, as shown on the Company’s AirGate's or the such Restricted Subsidiary’s 's most recent balance sheet) , of the Company AirGate or any Restricted Subsidiary of the Company (Subsidiary, other than contingent liabilities and liabilities that are by their terms subordinated to the Notes issued under this Indenture or any Subsidiary Guarantee) , that are assumed by the transferee of any such assets pursuant to a customary novation agreement that releases the Company AirGate or the such Restricted Subsidiary from further liability;; and
(b) any securities, notes Notes or other obligations 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 the such Restricted Subsidiary into cash or Cash Equivalents within 180 days following their receipt (cash, to the extent of the cash or Cash Equivalents received)received in that conversion; and
(c4) any stock or assets if such Asset Sale involves the transfer of Collateral, (a) such Asset Sale complies with the applicable provisions of the kind referred to in clauses Security Documents and (b) and all consideration (dother than cash) of received in such Asset Sale shall be expressly made subject to the next paragraph of this Section 4.10Lien under the Security Documents, which Lien shall be junior in priority to a similar Lien granted to secure Senior Debt. Within 365 360 days after the receipt of any Net Proceeds from an Asset Sale, the Company or the Restricted Subsidiary, as the case may be, AirGate may apply such Net Proceeds, Proceeds at its option:
(a1) to prepay, repay, purchase, repurchase or redeem any secured Indebtedness of the Company or any Restricted Subsidiary of the Companyrepay Senior Debt;
(b2) to acquire a controlling interest in another business or all or substantially all of the assets of, or operating line a majority of the Voting Stock of, another businessPermitted Business which becomes part of, or which is or becomes, a Restricted Subsidiary;
(3) to make a capital expenditure in each case engaged assets that are used or useful in a Permitted Business;
(c) to make capital expenditures; or
(d4) to acquire other nonlong-current term assets to be that are used or useful in a Permitted Business. Pending the final application of any such Net Proceeds, the Company AirGate may temporarily reduce Indebtedness under any Credit Facility revolving credit borrowings or otherwise expend or invest such Net Proceeds in any manner that is not prohibited by this Indenture. Any Net Proceeds from Asset Sales described in this paragraph that are not applied or invested as provided in the first sentence of this preceding paragraph of this Section 4.10 shall be deemed to will constitute “"Excess Asset Sale Proceeds.” " When the aggregate amount of Excess Asset Sale Proceeds exceeds $10.0 millionmillion (an "Excess Proceeds Triggering Event"), the Company AirGate will be required under this Indenture to make an offer to the Holders of Notes issued thereunder and the holders of any other Senior Indebtedness that is subject to requirements with respect to the application of net proceeds from asset sales that are substantially similar to those contained in this Indenture (an “Asset Sale Offer”) to purchase on a pro rata basis (with the Excess Asset Sale Proceeds prorated between the Holders of the Notes and such holders of such other Senior Indebtedness based upon outstanding aggregate principal amounts) the maximum principal amount of the Notes and such other Senior Indebtedness that may be purchased or prepaid, as applicable, out of the prorated Excess Asset Sale Proceeds, at an . The offer price in cash in an amount any Asset Sale Offer will be equal to 100% of the principal amount thereof amount, plus accrued and unpaid interest thereon interest, if any, to the date of purchasepurchase and will be payable in cash. If any Excess Proceeds remain after consummation of an Asset Sale Offer, in accordance with the procedures set forth in AirGate may use such Excess Proceeds for any purpose not otherwise prohibited by this Indenture. To the extent that If the aggregate principal amount of Notes and such other Senior pari passu Indebtedness tendered (and electing to be redeemed or repaid, as applicable) pursuant to an into such Asset Sale Offer is less than exceeds the amount of Excess Asset Sale Proceeds, the Company Trustee shall select the Notes and its Restricted Subsidiaries may use any remaining Excess Asset Sale Proceeds for general corporate purposes and any such other purpose not prohibited by this Indenturepari passu Indebtedness to be purchased on a pro rata basis. Upon completion of the offer to purchaseeach Asset Sale Offer, the amount of Excess Asset Sale Proceeds shall be reset at zero. The Company 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 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 Section 4.10Indenture, the Company AirGate 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 Section 4.10 Indenture by virtue of the Company’s compliance with such securities laws or regulationsconflict.
Appears in 1 contract
Samples: Indenture (Airgate PCS Inc /De/)
Asset Sales. The (a) Neither the Company will not, and will not permit nor any of its Restricted Subsidiaries to, shall consummate an Asset Sale unless:
(1i) the Company or the its Restricted Subsidiary, as the case may be, receives consideration at the time of the Asset Sale at least equal to the Fair Market Value (measured as of the date of the definitive agreement with respect to such Asset Sale) of the assets sold, leased, conveyed or otherwise disposed of or of the Equity Interests issued or sold or otherwise disposed ofsold;
(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) (A) at least 75% of the consideration therefor received in such Asset Sale by the Company or its Restricted Subsidiary is in the form of cash or Cash Equivalents; provided that any Equivalents or (B) the Asset Sale qualifies as a Permitted Telecommunications Exchange Transaction. For purposes of clause (iii) of this paragraph (a), the following items shall be deemed are considered to be cash and Cash Equivalents for the purposes of this clause (2):
(a) the assumption of cash: any liabilities (liabilities, as shown on the Company’s 's or the such Restricted Subsidiary’s 's most recent balance sheet) , of the Company or any Restricted Subsidiary of the Company (Subsidiary, other than contingent liabilities and liabilities that are by their terms subordinated to the Notes issued under this Indenture or any Subsidiary Note Guarantee) , that are assumed by the transferee of any such assets or Equity Interests pursuant to a customary novation agreement that releases released the Company or the such Restricted Subsidiary from further liability;
(b) ; and any securities, notes or other obligations received by the Company or any such Restricted Subsidiary from such transferee that are converted by the Company or the such Restricted Subsidiary into cash or Cash Equivalents within 180 60 days following their receipt (the closing, to the extent of the cash or Cash Equivalents received); andreceived in that conversion.
(c) any stock or assets of the kind referred to in clauses (b) and (d) of the next paragraph of this Section 4.10. Within 365 360 days after the receipt of any Net Proceeds from an Asset Sale, the Company or any Restricted Subsidiary shall be permitted to apply the Restricted Subsidiary, as the case may be, may apply such Net Proceeds, at its option:,
(ai) to prepay, repay, purchase, repurchase or redeem any secured Indebtedness repay Senior Debt;
(ii) to acquire a majority of the Company Voting Stock of another Permitted Business which becomes part of, or any which is or becomes, a Restricted Subsidiary of the Company;
(biii) to acquire a controlling interest make one or more capital expenditures in another business assets that are used or all or substantially all of the assets or operating line of another business, in each case engaged useful in a Permitted Business;
(c) to make capital expenditures; or
(div) to acquire other non-current assets to be that are used or useful in a Permitted Business. Pending the final application of any such Net Proceeds, the Company may temporarily reduce Indebtedness under any Credit Facility revolving credit borrowings or otherwise expend or invest such Net Proceeds in any manner that is not prohibited by this Indenture. .
(c) Any Net Proceeds from Asset Sales described in this paragraph that are not applied or invested as provided in the first sentence of this paragraph (b) of this Section 4.10 shall will be deemed to constitute “"Excess Asset Sale Proceeds.” " When the aggregate amount of Excess Asset Sale Proceeds exceeds is greater than $10.0 million, the Company will shall be required under this Indenture to make an offer to the Holders all holders of Notes issued thereunder and the all holders of any other Senior Indebtedness that is subject equal in right of payment with the Notes containing provisions similar to requirements those set forth in this Indenture with respect to offers to purchase or redeem the application Indebtedness with the proceeds of net proceeds from asset sales that are substantially similar to those contained in this Indenture of assets (an “"Asset Sale Offer”") to purchase on a pro rata basis (with the Excess Asset Sale Proceeds prorated between the Holders of the Notes and such holders of such other Senior Indebtedness based upon outstanding aggregate principal amounts) the maximum Accreted Value or principal amount at maturity of the Notes and such other Senior Indebtedness that is equal in right of payment that may be purchased or prepaid, as applicable, out of the prorated Excess Asset Sale Proceeds, at an . The offer price in cash in an amount any Asset Sale Offer will be equal to 100% of the Accreted Value or 100% of the principal amount thereof at maturity, plus accrued and unpaid interest thereon interest, if any, to the date of purchase, as applicable, and will be payable in accordance with cash. If any Excess Proceeds remain after consummation of an Asset Sale Offer, the procedures set forth in Company may use such Excess Proceeds for any purpose not otherwise prohibited by this Indenture. To the extent that If the aggregate principal amount of Notes and such other Senior pari passu Indebtedness tendered (and electing to be redeemed or repaid, as applicable) pursuant to an into such Asset Sale Offer is less than exceeds the amount of Excess Asset Sale Proceeds, the Company Trustee shall select the Notes and its Restricted Subsidiaries may use any remaining Excess Asset Sale Proceeds for general corporate purposes 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 any other purpose not prohibited by this Indentureappropriate. Upon completion of the offer to purchasean Asset Sale Offer, the amount of Excess Asset Sale Proceeds shall 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 such rule conflict with the provisions of this Section 4.10Indenture relating to Asset Sales, the Company will shall comply with the applicable securities laws provisions of such rule and regulations and will not be deemed not to have breached its obligations under this Section 4.10 relating to such Asset Sale provisions by virtue of the Company’s compliance with such securities laws or regulationsconflict.
Appears in 1 contract
Samples: Indenture (Ipcs Inc)
Asset Sales. The Company will shall not, and will shall not permit any of its Restricted Subsidiaries to, directly or indirectly, consummate an any Asset Sale unless:
Sale, unless (1i) the Company (or the such Restricted Subsidiary, as the case may be, ) receives consideration at the time of the such Asset Sale at least equal to the Fair Market Value fair market value (measured as determined in good faith by the Board of Directors (including as to the date value of all noncash consideration) and set forth in an Officer's Certificate delivered to the definitive agreement with respect to such Asset SaleTrustee) of the assets or Equity Interests issued or sold or otherwise disposed of; and
of and (2ii) at least 75% of the consideration received in such Asset Sale therefor is in the form of cash or and/or Cash Equivalents; provided that any of the following items shall be deemed to be cash , and Cash Equivalents for the purposes of this clause (2):
(aiii) the assumption of any liabilities (as shown on the Company’s or the Restricted Subsidiary’s most recent balance sheet) of the Company or any Restricted Subsidiary of the Company (other than liabilities that are by their terms subordinated to Notes issued under this Indenture or any Subsidiary Guarantee) by the transferee of any such assets pursuant to a customary novation agreement that releases the Company or the Restricted Subsidiary from further liability;
(b) any securities, notes or other obligations Net Proceeds received by the Company (or any such Restricted Subsidiary from such transferee that are converted by the Company or the Restricted Subsidiary into cash or Cash Equivalents within 180 days following their receipt (to the extent of cash or Cash Equivalents received); and
(c) any stock or assets of the kind referred to in clauses (b) and (d) of the next paragraph of this Section 4.10. Within 365 days after the receipt of any Net Proceeds from an Asset Sale, the Company or the Restricted Subsidiary, as the case may be, may apply ) from such Asset Sale are applied within 360 days following the receipt of such Net Proceeds, at its option:
Proceeds (a) first, to prepay, repay, purchase, repurchase or redeem any secured Indebtedness of the extent the Company (or any such Restricted Subsidiary Subsidiary, as the case may be) elects, to the redemption or repurchase of the Company;
outstanding Senior Debt and (b) to acquire a controlling interest in another business or all or substantially all the extent of the balance of such Net Proceeds after application as described in (a) above and to the extent the Company (or such Restricted Subsidiary, as the case may be) elects, to reinvest, or enter into a legally binding agreement to reinvest, such Net Proceeds (or any portion thereof) in assets that are used or operating line of another business, in each case engaged in a Permitted Business;
(c) to make capital expenditures; or
(d) to acquire other non-current assets to be used useful in a Permitted Business. Pending the final application The balance of any such Net Proceeds, after the Company may temporarily reduce Indebtedness under any Credit Facility or otherwise expend or invest application of such Net Proceeds in any manner that is not prohibited by this Indenture. Any Net Proceeds from Asset Sales as described in this paragraph that are not applied or invested as provided in the first sentence of this paragraph of this Section 4.10 immediately preceding clauses (a) and (b), shall be deemed to constitute “"Excess Asset Sale Proceeds.” " 50 When the aggregate amount of Excess Asset Sale Proceeds equals or exceeds $10.0 million15.0 million (taking into account income earned on such Excess Proceeds), the Company will be required under this Indenture to make an offer to the all Holders of Notes issued thereunder and the holders of any other Senior pari passu Indebtedness that is subject to requirements with respect to the application of net proceeds from asset sales that are substantially similar to those contained in this Indenture (an “"Asset Sale Offer”") to purchase on a pro rata basis (with the Excess Asset Sale Proceeds prorated between the Holders of the Notes and such holders of such other Senior Indebtedness based upon outstanding aggregate principal amounts) the maximum principal amount of the Notes and such other Senior pari passu Indebtedness that may be purchased or prepaid, as applicable, out of the prorated Excess Asset Sale Proceeds, at an offer a purchase price in cash in an amount equal to 100% of the principal amount thereof thereof, plus accrued and unpaid interest and Special Interest, if any, thereon to the date of purchase, in accordance with the procedures set forth in Article 3 of this IndentureIndenture 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 Notes and other Senior pari passu Indebtedness tendered (and electing to be redeemed or repaid, as applicable) pursuant to an into such Asset Sale Offer is less than surrendered by Holders thereof exceeds the amount of Excess Asset Sale Proceeds, the Company Trustee shall select the Notes and its Restricted Subsidiaries may use any remaining Excess Asset Sale Proceeds for general corporate purposes and any other purpose not prohibited by this Indenturepari passu Indebtedness to be purchased on a pro rata basis. Upon completion of the offer to purchasesuch Asset Sale Offer, the amount of Excess Asset Sale Proceeds shall be reset at zerozero for purposes of the first sentence of this paragraph. The amount of (x) 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 will comply with the requirements of Rule 14e-1 under the Exchange Act or any Restricted Subsidiary (other than contingent liabilities and any other securities laws and regulations thereunder liabilities that are by their terms subordinated to the extent Notes or any guarantee thereof) that are assumed by the transferee of any such laws and regulations are applicable assets pursuant to an agreement that releases the Company or any Restricted Subsidiary from all liability in connection with an respect thereof, (y) Indebtedness of any Restricted Subsidiary that is no longer a Restricted Subsidiary as a result of such Asset Sale Offer. To Sale, to the extent that the provisions 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 and (z) any securities laws securities, notes or regulations conflict with the provisions of this Section 4.10, other obligations received by the Company (or such Restricted Subsidiary, as the case may be) from such transferee that are contemporaneously (subject to ordinary settlement periods) converted by the Company (or such Restricted Subsidiary, as the case may be) into cash and/or Cash Equivalents (to the extent of the cash and/or Cash Equivalents received), will comply with the applicable securities laws and regulations and will not be deemed to have breached its obligations under be cash and/or Cash Equivalents for purposes of this Section 4.10 by virtue of the Company’s compliance with such securities laws or regulationsprovision.
Appears in 1 contract
Asset Sales. The Company will shall not, and will shall not permit any of its Restricted Subsidiaries to, consummate cause or make an Asset Sale unless:
unless (1i) the Company (or the Restricted Subsidiary, as the case may be, ) receives consideration at the time of the such Asset Sale at least equal to the Fair Market Value (measured as evidenced by a resolution of the date Board of Directors, which in the definitive agreement case of an Asset Sale with respect a Fair Market Value exceeding $5 million, shall be set forth in an Officer's Certificate delivered to such Asset Salethe Trustee) of the assets or Equity Interests issued or sold or otherwise disposed of; and
of and (2ii) at least 75% of the consideration therefor received in by the Company or such Asset Sale Restricted Subsidiary is in the form of cash or Cash Equivalents; provided that any the amount of the following items shall be deemed to be cash and Cash Equivalents for the purposes of this clause (2):
(ax) the assumption of any liabilities (as shown on the Company’s 's or the such Restricted Subsidiary’s 's most recent balance sheet) of the Company or any Restricted Subsidiary of the Company (other than contingent liabilities and liabilities that are by their terms subordinated to the Notes issued under this Indenture or any Subsidiary GuaranteeGuarantee thereof) that are assumed by the transferee of any such assets pursuant to a customary novation agreement that releases the Company or the such Restricted Subsidiary from further liability;
liability and (by) any securities, notes or other obligations Obligations received by the Company or any such Restricted Subsidiary from such transferee that are immediately converted by the Company or the such Restricted Subsidiary into cash or Cash Equivalents within 180 days following their receipt (to the extent of the cash or Cash Equivalents received); and
(c) any stock or assets of the kind referred , shall be deemed to in clauses (b) and (d) of the next paragraph be cash for purposes of this Section 4.10provision. Within 365 270 days after the Company's or any Restricted Subsidiary's receipt of any the Net Proceeds from an of any Asset Sale, the Company or the such Restricted Subsidiary, as the case may be, may apply such Net Proceeds, at its option:
, may apply (aor in the case of clause (ii) or (iii) below, enter into a binding, definitive agreement within such time period to apply) the Net Proceeds from such Asset Sale (i) to prepaypermanently reduce Obligations under the Senior Credit Facility (and to correspondingly reduce commitments with respect thereto) or other Senior Debt or Pari Passu Indebtedness, repay, purchase, repurchase or redeem any secured Indebtedness of the Company or any Restricted Subsidiary of the Company;
(bii) to acquire the acquisition of a controlling interest in another business any one or all more businesses, to the making of a capital expenditure (including the construction or substantially all improvement of properties and capital assets) or the assets or operating line acquisition of another businesslong-term assets, in each case case, that is engaged in or that is used or useful in a Permitted Business;
Principal Business and/or (ciii) to make capital expenditures; or
(d) to acquire other non-current an investment in properties or assets to be used in a Permitted Businessthat replace the properties and assets that are the subject of such Asset Sale. Pending the final application of any such Net Proceeds, the Company or such Restricted Subsidiary may temporarily reduce Indebtedness under any Credit Facility a revolving credit facility, if any, or otherwise expend or invest such Net Proceeds in any manner that is not prohibited by this IndentureCash Equivalents. Any Net Proceeds from the Asset Sales described in this paragraph Sale that are not applied or invested as provided and within the time period set forth in the first sentence of this paragraph of this Section 4.10 shall be deemed to constitute “"Excess Asset Sale Proceeds.” When the aggregate amount of Excess Asset Sale Proceeds exceeds $10.0 million, the Company will be required under this Indenture to make an offer to the Holders of Notes issued thereunder and the holders of any other Senior Indebtedness that is subject to requirements with respect to the application of net proceeds from asset sales that are substantially similar to those contained in this Indenture (an “Asset Sale Offer”) to purchase on a pro rata basis (with the Excess Asset Sale Proceeds prorated between the Holders of the Notes and such holders of such other Senior Indebtedness based upon outstanding aggregate principal amounts) the maximum principal amount of the Notes and such other Senior Indebtedness that may be purchased or prepaid, as applicable, out of the prorated Excess Asset Sale 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. To the extent that the aggregate principal amount of Notes and other Senior Indebtedness tendered (and electing to be redeemed or repaid, as applicable) pursuant to an Asset Sale Offer is less than the Excess Asset Sale Proceeds, the Company and its Restricted Subsidiaries may use any remaining Excess Asset Sale Proceeds for general corporate purposes and any other purpose not prohibited by this Indenture. Upon completion of the offer to purchase, the amount of Excess Asset Sale Proceeds shall 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 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, 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 the Company’s compliance with such securities laws or regulations."
Appears in 1 contract
Samples: Indenture (Metal Management Inc)
Asset Sales. (a) The Company will not, and will not permit any of its Restricted Subsidiaries to, consummate an make any Asset Sale (except with respect to an Event of Loss) unless:
(1i) the Company (or the Restricted Subsidiary, as the case may be, ) receives consideration at the time of the such Asset Sale at least equal to the Fair Market Value (measured as of the date of the definitive agreement with respect to such Asset Sale) of the assets or Equity Interests issued or sold or otherwise disposed of; and
(2ii) at least 75% of the consideration therefor received in by the Company or such Asset Sale Restricted Subsidiary is in the form of cash or Cash Equivalents; provided that any of the following items shall be deemed to be cash and Cash Equivalents for the purposes of this clause (2):amount of:
(a1) the assumption of any liabilities (as shown on the Company’s or the such Restricted Subsidiary’s most recent balance sheet) of the Company or any Restricted Subsidiary of the Company (other than contingent liabilities and liabilities that are by their terms subordinated to the Notes issued under this Indenture or any Subsidiary GuaranteeGuarantee thereof) that are assumed by the transferee of any such assets pursuant to a customary novation agreement that releases releasing the Company or the such Restricted Subsidiary from further liability;; and
(b2) any securities, notes or other obligations 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 the such Restricted Subsidiary into cash or Cash Equivalents within 180 days following their receipt (to the extent of the cash or Cash Equivalents receivedreceived in that conversion); and, will be deemed to be cash for purposes of this Section 5.10.
(c) any stock or assets of the kind referred to in clauses (b) and (d) of the next paragraph of this Section 4.10. Within 365 360 days after the receipt of any Net Proceeds from an Asset SaleSale by the Company or a Restricted Subsidiary, the Company or the such Restricted Subsidiary, as the case may be, Subsidiary may apply such Net Proceeds, Proceeds at its option:
(ai) with respect to prepayAsset Sales of assets of a Restricted Subsidiary that is not a Guarantor, repay, purchase, repurchase or redeem any secured to permanently reduce Indebtedness of a Restricted Subsidiary that is not a Guarantor (and to correspondingly reduce commitments with respect thereto), other than Indebtedness owed to the Company or any Restricted Subsidiary of the Company;another Subsidiary; or
(bii) to acquire the making of a Capital Expenditure or the acquisition of a controlling interest in another business or all or substantially all of the assets or operating line of another businessother assets, in each case engaged case, that are used or useful in a Permitted Business;Similar Business or that replace the assets that are the subject of such Asset Sale.
(c) to make capital expenditures; or
(d) to acquire other non-current assets to be used in a Permitted Business. Pending the final application of any such Net Proceeds, the Company or a Restricted Subsidiary may temporarily reduce Indebtedness under any the Revolving Credit Facility or otherwise expend or invest such Net Proceeds in any manner that is not prohibited by this Indenture. .
(d) Any Net Proceeds from Asset Sales described in this paragraph that are not applied or invested (by election or as a result of the passage of time) as provided in the first sentence of this paragraph of this Section 4.10 subsection (b) above shall be deemed to constitute “Excess Asset Sale Proceeds.” When the aggregate amount of Excess Asset Sale Proceeds exceeds $10.0 5.0 million, the Company will be required under this Indenture to Issuers shall make an offer Asset Sale Offer to the Holders all holders of Notes issued thereunder and the holders of any other Senior Indebtedness that is subject to requirements with respect to the application of net proceeds from asset sales that are substantially similar to those contained in this Indenture (an “Asset Sale Offer”) to purchase on a pro rata basis (with the Excess Asset Sale Proceeds prorated between the Holders of the Notes and such holders of such other Senior Indebtedness based upon outstanding aggregate principal amounts) the maximum principal amount of Notes and, to the Notes and such other Senior Indebtedness extent required by the terms of the Revolving Credit Facility, to repay the maximum amount of loans under the Revolving Credit Facility, in each case, that may be purchased or prepaid, as applicable, repaid out of the prorated Excess Proceeds. The offer price for such Asset Sale Proceeds, at Offer shall be an offer price amount in cash in an amount equal to 100% of the principal amount thereof thereof, plus accrued and unpaid interest thereon and Additional Interest, if any, to the date of purchase, in accordance with the procedures set forth in this Indenture. To the extent that the aggregate principal amount of Notes tendered and other Senior Indebtedness tendered (and electing loans to be redeemed or repaid, as applicable) repaid under the Revolving Credit Facility pursuant to an Asset Sale Offer is less than the Excess Asset Sale Proceeds, the Company and its Restricted Subsidiaries may use any remaining Excess Asset Sale Proceeds for general corporate purposes and any other 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 available to be applied to their repurchase, the Trustee shall select the Notes to be purchased on a pro rata basis based upon the principal balance of Notes surrendered, subject to the Applicable Procedures. Upon completion of the such offer to purchase, the amount of Excess Asset Sale Proceeds shall be reset at zero. The Company will comply shall comply, to the extent applicable, with the requirements of Section 14(e) of, and Rule 14e-1 under under, the Exchange Act and any other securities laws and regulations thereunder to the extent such laws and regulations are applicable in connection with the repurchase of the Notes as a result of an Asset Sale Offer. To the extent that the provisions of any securities laws or regulations conflict with the provisions of this Indenture (including Section 4.103.09), the Company will shall comply with the applicable securities laws and regulations and will shall not be deemed to have breached its obligations under this Section 4.10 Indenture by virtue of the Company’s its compliance with such securities laws or regulations.
Appears in 1 contract
Asset Sales. (a) The Company will shall not, and will shall not permit any of its Restricted Subsidiaries to, consummate an Asset Sale unless:
unless (1i) the Company (or the Restricted Subsidiary, as the case may be, ) receives consideration at the time of the such Asset Sale at least equal to the Fair Market Value fair value (measured as evidenced by a resolution of the date Board of Directors set forth in an Officers' Certificate delivered to the definitive agreement with respect to such Asset SaleTrustee) of the assets or Equity Interests issued or sold or otherwise disposed of; and
of and (2ii) at least 75% of the consideration therefor received in by the Company or such Asset Sale Restricted Subsidiary is in the form of cash or Cash Equivalentscash; provided that any the amount of the following items shall be deemed to be cash and Cash Equivalents for the purposes of this clause (2):
(ax) the assumption of any liabilities (as shown on the Company’s 's or the such Restricted Subsidiary’s 's most recent balance sheet) sheet or in notes thereto), of the Company or any Restricted Subsidiary of the Company (other than liabilities that are by their terms subordinated to the Notes issued under this Indenture or any Subsidiary Guaranteeguarantee thereof) that are assumed by the transferee of any such assets pursuant to a customary novation agreement that releases the Company or the Restricted Subsidiary from further liability;
and (by) any securities, notes or other obligations received by the Company or any such Restricted Subsidiary from such transferee that are contemporaneously (subject to ordinary settlement periods) converted by the Company or the such Restricted Subsidiary into cash or Cash Equivalents within 180 days following their receipt (to the extent of the cash or Cash Equivalents received), shall be deemed to be cash for purposes of this provision.
(b) Notwithstanding the foregoing, the Company and its Restricted Subsidiaries may engage in Asset Swaps (which shall not be deemed to be Asset Sales for purposes of this Section 4.10); andprovided that, immediately after giving effect to such Asset Swap, the Company would be permitted to incur at least $1.00 of additional Indebtedness pursuant to the Indebtedness to Adjusted Operating Cash Flow Ratio set forth in Section 4.09(a) hereof.
(c) any stock or assets of the kind referred to in clauses (b) and (d) of the next paragraph of this Section 4.10. Within 365 180 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 Net ProceedsSubsidiary may, at its option:
, apply such Net Proceeds (ai) to prepaypermanently reduce Indebtedness outstanding pursuant to any Bank Facility (and to permanently reduce the commitments thereunder by a corresponding amount), repay, purchase, repurchase or redeem any secured (ii) to permanently reduce Indebtedness of any of the Company's Restricted Subsidiaries or (iii) to the acquisition by the Company or any of its Restricted Subsidiaries of another business, the making of a capital expenditure or the acquisition of other long-term assets, in each case, in a Permitted Business; provided, however, that if the Company or any Restricted Subsidiary enters into a legally binding agreement with an entity that is not an Affiliate of the Company;
Company to reinvest such Net Proceeds in accordance with this clause (biii) within 180 days after the receipt thereof, the provisions of this Section 4.10 will be satisfied so long as such binding agreement is consummated within one year after the receipt of such Net Proceeds. If any such legally binding agreement to acquire a controlling interest reinvest such Net Proceeds is terminated, then the Company may, within 360 days of such Asset Sale, apply such Net Proceeds as provided in another business clauses (i), (ii) or all or substantially all of (iii) above (without regard to the assets or operating line of another business, proviso contained in each case engaged in a Permitted Business;
clause (ciii) to make capital expenditures; or
(d) to acquire other non-current assets to be used in a Permitted Businessabove). Pending the final application of any such Net Proceeds, the Company or the applicable Restricted Subsidiary may temporarily reduce Indebtedness under pursuant to any Credit Bank Facility or otherwise expend or invest such Net Proceeds in any manner that is not prohibited by this Indenture. A reduction of Indebtedness pursuant to any Bank Facility is not "permanent" for purposes of clause (i) of this Section 4.10(c) if an amount equal to the amount of such reduction is reborrowed and used to make an acquisition described in clause (iii) of this Section 4.10(c) within the time period specified in this Section 4.10. Any Net Proceeds from Asset Sales described in this paragraph that are not applied or invested as provided in the first sentence of this paragraph of this Section 4.10 shall 4.10(c) will be deemed to constitute “"Excess Asset Sale Proceeds.” When "
(d) Within five days of each date on which the aggregate amount of Excess Asset Sale Proceeds exceeds $10.0 25.0 million, the Company will be required under this Indenture to make an offer to all Holders of Notes and the Holders of Notes issued thereunder and the holders of any other Senior Indebtedness that is subject to requirements with respect Pari Passu Debt, to the application of net proceeds from asset sales that are substantially similar to those contained in this Indenture extent required by the terms thereof (an “"Asset Sale Offer”") to purchase on a pro rata basis (with the Excess Asset Sale Proceeds prorated between the Holders of the Notes and such holders of such other Senior Indebtedness based upon outstanding aggregate principal amounts) the maximum principal amount of the Notes and such other Senior Indebtedness Pari Passu Debt that may be purchased or prepaid, as applicable, out of the prorated Excess Asset Sale Proceeds, at an offer price in cash in an amount equal to 100% of the principal amount thereof plus plus, in each case, accrued and unpaid interest thereon and Liquidated Damages, if any, to the date of purchase, in accordance with the procedures set forth in Section 3.09 or the agreements governing Pari Passu Debt, as applicable; provided, however, that the Company may only purchase Pari Passu Debt in an Asset Sale Offer that was issued pursuant to an indenture having a provision substantially similar to this Indenture. Section 4.10.
(e) To the extent that the aggregate principal amount of Notes and other Senior Indebtedness Pari Passu Debt tendered (and electing to be redeemed or repaid, as applicable) pursuant to an Asset Sale Offer is less than the Excess Asset Sale Proceeds, the Company and its Restricted Subsidiaries may use any remaining Excess Asset Sale Proceeds for general corporate purposes purposes.
(f) If the aggregate principal amount of Notes and any other purpose not prohibited by this Indenture. Pari Passu Debt surrendered exceeds the amount of Excess Proceeds, the Trustee shall select the Notes and Pari Passu Debt to be purchased on a pro rata basis, based upon the principal amount thereof surrendered in such Asset Sale Offer.
(g) Upon completion of the such offer to purchase, the amount of Excess Asset Sale Proceeds shall 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 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, 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 the Company’s compliance with such securities laws or regulations.
Appears in 1 contract
Asset Sales. (a) The Company will shall not, and will shall not permit any of its Restricted Subsidiaries to, consummate an Asset Sale Sale, unless:
(1i) the Company or the any such Restricted Subsidiary, as the case may be, receives consideration at the time of the such Asset Sale at least equal to the Fair Market Value fair market value (measured as of determined in good faith by the date of the definitive agreement with respect to such Asset SaleCompany) of the assets or Equity Interests issued or sold or otherwise disposed of; and
(2ii) except in the case of a Permitted Asset Swap or the disposition of any property the disposition of which is necessary for the Company to qualify, or to maintain its qualification, as, a real estate investment trust for U.S. federal income tax purposes, in each case, in the Company’s good faith determination, at least 75% of the consideration therefor received in by the Company or any such Asset Sale Restricted Subsidiary, as the case may be, is in the form of cash or Cash Equivalents; provided that any of the following items shall be deemed to be cash and Cash Equivalents for the purposes of this clause (2):amount of:
(aA) the assumption of any liabilities (as shown on the Company’s or the Restricted Subsidiary’s most recent consolidated balance sheet or in the footnotes thereto, or if incurred or accrued subsequent to the date of such balance sheet, such liabilities that would have been 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 such Restricted Subsidiary of the Company (other than Contingent Obligations and liabilities that are by their terms subordinated to the Notes issued under this Indenture or any Subsidiary Guarantee) that are assumed by the transferee of any such assets pursuant (or are otherwise extinguished by the transferee in connection with the transactions relating to a customary novation agreement that releases such Asset Sale) or are acquired and extinguished by the Company or the such Restricted Subsidiary from and, in each case, for which the Company, and all such Restricted Subsidiaries shall have no further liability;obligation with respect thereto,
(bB) any securities, notes or other obligations or securities received by the Company or any such Restricted Subsidiary from such transferee that are converted by the Company or the such Restricted Subsidiary into cash or Cash Equivalents, or by their terms are required to be satisfied for cash or Cash Equivalents within 180 days following their receipt (to the extent of the cash or Cash Equivalents received); , in each case, within 180 days following the closing of such Asset Sale,
(C) 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 in good faith by the Company), taken together with all other Designated Non-cash Consideration received pursuant to this clause (c) that is at that time outstanding (but, to the extent that any such Designated Non-cash Consideration is sold or otherwise liquidated for cash, minus the lesser of (a) the amount of the cash received (less the cost of disposition, if any) and (b) the initial amount of such Designated Non-cash Consideration) not to exceed the greater of (x) $200.0 million and (y) 7.50% of Total Assets, with the fair market value (as determined in good faith by the Company) of each item of Designated Non-cash Consideration being measured at the time received and without giving effect to subsequent changes in value, and
(cD) any stock Capital Stock or assets of the kind referred to described in clauses (bA) and (dD) of the next paragraph Section 4.10(b)(ii) hereof shall be deemed to be cash for purposes of this Section 4.10. provision and for no other purpose.
(b) Within 365 450 days after the receipt of any Net Proceeds from an of any Asset Sale, the Company or the such Restricted Subsidiary, at its option, may apply an amount equal to the Net Proceeds from such Asset Sale,
(i) to permanently reduce:
(A) Obligations under the Notes or any other Pari Passu Indebtedness (including obligations under the Senior Credit Facilities and the Existing Secured Notes) of an Issuer or a Guarantor (and to correspondingly reduce commitments with respect thereto, if applicable); provided that if such Net Proceeds are applied to other Pari Passu Indebtedness then the Issuers shall (i) equally and ratably reduce Obligations under the Notes (x) as provided under Section 3.07 or (y) through open market purchases or (ii) make an offer (in accordance with Section 4.10(b) hereof) to all Holders of Notes to purchase their Notes at 100% of the principal amount thereof, plus the amount of accrued but unpaid interest, if any, on the principal amount of Notes that would otherwise be redeemed under clause (i), or
(B) Indebtedness of a Non-Guarantor Subsidiary, other than Indebtedness owed to the Company or another Restricted Subsidiary; 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 another of its Restricted Subsidiaries, as the case may be, may apply owning an amount of the Capital Stock of such business such that it constitutes a Restricted Subsidiary, (B) acquire properties (other than working capital or Capital Stock), (C) make capital expenditures or (D) acquire other assets (other than working capital or Capital Stock) that, in the case of each of (A), (B), (C) and (D) are either (x) used or useful in a Similar Business or (y) replace the businesses, properties and/or assets that are the subject of such Asset Sale (provided that such assets or Capital Stock shall be pledged as Collateral under the Security Documents and in accordance with this Indenture substantially simultaneously with such Investment or acquisition to the extent the assets disposed of constituted Collateral); provided that, in the case of clause (ii) 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 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”); provided further that if any Acceptable Commitment is later cancelled or terminated for any reason before such Net Proceeds are applied, then such Net Proceeds shall constitute Excess Proceeds, at its option:; or
(aiii) to prepay, repay, purchase, repurchase or redeem any secured Indebtedness combination of the Company or any Restricted Subsidiary of the Company;
(b) to acquire a controlling interest in another business or all or substantially all of the assets or operating line of another business, in each case engaged in a Permitted Business;foregoing.
(c) to make capital expenditures; or
(d) to acquire other non-current assets to be used in a Permitted Business. Pending the final application of any such Net Proceeds, the Company may temporarily reduce Indebtedness under any Credit Facility or otherwise expend or invest such Net Proceeds in any manner that is not prohibited by this Indenture. Any Net Proceeds from an Asset Sales described in this paragraph Sale that are not invested or applied or invested as provided and within the time period set forth in the first sentence of this paragraph of this Section 4.10 shall Section 4.10(a)(i) will be deemed to constitute “Excess Asset Sale Proceeds.” When the aggregate amount of Excess Asset Sale Proceeds exceeds $10.0 75.0 million, the Company will be required under this Indenture to or any Restricted Subsidiary shall make an offer to the all Holders of Notes issued thereunder and and, if required by the terms of any Pari Passu Indebtedness, to the holders of any other Senior such Pari Passu Indebtedness that is subject to requirements with respect to the application of net proceeds from asset sales that are substantially similar to those contained in this Indenture (an “Asset Sale Offer”) to purchase on a pro rata basis (with the Excess Asset Sale Proceeds prorated between the Holders of the Notes and such holders of such other Senior Indebtedness based upon outstanding aggregate principal amounts) the maximum aggregate principal amount of the Notes in minimum denominations of $2,000 and integral multiples of $1,000 in excess thereof and such other Senior Pari Passu Indebtedness that may be purchased or prepaid, as applicable, out of the prorated Excess Asset Sale Proceeds, Proceeds at an offer price in cash in an amount equal to 100% of the principal amount thereof thereof, plus accrued and unpaid interest thereon interest, if any (or, in respect of such Pari Passu Indebtedness, such lesser price, if any, as may be provided for or permitted by the terms of such Pari Passu Indebtedness), to the date fixed for the closing of purchasesuch offer, in accordance with the procedures set forth in this Indenture. .
(d) The Issuers shall commence an Asset Sale Offer with respect to Excess Proceeds within fifteen (15) Business Days after the date that Excess Proceeds exceed $75.0 million by electronically delivering or mailing the notice required pursuant to the terms of this Indenture, with a copy to the Trustee.
(e) To the extent that the aggregate principal amount of Notes and other Senior such Pari Passu Indebtedness tendered (and electing to be redeemed or repaid, as applicable) pursuant to an Asset Sale Offer is less than the Excess Asset Sale Proceeds, the Company and its Restricted Subsidiaries Issuers may use any remaining Excess Asset Sale Proceeds for general corporate purposes purposes, subject to clause (e) of this Section 4.10 and any the other purpose not prohibited by covenants contained in this Indenture. If the aggregate amount (determined as above) of Notes and the Pari Passu Indebtedness surrendered in an Asset Sale Offer exceeds the amount of Excess Proceeds, the Trustee shall select the Notes and the Issuers or the agent for such Pari Passu Indebtedness shall select such Pari Passu Indebtedness to be purchased (i) if the Notes or such Pari Passu Indebtedness are listed on any national securities exchange, in compliance with the requirements of the principal national securities exchange on which the Notes or such Pari Passu Indebtedness, as applicable, are listed, (ii) on a pro rata basis based on the amount (determined as set forth above) of the Notes and such Pari Passu Indebtedness tendered or (iii) by lot or such similar method in accordance with the procedures of DTC; provided that no Notes of $2,000 or less shall be repurchased in part. Upon completion of the offer to purchaseany such Asset Sale Offer, the amount of Excess Asset Sale Proceeds shall be reset at zero. .
(f) Pending the final application of any Net Proceeds pursuant to this covenant, 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.
(g) The Company will Issuers shall comply with the requirements of Rule 14e-1 under the Exchange Act and any other securities laws and regulations thereunder to the extent such laws and or regulations are applicable in connection with the repurchase of 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 Section 4.10Indenture, the Company will Issuers shall comply with the applicable securities laws and regulations and will shall not be deemed to have breached its obligations under described in this Section 4.10 Indenture by virtue of the Company’s compliance with such securities laws or regulationsthereof.
Appears in 1 contract
Samples: Indenture (Uniti Group Inc.)
Asset Sales. (a) The Company will shall not, and will shall not permit any of its Restricted Subsidiaries Subsidiary to, consummate an any Asset Sale unlessunless the following conditions are met:
(1) the Company (or the Restricted Subsidiary, as the case may be, ) receives consideration at the time of the such Asset Sale at least equal to the Fair Market Value (measured as of determined in good faith by the date of the definitive agreement with respect to such Asset SaleCompany) of the assets or Equity Interests issued or sold or otherwise disposed of; and
(2) at least 75% of the consideration therefor received in by the Company or such Asset Sale Restricted Subsidiary is in the form of cash cash, Cash Equivalents or Cash Equivalents; Replacement Assets or a combination thereof, provided that any that, for purposes of this provision, each of the following items shall be deemed to be cash and Cash Equivalents for the purposes of this clause (2):cash:
(aA) the assumption of any liabilities (as shown on the Company’s or the such Restricted Subsidiary’s most recent balance sheet) of the Company or any Restricted Subsidiary of the Company (other than contingent liabilities and liabilities that are by their terms subordinated to the Notes issued under this Indenture or any Subsidiary GuaranteeGuarantee and liabilities that are owed to the Company or any Affiliate of the Company) that are assumed by the transferee of any such assets by operation of law or pursuant to a customary written novation agreement or an indemnification arrangement that releases or covers the Company or the such Restricted Subsidiary from further liability;
(bB) any securities, notes securities or other obligations (other than promissory notes) received by the Company or any such Restricted Subsidiary from such transferee that are within 180 days (subject to ordinary settlement periods) converted by the Company or the such Restricted Subsidiary into cash or Cash Equivalents within 180 days following their receipt (to the extent of the cash or Cash Equivalents receivedreceived in that conversion); and
(cC) any stock Designated Noncash Consideration received by the Company or assets any of its Restricted Subsidiaries in the kind referred to in clauses Asset Sale.
(b) and (d) of the next paragraph of this Section 4.10. Within 365 days after the receipt of any Net Proceeds from an Asset Sale, the Company or the Restricted Subsidiary, as the case may be, may apply an amount equal to such Net Proceeds, Proceeds at its option:
(a1) to prepay, repay, purchase, repay or repurchase or redeem any secured (1) Indebtedness of a Restricted Subsidiary that is not a Subsidiary Guarantor, or (2) Senior Debt and, if in the case of (1) or (2), (A) such Indebtedness or Senior Debt being repaid is revolving credit Indebtedness and (B) at the time of such Asset Sale and at the time of such repayment, the Company is not permitted to incur at least $1.00 of additional Indebtedness pursuant to the Fixed Charge Coverage Ratio test set forth in the Section 4.03(a), correspondingly reduce commitments with respect thereto or (3) the Notes and any Restricted Subsidiary of indebtedness that is pari passu with the Company;Notes in the manner applicable to an offer (an “Asset Sale Offer”) as set forth in Section 4.04(c); or
(b2) to acquire invest in (or enter into a controlling interest legally binding agreement to invest in) or purchase Replacement Assets or to make a capital expenditure in another business or all that is used or substantially all of the assets or operating line of another business, in each case engaged useful in a Permitted Business;
; provided, that if any such legally binding agreement to invest such Net Proceeds is terminated, then the Company may, within 180 days of such termination or within 365 days after the receipt of any Net Proceeds from an Asset Sale, whichever is later, apply such Net Proceeds as provided in this Section 4.04(b); provided, further, that, in the case of this Section 4.04(b), a binding commitment to invest in Replacement Assets shall be treated as a permitted application of the Net Proceeds from the date of such commitment, so long as (cx) such investment is consummated within 180 days of the end of the 365 day period referred to make capital expenditures; or
in this Section 4.04(b), and (dy) to acquire other non-current assets if such acquisition is not consummated within the period set forth in subclause (x) hereof or such binding commitment is terminated, the Net Proceeds not so applied shall be deemed to be used in a Permitted BusinessExcess Proceeds. Pending the final application of any such Net Proceeds, the Company may temporarily reduce Indebtedness under revolving credit borrowings (but in no event would Holders of the Notes have any Credit Facility recourse to the agent or lenders receiving such funds) or otherwise expend or invest such Net Proceeds in any manner that is not prohibited by this the Indenture. .
(c) Any Net Proceeds from Asset Sales described in this paragraph that are not applied or invested as provided in the first sentence of this paragraph of this Section 4.10 4.04(b) shall be deemed to constitute “Excess Asset Sale Proceeds.” When Within 30 days after the aggregate amount of Excess Asset Sale Proceeds exceeds $10.0 20.0 million, the Company will be required under shall make an Asset Sale Offer to all Holders of Notes, and all holders of other Indebtedness that is pari passu with the Notes or any Subsidiary Guarantee containing provisions similar to those set forth in this Indenture Section 4.04(c) with respect to make making an offer to purchase with the Holders proceeds of Notes issued thereunder and the holders of any other Senior Indebtedness that is subject to requirements with respect to the application of net proceeds from asset sales that are substantially similar to those contained in this Indenture (an “Asset Sale Offer”) Sales, to purchase on a pro rata basis (with the Excess Asset Sale Proceeds prorated between the Holders of the Notes and such holders of such other Senior Indebtedness based upon outstanding aggregate principal amounts) the maximum principal amount of the Notes and such other Senior pari passu Indebtedness that may be purchased or prepaid, as applicable, out of the prorated Excess Proceeds. Each Asset Sale Proceeds, at an Offer shall be mailed to each Holder and describe the transaction or transactions which require such Asset Sale Offer. The offer price in cash in an amount any Asset Sale Offer shall be equal to 100% of the principal amount thereof plus accrued and unpaid interest thereon and additional interest, if any, to the date of purchase, and shall be payable in accordance with cash. If any Excess Proceeds remain after consummation of an Asset Sale Offer, the procedures set forth in this Company may use such Excess Proceeds for any purpose not otherwise prohibited by the Indenture. To the extent that If the aggregate principal amount of Notes and such other Senior pari passu Indebtedness tendered (and electing to be redeemed or repaid, as applicable) pursuant to an into such Asset Sale Offer is less than exceeds the amount of Excess Asset Sale Proceeds, the Company Trustee shall select the Notes and its Restricted Subsidiaries may use any remaining Excess Asset Sale Proceeds for general corporate purposes such other pari passu Indebtedness to be purchased on a pro rata basis based on the principal amount of Notes and any such other purpose not prohibited by this Indenturepari passu Indebtedness tendered. Upon completion of the offer to purchaseeach Asset Sale Offer, the amount of Excess Asset Sale Proceeds shall be reset at zero. .
(d) The Company will shall comply with the requirements of Rule 14e-1 under the Exchange Act and any other securities laws and regulations thereunder to the extent such laws and regulations are applicable in connection with the purchase of the Notes pursuant to an Asset Sale OfferOffer pursuant to this Section 4.04. To the extent that the provisions of any securities laws or regulations conflict with the Asset Sale provisions of this Section 4.10hereunder, the Company will shall comply with the applicable securities laws and regulations and will shall not be deemed to have breached its obligations under this Section 4.10 4.04 by virtue of the Company’s compliance with such securities laws or regulationsconflict.
Appears in 1 contract
Samples: First Supplemental Indenture (Perry Ellis International Inc)
Asset Sales. The Company will (a) OPTI shall not, and will shall not permit any of its Restricted Subsidiaries to, consummate an Asset Sale unless:
(1) the Company OPTI (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 (measured as of the date of the definitive agreement with respect to such Asset Sale) of the assets or Equity Interests issued or sold or otherwise disposed of;
(2) the Fair Market Value is set forth in an Officers’ Certificate delivered to the Trustee; and
(23) at least 75% of the consideration received in such the Asset Sale by OPTI or such Restricted Subsidiary is in the form of cash cash, Cash Equivalents or Cash Equivalents; provided that any Permitted Assets or a combination thereof. For purposes of this provision, each of the following items shall be deemed to be cash and Cash Equivalents for the purposes of this clause (2):cash:
(aA) the assumption of any liabilities (liabilities, as shown on the CompanyOPTI’s or the such Restricted Subsidiary’s most recent balance sheet) , of the Company OPTI or any Restricted Subsidiary of the Company (other than contingent liabilities, liabilities that are by their terms subordinated to the Notes issued under this Indenture or any Guarantee and liabilities to the extent owed to OPTI or any Restricted Subsidiary Guaranteeof OPTI) that are assumed by the transferee of any such assets pursuant to a customary novation agreement that releases the Company OPTI or the such Restricted Subsidiary from further liability;; and
(bB) any securities, notes Notes or other obligations received by the Company OPTI or any such Restricted Subsidiary from such transferee that within 90 days are converted by the Company OPTI or the such Restricted Subsidiary into cash or Cash Equivalents within 180 days following their receipt (cash, to the extent of the cash or Cash Equivalents received); andreceived in that conversion.
(c) any stock or assets of the kind referred to in clauses (b) and (d) of the next paragraph of this Section 4.10. Within 365 days after the receipt of any Net Proceeds from an Asset Sale, the Company OPTI or the applicable Restricted Subsidiary, as the case may be, Subsidiary may apply such those Net Proceeds, at its option:
(a1) to prepayrepay or prepay Indebtedness and other Obligations secured by such asset, repay, purchase, repurchase or redeem any secured Indebtedness of under any Credit Facility or other Priority Lien Debt, in each case, other than Indebtedness or other Obligations that are subordinated to the Company or any Restricted Subsidiary of the CompanyNotes;
(b2) to acquire a controlling interest in another business or all or substantially all of the assets of, or operating line a majority of the Voting Stock of, another business, in each case engaged in a Permitted Oil and Gas Business;
(c3) to make a capital expendituresexpenditure; or
(d4) to acquire other non-current assets Permitted Assets; provided that, in the case of clauses (2), (3) and (4) above, 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 shall be applied to be used in a Permitted Businesssatisfy such commitment within 120 days of such commitment and such commitment is not terminated or abandoned. Pending the final application of any such Net Proceeds, the Company OPTI may temporarily reduce Indebtedness under any Credit Facility revolving credit borrowings or otherwise expend or invest such the Net Proceeds in any manner that is not prohibited by this Indenture. .
(c) Any Net Proceeds from Asset Sales described in this paragraph that are not applied or invested as provided in the first sentence of this paragraph (b) of this Section 4.10 shall be deemed to constitute “Excess Asset Sale Proceeds.” ”. When the aggregate amount of Excess Asset Sale Proceeds exceeds $10.0 US$25.0 million, the Company will be required under this Indenture to OPTI shall make an offer to the Holders of Notes issued thereunder and the holders of any other Senior Indebtedness that is subject to requirements with respect to the application of net proceeds from asset sales that are substantially similar to those contained in this Indenture (an “Asset Sale Offer”) to purchase on a pro rata basis (all Holders and all holders of other Indebtedness that is pari passu with the Excess Asset Sale Proceeds prorated between Notes, including Existing Notes, containing provisions similar to those set forth in this Indenture with respect to offers to purchase or redeem with the Holders proceeds of the Notes and such holders sales of such other Senior Indebtedness based upon outstanding aggregate principal amounts) assets to purchase the maximum principal amount of the Notes and such other Senior pari passu Indebtedness that may be purchased or prepaid, as applicable, out of the prorated Excess Asset Sale Proceeds, at an . The offer price in cash in an amount any Asset Sale Offer shall be equal to 100% of the principal amount thereof plus accrued and unpaid interest thereon and Additional Interest, if any, to the date of purchase, and shall be payable in accordance with the procedures set forth in cash. If any Excess Proceeds remain after consummation of an Asset Sale Offer, OPTI may use those Excess Proceeds for any purpose not otherwise prohibited by this Indenture. To the extent that If the aggregate principal amount of Notes and other Senior pari passu Indebtedness tendered into such Asset Sale Offer exceeds the amount of Excess Proceeds, the Trustee shall, subject to Section 4.10(f) hereof, select the Notes and such other pari passu Indebtedness surrendered to be purchased on a pro rata basis (with such adjustments as may be deemed appropriate by the Trustee so that only Notes in denominations of US$1,000, or integral multiples thereof, shall be purchased). Upon completion of each Asset Sale Offer, the amount of Excess Proceeds shall be reset at zero.
(d) The Asset Sale Offer shall remain open for a period of at least 20 Business Days and not more than 30 Business Days (except to the extent that a longer period is required by applicable law) following its commencement (the “Offer Period”).
(e) Within three Business Days after it becomes obligated to make the Asset Sale Offer, OPTI shall commence the Asset Sale Offer by sending a notice by first class mail to each Holder, at such Holder’s registered address, with a copy to the Trustee. The notice shall (i) contain all instructions and materials necessary to enable such Holders to tender Notes pursuant to the Asset Sale Offer and (ii) be accompanied by such information regarding OPTI and its Restricted Subsidiaries as OPTI in good faith believes shall enable Holders to make an informed decision with respect to such Asset Sale Offer. Without limiting the foregoing, the notice, which shall govern the terms of the Asset Sale Offer, shall 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 shall remain open;
(2) the amount of Excess Proceeds, the Offer Amount (as defined below), the purchase price and the Purchase Date (as defined below);
(3) that any Note (or portion thereof) not tendered or accepted for payment shall continue to accrue interest;
(4) that, unless OPTI defaults in making such payment, any Note accepted for payment pursuant to the Asset Sale Offer shall cease to accrue interest after the Purchase Date;
(5) that a Holder electing to be redeemed or repaid, as applicable) have a Note purchased pursuant to an Asset Sale Offer is less may elect to have Notes purchased in integral multiples of US$1,000 only;
(6) that a Holder 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 the Note by book-entry transfer, to OPTI, a Depositary, if appointed by OPTI, or a Paying Agent at the address specified in the notice at least three days before the Purchase Date;
(7) that a Holder shall be entitled to withdraw his election if OPTI, the Depositary or the Paying Agent, as the case may be, receives, not later than the expiration of the Offer Period, a facsimile transmission or letter setting forth the name of the Holder, the principal amount of the Note the Holder delivered for purchase and a statement that such 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 exceeds the Excess Asset Sale Proceeds, the Company Trustee shall, subject to Section 4.10(f) hereof, select the Notes to be purchased on a pro rata basis based on the principal amount of Notes and its Restricted Subsidiaries such other pari passu Indebtedness surrendered (with such adjustments as may use any remaining Excess be deemed appropriate by the Trustee so that only Notes in denominations of US$1,000, or integral multiples thereof, shall be purchased); and
(9) that Holders whose Notes were purchased only in part shall be issued new Notes equal in principal amount to the unpurchased portion of the Notes surrendered (or transferred by book-entry transfer).
(f) No Note in principal amount of US$1,000 or less can be purchased in part; except that if all of the Notes of a Holder are to be purchased pursuant to an Asset Sale Proceeds for general corporate purposes and any other purpose Offer, the entire outstanding amount of Notes held by such Holder, even if not prohibited by this Indenture. Upon completion a multiple of US$1,000, shall be purchased.
(g) One Business Day prior to the end of the offer Offer Period (the last day of the Offer Period being herein called the “Purchase Date”), OPTI shall deposit with the Trustee or with the Paying Agent money sufficient to pay the purchase price of all Notes to be purchased on that Purchase Date, including accrued and unpaid interest (including Additional Interest, if any) on such Notes (the amount required to purchase such Notes and other pari passu Indebtedness being referred to herein as the “Offer Amount”). The Trustee or the Paying Agent shall promptly return to OPTI any money deposited with the Trustee or the Paying Agent by OPTI in excess of the amounts necessary to pay the purchase price of, and accrued and unpaid interest (including Additional Interest, if any) on, all Notes to be purchased.
(h) On a date that is no later than three Business Days after the Purchase Date, OPTI shall, to the extent lawful:
(1) accept for payment, on a pro rata basis to the extent necessary, all Notes (or any portions thereof) and other pari passu Indebtedness, in each case to the extent tendered pursuant to the Asset Sale Offer and required to be purchased by OPTI pursuant to this Section 4.10; and
(2) deliver or cause to be delivered to the Trustee the Notes so accepted together with an Officers’ Certificate stating the aggregate principal amount of Notes or portions thereof being purchased by OPTI and that such Notes were accepted for payment by OPTI in accordance with the terms of this Section 4.10.
(i) OPTI, the Depositary or the Paying Agent, as the case may be, shall promptly (but in any case not later than three Business 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 OPTI for purchase, and OPTI shall promptly issue a new Note, and the Trustee, upon written request from OPTI shall authenticate at the expense of OPTI and mail or deliver such new Note to such Holder, in a principal amount equal to any unpurchased portion of the Note surrendered; provided, however, that each such Note shall be in a principal amount of Excess US$1,000 or an integral multiple thereof. Any Note not so accepted shall be promptly mailed or delivered by or on behalf of OPTI to the Holder thereof. OPTI shall publicly announce the results of the Asset Sale Proceeds Offer on the Business Day following the Purchase Date.
(j) If an interest payment date is on or prior to the applicable Purchase Date, the accrued interest payable on such interest payment date shall be reset paid on such interest payment date to the Person in whose name the Note is registered at zero. The Company will the close of business on the relevant interest payment record date.
(k) For purposes of this Section 4.10, OPTI shall be required to comply with the requirements of Rule 14e-1 under the Exchange Act and any other securities laws and regulations thereunder to the extent such those laws and regulations are applicable in connection with 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, the Company will OPTI shall be required to comply with the applicable securities laws and regulations and will shall not be deemed to have breached its obligations under this Section 4.10 such provisions by virtue of the Company’s compliance with such securities laws or regulationsconflict.
Appears in 1 contract
Samples: Indenture (Opti Canada Inc)
Asset Sales. (a) The Company will not, and will not permit any of its Restricted Subsidiaries to, consummate an Asset Sale (including a Collateral Disposition) unless:
(1) the 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;
(2) 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 (measured as of the date of the definitive agreement with respect to such Asset Sale) of the assets or Equity Interests issued or sold or otherwise disposed of; and;
(23) at least 75% of the consideration received by the company or such restricted subsidiary from all asset sales since the issue date, in such Asset Sale the aggregate, is in the form of cash; and
(4) in the case of a Collateral Disposition, the Second Lien Agent is granted a perfected Lien (subject only to Permitted Collateral Liens) in all assets or property received by the Company or any Restricted Subsidiary as consideration therefor (or, with respect to cash, the portion of such cash or Cash Equivalents; that constitutes Net Proceeds) as additional Collateral under the Security Documents to secure the Second Lien Obligations, and, in the case of cash constituting Net Proceeds, such cash must be deposited into a segregated account under the control of the First Lien Agent and the Collateral Agent that includes only proceeds from the Collateral Disposition and interest earned thereon (a “Collateral Disposition Proceeds Account”), which proceeds shall be subject to release from the Collateral Disposition Proceeds Account for the uses described below in this covenant as provided that any for in the Security Documents. Except with respect to a Collateral Disposition, for purposes of this provision, each of the following items shall will be deemed to be cash and Cash Equivalents for the purposes of this clause (2):cash:
(a1) the assumption of any liabilities (liabilities, as shown on the Company’s or the such Restricted Subsidiary’s most recent balance sheet) , of the Company or any Restricted Subsidiary of the Company (other than contingent liabilities and liabilities that are by their terms subordinated to Notes issued under this Indenture the notes or any Subsidiary Guarantee) that are assumed by the transferee of any such assets pursuant to a customary novation agreement that releases the Company or the such Restricted Subsidiary from further liability;; and
(b2) any securities, notes or other obligations received by the Company or any such Restricted Subsidiary from such transferee that are converted within 90 days by the Company or the such Restricted Subsidiary into cash or Cash Equivalents within 180 days following their receipt (cash, to the extent of the cash or Cash Equivalents received); andreceived in that conversion.
(c) any stock or assets of the kind referred to in clauses (b) and (d) of the next paragraph of this Section 4.10. Within 365 360 days after the receipt of any Net Proceeds from an Asset Sale, the Company or the any such Restricted Subsidiary, as the case may be, Subsidiary may apply such those Net Proceeds, Proceeds at its optionoption to any combination of the following:
(a1) to prepay, repay, purchaseredeem or repurchase Indebtedness constituting First Lien Claims under a Credit Facility and other pari passu Indebtedness secured by a Lien permitted under the Second Lien Notes Indenture; provided that if such Indebtedness is revolving credit Indebtedness, repurchase or redeem any secured Indebtedness of the Company or any Restricted Subsidiary of the Companyto correspondingly reduce commitments with respect thereto as specified in Section 4.09 hereof;
(b2) to acquire a controlling interest in another business or all or substantially all of the properties or assets of one or operating more other Persons primarily engaged in the Oil and Gas Business, and, for this purpose, a division or line of another business, in each case engaged in business of a Permitted BusinessPerson shall be treated as a separate Person so long as such properties and assets are acquired by the Company or a Restricted Subsidiary;
(c3) to acquire a majority of the Voting Stock of one or more other Persons primarily engaged in the Oil and Gas Business, if after giving effect to any such acquisition of Voting Stock, such Person is or becomes a Restricted Subsidiary;
(4) to make one or more capital expenditures; or
(d5) to acquire other nonlong-current term assets that are used or useful in the Oil and Gas Business; provided, that if the Net Proceeds are from a Collateral Disposition, the property, assets, Voting Stock or capital expenditures referred to in clauses (2), (3), (4) and (5) shall be used in of a Permitted Businesstype substantially similar to such items constituting Collateral. Pending the final application of any such Net ProceedsProceeds (other than Net Proceeds held in the Collateral Disposition Proceeds Account), the Company or any such Restricted Subsidiary may temporarily reduce Indebtedness under any Credit Facility revolving credit borrowings or otherwise expend or invest such the Net Proceeds in any manner that is not prohibited by this Indenture. .
(c) Any Net Proceeds from Asset Sales described in this paragraph that are not applied or invested as provided in the first sentence of this paragraph of this Section 4.10 shall be deemed to 4.10(b) hereof will constitute “Excess Asset Sale Proceeds.” When On the 361st day after the Asset Sale (or, at the Company’s option, any earlier date), if the aggregate amount of Excess Asset Sale Proceeds (including Net Proceeds held in the Collateral Disposition Proceeds Account) then exceeds $10.0 15.0 million, the Company will be required under this Indenture to make an offer Asset Sale Offer to the all Holders of Notes issued thereunder notes, and the all holders of any other Senior Indebtedness that is subject pari passu with the Notes containing provisions similar to requirements those set forth in this Indenture with respect to the application of net proceeds from asset sales that are substantially similar to those contained in this Indenture (an “Asset Sale Offer”) offers to purchase on a pro rata basis (or redeem with the Excess Asset Sale Proceeds prorated between the Holders proceeds of the Notes and such holders sales of such other Senior Indebtedness based upon outstanding aggregate principal amounts) assets, to purchase the maximum principal amount of the Notes and such other Senior pari passu Indebtedness that may be purchased or prepaid, as applicable, out of the prorated Excess Asset Sale Proceeds, at an . The offer price in cash in an amount any Asset Sale Offer will be equal to 100% of the principal amount thereof plus accrued and unpaid interest thereon interest, if any, to the date of purchasesettlement, 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 accordance with cash. If any Excess Proceeds remain after consummation of an Asset Sale Offer, the procedures set forth in Company may use those Excess Proceeds for any purpose not otherwise prohibited by this Indenture. To the extent that If the aggregate principal amount of Notes and other Senior Indebtedness ranking pari passu with the Notes tendered (and electing to be redeemed or repaid, as applicable) pursuant to an into such Asset Sale Offer is less than exceeds the amount of Excess Asset Sale Proceeds, the Company trustee will select the Notes and its Restricted Subsidiaries may use any remaining Excess Asset Sale Proceeds for general corporate purposes and any such other purpose not prohibited by this Indenturepari passu Indebtedness to be purchased on a pro rata basis. Upon completion of the offer to purchaseeach Asset Sale Offer, the amount of Excess Asset Sale Proceeds shall 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 an Asset Sale Offer. To the extent that the provisions of any securities laws or regulations conflict with the provisions of this .
(d) 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 this Section 4.10 by virtue 4.12 (Liens) of the Company’s compliance with such securities laws or regulations.Original Indenture is hereby amended to read in its entirety as follows:
Appears in 1 contract
Samples: First Supplemental Indenture (Energy Xxi (Bermuda) LTD)
Asset Sales. The Company will shall not, and will shall not permit any of its Restricted Subsidiaries to, consummate an Asset Sale unless:
(1) the Company (or the Restricted Subsidiary, as the case may be, ) receives consideration at the time of the Asset Sale at least equal to the Fair Market Value (measured as of the date of the definitive agreement with respect to such Asset Sale) fair market value of the assets or Equity Interests issued or sold or otherwise disposed ofof (such fair market value to be determined on the date of contractually agreeing to such Asset Sale);
(2) the fair market value is determined (a) by an executive officer of the Company if the value is less than $10.0 million or (b) in all other cases, by a resolution of the Company's Board of Directors, in either such case, as set forth in an Officers' Certificate delivered to the Trustee; and
(23) at least 75% of the consideration received in such the Asset Sale by the Company or such Restricted Subsidiary is in the form of cash or Cash Equivalents; provided that any . For purposes of this clause (3), each of the following items shall be deemed to be cash and Cash Equivalents for the purposes of this clause (2):cash:
(a) the assumption amount of any liabilities (liabilities, as shown on the Company’s 's or the such Restricted Subsidiary’s 's most recent balance sheet) sheet or in the notes thereto, of the Company or any such Restricted Subsidiary of the Company (other than contingent liabilities and liabilities that are by their terms subordinated to the Notes issued under this Indenture or any Subsidiary Guarantee) that are assumed by the transferee of any such assets pursuant to a customary novation agreement that releases the Company or the Restricted Subsidiary from further liability;assets; and
(b) any securities, notes or other obligations received by the Company or any such Restricted Subsidiary from such transferee that are substantially concurrently, subject to normal settlement periods, converted by the Company or the such Restricted Subsidiary into cash or Cash Equivalents within 180 days following their receipt (to the extent of the cash or Cash Equivalents receivedreceived in that conversion); and
(c) any stock property received as consideration for such Asset Sale that would otherwise constitute a permitted application of Net Proceeds (or assets of the kind referred to other cash in such amount) under clauses (bB) and or (dD) of under the next succeeding paragraph of this Section 4.10below. Within 365 360 days after the receipt of any Net Proceeds from an Asset Sale, the Company or the any of its Restricted Subsidiary, as the case may be, Subsidiaries may apply such an amount of cash equal to the amount of those Net Proceeds, Proceeds at its optionoption to:
(aA) repay Senior Debt and, if such Senior Debt repaid is revolving credit Indebtedness, to prepay, repay, purchase, repurchase or redeem any secured Indebtedness of the Company or any Restricted Subsidiary of the Companycorrespondingly reduce commitments with respect thereto;
(bB) to acquire a controlling interest in another business (including by way of merger or consolidation) all or substantially all of the assets of, or operating line a majority of the Voting Stock of, another business, in each case engaged in a Permitted Business;
(cC) make a capital expenditure relating to make capital expendituresan asset used or useful in a Permitted Business; or
(dD) to acquire other nonlong-current term assets to be that are used or useful in a Permitted Business. Pending the final application of any such Net Proceeds, the Company may temporarily reduce Indebtedness under any Credit Facility revolving credit borrowings or otherwise expend or invest such the Net Proceeds in any manner that is not prohibited by this Indenture. Any To the extent that the Company and its Restricted Subsidiaries do not apply an amount of cash equal to the amount of such Net Proceeds from Asset Sales described in this paragraph that are not applied or invested during such period as provided in the first sentence of this second preceding paragraph of this Section 4.10 the amount not so applied shall be deemed to constitute “"Excess Proceeds." No later than the 365th day after the Asset Sale Proceeds.” When (or, at the Company's option, an earlier date), if the aggregate amount of Excess Asset Sale Proceeds exceeds $10.0 million, the Company will be required under this Indenture to shall make an offer (an "Asset Sale Offer") to the all Holders of Notes issued thereunder and the all holders of any other Senior Indebtedness that is subject pari passu with the Notes containing provisions similar to requirements those set forth in this Indenture with respect to the application of net proceeds from asset sales that are substantially similar to those contained in this Indenture (an “Asset Sale Offer”) offers to purchase on a pro rata basis (or redeem with the Excess Asset Sale Proceeds prorated between the Holders proceeds of the Notes and such holders sales of such other Senior Indebtedness based upon outstanding aggregate principal amounts) assets to purchase the maximum principal amount of the Notes and such other Senior pari passu Indebtedness that may be purchased or prepaid, as applicable, out of the prorated Excess Asset Sale Proceeds, at an Proceeds (the "Offer Amount"). The offer price in cash in an amount any Asset Sale Offer will be equal to 100% of the principal amount thereof (or accreted value, as applicable) of the Notes and such other pari passu Indebtedness, plus accrued and unpaid interest thereon and Additional Interest (or its equivalent with respect to any such pari passu Indebtedness), if any, to the date of purchase, and will be payable in accordance with cash, in each case, in integral multiples of $1,000. If any Excess Proceeds remain after consummation of an Asset Sale Offer, the procedures set forth in Company may use those Excess Proceeds for any purpose not otherwise prohibited by this Indenture. To the extent that If the aggregate principal amount of Notes and other Senior pari passu Indebtedness tendered (and electing to be redeemed or repaid, as applicable) pursuant to an in such Asset Sale Offer is less than exceeds the amount of Excess Asset Sale Proceeds, the Excess Proceeds will be allocated by the Company to the Notes and its Restricted Subsidiaries may use any remaining Excess 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 Proceeds for general corporate purposes Offer) and any other purpose not prohibited the portion of each Note to be purchased will thereafter be determined by this Indenturethe Trustee on a pro rata basis among the Holders of such Notes with appropriate adjustments such that the Notes may only be purchased in integral multiples of $1,000. Upon completion of the offer to purchaseeach Asset Sale Offer, the amount of Excess Asset Sale Proceeds shall will be reset at zero. Upon the commencement of an Asset Sale Offer, the Company shall send, by first class mail, a notice to the Trustee and each of the Holders, 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. The notice, which shall govern the terms of the Asset Sale Offer, shall state:
(1) that the Asset Sale Offer is being made pursuant to this Section 4.11 and that such Asset Sale Offer shall remain open for 20 Business Days;
(2) the Offer Amount attributable to the Notes, the purchase price and the purchase date of the Notes tendered pursuant to the Asset Sale Offer (the "Purchase Date");
(3) that any Note not tendered or accepted for payment shall continue to accrue interest and Additional Interest, if any;
(4) 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, and Additional Interest, if any;
(5) 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 appointed by the Company, or a Paying Agent at the address specified in the notice at least three Business Days before the Purchase Date;
(6) that Holders shall 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 Note the Holder delivered for purchase and a statement that such Holder is withdrawing his election to have such Note purchased;
(7) that, if the aggregate accreted value of Notes and aggregate principal amount of such other pari passu Indebtedness tendered by Holders exceeds the Offer Amount, the Company shall select the Notes and such other pari passu Indebtedness to be purchased on a pro rata basis on the basis of the aggregate accreted value of Notes and the aggregate principal amount of such other pari passu Indebtedness tendered (with such adjustments as may be deemed appropriate by the Company so that only Notes in denominations of $1,000 aggregate principal amount at maturity, or integral multiples thereof, shall be purchased); and
(8) that Holders whose Notes were purchased only in part shall 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 shall, to the extent lawful, accept for payment, on a pro rata basis to the extent necessary, the Offer Amount of Notes and such other pari passu Indebtedness or portions thereof tendered pursuant to the Asset Sale Offer, or if less than the Offer Amount has been tendered, all Notes, and such other pari passu Indebtedness or portions thereof tendered, and shall deliver to the Trustee an Officers' Certificate stating that such Notes, and such other pari passu Indebtedness 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, shall on 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 shall promptly issue a new Note, and the Trustee, upon written request from the Company shall authenticate and mail or deliver such new Note to such Holder, in a principal amount at maturity 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 promptly after Purchase Date. If the 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, will be paid to the Holder in whose name a Note is registered at the close of business on such record date, and no interest or Additional Interest, if any, will be payable to Holders who tender Notes pursuant to the Asset Sale Offer. The Company will comply with the requirements of Rule 14e-1 under the Exchange Act and any other securities laws and regulations thereunder to the extent such those laws and regulations are applicable in connection with 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 Section 4.10Indenture, 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 Section 4.10 Indenture by virtue of such conflict. Prior to making any Asset Sale Offer, but in any event within 30 days following the Company’s compliance with date on which such securities laws Asset Sale Offer would otherwise be required, the Company shall either repay all outstanding Senior Debt (or regulationscommitments to extend Senior Debt) that prohibits prepayment or repurchase of the Notes pursuant to an Asset Sale Offer or obtain the requisite consents, if any, under all agreements governing such Senior Debt or commitments to permit the repurchase of Notes required by this Section 4.10.
Appears in 1 contract
Samples: Indenture (K&f Industries Inc)
Asset Sales. (a) The Company will not, and will not permit any of its Restricted Subsidiaries to, consummate an Asset Sale unless:
(1) the Company (or the Restricted Subsidiary, as the case may be, ) receives consideration at the time of the Asset Sale at least equal to the Fair Market Value (measured as of the date of the definitive agreement with respect to such Asset Sale) of the assets or Equity Interests issued or sold or otherwise disposed of; and
(2) at least 75% of the consideration received in such the Asset Sale by the Company or such Restricted 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 Security 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 items shall will be deemed to be cash and Cash Equivalents for the purposes of this clause (2):cash:
(aA) the assumption of any liabilities (liabilities, as shown on the Company’s or the Restricted Subsidiary’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 prior to its date), of the Company or any Restricted Subsidiary of the Company (other than contingent liabilities and liabilities that are by their terms subordinated to the Notes issued under this Indenture or any Subsidiary Note Guarantee) that are assumed by the transferee of any such assets or any other Person, other than the Company or one of its Subsidiaries, pursuant to a customary novation or indemnity agreement that releases the Company or the such Restricted Subsidiary from or indemnifies it against further liability;
(bB) any securities, notes notes, or other obligations received by the Company or any such of its Restricted Subsidiary Subsidiaries from such transferee that are are, subject to ordinary settlement periods, converted by the Company or the such Restricted Subsidiary into cash or Cash Equivalents within 180 days following their receipt (cash, to the extent of the cash or Cash Equivalents received)received in that conversion; and
(cC) any stock or assets of the kind referred to in clauses (2) or (4) of Section 4.20(b); and
(b) and (d) of the next paragraph of this Section 4.10. Within 365 360 days after the receipt of any Net Proceeds from an Asset Sale, the Company or any Restricted Subsidiary may apply such Net Proceeds:
(1) to repay Indebtedness and other Obligations under a Credit Facility; provided that, if the Restricted SubsidiaryIndebtedness repaid is revolving credit Indebtedness, to permanently reduce commitments with respect thereto in an amount equal to the principal amount so repaid;
(2) to acquire all or substantially all of the assets of, or any Capital Stock of, a Permitted Business or one or more Persons primarily engaged in a Permitted Business, if, after giving effect to any such acquisition of Capital Stock, such Permitted Business or Person, as the case may be, may apply such Net Proceeds, at its option:
(a) to prepay, repay, purchase, repurchase is or redeem any secured Indebtedness of the Company or any becomes a Restricted Subsidiary of the Company;
(b3) to make a capital expenditure; or
(4) to acquire a controlling interest in another business other assets that are not classified as current assets under GAAP and that are used or all or substantially all of the assets or operating line of another business, in each case engaged useful in a Permitted Business;
; provided that the assets (cincluding 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 make capital expenditures; or
(d) to acquire other non-current assets to be used the extent required by and in a Permitted Businessaccordance with the Security Documents. Pending the final application of any such Net Proceeds, the Company or any Restricted Subsidiary may apply the Net Proceeds to temporarily reduce Indebtedness under any Credit Facility revolving credit borrowings or otherwise expend or invest such the Net Proceeds in any manner that is not prohibited by this Indenture. Any Net Proceeds from Asset Sales described in this paragraph that are not applied or invested as provided above in the first sentence of this paragraph of this Section 4.10 shall be deemed to 4.20(b) will constitute “Excess Asset Sale Proceeds.” When the aggregate amount of Excess Asset Sale Proceeds exceeds $10.0 7.5 million, the Company will be required under this Indenture to will, within five days thereof, make an offer to the Holders of Notes issued thereunder and the holders of any other Senior Indebtedness that is subject to requirements with respect to the application of net proceeds from asset sales that are substantially similar to those contained in this Indenture (an “Asset Sale Offer”) to purchase on a pro rata basis (all Holders of Notes and all holders of other Indebtedness that is pari passu with the Excess Asset Sale Proceeds prorated between Notes containing provisions similar to those set forth in this Indenture with respect to offers to purchase, prepay or redeem with the Holders proceeds of the Notes and such holders sales of such other Senior Indebtedness based upon outstanding aggregate principal amounts) assets, to purchase, prepay or redeem the maximum principal amount of principal of, and premium, if any, and interest and Additional Interest, if any, on, the Notes and such other Senior pari passu Indebtedness that may be purchased purchased, prepaid or prepaid, as applicable, redeemed out of the prorated Excess Proceeds (after deducting therefrom all fees and expenses incurred in connection therewith).
(c) The offer price for the Notes in any Asset Sale Proceeds, at an offer price in cash in an amount Offer will be equal to 100% of the principal amount thereof plus accrued and unpaid interest thereon and Additional Interest, if any, to the date of purchase, in accordance with prepayment or redemption, subject to the procedures set forth in this Indenture. To the extent that the aggregate principal amount rights of Holders of Notes on the relevant record date to receive interest due on the relevant Interest Payment Date, and other Senior Indebtedness tendered will be payable in cash.
(and electing to be redeemed or repaid, as applicabled) pursuant to If any Excess Proceeds remain after consummation of an Asset Sale Offer is less than the Excess Asset Sale ProceedsOffer, the Company and its Restricted Subsidiaries may use any remaining those Excess Asset Sale Proceeds for general corporate purposes and any other 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 the offer to purchaseeach Asset Sale Offer, the amount of Excess Asset Sale Proceeds shall will be reset at zero. .
(f) The Company will not and will not permit any of its Restricted 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 such 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 Section 4.10Indenture, 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 Section 4.10 Indenture by virtue of the Company’s compliance with such securities laws or regulationscompliance.
Appears in 1 contract
Asset Sales. The Company will shall not, and will shall not permit any of its Restricted Subsidiaries to, consummate an Asset Sale unless:
unless (1i) the Company (or the Restricted Subsidiary, as the case may be, ) receives consideration at the time of the such Asset Sale at least equal to the Fair Market Value fair market value (measured as evidenced by a resolution of the date Board of Directors set forth in an Officers' Certificate delivered to the definitive agreement with respect Trustee in the event of an Asset Sale (whether pursuant to such Asset Salea single transaction or a series of related transactions) that has fair market value or involves Net Proceeds in excess of $5.0 million) of the assets or Equity Interests issued or sold or otherwise disposed of; and
of and (2ii) at least 7580% of the consideration therefor received in by the Company or such Asset Sale Restricted Subsidiary is in the form of cash or Cash Equivalentscash; provided that any the amount of the following items shall be deemed to be cash and Cash Equivalents for the purposes of this clause (2):
(ax) the assumption of any liabilities (as shown on the Company’s 's or the such Restricted Subsidiary’s 's most recent balance sheet) of the Company or any Restricted Subsidiary of the Company (other than contingent liabilities and liabilities that are by their terms subordinated to the Notes issued under this Indenture or any Subsidiary Guaranteeguarantee thereof) that are assumed by the transferee of any such assets pursuant to a customary novation agreement that releases the Company or the such Restricted Subsidiary from further liability;
liability and (by) any securities, notes or other obligations 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 the Restricted such Subsidiary into cash or Cash Equivalents within 180 days following their receipt (to the extent of the cash or Cash Equivalents received); and
(c) any stock or assets of the kind referred , shall be deemed to in clauses (b) and (d) of the next paragraph be cash for purposes of this Section 4.10provision. Within 365 180 days after the receipt of any Net Proceeds from an Asset SaleSale (360 days in the case of Net Proceeds that are comprised solely of Buy Out Proceeds), the Company or the Restricted Subsidiary, as the case may be, may apply such Net Proceeds, at its option:
Proceeds (a) to prepayrepay Indebtedness under the New Credit Facility, repay, purchase, repurchase or redeem any secured Indebtedness of the Company or any Restricted Subsidiary of the Company;
(b) to acquire a controlling interest in another business or all or substantially all of the assets of, or operating line a majority of the Voting Stock of, another business, in each case engaged in a Permitted Business;
, (c) to make capital expenditures; or
, (d) to acquire other nonlong-current term assets to be that are used or useful in a Permitted Business, including Media Representation Contracts, or (e) to pay Buy Out Proceeds Amounts in connection with Contract Buy Outs. Pending the final application of any such Net Proceeds, the Company may temporarily reduce Indebtedness under any Credit Facility revolving credit borrowings or otherwise expend or invest such Net Proceeds in any manner that is not prohibited by this Indenture. Any Net Proceeds from Asset Sales described in this paragraph that are not applied or invested as provided in the first sentence of this paragraph of this Section 4.10 shall be deemed to constitute “"Excess Asset Sale Proceeds.” " When the aggregate amount of Excess Asset Sale Proceeds exceeds $10.0 5.0 million, the Company will shall be required under this Indenture to make an offer to the all Holders of Notes issued thereunder and the all holders of any other Senior Indebtedness that is subject pari passu with the Notes containing provisions similar to requirements those set forth in this Indenture with respect to offers to purchase or redeem with the application proceeds of net proceeds from asset sales that are substantially similar to those contained in this Indenture of assets (an “"Asset Sale Offer”") to purchase on a pro rata basis (with the Excess Asset Sale Proceeds prorated between the Holders of the Notes and such holders of such other Senior Indebtedness based upon outstanding aggregate principal amounts) the maximum principal amount of the Notes and such other Senior pari passu Indebtedness that may be purchased or prepaid, as applicable, out of the prorated Excess Asset Sale Proceeds, at an offer price in cash in an amount equal to 100% of the principal amount thereof plus accrued and unpaid interest thereon and Liquidated Damages thereon, if any, to the date of purchase, in accordance with the procedures set forth in this IndentureSection 3.09 hereof, and such other 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 Notes and such other Senior pari passu Indebtedness tendered (and electing to be redeemed or repaid, as applicable) pursuant to an into such Asset Sale Offer is less than surrendered by Holders thereof exceeds the amount of Excess Asset Sale Proceeds, the Company Trustee shall select the Notes and its Restricted Subsidiaries may use any remaining Excess Asset Sale Proceeds for general corporate purposes and any such other purpose not prohibited by this Indenturepari passu Indebtedness to be purchased on a pro rata basis. Upon completion of the such offer to purchase, the amount of Excess Asset Sale Proceeds shall 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 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, 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 the Company’s compliance with such securities laws or regulations.
Appears in 1 contract
Asset Sales. The Company will not, and will not permit any of its Restricted Subsidiaries to, consummate (a) Cause or make an Asset Sale Sale, unless:
(1) the Company Borrower or the Restricted Subsidiaryany of its Subsidiaries, as the case may be, receives consideration (including by way of relief from, or by any other Person assuming responsibility for, any liabilities, contingent or otherwise) at the time of the such Asset Sale at least equal to the Fair Market Value (measured as determined at the time of the date of the definitive agreement with respect contractually agreeing to such Asset Sale) of the assets or Equity Interests issued or sold or otherwise disposed of; and;
(2) at least 7575.0% of the consideration therefor received in by the Borrower or such Asset Sale Subsidiary, as the case may be, is in the form of cash or Cash Equivalents;
(3) no Default or Event of Default has occurred and is continuing at such time, or would result therefrom; provided that any and
(4) the aggregate fair market value of assets sold pursuant to this Section 7.04(a) shall not exceed $5,000,000 per fiscal year of the following items shall be deemed to be cash and Cash Equivalents for the purposes of this clause (2):
(a) the assumption of any liabilities (as shown on the Company’s or the Restricted Subsidiary’s most recent balance sheet) of the Company or any Restricted Subsidiary of the Company (other than liabilities that are by their terms subordinated to Notes issued under this Indenture or any Subsidiary Guarantee) by the transferee of any such assets pursuant to a customary novation agreement that releases the Company or the Restricted Subsidiary from further liabilityBorrower;
(b) any securities, notes The Borrower or other obligations received by the Company or any such Restricted Subsidiary from such transferee that are converted by the Company or the Restricted Subsidiary into cash or Cash Equivalents within 180 days following their receipt (to the extent of cash or Cash Equivalents received); and
(c) any stock or assets of the kind referred to in clauses (b) and (d) of the next paragraph of this Section 4.10. Within 365 days after the receipt of any Net Proceeds from an Asset Sale, the Company or the Restricted Subsidiary, as the case may be, may shall apply such Net Proceeds, at its option:
(a) to prepay, repay, purchase, repurchase or redeem any secured Indebtedness of the Company or any Restricted Subsidiary of the Company;
(b) to acquire a controlling interest in another business or all or substantially all of the assets or operating line of another business, in each case engaged in a Permitted Business;
(c) to make capital expenditures; or
(d) to acquire other non-current assets to be used in a Permitted Business. Pending the final application of any such Net Proceeds, the Company may temporarily reduce Indebtedness under any Credit Facility or otherwise expend or invest such Net Proceeds in any manner that is not prohibited by this Indenture. Any Net Proceeds from Asset Sales described in this paragraph that are not applied or invested as provided in the first sentence of this paragraph of this Section 4.10 shall be deemed to constitute “Excess Asset Sale Proceeds.” When the aggregate amount of Excess Asset Sale Proceeds exceeds $10.0 million, the Company will be required under this Indenture to make an offer to the Holders of Notes issued thereunder and the holders of any other Senior Indebtedness that is subject to requirements with respect to the application of net proceeds from asset sales that are substantially similar to those contained in this Indenture (an “Asset Sale Offer”) to purchase on a pro rata basis (with the Excess Asset Sale Proceeds prorated between the Holders of the Notes and such holders of such other Senior Indebtedness based upon outstanding aggregate principal amounts) the maximum principal amount of the Notes and such other Senior Indebtedness that may be purchased or prepaid, as applicable, out of the prorated Excess Asset Sale Proceeds, at an offer price in cash in an amount equal to 100% of the principal amount thereof plus accrued Net Cash Proceeds from such Asset Sale (or any Disposition that is not an Asset Sale but that requires such Net Cash Proceeds to be applied in accordance with this Section 7.04(b) pursuant to the definition of “Asset Sale”) or Casualty Event, to prepay Loans in accordance with Section 2.05(b)(ii); provided that, so long as no Default or Event of Default has occurred and unpaid interest thereon is continuing, the Borrower or such Subsidiary may reinvest the Net Cash Proceeds of such Asset Sale (or any Disposition that is not an Asset Sale but that requires such Net Cash Proceeds to be applied in accordance with this Section 7.04(b) pursuant to the definition of “Asset Sale”) or Casualty Event to (x) purchase replacement or similar property that is disposed of pursuant to such Asset Sale (or such Disposition that is not an Asset Sale but that requires such Net Cash Proceeds to be applied in accordance with this Section 7.04(b) pursuant to the definition of “Asset Sale”) or (y) repair or replace such property that is the subject of such Casualty Event, in each case within six (6) months after the date of purchase, such Asset Sale (or any Disposition that is not an Asset Sale but that requires such Net Cash Proceeds to be applied in accordance with this Section 7.04(b) pursuant to the procedures set forth in this Indenture. To definition of “Asset Sale”) or Casualty Event or, so long as within six (6) months after the extent Asset Sale (or any Disposition that the aggregate principal amount of Notes and other Senior Indebtedness tendered (and electing is not an Asset Sale but that requires such Net Cash Proceeds to be redeemed applied in accordance with this Section 7.04(b) pursuant to the definition of “Asset Sale”) or repaidCasualty Event that generated the Net Cash Proceeds, the Borrower or such Subsidiary, as applicable) pursuant , has entered into and not abandoned or rejected a binding agreement to an Asset Sale Offer is less than the Excess Asset Sale Proceeds, the Company and its Restricted Subsidiaries may use any remaining Excess Asset Sale Proceeds for general corporate purposes and any other purpose not prohibited by this Indenture. Upon completion of the offer to make a purchase, the amount of Excess Asset Sale Proceeds shall be reset at zero. The Company will comply repair or replacement in compliance with the requirements of Rule 14e-1 under the Exchange Act provision described in clauses (x) and any other securities laws and regulations thereunder to the extent such laws and regulations are applicable in connection with an Asset Sale Offer. To the extent that the provisions of any securities laws or regulations conflict with the provisions (y) of this Section 4.10paragraph, and that investment is thereafter completed, within one hundred eighty (180) days after 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 end of the Company’s compliance with such securities laws or regulationssix (6) month period.
Appears in 1 contract
Asset Sales. The Company will (a) From and after the Effective Date, Holdings shall not, and will shall not permit any of its Restricted Subsidiaries Subsidiary to, consummate consummate, directly or indirectly, an Asset Sale unless:
(1) the Company Holdings or the such Restricted Subsidiary, as the case may be, receives consideration at the time of the such Asset Sale at least equal to the Fair Market Value fair market value (measured as at the time of the date of the definitive agreement with respect 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, at least 75% of the consideration received in (measured at the time of agreeing to such Asset Sale Sale) for such Asset Sale, together with all other Asset Sales since the Effective Date (on a cumulative basis), received by Holdings or such Restricted Subsidiary, as the case may be, is in the form of cash or Cash Equivalents; provided that any of the following items shall be deemed to be cash and Cash Equivalents for the purposes of this clause (2):
(a) the assumption of any liabilities (as shown on the Company’s or the Restricted Subsidiary’s most recent balance sheet) of the Company or any Restricted Subsidiary of the Company (other than liabilities that are by their terms subordinated to Notes issued under this Indenture or any Subsidiary Guarantee) by the transferee of any such assets pursuant to a customary novation agreement that releases the Company or the Restricted Subsidiary from further liability;.
(b) Within 450 days after the later of (A) the date of any securities, notes or other obligations received by the Company or any such Restricted Subsidiary from such transferee that are converted by the Company or the Restricted Subsidiary into cash or Cash Equivalents within 180 days following their receipt (to the extent of cash or Cash Equivalents received); and
(c) any stock or assets of the kind referred to in clauses (b) Asset Sale and (dB) of the next paragraph of this Section 4.10. Within 365 days after the receipt of any Net Proceeds from an any Asset SaleSale (the “Asset Sale Proceeds Application Period”), the Company Holdings or the such Restricted Subsidiary, as the case may be, may apply such Net Proceeds, at its option:, may apply an amount equal to the Net Proceeds from such Asset Sale,
(a1) to prepaythe extent such Net Proceeds are from an Asset Sale of Collateral, repayto repay (i) Obligations under the Secured Notes and any Additional Notes, purchase(ii) First Lien Obligations under Secured Indebtedness incurred pursuant to a Credit Facility to the extent such Obligations were incurred or outstanding under clause (1) of Section 4.09(b) and/or (iii) First Lien Obligations under any other Secured Indebtedness, repurchase or redeem any secured Indebtedness and in each case, in the case of the Company revolving obligations, to correspondingly reduce commitments with respect thereto; provided that if Holdings or any Restricted Subsidiary shall so reduce any First Lien Obligations other than the Secured Notes pursuant to clause (ii) or (iii), Holdings or such Restricted Subsidiary will either (A) reduce Obligations under the Secured Notes on a pro rata basis with such other First Lien Obligations by, at its option, (x) redeeming Secured Notes pursuant to Section 3.07 or (y) purchasing Secured Notes through open market purchases or in privately negotiated transactions at market prices (which may be below par), or (B) make an offer (in accordance with the procedures for an Asset Sale Offer set forth in Section 3.09 and this Section 4.10) to all Holders to purchase their Secured Notes on a ratable basis with such other First Lien Obligations for no less than 100% of the Companyprincipal amount thereof, plus the amount of accrued but unpaid interest, if any, thereon up to the principal amount of Secured Notes to be repurchased;
(b2) to acquire the extent such Net Proceeds are from an Asset Sale that does not 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 Holdings or such Restricted Subsidiary will either (A) reduce the aggregate principal amount of Obligations under the Secured Notes on an equal or ratable basis with any Senior Indebtedness repaid pursuant to this clause (2) by, at its option, (x) redeeming Secured Notes and any Additional Notes as described in Section 3.07 and/or (y) purchasing Secured 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 Secured 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 Holdings 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, such Net Proceeds shall be invested in 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 controlling interest Guarantor (excluding the Issuers), other than Indebtedness owed to an Issuer or a Guarantor, and, in another business the case of revolving obligations, to correspondingly reduce commitments with respect thereto; or
(5) any one or all or substantially all more combinations of the assets or operating line of another businessforegoing; provided that, in each the case engaged 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 expiration of the First Commitment Application Period (a Permitted Business;“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) to make capital expenditures; or
(d) to acquire other non-current assets to be used in a Permitted Business. Pending the final application of any such Net Proceeds, the Company may temporarily reduce Indebtedness under any Credit Facility or otherwise expend or invest such Net Proceeds in any manner that is not prohibited by this Indenture. Any Net Proceeds from the Asset Sales described in Sale covered by this paragraph Section 4.10 that are not invested or applied or invested as provided and within the time period set forth in the first sentence of this paragraph of this Section 4.10 shall 4.10(b) will be deemed to constitute “Excess Asset Sale Proceeds.” When ”; provided that any amount of Net Proceeds offered to Holders of the Secured Notes pursuant to clauses (1) and (2) of the second preceding paragraph 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 Asset Sale Proceeds Proceeds, after giving effect to the operation of the immediately following sentence, exceeds $10.0 200.0 million, the Company will be required under this Indenture to Issuers shall make an offer to purchase to all Holders and, if required by the Holders terms of Notes issued thereunder and the holders of any other Senior Indebtedness that is subject to requirements with respect (1) to the application extent such Net Proceeds are from an Asset Sale of net proceeds Collateral, has Pari Passu Lien Priority with the Secured Notes and (2) to the extent such Net Proceeds are from asset sales an Asset Sale that are substantially similar does not constitute Collateral, is pari passu in right of payment with the Secured Notes (“Pari Passu Indebtedness”), to those contained in this Indenture repay or offer to repay such Indebtedness (an “Asset Sale Offer”) to purchase on a pro rata basis the maximum aggregate principal amount (with the Excess Asset Sale Proceeds prorated between the Holders or accreted value, as applicable) of the Secured Notes and such holders of such other Senior Indebtedness based upon outstanding aggregate principal amounts) (in the maximum principal amount case of the Secured Notes and such other Senior Indebtedness only, equal to $1,000 or an integral multiple thereof) that may be purchased or prepaid, as applicable, repaid out of the prorated Excess Asset Sale Proceeds, Proceeds (at an offer price in cash in the case of the Secured Notes in an amount equal to 100% of the principal amount thereof thereof, plus accrued and unpaid interest thereon to interest, if any, to, but excluding, the date fixed for the repurchase of purchase, the Secured 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 Issuers shall only be required to make an Asset Sale Offer with (i) 50% 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 Secured 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 Secured 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 of Notes and other Senior Indebtedness tendered (and electing to be redeemed or repaidaccreted value, as applicable) of Secured Notes and, if applicable, Indebtedness having Pari Passu Lien Priority or Pari Passu Indebtedness, as the case may be, tendered, purchased or repaid pursuant to an Asset Sale Offer is less than the Excess Asset Sale ProceedsProceeds (or, in the case of an Advance Offer, the Company and its Restricted Subsidiaries Advance Portion), the Issuers may use any remaining Excess Asset Sale Proceeds for general corporate purposes and (or, in the case of an Advance Offer, the Advance Portion) (“Declined Proceeds”) in any other purpose manner permitted or not prohibited by this Indenture. If the aggregate principal amount (or accreted value, as applicable) of Secured Notes or 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 Secured Notes (subject to applicable DTC procedures as to Global Notes) and the Issuers 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 Secured Notes and such Indebtedness tendered, purchased or repaid, with adjustments as necessary so that no Secured Notes or Indebtedness, as the case may be, will be repurchased in an unauthorized denomination; provided that no Secured Notes of $2,000 or less shall be repurchased in part. Upon completion of the offer to purchaseany such Asset Sale Offer, the amount of Excess Asset Sale Proceeds shall be reset at zero. 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 Secured Notes, the Security Documents 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 Secured 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 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 Company will Issuers shall comply with the requirements of Rule 14e-1 14e‑1 under the Exchange Act and any other securities laws and regulations thereunder to the extent such laws and or regulations are applicable in connection with the repurchase of the Secured 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, the Company will Issuers shall comply with the applicable securities laws and regulations and will 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 Company’s compliance Issuers’ obligation to make an offer to repurchase the Secured Notes as a result of an Asset Sale may be waived or modified with such securities laws or regulationsthe written consent of the Holders of a majority in principal amount of the Secured Notes.
Appears in 1 contract
Asset Sales. The Company will notConsummate, and will not or permit any of its Restricted Subsidiaries to, to consummate an Asset Sale unless:
: (1a) the Company (or the Restricted Subsidiary, as the case may be, ) receives consideration (including by way of relief from, or by any other Person assuming sole responsibility for, any liabilities, contingent or otherwise) at the time of the Asset Sale at least equal to the Fair Market Value (measured as of the date of the definitive agreement with respect to such Asset Sale) fair market value of the assets or Equity Interests equity Securities issued or sold or otherwise disposed of; and
(2b) in the case of Asset Sales involving consideration in excess of $10,000,000, the fair market value is determined by Company's Board of Directors and evidenced by a resolution of such Board of Directors set forth in an officer's certificate delivered to the Administrative Agent promptly after the consummation of such Asset Sale; and (c) at least 75% of the consideration received in such the Asset Sale by Company or such Subsidiary is in the form of cash or Cash, Cash Equivalents; provided that , Replacement Assets or any combination thereof. For purposes of clause (c) above, each of the following items shall will be deemed to be cash and Cash Equivalents for the purposes of this clause (2):Cash:
(ai) the assumption of any liabilities (liabilities, as shown on the Company’s 's or the Restricted such Subsidiary’s 's most recent balance sheet) , of the Company or any Restricted Subsidiary of the Company (other than liabilities that are by their terms subordinated to Notes issued under this Indenture the Term Loans or the Guaranty in the case of any Subsidiary GuaranteeGuarantor) that are assumed by the transferee of any such assets and, in the case of liabilities other than Non-Recourse Debt, where Company and SENIOR UNSECURED TERM LOAN AND GUARANTY AGREEMENT EXECUTION 838278-New York Server 7A all Subsidiaries are released pursuant to a customary novation an agreement that releases the Company or the Restricted such Subsidiary from further liability;
(bii) any securities, notes Securities or other obligations received by the Company or any such Restricted Subsidiary from such transferee that are within one hundred eighty (180) days converted by the Company or the Restricted such Subsidiary into cash or Cash Equivalents within 180 days following their receipt (to the extent of cash or the Cash Equivalents receivedreceived in that conversion); and
(iii) any Designated Noncash Consideration received by Company or any of its Subsidiaries in the Asset Sale having an aggregate fair market value, taken together with all other Designated Noncash Consideration received pursuant to this clause (iii) that is at the time outstanding, not to exceed $5,000,000 million (with the fair market value of each item of Designated Noncash Consideration being measured at the time received and without giving effect to subsequent changes in value). For purposes of paragraph (c) above, any stock liabilities of Company or any Subsidiary of Company that are not assumed by the transferee of such assets in respect of the kind referred to which Company and all Subsidiaries are not released from any future liabilities in clauses (b) and (d) of the next paragraph of this Section 4.10connection therewith shall not be considered consideration. Within 365 days after the receipt of any Net Proceeds from an Asset Sale, the Company (or the Restricted such Subsidiary, as the case may be, ) may apply such those Net Proceeds, Proceeds at its option:
(a1) to prepayrepay Senior Debt and, repayif the Senior Debt repaid is revolving credit Indebtedness, purchase, repurchase or redeem any secured Indebtedness of the Company or any Restricted Subsidiary of the Companyto correspondingly reduce commitments with respect thereto;
(b2) to acquire a controlling interest in another business or all or substantially all of the assets of, or operating line a majority of the voting equity Securities of, another business, in each case Person engaged in a Permitted Businessbusiness permitted pursuant to Section 6.12;
(c3) to make a capital expendituresexpenditure; or
(d4) to acquire other non-current assets to be assets, including investments in property, that are used or useful in a Permitted Businessbusiness permitted pursuant to Section 6.12; it being understood that Company may apply Net Proceeds received by any of its Subsidiaries in any of the foregoing manners and any Subsidiary of Company may apply Net Proceeds received by Company or another Subsidiary of Company in any of the foregoing manners. Pending the final application of any such Net Proceeds, the Company may temporarily reduce revolving credit Indebtedness under any Credit Facility or otherwise expend or invest such the Net Proceeds in any manner that is not prohibited by this IndentureAgreement. Any Net Proceeds from Asset Sales described in this paragraph that are not applied or invested as provided in the first sentence of this preceding paragraph of this Section 4.10 shall be deemed to will constitute “Excess "EXCESS PROCEEDS". On the 366th day after an SENIOR UNSECURED TERM LOAN AND GUARANTY AGREEMENT EXECUTION 838278-New York Server 7A Asset Sale Proceeds.” When Sale, if the aggregate amount of Excess Asset Sale Proceeds exceeds $10.0 million15,000,000, Company will prepay the Term Loans in an amount equal to such Excess Proceeds in accordance with Section 2.13(b). The amount of Term Loans prepaid will be as more specifically set forth in Section 2.13(b), and will be payable in cash. If the aggregate principal amount of Term Loans exceeds the amount of Excess Proceeds, the Company will Term Loans shall be required under this Indenture to make an offer to the Holders of Notes issued thereunder and the holders of any other Senior Indebtedness that is subject to requirements with respect to the application of net proceeds from asset sales that are substantially similar to those contained in this Indenture (an “Asset Sale Offer”) to purchase prepaid on a pro rata basis (with on the Excess Asset Sale Proceeds prorated between the Holders basis of the Notes and such holders of such other Senior Indebtedness based upon outstanding aggregate principal amounts) the maximum principal amount of the Notes and such other Senior Indebtedness that may be purchased or prepaid, as applicable, out of the prorated Excess Asset Sale 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. To the extent that the aggregate principal amount of Notes and other Senior Indebtedness tendered (and electing to be redeemed or repaid, as applicable) pursuant to an Asset Sale Offer is less than the Excess Asset Sale Proceeds, the Company and its Restricted Subsidiaries may use any remaining Excess Asset Sale Proceeds for general corporate purposes and any other purpose not prohibited by this IndentureTerm Loans. Upon completion of each such prepayment of the offer to purchaseTerm Loans, the amount of Excess Asset Sale Proceeds shall 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 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, 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 the Company’s compliance with such securities laws or regulations.
Appears in 1 contract
Samples: Senior Unsecured Term Loan and Guaranty Agreement (Simmons Co /Ga/)
Asset Sales. The Company will shall not, and will shall not permit any of its Restricted Subsidiaries to, consummate an Asset Sale unless:
unless (1a) the Company or the such Restricted Subsidiary, as the case may be, receives consideration at the time of the such Asset Sale at least equal to the Fair Market Value fair market value (measured as evidenced by a resolution of the date board of directors set forth in an Officers' Certificate delivered to the definitive agreement with respect to such Asset SaleTrustee) of the assets or Equity Interests issued or sold or otherwise disposed of; and
of and (2b) at least 75% of the consideration therefor received in by the Company or such Asset Sale Restricted Subsidiary is in the form of (i) cash or Cash EquivalentsEquivalents or (ii) property or assets that are used or useful in a Permitted Business, or the Capital Stock of any Person engaged in a Permitted Business if, as a result of the acquisition by the Company or any Restricted Subsidiary thereof, such Person becomes a Restricted Subsidiary; provided that any the amount of the following items shall be deemed to be cash and Cash Equivalents for the purposes of this clause (2):
(ax) the assumption of any liabilities (as shown on the Company’s 's or the such Restricted Subsidiary’s 's most recent balance sheet) ), of the Company or any Restricted Subsidiary of the Company (other than contingent liabilities and liabilities that are by their terms subordinated to the Notes issued under this Indenture or any Subsidiary Guaranteeguarantee thereof) that are assumed by the transferee of any such assets pursuant to a customary novation agreement that releases the Company or the such Restricted Subsidiary from further liability;
, (by) any securities, notes or other obligations 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 the such Restricted Subsidiary into cash or Cash Equivalents within 180 days following their receipt (to the extent of the cash or Cash Equivalents received); and
, and (cz) any stock Designated Noncash Consideration received by the Company or assets any of its Restricted Subsidiaries in such Asset Sale having an aggregate fair market value, taken together with all other Designated Noncash Consideration received pursuant to this clause (z) that is at that time outstanding, not to exceed 15% of Total Assets at the time of the kind referred receipt of such Designated Noncash Consideration (with the fair market value of each item of Designated Noncash Consideration being measured at the time received and without giving effect to subsequent changes in clauses (b) and (d) of the next paragraph value), shall be deemed to be cash for purposes of this Section 4.10; and provided further that the 75% limitation referred to in clause (b) above will not apply to any Asset Sale in which the cash or Cash Equivalents portion of the consideration received therefrom, determined in accordance with the foregoing proviso, is equal to or greater than what the after-tax proceeds would have been had such Asset Sale complied with the aforementioned 75% limitation. Within 365 days after the receipt of any Net Proceeds from an Asset Sale, the Company or the any such Restricted Subsidiary, as the case may be, may Subsidiary shall apply such Net Proceeds, at its option:
option (or to the extent the Company is required to apply such Net Proceeds pursuant to the terms of the New Credit Facility), to (a) to prepay, repay, purchase, repurchase repay or redeem any secured purchase Senior Indebtedness or Pari Passu Indebtedness of the Company or any Indebtedness of any Restricted Subsidiary Subsidiary, provided that, if the Company shall so repay or purchase Pari Passu Indebtedness of the Company;
, it will equally and ratably reduce Indebtedness under the Notes if the Notes are then redeemable, or, if the Notes may not then be redeemed, the Company shall make an offer (in accordance with the procedures set forth below for an Asset Sale Offer) to all Holders of Notes to purchase at a purchase price equal to 100% of the principal amount of the Notes, plus accrued and unpaid interest and Liquidated Damages, if any, thereon to the date of purchase, the Notes that would otherwise be redeemed, or (b) to acquire an investment in property, the making of a controlling interest capital expenditure or the acquisition of assets that are used or useful in another business a Permitted Business, or all or substantially all Capital Stock of the assets or operating line of another business, in each case any Person primarily engaged in a Permitted Business;
Business if (ci) to make capital expenditures; or
as a result of the acquisition by the Company or any Restricted Subsidiary thereof, such Person becomes a Restricted Subsidiary or (dii) to acquire other non-current assets to be used the Investment in a such Capital Stock is permitted by clause (f) of the definition of Permitted BusinessInvestments. Pending the final application of any such Net Proceeds, the Company may temporarily reduce Indebtedness under any Credit Facility or otherwise expend or invest such Net Proceeds in any manner that is not prohibited by this Indenture. Any Net Proceeds from Asset Sales described in this paragraph that are not applied or invested as provided in the first sentence of this paragraph of this Section 4.10 shall will be deemed to constitute “"Excess Asset Sale Proceeds.” " When the aggregate amount of Excess Asset Sale Proceeds exceeds $10.0 15.0 million, the Company will be required under this Indenture to make an offer to the all Holders of Notes issued thereunder and the holders of any other Senior Indebtedness that is subject to requirements with respect to the application of net proceeds from asset sales that are substantially similar to those contained in this Indenture (an “"Asset Sale Offer”") to purchase on a pro rata basis (with the Excess Asset Sale Proceeds prorated between the Holders of the Notes and such holders of such other Senior Indebtedness based upon outstanding aggregate principal amounts) the maximum principal amount of the Notes and such other Senior Indebtedness that may be purchased or prepaid, as applicable, out of the prorated Excess Asset Sale Proceeds, at an offer price in cash in an amount equal to 100% of the principal amount thereof thereof, plus accrued and unpaid interest and Liquidated Damages, if any, thereon to the date of purchase, in accordance with the procedures set forth in this Indenture. 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 other Senior Indebtedness tendered (and electing to be redeemed or repaid, as applicable) pursuant to surrendered by Holders thereof in connection with an Asset Sale Offer is less than exceeds the amount of Excess Asset Sale Proceeds, the Company Trustee shall select the Notes to be purchased as set forth under Sections 3.02 and its Restricted Subsidiaries may use any remaining Excess Asset Sale Proceeds for general corporate purposes and any other purpose not prohibited by this Indenture3.03 hereof. Upon completion of the such offer to purchase, the amount of Excess Asset Sale Proceeds shall be reset at zero. The Company will shall comply with the requirements of Rule 14e-1 under the Exchange Act and any other securities laws and regulations thereunder to the extent such laws and regulations are applicable in connection with the repurchase of 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 Section 4.10Indenture relating to such Asset Sale Offer, the Company will shall comply with the applicable securities laws and regulations and will shall not be deemed to have breached its obligations under described in this Section 4.10 Indenture by virtue of the Company’s compliance with such securities laws or regulationsthereof.
Appears in 1 contract
Samples: Indenture (Formica Corp)
Asset Sales. The Company will shall not, and will shall not permit any of its Restricted Subsidiaries to, consummate engage in an Asset Sale unless:
unless (1i) the Company (or the Restricted Subsidiary, as the case may be, ) receives consideration at the time of the such Asset Sale at least equal to the Fair Market Value fair market value (measured as determined in good faith by a resolution of the date Board of Directors of the definitive agreement Company set forth in an Officer's Certificate delivered to the Trustee, which determination shall be conclusive evidence of compliance with respect to such Asset Salethis provision) of the assets or Equity Interests issued or sold or otherwise disposed of; and
of and (2ii) at least 7585% of the consideration therefor received by the Company or such Restricted Subsidiary in such Asset Sale Sale, plus all other Asset Sales since the date of this Indenture, on a cumulative basis, is in the form of cash or Cash Equivalents; provided that any of the following items shall be deemed to be cash and Cash Equivalents for the purposes of this clause (2):
(a) the assumption amount of any liabilities (as shown on the Company’s 's or the such Restricted Subsidiary’s 's most recent balance sheet) ), of the Company or any Restricted Subsidiary of the Company (other than contingent liabilities and liabilities that are by their terms subordinated to the Notes issued under this Indenture or any Subsidiary Guaranteeguarantee thereof) that are assumed by the transferee of any such assets pursuant to a customary novation agreement that releases the Company or the such Restricted Subsidiary from further liability;
(b) any securities, notes or other obligations received by the Company or any such Restricted Subsidiary from such transferee that are converted by the Company or the Restricted Subsidiary into cash or Cash Equivalents within 180 days following their receipt (to the extent of cash or Cash Equivalents received); and
(c) any stock or assets of the kind referred to in clauses (b) and (d) of the next paragraph of this Section 4.10. Within 365 360 days after the receipt of any Net Proceeds from an Asset Sale, the Company or the Restricted Subsidiary, as the case may be, may apply such Net Proceeds, at its option:
: (a) to prepayreduce Senior Debt, repay, purchase, repurchase or redeem any secured Indebtedness of the Company or any Restricted Subsidiary of the Company;
(b) to acquire a controlling interest interests in another business or all or substantially all of the assets or operating line of another businessOil and Gas Business, in each case engaged in a Permitted Business;
(c) to make capital expenditures; or
expenditures in respect of the Company's or its Restricted Subsidiaries' Oil and Gas Business, (d) to acquire other nonpurchase long-current term assets that are used or useful in such Oil and Gas Business or (e) to be used in a Permitted Businessrepurchase any Notes. Pending the final application of any such Net Proceeds, the Company may temporarily reduce Indebtedness under any Credit Facility Senior Debt that is revolving debt or otherwise expend or invest such Net Proceeds in any manner that is not prohibited by this Indenture. Any Net Proceeds from Asset Sales described in this paragraph that are not applied or invested as provided in the first sentence of this paragraph shall (after the expiration of the periods specified in this Section 4.10 shall paragraph) be deemed to constitute “"Excess Asset Sale Proceeds.” " When the aggregate amount of Excess Asset Sale Proceeds exceeds $10.0 million, the Company will be required under this Indenture to shall make an offer to the Holders of Notes issued thereunder and the holders of any other Senior Indebtedness that is subject to requirements with respect to the application of net proceeds from asset sales that are substantially similar to those contained in this Indenture (an “Asset Sale Offer”) Offer to purchase on a pro rata basis (with the Excess Asset Sale Proceeds prorated between the Holders of the Notes and such holders of such other Senior Indebtedness based upon outstanding aggregate principal amounts) the maximum principal amount of the Notes and such any other Senior pari passu Indebtedness to which the Asset Sale Offer applies that may be purchased or prepaid, as applicable, out of the prorated Excess Asset Sale Proceeds, at an offer price in cash in an amount equal to to, in the case of the Notes, 100% of the principal amount thereof plus accrued and unpaid interest thereon to the date of purchase or, in the case of any other pari passu Indebtedness, 100% of the principal amount thereof (or with respect to discount pari passu Indebtedness, the accreted value thereof) on the date of purchase, in each case, in accordance with the procedures set forth in this IndentureSection 3.09 hereof or the agreements governing pari passu Indebtedness, as applicable. To the extent that the aggregate principal amount (or accreted value, as the case may be) of the Notes and other Senior pari passu Indebtedness tendered (and electing to be redeemed or repaid, as applicable) pursuant to an Asset Sale Offer is less than the Excess Asset Sale Proceeds, the Company and its Restricted Subsidiaries may use any remaining Excess Asset Sale Proceeds for general corporate purposes purposes. If the sum of (i) the aggregate principal amount of Notes surrendered by Holders thereof, and any (ii) the aggregate principal amount or accreted value, as the case may be, of other purpose not prohibited pari passu Indebtedness surrendered by this Indentureholders or lenders thereof, exceeds the amount of Excess Proceeds, the Trustee and the trustee or other lender representatives for the pari passu Indebtedness shall select the Notes and other pari passu Indebtedness to be purchased on a pro rata basis, based on the aggregate principal amount (or accreted value, as applicable) thereof surrendered in such Asset Sale Offer. Upon completion of the offer to purchasesuch Asset Sale Offer, the amount of Excess Asset Sale Proceeds shall 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 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, 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 the Company’s compliance with such securities laws or regulations.
Appears in 1 contract
Samples: Indenture (Range Resources Corp)
Asset Sales. The Company will not(a) Obligors shall not (i) sell, and will not permit lease, convey, or otherwise dispose of any assets or rights (including by way of a sale-and-leaseback) other than sales of inventory in the Ordinary Course of Business, (ii) with respect to Parent, sell Equity Interests in any of its Restricted Subsidiaries toSubsidiaries, consummate or (iii) with respect to Obligors other than Parent, issue Equity Interests (each of the foregoing, an “Asset Sale unless:
Sale”), unless (1y) the Company Parent (or the Restricted Subsidiaryother Obligor, as the case may be, ) receives consideration at the time of the such Asset Sale at least equal to the Fair Market Value fair market value (measured as evidenced by a resolution of the date Parent’s board of the definitive agreement with respect directors set forth in an Officer’s Certificate delivered to such Asset SaleAgent) of the assets or Equity Interests issued or sold or otherwise disposed of; and
of and (2z) at least 7575.0% of the consideration received in therefor by Parent or such Asset Sale other Obligor is in the form of cash or Cash Equivalents; provided that any of other Qualified Proceeds.
(b) Notwithstanding the foregoing, the following items shall not be deemed to be cash Asset Sales: (i) any single transaction or series of related transactions that (A) involves assets having a fair market value of less than $5,000,000 or (B) results in Net Proceeds to Parent and Cash Equivalents for its Subsidiaries of less than $5,000,000; (ii) a transfer of assets between or among Obligors, whether transferred directly to such Obligors or indirectly through a transfer to each parent company or Subsidiary of such Obligors which is ultimately and substantially contemporaneously with the purposes initial transfer thereof, transferred to such Obligors; (iii) an issuance of this clause Equity Interests by an Obligor other than Parent to Parent; (2):
(aiv) the assumption sale, lease, conveyance, or other disposition of any liabilities (as shown on the Company’s assets or the Restricted Subsidiary’s most recent balance sheet) of the Company or any Restricted Subsidiary of the Company rights (other than liabilities Accounts) by an Obligor to a Subsidiary that are is not an Obligor so long as the Specified Allowance Condition is satisfied; (v) the sale, lease, conveyance, or other disposition of Accounts by their terms subordinated an Obligor to Notes issued under this Indenture a Subsidiary that is not an Obligor so long as the Specified Allowance Condition is satisfied and no Specified Event of Default exists immediately before and after giving effect thereto; (vi) the sale, lease, conveyance, or other disposition of assets or rights by an Obligor in accordance with the 2018 Tax Restructuring; (vii) the sale, lease, conveyance, or other disposition of any Receivable Program Assets by any Subsidiary Guaranteeof Parent which is an Obligor other than a Borrower in connection with a Receivables Program; (viii) by the transferee sale, lease, conveyance, or other disposition of any such assets pursuant to inventory or other current assets, excluding Accounts, by any Obligor in the Ordinary Course of Business; (ix) the granting of a customary novation agreement that releases Permitted Lien; (x) the Company licensing by an Obligor of intellectual property in the Ordinary Course of Business or on commercially reasonable terms; (xi) (A) the sale, lease, conveyance, or other disposition of obsolete, surplus, discontinued, damaged, excess or worn out equipment or other property no longer useful in Obligors’ business or (B) the lapse of registered patents, trademarks and other intellectual property or the Restricted Subsidiary from further liability;
(b) any securities, notes or other obligations received by the Company or any such Restricted Subsidiary from such transferee that are converted by the Company or the Restricted Subsidiary into cash or Cash Equivalents within 180 days following their receipt (termination of license agreements related thereto to the extent not economically desirable in the conduct of the business; (xii) the making or liquidating of any Restricted Payment or Permitted Investment that is permitted by Section 10.2.2; (xiii) the disposition of cash or Cash Equivalents receivedin the ordinary course of business; (xiv) any condemnation or other eminent domain event or casualty event; (xv) the surrender or waiver of litigation rights or settlement, release or surrender of tort or other litigation claims of any kind if it is for the benefit of an Obligor (as determined in good faith by the board of directors of Parent); and(xvi) a concurrent purchase and sale or exchange of assets used in a Permitted Business between Obligors and another Person; provided that such assets received are of a comparable fair market value (as determined by the board of directors) to the assets exchanged and any cash received must be applied in accordance with this Section 10.2.5; (xvii) the issuance or sale of directors’ qualifying shares or shares or interests required to be held by foreign nationals pursuant to local law or the like; and (xviii) the sale or other disposition of the patents approved by Agent.
(c) Notwithstanding any stock or assets of the kind referred to in clauses (b) and (d) of the next paragraph other provision of this Section 4.10. Within 365 days after Agreement to the receipt contrary, no Obligor will enter into any Asset Sale or other sale, transfer, conveyance, or disposition of any Net Proceeds from an asset or other property, in each such case if such Asset Sale, the Company sale, transfer, conveyance, or the Restricted Subsidiary, as the case may be, may apply such Net Proceeds, at its option:
(a) to prepay, repay, purchase, repurchase or redeem any secured Indebtedness disposition is of the Company or any Restricted Subsidiary of the Company;
(b) to acquire a controlling interest in another business or all or substantially all of the assets or operating line other property which constitutes Collateral; provided that Obligors may (i) sell Inventory in the Ordinary Course of another businessBusiness, (ii) sell, transfer, convey or dispose of property and assets, including Collateral, among Borrowers, (iii) if no Event of Default exists, sell, transfer, convey, or dispose of Collateral consisting of Equipment and Inventory in each case engaged an aggregate amount not in a excess of $25,000,000 during the term of this Agreement, (iv) make Permitted Business;
Investments, (cv) to make capital expenditures; or
(d) to acquire other non-current assets to be used grant licenses of Intellectual Property in a Permitted Business. Pending the final application Ordinary Course of Business or on commercially reasonable terms, provided that the owner of any such Net Proceeds, Intellectual Property which is the Company may temporarily reduce Indebtedness under any Credit Facility or otherwise expend or invest such Net Proceeds in any manner that is not prohibited by this Indenture. Any Net Proceeds from Asset Sales described in this paragraph that are not applied or invested as provided in the first sentence of this paragraph of this Section 4.10 shall be deemed to constitute “Excess Asset Sale Proceeds.” When the aggregate amount of Excess Asset Sale Proceeds exceeds $10.0 million, the Company will be required under this Indenture to make an offer to the Holders of Notes issued thereunder and the holders subject of any other Senior Indebtedness that such license retains ownership of such Intellectual Property and any such license granted is subject to requirements with respect to the application Agent’s Liens, (vi) (A) sell, transfer, convey or dispose of net proceeds from asset sales obsolete, surplus, discontinued, damaged, excess or worn out Equipment or other property that are substantially similar to those contained in this Indenture (an “Asset Sale Offer”) to purchase on a pro rata basis (with the Excess Asset Sale Proceeds prorated between the Holders of the Notes and such holders of such other Senior Indebtedness based upon outstanding aggregate principal amounts) the maximum principal amount of the Notes and such other Senior Indebtedness that may be purchased or prepaid, as applicable, out of the prorated Excess Asset Sale Proceeds, at an offer price in cash is no longer useful in an amount equal to 100% Obligor’s business or (B) allow the lapse of the principal amount thereof plus accrued and unpaid interest thereon to the date of purchaseregistered patents, in accordance with the procedures set forth in this Indenture. To the extent that the aggregate principal amount of Notes trademarks and other Senior Indebtedness tendered (and electing to be redeemed intellectual property approved by Agent or repaidthe termination of license agreements related thereto, as applicable) pursuant to an Asset Sale Offer is less than the Excess Asset Sale Proceeds, the Company and its Restricted Subsidiaries may use any remaining Excess Asset Sale Proceeds for general corporate purposes and any other purpose not prohibited by this Indenture. Upon completion of the offer to purchase, the amount of Excess Asset Sale Proceeds shall 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 not economically desirable in connection the conduct of the business with an Asset Sale Offer. To approval by Agent, (vii) dispose of cash or Cash Equivalents in the extent that the provisions ordinary course of business, (viii) surrender or waive litigation rights or settle, release or surrender tort or other litigation claims of any securities laws kind if it is for the benefit of an Obligor (as determined in good faith by the board of directors of Parent), and (ix) sell or regulations conflict with the provisions otherwise dispose of 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 this Section 4.10 any patents approved by virtue of the Company’s compliance with such securities laws or regulationsAgent.
Appears in 1 contract
Samples: Loan and Security Agreement (Amkor Technology, Inc.)
Asset Sales. (a) The Company will shall not, and will shall not permit any of its Restricted Subsidiaries to, consummate an Asset Sale Sale, unless:
(1i) the The Company or the any such Restricted Subsidiary, as the case may be, receives consideration at the time of the such Asset Sale at least equal to the Fair Market Value fair market value (measured as of determined in good faith by the date of the definitive agreement with respect to such Asset SaleCompany) of the assets or Equity Interests issued or sold or otherwise disposed of; and
and (2ii) except in the case of a Permitted Asset Swap or the disposition of any property the disposition of which is necessary for the Company to qualify, or to maintain its qualification, as, a REIT for U.S. federal income tax purposes, in each case, in the Company’s good faith determination, at least 75% of the consideration therefor received in by the Company or any such Asset Sale Restricted Subsidiary, as the case may be, is in the form of cash or Cash Equivalents; provided that any of the following items shall be deemed to be cash and Cash Equivalents for the purposes of this clause (2):amount of:
(aA) the assumption of any liabilities (as shown on the Company’s or the Restricted Subsidiary’s most recent consolidated balance sheet or in the footnotes thereto, or if incurred or accrued subsequent to the date of such balance sheet, such liabilities that would have been 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 such Restricted Subsidiary of the Company (other than Contingent Obligations and liabilities that are by their terms subordinated to the Notes issued under this Indenture or any Subsidiary Guarantee) that are assumed by the transferee of any such assets pursuant (or are otherwise extinguished by the transferee in connection with the transactions relating to a customary novation agreement that releases such Asset Sale) or are acquired and extinguished by the Company or the such Restricted Subsidiary from and, in each case, for which the Company, and all such Restricted Subsidiaries shall have no further liability;obligation with respect thereto,
(bB) any securities, notes or other obligations or securities received by the Company or any such Restricted Subsidiary from such transferee that are converted by the Company or the such Restricted Subsidiary into cash or Cash Equivalents, or by their terms are required to be satisfied for cash or Cash Equivalents within 180 days following their receipt (to the extent of the cash or Cash Equivalents received); , in each case, within 180 days following the closing of such Asset Sale,
(C) 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 in good faith by the Company), taken together with all other Designated Non-cash Consideration received pursuant to this clause (c) that is at that time outstanding (but, to the extent that any such Designated Non-cash Consideration is sold or otherwise liquidated for cash, minus the lesser of (a) the amount of the cash received (less the cost of disposition, if any) and (b) the initial amount of such Designated Non-cash Consideration) not to exceed the greater of (x) $350.0 million and (y) 7.50% of Total Assets, with the fair market value (as determined in good faith by the Company) of each item of Designated Non-cash Consideration being measured at the time received and without giving effect to subsequent changes in value, and
(cD) any stock Capital Stock or assets of the kind referred to described in clauses (bA) and (dD) of the next paragraph Section 4.10(b)(ii) hereof shall be deemed to be cash for purposes of this Section 4.10. provision and for no other purpose.
(b) Within 365 450 days after the receipt of any Net Proceeds from an of any Asset Sale, the Company or the such Restricted Subsidiary, at its option, may apply an amount equal to the Net Proceeds from such Asset Sale,
(i) to permanently reduce:
(A) Obligations under the Senior Credit Facilities and to correspondingly reduce commitments with respect thereto;
(B) Obligations under Pari Passu Indebtedness that is secured by a Lien, including the Secured Notes, which Lien is permitted by this Indenture, and to correspondingly reduce commitments with respect thereto;
(C) Obligations under the Notes or any other Pari Passu Indebtedness of an Issuer or a Guarantor (and to correspondingly reduce commitments with respect thereto, if applicable); provided that if such Net Proceeds are applied to other Pari Passu Indebtedness (other than any Pari Passu Indebtedness described in clause (A) or (B) above) then the Issuers shall (i) equally and ratably reduce Obligations under the Notes (x) as provided under Section 3.07 or (y) through open market purchases or (ii) make an offer (in accordance with Section 4.10(c) hereof) to all Holders of Notes to purchase their Notes at 100% of the principal amount thereof, plus the amount of accrued but unpaid interest, if any, on the principal amount of Notes that would otherwise be redeemed under clause (i), or
(D) Indebtedness of a Non-Guarantor Subsidiary, other than Indebtedness owed to the Company or another Restricted Subsidiary; 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 another of its Restricted Subsidiaries, as the case may be, may apply owning an amount of the Capital Stock of such business such that it constitutes a Restricted Subsidiary, (B) acquire properties (other than Capital Stock), (C) make capital expenditures or (D) acquire other assets (other than Capital Stock) that, in the case of each of (A), (B), (C) and (D) are either (x) used or useful in a Similar Business or (y) replace the businesses, properties and/or assets that are the subject of such Asset Sale; provided that, in the case of clause (ii) 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 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”); provided further that if any Acceptable Commitment is later cancelled or terminated for any reason before such Net Proceeds are applied, then such Net Proceeds shall constitute Excess Proceeds, at its option:
; or (aiii) to prepay, repay, purchase, repurchase or redeem any secured Indebtedness combination of the Company or any Restricted Subsidiary of the Company;
(b) to acquire a controlling interest in another business or all or substantially all of the assets or operating line of another business, in each case engaged in a Permitted Business;foregoing.
(c) to make capital expenditures; or
(d) to acquire other non-current assets to be used in a Permitted Business. Pending the final application of any such Net Proceeds, the Company may temporarily reduce Indebtedness under any Credit Facility or otherwise expend or invest such Net Proceeds in any manner that is not prohibited by this Indenture. Any Net Proceeds from an Asset Sales described in this paragraph Sale that are not invested or applied or invested as provided and within the time period set forth in the first sentence of this paragraph of this Section 4.10 shall 4.10(b) will be deemed to constitute “Excess Asset Sale Proceeds.” When the aggregate amount of Excess Asset Sale Proceeds exceeds $10.0 75.0 million, the Company will be required under this Indenture to or any Restricted Subsidiary shall make an offer to the all Holders of Notes issued thereunder and and, if required by the terms of any Pari Passu Indebtedness, to the holders of any other Senior such Pari Passu Indebtedness that is subject to requirements with respect to the application of net proceeds from asset sales that are substantially similar to those contained in this Indenture (an “Asset Sale Offer”) to purchase on a pro rata basis (with the Excess Asset Sale Proceeds prorated between the Holders of the Notes and such holders of such other Senior Indebtedness based upon outstanding aggregate principal amounts) the maximum aggregate principal amount of the Notes in minimum denominations of $2,000 and integral multiples of $1,000 in excess thereof and such other Senior Pari Passu Indebtedness that may be purchased or prepaid, as applicable, out of the prorated Excess Asset Sale Proceeds, Proceeds at an offer price in cash in an amount equal to 100% of the principal amount thereof thereof, plus accrued and unpaid interest thereon interest, if any (or, in respect of such Pari Passu Indebtedness, such lesser price, if any, as may be provided for or permitted by the terms of such Pari Passu Indebtedness), to the date fixed for the closing of purchasesuch offer, in accordance with the procedures set forth in this Indenture. .
(d) The Issuers shall commence an Asset Sale Offer with respect to Excess Proceeds within fifteen (15) Business Days after the date that Excess Proceeds exceed $75.0 million by electronically delivering or mailing the notice required pursuant to the terms of this Indenture, with a copy to the Trustee.
(e) To the extent that the aggregate principal amount of Notes and other Senior such Pari Passu Indebtedness tendered (and electing to be redeemed or repaid, as applicable) pursuant to an Asset Sale Offer is less than the Excess Asset Sale Proceeds, the Company and its Restricted Subsidiaries Issuers may use any remaining Excess Asset Sale Proceeds (the “Declined Excess Proceeds”) for general corporate purposes purposes, subject to Section 4.10(f) below and any the other purpose not prohibited by covenants contained in this Indenture. If the aggregate amount (determined as above) of Notes and the Pari Passu Indebtedness surrendered in an Asset Sale Offer exceeds the amount of Excess Proceeds, the Trustee shall select the Notes and the Issuers or the agent for such Pari Passu Indebtedness shall select such Pari Passu Indebtedness to be purchased (i) if the Notes or such Pari Passu Indebtedness are listed on any national securities exchange, in compliance with the requirements of the principal national securities exchange on which the Notes or such Pari Passu Indebtedness, as applicable, are listed, (ii) on a pro rata basis based on the amount (determined as set forth above) of the Notes and such Pari Passu Indebtedness tendered or (iii) by lot or such similar method in accordance with the procedures of DTC; provided that no Notes of $2,000 or less shall be repurchased in part. Upon completion of the offer to purchaseany such Asset Sale Offer, the amount of Excess Asset Sale Proceeds shall be reset at zero. .
(f) 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.
(g) The Company will Issuers shall comply with the requirements of Rule 14e-1 under the Exchange Act and any other securities laws and regulations thereunder to the extent such laws and or regulations are applicable in connection with the repurchase of 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 Section 4.10Indenture, the Company will Issuers shall comply with the applicable securities laws and regulations and will shall not be deemed to have breached its obligations under described in this Section 4.10 Indenture by virtue of the Company’s compliance with such securities laws or regulationsthereof.
Appears in 1 contract
Samples: Indenture (Uniti Group Inc.)
Asset Sales. The Company will not, and will not permit any of its Restricted Subsidiaries to, consummate an Asset Sale unless:
(1) the Company or the Restricted Subsidiary, as the case may be, Subsidiary receives consideration at the time of the Asset Sale at least equal to the Fair Market Value (measured as of the date of the definitive agreement with respect to such Asset Sale) fair market value of the assets or Equity Interests issued or sold or otherwise disposed of;
(2) the fair market value (including the fair market value of any non-cash assets transferred or liabilities assumed) is determined by the Company's Board of Directors and evidenced by a resolution of the such Board of Directors set forth in an Officers' Certificate delivered to the Trustee; and
(23) at least 75% of the consideration received in such the Asset Sale by the Company or such Restricted Subsidiary is in the form of cash or Cash Equivalents; provided that any cash. For purposes of this provision, each of the following items shall be deemed to be cash and Cash Equivalents for the purposes of this clause (2):cash:
(aA) the assumption of any liabilities (liabilities, as shown on the Company’s or the Restricted Subsidiary’s 's most recent consolidated balance sheet) , of the Company or any Restricted Subsidiary of the Company (other than contingent liabilities and liabilities that are by their terms subordinated to the Notes issued under this Indenture or any Subsidiary Guarantee) that are assumed by the transferee of any such assets pursuant and are (i) subject to a customary novation agreement that releases the Company or the such Restricted Subsidiary from further liabilityliability with respect to any such liabilities other than accounts payable or (ii) satisfied in full within 60 days of the Asset Sale;
(bB) any securities, notes or other obligations received by the Company or any such Restricted Subsidiary from such transferee that are converted in respect of which cash is received by the Company or such Restricted Subsidiary within 60 days of the Asset Sale, to the extent of the cash received;
(C) in the case of the sale of all of the Equity Interests in any of the Company's Restricted Subsidiaries, or the merger of a Restricted Subsidiary with a Person as a result of which the Company and its Restricted Subsidiaries do not own any of the Equity Interests in the surviving entity of such merger, any liabilities of the Restricted Subsidiary into (other than contingent liabilities and liabilities that are by their terms subordinated to the Notes or any Subsidiary Guarantee) for which the Restricted Subsidiary or surviving entity remains liable after the Asset Sale;
(D) cash held in escrow as security for any purchase price settlement, for damages in respect of a breach of representations and warranties or covenants or for payment of other contingent obligations in connection with the Asset Sale; and
(E) up to $25.0 million of non-cash consideration received from any person other than an Affiliate of the Company outstanding (not converted to cash) at any time. Notwithstanding the immediately preceding paragraph, the Company and its Restricted Subsidiaries will be permitted to consummate an Asset Sale without complying with such paragraph if:
(1) The Company or the applicable Restricted Subsidiary, as the case may be, receives consideration at the time of such Asset Sale at least equal to the fair market value of the assets or other property sold, issued or otherwise disposed of, as evidenced by a resolution of the Board of Directors of the Company set forth in an Officers' Certificate delivered to the Trustee, and
(2) at least 75% of the consideration for such Asset Sale constitutes cash or Cash Equivalents within 180 days following their receipt assets that are not classified as current assets under GAAP and are used or useful in a Permitted Business; provided that any cash received by the Company or any of its Restricted Subsidiaries in connection with any Asset Sale permitted to be consummated under this paragraph will constitute Net Proceeds (to the extent not excluded from the definition of cash or Cash Equivalents received); and
(c"Net Proceeds") any stock or assets subject to the provisions of the kind referred to in clauses (b) and (d) of the next paragraph of this Section 4.10three succeeding paragraphs. Within 365 days after the receipt of any Net Proceeds from an Asset Sale, the Company or the Restricted Subsidiary, as the case may be, Subsidiary may apply such those Net Proceeds, Proceeds at its optionoption to any one or more of the following:
(a1) to prepayrepay Senior Debt and, repayif the Senior Debt repaid is revolving credit Indebtedness, purchase, repurchase or redeem any secured Indebtedness of the Company or any Restricted Subsidiary of the Companyto correspondingly reduce commitments with respect thereto;
(b2) to acquire a controlling interest in another business or all or substantially all of the assets of, or operating line a majority of the Voting Stock of, another business, in each case engaged in a Permitted Business;
(c3) to make capital expenditures; or
(d4) to acquire other non-assets that are not classified as current assets to be under GAAP and are used or useful in a Permitted Business. Pending the final application of any such Net Proceeds, the Company or any Restricted Subsidiary may temporarily reduce Indebtedness under any Credit Facility revolving credit borrowings or otherwise expend or invest such the Net Proceeds in any manner that is not prohibited by this Indenture. Any Net Proceeds from Asset Sales described in this paragraph that are not applied or invested as provided in the first sentence of this preceding paragraph of this Section 4.10 shall be deemed to will constitute “"Excess Asset Sale Proceeds.” When " Within 30 days after the aggregate amount of Excess Asset Sale Proceeds exceeds $10.0 million, the Company will be required under this Indenture to make an offer Asset Sale Offer to the all Holders of Notes issued thereunder and the all holders of any other Senior Indebtedness that is subject pari passu with the Notes containing provisions similar to requirements those set forth in this Indenture with respect to the application of net proceeds from asset sales that are substantially similar to those contained in this Indenture (an “Asset Sale Offer”) offers to purchase on a pro rata basis (or redeem with the Excess Asset Sale Proceeds prorated between the Holders proceeds of the Notes and such holders sales of such other Senior Indebtedness based upon outstanding aggregate principal amounts) assets to purchase the maximum principal amount of the Notes and such other Senior pari passu Indebtedness that may be purchased or prepaid, as applicable, out of the prorated Excess Asset Sale Proceeds, at an . The offer price in cash in an amount any Asset Sale Offer will be equal to 100% of the principal amount thereof plus accrued and unpaid interest thereon and Liquidated Damages, if any, to the date of purchase, and will be payable in accordance with cash. If any Excess Proceeds remain after consummation of an Asset Sale Offer, the procedures set forth in Company may use those Excess Proceeds for any purpose not otherwise prohibited by this Indenture. To the extent that If the aggregate principal amount of Notes and other Senior pari passu Indebtedness tendered (and electing to be redeemed or repaid, as applicable) pursuant to an into such Asset Sale Offer is less than exceeds the amount of Excess Asset Sale Proceeds, the Company Trustee will select the Notes and its Restricted Subsidiaries may use any remaining Excess Asset Sale Proceeds for general corporate purposes and any such other purpose not prohibited by this Indenturepari passu Indebtedness to be purchased on a pro rata basis based upon the aggregate principal amount of each that was properly tendered. Upon completion of the offer to purchaseeach Asset Sale Offer, the amount of Excess Asset Sale Proceeds shall will be reset at zero. The Company will comply with the requirements of Rule 14e-1 under the Exchange Act and any other securities laws and regulations thereunder to the extent such those laws and regulations are applicable in connection with 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 not be required to comply with the applicable securities laws and regulations such provisions and will not be deemed to have breached its obligations under this Section 4.10 such provisions by virtue reason of the Company’s compliance with such securities laws or regulationsnoncompliance.
Appears in 1 contract
Asset Sales. (a) The Company will shall not, and will shall not permit any of its the Restricted Subsidiaries to, directly or indirectly, consummate an Asset Sale unless:
(1i) 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 (measured as of the date of the definitive agreement with respect to such Asset Sale) fair market value of the assets or Equity Interests issued or sold or otherwise disposed ofof (except in respect of Designated Assets sold pursuant to a Designated Asset Contract);
(ii) the fair market value or Designated Asset Value, as applicable, in the case of any Asset Sales or series of related Asset Sales having a fair market value of $50.0 million or more, is determined by the Company’s Board of Directors and evidenced by a resolution of the Company’s Board of Directors set forth in an Officers’ Certificate delivered to the Trustee; and
(2iii) at least 75% of the consideration received in such the Asset Sale by the Company or such Restricted Subsidiary is in the form of cash or Cash Equivalents; provided that any . For purposes of this Section 4.10(a)(iii) only, each of the following items shall will be deemed to be cash and Cash Equivalents for the purposes of this clause (2):cash:
(a1) the assumption of any liabilities (liabilities, as shown on the Company’s or the such Restricted Subsidiary’s most recent balance sheet) , of the Company or any Restricted Subsidiary of the Company (other than contingent liabilities and liabilities that are by their terms subordinated to the Notes issued under this Indenture or any Subsidiary Note Guarantee) that are assumed by the transferee of any such assets pursuant to a customary novation agreement that releases the Company or the such Restricted Subsidiary from further liability;
(b2) any securities, notes or other obligations received by the Company or any such Restricted Subsidiary from such transferee that are converted by the Company or the such Restricted Subsidiary into cash or Cash Equivalents within 180 ninety (90) days following their receipt (after the applicable Asset Sale, to the extent of the cash or Cash Equivalents receivedreceived in that conversion;
(3) notes or other obligations or Indebtedness actually received by the Company or any such Restricted Subsidiary as consideration for the sale or other disposition of a Designated Asset pursuant to a contract with a governmental or quasi- governmental agency, but only to the extent that such notes or other obligations or Indebtedness were explicitly required to be included, or permitted to be included solely at the option of the purchaser, in such consideration pursuant to such contract;
(4) 100% of Indebtedness actually received by the Company or any Restricted Subsidiary as consideration for the sale or other disposition of an Unoccupied Facility; and
(5) any Designated Non-Cash Consideration received by the Company or any such Restricted Subsidiary in the Asset Sale, in an aggregate amount in any fiscal year of the Company (measured on the date such Designated Non-Cash Consideration was received without giving effect to subsequent changes in value), when taken together with all other Designated Non-Cash Consideration received as consideration pursuant to this clause (5) during such fiscal year (but, to the extent that any such Designated Non-Cash Consideration is sold or otherwise liquidated for cash, minus the lesser of (x) the amount of the cash received (less the cost of disposition, if any) and (y) the initial amount of such Designated Non-Cash Consideration), not to exceed $150.0 million.
(b) Notwithstanding the foregoing, the Company and the Restricted Subsidiaries may engage in Asset Swaps; provided that:
(i) immediately after giving effect to such Asset Swap, the Company would be permitted to incur at least $1.00 of additional Indebtedness pursuant to the Fixed Charge Coverage Ratio test set forth in Section 4.09(a); and
(ii) the Board of Directors of the Company determines that the fair market value of the assets received by the Company or the Restricted Subsidiary in the Asset Swap is not less than the fair market value of the assets disposed of by the Company or such Restricted Subsidiary in such Asset Swap and such determination is evidenced by a resolution of the Board of Directors of the Company set forth in an Officers’ Certificate delivered to the Trustee.
(c) any stock or assets of the kind referred to in clauses (b) and (d) of the next paragraph of this Section 4.10. Within 365 360 days after the receipt of any Net Proceeds from an Asset Sale, the Company or the applicable Restricted Subsidiary, as the case may be, Subsidiary may apply such those Net Proceeds, at its option:
(i) (a) to permanently reduce, prepay, repay, satisfy and discharge, or purchase, repurchase as applicable, Indebtedness under the Notes or redeem any secured First Lien Secured Obligations (other than the Notes), including Indebtedness under the Credit Agreement, and if applicable, to correspondingly reduce commitments with respect thereto; provided, however, that (x) to the extent that the terms of such First Lien Secured Obligations (other than the Notes) require Net Proceeds to repay Indebtedness outstanding under such First Lien Secured Obligations prior to the repayment of other First Lien Secured Obligations, the Company or any the applicable Restricted Subsidiary of the Company;
(b) shall be entitled to acquire a controlling interest in another business or all or substantially all of the assets or operating line of another business, in each case engaged in a Permitted Business;
(c) repay such First Lien Secured Obligations prior to make capital expenditures; or
(d) to acquire other non-current assets to be used in a Permitted Business. Pending the final application of any such Net Proceeds, the Company may temporarily reduce repaying Indebtedness under any Credit Facility or otherwise expend or invest such Net Proceeds in any manner that is not prohibited by this Indenture. Any Net Proceeds from Asset Sales described in this paragraph that are not applied or invested the Notes and (y) except as provided in the first sentence of this paragraph of this Section 4.10 shall be deemed foregoing subclause (x), to constitute “Excess Asset Sale Proceeds.” When the aggregate amount of Excess Asset Sale Proceeds exceeds $10.0 millionextent the Company or the applicable Restricted Subsidiary so reduces any other First Lien Secured Obligations, the Company will be required shall (i) equally and ratably reduce Obligations under this Indenture to make an offer to the Holders of Notes issued thereunder and the holders of any other Senior Indebtedness that is subject to requirements with respect to the application of net proceeds from asset sales that are substantially similar to those contained in this Indenture (an “Asset Sale Offer”) to purchase on a pro rata basis (with the Excess Asset Sale Proceeds prorated between the Holders of the Notes and (A) as provided under Section 3.07 or (B) through open market purchases (provided that such holders of such other Senior Indebtedness based upon outstanding aggregate principal amounts) the maximum principal amount of the Notes and such other Senior Indebtedness that may be purchased purchases are at or prepaid, as applicable, out of the prorated Excess Asset Sale Proceeds, at an offer price in cash in an amount equal to above 100% of the principal amount thereof plus accrued and unpaid interest thereon to the date of purchase, thereof) or (ii) make an offer (in accordance with the procedures set forth in this Indenture. To the extent that the aggregate principal amount of Notes and other Senior Indebtedness tendered (and electing to be redeemed or repaid, as applicable) pursuant to an Asset Sale Offer is less than the Excess Asset Sale Proceeds, the Company and its Restricted Subsidiaries may use any remaining Excess Asset Sale Proceeds below for general corporate purposes and any other purpose not prohibited by this Indenture. Upon completion of the offer to purchase, the amount of Excess Asset Sale Proceeds shall 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 an Asset Sale Offer. To the extent that the provisions ) to all Holders of any securities laws or regulations conflict with the provisions of this Section 4.10, the Company will comply with the applicable securities laws and regulations and will not be deemed Notes to have breached its obligations under this Section 4.10 by virtue purchase their Notes at 100% of the Company’s compliance with principal amount thereof, plus the amount of accrued but unpaid interest, if any, on the principal amount of such securities laws or regulations.Notes that would otherwise be redeemed under clause (i); or
Appears in 1 contract
Samples: Indenture (Geo Group Inc)
Asset Sales. The Company will not, and will not permit any of its Restricted Subsidiaries to, consummate engage in an Asset Sale unless:
unless (1i) the Company or the such Restricted Subsidiary, as the case may be, receives consideration at the time of the such Asset Sale at least equal to the Fair Market Value (measured as of the date of the definitive agreement with respect to such Asset Sale) of the assets or Equity Interests issued or sold or otherwise disposed of; and
of and (2ii) at least 75% of the consideration therefor received in by the Company or such Asset Sale Restricted Subsidiary is in the form of of, or any combination of, (A) cash or Cash Equivalents; provided that any of the following items shall be deemed to be cash and Cash Equivalents for the purposes of this clause , (2):
(aB) the assumption of any liabilities (as shown on the Company’s 's or the such Restricted Subsidiary’s 's most recent balance sheet) of the Company or any Restricted Subsidiary of the Company (other than liabilities that are by their terms subordinated to the Notes issued under this Indenture or any Subsidiary Guarantee) by the transferee of any such assets pursuant to a customary novation agreement that releases the Company or the such Restricted Subsidiary from further liability;
liability and (bC) any securities, notes or other obligations received by the Company or any such Restricted Subsidiary from such transferee that are converted by the Company or the such Restricted Subsidiary into cash or Cash Equivalents within 180 30 days following their receipt (to the extent of the cash or Cash Equivalents received); and
(c) provided, that any stock Asset Sale pursuant to a condemnation, appropriation or assets other similar taking, including by deed in lieu of condemnation, or pursuant to the kind referred foreclosure or other enforcement of a Lien incurred not in violation of Section 4.12 hereof 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 (bi) and (dii) of the next paragraph of this Section 4.10paragraph. Within 365 days after the receipt of any Net Proceeds from an Asset Sale, the Company or the such Restricted Subsidiary, as the case may be, may apply such Net Proceeds, at its option:
, (a) to prepaypermanently repay term loans that constitute Senior Debt, repayand if no term Senior Debt is outstanding at such time, purchaseto repay outstanding revolving borrowings that constitute Senior Debt, repurchase or redeem any secured Indebtedness of the Company or any Restricted Subsidiary of the Company;
(b) to acquire a controlling interest in another business or all or substantially all of the assets or operating line of another a business, in each case engaged in a Permitted Business;
, or (c) to make capital expenditures; or
(d) to acquire other non-current assets to be used in a Permitted Business, including, without limitation, assets or Investments of the nature or type described in clause (m) of the definition "Permitted Investments," provided that the Company or such Restricted Subsidiary will have complied with clause (b) or (c) if, within 365 days of such Asset Sale, the Company or such Restricted Subsidiary shall have commenced and not completed or abandoned an expenditure or Investment, or a binding agreement with respect to an expenditure or Investment, in compliance with clause (b) or (c) and such 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 such Net Proceeds, the Company may temporarily reduce Indebtedness under any Credit Facility or otherwise expend or invest such Net Proceeds in any manner that is not prohibited by this the Indenture. Any Net Proceeds from Asset Sales described in this paragraph that are not applied or invested as provided in the first sentence of this paragraph of this Section 4.10 shall be deemed to constitute “"Excess Asset Sale Proceeds.” " When the aggregate amount of Excess Asset Sale Proceeds exceeds $10.0 million, the Company will be required under this Indenture to make an offer to the Holders of Notes issued thereunder and the holders of any other Senior Indebtedness that is subject to requirements with respect to the application of net proceeds from asset sales that are substantially similar to those contained in this Indenture (an “Asset Sale Offer”) to purchase on a pro rata basis (with the Excess Asset Sale Proceeds prorated between the Holders of the Notes and such holders of such other Senior Indebtedness based upon outstanding aggregate principal amounts) the maximum principal amount of the Notes and such other Senior Indebtedness that may be purchased or prepaid, as applicable, out of the prorated Excess Asset Sale 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. To the extent that the aggregate principal amount of Notes and other Senior Indebtedness tendered (and electing to be redeemed or repaid, as applicable) pursuant to an Asset Sale Offer is less than the Excess Asset Sale Proceeds, the Company and its Restricted Subsidiaries may use any remaining Excess Asset Sale Proceeds for general corporate purposes and any other purpose not prohibited by this Indenture. Upon completion of the offer to purchase, the amount of Excess Asset Sale Proceeds shall 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 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, 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 the Company’s compliance with such securities laws or regulations.the
Appears in 1 contract
Samples: Indenture (Victory Finance Inc)
Asset Sales. The Company will shall not, and will shall not permit any of its Restricted Subsidiaries to, consummate an Asset Sale unless:
unless (1a) the Company or the such Restricted Subsidiary, as the case may be, receives consideration at the time of the such Asset Sale at least equal to the Fair Market Value fair market value (measured as determined in accordance with the definition of such term, the date results of which determination shall be set forth in an Officers’ Certificate delivered to the definitive agreement with respect to such Asset SaleTrustee) of the assets or Equity Interests issued or sold or otherwise disposed of; and
of and (2b) for Asset Sales other than a Qualifying Business Disposal, at least 75% of the consideration therefor received in by the Company or such Asset Sale Restricted Subsidiary is in the form of cash or Cash Equivalents; provided , provided, however, that any the amount of the following items shall be deemed to be cash and Cash Equivalents for the purposes of this clause (2):
(ai) the assumption of any liabilities (as shown on the Company’s or the such Restricted Subsidiary’s most recent balance sheet) of the Company or any such Restricted Subsidiary of the Company (other than contingent liabilities and liabilities that are by their terms subordinated to the Notes issued under this Indenture or any Subsidiary Guaranteeguarantee thereof) that are assumed by the transferee of any such assets pursuant to a customary novation agreement that releases the Company or the such Restricted Subsidiary from further liability;
, (bii) any securities, notes or other obligations received by the Company or any such Restricted Subsidiary from such transferee that are converted within 180 days by the Company or the such Restricted Subsidiary into cash or Cash Equivalents within 180 days following their receipt (to the extent of the cash or Cash Equivalents received); and
(c) any stock or assets of the kind referred to received in clauses (bthat conversion) and (diii) any Designated Non-Cash Consideration received by the Company or any Restricted Subsidiary in such Asset Sale having an aggregate fair market value (determined in accordance with the definition of such term under Section 1.01, the next paragraph results of which determination shall be set forth in an Officers’ Certificate delivered to the Trustee) taken together with all other Designated Non-Cash Consideration received pursuant to this covenant that is at that time outstanding, not to exceed the greater of $20,000,000 (with the fair market value of each item of Designated Non-Cash Consideration being measured at the time received and without giving effect to subsequent changes in value) shall be deemed to be cash for purposes of this Section 4.10. Within 365 days after the receipt of any Net Proceeds from an Asset Sale, the Company or the any such Restricted Subsidiary, as the case may be, Subsidiary may apply such Net Proceeds, at its option:
Proceeds to (a) to prepay, repay, purchase, repurchase permanently repay the principal of First Lien Obligations or redeem any other secured Indebtedness of the Company or any a Restricted Subsidiary of that is secured by a Lien that is senior to the Company;
Lien securing the Notes (b) to acquire a controlling interest in another business or all or substantially all permanently repay the principal of any Indebtedness of the assets Company ranking in right of payment at least pari passu with the Notes or operating line any Indebtedness of another businessa Restricted Subsidiary (provided that if such Restricted Subsidiary is a Guarantor then such Indebtedness shall rank in right of payment at least pari passu with its Subsidiary Guarantee), in each case engaged in a Permitted Business;
(c) to make capital expenditures; or
expenditures in respect of Strategic Assets, or (d) acquire (including by way of a purchase of assets or a majority of the Voting Stock of a Person, by merger, by consolidation or otherwise) Strategic Assets, provided that if the Company or such Restricted Subsidiary enters into a binding agreement to acquire other nonsuch Strategic Assets within such 365-current assets day period, but the consummation of the transactions under such agreement has not occurred within such 365-day period and such agreement has not been terminated, then such 365-day period shall be extended by 90 days to permit such consummation. If such consummation shall not occur, or such agreement shall be used terminated within such 90-day extension period, then the Company may apply, or cause such Restricted Subsidiary to apply, within 90 days after the end of such initial 90-day extension period or the effective date of such termination, whichever is earlier, such Net Proceeds as provided in a Permitted Businessclauses (a) through (d) of this paragraph. Pending the final application of any such Net Proceeds, the Company or any such Restricted Subsidiary may temporarily reduce Indebtedness outstanding revolving credit borrowings, including borrowings under any the Credit Facility Facilities, or otherwise expend or invest such Net Proceeds in any manner that is not prohibited by this Indenture. Any Net Proceeds from Asset Sales described in this paragraph that are not applied or invested as provided in the first sentence clauses (a) through (d) of this paragraph of this Section 4.10 shall be deemed to constitute “Excess Asset Sale Proceeds.” When Within 30 days of each date on which the aggregate amount of Excess Asset Sale Proceeds exceeds $10.0 million20,000,000, the Company will be required under this Indenture to make shall commence an offer to the Holders of Notes issued thereunder and the holders of any other Senior Indebtedness that is subject to requirements with respect to the application of net proceeds from asset sales that are substantially similar to those contained in this Indenture (an “Asset Sale Offer”) Offer pursuant to Section 3.09 hereof to purchase on a pro rata basis (with the Excess Asset Sale Proceeds prorated between the Holders of the Notes and such holders of such other Senior Indebtedness based upon outstanding aggregate principal amounts) the maximum principal amount of the Notes and such other Senior Indebtedness that may be purchased or prepaid, as applicable, out of the prorated Excess Asset Sale Proceeds, Proceeds at an offer price in cash in an amount equal to 100% of the principal amount thereof thereof, plus accrued and unpaid interest thereon thereon, to the date of purchase, in accordance with the procedures set forth in this IndentureSection 3.09 hereof; provided, however, that, if the Company is required to apply such Excess Proceeds to purchase, or to offer to purchase, any Pari Passu Indebtedness, the Company shall only be required to offer to purchase the maximum principal amount of Notes that may be purchased out of the amount of such Excess Proceeds multiplied by a fraction, the numerator of which is the aggregate principal amount of Notes outstanding and the denominator of which is the aggregate principal amount of Notes outstanding plus the aggregate principal amount of Pari Passu Indebtedness outstanding. To the extent that the aggregate principal amount of Notes and other Senior Indebtedness tendered (and electing to be redeemed or repaid, as applicable) pursuant to an Asset Sale Offer is less than the Excess Asset Sale Proceedsamount that the Company is required to purchase, the Company and its Restricted Subsidiaries may use any remaining Excess Asset Sale Proceeds for general corporate purposes and in any other purpose manner not prohibited by this Indenture. If the aggregate principal amount of Notes surrendered by holders thereof exceeds the amount that the Company is required to purchase, the Trustee shall select the Notes to be purchased on a pro rata basis, in accordance with the procedures of the applicable depository, if any (with such adjustments as may be deemed appropriate by the Trustee so that only Notes in Permitted Denominations shall be purchased). Upon completion of the such offer to purchase, the amount of Excess Asset Sale Proceeds shall be reset at zero. The Company will shall not, and shall not permit any Restricted Subsidiary to, enter into or suffer to exist any agreement (other than the First Lien Notes (including any Permitted Refinancing Indebtedness thereof), the Intercreditor Agreement or any agreement governing the Company’s or any Restricted Subsidiary’s Credit Facilities) 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. 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 the purchase of Notes as a result of an Asset Sale Offer. To the extent that the provisions of any securities laws or regulations conflict with the provisions of this Section 4.10relating to the Asset Sale Offer, the Company will shall comply with the applicable securities laws and regulations and will shall not be deemed to have breached its obligations under this Section 4.10 described above by virtue of the Company’s compliance with such securities laws or regulationsthereof.
Appears in 1 contract
Samples: Indenture (CGG Marine B.V.)
Asset Sales. (a) The Company will shall not, and will shall not permit any of its Restricted Subsidiaries to, consummate an Asset Sale unless:
(1) the Company or the Restricted Subsidiary, as the case may be, receives consideration at the time of the Asset Sale at least equal to the Fair Market Value (measured as determined by the Company’s Board of Directors and evidenced by a resolution of the date Board of Directors set forth in an Officers’ Certificate delivered to the definitive agreement with respect Trustee as to such Asset SaleSales having a Fair Market Value of $50.0 million or greater) of the assets or Equity Interests issued or sold or otherwise disposed of; and
(2) at least 75% of the consideration received in such the Asset Sale by the Company or such Restricted Subsidiary is in the form of cash or Cash Equivalents; provided that any , publicly traded equity securities of a Person with a market capitalization (not held by Affiliates of such Person) of at least $500 million or a controlling interest in, or long-term assets used or useful in, a business engaged in a Permitted Business. For purposes of this provision, each of the following items shall will also be deemed to be cash and Cash Equivalents for the purposes of this clause (2):cash:
(aA) the assumption of any liabilities (liabilities, as shown on the Company’s or the Restricted Subsidiary’s its most recent balance sheet) , of the Company or any such Restricted Subsidiary of the Company (other than contingent liabilities and liabilities that are by their terms subordinated to the Notes issued under this Indenture or any Subsidiary Guarantee) that are assumed by the transferee of any such assets pursuant to a customary novation agreement that releases the Company or the such Restricted Subsidiary from further liability;
(bB) any securities, notes or other obligations received by the Company or any such Restricted Subsidiary from such transferee that are promptly, subject to ordinary settlement periods, converted or monetized by the Company or the such Restricted Subsidiary into cash or Cash Equivalents within 180 days following their receipt (cash, to the extent of the cash received in that conversion or Cash Equivalents received)monetization; and
(cC) any stock Capital Stock or assets of the kind referred to in clauses clause (2) or (4) of Section 4.12(b).
(b) and (d) of the next paragraph of this Section 4.10. Within 365 360 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 those Net Proceeds, at its option, to any one or more of the following:
(a1) to prepay, repay, purchase, repurchase or redeem any secured repay Indebtedness and other Obligations of the Company or any and its Restricted Subsidiary of the CompanySubsidiaries;
(b2) to acquire a controlling interest in another business or all or substantially all of the assets of, or operating line of another businessany Capital Stock of, any Person or division conducting a Permitted Business, if, in each the case engaged of any such acquisition of Capital Stock and after giving effect thereto, such Person will be a Restricted Subsidiary of the Company (or enter into a binding commitment for any such acquisition); provided that such binding commitment shall be treated as a permitted application of Net Proceeds from the date of such commitment until and only until the earlier of (x) the date on which such acquisition is consummated and (y) the 180th day following the expiration of the aforementioned 360-day period. If the acquisition or expenditure contemplated by such binding commitment is not consummated on or before such 180th day and the Company or such Restricted Subsidiary shall not have applied such Net Proceeds pursuant to clause (1), (3) or (4) of this Section 4.12(b) on or before such 180th day, such commitment shall be deemed not to have been a permitted application of Net Proceeds;
(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;; provided, however, that to the extent that the Asset Sale consists, directly or indirectly, of Domestic Assets, in order to qualify under any of the foregoing clauses (1) through (4) of this Section 4.12(b), the Company must apply such proceeds to acquire additional Domestic Assets, acquire assets located in the United States or a Person described in Section 4.12(b)(2) which will become a Domestic Subsidiary at the time it becomes a Restricted Subsidiary pursuant thereto, make domestic capital expenditures or repay Indebtedness that is an obligation of the Company or a Subsidiary Guarantor.
(c) to make capital expenditures; or
(d) to acquire other non-current assets to be used in a Permitted Business. Pending the final application of any such Net Proceeds, the Company may temporarily reduce Indebtedness under any Credit Facility revolving credit borrowings or otherwise expend or invest such the Net Proceeds in any manner that is not prohibited by this Supplemental Indenture. Any Net Proceeds from Asset Sales described in this paragraph that are not applied or invested as provided in the first sentence of this paragraph of this Section 4.10 shall be deemed to 4.12(b) will constitute “Excess Asset Sale Proceeds.” When On the 361st day after the Asset Sale (or, at the Company’s option, any earlier date), if the aggregate amount of Excess Asset Sale Proceeds exceeds $10.0 25.0 million, the Company will be required under this Indenture to make an offer Asset Sale Offer to the all Holders of Notes issued thereunder the IKE Zone Bonds and the to all holders of any other Senior Pari Passu Indebtedness that is subject to requirements with respect to the application of net proceeds from asset sales that are substantially similar to those contained in this Indenture (collectively, an “Asset Sale Offer”) in respect of which an offer to purchase on a pro rata basis (with the Excess Asset Sale Proceeds prorated between the Holders of the Notes and such holders of such other Senior Indebtedness based upon outstanding aggregate principal amounts) is also required to purchase the maximum principal amount of the Notes IKE Zone Bonds and such other Senior Pari Passu Indebtedness that may be purchased or prepaid, as applicable, out of the prorated Excess Asset Sale Proceeds, at an . The offer price in cash in an amount any Asset Sale Offer will be equal to 100% of the principal amount thereof plus accrued and unpaid interest thereon to the date of purchase, and will be payable in accordance with cash. If any Excess Proceeds remain after consummation of an Asset Sale Offer, the procedures set forth in Company may use those Excess Proceeds for any purpose not otherwise prohibited by this Supplemental Indenture. To the extent that If the aggregate principal amount of Notes IKE Zone Bonds and other Senior Pari Passu Indebtedness tendered (and electing to be redeemed or repaid, as applicable) pursuant to an into such Asset Sale Offer is less than exceeds the amount of Excess Asset Sale Proceeds, the Company Trustee will select the IKE Zone Bonds and its Restricted Subsidiaries may use any remaining Excess Asset Sale Proceeds for general corporate purposes and any such other purpose not prohibited by this IndenturePari Passu Indebtedness to be purchased on a pro rata basis. Upon completion of the offer to purchaseeach Asset Sale Offer, the amount of Excess Asset Sale Proceeds shall 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 an Asset Sale Offer. .
(d) To the extent that the provisions of any securities laws or regulations conflict with the Change of Control or Asset Sale provisions of this Section 4.10Supplemental Indenture, the Company will shall comply with the applicable securities laws and regulations and the Company will not be deemed to have breached its obligations under the Change of Control or Asset Sale provisions of this Section 4.10 Supplemental Indenture by virtue of such conflict.
(e) Notwithstanding the Company’s compliance provisions described in Sections 4.12(a), (b), (c) and (d) (other than the proviso to Section 4.12(b)), the Company and its Restricted Subsidiaries may consummate an Asset Sale without complying with such securities laws provisions if (i) at least 80% of the consideration for such Asset Sale is in the form of assets used or regulationsuseful in a Permitted Business and (ii) such Asset Sale is for at least Fair Market Value.
Appears in 1 contract
Samples: Fifth Supplemental Indenture (Westlake Chemical Corp)
Asset Sales. The Company will shall not, and will shall not permit any of its Restricted Subsidiaries to, consummate an Asset Sale unless:
(1) the Company (or the Restricted Subsidiary, as the case may be, ) receives consideration at the time of the Asset Sale at least equal to the Fair Market Value (measured as of the date of the definitive agreement with respect to such Asset Sale) fair market value of the assets or Equity Interests issued or sold or otherwise disposed of;
(2) fair market value is determined by the Board of Directors of the Company (or the Restricted Subsidiary, as the case may be) and evidenced by a resolution of such Board of Directors; and
(23) except in the case of a Qualified Asset Exchange, at least 75% of the consideration received in such Asset Sale by the Company or such Restricted Subsidiary is in the form of cash or Cash Equivalents; provided that any . For purposes of clause (3) above only, each of the following items shall be deemed to be cash and Cash Equivalents for the purposes of this clause (2):cash:
(a) the assumption of any liabilities (liabilities, as shown on the Company’s or the such Restricted Subsidiary’s most recent balance sheet) , of the Company or any Restricted Subsidiary of the Company (other than contingent liabilities and liabilities that are by their terms subordinated to the Notes issued under this Indenture or any Subsidiary GuaranteeGuarantee of the Notes) that are assumed by the transferee of any such assets pursuant to a customary novation agreement that releases the Company or the Restricted Subsidiary from further liability;
(b) any securities, notes or other obligations received by the Company or any such Restricted Subsidiary from such the transferee that are converted by the Company or the Restricted Subsidiary into cash or Cash Equivalents within 180 ninety (90) days following their receipt (of the applicable Asset Sale, to the extent of the cash or Cash Equivalents received)received in that conversion; and
(c) any stock Designated Noncash Consideration received by the Company or assets any of its Restricted Subsidiaries in an Asset Sale having an aggregate fair market value, taken together with all other Designated Noncash Consideration received pursuant to this clause, not to exceed the kind referred greater of $300.0 million or 7.5% of Consolidated Net Tangible Assets in the aggregate at any time outstanding (with the fair market value of each item of Designated Noncash Consideration being measured at the time received and without giving effect to subsequent changes in clauses (b) and (d) of the next paragraph of this Section 4.10value). Within 365 days after the receipt of any Net Proceeds from an Asset Sale, the Company or the Restricted Subsidiary, as the case may be, Subsidiary may apply such those Net Proceeds, at its optionProceeds to:
(a1) to prepay, repay, purchase, repurchase or redeem any secured reduce non-subordinated Indebtedness of the Company or any Restricted Subsidiary of the Company;
(b2) reduce Indebtedness or Excluded Capital Lease Obligations of any of the Company’s Restricted Subsidiaries (including by way of the Company or a Restricted Subsidiary acquiring outstanding Indebtedness of any Restricted Subsidiary to be held by the Company or a Restricted Subsidiary to redemption or maturity of such Indebtedness);
(3) acquire a controlling interest in another business or all or substantially all of the assets or operating line of another business, in each case engaged in a Permitted Business;
(c4) to make an investment in any one or more businesses (provided that if such investment is in the form of the acquisition of Capital Stock of a Person and results in the Company or a Restricted Subsidiary owning more than 50% of such Person, such acquisition results in such Person becoming a Restricted Subsidiary of the Company unless designated an Unrestricted Subsidiary by the Company);
(5) make an investment in any one or more businesses, properties or assets that replace the properties or assets that are the subject of such Asset Sale; and/or
(6) make capital expenditures; or
(d) to expenditures or acquire other nonlong-current term assets to be (including long-term land use easements, ground leases and similar land rights) that are used or useful in a Permitted Business, provided that, after giving effect thereto, the Company or its Restricted Subsidiaries is the owner of such assets or such expenditure or acquisition constitutes a Permitted Investment; provided that in the case of clauses (3), (4), (5) and (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 Company 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 nine months after the end of the 365-day period (an “Acceptable Commitment”) and, in the event any Acceptable Commitment is later cancelled, terminated or otherwise not consummated during such period for any reason, then any such unapplied Net Proceeds shall upon such event constitute Excess Proceeds. Pending the final application of any such Net Proceeds, the Company may temporarily reduce Indebtedness under any Credit Facility revolving credit borrowings or otherwise expend or invest such the Net Proceeds in any manner that is not prohibited by this Indenture. Any Net Proceeds from Asset Sales described in this paragraph that are not applied or invested as provided in the first sentence preceding paragraphs (whether by election or the passage of this paragraph of this Section 4.10 time) shall be deemed to constitute “Excess Asset Sale Proceeds.” When the aggregate amount of Excess Asset Sale Proceeds exceeds $10.0 35.0 million, the Company will shall be required under this Indenture to make an offer to the all Holders of Notes issued thereunder the Notes, and the all holders of any other Senior pari passu Indebtedness that is subject of the Company containing provisions similar to requirements those set forth in this Indenture with respect to offers to purchase or redeem with the application of net proceeds from asset sales that are substantially similar to those contained in this Indenture (an “any Asset Sale Offer”) to purchase on a pro rata basis (with the Excess Asset Sale Proceeds prorated between the Holders of the Notes and such holders of such other Senior Indebtedness based upon outstanding aggregate principal amounts) the maximum principal amount of the Notes and such other Senior pari passu Indebtedness of the Company that may be purchased or prepaid, as applicable, out of the prorated Excess Proceeds (an “Asset Sale Proceeds, at an Offer”). The offer price in any Asset Sale Offer will be payable in cash in an amount equal to and shall be 100% of the principal amount thereof of any Notes and pari passu Indebtedness, plus accrued and unpaid interest thereon interest, if any, and Additional Interest, if any, to the date of purchase, . Each Asset Sale Offer shall be made in accordance with the procedures set forth in this Indenture and the other pari passu Indebtedness of the Company. If any Excess Proceeds remain after consummation of an Asset Sale Offer, the Company may use the remaining Excess Proceeds for any purpose not otherwise prohibited by this Indenture. To the extent that If the aggregate principal amount of Notes and the other Senior pari passu Indebtedness of the Company tendered (and electing to be redeemed or repaid, as applicable) pursuant to an into the Asset Sale Offer is less than exceeds the amount of Excess Asset Sale Proceeds, the Company Trustee shall select the Notes and its Restricted Subsidiaries may use any remaining Excess Asset Sale Proceeds for general corporate purposes and any such other purpose not prohibited by this Indenturepari passu Indebtedness to be purchased on a pro rata basis. Upon completion of the offer to purchaseAsset Sale Offer, the amount of Excess Asset Sale Proceeds shall be reset at zero. Upon the commencement of an Asset Sale Offer, the Company shall send, by first class mail, a notice to the Trustee and each of the Holders, 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. The notice, which shall govern the terms of the Asset Sale Offer, shall state:
(a) that the Asset Sale Offer is being made pursuant to this Section 4.17 and that such Asset Sale Offer shall remain open for twenty (20) Business Days;
(b) the amount attributable to the Notes, the purchase price and the purchase date of the Asset Sale (the “Purchase Date”);
(c) that any Note not tendered or accepted for payment shall continue to accrue interest and Additional Interest, if any;
(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, and Additional Interest, if any;
(e) 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 appointed by the Company, or a Paying Agent at the address specified in the notice at least three Business Days before the Purchase Date;
(f) that Holders shall 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, facsimile transmission or letter setting forth the name of the Holder, the principal amount of the Note the Holder delivered for purchase and a statement that such Holder is withdrawing his election to have such Note purchased;
(g) that, if the aggregate principal amount of Notes and aggregate principal amount of such other pari passu Indebtedness tendered by Holders exceeds $35.0 million, the Company shall select the Notes and such other pari passu Indebtedness to be purchased on a pro rata basis on the basis of the aggregate principal amount of Notes and the aggregate principal amount of such other pari passu Indebtedness tendered (with such adjustments as may be deemed appropriate by the Company so that only Notes and other Indebtedness in denominations of $2,000 or whole multiples of $1,000 in excess thereof, shall be purchased); and
(h) that Holders whose Notes were purchased only in part shall 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 shall, to the extent lawful, accept for payment, on a pro rata basis to the extent necessary, the amount of Notes and such other pari passu Indebtedness or portions thereof tendered pursuant to the Asset Sale Offer, or if less than $35.0 million has been tendered, all Notes and such other pari passu Indebtedness or portions thereof tendered, and shall deliver to the Trustee an Officers’ Certificate stating that such Notes and such other pari passu Indebtedness or portions thereof were accepted for payment by the Company in accordance with the terms of this Section 4.17. 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 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 shall promptly issue a new Note, and the Trustee, upon written request 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 promptly after the Purchase Date. If the 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, will be paid to the Holder in whose name a note is registered at the close of business on such record date, and no other interest or Additional Interest, if any, will be payable to Holders whose Notes are purchased pursuant to the Asset Sale Offer. The Company shall comply with the requirements of Rule 14e-1 under Section 14(e) of the Exchange Act and any other securities laws and or regulations thereunder to the extent such those laws and regulations are applicable in connection with an to any Asset Sale Offer. To the extent that If the provisions of any of the applicable securities laws or securities regulations conflict with the provisions of this Section 4.104.17, 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 4.17 by virtue of the Company’s compliance with such securities laws or regulationscompliance.
Appears in 1 contract
Samples: Indenture (Sba Communications Corp)
Asset Sales. The Company will shall not, and will shall not permit any of its Restricted Subsidiaries to, consummate an Asset Sale unless:
unless (1i) the Company (or the Restricted Subsidiary, as the case may be, ) receives consideration at the time of the such Asset Sale at least equal to the Fair Market Value fair market value (measured as evidenced by a resolution of the date Board of Directors set forth in an Officers' Certificate delivered to the definitive agreement with respect to such Asset SaleTrustee) of the assets or Equity Interests issued or sold or otherwise disposed of; and
of and (2ii) at least 75% of the consideration therefor received in by the Company or such Asset Sale Restricted Subsidiary is in the form of cash or Cash Equivalentscash; provided that any the amount of the following items shall be deemed to be cash and Cash Equivalents for the purposes of this clause (2):
(ax) the assumption of any liabilities (as shown on the Company’s 's or the such Restricted Subsidiary’s 's most recent balance sheet) ), of the Company or any Restricted Subsidiary of the Company (other than contingent liabilities and liabilities that are by their terms subordinated to the Notes issued under this Indenture or any Subsidiary Guaranteeguarantee thereof) that are assumed by the transferee of any such assets pursuant to a customary novation agreement that releases the Company or the such Restricted Subsidiary from further liability;
liability and (by) any securities, notes or other obligations 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 the such Restricted Subsidiary into cash or Cash Equivalents within 180 days following their receipt (to the extent of the cash or Cash Equivalents received); and
(c) any stock or assets of the kind referred , shall be deemed to in clauses (b) and (d) of the next paragraph be cash for purposes of this Section 4.10provision. Within 365 days after the receipt of any Net Proceeds from an Asset Sale, the Company or the Restricted Subsidiary, as the case may be, may apply such Net Proceeds, at its option:
, (a) to prepay, repay, purchase, repurchase or redeem any secured permanently repay (and reduce the commitments under) Senior Indebtedness of the Company or any Restricted Subsidiary of the Company;
a Guarantor or (b) to acquire the acquisition of a controlling interest in another business or all or substantially all majority of the assets of, or operating line a majority of the Voting Stock of, another business, in each case engaged in a Permitted Business;
(c) to make , the making of a capital expenditures; or
(d) to acquire expenditure or the acquisition of other nonlong-current term assets to be that are used or useful in a Permitted Business. Pending the final application of any such Net Proceeds, the Company may temporarily reduce Indebtedness under any revolving credit borrowings, including without limitation, the Secured Credit Facility Facility, or otherwise expend or invest such Net Proceeds in any manner that is not prohibited by this the Indenture. Any Net Proceeds from Asset Sales described in this paragraph that are not applied or invested as provided in the first sentence of this paragraph of this Section 4.10 shall be deemed to constitute “"Excess Asset Sale Proceeds.” " When the aggregate amount of Excess Asset Sale Proceeds exceeds $10.0 5.0 million, the Company will shall be required under this Indenture to make an offer to the all Holders of Notes issued thereunder and the all holders of any other Senior Indebtedness that is subject containing provisions similar to requirements those set forth in this Indenture with respect to offers to purchase or redeem with the application proceeds of net proceeds from asset sales that are substantially similar to those contained in this Indenture of assets (an “"Asset Sale Offer”") to purchase on a pro rata basis (with the Excess Asset Sale Proceeds prorated between the Holders of the Notes and such holders of such other Senior Indebtedness based upon outstanding aggregate principal amounts) the maximum principal amount of the Notes and such other Senior Indebtedness that may be purchased or prepaid, as applicable, out of the prorated Excess Asset Sale Proceeds, at an offer price in cash in an amount equal to 100% of the principal amount thereof plus accrued and unpaid interest thereon and Liquidated Damages thereon, if any, to the date of purchase, in accordance with the procedures set forth in this IndentureIndenture 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 Senior Indebtedness tendered (and electing by holders thereof in response to be redeemed or repaid, as applicable) pursuant to an such Asset Sale Offer is less than exceeds the amount of Excess Asset Sale Proceeds, the Company Trustee shall select the Notes and its Restricted Subsidiaries may use any remaining Excess Asset Sale Proceeds for general corporate purposes and any such other purpose not prohibited by this IndentureIndebtedness to be purchased on a pro rata basis. Upon completion of the such offer to purchase, the amount of Excess Asset Sale Proceeds shall 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 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, 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 the Company’s compliance with such securities laws or regulations.
Appears in 1 contract
Samples: Indenture (Flo Fill Co Inc)
Asset Sales. The Company will shall not, and will shall not permit any of its Restricted Subsidiaries to, consummate an Asset Sale unless:
unless (1a) the Company or the such Restricted Subsidiary, as the case may be, receives consideration at the time of the such Asset Sale at least equal to the Fair Market Value fair market value (measured as determined in accordance with the definition of such term, the date results of which determination shall be set forth in an Officers' Certificate delivered to the definitive agreement with respect to such Asset SaleTrustee) of the assets or Equity Interests issued or sold or otherwise disposed of; and
of and (2b) at least 75% of the consideration therefor received in by the Company or such Asset Sale Restricted Subsidiary is in the form of cash or Cash Equivalents; provided provided, however, that any the amount of the following items shall be deemed to be cash and Cash Equivalents for the purposes of this clause (2):
(ai) the assumption of any liabilities (as shown on the Company’s 's or the such Restricted Subsidiary’s 's most recent balance sheet) of the Company or any such Restricted Subsidiary of the Company (other than contingent liabilities and liabilities that are by their terms subordinated to the Notes issued under this Indenture or any Subsidiary Guaranteeguarantee thereof) that are assumed by the transferee of any such assets pursuant to a customary novation agreement that releases the Company or the such Restricted Subsidiary from further liability;
liability and (bii) any securities, notes or other obligations received by the Company or any such Restricted Subsidiary from such transferee that are immediately converted by the Company or the such Restricted Subsidiary into cash or Cash Equivalents within 180 days following their receipt (to the extent of the cash or Cash Equivalents received); and
(c) any stock or assets of the kind referred shall be deemed to in clauses (b) and (d) of the next paragraph be cash for purposes of this Section 4.10. Within 365 days after the receipt of any Net Proceeds from an Asset Sale, the Company or the any such Restricted Subsidiary, as the case may be, Subsidiary may apply such Net Proceeds, at its option:
Proceeds to (a) to prepay, repay, purchase, repurchase or redeem permanently repay the principal of any secured Indebtedness (to the extent of the fair value of the assets securing such Indebtedness, as determined by the Board of Directors) or (b) to acquire (including by way of a purchase of assets or stock, merger, consolidation or otherwise) Productive Assets. (Any such Net Proceeds that are applied to the acquisition of Productive Assets pursuant to any binding agreement to construct any new marine vessel useful in the business of the Company or any of its Restricted Subsidiary Subsidiaries shall be deemed to have been applied for such purpose within such 365-day period so long as they are so applied within 18 months of the Company;
(beffective date of such agreement but no later than two years after the date of receipt of such Net Proceeds.) to acquire a controlling interest in another business or all or substantially all of the assets or operating line of another business, in each case engaged in a Permitted Business;
(c) to make capital expenditures; or
(d) to acquire other non-current assets to be used in a Permitted Business. Pending the final application of any such Net Proceeds, the Company or any such Restricted Subsidiary may temporarily reduce Indebtedness outstanding revolving credit borrowings, including borrowings under any the Credit Facility Facility, or otherwise expend or invest such Net Proceeds in any manner that is not prohibited by this Indenture, the Series A/B Indenture and the Series C/D Indenture. Any Net Proceeds from Asset Sales described in this paragraph that are not applied or invested as provided in the first sentence of this paragraph of this Section 4.10 shall be deemed to constitute “"Excess Asset Sale Proceeds.” When " Within 30 days of each date on which the aggregate amount of Excess Asset Sale Proceeds exceeds $10.0 5.0 million, the Company will be required under this Indenture to make an offer to the Holders of Notes issued thereunder and the holders of any other Senior Indebtedness that is subject to requirements with respect to the application of net proceeds from asset sales that are substantially similar to those contained in this Indenture (an “Asset Sale Offer”) to purchase on shall commence a pro rata basis (with the Excess Asset Sale Proceeds prorated between the Holders of the Notes and such holders of such other Senior Indebtedness based upon outstanding aggregate principal amounts) Offer pursuant to Section 3.09 hereof to purchase the maximum principal amount of the Notes and such other Senior Indebtedness that may be purchased or prepaid, as applicable, out of the prorated Excess Asset Sale Proceeds, Proceeds at an offer price in cash in an amount equal to 100% of the principal amount thereof thereof, plus accrued and unpaid interest thereon and Liquidated Damages, if any, thereon, to the date of purchase, in accordance with the procedures set forth in this IndentureSection 3.09 hereof; provided, however, that, if the Company is required to apply such Excess Proceeds to repurchase, or to offer to repurchase, any Pari Passu Indebtedness, the Company shall only be required to offer to repurchase the maximum principal amount of Notes that may be purchased out of the amount of such Excess Proceeds multiplied by a fraction, the numerator of which is the aggregate principal amount of Notes outstanding and the denominator of which is the aggregate principal amount of Notes outstanding plus the aggregate principal amount of Pari Passu Indebtedness outstanding. To the extent that the aggregate principal amount of Notes and other Senior Indebtedness tendered (and electing to be redeemed or repaid, as applicable) pursuant to an Asset Sale Offer is less than the Excess Asset Sale Proceedsamount that the Company is required to repurchase, the Company and its Restricted Subsidiaries may use any remaining Excess Asset Sale Proceeds for general corporate purposes and any other purpose not prohibited purposes. If the aggregate amount of Notes surrendered by this Indentureholders thereof exceeds the amount that the Company is required to repurchase, the Trustee shall select the Notes to be purchased on a pro rata basis (with such adjustments as may be deemed appropriate by the Trustee so that only Notes in denominations of $1,000, or integral multiples thereof, shall be purchased). Upon completion of the such offer to purchase, the amount of Excess Asset Sale Proceeds shall 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 an Asset Sale Offer. To the extent that the provisions of any securities laws or regulations conflict with the provisions For purposes of this Section 4.10paragraph only, the Company will comply with the applicable securities laws and regulations and will not any reference herein to "Notes" shall be deemed to have breached its obligations include the Notes and the notes issued under this Section 4.10 by virtue of the Company’s compliance with such securities laws or regulationsSeries A/B Indenture and the Series C/D Indenture.
Appears in 1 contract
Asset Sales. The Company will Issuer shall not, and will shall not permit any of its Restricted Subsidiaries to, consummate an Asset Sale unless:
unless (1i) the Company Issuer (or the Restricted Subsidiary, as the case may be, ) receives consideration at the time of the such Asset Sale at least equal to the Fair Market Value fair market value (measured as evidenced by a resolution of the date Board of Directors set forth in an Officers' Certificate delivered to the definitive agreement Trustee with respect to such any Asset SaleSale involving in excess of $1.0 million) of the assets or Equity Interests issued or sold or otherwise disposed of; and
of and (2ii) at least 75% of the consideration therefor received in by the Issuer or such Asset Sale Restricted Subsidiary is in the form of cash or Cash Equivalents; provided that any the amount of the following items shall be deemed to be cash and Cash Equivalents for the purposes of this clause (2):
(ax) the assumption of any liabilities (as shown on the Company’s Issuer's or the such Restricted Subsidiary’s 's most recent balance sheet) ), of the Company Issuer or any Restricted Subsidiary of the Company (other than contingent liabilities and liabilities that are by their terms subordinated to the Notes issued under this Indenture or any Subsidiary Guaranteeguarantee thereof) that are assumed by the transferee of any such assets pursuant to a customary novation agreement that releases the Company Issuer or the such Restricted Subsidiary from further liability;
liability and (by) any securities, notes or other obligations received by the Company Issuer or any such Restricted Subsidiary from such transferee that are immediately converted by the Company Issuer or the such Restricted Subsidiary into cash or Cash Equivalents within 180 days following their receipt (to the extent of the cash or Cash Equivalents received); and
(c) any stock or assets of the kind referred , shall be deemed to in clauses (b) and (d) of the next paragraph be cash for purposes of this Section 4.10provision. Within 365 360 days after the receipt of any Net Proceeds from an Asset Sale, the Company Issuer or the its Restricted Subsidiary, as the case may be, may apply such Net ProceedsProceeds from such Asset Sale to permanently reduce Indebtedness under the New Credit Facility in accordance with its terms, if applicable, or to the extent not required to be applied thereunder, may, at its option:
(a) , apply such Net Proceeds to prepay, repay, purchase, repurchase or redeem any secured repayment of Indebtedness of the Company or any a Restricted Subsidiary (in the case of the Company;
(bNet Proceeds from an Asset Sale effected by a Restricted Subsidiary) or to acquire an investment in a controlling interest Restricted Subsidiary or in another business or all capital expenditure or substantially all of the assets or operating line of another businessother long-term/tangible assets, in each case case, in the same or a similar line of business as the Issuer or any of its Restricted Subsidiaries were engaged in a Permitted Business;
(c) to make capital expenditures; or
(d) to acquire other non-current assets to be used on the date of this Indenture or in a Permitted Businessbusinesses reasonably related thereto. Pending the final application of any such Net Proceeds, the Company Issuer may temporarily reduce Indebtedness under any the New Credit Facility or otherwise expend or invest such Net Proceeds in any manner that is not prohibited by this Indenture. Any Net Proceeds from Asset Sales described in this paragraph that are not applied or invested as provided in the first sentence of this paragraph of this Section 4.10 shall be deemed to constitute “"Excess Asset Sale Proceeds.” " When the aggregate amount of Excess Asset Sale Proceeds exceeds $10.0 5.0 million, the Company will Issuer shall be required under this Indenture to make an offer to the all Holders of Notes issued thereunder and the holders of any other Senior Indebtedness that is subject to requirements with respect to the application of net proceeds from asset sales that are substantially similar to those contained in this Indenture (an “"Asset Sale Offer”") to purchase on a pro rata basis (with the Excess Asset Sale Proceeds prorated between the Holders of the Notes and such holders of such other Senior Indebtedness based upon outstanding aggregate principal amounts) the maximum principal amount of the Notes and such other Senior Indebtedness that may be purchased or prepaid, as applicable, out of the prorated Excess Asset Sale Proceeds, at an offer price in cash in an amount equal to 100% of the principal amount thereof plus accrued and unpaid interest and Liquidated Damages, if any, thereon to the date of purchase, in accordance with the procedures set forth in this Indenture. To the extent that the aggregate principal amount of Notes and other Senior Indebtedness tendered (and electing to be redeemed or repaid, as applicable) pursuant to an Asset Sale Offer is less than the Excess Asset Sale Proceeds, the Company and its Restricted Subsidiaries Issuer may use any remaining Excess Asset Sale Proceeds for general corporate purposes and any other purpose not prohibited purposes. If the aggregate principal amount of Notes surrendered by this IndentureHolders thereof exceeds the amount of Excess Proceeds, the Trustee shall select the Notes to be purchased on a pro rata basis. Upon completion of the such offer to purchase, the amount of Excess Asset Sale Proceeds shall 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 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, 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 the Company’s compliance with such securities laws or regulations.
Appears in 1 contract
Samples: Indenture (Anchor Holdings Inc)
Asset Sales. (a) The Company will not, and will not permit any of its Restricted Subsidiaries to, consummate an Asset Sale unless:
(1i) the Company (or the Restricted Subsidiary, as the case may be, ) receives consideration at the time of the Asset Sale at least equal to the Fair Market Value (measured as of the date of the definitive agreement with respect to such Asset Sale) fair market value of the assets or Equity Interests issued or sold or otherwise disposed of; and;
(2ii) the fair market value is determined in good faith by the Company’s Board of Directors and evidenced by a resolution of the Board of Directors or by a Responsible Officer of the Company set forth in an Officer’s Certificate, in each case, delivered to the Trustee;
(iii) at least 75% of the consideration received in such the Asset Sale by the Company or such Restricted Subsidiary is in the form of cash or Cash Equivalents; provided that any Equivalents except to the extent the Company is undertaking a Permitted Asset Swap. For purposes of this provision and subparagraph (z) below, each of the following items shall be deemed to be cash and Cash Equivalents for the purposes of this clause (2):cash:
(aA) the assumption of any liabilities (liabilities, as shown on the Company’s or the Restricted Subsidiary’s most recent consolidated balance sheet) , of the Company or any Restricted Subsidiary of the Company (other than contingent liabilities and liabilities that are by their terms subordinated to the Notes issued under this Indenture or any Subsidiary Guarantee) that are assumed by the transferee of any such assets pursuant to a customary novation agreement that releases the Company or the such Restricted Subsidiary from further liability;; and
(bB) any securities, notes or other obligations received by the Company or any such Restricted Subsidiary from such transferee that are converted by the Company or the such Restricted Subsidiary within 180 days into cash or Cash Equivalents within 180 days following their receipt (Equivalents, to the extent of the cash or Cash Equivalents received)received in that conversion; and
(civ) any stock or assets if such Asset Sale involves the transfer of Collateral:
(A) such Asset Sale complies with the applicable provisions of the kind Security Documents;
(B) to the extent required by the Security Documents, all consideration (including Cash Equivalents) received in such Asset Sale shall be expressly made subject to Liens under the Security Documents; and
(C) subject to application of Net Proceeds pursuant to the fourth paragraph of this covenant, all of the Net Proceeds from such Asset Sale are deposited into the Collateral Account. The 75% limitation referred to in clauses clause (biii) and (d) above will not apply to any Asset Sale in which the cash or Cash Equivalents portion of the next paragraph of this Section 4.10consideration received therefrom, determined in accordance with the preceding 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. Within 365 days after Notwithstanding the receipt of any Net Proceeds from an Asset Saleforegoing, the Company or the Restricted Subsidiary, as the case may be, may apply such Net Proceeds, at its option:
(a) to prepay, repay, purchase, repurchase or redeem any secured Indebtedness of the Company or any Restricted Subsidiary of the Company;
(b) to acquire a controlling interest in another business or all or substantially all of the assets or operating line of another business, in each case engaged in a Permitted Business;
(c) to make capital expenditures; or
(d) to acquire other non-current assets to be used in a Permitted Business. Pending the final application of any such Net Proceeds, the Company may temporarily reduce Indebtedness under any Credit Facility or otherwise expend or invest such Net Proceeds in any manner that is not prohibited by this Indenture. Any Net Proceeds from Asset Sales described in this paragraph that are not applied or invested as provided in the first sentence of this paragraph of this Section 4.10 shall be deemed to constitute “Excess Asset Sale Proceeds.” When the aggregate amount of Excess Asset Sale Proceeds exceeds $10.0 million, the Company will be required under this Indenture permitted to make an offer to the Holders of Notes issued thereunder and the holders of any other Senior Indebtedness that is subject to requirements with respect to the application of net proceeds from asset sales that are substantially similar to those contained in this Indenture (an “Asset Sale Offer”) to purchase on a pro rata basis (with the Excess Asset Sale Proceeds prorated between the Holders of the Notes and such holders of such other Senior Indebtedness based upon outstanding aggregate principal amounts) the maximum principal amount of the Notes and such other Senior Indebtedness that may be purchased or prepaid, as applicable, out of the prorated Excess Asset Sale 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. To the extent that the aggregate principal amount of Notes and other Senior Indebtedness tendered (and electing to be redeemed or repaid, as applicable) pursuant to consummate an Asset Sale Offer is less than the Excess Asset Sale Proceeds, the Company and its Restricted Subsidiaries may use any remaining Excess Asset Sale Proceeds for general corporate purposes and any other purpose not prohibited by this Indenture. Upon completion of the offer to purchase, the amount of Excess Asset Sale Proceeds shall be reset at zero. The Company will comply without complying 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 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, 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 the Company’s compliance with such securities laws or regulations.foregoing if:
Appears in 1 contract
Samples: Indenture (Lbi Media Holdings Inc)
Asset Sales. The Company will shall not, and will shall not permit any of its Restricted Subsidiaries to, consummate cause, make or suffer to exist an Asset Sale unless:
unless (1i) the Company (or the Restricted Subsidiary, as the case may be, receives ) received consideration at the time of the such Asset Sale at least equal to the Fair Market Value fair market value (measured evidenced by a resolution of the Board of Directors set forth in an Officers' Certificate delivered to the Trustee (as defined in the Indenture as in effect as of the date of the definitive agreement with respect to such Asset Salehereof)) of the assets or Equity Interests issued or sold or otherwise disposed of; and
of and (2ii) at least 7580% of the consideration therefor received in by Company or such Asset Sale Restricted Subsidiary is in the form of cash or Cash Equivalents; provided AXEL CREDIT AGREEMENT EXECUTION 102 109 that any the amount of the following items shall be deemed to be cash and Cash Equivalents for the purposes of this clause (2):
(ax) the assumption of any liabilities (as shown on the Company’s 's or the such Restricted Subsidiary’s 's most recent balance sheet) of the Company or any Restricted Subsidiary of the Company (other than contingent liabilities and liabilities that are by their terms subordinated to the Senior Subordinated Notes issued under this Indenture or any Subsidiary Guaranteeguarantee thereof) that are assumed by the transferee of any such assets pursuant to a customary novation agreement that releases the Company or the such Restricted Subsidiary from further liability;
, (by) any securities, Excludable Current Liabilities and (z) any notes or other obligations received by the Company or any such Restricted Subsidiary from such transferee that are immediately converted by the Company or the such Restricted Subsidiary into cash or Cash Equivalents within 180 days following their receipt (to the extent of the cash or Cash Equivalents received); and
(c) any stock or assets of the kind referred to in clauses (b) and (d) of the next paragraph of this Section 4.10. Within 365 days after the receipt of any Net Proceeds from an Asset Sale, the Company or the Restricted Subsidiary, as the case may be, may apply such Net Proceeds, at its option:
(a) to prepay, repay, purchase, repurchase or redeem any secured Indebtedness of the Company or any Restricted Subsidiary of the Company;
(b) to acquire a controlling interest in another business or all or substantially all of the assets or operating line of another business, in each case engaged in a Permitted Business;
(c) to make capital expenditures; or
(d) to acquire other non-current assets to be used in a Permitted Business. Pending the final application of any such Net Proceeds, the Company may temporarily reduce Indebtedness under any Credit Facility or otherwise expend or invest such Net Proceeds in any manner that is not prohibited by this Indenture. Any Net Proceeds from Asset Sales described in this paragraph that are not applied or invested as provided in the first sentence of this paragraph of this Section 4.10 shall be deemed to constitute “Excess Asset Sale Proceeds.” When the aggregate amount of Excess Asset Sale Proceeds exceeds $10.0 million, the Company will be required under this Indenture to make an offer to the Holders of Notes issued thereunder and the holders of any other Senior Indebtedness that is subject to requirements with respect to the application of net proceeds from asset sales that are substantially similar to those contained in this Indenture (an “Asset Sale Offer”) to purchase on a pro rata basis (with the Excess Asset Sale Proceeds prorated between the Holders of the Notes and such holders of such other Senior Indebtedness based upon outstanding aggregate principal amounts) the maximum principal amount of the Notes and such other Senior Indebtedness that may be purchased or prepaid, as applicable, out of the prorated Excess Asset Sale 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. To the extent that the aggregate principal amount of Notes and other Senior Indebtedness tendered (and electing to be redeemed or repaid, as applicable) pursuant to an Asset Sale Offer is less than the Excess Asset Sale Proceeds, the Company and its Restricted Subsidiaries may use any remaining Excess Asset Sale Proceeds for general corporate purposes and any other purpose not prohibited by this Indenture. Upon completion of the offer to purchase, the amount of Excess Asset Sale Proceeds shall 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 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, 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 the Company’s compliance with such securities laws or regulationsprovision.
Appears in 1 contract
Samples: Credit Agreement (JCS Realty Corp)
Asset Sales. The Company will shall not, and will shall not permit any of its Restricted Subsidiaries to, consummate engage in an Asset Sale unless:
unless (1i) the Company (or the Restricted Subsidiary, as the case may be, ) receives consideration at the time of the such Asset Sale at least equal to the Fair Market Value fair market value (measured as determined by the Board of Directors in good faith, whose determination shall be conclusive evidence thereof and shall be evidenced by a resolution of the date Board of Directors set forth in an Officers' Certificate delivered to the definitive agreement with respect to such Asset SaleTrustee) of the assets or Equity Interests issued or sold or otherwise disposed of; and
of and (2ii) at least 7580% of the consideration therefor received in by the Company or such Asset Sale Subsidiary is in the form of cash or Cash Equivalentscash; provided that any the amount of the following items shall be deemed to be cash and Cash Equivalents for the purposes of this clause (2):
(ax) the assumption of any liabilities (as shown on the Company’s 's or the Restricted such Subsidiary’s 's most recent balance sheet) ), of the Company or any Restricted Subsidiary of the Company (other than contingent liabilities and liabilities that are by their terms subordinated to the Notes issued under this Indenture or any Subsidiary Guaranteeguarantee thereof) that are assumed by the transferee of any such assets pursuant to a customary novation an agreement that releases the Company or the Restricted such Subsidiary from further liability;
liability and (by) any securities, notes or other obligations received by the Company or any such Restricted Subsidiary from such transferee that are immediately converted by the Company or the Restricted such Subsidiary into cash or Cash Equivalents within 180 days following their receipt (to the extent of the cash or Cash Equivalents received); and
(c) any stock or assets of the kind referred , shall be deemed to in clauses (b) and (d) of the next paragraph be cash for purposes of this Section 4.10provision. Within 365 360 days after the receipt of any Net Proceeds from an Asset Sale, the Company or the Restricted Subsidiary, as the case may be, may apply such Net Proceeds, at its option:
, (a) to prepaypermanently reduce, repayrepurchase, purchase, repurchase repay or redeem any secured term Indebtedness of under the Company New Credit Agreement or any Restricted Subsidiary of the Company;
one or more successor or additional bank facilities, (b) to acquire permanently reduce or repay revolving Indebtedness (and to correspondingly reduce commitments with respect thereto) under the New Credit Agreement or any one or more successor or additional bank facilities, or (c) to the acquisition of a controlling interest in another business business, the making of a capital expenditure or all or substantially all the acquisition of the assets or operating line of another businessother long-term assets, in each case case, in the same or a similar line of business as the Company was engaged in a Permitted Business;
(c) to make capital expenditures; or
(d) to acquire other non-current assets to be used in a Permitted Businesson the date of such Asset Sale or another line of business that is reasonably related thereto. Pending the final application of any such Net Proceeds, the Company may temporarily reduce revolving Indebtedness under the New Credit Agreement or any Credit Facility one or more successor or additional bank facilities or otherwise expend or invest such Net Proceeds in any manner that is not prohibited by this Indenture. Any Net Proceeds from Asset Sales described in this paragraph that are not applied or invested as provided in the first sentence of this paragraph of this Section 4.10 shall be deemed to constitute “Excess Asset Sale Proceeds.” When the aggregate amount of Excess Asset Sale Proceeds exceeds $10.0 million, the Company will be required under this Indenture to make an offer to the Holders of Notes issued thereunder and the holders of any other Senior Indebtedness that is subject to requirements with respect to the application of net proceeds from asset sales that are substantially similar to those contained in this Indenture (an “Asset Sale Offer”) to purchase on a pro rata basis (with the Excess Asset Sale Proceeds prorated between the Holders of the Notes and such holders of such other Senior Indebtedness based upon outstanding aggregate principal amounts) the maximum principal amount of the Notes and such other Senior Indebtedness that may be purchased or prepaid, as applicable, out of the prorated Excess Asset Sale 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. To the extent that the aggregate principal amount of Notes and other Senior Indebtedness tendered (and electing to be redeemed or repaid, as applicable) pursuant to an Asset Sale Offer is less than the Excess Asset Sale Proceeds, the Company and its Restricted Subsidiaries may use any remaining Excess Asset Sale Proceeds for general corporate purposes and any other purpose not prohibited by this Indenture. Upon completion of the offer to purchase, the amount of Excess Asset Sale Proceeds shall 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 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, 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 the Company’s compliance with such securities laws or regulations.invested
Appears in 1 contract
Samples: Indenture (Printpack Inc)
Asset Sales. The Company will shall not, and will shall not permit any of its Restricted Subsidiaries to, consummate cause, make or suffer to exist an Asset Sale unless:
unless (1i) the Company (or the Restricted Subsidiary, as the case may be, receives ) received consideration at the time of the such Asset Sale at least equal to the Fair Market Value fair market value (measured evidenced by a resolution of the Board of Directors set forth in an Officers' Certificate delivered to the Trustee (as defined in the Indenture as in effect as of the date of the definitive agreement with respect to such Asset SaleClosing Date)) of the assets or Equity Interests issued or sold or otherwise disposed of; and
of and (2ii) at least 7580% of the consideration therefor received in by Company or such Asset Sale Restricted Subsidiary is in the form of cash or Cash Equivalents; provided that any the amount of the following items shall be deemed to be cash and Cash Equivalents for the purposes of this clause (2):
(ax) the assumption of any liabilities (as shown on the Company’s 's or the such Restricted Subsidiary’s 's most recent balance sheet) of the Company or any Restricted Subsidiary of the Company (other than contingent liabilities and liabilities that are by their terms subordinated to the Senior Subordinated Notes issued under this Indenture or any Subsidiary Guaranteeguarantee thereof) that are assumed by the transferee of any such assets pursuant to a customary novation agreement that releases the Company or the such Restricted Subsidiary from further liability;
, (by) any securities, Excludable Current Liabilities and (z) any notes or other obligations received by the Company or any such Restricted Subsidiary from such transferee that are immediately converted by the Company or the such Restricted Subsidiary into cash or Cash Equivalents within 180 days following their receipt (to the extent of the cash or Cash Equivalents received); and
(c) any stock or assets of the kind referred to in clauses (b) and (d) of the next paragraph of this Section 4.10. Within 365 days after the receipt of any Net Proceeds from an Asset Sale, the Company or the Restricted Subsidiary, as the case may be, may apply such Net Proceeds, at its option:
(a) to prepay, repay, purchase, repurchase or redeem any secured Indebtedness of the Company or any Restricted Subsidiary of the Company;
(b) to acquire a controlling interest in another business or all or substantially all of the assets or operating line of another business, in each case engaged in a Permitted Business;
(c) to make capital expenditures; or
(d) to acquire other non-current assets to be used in a Permitted Business. Pending the final application of any such Net Proceeds, the Company may temporarily reduce Indebtedness under any Credit Facility or otherwise expend or invest such Net Proceeds in any manner that is not prohibited by this Indenture. Any Net Proceeds from Asset Sales described in this paragraph that are not applied or invested as provided in the first sentence of this paragraph of this Section 4.10 shall be deemed to constitute “Excess Asset Sale Proceeds.” When the aggregate amount of Excess Asset Sale Proceeds exceeds $10.0 million, the Company will be required under this Indenture to make an offer to the Holders of Notes issued thereunder and the holders of any other Senior Indebtedness that is subject to requirements with respect to the application of net proceeds from asset sales that are substantially similar to those contained in this Indenture (an “Asset Sale Offer”) to purchase on a pro rata basis (with the Excess Asset Sale Proceeds prorated between the Holders of the Notes and such holders of such other Senior Indebtedness based upon outstanding aggregate principal amounts) the maximum principal amount of the Notes and such other Senior Indebtedness that may be purchased or prepaid, as applicable, out of the prorated Excess Asset Sale 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. To the extent that the aggregate principal amount of Notes and other Senior Indebtedness tendered (and electing to be redeemed or repaid, as applicable) pursuant to an Asset Sale Offer is less than the Excess Asset Sale Proceeds, the Company and its Restricted Subsidiaries may use any remaining Excess Asset Sale Proceeds for general corporate purposes and any other purpose not prohibited by this Indenture. Upon completion of the offer to purchase, the amount of Excess Asset Sale Proceeds shall 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 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, 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 the Company’s compliance with such securities laws or regulationsprovision.
Appears in 1 contract