Asset Sales. The Company shall not, and 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 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 set forth in an Officers' Certificate delivered to the Trustee; and (3) at least 75% of the consideration received in the Asset Sale by the Company or such Restricted Subsidiary is in the form of cash. For purposes of this provision, each of the following will be deemed to be cash: (a) any liabilities, as shown on the Company's or such Restricted Subsidiary's most recent balance sheet, of the Company or any Restricted Subsidiary (other than contingent liabilities and liabilities that are by their terms subordinated to the Notes or any Subsidiary Guarantee) that are assumed by the transferee of any such assets pursuant to a customary novation agreement that releases the Company or such Restricted Subsidiary from further liability; (b) any securities, notes or other obligations received by the Company or any such Restricted Subsidiary from such transferee that are converted within 30 days by the Company or such Restricted Subsidiary into cash, to the extent of the cash received in that conversion; and (c) any payment of Senior Debt secured by the assets sold in the Asset Sale. Within 365 days after the receipt of any Net Proceeds from an Asset Sale, the Company may apply those Net Proceeds at its option: (1) to repay Senior Debt and, if the Senior Debt repaid is revolving credit Indebtedness, to correspondingly reduce commitments with respect thereto; (2) to acquire all or substantially all of the assets of, or a majority of the Voting Stock of, another Permitted Business; (3) to make capital expenditures; (4) to acquire other long-term assets that are used or useful in a Permitted Business; or (5) for any combination of clauses (1) through (4) above. Pending the final application of any Net Proceeds, the Company may temporarily reduce revolving credit borrowings or otherwise invest the Net Proceeds in any manner that is not prohibited by this Indenture. Any Net Proceeds from Asset Sales that are not applied or invested as provided in the preceding paragraph will constitute "Excess Proceeds." When the aggregate amount of Excess Proceeds exceeds $5.0 million within five business days thereof, the Company will make an Asset Sale Offer to all Holders of Notes and all holders of other Indebtedness that is pari passu with the Notes containing provisions similar to those set forth in this Indenture with respect to offers to purchase or redeem with the proceeds of sales of assets in accordance with Section 3.09 hereof to purchase the maximum principal amount of Notes and such other pari passu Indebtedness that may be purchased out of the Excess Proceeds. The offer price in any Asset Sale Offer will be equal to 100% of principal amount plus accrued and unpaid interest and Additional Interest, if any, to the date of purchase, and will be payable in cash. If any Excess Proceeds remain after consummation of an Asset Sale Offer, the Company may use those Excess Proceeds for any purpose not otherwise prohibited by this Indenture. If the aggregate principal amount of Notes and other pari passu Indebtedness tendered into such Asset Sale Offer exceeds the amount of Excess Proceeds, the Trustee shall select the Notes and such other pari passu Indebtedness to be purchased on a pro rata basis based on the principal amount of Notes and such other pari passu Indebtedness tendered. Upon completion of each Asset Sale Offer, the amount of Excess Proceeds will be reset at zero. The Company shall comply with the requirements of Rule 14e-1 under the Exchange Act and any other securities laws and regulations thereunder to the extent 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 4.10 of this Indenture, the Company shall comply with the applicable securities laws and regulations and shall not be deemed to have breached its obligations under those provisions of this Indenture by virtue of such conflict.
Appears in 2 contracts
Sources: Indenture (Icon Health & Fitness Inc), Indenture (Icon Health & Fitness Inc)
Asset Sales. The Company shall Borrower will not, and shall will not permit any of its Restricted Subsidiaries Subsidiary to, consummate an Asset Sale unless:
(1) the Company (or the Restricted Subsidiarysell, as the case may be) receives consideration at the time transfer, lease, license otherwise dispose of the Asset Sale at least equal to the fair market value any asset, including any Equity Interest 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 set forth in an Officers' Certificate delivered to the Trustee; and
(3) at least 75% of the consideration received in the Asset Sale by the Company or such any Restricted Subsidiary is in the form of cash. For purposes of this provisionowned by it (any such transaction a “Disposition”), each of the following will be deemed to be cashexcept:
(a) any liabilities, as shown on the Company's or such Restricted Subsidiary's most recent balance sheet, of the Company or any Restricted Subsidiary (other than contingent liabilities and liabilities that are by their terms subordinated to the Notes or any Subsidiary Guarantee) that are assumed by the transferee of any such assets pursuant to a customary novation agreement that releases the Company or such Restricted Subsidiary from further liabilitySpecified Sale;
(b) Dispositions of assets (i) among the Borrower and the Guarantors and (ii) from 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 is not a Guarantor to any Loan Party or such another Restricted Subsidiary into cash, to the extent of the cash received in that conversion; andSubsidiary;
(c) any payment sale of Senior Debt secured Transferred Assets by the assets sold such Person to a Receivables Financing SPC and subsequently to a Receivables Financier in the Asset Sale. Within 365 days after the receipt of any Net Proceeds from an Asset Sale, the Company may apply those Net Proceeds at its option:
(1) to repay Senior Debt and, if the Senior Debt repaid is revolving credit Indebtedness, to correspondingly reduce commitments connection with respect theretoa Permitted Receivables Financing;
(2d) to acquire all or substantially all of the assets of, or a majority of the Voting Stock of, another Permitted Business(i) sale and leaseback transactions permitted by Section 8.06;
(3e) to make capital expendituresthe extent constituting a Disposition, the creation of Liens, the making of investments, the consummation of fundamental changes and the making of Restricted Payments permitted by Sections 8.02, 8.03 (other than Section 8.03(a)(iv)), 8.04 and 8.07, respectively;
(4f) to acquire other long-term assets that are used or useful in the extent constituting a Permitted Business; orDisposition, the unwinding of any Swap Contract pursuant to its terms;
(5g) for any combination transfers of clauses condemned real property as a result of the exercise of “eminent domain” or other similar policies to the respective Governmental Authority or agency that has condemned such property (1whether 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 as part of an insurance settlement;
(h) through (4) above. Pending the final application Dispositions of any Net Proceeds, the Company may temporarily reduce revolving credit borrowings or otherwise invest the Net Proceeds in any manner that is not prohibited by this Indenture. Any Net Proceeds from Asset Sales that are not applied or invested other assets so long as provided in the preceding paragraph will constitute "Excess Proceeds." When the aggregate amount thereof sold or otherwise disposed of Excess Proceeds exceeds $5.0 million within five business days thereof, in any single Fiscal Year by the Company will make an Asset Sale Offer to all Holders Borrower and its Restricted Subsidiaries shall not have a book value (as determined in good faith by the Borrower) in excess of Notes and all holders of other Indebtedness that is pari passu with the Notes containing provisions similar to those set forth in this Indenture with respect to offers to purchase ten percent (10%) (or redeem with the proceeds of sales of assets in accordance with Section 3.09 hereof to purchase the maximum principal amount of Notes and such other pari passu Indebtedness that may be purchased out fifteen percent (15%) during any Collateral Suspension Period) of the Excess Proceeds. The offer price in any Asset Sale Offer will be equal to 100% of principal amount plus accrued and unpaid interest and Additional Interest, if any, to the date of purchase, and will be payable in cash. If any Excess Proceeds remain after consummation of an Asset Sale Offer, the Company may use those Excess Proceeds for any purpose not otherwise prohibited by this Indenture. If the aggregate principal amount of Notes and other pari passu Indebtedness tendered into such Asset Sale Offer exceeds the amount of Excess Proceeds, the Trustee shall select the Notes and such other pari passu Indebtedness to be purchased on a pro rata basis based Consolidated Total Assets owned on the principal amount later of Notes and such other pari passu Indebtedness tendered. Upon completion the Closing Date or the last day of each Asset Sale Offer, the amount of Excess Proceeds will be reset at zero. The Company shall comply with the requirements of Rule 14e-1 under the Exchange Act and any other securities laws and regulations thereunder immediately prior Fiscal Year; provided that to the extent those laws any such Disposition or series of related Dispositions involve assets or property with an aggregate fair market value in excess of $10,000,000 (i) no Event of Default shall have occurred and regulations be continuing at the time of such Disposition, (ii) such Disposition is for at least fair market value (as determined in good faith by the Borrower) and (iii) the consideration received by the Borrower or the applicable Restricted Subsidiary for such Disposition shall consist of at least 75% cash and Cash Equivalent (it being understood that for purposes of this clause (iii) the following shall be deemed to be cash and Cash Equivalents (x) any liabilities relating to any asset or of any Restricted Subsidiary that is subject to such Disposition (other than liabilities that are applicable in connection with each repurchase of Notes pursuant expressly subordinated to an Asset Sale Offer. To the Obligations) to the extent that the provisions of Borrower and its Restricted Subsidiaries are released from any securities laws liability thereunder, (y) any note or regulations conflict with security that is sold for cash and Cash Equivalents by the provisions of Section 3.09 Borrower or 4.10 of this Indenture, the Company shall comply with the applicable securities laws Restricted Subsidiary within 180 days following the date of receipt thereof and regulations (z) Designated Non-Cash Consideration in an aggregate amount for all such Dispositions not to exceed $50,000,000 at any time outstanding (without giving effect to any write-down or write–off thereof));
(i) non-exclusive licenses or sublicenses of Intellectual Property in the ordinary course of business and shall not be deemed abandonment or lapse of Intellectual Property that is, in the reasonable business judgment of the Borrower or its Restricted Subsidiary, no longer used in or useful in the conduct of their respective businesses; and
(j) sales of non-core assets acquired pursuant to have breached its obligations under those provisions of this Indenture by virtue of such conflicta Permitted Acquisition.
Appears in 2 contracts
Sources: Credit Agreement (Lamb Weston Holdings, Inc.), Credit Agreement (Lamb Weston Holdings, Inc.)
Asset Sales. The Company Partnership shall not, and shall not permit any of its Restricted Subsidiaries to, consummate an Asset Sale unless:
: (1a) the Company Partnership (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 of the assets or Equity Interests issued or sold or otherwise disposed of;
; (2b) the such fair market value is determined by the Company's Partnership’s Board of Directors and evidenced by a resolution of the Board of Directors as set forth in an Officers' ’ Certificate delivered to the Trustee; and
and (3c) at least 75% of the consideration therefor received in the Asset Sale by the Company Partnership or such Restricted Subsidiary is in the form of cash. For purposes of this provisionprovision and not for purposes of the definition of “Net Proceeds” (except to the extent set forth in such definition with respect to the conversion of non-cash proceeds to cash), each of the following will shall be deemed to be cash:
: (ax) any liabilities, liabilities (as shown on the Company's Partnership’s or such Restricted Subsidiary's ’s most recent balance sheet, ) of the Company Partnership or any Restricted Subsidiary (other than contingent liabilities and liabilities that are by their terms subordinated to the Notes or any Subsidiary Restricted Subsidiary’s Guarantee) that are assumed by the transferee of any such assets pursuant to a customary novation agreement that releases the Company Partnership or such Restricted Subsidiary from further liability;
; and (by) any securities, notes Notes or other obligations received by the Company Partnership or any such Restricted Subsidiary from such transferee that are contemporaneously (subject to ordinary settlement periods) converted within 30 days by the Company Partnership or such Restricted Subsidiary into cash, cash (to the extent of the cash received in that conversion; and
(c) any payment of Senior Debt secured by the assets sold in the Asset Sale). Within 365 270 days after the receipt of any Net Proceeds from an Asset Sale, the Company Partnership or the Restricted Subsidiary may apply those such Net Proceeds at its option:
(1) to repay Senior Debt and, if the Senior Debt repaid is revolving credit Indebtedness, to correspondingly reduce commitments with respect thereto;
(2) to acquire all or substantially all of the assets of, or a majority of the Voting Stock of, another Permitted Business;
(3) to make a capital expenditures;
(4) to expenditure, improve real property or acquire other long-term assets that are used or useful in a line of business permitted under Section 4.14 hereof; provided, however, that the Partnership or the Restricted Subsidiary, as the case may be, grants to the Trustee, on behalf of the Holders of the Notes a first priority perfected security interest, subject to Permitted Business; or
(5) for Liens, on any combination such property or assets acquired or constructed with the Net Proceeds of clauses (1) through (4) aboveany Asset Sale on the terms set forth herein. Pending the final application of any such Net Proceeds, the Company Partnership or the applicable Restricted Subsidiary may temporarily reduce revolving credit borrowings or otherwise invest the such Net Proceeds in any manner that is not prohibited by this IndentureCash Equivalents held in an account in which the Trustee shall have a first priority perfected security interest, subject to Permitted Liens, for the benefit of the Holders of the Notes. Any Net Proceeds from Asset Sales that are not applied or invested as provided in the preceding paragraph will constitute "“Excess Proceeds." When ” Within ten days following the date that the aggregate amount of Excess Proceeds exceeds $5.0 million within five business days thereofmillion, the Company Partnership will make an offer (an “Asset Sale Offer Offer”) to all Holders of Notes and all holders of other Indebtedness that is pari passu with the Notes containing provisions similar to those set forth in this Indenture with respect to offers to purchase or redeem with the proceeds of sales of assets in accordance with Section 3.09 hereof to purchase the maximum principal amount of Notes and such other pari passu Indebtedness that may be purchased out of the Excess Proceeds. The offer price in any Asset Sale Offer will be equal to 100% of principal amount plus accrued and unpaid interest and Additional Interest, if any, Interest to the date of purchase, and will be payable in cash. If any Excess Proceeds remain after consummation of an Asset Sale Offer, the Company Issuers may use those such Excess Proceeds for any purpose not otherwise prohibited by this IndentureIndenture and the Collateral Documents. If the aggregate principal amount of Notes and other pari passu Indebtedness tendered into pursuant to such Asset Sale Offer exceeds the amount of Excess Proceeds, the Trustee shall select the Notes and such other pari passu Indebtedness to be purchased on a pro rata basis based on in the principal amount of Notes and such other pari passu Indebtedness tenderedmanner described under Section 3.02 hereof. Upon completion of each Asset Sale Offer, the amount of Excess Proceeds will shall be reset at zero. The Company shall comply with the requirements of Rule 14e-1 under the Exchange Act and any other securities laws and regulations thereunder to the extent 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 4.10 of this Indenture, the Company shall comply with the applicable securities laws and regulations and shall not be deemed to have breached its obligations under those provisions of this Indenture by virtue of such conflict.
Appears in 2 contracts
Sources: Amended and Restated Indenture (NGA Holdco, LLC), Investment Agreement (Shreveport Capital Corp)
Asset Sales. The Company shall not, and 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 of the assets or Equity Interests issued or sold or otherwise disposed of;
(2ii) in the event of an Asset Sale involving assets having a fair market value in excess of $5.0 million (or in excess of $10.0 million in the case of the sale of Company stores), 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
(3iii) at least 75% of the consideration therefor received in the Asset Sale by the Company or such Restricted Subsidiary is in the form of cashcash or Cash Equivalents. For purposes of this provision, each of the following will shall be deemed to be cash:
(aA) any liabilities, liabilities (as shown on the Company's or such Restricted Subsidiary's most recent balance sheet, ) of the Company or any Restricted Subsidiary (other than contingent liabilities and liabilities that are by their terms subordinated to the Notes or any Subsidiary Guarantee) that are assumed by the transferee of any such assets pursuant to a customary novation agreement that releases the Company or such Restricted Subsidiary from further liability;
(bB) any securities, notes or other obligations received by the Company or any such Restricted Subsidiary from such transferee that are contemporaneously (subject to ordinary settlement periods) converted within 30 days by the Company or such Restricted Subsidiary into cash, cash (to the extent of the cash received in that conversion); and
(cC) any payment of Senior Debt secured Designated Noncash Consideration received by the assets sold Company or any of its Restricted Subsidiaries in such Asset Sale having an aggregate fair market value, taken together with all other Designated Noncash Consideration received since the Asset Saledate of this Indenture pursuant to this clause (C) that is at that time outstanding, not to exceed the greater of (i) $40.0 million and (ii) 10% of Total Assets at the time of the receipt of such Designated Noncash Consideration (with the fair market value of each item of Designated Noncash Consideration being measured at the time received and without giving effect to subsequent changes in value). Within 365 days after the receipt of any Net Proceeds from an Asset Sale, the Company may apply those such Net Proceeds at its option:
(1i) to repay Senior Debt and, or Guarantor Senior Debt (and to correspondingly reduce commitments if the Senior Debt or Guarantor Senior Debt repaid is revolving credit Indebtedness, to correspondingly reduce commitments with respect theretoborrowings);
(2ii) to acquire all or substantially all of the assets of, or a majority of the Voting Stock of, another Permitted Business;
(3iii) to make a capital expenditures;expenditure; and/or
(4iv) to acquire other long-term assets that are used or useful useable in a Permitted Business; or
(5) for any combination of clauses (1) through (4) above. Pending the final application of any such Net Proceeds, the Company may temporarily reduce revolving credit borrowings or otherwise invest the such Net Proceeds in any manner that is not prohibited by this Indenture. Any Net Proceeds from Asset Sales that are not applied or invested as provided in the preceding paragraph will constitute "Excess Proceeds." When the aggregate amount of Excess Proceeds exceeds $5.0 million within five business days thereof15.0 million, the Company will make an Asset Sale Offer to all Holders of Notes and all holders of other Indebtedness that is pari passu with the Notes containing provisions similar to those set forth in this Indenture with respect to offers to purchase or redeem with the proceeds of sales of assets in accordance with Section 3.09 hereof to purchase the maximum principal amount of Notes and such other pari passu Indebtedness that may be purchased out of the Excess Proceeds. The offer price in any Asset Sale Offer will be equal to 100% of the principal amount plus accrued and unpaid interest and Additional Interest, if any, to the date of purchase, and will be payable in cash. If any Excess Proceeds remain after consummation of an Asset Sale Offer, the Company may use those such Excess Proceeds for any purpose not otherwise prohibited by this Indenture. If the aggregate principal amount of Notes and such other pari passu Indebtedness tendered into such Asset Sale Offer exceeds the amount of Excess Proceeds, the Trustee shall select the Notes and such other pari passu Indebtedness to be purchased on a pro rata basis based on the principal amount of Notes and such other pari passu Indebtedness tenderedbasis. Upon completion of each Asset Sale Offer, the amount of Excess Proceeds will shall be reset at zero. The Company shall comply with the requirements of Rule 14e-1 under the Exchange Act and any other securities laws and regulations thereunder to the extent 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 4.10 of this Indenture, the Company shall comply with the applicable securities laws and regulations and shall not be deemed to have breached its obligations under those provisions of this Indenture by virtue of such conflict.
Appears in 2 contracts
Sources: Indenture (Dominos Inc), Indenture (Dominos Pizza Government Services Division Inc)
Asset Sales. The Company Holdings shall not, and shall not permit any of its Restricted Subsidiaries to, consummate an Asset Sale unless:
unless (1i) the Company (Holdings or the applicable 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 of the assets or Equity Interests issued or sold or otherwise disposed of;
of (2) the fair market value is as determined in good faith 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
Management Committee), (3ii) at least 75% of the consideration received in by Holdings or the Restricted Subsidiary, as the case may be, from such Asset Sale by shall be cash or Cash Equivalents; provided that the Company or such Restricted Subsidiary is in the form amount of cash. For purposes of this provision, each of the following will be deemed to be cash:
(a) any liabilities, liabilities (as shown on the Company's Holdings or such Restricted Subsidiary's most recent balance sheet, ) of the Company Holdings or any such Restricted Subsidiary (other than contingent liabilities and liabilities that are by their terms subordinated to the Notes or any Subsidiary GuaranteeDebentures) that are assumed by the transferee of any such assets pursuant to a customary novation agreement that releases the Company or such Restricted Subsidiary from further liability;
assets, (b) any securities, notes Debentures or other obligations received by the Company Holdings or any such Restricted Subsidiary from such transferee that are immediately converted within 30 days by the Company Holdings or such Restricted Subsidiary into cash, cash (to the extent of the cash received in that conversion; and
received), and (c) any payment Designated Noncash Consideration received by Holdings or any of Senior Debt secured by 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 (c) that is at that time outstanding, not to exceed 10% of Total Assets at the assets sold in the Asset Sale. Within 365 days after time of the receipt of any Net Proceeds from such Designated Noncash Consideration (with the fair market value of each item of Designated Noncash Consideration being measured at the time received and without giving effect to subsequent changes in value), shall be deemed to be cash for the purposes of this provision, and (iii) upon the consummation of an Asset Sale, Holdings shall apply, or cause such Restricted Subsidiary to apply, the Company may apply those Net Cash Proceeds at its option:
(1) relating to such Asset Sale within 365 days of receipt thereof to reinvest in Productive Assets or to repay Senior Debt and, if Indebtedness under the Senior Debt repaid is revolving credit Indebtedness, to correspondingly reduce commitments with respect thereto;
(2) to acquire all or substantially all of the assets of, or a majority of the Voting Stock of, another Permitted Business;
(3) to make capital expenditures;
(4) to acquire other long-term assets that are used or useful in a Permitted Business; or
(5) for any combination of clauses (1) through (4) aboveCredit Facilities. Pending the final application of any such Net Cash Proceeds, Holdings or such Restricted Subsidiary may invest such Net Cash Proceeds in Cash Equivalents. On the Company may temporarily reduce revolving credit borrowings 366th day after an Asset Sale or otherwise invest such earlier date, if any, as the Management Committee or such Restricted Subsidiary determines not to apply the Net Cash Proceeds relating to such Asset Sale as set forth in any manner that is not prohibited by this Indenture. Any Net Proceeds from Asset Sales that are not applied or invested as provided in clause (iii) of the preceding paragraph will constitute (each, a "Excess Proceeds." When Net Proceeds Offer Trigger Date"), the aggregate amount of Excess Net Cash Proceeds exceeds $5.0 million within five business days thereof, that have not been applied on or before such Net Proceeds Offer Trigger Date as permitted in clause (iii) of the Company will preceding paragraph (each a "Net Proceeds Offer Amount") shall be applied by Holdings or such Restricted Subsidiary to make an Asset Sale offer to purchase (the "Net Proceeds Offer") on a date (the "Net Proceeds Offer to all Holders of Notes and Payment Date") not less than 30 nor more than 45 days following the applicable Net Proceeds Offer Trigger Date, (x) from all holders of other Indebtedness Senior Notes on a pro rata basis that is pari passu with the Notes containing provisions similar to those set forth in this Indenture with respect to offers to purchase or redeem with the proceeds of sales of assets in accordance with Section 3.09 hereof to purchase the maximum principal amount of Senior Notes and such other pari passu Indebtedness that may be purchased out of equal to the Excess Proceeds. The offer Net Proceeds Offer Amount at a price in any Asset Sale Offer will be equal to 100% of the principal amount of the Senior Notes to be purchased, plus accrued and unpaid interest and Additional InterestLiquidated Damages thereon, if any, to the date of purchase, and will be payable in cash. If any Excess Proceeds remain after consummation of an Asset Sale Offer, the Company may use those Excess Proceeds for any purpose not otherwise prohibited by this Indenture. If the aggregate principal amount of Notes and other pari passu Indebtedness tendered into such Asset Sale Offer exceeds the amount of Excess Proceeds, the Trustee shall select the Notes and such other pari passu Indebtedness to be purchased or (y) from all Holders on a pro rata basis based that amount of Debentures equal to the Net Proceeds Offer Amount at a price equal to 100% of the Accreted Value thereof on the date of repurchase (if such date of repurchase is prior to August 1, 2003) or 100% of the principal amount of Notes the Debentures to be purchased (if such date of repurchase is on or after August 1, 2003), plus, in each case, accrued and unpaid interest and Liquidated Damages thereon, if any, to the date of purchase; provided, however, that if at any time any non-cash consideration (including any Designated Noncash Consideration) received by Holdings or any Restricted Subsidiary of Holdings, as the case may be, in connection with any Asset Sale is converted into or sold or otherwise disposed of for cash (other than interest received with respect to any such other pari passu Indebtedness tenderednon- cash consideration), then such conversion or disposition shall be deemed to constitute an Asset Sale hereunder and the Net Cash Proceeds thereof shall be applied in accordance with this Section 4.10. Notwithstanding the foregoing, if a Net Proceeds Offer Amount is less than $10.0 million, the application of the Net Cash Proceeds constituting such Net Proceeds Offer Amount to a Net Proceeds Offer may be deferred until such time as such Net Proceeds Offer Amount plus the aggregate amount of all Net Proceeds Offer Amounts arising subsequent to the Net Proceeds Offer Trigger Date relating to such initial Net Proceeds Offer Amount from all Asset Sales by Holdings and its Restricted Subsidiaries aggregates at least $10.0 million, at which time Holdings or such Restricted Subsidiary shall apply all Net Cash Proceeds constituting all Net Proceeds Offer Amounts that have been so deferred to make a Net Proceeds Offer (the first date the aggregate of all such deferred Net Proceeds Offer Amounts is equal to $10.0 million or more shall be deemed to be a "Net Proceeds Offer Trigger Date"). Notwithstanding the two immediately preceding paragraphs, Holdings and its Restricted Subsidiaries will be permitted to consummate an Asset Sale without complying with such paragraphs to the extent (i) at least 75% of the consideration for such Asset Sale constitutes Productive Assets, cash, Cash Equivalents and/or Marketable Securities and (ii) such Asset Sale is for fair market value (as determined in good faith by the Management Committee of the General Partner); provided that any consideration not constituting Productive Assets received by Holdings or any of its Restricted Subsidiaries in connection with any Asset Sale permitted to be consummated under this paragraph shall be subject to the provisions of the two preceding paragraphs. Each Net Proceeds Offer will be mailed to the record Holders as shown on the register of Holders within 25 days following the Net Proceeds Offer Trigger Date, with a copy to the Trustee, and shall comply with the procedures set forth in Section 3.09. To the extent that the aggregate amount of Debentures tendered pursuant to a Net Proceeds Offer is less than the Net Proceeds Offer Amount, Holdings may use any remaining Net Proceeds Offer Amount for general corporate purposes. Upon completion of each Asset Sale any such Net Proceeds Offer, the amount of Excess Net Proceeds will Offer Amount shall be reset at zero. The Company Issuers shall comply with the requirements of Rule 14e-1 under the Exchange Act and any other securities laws and regulations thereunder to the extent those such laws and regulations are applicable in connection with each the repurchase of Notes Debentures pursuant to an Asset Sale a Net Proceeds Offer. To the extent that the provisions of any securities laws or regulations conflict with the Asset Sale provisions of Section 3.09 or 4.10 of this Indenture, the Company Issuers shall comply with the applicable securities laws and regulations and shall not be deemed to have breached its obligations under those the Asset Sale provisions of this Indenture by virtue of such conflictthereof.
Appears in 2 contracts
Sources: Indenture (Anthony Crane Sales & Leasing Lp), Indenture (Anthony Crane Holdings Capital Corp)
Asset Sales. The Company shall not, and 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 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 set forth in an Officers' Certificate delivered to the Trustee; and
) of the assets or Equity Interests issued or sold or otherwise disposed of and (3ii) at least 7580% of the consideration therefor received in the Asset Sale by the Company or such Restricted Subsidiary is in the form of cash. For purposes ; PROVIDED that the amount of this provision, each of the following will be deemed to be cash:
(ax) any liabilities, liabilities (as shown on the Company's or such Restricted Subsidiary's most recent balance sheet, ) of the Company or any Restricted Subsidiary (other than contingent liabilities and liabilities that are by their terms subordinated to the Notes or any Subsidiary GuaranteeGuarantee thereof) that are assumed by the transferee of any such assets pursuant to a customary novation agreement that releases the Company or 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 30 days by the Company or such Restricted Subsidiary into cash, cash within 90 days (to the extent of the cash received in that conversion; and
(c) any payment received), shall be deemed to be cash for purposes of Senior Debt secured by the assets sold in the Asset Salethis provision. Within 365 360 days after the receipt of any Net Proceeds from an Asset Sale, the Company may apply those such Net Proceeds Proceeds, at its option:
, (1a) to permanently repay Senior Debt and, if the Senior Debt repaid is revolving credit Indebtedness, (and to correspondingly reduce commitments with respect thereto;
thereto in the case of revolving borrowings) or existing 2003 Notes, or (2b) to acquire all the acquisition of a controlling interest in another business, the making of a capital expenditure or substantially all the acquisition of the assets of, or a majority of the Voting Stock of, another Permitted Business;
(3) to make capital expenditures;
(4) to acquire other long-term assets that are used or useful assets, in each case, in a Permitted Business; or
(5) for any combination of clauses (1) through (4) above. Pending the final application of any such Net Proceeds, the Company may temporarily reduce the revolving credit borrowings Indebtedness under the Credit Facility or otherwise invest the such Net Proceeds in any manner that is not prohibited by this Indenture. Any Net Proceeds from Asset Sales that are not applied or invested as provided in the preceding first sentence of this paragraph will be deemed to constitute "Excess ProceedsEXCESS PROCEEDS." When the aggregate amount of Excess Proceeds exceeds $5.0 million within five business days thereofmillion, the Company will be required to make an Asset Sale Offer offer to all Holders of Notes and all holders of other Indebtedness that is pari passu with the Notes containing provisions similar to those set forth in this Indenture with respect to offers to purchase or redeem with the proceeds of sales of assets in accordance with Section 3.09 hereof (an "ASSET SALE OFFER") to purchase the maximum principal amount of Notes and such other pari passu Indebtedness that may be purchased out of the Excess Proceeds. The , at an offer price in any Asset Sale Offer will be cash in an amount equal to 100% of the principal amount thereof plus accrued and unpaid interest and Additional InterestLiquidated Damages thereon, if any, to the date of purchase, and will be payable in cashaccordance with the procedures set forth in Section 3.09 hereof. If any Excess Proceeds remain after consummation To the extent that the aggregate amount of Notes tendered pursuant to an Asset Sale OfferOffer is less than the Excess Proceeds, the Company may use those any remaining Excess Proceeds for any purpose not otherwise prohibited by this Indenturegeneral corporate purposes. If the aggregate principal amount of Notes and other pari passu Indebtedness tendered into such Asset Sale Offer surrendered by Holders thereof exceeds the amount of Excess Proceeds, the Trustee shall select the Notes and such other pari passu Indebtedness to be purchased on a pro rata basis based on the principal amount of Notes and such other pari passu Indebtedness tenderedPRO RATA basis. Upon completion of each Asset Sale Offersuch offer to purchase, the amount of Excess Proceeds will shall be reset at zero. The Company shall comply with the requirements of Rule 14e-1 under the Exchange Act and any other securities laws and regulations thereunder to the extent 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 4.10 of this Indenture, the Company shall comply with the applicable securities laws and regulations and shall not be deemed to have breached its obligations under those provisions of this Indenture by virtue of such conflict.
Appears in 2 contracts
Sources: Indenture (Musicland Stores Corp), Indenture (Musicland Group Inc /De)
Asset Sales. The Company Borrower shall not, and shall not permit any Restricted Subsidiary to, cause or make an Asset Sale, unless (x) the Borrower or any of its Restricted Subsidiaries toSubsidiaries, consummate an as the case may be, receives consideration at the time of such Asset Sale unless:
at least equal to the Fair Market Value (1as determined in good faith by the Borrower) of the Company assets sold or otherwise disposed of, and (y) at least 75% of the consideration therefor received by the Borrower or the such Restricted Subsidiary, as the case may be) receives consideration at the time of the Asset Sale at least equal to the fair market value of the 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 set forth in an Officers' Certificate delivered to the Trustee; and
(3) at least 75% of the consideration received in the Asset Sale by the Company or such Restricted Subsidiary , is in the form of cash. For purposes of this provision, each of Cash Equivalents or Additional Assets; provided that the following will be deemed to be cashamount of:
(ai) any liabilities, liabilities (as shown on the Company's Borrower’s or such a Restricted Subsidiary's ’s most recent balance sheet, sheet or in the notes thereto) of the Company Borrower or any Restricted Subsidiary (other than contingent liabilities and liabilities that are by their terms subordinated to the Notes Loans 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 transaction with such Restricted Subsidiary from further liability;transferee,
(bii) any securities, notes or other obligations or other securities or assets received by the Company Borrower or any such Restricted Subsidiary from such transferee that are converted within 30 days by the Company Borrower or such Restricted Subsidiary into cash, cash within 180 days of the receipt thereof (to the extent of the cash received in that conversion; received),
(iii) with respect to any Asset Sale of Oil and Gas Properties by the Borrower or any Restricted Subsidiary, the costs and expenses related to the exploration, development, completion or production of such Oil and Gas Properties and activities related thereto agreed to be assumed by the transferee (or an Affiliate thereof), and
(civ) any payment of Senior Debt secured Designated Non-cash Consideration received by the assets sold Borrower or any of its Restricted Subsidiaries in such Asset Sale having an aggregate Fair Market Value (as determined in good faith by the Asset Sale. Within 365 days after Borrower), taken together with all other Designated Non-cash Consideration received pursuant to this clause (iv) that is at that time outstanding, not to exceed the greater of 4% of Adjusted Consolidated Net Tangible Assets and $300.0 million at the time of the receipt of any Net Proceeds from an Asset Sale, the Company may apply those Net Proceeds at its option:
such Designated Non-cash Consideration (1) to repay Senior Debt and, if the Senior Debt repaid is revolving credit Indebtedness, to correspondingly reduce commitments with respect thereto;
(2) to acquire all or substantially all of the assets of, or a majority of the Voting Stock of, another Permitted Business;
(3) to make capital expenditures;
(4) to acquire other long-term assets that are used or useful in a Permitted Business; or
(5) for any combination of clauses (1) through (4) above. Pending the final application of any Net Proceeds, the Company may temporarily reduce revolving credit borrowings or otherwise invest the Net Proceeds in any manner that is not prohibited by this Indenture. Any Net Proceeds from Asset Sales that are not applied or invested as provided in the preceding paragraph will constitute "Excess Proceeds." When the aggregate amount of Excess Proceeds exceeds $5.0 million within five business days thereof, the Company will make an Asset Sale Offer to all Holders of Notes and all holders of other Indebtedness that is pari passu with the Notes containing provisions similar to those set forth in this Indenture with respect to offers to purchase or redeem with the proceeds of sales of assets in accordance with Section 3.09 hereof to purchase the maximum principal amount of Notes and such other pari passu Indebtedness that may be purchased out of the Excess Proceeds. The offer price in any Asset Sale Offer will be equal to 100% of principal amount plus accrued and unpaid interest and Additional Interest, if any, to the date of purchase, and will be payable in cash. If any Excess Proceeds remain after consummation of an Asset Sale Offer, the Company may use those Excess Proceeds for any purpose not otherwise prohibited by this Indenture. If the aggregate principal amount of Notes and other pari passu Indebtedness tendered into such Asset Sale Offer exceeds the amount of Excess Proceeds, the Trustee shall select the Notes and such other pari passu Indebtedness to be purchased on a pro rata basis based on the principal amount of Notes and such other pari passu Indebtedness tendered. Upon completion Fair Market Value of each Asset Sale Offeritem of Designated Non-cash Consideration being measured at the time received and without giving effect to subsequent changes in value), the amount of Excess Proceeds will be reset at zero. The Company shall comply with the requirements of Rule 14e-1 under the Exchange Act and any other securities laws and regulations thereunder to the extent 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 4.10 of this Indenture, the Company shall comply with the applicable securities laws and regulations and shall not be deemed to have breached its obligations under those provisions be Cash Equivalents for the purposes of this Indenture by virtue of such conflictSection 6.06.
Appears in 2 contracts
Sources: Consent and Exchange Agreement (EP Energy LLC), Term Loan Agreement (MBOW Four Star, L.L.C.)
Asset Sales. (a) The Company shall Parent will not, and shall will not cause or permit any of its Restricted Subsidiaries to, directly or indirectly, consummate an Asset Sale unless:
(1i) the Company Parent (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 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 set forth in an Officers' Certificate delivered to the Trustee; and
(3ii) at least 75% of the consideration received in the Asset Sale by the Company Parent or such Restricted Subsidiary is in the form of cashcash or Cash Equivalents. For purposes of this provision, each of the following will be deemed to be cash:
(aA) any liabilities, as shown recorded on the Company's or such Restricted Subsidiary's most recent balance sheet, sheet of the Company Parent or any Restricted Subsidiary (other than contingent liabilities and liabilities that are by their terms subordinated to the Notes or any Subsidiary Note Guarantee) ), that are assumed by the transferee of any such assets pursuant and as a result of which the Parent and its Restricted Subsidiaries are no longer obligated with respect to a customary novation agreement that releases the Company such liabilities or such Restricted Subsidiary from are indemnified against further liabilityliabilities;
(bB) any securities, notes or other obligations received by the Company Parent or any such Restricted Subsidiary from such transferee that are converted within 30 days by the Company Parent or such Restricted Subsidiary into cashcash or Cash Equivalents within 120 days following the closing of the Asset Sale, to the extent of the cash or Cash Equivalents received in that conversion;
(C) any Capital Stock or assets of the kind referred to in clauses (iii) or (v) of Section 4.10(b);
(D) Indebtedness of any Restricted Subsidiary that is no longer a Restricted Subsidiary as a result of such Asset Sale, to the extent that the Parent and each other Restricted Subsidiary are released from any Guarantee of such Indebtedness in connection with such Asset Sale; and
(cE) consideration consisting of Indebtedness of the Issuer or any payment of Senior Debt secured Guarantor (other than Indebtedness that is by its terms subordinated to the assets sold in Notes or any Note Guarantee) received from Persons who are not the Asset Sale. Parent or any Restricted Subsidiary.
(b) Within 365 days after the receipt of any Net Proceeds from an Asset Sale, the Company Parent (or the applicable Restricted Subsidiary, as the case may be) may apply those such Net Proceeds (at its option:the option of the Parent or Restricted Subsidiary):
(1i) to purchase the Notes pursuant to an offer to all holders of Notes; provided that, all Holders shall be offered the same offer price for the Notes, plus accrued and unpaid interest to (but not including) the date of purchase (a “Notes Offer”);
(ii) to purchase, prepay or redeem or repay Senior Debt Indebtedness which is pari passu in right of payment with the Notes or any of the Note Guarantees and secured in whole or part by the Collateral and, subject to the proviso below, if the Senior Debt Indebtedness repaid is revolving credit Indebtedness, to correspondingly reduce commitments with respect thereto;
(2iii) to acquire all or substantially all of the assets of, or a majority of the Voting 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;
(3iv) to make a capital expendituresexpenditure;
(4v) to acquire other long-term assets (other than Capital Stock) that are used or useful in a Permitted Business;
(vi) to the extent such Net Proceeds derive from an Asset Sale in respect of an asset which immediately prior to such Asset Sale did not constitute Collateral, to repurchase, prepay, redeem or repay Indebtedness and, subject to the proviso below, if the Indebtedness repaid is revolving credit indebtedness, to correspondingly reduce commitments with respect thereto, of a Restricted Subsidiary which is not a Guarantor, or Indebtedness of the Issuer or a Guarantor that is by its terms not subordinated to the Notes or the applicable Note Guarantee;
(vii) enter into a binding commitment to apply the Net Proceeds pursuant to clause (iii), (v) or (vi) above; provided that such binding commitment 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 365 day period; or
(5viii) for any combination of the foregoing. provided, however, (x) if the Indebtedness repaid pursuant to clauses (1ii) through and (4vi) above. above is revolving credit indebtedness, the commitments with respect thereto shall not be required to be cancelled to the extent the aggregate principal amount of repayments of revolving credit indebtedness made pursuant to such clauses since the Issue Date does not exceed US$100 million and (y) if the assets sold constitute Collateral, subject to the Agreed Security Principles, the Parent shall pledge or shall cause the applicable Restricted Subsidiary to pledge any acquired Capital Stock or assets (to the extent such assets were of a category of assets included in the Collateral as of the Issue Date) referred to in clause (iii) or (v) above in favor of the Notes on a first-ranking basis (subject to pre-existing Liens and Permitted Collateral Liens).
(c) Pending the final application of any Net Proceeds, the Company Parent (or the applicable Restricted Subsidiary) may temporarily reduce revolving credit borrowings or otherwise invest the Net Proceeds in any manner that is not prohibited by this Indenture. .
(d) Any Net Proceeds from Asset Sales that are not applied or invested used as provided in the preceding paragraph Section 4.10(b) will constitute "“Excess Proceeds." When ”
(e) The Issuer may also at any time, and the aggregate amount of Issuer will within 30 Business Days after the Excess Proceeds exceeds $5.0 million within five business days thereofexceed US$25.0 million, the Company will make an offer (an “Asset Sale Offer Offer”) to all Holders of the Notes and may make an offer to all holders Holders of other Indebtedness that is pari passu with the Notes containing provisions similar to those set forth in this Indenture or any Note Guarantees with respect to offers to purchase purchase, prepay or redeem with the proceeds of sales of assets in accordance with Section 3.09 hereof to purchase purchase, prepay or redeem the maximum principal amount of Notes and such other pari passu Indebtedness (plus all accrued interest on the Indebtedness and the amount of all fees and expenses, including premia, incurred in connection therewith) that may be purchased purchased, prepaid or redeemed out of the Excess Proceeds. The offer price for the Notes in any Asset Sale Offer will be equal to 100% of the principal amount amount, plus accrued and unpaid interest and Additional InterestAmounts, if any, to 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 cash. If any Excess Proceeds remain after consummation of an Asset Sale Offer, the Company Parent may use those Excess Proceeds for general corporate purposes and any other purpose not otherwise prohibited by this Indenture. If the aggregate principal amount of Notes and other pari passu Indebtedness tendered into (or to be prepaid or redeemed in connection with) such Asset Sale Offer exceeds the amount of Excess Proceeds, the Trustee shall will select the Notes and such other pari passu Indebtedness to be purchased on a pro rata basis (or in the manner described in Section 3.02 and Section 13.01), based on the principal amount of Notes and such other pari passu Indebtedness tenderedamounts tendered or required to be prepaid or redeemed. Upon completion of each Asset Sale Offer, the amount of Excess Proceeds will be reset at to zero. .
(f) The Company shall Issuer will comply with the requirements of Rule 14e-1 under the U.S. Exchange Act and any other applicable securities laws and regulations thereunder to the extent those laws and regulations are applicable in connection with each repurchase of Notes pursuant to an Asset Sale Offer or a Notes Offer. To the extent that the provisions of any securities laws or regulations conflict with the Asset Sale Offer or Notes Offer provisions of Section 3.09 or 4.10 of this Indenture, the Company shall Issuer will comply with the applicable securities laws and regulations and shall will not be deemed to have breached its obligations under those the Asset Sale Offer or Notes Offer provisions of this Indenture by virtue of such conflictcompliance.
Appears in 2 contracts
Sources: Indenture (Sappi LTD), Indenture (Sappi LTD)
Asset Sales. The Company shall not, and 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 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
(3) at least 75% of the consideration received in the Asset Sale by the Company or such Restricted Subsidiary is in the form of cash. For purposes of this provisionclause (3) only, each of the following will be deemed to be cash:
(a) any liabilities, as shown on the Company's or such Restricted Subsidiary's most recent balance sheet, of the Company or any Restricted Subsidiary (other than contingent liabilities and liabilities that are by their terms subordinated to the Notes or any Subsidiary Note Guarantee) that are assumed by the transferee of any such assets pursuant to a customary novation agreement that releases the Company or such Restricted Subsidiary from further liability;
(b) any securities, notes or other obligations received by the Company or any such Restricted Subsidiary from such transferee that are converted within 30 90 days of the applicable Asset Sale by the Company or such Restricted Subsidiary into cashcash or Cash Equivalents, to the extent of the cash or Cash Equivalents 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; and
(cd) any payment 100% of Senior Debt secured the Indebtedness actually received by the Company as consideration for the sale or other disposition of an Unoccupied Facility. 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 the first paragraph of Section 4.09 hereof and (2) the Board of Directors of the Company determines that the fair market value of the assets sold received by the Company in the Asset SaleSwap is not less than the fair market value of 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 may apply those Net Proceeds at its optionProceeds:
(1) to repay Senior Debt permanently Indebtedness under a Credit Facility and, if the Senior Debt Indebtedness permanently repaid is revolving credit Indebtedness, to correspondingly reduce commitments with respect thereto;
(2) to acquire all or substantially all of the assets of, or a majority of the Voting Stock of, another Permitted Business;
(3) 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);
(4) to acquire other long-term assets that are used or useful in a Permitted Business; or
(5) with respect to the sale of the Northeast Ohio Correctional Facility in Youngstown, Ohio, the Company may use 50% of the Net Proceeds from such sale to repurchase, redeem or otherwise acquire or retire for any combination value shares of clauses (1) through (4) abovethe Company's Series B Preferred Stock. Pending the final application of any Net Proceeds, the Company may temporarily reduce revolving credit borrowings or otherwise invest the Net Proceeds in any manner that is not prohibited by this Indenture. 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 that are not applied or invested as provided in the preceding paragraph will shall constitute "Excess Proceeds." When Within five days of each date on which the aggregate amount of Excess Proceeds exceeds $5.0 million within five business days thereof15.0 million, the Company will shall make an Asset Sale Offer to all Holders of Notes and and, at the Company's option, all holders of other Indebtedness that is pari passu with the Notes containing provisions similar to those set forth in this Indenture with respect to offers to purchase or redeem with the proceeds of sales of assets in accordance with Section 3.09 hereof to purchase the maximum principal amount of Notes and such other pari passu Indebtedness that may be purchased out of the Excess Proceeds. The offer price in any Asset Sale Offer will shall be equal to 100% of principal amount plus accrued and unpaid interest and Additional Interest, if any, to the date of purchase, and will shall be payable in cash. If any Excess Proceeds remain after consummation of an Asset Sale Offer, the Company may use those Excess Proceeds for any purpose not otherwise prohibited by this Indenture. If the aggregate principal amount of Notes and other pari passu Indebtedness tendered into such Asset Sale Offer exceeds the amount of Excess Proceeds, the Trustee shall select the Notes and such other pari passu Indebtedness to be purchased on a pro rata basis based on the principal amount of Notes and such other pari passu Indebtedness tenderedbasis. Upon completion of each Asset Sale Offer, the amount of Excess Proceeds will shall be reset at zero. The Company shall comply with the requirements of Rule 14e-1 under the Exchange Act and any other securities laws and regulations thereunder to the extent 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 Section 3.09 or 4.10 of this Indenture, the Company shall comply with the applicable securities laws and regulations and shall not be deemed to have breached its obligations under those the Asset Sale provisions of this Indenture by virtue of such conflict.
Appears in 2 contracts
Sources: Supplemental Indenture (Cca Properties of America LLC), Supplemental Indenture (Corrections Corp of America)
Asset Sales. The Company shall not, and 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 (as determined in accordance with the definition of such term, the results of which determination shall be set forth in an Officers’ Certificate delivered to the Trustee) of the assets properties, assets, rights or Equity Interests issued or sold or otherwise disposed of;
of and (2) 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; and
(3b) at least 75% of the consideration therefor received in the Asset Sale by the Company or such Restricted Subsidiary is in the form of cash. For purposes cash or Cash Equivalents; provided, however, that the amount of this provision, each of the following will be deemed to be cash:
(ai) any liabilities, liabilities (as shown on the Company's ’s or such Restricted Subsidiary's ’s most recent balance sheet, ) of the Company or any such Restricted Subsidiary (other than contingent liabilities and liabilities that are by their terms subordinated to the Notes or any Subsidiary Guarantee) that are assumed by the transferee of any such assets assets, properties, rights or Equity Interests pursuant to a customary novation agreement that releases the Company or 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 30 180 days by the Company or such Restricted Subsidiary into cash, cash (to the extent of the cash received in that conversion; and
(c) any payment shall each be deemed to be Cash Equivalents for purposes of Senior Debt secured by the assets sold in the Asset Salethis 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 any such Restricted Subsidiary may apply those such Net Proceeds at its option:
to (1a) to permanently repay Senior Debt and, if the Senior Debt repaid is revolving credit Indebtedness, to correspondingly reduce commitments with respect thereto;
(2) to acquire all or substantially all any portion of the principal of any secured Indebtedness (to the extent of the fair value of the assets ofcollateralizing 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 such Restricted Subsidiary enters into a binding agreement to acquire such Productive Assets within such 365-day period, but the consummation of the 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 a majority 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 Voting Stock of18-month period or the effective date of such termination, another Permitted Business;
(3) to make capital expenditures;
(4) to acquire other long-term assets that are used or useful whichever is earlier, such Net Proceeds as provided in a Permitted Business; or
(5) for any combination of clauses (1a) through and (4b) aboveof this paragraph. Pending the final application of any such Net Proceeds, the Company or any such Restricted Subsidiary may temporarily reduce outstanding revolving credit borrowings, including borrowings under the Credit Facility, or otherwise invest the such Net Proceeds in any manner that is not prohibited by this Indenture. Any Net Proceeds from Asset Sales that are not applied or invested as provided in the preceding clauses (a) and (b) of this paragraph will shall be deemed to constitute "“Excess Proceeds." When ” Within 30 days of each date on which the aggregate amount of Excess Proceeds exceeds $5.0 million within five business days thereof20,000,000, the Company will make shall commence an Asset Sale Offer pursuant to all Holders of Notes and all holders of other Indebtedness that is pari passu with the Notes containing provisions similar to those set forth in this Indenture with respect to offers to purchase or redeem with the proceeds of sales of assets in accordance with Section 3.09 hereof to purchase the maximum principal amount of Notes that may be purchased out of Excess Proceeds at an offer price in cash in an amount equal to 100% of the principal amount thereof, plus accrued and unpaid interest, if any, thereon, to the date of purchase, in accordance with the procedures set forth in Section 3.09 hereof; provided, however, that, if the Company is required to apply such other pari passu Indebtedness 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 ProceedsProceeds 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. The offer price in any To the extent that the aggregate principal amount of Notes tendered pursuant to an Asset Sale Offer will be equal is less than the amount that the Company is required to 100% of principal amount plus accrued and unpaid interest and Additional Interest, if any, to the date of purchase, and will be payable in cash. If any Excess Proceeds remain after consummation of an Asset Sale Offer, the Company may use those any remaining Excess Proceeds for general corporate purposes in any purpose manner not otherwise prohibited by this Indenture. If the aggregate principal amount of Notes and other pari passu Indebtedness tendered into such Asset Sale Offer surrendered by Holders thereof exceeds the amount of Excess Proceedsthat the Company is required to purchase, the Trustee shall select the Notes and such other pari passu Indebtedness to be purchased on a pro rata basis based on (with such adjustments as may be deemed appropriate by the principal amount Trustee so that only Notes in minimum denominations of Notes $2,000 and such other pari passu Indebtedness tenderedintegral multiples of $1,000 in excess thereof, shall be purchased). Upon completion of each Asset Sale Offersuch offer to purchase, the amount of Excess Proceeds will shall be reset at zero. The Company shall comply with 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 the Exchange Act and any kind (other securities laws and regulations thereunder to the extent those laws and regulations are applicable in connection with each repurchase of Notes than pursuant to law or regulation) on the ability of the Company to make 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 4.10 of this Indenture, the Company shall comply with the applicable securities laws and regulations and shall not be deemed to have breached its obligations under those provisions of this Indenture by virtue of such conflict.
Appears in 2 contracts
Sources: Indenture (Hornbeck Offshore Services Inc /La), Indenture (Hornbeck Offshore Services Inc /La)
Asset Sales. (a) The Company shall not, and 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 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 (as determined in good faith by the Company) of the assets sold or otherwise disposed of and (y) except in the case of a Permitted Asset Swap, at least 75% of the consideration therefor received by the Company, or such Restricted Subsidiary, as the case may be) receives consideration at the time of the Asset Sale at least equal to the fair market value of the 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 set forth in an Officers' Certificate delivered to the Trustee; and
(3) at least 75% of the consideration received in the Asset Sale by the Company or such Restricted Subsidiary , is in the form of cash. For Cash Equivalents; provided that the amount of the following shall be deemed to be Cash Equivalents for the purposes of this provision, each of the following will be deemed to be cash:
(ai) any liabilities, liabilities (as shown on the Company's ’s or such Restricted Subsidiary's ’s most recent balance sheet, sheet or in the notes thereto) of the Company or any Restricted Subsidiary (other than contingent liabilities and liabilities that are by their terms subordinated to the Notes or any Subsidiary GuaranteeNotes) that are assumed by the transferee of any such assets pursuant to a customary novation agreement that releases the Company or such 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 within 30 days by the Company or such Restricted Subsidiary into cash, Cash Equivalents within 180 days of the receipt thereof (to the extent of the cash received in that conversionCash Equivalents received); and
(ciii) any payment of Senior Debt secured Designated Noncash Consideration received by the assets sold Company or 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 Asset Sale. 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 value).
(b) 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 those the Net Proceeds from such Asset Sale, at its optionoption to:
(1i) 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 repay Senior Debt andall Holders to purchase at a purchase price equal to 100% of the principal amount thereof, plus accrued and unpaid interest, if any, the Senior Debt repaid is revolving credit Indebtednesspro rata principal amount of Notes) or Indebtedness of a Restricted Subsidiary, in each case other than Indebtedness owed to correspondingly reduce commitments with respect theretothe Company or an Affiliate of the Company;
(2ii) to acquire all make an investment in any one or substantially all more businesses, capital expenditures or acquisitions of the other assets of, or a majority of the Voting Stock of, another Permitted Business;
(3) to make capital expenditures;
(4) to acquire other long-term assets that are in each case 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; orand/or
(5iii) make an investment in properties or assets that replace the properties and assets that are the subject of such Asset Sale, or set aside in respect of a project in connection therewith that has been commenced or for any combination of clauses (1) through (4) abovewhich a binding contractual commitment has been entered into. Pending the final application of any such Net Proceeds, the Company or such Restricted Subsidiary may temporarily reduce Indebtedness under a revolving credit borrowings facility, if any, or otherwise invest the 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 Sale that are not applied or invested as provided and within the time period set forth in the preceding first sentence of this paragraph will be deemed to constitute "“Excess Proceeds." ” When the aggregate amount of Excess Proceeds exceeds $5.0 million within five business days thereof10.0 million, the Company will shall make an Asset Sale Offer offer to all Holders of Notes and all holders of other Indebtedness that is pari passu with the Notes containing provisions similar to those set forth in this Indenture with respect to offers to purchase or redeem with the proceeds of sales of assets in accordance with Section 3.09 hereof (an “Asset Sale Offer”) to purchase the maximum principal amount of Notes and such other pari passu Indebtedness that may be purchased out of the Excess Proceeds. The Proceeds at an offer price in any Asset Sale Offer will be cash in an amount equal to 100% of the principal amount thereof, plus accrued and unpaid interest and Additional Interestinterest, if any, to but not including the date fixed for the closing of purchasesuch offer, and in accordance with the procedures set forth in this Indenture. The Company will be payable in cash. If any Excess Proceeds remain after consummation of commence an Asset Sale OfferOffer with respect to Excess Proceeds within ten Business Days after the date that Excess Proceeds exceed $10.0 million by mailing the notice required pursuant to the terms of this Indenture, with a copy to the Trustee. To the extent that the aggregate amount of Notes tendered pursuant to an Asset Sale Offer is less than the Excess Proceeds, the Company may use those any remaining Excess Proceeds for any purpose not otherwise prohibited by this Indenturegeneral corporate purposes. If the aggregate principal amount of Notes and other pari passu Indebtedness tendered into such Asset Sale Offer surrendered by Holders thereof exceeds the amount of Excess Proceeds, the Trustee shall select the Notes and such other pari passu Indebtedness to be purchased on a pro rata basis based on the principal amount of Notes and such other pari passu Indebtedness tenderedpursuant to Section 4.06(c)(3). Upon completion of each any such Asset Sale Offer, the amount of Excess Proceeds will 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 those such laws and or regulations are applicable in connection with each 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 Section 3.09 or 4.10 of this Indenture, the Company shall comply with the applicable securities laws and regulations and shall not be deemed to have breached its obligations under those provisions of described in this Indenture by virtue of such conflictthereof.
Appears in 2 contracts
Sources: Indenture (Otelco Inc.), Indenture (Otelco Telecommunications LLC)
Asset Sales. The Company shall not, and 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 (as determined in accordance with the definition of such term, the results of which determination shall be set forth in an Officers' Certificate delivered to the Trustee) of the assets or Equity Interests issued or sold or otherwise disposed of;
of and (2) 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; and
(3b) at least 75% of the consideration therefor received in the Asset Sale by the Company or such Restricted Subsidiary is in the form of cash. For purposes cash or Cash Equivalents; provided, however, that the amount of this provision, each of the following will be deemed to be cash:
(ai) any liabilities, liabilities (as shown on the Company's or such Restricted Subsidiary's most recent balance sheet, ) of the Company or any such Restricted Subsidiary (other than contingent liabilities and liabilities that are by their terms subordinated to the Notes or any Subsidiary Guaranteeguarantee thereof) that are assumed by the transferee of any such assets pursuant to a customary novation agreement that releases the Company or 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 within 30 days by the Company or such Restricted Subsidiary into cash, cash (to the extent of the cash received in that conversion; and
(creceived) any payment shall be deemed to be cash for purposes of Senior Debt secured by the assets sold in the Asset Salethis Section 4.10. Within 365 days after the receipt of any Net Proceeds from an Asset Sale, the Company or any such Restricted Subsidiary may apply those such Net Proceeds at its option:
to (1a) permanently repay the principal of any secured Indebtedness (to repay Senior Debt and, if the Senior Debt repaid is revolving credit extent of the fair value of the assets securing such Indebtedness, to correspondingly reduce commitments with respect thereto;
as determined by the Board of Directors) or (2b) to acquire all (including by way of a purchase of assets or substantially all 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 assets of, Company or a majority any of its Restricted 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 Voting Stock of, another Permitted Business;
(3effective date of such agreement but no later than two years after the date of receipt of such Net Proceeds.) to make capital expenditures;
(4) to acquire other long-term assets that are used or useful in a Permitted Business; or
(5) for any combination of clauses (1) through (4) above. Pending the final application of any such Net Proceeds, the Company or any such Restricted Subsidiary may temporarily reduce outstanding revolving credit borrowings, including borrowings under the Credit Facility, or otherwise invest the 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 that are not applied or invested as provided in the preceding first sentence of this paragraph will shall be deemed to constitute "Excess Proceeds." When Within 30 days of each date on which the aggregate amount of Excess Proceeds exceeds $5.0 million within five business days thereofmillion, the Company will make an shall commence a pro rata Asset Sale Offer pursuant to all Holders of Notes and all holders of other Indebtedness that is pari passu with the Notes containing provisions similar to those set forth in this Indenture with respect to offers to purchase or redeem with the proceeds of sales of assets in accordance with Section 3.09 hereof to purchase the maximum principal amount of Notes that may be purchased out of Excess Proceeds at an offer price in cash in an amount equal to 100% of the principal amount thereof, plus accrued and unpaid interest, if any, thereon, to the date of purchase, in accordance with the procedures set forth in Section 3.09 hereof; provided, however, that, if the Company is required to apply such other pari passu Indebtedness 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 Excess Proceeds. The offer price in any Asset Sale Offer will be equal to 100% amount of principal amount plus accrued and unpaid interest and Additional Interest, if any, to the date of purchase, and will be payable in cash. If any such Excess Proceeds remain after consummation of an Asset Sale Offermultiplied by a fraction, the Company may use those Excess Proceeds for any purpose not otherwise prohibited by this Indenture. If numerator of which is the aggregate principal amount of Notes outstanding and other pari passu 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 amount of Notes tendered into such pursuant to an Asset Sale Offer is less than the amount that the Company is required to repurchase, the Company may use any remaining Excess Proceeds for general corporate purposes. If the aggregate amount of Notes surrendered by holders thereof exceeds the amount of Excess Proceedsthat the Company is required to repurchase, the Trustee shall select the Notes and such other pari passu Indebtedness to be purchased on a pro rata basis based on (with such adjustments as may be deemed appropriate by the principal amount Trustee so that only Notes in denominations of Notes and such other pari passu Indebtedness tendered$1,000, or integral multiples thereof, shall be purchased). Upon completion of each Asset Sale Offersuch offer to purchase, the amount of Excess Proceeds will shall be reset at zero. The Company shall comply with the requirements of Rule 14e-1 under the Exchange Act and any other securities laws and regulations thereunder to the extent 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 4.10 For purposes of this Indentureparagraph only, the Company any reference herein to "Notes" shall comply with the applicable securities laws and regulations and shall not be deemed to have breached its obligations under those provisions of this Indenture by virtue of such conflictinclude the Notes and the Series A/B Notes, the Series D Notes and the Series F Notes.
Appears in 2 contracts
Sources: Indenture (Saevik Shipping As), Indenture (Trico Marine Services Inc)
Asset Sales. (a) The Company shall not, and 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 value, as determined in good faith by the Company's Board of Directors, 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 set forth in an Officers' Certificate delivered to the Trustee; and
(32) at least 75% of the consideration received in the Asset Sale by the Company or such Restricted Subsidiary is in the form of cashcash or Replacement Assets, or a combination of both. For purposes of this provision, each of the following will be deemed to be cash:
(aA) any liabilities, as shown on the Company's or such Restricted Subsidiary's most recent consolidated balance sheet, of the Company or any Restricted Subsidiary (other than contingent liabilities and liabilities that are by their terms subordinated to the Notes or any Subsidiary GuaranteeGuarantees) that are assumed by the transferee of any such assets pursuant to a customary novation an agreement that releases the Company or such Restricted Subsidiary from further liability;
(bB) any securities, notes or other obligations received by the Company or any such Restricted Subsidiary from such transferee that are converted within 30 days by the Company or such Restricted Subsidiary into cash, to the extent of the cash received in that conversion, within 180 days after receipt;
(C) Cash Equivalents; and
(cD) any payment of Senior Debt secured Designated Noncash Consideration received by the assets sold Company or any of its Restricted Subsidiaries in the Asset Sale. .
(b) Within 365 days after the receipt of any Net Proceeds from an Asset Sale, the Company or any Restricted Subsidiary may apply those such Net Proceeds at its optionProceeds:
(1) to repay Senior Debt and, if Indebtedness and other Obligations under any Credit Facility that is not expressly subordinated in right of payment to the Senior Debt repaid is revolving credit Notes or other senior Indebtedness, to correspondingly reduce commitments with respect thereto;
(2) to repay (or repurchase) any secured Indebtedness;
(3) to repay (or repurchase) any Indebtedness of such Restricted Subsidiary other than a Subsidiary Guarantor (except to the extent that such Indebtedness is pari passu with the Notes or the Subsidiary Guarantee given by such Subsidiary Guarantor);
(4) to repay (or repurchase) any Indebtedness with a final Stated Maturity that is prior to the final Stated Maturity of the Notes;
(5) to acquire a majority of the Voting Stock of another Person or all or substantially all of the assets ofof one or more other Persons or units, divisions or other operating portions 44 thereof (including by means of a majority of the Voting Stock ofmerger, another Permitted Businessconsolidation or other business combination permitted under this Indenture);
(36) to make one or more capital expenditures;
(47) to acquire other long-term noncurrent assets that are used or useful in a Permitted Businessthe business of the Company or any of its Restricted Subsidiaries; or
(5) for 8) to acquire Capital Stock consisting of a minority interest in any combination Person that at such time is a Restricted Subsidiary of clauses (1) through (4) abovethe Company. Pending the final application of any such Net Proceeds, the Company and any Restricted Subsidiary may temporarily reduce revolving credit borrowings or otherwise invest the Net Proceeds in any manner that is not prohibited by this Indenture. .
(c) Any Net Proceeds from Asset Sales that are not applied or invested as provided in the preceding paragraph will Section 4.10(b) hereof shall constitute "Excess Proceeds." When the aggregate amount of Excess Proceeds exceeds $5.0 million within five business days thereof100 million, the Company will shall, within 30 days, make an Asset Sale Offer to all Holders of Notes and Notes; and, at the Company's option, to all holders of other Indebtedness that is pari passu with with, or subordinate in right of payment to, the Notes containing provisions similar to those set forth Notes, in this Indenture with respect to offers to purchase or redeem with the proceeds of sales of assets each case in accordance with Section 3.09 hereof 3.08 hereof, to purchase the maximum principal amount of Notes and such other pari passu Indebtedness that may be purchased out of the Excess Proceeds. The offer price in any Asset Sale Offer will be equal to 100% of the principal amount of the Notes or any other Indebtedness being repurchased plus accrued and unpaid interest and Additional Interestinterest, if any, to the date of purchasepurchase (or 100% of the accreted value thereof, in the case of other Indebtedness that was initially offered and sold at a discount), and will be payable in cash. If any Excess Proceeds remain after consummation of an Asset Sale Offer, the Company may use those Excess Proceeds for any purpose not otherwise prohibited by this Indenture. If the aggregate principal amount of Notes and other pari passu Indebtedness (or accreted value, as applicable) tendered into such Asset Sale Offer offer exceeds the amount of Excess Proceeds, the Trustee shall select Excess Proceeds will be applied in the following way: (a) first, the Excess Proceeds will be applied to purchase the Notes and such other pari passu Indebtedness to be purchased tendered for purchase, on a pro rata basis based on (if the aggregate principal amount of such Notes and such pari passu Indebtedness exceeds the amount of Excess Proceeds), and (b) second, if and to the extent any Excess Proceeds remain after the purchase of all of the Notes and other pari passu Indebtedness tenderedtendered for purchase, the remaining Excess Proceeds will be applied to purchase any subordinated Indebtedness tendered for purchase, on a pro rata basis. Upon completion of each Asset Sale Offer, the amount of Excess Proceeds will shall be reset at zero. The Company shall comply with the requirements of Rule 14e-1 under the Exchange Act and any other federal or state securities laws and regulations thereunder to the extent those such laws and regulations are applicable in connection with each repurchase of Notes pursuant to an Asset Sale Offer. To the extent that the provisions of any securities laws or regulations conflict with the provisions of Section 3.09 3.08 hereof or 4.10 of this IndentureSection 4.10, the Company shall comply with the applicable securities laws and regulations and shall will not be deemed to have breached its obligations under those provisions of this Indenture by virtue of such conflict.
Appears in 2 contracts
Sources: Indenture (Medco Health Solutions Inc), Indenture (Medco Health Solutions Inc)
Asset Sales. The Company shall not, and shall not permit any of its Restricted Subsidiaries to, consummate an Asset Sale unless:
unless (1i) the Company (or the Restricted SubsidiarySubsidiary of the Company, as the case may be) receives consideration at the time of the such Asset Sale at least equal to the fair market value of the assets or Equity Interests issued or sold or otherwise disposed of;
, (2ii) the fair market value is determined by the Company's Board of Directors of the Company and evidenced by a resolution of the that Board of Directors set forth in an Officers' Certificate delivered to the Trustee; and
and (3iii) at least 75% of the consideration therefor received in the Asset Sale by the Company or such Restricted Subsidiary is in Subsidiary, as the form case may be, consists of cash. For purposes of this provisioncash or Cash Equivalents; provided, each however, that
(A) any liabilities of the following will be deemed to be cash:
Company (a) any liabilitiesor the Restricted Subsidiary of the Company, as the case may be), as shown on the Company's or such Restricted Subsidiary's its most recent balance sheet, of the Company or any Restricted Subsidiary sheet (other than contingent liabilities and liabilities that are by their terms subordinated to the Notes or any Subsidiary Guarantee) that are assumed by the transferee of any such the assets pursuant to a customary novation agreement that releases the Company or such Restricted Subsidiary transferor from further liability;
, (bB) any securities, notes or other obligations received from the transferee that are contemporaneously (subject to ordinary settlement periods) converted by the Company or the Restricted Subsidiary into cash (to the extent of that cash), and (C) Additional Assets received in an exchange-of-assets transaction shall all be deemed to be cash for purposes of this provision. Within 360 days after the receipt by the Company or any such of its Restricted Subsidiary from such transferee that are converted within 30 days by the Company or such Restricted Subsidiary into cash, to the extent of the cash received in that conversion; and
(c) any payment of Senior Debt secured by the assets sold in the Asset Sale. Within 365 days after the receipt Subsidiaries of any Net Proceeds from an Asset Sale, the Company may apply those such Net Proceeds Proceeds, at its option:
, (1i) to repay Senior Debt permanently Indebtedness that is pari passu with the Notes and, if the Senior Debt Indebtedness repaid is revolving credit Indebtedness, to correspondingly reduce the lenders' commitments with respect thereto;
; (2ii) to acquire all or substantially all of the assets of, or a majority of the Voting Stock of, of another Permitted Business;
(3) to make capital expenditures;
(4) to acquire other long-term assets company that are used or useful is engaged in a Permitted Business; or
(5iii) for any combination to make a capital expenditure in a Permitted Business; or (iv) to acquire Additional Assets; provided that the Company will have complied with this clause (iv) if, within 360 days of clauses (1) through (4) abovethe Asset Sale, the Company has entered into an agreement covering the acquisition which is thereafter completed within 180 days after the date of the agreement. Pending the final application of any such Net Proceeds, the Company may temporarily reduce revolving credit borrowings or otherwise invest the such Net Proceeds in any manner that is not prohibited by this Indenture. Any Net Proceeds from Asset Sales that are not applied or invested as provided in the preceding first sentence of this paragraph will shall be deemed to constitute "Excess Proceeds." When Within five days of each date on which the aggregate amount of Excess Proceeds exceeds $5.0 million within five business days thereof10,000,000, the Company will shall make an Asset Sale Offer offer to all Holders of Notes and Notes, as well as all holders of other Indebtedness that is pari passu with the Notes containing and that has the benefit of provisions requiring the Company to make a similar to those set forth in this Indenture with respect to offers to purchase or redeem with the proceeds of sales of assets in accordance with Section 3.09 hereof offer (an "Asset Sale Offer"), to purchase the maximum principal amount of Notes and such other pari passu Indebtedness that may be purchased out of the Excess Proceeds. The offer price in any Asset Sale Offer will be equal to 100% of the principal amount of Notes and other Indebtedness to be purchased, plus accrued and unpaid interest and Additional InterestLiquidated Damages, if any, to the date of purchase, and will be payable in cash. If The Company may use any Excess Proceeds remain remaining after consummation of an Asset Sale Offer, the Company may use those Excess Proceeds Offer for any purpose not otherwise prohibited by this Indenture. If the aggregate principal amount of Notes and other pari passu Indebtedness tendered into such Asset Sale Offer exceeds the amount of Excess Proceeds, the Trustee shall select the Notes and such other pari passu Indebtedness to be purchased on a pro rata basis based on the principal amount of Notes and such other pari passu Indebtedness so tendered. Upon completion of each Asset Sale Offer, the amount of Excess Proceeds will shall be reset at zero. The Company shall will comply with the requirements of Rule 14e-1 under the Exchange Act and any all other applicable securities laws and regulations thereunder to the extent those laws and regulations are applicable in connection with each repurchase purchase of Notes pursuant to an Asset Sale Offer. To the extent that If the provisions of any securities laws or regulations conflict with the provisions of this Section 3.09 or 4.10 of this Indenture4.10, the Company shall will comply with the applicable securities laws and regulations and shall by so doing will not be deemed to have breached its obligations under those provisions of this Indenture by virtue of such conflictSection 4.10.
Appears in 2 contracts
Sources: Indenture (Ames Department Stores Inc), Indenture (Ames Department Stores Inc)
Asset Sales. The Company shall not, and 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 (evidenced by an Officers' Certificate delivered to the Trustee which will include a resolution of the Board of Directors with respect to such fair market value in the event such Asset Sale involves aggregate consideration in excess of $5.0 million) of the assets or Equity Interests issued or sold or otherwise disposed of;
of and (2) 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; and
(3ii) at least 7580% of the consideration therefor received in the Asset Sale by the Company or such Restricted Subsidiary is in Subsidiary, as the form case may be, consists of cash. For purposes of this provision, each of Cash Equivalents and/or Marketable Securities; provided, however, that (A) the following will be deemed to be cash:
(a) any liabilities, as shown on the Company's or such Restricted Subsidiary's most recent balance sheet, of the Company or any Restricted Subsidiary (other than contingent liabilities and liabilities that are by their terms subordinated to the Notes or any Subsidiary Guarantee) that are assumed by the transferee amount of any such assets pursuant to a customary novation agreement that releases Senior Debt of the Company or such Restricted Subsidiary from further liability;
that is assumed by the transferee in any such transaction and (bB) any securities, notes or other obligations consideration received by the Company or any such Restricted Subsidiary from such transferee that are converted within 30 days by the Company or such Restricted Subsidiary into cashSubsidiary, to as the extent case may be, that consists of (1) all or substantially all of the assets of one or more Similar Businesses, (2) other long-term assets that are used or useful in one or more Similar Businesses and (3) Permitted Securities shall be deemed to be cash received in that conversion; and
(c) any payment for purposes of Senior Debt secured by the assets sold in the Asset Salethis provision. Within 365 days after the receipt of any Net Proceeds from an Asset Sale, the Company may apply those such Net Proceeds Proceeds, at its option:
, (1i) to repay Senior Debt andIndebtedness under a Credit Facility, if the Senior Debt repaid is revolving credit Indebtedness, to correspondingly reduce commitments with respect thereto;
or (2ii) to acquire the acquisition of Permitted Securities, all or substantially all of the assets ofof one or more Similar Businesses, or the making of a majority capital expenditure or the acquisition of the Voting Stock of, another Permitted Business;
(3) to make capital expenditures;
(4) to acquire other long-term assets that are used or useful in a Permitted Similar Business; or
(5) for any combination of clauses (1) through (4) above. Pending the final application of any such Net Proceeds, the Company may temporarily reduce revolving credit borrowings Indebtedness under a Credit Facility or otherwise invest the such Net Proceeds in any manner that is not prohibited by this Indenture. Any Net Proceeds from Asset Sales that are not applied or invested as provided in the preceding first sentence of this paragraph will shall be deemed to constitute "Excess Proceeds." ". When the aggregate amount of Excess Proceeds exceeds $5.0 million within five business days thereof10.0 million, the Company shall make an offer to all holders of 1997 Notes (an "Asset Sale Offer") to purchase the maximum principal amount of 1997 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 to the date of purchase, in accordance with the procedures set forth in the 1997 Indenture. To the extent that the aggregate amount of 1997 Notes tendered pursuant to an Asset Sale Offer is less than the remaining Excess Proceeds ("Remaining Excess Proceeds") and the sum of (A) such amount of Remaining Excess Proceeds and (B) the Remaining Excess Proceeds from any subsequent Asset Sale Offers exceeds $3.0 million, the Company will be required to make an Asset Sale Offer offer to all Holders of Notes and all holders of any other Indebtedness that is ranks pari passu with the Notes containing provisions similar that, by its terms, requires the Company to those set forth in this Indenture offer to repurchase such Indebtedness with respect to offers to purchase or redeem with the proceeds of sales of assets in accordance with Section 3.09 hereof such Remaining Excess Proceeds (a "Secondary Asset Sale Offer") to purchase the maximum principal amount of Notes and such other pari passu Indebtedness that may be purchased out of the such Remaining Excess Proceeds. The , at an offer price in any Asset Sale Offer will be cash in an amount equal to 100% of the principal amount thereof plus accrued and unpaid interest and Additional Interestthereon, if any, to the date of purchase, and will be payable in cashaccordance with the procedures set forth in this Indenture. If any Excess Proceeds remain after consummation To the extent that the aggregate amount of an Notes or pari passu Indebtedness tendered pursuant to a Secondary Asset Sale OfferOffer is less than the Remaining Excess Proceeds, the Company may use those any Remaining Excess Proceeds for any purpose not otherwise prohibited by this Indenturegeneral corporate purposes. If the aggregate principal amount of Notes and other or pari passu Indebtedness tendered into such Asset Sale Offer surrendered by Holders thereof exceeds the amount of Remaining Excess ProceedsProceeds in a Secondary Asset Sale Offer, the Company shall repurchase such Indebtedness on a pro rata basis and the Trustee shall select the Notes and such other pari passu Indebtedness to be purchased on a pro rata basis based on the principal amount of Notes and such other pari passu Indebtedness tenderedbasis. Upon completion of each Asset Sale Offersuch offer to purchase, the amount of Excess Proceeds will shall be reset at zero. The Company shall comply with the requirements of Rule 14e-1 under the Exchange Act and any other securities laws and regulations thereunder to the extent 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 4.10 of this Indenture, the Company shall comply with the applicable securities laws and regulations and shall not be deemed to have breached its obligations under those provisions of this Indenture by virtue of such conflict.
Appears in 2 contracts
Sources: Indenture (L-3 Communications SPD Technologies Inc), Indenture (Southern California Microwave Inc)
Asset Sales. The Company shall will not, and shall will not permit any of its Restricted Subsidiaries to, consummate cause or make an Asset Sale 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 (as determined in good faith by the Board of Directors of the Company) of the assets sold or otherwise disposed of; and
(2) at least 75% of the consideration therefor received by the Company or such Restricted Subsidiary, as the case may be) receives consideration at the time of the Asset Sale at least equal to the fair market value of the 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 set forth in an Officers' Certificate delivered to the Trustee; and
(3) at least 75% of the consideration received in the Asset Sale by the Company or such Restricted Subsidiary , is in the form of cash. For purposes of this provision, each of Cash Equivalents; provided that the following will be deemed to be cashamount of:
(aA) any liabilities, liabilities (as shown on the Company's ’s or such Restricted Subsidiary's ’s most recent balance sheet, ) of the Company or any Restricted Subsidiary of the Company (other than contingent liabilities and liabilities that are by their terms subordinated to the Notes or any Subsidiary GuaranteeNotes) that are assumed by the transferee of any such assets pursuant to a customary novation agreement that releases and from which the Company or such any Restricted Subsidiary from further liabilityare released in writing;
(bB) any securities, notes or other obligations or other securities or assets received by the Company or any such Restricted Subsidiary from such transferee that are converted within 30 days by the Company or such Restricted Subsidiary of the Company from such transferee that are converted by the Company or such Restricted Subsidiary of the Company into cash, cash within 180 days of the receipt thereof (to the extent of the cash received in that conversionreceived); and
(cC) any payment of Senior Debt secured Designated Non-cash Consideration received by the assets sold Company or any of its Restricted Subsidiaries in such Asset Sale having an aggregate Fair Market Value (as determined in good faith by the Asset SaleBoard of Directors of the Company), taken together with all other Designated Non-cash Consideration received pursuant to this clause (C) that is at that time outstanding, not to exceed 5.0% of Total Assets of the Company 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 provision. Within 365 days after the receipt by the Company or any Restricted Subsidiary of the Company of the Net Proceeds of any Net Proceeds from an Asset SaleSale (or Event of Loss Proceeds), the Company or such Restricted Subsidiary of the Company may apply those the Net Proceeds from such Asset Sale (together with any Event of Loss Proceeds), at its option:
(1) to repay Senior Debt andpermanently reduce Obligations under Secured Indebtedness or Pari Passu Indebtedness (provided that if the Company or any Guarantor shall so reduce Obligations under Pari Passu Indebtedness (other than Pari Passu Indebtedness that is Secured Indebtedness), the Company will equally and ratably reduce Obligations under the Notes if the Notes are then prepayable or, if the Senior Debt repaid Notes may not then be prepaid, by making an offer (in accordance with the procedures set forth below for an Asset Sale Offer) to all holders to purchase at a purchase price equal to 100% of the principal amount thereof, plus accrued and unpaid interest and Liquidated Damages, if any, the pro rata principal amount of Notes that would otherwise be prepaid) or Indebtedness of a Restricted Subsidiary that is revolving credit Indebtednessnot a Guarantor, in each case other than Indebtedness owed to correspondingly reduce commitments with respect thereto;the Company or an Affiliate of the Company,
(2) to acquire all make an investment in any one or substantially all more businesses (provided that if such investment is in the form of the assets ofacquisition of Capital Stock of a Person, such acquisition results in such Person becoming a Restricted Subsidiary of the Company), or capital expenditures or assets, in each case used or useful in a majority of the Voting Stock ofSimilar Business, another Permitted Business;and/or
(3) to make capital expenditures;
an investment in any one or more businesses (4) to acquire other long-term 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 the Company), properties or assets that replace the properties and assets that are used the subject of such Asset Sale or useful Event of Loss; provided that in a Permitted Business; or
(5) for any combination the case of clauses (12) through and (43) above, a binding commitment shall be treated as a permitted application of the Net Proceeds from the date of such commitment and, in the event such binding commitment is later canceled or terminated for any reason before such Net Proceeds are so applied, the Company or such Restricted Subsidiary enters into another binding commitment within nine months of such cancellation or termination of the prior binding commitment; provided, further, that any such binding commitment to invest shall be subject to only customary conditions (other than financing). Pending the final application of any such Net Proceeds (or Event of Loss Proceeds), the Company or such Restricted Subsidiary of the Company may temporarily reduce Indebtedness under a revolving credit borrowings facility, if any, or otherwise invest the such Net Proceeds (or Event of Loss Proceeds) in any manner that is not prohibited by this IndentureCash Equivalents or Investment Grade Securities. Any Net Proceeds from any Asset Sales Sale (or Event of Loss Proceeds) that are not applied or invested as provided and within the time period set forth in the preceding second paragraph of this Section 4.10 (it being understood that any portion of such Net Proceeds (or Event of Loss Proceeds) used to make an offer to purchase Notes, as described in clause (1) of the second paragraph of this Section 4.10, shall be deemed to have been invested whether or not such offer is accepted) will be deemed to constitute "“Excess Proceeds." ” When the aggregate amount of Excess Proceeds exceeds $5.0 million within five business days thereof15.0 million, the Company will shall make an Asset Sale Offer to all Holders (and, at the option of Notes and all the Company, to holders of other Indebtedness that is pari passu with the Notes containing provisions similar to those set forth in this Indenture with respect to offers to purchase or redeem with the proceeds of sales of assets in accordance with Section 3.09 hereof any Pari Passu Indebtedness) to purchase the maximum principal amount of Notes (and such other pari passu Indebtedness Pari Passu Indebtedness) that is an integral multiple of $2,000 that may be purchased out of the Excess Proceeds. The Proceeds at an offer price in any Asset Sale Offer will be 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, 100% of the accreted value thereof), plus accrued and unpaid interest and Additional InterestLiquidated Damages, 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, and in accordance with the procedures set forth in this Indenture. The Company will be payable in cash. If any Excess Proceeds remain after consummation of commence an Asset Sale OfferOffer with respect to Excess Proceeds within ten Business Days after the date that Excess Proceeds exceed $15.0 million as provided in Section 3.09 hereof. To the extent that the aggregate amount of Notes (and such Pari Passu Indebtedness) tendered pursuant to an Asset Sale Offer is less than the Excess Proceeds, the Company may use those any remaining Excess Proceeds for any purpose that is not otherwise prohibited by this Indenture. If the aggregate principal amount of Notes and other pari passu Indebtedness tendered into such Asset Sale Offer surrendered by holders thereof exceeds the amount of Excess Proceeds, the Trustee shall select the Notes (and such other pari passu Indebtedness Pari Passu Indebtedness) to be purchased on a pro rata basis based on the principal amount of Notes and such other pari passu Indebtedness tenderedas provided in Section 3.09 hereof. Upon completion of each any such Asset Sale Offer, the amount of Excess Proceeds will shall be reset at zero. The Company shall will comply with the requirements of Rule 14e-1 under the Exchange Act and any other securities laws and regulations thereunder to the extent those such laws and or regulations are applicable in connection with each 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 Section 3.09 or 4.10 of this Indenture, the Company shall will comply with the applicable securities laws and regulations and shall not be deemed to have breached its obligations under those provisions of described in this Indenture by virtue of such conflictthereof.
Appears in 2 contracts
Sources: Indenture (Hughes Communications, Inc.), Indenture (HNS Finance Corp.)
Asset Sales. The Company shall will not, and shall will not permit any of its Restricted Subsidiaries to, consummate an Asset Sale unless:: 50
(1) the Company (or the Restricted Subsidiary, as the case may be) receives consideration at the time of the such Asset Sale at least equal to the fair market value of the assets or Equity Interests issued or sold or otherwise disposed of;
(2) the fair market value is determined by Company delivers to the Company's Board of Directors and evidenced by Trustee:
(A) with respect to any Asset Sale, a resolution of the Board of Directors set forth in an Officers' Certificate delivered certifying that the consideration received at the time of the Asset Sale was at least equal to the Trusteefair market value of the assets or Equity Interests issued or sold or otherwise disposed of; and
(B) with respect to any Asset Sale or series of Asset Sales involving aggregate consideration in excess of $20.0 million, an opinion as to the fairness to the Holders of such Asset Sale from a financial point of view issued by an accounting, appraisal or investment banking firm of national standing; and
(3) at least 7580% of the consideration therefor received in the Asset Sale by the Company or such Restricted Subsidiary is in the form of cashcash or cash equivalents. For purposes of this provision, each of the following will shall be deemed to be cash:
(aA) any liabilities, liabilities (as shown on the Company's or such Restricted Subsidiary's most recent balance sheet), of the Company or any Restricted Subsidiary (other than contingent liabilities and liabilities that are by their terms subordinated to the Notes or any Subsidiary Note Guarantee) that are assumed by the transferee of any such assets pursuant to a customary novation agreement that releases the Company or such Restricted Subsidiary from further liability;; and
(bB) any securities, notes or other obligations received by the Company or any such Restricted Subsidiary from such transferee that are contemporaneously (subject to ordinary settlement periods) converted within 30 days by the Company or such Restricted Subsidiary into cashcash within 180 days, to the extent of the cash received in that conversion; and
(c) any payment of Senior Debt secured by the assets sold in the Asset Sale. Within 365 360 days after the receipt of any Net Proceeds from an Asset Sale, the Company may apply those such Net Proceeds at its option:
(1) to repay Senior Debt Indebtedness under the Credit Facilities and, if the Senior Debt Indebtedness repaid is revolving credit Indebtedness, to correspondingly reduce commitments with respect thereto;
(2) to acquire all or substantially all of the assets of, or a majority of the Voting Stock of, another Permitted Business;
(3) to make a capital expenditures;expenditure; or
(4) to acquire other long-term assets and parking facility agreements, in each case, that are used or useful in a Permitted Business; or
(5) for any combination of clauses (1) through (4) above. Pending the final application of any such Net Proceeds, the Company may temporarily reduce revolving credit borrowings or otherwise invest the such Net Proceeds in any manner that is not prohibited by this IndentureIndenture or the Credit Agreement. 51 Any Net Proceeds from Asset Sales that are not applied or invested as provided in the preceding paragraph will constitute "Excess ProceedsEXCESS PROCEEDS." When the aggregate amount of Excess Proceeds exceeds $5.0 million within five business days thereof10.0 million, the Company will make an Asset Sale Offer to all Holders of Notes and all holders of other Indebtedness that is pari passu PARI PASSU with the Notes containing provisions similar to those set forth in this Indenture with respect to offers to purchase or redeem with the proceeds of sales of assets in accordance with Section 3.09 hereof to purchase the maximum principal amount of Notes and such other pari passu PARI PASSU Indebtedness that may be purchased out of the Excess Proceeds. The offer price in any Asset Sale Offer will be equal to 100% of principal amount plus accrued and unpaid interest and Additional InterestLiquidated Damages, if any, to the date of purchase, and will be payable in cash. If any Excess Proceeds remain after consummation consumption of an Asset Sale Offer, the Company may use those such Excess Proceeds for any purpose not otherwise prohibited by this IndentureIndenture or the Credit Agreement. If the aggregate principal amount of Notes and such other pari passu PARI PASSU Indebtedness tendered into such Asset Sale Offer exceeds the amount of Excess Proceeds, the Trustee shall select the Notes and the Company shall select such other pari passu PARI PASSU Indebtedness to be purchased on a pro rata basis based on the principal amount of Notes and such other pari passu PARI PASSU Indebtedness tendered. tendered Upon completion of each Asset Sale Offer, the amount of Excess Proceeds will shall be reset at zero. The Company shall will comply with the requirements of Rule 14e-1 under the Exchange Act and any other securities laws and regulations thereunder to the extent those such laws and regulations are applicable in connection with each repurchase of Notes pursuant to an Asset Sale Offer. To the extent that the provisions of any securities laws or regulations conflict with the provisions of Section Sections 3.09 or 4.10 of this Indenture, the Company shall will comply with the applicable securities laws and regulations and shall will not be deemed to have breached its obligations under those provisions of this Indenture by virtue of such conflict.
Appears in 2 contracts
Sources: Indenture (Ap Holdings Inc), Indenture (Apcoa Standard Parking Inc /De/)
Asset Sales. The Company Holdings shall not, and shall not permit any of its Restricted Subsidiaries to, consummate an Asset Sale unless:
(1i) the Company (Holdings 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 Fair Market Value 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 set forth in an Officers' Certificate delivered to the Trustee; and
(3ii) at least 75% of the consideration therefor received in the Asset Sale by the Company Holdings or such Restricted Subsidiary is in the form of cash, Cash Equivalents or Replacement Assets or a combination thereof. For purposes of this provision, each of the following will shall be deemed to be cash:
(aA) any liabilities, as shown on the Company's Holdings’ or such Restricted Subsidiary's ’s most recent balance sheet, of the Company Holdings or any Restricted Subsidiary (other than contingent liabilities and liabilities liabilities, Indebtedness that are is by their its terms subordinated to the Notes Obligations and liabilities to the extent owed to Holdings or any Subsidiary GuaranteeAffiliate of Holdings) that are assumed by the transferee of any such assets or Equity Interests pursuant to a customary written novation agreement that releases the Company Holdings or such Restricted Subsidiary from further liability;liability therefor, and
(bB) any securities, notes or other obligations received by the Company Holdings or any such Restricted Subsidiary from such transferee that are (within 90 days of receipt and subject to ordinary settlement periods) converted within 30 days by the Company Holdings or such Restricted Subsidiary into cash, cash (to the extent of the cash received in that conversion); and
(ciii) any payment if such Asset Sale involves the transfer of Senior Debt secured Collateral,
(A) such Asset Sale complies with the applicable provisions of the Security Documents, and
(B) to the extent required by the assets sold Security Documents, all consideration (including cash and Cash Equivalents) received in such Asset Sale shall be expressly made subject to the Lien under the Security Documents; provided, that the Borrower or any Guarantor may designate consideration received in exchange for the sale or other disposition of Collateral having an aggregate Fair Market Value of $75 million since the Effective Date as “Excluded Assets” (as defined in the Asset SaleSecurity Agreement) not subject to the Lien under the Security Documents. Within 365 days after Notwithstanding the receipt of any Net Proceeds from an Asset Saleforegoing, the Company may apply those Net Proceeds at its option:
(175% limitation referred to in Section 9.04(ii) to repay Senior Debt and, if the Senior Debt repaid is revolving credit Indebtedness, to correspondingly reduce commitments with respect thereto;
(2) to acquire all or substantially all of the assets of, or a majority of the Voting Stock of, another Permitted Business;
(3) to make capital expenditures;
(4) to acquire other long-term assets that are used or useful in a Permitted Business; or
(5) for any combination of clauses (1) through (4) above. Pending the final application of any Net Proceeds, the Company may temporarily reduce revolving credit borrowings or otherwise invest the Net Proceeds in any manner that is not prohibited by this Indenture. Any Net Proceeds from Asset Sales that are not applied or invested as provided in the preceding paragraph will constitute "Excess Proceeds." When the aggregate amount of Excess Proceeds exceeds $5.0 million within five business days thereof, the Company will make an Asset Sale Offer to all Holders of Notes and all holders of other Indebtedness that is pari passu with the Notes containing provisions similar to those set forth in this Indenture shall be deemed satisfied with respect to offers to purchase any Asset Sale in which the cash, Cash Equivalents or redeem with Replacement Assets portion of the proceeds of sales of assets consideration received therefrom, determined in accordance with Section 3.09 hereof to purchase the maximum principal amount of Notes and such other pari passu Indebtedness that may be purchased out of the Excess Proceeds. The offer price in any Asset Sale Offer will be foregoing provision on an after tax basis, is equal to 100% of principal amount plus accrued and unpaid interest and Additional Interest, if any, to or greater than what the date of purchase, and will be payable in cash. If any Excess Proceeds remain after consummation of an Asset Sale Offer, the Company may use those Excess Proceeds for any purpose not otherwise prohibited by this Indenture. If the aggregate principal amount of Notes and other pari passu Indebtedness tendered into after-tax proceeds would have been had such Asset Sale Offer exceeds the amount of Excess Proceeds, the Trustee shall select the Notes and such other pari passu Indebtedness to be purchased on a pro rata basis based on the principal amount of Notes and such other pari passu Indebtedness tendered. Upon completion of each Asset Sale Offer, the amount of Excess Proceeds will be reset at zero. The Company shall comply complied with the requirements of Rule 14e-1 under the Exchange Act and any other securities laws and regulations thereunder to the extent those laws and regulations are applicable in connection with each repurchase of Notes pursuant to an Asset Sale Offer. To the extent that the provisions of any securities laws or regulations conflict with the provisions of Section 3.09 or 4.10 of this Indenture, the Company shall comply with the applicable securities laws and regulations and shall not be deemed to have breached its obligations under those provisions of this Indenture by virtue of such conflictaforementioned 75% limitation.
Appears in 2 contracts
Sources: Credit Agreement and Subsidiaries Guaranty (Leap Wireless International Inc), Credit Agreement (Leap Wireless International Inc)
Asset Sales. The Company shall not, and 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 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 set forth in an Officers' Certificate delivered to the Trustee; and
) of the assets or Equity Interests issued or sold or otherwise disposed of and (3ii) at least 75% of the consideration therefor received in the Asset Sale by the Company or such Restricted Subsidiary is in the form of cash. For purposes cash or Cash Equivalents; provided that the amount of this provision, each of the following will be deemed to be cash:
(a) any liabilities, liabilities (as shown on the Company's or such Restricted Subsidiary's most recent balance sheet, ) of the Company or any such Restricted Subsidiary (other than contingent liabilities and liabilities that are by their terms subordinated to the Notes or any Subsidiary GuaranteeNote Guarantee thereof) that are assumed by the transferee of any such assets pursuant to a customary novation agreement that releases the Company or 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 within 30 days by the Company or such Restricted Subsidiary into cash, cash (to the extent of the cash received in that conversion; and
(creceived) any payment shall be deemed to be cash for purposes of Senior Debt secured by the assets sold in the Asset Salethis provision. Within 365 360 days after of the receipt of any Net Proceeds from an Asset Sale, the Company or any of its Restricted Subsidiaries may apply those such Net Proceeds Proceeds, at its option:
, (1a) to repay Senior Debt of the Company or any of its Restricted Subsidiaries or to provide cash collateral with respect to any letters of credit outstanding under the Credit Facility and, if the Senior Debt repaid is revolving credit Indebtednessin each case, to correspondingly reduce commitments with respect thereto;
thereto in the case of revolving borrowings or (2b) to acquire all the acquisition of a controlling interest in another business, the making of a capital expenditure or substantially all the acquisition of the assets of, or a majority of the Voting Stock of, another Permitted Business;
(3) to make capital expenditures;
(4) to acquire other long-term assets that are used or useful in a Permitted Business; or
(5) for any combination of clauses (1) through (4) aboveassets. Pending the final application of any such Net Proceeds, the Company may temporarily reduce revolving credit borrowings Senior Debt or otherwise invest the such Net Proceeds in any manner that is not prohibited by this Indenture. Any Net Proceeds from Asset Sales that are not applied or invested as provided in the preceding first sentence of this paragraph will shall be deemed to constitute "Excess Proceeds." When the aggregate amount of Excess Proceeds exceeds $5.0 million within five business days thereofmillion, the Company will shall be required to make an Asset Sale Offer offer to all Holders of Notes and all holders of other Indebtedness that is pari passu with the Notes containing provisions similar to those set forth in this Indenture with respect to offers to purchase or redeem with the proceeds of sales of assets in accordance with Section 3.09 hereof (an "Asset Sale Offer") to purchase the maximum principal amount of Notes and such other pari passu Indebtedness that may be purchased out of the Excess Proceeds. The Proceeds at an offer price in any Asset Sale Offer will be cash in an amount equal to 100% of the principal amount thereof; plus accrued and unpaid interest and Additional InterestLiquidated Damages, if any, thereon to the date of purchase, and will be payable in cashaccordance with the procedures set forth in this Indenture. If any Excess Proceeds remain after consummation To the extent that the aggregate principal amount of Notes tendered pursuant to an Asset Sale OfferOffer is less than the Excess Proceeds, the Company may use those any remaining Excess Proceeds for any purpose not otherwise prohibited by this Indenturegeneral corporate purposes. If the aggregate principal amount of Notes and other pari passu Indebtedness tendered into such Asset Sale Offer surrendered by Holders thereof exceeds the amount of Excess Proceeds, the Trustee shall select the Notes and such other pari passu Indebtedness to be purchased on a pro rata basis based on the principal amount of Notes and such other pari passu Indebtedness tenderedbasis. Upon completion of each an Asset Sale Offer, the amount of Excess Proceeds will shall be reset at zero. The Company shall comply with the requirements of Rule 14e-1 under the Exchange Act and any other securities laws and regulations thereunder to the extent 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 4.10 of this Indenture, the Company shall comply with the applicable securities laws and regulations and shall not be deemed to have breached its obligations under those provisions of this Indenture by virtue of such conflict.
Appears in 2 contracts
Sources: Indenture (Holmes Products Corp), Indenture (Holmes Products Corp)
Asset Sales. The Company shall notNo Obligor will, and shall not permit any of its Restricted Subsidiaries todirectly or indirectly, consummate or enter into a binding commitment to consummate an Asset Sale unless:
(1) the Company (or the Restricted Subsidiarysuch Obligor, as the case may be) , receives consideration at the time of the such Asset Sale at least equal to the fair market value of the assets or Equity Interests issued or sold or otherwise disposed of;of which other disposition is made (as determined reasonably and in good faith by the Board of such Obligor), and
(2) 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; and
(3) at least 75% of the consideration received in the by such Obligor from such Asset Sale by will be cash or Cash Equivalents and will be received at the Company or time of the consummation of any such Restricted Subsidiary is in the form of cashAsset Sale. For purposes of this provision, each of the following will shall be deemed to be cash:
(aA) any liabilities, liabilities as shown on the Company's or such Restricted Subsidiary's Obligors’ most recent balance sheetsheet (or in the notes thereto) (other than (i) Indebtedness subordinate in right of payment to the Notes, (ii) contingent liabilities, (iii) liabilities or Indebtedness to Affiliates of the Company or any Restricted Subsidiary and (other than contingent liabilities and liabilities that are by their terms subordinated to the Notes or any Subsidiary Guaranteeiv) Non-Recourse Indebtedness) that are assumed by the transferee of any such assets pursuant to a customary novation agreement that releases the Company or such Restricted Subsidiary from further liability;assets, and
(bB) to the extent of the cash received, any securities, notes or other obligations received by the Company or any such Restricted Subsidiary from such transferee that are converted by such Obligor into cash within 30 90 days by of receipt. Notwithstanding the Company or foregoing, an Obligor may consummate an Asset Sale without complying with the foregoing provisions if:
(1) such Restricted Subsidiary into cash, Obligor receives consideration at the time of such Asset Sale at least equal to the extent fair market value of the cash received assets or other property sold, issued or otherwise disposed of (as evidenced by a resolution of the Board of such Obligor) as set forth in that conversion; an Officers’ Certificate delivered to the Trustee,
(2) the transaction constitutes a “like-kind exchange” of the type contemplated by Section 1031 of the Internal Revenue Code, and
(c3) the consideration for such Asset Sale constitutes Productive Assets; provided that any payment non-cash consideration not constituting Productive Assets received by such Obligor in connection with such Asset Sale that is converted into or sold or otherwise disposed of Senior Debt secured by the assets sold in the Asset Sale. Within 365 for cash or Cash Equivalents at any time within 360 days after such Asset Sale and any Productive Assets constituting cash or Cash Equivalents received by such Obligor in connection with such Asset Sale shall constitute Net Cash Proceeds subject to the receipt provisions set forth above. Upon the consummation of any Net Proceeds from an Asset Sale, the Company may or the affected Obligor will be required to apply those all Net Cash Proceeds at its optionthat are received from such Asset Sale within 360 days of the receipt thereof either:
(1) to repay Senior Debt andreinvest (or enter into a binding commitment to invest, if such investment is effected within 360 days after the Senior Debt repaid is revolving credit Indebtednessdate of such commitment) in Productive Assets or in Asset Acquisitions not otherwise prohibited by this Indenture, to correspondingly reduce commitments with respect thereto;or
(2) to acquire all permanently prepay or substantially all repay Indebtedness of any Obligor other than Indebtedness that is subordinate in right of payment to the assets of, or a majority of the Voting Stock of, another Permitted Business;
(3) to make capital expenditures;
(4) to acquire other long-term assets that are used or useful in a Permitted Business; or
(5) for any combination of clauses (1) through (4) aboveNotes. Pending the final application of any such Net Cash Proceeds, the Company Obligors may temporarily reduce revolving credit borrowings Indebtedness or otherwise invest the such Net Cash Proceeds in any manner that is not prohibited by this Indenture. Any On the 361st day after an Asset Sale or such earlier date, if any, as the Board of the Company or the affected Obligor determines not to apply the Net Cash Proceeds from relating to such Asset Sales that are not applied Sale as set forth in clauses (1) or invested as provided in (2) of the preceding paragraph will constitute "Excess Proceeds." When the (each a “Net Proceeds Offer Trigger Date”), such aggregate amount of Excess Net Cash Proceeds exceeds $5.0 million within five business days thereofwhich have not been applied on or before such Net Proceeds Offer Trigger Date as permitted in clauses (1) or (2) of the preceding paragraph (each a “Net Proceeds Offer Amount”), will be applied by the Company will to make an Asset Sale Offer offer to all Holders of Notes and all holders of other Indebtedness that is pari passu purchase (the “Net Proceeds Offer”), in accordance with the Notes containing provisions similar to those procedures set forth in this Indenture with respect to offers to purchase or redeem with the proceeds of sales of assets in accordance with Section 3.09 hereof to hereof, on a date (the “Net Proceeds Offer Payment Date”) not less than 30 nor more than 60 days following the applicable Net Proceeds Offer Trigger Date, on a pro rata basis (A) Notes at a purchase the maximum principal amount of Notes and such other pari passu Indebtedness that may be purchased out of the Excess Proceeds. The offer price in any Asset Sale Offer will be cash equal to 100% of the aggregate principal amount of Notes, in each case, plus accrued and unpaid interest and Additional InterestLiquidated Damages, if any, thereon on the Net Proceeds Offer Payment Date and (B) the outstanding 9.25% Notes, 8.75% Notes or other Indebtedness Incurred by the Company which is pari passu with the Notes, in each case to the date of purchase, and will be payable in cash. If extent required by the terms thereof; provided that if at any Excess Proceeds remain time within 360 days after consummation of an Asset Sale Offer, any non-cash consideration received by the Company may use those Excess or the affected Obligor in connection with such Asset Sale is converted into or sold or otherwise disposed of for cash, then such conversion or disposition will be deemed to constitute an Asset Sale hereunder and the Net Cash Proceeds for any purpose not otherwise prohibited by thereof will be applied in accordance with this IndentureSection. If To the extent that the aggregate principal amount of Notes, 9.25% Notes, 8.75% Notes and or other pari passu Indebtedness tendered into pursuant to the Net Proceeds Offer is less than the Net Proceeds Offer Amount, the Obligors may use any remaining proceeds of such Asset Sale Offer exceeds Sales for general corporate purposes (but subject to the amount other terms of Excess Proceeds, the Trustee shall select the Notes and such other pari passu Indebtedness to be purchased on a pro rata basis based on the principal amount of Notes and such other pari passu Indebtedness tenderedthis Indenture). Upon completion of each Asset Sale a Net Proceeds Offer, the Net Proceeds Offer Amount relating to such Net Proceeds Offer will be deemed to be zero for purposes of any subsequent Asset Sale. In the event that a Restricted Subsidiary consummates an Asset Sale, only that portion of the Net Cash Proceeds therefrom (including any Net Cash Proceeds received upon the sale or other disposition of any noncash proceeds received in connection with an Asset Sale) that are distributed to or received by any Obligor will be required to be applied by the Obligors in accordance with the provisions of this paragraph. Notwithstanding the foregoing, if a Net Proceeds Offer Amount is less than $10 million the application of the Net Cash Proceeds constituting such Net Proceeds Offer Amount to a Net Proceeds Offer may be deferred until such time as such Net Proceeds Offer Amount plus the aggregate amount of Excess all Net Proceeds Offer Amounts arising subsequent to September 25, 2003 from all Asset Sales by the Obligors in respect of which a Net Proceeds Offer has not been made aggregate at least $10 million at which time the affected Obligor will apply all Net Cash Proceeds constituting all Net Proceeds Offer Amounts that have been so deferred to make a Net Proceeds Offer (each date on which the aggregate of all such deferred Net Proceeds Offer Amounts is equal to $10 million or more will be reset at zerodeemed to be a Net Proceeds Offer Trigger Date). In connection with any Asset Sale with respect to assets having a book value in excess of $10 million or as to which it is expected that the aggregate consideration therefor to be received by the affected Obligor will exceed $10 million in value, such Asset Sale will be approved, prior to the consummation thereof, by the Board of the applicable Obligor. The Company shall will comply with the requirements of Rule 14e-1 under the Exchange Act and any other securities laws and regulations thereunder to the extent those such laws and regulations are applicable in connection with each repurchase of Notes pursuant to an Asset Sale a Net Proceeds Offer. To the extent that the provisions of any securities laws or regulations conflict with the provisions of Section 3.09 hereof or 4.10 of this IndentureSection 4.10, the Company shall will comply with the applicable securities laws and regulations and shall will not be deemed to have breached its obligations under those provisions of Section 3.09 hereof or this Indenture Section 4.10 by virtue of such conflictcompliance.
Appears in 2 contracts
Sources: Indenture (Casino One Corp), Indenture (Pinnacle Entertainment Inc)
Asset Sales. The Company (a) Holdings shall not, and shall not permit any of its the Restricted Subsidiaries to, consummate cause or make an Asset Sale unless:
Sale, unless (1x) the Company (Holdings 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 Fair Market Value (as determined in good faith by Holdings) of the assets or Equity Interests issued or sold or otherwise disposed of;
, and (2) 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; and
(3y) at least 75% of the consideration therefor received in the Asset Sale by the Company Holdings or such Restricted Subsidiary Subsidiary, as the case may be, is in the form of cash. For purposes of this provision, each of Cash Equivalents or Additional Assets; provided that the following will be deemed to be cashamount of:
(ai) any liabilities, liabilities (as shown on the Company's Holdings’ or such a Restricted Subsidiary's ’s most recent balance sheet, sheet or in the notes thereto) of the Company Holdings or any a Restricted Subsidiary (other than contingent liabilities and liabilities that are by their terms subordinated to the Notes or any Subsidiary Guarantee) that are assumed by the transferee of any such assets pursuant to a customary novation agreement or that releases are otherwise cancelled or terminated in connection with the Company or transaction with such Restricted Subsidiary from further liability;transferee,
(bii) any securities, notes or other obligations or other securities or assets received by the Company Holdings or any such Restricted Subsidiary from such transferee that are converted within 30 days by the Company Holdings or such Restricted Subsidiary into cash, cash within 180 days of the receipt thereof (to the extent of the cash received),
(iii) with respect to any Asset Sale of Oil and Gas Properties by Holdings or any Restricted Subsidiary, the costs and expenses related to the exploration, development, completion or production of such Oil and Gas Properties and activities related thereto agreed to be assumed by the transferee (or an Affiliate thereof),
(iv) Indebtedness of any Restricted Subsidiary that is no longer a Restricted Subsidiary as a result of such Asset Sale, to the extent that Holdings and each other Restricted Subsidiary are released from any guarantee of payment of such Indebtedness in connection with the Asset Sale,
(v) consideration consisting of Indebtedness of Holdings (other than Subordinated Indebtedness) received after the Issue Date from Persons who are not Holdings or any Restricted Subsidiary in connection with the Asset Sale and that conversion; is cancelled, and
(cvi) any payment Designated Non-cash Consideration received by Holdings or any Restricted Subsidiary in such Asset Sale having an aggregate Fair Market Value (as determined in good faith by Holdings), taken together with all other Designated Non-cash Consideration received pursuant to this Section 4.06(a)(vi) that is at that time outstanding, not to exceed the greater of Senior Debt secured by 10.0% of Adjusted Consolidated Net Tangible Assets and $100.0 million at the assets sold 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 Asset Sale. purposes of this Section 4.06(a).
(b) Within 365 days after the Holdings’ or any Restricted Subsidiary’s receipt of the Net Proceeds of any Asset Sale, Holdings or such Restricted Subsidiary may apply the Net Proceeds from an such Asset Sale, the Company may apply those Net Proceeds at its option:
(1i) to repay Senior Debt and(A) Indebtedness constituting Bank Indebtedness and other Pari Passu Indebtedness that is secured by a Lien permitted under this Indenture, if the Senior Debt repaid is revolving credit Indebtedness, to correspondingly reduce commitments with respect thereto;
(2B) to acquire all or substantially all Indebtedness of the assets of, or a majority of the Voting Stock of, another Permitted Business;
(3) to make capital expenditures;
(4) to acquire other long-term assets that are used or useful in a Permitted Business; or
(5) for any combination of clauses (1) through (4) above. Pending the final application of any Net Proceeds, the Company may temporarily reduce revolving credit borrowings or otherwise invest the Net Proceeds in any manner Restricted Subsidiary that is not prohibited by this Indenture. Any Net Proceeds from Asset Sales that are not applied or invested as provided in the preceding paragraph will constitute "Excess Proceeds." When the aggregate amount of Excess Proceeds exceeds $5.0 million within five business days thereof, the Company will make an Asset Sale Offer to all Holders of Notes and all holders of other Indebtedness that is pari passu with the Notes containing provisions similar to those set forth in this Indenture with respect to offers to purchase or redeem with the proceeds of sales of assets in accordance with Section 3.09 hereof to purchase the maximum principal amount of Notes and such other pari passu Indebtedness that may be purchased out of the Excess Proceeds. The offer price in any Asset Sale Offer will be equal to 100% of principal amount plus accrued and unpaid interest and Additional Interest, if any, to the date of purchase, and will be payable in cash. If any Excess Proceeds remain after consummation of an Asset Sale Offer, the Company may use those Excess Proceeds for any purpose not otherwise prohibited by this Indenture. If the aggregate principal amount of Notes and other pari passu Indebtedness tendered into such Asset Sale Offer exceeds the amount of Excess Proceeds, the Trustee shall select the Notes and such other pari passu Indebtedness to be purchased on a pro rata basis based on the principal amount of Notes and such other pari passu Indebtedness tendered. Upon completion of each Asset Sale Offer, the amount of Excess Proceeds will be reset at zero. The Company shall comply with the requirements of Rule 14e-1 under the Exchange Act and any other securities laws and regulations thereunder to the extent 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 4.10 of this Indenture, the Company shall comply with the applicable securities laws and regulations and shall not be deemed to have breached its obligations under those provisions of this Indenture by virtue of such conflict.Subsidiary Guarantor,
Appears in 2 contracts
Sources: Indenture (Athlon Energy Inc.), Indenture (Athlon Energy Inc.)
Asset Sales. (a) The Company shall not, and 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 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);
(2ii) 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 ’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
(3iii) at least 75% of the consideration received in the Asset Sale by the Company or such Restricted Subsidiary is in the form of cashcash or Cash Equivalents. For purposes of this provisionSection 4.10(a)(iii) only, each of the following will be deemed to be cash:
(a1) any liabilities, as shown on the Company's ’s or such Restricted Subsidiary's ’s most recent balance sheet, of the Company or any Restricted Subsidiary (other than contingent liabilities and liabilities that are by their terms subordinated to the Notes or any Subsidiary Note Guarantee) that are assumed by the transferee of any such assets pursuant to a customary novation agreement that releases the Company or 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 within 30 days by the Company or such Restricted Subsidiary into cashcash or Cash Equivalents within ninety (90) days after the applicable Asset Sale, to the extent of the cash or Cash Equivalents received 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
(c5) any payment of Senior Debt secured Designated Non-Cash Consideration received by the assets sold 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) Within 365 360 days after the receipt of any Net Proceeds from an Asset Sale, the Company or the applicable Restricted Subsidiary may apply those Net Proceeds Proceeds, at its option:
(1i) to repay permanently reduce, prepay, repay, satisfy and discharge, or purchase, as applicable, Indebtedness under the Credit Agreement, the 2029 Senior Debt Secured Notes or the 2026 Exchangeable Senior Notes (and with respect to Net Proceeds of a Restricted Subsidiary that is not a Guarantor, Indebtedness of such Restricted Subsidiary) and, if the Senior Debt Indebtedness permanently repaid is revolving credit Indebtedness, to correspondingly reduce commitments with respect thereto;
(2ii) to acquire acquire, or enter into a definitive agreement to acquire, all or substantially all of the assets of, a Permitted Business or a majority of the Voting Stock of, another of a Person engaged in a Permitted Business; provided that such Person becomes a Restricted Subsidiary; and provided, further, however, in the case of a definitive agreement, that such acquisition closes within 120 days of such 360-day period;
(3iii) to make a capital expenditures;expenditure in or that is used or useful in a Permitted Business (provided that the completion of (a) construction of new facilities, (b) expansions to existing facilities and (c) repair or construction of damaged or destroyed facilities, in each case, which commences within such 360 days may extend for an additional 360-day period if the Net Proceeds to be used for such construction, expansion or repair are committed specifically for such activity within such 360 days); or
(4iv) to acquire other long-term assets that are used or useful in a Permitted Business; or
(5) for any combination of clauses (1) through (4) above. Pending the final application of any Net Proceeds, the Company may temporarily reduce revolving credit borrowings or otherwise invest the Net Proceeds in any manner that is not prohibited by this Indenture. Commencement of an “Asset Sale Offer” with respect to the 2029 Senior Secured Notes as may be required under the 2029 Senior Secured Notes Indenture (a “Secured Notes Asset Sale Offer”) within such 360-day period shall be deemed to satisfy the condition of clause (i) of this Section 4.10(c); provided that to the extent the Net Proceeds on the basis of which any such Secured Notes Asset Sale Offer is made are declined by the holders of the 2029 Senior Secured Notes, any of such declined Net Proceeds shall be added to the calculation of Net Proceeds from Asset Sales that are not applied or invested as provided in Section 4.10(d) hereof.
(d) Any Net Proceeds from Asset Sales that are not applied or invested as provided in clause (c) of this Section 4.10, or that the preceding paragraph Company determines will not be applied or invested as provided in clause (c) of this Section 4.10, shall constitute "“Excess Proceeds." ”; provided that if the Company commences a Secured Notes Asset Sale Offer during such 360-day period, any Net Proceeds on the basis of which any such Secured Notes Asset Sale Offer is made will not be deemed Excess Proceeds until declined by the holders of the 2029 Senior Secured Notes pursuant to the Secured Notes Asset Sale Offer. When the aggregate amount of Excess Proceeds exceeds $5.0 million within five business days thereof50.0 million, the Company will shall make an offer (an “Asset Sale Offer Offer”) to all Holders of Notes and and, at the Company’s option, all holders of other Indebtedness that is pari passu in right of payment with the Notes containing provisions similar to those set forth in this Indenture with respect to offers to purchase or redeem with the proceeds of sales of assets in accordance with Section 3.09 hereof assets, to purchase on a pro rata basis the maximum principal amount of Notes and such other pari passu Indebtedness that may be purchased out of the Excess Proceeds. The offer price in any Asset Sale Offer will be equal to 100% of the principal amount amount, plus accrued and unpaid interest and Additional Interestinterest, if any, to (but not including) the date of purchase, and will shall be payable in cash. If any Excess Proceeds remain after consummation of an Asset Sale Offer, the Company may use those Excess Proceeds for any purpose not otherwise prohibited by this Indenture. If the aggregate principal amount of Notes and other pari passu Indebtedness tendered into such Asset Sale Offer exceeds the amount of Excess Proceeds, the Trustee shall select the Notes and such other pari passu Indebtedness to shall be purchased on a pro rata basis based on the principal amount of Notes and such other pari passu Indebtedness tenderedbasis. Upon completion of each Asset Sale Offer, the amount of Excess Proceeds will shall be reset at zero. .
(e) The Company shall comply with the requirements of Rule 14e-1 under the Exchange Act and any other securities laws and regulations thereunder to the extent those laws and regulations are applicable in connection with each repurchase of Notes pursuant to an Asset Sale Offer. To the extent that the provisions of any securities laws or regulations conflict with the Asset Sale provisions of Section 3.09 or 4.10 of this Indenture, the Company shall comply with the applicable securities laws and regulations and shall not be deemed to have breached its obligations under those provisions of this Indenture Section 4.10 by virtue of such conflictcompliance.
Appears in 1 contract
Sources: Indenture (Geo Group Inc)
Asset Sales. (a) The Company shall not, and 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 (as determined in good faith by the Company) 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 set forth in an Officers' Certificate delivered to the Trustee; and
(3ii) except in the case of a Permitted Asset Swap or the disposition of any property the disposition of which is necessary for the Company, a REIT Parent or a Restricted Subsidiary 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 by the Company or any such Restricted Subsidiary, as the case may be, is in the Asset Sale form of cash or Cash Equivalents; provided that the amount of:
(A) any liabilities (as shown on the Company’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 such Restricted Subsidiary is in the form of cash. For purposes of this provision, each of the following will be deemed to be cash:
(a) any liabilities, as shown on the Company's or such Restricted Subsidiary's most recent balance sheet, of the Company or any Restricted Subsidiary (other than contingent liabilities Contingent Obligations and liabilities that are by their terms subordinated to the Notes or any Subsidiary Guarantee) that are assumed by the transferee of any such assets 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 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 within 30 days by the Company or such Restricted Subsidiary into cashcash 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,
(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 conversion; 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 payment Capital Stock or assets described in clauses (A) and (D) of Senior Debt secured by the assets sold in the Asset Sale. Section 4.10(b)(ii) hereof shall be deemed to be cash for purposes of this provision and for no other purpose.
(b) Within 365 days after the receipt of any Net Proceeds from an of any Asset Sale, the Company may apply those Net Proceeds or such Restricted Subsidiary, at its option, may apply an amount equal to the Net Proceeds from such Asset Sale,
(i) to permanently reduce:
(1A) to repay Senior Debt and, if Obligations under the Notes or any other Pari Passu Indebtedness (including obligations under the Senior Debt repaid is revolving credit Indebtedness, 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(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
(2B) Indebtedness of a Non-Guarantor Subsidiary, other than Indebtedness owed to acquire all the Company or substantially all of the assets of, or a majority of the Voting Stock of, another Permitted Business;Restricted Subsidiary; or
(3ii) 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, 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;
expenditures or (4D) to acquire other long-term assets that (other than Capital Stock) that, in the case of each of (A), (B), (C) and (D) are either (x) used or useful in a Permitted BusinessSimilar 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 (unless such assets or Capital Stock are Excluded Assets and are not pledged to secure any other First-Priority Obligations) 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; or
(5iii) for any combination of clauses the foregoing.
(1c) through (4) above. Pending the final application of any Net Proceeds, the Company may temporarily reduce revolving credit borrowings or otherwise invest the Net Proceeds in any manner that is not prohibited by this Indenture. Any Net Proceeds from an Asset Sales Sale that are not invested or applied or invested as provided and within the time period set forth in the preceding paragraph Section 4.10(b) will be deemed to constitute "“Excess Proceeds." ” When the aggregate amount of Excess Proceeds exceeds $5.0 million within five business days thereof75.0 million, the Company will or any Restricted Subsidiary shall make an Asset Sale Offer offer to all Holders of Notes and all and, if required by the terms of any Pari Passu Indebtedness, to the holders of other such Pari Passu Indebtedness that is pari passu with the Notes containing provisions similar to those set forth in this Indenture with respect to offers to purchase or redeem with the proceeds of sales of assets in accordance with Section 3.09 hereof (an “Asset Sale Offer”) to purchase 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 pari passu Pari Passu Indebtedness that may be purchased out of the Excess Proceeds. The Proceeds at an offer price in any Asset Sale Offer will be cash in an amount equal to 100% of the principal amount thereof, plus accrued and unpaid interest and Additional Interestinterest, 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, and will be payable in cash. If any Excess Proceeds remain after consummation of accordance with the procedures set forth in this Indenture.
(d) The Issuers shall commence an Asset Sale Offer, the Company may use those Offer with respect to Excess Proceeds for any purpose not otherwise prohibited 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. If , with a copy to the Trustee.
(e) To the extent that the aggregate principal amount of Notes and other pari passu such Pari Passu Indebtedness tendered into such pursuant to an Asset Sale Offer is less than the Excess Proceeds, the Issuers may use any remaining Excess Proceeds (the “Declined Excess Proceeds”) for general corporate purposes, subject to Section 4.10(f) below and the other 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 other pari passu 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 principal amount (determined as set forth above) of the Notes and such other pari passu Pari Passu Indebtedness tenderedtendered 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 each any such Asset Sale Offer, the amount of Excess Proceeds will 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 Issuers shall comply with the requirements of Rule 14e-1 under the Exchange Act and any other securities laws and regulations thereunder to the extent those such laws and or regulations are applicable in connection with each 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 Section 3.09 or 4.10 of this Indenture, the Company Issuers shall comply with the applicable securities laws and regulations and shall not be deemed to have breached its their obligations under those provisions of described in this Indenture by virtue of such conflictthereof.
Appears in 1 contract
Sources: Indenture (Uniti Group Inc.)
Asset Sales. The Company shall not, and 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 of the assets or Equity Interests issued or sold or otherwise disposed of;
of (2) the fair market value is as determined by the Company's 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
) and (3ii) at least 75% of the consideration therefor received in the Asset Sale by the Company or such Restricted Subsidiary is in the form of cash. For purposes cash or Cash Equivalents other than in the case where the Company or such Restricted Subsidiary is undertaking a Permitted Asset Swap; provided that the amount of this provision, each of the following will be deemed to be cash:
(ax) any liabilities, liabilities (as shown on the Company's or such Restricted Subsidiary's most recent balance sheet), of the Company or any Restricted Subsidiary (other than contingent liabilities and liabilities that are by their terms subordinated to the Notes or any Subsidiary GuaranteeGuarantee thereof) that are assumed by the transferee of any such assets pursuant to a customary novation agreement that releases the Company or 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 30 15 days by the Company or such Restricted Subsidiary into cash, cash (to the extent of the cash received in that conversion; and
(creceived) any payment shall be deemed to be cash for purposes of Senior Debt secured by the assets sold in the Asset Salethis provision. Within 365 360 days after the receipt of any Net Proceeds from an Asset Sale, the Company or its Restricted Subsidiaries may apply those such Net Proceeds Proceeds, at its option:
, (1a) to repay permanently reduce Senior Debt andDebt, if the Senior Debt repaid is revolving credit Indebtedness, to correspondingly reduce commitments with respect thereto;
or (2b) to acquire all the investment in, or substantially all the making of a capital expenditure or the assets acquisition of, other property or a majority of the Voting Stock of, another Permitted Business;
(3) to make capital expenditures;
(4) to acquire other long-term assets that are in each case used or useful useable in a Permitted Business; or
, or Capital Stock of any Person primarily engaged in a Permitted Business if, as a result of the investment in or acquisition by the Company or any Restricted Subsidiary thereof, such Person becomes a Restricted Subsidiary, or (5c) for any a combination of the uses described in clauses (1a) through and (4) aboveb). Pending the final application of any such Net Proceeds, the Company or its Restricted Subsidiaries may temporarily reduce revolving credit borrowings Senior Debt or otherwise invest the such Net Proceeds in any manner that is not prohibited by this Indenture. Any Net Proceeds from Asset Sales Sales, that are not applied or invested as provided in the preceding first sentence of this paragraph within the 360-day period after receipt of such Net Proceeds will be deemed to constitute "Excess Proceeds." When the aggregate amount of Excess Proceeds exceeds $5.0 10.0 million within five business days thereof(an "Asset Sale Offering Triggering Event"), the Company will be required to make an Asset Sale Offer offer to all Holders of Notes and and, to the extent required by the terms of any Pari Passu Indebtedness to all holders of other such Pari Passu Indebtedness that is pari passu with the Notes containing provisions similar to those set forth in this Indenture with respect to offers to purchase or redeem with the proceeds of sales of assets in accordance with Section 3.09 hereof (an "Asset Sale Offer") to purchase the maximum principal amount of Notes and any such other pari passu Pari Passu Indebtedness that may be purchased out of the Excess Proceeds. The , at an offer price in any Asset Sale Offer will be cash in an amount equal to 100% of the principal amount thereof plus accrued and unpaid interest and Additional InterestLiquidated Damages thereon, if any, to the date of purchase, in accordance with the procedures set forth in Section 3.09 hereof or such Pari Passu Indebtedness, as applicable. To the extent that the aggregate principal amount of Notes and will be payable in cash. If any Excess Proceeds remain after consummation of such Pari Passu Indebtedness tendered pursuant to an Asset Sale OfferOffer is less than the Excess Proceeds, the Company or its Restricted Subsidiaries may use those any remaining Excess Proceeds for any purpose not otherwise prohibited by this Indenturegeneral corporate purposes. If the aggregate principal amount of Notes and other pari passu any such Pari Passu Indebtedness tendered into such Asset Sale Offer surrendered by holders thereof exceeds the amount of Excess Proceeds, the Trustee shall select the Notes and such other pari passu Indebtedness to be purchased on a pro rata basis based on the principal amount of Notes and such other pari passu Indebtedness tenderedbasis. Upon completion of each such Asset Sale Offer, the amount of Excess Proceeds will shall be reset at zero. The Company shall comply with the requirements of Rule 14e-1 under the Exchange Act and any other securities laws and regulations thereunder to the extent 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 4.10 of this Indenture, the Company shall comply with the applicable securities laws and regulations and shall not be deemed to have breached its obligations under those provisions of this Indenture by virtue of such conflict.
Appears in 1 contract
Sources: Indenture (Laralev Inc)
Asset Sales. The Company shall not, and 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 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 set forth in an Officers' Certificate delivered to the Trustee; and
) of the assets or Equity Interests issued or sold or otherwise disposed of and (3ii) at least 7585% of the consideration therefor received in the Asset Sale by the Company or such Restricted Subsidiary is in the form of cash. For purposes ; provided that the amount of this provision, each of the following will be deemed to be cash:
(a) any liabilities, liabilities (as shown on the Company's or such Restricted Subsidiary's most recent balance sheet), of the Company or any Restricted Subsidiary (other than contingent liabilities and liabilities that are by their terms subordinated to the Notes or any Subsidiary Guaranteeguarantee thereof) that are assumed by the transferee of any such assets pursuant to a customary novation agreement that releases the Company or 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 contemporaneously (subject to ordinary settlement periods) converted within 30 days by the Company or such Restricted Subsidiary into cash, cash (to the extent of the cash received in that conversion; and
(creceived) any payment shall be deemed to be cash for purposes of Senior Debt secured by the assets sold in the Asset Salethis Section 4.10. Within 365 180 days after the receipt of any Net Proceeds from an Asset Sale, the Company may apply those such Net Proceeds Proceeds, at its option:
, (1a) to repay Senior Debt and, if Indebtedness of the Senior Debt repaid is revolving credit Indebtedness, to correspondingly reduce commitments with respect thereto;
Company under a Credit Facility or (2b) to acquire all or substantially all of the assets of, or a majority of the Voting Stock of, another Permitted Business;
, (3c) to make a capital expenditures;
expenditure or (4d) to acquire other long-term assets that are used or useful in a Permitted Business; or
(5) for any combination of clauses (1) through (4) above. Pending the final application of any such Net Proceeds, the Company may temporarily reduce revolving credit borrowings or otherwise invest the such Net Proceeds in any manner that is not prohibited by this Indenture. Any Net Proceeds from Asset Sales that are not applied or invested as provided in the preceding first sentence of this paragraph will be deemed to constitute "Excess Proceeds." When the aggregate amount of Excess Proceeds exceeds $5.0 million within five business days thereofmillion, the Company will shall be required to make an Asset Sale Offer offer to all Holders of Notes and all holders of other Indebtedness that is pari passu with the Notes containing provisions similar to those set forth in this Indenture with respect to offers to purchase or redeem with the proceeds of sales of assets in accordance with Section 3.09 hereof (an "Asset Sale Offer") to purchase the maximum principal amount of Notes and such other pari passu Indebtedness that may be purchased out of the Excess Proceeds. The , at an offer price in any Asset Sale Offer will be cash in an amount equal to 100% of the principal amount thereof plus accrued and unpaid interest and Additional Interest, if any, thereon to the date of purchase, in accordance with the procedures set forth in this Indenture and will be payable in cashsuch other pari passu Indebtedness. If To the extent that any Excess Proceeds remain after consummation of an Asset Sale Offer, the Company may use those such Excess Proceeds for any purpose not otherwise prohibited by this Indenture. If the aggregate principal amount of Notes and such other pari passu Indebtedness tendered into such Asset Sale Offer surrendered by Holders thereof exceeds the amount of Excess Proceeds, the Trustee shall select the Notes and such other pari passu Indebtedness to be purchased on a pro rata basis based on the principal amount of Notes and such other pari passu Indebtedness tenderedbasis. Upon completion of each an Asset Sale Offer, the amount of Excess Proceeds will shall be reset at zero. The Company shall comply with the requirements of Rule 14e-1 under the Exchange Act and any other securities laws and regulations thereunder to the extent 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 4.10 of this Indenture, the Company shall comply with the applicable securities laws and regulations and shall not be deemed to have breached its obligations under those provisions of this Indenture by virtue of such conflict.
Appears in 1 contract
Sources: Supplemental Indenture (Windmere Durable Holdings Inc)
Asset Sales. (a) The Company shall not, and 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 Fair Market Value of the assets or Equity Interests issued or sold or otherwise disposed of;
(2ii) the fair market value 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
(3iii) at least 75% of the consideration therefor received in the Asset Sale by the Company or such Restricted Subsidiary is in the form of cashCash Equivalents or Replacement Assets or a combination of the foregoing. For purposes of this provisionSection 4.10(a)(iii), each of the following will shall be deemed to be cashCash Equivalents:
(aA) any liabilities, liabilities (as shown on the Company's or such Restricted Subsidiary's most recent balance sheet, ) of the Company or any Restricted Subsidiary (other than contingent liabilities and liabilities, liabilities that are by their terms subordinated to the Notes or any Subsidiary GuaranteeNote Guarantee and liabilities that are owed to the Company or any Affiliate of the Company) that are assumed by the transferee of any such assets pursuant to a customary written novation agreement that releases the Company or such Restricted Subsidiary from further liability;
(bB) any securities, notes or other obligations received by the Company or any such Restricted Subsidiary from such transferee that are contemporaneously (subject to ordinary settlement periods) converted within 30 days by the Company or such Restricted Subsidiary into cash, cash (to the extent of the cash received in that conversion); and
(cC) any payment of Senior Debt secured Designated Noncash Consideration received by the assets sold Company or any Restricted Subsidiary thereof in such Asset Sale having a Fair Market Value, taken together with all other Designated Noncash Consideration received pursuant to this clause (C) that is at that time outstanding, not to exceed $10.0 million at the Asset Sale. time of receipt of such Designated Noncash Consideration, with the Fair Market Value of each item of Designated Noncash Consideration being measured at the time received without giving effect to subsequent changes in value.
(b) Within 365 360 days after the receipt of any Net Proceeds from an Asset Sale, the Company or any of its Restricted Subsidiaries may apply those such Net Proceeds at its option:
(1i) to repay Senior Debt unsubordinated Secured Indebtedness and, if the Senior Debt Secured Indebtedness repaid is revolving credit Indebtedness, to correspondingly reduce commitments with respect thereto;; or
(2ii) to acquire all purchase Replacement Assets or substantially all make a capital expenditure (or enter into a binding agreement to purchase such assets or make such capital expenditure, so long as such purchase is consummated, or such capital expenditure is made, within 360 days of the assets of, date of such binding agreement) in or a majority of the Voting Stock of, another Permitted Business;
(3) to make capital expenditures;
(4) to acquire other long-term assets that are is used or useful in a Permitted Business; or
(5) for any combination of clauses (1) through (4) above. Pending the final application of any such Net Proceeds, the Company may temporarily reduce revolving credit borrowings or otherwise invest the such Net Proceeds in any manner that is not prohibited by this Indenture. .
(c) Any Net Proceeds from Asset Sales that are not applied or invested as provided in the preceding paragraph will Section 4.10(b) above shall constitute "Excess ProceedsEXCESS PROCEEDS." When Within 30 days after the aggregate amount of Excess Proceeds exceeds $5.0 million within five business days thereof15.0 million, the Company will shall make an Asset Sale Offer offer (an "ASSET SALE OFFER") to all Holders of Notes and all holders of other Indebtedness that is pari passu with the Notes or any Note Guarantee containing provisions similar to those set forth in this Indenture with respect to offers to purchase or redeem with the proceeds of sales of assets in accordance with Section 3.09 hereof assets, to purchase the maximum principal amount of Notes and such other pari passu Indebtedness that may be purchased out of the Excess Proceeds. The offer price in any Asset Sale Offer will be equal to 100% of the principal amount (or 100% of the accreted value thereof, in the case of Indebtedness sold at a discount) of the Notes and such other pari passu Indebtedness plus accrued and unpaid interest and Additional InterestLiquidated Damages, if any, to the date of purchase, and will be payable in cash. If any Excess Proceeds remain after consummation of an Asset Sale Offer, the Company or any of its Restricted Subsidiaries may use those such Excess Proceeds for any purpose not otherwise prohibited by this Indenture. If the aggregate principal amount of Notes and such other pari passu Indebtedness tendered into such Asset Sale Offer exceeds the amount of Excess Proceeds, the Trustee shall select the Notes and such other pari passu Indebtedness to shall be purchased on a pro rata basis based on the principal amount of Notes and such other pari passu Indebtedness tendered. Upon completion of each Asset Sale Offer, the amount of Excess Proceeds will shall be reset at zero. The Company shall comply with the requirements of Rule 14e-1 under the Exchange Act and any other securities laws and regulations thereunder to the extent 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 4.10 of this Indenture, the Company shall comply with the applicable securities laws and regulations and shall not be deemed to have breached its obligations under those provisions of this Indenture by virtue of such conflict.
Appears in 1 contract
Sources: Indenture (Venture Holdings, Inc.)
Asset Sales. The Company shall not, and 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 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 set forth in an Officers' Certificate delivered to the Trustee; and
) of the assets or Equity Interests issued or sold or otherwise disposed of and (3ii) at least 7580% of the consideration therefor received in the Asset Sale by the Company or such Restricted Subsidiary is in the form of cash. For purposes ; provided that the amount of this provision, each of the following will be deemed to be cash:
(ax) any liabilities, liabilities (as shown on the Company's or such Restricted Subsidiary's most recent balance sheet, ) of the Company or any Restricted Subsidiary (other than contingent liabilities and liabilities that are by their terms subordinated to the Notes or any Subsidiary GuaranteeGuarantee thereof) that are assumed by the transferee of any such assets pursuant to and either (1) such assumption is evidenced by a customary novation agreement that releases the Company or such Restricted Subsidiary from further liability;
liability or (b2) all such liabilities are paid in full within five days of such Asset Sale by the transferee of such assets and (y) 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 within 30 days by the Company or such Restricted Subsidiary into cash, cash (to the extent of the cash received in that conversion; and
(c) any payment received), shall be deemed to be cash for purposes of Senior Debt secured by the assets sold in the Asset Salethis provision. Within 365 180 days after the receipt of any Net Proceeds from an Asset Sale, the Company may apply those such Net Proceeds Proceeds, at its option:
, (1a) to repay Senior Debt and, if the Senior Debt repaid is revolving credit Indebtedness, (and to correspondingly reduce lending commitments with respect thereto;
thereto in the case of Senior Debt that is term Indebtedness or revolving credit Indebtedness and was incurred pursuant to a Credit Facility), (2b) to acquire all or substantially all the acquisition of a majority of the assets of, or a majority of the Voting Stock of, another Permitted Business;
(3) to make , the making of a capital expenditures;
(4) to acquire expenditure or the acquisition of other long-term assets that are used or useful in a Permitted Business; or
Business or (5c) reimburse the Company or its Subsidiaries for any combination expenditures made, and costs incurred to repair, rebuild, replace or restore property subject to loss, damage or taking to the extent that Net Proceeds consist of clauses (1) through (4) aboveinsurance proceeds received on account of such loss, damage or taking. Pending the final application of any such Net Proceeds, the Company may temporarily reduce revolving credit borrowings or otherwise invest the such Net Proceeds in any manner that is not prohibited by this Indenture. Any Net Proceeds from Asset Sales that are not applied or invested as provided in the preceding first sentence of this paragraph will shall be deemed to constitute "Excess Proceeds." When the aggregate amount of Excess Proceeds exceeds $5.0 million within five business days thereofmillion, the Company will shall be required to make an Asset Sale Offer offer to all Holders of Notes and all holders of other Indebtedness that is pari passu with the Notes containing provisions similar to those set forth in this the Indenture with respect to offers to purchase or redeem with the proceeds of sales of assets in accordance with Section 3.09 hereof (an "Asset Sale Offer") to purchase the maximum principal amount of Notes and such other pari passu Indebtedness that may be purchased out of the Excess Proceeds. The , at an offer price in any Asset Sale Offer will be cash in an amount equal to 100% of the principal amount thereof plus accrued and unpaid interest and Additional InterestLiquidated Damages thereon, if any, to the date of purchase, in accordance with the procedures set forth in Section 3.09 hereof and will be payable in cashsuch other Indebtedness. If To the extent that any Excess Proceeds remain after consummation of an Asset Sale Offer, the Company may use those such Excess Proceeds for any purpose not otherwise prohibited by this Indenture. If the aggregate principal amount of Notes and such other pari passu Indebtedness tendered into such Asset Sale Offer surrendered by Holders thereof exceeds the amount of Excess Proceeds, the Trustee shall select the Notes and such other pari passu Indebtedness to be purchased on a pro rata basis based on the principal amount of Notes and such other pari passu Indebtedness tenderedbasis. Upon completion of each Asset Sale Offersuch offer to purchase, the amount of Excess Proceeds will shall be reset at zero. The Company shall comply with the requirements of Rule 14e-1 under the Exchange Act and any other securities laws and regulations thereunder to the extent 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 4.10 of this Indenture, the Company shall comply with the applicable securities laws and regulations and shall not be deemed to have breached its obligations under those provisions of this Indenture by virtue of such conflict.
Appears in 1 contract
Sources: Indenture (Clean Towel Service Inc)
Asset Sales. The Company shall will not, and shall 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 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 set forth in an Officers' Certificate delivered to the Trustee; and
(3b) at least 75% of the aggregate consideration received in 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 cashcash or Cash Equivalents. For purposes of this provision, each of the following will be deemed to be cash:
(ai) any liabilities, as shown on the Company's or such Restricted Subsidiary's ’s most recent consolidated balance sheet, of the Company or any of its Restricted Subsidiary Subsidiaries (other than contingent liabilities and liabilities that are by their terms subordinated to the Notes or any Subsidiary 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 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 within 30 days by the Company or such Restricted Subsidiary into cash, to the extent of the cash received in that conversion;
(iv) any Capital Stock or assets of the kind referred to in clause (ii) or (iv) of Section 4.10(c) hereof; and
(v) 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 (v), not to exceed an amount equal to 5.0% of 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) any payment of Senior Debt secured by the assets sold in the Asset Sale. Within 365 days after the receipt of any Net Proceeds from an Asset Sale, the Company or one or more of its Restricted Subsidiaries may apply those an amount equal to the amount of such Net Proceeds at its optionoption to any combination of the following:
(1i) to repay Senior Debt andrepay, if repurchase or redeem any senior Indebtedness of the Senior Debt repaid is revolving credit IndebtednessCompany or any Guarantor, in each case owing to correspondingly reduce commitments with respect theretoa Person other than the Company or any Restricted Subsidiary;
(2ii) to acquire all or substantially all of the assets ofassets, 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 majority Restricted Subsidiary of the Voting Stock of, another Permitted BusinessCompany;
(3iii) to make capital expenditures;expenditures in respect of the Company’s or any of its Restricted Subsidiaries’ Oil and Gas Business; or
(4iv) to acquire other long-term 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 satisfied if a Permitted Business; or
(5) for bona fide binding contract committing to make the acquisition referred to therein is entered into by the Company or any combination of clauses (1) through (4) aboveits Restricted Subsidiaries with a Person other than an Affiliate of the Company within the time period specified in the preceding paragraph and such Net Proceeds are subsequently applied in accordance with such contract within 180 days following the date such agreement is entered into. Pending the final application of any Net Proceeds, the Company or any of its Restricted Subsidiaries may temporarily reduce revolving credit borrowings or otherwise invest the Net Proceeds in any manner that is not prohibited by this Indenture. Any The Net Proceeds from Asset Sales that are not applied or invested as provided in the preceding paragraph Sections 4.10(b) and 4.10(c) hereof will constitute "“Excess Proceeds." ” When the aggregate amount of Excess Proceeds exceeds $5.0 million 20.0 million, within five business days thereof, the Company will make an offer (an “Asset Sale Offer Offer”) to all Holders of Notes and all holders of other Indebtedness that is pari passu with the Notes containing provisions similar to those set forth in this Indenture Section 4.10 with respect to offers to purchase purchase, prepay or redeem such Indebtedness with the proceeds of sales of assets in accordance with Section 3.09 hereof assets, to purchase purchase, prepay or redeem, on a pro rata basis, the maximum principal amount of Notes and such other pari passu Indebtedness (plus all accrued interest on the 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 redeemed out of the Excess Proceeds. The offer price in any Asset Sale Offer will be equal to 100% of the principal amount amount, plus accrued and unpaid interest and Additional Interestinterest, if any, to to, but excluding, the date of purchase, prepayment or redemption, subject to the rights of Holders of Notes on the relevant record date to receive interest due on the relevant interest payment date, and will be payable in cash. If any Excess Proceeds remain after consummation of an Asset Sale Offer, the Company or any of its Restricted Subsidiaries may use those Excess Proceeds for any purpose not otherwise prohibited by this Indenture. If the aggregate principal amount of Notes and other pari passu Indebtedness tendered into in such Asset Sale Offer exceeds the amount of Excess ProceedsProceeds allocated to the purchase of Notes, the Trustee shall will select the Notes and such other pari passu Indebtedness to be purchased on a pro rata basis (except that any Notes represented by a Note in global form will be selected by such method as DTC or its nominee or successor may require or, where such nominee or successor is the Trustee, a method that most nearly approximates pro rata selection as the Trustee deems fair and appropriate unless otherwise required by law), based on the principal amount amounts tendered (with such adjustments as may be deemed appropriate by the Company so that only Notes in denominations of Notes and such other pari passu Indebtedness tendered$2,000, or an integral multiple of $1,000 in excess thereof, will be purchased). Upon completion of each Asset Sale Offer, the amount of Excess Proceeds will be reset at zero. The Company shall will comply with the requirements of Rule 14e-1 under the Exchange Act and any other securities laws and regulations thereunder to the extent those laws and regulations are applicable in connection with each repurchase of Notes pursuant to 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 3.09, Section 4.15 or this Section 4.10 of this Indenturehereof, the Company shall will comply with the applicable securities laws and regulations and shall will not be deemed to have breached its obligations under those provisions of Section 3.09 or Section 4.15 hereof or this Indenture Section 4.10 by virtue of such conflictcompliance.
Appears in 1 contract
Sources: Indenture (Callon Petroleum Co)
Asset Sales. The Company shall not, and 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 (evidenced by a resolution of the Board of Directors) of the assets or Equity Interests issued or sold or otherwise disposed of;
of and (2) 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; and
(3b) at least 75% of the consideration therefor received in the Asset Sale by the Company or such Restricted Subsidiary is in the form of cash. For purposes cash or Cash Equivalents; provided, however, that the amount of this provision, each of the following will be deemed to be cash:
(ai) any liabilities, liabilities (as shown on the Company's or such Restricted Subsidiary's most recent balance sheet, ) of the Company or any such Restricted Subsidiary (other than contingent liabilities and liabilities that are by their terms subordinated to the Notes or any Subsidiary Guaranteeguarantee thereof) that are assumed by the transferee of any such assets pursuant to a customary novation agreement that releases the Company or 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 within 30 days by the Company or such Restricted Subsidiary into cash, cash (to the extent of the cash received in that conversion; and
(creceived) any payment shall be deemed to be cash for purposes of Senior Debt secured by the assets sold in the Asset Salethis Section 4.10. Within 365 days one year after the receipt of any Net Proceeds from an Asset Sale, the Company or any such Restricted Subsidiary may apply those such Net Proceeds at its option:
option (1a) to repay Senior Debt and, if the Senior Debt repaid is revolving credit Indebtedness, to correspondingly reduce commitments with respect thereto;
Indebtedness or (2b) to acquire all the acquisition of (i) any assets or substantially all of the assets of, or a majority of the Voting Stock of, another Permitted Business;
property (3other than Capital Stock) to make capital expenditures;
(4) to acquire other long-term assets that are used or useful in a Permitted Business; or
, (5ii) for any combination the Capital Stock of clauses a Person engaged in a Permitted Business that becomes a Restricted Subsidiary of the Company as a result of the acquisition of such Capital Stock or (1iii) through (4) aboveCapital Stock constituting a minority interest in 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 Company's Board of Directors. Pending the final application of any such Net Proceeds, the Company or any such Restricted Subsidiary may temporarily reduce revolving credit outstanding borrowings under the Credit Agreement or otherwise invest the such Net Proceeds in any manner that is not prohibited by this Indenture. Any Net Proceeds from Asset Sales that are not applied or invested as provided in the preceding first sentence of this paragraph will be deemed to constitute "Excess Proceeds." When the aggregate amount of Excess Proceeds exceeds $5.0 million within five business days thereofin any calendar year, the Company will be required to make an Asset Sale Offer offer to all Holders of Notes and all holders of Notes (and to holders of other Senior Subordinated Indebtedness that is pari passu with designated by the Notes containing provisions similar to those set forth in this Indenture with respect to offers to purchase or redeem with the proceeds of sales of assets in accordance with Section 3.09 hereof Company) (an "Asset Sale Offer") to purchase the maximum principal amount of Notes (and such other pari passu Indebtedness Senior Subordinated Indebtedness) that may be purchased out of the Excess Proceeds. The Proceeds at an offer price in any Asset Sale Offer will be cash in an amount equal to 100% of the principal amount thereof, plus accrued and unpaid interest and Additional InterestLiquidated Damages, if any, thereon to the date of purchase, in accordance with the procedures set forth in Section 3.09. To the extent that the aggregate amount of Notes (and will be payable in cash. If any Excess Proceeds remain after consummation of other Senior Subordinated Indebtedness) tendered pursuant to an Asset Sale OfferOffer is less than the Excess Proceeds, the Company may use those any remaining Excess Proceeds for any purpose not otherwise prohibited by this Indenture. If the aggregate principal amount of Notes (and other pari passu Indebtedness tendered into such Asset Sale Offer Senior Subordinated Indebtedness) surrendered by holders thereof exceeds the amount of Excess Proceeds, the Trustee shall select the Notes (and such other pari passu Indebtedness Senior Subordinated Indebtedness) to be purchased shall be selected on a pro rata basis based on the principal amount of Notes and such other pari passu Indebtedness tenderedbasis. Upon completion of each such Asset Sale Offer, the amount of Excess Proceeds will shall be reset at zero. The Company shall comply 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 those laws and regulations are applicable in connection with each the repurchase of Notes pursuant to an Asset Sale Offerthis Section 4.10. To the extent that the provisions of any securities laws or regulations conflict with the provisions of this Section 3.09 or 4.10 of this Indenture4.10, the Company shall comply with the applicable securities laws and regulations and shall not be deemed to have breached its obligations under those provisions of this Indenture Section 4.10 by virtue of such conflictthereof.
Appears in 1 contract
Asset Sales. The Company shall not, and 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 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 set forth in an Officers' Certificate delivered to the Trustee; and
) of the assets or Equity Interests issued or sold or otherwise disposed of and (3ii) at least 75% of the consideration therefor received in the Asset Sale by the Company or such Restricted Subsidiary is in the form of cash. For purposes ; provided that the amount of this provision, each of the following will be deemed to be cash:
(ax) any liabilities, liabilities (as shown on the Company's or such Restricted Subsidiary's most recent balance sheet), of the Company or any Restricted Subsidiary (other than contingent liabilities and liabilities that are by their terms subordinated to the Senior Notes or any such Subsidiary's Subsidiary GuaranteeGuarantee thereof) that are assumed by the transferee of any such assets pursuant (except with respect to assumptions of trade payables) to a customary novation agreement that releases the Company or 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 within 30 days by the Company or such Restricted Subsidiary into cash, cash (to the extent of the cash received in that conversion; and
received), shall be deemed to be cash for purposes of this clause (c) any payment of Senior Debt secured by the assets sold in the Asset Saleii). Within 365 days after the receipt of any Net Proceeds from an Asset Sale, the Company may apply those such Net Proceeds Proceeds, at its option:
, (1a) to repay Senior Debt and, if Indebtedness under the Senior Debt repaid is revolving credit Indebtedness, to correspondingly reduce commitments with respect thereto;
New Credit Agreement or (2b) to acquire all an investment in a Permitted Business through the making of a capital expenditure or substantially all the acquisition of the assets of, or a majority of the Voting Stock of, another Permitted Business;
(3) to make capital expenditures;
(4) to acquire other long-term assets that are used or useful in a Permitted Business; or
(5) for any combination of clauses (1) through (4) above. Pending the final application of any such Net Proceeds, the Company may temporarily reduce revolving credit borrowings or otherwise invest the such Net Proceeds in any manner that is not prohibited by this Indenture. Any Net Proceeds from Asset Sales that are not applied or invested as provided in the preceding first sentence of this paragraph will be deemed to constitute "Excess Proceeds." When the aggregate amount of Excess Proceeds exceeds $5.0 million within five business days thereof10.0 million, the Company will make shall commence an Asset Sale Offer to all Holders of Notes and all holders of other Indebtedness that is pari passu with the Notes containing provisions similar to those set forth in this Indenture with respect to offers to purchase or redeem with the proceeds of sales of assets in accordance with Section 3.09 hereof to purchase the maximum principal amount of Senior Notes and such other pari passu Indebtedness that may be purchased out of the Excess Proceeds. The , at an offer price in any Asset Sale Offer will be cash in an amount equal to 100% of the principal amount thereof plus accrued and unpaid interest and Additional InterestLiquidated Damages thereon, if any, to the date of purchase, and will be payable in cash. If any Excess Proceeds remain after consummation of an Asset Sale Offer, accordance with the Company may use those Excess Proceeds for any purpose not otherwise prohibited by this Indenture. If the aggregate principal amount of Notes and other pari passu Indebtedness tendered into such Asset Sale Offer exceeds the amount of Excess Proceeds, the Trustee shall select the Notes and such other pari passu Indebtedness to be purchased on a pro rata basis based on the principal amount of Notes and such other pari passu Indebtedness tendered. Upon completion of each Asset Sale Offer, the amount of Excess Proceeds will be reset at zeroprocedures set forth in Section 3.09 hereof. The Company shall comply with the requirements of Rule 14e-1 under the Exchange Act and any other securities laws and regulations thereunder to the extent those such laws and regulations are applicable in connection with each the repurchase of the Senior Notes pursuant to an in any Asset Sale Offer. To the extent that the provisions aggregate amount of any securities laws or regulations conflict with Senior Notes tendered pursuant to an Asset Sale Offer is less than the provisions of Section 3.09 or 4.10 of this IndentureExcess Proceeds, the Company may use any remaining Excess Proceeds for general corporate purposes. If the aggregate principal amount of Senior Notes surrendered by Holders thereof exceeds the amount of Excess Proceeds, the Trustee shall comply with select the applicable securities laws and regulations and shall not Senior Notes to be deemed to have breached its obligations under those provisions of this Indenture by virtue purchased on a pro rata basis. Upon completion of such conflictoffer to purchase, the amount of Excess Proceeds shall be reset at zero.
Appears in 1 contract
Sources: Indenture (Curtis Sub Inc)
Asset Sales. The Company shall not, and shall not permit any of its Restricted Subsidiaries to, consummate 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 of the assets or Equity Interests issued or sold or otherwise disposed of;
(2) the fair market value is as conclusively 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
) of the assets or Equity Interests issued or sold or otherwise disposed of and (3ii) at least 75% of the consideration therefor received in the Asset Sale by the Company or such Restricted Subsidiary is in the form of cash. For cash or Cash Equivalents; provided that for purposes of this provision, each (x) the amount of the following will be deemed to be cash:
(aA) any liabilities, liabilities (as shown on the Company's or such Restricted Subsidiary's most recent balance sheet, sheet of the Company or any Restricted such Subsidiary or in the notes thereto) of the Company or such Subsidiary (other than contingent liabilities and liabilities that are by their terms subordinated to the Notes Securities or any Subsidiary Guaranteethe Guarantees) that are assumed by the transferee of any such assets pursuant to a customary novation agreement that releases the Company or such Restricted Subsidiary from further liability;
and (bB) any securities, notes securities or other obligations received by the Company or any such Restricted Subsidiary from such transferee that are immediately converted within 30 days by the Company or such Restricted Subsidiary into cashcash or Cash Equivalents (or as to which the Company or such Subsidiary has received at or prior to the consummation of the Asset Sale a commitment (which may be subject to customary conditions) from a nationally recognized investment, merchant or commercial bank to convert into cash or Cash Equivalents within 90 days of the consummation of such Asset Sale and which are thereafter actually converted into cash or Cash Equivalents within such 90-day period) shall be deemed to be cash or Cash Equivalents (but shall not be deemed to be Net Proceeds for purposes of the following provisions until reduced to cash or Cash Equivalents) and (y) the fair market value of any Non-Cash Consideration received by the Company or a Subsidiary in any Non-Qualified Asset Sale shall be deemed to be cash to the extent that the aggregate fair market value (as conclusively determined by resolution of the Board of Directors set forth in any Officers' Certificate delivered to the Trustee) of all Non-Cash Consideration (measured at the time received and without giving effect to any subsequent changes in value) received by the Company or any of its Subsidiaries since the Issue Date in all Non-Qualified Asset Sales does not exceed 6% of the Company's Stockholders' Equity as of the date of such consummation. Notwithstanding the foregoing, to the extent the Company or any of the cash received in that conversion; and
(c) any payment its Subsidiaries receives Non-Cash Consideration as proceeds of Senior Debt secured by the assets sold in the an Asset Sale, such Non-Cash Consideration shall be deemed to be Net Proceeds for purposes of (and shall be applied in accordance with) the following 56 -50- provisions when the Company or such Subsidiary receives cash or Cash Equivalents from a sale, repayment, exchange, redemption or retirement of or extraordinary dividend or return of capital on such Non-Cash Consideration. Within 365 days after the receipt of any Net Proceeds from an Asset Sale, the Company or such Subsidiary may apply those such Net Proceeds at its option:
(1i) to repay Senior Debt andpurchase one or more Nursing Facilities or Related Businesses and/or a controlling interest in the Capital Stock of a Person owning one or more Nursing Facilities and/or one or more Related Businesses, if the Senior Debt repaid is revolving credit Indebtedness, to correspondingly reduce commitments with respect thereto;
(2) to acquire all or substantially all of the assets of, or a majority of the Voting Stock of, another Permitted Business;
(3ii) to make a capital expenditures;
(4) expenditure or to acquire other long-term assets tangible assets, in each case, that are used or useful in a Permitted Business; or
any business in which the Company is permitted to be engaged pursuant to Section 4.15 hereof or (5iii) for any combination to permanently reduce Indebtedness (other than Subordinated Indebtedness) of clauses (1) through (4) abovethe Company or its Subsidiaries. Pending the final application of any such Net Proceeds, the Company or such Subsidiary may temporarily reduce revolving credit borrowings Indebtedness or otherwise invest the such Net Proceeds in any manner that is not prohibited by this Indenturethe terms hereof. Any Net Proceeds from Asset Sales that are not so invested or applied or invested as provided in the preceding paragraph will shall be deemed to constitute "Excess Proceeds." When the aggregate amount of Excess Proceeds exceeds $5.0 million within five business days thereof25 million, the Company will shall make an Asset Sale Offer offer to all Holders of Notes Securities and all holders of any other Indebtedness that is pari passu of the Company ranking on a parity with the Notes containing Securities from time to time outstanding with similar provisions similar requiring the Company to those set forth in this Indenture with respect to offers make an offer to purchase or to redeem such Indebtedness with proceeds from any Asset Sales, pro rata in proportion to the proceeds respective principal amounts of sales of assets in accordance with Section 3.09 hereof the Securities and such other Indebtedness then outstanding (a "Senior Asset Sale Offer") to purchase the maximum principal amount of Notes Securities and such other pari passu Indebtedness that may be purchased out of the Excess Proceeds. The , at an offer price in any Asset Sale Offer will be cash equal to 100% of the principal amount thereof plus accrued and unpaid interest and Additional Interestthereon, if any, to the date of purchasepurchase (the "Purchase Price"), in accordance with the procedures set forth in Section 2.15 hereof. To the extent that the aggregate amount of Securities and will be payable in cash. If any Excess Proceeds remain after consummation of an such other Indebtedness tendered pursuant to a Senior Asset Sale OfferOffer is less than the Excess Proceeds, the Company may use those any remaining Excess Proceeds for any purpose general corporate purposes not otherwise prohibited at the time by the provisions of this Indenture. If the aggregate principal amount of Notes Securities and such other pari passu Indebtedness tendered into such Asset Sale Offer surrendered by holders thereof exceeds the amount of Excess Proceeds, the Trustee shall select the Notes Securities and such other pari passu Indebtedness to shall be purchased on a pro rata basis based on the principal amount of Notes and such other pari passu Indebtedness tenderedbasis. Upon completion of each a Senior Asset Sale Offer, the amount of Excess Proceeds will shall be reset at zero. The Company shall comply with the requirements of Rule 14e-1 under the Exchange Act and any other securities laws and regulations thereunder to the extent 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 4.10 of this Indenture, the Company shall comply with the applicable securities laws and regulations and shall not be deemed to have breached its obligations under those provisions of this Indenture by virtue of such conflict.
Appears in 1 contract
Sources: Indenture (Rehabilitation Associates of Lafayette Inc)
Asset Sales. The Company shall not, and 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 (as determined in good faith by the Board of Directors of the Company and set forth in an Officers' Certificate delivered to the Trustee) of the assets or Equity Interests issued or sold or otherwise disposed of;
of and (2) 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; and
(3ii) at least 75% of the consideration therefor received in the Asset Sale by the Company or such Restricted Subsidiary is in the form of cash. For purposes cash or Cash Equivalents; provided that the amount of this provision, each of the following will be deemed to be cash:
(ax) any liabilities, liabilities (as shown on the Company's or such Restricted Subsidiary's most recent balance sheet), of the Company or any Restricted Subsidiary (other than contingent liabilities and liabilities that are by their terms subordinated to the Notes or any or, in the case of liabilities of a Restricted Subsidiary, the Subsidiary GuaranteeGuarantee of such Subsidiary) that are assumed by the transferee of any such assets pursuant to a customary novation agreement that releases the Company or such 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 converted within 30 days by the Company or such Restricted Subsidiary into cash, cash (to the extent of the cash received in that conversion; and
(creceived) any payment within 180 days after receipt, shall be deemed to be cash for purposes of Senior Debt secured by the assets sold in the Asset Salethis provision. Within 365 360 days after the receipt of any Net Proceeds from an Asset Sale, the Company may apply those such Net Proceeds Proceeds, at its option:
, (1a) to repay Senior Debt and, or Pari Passu Indebtedness (provided that if the Senior Debt repaid is revolving credit Company shall so reduce Pari Passu Indebtedness, to correspondingly reduce commitments it will equally and ratably make an Asset Sale Offer (in accordance with respect thereto;
(2the procedures set forth below for an Asset Sale Offer) to acquire all or substantially all of the assets of, or a majority of the Voting Stock of, another Permitted Business;
Holders) and/or (3b) to make an investment in another business, the making of a capital expenditures;
(4) to acquire expenditure or the acquisition of other long-term assets that are used tangible assets, product distribution rights or useful intellectual property or rights thereto, in each case, in a Permitted Business; or
(5) for any combination line of clauses (1) through (4) abovebusiness permitted by Section 4.17. Pending the final application of any such Net Proceeds, the Company may temporarily reduce revolving credit borrowings under the Credit Facility or otherwise invest the such Net Proceeds in any manner that is not prohibited by this the Indenture. Any Net Proceeds from Asset Sales that are not applied or invested as provided in the preceding first sentence of this paragraph will be deemed to constitute "Excess Proceeds." When If and when the aggregate amount of Excess Proceeds exceeds $5.0 million within five business days thereofmillion, the Company will shall (i) make an Asset Sale Offer offer to all Holders of Notes and all holders of other Indebtedness that is pari passu with the Notes containing provisions similar to those set forth in this Indenture with respect to offers to (ii) prepay, purchase or redeem (or make an offer to do so) any other Pari Passu Indebtedness of the Company in 55 accordance with provisions requiring the Company to prepay, purchase or redeem such Indebtedness with the proceeds of from any asset sales of assets in accordance with Section 3.09 hereof (or offer to purchase do so), the maximum principal amount of Notes and of such other pari passu Indebtedness indebtedness that may be purchased out of the such Excess Proceeds. The , pro rata in proportion to the respective principal amounts (or accreted value, as applicable) of the Notes and such other Indebtedness required to be prepaid, purchased or redeemed or tendered for pursuant to such offer (an "Asset Sale Offer"), at an offer price in any Asset Sale Offer will be cash in an amount equal to 100% of the principal amount thereof plus accrued and unpaid interest and Additional InterestLiquidated Damages thereon, if any, any to the date of purchase, and will be payable in cashaccordance with the procedures set forth in Section 3.09. If any Excess Proceeds remain after consummation of an Asset Sale Offer, the Company may use those Excess Proceeds for any purpose not otherwise prohibited by this Indenture. If the aggregate principal amount of Notes and other pari passu Indebtedness tendered into such An Asset Sale Offer exceeds shall be made pursuant to the amount provisions of Excess Proceeds, the Trustee shall select the Notes and such other pari passu Indebtedness to be purchased on a pro rata basis based on the principal amount of Notes and such other pari passu Indebtedness tenderedSection 3.09. Upon completion of each hereof. The Asset Sale OfferOffer shall be made by the Company in compliance with all applicable laws, the amount of Excess Proceeds will be reset at zero. The Company shall comply with the requirements of including, without limitation, Rule 14e-1 under the Exchange Act and any other securities laws and regulations thereunder the rules thereunder, to the extent those laws applicable, and regulations are all other applicable in connection with each repurchase of Notes pursuant to an Asset Sale Offer. To the extent that the provisions of any federal and state securities laws or regulations conflict with the provisions of Section 3.09 or 4.10 of this Indenture, the Company shall comply with the applicable securities laws and regulations and shall not be deemed to have breached its obligations under those provisions of this Indenture by virtue of such conflictlaws.
Appears in 1 contract
Asset Sales. The Company shall not, and shall not permit any of its Restricted Subsidiaries to, consummate an Asset Sale unless:
unless (1i) the Company (or the applicable Restricted Subsidiary, as the case may be) , receives consideration at the time of the such Asset Sale at least equal to the fair market value of the assets or Equity Interests issued or sold or otherwise disposed of;
of (2) the fair market value is as determined in good faith 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
Directors), (3ii) at least 75% of the consideration received in the Asset Sale by the Company or the Restricted Subsidiary, as the case may be, from such Restricted Subsidiary is in Asset Sale shall be cash or Cash Equivalents; provided that the form amount of cash. For purposes of this provision, each of the following will be deemed to be cash:
(a) any liabilities, liabilities (as shown on the Company's or such Restricted Subsidiary's most recent balance sheet, ) of the Company or any such Restricted Subsidiary (other than contingent liabilities and liabilities that are by their terms subordinated to the Notes or any Subsidiary GuaranteeNotes) that are assumed by the transferee of any such assets pursuant to a customary novation agreement that releases the Company or such Restricted Subsidiary from further liability;
assets, (b) any securities, notes or other obligations received by the Company or any such Restricted Subsidiary from such transferee that are immediately converted within 30 days by the Company or such Restricted Subsidiary into cash, cash (to the extent of the cash received in that conversion; and
received) and (c) any payment of Senior Debt secured Designated Noncash Consideration received by the assets sold Company or 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 (c) that is at that time outstanding, not to exceed 10% of Total Assets at the Asset Sale. Within 365 days after time of the receipt of any Net Proceeds from such Designated Noncash Consideration (with the fair market value of each item of Designated Noncash Consideration being measured at the time received and without giving effect to subsequent changes in value), shall be deemed to be cash for the purposes of this provision, and (iii) upon the consummation of an Asset Sale, the Company may apply those shall apply, or cause such Restricted Subsidiary to apply, the Net Cash Proceeds at its option:
relating to such Asset Sale within 365 days of receipt thereof either (1A) to repay any Senior Debt and, if in the case of any Senior Debt repaid is under any revolving credit Indebtednessfacility, to correspondingly reduce commitments with respect thereto;
effect a commitment reduction under such revolving credit facility, (2B) to acquire all or substantially all of the assets ofreinvest in Productive Assets, or (C) a majority of the Voting Stock of, another Permitted Business;
(3) to make capital expenditures;
(4) to acquire other long-term assets that are used or useful in a Permitted Business; or
(5) for any combination of prepayment, repurchase and investment permitted by the foregoing clauses (1iii)(A) through and (4) aboveiii)(B). Pending the final application of any such Net Cash Proceeds, the Company or such Restricted Subsidiary may temporarily reduce Indebtedness under a revolving credit borrowings facility, if any, or otherwise invest such Net Cash Proceeds in Cash Equivalents. On the 366th day after an Asset Sale or such earlier date, if any, as the Board of Directors of the Company or of such Restricted Subsidiary determines not to apply the Net Cash Proceeds relating to such Asset Sale as set forth in any manner that is not prohibited by this Indenture. Any clauses (iii)(A), (iii)(B) or (iii)(C) of the next preceding sentence (each, a "Net Proceeds from Asset Sales that are not applied or invested as provided in the preceding paragraph will constitute Offer Trigger Date"Excess Proceeds." When ), the aggregate amount of Excess Net Cash Proceeds exceeds $5.0 million within five business days thereofthat have not been applied on or before such Net Proceeds Offer Trigger Date as permitted in clauses (iii)(A), (iii)(B) and (iii)(C) of the next preceding sentence (each a "Net Proceeds Offer Amount") shall be applied by the Company will or such Restricted Subsidiary to make an Asset Sale offer to purchase (the "Net Proceeds Offer") on a date (the "Net Proceeds Offer to Payment Date") not less than 30 nor more than 45 days following the applicable Net Proceeds Offer Trigger Date, from all Holders of Notes and all holders of other Indebtedness on a pro rata basis that is pari passu with the Notes containing provisions similar to those set forth in this Indenture with respect to offers to purchase or redeem with the proceeds of sales of assets in accordance with Section 3.09 hereof to purchase the maximum principal amount of Notes and such other pari passu Indebtedness that may be purchased out of equal to the Excess Proceeds. The offer Net Proceeds Offer Amount at a price in any Asset Sale Offer will be equal to 100% of the Accreted Value thereon on the date fixed for the closing of such offer plus accrued and unpaid Liquidated Damages thereon, if any (if prior to the Full Accretion Date), or 100% of the principal amount of the Notes to be purchased, plus accrued and unpaid interest and Additional InterestLiquidated Damages thereon, if any, to the date of purchasepurchase (if after the Full Accretion Date); provided, and will however, that if at any time any non-cash consideration (including any Designated Noncash Consideration) received by the Company or any Restricted Subsidiary of the Company, as the case may be, in connection with any Asset Sale is converted into or sold or otherwise disposed of for cash (other than interest received with respect to any such non-cash consideration), then such conversion or disposition shall be payable in cash. If any Excess Proceeds remain after consummation of deemed to constitute an Asset Sale Offerhereunder and the Net Cash Proceeds thereof shall be applied in accordance with this covenant. Notwithstanding the foregoing, if a Net Proceeds Offer Amount is less than $10.0 million, the application of the Net Cash Proceeds constituting such Net Proceeds Offer Amount to a Net Proceeds Offer may be deferred until such time as such Net Proceeds Offer Amount plus the aggregate amount of all Net Proceeds Offer Amounts arising subsequent to the Net Proceeds Offer Trigger Date relating to such initial Net Proceeds Offer Amount from all Asset Sales by the Company and its Restricted Subsidiaries aggregates at least $10.0 million, at which time the Company or such Restricted Subsidiary shall apply all Net Cash Proceeds constituting all Net Proceeds Offer Amounts that have been so deferred to make a Net Proceeds Offer (the first date the aggregate of all such deferred Net Proceeds Offer Amounts is equal to $10.0 million or more shall be deemed to be a "Net Proceeds Offer Trigger Date"). Notwithstanding the two immediately preceding paragraphs, the Company may use those Excess Proceeds and its Restricted Subsidiaries will be permitted to consummate an Asset Sale without complying with such paragraphs to the extent (i) at least 75% of the consideration for any purpose not otherwise prohibited by this Indenture. If the aggregate principal amount of Notes and other pari passu Indebtedness tendered into such Asset Sale Offer exceeds the amount of Excess Proceedsconstitutes Productive Assets, the Trustee shall select the Notes cash, Cash Equivalents and/or Marketable Securities and (ii) such other pari passu Indebtedness to be purchased on a pro rata basis based on the principal amount of Notes and such other pari passu Indebtedness tendered. Upon completion of each Asset Sale Offer, is for fair market value (as determined in good faith by the amount Company's Board of Excess Proceeds will be reset at zero. The Directors); provided that any consideration not constituting Productive Assets received by the Company shall comply with the requirements or any of Rule 14e-1 under the Exchange Act and any other securities laws and regulations thereunder to the extent those laws and regulations are applicable its Restricted Subsidiaries in connection with each repurchase of Notes pursuant to an any Asset Sale Offerpermitted to be consummated under this paragraph shall be subject to the provisions of the two preceding paragraphs. To the extent that the provisions of any securities laws or regulations conflict with the Asset Sale provisions of Section 3.09 or 4.10 of this Indenture, the Company shall comply with the applicable securities laws and regulations and shall not be deemed to have breached its obligations under those the Asset Sale provisions of this Indenture by virtue of such conflictthereof.
Appears in 1 contract
Sources: Indenture (Sealy Corp)
Asset Sales. The Company shall not, and shall not permit any of its Restricted Subsidiaries to, directly or indirectly, consummate an Asset Sale unless:
unless (1i) the Company (or the such Restricted Subsidiary, as the case may be) receives consideration at the time of the such Asset Sale at least equal to the fair market value (evidenced by a resolution of the Board of Directors of the Company and as set forth in an Officers' Certificate delivered to the Trustee) of the assets or Equity Interests issued or sold or otherwise disposed of;
of and (2) 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; and
(3ii) at least 75% of the consideration therefor received in the Asset Sale by the Company or such Restricted Subsidiary Subsidiary, as the case may be, from such Asset Sale is in the form of cash. For purposes ; provided that the amount of this provision, each of the following will be deemed to be cash:
(ax) any liabilities, liabilities (as shown on the Company's or such Restricted Subsidiary's most recent balance sheet), of the Company or any Restricted Subsidiary (other than contingent liabilities and liabilities that are by their terms subordinated to the Notes or any Subsidiary GuaranteeGuarantee thereof) that are assumed by the transferee of any such assets pursuant to a customary novation agreement that expressly releases the Company or 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 within 30 days by the Company or such Restricted Subsidiary into cash, cash (to the extent of the cash received in that conversion; and
(creceived) any payment shall be deemed to be cash for purposes of Senior Debt secured by the assets sold in the Asset Salethis provision. Within 365 360 days after the receipt of any Net Proceeds from an Asset Sale, the Company may apply those such Net Proceeds Proceeds, at its option:
, (1a) to repay permanently reduce any Senior Debt and, if of the Senior Debt repaid is revolving credit Indebtedness, Company (and to correspondingly reduce commitments with respect thereto;
thereto in the case of revolving borrowings), or (2b) to acquire all the acquisition of a controlling interest in another business, the making of a capital expenditure or substantially all the acquisition of the assets of, or a majority of the Voting Stock of, another Permitted Business;
(3) to make capital expenditures;
(4) to acquire other long-term assets that are used or useful assets, in a Permitted Business; or
(5) for any combination each case, in the same line of clauses (1) through (4) abovebusiness as the Company was engaged in on the date of this Indenture. Pending the final application of any such Net Proceeds, the Company may temporarily reduce revolving credit borrowings or otherwise invest the such Net Proceeds in any manner that is not prohibited by this Indenture. Any Net Proceeds from Asset Sales that are not applied or invested as provided in the preceding first sentence of this paragraph will be deemed to constitute "Excess Proceeds." When the aggregate amount of Excess Proceeds exceeds $5.0 million within five business days thereof, the Company will shall make an Asset Sale Offer to all Holders of Notes and all holders of other Indebtedness that is pari passu with the Notes containing provisions similar to those set forth in this Indenture with respect to offers to purchase or redeem with the proceeds of sales of assets in accordance with Section 3.09 hereof to purchase the maximum principal amount of Notes and such other pari passu Indebtedness that may be purchased out of the Excess Proceeds. The , at an offer price in any Asset Sale Offer will be cash in an amount equal to 100% of the principal amount thereof plus accrued and unpaid interest and Additional Interest, if anythereon, to the date of purchase, and will be payable in cashaccordance with the procedures set forth in Section 3.10 of this Indenture. If any Excess Proceeds remain after consummation To the extent that the aggregate amount of Notes tendered pursuant to an Asset Sale OfferOffer is less than the Excess Proceeds, the Company may use those any remaining Excess Proceeds for any purpose not otherwise prohibited by this Indenturegeneral corporate purposes. If the aggregate principal amount of Notes and other pari passu Indebtedness tendered into such Asset Sale Offer surrendered by Holders thereof exceeds the amount of Excess Proceeds, the Trustee shall select the Notes and such other pari passu Indebtedness to be purchased on a pro rata basis based on the principal amount of Notes and such other pari passu Indebtedness tenderedbasis. Upon completion of each Asset Sale Offersuch offer to purchase, the amount of Excess Proceeds will shall be reset at zero. The Company shall comply with the requirements of Rule 14e-1 under the Exchange Act and any other securities laws and regulations thereunder to the extent those laws and regulations are applicable in connection with each repurchase of Notes pursuant to an Asset Sale Offer. To Offer must be commenced within 30 days following the extent that date on which the provisions aggregate amount of any securities laws or regulations conflict with the provisions of Section 3.09 or 4.10 of this Indenture, the Company shall comply with the Excess Proceeds exceeds $5.0 million and remain open for at least 30 and not more than 40 days (unless otherwise required by applicable securities laws and regulations and shall not be deemed to have breached its obligations under those provisions of this Indenture by virtue of such conflictlaw).
Appears in 1 contract
Sources: Indenture (Baker J Inc)
Asset Sales. The (a) Neither the Company shall not, and shall 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 such Asset Sale at least equal to the fair market value Fair Market Value of the assets sold, leased, conveyed or otherwise disposed of or of the Equity Interests issued or sold or otherwise disposed ofsold;
(2ii) the fair market value such Fair Market Value 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
(3iii) at least 75% of the consideration therefor received in the Asset Sale by the Company or such its Restricted Subsidiary is in the form of cashcash or Cash Equivalents. For purposes of clause (iii) of this provisionparagraph (a), each of the following will be deemed are considered to be cash:
(a) : any liabilities, as shown on the Company's or such Restricted Subsidiary's most recent balance sheet, of the Company or any such Restricted Subsidiary (Subsidiary, other than contingent liabilities and liabilities that are by their terms subordinated to the Notes or any Subsidiary Note Guarantee) , that are assumed by the transferee of any such assets or Equity Interests pursuant to a customary novation agreement that releases the Company or 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 contemporaneously, subject to ordinary settlement periods, converted within 30 days by the Company or such Restricted Subsidiary into cash, to the extent of the cash received in that conversion; and.
(cb) any payment of Senior Debt secured by the assets sold in the Asset Sale. Within 365 360 days after the receipt of any Net Proceeds from an Asset Sale, the Company or any Restricted Subsidiary may apply those the Net Proceeds Proceeds, at its option:,
(1i) to repay Senior Debt and, if the Senior Debt repaid is revolving credit Indebtedness, to correspondingly reduce commitments with respect theretoDebt;
(2ii) to acquire all or substantially all of the assets of, or a majority all of the Voting Stock of, another Permitted BusinessBusiness which becomes part of, or which is or becomes, a Restricted Subsidiary of the Company;
(3iii) to make one or more capital expenditures;expenditures in assets that are used or useful in a Permitted Business; or
(4iv) to acquire other long-term assets that are used or useful in a Permitted Business; or
(5) for any combination of clauses (1) through (4) above. Pending the final application of any such Net Proceeds, the Company may temporarily reduce revolving credit borrowings or otherwise invest the such Net Proceeds in any manner that is not prohibited by this Indenture. .
(c) Any Net Proceeds from Asset Sales that are not applied or invested as provided in the preceding paragraph will (b) of this Section 4.10 shall be deemed to constitute "Excess Proceeds." When the aggregate amount of Excess Proceeds exceeds is greater than $5.0 million within five business days thereof10.0 million, the Company will shall be required to make an Asset Sale Offer offer to all Holders holders of Notes and all holders of other Indebtedness that is pari passu equal in right of payment with the Notes containing provisions similar to those set forth in this Indenture with respect to offers to purchase or redeem the Indebtedness with the proceeds of sales of assets in accordance with Section 3.09 hereof (an "Asset Sale Offer") to purchase the maximum aggregate principal amount of Notes and such other pari passu Indebtedness that is equal in right of payment that may be purchased out of the Excess Proceeds. The offer price in any Asset Sale Offer will be equal to 100% of the aggregate principal amount amount, plus accrued and unpaid interest and Additional Interestinterest, if any, to the date of purchase, as applicable, and will be payable in cash. If any Excess Proceeds remain after consummation of an Asset Sale Offer, the Company may use those such Excess Proceeds for any purpose not otherwise prohibited by this Indenture. If the aggregate principal amount of Notes and such other pari passu Indebtedness tendered into such Asset Sale Offer exceeds the amount of Excess Proceeds, the Trustee shall select the Notes and such other pari passu Indebtedness that is equal in right of payment to be purchased pursuant to Section 3.9 on a pro rata basis based on basis, by lot or by such method as the principal amount of Notes Trustee shall deem fair and such other pari passu Indebtedness tenderedappropriate. Upon completion of each an Asset Sale Offer, the amount of Excess Proceeds will shall be reset at zero. .
(d) The Company shall will comply with the requirements of Rule 14e-1 under the Exchange Act and any other securities laws and regulations thereunder to the extent those 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 Section 3.09 or 4.10 of this IndentureIndenture relating to Asset Sales, the Company shall comply with the applicable securities laws provisions of such rule and regulations and shall not be deemed not to have breached its obligations under those relating to such Asset Sale provisions of this Indenture by virtue of such conflict.
Appears in 1 contract
Sources: Indenture (Horizon PCS Inc)
Asset Sales. The Company shall not, and 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 of the assets or Equity Interests issued or sold or otherwise disposed of;
(2ii) the with respect to an Asset Sale involving consideration in excess of $5.0 million, 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
(3iii) at least 75% of the consideration therefor received in the Asset Sale by the Company or such Restricted Subsidiary is in the form of cash. For purposes of this provision, each of the following will shall be deemed to be cash:
(a) any liabilities, liabilities (as shown on the Company's or such Restricted Subsidiary's most recent balance sheet), of the Company or any Restricted Subsidiary (other than contingent liabilities and liabilities that are by their terms subordinated to the Notes or any Subsidiary Guarantee) that are assumed by the transferee of any such assets pursuant to a customary novation agreement that releases the Company or such Restricted Subsidiary from further liability;; and
(b) any securities, notes or other obligations received by the Company or any such Restricted Subsidiary from such transferee that are contemporaneously (subject to ordinary settlement periods) converted within 30 days by the Company or such Restricted Subsidiary into cash, cash (to the extent of the cash received in that conversion; and
(c) any payment of Senior Debt secured by the assets sold in the Asset Sale). Within 365 days after the receipt of any Net Proceeds from an Asset Sale, the Company may apply those such Net Proceeds at its option:
(1) to repay Senior Debt and, if the Senior Debt repaid is revolving credit Indebtedness, to correspondingly reduce commitments with respect thereto;
(2) to acquire all or substantially all of the assets of, or a majority of the Voting Stock of, another Permitted BusinessBusiness as long as such Person becomes a Restricted Subsidiary;
(3) to make a capital expenditures;expenditure; or
(4) to acquire other long-term assets that are used or useful in a Permitted Business; or
(5) for any combination of clauses (1) through (4) above. Pending the final application of any Net Proceeds, the Company may temporarily reduce revolving credit borrowings or otherwise invest the Net Proceeds in any manner that is not prohibited by this Indenture. Any Net Proceeds from Asset Sales that are not applied or invested as provided in the preceding paragraph will constitute "Excess Proceeds." When the aggregate amount of Excess Proceeds exceeds $5.0 million within five business days thereof, the Company will make an Asset Sale Offer to all Holders of Notes and all holders of other Indebtedness that is pari passu with the Notes containing provisions similar to those set forth in this Indenture with respect to offers to purchase or redeem with the proceeds of sales of assets in accordance with Section 3.09 hereof to purchase the maximum principal amount of Notes and such other pari passu Indebtedness that may be purchased out of the Excess Proceeds. The offer price in any Asset Sale Offer will be equal to 100% of principal amount plus accrued and unpaid interest and Additional Interest, if any, to the date of purchase, and will be payable in cash. If any Excess Proceeds remain after consummation of an Asset Sale Offer, the Company may use those Excess Proceeds for any purpose not otherwise prohibited by this Indenture. If the aggregate principal amount of Notes and other pari passu Indebtedness tendered into such Asset Sale Offer exceeds the amount of Excess Proceeds, the Trustee shall select the Notes and such other pari passu Indebtedness to be purchased on a pro rata basis based on the principal amount of Notes and such other pari passu Indebtedness tendered. Upon completion of each Asset Sale Offer, the amount of Excess Proceeds will be reset at zero. The Company shall comply with the requirements of Rule 14e-1 under the Exchange Act and any other securities laws and regulations thereunder to the extent 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 4.10 of this Indenture, the Company shall comply with the applicable securities laws and regulations and shall not be deemed to have breached its obligations under those provisions of this Indenture by virtue of such conflict.
Appears in 1 contract
Asset Sales. The Company shall will not, and shall will not permit any of its the Company’s Restricted Subsidiaries to, consummate an Asset Sale unless:
(1) the Company (or the Restricted Subsidiary, as the case may be) receives consideration at the time of the Asset Sale at least equal to the fair market value Fair Market Value of the assets or Equity Interests issued or sold or otherwise disposed of;
(2) 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; and
(32) at least 75% of the consideration received in the Asset Sale by the Company or such Restricted Subsidiary is in the form of cashcash or Cash Equivalents. For purposes of this provision, each of the following will be deemed to be cash:
(a) any liabilities, as shown on the Company's or such Restricted Subsidiary's most recent consolidated balance sheet, of the Company or any Restricted Subsidiary (other than contingent liabilities and liabilities that are by their terms subordinated to the Notes Notes, any Guarantee or any Subsidiary Guaranteethe Proceeds Loan) that are assumed by the transferee of any such assets pursuant to a customary novation agreement that releases the Company or such Restricted Subsidiary from further liability;liability in respect of those liabilities; and
(b) 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 such Restricted Subsidiary into cashcash or Cash Equivalents within 60 days, to the extent of the cash or Cash Equivalents received in that conversion; and
(c) any payment of Senior Debt secured by the assets sold in the Asset Sale. Within 365 days after the receipt of any Net Proceeds from an Asset SaleSale to be applied as set out in this paragraph, the Company (or the applicable Restricted Subsidiary, as the case may be) may apply those Net Proceeds Proceeds, at its option:
(1) to repay Senior Debt and, if the Senior Debt repaid is revolving credit Indebtedness, to correspondingly reduce commitments with respect thereto;
(2) to acquire all or substantially all of the assets of, or any Share Capital of, a majority Permitted Business if, after giving effect to any such acquisition of Share Capital, the Permitted Business is or becomes a Restricted Subsidiary of the Voting Stock of, another Permitted BusinessCompany;
(2) to make a capital expenditure; or
(3) to make capital expenditures;
(4) to acquire other long-term assets that are not classified as current assets under GAAP and that are used or useful in a Permitted Business; or
(5) for any combination of clauses (1) through (4) above. Pending the final application of any Net Proceeds, the Company may temporarily reduce revolving credit borrowings or otherwise invest the Net Proceeds in any manner that is not prohibited by this Indenture. Any Net Proceeds from Asset Sales that are not applied or invested as provided in the preceding paragraph will constitute "“Excess Proceeds." When ”. On the 366th day after an Asset Sale, if the aggregate amount of Excess Proceeds exceeds $5.0 million within five business days thereof10.0 million, the Company will make an Asset Sale Offer to all Holders of Notes and all holders of other Indebtedness that is pari passu with the Notes containing provisions similar to those set forth in this Indenture with respect to offers to purchase or redeem with the proceeds of sales of assets in accordance with Section 3.09 hereof to purchase the maximum principal amount of Notes and such other pari passu Indebtedness that may be purchased out of the Excess Proceeds. The offer price in any Asset Sale Offer will be equal to 100% of principal amount plus accrued and unpaid interest and Additional InterestAmounts, if any, to the date of purchase, and will be payable in cash. If any Excess Proceeds remain after consummation of an Asset Sale Offer, the Company and its Restricted Subsidiaries may use those Excess Proceeds for any purpose not otherwise prohibited by this Indenture. If the aggregate principal amount of Notes and other pari passu Indebtedness tendered into such Asset Sale Offer exceeds the amount of Excess Proceeds, the Trustee shall will select the Notes and such other pari passu Indebtedness to be purchased on a pro rata basis based on the principal amount provided that Notes of Notes €50,000 or less may only be purchased in whole and such other pari passu Indebtedness tenderednot in part. Upon completion of each Asset Sale Offer, the amount of Excess Proceeds will be reset at zero. Upon the commencement of an Asset Sale Offer, the Company shall send, by first class mail or its equivalent, a notice to the Trustee and each of the Holders. 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 4.12 (Asset Sales) and the length of time the Asset Sale Offer shall remain open;
(b) the Offer Amount, the purchase price and the Purchase Date;
(c) that any Note not tendered or accepted for payment shall continue to accrue interest;
(d) that, unless the Company defaults in making such payment, any Note accepted for payment pursuant to the Asset Sale Offer shall cease to accrue interest after the Purchase Date;
(e) that Holders electing to have a Note purchased pursuant to an Asset Sale Offer may elect to have Notes purchased in integral multiples of €1,000 only;
(f) that Holders electing to have a Note purchased pursuant to any Asset Sale Offer shall be required to surrender the Note, with the form entitled “Option of Holder to Elect Purchase” on the reverse of the Note completed, or transfer by book-entry transfer, to the Company, a depositary, if appointed by the Company, or a Paying Agent at the address specified in the notice at least three days before the Purchase Date;
(g) that Holders 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;
(h) that, if the aggregate principal amount of Notes surrendered by Holders exceeds the Offer Amount, the Company shall select the Notes to be purchased on a pro rata basis (with such adjustments as may be deemed appropriate by the Company so that only Notes in denominations of €1,000 or integral multiples thereof, shall be purchased); and
(i) that Holders whose Notes were purchased only in part shall be issued new Notes equal in principal amount to the 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 or portions thereof tendered pursuant to the Asset Sale Offer, or if less than the Offer Amount has been tendered, all Notes tendered, and shall deliver to the Trustee an Officers’ Certificate stating that such Notes or portions thereof were accepted for payment by the Company in accordance with the terms of this Section 4.12 (Asset Sales). 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 procure that the Authenticating Agent authenticate and the Trustee shall mail or deliver such new Note to such Holder, in a principal amount equal to any unpurchased portion of the Note surrendered. Any Note not so accepted shall be promptly mailed or delivered by the Company to the Holder thereof. The Company shall publicly announce the results of the Asset Sale Offer on the Purchase Date. 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 stock exchange rules, to the extent those laws laws, regulations and regulations rules 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 or securities or investment exchange rules conflict with the Asset Sale provisions of Section 3.09 or 4.10 of this Indenture, the Company shall will comply with the applicable securities laws and laws, regulations and shall rules and will not be deemed to have breached its obligations under those the Asset Sale provisions of this Indenture by virtue of such conflict.
Appears in 1 contract
Sources: Guarantee Agreement (Central European Distribution Corp)
Asset Sales. The Company shall not, and shall not permit any of its Restricted Subsidiaries Subsidiary 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 Fair Market Value of the assets or Equity Interests issued or sold or otherwise disposed of;
; and (2ii) 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 except with respect to the Trustee; and
(3) Designated Assets, at least 75% of the consideration therefor received in the Asset Sale by the Company or such Restricted Subsidiary is in the form of cashcash or Cash Equivalents. For Only for purposes of this provision, each of the following will shall be deemed to be cash:
: (aA) any liabilities, liabilities (as shown on the Company's or such Restricted Subsidiary's most recent balance sheet, ) of the Company or any Restricted Subsidiary (other than contingent liabilities and liabilities that are by their terms subordinated to the Notes or any Subsidiary GuaranteeNotes) that are assumed by the transferee of any such assets pursuant to a customary novation agreement that releases the Company or such Restricted Subsidiary from further liability;
; and (bB) any securities, notes or other obligations received by the Company or any such Restricted Subsidiary from such transferee that are contemporaneously (subject to ordinary settlement periods) converted within 30 days by the Company or such Restricted Subsidiary into cash, cash (to the extent of the cash received in that conversion; and
(c) any payment of Senior Debt secured by the assets sold in the Asset Sale). Within 365 days after the receipt of any Net Proceeds from an Asset Sale, the Company may apply those such Net Proceeds at its option:
Proceeds: (1i) to repay Senior Debt Indebtedness which ranks equally with the Notes under a Credit Facility and, if the Senior Debt Indebtedness repaid is revolving credit Indebtedness, to correspondingly reduce commitments with respect thereto;
; (2ii) to acquire all or substantially all of the assets of, or a majority of the Voting Stock of, another Permitted Business;
; (3iii) to make a capital expenditures;
expenditure in a Permitted Business; or (4iv) to acquire other long-term assets that are used or useful in a Permitted Business; or
(5) for any combination of clauses (1) through (4) above. Pending the final application of any such Net Proceeds, the Company may temporarily reduce revolving credit borrowings or otherwise invest the such Net Proceeds in any manner that is not prohibited by this Indenturehereby. Any Net Proceeds from Asset Sales that are not applied or invested as provided in the preceding paragraph will constitute "Excess Proceeds." When the aggregate amount of Excess Proceeds exceeds $5.0 million within five business days thereof20.0 million, the Company will shall make an offer (an "Asset Sale Offer Offer") to all Holders of Notes and all holders of other Indebtedness that is pari passu with the Notes containing provisions similar to those set forth in this Supplemental Indenture with respect to offers to purchase or redeem with the proceeds of sales of assets in accordance with Section 3.09 hereof to purchase the maximum principal amount of Notes and such other pari passu Indebtedness that may be purchased out of the Excess Proceeds. The offer price in any Asset Sale Offer will be equal to 100% of principal amount plus accrued and unpaid interest and Additional Interest, if any, to the date of purchase, and will be payable in cash. If any Excess Proceeds remain after consummation of an Asset Sale Offer, the Company may use those such Excess Proceeds for any purpose not otherwise prohibited by this Indenturehereby. If the aggregate principal amount of Notes and such other pari passu Indebtedness tendered into such Asset Sale Offer exceeds the amount of Excess Proceeds, the Trustee shall select the Notes and such other pari passu Indebtedness to be purchased on a pro rata basis based on the principal amount of Notes and such other pari passu Indebtedness tendered. Upon completion of each Asset Sale Offer, the amount of Excess Proceeds will shall be reset at zero. The Company shall comply with the requirements of Rule 14e-1 under the Exchange Act and any other securities laws and regulations thereunder to the extent those such laws and regulations are applicable in connection with each repurchase of Notes pursuant to an Asset Sale Offer. To the extent that the provisions of any securities laws or regulations conflict with the provisions of Section 3.09 or 4.10 1.01(15)(a) of this Supplemental Indenture, the Company shall comply with the applicable securities laws and regulations and shall not be deemed to have breached its obligations under those provisions of this Supplemental Indenture by virtue of such conflict.
Appears in 1 contract
Asset Sales. The Company shall not, and shall not permit any of its Restricted Subsidiaries to, consummate an Asset Sale unless:: 52
(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 of the assets or Equity Interests issued or issued, sold or otherwise disposed of;
(2) the 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
(3) at least 75% of the consideration therefor received in the Asset Sale by the Company or such Restricted Subsidiary is in the form of cash. For the purposes of this provisionSection 4.10, each of the following will shall be deemed to be cash:
(a) any liabilities, liabilities (as shown on the Company's or such Restricted Subsidiary's most recent balance sheet, ) of the Company or any Restricted Subsidiary (other than contingent liabilities and liabilities that are by their terms subordinated to the Notes or any Subsidiary Guarantee) that are assumed by the transferee of any such assets pursuant to a customary written novation agreement that releases the Company or such Restricted Subsidiary from further liability;; and
(b) any securities, notes or other obligations received by the Company or any such Restricted Subsidiary from such transferee that are converted promptly, but in any event within than 30 days of receipt, converted by the Company or such Restricted Subsidiary into cash, cash (to the extent of the cash received in that conversion; and
(c) any payment of Senior Debt secured by the assets sold in the Asset Sale). Within 365 days after the receipt of any Net Proceeds from an Asset Sale, the Company may apply those such Net Proceeds at its option:
: (1i) to repay Senior Debt and, if the Senior Debt repaid is revolving credit Indebtedness, to Indebtedness under the Credit Agreement and correspondingly reduce commitments with respect thereto;
; (2ii) to acquire all or substantially all of the assets of, or a majority of the Voting Stock of, another Permitted Business;
; (3iii) to make a capital expenditures;
expenditure in or that is used or useful in a Permitted Business; or (4iv) to acquire other long-term assets in or that are used or useful in a Permitted Business; or
(5) for any combination of clauses (1) through (4) above. Pending the final application of any such Net Proceeds, the Company may temporarily reduce revolving credit borrowings or otherwise invest the such Net Proceeds in any manner that is not prohibited by this Indenture. Any Net Proceeds from Asset Sales that are not applied or invested as provided in the preceding paragraph will constitute "Excess ProceedsEXCESS PROCEEDS." When the aggregate amount of Excess Proceeds exceeds $5.0 million within five business days thereofmillion, the Company will make an Asset Sale Offer offer to purchase (an "ASSET SALE OFFER") to all Holders of Notes and all holders of other Indebtedness that is pari passu PARI PASSU with the Notes containing provisions similar to those set forth in this Indenture with respect to offers to purchase or redeem with the proceeds of sales of assets in accordance with Section 3.09 hereof to purchase the maximum principal amount of Notes and such other pari passu PARI PASSU Indebtedness that may be purchased out of the Excess Proceeds. The offer price in any Asset Sale Offer will be equal to 100% of principal amount plus accrued and unpaid interest and Additional InterestLiquidated Damages, if any, to the date of purchase, and will be payable in cash. If any Excess Proceeds remain after consummation of an Asset Sale Offer, the Company may use those such Excess Proceeds for any purpose not otherwise prohibited by this Indenture. If the aggregate principal amount of Notes and such other pari passu PARI PASSU Indebtedness tendered into such Asset Sale Offer exceeds the amount of Excess Proceeds, the Trustee shall select the Notes and such other pari passu PARI PASSU Indebtedness to be purchased on a pro rata basis based on the principal amount of Notes and such other pari passu PARI PASSU Indebtedness tendered. Upon completion of each Asset Sale Offer, the amount of Excess Proceeds will shall be reset at zero. The Company shall will comply with the requirements of Rule 14e-1 under the Exchange Act and any other securities laws and regulations thereunder to the extent those 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 Section 3.09 or 4.10 of this Indenture, the Company shall will comply with the applicable securities laws and regulations and shall will not be deemed to have breached its obligations under those the Asset Sale provisions of this Indenture by virtue of such conflict.
Appears in 1 contract
Sources: Indenture (Wdra Food Service Inc)
Asset Sales. The Company shall not, and 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 that Asset Sale at least equal to the fair market value 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 set forth in an Officers' Certificate delivered to the Trustee; and
(32) at least 75% of the consideration therefor received in the Asset Sale by the Company or such the Restricted Subsidiary is in the form of:
(a) cash or Cash Equivalents; or
(b) property or assets that are used or useful in a Permitted Business, or the Capital Stock of cashany Person engaged in a Permitted Business if, as a result of the acquisition by the Company or any Restricted Subsidiary thereof, that Person becomes a Restricted Subsidiary. For the purposes of this provisionSection 4.10(2), each of the following will shall be deemed to be cash:
(ai) any liabilities, as shown on the Company's ’s or such the Restricted Subsidiary's ’s most recent balance sheet, of the Company or any Restricted Subsidiary (other than contingent liabilities and liabilities that are by their terms subordinated to the Notes or any Subsidiary GuaranteeNote Guarantee and any 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 such the Restricted Subsidiary from further liability;
(bii) any securities, notes or other obligations received by the Company or any such the Restricted Subsidiary from such the transferee that are converted within 30 days by the Company or such the Restricted Subsidiary into cashcash or Cash Equivalents within 180 days of their receipt by the Company of the Restricted Subsidiary, but only to the extent of the cash received in that conversionor Cash Equivalents received; and
(ciii) any payment of Senior Debt secured Designated Noncash Consideration received by the assets sold Company or any of its Restricted Subsidiaries in that 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 that time outstanding, not to exceed 15% of Total Assets at the time of the receipt of that Designated Noncash Consideration, with the fair market value of each item of Designated Noncash Consideration being measured at the time received and without giving effect to subsequent changes in value. The 75% limitation referred to in clause (2) above will not apply to any Asset SaleSale in which the cash or Cash Equivalents portion of the consideration received therefrom, determined in accordance with subclauses (i), (ii) and (iii) above, is equal to or greater than what the after-tax proceeds would have been had that Asset Sale complied with the aforementioned 75% limitation. Within 365 days 18 months after the receipt of any Net Proceeds from an Asset Sale, the Company or the Restricted Subsidiary, as the case may be, shall apply those the Net Proceeds, at its option (or to the extent the Company is required to apply the Net Proceeds at its optionpursuant to the terms of the Credit Agreement), to:
(1) to repay or purchase Senior Debt andIndebtedness or Pari Passu Indebtedness of the Company or any Guarantor or Indebtedness of any Restricted Subsidiary that is not a Guarantor, as the case may be, provided that if the Senior Debt repaid is revolving credit Indebtedness, to correspondingly reduce commitments with respect thereto;Company shall so repay or purchase Pari Passu Indebtedness of the Company or a Guarantor,
(2a) to acquire all or substantially all of it shall ratably reduce Indebtedness under the assets of, or a majority of Notes by redeeming Notes if the Voting Stock of, another Permitted Business;
(3) to make capital expenditures;
(4) to acquire other long-term assets that Notes are used or useful in a Permitted Businessthen redeemable; or
(5b) for any combination of clauses (1) through (4) above. Pending the final application of any Net Proceeds, the Company may temporarily reduce revolving credit borrowings or otherwise invest shall make an offer, in accordance with the Net Proceeds in any manner that is not prohibited by this Indenture. Any Net Proceeds from Asset Sales that are not applied or invested as provided in the preceding paragraph will constitute "Excess Proceeds." When the aggregate amount of Excess Proceeds exceeds $5.0 million within five business days thereof, the Company will make procedures set forth below for an Asset Sale Offer Offer, to all Holders of Notes and all holders of other Indebtedness that is pari passu with the Notes containing provisions similar to those set forth in this Indenture with respect to offers to purchase or redeem with the proceeds of sales of assets in accordance with Section 3.09 hereof to at a purchase the maximum principal amount of Notes and such other pari passu Indebtedness that may be purchased out of the Excess Proceeds. The offer price in any Asset Sale Offer will be equal to 100% of the principal amount of the Notes, plus accrued and unpaid interest and Additional Interest, if any, thereon to the date of purchase, and will be payable in cash. If any Excess Proceeds remain after consummation of an Asset Sale Offer, the Company may use those Excess Proceeds for any purpose not otherwise prohibited by this Indenture. If the aggregate principal amount of Notes and other pari passu Indebtedness tendered into such Asset Sale Offer exceeds the amount of Excess Proceeds, the Trustee shall select the Notes and such other pari passu Indebtedness to that would otherwise be purchased on redeemed; or
(2) (a) make an investment in property, make a pro rata basis based on the principal amount of Notes and such other pari passu Indebtedness tendered. Upon completion of capital expenditure or acquire assets that, in each Asset Sale Offercase, the amount of Excess Proceeds will be reset at zero. The Company shall comply with the requirements of Rule 14e-1 under the Exchange Act and any other securities laws and regulations thereunder to the extent those laws and regulations are applicable used or useful 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 4.10 of this Indenture, the Company shall comply with the applicable securities laws and regulations and shall not be deemed to have breached its obligations under those provisions of this Indenture by virtue of such conflict.a Permitted Business; or
Appears in 1 contract
Asset Sales. The Company shall not, and 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 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
(3) at least 75% of the consideration received in the Asset Sale by the Company or such Restricted Subsidiary is in the form of cash. For purposes of this provisionclause (3) only, each of the following will be deemed to be cash:
(a) any liabilities, as shown on the Company's or such Restricted Subsidiary's most recent balance sheet, of the Company or any Restricted Subsidiary (other than contingent liabilities and liabilities that are by their terms subordinated to the Notes or any Subsidiary Note Guarantee) that are assumed by the transferee of any such assets pursuant to a customary novation agreement that releases the Company or such Restricted Subsidiary from further liability;
(b) any securities, notes or other obligations received by the Company or any such Restricted Subsidiary from such transferee that are converted within 30 90 days of the applicable Asset Sale by the Company or such Restricted Subsidiary into cashcash or Cash Equivalents, to the extent of the cash or Cash Equivalents 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; and
(cd) any payment 100% of Senior Debt secured the Indebtedness actually received by the Company as consideration for the sale or other disposition of an Unoccupied Facility. 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 the first paragraph of Section 4.09 hereof and (2) the Board of Directors of the Company determines that the fair market value of the assets sold received by the Company in the Asset SaleSwap is not less than the fair market value of 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 may apply those Net Proceeds at its optionProceeds:
(1) to repay Senior Debt permanently Indebtedness under a Credit Facility and, if the Senior Debt Indebtedness permanently repaid is revolving credit Indebtedness, to correspondingly reduce commitments with respect thereto;
(2) to acquire all or substantially all of the assets of, or a majority of the Voting Stock of, another Permitted Business;
(3) 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);
(4) to acquire other long-term assets that are used or useful in a Permitted Business; or
(5) with respect to the sale of the Northeast Ohio Correctional Facility in Youngstown, Ohio, the Company may use 50% of the Net Proceeds from such sale to repurchase, redeem or otherwise acquire or retire for any combination value shares of clauses (1) through (4) abovethe Company's Series B Preferred Stock. Pending the final application of any Net Proceeds, the Company may temporarily reduce revolving credit borrowings or otherwise invest the Net Proceeds in any manner that is not prohibited by this Indenture. 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 that are not applied or invested as provided in the preceding paragraph will shall constitute "Excess Proceeds." When Within five days of each date on which the aggregate amount of Excess Proceeds exceeds $5.0 million within five business days thereof15.0 million, the Company will shall make an Asset Sale Offer to all Holders of Notes and and, at the Company's option, all holders of other Indebtedness that is pari passu with the Notes containing provisions similar to those set forth in this Indenture with respect to offers to purchase or redeem with the proceeds of sales of assets in accordance with Section 3.09 hereof to purchase the maximum principal amount of Notes and such other pari passu Indebtedness that may be purchased out of the Excess Proceeds. The offer price in any Asset Sale Offer will shall be equal to 100% of principal amount plus accrued and unpaid interest and Additional InterestLiquidated Damages, if any, to the date of purchase, and will shall be payable in cash. If any Excess Proceeds remain after consummation of an Asset Sale Offer, the Company may use those Excess Proceeds for any purpose not otherwise prohibited by this Indenture. If the aggregate principal amount of Notes and other pari passu Indebtedness tendered into such Asset Sale Offer exceeds the amount of Excess Proceeds, the Trustee shall select the Notes and such other pari passu Indebtedness to be purchased on a pro rata basis based on the principal amount of Notes and such other pari passu Indebtedness tenderedbasis. Upon completion of each Asset Sale Offer, the amount of Excess Proceeds will shall be reset at zero. The Company shall comply with the requirements of Rule 14e-1 under the Exchange Act and any other securities laws and regulations thereunder to the extent 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 Section 3.09 or 4.10 of this Indenture, the Company shall comply with the applicable securities laws and regulations and shall not be deemed to have breached its obligations under those the Asset Sale provisions of this Indenture by virtue of such conflict.
Appears in 1 contract
Asset Sales. The Company shall not, and shall not permit Effect any of its Restricted Subsidiaries to, consummate an Asset Sale unlessexcept that the following shall be permitted:
(1a) disposition of used, worn out, obsolete or surplus property by any Company in the Company ordinary course of business and the abandonment or other disposition of Intellectual Property that is, in the reasonable judgment of the Designated Company, no longer economically practicable to maintain or useful in the conduct of the business of the Companies taken as a whole;
(b) so long as no Default is then continuing or would result therefrom, any other Asset Sale (other than the Equity Interests of any German Borrower Holding Company, or Wholly Owned Subsidiary, in each case that is a Restricted Subsidiary, as unless, after giving effect to any such Asset Sale, such person either ceases to be a Restricted Subsidiary or, in the case may beof an Excluded Guarantor Subsidiary, becomes a Joint Venture Subsidiary) receives consideration at the time of the Asset Sale at least equal to the for fair market value 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 set forth in an Officers' Certificate delivered to the Trustee; and
(3) value, with at least 75% of the consideration received for all such Asset Sales or related Asset Sales in which the Asset Sale by consideration received exceeds $50,000,000 payable in cash upon such sale (provided, however, that for the Company or such Restricted Subsidiary is in the form of cash. For purposes of this provisionclause (b), each of the following will shall be deemed to be cash:
: (ai) any liabilities, liabilities (as shown on the Designated Company's ’s most recent balance sheet provided hereunder or in the footnotes thereto) of the Designated Company or such Restricted Subsidiary's most recent balance sheet, of the Company or any Restricted Subsidiary (other than contingent liabilities and liabilities that are by their terms subordinated to the Notes or any Subsidiary Guarantee) payment in cash of the Obligations, that are assumed by the transferee with respect to the applicable Asset Sale and for which Holdings, the Designated Company and all of any such assets pursuant to a customary novation agreement that releases its Restricted Subsidiaries (and, on and after the Company or such Restricted Subsidiary from further liability;
Specified AV Minerals Joinder Date, AV Minerals) shall have been validly released by all applicable creditors in writing, (bii) any securities, notes or other obligations securities received by the Designated Company or any such the applicable Restricted Subsidiary from such transferee that are converted within 30 days by the Designated Company or such Restricted Subsidiary into cash, cash (to the extent of the cash received) within 180 days following the closing of the applicable Asset Sale, and (iii) aggregate non-cash consideration received in that conversion; andby the Designated Company or the applicable Restricted Subsidiary having an aggregate fair market value (determined as of the closing of the applicable Asset Sale for which such non-cash consideration is received) not to exceed $75,000,000 at any time (net of any non-cash consideration converted into cash));
(c) leases, subleases or licenses of the properties of any payment Company in the ordinary course of Senior Debt secured business and which do not, individually or in the aggregate, interfere in any material respect with the ordinary conduct of the business of any Company;
(d) mergers and consolidations, and liquidations and dissolutions in compliance with Section 6.05;
(e) sales, transfers and other dispositions of Receivables for the fair market value thereof in connection with a Permitted Factoring Facility; provided that no Default shall be outstanding after giving effect thereto and (A) with respect to any such sale, transfer or disposition of Receivables incurred by a Company that is organized in a Principal Jurisdiction, such transaction is a Permitted German Alternative Financing, Permitted Customer Account Financing or Permitted Novelis Switzerland Financing, (B) with respect to any such sale, transfer of disposition of Receivables incurred by a Company that is organized in a Non-Principal Jurisdiction, the sum of (w) the aggregate outstanding principal amount of the Indebtedness of all Securitization Entities that are organized in a Non-Principal Jurisdiction under all Qualified Securitization Transactions under Section 6.01(e), plus (x) the aggregate amount of Indebtedness incurred by a Subsidiary that is organized in a Non-Principal Jurisdiction then outstanding under 1104695.02A-CHISR01A - MSW Section 6.01(m), plus (y) the aggregate book value at the time of determination of the then outstanding Receivables of a Company that is organized in a Non-Principal Jurisdiction subject to a Permitted Factoring Facility pursuant to this Section 6.06(e) at such time, plus (z) the aggregate consideration received by a Company that is organized in a Non-Principal Jurisdiction for Asset Sales permitted under Section 6.06(r) (net of amounts paid by such Company to repurchase the Inventory subject to such Asset Sales) (but in each case excluding any Permitted German Alternative Financing, Permitted Novelis Switzerland Financing and any Permitted Customer Account Financing), shall not exceed the greater of (x) 15% of Consolidated Net Tangible Assets and (y) $750,000,000, and (C) with respect to any such sale, transfer or disposition of Receivables incurred by a Company that is organized in a Non-Loan Party Jurisdiction, the sum of (w) the aggregate outstanding principal amount of the Indebtedness of all Securitization Entities that are organized in a Non-Loan Party Jurisdiction under all Qualified Securitization Transactions under Section 6.01(e), plus (x) the aggregate amount of Indebtedness incurred by a Subsidiary that is organized in a Non-Loan Party Jurisdiction then outstanding under Section 6.01(m), plus (y) the aggregate book value at the time of determination of the then outstanding Receivables of a Company that is organized in a Non-Loan Party Jurisdiction subject to a Permitted Factoring Facility pursuant to this Section 6.06(e) at such time, plus (z) the aggregate consideration received by a Company that is organized in a Non-Loan Party Jurisdiction for Asset Sales permitted under Section 6.06(r) (net of amounts paid by such Company to repurchase the Inventory subject to such Asset Sales) (but in each case excluding any Permitted German Alternative Financing, any Permitted Novelis Switzerland Financing and any Permitted Customer Account Financing), shall not exceed the greater of (x) 15% of Consolidated Net Tangible Assets and (y) $750,000,000;
(f) the sale or disposition of cash and Cash Equivalents in connection with a transaction otherwise permitted under the terms of this Agreement;
(g) assignments and licenses of Intellectual Property of any Global Loan Party and its Subsidiaries in the ordinary course of business and which do not, individually or in the aggregate, interfere in any material respect with the ordinary conduct of the business of any Company;
(h) Asset Sales (i) by and among Unrestricted Grantors (other than Holdings and, on and after the Specified AV Minerals Joinder Date, AV Minerals), (ii) by any Restricted Grantor to any other Restricted Grantor, (iii) by any Restricted Grantor to any Unrestricted Grantor so long as the consideration paid by the Unrestricted Grantor in such Asset Sale does not exceed the fair market value of the property transferred, (iv) by (x) any Unrestricted Grantor to any Restricted Grantor for fair market value and (y) by any Global Loan Party to any Restricted Subsidiary that is not a Global Loan Party for fair market value provided that the fair market value of such Asset Sales under this clause (iv) does not exceed the greater of (1) $200,000,000 and (2) 4% of Consolidated Net Tangible Assets in the aggregate for all such Asset Sales since the Effective Date, (v) by any Company that is not a Global Loan Party to any Global Loan Party so long as the consideration paid by the Global Loan Party in such Asset Sale does not exceed the fair market value of the property transferred, and (vi) by and among Companies that are not Global Loan Parties; provided that no Default is then continuing or would result therefrom;
(i) the Companies may consummate Asset Swaps so long as (x) each such sale is in an arm’s-length transaction and the applicable Company receives at least fair market value consideration (as determined in good faith by such Company), and (y) the aggregate fair market 1104695.02A-CHISR01A - MSW value of all assets sold pursuant to this clause (i) shall not exceed the greater of (1) 2% of Consolidated Net Tangible Assets and (2) $100,000,000 in the aggregate since the Effective Date; provided that so long as the assets acquired by any Company pursuant to the respective Asset Swap are located in the same country as the assets sold by such Company, such aggregate cap will not apply to such Asset Swap;
(j) sales, transfers and other dispositions of Receivables (whether now existing or arising or acquired in the Asset Sale. Within 365 days after future) and Related Security to a Securitization Entity in connection with a Qualified Securitization Transaction permitted under Section 6.01(e) and all sales, transfers or other dispositions of Securitization Assets by a Securitization Entity under, and pursuant to, a Qualified Securitization Transaction permitted under Section 6.01(e);
(k) to the receipt of any Net Proceeds from extent constituting an Asset Sale, the Company may apply those Net Proceeds at its option:
(1) to repay Senior Debt and, if the Senior Debt repaid is revolving credit Indebtedness, to correspondingly reduce commitments with respect theretoPermitted Holdings Amalgamation;
(2l) to acquire all or substantially all issuances of the assets of, or a majority of the Voting Stock of, another Permitted BusinessEquity Interests by Joint Venture Subsidiaries and Excluded Guarantor Subsidiaries;
(3m) to make capital expendituresAsset Sales among Companies of promissory notes or Equity Interests or similar instruments issued by a Company; provided that such Asset Sales are part of a Series of Cash Neutral Transactions and no Default has occurred and is continuing;
(4n) the sale of Receivables made pursuant to the Receivables Purchase Agreement;
(o) to acquire the extent constituting an Asset Sale, Investments permitted by Section 6.04(i);
(p) issuances of Qualified Capital Stock (including by way of sales of treasury stock) or any options or warrants to purchase, or securities convertible into, any Qualified Capital Stock (A) for stock splits, stock dividends and additional issuances of Qualified Capital Stock which do not decrease the percentage ownership of the Global Loan Parties in any class of the Equity Interests of such issuing Company and (B) by Subsidiaries of the Designated Company formed after the Effective Date to the Designated Company or the Subsidiary of the Designated Company which is to own such Qualified Capital Stock;
(q) transfers of 100% of the Equity Interests of any Chinese Subsidiary or Korean Subsidiary of the Designated Company to a wholly-owned U.S. Loan Party; provided that no Default is then continuing or would result therefrom;
(r) sales, transfers and other longdispositions of Inventory in order to finance working capital; provided that no Default shall be outstanding after giving effect thereto and (A) with respect to any such sale, transfer of disposition by a Company that is organized in a Principal Jurisdiction, such transaction is a Permitted German Alternative Financing, (B) with respect to any such sale, transfer or disposition of Receivables incurred by a Company that is organized in a Non-term assets Principal Jurisdiction, the sum of (w) the aggregate outstanding principal amount of the Indebtedness of all Securitization Entities that are used or useful organized in a Non-Principal Jurisdiction under all Qualified Securitization Transactions under this Section 6.01(e), plus (x) the aggregate amount of Indebtedness incurred by a Subsidiary that is organized in a Non-Principal Jurisdiction then outstanding under Section 6.01(m), plus (y) the aggregate book value at the time of determination of the then outstanding Receivables of a Company that is organized in a Non-Principal Jurisdiction subject to a Permitted Business; orFactoring Facility pursuant to Section 6.06(e) at such 1104695.02A-CHISR01A - MSW time, plus (z) the aggregate consideration received by a Company that is organized in a Non-Principal Jurisdiction for Asset Sales permitted under this Section 6.06(r) (net of amounts paid by such Company to repurchase the Inventory subject to such Asset Sales) (but in each case excluding any Permitted German Alternative Financing, any Permitted Novelis Switzerland Financing and any Permitted Customer Account Financing), shall not exceed the greater of (x) 15% of Consolidated Net Tangible Assets and (y) $750,000,000, and (C) with respect to any such sale, transfer or disposition of Receivables incurred by a Company that is organized in a Non-Loan Party Jurisdiction, the sum of (w) the aggregate outstanding principal amount of the Indebtedness of all Securitization Entities that are organized in a Non-Loan Party Jurisdiction under all Qualified Securitization Transactions under this Section 6.01(e), plus (x) the aggregate amount of Indebtedness incurred by a Subsidiary that is organized in a Non-Loan Party Jurisdiction then outstanding under Section 6.01(m), plus (y) the aggregate book value at the time of determination of the then outstanding Receivables of a Company that is organized in a Non-Loan Party Jurisdiction subject to a Permitted Factoring Facility pursuant to Section 6.06(e) at such time, plus (z) the aggregate consideration received by a Company that is organized in a Non-Loan Party Jurisdiction for Asset Sales permitted under this Section 6.06(r) (net of amounts paid by such Company to repurchase the Inventory subject to such Asset Sales) (but in each case excluding any Permitted German Alternative Financing, any Permitted Novelis Switzerland Financing and any Permitted Customer Account Financing), shall not exceed the greater of (x) 15% of Consolidated Net Tangible Assets and (y) $750,000,000;
(5s) for any combination Asset Sales of clauses (1) through (4) above. Pending 100% of the final application Equity Interests of any Net ProceedsChinese Subsidiary of the Designated Company to a Chinese holding company that is a direct Wholly Owned Subsidiary of the Designated Company; provided that (i) such transaction is permitted pursuant to the Secured Term Loan Documents (and any Permitted Secured Term Loan Facility Refinancings) and (ii) no Default is then continuing or would result therefrom;
(t) any sale, lease transfer or other disposition in connection with any industrial revenue bond or similar program that does not result in the recognition of the sale or the asset transfer in accordance with GAAP, or any similar transaction;
(u) the Ulsan Share Sale;
(v) the NKL Share Repurchase;
(w) any Permitted Aleris Foreign Subsidiary Transfer; and
(x) to the extent constituting an Asset Sale, the Company may temporarily reduce revolving credit borrowings or otherwise invest Permitted Reorganization; provided that the Net Proceeds terms and conditions set forth in any manner that is not prohibited by this Indenture. Any Net Proceeds from Asset Sales that are not applied or invested the definition of Permitted Reorganization and, to the extent applicable, the definition of Permitted Reorganization Actions shall have been satisfied; provided, further, that, except as provided in the preceding paragraph will constitute "Excess Proceeds." When the aggregate amount of Excess Proceeds exceeds $5.0 million within five business days thereoffollowing proviso, the Company will make an Asset Sale Offer to all Holders of Notes and all holders of other Indebtedness that is pari passu with the Notes containing provisions similar to those set forth in this Indenture with respect to offers to purchase or redeem with the proceeds of sales of assets in accordance with Section 3.09 hereof to purchase the maximum principal amount of Notes and such other pari passu Indebtedness that may be purchased out of the Excess Proceeds. The offer price in any Asset Sale Offer will be equal to 100% of principal amount plus accrued and unpaid interest and Additional Interest, if any, to the date of purchase, and will be payable in cash. If any Excess Proceeds remain after consummation of an Asset Sale Offer, the Company may use those Excess Proceeds for any purpose not otherwise prohibited by this Indenture. If the aggregate principal amount of Notes and other pari passu Indebtedness tendered into such Asset Sale Offer exceeds the amount of Excess ProceedsSales involving (whether as consideration or otherwise) a loan or advance, the Trustee or that otherwise involves an Intercompany Note, shall select the Notes and such other pari passu Indebtedness to be purchased on a pro rata basis based on the principal amount of Notes and such other pari passu Indebtedness tendered. Upon completion of each Asset Sale Offer, the amount of Excess Proceeds will be reset at zero. The Company shall comply with the requirements of Rule 14e-1 under the Exchange Act and any other securities laws and regulations thereunder permitted solely to the extent those laws that such loan or advance is documented as an Intercompany Note, and regulations are applicable all Intercompany Notes in connection therewith shall be subordinated to the Guaranteed Obligations on terms reasonably satisfactory to the Administrative Agent; provided, further, that notwithstanding the foregoing, any requirement in this clause (x) that obligations among any Global Loan Parties and any of their Affiliates must be evidenced by an Intercompany Note or subordinated to the Obligations and the Guaranteed Obligations, in each case shall not apply if the Secured Term Loan Documents and Revolving 1104695.02A-CHISR01A - MSW Credit Loan Documents continue to be in effect during the term of this Agreement, and in any case shall not in any way limit the ability of any Global Loan Party to make any payments permitted or required to be made under the Secured Term Loan Documents and Revolving Credit Loan Documents to the extent such documents (or any replacements in connection with each repurchase of Notes pursuant any Permitted Refinancing thereof) continue to an Asset Sale Offer. To be in effect during the extent that the provisions of any securities laws or regulations conflict with the provisions of Section 3.09 or 4.10 term of this Indenture, the Company shall comply with the applicable securities laws and regulations and shall not be deemed to have breached its obligations under those provisions of this Indenture by virtue of such conflictAgreement.
Appears in 1 contract
Asset Sales. The Company shall not, and shall not permit any of its Restricted Subsidiaries to, consummate engage in an Asset Sale unlessunless each of the following requirements is satisfied:
(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 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 set forth in an Officers' Certificate delivered to the Trustee; and
(3ii) at least 75% of the consideration therefor received in the Asset Sale by the Company or such Restricted Subsidiary is in the form of cash. For purposes of this provision, each of cash and/or Marketable Securities; PROVIDED that the following will be deemed to be cash:amount of
(aA) any liabilities, liabilities (as shown on the Company's or such Restricted Subsidiary's most recent balance sheet, sheet or in the notes thereto) of the Company or any of its Restricted Subsidiary Subsidiaries (other than contingent liabilities and liabilities that are by their terms subordinated to the Notes or any Subsidiary Note Guarantee) that are assumed by the transferee Transferee of any such assets pursuant to a customary novation agreement that releases the Company or such Restricted Subsidiary from further liability;; and
(bB) any securities, notes or other obligations received by the Company or any such Restricted Subsidiary from such transferee Transferee that are contemporaneously (subject to ordinary settlement periods) converted within 30 days by the Company or such Restricted Subsidiary into cash, cash (to the extent of the cash received), shall be deemed to be cash for purposes of this provision; PROVIDED, FURTHER, that the 75% limitation referred to above shall not apply to any Transfer of assets in which the cash portion of the consideration received in therefor is equal to or greater than the after-tax net cash proceeds that conversionwould have been received by the Company had a transaction involving the same assets complied with the aforementioned 75% limitation but was not structured with the same tax benefits as the actual transaction; and
(ciii) any payment if such Asset Sale involves the Transfer of Senior Debt secured Collateral, it complies with the provisions described under Section 10.4, all consideration received in the form of cash or Marketable Securities shall be paid directly by the assets sold purchaser of such Collateral to the Trustee for deposit into the Collateral Account, and all consideration received in any other form shall be expressly made subject to the Asset SaleLien of this Indenture and the applicable Security Documents (and shall otherwise comply with the provisions of this Indenture applicable to After-Acquired Property). Within 365 367 days after the receipt of any Net Proceeds from an Asset Sale, the Company may apply those or such Restricted Subsidiary shall, subject to the following paragraph, cause such Net Proceeds at its optionto be applied as follows:
(1i) in the case of any Transfer of Collateral, to make an investment or expenditure for Replacement Assets, which shall be made subject to the Lien of this Indenture and the applicable Security Documents (and shall otherwise comply with the provisions of this Indenture applicable to After-Acquired Property); and
(ii) in all other cases:
(A) to repay Senior Debt and, if the Senior Debt repaid is revolving credit Indebtedness, to correspondingly reduce commitments with respect thereto;
(2) to acquire all or substantially all of the assets of, or a majority of the Voting Stock of, another Permitted Business;
(3) to make capital expenditures;
(4) to acquire other long-term assets that are used or useful in a Permitted BusinessIndebtedness outstanding under any Credit Agreement; or
(5B) to make an investment in or expenditure for any combination of clauses (1) through (4) above. Pending the final application of any Net Proceeds, the Company may temporarily reduce revolving credit borrowings or otherwise invest the Net Proceeds in any manner that is not prohibited by this IndentureReplacement Assets. Any Net Proceeds from Asset Sales that are not applied or invested as provided in the preceding paragraph will constitute shall be deemed to constitute, "Excess Proceeds." When the aggregate amount of Excess Proceeds exceeds $5.0 million within five business days thereof15.0 million, the Company will shall be required to make an Asset Sale Offer offer to all Holders of Notes and all holders of other Indebtedness that is pari passu with the Notes containing provisions similar to those set forth in this Indenture with respect to offers to purchase or redeem with the proceeds of sales of assets in accordance with Section 3.09 hereof (an "ASSET SALE OFFER") to purchase the maximum principal amount of Notes and such other pari passu Indebtedness that may be purchased out of the Excess Proceeds. The , at an offer price in any Asset Sale Offer will be cash in an amount equal to 100% of the principal amount thereof plus accrued and unpaid interest and Additional InterestLiquidated Damages, if any, thereon to the date of purchase, and will be payable in cashaccordance with the procedures set forth in Section 3.09 hereof. If any Excess Proceeds remain after consummation To the extent that the aggregate principal amount of Notes tendered pursuant to an Asset Sale OfferOffer is less than the Excess Proceeds, the Company or any Restricted Subsidiary may use those any remaining Excess Proceeds for any purpose not otherwise prohibited by under this Indenture; PROVIDED, HOWEVER, that to the extent that all or any portion of any remaining Excess Proceeds comprises proceeds of Asset Sales of Collateral, such Excess Proceeds shall remain subject to the Lien of this Indenture and the applicable Security Documents and shall remain on deposit in the Collateral Account. If the aggregate principal amount of Notes and other pari passu Indebtedness tendered into such Asset Sale Offer surrendered by Holders thereof exceeds the amount of Excess Proceeds, the Trustee shall select the Notes and such other pari passu Indebtedness to be purchased on a pro rata basis based on the principal amount of Notes and such other pari passu Indebtedness tenderedPRO RATA basis. Upon completion of each such Asset Sale Offer, the amount of Excess Proceeds will shall be reset at zero. Notwithstanding the three immediately preceding paragraphs, the Company and the Restricted Subsidiaries shall be permitted to consummate an Asset Sale without complying with such paragraphs to the extent
(i) at least 75% of the consideration received in connection with such Asset Sale constitutes Replacement Assets or a combination of Replacement Assets and cash;
(ii) such Asset Sale is for Fair Market Value (which, in the case, of any Replacement Assets the Fair Market Value of which exceeds $3.0 million, shall be evidenced by the opinion of a Financial Advisor); PROVIDED that any Net Proceeds in the form of cash received by the Company or any of its Restricted Subsidiaries in connection with any Asset Sale permitted to be consummated pursuant to this paragraph shall be subject to the provisions of the two immediately preceding paragraphs; and
(iii) if such Asset Sale involves the Transfer of Collateral, the Company and the Restricted Subsidiaries comply with clause (iii) of the first paragraph of this Section 4.10. -67- The Company shall comply with the requirements of Rule 14e-1 under the Exchange Act and any other securities laws and regulations thereunder to the extent those such laws and regulations are applicable in connection with each 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 3.09 or 4.10 of this Indenture4.10, the Company shall comply with the applicable securities laws and regulations and shall not be deemed to have breached its obligations under those provisions of this Indenture paragraph by virtue of such conflictthereof.
Appears in 1 contract
Asset Sales. (a) The Company shall not, and 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 (as determined in good faith by the Company) 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 set forth in an Officers' Certificate delivered to the Trustee; and
(3ii) 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 by the Company or any such Restricted Subsidiary, as the case may be, is in the Asset Sale form of cash or Cash Equivalents; provided that the amount of:
(A) any liabilities (as shown on the Company’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 such Restricted Subsidiary is in the form of cash. For purposes of this provision, each of the following will be deemed to be cash:
(a) any liabilities, as shown on the Company's or such Restricted Subsidiary's most recent balance sheet, of the Company or any Restricted Subsidiary (other than contingent liabilities Contingent Obligations and liabilities that are by their terms subordinated to the Notes or any Subsidiary Guarantee) that are assumed by the transferee of any such assets 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 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 within 30 days by the Company or such Restricted Subsidiary into cashcash 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,
(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 conversion; 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 payment Capital Stock or assets described in clauses (A) and (D) of Senior Debt secured by the assets sold in the Asset Sale. Section 4.10(b)(ii) hereof shall be deemed to be cash for purposes of this 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 may apply those Net Proceeds or such Restricted Subsidiary, at its option, may apply an amount equal to the Net Proceeds from such Asset Sale,
(i) to permanently reduce:
(1A) to repay Senior Debt and, if Obligations under the Notes or any other Pari Passu Indebtedness (including obligations under the Senior Debt repaid is revolving credit Indebtedness, 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
(2B) Indebtedness of a Non-Guarantor Subsidiary, other than Indebtedness owed to acquire all the Company or substantially all of the assets of, or a majority of the Voting Stock of, another Permitted Business;Restricted Subsidiary; or
(3ii) 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, owning an amount of the Capital Stock of such business such that it constitutes a Restricted Subsidiary, (B) acquire properties (other than working capital expenditures;
or Capital Stock), (4C) to make capital expenditures or (D) acquire other long-term assets that (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 Permitted BusinessSimilar 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; or
(5iii) for any combination of clauses the foregoing.
(1c) through (4) above. Pending the final application of any Net Proceeds, the Company may temporarily reduce revolving credit borrowings or otherwise invest the Net Proceeds in any manner that is not prohibited by this Indenture. Any Net Proceeds from an Asset Sales Sale that are not invested or applied or invested as provided and within the time period set forth in the preceding paragraph Section 4.10(a)(i) will be deemed to constitute "“Excess Proceeds." ” When the aggregate amount of Excess Proceeds exceeds $5.0 million within five business days thereof75.0 million, the Company will or any Restricted Subsidiary shall make an Asset Sale Offer offer to all Holders of Notes and all and, if required by the terms of any Pari Passu Indebtedness, to the holders of other such Pari Passu Indebtedness that is pari passu with the Notes containing provisions similar to those set forth in this Indenture with respect to offers to purchase or redeem with the proceeds of sales of assets in accordance with Section 3.09 hereof (an “Asset Sale Offer”) to purchase 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 pari passu Pari Passu Indebtedness that may be purchased out of the Excess Proceeds. The Proceeds at an offer price in any Asset Sale Offer will be cash in an amount equal to 100% of the principal amount thereof, plus accrued and unpaid interest and Additional Interestinterest, 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, and will be payable in cash. If any Excess Proceeds remain after consummation of accordance with the procedures set forth in this Indenture.
(d) The Issuers shall commence an Asset Sale Offer, the Company may use those Offer with respect to Excess Proceeds for any purpose not otherwise prohibited 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. If , with a copy to the Trustee.
(e) To the extent that the aggregate principal amount of Notes and other pari passu such Pari Passu Indebtedness tendered into such pursuant to an Asset Sale Offer is less than the Excess Proceeds, the Issuers may use any remaining Excess Proceeds for general corporate purposes, subject to clause (e) of this Section 4.10 and the other 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 other pari passu 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 principal amount (determined as set forth above) of the Notes and such other pari passu Pari Passu Indebtedness tenderedtendered 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 each any such Asset Sale Offer, the amount of Excess Proceeds will 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 Issuers shall comply with the requirements of Rule 14e-1 under the Exchange Act and any other securities laws and regulations thereunder to the extent those such laws and or regulations are applicable in connection with each 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 Section 3.09 or 4.10 of this Indenture, the Company Issuers shall comply with the applicable securities laws and regulations and shall not be deemed to have breached its obligations under those provisions of described in this Indenture by virtue of such conflictthereof.
Appears in 1 contract
Sources: Indenture (Uniti Group Inc.)
Asset Sales. The Company shall not, and shall not permit any of its Restricted Subsidiaries to, to consummate an Asset Sale unless:
Sale, unless (1i) the Company (or the Restricted Subsidiary, Subsidiary as the case may be) receives consideration at the time of the such Asset Sale at least equal to the fair market value of the assets or Equity Interests issued or sold or otherwise disposed of;
(2) the fair market value is as conclusively 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
) of the assets or Equity Interests issued or sold or otherwise disposed of and (3ii) except in the case of a sale of Specified Assets, at least 7580% of the consideration therefor received in the Asset Sale by the Company or such Restricted Subsidiary is in the form of cash. For ; PROVIDED, HOWEVER, that for purposes of this provision, each (x) the amount of the following will be deemed to be cash:
(a) any liabilities, liabilities (as shown on the Company's or such Restricted Subsidiary's most recent balance sheetsheet or in the notes thereto), of the Company or any Restricted Subsidiary (other than contingent liabilities and than, in the case of an Asset Sale by the Company, liabilities that are by their terms subordinated to the Notes or any Subsidiary Guarantee) Securities that are assumed by the transferee of any such assets pursuant to a customary novation agreement that releases the Company or such Restricted Subsidiary from further liability;
and (b) any securities, notes securities or other obligations received by the Company or any such Restricted Subsidiary from such transferee that are immediately converted within 30 days by the Company or such Restricted Subsidiary into cash (or as to which the Company or such Subsidiary has received at or prior to the consummation of the Asset Sale a commitment (which may be subject to customary conditions) from a nationally recognized investment, merchant or commercial bank to convert into cash within 90 days of the consummation of such Asset Sale and which are thereafter actually converted into cash within such 90-day period) shall be deemed to be cash (but shall not be deemed to be Net Proceeds for purposes of the following provisions until reduced to cash, ); and (y) the fair market value of any Non-Cash Consideration received by the Company or a Subsidiary in any Asset Sale shall be deemed to be cash (but shall not be deemed to be Net Proceeds for purposes of the following provisions until reduced to cash) to the extent that the aggregate fair market value (as conclusively determined by a resolution of the cash Board of Directors set forth in an Officers' Certificate delivered to the Trustee) of all Non-Cash Consideration (measured at the time received and without giving effect to any subsequent changes in that conversion; and
(cvalue) any payment of Senior Debt secured held by the assets sold in Company immediately after consummation of such Asset Sale does not exceed 10% of the Asset SaleCompany's Stockholders' Equity as of the date of such consummation. Within 365 465 days after the receipt of any Net Proceeds from an Asset Sale, the Company may apply those such Net Proceeds at its option:
(1i) to repay purchase one or more Hospitals or Related Businesses and/or a controlling interest in the Capital Stock of a Person owning one or more Hospitals and/or one or more Related Businesses, (ii) to make a capital expenditure or to acquire other tangible assets, in each case, that are used or useful in any business in which the Company is permitted to be engaged pursuant to Section 4.15 hereof, (iii) to permanently reduce Senior Term Debt andor Existing Indebtedness of a Subsidiary, if the (iv) to permanently reduce Senior Revolving Debt repaid is revolving credit Indebtedness, (and to correspondingly reduce commitments with respect thereto;
), except that up to an aggregate of $200.0 million of Net Proceeds from Asset Sales may be applied after the date hereof to reduce Senior Revolving Debt without a corresponding reduction in commitments with respect thereto, or (2v) to acquire all repurchase Senior Notes or substantially all of the assets of, redeem or a majority of the Voting Stock of, another Permitted Business;
(3) to make capital expenditures;
(4) to acquire repurchase other long-term assets that are used or useful in a Permitted Business; or
(5) for any combination of clauses (1) through (4) aboveSenior Debt. Pending the final application of any such Net Proceeds, the Company may temporarily reduce revolving credit borrowings Senior Revolving Debt or otherwise invest the such Net Proceeds in any manner that is not prohibited by this Indenturethe terms hereof. Any Net Proceeds from Asset Sales that are not so invested or applied or invested as provided in the preceding paragraph will shall be deemed to constitute "Excess Proceeds." When the aggregate amount of Excess Proceeds exceeds $5.0 million within five business days thereof25.0 million, the Company will shall make an Asset Sale Offer offer to all Holders of Notes and all holders of other Indebtedness that is pari passu with the Notes containing provisions similar to those set forth in this Indenture with respect to offers to purchase or redeem with the proceeds of sales of assets in accordance with Section 3.09 hereof Securities (a "SENIOR SUBORDINATED ASSET SALE OFFER") to purchase the maximum principal amount of Notes and such other pari passu Indebtedness Securities that may be purchased out of the Excess Proceeds. The , at an offer price in any Asset Sale Offer will be cash equal to 100% of the principal amount thereof plus accrued and unpaid interest and Additional Interestthereon, if any, to the date of purchasepurchase (the "PURCHASE PRICE"), and will be payable in cashaccordance with the procedures set forth in Section 3.09 hereof. If any Excess Proceeds remain after consummation To the extent that the aggregate amount of an Securities tendered pursuant to a Senior Subordinated Asset Sale OfferOffer is less than the Excess Proceeds, the Company may use those any remaining Excess Proceeds for any purpose not otherwise prohibited by this Indenturegeneral corporate purposes. If the aggregate principal amount of Notes and other pari passu Indebtedness tendered into such Securities surrendered by holders pursuant to a Senior Subordinated Asset Sale Offer exceeds the amount of Excess Proceeds, the Trustee Securities shall select the Notes and such other pari passu Indebtedness to be purchased on a pro rata basis based on the principal amount of Notes and such other pari passu Indebtedness tenderedPRO RATA basis. Upon completion of each a Senior Subordinated Asset Sale Offer, the amount of Excess Proceeds will shall be reset at zero. The Company shall comply with the requirements of Rule 14e-1 under the Exchange Act and any other securities laws and regulations thereunder to the extent 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 4.10 of this Indenture, the Company shall comply with the applicable securities laws and regulations and shall not be deemed to have breached its obligations under those provisions of this Indenture by virtue of such conflict.
Appears in 1 contract
Sources: Indenture (Tenet Healthcare Corp)
Asset Sales. (a) The Company shall will not, and shall 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 such Asset Sale at least equal to the fair market value (measured as of the date of the definitive agreement with respect to such Asset Sale) of the assets or Equity Interests issued or sold or otherwise disposed of;
(2) the fair market value is determined , as approved in good faith 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
(32) at least 75% of the consideration received in the Asset Sale by the Company or such Restricted Subsidiary together with all other Asset Sales by the Company or any Restricted Subsidiary since the Issue Date (on a cumulative basis), is in the form of cashcash or Cash Equivalents. For purposes of this provisionprovision only (and specifically not for the purposes of the definition of “Net Proceeds”), each of the following will shall be deemed to be cash:
(A) (a) any liabilities, liabilities (as shown on the Company's ’s or such Restricted Subsidiary's most recent ’s balance sheet, or if incurred, accrued or increased 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 if such incurrence, accrual or increase had taken place on or prior to the date of such balance sheet, as determined in good faith by the Company) of the Company or any Restricted Subsidiary (other than contingent liabilities and liabilities that are by their terms subordinated to the Notes or any Subsidiary Guarantee) that are assumed by the transferee of any such assets pursuant and (b) any Indebtedness of any Restricted Subsidiary that is no longer a Restricted Subsidiary as a result of such Asset Sale, to a customary novation agreement the extent that releases the Company or such and each Restricted Subsidiary are released from further liabilityany Guarantee of payment of such Indebtedness in connection with such Asset Sale;
(bB) any securities, notes or other obligations received by the Company or any such Restricted Subsidiary from such transferee that within 180 days are converted within 30 days by the Company or such Restricted Subsidiary into cash, cash (to the extent of the cash received in that conversion);
(C) any Designated Noncash Consideration received by the Company or any Restricted Subsidiary in such Asset Sale having an aggregate fair market value, taken together with all other Designated Noncash Consideration received pursuant to this clause (C) since the Issue Date that is at the time outstanding, not to exceed the greater of (a) $497.0 million and (b) 30.0% of Consolidated Cash Flow (for the period of the four most recent consecutive fiscal quarters for which internal financial statements are available) at the time of receipt of such Designated Noncash Consideration, with the fair market value of each item of Designated Noncash Consideration being measured at the time received and without giving effect to subsequent changes in value;
(D) the fair market value (measured as of the date such Equity Interests or assets are received) of any Equity Interests or assets of the kind referred to in clauses (2) or (4) of Section 4.10(b); and
(cE) consideration consisting of Indebtedness (other than Subordinated Indebtedness) of the Company or any payment of Senior Debt secured by Restricted Subsidiary received after the assets sold in Issue Date from Persons who are not the Asset Sale. Company or any Restricted Subsidiary.
(b) Within 365 days after the receipt of any Net Proceeds from an of any Asset Sale, the Company may apply those Net Proceeds or such Restricted Subsidiary, at its option, may apply an amount equal to the Net Proceeds from such Asset Sale:
(1) to repay, prepay, redeem or repurchase (x) Indebtedness (other than Subordinated Indebtedness) and other Obligations (other than Subordinated Indebtedness) or to offer to repay Senior Debt andthe Notes; provided that Notes are repurchased, if repaid or redeemed on a pro rata basis or are offered to be repurchased on a pro rata basis, in each case at a price not less than par, plus accrued and unpaid interest, pursuant to the Senior Debt repaid Net Proceeds Offer provisions of Section 4.10(c) (and upon completion of such offer, the amount of Net Proceeds offered to be applied to repurchase the Notes shall be deemed to have been applied in accordance with this Section 4.10(b)(1), (y) Indebtedness and other Obligations of a Restricted Subsidiary that is revolving credit not a Guarantor and/or (z) Indebtedness and other Obligations (other than Subordinated Indebtedness, to correspondingly reduce commitments with respect thereto) that were secured by the assets disposed of in such Asset Sale;
(2) to acquire all or substantially all of the assets ofof another Related Business, or to acquire any Equity Interests of another Related Business, if, after giving effect to any such acquisition of Equity Interests, the Related Business is or becomes a majority Restricted Subsidiary of the Voting Stock of, another Permitted BusinessCompany;
(3) to make a capital expendituresexpenditure;
(4) to acquire other long-term assets (other than securities or current assets) that are will be used or useful in a Permitted Related Business, including that replace the business, properties or assets that are the subject of such Asset Sale; or
(5) for any a combination of prepayments and investments permitted by the foregoing clauses (1), (2), (3) through and (4); provided that the Company and its Restricted Subsidiaries will be deemed to have applied such Net Proceeds pursuant to clause (2), (3) or (4) above. of this Section 4.10(b), as applicable, if and to the extent that, within 365 days after the Asset Sale that generated the Net Proceeds, the Company has entered into and not abandoned or rejected a binding agreement to consummate any reinvestment described in clause (2), (3) or (4) of this paragraph, and such reinvestment is thereafter completed within 180 days after the end of such 365-day period.
(c) Pending the final application of any such Net Proceeds, the Company or any Restricted Subsidiary may temporarily reduce borrowings under the Credit Facilities or any other revolving credit borrowings facility, if any, or otherwise invest the such Net Proceeds in any manner that is not prohibited by this Indenture. Any Net Proceeds from Asset Sales that are not applied or invested Subject to Section 4.10(e), on the 366th day (as provided extended pursuant to the provisions in the preceding paragraph will constitute "Excess Proceeds." When paragraph) after an Asset Sale or such earlier date, if any, as the Company or such Restricted Subsidiary determines not to apply the Net Proceeds relating to such Asset Sale as set forth in clause (1), (2), (3), (4) or (5) of Section 4.10(b) (each, a “Net Proceeds Offer Trigger Date”), such aggregate amount of Excess Net Proceeds exceeds $5.0 million within five business days thereofwhich have not been applied on or before such Net Proceeds Offer Trigger Date as permitted in clauses (1), (2), (3), (4) or (5) of Section 4.10(b) (each a “Net Proceeds Offer Amount”) shall be applied by the Company will or such Restricted Subsidiary to make an Asset Sale offer to purchase (the “Net Proceeds Offer”) on a date (the “Net Proceeds Offer to Payment Date”) not less than 10 days nor more than 60 days following the applicable Net Proceeds Offer Trigger Date, from all Holders (and, if required by the terms of Notes and all holders of any other Indebtedness that is of the Company ranking pari passu with the Notes containing in right of payment and which has similar provisions similar requiring the Company either to those set forth in this Indenture with respect make an offer to offers repurchase or to purchase otherwise repurchase, redeem or redeem repay such Indebtedness with the proceeds from Asset Sales (the “Pari Passu Indebtedness”), from the holders of sales such other Pari Passu Indebtedness) on a pro rata basis (in proportion to the respective principal amounts or accreted value, as the case may be, of assets in accordance with Section 3.09 hereof to purchase the maximum Notes and any such other Pari Passu Indebtedness) an aggregate principal amount of Notes and (plus, if applicable, an aggregate principal amount or accreted value, as the case may be, of such other pari passu Indebtedness that may be purchased out of Pari Passu Indebtedness) equal to the Excess ProceedsNet Proceeds Offer Amount. The offer price in any Asset Sale Net Proceeds Offer will shall be equal to 100% of the principal amount of the Notes (or 100% of the principal amount or accreted value, as the case may be, of such other Pari Passu Indebtedness), plus accrued and unpaid interest and Additional Interestthereon, if any, to the date Net Proceeds Offer Payment Date.
(d) [Reserved].
(e) The Company may defer the Net Proceeds Offer until there is an aggregate unutilized Net Proceeds Offer Amount equal to or in excess of purchase$250.0 million resulting from one or more Asset Sales (at which time the entire unutilized Net Proceeds Offer Amount, and not just the amount in excess of $250.0 million, shall be applied as required pursuant to Section 4.10, and in which case the Net Proceeds Offer Trigger Date shall be deemed to be the earliest date that the Net Proceeds Offer Amount is equal to or in excess of $250.0 million).
(f) Each Net Proceeds Offer will be payable sent to the record Holders as shown on the register of Holders within 25 days following the Net Proceeds Offer Trigger Date, with a copy to the Trustee, and shall comply with the procedures set forth in Section 3.09. Upon receiving notice of the Net Proceeds Offer, Holders may elect to tender their Notes in whole or in part in minimum denominations of $2,000 or integral multiples of $1,000 in excess thereof in exchange for cash. If any Excess Proceeds remain after consummation of an Asset Sale Offer, To the Company may use those Excess Proceeds for any purpose not otherwise prohibited by this Indenture. If extent that the aggregate principal amount of Notes (plus, if applicable, the aggregate principal amount or accreted value, as the case may be, of other Pari Passu Indebtedness) validly tendered by the Holders thereof and not withdrawn exceeds the Net Proceeds Offer Amount, Notes of tendering Holders (and, if applicable, other pari passu Pari Passu Indebtedness tendered into such Asset Sale Offer exceeds by the amount of Excess Proceeds, the Trustee shall select the Notes and such other pari passu Indebtedness to holders thereof) will be purchased on a pro rata basis (based on the principal amount of the Notes and and, if applicable, the principal amount or accreted value, as the case may be, of any such other pari passu Pari Passu Indebtedness tenderedtendered and not withdrawn). To the extent that the aggregate amount of the Notes (plus, if applicable, the aggregate principal amount or accreted value, as the case may be, of any other Pari Passu Indebtedness) tendered pursuant to a Net Proceeds Offer is less than the Net Proceeds Offer Amount, the Company may use such excess Net Proceeds Offer Amount for general corporate purposes or for any other purpose not prohibited by this Indenture. Upon completion of each Asset Sale any such Net Proceeds Offer, the amount of Excess Net Proceeds will Offer Amount shall be reset at zerozero (regardless of whether there is any excess Net Proceeds Offer Amount upon such completion). A Net Proceeds Offer shall remain open for a period of 20 Business Days or such longer period as may be required by applicable law.
(g) The Company shall or the applicable Restricted Subsidiary, as the case may be, will comply with the requirements of Rule 14e-1 under the Exchange Act and any other securities laws and regulations thereunder to the extent those such laws and regulations are applicable in connection with each the repurchase of Notes pursuant to an Asset Sale a Net Proceeds Offer. To the extent that the provisions of any securities laws or regulations conflict with the provisions of Section 3.09 or 4.10 of this IndentureSection 4.10, the Company or such Restricted Subsidiary shall comply with the applicable securities laws and regulations and shall not be deemed to have breached its obligations under those Section 3.09 or this Section 4.10 by virtue of such compliance.
(h) The provisions of this Indenture by virtue relating to the Company’s obligations to make an offer to repurchase the Notes as a result of such conflictan Asset Sale may be waived or modified at any time with the written consent of the Holders of a majority in aggregate principal amount of the Notes then outstanding. A Net Proceeds Offer may be made at the same time as consents are solicited with respect to an amendment, supplement or waiver of this Indenture, the Notes and/or the Subsidiary Guarantees.
Appears in 1 contract
Sources: Indenture (Post Holdings, Inc.)
Asset Sales. The Company Any and all proceeds derived from the sale or disposition (whether voluntary or involuntary), or on account of damage or destruction, of the real estate, furniture, fixtures, equipment or other fixed assets of the Borrower or any Subsidiary shall notbe paid over to the Agent as and for a mandatory prepayment on the Term Notes; provided, however, that (i) the foregoing provisions shall be inapplicable to proceeds received by the Agent under the Collateral Documents if and so long as, pursuant to the terms of the Collateral Documents, the same are to be held by the Agent and disbursed for the restoration, repair or replacement of the property in respect of which such proceeds were received, (ii) no prepayment shall not permit be required with respect to the first $100,000 of net proceeds (i.e., gross proceeds net of out-of-pocket expenses incurred in effecting the sale or other disposition) received during any one calendar year from the sale or other disposition of equipment, furniture and fixtures of the Borrower and its Subsidiaries, taken together, which are worn out, obsolete or, in the good faith judgment of the Borrower or such Subsidiary, no longer desirable to the efficient conduct of its business as then conducted, (iii) no prepayment shall be required with respect to proceeds received from the sale, damage or destruction of any of its Restricted Subsidiaries to, consummate an Asset Sale unless:
the equipment or other assets subject to Liens permitted by Section 8.12 hereof if and to the extent such proceeds are applied to reduce the indebtedness secured by such Liens and (1iv) so long as no Default or Event of Default has occurred or is continuing the Company (Borrower or the Restricted such Subsidiary, as the case may be) receives consideration at the time of the Asset Sale at least equal to the fair market value of the 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 set forth in an Officers' Certificate delivered to the Trustee; and
(3) at least 75% of the consideration received in the Asset Sale by the Company or such Restricted Subsidiary is in the form of cash. For purposes of this provision, each of the following will be deemed to be cash:
(a) any liabilities, as shown on the Company's or such Restricted Subsidiary's most recent balance sheet, of the Company or any Restricted Subsidiary (other than contingent liabilities and liabilities that are by their terms subordinated to the Notes or any Subsidiary Guarantee) that are assumed by the transferee of any such assets pursuant to a customary novation agreement that releases the Company or such Restricted Subsidiary from further liability;
(b) any securities, notes or other obligations received by the Company or any such Restricted Subsidiary from such transferee that are converted within 30 days by the Company or such Restricted Subsidiary into cash, to the extent of the cash received in that conversion; and
(c) any payment of Senior Debt secured by the assets sold in the Asset Sale. Within 365 days after the receipt of any Net Proceeds from an Asset Sale, the Company may apply those Net Proceeds at its option:
(1) to repay Senior Debt and, if the Senior Debt repaid is revolving credit Indebtedness, to correspondingly reduce commitments with respect thereto;
(2) to acquire all or substantially all of the assets of, or a majority of the Voting Stock of, another Permitted Business;
(3) to make capital expenditures;
(4) to acquire other long-term assets that are used or useful in a Permitted Business; or
(5) for any combination of clauses (1) through (4) above. Pending the final application of any Net Proceeds, the Company may temporarily reduce revolving credit borrowings or otherwise invest the Net Proceeds in any manner that is not prohibited by this Indenture. Any Net Proceeds from Asset Sales that are not applied or invested as provided in the preceding paragraph will constitute "Excess Proceeds." When the aggregate amount of Excess Proceeds exceeds $5.0 million within five business days thereof, the Company will make an Asset Sale Offer to all Holders of Notes and all holders of other Indebtedness that is pari passu with the Notes containing provisions similar to those set forth in this Indenture with respect to offers to purchase or redeem with retain the proceeds derived from the sale, damage or destruction of sales of assets in accordance with Section 3.09 hereof fixtures, furniture and equipment if and to purchase the maximum principal amount of Notes and such other pari passu Indebtedness that may be purchased out of the Excess Proceeds. The offer price in any Asset Sale Offer will be equal to 100% of principal amount plus accrued and unpaid interest and Additional Interest, if any, to the date of purchase, and will be payable in cash. If any Excess Proceeds remain after consummation of an Asset Sale Offer, the Company may use those Excess Proceeds for any purpose not otherwise prohibited by this Indenture. If the aggregate principal amount of Notes and other pari passu Indebtedness tendered into such Asset Sale Offer exceeds the amount of Excess Proceeds, the Trustee shall select the Notes and such other pari passu Indebtedness to be purchased on a pro rata basis based on the principal amount of Notes and such other pari passu Indebtedness tendered. Upon completion of each Asset Sale Offer, the amount of Excess Proceeds will be reset at zero. The Company shall comply with the requirements of Rule 14e-1 under the Exchange Act and any other securities laws and regulations thereunder to the extent 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 Borrower or such Subsidiary establishes to the reasonable satisfaction of the Agent that the equipment sold, damaged, or destroyed has been replaced (or repaired in the case of damaged property) with fixtures, furniture or equipment of at least equal value and utility to that replaced (before any securities laws such damage or regulations conflict with destruction) which is subject to a first lien in favor of the provisions Agent for the benefit of Section 3.09 the Lenders. Nothing herein contained shall in any manner impair or 4.10 otherwise affect the prohibitions against the sale or other disposition of this Indenture, Collateral contained herein and in the Company shall comply with the applicable securities laws and regulations and shall not be deemed to have breached its obligations under those provisions of this Indenture by virtue of such conflictCollateral Documents.
Appears in 1 contract
Asset Sales. The Neither the Company shall not, and shall not permit nor any of its Restricted Subsidiaries toshall engage in any Asset Sale, consummate an Asset 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 of the assets or Equity Interests issued or sold or otherwise disposed of;
Fair Market Value (2) 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) of the assets sold or otherwise disposed of; and
(3ii) except in the case of Permitted Asset Swaps, at least 75% of the consideration therefor received in the Asset Sale by the Company or such Restricted Subsidiary is in the form of cash. For purposes cash or Cash Equivalents; provided, however, that the amount of this provision, each of the following will be deemed to be cash:
(a) any liabilities, liabilities (as shown on the Company's or such Restricted Subsidiary's most recent balance sheet, sheet or in the notes thereto) of the Company or any such Restricted Subsidiary (other than contingent liabilities and liabilities that are by their terms subordinated in right of payment to the Notes or any Subsidiary GuaranteeNotes) that are assumed by the transferee of any such assets pursuant to a customary novation agreement that releases the Company or such Restricted Subsidiary from further liability;
and (b) any securities, notes or other obligations received by the Company or any such Restricted Subsidiary from such transferee that are immediately converted within 30 days by the Company or such Restricted Subsidiary into cash, cash (to the extent of the cash received in that conversion; and
(c) any payment so received), shall be deemed to be cash for purposes of Senior Debt secured by the assets sold in the Asset Salethis provision. Within 365 360 days after the receipt of any the Net Proceeds from an Asset Sale, the Company may shall apply those the Net Proceeds at its option:
from such Asset Sale to (1i) to repay permanently reduce Senior Debt and, if the Senior Debt repaid is revolving credit Indebtedness, to correspondingly (ii) permanently reduce commitments with respect thereto;
(2) to acquire all or substantially all Indebtedness of the Restricted Subsidiary that sold properties or assets ofin the Asset Sale, or a majority (iii) acquire properties and assets to replace the properties and assets that were the subject of the Voting Stock of, another Permitted Business;
(3) to make capital expenditures;
(4) to acquire other long-term Asset Sale or properties and assets that are will be used in the same or useful a similar line of business as the Company was engaged in a Permitted Business; or
(5) for any combination on the date of clauses (1) through (4) abovethis Indenture or reasonable extensions, developments or expansions thereof or activities ancillary thereto. Pending the final application of any such Net Proceeds, the Company may temporarily reduce revolving credit borrowings or otherwise invest the such Net Proceeds in any manner that is not prohibited by this Indenture. Any Net Proceeds from the Asset Sales Sale that are not applied or invested as provided in the preceding first sentence of this paragraph will be deemed to constitute "Excess Proceeds." When the aggregate cumulative amount of Excess Proceeds exceeds $5.0 million within five business days thereof5,000,000, the Company will shall make an Asset Sale Offer offer to all Holders of Notes and all holders of other Indebtedness that is pari passu with the Notes containing provisions similar to those set forth in this Indenture with respect to offers to purchase or redeem with the proceeds of sales of assets in accordance with Section 3.09 hereof to purchase the maximum principal amount of Notes and such other pari passu Indebtedness that may be purchased out of the Excess Proceeds. The , at an offer price in any Asset Sale Offer will be cash in an amount equal to 100% of the principal amount thereof plus accrued and unpaid interest and Additional InterestLiquidated Damages, if any, thereon to the date of purchase, and will be payable in cashaccordance with the procedures set forth in this Section 4.20 (an "Asset Sale Offer"). If any Excess Proceeds remain after consummation To the extent that the aggregate amount of Notes tendered pursuant to an Asset Sale OfferOffer is less than the Excess Proceeds, the Company may use those Excess Proceeds such deficiency for general corporate purposes in any purpose not otherwise prohibited manner provided by this Indenture. If the aggregate principal amount of Notes and other pari passu Indebtedness tendered into such Asset Sale Offer exceeds the amount of Excess Proceeds, the Trustee shall select the Notes and such other pari passu Indebtedness to be purchased on a pro rata basis based on the principal amount of Notes and such other pari passu Indebtedness tendered. Upon completion of each Asset Sale Offer, the amount of Excess Proceeds will be reset at zero. The Company shall comply with the requirements of Rule 14e-1 under the Exchange Act and any other securities laws and regulations thereunder to the extent 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 4.10 of this Indenture, the Company shall comply with the applicable securities laws and regulations and shall not be deemed to have breached its obligations under those provisions of this Indenture surrendered by virtue of such conflict.Holders thereof exceeds
Appears in 1 contract
Sources: Indenture (Mmi Products Inc)
Asset Sales. The Company shall not, and 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 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 set forth in an Officers' Certificate delivered to the Trustee; and
) of the assets sold or otherwise disposed of and (3ii) at least 75% (100% in the case of lease payments) of the consideration therefor received in the Asset Sale by the Company or such Restricted Subsidiary is in the form of cash. For purposes cash or Cash Equivalents; provided that the amount of this provision, each of the following will be deemed to be cash:
(a) any liabilities, liabilities (as shown on the Company's 's, or such Restricted Subsidiary's 's, most recent balance sheet, ) of the Company or any Restricted Subsidiary (other than contingent liabilities and liabilities that are by their terms subordinated to the Notes or any Subsidiary Guaranteeguarantee thereof) that are assumed by the transferee of any such assets pursuant to a customary novation agreement that releases the Company or 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 within 30 days by the Company or such Restricted Subsidiary into cash, cash (to the extent of the cash received in that conversion; and
(c) any payment received), shall be deemed to be cash for purposes of Senior Debt secured by the assets sold in the Asset Salethis provision. Within 365 days after the receipt of any Net Proceeds from an Asset Sale, the Company may apply those such Net Proceeds Proceeds, at its option:
(1) to repay Senior Debt and, if the Senior Debt repaid is revolving credit Indebtedness, to correspondingly (i) permanently reduce Indebtedness under the New Credit Facility; provided that such permanent reduction is accompanied by a corresponding reduction in the lending commitments with respect thereto;
under the New Credit Facility, (2ii) to acquire all another business or substantially all of the assets of, or a majority of the Voting Stock of, another Permitted Business;
(3) to make capital expenditures;
(4) to acquire other long-term assets that are assets, in each case, in, or used or useful in, the same or a similar line of business as the Company or any of its Subsidiaries was engaged in on the date of this Indenture or any reasonable extension or expansion thereof (including the Capital Stock of another Person engaged in such business; provided such other Person is, or immediately after and giving effect to such acquisition shall become, a Permitted Business; or
Wholly-Owned Subsidiary of the Company (5other than a Receivables Subsidiary)), or (iii) reimburse the Company or any of its Subsidiaries for any combination expenditures made, and costs incurred, to repair, rebuild, replace or restore property subject to loss, damage or taking to the extent that the Net Proceeds consist of clauses (1) through (4) aboveinsurance or condemnation or similar proceeds received on account of such loss, damage or taking. Pending the final application of any such Net Proceeds, the Company may temporarily reduce revolving credit borrowings Indebtedness under the New Credit Facility or otherwise invest the such Net Proceeds in any manner that is not prohibited by this Indenturecash or Cash Equivalents. Any Net Proceeds from Asset Sales that are not applied or invested as provided in the preceding first sentence of this paragraph will shall be deemed to constitute "Excess Proceeds." When the aggregate amount of Excess Proceeds exceeds $5.0 million within five business days thereofmillion, the Company will shall be required to make an Asset Sale Offer to all Holders of Notes and all holders of other Indebtedness that is pari passu with the Notes containing provisions similar to those set forth in this Indenture with respect to offers to purchase or redeem with the proceeds of sales of assets in accordance with Section 3.09 hereof to purchase the maximum principal amount (that is an integral multiple of $1,000) of Notes and such other pari passu Indebtedness that may be purchased out of the Excess Proceeds. The , at an offer price in any Asset Sale Offer will be cash in an amount equal to 100% of the principal amount thereof plus accrued and unpaid interest and Additional InterestLiquidated Damages, if any, thereon to the date of purchase, and will be payable in cashaccordance with the procedures set forth in Article 3 hereof. If any Excess Proceeds remain after consummation To the extent that the aggregate amount of Notes tendered pursuant to an Asset Sale OfferOffer is less than the Excess Proceeds, the Company (or such Subsidiary) may use those any remaining Excess Proceeds for any purpose not otherwise prohibited by this Indenturegeneral corporate purposes. If the aggregate principal amount of Notes and other pari passu Indebtedness tendered into such Asset Sale Offer surrendered by Holders thereof exceeds the amount of Excess Proceeds, the Trustee shall select the Notes and such other pari passu Indebtedness to be purchased on a pro rata basis based on (with such adjustments as may be deemed appropriate by the principal amount Company so that only Notes in denominations of Notes and such other pari passu Indebtedness tendered$1,000, or integral multiples thereof, shall be purchased). Upon completion of each Asset Sale Offersuch offer to purchase, the amount of Excess Proceeds will shall be reset at zero. The Notwithstanding the foregoing, the Company and its Subsidiaries shall comply be permitted to consummate one or more Asset Sales with respect to assets or properties with an aggregate fair market value (evidenced by a resolution of the requirements Board of Rule 14e-1 under the Exchange Act and any other securities laws and regulations thereunder Directors set forth in an Officers' Certificate delivered to the extent those laws and regulations are applicable Trustee) not in connection excess of $5.0 million with each repurchase respect to all such Asset Sales made subsequent to the date of Notes pursuant to an Asset Sale Offer. To the extent that the provisions of any securities laws or regulations conflict this Indenture without complying with the provisions of Section 3.09 or 4.10 of this Indenture, the Company shall comply with the applicable securities laws and regulations and shall not be deemed to have breached its obligations under those provisions of this Indenture by virtue of such conflictpreceding paragraphs.
Appears in 1 contract
Asset Sales. The Company (a) Revel shall not, and shall not permit any of its Restricted Subsidiaries to, consummate an Asset Sale unless:
(1) the Company Revel (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 of (a) the assets or (b) the 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 set forth in an Officers' Certificate delivered to the Trustee; and
(32) at least 75% of the consideration received in the Asset Sale by the Company Revel or such Restricted Subsidiary is in the form of cash(i) Permitted Business Assets or (ii) cash or Cash Equivalents. For purposes of this provision, each of the following will be deemed to be cash:
(ai) any liabilities, as shown on the Company's or such Restricted Subsidiary's most recent consolidated balance sheet, sheet (including the footnotes) of Revel and the Company or any Restricted Subsidiary Subsidiaries (other than contingent liabilities and liabilities that are by their terms subordinated to the Notes or any Subsidiary Note Guarantee) that are assumed by the transferee of any such assets pursuant to a customary novation agreement that releases the Company and from which Revel or such Restricted Subsidiary from further liability;Subsidiary, as applicable, are released; and
(bii) any securities, notes Notes or other obligations obligations, instruments, or assets received by the Company Revel or any such Restricted Subsidiary from such transferee that are converted within 30 180 days after receipt thereof by the Company Revel or such Restricted Subsidiary into cashcash or Cash Equivalents, to the extent of the cash or Cash Equivalents received in that conversion; and.
(cb) any payment of Senior Debt secured by the assets sold in the Asset Sale. Within 365 days after the receipt of any Net Proceeds from an Asset Sale, Revel (or the Company applicable Restricted Subsidiary, as the case may apply those Net Proceeds be) may, at its option, apply such Net Proceeds to:
(1) repay, repurchase or redeem senior secured Indebtedness of Revel or any Restricted Subsidiary that is secured by Liens equal or senior in priority to repay Senior Debt the Liens securing the Notes and/or the Note Guarantees, as applicable, and, if the Senior Debt Indebtedness repaid is revolving credit Indebtedness, to correspondingly permanently reduce the commitments with respect theretoto that Indebtedness;
(2) to make a capital expenditure, improve real property or acquire all or substantially all of the assets of, or a majority of the Voting Stock of, another Permitted Business;
(3) to make capital expenditures;
(4) to acquire other long-term assets that are used Permitted Business Assets; provided that to the extent the Net Proceeds being applied are from an Asset Sale of an asset that was Collateral securing the Notes or useful a Note Guarantee, the assets acquired with such Net Proceeds shall be pledged as Collateral securing the Notes or a Note Guarantee and shall not constitute Excluded Assets (notwithstanding that such assets may be of a type that would otherwise constitute Excluded Assets); provided further that if the assets that were the subject of such Asset Sale were Excluded Assets or did not otherwise constitute Collateral, the assets acquired shall not be required to be pledged as Collateral;
(3) enter into a binding commitment to take, within 12 months after the date of such commitment, any of the actions in a Permitted Businessthe foregoing clauses (1) and (2); or
(54) for any combination of the actions listed in the foregoing clauses (1) through (43). Revel (or such Restricted Subsidiary, as the case may be) aboveshall comply with the terms of the Collateral Documents with respect to the continuation or granting of a security interest (subject to Permitted Liens and the terms of the Intercreditor Agreement) on any property or assets acquired or constructed with the Net Proceeds of any Asset Sale. Pending the final application of any Net Proceeds, Revel (or such Restricted Subsidiary, as the Company case may be) may, at its option, (1) apply the Net Proceeds to temporarily reduce amounts outstanding under any senior secured revolving credit borrowings Indebtedness of Revel or any Restricted Subsidiary, (2) invest the Net Proceeds in Cash Equivalents, which will be subject to a security interest (subject to Permitted Liens and the terms of the Intercreditor Agreement) in favor of the Trustee, on behalf of the Holders of Notes, as security for the Notes or (3) otherwise invest or apply the Net Proceeds in any manner that is not prohibited by this Indenture. The Credit Agreement requires Revel and the Restricted Subsidiaries, in certain circumstances, to apply the Net Proceeds from an Asset Sale to repay any loans outstanding under the Credit Agreement, and any revolving credit agreement entered into in the future may be subject to a similar requirement. In such circumstances, until the debt under the Credit Agreement and any such future revolving credit agreement has been repaid in full, there will not be any Net Proceeds.
(c) Any Net Proceeds from Asset Sales that are not applied or invested as provided in the preceding paragraph will 4.10(b) shall constitute "“Excess Proceeds." When ” Within 30 days following the date on which the aggregate amount of Excess Proceeds exceeds $5.0 million within five business days thereof50.0 million, the Company Revel will make an offer (an “Asset Sale Offer Offer”) to all Holders of Notes and all holders of other Indebtedness that is pari passu with the Notes containing provisions similar to those set forth in this Indenture with respect to offers to purchase or redeem with the proceeds of sales of assets in accordance with Section 3.09 hereof Notes, to purchase the maximum principal amount (or accreted value, if applicable) of the Notes and such other pari passu Indebtedness that may be purchased out of the amount of Excess Proceeds. To the extent that the aggregate principal amount (or accreted value, if applicable) of the Notes tendered into the Asset Sale Offer is less than the principal amount (or accreted value, if applicable) of Notes offered to be purchased in the Asset Sale Offer, Revel and its Restricted Subsidiaries may use those remaining Excess Proceeds for any purpose not otherwise prohibited by this Indenture. If the aggregate principal amount (or accreted value, if applicable) of Notes tendered into the Asset Sale Offer exceeds the amount of Excess Proceeds, the Trustee will select such Notes to be purchased on a pro rata basis (with such adjustments as may be deemed appropriate by Revel so that only Notes in denominations of $2,000, or an integral multiple of $1,000 in excess of $2,000, will be purchased, other than any PIK Notes) or otherwise pursuant to Section 3.02, as applicable. Upon completion of each Asset Sale Offer, the amount of Excess Proceeds will be reset at zero. The offer price in any Asset Sale Offer will be equal to 100% of principal amount plus accrued and unpaid interest and Additional Interestinterest, if any, to but not including the date of purchase, and will be payable in cash. If any Excess Proceeds remain after consummation of an Asset Sale Offer, the Company may use those Excess Proceeds for any purpose not otherwise prohibited by this Indenture. If the aggregate principal amount of Notes and other pari passu Indebtedness tendered into such Asset Sale Offer exceeds the amount of Excess Proceeds, the Trustee shall select the Notes and such other pari passu Indebtedness to be purchased on a pro rata basis based on the principal amount of Notes and such other pari passu Indebtedness tendered. Upon completion of each Asset Sale Offer, the amount of Excess Proceeds will be reset at zero. The Company If the payment date in connection with a Asset Sale Offer is on or after an interest record date and on or before the associated interest payment date, any accrued and unpaid interest, if any, due on such interest payment date will be paid to the Person in whose name a Note is registered at the close of business on such record date, and such interest will not be payable to holders who tender Notes pursuant to such Asset Sale Offer. Revel shall comply with the requirements of Rule 14e-1 under the Exchange Act and any other securities laws and regulations thereunder to the extent those these laws and regulations are applicable in connection with each repurchase of Notes pursuant to an Asset Sale Offer. To the extent that the provisions of any securities laws or regulations conflict with the provisions of Section 3.09 or 3.10 and this Section 4.10 of this Indenture, the Company shall Revel will comply with the applicable securities laws and regulations and shall will not be deemed to have breached its obligations under those provisions of Section 3.10 or this Indenture Section 4.10 by virtue of such conflictcompliance.
Appears in 1 contract
Asset Sales. The Company shall not, and shall not permit any of its Restricted Subsidiaries to, 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 of the assets or Equity Interests issued or sold or otherwise disposed of;
; (2ii) the fair market value is determined by (a) an executive officer of the Company if the value is less than $10.0 million and evidenced by an officer's certificate delivered to the Trustee or (b) the Company's Board of Directors if the value is $10.0 million or more and evidenced by a resolution of the such Board of Directors set forth in an Officers' Certificate delivered to the Trustee; and
and (3iii) at least 75% of the consideration received in the Asset Sale by the Company or such Restricted Subsidiary is in the form of cashcash or Cash Equivalents or any combination thereof. For purposes of this provision, Section 4.10 each of the following will shall be deemed to be cash:
: (a) any liabilities, liabilities (as shown on the Company's or such Restricted Subsidiary's most recent balance sheet, ) of the Company or any Restricted Subsidiary (other than contingent liabilities and liabilities that are by their terms subordinated to the Notes or any Subsidiary Guarantee) that are assumed by the transferee of any such assets pursuant to a customary novation agreement that releases the Company or 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 converted within 30 days by the Company or such Restricted Subsidiary into cashcash or Cash Equivalents within 180 days following the closing of such Asset Sale, to the extent of the cash or Cash Equivalents received in that conversion; and
(c) any payment of Senior Debt secured by the assets sold in the Asset Sale. Within 365 days after the receipt of any Net Proceeds from an Asset Sale, the Company may apply those such Net Proceeds at its option:
option (1i) to repay repay, repurchase, redeem, defease or otherwise acquire or retire Senior Debt and, if of the Senior Debt repaid is revolving credit Indebtedness, to correspondingly reduce commitments with respect thereto;
Company or any Indebtedness of a Restricted Subsidiary or the 5.5% Convertible Subordinated Notes due 2004 of the Company; (2ii) to acquire all or substantially all of the assets of, or a majority of the Voting Stock of, another Permitted Business;
; (3iii) to make a capital expenditures;
expenditure in a Permitted Business; or (4iv) to acquire other long-term assets that are used or useful in a Permitted Business; or
(5) for any combination of clauses (1) through (4) above. Pending the final application of any such Net Proceeds, the Company may temporarily reduce revolving credit borrowings or otherwise invest the such Net Proceeds in any manner that is not prohibited by this Indenture. Any Net Proceeds from Asset Sales that are not applied or invested as provided in the preceding paragraph will constitute "Excess Proceeds." When the aggregate amount of Excess Proceeds exceeds $5.0 million within five business days thereof20.0 million, the Company will be required to make an offer (an "Asset Sale Offer Offer") to all Holders of Notes and to the extent required, to all holders of other Indebtedness of the Company that is pari passu with the Notes containing provisions similar to those set forth in this Indenture with respect to offers to purchase or redeem with the proceeds of sales of assets in accordance with Section 3.09 hereof assets, to purchase the maximum principal amount of Notes (in integral multiples of $1,000) and such other pari passu Indebtedness of the Company that may be purchased out of the Excess Proceeds. The offer price in any Asset Sale Offer will be equal to 100% of the principal amount of Notes and other pari passu Indebtedness to be purchased or the lesser amount required under agreements governing such other pari passu Indebtedness, plus accrued and unpaid interest and Additional InterestLiquidated Damages, if any, to the date of purchase, and will be payable in cash. If any Excess Proceeds remain after consummation of an Asset Sale Offer, the Company may use those Excess Proceeds for any purpose not otherwise prohibited by this Indenture. If the aggregate principal amount of Notes and other pari passu Indebtedness tendered into such Asset Sale Offer exceeds the amount of Excess Proceeds, the Trustee shall will select the Notes and such other pari passu Indebtedness to be purchased on a pro rata basis based on the principal amount of Notes and such other pari passu Indebtedness tenderedbasis. Upon completion of each Asset Sale Offer, the amount of Excess Proceeds will be reset at zero. The Company shall will comply with the requirements of Rule 14e-1 under the Exchange Act and any other securities laws and regulations thereunder to the extent those such laws and regulations are applicable in connection with each 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 Section 3.09 or 4.10 of this Indenturecovenant, the Company shall will comply with the applicable securities laws and regulations and shall will not be deemed to have breached its obligations under those provisions of this Indenture covenant by virtue of such conflict.
Appears in 1 contract
Sources: Indenture (Quail Usa LLC)
Asset Sales. The Company shall will not, and shall 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 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 set forth in an Officers' Certificate delivered to the Trustee; and
(3b) at least 75% of the aggregate consideration received in 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 cashcash or Cash Equivalents. For purposes of this provision, each of the following will be deemed to be cash:
(ai) any liabilities, as shown on the Company's or such Restricted Subsidiary's ’s most recent consolidated balance sheet, of the Company or any of its Restricted Subsidiary Subsidiaries (other than contingent liabilities and liabilities that are by their terms subordinated to the Notes or any Subsidiary 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 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 within 30 days by the Company or such Restricted Subsidiary into cash, to the extent of the cash received in that conversion;
(iv) any Capital Stock or assets of the kind referred to in clause (ii) or (iv) of Section 4.10(c) hereof; and
(v) 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 (v), not to exceed an amount equal to 5.0% of 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) any payment of Senior Debt secured by the assets sold in the Asset Sale. Within 365 days after the receipt of any Net Proceeds from an Asset Sale, the Company or one or more of its Restricted Subsidiaries may apply those an amount equal to the amount of such Net Proceeds at its optionoption to any combination of the following:
(1i) to repay Senior Debt andrepay, if repurchase or redeem any senior Indebtedness of the Senior Debt repaid is revolving credit IndebtednessCompany or any Guarantor, in each case owing to correspondingly reduce commitments with respect theretoa Person other than the Company or any Restricted Subsidiary;
(2ii) to acquire all or substantially all of the assets ofassets, 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 majority Restricted Subsidiary of the Voting Stock of, another Permitted BusinessCompany;
(3iii) to make capital expenditures;expenditures in respect of the Company’s or any of its Restricted Subsidiaries’ Oil and Gas Business; or
(4iv) to acquire other long-term 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 satisfied if a Permitted Business; or
(5) for bona fide binding contract committing to make the acquisition referred to therein is entered into by the Company or any combination of clauses (1) through (4) aboveits Restricted Subsidiaries with a Person other than an Affiliate of the Company within the time period specified in the preceding paragraph and such Net Proceeds are subsequently applied in accordance with such contract within 180 days following the date such agreement is entered into. Pending the final application of any Net Proceeds, the Company or any of its Restricted Subsidiaries may temporarily reduce revolving credit borrowings or otherwise invest the Net Proceeds in any manner that is not prohibited by this Indenture. Any The Net Proceeds from Asset Sales that are not applied or invested as provided in the preceding paragraph Sections 4.10(b) and 4.10(c) hereof will constitute "“Excess Proceeds." ” When the aggregate amount of Excess Proceeds exceeds $5.0 million 35.0 million, within five business days thereof, the Company will make an offer (an “Asset Sale Offer Offer”) to all Holders of Notes and all holders of other Indebtedness that is pari passu with the Notes containing provisions similar to those set forth in this Indenture Section 4.10 with respect to offers to purchase purchase, prepay or redeem such Indebtedness with the proceeds of sales of assets in accordance with Section 3.09 hereof assets, to purchase purchase, prepay or redeem, on a pro rata basis, the maximum principal amount of Notes and such other pari passu Indebtedness (plus all accrued interest on the 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 redeemed out of the Excess Proceeds. The offer price in any Asset Sale Offer will be equal to 100% of the principal amount amount, plus accrued and unpaid interest and Additional Interestinterest, if any, to to, but excluding, the date of purchase, prepayment or redemption, subject to the rights of Holders of Notes on the relevant record date to receive interest due on the relevant interest payment date, and will be payable in cash. If any Excess Proceeds remain after consummation of an Asset Sale Offer, the Company or any of its Restricted Subsidiaries may use those Excess Proceeds for any purpose not otherwise prohibited by this Indenture. If the aggregate principal amount of Notes and other pari passu Indebtedness tendered into in such Asset Sale Offer exceeds the amount of Excess ProceedsProceeds allocated to the purchase of Notes, the Trustee shall will select the Notes and such other pari passu Indebtedness to be purchased on a pro rata basis (except that any Notes represented by a Note in global form will be selected by such method as DTC or its nominee or successor may require or, where such nominee or successor is the Trustee, a method that most nearly approximates pro rata selection as the Trustee deems fair and appropriate unless otherwise required by law), based on the principal amount amounts tendered (with such adjustments as may be deemed appropriate by the Company so that only Notes in denominations of Notes and such other pari passu Indebtedness tendered$2,000, or an integral multiple of $1,000 in excess thereof, will be purchased). Upon completion of each Asset Sale Offer, the amount of Excess Proceeds will be reset at zero. The Company shall will comply with the requirements of Rule 14e-1 under the Exchange Act and any other securities laws and regulations thereunder to the extent those laws and regulations are applicable in connection with each repurchase of Notes pursuant to 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 3.09, Section 4.15 or this Section 4.10 of this Indenturehereof, the Company shall will comply with the applicable securities laws and regulations and shall will not be deemed to have breached its obligations under those provisions of Section 3.09 or Section 4.15 hereof or this Indenture Section 4.10 by virtue of such conflictcompliance.
Appears in 1 contract
Sources: Indenture (Callon Petroleum Co)
Asset Sales. (a) The Company shall not, and shall not permit any of its Restricted Subsidiaries to, to consummate an Asset Sale unless:
(1i) the Company (or the such Restricted Subsidiary, as the case may be) , receives consideration at the time of the such Asset Sale at least equal to the fair market value of the assets or Equity Interests issued or sold or otherwise disposed ofof (evidenced by a Board Resolution of the Board of Directors of the Company set forth in an Officers' Certificate delivered to the Trustee);
(2ii) if the Company or such Restricted Subsidiary, as the case may be, receives consideration at the time of such Asset Sale greater than $7.5 million, the fair market value of the assets sold or otherwise disposed of is determined by the CompanyParent's Board of Directors and (such determination to be evidenced by a resolution Board Resolution of the Parent's Board of Directors set forth in an Officers' Certificate delivered to the Trustee) or in a written opinion issued by an independent appraisal firm or financial advisor of national standing; and
(3iii) at least 75% of the consideration received in the Asset Sale by the Company or such Restricted Subsidiary is in the form of cash. , Cash Equivalents or Replacement Assets.
(b) For purposes of this provisionSection 4.12(a) only, each of the following will be deemed to be cash:
(ai) any liabilitiesliabilities of the Company or any of its Restricted Subsidiaries, as shown on the Company's or such Restricted Subsidiary's most recent balance sheet, of the Company or any Restricted Subsidiary sheet (other than contingent liabilities and liabilities that are by their terms subordinated to the Notes or any Restricted Subsidiary's Subsidiary Guarantee) that are assumed by the transferee of any such assets pursuant to a customary novation agreement that releases the Company or such Restricted Subsidiary from further liability;; and
(bii) any securities, notes or other obligations received by the Company or any such Restricted Subsidiary from such transferee that are contemporaneously, subject to ordinary settlement periods, converted within 30 days by the Company or such Restricted Subsidiary into cash, to the extent of the cash received in that conversion; and;
(iii) any Designated Non-Cash Consideration received by the Company or any of its Restricted Subsidiaries in the Asset Sale.
(c) any payment of Senior Debt secured by the assets sold in the Asset Sale. Within 365 days after the receipt of any Net Proceeds from an Asset Sale, the Company and its Restricted Subsidiaries may apply those Net Proceeds at its their option:
(1i) to repay Senior Debt and, if the Senior Debt repaid is revolving credit Indebtedness, to correspondingly permanently reduce commitments with respect thereto;
(2ii) to acquire all or substantially all of the assets of, or a majority of the Voting Stock of, another Permitted Business;; or
(3) to make capital expenditures;
(4iii) to acquire other long-term assets that are used or useful in a Permitted Business; or
(5) for any combination of clauses (1) through (4) above. Pending the final application of any Net Proceeds, the Company may temporarily reduce revolving credit borrowings or otherwise invest the Net Proceeds in any manner that is not prohibited by this Indenture. .
(d) Any Net Proceeds from Asset Sales that are not applied or invested within such 365-day period as provided in the preceding paragraph Section 4.12(c) will constitute "Excess ProceedsEXCESS PROCEEDS." When the aggregate amount of Excess Proceeds exceeds $5.0 million within five business days thereof15.0 million, the Company will shall make an Asset Sale Offer (which offer may be made at any time within such 365-day period) to all Holders of Notes and Additional Notes, if any, and all holders of other Indebtedness that is pari passu with the Notes containing provisions similar to those set forth in this Indenture herein with respect to offers to purchase or redeem with the proceeds of sales of assets in accordance with Section 3.09 hereof to purchase purchase, on a pro rata basis, the maximum principal amount of Notes and Additional Notes, if any, and such other pari passu Indebtedness that may be purchased out of equal in amount to the Excess ProceedsProceeds (and not just the amount thereof that exceeds $15.0 million). The offer price in any Asset Sale Offer will be equal to 100% of the principal amount thereof plus accrued and unpaid interest and Additional Interest, if any, to the date of purchase, in accordance with the procedures set forth herein, and will shall be payable in cash. If any Excess Proceeds remain after consummation of an Asset Sale Offer, the Company may use those Excess Proceeds for any purpose not otherwise prohibited by this Indenture. If the aggregate principal amount of Notes and Additional Notes, if any, and other pari passu Indebtedness tendered into such Asset Sale Offer surrendered by holders thereof exceeds the amount of Excess Proceeds, the Trustee shall select the Notes and such Additional Notes and other pari passu Indebtedness to be purchased on a pro rata basis based on the principal amount of Notes and such other pari passu Indebtedness tenderedas described in Article 3 hereof. Upon completion of each Asset Sale Offer, the amount of Excess Proceeds will be reset at zero. .
(e) The Company shall comply with the requirements of Rule 14e-1 under the Exchange Act and any other securities laws and regulations thereunder to the extent those laws and regulations are applicable in connection with each repurchase of Notes pursuant to an Asset Sale Offer. To the extent that the provisions of any securities laws or regulations conflict with the Asset Sale provisions of Section 3.09 or 4.10 of this Indenture, the Company shall comply with the applicable securities laws and regulations and shall will not be deemed to have breached its obligations under those provisions of this Indenture Section 4.12 by virtue of such conflict.
Appears in 1 contract
Sources: Indenture (Gallipolis Care LLC)
Asset Sales. The Company shall not, and shall not permit any of its Restricted Subsidiaries to, consummate 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 of the assets or Equity Interests issued or sold or otherwise disposed of;
(2) the fair market value is as conclusively 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
) of the assets or Equity Interests issued or sold or otherwise disposed of and (3ii) at least 75% of the consideration therefor received in the Asset Sale by the Company or such Restricted Subsidiary is in the form of cash. For cash or Cash Equivalents; provided that for purposes of this provision, each (x) the amount of the following will be deemed to be cash:
(aA) any liabilities, liabilities (as shown on the Company's or such Restricted Subsidiary's most recent balance sheetsheet of the Company or such Subsidiary or in the notes thereto), of the Company or any Restricted such Subsidiary (other than contingent liabilities and liabilities that are by their terms subordinated to the Notes Securities or any Subsidiary Guaranteethe Guarantees) that are assumed by the transferee of any such assets pursuant to a customary novation agreement that releases the Company or such Restricted Subsidiary from further liability;
and (bB) any securities, notes securities or other obligations received by the Company or any such Restricted Subsidiary from such transferee that are immediately converted within 30 days by the Company or such Restricted Subsidiary into cash, cash (or as to which the Company or such Subsidiary has received at or prior to the extent consummation of the Asset Sale a commitment (which may be subject to customary conditions) from a nationally recognized investment, merchant or commercial bank to convert into cash received in that conversion; and
(c) any payment of Senior Debt secured by the assets sold in the Asset Sale. Within 365 or Cash Equivalents within 90 days after the receipt of any Net Proceeds from an Asset Sale, the Company may apply those Net Proceeds at its option:
(1) to repay Senior Debt and, if the Senior Debt repaid is revolving credit Indebtedness, to correspondingly reduce commitments with respect thereto;
(2) to acquire all or substantially all of the assets of, or a majority of the Voting Stock of, another Permitted Business;
(3) to make capital expenditures;
(4) to acquire other long-term assets that are used or useful in a Permitted Business; or
(5) for any combination of clauses (1) through (4) above. Pending the final application of any Net Proceeds, the Company may temporarily reduce revolving credit borrowings or otherwise invest the Net Proceeds in any manner that is not prohibited by this Indenture. Any Net Proceeds from Asset Sales that are not applied or invested as provided in the preceding paragraph will constitute "Excess Proceeds." When the aggregate amount of Excess Proceeds exceeds $5.0 million within five business days thereof, the Company will make an Asset Sale Offer to all Holders of Notes and all holders of other Indebtedness that is pari passu with the Notes containing provisions similar to those set forth in this Indenture with respect to offers to purchase or redeem with the proceeds of sales of assets in accordance with Section 3.09 hereof to purchase the maximum principal amount of Notes and such other pari passu Indebtedness that may be purchased out of the Excess Proceeds. The offer price in any Asset Sale Offer will be equal to 100% of principal amount plus accrued and unpaid interest and Additional Interest, if any, to the date of purchase, and will be payable in cash. If any Excess Proceeds remain after consummation of an Asset Sale Offer, the Company may use those Excess Proceeds for any purpose not otherwise prohibited by this Indenture. If the aggregate principal amount of Notes and other pari passu Indebtedness tendered into such Asset Sale Offer exceeds the amount of Excess Proceeds, the Trustee and which are thereafter actually converted into cash or Cash Equivalents within such 90-day period) shall select the Notes and such other pari passu Indebtedness be deemed to be purchased on a pro rata basis based on the principal amount of Notes and such other pari passu Indebtedness tendered. Upon completion of each Asset Sale Offer, the amount of Excess Proceeds will be reset at zero. The Company shall comply with the requirements of Rule 14e-1 under the Exchange Act and any other securities laws and regulations thereunder to the extent 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 4.10 of this Indenture, the Company shall comply with the applicable securities laws and regulations and cash (but shall not be deemed to have breached its obligations under those be Net Proceeds for purposes of the following provisions until reduced to cash) and (y) the fair market value of this Indenture any Non-Cash Consideration received by virtue Beve▇▇▇ ▇▇ a Subsidiary in any Non-Qualified Asset Sale shall be deemed to be cash to the extent that the aggregate fair market value (as conclusively determined by resolution of such conflict.the Board of Directors set forth in any Officers' Certif-
Appears in 1 contract
Asset Sales. The Company shall not, and 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 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 set forth in an Officers' Certificate delivered to the Trustee; and
) of the assets or Equity Interests issued or sold or otherwise disposed of and (3ii) at least 75% of the consideration therefor received in the Asset Sale by the Company or such Restricted Subsidiary is in the form of cash. For purposes cash and/or Marketable Securities; PROVIDED that the amount of this provision, each of the following will be deemed to be cash:
(ax) any liabilities, liabilities (as shown on the Company's or such Restricted Subsidiary's most recent balance sheetsheet or in the notes thereto), of the Company or any Restricted Subsidiary (other than contingent liabilities and liabilities that are by their terms subordinated to the Notes 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 such 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 immediately converted within 30 days by the Company or such Restricted Subsidiary into cash, cash (to the extent of the cash received), will be deemed to be cash for purposes of this provision; PROVIDED FURTHER, that the 75% limitation referred to above shall not apply to any sale, transfer or other disposition of assets in which the cash portion of the consideration received in therefor is equal to or greater than the after-tax net cash proceeds that conversion; and
(c) any payment of Senior Debt secured would have been received by the Company had a transaction involving the same assets sold complied with the aforementioned 75% limitation but was not structured with the same tax benefits as the actual transaction, as certified in the Asset Salean Officers' Certificate. Within 365 367 days after the receipt of any Net Proceeds from an Asset Sale, the Company or any Restricted Subsidiary may apply those such Net Proceeds at its option:
(1a) to repay permanently reduce long-term Indebtedness of a Restricted Subsidiary that is not a Guaranteeing Subsidiary, (b) to permanently reduce Senior Debt (and, if in the Senior Debt repaid is case of revolving credit Indebtedness, to correspondingly permanently reduce the commitments) of the Company or any Guaranteeing Subsidiary, (c) to cash collateralize letters of credit under the New Credit Facility and concurrently therewith permanently reduce commitments with respect thereto;
(2) under the New Credit Facility by an amount equal to acquire all or substantially all of the assets of, or a majority of the Voting Stock of, another Permitted Business;
(3) to make capital expenditures;
(4) to acquire other long-term assets that are used or useful in a Permitted Business; or
(5) for any combination of clauses (1) through (4) above. Pending the final application of any Net Proceeds, the Company may temporarily reduce revolving credit borrowings or otherwise invest the Net Proceeds applied to such cash collateralization (PROVIDED that any such cash collateral released to the Company and/or its Restricted Subsidiaries upon the expiration of such letters of credit is applied in any manner that is accordance with clause (a), (b) or (d) of this sentence not prohibited later than the last to occur of (i) 367 days after the original receipt of such Net Proceeds and (ii) 90 days after such release), or (d) to an investment in another business, the making of a capital expenditure or the acquisition of other tangible assets, product distribution rights or intellectual property or rights thereto, in each case, in a line of business permitted by this IndentureSection 4.17 hereof. Any Net Proceeds from Asset Sales that are not applied or invested as provided in the preceding sentence of this paragraph will constitute shall be deemed to constitute, "Excess Proceeds." When the aggregate amount of Excess Proceeds exceeds $5.0 million within five business days thereof15.0 million, the Company will be required to make an Asset Sale Offer offer to all Holders of Notes and all holders of other Indebtedness that is pari passu with the Notes containing provisions similar to those set forth in this Indenture with respect to offers to purchase or redeem with the proceeds of sales of assets in accordance with Section 3.09 hereof (an "Asset Sale Offer") to purchase the maximum principal amount of Notes and such other pari passu Indebtedness that may be purchased out of the Excess Proceeds. The , at an offer price in any Asset Sale Offer will be cash in an amount equal to 100% of the principal amount thereof plus accrued and unpaid interest and Additional InterestLiquidated Damages, if any, thereon to the date of purchase, and will be payable in cashaccordance with the procedures set forth in Section 3.09 hereof. If any Excess Proceeds remain after consummation To the extent that the aggregate amount of Notes tendered pursuant to an Asset Sale OfferOffer is less than the Excess Proceeds, the Company or any Restricted Subsidiary may use those any remaining Excess Proceeds for any purpose not otherwise prohibited by under this Indenture. If the aggregate principal amount of Notes and other pari passu Indebtedness tendered into such Asset Sale Offer surrendered by Holders thereof exceeds the amount of Excess Proceeds, the Trustee shall select the Notes and such other pari passu Indebtedness to be purchased on a pro rata basis based on the principal amount of Notes and such other pari passu Indebtedness tenderedbasis. Upon completion of each such Asset Sale Offer, the amount of Excess Proceeds will shall be reset at zero. The Notwithstanding the two immediately preceding paragraphs, the Company and the Restricted Subsidiaries will be permitted to consummate an Asset Sale without complying with such paragraphs to the extent (i) at least 75% of the consideration received in connection with such Asset Sale constitutes Replacement Assets or a combination of Replacement Assets and cash and (ii) such Asset Sale is for fair market value (which, in the case of any Replacement Assets the fair market value of which exceeds $3.0 million, will be evidenced by the opinion of an accounting, appraisal or investment banking firm of national standing delivered to the Trustee); PROVIDED that any Net Proceeds in the form of cash received by the Company or any of its Restricted Subsidiaries in connection with any Asset Sale permitted to be consummated pursuant to this paragraph shall be subject to the provisions of the immediately preceding paragraph. An Asset Sale Offer shall be made pursuant to the provisions of Section 3.09 hereof. No later than the date which is five (5) Business Days after the date on which the aggregate amount of Excess Proceeds exceeds $15.0 million, the Company shall comply notify the Trustee of such Asset Sale Offer in accordance with Section 3.09 hereof and commence or cause to be commenced the requirements of Asset Sale Offer on a date no later than fifteen (15) Business Days after such notice (the "Commencement Date"). The Asset Sale Offer shall be made by the Company in compliance with all applicable laws, including, without limitation, Rule 14e-1 under the Exchange Act and any other securities laws and regulations thereunder the rules thereunder, to the extent those laws applicable, and regulations are all other applicable in connection with each repurchase of Notes pursuant to an Asset Sale Offer. To the extent that the provisions of any federal and state securities laws or regulations conflict with the provisions of Section 3.09 or 4.10 of this Indenture, the Company shall comply with the applicable securities laws and regulations and shall not be deemed to have breached its obligations under those provisions of this Indenture by virtue of such conflictlaws.
Appears in 1 contract
Sources: Indenture (Advanced Medical Inc)
Asset Sales. (a) The Company shall will not, and shall 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 Fair Market Value 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 set forth in an Officers' Certificate delivered to the Trustee; and
(32) at least 75% of the consideration received in the Asset Sale by the Company or such Restricted Subsidiary is in the form of cashcash or Cash Equivalents. provided, however, that any Asset Sale pursuant to an Involuntary Transfer shall not be required to satisfy the conditions set forth in clauses (1) and (2) of this Section 4.13(a). For purposes of this provision, each of the following will be deemed to be cash:
(aA) any liabilities, as shown on the Company's or such Restricted Subsidiary's ’s most recent consolidated balance sheet, of the Company or any Restricted Subsidiary (other than contingent liabilities and liabilities that are by their terms subordinated to the Notes or any Subsidiary Note Guarantee) that are assumed by the transferee of any such assets pursuant to a customary novation agreement that releases the Company or such Restricted Subsidiary from further liability;
(bB) any securities, notes or other obligations received by the Company or any such Restricted Subsidiary from such transferee that are contemporaneously, subject to ordinary settlement periods, converted within 30 days by the Company or such Restricted Subsidiary into cash, to the extent of the cash received in that conversion; and
(cC) any payment stock or assets of Senior Debt secured by the assets sold kind referred to in the Asset Sale. clauses (2) or (4) of Section 4.13(b).
(b) 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 apply those such Net Proceeds at its optionProceeds:
(1) to repay Senior Debt andprepay, repay, redeem or purchase Indebtedness of the Company that ranks senior or pari passu with the Notes; provided, however, that, in connection with any prepayment, repayment, redemption or purchase of Indebtedness pursuant to this clause (1), the Company or such Restricted Subsidiary will retire such Indebtedness and will cause the related commitment (if any) to be permanently reduced in an amount equal to the Senior Debt principal amount so prepaid, repaid is revolving credit Indebtedness, to correspondingly reduce commitments with respect theretoor purchased;
(2) to acquire all or substantially all of the assets of, or a majority of the Voting any Capital Stock of, another Permitted Business, if, after giving effect to any such acquisition of Capital Stock, the Permitted Business is or becomes a Restricted Subsidiary of the Company;
(3) to make a capital expenditures;expenditure; or
(4) to acquire other long-term assets that are not classified as current assets under GAAP and that are used or useful in a Permitted Business; or
(5) for any combination of clauses (1) through (4) above. Pending the final application of any Net Proceeds, the Company may temporarily reduce revolving credit borrowings or otherwise invest the Net Proceeds in any manner that is not prohibited by this Indenture. .
(c) Any Net Proceeds from Asset Sales that are not applied or invested as provided in the preceding paragraph Section 4.13(b) hereof will constitute "“Excess Proceeds." ” When the aggregate amount of Excess Proceeds exceeds $5.0 million 10.0 million, the Company will, within five business days thereof, the Company will make an Asset Sale Offer to all Holders of Notes and all holders of other Indebtedness that is pari passu with the Notes containing provisions similar to those set forth in this Indenture with respect to offers to purchase or redeem with the proceeds of sales of assets in accordance with Section 3.09 hereof to purchase the maximum principal amount of Notes and such other pari passu Indebtedness that may be purchased out of the Excess Proceeds. .
(d) The offer price in any Asset Sale Offer will be equal to 100% of the principal amount of, plus accrued and unpaid interest and Additional Intereston, if any, to any Notes purchased in the date of purchase, Asset Sale Offer and will be payable in cash. .
(e) If any Excess Proceeds remain after consummation of an Asset Sale Offer, the Company may use those Excess Proceeds for any purpose not otherwise prohibited by this Indenture. If the aggregate principal amount of Notes and other pari passu Indebtedness tendered into such Asset Sale Offer exceeds the amount of Excess Proceeds, the Trustee shall Company will select the Notes and such other pari passu Indebtedness to be purchased on a pro rata basis based on the principal amount of or as otherwise required by Applicable Procedures (subject to adjustment so that Notes and or such other pari passu Indebtedness tenderedare not purchased in part in an unauthorized denomination). Upon completion of each Asset Sale Offer, the amount of Excess Proceeds will be reset at zero. The Company shall comply with the requirements of Rule 14e-1 under the Exchange Act and any other securities laws and regulations thereunder to the extent 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 4.10 of this Indenture, the Company shall comply with the applicable securities laws and regulations and shall not be deemed to have breached its obligations under those provisions of this Indenture by virtue of such conflict.
Appears in 1 contract
Sources: Indenture (ZaZa Energy Corp)
Asset Sales. (a) The Company shall will not, and shall 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 such Asset Sale at least equal to the fair market value Fair Market Value of the assets or Equity Interests issued or sold or otherwise disposed of;
(2) 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; and
(32) at least 75% of the aggregate consideration received in the respect of such Asset Sale and all other Asset Sales since the Issue Date by the Company or such and its Restricted Subsidiary Subsidiaries is in the form of cash. For cash or Cash Equivalents, provided that, for purposes of this provision, each of the following will be deemed to be cash:
(ai) any liabilities, as shown on the Company's or such Restricted Subsidiary's ’s most recent consolidated balance sheet, of the Company or any Restricted Subsidiary (other than contingent liabilities liabilities, Subordinated Debt and liabilities that are by their terms subordinated to the Notes or any Subsidiary Guaranteeobligations in respect of preferred stock) that are assumed by the transferee of any such assets or Equity Interests pursuant to a customary novation agreement agreements (or other legal documentation with the same effect) that releases the Company or such Restricted Subsidiary from further liabilityany and all liability therefor;
(bii) 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 such Restricted Subsidiary into cashcash within 180 days after the date of the Asset Sale, except for any such securities, notes or other obligations that are subject to a contractual lock-up in which case such securities, notes or other obligations are converted by the Company or such Restricted Subsidiary into cash within 90 days after the date of the expiration of the contractual lock-up, to the extent of the cash received in that conversion; and
(c) any payment of Senior Debt secured by the assets sold in the Asset Sale. Within 365 days after the receipt of any Net Proceeds from an Asset Sale, the Company may apply those Net Proceeds at its option:
(1) to repay Senior Debt and, if the Senior Debt repaid is revolving credit Indebtedness, to correspondingly reduce commitments with respect thereto;
(2iii) to acquire all or substantially all of the assets of, or a majority of the Voting Stock of, another Permitted Business;
(3) to make capital expenditures;
(4) to acquire other long-term assets that are used or useful in a Permitted Business; or
(5) for any combination of clauses (1) through (4) above. Pending the final application of any Net Proceeds, the Company may temporarily reduce revolving credit borrowings or otherwise invest the Net Proceeds in any manner that is not prohibited by this Indenture. Any Net Proceeds from Asset Sales that are not applied or invested as provided in the preceding paragraph will constitute "Excess Proceeds." When the aggregate amount of Excess Proceeds exceeds $5.0 million within five business days thereof, the Company will make an Asset Sale Offer to all Holders of Notes and all holders of other Indebtedness that is pari passu with the Notes containing provisions similar to those set forth in this Indenture with respect to offers to purchase or redeem with the proceeds of sales of assets in accordance with Section 3.09 hereof to purchase the maximum principal amount of Notes and such other pari passu Indebtedness that may be purchased out of the Excess Proceeds. The offer price in any Asset Sale Offer will be equal to 100% of principal amount plus accrued oil and unpaid natural gas properties where the Company or such Restricted Subsidiary retains an interest in such property, the aggregate costs and Additional Interest, if any, expenses of the Company or such Restricted Subsidiary related to the date of purchaseexploration, and will be payable in cash. If any Excess Proceeds remain after consummation of an Asset Sale Offerdevelopment, the Company may use those Excess Proceeds for any purpose not otherwise prohibited by this Indenture. If the aggregate principal amount of Notes and other pari passu Indebtedness tendered into such Asset Sale Offer exceeds the amount of Excess Proceeds, the Trustee shall select the Notes and such other pari passu Indebtedness to be purchased on a pro rata basis based on the principal amount of Notes and such other pari passu Indebtedness tendered. Upon completion of each Asset Sale Offer, the amount of Excess Proceeds will be reset at zero. The Company shall comply with the requirements of Rule 14e-1 under the Exchange Act and any other securities laws and regulations thereunder to the extent 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 4.10 of this Indenture, the Company shall comply with the applicable securities laws and regulations and shall not be deemed to have breached its obligations under those provisions of this Indenture by virtue production of such conflict.properties and activities related thereto which the transferee (or an Affiliate thereof) agrees to pay; and
Appears in 1 contract
Sources: Indenture (Triangle Petroleum Corp)
Asset Sales. The Company shall not, and shall not permit any of its Restricted Subsidiaries to, 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 of the assets or Equity Interests issued or sold or otherwise disposed of;
; (2ii) the fair market value is determined by (a) an executive officer of the Company if the value is less than $20.0 million and evidenced by an Officer’s Certificate delivered to the Trustee or (b) the Company's ’s Board of Directors if the value is $20.0 million or more and evidenced by a resolution of the such Board of Directors set forth in an Officers' Certificate delivered to the Trustee; and
and (3iii) at least 75% of the consideration received in the Asset Sale by the Company or such Restricted Subsidiary is in the form of cashcash or Cash Equivalents or any combination thereof. For purposes of this provision, Section 4.10 each of the following will shall be deemed to be cash:
: (a) any liabilities, liabilities (as shown on the Company's ’s or such Restricted Subsidiary's ’s most recent balance sheet, ) of the Company or any Restricted Subsidiary (other than contingent liabilities and liabilities that are by their terms subordinated to the Notes or any Subsidiary Guarantee) that are assumed by the transferee of any such assets pursuant to a customary novation agreement that releases the Company or 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 converted within 30 days by the Company or such Restricted Subsidiary into cashcash or Cash Equivalents within 180 days following the closing of such Asset Sale, to the extent of the cash or Cash Equivalents received in that conversion; and
(c) any payment of Senior Debt secured by the assets sold in the Asset Sale. Within 365 days after the receipt of any Net Proceeds from an Asset Sale, the Company may apply those such Net Proceeds at its option:
option (1i) to repay repay, repurchase, redeem, defease or otherwise acquire or retire Senior Debt and, if of the Senior Debt repaid is revolving credit Indebtedness, to correspondingly reduce commitments with respect thereto;
Company or any Indebtedness of a Restricted Subsidiary; (2ii) to acquire all or substantially all of the assets of, or a majority of the Voting Stock of, another Permitted Business;
; (3iii) to make a capital expenditures;
expenditure in a Permitted Business; or (4iv) to acquire other long-term assets that are used or useful in a Permitted Business; or
(5) for any combination of clauses (1) through (4) above. Pending the final application of any such Net Proceeds, the Company may temporarily reduce revolving credit borrowings or otherwise invest the such Net Proceeds in any manner that is not prohibited by this Indenture. Any Net Proceeds from Asset Sales that are not applied or invested as provided in the preceding paragraph will constitute "“Excess Proceeds." ” When the aggregate amount of Excess Proceeds exceeds $5.0 million within five business days thereof20.0 million, the Company will be required to make an offer (an “Asset Sale Offer Offer”) to all Holders of Notes and to the extent required, to all holders of other Indebtedness of the Company that is pari passu with the Notes containing provisions similar to those set forth in this Indenture with respect to offers to purchase or redeem with the proceeds of sales of assets in accordance with Section 3.09 hereof assets, to purchase the maximum principal amount of Notes (in integral multiples of $1,000) and such other pari passu Indebtedness of the Company that may be purchased out of the Excess Proceeds. The offer price in any Asset Sale Offer will be equal to 100% of the principal amount of Notes and other pari passu Indebtedness to be purchased or the lesser amount required under agreements governing such other pari passu Indebtedness, plus accrued and unpaid interest and Additional Interest, if any, to the date of purchase, and will be payable in cash. If any Excess Proceeds remain after consummation of an Asset Sale Offer, the Company may use those Excess Proceeds for any purpose not otherwise prohibited by this Indenture. If the aggregate principal amount of Notes and other pari passu Indebtedness tendered into such Asset Sale Offer exceeds the amount of Excess Proceeds, the Trustee shall will select the Notes and such other pari passu Indebtedness to be purchased on a pro rata basis based on the principal amount of Notes and such other pari passu Indebtedness tenderedbasis. Upon completion of each Asset Sale Offer, the amount of Excess Proceeds will be reset at zero. The Company shall will comply with the requirements of Rule 14e-1 under the Exchange Act and any other securities laws and regulations thereunder to the extent those such laws and regulations are applicable in connection with each 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 Section 3.09 or 4.10 of this Indenturecovenant, the Company shall will comply with the applicable securities laws and regulations and shall will not be deemed to have breached its obligations under those provisions of this Indenture covenant by virtue of such conflict.
Appears in 1 contract
Sources: Indenture (Parker Drilling Co /De/)
Asset Sales. The Company shall not, and 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 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 set forth in an Officers' Certificate delivered to the Trustee; and
) of the assets or Equity Interests issued or sold or otherwise disposed of and (3ii) at least 75% of the consideration therefor received in the Asset Sale by the Company or such Restricted Subsidiary is in the form of cash. For purposes cash or Cash Equivalents; provided that the amount of this provision, each of the following will be deemed to be cash:
(ax) any liabilities, liabilities (as shown on the Company's or such Restricted Subsidiary's most recent balance sheet, ) or Indebtedness of the Company or any Restricted Subsidiary (other than contingent liabilities and liabilities that are by their terms subordinated to the Notes or any Subsidiary Guaranteeguarantee thereof) that are assumed by the transferee of any such assets pursuant to a customary novation agreement that releases the Company or 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 within 30 days by the Company or such Restricted Subsidiary into cash, cash (to the extent of the cash received in that conversion; and
(c) any payment received), shall be deemed to be cash for purposes of Senior Debt secured by the assets sold in the Asset Salethis paragraph. Within 365 360 days after the receipt of any Net Proceeds Available Cash from an any Asset Sale, the Company may or any Restricted Subsidiary shall apply those such Net Proceeds Available Cash, at its option:
, (1a) 41 42 to repay Senior Debt and, if the Senior Debt repaid is revolving credit Indebtedness, (and to correspondingly reduce commitments with respect thereto;
thereto in the case of revolving borrowings) of the Company or any Restricted Subsidiary or, in the case of any Asset Sale involving assets of any Restricted Subsidiary that is not a Guarantor, to repay any Indebtedness of such Restricted Subsidiary, or (2b) to acquire all or substantially all invest in assets and property (other than notes, bonds, obligations and securities) which in the good faith judgment of the assets of, or a majority Board of Directors of the Voting Stock of, another Permitted Business;
(3) to make capital expenditures;
(4) to acquire other long-term assets that are used Company will constitute or useful in be a Permitted Business; or
(5) for any combination part of clauses (1) through (4) abovea Gaming Business immediately following such transaction. Pending the final application of any such Net ProceedsAvailable Cash, the Company may temporarily reduce revolving credit borrowings Senior Debt or otherwise invest the such Net Proceeds Available Cash in any manner that is not prohibited by this Indenture. Notwithstanding the foregoing provisions of this paragraph, the Company and its Restricted Subsidiaries shall not be required to apply any Net Available Cash in accordance with this paragraph except to the extent that the aggregate Net Available Cash from all Asset Sales which is not applied in accordance with this paragraph exceeds $5.0 million. Any Net Proceeds Available Cash (other than Net Available Cash not so applied pursuant to the preceding sentence) from Asset Sales that are is not applied or invested as provided in the preceding first sentence of this paragraph will be deemed to constitute "Excess Proceeds." When the aggregate amount of Excess Proceeds exceeds $5.0 million within five business days thereof10.0 million, the Company will be required to make an Asset Sale Offer offer to all Holders of Notes and all holders of other Indebtedness that is pari passu with the Notes containing provisions similar to those set forth in this Indenture with respect to offers to purchase or redeem with the proceeds of sales of assets in accordance with Section 3.09 hereof (an "Asset Sale Offer") to purchase the maximum principal amount of Notes and such other pari passu Indebtedness that may be purchased out of the Excess Proceeds. The , at an offer price in any Asset Sale Offer will be cash in an amount equal to 100% of the principal amount thereof plus accrued and unpaid interest and Additional InterestLiquidated Damages thereon, if any, to the date of purchase, and will be payable in cashaccordance with the procedures set forth in this Indenture. If any Excess Proceeds remain after consummation To the extent that the aggregate amount of Notes tendered pursuant to an Asset Sale OfferOffer is less than the Excess Proceeds, the Company and any Restricted Subsidiary may use those any remaining Excess Proceeds for any purpose not otherwise prohibited by this Indenturegeneral corporate purposes. If the aggregate principal amount of Notes and other pari passu Indebtedness tendered into such Asset Sale Offer surrendered by Holders thereof exceeds the amount of Excess Proceeds, the Trustee shall select the Notes and such other pari passu Indebtedness to be purchased on a pro rata basis based on the principal amount of Notes and such other pari passu Indebtedness tenderedbasis. Upon completion of each Asset Sale Offersuch offer to purchase, the amount of Excess Proceeds will shall be reset at zero. The Company shall comply with the requirements of Rule 14e-1 under the Exchange Act and any other securities laws and regulations thereunder to the extent 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 4.10 of this Indenture, the Company shall comply with the applicable securities laws and regulations and shall not be deemed to have breached its obligations under those provisions of this Indenture by virtue of such conflict.
Appears in 1 contract
Sources: Indenture (Alliance Gaming Corp)
Asset Sales. The Company Issuers shall not, and shall not permit any of its their Restricted Subsidiaries to, consummate an Asset Sale unless:
Sale, unless (1w) no Default or Event of Default exists or is continuing immediately prior to or after giving effect to such Asset Sale, (x) the Company (Issuers, or the their Restricted SubsidiarySubsidiaries, as the case may be) receives , receive consideration at the time of the such Asset Sale at least equal to the fair market value of the assets or Equity Interests issued or sold or otherwise disposed of;
(2) the fair market value is as 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 Mortgage Note Trustee; and
) of the assets sold or otherwise disposed of and (3y) at least 7585% of the consideration therefor received in by either of the Asset Sale by Issuers or any Restricted Subsidiary, as the Company or such Restricted Subsidiary case may be, is in the form of cash. For purposes cash or Cash Equivalents; provided, however, that the amount of this provision, each of the following will be deemed to be cash:
(aA) any liabilities, liabilities (as shown on the Company's such Issuers', or such Restricted Subsidiary's 's, as the case may be, most recent balance sheet, sheet or in the notes thereto) of the Company Issuers, or any such Restricted Subsidiary Subsidiary, as the case may be (other than contingent liabilities and liabilities that are by their terms expressly subordinated to the Mortgage Notes or any Subsidiary Guarantee) Mortgage Note Guaranty), that are assumed by the transferee of any such assets pursuant to a customary novation agreement that releases the Company or such Restricted Subsidiary from further liability;
and (bB) any securities, notes or other obligations received by the Company Issuers, or any such Restricted Subsidiary Subsidiary, as the case may be, from such transferee that are converted within 30 days by the Company Issuers, or such Restricted Subsidiary Subsidiary, as the case may be, into cash, cash (to the extent of the cash received in that conversion; and
(creceived) any payment within 20 Business Days following the closing of Senior Debt secured by the assets sold in the such Asset Sale, shall be deemed to be cash only for purposes of satisfying clause (y) of this Section 4.10 and for no other purpose. Within 365 180 days after the any such Issuer's or any Restricted Subsidiary's receipt of the Net Proceeds of any Asset Sale, any such Issuer or such Restricted Subsidiary may apply the Net Proceeds from an such Asset Sale, the Company may apply those Net Proceeds at its option:
Sale (1i) to repay Senior Debt and, if permanently reduce Indebtedness under the Senior Debt repaid Bank Credit Facility or other Indebtedness that is revolving credit not Subordinated Indebtedness, to correspondingly reduce commitments with respect thereto;
(2ii) to acquire all in an investment in any one or substantially all more business, capital expenditure or other tangible asset of the assets ofIssuers or any Restricted Subsidiary, or a majority of the Voting Stock ofin each case, another Permitted Business;
(3) to make capital expenditures;
(4) to acquire other long-term assets that are engaged, used or useful in a Permitted the Principal Business; or
, or (5iii) for working capital purposes in an aggregate amount not to exceed $20.0 million, in each case, with no concurrent obligation to make an offer to purchase any combination of clauses (1) through (4) aboveMortgage Notes. Pending the final application of any such Net Proceeds, the Company such Issuer or such Restricted Subsidiary may temporarily reduce Indebtedness under the Bank Credit Facility or another revolving credit borrowings facility, if any, or otherwise invest the such Net Proceeds in any manner Cash Equivalents which shall be pledged to the Mortgage Note Trustee or an agent thereof (including an agent under the Bank Credit Facility) as security for the holders of Mortgage Notes with the same relative priority with respect to the other secured creditors as the priority of the Liens securing the asset that is the subject of the Asset Sale, except (i) such Cash Equivalents shall be pledged to the Disbursement Agent as security for the Lenders prior to Completion and (ii) such Cash Equivalents need not prohibited by this Indenturebe pledged to the Mortgage Note Trustee or an agent thereof (including an agent under the Bank Credit Facility) to the extent that the assets subject to such Asset Sale were not subject to Liens securing the Note Collateral prior to such Asset Sale. Any Net Proceeds from the Asset Sales Sale that are not applied invested or invested used to repay Indebtedness or as working capital within 180 days of receipt as provided in the preceding first sentence of this paragraph will shall be deemed to constitute "Excess Proceeds." When the aggregate amount of Excess Proceeds exceeds $5.0 million within five business days thereof10.0 million, the Company will Issuers shall, subject to any repayment obligations owed to the lenders under the Bank Credit Facility and the Mall Construction Lender, make an Asset Sale Offer offer to all Holders of Mortgage Notes and all holders of other Indebtedness that is pari passu with the Notes containing provisions similar to those set forth in this Indenture with respect to offers to purchase or redeem with the proceeds of sales of assets in accordance with Section 3.09 hereof (an "Asset Sale Offer") to purchase the maximum principal amount of Notes and such other pari passu Indebtedness Mortgage Notes, that is an integral multiple of $1,000, that may be purchased out of the Excess Proceeds. The Proceeds at an offer price in any Asset Sale Offer will be cash in an amount equal to 100101% of the principal amount thereof, plus accrued and unpaid interest and Additional InterestLiquidated Damages, if any, to the date fixed for the closing of purchasesuch offer, and will be payable in cashaccordance with the procedures set forth in Section 3.10 hereof. If any Excess Proceeds remain after consummation To the extent that the aggregate amount of Mortgage Notes tendered pursuant to an Asset Sale OfferOffer is less than the applicable Excess Proceeds, the Company Issuers may use those any remaining Excess Proceeds for any purpose not otherwise prohibited by this general corporate purposes or to offer to redeem Senior Subordinated Notes pursuant to the provisions of Section 3.10 of the Senior Subordinated Note Indenture. If the aggregate principal amount of Mortgage Notes and other pari passu Indebtedness tendered into such Asset Sale Offer surrendered by Holders thereof exceeds the amount of Excess ProceedsProceed, the Mortgage Note Trustee shall select the Mortgage Notes and such other pari passu Indebtedness to be purchased on a pro rata basis based on the principal amount of Notes in accordance with Section 3.02 and such other pari passu Indebtedness tendered3.03 hereof. Upon completion of each any such Asset Sale Offer, the amount of Excess Proceeds will shall be deemed reset at zero. The Company Issuers or such Restricted Subsidiary shall comply grant (i) to the lenders under the Bank Credit Facility a first priority lien and (ii) to the Mortgage Note Trustee, on behalf of the holders of the Mortgage Notes, a second priority lien, in each case, on any properties or assets acquired with the requirements Net Proceeds of Rule 14e-1 under the Exchange Act and any other securities laws and regulations thereunder such Asset Sale to the extent those laws and regulations are applicable in connection with each repurchase of Notes pursuant that the assets subject to an such Asset Sale Offerwere subject to Liens securing the Note Collateral prior to such Asset Sale. To the extent that any assets subject to an Asset Sale were subject to Liens securing the provisions Mall Collateral prior to such Asset Sale, the Issuers or such Restricted Subsidiary shall grant (i) to the Mall Construction Lender a first priority lien, (ii) to the lenders under the Bank Credit Facility a second priority lien and (iii) to the Mortgage Note Trustee, on behalf of the Holders of the Mortgage Notes, a third priority lien, in each case, on any property or assets acquired with the Net Proceeds of any securities laws or regulations conflict with the provisions of Section 3.09 or 4.10 of this Indenture, the Company shall comply with the applicable securities laws and regulations and shall not be deemed to have breached its obligations under those provisions of this Indenture by virtue of such conflictAsset Sale.
Appears in 1 contract
Sources: Indenture (Grand Canal Shops Mall Construction LLC)
Asset Sales. (a) The Company shall will not, and shall will 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 (evidenced by a resolution of the Board of Directors or a committee of the Board of Directors having at least one Independent director, set forth in an Officers' Certificate delivered to the Trustee, or by an independent appraisal by an accounting, appraisal or investment banking firm of national standing) of the assets or Equity Interests issued or sold or otherwise disposed of;
of and (2) 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; and
(3ii) at least 75% of the consideration therefor received in the Asset Sale by the Company or such Restricted Subsidiary is in the form of cash. For purposes of this provision, each of the following will be deemed to be cash:
(a) any liabilities, as shown on the Company's or such Restricted Subsidiary's most recent balance sheet, of the Company or any Restricted Subsidiary (other than contingent liabilities and liabilities that are by their terms subordinated to the Notes or any Subsidiary Guarantee) that are assumed by the transferee of any such assets pursuant to a customary novation agreement that releases the Company or such Restricted Subsidiary from further liability;.
(b) any securities, notes or other obligations received by the Company or any such Restricted Subsidiary from such transferee that are converted within 30 days by the Company or such Restricted Subsidiary into cash, to the extent of the cash received in that conversion; and
(c) any payment of Senior Debt secured by the assets sold in the Asset Sale. Within 365 days after the receipt of any Net Proceeds from an Asset Sale, the Company may apply those such Net Proceeds Proceeds, at its option:
, (1i) to repay permanently reduce Senior Debt and, if the Senior Debt repaid is revolving credit Indebtedness, to Indebtedness (and correspondingly reduce commitments with respect thereto;
thereto in the case of any reduction of borrowings under the Credit Agreement), (2ii) to acquire all the acquisition of a controlling interest in another business, the making of a capital expenditure or substantially all the acquisition of the assets of, or a majority of the Voting Stock of, another Permitted Business;
(3) to make capital expenditures;
(4) to acquire other long-term assets ("Productive Assets"), in each case, in the same or a similar line of business as the Company was engaged in on the date of this Indenture or (iii) to reimburse the Company or its subsidiaries for expenditures made, and costs incurred, to repair, rebuild, replace or restore property subject to loss, damage or taking to the extent that are used the net proceeds consist of insurance proceeds received on account of such loss, damage or useful in a Permitted Business; or
(5) for any combination of clauses (1) through (4) abovetaking. Pending the final application of any such Net Proceeds, the Company may temporarily reduce revolving credit borrowings Senior Indebtedness or otherwise invest the such Net Proceeds in any manner that is not prohibited by this Indenture. Any Net Proceeds from Asset Sales that are not applied or invested as provided in the preceding paragraph first sentence of this clause (b) will be deemed to constitute "Excess Proceeds." When the aggregate amount of Excess Proceeds exceeds $5.0 million within five business days thereofmillion, the Company will be required to make an Asset Sale Offer offer to all Holders of Notes and all holders of other Indebtedness that is pari passu with the Notes containing provisions similar to those set forth in this Indenture with respect to offers to purchase or redeem with the proceeds of sales of assets in accordance with Section 3.09 hereof (an "Asset Sale Offer") to purchase the maximum principal amount of Notes and such other pari passu Indebtedness that may be purchased out of the Excess Proceeds. The , at an offer price in any Asset Sale Offer will be cash in an amount equal to 100% of the principal amount thereof plus accrued and unpaid interest and Additional Interest, if any, Liquidated Damages thereon to the date of purchase, and will be payable in cashaccordance with the procedures set forth in this Indenture. If any Excess Proceeds remain after consummation To the extent that the aggregate amount of Notes tendered pursuant to an Asset Sale OfferOffer is less than the Excess Proceeds, the Company may use those any remaining Excess Proceeds for any purpose not otherwise prohibited by this Indenturegeneral corporate purposes. If the aggregate principal amount of Notes and other pari passu Indebtedness tendered into such Asset Sale Offer surrendered by Holders thereof exceeds the amount of Excess Proceeds, the Trustee shall select the Notes and such other pari passu Indebtedness to be purchased on a pro rata basis based on the principal amount of Notes and such other pari passu Indebtedness tenderedPRO RATA basis. Upon completion of each Asset Sale Offersuch offer to purchase, the amount of Excess Proceeds will shall be reset at zero. .
(c) The Company shall will comply with the requirements of Rule 14e-1 under the Exchange Act and any other securities laws and regulations thereunder to the extent those such laws and regulations are applicable in connection with each the repurchase of Notes pursuant to an Asset Sale Offer. To .
(d) Notwithstanding subsections (a), (b), and (c), the extent Company and its Subsidiaries will be permitted to consummate one or more Asset Sales with respect to assets or properties with an aggregate fair market value not in excess of $5.0 million in the aggregate since the date of this Indenture without complying with clause (ii) of subsection (a); PROVIDED that (y) at least 75% of the consideration for such Asset Sale constitutes either Productive Assets or cash, and (z) any Net Proceeds received by the Company or any of its Subsidiaries in connection with any Asset Sale permitted to be consummated under this clause (d) shall be subject to the provisions of any securities laws or regulations conflict with the provisions of Section 3.09 or 4.10 clauses (b) and (c) of this Indenture, the Company shall comply with the applicable securities laws and regulations and shall not be deemed to have breached its obligations under those provisions of this Indenture by virtue of such conflictcovenant.
Appears in 1 contract
Sources: Indenture (Pillowtex Corp)
Asset Sales. (a) The Company shall not, and 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 Fair Market Value 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 set forth in an Officers' Certificate delivered to the Trustee; and
(32) at least 75% of the consideration received in the Asset Sale by the Company or such Restricted Subsidiary is in the form of cashcash other than in the case where the Company or such Restricted Subsidiary is undertaking a Hospital Swap. For purposes of this provision, each of the following will shall be deemed to be cash:
(aA) Cash Equivalents;
(B) any liabilities, as shown on the Company's or such Restricted Subsidiary's ’s most recent consolidated balance sheet, of the Company or any Restricted Subsidiary of the Company (other than contingent liabilities and liabilities that are by their terms subordinated to the Notes or any Subsidiary Guarantee) that are assumed by the transferee of any such assets pursuant to a customary novation agreement that releases the Company or such Restricted Subsidiary from further liability;
(bC) any securities, notes or other obligations received by the Company or any such Restricted Subsidiary from such transferee that are converted within 30 days by the Company or such Restricted Subsidiary into cashcash within 180 days of receipt, to the extent of the cash received in that conversion;
(D) any Designated Noncash Consideration the Fair Market Value of which, when taken together with all other Designated Noncash Consideration received pursuant to this clause (d) (and not subsequently converted into Cash Equivalents that are treated as Net Proceeds of an Asset Sale) does not exceed $40.0 million since the Issue Date, with the Fair Market Value of each item of Designated Noncash Consideration being measured at the time received and without giving effect to subsequent changes in value; and
(cE) any payment stock or assets of Senior Debt secured by the assets sold kind referred to in clauses (2) or (4) of Section 4.10(b) hereof. Notwithstanding the foregoing, the 75% limitation referred to in clause (2) above shall not apply to any Asset Sale. Sale in which the cash or Cash Equivalent portion of the consideration received therefrom, determined in accordance with the foregoing provision, is equal to or greater than what the after-tax proceeds would have been had such Asset Sale complied with the aforementioned 75% limitation.
(b) Within 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 apply those such Net Proceeds at its option:
(1) to repay Senior Debt and, if the Senior Debt repaid is revolving credit Indebtedness, to correspondingly reduce commitments with respect thereto;
(2) to acquire all or substantially all of the assets of, or a majority of the Voting Stock of, another Permitted Business;
(3) to make capital expenditures;
(4) to acquire other long-term assets that are used or useful in a Permitted Business; or
(5) for any combination of clauses (1) through (4) above. Pending the final application of any Net Proceeds, the Company may temporarily reduce revolving credit borrowings or otherwise invest the Net Proceeds in any manner that is not prohibited by this Indenture. Any Net Proceeds from Asset Sales that are not applied or invested as provided in the preceding paragraph will constitute "Excess Proceeds." When the aggregate amount of Excess Proceeds exceeds $5.0 million within five business days thereof, the Company will make an Asset Sale Offer to all Holders of Notes and all holders of other Indebtedness that is pari passu with the Notes containing provisions similar to those set forth in this Indenture with respect to offers to purchase or redeem with the proceeds of sales of assets in accordance with Section 3.09 hereof to purchase the maximum principal amount of Notes and such other pari passu Indebtedness that may be purchased out of the Excess Proceeds. The offer price in any Asset Sale Offer will be equal to 100% of principal amount plus accrued and unpaid interest and Additional Interest, if any, to the date of purchase, and will be payable in cash. If any Excess Proceeds remain after consummation of an Asset Sale Offer, the Company may use those Excess Proceeds for any purpose not otherwise prohibited by this Indenture. If the aggregate principal amount of Notes and other pari passu Indebtedness tendered into such Asset Sale Offer exceeds the amount of Excess Proceeds, the Trustee shall select the Notes and such other pari passu Indebtedness to be purchased on a pro rata basis based on the principal amount of Notes and such other pari passu Indebtedness tendered. Upon completion of each Asset Sale Offer, the amount of Excess Proceeds will be reset at zero. The Company shall comply with the requirements of Rule 14e-1 under the Exchange Act and any other securities laws and regulations thereunder to the extent 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 4.10 of this Indenture, the Company shall comply with the applicable securities laws and regulations and shall not be deemed to have breached its obligations under those provisions of this Indenture by virtue of such conflict.permanently repay:
Appears in 1 contract
Sources: Indenture (IASIS Healthcare LLC)
Asset Sales. (a) The Company shall will not, and shall will 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 (evidenced by a resolution of the Board of Directors or a committee of the Board of Directors, a majority of which committee consists of Independent directors, set forth in an Officers' Certificate delivered to the Trustee, or by an independent appraisal by an accounting, appraisal or investment banking firm of national standing) of the assets or Equity Interests issued or sold or otherwise disposed of;
of and (2) 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; and
(3ii) at least 7585% of the consideration therefor received in the Asset Sale by the Company or such Restricted Subsidiary is in the form of cash. For purposes of this provision, each of the following will be deemed to be cash:
(a) any liabilities, as shown on the Company's or such Restricted Subsidiary's most recent balance sheet, of the Company or any Restricted Subsidiary (other than contingent liabilities and liabilities that are by their terms subordinated to the Notes or any Subsidiary Guarantee) that are assumed by the transferee of any such assets pursuant to a customary novation agreement that releases the Company or such Restricted Subsidiary from further liability;.
(b) any securities, notes or other obligations received by the Company or any such Restricted Subsidiary from such transferee that are converted within 30 days by the Company or such Restricted Subsidiary into cash, to the extent of the cash received in that conversion; and
(c) any payment of Senior Debt secured by the assets sold in the Asset Sale. Within 365 days after the receipt of any Net Proceeds from an Asset Sale, the Company may apply those such Net Proceeds Proceeds, at its option:
, (1i) to repay Senior Debt andpermanently reduce Funded Indebtedness, if any, having a first priority lien on the Senior Debt repaid is revolving credit Indebtednessassets sold in the Asset Sale, to correspondingly reduce commitments with respect thereto;
(2ii) to acquire all the acquisition of a controlling interest in another business, the making of a capital expenditure or substantially all the acquisition of the assets of, or a majority of the Voting Stock of, another Permitted Business;
(3) to make capital expenditures;
(4) to acquire other long-term assets ("Productive Assets"), in each case, in the same or a similar line of business as the Company was engaged in on the date of this Indenture or (iii) to reimburse the Company or its subsidiaries for expenditures made, and costs incurred, to repair, rebuild, replace or restore property subject to loss, damage or taking to the extent that are used the net proceeds consist of insurance proceeds received on account of such loss, damage or useful in taking. For purposes of this Indenture the Company shall be deemed to have applied Net Proceeds to the acquisition of Productive Assets within the 365 day time period after receipt of Net Proceeds, if the Company shall have executed a Permitted Business; or
(5) for any combination definitive agreement to acquire such Productive Assets within such 365 day period and if the closing of clauses (1) through (4) abovesuch agreement shall occur during the 545 day time period after receipt of Net Proceeds. Pending the final application of any such Net Proceeds, the Company may temporarily reduce revolving credit borrowings or otherwise invest the such Net Proceeds in any manner that is not prohibited by this Indenture. Any Net Proceeds from Asset Sales that are not applied or invested as provided in the preceding paragraph first sentence of this clause (b) will be deemed to constitute "Excess Proceeds." When the aggregate amount of Excess Proceeds exceeds $5.0 million within five business days thereofmillion, the Company will be required to make an Asset Sale Offer offer to all Holders of Notes and all holders of other Indebtedness that is pari passu with the Notes containing provisions similar to those set forth in this Indenture with respect to offers to purchase or redeem with the proceeds of sales of assets in accordance with Section 3.09 hereof (an "Asset Sale Offer") to purchase the maximum principal amount of Notes and such other pari passu Indebtedness that may be purchased out of the Excess Proceeds. The , at an offer price in any Asset Sale Offer will be cash in an amount equal to 100101% of the principal amount thereof plus accrued and unpaid interest and Additional Interest, if any, thereon to the date of purchase, and will be payable in cashaccordance with the procedures set forth in this Indenture. If any Excess Proceeds remain after consummation To the extent that the aggregate amount of Notes tendered pursuant to an Asset Sale OfferOffer is less than the Excess Proceeds, the Company may use those any remaining Excess Proceeds for any purpose not otherwise prohibited by this Indenturegeneral corporate purposes. If the aggregate principal amount of Notes and other pari passu Indebtedness tendered into such Asset Sale Offer surrendered by Holders thereof exceeds the amount of Excess Proceeds, the Trustee shall select the Notes and such other pari passu Indebtedness to be purchased on a pro rata basis based on the principal amount of Notes and such other pari passu Indebtedness tenderedbasis. Upon completion of each Asset Sale Offersuch offer to purchase, the amount of Excess Proceeds will shall be reset at zero. .
(c) The Company shall will comply with the requirements of Rule 14e-1 under the Exchange Act and any other securities laws and regulations thereunder to the extent those such laws and regulations are applicable in connection with each 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 Section 3.09 or 4.10 of this Indenture, the Company shall comply with the applicable securities laws and regulations and shall not be deemed to have breached its obligations under those provisions of this Indenture by virtue of such conflict.
Appears in 1 contract
Sources: Indenture (Shop at Home Inc /Tn/)
Asset Sales.
(a) The Company shall not, and shall not permit any of its Restricted Subsidiaries Subsidiary to, consummate an Asset Sale unless::
(1) the Company (Company, or the Restricted Subsidiary, as the case may be) , receives consideration at the time of the Asset Sale at least equal to the fair market value Fair Market Value of the assets or Equity Interests issued or sold or otherwise disposed of;
(2) 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; and
(32) at least 75% of the consideration received in the such Asset Sale by the Company or such Restricted Subsidiary is in the form of cashcash or Cash Equivalents. For purposes of this provisionclause (3), each of the following will shall be deemed to be cash::
(ai) any Indebtedness or other liabilities, as shown on the Company's ’s or such Restricted Subsidiary's ’s most recent balance sheet, of the Company or any Restricted Subsidiary (other than contingent liabilities and liabilities Indebtedness that are by their terms subordinated to the Notes or any Subsidiary Guarantee) Guarantee and liabilities to the extent owed to the Company or any Affiliate of the Company), that are (i) assumed by the transferee of any such assets pursuant to a customary novation written agreement that releases the Company or such Restricted Subsidiary from further liability;liability with respect to such Indebtedness or liabilities or (ii) are otherwise discharged or forgiven by such transferee;
(ii) any Designated Non-cash Consideration received by the Company or any Restricted Subsidiary in such Asset Sale having an aggregate fair market value, taken together with all other Designated Non-cash Consideration received pursuant to this clause (b) since the Issue Date, not to exceed 5% of the Company’s Consolidated Net Tangible Assets (determined at the time of contractual agreement to the relevant Asset Sale), with the fair market value of each item of Designated Non-cash Consideration being measured at the time of contractual agreement to the relevant Asset Sale and without giving effect to subsequent changes in value; and
(iii) any securities, notes or other obligations received by the Company or any such Restricted Subsidiary from such transferee that are converted within 30 180 days of the applicable Asset Sale by the Company or such Restricted Subsidiary into cash, to the extent of the cash received in that such conversion; and.
(cb) any payment of Senior Debt secured by the assets sold in the Asset Sale. Within 365 360 days after the receipt of any Net Proceeds from an Asset Sale, the Company may apply those Net Proceeds at its option::
(1) to permanently repay Senior Debt or reduce (i) Indebtedness, other than Subordinated Indebtedness, of the Company or a Subsidiary Guarantor secured by such assets, (ii) Indebtedness of the Company or a Subsidiary Guarantor under Credit Facilities or other Indebtedness of the Company that is by its terms pari passu with the Notes, or (iii) Indebtedness of a Restricted Subsidiary that is not a Subsidiary Guarantor, and, in each case, if the Senior Debt Indebtedness repaid is revolving credit Indebtedness, to correspondingly reduce commitments with respect thereto;
(2) to acquire acquire, or enter into a binding agreement to acquire, all or substantially all of the assets of(other than cash, or Cash Equivalents and securities) of any Person engaged in a majority of the Voting Stock of, another Permitted Business; provided, however, that any such commitment shall be subject only to customary conditions (other than financing), and such acquisition shall be consummated no later than 180 days after the end of such 360-day period;
(3) to make capital expenditures;acquire, or enter into a binding agreement to acquire, Voting Stock of a Person engaged in a Permitted Business from a Person that is not an Affiliate of the Company; provided, however, that such commitment shall be subject only to customary conditions (other than financing) and such acquisition shall be consummated no later than 180 days after the end of such 360-day period; and provided, further, however, that (a) after giving effect thereto, the Person so acquired becomes a Restricted Subsidiary and (b) such acquisition is otherwise made in accordance with this Indenture, including, without limitation, Section 4.10 hereof; or
(4) to acquire acquire, or enter into a binding agreement to acquire, other long-term assets (other than securities) that are used or useful in a Permitted Business; or
provided, however, that such commitment shall be subject only to customary conditions (5other than financing) for any combination and such acquisition shall be consummated no later than 180 days after the end of clauses (1) through (4) abovesuch 360-day period. Pending the final application of any Net Proceeds, the Company may temporarily reduce revolving credit borrowings or otherwise invest the Net Proceeds in any manner that is not prohibited by this Indenture.
(c) Any Net Proceeds from Asset Sales that are not applied applied, invested or invested segregated from the general funds of the Company for investment in identified assets pursuant to a binding agreement, in each case as provided in paragraph (c) above shall constitute Excess Proceeds; provided, however, that the preceding amount of any Net Proceeds that ceases to be so segregated as contemplated in paragraph will (c) above shall also constitute "“Excess Proceeds” at the time any such Net Proceeds cease to be so segregated; provided further, however, that the amount of any Net Proceeds that continues to be segregated for investment and that is not actually reinvested within twenty-four months from the date of the receipt of such Net Proceeds shall also constitute “Excess Proceeds." When ”
(d) On the 361st day after an Asset Sale (or, at the Company’s option, an earlier date or any later date contemplated by paragraph 4.12(b) above), if the aggregate amount of Excess Proceeds exceeds $5.0 million within five business days thereofUS$100.0 million, the Company will shall make an offer (an “Asset Sale Offer Offer”) to all Holders of Notes and all holders of other Indebtedness that is pari passu in right of payment with the Notes or any Subsidiary Guarantee containing provisions similar to those set forth in this Indenture with respect to offers to purchase or redeem with the proceeds of sales of assets in accordance with Section 3.09 hereof assets, to purchase the maximum principal amount of Notes and such other pari passu Indebtedness that may be purchased out of the Excess ProceedsProceeds in accordance with the procedures set forth in Section 3.09 hereof. The offer price in any Asset Sale Offer will shall be equal to 100% of the principal amount of the Notes and such other pari passu Indebtedness, plus accrued and unpaid interest and Additional Interest, if any, to (but excluding) the date of purchase, and will shall be payable in cash. If any Excess Proceeds remain after consummation of an Asset Sale OfferOffer and all Holders of Notes have been given the opportunity to tender their Notes for purchase in accordance with such Asset Sale Offer and this Indenture, the Company may use those such Excess Proceeds for any purpose not otherwise prohibited by this Indenture. If the aggregate principal amount of Notes and such other pari passu Indebtedness tendered into such Asset Sale Offer exceeds the amount of Excess Proceeds, the Trustee shall select the Notes and such other pari passu Indebtedness to shall be purchased on a pro rata basis (subject to Notes being in denominations of $1,000 or integral multiples of $1,000 in excess thereof) based on the principal amount of Notes and such other pari passu Indebtedness tendered. Upon completion of each Asset Sale Offer, the amount of Excess Proceeds will shall be reset at zero. The Company 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 those 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 Section 3.09 or 4.10 of this Indenture, the Company shall comply with the applicable securities laws and regulations and shall not be deemed to have breached its obligations under those the Asset Sale provisions of this Indenture by virtue of such conflict..
Appears in 1 contract
Sources: Indenture (Videotron Ltee)
Asset Sales. The Parent Company shall not, and shall not permit any of its Restricted Subsidiaries to, consummate an Asset Sale unless:
(1a) the Parent 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 (as determined in good faith by the Company) 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 set forth in an Officers' Certificate delivered to the Trustee; and
(3b) at least 75% of the consideration Net Proceeds received in the Asset Sale by the Parent Company or such Restricted Subsidiary is in the form of cashcash or Cash Equivalents. For purposes of this provision, each of the following will shall be deemed to be cash:
(ai) any liabilities, liabilities (as shown on the Parent Company's ’s or such Restricted Subsidiary's ’s most recent balance sheet), of the Parent Company or any Restricted Subsidiary (other than contingent liabilities and liabilities that are by their terms subordinated to the Notes or any Subsidiary Note Guarantee) that are assumed by the transferee of any such assets pursuant to a customary novation agreement that releases the Parent Company or such Restricted Subsidiary from further liability;
(bii) any securities, notes or other obligations received by the Parent Company or any such Restricted Subsidiary from such transferee that are converted within 30 days by the Parent Company or such Restricted Subsidiary into cash, cash (to the extent of the cash received in that conversion) within 180 days following the closing of such Asset Sale; and
(iii) any Designated Noncash Consideration received by the Parent Company or any of its Restricted Subsidiaries in such Asset Sale having an aggregate fair market value (as determined in good faith by the Board of Directors of the Parent Company), taken together with all other Designated Noncash Consideration received pursuant to this clause (iii) that is at that time outstanding, not to exceed the greater of (A) $75 million and (B) five percent (5%) of the total assets of the Parent Company and its Restricted Subsidiaries on a consolidated basis, as shown on the most recent balance sheet of the Parent Company and determined in accordance with GAAP (with the fair market value of each item of Designated Noncash Consideration being measured at the time received without giving effect to subsequent changes in value), shall be deemed to be cash for purposes of this paragraph and for no other purpose; and
(c) any payment If such Asset Sale involves the disposition of Senior Debt secured by Collateral, the assets sold in Parent Company or such Subsidiary has complied with the Asset Saleprovisions of the Note Purchase Documents. Within 365 360 days after the receipt of any Net Proceeds from an Asset Sale, the Parent Company may or a Restricted Subsidiary must apply those such Net Proceeds at its optionProceeds:
(1a) to be reinvested in the business of the Parent Company or a Restricted Subsidiary and to the extent that the assets that were the subject of such Asset Sale constituted Collateral such replacement assets shall be required to constitute Collateral; provided that if the Parent Company or a Restricted Subsidiary enters into a binding agreement to acquire such assets within such 360 day period, such Net Proceeds shall be deemed to have been applied pursuant to this clause (a) so long as such Net Proceeds are applied to acquire such assets within 180 days following such 360th day;
(b) in the case of an Asset Sale involving ABL Priority Collateral, to repay Senior Debt ABL Obligations (and/or, to the extent permitted under the terms of the ABL Facility and the New Note Intercreditor Agreement, to make an offer to repurchase the Notes), and, if in the Senior Debt repaid is case of ABL Obligations that are revolving credit Indebtednessobligations, to correspondingly permanently reduce the commitments with respect thereto;
(2) to acquire all or substantially all of the assets of, or a majority of the Voting Stock of, another Permitted Business;
(3) to make capital expenditures;
(4) to acquire other long-term assets that are used or useful in a Permitted Business; or
(5c) to make an offer to purchase the Senior Priority Notes at 100% of principal amount, plus accrued and unpaid interest, if any, and if applicable, (x) in the case of Net Proceeds from Collateral, to make an offer to the holders of other Permitted Additional Pari Passu Obligations and (y) in the case of any other Net Proceeds, to make an offer to the holders of other Indebtedness of the Company that ranks pari passu with the Senior Priority Notes (the “Other Debt”), in either case (x) and (y) that by its terms requires the Parent Company or any of its Restricted Subsidiaries to make an offer to purchase such Permitted Additional Pari Passu Obligations or Other Debt, as applicable, upon consummation of an Asset Sale, to purchase such Permitted Additional Pari Passu Obligations or Other Debt, as applicable, on a pro rata basis with the Senior Priority Notes in accordance with the Senior Priority Notes Indenture. Any Net Proceeds that remain following compliance by the Company with its obligations set forth in the second paragraph of this Section 4.6 may be used for any combination of clauses (1) through (4) abovepurpose not otherwise prohibited by the Note Purchase Documents. Pending the final application of any Net Proceeds, the Company may temporarily reduce revolving credit borrowings or otherwise invest the Net Proceeds in any manner that is not prohibited by this Indenture. Any Net Proceeds from Asset Sales that are not applied or invested as provided in the preceding paragraph will constitute "Excess Proceedsborrowings." When the aggregate amount of Excess Proceeds exceeds $5.0 million within five business days thereof, the Company will make an Asset Sale Offer to all Holders of Notes and all holders of other Indebtedness that is pari passu with the Notes containing provisions similar to those set forth in this Indenture with respect to offers to purchase or redeem with the proceeds of sales of assets in accordance with Section 3.09 hereof to purchase the maximum principal amount of Notes and such other pari passu Indebtedness that may be purchased out of the Excess Proceeds. The offer price in any Asset Sale Offer will be equal to 100% of principal amount plus accrued and unpaid interest and Additional Interest, if any, to the date of purchase, and will be payable in cash. If any Excess Proceeds remain after consummation of an Asset Sale Offer, the Company may use those Excess Proceeds for any purpose not otherwise prohibited by this Indenture. If the aggregate principal amount of Notes and other pari passu Indebtedness tendered into such Asset Sale Offer exceeds the amount of Excess Proceeds, the Trustee shall select the Notes and such other pari passu Indebtedness to be purchased on a pro rata basis based on the principal amount of Notes and such other pari passu Indebtedness tendered. Upon completion of each Asset Sale Offer, the amount of Excess Proceeds will be reset at zero. The Company shall comply with the requirements of Rule 14e-1 under the Exchange Act and any other securities laws and regulations thereunder to the extent 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 4.10 of this Indenture, the Company shall comply with the applicable securities laws and regulations and shall not be deemed to have breached its obligations under those provisions of this Indenture by virtue of such conflict.
Appears in 1 contract
Sources: Indenture and Note Purchase Agreement (Cenveo, Inc)
Asset Sales. The Company shall will not, and shall will not permit any of its the Restricted Subsidiaries to, consummate an Asset Sale unless:
(1a) the Company (or the Restricted Subsidiary, as the case may be) receives consideration at the time of the Asset Sale at least equal to the fair market value of the assets or Equity Interests issued or sold or otherwise disposed of;
of (2) the fair market value is as determined in good faith 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 TrusteeDirectors); and
(3b) at least 75% of the consideration received in the Asset Sale by the Company or such Restricted Subsidiary is in the form of cashcash or Cash Equivalents. For purposes of this provision, each of the following will be deemed to be cash:
(ai) any liabilities, as shown on the Company's or such Restricted Subsidiary's most recent consolidated balance sheet, of the Company or any Restricted Subsidiary sheet (other than contingent liabilities and liabilities that are by their terms subordinated to the Notes or any Subsidiary Guarantee) that are assumed by the transferee of any such assets pursuant to a customary novation agreement that releases request and from which the Company or such Restricted Subsidiary is released from further liability;liability with respect to such liabilities; and
(bii) 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 such Restricted Subsidiary into cashcash within 30 days of receipt, to the extent of the cash received in that conversion; and
(c) any payment of Senior Debt secured by the assets sold in the Asset Sale. Within 365 360 days after the receipt of any Net Proceeds from an Asset Sale, the Company may apply those Net Proceeds at its option:
(1a) to repay Senior Debt and, if the Senior Debt repaid is revolving credit Indebtedness, to correspondingly reduce commitments with respect thereto;
(2b) to acquire all or substantially all of the assets of, or a majority of the Voting Stock of, another Permitted Business;
(3c) to make a capital expenditures;expenditure; or
(4d) to acquire other long-term assets that are used or useful in a Permitted Business; or
(5) for any combination of clauses (1) through (4) above. Pending the final application of any Net Proceeds, the Company may temporarily reduce revolving credit borrowings or otherwise invest the Net Proceeds in any manner that is not prohibited by this Indenture. Any Net Proceeds from Asset Sales that are not applied or invested as provided in the preceding paragraph will constitute "Excess Proceeds." When the aggregate amount of Excess Proceeds exceeds $5.0 million within five business days thereof10.0 million, the Company will make an Asset Sale Offer to all Holders of Notes and all holders of other Indebtedness that is pari passu with the Notes containing provisions similar to those set forth in this Indenture with respect to offers to purchase or redeem with the proceeds of sales of assets in accordance with Section 3.09 hereof to purchase the maximum principal amount of Notes and such other pari passu Indebtedness that may be purchased out of the Excess Proceeds. The offer price in any Asset Sale Offer will be equal to 100% of principal amount plus accrued and unpaid interest and Additional InterestLiquidated Damages, if any, to the date of purchase, and will be payable in cash. If any Excess Proceeds remain after consummation of an Asset Sale Offer, the Company may use those Excess Proceeds for any purpose not otherwise prohibited by this Indenture. If the aggregate principal amount of Notes and other pari passu Indebtedness tendered into such Asset Sale Offer exceeds the amount of Excess Proceeds, the Trustee shall will select the Notes and such other pari passu Indebtedness to be purchased on a pro rata basis based on the principal amount of Notes and such other pari passu Indebtedness tenderedbasis. Upon completion of each Asset Sale Offer, the amount of Excess Proceeds will be reset at zero. The Company shall comply with the requirements of Rule 14e-1 under the Exchange Act and any other securities laws and regulations thereunder to the extent 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 Section 3.09 or 4.10 of this Indenture, the Company shall will comply with the applicable securities laws and regulations and shall will not be deemed to have breached its obligations under those the Asset Sale provisions of this Indenture by virtue of such conflict.
Appears in 1 contract
Sources: Indenture (Rotech Healthcare Inc)
Asset Sales. The Company shall not, and shall not permit any of its Restricted Subsidiaries Subsidiary to, consummate an Asset Sale unless:
: (1i) the Company (or the Restricted such Subsidiary, as the case may be) receives consideration at the time of the such Asset Sale at least equal to the fair market value 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 set forth in an Officers' Certificate delivered to the Trustee) of the assets or Equity Interests issued or sold or otherwise disposed of; and
and (3ii) at least 75% of the consideration therefor received in the Asset Sale by the Company or such Restricted Subsidiary is in the form of cash. For purposes of this provision, each of the following will be deemed to be cash:
(a) cash or Cash Equivalents or (b) properties and capital assets (including franchises and licenses required to own and operate such properties) to be used in the same lines of business being conducted by the Company or any liabilitiesSubsidiary at such time, or Equity Interests in one or more Persons which thereby become Wholly Owned Subsidiaries of the Company whose assets consist primarily of such properties and capital assets; provided that the amount of (x) any liabilities (as shown on the Company's or such Restricted Subsidiary's most recent balance sheet, ) of the Company or any Restricted Subsidiary (other than contingent liabilities and liabilities that are by their terms subordinated to the Notes or any Subsidiary Guaranteeguarantee thereof) that are assumed by the transferee of any such assets pursuant to a customary novation agreement that releases the Company or 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 within 30 days by the Company or such Restricted Subsidiary into cash, cash (to the extent of the cash received in that conversion; and
(c) any payment received), shall be deemed to be cash for purposes of Senior Debt secured by the assets sold in the Asset Salethis provision. Within 365 days after the receipt of any Net Proceeds from an Asset Sale, the Company may apply those Net Proceeds may, at its option:
, (1a) apply such Net Cash Proceeds to repay Senior Debt and, if the Senior Debt repaid is revolving credit Indebtedness, (and to correspondingly reduce commitments with respect thereto;
(2) to acquire all or substantially all thereto in the case of the assets ofrevolving borrowings), or (b) commit in writing to apply such Net Cash Proceeds to a majority of the Voting Stock of, another Permitted Business;
(3) to make capital expenditures;
(4) to acquire other long-term assets that are used or useful in a Permitted Business; or
(5) for any combination of clauses (1) through (4) aboveRelated Business Investment. Pending the final application of any such Net Cash Proceeds, the Company may temporarily reduce revolving credit borrowings Senior Debt outstanding under the Senior Credit Facility or otherwise invest the such Net Cash Proceeds in any manner that is not prohibited by this Indenture. Any Net Cash Proceeds from Asset Sales that are not applied or invested as provided in the preceding paragraph will constitute "Excess Proceeds." When the aggregate amount of Excess Proceeds exceeds $5.0 million within five business days thereof, the Company will make an Asset Sale Offer to all Holders of Notes and all holders of other Indebtedness that is pari passu with the Notes containing provisions similar to those set forth in this Indenture with respect to offers to purchase or redeem with the proceeds of sales of assets in accordance with Section 3.09 hereof to purchase the maximum principal amount of Notes and such other pari passu Indebtedness that may be purchased out of the Excess Proceeds. The offer price in any Asset Sale Offer will be equal to 100% of principal amount plus accrued and unpaid interest and Additional Interest, if any, to the date of purchase, and will be payable in cash. If any Excess Proceeds remain after consummation of an Asset Sale Offer, the Company may use those Excess Proceeds for any purpose not otherwise prohibited by this Indenture. If the aggregate principal amount of Notes and other pari passu Indebtedness tendered into such Asset Sale Offer exceeds the amount of Excess Proceeds, the Trustee shall select the Notes and such other pari passu Indebtedness to be purchased on a pro rata basis based on the principal amount of Notes and such other pari passu Indebtedness tendered. Upon completion of each Asset Sale Offer, the amount of Excess Proceeds will be reset at zero. The Company shall comply with the requirements of Rule 14e-1 under the Exchange Act and any other securities laws and regulations thereunder to the extent 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 4.10 of this Indenture, the Company shall comply with the applicable securities laws and regulations and shall not be deemed to have breached its obligations under those provisions of this Indenture by virtue of such conflict.Sales
Appears in 1 contract
Asset Sales. The Company shall will not, and shall 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 greater of (i) the Fair Market Value of the assets or Equity Interests issued or sold or otherwise disposed of and (ii) an amount equal to the invested cost of the assets sold or otherwise disposed of;, less depreciation; and
(2) 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; and
(3) at least 7590% of the consideration therefor received in the Asset Sale by the Company or such Restricted Subsidiary is in the form of cash, Cash Equivalents or Replacement Assets or a combination thereof. For purposes of this provision, each of the following will shall be deemed to be cash:
(aA) any liabilities, as shown on the Company's ’s or such Restricted Subsidiary's ’s most recent consolidated balance sheetsheet (or as would be shown on the Company’s consolidated balance sheet as of the date of such Asset Sale), of the Company or any Restricted Subsidiary (other than contingent liabilities and liabilities that are by their terms subordinated to the Notes or any Subsidiary Note Guarantee) that are assumed by the transferee of any such assets pursuant to a customary novation agreement that releases the Company or 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 contemporaneously, subject to ordinary settlement periods, converted within 30 days by the Company or such Restricted Subsidiary into cashcash within 90 days after such Asset Sale, to the extent of the cash received in that conversion; and
(c) any payment of Senior Debt secured by the assets sold in the Asset Sale. 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 those an amount equal to such Net Proceeds at its optionProceeds:
(1) to repay Senior Debt andDebt, if the Senior Debt repaid is revolving credit Indebtedness, to correspondingly reduce commitments with respect thereto;including SPLNG Existing Notes; or
(2) to acquire all make any capital expenditure or substantially all to purchase Replacement Assets (or enter into a binding agreement to make such capital expenditure or to purchase such Replacement Assets; provided that (a) such capital expenditure or purchase is consummated within the later of (x) 360 days after the receipt of the assets ofNet Proceeds from the related Asset Sale and (y) 180 days after the date of such binding agreement and (b) if such capital expenditure or purchase is not consummated within the period set forth in subclause (a), or a majority of the Voting Stock of, another Permitted Business;
amount not so applied will be deemed to be Excess Proceeds (3) to make capital expenditures;
(4) to acquire other long-term assets that are used or useful in a Permitted Business; or
(5) for any combination of clauses (1) through (4) aboveas defined below)). Pending the final application of any Net Proceeds, the Company may temporarily reduce revolving credit borrowings or otherwise invest the Net Proceeds in any manner that is not prohibited by this Indenture. Any An amount equal to any Net Proceeds from Asset Sales that are not applied or invested as provided in the preceding paragraph paragraphs of this Section 4.10 will constitute "“Excess Proceeds." When ” If on any date, the aggregate amount of Excess Proceeds exceeds $5.0 million 25.0 million, then within five business days thereoften Business Days after such date, the Company will make an offer (an “Asset Sale Offer Offer”) to all Holders of Notes and all holders of other Indebtedness that is pari passu with the Notes containing provisions similar to those set forth in this Indenture with respect to offers to purchase or redeem with the proceeds of sales of assets in accordance with Section 3.09 hereof to purchase the maximum principal amount of Notes and such other pari passu Indebtedness that may be purchased out of the Excess Proceeds. The offer price in any Asset Sale Offer will be equal to 100% of the principal amount plus accrued and unpaid interest and Additional Interest, if any, to the date of purchase, and will be payable in cash. If any Excess Proceeds remain unapplied after consummation of an Asset Sale Offer, the Company and its Restricted Subsidiaries may use those Excess Proceeds for any purpose not otherwise prohibited by this Indenture. If the aggregate principal amount of Notes and other pari passu Indebtedness tendered into such Asset Sale Offer exceeds the amount of Excess Proceeds, the Trustee shall select the Notes and such other pari passu Indebtedness to be purchased shall be determined on a pro rata basis based on and, if applicable, with respect to the principal amount Notes, with such adjustments that may be deemed appropriate by the Trustee so that only Notes in denominations of Notes and such other pari passu Indebtedness tendered$100,000 or whole multiples of $1,000 in excess thereof will be purchased. Upon completion of each Asset Sale Offer, the amount of Excess Proceeds will be reset at zero. Notwithstanding the foregoing, the sale, conveyance or other disposition of all or substantially all of the assets of the Company and its Restricted Subsidiaries, taken as a whole, will be governed by the provisions of Section 4.15 and/or the provisions of Section 5.01 hereof and not by the provisions of this Section 4.10. The Company shall will comply with the requirements of Rule 14e-1 under the Exchange Act and any other securities laws and regulations thereunder to the extent those such laws and regulations are applicable in connection with each repurchase of Notes pursuant to an Asset Sale Offer. To the extent that the provisions of any securities laws or regulations conflict with the provisions of Section 3.09 hereof or this Section 4.10, or compliance with the provisions of Section 3.09 hereof or this Section 4.10 would constitute a violation of this Indentureany such laws or regulations, the Company shall will comply with the applicable securities laws and regulations and shall will not be deemed to have breached its obligations under those provisions of Section 3.09 hereof or this Indenture Section 4.10 by virtue of such conflictcompliance.
Appears in 1 contract
Sources: Indenture (Sabine Pass LNG, L.P.)
Asset Sales. The Company Holdings shall not, and shall not permit any of its Restricted Subsidiaries to, consummate an Asset Sale unless:
unless (1i) the Company (Holdings or the applicable 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 of the assets or Equity Interests issued or sold or otherwise disposed of;
of (2) the fair market value is as determined in good faith 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
Management Committee), (3ii) at least 75% of the consideration received in by Holdings or the Restricted Subsidiary, as the case may be, from such Asset Sale by shall be cash or Cash Equivalents; provided that the Company or such Restricted Subsidiary is in the form amount of cash. For purposes of this provision, each of the following will be deemed to be cash:
(a) any liabilities, liabilities (as shown on the Company's Holdings or such Restricted Subsidiary's most recent balance sheet, ) of the Company Holdings or any such Restricted Subsidiary (other than contingent liabilities and liabilities that are by their terms subordinated to the Notes or any Subsidiary GuaranteeDebentures) that are assumed by the transferee of any such assets pursuant to a customary novation agreement that releases the Company or such Restricted Subsidiary from further liability;
assets, (b) any securities, notes Debentures or other obligations received by the Company Holdings or any such Restricted Subsidiary from such transferee that are immediately converted within 30 days by the Company Holdings or such Restricted Subsidiary into cash, cash (to the extent of the cash received in that conversion; and
received), and (c) any payment Designated Noncash Consideration received by Holdings or any of Senior Debt secured by 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 (c) that is at that time outstanding, not to exceed 10% of Total Assets at the assets sold in the Asset Sale. Within 365 days after time of the receipt of any Net Proceeds from such Designated Noncash Consideration (with the fair market value of each item of Designated Noncash Consideration being measured at the time received and without giving effect to subsequent changes in value), shall be deemed to be cash for the purposes of this provision, and (iii) upon the consummation of an Asset Sale, Holdings shall apply, or cause such Restricted Subsidiary to apply, the Company may apply those Net Cash Proceeds at its option:
(1) relating to such Asset Sale within 365 days of receipt thereof to reinvest in Productive Assets or to repay Senior Debt and, if Indebtedness under the Senior Debt repaid is revolving credit Indebtedness, to correspondingly reduce commitments with respect thereto;
(2) to acquire all or substantially all of the assets of, or a majority of the Voting Stock of, another Permitted Business;
(3) to make capital expenditures;
(4) to acquire other long-term assets that are used or useful in a Permitted Business; or
(5) for any combination of clauses (1) through (4) aboveCredit Facilities. Pending the final application of any such Net Cash Proceeds, Holdings or such Restricted Subsidiary may invest such Net Cash Proceeds in Cash Equivalents. On the Company may temporarily reduce revolving credit borrowings 366th day after an Asset Sale or otherwise invest such earlier date, if any, as the Management Committee or such Restricted Subsidiary determines not to apply the Net Cash Proceeds relating to such Asset Sale as set forth in any manner that is not prohibited by this Indenture. Any Net Proceeds from Asset Sales that are not applied or invested as provided in clause (iii) of the preceding paragraph will constitute (each, a "Excess Proceeds." When Net Proceeds Offer Trigger Date"), the aggregate amount of Excess Net Cash Proceeds exceeds $5.0 million within five business days thereof, that have not been applied on or before such Net Proceeds Offer Trigger Date as permitted in clause (iii) of the Company will preceding paragraph (each a "Net Proceeds Offer Amount") shall be applied by Holdings or such Restricted Subsidiary to make an Asset Sale offer to purchase (the "Net Proceeds Offer") on a date (the "Net Proceeds Offer to all Holders of Notes and Payment Date") not less than 30 nor more than 45 days following the applicable Net Proceeds Offer Trigger Date, (x) from all holders of other Indebtedness New Notes on a pro rata basis that is pari passu with the Notes containing provisions similar to those set forth in this Indenture with respect to offers to purchase or redeem with the proceeds of sales of assets in accordance with Section 3.09 hereof to purchase the maximum principal amount of New Notes and such other pari passu Indebtedness that may be purchased out of equal to the Excess Proceeds. The offer Net Proceeds Offer Amount at a price in any Asset Sale Offer will be equal to 100% of the principal amount of the New Notes to be purchased, plus accrued and unpaid interest and Additional Interestthereon, if any, to the date of purchase, and will be payable in cash. If any Excess Proceeds remain after consummation of an Asset Sale Offer, the Company may use those Excess Proceeds for any purpose not otherwise prohibited by this Indenture. If the aggregate principal amount of Notes and other pari passu Indebtedness tendered into such Asset Sale Offer exceeds the amount of Excess Proceeds, the Trustee shall select the Notes and such other pari passu Indebtedness to be purchased or (y) from all Holders on a pro rata basis based that amount of Debentures equal to the Net Proceeds Offer Amount at a price equal to 100% of the Accreted Value thereof on the date of repurchase (if such date of repurchase is prior to August 1, 2003) or 100% of the principal amount of Notes the Debentures to be purchased (if such date of repurchase is on or after August 1, 2003), plus, in each case, accrued and unpaid interest thereon, if any, to the date of purchase; provided, however, that if at any time any non-cash consideration (including any Designated Noncash Consideration) received by Holdings or any Restricted Subsidiary of Holdings, as the case may be, in connection with any Asset Sale is converted into or sold or otherwise disposed of for cash (other than interest received with respect to any such other pari passu Indebtedness tenderednon-cash consideration), then such conversion or disposition shall be deemed to constitute an Asset Sale hereunder and the Net Cash Proceeds thereof shall be applied in accordance with this Section 4.10. Notwithstanding the foregoing, if a Net Proceeds Offer Amount is less than $10.0 million, the application of the Net Cash Proceeds constituting such Net Proceeds Offer Amount to a Net Proceeds Offer may be deferred until such time as such Net Proceeds Offer Amount plus the aggregate amount of all Net Proceeds Offer Amounts arising subsequent to the Net Proceeds Offer Trigger Date relating to such initial Net Proceeds Offer Amount from all Asset Sales by Holdings and its Restricted Subsidiaries aggregates at least $10.0 million, at which time Holdings or such Restricted Subsidiary shall apply all Net Cash Proceeds constituting all Net Proceeds Offer Amounts that have been so deferred to make a Net Proceeds Offer (the first date the aggregate of all such deferred Net Proceeds Offer Amounts is equal to $10.0 million or more shall be deemed to be a "Net Proceeds Offer Trigger Date"). Notwithstanding the two immediately preceding paragraphs, Holdings and its Restricted Subsidiaries will be permitted to consummate an Asset Sale without complying with such paragraphs to the extent (i) at least 75% of the consideration for such Asset Sale constitutes Productive Assets, cash, Cash Equivalents and/or Marketable Securities and (ii) such Asset Sale is for fair market value (as determined in good faith by the Management Committee of the General Partner); provided that any consideration not constituting Productive Assets received by Holdings or any of its Restricted Subsidiaries in connection with any Asset Sale permitted to be completed under this paragraph shall be subject to the provisions of the two preceding paragraphs. Each Net Proceeds Offer will be mailed to the record Holders as shown on the register of Holders within 25 days following the Net Proceeds Offer Trigger Date, with a copy to the Trustee, and shall comply with the procedures set forth in Section 3.09. To the extent that the aggregate amount of Debentures tendered pursuant to a Net Proceeds Offer is less than the Net Proceeds Offer Amount, Holdings may use any remaining Net Proceeds Offer Amount for general corporate purposes. Upon completion of each Asset Sale any such Net Proceeds Offer, the amount of Excess Net Proceeds will Offer Amount shall be reset at zero. The Company Issuers shall comply with the requirements of Rule 14e-1 under the Exchange Act and any other securities laws and regulations thereunder to the extent those such laws and regulations are applicable in connection with each the repurchase of Notes Debentures pursuant to an Asset Sale a Net Proceeds Offer. To the extent that the provisions of any securities laws or regulations conflict with the Asset Sale provisions of Section 3.09 or 4.10 of this Indenture, the Company Issuers shall comply with the applicable securities laws and regulations and shall not be deemed to have breached its obligations under those the Asset Sale provisions of this Indenture by virtue of such conflictthereof.
Appears in 1 contract
Asset Sales. The Company shall not, and shall not permit any of its Restricted Subsidiaries to, consummate 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 of the assets or Equity Interests issued or sold or otherwise disposed of;
(2) the fair market value is as conclusively 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
) of the assets or Equity Interests issued or sold or otherwise disposed of and (3ii) at least 75% of the consideration therefor received in the Asset Sale by the Company or such Restricted Subsidiary is in the form of cash. For cash or Cash Equivalents; provided that for purposes of this provision, each (x) the amount of the following will be deemed to be cash:
(aA) any liabilities, liabilities (as shown on the Company's or such Restricted Subsidiary's most recent balance sheet, sheet of the Company or any Restricted such Subsidiary or in the notes thereto) of the Company or such Subsidiary (other than contingent liabilities and liabilities that are by their terms subordinated to the Notes Securities or any Subsidiary Guaranteethe Guarantees) that are assumed by the transferee of any such assets pursuant to a customary novation agreement that releases the Company or such Restricted Subsidiary from further liability;
and (bB) any securities, notes securities or other obligations received by the Company or any such Restricted Subsidiary from such transferee that are immediately converted within 30 days by the Company or such Restricted Subsidiary into cashcash or Cash Equivalents (or as to which the Company or such Subsidiary has received at or prior to the consummation of the Asset Sale a commitment (which may be subject to customary conditions) from a nationally recognized investment, merchant or commercial bank to convert into cash or Cash Equivalents within 90 days of the consummation of such Asset Sale and which are thereafter actually converted into cash or Cash Equivalents within such 90-day period) shall be deemed to be cash or Cash Equivalents (but shall not be deemed to be Net Proceeds for purposes of the following provisions until reduced to cash or Cash Equivalents) and (y) the fair market value of any Non-Cash Consideration received by the Company or a Subsidiary in any Non-Qualified Asset Sale shall be deemed to be cash to the extent that the aggregate fair market value (as conclusively determined by resolution of the Board of Directors set forth in any Officers' Certificate delivered to the Trustee) of all Non-Cash Consideration (measured at the time received and without giving effect to any subsequent changes in value) received by the Company or any of its Subsidiaries since the Issue Date in all Non-Qualified Asset Sales does not exceed 6% of the Company's Stockholders' Equity as of the date of such consummation. Notwithstanding the foregoing, to the extent the Company or any of the cash received in that conversion; and
(c) any payment its Subsidiaries receives Non-Cash Consideration as proceeds of Senior Debt secured by the assets sold in the an Asset Sale, such Non-Cash Consideration shall be deemed to be Net Proceeds for purposes of (and shall be applied in accordance with) the following provisions when the Company or such Subsidiary receives cash or Cash Equivalents from a sale, repayment, exchange, redemption or retirement of or extraordinary dividend or return of capital on such Non-Cash Consideration. Within 365 days after the receipt of any Net Proceeds from an Asset Sale, the Company or such Subsidiary may apply those such Net Proceeds at its option:
(1i) to repay Senior Debt andpurchase one or more Nursing Facilities or Related Businesses and/or a controlling interest in the Capital Stock of a Person owning one or more Nursing Facilities and/or one or more Related Businesses, if the Senior Debt repaid is revolving credit Indebtedness, to correspondingly reduce commitments with respect thereto;
(2) to acquire all or substantially all of the assets of, or a majority of the Voting Stock of, another Permitted Business;
(3ii) to make a capital expenditures;
(4) expenditure or to acquire other long-term assets tangible assets, in each case, that are used or useful in a Permitted Business; or
any business in which the Company is permitted to be engaged pursuant to Section 4.15 hereof or (5iii) for any combination to permanently reduce Indebtedness (other than Subordinated Indebtedness) of clauses (1) through (4) abovethe Company or its Subsidiaries. Pending the final application of any such Net Proceeds, the Company or such Subsidiary may temporarily reduce revolving credit borrowings Indebtedness or otherwise invest the such Net Proceeds in any manner that is not prohibited by this Indenturethe terms hereof. Any Net Proceeds from Asset Sales that are not so invested or applied or invested as provided in the preceding paragraph will shall be deemed to constitute "Excess Proceeds." When the aggregate amount of Excess Proceeds exceeds $5.0 million within five business days thereof25 million, the Company will shall make an Asset Sale Offer offer to all Holders of Notes Securities and all holders of any other Indebtedness that is pari passu of the Company ranking on a parity with the Notes containing Securities from time to time outstanding with similar provisions similar requiring the Company to those set forth in this Indenture with respect to offers make an offer to purchase or to redeem such Indebtedness with proceeds from any Asset Sales, pro rata in proportion to the proceeds respective principal amounts of sales of assets in accordance with Section 3.09 hereof the Securities and such other Indebtedness then outstanding (a "Senior Asset Sale Offer") to purchase the maximum principal amount of Notes Securities and such other pari passu Indebtedness that may be purchased out of the Excess Proceeds. The , at an offer price in any Asset Sale Offer will be cash equal to 100% of the principal amount thereof plus accrued and unpaid interest and Additional Interestthereon, if any, to the date of purchasepurchase (the "Purchase Price"), in accordance with the procedures set forth in Section 2.15 hereof. To the extent that the aggregate amount of Securities and will be payable in cash. If any Excess Proceeds remain after consummation of an such other Indebtedness tendered pursuant to a Senior Asset Sale OfferOffer is less than the Excess Proceeds, the Company may use those any remaining Excess Proceeds for any purpose general corporate purposes not otherwise prohibited at the time by the provisions of this Indenture. If the aggregate principal amount of Notes Securities and such other pari passu Indebtedness tendered into such Asset Sale Offer surrendered by holders thereof exceeds the amount of Excess Proceeds, the Trustee shall select the Notes Securities and such other pari passu Indebtedness to shall be purchased on a pro rata basis based on the principal amount of Notes and such other pari passu Indebtedness tenderedbasis. Upon completion of each a Senior Asset Sale Offer, the amount of Excess Proceeds will shall be reset at zero. The Company shall comply with the requirements of Rule 14e-1 under the Exchange Act and any other securities laws and regulations thereunder to the extent 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 4.10 of this Indenture, the Company shall comply with the applicable securities laws and regulations and shall not be deemed to have breached its obligations under those provisions of this Indenture by virtue of such conflict.
Appears in 1 contract
Sources: Indenture (Beverly Enterprises Inc)
Asset Sales. The Company shall not, and 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 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 set forth in an Officers' Certificate delivered to the Trustee; and
) of the assets or Equity Interests issued or sold or otherwise disposed of and (3ii) at least 75% of the consideration therefor received in the Asset Sale by the Company or such Restricted Subsidiary is in the form of cash. For purposes of this provision, each of the following will be deemed to be cash:
(a) cash or Cash Equivalents, (b) Tower Assets or (c) any liabilities, combination of the foregoing; provided that the amount of (x) any liabilities (as shown on the Company's or such Restricted Subsidiary's most recent balance sheet, ) of the Company or any Restricted Subsidiary (other than contingent liabilities and liabilities that are by their terms subordinated to the Notes or any Subsidiary Guaranteeguarantee thereof) that are assumed by the transferee of any such assets pursuant to a customary novation agreement that releases the Company or 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 30 days by the Company or such Restricted Subsidiary into cash, cash within 20 days of the applicable Asset Sale (to the extent of the cash received in that conversion; and
(creceived) any payment shall be deemed to be cash for purposes of Senior Debt secured by the assets sold in the Asset Salethis provision. Within 365 360 days after the receipt of any Net Proceeds from an Asset Sale, the Company or the applicable Restricted Subsidiary may apply those such Net Proceeds at its option:
to: (1a) to repay Senior Debt and, if reduce (which reduction may be temporary) Indebtedness under a Credit Facility; (b) reduce other Indebtedness of any of the Senior Debt repaid is revolving credit Indebtedness, to correspondingly reduce commitments with respect thereto;
Company's Restricted Subsidiaries; (2c) to acquire all or substantially all the assets of a Permitted Business; (d) acquire Voting Stock of a Permitted Business from a Person that is not a Subsidiary of the assets ofCompany; provided, that, after giving effect thereto, the Company or its Restricted Subsidiary owns a majority of the such Voting Stock of, another Permitted Business;
Stock; or (3e) to make a capital expenditures;
(4) to expenditure or acquire other long-term assets that are used or useful in a Permitted Business; or
(5) for any combination of clauses (1) through (4) above. Pending the final application of any such Net Proceeds, the Company may temporarily reduce revolving credit borrowings or otherwise invest the such Net Proceeds in any manner that is not prohibited by this the Indenture. Any Net Proceeds from Asset Sales that are not applied or invested as provided in the preceding first sentence of this paragraph will be deemed to constitute "Excess Proceeds." When the --------------- aggregate amount of Excess Proceeds exceeds $5.0 million within five business days thereofmillion, the Company will be required to make an offer (an "Asset Sale Offer Offer") to all Holders of Notes and ---------------- all holders of other senior Indebtedness that is pari passu with of the Notes Company containing provisions similar to those set forth in this Indenture with respect to offers to purchase or redeem with the proceeds of sales of assets in accordance with Section 3.09 hereof (such other Senior Indebtedness of the Company, "Pari Passu Notes") to purchase purchase, on a pro rata basis, the ---------------- maximum principal amount (or accreted value, as applicable) of Notes and such other pari passu senior Indebtedness of the Company that may be purchased out of the Excess Proceeds. The , at an offer price in any Asset Sale Offer will be cash in an amount equal to 100% of the principal amount (or accreted value, as applicable) thereof plus accrued and unpaid interest and Additional Interestthereon, if any, to the date of purchasepurchase (subject to the right of Holders of record on the relevant record date to receive interest due on the relevant interest payment date), in accordance with the procedures set forth in the Indenture and will be payable in cashsuch other senior Indebtedness of the Company. If To the extent that any Excess Proceeds remain after consummation of an Asset Sale Offer, the Company may use those such Excess Proceeds for any purpose not otherwise prohibited by this Indenture. If the aggregate principal amount of Notes and such other pari passu senior Indebtedness of the Company tendered into such Asset Sale Offer surrendered by Holders thereof exceeds the amount of Excess Proceeds, the Trustee shall select the Notes and such other pari passu senior Indebtedness to be purchased on a pro rata basis based on the principal amount of Notes and such other pari passu Indebtedness tenderedbasis. Upon completion of each Asset Sale Offersuch offer to purchase, the amount of Excess Proceeds will shall be reset at zero. The Company shall comply with the requirements of Rule 14e-1 under the Exchange Act and any other securities laws and regulations thereunder to the extent 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 4.10 of this Indenture, the Company shall comply with the applicable securities laws and regulations and shall not be deemed to have breached its obligations under those provisions of this Indenture by virtue of such conflict.
Appears in 1 contract
Sources: Indenture (Sba Communications Corp)
Asset Sales. The Company shall not, and 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 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 set forth in an Officers' Certificate delivered to the Trustee; and
) of the assets or Equity Interests of Subsidiaries issued or sold or otherwise disposed of and (3ii) at least 75% of the consideration therefor received in the Asset Sale by the Company or such Restricted Subsidiary is in the form of cash. For purposes ; provided that the amount of this provision, each of the following will be deemed to be cash:
(a) any liabilities, liabilities (as shown on the Company's or such Restricted Subsidiary's most recent balance sheet, ) of the Company or any such Restricted Subsidiary (other than contingent liabilities and liabilities that are by their terms subordinated to the Notes or any Subsidiary Guaranteeguarantee thereof) that are assumed by the transferee of any such assets pursuant to a customary novation agreement that releases the Company or 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 within 30 days by the Company or such Restricted Subsidiary into cash, cash (to the extent of the cash received in that conversion; and
(creceived) any payment shall be deemed to be cash for purposes of Senior Debt secured by the assets sold in the Asset Salethis Section 4.10. Within 365 270 days after of the receipt of any Net Proceeds from an Asset Sale, the Company may apply those such Net Proceeds Proceeds, at its option:
, (1i) to repay Senior Debt and, if the Senior Debt repaid is revolving credit Indebtedness, to correspondingly reduce commitments with respect thereto;
or (2ii) to acquire all the acquisition of a controlling interest in another business, the making of a capital expenditure or substantially all the acquisition of the assets of, or a majority of the Voting Stock of, another Permitted Business;
(3) to make capital expenditures;
(4) to acquire other long-term assets that are used or useful in a Permitted Business; or
(5) for any combination of clauses (1) through (4) aboveassets. Pending the final application of any such Net Proceeds, the Company may temporarily reduce revolving credit borrowings Senior Debt or otherwise invest the such Net Proceeds in any manner that is not prohibited by this Indenture. Any Net Proceeds from Asset Sales that are not applied or invested as provided in the preceding first sentence of this paragraph will shall be deemed to constitute "Excess AExcess Proceeds." When the aggregate amount of Excess Proceeds exceeds $5.0 million within five business days thereofmillion, the Company will shall be required to make an Asset Sale Offer to all Holders of Notes and all holders of other Indebtedness that is pari passu with the Notes containing provisions similar to those set forth in this Indenture with respect to offers to purchase or redeem with the proceeds of sales of assets in accordance with Section 3.09 hereof to purchase the maximum principal amount of Notes and such other pari passu Indebtedness that may be purchased out of the Excess Proceeds. The Proceeds at an offer price in any Asset Sale Offer will be cash in an amount equal to 100% of the principal amount thereof, plus accrued and unpaid interest and Additional InterestLiquidated Damages, if any, thereon to the date of purchase, and will be payable in cashaccordance with the procedures set forth in Section 3.09 hereof. If any Excess Proceeds remain after consummation To the extent that the aggregate amount of Notes tendered pursuant to an Asset Sale OfferOffer is less than the Excess Proceeds, the Company may use those any remaining Excess Proceeds for any purpose not otherwise prohibited by this Indenturegeneral corporate purposes. If the aggregate principal amount of Notes and other pari passu Indebtedness tendered into such Asset Sale Offer surrendered by Holders thereof exceeds the amount of Excess Proceeds, the Trustee shall select the Notes and such other pari passu Indebtedness to be purchased on a pro rata basis based on the principal amount of Notes and such other pari passu Indebtedness tenderedbasis. Upon completion of each an Asset Sale Offer, the amount of Excess Proceeds will shall be reset at zero. The Company shall comply with the requirements of Rule 14e-1 under the Exchange Act and any other securities laws and regulations thereunder to the extent 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 4.10 of this Indenture, the Company shall comply with the applicable securities laws and regulations and shall not be deemed to have breached its obligations under those provisions of this Indenture by virtue of such conflict.
Appears in 1 contract
Sources: Indenture (Dyersburg Corp)
Asset Sales. The Company shall not, and 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 of the assets or Equity Interests issued or sold or otherwise disposed of;
(2) the fair market value is as 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
, which determination shall be conclusive evidence of compliance with this provision) of the assets or Equity Interests issued or sold or otherwise disposed of and (3ii) at least 7585% of the consideration therefor received in the Asset Sale by the Company or such Restricted Subsidiary in such Asset Sale plus all other Asset Sales, since the date of the Indenture, on a cumulative basis, is in the form of cash. For purposes cash or Cash Equivalents; provided that the amount of this provision, each of the following will be deemed to be cash:
(ax) any liabilities, liabilities (as shown on the Company's or such Restricted Subsidiary's most recent balance sheet), of the Company or any Restricted Subsidiary (other than contingent liabilities and liabilities that are by their terms subordinated to the Notes or any Subsidiary Guaranteeguarantee thereof) that are assumed by the transferee of any such assets pursuant to a customary novation agreement that releases the Company or such Restricted Subsidiary from further liability;
liability and (by) any securities, notes or other obligations Liquid Securities received by the Company or any such Restricted Subsidiary from such transferee that are converted within 30 days by the Company or such Restricted Subsidiary into cashcash within 180 days of closing such Asset Sale, shall be deemed to be cash for purposes of this provision (to the extent of the cash received in that conversion; and
(c) any payment of Senior Debt secured by the assets sold in the Asset Salereceived). Within 365 270 days after the receipt of any Net Proceeds from an Asset Sale, the Company may apply those such Net Proceeds Proceeds, at its option:
, (1a) to repay Senior Debt and, if reduce indebtedness under the Senior Debt repaid is revolving credit IndebtednessCredit Facility or to the permanent reduction of other Senior Debt, to correspondingly reduce commitments with respect thereto;
(2b) to acquire all or substantially all of the assets ofa controlling interest in another Oil and Gas Business, or a majority of the Voting Stock of, another Permitted Business;
(3) to make capital expenditures;
(4) expenditures in respect of the Company's or any Restricted Subsidiaries' Oil and Gas Business, or to acquire other purchase long-term assets that are used or useful in a Permitted the Company's or any Restricted Subsidiary's Oil and Gas Business; or
(5) for any combination of clauses (1) through (4) above. Pending the final application of any Net Proceeds, the Company may temporarily reduce revolving credit borrowings or otherwise invest the Net Proceeds in any manner that is not prohibited by this Indenture. Any Net Proceeds from Asset Sales that are not applied or invested as provided in the preceding first sentence of this paragraph will shall (after the expiration of the periods specified in this paragraph) be deemed to constitute "Excess Proceeds." When the aggregate amount of Excess Proceeds exceeds $5.0 million within five business days thereof10.0 million, the Company will shall make an Asset Sale Offer to all Holders of Notes and all holders of other Indebtedness that is pari passu with the Notes containing provisions similar to those set forth in this Indenture with respect to offers to purchase or redeem with the proceeds of sales of assets in accordance with Section 3.09 hereof to purchase the maximum principal amount of Notes and such other pari passu any Pari Passu Indebtedness to which the Asset Sale Offer applies that may be purchased out of the Excess Proceeds. The , at an offer price in any Asset Sale Offer will be cash in an amount equal to 100% of the principal amount thereof plus accrued and unpaid interest and Additional Interestinterest, if any, thereon to the date of purchase, and will be payable in cashaccordance with the procedures set forth in Section 3.09 hereof or the agreements governing the Pari Passu Indebtedness, as applicable. If any Excess Proceeds remain after consummation To the extent that the aggregate amount of Notes tendered or Pari Passu Indebtedness tendered pursuant to an Asset Sale OfferOffer is less than the Excess Proceeds, the Company may use those any remaining Excess Proceeds for any purpose not otherwise prohibited by this Indenturegeneral corporate purposes. If the aggregate principal amount of Notes surrendered by Holders thereof and other pari passu Pari Passu Indebtedness tendered into such Asset Sale Offer surrendered by holders or lenders thereof, collectively, exceeds the amount of Excess Proceeds, the Trustee shall select the Notes and such other pari passu Pari Passu Indebtedness to be purchased on a pro rata basis basis, based on the aggregate principal amount of Notes and (or accreted value, as applicable) thereof surrendered in such other pari passu Indebtedness tenderedAsset Sale Offer. Upon completion of each such Asset Sale Offer, the amount of Excess Proceeds will shall be reset at zero. The Company shall comply with the requirements of Rule 14e-1 under the Exchange Act and any other securities laws and regulations thereunder to the extent 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 4.10 of this Indenture, the Company shall comply with the applicable securities laws and regulations and shall not be deemed to have breached its obligations under those provisions of this Indenture by virtue of such conflict.
Appears in 1 contract
Sources: Indenture (Forcenergy Inc)
Asset Sales. The Company shall not, and 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 (as determined in accordance with the definition of such term, the results of which determination shall be set forth in an Officers' Certificate delivered to the Trustee) of the assets or Equity Interests issued or sold or otherwise disposed of;
of and (2) 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; and
(3b) at least 75% of the consideration therefor received in the Asset Sale by the Company or such Restricted Subsidiary Subsidiary, as the case may be, is in the form of cash. For purposes cash or Cash Equivalents; provided, however, that the amount of this provision, each of the following will be deemed to be cash:
(ai) any liabilities, liabilities (as shown on the Company's or such Restricted Subsidiary's most recent balance sheet, ) of the Company or any such Restricted Subsidiary (other than contingent liabilities and liabilities that are by their terms subordinated to the Notes or any Subsidiary Guaranteeguarantee thereof) that are assumed by the transferee of any such assets pursuant to a customary novation agreement that releases the Company or 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 converted within 30 days by the Company or such Restricted Subsidiary into cash, cash within 90 days of the receipt thereof (to the extent of the cash received in that conversion; and
(creceived) any payment shall be deemed to be cash for purposes of Senior Debt secured by the assets sold in the Asset Salethis Section 4.10. Within 365 days after the receipt of any Net Proceeds from an Asset Sale, the Company or any such Restricted Subsidiary may apply those such Net Proceeds at its option:
to (1a) permanently repay the principal of any secured Indebtedness (to repay Senior Debt and, if the Senior Debt repaid is revolving credit Indebtedness, to correspondingly reduce commitments with respect thereto;
(2) to acquire all or substantially all extent of the fair value of the assets ofsecuring such Indebtedness, as determined by the Board of Directors), (b) make a capital expenditure, or (c) acquire (including by way of a majority purchase of assets or stock, merger, consolidation or otherwise) assets used in the Voting Stock of, another Permitted Principal Business;
. (3) to make capital expenditures;
(4) to acquire other long-term assets Any such Net Proceeds that are applied to the acquisition of assets used or useful in a Permitted Business; or
(5the Principal Business pursuant to any binding agreement shall be deemed to have been applied for such purpose within such 365-day period so long as they are so applied within two years after the date of receipt of such Net Proceeds.) for any combination of clauses (1) through (4) above. Pending the final application of any such Net Proceeds, the Company or any such Restricted Subsidiary may temporarily reduce outstanding revolving credit borrowings borrowings, or otherwise invest the such Net Proceeds in any manner that is not prohibited by this Indenture. Any Net Proceeds from Asset Sales that are not applied or invested as provided in the preceding first sentence of this paragraph will shall be deemed to constitute "Excess Proceeds." When Within 30 days of each date on which the aggregate amount of Excess Proceeds exceeds $5.0 million within five business days thereof20.0 million, the Company will make shall commence an Asset Sale Offer pursuant to all Holders of Notes and all holders of other Indebtedness that is pari passu with the Notes containing provisions similar to those set forth in this Indenture with respect to offers to purchase or redeem with the proceeds of sales of assets in accordance with Section 3.09 hereof to purchase the maximum principal amount of Notes and such other pari passu Indebtedness that may be purchased out of the Excess Proceeds. The offer price in any Asset Sale Offer will be equal to 100% of the principal amount thereof, plus accrued and unpaid interest and Additional InterestLiquidated Damages, if any, thereon, to the date of purchase, purchase and will be payable in cash. If any , in accordance with the procedures set forth in Section 3.09 hereof; provided, however, that, if the Company is required to apply such Excess Proceeds remain after consummation 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 tendered pursuant to an Asset Sale OfferOffer is less than the amount that the Company is required to repurchase, the Company may use those any remaining Excess Proceeds for any purpose purposes not otherwise prohibited by this Indenture. If the aggregate principal amount of Notes and other pari passu Indebtedness tendered into such Asset Sale Offer surrendered by holders thereof exceeds the amount of Excess Proceedsthat the Company is required to repurchase, the Trustee shall select the Notes and such other pari passu Indebtedness to be purchased on a pro rata basis based on (with such adjustments as may be deemed appropriate by the principal amount Trustee so that only Notes in denominations of Notes and such other pari passu Indebtedness tendered$1,000, or integral multiples thereof, shall be purchased). Upon completion of each Asset Sale Offersuch offer to purchase, the amount of Excess Proceeds will shall be reset at zero. The Company shall comply with the requirements of Rule 14e-1 under the Exchange Act and any other securities laws and regulations thereunder to the extent 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 4.10 of this Indenture, the Company shall comply with the applicable securities laws and regulations and shall not be deemed to have breached its obligations under those provisions of this Indenture by virtue of such conflict.
Appears in 1 contract
Asset Sales. (a) The Company shall will not, and shall will not permit any of its Restricted Subsidiaries to, consummate an Asset Sale unless:
(1) the Company (or the such 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 Fair Market Value 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 set forth in an Officers' Certificate delivered to the Trustee; and
(32) at least 75% of the consideration received in the Asset Sale by the Company or such Restricted Subsidiary is in the form of cashcash or Cash Equivalents. For purposes of this provision, each of the following will shall be deemed to be cash:
(aA) any liabilities, as shown on the Company's or such Restricted Subsidiary's ’s most recent consolidated balance sheetsheet (or as would be shown on the Company’s consolidated balance sheet as of the date of such Asset Sale), of the Company or any Restricted Subsidiary (other than contingent liabilities and liabilities that are by their terms subordinated in right of payment to the Notes or any Subsidiary Guarantee) that are assumed by the transferee of any such assets pursuant to (1) a customary novation agreement that releases the Company or such Restricted Subsidiary from further liability or (2) an assignment agreement that includes, in lieu of such a release, the agreement of the transferee or its parent company to indemnify and hold harmless the Company or such Restricted Subsidiary from and against any loss, liability or cost in respect of such assumed liability;
(bB) any securities, notes or other obligations property received by the Company or any such Restricted Subsidiary from such transferee that are is converted within 30 days by the Company or such Restricted Subsidiary into cashcash within 90 days after such Asset Sale, to the extent of the cash received in that conversion; provided that such cash will be treated as Net Proceeds attributable to the original Asset Sale for which such property was received; and
(C) any stock or assets of the kind referred to in clauses (2) or (4) of Section 4.10(c).
(b) Notwithstanding the foregoing, the 75% limitation referred to in Section 4.10(a) shall be deemed satisfied with respect to any Asset Sale in which the cash or Cash Equivalents portion of the consideration received therefrom complies with such 75% limitation on an after-tax basis determined in accordance with Section 4.10(a).
(c) any payment of Senior Debt secured by the assets sold in the Asset Sale. 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 apply those an amount equal to such Net Proceeds at its optionoption to any combination of the following:
(1) if such Asset Sale involves the Sale of Excluded Collateral, to repay Senior Debt prepay, repay, defease, redeem, purchase or otherwise retire Secured Indebtedness of the Company or any Guarantor that is required by its terms to be repaid with the Net Proceeds from such Asset Sale and, if the Senior Debt such Secured Indebtedness repaid is revolving credit Indebtedness, to correspondingly reduce commitments with respect thereto;
(2) to acquire all or substantially all of the assets of, or a majority of the Voting any Capital Stock of, another Permitted BusinessBusiness if, after giving effect to any such acquisition of Capital Stock, the Permitted Business is or becomes a Restricted Subsidiary of the Company;
(3) to make capital expenditures;expenditures in a Permitted Business; or
(4) to acquire other long-term assets that are not classified as current assets under GAAP and that are used or useful in a Permitted Business; or.
(5d) for Notwithstanding Section 4.10(c), if within 365 days after the receipt of any combination Net Proceeds from an Asset Sale, the Company (or the applicable Restricted Subsidiary, as the case may be) enters into a binding written agreement committing the Company or such Restricted Subsidiary to an application of clauses funds of the kind described in clause (12), (3) through or (4) above. of Section 4.10(c), the Company or such Restricted Subsidiary shall be deemed not to be in violation of Section 4.10(c); provided that such application of funds is consummated within 180 days after the end of such 365-day period.
(e) Pending the final application of any Net Proceeds, the Company may temporarily reduce revolving credit borrowings or otherwise invest the Net Proceeds in any manner that is not prohibited by this Indenture. Any .
(f) An amount equal to any Net Proceeds from Asset Sales that are not applied or invested as provided in the preceding paragraph paragraphs will constitute "“Excess Proceeds." ” When the aggregate amount of Excess Proceeds exceeds $5.0 million 10.0 million, within five business twenty days thereof, the Company will make an Asset Sale Offer to all Holders of Notes and all holders of other Indebtedness that is pari passu with the Notes containing provisions similar to those set forth in this Indenture with respect to offers to purchase or redeem with the proceeds of sales of assets in accordance with this Section 3.09 hereof 4.10 to purchase the maximum principal amount (or, if applicable, accreted value) of Notes and such other pari passu Indebtedness that may be purchased out of with the Excess Proceeds. The offer price in any Asset Sale Offer will be equal to 100% of the principal amount of the Notes and the principal amount or, if applicable, accreted value, of such other Indebtedness, plus with respect to both the Notes and any other Indebtedness, accrued and unpaid interest and Additional InterestLiquidated Damages, if any, to the date of purchaseclosing of the offer, and will be payable in cash. If any Excess Proceeds remain unapplied after consummation of an Asset Sale Offer, the Company and its Restricted Subsidiaries may use those Excess Proceeds for any purpose not otherwise prohibited by this Indenture. If the aggregate principal amount of Notes and other pari passu Indebtedness tendered into such Asset Sale Offer exceeds the amount of Excess Proceeds, the Trustee shall select the Notes and such other pari passu Indebtedness to be purchased on a pro rata basis based on the aggregate principal amount of Notes and such other pari passu Indebtedness tendered. Upon completion of each Asset Sale Offer, the amount of Excess Proceeds will shall be reset at zero. .
(g) Notwithstanding the foregoing, the sale, conveyance or other disposition of all or substantially all of the assets of the Company and its Restricted Subsidiaries, taken as a whole, will be governed by the provisions of Sections 4.15 and/or 5.01 and not by this Section 4.10.
(h) The Company shall will comply with the requirements of Rule 14e-1 under the Exchange Act and any other securities laws and regulations thereunder to the extent those laws and regulations are applicable in connection with each repurchase of Notes pursuant to an Asset Sale Offer. To the extent that the provisions of any securities laws or regulations conflict with the provisions of this Section 3.09 4.10, or 4.10 compliance with the provisions of this IndentureSection 4.10 would constitute a violation of any such laws or regulations, the Company shall will comply with the applicable securities laws and regulations and shall will not be deemed to have breached its obligations under those provisions of this Indenture Section 4.10 by virtue of such conflictcompliance.
(i) In the event that, pursuant to the preceding provisions of this Section 4.10, the Company is required to commence an offer to all Holders to purchase Notes (an “Asset Sale Offer”), it will follow the procedures specified below.
(1) The Asset Sale Offer shall be made to all Holders and all holders of other Indebtedness that is pari passu with the Notes containing provisions similar to those set forth in this Indenture with respect to offers to purchase or redeem with the proceeds of sales of assets. The Asset Sale Offer will remain open for a period of at least 20 Business Days following its commencement and not more than 30 Business Days, except to the extent that a longer period is required by applicable law (the “Offer Period”). No later than three Business Days after the termination of the Offer Period (the “Purchase Date”), the Company will apply all Excess Proceeds (the “Offer Amount”) to the purchase of Notes and such other pari passu Indebtedness (on a pro rata basis, if applicable) or, if less than the Offer Amount has been tendered, all Notes and other Indebtedness tendered in response to the Asset Sale Offer. Payment for any Notes so purchased will be made in the same manner as interest payments are made.
(2) If the Purchase Date is on or after an interest record date and on or before the related interest payment date, any accrued and unpaid interest and Liquidated Damages, if any, will be paid to the Person in whose name a Note is registered at the close of business on such record date, and no additional interest will be payable to Holders who tender Notes pursuant to the Asset Sale Offer.
(3) Upon the commencement of an Asset Sale Offer, the Company will send, by first class mail, a notice to the Trustee and each of the Holders, with a copy to the Trustee. The notice will contain all instructions and materials necessary to enable such Holders to tender Notes pursuant to the Asset Sale Offer. The notice, which will govern the terms of the Asset Sale Offer, will state:
(A) that the Asset Sale Offer is being made pursuant to this Section 4.10 and the length of time the Asset Sale Offer will remain open;
(B) the Offer Amount, the purchase price and the Purchase Date;
(C) that any Note not tendered or accepted for payment will continue to accrue interest;
(D) that, unless the Company defaults in making such payment, any Note accepted for payment pursuant to the Asset Sale Offer will cease to accrue interest after the Purchase Date;
(E) that Holders electing to have a Note purchased pursuant to an Asset Sale Offer may elect to have Notes purchased in integral multiples of $1,000 only;
(F) that Holders electing to have Notes purchased pursuant to any Asset Sale Offer will be required to surrender the Note, with the form entitled “Option of Holder to Elect Purchase” attached to the Notes completed, or transfer by book-entry transfer, to the Company, a Depositary, if appointed by the Company, or a Paying Agent at the address specified in the notice at least three days before the Purchase Date;
(G) that Holders will be entitled to withdraw their election if the Company, the Depositary or the Paying Agent, as the case may be, receives, not later than the expiration of the Offer Period, a 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 ▇▇▇▇▇▇ is withdrawing his election to have such Note purchased;
(H) that, if the aggregate principal amount of Notes and other pari passu Indebtedness surrendered by holders thereof exceeds the Offer Amount, the Company will select the Notes and other pari passu Indebtedness to be purchased on a pro rata basis based on the principal amount of Notes and such other pari passu Indebtedness surrendered (with such adjustments as may be deemed appropriate by the Company so that only Notes in denominations of $1,000, or integral multiples thereof, will be purchased); and
(I) that Holders whose Notes were purchased only in part will be issued new Notes equal in principal amount to the unpurchased portion of the Notes surrendered (or transferred by book-entry transfer).
(4) On or before the Purchase Date, the Company will, to the extent lawful, accept for payment, on a pro rata basis to the extent necessary, the Offer Amount of Notes or portions thereof tendered pursuant to the Asset Sale Offer, or if less than the Offer Amount has been tendered, all Notes tendered, and will deliver or cause to be delivered to the Trustee the Notes properly accepted together with an Officers’ Certificate stating that such Notes or portions thereof were accepted for payment by the Company in accordance with the terms of this Section 4.10. The Company, the Depositary or the Paying Agent, as the case may be, will promptly (but in any case not later than five days after the Purchase Date) mail or deliver to each tendering Holder an amount equal to the purchase price of the Notes tendered by such Holder and accepted by the Company for purchase, and the Company, will promptly issue a new Note, and the Trustee, upon written request from the Company, will authenticate and mail or deliver (or cause to be transferred by book entry) such new Note to such Holder, in a principal amount equal to any unpurchased portion of the Note surrendered. Any Note not so accepted shall be promptly mailed or delivered by the Company to the Holder thereof. The Company will publicly announce the results of the Asset Sale Offer on the Purchase Date.
Appears in 1 contract
Asset Sales. The Company shall not, and shall not permit any of its Restricted Subsidiaries to, consummate an Asset Sale unless:
: (1a) the Company (or the Restricted Subsidiary, as the case may be) receives consideration at the time of the such Asset Sale at least equal to the fair market value of the assets or Equity Interests issued or sold or otherwise disposed of;
; (2b) in the case of Asset Sales for consideration exceeding $5.0 million, 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; and
and (3c) at least 75% of the consideration received in the Asset Sale by the Company or such Restricted Subsidiary is in the form of cash. For purposes of this provision, each of the following will be deemed to be cash:
: (ai) any liabilities, as shown on the Company's or such Restricted Subsidiary's most recent balance sheetsheet or in the notes thereto, of the Company or any Restricted Subsidiary (other than contingent liabilities and liabilities that are by their terms subordinated to the Notes 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 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 within 30 days by the Company or such Restricted Subsidiary into cash, to the extent of the cash received in that conversion; and
(c) any payment . A transfer of Senior Debt secured assets by the assets sold in Company to a Wholly Owned Restricted Subsidiary or by a Wholly Owned Restricted Subsidiary to the Company or to another Wholly Owned Restricted Subsidiary, and an issuance of Equity Interests by a Wholly Owned Restricted Subsidiary to the Company or to another Wholly Owned Restricted Subsidiary, shall not be deemed to be an Asset Sale. 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 may apply those the Net Proceeds Proceeds, at its option:
, either (1a) to repay Senior Debt and, if the Senior Debt repaid is revolving credit Indebtedness, to correspondingly reduce commitments with respect thereto;
, (2b) to acquire all or substantially all of the assets of, or a majority of the Voting Stock of, another Permitted Business;
, (3c) to make a capital expenditures;
expenditure, or (4d) to acquire other long-term assets that are used or useful in a Permitted Business; or
(5) for any combination of clauses (1) through (4) above. Pending the final application of any such Net Proceeds, the Company may temporarily reduce revolving credit borrowings or otherwise invest the Net Proceeds in any manner that is not prohibited by this Indenture. Any Net Proceeds from Asset Sales that are not applied or invested as provided in the preceding first sentence of this paragraph will be deemed to constitute "Excess ProceedsEXCESS PROCEEDS." When Within ten Business Days of each date on which the aggregate amount of Excess Proceeds exceeds $5.0 million within five business days thereof10 million, the Company will shall make an Asset Sale Offer pursuant to all Holders of Notes and all holders of other Indebtedness that is pari passu with the Notes containing provisions similar to those set forth in this Indenture with respect to offers to purchase or redeem with the proceeds of sales of assets in accordance with Section 3.09 hereof to purchase the maximum principal amount of Notes and such other pari passu PARI PASSU Indebtedness that may be purchased out of the Excess Proceeds. The offer price in any Asset Sale Offer will be equal to 100% of the principal amount plus accrued and unpaid interest and Additional InterestSpecial Interest thereon, if any, to the date of purchase, in accordance with the procedures set forth in Section 3.09 hereof, and will be payable in cash. If any Excess Proceeds remain after consummation of an Asset Sale Offer, the Company may use those Excess Proceeds for any purpose not otherwise prohibited by this Indenture. If the aggregate principal amount of Notes and other pari passu Indebtedness tendered into such Asset Sale Offer exceeds the amount of Excess Proceeds, the Trustee shall select the Notes and such other pari passu Indebtedness to be purchased on a pro rata basis based on the principal amount of Notes and such other pari passu Indebtedness tendered. Upon completion of each Asset Sale Offersuch offer to purchase, the amount of Excess Proceeds will be deemed to be reset at zero. The Company shall comply with the requirements of Rule 14e-1 under the Exchange Act and any other securities laws and regulations thereunder to the extent 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 4.10 of this Indenture, the Company shall comply with the applicable securities laws and regulations and shall not be deemed to have breached its obligations under those provisions of this Indenture by virtue of such conflict.
Appears in 1 contract
Asset Sales. The Company shall not, and 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 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 set forth in an Officers' Certificate delivered to the Trustee; and
Holder) of the assets or Equity Interests issued or sold or otherwise disposed of and (3ii) at least 75% of the consideration therefor received in the Asset Sale by the Company or such Restricted Subsidiary is in the form of cash. For purposes ; provided that the amount of this provision, each of the following will be deemed to be cash:
(a) any liabilities, liabilities (as shown on the Company's or such Restricted Subsidiary's most recent balance sheet), of the Company or any Restricted Subsidiary (other than contingent liabilities and liabilities that are by their terms subordinated to the Notes or any Subsidiary GuaranteeNote) that are assumed by the transferee of any such assets pursuant to a customary novation agreement that releases the Company or 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 within 30 days by the Company or such Restricted Subsidiary into cash, cash (to the extent of the cash received in that conversion; and
(creceived) any payment shall be deemed to be cash for purposes of Senior Debt secured by the assets sold in the Asset Salethis provision. Within 365 270 days after the receipt of any Net Proceeds from an Asset Sale, the Company or such Restricted Subsidiary may apply those such Net Proceeds at its option:
(1i) to repay Senior Debt and, if permanently reduce Indebtedness and other Obligations of the Senior Debt repaid is revolving credit Indebtedness, Company or any Restricted Subsidiary (and to correspondingly reduce commitments with respect thereto;
) or other Indebtedness or Obligationshaving a Lien on the property that was the subject of such asset sale (2) but only to acquire all or substantially all of the assets ofextent such Lien was a Permitted Lien), or a majority of the Voting Stock of, another Permitted Business;
(3ii) to make capital expenditures;
(4) to expenditures or acquire other long-term assets that are used or useful in the same line of business as the Company was engaged in immediately prior to such Asset Sale or, in the case of a Permitted Business; or
(5) sale of accounts receivable in connection with any accounts receivable financing, for any combination of clauses (1) through (4) aboveworking capital purposes. Pending the final application of any such Net Proceeds, the Company may temporarily reduce revolving credit borrowings or otherwise invest the such Net Proceeds in any manner that is not prohibited by this IndentureAgreement. Any Net Proceeds from Asset Sales that are not applied or invested as provided in the preceding first sentence of this paragraph will be deemed to constitute "Excess Proceeds." When the aggregate amount of Excess Proceeds exceeds $5.0 million within five business days thereof(an "Excess Proceeds Offer Triggering Event"), the Company will shall make an offer to the Holder of the Note (an "Asset Sale Offer to all Holders of Notes and all holders of other Indebtedness that is pari passu with the Notes containing provisions similar to those set forth in this Indenture with respect to offers to purchase or redeem with the proceeds of sales of assets in accordance with Section 3.09 hereof Offer") to purchase the maximum principal amount of Notes and such other pari passu Indebtedness the Note that may be purchased out of the Excess Proceeds. The , at an offer price in any Asset Sale Offer will be cash in an amount equal to 100% of the principal amount thereof plus accrued and unpaid interest and Additional Interest, if any, thereon to the date of purchase, and will be payable in cashaccordance with the procedures set forth in this Section 4(f). If any Excess Proceeds remain after consummation To the extent that the aggregate amount of the Note tendered pursuant to an Asset Sale OfferOffer is less than the Excess Proceeds, the Company may use those any remaining Excess Proceeds for any purpose not otherwise prohibited by general corporate purposes (subject to the restrictions of this Indenture. If the aggregate principal amount of Notes and other pari passu Indebtedness tendered into such Asset Sale Offer exceeds the amount of Excess Proceeds, the Trustee shall select the Notes and such other pari passu Indebtedness to be purchased on a pro rata basis based on the principal amount of Notes and such other pari passu Indebtedness tenderedAgreement). Upon completion of each Asset Sale Offersuch offer to purchase, the amount of Excess Proceeds will shall be reset at zero. The Company shall comply with the requirements of Rule 14e-1 under the Exchange Act and any other securities laws and regulations thereunder Notwithstanding anything to the extent those laws and regulations are applicable in connection with each repurchase contrary, if the occurrence of Notes pursuant to an Asset Sale Offer. To Offer or the extent that related purchase would result in a default under any Senior Debt of the provisions of any securities laws or regulations conflict with the provisions of Section 3.09 or 4.10 of this IndentureCompany, the Company shall comply with the applicable securities laws and regulations and shall not be deemed obligated to have breached its obligations under those provisions of this Indenture by virtue of make such conflictAsset Sale Offer.
Appears in 1 contract
Sources: Note Purchase Agreement (Sweetheart Holdings Inc \De\)
Asset Sales. The Company shall not, and shall not permit any of its Restricted Subsidiaries to, consummate an Asset Sale unless:
(1) the Company (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 of the assets or Equity Interests issued or sold or otherwise disposed of;
(2) the such fair market value is determined by the Company's Board of Directors and evidenced by a resolution of the its Board of Directors set forth in an Officers' Certificate delivered to the Trustee; and
(3) at least 75% of the consideration received in the such Asset Sale by the Company or any such Restricted Subsidiary is in the form of cashcash or Cash Equivalents or a Permitted Business Asset. For purposes of this provision, each of the following will shall be deemed to be cash:
(aA) any of the Company's or its Restricted Subsidiaries' Indebtedness or other liabilities, as shown on the Company's or such Restricted Subsidiary's most recent balance sheet, of the Company or any Restricted Subsidiary (other than contingent liabilities and liabilities Indebtedness that are is by their its terms subordinated to the Notes or any Subsidiary Guarantee) Securities, that are assumed by the transferee of any such assets pursuant to a customary novation an agreement that releases the Company or such Restricted Subsidiary from further liability;; and
(bB) any securities, notes or other obligations received by the Company or any such Restricted Subsidiary from such transferee that are converted within 30 90 days of the applicable Asset Sale by the Company or such Restricted Subsidiary into cash, to the extent of the cash received in that conversion; and
provided that Clauses (c1) any payment and (2) shall not apply to Asset Sales made pursuant to contractual obligations existing at the date of Senior Debt secured by the assets sold in the Asset Salethis Indenture. Within 365 days 12 months after the receipt of any Net Cash Proceeds from an Asset Sale, the Company Company, the applicable Restricted Subsidiary or, subject to the immediately following paragraph, any other Restricted Subsidiary may apply those an amount equal to such Net Cash Proceeds at its optionor, in the case of Clause (3) below, enter into a binding commitment to apply such amount if such amount is applied within 24 months after receipt of such Net Cash Proceeds, as follows:
(1) to permanently repay Senior Debt any Indebtedness that ranks equal in right of payment to the Securities or repay any Indebtedness of any Restricted Subsidiary (other than intercompany Indebtedness) and, if the Senior Debt Indebtedness repaid is revolving credit Indebtedness, to correspondingly reduce commitments with respect thereto;
(2) to acquire all or substantially all of the assets of, or a majority of the Voting Stock of, another Permitted Businessmake capital expenditures;
(3) to make capital expenditures;acquire Equity Interests in one of its Restricted Subsidiaries not then owned by the Company or one of its other Restricted Subsidiaries, to acquire Equity Interests in any Person such that such person becomes a Restricted Subsidiary of the Company as a result of such acquisition or to acquire additional Equity Interests in any Investment in any Person with respect to which the Company or any Restricted Subsidiary then owns any Equity Interests regardless of whether such Person becomes a Restricted Subsidiary as a result of such acquisition; or
(4) to acquire other long-term a Facility or a Permitted Business, or assets that are used or useful in a Permitted Business; or
, provided that such acquisition is made in accordance with this Indenture, including, without limitation, Section 1009. In determining compliance with the immediately preceding paragraph, if the Company's percentage of the Equity Interests in the Restricted Subsidiary that so applies the Net Cash Proceeds is less than its percentage of the Equity Interests in the Restricted Subsidiary that engaged in the Asset Sale, then the amount of Net Cash Proceeds necessary to comply with this Section 1017 will be increased so that the amount of Net Cash Proceeds attributable to the Company's ownership interest in the entity applying the Net Cash Proceeds (5) for any combination of clauses (1) through (4) above. Pending taking into account all contributions by the final application other holders of any Equity Interests in such entity and any change in percentage ownership interest resulting from such contribution) equals the amount of Net Proceeds, Cash Proceeds attributable to the Company may temporarily reduce revolving credit borrowings or otherwise invest Company's ownership interest in the Net Proceeds in any manner that is not prohibited by this Indentureentity making the Asset Sale. Any Net Proceeds proceeds from an Asset Sales Sale that are not applied or invested as provided above in the preceding paragraph will constitute "Excess Proceeds." When the aggregate amount of Excess Proceeds exceeds $5.0 million within five business days thereof20.0 million, the Company will make an Asset Sale Offer to Purchase to all Holders of Notes (and all holders of other Indebtedness of the Company that is pari passu with the Notes containing Securities and that contain provisions similar to those set forth in this Indenture Section 1017 with respect to offers to purchase or redeem with the proceeds of sales of assets in accordance with Section 3.09 hereof assets) to purchase the maximum principal amount of Notes Securities and any such other pari passu Indebtedness that may be purchased out of the Excess Proceeds. The offer price in any Asset Sale Offer to Purchase will be equal to 100% of principal amount plus accrued and unpaid interest and Additional InterestLiquidated Damages, if any, thereon to the date of purchasepurchase (or, in respect of other pari passu Indebtedness such lesser price, if any, as may be provided for by the terms of such pari passu Indebtedness), and will be payable in cash. If any Excess Proceeds remain after consummation of an Asset Sale OfferOffer to Purchase, the Company may use those such Excess Proceeds for any purpose not otherwise prohibited by this Indenture. If the aggregate principal amount of Notes Securities and other pari passu Indebtedness Indebtedness, together with accrued and unpaid interest and Liquidated Damages, if any, thereon tendered into such Asset Sale Offer to Purchase exceeds the amount of Excess Proceeds, the Company shall deliver an Officers' Certificate to the Trustee certifying the portion of such Excess Proceeds allocable to the Securities, which shall select the Notes and such other pari passu Indebtedness to be purchased determined on a pro rata basis based on the principal amount of Notes the Securities and such other pari passu Indebtedness that was tendered, and the Trustee shall select the Securities to be purchased on a pro rata basis in accordance with the clause (11) of the definition of "Offer to Purchase". Upon completion of each Asset Sale OfferOffer to Purchase, the amount of Excess Proceeds will be reset at zero. The Company shall comply with the requirements of Rule 14e-1 under the Exchange Act and any other securities laws and regulations thereunder to the extent those such laws and regulations are applicable in connection with each repurchase of Notes Securities pursuant to an Asset Sale OfferOffer to Purchase. To the extent that the provisions of any securities laws or regulations conflict with the provisions of this Section 3.09 or 4.10 of this Indenture1017, the Company shall comply with the applicable securities laws and regulations and shall not be deemed to have breached its obligations under those provisions of this Indenture Section 1017 by virtue of such conflict. Pending the final application of any Net Cash Proceeds, the Company may temporarily reduce revolving credit borrowings or otherwise invest the Net Cash Proceeds in any manner that is not prohibited by this Indenture.
Appears in 1 contract
Asset Sales. (a) The Company Issuer shall not, and shall not permit any of its Restricted Subsidiaries to, consummate an Asset Sale unless:
(1) the Company (Issuer or the such 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 of the assets or Equity Interests issued or sold or otherwise disposed of;; and
(2) 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; and
(3) at least 7570% of the consideration received in the Asset Sale by the Company Issuer or such Restricted Subsidiary Subsidiary, as the case may be, is in the form of cashcash and Marketable Securities. For the purposes of clause (2) of this provisionSection 4.10(a) and for no other purpose, each of the following will shall be deemed to be cash:
(a) Cash Equivalents;
(b) any liabilities, as shown on Indebtedness (other than any Subordinated Indebtedness) of the Company's Issuer or any of its Restricted Subsidiaries that are actually assumed by the transferee in such Asset Sale (provided that the Issuer or such Restricted Subsidiary's most recent balance sheet, of as the Company or any Restricted Subsidiary (other than contingent liabilities and liabilities that are by their terms subordinated case may be, making the Asset Sale is released from its obligations with respect to the Notes or any Subsidiary Guarantee) that are assumed by the transferee of any such assets pursuant to a customary novation agreement that releases the Company or such Restricted Subsidiary from further liabilityIndebtedness);
(bc) any securities, notes or other obligations received by the Company Issuer or any such Restricted Subsidiary of the Issuer from such transferee that are converted within 30 days by the Company recipient within 120 days into cash or such Restricted Subsidiary into cashCash Equivalents, to the extent of the cash or Cash Equivalents received in that conversion; and
(cd) the Fair Market Value of any payment property or other assets (including Equity Interests of Senior Debt secured by the assets sold any Person that shall be a Restricted Subsidiary following receipt thereof) received that are used or useful in the Asset Sale. a Permitted Business.
(b) Within 365 days 12 months after the receipt of any Net Proceeds from an Asset Sale, the Company Issuer or the applicable Restricted Subsidiary, as the case may be, may apply those an amount equal to such Net Proceeds at its option:
(1) to permanently repay Senior Debt andor prepay
(a) Obligations under Indebtedness secured by Permitted Liens (whose commitments shall be correspondingly reduced permanently upon such repayment or prepayment);
(b) Obligations under the Notes or any other Pari Passu Indebtedness of the Issuer or any Subsidiary Guarantor; provided that if the Issuer or any such Restricted Subsidiary shall so repay or prepay any such other Pari Passu Indebtedness, the Issuer shall reduce (or offer to reduce) Obligations under the Notes on a pro rata basis (based on the amount so applied to such repayments or prepayments) by, at their option, (A) redeeming Notes as described under Section 3.07 (B) making an offer (in accordance with the procedures set forth below for an Asset Sale Offer) to all holders to purchase their Notes at least 100% of the principal amount thereof, plus the amount of accrued but unpaid interest, if any, thereon up to the Senior Debt repaid principal amount of Notes to be repurchased or (C) purchasing Notes through privately negotiated transactions or open market purchases, in a manner that complies with this Indenture and applicable securities law, at a price not less than 100% of the principal amount thereof, plus the amount of accrued but unpaid interest, if any, thereon; or
(c) Indebtedness of a Restricted Subsidiary of the Issuer that is revolving credit Indebtednessa Non-Guarantor, other than Indebtedness owed to correspondingly reduce commitments with respect theretothe Issuer or another Restricted Subsidiary of the Issuer;
(2) to acquire all or substantially all of the assets of, or a majority of the Voting 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 Issuer;
(3) to make a capital expendituresexpenditure;
(4) to acquire other long-term Additional Assets or improve or develop existing assets that are to be used or useful in a Permitted Business; or
(5) for in any combination of applications described in clauses (1), (2) through (3) or (4) above. Pending of this Section 4.10(b); provided that in the final case of clause (2), (3), or (4) of this Section 4.10(b), a binding commitment to acquire the assets of, or Capital Stock of, another Permitted Business, invest in Additional Assets or to make such capital expenditures shall be treated as a permitted application of an amount of Net Proceeds from the date of such commitment so long as the Issuer or such Restricted Subsidiary enters into such commitment with the good faith expectation that such amount of Net Proceeds shall be applied to satisfy such commitment within 180 days of such commitment (an “Acceptable Commitment”) and, in the event any Acceptable Commitment is later cancelled or terminated for any reason before such amount of Net ProceedsProceeds is applied in connection therewith, the Company may temporarily reduce revolving credit borrowings Issuer or otherwise invest the such Restricted Subsidiary enters into another Acceptable Commitment (a “Second Commitment”) within 180 days of such cancellation or termination, it being understood that if a Second Commitment is later cancelled or terminated for any reason before such amount of Net Proceeds in any manner that is not prohibited by this Indenture. applied, then such amount of Net Proceeds shall constitute Excess Proceeds
(c) Any amounts of Net Proceeds from Asset Sales that are not applied or invested as provided in the preceding paragraph will Section 4.10(b) shall constitute "“Excess Proceeds." ” When the aggregate amount of Excess Proceeds exceeds $5.0 million 25.0 million, within five business days thereoften Business Days thereafter, the Company will Issuer shall make an Asset Sale Offer to all Holders holders of Notes and if the Issuer elects (or is required by the terms of such other Pari Passu Indebtedness), all holders of other Pari Passu Indebtedness that is pari passu with the Notes containing provisions similar to those set forth in this Indenture with respect to offers to purchase or redeem with the proceeds of sales of assets in accordance with Section 3.09 hereof (an “Asset Sale Offer”) to purchase the maximum aggregate principal amount of Notes and such other pari passu Indebtedness Pari Passu Indebtedness, in denominations of $2,000 principal amount and multiples of $1,000 in excess thereof, that may be purchased out of with an amount equal to the Excess Proceeds. The Proceeds at an offer price in any Asset Sale Offer will be equal to cash in an amount not less than 100% of the principal amount thereof, or, in the case of Pari Passu Indebtedness represented by securities sold at a discount, not less than the amount of the accreted value thereof at such time, plus accrued and unpaid interest and Additional Interest, if any, to the date fixed for the closing of purchasesuch offer, in accordance with the procedures set forth in this Indenture. In the event that the Issuer or any Restricted Subsidiary of the Issuer prepays any Pari Passu Indebtedness that is outstanding under a revolving credit or other committed loan facility pursuant to an Asset Sale Offer, the Issuer or such Restricted Subsidiary shall cause the related loan commitment to be reduced in an amount equal to the principal amount so prepaid. After the completion of an Asset Sale, the Issuer and its Restricted Subsidiaries may make an Asset Sale Offer prior to the time they are required to do so by the first sentence of this paragraph. If the Issuer or any Restricted Subsidiary of the Issuer completes such an Asset Sale Offer with respect to any Net Proceeds, the Issuer and its Restricted Subsidiaries shall be deemed to have complied with this Section 4.10 with respect to the application of such Net Proceeds (regardless of how much principal amount of Notes are tendered into such offer), and will any such Net Proceeds remaining after completion of such Asset Sale Offer may be payable in cashused by the Issuer and its Restricted Subsidiaries for any purpose not prohibited by this Indenture. If any Excess Proceeds remain after consummation of an Asset Sale Offer, the Company Issuer and its Restricted Subsidiaries may use those Excess Proceeds for any purpose not otherwise prohibited by this Indenture. If the aggregate principal amount of Notes surrendered by Holders thereof and other pari passu Pari Passu Indebtedness tendered into such Asset Sale Offer surrendered by holders thereof or lenders thereunder, collectively, exceeds the amount of Excess Proceeds, the Notes to be repurchased shall be selected in compliance with the requirements of the principal national securities exchange, if any, on which the Notes are listed or, if the Notes are not listed but are in global form, then by lot or otherwise in accordance with the procedures of DTC, or, if the Notes are not listed and not in global form on a pro rata basis, by lot or by such other method as the Trustee in its sole discretion shall deem to be fair and appropriate, and the Issuer shall select the Notes and such other pari passu Pari Passu Indebtedness to be purchased on a pro rata basis based on the basis of the aggregate accreted value or principal amount of tendered Notes and such other pari passu Indebtedness tenderedPari Passu Indebtedness. Upon completion of each Asset Sale Offer, the amount of Excess Proceeds will shall be reset at zero. .
(d) The Company Issuer shall comply with the requirements of Rule 14e-1 under the Exchange Act and any other securities laws and regulations thereunder to the extent 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 3.09 4.10 or 4.10 of this IndentureSection 3.10, the Company Issuer shall comply with the applicable securities laws and regulations and shall not be deemed to have breached its their obligations under those provisions of this Indenture Section 4.10 or Section 3.10 by virtue of such conflictcompliance.
Appears in 1 contract
Asset Sales. The Company shall not, and 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 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
) of the assets or Properties issued or sold or otherwise disposed of and (3ii) at least 7585% of the consideration therefor received in the Asset Sale by the Company or such Restricted Subsidiary is in the form of cash. For purposes cash or Cash Equivalents; provided that the amount of this provision, each of the following will be deemed to be cash:
(ax) any liabilities, liabilities (as shown on the Company's or such Restricted Subsidiary's most recent balance sheet, ) of the Company or any Restricted Subsidiary (other than contingent liabilities and liabilities that are Subordinated Indebtedness or otherwise by their terms subordinated to the Notes Securities 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 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 30 days by the Company or such Restricted Subsidiary into cash, cash within 360 days of closing such Asset Sale (to the extent of the cash received in that conversion; and
(c) any payment received), shall be deemed to be cash for purposes of Senior Debt secured by the assets sold in the Asset Salethis provision. Within 365 360 days after the receipt of any Net Cash Proceeds from an any Asset Sale, the Company may (i) apply those all or any of the Net Cash Proceeds at its option:
(1) therefrom to repay Senior Debt andIndebtedness (other than Subordinated Indebtedness) of the Company or any Subsidiary, if provided, in each case, that the Senior Debt repaid is related loan commitment of any revolving credit Indebtednessfacility or other borrowing (if any) is thereby permanently reduced by the amount of such Indebtedness so repaid, to correspondingly reduce commitments with respect thereto;
or (2ii) to acquire invest all or substantially all any part of the assets of, or a majority of the Voting Stock of, another Permitted Business;
(3) to make Net Cash Proceeds thereof in properties and other capital expenditures;
(4) to acquire other long-term assets that are replace the properties or other capital assets that were the subject of such Asset Sale or in other properties or other capital assets that will be used or useful in a Permitted the Ice Business; or
(5) for any combination of clauses (1) through (4) above. Pending the final application of any such Net Cash Proceeds, the Company may temporarily reduce borrowings under any revolving credit borrowings facility or otherwise invest the such Net Cash Proceeds in any manner that is not prohibited by this Indenture. Any Net Cash Proceeds from an Asset Sales Sale that are not applied or invested as provided in the preceding first sentence of this paragraph will be deemed to constitute "Excess ProceedsAvailable Proceeds Amount." When the aggregate amount of Excess Available Proceeds Amount exceeds $5.0 million within five business days thereof5,000,000, the Company will shall make an Asset Sale Offer offer to purchase, from all Holders of Notes the Securities and any then outstanding Pari Passu Indebtedness required to be repurchased or repaid on a permanent basis in connection with an Asset Sale, an aggregate principal amount of Securities and any such Pari Passu Indebtedness equal to such Available Proceeds Amount as follows:
(i) (A) The Company shall make an offer to purchase (an "Asset Proceeds Offer") from all holders Holders of other Indebtedness that is pari passu the Securities in accordance with the Notes containing provisions similar to those procedures set forth in this Indenture with respect to offers to purchase or redeem with the proceeds of sales of assets in accordance with Section 3.09 hereof to purchase the maximum principal amount (expressed as a multiple of Notes and such other pari passu Indebtedness $1,000) of Securities that may be purchased out of an amount (the Excess Proceeds. "Payment Amount") equal to the product of such Available Proceeds Amount multiplied by a fraction, the numerator of which is the outstanding principal amount of the Securities and the denominator of which is the sum of the outstanding principal amount of the Securities and such Pari Passu Indebtedness, if any (subject to proration in the event such amount is less than the aggregate Offered Price (as defined in clause (ii) below) of all Securities tendered), and (B) to the extent required by any such Pari Passu Indebtedness and provided there is a permanent reduction in the principal amount of such Pari Passu Indebtedness, the Company shall make an offer to purchase such Pari Passu Indebtedness (a "Pari Passu Offer") in an amount (the "Pari Passu Indebtedness Amount") equal to the excess of the Available Proceeds Amount over the Payment Amount.
(ii) The offer price for the Securities shall be payable in any Asset Sale Offer will be cash in an amount equal to 100% of the principal amount of the Securities tendered pursuant to an Asset Proceeds Offer, plus accrued and unpaid interest and Additional Interestinterest, if any, to the date of purchasesuch Asset Proceeds Offer is consummated (the "Offered Price"), and will be payable in cash. If any Excess Proceeds remain after consummation of an Asset Sale Offer, accordance with the Company may use those Excess Proceeds for any purpose not otherwise prohibited by procedures set forth in this Indenture. If the aggregate principal amount of Notes and other pari passu Indebtedness tendered into such Asset Sale Offer exceeds the amount of Excess Proceeds, the Trustee shall select the Notes and such other pari passu Indebtedness to be purchased on a pro rata basis based on the principal amount of Notes and such other pari passu Indebtedness tendered. Upon completion of each Asset Sale Offer, the amount of Excess Proceeds will be reset at zero. The Company shall comply with the requirements of Rule 14e-1 under the Exchange Act and any other securities laws and regulations thereunder to the extent 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 aggregate Offered Price of any securities laws the Securities tendered pursuant to an Asset Proceeds Offer is less than the Payment Amount relating thereto or regulations conflict with the provisions aggregate amount of Section 3.09 the Pari Passu Indebtedness that is purchased or 4.10 of this Indenturerepaid pursuant to the Pari Passu Offer is less than the Pari Passu Indebtedness Amount (such shortfall constituting an "Asset Proceeds Deficiency"), the Company may use such Asset Proceeds Deficiency, or a portion thereof, for general corporate purposes, subject to the limitations of Section 4.03.
(iii) If the aggregate Offered Price of Securities validly tendered and not withdrawn by Holders thereof exceeds the Payment Amount, Securities to be purchased will be selected on a pro rata basis. Upon completion of such Net Proceeds Offer and Pari Passu Offer, the amount of Available Proceeds Amount shall comply with the applicable securities laws and regulations and be reset to zero. The Company shall not be deemed permit any Subsidiary to have breached its obligations under those provisions enter into or suffer to exist any agreement (excluding Permitted Liens) that would place any restriction of this Indenture by virtue any kind (other than pursuant to law or regulation) on the ability of such conflict.the Company to make an Asset Proceeds Offer following any Asset -45- 52
Appears in 1 contract
Sources: Indenture (Packaged Ice Inc)
Asset Sales. (a) The Company shall not, and shall not permit any of its Restricted Subsidiaries to, consummate an any Asset Sale unless:
(1i) 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 Fair Market Value (as determined at the time of contractually agreeing to such Asset Sale) of the Capital Stock, assets or Equity Interests issued or property 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 set forth in an Officers' Certificate delivered pursuant to the Trusteesuch Asset Sale; and
(3ii) at least 75% to the extent that the assets sold in such Asset Sale were part of the Collateral, the assets received as non-cash consideration received in shall not be Excluded Assets and are required to be pledged as Collateral pursuant to the Asset Sale Security Documents reasonably promptly after receipt by the Company or such a Restricted Subsidiary is in the form of cashthereof. For purposes of this provision, each of clause (ii) the following will be deemed to be cashamount of:
(aA) any liabilities, liabilities (as shown on the Company's ’s or such Restricted Subsidiary's ’s most recent balance sheet or in the notes thereto for which internal financial statements are available immediately preceding such date 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) of the Company or any Restricted Subsidiary (other than contingent liabilities and liabilities that are by their terms subordinated to the Notes Notes) that are extinguished in connection with the transactions relating to such Asset Sale, or any Subsidiary Guarantee) that are assumed by the transferee of any such assets assets, property or Capital Stock, in each case, pursuant to a customary novation an agreement that releases or indemnifies the Company or such Restricted Subsidiary Subsidiary, as the case may be, from further liability;liability therefor; and
(bB) any securities, notes or other obligations or other assets or property received by the Company or any such Restricted Subsidiary from such transferee that are converted within 30 days by the Company or such Restricted Subsidiary into cashcash or Cash Equivalents, or by their terms are required to be satisfied for cash or Cash Equivalents (to the extent of the cash received or Cash Equivalents received), in that conversioneach case within 180 days following the receipt thereof; andand shall each be deemed to be Cash Equivalents.
(cb) any payment of Senior Debt secured by the assets sold in the Asset Sale. Within 365 180 days after the Company’s or any Restricted Subsidiary’s receipt of the Net Cash Proceeds of any Net Proceeds from an Asset Sale, the Company may apply those Net Proceeds or a Restricted Subsidiary, at its option, may apply an amount equal to the Net Cash Proceeds from such Asset Sale (or any portion thereof) as follows:
(1i) if such Net Cash Proceeds are from an Asset Sale that is not a disposition of Collateral, to repay Senior Debt andrepay, if the Senior Debt repaid is revolving credit Indebtednessprepay, defease, redeem, reduce, purchase or otherwise retire (and to correspondingly reduce commitments with respect theretothereto in the case of revolving borrowings): (x) Indebtedness of the Company (other than any Disqualified Equity Interest or subordinated obligations) that is secured by a Lien on assets that do not constitute a part of the Collateral (other than Indebtedness owed to an Affiliate of the Company) or (y) Indebtedness of a Restricted Subsidiary (other than any Disqualified Equity Interest or subordinated Guarantees) that is secured by a Lien on assets that do not constitute a part of the Collateral (other than Indebtedness owed to the Company or an Affiliate of the Company);
(2ii) if such Net Cash Proceeds are from an Asset Sale that is not a disposition of Collateral, in the case of an Asset Sale by a Restricted Subsidiary that is not a Note Guarantor, to acquire all repay, prepay, defease, redeem, reduce, purchase or substantially all otherwise retire (and to correspondingly reduce commitments with respect thereto in the case of the assets of, revolving borrowings) Indebtedness of such Restricted Subsidiary or any other Restricted Subsidiary that is not a majority of the Voting Stock of, another Permitted BusinessNote Guarantor;
(3iii) to repay, prepay, defease, redeem, reduce, purchase or otherwise retire (and to correspondingly reduce commitments with respect thereto in the case of revolving borrowings), first, outstanding borrowings under any first-priority lien secured Indebtedness incurred under Section 4.10(a)(ii) of this Indenture and, thereafter on a pro rata basis, the Notes by, at its option (i) redeeming Notes as provided under Section 15.01, (ii) purchasing Notes through open market purchases (to the extent such purchases are at or above 100.0% of the principal amount thereof), or (iii) making an offer (in accordance with the procedures set forth below for an Asset Sale Offer) to all Holders to purchase their Notes at 100.0% 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;
(iv) to make an investment in, purchase or otherwise acquire any one or more businesses, assets (other than working capital assets), properties or capital expenditures;
(4) to acquire other long-term assets that are , in each case used or useful in the Company’s business or to make payments (including without limitation prepayments and progress payments) in connection with such investment, purchase or other acquisition; provided, that if such investment, purchase or acquisition is in the form of the acquisition of Capital Stock of a Permitted BusinessPerson, such investment, purchase or acquisition results in such Person becoming a Restricted Subsidiary; provided, further, that the assets acquired with the Net Cash Proceeds of a disposition of Collateral shall not be Excluded Assets and are required to be pledged as Collateral pursuant to the Collateral Documents reasonably promptly after receipt by the Company or a Restricted Subsidiary thereof;
(v) to make an investment in, purchase or otherwise acquire any one or more businesses, assets (other than working capital assets) or properties that replace the businesses, assets and/or properties that are the subject to such Asset Sale; provided, that the assets acquired with the Net Cash Proceeds of a disposition of Collateral shall not be Excluded Assets and are required to be pledged as Collateral pursuant to the Collateral Documents reasonably promptly after receipt by the Company or a Restricted Subsidiary thereof; or
(5vi) for any combination of clauses the foregoing, provided, that the Company and its Restricted Subsidiaries will be deemed to have complied with the provisions described in clause (1iv) through or (4v) aboveof this Section 4.14(b) if and to the extent that, within 180 days after the Company’s or any Restricted Subsidiary’s receipt of such Net Cash Proceeds, the Company or a Restricted Subsidiary, as applicable, has entered into and not abandoned or rejected a binding agreement to make an investment, purchase or other acquisition in compliance with the provision described in clause (iv) or (v) of this Section 4.14(b), and that investment, purchase or other acquisition is thereafter completed within 90 days after the end of such 180-day period
(c) Notwithstanding the foregoing, to the extent that repatriation to the United States of any or all of the Net Cash Proceeds of any Asset Sales by a Foreign Subsidiary (x) is prohibited or delayed by applicable local law or (y) would have a material adverse tax consequence (taking into account any foreign tax credit or other net benefit actually realized in connection with such repatriation that would not otherwise be realized), as determined by the Company in its sole discretion, the portion of such Net Cash Proceeds so affected will not be required to be applied in compliance with this covenant; provided that clause (x) of this paragraph shall apply to such amounts so long, but only so long, as the applicable local law will not permit repatriation to the United States (the Company hereby agreeing to use commercially reasonable efforts to cause the applicable Foreign Subsidiary to take all actions reasonably required by the applicable local law, applicable organizational impediments or other impediment to permit such repatriation), and if such repatriation of any of such affected Net Cash Proceeds is permitted under the applicable local law and is not subject to clause (y) of this paragraph, then, an amount equal to such Net Cash Proceeds will be promptly applied (net of additional taxes that would be payable or reserved against as a result of repatriating such amounts) in compliance with this covenant. The time periods set forth in this covenant shall not start until such time as the Net Cash Proceeds may be repatriated (whether or not such repatriation actually occurs).
(d) Pending the final application of any such Net Cash Proceeds, the Company and its Restricted Subsidiaries may temporarily reduce Indebtedness (including under a revolving credit borrowings debt facility) or otherwise invest the or utilize such Net Cash Proceeds in any manner that is not prohibited by this Indenture. Any amount of Net Cash Proceeds from any Asset Sales Sale that are is not applied or invested as provided and within the time period set forth in the preceding paragraph Section 4.14(b) will be deemed to constitute "“Excess Proceeds." ”; provided, that any amount of proceeds offered to Holders pursuant to clause (iii) of Section 4.14(b) or pursuant to an Asset Sale Offer made at any time after the Asset Sale shall be deemed to have been applied as required and shall not be deemed to be Excess Proceeds without regard to the extent to which such offer is accepted by the Holders. When the aggregate amount of Excess Proceeds exceeds $5.0 million within five business days thereofmillion, the Company will be required to make an offer (an “Asset Sale Offer Offer”) to all Holders of Notes and and, to the extent required by the terms of other pari passu Indebtedness, to all holders of other Indebtedness that is pari passu Indebtedness outstanding with similar provisions requiring the Notes containing provisions similar Company (or the Note Guarantor, as applicable) to those set forth in this Indenture with respect to offers make an offer to purchase or redeem such pari passu Indebtedness with the proceeds of sales of assets in accordance with Section 3.09 hereof from any Asset Sale, to purchase the maximum principal amount of Notes and any such other pari passu Indebtedness to which the Asset Sale Offer applies that may be purchased out of the Excess Proceeds. The , at an offer price in any Asset Sale Offer will be cash in an amount equal to 100100.0% of the principal amount of the Notes and pari passu Indebtedness plus accrued and unpaid interest and Additional Interestto (but not including) the date of purchase (or such lesser price with respect to the pari passu Indebtedness, if any, as may be provided by the terms of such Indebtedness), in accordance with the procedures set forth in this Indenture or the agreements governing the pari passu Indebtedness, as applicable.
(e) To the extent that the aggregate amount of Notes and pari passu Indebtedness so properly tendered and not withdrawn pursuant to the date of purchase, and will be payable in cash. If any Excess Proceeds remain after consummation of an Asset Sale OfferOffer is less than the Excess Proceeds, the Company may use those any remaining Excess Proceeds for any purpose not otherwise prohibited by this Indenture. If the aggregate principal amount of Notes surrendered by Holders thereof and other pari passu Indebtedness tendered into such Asset Sale Offer surrendered by Holders or lenders, collectively, exceeds the amount of Excess Proceeds, the Trustee shall select the Notes and such other pari passu Indebtedness to be purchased on a pro rata basis based on the principal amount selection of Notes and such other pari passu Indebtedness tenderedfor purchase will be made by the Company in a manner consistent with Section 15.02(d). Upon completion of each such Asset Sale Offer, the amount of Excess Proceeds will shall be reset at zero. The Company shall comply with the requirements of Rule 14e-1 under the Exchange Act and any other securities laws and regulations thereunder to the extent 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 4.10 of this Indenture, the Company shall comply with the applicable securities laws and regulations and shall not be deemed to have breached its obligations under those provisions of this Indenture by virtue of such conflict.
Appears in 1 contract
Sources: Indenture (Nextnav Inc.)
Asset Sales. The Company shall not, and 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 of the assets or Equity Interests issued or sold or otherwise disposed of;
; (2ii) if the Net Proceeds received with respect to any Asset Sale exceed $15.0 million, 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
and (3iii) except with respect to a disposition of the Exploration and Production Assets of Odessa (including by way of the sale of the capital stock of Odessa) or the assets of the operations conducted by the Company or its Subsidiaries in Argentina and related assets (including by way of the sale of the Capital Stock of the Subsidiary or Subsidiaries conducting such operations), at least 75% of the consideration therefor received in the Asset Sale by the Company or such Restricted Subsidiary is in the form of cash. For purposes of this provision, each of the following will shall be deemed to be cash:
: (a) any liabilities, as shown on the Company's or such Restricted Subsidiary's most recent balance sheet, liabilities of the Company or any Restricted Subsidiary (other than contingent liabilities and liabilities that are by their terms subordinated to the Notes or any Subsidiary Note Guarantee) that are assumed by the transferee of any such assets pursuant to a customary novation agreement that releases the Company or such Restricted Subsidiary from further liability;
assets; (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 within 30 days by the Company or such Restricted Subsidiary into cash, cash (to the extent of the cash received in that conversion); and
(c) any payment assets received in exchange for assets in a "like-kind" exchange or an exchange of Senior Debt secured by assets of the Company or any Restricted Subsidiary for other assets sold which are useful in the Asset Sale. business of the Company and the Restricted Subsidiaries (whether such assets are of "like kind"); and (d) any Designated Noncash Consideration (which shall not at any time exceed, in the aggregate, $30.0 million outstanding.) Within 365 days after the receipt of any Net Proceeds from an Asset Sale, the Company may apply those such Net Proceeds at its option:
: (1) to repay Senior Debt and, if the Senior Debt repaid is revolving credit Indebtedness, reduce permanently Indebtedness under a Credit Facility and to correspondingly reduce commitments with respect thereto;
if such Indebtedness constitutes revolving credit borrowings or to repay permanently any other Indebtedness (other than Indebtedness that by its terms is subordinated to the Notes or any Subsidiary Guarantees); (2) to acquire all or substantially all of the assets of, or a majority of the Voting Stock of, another Person engaged in a Permitted Business;
; (3) to make a capital expenditures;
expenditure; or (4) to acquire other long-term assets that are used or useful in a Permitted Business; or
(5) for any combination of clauses (1) through (4) above. Pending the final application of any such Net Proceeds, the Company may temporarily reduce revolving credit borrowings or otherwise invest the such Net Proceeds in any manner that is not prohibited by this Indenture. Any Net Proceeds from Asset Sales that are not applied or invested as provided in the second preceding paragraph will shall constitute "Excess Proceeds." When . Within 30 days of each date on which the aggregate amount of Excess Proceeds exceeds $5.0 million within five business days thereof10.0 million, the Company will shall make an Asset Sale Offer to all Holders of Notes and all holders of other Indebtedness that is pari passu PARI PASSU with the Notes containing provisions similar to those set forth in this Indenture with respect to offers to purchase or redeem with the proceeds of sales of assets in accordance with Section 3.09 hereof to purchase the maximum principal amount of Notes and such other pari passu PARI PASSU Indebtedness that may be purchased out of the Excess Proceeds. The offer price in any Asset Sale Offer will shall be equal to 100% of principal amount plus accrued and unpaid interest and Additional InterestLiquidated Damages, if any, to the date of purchase, and will shall be payable in cash. If any Excess Proceeds remain after consummation of an Asset Sale Offer, the Company may use those such Excess Proceeds for any purpose not otherwise prohibited by this Indenture. If the aggregate principal amount of Notes and such other pari passu PARI PASSU Indebtedness tendered into such Asset Sale Offer exceeds the amount of Excess Proceeds, the Trustee shall select the Notes and such other pari passu PARI PASSU Indebtedness to be purchased on a pro rata basis based on the principal amount of Notes and such other pari passu Indebtedness tenderedbasis. Upon completion of each Asset Sale Offer, the amount of Excess Proceeds will shall be reset at zero. The Company shall comply with the requirements of Rule 14e-1 under the Exchange Act and any other securities laws and regulations thereunder to the extent 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 4.10 of this Indenture, the Company shall comply with the applicable securities laws and regulations and shall not be deemed to have breached its obligations under those provisions of this Indenture by virtue of such conflict.
Appears in 1 contract
Sources: Indenture (Key Energy Services Inc)
Asset Sales. The Company shall not, and shall not permit any of its Restricted Subsidiaries to, consummate engage in an Asset Sale unless:
in excess of $1,000,000 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 value, of the assets or Equity Interests issued or sold or otherwise disposed of;
of and, in the case of a lease of assets, a lease providing for rent and other conditions which are no less favorable to the Company (2or such Subsidiary, as the case may be) in any material respect than the fair then prevailing market value is determined by the Company's Board of Directors and conditions (evidenced in each case by a resolution of the Board of Directors of such entity set forth in an Officers' Certificate delivered to the Trustee; and
) and (3ii) at least 75% (100% in the case of lease payments) of the consideration therefor received in the Asset Sale by the Company or such Restricted Subsidiary is in the form of cash. For purposes cash or Cash Equivalents; provided that the amount of this provision, each of the following will be deemed to be cash:
(ax) any liabilities, liabilities (as shown on the Company's or such Restricted Subsidiary's most recent balance sheetsheet or in the notes thereto, but excluding contingent liabilities and trade payables) of the Company or any Restricted Subsidiary (other than contingent liabilities and liabilities that are by their terms subordinated to the Notes or any Subsidiary GuaranteeGuarantee thereof) that are assumed by the transferee of any such assets pursuant to a customary novation agreement that releases and from which the Company or such Restricted Subsidiary are unconditionally released from further liability;
liability and (by) any securitiesnotes, notes securities or other obligations received by the Company or any such Restricted Subsidiary from such transferee that are converted within promptly, but in no event more than 30 days after receipt, converted by the Company or such Restricted Subsidiary into cash, cash shall (to the extent of the cash received) be deemed to be cash for purposes of this provision and the receipt of such cash shall be treated as cash received in that conversion; and
(c) any payment of Senior Debt secured by the assets sold in from the Asset Sale for which such Notes or obligations were received. The Company or any of its Subsidiaries may apply the Net Proceeds from each Asset Sale. Within 365 , at its option, within 360 days after the receipt consummation of any Net Proceeds from an such Asset Sale, the Company may apply those Net Proceeds at its option:
(1a) to repay permanently reduce any Senior Debt and, if the Senior Debt repaid is revolving credit Indebtedness, Guarantor Senior Indebtedness or, in the case of an Asset Sale by a Foreign Subsidiary, to permanently reduce Indebtedness of such Foreign Subsidiary (and in the case of any senior revolving indebtedness to correspondingly permanently reduce commitments with respect thereto;
), (2) to acquire all or substantially all of the assets of, or a majority of the Voting Stock of, another Permitted Business;
(3b) to make capital expenditures;
(4) to acquire , for the acquisition of another business or the acquisition of other long-term assets assets, in each case, in the same or a Related Business or (c) to reimburse the Company or its Subsidiaries for expenditures made, and costs incurred, to repair, rebuild, replace or restore property subject to loss, damage or taking to the extent that are used the Net Proceeds consist of insurance proceeds received on account of such loss, damage or useful in a Permitted Business; or
(5) for any combination of clauses (1) through (4) abovetaking. Pending the final application of any such Net Proceeds, the Company may temporarily reduce revolving credit borrowings or otherwise invest the Net Proceeds in any manner that is not prohibited by this Indenture. Any Net Proceeds from Asset Sales that are not applied or invested as provided in the preceding paragraph will constitute "Excess Proceeds." When the aggregate amount of Excess Proceeds exceeds $5.0 million within five business days thereof, the Company will make an Asset Sale Offer to all Holders of Notes and all holders of other Indebtedness that is pari passu with the Notes containing provisions similar to those set forth in this Indenture with respect to offers to purchase or redeem with the proceeds of sales of assets in accordance with Section 3.09 hereof to purchase the maximum principal amount of Notes and such other pari passu Indebtedness that may be purchased out of the Excess Proceeds. The offer price in any Asset Sale Offer will be equal to 100% of principal amount plus accrued and unpaid interest and Additional Interest, if any, to the date of purchase, and will be payable in cash. If any Excess Proceeds remain after consummation of an Asset Sale Offer, the Company may use those Excess Proceeds for any purpose not otherwise prohibited by this Indenture. If the aggregate principal amount of Notes and other pari passu Indebtedness tendered into such Asset Sale Offer exceeds the amount of Excess Proceeds, the Trustee shall select the Notes and such other pari passu Indebtedness to be purchased on a pro rata basis based on the principal amount of Notes and such other pari passu Indebtedness tendered. Upon completion of each Asset Sale Offer, the amount of Excess Proceeds will be reset at zero. The Company shall comply with the requirements of Rule 14e-1 under the Exchange Act and any other securities laws and regulations thereunder to the extent 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 4.10 of this Indenture, the Company shall comply with the applicable securities laws and regulations and shall not be deemed to have breached its obligations under those provisions of this Indenture by virtue of such conflict.Senior
Appears in 1 contract
Asset Sales. The Company shall not, and shall not permit any of its Restricted Subsidiaries to, directly or indirectly, consummate an Asset Sale unless:
unless (1i) the Company (or the such Restricted Subsidiary, as the case may be) receives consideration at the time of the such Asset Sale at least equal to the fair market value (evidenced by a resolution of the Board of Directors of the Company set forth in an Officers' Certificate delivered to the Trustee) of the assets or Equity Interests issued or sold or otherwise disposed of;
of and (2) 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; and
(3ii) at least 75% of the consideration therefor received in the Asset Sale by the Company or such Restricted Subsidiary is in the form of cash. For purposes cash or Cash Equivalents; provided that the amount of this provision, each of the following will be deemed to be cash:
(a) any liabilities, liabilities (as shown on the Company's or such Restricted Subsidiary's most recent balance sheet, ) of the Company or any such Restricted Subsidiary (other than contingent liabilities and liabilities that are by their terms subordinated to the Notes or any Subsidiary GuaranteeGuarantee thereof) that are assumed by the transferee of any such assets or Equity Interests pursuant to a customary novation agreement that expressly releases the Company or 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 converted within 30 days by the Company or such Restricted Subsidiary into cash, cash within 30 days after such Asset Sale (to the extent of the cash received in that conversion; and
(creceived) any payment shall be deemed to be cash for purposes of Senior Debt secured by the assets sold in the Asset Salethis provision. Within 365 days after the receipt of any Net Proceeds from an Asset Sale, the Company may apply those Net Proceeds Company, at its option:
, may apply such Net Proceeds (1i) to repay permanently reduce any Senior Debt and, if of the Senior Debt repaid is revolving credit Indebtedness, Company and/or its Wholly-Owned Restricted Subsidiaries (and to correspondingly reduce commitments with respect thereto;
thereto in the case of revolving borrowings) or (2ii) to acquire all the acquisition of a controlling interest in another business, the making of a capital expenditure or substantially all the acquisition of other assets (other than assets that would be classified as current assets in accordance with GAAP), in each case, in the same or a reasonably similar line of business as the Company and its Restricted Subsidiaries were engaged in on the date of this Indenture or in any business reasonably complementary, related or incidental thereto as determined in good faith by the Board of Directors of the assets of, or a majority of the Voting Stock of, another Permitted Business;
(3) to make capital expenditures;
(4) to acquire other long-term assets that are used or useful in a Permitted Business; or
(5) for any combination of clauses (1) through (4) aboveCompany. Pending the final application of any such Net Proceeds, the Company may apply such Net Proceeds to temporarily reduce revolving credit borrowings under the Credit Facility or otherwise invest the such Net Proceeds in any manner that is not prohibited by this Indenture. Any Net Proceeds from Asset Sales that are not applied or invested as provided in the preceding first sentence of this paragraph will be deemed to constitute "Excess Proceeds." When the aggregate amount of Excess Proceeds exceeds $5.0 million within five business days thereofmillion, the Company will shall make an Asset Sale Offer offer to all Holders of Notes and all holders of other Indebtedness that is pari passu with the Notes containing provisions similar to those set forth in this Indenture with respect to offers to purchase or redeem with the proceeds of sales of assets in accordance with Section 3.09 hereof (an "Asset Sale Offer") to purchase the maximum principal amount of Notes and such other pari passu Indebtedness that may be purchased out of does not exceed the Excess Proceeds. The Proceeds at an offer price in any Asset Sale Offer will be cash in an amount equal to 100% of the principal amount thereof, plus accrued and unpaid interest and Additional InterestLiquidated Damages, if any, thereon to the date of purchase, and will be payable in cashaccordance with the procedures set forth in Section 3.10 hereof. If any Excess Proceeds remain after consummation To the extent that the aggregate principal amount of Notes tendered pursuant to an Asset Sale OfferOffer is less than the Excess Proceeds, the Company may use those any remaining Excess Proceeds for any purpose not otherwise prohibited by this Indenturegeneral corporate purposes. If the aggregate principal amount of Notes and other pari passu Indebtedness tendered into such Asset Sale Offer by Holders thereof exceeds the amount of Excess Proceeds, the Trustee shall select the Notes and such other pari passu Indebtedness to be purchased on a pro rata basis based on (with such adjustments as may be deemed appropriate by the principal amount Trustee so that only Notes in denominations of Notes and such other pari passu Indebtedness tendered$1,000, or integral multiples thereof, shall be purchased). Upon completion of each an Asset Sale Offer, the amount of Excess Proceeds will shall be reset at zero. The Asset Sale Offer must be commenced within 30 days following the date on which the aggregate amount of Excess Proceeds exceeds $5.0 million and remain open for at least 30 and not more than 40 days (unless otherwise required by applicable law). The Company shall comply with the requirements of Rule 14e-1 under the Exchange Act and any other securities laws and regulations thereunder to the extent those such laws and regulations are applicable in connection with each 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 Section 3.09 or 4.10 of this Indenture, the Company shall comply with the applicable securities laws and regulations and shall not be deemed to have breached its obligations under those provisions of this Indenture by virtue of such conflict.
Appears in 1 contract
Sources: Indenture (Sbarro Inc)
Asset Sales. The Parent Company shall not, and shall not permit any of its Restricted Subsidiaries to, consummate an Asset Sale unless:
(1a) the Parent 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 (as determined in good faith by the Company) 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 set forth in an Officers' Certificate delivered to the Trustee; and
(3b) at least 75% of the consideration Net Proceeds received in the Asset Sale by the Parent Company or such Restricted Subsidiary is in the form of cashcash or Cash Equivalents. For purposes of this provision, each of the following will shall be deemed to be cash:
(ai) any liabilities, liabilities (as shown on the Parent Company's ’s or such Restricted Subsidiary's ’s most recent balance sheet), of the Parent Company or any Restricted Subsidiary (other than contingent liabilities and liabilities that are by their terms subordinated to the Notes or any Subsidiary Note Guarantee) that are assumed by the transferee of any such assets pursuant to a customary novation agreement that releases the Parent Company or such Restricted Subsidiary from further liability;
(bii) any securities, notes or other obligations received by the Parent Company or any such Restricted Subsidiary from such transferee that are converted within 30 days by the Parent Company or such Restricted Subsidiary into cash, cash (to the extent of the cash received in that conversion) within 180 days following the closing of such Asset Sale; and
(iii) any Designated Noncash Consideration received by the Parent Company or any of its Restricted Subsidiaries in such Asset Sale having an aggregate fair market value (as determined in good faith by the Board of Directors of the Parent Company), taken together with all other Designated Noncash Consideration received pursuant to this clause (iii) that is at that time outstanding, not to exceed the greater of (A) $75 million and (B) five percent (5%) of the total assets of the Parent Company and its Restricted Subsidiaries on a consolidated basis, as shown on the most recent balance sheet of the Parent Company and determined in accordance with GAAP (with the fair market value of each item of Designated Noncash Consideration being measured at the time received without giving effect to subsequent changes in value), shall be deemed to be cash for purposes of this paragraph and for no other purpose; and
(c) any payment If such Asset Sale involves the disposition of Senior Debt secured by Collateral, the assets sold in Parent Company or such Subsidiary has complied with the Asset Saleprovisions of this Indenture and the Security Documents. Within 365 360 days after the receipt of any Net Proceeds from an Asset Sale, the Parent Company may or a Restricted Subsidiary must apply those such Net Proceeds at its optionProceeds:
(1a) to be reinvested in the business of the Parent Company or a Restricted Subsidiary and to the extent that the assets that were the subject of such Asset Sale constituted Collateral such replacement assets shall be required to constitute Collateral; provided that if the Parent Company or a Restricted Subsidiary enters into a binding agreement to acquire such assets within such 360 day period, such Net Proceeds shall be deemed to have been applied pursuant to this clause (a) so long as such Net Proceeds are applied to acquire such assets within 180 days following such 360th day;
(b) to repay Indebtedness constituting Senior Debt Priority Obligations (and, if in the case of Senior Debt repaid is Priority Obligations that are revolving credit Indebtednessobligations, to correspondingly permanently reduce the commitments with respect thereto;
(2) to acquire all or substantially all of the assets of, or a majority of the Voting Stock of, another Permitted Business;
(3) to make capital expenditures;
(4) to acquire other long-term assets that are used or useful in a Permitted Business); or
(5c) to make an offer to purchase the Notes at 100% of principal amount, plus accrued and unpaid interest, if any, and if applicable, (x) in the case of Net Proceeds from Collateral, to make an offer to the holders of other Permitted Additional Pari Passu Obligations and (y) in the case of any other Net Proceeds, to make an offer to the holders of other Indebtedness of the Company that ranks pari passu with the Notes (the “Other Debt”), in either case (x) and (y) that by its terms requires the Parent Company or any of its Restricted Subsidiaries to make an offer to purchase such Permitted Additional Pari Passu Obligations or Other Debt, as applicable, upon consummation of an Asset Sale, to purchase such Permitted Additional Pari Passu Obligations or Other Debt, as applicable, on a pro rata basis with the Notes in accordance with Section 3.09. Any Net Proceeds that remain following compliance by the Company with its obligations set forth in the second paragraph of this Section 4.07 may be used for any combination of clauses (1) through (4) abovepurpose not otherwise prohibited by this Indenture. Pending the final application of any Net Proceeds, the Company may temporarily reduce revolving credit borrowings or otherwise invest the Net Proceeds in any manner that is not prohibited by this Indenture. Any Net Proceeds from Asset Sales that are not applied or invested as provided in the preceding paragraph will constitute "Excess Proceedsborrowings." When the aggregate amount of Excess Proceeds exceeds $5.0 million within five business days thereof, the Company will make an Asset Sale Offer to all Holders of Notes and all holders of other Indebtedness that is pari passu with the Notes containing provisions similar to those set forth in this Indenture with respect to offers to purchase or redeem with the proceeds of sales of assets in accordance with Section 3.09 hereof to purchase the maximum principal amount of Notes and such other pari passu Indebtedness that may be purchased out of the Excess Proceeds. The offer price in any Asset Sale Offer will be equal to 100% of principal amount plus accrued and unpaid interest and Additional Interest, if any, to the date of purchase, and will be payable in cash. If any Excess Proceeds remain after consummation of an Asset Sale Offer, the Company may use those Excess Proceeds for any purpose not otherwise prohibited by this Indenture. If the aggregate principal amount of Notes and other pari passu Indebtedness tendered into such Asset Sale Offer exceeds the amount of Excess Proceeds, the Trustee shall select the Notes and such other pari passu Indebtedness to be purchased on a pro rata basis based on the principal amount of Notes and such other pari passu Indebtedness tendered. Upon completion of each Asset Sale Offer, the amount of Excess Proceeds will be reset at zero. The Company shall comply with the requirements of Rule 14e-1 under the Exchange Act and any other securities laws and regulations thereunder to the extent 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 4.10 of this Indenture, the Company shall comply with the applicable securities laws and regulations and shall not be deemed to have breached its obligations under those provisions of this Indenture by virtue of such conflict.
Appears in 1 contract
Sources: Indenture (Cenveo, Inc)
Asset Sales. The Company shall not, and shall not permit any of its Restricted Subsidiaries to, 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 of the assets or Equity Interests issued or sold or otherwise disposed of;
of and (2) 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; and
(3ii) at least 7580% of the consideration received in the Asset Sale therefor by the Company or such Restricted Subsidiary is in the form of cash. For purposes ; provided, that the amount of this provision, each of the following will be deemed to be cash:
(ax) any liabilities, liabilities (as shown on the Company's or such Restricted Subsidiary's most recent balance sheet), of the Company or any Restricted Subsidiary (other than contingent liabilities and liabilities that are by their terms subordinated to the Notes or any Subsidiary Guaranteeguarantee thereof) that are assumed by the transferee of any such assets pursuant to a customary novation agreement that releases the Company or 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 within 30 days by the Company or such Restricted Subsidiary into cash, cash (to the extent of the cash received in that conversion; and
(c) any payment received), shall be deemed to be cash for purposes of Senior Debt secured by the assets sold in the Asset Salethis provision. Within 365 270 days after the receipt of any Net Proceeds from an Asset Sale, the Company may apply those such Net Proceeds Proceeds, at its option:
, (1a) to repay or cause to be repaid Senior Debt andDebt, if the Senior Debt repaid is revolving credit Indebtedness, to correspondingly reduce commitments with respect thereto;
or (2b) to acquire all or substantially all the acquisition of a majority of the assets of, or a majority of the Voting Stock of, another Permitted Business;
(3) to make , the making of a capital expenditures;
(4) to acquire expenditure or the acquisition of other long-term assets that are used or useful in a Permitted Business; or
(5) for any combination of clauses (1) through (4) above. Pending the final application of any such Net Proceeds, the Company may temporarily reduce revolving credit borrowings or otherwise invest the such Net Proceeds in any manner that is not prohibited by this Indenture. Any Net Proceeds from such Asset Sales Sale that are not finally applied or invested as provided in the preceding first sentence of this paragraph will be deemed to constitute "Excess Proceeds." When the aggregate amount of Excess Proceeds --------------- exceeds $5.0 million within five business days thereof10.0 million, the Company will shall be required to make an Asset Sale Offer offer to all Holders of Notes (including Additional Notes) and all holders of other Indebtedness that is pari passu with the Notes Indebtedness containing provisions similar to those set forth in this Indenture Section 3.09 hereof with respect to offers to purchase or redeem with the proceeds of sales of assets in accordance with Section 3.09 hereof (an "Asset Sale Offer") to purchase the maximum a principal amount of Notes and ---------------- such other pari passu Indebtedness that may be purchased out equal to the amount of the such Excess Proceeds. The offer , at a purchase price in any Asset Sale Offer will be equal to 100% of principal the amount plus accrued in cash and unpaid interest and Additional Interest, Common Stock payable by the Company pursuant to Section 3.07 as if any, to such Notes were being redeemed by the Company on the date of purchasethe applicable Asset Sale, in accordance with the procedures set forth in Section 3.09 hereof and will be payable in cashthe documentation with respect to such other Indebtedness, respectively. If To the extent that any Excess Proceeds remain after consummation of an Asset Sale Offer (including that part of the Excess Proceeds corresponding to the portion of the purchase price payable in Common Stock under such Asset Sale Offer), the Company may use those such Excess Proceeds for any purpose not otherwise prohibited by this Indenture. If the aggregate principal amount of Notes and such other pari passu Indebtedness tendered into such Asset Sale Offer surrendered by Holders thereof exceeds the amount of Excess ProceedsProceeds allocable to the repurchase of the Notes (in relation to any other pari passu Indebtedness containing provisions similar to the provisions of Section 3.09 hereof), the Trustee shall select the Notes and such other pari passu Indebtedness to be purchased on a pro rata basis based on the principal amount of Notes and such other pari passu Indebtedness tenderedbasis. Upon completion of each Asset Sale Offersuch offer to purchase, the amount of Excess Proceeds will shall be reset at zero. The Company In determining the fair market value of any assets or Equity Interests issued, sold or otherwise disposed of, such determination shall comply with be evidenced by a resolution of the requirements Board of Rule 14e-1 under the Exchange Act and any other securities laws and regulations thereunder Directors set forth in an Officers' Certificate delivered to the extent those laws and regulations are applicable in connection with each repurchase of Notes pursuant to an Asset Sale Offer. To the extent that the provisions of any securities laws or regulations conflict with the provisions of Section 3.09 or 4.10 of this Indenture, the Company shall comply with the applicable securities laws and regulations and shall not be deemed to have breached its obligations under those provisions of this Indenture by virtue of Trustee if such conflictfair market value exceeds $15.0 million.
Appears in 1 contract
Sources: Indenture (Timco Engine Center Inc)
Asset Sales. The Company shall not, and 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 (evidenced by a Board Resolution delivered to the Trustee) of the assets or Equity Interests issued or sold or otherwise disposed of;
of and (2) 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; and
(3ii) at least 7580% of the consideration therefor received in the Asset Sale by the Company or such Restricted Subsidiary is in the form of cash. For purposes cash or Cash Equivalents; provided that the amount of this provision, each of the following will be deemed to be cash:
(ax) any liabilities, liabilities (as shown on the Company's or such Restricted Subsidiary's most recent balance sheet), of the Company or any Restricted Subsidiary (other than contingent liabilities and liabilities that are by their terms subordinated to the Notes or any Subsidiary Guaranteeguarantee thereof) that are assumed by the transferee of any such assets pursuant to a customary novation agreement that releases the Company or 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 within 30 days by the Company or such Restricted Subsidiary into cash, cash (to the extent of the cash received in that conversion; and
(c) any payment received), shall be deemed to be cash for purposes of Senior Debt secured by the assets sold in the Asset Salethis provision. Within 365 270 days after the receipt of any Net Proceeds from an Asset Sale, the Company may apply those such Net Proceeds Proceeds, at its option:
, (1a) to repay Senior Debt and, if the Senior Debt repaid is revolving credit Indebtedness, to correspondingly reduce commitments with respect thereto;
(2) to acquire all or substantially all of the assets of, or a majority of the Voting Stock of, another Permitted Business;
(3) to make capital expenditures;
(4) to acquire other long-term invest in properties and assets that are will be used or useful in a Permitted Business; or
, (5b) for any combination to the acquisition of clauses (1) through (4) above. Pending the final application of any Net Proceedsa controlling interest in another business, the Company may temporarily reduce revolving credit borrowings making of a capital expenditure or otherwise invest the Net Proceeds acquisition of other assets, in any manner that is not prohibited by this Indentureeach case, in a Permitted Business or (c) to repay Indebtedness under a Credit Facility. Any Net Proceeds from Asset Sales that are not applied or invested as provided in the preceding first sentence of this paragraph will shall be deemed to constitute "Excess Available Asset Sale Proceeds." When the aggregate amount of Excess Available Asset Sale Proceeds exceeds $5.0 million within five business days thereofmillion, the Company will shall be required to make an Asset Sale Offer offer to all Holders of Notes and all holders of other Indebtedness that is pari passu with the Notes containing provisions similar (an "EXCESS PROCEEDS OFFER") pursuant to those set forth in this Indenture with respect to offers to purchase or redeem with the proceeds of sales of assets in accordance with Section 3.09 hereof to purchase the maximum principal amount of Notes and such other pari passu Indebtedness that may be purchased out of the Excess Available Asset Sale Proceeds. The , at an offer price in any Asset Sale Offer will be cash in an amount equal to 100% of the principal amount thereof plus accrued and unpaid interest and Additional InterestLiquidated Damages thereon, if any, to the date of purchase, and will be payable in cashaccordance with the procedures set forth in Section 3.09 hereof. If To the extent that any Excess Available Asset Sale Proceeds remain after consummation of an Asset Sale Excess Proceeds Offer, the Company may use those Excess such Available Asset Sale Proceeds for any purpose not otherwise prohibited by this Indenturegeneral corporate purposes. If the aggregate principal amount of Notes and other pari passu Indebtedness tendered into such Asset Sale Excess Proceeds Offer surrendered by Holders thereof exceeds the amount of Excess Available Asset Sale Proceeds, the Trustee shall select the Notes and such other pari passu Indebtedness to be purchased on a pro rata basis based on the principal amount of Notes and such other pari passu Indebtedness tenderedpursuant to Section 3.09 hereof. Upon completion of each Asset Sale Offersuch offer to purchase, the amount of Excess Available Asset Sale Proceeds will shall be reset at zero. The Company shall comply with the requirements of Rule 14e-1 under the Exchange Act and any other securities laws and regulations thereunder to the extent 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 4.10 of this Indenture, the Company shall comply with the applicable securities laws and regulations and shall not be deemed to have breached its obligations under those provisions of this Indenture by virtue of such conflict.
Appears in 1 contract
Sources: Indenture (Gni Group Inc /De/)
Asset Sales. The Company shall will not, and shall will not permit any of its Restricted Material Subsidiaries to, consummate an Asset Sale unless:
(1) All such Assets Sales consummated since the Original Issue Date do not exceed $47,500,000 in the aggregate;
(2) the Company (or the Restricted a Material 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 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 set forth in an Officers' Certificate delivered to the Trustee; and
(3) at least 75% of the aggregate consideration received in the respect of such Asset Sale by the Company or such Restricted Subsidiary and its Material Subsidiaries and all other Asset Sales since the Original Issue Date is in the form of cash. For cash or Cash Equivalents (or a combination thereof) but excluding cash held in escrow; provided that, for purposes of this provision, each of the following will be deemed to be cash:
(a) any liabilities, as shown on the Company's or such Restricted Subsidiary's ’s most recent consolidated balance sheet, of the Company or any Restricted Material Subsidiary (other than contingent liabilities liabilities, Subordinated Debt and liabilities that are by their terms subordinated to the Notes or any Subsidiary Guaranteeobligations in respect of preferred stock) that are assumed by the transferee of any such assets or Equity Interests pursuant to customary agreements (or other legal documentation with the same effect) that includes a customary novation agreement that releases full release or indemnity of the Company or such Restricted Material Subsidiary from further liabilityany and all liability therefor;
(b) any securities, notes or other obligations received by the Company or any such Restricted Material Subsidiary from such transferee that are converted within 30 days by the Company or such Restricted Material Subsidiary into cashcash within 90 days after the date of the Asset Sale, to the extent of the cash received in that conversion; and
(c) with respect to any payment Asset Sale of Senior Debt secured oil and gas properties by the assets sold Company or a Material Subsidiary in which the Company or such Material Subsidiary retains an interest, any agreement by the transferee (or any Affiliate thereof) to pay all or a portion of the costs and expenses related to the exploration, development, completion or production of such properties and activities related thereto. Notwithstanding the foregoing, the 75% limitation referred to in clause (3) above shall be deemed satisfied with respect to any Asset SaleSale in which the Cash or Cash Equivalents portion of the consideration received therefrom, determined in accordance with clause (3) above on an after-tax basis, is equal to or greater than what the after-tax proceeds would have been had such Asset Sale complied with the aforementioned 75% limitation. Within 365 days after the receipt of any Net Proceeds, Hedge Receipts and/or Net Insurance/Condemnation Proceeds from an Asset Sale, Hedge Monetization or Casualty Event, the Company (or the applicable Material Subsidiary, as the case may be) may apply those such Net Proceeds Proceeds, Hedge Receipts and/or Net Insurance/Condemnation Proceeds, at its option:
(1) to repay Senior repay, prepay, redeem or purchase (x) Debt andand other obligations under the Bank Facility incurred under clause (1) of the definition of Permitted Debt; provided that, if any such action shall be accompanied by a reduction of the Senior related commitments or facility amount, or (y) any Debt repaid is revolving credit Indebtednessand other obligations that were secured by the assets sold in such Asset Sale, subject to correspondingly reduce commitments with respect theretosuch Hedge Monetization and/or subject to such Casualty Event, in each case, on a senior basis to the Notes to the extent expressly permitted under this Indenture;
(2) to acquire all or substantially all of the assets of, or a majority of the Voting Stock of, another Permitted Business;invest in Additional Assets; or
(3) to make capital expenditures;
(4) to acquire other long-term assets that are used or useful expenditures in a Permitted respect of the Oil and Gas Business; or
(5) for any combination However, pending application or investment of such Net Proceeds, Hedge Receipts and/or Net Insurance/Condemnation Proceeds as provided in clauses (1) through (43) above. Pending of the final application of any immediately preceding paragraph, such Net Proceeds, the Company Hedge Receipts and/or Net Insurance/Condemnation Proceeds may be applied to temporarily reduce revolving credit borrowings Debt or otherwise invest the Net Proceeds invested in any manner that is not prohibited by this Indenture. Any Net Proceeds, Hedge Receipts and/or Net Insurance/Condemnation Proceeds from Asset Sales that are not applied or invested as provided in the preceding paragraph clauses (1) through (3) above will constitute "“Excess Proceeds." When ” Within ten (10) Business Days after the aggregate amount of Excess Proceeds exceeds $5.0 million within five business days thereof10.0 million, the Company will make an Asset Sale Offer offer (a “Specified Offer”) to all Holders of Notes and all holders of other Indebtedness that is pari passu with the Notes containing provisions similar to those set forth in this Indenture with respect to offers to purchase or redeem with the proceeds of sales of assets in accordance with Section 3.09 hereof to purchase the maximum principal amount of Notes and such other pari passu Indebtedness that may be purchased out of with the Excess Proceeds. The offer price for the Notes in any Asset Sale Specified Offer will be equal to 100% of the principal amount plus accrued and unpaid interest and Additional Interestinterest, if any, to but excluding the date of purchase, and will be payable in cashcash (provided that, in the case of a Specified Offer to purchase New Money Notes with Net Proceeds, such offer price shall not be less than the price at which such Notes could be redeemed pursuant to Section 1103 on the date of redemption) plus any other Obligations, if any, in respect of such Notes. If any Excess Proceeds remain after consummation of an Asset Sale a Specified Offer, the Company or any Material Subsidiary may use those Excess Proceeds for any purpose not otherwise prohibited by this Indenture. If the aggregate principal amount of Notes and other pari passu Indebtedness tendered into such Asset Sale Offer exceeds the amount of Excess Proceeds, New Money Notes shall be repurchased until such Notes are Paid in Full (and in any event prior to the Trustee shall select repurchase of any Exchange Notes) and the Notes and such other pari passu Indebtedness to shall otherwise be purchased repurchased on a pro rata basis based on the aggregate principal amount of Notes and such other pari passu Indebtedness tenderedtendered by the holders thereof. Upon completion of each Asset Sale Specified Offer, the amount of Excess Proceeds will be reset at zero. Notwithstanding the foregoing, the sale, conveyance or other disposition of all or substantially all of the properties or assets of the Company and its Material Subsidiaries, taken as a whole, will be governed by Section 801 of this Indenture and not by this Section 1015. The Company shall will comply with the requirements of Rule 14e-1 under the Exchange Act and any other securities laws and regulations thereunder to the extent those laws and regulations are applicable in connection with each repurchase of Notes pursuant to an Asset Sale a Specified Offer. To the extent that the provisions of any such securities laws or regulations conflict with the provisions this Section 1015, or compliance with this Section 1015 would constitute a violation of Section 3.09 any such securities laws or 4.10 of this Indentureregulations, the Company shall will comply with the applicable securities laws and or regulations and shall will not be deemed to have breached its obligations under those provisions of this Indenture Section 1015 by virtue of such conflictcompliance. In the event that, pursuant to this Section 1015, the Company is required to commence a Specified Offer, it will follow the procedures specified below:
(1) The Specified Offer shall be made to all Holders. The Specified Offer will remain open for a period of at least 20 Business Days following its commencement and not more than 30 Business Days, except to the extent that a longer period is required by applicable law (the “Offer Period”). No later than three (3) 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. Payment for any Notes so purchased will be made in the same manner as principal payments are made at Stated Maturity or upon redemption.
(2) If the Purchase Date is on or after an interest record date and on or before the related Interest Payment Date, any accrued and unpaid interest will be paid to the Person in whose name a Note is registered at the close of business on such record date, and no additional interest will be payable to Holders who tender Notes pursuant to the Specified Offer.
(3) Upon the commencement of a Specified Offer, the Company will send a notice to the Trustee and each of the Holders. The notice will contain all instructions and materials necessary to enable such Holders to tender Notes pursuant to the Specified Offer. The notice, which will govern the terms of the Specified Offer, will state:
(a) that the Specified Offer is being made pursuant to this Section 1015 and the length of time the Specified Offer will remain open;
(b) the Offer Amount, the purchase price and the Purchase Date;
(c) that any Note not tendered or accepted for payment will continue to accrue interest;
(d) that, unless the Company defaults in making such payment, any Note accepted for payment pursuant to the Specified Offer will cease to accrue interest after the Purchase Date;
(e) that Holders electing to have a Note purchased pursuant to a Specified Offer may elect to have Notes purchased in minimum denominations of U.S.$1,000 and integral multiples of U.S.$1,000 in excess of U.S.$1,000 only;
(f) that Holders electing to have Notes purchased pursuant to any Specified Offer will be required to surrender the Notes, with the form entitled “Option of Holder to Elect Purchase” attached to the Notes completed, or transfer by book entry transfer, to the Company, a depositary, if appointed by the Company, or a Paying Agent at the address specified in the notice prior to the close of business on the third Business Day preceding the Purchase Date;
(g) that Holders will be entitled to withdraw their election if the Company, the depositary or the Paying Agent, as the case may be, receives, not later than the expiration of the Offer Period, a 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;
(h) that, if the aggregate principal amount of Notes surrendered by Holders thereof exceeds the Offer Amount, the Company will repurchase the New Money Notes on a pro rata basis until such Notes are Paid in Full (and in any event prior to any repurchase of the Exchange Notes) and thereafter repurchase the Notes on a pro rata basis based on the principal amount of Notes (with such adjustments as may be deemed appropriate by the Company so that only Notes in minimum denominations of U.S.$1,000, or an integral multiple of U.S.$1,000 in excess of U.S.$1,000, will be purchased); and
(i) that Holders whose Notes were purchased only in part will be issued new Notes equal in principal amount to the unpurchased portion of the Notes surrendered (or transferred by book-entry transfer), which unpurchased portion must be equal to U.S.$1,000 in principal amount or an integral multiple of U.S.$1,000 in excess of U.S.$1,000.
(4) On or before the Purchase Date, the Company will, to the extent lawful, accept for payment, on a pro rata basis (as provided in clause (3)(h) above) to the extent necessary, the Offer Amount of Notes or portions thereof tendered pursuant to the Specified Offer, or if less than the Offer Amount has been tendered, all Notes tendered, and will deliver or cause to be delivered to the Trustee the Notes properly accepted together with an Officer’s Certificate stating that such Notes or portions thereof were accepted for payment by the Company in accordance with the terms of this Section 1015. 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 Specified Offer on the Purchase Date.
Appears in 1 contract
Asset Sales. The Company shall not, and 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 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 set forth in an Officers' Certificate delivered to the Trustee; and
) of the assets or Equity Interests issued or sold or otherwise disposed of and (3ii) at least 75% of the consideration therefor received in the Asset Sale by the Company or such Restricted Subsidiary is in the form of cash. For purposes ; provided that the amount of this provision, each of the following will be deemed to be cash:
(ax) any liabilities, liabilities (as shown on the Company's or such Restricted Subsidiary's most recent balance sheet, ) of the Company or any Restricted Subsidiary (other than contingent liabilities and liabilities that are by their terms subordinated to the Notes or any Subsidiary Guaranteeguarantee thereof) that are assumed by the transferee of any such assets pursuant to a customary novation agreement or other agreement that releases or indemnifies the Company or 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 within 30 days by the Company or such Restricted Subsidiary into cash, cash (to the extent of the cash received in that conversion; and
(c) any payment received), shall be deemed to be cash for purposes of Senior Debt secured by the assets sold in the Asset Salethis provision. Within 365 270 days after the receipt of any Net Proceeds from an Asset Sale, the Company may apply those such Net Proceeds at its option:
, (1a) to repay permanently repay, reduce or secure letters of credit in respect of Senior Debt and, if the Senior Debt repaid is revolving credit Indebtedness, (and to correspondingly reduce commitments with respect thereto;
thereto in the case of revolving borrowings), and/or (2b) to acquire all the acquisition of a controlling interest in another business, the making of a capital expenditure or substantially all Permitted Investment or the acquisition of other assets, in each case, for use in the assets of, same or a majority similar line of business as the Voting Stock of, another Permitted Business;
(3) to make capital expenditures;
(4) to acquire other long-term assets that are used Company was engaged in on the date of such Asset Sale or useful in a Permitted Business; or
(5) for any combination of clauses (1) through (4) abovereasonable extensions thereof. Pending the final application of any such Net Proceeds, the Company may temporarily reduce indebtedness under the Credit Facility (or any alternative or subsequent revolving credit agreement where borrowings thereunder constitute Senior Debt or Debt of a Subsidiary) or otherwise invest the such Net Proceeds in any manner that is not prohibited by this the Indenture. Any Net Proceeds from Asset Sales that are not applied or invested as provided in the preceding first sentence of this paragraph will be deemed to constitute "Excess Proceeds." When the aggregate amount of Excess Proceeds exceeds $5.0 million within five business days thereof10.0 million, the Company will be required to make an offer (an "Asset Sale Offer Offer") to all Holders of Notes and all holders of any other Indebtedness that is pari passu Pari Passu Debt outstanding with provisions requiring the Notes containing provisions similar Company to those set forth in this Indenture with respect to offers make an offer to purchase or redeem such indebtedness with the proceeds from any Asset Sale as follows: (A) the Company will make an offer to purchase from all holders of sales of assets the Notes, in accordance with Section 3.09 hereof to purchase the maximum principal amount of Notes and such other pari passu Indebtedness that may be purchased out of the Excess Proceeds. The offer price in any Asset Sale Offer will be equal to 100% of principal amount plus accrued and unpaid interest and Additional Interest, if any, to the date of purchase, and will be payable in cash. If any Excess Proceeds remain after consummation of an Asset Sale Offer, the Company may use those Excess Proceeds for any purpose not otherwise prohibited by this Indenture. If the aggregate principal amount of Notes and other pari passu Indebtedness tendered into such Asset Sale Offer exceeds the amount of Excess Proceeds, the Trustee shall select the Notes and such other pari passu Indebtedness to be purchased on a pro rata basis based on the principal amount of Notes and such other pari passu Indebtedness tendered. Upon completion of each Asset Sale Offer, the amount of Excess Proceeds will be reset at zero. The Company shall comply with the requirements of Rule 14e-1 under the Exchange Act and any other securities laws and regulations thereunder to the extent 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 4.10 of this Indenture, the Company shall comply with the applicable securities laws and regulations and shall not be deemed to have breached its obligations under those provisions of this Indenture by virtue of such conflict.procedures set forth in
Appears in 1 contract
Asset Sales. The Company shall not, and shall not permit any of its Restricted Subsidiaries to, consummate directly or indirectly, 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 of the assets or Equity Interests issued or sold or otherwise disposed of;
Fair Market Value (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
) of the assets or Properties issued or sold or otherwise disposed of and (3ii) at least 7585% of the consideration therefor received in the Asset Sale by the Company or such Restricted Subsidiary is in the form of cash. For purposes cash or Cash Equivalents; provided that the amount -------- of this provision, each of the following will be deemed to be cash:
(ax) any liabilities, liabilities (as shown on the Company's or such Restricted Subsidiary's most recent balance sheet, ) of the Company or any Restricted Subsidiary (other than contingent liabilities and liabilities that are Subordinated Indebtedness or otherwise by their terms subordinated to the Notes Securities 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 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 30 days by the Company or such Restricted Subsidiary into cash, cash within 180 days of closing such Asset Sale (to the extent of the cash received in that conversion; and
(c) any payment received), shall be deemed to be cash for purposes of Senior Debt secured by the assets sold in the Asset Salethis provision. Within 365 180 days after the receipt of any Net Cash Proceeds from an any Asset Sale, the Company may (i) apply those all or any of the Net Cash Proceeds at its option:
(1) therefrom to repay Senior Debt andIndebtedness (other than Subordinated Indebtedness) of the Company or any Subsidiary, if provided, in each case, that the Senior Debt repaid is related loan commitment of any revolving credit Indebtednessfacility or other borrowing (if any) is thereby permanently reduced by the amount of such Indebtedness so repaid, to correspondingly reduce commitments with respect thereto;
or (2ii) to acquire invest all or substantially all any part of the assets of, or a majority of the Voting Stock of, another Permitted Business;
(3) to make Net Cash Proceeds thereof in properties and other capital expenditures;
(4) to acquire other long-term assets that are replace the properties or other capital assets that were the subject of such Asset Sale or in other properties or other capital assets that will be used or useful in a Permitted the Business; or
(5) for any combination of clauses (1) through (4) above. Pending the final application of any such Net Cash Proceeds, the Company may temporarily reduce borrowings under any revolving credit borrowings facility or otherwise invest the such Net Cash Proceeds in any manner that is not prohibited by this Indenture. Any Net Cash Proceeds from an Asset Sales Sale that are not applied or invested as provided in the preceding first sentence of this paragraph will be deemed to constitute "Excess ProceedsAvailable Proceeds Amount." When ------------------------- the aggregate amount of Excess Available Proceeds Amount exceeds $5.0 million within five business days thereof2,500,000, the Company will shall make an Asset Sale Offer offer to purchase, from all Holders of Notes the Securities and any then outstanding Pari Passu Indebtedness required to be repurchased or repaid on a permanent basis in connection with an Asset Sale, an aggregate principal amount of Securities and any such Pari Passu Indebtedness equal to such Available Proceeds Amount as follows:
(A) The Company shall make an offer to purchase (an "Asset ----- Proceeds Offer") from all holders Holders of other Indebtedness that is pari passu the Securities in accordance with the Notes containing provisions similar to those -------------- procedures set forth in this Indenture with respect to offers to purchase or redeem with the proceeds of sales of assets in accordance with Section 3.09 hereof to purchase the maximum principal amount (expressed as a multiple of Notes and such other pari passu Indebtedness $1,000) of Securities that may be purchased out of an amount (the Excess Proceeds. "Payment Amount") equal to the product of such Available -------------- Proceeds Amount multiplied by a fraction, the numerator of which is the outstanding principal amount of the Securities and the denominator of which is the sum of the outstanding principal amount of the Securities and such Pari Passu Indebtedness, if any (subject to probation in the event such amount is less than the aggregate Offered Price (as defined in clause (ii) below) of all Securities tendered), and (B) to the extent required by any such Pari Passu Indebtedness and provided there is a permanent reduction in the principal amount of such Pari Passu Indebtedness, the Company shall make an offer to purchase such Pari Passu Indebtedness (a "Pari Passu Offer") in an amount (the "Pari Passu Indebtedness Amount") ---------------- ------------------------------ equal to the excess of the Available Proceeds Amount over the Payment Amount.
(ii) The offer price for the Securities shall be payable in any Asset Sale Offer will be cash in an amount equal to 100% of the principal amount of the Securities tendered pursuant to an Asset Proceeds Offer, plus accrued and unpaid interest and Additional Interestinterest, if any, to the date such Asset Proceeds Offer is consummated (the "Offered ------- Price"), in accordance with the procedures set forth in this Indenture. To ----- the extent that the aggregate Offered Price of purchase, and will be payable in cash. If any Excess Proceeds remain after consummation of the Securities tendered pursuant to an Asset Sale OfferProceeds Offer is less than the Payment Amount relating thereto or the aggregate amount of the Pari Passu Indebtedness that is purchased or repaid pursuant to the Pari Passu Offer is less than the Pari Passu Indebtedness Amount (such shortfall constituting an "Asset ----- Proceeds Deficiency"), the Company may use those Excess such Asset Proceeds Deficiency, ------------------- or a portion thereof, for any purpose not otherwise prohibited by this Indenture. general corporate purposes, subject to the limitations of Section 4.03.
(iii) If the aggregate principal amount Offered Price of Notes Securities validly tendered and other pari passu Indebtedness tendered into such Asset Sale Offer not withdrawn by Holders thereof exceeds the amount of Excess ProceedsPayment Amount, the Trustee shall select the Notes and such other pari passu Indebtedness Securities to be purchased will be selected on a pro rata basis based on the principal amount of Notes and such other pari passu Indebtedness tenderedbasis. Upon completion of each Asset Sale --- ---- such Net Proceeds Offer and Pari Passu Offer, the amount of Excess Available Proceeds will Amount shall be reset at to zero. The Company shall not permit any Subsidiary to enter into or suffer to exist any agreement (excluding Permitted Liens) 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 Proceeds Offer following any Asset Sale. The Company will comply with the requirements of Rule 14e-1 under the Exchange Act Act, and any other securities laws and regulations thereunder thereunder, if applicable, in the event that an Asset Sale occurs and the Company is required to purchase Securities as described above. Any amounts remaining after the extent those laws and regulations are applicable in connection with each repurchase purchase of Notes Securities pursuant to an Asset Sale Offer. To Proceeds Offer shall be returned by the extent that Trustee to the provisions of any securities laws or regulations conflict with the provisions of Section 3.09 or 4.10 of this Indenture, the Company shall comply with the applicable securities laws and regulations and shall not be deemed to have breached its obligations under those provisions of this Indenture by virtue of such conflictCompany.
Appears in 1 contract
Sources: Indenture (Call Points Inc)
Asset Sales. The Company shall not, and 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 shall receive consideration at the time of the Asset Sale at least equal to the fair market value of the assets or Equity Interests issued or sold or otherwise disposed of;
; (2ii) for any Asset Sale, the fair market value is shall be 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
and (3iii) at least 75% of the consideration received in the Asset Sale by the Company or such Restricted Subsidiary is in the form of cash. For purposes of this provision, each of the following will shall be deemed to be cash:
: (aA) any liabilities, as shown on the Company's or such Restricted Subsidiary's most recent balance sheet, of the Company or any Restricted Subsidiary (other than contingent liabilities and liabilities that are shall be by their terms subordinated to the Notes or any Subsidiary Guarantee) that are shall be assumed by the transferee of any such assets pursuant to a customary novation agreement that releases the Company or such Restricted Subsidiary from further liability;
; (bB) any securities, notes or other obligations that shall be received by the Company or any such Restricted Subsidiary from such transferee that are contemporaneously, subject to ordinary settlement periods, converted within 30 days by the Company or such Restricted Subsidiary into cash, to the extent of the cash received in that conversion; and
(cC) not more than $10.0 million, at any one time outstanding, of other securities, notes or other obligations, that shall be secured by the asset or assets sold, 42 leased, conveyed or otherwise disposed, received by the Company or any such Restricted Subsidiary from such transferee that are converted by the Company or such Restricted Subsidiary into cash within 180 days, to the extent of the cash received in that conversion; and (D) any payment of Senior Debt that shall be secured by the assets sold in the Asset Sale. Within 365 360 days after the receipt of any Net Proceeds from an Asset Sale, the Company may apply those Net Proceeds at its option:
option either to (1a) to repay Senior Debt and, if the Senior Debt repaid is revolving credit Indebtedness, to correspondingly reduce commitments with respect thereto;
; (2b) to acquire all or substantially all of the assets of, or a majority of the Voting Stock of, another Permitted Business;
; (3c) to make a capital expenditures;
expenditure; or (4d) to acquire other long-term assets that are used or useful in a Permitted Business; or
(5) for any combination of clauses (1) through (4) above. Pending the final application of any Net Proceeds, the Company may temporarily reduce revolving credit borrowings or otherwise invest the Net Proceeds in any manner that is not prohibited by this Indenture. Any Net Proceeds from Asset Sales that are not applied or invested as provided in the preceding paragraph will shall constitute "Excess ProceedsEXCESS PROCEEDS." When Within 30 days after each date when the aggregate amount of Excess Proceeds exceeds $5.0 million within five business days thereof10.0 million, the Company will shall make an Asset Sale Offer to all Holders of Notes and all holders of other Indebtedness that is pari passu PARI PASSU with the Notes containing provisions similar to those set forth in this Indenture with respect to offers to purchase or redeem with the proceeds of sales of assets in accordance with Section 3.09 hereof to purchase the maximum principal amount of Notes and such other pari passu PARI PASSU Indebtedness that may be purchased out of the Excess Proceeds. The offer price in any Asset Sale Offer will shall be equal to 100% of principal amount plus accrued and unpaid interest and Additional Special Interest, if any, to the date of purchase, and will shall be payable in cash. If any Excess Proceeds shall remain after consummation of an Asset Sale Offer, the Company may use those Excess Proceeds for any purpose not otherwise prohibited by this IndentureIndenture and such remaining proceeds shall cease to be Excess Proceeds with respect to future Asset Sales. If the aggregate principal amount of Notes and other pari passu PARI PASSU Indebtedness tendered into such Asset Sale Offer exceeds the amount of Excess Proceeds, the Trustee shall select the Notes and such other pari passu PARI PASSU Indebtedness to be purchased on a pro rata basis based on the principal amount of Notes and such other pari passu Indebtedness tenderedbasis. Upon completion of each Asset Sale Offer, the amount of Excess Proceeds will shall be reset at zero. The Company shall comply with the requirements of Rule 14e-1 under the Exchange Act and any other securities laws and regulations thereunder to the extent 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 Sections 3.09 or 4.10 of this Indenture, the Company shall will comply with the applicable securities laws and regulations and shall will not be deemed to have breached its obligations under those provisions Sections 3.09 or 4.10 of this the Indenture by virtue of such conflict.
Appears in 1 contract
Sources: Indenture (Carters Imagination Inc)
Asset Sales. (a) The Company shall not, and shall not permit any of its Restricted Subsidiaries Subsidiary to, directly or indirectly, consummate an any Asset Sale unless:
: (1i) the Company or such Restricted Subsidiary receives consideration at the time of such Asset Sale at least equal to the Fair Market Value of the assets included in such Asset Sale; and (ii) at least 80% of the total consideration received at the closing of such Asset Sale consists of cash or Cash Equivalents and at least 80% of the total consideration received after taking into account all final purchase price adjustments and/or contingent payments (such as working capital adjustment or earn-out provisions) expressly contemplated by the Asset Sale transaction documents, when received, consists of cash or Cash Equivalents. For purposes of clause (ii), the following shall be deemed to be cash: (A) the amount (without duplication) of any Indebtedness (other than Subordinated Indebtedness) of the Company or such Restricted Subsidiary that is expressly assumed by the transferee in such Asset Sale and with respect to which the Company or such Restricted Subsidiary, as the case may be) receives consideration at , is unconditionally released by the time holder of the Asset Sale at least equal to the fair market value of the assets or Equity Interests issued or sold or otherwise disposed of;
such Indebtedness, (2B) the fair market value is determined by the Company's Board amount of Directors and evidenced by a resolution of the Board of Directors set forth in an Officers' Certificate delivered to the Trustee; and
(3) at least 75% of the consideration any obligations received in the Asset Sale from such transferee that are within 30 days converted by the Company or such Restricted Subsidiary is in to cash (to the form of cash. For purposes of this provision, each extent of the following will be deemed to be cash:
cash actually so received), and (aC) the Fair Market Value of any liabilities, as shown on the Company's or such Restricted Subsidiary's most recent balance sheet, of assets (other than securities) received by the Company or any Restricted Subsidiary to be used by it in the Permitted Business. If at any time any non-cash consideration received by the Company or any Restricted Subsidiary of the Company, as the case may be, in connection with any Asset Sale is repaid or converted into or sold or otherwise disposed of for cash (other than contingent liabilities interest received with respect to any such non-cash consideration), then the date of such repayment, conversion or disposition shall be deemed to constitute the date of an Asset Sale hereunder and liabilities that are by their terms subordinated to the Notes Net Available Proceeds thereof shall be applied in accordance with this Section 4.10. If the Company or any Restricted Subsidiary Guarantee) that are assumed by the transferee of any such assets pursuant to a customary novation agreement that releases engages in an Asset Sale, the Company or such Restricted Subsidiary from further liability;shall, no later than 360 days following the consummation thereof, apply all or any of the Net Available Proceeds therefrom to:
(b1) make payments under the New Credit Agreement; provided, however, that such payments result in a permanent reduction in commitments thereunder; (2) repay 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 such Restricted Subsidiary into cash, to the extent of the cash received in that conversion; and
(c) any payment of Senior Debt Indebtedness which was secured by the assets sold in the such Asset Sale. Within 365 days after the receipt of any Net Proceeds from an Asset Sale, the Company may apply those Net Proceeds at its option:
(1) to repay Senior Debt and, if the Senior Debt repaid is revolving credit Indebtedness, to correspondingly reduce commitments with respect thereto;
(2) to acquire all or substantially all of the assets of, or a majority of the Voting Stock of, another Permitted Business;
; and/or (3) invest all or any part of the Net Available Proceeds thereof in the purchase of assets to make capital expenditures;
(4) to acquire other long-term assets that are be used by the Company or useful any Restricted Subsidiary in the Permitted Business or the purchase of an entity engaged in a Permitted Business; orBusiness that becomes a Restricted Subsidiary.
(5b) for any combination The amount of clauses (1) through (4) above. Pending the final application of any Net Proceeds, the Company may temporarily reduce revolving credit borrowings or otherwise invest the Net Available Proceeds in any manner that is not prohibited by this Indenture. Any Net Proceeds from Asset Sales that are not applied or invested as provided in the preceding paragraph Section 4.10(a) will constitute "Excess Proceeds." When the aggregate amount of Excess Proceeds equals or exceeds $5.0 million within five business days thereof10.0 million, the Company will shall be required to make an offer to purchase from all Holders and, if applicable, redeem (or make an offer to do so) any Pari Passu Indebtedness of the Company the provisions of which require the Company to redeem such Indebtedness with the proceeds from any Asset Sale Offer Sales (or offer to do so), in an aggregate principal amount of Notes and such Pari Passu Indebtedness equal to the amount of such Excess Proceeds as follows:
(i) the Company shall (A) make an offer to purchase (a "Net Proceeds Offer") to all Holders of Notes and all holders of other Indebtedness that is pari passu in accordance with the Notes containing provisions similar to those procedures set forth in this Indenture with respect Agreement, and (B) redeem (or make an offer to offers do so) any such other Pari Passu Indebtedness, pro rata in proportion to purchase or redeem with the proceeds respective principal amounts of sales of assets in accordance with Section 3.09 hereof the Notes and such other Indebtedness required to purchase be redeemed, the maximum principal amount of Notes and such other pari passu Pari Passu Indebtedness that may be purchased redeemed out of the amount (the "Payment Amount") of such Excess Proceeds. The ;
(ii) the offer price for the Notes shall be payable in any Asset Sale Offer will be cash in an amount equal to 100% of the principal amount of the Notes tendered pursuant to a Net Proceeds Offer, plus accrued and unpaid interest and Additional Interestthereon, if any, to the date of purchasesuch Net Proceeds Offer is consummated (the "Offered Price"), in accordance with the procedures set forth in this Agreement and will the redemption price for such Pari Passu Indebtedness (the "Pari Passu Indebtedness Price") shall be payable as set forth in cash. If any Excess Proceeds remain after consummation of an Asset Sale Offer, the Company may use those Excess Proceeds for any purpose not otherwise prohibited by this Indenture. If related documentation governing such Indebtedness;
(iii) if the aggregate principal amount Offered Price of Notes validly tendered and other pari passu Indebtedness tendered into such Asset Sale Offer not withdrawn by Holders thereof exceeds the amount pro rata portion of Excess Proceedsthe Payment Amount allocable to the Notes, the Trustee shall select the Notes and such other pari passu Indebtedness to be purchased will be selected on a pro rata basis based on the principal amount of Notes and such other pari passu Indebtedness tendered. Upon basis; and
(iv) upon completion of each Asset Sale Offersuch Net Proceeds Offer in accordance with the foregoing provisions, the amount of Excess Proceeds will with respect to which such Net Proceeds Offer was made shall be reset at deemed to be zero.
(c) To the extent that the sum of the aggregate Offered Price of Notes tendered pursuant to a Net Proceeds Offer and the aggregate Pari Passu Indebtedness Price paid to the holders of such Pari Passu Indebtedness is less than the Payment Amount relating thereto (such shortfall constituting a "Net Proceeds Deficiency"), the Company may use the Net Proceeds Deficiency, or a portion thereof, for general corporate purposes or any other purpose permitted under this Agreement. The Company shall comply with applicable tender offer rules, including the requirements of Rule 14e-1 under the Exchange Act and any other securities applicable laws and regulations thereunder to the extent those laws and regulations are applicable in connection with each repurchase the purchase of Notes pursuant to an Asset Sale a Net Proceeds Offer. To the extent that the provisions of any securities laws or regulations conflict with the provisions of Section 3.09 or 4.10 of this Indenturehereof, the Company shall comply with the applicable securities laws and regulations and shall will not be deemed to have breached its obligations under those provisions of this Indenture Section 4.10 hereof by virtue of such conflictcompliance.
Appears in 1 contract
Sources: Indenture (Epmr Corp)
Asset Sales. The Company shall not, and 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 (evidenced by a resolution of the Board of Directors of the Company set forth in an officer's certificate delivered to the Trustee) of the assets or Equity Interests issued or sold or otherwise disposed of;
of and (2) 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; and
(3b) at least 7575 % of the consideration therefor received in the Asset Sale by the Company or such Restricted Subsidiary is in the form of cash. For purposes cash or Cash Equivalents; provided, however, that the amount of this provision, each of the following will be deemed to be cash:
(ai) any liabilities, liabilities (as shown on the Company's or such Restricted Subsidiary's most recent balance sheet, ) of the Company or any such Restricted Subsidiary (other than contingent liabilities and liabilities that are by their terms subordinated to the Notes or any Subsidiary Guaranteeguarantee thereof) that are assumed by the transferee of any such assets pursuant to a customary novation agreement that releases the Company or 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 converted within 30 days by the Company or such Restricted Subsidiary within 60 days of receipt into cash, cash or Cash Equivalents (to the extent of the cash received in that conversion; and
(cor Cash Equivalents received) any payment shall be deemed to be cash or Cash Equivalents for purposes of Senior Debt secured by the assets sold in the Asset Salethis provision. Within 365 90 days after the receipt of any Net Proceeds from an Asset Sale, the Company may or any such Restricted Subsidiary shall apply those such Net Proceeds at its option:
(1i) to repay Senior Debt reduce Indebtedness under Permitted Working Capital Indebtedness or any other Indebtedness of a Restricted Subsidiary of the Company (and, if in the Senior Debt repaid is revolving credit case of such Indebtedness other than Indebtedness under Permitted Working Capital Indebtedness, to correspondingly reduce commitments with respect thereto;
) (2an "Indebtedness Reduction") or (ii) to acquire all purchase Notes in the open market or substantially all in negotiated transactions ("Open Market Purchases"). To the extent that 50% of the assets ofexcess, or a majority if any, of the Voting Stock ofNet Proceeds from such Asset Sale over any Indebtedness Reduction made with such Net Proceeds are not utilized within 90 days after receipt of such Net Proceeds to purchase Notes in Open Market Purchases (such proceeds not so utilized being referred to herein as the "Shortfall Proceeds") then, another Permitted Business;
within 30 days thereafter, the Company shall commence a pro rata Asset Sale Offer pursuant to Section 3.09 hereof to purchase the maximum amount of Notes that can be purchased with such Shortfall Proceeds at a price equal to (3x) 85% of the principal amount thereof plus accrued and unpaid interest, if any, thereon, if such Asset Sale occurred prior to make capital expenditures;
April 1, 2001 or (4y) 95% of the principal amount thereof plus accrued and unpaid interest, if any, thereon, if such Asset Sale occurred on or after April 1, 2001. To the extent such Net Proceeds are not utilized as contemplated in the preceding sentences, such Net Proceeds may, within 360 days after receipt thereof, be utilized to acquire other long-term assets that are used Replacement Assets or useful in a Permitted Business; or
(5) for any combination of clauses (1) through (4) aboveIndebtedness Reductions. Pending the final application of any such Net Proceeds, the Company or any such Restricted Subsidiary may temporarily reduce revolving credit borrowings or otherwise invest the such Net Proceeds in any manner that is not prohibited by this Indenture. Any Net Proceeds from Asset Sales that are not applied or invested as provided in the preceding this paragraph will be deemed after the expiration of the time periods set forth above to constitute "Excess Proceeds." When Within 30 days of each date on which the aggregate amount of Excess Proceeds exceeds $5.0 million within five business days thereof35.0 million, the Company will make an shall commence a pro rata Asset Sale Offer pursuant to all Holders of Notes and all holders of other Indebtedness that is pari passu with the Notes containing provisions similar to those set forth in this Indenture with respect to offers to purchase or redeem with the proceeds of sales of assets in accordance with Section 3.09 hereof to purchase the maximum principal amount of Notes and such other pari passu Indebtedness that may be purchased out of the Excess Proceeds. The Proceeds at an offer price in any Asset Sale Offer will be cash in an amount equal to 100% of the principal amount thereof plus accrued and unpaid interest and Additional InterestLiquidated Damages, if any, thereon to the date of purchase, and will be payable purchase in cashaccordance with the procedures set forth in Section 3.09 hereof. If any Excess Proceeds remain after consummation To the extent that the aggregate amount of Notes tendered pursuant to an Asset Sale OfferOffer is less than the amount that the Company is required to repurchase, the Company may use those any remaining Excess Proceeds for any purpose not otherwise prohibited by this Indenturegeneral corporate purposes. If the aggregate principal amount of Notes and other pari passu Indebtedness tendered into such Asset Sale Offer surrendered by Holders thereof exceeds the amount of Excess Proceedsthat the Company is required to repurchase, the Trustee shall select the Notes and such other pari passu Indebtedness to be purchased on a pro rata basis based on (with such adjustments as may be deemed appropriate by the principal amount Trustee so that only Notes in denominations of Notes and such other pari passu Indebtedness tendered$1,000, or integral multiples thereof, shall be purchased). Upon completion of each Asset Sale Offersuch offer to purchase, the amount of Excess Proceeds will shall be reset at zero. The Company shall comply with the requirements of Rule 14e-1 under the Exchange Act and any other securities laws and regulations thereunder to the extent 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 4.10 of this Indenture, the Company shall comply with the applicable securities laws and regulations and shall not be deemed to have breached its obligations under those provisions of this Indenture by virtue of such conflict.
Appears in 1 contract
Asset Sales. The Company shall not, and 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 (as determined in accordance with the definition of such term, the results of which determination shall be set forth in an Officers’ Certificate delivered to the Trustee) of the assets or Equity Interests issued or sold or otherwise disposed of;
of and (2) 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; and
(3b) at least 75% of the consideration therefor received in the Asset Sale by the Company or such Restricted Subsidiary is in the form of cash. For purposes cash or Cash Equivalents, provided, however, that the amount of this provision, each of the following will be deemed to be cash:
(ai) any liabilities, liabilities (as shown on the Company's ’s or such Restricted Subsidiary's ’s most recent balance sheet, ) of the Company or any such Restricted Subsidiary (other than contingent liabilities and liabilities that are by their terms subordinated to the Notes or any Subsidiary Guaranteeguarantee thereof) that are assumed by the transferee of any such assets pursuant to a customary novation agreement that releases the Company or 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 30 180 days by the Company or such Restricted Subsidiary into cash, cash (to the extent of the cash received in that conversion; and
) and (ciii) any payment of Senior Debt secured Designated Non-Cash Consideration received by the assets sold Company or any Restricted Subsidiary in such Asset Sale having an aggregate fair market value (determined in accordance with the Asset Saledefinition of such term under Section 1.01, the results of which determination shall be set forth in an Officers’ Certificate delivered to the Trustee) taken together with all other Designated Non-Cash Consideration received pursuant to this covenant that is at that time outstanding, not to exceed the greater of €100,000,000 and 2% of the Company’s Consolidated Total Assets (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 any such Restricted Subsidiary may apply those such Net Proceeds at its option:
to (1a) to permanently repay Senior Debt and, if the Senior Debt repaid is revolving credit Indebtedness, to correspondingly reduce commitments with respect thereto;
(2) to acquire all or substantially all principal of any Indebtedness of the Company ranking in right of payment at least pari passu with the Notes or any Indebtedness of such 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), (b) make capital expenditures in respect of Strategic Assets, or (c) acquire (including by way of a purchase of assets of, or a majority of the Voting Stock ofof a Person, another Permitted Business;
(3by merger, by consolidation or otherwise) to make capital expenditures;
(4) Strategic Assets, provided that if the Company or such Restricted Subsidiary enters into a binding agreement to acquire other longsuch Strategic Assets within such 365-term assets that are used 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 useful 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 a Permitted Business; or
(5) for any combination of clauses (1a) through (4c) aboveof this paragraph. Pending the final application of any such Net Proceeds, the Company or any such Restricted Subsidiary may temporarily reduce outstanding revolving credit borrowings, including borrowings under the Credit Facilities, or otherwise invest the such Net Proceeds in any manner that is not prohibited by this Indenture. Any Net Proceeds from Asset Sales that are not applied or invested as provided in the preceding clauses (a) through (c) of this paragraph will shall be deemed to constitute "“Excess Proceeds." When ” Within 30 days of each date on which the aggregate amount of Excess Proceeds exceeds $5.0 million within five business days thereof€20,000,000, the Company will make shall commence an Asset Sale Offer pursuant to all Holders of Notes and all holders of other Indebtedness that is pari passu with the Notes containing provisions similar to those set forth in this Indenture with respect to offers to purchase or redeem with the proceeds of sales of assets in accordance with Section 3.09 hereof to purchase the maximum principal amount of Notes that may be purchased out of 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 Section 3.09 hereof; provided, however, that, if the Company is required to apply such other pari passu Indebtedness 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 ProceedsProceeds 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. The offer price in any To the extent that the aggregate principal amount of Notes tendered pursuant to an Asset Sale Offer will be equal is less than the amount that the Company is required to 100% of principal amount plus accrued and unpaid interest and Additional Interest, if any, to the date of purchase, and will be payable in cash. If any Excess Proceeds remain after consummation of an Asset Sale Offer, the Company may use those any remaining Excess Proceeds for general corporate purposes in any purpose manner not otherwise prohibited by this Indenture. If the aggregate principal amount of Notes and other pari passu Indebtedness tendered into such Asset Sale Offer surrendered by holders thereof exceeds the amount of Excess Proceedsthat the Company is required to purchase, the Trustee shall select the Notes and such other pari passu Indebtedness to be purchased on a pro rata basis based on (with such adjustments as may be deemed appropriate by the principal amount Trustee so that only Notes in denominations of Notes and such other pari passu Indebtedness tendered$200,000, or integral multiples of $1,000 in excess thereof, shall be purchased). Upon completion of each Asset Sale Offersuch offer to purchase, the amount of Excess Proceeds will shall be reset at zero. The Company shall not, and shall not permit any Restricted Subsidiary to, enter into or suffer to exist any agreement (other than 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 those such laws and regulations are applicable in connection with each repurchase the purchase of Notes pursuant to 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 Section 3.09 or 4.10 of this Indenturerelating to the Asset Sale Offer, the Company shall comply with the applicable securities laws and regulations and shall not be deemed to have breached its obligations under those provisions of this Indenture described above by virtue of such conflictthereof.
Appears in 1 contract
Sources: Indenture (CGG Holding B.V.)
Asset Sales. The Company shall not, and shall not permit any of its Restricted Subsidiaries to, consummate an Asset Sale unless:
unless (1i) the Company (or the applicable Restricted Subsidiary, as the case may be) , receives consideration at the time of the such Asset Sale at least equal to the fair market value of the assets or Equity Interests issued or sold or otherwise disposed of;
of (2) the fair market value is as determined in good faith 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
Directors), (3ii) at least 75% of the consideration received in the Asset Sale by the Company or the Restricted Subsidiary, as the case may be, from such Restricted Subsidiary is in Asset Sale shall be cash or Cash Equivalents; provided that the form amount of cash. For purposes of this provision, each of the following will be deemed to be cash:
(a) any liabilities, liabilities (as shown on the Company's or such Restricted Subsidiary's most recent balance sheet, ) of the Company or any such Restricted Subsidiary (other than contingent liabilities and liabilities that are by their terms subordinated to the Notes or any Subsidiary GuaranteeNotes) that are assumed by the transferee of any such assets pursuant to a customary novation agreement that releases the Company or such Restricted Subsidiary from further liability;
assets, (b) any securities, notes or other obligations received by the Company or any such Restricted Subsidiary from such transferee that are immediately converted within 30 days by the Company or such Restricted Subsidiary into cash, cash (to the extent of the cash received in that conversion; and
received) and (c) any payment of Senior Debt secured Designated Noncash Consideration received by the assets sold Company or 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 (c) that is at that time outstanding, not to exceed 10% of Total Assets at the Asset Sale. Within 365 days after time of the receipt of any Net Proceeds from such Designated Noncash Consideration (with the fair market value of each item of Designated Noncash Consideration being measured at the time received and without giving effect to subsequent changes in value), shall be deemed to be cash for the purposes of this provision, and (iii) upon the consummation of an Asset Sale, the Company may apply those shall apply, or cause such Restricted Subsidiary to apply, the Net Cash Proceeds at its option:
relating to such Asset Sale within 365 days of receipt thereof either (1A) to repay any Senior Debt and, if in the case of any Senior Debt repaid is under any revolving credit Indebtednessfacility, to correspondingly reduce commitments with respect thereto;
effect a commitment reduction under such revolving credit facility, (2B) to acquire all or substantially all of the assets ofreinvest in Productive Assets, or (C) a majority of the Voting Stock of, another Permitted Business;
(3) to make capital expenditures;
(4) to acquire other long-term assets that are used or useful in a Permitted Business; or
(5) for any combination of prepayment, repurchase and investment permitted by the foregoing clauses (1iii)(A) through and (4) aboveiii)(B). Pending the final application of any such Net Cash Proceeds, the Company or such Restricted Subsidiary may temporarily reduce Indebtedness under a revolving credit borrowings facility, if any, or otherwise invest such Net Cash Proceeds in Cash Equivalents. On the 366th day after an Asset Sale or such earlier date, if any, as the Board of Directors of the Company or of such Restricted Subsidiary determines not to apply the Net Cash Proceeds relating to such Asset Sale as set forth in any manner that is not prohibited by this Indenture. Any clauses (iii)(A), (iii)(B) or (iii)(C) of the next preceding sentence (each, a "Net Proceeds from Asset Sales that are not applied or invested as provided in the preceding paragraph will constitute Offer Trigger Date"Excess Proceeds." When ), the aggregate amount of Excess Net Cash Proceeds exceeds $5.0 million within five business days thereofthat have not been applied on or before such Net Proceeds Offer Trigger Date as permitted in clauses (iii)(A), (iii)(B) and (iii)(C) of the next preceding sentence (each a "Net Proceeds Offer Amount") shall be applied by the Company will or such Restricted Subsidiary to make an Asset Sale offer to purchase (the "Net Proceeds Offer") on a date (the "Net Proceeds Offer to Payment Date") not less than 30 nor more than 45 days following the applicable Net Proceeds Offer Trigger Date, from all Holders of Notes and all holders of other Indebtedness on a pro rata basis that is pari passu with the Notes containing provisions similar to those set forth in this Indenture with respect to offers to purchase or redeem with the proceeds of sales of assets in accordance with Section 3.09 hereof to purchase the maximum principal amount of Notes and such other pari passu Indebtedness that may be purchased out of equal to the Excess Proceeds. The offer Net Proceeds Offer Amount at a price in any Asset Sale Offer will be equal to 100% of the principal amount of the Notes to be purchased, plus accrued and unpaid interest and Additional InterestLiquidated Damages thereon, if any, to the date of purchase; provided, and will however, that if at any time any non-cash consideration (including any Designated Noncash Consideration) received by the Company or any Restricted Subsidiary of the Company, as the case may be, in connection with any Asset Sale is converted into or sold or otherwise disposed of for cash (other than interest received with respect to any such non-cash consideration), then such conversion or disposition shall be payable in cash. If any Excess Proceeds remain after consummation of deemed to constitute an Asset Sale Offerhereunder and the Net Cash Proceeds thereof shall be applied in accordance with this covenant. Notwithstanding the foregoing, if a Net Proceeds Offer Amount is less than $10.0 million, the application of the Net Cash Proceeds constituting such Net Proceeds Offer Amount to a Net Proceeds Offer may be deferred until such time as such Net Proceeds Offer Amount plus the aggregate amount of all Net Proceeds Offer Amounts arising subsequent to the Net Proceeds Offer Trigger Date relating to such initial Net Proceeds Offer Amount from all Asset Sales by the Company and its Restricted Subsidiaries aggregates at least $10.0 million, at which time the Company or such Restricted Subsidiary shall apply all Net Cash Proceeds constituting all Net Proceeds Offer Amounts that have been so deferred to make a Net Proceeds Offer (the first date the aggregate of all such deferred Net Proceeds Offer Amounts is equal to $10.0 million or more shall be deemed to be a "Net Proceeds Offer Trigger Date"). Notwithstanding the two immediately preceding paragraphs, the Company may use those Excess Proceeds and its Restricted Subsidiaries will be permitted to consummate an Asset Sale without complying with such paragraphs to the extent (i) at least 75% of the consideration for any purpose not otherwise prohibited by this Indenture. If the aggregate principal amount of Notes and other pari passu Indebtedness tendered into such Asset Sale Offer exceeds the amount of Excess Proceedsconstitutes Productive Assets, the Trustee shall select the Notes cash, Cash Equivalents and/or Marketable Securities and (ii) such other pari passu Indebtedness to be purchased on a pro rata basis based on the principal amount of Notes and such other pari passu Indebtedness tendered. Upon completion of each Asset Sale Offer, is for fair market value (as determined in good faith by the amount Company's Board of Excess Proceeds will be reset at zero. The Directors); provided that any consideration not constituting Productive Assets received by the Company shall comply with the requirements or any of Rule 14e-1 under the Exchange Act and any other securities laws and regulations thereunder to the extent those laws and regulations are applicable its Restricted Subsidiaries in connection with each repurchase of Notes pursuant to an any Asset Sale Offerpermitted to be consummated under this paragraph shall be subject to the provisions of the two preceding paragraphs. To the extent that the provisions of any securities laws or regulations conflict with the Asset Sale provisions of Section 3.09 or 4.10 of this Indenture, the Company shall comply with the applicable securities laws and regulations and shall not be deemed to have breached its obligations under those the Asset Sale provisions of this Indenture by virtue of such conflictthereof.
Appears in 1 contract
Sources: Indenture (Sealy Corp)
Asset Sales. The Company shall not, and 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 (as determined in accordance with the definition of such term, the results of which determination shall be set forth in an Officers’ Certificate delivered to the Trustee) of the assets or Equity Interests issued or sold or otherwise disposed of;
of and (2) 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; and
(3b) at least 75% of the consideration therefor received in the Asset Sale by the Company or such Restricted Subsidiary is in the form of cash. For purposes cash or Cash Equivalents, provided, however, that the amount of this provision, each of the following will be deemed to be cash:
(ai) any liabilities, liabilities (as shown on the Company's ’s or such Restricted Subsidiary's ’s most recent balance sheet, ) of the Company or any such Restricted Subsidiary (other than contingent liabilities and liabilities that are by their terms subordinated to the Notes or any Subsidiary Guaranteeguarantee thereof) that are assumed by the transferee of any such assets pursuant to a customary novation agreement that releases the Company or 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 30 180 days by the Company or such Restricted Subsidiary into cash, cash (to the extent of the cash received in that conversion; and
) and (ciii) any payment of Senior Debt secured Designated Non-Cash Consideration received by the assets sold Company or any Restricted Subsidiary in such Asset Sale having an aggregate fair market value (determined in accordance with the Asset Saledefinition of such term under Section 1.01, the results of which determination shall be set forth in an Officers’ Certificate delivered to the Trustee) taken together with all other Designated Non-Cash Consideration received pursuant to this covenant that is at that time outstanding, not to exceed the greater of €100,000,000 and 2% of the Company’s Consolidated Total Assets (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 any such Restricted Subsidiary may apply those such Net Proceeds at its option:
to (1a) to permanently repay Senior Debt and, if the Senior Debt repaid is revolving credit Indebtedness, to correspondingly reduce commitments with respect thereto;
(2) to acquire all or substantially all principal of any Indebtedness of the Company ranking in right of payment at least pari passu with the Notes or any Indebtedness of such 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), (b) make capital expenditures in respect of Strategic Assets, or (c) acquire (including by way of a purchase of assets of, or a majority of the Voting Stock ofof a Person, another Permitted Business;
(3by merger, by consolidation or otherwise) to make capital expenditures;
(4) Strategic Assets, provided that if the Company or such Restricted Subsidiary enters into a binding agreement to acquire other longsuch Strategic Assets within such 365-term assets that are used 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 useful 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 a Permitted Business; or
(5) for any combination of clauses (1a) through (4c) aboveof this paragraph. Pending the final application of any such Net Proceeds, the Company or any such Restricted Subsidiary may temporarily reduce outstanding revolving credit borrowings, including borrowings under the Credit Facilities, or otherwise invest the such Net Proceeds in any manner that is not prohibited by this Indenture. Any Net Proceeds from Asset Sales that are not applied or invested as provided in the preceding clauses (a) through (c) of this paragraph will shall be deemed to constitute "“Excess Proceeds." When ” Within 30 days of each date on which the aggregate amount of Excess Proceeds exceeds $5.0 million within five business days thereof€20,000,000, the Company will make shall commence an Asset Sale Offer pursuant to all Holders of Notes and all holders of other Indebtedness that is pari passu with the Notes containing provisions similar to those set forth in this Indenture with respect to offers to purchase or redeem with the proceeds of sales of assets in accordance with Section 3.09 hereof to purchase the maximum principal amount of Notes that may be purchased out of 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 Section 3.09 hereof; provided, however, that, if the Company is required to apply such other pari passu Indebtedness 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 ProceedsProceeds 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. The offer price in any To the extent that the aggregate principal amount of Notes tendered pursuant to an Asset Sale Offer will be equal is less than the amount that the Company is required to 100% of principal amount plus accrued and unpaid interest and Additional Interest, if any, to the date of purchase, and will be payable in cash. If any Excess Proceeds remain after consummation of an Asset Sale Offer, the Company may use those any remaining Excess Proceeds for general corporate purposes in any purpose manner not otherwise prohibited by this Indenture. If the aggregate principal amount of Notes and other pari passu Indebtedness tendered into such Asset Sale Offer surrendered by holders thereof exceeds the amount of Excess Proceedsthat the Company is required to purchase, the Trustee shall select the Notes and such other pari passu Indebtedness to be purchased on a pro rata basis based on (with such adjustments as may be deemed appropriate by the principal amount Trustee so that only Notes in denominations of Notes and such other pari passu Indebtedness tendered€100,000, or integral multiples of €1,000 in excess thereof, shall be purchased). Upon completion of each Asset Sale Offersuch offer to purchase, the amount of Excess Proceeds will shall be reset at zero. The Company shall not, and shall not permit any Restricted Subsidiary to, enter into or suffer to exist any agreement (other than 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 those such laws and regulations are applicable in connection with each repurchase the purchase of Notes pursuant to 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 Section 3.09 or 4.10 of this Indenturerelating to the Asset Sale Offer, the Company shall comply with the applicable securities laws and regulations and shall not be deemed to have breached its obligations under those provisions of this Indenture described above by virtue of such conflictthereof.
Appears in 1 contract
Sources: Indenture (CGG)
Asset Sales. The Parent Company shall not, and shall not permit any of its Restricted Subsidiaries to, consummate an Asset Sale unless:
(1a) the Parent 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 (as determined in good faith by the Company) 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 set forth in an Officers' Certificate delivered to the Trustee; and
(3b) at least 75% of the consideration Net Proceeds received in the Asset Sale by the Parent Company or such Restricted Subsidiary is in the form of cashcash or Cash Equivalents. For purposes of this provision, each of the following will shall be deemed to be cash:
(ai) any liabilities, liabilities (as shown on the Parent Company's ’s or such Restricted Subsidiary's ’s most recent balance sheet), of the Parent Company or any Restricted Subsidiary (other than contingent liabilities and liabilities that are by their terms subordinated to the Notes or any Subsidiary Note Guarantee) that are assumed by the transferee of any such assets pursuant to a customary novation agreement that releases the Parent Company or such Restricted Subsidiary from further liability;
(bii) any securities, notes or other obligations received by the Parent Company or any such Restricted Subsidiary from such transferee that are converted within 30 days by the Parent Company or such Restricted Subsidiary into cash, cash (to the extent of the cash received in that conversion) within 180 days following the closing of such Asset Sale; and
(ciii) any payment of Senior Debt secured Designated Noncash Consideration received by the Parent Company or any of its Restricted Subsidiaries in such Asset Sale having an aggregate fair market value (as determined in good faith by the Board of Directors of the Parent Company), taken together with all other Designated Noncash Consideration received pursuant to this clause (iii) that is at that time outstanding, not to exceed the greater of (A) $75 million and (B) five percent (5%) of the total assets sold of the Parent Company and its Restricted Subsidiaries on a consolidated basis, as shown on the most recent balance sheet of the Parent Company and determined in accordance with GAAP (with the Asset Salefair market value of each item of Designated Noncash Consideration being measured at the time received without giving effect to subsequent changes in value), shall be deemed to be cash for purposes of this paragraph and for no other purpose. Within 365 360 days after the receipt of any Net Proceeds from an Asset Sale, the Parent Company may or a Restricted Subsidiary must apply those such Net Proceeds at its optionProceeds:
(1a) to be reinvested in the business of the Parent Company or a Restricted Subsidiary; provided that if the Parent Company or a Restricted Subsidiary enters into a binding agreement to acquire new or replacement assets within such 360 day period, such Net Proceeds shall be deemed to have been applied pursuant to this clause (a) so long as such Net Proceeds are applied to acquire such assets within 180 days following such 360th day;
(b) to repay Senior Debt andor retire (i) any Indebtedness of the Company secured by a Lien or any Indebtedness of a Wholly Owned Restricted Subsidiary of the Parent Company that is not a Subsidiary Guarantor (other than the Company); provided that such repayment or retirement permanently retires or reduces the related loan commitment; (ii) the Existing Unsecured Notes or (iii) Pari Passu Indebtedness; provided that to the extent the Parent Company or a Restricted Subsidiary repays or retires Pari Passu Indebtedness pursuant to this clause (iii), the Parent Company or such Restricted Subsidiary shall equally and ratably reduce the Notes Obligations as provided under 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 to purchase the Notes at 100% of principal amount, plus accrued and unpaid interest, if the Senior Debt repaid is revolving credit Indebtedness, to correspondingly reduce commitments with respect thereto;
(2) to acquire all or substantially all of the assets of, or a majority of the Voting Stock of, another Permitted Business;
(3) to make capital expenditures;
(4) to acquire other long-term assets that are used or useful in a Permitted Businessany; or
(5c) to make an offer to purchase the Notes at 100% of principal amount, plus accrued and unpaid interest, if any. Any Net Proceeds that remain following compliance by the Company with its obligations set forth in the second paragraph of this Section 4.07 may be used for any combination of clauses (1) through (4) abovepurpose not otherwise prohibited by this Indenture. Pending the final application of any Net Proceeds, the Company may temporarily reduce revolving credit borrowings or otherwise invest the Net Proceeds in any manner that is not prohibited by this Indenture. Any Net Proceeds from Asset Sales that are not applied or invested as provided in the preceding paragraph will constitute "Excess Proceedsborrowings." When the aggregate amount of Excess Proceeds exceeds $5.0 million within five business days thereof, the Company will make an Asset Sale Offer to all Holders of Notes and all holders of other Indebtedness that is pari passu with the Notes containing provisions similar to those set forth in this Indenture with respect to offers to purchase or redeem with the proceeds of sales of assets in accordance with Section 3.09 hereof to purchase the maximum principal amount of Notes and such other pari passu Indebtedness that may be purchased out of the Excess Proceeds. The offer price in any Asset Sale Offer will be equal to 100% of principal amount plus accrued and unpaid interest and Additional Interest, if any, to the date of purchase, and will be payable in cash. If any Excess Proceeds remain after consummation of an Asset Sale Offer, the Company may use those Excess Proceeds for any purpose not otherwise prohibited by this Indenture. If the aggregate principal amount of Notes and other pari passu Indebtedness tendered into such Asset Sale Offer exceeds the amount of Excess Proceeds, the Trustee shall select the Notes and such other pari passu Indebtedness to be purchased on a pro rata basis based on the principal amount of Notes and such other pari passu Indebtedness tendered. Upon completion of each Asset Sale Offer, the amount of Excess Proceeds will be reset at zero. The Company shall comply with the requirements of Rule 14e-1 under the Exchange Act and any other securities laws and regulations thereunder to the extent 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 4.10 of this Indenture, the Company shall comply with the applicable securities laws and regulations and shall not be deemed to have breached its obligations under those provisions of this Indenture by virtue of such conflict.
Appears in 1 contract
Sources: Indenture (Cenveo, Inc)
Asset Sales. The Company shall not, and shall not permit any of its Restricted Subsidiaries to, consummate an Asset Sale unless:
or issue Equity Interests in any of its Subsidiaries or sell Equity Interests in any of its Subsidiaries, 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 (evidenced by Board Resolution delivered to the Trustee) of the assets or Equity Interests issued or sold or otherwise disposed of;
of and (2) 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; and
(3ii) at least 7580% of the consideration therefor received in the Asset Sale by the Company or such Restricted Subsidiary is in the form of cash. For purposes ; provided that the amount of this provision, each of the following will be deemed to be cash:
(ax) any liabilities, liabilities (as shown on the Company's or such Restricted Subsidiary's most recent balance sheet), of the Company or any Restricted Subsidiary (other than contingent liabilities and liabilities that are by their terms subordinated to the Senior Subordinated Notes or any Subsidiary Guaranteeguarantee thereof) that are assumed by the transferee of any such assets pursuant to a customary novation agreement such that releases the Company or such Restricted Subsidiary from have no 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 within 3 Business Days converted within 30 days by the Company or such Restricted Subsidiary into cash, cash (to the extent of the cash received in that conversion; and
(c) any payment received), shall be deemed to be cash for purposes of Senior Debt secured by the assets sold in the Asset Salethis provision. Within 365 180 days after the receipt of any Net Proceeds from an Asset Sale, the Company may apply those such Net Proceeds Proceeds, at its option:
, (1a) to repay Indebtedness under the Senior Credit Facility or Senior Debt and, if the Senior Debt repaid is revolving credit Indebtedness, (and to correspondingly permanently reduce commitments with respect thereto;
), or (2b) to acquire all the acquisition of a controlling interest in another business, the making of a capital expenditure or substantially all the acquisition of the assets of, or a majority of the Voting Stock of, another Permitted Business;
(3) to make capital expenditures;
(4) to acquire other long-term assets that are used or useful assets, in each case, in a Permitted Business; or
(5) for any combination of clauses (1) through (4) above. Pending the final application of any such Net Proceeds, the Company may temporarily reduce revolving credit borrowings Indebtedness under the Senior Credit Facility or otherwise invest the such Net Proceeds in any manner that is not prohibited by this Indenture. Any Net Proceeds from Asset Sales that are not applied or invested as provided in the preceding first sentence of this paragraph will shall be deemed to constitute "Excess Proceeds." When the aggregate amount of Excess Proceeds exceeds $5.0 million within five business days thereof(an "Excess Proceeds Offer Triggering Event"), the Company will shall be required to make an Asset Sale Exceed Proceeds Offer to all Holders of Senior Subordinated Notes and all holders of other Indebtedness that is pari passu with the Notes containing provisions similar to those set forth in this Indenture with respect to offers to purchase or redeem with the proceeds of sales of assets in accordance with Section 3.09 hereof to purchase the maximum principal amount of Senior Subordinated Notes and such other pari passu Indebtedness that may be purchased out of the Excess Proceeds. The , at an offer price in any Asset Sale Offer will be cash in an amount equal to 100% of the principal amount thereof plus accrued and unpaid interest and Additional InterestLiquidated Damages thereon, if any, to the date of purchase, and will be payable in cashaccordance with the procedures set forth in this Indenture. If any To the extent that the aggregate amount of Senior Subordinated Notes tendered pursuant to an Excess Proceeds remain after consummation of an Asset Sale OfferOffer is less than the Excess Proceeds, the Company may use those any remaining Excess Proceeds for any purpose not otherwise prohibited by this Indenturegeneral corporate purposes. If the aggregate principal amount of Senior Subordinated Notes and other pari passu Indebtedness tendered into such Asset Sale Offer surrendered by Holders thereof exceeds the amount of Excess Proceeds, the Trustee Company shall select the Senior Subordinated Notes and such other pari passu Indebtedness to be purchased on a pro rata basis based on the principal amount of Notes and such other pari passu Indebtedness tenderedpursuant to Section 3.09 hereof. Upon completion of each Asset Sale Offersuch offer to purchase, the amount of Excess Proceeds will shall be reset at zero. The Company shall comply with the requirements of Rule 14e-1 under the Exchange Act and any other securities laws and regulations thereunder to the extent 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 4.10 of this Indenture, the Company shall comply with the applicable securities laws and regulations and shall not be deemed to have breached its obligations under those provisions of this Indenture by virtue of such conflict.
Appears in 1 contract
Sources: Indenture (Key Plastics Inc)
Asset Sales. The Company shall not, and 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 of the assets or Equity Interests issued or sold or otherwise disposed of;
(2) the 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
(3) at least 7580% of the consideration therefor received in the Asset Sale by the Company or such Restricted Subsidiary is in the form of cash. For purposes of this provision, each of the following will shall be deemed to be cash:
(a) any liabilities, liabilities (as shown on the Company's or such Restricted Subsidiary's most recent balance sheet), of the Company or any Restricted Subsidiary (other than contingent liabilities and liabilities that are by their terms subordinated to the Notes or any Subsidiary Guarantee) that are assumed by the transferee of any such assets pursuant to a customary novation agreement that releases the Company or such Restricted Subsidiary from further liability;; and
(b) any securities, notes or other obligations received by the Company or any such Restricted Subsidiary from such transferee that are contemporaneously (subject to ordinary settlement periods) converted within 30 days by the Company or such Restricted Subsidiary into cash, cash (to the extent of the cash received in that conversion; and
(c) any payment of Senior Debt secured by the assets sold in the Asset Sale). Within 365 360 days after the receipt of any Net Proceeds from an Asset Sale, the Company may apply those such Net Proceeds at its option:
(1) to repay Senior Debt and, if the Senior Debt repaid is revolving credit Indebtedness, to correspondingly reduce commitments with respect theretoDebt;
(2) to acquire all or substantially all of the assets of, or a majority of the Voting Stock of, another Permitted BusinessBusiness that is owned by the Company or a Guarantor;
(3) to make a capital expenditures;expenditure; or
(4) to acquire other long-term assets that are used or useful in a Permitted Business; or
(5) for any combination of clauses (1) through (4) aboveBusiness that is owned by the Company or a Guarantor. Pending the final application of any such Net Proceeds, the Company may temporarily reduce revolving credit borrowings or otherwise invest the such Net Proceeds in any manner that is not prohibited by this Indenture. Any Net Proceeds from Asset Sales that are not applied or invested as provided in Notwithstanding the immediately preceding paragraph will constitute "Excess Proceeds." When the aggregate amount of Excess Proceeds exceeds $5.0 million within five business days thereofparagraph, the Company and its Restricted Subsidiaries will make be permitted to consummate an Asset Sale Offer to all Holders of Notes and all holders of other Indebtedness that is pari passu without complying with the Notes containing provisions similar to those set forth in this Indenture with respect to offers to purchase or redeem with the proceeds of sales of assets in accordance with Section 3.09 hereof to purchase the maximum principal amount of Notes and such other pari passu Indebtedness that may be purchased out of the Excess Proceeds. The offer price in any Asset Sale Offer will be equal to 100% of principal amount plus accrued and unpaid interest and Additional Interest, if any, to the date of purchase, and will be payable in cash. If any Excess Proceeds remain after consummation of an Asset Sale Offer, the Company may use those Excess Proceeds for any purpose not otherwise prohibited by this Indenture. If the aggregate principal amount of Notes and other pari passu Indebtedness tendered into such Asset Sale Offer exceeds the amount of Excess Proceeds, the Trustee shall select the Notes and such other pari passu Indebtedness to be purchased on a pro rata basis based on the principal amount of Notes and such other pari passu Indebtedness tendered. Upon completion of each Asset Sale Offer, the amount of Excess Proceeds will be reset at zero. The Company shall comply with the requirements of Rule 14e-1 under the Exchange Act and any other securities laws and regulations thereunder paragraph to the extent those laws and regulations are applicable in connection with each repurchase (i) at least 80% 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 4.10 of this Indenture, the Company shall comply with the applicable securities laws and regulations and shall not be deemed to have breached its obligations under those provisions of this Indenture by virtue of consideration for such conflict.Asse▇
Appears in 1 contract
Sources: Indenture (Emmis 105 5 Fm Radio License Corp of Terre Haute)
Asset Sales. The Company shall will not, and shall 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 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 set forth in an Officers' Certificate delivered to the Trustee; and
(3b) at least 75% of the aggregate consideration received in 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 cashcash or Cash Equivalents. For purposes of this provision, each of the following will be deemed to be cash:
(ai) any liabilities, as shown on the Company's or such Restricted Subsidiary's ’s most recent consolidated balance sheet, of the Company or any of its Restricted Subsidiary Subsidiaries (other than contingent liabilities and liabilities that are by their terms subordinated to the Notes or any Subsidiary 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 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 within 30 days by the Company or such Restricted Subsidiary into cash, to the extent of the cash received in that conversion;
(iv) any Capital Stock or assets of the kind referred to in clause (ii) or (iv) of Section 4.10(c) hereof; and
(v) 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 (v), not to exceed an amount equal to 5.0% of 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) any payment of Senior Debt secured by the assets sold in the Asset Sale. Within 365 days after the receipt of any Net Proceeds from an Asset Sale, the Company or one or more of its Restricted Subsidiaries may apply those an amount equal to the amount of such Net Proceeds at its optionoption to any combination of the following:
(1i) to repay Senior Debt andrepay, if repurchase or redeem any senior Indebtedness of the Senior Debt repaid is revolving credit IndebtednessCompany or any Guarantor, in each case owing to correspondingly reduce commitments with respect theretoa Person other than the Company or any Restricted Subsidiary;
(2ii) to acquire all or substantially all of the assets ofassets, 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 majority Restricted Subsidiary of the Voting Stock of, another Permitted BusinessCompany;
(3iii) to make capital expenditures;expenditures in respect of the Company’s or any of its Restricted Subsidiaries’ Oil and Gas Business; or
(4iv) to acquire other long-term 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 satisfied if a Permitted Business; or
(5) for bona fide binding contract committing to make the acquisition referred to therein is entered into by the Company or any combination of clauses (1) through (4) aboveits Restricted Subsidiaries with a Person other than an Affiliate of the Company within the time period specified in the preceding paragraph and such Net Proceeds are subsequently applied in accordance with such contract within 180 days following the date such agreement is entered into. Pending the final application of any Net Proceeds, the Company or any of its Restricted Subsidiaries may temporarily reduce revolving credit borrowings or otherwise invest the Net Proceeds in any manner that is not prohibited by this Indenture. Any The Net Proceeds from Asset Sales that are not applied or invested as provided in the preceding paragraph Sections 4.10(b) and 4.10(c) hereof will constitute "“Excess Proceeds." ” When the aggregate amount of Excess Proceeds exceeds $5.0 million 35.0 million, within five business days thereof, the Company will make an offer (an “Asset Sale Offer Offer”) to all Holders of Notes and all holders of other Indebtedness that is pari passu with the Notes containing provisions similar to those set forth in this Indenture Section 4.10 with respect to offers to purchase purchase, prepay or redeem such Indebtedness with the proceeds of sales of assets in accordance with Section 3.09 hereof assets, to purchase purchase, prepay or redeem, on a pro rata basis, the maximum principal amount of Notes and such other pari passu Indebtedness (plus all accrued interest on the 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 redeemed out of the Excess Proceeds. The offer price in any Asset Sale Offer will be equal to 100% of the principal amount amount, plus accrued and unpaid interest and Additional Interestinterest, if any, to to, but excluding, the date of purchase, prepayment or redemption, subject to the rights of Holders of Notes on the relevant record date to receive interest due on the relevant interest payment date, and will be payable in cash. If any Excess Proceeds remain after consummation of an Asset Sale Offer, the Company or any of its Restricted Subsidiaries may use those Excess Proceeds for any purpose not otherwise prohibited by this Indenture. If the aggregate principal amount of Notes and other pari passu Indebtedness tendered into in such Asset Sale Offer exceeds the amount of Excess ProceedsProceeds allocated to the purchase of Notes, the Trustee shall will select the Notes and such other pari passu Indebtedness to be purchased on a pro rata basis (except that any Notes represented by a Note in global form will be selected by such method as DTC or its nominee or successor may require or, where such nominee or successor is the Trustee, a method that most nearly approximates pro rata selection as the Trustee deems fair and appropriate unless otherwise required by law), based on the principal amount amounts tendered (with such adjustments as may be deemed appropriate by the Company so that only Notes in denominations of Notes and such other pari passu Indebtedness tendered$2,000, or an integral multiple of $1,000 in excess thereof, will be purchased). Upon completion of each Asset Sale Offer, the amount of Excess Proceeds will be reset at zero. The Company shall will comply with the requirements of Rule 14e-1 under the Exchange Act and any other securities laws and regulations thereunder to the extent those laws and regulations are applicable in connection with each repurchase of Notes pursuant to 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 3.09, Section 4.15 or this Section 4.10 of this Indenturehereof, the Company shall will comply with the applicable securities laws and regulations and shall will not be deemed to have breached its obligations under those provisions of Section 3.09 or Section 4.15 hereof or this Indenture Section 4.10 by virtue of such conflictcompliance.
Appears in 1 contract
Sources: Indenture (Callon Petroleum Co)