Asset Sales. No later than the first business day following the date of receipt, in any given month, by Borrower or any of its Subsidiaries of any Net Asset Sale Proceeds (as hereinafter defined) in excess of the aggregate amount of Budgeted Expenses (as defined in Section 15(e) hereof) as set forth in the most recent Budget (as defined in Section 15(e)) required to be delivered pursuant to Section 15(e) hereof, Borrower shall prepay the Forbearance Period Advances as set forth in Section 3(i) hereof in an aggregate amount equal to such excess amount; provided, that (A) such Net Asset Sale Proceeds shall be deposited directly by the payee thereof into a deposit account held by Borrower at Amegy Bank, N.A. and (B) if, within 30 days of Borrower’s receipt of such Net Asset Sale Proceeds, Borrower has not paid one or more such Budgeted Expenses in an aggregate amount equal to 100% of the amount of such proceeds not otherwise required to prepay the Forbearance Period Advances, then Borrower shall prepay the Forbearance Period Advances as set forth in Section 3(i) hereof in an amount equal to the amount not so paid. “Net Asset Sale Proceeds” means, with respect to any Asset Sale (as hereinafter defined), an amount equal to: (1) cash payments received by Borrower or any of its Subsidiaries from such Asset Sale, minus (2) any bona fide direct costs and expenses incurred in connection with such Asset Sale to the extent paid or payable to non-Affiliates, including (x) income or gains taxes payable or reasonably estimated to be payable by the seller as a result of any gain recognized in connection with such Asset Sale during the tax period the sale occurs, (y) payment of the obligations (other than the Loans) secured by a Lien on the assets in question, which is required to be repaid under the terms thereof as a result of such Asset Sale, and (z) a reasonable reserve for any adjustments in respect to sale price of such assets and any indemnification payments (fixed or contingent) attributable to seller’s indemnities and representations and warranties to purchaser in respect of such Asset Sale undertaken by Borrower or any of its Subsidiaries in connection with such Asset Sale; provided that upon release of any such reserve, the amount released shall be considered Net Asset Sale Proceeds). “Asset Sale” means a sale, lease or sublease (as lessor or sublessor), sale and leaseback, assignment, conveyance, transfer, license or other disposition to, or any exchange of property with, any Person (other than to or with a Credit Party), in one transaction or a series of transactions, of all or any part of any Credit Party’s businesses, assets or properties of any kind, whether real, personal, or mixed and whether tangible or intangible, whether now owned or hereafter acquired, leased or licensed, including, without limitation, the capital stock of any Credit Party, other than inventory or other assets sold or leased, or cash or cash equivalents disposed of, in each case, in the ordinary course of business. For purposes of clarification, “Asset Sale” shall (i) include (x) the sale or other disposition for value of any contracts or (y) the early termination or modification of any contract resulting in the receipt by any Credit Party of a cash payment or other consideration in exchange for such event (other than payments in the ordinary course of business for accrued and unpaid amounts due through the date of termination or modification) and (ii) exclude any taking or other disposition by means of power of eminent domain, condemnation or similar power, threat or right.
Appears in 2 contracts
Sources: Forbearance Agreement (Infinity Energy Resources, Inc), Fifth Forbearance Agreement (Infinity Energy Resources, Inc)
Asset Sales. No later (a) The Company shall not, and shall not permit any of its Restricted Subsidiaries to cause or make an Asset Sale, unless (x) the 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, is in the form of Cash Equivalents; provided that the amount of the following shall be deemed to be Cash Equivalents for the purposes of this provision:
(i) any liabilities (as shown on the Company’s or such Restricted Subsidiary’s most recent balance sheet or in the notes thereto) of the Company or any Restricted Subsidiary (other than liabilities that are by their terms subordinated to the first business day following Notes) that are assumed by the date transferee of receipt, in any given month, such assets;
(ii) any notes or other obligations or other securities received by Borrower the Company or such Restricted Subsidiary from such transferee that are converted by the Company or such Restricted Subsidiary into Cash Equivalents within 180 days of the receipt thereof (to the extent of the Cash Equivalents received); and
(iii) any Designated Noncash Consideration received by the 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 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 the Net Proceeds of any Asset Sale, the Company or such Restricted Subsidiary may apply the Net Proceeds from such Asset Sale, at its option to:
(i) permanently reduce Obligations under the Credit Agreement (and, in the case of revolving Obligations, to temporarily reduce such Obligations) or other Senior Indebtedness or Pari Passu Indebtedness (provided that if the Company shall so reduce Obligations under Pari Passu Indebtedness, it will equally and ratably reduce Obligations under the Notes by making an offer (in accordance with the procedures set forth below for an Asset Sale Offer) to all Holders to purchase at a purchase price equal to 100% of the principal amount thereof, plus accrued and unpaid interest, if any, the pro rata principal amount of Notes) or Indebtedness of a Restricted Subsidiary, in each case other than Indebtedness owed to the Company or an Affiliate of the Company;
(ii) make an investment in any one or more businesses, capital expenditures or acquisitions of other assets in each case used or useful in a Similar Business, or set aside in respect of a project in connection therewith that has been commenced or for which a binding contractual commitment has been entered into; and/or
(iii) make an investment in properties or assets that replace the properties and assets that are the subject of such Asset Sale, or set aside in respect of a project in connection therewith that has been commenced or for which a binding contractual commitment has been entered into. Pending the final application of any such Net Proceeds, the Company or such Restricted Subsidiary may temporarily reduce Indebtedness under a revolving credit facility, if any, or otherwise invest such Net Proceeds (in Cash Equivalents or Investment Grade Securities. Any Net Proceeds from any Asset Sale that are not applied as hereinafter defined) provided and within the time period set forth in excess the first sentence of this paragraph will be deemed to constitute “Excess Proceeds.” When the aggregate amount of Budgeted Expenses Excess Proceeds exceeds $10.0 million, the Company shall make an offer to all Holders of Notes (as defined an “Asset Sale Offer”) to purchase the maximum principal amount of Notes that may be purchased out of the Excess Proceeds at an offer price in Section 15(e) hereof) as set forth in the most recent Budget (as defined in Section 15(e)) required to be delivered pursuant to Section 15(e) hereof, Borrower shall prepay the Forbearance Period Advances as set forth in Section 3(i) hereof cash in an aggregate amount equal to such excess amount; provided, that (A) such Net Asset Sale Proceeds shall be deposited directly by the payee thereof into a deposit account held by Borrower at Amegy Bank, N.A. and (B) if, within 30 days of Borrower’s receipt of such Net Asset Sale Proceeds, Borrower has not paid one or more such Budgeted Expenses in an aggregate amount equal to 100% of the principal amount thereof, plus accrued and unpaid interest, if any, to but not including the date fixed for the closing of such proceeds not otherwise required to prepay offer, in accordance with the Forbearance Period Advances, then Borrower shall prepay the Forbearance Period Advances as procedures set forth in this Indenture. The Company will commence an Asset Sale Offer with respect to Excess Proceeds within ten Business Days after the date that Excess Proceeds exceed $10.0 million by mailing the notice required pursuant to the terms of this Indenture, with a copy to the Trustee. To the extent that the aggregate amount of Notes tendered pursuant to an Asset Sale Offer is less than the Excess Proceeds, the Company may use any remaining Excess Proceeds for general corporate purposes. If the aggregate principal amount of Notes surrendered by Holders thereof exceeds the amount of Excess Proceeds, the Trustee shall select the Notes to be purchased pursuant to Section 3(i4.06(c)(3). Upon completion of any such Asset Sale Offer, the amount of Excess Proceeds shall be reset at zero.
(1) hereof 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 paidlisted, 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). “Net Asset Sale Proceeds” means, with respect to any Asset Sale (as hereinafter defined), an A new Note in principal amount equal to: 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.
(1d) cash payments received by Borrower The Company shall comply with the requirements of Rule 14e-1 under the Exchange Act and any other securities laws and regulations to the extent such laws or any of its Subsidiaries from such Asset Sale, minus (2) any bona fide direct costs and expenses incurred regulations are applicable in connection with such the repurchase of the Notes pursuant to an Asset Sale to Offer. To the extent paid or payable to non-Affiliates, including (x) income or gains taxes payable or reasonably estimated to be payable by that the seller as a result provisions of any gain recognized in connection securities laws or regulations conflict with such Asset Sale during the tax period the sale occurs, (y) payment provisions of the obligations (other than the Loans) secured by a Lien on the assets in question, which is required to be repaid under the terms thereof as a result of such Asset Sale, and (z) a reasonable reserve for any adjustments in respect to sale price of such assets and any indemnification payments (fixed or contingent) attributable to seller’s indemnities and representations and warranties to purchaser in respect of such Asset Sale undertaken by Borrower or any of its Subsidiaries in connection with such Asset Sale; provided that upon release of any such reservethis Indenture, the amount released Company shall comply with the applicable securities laws and regulations and shall not be considered Net Asset Sale Proceeds). “Asset Sale” means a sale, lease or sublease (as lessor or sublessor), sale and leaseback, assignment, conveyance, transfer, license or other disposition to, or any exchange of property with, any Person (other than deemed to or with a Credit Party), have breached its obligations described in one transaction or a series of transactions, of all or any part of any Credit Party’s businesses, assets or properties of any kind, whether real, personal, or mixed and whether tangible or intangible, whether now owned or hereafter acquired, leased or licensed, including, without limitation, the capital stock of any Credit Party, other than inventory or other assets sold or leased, or cash or cash equivalents disposed of, in each case, in the ordinary course of business. For purposes of clarification, “Asset Sale” shall (i) include (x) the sale or other disposition for value of any contracts or (y) the early termination or modification of any contract resulting in the receipt this Indenture by any Credit Party of a cash payment or other consideration in exchange for such event (other than payments in the ordinary course of business for accrued and unpaid amounts due through the date of termination or modification) and (ii) exclude any taking or other disposition by means of power of eminent domain, condemnation or similar power, threat or rightvirtue thereof.
Appears in 2 contracts
Sources: Indenture (Otelco Inc.), Indenture (Otelco Telecommunications LLC)
Asset Sales. No later than the first business day following the date of receiptThe Company shall not, in any given month, by Borrower or and shall not permit any of its Subsidiaries of to, directly or indirectly, consummate any Net Asset Sale Proceeds unless:
(as hereinafter defineda) in excess the Company or such Subsidiary receives consideration at the time of such Asset Sale at least equal to the Fair Market Value of the aggregate amount of Budgeted Expenses (as defined in Section 15(e) hereof) as set forth in the most recent Budget (as defined in Section 15(e)) required to be delivered pursuant to Section 15(e) hereof, Borrower shall prepay the Forbearance Period Advances as set forth in Section 3(i) hereof in an aggregate amount equal Property subject to such excess amount; provided, that Asset Sale;
(Ab) such Net Asset Sale Proceeds shall be deposited directly by the payee thereof into a deposit account held by Borrower at Amegy Bank, N.A. and (B) if, within 30 days of Borrower’s receipt of such Net Asset Sale Proceeds, Borrower has not paid one or more such Budgeted Expenses in an aggregate amount equal to 100least 75% of the amount of such proceeds not otherwise required to prepay the Forbearance Period Advances, then Borrower shall prepay the Forbearance Period Advances as set forth in Section 3(i) hereof in an amount equal consideration paid to the amount not so paid. “Net Asset Sale Proceeds” means, with respect to any Asset Sale (as hereinafter defined), an amount equal to: (1) cash payments received by Borrower Company or any of its Subsidiaries from such Asset Sale, minus (2) any bona fide direct costs and expenses incurred Subsidiary in connection with such Asset Sale to is in the extent paid form of cash or payable to non-Affiliates, including (x) income Cash Equivalents or gains taxes payable or reasonably estimated to be payable the assumption by the seller as a result purchaser of any gain recognized in connection with such Asset Sale during the tax period the sale occurs, (y) payment liabilities of the obligations (other than the Loans) secured by a Lien on the assets in question, which is required to be repaid under the terms thereof as a result of such Asset Sale, and (z) a reasonable reserve for any adjustments in respect to sale price of such assets and any indemnification payments (fixed or contingent) attributable to seller’s indemnities and representations and warranties to purchaser in respect of such Asset Sale undertaken by Borrower Company or any of its Subsidiaries in connection with such Asset Sale; provided that upon release of any such reserve, the amount released shall be considered Net Asset Sale Proceeds). “Asset Sale” means a sale, lease or sublease (as lessor or sublessor), sale and leaseback, assignment, conveyance, transfer, license or other disposition to, or any exchange of property with, any Person (other than contingent liabilities or liabilities that are by their terms subordinated to the Notes or the applicable Guarantee) as a result of which the Company and its Subsidiaries are no longer obligated with a Credit Partyrespect to such liabilities; and
(c) the Company delivers an Officers’ Certificate to the Trustee certifying that such Asset Sale complies with the foregoing clauses (a) and (b), in one transaction or a series of transactions, of all . The Net Available Cash (or any part portion thereof) from Asset Sales may be applied by the Company or any of its Subsidiaries, to the extent the Company or such Subsidiary elects (or is required by the terms of any Credit Party’s businesses, assets or properties Debt) to reinvest in Additional Assets (including by means of any kind, whether real, personal, or mixed and whether tangible or intangible, whether now owned or hereafter acquired, leased or licensed, including, without limitation, the capital stock of any Credit Party, other than inventory or other assets sold or leased, or cash or cash equivalents disposed of, an Investment in each case, in the ordinary course of business. For purposes of clarification, “Asset Sale” shall (i) include (x) the sale or other disposition for value of any contracts or (y) the early termination or modification of any contract resulting in the receipt Additional Assets by any Credit Party Subsidiary of a cash payment the Company with Net Available Cash received by the Company or other consideration another Subsidiary of the Company). Any Net Available Cash from an Asset Sale not applied in exchange for such event (other than payments in accordance with the ordinary course of business for accrued and unpaid amounts due through preceding paragraph within 120 days from the date of termination the receipt of such Net Available Cash shall constitute “Excess Proceeds”. When the aggregate amount of Excess Proceeds exceeds $5.0 million (taking into account income earned on such Excess Proceeds, if any), the Company will be required to make an offer to repurchase (the “Asset Sale Offer”) the Notes, which offer shall be in the amount of the Allocable Excess Proceeds (rounded to the nearest $100,000), on a pro rata basis according to principal amount, at the Repurchase Amount, in accordance with the procedures (including prorating in the event of oversubscription) set forth in Section 3.02. To the extent that any portion of the amount of Net Available Cash remains after compliance with the preceding sentence and provided that all holders of Notes have been given the opportunity to tender their Notes for repurchase in accordance with Section 3.02, the Company or modification) such Subsidiary may use such remaining amount first to Repay the Credit Facilities or any other Senior Debt of the Company or any Guarantor or Debt of any Subsidiary of the Company that is not a Guarantor (excluding, in any such case, any Debt owed to the Company or an Affiliate of the Company), and (ii) exclude only thereafter, for any taking or other disposition purpose permitted by means this Indenture, and the amount of power of eminent domain, condemnation or similar power, threat or rightExcess Proceeds will be reset to zero.
Appears in 2 contracts
Sources: Indenture (American Dairy Inc), Indenture (American Dairy Inc)
Asset Sales. No later than Except for the first business day following sale of assets required to be ----------- sold to conform with governmental requirements, the date of receiptBorrower shall not, in any given month, by Borrower or and shall not permit any of its Subsidiaries to, consummate any Asset Sale, if the aggregate net book value of all such Asset Sales consummated during the four calendar quarters immediately preceding any Net Asset Sale Proceeds (as hereinafter defined) in excess date of determination would exceed 25% of the aggregate amount total assets of Budgeted Expenses (the Borrower and its Consolidated Subsidiaries as defined in Section 15(e) hereof) as set forth in of the beginning of the Borrower's most recent Budget (as defined in Section 15(e)) required to be delivered pursuant to Section 15(e) hereof, Borrower shall prepay the Forbearance Period Advances as set forth in Section 3(i) hereof in an aggregate amount equal to such excess amountrecently ended full fiscal quarter; provided, however, that (A) such Net Asset Sale Proceeds shall be deposited directly by the payee thereof into a deposit account held by Borrower at Amegy Bank, N.A. and (B) if, within 30 days of Borrower’s receipt of such Net Asset Sale Proceeds, Borrower has not paid one or more such Budgeted Expenses in an aggregate amount equal to 100% of the amount of such proceeds not otherwise required to prepay the Forbearance Period Advances, then Borrower shall prepay the Forbearance Period Advances as set forth in Section 3(i) hereof in an amount equal to the amount not so paid. “Net Asset Sale Proceeds” means, with respect to any Asset Sale (as hereinafter defined), an amount equal to: (1) cash payments received by Borrower or any of its Subsidiaries from such Asset Sale, minus (2) any bona fide direct costs and expenses incurred in connection with such Asset Sale to will be disregarded for purposes of -------- ------- the extent paid or payable to non-Affiliates, including 25% limitation specified above: (xa) income or gains taxes payable or reasonably estimated to be payable by the seller as a result of if any gain recognized in connection with such Asset Sale during the tax period the sale occurs, (y) payment of the obligations (other than the Loans) secured by a Lien on the assets in question, which is required to be repaid under the terms thereof as a result of such Asset Sale, and (z) a reasonable reserve for any adjustments in respect to sale price of such assets and any indemnification payments (fixed or contingent) attributable to seller’s indemnities and representations and warranties to purchaser in respect of such Asset Sale undertaken by Borrower or any of its Subsidiaries in connection with such Asset Sale; provided that upon release of any such reserve, the amount released shall be considered Net Asset Sale Proceeds). “Asset Sale” means a sale, lease or sublease (as lessor or sublessor), sale and leaseback, assignment, conveyance, transfer, license or other disposition to, or any exchange of property with, any Person (other than to or with a Credit Party), in one transaction or a series of transactions, of all or any part of any Credit Party’s businesses, assets or properties of any kind, whether real, personal, or mixed and whether tangible or intangible, whether now owned or hereafter acquired, leased or licensed, including, without limitation, the capital stock of any Credit Party, other than inventory or other assets sold or leased, or cash or cash equivalents disposed of, in each case, in the ordinary course of business. For purposes of clarification, “Asset Sale” shall (i) include (x) the sale or other disposition for value of any contracts or (y) the early termination or modification of any contract resulting in the receipt by any Credit Party of a cash payment or other consideration in exchange for such event (other than payments in the ordinary course of business for accrued of the Borrower and unpaid amounts due through its Subsidiaries; (b) if the date assets subject to any such Asset Sale are worn out or are no longer useful or necessary in connection with the operation of termination the businesses of the Borrower or modificationits Subsidiaries; (c) and if the assets subject to any such Asset Sale are being transferred to a Wholly-Owned Subsidiary of the Borrower; (d) to the extent the assets subject to any such Asset Sale involve transfers of assets of or equity interests in connection with the Caribou Investments Joint Venture; (e) if the proceeds from any such Asset Sale (i) are, within 12 months of such Asset Sale, invested or reinvested by the Borrower or any Subsidiary in a Permitted Business, (ii) exclude are used by the Borrower or a Subsidiary to repay Debt of the Borrower or such Subsidiary, or (iii) are retained by the Borrower or its Subsidiaries; or (f) if, prior to any taking or other disposition by means of power of eminent domainsuch Asset Sale, condemnation or similar power, threat or right▇▇▇▇▇'▇ and S&P confirm the then current Borrower Ratings after giving effect to any such Asset Sale.
Appears in 2 contracts
Sources: 364 Day Credit Agreement (PPL Corp), Credit Agreement (PPL Corp)
Asset Sales. No later than Together with each delivery of financial statements pursuant to Section 5.01(a) or 5.01(b), the first business day following Borrower shall deliver to the date of receipt, Administrative Agent a statement (a “Net Cash Proceeds Statement”) setting forth in any given month, by Borrower or any of its Subsidiaries of any Net Asset Sale Proceeds (as hereinafter defined) in excess of reasonable detail the aggregate amount of Budgeted Expenses Net Cash Proceeds received during the last fiscal quarter covered by such financial statements (the “Current Net Cash Proceeds”). If the aggregate amount of the Current Net Cash Proceeds when taken together with the aggregate amount of Net Cash Proceeds received after the Effective Date in prior fiscal quarters as defined in Section 15(e) hereof) to which a prepayment of the Indebtedness hereunder (as set forth in clause (A) below) or other permitted Indebtedness for borrowed money secured by Liens on the most recent Budget Collateral on a pari passu basis with the Liens securing the Obligations pursuant to clause (B) below has not yet been made under this paragraph (other than as defined a result of proceeds pending reinvestment or repayment of Maturing Indebtedness pursuant to the proviso hereto) shall exceed $500,000,000 in Section 15(e)the aggregate (such excess amount, the “Excess Disposition Proceeds”) then, not later than five Business Days after the delivery of the applicable Net Cash Proceeds Statement (or if such Net Cash Proceeds Statement shall not be delivered in conformity with the terms hereof, five Business Days after the date such Net Cash Proceeds Statement was required to be delivered pursuant to Section 15(e) hereofdelivered), the Borrower shall prepay the Forbearance Period Advances as set forth in Section 3(i) hereof in apply an aggregate amount equal to such excess amount; provided, that (A) such Net Asset Sale Proceeds shall be deposited directly by the payee thereof into a deposit account held by Borrower at Amegy Bank, N.A. and (B) if, within 30 days of Borrower’s receipt of such Net Asset Sale Proceeds, Borrower has not paid one or more such Budgeted Expenses in an aggregate amount equal to 100% of such Excess Disposition Proceeds towards the amount prepayment of such proceeds not otherwise required to prepay (A) the Forbearance Period Advances, then Borrower shall prepay the Forbearance Period Advances Loans as set forth in sub-clause (bb) of this paragraph (and/or provide cover for LC Exposure as specified in Section 3(i2.04(i)) hereof in an amount equal and (B) other permitted Indebtedness for borrowed money secured by Liens on the Collateral on a pari passu basis with the Liens securing the Obligations (but only to the extent required under the documentation governing such secured Indebtedness), pro rata based on their respective outstanding principal amount of loans thereunder as of the end of the period covered by the applicable financial statements (treating, for such purpose, as outstanding loans, the aggregate outstanding LC Exposure and the unused portion of the Commitments); provided that the Borrower shall not so paid. “Net Asset Sale Proceeds” means, be required to make a prepayment under this sub-clause (y) with respect to any Asset Sale portion of Net Cash Proceeds (as hereinafter definedor an equivalent amount) that (x), an amount equal to:
(1) cash payments received the Borrower states in the applicable Net Cash Proceeds Statement is to be reinvested (or has been reinvested) in any assets used or to be used by the Borrower or any of and its Restricted Subsidiaries from such Asset Salein its business, minus and (2) any bona fide direct costs are or have been or will be in fact so applied to such reinvestment within eighteen months of the related Asset Sale or Recovery Event or (y)
(1) the Borrower states in the applicable Net Cash Proceeds Statement is to be used to repay Maturing Indebtedness (or has been used to repay Maturing Indebtedness) and expenses incurred (2) are or have been or will be in connection with fact so applied to such repayment within 18 months of the related Asset Sale or Recovery Event. Notwithstanding the foregoing, if the Total Indebtedness Ratio as of the most recently delivered financial statements pursuant to Section 5.01(a) or 5.01(b), recomputed on a pro forma basis for such Asset Sale or Recovery Event, is less than 2.00 to 1.00, the extent paid or payable to non-Affiliates, including (x) income or gains taxes payable or reasonably estimated to be payable by the seller as a result of any gain recognized in connection with such Asset Sale during the tax period the sale occurs, (y) payment of the obligations (other than the Loans) secured by a Lien on the assets in question, which is required to be repaid under the terms thereof as a result of such Asset Sale, and (z) a reasonable reserve for any adjustments in respect to sale price of such assets and any indemnification payments (fixed or contingent) attributable to seller’s indemnities and representations and warranties to purchaser in respect proceeds of such Asset Sale undertaken by Borrower or any of its Subsidiaries in connection with such Asset Sale; provided that upon release of any such reserve, the amount released shall Recovery Event will not be considered Net Asset Sale Proceeds). “Asset Sale” means a sale, lease or sublease (as lessor or sublessor), sale and leaseback, assignment, conveyance, transfer, license or other disposition to, or any exchange of property with, any Person (other than subject to or with a Credit Party), in one transaction or a series of transactions, of all or any part of any Credit Party’s businesses, assets or properties of any kind, whether real, personal, or mixed and whether tangible or intangible, whether now owned or hereafter acquired, leased or licensed, including, without limitation, the capital stock of any Credit Party, other than inventory or other assets sold or leased, or cash or cash equivalents disposed of, in each case, included in the ordinary course calculation of business. For purposes of clarification, “Asset Sale” shall (i) include (x) the sale or other disposition for value of any contracts or amounts required to be prepaid pursuant to this sub-clause (y) the early termination or modification of any contract resulting in the receipt by any Credit Party of a cash payment or other consideration in exchange for such event (other than payments in the ordinary course of business for accrued and unpaid amounts due through the date of termination or modification) and (ii) exclude any taking or other disposition by means of power of eminent domain, condemnation or similar power, threat or right).
Appears in 2 contracts
Sources: Incremental Facility Amendment (SPRINT Corp), Credit Agreement (SPRINT Corp)
Asset Sales. No Not later than the first business day ten Business Days following the date of receipt, in any given month, by Borrower or any of its Subsidiaries receipt of any Net Cash Proceeds of any Asset Sale Proceeds by any Group Member (as hereinafter defined) in excess other than any issuance or sale of Equity Interests to or from Holdings, the aggregate amount of Budgeted Expenses (as defined in Section 15(e) hereof) as set forth in Borrower or a Subsidiary Guarantor), the most recent Budget (as defined in Section 15(e)) required to be delivered pursuant to Section 15(e) hereof, Borrower shall prepay the Forbearance Period Advances as set forth in Section 3(i) hereof in apply an aggregate amount equal to the Applicable Net Cash Proceeds Percentage of such excess amountNet Cash Proceeds to make prepayments in accordance with Section 2.10(h) and Section 2.10(i); provided, that provided that:
(i) no such prepayment shall be required under this clause (c) (A) such Net Asset Sale Proceeds shall be deposited directly by the payee thereof into a deposit account held by Borrower at Amegy Bank, N.A. and (B) if, within 30 days of Borrower’s receipt of such Net Asset Sale Proceeds, Borrower has not paid one or more such Budgeted Expenses in an aggregate amount equal to 100% of the amount of such proceeds not otherwise required to prepay the Forbearance Period Advances, then Borrower shall prepay the Forbearance Period Advances as set forth in Section 3(i) hereof in an amount equal to the amount not so paid. “Net Asset Sale Proceeds” means, with respect to any disposition of property which constitutes a Casualty Event or (B) to the extent the Net Cash Proceeds of any Asset Sales or series of related Asset Sales do not result in more than $2,500,000 (or, if the Specified 2018 Acquisition is consummated on or prior to the date that is 180 days after the Closing Date, $3,350,000) per Asset Sale or series of related Asset Sales or an aggregate amount of Net Cash Proceeds of more than $5,000,000 (as hereinafter definedor, if the Specified 2018 Acquisition is consummated on or prior to the date that is 180 days after the Closing Date, $6,800,000) in any twelve month period (the “Asset Sale Threshold” and the Net Cash Proceeds in excess of the Asset Sale Threshold, the “Excess Net Cash Proceeds”; and such Net Cash Proceeds not subject to prepayment on account of the Applicable Net Cash Proceeds Percentage being less than 100%, the “Retained Asset Sale Proceeds”), an amount equal to: ;
(1ii) cash payments received by Borrower or such proceeds with respect to any of its Subsidiaries from such Asset Sale, minus (2) any bona fide direct costs and expenses incurred in connection with such Asset Sale shall not be required to be so applied on such date to the extent paid that the Borrower shall have notified the Administrative Agent on or payable prior to non-Affiliates, including (x) income or gains taxes payable or reasonably estimated such date stating that such Excess Net Cash Proceeds are expected to be payable by reinvested in assets used or useful in the seller as a result business of any gain recognized in connection with such Asset Sale during the tax period the sale occursGroup Member (including pursuant to a Permitted Acquisition, (yInvestment or Capital Expenditure) payment of the obligations (other than the Loans) secured by a Lien on the assets in question, which is required or to be repaid under contractually committed to be so reinvested, within 18 months (or within 24 months following receipt thereof if a contractual commitment to reinvest is entered into within 18 months following receipt thereof) following the terms thereof as a result date of such Asset Sale, and ; and
(ziii) a reasonable reserve for any adjustments in respect to sale price of such assets and any indemnification payments (fixed or contingent) attributable to seller’s indemnities and representations and warranties to purchaser in respect of such Asset Sale undertaken by Borrower or any of its Subsidiaries in connection with such Asset Sale; provided that upon release of any such reserve, the amount released shall be considered Net Asset Sale Proceeds). “Asset Sale” means a sale, lease or sublease (as lessor or sublessor), sale and leaseback, assignment, conveyance, transfer, license or other disposition to, or any exchange of property with, any Person (other than to or with a Credit Party), in one transaction or a series of transactions, of if all or any part portion of any Credit Party’s businesses, assets or properties such Excess Net Cash Proceeds that are subject of any kind, whether real, personal, or mixed and whether tangible or intangible, whether now owned or hereafter acquired, leased or licensed, including, without limitation, the capital stock of any Credit Party, other than inventory or other assets sold or leased, or cash or cash equivalents disposed of, in each case, in the ordinary course of business. For purposes of clarification, “Asset Sale” shall (i) include (x) the sale or other disposition for value of any contracts or (y) the early termination or modification of any contract resulting in the receipt by any Credit Party of a cash payment or other consideration in exchange for such event (other than payments in the ordinary course of business for accrued and unpaid amounts due through the date of termination or modification) and clause (ii) exclude any taking or other disposition by means immediately above is neither reinvested nor contractually committed to be so reinvested within such 18 month period (and actually reinvested within 24 months of power the receipt of eminent domainthe Net Cash Proceeds related thereto), condemnation or similar power, threat or rightsuch unused portion shall be applied within five Business Days after the last day of such period as a mandatory prepayment as provided in this Section 2.10(c).
Appears in 2 contracts
Sources: Credit Agreement (Ping Identity Holding Corp.), Credit Agreement (Roaring Fork Holding, Inc.)
Asset Sales. No later than Except for the first business day following the date sale of receipt, in any given month, by Borrower or any of its Subsidiaries of any Net Asset Sale Proceeds (as hereinafter defined) in excess of the aggregate amount of Budgeted Expenses (as defined in Section 15(e) hereof) as set forth in the most recent Budget (as defined in Section 15(e)) assets required to be delivered pursuant sold to Section 15(e) hereofconform with governmental requirements, Borrower the Applicable Reporting Entity, and in the case of the Guarantor, its Material Subsidiaries, shall prepay not consummate any Asset Sale, if the Forbearance Period Advances aggregate net book value of all such Asset Sales consummated during the four calendar quarters immediately preceding any date of determination would exceed 25% of the total assets of the Applicable Reporting Entity and its Consolidated Subsidiaries as set forth in Section 3(i) hereof in an aggregate amount equal to such excess amountof the beginning of the Applicable Reporting Entity’s most recently ended full fiscal quarter; provided, however, that (A) such Net Asset Sale Proceeds shall be deposited directly by the payee thereof into a deposit account held by Borrower at Amegy Bank, N.A. and (B) if, within 30 days of Borrower’s receipt of such Net Asset Sale Proceeds, Borrower has not paid one or more such Budgeted Expenses in an aggregate amount equal to 100% of the amount of such proceeds not otherwise required to prepay the Forbearance Period Advances, then Borrower shall prepay the Forbearance Period Advances as set forth in Section 3(i) hereof in an amount equal to the amount not so paid. “Net Asset Sale Proceeds” means, with respect to any Asset Sale (as hereinafter defined), an amount equal to: (1) cash payments received by Borrower or any of its Subsidiaries from such Asset Sale, minus (2) any bona fide direct costs and expenses incurred in connection with such Asset Sale to will be disregarded for purposes of the extent paid or payable to non-Affiliates, including 25% limitation specified above: (xa) income or gains taxes payable or reasonably estimated to be payable by the seller as a result of if any gain recognized in connection with such Asset Sale during the tax period the sale occurs, (y) payment of the obligations (other than the Loans) secured by a Lien on the assets in question, which is required to be repaid under the terms thereof as a result of such Asset Sale, and (z) a reasonable reserve for any adjustments in respect to sale price of such assets and any indemnification payments (fixed or contingent) attributable to seller’s indemnities and representations and warranties to purchaser in respect of such Asset Sale undertaken by Borrower or any of its Subsidiaries in connection with such Asset Sale; provided that upon release of any such reserve, the amount released shall be considered Net Asset Sale Proceeds). “Asset Sale” means a sale, lease or sublease (as lessor or sublessor), sale and leaseback, assignment, conveyance, transfer, license or other disposition to, or any exchange of property with, any Person (other than to or with a Credit Party), in one transaction or a series of transactions, of all or any part of any Credit Party’s businesses, assets or properties of any kind, whether real, personal, or mixed and whether tangible or intangible, whether now owned or hereafter acquired, leased or licensed, including, without limitation, the capital stock of any Credit Party, other than inventory or other assets sold or leased, or cash or cash equivalents disposed of, in each case, in the ordinary course of business. For purposes of clarification, “Asset Sale” shall (i) include (x) the sale or other disposition for value of any contracts or (y) the early termination or modification of any contract resulting in the receipt by any Credit Party of a cash payment or other consideration in exchange for such event (other than payments in the ordinary course of business for accrued of the Applicable Reporting Entity and unpaid amounts due through its Subsidiaries; (b) if the date assets subject to any such Asset Sale are worn out or are no longer useful or necessary in connection with the operation of termination the businesses of the Applicable Reporting Entity or modificationits Subsidiaries; (c) and if the assets subject to any such Asset Sale are being transferred to a Wholly Owned Subsidiary of the Applicable Reporting Entity; (d) if the proceeds from any such Asset Sale (i) are, within twelve (12) months of such Asset Sale, invested or reinvested by the Applicable Reporting Entity or any Subsidiary thereof in a Permitted Business, (ii) exclude are used by the Applicable Reporting Entity or any taking Subsidiary thereof to repay Debt of the Applicable Reporting Entity or other disposition any Subsidiary thereof, or (iii) are retained by means of power of eminent domainthe Applicable Reporting Entity or any Subsidiary thereof; or (e) if, condemnation or similar powerprior to any such Asset Sale, threat or rightboth Rating Agencies confirm the then-current Borrower’s Applicable Ratings after giving effect to any such Asset Sale.
Appears in 2 contracts
Sources: Revolving Credit Agreement (Louisville Gas & Electric Co /Ky/), Revolving Credit Agreement (Louisville Gas & Electric Co /Ky/)
Asset Sales. No later than (a) The Company shall not, and shall not permit any of its Restricted Subsidiaries to, consummate an Asset Sale unless:
(1) the first business day Company (or the Restricted Subsidiary, as the case may be) receives consideration at the time of such Asset Sale at least equal to the Fair Market Value of the assets or Equity Interests issued or sold or otherwise disposed of; provided that this clause (1) shall not apply to an Asset Sale resulting solely from a foreclosure or sale by a third party upon assets or property subject to a Lien not prohibited by this Indenture;
(2) where such Fair Market Value exceeds $100.0 million, the Company’s determination of such Fair Market Value is set forth in an Officers’ Certificate delivered to the Trustee; and
(3) at least 75% of the consideration therefor received 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 shall be deemed to be Cash Equivalents:
A. any liabilities (as shown on the Company’s or such Restricted Subsidiary’s most recent balance sheet, or would be shown on the Company’s or such Restricted Subsidiary’s balance sheet on the date of receiptsuch Asset Sale) of the Company or any Restricted Subsidiary (other than contingent liabilities, Indebtedness that is by its terms subordinated to the Securities of each series then Outstanding or any Note Guarantee and liabilities to the extent owed to the Company or any Affiliate of the Company) that are assumed by the transferee of any such assets pursuant to a written agreement that releases the Company or such Restricted Subsidiary from further liability therefor; and
B. any securities, notes or other obligations received by the Company or any such Restricted Subsidiary from such transferee that are converted (including by way of any Monetization Transaction) by the Company or such Restricted Subsidiary into cash (to the extent of the cash received in any given month, by Borrower that conversion) within 180 days of such Asset Sale.
(b) The Company or any of its Restricted Subsidiaries may use the Net Proceeds of any Net Asset Sale Proceeds (as hereinafter defined) in excess of the aggregate amount of Budgeted Expenses (as defined in Section 15(e) hereof) as set forth in the most recent Budget (as defined in Section 15(e)) required to be delivered pursuant to Section 15(e) hereof, Borrower shall prepay the Forbearance Period Advances as set forth in Section 3(i) hereof in an aggregate amount equal to such excess amount; provided, that (A) such Net Asset Sale Proceeds shall be deposited directly by the payee thereof into a deposit account held by Borrower at Amegy Bank, N.A. and (B) if, within 30 days of Borrower’s receipt of such Net Asset Sale Proceeds, Borrower has not paid one or more such Budgeted Expenses in an aggregate amount equal to 100% of the amount of such proceeds not otherwise required to prepay the Forbearance Period Advances, then Borrower shall prepay the Forbearance Period Advances as set forth in Section 3(i) hereof in an amount equal to the amount not so paid. “Net Asset Sale Proceeds” means, with respect to any Asset Sale (as hereinafter defined), an amount equal to: (1) cash payments received in any manner that is not prohibited by Borrower or any of its Subsidiaries from such Asset Sale, minus (2) any bona fide direct costs and expenses incurred in connection with such Asset Sale to the extent paid or payable to non-Affiliates, including (x) income or gains taxes payable or reasonably estimated to be payable by the seller as a result of any gain recognized in connection with such Asset Sale during the tax period the sale occurs, (y) payment of the obligations (other than the Loans) secured by a Lien on the assets in question, which is required to be repaid under the terms thereof as a result of such Asset Sale, and (z) a reasonable reserve for any adjustments in respect to sale price of such assets and any indemnification payments (fixed or contingent) attributable to seller’s indemnities and representations and warranties to purchaser in respect of such Asset Sale undertaken by Borrower or any of its Subsidiaries in connection with such Asset Sale; provided that upon release of any such reserve, the amount released shall be considered Net Asset Sale Proceeds). “Asset Sale” means a sale, lease or sublease (as lessor or sublessor), sale and leaseback, assignment, conveyance, transfer, license or other disposition to, or any exchange of property with, any Person (other than to or with a Credit Party), in one transaction or a series of transactions, of all or any part of any Credit Party’s businesses, assets or properties of any kind, whether real, personal, or mixed and whether tangible or intangible, whether now owned or hereafter acquired, leased or licensed, including, without limitation, the capital stock of any Credit Party, other than inventory or other assets sold or leased, or cash or cash equivalents disposed of, in each case, in the ordinary course of business. For purposes of clarification, “Asset Sale” shall (i) include (x) the sale or other disposition for value of any contracts or (y) the early termination or modification of any contract resulting in the receipt by any Credit Party of a cash payment or other consideration in exchange for such event (other than payments in the ordinary course of business for accrued and unpaid amounts due through the date of termination or modification) and (ii) exclude any taking or other disposition by means of power of eminent domain, condemnation or similar power, threat or rightthis Indenture.
Appears in 2 contracts
Sources: Indenture (AMC Networks Inc.), Indenture (WE TV Studios LLC)
Asset Sales. No later than The Company will not, and will not permit any of its Restricted Subsidiaries to, consummate an Asset Sale unless:
(1) the first business day 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; and
(2) at least 75% of the consideration received by the Company or such Restricted Subsidiary in the Asset Sale and all other Asset Sales since September 21, 2010 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 be deemed to be cash:
(A) any liabilities, as shown on the Company’s most recent consolidated balance sheet (or as would be shown on the Company’s consolidated balance sheet as of the date of receiptsuch Asset Sale), in any given month, by Borrower of the Company or any Restricted Subsidiary (other than contingent liabilities and liabilities that are by their terms subordinated to the Notes or any Note Guarantee) that are assumed by the transferee of its Subsidiaries any such assets pursuant to a 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 by the Company or such Restricted Subsidiary into cash, Cash Equivalents or Replacement Assets within 90 days after such Asset Sale, to the extent of the cash, Cash Equivalents or Replacement Assets received in that conversion. Notwithstanding the foregoing, the 75% limitation referred to above shall be deemed satisfied with respect to any Asset Sale in which the cash, Cash Equivalents or Replacement Assets portion of the consideration received therefrom, determined in accordance with the foregoing provision 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 from an Asset Sale, the Company or a Restricted Subsidiary may apply an amount equal to such Net Proceeds:
(1) to purchase Replacement Assets; or
(2) to prepay, repay, defease, redeem, purchase or otherwise retire Indebtedness and other Obligations under a Credit Facility or Indebtedness secured by property that is subject to such Asset Sale or any secured Indebtedness and, if the Indebtedness repaid is revolving credit Indebtedness, to correspondingly reduce commitments with respect thereto. Notwithstanding the foregoing, if within 365 days after the receipt of any Net Proceeds from an Asset Sale, the Company or a Restricted Subsidiary enters into a binding written agreement committing the Company or such Restricted Subsidiary, subject to customary conditions, to an application of funds of the kind described in clause (1) above, the Company or such Restricted Subsidiary shall be deemed not to be in violation of the preceding paragraph so long as hereinafter defined) such application of funds is consummated within 545 days of the receipt of such Net Proceeds. Pending the final application of any Net Proceeds of an Asset Sale, the Company may temporarily reduce revolving credit borrowings or otherwise use the Net Proceeds in excess any manner that is not prohibited by the Indenture. An amount equal to any Net Proceeds from Asset Sales that are not applied or invested as provided in the third paragraph of this Section 4.10 will constitute “Excess Proceeds.” When the aggregate amount of Budgeted Expenses (as defined in Section 15(e) hereof) as set forth in Excess Proceeds exceeds $20.0 million, within 20 days thereof, the most recent Budget (as defined in Section 15(e)) required to be delivered pursuant to Section 15(e) hereof, Borrower Company shall prepay apply the Forbearance Period Advances as set forth in Section 3(i) hereof in an entire aggregate amount equal of unutilized Excess Proceeds (not only the amount in excess of $20.0 million) to such excess amount; provided, that make an offer (A) such Net an “Asset Sale Proceeds shall Offer”) to all Holders of Notes and all holders of other Indebtedness that is pari passu with the Notes containing provisions requiring the Company to make an offer to purchase or redeem with the proceeds of sales of assets in accordance with Section 3.07 of the Base Indenture to purchase the maximum principal amount of Notes and purchase or redeem such other pari passu Indebtedness that may be deposited directly by purchased or redeemed out of the payee thereof into a deposit account held by Borrower at Amegy Bank, N.A. and (B) if, within 30 days of Borrower’s receipt of such Net Excess Proceeds. The offer price in any Asset Sale Proceeds, Borrower has not paid one or more such Budgeted Expenses in an aggregate amount Offer will be equal to 100% of the principal amount of the Notes and such proceeds other pari passu Indebtedness that may be purchased or redeemed with Excess Proceeds, plus accrued and unpaid interest to, but not including, the date of consummation of the 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 the Indenture. If the aggregate principal amount of Notes and other pari passu Indebtedness tendered in response to such Asset Sale Offer exceeds the amount of Excess Proceeds, the Trustee shall select the Notes and the Company will select such other pari passu Indebtedness to be purchased or redeemed on a pro rata basis unless otherwise required to prepay by law or applicable stock exchange or depositary requirements. Upon completion of each Asset Sale Offer, the Forbearance Period Advances, then Borrower shall prepay amount of Excess Proceeds will be reset at zero. The Company will comply with the Forbearance Period Advances as set forth in Section 3(i) hereof in an amount equal requirements of Rule 14e-1 under the Exchange Act and any other securities laws and regulations thereunder to the amount not so paid. “Net Asset Sale Proceeds” means, with respect to any Asset Sale (as hereinafter defined), an amount equal to: (1) cash payments received by Borrower or any of its Subsidiaries from such Asset Sale, minus (2) any bona fide direct costs extent those laws and expenses incurred regulations are applicable in connection with such each repurchase of Notes pursuant to an Asset Sale to Offer. To the extent paid or payable to non-Affiliates, including (x) income or gains taxes payable or reasonably estimated to be payable by that the seller as a result provisions of any gain recognized in connection securities laws or regulations conflict with such Asset Sale during the tax period the sale occurs, (y) payment provisions of Section 3.07 of the obligations (other than Base Indenture or this Section 4.10, or compliance with Section 3.07 of the Loans) secured by Base Indenture or this Section 4.10 would constitute a Lien on the assets in question, which is required to be repaid under the terms thereof as a result of such Asset Sale, and (z) a reasonable reserve for any adjustments in respect to sale price of such assets and any indemnification payments (fixed or contingent) attributable to seller’s indemnities and representations and warranties to purchaser in respect of such Asset Sale undertaken by Borrower or any of its Subsidiaries in connection with such Asset Sale; provided that upon release violation of any such reservelaws or regulations, the amount released shall Company will comply with the applicable securities laws and regulations and will not be considered Net Asset Sale Proceeds). “Asset Sale” means a sale, lease deemed to have breached its obligations under Section 3.07 of the Base Indenture or sublease (as lessor or sublessor), sale and leaseback, assignment, conveyance, transfer, license or other disposition to, or any exchange this Section 4.10 by virtue of property with, any Person (other than to or with a Credit Party), in one transaction or a series of transactions, of all or any part of any Credit Party’s businesses, assets or properties of any kind, whether real, personal, or mixed and whether tangible or intangible, whether now owned or hereafter acquired, leased or licensed, including, without limitation, the capital stock of any Credit Party, other than inventory or other assets sold or leased, or cash or cash equivalents disposed of, in each case, in the ordinary course of business. For purposes of clarification, “Asset Sale” shall (i) include (x) the sale or other disposition for value of any contracts or (y) the early termination or modification of any contract resulting in the receipt by any Credit Party of a cash payment or other consideration in exchange for such event (other than payments in the ordinary course of business for accrued and unpaid amounts due through the date of termination or modification) and (ii) exclude any taking or other disposition by means of power of eminent domain, condemnation or similar power, threat or rightcompliance.
Appears in 2 contracts
Sources: First Supplemental Indenture (Metropcs Communications Inc), Second Supplemental Indenture (Metropcs Communications Inc)
Asset Sales. No Not later than the first business day ten (10) Business Days following the date of receipt, in any given month, by Borrower or any of its Subsidiaries receipt of any Net Cash Proceeds of any Asset Sale Proceeds by any Group Member (as hereinafter defined) in excess other than any issuance or sale of Equity Interests to or from Holdings, a Borrower or a Subsidiary Guarantor), the aggregate amount of Budgeted Expenses (as defined in Section 15(e) hereof) as set forth in the most recent Budget (as defined in Section 15(e)) required to be delivered pursuant to Section 15(e) hereof, Borrower Borrowers shall prepay the Forbearance Period Advances as set forth in Section 3(i) hereof in an aggregate amount equal to such excess amount; provided, that (A) such Net Asset Sale Proceeds shall be deposited directly by the payee thereof into a deposit account held by Borrower at Amegy Bank, N.A. and (B) if, within 30 days of Borrower’s receipt of such Net Asset Sale Proceeds, Borrower has not paid one or more such Budgeted Expenses in apply an aggregate amount equal to 100% of such Net Cash Proceeds to make prepayments in accordance with Sections 2.10(h) and 2.10(i); provided that:
(i) no such prepayment shall be required under this subclause (i) with respect to (A) the amount disposition of property which constitutes a Casualty Event, or (B) to the extent the Net Cash Proceeds of any Asset Sales or series of related Asset Sales do not result in more than $2,500,000 per twelve (12) month period (the “Asset Sale Threshold” and the Net Cash Proceeds in excess of the Asset Sale Threshold, the “Excess Net Cash Proceeds”) in Net Cash Proceeds per Asset Sale (or series of related Asset Sales); and
(ii) so long as no Event of Default shall then exist or would immediately arise therefrom, such proceeds not otherwise required to prepay the Forbearance Period Advances, then Borrower shall prepay the Forbearance Period Advances as set forth in Section 3(i) hereof in an amount equal to the amount not so paid. “Net Asset Sale Proceeds” means, with respect to any Asset Sale (as hereinafter defined), an amount equal to: (1) cash payments received by Borrower or any of its Subsidiaries from such Asset Sale, minus (2) any bona fide direct costs and expenses incurred in connection with such Asset Sale shall not be required to be so applied on such date to the extent paid that the Borrower Agent shall have notified the Administrative Agent on or payable prior to non-Affiliates, including (x) income or gains taxes payable or reasonably estimated such date stating that such Excess Net Cash Proceeds are expected to be payable by reinvested in assets used or useful in the seller as a result business of any gain recognized in connection with such Asset Sale during the tax period the sale occurs, Group Member (yincluding pursuant to a Permitted Acquisition) payment of the obligations (other than the Loans) secured by a Lien on the assets in question, which is required or to be repaid under contractually committed to be so reinvested, within twelve (12) months (or within eighteen (18) months following receipt thereof if a contractual commitment to reinvest is entered into within twelve (12) months following receipt thereof) following the terms thereof as a result date of such Asset Sale; provided, and (z) a reasonable reserve for any adjustments in respect that if the Property subject to sale price of such assets and any indemnification payments (fixed or contingent) attributable to seller’s indemnities and representations and warranties to purchaser in respect of such Asset Sale undertaken by Borrower constituted Collateral, then all Property purchased or any of its Subsidiaries in connection otherwise acquired with such Asset Sale; provided that upon release of any such reserve, the amount released Excess Net Cash Proceeds thereof pursuant to this subsection shall be considered Net Asset Sale Proceeds). “Asset Sale” means a salemade subject to the first priority perfected Lien (subject to Permitted Liens) of the applicable Security Documents in favor of the Collateral Agent, lease or sublease for its benefit and for the benefit of the other Secured Parties in accordance with Section 5.10 and 5.11; and
(as lessor or sublessor), sale and leaseback, assignment, conveyance, transfer, license or other disposition to, or any exchange of property with, any Person (other than to or with a Credit Party), in one transaction or a series of transactions, of iii) if all or any part portion of any Credit Party’s businesses, assets or properties such Excess Net Cash Proceeds is neither reinvested nor contractually committed to be so reinvested within such twelve (12) month period (and actually reinvested within eighteen (18) months of any kind, whether real, personal, or mixed and whether tangible or intangible, whether now owned or hereafter acquired, leased or licensed, including, without limitation, the capital stock of any Credit Party, other than inventory or other assets sold or leased, or cash or cash equivalents disposed of, in each case, in the ordinary course of business. For purposes of clarification, “Asset Sale” shall (i) include (x) the sale or other disposition for value of any contracts or (y) the early termination or modification of any contract resulting in the receipt by any Credit Party of the Net Cash Proceeds related thereto), such unused portion shall be applied within ten (10) Business Days after the last day of such period as a cash payment or other consideration mandatory prepayment as provided in exchange for such event (other than payments in the ordinary course of business for accrued and unpaid amounts due through the date of termination or modification) and (ii) exclude any taking or other disposition by means of power of eminent domain, condemnation or similar power, threat or rightthis Section 2.10(c).
Appears in 2 contracts
Sources: Second Lien Credit Agreement (Transfirst Holdings Corp.), First Lien Credit Agreement (Transfirst Holdings Corp.)
Asset Sales. No later than the first business day following the date of receipt, in any given month, by (a) The Borrower or any of and its Subsidiaries of any Net will not consummate an Asset Sale Proceeds unless:
(as hereinafter definedi) in excess the Borrower (or a Subsidiary of the aggregate amount Borrower, as the case may be) receives consideration at the time of Budgeted Expenses the Asset Sale at least equal to the fair market value of the assets or Equity Interests issued or sold or otherwise disposed of;
(as defined in Section 15(eii) hereof) as the fair market value is determined by the Borrower’s Board of Directors and evidenced by a resolution of the Board of Directors set forth in an officers’ certificate delivered to the most recent Budget Administrative Agent; and
(as defined iii) at least 75% of the consideration received in Section 15(e)the Asset Sale by the Borrower or such Subsidiary of the Borrower is in the form of cash or Cash Equivalents except to the extent the Borrower is undertaking a Permitted Asset Swap. For purposes of this provision and subparagraph (b)(iii) required below, each of the following shall be deemed to be delivered pursuant to Section 15(e) hereof, Borrower shall prepay the Forbearance Period Advances as set forth in Section 3(i) hereof in an aggregate amount equal to such excess amount; provided, that cash:
(A) such Net Asset Sale Proceeds shall be deposited directly any liabilities, as shown on the Borrower’s most recent consolidated balance sheet of the Borrower and its Subsidiaries (other than contingent liabilities and liabilities that are by their terms subordinated to the Loans and the Senior Subordinated Notes) that are assumed by the payee thereof into transferee of any such assets pursuant to a deposit account held by customary novation agreement that releases the Borrower at Amegy Bank, N.A. and or such Subsidiary from further liability; and
(B) ifany securities, within 30 days of Borrower’s receipt of such Net Asset Sale Proceeds, Borrower has not paid one notes or more such Budgeted Expenses in an aggregate amount equal to 100% of the amount of such proceeds not otherwise required to prepay the Forbearance Period Advances, then Borrower shall prepay the Forbearance Period Advances as set forth in Section 3(i) hereof in an amount equal to the amount not so paid. “Net Asset Sale Proceeds” means, with respect to any Asset Sale (as hereinafter defined), an amount equal to: (1) cash payments other obligations received by the Borrower or any of its Subsidiaries from such transferee converted by the Borrower or such Subsidiary within 90 days into cash or Cash Equivalents, to the extent of the cash or Cash Equivalents received in that conversion. The 75% limitation referred to in clause (iii) above will not apply to any Asset SaleSale in which the cash or Cash Equivalents portion of the consideration received therefrom, minus (2) any bona fide direct costs and expenses incurred determined in connection accordance with the preceding provision, is equal to or greater than what the after tax proceeds would have been had such Asset Sale complied with the aforementioned 75% limitation.
(b) Notwithstanding the foregoing, the Borrower and each of its Subsidiaries will be permitted to the extent paid or payable to non-Affiliates, including (x) income or gains taxes payable or reasonably estimated to be payable by the seller as a result of any gain recognized in connection with such consummate an Asset Sale during without complying with the tax period foregoing if:
(i) the sale occurs, (y) payment of Borrower or such Subsidiary receives consideration at the obligations (other than the Loans) secured by a Lien on the assets in question, which is required to be repaid under the terms thereof as a result of such Asset Sale, and (z) a reasonable reserve for any adjustments in respect to sale price of such assets and any indemnification payments (fixed or contingent) attributable to seller’s indemnities and representations and warranties to purchaser in respect time of such Asset Sale undertaken at least equal to the fair market value of the assets or other property sold, issued or otherwise disposed of;
(ii) the fair market value is determined by the Borrower’s Board of Directors and evidenced by a resolution of the Board of Directors set forth in certificate of a Financial Officer delivered to the Administrative Agent; and
(iii) at least 75% of the consideration for such Asset Sale constitutes a controlling interest in a Permitted Business, assets used or useful in a Permitted Business and/or cash and Cash Equivalents; provided, however, that any cash or Cash Equivalents (other than any amount deemed cash under clause (iii)(A) of Section 7.7(a)) received by the Borrower or any of its Subsidiaries such Subsidiary in connection with such Asset Sale; provided that upon release of any such reserve, the amount released shall be considered Net Asset Sale Proceedspermitted to be consummated under this paragraph shall constitute Net Cash Payments subject to the provisions of Section 2.11(b). “Asset Sale” means a sale, lease or sublease (as lessor or sublessor), sale and leaseback, assignment, conveyance, transfer, license or other disposition to, or any exchange of property with, any Person (other than to or with a Credit Party), in one transaction or a series of transactions, of all or any part of any Credit Party’s businesses, assets or properties of any kind, whether real, personal, or mixed and whether tangible or intangible, whether now owned or hereafter acquired, leased or licensed, including, without limitation, the capital stock of any Credit Party, other than inventory or other assets sold or leased, or cash or cash equivalents disposed of, in each case, in the ordinary course of business. For purposes of clarification, “Asset Sale” shall (i) include (x) the sale or other disposition for value of any contracts or (y) the early termination or modification of any contract resulting in the receipt by any Credit Party of a cash payment or other consideration in exchange for such event (other than payments in the ordinary course of business for accrued and unpaid amounts due through the date of termination or modification) and (ii) exclude any taking or other disposition by means of power of eminent domain, condemnation or similar power, threat or right.
Appears in 2 contracts
Sources: Term Loan Agreement (Lbi Media Holdings Inc), Term Loan Agreement (Lbi Media Inc)
Asset Sales. No later than From and after the first business day following Trigger Date, the date of receiptParent will not, in any given month, by Borrower or and will not permit any of its the Subsidiaries of any Net Asset Sale Proceeds (as hereinafter defined) in excess of the aggregate amount of Budgeted Expenses (as defined in Section 15(e) hereof) as set forth in the most recent Budget (as defined in Section 15(e)) required to be delivered pursuant to Section 15(e) hereofto, Borrower shall prepay the Forbearance Period Advances as set forth in Section 3(i) hereof in an aggregate amount equal to such excess amount; providedsell, that (A) such Net Asset Sale Proceeds shall be deposited directly by the payee thereof into a deposit account held by Borrower at Amegy Bankconvey, N.A. and (B) if, within 30 days of Borrower’s receipt of such Net Asset Sale Proceeds, Borrower has not paid one or more such Budgeted Expenses in an aggregate amount equal to 100% of the amount of such proceeds not otherwise required to prepay the Forbearance Period Advances, then Borrower shall prepay the Forbearance Period Advances as set forth in Section 3(i) hereof in an amount equal to the amount not so paid. “Net Asset Sale Proceeds” means, with respect to any Asset Sale (as hereinafter defined), an amount equal to: (1) cash payments received by Borrower or any of its Subsidiaries from such Asset Sale, minus (2) any bona fide direct costs and expenses incurred in connection with such Asset Sale to the extent paid or payable to non-Affiliates, including (x) income or gains taxes payable or reasonably estimated to be payable by the seller as a result of any gain recognized in connection with such Asset Sale during the tax period the sale occurs, (y) payment of the obligations (other than the Loans) secured by a Lien on the assets in question, which is required to be repaid under the terms thereof as a result of such Asset Sale, and (z) a reasonable reserve for any adjustments in respect to sale price of such assets and any indemnification payments (fixed or contingent) attributable to seller’s indemnities and representations and warranties to purchaser in respect of such Asset Sale undertaken by Borrower or any of its Subsidiaries in connection with such Asset Sale; provided that upon release of any such reserve, the amount released shall be considered Net Asset Sale Proceeds). “Asset Sale” means a saletransfer, lease or sublease otherwise dispose of, any of their respective assets or any interest therein (as lessor including the sale or sublessor)factoring at maturity or collection of any accounts) to any Person, sale and leasebackor permit or suffer any other Person to acquire any interest in any of their respective assets or, assignmentin the case of any Subsidiary, issue or sell any shares of such Subsidiary's Stock or Stock Equivalents (any such sale, conveyance, transfer, license lease or other disposition to, or any exchange of property with, any Person (other than to or with a Credit Partybeing an "ASSET SALE"), in one transaction or a series of transactions, of all or any part of any Credit Party’s businesses, assets or properties of any kind, whether real, personal, or mixed and whether tangible or intangible, whether now owned or hereafter acquired, leased or licensed, including, without limitationexcept:
(a) transactions permitted by Section 10.09 hereof;
(b) transactions permitted by Section 10.10 hereof;
(c) subject to Section 10.06 hereof, the capital stock of any Credit Partysale, other than inventory conveyance, transfer, lease or other disposition of assets sold to a subsidiary of the Company which is a Guarantor;
(d) the sale or leased, disposition of or cash or cash equivalents disposed of, in each case, other use of inventory in the ordinary course of the Parent's or the Subsidiaries' business. For purposes ;
(e) the collection, liquidation or otherwise disposition of clarification, “Asset Sale” shall Accounts (ias defined in the Security Agreement) include in the ordinary course of the Parent's or the Subsidiaries' business;
(xf) the renegotiation and termination of leasehold interests in the ordinary course of the Parent's or the Subsidiaries' business;
(g) the sale or disposition of obsolete or worn out fixtures and equipment in the ordinary course of the Parent's or the Subsidiaries' business;
(h) the grant of easements and rights of way on Mortgaged Property (as defined in the Security Agreement) or other disposition for real property in the ordinary course of the Parent's or the Subsidiaries' business that do not secure any monetary obligations and do not materially detract from the value of any contracts the affected property or interfere with the ordinary conduct of the business of the Parent and the Subsidiaries;
(yi) the early termination sale or modification disposition of any contract resulting owned real property in an amount not to exceed $10,000,000 during the receipt term of this Indenture; provided, however, that the Net Cash Proceeds from such Asset Sales shall be applied as required by any Credit Party Section 9.02 of a cash payment or other consideration this Indenture; and
(j) Asset Sales not otherwise described in exchange for such event (other than payments this Section 10.11 in the ordinary course of business for accrued and unpaid amounts due through the date of termination or modificationin an amount not to exceed $3,000,000 in any Fiscal Year; provided that no individual Asset Sale made pursuant to this Section 10.11(j) and (ii) exclude any taking or other disposition by means of power of eminent domain, condemnation or similar power, threat or rightshall exceed $2,000,000.
Appears in 2 contracts
Sources: Indenture (Arch Wireless Inc), Indenture (Arch Wireless Inc)
Asset Sales. No later (a) On or after the Escrow Release Date, the Company will not, and will not permit any Restricted Subsidiary to, consummate an Asset Sale, unless:
(i) the Company or such Restricted Subsidiary, as the case may be, receives consideration at the time of such Asset Sale at least equal to the Fair Market Value of the assets sold or otherwise disposed of; and
(ii) 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, is in the form of cash, Cash Equivalents, Replacement Assets or a combination of the foregoing. Within 365 days after the Company’s or any Restricted Subsidiary’s receipt of the Net Proceeds of any Asset Sale, the Company or such Restricted Subsidiary, at its option, may apply an amount equal to the Net Proceeds from such Asset Sale:
(1) to permanently reduce Obligations under Secured Indebtedness, Indebtedness of any Subsidiary and any other Pari Passu Indebtedness and to correspondingly reduce commitments with respect thereto, provided that if the Company shall so reduce Obligations under any other Pari Passu Indebtedness (other than Pari Passu Indebtedness that is Secured Indebtedness), it will equally and ratably reduce Obligations under the first Securities of the applicable series in accordance with the procedures set forth in Article IV, through privately negotiated transactions or open market purchases or by making an offer (in accordance with the procedures set forth in Section 4.07 for an Asset Sale Offer) to all Holders to purchase their Securities of such series in each case at or above 100% of the principal amount thereof, plus the amount of accrued but unpaid interest, if any, on the amount of Securities of such series that would otherwise be prepaid, which offer shall constitute a reduction of the Obligations under the Securities of the applicable series under this provision, whether or not accepted;
(2) to (a) make an investment in any one or more businesses, provided that such investment in any business is in the form of the acquisition of Capital Stock and results in the Company or a Restricted Subsidiary, as the case may be, owning or continuing to own an amount of the Capital Stock of such business such that it constitutes a Restricted Subsidiary, (b) make capital expenditures or (c) acquire other assets (including assets that replace the business, properties and assets that were the subject of the Asset Sale), in each of (a), (b) and (c), engaged, used or useful in a Similar Business;
(3) to retire Securities pursuant to the procedures set forth under Article IV; or
(4) any combination of the foregoing; provided that, in the case of clause (2) above, a binding commitment entered into prior to the end of such 365-day following reinvestment period shall be treated as a permitted application of the Net Proceeds from the date of receiptsuch commitment so long as the Company or such Restricted Subsidiary enters into such commitment with the good faith expectation that such Net Proceeds will be applied to satisfy such commitment (an “Acceptable Commitment”) and, in the event any given monthAcceptable Commitment is later canceled or terminated for any reason before such Net Proceeds are so applied, by Borrower the Company or such Restricted Subsidiary enters into another Acceptable Commitment (a “Replacement Commitment”) within nine months of such cancellation or termination; provided, further, that if any of its Subsidiaries of Replacement Commitment is later canceled or terminated for any reason before such Net Proceeds are applied, then such Net Proceeds shall constitute Excess Proceeds. Any Net Proceeds from an Asset Sale Proceeds (as hereinafter defined) in excess of the aggregate amount of Budgeted Expenses (as defined in Section 15(e) hereof) that are not invested or applied as set forth in the most recent Budget preceding paragraph and within the 365-day reinvestment period will be deemed to constitute “Excess Proceeds.” When the aggregate amount of Excess Proceeds exceeds $100.0 million, the Company shall make an offer to all Holders, and, if required by the terms of any Pari Passu Indebtedness, to the holders of such Pari Passu Indebtedness (as defined an “Asset Sale Offer”), to purchase the maximum principal amount of Securities of each series and such Pari Passu Indebtedness that may be purchased out of the Excess Proceeds at an offer price in Section 15(e)) required to be delivered pursuant to Section 15(e) hereof, Borrower shall prepay the Forbearance Period Advances as set forth in Section 3(i) hereof cash in an aggregate amount equal to such excess amount; provided, that (A) such Net Asset Sale Proceeds shall be deposited directly by the payee thereof into a deposit account held by Borrower at Amegy Bank, N.A. and (B) if, within 30 days of Borrower’s receipt of such Net Asset Sale Proceeds, Borrower has not paid one or more such Budgeted Expenses in an aggregate amount equal to 100% of the principal amount thereof, plus accrued and unpaid interest to, but not including, the date fixed for the closing of such proceeds not otherwise required to prepay offer, in accordance with the Forbearance Period Advances, then Borrower shall prepay the Forbearance Period Advances as procedures set forth in Section 3(i) hereof in 4.07. The Company will commence an amount equal to the amount not so paid. “Net Asset Sale Proceeds” means, Offer with respect to any Excess Proceeds within ten Business Days after the date that Excess Proceeds exceed $100.0 million by mailing the notice required pursuant to the terms of this Indenture, with a copy to the Trustee. To the extent that the aggregate amount of Securities of each series and such Pari Passu Indebtedness tendered pursuant to an Asset Sale Offer is less than the Excess Proceeds, the Company may use any remaining Excess Proceeds for any purpose not otherwise prohibited by this Indenture, subject to other covenants contained in this Indenture. If the aggregate principal amount of Securities of each series or the Pari Passu Indebtedness surrendered by such Holders thereof exceeds the amount of Excess Proceeds, the Trustee shall select the Securities of each series and such Pari Passu Indebtedness to be purchased on a pro rata basis based on the accreted value or principal amount of the Securities of each series or such Pari Passu Indebtedness tendered in accordance with Section 4.07. Upon completion of any such Asset Sale Offer, the amount of Excess Proceeds shall be reset at zero. Pending the final application of any Net Proceeds of Asset Sales, the Company or the applicable Restricted Subsidiary may apply such Net Proceeds temporarily to reduce Indebtedness outstanding under a revolving credit facility or otherwise invest such Net Proceeds in any manner not prohibited by this Indenture.
(b) For purposes of clause (a) of this Section 6.15 only, the following shall be deemed to be Cash Equivalents: (i) any liabilities (as hereinafter defined)shown on the Company’s, an amount equal to: (1or such Restricted Subsidiary’s, most recent balance sheet or in the footnotes thereto) cash payments received of the Company or any Restricted Subsidiary, other than liabilities that are by Borrower their terms subordinated in right of payment to the Securities of the applicable series, that are assumed by the transferee of any such assets and for which the Company and all of its Restricted Subsidiaries have been unconditionally released by all creditors or their representatives in writing or that are discharged by the transferee or a third party in a transaction pursuant to which neither the Company nor any of its Restricted Subsidiaries from has any liability following such Asset Sale, minus (2ii) any bona fide direct costs and expenses incurred in connection with Securities or other obligations or securities or assets received by the Company or such Asset Sale Restricted Subsidiary from such transferee that are converted by the Company or such Restricted Subsidiary into cash or Cash Equivalents (to the extent paid of the cash or payable to non-AffiliatesCash Equivalents received) within 180 days following the closing of such Asset Sale, including (xiii) income or gains taxes payable or reasonably estimated to be payable by the seller as a result Indebtedness of any gain recognized in connection with such Asset Sale during the tax period the sale occurs, (y) payment of the obligations (other than the Loans) secured by Restricted Subsidiary that is no longer a Lien on the assets in question, which is required to be repaid under the terms thereof Restricted Subsidiary as a result of such Asset Sale, to the extent that the Company and (z) a reasonable reserve for each other Restricted Subsidiary are released from any adjustments in respect to sale price guarantee of such assets and any indemnification payments (fixed or contingent) attributable to seller’s indemnities and representations and warranties to purchaser in respect of such Asset Sale undertaken by Borrower or any of its Subsidiaries Indebtedness in connection with such Asset Sale; provided and (iv) 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 (iv) that upon release is at that time in existence, not to exceed an amount equal to the greater of $900.0 million or 3.00% of Total Assets, 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 Company will comply with the requirements of Rule 14e-1 under the Exchange Act and any other securities laws and regulations thereunder to the extent such laws or regulations are applicable in connection with the repurchase of the Securities pursuant to an Asset Sale Offer. To the extent that the provisions of any such reservesecurities laws or regulations conflict with the provisions of this Indenture, the amount released Company will comply with the applicable securities laws and regulations and shall not be considered Net Asset Sale Proceeds). “Asset Sale” means a sale, lease or sublease (as lessor or sublessor), sale and leaseback, assignment, conveyance, transfer, license or other disposition to, or any exchange of property with, any Person (other than deemed to or with a Credit Party), have breached its obligations described in one transaction or a series of transactions, of all or any part of any Credit Party’s businesses, assets or properties of any kind, whether real, personal, or mixed and whether tangible or intangible, whether now owned or hereafter acquired, leased or licensed, including, without limitation, the capital stock of any Credit Party, other than inventory or other assets sold or leased, or cash or cash equivalents disposed of, in each case, in the ordinary course of business. For purposes of clarification, “Asset Sale” shall (i) include (x) the sale or other disposition for value of any contracts or (y) the early termination or modification of any contract resulting in the receipt this Indenture by any Credit Party of a cash payment or other consideration in exchange for such event (other than payments in the ordinary course of business for accrued and unpaid amounts due through the date of termination or modification) and (ii) exclude any taking or other disposition by means of power of eminent domain, condemnation or similar power, threat or rightvirtue thereof.
Appears in 1 contract
Asset Sales. No later (a) The Company shall not, and shall not permit any Restricted Subsidiary to, directly or indirectly, consummate any Asset Sale unless: (i) 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 75% of the total consideration received in such Asset Sale consists of -58- 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 first business day following 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, is unconditionally released by the holder of such Indebtedness, (B) the amount of any obligations received from such transferee that are within 90 days converted by the Company or such Restricted Subsidiary to cash (to the extent of the cash actually so received), and (C) the Fair Market Value of any 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 interest received with respect to any such non-cash consideration), then the date of receiptsuch repayment, conversion or disposition shall be deemed to constitute the date of an Asset Sale hereunder and the Net Available Proceeds thereof shall be applied in accordance with this Section 4.10. If the Company or any given monthRestricted Subsidiary engages in an Asset Sale, by Borrower the Company or such Restricted Subsidiary shall, no later than 365 days following the consummation thereof, apply all or any of its Subsidiaries the Net Available Proceeds therefrom to: (1) repay Senior Debt or Guarantor Senior Debt; (2) repay any Indebtedness which was secured by the assets sold in such Asset Sale; and/or (3) invest all or any part of the Net Available Proceeds thereof in the purchase of assets (other than securities) to be used by the Company or any Restricted Subsidiary in the Permitted Business.
(b) The amount of Net Asset Sale Available Proceeds not applied or invested as provided in Section 4.10 (as hereinafter defineda) in excess of shall constitute "EXCESS PROCEEDS." When the aggregate amount of Budgeted Expenses Excess Proceeds equals or exceeds $10.0 million, the Company 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 or a Guarantor the provisions of which require the Company or such Guarantor to redeem such Indebtedness with the proceeds from any Asset 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 defined follows:
(i) the Company shall (A) make an offer to purchase (a "NET PROCEEDS OFFER") to all Holders in Section 15(e) hereof) as accordance with the procedures set forth in the most recent Budget (as defined in Section 15(e)) required to be delivered pursuant to Section 15(e) hereofthis Agreement, Borrower shall prepay the Forbearance Period Advances as set forth in Section 3(i) hereof in an aggregate amount equal to such excess amount; provided, that (A) such Net Asset Sale Proceeds shall be deposited directly by the payee thereof into a deposit account held by Borrower at Amegy Bank, N.A. and (B) ifredeem (or make an offer to do so) any such other Pari Passu Indebtedness, within 30 days PRO RATA in proportion to the respective principal amounts of Borrower’s receipt the Notes and such other Indebtedness required to be redeemed, the maximum principal amount of Notes and Pari Passu Indebtedness that may be redeemed out of the amount (the "PAYMENT AMOUNT") of such Net Asset Sale Excess Proceeds, Borrower has not paid one or more such Budgeted Expenses ;
(ii) the offer price for the Notes shall be payable in cash in an aggregate amount equal to 100% of the principal amount of the Notes tendered pursuant to a Net Proceeds Offer, plus accrued and unpaid interest thereon, if any, to the date such proceeds not otherwise required to prepay Net Proceeds Offer is consummated (the Forbearance Period Advances"OFFERED PRICE"), then Borrower in accordance with the procedures set forth in this Agreement and the redemption price for such Pari Passu Indebtedness (the "PARI PASSU INDEBTEDNESS PRICE") shall prepay the Forbearance Period Advances be as set forth in Section 3(ithe related documentation governing such Indebtedness;
(iii) hereof in an amount equal if the aggregate Offered Price of Notes validly tendered and not withdrawn by Holders thereof exceeds the PRO RATA portion of the Payment Amount allocable to the Notes, Notes to be purchased will be selected on a PRO RATA basis; and
(iv) upon completion of such Net Proceeds Offer in accordance with the foregoing provisions, the amount not so paid. “Net Asset Sale Proceeds” means, of Excess Proceeds with respect to any which such Net Proceeds Offer was made shall be 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, subject to the provisions of this Agreement.
(d) In the event of the transfer of substantially all (but not all) of the assets of the Company and the Restricted Subsidiaries as an entirety to a Person in a transaction covered by and effected in accordance with Section 5.01 hereof, the successor entity shall be deemed to have sold for cash at Fair Market Value the assets of the Company and the Restricted Subsidiaries not so transferred for purposes of this Section 4.10, and shall comply with the provisions of this Section 4.10 with respect to such deemed sale as if it were an Asset Sale (as hereinafter definedwith such Fair Market Value being deemed to be Net Available Proceeds for such purpose). The Company shall comply with applicable tender offer rules, an amount equal to: (1) cash payments received by Borrower or including the requirements of Rule 14e-1 under the Exchange Act and any of its Subsidiaries from such Asset Sale, minus (2) any bona fide direct costs other applicable laws and expenses incurred regulations in connection with such Asset Sale the purchase of Notes pursuant to a Net Proceeds Offer. To the extent paid or payable to non-Affiliates, including (x) income or gains taxes payable or reasonably estimated to be payable by that the seller as a result provisions of any gain recognized in connection securities laws or regulations conflict with such Asset Sale during the tax period the sale occurs, (y) payment of the obligations (other than the Loans) secured by a Lien on the assets in question, which is required to be repaid under the terms thereof as a result of such Asset Sale, and (z) a reasonable reserve for any adjustments in respect to sale price of such assets and any indemnification payments (fixed or contingent) attributable to seller’s indemnities and representations and warranties to purchaser in respect of such Asset Sale undertaken by Borrower or any of its Subsidiaries in connection with such Asset Sale; provided that upon release of any such reservethis Section 4.10, the amount released Company shall comply with the applicable securities laws and regulations and will not be considered Net Asset Sale Proceeds)deemed to have breached its obligations under this Section 4.10 by virtue of this compliance. “Asset Sale” means a sale, lease or sublease (as lessor or sublessor), sale and leaseback, assignment, conveyance, transfer, license or other disposition to, or any exchange of property with, any Person (other than to or with a Credit Party), in one transaction or a series of transactions, of all or any part of any Credit Party’s businesses, assets or properties of any kind, whether real, personal, or mixed and whether tangible or intangible, whether now owned or hereafter acquired, leased or licensed, including, without limitation, Notwithstanding the capital stock of any Credit Party, other than inventory or other assets sold or leased, or cash or cash equivalents disposed of, in each caseforegoing, in the ordinary course event that the Company consummates an Asset Sale that results in a Change of business. For purposes Control, the provisions of clarification, “Asset Sale” shall (i) include (x) the sale or other disposition for value of any contracts or (y) the early termination or modification of any contract resulting this Section 4.10 will be deemed to be satisfied and complied with in the receipt by any Credit Party event the Company makes a Change of a cash payment Control Offer pursuant to, and otherwise complies with Section 4.15 hereof, or other consideration in exchange for such event (other than payments in elects to redeem the ordinary course of business for accrued and unpaid amounts due through Notes at the date of termination or modification) and (ii) exclude any taking or other disposition by means of power of eminent domain, condemnation or similar power, threat or rightCompany's option as described under Section 3.07 hereof.
Appears in 1 contract
Sources: Indenture (Transmontaigne Inc)
Asset Sales. No later than (a) The Company and Mission shall not, and shall not permit any of the first business day Restricted Subsidiaries to, consummate an Asset Sale unless:
(i) 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;
(ii) 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
(iii) at least 75% of the consideration received in the Asset Sale by the Company or such Restricted Subsidiary is in the form of cash or Cash Equivalents, except to the extent the Company is undertaking a Permitted Asset Swap. For purposes of this provision and the next paragraph, each of the following shall be deemed to be cash:
(A) any liabilities, as shown on the date of receipt, in any given month, by Borrower Company's or any of its the Restricted Subsidiaries' most recent balance sheet, of the Company or any of the Restricted Subsidiaries (other than contingent liabilities and liabilities that are by their terms subordinated to the Notes) that are assumed by the transferee of any Net Asset Sale Proceeds (as hereinafter defined) in excess of the aggregate amount of Budgeted Expenses (as defined in Section 15(e) hereof) as set forth in the most recent Budget (as defined in Section 15(e)) required to be delivered such assets pursuant to Section 15(e) hereof, Borrower shall prepay a customary novation agreement that releases the Forbearance Period Advances as set forth in Section 3(i) hereof in an aggregate amount equal to Company or such excess amountRestricted Subsidiary from further liability; provided, that (A) such Net Asset Sale Proceeds shall be deposited directly by the payee thereof into a deposit account held by Borrower at Amegy Bank, N.A. and and
(B) ifany securities, within 30 days of Borrower’s receipt of such Net Asset Sale Proceeds, Borrower has not paid one notes or more such Budgeted Expenses in an aggregate amount equal to 100% other obligations received by the Company or any of the amount of Restricted Subsidiaries from such proceeds not otherwise required to prepay transferee that are converted by the Forbearance Period AdvancesCompany or such Restricted Subsidiary within 90 days into cash or Cash Equivalents, then Borrower shall prepay the Forbearance Period Advances as set forth in Section 3(i) hereof in an amount equal to the amount extent of the cash received in that conversion. The 75% limitation referred to in clause (iii) above shall not so paid. “Net Asset Sale Proceeds” means, with respect apply to any Asset Sale (as hereinafter defined)in which the cash or Cash Equivalents portion of the consideration received therefrom, an amount determined in accordance with the preceding provision, is equal to: (1) cash payments received by Borrower to or any of its Subsidiaries from such Asset Sale, minus (2) any bona fide direct costs and expenses incurred in connection with greater than what the after-tax proceeds would have been had such Asset Sale complied with the aforementioned 75% limitation. Notwithstanding the foregoing, the Company or any Restricted Subsidiary shall be permitted to the extent paid or payable to non-Affiliates, including (x) income or gains taxes payable or reasonably estimated to be payable by the seller as a result of any gain recognized in connection with such consummate an Asset Sale during without complying with the tax period the sale occurs, (y) payment of the obligations (other than the Loans) secured by a Lien on the assets in question, which is required to be repaid under the terms thereof as a result of such Asset Sale, and (z) a reasonable reserve for any adjustments in respect to sale price of such assets and any indemnification payments (fixed or contingent) attributable to seller’s indemnities and representations and warranties to purchaser in respect of such Asset Sale undertaken by Borrower or any of its Subsidiaries in connection with such Asset Sale; provided that upon release of any such reserve, the amount released shall be considered Net Asset Sale Proceeds). “Asset Sale” means a sale, lease or sublease (as lessor or sublessor), sale and leaseback, assignment, conveyance, transfer, license or other disposition to, or any exchange of property with, any Person (other than to or with a Credit Party), in one transaction or a series of transactions, of all or any part of any Credit Party’s businesses, assets or properties of any kind, whether real, personal, or mixed and whether tangible or intangible, whether now owned or hereafter acquired, leased or licensed, including, without limitation, the capital stock of any Credit Party, other than inventory or other assets sold or leased, or cash or cash equivalents disposed of, in each case, in the ordinary course of business. For purposes of clarification, “Asset Sale” shall (i) include (x) the sale or other disposition for value of any contracts or (y) the early termination or modification of any contract resulting in the receipt by any Credit Party of a cash payment or other consideration in exchange for such event (other than payments in the ordinary course of business for accrued and unpaid amounts due through the date of termination or modification) and (ii) exclude any taking or other disposition by means of power of eminent domain, condemnation or similar power, threat or right.foregoing if:
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Asset Sales. No later than ten (10) Business Days following the first business day following consummation of any Asset Sale by the Surviving Parent, a Borrower or a Restricted Subsidiary pursuant to Sections 7.05(i), 7.05(j) (except to the extent arising from an Investment in a Loan Party) or 7.05(o) that results in the amount of Net Proceeds (as of the date of such receipt) exceeding $10,000,000 (such excess amount, the “Excess Asset Sale Proceeds”), the Borrowers shall make (or cause to be made) a prepayment of the Term Loans in any given month, by Borrower or any an amount equal to the lesser of its Subsidiaries (x) 100% of any Net such Excess Asset Sale Proceeds and (as hereinafter definedy) in excess the aggregate principal amount of the aggregate amount of Budgeted Expenses Term Loans then outstanding (as defined the “Asset Sale Sweep Provision”), if any, in Section 15(eeach case subject to the following:
(i) hereof) as set forth in the most recent Budget (as defined in Section 15(e)) The Borrowers shall not be required to be delivered pursuant make a prepayment with such Excess Asset Sale Proceeds to Section 15(e) hereof, Borrower shall prepay the Forbearance Period Advances as set forth in Section 3(i) hereof in an aggregate amount equal to such excess amount; provided, that extent (A) such Net the Excess Asset Sale Proceeds shall be deposited directly are reinvested in assets that are, in the reasonable business judgment of the Designated Borrower, useful in the business of the Surviving Parent, the Borrowers or some or all of their Restricted Subsidiaries (including by way of any Permitted Acquisition) within 365 days following receipt thereof by the payee thereof into a deposit account held by Surviving Parent, the Designated Borrower at Amegy Bankand/or such Restricted Subsidiary, N.A. and or (B) ifif the Surviving Parent, such Borrower and/or such Restricted Subsidiary, as applicable, has committed in writing to so reinvest such Excess Asset Sale Proceeds during such 365-day period, such Excess Asset Sale Proceeds are so reinvested within 30 180 days after the expiration of such 365-day period, in each case, so long as (x) no Event of Default exists at the time of such reinvestment and (y) with respect to any Excess Asset Sale Proceeds exceeding $10,000,000, prior to the date of any such required prepayment, the Designated Borrower notifies the Administrative Agent in writing of the Surviving Parent’s, such Borrower’s receipt of and/or its Restricted Subsidiary’s intention to reinvest such Net Excess Asset Sale Proceeds; provided that, Borrower has to the extent such Excess Asset Sale Proceeds have not paid one or more such Budgeted Expenses in an aggregate amount equal been so reinvested prior to 100% the expiration of the amount applicable period, the Borrowers shall promptly prepay the outstanding Term Loans after the expiration of such proceeds not otherwise required to prepay the Forbearance Period Advances, then Borrower shall prepay the Forbearance Period Advances as set forth in Section 3(i) hereof period in an amount equal to the amount not so paid. “Net required by the Asset Sale Proceeds” meansSweep Provision where, subject to Section 2.03(b)(iii), the amount of Excess Asset Sale Proceeds for such purposes shall be the amount of Excess Asset Sale Proceeds not reinvested as set forth above; provided, further that, if such Asset Sale includes a Disposition of any Collateral, the assets in which the portion of Excess Asset Sale Proceeds derived from such Collateral are so reinvested as set forth above shall be reinvested in assets of one or more Loan Parties and the applicable Loan Party shall comply with Section 6.16 with respect to such assets as if such assets were acquired on the date of such reinvestment.
(ii) Any prepayment of Loans shall be accompanied by all accrued interest and fees on the amount prepaid including in respect of Eurocurrency Rate Loans any Asset Sale additional amounts required pursuant to Section 3.05.
(as hereinafter defined), iii) The amount of repayments required to be made pursuant to this Section 2.03(b) shall be reduced by an amount equal to: (1) cash payments received by Borrower or to the sum of the amount of any voluntary repayments of its Subsidiaries the Term Loans made with such Net Proceeds from such the relevant Asset Sale, minus (2) any bona fide direct costs and expenses incurred in connection with such Asset Sale to the extent paid or payable to non-Affiliates, including (x) income or gains taxes payable or reasonably estimated to be payable by the seller as a result of any gain recognized in connection with such Asset Sale during the tax period the sale occurs, (y) payment of the obligations (other than the Loans) secured by a Lien on the assets in question, which is required to be repaid under the terms thereof as a result of such Asset Sale, and (z) a reasonable reserve for any adjustments in respect to sale price of such assets and any indemnification payments (fixed or contingent) attributable to seller’s indemnities and representations and warranties to purchaser in respect of such Asset Sale undertaken by Borrower or any of its Subsidiaries in connection with such Asset Sale; provided that upon release of any such reserve, the amount released shall be considered Net Asset Sale Proceeds). “Asset Sale” means a sale, lease or sublease (as lessor or sublessor), sale and leaseback, assignment, conveyance, transfer, license or other disposition to, or any exchange of property with, any Person (other than to or with a Credit Party), in one transaction or a series of transactions, of all or any part of any Credit Party’s businesses, assets or properties of any kind, whether real, personal, or mixed and whether tangible or intangible, whether now owned or hereafter acquired, leased or licensed, including, without limitation, the capital stock of any Credit Party, other than inventory or other assets sold or leased, or cash or cash equivalents disposed of, in each case, in the ordinary course of business. For purposes of clarification, “Asset Sale” shall (i) include (x) the sale or other disposition for value of any contracts or (y) the early termination or modification of any contract resulting in the receipt by any Credit Party of a cash payment or other consideration in exchange for such event (other than payments in the ordinary course of business for accrued and unpaid amounts due through the date of termination or modification) and (ii) exclude any taking or other disposition by means of power of eminent domain, condemnation or similar power, threat or right.
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Asset Sales. No later than (a) The Issuers shall not, and shall not permit any Restricted Subsidiary to, cause or make an Asset Sale of any assets that do not constitute Spectrum Assets, unless:
(1) the first business day following Issuers or such Restricted Subsidiary, as the date case may be, receives consideration at the time of receiptsuch 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;
(2) at least 75% of the consideration therefor received by the Issuers or such Restricted Subsidiary, as the case may be, is in the form of cash, Cash Equivalents or Replacement Assets or a combination of the foregoing;
(3) to the extent that any given monthconsideration received by the Issuers or a Restricted Subsidiary in such Asset Sale constitutes securities or other assets that are of a type or class that constitute Collateral, by Borrower such securities or other assets, including the assets of any Person that becomes a Subsidiary Guarantor as a result of such transaction, are concurrently with their acquisition added to the Collateral securing the Notes in the manner and to the extent required in this Indenture or any of the Security Documents; and
(4) the Net Proceeds from any such Asset Sale of Collateral is paid directly by the purchaser thereof to the Collateral Agent to be held in trust in an Asset Sale Proceeds Account for application in accordance with this Section 1018. Notwithstanding the foregoing provisions of the above paragraph, the Issuers and the Restricted Subsidiaries shall not be required to cause any Net Proceeds to be held in an Asset Sale Proceeds Account in accordance with Section 1018(a)(4) except to the extent the aggregate Net Proceeds from all Asset Sales of Collateral which are not held in an Asset Sale Proceeds Account, or have not been previously applied in accordance with the provisions of the following paragraphs relating to the application of Net Proceeds from Asset Sales of Collateral, exceed $25.0 million. Within 365 days after the Issuers’ or a Restricted Subsidiary’s receipt of the Net Proceeds of any Asset Sale covered by this Section 1018(a), the Issuers or such Restricted Subsidiary, at its Subsidiaries option, may apply the Net Proceeds from such Asset Sale:
(1) to make one or more offers to the Holders of the Notes (and, at the option of the Issuers, the holders of Other Pari Passu Lien Obligations) to purchase Notes (and such Other Pari Passu Lien Obligations) pursuant to and subject to the conditions contained in this Indenture (each, an “Asset Sale Offer”); provided, however, that if the Issuers or such Restricted Subsidiary shall so reduce any Other Pari Passu Lien Obligations, the Issuers shall make an offer to all Holders of Notes to purchase at a purchase price equal to 100% of the principal amount thereof, plus accrued and unpaid interest and additional interest, if any, the pro rata principal amount of the Notes, such offer to be conducted in accordance with the procedures set forth below for an Asset Sale Offer but without any further limitation in amount;
(2) to an investment in (a) any one or more businesses; provided that such investment in any business is in the form of the acquisition of Capital Stock such that it constitutes a Restricted Subsidiary, (b) capital expenditures or (c) acquisitions of other assets, in each of (a), (b) and (c), used or useful in a Similar Business;
(3) to an investment in (a) any one or more businesses; provided that such investment in any business is in the form of the acquisition of Capital Stock such that it constitutes a Restricted Subsidiary, (b) properties or (c) other assets that, in each of (a), (b) and (c), replace the businesses, properties and assets that are the subject of such Asset Sale; or
(4) to the extent such Net Proceeds are not from Asset Sales of Collateral, to permanently reduce Indebtedness of a Restricted Subsidiary that is not a Subsidiary Guarantor, other than Indebtedness owed to the Issuers, a Subsidiary Guarantor or another Restricted Subsidiary. Pending the final application of any Net Proceeds from Asset Sales in accordance with clauses (1) through (4) above that are not required to be held in an Asset Sale Proceeds Account, the Issuers and their Restricted Subsidiaries may temporarily reduce Indebtedness or otherwise apply such Net Proceeds in any manner not prohibited by this Indenture. Any binding commitment to apply Net Proceeds to invest in accordance with clauses (2) or (3) above shall be treated as a permitted application of Net Proceeds so long as the Issuers or such Restricted Subsidiary enters into such commitment with the good faith expectation that such Net Proceeds shall be applied to satisfy such commitment within 180 days of such commitment; provided that if such commitment is later canceled or terminated for any reason such Net Proceeds shall constitute “Excess Proceeds” (as hereinafter defineddefined below). Any Net Proceeds from the Asset Sales covered by this clause (a) that are not invested or applied as provided and within the time period set forth in excess the first sentence of the immediately preceding paragraph shall be deemed to constitute “Excess Proceeds.” When the aggregate amount of Budgeted Expenses (as defined Excess Proceeds exceeds $50.0 million, the Issuers shall, make an Asset Sale Offer to all Holders of the Notes, and, at the Issuers’ option to the holders of any Other Pari Passu Lien Obligations, to purchase the maximum principal amount of Notes and such Other Pari Passu Lien Obligations, that are $2,000 or an integral multiple of $1,000 in Section 15(e) hereof) as set forth excess thereof that may be purchased out of the Excess Proceeds at an offer price in the most recent Budget (as defined in Section 15(e)) required to be delivered pursuant to Section 15(e) hereof, Borrower shall prepay the Forbearance Period Advances as set forth in Section 3(i) hereof cash in an aggregate amount equal to such excess amount; provided, that (A) such Net Asset Sale Proceeds shall be deposited directly by the payee thereof into a deposit account held by Borrower at Amegy Bank, N.A. and (B) if, within 30 days of Borrower’s receipt of such Net Asset Sale Proceeds, Borrower has not paid one or more such Budgeted Expenses in an aggregate amount equal to 100% of the principal amount thereof, plus accrued and unpaid interest, if any, to the date fixed for the closing of such proceeds not otherwise required to prepay offer, in accordance with the Forbearance Period Advances, then Borrower shall prepay the Forbearance Period Advances as procedures set forth in this Indenture. The Issuers shall commence an Asset Sale Offer with respect to Excess Proceeds within ten Business Days after the date that Excess Proceeds exceeds $50.0 million by mailing the notice required pursuant to the terms of this Indenture, with a copy to the Trustee. To the extent that the aggregate amount of Notes and such Other Pari Passu Lien Obligations tendered pursuant to an Asset Sale Offer is less than the Excess Proceeds, the Issuers may use any remaining Excess Proceeds (“Unutilized Excess Proceeds”) for any purpose not prohibited by the terms of this Indenture. If the aggregate principal amount of Notes or the Other Pari Passu Lien Obligations surrendered by such holders thereof exceeds the amount of Excess Proceeds, the Trustee shall select the Notes and the applicable agent or Issuers shall select such Other Pari Passu Lien Obligations to be purchased on a pro rata basis based on the accreted value or principal amount of the Notes or such Other Pari Passu Lien Obligations tendered. Upon completion of any such Asset Sale Offer, the amount of Excess Proceeds shall be reset at zero. After the Issuers or any Restricted Subsidiary has applied the Net Proceeds from any Asset Sale of any Collateral as provided in, and within the time periods required by, this paragraph (a), any Unutilized Excess Proceeds shall be released by the Collateral Agent to the Issuers or such Restricted Subsidiary for use by the Issuers or such Restricted Subsidiary for any purpose not prohibited by the terms of this Indenture.
(b) The Issuers shall not, and shall not permit any Restricted Subsidiary to, directly or indirectly consummate an Asset Sale of Spectrum Assets unless:
(1) the Issuers or such Restricted Subsidiary, as the case may be, receives consideration at the time of such Asset Sale at least equal to the fair market value (as determined in good faith by the Company) of the assets sold or otherwise disposed of;
(2) 100% of the consideration therefor received by the Issuers or such Restricted Subsidiary, as the case may be, is in the form of cash, Cash Equivalents or Replacement Assets or a combination of the foregoing; and
(3) to the extent that any consideration received by the Issuers and the Restricted Subsidiaries in such Asset Sale constitute Replacement Assets such Replacement Assets including the assets of any Person that becomes a Subsidiary Guarantor as a result of such transaction, are concurrently with their acquisition added to the Collateral securing the Notes in the manner and to the extent required in this Indenture or any of the Security Documents. Within five Business Days after any Asset Sale of Spectrum Assets, the Company may designate pursuant to an Officers’ Certificate all or a portion of the Net Proceeds therefrom for reinvestment in the form of Replacement Assets (such Net Proceeds, “Specified Net Proceeds”). Within 365 days after the Issuers’ or a Restricted Subsidiary’s receipt of Specified Net Proceeds, the Issuers or such Restricted Subsidiary may apply such Specified Net Proceeds to purchase Re-placement Assets; provided that during such 365 day period for reinvestments in Replacement Assets such Specified Net Proceeds which are not used to purchase Replacement Assets shall be held in the Asset Sale Proceeds Account and are only permitted to be withdrawn from such Asset Sale Proceeds Account, within such 365 day reinvestment period, to pay the purchase price of any Replacement Assets. Within 180 days after the Issuers’ or a Restricted Subsidiary’s receipt of Net Proceeds from an Asset Sale of Spectrum Assets that are not designated Specified Net Proceeds (“Non-Specified Net Proceeds”), the Issuers or such Restricted Subsidiary, at its option, may apply up to 25% of the Non-Specified Net Proceeds from such Asset Sale of Spectrum Assets:
(1) to make an investment in (a) any one or more businesses; provided that such investment in any business is in the form of the acquisition of Capital Stock of such business such that it constitutes a Restricted Subsidiary, (b) capital expenditures or (c) acquisitions of other assets, in each of (a), (b) and (c), used or useful in a Similar Business; provided, further, that, to the extent such investment is of the type which would constitute Collateral under the Security Documents, such investment is concurrently added to the Collateral securing the Notes in the manner and to the extent required in this Indenture or any of the Security Documents; and/or
(2) to make an investment in (a) any one or more businesses; provided that such investment in any business is in the form of the acquisition of Capital Stock of such business such that it constitutes a Restricted Subsidiary, (b) properties or (c) other assets that, in each of (a), (b) and (c), replace the businesses, properties and assets that are the subject of such Asset Sale; provided, further, that, to the extent such investment is of the type which would constitute Collateral under the Security Documents, such investment is concurrently added to the Collateral securing the Notes in the manner and to the extent required in this Indenture or any of the Security Documents. The remainder of the Non-Specified Net Proceeds from an Asset Sale of Spectrum Assets covered by this Section 3(i1018(b) hereof may be applied, at the option of the Issuers or such Restricted Subsidiary, to purchase Replacement Assets within 180 days after the receipt by the Issuers or such Restricted Subsidiary of the Non-Specified Net Proceeds from such Asset Sale of Spectrum Assets; provided that during such 180 day period for reinvestments in Replacement Assets any such remaining portion of the Non-Specified Net Proceeds from an Asset Sale of Spectrum Assets which are not used to purchase Replacement Assets shall be held in the Asset Sale Proceeds Account and are only permitted to be withdrawn from such Asset Sale Proceeds Account, within such 180 day reinvestment period, to pay the purchase price of any Replacement Assets. Any Net Proceeds from Asset Sales of Spectrum Assets covered by this Section 1018(b) that are not invested or applied as provided and within the time period set forth above shall be deemed to constitute “Excess Spectrum Assets Proceeds.” The Issuers may use Net Proceeds from Asset Sales of Spectrum Assets covered by this clause (b) at any time to, to and when the aggregate amount of Excess Spectrum Assets Proceeds exceeds $50.0 million the Issuers shall, make an offer to all Holders of the Notes, and, at the Issuers’ option, to the holders of any Other Pari Passu Lien Obligations (a “Spectrum Assets Asset Sale Offer”), to purchase the maximum principal amount of Notes and such Other Pari Passu Lien Obligations, that is $2,000 or an integral multiple of $1,000 in excess thereof that may be purchased out of the Excess Spectrum Assets Proceeds at an offer price in cash in an amount equal to 100% of the principal amount not so paidthereof, plus accrued and unpaid interest, if any, to the date fixed for the closing of such offer, in accordance with the procedures set forth in this Indenture. “Net The Issuers shall commence a Spectrum Assets Asset Sale Proceeds” means, Offer with respect to Excess Spectrum Assets Proceeds within ten Business Days after the date that Excess Spectrum Assets Proceeds exceeds $50.0 million by mailing the notice required pursuant to the terms of this Indenture, with a copy to the Trustee. To the extent that the aggregate amount of Notes and such Other Pari Passu Lien Obligations tendered pursuant to a Spectrum Assets Asset Sale Offer is less than the Excess Spectrum Assets Proceeds, the Issuers may use any remaining Excess Spectrum Assets Proceeds (which shall also constitute “Unutilized Spectrum Assets Excess Proceeds”) for any purpose not prohibited by the terms of this Indenture. If the aggregate principal amount of Notes or the Other Pari Passu Lien Obligations surrendered by such holders thereof exceeds the amount of Excess Spectrum Assets Proceeds, the Trustee shall select the Notes and the applicable agent or Issuers shall select such Other Pari Passu Lien Obligations to be purchased on a pro rata basis based on the accreted value or principal amount of the Notes or such Other Pari Passu Lien Obligations tendered. Upon completion of any such Spectrum Assets Asset Sale Offer, the amount of Excess Spectrum Assets Proceeds shall be reset at zero. After the Issuers or any Restricted Subsidiary has applied the Net Proceeds from any Asset Sale of Spectrum Assets as provided in, and within the time periods required by, this clause (b), any Unutilized Spectrum Assets Excess Proceeds shall be released by the Collateral Agent to the Issuers or such Restricted Subsidiary for use by the Issuers or such Restricted Subsidiary for any purpose not prohibited by this Indenture.
(c) For purposes of Section 1018(a) and (b), (i) any liabilities (other than Other Pari Passu Lien Obligations and Indebtedness the repayment of which would constitute a Restricted Payment) (as hereinafter defined)shown on the Issuers’, an amount equal to: or such Restricted Subsidiary’s, most recent balance sheet or in the Notes thereto) of the Issuers or any Restricted Subsidiary that are assumed by the transferee of any such assets and for which the Issuers and all Restricted Subsidiaries have been validly released by all creditors in writing; and (1ii) cash payments any securities or other obligations received by Borrower the Issuers, a Subsidiary Guarantor or any of its Subsidiaries such Restricted Subsidiary from such Asset Sale, minus transferee that are converted by the Issuers or such Restricted Subsidiary into cash or Cash Equivalents (2) any bona fide direct costs and expenses incurred in connection with such Asset Sale to the extent paid or payable to non-Affiliates, including (x) income or gains taxes payable or reasonably estimated to be payable by the seller as a result of any gain recognized in connection with such Asset Sale during the tax period the sale occurs, (y) payment of the obligations (other than cash or Cash Equivalents received) within 180 days following the Loans) secured by a Lien on the assets in question, which is required to be repaid under the terms thereof as a result of such Asset Sale, and (z) a reasonable reserve for any adjustments in respect to sale price of such assets and any indemnification payments (fixed or contingent) attributable to seller’s indemnities and representations and warranties to purchaser in respect closing of such Asset Sale undertaken shall be deemed to be cash or Cash Equivalents.
(d) In addition for purposes of Section 1018(a), any Designated Noncash Consideration received by Borrower the Issuers 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) that is at that time outstanding, not to exceed $200.0 million, with the fair market value of its Subsidiaries 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 or Cash Equivalents.
(e) The Issuers shall comply with the requirements of Rule 14e-1 under the Exchange Act and any other securities laws and regulations thereunder to the extent such laws or regulations are applicable in connection with such Asset Sale; provided that upon release the repurchase of any such reserve, the amount released shall be considered Net Asset Sale Proceeds). “Asset Sale” means a sale, lease or sublease (as lessor or sublessor), sale and leaseback, assignment, conveyance, transfer, license or other disposition to, or any exchange of property with, any Person (other than to or with a Credit Party), in one transaction or a series of transactions, of all or any part of any Credit Party’s businesses, assets or properties of any kind, whether real, personal, or mixed and whether tangible or intangible, whether now owned or hereafter acquired, leased or licensed, including, without limitation, the capital stock of any Credit Party, other than inventory or other assets sold or leased, or cash or cash equivalents disposed of, in each case, in the ordinary course of business. For purposes of clarification, “Asset Sale” shall (i) include (x) the sale or other disposition for value of any contracts or (y) the early termination or modification of any contract resulting in the receipt by any Credit Party of a cash payment or other consideration in exchange for such event (other than payments in the ordinary course of business for accrued and unpaid amounts due through the date of termination or modification) and (ii) exclude any taking or other disposition by means of power of eminent domain, condemnation or similar power, threat or right.Notes pursuant
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Sources: Indenture (Clearwire Corp /DE)
Asset Sales. No later than (a) The Company will not, and will not permit any of its Restricted Subsidiaries to, consummate an Asset Sale unless:
(1) the first business day following Company (or a Restricted Subsidiary, as the case may be) receives consideration at the time of the Asset Sale at least equal to the fair market value (measured as of the date of receiptthe 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 Board of Directors of the Company if the value is $50.0 million or more and evidenced by a resolution of the Board of Directors; and
(3) at least 75% of the aggregate consideration received by the Company and its Restricted Subsidiaries in the Asset Sale is in the form of cash, Cash Equivalents or Replacement Assets. 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 any Restricted Subsidiary’s most recent balance sheet or in the footnotes thereto, or as would be shown on such balance sheet or footnotes if such liability was incurred subsequent to the date of such balance sheet), of the Company or such Restricted Subsidiary (other than contingent liabilities and liabilities that are by their terms contractually subordinated in right of payment to the Notes or any given monthNote Guarantee) that are assumed by the transferee of any such assets pursuant to an agreement that releases the Company or such Subsidiary from further liability, or that are otherwise released or assumed;
(b) any securities, notes or other obligations received by Borrower the Company or any Restricted Subsidiary from such transferee that are, within 210 days after the Asset Sale, converted by the Company or such Subsidiary into cash or Cash Equivalents, to the extent of the cash or Cash Equivalents received in that conversion; and
(c) 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 (c) that is at the time outstanding, not to exceed the greater of (x) $30 million and (y) 1.75% of the Company’s Consolidated Net Tangible Assets at the time of the receipt of such Designated Non-Cash Consideration, with the fair market value of each item of Designated Non-Cash Consideration being measured at the time received and without giving effect to subsequent changes in value.
(b) Within 365 days after the receipt of any Net Proceeds from an Asset Sale other than a Sale of Collateral, the Company or any Restricted Subsidiary may apply such Net Proceeds at its option to any combination of the following:
(1) (i) until the Collateral Release Event, to repay, redeem, repurchase or otherwise retire any ABL Debt, any Pari Passu Debt or the Notes, and, to the extent there is no such secured Indebtedness outstanding, to repay, redeem, repurchase or otherwise retire Senior Debt of Coffeyville Resources or any of its Subsidiaries Subsidiaries; and (ii) subsequent to the Collateral Release Event, to repay, redeem, repurchase or otherwise retire any Senior Debt of the Company or any of its Subsidiaries, including the Notes;
(2) to acquire all or substantially all of the properties or assets of a Person primarily engaged in a Permitted Business if, after giving effect to such acquisition, such Person is or becomes a Restricted Subsidiary of the Company;
(3) to acquire any Capital Stock of a Person operating a Permitted Business, if, after giving effect to such acquisition, such Person operating a Permitted Business is or becomes a Restricted Subsidiary of the Company;
(4) to make capital expenditures in respect of the Company’s or its Restricted Subsidiaries’ Permitted Business or make an Investment in Replacement Assets; or
(5) to acquire other assets that are used or useful in a Permitted Business or make an Investment in assets that will be used or useful in the Company’s business. The requirement of clauses (2) through (5) of this Section 4.11(b) shall be deemed to be satisfied if a bona fide binding contract committing to make the acquisition, purchase, Investment or expenditure referred to therein is entered into by the Company (or any Restricted Subsidiary) within the time period specified in this Section 4.11(b) and such Net Proceeds are subsequently applied in accordance with such contract within six months following the date such agreement is entered into. Pending the final application of any such Net Proceeds, the Company may utilize such Net Proceeds in any manner that is not prohibited by this Indenture.
(c) Within 365 days after the receipt of any Net Proceeds from an Asset Sale that constitutes a Sale of Collateral, the Company (or the Restricted Subsidiary that owned those assets, as the case may be) shall apply those Net Proceeds at its option to any combination of the following:
(1) (i) until the Collateral Release Event, to repay, redeem, repurchase or otherwise retire any ABL Debt or Pari Passu Debt, and (ii) subsequent to the Collateral Release Event, to repay, redeem, repurchase or otherwise retire any secured Indebtedness of the Company or any of its subsidiaries and, to the extent all of such secured indebtedness is repaid, redeemed, repurchased or otherwise retired, to repay, redeem, repurchase or otherwise retire Senior Debt of the Company or any of its Subsidiaries, including the Notes;
(2) to repay any Indebtedness secured by a Permitted Lien on any Collateral that was sold in such Asset Sale;
(3) to make an Investment in other assets or property that would constitute Collateral;
(4) to acquire all or substantially all of the properties or assets of a Person primarily engaged in a Permitted Business if, after giving effect to such acquisition, such Person is or becomes a Guarantor or is merged into or consolidated with the Company or another Guarantor;
(5) to acquire any Capital Stock of a Person operating a Permitted Business if, after giving effect to such acquisition, such Person operating a Permitted Business is or becomes a Guarantor or is merged into or consolidated with the Company or another Guarantor;
(6) to make capital expenditures with respect to assets that constitute Collateral or make an Investment in Replacement Assets; or
(7) to acquire other assets that constitute Collateral and that are used or useful in a Permitted Business. The requirement of clauses (3) through (7) of this Section 4.11(c) hereof shall be deemed to be satisfied if a bona fide binding contract committing to make the acquisition, purchase, Investment or expenditure referred to therein is entered into by the Company (or any Restricted Subsidiary) within the time period specified in the preceding paragraph and such Net Proceeds are subsequently applied in accordance with such contract within six months following the date such agreement is entered into. Pending the final application of any such Net Proceeds, the Company may use such Net Proceeds in any manner that is not prohibited by this Indenture.
(d) Any Net Proceeds from Asset Sales that are not applied or invested as hereinafter definedprovided in Section 4.11(b) or Section 4.11(c) hereof will constitute “Excess Proceeds” (it being understood that any portion of such Net Proceeds used to make an offer to purchase notes as described in excess of Sections 4.11(b)(1) and 4.11(c)(1) shall be deemed to have been invested whether or not such offer is accepted).
(e) Within 10 business days after the aggregate amount of Budgeted Expenses Excess Proceeds exceeds $25.0 million (as defined in Section 15(eor, at the Company’s option, on any earlier date or for any lesser amount), the Company will make an offer (the “Asset Sale Offer”) hereof) as to all Holders of Notes and all holders of other Pari Passu Debt containing provisions similar to those set forth in this Indenture with respect to offers to purchase, prepay or redeem with the most recent Budget proceeds of sales of assets, to purchase, prepay or redeem the maximum principal amount of notes and such other Pari Passu Debt (as defined plus all accrued interest on the Indebtedness and the amount of all fees and expenses, including premiums, incurred in Section 15(e)connection therewith) required to that may be delivered pursuant to Section 15(e) hereofpurchased, Borrower shall prepay prepaid or redeemed out of the Forbearance Period Advances as set forth Excess Proceeds. The offer price in Section 3(i) hereof in an aggregate amount equal to such excess amount; provided, that (A) such Net any Asset Sale Proceeds shall Offer will be deposited directly by the payee thereof into a deposit account held by Borrower at Amegy Bank, N.A. and (B) if, within 30 days of Borrower’s receipt of such Net Asset Sale Proceeds, Borrower has not paid one or more such Budgeted Expenses in an aggregate amount equal to 100% of the principal amount plus accrued and unpaid interest, if any, to the date of settlement, subject to the right of Holders of record on the relevant record date to receive interest due on an interest payment date that is on or prior to the date of settlement, and will be payable in cash. If any Excess Proceeds remain after the consummation of an Asset Sale Offer, the Company or any Restricted Subsidiary may use those Excess Proceeds for any purpose not otherwise prohibited by this Indenture. If the aggregate principal amount of Notes and other Pari Passu Debt tendered into such proceeds not otherwise Asset Sale Offer exceeds the amount of Excess Proceeds, the Trustee will select the Notes and the Trustee or agent for such other Pari Passu Debt shall select such Pari Passu Debt to be purchased on a pro rata basis (except that any Notes represented by a note in global form will be selected by such method as DTC or its nominee or successor may require or, where such nominee or successor is the Trustee, a method that most nearly approximates pro rata selection as the Trustee deems fair and appropriate) but with such adjustments as necessary so that no Notes or other Pari Passu Debt is purchased in part in an authorized denomination, based on the amounts tendered or required to prepay be prepaid or redeemed. Upon completion of each Asset Sale Offer, the Forbearance Period Advances, then Borrower shall prepay amount of Excess Proceeds will be reset at zero.
(f) The Company will comply with the Forbearance Period Advances as set forth in Section 3(i) hereof in an amount equal requirements of Rule 14e-1 under the Exchange Act and any other securities laws and regulations thereunder to the amount not so paid. “Net Asset Sale Proceeds” means, with respect to any Asset Sale (as hereinafter defined), an amount equal to: (1) cash payments received by Borrower or any of its Subsidiaries from such Asset Sale, minus (2) any bona fide direct costs extent those laws and expenses incurred regulations are applicable in connection with such each repurchase of Notes pursuant to an Asset Sale to Offer. To the extent paid or payable to non-Affiliates, including (x) income or gains taxes payable or reasonably estimated to be payable by that the seller as a result provisions of any gain recognized securities laws or regulations conflict with the provisions of Section 3.09 hereof or this Section 4.11, the Company will comply with the applicable securities laws and regulations and will not be deemed to have breached its obligations under Section 3.09 hereof or this Section 4.11 by virtue of such compliance
(g) For avoidance of doubt, nothing in connection with such Asset Sale during this Indenture or in the tax period security documents prohibits the sale occurs, (y) payment by Coffeyville Resources of common units representing limited partner interests which it holds in CVR Partners. To the extent that any Capital Stock of CVR Partners constitutes a portion of the obligations (Collateral for the Notes, such Collateral will be automatically released, without any action of any party, upon the sale, disposition or other than the Loans) secured transfer by a Lien on the assets in question, which is required to be repaid under the terms thereof as a result Coffeyville Resources of such Asset Sale, and (z) a reasonable reserve for any adjustments in respect to sale price of such assets and any indemnification payments (fixed or contingent) attributable to seller’s indemnities and representations and warranties to purchaser in respect of such Asset Sale undertaken by Borrower or any of its Subsidiaries in connection with such Asset Sale; provided that upon release of any such reserve, the amount released shall be considered Net Asset Sale Proceeds). “Asset Sale” means a sale, lease or sublease (as lessor or sublessor), sale and leaseback, assignment, conveyance, transfer, license or other disposition to, or any exchange of property with, any Person (other than to or with a Credit Party), in one transaction or a series of transactions, of all or any part of any Credit Party’s businesses, assets or properties of any kind, whether real, personal, or mixed and whether tangible or intangible, whether now owned or hereafter acquired, leased or licensed, including, without limitation, the capital stock of any Credit Party, other than inventory or other assets sold or leased, or cash or cash equivalents disposed of, in each case, in the ordinary course of business. For purposes of clarification, “Asset Sale” shall (i) include (x) the sale or other disposition for value of any contracts or (y) the early termination or modification of any contract resulting in the receipt by any Credit Party of a cash payment or other consideration in exchange for such event (other than payments in the ordinary course of business for accrued and unpaid amounts due through the date of termination or modification) and (ii) exclude any taking or other disposition by means of power of eminent domain, condemnation or similar power, threat or rightCapital Stock.
Appears in 1 contract
Sources: Indenture (CVR Energy Inc)
Asset Sales. No later than the first business day following the date of receipt(a) The Company shall not, in any given month, by Borrower or and shall not permit any of its Restricted Subsidiaries of any Net to, consummate an Asset Sale unless:
(1) the Company or the applicable Restricted Subsidiary, as the case may be, receives consideration at the time of such Asset Sale at least equal to the fair market value of the assets sold or otherwise disposed of; and
(2) at least 75% (provided, however, that with respect to Asset Sales of assets or property that constitutes Collateral, 85%) of the consideration received (net of disposal costs) at the time of such Asset Sale by the Company or the Restricted Subsidiary, as the case may be, from such Asset Sale shall be in the form of cash or Cash Equivalents.
(b) The Company may apply, or cause such Restricted Subsidiary to apply, the Net Cash Proceeds relating to each Asset Sale within 365 days (or earlier, at the Company's option) of receipt thereof either:
(1) to the extent such Asset Sale is of assets or property that constitute Revolving Collateral, to repay Indebtedness under the Revolving Credit Facility and permanently reduce a corresponding amount of the availability under the Revolving Credit Facility;
(2) to make an investment in properties and assets that replace the properties and assets that were the subject of such Asset Sale or in properties and assets (including Capital Stock) that will be used in the business of the Company and its Restricted Subsidiaries as hereinafter definedexisting on the Closing Date or in businesses reasonably related, ancillary, incidental or complementary thereto ("REPLACEMENT ASSETS"), provided that to the extent such Net Cash Proceeds were received from an Asset Sale of assets or property that constituted Collateral, such Replacement Assets so acquired shall be owned by the Company (or such Restricted Subsidiary) and shall not be subject to any Liens other than Permitted Collateral Liens and the Company (or such Restricted Subsidiary) shall execute and deliver to the Administrative Agent such Security Documents or other instruments as shall be reasonably necessary to cause such property or assets to become Collateral subject to the Lien of the applicable Security Documents; or
(3) a combination of prepayment and investment permitted by the foregoing clauses (1) and (2), as applicable; provided, further, that if the property subject to such Asset Sale constituted Collateral, then all property purchased with the Cash Proceeds thereof pursuant to this Section 6.13(b) shall be made subject to the Lien of the applicable Security Documents in favor of the Collateral Agent, for its benefit and for the benefit of the other Secured Parties in accordance with Sections 5.11 and 5.12.
(c) Pending the final application of the Net Cash Proceeds, the Company or such Restricted Subsidiary may temporarily reduce Indebtedness under the Revolving Credit Facility or otherwise invest such Net Cash Proceeds in any manner that is not prohibited by this Agreement; except, however, that the Net Cash Proceeds in excess of $5.0 million from Asset Sales of assets or property that constituted First Lien Collateral shall be deposited in the Collateral Account pending application of such Net Cash Proceeds. Any such Net Cash Proceeds so deposited shall be promptly disbursed by the Collateral Agent upon notice from the Company so that the Company may apply such Net Cash Proceeds in accordance with the provisions of this Section 6.13.
(d) Any Net Cash Proceeds from Asset Sales not applied within 365 days (or earlier, at the Company's option) in accordance with clause (b) above and not applied toward a mandatory repayment of First Lien Obligations in accordance with the provisions of Section 2.5(a)(ii)(I) of the Fist Lien Credit Agreement within the time frame set forth therein for such prepayment shall constitute "EXCESS PROCEEDS." When the aggregate amount of Budgeted Expenses (as defined in Section 15(e) hereof) as set forth in the most recent Budget (as defined in Section 15(e)) required to Excess Proceeds exceeds $2.0 million, such Excess Proceeds shall be delivered pursuant to Section 15(e) hereof, Borrower shall prepay the Forbearance Period Advances applied as set forth in Section 3(i) hereof in an aggregate amount equal to such excess amount; provided, that (A) such Net Asset Sale Proceeds shall be deposited directly by the payee thereof into a deposit account held by Borrower at Amegy Bank, N.A. and (B) if, within 30 days of Borrower’s receipt of such Net Asset Sale Proceeds, Borrower has not paid one or more such Budgeted Expenses in an aggregate amount equal to 100% 2.5(a)(ii)(I). Upon completion of the amount of such proceeds not otherwise required to prepay the Forbearance Period Advances, then Borrower shall prepay the Forbearance Period Advances as repayment offer set forth in Section 3(i) hereof in an amount equal to 2.5(a)(ii)(I), the amount not so paid. “Net of Excess Proceeds will be deemed to have been reset to zero.
(e) To the extent any Collateral is the subject of an Asset Sale Proceeds” meanspermitted under this Section 6.13 or is otherwise sold or disposed of in a manner not prohibited by this Agreement, with respect to any Asset Sale the Collateral so sold or otherwise disposed of shall be so sold or disposed of free and clear of the Liens granted or created by the Security Documents, and the Agents shall take all actions they deem appropriate (as hereinafter defined), an amount equal to: (1) cash payments received by Borrower or any of its Subsidiaries from such Asset Sale, minus (2) any bona fide direct costs and expenses incurred in connection with such Asset Sale to the extent paid or payable to non-Affiliates, including (x) income or gains taxes payable or reasonably estimated to be payable requested by the seller as a result of any gain recognized Company in connection with such Asset Sale during writing) in order to effect the tax period the sale occurs, (y) payment of the obligations (other than the Loans) secured by a Lien on the assets in question, which is required to be repaid under the terms thereof as a result of such Asset Sale, and (z) a reasonable reserve for any adjustments in respect to sale price of such assets and any indemnification payments (fixed or contingent) attributable to seller’s indemnities and representations and warranties to purchaser in respect of such Asset Sale undertaken by Borrower or any of its Subsidiaries in connection with such Asset Sale; provided that upon release of any such reserve, the amount released shall be considered Net Asset Sale Proceeds). “Asset Sale” means a sale, lease or sublease (as lessor or sublessor), sale and leaseback, assignment, conveyance, transfer, license or other disposition to, or any exchange of property with, any Person (other than to or with a Credit Party), in one transaction or a series of transactions, of all or any part of any Credit Party’s businesses, assets or properties of any kind, whether real, personal, or mixed and whether tangible or intangible, whether now owned or hereafter acquired, leased or licensed, including, without limitation, the capital stock of any Credit Party, other than inventory or other assets sold or leased, or cash or cash equivalents disposed of, in each case, in the ordinary course of business. For purposes of clarification, “Asset Sale” shall (i) include (x) the sale or other disposition for value of any contracts or (y) the early termination or modification of any contract resulting in the receipt by any Credit Party of a cash payment or other consideration in exchange for such event (other than payments in the ordinary course of business for accrued and unpaid amounts due through the date of termination or modification) and (ii) exclude any taking or other disposition by means of power of eminent domain, condemnation or similar power, threat or rightforegoing.
Appears in 1 contract
Asset Sales. No later than the first business day tenth (10th) Business Day following the date of receipt, in receipt by any given month, by Borrower Credit Party or any of its Subsidiaries of any Net Asset Sale Proceeds (as hereinafter defined) in excess of the aggregate amount of Budgeted Expenses (as defined in Section 15(e) hereof) as set forth in the most recent Budget (as defined in Section 15(e)) required to be delivered pursuant to Section 15(e) hereof, Borrower shall prepay the Forbearance Period Advances as set forth in Section 3(i) hereof in an aggregate amount equal to such excess amount; provided, it being understood that (A) such Net Asset Sale Proceeds shall be deposited directly by the payee thereof into a deposit account held by Borrower at Amegy BankControlled Account on the same Business Day as receipt thereof), N.A. and (Bthe Company shall prepay the Loans as set forth in Section 2.14(b) if, within 30 days of Borrower’s receipt of such Net Asset Sale Proceeds, Borrower has not paid one or more such Budgeted Expenses in an aggregate amount equal to one hundred percent (100%) of such Net Asset Sale Proceeds plus any amount due pursuant to Sections 2.10(a) and (b) (such amounts, the “Asset Sale Reinvestment Amounts”); provided, that no such prepayment shall be required under this Section 2.13(a) to the extent the (a) Net Asset Sale Proceeds of any individual Asset Sale or series of related Asset Sales does not exceed $2,000,000 and (b) aggregate Net Asset Sale Proceeds received by any Credit Party and/or any of its Subsidiaries from the Closing Date through the applicable date of determination does not exceed $5,000,000 (and then, in each case, only the amount in excess thereof shall be required to be paid); and provided, further, that, so long as no Default or Event of Default shall have occurred and be continuing, the Company shall have the option, directly or through one or more of its Subsidiaries that are Credit Parties, to invest (i) with respect to Asset Sale Reinvestment Amounts from Assets Sales other than Specified Assets Sales (A) 100% of such Asset Sale Reinvestment Amounts up to an aggregate amount less than $30,000,000 and (B) to the amount extent that such Asset Sale Reinvestment Amounts equal $30,000,000 or more, 60% of such proceeds Asset Sale Reinvestment Amounts, and (ii) with respect to Asset Sale Reinvestment Amounts from Specified Asset Sales, 50% of such Asset Sale Reinvestment Amounts, in each case within three hundred sixty-five (365) days of receipt thereof (the “Asset Sale Reinvestment Period”) in the costs of research, development, commercialization, license, purchase, or other acquisition or investment of or in other assets of the general type used or useful in the business of the Company and its Subsidiaries. In the event that Asset Sale Reinvestment Amounts are not otherwise required reinvested by Company prior to prepay the Forbearance Period Advancesexpiration of the applicable Asset Sale Reinvestment Period, then Borrower the Company shall prepay the Forbearance Period Advances Loans as set forth in Section 3(i2.14(b) hereof in an aggregate amount equal to the amount not so paid. “Net one hundred percent (100%) of such unreinvested Asset Sale Proceeds” meansReinvestment Amounts plus any amount due pursuant to Sections 2.10(a) and (b). If at any time an Event of Default has occurred and is continuing, with respect to any then all unreinvested Asset Sale Reinvestment Amounts shall be used to prepay the Loans (as hereinafter defined), an including any amount equal to: owing under Sections 2.10(a) and (1b) cash payments received by Borrower or any of its Subsidiaries from such Asset Sale, minus (2) any bona fide direct costs and expenses incurred in connection with such Asset Sale to the extent paid or payable to non-Affiliates, including (xprepayment) income or gains taxes payable or reasonably estimated to be payable by the seller as a result of immediately and without any gain recognized in connection with such Asset Sale during the tax period the sale occurs, (y) payment of the obligations (other than the Loans) secured by a Lien on the assets in question, which is required to be repaid under the terms thereof as a result of such Asset Sale, and (z) a reasonable reserve for any adjustments in respect to sale price of such assets and any indemnification payments (fixed or contingent) attributable to seller’s indemnities and representations and warranties to purchaser in respect of such Asset Sale undertaken by Borrower or any of its Subsidiaries in connection with such Asset Sale; provided that upon release of any such reserve, the amount released shall be considered Net Asset Sale Proceeds). “Asset Sale” means a sale, lease or sublease (as lessor or sublessor), sale and leaseback, assignment, conveyance, transfer, license or other disposition to, or any exchange of property with, any Person (other than to or with a Credit Party), in one transaction or a series of transactions, of all or any part of any Credit Party’s businesses, assets or properties of any kind, whether real, personal, or mixed and whether tangible or intangible, whether now owned or hereafter acquired, leased or licensed, including, without limitation, the capital stock of any Credit Party, other than inventory or other assets sold or leased, or cash or cash equivalents disposed of, in each case, in the ordinary course of business. For purposes of clarification, “Asset Sale” shall (i) include (x) the sale or other disposition for value of any contracts or (y) the early termination or modification of any contract resulting in the receipt by any Credit Party of a cash payment or other consideration in exchange for such event (other than payments in the ordinary course of business for accrued and unpaid amounts due through the date of termination or modification) and (ii) exclude any taking or other disposition by means of power of eminent domain, condemnation or similar power, threat or rightdemand.
Appears in 1 contract
Sources: Credit and Guaranty Agreement (Karyopharm Therapeutics Inc.)
Asset Sales. No later The Company shall not, and shall not permit any of its Restricted Subsidiaries to, consummate an Asset Sale unless (i) the Company (or the Restricted Subsidiary, as the case may be) receives consideration at the time of such Asset Sale at least equal to the fair market value as determined in good faith by the Company (evidenced by a resolution of the Board of Directors set forth in an Officer's Certificate delivered to the Senior Subordinated Note Trustee with respect to any Asset Sale determined to have a value greater that $25.0 million) of the assets or Equity Interests issued or sold or otherwise disposed of and (ii) at least 75% of the consideration therefor received by the Company or such Subsidiary is in the form of cash, Cash Equivalents or Marketable Securities; provided that the following amounts shall be deemed to be cash: (w) 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 first business day Senior Subordinated Notes or any 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, (x) any securities, notes or other obligations received by the Company or any such Restricted Subsidiary from such transferee that are converted by the Company or such Restricted Subsidiary into cash within 180 days following the date closing of receiptsuch Asset Sale (to the extent of the cash received), in (y) any given month, Designated Noncash Consideration received by Borrower the Company or any of its Restricted Subsidiaries in such Asset Sale; provided that the aggregate fair market value (as determined above) of such Designated Noncash Consideration, taken together with the fair market value at the time of receipt of all other Designated Noncash Consideration received pursuant to this clause (y) less the amount of Net Proceeds previously realized in cash from prior Designated Noncash Consideration is less than 5% 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) and (z) Additional Assets received in an exchange of assets transaction. Within 360 days after the receipt of any cash Net Proceeds from an Asset Sale, the Company or such Restricted Subsidiary, at its option, may apply such cash Net Proceeds, at its option, (a) to repay Senior Debt of the Company or any Restricted Subsidiary including, without limitation, Indebtedness under a Credit Facility and the Senior Notes, (b) to the acquisition of a majority of the assets of, or a majority of the Voting Stock of, another Permitted Business, the making of a capital expenditure or the acquisition of other assets or Investments that are used or useful in a Permitted Business or (c) to apply the cash Net Proceeds from such Asset Sale to an Investment in Additional Assets. Any cash Net Proceeds (from Asset Sales that are not applied or invested as hereinafter defined) provided in excess the first sentence of this paragraph will be deemed to constitute "Excess Proceeds." When the aggregate amount of Budgeted Expenses (as defined in Section 15(e) hereof) as Excess Proceeds exceeds $15.0 million, the Company shall be required to make an offer to all Holders of Senior Subordinated Notes and all holders of other Indebtedness that is not Senior Debt containing provisions similar to those set forth herein with respect to offers to purchase or redeem with the proceeds of sales of assets (an "Asset Sale Offer") to purchase the maximum principal amount of Senior Subordinated Notes and such other Indebtedness that may be purchased out of the Excess Proceeds, at an offer price in the most recent Budget (as defined in Section 15(e)) required to be delivered pursuant to Section 15(e) hereof, Borrower shall prepay the Forbearance Period Advances as set forth in Section 3(i) hereof cash in an aggregate amount equal to such excess amount; provided, that (A) such Net Asset Sale Proceeds shall be deposited directly by the payee thereof into a deposit account held by Borrower at Amegy Bank, N.A. and (B) if, within 30 days of Borrower’s receipt of such Net Asset Sale Proceeds, Borrower has not paid one or more such Budgeted Expenses in an aggregate amount equal to 100% of the principal amount thereof plus accrued and unpaid interest and Liquidated Damages thereon, if any, to the date of purchase, in accordance with the procedures set forth herein and such other Indebtedness. To the extent that any Excess Proceeds remain after consummation of an Asset Sale Offer, the Company may use such Excess Proceeds for any purpose not otherwise prohibited by this Senior Subordinated Note Indenture. If the aggregate principal amount of Senior Subordinated Notes and such proceeds not otherwise required to prepay the Forbearance Period Advances, then Borrower shall prepay the Forbearance Period Advances as set forth in Section 3(i) hereof in an amount equal to the amount not so paid. “Net Asset Sale Proceeds” means, with respect to any Asset Sale (as hereinafter defined), an amount equal to: (1) cash payments received by Borrower or any of its Subsidiaries from such Asset Sale, minus (2) any bona fide direct costs and expenses incurred in connection with other Indebtedness tendered into such Asset Sale to Offer surrendered by Holders thereof exceeds the extent paid or payable to non-Affiliatesamount of Excess Proceeds, including (x) income or gains taxes payable or reasonably estimated the Senior Subordinated Note Trustee shall select the Senior Subordinated Notes and such other Indebtedness to be payable by the seller as purchased on a result of any gain recognized in connection with such Asset Sale during the tax period the sale occurs, (y) payment of the obligations (other than the Loans) secured by a Lien on the assets in question, which is required to be repaid under the terms thereof as a result pro rata basis. Upon completion of such Asset Sale, and (z) a reasonable reserve for any adjustments in respect offer to sale price of such assets and any indemnification payments (fixed or contingent) attributable to seller’s indemnities and representations and warranties to purchaser in respect of such Asset Sale undertaken by Borrower or any of its Subsidiaries in connection with such Asset Sale; provided that upon release of any such reservepurchase, the amount released of Excess Proceeds shall be considered Net Asset Sale Proceeds). “Asset Sale” means a sale, lease or sublease (as lessor or sublessor), sale and leaseback, assignment, conveyance, transfer, license or other disposition to, or any exchange of property with, any Person (other than to or with a Credit Party), in one transaction or a series of transactions, of all or any part of any Credit Party’s businesses, assets or properties of any kind, whether real, personal, or mixed and whether tangible or intangible, whether now owned or hereafter acquired, leased or licensed, including, without limitation, the capital stock of any Credit Party, other than inventory or other assets sold or leased, or cash or cash equivalents disposed of, in each case, in the ordinary course of business. For purposes of clarification, “Asset Sale” shall (i) include (x) the sale or other disposition for value of any contracts or (y) the early termination or modification of any contract resulting in the receipt by any Credit Party of a cash payment or other consideration in exchange for such event (other than payments in the ordinary course of business for accrued and unpaid amounts due through the date of termination or modification) and (ii) exclude any taking or other disposition by means of power of eminent domain, condemnation or similar power, threat or rightreset at zero.
Appears in 1 contract
Sources: Senior Subordinated Note Indenture (P&l Coal Holdings Corp)
Asset Sales. No later than The Company will not, and will not permit any of its Material Subsidiaries to, consummate an Asset Sale unless:
(1) the first business day following Company (or a Material Subsidiary, as the case may be) receives consideration at the time of such Asset Sale at least equal to the Fair Market Value (measured as of the date of receiptthe definitive agreement with respect to such Asset Sale) of the assets or Equity Interests issued or sold or otherwise disposed of; and
(2) at least 75% of the aggregate consideration received in respect of such Asset Sale by the Company and its Material Subsidiaries and all other Asset Sales since the Issue Date is in the form of cash or Cash Equivalents (or a combination thereof) but excluding cash held in escrow; provided that, in for purposes of this provision, each of the following will be deemed to be cash:
(a) any given monthliabilities, by Borrower as shown on the Company’s most recent consolidated balance sheet, of the Company or any Material Subsidiary (other than contingent liabilities, Subordinated Debt and any obligations in respect of its Subsidiaries 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 full release or indemnity of the Company or such Material Subsidiary from any and all liability therefor;
(b) any securities, notes or other obligations received by the Company or any such Material Subsidiary from such transferee that are converted by the Company or such Material Subsidiary into cash 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 Asset Sale of oil and gas properties by the 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 Sale 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 Sale, Hedge Monetization or Casualty Event, the Company (or the applicable Material Subsidiary, as the case may be) may apply such Net Proceeds, Hedge Receipts and/or Net Insurance/Condemnation Proceeds, at its option:
(1) to repay, prepay, redeem or purchase (x) Debt and other obligations under the Bank Facility incurred under clause (1) of the definition of Permitted Debt or any Second Lien Notes (provided that any such repayment, prepayment, redemption or purchase of the Second Lien Notes shall be made first, in respect of “New Money Notes” under and as defined in the Second Lien Notes Indenture on a pro rata basis based on the aggregate principal amount of all outstanding “New Money Notes” thereunder, and second, to in respect of “Exchange Notes” under and defined in the Second Lien Notes Indenture on a pro rata basis based on the aggregate principal amount of all outstanding “Exchange Notes” thereunder; provided that, any such action shall be accompanied by a reduction of the related commitments or facility amount, or (y) any Debt and other obligations that were secured by the assets sold in such Asset Sale, subject to such 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 invest in Additional Assets; or
(3) to make capital expenditures in respect of the Oil and Gas Business; However, pending application or investment of such Net Proceeds, Hedge Receipts and/or Net Insurance/Condemnation Proceeds as provided in clauses (1) through (3) of the immediately preceding paragraph, such Net Proceeds, Hedge Receipts and/or Net Insurance/Condemnation Proceeds may be applied to temporarily reduce revolving credit indebtedness or otherwise invested in any manner that is not prohibited by this Indenture. Any Net Proceeds, Hedge Receipts and/or Net Insurance/Condemnation Proceeds that are not applied or invested as hereinafter definedprovided in clauses (1) in excess of through (3) above will constitute “Excess Proceeds.” Within ten (10) Business Days after the aggregate amount of Budgeted Expenses Excess Proceeds exceeds $10.0 million, the Company will make an offer (as defined a “Specified Offer”) to all Holders of Notes to purchase the maximum principal amount of Notes that may be purchased out of the Excess Proceeds. The offer price for the Notes in Section 15(e) hereof) as set forth in the most recent Budget (as defined in Section 15(e)) required to any Specified Offer will be delivered pursuant to Section 15(e) hereof, Borrower shall prepay the Forbearance Period Advances as set forth in Section 3(i) hereof in an aggregate amount equal to such excess amount; provided, that (A) such Net Asset Sale Proceeds shall be deposited directly by the payee thereof into a deposit account held by Borrower at Amegy Bank, N.A. and (B) if, within 30 days of Borrower’s receipt of such Net Asset Sale Proceeds, Borrower has not paid one or more such Budgeted Expenses in an aggregate amount equal to 100% of the principal amount plus accrued and unpaid interest, if any, to but excluding the date of purchase, and will be payable in cash. If any Excess Proceeds remain after consummation of 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 tendered exceeds the amount of Excess Proceeds, the Notes shall be repurchased a pro rata basis based on the aggregate principal amount of Notes tendered by the holders thereof. Upon completion of each 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 1014. The Company will comply with the requirements of Rule 14e-1 under the Exchange Act and any other securities laws and regulations to the extent those laws and regulations are applicable in connection with each repurchase of Notes pursuant to a Specified Offer. To the extent that the provisions of any such proceeds securities laws or regulations conflict with this Section 1014, or compliance with this Section 1014 would constitute a violation of any such securities laws or regulations, the Company will comply with the applicable securities laws or regulations and will not otherwise be deemed to have breached its obligations under this Section 1014 by virtue of such compliance. In the event that, pursuant to this Section 1014, the Company is required to prepay commence a Specified Offer, it will follow the Forbearance Period Advances, then Borrower shall prepay the Forbearance Period Advances as set forth in Section 3(i) hereof in an amount equal to the amount not so paid. “Net Asset Sale Proceeds” means, with respect to any Asset Sale (as hereinafter defined), an amount equal to: procedures specified below:
(1) cash 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 received by Borrower are made at Stated Maturity or any of its Subsidiaries from such Asset Sale, minus 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 bona fide direct costs accrued and expenses incurred unpaid interest will be paid to the Person in connection 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 1014 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 Notes on a pro rata basis based on the principal amount of Notes (with such Asset Sale to the extent paid or payable to non-Affiliates, including (x) income or gains taxes payable or reasonably estimated to adjustments as may be payable deemed appropriate by the seller as a result Company so that only Notes in minimum denominations of any gain recognized in connection with such Asset Sale during the tax period the sale occurs, (y) payment of the obligations (other than the Loans) secured by a Lien on the assets in question, which is required to be repaid under the terms thereof as a result of such Asset Sale, and (z) a reasonable reserve for any adjustments in respect to sale price of such assets and any indemnification payments (fixed or contingent) attributable to seller’s indemnities and representations and warranties to purchaser in respect of such Asset Sale undertaken by Borrower or any of its Subsidiaries in connection with such Asset Sale; provided that upon release of any such reserve, the amount released shall be considered Net Asset Sale Proceeds). “Asset Sale” means a sale, lease or sublease (as lessor or sublessor), sale and leaseback, assignment, conveyance, transfer, license or other disposition toU.S.$1,000, or any exchange an integral multiple of property withU.S.$1,000 in excess of U.S.$1,000, any Person (other than to or with a Credit Partywill be purchased), in one transaction or a series of transactions, of all or any part of any Credit Party’s businesses, assets or properties of any kind, whether real, personal, or mixed and whether tangible or intangible, whether now owned or hereafter acquired, leased or licensed, including, without limitation, the capital stock of any Credit Party, other than inventory or other assets sold or leased, or cash or cash equivalents disposed of, in each case, in the ordinary course of business. For purposes of clarification, “Asset Sale” shall ; and
(i) include 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 (x) the sale or other disposition for value transferred by book-entry transfer), which unpurchased portion must be equal to U.S.$1,000 in principal amount or an integral multiple of any contracts or (y) the early termination or modification U.S.$1,000 in excess of any contract resulting in the receipt by any Credit Party of a cash payment or other consideration in exchange for such event (other than payments in the ordinary course of business for accrued and unpaid amounts due through the date of termination or modification) and (ii) exclude any taking or other disposition by means of power of eminent domain, condemnation or similar power, threat or rightU.S.$1,000.
Appears in 1 contract
Asset Sales. No Not later than the first business day second Business Day following the date receipt of receiptNet Cash Proceeds in respect of any Asset Sale, subject to the terms of the Intercreditor Agreement the Borrower shall deliver an offer to the Administrative Agent which, in any given monthturn, by Borrower or any of its Subsidiaries of any Net Asset Sale Proceeds (as hereinafter defined) in excess shall furnish such offer to all of the Lenders, and, if required by the terms of other Parity Lien Debt, to all holders of such other Parity Lien Debt, to prepay the maximum aggregate principal amount of Budgeted Expenses (as defined the Loans that may be prepaid out of the Net Cash Proceeds received with respect thereto, in Section 15(e) hereof) as set forth in the most recent Budget (as defined in Section 15(e)) required to be delivered pursuant to Section 15(e) hereof, Borrower shall prepay the Forbearance Period Advances as set forth in Section 3(i) hereof in an aggregate amount equal to such excess amount; provided, that (A) such Net Asset Sale Proceeds shall be deposited directly by the payee thereof into a deposit account held by Borrower at Amegy Bank, N.A. and (B) if, within 30 days of Borrower’s receipt of such Net Asset Sale Proceeds, Borrower has not paid one or more such Budgeted Expenses in an aggregate cash amount equal to 100% of the principal amount of such proceeds not otherwise required Loans, plus accrued and unpaid interest (if any) as of the date of such prepayment (each such offer, an “Asset Sale Offer”). The foregoing notwithstanding, the Borrower may elect, by written notice delivered to prepay the Forbearance Period AdvancesAdministrative Agent on or prior to the date two Business Days following receipt of any such Net Cash Proceeds, then to apply such Net Cash Proceeds within 360 days to:
(i) acquire property, plant and equipment or any business entity used or useful in carrying on the business of the Borrower and its Restricted Subsidiaries or to improve or replace any existing property of the Borrower and its Restricted Subsidiaries used or useful in carrying on the business of the Borrower and its Restricted Subsidiaries (the foregoing, collectively, “replacement assets”), or to make capital expenditures in Oil and Gas Properties (provided that any Net Cash Proceeds attributable to a Disposition of an asset owned by a Credit Party must be reinvested in replacement assets owned by one or more Credit Parties or to make capital expenditures in Oil and Gas Properties owned by one or more Credit Parties);
(ii) to permanently repay, redeem or repurchase (and permanently reduce the commitments with respect to) any Priority Lien Debt and other outstanding Priority Lien Obligations;
(iii) subject to Section 2.13(b) (if applicable), to permanently repay, redeem or repurchase (and permanently reduce the commitments with respect to) any Parity Lien Debt, other than Indebtedness owed to the Borrower or another Restricted Subsidiary, at a price equal to 100% of the principal amount of such Parity Lien Debt plus any accrued but unpaid interest thereon; provided that if the Borrower shall prepay so repay or reduce any such Parity Lien Debt, the Forbearance Period Advances as Borrower shall equally and ratably repay (or offer to repay) the Loans by making an offer (in accordance with the procedures set forth in Section 3(ibelow for an Asset Sale Offer) hereof in an to all Lenders at 100% of the principal amount equal to thereof, plus the amount of accrued but unpaid interest, if any, on the amount of Loans that would otherwise be prepaid; or
(iv) any combination of the foregoing. Any portion of such Net Cash Proceeds not so paid. “Net actually applied as provided above within such 360-day period, immediately thereafter will be offered to Lenders pursuant to an Asset Sale Proceeds” meansOffer. Pending application of Net Cash Proceeds pursuant to this Section 2.08, with respect to such Net Cash Proceeds may be invested in any manner that is not prohibited by the Loan Documents. Each Lender may accept all but not less than all of its pro rata share of any Asset Sale Offer (as hereinafter definedany amounts not accepted, together with any other amounts not accepted from prepayments offered under Section 2.08(b), the “Declined Amounts”) by providing written notice (an amount equal to: (1“Acceptance Notice”) cash payments received by Borrower or any of its Subsidiaries from such Asset Sale, minus (2) any bona fide direct costs and expenses incurred in connection with such Asset Sale to the extent paid or payable to non-Affiliates, including (x) income or gains taxes payable or reasonably estimated to be payable by Administrative Agent and the seller as a result Borrower no later than 5:00 p.m. ten Business Days after the date of any gain recognized in connection with such Asset Sale during the tax period the sale occurs, (y) payment of the obligations (other than the Loans) secured by a Lien on the assets in question, which is required to be repaid under the terms thereof as a result of such Asset Sale, and (z) a reasonable reserve for any adjustments in respect to sale price of such assets and any indemnification payments (fixed or contingent) attributable to seller’s indemnities and representations and warranties to purchaser in respect delivery of such Asset Sale undertaken by Borrower or any Offer. If a Lender fails to deliver an Acceptance Notice to the Administrative Agent within the time frame specified above, such failure will be deemed a rejection of its Subsidiaries in connection with such Asset Sale; provided that upon release Sale Offer. The Borrower shall prepay all Loans required to prepaid by it under this Section 2.08(a) no later than five Business Days after expiration of the time period for acceptance by the Lenders of the Asset Sale Offer. Any Declined Amounts shall no longer be subject to this Section 2.08 and may be used by the Borrower in any such reservemanner not prohibited by this Agreement. If the aggregate principal amount of Loans requested to be repaid exceeds the aggregate amount to be repaid by the Borrower pursuant to this Section 2.08, the Administrative Agent shall apply the amounts to be repaid by the Borrower to the Loans requested to be repaid on a pro rata basis based on the principal amount released shall be considered Net Asset Sale Proceeds). “Asset Sale” means a sale, lease or sublease (as lessor or sublessor), sale and leaseback, assignment, conveyance, transfer, license or other disposition to, or any exchange of property with, any Person (other than to or with a Credit Party), in one transaction or a series of transactions, of all or any part of any Credit Party’s businesses, assets or properties of any kind, whether real, personal, or mixed and whether tangible or intangible, whether now owned or hereafter acquired, leased or licensed, including, without limitation, the capital stock of any Credit Party, other than inventory or other assets sold or leased, or cash or cash equivalents disposed of, in each case, in the ordinary course of business. For purposes of clarification, “Asset Sale” shall (i) include (x) the sale or other disposition for value of any contracts or (y) the early termination or modification of any contract resulting in the receipt by any Credit Party of a cash payment or other consideration in exchange for such event (other than payments in the ordinary course of business for accrued and unpaid amounts due through the date of termination or modification) and (ii) exclude any taking or other disposition by means of power of eminent domain, condemnation or similar power, threat or rightLoans.
Appears in 1 contract
Asset Sales. No later than (a) The Company will not, and will not permit any of its Restricted Subsidiaries to, consummate an Asset Sale unless:
(1) the first business day Company (or the Restricted Subsidiary, as the case may be) receives consideration at the time of such Asset Sale at least equal to the Fair Market Value of the assets or Equity Interests issued or sold or otherwise disposed of; provided that this clause (1) shall not apply to an Asset Sale resulting solely from a foreclosure or sale by a third party upon assets or property subject to a Lien not prohibited by this Indenture;
(2) where such Fair Market Value exceeds $75.0 million, the Company’s determination of such Fair Market Value is set forth in an Officer’s Certificate delivered to the Trustee for informational purposes only and the Trustee’s receipt of such shall not constitute constructive notice of any information contained therein or determinable from information contained therein, including the Company’s compliance with any of its covenants (as to which the Trustee is entitled to rely exclusively on Officer’s Certificates); and
(3) at least 75% of the consideration therefor received 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 shall be deemed to be Cash Equivalents:
(A) any liabilities (as shown on the Company’s or such Restricted Subsidiary’s most recent balance sheet, or would be shown on the Company’s or such Restricted Subsidiary’s balance sheet on the date of receipt, in any given month, by Borrower such Asset Sale) of the Company or any Restricted Subsidiary (other than Indebtedness that is by its terms subordinated to the Notes or any Note Guarantee and liabilities to the extent owed to the Company or any Affiliate of its Subsidiaries the Company) that are assumed by the transferee of any Net Asset Sale Proceeds such assets pursuant to a written agreement that releases the Company or such Restricted Subsidiary from further liability therefor;
(as hereinafter definedB) in excess any securities, notes or other obligations received by the Company or any such Restricted Subsidiary from such transferee that are converted (including by way of any Monetization Transaction) by the Company or such Restricted Subsidiary into cash or Cash Equivalents (to the extent of the aggregate amount cash or Cash Equivalents received in that conversion) within 180 days of Budgeted Expenses such Asset Sale; and
(as defined in Section 15(e4) hereof) as set forth in within 12 months from the most recent Budget (as defined in Section 15(e)) required to be delivered pursuant to Section 15(e) hereof, Borrower shall prepay the Forbearance Period Advances as set forth in Section 3(i) hereof in an aggregate amount equal to such excess amount; provided, that later of (A) the date of such Net Asset Sale Proceeds shall be deposited directly by the payee thereof into a deposit account held by Borrower at Amegy Bank, N.A. and (B) ifthe receipt of the Net Proceeds from such Asset Sale (as may be extended by an Acceptable Commitment as set forth below, the “Proceeds Application Period”), an amount equal to 100% of such Net Proceeds (the “Applicable Proceeds”) is applied:
(A) (I) to the extent such Net Proceeds are from an Asset Sale of Collateral and the Company or any Restricted Subsidiary, as the case may be, elects (or is required by the terms of any Indebtedness), to prepay, repay or purchase the Notes or any Credit Agreement Obligations or Additional First Lien Obligations, including Indebtedness under the Credit Agreement (or any Permitted Refinancing Indebtedness in respect thereof that have Pari Passu Lien Priority); provided that, to the extent the Company redeems, repays or repurchases such Credit Agreement Obligations or Additional First Lien Obligations pursuant to this clause, the Company 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 (in accordance with the procedures set forth below for an Asset Disposition Offer) to all Holders of Notes to purchase their Notes at 100% of the principal amount thereof, plus the amount of accrued but unpaid interest, if any, on the amount of Notes that would 4869-1723-0772 v.7 otherwise be prepaid; and (II) to the extent such Net Proceeds are from an Asset Sale of assets or property that do not constitute Collateral, (w) to reduce, prepay, repay or purchase any Indebtedness secured by a Lien on such asset, (x) to reduce, prepay, repay or purchase Credit Agreement Obligations or Additional First Lien Obligations; provided that, to the extent the Company redeems, repays or repurchases such Credit Agreement Obligations or Additional First Lien Obligations pursuant to this clause (x), the Company 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 (in accordance with the procedures set forth below for an Asset Disposition Offer) to all Holders of Notes to purchase their Notes at 100% of the principal amount thereof, plus the amount of accrued but unpaid interest, if any, on the amount of Notes that would otherwise be prepaid, (y) to make an offer (in accordance with the procedures set forth below for an Asset Disposition Offer) to redeem Notes as described under Section 3.07 or purchase Notes through open-market purchases or in privately negotiated transactions, or (z) to reduce, prepay, repay or purchase any other Indebtedness of a Non-Guarantor Subsidiary (in each case, other than Indebtedness owed to a Company or any Restricted Subsidiary); and
(B) to the extent the Company or any Restricted Subsidiary elects, to invest in or commit to invest in Additional Assets (including by means of an investment in Additional Assets by a Restricted Subsidiary equal to the amount of Net Proceeds received by the Company or another Restricted Subsidiary) within 30 12 months from the later of (i) the date of such Asset Sale and (ii) the receipt of such Net Proceeds; provided that a binding agreement shall be treated as a permitted application of Net Proceeds from the date of such commitment with the good faith expectation that an amount equal to Net Proceeds will be applied to satisfy such commitment within 180 days of Borrowersuch commitment (an “Acceptable Commitment”); or
(C) any combination of the foregoing; provided that (1) pending the final application of the amount of any such Applicable Proceeds pursuant to this Section 4.10, the Company or the applicable Restricted Subsidiaries may apply such Applicable Proceeds temporarily to reduce Indebtedness (including under the Credit Agreement) or otherwise apply such Applicable Proceeds in any manner not prohibited by this Indenture, and (2) the Company (or any Restricted Subsidiary, as the case may be) may elect to invest in Additional Assets prior to receiving the Applicable Proceeds attributable to any given Asset Sale (provided that such investment shall be made no earlier than the earliest of written notice to the Trustee of the relevant Asset Sale (which notice shall be for informational purposes only and the Trustee’s receipt of such Net shall not constitute constructive notice of any information contained therein or determinable from information contained therein, including the Company’s compliance with any of its covenants (as to which the Trustee is entitled to rely exclusively on Officer’s Certificates)), execution of a definitive agreement for the relevant Asset Sale, and consummation of the relevant Asset Sale) and deem the amount so invested to be applied pursuant to and in accordance with clause (a)(4)(B) above with respect to such Asset Sale.
(b) If, with respect to any Asset Sale of Collateral, at the expiration of the Proceeds Application Period with respect to such Asset Sale, there remains Applicable Proceeds in excess of $150,000,000 (such amount of Applicable Proceeds that are equal to $150,000,000, “Declined Collateral Excess Proceeds,” and such amount of Applicable Proceeds that are in excess of $150,000,000, “Collateral Excess Proceeds”), then subject to the limitations with respect to Foreign Dispositions set forth below, the Company shall make an offer (a “Collateral Asset Disposition Offer”) no later than ten Business Days after the expiration of the Proceeds Application Period to all Holders of Notes (with a copy to the Trustee) and, if required by the terms of any Credit Agreement Obligations or Additional First Lien Obligations, to all holders of such Credit Agreement Obligations or Additional First Lien Obligations, to purchase the maximum principal amount of such Notes or Credit Agreement Obligations or Additional First Lien Obligations, as appropriate, on a pro rata basis, that may be purchased out of such Collateral Excess Proceeds, Borrower has not paid one or more such Budgeted Expenses if any, at an offer price, in the case of the Notes, in cash in an aggregate amount equal to 100% of the principal amount thereof (or in the event such other Indebtedness was issued with original issue discount, 100% of the accreted value thereof), plus accrued and unpaid interest, if any (or such lesser price with respect to Credit 4869-1723-0772 v.7 Agreement Obligations or Additional First Lien Obligations, if any, as may be provided by the terms of such proceeds other Indebtedness), to, but not otherwise required to prepay including, the Forbearance Period Advancesdate fixed for the closing of such offer, then Borrower shall prepay in accordance with the Forbearance Period Advances as procedures set forth in Section 3(ithis Indenture and the agreement governing the Credit Agreement Obligations or Additional First Lien Obligations, as applicable, in minimum denominations of $2,000 and in integral multiples of $1,000 in excess thereof. Notices of a Collateral Asset Disposition Offer shall be sent by first class mail or sent electronically, at least 10 days but not more than 60 days before the purchase date to each Holder of the Notes at such Holder’s registered address or otherwise in accordance with the applicable procedures of DTC, with a copy to the Trustee. The Company may satisfy the foregoing obligation with respect to the Applicable Proceeds by making a Collateral Asset Disposition Offer prior to the expiration of the Proceeds Application Period (the “Collateral Advance Offer”) hereof with respect to all or a part of the Applicable Proceeds (the “Collateral Advance Portion”) in advance of being required to do so by this Indenture.
(c) To the extent that the aggregate amount (or accreted value, as applicable) of Notes and, if applicable, any other Credit Agreement Obligations or Additional First Lien Obligations, as the case may be, validly tendered or otherwise surrendered in connection with a Collateral Asset Disposition Offer made with Collateral Excess Proceeds (or, in the case of a Collateral Advance Offer, the Collateral Advance Portion) is less than the amount offered in a Collateral Asset Disposition Offer, the Company may include any remaining Collateral Excess Proceeds (or, in the case of a Collateral Advance Offer, the Collateral Advance Portion) in Declined Collateral Excess Proceeds, and use such Declined Collateral Excess Proceeds for any purpose not otherwise prohibited by this Indenture. If the aggregate principal amount (or accreted value, as applicable) of the Notes or, if applicable, Credit Agreement Obligations or Additional First Lien Obligations validly tendered pursuant to any Collateral Asset Disposition Offer exceeds the amount of Collateral Excess Proceeds (or, in the case of a Collateral Advance Offer, the Collateral Advance Portion), the Company shall allocate the Collateral Excess Proceeds among the Notes, the Credit Agreement Obligations and the Additional First Lien Obligations to be purchased on a pro rata basis on the basis of the aggregate principal amount (or accreted value, as applicable) of tendered Notes, Credit Agreement Obligations and Additional First Lien Obligations; provided that no Notes, Credit Agreement Obligations or Additional First Lien Obligations will be selected and purchased in an amount equal to unauthorized denomination. Upon completion of any Collateral Asset Disposition Offer, the amount not so paid. “Net Asset Sale Proceeds” meansof Applicable Proceeds and Collateral Excess Proceeds shall be reset at zero.
(d) If, with respect to any Asset Sale (as hereinafter defined)of assets or property that do not constitute Collateral, an amount equal to: (1) cash payments received by Borrower or any at the expiration of its Subsidiaries from the Proceeds Application Period with respect to such Asset Sale, minus there remains Applicable Proceeds in excess of $150,000,000 (2such amount of Applicable Proceeds that are equal to $150,000,000, “Declined Excess Proceeds,” and such amount of Applicable Proceeds that are in excess of $150,000,000, “Excess Proceeds”), then subject to the limitations with respect to Foreign Dispositions set forth below, the Company shall make an offer (an “Asset Disposition Offer”) no later than ten Business Days after the expiration of the Proceeds Application Period to all Holders of Notes and, if required by the terms of any bona fide direct costs Credit Agreement Obligations or Additional First Lien Obligations, to all holders of such Credit Agreement Obligations or Additional First Lien Obligations, to purchase the maximum principal amount of such Notes and expenses incurred Credit Agreement Obligations or Additional First Lien Obligations, as appropriate, on a pro rata basis, that may be purchased out of such Excess Proceeds, if any, at an offer price, in the case of the Notes, in cash in an amount equal to 100% of the principal amount thereof (or in the event such other Indebtedness was issued with original issue discount, 100% of the accreted value thereof), plus accrued and unpaid interest, if any (or such lesser price with respect to Credit Agreement Obligations and Additional First Lien Obligations, if any, as may be provided by the terms of such other Indebtedness), to, but not including, the date fixed for the closing of such offer, in accordance with the procedures set forth in this Indenture and the agreement governing the Credit Agreement Obligations or Additional First Lien Obligations, as applicable, in minimum denominations of $2,000 and in integral multiples of $1,000 in excess thereof. Notices of an Asset Disposition Offer shall be sent by first class mail or sent electronically, at least 10 days but not more than 60 days before the purchase date to each Holder of the Notes at such Holder’s registered address or otherwise in accordance with the applicable procedures of DTC, with a copy to the Trustee. The Company may satisfy the foregoing obligation with respect to the Applicable Proceeds by making an Asset Disposition Offer prior to the expiration of the Proceeds Application Period (the “Advance Offer”) with respect to all or a part of the Applicable Proceeds (the “Advance Portion”) in advance of being required to do so by this Indenture. 4869-1723-0772 v.7
(e) To the extent that the aggregate amount (or accreted value, as applicable) of Notes and, if applicable, any other Credit Agreement Obligations or Additional First Lien Obligations validly tendered or otherwise surrendered in connection with an Asset Disposition Offer made with Excess Proceeds (or, in the case of an Advance Offer, the Advance Portion) is less than the amount offered in an Asset Disposition Offer, the Company may include any remaining Excess Proceeds (or, in the case of an Advance Offer, the Advance Portion) in Declined Excess Proceeds, and use such Declined Excess Proceeds for any purpose not otherwise prohibited by this Indenture. If the aggregate principal amount (or accreted value, as applicable) of the Notes or, if applicable, Credit Agreement Obligations or Additional First Lien Obligations validly tendered pursuant to any Asset Sale Disposition Offer exceeds the amount of Excess Proceeds (or, in the case of an Advance Offer, the Advance Portion), the Company shall allocate the Excess Proceeds among the Notes, Credit Agreement Obligations and Additional First Lien Obligations to be purchased on a pro rata basis on the basis of the aggregate principal amount (or accreted value, as applicable) of tendered Notes, Credit Agreement Obligations and Additional First Lien Obligations; provided that no Notes, the Credit Agreement Obligations or Additional First Lien Obligations will be selected and purchased in an unauthorized denomination. Upon completion of any Asset Disposition Offer, the amount of Applicable Proceeds and Excess Proceeds shall be reset at zero.
(f) Notwithstanding any other provisions of this covenant, (i) to the extent paid that any of or payable to non-Affiliates, including all the Net Proceeds or Applicable Proceeds of any Asset Sale by a Foreign Subsidiary or an Excluded Domestic Subsidiary (a “Foreign Disposition”) is (x) income prohibited or gains taxes payable or reasonably estimated to be payable delayed by the seller as a result of any gain recognized in connection with such Asset Sale during the tax period the sale occursapplicable local law, (y) payment of the obligations (other than the Loans) secured restricted by a Lien on the assets in question, which is required to be repaid under the terms thereof as a result of such Asset Sale, and applicable organizational documents or any agreement or (z) a reasonable reserve for any adjustments in respect to sale price of such assets and any indemnification payments (fixed or contingent) attributable to seller’s indemnities and representations and warranties to purchaser in respect of such Asset Sale undertaken by Borrower or any of its Subsidiaries in connection with such Asset Sale; provided that upon release of any such reserve, the amount released shall be considered Net Asset Sale Proceeds). “Asset Sale” means a sale, lease or sublease (as lessor or sublessor), sale and leaseback, assignment, conveyance, transfer, license or other disposition subject to, or any exchange of property with, any Person (other than to or with a Credit Party), in one transaction or a series of transactions, of all or any part of any Credit Party’s businesses, assets or properties of any kind, whether real, personal, or mixed and whether tangible or intangible, whether now owned or hereafter acquired, leased or licensed, including, without limitation, the capital stock of any Credit Party, other than inventory or other assets sold or leased, or cash or cash equivalents disposed of, in each case, in the ordinary course of business. For purposes of clarification, “Asset Sale” shall (i) include (x) the sale or other disposition for value of any contracts or (y) the early termination or modification of any contract resulting in the receipt by any Credit Party of a cash payment or other consideration in exchange for such event (other than payments in the ordinary course of business for accrued and unpaid amounts due through the date of termination or modification) and (ii) exclude any taking or other disposition by means of power of eminent domain, condemnation or similar power, threat or right.
Appears in 1 contract
Sources: Indenture (AMC Networks Inc.)
Asset Sales. No later than the first business day following the date of receiptThe Company shall not, in any given month, by Borrower or and shall not permit any of its Restricted Subsidiaries to, consummate an Asset Sale unless (i) the Company (or the Restricted Subsidiary, as the case may be) receives consideration at the time of such Asset Sale at least equal to the fair market value (evidenced by a resolution of the Board of Directors set forth in an Officers' Certificate delivered to the Trustee in the event of an Asset Sale (whether pursuant to a single transaction or a series of related transactions) that has fair market value or involves Net Proceeds in excess of $5.0 million) of the assets or Equity Interests issued or sold or otherwise disposed of and (ii) at least 80% of the consideration therefor received by the Company or such Restricted Subsidiary is in the form of cash; 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 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 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 by the Company or such Subsidiary into cash (to the extent of the cash received), shall be deemed to be cash for purposes of this provision. Within 180 days after the receipt of any Net Proceeds from an Asset Sale (360 days in the case of Net Proceeds that are comprised solely of Buy Out Proceeds), the Company may apply such Net Proceeds (a) to repay Indebtedness under the New Credit Facility, (b) to acquire all or substantially all of the assets of, or a majority of the Voting Stock of, another Permitted Business, (c) to make capital expenditures, (d) to acquire other long-term assets that are used or useful in a Permitted Business, including Media Representation Contracts, or (e) to pay Buy Out Proceeds Amounts in connection with Contract Buy Outs. Pending the final application of any such Net Proceeds, the Company may temporarily reduce revolving credit borrowings or otherwise invest such Net Proceeds in any manner that is not prohibited by this Indenture. Any Net Proceeds from Asset Sales that are not applied or invested as hereinafter defined) provided in excess the first sentence of this paragraph shall be deemed to constitute "Excess Proceeds." When the aggregate amount of Budgeted Expenses (as defined in Section 15(e) hereof) as Excess Proceeds exceeds $5.0 million, the Company shall be required to make an 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 most recent Budget proceeds of sales of assets (as defined 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, at an offer price in Section 15(e)) required to be delivered pursuant to Section 15(e) hereof, Borrower shall prepay the Forbearance Period Advances as set forth in Section 3(i) hereof cash in an aggregate amount equal to such excess amount; provided, that (A) such Net Asset Sale Proceeds shall be deposited directly by the payee thereof into a deposit account held by Borrower at Amegy Bank, N.A. and (B) if, within 30 days of Borrower’s receipt of such Net Asset Sale Proceeds, Borrower has not paid one or more such Budgeted Expenses in an aggregate amount equal to 100% of the principal amount thereof plus accrued and unpaid interest and Liquidated Damages thereon, if any, to the date of such proceeds not otherwise required to prepay purchase, in accordance with the Forbearance Period Advances, then Borrower shall prepay the Forbearance Period Advances as procedures set forth in Section 3(i) hereof in 3.09 hereof, and such other pari passu Indebtedness. To the extent that any Excess Proceeds remain after consummation of an amount equal to the amount not so paid. “Net Asset Sale Proceeds” meansOffer, with respect to the Company may use such Excess Proceeds for any Asset Sale (as hereinafter defined), an purpose not otherwise prohibited by this Indenture. If the aggregate principal amount equal to: (1) cash payments received by Borrower or any of its Subsidiaries from Notes and such Asset Sale, minus (2) any bona fide direct costs and expenses incurred in connection with other pari passu Indebtedness tendered into such Asset Sale to Offer surrendered by Holders thereof exceeds the extent paid or payable to non-Affiliatesamount of Excess Proceeds, including (x) income or gains taxes payable or reasonably estimated the Trustee shall select the Notes and such other pari passu Indebtedness to be payable by the seller as purchased on a result of any gain recognized in connection with such Asset Sale during the tax period the sale occurs, (y) payment of the obligations (other than the Loans) secured by a Lien on the assets in question, which is required to be repaid under the terms thereof as a result pro rata basis. Upon completion of such Asset Sale, and (z) a reasonable reserve for any adjustments in respect offer to sale price of such assets and any indemnification payments (fixed or contingent) attributable to seller’s indemnities and representations and warranties to purchaser in respect of such Asset Sale undertaken by Borrower or any of its Subsidiaries in connection with such Asset Sale; provided that upon release of any such reservepurchase, the amount released of Excess Proceeds shall be considered Net Asset Sale Proceeds). “Asset Sale” means a sale, lease or sublease (as lessor or sublessor), sale and leaseback, assignment, conveyance, transfer, license or other disposition to, or any exchange of property with, any Person (other than to or with a Credit Party), in one transaction or a series of transactions, of all or any part of any Credit Party’s businesses, assets or properties of any kind, whether real, personal, or mixed and whether tangible or intangible, whether now owned or hereafter acquired, leased or licensed, including, without limitation, the capital stock of any Credit Party, other than inventory or other assets sold or leased, or cash or cash equivalents disposed of, in each case, in the ordinary course of business. For purposes of clarification, “Asset Sale” shall (i) include (x) the sale or other disposition for value of any contracts or (y) the early termination or modification of any contract resulting in the receipt by any Credit Party of a cash payment or other consideration in exchange for such event (other than payments in the ordinary course of business for accrued and unpaid amounts due through the date of termination or modification) and (ii) exclude any taking or other disposition by means of power of eminent domain, condemnation or similar power, threat or rightreset at zero.
Appears in 1 contract
Asset Sales. No later than the first business day following the date of receiptThe Company shall not, in any given month, by Borrower or and shall not permit any of its Restricted Subsidiaries to, consummate an Asset Sale unless (i) the Company or such Restricted Subsidiary, as the case may be, receives consideration at the time of such Asset Sale at least equal to the fair market value (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 (ii) at least 75% of the consideration therefor received by the Company or such Restricted Subsidiary is in the form of cash; provided that the amount of (a) any liabilities (as shown on the Company's or such Restricted Subsidiary's most recent balance sheet) of the Company or such Restricted Subsidiary (other than contingent liabilities and liabilities that are by their terms subordinated to the Notes or any 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 and (b) any securities, notes or other obligations received by the Company or such Restricted Subsidiary from such transferee that are immediately converted by the Company or such Restricted Subsidiary into cash (to the extent of the cash received) shall be deemed to be cash for purposes of this provision. Within 360 days of the receipt of any Net Proceeds from an Asset Sale Proceeds Sale, the Company may apply such Net Proceeds, at its option, (i) to repay Senior Debt (and to correspondingly permanently reduce commitments with respect thereto in the case of revolving borrowings) or (ii) to fulfill reimbursement obligations arising under the LC Facility to the extent such reimbursement obligations arose as hereinafter defineda result of actual cash payments having been made under such facility for the benefit of the Company in connection with the Eau Claire IRBs (and to correspondingly permanently reduce reimbursement obligations with respect thereto) or to cash collateralize the LC Facility if the Indebtedness under the Credit Agreement has been accelerated or (iii) the making of a capital expenditure or the acquisition of other long-term assets (including the acquisition of Capital Stock of a Person) in excess the same line of business as the Company immediately prior to such acquisition. Pending the final application of any such Net Proceeds, the Company may temporarily reduce Senior Debt or otherwise invest such Net Proceeds in any manner that is not prohibited by the Indenture. Any Net Proceeds from Asset Sales that are not applied or invested as provided in the first sentence of this paragraph will be deemed to constitute "Excess Proceeds." When the aggregate amount of Budgeted Expenses Excess Proceeds exceeds $5.0 million (as defined in Section 15(e) hereof) as set forth in an "Excess Proceeds Triggering Event"), the most recent Budget (as defined in Section 15(e)) Company will be required to make an offer to all Holders of Notes (an "Asset Sale Offer") to purchase the maximum principal amount of Notes that may be delivered pursuant to Section 15(e) hereof, Borrower shall prepay purchased out of the Forbearance Period Advances as set forth Excess Proceeds at an offer price in Section 3(i) hereof cash in an aggregate amount equal to such excess amount; provided, that (A) such Net Asset Sale Proceeds shall be deposited directly by the payee thereof into a deposit account held by Borrower at Amegy Bank, N.A. and (B) if, within 30 days of Borrower’s receipt of such Net Asset Sale Proceeds, Borrower has not paid one or more such Budgeted Expenses in an aggregate amount equal to 100% of the principal amount thereof, plus accrued and unpaid interest and Liquidated Damages, if any, thereon to the date of purchase, pursuant to the provisions of Section 3.09 hereof. To the extent that the aggregate amount of such proceeds not otherwise required Notes tendered pursuant to prepay an Asset Sale Offer is less than the Forbearance Period AdvancesExcess Proceeds, then Borrower shall prepay the Forbearance Period Advances as set forth in Section 3(i) hereof in an Company may use any remaining Excess Proceeds for general corporate purposes. If the aggregate principal amount equal to of Notes surrendered by Holders thereof exceeds the amount not so paidof Excess Proceeds, the Trustee shall select the Notes to be purchased on a pro rata basis. “Net Upon completion of an Asset Sale Proceeds” means, with respect to any Asset Sale (as hereinafter defined), an amount equal to: (1) cash payments received by Borrower or any of its Subsidiaries from such Asset Sale, minus (2) any bona fide direct costs and expenses incurred in connection with such Asset Sale to the extent paid or payable to non-Affiliates, including (x) income or gains taxes payable or reasonably estimated to be payable by the seller as a result of any gain recognized in connection with such Asset Sale during the tax period the sale occurs, (y) payment of the obligations (other than the Loans) secured by a Lien on the assets in question, which is required to be repaid under the terms thereof as a result of such Asset Sale, and (z) a reasonable reserve for any adjustments in respect to sale price of such assets and any indemnification payments (fixed or contingent) attributable to seller’s indemnities and representations and warranties to purchaser in respect of such Asset Sale undertaken by Borrower or any of its Subsidiaries in connection with such Asset Sale; provided that upon release of any such reserveOffer, the amount released of Excess Proceeds shall be considered Net Asset Sale Proceeds). “Asset Sale” means a sale, lease or sublease (as lessor or sublessor), sale and leaseback, assignment, conveyance, transfer, license or other disposition to, or any exchange of property with, any Person (other than to or with a Credit Party), in one transaction or a series of transactions, of all or any part of any Credit Party’s businesses, assets or properties of any kind, whether real, personal, or mixed and whether tangible or intangible, whether now owned or hereafter acquired, leased or licensed, including, without limitation, the capital stock of any Credit Party, other than inventory or other assets sold or leased, or cash or cash equivalents disposed of, in each case, in the ordinary course of business. For purposes of clarification, “Asset Sale” shall (i) include (x) the sale or other disposition for value of any contracts or (y) the early termination or modification of any contract resulting in the receipt by any Credit Party of a cash payment or other consideration in exchange for such event (other than payments in the ordinary course of business for accrued and unpaid amounts due through the date of termination or modification) and (ii) exclude any taking or other disposition by means of power of eminent domain, condemnation or similar power, threat or rightreset at zero.
Appears in 1 contract
Sources: Indenture (Plainwell Inc)
Asset Sales. No later than None of the first business day following the date of receipt, in any given month, by Borrower Borrowers or any of its the Restricted Subsidiaries of any Net Asset Sale Proceeds (as hereinafter defined) in excess of the aggregate amount of Budgeted Expenses (as defined in Section 15(e) hereof) as set forth in the most recent Budget (as defined in Section 15(e)) required to be delivered pursuant to Section 15(e) hereof, Borrower shall prepay the Forbearance Period Advances as set forth in Section 3(i) hereof in an aggregate amount equal to such excess amount; provided, that (A) such Net Asset Sale Proceeds shall be deposited directly by the payee thereof into a deposit account held by Borrower at Amegy Bank, N.A. and (B) if, within 30 days of Borrower’s receipt of such Net Asset Sale Proceeds, Borrower has not paid one or more such Budgeted Expenses in an aggregate amount equal to 100% of the amount of such proceeds not otherwise required to prepay the Forbearance Period Advances, then Borrower shall prepay the Forbearance Period Advances as set forth in Section 3(i) hereof in an amount equal to the amount not so paid. “Net Asset Sale Proceeds” means, with respect to any Asset Sale (as hereinafter defined), an amount equal to: (1) cash payments received by Borrower or any of its Subsidiaries from such Asset Salea Guarantor shall sell, minus (2) any bona fide direct costs and expenses incurred in connection with such Asset Sale to the extent paid transfer or payable to non-Affiliates, including (x) income or gains taxes payable or reasonably estimated to be payable by the seller as a result otherwise dispose of any gain recognized in connection with such Asset Sale during the tax period the sale occurs, (y) payment of the obligations asset (other than as the Loans) secured by a Lien on the assets in question, which is required to be repaid under the terms thereof as a result of such Asset Sale, and (z) a reasonable reserve for any adjustments in respect to sale price of such assets and any indemnification payments (fixed condemnation or contingent) attributable to seller’s indemnities and representations and warranties to purchaser in respect of such Asset Sale undertaken by Borrower or any of its Subsidiaries in connection with such Asset Sale; provided that upon release of any such reservecasualty, the amount released shall be considered Net Asset Sale Proceeds). “Asset Sale” means a sale, lease granting of Permitted Liens or sublease (as lessor or sublessor), the sale and leaseback, assignment, conveyance, transfer, license or other disposition to, or any exchange of property with, any Person (other than to or with a Credit Party), in one transaction or a series of transactions, of all or any part of any Credit Party’s businesses, assets or properties of any kind, whether real, personal, or mixed and whether tangible or intangible, whether now owned or hereafter acquired, leased or licensed, including, without limitation, the capital stock of any Credit Party, other than inventory or other assets sold or leased, or lots for cash or cash equivalents disposed of, in each case, in the ordinary course of business. For purposes of clarificationbusiness to parties other than any other Borrower, “Asset Sale” shall (i) include (x) the sale or other disposition for value General Partners, the Second Tier Partners, the Third Tier Partners, a Guarantor, any Restricted Subsidiary of any contracts Borrower or (y) the early termination or modification any Affiliate of any contract resulting of such Persons) without the consent of the Majority Lenders except as follows:
(a) any of such Persons may sell any asset (including any asset which is not a Borrowing Base Asset or is not included in the receipt by any Credit Party calculation of a cash payment or other consideration in exchange for such event (other than payments Total Market Value Capitalization) in the ordinary course of business for accrued all cash and unpaid amounts due through for fair market value, except that to the date extent permitted by §8.3(k), Land Assets may be seller-financed in lieu of termination a sale for all cash;
(b) Commercial Company, Land Company or modificationa Guarantor may sell, transfer or otherwise dispose of Commercial Land or Residential Land to Restricted Subsidiaries of a Borrower for the construction of Vertical Commercial Improvements, provided such sales are (i) for all cash and for fair market value or (ii)an equivalent equity interest in such Restricted Subsidiary; and
(c) Commercial Company, Land Company or a Guarantor may sell or transfer Commercial Land or Residential Land to Unrestricted Subsidiaries of a Borrower and Affiliates for the construction of Vertical Commercial Improvements, provided the aggregate amount of such sales do not exceed $50,000,000.00 in the aggregate in any fiscal year, such sales are for
(i) all cash and for fair market value or (ii)an equivalent equity interest in such Unrestricted Subsidiary; and
(d) the Borrowers may sell or transfer Income Producing Property to their respective Restricted Subsidiaries or Unrestricted Subsidiaries or Municipal Utility District Contracts to their respective Unrestricted Subsidiaries, provided that such sales are (i) for all cash and for fair market value or (ii) exclude subject to §8.3(i), an equivalent equity interest in such Person; and
(e) the Borrowers may sell Property other than Commercial Land, Residential Land, Income Producing Property or Municipal Utility District Contracts (including other assets not included in the calculation of Total Market Value Capitalization) to their respective Restricted Subsidiaries or Unrestricted Subsidiaries, provided that (i) such sales are for all cash and for fair market value or (ii) subject to §8.3(i), an equivalent equity interest in such Person; and
(f) transfers of assets for all cash and for fair market value between the Borrowers or by Guarantors to Borrowers; provided that the Golf Courses may be transferred between the Borrowers other than for cash or for fair market value (provided further that such transfer shall not entitle Borrowers to a release of such Golf Course from the lien of the Security Documents). Notwithstanding the foregoing, none of such Persons may sell, transfer or dispose or permit the sale, transfer or disposition of any taking Material Asset or other disposition by means such Person’s interest therein without the prior written consent of power of eminent domain, condemnation or similar power, threat or rightthe Majority Lenders.
Appears in 1 contract
Asset Sales. The Company shall not, and shall not permit any of its Subsidiaries to, consummate an Asset Sale unless:
(a) the Company, or the Subsidiary, as the case may be, receives (i) consideration at the time of the Asset Sale at least equal to the fair market value of the assets issued, sold or otherwise disposed of or (ii) in the case of a lease of assets that constitute an Asset Sale, a lease providing for rents or other consideration which are no less favorable to the Company or the Subsidiary, as the case may be, than the prevailing market conditions;
(b) Company's Management Committee adopts a resolution evidencing its determination that such consideration constitutes such fair market value, or such lease payments are at prevailing market conditions, as the case may be, as certified in an Officers' Certificate delivered to the Trustee; and
(c) at least 75% or, with the approval of the Management Committee of the Company, 50%, of the consideration therefor received by the Company or the Subsidiary is in the form of Cash; provided, that:
(i) any liabilities (as shown on the Company's or the Subsidiary's most recent balance sheet) of the Company or the Subsidiary (other than contingent liabilities and liabilities that are by their terms subordinated to the Notes) that are assumed by the transferee of any of those assets under a customary novation agreement that unconditionally releases the Company or the Subsidiary, as the case may be, from further liability will be deemed to be Cash for purposes of this provision; and
(ii) any securities, notes or other obligations received by the Company or the Subsidiary from the transferee that are promptly, but in any event within 30 days of receipt, converted by the Company or the Subsidiary into Cash (to the extent of the Cash received in that conversion) will be deemed to be Cash for purposes of this provision. No later than the first business day Business Day following the date of receipt, in any given month, by Borrower or any of its Subsidiaries receipt of any Net Proceeds from an Asset Sale, the Company shall apply 100% of such Net Proceeds to (i) repay Indebtedness with respect to Permitted Priority Liens incurred or permitted pursuant to the terms of this Indenture in connection with, and secured by, the asset so sold and pay down the outstanding balance, if any, under the Liquidity Facility (or such lesser amount of the outstanding balance of the Liquidity Facility as approved by at least a majority in outstanding principal amount of the then outstanding Notes) and to permanently reduce the loan commitments thereunder by the amount so prepaid. The Company shall use 50% of any remaining Net Proceeds from any Asset Sale after application pursuant to the prior sentence (or such lesser amount of Net Proceeds as is approved by at least a majority in outstanding principal amount of the then outstanding Notes) as follows: (x) up to $20 million of such amount may be deposited into the Senior Notes Escrow Account to the extent required by the Senior Notes Indenture and, to the extent not so required, into the Escrow Account; and (y) to the extent not deposited into the Senior Notes Escrow Account or the Escrow Account, the Company shall use such amount (the "REMAINING ASSET SALE PROCEEDS") to the extent required by the Senior Notes Indenture to redeem the maximum principal amount of the Senior Notes that may be redeemed out of the Remaining Asset Sale Proceeds (as hereinafter defined) in excess accordance with the Senior Notes Indenture and, if any of the aggregate amount of Budgeted Expenses (as defined in Section 15(e) hereof) as set forth in the most recent Budget (as defined in Section 15(e)) required to be delivered pursuant to Section 15(e) hereof, Borrower shall prepay the Forbearance Period Advances as set forth in Section 3(i) hereof in an aggregate amount equal to such excess amount; provided, that (A) such Net Remaining Asset Sale Proceeds remain after application to any such redemption of Senior Notes, the Company shall use such remaining amount to redeem the maximum principal amount of the Notes that may be deposited directly redeemed out of such moneys in accordance with Section 3.8. Pending the final applications of any Net Proceeds from Asset Sales governed by the payee thereof into a deposit account held by Borrower at Amegy Bankpreceding paragraph, N.A. and (B) if, within 30 days of Borrower’s receipt of the Company or the applicable Subsidiary may invest such Net Asset Sale Proceeds, Borrower has not paid one or more such Budgeted Expenses Proceeds in an aggregate amount equal to 100% of the amount of such proceeds not otherwise required to prepay the Forbearance Period Advances, then Borrower shall prepay the Forbearance Period Advances as set forth in Section 3(i) hereof in an amount equal to the amount not so paid. “Net Asset Sale Proceeds” means, with respect to any Asset Sale Cash which (as hereinafter defined), an amount equal to: (1) cash payments received by Borrower or any of its Subsidiaries from such Asset Sale, minus (2) any bona fide direct costs and expenses incurred in connection with such Asset Sale to the extent paid or payable to non-Affiliates, including (x) income or gains taxes payable or reasonably estimated to be payable required by the seller as Senior Notes Indenture) shall be held in an account in which the Senior Notes Trustee shall have a result of any gain recognized in connection with such Asset Sale during first priority perfected security interest, subject to Permitted Priority Liens, for the tax period the sale occurs, (y) payment benefit of the obligations (other than the Loans) secured by a Lien on the assets in questionHolders of Senior Notes and, which is required subject to be repaid under the terms thereof as a result of such Asset Sale, and (z) a reasonable reserve for any adjustments in respect to sale price of such assets and any indemnification payments (fixed or contingent) attributable to seller’s indemnities and representations and warranties to purchaser in respect of such Asset Sale undertaken by Borrower or any of its Subsidiaries in connection with such Asset Sale; provided that upon release of any such reservethe Senior Notes Intercreditor Agreement, the amount released Notes and, to the extent not so required, shall be considered Net Asset Sale Proceeds). “Asset Sale” means held in an account in which the Trustee shall have a salefirst priority perfected security interest, lease or sublease (as lessor or sublessor)subject to Permitted Priority Liens, sale and leaseback, assignment, conveyance, transfer, license or other disposition to, or any exchange for the benefit of property with, any Person (other than to or with a Credit Party), in one transaction or a series the Holders of transactions, of all or any part of any Credit Party’s businesses, assets or properties of any kind, whether real, personal, or mixed and whether tangible or intangible, whether now owned or hereafter acquired, leased or licensed, including, without limitation, the capital stock of any Credit Party, other than inventory or other assets sold or leased, or cash or cash equivalents disposed of, in each case, in the ordinary course of business. For purposes of clarification, “Asset Sale” shall (i) include (x) the sale or other disposition for value of any contracts or (y) the early termination or modification of any contract resulting in the receipt by any Credit Party of a cash payment or other consideration in exchange for such event (other than payments in the ordinary course of business for accrued and unpaid amounts due through the date of termination or modification) and (ii) exclude any taking or other disposition by means of power of eminent domain, condemnation or similar power, threat or rightNotes.
Appears in 1 contract
Sources: Indenture (Komag Inc /De/)
Asset Sales. No later than the first business day third Business Day following the date of receipt, in receipt by any given month, by Borrower Credit Party or any of its Subsidiaries of any Net Asset Sale Proceeds (as hereinafter definedit being understood that such Net Asset Sale Proceeds shall be promptly deposited into and thereafter maintained in a Controlled Account which is a Term Loan Priority Account (and in any event no later than the next Business Day) in excess of the aggregate amount of Budgeted Expenses (as defined in Section 15(e) hereof) as set forth in the most recent Budget (as defined in Section 15(efollowing receipt thereof)) required to be delivered pursuant to Section 15(e) hereof, Borrower Companies shall prepay the Forbearance Period Advances Loans as set forth in Section 3(i) hereof 2.11 in an aggregate amount equal to such excess amountNet Asset Sale Proceeds; provided, that (Ai) such Net Asset Sale Proceeds so long as no Default or Event of Default shall have occurred and be deposited directly by the payee thereof into a deposit account held by Borrower at Amegy Bankcontinuing, N.A. and (Bii) ifto the extent that, within 30 days of Borrower’s after giving effect to receipt of such Net Asset Sale Proceeds, Borrower has the aggregate Net Asset Sale Proceeds from all such Asset Sales during the period commencing on the Closing Date and ending on such date of determination do not paid one or more exceed $1,000,000 (such Budgeted Expenses amounts, “Asset Sale Reinvestment Amounts”), upon delivery of a written notice to Administrative Agent, Companies shall have the option to invest such Asset Sale Reinvestment Amounts within three hundred sixty-five (365) days of receipt thereof (as extended, if at all, in an aggregate amount equal to 100% accordance with the proviso below, the “Asset Sale Reinvestment Period”) in long-term productive assets that constitute Term Loan Priority Collateral of the amount general type used in the business of (A) Companies and (B) Lifecore or any of its Subsidiaries (such assets, “Additional Assets”); provided further, that the Asset Sale Reinvestment Period shall be extended for up to an additional one hundred eighty (180) days in respect of any Asset Sale Reinvestment Amounts where the Credit Parties have, on or before the expiration of the initial Asset Sale Reinvestment Period, entered into a definitive agreement for the purchase or other acquisition of Additional Assets. In the event that the Asset Sale Reinvestment Amounts are not reinvested in accordance with the provisions above prior to the earliest of (i) the last day of such proceeds not otherwise required Asset Sale Reinvestment Period and (ii) the date of the occurrence of an Event of Default, Administrative Agent shall apply such Asset Sale Reinvestment Amounts to prepay the Forbearance Period Advances, then Borrower shall prepay the Forbearance Period Advances Obligations as set forth in Section 3(i2.11. Prior to entering into any Asset Sale of assets which constitute Term Loan Priority Collateral, the Credit Party Representative shall provide not less than three (3) hereof in an amount equal to Business Days’ prior written notice thereof and the amount not so paid. “Net Asset Sale Proceeds” means, with respect Proceeds of such Assets shall be deposited into a deposit account subject to any Asset Sale (as hereinafter defined), a Control Agreement whereby Administrative Agent has a First Priority security interest therein. If Administrative Agent does not receive prior written notice that Term Loan Priority Collateral is the subject of an amount equal to: (1) cash payments received by Borrower or any of its Subsidiaries from such Asset Sale, minus (2) any bona fide direct costs then the Credit Parties shall be deemed to have represented and expenses incurred in connection with warranted to Administrative Agent on the date such Asset Sale is consummated that none of the assets subject to the extent paid or payable to non-Affiliates, including (x) income or gains taxes payable or reasonably estimated to be payable by the seller as a result of any gain recognized in connection with such Asset Sale during the tax period the sale occurs, (y) payment of the obligations (other than the Loans) secured by a Lien on the assets in question, which is required to be repaid under the terms thereof as a result of such Asset Sale, and (z) a reasonable reserve for any adjustments in respect to sale price of such assets and any indemnification payments (fixed or contingent) attributable to seller’s indemnities and representations and warranties to purchaser in respect of such Asset Sale undertaken by Borrower or any of its Subsidiaries in connection with such Asset Sale; provided that upon release of any such reserve, the amount released shall be considered Net Asset Sale Proceeds). “Asset Sale” means a sale, lease or sublease (as lessor or sublessor), sale and leaseback, assignment, conveyance, transfer, license or other disposition to, or any exchange of property with, any Person (other than to or with a Credit Party), in one transaction or a series of transactions, of all or any part of any Credit Party’s businesses, assets or properties of any kind, whether real, personal, or mixed and whether tangible or intangible, whether now owned or hereafter acquired, leased or licensed, including, without limitation, the capital stock of any Credit Party, other than inventory or other assets sold or leased, or cash or cash equivalents disposed of, in each case, in the ordinary course of business. For purposes of clarification, “Asset Sale” shall (i) include (x) the sale or other disposition for value of any contracts or (y) the early termination or modification of any contract resulting in the receipt by any Credit Party of a cash payment or other consideration in exchange for such event (other than payments in the ordinary course of business for accrued and unpaid amounts due through the date of termination or modification) and (ii) exclude any taking or other disposition by means of power of eminent domain, condemnation or similar power, threat or right.constitute Term Loan Priority Collateral..
Appears in 1 contract
Sources: Credit and Guaranty Agreement (Lifecore Biomedical, Inc. \De\)
Asset Sales. No later The Company shall not, and shall not permit any of its Restricted Subsidiaries to, consummate an Asset Sale unless:
(1) the Company, or any such Restricted Subsidiary, as the case may be, receives consideration at the time of such Asset Sale at least equal to the fair market value of the assets or Equity Interests issued or sold or otherwise disposed of;
(2) such fair market value is determined by the Company's Board of Directors and evidenced by a resolution of its Board of Directors set forth in an Officers' Certificate delivered to the Administrative Agent; and
(3) at least 75% of the consideration received in such Asset Sale by the Company or any such Restricted Subsidiary is in the form of cash or Cash Equivalents or a Permitted Business Asset. For purposes of this provision, each of the following shall be deemed to be cash:
(A) 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, other than contingent liabilities and Indebtedness that is by its terms subordinated to the first business day following Term Loans, that are assumed by the transferee of any such assets pursuant to an 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 within 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; provided that clauses (1) and (2) shall not apply to Asset Sales made pursuant to contractual obligations existing at the date of receipt, in any given month, by Borrower or any of its Subsidiaries this Agreement. Within 12 months after the receipt of any Net Cash Proceeds from an Asset Sale Proceeds (as hereinafter defined) in excess of Sale, the aggregate amount of Budgeted Expenses (as defined in Section 15(e) hereof) as set forth in Company, the most recent Budget (as defined in Section 15(e)) required applicable Restricted Subsidiary or, subject to be delivered pursuant to Section 15(e) hereofthe immediately following paragraph, Borrower shall prepay the Forbearance Period Advances as set forth in Section 3(i) hereof in or any other Restricted Subsidiary may apply an aggregate amount equal to such excess amount; providedNet Cash Proceeds or, that in the case of clause (A3) such Net Asset Sale Proceeds shall be deposited directly by the payee thereof below, enter into a deposit account held by Borrower at Amegy Bank, N.A. and (B) if, binding commitment to apply such amount if such amount is applied within 30 days of Borrower’s 24 months after receipt of such Net Asset Sale Cash Proceeds, Borrower has not paid one or more such Budgeted Expenses in an aggregate amount equal to 100% of the amount of such proceeds not otherwise required to prepay the Forbearance Period Advances, then Borrower shall prepay the Forbearance Period Advances as set forth in Section 3(i) hereof in an amount equal to the amount not so paid. “Net Asset Sale Proceeds” means, with respect to any Asset Sale (as hereinafter defined), an amount equal to: follows:
(1) cash payments received by Borrower to permanently repay any Indebtedness that ranks equal in right of payment to the Term Loans and Notes or repay any Indebtedness of its Subsidiaries from such Asset Saleany Restricted Subsidiary (other than intercompany Indebtedness) and, minus if the Indebtedness repaid is revolving credit Indebtedness, to correspondingly reduce commitments with respect thereto;
(2) any bona fide direct costs and expenses incurred to make capital expenditures;
(3) to acquire Equity Interests in connection with such Asset Sale to the extent paid or payable to non-Affiliates, including (x) income or gains taxes payable or reasonably estimated to be payable one of its Restricted Subsidiaries not then owned by the seller as Company or one of its other Restricted Subsidiaries, to acquire Equity Interests in any Person such that such person becomes a result of any gain recognized in connection with such Asset Sale during the tax period the sale occurs, (y) payment Restricted Subsidiary of the obligations (other than the Loans) secured by a Lien on the assets in question, which is required to be repaid under the terms thereof Company as a result of such Asset Sale, and (z) a reasonable reserve for acquisition or to acquire additional Equity Interests in any adjustments Investment in any Person with respect to sale price 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 a Facility or a Permitted Business, or assets and any indemnification payments (fixed or contingent) attributable to seller’s indemnities and representations and warranties to purchaser used in respect of such Asset Sale undertaken by Borrower or any of its Subsidiaries in connection with such Asset Sale; a Permitted Business, provided that upon release of any such reserve, acquisition is made in accordance with the amount released shall be considered Net Asset Sale Proceeds). “Asset Sale” means a sale, lease or sublease (as lessor or sublessor), sale and leaseback, assignment, conveyance, transfer, license or other disposition to, or any exchange of property with, any Person (other than to or with a Credit Party), in one transaction or a series of transactions, of all or any part of any Credit Party’s businesses, assets or properties of any kind, whether real, personal, or mixed and whether tangible or intangible, whether now owned or hereafter acquired, leased or licensedIndenture, including, without limitation, Section 5.9. In determining compliance with the capital stock 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 5.17 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 (taking into account all contributions by the other holders of any Credit Party, other than inventory or other assets sold or leased, or cash or cash equivalents disposed of, Equity Interests in each case, such entity and any change in percentage ownership interest resulting from such contribution) equals the amount of Net Cash Proceeds attributable to the Company's ownership interest in the ordinary course of business. For purposes of clarification, “entity making the Asset Sale” shall (i) include (x) the sale . Any proceeds from an Asset Sale that are not applied or other disposition for value of any contracts or (y) the early termination or modification of any contract resulting invested as provided above in the receipt by preceding paragraph will constitute "Excess Proceeds." When the aggregate amount of Excess Proceeds exceeds $20.0 million, the Company will make an asset sale offer ("Asset Sale Offer") to all holders of Notes and the Lenders (on a pro rata basis based on the aggregate principal amount of Notes and Term Loans outstanding) (and to all holders of other pari passu Indebtedness of the Company and that contain provisions similar to those set forth in this Section 5.17 with respect to offers to purchase or redeem with the proceeds of sales of assets) to prepay the maximum principal amount of Term Loans and any Credit Party such other pari passu Indebtedness that may be purchased out of a cash payment the Excess Proceeds. The prepayment price shall be equal to 100% of principal amount of the Notes or other consideration in exchange for such event (other than payments in Term Loans subject to the ordinary course of business for Asset Sale Offer plus accrued and unpaid amounts due through interest (including liquidated damages, if any, with respect to the Notes as provided by the Indenture) thereon to the date of termination prepayment (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 Offer, the Company may use such Excess Proceeds for any purpose not otherwise prohibited by this Agreement or modificationthe Indenture. If the aggregate principal amount of Notes, Term Loans and pari passu Indebtedness, together with accrued and unpaid interest, thereon tendered into such Asset Sale Offer exceeds the amount of Excess Proceeds, the amount of such Notes, Term Loans and pari passu Indebtedness to be redeemed or prepaid shall be reduced (on a pro rata basis based on such aggregate principal amount) in an amount equal to such excess shall not be purchased or redeemed and (ii) exclude shall remain outstanding. Upon completion of each offer to prepay, the amount of Excess Proceeds will be reset at zero. Pending the final application of any taking Net Cash Proceeds, the Company may temporarily reduce revolving credit borrowings or other disposition otherwise invest the Net Cash Proceeds in any manner that is not prohibited by means of power of eminent domain, condemnation this Agreement or similar power, threat or rightthe Indenture.
Appears in 1 contract
Asset Sales. No later than (a) The Company shall not, and shall not permit any of its Restricted Subsidiaries to, consummate an Asset Sale unless:
(1) the first business day Company (or the Restricted Subsidiary, as the case may be) receives consideration at the time of such Asset Sale at least equal to the Fair Market Value of the assets or Equity Interests issued or sold or otherwise disposed of; provided that this clause (1) shall not apply to an Asset Sale resulting solely from a foreclosure or sale by a third party upon assets or property subject to a Lien not prohibited by this Indenture;
(2) where such Fair Market Value exceeds $50.0 million, the Company’s determination of such Fair Market Value is set forth in an Officers’ Certificate delivered to the Trustee; and
(3) at least 75% of the consideration therefor received 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 shall be deemed to be Cash Equivalents:
A. any liabilities (as shown on the Company’s or such Restricted Subsidiary’s most recent balance sheet, or would be shown on the Company’s or such Restricted Subsidiary’s balance sheet on the date of receiptsuch Asset Sale) of the Company or any Restricted Subsidiary (other than contingent liabilities, Indebtedness that is by its terms subordinated to the Securities of each series then Outstanding or any Note Guarantee and liabilities to the extent owed to the Company or any Affiliate of the Company) that are assumed by the transferee of any such assets pursuant to a written agreement that releases the Company or such Restricted Subsidiary from further liability therefor; and
B. any securities, notes or other obligations received by the Company or any such Restricted Subsidiary from such transferee that are converted (including by way of any Monetization Transaction) by the Company or such Restricted Subsidiary into cash (to the extent of the cash received in any given month, by Borrower that conversion) within 180 days of such Asset Sale.
(b) The Company or any of its Restricted Subsidiaries may use the Net Proceeds of any Net Asset Sale Proceeds (as hereinafter defined) in excess of the aggregate amount of Budgeted Expenses (as defined in Section 15(e) hereof) as set forth in the most recent Budget (as defined in Section 15(e)) required to be delivered pursuant to Section 15(e) hereof, Borrower shall prepay the Forbearance Period Advances as set forth in Section 3(i) hereof in an aggregate amount equal to such excess amount; provided, that (A) such Net Asset Sale Proceeds shall be deposited directly by the payee thereof into a deposit account held by Borrower at Amegy Bank, N.A. and (B) if, within 30 days of Borrower’s receipt of such Net Asset Sale Proceeds, Borrower has not paid one or more such Budgeted Expenses in an aggregate amount equal to 100% of the amount of such proceeds not otherwise required to prepay the Forbearance Period Advances, then Borrower shall prepay the Forbearance Period Advances as set forth in Section 3(i) hereof in an amount equal to the amount not so paid. “Net Asset Sale Proceeds” means, with respect to any Asset Sale (as hereinafter defined), an amount equal to: (1) cash payments received in any manner that is not prohibited by Borrower or any of its Subsidiaries from such Asset Sale, minus (2) any bona fide direct costs and expenses incurred in connection with such Asset Sale to the extent paid or payable to non-Affiliates, including (x) income or gains taxes payable or reasonably estimated to be payable by the seller as a result of any gain recognized in connection with such Asset Sale during the tax period the sale occurs, (y) payment of the obligations (other than the Loans) secured by a Lien on the assets in question, which is required to be repaid under the terms thereof as a result of such Asset Sale, and (z) a reasonable reserve for any adjustments in respect to sale price of such assets and any indemnification payments (fixed or contingent) attributable to seller’s indemnities and representations and warranties to purchaser in respect of such Asset Sale undertaken by Borrower or any of its Subsidiaries in connection with such Asset Sale; provided that upon release of any such reserve, the amount released shall be considered Net Asset Sale Proceeds). “Asset Sale” means a sale, lease or sublease (as lessor or sublessor), sale and leaseback, assignment, conveyance, transfer, license or other disposition to, or any exchange of property with, any Person (other than to or with a Credit Party), in one transaction or a series of transactions, of all or any part of any Credit Party’s businesses, assets or properties of any kind, whether real, personal, or mixed and whether tangible or intangible, whether now owned or hereafter acquired, leased or licensed, including, without limitation, the capital stock of any Credit Party, other than inventory or other assets sold or leased, or cash or cash equivalents disposed of, in each case, in the ordinary course of business. For purposes of clarification, “Asset Sale” shall (i) include (x) the sale or other disposition for value of any contracts or (y) the early termination or modification of any contract resulting in the receipt by any Credit Party of a cash payment or other consideration in exchange for such event (other than payments in the ordinary course of business for accrued and unpaid amounts due through the date of termination or modification) and (ii) exclude any taking or other disposition by means of power of eminent domain, condemnation or similar power, threat or rightthis Indenture.
Appears in 1 contract
Sources: Indenture (Voom HD Holdings LLC)
Asset Sales. No later than Within 450 days after the first business day following receipt of any Net Cash Proceeds from any Asset Sale, the date of receipt, in any given month, by Borrower Company may (i) apply all or any of its Subsidiaries the Net Cash Proceeds therefrom to repay Indebtedness (other than Subordinated Indebtedness) of the Company or any Subsidiary, provided, in each case, that the related loan commitment of any revolving credit facility or other borrowing (if any) is thereby permanently reduced by the amount of such Indebtedness so repaid, or (ii) invest all or any part of the Net Cash Proceeds thereof in properties and other capital assets that 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 in the Ice Business. Pending the final application of any such Net Cash Proceeds, the Company may temporarily reduce borrowings under any revolving credit facility or otherwise invest such Net Cash Proceeds (in any manner that is not prohibited by this Indenture. Any Net Cash Proceeds from an Asset Sale that are not applied or invested as hereinafter defined) provided in excess the first sentence of this paragraph will be deemed to constitute "Available Proceeds Amount." When the aggregate Available Proceeds Amount exceeds $5,000,000, the Company shall make an offer to purchase, from all Holders of 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 Budgeted Expenses 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 of the Securities in accordance with the procedures set forth in this Indenture the maximum principal amount (expressed as a multiple of $100) of Securities that may be purchased out of an amount (the "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 Section 15(eclause (ii) hereofbelow) as set forth in the most recent Budget (as defined in Section 15(eof all Securities tendered)) required to be delivered pursuant to Section 15(e) hereof, Borrower shall prepay the Forbearance Period Advances as set forth in Section 3(i) hereof in an aggregate amount equal to such excess amount; provided, that (A) such Net Asset Sale Proceeds shall be deposited directly by the payee thereof into a deposit account held by Borrower at Amegy Bank, N.A. and (B) if, within 30 days of Borrower’s receipt to the extent required by any such Pari Passu Indebtedness and provided there is a permanent reduction in the principal amount of such Net Asset Sale ProceedsPari Passu Indebtedness, Borrower has not paid one or more the Company shall make an offer to purchase such Budgeted Expenses Pari Passu Indebtedness (a "Pari Passu Offer") in an aggregate 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 cash in an amount equal to 100% of the principal amount of such proceeds not otherwise required the Securities tendered pursuant to prepay the Forbearance Period Advancesan Asset Proceeds Offer, then Borrower shall prepay the Forbearance Period Advances as set forth in Section 3(i) hereof in an amount equal to the amount not so paid. “Net Asset Sale Proceeds” means, with respect to any Asset Sale (as hereinafter defined), an amount equal to: (1) cash payments received by Borrower or any of its Subsidiaries from such Asset Sale, minus (2) any bona fide direct costs and expenses incurred in connection with such Asset Sale to the extent paid or payable to non-Affiliates, including (x) income or gains taxes payable or reasonably estimated to be payable by the seller as a result of any gain recognized in connection with such Asset Sale during the tax period the sale occurs, (y) payment of the obligations (other than the Loans) secured by a Lien on the assets in question, which is required to be repaid under the terms thereof as a result of such Asset Sale, and (z) a reasonable reserve for any adjustments in respect to sale price of such assets and any indemnification payments (fixed or contingent) attributable to seller’s indemnities and representations and warranties to purchaser in respect of such Asset Sale undertaken by Borrower or any of its Subsidiaries in connection with such Asset Sale; provided that upon release of any such reserve, the amount released shall be considered Net Asset Sale Proceeds). “Asset Sale” means a sale, lease or sublease (as lessor or sublessor), sale and leaseback, assignment, conveyance, transfer, license or other disposition to, or any exchange of property with, any Person (other than to or with a Credit Party), in one transaction or a series of transactions, of all or any part of any Credit Party’s businesses, assets or properties of any kind, whether real, personal, or mixed and whether tangible or intangible, whether now owned or hereafter acquired, leased or licensed, including, without limitation, the capital stock of any Credit Party, other than inventory or other assets sold or leased, or cash or cash equivalents disposed of, in each case, in the ordinary course of business. For purposes of clarification, “Asset Sale” shall (i) include (x) the sale or other disposition for value of any contracts or (y) the early termination or modification of any contract resulting in the receipt by any Credit Party of a cash payment or other consideration in exchange for such event (other than payments in the ordinary course of business for plus accrued and unpaid amounts due through interest, if any, to the date of termination or modification) and (ii) exclude any taking or other disposition by means of power of eminent domain, condemnation or similar power, threat or right.such Asset Proceeds
Appears in 1 contract
Asset Sales. No later than The Company will not, and will not permit any of its Restricted Subsidiaries to, consummate an Asset Sale unless:
(1) the first business day following 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; and
(2) at least 75% of the consideration received by the Company or such Restricted Subsidiary in the Asset Sale and all other Asset Sales since the date of receiptthe Base Indenture is in the form of cash, in Cash Equivalents or Replacement Assets or a combination thereof. For purposes of this provision, each of the following shall be deemed to be cash:
(A) any given monthliabilities, by Borrower as shown on the Company’s most recent consolidated balance sheet (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 Note Guarantee) that are assumed by the transferee of its Subsidiaries any such assets pursuant to a 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 by the Company or such Restricted Subsidiary into cash, Cash Equivalents or Replacement Assets within 90 days after such Asset Sale, to the extent of the cash, Cash Equivalents or Replacement Assets received in that conversion. Notwithstanding the foregoing, the 75% limitation referred to above shall be deemed satisfied with respect to any Asset Sale in which the cash, Cash Equivalents or Replacement Assets portion of the consideration received therefrom, determined in accordance with the foregoing provision 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 from an Asset Sale, the Company or a Restricted Subsidiary may apply an amount equal to such Net Proceeds:
(1) to purchase Replacement Assets; or
(2) to prepay, repay, defease, redeem, purchase or otherwise retire Indebtedness and other Obligations under a Credit Facility or Indebtedness secured by property that is subject to such Asset Sale and, if the Indebtedness repaid is revolving credit Indebtedness, to correspondingly reduce commitments with respect thereto; Notwithstanding the foregoing, if within 365 days after the receipt of any Net Proceeds from an Asset Sale, the Company or a Restricted Subsidiary enters into a binding written agreement irrevocably committing the Company or such Restricted Subsidiary to an application of funds of the kind described in clause (1) above, and as hereinafter defined) to which the only condition to closing not satisfied within 365 days of the receipt of such Net Proceeds is the receipt of required governmental approvals, the Company or such Restricted Subsidiary shall be deemed not to be in excess violation of the preceding paragraph so long as such application of funds is consummated within 545 days of the receipt of such Net Proceeds. Pending the final application of any Net Proceeds of an Asset Sale, the Company may temporarily reduce revolving credit borrowings or otherwise use the Net Proceeds in any manner that is not prohibited by this Supplemental Indenture. An amount equal to any Net Proceeds from Asset Sales that are not applied or invested as provided in the third paragraph of this Section 4.10 will constitute “Excess Proceeds.” When the aggregate amount of Budgeted Expenses (as defined in Section 15(e) hereof) as Excess Proceeds exceeds $20.0 million, within 20 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 Supplemental Indenture with respect to offers to purchase or redeem with the most recent Budget (as defined proceeds of sales of assets in accordance with Section 15(e)) required 3.09 hereof to purchase the maximum principal amount of Notes and such other pari passu Indebtedness that may be delivered pursuant to Section 15(e) hereof, Borrower shall prepay purchased out of the Forbearance Period Advances as set forth Excess Proceeds. The offer price in Section 3(i) hereof in an aggregate amount equal to such excess amount; provided, that (A) such Net any Asset Sale Proceeds shall Offer will be deposited directly by the payee thereof into a deposit account held by Borrower at Amegy Bank, N.A. and (B) if, within 30 days of Borrower’s receipt of such Net Asset Sale Proceeds, Borrower has not paid one or more such Budgeted Expenses in an aggregate amount equal to 100% of the principal amount of the Notes and such proceeds other pari passu Indebtedness that may be purchased with Excess Proceeds, plus accrued and unpaid interest to, but not including, the date of consummation of the purchase, and will be payable in cash. If any Excess Proceeds remain after consummation of an Asset Sale Offer, the Company and its Restricted Subsidiaries may use those Excess Proceeds for any purpose not otherwise prohibited by this Supplemental Indenture. If the aggregate principal amount of Notes and other pari passu Indebtedness tendered into such Asset Sale Offer exceeds the amount of Excess Proceeds, the Trustee shall select the Notes and the Company will select such other pari passu Indebtedness to be purchased on a pro rata basis (or, in the case of Global Notes, based on a method that most nearly approximates a pro rata selection as the Trustee deems fair and appropriate) unless otherwise required to prepay by law or applicable stock exchange or depository requirements. Upon completion of each Asset Sale Offer, the Forbearance Period Advances, then Borrower shall prepay amount of Excess Proceeds will be reset at zero. The Company will comply with the Forbearance Period Advances as set forth in Section 3(i) hereof in an amount equal requirements of Rule 14e-1 under the Exchange Act and any other securities laws and regulations thereunder to the amount not so paid. “Net Asset Sale Proceeds” means, with respect to any Asset Sale (as hereinafter defined), an amount equal to: (1) cash payments received by Borrower or any of its Subsidiaries from extent such Asset Sale, minus (2) any bona fide direct costs laws and expenses incurred regulations are applicable in connection with such each repurchase of Notes pursuant to an Asset Sale to Offer. To the extent paid or payable to non-Affiliates, including (x) income or gains taxes payable or reasonably estimated to be payable by that the seller as a result provisions of any gain recognized in connection securities laws or regulations conflict with such Asset Sale during the tax period the sale occurs, (y) payment provisions of the obligations (other than the Loans) secured by Section 3.09 hereof or this Section 4.10 or compliance with Section 3.09 hereof or this Section 4.10 would constitute a Lien on the assets in question, which is required to be repaid under the terms thereof as a result of such Asset Sale, and (z) a reasonable reserve for any adjustments in respect to sale price of such assets and any indemnification payments (fixed or contingent) attributable to seller’s indemnities and representations and warranties to purchaser in respect of such Asset Sale undertaken by Borrower or any of its Subsidiaries in connection with such Asset Sale; provided that upon release violation of any such reservelaws or regulations, the amount released shall Company will comply with the applicable securities laws and regulations and will not be considered Net Asset Sale Proceeds). “Asset Sale” means a sale, lease deemed to have breached its obligations under Section 3.09 hereof or sublease (as lessor or sublessor), sale and leaseback, assignment, conveyance, transfer, license or other disposition to, or any exchange this Section 4.10 by virtue of property with, any Person (other than to or with a Credit Party), in one transaction or a series of transactions, of all or any part of any Credit Party’s businesses, assets or properties of any kind, whether real, personal, or mixed and whether tangible or intangible, whether now owned or hereafter acquired, leased or licensed, including, without limitation, the capital stock of any Credit Party, other than inventory or other assets sold or leased, or cash or cash equivalents disposed of, in each case, in the ordinary course of business. For purposes of clarification, “Asset Sale” shall (i) include (x) the sale or other disposition for value of any contracts or (y) the early termination or modification of any contract resulting in the receipt by any Credit Party of a cash payment or other consideration in exchange for such event (other than payments in the ordinary course of business for accrued and unpaid amounts due through the date of termination or modification) and (ii) exclude any taking or other disposition by means of power of eminent domain, condemnation or similar power, threat or rightcompliance.
Appears in 1 contract
Sources: Second Supplemental Indenture (Metropcs Communications Inc)
Asset Sales. No later than (a) The Company will not, and will not permit any of its Restricted Subsidiaries to, consummate an Asset Sale unless:
(1) the first business day following Company (or the Restricted Subsidiary, as the case may be) receives consideration at the time of the Asset Sale at least equal to the Fair Market Value (measured as of the date of receiptthe definitive agreement with respect to such Asset Sale) of the assets or Equity Interests issued or sold or otherwise disposed of; and
(2) at least 75% of the consideration received in the Asset Sale by the Company or such Restricted Subsidiary is in the form of cash or Cash Equivalents; provided that for purposes of this provision, each of the following shall be deemed to be cash:
(A) any liabilities, as shown on the Company’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 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;
(B) any securities, notes or other obligations received by the Company or any such Restricted Subsidiary from such transferee that are not Cash Equivalents but are contemporaneously, subject to ordinary settlement periods, converted by the Company or such Restricted Subsidiary into cash or Cash Equivalents, to the extent of the cash or Cash Equivalents received in that conversion;
(C) any given month, Designated Noncash Consideration received by Borrower the Company or any of its Restricted Subsidiaries in an Asset Sale having an aggregate Fair Market Value (as determined in good faith by the Board of Directors of the Company at the time received without giving effect to subsequent changes in value), taken together with all other Designated Noncash Consideration received pursuant to this clause (C) that is at that time outstanding, not to exceed 5.0% of the Company’s Total Assets; and
(D) any stock or assets of the kind referred to in clauses (3), (4) or (5) of Section 4.10(b) below.
(b) Within 360 days after the receipt of any Net Proceeds received from an Asset Sale, the Company (or the applicable Restricted Subsidiary, as the case may be) may apply such Net Proceeds:
(1) to repay, repurchase or redeem Priority Lien Obligations;
(2) to repay Indebtedness of a Restricted Subsidiary of the Company that is not a Guarantor, other than Indebtedness owed to the Company or another Restricted Subsidiary and, if the Indebtedness repaid is revolving credit Indebtedness, to correspondingly reduce commitments with respect thereto;
(3) to acquire all or substantially all of the assets of, or any Capital Stock of, another Permitted Business, if, after giving effect to any such acquisition of Capital Stock, the Permitted Business is or becomes a Restricted Subsidiary of the Company;
(4) to make a capital expenditure;
(5) to acquire other assets that are not classified as current assets under GAAP and that are used or useful in a Permitted Business; or
(6) any combination of the foregoing; provided that the Company will be deemed to have complied with clauses (3), (4) and/or (5) of this Section 4.10(b) if and to the extent that, within 360 days after the Asset Sale that generated the Net Proceeds, the Company has entered into and not abandoned or rejected a binding agreement to acquire the assets or Capital Stock of a Permitted Business, make a capital expenditure and/or acquire other assets in compliance with clauses (3), (4) and/or (5) of this Section 4.10(b), and that acquisition or capital expenditure is thereafter completed within 90 days after the end of such 360-day period.
(c) Pending the final application of any Net Proceeds from an Asset Sale, the Company (or the applicable Restricted Subsidiary) may temporarily reduce revolving credit borrowings or otherwise invest Net Proceeds from an Asset Sale in any manner that is not prohibited by this Indenture. Any Net Proceeds from an Asset Sale that are not applied or invested as hereinafter definedprovided in Section 4.10(b) in excess of hereof will constitute “Excess Proceeds.” When the aggregate amount of Budgeted Expenses (as defined in Section 15(e) hereof) as set forth in the most recent Budget (as defined in Section 15(e)) required to be delivered pursuant to Section 15(e) hereof, Borrower shall prepay the Forbearance Period Advances as set forth in Section 3(i) hereof in an aggregate amount equal to such excess amount; provided, that (A) such Net Asset Sale Excess Proceeds shall be deposited directly by the payee thereof into a deposit account held by Borrower at Amegy Bank, N.A. and (B) ifexceeds $25.0 million, within 30 days of Borrower’s receipt of such Net thereof, the Company will make an offer (an “Asset Sale Offer”) to all Holders of Notes and all holders of other Shared Lien Debt containing provisions similar to those set forth in this Indenture with respect to offers to purchase, prepay or redeem with the proceeds of sales of assets in accordance with Section 3.10 hereof to purchase, prepay or redeem the maximum principal amount of Notes and such other Shared Lien Debt (plus all accrued interest on such Indebtedness and the amount of all fees and expenses, including premiums, incurred in connection therewith) that may be purchased, prepaid or redeemed out of the Excess Proceeds, Borrower has not paid one or more such Budgeted Expenses . The offer price for the Notes and any other Shared Lien Debt in an aggregate amount any Asset Sale Offer will be equal to 100% of the principal amount of the Notes and such proceeds other Shared Lien Debt purchased, plus accrued and unpaid interest, if any, on the Notes and any other Shared Lien Debt, to the date of purchase, prepayment or redemption, subject to the rights of Holders of Notes on the relevant record date to receive interest due on the relevant interest payment date, and will be payable in cash. If any Excess Proceeds remain after consummation of an Asset Sale Offer, the Company may use those Excess Proceeds for any purpose not otherwise prohibited by this Indenture. If the aggregate principal amount of Notes and such other Shared Lien Debt tendered in (or required to prepay be prepaid or redeemed in connection with) such Asset Sale Offer exceeds the Forbearance Period Advancesamount of Excess Proceeds, then Borrower shall prepay the Forbearance Period Advances Company will select the Notes and such other Shared Lien Debt to be purchased on a pro rata basis, based on the principal amount of Notes and such other Shared Lien Debt tendered or required to be prepaid or redeemed (with such adjustments as set forth may be deemed appropriate by the Company so that only Notes in Section 3(iminimum denominations of $2,000, or an integral multiple of $1,000 in excess of $2,000, will be left outstanding). Upon completion of each Asset Sale Offer, the amount of Excess Proceeds will be reset at zero.
(d) hereof in an amount equal The Company will comply with the requirements of Rule 14e-1 under the Exchange Act and any other securities laws and regulations thereunder to the amount not so paid. “Net Asset Sale Proceeds” means, with respect to any Asset Sale (as hereinafter defined), an amount equal to: (1) cash payments received by Borrower or any of its Subsidiaries from such Asset Sale, minus (2) any bona fide direct costs extent those laws and expenses incurred regulations are applicable in connection with such each repurchase of Notes pursuant to an Asset Sale to Offer. To the extent paid or payable to non-Affiliates, including (x) income or gains taxes payable or reasonably estimated to be payable by that the seller as a result provisions of any gain recognized in connection securities laws or regulations conflict with such Asset Sale during the tax period provisions of Section 3.10 hereof or this Section 4.10, the sale occursCompany will comply with the applicable securities laws and regulations and will not be deemed to have breached its obligations under Section 3.10 hereof or this Section 4.10, (y) payment of the obligations (other than the Loans) secured by a Lien on the assets in question, which is required to be repaid under the terms thereof as a result virtue of such Asset Sale, and (z) a reasonable reserve for any adjustments in respect to sale price of such assets and any indemnification payments (fixed or contingent) attributable to seller’s indemnities and representations and warranties to purchaser in respect of such Asset Sale undertaken by Borrower or any of its Subsidiaries in connection with such Asset Sale; provided that upon release of any such reserve, the amount released shall be considered Net Asset Sale Proceeds). “Asset Sale” means a sale, lease or sublease (as lessor or sublessor), sale and leaseback, assignment, conveyance, transfer, license or other disposition to, or any exchange of property with, any Person (other than to or with a Credit Party), in one transaction or a series of transactions, of all or any part of any Credit Party’s businesses, assets or properties of any kind, whether real, personal, or mixed and whether tangible or intangible, whether now owned or hereafter acquired, leased or licensed, including, without limitation, the capital stock of any Credit Party, other than inventory or other assets sold or leased, or cash or cash equivalents disposed of, in each case, in the ordinary course of business. For purposes of clarification, “Asset Sale” shall (i) include (x) the sale or other disposition for value of any contracts or (y) the early termination or modification of any contract resulting in the receipt by any Credit Party of a cash payment or other consideration in exchange for such event (other than payments in the ordinary course of business for accrued and unpaid amounts due through the date of termination or modification) and (ii) exclude any taking or other disposition by means of power of eminent domain, condemnation or similar power, threat or rightcompliance.
Appears in 1 contract
Sources: Indenture (Viasystems Group Inc)
Asset Sales. No later than the first business day following the date of receiptThe Company shall not, in any given month, by Borrower or and shall not permit any of its Restricted Subsidiaries to, consummate an Asset Sale unless (i) the Company (or such Restricted Subsidiary, as the case may be) receives consideration at the time of any such Asset Sale (if other than a Casualty Event) at least equal to the fair market value (as determined in good faith by the Board of Directors of the Company (including as to the value of all consideration other than Qualified Cash Equivalents) and set forth in an Officers' Certificate delivered to the Trustee) of the Property or Equity Interests that are the subject of such Asset Sale, (ii) at least 80% of the consideration therefor (if other than a Casualty Event) is in the form of Qualified Cash Equivalents, (iii) the Net Cash Proceeds received by the Company (or such Restricted Subsidiary, as the case may be) from such Asset Sale shall be remitted to the Trustee for deposit into the Asset Sale Proceeds Account free of any Lien (other than the Lien of this Indenture, the Security Documents and the Working Capital Facility), and the Company (or such Restricted Subsidiary, as hereinafter definedthe case may be) shall take such action as shall be necessary under 6.03 hereof in order to maintain the Lien of the Trustee on any other consideration received in such Asset Sale and (iv) 100% of the Net Cash Proceeds from such Asset Sale shall be retained in the Asset Sale Proceeds Account and shall be available (x) in excess the case of Net Cash Proceeds of a Casualty Event, to be applied to the repair, rebuilding or replacement of the Property subject to such Casualty Event and (y) in the case of any other Net Cash Proceeds of such Asset Sale, to the reinvestment into Property that is used or useful in a Permitted Business, provided that to the extent the Net Cash Proceeds referred to in this clause (iv) have not been so applied to such repair, rebuilding, replacement or reinvestment within 365 days following the receipt of such Net Cash Proceeds (or within such shorter period as shall be specified by the Company), such Net Cash Proceeds shall be applied to the making of an Asset Sale Offer as provided in the next-following paragraph. The aggregate amount of the Net Cash Proceeds referred to in the preceding clause (iv) remaining at the end of such period after the application of such Indenture Net Cash Proceeds as described in such clause (iv) to the repair, rebuilding, replacement or reinvestment referred to therein, shall constitute "Excess Proceeds." When the aggregate amount of Budgeted Expenses Excess Proceeds equals or exceeds $10,000,000 (as defined in Section 15(e) hereof) as set forth in taking into account income earned on such Excess Proceeds), the most recent Budget (as defined in Section 15(e)) Issuer will be required to make an offer to all Holders (an "Asset Sale Offer") to purchase the maximum principal amount of Notes that may be delivered pursuant to Section 15(e) hereofpurchased out of the Excess Proceeds, Borrower shall prepay the Forbearance Period Advances as set forth at a purchase price in Section 3(i) hereof cash in an aggregate amount equal to such excess amount; provided, that (A) such Net Asset Sale Proceeds shall be deposited directly by the payee thereof into a deposit account held by Borrower at Amegy Bank, N.A. and (B) if, within 30 days of Borrower’s receipt of such Net Asset Sale Proceeds, Borrower has not paid one or more such Budgeted Expenses in an aggregate amount equal to 100% of the principal amount thereof, plus accrued and unpaid interest thereon, if any, to the date of such proceeds not otherwise required to prepay purchase, in accordance with the Forbearance Period Advances, then Borrower shall prepay the Forbearance Period Advances as procedures set forth in Section 3(i) hereof in an amount equal Article III hereof, it being understood that, to the amount not so paid. “Net extent any such Excess Proceeds held in the Asset Sale Proceeds” meansProceeds Account are required to be applied to the payment of the Working Capital Facility, with respect then only the portion of the Excess Proceeds remaining after such payment shall be applied to any the making of an Asset Sale (as hereinafter defined)Offer. To the extent that any Excess Proceeds remain after consummation of an Asset Sale Offer, an the Issuer may use such Excess Proceeds for any purpose not otherwise prohibited by this Indenture. If the aggregate principal amount equal to: (1) cash payments received by Borrower or any of its Subsidiaries from such Asset Sale, minus (2) any bona fide direct costs and expenses incurred in connection with Notes tendered into such Asset Sale to Offer surrendered by Holders thereof exceeds the extent paid or payable to non-Affiliatesamount of Excess Proceeds, including (x) income or gains taxes payable or reasonably estimated the Trustee shall select the Notes to be payable by the seller as purchased on a result of any gain recognized in connection with such Asset Sale during the tax period the sale occurs, (y) payment of the obligations (other than the Loans) secured by a Lien on the assets in question, which is required to be repaid under the terms thereof as a result of such Asset Sale, and (z) a reasonable reserve for any adjustments in respect to sale price of such assets and any indemnification payments (fixed or contingent) attributable to seller’s indemnities and representations and warranties to purchaser in respect pro rata basis. Upon completion of such Asset Sale undertaken by Borrower or any of its Subsidiaries in connection with such Asset Sale; provided that upon release of any such reserveOffer, the amount released of Excess Proceeds shall be considered Net Asset Sale Proceeds). “Asset Sale” means a sale, lease or sublease (as lessor or sublessor), sale and leaseback, assignment, conveyance, transfer, license or other disposition to, or any exchange of property with, any Person (other than to or with a Credit Party), in one transaction or a series of transactions, of all or any part of any Credit Party’s businesses, assets or properties of any kind, whether real, personal, or mixed and whether tangible or intangible, whether now owned or hereafter acquired, leased or licensed, including, without limitation, the capital stock of any Credit Party, other than inventory or other assets sold or leased, or cash or cash equivalents disposed of, in each case, in the ordinary course of business. For reset at zero for purposes of clarification, “Asset Sale” shall (i) include (x) the sale or other disposition for value first sentence of any contracts or (y) the early termination or modification of any contract resulting in the receipt by any Credit Party of a cash payment or other consideration in exchange for such event (other than payments in the ordinary course of business for accrued and unpaid amounts due through the date of termination or modification) and (ii) exclude any taking or other disposition by means of power of eminent domain, condemnation or similar power, threat or rightthis paragraph.
Appears in 1 contract
Asset Sales. No later than (a) The Company (or, from and after the first business day following Guarantee Effective Date, the date Parent) will not, and will not permit any of receiptits Restricted Subsidiaries to, in any given monthconsummate an Asset Sale unless:
(1) the Parent or the Company, by Borrower as applicable, or any of its Restricted Subsidiaries receives consideration at the time of any Net the Asset Sale Proceeds at least equal to the Fair Market Value (measured as hereinafter defined) in excess of the aggregate amount date of Budgeted Expenses the definitive agreement with respect to such Asset Sale) of the assets or Equity Interests issued or sold or otherwise disposed of; and
(as defined in Section 15(e2) hereof) as set forth at least 75% of the consideration received in the most recent Budget (Asset Sale by the Parent or the Company, as defined applicable or such Restricted Subsidiary is in Section 15(e)) required the form of cash or Cash Equivalents. For purposes of this provision, each of the following will be deemed to be delivered pursuant to Section 15(e) hereof, Borrower shall prepay the Forbearance Period Advances as set forth in Section 3(i) hereof in an aggregate amount equal to such excess amount; provided, that cash:
(A) such Net Asset Sale Proceeds shall be deposited directly any liabilities of the Parent (from and after the Guarantee Effective Date only), the Company or any Restricted Subsidiary (other than contingent liabilities and liabilities that are by their terms subordinated to the Notes or any Note Guarantee) that are assumed by the payee thereof into transferee of any such assets pursuant to a deposit account held by Borrower at Amegy Bankcustomary novation or indemnity agreement that releases the Parent, N.A. and the Company or such Restricted Subsidiary from or indemnifies against further liability with respect to such liabilities;
(B) ifany securities, notes or other obligations received by the Parent (from and after the Guarantee Effective Date only), the Company or any such Restricted Subsidiary from such transferee that are within 30 180 days of Borrower’s receipt of such Net Asset Sale Proceeds, Borrower has not paid one or more such Budgeted Expenses in an aggregate amount equal to 100% of the amount of such proceeds not otherwise required to prepay the Forbearance Period Advances, then Borrower shall prepay the Forbearance Period Advances as set forth in Section 3(i) hereof in an amount equal to the amount not so paid. “Net Asset Sale Proceeds” means, with respect to any Asset Sale (as hereinafter defined), an amount equal to: (1) cash payments received by Borrower or any of its Subsidiaries from such Asset Sale, minus subject to ordinary settlement periods, converted by the Parent, the Company or such Restricted Subsidiary into cash or Cash Equivalents, to the extent of the cash or Cash Equivalents received in that conversion;
(C) any stock or assets of the kind referred to in clauses (2) any bona fide direct costs and expenses incurred in connection with such Asset Sale or (4) of paragraph (b) of this Section 4.10, subject to the extent paid or payable to non-Affiliates, including conditions stated therein;
(xD) income or gains taxes payable or reasonably estimated to be payable by the seller as a result Indebtedness of any gain recognized in connection with such Asset Sale during the tax period the sale occurs, (y) payment of the obligations Restricted Subsidiary (other than the Loanssubordinated Indebtedness or intercompany obligations) secured by that is no longer a Lien on the assets in question, which is required to be repaid under the terms thereof Restricted Subsidiary as a result of such Asset Sale, to the extent that the Parent, the Company and (z) a reasonable reserve for each other Restricted Subsidiary are released from any adjustments in respect to sale price guarantee of payment of such assets Indebtedness in connection with the Asset Sale; and
(E) any Designated Noncash Consideration received by the Parent (from and any indemnification payments (fixed after the Guarantee Effective Date only), the Company or contingent) attributable to seller’s indemnities and representations and warranties to purchaser such Restricted Subsidiary in respect of such Asset Sale undertaken having an aggregate Fair Market Value, taken together with all other Designated Noncash Consideration received pursuant to this clause (E) that has not previously been converted to cash not to exceed the greater of $100.0 million or 2.75% of Consolidated Total Assets at the time of receipt of such Designated Noncash 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.
(b) Within 365 days after the receipt of any Net Proceeds from an Asset Sale (a binding commitment entered into within such 365 day period shall be treated as a permitted application of the Net Proceeds so long as such Net Proceeds shall be applied to satisfy such commitment within 180 days of the date of such commitment), the Parent ((from and after the Guarantee Effective Date) or the Company (prior to such date) or one or more Restricted Subsidiaries may apply an amount equal to the amount of such Net Proceeds:
(1) to repay (a) Indebtedness and other Obligations under a Credit Facility; or (b) other Indebtedness (other than Indebtedness contractually subordinated in right of payment to the Notes or to any Note Guarantee) of the Parent (from and after the Guarantee Effective Date only), the Company or any Restricted Subsidiary thereof secured by Borrower a Permitted Lien;
(2) to acquire all or substantially all of the assets of, or any Capital Stock of, another Permitted Business, if, after giving effect to any such acquisition of Capital Stock, the Permitted Business is or becomes a Restricted Subsidiary of the Parent (from and after the Guarantee Effective Date only) or the Company;
(3) to make one or more capital expenditures; or
(4) to acquire other assets that are not classified as current assets under GAAP and that are used or useful in a Permitted Business or replace the assets subject to this Section 4.10;
(5) with respect to Asset Sales of assets of a Restricted Subsidiary that is not a Guarantor or the issuer of the Notes, to permanently reduce Indebtedness of a Restricted Subsidiary that is not a Guarantor or the issuer of the Notes (and to correspondingly reduce commitments with respect thereto), other than Indebtedness owed to the Parent (from and after the Guarantee Effective Date only), the Company or another Subsidiary of the Company; and/ or
(6) a combination of repayment and investment permitted by the foregoing clauses (1), (2), (3), (4) and (5).
(c) Pending the final application of any Net Proceeds, the Parent (from and after the Guarantee Effective Date only), 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.
(d) If the Net Proceeds exceed the aggregate amount within the applicable time period, such excess amount that has not been applied or invested as provided clause (b) of this Section 4.10 will constitute “Excess Proceeds.” When the aggregate amount of Excess Proceeds exceeds $50.0 million, within thirty days thereof, the Company will make an Asset Sale Offer to all Holders of Notes and all holders of other Indebtedness that is pari passu with the Notes containing provisions similar to those set forth in this Indenture with respect to offers to purchase, prepay or redeem with the proceeds of sales of assets to purchase, prepay or redeem the maximum principal amount of Notes and such other pari passu Indebtedness (plus all accrued interest on the Indebtedness and the amount of all fees and expenses, including premiums, incurred in connection therewith) that may be purchased, prepaid or redeemed out of the Excess Proceeds. The offer price in any Asset Sale Offer will be equal to 100% of the principal amount, plus accrued and unpaid interest, if any, to, but not including, the date of purchase, prepayment or redemption, subject to the rights of Holders of Notes on the relevant record date to receive interest due on the relevant interest payment date, and will be payable in cash. If any Excess Proceeds remain after consummation of an Asset Sale Offer, the Company may use those Excess Proceeds for any purpose not otherwise prohibited by this Indenture. If the aggregate principal amount of Notes and other pari passu Indebtedness tendered in (or required to be prepaid or redeemed in connection with) such Asset Sale Offer exceeds the amount of Excess Proceeds, the Trustee will select the Notes and such other pari passu Indebtedness to be purchased on a pro rata basis, based on the amounts tendered or required to be prepaid or redeemed (with such adjustments as may be deemed appropriate by the Company so that only Notes in denominations of $2,000, or an integral multiple of $1,000 in excess thereof, will be purchased). Upon completion of each Asset Sale Offer, the amount of Excess Proceeds will be reset at zero.
(e) The Company will comply with the requirements of Rule 14e-1 under the Exchange Act and any other securities laws and regulations thereunder to the extent those laws and regulations are applicable in connection with such each repurchase of Notes pursuant to an Asset Sale; provided Sale Offer. To the extent that upon release the provisions of any such reservesecurities laws or regulations conflict with the provisions of Section 3.09 hereof or this Section 4.10, the amount released shall Company will comply with the applicable securities laws and regulations and will not be considered Net Asset Sale Proceeds). “Asset Sale” means a sale, lease deemed to have breached its obligations under Section 3.09 hereof or sublease (as lessor or sublessor), sale and leaseback, assignment, conveyance, transfer, license or other disposition to, or any exchange this Section 4.10 by virtue of property with, any Person (other than to or with a Credit Party), in one transaction or a series of transactions, of all or any part of any Credit Party’s businesses, assets or properties of any kind, whether real, personal, or mixed and whether tangible or intangible, whether now owned or hereafter acquired, leased or licensed, including, without limitation, the capital stock of any Credit Party, other than inventory or other assets sold or leased, or cash or cash equivalents disposed of, in each case, in the ordinary course of business. For purposes of clarification, “Asset Sale” shall (i) include (x) the sale or other disposition for value of any contracts or (y) the early termination or modification of any contract resulting in the receipt by any Credit Party of a cash payment or other consideration in exchange for such event (other than payments in the ordinary course of business for accrued and unpaid amounts due through the date of termination or modification) and (ii) exclude any taking or other disposition by means of power of eminent domain, condemnation or similar power, threat or rightcompliance.
Appears in 1 contract
Sources: Indenture (Firstcash, Inc)
Asset Sales. No later than the first business day following the date of receiptThe Company shall not, in any given month, by Borrower or and shall not permit any of its Subsidiaries Restricted Subsidiaries, to consummate an Asset Sale other than transfers of Receivables to a Receivables Subsidiary in connection with a Receivables Transaction and regulatory divestitures required in connection with acquisitions unless (i) the Company (or the Restricted Subsidiary, as the case may be) receives consideration at the time of such Asset Sale at least equal to the fair market value of the assets or Equity Interests issued or sold or otherwise disposed of, (ii) such fair market value is determined by the Company's Board of Directors and evidenced by a resolution of the Board of Directors set forth in an Officers' Certificate delivered to the Trustee and (iii) at least 75% of the consideration therefor received by the Company or such Restricted Subsidiary is in the form of cash. For purposes of this provision, each of the following shall be deemed to be cash: (A) any liabilities (as shown on the Company's or such Restricted Subsidiary's most recent balance sheet), of the Company or any Restricted Subsidiary (other than contingent liabilities and liabilities that are by their terms subordinated to the First Mortgage Notes or any Subsidiary Guarantee) that are assumed by the transferee of any such assets pursuant to a customary assumption agreement and (B) any securities, notes or other obligations received by the Company or any such Restricted Subsidiary from such transferee that are within 45 days converted by the Company or such Restricted Subsidiary into cash (to the extent of the cash received in that conversion); provided, however, that the 75% limitation referred to above shall not apply to any Asset Sale in which the cash or Cash Equivalents portion of the consideration received therefore is equal to or greater than what the net after-tax proceeds would have been had such Asset Sale complied with the aforementioned 75% limitation. Within 365 days after the receipt of any Net Proceeds from an Asset Sale Sale, the Company may apply such Net Proceeds at its option (a) to repay Senior Debt and, if the Senior Debt repaid is revolving credit Indebtedness, to correspondingly reduce commitments with respect thereto, (b) to acquire all or substantially all of the assets of, or a majority of the Voting Stock of, another Permitted Business, (c) to make a capital expenditure or (d) to acquire other long-term assets that are used or useful in a Permitted Business. Pending the final application of any such Net Proceeds, the Company may temporarily reduce revolving credit borrowings or otherwise invest such Net Proceeds in any manner that is not prohibited by this Indenture. Any Net Proceeds from Asset Sales that are not applied or invested as hereinafter defined) provided in excess of the preceding paragraph shall constitute "Excess Proceeds." When the aggregate amount of Budgeted Expenses (as defined in Section 15(e) hereof) as Excess Proceeds exceeds $5.0 million, the Company shall make an Asset Sale Offer to all Holders of First Mortgage Notes and all holders of other Indebtedness that is pari passu with the First Mortgage Notes containing provisions similar to those set forth in this Indenture with respect to offers to purchase or redeem with the most recent Budget (as defined proceeds of sales of assets to purchase the maximum principal amount of First Mortgage Notes and such other pari passu Indebtedness that may be purchased out of the Excess Proceeds. The offer price in Section 15(e)) required to be delivered pursuant to Section 15(e) hereof, Borrower shall prepay the Forbearance Period Advances as set forth in Section 3(i) hereof in an aggregate amount equal to such excess amount; provided, that (A) such Net any Asset Sale Proceeds Offer shall be deposited directly by the payee thereof into a deposit account held by Borrower at Amegy Bank, N.A. and (B) if, within 30 days of Borrower’s receipt of such Net Asset Sale Proceeds, Borrower has not paid one or more such Budgeted Expenses in an aggregate amount equal to 100% of principal amount plus accrued and unpaid interest (including Liquidated Damages), if any, to the date of purchase, and shall be payable in cash. If any Excess Proceeds remain after consummation of an Asset Sale Offer, the Company may use such Excess Proceeds for any purpose not otherwise prohibited by this Indenture. If the aggregate principal amount of First Mortgage Notes and such other pari passu Indebtedness tendered into such Asset Sale Offer exceeds the amount of Excess Proceeds, the Trustee shall select the First Mortgage Notes and such proceeds not otherwise required other pari passu Indebtedness to prepay be purchased on a pro rata basis based on the Forbearance Period Advancesprincipal amount of First Mortgage Notes and such other pari passu Indebtedness tendered. Upon completion of each Asset Sale Offer, then Borrower the amount of Excess Proceeds shall prepay be reset at zero. The Company shall comply with the Forbearance Period Advances as set forth in Section 3(i) hereof in an amount equal requirements of Rule 14e-1 under the Exchange Act and any other securities laws and regulations thereunder to the amount not so paid. “Net Asset Sale Proceeds” means, with respect to any Asset Sale (as hereinafter defined), an amount equal to: (1) cash payments received by Borrower or any of its Subsidiaries from extent such Asset Sale, minus (2) any bona fide direct costs laws and expenses incurred regulations are applicable in connection with such each repurchase of First Mortgage Notes pursuant to an Asset Sale to Offer. To the extent paid or payable to non-Affiliates, including (x) income or gains taxes payable or reasonably estimated to be payable by that the seller as a result provisions of any gain recognized in connection securities laws or regulations conflict with such Asset Sale during this Section 4.10, the tax period Company shall comply with the sale occurs, (y) payment of the applicable securities laws and regulations and shall not be deemed to have breached its obligations (other than the Loans) secured hereunder by a Lien on the assets in question, which is required to be repaid under the terms thereof as a result virtue of such Asset Sale, and (z) a reasonable reserve for any adjustments in respect to sale price of such assets and any indemnification payments (fixed or contingent) attributable to seller’s indemnities and representations and warranties to purchaser in respect of such Asset Sale undertaken by Borrower or any of its Subsidiaries in connection with such Asset Sale; provided that upon release of any such reserve, the amount released shall be considered Net Asset Sale Proceeds). “Asset Sale” means a sale, lease or sublease (as lessor or sublessor), sale and leaseback, assignment, conveyance, transfer, license or other disposition to, or any exchange of property with, any Person (other than to or with a Credit Party), in one transaction or a series of transactions, of all or any part of any Credit Party’s businesses, assets or properties of any kind, whether real, personal, or mixed and whether tangible or intangible, whether now owned or hereafter acquired, leased or licensed, including, without limitation, the capital stock of any Credit Party, other than inventory or other assets sold or leased, or cash or cash equivalents disposed of, in each case, in the ordinary course of business. For purposes of clarification, “Asset Sale” shall (i) include (x) the sale or other disposition for value of any contracts or (y) the early termination or modification of any contract resulting in the receipt by any Credit Party of a cash payment or other consideration in exchange for such event (other than payments in the ordinary course of business for accrued and unpaid amounts due through the date of termination or modification) and (ii) exclude any taking or other disposition by means of power of eminent domain, condemnation or similar power, threat or rightconflict.
Appears in 1 contract
Asset Sales. No later than the first business day Business Day following the date of receipt, in receipt by any given month, by Borrower Note Party or any of its Subsidiaries of any Net Asset Sale Proceeds (as hereinafter defined) in excess of the aggregate amount of Budgeted Expenses (as defined in Section 15(e) hereof) as set forth in the most recent Budget (as defined in Section 15(e)) required to be delivered pursuant to Section 15(e) hereof, Borrower shall prepay the Forbearance Period Advances as set forth in Section 3(i) hereof in an aggregate amount equal to such excess amount; provided, it being understood that (A) such Net Asset Sale Proceeds shall be deposited directly by the payee thereof into a deposit account held by Borrower at Amegy BankControlled Account on the same Business Day as receipt thereof), N.A. Company shall prepay the Notes in an aggregate amount equal to such Net Asset Sale Proceeds; provided, that (i) so long as no Default or Event of Default shall have occurred and be continuing, and (Bii) ifto the extent that aggregate Net Asset Sale Proceeds from the Closing Date through the applicable date of determination do not exceed $500,000, upon delivery of a written notice to Purchasers, Company shall have the option, directly or through one or more Subsidiaries, to invest Net Asset Sale Proceeds (the “Asset Sale Reinvestment Amounts”) in (1) long-term productive assets of the general type used in the business of Company if such assets are purchased or constructed within 30 one hundred eighty (180) days of Borrower’s following receipt of such Net Asset Sale Proceeds, Borrower has not paid one Proceeds (and so long as any such individual or more such Budgeted Expenses aggregate investment in an aggregate amount equal to 100% of the amount of $500,000 or more has been consented to by Requisite Purchasers) or (2) Permitted Acquisitions if (x) a definitive purchase agreement with respect to such proceeds Permitted Acquisition is executed within one hundred twenty (120) days following receipt of such Net Asset Sale Proceeds and (y) the transaction contemplated by such purchase agreement is consummated within one hundred eighty (180) days of receipt thereof; provided further, pending any such reinvestment all Asset Sale Reinvestment Amounts shall, if requested by Requisite Purchasers, be held at all times prior to such reinvestment, in an escrow account in form and substance reasonably acceptable to Requisite Purchasers. In the event that the Asset Sale Reinvestment Amounts are not otherwise required reinvested by Company prior to prepay the Forbearance Period Advancesearliest of (i) the last day of such one hundred twenty (120) day period (if, then Borrower with respect to a Permitted Acquisition, a definitive purchase agreement therefor has not been executed in accordance with the other provisions of this Agreement), (ii) the last day of such one hundred eighty (180) day period (if, with respect to a Permitted Acquisition, a definitive purchase agreement therefor has been executed but the transactions contemplated thereby have not been consummated in accordance with the other provisions of this Agreement), and (iii) the date of the occurrence of an Event of Default, such Asset Sale Reinvestment Amounts shall prepay be applied to the Forbearance Period Advances Obligations as set forth in Section 3(i) hereof in an amount equal to the amount not so paid. “Net Asset Sale Proceeds” means, with respect to any Asset Sale (as hereinafter defined2.14(b), an amount equal to: (1) cash payments received by Borrower or any of its Subsidiaries from such Asset Sale, minus (2) any bona fide direct costs and expenses incurred in connection with such Asset Sale to the extent paid or payable to non-Affiliates, including (x) income or gains taxes payable or reasonably estimated to be payable by the seller as a result of any gain recognized in connection with such Asset Sale during the tax period the sale occurs, (y) payment of the obligations (other than the Loans) secured by a Lien on the assets in question, which is required to be repaid under the terms thereof as a result of such Asset Sale, and (z) a reasonable reserve for any adjustments in respect to sale price of such assets and any indemnification payments (fixed or contingent) attributable to seller’s indemnities and representations and warranties to purchaser in respect of such Asset Sale undertaken by Borrower or any of its Subsidiaries in connection with such Asset Sale; provided that upon release of any such reserve, the amount released shall be considered Net Asset Sale Proceeds). “Asset Sale” means a sale, lease or sublease (as lessor or sublessor), sale and leaseback, assignment, conveyance, transfer, license or other disposition to, or any exchange of property with, any Person (other than to or with a Credit Party), in one transaction or a series of transactions, of all or any part of any Credit Party’s businesses, assets or properties of any kind, whether real, personal, or mixed and whether tangible or intangible, whether now owned or hereafter acquired, leased or licensed, including, without limitation, the capital stock of any Credit Party, other than inventory or other assets sold or leased, or cash or cash equivalents disposed of, in each case, in the ordinary course of business. For purposes of clarification, “Asset Sale” shall (i) include (x) the sale or other disposition for value of any contracts or (y) the early termination or modification of any contract resulting in the receipt by any Credit Party of a cash payment or other consideration in exchange for such event (other than payments in the ordinary course of business for accrued and unpaid amounts due through the date of termination or modification) and (ii) exclude any taking or other disposition by means of power of eminent domain, condemnation or similar power, threat or right.
Appears in 1 contract
Asset Sales. No later than Within 365 days after the first business day following the date of receipt, in any given month, by Borrower or any of its Subsidiaries receipt of any Net Proceeds from an Asset Sale Proceeds (as hereinafter defined) in excess Sale, the Issuers or Restricted Subsidiary of the aggregate amount of Budgeted Expenses Issuers, as applicable, may apply such Net Proceeds at its option: (as defined in Section 15(ei) hereofto repay (x) as set forth in Obligations under the most recent Budget Notes or any other Pari Passu Indebtedness (as defined in Section 15(eincluding under the Credit Agreement)) required to be delivered pursuant to Section 15(e) hereof, Borrower shall prepay the Forbearance Period Advances as set forth in Section 3(i) hereof in an aggregate amount equal to such excess amount; provided, provided that (A) to the extent that the terms of any such other Pari Passu Indebtedness (other than the Notes), as such terms are in effect on the Issue Date, require that such other Pari Passu Indebtedness be repaid with the Net Proceeds from an Asset Sale Proceeds prior to repayment of the Notes, the Issuers or any Restricted Subsidiary shall be deposited directly by entitled to repay such other Pari Passu Indebtedness pursuant to this clause (i) prior to repaying the payee thereof into a deposit account held by Borrower at Amegy BankNotes, N.A. and (B) ifsubject to the foregoing clause (A), within 30 days of Borrower’s receipt of if the Issuers shall so repay any such Net Pari Passu Indebtedness (other than the Notes), they will, on a ratable basis, make an offer (in accordance with the procedures set forth below for an Asset Sale Proceeds, Borrower has not paid one or more such Budgeted Expenses in an aggregate amount Offer (as defined below) to all Holders of Notes to purchase at a purchase price equal to 100% of the principal amount thereof, plus accrued and unpaid interest, if any, the pro rata principal amount of the Notes, or (y) Indebtedness of a Restricted Subsidiary of the Company that is not a Guarantor (to the extent of the value of the assets of such proceeds Restricted Subsidiary); or (ii) to purchase Replacement Assets (provided that such Replacement Assets shall be pledged as Collateral under the Security Documents and in accordance with the Indenture and the Security Documents substantially simultaneously with such purchase to the extent that the assets the subject of such Asset Sale constituted Collateral). Pending the final application of any such Net Proceeds, the Company or such Restricted Subsidiary may temporarily reduce revolving credit borrowings or otherwise invest such Net Proceeds in any manner that is not otherwise required prohibited by this Indenture. On the 366th day after an Asset Sale or such earlier date, if any, as the Issuers determine not to prepay apply the Forbearance Period Advances, then Borrower shall prepay the Forbearance Period Advances Net Proceeds relating to such Asset Sale as set forth in Section 3(i4.10(b) hereof in (each such date being referred as an “Excess Proceeds Trigger Date”), such aggregate amount equal of Net Proceeds that has not been applied on or before the Excess Proceeds Trigger Date as permitted pursuant to Section 4.10(b) (“Excess Proceeds”) shall be applied by the amount not so paid. Issuers to make an offer (an “Net Asset Sale Proceeds” means, Offer”) to all Holders of Notes and all holders of other Pari Passu Indebtedness containing provisions similar to those set forth in the Indenture with respect to offers to purchase with the proceeds of sales of assets, to purchase the maximum principal amount of Notes and such other Pari Passu Indebtedness that may be purchased out of the Excess Proceeds. The offer price in any Asset Sale Offer shall be equal to 100% of the principal amount of the Notes and such other Pari Passu Indebtedness plus accrued and unpaid interest, if any, to the date of purchase, and shall be payable in cash. The Issuers may defer the Asset Sale Offer until there are aggregate unutilized Excess Proceeds equal to or in excess of $30.0 million resulting from one or more Asset Sales, at which time the entire unutilized amount of Excess Proceeds (not only the amount in excess of $30.0 million) shall be applied as hereinafter defined)provided in Section 4.10(c) of the Indenture. If any Excess Proceeds remain after consummation of an Asset Sale Offer, an the Company and its Restricted Subsidiaries may use such Excess Proceeds for any purpose not otherwise prohibited by this Indenture. If the aggregate principal amount equal to: (1) cash payments received by Borrower or any of its Subsidiaries from Notes and such Asset Sale, minus (2) any bona fide direct costs and expenses incurred in connection with other Pari Passu Indebtedness tendered into such Asset Sale Offer exceeds the amount of Excess Proceeds, the Notes and such other Pari Passu Indebtedness shall be purchased on a pro rata basis based on the principal amount of Notes and such other Pari Passu Indebtedness tendered. Upon completion of each Asset Sale Offer, the Excess Proceeds subject to the extent paid or payable to non-Affiliates, including (x) income or gains taxes payable or reasonably estimated to be payable by the seller as a result of any gain recognized in connection with such Asset Sale during the tax period the sale occurs, (y) payment of the obligations (other than the Loans) secured by a Lien on the assets in question, which is required shall no longer be deemed to be repaid under the terms thereof as a result of such Asset Sale, and (z) a reasonable reserve for any adjustments in respect to sale price of such assets and any indemnification payments (fixed or contingent) attributable to seller’s indemnities and representations and warranties to purchaser in respect of such Asset Sale undertaken by Borrower or any of its Subsidiaries in connection with such Asset Sale; provided that upon release of any such reserve, the amount released shall be considered Net Asset Sale Excess Proceeds). “Asset Sale” means a sale, lease or sublease (as lessor or sublessor), sale and leaseback, assignment, conveyance, transfer, license or other disposition to, or any exchange of property with, any Person (other than to or with a Credit Party), in one transaction or a series of transactions, of all or any part of any Credit Party’s businesses, assets or properties of any kind, whether real, personal, or mixed and whether tangible or intangible, whether now owned or hereafter acquired, leased or licensed, including, without limitation, the capital stock of any Credit Party, other than inventory or other assets sold or leased, or cash or cash equivalents disposed of, in each case, in the ordinary course of business. For purposes of clarification, “Asset Sale” shall (i) include (x) the sale or other disposition for value of any contracts or (y) the early termination or modification of any contract resulting in the receipt by any Credit Party of a cash payment or other consideration in exchange for such event (other than payments in the ordinary course of business for accrued and unpaid amounts due through the date of termination or modification) and (ii) exclude any taking or other disposition by means of power of eminent domain, condemnation or similar power, threat or right.
Appears in 1 contract
Sources: Indenture (Windstream Services, LLC)
Asset Sales. No later than the first business day following the date of receiptThe Company shall not, in any given month, by Borrower or and shall not permit any of its Restricted Subsidiaries to, consummate an Asset Sale unless (a) the Company or such Restricted Subsidiary, as the case may be, receives consideration at the time of such Asset Sale at least equal to the fair market value (as determined in 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 and (b) at least 75% of the consideration therefor received by the Company or such Restricted Subsidiary is in the form of cash or Cash Equivalents; provided, however, that the amount of (i) any liabilities (as shown on the Company's or such Restricted Subsidiary's most recent balance sheet) of the Company or such Restricted Subsidiary (other than contingent liabilities and liabilities that are by their terms subordinated to the Notes or any 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 and (ii) any securities, notes or other obligations received by the Company or such Restricted Subsidiary from such transferee that are converted within thirty Business Days by the Company or such Restricted Subsidiary into cash (to the extent of the cash received) shall be deemed to be cash for purposes of this Section 4.10. Notwithstanding the foregoing, the Company need not comply with the preceding clause (b) in connection with any Asset Sale in exchange for a promissory note on a basis consistent with past practice so long as the aggregate outstanding amount of all such notes at any time outstanding does not exceed 5.0% of the book value of the Company's Productive Assets (as shown on the Company's most recent balance sheet, prepared on a consolidated basis in accordance with GAAP, less accumulated depreciation and amortization) immediately after giving effect to any such Asset Sale. Within 365 days after the receipt of any Net Proceeds from an Asset Sale Sale, the Company or any such Restricted Subsidiary may apply such Net Proceeds to (a) permanently repay the principal of any Indebtedness of the Company ranking in right of payment at least pari passu with the Notes or (b) acquire (including by way of a purchase of assets or stock, merger, consolidation or otherwise) Productive Assets. 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 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 hereinafter defined) provided in excess the first sentence of this paragraph shall be deemed to constitute "Excess Proceeds." Within 30 days of each date on which the aggregate amount of Budgeted Expenses Excess Proceeds exceeds $5.0 million (as defined or the equivalent thereof in Section 15(e) hereof) as set forth in any other currency or currency unit), the most recent Budget (as defined in Section 15(e)) required to be delivered Company shall commence an Asset Sale Offer pursuant to Section 15(e) hereof, Borrower shall prepay 3.09 hereof to purchase the Forbearance Period Advances as set forth maximum principal amount of Notes that may be purchased out of Excess Proceeds at an offer price in Section 3(i) hereof cash in an aggregate amount equal to such excess amount; provided, that (A) such Net Asset Sale Proceeds shall be deposited directly by the payee thereof into a deposit account held by Borrower at Amegy Bank, N.A. and (B) if, within 30 days of Borrower’s receipt of such Net Asset Sale Proceeds, Borrower has not paid one or more such Budgeted Expenses in an aggregate amount equal to 100% of the principal amount thereof, plus accrued and unpaid interest and Liquidated Damages, if any, thereon, to the date of such proceeds not otherwise required to prepay purchase, in accordance with the Forbearance Period Advances, then Borrower shall prepay the Forbearance Period Advances as procedures set forth in Section 3(i) hereof in an amount equal to 3.09 hereof; provided, however, that, if the amount not so paid. “Net Asset Sale Proceeds” means, with respect to any Asset Sale (as hereinafter defined), an amount equal to: (1) cash payments received by Borrower or any of its Subsidiaries from such Asset Sale, minus (2) any bona fide direct costs and expenses incurred in connection with such Asset Sale to the extent paid or payable to non-Affiliates, including (x) income or gains taxes payable or reasonably estimated to be payable by the seller as a result of any gain recognized in connection with such Asset Sale during the tax period the sale occurs, (y) payment of the obligations (other than the Loans) secured by a Lien on the assets in question, which Company is required to apply such Excess Proceeds to purchase, or to offer to purchase, any Pari Passu Indebtedness, the Company shall only be repaid under required to offer to purchase the terms thereof as a result 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 SaleSale Offer is less than the amount that the Company is required to purchase, and the Company may use any remaining Excess Proceeds for general corporate purposes in any manner not prohibited by this Indenture. If the aggregate principal amount of Notes surrendered by holders thereof exceeds the amount that the Company is required to purchase, the Trustee shall select the Notes to be purchased on a pro rata basis (z) a reasonable reserve for any with such adjustments as may be deemed appropriate by the Trustee so that only Notes in respect to sale price denominations of $1,000, or integral multiples thereof, shall be purchased). Upon completion of such assets and any indemnification payments (fixed or contingent) attributable offer to seller’s indemnities and representations and warranties to purchaser in respect of such Asset Sale undertaken by Borrower or any of its Subsidiaries in connection with such Asset Sale; provided that upon release of any such reservepurchase, the amount released of Excess Proceeds shall be considered Net Asset Sale Proceeds). “Asset Sale” means a sale, lease or sublease (as lessor or sublessor), sale and leaseback, assignment, conveyance, transfer, license or other disposition to, or any exchange of property with, any Person (other than to or with a Credit Party), in one transaction or a series of transactions, of all or any part of any Credit Party’s businesses, assets or properties of any kind, whether real, personal, or mixed and whether tangible or intangible, whether now owned or hereafter acquired, leased or licensed, including, without limitation, the capital stock of any Credit Party, other than inventory or other assets sold or leased, or cash or cash equivalents disposed of, in each case, in the ordinary course of business. For purposes of clarification, “Asset Sale” shall (i) include (x) the sale or other disposition for value of any contracts or (y) the early termination or modification of any contract resulting in the receipt by any Credit Party of a cash payment or other consideration in exchange for such event (other than payments in the ordinary course of business for accrued and unpaid amounts due through the date of termination or modification) and (ii) exclude any taking or other disposition by means of power of eminent domain, condemnation or similar power, threat or rightreset at zero.
Appears in 1 contract
Sources: Indenture (American Eco Corp)
Asset Sales. No later than (a) The Company will not, and will not permit any of its Restricted Subsidiaries to, consummate an Asset Sale unless:
(1) The Company or the first business day following Restricted Subsidiary, as the date case may be, receives consideration at the time of receiptthe Asset Sale at least equal to the Fair Market Value (which shall give effect to the assumption by another Person of any liabilities as provided for in clause (2)(A) of this paragraph and which, in the case of an Asset Sale involving consideration not exceeding $100 million, need not be determined by the Board of Directors) of the assets or Equity Interests issued or sold or otherwise disposed of; and
(2) (x) at least 75% of the consideration received in such Asset Sale is in the form of cash or Cash Equivalents or (y) the Fair Market Value of all forms of consideration other than cash or Cash Equivalents received for all Asset Sales since the Issue Date does not exceed in the aggregate 10% of Consolidated Net Worth of the Company at the time each determination is made; provided that any given monthof the following items shall be deemed to be cash and Cash Equivalents for the purposes of this clause (2):
(A) the assumption of any liabilities (as shown on the Company’s or the Restricted Subsidiary’s most recent balance sheet) of the Company or any Restricted Subsidiary of the Company (other than liabilities that are by their terms subordinated to Securities issued under this Supplemental Indenture or any Subsidiary Guarantee) by the transferee of any such assets pursuant to a customary novation agreement that releases the Company or the Restricted Subsidiary from further liability;
(B) any securities, notes or other obligations received by Borrower the Company or any such Restricted Subsidiary from such transferee that are converted by the Company or the Restricted Subsidiary into cash or Cash Equivalents within 180 days following their receipt (to the extent of cash or Cash Equivalents received);
(C) other assets or rights used or useful in a Permitted Business, including, without limitation, assets or Investments of the nature or type described in clause (13) of the definition of “Permitted Investments” in Section 1.01; and
(D) accounts receivable of a business retained by the Company or any of its Restricted Subsidiaries following the sale of such business; provided, that such accounts receivable are not (i) past due more than 60 days and (ii) do not have a payment date greater than 90 days from the date of the invoice creating such accounts receivable; provided, that any Asset Sale pursuant to a condemnation, appropriation or other similar taking, including by deed in lieu of condemnation, or pursuant to the foreclosure or other enforcement of a Lien incurred not in violation of Section 4.05 or exercise by the related lienholder of rights with respect thereto, including by deed or assignment in lieu of foreclosure, shall not be required to satisfy the conditions set forth in clauses (1) and (2) of this paragraph.
(b) Within 365 days after the receipt of any Net Proceeds from an Asset Sale, the Company or the Restricted Subsidiary, as the case may be, may apply such Net Proceeds, at its option:
(1) to prepay, repay, purchase, repurchase or redeem any Senior Indebtedness of the Company or any Restricted Subsidiary of the Company;
(2) to acquire a controlling interest in another business or all or substantially all of the assets or operating line of another business, in each case engaged in a Permitted Business;
(3) to make capital expenditures; or
(4) to acquire other non-current assets to be used in a Permitted Business, including, without limitation, assets or Investments of the nature or type described in clause (13) of the definition of “Permitted Investments” in Section 1.01; provided that the Company or the applicable Restricted Subsidiary will be deemed to have complied with clause (2) or (3) of this Section 4.07(b) if, within 365 days of such Asset Sale, the Company or such Restricted Subsidiary shall have commenced and not completed or abandoned an expenditure or Investment, or entered into a binding agreement with respect to an expenditure or Investment, in compliance with such clause (2) or (3), and that expenditure or Investment is substantially completed within a date one year and six months after the date of such Asset Sale. Pending the final application of any such Net Proceeds, the Company may temporarily reduce Indebtedness under any Credit Facility or otherwise expend or invest such Net Proceeds in any manner that is not prohibited by this Supplemental Indenture. Any Net Proceeds from Asset Sales described in this paragraph that are not applied or invested as provided in the first sentence of this paragraph shall be deemed to constitute “Excess Asset Sale Proceeds Proceeds.”
(as hereinafter definedc) in excess of When the aggregate amount of Budgeted Expenses (as defined in Section 15(e) hereof) as set forth in the most recent Budget (as defined in Section 15(e)) required to be delivered pursuant to Section 15(e) hereof, Borrower shall prepay the Forbearance Period Advances as set forth in Section 3(i) hereof in an aggregate amount equal to such excess amount; provided, that (A) such Net Excess Asset Sale Proceeds exceeds $30 million, the Company shall be deposited directly by make an offer to the payee thereof into Holders of Securities and the holders of any other Senior Indebtedness that is subject to requirements with respect to the application of net proceeds from asset sales that are substantially similar to those contained in this Section 4.07 (an “Asset Sale Offer”) to purchase on a deposit account held by Borrower at Amegy Bank, N.A. pro rata basis (with the Excess Asset Sale Proceeds prorated between the Holders of the Securities and (B) if, within 30 days of Borrower’s receipt such holders of such Net other Senior Indebtedness based upon outstanding aggregate principal amounts) the maximum principal amount of the Securities and such other Senior Indebtedness that may be purchased or prepaid, as applicable, out of the prorated Excess Asset Sale Proceeds, Borrower has not paid one or more such Budgeted Expenses at an offer price in cash in an aggregate amount equal to 100% of the principal amount thereof (or accreted amount in the case of such proceeds not otherwise required any Senior Indebtedness issued with original issue discount) plus accrued and unpaid interest thereon to prepay the Forbearance Period Advancesdate of purchase (the “Asset Sale Payment”), then Borrower shall prepay in accordance with the Forbearance Period Advances as procedures set forth in this Section 3(i4.07. To the extent that the aggregate principal amount of Securities and other Senior Indebtedness tendered (and electing to be redeemed or repaid, as applicable) hereof pursuant to an Asset Sale Offer is less than the Excess Asset Sale Proceeds, the Company and its Restricted Subsidiaries may use any remaining Excess Asset Sale Proceeds for general corporate purposes and any other purpose not prohibited by this Supplemental Indenture. If the aggregate principal amount of the Securities and such other Senior Indebtedness surrendered by holders thereof exceeds the amount of the prorated Excess Asset Sale Proceeds, the Company shall select the Securities and such other Senior Indebtedness to be purchased on a pro rata basis. Upon completion of each Asset Sale Offer, the amount of Excess Asset Sale Proceeds shall be reset at zero.
(d) When the Company becomes obligated to make an Asset Sale Offer, the Company will mail a notice to each Holder describing the transaction or transactions that constitute the Asset Sale and offering to repurchase Securities on the date (the “Asset Sale Payment Date”) specified in such notice, which date will be no earlier than 30 days nor later than 60 days from the date such notice is mailed, pursuant to the procedures required by this Supplemental Indenture and described in such notice.
(e) On the Asset Sale Payment Date, the Company will, to the extent lawful:
(1) accept for payment all Securities or portions thereof properly tendered pursuant to the Asset Sale Offer, subject to proration based on the amount of Excess Asset Sale Proceeds pursuant to clause (c) above of this Section 4.07;
(2) deposit with the Paying Agent an amount equal to the amount not so paid. “Net of Excess Asset Sale Proceeds” meansProceeds that, after giving effect to proration with respect holders of other Senior Indebtedness pursuant to clause (c) above of this Section 4.07, is allocable to the Securities or portions thereof so tendered (or, if less, the aggregate Asset Sale Payment for all Securities validly tendered and not withdrawn); and
(3) deliver or cause to be delivered to the Trustee the Securities so accepted together with an Officers’ Certificate stating the aggregate principal amount of Securities or portions thereof being purchased by the Company.
(f) The Paying Agent will promptly mail (or cause to be transferred through the facilities of the Depositary) to each Holder of Securities so tendered and not withdrawn and accepted for payment in accordance with this Section 4.07, the Asset Sale Payment for such tendered Securities, and the Trustee will promptly authenticate and mail (or cause to be transferred by book entry) to each Holder a new Security equal in principal amount to any Asset Sale (as hereinafter defined), an amount equal to: (1) cash payments received by Borrower or any of its Subsidiaries from such Asset Sale, minus (2) any bona fide direct costs and expenses incurred in connection with such Asset Sale to the extent paid or payable to non-Affiliates, including (x) income or gains taxes payable or reasonably estimated to be payable by the seller as a result of any gain recognized in connection with such Asset Sale during the tax period the sale occurs, (y) payment unpurchased portion of the obligations (other than the Loans) secured Securities surrendered, if any, by a Lien on the assets in question, which is required to be repaid under the terms thereof as a result of such Asset Sale, and (z) a reasonable reserve for any adjustments in respect to sale price of such assets and any indemnification payments (fixed or contingent) attributable to seller’s indemnities and representations and warranties to purchaser in respect of such Asset Sale undertaken by Borrower or any of its Subsidiaries in connection with such Asset SaleHolder; provided that upon release each such new Security will be in a minimum principal amount of any such reserve, the amount released shall be considered Net Asset Sale Proceeds). “Asset Sale” means a sale, lease $2,000 or sublease (as lessor or sublessor), sale and leaseback, assignment, conveyance, transfer, license or other disposition to, or any exchange an integral multiple of property with, any Person (other than to or with a Credit Party), $1,000 in one transaction or a series of transactions, of all or any part of any Credit Party’s businesses, assets or properties of any kind, whether real, personal, or mixed and whether tangible or intangible, whether now owned or hereafter acquired, leased or licensed, including, without limitation, the capital stock of any Credit Party, other than inventory or other assets sold or leased, or cash or cash equivalents disposed of, in each case, in the ordinary course of business. For purposes of clarification, “Asset Sale” shall (i) include (x) the sale or other disposition for value of any contracts or (y) the early termination or modification of any contract resulting in the receipt by any Credit Party of a cash payment or other consideration in exchange for such event (other than payments in the ordinary course of business for accrued and unpaid amounts due through the date of termination or modification) and (ii) exclude any taking or other disposition by means of power of eminent domain, condemnation or similar power, threat or rightexcess thereof.
Appears in 1 contract
Sources: Amended First Supplemental Indenture (Key Energy Services Inc)
Asset Sales. No later than (a) The Company will not, and will not permit any of the first business day following Restricted Subsidiaries to, consummate an Asset Sale unless:
(1) the date Company or the applicable Restricted Subsidiary, as the case may be, receives consideration at the time of receiptsuch Asset Sale at least equal to the Fair Market Value of the assets sold or otherwise disposed of;
(2) at least 75% of the consideration received by the Company or the Restricted Subsidiary, as the case may be, from such Asset Sale shall be in the form of cash or Cash Equivalents; provided that the amount of:
(a) any given monthliabilities (as shown on the Parent’s, by Borrower the Company’s or such Restricted Subsidiary’s most recent balance sheet or in the footnotes thereto), of the Company or any of its Restricted Subsidiaries (other than contingent liabilities and liabilities that are by their terms subordinated to the Notes) that are assumed by the transferee of any Net such assets shall be deemed to be cash for purposes of this clause (2); and
(b) any securities, notes or other obligations received by the Company or any such Restricted Subsidiary from such transferee that are converted by the Company or such Restricted Subsidiary into cash (to the extent of the cash received) within 180 days following the closing of such Asset Sale shall be deemed to be cash for purposes of this clause (2); and
(3) upon the consummation of an Asset Sale, the Company shall apply, or cause such Restricted Subsidiary to apply, the Net Cash Proceeds relating to such Asset Sale within 360 days after receipt thereof either to:
(A) repay Senior Debt or Guarantor Senior Debt or, in the case of an Asset Sale by a Restricted Subsidiary that is not a Guarantor, to repay Indebtedness of such Restricted Subsidiary and, if the Indebtedness repaid is revolving credit Indebtedness, to correspondingly permanently reduce commitments with respect thereto,
(B) acquire Replacement Assets, or
(C) a combination of prepayment and acquisition permitted by the foregoing clauses (3)(A) and (3)(B).
(b) On the 361st day after an Asset Sale or such earlier date, if any, as hereinafter defined) in excess the Board of Directors of the aggregate amount Company or of Budgeted Expenses (as defined in Section 15(e) hereof) such Restricted Subsidiary determines not to apply the Net Cash Proceeds relating to such Asset Sale as set forth in the most recent Budget clauses (as defined in 3)(A), (3)(B) and (3)(C) of Section 15(e4.06(a) (each, a “Net Proceeds Offer Trigger Date”)) required to be delivered pursuant to Section 15(e) hereof, Borrower shall prepay the Forbearance Period Advances as set forth in Section 3(i) hereof in an such aggregate amount of Net Cash Proceeds which have not been applied on or before such Net Proceeds Offer Trigger Date as permitted in clauses (3)(A), (3)(B) and (3)(C) of the preceding paragraph (each a “Net Proceeds Offer Amount”) shall be applied by the Issuers to make an offer to purchase (the “Net Proceeds Offer”) to all Holders and, to the extent required by the terms of any Pari Passu Debt, an offer to purchase to all holders of such Pari Passu Debt, 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, from all Holders (and holders of such Pari Passu Debt) on a pro rata basis, that principal amount of Notes (and Pari Passu Debt) equal to such excess amount; provided, that (A) such the Net Asset Sale Proceeds shall be deposited directly by the payee thereof into Offer Amount at a deposit account held by Borrower at Amegy Bank, N.A. and (B) if, within 30 days of Borrower’s receipt of such Net Asset Sale Proceeds, Borrower has not paid one or more such Budgeted Expenses in an aggregate amount price equal to 100% of the principal amount of the Notes to be purchased, plus accrued and unpaid interest, if any, thereon to the date of purchase (and in the case of Pari Passu Debt, the redemption price for such proceeds not otherwise required to prepay the Forbearance Period Advances, then Borrower shall prepay the Forbearance Period Advances as Pari Passu Debt set forth in Section 3(i) hereof in an amount equal the related documentation governing such Indebtedness, plus accrued and unpaid interest, if any, thereon to the amount not so paid. “Net date of purchase); provided, however, that if at any time any non-cash consideration received by the Company or any Restricted Subsidiary, as the case may be, in connection with any Asset Sale Proceeds” means, is converted into or sold or otherwise disposed of for cash (other than interest received with respect to any such non-cash consideration) or Cash Equivalents, 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 4.06.
(c) The Issuers may defer the Net Proceeds Offer until there is an aggregate unutilized Net Proceeds Offer Amount equal to or in excess of $10.0 million resulting from one or more Asset Sales or deemed Asset Sales (at which time, the entire unutilized Net Proceeds Offer Amount, and not just the amount in excess of $10.0 million, shall be applied as hereinafter definedrequired pursuant to this paragraph). Pending the final application of any Net Cash Proceeds, the Company or such Restricted Subsidiary may temporarily reduce revolving credit borrowings or otherwise invest the Net Cash Proceeds in any manner that is not prohibited by this Indenture. The first such date the aggregate unutilized Net Proceeds Offer Amount is equal to or in excess of $10.0 million shall be treated for this purpose as the Net Proceeds Offer Trigger Date.
(d) In the event of the transfer of substantially all (but not all) of the property and assets of the Company and the Restricted Subsidiaries as an entirety to a Person in a transaction permitted under Article 6 which transaction does not constitute a Change of Control, the successor corporation shall be deemed to have sold the properties and assets of the Company and the Restricted Subsidiaries not so transferred for purposes of this Section 4.06, and shall comply with the provisions of this Section 4.06 with respect to such deemed sale as if it were an Asset Sale. In addition, the Fair Market Value of such properties and assets of the Company or the Restricted Subsidiaries deemed to be sold shall be deemed to be Net Cash Proceeds for purposes of this Section 4.06.
(e) Each Net Proceeds Offer will be mailed to the record Holders as shown on the register of Holders within 30 days following the Net Proceeds Offer Trigger Date, with a copy to the Trustee, and shall comply with the procedures set forth in this Indenture. Upon receiving notice of the Net Proceeds Offer, Holders may elect to tender their Notes in whole or in part in integral multiples of $1,000 principal amount at maturity in exchange for cash. If any proceeds remain after consummation of the purchase of all properly tendered and not withdrawn Notes pursuant to a Net Proceeds Offer, the Company may use such remaining proceeds for any purpose not otherwise prohibited by this Indenture. To the extent Holders properly tender Notes and holders of Pari Passu Debt properly tender such Indebtedness in an amount equal to: exceeding the Net Proceeds Offer Amount, the tendered Notes and Pari Passu Debt will be purchased on a pro rata basis based on aggregate amounts of Notes and Pari Passu Debt tendered. A Net Proceeds Offer shall remain open for a period of 20 Business Days or such longer period as may be required by law. Upon completion of each Net Proceeds Offer, the Net Proceeds Offer Amount shall be reset at zero.
(1f) cash payments received by Borrower or The Issuers will comply with the requirements of Rule 14e-1 under the Exchange Act and any of its Subsidiaries from other securities laws and regulations to the extent such Asset Sale, minus (2) any bona fide direct costs laws and expenses incurred regulations are applicable in connection with such Asset Sale the repurchase of Notes pursuant to a Net Proceeds Offer. To the extent paid or payable to non-Affiliates, including (x) income or gains taxes payable or reasonably estimated to be payable by that the seller as a result provisions of any gain recognized in connection securities laws or regulations conflict with such Asset Sale during the tax period the sale occurs, (y) payment of the obligations (other than the Loans) secured by a Lien on the assets in question, which is required to be repaid under the terms thereof as a result of such Asset Sale, and (z) a reasonable reserve for any adjustments in respect to sale price of such assets and any indemnification payments (fixed or contingent) attributable to seller’s indemnities and representations and warranties to purchaser in respect of such Asset Sale undertaken by Borrower or any of its Subsidiaries in connection with such Asset Sale; provided that upon release of any such reservethis Section 4.06, the amount released Issuers shall comply with the applicable securities laws and regulations and shall not be considered Net Asset Sale Proceeds). “Asset Sale” means a sale, lease or sublease (as lessor or sublessor), sale and leaseback, assignment, conveyance, transfer, license or other disposition to, or any exchange of property with, any Person (other than deemed to or with a Credit Party), in one transaction or a series of transactions, of all or any part of any Credit Party’s businesses, assets or properties of any kind, whether real, personal, or mixed and whether tangible or intangible, whether now owned or hereafter acquired, leased or licensed, including, without limitation, the capital stock of any Credit Party, other than inventory or other assets sold or leased, or cash or cash equivalents disposed of, in each case, in the ordinary course of business. For purposes of clarification, “Asset Sale” shall (i) include (x) the sale or other disposition for value of any contracts or (y) the early termination or modification of any contract resulting in the receipt have breached their obligations under this Section 4.06 by any Credit Party of a cash payment or other consideration in exchange for such event (other than payments in the ordinary course of business for accrued and unpaid amounts due through the date of termination or modification) and (ii) exclude any taking or other disposition by means of power of eminent domain, condemnation or similar power, threat or rightvirtue thereof.
Appears in 1 contract
Sources: Indenture (Rural Metro Corp /De/)
Asset Sales. No later than the first business day following the date of receiptThe Company shall not, in any given month, by Borrower or and shall not permit any of its Subsidiaries of to, directly or indirectly, consummate any Net Asset Sale Proceeds unless:
(as hereinafter defineda) in excess the Company or such Subsidiary receives consideration at the time of such Asset Sale at least equal to the Fair Market Value of the aggregate amount of Budgeted Expenses (as defined in Section 15(e) hereof) as set forth in the most recent Budget (as defined in Section 15(e)) required to be delivered pursuant to Section 15(e) hereof, Borrower shall prepay the Forbearance Period Advances as set forth in Section 3(i) hereof in an aggregate amount equal Property subject to such excess amount; provided, that Asset Sale;
(Ab) such Net Asset Sale Proceeds shall be deposited directly by the payee thereof into a deposit account held by Borrower at Amegy Bank, N.A. and (B) if, within 30 days of Borrower’s receipt of such Net Asset Sale Proceeds, Borrower has not paid one or more such Budgeted Expenses in an aggregate amount equal to 100least 75% of the amount of such proceeds not otherwise required to prepay the Forbearance Period Advances, then Borrower shall prepay the Forbearance Period Advances as set forth in Section 3(i) hereof in an amount equal consideration paid to the amount not so paid. “Net Asset Sale Proceeds” means, with respect to any Asset Sale (as hereinafter defined), an amount equal to: (1) cash payments received by Borrower Company or any of its Subsidiaries from such Asset Sale, minus (2) any bona fide direct costs and expenses incurred Subsidiary in connection with such Asset Sale to is in the extent paid form of cash or payable to non-Affiliates, including (x) income Cash Equivalents or gains taxes payable or reasonably estimated to be payable the assumption by the seller as a result purchaser of any gain recognized in connection with such Asset Sale during the tax period the sale occurs, (y) payment liabilities of the obligations (other than the Loans) secured by a Lien on the assets in question, which is required to be repaid under the terms thereof as a result of such Asset Sale, and (z) a reasonable reserve for any adjustments in respect to sale price of such assets and any indemnification payments (fixed or contingent) attributable to seller’s indemnities and representations and warranties to purchaser in respect of such Asset Sale undertaken by Borrower Company or any of its Subsidiaries in connection with such Asset Sale; provided that upon release of any such reserve, the amount released shall be considered Net Asset Sale Proceeds). “Asset Sale” means a sale, lease or sublease (as lessor or sublessor), sale and leaseback, assignment, conveyance, transfer, license or other disposition to, or any exchange of property with, any Person (other than contingent liabilities or liabilities that are by their terms subordinated to the Notes or the applicable Guarantee) as a result of which the Company and its Subsidiaries are no longer obligated with respect to such liabilities; and
(c) the Company delivers an Officers’ Certificate to the Trustee certifying that such Asset Sale complies with the foregoing clauses (a) and (b). The Net Available Cash (or any portion thereof) from Asset Sales may be applied by the Company or any of its Subsidiaries, to the extent the Company or such Subsidiary elects (or is required by the terms of any Debt) to reinvest in Additional Assets (including by means of an Investment in Additional Assets by any Subsidiary of the Company with Net Available Cash received by the Company or another Subsidiary of the Company). Any Net Available Cash from an Asset Sale not applied in accordance with the preceding paragraph within 120 days from the date of the receipt of such Net Available Cash shall constitute “Excess Proceeds”. When the aggregate amount of Excess Proceeds exceeds $5.0 million (taking into account income earned on such Excess Proceeds, if any), the Company will be required to make an offer to repurchase (the “Asset Sale Offer”) the Notes, which offer shall be in the amount of the Allocable Excess Proceeds (rounded to the nearest RMB1.0 million), on a Credit Partypro rata basis according to principal amount, at a purchase price equal to 105% of the principal amount thereof, plus accrued and unpaid interest if any to the Purchase Date (subject to the right of holders of record on the relevant Regular Record Date to receive interest due on the relevant Interest Payment Date), in one transaction accordance with the procedures (including prorating in the event of oversubscription) set forth in Section 3.06. To the extent that any portion of the amount of Net Available Cash remains after compliance with the preceding sentence and provided that all holders of Notes have been given the opportunity to tender their Notes for repurchase in accordance with Section 3.06, the Company or a series of transactions, of all such Subsidiary may use such remaining amount first to Repay the Credit Facilities or any part other Senior Debt of the Company or any Guarantor or Debt of any Credit Party’s businesses, assets or properties Subsidiary of any kind, whether real, personal, or mixed and whether tangible or intangible, whether now owned or hereafter acquired, leased or licensed, including, without limitation, the capital stock of any Credit Party, other than inventory or other assets sold or leased, or cash or cash equivalents disposed ofCompany that is not a Guarantor (excluding, in each any such case, in any Debt owed to the ordinary course Company or an Affiliate of business. For purposes the Company), and only thereafter, for any purpose permitted by this Indenture, and the amount of clarification, “Asset Sale” shall (i) include (x) the sale or other disposition for value of any contracts or (y) the early termination or modification of any contract resulting in the receipt by any Credit Party of a cash payment or other consideration in exchange for such event (other than payments in the ordinary course of business for accrued and unpaid amounts due through the date of termination or modification) and (ii) exclude any taking or other disposition by means of power of eminent domain, condemnation or similar power, threat or rightExcess Proceeds will be reset to zero.
Appears in 1 contract
Sources: Indenture (China Natural Gas, Inc.)
Asset Sales. No later than the first business day third Business Day following the date of receipt, in receipt by any given month, by Borrower Credit Party or any of its Subsidiaries of any Net Asset Sale Proceeds (as hereinafter definedit being understood that such Net Asset Sale Proceeds shall be promptly deposited into and thereafter maintained in a Controlled Account which is a Term Loan Priority Account (and in any event no later than the next Business Day) in excess of the aggregate amount of Budgeted Expenses (as defined in Section 15(e) hereof) as set forth in the most recent Budget (as defined in Section 15(efollowing receipt thereof)) required to be delivered pursuant to Section 15(e) hereof, Borrower Companies shall prepay the Forbearance Period Advances Loans as set forth in Section 3(i2.14(b) hereof in an aggregate amount equal to such excess amountNet Asset Sale Proceeds; provided, that (i) so long as no Default or Event of Default shall have occurred and be continuing, and (ii) (A) such in the case of Net Asset Sale Proceeds resulting from Asset Sales (other than in respect of Asset Sales of the Windset Investment (which shall solely be deposited directly by the payee thereof into a deposit account held by Borrower at Amegy Bank, N.A. and subject of clause (B) ifbelow or the second to last sentence of this Section 2.13(a)) or any Permitted Curation Sale (which shall solely be the subject of clause (C) below or the second to last sentence of this Section 2.13(a))), within 30 days to the extent that, after giving effect to receipt of Borrower’s receipt such Net Asset Proceeds, the aggregate Net Asset Sale Proceeds from all such Asset Sales during the period commencing on the Closing Date and ending on such date of determination do not exceed $5,000,000, (B) in the case of Net Asset Sale Proceeds resulting from Asset Sales of the Windset Investment, an amount of such Net Asset Sale Proceeds, Borrower has if any, that is not paid one subject to repayment in accordance with the second to last sentence of this Section 2.13(a) or more (C) in the case of Net Asset Sale Proceeds resulting from Asset Sales constituting a Permitted Curation Sale, an amount of such Budgeted Expenses Net Asset Sale Proceeds, if any, that is not subject to repayment in an accordance with the second to last sentence of this Section 2.13(a) (such amounts, “Asset Sale Reinvestment Amounts”), upon delivery of a written notice to Administrative Agent, Companies shall have the option to invest such Asset Sale Reinvestment Amounts within three hundred sixty-five (365) days of receipt thereof (as extended, if at all, in accordance with the proviso below, the “Asset Sale Reinvestment Period”) in long-term productive assets that constitute Term Loan Priority Collateral of the general type used in the business of (I) Companies, in respect of Asset Sale Reinvestment Amounts generated in accordance with clause (ii)(A) above (so long as any such individual or aggregate amount equal to 100% of investment in the amount of $5,000,000 or more has been consented to by Administrative Agent and the Requisite Lenders) and (II) Lifecore or any of its Subsidiaries, in respect of any Asset Sale Reinvestment Amounts generated in accordance with clauses (ii)(B) or (ii)(C) above (such proceeds assets, “Additional Assets”); provided further, that the Asset Sale Reinvestment Period shall be extended for up to an additional one hundred eighty (180) days in respect of any Asset Sale Reinvestment Amounts where the Credit Parties have, on or before the expiration of the initial Asset Sale Reinvestment Period, entered into a definitive agreement for the purchase or other acquisition of Additional Assets. In the event that the Asset Sale Reinvestment Amounts are not otherwise required reinvested in accordance with the provisions above prior to prepay the Forbearance earliest of (i) the last day of such Asset Sale Reinvestment Period Advancesand (ii) the date of the occurrence of an Event of Default, then Borrower Administrative Agent shall prepay apply such Asset Sale Reinvestment Amounts to the Forbearance Period Advances Obligations as set forth in Section 3(i2.14(b). Prior to entering into any Asset Sale of assets which constitute Term Loan Priority Collateral, the Credit Party Representative shall provide not less than three (3) hereof in an amount equal to Business Days’ prior written notice thereof and the amount not so paid. “Net Asset Sale Proceeds” means, with respect Proceeds of such Assets shall be deposited into a deposit account subject to any Asset Sale (as hereinafter defined), a Control Agreement whereby Administrative Agent has a First Priority security interest therein. If Administrative Agent does not receive prior written notice that Term Loan Priority Collateral is the subject of an amount equal to: (1) cash payments received by Borrower or any of its Subsidiaries from such Asset Sale, minus (2) any bona fide direct costs then the Credit Parties shall be deemed to have represented and expenses incurred in connection with warranted to Administrative Agent on the date such Asset Sale is consummated that none of the assets subject to the extent paid or payable to non-Affiliates, including (x) income or gains taxes payable or reasonably estimated to be payable by the seller as a result of any gain recognized in connection with such Asset Sale during constitute Term Loan Priority Collateral. In addition to the tax period the sale occursforegoing, (yi) payment 100% of the obligations (other than the Loans) secured by a Lien on the assets in question, which is required to be repaid under the terms thereof as a result of such Net Asset Sale Proceeds resulting from an Asset Sale, and (z) a reasonable reserve for any adjustments in respect to sale price whole or in part, of such assets and any indemnification payments (fixed or contingent) attributable to seller’s indemnities and representations and warranties to purchaser in respect of such Asset Sale undertaken by Borrower or any of its Subsidiaries in connection with such Asset Sale; provided that upon release of any such reserve, the amount released Windset Investment shall be considered Net Asset Sale Proceeds). used to prepay the Loans (a “Asset Windset Sale” means a sale, lease or sublease (as lessor or sublessor), sale and leaseback, assignment, conveyance, transfer, license or other disposition to, or any exchange of property with, any Person (other than to or with a Credit Party), in one transaction or a series of transactions, of all or any part of any Credit Party’s businesses, assets or properties of any kind, whether real, personal, or mixed and whether tangible or intangible, whether now owned or hereafter acquired, leased or licensed, including, without limitation, the capital stock of any Credit Party, other than inventory or other assets sold or leased, or cash or cash equivalents disposed of, in each case, in the ordinary course of business. For purposes of clarification, “Asset Sale” shall (i) include (x) the sale or other disposition for value of any contracts or (y) the early termination or modification of any contract resulting in the receipt by any Credit Party of a cash payment or other consideration in exchange for such event (other than payments in the ordinary course of business for accrued and unpaid amounts due through the date of termination or modification”) and (ii) exclude 100% of the Net Asset Sale Proceeds resulting from a Permitted Curation Sale shall be used to prepay the Loans; provided that, so long as no Default or Event of Default shall have occurred and be continuing, (x) in the case of the foregoing clause (i), if after giving effect to any taking or other disposition by means such prepayment of power the Loans from 100% of eminent domainsuch Net Asset Sale Proceeds, condemnation or similar powerif made, threat or right.the Asset Sale Leverage Ratio would be less than 4.37 to 1.00, Companies shall only be required to prepay the Loans in an amount of such Net Asset Sale Proceeds such that, after giving effect to such prepayment of the Loans from such Net Asset Sale Proceeds, the Asset Sale Leverage Ratio would be equal to 4.37 to 1.00 (with the remainder of such Net Asset Sale Proceeds constituting Asset Sale Reinvestment Amounts subject to reinvestment in accordance with the provisions of this clause (x);
Appears in 1 contract
Sources: Credit and Guaranty Agreement (Lifecore Biomedical, Inc. \De\)
Asset Sales. No later (a) The Company will not, and will not permit any of its Restricted Subsidiaries to, consummate an Asset Sale, unless:
(i) the Company or such Restricted Subsidiary, as the case may be, receives consideration (including by way of relief from, or any Person assuming responsibilities for, any liabilities, contingent or otherwise) at the time of such Asset Sale at least equal to the fair market value (at the time of contractually agreeing to such Asset Sale) of the assets sold or otherwise disposed of; and
(ii) except in the case of a Permitted Asset Swap, at least 75% of the consideration for asset sales in excess of $25.0 million therefor received by the Company or such Restricted Subsidiary, as the case may be, is in the form of Cash Equivalents; provided that the amount of:
(A) any liabilities (as shown on the Company’s or such Restricted Subsidiary’s most recent balance sheet or in the footnotes thereto) of the Company or such Restricted Subsidiary, other than liabilities that are by their terms subordinated to the first business day Notes, that are assumed by the transferee of any such assets and for which the Company and all of its Restricted Subsidiaries have been validly released by all creditors in writing;
(B) any securities, notes or other obligations or assets received by the Company or such Restricted Subsidiary from such transferee that are converted by the Company or such Restricted Subsidiary into Cash Equivalents (to the extent of the Cash Equivalents received) within 180 days following the date closing of receiptsuch Asset Sale; and
(C) any Designated Non-cash Consideration received by the Company or such Restricted Subsidiary in such Asset Sale having an aggregate fair market value, taken together with all other Designated Non-cash Consideration received pursuant to this Section 4.10(a)(ii)(C) that is at that time outstanding, not to exceed the greater of (x) $75.0 million and (y) 2.50% of Total Assets at the time of the receipt of such Designated Non-cash Consideration, with the fair market value of each item of Designated Non-cash Consideration being measured at the time received and without giving effect to subsequent changes in value; shall be deemed to be Cash Equivalents for purposes of this Section 4.10(a)(ii) and for no other purpose.
(b) Within 365 days after the receipt of any Net Proceeds from any Asset Sale, the Company or such Restricted Subsidiary, at its option, may apply an amount equal to the amount of such Net Proceeds from such Asset Sale:
(i) to repay, repurchase or redeem any Senior Debt provided that such repayment, repurchase or redemption may close up to 45 days after the end of such 365-day period;:
(ii) to make (A) an Investment in any given month, by Borrower one or more businesses; provided that such Investment in any business is in the form of the acquisition of Capital Stock and results in the Company or any of its Subsidiaries 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) capital expenditures or (C) acquisitions of other assets, in the case of each of clauses (A), (B) and (C) of this Section 4.10(b)(ii), used or useful in a Similar Business;
(iii) to make an Investment in (A) any one or more businesses; provided that such Investment in any business is in the form of the acquisition of Capital Stock and results in the Company or any of its Restricted Subsidiaries, as the case may be, owning an amount of the Capital Stock of such business such that it constitutes a Restricted Subsidiary or increases the Issuers’ direct or indirect percentage ownership of the Capital Stock of a Restricted Subsidiary, (B) properties or (C) acquisitions of other assets that, in the case of each of clauses (A), (B) and (C) of this Section 4.10(b)(iii), replace the businesses, properties and/or assets that are the subject of such Asset Sale; or
(iv) any combination of Section 4.10(b)(i), Section 4.10(b)(ii) or Section 4.10(b)(iii) hereof. provided that, in the case of Sections 4.10(b)(ii) and 4.10(b)(iii) hereof, a binding commitment entered into not later than such 365th day shall extend the period for such Investment or other payment for an additional 270 days after the end of such 365-day period so long as the Company or such Restricted Subsidiary enters into such commitment with the good faith expectation that such Net Asset Sale Proceeds will be applied to satisfy such commitment within 270 days of such commitment (an “Acceptable Commitment”) and, in the event any Acceptable Commitment is later cancelled or terminated for any reason before such Net Proceeds are applied in connection therewith, the Company or such Restricted Subsidiary enters into another Acceptable Commitment (a “Second Commitment”) within such 270-day period; provided, further, that (x) if any Second Commitment is later cancelled or terminated for any reason before such Net Proceeds are applied or (y) such Net Proceeds are not actually so invested or paid in accordance with Sections 4.10(b)(ii) and 4.10(b)(iii) hereof by the end of such 270-day period, then such Net Proceeds shall constitute Excess Proceeds (as hereinafter defineddefined below) on the date of such cancellation or termination, or such 270th day, as applicable.
(c) Any Net Proceeds from the Asset Sale that are not invested or applied as provided and within the time period set forth in excess of Section 4.10(b) hereof will be deemed to constitute “Excess Proceeds.” When the aggregate amount of Budgeted Expenses Excess Proceeds exceeds $40.0 million, the Company shall make an offer to all Holders and, if required by the terms of any Indebtedness that is pari passu with the Notes (as defined in Section 15(e) hereof) as set forth in “Pari Passu Indebtedness”), to the most recent Budget holders of such Pari Passu Indebtedness (as defined in Section 15(ean “Asset Sale Offer”)) required , to be delivered pursuant to Section 15(e) hereof, Borrower shall prepay purchase the Forbearance Period Advances as set forth in Section 3(i) hereof maximum aggregate principal amount of the Notes and such Pari Passu Indebtedness that is in an aggregate amount equal to such excess amount; providedat least $2,000, that (A) such Net Asset Sale may be purchased out of the Excess Proceeds shall be deposited directly by the payee thereof into a deposit account held by Borrower at Amegy Bank, N.A. and (B) if, within 30 days of Borrower’s receipt of such Net Asset Sale Proceeds, Borrower has not paid one or more such Budgeted Expenses an offer price in cash in an aggregate amount equal to 100% of the principal amount thereof (or accreted value thereof, if less), plus accrued and unpaid interest, if any, to, but not including, the date fixed for the closing of such proceeds not otherwise required to prepay offer, in accordance with the Forbearance Period Advances, then Borrower shall prepay the Forbearance Period Advances as procedures set forth in Section 3(i) hereof in this Indenture. The Company will commence an amount equal Asset Sale Offer with respect to Excess Proceeds within ten Business Days after the date that Excess Proceeds exceed $40.0 million by delivering the notice required pursuant to the amount not so paidterms of this Indenture, with a copy to the Trustee. “Net Asset Sale Proceeds” means, The Company may satisfy the foregoing obligations with respect to any Net Proceeds from an Asset Sale by making an Asset Sale Offer with respect to such Net Proceeds prior to the expiration of the relevant 365 days (as hereinafter defined)or such longer period provided above) or with respect to Excess Proceeds of $40.0 million or less. To the extent that the aggregate amount of Notes and such Pari Passu Indebtedness tendered pursuant to an Asset Sale Offer is less than the Excess Proceeds, the Company may use any remaining Excess Proceeds for general corporate purposes, subject to other covenants contained in this Indenture. If the aggregate principal amount of Notes or the Pari Passu Indebtedness surrendered by such holders thereof exceeds the amount of Excess Proceeds, the Trustee shall select the Notes and the Company shall select such Pari Passu Indebtedness to be purchased on a pro rata basis based on the accreted value or principal amount of the Notes or such Pari Passu Indebtedness tendered (with adjustments so that only Notes in an amount equal to: (1) cash payments received by Borrower or not less than $2,000 are purchased). Upon completion of any of its Subsidiaries from such Asset SaleSale Offer, minus the amount of Excess Proceeds that resulted in the Asset Sale Offer shall be reset to zero. The Trustee shall not be liable for selections made in accordance with this paragraph.
(2d) Pending the final application of any bona fide direct costs Net Proceeds pursuant to this Section 4.10, the holder of such Net Proceeds may apply such Net Proceeds temporarily to reduce Indebtedness outstanding under a revolving credit facility or otherwise invest such Net Proceeds in any manner not prohibited by this Indenture.
(e) The Company will comply with the requirements of Rule 14e-1 under the Exchange Act and expenses incurred any other securities laws and regulations thereunder to the extent such laws or regulations are applicable in connection with such the repurchase of the Notes pursuant to an Asset Sale to Offer. To the extent paid or payable to non-Affiliates, including (x) income or gains taxes payable or reasonably estimated to be payable by that the seller as a result provisions of any gain recognized securities laws or regulations conflict with the provisions of this Indenture, the Company will comply with the applicable securities laws and regulations and shall not be deemed to have breached its obligations described in connection this Indenture by virtue thereof.
(f) The provisions of Section 3.09 hereof and this Section 4.10 may be waived or modified with such Asset Sale during the tax period the sale occurs, (y) payment written consent of the obligations (other than the Loans) secured by a Lien on the assets in question, which is required to be repaid under the terms thereof as a result of such Asset Sale, and (z) a reasonable reserve for any adjustments in respect to sale price of such assets and any indemnification payments (fixed or contingent) attributable to seller’s indemnities and representations and warranties to purchaser in respect of such Asset Sale undertaken by Borrower or any of its Subsidiaries in connection with such Asset Sale; provided that upon release of any such reserve, the amount released shall be considered Net Asset Sale Proceeds). “Asset Sale” means a sale, lease or sublease (as lessor or sublessor), sale and leaseback, assignment, conveyance, transfer, license or other disposition to, or any exchange of property with, any Person (other than to or with a Credit Party), in one transaction or a series of transactions, of all or any part of any Credit Party’s businesses, assets or properties of any kind, whether real, personal, or mixed and whether tangible or intangible, whether now owned or hereafter acquired, leased or licensed, including, without limitation, the capital stock of any Credit Party, other than inventory or other assets sold or leased, or cash or cash equivalents disposed of, in each case, in the ordinary course of business. For purposes of clarification, “Asset Sale” shall (i) include (x) the sale or other disposition for value of any contracts or (y) the early termination or modification of any contract resulting in the receipt by any Credit Party Holders of a cash payment or other consideration majority in exchange for such event (other than payments in principal amount of the ordinary course of business for accrued and unpaid amounts due through the date of termination or modification) and (ii) exclude any taking or other disposition by means of power of eminent domain, condemnation or similar power, threat or rightNotes then outstanding.
Appears in 1 contract
Sources: Indenture (Kraton Corp)
Asset Sales. No later than the first business day following the date of receipt(a) The Company shall not, in any given month, by Borrower or and shall not permit any of its Restricted Subsidiaries to, consummate an Asset Sale unless either (i) such Asset Sale was made in the ordinary course of business, (ii) the assets disposed of constituted Trading Assets, or (iii) clauses (A) through (D) below are satisfied:
(A) the Company (or the Restricted Subsidiary, as the case may be) receives consideration at the time of such Asset Sale at least equal to the fair market value of the assets disposed of;
(B) if the fair market value of such assets is in excess of $3.0 million, such value shall be determined by the Company's Board of Directors, and if such fair market value is in excess of $12.5 million, such fair market value shall be evidenced by an opinion, appraisal or quotation issued by a Valuation Expert;
(C) the Company gives notice of such Asset Sale to the Trustee not less than 10 days prior to the closing thereof; and
(D) at least 75% of the consideration therefor received by the Company or such Restricted Subsidiary is in the form of cash or Cash Equivalents. For purposes of this clause (D), any liabilities of the Company or any Restricted Subsidiary that are assumed by the transferee of any such assets or an Affiliate thereof or that otherwise cease to be liabilities of the Company or a Restricted Subsidiary in connection with such Asset Sale shall be deemed to be cash. Notwithstanding the foregoing, the limitations referred to in clauses (A), (B) and (C) above shall not apply to (1) any Asset Sale made pursuant to, and in compliance with, Section 4.17 of the Series A Indenture, or (2) any Asset Sale made in a public markets, Rule 144A, Regulation S or similar transaction. Notwithstanding the foregoing, the 75% limitation referred to in clause (D) above shall not apply to any Asset Sale in which the cash or Cash Equivalents portion of the consideration received therefrom, determined in accordance with the foregoing 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.
(i) Within 180 days after the receipt of any Net Proceeds from an Asset Sale Sale, the Company may apply such Net Proceeds, at its option, (A) to the permanent repayment, pro rata, of Indebtedness under the Senior Credit Facility, the Repo Agreement, this Indenture and the Series A Indenture or (B) to the acquisition of income-producing assets (including, without limitation, Trading Assets) or Equity Interests in Persons that own income-producing assets if such Persons become Subsidiaries.
(ii) Notwithstanding the foregoing, in the event that a Restricted Subsidiary that is not a wholly-owned Subsidiary consummates an Asset Sale, whether or not such Restricted Subsidiary dividends or distributes to all of its stockholders (including the Company or another Restricted Subsidiary) on a PRO RATA basis any proceeds of such Asset Sale, the Company or such Restricted Subsidiary need only apply its PRO RATA share of such proceeds in accordance with the preceding clauses (b)(i)(A) or (b)(i)(B).
(iii) Pending the final application of any such Net Proceeds, the Company may temporarily reduce revolving credit borrowings or otherwise invest such Net Proceeds in any manner that is not prohibited by this Indenture. Any Net Proceeds from Asset Sales that are not applied or invested as provided in clause (as hereinafter definedb)(i) in excess of above will be deemed to constitute "EXCESS PROCEEDS."
(iv) When the aggregate amount of Budgeted Expenses (as defined in Section 15(e) hereof) as Excess Proceeds exceeds $5.0 million, the Company will be required to make an offer pro rata to all Holders of Notes, all holders of Series A Notes, all holders of Repo Obligations and all holders of Indebtedness under a Senior Credit Facility containing provisions similar to those set forth in this Indenture with respect to offers to purchase or redeem with the most recent Budget proceeds of sales of assets (as defined an "ASSET SALE OFFER") to purchase the maximum principal amount of Notes and such other Indebtedness that may be purchased out of the Excess Proceeds, at an offer price in Section 15(e)) required to be delivered pursuant to Section 15(e) hereof, Borrower shall prepay the Forbearance Period Advances as set forth in Section 3(i) hereof cash in an aggregate amount equal to such excess amount; provided, that (A) such Net Asset Sale Proceeds shall be deposited directly by the payee thereof into a deposit account held by Borrower at Amegy Bank, N.A. and (B) if, within 30 days of Borrower’s receipt of such Net Asset Sale Proceeds, Borrower has not paid one or more such Budgeted Expenses in an aggregate amount equal to 100% of the principal amount thereof plus accrued and unpaid interest thereon, if any, to the date of purchase, in accordance with the procedures set forth in this Indenture and such other Indebtedness. The Company may, in its sole discretion, elect to make an Asset Sale Offer prior to the expiration of the 180-day period, or with less than $5.0 million of Excess Proceeds. To the extent that any Excess Proceeds that were subject to an Asset Sale Offer remain after consummation of such Asset Sale Offer, the Company may use such remaining Excess Proceeds for any purpose not otherwise prohibited by this Indenture. If the aggregate principal amount of Notes and such proceeds not otherwise required other Indebtedness tendered into such Asset Sale Offer exceeds the amount of Excess Proceeds, the Trustee shall select the Notes and such other Indebtedness to prepay be purchased on a pro rata basis. Upon completion of such offer to purchase, the Forbearance Period Advances, then Borrower amount of Excess Proceeds shall prepay the Forbearance Period Advances as be reset at zero. Certain procedures regarding Asset Sale Offers are set forth in Section 3(i3.09 hereof.
(v) hereof in an amount equal 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 amount not so paid. “Net Asset Sale Proceeds” means, with respect to any Asset Sale (as hereinafter defined), an amount equal to: (1) cash payments received by Borrower or any of its Subsidiaries from extent such Asset Sale, minus (2) any bona fide direct costs laws and expenses incurred regulations are applicable in connection with such each repurchase of Notes pursuant to an Asset Sale to Offer. To the extent paid that the provisions of any securities laws or payable to non-Affiliatesregulations conflict with the procedural aspects of the Asset Sales provisions of this Indenture, including (x) income or gains taxes payable or reasonably estimated to be payable the Company shall comply with the procedures required by the seller as a result of any gain recognized in connection with such applicable securities laws and regulations and shall not be deemed to have breached its obligations under the Asset Sale provisions of this Indenture by virtue of such conflict.
(c) Unless otherwise directed by the Trustee during the tax period the sale occurscontinuance of an Event of Default, notwithstanding subsection (yb) payment of the obligations (other than the Loans) secured by a Lien on the assets in questionabove, which is required to be repaid under the terms thereof as a result of such Asset Sale, and (z) a reasonable reserve for any adjustments in respect to sale price of such assets and any indemnification payments (fixed or contingent) attributable to seller’s indemnities and representations and warranties to purchaser in respect of such Asset Sale undertaken by Borrower or any of its Subsidiaries in connection with such Asset Sale; provided that upon release of any such reserve, the amount released shall be considered Net Asset Sale Proceeds). “Asset Sale” means a sale, lease or sublease (as lessor or sublessor), sale and leaseback, assignment, conveyance, transfer, license or other disposition to, or any exchange of property with, any Person (other than to or with a Credit Party), in one transaction or a series of transactions, of all or any part of any Credit Party’s businesses, assets or properties of any kind, whether real, personal, or mixed and whether tangible or intangible, whether now owned or hereafter acquired, leased or licensed, including, without limitation, the capital stock of any Credit Party, other than inventory or other assets sold or leased, or cash or cash equivalents disposed of, in each case, in the ordinary course of business. For purposes of clarification, “Asset Sale” shall (i) include (x) no Asset Sale Offer shall be made with Excess Proceeds derived from Asset Sales of the sale Miscellaneous Collateral, the CBO-REIT Pledged Stock, the QRS 1 Inc. Pledged Stock, the Nomura Bond or other disposition for value of any contracts or (y) the early termination or modification of any contract resulting ▇▇▇▇▇▇▇/GACC Assets unless and until the Series A Notes have been paid in the receipt by any Credit Party of a cash payment or other consideration in exchange for such event (other than payments in the ordinary course of business for accrued and unpaid amounts due through the date of termination or modification) full, and (ii) exclude if the Series A Notes have been paid in full, then any taking Asset Sale Offer made with Excess Proceeds derived from Asset Sales of the Miscellaneous Collateral, the CBO-REIT Pledged Stock, the QRS 1 Inc. Pledged Stock, the Nomura Bond or other disposition by means the ▇▇▇▇▇▇▇/GACC Assets shall be made only to Holders of power the Notes.
(d) The Company will not, and will not permit any of eminent domainits Restricted Subsidiaries to, condemnation consummate any Asset Sale of the CBO-REIT Pledged Stock, the QRS 1 Inc. Pledged Stock, the Nomura Bond or similar power, threat or rightthe ▇▇▇▇▇▇▇/GACC Assets unless such Asset Sale is on commercially reasonable terms.
Appears in 1 contract
Sources: Indenture (Criimi Mae Inc)
Asset Sales. No later (a) The Company will not, and will not permit any of its Restricted Subsidiaries to, consummate an Asset Sale unless:
(i) 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;
(ii) the fair market value is determined in good faith by the Company’s Board of Directors and evidenced by a resolution of the Board of Directors or by a Responsible Officer of the Company set forth in an Officer’s Certificate, in each case, delivered to the Trustee;
(iii) at least 75% of the consideration received in the Asset Sale by the Company or such Restricted Subsidiary is in the form of cash or Cash Equivalents except to the extent the Company is undertaking a Permitted Asset Swap. For purposes of this provision and subparagraph (z) below, each of the following shall be deemed to be cash:
(A) any liabilities, as shown on the Company’s most recent consolidated balance sheet, of the Company or any Restricted Subsidiary (other than contingent liabilities and liabilities that are by their terms subordinated to the Notes or any Subsidiary Guarantee) that are assumed by the transferee of any such 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 converted by the Company or such Restricted Subsidiary within 180 days into cash or Cash Equivalents, to the extent of the cash or Cash Equivalents received in that conversion; and
(iv) if such Asset Sale involves the transfer of Collateral:
(A) such Asset Sale complies with the applicable provisions of the Security Documents; and
(B) to the extent required by the Security Documents, all consideration (including Cash Equivalents) received in such Asset Sale shall be expressly made subject to Liens under the Security Documents. The 75% limitation referred to in clause (iii) above will not apply to any Asset Sale in which the cash or Cash Equivalents portion of the consideration received therefrom, determined in accordance with the preceding provision, is equal to or greater than what the after tax proceeds would have been had such Asset Sale complied with the aforementioned 75% limitation. Notwithstanding the foregoing, the Company or any Restricted Subsidiary will be permitted to consummate an Asset Sale without complying with the foregoing if:
(x) 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 or other property sold, issued or otherwise disposed of;
(y) the fair market value is determined in good faith by the Company’s Board of Directors and evidenced by a resolution of the Board of Directors or by a Responsible Officer of the Company set forth in an Officer’s Certificate, in each case, delivered to the Trustee; and
(z) at least 75% of the consideration for such Asset Sale constitutes a controlling interest in a Permitted Business, assets used or useful in a Permitted Business and/or cash and Cash Equivalents; provided, however, that any cash or Cash Equivalents (other than any amount deemed cash under clause (iii)(A) of the first business day following paragraph of this Section 4.10) received by the date Company or such Restricted Subsidiary in connection with any Asset Sale permitted to be consummated under this paragraph shall constitute Net Proceeds subject to the provisions of receipt, in any given month, the next paragraph.
(b) For Asset Sales by Borrower the Company or any of its Restricted Subsidiaries that are consummated after the date of this Indenture, the Company or such Restricted Subsidiary shall apply the Net Proceeds from such Asset Sales as follows:
(i) Within 365 days after the receipt of any Net Restricted Asset Sale Proceeds (as hereinafter defineddefined below) from such Asset Sales, the Company or such Restricted Subsidiary shall apply those Restricted Asset Sale Proceeds at its option:
(A) to repay Senior Debt and if such Senior Debt is revolving credit Indebtedness, to correspondingly reduce commitments with respect thereto;
(B) to acquire all or substantially all of the assets of, or a majority of the Voting Stock of, a Permitted Business if, after giving effect to any such acquisition of Voting Stock, the Permitted Business is or becomes a Restricted Subsidiary of or is merged with or into the Company or a Restricted Subsidiary;
(C) to make capital expenditures that are used or useful in a Permitted Business; or
(D) to acquire other assets that are used or useful in a Permitted Business; provided, that in the case of clauses (B), (C) and (D) above, a binding commitment shall be treated as a permitted application of the Restricted Asset Sale Proceeds as of the date of such commitment so long as the Company or such Restricted Subsidiary enters into such commitment with the good faith expectation that such Restricted Asset Sale Proceeds will be applied to satisfy such commitment prior to the later of (a) 180 days after the date of such commitment or (b) 365 days after the date of such Asset Sale and if such Restricted Asset Sale Proceeds are not so applied within that time frame, such Restricted Asset Sale Proceeds shall constitute “Excess Proceeds” (as defined below) and be applied as provided in clause (ii) below. Pending the final application of any Restricted Asset Sale Proceeds, the Company may temporarily reduce revolving credit borrowings or otherwise invest the Restricted Asset Sale Proceeds in any manner that is not prohibited by this Indenture. For the avoidance of doubt, the Company shall not make any Restricted Payment to Holdings, directly or indirectly (including through the temporary repayment of any revolving credit facility), with Restricted Asset Sale Proceeds.
(ii) With respect to Net Proceeds from such Asset Sales (other than Net Proceeds from the sale of the ▇▇▇▇▇▇ Property and the sale of KTCY-FM, which shall not be subject to this clause (ii) but shall be subject to clause (i) above) that are in excess of the aggregate amount Restricted Asset Sale Proceeds (the “Excess Proceeds”), within 60 days after the receipt of Budgeted Expenses any such Excess Proceeds, the Company or such Restricted Subsidiary shall apply those Excess Proceeds at its option:
(A) to repay Senior Debt and if such Senior Debt is revolving credit Indebtedness, to correspondingly reduce commitments with respect thereto; or
(B) to commence an Asset Sale Offer as defined provided in Section 15(e) hereof) as the following paragraph. The Company will make an Asset Sale Offer to all holders of Notes and all holders of Parity Lien Debt containing provisions similar to those set forth in this Indenture with respect to offers to purchase or redeem with the most recent Budget (as defined proceeds of sales of assets to purchase the maximum principal amount of Notes and such Parity Lien Debt that may be purchased out of the Excess Proceeds. The offer price in Section 15(e)) required to be delivered pursuant to Section 15(e) hereof, Borrower shall prepay the Forbearance Period Advances as set forth in Section 3(i) hereof in an aggregate amount equal to such excess amount; provided, that (A) such Net any Asset Sale Proceeds shall Offer will be deposited directly by the payee thereof into a deposit account held by Borrower at Amegy Bank, N.A. and (B) if, within 30 days of Borrower’s receipt of such Net Asset Sale Proceeds, Borrower has not paid one or more such Budgeted Expenses in an aggregate amount equal to 100% of the principal amount of the Notes and such proceeds Parity Lien Debt plus accrued and unpaid interest, if any, to the date of purchase, and will be payable in cash. If the date of purchase is on or after an interest record date and on or before the related interest payment date, accrued and unpaid interest, if any, will be paid to the holder in whose name a Note is registered at the close of business on such record date, and no additional interest will be payable to holders who tender pursuant to the Asset Sale Offer. If any Excess Proceeds remain after consummation of an Asset Sale Offer, the Company may use those Excess Proceeds for any purpose not otherwise required prohibited by this Indenture. If the aggregate principal amount of Notes and Parity Lien Debt tendered into such Asset Sale Offer exceeds the amount of Excess Proceeds, the Trustee shall select such tendered Notes and such Parity Lien Debt to prepay be purchased on a pro rata basis. Upon completion of each Asset Sale Offer, the Forbearance Period Advances, then Borrower amount of Excess Proceeds shall prepay be reset at zero.
(c) The Company will comply with the Forbearance Period Advances as set forth in Section 3(i) hereof in an amount equal requirements of Rule 14e-1 under the Exchange Act and any other securities laws and regulations thereunder to the amount not so paid. “Net Asset Sale Proceeds” means, with respect to any Asset Sale (as hereinafter defined), an amount equal to: (1) cash payments received by Borrower or any of its Subsidiaries from such Asset Sale, minus (2) any bona fide direct costs extent those laws and expenses incurred regulations are applicable in connection with such each repurchase of Notes pursuant to an Asset Sale to Offer. To the extent paid or payable to non-Affiliates, including (x) income or gains taxes payable or reasonably estimated to be payable by that the seller as a result provisions of any gain recognized in connection securities laws or regulations conflict with such the Asset Sale during provisions of this Indenture, the tax period Company will comply with the sale occurs, (y) payment of the applicable securities laws and regulations and will not be deemed to have breached its obligations (other than the Loans) secured by a Lien on the assets in question, which is required to be repaid under the terms thereof as a result Asset Sale provisions of this Indenture by virtue of such Asset Sale, and (z) a reasonable reserve for any adjustments in respect to sale price of such assets and any indemnification payments (fixed or contingent) attributable to seller’s indemnities and representations and warranties to purchaser in respect of such Asset Sale undertaken by Borrower or any of its Subsidiaries in connection with such Asset Sale; provided that upon release of any such reserve, the amount released shall be considered Net Asset Sale Proceeds). “Asset Sale” means a sale, lease or sublease (as lessor or sublessor), sale and leaseback, assignment, conveyance, transfer, license or other disposition to, or any exchange of property with, any Person (other than to or with a Credit Party), in one transaction or a series of transactions, of all or any part of any Credit Party’s businesses, assets or properties of any kind, whether real, personal, or mixed and whether tangible or intangible, whether now owned or hereafter acquired, leased or licensed, including, without limitation, the capital stock of any Credit Party, other than inventory or other assets sold or leased, or cash or cash equivalents disposed of, in each case, in the ordinary course of business. For purposes of clarification, “Asset Sale” shall (i) include (x) the sale or other disposition for value of any contracts or (y) the early termination or modification of any contract resulting in the receipt by any Credit Party of a cash payment or other consideration in exchange for such event (other than payments in the ordinary course of business for accrued and unpaid amounts due through the date of termination or modification) and (ii) exclude any taking or other disposition by means of power of eminent domain, condemnation or similar power, threat or rightconflict.
Appears in 1 contract
Sources: Indenture (Lbi Media Holdings Inc)
Asset Sales. No later The Company shall not, and shall not permit any of its Restricted Subsidiaries to, engage in an Asset Sale unless (i) the Company or the Restricted Subsidiary, as the case may be, receives consideration at the time of such Asset Sale at least equal to the fair market value (as determined in good faith by a resolution of the Board of Directors set forth in an Officers' Certificate delivered to the Trustee, 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 (ii) at least 85% of the consideration therefor received by the Company or such Restricted Subsidiary from such Asset Sale is in the form of cash, Cash Equivalents, properties and capital assets to be used by the Company or any Restricted Subsidiary in the Oil and Gas Business or oil and gas properties owned or held by another Person which are to be used in the Oil and Gas Business of the Company or its Restricted Subsidiaries, or any combination thereof (collectively the "cash consideration"); PROVIDED that the amount of (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 first business day following Securities or any guarantee thereof) that are assumed by the date transferee of receiptany such assets pursuant to a customary novation agreement that releases the Company or such Restricted Subsidiary from further liability and (y) any non-cash consideration 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 of closing such Asset Sale, shall be deemed to be cash for purposes of this provision (to the extent of the cash received); PROVIDED, HOWEVER, that the Company and its Restricted Subsidiaries may make Asset Sales with a fair market value not exceeding $10 million in the aggregate in each fiscal year free from any of the restrictions, requirements or other provisions set forth in this Section 4.10. Within 360 days after the receipt of any Net Proceeds from an Asset Sale, the Company may apply such Net Proceeds, at its option, in any given monthorder or combination, by Borrower (a) to reduce Senior Debt or any Guarantor Senior Debt, (b) to make Permitted Investments, (c) to make investments in interests in other Oil and Gas Businesses or (d) to make capital expenditures in respect of the Company's or its Subsidiaries Restricted Subsidiaries' Oil and Gas Business or to purchase long-term assets that are used or useful in the Oil and Gas Business. Pending the final application of any such Net Proceeds, the Company may temporarily reduce Senior Debt that is revolving debt or otherwise invest such Net Proceeds in any manner that is not prohibited by this Indenture. Any Net Proceeds from Asset Sale Proceeds Sales that are not applied as provided in the first sentence of this paragraph shall (as hereinafter definedafter the expiration of the periods specified in this paragraph) in excess of be deemed to constitute "Excess Proceeds." When the aggregate amount of Budgeted Expenses (as defined Excess Proceeds exceeds $15 million, the Company shall make an Asset Sale Offer to purchase the maximum principal amount of Securities and any other Pari Passu Indebtedness to which the Asset Sale Offer applies that may be purchased out of the Excess Proceeds, at an offer price in Section 15(e) hereof) as set forth cash in an amount equal to, in the most recent Budget (as defined in Section 15(e)) required to be delivered pursuant to Section 15(e) hereofcase of the Securities, Borrower shall prepay the Forbearance Period Advances as set forth in Section 3(i) hereof in an aggregate amount equal to such excess amount; provided, that (A) such Net Asset Sale Proceeds shall be deposited directly by the payee thereof into a deposit account held by Borrower at Amegy Bank, N.A. and (B) if, within 30 days of Borrower’s receipt of such Net Asset Sale Proceeds, Borrower has not paid one or more such Budgeted Expenses in an aggregate amount equal to 100% of the principal amount of such proceeds not otherwise required to prepay the Forbearance Period Advances, then Borrower shall prepay the Forbearance Period Advances as set forth in Section 3(i) hereof in an amount equal thereof plus accrued and unpaid interest thereon to the date of purchase or, in the case of any other Pari Passu Indebtedness, 100% of the principal amount not so paid. “Net Asset Sale Proceeds” means, thereof (or with respect to any Asset Sale (as hereinafter defined)discount Pari Passu Indebtedness, an amount equal to: (1the accrued value thereof) cash payments received by Borrower or any of its Subsidiaries from such Asset Sale, minus (2) any bona fide direct costs and expenses incurred in connection with such Asset Sale to the extent paid or payable to non-Affiliates, including (x) income or gains taxes payable or reasonably estimated to be payable by the seller as a result of any gain recognized in connection with such Asset Sale during the tax period the sale occurs, (y) payment of the obligations (other than the Loans) secured by a Lien on the assets in question, which is required to be repaid under the terms thereof as a result date of such Asset Sale, and (z) a reasonable reserve for any adjustments in respect to sale price of such assets and any indemnification payments (fixed or contingent) attributable to seller’s indemnities and representations and warranties to purchaser in respect of such Asset Sale undertaken by Borrower or any of its Subsidiaries in connection with such Asset Sale; provided that upon release of any such reserve, the amount released shall be considered Net Asset Sale Proceeds). “Asset Sale” means a sale, lease or sublease (as lessor or sublessor), sale and leaseback, assignment, conveyance, transfer, license or other disposition to, or any exchange of property with, any Person (other than to or with a Credit Party), in one transaction or a series of transactions, of all or any part of any Credit Party’s businesses, assets or properties of any kind, whether real, personal, or mixed and whether tangible or intangible, whether now owned or hereafter acquired, leased or licensed, including, without limitation, the capital stock of any Credit Party, other than inventory or other assets sold or leased, or cash or cash equivalents disposed ofpurchase, in each case, in accordance with the ordinary course procedures set forth in Section 3.9 hereof or the agreements governing Pari Passu Indebtedness, as applicable. To the extent that the aggregate principal amount (or accreted value, as the case may be) of businessthe Securities and Pari Passu Indebtedness tendered pursuant to an Asset Sale Offer is less than the Excess Proceeds, the Company may use any remaining Excess Proceeds for general corporate purposes. For purposes If the sum of clarification, “Asset Sale” shall (i) include (x) the sale or other disposition for value aggregate principal amount of any contracts or (y) the early termination or modification of any contract resulting in the receipt Securities surrendered by any Credit Party of a cash payment or other consideration in exchange for such event (other than payments in the ordinary course of business for accrued and unpaid amounts due through the date of termination or modification) Holders thereof, and (ii) exclude any taking the aggregate principal amount or accreted value, as the case may be, of other Pari Passu Indebtedness surrendered by holders or lenders thereof, exceeds the amount of Excess Proceeds, the Trustee and the trustee or other disposition by means lender representatives for the Pari Passu Indebtedness shall select the Securities and other Pari Passu Indebtedness to be purchased on a pro rata basis, based on the aggregate principal amount (or accreted value, as applicable) thereof surrendered in such Asset Sale Offer. Upon completion of power of eminent domainsuch Asset Sale Offer, condemnation or similar power, threat or rightExcess Proceeds shall be reset at zero.
Appears in 1 contract
Asset Sales. No later than (a) The Pledgor will not, and each of the first business day Company and TCP will not, and will not permit any of its respective Restricted Subsidiaries to, consummate an Asset Sale unless each of the following conditions is satisfied and the Company shall have delivered to the Trustee a certificate of an Authorized Officer of the Company certifying that such conditions have been satisfied:
(1) The Pledgor, the Company or TCP (or the Restricted Subsidiary, as the case may be) receives consideration at the time of the Asset Sale equal to the Fair Market Value of the assets or Equity Interests issued or sold or otherwise disposed of; and
(2) at least 90% of the consideration therefor received by the Pledgor, the Company, TCP or such Restricted Subsidiary, as the case may be, is in the form of cash, Authorized Investments or Replacement Assets or a combination thereof. For purposes of this provision, each of the following will be deemed to be cash:
(A) any liabilities, as shown on the most recent consolidated balance sheet (or as would be shown on the consolidated balance sheet as of the date of receiptsuch Asset Sale) of the Company, TCP or any Restricted Subsidiary (other than contingent liabilities and liabilities that are by their terms subordinated to the Notes or any Note Guarantee) that are assumed by the transferee of any such assets pursuant to a written novation agreement that releases the Company, TCP or such Restricted Subsidiary from further liability therefor; and
(B) any securities, Notes or other obligations received by the Company, TCP or such Restricted Subsidiary from such transferee that are converted by the Company, TCP or such Restricted Subsidiary into cash or Authorized Investments within 90 days after such Asset Sale, to the extent of the cash or Authorized Investments received in that conversion. The Net Cash Proceeds of any given monthPermitted Pipeline Sale shall be contributed as equity or via an intercompany loan (to the extent not otherwise prohibited under Section 4.08) by the Pledgor to the Company, by Borrower or and neither TCP nor any of its Restricted Subsidiaries shall be released as a Guarantor and no applicable Security Interests shall be released in accordance Section 11.05 until such Net Cash Proceeds shall have been so contributed.
(b) Within 360 days after the receipt of any Net Cash Proceeds from an Asset Sale, the Company or TCP (or the applicable Restricted Subsidiary, as the case may be) may apply an amount equal to such Net Cash Proceeds:
(1) to repay any Senior Debt in accordance with the applicable Senior Debt Instrument; or
(2) to make any capital expenditure or to purchase Replacement Assets (or enter into a binding agreement to make such capital expenditure or to purchase such Replacement Assets); provided that (i) such capital expenditure or purchase is consummated within the later of (x) 360 days after the receipt of the Net Cash Proceeds from the related Asset Sale and (y) 180 days after the date of such binding agreement and (ii) if such capital expenditure or purchase is not consummated within the period set forth in subclause (i), the amount not so applied will be deemed to be Excess Proceeds.
(c) Pending the final application of any Net Cash Proceeds, the Company, TCP or the applicable Restricted Subsidiary may reduce Working Capital Debt or other revolving credit borrowings or otherwise invest the Net Cash Proceeds in any manner that is not prohibited by this Indenture.
(d) An amount equal to any Net Cash Proceeds from Asset Sales that are not applied or invested as hereinafter defined) provided in excess the preceding paragraphs of this Section 4.12 will constitute “Excess Proceeds.” If, on any date, the aggregate amount of Budgeted Expenses (as defined in Section 15(e) hereof) as set forth in Excess Proceeds exceeds $300,000,000, then within ten Business Days after such date, the most recent Budget (as defined in Section 15(e)) required to be delivered pursuant to Section 15(e) hereof, Borrower shall prepay the Forbearance Period Advances as set forth in Section 3(i) hereof in Company will make an aggregate amount equal to such excess amount; provided, that (A) such Net Asset Sale Proceeds shall be deposited directly by the payee thereof into a deposit account held by Borrower at Amegy Bank, N.A. and (B) if, within 30 days of Borrower’s receipt of such Net Offer in accordance with Section 3.09. The offer price or prepayment amount in any Asset Sale Proceeds, Borrower has not paid one or more such Budgeted Expenses in an aggregate amount Offer will be equal to 100% of the principal amount of the Notes plus accrued and unpaid interest, if any, to, but excluding, 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, TCP and their Restricted Subsidiaries may use those Excess Proceeds for any purpose not otherwise prohibited by this Indenture. Upon completion of each Asset Sale Offer, the amount of Excess Proceeds will be reset at zero.
(e) Notwithstanding the foregoing, other than in connection with a Permitted Pipeline Sale, the sale, conveyance or other disposition of all or substantially all of the assets of the Company, TCP and their respective Restricted Subsidiaries, taken as a whole, will be governed by the provisions of Section 5.01 and not by the provisions of this Section 4.12.
(f) The Company will comply with the requirements of Rule 14e-1 under the Exchange Act and any other securities laws and regulations thereunder to the extent such laws and regulations are applicable in connection with each repurchase of Notes pursuant to an Asset Sale Offer. To the extent that the provisions of any securities laws or regulations conflict with the provisions of Section 3.09 or this Section 4.12, or compliance with the provisions of Section 3.09 or this Section 4.12 would constitute a violation of any such laws or regulations, the Company will comply with the applicable securities laws and regulations and will not be deemed to have breached its obligations under Section 3.09 or this Section 4.12 by virtue of such compliance.
(g) If the Trustee, on behalf of the Holders, receives any Net Cash Proceeds to be applied to the prepayment of Senior Debt and this Indenture does not require the Company to make an Asset Sale Offer pursuant to this Section 4.12, the Company shall instruct the Trustee to deposit such proceeds not otherwise in the Construction Account or the Revenue Account, as applicable, and the Trustee shall be required to prepay make such deposit.
(h) Pending their application, all Net Cash Proceeds while held by the Forbearance Period AdvancesCompany in an Account will be invested as Authorized Investments in which the Collateral Agent has a perfected Security Interest for the benefit of the Secured Parties, then Borrower shall prepay subject only to Permitted Liens. The Company and TCP, as applicable, will grant to the Forbearance Period Advances as Collateral Agent, on behalf of the Secured Parties, a security interest, subject only to Permitted Liens, on any property or assets purchased, rebuilt, repaired, replaced or constructed with such Excess Proceeds on the terms set forth in Section 3(i) hereof in an amount equal to this Indenture and the amount not so paid. “Net Asset Sale Proceeds” means, with respect to any Asset Sale (as hereinafter defined), an amount equal to: (1) cash payments received by Borrower or any of its Subsidiaries from such Asset Sale, minus (2) any bona fide direct costs and expenses incurred in connection with such Asset Sale to the extent paid or payable to non-Affiliates, including (x) income or gains taxes payable or reasonably estimated to be payable by the seller as a result of any gain recognized in connection with such Asset Sale during the tax period the sale occurs, (y) payment of the obligations (other than the Loans) secured by a Lien on the assets in question, which is required to be repaid under the terms thereof as a result of such Asset Sale, and (z) a reasonable reserve for any adjustments in respect to sale price of such assets and any indemnification payments (fixed or contingent) attributable to seller’s indemnities and representations and warranties to purchaser in respect of such Asset Sale undertaken by Borrower or any of its Subsidiaries in connection with such Asset Sale; provided that upon release of any such reserve, the amount released shall be considered Net Asset Sale Proceeds). “Asset Sale” means a sale, lease or sublease (as lessor or sublessor), sale and leaseback, assignment, conveyance, transfer, license or other disposition to, or any exchange of property with, any Person (other than to or with a Credit Party), in one transaction or a series of transactions, of all or any part of any Credit Party’s businesses, assets or properties of any kind, whether real, personal, or mixed and whether tangible or intangible, whether now owned or hereafter acquired, leased or licensed, including, without limitation, the capital stock of any Credit Party, other than inventory or other assets sold or leased, or cash or cash equivalents disposed of, in each case, in the ordinary course of business. For purposes of clarification, “Asset Sale” shall (i) include (x) the sale or other disposition for value of any contracts or (y) the early termination or modification of any contract resulting in the receipt by any Credit Party of a cash payment or other consideration in exchange for such event (other than payments in the ordinary course of business for accrued and unpaid amounts due through the date of termination or modification) and (ii) exclude any taking or other disposition by means of power of eminent domain, condemnation or similar power, threat or rightSecurity Documents.
Appears in 1 contract
Sources: Indenture (Venture Global, Inc.)
Asset Sales. No later than the first business day following the date of receipt(a) The Issuer shall not, in any given month, by Borrower or and shall not permit any of its Subsidiaries of any Net to, directly or indirectly, consummate an Asset Sale Proceeds unless:
(1) the Issuer or such Subsidiary, as hereinafter defined) in excess the case may be, receives consideration at least equal to the Fair Market Value at the time of the aggregate amount Asset Sale of Budgeted Expenses the assets, properties, rights or Equity Interests that are the subject of the Asset Sale;
(as defined in Section 15(e2) hereof) as if the consideration for such Asset Sale exceeds L10 million (or the Sterling Equivalent), the determination of such Fair Market Value is evidenced by a resolution of the Issuer's Board of Directors set forth in an Officers' Certificate delivered to the most recent Budget Trustee within five (as defined 5) London Business Days following such consummation; and
(3) at least 85% of the consideration received in Section 15(e)the Asset Sale by the Issuer or such Subsidiary is in the form of Cash Equivalents.
(b) required In the event that any Junior Notes are outstanding, the Issuer shall, on the later of the Issue Date and the date that is five (5) London Business Days following receipt, deposit or cause to be delivered pursuant to Section 15(e) hereof, Borrower shall prepay deposited the Forbearance Period Advances as set forth in Section 3(i) hereof in an aggregate amount equal to such excess amount; provided, that (A) such Net Proceeds of any Asset Sale Proceeds shall be deposited directly (other than Excluded Asset Sale and Liquidation Proceeds) that are received by the payee thereof Issuer and its Subsidiaries on or after May 1, 2003 into a deposit account held by Borrower at Amegy Bankthe Mandatory Redemption Escrow Account. In the event that no Junior Notes are outstanding, N.A. and (B) ifthe Issuer may apply, or procure the application of, the Net Proceeds of any Asset Sale within 30 90 days of Borrower’s after receipt of such Net Asset Sale Proceeds, Borrower has not paid one Proceeds to:
(1) fund any Capital Expenditure in the Permitted Core Business by the Issuer or more such Budgeted Expenses in an aggregate amount equal to 100% any Subsidiary of the amount Issuer; or
(2) fund the acquisition of other assets (excluding Investments, other than Permitted Investments which are not Investments in (i) cash or Cash Equivalents, or (ii) Investments solely in another member of the Group) by the Issuer or any Subsidiary of the Issuer that are used or useful in the Permitted Core Business (for the avoidance of doubt Net Proceeds may be applied to make a Permitted Investment in the Issuer or a Subsidiary for the purpose of funding the acquisition of assets in accordance with this clause (2)); provided that if the Issuer or the relevant Subsidiary of the Issuer has contractually committed to apply such Net Proceeds in accordance with clause (1) or (2) of this sentence within such 90 days, the Issuer or such Subsidiary may apply such Net Proceeds in accordance with such commitment within 180 days after the receipt of such proceeds not otherwise required to prepay the Forbearance Period Advances, then Borrower shall prepay the Forbearance Period Advances as set forth in Section 3(i) hereof in an amount equal to the amount not so paidNet Proceeds. “All Net Asset Sale Proceeds” means, with respect to Proceeds of any Asset Sale (as hereinafter defined), an amount equal to: other than Excluded Asset Sale and Liquidation Proceeds) which are not applied in the manner described in clause (1) cash payments received by Borrower or any of its Subsidiaries from such Asset Sale, minus (2) any bona fide direct costs and expenses incurred of the preceding sentence within the applicable time period specified in connection with such Asset Sale to the extent paid preceding sentence shall be deposited into the Mandatory Redemption Escrow Account within three (3) London Business Days after the expiration of the applicable time period specified in the preceding sentence. The Issuer shall deposit or payable to non-Affiliates, including (x) income or gains taxes payable or reasonably estimated cause to be payable by the seller as a result of any gain recognized in connection with such Asset Sale during the tax period the sale occurs, (y) payment of the obligations deposited all Liquidation Proceeds (other than Excluded Asset Sale and Liquidation Proceeds) and all Net Proceeds of Asset Sales described in Section 4.05 (Purchase and Cancellation of Notes) into the LoansMandatory Redemption Escrow Account within five (5) secured by a Lien on the assets in questionLondon Business Days following receipt. All Liquidation Proceeds and all Net Proceeds of Asset Sales that constitute cash or Cash Equivalents other than British pounds sterling, which is Euro or United States dollars and that are required to be repaid under deposited into the terms thereof as a result Mandatory Redemption Escrow Account shall be converted into British pounds sterling, Euro or United States dollars, at the option of the Issuer, by the Issuer or its Subsidiaries on or prior to deposit of such Liquidation Proceeds or Net Proceeds of Asset Sale, and (z) a reasonable reserve for any adjustments in respect to sale price of such assets and any indemnification payments (fixed or contingent) attributable to seller’s indemnities and representations and warranties to purchaser in respect of such Asset Sale undertaken by Borrower or any of its Subsidiaries in connection with such Asset Sale; provided that upon release of any such reserve, Sales into the amount released shall be considered Net Asset Sale Proceeds). “Asset Sale” means a sale, lease or sublease (as lessor or sublessor), sale and leaseback, assignment, conveyance, transfer, license or other disposition to, or any exchange of property with, any Person (other than to or with a Credit Party), in one transaction or a series of transactions, of all or any part of any Credit Party’s businesses, assets or properties of any kind, whether real, personal, or mixed and whether tangible or intangible, whether now owned or hereafter acquired, leased or licensed, including, without limitation, the capital stock of any Credit Party, other than inventory or other assets sold or leased, or cash or cash equivalents disposed of, in each case, in the ordinary course of business. For purposes of clarification, “Asset Sale” shall (i) include (x) the sale or other disposition for value of any contracts or (y) the early termination or modification of any contract resulting in the receipt by any Credit Party of a cash payment or other consideration in exchange for such event (other than payments in the ordinary course of business for accrued and unpaid amounts due through the date of termination or modification) and (ii) exclude any taking or other disposition by means of power of eminent domain, condemnation or similar power, threat or rightMandatory Redemption Escrow Account.
Appears in 1 contract
Sources: Indenture (Marconi Corp PLC)
Asset Sales. No later The Company shall not, and shall not permit any of its Restricted Subsidiaries to, directly or indirectly, consummate an Asset Sale unless (i) the Company (or such Restricted Subsidiary, as the case may be) receives consideration at the time of such Asset Sale at least equal to the fair market value (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 and (ii) at least 75% of the consideration therefor received by the Company or such Restricted Subsidiary, as the case may be, from such Asset Sale is in the form of cash; 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 first Notes or any Guarantee 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 and (y) any securities, notes or other obligations received by the Company or any such Restricted Subsidiary from such transferee that are immediately converted by the Company or such Restricted Subsidiary into cash (to the extent of the cash received) shall be deemed to be cash for purposes of this provision. Within 360 days after the receipt of any Net Proceeds from an Asset Sale, the Company may apply such Net Proceeds, at its option, (a) to permanently reduce any Senior Debt of the Company (and to correspondingly reduce commitments with respect thereto in the case of revolving borrowings), or (b) to the acquisition of a controlling interest in another business, the making of a capital expenditure or the acquisition of other long-term assets, in each case, in the same line of business day following as the Company was engaged in on the date of receiptthis Indenture. Pending the final application of any such Net Proceeds, the Company may invest such Net Proceeds in any given month, manner that is not prohibited by Borrower this Indenture. Any Net Proceeds from Asset Sales that are not applied or any invested as provided in the first sentence of its Subsidiaries of any Net Asset Sale Proceeds (as hereinafter defined) in excess of this paragraph will be deemed to constitute "Excess Proceeds." When the aggregate amount of Budgeted Expenses (as defined Excess Proceeds exceeds $5.0 million the Company shall make an Asset Sale Offer to purchase the maximum principal amount of Notes that may be purchased out of the Excess Proceeds, at an offer price in Section 15(e) hereof) as set forth in the most recent Budget (as defined in Section 15(e)) required to be delivered pursuant to Section 15(e) hereof, Borrower shall prepay the Forbearance Period Advances as set forth in Section 3(i) hereof cash in an aggregate amount equal to such excess amount; provided, that (A) such Net Asset Sale Proceeds shall be deposited directly by the payee thereof into a deposit account held by Borrower at Amegy Bank, N.A. and (B) if, within 30 days of Borrower’s receipt of such Net Asset Sale Proceeds, Borrower has not paid one or more such Budgeted Expenses in an aggregate amount equal to 100% of the principal amount thereof plus accrued and unpaid interest thereon, to the date of such proceeds not otherwise required to prepay purchase, in accordance with the Forbearance Period Advances, then Borrower shall prepay the Forbearance Period Advances as procedures set forth in Section 3(i) hereof in 3.10 of this Indenture. To the extent that the aggregate amount of Notes tendered pursuant to an Asset Sale Offer is less than the Excess Proceeds, the Company may use any remaining Excess Proceeds for general corporate purposes. If the aggregate principal amount equal to of Notes surrendered by Holders thereof exceeds the amount not so paid. “Net Asset Sale of Excess Proceeds” means, with respect to any Asset Sale (as hereinafter defined), an amount equal to: (1) cash payments received by Borrower or any of its Subsidiaries from such Asset Sale, minus (2) any bona fide direct costs and expenses incurred in connection with such Asset Sale to the extent paid or payable to non-Affiliates, including (x) income or gains taxes payable or reasonably estimated Trustee shall select the Notes to be payable by the seller as purchased on a result of any gain recognized in connection with such Asset Sale during the tax period the sale occurs, (y) payment of the obligations (other than the Loans) secured by a Lien on the assets in question, which is required to be repaid under the terms thereof as a result pro rata basis. Upon completion of such Asset Sale, and (z) a reasonable reserve for any adjustments in respect offer to sale price of such assets and any indemnification payments (fixed or contingent) attributable to seller’s indemnities and representations and warranties to purchaser in respect of such Asset Sale undertaken by Borrower or any of its Subsidiaries in connection with such Asset Sale; provided that upon release of any such reservepurchase, the amount released of Excess Proceeds shall be considered Net reset at zero. The Asset Sale Proceeds). “Asset Sale” means a sale, lease or sublease (as lessor or sublessor), sale and leaseback, assignment, conveyance, transfer, license or other disposition to, or any exchange of property with, any Person (other than to or with a Credit Party), in one transaction or a series of transactions, of all or any part of any Credit Party’s businesses, assets or properties of any kind, whether real, personal, or mixed and whether tangible or intangible, whether now owned or hereafter acquired, leased or licensed, including, without limitation, the capital stock of any Credit Party, other than inventory or other assets sold or leased, or cash or cash equivalents disposed of, in each case, in the ordinary course of business. For purposes of clarification, “Asset Sale” shall (i) include (x) the sale or other disposition for value of any contracts or (y) the early termination or modification of any contract resulting in the receipt by any Credit Party of a cash payment or other consideration in exchange for such event (other than payments in the ordinary course of business for accrued and unpaid amounts due through Offer must be commenced within 30 days following the date on which the aggregate amount of termination or modification) Excess Proceeds exceeds $5.0 million and remain open for at least 30 and not more than 40 days (ii) exclude any taking or other disposition unless otherwise required by means of power of eminent domain, condemnation or similar power, threat or rightapplicable law).
Appears in 1 contract
Sources: Indenture (Baker J Inc)
Asset Sales. No later than the first business day following the date of receiptThe Company shall not, in any given month, by Borrower or and shall not permit any of its Restricted Subsidiaries to, consummate an Asset Sale unless (i) the Company (or the Restricted Subsidiary, as the case may be) receives consideration at the time of such Asset Sale at least equal to the fair market value (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 (ii) at least 75% of the consideration therefor received by the Company or such Restricted Subsidiary is in the form of cash or Cash Equivalents; 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 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 and (y) any securities, notes or other obligations received by the Company or any such Restricted Subsidiary from such transferee that are converted by the Company or such Restricted Subsidiary into cash (to the extent of the cash) received within ten business days after the consummation of such Asset Sale, shall be deemed to be cash for purposes of this provision. Within 365 days after the receipt of any Net Proceeds from an Asset Sale Sale, the Company may apply such Net Proceeds, at its option, (a) to repay Indebtedness in respect of one or more Credit Facilities and permanently reduce the maximum commitments thereunder (provided that such reductions shall have no effect on the amount of Indebtedness permitted to be incurred pursuant to clause (a)(y) of the second paragraph of Section 4.09 hereof) and/or (b) to the acquisition of a controlling interest in, or all or substantially all of the assets of, another business or the making of a capital expenditure in a Permitted Business. Pending the final application of any such Net Proceeds, the Company or such Restricted Subsidiary may temporarily reduce Indebtedness under any Credit Facility or otherwise invest such Net Proceeds (in any manner that is not prohibited by the Indenture. Any Net Proceeds from Asset Sales that are not applied or invested as hereinafter defined) provided in excess the first sentence of this paragraph will be deemed to constitute "Excess Proceeds." When the aggregate amount of Budgeted Expenses (as defined in Section 15(e) hereof) as set forth in Excess Proceeds exceeds $10.0 million, the most recent Budget (as defined in Section 15(e)) Company will be required to make an offer (pro rata in proportion to the principal amount (or accreted value, if applicable) outstanding in respect of any asset sale offer required by the terms of any pari passu Indebtedness incurred in accordance with the Indenture) to all holders of Notes (an "Asset Sale Offer") to purchase the maximum principal amount of Notes that may be delivered pursuant to Section 15(e) hereofpurchased out of the Excess Proceeds, Borrower shall prepay the Forbearance Period Advances as set forth at an offer price in Section 3(i) hereof cash in an aggregate amount equal to such excess amount; provided, that (A) such Net Asset Sale Proceeds shall be deposited directly by the payee thereof into a deposit account held by Borrower at Amegy Bank, N.A. and (B) if, within 30 days of Borrower’s receipt of such Net Asset Sale Proceeds, Borrower has not paid one or more such Budgeted Expenses in an aggregate amount equal to 100% of the principal amount thereof plus accrued and unpaid interest and Liquidated Damages thereon, if any, to the date of such proceeds not otherwise required to prepay purchase, in accordance with the Forbearance Period Advances, then Borrower shall prepay the Forbearance Period Advances as procedures set forth in Section 3(i) hereof in the Indenture. To the extent that the aggregate principal amount of Notes tendered pursuant to an amount equal to the amount not so paid. “Net Asset Sale Proceeds” means, Offer is less than the Excess Proceeds (after giving effect to any pro rata payment with respect to any Asset Sale (pari passu Indebtedness as hereinafter definedaforesaid), an the Company may use any remaining Excess Proceeds for general corporate purposes. If the aggregate principal amount equal to: (1) cash payments received of Notes surrendered by Borrower or any Holders thereof exceeds the amount of its Subsidiaries from such Asset SaleExcess Proceeds, minus (2) any bona fide direct costs and expenses incurred in connection with such Asset Sale to the extent paid or payable to non-Affiliates, including (x) income or gains taxes payable or reasonably estimated Trustee shall select the Notes to be payable by the seller as purchased on a result of any gain recognized in connection with such Asset Sale during the tax period the sale occurs, (y) payment of the obligations (other than the Loans) secured by a Lien on the assets in question, which is required to be repaid under the terms thereof as a result pro rata basis. Upon completion of such Asset Sale, and (z) a reasonable reserve for any adjustments in respect offer to sale price of such assets and any indemnification payments (fixed or contingent) attributable to seller’s indemnities and representations and warranties to purchaser in respect of such Asset Sale undertaken by Borrower or any of its Subsidiaries in connection with such Asset Sale; provided that upon release of any such reservepurchase, the amount released of Excess Proceeds shall be considered Net Asset Sale Proceeds). “Asset Sale” means a sale, lease or sublease (as lessor or sublessor), sale and leaseback, assignment, conveyance, transfer, license or other disposition to, or any exchange of property with, any Person (other than to or with a Credit Party), in one transaction or a series of transactions, of all or any part of any Credit Party’s businesses, assets or properties of any kind, whether real, personal, or mixed and whether tangible or intangible, whether now owned or hereafter acquired, leased or licensed, including, without limitation, the capital stock of any Credit Party, other than inventory or other assets sold or leased, or cash or cash equivalents disposed of, in each case, in the ordinary course of business. For purposes of clarification, “Asset Sale” shall (i) include (x) the sale or other disposition for value of any contracts or (y) the early termination or modification of any contract resulting in the receipt by any Credit Party of a cash payment or other consideration in exchange for such event (other than payments in the ordinary course of business for accrued and unpaid amounts due through the date of termination or modification) and (ii) exclude any taking or other disposition by means of power of eminent domain, condemnation or similar power, threat or rightreset at zero.
Appears in 1 contract
Asset Sales. No later than the first business day following the date of receiptThe Company shall not, in any given month, by Borrower or and shall not permit any of its Restricted Subsidiaries to, consummate an Asset Sale unless (i) the Company (or the Restricted Subsidiary, as the case may be) receives consideration at the time of such Asset Sale at least equal to the fair market value (evidenced by an Officers' Certificate delivered to the Trustee and, with respect to any Asset Sale involving consideration in excess of $5.0 million, a resolution of the Company's Board of Directors) of the assets or Equity Interests issued or sold or otherwise disposed of and (ii) at least 85% of the consideration therefor received by the Company or such Restricted Subsidiary is in the form of Cash Equivalents; 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 Guarantee thereof) that are expressly 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 (y) any currencies, securities, notes or other obligations received by the Company or any such Restricted Subsidiary from such transferee that are converted by the Company or such Restricted Subsidiary into Cash Equivalents within 30 days after receipt (to the extent of the cash received), shall be deemed to be Cash Equivalents for purposes of this provision. The Company or the Restricted Subsidiary, as the case may be, within 180 days after the receipt of any Net Proceeds from an Asset Sale subject to this Section, may apply such Net Proceeds (a) to permanently reduce Senior Indebtedness (other than the Notes or obligations of a Special Purpose Entity) of the Company or of any Restricted Subsidiary, or (b) to (i) an Investment (other than in Receivables that, at the time of purchase, are not Eligible Receivables), or (ii) the purchase of Receivables that are, at the time of purchase, Eligible Receivables (including payment of Dealer Participations), or (iii) the making of any capital expenditure, or (iv) the acquisition of any other tangible assets, in each case, in or with respect to a Permitted Business. Pending the final application of any such Net Proceeds, the Company or such Restricted Subsidiary may temporarily reduce the principal obligations outstanding under any Warehouse Facility or otherwise invest such Net Proceeds in any manner that is not prohibited by this Indenture. Any Net Proceeds from Asset Sales that are not applied or invested as hereinafter defined) provided in excess the preceding sentence of this paragraph will be deemed to constitute "Excess Proceeds." When the aggregate amount of Budgeted Expenses (as defined in Section 15(e) hereof) as set forth in Excess Proceeds exceeds $10.0 million, the most recent Budget (as defined in Section 15(e)) Company shall be required to make an offer to all Holders of Senior Term Notes (a "Senior Term Note Asset Sale Offer") to purchase the maximum principal amount of Senior Term Notes that may be delivered pursuant purchased out of the Excess Proceeds. To the extent that, following such Senior Term Note Asset Sale Offer, any Excess Proceeds remain (any such remaining Excess Proceeds the "Remaining Excess Proceeds"), the Company shall be required to Section 15(emake an offer (pro rata in proportion to the principal amount (or accreted value, if applicable) hereofoutstanding in respect of any PARI PASSU Indebtedness incurred in accordance with the Indenture, Borrower shall prepay the Forbearance Period Advances as set forth terms of which Indebtedness require an asset sale offer) to all Holders of Notes (an "Asset Sale Offer") to purchase the maximum principal amount of Notes that may be purchased out of the Remaining Excess Proceeds, at an offer price in Section 3(i) hereof cash in an aggregate amount equal to such excess amount; provided, that (A) such Net Asset Sale Proceeds shall be deposited directly by the payee thereof into a deposit account held by Borrower at Amegy Bank, N.A. and (B) if, within 30 days of Borrower’s receipt of such Net Asset Sale Proceeds, Borrower has not paid one or more such Budgeted Expenses in an aggregate amount equal to 100% of the principal amount thereof plus accrued and unpaid interest thereon to the date of purchase, in accordance with this Section 510. Notwithstanding the foregoing, if any Excess Spread or interest therein is sold or otherwise conveyed or disposed of in an Asset Sale subject to this Section 510 and, immediately thereafter, Finance Income Receivable relating to the remaining aggregate Excess Spread not sold, conveyed or disposed of pursuant to such transaction (the "Remaining Finance Income Receivable") would be less than Minimum Finance Income Receivable, the Company shall be required to make a Senior Term Note Asset Sale Offer in the amount by which the Remaining Finance Income Receivable is less than Minimum Finance Income Receivable (the "FIR Offer Amount"), without regard to the application of the Net Proceeds of such sale by the Company pursuant to clause (a) or (b) above. To the extent that, following such Senior Term Note Asset Sale Offer, any of the FIR Offer Amount set aside for such Senior Term Note Asset Sale Offer remains (any such amount, the "Remaining FIR Offer Amount"), the Company shall be required to make an Asset Sale Offer in the amount of the Remaining FIR Offer Amount; PROVIDED, that any Asset Sale Offer made pursuant to this sentence shall be at an offer price of 101% of the principal amount of the Notes plus accrued and unpaid interest thereon to the date of the purchase. To the extent that the aggregate amount of Notes tendered pursuant to an Asset Sale Offer is less than the Remaining Excess Proceeds or Remaining FIR Offer Amount, as applicable, the Company or the Restricted Subsidiary, as the case may be, may use any remaining Remaining Excess Proceeds or Remaining FIR Offer Amount for general corporate purposes. If the aggregate principal amount of Notes surrendered by Holders thereof exceeds the amount of Remaining Excess Proceeds or Remaining FIR Offer Amount (after giving effect to any pro rata payment with respect to PARI PASSU Indebtedness as aforesaid), as applicable, the Trustee shall select the Notes to be purchased on a pro rata basis (including any principal amount (or accreted value, if applicable) tendered in respect of any asset sale offer required by the terms of any PARI PASSU Indebtedness incurred in accordance with the Indenture). Upon completion of such proceeds Asset Sale Offer, the amount of Excess Proceeds shall be reset at zero. The FIR Offer Amount shall be determined separately for each Asset Sale of Excess Spread. Notwithstanding the relative rights of the Holders of the Senior Term Notes, the Notes and any such PARI PASSU Indebtedness with respect to Asset Sale Offers, the Notes and any such PARI PASSU Indebtedness shall constitute Senior Indebtedness of the Company and shall not otherwise be deemed subordinate in right of payment to the Senior Term Notes. The Asset Sale Offer shall remain open for the minimum period of time required by Rule 14e-1 and no longer (the "Asset Sale Offer Period"). No later than five Business Days after the termination of the Asset Sale Offer Period (the "Asset Sale Purchase Date"), the Company shall purchase the principal amount of Notes required to prepay be purchased pursuant to this Section 510 (the Forbearance Period Advances"Asset Sale Offer Amount") (including any principal amount (or accreted value, then Borrower if applicable) tendered in respect of any asset sale offer required by the terms of any PARI PASSU Indebtedness incurred in accordance with the Indenture) or, if less than the Asset Sale Offer Amount has been tendered, all Notes tendered in response to the Asset Sale Offer (including any principal amount (or accreted value, if applicable) tendered in respect of any asset sale offer required by the terms of any PARI PASSU Indebtedness incurred in accordance with the Indenture). If the Asset Sale Purchase Date is on or after an interest payment record date and on or before the related interest payment date, any accrued and unpaid interest shall prepay be paid to the Forbearance Period Advances Person in whose name a Note is registered at the close of business on such record date, and no additional interest shall be payable to Holders who tender Notes pursuant to the Asset Sale Offer. On or before the Asset Sale Purchase Date, the Company shall, to the extent lawful, accept for payment, on a pro rata basis to the extent necessary, the Asset Sale Offer Amount of Notes or portions thereof tendered pursuant to the Asset Sale Offer (including any principal amount (or accreted value, if applicable) tendered in respect of any asset sale offer required by the terms of any PARI PASSU Indebtedness incurred in accordance with the Indenture), or if less than the Asset Sale Offer Amount has been tendered, all Notes tendered (including any principal amount (or accreted value, if applicable) tendered in respect of any asset sale offer required by the terms of any PARI PASSU Indebtedness incurred in accordance with the Indenture), and 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 510. The Company, the Depositary or the Paying Agent, as set forth in Section 3(i) hereof in the case may be, shall, not later than five days after the Asset Sale 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 issue a new Note, and the Trustee, upon delivery of an Officers' Certificate from the Company, shall authenticate and mail or deliver such new Note to such Holder, in a principal amount equal to any unpurchased portion of any Note surrendered. Any Note not so paidaccepted shall be promptly mailed or delivered by the Company to the Holder thereof. “Net The Company shall publicly announce the results of the Asset Sale Proceeds” meansOffer on the Asset Sale Purchase Date. The Company shall comply, to the extent applicable, with respect to the requirements of Rule 14e-1 and any Asset Sale (as hereinafter defined), an amount equal to: (1) cash payments received by Borrower other securities laws or any of its Subsidiaries from such Asset Sale, minus (2) any bona fide direct costs and expenses incurred regulations in connection with such Asset Sale the repurchase of Notes pursuant to this Section 510. To the extent paid or payable to non-Affiliates, including (x) income or gains taxes payable or reasonably estimated to be payable by that the seller as a result provisions of any gain recognized in connection securities laws or regulations conflict with such Asset Sale during the tax period the sale occurs, (y) payment provisions of the obligations (other than the Loans) secured by a Lien on the assets in question, which is required to be repaid under the terms thereof as a result of such Asset Sale, and (z) a reasonable reserve for any adjustments in respect to sale price of such assets and any indemnification payments (fixed or contingent) attributable to seller’s indemnities and representations and warranties to purchaser in respect of such Asset Sale undertaken by Borrower or any of its Subsidiaries in connection with such Asset Sale; provided that upon release of any such reservethis Section 510, the amount released Company shall comply with the applicable securities laws and regulations and shall not be deemed to have breached its obligations under this Section 510 by virtue thereof. Notwithstanding the foregoing, this Section 510 shall be considered Net Asset Sale Proceeds). “Asset Sale” means a sale, lease of no further force or sublease (as lessor or sublessor), sale effect and leaseback, assignment, conveyance, transfer, license or other disposition to, or any exchange shall cease to apply upon and after the occurrence of property with, any Person (other than to or with a Credit Party), in one transaction or a series of transactions, of all or any part of any Credit Party’s businesses, assets or properties of any kind, whether real, personal, or mixed and whether tangible or intangible, whether now owned or hereafter acquired, leased or licensed, including, without limitation, the capital stock of any Credit Party, other than inventory or other assets sold or leased, or cash or cash equivalents disposed of, in each case, in the ordinary course of business. For purposes of clarification, “Asset Sale” shall (i) include (x) the sale or other disposition for value of any contracts or (y) the early termination or modification of any contract resulting in the receipt by any Credit Party of a cash payment or other consideration in exchange for such event (other than payments in the ordinary course of business for accrued and unpaid amounts due through the date of termination or modification) and (ii) exclude any taking or other disposition by means of power of eminent domain, condemnation or similar power, threat or rightan Investment Grade Rating Event.
Appears in 1 contract
Sources: Second Supplemental Indenture (Arcadia Financial LTD)
Asset Sales. No later (a) The Company shall not, and shall not permit any of its Restricted Subsidiaries to, consummate an Asset Sale unless:
(i) except in the case of a disposition of Investments in Joint Ventures to the extent required by or made pursuant to customary buy/sell arrangements between the Joint Venture parties set forth in Joint Venture agreements or similar binding arrangements, the Company (or the Restricted Subsidiary, as the case may be) receives consideration at the time of such Asset Sale at least equal to the fair market value of the assets or Equity Interests issued or sold or otherwise disposed of;
(ii) such fair market value is determined in good faith by (a) an Officer of the General Partner if the value is less than $50.0 million, as evidenced by an Officers’ Certificate delivered to the first Trustee or (b) the Board of Directors of the General Partner if the value is $50.0 million or more, as evidenced by a Board Resolution of the General Partner; and
(iii) except in the case of a Permitted Asset Swap, at least 75% of the consideration therefor received by the Company or such Restricted Subsidiary is in the form of cash or Cash Equivalents or a combination thereof. For purposes of this provision, each of the following shall be deemed to be cash:
(A) any liabilities (as shown on the Company’s or such Restricted Subsidiary’s most recent balance sheet) of the Company or any Restricted Subsidiary (other than contingent liabilities and liabilities that are by their terms subordinated to the Notes or any 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 within 180 days after the Asset Sale converted by such Issuer or such Restricted Subsidiary into cash (to the extent of the cash received in that conversion); and
(C) accounts receivable of a business day retained by the Company or any Restricted Subsidiary, as the case may be, following the sale of such business, provided, that such accounts receivable are not (a) past due more than 90 days and (b) do not have a payment date greater than 120 days from the date of receipt, in any given month, by Borrower or any of its Subsidiaries the invoice creating such accounts receivable.
(b) Within 360 days after the receipt of any Net Proceeds from an Asset Sale (or within 90 days after such 360-day period in the event the Company enters into a binding commitment with respect to such application), the Company or a Restricted Subsidiary may apply such Net Proceeds at its option:
(i) to repay senior Indebtedness of the Company and/or its Restricted Subsidiaries under the Credit Facilities; and/or
(ii) to satisfy all mandatory repayment obligations under the Credit Facilities arising by reason of such Asset Sale;
(iii) to make a capital expenditure in a Permitted Business;
(iv) to acquire other tangible assets that are used or useful in a Permitted Business; or
(v) to acquire all or substantially all of the assets of a Person engaged in a Permitted Business or Equity Interests of a Person engaged in a Permitted Business so long as hereinafter definedsuch Person or the Person to which such assets are transferred is or becomes a Restricted Subsidiary. Pending the final application of any such Net Proceeds, the Company may temporarily reduce revolving credit borrowings or otherwise invest such Net Proceeds in any manner that is not prohibited by this Indenture.
(c) Any Net Proceeds from Asset Sales that are not applied or invested as provided in excess of Section 4.07(b) above will constitute “Excess Proceeds”. When the aggregate amount of Budgeted Expenses (as defined in Section 15(e) hereof) as Excess Proceeds exceeds $25.0 million, the Issuers will make an Asset Sale Offer to all Holders of Notes and, at the option of the Issuers, all holders of other Indebtedness that is pari passu with the Notes to purchase the maximum principal amount of Notes and such other pari passu Indebtedness that may be purchased out of the Excess Proceeds; provided that Notes tendered shall be given priority over any such other Indebtedness unless such other Indebtedness contains provisions similar to those set forth in this Indenture with respect to offers to purchase or redeem with the most recent Budget (as defined proceeds of sales of assets in Section 15(e)) required to which case the Notes and such other Indebtedness will be delivered pursuant to Section 15(e) hereof, Borrower shall prepay the Forbearance Period Advances as set forth purchased on a pro rata basis. The offer price in Section 3(i) hereof in an aggregate amount equal to such excess amount; provided, that (A) such Net any Asset Sale Proceeds shall Offer will be deposited directly by the payee thereof into a deposit account held by Borrower at Amegy Bank, N.A. and (B) if, within 30 days of Borrower’s receipt of such Net Asset Sale Proceeds, Borrower has not paid one or more such Budgeted Expenses in an aggregate amount equal to 100% of principal amount plus accrued and unpaid interest, if any, to the amount Purchase Date, and will be payable in cash. If any Excess Proceeds remain after consummation of an Asset Sale Offer, the Company may use such proceeds Excess Proceeds for any purpose not otherwise required to prepay the Forbearance Period Advances, then Borrower shall prepay the Forbearance Period Advances as set forth in Section 3(i) hereof in an amount equal to the amount not so paid. “Net Asset Sale Proceeds” means, with respect to any Asset Sale (as hereinafter defined), an amount equal to: (1) cash payments received prohibited by Borrower or any of its Subsidiaries from such Asset Sale, minus (2) any bona fide direct costs and expenses incurred in connection with such Asset Sale to the extent paid or payable to non-Affiliates, including (x) income or gains taxes payable or reasonably estimated to be payable by the seller as a result of any gain recognized in connection with such Asset Sale during the tax period the sale occurs, (y) payment of the obligations (other than the Loans) secured by a Lien on the assets in question, which is required to be repaid under the terms thereof as a result of such Asset Sale, and (z) a reasonable reserve for any adjustments in respect to sale price of such assets and any indemnification payments (fixed or contingent) attributable to seller’s indemnities and representations and warranties to purchaser in respect of such Asset Sale undertaken by Borrower or any of its Subsidiaries in connection with such Asset Sale; provided that upon release of any such reserve, the amount released shall be considered Net Asset Sale Proceeds). “Asset Sale” means a sale, lease or sublease (as lessor or sublessor), sale and leaseback, assignment, conveyance, transfer, license or other disposition to, or any exchange of property with, any Person (other than to or with a Credit Party), in one transaction or a series of transactions, of all or any part of any Credit Party’s businesses, assets or properties of any kind, whether real, personal, or mixed and whether tangible or intangible, whether now owned or hereafter acquired, leased or licensedthis Indenture, including, without limitation, the capital stock repurchase or redemption of Indebtedness of the Issuers or any Credit Party, other than inventory or other assets sold or leased, or cash or cash equivalents disposed of, in each caseSubsidiary Guarantor that is subordinated to the Notes or, in the ordinary course of business. For purposes of clarification, “Asset Sale” shall (i) include (x) the sale or other disposition for value case of any contracts or Subsidiary Guarantor, the Guarantee of such Subsidiary Guarantor. If the aggregate principal amount of Notes tendered into such Asset Sale Offer exceeds the amount of Excess Proceeds allocated for repurchases of Notes pursuant to the Asset Sale Offer for Notes, the Trustee shall select the Notes to be purchased on a pro rata basis. Upon completion of each Asset Sale Offer, the amount of Excess Proceeds shall be reset at zero.
(yd) The Company shall comply with the early termination or modification 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 contract resulting in securities laws or regulations conflict with Section 3.09 or this Section 4.07, the receipt Company shall comply with the applicable securities laws and regulations and shall not be deemed to have breached its obligations under Section 3.09 or this Section 4.07 by any Credit Party virtue of a cash payment or other consideration in exchange for such event (other than payments in the ordinary course of business for accrued and unpaid amounts due through the date of termination or modification) and (ii) exclude any taking or other disposition by means of power of eminent domain, condemnation or similar power, threat or rightconflict.
Appears in 1 contract
Sources: First Supplemental Indenture (Penn Virginia Resource Partners L P)
Asset Sales. No later than (a) The Company shall not, and shall not permit any of its Restricted Subsidiaries to, consummate an Asset Sale unless:
(i) the first business day following Company or a Restricted Subsidiary receives consideration at the date time of receiptsuch Asset Sale at least equal to the Fair Market Value (as determined at the time of contractually agreeing to such Asset Sale) of the assets sold or otherwise disposed of; and
(ii) except in the case of a Permitted Asset Swap, at least 75% of the consideration from such Asset Sale received by the Company or a Restricted Subsidiary is in any given month, by Borrower the form of cash or Cash Equivalents.
(b) Within 455 days after the Company’s or any of its Subsidiaries Restricted Subsidiaries’ receipt of any Net Proceeds of any Asset Sale (the “Asset Sale Proceeds Application Period”), the Company or such Restricted Subsidiary, at its option, may apply an amount equal to the Net Proceeds (“Applicable Proceeds”) from such Asset Sale:
(i) to the extent such Net Proceeds are from an Asset Sale of Collateral, to repay either (i) the First Lien Obligations, (ii) Obligations under the Notes or (iii) Second Lien Obligations (other than the Notes); provided that if the Company or any of its Restricted Subsidiaries shall so repay any Second Lien Obligations other than the Notes, the Company will either reduce Obligations under the Notes on a pro rata basis by, at its option, (A) redeeming the Notes as described under Section 3.07 or (B) purchasing Notes through open-market purchases, at a price equal to or higher than 100% of the principal amount thereof, or making an offer (in accordance with the procedures set forth below for an Asset Sale Offer) to all Holders to purchase their Notes on a ratable basis with such other Second Lien Obligations for no less than 100% of the principal amount thereof, plus the amount of accrued but unpaid interest, if any, thereon up to the principal amount of Notes to be repurchased;
(ii) if the assets that are the subject of such Asset Sale do not constitute Collateral, to repay either (i) the First Lien Obligations, (ii) Obligations under the Notes or (iii) Obligations under any other Senior Indebtedness; provided that if the Company or any of its Restricted Subsidiaries shall so repay any Senior Indebtedness other than the Notes, the Company will either reduce Obligations under the Notes on a pro rata basis by, at its option, (A) redeeming Notes as described under Section 3.07 or (B) purchasing Notes through open-market purchases, at a price equal to or higher than 100% of the principal amount thereof, or making an offer (in accordance with the procedures set forth below for an Asset Sale Offer) to all Holders to purchase their Notes on a ratable basis with such other Senior Indebtedness for no less than 100% of the principal amount thereof, plus the amount of accrued but unpaid interest, if any, thereon up to the principal amount of Notes to be repurchased;
(iii) if the Net Proceeds are received by a Restricted Subsidiary that is not a Guarantor, to permanently reduce Indebtedness of a Restricted Subsidiary that is not a Guarantor, other than Indebtedness owed to the Company or another Restricted Subsidiary;
(iv) to make (A) an Investment in any one or more businesses; provided that such Investment in any business is in the form of the acquisition of Capital Stock and results in the Company or a Restricted Subsidiary, as the case may be, owning an amount of the Capital Stock of such business such that it constitutes or continues to constitute a Restricted Subsidiary, (B) capital expenditures or (C) acquisitions of other property or assets (other than Capital Stock), in the case of each of clauses (A), (B) and (C), either (x) that are used or useful in a Similar Business or (y) that replace the businesses, properties and/or assets that are the subject of such Asset Sale;
(v) to make an Investment in Additional Assets; or
(vi) any combination of the foregoing; provided that, in the case of clauses (iv) or (v) above, a binding commitment to consummate any such investment described in such clauses shall be treated as a permitted application of the Net Proceeds from the date of such commitment so long as the Company or such Restricted Subsidiary enters into such commitment with the good faith expectation that such Net Proceeds will be applied to satisfy such commitment within 180 days of such commitment (an “Acceptable Commitment”) and, in the event any Acceptable Commitment is later cancelled or terminated for any reason before the Net Proceeds are applied in connection therewith, then such Net Proceeds shall constitute Excess Proceeds to the extent the Asset Sale Proceeds Application Period has expired unless the Company or such Restricted Subsidiary enters into another Acceptable Commitment within 180 days of such cancellation or termination (a “Second Commitment”); provided, further, that if any Second Commitment is later cancelled or terminated for any reason before such Net Proceeds are applied, then such Net Proceeds shall constitute Excess Proceeds to the extent the Asset Sale Proceeds Application has expired.
(c) Notwithstanding the foregoing, to the extent a distribution of any or all of the Applicable Proceeds of any Asset Sales by a Restricted Subsidiary to the Company or another Restricted Subsidiary (x) is prohibited or delayed by (i) applicable local law, (ii) restricted by applicable organizational documents of a non-Wholly-Owned Subsidiary or (iii) any agreement which existed on the date such Restricted Subsidiary became a Subsidiary and was not created in contemplation thereof or (y) would have a material adverse Tax consequence, as reasonably determined by the Company, the portion of such Applicable Proceeds so affected will not be required to be applied in compliance with this covenant; provided that if at any time within one year following the date on which such affected Applicable Proceeds would otherwise have been required to be applied pursuant to this covenant, distribution of any of such affected Applicable Proceeds is no longer prohibited or delayed by applicable local law, restricted by such applicable organizational document or agreement (and is not expected to have any material adverse Tax consequence), an amount equal to such amount of Applicable Proceeds so permitted to be repatriated will be promptly applied (net of any Taxes, costs or expenses that would be payable or reserved against if such amounts were actually repatriated, whether or not they are repatriated) in compliance with this covenant. The non-application of any prepayment amounts as a consequence of the foregoing provisions will not, for the avoidance of doubt, constitute a Default or an Event of Default. For the avoidance of doubt, nothing in this Indenture shall be construed to require the Company or any of its Restricted Subsidiaries to repatriate cash or to apply any Net Proceeds described in clause (x) above in compliance with this covenant in the event that such repatriation is not permitted under applicable local law, or such applicable organizational documents or agreements within one year following the date on which the respective payment would otherwise have been required.
(d) Pending the final application of any such amount of Applicable Proceeds, the Company or any of its Restricted Subsidiaries may temporarily reduce Indebtedness under a revolving credit facility, if any, or otherwise invest or utilize such Applicable Proceeds in any manner not prohibited by this Indenture. Any Applicable Proceeds that are not applied or invested as provided Section 4.10(b) (but excluding for the avoidance of doubt any such proceeds not required to be applied or invested as a result of Section 4.10(c)) will constitute “Excess Proceeds”; provided that any amount of proceeds offered to holders in accordance with clauses (i) or (ii) of this Section 4.10(b) at a price at or above par or pursuant to an Asset Sale Offer (as hereinafter defineddefined below) in excess of made at any time after the Asset Sale shall be deemed to have been applied as required and shall not be deemed to be Excess Proceeds without regard to the extent to which such offer is accepted by the holders.
(e) When the aggregate amount of Budgeted Expenses Excess Proceeds exceeds the greater of $40.0 million and 5.0% of Consolidated Total Assets (as defined in Section 15(e) hereof) as set forth the “Excess Proceeds Offer Amount”), the Company shall make an offer to all Holders and, if required or permitted by the terms of other Second Lien Obligations (in the most recent Budget case of an Asset Sale of Collateral) or other Senior Indebtedness (in the case of an Asset Sale of assets that do not constitute Collateral), to the holders of such other Second Lien Obligations or Senior Indebtedness, as defined applicable (an “Asset Sale Offer”), to purchase the maximum aggregate principal amount of the Notes and such other Second Lien Obligations or Senior Indebtedness (solely with respect to such other Second Lien Obligations or Senior Indebtedness, the accreted value thereof, if not inconsistent with the definitive documents governing such Obligations or Indebtedness), with respect to the Notes only, that is equal to $2,000 or an integral multiple of $1,000 in Section 15(e)) required excess thereof that may be purchased out of the Excess Proceeds at an offer price, with respect to be delivered pursuant to Section 15(e) hereofthe Notes only, Borrower shall prepay the Forbearance Period Advances as set forth in Section 3(i) hereof cash in an aggregate amount equal to such excess amount; provided, that (A) such Net Asset Sale Proceeds shall be deposited directly by the payee thereof into a deposit account held by Borrower at Amegy Bank, N.A. and (B) if, within 30 days of Borrower’s receipt of such Net Asset Sale Proceeds, Borrower has not paid one or more such Budgeted Expenses in an aggregate amount equal to 100% of the principal amount thereof, plus accrued and unpaid interest thereon, if any, to, but excluding, the date fixed for the closing of such proceeds not otherwise required to prepay offer, in accordance with the Forbearance Period Advances, then Borrower shall prepay the Forbearance Period Advances as procedures set forth in Section 3(i) hereof in this Indenture and, if applicable, the other documents governing the other Second Lien Obligations or Senior Indebtedness, as the case may be. The Company will commence an amount equal Asset Sale Offer with respect to Excess Proceeds within 20 Business Days after the date that Excess Proceeds exceed the Excess Proceeds Offer Amount by transmitting electronically or by mailing the notice required pursuant to the amount not so paidterms of this Indenture, with a copy to the Trustee. “Net Asset Sale Proceeds” means, The Company may satisfy the foregoing obligations with respect to any Net Proceeds from an Asset Sale by making an Asset Sale Offer with respect to any Net Proceeds (the “Advance Portion”) prior to the expiration of the Asset Sale Proceeds Application Period with respect to all or a part of the available Net Proceeds in advance of being required to do so by this Indenture (the “Advance Offer”).
(f) To the extent that the aggregate principal amount (or accreted value, as applicable) of Notes and such other Second Lien Obligations or Senior Indebtedness, as applicable, tendered pursuant to an Asset Sale Offer is less than the Excess Proceeds (or, in the case of an Advance Offer, the Advance Portion), the Company may use any remaining Excess Proceeds (such amount, “Retained Declined Proceeds”) (or, in the case of an Advance Offer, the Advance Portion) in any manner not prohibited by this Indenture. If the aggregate principal amount (or accreted value, as applicable) of Notes or the other Second Lien Obligations or Senior Indebtedness, as applicable, surrendered in an Asset Sale Offer exceeds the amount of Excess Proceeds (or, in the case of an Advance Offer, the Advance Portion), the Notes will be selected in accordance with DTC procedures and the Company or the representative of such other Second Lien Obligations or Senior Indebtedness shall select such other Second Lien Obligations or Senior Indebtedness to be purchased or repaid on a pro rata basis based on the accreted value or principal amount of the Notes or such other Second Lien Obligations or Senior Indebtedness, as applicable, tendered; provided that no Notes of $2,000 or less shall be repurchased in part. Upon completion of any such Asset Sale Offer, the amount of Excess Proceeds shall be reset at zero, and in the case of an Advance Offer, the amount of Net Proceeds the Company is offering to apply in such Advance Offer shall be excluded in subsequent calculations of Excess Proceeds.
(g) [Reserved].
(h) For purposes of this Section 4.10 (and no other provision), the amount of the following shall be deemed to be cash or Cash Equivalents:
(i) any liabilities (as hereinafter defined)reflected on the Company’s most recent consolidated balance sheet or in the notes thereto, an amount equal to: (1or 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) cash payments received by Borrower of the Company or any of its Subsidiaries from Restricted Subsidiaries, other than liabilities that are by their terms subordinated to the Notes, that are assumed by the transferee of any such assets (or are otherwise extinguished in connection with the transactions relating to such Asset Sale, minus (2) any bona fide direct costs and expenses incurred in connection with such Asset Sale to for which the extent paid or payable to non-Affiliates, including (x) income or gains taxes payable or reasonably estimated to be payable by the seller as a result of any gain recognized in connection with such Asset Sale during the tax period the sale occurs, (y) payment of the obligations (other than the Loans) secured by a Lien on the assets in question, which is required to be repaid under the terms thereof as a result of such Asset Sale, Company and (z) a reasonable reserve for any adjustments in respect to sale price of such assets and any indemnification payments (fixed or contingent) attributable to seller’s indemnities and representations and warranties to purchaser in respect of such Asset Sale undertaken by Borrower or any all of its Restricted Subsidiaries have been validly released in connection with such Asset Sale; provided that upon release of any such reserve, the amount released shall be considered Net Asset Sale Proceeds). “Asset Sale” means a sale, lease or sublease (as lessor or sublessor), sale and leaseback, assignment, conveyance, transfer, license or other disposition to, or any exchange of property with, any Person (other than to or with a Credit Party), in one transaction or a series of transactions, of all or any part of any Credit Party’s businesses, assets or properties of any kind, whether real, personal, or mixed and whether tangible or intangible, whether now owned or hereafter acquired, leased or licensed, including, without limitation, the capital stock of any Credit Party, other than inventory or other assets sold or leased, or cash or cash equivalents disposed of, in each case, in the ordinary course of business. For purposes of clarification, “Asset Sale” shall (i) include (x) the sale or other disposition for value of any contracts or (y) the early termination or modification of any contract resulting in the receipt by any Credit Party of a cash payment or other consideration in exchange for such event (other than payments in the ordinary course of business for accrued and unpaid amounts due through the date of termination or modification) and (ii) exclude any taking or other disposition by means of power of eminent domain, condemnation or similar power, threat or right.writing;
Appears in 1 contract
Asset Sales. No later than The Company shall not, and shall not permit any of its Subsidiaries to, directly or indirectly, consummate any Asset Sale unless:
(a) no Default or Event of Default shall have occurred and be continuing;
(b) the first business day following Company or such Subsidiary receives consideration at the date time of receipt, such Asset Sale at least equal to the Fair Market Value of the Property subject to such Asset Sale;
(c) at least 75% of the consideration paid to the Company or such Subsidiary in any given month, connection with such Asset Sale is in the form of cash or Cash Equivalents or the assumption by Borrower the purchaser of liabilities of the Company or any of its Subsidiaries (other than contingent liabilities or liabilities that are by their terms subordinated to the Notes or the applicable Guaranty) as a result of which the Company and its Subsidiaries are no longer obligated with respect to such liabilities; and
(d) the Company delivers an Officers’ Certificate to the Holders certifying that such Asset Sale complies with the foregoing clauses (a), (b) and (c). The Net Available Cash (or any portion thereof) from Asset Sales may be applied by the Company or any of its Subsidiaries, to the extent the Company or such Subsidiary elects (or is required by the terms of any Debt) to reinvest in Additional Assets (including by means of an Investment in Additional Assets by any Subsidiary of the Company with Net Available Cash received by the Company or another Subsidiary of the Company). The Net Available Cash from an Asset Sale Proceeds (as hereinafter defined) not applied in excess accordance with the preceding paragraph within 120 days from the date of the receipt of such Net Available Cash shall constitute “Excess Proceeds”. When the aggregate amount of Budgeted Expenses Excess Proceeds exceeds $30.0 million (as defined in Section 15(etaking into account income earned on such Excess Proceeds, if any), the Company will be required to make an offer to repurchase (the “Asset Sale Offer”) hereof) as set forth the Note, which offer shall be in the most recent Budget amount of the Allocable Excess Proceeds (as defined in Section 15(erounded to the nearest $100,000)) required , on a pro rata basis according to be delivered pursuant to Section 15(e) hereofthe principal amount, Borrower shall prepay the Forbearance Period Advances as set forth in Section 3(i) hereof in an aggregate amount equal to such excess amount; provided, that (A) such Net Asset Sale Proceeds shall be deposited directly by the payee thereof into at a deposit account held by Borrower at Amegy Bank, N.A. and (B) if, within 30 days of Borrower’s receipt of such Net Asset Sale Proceeds, Borrower has not paid one or more such Budgeted Expenses in an aggregate amount purchase price equal to 100% of the principal amount thereof, plus accrued and unpaid interest if any to the Purchase Date (subject to the right of such proceeds not otherwise required holders of record on the relevant Regular Record Date to prepay receive interest due on the Forbearance Period Advancesrelevant Interest Payment Date), then Borrower shall prepay in accordance with the Forbearance Period Advances as procedures (including prorating in the event of oversubscription) set forth in Section 3(i) hereof 7.01. To the extent that any portion of the amount of Net Available Cash remains after compliance with the preceding sentence and provided that all Holders have been given the opportunity to tender their Notes for repurchase in an accordance with Section 7.01, the Company or such Subsidiary may use such remaining amount equal first to repay other Senior Debt of the Company or any Guarantor or Debt of any Subsidiary of the Company that is not a Guarantor (excluding, in any such case, any Debt owed to the amount not so paid. “Net Asset Sale Proceeds” means, with respect to any Asset Sale (as hereinafter definedCompany or an Affiliate of the Company), an amount equal to: (1) cash payments received and only thereafter, for any purpose permitted by Borrower or any of its Subsidiaries from such Asset Sale, minus (2) any bona fide direct costs and expenses incurred in connection with such Asset Sale to the extent paid or payable to non-Affiliates, including (x) income or gains taxes payable or reasonably estimated to be payable by the seller as a result of any gain recognized in connection with such Asset Sale during the tax period the sale occurs, (y) payment of the obligations (other than the Loans) secured by a Lien on the assets in question, which is required to be repaid under the terms thereof as a result of such Asset Salethis Agreement, and (z) a reasonable reserve for any adjustments in respect to sale price of such assets and any indemnification payments (fixed or contingent) attributable to seller’s indemnities and representations and warranties to purchaser in respect of such Asset Sale undertaken by Borrower or any of its Subsidiaries in connection with such Asset Sale; provided that upon release of any such reserve, the amount released shall of Excess Proceeds will be considered Net Asset Sale Proceeds). “Asset Sale” means a sale, lease or sublease (as lessor or sublessor), sale and leaseback, assignment, conveyance, transfer, license or other disposition to, or any exchange of property with, any Person (other than reset to or with a Credit Party), in one transaction or a series of transactions, of all or any part of any Credit Party’s businesses, assets or properties of any kind, whether real, personal, or mixed and whether tangible or intangible, whether now owned or hereafter acquired, leased or licensed, including, without limitation, the capital stock of any Credit Party, other than inventory or other assets sold or leased, or cash or cash equivalents disposed of, in each case, in the ordinary course of business. For purposes of clarification, “Asset Sale” shall (i) include (x) the sale or other disposition for value of any contracts or (y) the early termination or modification of any contract resulting in the receipt by any Credit Party of a cash payment or other consideration in exchange for such event (other than payments in the ordinary course of business for accrued and unpaid amounts due through the date of termination or modification) and (ii) exclude any taking or other disposition by means of power of eminent domain, condemnation or similar power, threat or rightzero.
Appears in 1 contract
Sources: Securities Purchase Agreement (Xinyuan Real Estate Co., Ltd.)
Asset Sales. No later (a) The Company shall not, and shall not permit any of its Restricted Subsidiaries to, consummate an Asset Sale unless:
(i) except in the case of a disposition of Investments in Joint Ventures to the extent required by or made pursuant to customary buy/sell arrangements between the Joint Venture parties set forth in Joint Venture agreements or similar binding arrangements, the Company (or a Restricted Subsidiary, as the case may be) receives consideration at the time of such Asset Sale at least equal to the fair market value of the assets or Equity Interests issued or sold or otherwise disposed of;
(ii) such fair market value is determined in good faith by (a) an Officer of the General Partner if the value is less than $50.0 million, as evidenced by an Officers’ Certificate delivered to the first Trustee or (b) the Board of Directors of the General Partner if the value is $50.0 million or more, as evidenced by a Board Resolution of the General Partner; and
(iii) except in the case of a Permitted Asset Swap, at least 75% of the consideration therefor received by the Company or a Restricted Subsidiary is in the form of cash or Cash Equivalents or a combination thereof. For purposes of this provision, each of the following shall be deemed to be cash:
(A) any liabilities (as shown on the Company’s or such Restricted Subsidiary’s most recent balance sheet) of the Company or any Restricted Subsidiary (other than contingent liabilities and liabilities that are by their terms subordinated to the Notes or any 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 non-cash consideration received by the Company or any such Restricted Subsidiary from such transferee that is within 180 days after the Asset Sale converted by such Issuer or such Restricted Subsidiary into cash (to the extent of the cash received in that conversion); and
(C) accounts receivable of a business day retained by the Company or any Restricted Subsidiary, as the case may be, following the sale of such business, provided, that such accounts receivable are not (a) past due more than 90 days and (b) do not have a payment date greater than 120 days from the date of receipt, in any given month, by Borrower or any of its Subsidiaries the invoice creating such accounts receivable.
(b) Within 360 days after the receipt of any Net Proceeds from an Asset Sale (or within 90 days after such 360-day period in the event the Company enters into a binding commitment with respect to such application), the Company or a Restricted Subsidiary may apply such Net Proceeds at its option:
(i) to repay senior Indebtedness of the Company and/or its Restricted Subsidiaries under the Credit Facilities;
(ii) to satisfy all mandatory repayment obligations under the Credit Facilities arising by reason of such Asset Sale;
(iii) to make a capital expenditure in a Permitted Business;
(iv) to acquire other tangible assets that are used or useful in a Permitted Business; or
(v) to acquire all or substantially all of the properties or assets of a Person engaged in a Permitted Business or Equity Interests of a Person engaged in a Permitted Business so long as hereinafter definedsuch Person or the Person to which such properties or assets are transferred is or becomes a Restricted Subsidiary. Pending the final application of any such Net Proceeds, the Company or any Restricted Subsidiary may temporarily reduce revolving credit borrowings or otherwise invest such Net Proceeds in any manner that is not prohibited by the Indenture.
(c) Any Net Proceeds from Asset Sales that are not applied or invested as provided in excess of Section 4.07(b) above will constitute “Excess Proceeds”. When the aggregate amount of Budgeted Expenses (as defined in Section 15(e) hereof) as Excess Proceeds exceeds $25.0 million, the Issuers will make an Asset Sale Offer to all Holders of Notes and, at the option of the Issuers, all holders of other Indebtedness that is pari passu with the Notes to purchase the maximum principal amount of Notes and such other pari passu Indebtedness that may be purchased out of the Excess Proceeds; provided that Notes tendered shall be given priority over any such other Indebtedness unless such other Indebtedness contains provisions similar to those set forth in the most recent Budget (as defined Indenture with respect to offers to purchase or redeem with the proceeds of sales of assets in Section 15(e)) required to which case the Notes and such other Indebtedness will be delivered pursuant to Section 15(e) hereof, Borrower shall prepay the Forbearance Period Advances as set forth purchased on a pro rata basis. The offer price in Section 3(i) hereof in an aggregate amount equal to such excess amount; provided, that (A) such Net any Asset Sale Proceeds shall Offer will be deposited directly by the payee thereof into a deposit account held by Borrower at Amegy Bank, N.A. and (B) if, within 30 days of Borrower’s receipt of such Net Asset Sale Proceeds, Borrower has not paid one or more such Budgeted Expenses in an aggregate amount equal to 100% of principal amount plus accrued and unpaid interest and Liquidated Damages, if any, to the amount Purchase Date, and will be payable in cash. If any Excess Proceeds remain after consummation of an Asset Sale Offer, the Company or any Restricted Subsidiary may use such proceeds Excess Proceeds for any purpose not otherwise required to prepay the Forbearance Period Advances, then Borrower shall prepay the Forbearance Period Advances as set forth in Section 3(i) hereof in an amount equal to the amount not so paid. “Net Asset Sale Proceeds” means, with respect to any Asset Sale (as hereinafter defined), an amount equal to: (1) cash payments received by Borrower or any of its Subsidiaries from such Asset Sale, minus (2) any bona fide direct costs and expenses incurred in connection with such Asset Sale to the extent paid or payable to non-Affiliates, including (x) income or gains taxes payable or reasonably estimated to be payable prohibited by the seller as a result of any gain recognized in connection with such Asset Sale during the tax period the sale occurs, (y) payment of the obligations (other than the Loans) secured by a Lien on the assets in question, which is required to be repaid under the terms thereof as a result of such Asset Sale, and (z) a reasonable reserve for any adjustments in respect to sale price of such assets and any indemnification payments (fixed or contingent) attributable to seller’s indemnities and representations and warranties to purchaser in respect of such Asset Sale undertaken by Borrower or any of its Subsidiaries in connection with such Asset Sale; provided that upon release of any such reserve, the amount released shall be considered Net Asset Sale Proceeds). “Asset Sale” means a sale, lease or sublease (as lessor or sublessor), sale and leaseback, assignment, conveyance, transfer, license or other disposition to, or any exchange of property with, any Person (other than to or with a Credit Party), in one transaction or a series of transactions, of all or any part of any Credit Party’s businesses, assets or properties of any kind, whether real, personal, or mixed and whether tangible or intangible, whether now owned or hereafter acquired, leased or licensedIndenture, including, without limitation, the capital stock repurchase or redemption of Indebtedness of the Issuers or any Credit Party, other than inventory or other assets sold or leased, or cash or cash equivalents disposed of, in each caseSubsidiary Guarantor that is subordinated to the Notes or, in the ordinary course of business. For purposes of clarification, “Asset Sale” shall (i) include (x) the sale or other disposition for value case of any contracts or Subsidiary Guarantor, the Guarantee of such Subsidiary Guarantor. If the aggregate principal amount of Notes tendered into such Asset Sale Offer exceeds the amount of Excess Proceeds allocated for repurchases of Notes pursuant to the Asset Sale Offer for Notes, the Trustee shall select the Notes to be purchased on a pro rata basis (yor, in the case of notes in global form, the Trustee shall select the Notes to be purchased based on the Depositary’s method that most nearly approximates a pro rata selection). Upon completion of each Asset Sale Offer, the amount of Excess Proceeds shall be reset at zero.
(d) The Company shall comply with the early termination or modification 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 contract resulting in securities laws or regulations conflict with Section 3.10 or this Section 4.07, the receipt Company shall comply with the applicable securities laws and regulations and shall not be deemed to have breached its obligations under Section 3.10 or this Section 4.07 by any Credit Party virtue of a cash payment or other consideration in exchange for such event (other than payments in the ordinary course of business for accrued and unpaid amounts due through the date of termination or modification) and (ii) exclude any taking or other disposition by means of power of eminent domain, condemnation or similar power, threat or rightcompliance.
Appears in 1 contract
Sources: Fourth Supplemental Indenture (PVR Partners, L. P.)
Asset Sales. No later than None of the first business day following Obligors or any of their Subsidiaries will make any Asset Sale except:
(a) the date of receipt, in any given month, by Borrower or any of its Subsidiaries of any Net Asset Sale Proceeds (as hereinafter defined) in excess of the aggregate amount of Budgeted Expenses (as defined in Section 15(e) hereof) as set forth in the most recent Budget (as defined in Section 15(e)) required to be delivered pursuant to Section 15(e) hereof, Borrower shall prepay the Forbearance Period Advances as set forth in Section 3(i) hereof in an aggregate amount equal to such excess amount; provided, that (A) such Net Asset Sale Proceeds shall be deposited directly by the payee thereof into a deposit account held by Borrower at Amegy Bank, N.A. and (B) if, within 30 days of Borrower’s receipt of such Net Asset Sale Proceeds, Borrower has not paid one or more such Budgeted Expenses in an aggregate amount equal to 100% of the amount of such proceeds not otherwise required to prepay the Forbearance Period Advances, then Borrower shall prepay the Forbearance Period Advances as set forth in Section 3(i) hereof in an amount equal to the amount not so paid. “Net Asset Sale Proceeds” means, with respect to Subsidiary may make any Asset Sale if (i) the consideration therefor is not less than the fair market value of the related asset and (ii) after giving effect thereto, the aggregate fair market value of the assets as hereinafter defined), an amount equal to: reasonably determined by the Borrower disposed of in all Asset Sales (1other than Asset Sales permitted under the other clauses of this Section 6.04) cash payments received by during any fiscal year would not exceed $20,000,000 in any fiscal year of Borrower or $35,000,000 in the aggregate during the term hereof;
(b) the Borrower or any Subsidiary may make any other Asset Sale if after giving effect thereto, the aggregate fair market value of its Subsidiaries from such the assets as reasonably determined by the Borrower disposed of in all Asset Sale, minus Sales under this Section 6.04(b) during any fiscal year would not exceed $5,000,000 in any fiscal year of Borrower or $10,000,000 in the aggregate during the term of this Agreement;
(2c) any bona fide direct costs and expenses incurred in connection with such Obligor may make an Asset Sale to the extent paid or payable to non-Affiliates, including (x) income or gains taxes payable or reasonably estimated to be payable by the seller as another Obligor; any Subsidiary that is not a result of any gain recognized in connection with such Guarantor may make an Asset Sale during the tax period the sale occursto an Obligor; any Subsidiary that is not a Guarantor may make an Asset Sale to a Subsidiary that is not a Guarantor; and any Obligor may make an Asset Sale to a Subsidiary that is not a Guarantor so long as it is for cash or it would be a Permitted Investment.
(d) sales, (y) payment of the obligations (other than the Loans) secured by a Lien on the assets in question, which is required to be repaid under the terms thereof as a result of such Asset Saleexchanges and transfers of, and (z) a reasonable reserve for any adjustments in respect to sale price of such assets and any indemnification payments (fixed or contingent) attributable to seller’s indemnities and representations and warranties to purchaser in respect of such Asset Sale undertaken by Borrower or any of its Subsidiaries in connection with such Asset Sale; provided that upon release of any such reservethe making of, Permitted Investments, the amount released shall be considered Net Asset Sale Proceeds). “Asset Sale” means a saleincurrence of Permitted Liens and the making of Restricted Payments permitted by Section 6.07;
(e) Involuntary Dispositions;
(f) sales, lease or sublease (as lessor or sublessor), sale and leaseback, assignment, conveyance, transfer, license transfers or other disposition todispositions of accounts receivables that are delinquent or the collection thereof is reasonably in doubt for collection, compromise or any exchange of property with, any Person (other than to or with a Credit Party), in one transaction or a series of transactions, of all or any part of any Credit Party’s businesses, assets or properties of any kind, whether real, personal, or mixed and whether tangible or intangible, whether now owned or hereafter acquired, leased or licensed, including, without limitation, the capital stock of any Credit Party, other than inventory or other assets sold or leased, or cash or cash equivalents disposed of, in each case, settlement in the ordinary course of business. For purposes ;
(g) any surrender or waiver of clarificationcontract rights or the settlement, “Asset Sale” shall (i) include (x) the sale release or surrender of contract rights or other disposition for value of any contracts or (y) the early termination or modification of any contract resulting in the receipt by any Credit Party of a cash payment or other consideration in exchange for such event (other than payments litigation claims in the ordinary course of business for accrued and unpaid amounts due through business; and
(h) a transfer by the date Borrower of: (i) a promissory note from FEI International in the approximate principal amount of termination or modification) $25,200,000 and (ii) exclude any taking or other disposition by means all of power the Equity Interests in FEI International, to a Foreign Subsidiary of eminent domain, condemnation or similar power, threat or rightthe Borrower to be formed after the date hereof.
Appears in 1 contract
Sources: Credit Agreement (Fei Co)
Asset Sales. No later than (a) The Company will not, and will not permit any of its Restricted Subsidiaries to, consummate an Asset Sale unless:
(1) The Company or the first business day following Restricted Subsidiary, as the date case may be, receives consideration at the time of receiptthe Asset Sale at least equal to the Fair Market Value (which shall give effect to the assumption by another Person of any liabilities as provided for in clause (2)(A) of this paragraph and which, in the case of an Asset Sale involving consideration not exceeding $100 million, need not be determined by the Board of Directors) of the assets or Equity Interests issued or sold or otherwise disposed of; and
(2) (x) at least 75% of the consideration received in such Asset Sale is in the form of cash or Cash Equivalents or (y) the Fair Market Value of all forms of consideration other than cash or Cash Equivalents received for all Asset Sales since the Issue Date does not exceed in the aggregate 10% of Consolidated Net Worth of the Company at the time each determination is made; provided that any given monthof the following items shall be deemed to be cash and Cash Equivalents for the purposes of this clause (2):
(A) the assumption of any liabilities (as shown on the Company’s or the Restricted Subsidiary’s most recent balance sheet) of the Company or any Restricted Subsidiary of the Company (other than liabilities that are by their terms subordinated to Securities issued under this Indenture or any Subsidiary Guarantee) by the transferee of any such assets pursuant to a customary novation agreement that releases the Company or the Restricted Subsidiary from further liability;
(B) any securities, notes or other obligations received by Borrower the Company or any such Restricted Subsidiary from such transferee that are converted by the Company or the Restricted Subsidiary into cash or Cash Equivalents within 180 days following their receipt (to the extent of cash or Cash Equivalents received);
(C) other assets or rights used or useful in a Permitted Business, including, without limitation, assets or Investments of the nature or type described in clause (13) of the definition of “Permitted Investments” in Section 1.1; and
(D) accounts receivable of a business retained by the Company or any of its Restricted Subsidiaries following the sale of such business; provided, that such accounts receivable are not (i) past due more than 60 days and (ii) do not have a payment date greater than 90 days from the date of the invoice creating such accounts receivable; provided, that any Asset Sale pursuant to a condemnation, appropriation or other similar taking, including by deed in lieu of condemnation, or pursuant to the foreclosure or other enforcement of a Lien incurred not in violation of Section 4.5 or exercise by the related lienholder of rights with respect thereto, including by deed or assignment in lieu of foreclosure, shall not be required to satisfy the conditions set forth in clauses (1) and (2) of this paragraph.
(b) Within 365 days after the receipt of any Net Proceeds from an Asset Sale, the Company or the Restricted Subsidiary, as the case may be, may apply such Net Proceeds, at its option:
(1) to prepay, repay, purchase, repurchase or redeem any Senior Indebtedness of the Company or any Restricted Subsidiary of the Company;
(2) to acquire a controlling interest in another business or all or substantially all of the assets or operating line of another business, in each case engaged in a Permitted Business;
(3) to make capital expenditures; or
(4) to acquire other non-current assets to be used in a Permitted Business, including, without limitation, assets or Investments of the nature or type described in clause (13) of the definition of “Permitted Investments” in Section 1.1; provided that the Company or the applicable Restricted Subsidiary will be deemed to have complied with clause (2) or (3) of this sentence if, within 365 days of such Asset Sale, the Company or such Restricted Subsidiary shall have commenced and not completed or abandoned an expenditure or Investment, or entered into a binding agreement with respect to an expenditure or Investment, in compliance with clause (2) or (3), and that expenditure or Investment is substantially completed within a date one year and six months after the date of such Asset Sale. Pending the final application of any such Net Proceeds, the Company may temporarily reduce Indebtedness under any Credit Facility or otherwise expend or invest such Net Proceeds in any manner that is not prohibited by this Indenture. Any Net Proceeds from Asset Sales described in this paragraph that are not applied or invested as provided in the first sentence of this paragraph shall be deemed to constitute “Excess Asset Sale Proceeds Proceeds.”
(as hereinafter definedc) in excess of When the aggregate amount of Budgeted Expenses (as defined in Section 15(e) hereof) as set forth in the most recent Budget (as defined in Section 15(e)) required to be delivered pursuant to Section 15(e) hereof, Borrower shall prepay the Forbearance Period Advances as set forth in Section 3(i) hereof in an aggregate amount equal to such excess amount; provided, that (A) such Net Excess Asset Sale Proceeds exceeds $15 million, the Company shall be deposited directly by make an offer to the payee thereof into Holders of Securities and the holders of any other Senior Indebtedness that is subject to requirements with respect to the application of net proceeds from asset sales that are substantially similar to those contained in this Section 4.7 (an “Asset Sale Offer”) to purchase on a deposit account held by Borrower at Amegy Bank, N.A. pro rata basis (with the Excess Asset Sale Proceeds prorated between the Holders of the Securities and (B) if, within 30 days of Borrower’s receipt such holders of such Net other Senior Indebtedness based upon outstanding aggregate principal amounts) the maximum principal amount of the Securities and such other Senior Indebtedness that may be purchased or prepaid, as applicable, out of the prorated Excess Asset Sale Proceeds, Borrower has not paid one or more such Budgeted Expenses at an offer price in cash in an aggregate amount equal to 100% of the principal amount thereof (or accreted amount in the case of such proceeds not otherwise required any Senior Indebtedness issued with original issue discount) plus accrued and unpaid interest thereon to prepay the Forbearance Period Advancesdate of purchase (the “Asset Sale Payment”), then Borrower shall prepay in accordance with the Forbearance Period Advances as procedures set forth in this Section 3(i4.7. To the extent that the aggregate principal amount of Securities and other Senior Indebtedness tendered (and electing to be redeemed or repaid, as applicable) hereof pursuant to an Asset Sale Offer is less than the Excess Asset Sale Proceeds, the Company and its Restricted Subsidiaries may use any remaining Excess Asset Sale Proceeds for general corporate purposes and any other purpose not prohibited by this Indenture. If the aggregate principal amount of the Securities and such other Senior Indebtedness surrendered by holders thereof exceeds the amount of the prorated Excess Asset Sale Proceeds, the Company shall select the Securities and such other Senior Indebtedness to be purchased on a pro rata basis. Upon completion of each Asset Sale Offer, the amount of Excess Asset Sale Proceeds shall be reset at zero.
(d) When the Company becomes obligated to make an Asset Sale Offer, the Company will mail a notice to each Holder describing the transaction or transactions that constitute the Asset Sale and offering to repurchase Securities on the date (the “Asset Sale Payment Date”) specified in such notice, which date will be no earlier than 30 days nor later than 60 days from the date such notice is mailed, pursuant to the procedures required by this Indenture and described in such notice.
(e) On the Asset Sale Payment Date, the Company will, to the extent lawful:
(1) accept for payment all Securities or portions thereof properly tendered pursuant to the Asset Sale Offer, subject to proration based on the amount of Excess Asset Sale Proceeds pursuant to clause (c) above of this Section 4.7;
(2) deposit with the Paying Agent an amount equal to the amount not so paid. “Net of Excess Asset Sale Proceeds” meansProceeds that, after giving effect to proration with respect holders of other Senior Indebtedness pursuant to clause (c) above of this Section 4.7, is allocable to the Securities or portions thereof so tendered (or, if less, the aggregate Asset Sale Payment for all Securities validly tendered and not withdrawn); and
(3) deliver or cause to be delivered to the Trustee the Securities so accepted together with an Officers’ Certificate stating the aggregate principal amount of Securities or portions thereof being purchased by the Company.
(f) The Paying Agent will promptly mail (or cause to be transferred through the facilities of the Depositary) to each Holder of Securities so tendered and not withdrawn and accepted for payment in accordance with this Section 4.7, the Asset Sale Payment for such tendered Securities, and the Trustee will promptly authenticate and mail (or cause to be transferred by book entry) to each Holder a new Security equal in principal amount to any Asset Sale (as hereinafter defined), an amount equal to: (1) cash payments received by Borrower or any of its Subsidiaries from such Asset Sale, minus (2) any bona fide direct costs and expenses incurred in connection with such Asset Sale to the extent paid or payable to non-Affiliates, including (x) income or gains taxes payable or reasonably estimated to be payable by the seller as a result of any gain recognized in connection with such Asset Sale during the tax period the sale occurs, (y) payment unpurchased portion of the obligations (other than the Loans) secured Securities surrendered, if any, by a Lien on the assets in question, which is required to be repaid under the terms thereof as a result of such Asset Sale, and (z) a reasonable reserve for any adjustments in respect to sale price of such assets and any indemnification payments (fixed or contingent) attributable to seller’s indemnities and representations and warranties to purchaser in respect of such Asset Sale undertaken by Borrower or any of its Subsidiaries in connection with such Asset SaleHolder; provided that upon release each such new Security will be in a minimum principal amount of any such reserve, the amount released shall be considered Net Asset Sale Proceeds). “Asset Sale” means a sale, lease $2,000 or sublease (as lessor or sublessor), sale and leaseback, assignment, conveyance, transfer, license or other disposition to, or any exchange an integral multiple of property with, any Person (other than to or with a Credit Party), $1,000 in one transaction or a series of transactions, of all or any part of any Credit Party’s businesses, assets or properties of any kind, whether real, personal, or mixed and whether tangible or intangible, whether now owned or hereafter acquired, leased or licensed, including, without limitation, the capital stock of any Credit Party, other than inventory or other assets sold or leased, or cash or cash equivalents disposed of, in each case, in the ordinary course of business. For purposes of clarification, “Asset Sale” shall (i) include (x) the sale or other disposition for value of any contracts or (y) the early termination or modification of any contract resulting in the receipt by any Credit Party of a cash payment or other consideration in exchange for such event (other than payments in the ordinary course of business for accrued and unpaid amounts due through the date of termination or modification) and (ii) exclude any taking or other disposition by means of power of eminent domain, condemnation or similar power, threat or rightexcess thereof.
Appears in 1 contract
Sources: Indenture (Key Energy Services Inc)
Asset Sales. No later (a) The Company shall not, and shall not permit any Restricted Subsidiary to, cause, make or suffer to exist an Asset Sale, unless:
(1) the Company or such Restricted Subsidiary, as the case may be, receives consideration at the time of such Asset Sale at least equal to the Fair Market Value of the assets sold or otherwise disposed of; and
(2) except in the case of a Permitted Asset Swap, at least 75% of the consideration therefor received by the Company or such Restricted Subsidiary, as the case may be, is in the form of cash or Cash Equivalents. The Company shall immediately after or prior to opening or designating any account or an Asset Sale Proceeds Account send a written notice identifying such account to the Trustee. The Asset Sale Proceeds Account shall not be subject to any liens. Neither the Company nor any Restricted Subsidiary shall commingle the amounts in the Asset Sale Proceeds Account with any other amounts, other than any other proceeds of an Asset Sale. Within 365 days after the Company’s or a Restricted Subsidiary’s receipt of the Net Proceeds of any Asset Sale covered by this clause (a) the Company or such Restricted Subsidiary, at its option, may apply the Net Proceeds from such Asset Sale:
(1) to make one or more offers to the Holders of the Notes (and, at the option of the Company, the holders of other senior Indebtedness) to purchase Notes (and such senior Indebtedness) pursuant to and subject to the conditions contained in this Indenture (each, an “Asset Sale Offer”); provided, however, that in connection with any prepayment, repayment or purchase of Indebtedness pursuant to this clause (1), the Company or such Restricted Subsidiary shall permanently retire such Indebtedness; provided further that if the Company or such Restricted Subsidiary shall so reduce any senior Indebtedness (other than the Notes), the Company shall equally and ratably reduce Indebtedness under the Notes by making an offer to all Holders of Notes to purchase at a purchase price equal to 100% of the principal amount thereof, plus accrued and unpaid interest and additional interest, if any, the pro rata principal amount of the Notes, such offer to be conducted in accordance with the procedures set forth below for an Asset Sale Offer but without any further limitation in amount;
(2) to make an investment in (a) any one or more businesses; provided that such investment in any business is in the form of the acquisition of Capital Stock and results in the Company or a Restricted Subsidiary, as the case may be, owning an amount of the Capital Stock of such business such that it constitutes a Restricted Subsidiary, (b) capital expenditures or (c) acquisitions of other assets, in each of (a), (b) and (c), used or useful in a Similar Business; or
(3) to reduce Indebtedness of a Restricted Subsidiary, other than Indebtedness owed to the Company or another Restricted Subsidiary; provided that the acquisition of Indebtedness of a Restricted Subsidiary by the Company shall constitute a reduction in such Indebtedness. Any Net Proceeds that are not invested or applied as provided and within the time period set forth in the first business day following sentence of the immediately preceding paragraph shall be deemed to constitute “Excess Proceeds.” In the case of clause (2) above, a binding commitment shall be treated as a permitted application of the Net Proceeds from the date of receipt, in any given month, such commitment; provided that (x) such investment is consummated within 635 days after receipt by Borrower the Company or any Restricted Subsidiary of its Subsidiaries the Net Proceeds of any Net Asset Sale and (y) if such investment is not consummated within the period set forth in subclause (x), the Net Proceeds (as hereinafter defined) in excess of not so applied will be deemed to be Excess Proceeds. When the aggregate amount of Budgeted Expenses (as defined Excess Proceeds exceeds $25.0 million, the Company shall make an Asset Sale Offer to all Holders of the Notes, and, if required by the terms of any senior Indebtedness, to the holders of such senior Indebtedness, to purchase the maximum principal amount of Notes and such other senior Indebtedness, that are $2,000 or an integral multiple of $1,000 in Section 15(e) hereof) as set forth excess thereof that may be purchased out of the Excess Proceeds at an offer price in the most recent Budget (as defined in Section 15(e)) required to be delivered pursuant to Section 15(e) hereof, Borrower shall prepay the Forbearance Period Advances as set forth in Section 3(i) hereof cash in an aggregate amount equal to such excess amount; provided, that (A) such Net Asset Sale Proceeds shall be deposited directly by the payee thereof into a deposit account held by Borrower at Amegy Bank, N.A. and (B) if, within 30 days of Borrower’s receipt of such Net Asset Sale Proceeds, Borrower has not paid one or more such Budgeted Expenses in an aggregate amount equal to 100% of the principal amount thereof, plus accrued and unpaid interest, if any, to, but not including, the date fixed for the closing of such proceeds not otherwise required to prepay offer, in accordance with the Forbearance Period Advances, then Borrower shall prepay the Forbearance Period Advances as procedures set forth in Section 3(i) hereof in this Indenture. The Company shall commence an amount equal to the amount not so paid. “Net Asset Sale Proceeds” means, Offer with respect to Excess Proceeds within 30 days after the date that Excess Proceeds exceed $25.0 million by mailing the notice required pursuant to the terms of this Indenture, with a copy to the Trustee. To the extent that the aggregate amount of Notes and such senior Indebtedness tendered pursuant to an Asset Sale Offer is less than the Excess Proceeds, the Company may use any remaining Excess Proceeds for general corporate purposes, subject to other covenants contained in this Indenture. If the aggregate principal amount of Notes or the senior Indebtedness surrendered by such holders thereof exceeds the amount of Excess Proceeds, the Notes and such senior Indebtedness will be purchased on a pro rata basis based on principal amount of the Notes or such senior Indebtedness tendered. Upon completion of any such Asset Sale Offer, the amount of Excess Proceeds shall be reset at zero. After the Company or any Restricted Subsidiary has applied the Net Proceeds from any Asset Sale as provided in, and within the time periods required by, this paragraph (as hereinafter defineda), an amount equal to: the balance of such Net Proceeds, if any, from such Asset Sale may be used by the Company or such Restricted Subsidiary for any purpose not prohibited by the terms of this Indenture.
(b) For purposes of this Section 1017, the following are deemed to be cash or Cash Equivalents:
(1) cash payments received by Borrower any liabilities (as shown on the Company’s, or such Restricted Subsidiary’s most recent internally available balance sheet or in the notes thereto) of the Company or any of its Subsidiaries from such Asset Sale, minus Restricted Subsidiary other than liabilities that are by their terms subordinated to the Notes;
(2) any bona fide direct costs and expenses incurred in connection with securities received by the Company or such Asset Sale Restricted Subsidiary from such transferee that are converted by the Company or such Restricted Subsidiary into cash (to the extent paid or payable to non-Affiliates, including (x) income or gains taxes payable or reasonably estimated to be payable by the seller as a result of any gain recognized in connection with such Asset Sale during the tax period the sale occurs, (y) payment of the obligations (other than cash received) within 180 days following the Loans) secured by a Lien on the assets in question, which is required to be repaid under the terms thereof as a result closing of such Asset Sale, and ; and
(z3) a reasonable reserve for any adjustments Designated Non-cash Consideration received by the Company or any Restricted Subsidiary in respect to sale price of such assets and any indemnification payments (fixed or contingent) attributable to seller’s indemnities and representations and warranties to purchaser in respect of such Asset Sale undertaken by Borrower having an aggregate Fair Market Value, taken together with all other Designated Non-cash Consideration received pursuant to this clause (4) that is at that time outstanding, not to exceed the greater of (x) $100.0 million and (y) 3.0% of Total Assets at the time of the receipt of such Designated Non-cash Consideration, with the Fair Market Value of each item of Designated Non-cash Consideration being measured at the time received and without giving effect to subsequent changes in value.
(c) The Company shall comply with the requirements of Rule 14e-1 under the Exchange Act and any other securities laws and regulations thereunder to the extent such laws or any of its Subsidiaries regulations are applicable in connection with such the repurchase of the Notes pursuant to an Asset Sale; provided Sale Offer. To the extent that upon release the provisions of any such reservesecurities laws or regulations conflict with the provisions of this Indenture, the amount released Company shall comply with the applicable securities laws and regulations and shall not be considered Net Asset Sale Proceeds)deemed to have breached its obligations described in this Indenture by virtue thereof. “Asset Sale” means a sale, lease or sublease (as lessor or sublessor), sale and leaseback, assignment, conveyance, transfer, license If less than all of the Notes or other disposition tosenior Indebtedness are to be redeemed, or any exchange of property with, any Person (other than to or with a Credit Party), in one transaction or a series of transactions, of all or any part of any Credit Party’s businesses, assets or properties of any kind, whether real, personal, or mixed and whether tangible or intangible, whether now owned or hereafter acquired, leased or licensed, including, without limitation, the capital stock of any Credit Party, other than inventory or other assets sold or leased, or cash or cash equivalents disposed of, in each case, in the ordinary course of business. For purposes of clarification, “Asset Sale” Section 1109 shall (i) include (x) the sale or other disposition for value of any contracts or (y) the early termination or modification of any contract resulting in the receipt by any Credit Party of a cash payment or other consideration in exchange for such event (other than payments in the ordinary course of business for accrued and unpaid amounts due through the date of termination or modification) and (ii) exclude any taking or other disposition by means of power of eminent domain, condemnation or similar power, threat or rightapply.
Appears in 1 contract
Sources: Indenture (Aircastle LTD)
Asset Sales. No later than the first business day following the date of receiptThe Company will not, in any given month, by Borrower or and will not permit any of its Restricted Subsidiaries to, consummate an Asset Sale unless:
(1) the Company (or the Restricted Subsidiary, as the case may be) receives consideration at the time of the Asset Sale at least equal to the Fair Market Value of the assets or Equity Interests issued or sold or otherwise disposed of; and
(2) at least 75% of the consideration therefor received by the Company or such Restricted Subsidiary is in the form of cash. For purposes of this provision, each of the following shall be deemed to be cash:
(A) any liabilities, as shown on the Company'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 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 by the Company or such Restricted Subsidiary into cash, to the extent of the cash received in that conversion. Within 30 days after receipt of any Net Proceeds from an Asset Sale Sale, JII Holdings (or the applicable Restricted Subsidiary, as the case may be) may apply such Net Proceeds to repay Priority Lien Debt and, if such Priority Lien Debt is revolving credit Indebtedness, there shall be a corresponding reduction of the amount the Company and its Restricted Subsidiaries are permitted to borrow under clause (1)(A) of Section 4.09(b) hereof. Any Net Proceeds from Asset Sales that are not applied or invested as hereinafter defined) provided in excess of the preceding two paragraphs will constitute "Excess Proceeds." When the aggregate amount of Budgeted Expenses (as defined in Section 15(e) hereof) as Excess Proceeds exceeds $10.0 million, within five days thereof, the Issuers will make an Asset Sale Offer to all Holders of Notes and all holders of other Indebtedness that is pari passu with the Notes containing provisions similar to those set forth in this Indenture with respect to offers to purchase or redeem with the most recent Budget (as defined proceeds of sales of assets in accordance with Section 15(e)) required 3.09 hereof to purchase the maximum principal amount of Notes and such other pari passu Indebtedness that may be delivered pursuant to Section 15(e) hereof, Borrower shall prepay purchased out of the Forbearance Period Advances as set forth Excess Proceeds. The offer price in Section 3(i) hereof in an aggregate amount equal to such excess amount; provided, that (A) such Net any Asset Sale Proceeds shall Offer will be deposited directly by the payee thereof into a deposit account held by Borrower at Amegy Bank, N.A. and (B) if, within 30 days of Borrower’s receipt of such Net Asset Sale Proceeds, Borrower has not paid one or more such Budgeted Expenses in an aggregate amount equal to 100% of principal amount plus accrued and unpaid interest and Liquidated Damages, if any, to the date of purchase, and will be payable in cash. If any Excess Proceeds remain after consumption of an Asset Sale Offer, the Company may use such Excess Proceeds for any purpose not otherwise prohibited by this Indenture. If the aggregate principal amount of Notes and such other pari passu Indebtedness tendered into such Asset Sale Offer exceeds the amount of Excess Proceeds, the Trustee shall select the Notes and such proceeds not otherwise required other pari passu Indebtedness to prepay be purchased on a pro rata basis based on the Forbearance Period Advancesprincipal amount of Notes and such other pari passu Indebtedness tendered. Upon completion of each Asset Sale Offer, then Borrower the amount of Excess Proceeds shall prepay be reset at zero. The Issuers will comply with the Forbearance Period Advances as set forth in Section 3(i) hereof in an amount equal requirements of Rule 14e-1 under the Exchange Act and any other securities laws and regulations thereunder to the amount not so paid. “Net Asset Sale Proceeds” means, with respect to any Asset Sale (as hereinafter defined), an amount equal to: (1) cash payments received by Borrower or any of its Subsidiaries from extent such Asset Sale, minus (2) any bona fide direct costs laws and expenses incurred regulations are applicable in connection with such each repurchase of Notes pursuant to an Asset Sale to Offer. To the extent paid or payable to non-Affiliates, including (x) income or gains taxes payable or reasonably estimated to be payable by that the seller as a result provisions of any gain recognized in connection securities laws or regulations conflict with such Asset Sale during the tax period provisions of Sections 3.09 or 4.10 of this Indenture, the sale occurs, (y) payment of Issuers will comply with the applicable securities laws and regulations and will not be deemed to have breached their obligations (other than the Loans) secured under Section 3.09 or this Section 4.10 by a Lien on the assets in question, which is required to be repaid under the terms thereof as a result virtue of such Asset Sale, and (z) a reasonable reserve for any adjustments in respect to sale price of such assets and any indemnification payments (fixed or contingent) attributable to seller’s indemnities and representations and warranties to purchaser in respect of such Asset Sale undertaken by Borrower or any of its Subsidiaries in connection with such Asset Sale; provided that upon release of any such reserve, the amount released shall be considered Net Asset Sale Proceeds). “Asset Sale” means a sale, lease or sublease (as lessor or sublessor), sale and leaseback, assignment, conveyance, transfer, license or other disposition to, or any exchange of property with, any Person (other than to or with a Credit Party), in one transaction or a series of transactions, of all or any part of any Credit Party’s businesses, assets or properties of any kind, whether real, personal, or mixed and whether tangible or intangible, whether now owned or hereafter acquired, leased or licensed, including, without limitation, the capital stock of any Credit Party, other than inventory or other assets sold or leased, or cash or cash equivalents disposed of, in each case, in the ordinary course of business. For purposes of clarification, “Asset Sale” shall (i) include (x) the sale or other disposition for value of any contracts or (y) the early termination or modification of any contract resulting in the receipt by any Credit Party of a cash payment or other consideration in exchange for such event (other than payments in the ordinary course of business for accrued and unpaid amounts due through the date of termination or modification) and (ii) exclude any taking or other disposition by means of power of eminent domain, condemnation or similar power, threat or rightcompliance.
Appears in 1 contract
Sources: Indenture (Jordan Industries Inc)
Asset Sales. No later The Company will not, and will not permit any Subsidiary to, make any Asset Disposition, except (i) the Asset Dispositions described on Schedule 11.6 hereof, (ii) additional Asset Dispositions of the Company and its Subsidiaries (other than BST and its Subsidiaries) in an aggregate amount (excluding the first business day following amount of any Asset Dispositions described on Schedule 11.6) based on Fair Market Value not to exceed: (a) with respect to the period from the Closing Date through December 31, 2007, $6,420,000, or (b) during any fiscal year thereafter, $11,000,000, and with respect to which, subject to the mandatory prepayment provisions set forth in Section 9.3, the Company or such Subsidiary intends to apply the Net Proceeds Amount arising from any such Transfer under clauses (a) or (b) hereof to a Debt Prepayment Application or to reinvestments in the Company or such Subsidiary (in the form of capital expenditures or otherwise) within 365 days after such Transfer, and the Company or such Subsidiary applies such Net Proceeds Amount within such period and (iii) Asset Dispositions of BST and its Subsidiaries in an aggregate amount based on Fair Market Value not to exceed €4,000,000 per fiscal year of BST. Notwithstanding the foregoing, the Company will not, and will not permit any Subsidiary to, make any Asset Disposition to any Project Subsidiary (other than any Asset Disposition consisting of an equity Investment in, or loan constituting WLR Subordinated Indebtedness to, any such Project Subsidiary, by (i) WLR or any WLR Affiliate or (ii) the Company with the proceeds of an equity Investment in, or loan constituting WLR Subordinated Indebtedness to, the Company by WLR or any WLR Affiliate) if, on the date of receiptsuch proposed Transfer, a default then exists in any given month, by Borrower or any of its Subsidiaries respect of any Net Indebtedness owing by such Project Subsidiary. Notwithstanding anything to the contrary herein, the Company will not make any Asset Sale Proceeds (as hereinafter defined) in excess Disposition or Transfer of the aggregate amount of Budgeted Expenses any Pledged Collateral (as defined in Section 15(e) hereof) as set forth in the most recent Budget (as defined in Section 15(ePledge Agreement)) required to be delivered pursuant to Section 15(e) hereof, Borrower shall prepay the Forbearance Period Advances as set forth in Section 3(i) hereof in an aggregate amount equal to such excess amount; provided, that (A) such Net Asset Sale Proceeds shall be deposited directly by the payee thereof into a deposit account held by Borrower at Amegy Bank, N.A. and (B) if, within 30 days of Borrower’s receipt of such Net Asset Sale Proceeds, Borrower has not paid one or more such Budgeted Expenses in an aggregate amount equal to 100% of the amount of such proceeds not otherwise required to prepay the Forbearance Period Advances, then Borrower shall prepay the Forbearance Period Advances as set forth in Section 3(i) hereof in an amount equal to the amount not so paid. “Net Asset Sale Proceeds” means, with respect to any Asset Sale (as hereinafter defined), an amount equal to: (1) cash payments received by Borrower or any of its Subsidiaries from such Asset Sale, minus (2) any bona fide direct costs and expenses incurred in connection with such Asset Sale to the extent paid or payable to non-Affiliates, including (x) income or gains taxes payable or reasonably estimated to be payable by the seller as a result of any gain recognized in connection with such Asset Sale during the tax period the sale occurs, (y) payment of the obligations (other than the Loans) secured by a Lien on the assets in question, which is required to be repaid under the terms thereof as a result of such Asset Sale, and (z) a reasonable reserve for any adjustments in respect to sale price of such assets and any indemnification payments (fixed or contingent) attributable to seller’s indemnities and representations and warranties to purchaser in respect of such Asset Sale undertaken by Borrower or any of its Subsidiaries in connection with such Asset Sale; provided that upon release of any such reserve, the amount released shall be considered Net Asset Sale Proceeds). “Asset Sale” means a sale, lease or sublease (as lessor or sublessor), sale and leaseback, assignment, conveyance, transfer, license or other disposition to, or any exchange of property with, any Person (other than to or with a Credit Party), in one transaction or a series of transactions, of all or any part of any Credit Party’s businesses, assets or properties of any kind, whether real, personal, or mixed and whether tangible or intangible, whether now owned or hereafter acquired, leased or licensed, including, without limitation, the capital stock of any Credit Party, other than inventory or other assets sold or leased, or cash or cash equivalents disposed of, in each case, in the ordinary course of business. For purposes of clarification, “Asset Sale” shall (i) include (x) the sale or other disposition for value of any contracts or (y) the early termination or modification of any contract resulting in the receipt by any Credit Party of a cash payment or other consideration in exchange for such event (other than payments in the ordinary course of business for accrued and unpaid amounts due through the date of termination or modification) and (ii) exclude any taking or other disposition by means of power of eminent domain, condemnation or similar power, threat or right.
Appears in 1 contract
Sources: Senior Subordinated Note Purchase Agreement (International Textile Group Inc)
Asset Sales. No later (a) The Company will not, and will not permit any of its Restricted Subsidiaries to, consummate an Asset Sale unless:
(1) the Company (or the Restricted Subsidiary, as the case may be) receives consideration at the time of the Asset Sale at least equal to the Fair Market Value of the Equity Interests or other assets issued or sold or otherwise disposed of; and
(2) (x) at least 75% of the consideration received in the Asset Sale by the Company or such Restricted Subsidiary is in the form of cash or (y) the Fair Market Value of all forms of consideration other than cash received for all Asset Sales since the first business day Issue Date does not exceed in the aggregate 15% of the Adjusted Consolidated Net Tangible Assets of the Company at the time each determination is made. For purposes of this provision, each of the following shall be deemed to be cash:
(i) any liabilities, as shown on the Company’s most recent consolidated balance sheet, of the Company or any Restricted Subsidiary (other than contingent liabilities and Subordinated Obligations) 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;
(ii) any securities, notes or other obligations received by the Company or any such Restricted Subsidiary from such transferee that are converted by the Company or such Restricted Subsidiary into cash within 180 days after the date of receiptthe Asset Sale, to the extent of the cash received in that conversion;
(iii) any stock or assets of the kind referred to in clause (b)(2) or (b)(3) below; and
(iv) accounts receivable of a business retained by the Company or any Restricted Subsidiary, as the case may be, following the sale of such business; provided that such accounts receivable are not (x) past due more than 90 days and (y) do not have a payment date greater than 120 days from the date of the invoice creating such accounts receivable.
(b) Within 365 days after the receipt of any Net Proceeds from an Asset Sale, or, if within such 365-day period the Company has entered into a binding commitment or commitments with respect to the actions described in clause (2) or (3) below, within 180 days after the entry into such binding commitment or commitments (or, if later, 365 days after receipt of such Net Proceeds), the Company (or the applicable Restricted Subsidiary, as the case may be) may apply such Net Proceeds:
(i) if the Asset Sale is a Collateral Disposition, to repay, prepay, redeem or repurchase Priority Lien Debt or Parity Lien Debt; provided that with respect to Parity Lien Debt, such repayment, prepayment, redemption or repurchase must be made either by a pro rata redemption, repayment or repurchase of outstanding Parity Lien Debt or by an offer to purchase on a pro rata basis made to all holders of Parity Lien Debt under the procedures set forth in Section 3.09 or (ii) if such Asset Sale is not a Collateral Disposition, to repay, prepay, redeem or repurchase Indebtedness of the Company or a Restricted Subsidiary that is not a Subordinated Obligation (but, in each case, excluding Indebtedness between or among the Company or any given month, by Borrower Restricted Subsidiary or any of their Affiliates);
(2) to invest in Additional Assets;
(3) to make capital expenditures in respect of the Company’s or its Subsidiaries Restricted Subsidiaries’ Oil and Gas Business; or
(4) any combination of the foregoing. Pending the application of any Net Proceeds in the manner provided above, the Company or any Restricted Subsidiary may invest the Net Proceeds in any manner that is not prohibited by this Indenture.
(c) Any Net Proceeds from Asset Sale Proceeds (Sales that are not applied or invested as hereinafter definedprovided in Section 4.11(b) in excess of will constitute “Excess Proceeds.” Within five days after the date that the aggregate amount of Budgeted Expenses Excess Proceeds exceeds $20.0 million, the Company will make an Asset Sale Offer to all Holders of Notes and (as defined i) with respect to Excess Proceeds from any Asset Sale that is a Collateral Disposition, all holders of other Parity Lien Obligations, or (ii) with respect to other Excess Proceeds, all holders of other Indebtedness that is pari passu in Section 15(eright of payment with the Notes (with a copy to the Trustee) hereof) as containing provisions similar to those set forth in this Indenture (such applicable holders of any Parity Lien Obligations or other applicable pari passu Indebtedness, the most recent Budget (as defined “Other Offer Parties”) with respect to offers to purchase, repay or redeem with the proceeds of sales of assets in accordance with Section 15(e)) required 3.09 to purchase or repay on a pro rata basis the maximum principal amount of Notes and such other Indebtedness that may be delivered pursuant to Section 15(e) hereof, Borrower shall prepay purchased or repaid out of the Forbearance Period Advances as set forth Excess Proceeds. The offer price in Section 3(i) hereof in an aggregate amount equal to such excess amount; provided, that (A) such Net any Asset Sale Proceeds shall Offer will be deposited directly by the payee thereof into a deposit account held by Borrower at Amegy Bank, N.A. and (B) if, within 30 days of Borrower’s receipt of such Net Asset Sale Proceeds, Borrower has not paid one or more such Budgeted Expenses in an aggregate amount equal to 100% of the principal amount plus accrued and unpaid interest to, but excluding, the date of purchase or repayment, and will be payable in cash. If any Excess Proceeds remain after consummation of an Asset Sale Offer, the Company may use those Excess Proceeds for any purpose not otherwise prohibited by this Indenture. If the aggregate purchase price for Notes tendered into such Asset Sale Offer exceeds the amount of such proceeds not otherwise required to prepay Excess Proceeds allocated for the Forbearance Period Advances, then Borrower shall prepay the Forbearance Period Advances as set forth in Section 3(i) hereof in an amount equal purchase of Notes pursuant to the amount not so paid. “Net Asset Sale Proceeds” meansOffer, the Trustee shall select the Notes to be purchased on a pro rata basis (or, in the case of Notes represented by a Global Note, the Trustee will select Notes for purchase by such method as DTC may require), subject to adjustment to maintain authorized minimum denominations. Upon completion of each Asset Sale Offer, the amount of Excess Proceeds will be reset at zero.
(d) The Company will comply with the requirements of Rule 14e-1 under the Exchange Act and any other securities laws and regulations thereunder to the extent such laws and regulations are applicable in connection with each repurchase of Notes pursuant to an Asset Sale Offer. To the extent that the provisions of any securities laws or regulations conflict with the provisions of Section 3.09 or this Section 4.11, the Company will comply with the applicable securities laws and regulations and will not be deemed to have breached its obligations under Section 3.09 or this Section 4.11 by virtue of such compliance.
(e) Notwithstanding Section 4.11(a) and (b), the Company and its Restricted Subsidiaries will be permitted to consummate an Asset Sale without complying with such clauses to the extent that:
(1) the consideration for such Asset Sale constitutes Additional Assets and/or the assumption of obligations secured by Liens that burden some or all of the assets being sold and/or cash or Cash Equivalents; provided that, in the case of any such assumption, (i) the Person assuming such obligations shall have no recourse with respect to any Asset Sale (as hereinafter defined), an amount equal to: (1) cash payments received by Borrower such obligations to the Company or any of its Restricted Subsidiaries from such Asset Sale, minus and (2ii) any bona fide direct costs and expenses incurred in connection with such Asset Sale to the extent paid or payable to non-Affiliates, including (x) income or gains taxes payable or reasonably estimated to be payable by the seller as a result of any gain recognized in connection with such Asset Sale during the tax period the sale occurs, (y) payment no assets of the obligations (other than the Loans) secured by a Lien on the assets in question, which is required to be repaid under the terms thereof as a result of such Asset Sale, and (z) a reasonable reserve for any adjustments in respect to sale price of such assets and any indemnification payments (fixed or contingent) attributable to seller’s indemnities and representations and warranties to purchaser in respect of such Asset Sale undertaken by Borrower Company or any of its Restricted Subsidiaries (other than those assets being sold) are subject to such Liens; and
(2) such Asset Sale is for Fair Market Value; provided that at least 75% of the total consideration received by the Company or any of its Restricted Subsidiaries in connection with any such Asset Sale; provided that upon release Sale shall be in the form of any such reserveAdditional Assets, the amount released shall be considered Net Asset Sale Proceeds). “Asset Sale” means a saleassumption of obligations secured by Liens described in clause (e)(1) above, lease cash or sublease Cash Equivalents (as lessor or sublessor), sale and leaseback, assignment, conveyance, transfer, license or other disposition to, or any exchange of property with, any Person (other than to or with a Credit Party), in one transaction or a series of transactions, of all or any part of any Credit Party’s businesses, assets or properties of any kind, whether real, personal, or mixed and whether tangible or intangible, whether now owned or hereafter acquired, leased or licensed, including, without limitation, the capital stock of any Credit Party, other than inventory or other assets sold or leaseddeemed cash pursuant to clause (a)(2) above), or cash or cash equivalents disposed ofany combination of the foregoing, in each case, in the ordinary course of business. For purposes of clarification, “Asset Sale” and that any Net Proceeds so received shall (i) include (x) the sale or other disposition for value of any contracts or (y) the early termination or modification of any contract resulting in the receipt by any Credit Party of a cash payment or other consideration in exchange for such event (other than payments in the ordinary course of business for accrued and unpaid amounts due through the date of termination or modificationbe subject to Section 4.11(a) and (ii) exclude any taking or other disposition by means of power of eminent domain, condemnation or similar power, threat or rightb).
Appears in 1 contract
Sources: Indenture (W&t Offshore Inc)
Asset Sales. No Not later than the first business day three (3) Business Days following the date receipt of receipt, in any given month, Net Cash Proceeds of any Asset Sale by Borrower the Designated Company or any of its Subsidiaries of any Net Asset Sale Proceeds (as hereinafter defined) in excess Restricted Subsidiaries, the applicable Co-Borrowers shall make prepayments of the aggregate amount of Budgeted Expenses (as defined Term Loans in accordance with Section 15(e2.10(g) hereof) as set forth in the most recent Budget (as defined in Section 15(e)) required to be delivered pursuant to Section 15(e) hereof, Borrower shall prepay the Forbearance Period Advances as set forth in Section 3(i) hereof in an aggregate amount equal to such excess amount; provided, that (A) such Net Asset Sale Proceeds shall be deposited directly by the payee thereof into a deposit account held by Borrower at Amegy Bank, N.A. and (Bh) if, within 30 days of Borrower’s receipt of such Net Asset Sale Proceeds, Borrower has not paid one or more such Budgeted Expenses in an aggregate amount equal to 100% of such Net Cash Proceeds; provided, that if at the time that any such prepayment would be required, such Co- 1160381.015-CHISR02A - MSW Borrower is required to prepay or offer to repurchase (x) Permitted Short Term Indebtedness, solely to the extent that such Asset Sale constitutes a Specified Divestiture, (y) Permitted First Priority Refinancing Debt, or (z) any Additional Senior Secured Indebtedness that is secured on a pari passu basis with the Secured Obligations pursuant to the terms of the documentation governing such Indebtedness, in the case of clauses (x) through (z), with the Net Cash Proceeds of such Asset Sale (such Permitted Short Term Indebtedness, Permitted First Priority Refinancing Debt or Additional Senior Secured Indebtedness required to be prepaid or offered to be so repurchased, “Other Applicable Indebtedness”), then such Co-Borrower shall apply such Net Cash Proceeds on a pro rata basis (determined on the basis of the aggregate outstanding principal amount of the Term Loans and Other Applicable Indebtedness at such time; provided, that the portion of such net proceeds allocated to the Other Applicable Indebtedness shall not exceed the amount of such proceeds not Net Cash Proceeds required to be allocated to the Other Applicable Indebtedness pursuant to the terms thereof, and the remaining amount, if any, of such Net Cash Proceeds shall be allocated to the Term Loans in accordance with the terms hereof) to the prepayment of the Term Loans and to the prepayment or repurchase of Other Applicable Indebtedness, and the amount of prepayment of the Term Loans that would have otherwise been required pursuant to this Section 2.10(c) shall be reduced accordingly; provided further, that to the extent the holders of Other Applicable Indebtedness decline to have such indebtedness prepaid or repurchased, the declined amount shall promptly (and in any event within 10 Business Days after the date of such rejection) be applied to prepay the Forbearance Period Advances, then Borrower Term Loans in accordance with the terms hereof; provided further that:
(i) no such prepayment shall prepay the Forbearance Period Advances as set forth in be required under this Section 3(i2.10(c) hereof in an amount equal to the amount not so paid. “Net Asset Sale Proceeds” means, with respect to (A) any Asset Sale permitted by Section 6.06 other than clauses (b) and (i) thereof, (B) the disposition of property which constitutes a Casualty Event, or (C) Asset Sales for fair market value resulting in less than $50,000,000 in Net Cash Proceeds in any fiscal year; and
(ii) so long as hereinafter defined)no Event of Default shall then exist or would arise therefrom, an amount equal to: (1) cash payments received by Borrower or any of its Subsidiaries from such Asset Sale, minus (2) any bona fide direct costs and expenses incurred in connection with proceeds shall not be required to be so applied on such Asset Sale date to the extent paid that the Designated Company shall have delivered an Officers’ Certificate to the Administrative Agent on or payable prior to non-Affiliates, including such date stating that such Net Cash Proceeds are expected to be reinvested in fixed or capital assets or to make Permitted Acquisitions (and (x) income in the case of Net Cash Proceeds received from the arm’s length sale or gains taxes payable disposition for cash of Equity Interests in a Joint Venture Subsidiary for fair market value or reasonably estimated the issuance of Equity Interests in a Joint Venture Subsidiary, in each case as permitted under Section 6.06 hereof, such Net Cash Proceeds may also be used to be payable by the seller make investments in joint ventures so long as a result Company owns at least 50% of any gain recognized the Equity Interests in connection with such Asset Sale during the tax period the sale occurs, joint venture and (y) payment in the case of the obligations Net Cash Proceeds from an Asset Sale by a Joint Venture Subsidiary, such Net Cash Proceeds may also be used by such Joint Venture to reinvest in property (other than the Loanscash, Cash Equivalents and securities) secured by a Lien on the assets in question, which is required to be repaid owned by such Joint Venture and used in an activity permitted under Section 6.15) 1160381.015-CHISR02A - MSW within 365 days (or in the terms thereof as event the Designated Company or any Restricted Subsidiary has entered into a result binding agreement to make such reinvestment within such 365 day period, such period shall be extended for an additional 365 days with respect to the portion of such Asset Sale, and (zNet Cash Proceeds so committed to be reinvested) a reasonable reserve for any adjustments in respect to sale price of such assets and any indemnification payments (fixed or contingent) attributable to seller’s indemnities and representations and warranties to purchaser in respect following the date of such Asset Sale undertaken by Borrower or any (which Officers’ Certificate shall set forth the estimates of its Subsidiaries in connection with such Asset Salethe proceeds to be so expended); provided that upon release of any such reserve, the amount released shall be considered Net Asset Sale Proceeds). “Asset Sale” means a sale, lease or sublease (as lessor or sublessor), sale and leaseback, assignment, conveyance, transfer, license or other disposition to, or any exchange of property with, any Person (other than to or with a Credit Party), in one transaction or a series of transactions, of if all or any part portion of any Credit Party’s businessessuch Net Cash Proceeds is not so reinvested within such 365-day period (as such period may be extended pursuant to the foregoing), assets or properties such unused portion shall be applied on the last day of any kind, whether real, personal, or mixed and whether tangible or intangible, whether now owned or hereafter acquired, leased or licensed, including, without limitation, the capital stock of any Credit Party, other than inventory or other assets sold or leased, or cash or cash equivalents disposed of, such period to mandatory prepayments as provided in each case, in the ordinary course of business. For purposes of clarification, “Asset Sale” shall (i) include (x) the sale or other disposition for value of any contracts or (y) the early termination or modification of any contract resulting in the receipt by any Credit Party of a cash payment or other consideration in exchange for such event (other than payments in the ordinary course of business for accrued and unpaid amounts due through the date of termination or modification) and (ii) exclude any taking or other disposition by means of power of eminent domain, condemnation or similar power, threat or rightthis Section 2.10(c).
Appears in 1 contract
Sources: Credit Agreement (Novelis Inc.)
Asset Sales. No later than (a) For so long as any Senior Loan Obligations or any Permitted Refinancing Indebtedness thereof remains outstanding or any commitment to provide any Senior Loans shall exist, the first business day following Company shall, and shall cause its Restricted Subsidiaries to, comply with the covenants governing the consummation of Asset Sales contained in the Senior Loan Documents (as the same may be amended, restated, supplemented, replaced, refinanced or modified from time to time or waived or consented to in writing) or any corresponding provisions contained in the credit agreement or facility governing the Permitted Refinancing Indebtedness (as applicable).
(b) From and after the date of receipta Covenant Trigger Event:
(1) The Company will not, and will not permit any of its Restricted Subsidiaries to, directly or indirectly consummate an Asset Sale unless:
(A) the Company (or the Restricted Subsidiary, as the case may be) receives consideration at the time of such Asset Sale at least equal to the Fair Market Value of the assets or Equity Interests issued or sold or otherwise disposed of; and
(B) at least 75% of the consideration therefor received by the Company or such Restricted Subsidiary is in the form of cash, Cash Equivalents or Replacement Assets or a combination of both. For purposes of this Section 4.10(b)(1)(B), each of the following shall be deemed to be cash:
(i) any given monthliabilities (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, Indebtedness that is by Borrower its terms subordinated to the Notes or any Note Guarantee and liabilities to the extent owed to the Company or any Restricted Subsidiary of the Company) that are assumed by the transferee of any such assets or Equity Interests pursuant to a written assignment and assumption agreement that releases the Company or such Restricted Subsidiary from further liability therefor;
(ii) any securities, notes or other obligations received by the Company or any such Restricted Subsidiary from such transferee that are converted by the Company or such Restricted Subsidiary into Cash Equivalents or Replacement Assets within 180 days of the receipt thereof (to the extent of the Cash Equivalents or Replacement Assets received in that conversion);
(iii) any Designated Noncash Consideration received by the 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 (iii) that is at that time outstanding, not to exceed $25 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).
(2) Within 365 days after the receipt by the Company or any of its Restricted Subsidiaries of any Net Proceeds from an Asset Sale (whether or not occurring after the Covenant Trigger Event), the Company or such Restricted Subsidiary may apply such Net Proceeds at its option:
(A) to purchase Replacement Assets;
(B) to make Restricted Payments to the extent permitted under Section 4.07 hereof; or
(C) to make Permitted Investments. Pending the final application of any such Net Proceeds, the Company or such Restricted Subsidiary may temporarily reduce revolving credit borrowings or otherwise invest such Net Proceeds in any manner that is not prohibited by this Indenture.
(3) Notwithstanding the foregoing, in the cases of clause (A) of subparagraph (b)(2) of this Section 4.10, the Company (or the applicable Restricted Subsidiary, as hereinafter definedthe case may be) will be deemed to have complied with its obligations if it enters into a binding written commitment to acquire Replacement Assets prior to 365 days after the receipt of the applicable Net Proceeds; provided, that such binding commitment will be subject only to customary conditions and such acquisition is completed within 135 days following the expiration of the aforementioned 365-day period. If the acquisition contemplated by such binding commitment is not consummated on or before 135th day, and the Company (or the applicable Restricted Subsidiary, as the case may be) has not applied the Net Proceeds for another purpose permitted by the applicable preceding paragraph on or before such 135th day, such commitment shall be deemed not to have been a permitted application of Net Proceeds.
(4) Any Net Proceeds from Asset Sales that are not applied or invested as provided in excess of Section 4.10(b)(2) will constitute “Excess Proceeds.” When the aggregate amount of Budgeted Expenses (as defined in Section 15(e) hereof) as set forth in Excess Proceeds exceeds $25 million, within 15 days thereof, the most recent Budget (as defined in Section 15(e)) required to be delivered pursuant to Section 15(e) hereofCompany will, Borrower shall prepay from and after the Forbearance Period Advances as set forth in Section 3(i) hereof in date of a Covenant Trigger Event, make an aggregate amount equal to such excess amount; provided, that (A) such Net Asset Sale Proceeds shall Offer to all Holders of Notes to purchase, prepay or redeem the maximum principal amount of Notes that may be deposited directly by purchased, prepaid or redeemed out of the payee thereof into a deposit account held by Borrower at Amegy Bank, N.A. and (B) if, within 30 days of Borrower’s receipt of such Net Excess Proceeds. The offer price in any Asset Sale Proceeds, Borrower has not paid one or more such Budgeted Expenses in an aggregate amount Offer will be equal to 100% of the principal amount, plus accrued and unpaid interest to the date of purchase, prepayment or redemption, subject to the rights of Holders of Notes on the relevant record date to receive interest due on the relevant interest payment date, and will be payable in cash. If any Excess Proceeds remain after consummation of an Asset Sale Offer, the Company may use those Excess Proceeds for any purpose not otherwise prohibited by this Indenture or the Security Documents. If the aggregate principal amount of such proceeds not otherwise Notes tendered in (or required to prepay be prepaid or redeemed in connection with) such Asset Sale Offer exceeds the Forbearance Period Advancesamount of Excess Proceeds, then Borrower shall prepay the Forbearance Period Advances Notes will be purchased on a pro rata basis, based on the amounts tendered or required to be prepaid or redeemed (with such adjustments as set forth may be deemed appropriate by the Company so that only Notes in Section 3(idenominations of $500 or an integral multiple of $1.00 in excess thereof, will be purchased). Upon completion of each Asset Sale Offer, the amount of Excess Proceeds will be reset at zero.
(5) hereof in an amount equal The Company will comply with the requirements of Rule 14e-1 under the Exchange Act and any other securities laws and regulations thereunder to the amount not so paid. “Net Asset Sale Proceeds” means, with respect to any Asset Sale (as hereinafter defined), an amount equal to: (1) cash payments received by Borrower or any of its Subsidiaries from such Asset Sale, minus (2) any bona fide direct costs extent those laws and expenses incurred regulations are applicable in connection with such each repurchase of Notes pursuant to an Asset Sale to Offer. To the extent paid or payable to non-Affiliates, including (x) income or gains taxes payable or reasonably estimated to be payable by that the seller as a result provisions of any gain recognized in connection securities laws or regulations conflict with such Asset Sale during the tax period provisions of Section 3.09 hereof or this Section 4.10, the sale occurs, (y) payment of Company will comply with the applicable securities laws and regulations and will not be deemed to have breached its obligations (other than the Loans) secured under Section 3.09 hereof or this Section 4.10 by a Lien on the assets in question, which is required to be repaid under the terms thereof as a result virtue of such Asset Sale, and (z) a reasonable reserve for any adjustments in respect to sale price of such assets and any indemnification payments (fixed or contingent) attributable to seller’s indemnities and representations and warranties to purchaser in respect of such Asset Sale undertaken by Borrower or any of its Subsidiaries in connection with such Asset Sale; provided that upon release of any such reserve, the amount released shall be considered Net Asset Sale Proceeds). “Asset Sale” means a sale, lease or sublease (as lessor or sublessor), sale and leaseback, assignment, conveyance, transfer, license or other disposition to, or any exchange of property with, any Person (other than to or with a Credit Party), in one transaction or a series of transactions, of all or any part of any Credit Party’s businesses, assets or properties of any kind, whether real, personal, or mixed and whether tangible or intangible, whether now owned or hereafter acquired, leased or licensed, including, without limitation, the capital stock of any Credit Party, other than inventory or other assets sold or leased, or cash or cash equivalents disposed of, in each case, in the ordinary course of business. For purposes of clarification, “Asset Sale” shall (i) include (x) the sale or other disposition for value of any contracts or (y) the early termination or modification of any contract resulting in the receipt by any Credit Party of a cash payment or other consideration in exchange for such event (other than payments in the ordinary course of business for accrued and unpaid amounts due through the date of termination or modification) and (ii) exclude any taking or other disposition by means of power of eminent domain, condemnation or similar power, threat or rightcompliance.
Appears in 1 contract
Sources: Indenture (Handy & Harman Ltd.)
Asset Sales. No later than (a) The Company will not, and will not permit any of its Restricted Subsidiaries to, consummate an Asset Sale unless:
(1) the first business day following Company (or the Restricted Subsidiary, as the case may be) receives consideration at the time of the Asset Sale at least equal to the Fair Market Value (measured as of the date of receiptthe definitive agreement with respect to such Asset Sale) of the assets or Equity Interests issued or sold or otherwise disposed of; and
(2) at least 75% of the consideration received in the Asset Sale by the Company or such Restricted Subsidiary is in the form of cash or Cash Equivalents; provided that for purposes of this provision, each of the following shall be deemed to be cash:
(A) any liabilities, as shown on the Company’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 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;
(B) any securities, notes or other obligations received by the Company or any such Restricted Subsidiary from such transferee that are not Cash Equivalents but are contemporaneously, subject to ordinary settlement periods, converted by the Company or such Restricted Subsidiary into cash or Cash Equivalents, to the extent of the cash or Cash Equivalents received in that conversion;
(C) any given month, Designated Noncash Consideration received by Borrower the Company or any of its Restricted Subsidiaries in an Asset Sale having an aggregate Fair Market Value (as determined in good faith by the Board of Directors of the Company at the time received without giving effect to subsequent changes in value), taken together with all other Designated Noncash Consideration received pursuant to this clause (C) that is at that time outstanding, not to exceed 5.0% of the Company’s Total Assets; and
(D) any stock or assets of the kind referred to in clauses (3), (4) or (5) of Section 4.10(b) below.
(b) Within 360 days after the receipt of any Net Proceeds received from an Asset Sale, the Company (or the applicable Restricted Subsidiary, as the case may be) may apply such Net Proceeds:
(1) to repay, repurchase or redeem Priority Lien Obligations;
(2) to repay Indebtedness of a Restricted Subsidiary of the Company that is not a Guarantor, other than Indebtedness owed to the Company or another Restricted Subsidiary and, if the Indebtedness repaid is revolving credit Indebtedness, to correspondingly reduce commitments with respect thereto;
(3) to acquire all or substantially all of the assets of, or any Capital Stock of, another Permitted Business, if, after giving effect to any such acquisition of Capital Stock, the Permitted Business is or becomes a Restricted Subsidiary of the Company;
(4) to make a capital expenditure;
(5) to acquire other assets that are not classified as current assets under GAAP and that are used or useful in a Permitted Business; or
(6) any combination of the foregoing; provided that the Company will be deemed to have complied with clauses (3), (4) and/or (5) of this Section 4.10(b) if and to the extent that, within 360 days after the Asset Sale that generated the Net Proceeds, the Company has entered into and not abandoned or rejected a binding agreement to acquire the assets or Capital Stock of a Permitted Business, make a capital expenditure and/or acquire other assets in compliance with clauses (3), (4) and/or (5) of this Section 4.10(b), and that acquisition or capital expenditure is thereafter completed within 90 days after the end of such 360-day period.
(c) Pending the final application of any Net Proceeds from an Asset Sale, the Company (or the applicable Restricted Subsidiary) may temporarily reduce revolving credit borrowings or otherwise invest Net Proceeds from an Asset Sale in any manner that is not prohibited by this Indenture. Any Net Proceeds from an Asset Sale that are not applied or invested as hereinafter definedprovided in Section 4.10(b) in excess of hereof will constitute “Excess Proceeds.” When the aggregate amount of Budgeted Expenses (as defined in Section 15(e) hereof) as set forth in the most recent Budget (as defined in Section 15(e)) required to be delivered pursuant to Section 15(e) hereof, Borrower shall prepay the Forbearance Period Advances as set forth in Section 3(i) hereof in an aggregate amount equal to such excess amount; provided, that (A) such Net Asset Sale Excess Proceeds shall be deposited directly by the payee thereof into a deposit account held by Borrower at Amegy Bank, N.A. and (B) ifexceeds $25.0 million, within 30 days of Borrower’s receipt of such Net thereof, the Company will make an offer (an “Asset Sale Offer”) to all Holders of Notes and all holders of other Shared Lien Debt containing provisions similar to those set forth in this Indenture with respect to offers to purchase, prepay or redeem with the proceeds of sales of assets in accordance with Section 3.09 hereof to purchase, prepay or redeem the maximum principal amount of Notes and such other Shared Lien Debt (plus all accrued interest on such Indebtedness and the amount of all fees and expenses, including premiums, incurred in connection therewith) that may be purchased, prepaid or redeemed out of the Excess Proceeds, Borrower has not paid one or more such Budgeted Expenses . The offer price for the Notes and any other Shared Lien Debt in an aggregate amount any Asset Sale Offer will be equal to 100% of the principal amount of the Notes and such proceeds other Shared Lien Debt purchased, plus accrued and unpaid interest, if any, on the Notes and any other Shared Lien Debt, to the date of purchase, prepayment or redemption, subject to the rights of Holders of Notes on the relevant record date to receive interest due on the relevant interest payment date, and will be payable in cash. If any Excess Proceeds remain after consummation of an Asset Sale Offer, the Company may use those Excess Proceeds for any purpose not otherwise prohibited by this Indenture. If the aggregate principal amount of Notes and such other Shared Lien Debt tendered in (or required to prepay be prepaid or redeemed in connection with) such Asset Sale Offer exceeds the Forbearance Period Advancesamount of Excess Proceeds, then Borrower shall prepay the Forbearance Period Advances Company will select the Notes and such other Shared Lien Debt to be purchased on a pro rata basis, based on the principal amount of Notes and such other Shared Lien Debt tendered or required to be prepaid or redeemed (with such adjustments as set forth may be deemed appropriate by the Company so that only Notes in Section 3(idenominations of $2,000, or an integral multiple of $1,000 in excess of $2,000, will be left outstanding). Upon completion of each Asset Sale Offer, the amount of Excess Proceeds will be reset at zero.
(d) hereof in an amount equal The Company will comply with the requirements of Rule 14e-1 under the Exchange Act and any other securities laws and regulations thereunder to the amount not so paid. “Net Asset Sale Proceeds” means, with respect to any Asset Sale (as hereinafter defined), an amount equal to: (1) cash payments received by Borrower or any of its Subsidiaries from such Asset Sale, minus (2) any bona fide direct costs extent those laws and expenses incurred regulations are applicable in connection with such each repurchase of Notes pursuant to an Asset Sale to Offer. To the extent paid or payable to non-Affiliates, including (x) income or gains taxes payable or reasonably estimated to be payable by that the seller as a result provisions of any gain recognized in connection securities laws or regulations conflict with such Asset Sale during the tax period provisions of Section 3.09 hereof or this Section 4.10, the sale occursCompany will comply with the applicable securities laws and regulations and will not be deemed to have breached its obligations under Section 3.09 hereof or this Section 4.10, (y) payment of the obligations (other than the Loans) secured by a Lien on the assets in question, which is required to be repaid under the terms thereof as a result virtue of such Asset Sale, and (z) a reasonable reserve for any adjustments in respect to sale price of such assets and any indemnification payments (fixed or contingent) attributable to seller’s indemnities and representations and warranties to purchaser in respect of such Asset Sale undertaken by Borrower or any of its Subsidiaries in connection with such Asset Sale; provided that upon release of any such reserve, the amount released shall be considered Net Asset Sale Proceeds). “Asset Sale” means a sale, lease or sublease (as lessor or sublessor), sale and leaseback, assignment, conveyance, transfer, license or other disposition to, or any exchange of property with, any Person (other than to or with a Credit Party), in one transaction or a series of transactions, of all or any part of any Credit Party’s businesses, assets or properties of any kind, whether real, personal, or mixed and whether tangible or intangible, whether now owned or hereafter acquired, leased or licensed, including, without limitation, the capital stock of any Credit Party, other than inventory or other assets sold or leased, or cash or cash equivalents disposed of, in each case, in the ordinary course of business. For purposes of clarification, “Asset Sale” shall (i) include (x) the sale or other disposition for value of any contracts or (y) the early termination or modification of any contract resulting in the receipt by any Credit Party of a cash payment or other consideration in exchange for such event (other than payments in the ordinary course of business for accrued and unpaid amounts due through the date of termination or modification) and (ii) exclude any taking or other disposition by means of power of eminent domain, condemnation or similar power, threat or rightcompliance.
Appears in 1 contract
Sources: Indenture (Viasystems Inc)
Asset Sales. No later than the first business day following the date of receiptThe Company shall not, in any given month, by Borrower or and shall not permit any of its Restricted Subsidiaries to, consummate an Asset Sale unless (i) the Company (or such Restricted Subsidiary, as the case may be) receives consideration at the time of such Asset Sale (if other than a Casualty Event) at least equal to the Fair Market Value (taking into account the value of all consideration received in connection therewith and set forth in an Officers' Certificate delivered to the Trustee) of the Property or Equity Interests that are the subject of such Asset Sale, (ii) at least 80% of the consideration therefor (if other than a Casualty Event) is in the form of Qualified Cash Equivalents, (iii) the Net Cash Proceeds received by the Company (or such Restricted Subsidiary, as the case may be) from such Asset Sale shall be remitted, subject to any Net Intercreditor Agreement, to the Trustee for deposit into the Asset Sale Proceeds Account free of any Lien (other than the Liens of the Security Documents and any Working Capital Facility), and (iv) the Company (or such Restricted Subsidiary, as hereinafter definedthe case may be) shall take such action as shall be necessary under 6.03 hereof in order to maintain the Lien of the Trustee on any other consideration received in such Asset Sale. The Net Cash Proceeds from such Asset Sale shall be retained in the Asset Sale Proceeds Account and shall be available pursuant to Sections 9.03 and 9.04 hereof (x) in excess the case of Net Cash Proceeds of a Casualty Event, to be applied to the repair, rebuilding or replacement of the Property subject to such Casualty Event and (y) in the case of any other Net Cash Proceeds of such Asset Sale, to the reinvestment into Property that is used or useful in a Permitted Business, provided that to the extent all of the Net Cash Proceeds have not been so applied to such repair, rebuilding, replacement or reinvestment within 365 days following the receipt of such Net Cash Proceeds (or within such shorter period as shall be specified by the Company), such remaining Net Cash Proceeds shall be applied to the making of an Asset Sale Offer as provided in the next-following paragraph. The aggregate amount of the Net Cash Proceeds remaining at the end of such period after the application of such Net Cash Indenture Proceeds to the repair, rebuilding, replacement or reinvestment referred to therein, shall constitute "Excess Proceeds." When the aggregate amount of Budgeted Expenses (as defined in Section 15(e) hereof) as set forth in Excess Proceeds equals or exceeds $10,000,000, the most recent Budget (as defined in Section 15(e)) Issuer will be required to make an offer to all Holders (an "Asset Sale Offer") to purchase the maximum principal amount of Notes that may be delivered pursuant to Section 15(e) hereofpurchased out of the Excess Proceeds, Borrower shall prepay the Forbearance Period Advances as set forth at a purchase price in Section 3(i) hereof cash in an aggregate amount equal to such excess amount; provided, that (A) such Net Asset Sale Proceeds shall be deposited directly by the payee thereof into a deposit account held by Borrower at Amegy Bank, N.A. and (B) if, within 30 days of Borrower’s receipt of such Net Asset Sale Proceeds, Borrower has not paid one or more such Budgeted Expenses in an aggregate amount equal to 100% of the principal amount thereof, plus accrued and unpaid interest thereon, if any, to the date of such proceeds not otherwise required to prepay purchase, in accordance with the Forbearance Period Advances, then Borrower shall prepay the Forbearance Period Advances as procedures set forth in Section 3(i) hereof in Article III hereof. To the extent that any Excess Proceeds remain after consummation of an amount equal to the amount not so paid. “Net Asset Sale Proceeds” meansOffer, with respect to the Issuer may use such Excess Proceeds for any Asset Sale (as hereinafter defined), an purpose not otherwise prohibited by this Indenture. If the aggregate principal amount equal to: (1) cash payments received by Borrower or any of its Subsidiaries from such Asset Sale, minus (2) any bona fide direct costs and expenses incurred Notes tendered in connection with such Asset Sale to Offer exceeds the extent paid or payable to non-Affiliatesamount of Excess Proceeds, including (x) income or gains taxes payable or reasonably estimated the Trustee shall select the Notes to be payable by the seller as purchased on a result of any gain recognized in connection with such Asset Sale during the tax period the sale occurs, (y) payment of the obligations (other than the Loans) secured by a Lien on the assets in question, which is required to be repaid under the terms thereof as a result of such Asset Sale, and (z) a reasonable reserve for any adjustments in respect to sale price of such assets and any indemnification payments (fixed or contingent) attributable to seller’s indemnities and representations and warranties to purchaser in respect pro rata basis. Upon completion of such Asset Sale undertaken by Borrower or any of its Subsidiaries in connection with such Asset Sale; provided that upon release of any such reserveOffer, the amount released of Excess Proceeds shall be considered Net Asset Sale Proceeds). “Asset Sale” means a sale, lease or sublease (as lessor or sublessor), sale and leaseback, assignment, conveyance, transfer, license or other disposition to, or any exchange of property with, any Person (other than to or with a Credit Party), in one transaction or a series of transactions, of all or any part of any Credit Party’s businesses, assets or properties of any kind, whether real, personal, or mixed and whether tangible or intangible, whether now owned or hereafter acquired, leased or licensed, including, without limitation, the capital stock of any Credit Party, other than inventory or other assets sold or leased, or cash or cash equivalents disposed of, in each case, in the ordinary course of business. For reset at zero for purposes of clarification, “Asset Sale” shall (i) include (x) the sale or other disposition for value first sentence of any contracts or (y) the early termination or modification of any contract resulting in the receipt by any Credit Party of a cash payment or other consideration in exchange for such event (other than payments in the ordinary course of business for accrued and unpaid amounts due through the date of termination or modification) and (ii) exclude any taking or other disposition by means of power of eminent domain, condemnation or similar power, threat or rightthis paragraph.
Appears in 1 contract
Sources: Indenture (Global Crossing LTD)
Asset Sales. No later (a) The Company shall not, and shall not permit any of its Restricted Subsidiaries to, consummate an Asset Sale unless:
(i) 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;
(ii) in the case of Asset Sales involving consideration in excess of $10.0 million, the fair market value is determined in good faith by the Company’s Board of Directors; and
(iii) except for any Permitted Asset Swap, at least 75% of the consideration received in the Asset Sale by the Company or such Restricted Subsidiary is in the form of cash or Cash Equivalents. For purposes of clause (iii) above, the amount of (1) any liabilities (as shown on the Company’s or the applicable Restricted Subsidiary’s most recent balance sheet or in the notes thereto) of the Company or any Restricted Subsidiary (other than liabilities that are by their terms subordinated to the first business day Notes or the related Guarantees) that are assumed by the transferee of any such assets and from which the Company and all Restricted Subsidiaries have been validly released by all creditors in writing, (2) any securities received by the Company or such Restricted Subsidiary from such transferee that are converted by the Company or such Restricted Subsidiary into cash (to the extent of the cash received) within 180 days following the date closing of receipt, in such Asset Sale and (3) any given month, Designated Noncash Consideration received by Borrower the 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 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 (x) $75.0 million and (y) 2.5% of Consolidated Total Assets of the Company as of the end of the Company’s most recently ended fiscal quarter prior to the date on which such Designated Noncash Consideration is received (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.
(b) Within 365 days after the receipt of any Net Proceeds from an Asset Sale, the Company (or, if applicable, the Restricted Subsidiary) may apply those Net Proceeds at its option:
(i) to permanently reduce Obligations under Senior Debt of the Company or any Guarantor Senior Debt (and to correspondingly reduce commitments with respect thereto) or Indebtedness of the Company that ranks pari passu with the Notes or Indebtedness of a Guarantor that ranks pari passu with such Guarantor’s Guarantee of the Notes provided, that if the Company shall so reduce Obligations under Indebtedness that ranks pari passu with the Notes or a related Guarantee, 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 Proceeds (as hereinafter defined) in excess of the aggregate amount of Budgeted Expenses Offer (as defined in Section 15(e4.10(d) hereof) as set forth in the most recent Budget (as defined in Section 15(ebelow)) required to be delivered pursuant all Holders to Section 15(e) hereof, Borrower shall prepay the Forbearance Period Advances as set forth in Section 3(i) hereof in an aggregate amount equal to such excess amount; provided, that (A) such Net Asset Sale Proceeds shall be deposited directly by the payee thereof into purchase at a deposit account held by Borrower at Amegy Bank, N.A. and (B) if, within 30 days of Borrower’s receipt of such Net Asset Sale Proceeds, Borrower has not paid one or more such Budgeted Expenses in an aggregate amount purchase price equal to 100% of the principal amount thereof, plus accrued and unpaid interest and Additional Interest, if any, on the pro rata principal amount of such proceeds the Notes or Indebtedness of a Restricted Subsidiary that is not otherwise required to prepay a Guarantor;
(ii) in the Forbearance Period Advances, then Borrower shall prepay the Forbearance Period Advances as set forth in Section 3(i) hereof in an amount equal to the amount not so paid. “Net Asset Sale Proceeds” means, with respect to any Asset Sale (as hereinafter defined), an amount equal to: (1) cash payments received by Borrower or any case of its Subsidiaries from such a Designated Asset Sale, minus as provided for in the definition of Designated Asset Sales; or
(2iii) to (A) make an investment in any one or more businesses; provided, that such investment in any business is in the form of the acquisition of Capital Stock and results in the Company or a Restricted Subsidiary owning an amount of the Capital Stock of such business such that such business constitutes a Restricted Subsidiary, (B) make capital expenditures or (C) make an investment in other assets, in each of (A), (B) and (C), used or useful in a Permitted Business; and/or
(iv) to make an investment in (A) any bona fide direct costs one or more businesses; provided, that such investment in any business is in the form of the acquisition of Capital Stock and expenses incurred it results in connection with the Company or a Restricted Subsidiary owning an amount of the Capital Stock of such Asset Sale to the extent paid or payable to non-Affiliates, including (x) income or gains taxes payable or reasonably estimated to be payable by the seller as business such that such business constitutes a result of any gain recognized in connection with such Asset Sale during the tax period the sale occursRestricted Subsidiary, (yB) payment properties or (C) assets that, in each of (A), (B) and (C), replace the obligations (other than businesses, properties and assets that are the Loans) secured by a Lien on the assets in question, which is required to be repaid under the terms thereof as a result subject of such Asset Sale.
(c) Any Net Proceeds from an Asset Sale not applied or invested in accordance with Section 4.10(b) within 365 days from the date of the receipt of such Net Proceeds shall constitute “Excess Proceeds,” provided, that if during such 365-day period the Company or a Restricted Subsidiary enters into a definitive binding agreement committing it to apply such Net Proceeds in accordance with the requirements of Section 4.10(b)(i), (ii) or (iii) after such 365th day, such 365-day period will be extended with respect to the amount of Net Proceeds so committed for a period not to exceed 180 days until such Net Proceeds are required to be applied in accordance with such agreement (or, if earlier, until termination of such agreement).
(d) When the aggregate amount of Excess Proceeds exceeds $20.0 million, the Company, or the applicable Restricted Subsidiary, will make an offer (an “Asset Sale Offer”) to all Holders and Indebtedness that ranks pari passu with such Notes and contains provisions similar to those set forth in this Indenture with respect to offers to purchase with the proceeds of sales of 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 principal amount thereof, plus accrued and unpaid interest and Additional Interest, if any, to the date of purchase, and will be payable in cash.
(ze) a reasonable reserve Pending the final application of any Net Proceeds, the Company, or the applicable Restricted Subsidiary (including the Company), may temporarily reduce revolving credit borrowings or otherwise invest the Net Proceeds in any manner that is not prohibited by this Indenture.
(f) If any Excess Proceeds remain after consummation of an Asset Sale Offer, the Company, or the applicable Restricted Subsidiary (including the Company), may use those Excess Proceeds for any adjustments in respect to sale price purpose not otherwise prohibited by this Indenture. If the aggregate principal amount of such assets and any indemnification payments (fixed or contingent) attributable to seller’s indemnities and representations and warranties to purchaser in respect of Notes tendered into such Asset Sale undertaken by Borrower Offer exceeds the amount of Excess Proceeds, the Trustee will select the Notes to be purchased on a pro rata basis. Upon completion of each Asset Sale Offer, the amount of Excess Proceeds will be reset at zero.
(g) The Company, or the applicable Restricted Subsidiary, shall comply with the requirements of Rule 14e-1 under the Exchange Act and any of its Subsidiaries other securities laws and regulations thereunder to the extent those laws and regulations are applicable in connection with such each repurchase of Notes pursuant to an Asset Sale; provided Sale Offer. To the extent that upon release the provisions of any such reservesecurities laws or regulations conflict with the Asset Sale provisions of this Indenture, the amount released shall be considered Net Asset Sale Proceeds). “Asset Sale” means a sale, lease or sublease (as lessor or sublessor), sale and leaseback, assignment, conveyance, transfer, license or other disposition toCompany, or any exchange the applicable Restricted Subsidiary, will comply with the applicable securities laws and regulations and will not be deemed to have breached its obligations under Section 4.10 of property with, any Person (other than to or with a Credit Party), in one transaction or a series this Indenture by virtue of transactions, of all or any part of any Credit Party’s businesses, assets or properties of any kind, whether real, personal, or mixed and whether tangible or intangible, whether now owned or hereafter acquired, leased or licensed, including, without limitation, the capital stock of any Credit Party, other than inventory or other assets sold or leased, or cash or cash equivalents disposed of, in each case, in the ordinary course of business. For purposes of clarification, “Asset Sale” shall (i) include (x) the sale or other disposition for value of any contracts or (y) the early termination or modification of any contract resulting in the receipt by any Credit Party of a cash payment or other consideration in exchange for such event (other than payments in the ordinary course of business for accrued and unpaid amounts due through the date of termination or modification) and (ii) exclude any taking or other disposition by means of power of eminent domain, condemnation or similar power, threat or rightconflict.
Appears in 1 contract
Asset Sales. No later than The Company may not, and may not permit any of its Restricted Subsidiaries to, directly or indirectly, make any Asset Sale unless the first business day following Company (or such Restricted Subsidiary, as the case may be) receives consideration at the time of such Asset Sale at least equal to the fair market value of the assets sold or otherwise disposed of. Within 12 months after any Asset Sale, the Company or the Restricted Subsidiary, as the case may be, may at its option (a) reinvest an amount equal to the Net Cash Proceeds (or any portion thereof) from such disposition in Replacement Assets and/or (b) apply an amount equal to the Net Cash Proceeds (or any remaining portion thereof) to the permanent reduction of pari passu Debt of the Company. For purposes of clause (a) above, if the Company or the Restricted Subsidiary, as the case may be, within such 12-month period, enters into a binding contract for the construction of a Stopping Center, the Company or such Restricted Subsidiary shall be deemed to have reinvested an amount equal to the construction cost of such Stopping Center in Replacement Assets (without regard to the timing of actual payment therefor) until the earlier of (I) the date of receiptactual completion and (II) the scheduled completion date provided in such construction contract, as adjusted to give effect to delays not exceeding in the aggregate 100% of the number of days between the date of the construction contract and such scheduled completion date, at which time the actual reinvestment in Replacement Assets will be determined. Any Net Cash Proceeds from any given month, by Borrower or any of its Subsidiaries of any Net Asset Sale Proceeds (as hereinafter defined) that are not used to reinvest in excess Replacement Assets and/or repay pari passu Debt of the Company constitute "Excess Proceeds." When the aggregate amount of Budgeted Expenses (as defined in Section 15(e) hereof) as set forth in Excess Proceeds exceeds $10,000,000, the most recent Budget (as defined in Section 15(e)) required Issuers shall make an offer to be delivered pursuant to Section 15(e) hereofPurchase on a pro rata basis, Borrower shall prepay the Forbearance Period Advances as set forth in Section 3(i) hereof from all Holders, Securities in an aggregate principal amount equal to such excess amount; provided, that (A) such Net Asset Sale Proceeds shall be deposited directly by the payee thereof into a deposit account held by Borrower at Amegy Bank, N.A. and (B) if, within 30 days of Borrower’s receipt of such Net Asset Sale Excess Proceeds, Borrower has not paid one or more such Budgeted Expenses at a Purchase Price in an aggregate amount cash equal to 100% of the principal amount thereof, together with accrued interest, if any, on such principal amount to the Purchase Date. To the extent that any amount of Excess Proceeds remains after completion of such proceeds not offer to Purchase, the Company may use such remaining amount for general corporate purposes, and the amount of Excess Proceeds shall be reset to zero.
Section 2.01. Except as specifically modified herein, the Indenture and the Securities are in all respects ratified and confirmed and shall remain in full force and effect in accordance with their terms.
Section 2.02. Except as otherwise required expressly provided herein, no duties, responsibilities or liabilities are assumed, or shall be construed to prepay be assumed, by the Forbearance Period Advances, then Borrower shall prepay Trustee by reason of this Supplemental Indenture. This Supplemental Indenture is executed and accepted by the Forbearance Period Advances as Trustee subject to all the terms and conditions set forth in Section 3(i) hereof in an amount equal the Indenture with the same force and effect as if those terms and conditions were repeated at length herein and made applicable to the amount not so paid. “Net Asset Sale Proceeds” means, Trustee with respect hereto.
Section 2.03. The laws of the State of New York shall govern this Supplemental Indenture without regard to principles of conflicts of law. The Trustee and the Issuers hereby irrevocably submit to the jurisdiction of any Asset Sale (as hereinafter defined), an amount equal to: (1) cash payments received by Borrower New York state court sitting in the Borough of Manhattan in the City of New York or any federal court sitting in the Borough of its Subsidiaries from such Asset Sale, minus (2) any bona fide direct costs and expenses incurred Manhattan in connection with such Asset Sale to the extent paid or payable to non-Affiliates, including (x) income or gains taxes payable or reasonably estimated to be payable by the seller as a result The City of any gain recognized in connection with such Asset Sale during the tax period the sale occurs, (y) payment of the obligations (other than the Loans) secured by a Lien on the assets in question, which is required to be repaid under the terms thereof as a result of such Asset Sale, and (z) a reasonable reserve for any adjustments in respect to sale price of such assets and any indemnification payments (fixed or contingent) attributable to seller’s indemnities and representations and warranties to purchaser New York in respect of such Asset Sale undertaken by Borrower any suit, action or proceeding arising out of or relating to this Supplemental Indenture, and irrevocably accept for themselves and in respect of their Property, generally and unconditionally, jurisdiction of the aforesaid courts.
Section 2.04. The parties may sign any number of its Subsidiaries in connection with such Asset Sale; provided that upon release copies of any such reserve, the amount released this Supplemental Indenture. Each signed copy shall be considered Net Asset Sale Proceeds)an original, but all of such executed copies together shall represent the same agreement. “Asset Sale” means a sale, lease or sublease (as lessor or sublessor), sale and leaseback, assignment, conveyance, transfer, license or other disposition to, or any exchange of property with, any Person (other than to or with a Credit Party), in one transaction or a series of transactions, of all or any part of any Credit Party’s businesses, assets or properties of any kind, whether real, personal, or mixed and whether tangible or intangible, whether now owned or hereafter acquired, leased or licensed, including, without limitation, the capital stock of any Credit Party, other than inventory or other assets sold or leased, or cash or cash equivalents disposed of, in each case, in the ordinary course of business. For purposes of clarification, “Asset Sale” shall (i) include (x) the sale or other disposition for value of any contracts or (y) the early termination or modification of any contract resulting in the receipt by any Credit Party of a cash payment or other consideration in exchange for such event (other than payments in the ordinary course of business for accrued and unpaid amounts due through the date of termination or modification) and (ii) exclude any taking or other disposition by means of power of eminent domain, condemnation or similar power, threat or right.SIGNATURES ----------
Appears in 1 contract
Sources: Supplemental Indenture (Petro Holdings Financial Corp)
Asset Sales. No later than the first business day following the date of receipt, in any given month, by Borrower or any of its Subsidiaries of any Net Asset Sale Proceeds (as hereinafter defined) in excess of the aggregate amount of Budgeted Expenses (as defined in Section 15(e) hereof) as set forth in the most recent Budget (as defined in Section 15(e)) required to be delivered pursuant to Section 15(e) hereof, Borrower shall prepay the Forbearance Period Advances as set forth in Section 3(i) hereof in an aggregate amount equal to such excess amount; provided, that (A) such Net Asset Sale Proceeds shall be deposited directly by the payee thereof into a deposit account held by Borrower at Amegy Bank, N.A. and (B) if, within 30 days of Borrower’s receipt of such Net Asset Sale Proceeds, Borrower has not paid one or more such Budgeted Expenses in an aggregate amount equal to 100% of the amount of such proceeds not otherwise required to prepay the Forbearance Period Advances, then Borrower shall prepay the Forbearance Period Advances as set forth in Section 3(i) hereof in an amount equal to the amount not so paid. “Net Asset Sale Proceeds” means, with respect to Effect any Asset Sale (as hereinafter defined), an amount equal to: (1) cash payments received by Borrower or any of its Subsidiaries from such Asset Sale, minus (2) any bona fide direct costs and expenses incurred in connection with such Asset Sale to except that the extent paid or payable to non-Affiliates, including (x) income or gains taxes payable or reasonably estimated to be payable by the seller as a result of any gain recognized in connection with such Asset Sale during the tax period the sale occurs, (y) payment of the obligations (other than the Loans) secured by a Lien on the assets in question, which is required to be repaid under the terms thereof as a result of such Asset Sale, and (z) a reasonable reserve for any adjustments in respect to sale price of such assets and any indemnification payments (fixed or contingent) attributable to seller’s indemnities and representations and warranties to purchaser in respect of such Asset Sale undertaken by Borrower or any of its Subsidiaries in connection with such Asset Sale; provided that upon release of any such reserve, the amount released following shall be considered Net Asset Sale Proceeds). “Asset Sale” means a salepermitted:
(a) disposition of used, lease worn out, obsolete or sublease (as lessor or sublessor), sale and leaseback, assignment, conveyance, transfer, license or other disposition to, or any exchange of surplus property with, any Person (other than to or with a Credit Party), in one transaction or a series of transactions, of all or any part of any Credit Party’s businesses, assets or properties of any kind, whether real, personal, or mixed and whether tangible or intangible, whether now owned or hereafter acquired, leased or licensed, including, without limitation, the capital stock of any Credit Party, other than inventory or other assets sold or leased, or cash or cash equivalents disposed of, in each case, in the ordinary course of business. For purposes of clarification, “Asset Sale” shall (i) include (x) the sale or other disposition for value of any contracts or (y) the early termination or modification of any contract resulting in the receipt by any Credit Party of a cash payment or other consideration in exchange for such event (other than payments Company in the 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 1160381.015-CHISR02A - MSW 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, Aleris German Non-Wholly Owned Subsidiary, or Wholly Owned Subsidiary, in each case that is a Restricted Subsidiary, unless, after giving effect to any such Asset Sale, such person either ceases to be a Restricted Subsidiary or, in the case of an Excluded Collateral Subsidiary, becomes a Joint Venture Subsidiary) for accrued fair market value, with at least 75% of the consideration received for all such Asset Sales or related Asset Sales in which the consideration received exceeds $50,000,000 payable in cash upon such sale (provided, however, that for the purposes of this clause (b), the following shall be deemed to be cash: (i) any liabilities (as shown on the Designated Company’s most recent balance sheet provided hereunder or in the footnotes thereto) of the Designated Company or such Restricted Subsidiary, other than liabilities that are by their terms subordinated to the payment in cash of the Obligations, that are assumed by the transferee with respect to the applicable Asset Sale and unpaid for which Holdings, the Designated Company and all of its Restricted Subsidiaries (and, on and after the Specified AV Minerals Joinder Date, AV Minerals) shall have been validly released by all applicable creditors in writing, (ii) any securities received by the Designated Company or the applicable Restricted Subsidiary from such transferee that are converted by the Designated Company or such Restricted Subsidiary into 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 by 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 Company 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;
(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 Section 6.01(m), plus (y) the aggregate book value at the time of determination of the then 1160381.015-CHISR02A - MSW 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 due through 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 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 Loan Party to any Restricted Subsidiary that is not a 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 Closing Date, (v) by any Company that is not a Loan Party to any Loan Party so long as the consideration paid by the 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 Loan Parties; provided that (A) in the case of any transfer from one Loan Party to another Loan Party, any security interests granted to the Collateral Agent for the benefit of the Secured Parties pursuant to the relevant Security 1160381.015-CHISR02A - MSW Documents in the assets so transferred shall (1) remain in full force and effect and perfected and enforceable (to at least the same extent as in effect immediately prior to such transfer) or (2) be replaced by security interests granted to the Collateral Agent for the benefit of the relevant Secured Parties pursuant to the relevant Security Documents, which new security interests shall be in full force and effect and perfected and enforceable (to at least the same extent as in effect immediately prior to such transfer) and (B) no Default is then continuing or would result therefrom; provided, further, that (I) any Asset Sale of Equity Interests of a Subsidiary of the Designated Company permitted under this clause (h) (such Subsidiary, the “Transferred Company”) from an Unrestricted Grantor to a Restricted Grantor shall be conditioned on (1) the satisfaction of the Transfer Conditions as of the date of termination such transaction and (2) either the creation or modificationexistence of an Interim Holding Company, in each case that (X) is a direct Wholly Owned Subsidiary of such Restricted Grantor and that directly owns 100% of the Equity Interests of such Transferred Company after giving effect to such Asset Sale; provided, that if such Transferred Company is an Aleris German Non-Wholly Owned Subsidiary, the Tulip Foundation may continue to directly or indirectly own Equity Interests in such Aleris German Non-Wholly Owned Subsidiary so long as the Tulip Conditions are satisfied at all times and any other Aleris German Non-Wholly Owned Subsidiary that owns such Transferred Company prior to the occurrence of such transfer may continue to own Equity Interests in such Transferred Company, (Y) has complied with the Joinder Requirements and (Z) shall not be permitted to own, on and after the date of such action, any assets other than the Permitted Holding Company Assets (II) solely with respect to the pledge of Equity Interests in or by any Interim Holding Company in connection with a transaction permitted under this clause (h) that complies with the requirements of clauses (I)(X) through (I)(Z) above, and so long as the Transfer Conditions are satisfied as of the date of such transaction, the re-starting of any fraudulent conveyance, fraudulent transfer, preference or hardening period with respect to any Security Document or Lien under any Requirement of Law shall not, in itself, constitute a violation of clause (A)(1) or clause (A)(2) of the second proviso to this clause (h), and (III) so long as the Transfer Conditions are satisfied as of the date of such transaction, any guaranty or pledge limitations under the laws of the jurisdiction of organization of (X) an Interim Holding Company with respect to the enforcement of the pledge of Equity Interests directly held by the Loan Party that owns the Equity Interests of such Interim Holding Company, or (Y) any Restricted Grantor that acquires assets pursuant to this clause (h) with respect to the enforcement of the pledge of such assets acquired by such Restricted Grantor, in the case of clauses (III)(X) and (III)(Y), shall not, in itself, constitute a violation of clause (A)(1) or clause (A)(2) of the second proviso to this clause (h);
(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), (y) the Collateral Agent shall have a First Priority perfected Lien on the assets acquired pursuant to such Asset Swap at least to the same extent as the assets sold pursuant to such Asset Swap (immediately prior to giving effect thereto) and (z) the aggregate fair market 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 Closing Date; provided that so long as the assets acquired by any 1160381.015-CHISR02A - MSW 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 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 extent constituting an Asset Sale, the Permitted Holdings Amalgamation;
(l) issuances of Equity Interests by Joint Venture Subsidiaries and Excluded Collateral Subsidiaries;
(m) Asset 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;
(n) the sale of Receivables made pursuant to the Receivables Purchase Agreement;
(o) to 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 Loan Parties in any class of the Equity Interests of such issuing Company and (B) by Subsidiaries of the Designated Company formed after the Closing Date to the Designated Company or the Subsidiary of the Designated Company which is to own such Qualified Capital Stock. All Equity Interests issued in accordance with this Section 6.06(p) shall, to the extent required by Section 5.11 or any Security Document or if such Equity Interests are issued by any Loan Party (other than (x) prior to the Specified AV Minerals Joinder Date, Holdings or (y) on and after the Specified AV Minerals Joinder Date, AV Minerals), be delivered to the Collateral Agent;
(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 (i) any security interests granted to the Collateral Agent for the benefit of any Secured Parties pursuant to the relevant Security Documents in the Equity Interests so transferred shall be replaced by security interests granted to the Collateral Agent for the benefit of the relevant Secured Parties pursuant to the relevant Security Documents in 100% of the Equity Interests of such U.S. Loan Party and 65% of the Equity Interests of such Chinese Subsidiary if held directly by such U.S. Loan Party, which new security interests shall be in full force and effect and perfected and enforceable (to at least the same extent as the security interests in such transferred Subsidiary in effect immediately prior to such transfer (it being understood that registration of such pledge may take place following such transfer to the extent required by applicable law)) and (ii) exclude no Default is then continuing or would result therefrom; 1160381.015-CHISR02A - MSW (r) sales, transfers and other dispositions 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 taking or other such sale, transfer of disposition by means 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 power Receivables incurred by a Company that is organized in a Non-Principal Jurisdiction, the sum of eminent domain(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 this Section 6.01(e), condemnation or similar powerplus (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), threat or right.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 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 this Sectio
Appears in 1 contract
Sources: Credit Agreement (Novelis Inc.)
Asset Sales. No later than The Company shall not, and shall not permit any of its Restricted Subsidiaries to, engage in an Asset Sale unless (i) the first business day following Company (or the Restricted Subsidiary, as the case may be) receives consideration at the time of such Asset Sale at least equal to the fair market value (as determined by a resolution of the Board of Directors set forth in an Officers' Certificate delivered to the Trustee, 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 (ii) at least 85% of the consideration therefor received by the Company or such Restricted Subsidiary in such Asset Sale plus all other Asset Sales, since the date of receiptthe Indenture, on a cumulative basis, is in the form of cash or Cash Equivalents; provided that the amount of (x) any given monthliabilities (as shown on the Company's or such Restricted Subsidiary's most recent balance sheet), by Borrower of the Company or any Restricted Subsidiary (other than contingent liabilities and liabilities that are by their terms subordinated to the Notes or any guarantee thereof) that are assumed by the transferee of its Subsidiaries any such assets pursuant to a customary novation agreement that releases the Company or such Restricted Subsidiary from further liability and (y) any Liquid Securities 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 of closing such Asset Sale, shall be deemed to be cash for purposes of this provision (to the extent of the cash received). Within 365 days after the receipt of any Net Proceeds from an Asset Sale Sale, the Company may apply such Net Proceeds, at its option, (a) to reduce indebtedness under the Senior Credit Facility or to the permanent reduction of other Senior Debt, (b) to acquire a controlling interest in another Oil and Gas Business, to make capital expenditures in respect of the Company's or any Restricted Subsidiaries' Oil and Gas Business, or to purchase long-term assets that are used or useful in the Company's or any Restricted Subsidiary's Oil and Gas Business or (c) repurchase any Notes or Pari Passu Indebtedness, on a pro rata basis. Any Net Proceeds from Asset Sales that are not applied or invested as provided in the first sentence of this paragraph shall (as hereinafter definedafter the expiration of the periods specified in this paragraph) in excess of be deemed to constitute "Excess Proceeds." When the aggregate amount of Budgeted Expenses (as defined Excess Proceeds exceeds $10.0 million, the Company shall make an Asset Sale Offer to purchase the maximum principal amount of Notes and any Pari Passu Indebtedness to which the Asset Sale Offer applies that may be purchased out of the Excess Proceeds, at an offer price in Section 15(e) hereof) as set forth in the most recent Budget (as defined in Section 15(e)) required to be delivered pursuant to Section 15(e) hereof, Borrower shall prepay the Forbearance Period Advances as set forth in Section 3(i) hereof cash in an aggregate amount equal to such excess amount; provided, that (A) such Net Asset Sale Proceeds shall be deposited directly by the payee thereof into a deposit account held by Borrower at Amegy Bank, N.A. and (B) if, within 30 days of Borrower’s receipt of such Net Asset Sale Proceeds, Borrower has not paid one or more such Budgeted Expenses in an aggregate amount equal to 100% of the principal amount thereof plus accrued and unpaid interest, if any, thereon to the date of such proceeds not otherwise required to prepay purchase, in accordance with the Forbearance Period Advances, then Borrower shall prepay the Forbearance Period Advances as procedures set forth in Section 3(i) 3.09 hereof in or the agreements governing the Pari Passu Indebtedness, as applicable. To the extent that the aggregate amount of Notes tendered or Pari Passu Indebtedness tendered pursuant to an Asset Sale Offer is less than the Excess Proceeds, the Company may use any remaining Excess Proceeds for general corporate purposes. If the aggregate principal amount equal to of Notes surrendered by Holders thereof and Pari Passu Indebtedness surrendered by holders or lenders thereof, collectively, exceeds the amount not so paid. “Net Asset Sale of Excess Proceeds” means, with respect the Trustee shall select the Notes and Pari Passu Indebtedness to any Asset Sale be purchased on a pro rata basis, based on the aggregate principal amount (or accreted value, as hereinafter defined), an amount equal to: (1applicable) cash payments received by Borrower or any of its Subsidiaries from such Asset Sale, minus (2) any bona fide direct costs and expenses incurred thereof surrendered in connection with such Asset Sale to the extent paid or payable to non-Affiliates, including (x) income or gains taxes payable or reasonably estimated to be payable by the seller as a result of any gain recognized in connection with such Asset Sale during the tax period the sale occurs, (y) payment of the obligations (other than the Loans) secured by a Lien on the assets in question, which is required to be repaid under the terms thereof as a result of such Asset Sale, and (z) a reasonable reserve for any adjustments in respect to sale price of such assets and any indemnification payments (fixed or contingent) attributable to seller’s indemnities and representations and warranties to purchaser in respect Offer. Upon completion of such Asset Sale undertaken by Borrower or any of its Subsidiaries in connection with such Asset Sale; provided that upon release of any such reserveOffer, the amount released of Excess Proceeds shall be considered Net Asset Sale Proceeds). “Asset Sale” means a sale, lease or sublease (as lessor or sublessor), sale and leaseback, assignment, conveyance, transfer, license or other disposition to, or any exchange of property with, any Person (other than to or with a Credit Party), in one transaction or a series of transactions, of all or any part of any Credit Party’s businesses, assets or properties of any kind, whether real, personal, or mixed and whether tangible or intangible, whether now owned or hereafter acquired, leased or licensed, including, without limitation, the capital stock of any Credit Party, other than inventory or other assets sold or leased, or cash or cash equivalents disposed of, in each case, in the ordinary course of business. For purposes of clarification, “Asset Sale” shall (i) include (x) the sale or other disposition for value of any contracts or (y) the early termination or modification of any contract resulting in the receipt by any Credit Party of a cash payment or other consideration in exchange for such event (other than payments in the ordinary course of business for accrued and unpaid amounts due through the date of termination or modification) and (ii) exclude any taking or other disposition by means of power of eminent domain, condemnation or similar power, threat or rightreset at zero.
Appears in 1 contract
Sources: Indenture (Forcenergy Inc)
Asset Sales. No later than the first business day following the date of receipt(a) Holdings will not, in and will not permit any given monthRestricted Subsidiary to, by Borrower or any of its Subsidiaries of any Net consummate an Asset Sale Proceeds or a Permitted Seadrift Equity Disposition unless:
(1) In the case of an Asset Sale, Holdings or such Restricted Subsidiary, as hereinafter defined) in excess the case may be, receives consideration at the time of such Asset Sale at least equal to the fair market value of the aggregate amount assets sold or otherwise disposed of Budgeted Expenses as determined at the time the commitment to make such Asset Sale is given; and
(2) In the case of an Asset Sale, at least 75% of the consideration received by Holdings or a Restricted Subsidiary from such Asset Sale, together with the consideration from all other Asset Sales since the Effective Date (on a cumulative basis) received by Holdings or a Restricted Subsidiary, as defined in Section 15(e) hereof) as set forth the case may be, is in the most recent Budget (as defined in Section 15(e)) required to be delivered pursuant to Section 15(e) hereof, Borrower shall prepay the Forbearance Period Advances as set forth in Section 3(i) hereof in an aggregate amount equal to such excess amountform of cash or Cash Equivalents; provided, that the following shall be deemed to be Cash Equivalents for purposes of this clause (A2) and for no other purpose:
a. the amount of any liabilities (as shown on Holdings’ or such Net Restricted Subsidiary’s most recent balance sheet or in the footnotes thereto) of Holdings or such Restricted Subsidiary, other than liabilities that are by their terms subordinated to the Loans, that: (i) are assumed by the transferee of any such assets in connection with an Asset Sale Proceeds shall to a Third Party for a bona fide business purpose, or (ii) that are otherwise cancelled or terminated in connection with the transaction with such transferee (other than intercompany debt owed to Holdings or its Restricted Subsidiaries) and, in each case, for which Holdings and all of its Restricted Subsidiaries have been validly released by all applicable creditors in writing;
b. the fair market value at the time of the relevant Asset Sale of any securities, notes or other obligations or assets received by Holdings or such Restricted Subsidiary from such transferee that are converted by Holdings or such Restricted Subsidiary into cash or Cash Equivalents (to the extent of the Cash Equivalents received) within 180 days following the closing of such Asset Sale;
c. [reserved];
d. the principal amount of any Indebtedness of any Restricted Subsidiary that ceases to be deposited directly by a Restricted Subsidiary as a result of such Asset Sale (other than intercompany debt owed to Holdings or its Restricted Subsidiaries or debt subordinated to the payee thereof into Loans), to the extent that Holdings and each other Restricted Subsidiary are released from any guarantee of payment of the principal amount of such Indebtedness in connection with such Asset Sale, and
e. the fair market value of property or assets received as consideration in such Asset Sale so long as Holdings and its Restricted Subsidiaries would be permitted to make Investments in such property or assets with the Net Proceeds, if any, of such Asset Sale pursuant to clause (b)(2) of this covenant.
(3) in the case of a deposit account held by Borrower Permitted Seadrift Equity Disposition, (i) the Loan Parties or Seadrift receive consideration at Amegy Bank, N.A. the time of such Permitted Seadrift Equity Disposition at least equal to the fair market value of the assets sold or otherwise disposed of as determined at the time the commitment to make such Permitted Seadrift Equity Disposition is given; and (Bii) if, within 30 days of Borrower’s receipt of such Net Asset Sale Proceeds, Borrower has not paid one or more such Budgeted Expenses in an aggregate amount equal to 100at least 75% of the consideration received by the Loan Parties or Seadrift from such Permitted Seadrift Equity Disposition is in the form of cash or Cash Equivalents; provided, that the following shall be deemed to be Cash Equivalents for purposes of this clause (ii) and for no other purpose:
a. the amount of any liabilities (as shown on the applicable Loan Party’s or Seadrift’s most recent balance sheet or in the footnotes thereto) of the Loan Parties or Seadrift, other than liabilities that are by their terms subordinated to the Loans, that: (i) are assumed by the Third Party transferee of the Permitted Seadrift Equity Disposition, or (ii) that are otherwise cancelled or terminated in connection with the transaction with such proceeds not otherwise required Third Party transferee (other than intercompany debt owed to prepay Holdings or its Restricted Subsidiaries) and, in each case, for which Holdings and all of its Restricted Subsidiaries have been validly released by all applicable creditors in writing;
b. the Forbearance Period Advancesfair market value at the time of the relevant Permitted Seadrift Equity Disposition of any securities, then Borrower notes or other obligations or assets received by such Loan Parties or Seadrift from such transferee that are converted by such Loan Parties into cash or Cash Equivalents (to the extent of the Cash Equivalents received) within 180 days following the closing of such Permitted Seadrift Equity Disposition; and
c. the fair market value of property or assets received as consideration in such Permitted Seadrift Equity Disposition so long as Holdings and its Restricted Subsidiaries would be permitted to make Investments in such property or assets with the Net Proceeds, if any, of such Permitted Seadrift Equity Disposition pursuant to clause (b)(2) of this covenant.
(b) Within (x) 365 days after the receipt of any Net Proceeds of any Asset Sale or (y) 730 days after the receipt of any Net Proceeds of any Permitted Seadrift Equity Disposition, Holdings or such Restricted Subsidiary, at its option, may apply the Net Proceeds from such Asset Sale or Permitted Seadrift Equity Disposition:
(1) (a) in the case of an Asset Sale, to the extent the assets or property disposed of in the Asset Sale constituted Collateral or the Calais Facility, to repay: (i) Obligations under the Revolving Credit Facilities (without a corresponding commitment reduction), (ii) Term Loans (it being understood and agreed that any reduction of Delayed Draw Commitments shall prepay the Forbearance Period Advances as set forth in Section 3(i) hereof be deemed, dollar-for-dollar, an application of Net Proceeds in an amount equal to the amount not Delayed Draw Commitments so paid. “Net Asset Sale Proceeds” means, with respect to any Asset Sale (as hereinafter definedreduced), an amount equal to: or (1iii) cash payments received by Borrower any other First Lien Indebtedness, other than Indebtedness owed to Holdings or a Restricted Subsidiary; provided that if Holdings or a Restricted Subsidiary shall repay any Obligations under the Revolving Credit Facilities or any other First Lien Indebtedness, it shall (x) reduce the principal amount of its Subsidiaries from the Term Loans equally and ratably with the principal amount of any such Asset Sale, minus Revolving Credit Facilities and such other First Lien Indebtedness repaid pursuant to this clause (21)(a) any bona fide direct costs and expenses incurred as provided in connection with such Asset Sale Section 2.11(a) and/or through open market purchases of the Term Loans (to the extent paid such purchases are at or payable to non-Affiliates, including (xabove 100% of the principal amount thereof) income or gains taxes payable or reasonably estimated to be payable by the seller as a result of any gain recognized in connection with such Asset Sale during the tax period the sale occurs, and/or (y) payment of make an offer (in accordance with the obligations (other than the Loansprocedures set forth in this Section 5.12) secured by to all Lenders to prepay their Term Loans on a Lien on the assets in question, which is required to be repaid under the terms thereof as a result of such Asset Sale, and (z) a reasonable reserve for any adjustments in respect to sale price of such assets and any indemnification payments (fixed or contingent) attributable to seller’s indemnities and representations and warranties to purchaser in respect of such Asset Sale undertaken by Borrower or any of its Subsidiaries in connection with such Asset Sale; provided that upon release of any such reserve, the amount released shall be considered Net Asset Sale Proceeds). “Asset Sale” means a sale, lease or sublease (as lessor or sublessor), sale and leaseback, assignment, conveyance, transfer, license or other disposition to, or any exchange of property with, any Person (other than to or with a Credit Party), in one transaction or a series of transactions, of all or any part of any Credit Party’s businesses, assets or properties of any kind, whether real, personal, or mixed and whether tangible or intangible, whether now owned or hereafter acquired, leased or licensed, including, without limitation, the capital stock of any Credit Party, other than inventory or other assets sold or leased, or cash or cash equivalents disposed of, in each case, in the ordinary course of business. For purposes of clarification, “Asset Sale” shall (i) include (x) the sale or other disposition for value of any contracts or (y) the early termination or modification of any contract resulting in the receipt by any Credit Party of a cash payment or other consideration in exchange for such event (other than payments in the ordinary course of business for accrued and unpaid amounts due through the date of termination or modification) and (ii) exclude any taking or other disposition by means of power of eminent domain, condemnation or similar power, threat or right.ratable basis;
Appears in 1 contract
Sources: Term Loan Credit Agreement (Graftech International LTD)
Asset Sales. No later than the first business day following fifth (5th) Business Day after the date of receipt, in any given month, by Borrower Borrower’s or any of its Subsidiaries a Restricted Subsidiary’s receipt of any Net Asset Sale Proceeds (as hereinafter defined) in excess of $5,000,000 from any Asset Sale, the Borrower shall make an offer to the Lenders to prepay the Loans in an aggregate principal amount equal to such portion of Budgeted Expenses such Net Proceeds as permitted hereunder, at a price equal to 100.0% of the principal amount thereof, plus accrued and unpaid interest and additional interest, if any; provided that, so long as no Event of Default under Sections 7.1(a)(i), (as defined vii) or (viii) shall have occurred and be continuing at the time the Net Proceeds from any such Asset Sales are received and such Net Proceeds are not received in Section 15(econnection with a Regulatory Approval Asset Sale, the Borrower shall have the option, directly or through one or more of its Restricted Subsidiaries, to reinvest such Net Proceeds to the extent (x) hereofsuch Net Proceeds are so reinvested within ninety (90) days of receipt thereof, or (y) the Borrower or one or more of its Restricted Subsidiaries have committed to reinvest such Net Proceeds during such ninety (90)-day period and such Net Proceeds are so reinvested within ninety (90) days after the expiration of the initial ninety (90)-day period, in assets useful in the business of the Borrower and its Restricted Subsidiaries (or to use such Net Proceeds to replace assets Disposed of in such Asset Sale); provided, further, that any Net Proceeds not so reinvested shall be applied to the prepayment of the Loans as set forth in this Section 2.11(a) at the most recent Budget (as defined in Section 15(e)) end of such reinvestment period. Notwithstanding the foregoing, the Borrower shall not be required to be delivered pursuant cause any Restricted Subsidiary to Section 15(e) hereof, Borrower shall prepay pay cash distributions with the Forbearance Period Advances as set forth in Section 3(i) hereof in an aggregate amount equal to such excess amount; provided, that (A) such Net Asset Sale Proceeds shall be deposited directly by the payee thereof into a deposit account held by Borrower at Amegy Bank, N.A. and (B) if, within 30 days of Borrower’s receipt of such Net Asset Sale Proceeds, Borrower has not paid one or more such Budgeted Expenses in an aggregate amount equal to 100% of the amount of such proceeds not otherwise required to prepay the Forbearance Period Advances, then Borrower shall prepay the Forbearance Period Advances as set forth in Section 3(i) hereof in an amount equal to the amount not so paid. “Net Asset Sale Proceeds” means, with respect to from any Asset Sale (as hereinafter defined), an amount equal to: (1) cash payments received by Borrower or any of its Subsidiaries from such Asset Sale, minus (2) any bona fide direct costs and expenses incurred in connection with such Asset Sale to the extent paid or payable to non-Affiliates, including (x) income or gains taxes payable or reasonably estimated to be payable that such distributions are not permitted by the seller as a result terms of any gain recognized in connection with such Asset Sale during the tax period the sale occurs, (y) payment of the obligations (other than the Loans) secured by a Lien on the assets in question, which is required to be repaid under the terms thereof as a result of such Asset Sale, and (z) a reasonable reserve for any adjustments in respect to sale price of such assets and any indemnification payments (fixed or contingent) attributable to seller’s indemnities and representations and warranties to purchaser in respect of such Asset Sale undertaken by Borrower or any of its Subsidiaries in connection with such Asset Sale; provided that upon release of any such reserve, the amount released shall be considered Net Asset Sale Proceeds). “Asset Sale” means a sale, lease or sublease (as lessor or sublessor), sale and leaseback, assignment, conveyance, transfer, license or other disposition to, or any exchange of property with, any Person (other than to or with a Credit Party), in one transaction or a series of transactions, of all or any part of any Credit Party’s businesses, assets or properties of any kind, whether real, personal, or mixed and whether tangible or intangible, whether now owned or hereafter acquired, leased or licensed, including, without limitation, the capital stock of any Credit Party, other than inventory or other assets sold or leased, or cash or cash equivalents disposed of, in each case, in the ordinary course of business. For purposes of clarification, “Asset Sale” shall (i) include (x) the sale or other disposition for value of any contracts or (y) the early termination or modification of any contract resulting in existence on the receipt by Closing Date to which such Restricted Subsidiary is bound or subject to (including any Credit Party contract governing Indebtedness or preferred equity of a cash payment or other consideration in exchange for such event (other than payments in the ordinary course of business for accrued and unpaid amounts due through the date of termination or modification) and Restricted Subsidiary), (ii) exclude applicable Organizational Documents, applicable governmental approvals or applicable Law, (iii) any taking contract governing Permitted Indebtedness described under clause (a) of the definition thereof, so long as such contract does not include any limitation on cash distributions by any Restricted Subsidiary that is materially more restrictive than the limitations set forth in the existing debt facility, loan agreement or other disposition debt document being refinanced thereby, or (iv) any contract governing Permitted Indebtedness described under clause (c) of the definition thereof, so long as such contract does not include any limitation on cash distributions by means of power of eminent domain, condemnation or similar power, threat or rightany Restricted Subsidiary that is materially more restrictive than the limitations set forth in the Repauno Credit Agreement.
Appears in 1 contract
Asset Sales. No Not later than the first business day 10th Business Day following the date of receipt, in any given month, receipt by the Borrower or any of its Subsidiaries Restricted Subsidiary of any Net Proceeds in respect of any Asset Sale Proceeds (as hereinafter defined) in excess of Sale, the aggregate amount of Budgeted Expenses (as defined in Section 15(e) hereof) as set forth in the most recent Budget (as defined in Section 15(e)) required to be delivered pursuant to Section 15(e) hereof, Borrower shall prepay the Forbearance Period Advances as set forth in Section 3(i) hereof in an aggregate amount equal to such excess amount; provided, that (A) such Net Asset Sale Proceeds shall be deposited directly by the payee thereof into a deposit account held by Borrower at Amegy Bank, N.A. and (B) if, within 30 days of Borrower’s receipt of such Net Asset Sale Proceeds, Borrower has not paid one or more such Budgeted Expenses Borrowings in an aggregate amount equal to 100% of such Net Proceeds (excluding therefrom, however, in the case of any Asset Sale involving any ABL Priority Collateral (whether in the form of a direct sale, transfer or other disposition of such ABL Priority Collateral or a sale, transfer or other disposition of Equity Interests in any Restricted Subsidiary owning such ABL Priority Collateral) that secures any Permitted Revolving Indebtedness at the time such Asset Sale occurs, the portion of such Net Proceeds attributable to the fair value of such ABL Priority Collateral (net of any related transferred liabilities, in each case as determined reasonably and in good faith by an Authorized Officer of the Borrower)); provided that (i) no such prepayment shall be required to be made (but, in the sole discretion of the Borrower, may be made) until and unless the aggregate amount of Net Proceeds in respect of all Asset Sales exceed the greater of (A) $10,000,000 and (B) 16.7% of Consolidated Adjusted EBITDA for the most recently ended Test Period, in any Fiscal Year, at which time the prepayment shall be required to be made only with respect to such Net Proceeds in excess of such annual amount, and (ii) the Borrower may, prior to the date of the required prepayment, deliver to the Administrative Agent a certificate of an Authorized Officer of the Borrower to the effect that the Borrower intends to cause such Net Proceeds (or a portion thereof specified in such certificate) to be used to restore, rebuild, repair, construct, improve, replace or otherwise acquire assets useful in the business of the Borrower and the Restricted Subsidiaries or to be applied to consummate an Acquisition (provided that to the extent of the fair value of any Term Priority Collateral subject to such Asset Sale (as determined reasonably and in good faith by an Authorized Officer of the Borrower), the assets to be reinvested in or to be acquired as part of such Acquisition shall constitute Term Priority Collateral), in each case, within 365 days after the receipt of such Net Proceeds, in which case during such period the Borrower shall not be required to make such prepayment to the extent of the amount set forth in such certificate; provided further that any such Net Proceeds that are not so reinvested or applied by the end of such period (or, if by the end of such 365-day period the Borrower or one or more Restricted Subsidiaries shall have entered into a binding agreement with a third party to acquire such assets or to consummate an Acquisition, within a period of 180 days thereafter) shall be applied to prepay the Borrowings promptly upon the expiration of such period. Notwithstanding the foregoing, the Borrower may use a portion of any Net Proceeds in respect of any Asset Sale that would otherwise be required pursuant to this Section 2.14(a) to be applied to prepay the Borrowings to prepay, repurchase or redeem any Permitted Credit Agreement Refinancing Indebtedness or any Permitted Incremental Equivalent Indebtedness that, in each case, constitutes Permitted Pari Passu Secured Indebtedness but only to the extent such Permitted Pari Passu Secured Indebtedness pursuant to the terms thereof is required to be (or is required to be offered to the holders thereof to be) prepaid, repurchased or redeemed as a result of such Asset Sale (with the amount of the prepayment of the Borrowings that would otherwise have been required pursuant to this Section 2.14(a) being reduced accordingly), provided that (i) such portion shall not exceed the product of (x) the amount of such proceeds not otherwise required to prepay the Forbearance Period Advances, then Borrower shall prepay the Forbearance Period Advances as set forth in Section 3(i) hereof in an amount equal to the amount not so paid. “Net Asset Sale Proceeds” means, with respect to any Asset Sale (as hereinafter defined), an amount equal to: (1) cash payments received Proceeds multiplied by Borrower or any of its Subsidiaries from such Asset Sale, minus (2) any bona fide direct costs and expenses incurred in connection with such Asset Sale to the extent paid or payable to non-Affiliates, including (x) income or gains taxes payable or reasonably estimated to be payable by the seller as a result of any gain recognized in connection with such Asset Sale during the tax period the sale occurs, (y) payment a fraction of which the numerator is the outstanding aggregate principal amount of such Permitted Pari Passu Secured Indebtedness and the denominator is the sum of the obligations (other than aggregate principal amount of such Permitted Pari Passu Secured Indebtedness and all Borrowings, in each case at the Loans) secured by a Lien on the assets in question, which is required to be repaid under the terms thereof as a result time of occurrence of such Asset Sale, and (zii) a reasonable reserve for any adjustments in respect to sale price the event the holders of such assets and any indemnification payments (fixed Permitted Pari Passu Secured Indebtedness shall have declined such prepayment, repurchase or contingent) attributable to seller’s indemnities and representations and warranties to purchaser in respect of such Asset Sale undertaken by Borrower or any of its Subsidiaries in connection with such Asset Sale; provided that upon release of any such reserveredemption, the declined amount released shall be considered Net Asset Sale Proceeds). “Asset Sale” means a sale, lease or sublease promptly (as lessor or sublessor), sale and leaseback, assignment, conveyance, transfer, license or other disposition to, or in any exchange of property with, any Person (other than to or with a Credit Party), in one transaction or a series of transactions, of all or any part of any Credit Party’s businesses, assets or properties of any kind, whether real, personal, or mixed and whether tangible or intangible, whether now owned or hereafter acquired, leased or licensed, including, without limitation, the capital stock of any Credit Party, other than inventory or other assets sold or leased, or cash or cash equivalents disposed of, in each case, in the ordinary course of business. For purposes of clarification, “Asset Sale” shall (i) include (x) the sale or other disposition for value of any contracts or (y) the early termination or modification of any contract resulting in the receipt by any Credit Party of a cash payment or other consideration in exchange for such event (other than payments in the ordinary course of business for accrued and unpaid amounts due through within 10 Business Days after the date of termination or modificationrejection) and (ii) exclude be applied to prepay the Borrowings. Any amount set forth in any taking certificate delivered as referred to above shall, pending reinvestment or other disposition by means application as provided herein, be deposited in the Term Priority Collateral Proceeds Account and shall not be commingled with any other deposit accounts or funds (with the Collateral Agent hereby agreeing to release such Net Proceeds held in the Term Priority Collateral Proceeds Account to the Borrower promptly upon request of power the Borrower and delivery to the Collateral Agent of eminent domain, condemnation or similar power, threat or righta certificate of an Authorized Officer of the Borrower to the effect that the Net Proceeds so released will be promptly applied in accordance with this Section 2.14(a)).
Appears in 1 contract
Sources: Term Credit and Guaranty Agreement (QualTek Services Inc.)
Asset Sales. No later The Parent Guarantor shall not, and shall not permit any of its Restricted Subsidiaries to, make any Asset Sale unless the following conditions are met:
(a) The Asset Sale is for at least Fair Market Value.
(b) At least 75% of the aggregate consideration received by the Parent Guarantor or its Restricted Subsidiaries for such Asset Sale and all other Asset Sales since the Issue Date consists of cash or Cash Equivalents. For purposes of this clause (b), each of the following shall be considered to be cash or Cash Equivalents:
(i) the assumption by the purchaser of Debt or other obligations or liabilities (as shown on the Parent Guarantor’s most recent balance sheet or in the footnotes thereto) (other than Subordinated Debt or other obligations or liabilities subordinated in right of payment to the Notes) of the Parent Guarantor or a Restricted Subsidiary pursuant to operation of law or a customary novation or assumption agreement;
(ii) Additional Assets;
(iii) instruments, notes, securities or other obligations received by the Parent Guarantor or such Restricted Subsidiary from the purchaser that are promptly, but in any event within 90 days of the closing, converted by the Parent Guarantor or such Restricted Subsidiary to cash or Cash Equivalents, to the extent of the cash or Cash Equivalents actually so received; and
(iv) any Designated Non-cash Consideration received by the Parent Guarantor or such Restricted Subsidiary in the Asset Sale having an aggregate Fair Market Value, taken together with all other Designated Non-cash Consideration received pursuant to this clause (iv) that is at that time outstanding, not to exceed the greater of (x) $20.0 million and (y) 1.0% of the Parent Guarantor’s Consolidated Net Tangible Assets at the time of receipt of such outstanding 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 in each case be considered cash or Cash Equivalents.
(c) Within 360 days after the receipt of any Net Cash Proceeds from an Asset Sale, the Parent Guarantor or a Restricted Subsidiary may apply such Net Cash Proceeds at its option:
(i) to permanently repay secured Debt of the Company or a Guarantor or any Debt of a Restricted Subsidiary that is neither the Issuer nor a Guarantor owing to a Person other than the first business day following Parent Guarantor or a Restricted Subsidiary and, in the case of a revolving credit, permanently reduce the commitments thereunder by such amount; or
(ii) to acquire Additional Assets or to make capital expenditures in a Permitted Business. A binding commitment to make an acquisition referred to in clause (ii) shall be treated as a permitted application of the Net Cash Proceeds from the date of receiptsuch commitment; provided that (x) such investment is consummated within 360 days after the earlier of the making of such commitment and the end of the 360-day period referred to in the first sentence of this clause (c) (it being understood that if such commitment is for an LBA, in any given month, by Borrower LBM or any of its Subsidiaries of any other purchase, lease or other arrangement for mineral or surface rights, the Net Asset Sale Cash Proceeds need only be applied as and when installments are due and payable) and (y) if such acquisition is not consummated within the period set forth in subclause (x) or such binding commitment is terminated, the Net Cash Proceeds not so applied will be deemed to be Excess Proceeds (as hereinafter defineddefined below).
(d) The Net Cash Proceeds of an Asset Sale not applied pursuant to clause (c) within 360 days of the Asset Sale constitute “Excess Proceeds.” Excess Proceeds of less than $25.0 million will be carried forward and accumulated. When the aggregate amount of the accumulated Excess Proceeds equals or exceeds such amount, the Company must, within 30 days, make an Offer to Purchase Notes having a principal amount equal to
(i) accumulated Excess Proceeds, multiplied by
(ii) a fraction (x) the numerator of which is equal to the outstanding aggregate principal amount of the Notes and (y) the denominator of which is equal to the outstanding aggregate principal amount of the Notes and all pari passu Debt similarly required to be repaid, redeemed or tendered for in connection with the Asset Sale, rounded down to the nearest $1,000. The purchase price for the Notes will be 100% of the principal amount plus accrued interest to the date of purchase (subject to the right of Holders of record on the relevant record date to receive interest due on the relevant Interest Payment Date). If the Offer to Purchase is for less than all of the outstanding Notes and Notes in an aggregate principal amount in excess of the aggregate purchase amount of Budgeted Expenses (as defined in Section 15(e) hereof) as set forth in the most recent Budget (as defined in Section 15(e)) required to be delivered are tendered and not withdrawn pursuant to Section 15(e) hereofthe offer, Borrower shall prepay the Forbearance Period Advances as set forth in Section 3(i) hereof in Company will purchase Notes having an aggregate amount equal to such excess amount; provided, that (A) such Net Asset Sale Proceeds shall be deposited directly by the payee thereof into a deposit account held by Borrower at Amegy Bank, N.A. and (B) if, within 30 days of Borrower’s receipt of such Net Asset Sale Proceeds, Borrower has not paid one or more such Budgeted Expenses in an aggregate amount equal to 100% of the amount of such proceeds not otherwise required to prepay the Forbearance Period Advances, then Borrower shall prepay the Forbearance Period Advances as set forth in Section 3(i) hereof in an principal amount equal to the purchase amount not so paid. “Net Asset Sale Proceeds” meanson a pro rata basis, with respect adjustments so that only Notes in multiples of $1,000 principal amount (and in a minimum amount of $2,000) will be purchased. Upon completion of the Offer to Purchase, Excess Proceeds will be reset at zero, and any Asset Sale Excess Proceeds remaining after consummation of the Offer to Purchase may be used for any purpose not otherwise prohibited by the Indenture.
(as hereinafter defined), an amount equal to: (1e) cash payments received by Borrower or The Company shall comply with the requirements of Rule 14e-1 under the Exchange Act and any of its Subsidiaries from such Asset Sale, minus (2) any bona fide direct costs other securities laws and expenses incurred regulations thereunder to the extent those laws and regulations are applicable in connection with such Asset Sale each purchase of Notes pursuant to an Offer to Purchase. To the extent paid or payable to non-Affiliates, including (x) income or gains taxes payable or reasonably estimated to be payable by that the seller as a result provisions of any gain recognized in connection securities laws or regulations conflict with such Asset Sale during Section 4.09 or this Section 5.07, the tax period Company shall comply with the sale occurs, (y) payment of the applicable securities laws and regulations and shall not be deemed to have breached its obligations (other than the Loans) secured under Section 4.09 or this Section 5.07 by a Lien on the assets in question, which is required to be repaid under the terms thereof as a result virtue of such Asset Sale, and (z) a reasonable reserve for any adjustments in respect to sale price of such assets and any indemnification payments (fixed or contingent) attributable to seller’s indemnities and representations and warranties to purchaser in respect of such Asset Sale undertaken by Borrower or any of its Subsidiaries in connection with such Asset Sale; provided that upon release of any such reserve, the amount released shall be considered Net Asset Sale Proceeds). “Asset Sale” means a sale, lease or sublease (as lessor or sublessor), sale and leaseback, assignment, conveyance, transfer, license or other disposition to, or any exchange of property with, any Person (other than to or with a Credit Party), in one transaction or a series of transactions, of all or any part of any Credit Party’s businesses, assets or properties of any kind, whether real, personal, or mixed and whether tangible or intangible, whether now owned or hereafter acquired, leased or licensed, including, without limitation, the capital stock of any Credit Party, other than inventory or other assets sold or leased, or cash or cash equivalents disposed of, in each case, in the ordinary course of business. For purposes of clarification, “Asset Sale” shall (i) include (x) the sale or other disposition for value of any contracts or (y) the early termination or modification of any contract resulting in the receipt by any Credit Party of a cash payment or other consideration in exchange for such event (other than payments in the ordinary course of business for accrued and unpaid amounts due through the date of termination or modification) and (ii) exclude any taking or other disposition by means of power of eminent domain, condemnation or similar power, threat or rightconflict.
Appears in 1 contract
Sources: First Supplemental Indenture (Cloud Peak Energy Resources LLC)
Asset Sales. No later than The Company will not, and will not permit any of its Restricted Subsidiaries to, consummate an Asset Sale unless:
(1) the first business day 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; and
(2) at least 75% of the consideration received by the Company or such Restricted Subsidiary in the Asset Sale and all other Asset Sales since September 21, 2010 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 be deemed to be cash:
(A) any liabilities, as shown on the Company’s most recent consolidated balance sheet (or as would be shown on the Company’s consolidated balance sheet as of the date of receiptsuch Asset Sale), in any given month, by Borrower of the Company or any Restricted Subsidiary (other than contingent liabilities and liabilities that are by their terms subordinated to the Notes or any Note Guarantee) that are assumed by the transferee of its Subsidiaries any such assets pursuant to a 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 by the Company or such Restricted Subsidiary into cash, Cash Equivalents or Replacement Assets within 90 days after such Asset Sale, to the extent of the cash, Cash Equivalents or Replacement Assets received in that conversion. Notwithstanding the foregoing, the 75% limitation referred to above shall be deemed satisfied with respect to any Asset Sale in which the cash, Cash Equivalents or Replacement Assets portion of the consideration received therefrom, determined in accordance with the foregoing provision 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 from an Asset Sale, the Company or a Restricted Subsidiary may apply an amount equal to such Net Proceeds:
(1) to purchase Replacement Assets; or
(2) to prepay, repay, defease, redeem, purchase or otherwise retire Indebtedness and other Obligations under a Credit Facility or Indebtedness secured by property that is subject to such Asset Sale and, if the Indebtedness repaid is revolving credit Indebtedness, to correspondingly reduce commitments with respect thereto. Notwithstanding the foregoing, if within 365 days after the receipt of any Net Proceeds from an Asset Sale, the Company or a Restricted Subsidiary enters into a binding written agreement committing the Company or such Restricted Subsidiary, subject to customary conditions, to an application of funds of the kind described in clause (1) above, the Company or such Restricted Subsidiary shall be deemed not to be in violation of the preceding paragraph so long as hereinafter defined) such application of funds is consummated within 545 days of the receipt of such Net Proceeds. Pending the final application of any Net Proceeds of an Asset Sale, the Company may temporarily reduce revolving credit borrowings or otherwise use the Net Proceeds in excess any manner that is not prohibited by this Indenture. An amount equal to any Net Proceeds from Asset Sales that are not applied or invested as provided in the third paragraph of this Section 4.10 will constitute “Excess Proceeds.” When the aggregate amount of Budgeted Expenses (as defined in Section 15(e) hereof) as set forth in Excess Proceeds exceeds $100.0 million, within 20 days thereof, the most recent Budget (as defined in Section 15(e)) required to be delivered pursuant to Section 15(e) hereof, Borrower Company shall prepay apply the Forbearance Period Advances as set forth in Section 3(i) hereof in an entire aggregate amount equal of unutilized Excess Proceeds (not only the amount in excess of $100.0 million) to such excess amount; provided, that (A) such Net make an Asset Sale Proceeds shall Offer to all Holders and all holders of other Indebtedness that is pari passu with the Notes containing provisions requiring the Company to make an offer to purchase or redeem with the proceeds of sales of assets in accordance with Section 3.07 hereof to purchase the maximum principal amount of Notes and purchase or redeem such other pari passu Indebtedness that may be deposited directly by purchased or redeemed out of the payee thereof into a deposit account held by Borrower at Amegy Bank, N.A. and (B) if, within 30 days of Borrower’s receipt of such Net Excess Proceeds. The offer price in any Asset Sale Proceeds, Borrower has not paid one or more such Budgeted Expenses in an aggregate amount Offer will be equal to 100% of the principal amount of the Notes and such proceeds other pari passu Indebtedness that may be purchased or redeemed with Excess Proceeds, plus accrued and unpaid interest to, but not including, the date of consummation of the 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 in response to such Asset Sale Offer exceeds the amount of Excess Proceeds, the Trustee shall select the Notes and the Company will select such other pari passu Indebtedness to be purchased or redeemed on a pro rata basis unless otherwise required to prepay by law or applicable stock exchange or depositary requirements. Upon completion of each Asset Sale Offer, the Forbearance Period Advances, then Borrower shall prepay amount of Excess Proceeds will be reset at zero. The Company will comply with the Forbearance Period Advances as set forth in Section 3(i) hereof in an amount equal requirements of Rule 14e-1 under the Exchange Act and any other securities laws and regulations thereunder to the amount not so paid. “Net Asset Sale Proceeds” means, with respect to any Asset Sale (as hereinafter defined), an amount equal to: (1) cash payments received by Borrower or any of its Subsidiaries from such Asset Sale, minus (2) any bona fide direct costs extent those laws and expenses incurred regulations are applicable in connection with such each repurchase of Notes pursuant to an Asset Sale to Offer. To the extent paid or payable to non-Affiliates, including (x) income or gains taxes payable or reasonably estimated to be payable by that the seller as a result provisions of any gain recognized in connection securities laws or regulations conflict with such Asset Sale during the tax period the sale occursprovisions of Section 3.07 hereof or this Section 4.10, (y) payment of the obligations (other than the Loans) secured by or compliance with Section 3.07 hereof or this Section 4.10 would constitute a Lien on the assets in question, which is required to be repaid under the terms thereof as a result of such Asset Sale, and (z) a reasonable reserve for any adjustments in respect to sale price of such assets and any indemnification payments (fixed or contingent) attributable to seller’s indemnities and representations and warranties to purchaser in respect of such Asset Sale undertaken by Borrower or any of its Subsidiaries in connection with such Asset Sale; provided that upon release violation of any such reservelaws or regulations, the amount released shall Company will comply with the applicable securities laws and regulations and will not be considered Net Asset Sale Proceeds). “Asset Sale” means a sale, lease deemed to have breached its obligations under Section 3.07 hereof or sublease (as lessor or sublessor), sale and leaseback, assignment, conveyance, transfer, license or other disposition to, or any exchange this Section 4.10 by virtue of property with, any Person (other than to or with a Credit Party), in one transaction or a series of transactions, of all or any part of any Credit Party’s businesses, assets or properties of any kind, whether real, personal, or mixed and whether tangible or intangible, whether now owned or hereafter acquired, leased or licensed, including, without limitation, the capital stock of any Credit Party, other than inventory or other assets sold or leased, or cash or cash equivalents disposed of, in each case, in the ordinary course of business. For purposes of clarification, “Asset Sale” shall (i) include (x) the sale or other disposition for value of any contracts or (y) the early termination or modification of any contract resulting in the receipt by any Credit Party of a cash payment or other consideration in exchange for such event (other than payments in the ordinary course of business for accrued and unpaid amounts due through the date of termination or modification) and (ii) exclude any taking or other disposition by means of power of eminent domain, condemnation or similar power, threat or rightcompliance.
Appears in 1 contract
Asset Sales. No later than The Company will not, and will not permit any of its Restricted Subsidiaries to, consummate an Asset Sale unless:
(1) the first business day following 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; and
(2) at least 75% of the consideration received in the Asset Sale by the Company or such Restricted Subsidiary in the Asset Sale and all other Asset Sales since the date of receiptthis Supplemental Indenture is in the form of cash, in Cash Equivalents or Replacement Assets or a combination thereof. For purposes of this provision, each of the following shall be deemed to be cash:
(A) any given monthliabilities, by Borrower as shown on the Company’s most recent consolidated balance sheet (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 Note Guarantee) that are assumed by the transferee of its Subsidiaries any such assets pursuant to a 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 by the Company or such Restricted Subsidiary into cash, Cash Equivalents or Replacement Assets within 90 days after such Asset Sale, to the extent of the cash, Cash Equivalents or Replacement Assets received in that conversion. Notwithstanding the foregoing, the 75% limitation referred to above shall be deemed satisfied with respect to any Asset Sale in which the cash, Cash Equivalents or Replacement Assets portion of the consideration received therefrom, determined in accordance with the foregoing provision 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 from an Asset Sale, the Company or a Restricted Subsidiary may apply an amount equal to such Net Proceeds:
(1) to purchase Replacement Assets; or
(2) to prepay, repay, defease, redeem, purchase or otherwise retire Indebtedness and other Obligations under a Credit Facility or Indebtedness secured by property that is subject to such Asset Sale and, if the Indebtedness repaid is revolving credit Indebtedness, to correspondingly reduce commitments with respect thereto; Notwithstanding the foregoing, if within 365 days after the receipt of any Net Proceeds from an Asset Sale, the Company or a Restricted Subsidiary enters into a binding written agreement irrevocably committing the Company or such Restricted Subsidiary to an application of funds of the kind described in clause (1) above, and as hereinafter defined) to which the only condition to closing not satisfied within 365 days of the receipt of such Net Proceeds is the receipt of required governmental approvals, the Company or such Restricted Subsidiary shall be deemed not to be in excess violation of the preceding paragraph so long as such application of funds is consummated within 545 days of the receipt of such Net Proceeds. Pending the final application of any Net Proceeds of an Asset Sale, the Company may temporarily reduce revolving credit borrowings or otherwise use the Net Proceeds in any manner that is not prohibited by this Supplemental Indenture. An amount equal to any Net Proceeds from Asset Sales that are not applied or invested as provided in the third paragraph of this Section 4.10 will constitute “Excess Proceeds.” When the aggregate amount of Budgeted Expenses (as defined in Section 15(e) hereof) as Excess Proceeds exceeds $20.0 million, within 20 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 Supplemental Indenture with respect to offers to purchase or redeem with the most recent Budget (as defined proceeds of sales of assets in accordance with Section 15(e)) required 3.09 hereof to purchase the maximum principal amount of Notes and such other pari passu Indebtedness that may be delivered pursuant to Section 15(e) hereof, Borrower shall prepay purchased out of the Forbearance Period Advances as set forth Excess Proceeds. The offer price in Section 3(i) hereof in an aggregate amount equal to such excess amount; provided, that (A) such Net any Asset Sale Proceeds shall Offer will be deposited directly by the payee thereof into a deposit account held by Borrower at Amegy Bank, N.A. and (B) if, within 30 days of Borrower’s receipt of such Net Asset Sale Proceeds, Borrower has not paid one or more such Budgeted Expenses in an aggregate amount equal to 100% of the principal amount of the Notes and such proceeds other pari passu Indebtedness that may be purchased with Excess Proceeds, plus accrued and unpaid 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 and its Restricted Subsidiaries may use those Excess Proceeds for any purpose not otherwise required prohibited by this Supplemental Indenture. If the aggregate principal amount of Notes and other pari passu Indebtedness tendered into such Asset Sale Offer exceeds the amount of Excess Proceeds, the Trustee shall select the Notes and the Company will select such other pari passu Indebtedness to prepay be purchased on a pro rata basis. Upon completion of each Asset Sale Offer, the Forbearance Period Advances, then Borrower shall prepay amount of Excess Proceeds will be reset at zero. The Company will comply with the Forbearance Period Advances as set forth in Section 3(i) hereof in an amount equal requirements of Rule 14e-1 under the Exchange Act and any other securities laws and regulations thereunder to the amount not so paid. “Net Asset Sale Proceeds” means, with respect to any Asset Sale (as hereinafter defined), an amount equal to: (1) cash payments received by Borrower or any of its Subsidiaries from extent such Asset Sale, minus (2) any bona fide direct costs laws and expenses incurred regulations are applicable in connection with such each repurchase of Notes pursuant to an Asset Sale to Offer. To the extent paid or payable to non-Affiliates, including (x) income or gains taxes payable or reasonably estimated to be payable by that the seller as a result provisions of any gain recognized in connection securities laws or regulations conflict with such Asset Sale during the tax period the sale occurs, (y) payment provisions of the obligations (other than the Loans) secured by Section 3.09 hereof or this Section 4.10 or compliance with Section 3.09 hereof or this Section 4.10 would constitute a Lien on the assets in question, which is required to be repaid under the terms thereof as a result of such Asset Sale, and (z) a reasonable reserve for any adjustments in respect to sale price of such assets and any indemnification payments (fixed or contingent) attributable to seller’s indemnities and representations and warranties to purchaser in respect of such Asset Sale undertaken by Borrower or any of its Subsidiaries in connection with such Asset Sale; provided that upon release violation of any such reservelaws or regulations, the amount released shall Company will comply with the applicable securities laws and regulations and will not be considered Net Asset Sale Proceeds). “Asset Sale” means a sale, lease deemed to have breached its obligations under Section 3.09 hereof or sublease (as lessor or sublessor), sale and leaseback, assignment, conveyance, transfer, license or other disposition to, or any exchange this Section 4.10 by virtue of property with, any Person (other than to or with a Credit Party), in one transaction or a series of transactions, of all or any part of any Credit Party’s businesses, assets or properties of any kind, whether real, personal, or mixed and whether tangible or intangible, whether now owned or hereafter acquired, leased or licensed, including, without limitation, the capital stock of any Credit Party, other than inventory or other assets sold or leased, or cash or cash equivalents disposed of, in each case, in the ordinary course of business. For purposes of clarification, “Asset Sale” shall (i) include (x) the sale or other disposition for value of any contracts or (y) the early termination or modification of any contract resulting in the receipt by any Credit Party of a cash payment or other consideration in exchange for such event (other than payments in the ordinary course of business for accrued and unpaid amounts due through the date of termination or modification) and (ii) exclude any taking or other disposition by means of power of eminent domain, condemnation or similar power, threat or rightcompliance.
Appears in 1 contract
Sources: First Supplemental Indenture (Metropcs Communications Inc)
Asset Sales. No later than the first business day following the date of receiptThe Company will not, in any given month, by Borrower or and will not permit any of its Restricted Subsidiaries to, engage in an Asset Sale unless (i) the Company (or the Restricted Subsidiary, as the case may be) receives consideration at the time of such Asset Sale at least equal to the fair market value (as determined in good faith by a resolution of the Board of Directors of the Company set forth in an Officer's Certificate delivered to the Trustee, 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 (ii) at least 75% of the consideration therefor received by the Company or such Restricted Subsidiary, is in the form of cash or Cash Equivalents; 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 Exchange Debentures or any 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 and (y) any non-cash consideration received by the Company or any such Restricted Subsidiary that are converted by the Company or such Restricted Subsidiary into cash within 30 days of closing such Asset Sale, shall be deemed to be cash for purposes of this provision (to the extent of the cash received). Within 360 days after the receipt of any Net Proceeds from an Asset Sale Sale, the Company or such Restricted Subsidiary may apply such Net Proceeds, at its option, (a) to permanently reduce Exchange Debenture Senior Debt (and to correspondingly permanently reduce commitments with respect thereto in the case of revolving borrowings), or (b) to an investment in any one or more businesses, capital expenditures or acquisition of other assets, in each case, used or useful in a Permitted Business. Pending the final application of any such Net Proceeds, the Company may temporarily reduce Exchange Debenture Senior Debt that is revolving debt or otherwise invest such Net Proceeds in any manner that is not prohibited by the Exchange Debenture Indenture. Any Net Proceeds from Asset Sales that are not applied as provided in the first sentence of this paragraph will (as hereinafter definedafter the expiration of the periods specified in this paragraph) in excess of be deemed to constitute "Excess Proceeds." When the aggregate amount of Budgeted Expenses (as defined in Section 15(e) hereof) as set forth in Excess Proceeds exceeds $5.0 million, the most recent Budget (as defined in Section 15(e)) Company will be required to be delivered pursuant make an offer to Section 15(e) hereofall Holders of the Exchange Debentures and, Borrower shall prepay to the Forbearance Period Advances as set forth in Section 3(i) hereof in extent required by the terms thereof, to all holders or lenders of Exchange Debenture Pari Passu Debt (an aggregate amount equal to such excess amount; provided, that (A) such Net "Asset Sale Proceeds shall be deposited directly by Offer") to purchase the payee thereof into a deposit account held by Borrower at Amegy Bank, N.A. maximum principal amount of the Exchange Debentures and (B) if, within 30 days of Borrower’s receipt of any such Net Exchange Debenture Pari Passu Debt to which the Asset Sale Offer applies that may be purchased out of the Excess Proceeds, Borrower has not paid one or more such Budgeted Expenses at an offer price in an aggregate amount cash equal to 100% of the principal amount thereof plus accrued and unpaid interest thereon to the date of such proceeds not otherwise required to prepay purchase, in accordance with the Forbearance Period Advances, then Borrower shall prepay the Forbearance Period Advances as procedures set forth in Section 3(i) hereof in the Exchange Debenture Indenture or the agreements governing the Exchange Debenture Pari Passu Debt, as applicable. To the extent that the aggregate principal amount of the Exchange Debentures and Exchange Debenture Pari Passu Debt tendered pursuant to an Asset Sale Offer is less than the Excess Proceeds, the Company may use any remaining Excess Proceeds for general corporate purposes. If the aggregate principal amount equal to of the Exchange Debentures surrendered by Holders thereof and other Exchange Debenture Pari Passu Debt surrendered by holders or lenders thereof, collectively, exceeds the amount not so paid. “Net Asset Sale of Excess Proceeds” means, with respect the Trustee shall select the Exchange Debentures and the trustee or other lender representative for the Exchange Debenture Pari Passu Debt shall select the Exchange Debenture Pari Passu Debt to any Asset Sale (as hereinafter defined)be purchased on a pro rata basis, an based on the aggregate principal amount equal to: (1) cash payments received by Borrower or any of its Subsidiaries from such Asset Sale, minus (2) any bona fide direct costs and expenses incurred thereof surrendered in connection with such Asset Sale to the extent paid or payable to non-Affiliates, including (x) income or gains taxes payable or reasonably estimated to be payable by the seller as a result of any gain recognized in connection with such Asset Sale during the tax period the sale occurs, (y) payment of the obligations (other than the Loans) secured by a Lien on the assets in question, which is required to be repaid under the terms thereof as a result of such Asset Sale, and (z) a reasonable reserve for any adjustments in respect to sale price of such assets and any indemnification payments (fixed or contingent) attributable to seller’s indemnities and representations and warranties to purchaser in respect Offer. Upon completion of such Asset Sale undertaken by Borrower or any of its Subsidiaries in connection with such Asset Sale; provided that upon release of any such reserveOffer, the amount released of Excess Proceeds shall be considered Net Asset Sale Proceeds). “Asset Sale” means a sale, lease or sublease (as lessor or sublessor), sale and leaseback, assignment, conveyance, transfer, license or other disposition to, or any exchange of property with, any Person (other than to or with a Credit Party), in one transaction or a series of transactions, of all or any part of any Credit Party’s businesses, assets or properties of any kind, whether real, personal, or mixed and whether tangible or intangible, whether now owned or hereafter acquired, leased or licensed, including, without limitation, the capital stock of any Credit Party, other than inventory or other assets sold or leased, or cash or cash equivalents disposed of, in each case, in the ordinary course of business. For purposes of clarification, “Asset Sale” shall (i) include (x) the sale or other disposition for value of any contracts or (y) the early termination or modification of any contract resulting in the receipt by any Credit Party of a cash payment or other consideration in exchange for such event (other than payments in the ordinary course of business for accrued and unpaid amounts due through the date of termination or modification) and (ii) exclude any taking or other disposition by means of power of eminent domain, condemnation or similar power, threat or rightreset at zero.
Appears in 1 contract
Sources: Indenture (Cumulus Media Inc)
Asset Sales. No later than the first business day following the date of receiptThe Company shall not, in any given month, by Borrower or and shall not permit any of its Restricted Subsidiaries to, directly or indirectly, consummate any Asset Sale, unless (i) the Company (or such Restricted Subsidiary, as the case may be) receives consideration at the time of any Net such Asset Sale at least equal to the fair market value (as determined in good faith by the Board of Directors (including as to the value of all noncash consideration) and set forth in an Officer's Certificate delivered to the Trustee) of the assets or Equity Interests issued or sold or otherwise disposed of and (ii) at least 75% of the consideration therefor is in the form of cash and/or Cash Equivalents or Telecommunications Assets, and (iii) the Net Cash Proceeds received by the Company (or such Restricted Subsidiary, as the case may be) from such Asset Sale are applied within 360 days following the receipt of such Net Cash Proceeds, to the extent the Company (or such Restricted Subsidiary, as the case may be) elects, (a) to the permanent redemption or repurchase of outstanding Indebtedness (other than Subordinated Indebtedness) that is secured Indebtedness (including that in the case of a revolver or similar arrangement that makes credit available, such commitment is so permanently reduced by such amount) or Indebtedness of the Company or such Restricted Subsidiary that ranks equally with the Notes but has a maturity date that is prior to the maturity date of the Notes and/or (b) to reinvest such Net Cash Proceeds (as hereinafter definedor any portion thereof) in excess Telecommunications Assets. Notwithstanding anything herein to the contrary, with respect to the reinvestment of Net Cash Proceeds, only proceeds from an Asset Sale of assets, or Equity Interests, of a Foreign Subsidiary may be used to retire Indebtedness of a Foreign Subsidiary or reinvest in assets or Equity Interests of a Foreign Subsidiary. The balance of such Net Cash Proceeds, after the application of such Net Cash Proceeds as described in the immediately preceding clauses (a) and (b), shall constitute "Excess Proceeds." When the aggregate amount of Budgeted Expenses Excess Proceeds equals or exceeds $15.0 million (as defined in Section 15(etaking into account income earned on such Excess Proceeds), the Company will be required to make a pro rata offer to all Holders of Notes and pari passu Indebtedness with comparable provisions requiring such Indebtedness to be purchased with the proceeds of such Asset Sale (an "Asset Sale Offer") hereof) as set forth to purchase the maximum principal amount (or accreted value in the most recent Budget (as defined case of Indebtedness issued with an original issue discount) of Notes and pari passu Indebtedness that may be purchased out of the Excess Proceeds, at a purchase price in Section 15(e)) required to be delivered pursuant to Section 15(e) hereof, Borrower shall prepay the Forbearance Period Advances as set forth in Section 3(i) hereof cash in an aggregate amount equal to such excess amount; provided, that (A) such Net Asset Sale Proceeds shall be deposited directly by the payee thereof into a deposit account held by Borrower at Amegy Bank, N.A. and (B) if, within 30 days of Borrower’s receipt of such Net Asset Sale Proceeds, Borrower has not paid one or more such Budgeted Expenses in an aggregate amount equal to 100% of the principal amount thereof or the accreted value thereof, as applicable, plus accrued and unpaid interest thereon to the date of such proceeds not otherwise required purchase (subject to prepay the Forbearance Period Advancesright of Holders of record on the relevant Record Date to receive interest due on the relevant Interest Payment Date), then Borrower shall prepay in accordance with the Forbearance Period Advances as procedures set forth in Section 3(i) hereof in Article 3 of this Indenture and the agreements governing such pari passu Indebtedness. To the extent that any Excess Proceeds remain after consummation of an amount equal to the amount not so paid. “Net Asset Sale Proceeds” meansOffer, with respect to the Company may use such Excess Proceeds for any Asset Sale (as hereinafter defined), an purpose not otherwise prohibited by this Indenture. If the aggregate principal amount equal to: (1) cash payments received by Borrower or any of its Subsidiaries from such Asset Sale, minus (2) any bona fide direct costs Notes and expenses incurred in connection with pari passu Indebtedness tendered into such Asset Sale Offer surrendered by Holders thereof exceeds the amount of Excess Proceeds, the Company shall select the Notes and pari passu Indebtedness to be purchased on a pro rata basis in proportion to the extent paid respective principal amounts (or payable to non-Affiliatesaccreted values in the case of Indebtedness issued with an original issue discount) of the Notes and such other Indebtedness. Upon completion of such Asset Sale Offer, including the amount of Excess Proceeds shall be reset at zero for purposes of the first sentence of this paragraph. The amount of (x) income any liabilities (as shown on the Company's (or gains taxes payable such Restricted Subsidiary's, as the case may be) most recent balance sheet), other than Subordinated Indebtedness of the Company or reasonably estimated to be payable any Restricted Subsidiary that are assumed by the seller as a result transferee of any gain recognized such assets pursuant to an agreement that immediately releases the Company and all of its Restricted Subsidiaries from all liability in connection with such Asset Sale during the tax period the sale occursrespect thereof, (y) payment Indebtedness of the obligations (other than the Loans) secured by any Restricted Subsidiary that is no longer a Lien on the assets in question, which is required to be repaid under the terms thereof Restricted Subsidiary as a result of such Asset Sale, if the Company and all of its Restricted Subsidiaries are immediately released from all Guarantees of payment of such Indebtedness and such Indebtedness is no longer the liability of the Company or any of its Restricted Subsidiaries, and (z) a reasonable reserve any securities, notes or other obligations received by the Company (or such Restricted Subsidiary, as the case may be) from such transferee that are contemporaneously (subject to ordinary settlement periods) converted by the Company (or such Restricted Subsidiary, as the case may be) into cash and/or Cash Equivalents (to the extent of the cash and/or Cash Equivalents received), will be deemed to be cash and/or Cash Equivalents for purposes of this provision. To the extent that the provisions of any adjustments in respect to sale price of such assets and any indemnification payments (fixed securities laws or contingent) attributable to seller’s indemnities and representations and warranties to purchaser in respect of such regulations shall conflict with the Asset Sale undertaken by Borrower or any provisions of its Subsidiaries in connection with such Asset Sale; provided that upon release of any such reservethis Indenture, the amount released Company shall comply with the applicable securities laws and regulations and shall not be considered Net deemed to have breached its obligations under the Asset Sale Proceeds). “Asset Sale” means a sale, lease or sublease (as lessor or sublessor), sale and leaseback, assignment, conveyance, transfer, license or other disposition to, or any exchange provisions of property with, any Person (other than to or with a Credit Party), in one transaction or a series of transactions, of all or any part of any Credit Party’s businesses, assets or properties of any kind, whether real, personal, or mixed and whether tangible or intangible, whether now owned or hereafter acquired, leased or licensed, including, without limitation, the capital stock of any Credit Party, other than inventory or other assets sold or leased, or cash or cash equivalents disposed of, in each case, in the ordinary course of business. For purposes of clarification, “Asset Sale” shall (i) include (x) the sale or other disposition for value of any contracts or (y) the early termination or modification of any contract resulting in the receipt this Indenture by any Credit Party of a cash payment or other consideration in exchange for such event (other than payments in the ordinary course of business for accrued and unpaid amounts due through the date of termination or modification) and (ii) exclude any taking or other disposition by means of power of eminent domain, condemnation or similar power, threat or rightvirtue thereof.
Appears in 1 contract
Asset Sales. No later than the first business day following the date of receipt(a) The Company will not, in any given month, by Borrower or and will not permit any of its Restricted Subsidiaries to, consummate an Asset Sale (including a Collateral Disposition) unless:
(1) the Fair Market Value is determined by the Company’s Board of Directors and evidenced by a resolution of the Board of Directors set forth in an Officers’ Certificate delivered to the trustee;
(2) the Company (or the Restricted Subsidiary, as the case may be) receives consideration at the time of the Asset Sale at least equal to the Fair Market Value of the assets or Equity Interests issued or sold or otherwise disposed of;
(3) at least 75% of the consideration received by the company or such restricted subsidiary from all asset sales since the issue date, in the aggregate, is in the form of cash; and
(4) in the case of a Collateral Disposition, the Second Lien Agent is granted a perfected Lien (subject only to Permitted Collateral Liens) in all assets or property received by the Company or any Restricted Subsidiary as consideration therefor (or, with respect to cash, the portion of such cash that constitutes Net Proceeds) as additional Collateral under the Security Documents to secure the Second Lien Obligations, and, in the case of cash constituting Net Proceeds, such cash must be deposited into a segregated account under the control of the First Lien Agent and the Collateral Agent that includes only proceeds from the Collateral Disposition and interest earned thereon (a “Collateral Disposition Proceeds Account”), which proceeds shall be subject to release from the Collateral Disposition Proceeds Account for the uses described below in this covenant as provided for in the Security Documents. Except with respect to a Collateral Disposition, for purposes of this provision, each of the following will be deemed to be cash:
(1) any liabilities, as shown on the Company’s or such Restricted Subsidiary’s most recent balance sheet, of the Company or any Restricted Subsidiary (other than contingent liabilities and liabilities that are by their terms subordinated to the notes or any 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
(2) any securities, notes or other obligations received by the Company or any such Restricted Subsidiary from such transferee that are converted within 90 days by the Company or such Restricted Subsidiary into cash, to the extent of the cash received in that conversion.
(b) Within 360 days after the receipt of any Net Proceeds from an Asset Sale, the Company or any such Restricted Subsidiary may apply those Net Proceeds at its option to any combination of the following:
(1) to repay, redeem or repurchase Indebtedness constituting First Lien Claims under a Credit Facility and other pari passu Indebtedness secured by a Lien permitted under the Second Lien Notes Indenture; provided that if such Indebtedness is revolving credit Indebtedness, to correspondingly reduce commitments with respect thereto as specified in Section 4.09 hereof;
(2) to acquire all or substantially all of the properties or assets of one or more other Persons primarily engaged in the Oil and Gas Business, and, for this purpose, a division or line of business of a Person shall be treated as a separate Person so long as such properties and assets are acquired by the Company or a Restricted Subsidiary;
(3) to acquire a majority of the Voting Stock of one or more other Persons primarily engaged in the Oil and Gas Business, if after giving effect to any such acquisition of Voting Stock, such Person is or becomes a Restricted Subsidiary;
(4) to make one or more capital expenditures; or
(5) to acquire other long-term assets that are used or useful in the Oil and Gas Business; provided, that if the Net Proceeds are from a Collateral Disposition, the property, assets, Voting Stock or capital expenditures referred to in clauses (2), (3), (4) and (5) shall be of a type substantially similar to such items constituting Collateral. Pending the final application of any Net Proceeds (other than Net Proceeds held in the Collateral Disposition Proceeds Account), the Company or any such Restricted Subsidiary may temporarily reduce revolving credit borrowings or otherwise invest the Net Proceeds in any manner that is not prohibited by this Indenture.
(c) Any Net Proceeds from Asset Sales that are not applied or invested as provided in Section 4.10(b) hereof will constitute “Excess Proceeds.” On the 361st day after the Asset Sale Proceeds (as hereinafter defined) in excess of or, at the Company’s option, any earlier date), if the aggregate amount of Budgeted Expenses Excess Proceeds (as defined including Net Proceeds held in Section 15(ethe Collateral Disposition Proceeds Account) hereof) as then exceeds $15.0 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 most recent Budget (as defined proceeds of sales of assets, to purchase the maximum principal amount of Notes and such other pari passu Indebtedness that may be purchased out of the Excess Proceeds. The offer price in Section 15(e)) required to be delivered pursuant to Section 15(e) hereof, Borrower shall prepay the Forbearance Period Advances as set forth in Section 3(i) hereof in an aggregate amount equal to such excess amount; provided, that (A) such Net any Asset Sale Proceeds shall Offer will be deposited directly by the payee thereof into a deposit account held by Borrower at Amegy Bank, N.A. and (B) if, within 30 days of Borrower’s receipt of such Net Asset Sale Proceeds, Borrower has not paid one or more such Budgeted Expenses in an aggregate amount equal to 100% of principal amount plus accrued and unpaid interest, if any, to the date of settlement, subject to the right of Holders of record on the relevant record date to receive interest due on an interest payment date that is on or prior to the date of settlement, and will be payable in cash. If any Excess Proceeds remain after 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 Indebtedness ranking pari passu with the Notes tendered into such Asset Sale Offer exceeds the amount of Excess Proceeds, the trustee will select the Notes and such proceeds not otherwise required other pari passu Indebtedness to prepay the Forbearance Period Advances, then Borrower shall prepay the Forbearance Period Advances as set forth in Section 3(i) hereof in an amount equal to the amount not so paidbe purchased on a pro rata basis. “Net Upon completion of each Asset Sale Proceeds” means, with respect to any Asset Sale (as hereinafter defined), an amount equal to: (1) cash payments received by Borrower or any of its Subsidiaries from such Asset Sale, minus (2) any bona fide direct costs and expenses incurred in connection with such Asset Sale to the extent paid or payable to non-Affiliates, including (x) income or gains taxes payable or reasonably estimated to be payable by the seller as a result of any gain recognized in connection with such Asset Sale during the tax period the sale occurs, (y) payment of the obligations (other than the Loans) secured by a Lien on the assets in question, which is required to be repaid under the terms thereof as a result of such Asset Sale, and (z) a reasonable reserve for any adjustments in respect to sale price of such assets and any indemnification payments (fixed or contingent) attributable to seller’s indemnities and representations and warranties to purchaser in respect of such Asset Sale undertaken by Borrower or any of its Subsidiaries in connection with such Asset Sale; provided that upon release of any such reserveOffer, the amount released shall of Excess Proceeds will be considered Net Asset Sale Proceeds). “Asset Sale” means a sale, lease or sublease reset at zero.
(d) Section 4.12 (Liens) of the Original Indenture is hereby amended to read in its entirety as lessor or sublessor), sale and leaseback, assignment, conveyance, transfer, license or other disposition to, or any exchange of property with, any Person (other than to or with a Credit Party), in one transaction or a series of transactions, of all or any part of any Credit Party’s businesses, assets or properties of any kind, whether real, personal, or mixed and whether tangible or intangible, whether now owned or hereafter acquired, leased or licensed, including, without limitation, the capital stock of any Credit Party, other than inventory or other assets sold or leased, or cash or cash equivalents disposed of, in each case, in the ordinary course of business. For purposes of clarification, “Asset Sale” shall (i) include (x) the sale or other disposition for value of any contracts or (y) the early termination or modification of any contract resulting in the receipt by any Credit Party of a cash payment or other consideration in exchange for such event (other than payments in the ordinary course of business for accrued and unpaid amounts due through the date of termination or modification) and (ii) exclude any taking or other disposition by means of power of eminent domain, condemnation or similar power, threat or right.follows:
Appears in 1 contract
Sources: First Supplemental Indenture (Energy Xxi (Bermuda) LTD)
Asset Sales. No later than (a) The Company will not, and will not cause or permit any Restricted Subsidiary to, consummate any Asset Sale unless (i) the first business day following Company or such Restricted Subsidiary, as the case may be, receives consideration at the time of such Asset Sale at least equal to the Fair Market Value of the assets and property subject to such Asset Sale (such Fair Market Value to be determined on the date of receiptcontractually agreeing to effect such Asset Sale) and (ii) (A) at least 75% of the consideration paid to the Company or such Restricted Subsidiary from such Asset Sale and all other Asset Sales since the Issue Date, on a cumulative basis, is in the form of cash, Cash Equivalents, Liquid Securities, Exchanged Properties (including pursuant to Asset Swaps) or the assumption by the acquiring Person of Indebtedness or other liabilities of the Company or a Restricted Subsidiary (other than liabilities of the Company or a Restricted Subsidiary that are by their terms subordinated to the Notes) as a result of which the Company and the remaining Restricted Subsidiaries are no longer liable for such liabilities (or in lieu of such absence of liability, the acquiring Person or its parent company agrees to indemnify and hold the Company or such Restricted Subsidiary harmless from and against any loss, liability or cost in respect of such assumed liabilities accompanied by the posting of a letter of credit (issued by a commercial bank that has an Investment Grade Rating) in favor of the Company or such Restricted Subsidiary for the full amount of such liabilities and for so long as such liabilities remain outstanding unless such indemnifying party (or its long term debt securities) shall have an Investment Grade Rating (with no indication of a negative outlook or credit watch with negative implications, in any given monthcase, that contemplates such indemnifying party (or its long term debt securities) failing to have an Investment Grade Rating) at the time the indemnity is entered into) (“Permitted Consideration”) or (B) the Fair Market Value of all forms of such consideration other than Permitted Consideration since the Issue Date does not exceed in the aggregate 5% of the Adjusted Consolidated Net Tangible Assets of the Company determined at the time such Asset Sale is made.
(b) During the 365 days after the receipt by Borrower the Company or a Restricted Subsidiary of Net Available Cash from an Asset Sale, such Net Available Cash may be applied by the Company or such Restricted Subsidiary, to the extent the Company or such Restricted Subsidiary elects (or is required by the terms of any Pari Passu Indebtedness of the Company or a Restricted Subsidiary), to:
(1) repay (or cash-collateralize) Indebtedness of the Company or any Restricted Subsidiary under any Credit Facility (excluding (i) any Subordinated Indebtedness and (ii) any Indebtedness owed to the Company or an Affiliate of its Subsidiaries the Company);
(2) reinvest in Additional Assets (including by means of an Investment in Additional Assets by the Company or a Restricted Subsidiary with Net Available Cash received by the Company or another Restricted Subsidiary) or make capital expenditures in the Oil and Gas Business;
(3) purchase Notes;
(4) purchase or repay on a permanent basis other Indebtedness (excluding (i) any Subordinated Indebtedness and (ii) any Notes or other Indebtedness owed to the Company or an Affiliate of the Company); provided that the Company shall equally and ratably redeem or purchase Notes as described 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 (in accordance with the procedures set forth below for a Prepayment Offer) to all Holders to purchase the Notes at 100% of the principal amount thereof, plus the amount of accrued but unpaid interest, if any, on the amount of Notes that would otherwise be prepaid; or
(5) make any combination of payment, repayment, investment or reinvestment permitted by the foregoing clauses (1) through (4). The requirement of clause (b)(2) above shall be deemed to be satisfied if an agreement (including a lease, whether a capital lease or an operating lease) committing to make the acquisitions or investment referred to therein is entered into by the Company or any Restricted Subsidiary within the time period specified in this Section 4.11(b) and such Net Available Cash is subsequently applied in accordance with such agreement within six months following such agreement. Pending the final application of any such Net Available Cash, the Company may temporarily reduce Indebtedness under any Credit Facility or otherwise expend or invest such Net Available Cash in any manner that is not prohibited by this Indenture
(c) Any Net Available Cash from an Asset Sale Proceeds (as hereinafter definednot applied in accordance with Section 4.11(b) in excess above within 365 days from the date of such Asset Sale shall constitute “Excess Proceeds.” When the aggregate amount of Budgeted Expenses (as defined in Section 15(e) hereof) as set forth in Excess Proceeds exceeds $25.0 million, the most recent Budget (as defined in Section 15(e)) Company will be required to be delivered pursuant make an offer to Section 15(e) hereof, Borrower shall prepay the Forbearance Period Advances as set forth in Section 3(i) hereof in purchase Notes having an aggregate principal amount equal to such excess amount; provided, that (A) such Net Asset Sale Proceeds shall be deposited directly by the payee thereof into a deposit account held by Borrower at Amegy Bank, N.A. and (B) if, within 30 days of Borrower’s receipt of such Net Asset Sale Proceeds, Borrower has not paid one or more such Budgeted Expenses in an aggregate amount of Excess Proceeds (the “Prepayment Offer”) at a purchase price (the “Prepayment Offer Price”) equal to 100% of the principal amount of such proceeds not otherwise required Notes plus accrued and unpaid interest, if any, to prepay the Forbearance Period Advances, then Borrower shall prepay Asset Sale Purchase Date (as defined in Section 4.11(d)) (subject to the Forbearance Period Advances as rights of Holders of record on relevant record dates to receive interest due on the relevant interest payment date) in accordance with the procedures (including prorating in the event of over subscription) set forth in Section 3(ithis Indenture, but, if the terms of any Pari Passu Indebtedness require that a Pari Passu Offer be made contemporaneously with the Prepayment Offer, then the Excess Proceeds shall be prorated between the Prepayment Offer and such Pari Passu Offer in accordance with the aggregate outstanding principal amounts of the Notes and such Pari Passu Indebtedness (based on principal amounts of Notes and Pari Passu Indebtedness (or, in the case of Pari Passu Indebtedness issued with significant original issue discount, based on the accreted value thereof) hereof in an tendered), and the aggregate principal amount equal of Notes to be purchased pursuant to the Prepayment Offer shall be reduced accordingly. If the aggregate principal amount not so paidof Notes tendered by Holders thereof exceeds the amount of Excess Proceeds available for purchase of Notes, then such amount of Excess Proceeds will be allocated pro rata according to the principal amount of the Notes tendered and the Trustee will select the Notes to be purchased in accordance with this Indenture on a pro rata basis (or, in the case of Global Notes, on as nearly a pro rata basis as is practicable, subject to the procedures of DTC or any other Depositary), by lot or in accordance with any other method the Trustee considers fair and reasonable and in minimum principal amount of $2,000 and integral multiples of $1,000 in excess of $2,000. “Net Asset Sale Proceeds” meansTo the extent that any portion of the amount of Excess Proceeds remains after compliance with the second sentence of this Section 4.11(c) and provided that all Holders have been given the opportunity to tender their Notes for purchase as described in Section 4.11(d) in accordance with this Indenture, the Company or the Restricted Subsidiaries may use such remaining amount for purposes permitted by this Indenture and the amount of Excess Proceeds will be reset to zero. The Company may satisfy the foregoing obligation with respect to any Excess Proceeds by making a Prepayment Offer prior to the expiration of the relevant 365 day period or with respect to Excess Proceeds of $25.0 million or less.
(d) Within 30 days after the 365th day following the date of an Asset Sale (as hereinafter definedSale, the Company shall, if it is obligated to make a Prepayment Offer pursuant to Section 4.11(c), send a written Prepayment Offer notice, by first-class mail or otherwise in accordance with the procedures of DTC, to the Holders (the “Prepayment Offer Notice”), with a copy to the Trustee, accompanied by such information regarding the Company and its Subsidiaries as the Company believes will enable such Holders to make an amount equal to: informed decision with respect to the Prepayment Offer. The Prepayment Offer Notice will state, among other things:
(1) cash payments received by Borrower or any that the Company is offering to purchase Notes pursuant to the provisions of its Subsidiaries from such Asset Sale, minus this Indenture;
(2) that any bona fide direct costs Note (or any portion thereof) accepted for payment (and expenses incurred duly paid on the Asset Sale Purchase Date) pursuant to the Prepayment Offer shall cease to accrue interest on the Asset Sale Purchase Date;
(3) that any Notes (or portions thereof) not properly tendered will continue to accrue interest;
(4) the purchase price and purchase date, which shall be, subject to any contrary requirements of applicable law, no less than 30 days nor more than 60 days after the date the Prepayment Offer Notice is mailed (the “Asset Sale Purchase Date”);
(5) the amount of Excess Proceeds available to purchase Notes;
(6) a description of the procedure which Holders must follow in order to tender their Notes and the procedures that Holders must follow in order to withdraw an election to tender their Notes for payment; and
(7) all other instructions and materials necessary to enable Holders to tender Notes pursuant to the Prepayment Offer. If any of the Notes subject to a Prepayment Offer is in the form of a Global Note, then the Company shall modify such notice to the extent necessary to accord with the procedures of the Depositary applicable to repurchases.
(e) The Company will comply, to the extent applicable, with the requirements of Rule 14e-1 under the Exchange Act and any other securities laws or regulations thereunder to the extent such laws and regulations are applicable in connection with the purchase of Notes as described above. To the extent that the provisions of any securities laws or regulations conflict with the provisions relating to the Prepayment Offer, the Company shall comply with the applicable securities laws and regulations and shall not be deemed to have breached its obligations under this Section 4.11 by virtue thereof.
(f) Holders electing to have Notes purchased hereunder will be required to surrender such Notes at the address specified in the notice prior to the close of business on the third Business Day prior to the Asset Sale Purchase Date. Holders will be entitled to withdraw their election to have their Notes purchased pursuant to this Section 4.11 if the Company receives, not later than one Business Day prior to the extent paid or payable to non-Affiliates, including (x) income or gains taxes payable or reasonably estimated to be payable by the seller as a result of any gain recognized in connection with such Asset Sale during Purchase Date, a telegram, telex, facsimile transmission or letter specifying, as applicable:
(1) the tax period the sale occurs, (y) payment name of the obligations Holder,
(other than 2) the Loans) secured by a Lien on certificate number of the assets in question, which is required to be repaid under the terms thereof as a result of such Asset Sale, and (z) a reasonable reserve for any adjustments in respect to sale price of such assets and any indemnification payments (fixed or contingent) attributable to seller’s indemnities and representations and warranties to purchaser Note in respect of which such Asset Sale undertaken by Borrower or any notice of its Subsidiaries in connection with such Asset Sale; provided that upon release withdrawal is being submitted,
(3) the principal amount of any such reserve, the amount released Note (which shall be considered Net Asset Sale Proceeds). “Asset Sale” means $2,000 or whole multiples of $1,000 in excess thereof) delivered for purchase by the Holder as to which his election is to be withdrawn,
(4) a salestatement that such Holder is withdrawing his election to have such principal amount of such Note purchased, lease or sublease and
(as lessor or sublessor)5) the principal amount, sale and leaseback, assignment, conveyance, transfer, license or other disposition to, or any exchange of property with, any Person (other than to or with a Credit Party), in one transaction or a series of transactionsif any, of all such Note (which shall be $2,000 or any part whole multiples of any Credit Party’s businesses, assets $1,000 in excess thereof) that remains subject to the original Prepayment Offer Notice and that has been or properties of any kind, whether real, personal, or mixed and whether tangible or intangible, whether now owned or hereafter acquired, leased or licensed, including, without limitation, will be delivered for purchase by the capital stock of any Credit Party, other than inventory or other assets sold or leased, or cash or cash equivalents disposed of, in each case, in the ordinary course of business. For purposes of clarification, “Asset Sale” Company.
(g) The Company shall (i) include (x) not later than the sale Asset Sale Purchase Date accept for payment Notes or other disposition for value of any contracts or (y) portions thereof tendered pursuant to the early termination or modification of any contract resulting in the receipt by any Credit Party of a cash payment or other consideration in exchange for such event (other than payments in the ordinary course of business for accrued and unpaid amounts due through the date of termination or modification) and Prepayment Offer, (ii) exclude not later than 12:30 p.m. (New York City time) on the Asset Sale Purchase Date deposit with the Trustee or with a Paying Agent an amount of money in same day funds sufficient to pay the aggregate Prepayment Offer Price, as the case may be, of all the Notes or portions thereof which are to be purchased on that date and (iii) not later than 12:30 p.m. (New York City time) on the Asset Sale Purchase Date, as the case may be, deliver to the Paying Agent an Officers’ Certificate stating the Notes or portions thereof accepted for payment by the Company. The Company shall publicly announce the results of the Prepayment Offer, as the case may be, on or as soon as practicable after the Asset Sale Purchase Date.
(h) Upon receipt by the Company of the proper tender of any taking Note (or other disposition portion thereof) accepted for purchase pursuant to Section 4.11(c), the Holder of the Note (or portion thereof) accepted for purchase pursuant to Section 4.11(c) in respect of which such proper tender was made and which has so been accepted for purchase shall (unless the tender of such Note (or portion thereof) accepted for purchase pursuant to Section 4.11(c) is properly withdrawn at least one Business Day prior to the Asset Sale Purchase Date) thereafter be entitled to receive solely the Prepayment Offer Price with respect to such Note (or portion thereof) accepted for purchase pursuant to Section 4.11(c). Notes to be purchased shall, on the Asset Sale Purchase Date, become due and payable at the Prepayment Offer Price and from and after such date (unless the Company shall default in the payment of the Prepayment Offer Price) such Notes shall cease to bear interest. Such Prepayment Offer Price shall be paid to such Holder promptly following the later of the Asset Sale Purchase Date and the time of delivery of such Note to the relevant Paying Agent at the office of such Paying Agent by means the Holder thereof in the manner required. Upon surrender of power any such Note for purchase in accordance with the foregoing provisions, such Note shall be paid by the Company at the Prepayment Offer Price; provided, however, that installments of eminent domaininterest whose Stated Maturity is on or prior to the Asset Sale Purchase Date shall be payable to the Person in whose name the Notes are registered as such as of the close of business on the relevant record dates according to the terms and the provisions of Section 2.04. If any Note tendered for purchase shall not be so paid upon surrender thereof by deposit of funds with the Trustee or a Paying Agent in accordance with paragraph (g) of this Section 4.11, condemnation the principal thereof (and premium, if any, thereon) shall, until paid, bear interest from the Asset Sale Purchase Date at the rate borne by such Note. Any Note that is to be purchased only in part shall be surrendered to a Paying Agent at the office of such Paying Agent (with, if the Company, the Registrar or similar powerthe Trustee so requires, threat due endorsement by, or righta written instrument of transfer in form satisfactory to the Company and the Registrar or the Trustee duly executed by, the Holder thereof or such Holder’s attorney duly authorized in writing), and the Company shall execute and the Trustee shall authenticate and deliver to the Holder of such Note, without service charge, one or more new Notes of any authorized denomination as requested by such Holder in an aggregate principal amount equal to, and in exchange for, the portion of the principal amount of the Note so surrendered that is not purchased. For all purposes of this Section 4.11, unless the context otherwise requires, all provisions relating to the purchase of Notes shall relate, in the case of any Notes purchased or to be purchased only in part, to the portion of the principal amount of such Notes which has been or is to be purchased. The Paying Agent (at the Company’s expense) shall promptly mail or deliver to the Holder thereof any Note or portion thereof not to be so purchased.
Appears in 1 contract
Sources: Indenture (Laredo Petroleum, Inc.)
Asset Sales. No later Holdco shall not, and shall not permit any of their Restricted Subsidiaries to, consummate an Asset Sale unless (a) Holdco or such Restricted Subsidiary, as the case may be, receives consideration at the time of such Asset Sale at least equal to the fair market value (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 (b) at least 75% of the consideration therefore received by the Company, Holdco or such Restricted Subsidiary is in the form of (i) cash or Cash Equivalents or (ii) property or assets that are used or useful in a Permitted Business, or the Capital Stock of any Person engaged in a Permitted Business if, as a result of the acquisition by Holdco or any Restricted Subsidiary thereof, such Person becomes a Restricted Subsidiary. For purposes of this Section 4.10 each of the following shall be deemed cash: (x) any liabilities (as shown on Holdco's or such Restricted Subsidiary's most recent balance sheet), of Holdco or any Restricted Subsidiary (other than contingent liabilities and liabilities that are by their terms subordinated to the first business day following Notes and the date Holdco Notes or any guarantee thereof) that are assumed by the transferee of receiptany such assets pursuant to a customary novation agreement that releases Holdco or such Restricted Subsidiary from further liability, in (y) any given monthsecurities, notes or other obligations received by Borrower Holdco or any such Restricted Subsidiary from such transferee that are converted by Holdco or such Restricted Subsidiary into cash or Cash Equivalents within 180 days of their receipt by Holdco or such Restricted Subsidiary, but only to the extent of the cash or Cash Equivalents received, and (z) any Designated Noncash Consideration received by Holdco 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 (z) that is at that time outstanding, not to exceed 15% 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); provided that the 75% limitation referred to in clause (b) above will not apply to any Asset Sale in which the cash or Cash Equivalents portion of the consideration received therefrom, determined in accordance with subclauses (x), (y) and (z) above, is equal to or greater than what the after-tax proceeds would have been had such Asset Sale complied with the aforementioned 75% limitation. Within 365 days after the receipt of any Net Proceeds from an Asset Sale, Holdco or such Restricted Subsidiary, as the case may be, shall apply such Net Proceeds, at its option (or to the extent Holdco or the Company is required to apply such Net Proceeds pursuant to the terms of the New Credit Facility or, as long as and to the extent the Notes are held by an Affiliate of Holdco, the Holdco Notes Indenture), to (a) (i) repay Indebtedness under the New Credit Facility, or (ii) repay or repurchase Pari Passu Indebtedness of the Company or any Guarantor, any Indebtedness of any Restricted Subsidiary of Holdco that is not a Guarantor and, so long as and to the extent the Notes are held by an Affiliate of Holdco, the Holdco Notes (but only to the extent required under the Holdco Note Indenture), as the case may be; provided that if the Company or any Guarantor shall so repay or purchase Pari Passu Indebtedness of the Company or such Guarantor, it will equally and ratably reduce Indebtedness under the Notes and the Note Guarantees if the Notes are then redeemable, or, if the Notes may not then be redeemed, the Company shall make an offer (in accordance with the procedures set forth below for an Asset Sale Offer) to all Holders of Notes to purchase at a purchase price equal to the Accreted Value of the Notes at the date of purchase, the Notes that would otherwise be redeemed, or (b) an investment in property, the making of a capital expenditure or the acquisition of assets that are used or useful in a Permitted Business, or the acquisition of Capital Stock of any Person primarily engaged in a Permitted Business if (i) as a result of the acquisition by Holdco or any Restricted Subsidiary thereof, such Person becomes a Restricted Subsidiary of Holdco or (ii) the Investment in such Capital Stock is permitted by clause (f) of the definition of Permitted Investments. Pending the final application of any such Net Proceeds, Holdco and its Restricted Subsidiaries may temporarily reduce Indebtedness or otherwise invest such Net Proceeds (in any manner that is not prohibited by this Indenture. Any Net Proceeds from Asset Sales that are not applied or invested as hereinafter defined) provided in excess the first sentence of this paragraph will be deemed to constitute "Excess Proceeds". When the aggregate amount of Budgeted Expenses (as defined Excess Proceeds exceeds $15.0 million and the Company has repaid in Section 15(e) hereof) as set forth in full all Obligations under the most recent Budget (as defined in Section 15(e)) New Credit Facility, the Company will be required to make an offer to all Holders of Notes (an "Asset Sale Offer") to purchase the maximum principal amount of Notes that may be delivered pursuant to Section 15(e) hereofpurchased out of the Excess Proceeds (taking into account, Borrower shall prepay if any of the Forbearance Period Advances as set forth Notes are held by an Affiliate of Holdco, the requirements of the Holdco Note Indenture), at an offer price in Section 3(i) hereof cash in an aggregate amount equal to such excess amount; provided, that (A) such Net Asset Sale Proceeds shall be deposited directly by the payee thereof into a deposit account held by Borrower at Amegy Bank, N.A. and (B) if, within 30 days of Borrower’s receipt of such Net Asset Sale Proceeds, Borrower has not paid one or more such Budgeted Expenses in an aggregate amount equal to 100% of the Accreted Value thereof at the date of purchase, in accordance with the procedures set forth in this Indenture. To the extent that any Excess Proceeds remain after consummation of an Asset Sale Offer, the Company may use such Excess Proceeds for any purpose not otherwise prohibited by this Indenture. If the aggregate principal amount of such proceeds not otherwise required Notes surrendered by Holders thereof in connection with an Asset Sale Offer exceeds the amount of Excess Proceeds, the Trustee shall select the Notes to prepay the Forbearance Period Advances, then Borrower shall prepay the Forbearance Period Advances be purchased as set forth in Section 3(i) hereof in an amount equal to the amount not so paidunder Sections 3.02 and 3.03 hereof. “Net Asset Sale Proceeds” means, with respect to any Asset Sale (as hereinafter defined), an amount equal to: (1) cash payments received by Borrower or any of its Subsidiaries from such Asset Sale, minus (2) any bona fide direct costs and expenses incurred in connection with such Asset Sale to the extent paid or payable to non-Affiliates, including (x) income or gains taxes payable or reasonably estimated to be payable by the seller as a result of any gain recognized in connection with such Asset Sale during the tax period the sale occurs, (y) payment of the obligations (other than the Loans) secured by a Lien on the assets in question, which is required to be repaid under the terms thereof as a result Upon completion of such Asset Sale, and (z) a reasonable reserve for any adjustments in respect offer to sale price of such assets and any indemnification payments (fixed or contingent) attributable to seller’s indemnities and representations and warranties to purchaser in respect of such Asset Sale undertaken by Borrower or any of its Subsidiaries in connection with such Asset Sale; provided that upon release of any such reservepurchase, the amount released of Excess Proceeds shall be considered Net Asset Sale Proceeds). “Asset Sale” means a sale, lease or sublease (as lessor or sublessor), sale and leaseback, assignment, conveyance, transfer, license or other disposition to, or any exchange of property with, any Person (other than to or with a Credit Party), in one transaction or a series of transactions, of all or any part of any Credit Party’s businesses, assets or properties of any kind, whether real, personal, or mixed and whether tangible or intangible, whether now owned or hereafter acquired, leased or licensed, including, without limitation, the capital stock of any Credit Party, other than inventory or other assets sold or leased, or cash or cash equivalents disposed of, in each case, in the ordinary course of business. For purposes of clarification, “Asset Sale” shall (i) include (x) the sale or other disposition for value of any contracts or (y) the early termination or modification of any contract resulting in the receipt by any Credit Party of a cash payment or other consideration in exchange for such event (other than payments in the ordinary course of business for accrued and unpaid amounts due through the date of termination or modification) and (ii) exclude any taking or other disposition by means of power of eminent domain, condemnation or similar power, threat or rightreset at zero.
Appears in 1 contract
Asset Sales. No later than the first business day following the date of receiptSubject to Section 4.3 hereof, in when any given month, by Borrower sells or any of its Subsidiaries otherwise disposes of any Net Asset Sale Proceeds Collateral (as hereinafter defined) in excess including any sale or other disposition of any FCC License (or the equity of the aggregate amount of Budgeted Expenses (as defined in Section 15(eentity that directly or indirectly holds any FCC License)) hereof) as set forth other than Inventory in the most recent Budget Ordinary Course of Business or licenses of Intellectual Property granted in the Ordinary Course of Business, Borrowers shall cause (as defined in Section 15(e)x) required to be delivered pursuant to Section 15(eone-hundred percent (100%) hereofof the net cash proceeds (i.e., Borrower shall prepay gross cash proceeds less the Forbearance Period Advances as set forth in Section 3(i) hereof in an aggregate amount equal to such excess amount; provided, that (A) such Net Asset Sale Proceeds shall be deposited directly by the payee thereof into a deposit account held by Borrower at Amegy Bank, N.A. and (B) if, within 30 days of Borrower’s receipt reasonable costs of such Net Asset Sale Proceeds, Borrower has not paid one sales or more such Budgeted Expenses in an aggregate amount equal to 100% of the amount of such proceeds not otherwise required to prepay the Forbearance Period Advances, then Borrower shall prepay the Forbearance Period Advances as set forth in Section 3(iother dispositions) hereof in an amount equal to the amount not so paid. “Net Asset Sale Proceeds” means, with respect to any Asset Sale (as hereinafter defined), an amount equal to: (1) cash payments received by Borrower or any of its Subsidiaries from such Asset Sale, minus (2) any bona fide direct costs and expenses incurred in connection with such Asset Sale to sale or disposition (other than a sale or disposition of the extent paid or payable to non-Affiliates, including (xMA Personal Property) income or gains taxes payable or reasonably estimated to be payable by the seller as a result of any gain recognized in connection with such Asset Sale during the tax period the sale occurs, and (y) payment fifty percent (50%) of the obligations (other than net proceeds of the Loans) secured by a Lien on sale of the assets in question, which is required to be repaid under the terms thereof as a result of such Asset Sale, and (z) a reasonable reserve for any adjustments in respect to sale price of such assets and any indemnification payments (fixed or contingent) attributable to seller’s indemnities and representations and warranties to purchaser in respect of such Asset Sale undertaken by Borrower or any of its Subsidiaries in connection with such Asset Sale; provided that upon release of any such reserve, the amount released shall be considered Net Asset Sale Proceeds). “Asset Sale” means a sale, lease or sublease (as lessor or sublessor), sale and leaseback, assignment, conveyance, transfer, license or other disposition to, or any exchange of property with, any Person (other than to or with a Credit Party), in one transaction or a series of transactions, of all or any part of any Credit Party’s businesses, assets or properties of any kind, whether real, personal, or mixed and whether tangible or intangible, whether now owned or hereafter acquired, leased or licensed, including, without limitation, the capital stock of any Credit Party, other than inventory or other assets sold or leased, or cash or cash equivalents disposed ofBorrowers’ MA Personal Property, in each case, to be applied to the outstanding principal installments of the Term Loan in the ordinary course inverse order of businessthe maturities thereof. For purposes The foregoing shall not be deemed to be implied consent to any such sale otherwise prohibited by the terms and conditions hereof. Each prepayment of clarificationthe Term Loan made pursuant to this Section 2.3(c)(i), “Asset Sale” other than from the proceeds of sale or other disposition of any FCC License (or the equity of the entity that directly or indirectly holds any FCC License), shall not require any Prepayment Premium. Each prepayment of the Term Loan made pursuant to this Section 2.3(c)(i) from the proceeds of sale or other disposition of any FCC License (ior the equity of the entity that directly or indirectly holds any FCC License) include shall be accompanied by any applicable Prepayment Premium. It is understood and agreed that (x) the sale or other disposition for value proceeds of any contracts or PNC Priority Collateral shall not be applied as provided above so long as PNC Obligations remain outstanding in compliance with the Intercreditor Agreement and such amounts are applied in accordance with the terms of the PNC Credit Agreement as in effect on the date hereof to reduce the PNC Obligations, (y) the early termination Term Loan Priority Collateral (including the Boston FCC License (or modification the equity of the entity that directly or indirectly holds any contract resulting in such Boston FCC License)) are not PNC Priority Collateral and the receipt by proceeds thereof shall be used to mandatorily prepay the Term Loan and not any loans or obligations under the PNC Credit Party of a cash payment or other consideration in exchange for such event (other than payments in the ordinary course of business for accrued and unpaid amounts due through the date of termination or modification) and (ii) exclude any taking or other disposition by means of power of eminent domain, condemnation or similar power, threat or rightAgreement.
Appears in 1 contract
Sources: Term Loan Credit and Security Agreement (EVINE Live Inc.)
Asset Sales. No later than the first business day five (5) Business Days following the date of receipt, in any given month, receipt by Parent Borrower or any of its Subsidiaries of any Net Asset Sale Proceeds (as hereinafter defined) in excess of the aggregate amount of Budgeted Expenses (as defined in Section 15(e) hereof) as set forth in the most recent Budget (as defined in Section 15(e)) required to be delivered pursuant to Section 15(e) hereofProceeds, Parent Borrower shall prepay the Forbearance Period Advances as set forth in Section 3(i) hereof Term Loans in an aggregate amount equal to such excess amountNet Asset Sale Proceeds; providedprovided that, that (A) so long as no Default or Event of Default shall have occurred and be continuing, upon delivery of a written notice to Administrative Agent, Parent Borrower shall have the option, directly or through one or more Subsidiaries, to invest such Net Asset Sale Proceeds shall be deposited directly by (the payee thereof into a deposit account held by “Asset Sale Reinvestment Amounts”) in long-term productive assets (excluding capital expenditures) of the general type used in the existing lines of business of Parent Borrower at Amegy Bank, N.A. and if such assets are purchased or constructed within one hundred eighty (B180) if, within 30 days of Borrower’s following receipt of such Net Asset Sale Proceeds; provided further that to the extent such Net Asset Sale Proceeds result from Collateral, Parent Borrower has not paid one or more will reinvest such Budgeted Expenses Net Asset Sale Proceeds in Collateral; provided 31 further, pending any such reinvestment such Asset Sale Reinvestment Amounts shall be held at all times prior to such reinvestment, in an aggregate amount equal escrow account in form and substance reasonably acceptable to 100% of Administrative Agent. In the amount event that the Asset Sale Reinvestment Amounts are not reinvested prior to the last day of such proceeds not otherwise required one hundred eighty (180) day period, Administrative Agent shall apply such Asset Sale Reinvestment Amounts to prepay the Forbearance Period Advances, then Borrower shall prepay the Forbearance Period Advances Obligations as set forth in Section 3(i) hereof 2.11(b); provided, that, notwithstanding the foregoing, in an amount equal no event shall Parent Borrower be entitled to the amount not so paid. “invest any such Net Asset Sale Proceeds” means, with respect to any Asset Sale (as hereinafter defined), an amount equal to: (1) cash payments received by Borrower or any of its Subsidiaries from such Asset Sale, minus (2) any bona fide direct costs and expenses incurred in connection with such Asset Sale to the extent paid or payable to non-Affiliates, including (x) income or gains taxes payable or reasonably estimated to be payable by the seller as a result Proceeds of any gain recognized in connection with such Asset Sale during Specified Divestiture pursuant to this Section 2.10(a) and, for the tax period the sale occursavoidance of doubt, (y) payment of the obligations (other than the Loans) secured by a Lien on the assets in question, which is required to be repaid under the terms thereof as a result of such Asset Sale, and (z) a reasonable reserve for any adjustments in respect to sale price of such assets and any indemnification payments (fixed or contingent) attributable to seller’s indemnities and representations and warranties to purchaser in respect of such Asset Sale undertaken by Borrower or any of its Subsidiaries in connection with such Asset Sale; provided that upon release of any such reserve, the amount released shall be considered no Net Asset Sale Proceeds). “Asset Sale” means a sale, lease or sublease (as lessor or sublessor), sale and leaseback, assignment, conveyance, transfer, license or other disposition to, or any exchange of property with, any Person (other than to or with a Credit Party), in one transaction or a series of transactions, of all or any part Proceeds of any Credit Party’s businesses, assets or properties of any kind, whether real, personal, or mixed and whether tangible or intangible, whether now owned or hereafter acquired, leased or licensed, including, without limitation, the capital stock of any Credit Party, other than inventory or other assets sold or leased, or cash or cash equivalents disposed of, in each case, in the ordinary course of business. For purposes of clarification, “Specified Divestiture shall constitute Asset Sale” shall (i) include (x) the sale or other disposition for value of any contracts or (y) the early termination or modification of any contract resulting in the receipt by any Credit Party of a cash payment or other consideration in exchange for such event (other than payments in the ordinary course of business for accrued and unpaid amounts due through the date of termination or modification) and (ii) exclude any taking or other disposition by means of power of eminent domain, condemnation or similar power, threat or rightSale Reinvestment Amounts.
Appears in 1 contract
Sources: Credit and Guaranty Agreement (RLJ Entertainment, Inc.)
Asset Sales. No later (a) The Company shall not, and shall not permit any of its Restricted Subsidiaries to cause or make an Asset Sale, unless (x) the 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, is in the form of Cash Equivalents; provided that the amount of the following shall be deemed to be Cash Equivalents for the purposes of this provision:
(i) any liabilities (as shown on the Company’s or such Restricted Subsidiary’s most recent balance sheet or in the notes thereto) of the Company or any Restricted Subsidiary (other than liabilities that are by their terms subordinated to the first business day following Notes) that are assumed by the date transferee of receipt, in any given month, such assets;
(ii) any notes or other obligations or other securities received by Borrower the Company or such Restricted Subsidiary from such transferee that are converted by the Company or such Restricted Subsidiary into Cash Equivalents within 180 days of the receipt thereof (to the extent of the Cash Equivalents received); and
(iii) any Designated Noncash Consideration received by the 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 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 the Net Proceeds of any Asset Sale, the Company or such Restricted Subsidiary may apply the Net Proceeds from such Asset Sale, at its option to:
(i) permanently reduce Obligations under the Credit Agreement (and, in the case of revolving Obligations, to temporarily reduce such Obligations) or other Senior Indebtedness or Pari Passu Indebtedness (provided that if the Company shall so reduce Obligations under Pari Passu Indebtedness, it will equally and ratably reduce Obligations under the Notes by making an offer (in accordance with the procedures set forth below for an Asset Sale Offer) to all Holders to purchase at a purchase price equal to 100% of the principal amount thereof, plus accrued and unpaid interest, if any, the pro rata principal amount of Notes) or Indebtedness of a Restricted Subsidiary, in each case other than Indebtedness owed to the Company or an Affiliate of the Company;
(ii) make an investment in any one or more businesses, capital expenditures or acquisitions of other assets in each case used or useful in a Similar Business, or set aside in respect of a project in connection therewith that has been commenced or for which a binding contractual commitment has been entered into; and/or
(iii) make an investment in properties or assets that replace the properties and assets that are the subject of such Asset Sale, or set aside in respect of a project in connection therewith that has been commenced or for which a binding contractual commitment has been entered into. Pending the final application of any such Net Proceeds, the Company or such Restricted Subsidiary may temporarily reduce Indebtedness under a revolving credit facility, if any, or otherwise invest such Net Proceeds (in Cash Equivalents or Investment Grade Securities. Any Net Proceeds from any Asset Sale that are not applied as hereinafter defined) provided and within the time period set forth in excess the first sentence of this paragraph will be deemed to constitute “Excess Proceeds.” When the aggregate amount of Budgeted Expenses Excess Proceeds exceeds $10.0 million, the Company shall make an offer to all Holders of Notes (as defined an “Asset Sale Offer”) to purchase the maximum principal amount of Notes that may be purchased out of the Excess Proceeds at an offer price in Section 15(e) hereof) as set forth in the most recent Budget (as defined in Section 15(e)) required to be delivered pursuant to Section 15(e) hereof, Borrower shall prepay the Forbearance Period Advances as set forth in Section 3(i) hereof cash in an aggregate amount equal to such excess amount; provided, that (A) such Net Asset Sale Proceeds shall be deposited directly by the payee thereof into a deposit account held by Borrower at Amegy Bank, N.A. and (B) if, within 30 days of Borrower’s receipt of such Net Asset Sale Proceeds, Borrower has not paid one or more such Budgeted Expenses in an aggregate amount equal to 100% of the principal amount thereof, plus accrued and unpaid interest, if any, to but not including the date fixed for the closing of such proceeds not otherwise required to prepay offer, in accordance with the Forbearance Period Advances, then Borrower shall prepay the Forbearance Period Advances as procedures set forth in Section 3(i) hereof in this Indenture. The Company will commence an amount equal to the amount not so paid. “Net Asset Sale Proceeds” means, Offer with respect to any Excess Proceeds within ten Business Days after the date that Excess Proceeds exceed $10.0 million by mailing the notice required pursuant to the terms of this Indenture, with a copy to the Trustee. To the extent that the aggregate amount of Notes tendered pursuant to an Asset Sale Offer is less than the Excess Proceeds, the Company may use any remaining Excess Proceeds for general corporate purposes. If the aggregate principal amount of Notes surrendered by Holders thereof exceeds the amount of Excess Proceeds, the Trustee shall select the Notes to be purchased pursuant to Section 4.06(c)(3). Upon completion of any such Asset Sale Offer, the amount of Excess Proceeds shall be reset at zero.
(as hereinafter defined), an amount equal to: c) (1) cash payments received by Borrower or Promptly, and in any of its Subsidiaries from such Asset Sale, minus (2) any bona fide direct costs and expenses incurred in connection with such event within ten Business Days after the Company becomes obligated to make an Asset Sale Offer, the Company shall deliver to the extent paid 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 payable in part (subject to non-Affiliatesprorating pursuant to Section 4.06(c)(3)), including (x) income or gains taxes payable or reasonably estimated 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 payable by purchased in part only, any notice of purchase that relates to such Note shall state the seller as a result of any gain recognized in connection with such Asset Sale during the tax period the sale occurs, (y) payment portion of the obligations (other than the Loans) secured by a Lien on the assets in question, which principal amount thereof that has been or is required to be repaid under the terms thereof as a result of such Asset Sale, and (z) a reasonable reserve for any adjustments in respect to sale price of such assets and any indemnification payments (fixed or contingent) attributable to seller’s indemnities and representations and warranties to purchaser in respect of such Asset Sale undertaken by Borrower or any of its Subsidiaries in connection with such Asset Sale; provided that upon release of any such reserve, the amount released shall be considered Net Asset Sale Proceeds). “Asset Sale” means a sale, lease or sublease (as lessor or sublessor), sale and leaseback, assignment, conveyance, transfer, license or other disposition to, or any exchange of property with, any Person (other than to or with a Credit Party), in one transaction or a series of transactions, of all or any part of any Credit Party’s businesses, assets or properties of any kind, whether real, personal, or mixed and whether tangible or intangible, whether now owned or hereafter acquired, leased or licensed, including, without limitation, the capital stock of any Credit Party, other than inventory or other assets sold or leased, or cash or cash equivalents disposed of, in each case, in the ordinary course of business. For purposes of clarification, “Asset Sale” shall (i) include (x) the sale or other disposition for value of any contracts or (y) the early termination or modification of any contract resulting in the receipt by any Credit Party of a cash payment or other consideration in exchange for such event (other than payments in the ordinary course of business for accrued and unpaid amounts due through the date of termination or modification) and (ii) exclude any taking or other disposition by means of power of eminent domain, condemnation or similar power, threat or rightpurchased.
Appears in 1 contract
Asset Sales. No The Company shall not, and shall not permit any of its Restricted Subsidiaries to, engage in an Asset Sale unless (i) the Company (or the Restricted Subsidiary, as the case may be) receives consideration at the time of such Asset Sale at least equal to the fair market value (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 (ii) at least 75% of the consideration therefor received by the Company or such Restricted Subsidiary is in the form of cash and/or Marketable Securities; PROVIDED that the amount of (x) any liabilities (as shown on the Company's or such Restricted Subsidiary's most recent balance sheet or in the notes thereto), of the Company or any Restricted Subsidiary (other than liabilities that are by their terms subordinated to the Notes or any guarantee thereof) that are assumed by the transferee of any such assets and (y) any notes or other obligations received by the Company or any such Restricted Subsidiary from such transferee that are immediately converted by the Company or such Restricted Subsidiary into 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 therefor is equal to or greater than the after-tax net cash proceeds that would 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, as certified in an Officers' Certificate. Within 367 days after the receipt of any Net Proceeds from an Asset Sale, the Company or any Restricted Subsidiary may apply such Net Proceeds (a) to permanently reduce long-term Indebtedness of a Restricted Subsidiary that is not a Guaranteeing Subsidiary, (b) to permanently reduce Senior Debt (and, in the case of revolving Indebtedness, to 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 under the New Credit Facility by an amount equal to 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 accordance with clause (a), (b) or (d) of this sentence not later than the first business day following last to occur of (i) 367 days after the date original receipt of receiptsuch 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 any given montheach case, in a line of business permitted by Borrower Section 4.17 hereof. Any Net Proceeds from Asset Sales that are not applied or any invested as provided in the preceding sentence of its Subsidiaries of any Net Asset Sale Proceeds (as hereinafter defined) in excess of this paragraph shall be deemed to constitute, "Excess Proceeds." When the aggregate amount of Budgeted Expenses (as defined in Section 15(e) hereof) as set forth in Excess Proceeds exceeds $15.0 million, the most recent Budget (as defined in Section 15(e)) Company will be required to make an offer to all Holders of Notes (an "Asset Sale Offer") to purchase the maximum principal amount of Notes that may be delivered pursuant to Section 15(e) hereofpurchased out of the Excess Proceeds, Borrower shall prepay the Forbearance Period Advances as set forth at an offer price in Section 3(i) hereof cash in an aggregate amount equal to such excess amount; provided, that (A) such Net Asset Sale Proceeds shall be deposited directly by the payee thereof into a deposit account held by Borrower at Amegy Bank, N.A. and (B) if, within 30 days of Borrower’s receipt of such Net Asset Sale Proceeds, Borrower has not paid one or more such Budgeted Expenses in an aggregate amount equal to 100% of the principal amount thereof plus accrued and unpaid interest and Liquidated Damages, if any, thereon to the date of such proceeds not otherwise required to prepay purchase, in accordance with the Forbearance Period Advances, then Borrower shall prepay the Forbearance Period Advances as procedures set forth in Section 3(i) hereof in 3.09 hereof. To the extent that the aggregate amount of Notes tendered pursuant to an Asset Sale Offer is less than the Excess Proceeds, the Company or any Restricted Subsidiary may use any remaining Excess Proceeds for any purpose not prohibited under this Indenture. If the aggregate principal amount equal of Notes surrendered by Holders thereof exceeds the amount of Excess Proceeds, the Trustee shall select the Notes to be purchased on a pro rata basis. Upon completion of such Asset Sale Offer, the amount of Excess Proceeds shall be reset at zero. 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 amount not so paid. “Net Asset Sale Proceeds” means, with respect to any Asset Sale extent (as hereinafter defined), an amount equal to: (1i) cash payments at least 75% of the consideration received by Borrower or any of its Subsidiaries from such Asset Sale, minus (2) any bona fide direct costs and expenses incurred 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 extent paid or payable to non-Affiliates, including (x) income or gains taxes payable or reasonably estimated to be payable Trustee); PROVIDED that any Net Proceeds in the form of cash received by the seller as a result Company or any of any gain recognized its Restricted Subsidiaries in connection with such any Asset Sale during permitted to be consummated pursuant to this paragraph shall be subject to the tax period the sale occurs, (y) payment provisions of the obligations (other immediately preceding paragraph. An Asset Sale Offer shall be made pursuant to the provisions of Section 3.09 hereof. No later than the Loans) secured by a Lien on the assets in question, date which is required to be repaid under five (5) Business Days after the terms thereof as a result date on which the aggregate amount of such Asset SaleExcess Proceeds exceeds $15.0 million, and (z) a reasonable reserve for any adjustments in respect to sale price of such assets and any indemnification payments (fixed or contingent) attributable to seller’s indemnities and representations and warranties to purchaser in respect the Company shall notify the Trustee of such Asset Sale undertaken by Borrower Offer in accordance with Section 3.09 hereof and commence or any of its Subsidiaries in connection with cause to be commenced the Asset Sale Offer on a date no later than fifteen (15) Business Days after such notice (the "Commencement Date"). The Asset Sale; provided that upon release of any such reserve, the amount released Sale Offer shall be considered Net Asset Sale Proceeds). “Asset Sale” means a sale, lease or sublease (as lessor or sublessor), sale and leaseback, assignment, conveyance, transfer, license or other disposition to, or any exchange of property with, any Person (other than to or made by the Company in compliance with a Credit Party), in one transaction or a series of transactions, of all or any part of any Credit Party’s businesses, assets or properties of any kind, whether real, personal, or mixed and whether tangible or intangible, whether now owned or hereafter acquired, leased or licensedapplicable laws, including, without limitation, Rule 14e-1 under the capital stock of any Credit PartyExchange Act and the rules thereunder, to the extent applicable, and all other than inventory or other assets sold or leased, or cash or cash equivalents disposed of, in each case, in the ordinary course of business. For purposes of clarification, “Asset Sale” shall (i) include (x) the sale or other disposition for value of any contracts or (y) the early termination or modification of any contract resulting in the receipt by any Credit Party of a cash payment or other consideration in exchange for such event (other than payments in the ordinary course of business for accrued applicable federal and unpaid amounts due through the date of termination or modification) and (ii) exclude any taking or other disposition by means of power of eminent domain, condemnation or similar power, threat or rightstate securities laws.
Appears in 1 contract
Sources: Indenture (Advanced Medical Inc)
Asset Sales. No later than Together with each delivery of financial statements pursuant to Section 5.01(a) or 5.01(b), the first business day following Borrower shall deliver to the date of receipt, Administrative Agent a statement (a “Net Cash Proceeds Statement”) setting forth in any given month, by Borrower or any of its Subsidiaries of any Net Asset Sale Proceeds (as hereinafter defined) in excess of reasonable detail the aggregate amount of Budgeted Expenses Net Cash Proceeds received during the last fiscal quarter covered by such financial statements (the “Current Net Cash Proceeds”). If the aggregate amount of the Current Net Cash Proceeds when taken together with the aggregate amount of Net Cash Proceeds received after the Effective Date in prior fiscal quarters as defined in Section 15(e) hereof) to which a prepayment of the Indebtedness hereunder (as set forth in clause (A) below) or other permitted Indebtedness for borrowed money secured by Liens on the most recent Budget Collateral on a pari passu basis with the Liens securing the Obligations pursuant to clause (B) below has not yet been made under this paragraph (other than as defined a result of proceeds pending reinvestment or repayment of Maturing Indebtedness pursuant to the proviso hereto) shall exceed $500,000,000 in Section 15(e)the aggregate (such excess amount, the “Excess Disposition Proceeds”) then, not later than five Business Days after the delivery of the applicable Net Cash Proceeds Statement (or if such Net Cash Proceeds Statement shall not be delivered in conformity with the terms hereof, five Business Days after the date such Net Cash Proceeds Statement was required to be delivered pursuant to Section 15(e) hereofdelivered), the Borrower shall prepay the Forbearance Period Advances as set forth in Section 3(i) hereof in apply an aggregate amount equal to such excess amount; provided, that (A) such Net Asset Sale Proceeds shall be deposited directly by the payee thereof into a deposit account held by Borrower at Amegy Bank, N.A. and (B) if, within 30 days of Borrower’s receipt of such Net Asset Sale Proceeds, Borrower has not paid one or more such Budgeted Expenses in an aggregate amount equal to 100% of such Excess Disposition Proceeds towards the amount prepayment of such proceeds not otherwise required to prepay (A) the Forbearance Period Advances, then Borrower shall prepay the Forbearance Period Advances Loans as set forth in sub-clause (bb) of this paragraph (and/or provide cover for LC Exposure as specified in Section 3(i2.04(i)) hereof in an amount equal and (B) other permitted Indebtedness for borrowed money secured by Liens on the Collateral on a pari passu basis with the Liens securing the Obligations (but only to the amount not so paid. “Net Asset Sale Proceeds” means, with respect to any Asset Sale (as hereinafter defined), an amount equal to: extent required under the documentation
(1) cash payments received the Borrower states in the applicable Net Cash Proceeds Statement is to be reinvested (or has been reinvested) in any assets used or to be used by the Borrower or any of and its Restricted Subsidiaries from such Asset Salein its business, minus and (2) any bona fide direct costs are or have been or will be in fact so applied to such reinvestment within eighteen months of the related Asset Sale or Recovery Event or (y)
(1) the Borrower states in the applicable Net Cash Proceeds Statement is to be used to repay Maturing Indebtedness (or has been used to repay Maturing Indebtedness) and expenses incurred (2) are or have been or will be in connection with fact so applied to such repayment within 18 months of the related Asset Sale or Recovery Event. Notwithstanding the foregoing, if the Total Indebtedness Ratio as of the most recently delivered financial statements pursuant to Section 5.01(a) or 5.01(b), recomputed on a pro forma basis for such Asset Sale or Recovery Event, is less than 2.00 to 1.00, the extent paid or payable to non-Affiliates, including (x) income or gains taxes payable or reasonably estimated to be payable by the seller as a result of any gain recognized in connection with such Asset Sale during the tax period the sale occurs, (y) payment of the obligations (other than the Loans) secured by a Lien on the assets in question, which is required to be repaid under the terms thereof as a result of such Asset Sale, and (z) a reasonable reserve for any adjustments in respect to sale price of such assets and any indemnification payments (fixed or contingent) attributable to seller’s indemnities and representations and warranties to purchaser in respect proceeds of such Asset Sale undertaken by Borrower or any of its Subsidiaries in connection with such Asset Sale; provided that upon release of any such reserve, the amount released shall Recovery Event will not be considered Net Asset Sale Proceeds). “Asset Sale” means a sale, lease or sublease (as lessor or sublessor), sale and leaseback, assignment, conveyance, transfer, license or other disposition to, or any exchange of property with, any Person (other than subject to or with a Credit Party), in one transaction or a series of transactions, of all or any part of any Credit Party’s businesses, assets or properties of any kind, whether real, personal, or mixed and whether tangible or intangible, whether now owned or hereafter acquired, leased or licensed, including, without limitation, the capital stock of any Credit Party, other than inventory or other assets sold or leased, or cash or cash equivalents disposed of, in each case, included in the ordinary course calculation of business. For purposes of clarification, “Asset Sale” shall (i) include (x) the sale or other disposition for value of any contracts or amounts required to be prepaid pursuant to this sub-clause (y) the early termination or modification of any contract resulting in the receipt by any Credit Party of a cash payment or other consideration in exchange for such event (other than payments in the ordinary course of business for accrued and unpaid amounts due through the date of termination or modification) and (ii) exclude any taking or other disposition by means of power of eminent domain, condemnation or similar power, threat or right).
Appears in 1 contract
Sources: Amendment (SPRINT Corp)
Asset Sales. No later (a) The Company shall not, and shall not permit any of its Restricted Subsidiaries to, consummate an Asset Sale unless:
(i) except in the case of a disposition of Investments in Joint Ventures to the extent required by or made pursuant to customary buy/sell arrangements between the Joint Venture parties set forth in Joint Venture agreements or similar binding arrangements, the Company (or the Restricted Subsidiary, as the case may be) receives consideration at the time of such Asset Sale at least equal to the fair market value of the assets or Equity Interests issued or sold or otherwise disposed of;
(ii) such fair market value is determined in good faith by (a) an Officer of the General Partner if the value is less than $50.0 million, as evidenced by an Officers’ Certificate delivered to the first Trustee or (b) the Board of Directors of the General Partner if the value is $50.0 million or more, as evidenced by a Board Resolution of the General Partner; and
(iii) except in the case of a Permitted Asset Swap, at least 75% of the consideration therefor received by the Company or such Restricted Subsidiary is in the form of cash or Cash Equivalents or a combination thereof. For purposes of this provision, each of the following shall be deemed to be cash:
(A) any liabilities (as shown on the Company’s or such Restricted Subsidiary’s most recent balance sheet) of the Company or any Restricted Subsidiary (other than contingent liabilities and liabilities that are by their terms subordinated to the Notes or any 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 within 180 days after the Asset Sale converted by such Issuer or such Restricted Subsidiary into cash (to the extent of the cash received in that conversion); and
(C) accounts receivable of a business day retained by the Company or any Restricted Subsidiary, as the case may be, following the sale of such business, provided, that such accounts receivable are not (a) past due more than 90 days and (b) do not have a payment date greater than 120 days from the date of receipt, in any given month, by Borrower or any of its Subsidiaries the invoice creating such accounts receivable.
(b) Within 360 days after the receipt of any Net Proceeds from an Asset Sale (or within 90 days after such 360-day period in the event the Company enters into a binding commitment with respect to such application), the Company or a Restricted Subsidiary may apply such Net Proceeds at its option:
(i) to repay senior Indebtedness of the Company and/or its Restricted Subsidiaries under the Credit Facilities; and/or
(ii) to satisfy all mandatory repayment obligations under the Credit Facilities arising by reason of such Asset Sale;
(iii) to make a capital expenditure in a Permitted Business;
(iv) to acquire other tangible assets that are used or useful in a Permitted Business; or
(v) to acquire all or substantially all of the assets of a Person engaged in a Permitted Business or Equity Interests of a Person engaged in a Permitted Business so long as hereinafter definedsuch Person or the Person to which such assets are transferred is or becomes a Restricted Subsidiary. Pending the final application of any such Net Proceeds, the Company may temporarily reduce revolving credit borrowings or otherwise invest such Net Proceeds in any manner that is not prohibited by this Indenture.
(c) Any Net Proceeds from Asset Sales that are not applied or invested as provided in excess of Section 4.07(b) above will constitute “Excess Proceeds”. When the aggregate amount of Budgeted Expenses (as defined in Section 15(e) hereof) as Excess Proceeds exceeds $25.0 million, the Issuers will make an Asset Sale Offer to all Holders of Notes and, at the option of the Issuers, all holders of other Indebtedness that is pari passu with the Notes to purchase the maximum principal amount of Notes and such other pari passu Indebtedness that may be purchased out of the Excess Proceeds; provided that Notes tendered shall be given priority over any such other Indebtedness unless such other Indebtedness contains provisions similar to those set forth in this Indenture with respect to offers to purchase or redeem with the most recent Budget (as defined proceeds of sales of assets in Section 15(e)) required to which case the Notes and such other Indebtedness will be delivered pursuant to Section 15(e) hereof, Borrower shall prepay the Forbearance Period Advances as set forth purchased on a pro rata basis. The offer price in Section 3(i) hereof in an aggregate amount equal to such excess amount; provided, that (A) such Net any Asset Sale Proceeds shall Offer will be deposited directly by the payee thereof into a deposit account held by Borrower at Amegy Bank, N.A. and (B) if, within 30 days of Borrower’s receipt of such Net Asset Sale Proceeds, Borrower has not paid one or more such Budgeted Expenses in an aggregate amount equal to 100% of principal amount plus accrued and unpaid interest and Liquidated Damages, if any, to the amount Purchase Date, and will be payable in cash. If any Excess Proceeds remain after consummation of an Asset Sale Offer, the Company may use such proceeds Excess Proceeds for any purpose not otherwise required to prepay the Forbearance Period Advances, then Borrower shall prepay the Forbearance Period Advances as set forth in Section 3(i) hereof in an amount equal to the amount not so paid. “Net Asset Sale Proceeds” means, with respect to any Asset Sale (as hereinafter defined), an amount equal to: (1) cash payments received prohibited by Borrower or any of its Subsidiaries from such Asset Sale, minus (2) any bona fide direct costs and expenses incurred in connection with such Asset Sale to the extent paid or payable to non-Affiliates, including (x) income or gains taxes payable or reasonably estimated to be payable by the seller as a result of any gain recognized in connection with such Asset Sale during the tax period the sale occurs, (y) payment of the obligations (other than the Loans) secured by a Lien on the assets in question, which is required to be repaid under the terms thereof as a result of such Asset Sale, and (z) a reasonable reserve for any adjustments in respect to sale price of such assets and any indemnification payments (fixed or contingent) attributable to seller’s indemnities and representations and warranties to purchaser in respect of such Asset Sale undertaken by Borrower or any of its Subsidiaries in connection with such Asset Sale; provided that upon release of any such reserve, the amount released shall be considered Net Asset Sale Proceeds). “Asset Sale” means a sale, lease or sublease (as lessor or sublessor), sale and leaseback, assignment, conveyance, transfer, license or other disposition to, or any exchange of property with, any Person (other than to or with a Credit Party), in one transaction or a series of transactions, of all or any part of any Credit Party’s businesses, assets or properties of any kind, whether real, personal, or mixed and whether tangible or intangible, whether now owned or hereafter acquired, leased or licensedthis Indenture, including, without limitation, the capital stock repurchase or redemption of Indebtedness of the Issuers or any Credit Party, other than inventory or other assets sold or leased, or cash or cash equivalents disposed of, in each caseSubsidiary Guarantor that is subordinated to the Notes or, in the ordinary course of business. For purposes of clarification, “Asset Sale” shall (i) include (x) the sale or other disposition for value case of any contracts or Subsidiary Guarantor, the Guarantee of such Subsidiary Guarantor. If the aggregate principal amount of Notes tendered into such Asset Sale Offer exceeds the amount of Excess Proceeds allocated for repurchases of Notes pursuant to the Asset Sale Offer for Notes, the Trustee shall select the Notes to be purchased on a pro rata basis (yor, in the case of notes in global form, the Trustee shall select the Notes to be purchased based on the Depositary’s method that most nearly approximates a pro rata selection). Upon completion of each Asset Sale Offer, the amount of Excess Proceeds shall be reset at zero.
(d) The Company shall comply with the early termination or modification 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 contract resulting in securities laws or regulations conflict with Section 3.10 or this Section 4.07, the receipt Company shall comply with the applicable securities laws and regulations and shall not be deemed to have breached its obligations under Section 3.10 or this Section 4.07 by any Credit Party virtue of a cash payment or other consideration in exchange for such event (other than payments in the ordinary course of business for accrued and unpaid amounts due through the date of termination or modification) and (ii) exclude any taking or other disposition by means of power of eminent domain, condemnation or similar power, threat or rightconflict.
Appears in 1 contract
Sources: Second Supplemental Indenture (Penn Virginia Resource Partners L P)
Asset Sales. No later than TransMontaigne Partners will not, and will not permit any of its Restricted Subsidiaries to, consummate an Asset Sale unless:
(1) TransMontaigne Partners (or the first business day following 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 (such Fair Market Value to be determined on the date of receiptcontractual agreement to such Asset Sale by the parties thereto) and which shall give effect to the assumption by another Person of any liabilities as provided for in clause (2)(A) below; and
(2) at least 75% of the consideration received in the Asset Sale by TransMontaigne Partners or such Restricted Subsidiary, together with the consideration received in all other Asset Sales by TransMontaigne Partners or any given monthRestricted Subsidiary since the Issue Date (on a cumulative basis), is in the form of cash or Cash Equivalents. For purposes of this provision, each of the following shall be deemed to be cash:
(A) any liabilities, as shown on TransMontaigne Partners’ most recent consolidated balance sheet, of TransMontaigne Partners or any Restricted Subsidiary (other than contingent liabilities and liabilities that are by Borrower their terms subordinated to the Notes or any Note Guarantees) that are assumed by the transferee of any such assets pursuant to a novation agreement that releases TransMontaigne Partners or such Restricted Subsidiary from further liability;
(B) any securities, notes or other obligations received by TransMontaigne Partners or any such Restricted Subsidiary from such transferee that are within 180 days after the Asset Sale (subject to ordinary settlement periods), converted by TransMontaigne Partners or such Restricted Subsidiary into cash, to the extent of the cash received in that conversion;
(C) any Designated Non-cash Consideration received by TransMontaigne Partners or any of its Restricted Subsidiaries in such Asset Sale; provided that the aggregate Fair Market Value of such Designated Non-cash Consideration, taken together with the Fair Market Value at the time of receipt of all other Designated Non-cash Consideration received pursuant to this clause (C) is less than the greater of (x) $110.0 million and (y) 10.0% of Consolidated Net Tangible Assets at the time of the receipt of such Designated Non-cash Consideration (with the Fair Market Value of each item of Designated Non-cash Consideration being measured at the time received and without giving effect to subsequent changes in value);
(D) any Investment, stock or assets of the kind referred to in clauses (2) or (4) of the next succeeding paragraph; and
(E) accounts receivable of a business retained by TransMontaigne Partners or any of its Restricted Subsidiaries, as the case may be, following the sale of such business, provided such accounts receivable (i) are not past due more than 60 days and (ii) do not have a payment date greater than 90 days from the date of the invoices creating such accounts receivable. Within 365 days after the receipt of any Net Proceeds from an Asset Sale, TransMontaigne Partners (or the applicable Restricted Subsidiary, as the case may be) may apply such Net Proceeds:
(1) to repay, redeem or repurchase (through open market purchases or otherwise), Senior Indebtedness of TransMontaigne Partners and/or its Restricted Subsidiaries (or to make an offer to repurchase or redeem such Indebtedness, provided that such repurchase or redemption closes within 45 days after the end of such 365-day period);
(2) to make (a) an Investment in any one or more businesses; provided that such Investment in any business is in the form of the acquisition of Capital Stock that results in TransMontaigne Partners or any Restricted Subsidiary owning an amount of the Capital Stock of such business such that it constitutes a Restricted Subsidiary or is Capital Stock of a Restricted Subsidiary owned by a Person other than TransMontaigne Partners or a Subsidiary, (b) acquisitions by TransMontaigne Partners assets that replace, in whole or in part, the properties or assets that are the subject of such Asset Sale or (c) acquire all or substantially all of the assets of, or any Capital Stock of, another Permitted Business, to the extent not constituting an Investment, if, after giving effect to any such acquisition of Capital Stock, the Permitted Business is or becomes a Restricted Subsidiary of TransMontaigne Partners;
(3) to make a capital expenditure in respect of a Permitted Business;
(4) to acquire other assets that are not classified as current assets under GAAP and that are used or useful in a Permitted Business; or
(5) any combination of the foregoing. Notwithstanding the foregoing, if within 365 days after the receipt of any Net Proceeds from an Asset Sale, TransMontaigne Partners (or the applicable Restricted Subsidiary, as hereinafter definedthe case may be) enters into a binding written agreement irrevocably committing TransMontaigne Partners or such Restricted Subsidiary to an application of funds of the kind described in excess clause (2), (3) or (4) of the preceding paragraph, and as to which the only condition to closing is the receipt of required governmental approvals or the completion of required construction of the applicable asset(s), then TransMontaigne Partners or such Restricted Subsidiary shall be deemed not to be in violation of the preceding paragraph; provided that such Net Proceeds are so applied pursuant to any such binding agreement within two years after the date of receipt of such Net Proceeds. Pending the final application of any Net Proceeds, TransMontaigne Partners or any Restricted Subsidiary may temporarily reduce revolving credit borrowings or otherwise invest the Net Proceeds in any manner that is not prohibited by this Indenture. Any Net Proceeds from Asset Sales that are not applied or invested as provided in the second paragraph of this Section 4.10 will constitute “Excess Proceeds.” When the aggregate amount of Budgeted Expenses (as defined in Section 15(e) hereof) as set forth in the most recent Budget (as defined in Section 15(e)) required to be delivered pursuant to Section 15(e) hereof, Borrower shall prepay the Forbearance Period Advances as set forth in Section 3(i) hereof in an aggregate amount equal to such excess amount; provided, that (A) such Net Asset Sale Excess Proceeds shall be deposited directly by the payee thereof into a deposit account held by Borrower at Amegy Bank, N.A. and (B) ifexceeds $40.0 million, within 30 days of Borrower’s receipt of such Net thereof, TransMontaigne Partners will make an Asset Sale Offer to all Holders of Notes and all holders of other Indebtedness that is pari passu with the Notes containing provisions similar to those set forth in this Indenture with respect to offers to purchase or redeem with the proceeds of sales of assets to purchase the maximum principal amount of Notes and such other pari passu Indebtedness that may be purchased out of the Excess Proceeds, Borrower has not paid one or more such Budgeted Expenses . The offer price in an aggregate amount any Asset Sale Offer will be equal to 100% of the principal amount plus accrued and unpaid interest, if any, to the date of purchase, and will be payable in cash. If any Excess Proceeds remain after consummation of an Asset Sale Offer, TransMontaigne Partners may use those Excess Proceeds for any purpose not otherwise prohibited by this Indenture. If the aggregate principal amount of Notes and other pari passu Indebtedness tendered into such proceeds not otherwise required Asset Sale Offer exceeds the amount of Excess Proceeds, the Trustee shall select the Notes and the representative of such other pari passu Indebtedness will select such other pari passu Indebtedness to prepay be purchased on a pro rata basis. Upon completion of each Asset Sale Offer, the Forbearance Period Advances, then Borrower shall prepay amount of Excess Proceeds will be reset at zero. TransMontaigne Partners will comply with the Forbearance Period Advances as set forth in Section 3(i) hereof in an amount equal requirements of Rule 14e-1 under the Exchange Act and any other securities laws and regulations thereunder to the amount not so paid. “Net Asset Sale Proceeds” means, with respect to any Asset Sale (as hereinafter defined), an amount equal to: (1) cash payments received by Borrower or any of its Subsidiaries from extent such Asset Sale, minus (2) any bona fide direct costs laws and expenses incurred regulations are applicable in connection with such each repurchase of Notes pursuant to an Asset Sale to Offer. To the extent paid or payable to non-Affiliates, including (x) income or gains taxes payable or reasonably estimated to be payable by that the seller as a result provisions of any gain recognized in connection securities laws or regulations conflict with such Asset Sale during the tax period provisions of Section 3.09 hereof or this Section 4.10, TransMontaigne Partners will comply with the sale occurs, (y) payment of the applicable securities laws and regulations and will not be deemed to have breached its obligations (other than the Loans) secured under Section 3.09 hereof or this Section 4.10 by a Lien on the assets in question, which is required to be repaid under the terms thereof as a result virtue of such Asset Sale, and (z) a reasonable reserve for any adjustments in respect to sale price of such assets and any indemnification payments (fixed or contingent) attributable to seller’s indemnities and representations and warranties to purchaser in respect of such Asset Sale undertaken by Borrower or any of its Subsidiaries in connection with such Asset Sale; provided that upon release of any such reserve, the amount released shall be considered Net Asset Sale Proceeds). “Asset Sale” means a sale, lease or sublease (as lessor or sublessor), sale and leaseback, assignment, conveyance, transfer, license or other disposition to, or any exchange of property with, any Person (other than to or with a Credit Party), in one transaction or a series of transactions, of all or any part of any Credit Party’s businesses, assets or properties of any kind, whether real, personal, or mixed and whether tangible or intangible, whether now owned or hereafter acquired, leased or licensed, including, without limitation, the capital stock of any Credit Party, other than inventory or other assets sold or leased, or cash or cash equivalents disposed of, in each case, in the ordinary course of business. For purposes of clarification, “Asset Sale” shall (i) include (x) the sale or other disposition for value of any contracts or (y) the early termination or modification of any contract resulting in the receipt by any Credit Party of a cash payment or other consideration in exchange for such event (other than payments in the ordinary course of business for accrued and unpaid amounts due through the date of termination or modification) and (ii) exclude any taking or other disposition by means of power of eminent domain, condemnation or similar power, threat or rightcompliance.
Appears in 1 contract
Asset Sales. No later than The Company will not, and will not permit any of its Restricted Subsidiaries to, directly or indirectly, consummate an Asset Sale unless:
(a) at least 75% of the first business day following proceeds from such Asset Sale are received in cash; PROVIDED, HOWEVER, that the amount of (i) any Senior Indebtedness of the Company or any Guarantor (or any Indebtedness of a Restricted Subsidiary that is not a Guarantor) that is assumed by the transferee of any asset in connection with any Asset Sale and (ii) any securities, notes or other obligations received by the Company or any such Restricted Subsidiary from such transferee or purchaser that are converted by the Company or such Restricted Subsidiary into cash or Cash Equivalents within 60 days after receipt (to the extent of any cash or Cash Equivalents received in that conversion), shall be deemed to be cash for purposes of this provision; and
(b) The Company or such Restricted Subsidiary receives consideration at the time of such Asset Sale at least equal to the fair market value of the shares or assets sold (as determined by the Board of Directors of the Company and evidenced by a board resolution for Asset Sales in excess of $15,000,000). Notwithstanding the foregoing, clause (a) of the preceding paragraph shall not apply to any Asset Sale or portions thereof involving Excluded Assets or the making of any Permitted Investment pursuant to the definition of "PERMITTED INVESTMENT" or any Restricted Payment under Section 4.07 hereof. If all or a portion of the Net Cash Proceeds of any Asset Sale are not applied to prepay or repay permanently any Senior Indebtedness then outstanding as provided by the terms thereof (and to effect a corresponding commitment reduction in the event that the Senior Indebtedness prepaid or repaid is not a term loan) within 12 months of the closing of such Asset Sale, or if no such Senior Indebtedness is then outstanding, then the Company may within 12 months of the Asset Sale, invest the Net Cash Proceeds in properties and assets that (as determined by the Board of Directors) replace the properties and assets that were the subject of the Asset Sale or in properties and assets that will be used in the businesses of the Company or its Restricted Subsidiaries existing on the date of receipt, this Indenture or in businesses reasonably related thereto which for purposes of this Indenture shall include any given month, by Borrower consumer products business. The amount of such Net Cash Proceeds neither used to permanently repay or any of its Subsidiaries of any Net Asset Sale Proceeds (prepay Senior Indebtedness nor used or invested as hereinafter defined) set forth in excess of this paragraph constitutes "EXCESS PROCEEDS." When the aggregate amount of Budgeted Expenses Excess Proceeds equals $25,000,000 or more, the Company shall apply the Excess Proceeds to the repayment of the Notes and any Pari Passu Indebtedness required to be repurchased under the instrument governing such Pari Passu Indebtedness as follows:
(a) the Company shall make an offer to purchase (an "OFFER") from all Holders of the Notes in accordance with the procedures set forth in this Indenture in the maximum principal amount (expressed as a multiple of $1,000) of Notes that may be purchased out of an amount (the "NOTE AMOUNT") equal to the product of such Excess Proceeds multiplied by a fraction, the numerator of which is the outstanding principal amount of the Notes, and the denominator of which is the sum of the outstanding principal amount of the Notes and such Pari Passu Indebtedness (subject to proration in the event such amount is less than the aggregate Offered Price (as defined herein) of all Notes tendered); and
(b) to the extent required by such Pari Passu Indebtedness to permanently reduce the principal amount of such Pari Passu Indebtedness, the Company shall make an offer to purchase or otherwise repay or repurchase or redeem Pari Passu Indebtedness (a "PARI PASSU OFFER") in Section 15(ean amount (the "PARI PASSU DEBT AMOUNT") hereof) as set forth equal to the excess of the Excess Proceeds over the Note Amount; PROVIDED that in no event shall the most recent Budget (as defined in Section 15(e)) Pari Passu Debt Amount exceed the principal amount of such Pari Passu Indebtedness plus the amount of any premium required to be delivered pursuant paid to Section 15(e) hereof, Borrower repurchase such Pari Passu Indebtedness. The offer price shall prepay the Forbearance Period Advances as set forth be payable in Section 3(i) hereof cash in an aggregate amount equal to such excess amount; provided, that (A) such Net Asset Sale Proceeds shall be deposited directly by the payee thereof into a deposit account held by Borrower at Amegy Bank, N.A. and (B) if, within 30 days of Borrower’s receipt of such Net Asset Sale Proceeds, Borrower has not paid one or more such Budgeted Expenses in an aggregate amount equal to 100% of the principal amount of the Notes plus accrued and unpaid interest, if any, to the date (the "PURCHASE DATE") such proceeds not otherwise required to prepay Offer is consummated (the Forbearance Period Advances"OFFERED PRICE"), then Borrower shall prepay in accordance with the Forbearance Period Advances as procedures set forth in Section 3(i) hereof in an amount equal 3.09 hereof. To the extent that the aggregate Offered Price of the Notes tendered pursuant to the Offer is less than the Note Amount relating thereto or the aggregate amount not so paid. “Net Asset Sale Proceeds” meansof Pari Passu Indebtedness that is purchased is less than the Pari Passu Debt Amount (the amount of such shortfall, with respect to any Asset Sale (as hereinafter definedif any, constituting a "Deficiency"), an amount equal to: (1) cash payments received by Borrower or any of its Subsidiaries from the Company shall use such Asset Sale, minus (2) any bona fide direct costs and expenses incurred Deficiency in connection with such Asset Sale to the extent paid or payable to non-Affiliates, including (x) income or gains taxes payable or reasonably estimated to be payable by the seller as a result of any gain recognized in connection with such Asset Sale during the tax period the sale occurs, (y) payment business of the obligations (Company and its Restricted Subsidiaries or for any other than the Loans) secured by a Lien on the assets in question, which is required to be repaid purpose permitted under the terms thereof as of this Indenture. Upon completion of the purchase of all the Notes tendered pursuant to an Offer and repurchase of the Pari Passu Indebtedness pursuant to a result of such Asset Sale, and (z) a reasonable reserve for any adjustments in respect to sale price of such assets and any indemnification payments (fixed or contingent) attributable to seller’s indemnities and representations and warranties to purchaser in respect of such Asset Sale undertaken by Borrower or any of its Subsidiaries in connection with such Asset Sale; provided that upon release of any such reservePari Passu Offer, the amount released of Excess Proceeds, if any, shall be considered Net Asset Sale Proceeds)reset at zero. “Asset Sale” means Such Excess Proceeds may be invested in Temporary Cash Investments or used to temporarily repay amounts outstanding under a salerevolving credit facility until they are applied as provided above. The Company shall be entitled to any interest or dividends accrued, lease earned or sublease (as lessor or sublessor), sale and leaseback, assignment, conveyance, transfer, license or other disposition to, or any exchange of property with, any Person (other than to or with a Credit Party), in one transaction or a series of transactions, of all or any part of any Credit Party’s businesses, assets or properties of any kind, whether real, personal, or mixed and whether tangible or intangible, whether now owned or hereafter acquired, leased or licensed, including, without limitation, the capital stock of any Credit Party, other than inventory or other assets sold or leased, or cash or cash equivalents disposed of, in each case, in the ordinary course of business. For purposes of clarification, “Asset Sale” shall (i) include (x) the sale or other disposition for value of any contracts or (y) the early termination or modification of any contract resulting in the receipt by any Credit Party of a cash payment or other consideration in exchange for paid on such event (other than payments in the ordinary course of business for accrued and unpaid amounts due through the date of termination or modification) and (ii) exclude any taking or other disposition by means of power of eminent domain, condemnation or similar power, threat or rightTemporary Cash Investments.
Appears in 1 contract
Asset Sales. No later The Company shall not, and shall not permit any of its Restricted Subsidiaries to, consummate an Asset Sale unless (x) the Company (or the Restricted Subsidiary, as the case may be) receives consideration at the time of such Asset Sale at least equal to the fair market value of the assets or Equity Interests issued or sold or otherwise disposed of; (y) such fair market value shall be determined by the Company's Board of Directors (whose good faith determination shall be conclusive) and evidenced by a Board Resolution set forth in an Officers' Certificate delivered to the Trustee; and (z) at least 75% of the consideration received therefor by the Company or such Restricted Subsidiary is in the form of cash or Cash Equivalents; provided, however, that the amount of (A) any liabilities (as shown on the Company's or such Restricted Subsidiary's most recent balance sheet or in the notes thereto), of the Company or any Restricted Subsidiary (other than contingent liabilities and liabilities that are by their terms subordinated to the first business day following Notes or any 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 and (B) any securities, notes or other obligations received by the Company or any such Restricted Subsidiary from such transferee that are converted by the Company or such Restricted Subsidiary into cash (to the extent of the cash received in that conversion) within 30 days of receipt thereof, shall be deemed to be cash for purposes of this provision. A transfer of assets by the 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 360 days after the receipt of any Net Proceeds from an Asset Sale, the Company may (a) apply the Net Proceeds from such Asset Sale, at its option, (i) to acquire all or substantially all of the assets of, or a majority of the Voting Stock of, another Permitted Business, or Voting Stock of a Restricted Subsidiary engaged in a Permitted Business (other than any such Voting Stock owned or held by a Restricted Subsidiary), (ii) to make a capital expenditure, or (iii) to acquire other assets that are used or useful in a Permitted Business that have an expected useful life of one year or longer; (b) enter into a legally binding agreement to apply such Net Proceeds as described in the preceding clause (a) within six months after such agreement is entered into and apply such Net Proceeds in accordance with the terms of such agreement or the provisions of clause (a) above; provided that if such agreement terminates the Company shall have until the earlier of (i) 90 days after the date of receiptsuch termination and (ii) six months after the date of the Asset Sale resulting in such Net Proceeds to effect such an application; or (c) to permanently repay (and reduce the commitments with respect to) Pari Passu Indebtedness. Pending the final application of any such Net Proceeds, the Company may temporarily reduce revolving credit borrowings or otherwise invest such Net Proceeds in any given month, manner that is not prohibited by Borrower or any of its Subsidiaries of any this Indenture. Any Net Proceeds from such Asset Sale Proceeds (that are not finally applied or invested as hereinafter defined) provided in excess the first sentence of this paragraph will be deemed to constitute "Excess Proceeds." Within five days of each date on which the aggregate amount of Budgeted Expenses (as defined in Excess Proceeds exceeds $10.0 million, the Company shall commence an Asset Sale Offer pursuant to Section 15(e) hereof) as 3.09 hereof to all Holders of Notes and all holders of Pari Passu Indebtedness containing provisions similar to those set forth in this Indenture with respect to offers to purchase or redeem with the most recent Budget proceeds of sales of assets to purchase the maximum principal amount (as defined or, if applicable, accreted value) of Notes and such other Pari Passu Indebtedness that may be purchased out of the Excess Proceeds at an offer price in Section 15(e)) required to be delivered pursuant to Section 15(e) hereof, Borrower shall prepay the Forbearance Period Advances as set forth in Section 3(i) hereof cash in an aggregate amount equal to such excess amount; provided, that (A) such Net Asset Sale Proceeds shall be deposited directly by the payee thereof into a deposit account held by Borrower at Amegy Bank, N.A. and (B) if, within 30 days of Borrower’s receipt of such Net Asset Sale Proceeds, Borrower has not paid one or more such Budgeted Expenses in an aggregate amount equal to 100% of the amount Accreted Value thereof (or principal amount, if applicable, of such proceeds not otherwise required other Indebtedness) plus accrued and unpaid interest thereon to prepay the Forbearance Period Advancesdate fixed for the closing of such offer, then Borrower shall prepay in accordance with the Forbearance Period Advances as procedures set forth in Section 3(i3.09 hereof. To the extent that the aggregate Accreted Value of Notes tendered pursuant to an Asset Sale Offer is less than the Excess Proceeds, the Company may use such difference for any purpose not otherwise prohibited by this Indenture. If the aggregate Accreted Value of Notes and principal amount (or, if applicable, accreted value) hereof in an of such other Pari Passu Indebtedness tendered into such Asset Sale Offer exceeds the amount equal 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 Accreted Value of Notes and principal amount (or, if applicable, accreted value) of such other Pari Passu Indebtedness tendered. Upon completion of each Asset Sale Offer, the amount of Excess Proceeds shall 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 amount not so paid. “Net Asset Sale Proceeds” means, with respect to any Asset Sale (as hereinafter defined), an amount equal to: (1) cash payments received by Borrower or any of its Subsidiaries from extent such Asset Sale, minus (2) any bona fide direct costs laws and expenses incurred regulations are applicable in connection with such each repurchase of Notes pursuant to an Asset Sale to Offer. To the extent paid or payable to non-Affiliates, including (x) income or gains taxes payable or reasonably estimated to be payable by that the seller as a result provisions of any gain recognized in connection securities laws or regulations conflict with such the Asset Sales provisions of this Indenture, the Company shall comply with the applicable securities laws and regulations and shall not be deemed to have breached its obligations under the Asset Sale during the tax period the sale occurs, (y) payment provisions of the obligations (other than the Loans) secured this Indenture by a Lien on the assets in question, which is required to be repaid under the terms thereof as a result virtue of such Asset Sale, and (z) a reasonable reserve for any adjustments in respect to sale price of such assets and any indemnification payments (fixed or contingent) attributable to seller’s indemnities and representations and warranties to purchaser in respect of such Asset Sale undertaken by Borrower or any of its Subsidiaries in connection with such Asset Sale; provided that upon release of any such reserve, the amount released shall be considered Net Asset Sale Proceeds). “Asset Sale” means a sale, lease or sublease (as lessor or sublessor), sale and leaseback, assignment, conveyance, transfer, license or other disposition to, or any exchange of property with, any Person (other than to or with a Credit Party), in one transaction or a series of transactions, of all or any part of any Credit Party’s businesses, assets or properties of any kind, whether real, personal, or mixed and whether tangible or intangible, whether now owned or hereafter acquired, leased or licensed, including, without limitation, the capital stock of any Credit Party, other than inventory or other assets sold or leased, or cash or cash equivalents disposed of, in each case, in the ordinary course of business. For purposes of clarification, “Asset Sale” shall (i) include (x) the sale or other disposition for value of any contracts or (y) the early termination or modification of any contract resulting in the receipt by any Credit Party of a cash payment or other consideration in exchange for such event (other than payments in the ordinary course of business for accrued and unpaid amounts due through the date of termination or modification) and (ii) exclude any taking or other disposition by means of power of eminent domain, condemnation or similar power, threat or rightconflict.
Appears in 1 contract
Sources: Indenture (Xm Satellite Radio Inc)
Asset Sales. No later than the first business day fifth (5/th/) Business Day ----------- following the date of receipt, in any given month, receipt by Borrower Company or any of its Subsidiaries of Cash Proceeds of any Asset Sale, Company shall prepay the Loans (and/or the Revolving Loan Commitments shall be reduced) in an amount equal to the Net Cash Proceeds received with respect thereto; provided -------- that, if Company shall have delivered a Reinvestment Notice to the Administrative Agent no later than the fifth (5/th/) Business Day following the consummation of such Asset Sale, Company shall not be required to make any prepayment with the proceeds of such Asset Sale Proceeds to the extent that all or any portion of such proceeds are reinvested (as hereinafter definedor a contract has been entered into to reinvest) in excess Reinvestment Assets within three hundred sixth five (365) days from the date of receipt of such proceeds; provided further that the aggregate amount -------- ------- of Budgeted Expenses Net Cash Proceeds that may be reinvested pursuant to the immediately preceding proviso shall not exceed $5,000,000 in any Fiscal Year (as defined or $10,000,000 in Section 15(e) hereof) as set forth any Fiscal Year at any time the Leverage Ratio, determined on a Pro Forma Basis after giving effect to such Asset Sale, is less than 3.50:1.00); and provided still further -------- ----- ------- that, on each Reinvestment Prepayment Date, an amount equal to the Reinvestment Prepayment Amount with respect to the relevant Reinvestment Event shall be applied to prepay the Loans (and/or the Revolving Loan Commitments shall be reduced). Concurrently with any prepayment of Loans (and/or any reduction in the most recent Budget (as defined in Section 15(e)Revolving Loan Commitments) required to be delivered pursuant to Section 15(ethis subsection 2.4B(iii)(a), Company shall deliver to the Administrative Agent an Officer's Certificate demonstrating in detail reasonably satisfactory to the Administrative Agent the derivation of the Net Cash Proceeds of the correlative Asset Sale from the gross sales price thereof. In addition, in the event that Company shall, at any time after receipt of proceeds of any Reinvestment Event requiring a prepayment (and/or a reduction in the Revolving Loan Commitments) hereofpursuant to this subsection 2.4B(iii)(a), Borrower shall prepay determine that the Forbearance Period Advances as set forth prepayments (and/or a reduction in Section 3(ithe Revolving Loan Commitments) hereof previously made in respect of such Reinvestment Event were in an aggregate amount equal to such excess amount; provided, less than that (A) such Net Asset Sale Proceeds shall be deposited directly required by the payee thereof into a deposit account held by Borrower at Amegy Bankterms of this subsection 2.4B(iii)(a), N.A. and (B) if, within 30 days of Borrower’s receipt of such Net Asset Sale Proceeds, Borrower has not paid one or more such Budgeted Expenses in Company shall promptly cause to be made an aggregate amount equal to 100% additional prepayment of the amount of such proceeds not otherwise required to prepay Loans (and/or reduction in the Forbearance Period Advances, then Borrower shall prepay the Forbearance Period Advances as set forth in Section 3(iRevolving Loan Commitments) hereof in an amount equal to the amount not so paid. “Net Asset Sale Proceeds” means, with respect to any Asset Sale (as hereinafter defined), an amount equal to: (1) cash payments received by Borrower or any of its Subsidiaries from such Asset Sale, minus (2) any bona fide direct costs and expenses incurred in connection with such Asset Sale to the extent paid or payable to non-Affiliates, including (x) income or gains taxes payable or reasonably estimated to be payable by the seller as a result of any gain recognized in connection with such Asset Sale during the tax period the sale occurs, (y) payment of the obligations (other than the Loans) secured by a Lien on the assets in question, which is required to be repaid under the terms thereof as a result of such Asset Sale, and (z) a reasonable reserve for any adjustments in respect to sale price of such assets and any indemnification payments (fixed or contingent) attributable to seller’s indemnities and representations and warranties to purchaser in respect of such Asset Sale undertaken by Borrower or any of its Subsidiaries in connection with such Asset Sale; provided that upon release of any such reservedeficit, and Company shall concurrently therewith deliver to the amount released shall be considered Net Asset Sale Proceeds). “Asset Sale” means a sale, lease or sublease (as lessor or sublessor), sale and leaseback, assignment, conveyance, transfer, license or other disposition to, or any exchange Administrative Agent an Officer's Certificate demonstrating the derivation of property with, any Person (other than to or with a Credit Party), in one transaction or a series of transactions, of all or any part of any Credit Party’s businesses, assets or properties of any kind, whether real, personal, or mixed and whether tangible or intangible, whether now owned or hereafter acquired, leased or licensed, including, without limitation, the capital stock of any Credit Party, other than inventory or other assets sold or leased, or cash or cash equivalents disposed of, in each case, in the ordinary course of business. For purposes of clarification, “Asset Sale” shall (i) include (x) the sale or other disposition for value of any contracts or (y) the early termination or modification of any contract additional proceeds resulting in such deficit. If Company is otherwise required to apply any portion of Net Cash Proceeds to prepay Indebtedness evidenced by the receipt by Subordinated Debt then, notwithstanding anything contained in this Agreement to the contrary, Company shall apply such Net Cash Proceeds to the prepayment of the Loans so as to eliminate or minimize any Credit Party of a cash payment or other consideration in exchange for such event (other than payments in obligation to prepay the ordinary course of business for accrued and unpaid amounts due through the date of termination or modification) and (ii) exclude any taking or other disposition by means of power of eminent domain, condemnation or similar power, threat or rightSubordinated Debt.
Appears in 1 contract
Sources: Credit Agreement (Microclock Inc)
Asset Sales. No later than The Company shall not, and shall not permit any of its Restricted Subsidiaries to, consummate an Asset Sale unless (i) the first business day following Company (or the date Restricted Subsidiary, as the case may be) receives consideration at the time of receipt, such Asset Sale at least equal to the fair market value (evidenced by a resolution of the Board of Directors set forth in an Officers' Certificate delivered to the Trustee in the case of any given month, by Borrower Asset Sale for which the Company or any of its Restricted Subsidiaries receives consideration in excess of $15,000,000) of the assets or Equity Interests issued or sold or otherwise disposed of and (ii) at least 80% of the consideration therefor received by the Company or such Restricted Subsidiary is in the form of cash or Cash Equivalents; 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 guarantee thereof) that are assumed by the transferee of any such assets pursuant to a customary novation or other agreement that releases the Company or such Restricted Subsidiary from further liability and (y) any securities, notes or other obligations received by the Company or any such Restricted Subsidiary from such transferee that are converted by the Company or such Restricted Subsidiary within 90 days following the closing of the Asset Sale into cash (to the extent of the cash received), shall be deemed to be cash for purposes of this provision. Within 360 days of the receipt of any Net Asset Sale Proceeds (as hereinafter defined) in excess of the aggregate amount of Budgeted Expenses (as defined in Section 15(e) hereof) as set forth in the most recent Budget (as defined in Section 15(e)) required to be delivered pursuant to Section 15(e) hereof, Borrower shall prepay the Forbearance Period Advances as set forth in Section 3(i) hereof in from an aggregate amount equal to such excess amount; provided, that (A) such Net Asset Sale Proceeds shall be deposited directly by the payee thereof into a deposit account held by Borrower at Amegy Bank, N.A. and (B) if, within 30 days of Borrower’s receipt of such Net Asset Sale Proceeds, Borrower has not paid one or more such Budgeted Expenses in an aggregate amount equal to 100% of the amount of such proceeds not otherwise required to prepay the Forbearance Period Advances, then Borrower shall prepay the Forbearance Period Advances as set forth in Section 3(i) hereof in an amount equal to the amount not so paid. “Net Asset Sale Proceeds” means, with respect to any Asset Sale (as hereinafter defined), an amount equal to: (1) cash payments received by Borrower or any of its Subsidiaries from such Asset Sale, minus (2) any bona fide direct costs the Company and expenses incurred in connection with its Restricted Subsidiaries may apply such Asset Sale to the extent paid or payable to non-AffiliatesNet Proceeds, including (x) income or gains taxes payable or reasonably estimated to be payable by the seller as a result of any gain recognized in connection with such Asset Sale during the tax period the sale occursat their option, (ya) payment of to repay secured Indebtedness (and, in the obligations (other than the Loans) secured by a Lien on the assets in question, which is required to be repaid under the terms thereof as a result of such Asset Sale, and (z) a reasonable reserve for any adjustments in respect to sale price of such assets and any indemnification payments (fixed or contingent) attributable to seller’s indemnities and representations and warranties to purchaser in respect of such Asset Sale undertaken by Borrower or any of its Subsidiaries in connection with such Asset Sale; provided that upon release case of any such reserveIndebtedness that was borrowed under a revolving credit line, to correspondingly reduce commitments with respect thereto), or (b) to the acquisition of a controlling interest in another business, the amount released shall be considered Net Asset Sale Proceeds). “Asset Sale” means making of a sale, lease capital 54 49 expenditure or sublease (as lessor or sublessor), sale and leaseback, assignment, conveyance, transfer, license or the acquisition of other disposition to, or any exchange of property with, any Person (other than to or with a Credit Party), in one transaction or a series of transactions, of all or any part of any Credit Party’s businesses, assets or properties of any kind, whether real, personal, or mixed and whether tangible or intangible, whether now owned or hereafter acquired, leased or licensed, including, without limitation, the capital stock of any Credit Party, other than inventory or other assets sold or leased, or cash or cash equivalents disposed oflong-term assets, in each case, in the ordinary course same or a related or complementary line of businessbusiness as the Company or any of its Restricted Subsidiaries was engaged in on the date of this Indenture (as determined in good faith by the Company). For purposes Pending the final application of clarificationany such Net Proceeds, “the Company may temporarily reduce the revolving credit lines under the New Credit Facility (without any corresponding commitment reduction) or otherwise invest such Net Proceeds in any manner that is not prohibited by this Indenture. Any Net Proceeds from Asset Sale” Sales that are not applied or invested as provided in the first sentence of this paragraph shall be deemed to constitute "Excess Proceeds." Not later than 30 days after any date (an "Asset Sale Offer Trigger Date") that the aggregate amount of Excess Proceeds exceeds $10,000,000, the Company shall mail to each holder of Notes at such holder's registered address a notice stating: (i) include (x) that an Asset Sale Offer Trigger Date has occurred and that the sale or other disposition for value Company is offering to purchase the maximum principal amount of any contracts or (y) Notes that may be purchased out of the early termination or modification Excess Proceeds, at an offer price in cash equal to 100% of any contract resulting in the receipt by any Credit Party of a cash payment or other consideration in exchange for such event (other than payments in the ordinary course of business for principal amount thereof, plus accrued and unpaid amounts due through interest and Liquidated Damages, if any, thereon to the date of termination purchase (the "Asset Sale Offer Purchase Date"), which shall be a business day, specified in such notice, that is not earlier than 30 days or modification) and later than 60 days from the date such notice is mailed; (ii) exclude the amount of accrued and unpaid interest and Liquidated Damages, if any, thereon as of the Asset Sale Offer Purchase Date; (iii) that any taking Note not tendered shall continue to accrue interest and Liquidated Damages, if any; (iv) that, unless the Company defaults in the payment of the purchase price for the Notes payable pursuant to the Asset Sale Offer, any Notes accepted for payment pursuant to the Asset Sale Offer shall cease to accrue interest and Liquidated Damages, if any, after the Asset Sale Offer Purchase Date; (v) the procedures, consistent with this Indenture, to be followed by a holder of Notes in order to accept an Asset Sale Offer or to withdraw such acceptance; and (vi) such other disposition information as may be required by means this Indenture and applicable laws and regulations. On the Asset Sale Offer Purchase Date, the Company shall: (i) accept for payment the maximum principal amount of power Notes or portions thereof tendered pursuant to the Asset Sale Offer that can be purchased out of eminent domainExcess Proceeds from such Asset Sale; (ii) deposit with the paying agent the aggregate purchase price of all Notes or portions thereof accepted for payment and any accrued and unpaid interest and Liquidated Damages, condemnation if any, on such Notes as of the Asset Sale Offer Purchase Date; and (iii) deliver or similar powercause to be delivered to the Trustee all Notes tendered pursuant to the Asset Sale Offer. The paying agent shall promptly mail to each holder of Notes or portions thereof accepted for payment an amount equal to the purchase price for such Note plus any accrued and unpaid interest and Liquidated Damages, threat if any, thereon, and the Trustee shall promptly authenticate and mail to such holder of Notes accepted for payment in part a new Note equal in principal amount to any unpurchased portion of the Notes, and any Note not accepted for payment in whole or rightin part shall be promptly returned to the holder of such Note. On and after an Asset Sale 55 50 Offer Purchase Date, interest and Liquidated Damages, if any, shall cease to accrue on the Notes or portions thereof accepted for payment, unless the Company defaults in the payment of the purchase price therefor. The Company shall announce the results of the Asset Sale Offer to holders of the Notes on or as soon as practicable after the Asset Sale Offer Purchase Date. To the extent that the aggregate amount of Notes tendered pursuant to an Asset Sale Offer is less than the Excess Proceeds, the Company may use any remaining Excess Proceeds for general corporate purposes. If the Aggregate principal amount of Notes surrendered by Holders thereof exceeds the amount of Excess Proceeds, the Trustee shall select the Notes to be purchased on a pro rata basis. Upon completion of such Asset Sale Offer, the amount of Excess Proceeds shall be reset at zero. The Company shall comply with the applicable tender offer rules, including the requirements of Rule 14e-1 under the Exchange Act, and all other applicable securities laws and regulations in connection with any Asset Sale Offer. To the extent that any applicable securities laws or regulations conflict with the terms hereof, the Company shall comply with such laws or regulations and shall not be deemed to have breached its obligations under this Indenture or Notes by virtue thereof. If the Asset Sale Purchase Date is on or after an interest record date and on or before the related interest payment date, any accrued and unpaid interest shall be paid to the Person in whose name a Note is registered at the close of business on such record date, and no additional interest shall be payable to Holders who tender Notes pursuant to the Asset Sale Offer.
Appears in 1 contract
Sources: Indenture (Medaphis Corp)
Asset Sales. No later The Issuer shall not, and shall not permit any of its Restricted Subsidiaries to, consummate an Asset Sale unless (i) the Issuer (or the Restricted Subsidiary, as the case may be) receives consideration at the time of such Asset Sale at least equal to the fair market value (evidenced by a resolution of the Board of Directors set forth in an Officers' Certificate delivered to the Trustee with respect to any Asset Sale involving in excess of $1.0 million) of the assets or Equity Interests issued or sold or otherwise disposed of and (ii) at least 75% of the consideration therefor received by the Issuer or such Restricted Subsidiary is in the form of cash or Cash Equivalents; provided that the amount of (x) any liabilities (as shown on the Issuer's or such Restricted Subsidiary's most recent balance sheet), of the Issuer or any Restricted Subsidiary (other than contingent liabilities and liabilities that are by their terms subordinated to the first Notes or any guarantee thereof) that are assumed by the transferee of any such assets pursuant to a customary novation agreement that releases the Issuer or such Restricted Subsidiary from further liability and (y) any securities, notes or other obligations received by the Issuer or any such Restricted Subsidiary from such transferee that are immediately converted by the Issuer or such Restricted Subsidiary into cash (to the extent of the cash received), shall be deemed to be cash for purposes of this provision. Within 360 days after the receipt of any Net Proceeds from an Asset Sale, the Issuer or its Restricted Subsidiary, as the case may be, may apply such Net Proceeds from such Asset Sale to permanently reduce Indebtedness under the New Credit Facility in accordance with its terms, if applicable, or to the extent not required to be applied thereunder, may, at its option, apply such Net Proceeds to repayment of Indebtedness of a Restricted Subsidiary (in the case of Net Proceeds from an Asset Sale effected by a Restricted Subsidiary) or to an investment in a Restricted Subsidiary or in another business day following the date of receiptor capital expenditure or other long-term/tangible assets, in any given montheach case, by Borrower in the same or a similar line of business as the Issuer or any of its Restricted Subsidiaries were engaged in on the date of this Indenture or in businesses reasonably related thereto. Pending the final application of any such Net Proceeds, the Issuer may temporarily reduce Indebtedness under the New Credit Facility or otherwise invest such Net Proceeds in any manner that is not prohibited by this Indenture. Any Net Proceeds from Asset Sale Proceeds (Sales that are not applied or invested as hereinafter defined) provided in excess the first sentence of this paragraph shall be deemed to constitute "Excess Proceeds." When the aggregate amount of Budgeted Expenses (as defined in Section 15(e) hereof) as set forth in Excess Proceeds exceeds $5.0 million, the most recent Budget (as defined in Section 15(e)) Issuer shall be required to make an offer to all Holders of Notes (an "Asset Sale Offer") to purchase the maximum principal amount of Notes that may be delivered pursuant to Section 15(e) hereofpurchased out of the Excess Proceeds, Borrower shall prepay the Forbearance Period Advances as set forth at an offer price in Section 3(i) hereof cash in an aggregate amount equal to such excess amount; provided, that (A) such Net Asset Sale Proceeds shall be deposited directly by the payee thereof into a deposit account held by Borrower at Amegy Bank, N.A. and (B) if, within 30 days of Borrower’s receipt of such Net Asset Sale Proceeds, Borrower has not paid one or more such Budgeted Expenses in an aggregate amount equal to 100% of the principal amount thereof plus accrued and unpaid interest and Liquidated Damages, if any, thereon to the date of such proceeds not otherwise required to prepay purchase, in accordance with the Forbearance Period Advances, then Borrower shall prepay the Forbearance Period Advances as procedures set forth in Section 3(i) hereof in this Indenture. To the extent that the aggregate amount of Notes tendered pursuant to an Asset Sale Offer is less than the Excess Proceeds, the Issuer may use any remaining Excess Proceeds for general corporate purposes. If the aggregate principal amount equal to of Notes surrendered by Holders thereof exceeds the amount not so paid. “Net Asset Sale of Excess Proceeds” means, with respect to any Asset Sale (as hereinafter defined), an amount equal to: (1) cash payments received by Borrower or any of its Subsidiaries from such Asset Sale, minus (2) any bona fide direct costs and expenses incurred in connection with such Asset Sale to the extent paid or payable to non-Affiliates, including (x) income or gains taxes payable or reasonably estimated Trustee shall select the Notes to be payable by the seller as purchased on a result of any gain recognized in connection with such Asset Sale during the tax period the sale occurs, (y) payment of the obligations (other than the Loans) secured by a Lien on the assets in question, which is required to be repaid under the terms thereof as a result pro rata basis. Upon completion of such Asset Sale, and (z) a reasonable reserve for any adjustments in respect offer to sale price of such assets and any indemnification payments (fixed or contingent) attributable to seller’s indemnities and representations and warranties to purchaser in respect of such Asset Sale undertaken by Borrower or any of its Subsidiaries in connection with such Asset Sale; provided that upon release of any such reservepurchase, the amount released of Excess Proceeds shall be considered Net Asset Sale Proceeds). “Asset Sale” means a sale, lease or sublease (as lessor or sublessor), sale and leaseback, assignment, conveyance, transfer, license or other disposition to, or any exchange of property with, any Person (other than to or with a Credit Party), in one transaction or a series of transactions, of all or any part of any Credit Party’s businesses, assets or properties of any kind, whether real, personal, or mixed and whether tangible or intangible, whether now owned or hereafter acquired, leased or licensed, including, without limitation, the capital stock of any Credit Party, other than inventory or other assets sold or leased, or cash or cash equivalents disposed of, in each case, in the ordinary course of business. For purposes of clarification, “Asset Sale” shall (i) include (x) the sale or other disposition for value of any contracts or (y) the early termination or modification of any contract resulting in the receipt by any Credit Party of a cash payment or other consideration in exchange for such event (other than payments in the ordinary course of business for accrued and unpaid amounts due through the date of termination or modification) and (ii) exclude any taking or other disposition by means of power of eminent domain, condemnation or similar power, threat or rightreset at zero.
Appears in 1 contract
Sources: Indenture (Anchor Holdings Inc)
Asset Sales. No later than the first business day following the date of receiptThe Company shall not, in any given month, by Borrower or and shall not permit any of its Restricted Subsidiaries to, consummate an Asset Sale unless (a) the Company or such Restricted Subsidiary, as the case may be, receives consideration at the time of such Asset Sale at least equal to the fair market value (as determined in 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 and (b) at least 75% of the consideration therefor received by the Company or such Restricted Subsidiary is in the form of cash or Cash Equivalents, provided, however, that the amount of (i) any liabilities (as shown on the Company’s or such Restricted Subsidiary’s most recent balance sheet) of the Company or such Restricted Subsidiary (other than contingent liabilities and liabilities that are by their terms subordinated to the Notes or any 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, (ii) any securities, notes or other obligations received by the Company or such Restricted Subsidiary from such transferee that are converted within 180 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 Restricted Subsidiary in such Asset Sale having an aggregate fair market value (determined in accordance with the definition of such term under Section 1.01, the 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 Sale, the Company or any such Restricted Subsidiary may apply such Net Proceeds to (a) permanently repay the 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 or a majority of the Voting Stock of a Person, by merger, by consolidation or otherwise) Strategic Assets, provided that if the Company or such Restricted Subsidiary enters into a binding agreement to acquire such Strategic Assets within such 365-day period, but the consummation of the transactions under such agreement has not occurred within such 365-day period and such agreement has not been terminated, then such 365-day period shall be extended by 90 days to permit such consummation. If such consummation shall not occur, or such agreement shall be terminated within such 90-day extension period, then the Company may apply, or cause such Restricted Subsidiary to apply, within 90 days after the end of such initial 90-day extension period or the effective date of such termination, whichever is earlier, such Net Proceeds as hereinafter definedprovided in clauses (a) through (c) of 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 such Net Proceeds in excess any manner that is not prohibited by this Indenture. Any Net Proceeds from Asset Sales that are not applied or invested as provided in clauses (a) through (c) of this paragraph shall be deemed to constitute “Excess Proceeds.” Within 30 days of each date on which the aggregate amount of Budgeted Expenses (as defined in Section 15(e) hereof) as set forth in Excess Proceeds exceeds €20,000,000, the most recent Budget (as defined in Section 15(e)) required to be delivered Company shall commence an Asset Sale Offer pursuant to Section 15(e) hereof, Borrower shall prepay 3.09 hereof to purchase the Forbearance Period Advances as set forth maximum principal amount of Notes that may be purchased out of Excess Proceeds at an offer price in Section 3(i) hereof cash in an aggregate amount equal to such excess amount; provided, that (A) such Net Asset Sale Proceeds shall be deposited directly by the payee thereof into a deposit account held by Borrower at Amegy Bank, N.A. and (B) if, within 30 days of Borrower’s receipt of such Net Asset Sale Proceeds, Borrower has not paid one or more such Budgeted Expenses in an aggregate amount equal to 100% of the principal amount thereof, plus accrued and unpaid interest thereon, to the date of such proceeds not otherwise required to prepay purchase, in accordance with the Forbearance Period Advances, then Borrower shall prepay the Forbearance Period Advances as procedures set forth in Section 3(i3.09 hereof; provided, however, that, if the Company is required to apply such Excess Proceeds to purchase, or to offer to purchase, any Pari Passu Indebtedness, the Company shall only be required to offer to purchase the maximum principal amount of Notes that may be purchased out of the amount of such Excess Proceeds multiplied by a fraction, the numerator of which is the aggregate principal amount of Notes outstanding and the denominator of which is the aggregate principal amount of Notes outstanding plus the aggregate principal amount of Pari Passu Indebtedness outstanding. To the extent that the aggregate principal amount of Notes tendered pursuant to an Asset Sale Offer is less than the amount that the Company is required to purchase, the Company may use any remaining Excess Proceeds for general corporate purposes in any manner not prohibited by this Indenture. If the aggregate principal amount of Notes surrendered by holders thereof exceeds the amount that the Company is required to purchase, the Trustee shall select the Notes to be purchased on a pro rata basis (with such adjustments as may be deemed appropriate by the Trustee so that only Notes in denominations of €100,000, or integral multiples of €1,000 in excess thereof, shall be purchased). Upon completion of such offer to purchase, the amount of Excess Proceeds 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) hereof in that would place any restriction of any kind (other than pursuant to law or regulation) on the ability of the Company to make an amount equal 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 amount not so paid. “Net Asset Sale Proceeds” means, with respect to any Asset Sale (as hereinafter defined), an amount equal to: (1) cash payments received by Borrower or any of its Subsidiaries from extent such Asset Sale, minus (2) any bona fide direct costs laws and expenses incurred regulations are applicable in connection with such Asset Sale to the extent paid or payable to non-Affiliates, including (x) income or gains taxes payable or reasonably estimated to be payable by the seller purchase of Notes as a result of any gain recognized in connection with such an Asset Sale during Offer. To the tax period extent that the sale occurs, (y) payment provisions of any securities laws or regulations conflict with the obligations (other than provisions relating to the Loans) secured by a Lien on the assets in question, which is required to be repaid under the terms thereof as a result of such Asset Sale, and (z) a reasonable reserve for any adjustments in respect to sale price of such assets and any indemnification payments (fixed or contingent) attributable to seller’s indemnities and representations and warranties to purchaser in respect of such Asset Sale undertaken by Borrower or any of its Subsidiaries in connection with such Asset Sale; provided that upon release of any such reserveOffer, the amount released Company shall comply with the applicable securities laws and regulations and shall not be considered Net Asset Sale Proceeds). “Asset Sale” means a sale, lease or sublease (as lessor or sublessor), sale and leaseback, assignment, conveyance, transfer, license or other disposition to, or any exchange of property with, any Person (other than deemed to or with a Credit Party), in one transaction or a series of transactions, of all or any part of any Credit Party’s businesses, assets or properties of any kind, whether real, personal, or mixed and whether tangible or intangible, whether now owned or hereafter acquired, leased or licensed, including, without limitation, the capital stock of any Credit Party, other than inventory or other assets sold or leased, or cash or cash equivalents disposed of, in each case, in the ordinary course of business. For purposes of clarification, “Asset Sale” shall (i) include (x) the sale or other disposition for value of any contracts or (y) the early termination or modification of any contract resulting in the receipt have breached its obligations described above by any Credit Party of a cash payment or other consideration in exchange for such event (other than payments in the ordinary course of business for accrued and unpaid amounts due through the date of termination or modification) and (ii) exclude any taking or other disposition by means of power of eminent domain, condemnation or similar power, threat or rightvirtue thereof.
Appears in 1 contract
Sources: Indenture (CGG)
Asset Sales. No later than The Company may not, and may not permit any Restricted Subsidiary to, directly or indirectly, consummate an Asset Sale (including the first sale of any of the Capital Stock of any Restricted Subsidiary) providing for Net Proceeds in excess of $5,000,000 unless at least 75% of the Net Proceeds from such Asset Sale are applied (in any manner otherwise permitted by this Indenture) to one or more of the following purposes in such combination as the Company shall elect: (a) an investment in another asset or business in the same line of business as, or a line of business similar to that of, the line of business of the Company and its Restricted Subsidiaries at the time of the Asset Sale; provided that such investment occurs on or prior to the 365th day following the date of such Asset Sale (the "Asset Sale Disposition Date"); (b) to reimburse the Company or its Subsidiaries for expenditures made, and costs incurred, to repair, rebuild, replace or restore property subject to loss, damage or taking to the extent that the Net Proceeds consist of insurance proceeds received on account of such loss, damage or taking; (c) the purchase, redemption or other prepayment or repayment of outstanding Senior Indebtedness of the Company or Indebtedness of the Company's Restricted Subsidiaries on or prior to the 365th day following the Asset Sale Disposition Date; or (d) an Offer expiring on or prior to the Purchase Date (as defined herein). In addition, the Company may not, and may not permit any Restricted Subsidiary to, directly or indirectly, consummate an Asset Sale unless at least 75% of the consideration thereof received by the Company or such Restricted Subsidiary is in the form of cash, cash equivalents or marketable securities; provided that, solely for purposes of calculating such 75% of the consideration, the amount of (x) any liabilities (as shown on the Company's or such Restricted Subsidiary's most recent balance sheet or in the notes thereto, excluding contingent liabilities and trade payables) of the Company or any Restricted Subsidiary (other than liabilities that are by their terms subordinated to the Notes) that are assumed by the transferee of any such assets and (y) any notes or other obligations received by the Company or any such Restricted Subsidiary from such transferee that are promptly, but in no event more than 30 days after receipt, in converted by the Company or such Restricted Subsidiary into cash (to the extent of the cash received), shall be deemed to be cash and cash equivalents for purposes of this provision. Any Net Proceeds from any given month, by Borrower or any of its Subsidiaries of any Net Asset Sale Proceeds (that are not applied or invested as hereinafter defined) provided in excess the first sentence of this paragraph shall constitute "Excess Proceeds." When the aggregate amount of Budgeted Expenses Excess Proceeds exceeds $10,000,000 (as defined in Section 15(e) hereof) as set forth in the most recent Budget (as defined in Section 15(e)) required to be delivered pursuant to Section 15(e) hereof, Borrower shall prepay the Forbearance Period Advances as set forth in Section 3(i) hereof in such date being an aggregate amount equal to such excess amount; provided, that (A) such Net "Asset Sale Proceeds Trigger Date"), the Company shall make an Offer to all holders of Notes to purchase the maximum principal amount of the Notes then outstanding that may be deposited directly by the payee thereof into a deposit account held by Borrower at Amegy Bank, N.A. and (B) if, within 30 days purchased out of Borrower’s receipt of such Net Asset Sale Excess Proceeds, Borrower has not paid one or more such Budgeted Expenses at an offer price in an aggregate amount cash equal to 100% of principal amount thereof, plus any accrued and unpaid interest and Liquidated Damages, if any, to the Purchase Date, in accordance with the procedures set forth in this Indenture. Notwithstanding the foregoing, to the extent that any or all of the Net Proceeds of an Asset Sale is prohibited or delayed by applicable local law from being repatriated to the United States, the portion of such Net Proceeds so affected will not be required to be applied as described in this or the preceding paragraph, but may be retained for so long, but only for so long, as the applicable local law prohibits repatriation to the United States. To the extent that any Excess Proceeds remain after completion of an Offer, the Company may use such remaining amount for general corporate purposes. If the aggregate principal amount of Notes surrendered by holders thereof exceeds the amount of such proceeds not otherwise required Excess Proceeds, the Trustee shall select the Notes to prepay the Forbearance Period Advances, then Borrower shall prepay the Forbearance Period Advances as set forth in Section 3(i) hereof in be purchased on a pro rata basis. Upon completion of an amount equal to the amount not so paid. “Net Asset Sale Proceeds” means, with respect to any Asset Sale (as hereinafter defined), an amount equal to: (1) cash payments received by Borrower or any of its Subsidiaries from such Asset Sale, minus (2) any bona fide direct costs and expenses incurred in connection with such Asset Sale to the extent paid or payable to non-Affiliates, including (x) income or gains taxes payable or reasonably estimated to be payable by the seller as a result of any gain recognized in connection with such Asset Sale during the tax period the sale occurs, (y) payment of the obligations (other than the Loans) secured by a Lien on the assets in question, which is required to be repaid under the terms thereof as a result of such Asset Sale, and (z) a reasonable reserve for any adjustments in respect to sale price of such assets and any indemnification payments (fixed or contingent) attributable to seller’s indemnities and representations and warranties to purchaser in respect of such Asset Sale undertaken by Borrower or any of its Subsidiaries in connection with such Asset Sale; provided that upon release of any such reserveOffer, the amount released of Excess Proceeds shall be considered Net Asset Sale Proceeds). “Asset Sale” means a sale, lease or sublease (as lessor or sublessor), sale and leaseback, assignment, conveyance, transfer, license or other disposition to, or any exchange of property with, any Person (other than to or with a Credit Party), in one transaction or a series of transactions, of all or any part of any Credit Party’s businesses, assets or properties of any kind, whether real, personal, or mixed and whether tangible or intangible, whether now owned or hereafter acquired, leased or licensed, including, without limitation, the capital stock of any Credit Party, other than inventory or other assets sold or leased, or cash or cash equivalents disposed of, in each case, in the ordinary course of business. For purposes of clarification, “Asset Sale” shall (i) include (x) the sale or other disposition for value of any contracts or (y) the early termination or modification of any contract resulting in the receipt by any Credit Party of a cash payment or other consideration in exchange for such event (other than payments in the ordinary course of business for accrued and unpaid amounts due through the date of termination or modification) and (ii) exclude any taking or other disposition by means of power of eminent domain, condemnation or similar power, threat or rightreset at zero.
Appears in 1 contract
Sources: Indenture (Jackson Products Inc)
Asset Sales. No later than the first business day following the date of receiptThe Company shall not, in any given month, by Borrower or and shall not permit any of its Restricted Subsidiaries to consummate an Asset Sale unless (i) the Company (or the Restricted Subsidiary, as the case may be) receives consideration at the time of such Asset Sale at least equal to the fair market value of the assets or Equity Interests issued or sold or otherwise disposed of and (ii) at least 80% of the consideration received therefor by the Company or such Restricted Subsidiary is in the form of cash; 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 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 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 by the Company or such Restricted Subsidiary into cash (to the extent of the cash received), shall be deemed to be cash for purposes of this provision. Within 270 days after receipt of any Net Proceeds from an Asset Sale, the Company may apply such Net Proceeds, at its option, (a) to repay or cause to be repaid Senior Debt, or (b) to the acquisition of a majority of the assets of, or a majority of the Voting Stock of, another Permitted Business, the making of a capital expenditure or the acquisition of other long-term assets that are used or useful in a Permitted Business. Pending the final application of any such Net Proceeds, the Company may temporarily reduce revolving credit borrowings or otherwise invest such Net Proceeds in any manner that is not prohibited by this Indenture. Any Net Proceeds from such Asset Sale Proceeds (that are not finally applied or invested as hereinafter defined) provided in excess the first sentence of this paragraph will be deemed to constitute "Excess Proceeds." When the aggregate amount of Budgeted Expenses (as defined in Section 15(e) hereof) as set forth in Excess Proceeds --------------- exceeds $10.0 million, the most recent Budget (as defined in Section 15(e)) Company shall be required to be delivered pursuant make an offer to Section 15(eall Holders of Notes (including Additional Notes) hereof, Borrower shall prepay the Forbearance Period Advances as and all holders of pari passu Indebtedness containing provisions similar to those set forth in Section 3(i3.09 hereof with respect to offers to purchase or redeem with the proceeds of sales of assets (an "Asset Sale Offer") hereof in an aggregate to purchase a principal amount of Notes and ---------------- such other Indebtedness equal to such excess amount; provided, that (A) such Net Asset Sale Proceeds shall be deposited directly by the payee thereof into a deposit account held by Borrower at Amegy Bank, N.A. and (B) if, within 30 days of Borrower’s receipt of such Net Asset Sale Proceeds, Borrower has not paid one or more such Budgeted Expenses in an aggregate amount equal to 100% of the amount of such proceeds not otherwise required Excess Proceeds, at a purchase price equal to prepay the Forbearance Period Advancesamount in cash and Common Stock payable by the Company pursuant to Section 3.07 as if such Notes were being redeemed by the Company on the date of the applicable Asset Sale, then Borrower shall prepay in accordance with the Forbearance Period Advances as procedures set forth in Section 3(i) 3.09 hereof and in an amount equal to the amount not so paid. “Net Asset Sale Proceeds” means, documentation with respect to such other Indebtedness, respectively. To the extent that any Excess Proceeds remain after consummation of an Asset Sale Offer (as hereinafter defined), an amount equal to: (1) cash payments received by Borrower or any including that part of its Subsidiaries from such Asset Sale, minus (2) any bona fide direct costs and expenses incurred the Excess Proceeds corresponding to the portion of the purchase price payable in connection with Common Stock under such Asset Sale to Offer), the extent paid or payable to non-Affiliates, including (x) income or gains taxes payable or reasonably estimated to be payable Company may use such Excess Proceeds for any purpose not otherwise prohibited by this Indenture. If the seller as a result aggregate principal amount of any gain recognized in connection with Notes and such other Indebtedness tendered into such Asset Sale during Offer surrendered by Holders thereof exceeds the tax period amount of Excess Proceeds allocable to the sale occurs, (y) payment repurchase of the obligations Notes (in relation to any other than pari passu Indebtedness containing provisions similar to the Loans) secured by a Lien on provisions of Section 3.09 hereof), the assets in question, which is required Trustee shall select the Notes and such other Indebtedness to be repaid under the terms thereof as purchased on a result pro rata basis. Upon completion of such Asset Sale, and (z) a reasonable reserve for any adjustments in respect offer to sale price of such assets and any indemnification payments (fixed or contingent) attributable to seller’s indemnities and representations and warranties to purchaser in respect of such Asset Sale undertaken by Borrower or any of its Subsidiaries in connection with such Asset Sale; provided that upon release of any such reservepurchase, the amount released of Excess Proceeds shall be considered Net Asset Sale Proceeds)reset at zero. “Asset Sale” means a sale, lease or sublease (as lessor or sublessor), sale and leaseback, assignment, conveyance, transfer, license or other disposition to, or any exchange of property with, any Person (other than to or with a Credit Party), in one transaction or a series of transactions, of all or any part In determining the fair market value of any Credit Party’s businesses, assets or properties of any kindEquity Interests issued, whether real, personal, or mixed and whether tangible or intangible, whether now owned or hereafter acquired, leased or licensed, including, without limitation, the capital stock of any Credit Party, other than inventory or other assets sold or leased, or cash or cash equivalents otherwise disposed of, such determination shall be evidenced by a resolution of the Board of Directors set forth in each case, in an Officers' Certificate delivered to the ordinary course of business. For purposes of clarification, “Asset Sale” shall (i) include (x) the sale or other disposition for Trustee if such fair market value of any contracts or (y) the early termination or modification of any contract resulting in the receipt by any Credit Party of a cash payment or other consideration in exchange for such event (other than payments in the ordinary course of business for accrued and unpaid amounts due through the date of termination or modification) and (ii) exclude any taking or other disposition by means of power of eminent domain, condemnation or similar power, threat or rightexceeds $15.0 million.
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Sources: Indenture (Timco Engine Center Inc)
Asset Sales. No later than the first business day third Business Day following the date of receipt, in any given month, receipt by the Borrower or any of its Subsidiaries of any Net Asset Sale Proceeds of any Asset Sale (as hereinafter defined) in excess other than the proceeds of any Disposition of all or substantially all of the aggregate amount assets of Budgeted Expenses (the Borrower and its Subsidiaries taken as defined in a whole, which are governed by the “Change of Control” provisions of Section 15(e8.01(k) and/or Section 7.04 hereof) as set forth in ), the most recent Budget (as defined in Section 15(e)) required to be delivered pursuant to Section 15(e) hereof, Borrower shall prepay the Forbearance Period Advances Loans as set forth in Section 3(i2.05(b)(viii) hereof below in an aggregate amount equal to such excess amount; provided, that (A) such Net the Applicable Asset Sale Proceeds shall be deposited directly by the payee thereof into a deposit account held by Borrower at Amegy Bank, N.A. and (B) if, within 30 days of Borrower’s receipt Percentage of such Net Asset Sale Proceeds; provided that, so long as no Default or Event of Default shall have occurred and be continuing, no such prepayment shall be required upon the receipt of any Net Asset Sale Proceeds equal to or less than the Permitted Reinvestment Amount if, within 365 days after the receipt thereof, the Borrower has not paid (at its option and either directly or through one or more of its Subsidiaries) applies such Budgeted Expenses Net Sale Asset Proceeds to (1) acquire all or substantially all of the assets of, or a majority of the voting Equity Interests of, a Permitted Business, (2) make a capital expenditure in a Permitted Business or (3) acquire other long-term assets that are used or useful in a Permitted Business. If any Net Asset Sale Proceeds other than the Applicable Asset Sale Percentage thereof is not paid to other Senior Lenders pursuant to provisions requiring the mandatory prepayment, or mandatory offer to repurchase or redeem, Indebtedness owed to such Senior Lenders, then (unless such proceeds are reinvested in accordance with the proviso in the immediately preceding sentence) the Borrower shall prepay the Loans as set forth in Section 2.05(b)(viii) below in an aggregate amount equal to 100% of the amount of such proceeds not otherwise required to prepay the Forbearance Period Advances, then Borrower shall prepay the Forbearance Period Advances as set forth in Section 3(i) hereof in an amount equal to the amount not so paid. “Net Remaining Asset Sale Proceeds” means, with respect to any Asset Sale (as hereinafter defined), an amount equal to: (1) cash payments received by Proceeds no later than the third Business Day following the date on which it is determined that the Borrower or any of its Subsidiaries from is not required to prepay, purchase or redeem any portion of the Indebtedness held by such Asset Sale, minus (2) any bona fide direct costs and expenses incurred in connection Senior Lenders with such Asset Sale to the extent paid or payable to non-Affiliates, including (x) income or gains taxes payable or reasonably estimated to be payable by the seller as a result of any gain recognized in connection with such Asset Sale during the tax period the sale occurs, (y) payment of the obligations (other than the Loans) secured by a Lien on the assets in question, which is required to be repaid under the terms thereof as a result of such Asset Sale, and (z) a reasonable reserve for any adjustments in respect to sale price of such assets and any indemnification payments (fixed or contingent) attributable to seller’s indemnities and representations and warranties to purchaser in respect of such Asset Sale undertaken by Borrower or any of its Subsidiaries in connection with such Asset Sale; provided that upon release of any such reserve, the amount released shall be considered Net Asset Sale Proceeds). “Asset Sale” means a sale, lease or sublease (as lessor or sublessor), sale and leaseback, assignment, conveyance, transfer, license or other disposition to, or any exchange of property with, any Person (other than to or with a Credit Party), in one transaction or a series of transactions, of all or any part of any Credit Party’s businesses, assets or properties of any kind, whether real, personal, or mixed and whether tangible or intangible, whether now owned or hereafter acquired, leased or licensed, including, without limitation, the capital stock of any Credit Party, other than inventory or other assets sold or leased, or cash or cash equivalents disposed of, in each case, in the ordinary course of business. For purposes of clarification, “Asset Sale” shall (i) include (x) the sale or other disposition for value of any contracts or (y) the early termination or modification of any contract resulting in the receipt by any Credit Party of a cash payment or other consideration in exchange for such event (other than payments in the ordinary course of business for accrued and unpaid amounts due through the date of termination or modification) and (ii) exclude any taking or other disposition by means of power of eminent domain, condemnation or similar power, threat or right.
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Asset Sales. No later than the first business day Business Day following the date of receipt, in any given month, receipt by Borrower Company or any of its Subsidiaries of any Net Asset Sale Proceeds (as hereinafter defined) in excess of the aggregate amount of Budgeted Expenses (as defined in Section 15(e) hereof) as set forth in the most recent Budget (as defined in Section 15(e)) required to be delivered pursuant to Section 15(e) hereofProceeds, Borrower Company shall prepay the Forbearance Period Advances Loans and/or the Revolving Commitments shall be permanently reduced as set forth in Section 3(i2.15(b) hereof in an aggregate amount equal to such excess amountNet Asset Sale Proceeds; provided, (i) so long as no Default or Event of Default shall have occurred and be continuing, and (ii) to the extent that aggregate Net Asset Sale Proceeds from the Closing Date through the applicable date of determination do not exceed $10,000,000 in the aggregate, Company shall have the option, directly or through one or more of its Subsidiaries, to invest or commit to invest Net Asset Sale Proceeds within one hundred eighty (A180) days of receipt thereof in long-term productive assets of the general type used in the business of Company and its Subsidiaries; provided further, pending any such investment all such Net Asset Sale Proceeds shall be deposited directly applied to prepay Revolving Loans to the extent outstanding (without a reduction in Revolving Commitments); provided, further that, with respect to an Asset Sale of any asset owned by a Foreign Subsidiary, any Net Asset Sale Proceeds in respect thereof which have not been reinvested or committed to be reinvested (the payee thereof into "Unreinvested Net Asset Sale Proceeds") shall be applied (i) first, to the extent such Unreinvested Net Asset Sale Proceeds may be repatriated to the United States without in the reasonable judgment of the Company resulting in a deposit account held by Borrower at Amegy Bankmaterial tax liability to Company in relation to the amount of proceeds to be repatriated, N.A. and to prepay the Loans and/or permanently reduce the Revolving Commitments as set forth in Section 2.15(b), (Bii) ifsecond, within 30 days to the extent of Borrower’s receipt any remaining portion of such Unreinvested Net Asset Sale Proceeds, Borrower has not paid one or more such Budgeted Expenses in an aggregate amount equal to 100% of finance the amount general corporate purposes of such proceeds Foreign Subsidiary so long as the aggregate of all such amounts so applied by all Foreign Subsidiaries with respect to Asset Sales consummated after the Closing Date does not otherwise required exceed $5,000,000, and (iii) third, to the extent of any remaining portion of such Unreinvested Net Asset Sale Proceeds, to prepay the Forbearance Period Advances, then Borrower shall prepay Loans and/or reduce the Forbearance Period Advances Revolving Commitments as set forth in Section 3(i) hereof in an amount equal to the amount not so paid2.15(b). “Concurrently with any determination by Company that any portion of any Unreinvested Net Asset Sale Proceeds” meansProceeds of any Foreign Subsidiary will be applied as described in clause (ii) of the immediately preceding proviso, with respect Company shall deliver to any Agent an Officers' Certificate (w) certifying that such Unreinvested Net Asset Sale (as hereinafter defined), an amount equal to: (1) cash payments received by Borrower or any of its Subsidiaries from such Asset Sale, minus (2) any bona fide direct costs and expenses incurred in connection with such Asset Sale Proceeds cannot be repatriated to the extent paid or payable United States without resulting in a material tax liability to non-Affiliates, including (x) income or gains taxes payable or reasonably estimated to be payable by Company and the seller as a result of any gain recognized in connection with such Asset Sale during the tax period the sale occursreasons therefore, (y) payment specifying the amount of the obligations (other than the Loans) secured by a Lien on the assets in question, which is required Unreinvested Net Asset Sale Proceeds to be repaid under retained by such Foreign Subsidiary as described in said clause (ii) and the terms thereof as a result cumulative aggregate amount of all such Unreinvested Net Asset Sale, Sale Proceeds so retained by all Foreign Subsidiaries since the date of this Agreement and (z) a reasonable reserve for any adjustments in respect to sale price demonstrating the derivation of such assets and any indemnification payments (fixed or contingent) attributable to seller’s indemnities and representations and warranties to purchaser in respect of such Asset Sale undertaken by Borrower or any of its Subsidiaries in connection with such Asset Sale; provided that upon release of any such reserve, the amount released shall be considered Unreinvested Net Asset Sale Proceeds). “Proceeds of the correlative Asset Sale” means a sale, lease or sublease (as lessor or sublessor), sale and leaseback, assignment, conveyance, transfer, license or other disposition to, or any exchange of property with, any Person (other than to or with a Credit Party), in one transaction or a series of transactions, of all or any part of any Credit Party’s businesses, assets or properties of any kind, whether real, personal, or mixed and whether tangible or intangible, whether now owned or hereafter acquired, leased or licensed, including, without limitation, Sale from the capital stock of any Credit Party, other than inventory or other assets sold or leased, or cash or cash equivalents disposed of, in each case, in the ordinary course of business. For purposes of clarification, “Asset Sale” shall (i) include (x) the sale or other disposition for value of any contracts or (y) the early termination or modification of any contract resulting in the receipt by any Credit Party of a cash payment or other consideration in exchange for such event (other than payments in the ordinary course of business for accrued and unpaid amounts due through the date of termination or modification) and (ii) exclude any taking or other disposition by means of power of eminent domain, condemnation or similar power, threat or rightgross sales price thereof.
Appears in 1 contract
Sources: Credit and Guaranty Agreement (Amscan Holdings Inc)
Asset Sales. No later than the first business day following fifth (5th) Business Day after the date Borrower’s or a Restricted Subsidiary’s receipt of receiptany Net Proceeds (i) in excess of $5,000,000 from any Asset Sale, the Borrower shall make an offer to the Lenders to prepay the Loans in an aggregate principal amount equal to such portion of such Net Proceeds as permitted hereunder, at a price equal to 100.0% of the principal amount thereof, plus accrued and unpaid interest and additional interest, if any, plus (without duplication of any given month, amounts required to be paid under Section 2.8) the applicable MOIC Amount (provided that in the case of the Long Ridge Sale or any other Asset Sale by Borrower Ohio River Partners Holdco LLC or any of its Restricted Subsidiaries, the accrued and unpaid interest and additional interest, if any, and the applicable MOIC Amount shall be paid from such Net Proceeds and credited against such amount of Loans required to be prepaid), if any; provided that, so long as no Event of Default under Sections 7.1(a)(i), (vii) or (viii) shall have occurred and be continuing at the time the Net Proceeds from any such Asset Sales (other than the Long Ridge Sale) are received, the Borrower shall have the option, directly or through one or more of its Restricted Subsidiaries, to reinvest such Net Proceeds to the extent (x) such Net Proceeds are so reinvested within ninety (90) days of receipt thereof, or (y) the Borrower or one or more of its Restricted Subsidiaries have committed to reinvest such Net Proceeds during such ninety (90)-day period and such Net Proceeds are so reinvested within ninety (90) days after the expiration of the initial ninety (90)-day period, in assets useful in the business of the Borrower and its Restricted Subsidiaries (or to use such Net Proceeds to replace assets Disposed of in such Asset Sale); provided, further, that (x) any Net Asset Sale Proceeds not so reinvested shall be applied to the prepayment of the Loans as set forth in this Section 2.11(a) at the end of such reinvestment period and (as hereinafter definedy) in excess of the aggregate amount of Budgeted Expenses (as defined in any Net Proceeds reinvested pursuant to this Section 15(e2.11(a) hereofand Section 2.11(b) as set forth in below shall not exceed $50,000,000. Notwithstanding the most recent Budget (as defined in Section 15(e)) foregoing, the Borrower shall not be required to be delivered pursuant cause any Restricted Subsidiary to Section 15(e) hereof, Borrower shall prepay pay cash distributions with the Forbearance Period Advances as set forth in Section 3(i) hereof in an aggregate amount equal to such excess amount; provided, that (A) such Net Asset Sale Proceeds shall be deposited directly by the payee thereof into a deposit account held by Borrower at Amegy Bank, N.A. and (B) if, within 30 days of Borrower’s receipt of such Net Asset Sale Proceeds, Borrower has not paid one or more such Budgeted Expenses in an aggregate amount equal to 100% of the amount of such proceeds not otherwise required to prepay the Forbearance Period Advances, then Borrower shall prepay the Forbearance Period Advances as set forth in Section 3(i) hereof in an amount equal to the amount not so paid. “Net Asset Sale Proceeds” means, with respect to from any Asset Sale (as hereinafter defined), an amount equal to: (1) cash payments received by Borrower or any of its Subsidiaries from such Asset Sale, minus (2) any bona fide direct costs and expenses incurred in connection with such Asset Sale to the extent paid or payable to non-Affiliates, including (x) income or gains taxes payable or reasonably estimated to be payable that such distributions are not permitted by the seller as a result terms of any gain recognized in connection with such Asset Sale during the tax period the sale occurs, (y) payment of the obligations (other than the Loans) secured by a Lien on the assets in question, which is required to be repaid under the terms thereof as a result of such Asset Sale, and (z) a reasonable reserve for any adjustments in respect to sale price of such assets and any indemnification payments (fixed or contingent) attributable to seller’s indemnities and representations and warranties to purchaser in respect of such Asset Sale undertaken by Borrower or any of its Subsidiaries in connection with such Asset Sale; provided that upon release of any such reserve, the amount released shall be considered Net Asset Sale Proceeds). “Asset Sale” means a sale, lease or sublease (as lessor or sublessor), sale and leaseback, assignment, conveyance, transfer, license or other disposition to, or any exchange of property with, any Person (other than to or with a Credit Party), in one transaction or a series of transactions, of all or any part of any Credit Party’s businesses, assets or properties of any kind, whether real, personal, or mixed and whether tangible or intangible, whether now owned or hereafter acquired, leased or licensed, including, without limitation, the capital stock of any Credit Party, other than inventory or other assets sold or leased, or cash or cash equivalents disposed of, in each case, in the ordinary course of business. For purposes of clarification, “Asset Sale” shall (i) include (x) the sale or other disposition for value of any contracts or (y) the early termination or modification of any contract resulting in existence on the receipt by Closing Date to which such Restricted Subsidiary is bound or subject to (including any Credit Party contract governing Indebtedness or preferred equity of a cash payment or other consideration in exchange for such event (other than payments in the ordinary course of business for accrued and unpaid amounts due through the date of termination or modification) and Restricted Subsidiary), (ii) exclude applicable Organizational Documents, applicable governmental approvals or applicable Law or (iii) any taking contract governing Indebtedness not prohibited by Section 6.3, so long as in the case of Refinancing Indebtedness, such contract does not include any limitation on cash distributions by any Restricted Subsidiary that is materially more restrictive than the limitations set forth in the existing debt facility, loan agreement or other disposition by means of power of eminent domain, condemnation or similar power, threat or rightdebt document being refinanced thereby.
Appears in 1 contract