Asset Sales. The Company shall not, and shall not permit any of its Restricted Subsidiaries to, consummate an Asset Sale unless (i) 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 (as determined in good faith by the Company); (ii) 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 liabilities (as shown on the Company’s or such Restricted Subsidiary’s most recent balance sheet or in the footnotes thereto, or if incurred or accrued subsequent to the date of such balance sheet, such liabilities that would have been shown on the Company’s or such Restricted Subsidiary’s balance or the footnotes thereto if such incurrence or accrual had taken place on the date of such balance sheet, as determined by the Company) of the Company or any such Restricted Subsidiary (other than liabilities that are by their terms subordinated to the Notes) that are assumed by the transferee of any such assets; (b) any securities, notes or other obligations received by the Company or any such Restricted Subsidiary from such transferee that are converted by the Company or such Restricted Subsidiary into cash within 180 days of the receipt thereof (to the extent of the cash received); and (c) any Designated Non-cash 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 Non-cash Consideration received pursuant to this clause (c) after December 14, 2010 that is at that time outstanding, not to exceed the greater of $150 million and 5% 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, in each of (a), (b) and (c) above, be deemed to be cash for the purposes of this provision or for purposes of the second paragraph of this Section 4.10; and
Appears in 4 contracts
Samples: Indenture (TransDigm Group INC), Indenture (TransDigm Group INC), Indenture (TransDigm Group INC)
Asset Sales. (a) The Company shall not, and shall not permit any of its Restricted Subsidiaries to, consummate cause, make or suffer to exist an Asset Sale unless Sale, unless:
(i1) the Company or the applicable 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 (as determined in good faith by the Company); (ii) a Permitted Asset Swap, at least 75% of the consideration therefor received by the Company or the such Restricted Subsidiary, as the case may be, from such Asset Sale shall be is in the form of cash or Cash Equivalents; provided that the amount of:
(aA) any liabilities (as shown on the Company’s or such Restricted Subsidiary’s most recent balance sheet or in the footnotes thereto, or if incurred or accrued subsequent to the date of such balance sheet, such liabilities that would have been shown on the Company’s or such Restricted Subsidiary’s balance or the footnotes thereto if such incurrence or accrual had taken place on the date of such balance sheet, as determined by the Company) of the Company or any such Restricted Subsidiary (Subsidiary, other than liabilities that are by their terms subordinated to the Notes) , that are assumed by the transferee of any such assets; assets and for which the Company and all of its Restricted Subsidiaries have been validly released by all creditors in writing,
(bB) any securities, notes or other obligations 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 the receipt thereof (to the extent of the cash received); and ) within 180 days following the closing of such Asset Sale, and
(cC) any Designated Non-cash Consideration received by the Company or any of its such Restricted Subsidiaries 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) after December 14, 2010 that is at that time outstanding, not to exceed the greater of $150 million and 52.5% of Total Assets at the time of the receipt of such Designated Non-cash Consideration (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 for purposes of this provision and for no other purpose.
(b) Within 450 days after the receipt of any Net Proceeds of any Asset Sale, the Company or such Restricted Subsidiary, at its option, may apply the Net Proceeds from such Asset Sale,
(1) to permanently reduce:
(A) First Lien Obligations (including Obligations under the Senior Credit Facilities and the Existing Secured Notes), shalland to correspondingly reduce commitments with respect thereto;
(B) Obligations under Senior Indebtedness that is secured by a Lien, which Lien is permitted by this Indenture, and to correspondingly reduce commitments with respect thereto; or
(C) Indebtedness of a Restricted Subsidiary that is not a Guarantor, other than Indebtedness owed to the Company or another Restricted Subsidiary;
(2) to make (a) an Investment in any one or more businesses, provided that such Investment in any business is in the form of the acquisition of Capital Stock and results in the Company or another of its Restricted Subsidiaries, as the case may be, owning an amount of the Capital Stock of such business such that it constitutes a Restricted Subsidiary, (b) 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 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 another of its Restricted Subsidiaries, as the case may be, owning an amount of the Capital Stock of such business such that it constitutes a Restricted Subsidiary, (b) properties or (c) acquisitions of other assets that, in each of (a), (b) and (c), replace the businesses, properties and/or assets that are the subject of such Asset Sale; provided that, in the case of clauses (2) and (3) above, a binding commitment shall be treated as a permitted application of the Net Proceeds from the date of such commitment so long as the Company or such other Restricted Subsidiary enters into such commitment with the good faith expectation that such Net Proceeds will be applied to satisfy such commitment within 180 days of such commitment (an “Acceptable Commitment”) and, in the event any Acceptable Commitment is later cancelled or terminated for any reason before the Net Proceeds are applied in connection therewith, the Company or such Restricted Subsidiary enters into another Acceptable Commitment (a “Second Commitment”) within 180 days of such cancellation or termination; provided further that if any Second Commitment is later cancelled or terminated for any reason before such Net Proceeds are applied, then such Net Proceeds shall constitute Excess Proceeds.
(c) Any Net Proceeds from the Asset Sale that are not invested or applied as provided and within the time period set forth in Section 4.10(b) hereof will be deemed to constitute “Excess Proceeds.” When the aggregate amount of Excess Proceeds exceeds $100.0 million, the Issuer shall make an offer to all Holders of the Notes and, if required by the terms of any other Indebtedness constituting First Lien Obligations, to the holders of such other First Lien Obligations (an “Asset Sale Offer”), to purchase the maximum aggregate principal amount of the Notes and such other First Lien Obligations that is at least $2,000 or an integral multiple of $1,000 thereafter that may be purchased out of the Excess Proceeds at an offer price in cash in an amount equal to 100% of the principal amount thereof (or accreted value, if less), plus accrued and unpaid interest, if any, to the date fixed for the purposes closing of such offer, in accordance with the procedures set forth in this Indenture. The Issuer will commence an Asset Sale Offer with respect to Excess Proceeds within ten Business Days after the date that Excess Proceeds exceed $100.0 million by sending the notice required pursuant to the terms of this provision or for purposes Indenture, with a copy to the Trustee. The Issuer may satisfy the foregoing obligations with respect to any Net Proceeds from an Asset Sale by making an Asset Sale Offer with respect to such Net Proceeds prior to the expiration of the second paragraph relevant 450 days or with respect to Excess Proceeds of $100.0 million or less. To the extent that the aggregate amount of Notes and such other First Lien Obligations tendered pursuant to an Asset Sale Offer is less than the Excess Proceeds, the Issuer may use any remaining Excess Proceeds for general corporate purposes, subject to other covenants contained in this Indenture. If the aggregate principal amount of Notes or the other First Lien Obligations surrendered by such holders thereof exceeds the amount of Excess Proceeds, the Trustee shall select the Notes and such other First Lien Obligations to be purchased on a pro rata basis based on the accreted value or principal amount of the Notes or such other First Lien Obligations tendered. Upon completion of any such Asset Sale Offer, the amount of Excess Proceeds that resulted in the Asset Sale Offer shall be reset to zero.
(d) Pending the final application of any Net Proceeds pursuant to this Section 4.10; and, the holder of such Net Proceeds may apply such Net Proceeds temporarily to reduce Indebtedness outstanding under a revolving credit facility or otherwise invest such Net Proceeds in any manner not prohibited by this Indenture.
(e) The Issuer will comply with the requirements of Rule 14e-1 under the Exchange Act and any other securities laws and regulations thereunder to the extent such laws or regulations are applicable in connection with the repurchase of the Notes pursuant to an Asset Sale Offer. To the extent that the provisions of any securities laws or regulations conflict with the provisions of this Indenture, the Issuer will comply with the applicable securities laws and regulations and shall not be deemed to have breached its obligations described in this Indenture by virtue thereof.
Appears in 3 contracts
Samples: Indenture (NXP Semiconductors N.V.), Indenture (Freescale Semiconductor, Ltd.), First Supplemental Indenture (Freescale Semiconductor, Ltd.)
Asset Sales. The Company (a) Holdings III shall not, and shall not permit any of its Restricted Subsidiaries to, consummate cause, make or suffer to exist an Asset Sale unless Sale, unless:
(i1) the Company Holdings III or the applicable 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 (as determined in good faith by the Company); (ii) a Permitted Asset Swap, at least 75% of the consideration therefor received by the Company Holdings III or the such Restricted Subsidiary, as the case may be, from such Asset Sale shall be is in the form of cash or Cash Equivalents; provided that the amount of:
(aA) any liabilities (as shown on the CompanyHoldings III’s or such Restricted Subsidiary’s most recent balance sheet or in the footnotes thereto, or if incurred or accrued subsequent to the date ) of such balance sheet, such liabilities that would have been shown on the Company’s Holdings III or such Restricted Subsidiary’s balance or the footnotes thereto if such incurrence or accrual had taken place on the date of such balance sheet, as determined by the Company) of the Company or any such Restricted Subsidiary (other than liabilities that are by their terms subordinated to the Notes) , that are assumed by the transferee of any such assets; assets and for which Holdings III and all of its Restricted Subsidiaries have been validly released by all creditors in writing,
(bB) any securities, notes or other obligations securities received by the Company Holdings III or any such Restricted Subsidiary from such transferee that are converted by the Company Holdings III or such Restricted Subsidiary into cash within 180 days of the receipt thereof (to the extent of the cash received); and ) within 180 days following the closing of such Asset Sale, and
(cC) any Designated Non-cash Consideration received by the Company Holdings III or any of its such Restricted Subsidiaries 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) after December 14, 2010 that is at that time outstanding, not to exceed the greater of $150 million and 52.5% of Total Assets at the time of the receipt of such Designated Non-cash Consideration (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 for purposes of this provision and for no other purpose.
(b) Within 450 days after the receipt of any Net Proceeds of any Asset Sale, Holdings III or such Restricted Subsidiary, at its option, may apply the Net Proceeds from such Asset Sale,
(1) to permanently reduce:
(A) First Lien Obligations (including Obligations under the Senior Credit Facilities and the Existing Secured Notes), shalland to correspondingly reduce commitments with respect thereto;
(B) Obligations under Senior Indebtedness that is secured by a Lien, which Lien is permitted by this Indenture, and to correspondingly reduce commitments with respect thereto; or
(C) Indebtedness of a Restricted Subsidiary that is not a Guarantor, other than Indebtedness owed to Holdings III or another Restricted Subsidiary;
(2) to make (a) an Investment in any one or more businesses, provided that such Investment in any business is in the form of the acquisition of Capital Stock and results in Holdings III or another of its Restricted Subsidiaries, as the case may be, owning an amount of the Capital Stock of such business such that it constitutes a Restricted Subsidiary, (b) 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 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 Holdings III or another of its Restricted Subsidiaries, as the case may be, owning an amount of the Capital Stock of such business such that it constitutes a Restricted Subsidiary, (b) properties or (c) acquisitions of other assets that, in each of (a), (b) and (c), replace the businesses, properties and/or assets that are the subject of such Asset Sale; provided that, in the case of clauses (2) and (3) above, a binding commitment shall be treated as a permitted application of the Net Proceeds from the date of such commitment so long as Holdings III or such other Restricted Subsidiary enters into such commitment with the good faith expectation that such Net Proceeds will be applied to satisfy such commitment within 180 days of such commitment (an “Acceptable Commitment”) and, in the event any Acceptable Commitment is later cancelled or terminated for any reason before the Net Proceeds are applied in connection therewith, Holdings III or such Restricted Subsidiary enters into another Acceptable Commitment (a “Second Commitment”) within 180 days of such cancellation or termination; provided further that if any Second Commitment is later cancelled or terminated for any reason before such Net Proceeds are applied, then such Net Proceeds shall constitute Excess Proceeds.
(c) Any Net Proceeds from the Asset Sale that are not invested or applied as provided and within the time period set forth in Section 4.10(b) hereof will be deemed to constitute “Excess Proceeds.” When the aggregate amount of Excess Proceeds exceeds $100.0 million, the Issuer shall make an offer to all Holders of the Notes and, if required by the terms of any other Indebtedness constituting First Lien Obligations, to the holders of such other First Lien Obligations (an “Asset Sale Offer”), to purchase the maximum aggregate principal amount of the Notes and such other First Lien Obligations that is at least $2,000 or an integral multiple of $1,000 thereafter that may be purchased out of the Excess Proceeds at an offer price in cash in an amount equal to 100% of the principal amount thereof (or accreted value, if less), plus accrued and unpaid interest, if any, to the date fixed for the purposes closing of such offer, in accordance with the procedures set forth in this Indenture. The Issuer will commence an Asset Sale Offer with respect to Excess Proceeds within ten Business Days after the date that Excess Proceeds exceed $100.0 million by mailing the notice required pursuant to the terms of this provision or for purposes Indenture, with a copy to the Trustee. The Issuer may satisfy the foregoing obligations with respect to any Net Proceeds from an Asset Sale by making an Asset Sale Offer with respect to such Net Proceeds prior to the expiration of the second paragraph relevant 450 days or with respect to Excess Proceeds of $100.0 million or less. To the extent that the aggregate amount of Notes and such other First Lien Obligations tendered pursuant to an Asset Sale Offer is less than the Excess Proceeds, the Issuer may use any remaining Excess Proceeds for general corporate purposes, subject to other covenants contained in this Indenture. If the aggregate principal amount of Notes or the other First Lien Obligations surrendered by such holders thereof exceeds the amount of Excess Proceeds, the Trustee shall select the Notes and such other First Lien Obligations to be purchased on a pro rata basis based on the accreted value or principal amount of the Notes or such other First Lien Obligations tendered. Upon completion of any such Asset Sale Offer, the amount of Excess Proceeds that resulted in the Asset Sale Offer shall be reset to zero.
(d) Pending the final application of any Net Proceeds pursuant to this Section 4.10; and, the holder of such Net Proceeds may apply such Net Proceeds temporarily to reduce Indebtedness outstanding under a revolving credit facility or otherwise invest such Net Proceeds in any manner not prohibited by this Indenture.
(e) The Issuer will comply with the requirements of Rule 14e-1 under the Exchange Act and any other securities laws and regulations thereunder to the extent such laws or regulations are applicable in connection with the repurchase of the Notes pursuant to an Asset Sale Offer. To the extent that the provisions of any securities laws or regulations conflict with the provisions of this Indenture, the Issuer will comply with the applicable securities laws and regulations and shall not be deemed to have breached its obligations described in this Indenture by virtue thereof.
Appears in 3 contracts
Samples: Indenture (Freescale Semiconductor, Ltd.), Indenture (Freescale Semiconductor Holdings I, Ltd.), Indenture (Freescale Semiconductor Inc)
Asset Sales. (1) The Company shall not, and shall not cause or permit any of its Restricted Subsidiaries Subsidiary to, consummate an directly or indirectly, make any Asset Sale unless Sale, unless:
(ia) the Company or the applicable Restricted such Subsidiary, as the case may be, receives consideration at the time of such Asset Sale at least equal to the fair market value Fair Market Value of the assets sold or otherwise disposed of (as determined in good faith by the Company’s Board of Directors (or a committee thereof) and evidenced by a Board Resolution); , and
(iib) at least 75% of such consideration consists of (i) cash or Cash Equivalents, (ii) properties and capital assets to be used in a Related Business, (iii) Capital Stock in a Person engaged in a Related Business that will become a Subsidiary as a result of such Asset Sale or (iv) a combination of cash, Cash Equivalents and such assets.
(2) The amount of any (a) balance sheet liabilities of the Company or any Subsidiary that is actually assumed by the transferee in such Asset Sale and from which the Company and the Subsidiaries are fully and unconditionally released shall be deemed to be cash for purposes of determining the percentage of the consideration received by the Company or the Restricted Subsidiaries in cash or Cash Equivalents and (b) notes, securities or other similar obligations received by the Company or the Subsidiaries from such transferee that are immediately converted, sold or exchanged (or are converted, sold or exchanged within ninety (90) days of the related Asset Sale) by the Company or the Subsidiaries into cash or Cash Equivalents or other assets of the type referred to in clause (ii) or (iii) of Paragraph 6G(1)(b) shall be deemed to be cash, in an amount equal to the net cash proceeds or the Fair Market Value of the Cash Equivalents or other assets of the type referred to in clause (ii) or (iii) of Paragraph 6G(1)(b) realized upon such conversion, sale or exchange for purposes of determining the percentage of the consideration received by the Company or the Subsidiaries in cash or Cash Equivalents.
(3) If at any time any non-cash consideration received by the Company or any Subsidiary, as the case may be, from such in connection with any Asset Sale is converted into or sold or otherwise disposed of for cash (other than interest received with respect to any such non-cash consideration), then such conversion or disposition shall be deemed to constitute an Asset Sale hereunder and the Net Cash Proceeds thereof shall be applied in accordance with the form provisions of this covenant.
(4) The 75% limitation in Paragraph 6G(1)(b) will not apply to any Asset Sale in which the cash or Cash Equivalents; provided Equivalents received therefrom, determined in accordance with the second preceding paragraph, are equal to or greater than the after-tax cash and Cash Equivalents that would have been received therefrom had such provision applied.
(5) The Company or such Subsidiary, as the case may be, may apply an amount ofequal to the Net Cash Proceeds of any Asset Sale within 365 days of receipt thereof to:
(a) any liabilities (as shown on the Company’s or such Restricted Subsidiary’s most recent balance sheet or in the footnotes thereto, or if incurred or accrued subsequent to the date of such balance sheet, such liabilities that would have been shown on the Company’s or such Restricted Subsidiary’s balance or the footnotes thereto if such incurrence or accrual had taken place on the date of such balance sheet, as determined by the Company) of the Company or any such Restricted Subsidiary (other than liabilities that are by their terms subordinated to the Notes) that are assumed by the transferee of any such assetsrepay Indebtedness; or
(b) make an investment in or expenditures for properties or capital assets to be used in a Related Business or make an Investment in any securitiesPerson engaged in a Related Business that, notes as a result of or other obligations received by the Company in connection with such Investment, becomes a Subsidiary. During any period when any Subordinated Notes or any such Restricted Subsidiary from such transferee that Senior Discount Notes are converted by the Company or such Restricted Subsidiary into cash within 180 days of the receipt thereof (outstanding, to the extent all or part of the cash received); and (c) Net Cash Proceeds of any Designated Non-cash Consideration received by the Company or any Asset Sale are not applied within 365 days of its Restricted Subsidiaries in such Asset Sale having an aggregate fair market value, taken together with all other Designated Non-cash Consideration received pursuant to this as described in clause (c1) after December 14or (2) (such Net Cash Proceeds, 2010 that is at that time outstanding, not to exceed the greater of $150 million and 5% 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“Unutilized Net Cash Proceeds”), shallthe Company shall apply such Unutilized Net Cash Proceeds as required by the Subordinated Note Indenture and the Senior Discount Note Indenture, as in each of (a), (b) and (c) above, be deemed to be cash for effect on the purposes of this provision or for purposes of the second paragraph of this Section 4.10; andClosing Date.
Appears in 3 contracts
Samples: Securities Purchase Agreement (Language Line Services Holdings, Inc.), Securities Purchase Agreement (LL Services Inc.), Securities Purchase Agreement (Language Line Holdings, Inc.)
Asset Sales. (a) The Company Issuer shall not, and shall not permit any of its Restricted Subsidiaries toto consummate, consummate directly or indirectly, an Asset Sale unless Sale, unless:
(i1) the Company Issuer or the applicable 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 (as determined in good faith by the Company)Issuer) of the assets sold or otherwise disposed of; and
(ii2) (A) except in the case of a Permitted Asset Swap, at least 75% of the consideration therefor received by the Company Issuer or the such Restricted Subsidiary, as the case may be, from such Asset Sale shall be is in the form of cash or Cash Equivalents; provided that the amount of:
(a) except in the case of an Asset Sale of Collateral, any liabilities (as shown on the CompanyIssuer’s or such Restricted Subsidiary’s most recent balance sheet or in the footnotes thereto, or if incurred or accrued subsequent to ) of the date of such balance sheet, such liabilities that would have been shown on the Company’s Issuer or such Restricted Subsidiary’s balance or the footnotes thereto if such incurrence or accrual had taken place on the date of such balance sheet, as determined by the Company) of the Company or any such Restricted Subsidiary (other than liabilities that are by their terms subordinated to the Notes) Notes or that are owed to the Issuer or an Affiliate of the Issuer, that are assumed by the transferee of any such assets; assets and for which the Issuer and all of its Restricted Subsidiaries have been validly released by all applicable creditors in writing,
(b) any securities, notes or other obligations securities received by the Company Issuer or any such Restricted Subsidiary from such transferee that are converted by the Company Issuer or such Restricted Subsidiary into cash within 180 days of the receipt thereof (to the extent of the cash received); and ) within 180 days following the closing of such Asset Sale, and
(c) any Designated Non-cash Consideration received by the Company Issuer or any of its such Restricted Subsidiaries 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) after December 14, 2010 that is at that time outstanding, not to exceed the greater of $150 million and 5% of Total Assets at the time of the receipt of such Designated Non-cash Consideration (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); provided that the aggregate fair market value of Designated Non-cash Consideration received by EFIH after the Issue Date in respect of Asset Sales of Collateral shall not exceed $400.0 million, shall, in each of (a), (b) and (c) above, shall be deemed to be cash for the purposes of this provision or clause (a)(2)(A) and for purposes of the second paragraph of this Section 4.10no other purpose; and
Appears in 3 contracts
Samples: Indenture (Energy Future Intermediate Holding CO LLC), Indenture (EFIH Finance Inc.), Indenture (Energy Future Intermediate Holding CO LLC)
Asset Sales. (a) The Company Issuer shall not, and shall not permit any of its Restricted Subsidiaries to, consummate an Asset Sale unless Sale, unless:
(i1) the Company Issuer or the applicable 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 (as determined in good faith by the Company)Issuer) of the assets sold or otherwise disposed of; and
(ii2) except in the case of a Permitted Asset Swap, at least 75% of the consideration therefor received by the Company Issuer or the such Restricted Subsidiary, as the case may be, from such Asset Sale shall be is in the form of cash or Cash Equivalents; provided that the amount of:
(aA) any liabilities (as shown on the CompanyIssuer’s or such Restricted Subsidiary’s most recent balance sheet or in the footnotes thereto, or if incurred or accrued subsequent to ) of the date of such balance sheet, such liabilities that would have been shown on the Company’s Issuer or such Restricted Subsidiary’s balance or the footnotes thereto if such incurrence or accrual had taken place on the date of such balance sheet, as determined by the Company) of the Company or any such Restricted Subsidiary (other than liabilities that are by their terms subordinated to the NotesNotes (or Guarantees) or that are owed to the Issuer or a Restricted Subsidiary, that are assumed by the transferee of any such assets; assets and for which the Issuer and all of its Restricted Subsidiaries have been validly released by all creditors in writing,
(bB) any securities, notes or other obligations or assets received by the Company Issuer or any such Restricted Subsidiary from such transferee that are converted by the Company Issuer or such Restricted Subsidiary into cash within 180 days of the receipt thereof (to the extent of the cash received); and ) within 180 days following the closing of such Asset Sale, and
(cC) any Designated Non-cash Consideration received by the Company Issuer or any of its such Restricted Subsidiaries 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) after December 14, 2010 that is at that time outstanding, not to exceed the greater of $150 million and 5% of Total Assets 300,000,000 at the time of the receipt of such Designated Non-cash Consideration (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 valuevalue shall be deemed to be cash for purposes of this provision and for no other purpose; and
(3) if such Asset Sale involves the disposition 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 received in such Asset Sale shall be expressly made subject to Liens under the Security Documents.
(b) Within 18 months after the receipt of any Net Proceeds of any Asset Sale by the Issuer or any Restricted Subsidiary, the Issuer or such Restricted Subsidiary, at its option, may apply the Net Proceeds from such Asset Sale,
(1) to permanently reduce:
(A) Obligations constituting First Priority Lien Obligations under the General Credit Facilities (other than any General Credit Facilities that also constitute Public Debt) (and, if the Indebtedness repaid is revolving credit Indebtedness, to correspondingly reduce commitments with respect thereto);
(B) until the ABL Date, shallObligations under the ABL Facility (and to correspondingly reduce commitments with respect thereto) so long as the Net Proceeds of the Asset Sale are with respect to ABL Collateral;
(C) Obligations under (i) the Notes (to the extent such purchases are at or above 100% of the principal amount thereof) or (ii) any other First Priority Lien Obligations of the Issuer or a Restricted Guarantor (and to correspondingly reduce commitments with respect thereto) if and to the extent required by the terms of such Obligations; provided that the Issuer shall equally and ratably reduce Obligations under the Notes as provided in Section 5 of each of the Notes and Section 3.02 hereof through open-market purchases (to the extent such purchases are at or above 100.0% of the principal amount thereof) or by making an offer (in accordance with the procedures set forth in Section 3.09 and Section 4.10(c) hereof) to all Holders of Notes to purchase a pro rata amount of Notes at 100% of the principal amount thereof, plus accrued but unpaid interest; or
(D) Indebtedness of a Restricted Subsidiary that is not a Guarantor (and to correspondingly reduce commitments with respect thereto) so long as the Net Proceeds of the Asset Sale are with respect to assets owned by such Restricted Subsidiary that is not a Guarantor and the Net Proceeds of such Asset Sale are received by such Restricted Subsidiary as a result of an Asset Sale by such Restricted Subsidiary; or
(2) to (a) make an Investment in any one or more businesses, provided, however, that such Investment in any business is in the form of the acquisition of Capital Stock and results in the Issuer or Restricted Subsidiary, as the case may be, owning an amount of the Capital Stock of such business such that it constitutes a Restricted Subsidiary, (b) acquire properties, (c) make capital expenditures or (d) acquire other assets that, in the case of each of clauses (a), (b), (c) and (cd) either (x) are used or useful in a Similar Business or (y) replace the businesses, properties or assets that are the subject of such Asset Sale; provided, however, that, in the case of clause (2) above, a binding commitment shall be treated as a permitted application of the Net Proceeds from the date of such commitment so long as the Issuer or such other Restricted Subsidiary enters into such commitment with the good faith expectation that such Net Proceeds will be applied to satisfy such commitment within the later of 18 months after receipt of such Net Proceeds and 180 days following such commitment; provided further, however, that if such commitment is cancelled or terminated after the later of such 18 month or 180 day period for any reason before such Net Proceeds are applied, then such Net Proceeds shall constitute Excess Proceeds.
(c) Any Net Proceeds from any Asset Sale that are not invested or applied as provided and within the time period set forth in Section 4.10(b) hereof shall be deemed to constitute “Excess Proceeds,” except the amount of Excess Proceeds will be reduced by an amount equal to the difference between (x) the principal amount of the Notes offered to be purchased in a bona fide offer pursuant to Section 4.10(b)(1)(c) and (y) the principal amount of the Notes that were purchased pursuant to such offer. When the aggregate amount of Excess Proceeds with respect to the Notes exceeds $100,000,000, the Issuer shall make an offer to all Holders of the Notes and, if required by the terms of any other First Priority Lien Obligations, to the holder of such First Priority Lien Obligations (an “Asset Sale Offer”), to purchase the maximum aggregate principal amount of such Notes and the maximum aggregate principal amount (or accreted value, if less) of such First Priority Lien Obligations that is a minimum of $2,000 or an integral multiple of $1,000 thereof (in aggregate principal amount) that may be purchased out of the Excess Proceeds at an offer price in cash in an amount equal to 100% of the principal amount thereof (or accreted value, if applicable) plus accrued and unpaid interest to the date fixed for the purposes closing of such offer, in accordance with the procedures set forth in this Indenture. The Issuer shall commence an Asset Sale Offer with respect to Excess Proceeds within ten Business Days after the date that Excess Proceeds exceed $100,000,000 by sending the notice required pursuant to the terms of this provision Indenture, with a copy to the Trustee or for purposes otherwise in accordance with the procedures of DTC. The Issuer, in its sole discretion, may satisfy the foregoing obligations with respect to any Net Proceeds from an Asset Sale by making an Asset Sale Offer with respect to such Net Proceeds prior to the expiration of the second paragraph relevant 18 month period (or such longer period provided above) or with respect to Excess Proceeds of $100,000,000 or less. To the extent that the aggregate principal amount of Notes and the aggregate principal amount (or accreted value, if applicable) of such First Priority Lien Obligations tendered pursuant to an Asset Sale Offer is less than the Excess Proceeds with respect to the Notes, the Issuer may use any remaining Excess Proceeds for general corporate purposes, subject to the other covenants contained in this Indenture and the Security Documents. If the aggregate principal amount of Notes and the aggregate principal amount (or accreted value, if applicable) of the First Priority Lien Obligations surrendered in an Asset Sale Offer exceeds the amount of Excess Proceeds with respect to the Notes, the Registrar or the Paying Agent shall select the Notes and the Issuer or the agent for such First Priority Lien Obligations shall select such other First Priority Lien Obligations to be purchased on a pro rata basis based on the principal amount of the Notes and the aggregate principal amount (or accreted value, if applicable) of such First Priority Lien Obligations tendered in accordance with Section 3.09 hereof. Upon completion of any such Asset Sale Offer, the amount of Excess Proceeds shall be reset at zero.
(d) Pending the final application of any Net Proceeds pursuant to this Section 4.10; and, the holder of such Net Proceeds may apply such Net Proceeds temporarily to reduce Indebtedness outstanding under a revolving credit facility, including under any Senior Credit Facilities, or otherwise invest or apply such Net Proceeds in any manner not prohibited by this Indenture.
(e) The Issuer shall comply with the requirements of Rule 14e-1 under the Exchange Act and any other securities laws and regulations thereunder to the extent such laws or regulations are applicable in connection with the repurchase of the Notes pursuant to an Asset Sale Offer. To the extent that the provisions of any securities laws or regulations conflict with the provisions of this Indenture, the Issuer shall comply with the applicable securities laws and regulations and shall not be deemed to have breached its obligations described in this Indenture by virtue thereof.
Appears in 3 contracts
Samples: Indenture (iHeartCommunications, Inc.), Indenture (Clear Channel Communications Inc), Indenture (Clear Channel Communications Inc)
Asset Sales. (a) The Company shall not, and shall not permit any of its Restricted Subsidiaries to, consummate cause, make or suffer to exist an Asset Sale unless Sale, unless:
(i1) the Company or the applicable 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 (as determined in good faith by the Company); (ii) a Permitted Asset Swap, at least 75% of the consideration therefor received by the Company or the such Restricted Subsidiary, as the case may be, from such Asset Sale shall be is in the form of cash or Cash Equivalents; provided that the amount of:
(aA) any liabilities (as shown on the Company’s or such Restricted Subsidiary’s most recent balance sheet or in the footnotes thereto, or if incurred or accrued subsequent to the date of such balance sheet, such liabilities that would have been shown on the Company’s or such Restricted Subsidiary’s balance or the footnotes thereto if such incurrence or accrual had taken place on the date of such balance sheet, as determined by the Company) of the Company or any such Restricted Subsidiary (Subsidiary, other than liabilities that are by their terms subordinated to the Notes) , that are assumed by the transferee of any such assets; assets and for which the Company and all of its Restricted Subsidiaries have been validly released by all creditors in writing,
(bB) any securities, notes or other obligations 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 the receipt thereof (to the extent of the cash received); and ) within 180 days following the closing of such Asset Sale, and
(cC) any Designated Non-cash Consideration received by the Company or any of its such Restricted Subsidiaries 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) after December 14, 2010 that is at that time outstanding, not to exceed the greater of $150 million and 52.5% of Total Assets at the time of the receipt of such Designated Non-cash Consideration (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 for purposes of this provision and for no other purpose.
(b) Within 450 days after the receipt of any Net Proceeds of any Asset Sale, the Company or such Restricted Subsidiary, at its option, may apply the Net Proceeds from such Asset Sale,
(1) to permanently reduce:
(A) First Lien Obligations (including Obligations under the Senior Credit Facilities and the Existing Secured Notes), shalland to correspondingly reduce commitments with respect thereto;
(B) Obligations under Senior Indebtedness that is secured by a Lien, which Lien is permitted by this Indenture, and to correspondingly reduce commitments with respect thereto; or
(C) Indebtedness of a Restricted Subsidiary that is not a Guarantor, other than Indebtedness owed to the Company or another Restricted Subsidiary;
(2) to make (a) an Investment in any one or more businesses, provided that such Investment in any business is in the form of the acquisition of Capital Stock and results in the Company or another of its Restricted Subsidiaries, as the case may be, owning an amount of the Capital Stock of such business such that it constitutes a Restricted Subsidiary, (b) 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 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 another of its Restricted Subsidiaries, as the case may be, owning an amount of the Capital Stock of such business such that it constitutes a Restricted Subsidiary, (b) properties or (c) acquisitions of other assets that, in each of (a), (b) and (c), replace the businesses, properties and/or assets that are the subject of such Asset Sale; provided that, in the case of clauses (2) and (3) above, a binding commitment shall be treated as a permitted application of the Net Proceeds from the date of such commitment so long as the Company or such other Restricted Subsidiary enters into such commitment with the good faith expectation that such Net Proceeds will be applied to satisfy such commitment within 180 days of such commitment (an “Acceptable Commitment”) and, in the event any Acceptable Commitment is later cancelled or terminated for any reason before the Net Proceeds are applied in connection therewith, the Company or such Restricted Subsidiary enters into another Acceptable Commitment (a “Second Commitment”) within 180 days of such cancellation or termination; provided further that if any Second Commitment is later cancelled or terminated for any reason before such Net Proceeds are applied, then such Net Proceeds shall constitute Excess Proceeds.
(c) Any Net Proceeds from the Asset Sale that are not invested or applied as provided and within the time period set forth in Section 4.10(b) hereof will be deemed to constitute “Excess Proceeds.” When the aggregate amount of Excess Proceeds exceeds $100.0 million, the Issuer shall make an offer to all Holders of the Notes and, if required by the terms of any other Indebtedness constituting First Lien Obligations, to the holders of such other First Lien Obligations (an “Asset Sale Offer”), to purchase the maximum aggregate principal amount of the Notes and such other First Lien Obligations that is at least $2,000 or an integral multiple of $1,000 thereafter that may be purchased out of the Excess Proceeds at an offer price in cash in an amount equal to 100% of the principal amount thereof (or accreted value, if less), plus accrued and unpaid interest, if any, to the date fixed for the purposes closing of such offer, in accordance with the procedures set forth in this Indenture. The Issuer will commence an Asset Sale Offer with respect to Excess Proceeds within ten Business Days after the date that Excess Proceeds exceed $100.0 million by mailing the notice required pursuant to the terms of this provision or for purposes Indenture, with a copy to the Trustee. The Issuer may satisfy the foregoing obligations with respect to any Net Proceeds from an Asset Sale by making an Asset Sale Offer with respect to such Net Proceeds prior to the expiration of the second paragraph relevant 450 days or with respect to Excess Proceeds of $100.0 million or less. To the extent that the aggregate amount of Notes and such other First Lien Obligations tendered pursuant to an Asset Sale Offer is less than the Excess Proceeds, the Issuer may use any remaining Excess Proceeds for general corporate purposes, subject to other covenants contained in this Indenture. If the aggregate principal amount of Notes or the other First Lien Obligations surrendered by such holders thereof exceeds the amount of Excess Proceeds, the Trustee shall select the Notes and such other First Lien Obligations to be purchased on a pro rata basis based on the accreted value or principal amount of the Notes or such other First Lien Obligations tendered. Upon completion of any such Asset Sale Offer, the amount of Excess Proceeds that resulted in the Asset Sale Offer shall be reset to zero.
(d) Pending the final application of any Net Proceeds pursuant to this Section 4.10; and, the holder of such Net Proceeds may apply such Net Proceeds temporarily to reduce Indebtedness outstanding under a revolving credit facility or otherwise invest such Net Proceeds in any manner not prohibited by this Indenture.
(e) The Issuer will comply with the requirements of Rule 14e-1 under the Exchange Act and any other securities laws and regulations thereunder to the extent such laws or regulations are applicable in connection with the repurchase of the Notes pursuant to an Asset Sale Offer. To the extent that the provisions of any securities laws or regulations conflict with the provisions of this Indenture, the Issuer will comply with the applicable securities laws and regulations and shall not be deemed to have breached its obligations described in this Indenture by virtue thereof.
Appears in 3 contracts
Samples: Indenture (NXP Semiconductors N.V.), Indenture (Freescale Semiconductor, Ltd.), First Supplemental Indenture (Freescale Semiconductor, Ltd.)
Asset Sales. The Company Issuers shall not, and shall not permit any of its Restricted their respective Subsidiaries to, consummate an engage in any Asset Sale Sale, unless (ix) the Company Issuers or the applicable Restricted Subsidiary, as the case may be, such Subsidiary 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 sold or otherwise disposed of and (as determined in good faith by the Company); (iiy) at least 75% of the consideration therefor received by the Company Issuers or the Restricted Subsidiary, as the case may be, from such Asset Sale shall be Subsidiary is in the form of cash or Cash Equivalentscash; provided provided, however, that the amount of:
of (aA) any liabilities (as shown on the Company’s Issuers' or such Restricted Subsidiary’s 's most recent balance sheet or in the footnotes notes thereto, or if incurred or accrued subsequent to the date of such balance sheet, such liabilities that would have been shown on the Company’s or such Restricted Subsidiary’s balance or the footnotes thereto if such incurrence or accrual had taken place on the date of such balance sheet, as determined by the Company) of the Company Issuers or any such Restricted Subsidiary of their respective Subsidiaries (other than liabilities that are by their terms subordinated to the NotesNotes or any guarantee thereof) that are assumed by the transferee of any such assets; (b) any securities, notes or other obligations received by the Company or any such Restricted Subsidiary from such transferee that are converted by the Company or such Restricted Subsidiary into cash within 180 days of the receipt thereof (to the extent of the cash received); assets and (cB) any Designated Non-cash Permitted Asset Sale Consideration received by the Company Issuers or such Subsidiary in any of its Restricted Subsidiaries 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) after December 14, 2010 that is at that time outstanding, not to exceed the greater of $150 million and 5% 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, in each of (a), (b) and (c) above, shall be deemed to be cash for the purposes of this provision provision. The Issuers may (a) apply the Net Proceeds from such Asset Sale to permanently reduce Senior Debt of the Issuers; provided that the Issuers make such a reduction within 365 days after any Asset Sale or (b) invest the Net Proceeds from such Asset Sale in the same or a similar line of business as Consoltex Group was engaged in on the date of this Indenture or in businesses reasonably related thereto: provided that the Issuers shall have invested such Net Proceeds within 365 days after such Asset Sale or shall have commenced and not completed or abandoned the project in which the Board of Directors of Consoltex Group has determined that the Issuers will invest such Net Proceeds and shall have segregated such Net Proceeds from the general funds of the Issuers and their Subsidiaries for that purpose; provided, further, that if the project in which such Board of Directors has determined that the Issuers will invest such Net Proceeds is thereafter abandoned, within 60 days after such project is abandoned, the Issuers shall (i) apply the Net Proceeds from such Asset Sale to permanently reduce Senior Debt of the Issuers or (ii) invest the Net Proceeds from such Asset Sale in the same or a similar line of business as Consoltex Group was engaged in on the date of this Indenture or in businesses reasonably related thereto. Pending the final application of any such Net Proceeds, the Issuers may temporarily reduce Senior Debt or otherwise invest such Net Proceeds in any manner that is not prohibited by this Indenture. Any Net Proceeds from the Asset Sale that are not applied or invested as provided in the first sentence of this paragraph shall be deemed to constitute "Excess Proceeds." When the aggregate amount of Excess Proceeds exceeds $10 million, the Issuers shall make an 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 Excess Proceeds, at an offer price in cash in an amount equal to 100% of the principal amount thereof plus accrued and unpaid interest, if any, to the date fixed for the closing of such offer (the "Offered Price"), in accordance with the procedures set forth 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 (a "Deficiency"), the Issuers may use such Deficiency 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 offer to purchase, the amount of Excess Proceeds shall be reset at zero; provided that the amount of 25 % Excess Proceeds shall constitute Excess Proceeds for purposes of the second paragraph first offer that is made after the fifth anniversary of this Section 4.10; andthe original issuance of the Notes (the "Fifth Anniversary"). Notwithstanding the foregoing, in no event shall the Issuers use Excess Proceeds to purchase more than 25 % of the original aggregate principal amount of Notes on or prior to the Fifth Anniversary. If the aggregate Excess Proceeds (disregarding any resetting to zero as described above) resulting from Asset Sales occurring prior to the Fifth Anniversary, less any Deficiencies resulting from any offers made on or prior to such date, exceed 25 % of the original aggregate principal amount of the Notes (such excess being the "25 % Excess Proceeds"), then the Issuers shall make an offer at the Offered Price in accordance with the foregoing provisions (i) promptly after the Fifth Anniversary, in the event the amount of the 25% Excess Proceeds exceeds $10 million or (ii) at such time as the amount of the 25% Excess Proceeds together with the Excess Proceeds received after the Fifth Anniversary exceeds $10 million, in the event the amount of the 25% Excess Proceeds is less than $10 million.
Appears in 2 contracts
Samples: Indenture (Consoltex Usa Inc), Indenture (Consoltex Inc/ Ca)
Asset Sales. (a) The Company shall not, and shall not permit any of its Restricted Subsidiaries to, consummate an Asset Sale unless Sale, unless:
(i) the Company or the applicable Restricted such 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 (such fair market value to be determined on the date of contractually agreeing to such Asset Sale) of the assets sold or otherwise disposed of (as determined in good faith by the Company)of; and
(ii) except in the case of a Permitted Asset Swap, at least 75% of the consideration therefor received by the Company or the Restricted such Subsidiary, as the case may be, from such Asset Sale shall be is in the form of cash or 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, or if incurred or accrued subsequent to the date of such balance sheet, such liabilities that would have been shown reflected on the Company’s or such Restricted Subsidiary’s balance sheet or in the footnotes thereto if such incurrence or accrual had taken place on or prior to the date of such balance sheet, as determined in good faith by the Company) of the Company or any such Restricted Subsidiary (Subsidiary, other than liabilities that are by their terms subordinated to the Notes) Notes or the Guarantees, that are assumed by the transferee of any such assets; assets or that are otherwise cancelled or terminated in connection with the transaction with such transferee and for which the Company and all of its Subsidiaries have been validly released by all creditors in writing,
(b) any securities, notes or other obligations or assets received by the Company or any such Restricted Subsidiary from such transferee that are converted by the Company or such Restricted Subsidiary into cash within 180 days of the receipt thereof Cash Equivalents, or by their terms are required to be satisfied for Cash Equivalents (to the extent of the cash Cash Equivalents received); and ) within 180 days following the closing of such Asset Sale, and
(c) any Designated Non-cash Consideration received by the Company or any of its Restricted Subsidiaries such 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) after December 14, 2010 that is at that time outstanding, not to exceed the greater $5.0 million, shall be deemed to be Cash Equivalents for purposes of $150 million this Section 4.06(a) and 5% of Total Assets at the time of for no other purpose.
(b) Within 30 days after the receipt of any Net Proceeds of any Fundamental Property Asset Sale, the Company or such Designated Non-Subsidiary shall make an offer to all Holders (an “Asset Sale Offer”), to purchase the maximum aggregate principal amount of the Notes that is at least $2,000 and an integral multiple of $1,000 in excess thereof that may be purchased out of the Net Proceeds of such Fundamental Property Asset Sale at an offer price in cash Consideration (in an amount equal to 100% of the principal amount thereof, plus accrued and unpaid interest, if any, to, but not including, the date fixed for the closing of such offer, in accordance with the fair market value procedures set forth in this Indenture. The Company will commence an Asset Sale Offer with respect to such Net Proceeds by sending the notice required pursuant to the terms of each item this Indenture, with a copy to the Trustee, or otherwise in accordance with the procedures of Designated Non-cash Consideration being measured DTC. To the extent that the aggregate amount of Notes tendered pursuant to an Asset Sale Offer is less than the Net Proceeds for such Fundamental Property Asset Sale, the Company may use any remaining Net Proceeds for general corporate purposes, subject to compliance with other covenants contained in this Indenture. If the aggregate principal amount of Notes surrendered in an Asset Sale Offer exceeds the amount of Net Proceeds for such Fundamental Property Asset Sale, the Trustee shall select the Notes to be purchased in the manner described in Section 3.04.
(c) Within 365 days after the receipt of any Net Proceeds of (i) any Additional Property Asset Sale or (ii) any other Asset Sale (other than a Fundamental Property Asset Sale) in an aggregate amount greater than $20.0 million, the Company or such Subsidiary, at its option, may apply the time received Net Proceeds from such Asset Sale.
(i) to make an Investment in (a) any one or more properties or businesses, provided that such Investment in any property or business is in the form of the acquisition of Capital Stock and without giving effect to subsequent changes results in value)the Company or any of its Subsidiaries, shallas the case may be, owning an amount of the Capital Stock of such business such that it constitutes a Subsidiary, (b) capital expenditures or (c) acquisitions of other properties or assets, in the case of each of (a), (b) and (c), used or useful in a Similar Business or to replace the businesses, properties and/or other assets that are the subject of such Asset Sale;
(ii) to repay (a) Obligations under Indebtedness (other than Subordinated Indebtedness) that is secured by a Lien, which Lien is permitted by this Indenture; or (b) Obligations under other Indebtedness (other than Subordinated Indebtedness), provided that the Company shall equally and ratably reduce Obligations under the Notes as provided under Section 3.01 through open-market purchases (to the extent such purchases are at or above 100% of the principal amount thereof) or by making an offer (in accordance with the procedures set forth above for an Asset Sale Offer) to all Holders to purchase their Notes at 100% of the principal amount thereof, plus the amount of accrued but unpaid interest, if any, on the amount of Notes that would otherwise be prepaid; or
(iii) any combination of the foregoing; provided that, in the case of clauses (i) and (ii) above, a binding commitment shall be treated as a permitted application of the Net Proceeds from the date of such commitment so long as the Company or such other 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 such Net Proceeds are applied, then such Net Proceeds shall constitute Excess Proceeds (as defined below). Any Net Proceeds from any Asset Sale that are not invested or applied as provided and within the time period set forth in this Section 4.06(c) (it being understood that any portion of such Net Proceeds used to make an offer to purchase Notes, as described in clause (iii) of this Section 4.06(b), shall be deemed to have been invested whether or not such offer is accepted) will be deemed to constitute “Excess Proceeds.” When the aggregate amount of Excess Proceeds exceeds $20.0 million, the Company shall make an Asset Sale Offer to all Holders to purchase the maximum aggregate principal amount of the Notes that is at least $2,000 and an integral multiple of $1,000 in excess thereof that may be purchased out of the Excess Proceeds at an offer price in cash in an amount equal to 100% of the principal amount thereof, plus accrued and unpaid interest, if any, to, but not including, the date fixed for the purposes closing of such offer, in accordance with the procedures set forth in this Indenture. The Company will commence an Asset Sale Offer with respect to Excess Proceeds within ten Business Days after the date that Excess Proceeds exceed $20.0 million by sending the notice required pursuant to the terms of this provision Indenture, with a copy to the Trustee, or otherwise in accordance with the procedures of DTC. 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 purposes general corporate purposes, subject to compliance with other covenants contained in this Indenture. If the aggregate principal amount of Notes surrendered in an Asset Sale Offer exceeds the amount of Excess Proceeds, the Trustee shall select the Notes to be purchased in the manner described in Section 3.04. Upon completion of any such Asset Sale Offer, the amount of Excess Proceeds shall be reset to zero (regardless of whether there are any remaining Excess Proceeds upon such completion).
(d) Pending the final application of any Net Proceeds pursuant to this Section 4.06, 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 The Company shall comply with the requirements of Rule 14e-1 under the Exchange Act and any other securities laws and regulations thereunder to the extent such laws or regulations are applicable in connection with the repurchase of the second paragraph Notes pursuant to an Asset Sale Offer. To the extent that the provisions of any securities laws or regulations conflict with the provisions of this Section 4.10; andIndenture, the Company shall comply with the applicable securities laws and regulations and shall not be deemed to have breached its obligations described in this Indenture by virtue thereof.
Appears in 2 contracts
Asset Sales. (a) The Company Borrower shall not, and shall not permit any of its Restricted Subsidiaries to, consummate cause or make an Asset Sale Sale, unless (ix) the Company Borrower or the applicable any of its Restricted SubsidiarySubsidiaries, as the case may be, receives consideration at the time of such Asset Sale at least equal to the fair market value Fair Market Value (as determined in good faith by the Borrower) of the assets sold or otherwise disposed of and (as determined in good faith by the Company); (iiy) at least 75% of the consideration therefor received by the Company Borrower or the such Restricted Subsidiary, as the case may be, from such Asset Sale shall be is in the form of cash or Cash Equivalents; provided that the amount of:
(ai) any liabilities (as shown on the CompanyBorrower’s or such Restricted Subsidiary’s most recent balance sheet or in the footnotes notes thereto, or if incurred or accrued subsequent to the date of such balance sheet, such liabilities that would have been shown on the Company’s or such Restricted Subsidiary’s balance or the footnotes thereto if such incurrence or accrual had taken place on the date of such balance sheet, as determined by the Company) of the Company Borrower or any such Restricted Subsidiary of the Borrower (other than liabilities that are by their terms subordinated to the NotesLoans) that are assumed by the transferee of any such assets; ,
(bii) any securities, notes or other obligations or other securities or assets received by the Company Borrower or any such Restricted Subsidiary of the Borrower from such transferee that are converted by the Company Borrower or such Restricted Subsidiary of the Borrower into cash within 180 days of the receipt thereof (to the extent of the cash received); and , and
(ciii) any Designated Non-cash Consideration received by the Company Borrower or any of its Restricted Subsidiaries in such Asset Sale having an aggregate fair market valueFair Market Value, taken together with all other Designated Non-cash Consideration received pursuant to this clause (ciii) after December 14, 2010 that is at that time outstanding, not to exceed the greater of $150 million and 55.0% of Total Assets of the Borrower at the time of the receipt of such Designated Non-cash Consideration (with the fair market value 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 of (a), (b) and (c) above, shall be deemed to be cash Cash Equivalents for the purposes of this provision Section 10.4(a).
(b) Within 365 days after the Borrower’s or for purposes any Restricted Subsidiary of the second paragraph Borrower’s receipt of the Net Proceeds of any Asset Sale (or Event of Loss Proceeds), the Borrower or such Restricted Subsidiary of the Borrower may apply the Net Proceeds from such Asset Sale together with any Event of Loss Proceeds, at its option:
(i) to permanently reduce Obligations under Secured Indebtedness or Pari Passu Indebtedness (provided that if the Borrower or any Guarantor shall so reduce Obligations under Pari Passu Indebtedness (other than Pari Passu Indebtedness that is Secured Indebtedness), the Borrower shall equally and ratably reduce Obligations under this Agreement if the Loans are then prepayable or, if the Loans may not then be prepaid, by making an offer (in accordance with the procedures set forth below for an Excess Proceeds Offer) to all Lenders to purchase at a purchase price equal to 100% of the principal amount thereof, plus accrued and unpaid interest, the pro rata principal amount of Loans that would otherwise be prepaid) or Indebtedness of a Restricted Subsidiary that is not a Guarantor, in each case other than Indebtedness owed to the Borrower or an Affiliate of the Borrower,
(ii) to an investment in any one or more businesses (provided that if such investment is in the form of the acquisition of Capital Stock of a Person, such acquisition results in such Person becoming a Restricted Subsidiary of the Borrower), or capital expenditures or assets, in each case used or useful in a Similar Business, and/or
(iii) to make an investment in any one or more businesses (provided that if such investment is in the form of the acquisition of Capital Stock of a Person, such acquisition results in such Person becoming a Restricted Subsidiary of the Borrower), properties or assets that replace the properties and assets that are the subject of such Asset Sale or Event of Loss; provided that in the case of clauses (ii) and (iii) above, a binding commitment shall be treated as a permitted application of the Net Proceeds from the date of such commitment and, in the event such binding commitment is later canceled or terminated for any reason before such Net Proceeds are so applied, the Borrower or such Restricted Subsidiary enters into another binding commitment within nine months of such cancellation or termination of the prior binding commitment. Pending the final application of any such Net Proceeds (or Event of Loss Proceeds), the Borrower or such Restricted Subsidiary of the Borrower may temporarily reduce Indebtedness under a revolving credit facility, if any, or otherwise invest such Net Proceeds (or Event of Loss Proceeds) in Cash Equivalents or Investment Grade Securities. Any Net Proceeds from any Asset Sale (or Event of Loss Proceeds) that are not applied as provided and within the time period set forth in the first sentence of this Section 4.10; 10.4(b) (it being understood that any portion of such Net Proceeds (or Event of Loss Proceeds) used to make an offer to prepay the Loans, as described in clause (i) above, shall be deemed to have been invested whether or not such offer is accepted) shall be deemed to constitute “Excess Proceeds.” When the aggregate amount of Excess Proceeds exceeds $25.0 million, the Borrower shall make a Prepayment Offer and, at the option of the Borrower pursuant to Section 5.2, any holders of Pari Passu Indebtedness, and in accordance with this Section 10.4. Upon completion of any such Excess Proceeds Offer, the amount of Excess Proceeds shall be reset at zero.
Appears in 2 contracts
Samples: Senior Unsecured Credit Agreement (Intelsat LTD), Senior Unsecured Credit Agreement (Intelsat LTD)
Asset Sales. The Company shall will not, and shall will not permit any of its Restricted Subsidiaries to, consummate cause or make an Asset Sale unless unless:
(i1) the Company or the applicable any of its Restricted SubsidiarySubsidiaries, as the case may be, receives consideration at the time of such Asset Sale at least equal to the fair market value of the assets sold or otherwise disposed of Fair Market Value (as determined in good faith by the Board of Directors of the Company)) of the assets sold or otherwise disposed of; and
(ii2) at least 75% of the consideration therefor received by the Company or the such Restricted Subsidiary, as the case may be, from such Asset Sale shall be is in the form of cash or Cash Equivalents; provided that the amount of:
(aA) any liabilities (as shown on the Company’s or such Restricted Subsidiary’s most recent balance sheet or in the footnotes thereto, or if incurred or accrued subsequent to the date of such balance sheet, such liabilities that would have been shown on the Company’s or such Restricted Subsidiary’s balance or the footnotes thereto if such incurrence or accrual had taken place on the date of such balance sheet, as determined by the Company) of the Company or any such Restricted Subsidiary of the Company (other than liabilities that are by their terms subordinated to the Notes) that are assumed by the transferee of any such assets; assets and from which the Company or any Restricted Subsidiary are released in writing;
(bB) any securities, notes or other obligations or other securities or assets received by the Company or any such Restricted Subsidiary of the Company from such transferee that are converted by the Company or such Restricted Subsidiary of the Company into cash within 180 days of the receipt thereof (to the extent of the cash received); and and
(cC) any Designated Non-cash Consideration received by the Company or any of its Restricted Subsidiaries in such Asset Sale having an aggregate fair market valueFair Market Value (as determined in good faith by the Board of Directors of the Company), taken together with all other Designated Non-cash Consideration received pursuant to this clause (cC) after December 14, 2010 that is at that time outstanding, not to exceed the greater of $150 million and 55.0% of Total Assets of the Company at the time of the receipt of such Designated Non-cash Consideration (with the fair market value 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 of (a), (b) and (c) above, ; shall be deemed to be cash Cash Equivalents for the purposes of this provision provision. Within 365 days after the receipt by the Company or any Restricted Subsidiary of the Company of the Net Proceeds of any Asset Sale (or Event of Loss Proceeds), the Company or such Restricted Subsidiary of the Company may apply the Net Proceeds from such Asset Sale (together with any Event of Loss Proceeds), at its option:
(1) to permanently reduce Obligations under Secured Indebtedness or Pari Passu Indebtedness (provided that if the Company or any Guarantor shall so reduce Obligations under Pari Passu Indebtedness (other than Pari Passu Indebtedness that is Secured Indebtedness), the Company will equally and ratably reduce Obligations under the Notes if the Notes are then prepayable or, if the Notes may not then be prepaid, by making an offer (in accordance with the procedures set forth below for purposes an Asset Sale Offer) to all holders to purchase at a purchase price equal to 100% of the principal amount thereof, plus accrued and unpaid interest and Liquidated Damages, if any, the pro rata principal amount of Notes that would otherwise be prepaid) or Indebtedness of a Restricted Subsidiary that is not a Guarantor, in each case other than Indebtedness owed to the Company or an Affiliate of the Company,
(2) to make an investment in any one or more businesses (provided that if such investment is in the form of the acquisition of Capital Stock of a Person, such acquisition results in such Person becoming a Restricted Subsidiary of the Company), or capital expenditures or assets, in each case used or useful in a Similar Business, and/or
(3) to make an investment in any one or more businesses (provided that if such investment is in the form of the acquisition of Capital Stock of a Person, such acquisition results in such Person becoming a Restricted Subsidiary of the Company), properties or assets that replace the properties and assets that are the subject of such Asset Sale or Event of Loss; provided that in the case of clauses (2) and (3) above, a binding commitment shall be treated as a permitted application of the Net Proceeds from the date of such commitment and, in the event such binding commitment is later canceled or terminated for any reason before such Net Proceeds are so applied, the Company or such Restricted Subsidiary enters into another binding commitment within nine months of such cancellation or termination of the prior binding commitment; provided, further, that any such binding commitment to invest shall be subject to only customary conditions (other than financing). Pending the final application of any such Net Proceeds (or Event of Loss Proceeds), the Company or such Restricted Subsidiary of the Company may temporarily reduce Indebtedness under a revolving credit facility, if any, or otherwise invest such Net Proceeds (or Event of Loss Proceeds) in Cash Equivalents or Investment Grade Securities. Any Net Proceeds from any Asset Sale (or Event of Loss Proceeds) that are not applied as provided and within the time period set forth in the second paragraph of this Section 4.10 (it being understood that any portion of such Net Proceeds (or Event of Loss Proceeds) used to make an offer to purchase Notes, as described in clause (1) of the second paragraph of this Section 4.10; , shall be deemed to have been invested whether or not such offer is accepted) will be deemed to constitute “Excess Proceeds.” When the aggregate amount of Excess Proceeds exceeds $15.0 million, the Company shall make an Asset Sale Offer to all Holders (and, at the option of the Company, to holders of any Pari Passu Indebtedness) to purchase the maximum principal amount of Notes (and such Pari Passu Indebtedness) that is an integral multiple of $2,000 that may be purchased out of the Excess Proceeds at an offer price in cash in an amount equal to 100% of the principal amount thereof (or, in the event such Pari Passu Indebtedness was issued with significant original issue discount, 100% of the accreted value thereof), plus accrued and unpaid interest and Liquidated Damages, if any (or, in respect of such Pari Passu Indebtedness, such lesser price, if any, as may be provided for by the terms of such Pari Passu Indebtedness), to the date fixed for the closing of such offer, in accordance with the procedures set forth in this Indenture. The Company will commence an Asset Sale Offer with respect to Excess Proceeds within ten Business Days after the date that Excess Proceeds exceed $15.0 million as provided in Section 3.09 hereof. To the extent that the aggregate amount of Notes (and such Pari Passu Indebtedness) tendered pursuant to an Asset Sale Offer is less than the Excess Proceeds, the Company may use any remaining Excess Proceeds for any purpose that is not prohibited by this Indenture. If the aggregate principal amount of Notes surrendered by holders thereof exceeds the amount of Excess Proceeds, the Trustee shall select the Notes (and such Pari Passu Indebtedness) to be purchased as provided in Section 3.09 hereof. Upon completion of any such Asset Sale Offer, the amount of Excess Proceeds shall be reset at zero. The Company will comply with the requirements of Rule 14e-1 under the Exchange Act and any other securities laws and regulations to the extent such laws or regulations are applicable in connection with the repurchase of the Notes pursuant to an Asset Sale Offer. To the extent that the provisions of any securities laws or regulations conflict with the provisions of this Indenture, the Company will comply with the applicable securities laws and regulations and shall not be deemed to have breached its obligations described in this Indenture by virtue thereof.
Appears in 2 contracts
Samples: Indenture (Hughes Communications, Inc.), Indenture (HNS Finance Corp.)
Asset Sales. (a) The Company Borrower shall not, and shall not permit any of its Restricted Subsidiaries toSubsidiary to consummate, consummate directly or indirectly, an Asset Sale unless Sale, unless:
(i1) the Company Borrower or the applicable such Restricted Subsidiary, as the case may be, receives consideration at the time of such Asset Sale at least equal to the fair market value Fair Market Value (as determined at the time of contractually agreeing to such Asset Sale) of the assets sold or otherwise disposed of; and
(2) except in the case of (as determined in good faith by the Company); (ii) a Permitted Asset Swap, at least 75% of the aggregate consideration therefor received from such Asset Sale and all other Asset Sales since February 8, 2012, on a cumulative basis, received by the Company Borrower or the such Restricted Subsidiary, as the case may be, from such Asset Sale shall be is in the form of cash cash, Cash Equivalents or Cash EquivalentsAdditional Assets, or any combination thereof; provided that the amount of:
(aA) any liabilities (as shown reflected on the Company’s or such Restricted SubsidiaryBorrower’s most recent consolidated balance sheet or in the footnotes thereto, or if incurred or accrued subsequent to the date of such balance sheet, such liabilities that would have been shown reflected on the CompanyBorrower’s consolidated balance sheet or such Restricted Subsidiary’s balance 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 CompanyBorrower) of the Company or any such Restricted Subsidiary (Borrower, other than liabilities that are by their terms subordinated to the Notes) Loans, that are assumed by the transferee of any such assets; assets (bor are otherwise extinguished in connection with the transactions relating to such Asset Sale) and for which the Borrower and all such Restricted Subsidiaries have been validly released by all applicable creditors in writing,
(B) any securities, notes or other obligations or assets received by the Company Borrower or any such Restricted Subsidiary from such transferee that are converted by the Company Borrower or such Restricted Subsidiary into cash within 180 days of the receipt thereof or Cash Equivalents, or by their terms are required to be satisfied for cash or Cash Equivalents (to the extent of the cash or Cash Equivalents received); and , in each case, within 180 days following the closing of such Asset Sale, and
(cC) any Designated Non-cash Consideration received by the Company Borrower or any of its such Restricted Subsidiaries Subsidiary in such Asset Sale having an aggregate fair market valueFair Market Value, taken together with all other Designated Non-cash Consideration received pursuant to this clause (cC) after December 14, 2010 that is at that time outstanding, not to exceed the greater of (x) $150 250.0 million and 5(y) 2.25% of Total Assets at the time of the receipt of such Designated Non-cash Consideration (Consideration, with the fair market value 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 of (a), (b) and (c) above, shall be deemed to be cash for the purposes of this provision and for no other purpose.
(b) Within 450 days after the Borrower’s or for purposes any Restricted Subsidiary’s receipt of any Net Asset Sale Proceeds of any Asset Sale, the Borrower or such Restricted Subsidiary, at its option, may apply the Net Asset Sale Proceeds from such Asset Sale,
(1) to permanently reduce:
(A) First Lien Obligations or other Obligations under Senior Indebtedness (other than any Second Lien Obligations or Junior Lien Obligations) that is secured by a Lien permitted under this Agreement (which Lien is either (x) senior to the Lien of the second paragraph Loans with respect to the Collateral or (y) on an asset not constituting Collateral (in the case of this clause (y), such permanent reduction shall only be permitted with the Net Asset Sale Proceeds of an Asset Sale consisting of assets which do not constitute Collateral)), and, in each case, to correspondingly reduce commitments with respect thereto;
(B) Second Lien Obligations of the Borrower or any Restricted Subsidiary (and to correspondingly reduce any outstanding commitments with respect thereto); provided that to the extent the Borrower or any Restricted Subsidiary reduces or makes an offer to prepay, as applicable, Second Lien Obligations other than the Loans, the Borrower shall equally and ratably reduce or make an offer to prepay, as applicable, the Loans at 100% of the principal amount thereof, plus the amount of accrued but unpaid interest, if any, on the principal amount of the Loans that would otherwise be prepaid; or
(C) Indebtedness of a Restricted Subsidiary that is not a Subsidiary Guarantor, other than Indebtedness owed to the Borrower or another Restricted Subsidiary;
(2) to make (a) an Investment in any one or more businesses, provided that such Investment in any business is in the form of the acquisition of Capital Stock and results in the Borrower 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, in each of clauses (a) through (c), that are used or useful in a Similar Business or that replace the businesses, properties and/or assets that are the subject of such Asset Sale; or
(3) to invest in Additional Assets; provided that, in the case of clause (2) above, a binding commitment shall be treated as a permitted application of the Net Asset Sale Proceeds from the date of such commitment so long as the Borrower or such other 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 180 days after the end of such 450-day period (an “Acceptable Commitment”) and, in the event any Acceptable Commitment is later cancelled or terminated for any reason within such 180-day period and before the Net Asset Sale Proceeds are applied in connection therewith, the Borrower or such Restricted Subsidiary enters into another Acceptable Commitment (a “Second Commitment”) within 180 days of such cancellation or termination; provided, further, that if any Second Commitment is later cancelled or terminated for any reason before such Net Asset Sale Proceeds are applied or such Net Asset Sale Proceeds are not applied within such 180-day period, then such Net Asset Sale Proceeds shall constitute Excess Proceeds.
(c) Any Net Asset Sale Proceeds that are not invested or applied as provided and within the time period set forth in Section 4.109.8(b) shall be deemed to constitute “Excess Proceeds.” When the aggregate amount of Excess Proceeds exceeds $50.0 million, the Borrower shall make an offer to all Lenders and, if required or permitted by the terms of any Indebtedness the Liens securing which rank equally and ratably to the Loans (“Equal Priority Indebtedness”), to the holders of such Equal Priority Indebtedness (an “Asset Sale Offer”), to purchase the maximum aggregate principal amount of the Loans and such Equal Priority Indebtedness that is a minimum of $2,000 or an integral multiple of $1,000 in excess thereof that may be purchased out of the Excess Proceeds at an offer price in cash in an amount equal to 100% of the principal amount thereof, plus accrued and unpaid interest and, if applicable, additional interest, if any, to the date fixed for the closing of such offer, in accordance with the procedures set forth in this Agreement. In the event that the Borrower or a Restricted Subsidiary prepays any Equal Priority Indebtedness that is outstanding under a revolving credit or other committed loan facility pursuant to an Asset Sale Offer, the Borrower or such Restricted Subsidiary shall cause the related loan commitment to be reduced in an amount equal to the principal amount so prepaid. The Borrower will commence an Asset Sale Offer with respect to Excess Proceeds within ten Business Days after the date that Excess Proceeds exceed $50.0 million by mailing the notice required pursuant to the terms of this Agreement, with a copy to the Administrative Agent. To the extent that the aggregate amount of Loans and any other Equal Priority Indebtedness tendered pursuant to an Asset Sale Offer is less than the Excess Proceeds, the Borrower may use any remaining Excess Proceeds for general corporate purposes, subject to other covenants contained in this Agreement. If the aggregate principal amount of Loans, or the Equal Priority Indebtedness surrendered by such holders thereof exceeds the amount of Excess Proceeds, the Administrative Agent shall select the Loans, and such other Equal Priority Indebtedness to be purchased on a pro rata basis (so long as an authorized denomination results therefrom) based on the accreted value or principal amount of the Loans or such Equal Priority Indebtedness which have been accepted for repayment by the applicable Lender. Upon completion of any such Asset Sale Offer, the amount of Excess Proceeds shall be reset at zero. Additionally, the Borrower may, at its option, make an Asset Sale Offer using proceeds from any Asset Sale at any time after consummation of such Asset Sale; andprovided that such Asset Sale Offer shall be in an aggregate amount of not less than $50.0 million. Upon consummation of such Asset Sale Offer, any Net Asset Sale Proceeds not required to be used to purchase Loans shall not be deemed Excess Proceeds.
(d) Pending the final application of any Net Asset Sale Proceeds pursuant to this Section 9.8, the Borrower or the applicable Restricted Subsidiary may apply such Net Asset Sale Proceeds temporarily to reduce Indebtedness outstanding under a revolving credit facility or otherwise invest such Net Asset Sale Proceeds in any manner not prohibited by this Agreement.
Appears in 2 contracts
Samples: Credit Agreement (Samson Resources Corp), Second Lien Term Loan Credit Agreement (Samson Holdings, Inc.)
Asset Sales. The Company shall not, and shall not permit any of its Restricted Subsidiaries to, consummate an Asset Sale unless (i) 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 (as determined in good faith by the Company); (ii) solely with respect to any Asset Sale or series of related Asset Sales for which the Company and its Restricted Subsidiaries receive aggregate consideration in excess of $50.0 million, at least 75% of the consideration received 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 liabilities (as shown on the Company’s or such Restricted Subsidiary’s most recent balance sheet or in the footnotes thereto, or if incurred or accrued subsequent to the date of such balance sheet, such liabilities that would have been shown on the Company’s or such Restricted Subsidiary’s balance sheet or the footnotes thereto if such incurrence or accrual had taken place on the date of such balance sheet, as determined by the Company) of the Company or any such Restricted Subsidiary (other than liabilities that are by their terms subordinated to the Notes) that are assumed by the transferee of any such assets; (b) any securities, notes or other obligations received by the Company or any such Restricted Subsidiary from such transferee that are converted by the Company or such Restricted Subsidiary into cash within 180 days of the receipt thereof (to the extent of the cash received); and (c) any Designated Non-cash 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 Non-cash Consideration received pursuant to this clause (c) after December 14, 2010 that is at that time outstanding, not to exceed the greater of $150 million and 5% 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, in each of (a), (b) and (c) above, be deemed to be cash for the purposes of this provision or for purposes of the second paragraph of this Section 4.10; and,
Appears in 2 contracts
Samples: Indenture (TransDigm Group INC), Indenture (TransDigm Group INC)
Asset Sales. (a) The Company shall Borrower will not, and shall will not permit any of its Restricted Subsidiaries to, consummate an Asset Sale unless unless:
(i) the Company Borrower or the applicable such Restricted Subsidiary, as the case may be, receives consideration at the time of such the Asset Sale at least equal to the fair market value (as determined, as of the time of contractually agreeing to such Asset Sale, in good faith by senior management or the Board of Directors of the Borrower, whose determination shall be conclusive, provided that in the case of any Asset Sale involving consideration in excess of $75.0 million, such determination shall be made by the Board of Directors of the Borrower) of the assets or Equity Interests issued or sold or otherwise disposed of (as determined in good faith by the Company)of; and
(ii) except for any Permitted Asset Swap, at least 75% of the consideration received in the Asset Sale by the Company Borrower or the such Restricted Subsidiary, as the case may be, from such Asset Sale shall be Subsidiary is in the form of cash or Cash Equivalents; provided that .
(b) For purposes of Section 7.03(a)(ii), the amount of:
of (ai) any liabilities (as shown on the CompanyBorrower’s or such Restricted Subsidiary’s most recent balance sheet or in the footnotes notes thereto, or if incurred or accrued subsequent to the date of such balance sheet, such liabilities that would have been shown on such balance sheet or in the Company’s or such Restricted Subsidiary’s balance or the footnotes notes thereto if such incurrence or accrual had taken place on or prior to the date of such balance sheet, as determined in good faith by the CompanyBorrower) of the Company Borrower or any such Restricted Subsidiary (other than liabilities that are by their terms subordinated in right of payment to the NotesRevolving Facility Obligations) that are assumed by the transferee of any such assets; assets (bor are otherwise extinguished in connection with the transactions relating to such Asset Sale), if such liabilities are not Indebtedness, or the Borrower or such Restricted Subsidiary has been released from all liability on payment of the principal amount of such liabilities in connection with such Asset Sale, (ii) any securities, notes or other obligations received by the Company Borrower or any such Restricted Subsidiary from such transferee that are converted by the Company Borrower or such Restricted Subsidiary into cash within 180 days of the receipt thereof or Cash Equivalents (to the extent of the cash or Cash Equivalents received); ) within 180 days following the closing of such Asset Sale and (ciii) any Designated Non-cash Cash Consideration received by the Company Borrower or any of its Restricted Subsidiaries in such Asset Sale having an aggregate fair market valuevalue (as determined in good faith by the Board of Directors of the Borrower), taken together with all other Designated Non-cash Cash Consideration received pursuant to this clause (ciii) after December 14, 2010 that is at that time outstanding, not to exceed the greater of $150 150.0 million and 520.0% of Total Assets EBITDA at the time of the receipt of such Designated Non-cash Cash Consideration (with the fair market value of each item of Designated Non-cash Cash Consideration being measured at the time received and without giving effect to subsequent changes in value), shall, in each of (a), (b) and (c) above, shall be deemed to be cash for the purposes of this provision or Section 7.03 and for purposes of the second paragraph of this Section 4.10; andno other purpose.
Appears in 2 contracts
Samples: Credit Agreement (Warner Music Group Corp.), Credit Agreement (Warner Music Group Corp.)
Asset Sales. (a) The Company shall Borrower will not, and shall will not permit any of its Restricted Subsidiaries to, consummate an Asset Sale unless unless:
(i) the Company Borrower or the applicable such Restricted Subsidiary, as the case may be, receives consideration at the time of such the Asset Sale at least equal to the fair market value (as determined, as of the time of contractually agreeing to such Asset Sale, in good faith by senior management or the Board of Directors of the Borrower, whose determination shall be conclusive, provided that in the case of any Asset Sale involving consideration in excess of $50.075.0 million, such determination shall be made by the Board of Directors of the Borrower) of the assets or Equity Interests issued or sold or otherwise disposed of (as determined in good faith by the Company)of; and
(ii) except for any Permitted Asset Swap, at least 75% of the consideration received in the Asset Sale by the Company Borrower or the such Restricted Subsidiary, as the case may be, from such Asset Sale shall be Subsidiary is in the form of cash or Cash Equivalents; provided that .
(b) For purposes of Section 7.03(a)(ii), the amount of:
of (ai) any liabilities (as shown on the CompanyBorrower’s or such Restricted Subsidiary’s most recent balance sheet or in the footnotes notes thereto, or if incurred or accrued subsequent to the date of such balance sheet, such liabilities that would have been shown on such balance sheet or in the Company’s or such Restricted Subsidiary’s balance or the footnotes notes thereto if such incurrence or accrual had taken place on or prior to the date of such balance sheet, as determined in good faith by the CompanyBorrower) of the Company Borrower or any such Restricted Subsidiary (other than liabilities that are by their terms subordinated in right of payment to the NotesRevolving Facility Obligations) that are assumed by the transferee of any such assets; assets (bor are otherwise extinguished in connection with the transactions relating to such Asset Sale), if such liabilities are not Indebtedness, or the Borrower or such Restricted Subsidiary has been released from all liability on payment of the principal amount of such liabilities in connection with such Asset Sale, (ii) any securities, notes or other obligations received by the Company Borrower or any such Restricted Subsidiary from such transferee that are converted by the Company Borrower or such Restricted Subsidiary into cash within 180 days of the receipt thereof or Cash Equivalents (to the extent of the cash or Cash Equivalents received); ) within 180 days following the closing of such Asset Sale and (ciii) any Designated Non-cash Cash Consideration received by the Company Borrower or any of its Restricted Subsidiaries in such Asset Sale having an aggregate fair market valuevalue (as determined in good faith by the Board of Directors of the Borrower), taken together with all other Designated Non-cash Cash Consideration received pursuant to this clause (ciii) after December 14, 2010 that is at that time outstanding, not to exceed the greater of (x) $150 100.0150.0 million and 5(y) 9.0% of Total Assets Consolidated Tangible Assets20.0% of EBITDA at the time of the receipt of such Designated Non-cash Cash Consideration (with the fair market value of each item of Designated Non-cash Cash Consideration being measured at the time received and without giving effect to subsequent changes in value), shall, in each of (a), (b) and (c) above, shall be deemed to be cash for the purposes of this provision or Section 7.03 and for purposes of the second paragraph of this Section 4.10; andno other purpose.
Appears in 2 contracts
Samples: Credit Agreement (Warner Music Group Corp.), Credit Agreement (Warner Music Group Corp.)
Asset Sales. (a) The Company shall will not, and shall will not permit any of its Restricted Subsidiaries to, consummate an make any Asset Sale unless (except with respect to an Event of Loss) unless:
(i) 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 Fair Market Value of the assets or Equity Interests issued or sold or otherwise disposed of (as determined in good faith by the Company)of; and
(ii) at least 75% of the consideration therefor received by the Company or the such Restricted Subsidiary, as the case may be, from such Asset Sale shall be Subsidiary is in the form of cash or Cash Equivalents; provided that the amount of:
(a1) any liabilities (as shown on the Company’s or such Restricted Subsidiary’s most recent balance sheet or in the footnotes thereto, or if incurred or accrued subsequent to the date of such balance sheet, such liabilities that would have been shown on the Company’s or such Restricted Subsidiary’s balance or the footnotes thereto if such incurrence or accrual had taken place on the date of such balance sheet, as determined by the Company) of the Company or any such Restricted Subsidiary of the Company (other than contingent liabilities and liabilities that are by their terms subordinated to the NotesNotes or any Notes Guarantee thereof) that are assumed by the transferee of any such assets; assets and with respect to which the Company or such Restricted Subsidiary is unconditionally released from further liability;
(b2) (A) 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 within 180 days of the receipt thereof or Cash Equivalents (to the extent of the cash received); or Cash Equivalents received in that conversion) and (cB) any Designated Non-cash Consideration received accounts receivable of a business retained by the Company or any of its Restricted Subsidiaries Subsidiaries, as the case may be, following the sale of such business that (i) are not past due more than 30 days and (ii) do not have a payment date greater than 90 days from the date of the invoices creating such accounts receivable; and
(3) any Designated Non-Cash Consideration received by the Company or any such Restricted Subsidiary in such Asset Sale having an aggregate fair market value, taken together with all other Designated Non-cash Consideration received pursuant to this clause (c) after December 14, 2010 Sale; provided that is at that time outstanding, not to exceed the greater of $150 million and 5% of Total Assets at the time of the receipt of such Designated Non-cash Cash Consideration, the aggregate Fair Market Value of all Designated Non-Cash Consideration (with the fair market value Fair Market Value of each item of Designated Non-cash Cash Consideration being measured at the time received and without giving effect to subsequent changes in value), shall, less the amount of Net Proceeds previously realized in each cash or Cash Equivalents from the sale of previously received Designated Non-Cash Consideration is less than the greater of (a), (bi) $2.5 million and (cii) above0.5% of Consolidated Tangible Assets, will be deemed to be cash for the purposes of this provision Section 5.10.
(b) Within 365 days after the receipt of any Net Proceeds from an Asset Sale by the Company or for purposes a Restricted Subsidiary of the second Company, the Company or such Restricted Subsidiary may apply such Net Proceeds at its option:
(i) to permanently reduce Indebtedness under the Credit Facilities (and to correspondingly reduce commitments with respect thereto);
(ii) with respect to Asset Sales of assets of a Restricted Subsidiary of the Company that is not a Guarantor, to permanently reduce Indebtedness of a Restricted Subsidiary of the Company that is not a Guarantor (and to correspondingly reduce commitments with respect thereto), other than Indebtedness owed to the Company or another Subsidiary of the Company;
(iii) to the extent the Asset Sale constituted the sale of consumer loans, or other loans generated through the conduct of Similar Businesses, to the making of advances and the extension of credit to customers in the ordinary course of business consistent with past practice that are either (A) recorded as accounts receivable or consumer loans on the consolidated balance sheet of the Company or (B) consumer loans the making of which are facilitated by the Company or a Restricted Subsidiary acting as a credit services organization or similar services provider in an amount no greater than the cash used to cash collateralize or repurchase such loans; and/or
(iv) to the making of a capital expenditure or the acquisition of a controlling interest in another business or other assets, in each case, that are used or useful in a Similar Business or that replace the assets that are the subject of such Asset Sale.
(c) Pending the final application of any such Net Proceeds, the Company or a Restricted Subsidiary of the Company may temporarily reduce Indebtedness under the Credit Facilities or otherwise invest such Net Proceeds in any manner that is not prohibited by this Indenture.
(d) Any Net Proceeds from Asset Sales that are not applied or invested (by election or as a result of the passage of time) as provided in the first sentence of the preceding paragraph will be deemed to constitute “Excess Proceeds.” When the aggregate amount of Excess Proceeds exceeds $5.0 million, the Company will be required to make an offer (an “Asset Sale Offer”) to all holders of Notes and all holders of Pari Passu Indebtedness evidenced or governed by Pari Passu Payment Lien Documents containing provisions similar to those set forth in this Indenture to purchase from such holders on a ratable basis the maximum principal amount of Notes and such Pari Passu Indebtedness that may be purchased out of the Excess Proceeds. The offer price for such Asset Sale Offer shall be an amount in cash equal to 100% of the principal amount of the Notes and such Pari Passu Indebtedness (or, in the case of Pari Passu Indebtedness issued with original issue discount, 100% of the accreted value thereof), plus accrued and unpaid interest to the date of purchase, in accordance with the procedures set forth in this Indenture. To the extent that the aggregate amount of Notes and Pari Passu Indebtedness tendered pursuant to an Asset Sale Offer is less than the Excess Proceeds, the Company and its Restricted Subsidiaries may use any remaining Excess Proceeds for any purpose not otherwise prohibited by this Indenture. If the aggregate principal amount of Notes and Pari Passu Indebtedness surrendered by holders thereof exceeds the amount of the Excess Proceeds, the Trustee will select the Notes and the applicable agent or representative of the holders of such Pari Passu Indebtedness or the Company will select such Pari Passu Indebtedness to be purchased on a pro rata basis based upon the principal amount of Notes tendered and the principal amount or accreted value, as applicable, of such Pari Passu Indebtedness tendered (subject to adjustments so that no Notes in an unauthorized denomination are repurchased in part). Upon completion of such offer to purchase, the amount of Excess Proceeds shall be reset at zero. Notes (or portions thereof) purchased pursuant to an Asset Sale Offer will be cancelled and may not be reissued.
(e) The Company will comply, to the extent applicable, with the requirements of Section 14(e) of, and Rule 14e-1 under, the Exchange Act and any other securities laws and regulations thereunder in connection with the repurchase of the Notes as a result of an Asset Sale. To the extent that the provisions of any securities laws or regulations conflict with the provisions of this Indenture (including Section 4.10; and3.09), the Company will comply with the applicable securities laws and regulations and shall not be deemed to have breached its obligations under this Indenture by virtue of its compliance with such securities laws or regulations.
Appears in 2 contracts
Samples: Indenture (CURO Group Holdings Corp.), Indenture (CURO Group Holdings Corp.)
Asset Sales. The Effect any Asset Sale, or agree to effect any Asset Sale, except that the following shall be permitted:
(a) disposition of used, worn out, obsolete or surplus property by any Company in the ordinary course of business and the abandonment or other disposition of Intellectual Property that is, in the reasonable judgment of Borrowers, no longer economically practicable to maintain or useful in the conduct of the business of the Companies taken as a whole;
(b) so long as no Default is then continuing or would result therefrom, any other Asset Sale (other than the Equity Interests of any Wholly Owned Subsidiary unless all of the Equity Interests of such Subsidiary then owned by any of the Companies are sold to the purchaser thereof in a sale permitted by this clause (b)) for fair market value, with at least 80% of the consideration received for all such Asset Sales payable in cash upon such sale; provided, however, that with respect to any such Asset Sale pursuant to this clause (b), the aggregate consideration received during any fiscal year for all such Asset Sales shall not exceed $150 million;
(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 shall consolidations, and liquidations and dissolutions in compliance with Section 6.05;
(e) sales, transfers and other dispositions of Accounts for the fair market value thereof in connection with a Permitted Factoring Facility so long as at any time of determination the aggregate book value of the then outstanding Accounts subject to a Permitted Factoring Facility does not permit exceed an amount equal to $300 million less the amount of Indebtedness under all outstanding Securitization Facilities at such time less the amount of Indebtedness outstanding under Section 6.01(m) at such time;
(f) the sale or disposition of cash and Cash Equivalents in connection with a transaction otherwise permitted under the terms of this Agreement; 175
(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 (other than the Equity Interests of any Subsidiary unless all of the Equity Interests of such Subsidiary then owned by any of its the Companies are sold to the purchaser thereof in a sale permitted by this clause (h)) (i) by and among Unrestricted Grantors (other than Holdings), (ii) by and among Restricted Subsidiaries toGrantors organized under the laws of the same country (or jurisdictions within such same country), consummate an (iii) by Restricted Grantors to Unrestricted Grantors so long as the consideration paid by Unrestricted Grantors in each such Asset Sale unless does not exceed fair market value for such Asset Sale, (iv) by Unrestricted Grantors to Restricted Grantors of property for fair market value, and for aggregate consideration, not in excess of $25 million for all such Asset Sales following the Closing Date, (v) by Companies that are not Loan Parties to Loan Parties so long as the consideration paid by Loan Parties in each such Asset Sale does not exceed (1) the fair market value for such Asset Sale and (2) $25 million for all such Asset Sales following the Closing Date; 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 any Secured Parties pursuant to the relevant Security 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 relevant 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;
(i) the Company Companies may consummate Asset Swaps (other than Asset Swaps constituting all or substantially all of the asset of a Company), so long as (x) each such sale is in an arm’s-length transaction and the applicable Restricted Subsidiary, as the case may be, Company 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 consideration (as determined in good faith by the such Company); , (iiy) the Collateral Agent shall have a First Priority perfected Lien on the assets acquired pursuant to such Asset Swap at least 75% of to the consideration received by the Company or the Restricted Subsidiary, same extent as the case may be, from assets sold pursuant to such Asset Sale shall be in the form of cash or Cash Equivalents; provided that the amount of:
Swap (aimmediately prior to giving effect thereto) any liabilities (as shown on the Company’s or such Restricted Subsidiary’s most recent balance sheet or in the footnotes thereto, or if incurred or accrued subsequent to the date of such balance sheet, such liabilities that would have been shown on the Company’s or such Restricted Subsidiary’s balance or the footnotes thereto if such incurrence or accrual had taken place on the date of such balance sheet, as determined by the Company) of the Company or any such Restricted Subsidiary (other than liabilities that are by their terms subordinated to the Notes) that are assumed by the transferee of any such assets; (b) any securities, notes or other obligations received by the Company or any such Restricted Subsidiary from such transferee that are converted by the Company or such Restricted Subsidiary into cash within 180 days of the receipt thereof (to the extent of the cash received); and (cz) any Designated Non-cash Consideration received by the Company or any of its Restricted Subsidiaries in such Asset Sale having an aggregate fair market value, taken together with value of all other Designated Non-cash Consideration received assets sold pursuant to this clause (ci) after December 14shall not exceed $25 million in the aggregate since the Closing Date; provided that so long as the assets acquired by any Company pursuant to the respective Asset Swap are located in the same country as the assets sold by such Company, 2010 that is at that time outstandingsuch $25 million aggregate cap will not apply to such Asset Swap;
(j) sales, not transfers and other dispositions of Receivables and Related Security to exceed the greater of $150 million and 5% of Total Assets at the time of the receipt of such Designated Non-cash Consideration (with a Securitization Subsidiary for the fair market value thereof and all sales, transfers or other dispositions of each item Securitization Assets by a Securitization Subsidiary under, and pursuant to, a related Securitization Facility permitted under Section 6.01(e);
(k) so long as no Default is then continuing or would result therefrom, the arm’s-length sale or disposition for cash of Designated Non-cash Consideration being measured at Equity Interests in a Joint Venture Subsidiary for fair market value or the time received and without giving effect issuance of Equity Interests in a Joint Venture Subsidiary; provided, 176 however, that the aggregate fair market value of all such Equity Interests sold or otherwise disposed of pursuant to subsequent changes in value), shall, in each this clause (k) following the Closing Date shall not exceed $300 million; and
(l) issuances of (aEquity Interests permitted under Section 6.13(b)(i), (bii), (iii), (iv) and (c) abovevi). To the extent the Required Lenders or such other number of Lenders whose consent is required under Section 11.02, be deemed to be cash for as applicable, waive the purposes of this provision or for purposes of the second paragraph provisions of this Section 4.10; and6.06 with respect to the sale of any Collateral or any Collateral is sold as permitted by this Section 6.06, and so long as the Lien of the Term Loan Administrative Agent or the Term Loan Collateral Agent (or any other Term Loan Agents) pursuant to the Term Loan Documents in such Collateral is also released, such Collateral (unless sold to a Loan Party) shall be sold free and clear of the Liens created by the Security Documents, and so long as the Loan Parties shall have provided the Agents such certificates or documents as any Agent shall reasonably request in order to demonstrate compliance with this Section 6.06, the Agents shall take all actions as the Administrative Borrower reasonably requests in order to effect the foregoing.
Appears in 2 contracts
Samples: Credit Agreement (Novelis Inc.), Credit Agreement (Novelis South America Holdings LLC)
Asset Sales. The Company shall Issuer will not, and shall will not permit any of its Restricted Subsidiaries to, consummate an Asset Sale unless unless:
(i1) 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 Issuer (as determined in good faith by the Company); (ii) at least 75% of the consideration received by the Company or the Restricted Subsidiary, as the case may be, from such ) receives consideration at the time of the Asset Sale shall be 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 Issuer or such Restricted Subsidiary is in the form of cash cash, Cash Equivalents or Cash Equivalents; provided that Marketable Securities. For purposes of this provision, each of the amount offollowing shall be deemed to be cash:
(aA) any liabilities (as shown on the Company’s or such Restricted Subsidiary’s most recent balance sheet or in the footnotes thereto, or if incurred or accrued subsequent to the date of such balance sheet, such liabilities that would have been shown on the Company’s or such Restricted Subsidiary’s balance or the footnotes thereto if such incurrence or accrual had taken place on the date of such balance sheet, as determined by the Company) of the Company Issuer or any such Restricted Subsidiary (other than contingent liabilities and liabilities that are by their terms subordinated to the NotesNotes or any Note Guarantee) that are assumed by the transferee of any such assets; assets and, as a result of which, the Issuer or such Restricted Subsidiary is released from further liability;
(bB) any securities, notes or notes, other obligations or assets received by the Company Issuer or any such Restricted Subsidiary from such transferee that are converted by the Company Issuer or such Restricted Subsidiary into cash or Cash Equivalents within 180 days of the receipt thereof (thereof, to the extent of the cash received); and or Cash Equivalents received in that conversion;
(cC) any Designated Non-cash Consideration received by the Company Issuer or any of its Restricted Subsidiaries in such Asset Sale having an Sale; provided that the aggregate fair market valueFair Market Value of such Designated Non-cash Consideration, taken together with the Fair Market Value at the time of receipt of all other Designated Non-cash Consideration received pursuant to this clause (cC) after December 14, 2010 that less the amount of Net Proceeds previously realized in cash from prior Designated Non-cash Consideration is at that time outstanding, not to exceed less than the greater of $150 million and 5(x) 7.5% of Total Tangible Assets at the time of the receipt of such Designated Non-cash Consideration (with the fair market value Fair Market Value of each item of Designated Non-cash Consideration being measured at the time received and without giving effect to subsequent changes in value) and (y) $750 million; and
(D) any Capital Stock or assets of the kind referred to in clause (2) or (4) of the next paragraph of this Section 4.08. Within 450 days after the receipt of any Net Proceeds from an Asset Sale, the Issuer (or the applicable Restricted Subsidiary, as the case may be) may:
(a) apply such Net Proceeds, at its option:
(1) to repay (w) Indebtedness and other Obligations under a Credit Facility, (x) any Indebtedness that was secured by the assets sold in such Asset Sale, (y) other pari passu Indebtedness (provided that the Issuer shall also equally and ratably reduce Indebtedness under the Notes by making an offer, in accordance with the procedures set forth below for an Asset Sale, to all Holders to purchase at a purchase price equal to 100% of the principal amount thereof, plus accrued and unpaid interest on the pro rata principal amount of Notes), shallor (z) Indebtedness of a Restricted Subsidiary that is not a Guarantor, in each case other than Indebtedness owed to the Issuer or an Affiliate of the Issuer;
(2) to acquire all or substantially all of the assets of, or any Capital Stock of, another Permitted Business;
(3) to make a capital expenditure; or
(4) to acquire other assets that are not classified as current assets under GAAP and that are used or useful in a Permitted Business; or
(b) enter into a binding commitment to apply the Net Proceeds pursuant to clauses (a) (2), (b3) and or (c4) above, provided that such binding commitment shall be deemed to be cash for treated as a permitted application of the purposes Net Proceeds from the date of such commitment until the earlier of (x) the date on which such acquisition or expenditure is consummated, and (y) the 180th day following the expiration of the aforementioned 450-day period. Pending the final application of any Net Proceeds, the Issuer may temporarily reduce revolving credit borrowings or otherwise invest the Net Proceeds in any manner that is not prohibited by this provision Indenture. Any Net Proceeds from Asset Sales that are not applied or for purposes of invested as provided in the second paragraph of this Section 4.104.08 will constitute “Excess Proceeds.” When the aggregate amount of Excess Proceeds exceeds $750 million, within ten (10) Business Days thereof, the Issuer will make an offer to all holders of Notes (an “Asset Sale Offer”) and all holders of other Indebtedness that is pari passu with the notes containing provisions similar to those set forth in this Indenture with respect to offers to purchase or redeem with the proceeds of sales of assets to purchase the maximum principal amount of Notes and such other pari passu Indebtedness that may be purchased out of the Excess Proceeds. The offer price in any Asset Sale Offer will be equal to 100% of the principal amount plus accrued and unpaid interest to, but excluding, the date of purchase and will be payable in cash. If any Excess Proceeds remain after consummation of an Asset Sale Offer, the Issuer may use those Excess Proceeds for any purpose not otherwise prohibited by this Indenture. If the aggregate principal amount of Notes and other pari passu Indebtedness tendered into such Asset Sale Offer exceeds the amount of Excess Proceeds, the Trustee will select the Notes and such other pari passu Indebtedness to be purchased on a pro rata basis. Upon completion of each Asset Sale Offer, the amount of Excess Proceeds will be reset at zero. The Issuer will comply with the requirements of Rule 14e-1 under the Exchange Act and any other securities laws and regulations thereunder to the extent those laws and regulations are applicable in connection with each repurchase of notes pursuant to an Asset Sale Offer. To the extent that the provisions of any securities laws or regulations conflict with the Asset Sale provisions of this Indenture, the Issuer will comply with the applicable securities laws and regulations and will not be deemed to have breached its obligations under the Asset Sale provisions of this Indenture by virtue of such compliance. Not later than the date upon which written notice of an Asset Sale Offer is delivered to the Trustee as provided above, the Issuer shall deliver to the Trustee an Officers’ Certificate as to (i) the amount of the Excess Proceeds, (ii) the allocation of the Net Proceeds from the Asset Sales pursuant to which such Asset Sale Offer is being made and (iii) the compliance of such allocation with the provisions of Section 4.08. Upon the expiration of the period for which the Asset Sale Offer remains open (the “Offer Period”), the Issuer shall deliver to the Trustee for cancellation the Notes or portions thereof that have been properly tendered to and are to be accepted by the Issuer. The Trustee (or a Paying Agent, if not the Trustee) shall, on the date of purchase, mail or deliver payment to each tendering Holder in the amount of the purchase price. In the event that the Excess Proceeds delivered by the Issuer to the Trustee is greater than the purchase price of the Notes tendered, the Trustee shall deliver the excess to the Issuer immediately after the expiration of the Offer Period for application in accordance with this Section 4.08. Holders electing to have a Note purchased shall be required to surrender the Note, with the form entitled “Option of Holder to Elect Purchase” attached to the Note duly completed, to the Issuer at the address specified in the notice at least three Business Days prior to the purchase date. Holders shall be entitled to withdraw their election if the Trustee or the Issuer receives not later than one Business Day prior to the purchase date, a telegram, telex, facsimile transmission or letter setting forth the name of the Holder, the principal amount of the Note which was delivered by the Holder for purchase and a statement that such Holder is withdrawing his election to have such Note purchased. If at the end of the Offer Period more Notes are tendered pursuant to an Asset Sale Offer than the Issuer is required to purchase, selection of such Notes for purchase shall be made by the Trustee in compliance with the requirements of the principal national securities exchange, if any, on which such Notes are listed, or if such Notes are not so listed, on a pro rata basis, by lot or by such other method as the Trustee shall deem fair and appropriate (and in such manner as complies with applicable legal requirements); andprovided that no Notes of $1,000 or less shall be purchased in part. Notices of an Asset Sale Offer shall be mailed by first class mail, postage prepaid, at least 30 but not more than 60 days before the purchase date to each Holder of Notes at such Holder’s registered address. If any Note is to be purchased in part only, any notice of purchase that relates to such Note shall state the portion of the principal amount thereof that is to be purchased. A new Note in principal amount equal to the unpurchased portion of any Note purchased in part shall be issued in the name of the Holder thereof upon cancellation of the original Note. On and after the purchase date, unless the Issuer defaults in payment of the purchase price, interest shall cease to accrue on Notes or portions thereof purchased.
Appears in 2 contracts
Samples: Supplemental Indenture (Massey Energy Co), Supplemental Indenture (Alpha Natural Resources, Inc.)
Asset Sales. The Company shall notNo Obligor will, and shall not permit any of its Restricted Subsidiaries todirectly or indirectly, consummate or enter into a binding commitment to consummate an Asset Sale unless unless:
(i1) the Company or the applicable Restricted Subsidiarysuch Obligor, 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 which other disposition is made (as determined reasonably and in good faith by the CompanyBoard of such Obligor); , and
(ii2) at least 75% of the consideration received by the Company or the Restricted Subsidiary, as the case may be, such Obligor from such Asset Sale shall will be in the form of cash or Cash Equivalents; provided that Equivalents and will be received at the amount oftime of the consummation of any such Asset Sale. For purposes of this provision, each of the following shall be deemed to be cash:
(aA) any liabilities (as shown on the Company’s or such Restricted Subsidiary’s Obligors’ most recent balance sheet (or in the footnotes notes thereto, or if incurred or accrued subsequent ) (other than (i) Indebtedness subordinate in right of payment to the date of such balance sheetNotes, such (ii) contingent liabilities, (iii) liabilities that would have been shown on the Company’s or such Restricted Subsidiary’s balance or the footnotes thereto if such incurrence or accrual had taken place on the date of such balance sheet, as determined by the Company) Indebtedness to Affiliates of the Company or any such Restricted Subsidiary and (other than liabilities that are by their terms subordinated to the Notesiv) Non-Recourse Indebtedness) that are assumed by the transferee of any such assets; , and
(bB) to the extent of the cash received, any securities, notes or other obligations received by the Company or any such Restricted Subsidiary from such transferee that are converted by such Obligor into cash within 90 days of receipt. Notwithstanding the foregoing, an Obligor may consummate an Asset Sale without complying with the foregoing provisions if:
(1) such Obligor receives consideration at the time of such Asset Sale at least equal to the fair market value of the assets or other property sold, issued or otherwise disposed of (as evidenced by a resolution of the Board of such Obligor) as set forth in an Officers’ Certificate delivered to the Trustee,
(2) the transaction constitutes a “like-kind exchange” of the type contemplated by Section 1031 of the Internal Revenue Code, and
(3) the consideration for such Asset Sale constitutes Productive Assets; provided that any non-cash consideration not constituting Productive Assets received by such Obligor in connection with such Asset Sale that is converted into or sold or otherwise disposed of for cash or Cash Equivalents at any time within 360 days after such Asset Sale and any Productive Assets constituting cash or Cash Equivalents received by such Obligor in connection with such Asset Sale shall constitute Net Cash Proceeds subject to the provisions set forth above. Upon the consummation of an Asset Sale, the Company or the affected Obligor will be required to apply all Net Cash Proceeds that are received from such Restricted Subsidiary into cash Asset Sale within 180 360 days of the receipt thereof either:
(1) to reinvest (or enter into a binding commitment to invest, if such investment is effected within 360 days after the date of such commitment) in Productive Assets or in Asset Acquisitions not otherwise prohibited by this Indenture, or
(2) to permanently prepay or repay Indebtedness of any Obligor other than Indebtedness that is subordinate in right of payment to the Notes. Pending the final application of any such Net Cash Proceeds, the Obligors may temporarily reduce revolving Indebtedness or otherwise invest such Net Cash Proceeds in any manner not prohibited by this Indenture. On the 361st day after an Asset Sale or such earlier date, if any, as the Board of the Company or the affected Obligor determines not to apply the Net Cash Proceeds relating to such Asset Sale as set forth in clauses (1) or (2) of the preceding paragraph (each a “Net Proceeds Offer Trigger Date”), 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 (1) or (2) of the preceding paragraph (each a “Net Proceeds Offer Amount”), will be applied by the Company to make an offer to purchase (the “Net Proceeds Offer”), in accordance with the procedures set forth in Section 3.09 hereof, on a date (the “Net Proceeds Offer Payment Date”) not less than 30 nor more than 60 days following the applicable Net Proceeds Offer Trigger Date, on a pro rata basis (A) Notes at a purchase price in cash equal to 100% of the aggregate principal amount of Notes, in each case, plus accrued and unpaid interest and Liquidated Damages, if any, thereon on the Net Proceeds Offer Payment Date and (B) the outstanding 9.25% Notes, 8.75% Notes or other Indebtedness Incurred by the Company which is pari passu with the Notes, in each case to the extent of required by the cash received)terms thereof; and (c) provided that if at any Designated Nontime within 360 days after an Asset Sale any non-cash Consideration consideration received by the Company or any of its Restricted Subsidiaries the affected Obligor in connection with such Asset Sale having is converted into or sold or otherwise disposed of for cash, then such conversion or disposition will be deemed to constitute an Asset Sale hereunder and the Net Cash Proceeds thereof will be applied in accordance with this Section. To the extent that the aggregate fair market valueprincipal amount of Notes, taken together with all 9.25% Notes, 8.75% Notes or other Designated Non-cash Consideration received pari passu Indebtedness tendered pursuant to this clause (c) after December 14the Net Proceeds Offer is less than the Net Proceeds Offer Amount, 2010 that is at that time outstanding, not to exceed the greater of $150 million and 5% of Total Assets at the time of the receipt Obligors may use any remaining proceeds of such Designated Non-cash Consideration Asset Sales for general corporate purposes (with but subject to the fair market value other terms of each item this Indenture). Upon completion of Designated Non-cash Consideration being measured at a Net Proceeds Offer, the time received and without giving effect Net Proceeds Offer Amount relating to subsequent changes in value), shall, in each of (a), (b) and (c) above, such Net Proceeds Offer will be deemed to be cash for the purposes of this provision or zero for purposes of any subsequent Asset Sale. In the second paragraph event that a Restricted Subsidiary consummates an Asset Sale, only that portion of the Net Cash Proceeds therefrom (including any Net Cash Proceeds received upon the sale or other disposition of any noncash proceeds received in connection with an Asset Sale) that are distributed to or received by any Obligor will be required to be applied by the Obligors in accordance with the provisions of this paragraph. Notwithstanding the foregoing, if a Net Proceeds Offer Amount is less than $10 million the application of the Net Cash Proceeds constituting such Net Proceeds Offer Amount to a Net Proceeds Offer may be deferred until such time as such Net Proceeds Offer Amount plus the aggregate amount of all Net Proceeds Offer Amounts arising subsequent to September 25, 2003 from all Asset Sales by the Obligors in respect of which a Net Proceeds Offer has not been made aggregate at least $10 million at which time the affected Obligor will apply all Net Cash Proceeds constituting all Net Proceeds Offer Amounts that have been so deferred to make a Net Proceeds Offer (each date on which the aggregate of all such deferred Net Proceeds Offer Amounts is equal to $10 million or more will be deemed to be a Net Proceeds Offer Trigger Date). In connection with any Asset Sale with respect to assets having a book value in excess of $10 million or as to which it is expected that the aggregate consideration therefor to be received by the affected Obligor will exceed $10 million in value, such Asset Sale will be approved, prior to the consummation thereof, by the Board of the applicable Obligor. The Company 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 a Net Proceeds Offer. To the extent that the provisions of any securities laws or regulations conflict with the provisions of Section 3.09 hereof or this Section 4.10; and, the Company will comply with the applicable securities laws and regulations and will not be deemed to have breached its obligations under Section 3.09 hereof or this Section 4.10 by virtue of such compliance.
Appears in 2 contracts
Samples: Indenture (Casino One Corp), Indenture (Pinnacle Entertainment Inc)
Asset Sales. The Company shall not, and shall not permit any of its Restricted Subsidiaries to, consummate Consummate an Asset Sale unless Sale, unless:
(ia) the Company Borrower or the applicable Restricted any 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 (as determined in good faith by the CompanyBorrower as of the time of contractually agreeing to such Asset Sale); and
(iib) except in the case of a Permitted Asset Swap, at least 75% of the consideration therefor received by the Company Borrower or the Restricted such Subsidiary, as the case may be, from such Asset Sale shall be is in the form of cash or Cash EquivalentsPermitted Investments; provided that the amount of:
(ai) any liabilities (as shown reflected on the CompanyBorrower’s or such Restricted Subsidiary’s most recent balance sheet or in the footnotes thereto, or if incurred or accrued subsequent to the date of such balance sheet, such liabilities that would have been shown on the Company’s Borrower or such Restricted Subsidiary’s balance sheet or in the footnotes thereto if such incurrence or accrual had taken place on or prior to the date of such balance sheet, as determined in good faith by the CompanyBorrower) of the Company Borrower or any such Restricted Subsidiary (Subsidiary, other than liabilities that are by their terms subordinated to the Notes) Loans, that are assumed by the transferee of any such assets; assets and for which the Borrower and all of its Subsidiaries have been validly released by all creditors in writing,
(bii) any securities, notes or other obligations securities received by the Company Borrower or any such Restricted Subsidiary from such transferee that are converted by the Company Borrower or such Restricted Subsidiary into cash within 180 days of the receipt thereof (to the extent of the cash received); and ) within 180 days following the closing of such Asset Sale, and
(ciii) any Designated Non-cash Consideration received by the Company Borrower or any of its Restricted Subsidiaries such 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 (ciii) after December 14, 2010 that is at that time outstanding, not to exceed the greater of $150 million and 510.0% of Consolidated Total Assets at the time of the receipt of such Designated Non-cash Consideration (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 for purposes of this provision and for no other purpose, shall be deemed to be cash for purposes of this provision and for no other purpose. Within 365 days after the receipt of any Asset Sale Proceeds of any Asset Sale, the Borrower or such Subsidiary, at its option, may apply the Required Percentage of such Asset Sale Proceeds from such Asset Sale,
(a) to permanently reduce:
(i) Obligations under the Loan Documents, and to correspondingly reduce commitments with respect thereto;
(ii) Obligations under Senior Indebtedness that is secured by a Lien, which Lien is permitted by the Loan Documents, and to correspondingly reduce commitments with respect thereto;
(iii) Indebtedness of a Subsidiary that is not a Loan Party, other than Indebtedness owed to the Borrower or another Subsidiary; or
(iv) to the extent permitted pursuant to Section 6.09(b), shallObligations under Permitted Junior Debt;
(b) to make (i) an Investment in any one or more businesses, provided that such Investment in any business is in the form of the acquisition of Equity Interests and results in the Borrower or another of its Subsidiaries, as the case may be, owning an amount of the Equity Interests of such business such that it constitutes a Subsidiary, (ii) capital expenditures or (iii) acquisitions of other assets, in each of the preceding clauses (i), (ii) and (iii), engaged in or used or useful in, as applicable, a business permitted under Section 6.08,
(c) to make an investment in (i) any one or more businesses, provided that such Investment in any business is in the form of the acquisition of Equity Interests and results in the Borrower or another of its Subsidiaries, as the case may be, owning an amount of the Equity Interests of such business such that it constitutes a Subsidiary, (ii) properties or (iii) acquisitions of other assets that, in each of the preceding clauses (i), (ii) and (iii), replace the businesses, properties and/or assets that are the subject of such Asset Sale; or
(d) any combination of clauses (a), (b) and (c) above; provided that, in the case of clauses (b) and (c) above, a binding commitment shall be treated as a permitted application of the Asset Sale Proceeds from the date of such commitment so long as the Borrower or such Subsidiary enters into such commitment with the good faith expectation that such Asset Sale 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 Asset Sale Proceeds are applied in connection therewith, the Borrower or such Subsidiary enters into another Acceptable Commitment (a “Second Commitment”) within 180 days of such cancellation or termination; provided further that if any Second Commitment is later cancelled or terminated for any reason before such Asset Sale Proceeds are applied, then such Asset Sale Proceeds shall constitute Excess Proceeds. Any Asset Sale Proceeds from the Asset Sale that are not invested or applied as provided and within the time period set forth in the first sentence of the preceding paragraph will be deemed to constitute “Excess Proceeds.” When the aggregate amount of Excess Proceeds exceeds $100.0 million, all such Excess Proceeds shall be deemed to be cash for the purposes of this provision or for purposes of the second paragraph of this Section 4.10; and“Prepayment Excess Proceeds.”
Appears in 2 contracts
Samples: Revolving Credit Agreement (Nuance Communications, Inc.), Revolving Credit Agreement (Nuance Communications, Inc.)
Asset Sales. (a) The Company Issuer shall not, and shall not permit any of its Restricted Subsidiaries to, consummate cause or make an Asset Sale unless Sale, unless:
(i) the Company Issuer or the applicable any of its Restricted SubsidiarySubsidiaries, as the case may be, receives consideration at the time of such Asset Sale at least equal to the fair market value of the assets sold or otherwise disposed of Fair Market Value (as determined in good faith by the Company)Issuer) 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 Issuer or the such Restricted Subsidiary, as the case may be, from such Asset Sale shall be is in the form of cash or Cash EquivalentsEquivalents or Replacement Assets; provided provided, however that the amount of:
(a1) any liabilities (as shown on the CompanyIssuer’s or such Restricted Subsidiary’s most recent balance sheet or in the footnotes notes thereto, or if incurred or accrued subsequent to the date of such balance sheet, such liabilities that would have been shown on the Company’s or such Restricted Subsidiary’s balance or the footnotes thereto if such incurrence or accrual had taken place on the date of such balance sheet, as determined by the Company) of the Company Issuer or any such Restricted Subsidiary (other than liabilities that are by their terms subordinated to the Notes) that are assumed by the transferee of any such assets; assets or Equity Interests pursuant to an agreement that releases or indemnifies the Issuer or such Restricted Subsidiary, as the case may be, from further liability;
(b2) any securities, notes Notes or other obligations or other securities or assets received by the Company Issuer or any such Restricted Subsidiary from such transferee that are converted by the Company Issuer or such Restricted Subsidiary into cash within 180 days of the receipt thereof (to the extent of the cash received); and and
(c3) any Designated Non-cash Consideration received by the Company Issuer or any of its Restricted Subsidiaries in such Asset Sale having an aggregate fair market valueFair Market Value, taken together with all other Designated Non-cash Consideration received pursuant to this clause (c3) after December 14, 2010 that is at that time outstanding, not to exceed the greater of (x) $150 100.0 million and 5(y) 2.25% of Total Assets Assets, at the time of the receipt of such Designated Non-cash Consideration (with the fair market value 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 ; shall each of (a), (b) and (c) above, be deemed to be cash Cash Equivalents for the purposes of this provision clause (ii).
(b) Within 365 days after the Issuer’s or for purposes any Restricted Subsidiary’s receipt of the second paragraph Net Cash Proceeds of any Asset Sale, the Issuer or such Restricted Subsidiary may apply the Net Cash Proceeds from such Asset Sale, at its option:
(i) to permanently reduce Obligations under any Secured Indebtedness and, in the case of revolving obligations thereunder, to correspondingly reduce commitments with respect thereto;
(ii) to permanently reduce Obligations under (x) other Pari Passu Indebtedness of the Issuer or the Guarantors (provided that if the Issuer or any Guarantor shall so reduce such Obligations under such other Pari Passu Indebtedness, the Issuer shall equally and ratably reduce Obligations under the Notes if the Notes are then redeemable at par or, if the Notes are not redeemable at par, 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, the pro rata principal amount of Notes that would otherwise be redeemed) or (y) Indebtedness of a Restricted Subsidiary that is not a Guarantor, in each case, other than Indebtedness owed to the Issuer or an Affiliate of the Issuer (provided that in the case of any reduction of any revolving obligations pursuant to this clause (ii), the Issuer or such Restricted Subsidiary shall effect a corresponding reduction of commitments with respect thereto);
(iii) to make an Investment in any one or more businesses (provided that if such Investment is in the form of the acquisition of Capital Stock of a Person, such acquisition results in such Person becoming a Restricted Subsidiary of the Issuer), assets, or property or capital expenditures, in each case that either replaces the properties or assets that are the subject of such Asset Sale or that are used or useful in a Similar Business; or
(iv) any combination of the foregoing; provided that the Issuer and its Restricted Subsidiaries shall be deemed to have complied with the provisions described in clause (iii) of this Section 4.103.7(b) if and to the extent that, within 365 days after the Asset Sale that generated the Net Cash Proceeds, the Issuer has entered into and not abandoned or rejected a binding agreement to acquire the assets or Capital Stock of a Similar Business, make an Investment in Replacement Assets or make a capital expenditure in compliance with the provision described in clause (iii) of this Section 3.7(b), and that acquisition, purchase or capital expenditure is thereafter completed within 180 days after the end of such 365-day period.
(c) Pending the final application of any such Net Cash Proceeds, the Issuer or such Restricted Subsidiary of the Issuer may temporarily reduce Indebtedness under a revolving credit facility, if any, or otherwise invest such Net Cash Proceeds in Cash Equivalents. Any Net Cash Proceeds from any Asset Sale that are not applied as provided and within the time period set forth in Section 3.7(b) will be deemed to constitute “Excess Proceeds.” When the aggregate amount of Excess Proceeds exceeds $30.0 million, the Issuer shall make an offer (an “Asset Sale Offer”) to all Holders of Notes and to all holders of other Pari Passu Indebtedness containing provisions similar to those set forth in this Indenture with respect to Asset Sales, to purchase the maximum principal amount of such Notes and Pari Passu Indebtedness, as appropriate, on a pro rata basis, that may be purchased out of the Excess Proceeds at an offer price in cash in an amount equal to 100% of the principal amount thereof (or in the event such other Indebtedness was issued with original issue discount, 100% of the accreted value thereof), plus accrued and unpaid interest (or such lesser price, if any, as may be provided by the terms of such other Indebtedness), to the date fixed for the closing of such offer, in accordance with the procedures set forth in this Indenture. The Issuer will commence an Asset Sale Offer with respect to Excess Proceeds within ten Business Days after the date that Excess Proceeds exceed $30.0 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 Indebtedness tendered pursuant to an Asset Sale Offer is less than the Excess Proceeds, the Issuer may use any remaining Excess Proceeds for any purpose not otherwise prohibited by this Indenture. If the aggregate principal amount of Notes and Pari Passu Indebtedness, as appropriate, surrendered by holders thereof exceeds the amount of Excess Proceeds, the Trustee shall select the Notes and the Issuer or its agent shall select such other Indebtedness to be purchased in the manner described below. Upon completion of any such Asset Sale Offer, the amount of Excess Proceeds shall be reset at zero.
(d) The Issuer shall comply with the requirements of Rule 14e-1 under the Exchange Act and any other securities laws and regulations to the extent such laws or regulations are applicable in connection with the purchase of the Notes pursuant to an Asset Sale Offer. To the extent that the Asset Sale provisions of any securities laws or regulations conflict with the provisions of this Indenture, the Issuer shall comply with the applicable securities laws and regulations and shall not be deemed to have breached its obligations under the Asset Sale provisions of this Indenture by virtue of such compliance.
(e) If more Notes are tendered pursuant to an Asset Sale Offer than the Issuer is required to purchase, selection of such Notes for purchase will be made 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 listed, on a pro rata basis (and in such manner as complies with applicable legal requirements); andprovided, that the selection of Notes for purchase shall not result Holder with a principal amount of Notes less than the minimum denomination to the extent practicable. A new Note in principal amount equal to the unpurchased portion of any Note purchased in part will be issued in the name of the Holder thereof upon cancellation of the original Note. On and after the purchase date, unless the Issuer defaults in payment of the purchase price, interest shall cease to accrue on Notes or portions thereof purchased.
Appears in 2 contracts
Samples: Indenture (CommScope Holding Company, Inc.), Indenture (CommScope Holding Company, Inc.)
Asset Sales. The Company (a) Holdings shall not, and shall not permit any of its Restricted Subsidiaries to, consummate cause, make or suffer to exist an Asset Sale unless Sale, unless:
(i1) the Company Holdings or the applicable 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 (as determined in good faith by the Company); (ii) a Permitted Asset Swap, at least 75% of the consideration therefor received by the Company Holdings or the such Restricted Subsidiary, as the case may be, from such Asset Sale shall be is in the form of cash or Cash Equivalents; provided that the amount of:
(a) any liabilities (as shown on the Company’s Holdings’ or such Restricted Subsidiary’s most recent balance sheet or in the footnotes thereto, or if incurred or accrued subsequent to the date ) of such balance sheet, such liabilities that would have been shown on the Company’s Holdings or such Restricted Subsidiary’s balance or the footnotes thereto if such incurrence or accrual had taken place on the date of such balance sheet, as determined by the Company) of the Company or any such Restricted Subsidiary (other than liabilities that are by their terms subordinated to the Notes) , that are assumed by the transferee of any such assets; assets and for which Holdings and all of its Restricted Subsidiaries have been validly released by all creditors in writing,
(b) any securities, notes or other obligations securities received by the Company Holdings or any such Restricted Subsidiary from such transferee that are converted by the Company Holdings or such Restricted Subsidiary into cash within 180 days of the receipt thereof (to the extent of the cash received); and ) within 120 days following the closing of such Asset Sale, and
(c) any Designated Non-cash Consideration received by the Company Holdings or any of its such Restricted Subsidiaries 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) after December 14, 2010 that is at that time outstanding, not to exceed the greater of $150 million and 52.5% of Total Assets at the time of the receipt of such Designated Non-cash Consideration (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 for purposes of this provision and for no other purpose.
(b) Within 365 days after the receipt of any Net Proceeds of any Asset Sale, Holdings or such Restricted Subsidiary, at its option, may apply the Net Proceeds from such Asset Sale,
(1) to permanently reduce:
(a) Obligations under the Senior Credit Facilities; and to correspondingly reduce commitments with respect thereto;
(b) Obligations under Senior Indebtedness that is secured by a Lien, which Lien is permitted by this Indenture, and to correspondingly reduce commitments with respect thereto;
(c) Obligations under other Senior Indebtedness (and to correspondingly reduce commitments with respect thereto), shallprovided that the Issuer shall equally and ratably reduce Obligations under the Notes as provided under Section 3.07 hereof or reduce such Obligations 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 under Section 4.10(c) hereof) to all Holders to purchase their Notes at 100% of the principal amount thereof, plus the amount of accrued but unpaid interest, if any, on the amount of Notes that would otherwise be prepaid; or
(d) Indebtedness of a Restricted Subsidiary that is not a Guarantor, other than Indebtedness owed to Holdings or another Restricted Subsidiary;
(2) to make (a) an Investment in any one or more businesses, provided that such Investment in any business is in the form of the acquisition of Capital Stock and results in Holdings or another of its Restricted Subsidiaries, as the case may be, owning an amount of the Capital Stock of such business such that it constitutes a Restricted Subsidiary, (b) 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 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 Holdings or another of its Restricted Subsidiaries, as the case may be, owning an amount of the Capital Stock of such business such that it constitutes a Restricted Subsidiary, (b) properties or (c) acquisitions of other assets that, in each of (a), (b) and (c), replace the businesses, properties and/or assets that are the subject of such Asset Sale; provided that, in the case of clauses (2) and (3) above, a binding commitment shall be treated as a permitted application of the Net Proceeds from the date of such commitment so long as Holdings, or such other Restricted Subsidiary enters into such commitment with the good faith expectation that such Net Proceeds will be applied to satisfy such commitment within 180 days of such commitment (an “Acceptable Commitment”) and, in the event any Acceptable Commitment is later cancelled or terminated for any reason before the Net Proceeds are applied in connection therewith, Holdings or such Restricted Subsidiary enters into another Acceptable Commitment (a “Second Commitment”) within 180 days of such cancellation or termination; provided further that if any Second Commitment is later cancelled or terminated for any reason before such Net Proceeds are applied, then such Net Proceeds shall constitute Excess Proceeds.
(c) Any Net Proceeds from the Asset Sale that are not invested or applied as provided and within the time period set forth in the first sentence of the preceding paragraph will be deemed to constitute “Excess Proceeds.” When the aggregate amount of Excess Proceeds exceeds $35.0 million, the Issuer shall make an offer to all Holders of the Notes and, if required by the terms of any Indebtedness that is pari passu with the Notes (“Pari Passu Indebtedness”), to the holders of such Pari Passu Indebtedness (an “Asset Sale Offer”), to purchase the maximum aggregate principal amount of the Notes and such Pari Passu Indebtedness that is at least $1.00 or an integral multiple of $1.00 thereafter, that may be purchased out of the Excess Proceeds at an offer price in cash in an amount equal to 100% of the principal amount thereof, plus accrued and unpaid interest, if any, to the date fixed for the purposes closing of such offer, in accordance with the procedures set forth in this Indenture. The Issuer will commence an Asset Sale Offer with respect to Excess Proceeds within ten Business Days after the date that Excess Proceeds exceed $35.0 million by mailing the notice required pursuant to the terms of this provision Indenture, with a copy to the Trustee. To the extent that the aggregate amount of Notes and such Pari Passu Indebtedness tendered pursuant to an Asset Sale Offer is less than the Excess Proceeds, the Issuer may use any remaining Excess Proceeds for general corporate purposes, subject to other covenants contained in this Indenture. If the aggregate principal amount of Notes or for purposes the Pari Passu Indebtedness surrendered by such holders thereof exceeds the amount of Excess Proceeds, the Trustee shall select the Notes and such Pari Passu Indebtedness to be purchased on a pro rata basis based on the accreted value or principal amount of the second paragraph Notes or such Pari Passu Indebtedness tendered. Upon completion of any such Asset Sale Offer, the amount of Excess Proceeds shall be reset to zero.
(d) Pending the final application of any Net Proceeds pursuant to this Section 4.10; and, the holder of such Net Proceeds may apply such Net Proceeds temporarily to reduce Indebtedness outstanding under a revolving credit facility or otherwise invest such Net Proceeds in any manner not prohibited by this Indenture.
(e) The Issuer will comply with the requirements of Rule 14e-1 under the Exchange Act and any other securities laws and regulations thereunder to the extent such laws or regulations are applicable in connection with the repurchase of the Notes pursuant to an Asset Sale Offer. To the extent that the provisions of any securities laws or regulations conflict with the provisions of this Indenture, the Issuer will comply with the applicable securities laws and regulations and shall not be deemed to have breached its obligations described in this Indenture by virtue thereof.
Appears in 2 contracts
Samples: Indenture (Travelport LTD), Supplemental Indenture (Travelport LTD)
Asset Sales. (a) The Company shall not, and shall not permit any of its Restricted Subsidiaries to, consummate an Asset Sale unless Sale, unless:
(i) the Company or the applicable 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 (such fair market value to be determined on the date of contractually agreeing to such Asset Sale) of the assets sold or otherwise disposed of (as determined in good faith by the Company)of; and
(ii) except in the case of a Permitted Asset Swap, at least 75% of the consideration therefor received by the Company or the such Restricted Subsidiary, as the case may be, from such Asset Sale shall be is in the form of cash or 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, or if incurred or accrued subsequent to the date of such balance sheet, such liabilities that would have been shown reflected on the Company’s or such Restricted Subsidiary’s balance sheet or in the footnotes thereto if such incurrence or accrual had taken place on or prior to the date of such balance sheet, as determined in good faith by the Company) of the Company or any such Restricted Subsidiary (Subsidiary, other than liabilities that are by their terms subordinated to the Notes) Notes or the Guarantees, that are assumed by the transferee of any such assets; assets or that are otherwise cancelled or terminated in connection with the transaction with such transferee 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 any such Restricted Subsidiary from such transferee that are converted by the Company or such Restricted Subsidiary into cash within 180 days of the receipt thereof Cash Equivalents, or by their terms are required to be satisfied for Cash Equivalents (to the extent of the cash Cash Equivalents received); and ) within 365 days following the closing of such Asset Sale, and
(c) any Designated Non-cash Consideration received by the Company or any of its Restricted Subsidiaries 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) after December 14, 2010 that is at that time outstanding, not to exceed the greater of (x) $150 150.0 million and 5(y) 2.0% of Consolidated Total Assets at the time of the receipt of such Designated Non-cash Consideration (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 4.06(a) and for no other purpose.
(b) Within 365 days after the receipt of any Net Proceeds of any Asset Sale, the Company or such Restricted Subsidiary, at the Company’s option, may apply the Net Proceeds from such Asset Sale,
(i) to the extent such Net Proceeds represent proceeds from an Asset Sale of PP&E Collateral, (a) repay, prepay, defease, redeem, purchase or otherwise retire PP&E First Lien Obligations (and if the Indebtedness repaid is revolving credit indebtedness, to correspondingly reduce commitments with respect thereto) or (b) make an investment in (i) any one or more businesses primarily engaged in a Similar Business; provided that such investment in any business is in the form of (x) a merger with the Company or any Restricted Subsidiary, (y) the acquisition of Capital Stock that results in the Company or any Restricted Subsidiary owning an amount of the Capital Stock of such business such that it constitutes a Restricted Subsidiary or (z) the acquisition of Capital Stock or other assets of such business, (ii) properties, (iii) capital expenditures and (iv) the acquisition of Capital Stock or other assets, that in each of (i), shall(ii), (iii) or (iv), are used or useful in a Similar Business or replace the businesses, properties and assets that are subject of such Asset Sale; or
(ii) to the extent that such Net Proceeds do not represent proceeds from an Asset Sale of PP&E Collateral, (a) repay, prepay, defease, redeem, purchase otherwise retire Borrowing Base Priority Obligations or the Indebtedness of a Restricted Subsidiary that is not a Guarantor or (b) repay, prepay, defease, redeem, purchase or otherwise retire Indebtedness of the Company or any Guarantor that is not subordinated in right of payment to the Notes or the Guarantees, in each case owing to a person other than the Company or any Affiliate of the Company; provided that, with respect to this clause (b), the Company shall equally and ratably prepay, repay, redeem, reduce or purchase (or offer to prepay, repay, redeem, reduce or purchase, as applicable) Obligations under the Notes (and may elect to reduce other PP&E First Lien Obligations or Borrowing Base Priority Obligations) on a pro rata basis; provided further that all reductions of Obligations under the Notes shall be made as provided under Section 3.01 through open-market purchases (to the extent such purchases are at or above 100% of the principal amount thereof plus accrued and unpaid interest and Additional Amounts to, but not including, the date of redemption) or by an offer (in accordance with the procedures set forth below for an Asset Sale Offer) to all Holders to purchase their Notes at 100% of the principal amount thereof, plus the amount of accrued but unpaid interest and Additional Amounts, if any, to, but not including, the date of redemption, on the amount of Notes that would otherwise be prepaid; or
(iii) to the extent that such Net Proceeds do not represent proceeds from an Asset Sale of PP&E Collateral, 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, (b) properties or (c) other assets that, in the case of each of (a), (b) and (c), replace the businesses, properties and/or other assets that are the subject of such Asset Sale; or
(iv) any combination of the foregoing; provided that, in the case of clauses (i)(b) and (iii) above, a binding commitment shall be treated as a permitted application of the Net Proceeds from the date of such commitment so long as the Company or such other Restricted Subsidiary enters into such commitment with the good faith expectation that such Net Proceeds will be applied to satisfy such commitment within 180 days of such commitment (an “Acceptable Commitment”) and, in the event any Acceptable Commitment is later cancelled or terminated for any reason before such Net Proceeds are applied, then such Net Proceeds shall constitute Excess Proceeds (as defined below). Notwithstanding the foregoing, (i) to the extent that any or all of the Net Proceeds of any Asset Sale by a Foreign Subsidiary (a “Foreign Disposition”) are prohibited or delayed by applicable local law from being repatriated to the United States, the amount equal to the portion of such Net Proceeds so affected will not be required to be applied in compliance with this covenant, and such amounts may be retained by the applicable Foreign Subsidiary so long, but only so long, as the applicable local law will not permit repatriation to the United States (the Company hereby agreeing to use reasonable efforts to cause the applicable Foreign Subsidiary to take all actions reasonably required by the applicable local law to permit such repatriation), and if such repatriation of any of such affected Net Proceeds is permitted under the applicable local law, an amount equal to such Net Proceeds permitted to be repatriated will be applied (whether or not repatriation actually occurs) in compliance with this covenant (net of any additional taxes that are or would be payable or reserved against as a result thereof) and (ii) to the extent that the Company has determined in good faith that repatriation of any or all of the Net Proceeds of any Foreign Disposition could have a material adverse tax consequence (which for the avoidance of doubt, includes, but is not limited to, any purchase whereby doing so the Issuer, any Restricted Subsidiary or any of their Affiliates and/or equity partners would incur a material tax liability, including a material tax dividend, material deemed dividend pursuant to Code Section 956 or material withholding tax), the amount equal to the Net Proceeds so affected will not be required to be applied in compliance with this covenant. For the avoidance of doubt, to the extent this covenant relates to Net Proceeds realized by any Excluded Subsidiary, this covenant shall be an obligation of the Company (and not such Excluded Subsidiary) to make a payment or an offer to purchase, in each case, measured by the amount of such Net Proceeds and nothing in Section 4.06 shall be construed as an obligation of any Excluded Subsidiary to make a payment or repatriate any Net Proceeds (or to effect an offer to purchase) or an obligation of the Company or any Guarantor to cause an Excluded Subsidiary to make a payment or repatriate Net Proceeds (or effect an offer to purchase). Any Net Proceeds from any Asset Sale that are not invested or applied as provided and within the time period set forth in this Section 4.06(b) (it being understood that any portion of such Net Proceeds used to make an offer to purchase Notes, as described in clause (i) of this Section 4.06(b), shall be deemed to have been invested whether or not such offer is accepted) will be deemed to constitute “Excess Proceeds.” When the aggregate amount of Excess Proceeds exceeds $60.0 million, the Issuers shall make an offer to all Holders of Notes (an “Asset Sale Offer”), to purchase the maximum aggregate principal amount of the Notes that is at least €100,000 and an integral multiple of €1,000 in excess thereof that may be purchased out of the Excess Proceeds at an offer price in cash in an amount equal to 100% of the principal amount thereof, plus accrued and unpaid interest and Additional Amounts, if any, to, but not including, the date fixed for the purposes closing of such offer, in accordance with the procedures set forth in this Indenture. The Issuers will commence an Asset Sale Offer with respect to Excess Proceeds within ten (10) Business Days after the date that Excess Proceeds exceed $60.0 million by sending the notice required pursuant to the terms of this provision Indenture, with a copy to the Trustee and Paying Agent, or otherwise in accordance with the procedures of Euroclear and Clearstream or the relevant clearing system. 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 purposes general corporate purposes, subject to compliance with other covenants contained in this Indenture. If the aggregate principal amount of Notes surrendered in an Asset Sale Offer exceeds the amount of Excess Proceeds, the Issuers or the Registrar shall select the Notes to be purchased in the manner described in Section 3.04. Upon completion of any such Asset Sale Offer, the amount of Excess Proceeds shall be reset to zero (regardless of whether there are any remaining Excess Proceeds upon such completion). Pending the final application of any Net Proceeds pursuant to this Section 4.06, 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. The Issuers shall comply with the requirements of Rule 14e-1 under the Exchange Act and any other securities laws and regulations thereunder to the extent such laws or regulations are applicable in connection with the repurchase of the second paragraph Notes pursuant to an Asset Sale Offer. To the extent that the provisions of any securities laws or regulations conflict with the provisions of this Section 4.10; andIndenture, the Issuers shall comply with the applicable securities laws and regulations and shall not be deemed to have breached their obligations described in this Indenture by virtue thereof.
Appears in 2 contracts
Asset Sales. The Company shall Issuer will not, and shall will not permit any of its Restricted Subsidiaries to, consummate an Asset Sale unless unless:
(i1) 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 Issuer (as determined in good faith by the Company); (ii) at least 75% of the consideration received by the Company or the Restricted Subsidiary, as the case may be, from such ) receives consideration at the time of the Asset Sale shall be 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 Issuer or such Restricted Subsidiary is in the form of cash cash, Cash Equivalents or Cash Equivalents; provided that Marketable Securities. For purposes of this provision, each of the amount offollowing shall be deemed to be cash:
(aA) any liabilities (as shown on the Company’s or such Restricted Subsidiary’s most recent balance sheet or in the footnotes thereto, or if incurred or accrued subsequent to the date of such balance sheet, such liabilities that would have been shown on the Company’s or such Restricted Subsidiary’s balance or the footnotes thereto if such incurrence or accrual had taken place on the date of such balance sheet, as determined by the Company) of the Company Issuer or any such Restricted Subsidiary (other than contingent liabilities and liabilities that are by their terms subordinated to the NotesNotes or any Note Guarantee) that are assumed by the transferee of any such assets; assets and, as a result of which, the Issuer or such Restricted Subsidiary is released from further liability;
(bB) any securities, notes or notes, other obligations or assets received by the Company Issuer or any such Restricted Subsidiary from such transferee that are converted by the Company Issuer or such Restricted Subsidiary into cash or Cash Equivalents within 180 days of the receipt thereof (thereof, to the extent of the cash received); and or Cash Equivalents received in that conversion;
(cC) any Designated Non-cash Consideration received by the Company Issuer or any of its Restricted Subsidiaries in such Asset Sale having an Sale; provided that the aggregate fair market valueFair Market Value of such Designated Non-cash Consideration, taken together with the Fair Market Value at the time of receipt of all other Designated Non-cash Consideration received pursuant to this clause (cC) after December 14, 2010 that less the amount of Net Proceeds previously realized in cash from prior Designated Non-cash Consideration is at that time outstanding, not to exceed less than the greater of $150 million and 5(x) 7.5% of Total Tangible Assets at the time of the receipt of such Designated Non-cash Consideration (with the fair market value Fair Market Value of each item of Designated Non-cash Consideration being measured at the time received and without giving effect to subsequent changes in value) and (y) $750 million; and
(D) any Capital Stock or assets of the kind referred to in clause (2) or (4) of the next paragraph of this Section 4.08. Within 450 days after the receipt of any Net Proceeds from an Asset Sale, the Issuer (or the applicable Restricted Subsidiary, as the case may be) may:
(a) apply such Net Proceeds, at its option:
(1) to repay (w) Indebtedness and other Obligations under a Credit Facility, (x) any Indebtedness that is not Other Second-Lien Obligations that was secured by the assets sold in such Asset Sale, (y) other pari passu Indebtedness (provided that the Issuer shall also equally and ratably reduce Indebtedness under the Notes by making an offer, in accordance with the procedures set forth below for an Asset Sale, to all Holders to purchase at a purchase price equal to 100% of the principal amount thereof, plus accrued and unpaid interest on the pro rata principal amount of Notes), shallor (z) Indebtedness of a Restricted Subsidiary that is not a Guarantor, in each case other than Indebtedness owed to the Issuer or an Affiliate of the Issuer;
(2) to acquire all or substantially all of the assets of, or any Capital Stock of, another Permitted Business; provided that if such Net Cash Proceeds are received in respect of Collateral, such assets or Capital Stock acquired shall be pledged as Collateral if they secure First Priority Lien Obligations;
(3) to make a capital expenditure; provided that if such Net Cash Proceeds are received in respect of Collateral, such assets subject to such capital expenditure shall be pledged as Collateral if they secure First Priority Lien Obligations; or
(4) to acquire other assets that are not classified as current assets under GAAP and that are used or useful in a Permitted Business; provided that if such Net Cash Proceeds are received in respect of Collateral, such assets acquired shall be pledged as Collateral if they secure First Priority Lien Obligations; or
(b) enter into a binding commitment to apply the Net Proceeds pursuant to clauses (a) (2), (b3) and or (c4) above, provided that such binding commitment shall be deemed to be cash for treated as a permitted application of the purposes Net Proceeds from the date of such commitment until the earlier of (x) the date on which such acquisition or expenditure is consummated, and (y) the 180th day following the expiration of the aforementioned 450-day period. Pending the final application of any Net Proceeds, the Issuer may temporarily reduce revolving credit borrowings or otherwise invest the Net Proceeds in any manner that is not prohibited by this provision Indenture. Any Net Proceeds from Asset Sales that are not applied or for purposes of invested as provided in the second paragraph of this Section 4.104.08 will constitute “Excess Proceeds.” When the aggregate amount of Excess Proceeds exceeds $750 million, within ten (10) Business Days thereof, the Issuer will make an offer to all holders of Notes (an “Asset Sale Offer”) and all holders of other Indebtedness that is pari passu with the Notes containing provisions similar to those set forth in this Indenture with respect to offers to purchase or redeem with the proceeds of sales of assets to purchase the maximum principal amount of Notes and such other pari passu Indebtedness that may be purchased out of the Excess Proceeds. The offer price in any Asset Sale Offer will be equal to 100% of the principal amount plus accrued and unpaid interest to, but excluding, the date of purchase and will be payable in cash. If any Excess Proceeds remain after consummation of an Asset Sale Offer, the Issuer may use those Excess Proceeds for any purpose not otherwise prohibited by this Indenture. If the aggregate principal amount of Notes and other pari passu Indebtedness tendered into such Asset Sale Offer exceeds the amount of Excess Proceeds, the Trustee will select the Notes and the Issuer will select or arrange for the selection of such other pari passu Indebtedness to be purchased on a pro rata basis. Upon completion of each Asset Sale Offer, the amount of Excess Proceeds will be reset at zero. The Issuer will comply with the requirements of Rule 14e-1 under the Exchange Act and any other securities laws and regulations thereunder to the extent those laws and regulations are applicable in connection with each repurchase of Notes pursuant to an Asset Sale Offer. To the extent that the provisions of any securities laws or regulations conflict with the Asset Sale provisions of this Indenture, the Issuer will comply with the applicable securities laws and regulations and will not be deemed to have breached its obligations under the Asset Sale provisions of this Indenture by virtue of such compliance. Not later than the date upon which written notice of an Asset Sale Offer is delivered to the Trustee as provided above, the Issuer shall deliver to the Trustee an Officers’ Certificate as to (i) the amount of the Excess Proceeds, (ii) the allocation of the Net Proceeds from the Asset Sales pursuant to which such Asset Sale Offer is being made and (iii) the compliance of such allocation with the provisions of Section 4.08. Upon the expiration of the period for which the Asset Sale Offer remains open (the “Offer Period”), the Issuer shall deliver to the Trustee for cancellation the Notes or portions thereof that have been properly tendered to and are to be accepted by the Issuer. The Trustee (or a Paying Agent, if not the Trustee) shall, on the date of purchase, mail or deliver payment to each tendering Holder in the amount of the purchase price. In the event that the Excess Proceeds delivered by the Issuer to the Trustee is greater than the purchase price of the Notes tendered, the Trustee shall deliver the excess to the Issuer immediately after the expiration of the Offer Period for application in accordance with this Section 4.08. Holders electing to have a Note purchased shall be required to surrender the Note, with the form entitled “Option of Holder to Elect Purchase” attached to the Note duly completed, to the Issuer at the address specified in the notice at least three Business Days prior to the purchase date. Holders shall be entitled to withdraw their election if the Trustee or the Issuer receives not later than one Business Day prior to the purchase date, a telegram, telex, facsimile transmission or letter setting forth the name of the Holder, the principal amount of the Note which was delivered by the Holder for purchase and a statement that such Holder is withdrawing his election to have such Note purchased. If at the end of the Offer Period more Notes are tendered pursuant to an Asset Sale Offer than the Issuer is required to purchase, selection of such Notes for purchase shall be made by the Trustee in compliance with the requirements of the principal national securities exchange, if any, on which such Notes are listed, or if such Notes are not so listed, on a pro rata basis, by lot or by such other method as the Trustee shall deem fair and appropriate (and in such manner as complies with applicable legal requirements); andprovided that no Notes of less than a minimum of $2,000 or less shall be purchased in part or remain outstanding in part. Notices of an Asset Sale Offer shall be mailed by first class mail, postage prepaid, at least 30 but not more than 60 days before the purchase date to each Holder of Notes at such Holder’s registered address. If any Note is to be purchased in part only, any notice of purchase that relates to such Note shall state the portion of the principal amount thereof that is to be purchased.
Appears in 2 contracts
Samples: Indenture (Alpha Natural Resources, Inc.), Indenture (Alpha Natural Resources, Inc.)
Asset Sales. The Company (a) Holdings shall not, and shall not permit any Restricted Subsidiary to, cause or make an Asset Sale, unless (x) Holdings or any of its Restricted Subsidiaries to, consummate an Asset Sale unless (i) the Company or the applicable Restricted SubsidiarySubsidiaries, as the case may be, receives consideration at the time of such Asset Sale at least equal to the fair market value Fair Market Value (if the consideration for such Asset Sale is less than or equal to $25.0 million, as determined in good faith by Holdings or if the consideration for such Asset Sale exceeds $25.0 million, as determined by an Independent Financial Advisor) of the assets sold or otherwise disposed of and (as determined in good faith by the Company); (iiy) at least 75% of the consideration therefor received by the Company Holdings or the such Restricted Subsidiary, as the case may be, from such Asset Sale shall be is in the form of cash or Cash Equivalents; provided that the amount of:
(ai) any liabilities (as shown on the Company’s Holdings’ or such a Restricted Subsidiary’s most recent balance sheet or in the footnotes notes thereto, or if incurred or accrued subsequent to the date of such balance sheet, such liabilities that would have been shown on the Company’s or such Restricted Subsidiary’s balance or the footnotes thereto if such incurrence or accrual had taken place on the date of such balance sheet, as determined by the Company) of the Company Holdings or any such Restricted Subsidiary (other than liabilities that are by their terms subordinated to the NotesNotes or any Subsidiary Guarantee) that are assumed by the transferee of any such assets; assets or that are otherwise cancelled or terminated in connection with the transaction with such transferee,
(bii) any securities, notes or other obligations or other securities or assets received by the Company Holdings or any such Restricted Subsidiary from such transferee that are converted by the Company Holdings or such Restricted Subsidiary into cash within 180 days of the receipt thereof (to the extent of the cash received); ,
(iii) with respect to any Asset Sale of Oil and Gas Properties by Holdings or any Restricted Subsidiary, the costs and expenses related to the exploration, development, completion or production of such Oil and Gas Properties and activities related thereto agreed to be assumed by the transferee (cor an Affiliate thereof),
(iv) [reserved],
(v) [reserved], and
(vi) any Designated Non-cash Consideration received by the Company Holdings or any of its Restricted Subsidiaries Subsidiary in such Asset Sale having an aggregate fair market valueFair Market Value (as determined in good faith by Holdings), taken together with all other Designated Non-cash Consideration received pursuant to this clause (cvi) after December 14, 2010 that is at that time outstanding, not to exceed the greater of $150 25.0 million and 5% of Total Assets at the time of the receipt of such Designated Non-cash Consideration (with the fair market value 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 of (a), (b) and (c) above, shall be deemed to be cash Cash Equivalents for the purposes of this provision Section 4.06.
(b) Within 365 days of an Issuer’s or for purposes any Restricted Subsidiary’s receipt of the second paragraph Net Proceeds of any Asset Sale, the Issuers or such Restricted Subsidiary may apply the Net Proceeds from such Asset Sale, at its option:
(i) to repay (v) Indebtedness constituting First-Priority Lien Obligations (and, if the Indebtedness repaid is revolving credit Indebtedness, to correspondingly reduce commitments with respect thereto), (w) Indebtedness of a Restricted Subsidiary that is not a Subsidiary Guarantor (provided that the assets disposed of in such Asset Sale were not assets of an Issuer or a Subsidiary Guarantor), (x) Obligations under the Notes, (D) other Pari Passu Indebtedness so long as the Net Proceeds from such Asset Sale are with respect to (A) assets that secure such other Pari Passu Indebtedness on a senior basis to the Notes Obligations or (B) assets not constituting Collateral) or (z) Other Second-Lien Obligations (provided that if an Issuer or any Subsidiary Guarantor shall so reduce Other Second-Lien Obligations under this clause (z) (which for the avoidance of doubt will not constitute Indebtedness under clauses (v), (w), (x) or (y), the Issuers will equally and ratably reduce Obligations under the Notes pursuant to Section 3.01, through open-market purchases (provided that such purchases are at or above 100% of the principal amount thereof or, in the event that the Notes were issued with significant original issue discount, 100% of the accreted value thereof) or by making an offer (in accordance with the procedures set forth below for an Asset Sale Offer) to all holders to purchase at a purchase price equal to 100% of the principal amount thereof (or, in the event that the Notes were issued with significant original issue discount, 100% of the accreted value thereof), plus accrued and unpaid interest and Additional Interest, if any, the pro rata principal amount of Notes, in each case other than Indebtedness owed to Holdings or an Affiliate of Holdings; Table of Contents
(ii) to make an Investment in any one or more businesses (provided that if such Investment is in the form of the acquisition of Capital Stock of a Person, such acquisition results in such Person becoming a Restricted Subsidiary of Holdings), assets, or property or capital expenditures, in each case (x) used or useful in a Similar Business or (y) that replace the properties and assets that are the subject of such Asset Sale; provided that if the assets that were disposed of in the Asset Sale constituted Collateral, the assets acquired must also be Collateral; or
(iii) to invest in Additional Assets; provided that if the assets that were disposed of in the Asset Sale constituted Collateral, the Additional Assets must also be Collateral.
(c) Any Net Proceeds from any Asset Sale that are not applied as provided and within the time period set forth in the first sentence of this Section 4.104.06(b) (it being understood that any portion of such Net Proceeds used to make an offer to purchase Notes, as described in clause (i) of this Section 4.06(b), shall be deemed to have been invested whether or not such offer is accepted) will be deemed to constitute “Excess Proceeds.” When the aggregate amount of Excess Proceeds exceeds $20,000,000, the Issuers shall make an offer to all holders of Notes (and, at the option of the Issuers, to holders of any Other Second-Lien Obligations) (an “Asset Sale Offer”) to purchase the maximum principal amount of Notes (and such Other Second-Lien Obligations), that is at least $2,000 and an integral multiple of $1,000 in excess thereof that may be purchased out of the Excess Proceeds at an offer price in cash in an amount equal to 100% of the principal amount thereof (or, in the event the Notes or such Other Second-Lien Obligations was issued with significant original issue discount, 100% of the accreted value thereof), plus accrued and unpaid interest and Additional Interest, if any (or, in respect of such Other Second-Lien Obligations, such lesser price, if any, as may be provided for by the terms of such Other Second-Lien Obligations), to the date fixed for the closing of such offer, in accordance with the procedures set forth in this Section 4.06. The Issuers will commence an Asset Sale Offer with respect to Excess Proceeds within ten (10) Business Days after the date that Excess Proceeds exceeds $20,000,000 million by mailing the notice required pursuant to the terms of Sections 3.05 and 4.06(f), with a copy to the Trustee. To the extent that the aggregate amount of Notes (and such Other Second Lien Obligations) tendered pursuant to an Asset Sale Offer is less than the Excess Proceeds, the Issuers may use any remaining Excess Proceeds for any purpose that is not prohibited by this Indenture. If the aggregate principal amount of Notes (and such Other Second Lien-Obligations) surrendered by holders thereof exceeds the amount of Excess Proceeds, the Trustee shall select the Notes to be purchased in the manner described in Section 4.06(e). Upon completion of any such Asset Sale Offer, the amount of Excess Proceeds shall be reset at zero.
(d) Pending the final application of any such Net Proceeds pursuant to this Section 4.06, Holdings or such Restricted Subsidiary may temporarily reduce Indebtedness under a revolving credit facility, if any, or otherwise invest such Net Proceeds in any manner not prohibited by this Indenture.
(e) The Issuers will comply with the requirements of Rule 14e-1 under the Exchange Act and any other securities laws and regulations to the extent such laws or regulations are applicable in connection with the repurchase of the Notes pursuant to an Asset Sale Offer. To the extent that the provisions of any securities laws or regulations conflict with the provisions of this Indenture, the Issuers will comply with the applicable securities laws and regulations and shall not be deemed to have breached its obligations described in this Indenture by virtue thereof.
(f) Not later than the date upon which written notice of an Asset Sale Offer is delivered to the Trustee as provided above, Holdings 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 Issuers shall also irrevocably deposit with the Trustee or with a paying agent (or, if an Issuer or a Wholly Owned Restricted Subsidiary is acting as the Paying Agent, segregate and hold in trust) an amount equal to the Excess Proceeds to be invested in Cash Equivalents, as directed in writing by Holdings and to be held for payment in accordance with the provisions of this Section 4.06. Upon the expiration of the period for which the Asset Sale Offer remains open (the “Offer Period”), the Issuers 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 Issuers. The Trustee (or the Table of Contents 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 Issuers to the Trustee are greater than the purchase price of the Notes tendered, the Trustee shall deliver the excess to the Issuers immediately after the expiration of the Offer Period for application in accordance with this Section 4.06.
(g) Holders electing to have a Note purchased shall be required to surrender the Note, with an appropriate form duly completed, to the Issuers 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 an Issuer receives not later than one Business Day prior to the purchase date, a telegram, telex, facsimile transmission or letter setting forth the name of the holder, the principal amount of the Note which was delivered by the holder for purchase and a statement that such holder is withdrawing his election to have such Note purchased. If at the end of the Offer Period more Notes (and such Pari Passu Indebtedness) are tendered pursuant to an Asset Sale Offer than the Issuers are required to purchase, selection of such Notes for purchase shall be made by the Trustee in compliance with the requirements of the principal national securities exchange, if any, on which such Notes are listed, or if such Notes are not so listed, on a pro rata basis, by lot or by such other method as the Trustee shall deem fair and appropriate (and in such manner as complies with applicable legal requirements); andprovided that no Notes of $2,000 or less shall be purchased in part. Selection of such Pari Passu Indebtedness shall be made pursuant to the terms of such Pari Passu Indebtedness.
Appears in 2 contracts
Samples: Exchange Agreement (Talos Energy Inc.), Exchange Agreement (SAILFISH ENERGY HOLDINGS Corp)
Asset Sales. The Company shall not, and shall not permit any of its Restricted Subsidiaries to, consummate an Asset Sale unless (i) 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 (as determined in good faith by the CompanyManagement Committee); , (ii) 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:
of (a) any liabilities (as shown on the Company’s 's or such Restricted Subsidiary’s 's most recent balance sheet or in the footnotes thereto, or if incurred or accrued subsequent to the date of such balance sheet, such liabilities that would have been shown on the Company’s or such Restricted Subsidiary’s balance or the footnotes thereto if such incurrence or accrual had taken place on the date of such balance sheet, as determined by the Company) of the Company or any such Restricted Subsidiary (other than liabilities that are by their terms subordinated to the Notes) that are assumed by the transferee of any such assets; , (b) any securities, notes or other obligations received by the Company or any such Restricted Subsidiary from such transferee that are immediately converted by the Company or such Restricted Subsidiary into cash within 180 days of the receipt thereof (to the extent of the cash received); , and (c) any Designated Non-cash 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 Non-cash Noncash Consideration received pursuant to this clause (c) after December 14, 2010 that is at that time outstanding, not to exceed the greater of $150 million and 510% of Total Assets at the time of the receipt of such Designated Non-cash Noncash Consideration (with the fair market value of each item of Designated Non-cash Noncash Consideration being measured at the time received and without giving effect to subsequent changes in value), shall, in each of (a), (b) and (c) above, shall be deemed to be cash for the purposes of this provision provision, and (iii) upon the consummation of an Asset Sale, the Company shall apply, or for purposes cause such Restricted Subsidiary to apply, the Net Cash Proceeds relating to such Asset Sale within 365 days of receipt thereof to reinvest in Productive Assets or to repay Indebtedness under the Senior Credit Facilities. Pending the final application of any such Net Cash Proceeds, the Company or such Restricted Subsidiary may invest such Net Cash Proceeds in Cash Equivalents. On the 366th day after an Asset Sale or such earlier date, if any, as the Management Committee or such Restricted Subsidiary determines not to apply the Net Cash Proceeds relating to such Asset Sale as set forth in clause (iii) of the second preceding paragraph (each, a "Net Proceeds Offer Trigger Date"), the aggregate amount of Net Cash Proceeds that have not been applied on or before such Net Proceeds Offer Trigger Date as permitted in clause (iii) of the preceding paragraph (each a "Net Proceeds Offer Amount") shall be applied by the Company or such Restricted Subsidiary to make an offer to purchase (the "Net Proceeds Offer") on a date (the ''Net Proceeds Offer Payment Date") not less than 30 nor more than 45 days following the applicable Net Proceeds Offer Trigger Date, from all Holders on a pro rata basis that amount of Notes equal to the Net Proceeds Offer Amount at a price equal to 100% of the principal amount of the Notes to be purchased, plus accrued and unpaid interest and Liquidated Damages thereon, if any, to the date of purchase; provided, however, that if at any time any non cash consideration (including any Designated Noncash Consideration) received by the Company or any Restricted Subsidiary of the Company, as the case may be, in connection with any Asset Sale is converted into or sold or otherwise disposed of for cash (other than interest received with respect to any such non cash consideration), then such conversion or disposition shall be deemed to constitute an Asset Sale hereunder and the Net Cash Proceeds thereof shall be applied in accordance with this Section 4.10. Notwithstanding the foregoing, if a Net Proceeds Offer Amount is less than $10.0 million, the application of the Net Cash Proceeds constituting such Net Proceeds Offer Amount to a Net Proceeds Offer may be deferred until such time as such Net Proceeds Offer Amount plus the aggregate amount of all Net Proceeds Offer Amounts arising subsequent to the Net Proceeds Offer Trigger Date relating to such initial Net Proceeds Offer Amount from all Asset Sales by the Company and its Restricted Subsidiaries aggregates at least $10.0 million, at which time the Company or such Restricted Subsidiary shall apply all Net Cash Proceeds constituting all Net Proceeds Offer Amounts that have been so deferred to make a Net Proceeds Offer (the first date the aggregate of all such deferred Net Proceeds Offer Amounts is equal to $10.0 million or more shall be deemed to be a "Net Proceeds Offer Trigger Date"). Notwithstanding the two immediately preceding paragraphs, the Company and its Restricted Subsidiaries will be permitted to consummate an Asset Sale without complying with such paragraphs to the extent (i) at least 75% of the consideration for such Asset Sale constitutes Productive Assets, cash, Cash Equivalents and/or Marketable Securities and (ii) such Asset Sale is for fair market value (as determined in good faith by the Management Committee of the General Partner); andprovided that any consideration not constituting Productive Assets received by the Company or any of its Restricted Subsidiaries in connection with any Asset Sale permitted to be consummated under this paragraph shall be subject to the provisions of the two preceding paragraphs. Each Net Proceeds Offer will be mailed to the record Holders as shown on the register of Holders within 25 days following the Net Proceeds Offer Trigger Date, with a copy to the Trustee, and shall comply with the procedures set forth in Section 3.09. To the extent that the aggregate amount of Notes tendered pursuant to a Net Proceeds Offer is less than the Net Proceeds Offer Amount, the Company may use any remaining Net Proceeds Offer Amount for general corporate purposes. Upon completion of any such Net Proceeds Offer, the Net Proceeds Offer Amount shall be reset at zero. 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 and regulations are applicable in connection with the repurchase of Notes pursuant to a Net Proceeds Offer. To the extent that the provisions of any securities laws or regulations conflict with the Asset Sale provisions of the Indenture, the Issuers shall comply with the applicable securities laws and regulations and shall not be deemed to have breached its obligations under the Asset Sale provisions of this Indenture by virtue thereof.
Appears in 2 contracts
Samples: Indenture (Anthony Crane Sales & Leasing Lp), Indenture (Anthony Crane Holdings Capital Corp)
Asset Sales. The Company Holdings shall not, and shall not permit any of its Restricted Subsidiaries to, consummate an Asset Sale unless unless:
(i) the Company Holdings or the applicable such Restricted Subsidiary, as the case may be, Subsidiary receives consideration at the time of such Asset Sale at least equal to the fair market value Fair Market Value of the assets or Equity Interests issued or sold or otherwise disposed of (as determined in good faith by the Company); of;
(ii) at least 75% of the consideration therefor received by the Company Holdings or the such Restricted Subsidiary, as the case may be, from such Asset Sale shall be Subsidiary is in the form of cash cash, Cash Equivalents or Cash Equivalents; provided that Replacement Assets or a combination thereof. For purposes of this provision, each of the amount offollowing shall be deemed to be cash:
(aA) any liabilities (liabilities, as shown on the Company’s Holdings’ or such Restricted Subsidiary’s most recent balance sheet or in the footnotes thereto, or if incurred or accrued subsequent to the date of such balance sheet, such liabilities that would have been shown on the Company’s or such Restricted Subsidiary’s balance or the footnotes thereto if such incurrence or accrual had taken place on the date of such balance sheet, as determined by the Company) of the Company Holdings or any such Restricted Subsidiary (other than liabilities contingent liabilities, Indebtedness that are is by their its terms subordinated to the NotesObligations and liabilities to the extent owed to Holdings or any Affiliate of Holdings) that are assumed by the transferee of any such assets; assets or Equity Interests pursuant to a written novation agreement that releases Holdings or such Restricted Subsidiary from further liability therefor, and
(bB) any securities, notes or other obligations received by the Company Holdings or any such Restricted Subsidiary from such transferee that are (within 90 days of receipt and subject to ordinary settlement periods) converted by the Company Holdings or such Restricted Subsidiary into cash within 180 days of the receipt thereof (to the extent of the cash receivedreceived in that conversion); and and
(ciii) any Designated Non-cash Consideration received 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 Company or any of its Restricted Subsidiaries Security Documents, all consideration (including cash and Cash Equivalents) received in such Asset Sale shall be expressly made subject to the Lien under the Security Documents; provided, that the Borrower or any Guarantor may designate consideration received in exchange for the sale or other disposition of Collateral having an aggregate fair market value, taken together with all other Designated Non-cash Consideration received pursuant to this clause (c) after December 14, 2010 that is at that time outstanding, not to exceed the greater Fair Market Value of $150 75 million and 5since the Effective Date as “Excluded Assets” (as defined in the Security Agreement) not subject to the Lien under the Security Documents. Notwithstanding the foregoing, the 75% of Total limitation referred to in Section 9.04(ii) shall be deemed satisfied with respect to any Asset Sale in which the cash, Cash Equivalents or Replacement Assets at the time portion of the receipt of such Designated Non-cash Consideration (consideration received therefrom, determined in accordance with the fair market value of each item of Designated Nonforegoing provision on an after tax basis, is equal to or greater than what the after-cash Consideration being measured at tax proceeds would have been had such Asset Sale complied with the time received and without giving effect to subsequent changes in value), shall, in each of (a), (b) and (c) above, be deemed to be cash for the purposes of this provision or for purposes of the second paragraph of this Section 4.10; andaforementioned 75% limitation.
Appears in 2 contracts
Samples: Credit Agreement and Subsidiaries Guaranty (Leap Wireless International Inc), Credit Agreement (Leap Wireless International Inc)
Asset Sales. The (a) Neither the Company shall notnor any Restricted Subsidiary will, and shall not permit any of its Restricted Subsidiaries to, directly or indirectly:
(1) consummate an Asset Sale unless (i) the Company or the applicable Restricted Subsidiary, as the case may be, such entity 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 which other disposition is made (as determined in good faith by the CompanyBoard of such entity); and
(ii2) consummate or enter into a binding obligation to consummate an Asset Sale unless at least 75% of the consideration received by the Company or the Restricted Subsidiary, as the case may be, such entity from such Asset Sale shall will be in the form of cash or Cash Equivalents; provided that . For purposes of this provision, each of the amount offollowing shall be deemed to be cash:
(aA) any liabilities (as shown on the Company’s or such Restricted Subsidiaryentity’s most recent balance sheet (or in the footnotes notes thereto, or if incurred or accrued subsequent to the date of such balance sheet, such liabilities that would have been shown on the Company’s or such Restricted Subsidiary’s balance or the footnotes thereto if such incurrence or accrual had taken place on the date of such balance sheet, as determined by the Company) of the Company or any such Restricted Subsidiary (other than liabilities that are by their terms subordinated Indebtedness subordinate in right of payment to the Notes) that are assumed by the transferee of any such assets; and
(bB) to the extent of the cash received, any securities, notes or other obligations or securities received by the Company or any such Restricted Subsidiary Obligor from such transferee that are converted by such entity into cash within 180 days of receipt.
(b) Notwithstanding the foregoing, the Company or a Restricted Subsidiary will be permitted to consummate an Asset Sale without complying with the foregoing provisions if:
(1) such entity receives consideration at the time of such Asset Sale at least equal to the fair market value of the assets or other property sold, issued or otherwise disposed of (as evidenced by a resolution of the Board of such entity); and
(2) the consideration for such Asset Sale constitutes (x) Productive Assets; provided that any non-cash consideration not constituting Productive Assets received by such entity in connection with such Asset Sale that is converted into or sold or otherwise disposed of for cash or Cash Equivalents at any time within 360 days after such Asset Sale shall constitute Net Cash Proceeds subject to the provisions set forth above or (y) Designated Non-Cash Consideration received by the Company or such Restricted Subsidiary into cash within 180 days of the receipt thereof (to the extent of the cash received); and (c) any Designated Non-cash 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 Non-cash Cash Consideration received pursuant to this clause (cy) after December 14, 2010 that is at that the time outstanding, not to exceed the greater of $150 75 million and 5% of Total Assets at the time of the receipt of such Designated Non-cash Consideration (Cash Consideration, with the fair market value of each item of Designated Non-cash Cash Consideration being measured at the time received and without giving effect to subsequent changes in value.
(c) Upon the consummation of an Asset Sale, the Company or the affected Restricted Subsidiary will be required to apply an amount equal to all Net Cash Proceeds (excluding amounts received and considered as “cash” pursuant to Section 4.10 (a)(2)(A)) that are received from such Asset Sale within 360 days of the receipt thereof either:
(1) to reinvest (or enter into a binding commitment to invest, if such investment is effected within 360 days after the date of such commitment) in Productive Assets or in Asset Acquisitions not otherwise prohibited by this Indenture;
(2) to repay Indebtedness under the Bank Credit Agreement (or other Indebtedness of the Company or such Restricted Subsidiary, as applicable, secured by a Lien), shalland, in the case of any such repayment under any revolving credit or other facility that permits future borrowings, effect a permanent reduction in the availability or commitment under such facility;
(3) to (x) prepay, repay, redeem or purchase Notes including (i) as provided under Section 3.07 hereof, (ii) making an offer (in accordance with the procedures set forth below for a Net Proceeds Offer) to all Holders to purchase their Notes at a purchase price of at least 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 or (iii) purchasing Notes at a purchase price of at least 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, through privately negotiated transactions or open market purchases, in a manner that complies with this Indenture and applicable securities law or (y) prepay, repay, redeem or purchase any other pari passu Indebtedness of the Company or any Guarantor; provided that if the Company or any Restricted Subsidiary shall so repay or prepay any such other pari passu Indebtedness, the Company will reduce (or offer to reduce) Obligations under this Indenture, the Notes and the Note Guarantees on a pro rata basis (based on the amount so applied to such repayments or prepayments) as provided in the immediately preceding clause (x), subject to the applicable procedures of DTC;
(4) to improve real property or make a capital expenditure; or
(5) any combination of the foregoing; provided, however, that if the Company or any Restricted Subsidiary contractually commits within such 360-day period to apply such Net Cash Proceeds within 180 days following such contractual commitment in accordance with the foregoing clauses (1), (2), (3), (4) or (5) of this Section 4.10(c) and such Net Cash Proceeds are subsequently applied as contemplated in such contractual commitment, then the requirement for application of Net Cash Proceeds as set forth in this paragraph shall be considered satisfied. Pending the final application of any such Net Cash Proceeds, the Company or such Restricted Subsidiary may temporarily reduce revolving Indebtedness or otherwise invest such Net Cash Proceeds in any manner not prohibited by this Indenture. Any Net Cash Proceeds from an Asset Sale that are not applied pursuant to the preceding paragraph shall constitute “Excess Net Proceeds.” No later than 20 Business Days following the date on which the aggregate amount of Excess Net Proceeds exceeds $75 million (the “Net Proceeds Trigger Date”), the Company shall make an offer to purchase (the “Net Proceeds Offer”), on a date (the “Net Proceeds Offer Payment Date”) not less than 30 nor more than 60 days following the applicable Net Proceeds Trigger Date, on a pro rata basis, an aggregate principal amount equal to the Excess Net Proceeds of (a) Notes, at a purchase price in cash equal to 100% of the aggregate principal amount of Notes, in each of (a)case, plus accrued and unpaid interest thereon, if any, on the Net Proceeds Offer Payment Date, and (b) other pari passu Indebtedness of the Company or any Guarantor, in each case to the extent required by the terms thereof. If at any time within 360 days after an Asset Sale any non-cash consideration received by the Company or the affected Restricted Subsidiary in connection with such Asset Sale (other than non-cash consideration deemed to be cash as provided in Section 4.10(a)(2)(B)) is converted into or sold or otherwise disposed of for cash, then such conversion or disposition will be deemed to constitute an Asset Sale hereunder and the Net Cash Proceeds thereof will be applied in accordance with this Section 4.10. To the extent that the aggregate principal amount of Notes or other pari passu Indebtedness tendered pursuant to the Net Proceeds Offer is less than the Excess Net Proceeds, the Company or such Restricted Subsidiary may use any remaining proceeds of such Asset Sales for general corporate purposes (c) abovebut subject to the other terms of this Indenture). Upon completion of a Net Proceeds Offer, the Excess Net Proceeds relating to such Net Proceeds Offer will be deemed to be cash for the purposes of this provision or zero for purposes of any subsequent Asset Sale. In the second paragraph event that a Restricted Subsidiary consummates an Asset Sale, only that portion of the Net Cash Proceeds therefrom (including any Net Cash Proceeds received upon the sale or other disposition of any non-cash proceeds received in connection with an Asset Sale) that are distributed to or received by the Company or a Restricted Subsidiary will be required to be applied by the Company or the Restricted Subsidiary in accordance with the provisions of this Section 4.10; . The Company will comply with all applicable laws, including, without limitation, Section 14(e) of the Exchange Act and the rules thereunder and all applicable federal and state securities laws, and will include all instructions and materials necessary to enable holders to tender their Notes and, to the extent that the provisions of any such laws or rules conflict with the provisions of this Section 4.10, the Company’s compliance with such laws and rules shall not in and of itself cause a breach of the Company’s obligations under Section 3.09 or this Section 4.10.
Appears in 2 contracts
Samples: Indenture (Red Rock Resorts, Inc.), Indenture (Red Rock Resorts, Inc.)
Asset Sales. (a) The Company Borrower shall not, and shall not permit any of its Restricted Subsidiaries to, consummate cause or make an Asset Sale Sale, unless (ix) the Company Borrower or the applicable any of its Restricted SubsidiarySubsidiaries, as the case may be, receives consideration at the time of such Asset Sale at least equal to the fair market value Fair Market Value (as determined in good faith by the Borrower) of the assets sold or otherwise disposed of and (as determined in good faith by the Company); (iiy) at least 75% of the consideration therefor received by the Company Borrower or the such Restricted Subsidiary, as the case may be, from such Asset Sale shall be is in the form of cash or Cash Equivalents; provided that the amount of:
(ai) any liabilities (as shown on the CompanyBorrower’s or such Restricted Subsidiary’s most recent balance sheet or in the footnotes notes thereto, or if incurred or accrued subsequent to the date of such balance sheet, such liabilities that would have been shown on the Company’s or such Restricted Subsidiary’s balance or the footnotes thereto if such incurrence or accrual had taken place on the date of such balance sheet, as determined by the Company) of the Company Borrower or any such Restricted Subsidiary of the Borrower (other than liabilities that are by their terms subordinated to the NotesLoans) that are assumed by the transferee of any such assets; ,
(bii) any securities, notes or other obligations or other securities or assets received by the Company Borrower or any such Restricted Subsidiary of the Borrower from such transferee that are converted by the Company Borrower or such Restricted Subsidiary of the Borrower into cash within 180 days of the receipt thereof (to the extent of the cash received); and , and
(ciii) any Designated Non-cash Consideration received by the Company Borrower or any of its Restricted Subsidiaries in such Asset Sale having an aggregate fair market valueFair Market Value, taken together with all other Designated Non-cash Consideration received pursuant to this clause (ciii) after December 14, 2010 that is at that time outstanding, not to exceed the greater of $150 million and 56.25% of Total Assets of the Borrower at the time of the receipt of such Designated Non-cash Consideration (with the fair market value 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 of (a), (b) and (c) above, shall be deemed to be cash Cash Equivalents for the purposes of this provision Section 10.4(a).
(b) Within 15 months after the Borrower’s or for purposes any Restricted Subsidiary of the second paragraph Borrower’s receipt of the Net Proceeds of any Asset Sale (or Event of Loss Proceeds), the Borrower or such Restricted Subsidiary of the Borrower may apply the Net Proceeds from such Asset Sale (together with any Event of Loss Proceeds), at its option:
(i) to permanently reduce Obligations under Secured Indebtedness or Pari Passu Indebtedness (provided that if the Borrower or any Guarantor shall so reduce Obligations under Pari Passu Indebtedness (other than Pari Passu Indebtedness that is Secured Indebtedness and other than Pari Passu Indebtedness that is Indebtedness represented by the Borrower’s guarantee of Indebtedness of any Restricted Subsidiary of the Borrower), the Borrower shall equally and ratably reduce Obligations under this Agreement if the Loans are then prepayable or, if the Loans may not then be prepaid, by making an offer (in accordance with the procedures set forth below for an Excess Proceeds Offer) to all holders to purchase at a purchase price equal to 100% of the principal amount thereof, plus accrued and unpaid interest and additional interest, if any, the pro rata principal amount of Loans that would otherwise be prepaid) or Indebtedness of a Restricted Subsidiary that is not a Guarantor, in each case other than Indebtedness owed to the Borrower or an Affiliate of the Borrower; provided that if an offer to purchase any Indebtedness of any of the Borrower or its Restricted Subsidiaries is made in accordance with the terms of such Indebtedness, the obligation to permanently reduce Indebtedness of the Borrower or a Restricted Subsidiary, as the case may be, will be deemed to be satisfied to the extent of the amount of the offer, whether or not accepted by the holders thereof, and no Net Proceeds in the amount of such offer will be deemed to exist following such offer,
(ii) to make an investment in any one or more businesses (provided that if such investment is in the form of the acquisition of Capital Stock of a Person, such acquisition results in such Person becoming a Restricted Subsidiary of the Borrower), or capital expenditures or assets, in each case used or useful in a Similar Business, and/or
(iii) to make an investment in any one or more businesses (provided that if such investment is in the form of the acquisition of Capital Stock of a Person, such acquisition results in such Person becoming a Restricted Subsidiary of the Borrower), properties or assets that replace the properties and assets that are the subject of such Asset Sale or Event of Loss; provided that in the case of clauses (ii) and (iii) above, if a binding commitment is made within 15 months of such Asset Sale or Event Loss, then such reinvestment period will be extended by up to an additional 12 months. Pending the final application of any such Net Proceeds (or Event of Loss Proceeds), the Borrower or such Restricted Subsidiary of the Borrower may temporarily reduce Indebtedness under a revolving credit facility, if any, or otherwise invest such Net Proceeds (or Event of Loss Proceeds) in Cash Equivalents or Investment Grade Securities. Any Net Proceeds from any Asset Sale (or Event of Loss Proceeds) that are not applied as provided and within the time period set forth in the first sentence of this Section 4.10; and10.4(b) (it being understood that any portion of such Net Proceeds (or Event of Loss Proceeds) used to make an offer to prepay the Loans, as described in clause (i) above, shall be deemed to have been invested whether or not such offer is accepted) shall be deemed to constitute “Excess Proceeds.” When the aggregate amount of Excess Proceeds exceeds $55.0 million, the Borrower shall make a Mandatory Prepayment Offer pursuant to Section 5.2 and in accordance with this Section 10.4. Upon completion of any such Excess Proceeds Offer, the amount of Excess Proceeds shall be reset at zero.
Appears in 2 contracts
Samples: Senior Unsecured Pik Election Bridge Loan Credit Agreement (Intelsat LTD), Senior Unsecured Bridge Loan Credit Agreement (Intelsat LTD)
Asset Sales. (a) The Company shall not, and shall not permit any of its Restricted Subsidiaries to, consummate an Asset Sale unless unless:
(i) the Company (or the applicable Restricted Subsidiary, as the case may be, ) receives consideration at the time of such Asset Sale at least equal to the fair market value of the assets or Equity Interests issued or sold or otherwise disposed of (as such fair market value to be determined in good faith by the CompanyCompany on the date of contractually agreeing to such Asset Sale); ;
(ii) at least 75% of the consideration received in the Asset Sale by the Company or the such Restricted Subsidiary, as the case may be, from such Asset Sale shall be Subsidiary is in the form of cash or Cash Equivalents; provided that . For purposes of this clause (ii) only, each of the amount offollowing shall be deemed to be cash:
(aA) the amount of any liabilities (liabilities, as shown on the Company’s or such Restricted Subsidiary’s most recent balance sheet or in the footnotes thereto, or if incurred or accrued subsequent to the date of such balance sheet, such liabilities that would have been shown on the Company’s or such Restricted Subsidiary’s balance or the footnotes thereto if such incurrence or accrual had taken place on the date of such balance sheet, as determined by the Company) of the Company or any such Restricted Subsidiary (other than contingent liabilities and liabilities that are by their terms subordinated to the NotesNotes or any Subsidiary Guarantee) that are assumed by the transferee of any such assets; assets pursuant to a customary novation agreement or by operation of law that releases the Company or such Restricted Subsidiary from further liability;
(bB) any securities, notes or other obligations received by the Company or any such Restricted Subsidiary from such transferee that are converted by the Company or such Restricted Subsidiary into cash within 180 days of the receipt thereof (closing of the related Asset Sale, to the extent of the cash received)received in that conversion; and and
(cC) any Designated Non-cash Consideration received by the Company or any of its such Restricted Subsidiaries 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) after December 14, 2010 that is at that time outstanding, not to exceed the greater of $150 million and 55.0% of Total Consolidated Net Tangible Assets at the time of the receipt of such Designated Non-cash Consideration (Consideration, with the fair market value of each item of Designated Non-cash Consideration being measured at the time received and without giving effect to subsequent changes in value; and
(iii) the Net Proceeds thereof shall be delivered to the Collateral Agent for deposit into the Collateral Account as Trust Monies.
(b) Within 365 days after the receipt of any Net Proceeds from an Asset Sale, the Company or such Restricted Subsidiary may apply those Net Proceeds at its option to:
(i) repay, prepay, purchase, repurchase, redeem, defease or otherwise acquire, retire, cancel or discharge notes (including through open-market purchases);
(ii) make a capital expenditure relating to an asset that constitutes Collateral;
(iii) acquire other long-term real property assets (including fee properties and leasehold interests that have a term in excess of the maturity of the notes) that are pledged as Collateral under the Security Documents with the Lien on such Collateral securing the notes; or
(iv) a combination of the foregoing; provided that, in the case of clauses (ii) and (iii) above, a binding commitment shall be treated as a permitted final application of the Net Proceeds from the date of such commitment if the Company or such Restricted Subsidiary enters into such commitment with the good faith expectation that an amount equal to the amount of such Net Proceeds will be applied to satisfy such commitment within 180 days after the end of the 365-day period (an “Acceptable Commitment”) and, in the event any Acceptable Commitment is later cancelled, terminated or otherwise not consummated during such period for any reason, then an amount equal to the amount of any such unapplied Net Proceeds shall upon such event constitute Excess Proceeds.
(c) Any Net Proceeds from Asset Sales that are not applied or invested as provided in Section 4.10(b) shall constitute “Excess Proceeds.” When the aggregate amount of Excess Proceeds exceeds $35.0 million, the Company shall make an offer (an “Asset Sale Offer”) to all Holders of Notes to purchase the maximum aggregate principal amount of the Notes that may be purchased with an amount equal to the Excess Proceeds at an offer price in cash in an amount equal to 100% of the principal amount (or accreted value, as applicable) of such Notes plus accrued and unpaid interest, if any, to, but not including, the date of purchase, subject to, without duplication, the right of Holders of record on the relevant record date to receive interest due on the relevant interest payment date, in accordance with this Indenture. If any Excess Proceeds remain after consummation of an Asset Sale Offer (“Declined Excess Proceeds”), those Declined Excess Proceeds shall be automatically released from the Notes Liens and the Company may use those Declined Excess Proceeds for any purpose not otherwise prohibited by this Indenture. If the aggregate principal amount of notes tendered in any Asset Sale Offer by Holders exceeds the amount of Excess Proceeds, the Trustee shall select the notes to be purchased on a pro rata basis based on the principal amounts tendered, but no notes shall be selected and purchased in an unauthorized denomination. Upon completion of each Asset Sale Offer, the amount of Excess Proceeds shall be reset at zero. 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 foregoing 365-day period.
(d) All references in this Section 4.10 to “Net Proceeds” and “Excess Proceeds” shall be deemed to mean cash in an amount equal to the amount of Net Proceeds or Excess Proceeds, as applicable, but not necessarily the actual cash received from the relevant Asset Sale. The Collateral Agent shall, upon request of the Company pursuant to an Officers’ Certificate, disburse Trust Monies from the Collateral Account to or for the benefit of the Company for the purposes described in each of (a), (bSections 4.10(b) and (c), and the Notes Liens on such Trust Monies shall be automatically released upon such disbursement.
(e) aboveIf the Asset Sale purchase date is on or after a record date and on or before the related interest payment date, any 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 interest will be payable to Holders who tender Notes pursuant to the Asset Sale Offer.
(f) Upon the commencement of an Asset Sale Offer, the Company will send (or provide in accordance with the applicable procedures of DTC) a notice to the Trustee and each of the Holders, with a copy to the Trustee. The notice will contain all instructions and materials necessary to enable such Holders to tender Notes pursuant to the Asset Sale Offer. The notice, which will govern the terms of the Asset Sale Offer, will state:
(i) that the Asset Sale Offer is being made pursuant to this Section 4.10 and the length of time the Asset Sale Offer will remain open;
(ii) the offer amount, the purchase price and the Asset Sale Offer purchase date;
(iii) that any Note not tendered and accepted for payment will continue to accrue interest;
(iv) that, unless the Company defaults in making such payment, any Note accepted for payment pursuant to the Asset Sale Offer will cease to accrue interest after the Asset Sale purchase date;
(v) that Holders electing to have a Note purchased pursuant to an Asset Sale Offer may elect to have Notes purchased only in denominations of $2,000 and integral multiples of $1,000 in excess thereof;
(vi) that Holders electing to have a Note purchased pursuant to any Asset Sale Offer will be required to surrender the Note, with the form entitled “Option of Holder to Elect Purchase” on the reverse of the Note completed, or transfer by book-entry transfer, to the Company, a Depositary, if appointed by the Company, or a Paying Agent at the address specified in the notice at least three days before the Asset Sale purchase date;
(vii) 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 365-day 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;
(viii) that, if the aggregate principal amount of Notes surrendered by Holders exceeds the offer amount, the Trustee will select the Notes to be purchased on a pro rata basis based on the principal amount of Notes surrendered (with such adjustments as may be deemed appropriate by the Company so that only Notes in denominations of $2,000, or integral multiples in excess thereof, will be purchased); and
(ix) that Holders whose Notes were purchased only in part will be issued new Notes equal in principal amount to be cash for the purposes of this provision or for purposes unpurchased portion of the second paragraph Notes surrendered (or transferred by book-entry transfer).
(g) On or before the Asset Sale Offer purchase date, the Company will, to the extent lawful, accept for payment, on a pro rata basis to the extent necessary, the offer amount of Notes or portions thereof tendered pursuant to the Asset Sale Offer, or if less than the offer amount has been tendered, all Notes tendered, and will deliver to the Trustee an Officers’ Certificate stating that such Notes or portions thereof were accepted for payment by the Company in accordance with the terms of this Section 4.10; and. The Company, the Depositary or the Paying Agent, as the case may be, will promptly (but in any case not later than five days after the Asset Sale purchase date) mail (or provide in accordance with the applicable procedures of DTC) to each tendering Holder an amount equal to the purchase price of the Notes tendered by such Holder and accepted by the Company for purchase, and the Company will promptly issue a new Note, and the Trustee, upon written request from the Company, will authenticate and mail (or provide in accordance with the applicable procedures of DTC) such new Note to such Holder, in a principal amount equal to any unpurchased portion of the Note surrendered. Any Note not so accepted shall be promptly mailed (or provided in accordance with the applicable procedures of DTC) by the Company to the Holder thereof. The Company will publicly announce the results of the Asset Sale Offer on the Asset Sale Offer purchase date.
(h) The Company shall comply with the requirements of Rule 14e-1 under the Exchange Act and any other securities laws and regulations thereunder to the extent those laws and regulations are applicable in connection with each repurchase of Notes pursuant to a Change of Control Offer or Asset Sale Offer. To the extent that the provisions of any securities laws or regulations conflict with this Section 4.10, the Company shall comply with the applicable securities laws and regulations and shall be deemed not to have breached its obligations under this Section 4.10 by virtue of its compliance with such securities laws or regulations.
Appears in 2 contracts
Samples: Indenture (Cinemark Usa Inc /Tx), Indenture (Cinemark Holdings, Inc.)
Asset Sales. The Company shall will not, and shall will not permit any of its Restricted Subsidiaries to, consummate an Asset Sale unless unless:
(i1) 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 (as determined in good faith by the Company); (ii) at least 75% of the consideration received by the Company or the Restricted Subsidiary, as the case may be, from such ) receives consideration at the time of the Asset Sale shall be 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 is in the form of cash or Cash Equivalents; provided that cash. For purposes of this provision, each of the amount offollowing shall be deemed to be cash:
(aA) any liabilities (liabilities, as shown on the Company’s or such Restricted Subsidiary’s most recent balance sheet or in the footnotes thereto, or if incurred or accrued subsequent to the date of such consolidated balance sheet, such liabilities that would have been shown on the Company’s or such Restricted Subsidiary’s balance or the footnotes thereto if such incurrence or accrual had taken place on the date of such balance sheet, as determined by the Company) of the Company or any such Restricted Subsidiary (other than contingent liabilities and liabilities that are by their terms subordinated to the NotesNotes or any Note Guarantee) that are assumed by the transferee of any such assets; assets pursuant to a valid written assignment and assumption agreement that releases the Company or such Restricted Subsidiary from further liability;
(bB) any securities, notes or other obligations received by the Company or any such Restricted Subsidiary from such transferee that are converted by the Company or such Restricted Subsidiary into cash within 180 90 days of the receipt thereof (thereof, to the extent of the cash received)received in that conversion;
(C) any stock or assets of the kind referred to in clauses (2) or (4) of the next paragraph of this Section 4.10; and and
(cD) any Designated Non-cash Noncash Consideration received by the Company or any of its Restricted Subsidiaries in such Asset Sale having an aggregate fair market valueFair Market Value, taken together with all other Designated Non-cash Noncash Consideration received pursuant to this clause (cd) after December 14, 2010 that is at that time then outstanding, not to exceed the greater of (i) $150 15.0 million and 5(ii) 2.5% of Total Assets at the time of receipt of such Designated Noncash Consideration after giving pro forma effect to such Asset Sale and the receipt of such Designated Non-cash Consideration (Noncash Consideration, with the fair market value Fair Market Value of each item of Designated Non-cash Noncash Consideration being measured at the time received and without giving effect to subsequent changes in value). Within 365 days after the receipt of any Net Proceeds from an Asset Sale, shallthe Company (or the applicable Restricted Subsidiary, as the case may be) may apply such Net Proceeds at its option:
(1) to repay Senior Debt and, if the Senior Debt repaid is revolving credit Indebtedness, to correspondingly reduce commitments with respect thereto;
(2) to acquire all or substantially all of the assets of, or any Capital Stock of, another Permitted Business, if, after giving effect to any such acquisition of Capital Stock, the Permitted Business is or becomes a Restricted Subsidiary of the Company;
(3) to make a capital expenditure;
(4) to acquire other assets that are not classified as current assets under GAAP and that are used or useful in each a Permitted Business; and/or
(5) any combination of (a)the foregoing. Pending the final application of any Net Proceeds, (b) and (c) above, be deemed to be cash for the purposes of Company may temporarily reduce revolving credit borrowings or otherwise invest the Net Proceeds in any manner that is not prohibited by this provision Indenture. Any Net Proceeds from Asset Sales that are not applied or for purposes of invested as provided in the second paragraph of this Section 4.10 will constitute “Excess Proceeds.” When the aggregate amount of Excess Proceeds exceeds $15.0 million, within five business days thereof, the Company will make an Asset Sale Offer to all Holders of Notes and all holders of other Indebtedness that is pari passu with the Notes containing provisions similar to those set forth in this Indenture with respect to offers to purchase or redeem with the proceeds of sales of assets in accordance with Section 3.09 hereof to purchase the maximum principal amount of Notes and such other pari passu Indebtedness that may be purchased out of the Excess Proceeds. The offer price in any Asset Sale Offer will be equal to 100% of the principal amount plus accrued and unpaid interest and Liquidated Damages, if any, to the date of purchase, and will be payable in cash. If any Excess Proceeds remain after consummation of an Asset Sale Offer, the Company may use those Excess Proceeds for any purpose not otherwise prohibited by this Indenture. If the aggregate principal amount of Notes and other pari passu Indebtedness tendered into such Asset Sale Offer exceeds the amount of Excess Proceeds, the Trustee shall select the Notes and such other pari passu Indebtedness to be purchased on a pro rata basis. Upon completion of each Asset Sale Offer, the amount of Excess Proceeds will be reset at zero. The Company will comply with the requirements of Rule 14e-1 under the Exchange Act and any other securities laws and regulations thereunder to the extent those laws and regulations are applicable in connection with each repurchase of Notes pursuant to an Asset Sale Offer. To the extent that the provisions of any securities laws or regulations conflict with the provisions of Section 3.09 hereof or this Section 4.10; and, the Company will comply with the applicable securities laws and regulations and will not be deemed to have breached its obligations under Section 3.09 hereof or this Section 4.10 by virtue of such compliance.
Appears in 2 contracts
Samples: Indenture (Innophos, Inc.), Indenture (Innophos Investment Holdings, Inc.)
Asset Sales. The Effect any Asset Sale, or agree to effect any Asset Sale, except that the following shall be permitted:
(a) disposition of used, worn out, obsolete or surplus property by any Company in the ordinary course of business and the abandonment or other disposition of Intellectual Property that is, in the reasonable judgment of Borrowers, no longer economically practicable to maintain or useful in the conduct of the business of the Companies taken as a whole;
(b) so long as no Default is then continuing or would result therefrom, any other Asset Sale (other than the Equity Interests of any Wholly Owned Subsidiary unless all of the Equity Interests of such Subsidiary then owned by any of the Companies are sold to the purchaser thereof in a sale permitted by this clause (b)) for fair market value, with at least 80% of the consideration received for all such Asset Sales payable in cash upon such sale; provided, however, that with respect to any such Asset Sale pursuant to this clause (b), the aggregate consideration received during any fiscal year for all such Asset Sales shall not exceed $150 million;
(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 shall consolidations, and liquidations and dissolutions in compliance with Section 6.05;
(e) sales, transfers and other dispositions of Accounts for the fair market value thereof in connection with a Permitted Factoring Facility so long as at any time of determination the aggregate book value of the then outstanding Accounts subject to a Permitted Factoring Facility does not permit exceed an amount equal to $300 million less the amount of Indebtedness under all outstanding Securitization Facilities at such time less the amount of Indebtedness outstanding under Section 6.01(m) at such time;
(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 (other than the Equity Interests of any Subsidiary unless all of the Equity Interests of such Subsidiary then owned by any of its the Companies are sold to the purchaser thereof in a sale permitted by this clause (h)) (i) by and among Unrestricted Grantors (other than Holdings), (ii) by and among Restricted Subsidiaries toGrantors organized under the laws of the same country (or jurisdictions within such same country), consummate an (iii) by Restricted Grantors to Unrestricted Grantors so long as the consideration paid by Unrestricted Grantors in each such Asset Sale unless does not exceed fair market value for such Asset Sale, (iv) by Unrestricted Grantors to Restricted Grantors of property for fair market value, and for aggregate consideration, not in excess of $25 million for all such Asset Sales following the Closing Date, (v) by Companies that are not Loan Parties to Loan Parties so long as the consideration paid by Loan Parties in each such Asset Sale does not exceed (1) the fair market value for such Asset Sale and (2) $25 million for all such Asset Sales following the Closing Date; 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 any Secured Parties pursuant to the relevant Security 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 relevant 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;
(i) the Company Companies may consummate Asset Swaps (other than Asset Swaps constituting all or substantially all of the asset of a Company), so long as (x) each such sale is in an arm’s-length transaction and the applicable Restricted Subsidiary, as the case may be, Company 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 consideration (as determined in good faith by the such Company); , (iiy) the Collateral Agent shall have a First Priority perfected Lien on the assets acquired pursuant to such Asset Swap at least 75% of to the consideration received by the Company or the Restricted Subsidiary, same extent as the case may be, from assets sold pursuant to such Asset Sale Swap (immediately prior to giving effect thereto) and (z) the aggregate fair market value of all assets sold pursuant to this clause
(i) shall be not exceed $25 million in the form of cash or Cash Equivalentsaggregate since the Closing Date; provided that so long as the amount of:assets acquired by any Company pursuant to the respective Asset Swap are located in the same country as the assets sold by such Company, such $25 million aggregate cap will not apply to such Asset Swap;
(aj) any liabilities sales, transfers and other dispositions of Receivables and Related Security to a Securitization Subsidiary for the fair market value thereof and all sales, transfers or other dispositions of Securitization Assets by a Securitization Subsidiary under, and pursuant to, a related Securitization Facility permitted under Section 6.01(e);
(k) so long as shown on no Default is then continuing or would result therefrom, the Company’s arm’s-length sale or such Restricted Subsidiary’s most recent balance sheet or disposition for cash of Equity Interests in the footnotes thereto, or if incurred or accrued subsequent to the date of such balance sheet, such liabilities that would have been shown on the Company’s or such Restricted Subsidiary’s balance a Joint Venture Subsidiary for fair market value or the footnotes thereto if such incurrence or accrual had taken place on issuance of Equity Interests in a Joint Venture Subsidiary; provided, however, that the date of such balance sheet, as determined by the Company) of the Company or any such Restricted Subsidiary (other than liabilities that are by their terms subordinated to the Notes) that are assumed by the transferee of any such assets; (b) any securities, notes or other obligations received by the Company or any such Restricted Subsidiary from such transferee that are converted by the Company or such Restricted Subsidiary into cash within 180 days of the receipt thereof (to the extent of the cash received); and (c) any Designated Non-cash Consideration received by the Company or any of its Restricted Subsidiaries in such Asset Sale having an aggregate fair market value, taken together with value of all other Designated Non-cash Consideration received such Equity Interests sold or otherwise disposed of pursuant to this clause (ck) after December 14, 2010 that is at that time outstanding, following the Closing Date shall not to exceed the greater $300 million; and
(l) issuances of $150 million and 5% 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, in each of (aEquity Interests permitted under Section 6.13(b)(i), (bii), (iii), (iv) and (c) abovevi). To the extent the Required Lenders or such other number of Lenders whose consent is required under Section 11.02, be deemed to be cash for as applicable, waive the purposes of this provision or for purposes of the second paragraph provisions of this Section 4.10; and6.06 with respect to the sale of any Collateral or any Collateral is sold as permitted by this Section 6.06, and so long as the Lien of the Revolving Credit Funding Agent or the Revolving Credit Collateral Agent (or any other Revolving Credit Agents) pursuant to the Revolving Credit Loan Documents in such Collateral is also released, such Collateral (unless sold to a Loan Party) shall be sold free and clear of the Liens created by the Security Documents, and so long as the Loan Parties shall have provided the Agents such certificates or documents as any Agent shall reasonably request in order to demonstrate compliance with this Section 6.06, the Agents shall take all actions as Administrative Borrower reasonably requests in order to effect the foregoing.
Appears in 2 contracts
Samples: Credit Agreement (Novelis Inc.), Credit Agreement (Novelis South America Holdings LLC)
Asset Sales. The Company shall Borrower will not, and shall will not permit any Subsidiary to, sell, transfer, lease or otherwise dispose of (in one transaction or in a series of transactions) all or a substantial portion of its Restricted assets (whether now owned or hereafter acquired), except that the Borrower and the Subsidiaries to, consummate an Asset Sale unless may (i) sell, lease or otherwise dispose of inventory as a part of the Company outsourcing of a manufacturing activity previous conducted by the Borrower pursuant to which the Borrower or the applicable Restricted Subsidiary, as the case may be, receives consideration at the time Subsidiaries intend to repurchase substantially all of such Asset Sale at least equal inventory (or goods manufactured therewith) for resale to customers, (ii) sell, lease or otherwise dispose of inventory and obsolete equipment, in the ordinary course of business, (iii) sell, lease or otherwise dispose of property in any individual transaction not related to any other such transaction if the aggregate fair market value of the assets sold sold, leased or otherwise disposed of in such transaction is less than $5,000,000, (as determined iv) sell, lease or otherwise dispose of property to the Borrower or a Subsidiary in good faith any transaction permitted by the CompanySection 6.04(a)(iii); , (iiv) at least 75% of the consideration received by the Company or the Restricted Subsidiarysell accounts receivable in Non-Recourse Receivables Sales, as the case may be, from such Asset Sale shall be in the form of cash or Cash Equivalents; provided that the aggregate amount of:
(a) any liabilities (as shown on of accounts receivable of the Company’s or such Restricted Subsidiary’s most recent balance sheet or in Borrower and the footnotes thereto, or if incurred or accrued subsequent to the date of such balance sheet, such liabilities that would Subsidiaries which shall have been shown on the Company’s or such Restricted Subsidiary’s balance or the footnotes thereto if such incurrence or accrual had taken place on the date of such balance sheet, as determined by the Company) of the Company or any such Restricted Subsidiary (other than liabilities that are by their terms subordinated to the Notes) that are assumed by the transferee of any such assets; (b) any securities, notes or other obligations received by the Company or any such Restricted Subsidiary from such transferee that are converted by the Company or such Restricted Subsidiary into cash within 180 days of the receipt thereof (to the extent of the cash received); and (c) any Designated sold in Non-cash 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 Non-cash Consideration received Recourse Receivables Sales pursuant to this clause (c) after December 14, 2010 that is at that time outstanding, Section 6.05 during any fiscal quarter shall not to exceed the greater of (x) $150 million 150,000,000 and 5(y) 15% of Total Assets the amount equal to the aggregate amount outstanding of all accounts receivable of the Borrower and the Subsidiaries as of the last day of such fiscal quarter plus the aggregate amount of such accounts receivable sold during such quarter in Non-Recourse Receivables Sales, (vi) sell (and leaseback) the San Diego Facility to the extent permitted under Section 6.03, and (vii) sell, lease or otherwise dispose of property in any other transaction otherwise permitted under this Agreement, provided that the aggregate book value of all assets sold, leased or otherwise disposed of in transactions under this clause (vi) shall not when taken together at the time of each such sale, lease or other disposition exceed 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, in each greater of (a), (bx) $150,000,000 and (cy) above, be deemed to be cash for the purposes 15% of this provision or for purposes Consolidated Tangible Assets as of the second paragraph last day of this the most recent fiscal period in respect of which financial statements have been delivered pursuant to Section 4.10; and5.01 at such time.
Appears in 2 contracts
Samples: Revolving Credit Agreement (Teradata Corp /De/), Revolving Credit Agreement (Teradata Corp /De/)
Asset Sales. (a) The Company shall not, and shall not permit any of its Restricted Subsidiaries to, consummate cause, make or suffer to exist an Asset Sale Sale, unless (ix) the Company Company, or the applicable its Restricted SubsidiarySubsidiaries, as the case may be, receives consideration at the time of such Asset Sale at least equal to the fair market value of the assets sold or otherwise disposed of (as determined in good faith by the Company); ) of the assets sold or otherwise disposed of and (iiy) at least 75% of the consideration therefor received by the Company Company, or the such Restricted Subsidiary, as the case may be, from such Asset Sale shall be is in the form of cash or Cash Equivalents; provided that the amount of:
of (aA) any liabilities (as shown on the Company’s 's or such Restricted Subsidiary’s 's most recent balance sheet or in the footnotes notes thereto, or if incurred or accrued subsequent to the date of such balance sheet, such liabilities that would have been shown on the Company’s or such Restricted Subsidiary’s balance or the footnotes thereto if such incurrence or accrual had taken place on the date of such balance sheet, as determined by the Company) of the Company or any such Restricted Subsidiary (other than liabilities that are by their terms subordinated to the Notes) ), that are assumed by the transferee of any such assets; , (bB) any securities, notes or other obligations received by the Company or any such Restricted Subsidiary from such transferee that are converted by the Company or such Restricted Subsidiary into cash within 180 days of the receipt thereof (to the extent of the cash received); ) within 180 days following the closing of such Asset Sale and (cC) any Designated Non-cash 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 Non-cash Noncash Consideration received pursuant to this clause (cC) after December 14, 2010 that is at that time outstanding, not to exceed the greater of $150 million and 515% of Total Assets at the time of the receipt of such Designated Non-cash Noncash Consideration (with the fair market value of each item of Designated Non-cash Noncash Consideration being measured at the time received and without giving effect to subsequent changes in value), shall, in each of (a), (b) and (c) above, shall be deemed to be cash for the purposes of this provision and for no other purpose.
(b) Within 365 days after the Company's or for purposes any Restricted Subsidiary's receipt of the second Net Proceeds of any Asset Sale, the Company or such Restricted Subsidiary may apply the Net Proceeds from such Asset Sale, at its option, (i) to permanently reduce Obligations under the Senior Credit Facility (and to correspondingly reduce commitments with respect thereto) 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 if the Notes are then prepayable or, if the Notes may not be then prepaid, the Company shall make an offer (in accordance with the procedures set forth below for an Asset Sale Offer) to all Holders to purchase at 100% of the principal amount thereof the amount of Notes that would otherwise be prepaid), (ii) to 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 and/or (iii) to make an investment in properties or assets that replace the properties and assets that are the subject of such Asset Sale. Pending the final application of any such Net Proceeds, 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 the Asset Sale that are not invested as provided and within the time period set forth in the first sentence of this paragraph shall be deemed to constitute "Excess Proceeds." When the aggregate amount of Excess Proceeds exceeds $15.0 million, the Company shall make an offer to all Holders of Notes (an "Asset Sale Offer") to purchase the maximum principal amount of Notes, that is an integral multiple of $1,000, that may be purchased out of the Excess Proceeds at an offer price in cash in an amount equal to 100% of the principal amount thereof, plus accrued and unpaid interest, if any, to the date fixed for the closing of such offer (the "Offered Price"). The Company shall commence an Asset Sale Offer with respect to Excess Proceeds within 10 Business Days after the date on which the aggregate amount of Excess Proceeds exceeds $15.0 million by giving to each Holder of the Notes, with a copy to the Trustee, in the manner provided in Section 106 a notice stating:
(i) that the Holder has the right to require the Company to repurchase such Holder's Notes at the Offered Price, subject to proration in the event the Excess Proceeds are less than the aggregate Offered Price of all Notes tendered;
(ii) the date of purchase of Notes pursuant to the Asset Sale Offer (the "Asset Sale Purchase Date"), which shall be no earlier than 30 days nor later than 60 days from the date such notice is mailed;
(iii) that the Offered Price will be paid to Holders electing to have Notes purchased on the Asset Sale Purchase Date, provided that a Holder must surrender its Note to the Paying Agent at the address specified in the notice prior to the close of business at least five Business Days prior to the Asset Sale Purchase Date;
(iv) any Note not tendered will continue to accrue interest pursuant to its terms;
(v) that unless the Company defaults in the payment of the Offered Price, any Note accepted for payment pursuant to the Asset Sale Offer shall cease to accrue interest on and after the Asset Sale Purchase Date;
(vi) that Holders will be entitled to withdraw their tendered Notes and their election to require the Company to purchase such Notes, provided that the Company receives, not later than the close of business on the third Business Day preceding the Asset Sale Purchase Date, a telegram, telex, facsimile transmission or letter setting forth the name of the Holder, the principal amount of the Notes tendered for purchase, and a statement that such Holder is withdrawing its election to have such Notes purchased;
(vii) that the Holders whose Notes are being purchased only in part will be issued new Notes equal in principal amount to the unpurchased portion of the Notes surrendered; which unpurchased portion must be equal to $1,000 in principal amount or an integral multiple thereof; and
(viii) the instructions a Holder must follow in order to have his Notes purchased in accordance with this Section 1017. 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 in the manner described in Section 1104. Upon completion of any such Asset Sale Offer, the amount of Excess Proceeds shall be reset at zero. The Company shall comply with the requirements of Rule 14e-1 under the Exchange Act and any other securities laws and regulations thereunder to the extent such laws and regulations are applicable in connection with the repurchase of Notes pursuant to an Asset Sale Offer. To the extent that the provisions of any securities laws or regulations conflict with the provisions of this Section 4.10; and1017, the Company shall comply with the applicable securities laws and regulations and shall not be deemed to have breached its obligations under this Indenture.
Appears in 2 contracts
Samples: Indenture (NXS I LLC), Indenture (Amphenol Corp /De/)
Asset Sales. (a) The Company shall will not, and shall will not permit any of its Restricted Subsidiaries to, consummate cause or make an Asset Sale unless Sale, unless:
(i) the Company or the applicable Restricted Subsidiaryany of its Subsidiaries, as the case may be, receives consideration at the time of such Asset Sale at least equal to the fair market value Fair Market Value (as determined at the time of contractually agreeing to such Asset Sale) of the assets sold or otherwise disposed of (as determined in good faith by the Company)of; and
(ii) except in the case of a Permitted Asset Swap, at least 75% of the consideration therefor received by the Company or the Restricted Subsidiarysuch Subsidiaries, as the case may be, from such Asset Sale shall be is in the form of cash or Cash Equivalents; provided that the amount of:
(a1) any liabilities (as shown on the Company’s or such Restricted Subsidiary’s most recent balance sheet or in the footnotes notes thereto, or if incurred or accrued subsequent to the date of such balance sheet, such liabilities that would have been shown on the Company’s or such Restricted Subsidiary’s balance or the footnotes thereto if such incurrence or accrual had taken place on the date of such balance sheet, as determined by the Company) of the Company or any such Restricted Subsidiary (other than liabilities that are by their terms subordinated to the NotesSubordinated Indebtedness) that are assumed by the transferee of any such assets; assets or Equity Interests pursuant to an agreement that releases or indemnifies the Company or such Subsidiary, as the case may be, from further liability (bor are otherwise extinguished in connection with the transactions relating to such Asset Sale);
(2) any securities, notes or other obligations or assets received by the Company or any such Restricted Subsidiary from such transferee that are converted or reasonably expected to be converted by the Company acting in good faith by the Company or such Restricted Subsidiary into cash within 180 days of the receipt thereof or Cash Equivalents (to the extent of the cash or Cash Equivalents received or expected to be received), or by their terms are required to be satisfied for cash or Cash Equivalents (to the extent of the cash or Cash Equivalents received) within one hundred and eighty (180) days of the receipt thereof; and and
(c3) any Designated Non-cash Consideration received by the Company or any of its Restricted Subsidiaries in such Asset Sale having an aggregate fair market valueFair Market Value, taken together with all other Designated Non-cash Consideration received pursuant to this clause (cSection 4.07(a)(ii)(3) after December 14, 2010 that is at that time outstanding, not to exceed the greater of (x) $150 million 100,000,000 and 5(y) 2.50% of Consolidated Total Assets Assets, calculated at the time of the receipt of such Designated Non-cash Consideration (with the fair market value 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 of (a), (b) and (c) above, will be deemed to be cash Cash Equivalents for the purposes of this provision Section 4.07(a)(ii).
(b) Within three hundred and sixty-five (365) days after the later of (x) the date of any Asset Sale and (y) the receipt of any Net Cash Proceeds of such Asset Sale, the Company or such Subsidiary, at its option, may apply the Net Cash Proceeds from such Asset Sale:
(i) to reduce Indebtedness (through a prepayment, repayment or purchase, as applicable) as follows:
(1) Obligations under the New Second Lien Secured Notes and New Third Lien Secured Notes, including by redemption or by purchasing the New Second Lien Secured Notes or New Third Lien Secured Notes, as applicable, through a tender offer, open-market purchases or in privately negotiated transactions;
(2) ABL/FILO Obligations and Obligations under any other Credit Facility to the extent such Obligations were incurred under Section 4.04(b)(i); provided that for Indebtedness consisting of a revolving credit facility for working capital or general corporate purposes there shall be no requirement to correspondingly reduce commitments with respect thereto; or
(3) to the extent such Net Cash Proceeds resulted from an Asset Sale of assets not constituting Collateral, Obligations of a Subsidiary that is not a Subsidiary Guarantor, other than Indebtedness owed to the Company or any Subsidiary Guarantor; or
(ii) to make:
(1) an Investment in any one or more businesses so long as such Investment in any business is in the form of the second paragraph acquisition of Capital Stock and results in the Company or any of its Subsidiaries, as the case may be, owning an amount of the Capital Stock of such business such that it constitutes or continues to constitute a Subsidiary,
(2) capital expenditures; or
(3) acquisitions of, or investments in, other properties or assets; provided that such application of Net Cash Proceeds pursuant to each of Section 4.07(b)(ii)(1), Section 4.07(b)(ii)(2) and Section 4.07(b)(ii)(3) is used or useful in the business of the Company or a Similar Business or replace the businesses, properties and/ or assets that are the subject of such Asset Sale; provided further that the Company may elect to deem expenditures that otherwise would be permissible Investments, capital expenditures or acquisitions of other property or assets within the scope of Section 4.07(b)(ii)(1), Section 4.07(b)(ii)(2) and Section 4.07(b)(ii)(3), as applicable, that occur prior to the receipt of the Net Cash Proceeds from such Asset Sale to have been invested in accordance with this Section 4.07(b)(ii) (it being agreed that such deemed expenditure shall have been made no earlier than the earliest of (x) notice of such Asset Sale, (y) execution of a definitive agreement for such Asset Sale and (z) consummation of such Asset Sale); or
(iii) any combination of Section 4.07(b)(i) and Section 4.07(b)(ii); provided that a binding commitment or letter of intent entered into not later than such 365th day shall be treated as a permitted application of such Net Cash Proceeds from the date of such commitment or letter of intent so long as the Company or such Subsidiary enters into such commitment or letter of intent with the good faith expectation that the Net Cash Proceeds will be applied to satisfy such commitment or letter of intent within the later of such three hundred and sixty-fifth (365th) day and one hundred and eighty (180) days of such commitment or letter of intent (an “Acceptable Commitment”) or, in the event any Acceptable Commitment is later cancelled or terminated for any reason before the Net Cash Proceeds are applied in connection therewith, the Company or such Subsidiary enters into another Acceptable Commitment (a “Second Commitment”) within one hundred and eighty (180) days of such cancellation or termination; provided further that if any Second Commitment is later cancelled or terminated for any reason before such Net Cash Proceeds are applied, then such Net Cash Proceeds shall constitute Excess Proceeds.
(c) Any amount of Net Cash Proceeds from any Asset Sale that are not utilized or applied as provided within the time period set forth in this Section 4.07 will be deemed to constitute “Excess Proceeds.” Notwithstanding the foregoing sentence, any amount of Proceeds offered to Holders pursuant to Section 4.07(b)(ii) in connection with an Asset Sale Offer made at any time after the Asset Sale will be deemed to have been applied as required and will not be deemed to be Excess Proceeds without regard to the extent to which such offer is accepted by the Holders. When the aggregate amount of Excess Proceeds exceeds $93,750,000, the Company will make an open market offer (an “Asset Sale Offer”) to all Holders of New Third Lien Secured Notes and, if required by the terms of any Pari Passu Lien Indebtedness, to all holders of such Pari Passu Lien Indebtedness, to purchase the maximum principal amount of such New Third Lien Secured Notes and Pari Passu Lien Indebtedness, as appropriate, on a pro rata basis, that may be purchased out of the Excess Proceeds, in accordance with the procedures set forth in the Third Lien Indenture and the agreement governing such Pari Passu Lien Indebtedness. The Company will commence an Asset Sale Offer with respect to Excess Proceeds within ten (10) Business Days after the date that Excess Proceeds exceed $93,750,000 by transmitting electronically or by mailing to the Holders the notice required pursuant to the terms of the Third Lien Indenture, with a copy to the Third Lien Trustee or otherwise in accordance with the Applicable Procedures. The Company may satisfy the foregoing obligations with respect to such Net Cash Proceeds from an Asset Sale by making an Asset Sale Offer with respect to such Net Cash Proceeds prior to the expiration of the application period or by electing to make an Asset Sale Offer with respect to such Net Cash Proceeds before the aggregate amount of Excess Proceeds exceeds $93,750,000.
(d) To the extent that the aggregate amount of New Third Lien Secured Notes and other Indebtedness tendered or otherwise surrendered in accordance with the terms of this Section 4.104.07(b) is less than the Excess Proceeds, the Company may use any remaining Excess Proceeds for any purpose not otherwise prohibited by this Third Lien Indenture. If the aggregate principal amount of New Third Lien Secured Notes and Indebtedness tendered or otherwise surrendered by Holders in accordance with the terms of this section exceeds the amount of Excess Proceeds, the Company will select the New Third Lien Secured Notes (and the Company or its agents will select such Pari Passu Lien Indebtedness, if applicable) to be purchased in the manner set forth in Section 4.07(h). Upon completion of any such Asset Sale Offer, the amount of Excess Proceeds will be reset at zero. To the extent the Excess Proceeds exceed the outstanding aggregate principal amount of the New Third Lien Secured Notes (and, if required by the terms thereof, all Pari Passu Lien Indebtedness), the Company need only make an Asset Sale Offer up to the outstanding aggregate principal amount of New Third Lien Secured Notes (and any such Pari Passu Lien Indebtedness), and any additional Excess Proceeds will not be subject to this covenant and will be permitted to be used for any purpose otherwise permitted by this Third Lien Indenture in the Company’s discretion.
(e) 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 such laws or regulations are applicable in connection with the purchase of the New Third Lien Secured Notes pursuant to an Asset Sale Offer. To the extent that the provisions of any securities laws or regulations conflict with the provisions of this Third Lien Indenture, the Company will comply with the applicable securities laws and regulations and will not be deemed to have breached their obligations under this Third Lien Indenture by virtue thereof.
(f) The provisions under this Third Lien Indenture relative to the Company’s obligation to make an offer to repurchase the New Third Lien Secured Notes as a result of an Asset Sale may be waived or modified at any time with the written consent of the Holders of a majority in principal amount of the New Third Lien Secured Notes.
(g) The ABL/FILO Facility limits, and future credit agreements or other agreements to which the Company becomes a party may prohibit or limit, the Company from purchasing any New Third Lien Secured Notes pursuant to an Asset Sale Offer. In the event the Company is prohibited from purchasing the New Third Lien Secured Notes, the Company may seek the consent of their lenders to the purchase of the New Third Lien Secured Notes or attempt to refinance the borrowings that contain such prohibition. If the Company does not obtain such consent or repay such borrowings, they will remain prohibited from purchasing the New Third Lien Secured Notes. In such case, the Company’s failure to purchase tendered New Third Lien Secured Notes would not constitute an Event of Default under this Third Lien Indenture. If more New Third Lien Secured Notes are tendered pursuant to an Asset Sale Offer than the Company is required to purchase, selection of such New Third Lien Secured Notes for purchase will be made in compliance with the requirements of the principal national securities exchange, if any, on which such New Third Lien Secured Notes are listed (but only to the extent that the Third Lien Trustee has been notified in writing of such listing by the Company) or if such New Third Lien Secured Notes are not listed, on a pro rata basis or as nearly a pro rata basis as practicable (with adjustments so that only New Third Lien Secured Notes in denominations of $2,000 or integral multiples of $1,000 in excess thereof), by lot or by such other method as the Third Lien Trustee will deem fair and appropriate (and in such manner as complies with applicable legal requirements, if any); andprovided that the selection of such New Third Lien Secured Notes for purchase will not result in a Holder with a principal amount of such New Third Lien Secured Notes less than the minimum denomination of $2,000. If all of such New Third Lien Secured Notes are in global form, interests in such New Third Lien Secured Notes to be redeemed will be selected for redemption by the Depositary in accordance with the Applicable Procedures. No New Third Lien Secured Note will be repurchased in part if less than the minimum denomination of such New Third Lien Secured Note would be left outstanding.
(h) Notices of an Asset Sale Offer will be delivered or caused to be delivered, or in the case of New Third Lien Secured Notes in global form, delivered or cause to be delivered electronically in accordance with the Applicable Procedures, at least thirty (30) but not more than sixty (60) days before the purchase date to each Holder of New Third Lien Secured Notes at such Holder’s registered address, with a copy to the Third Lien Trustee, or otherwise in accordance with Applicable Procedures. If any New Third Lien Secured Note is to be purchased in part only, any notice of purchase that relates to such New Third Lien Secured Note will state the portion of the principal amount thereof that has been or is to be purchased.
(i) A new New Third Lien Secured Note in principal amount equal to the unpurchased portion of any New Third Lien Secured Note purchased in part will be issued in the name of the Holder thereof upon cancellation of the New Third Lien Secured Note. On and after the purchase date, unless the Company defaults in payment of the purchase price, interest will cease to accrue on the New Third Lien Secured Notes or portions thereof purchased.
Appears in 1 contract
Samples: Third Lien Indenture (Bed Bath & Beyond Canada L.P.)
Asset Sales. The Company shall will not, and shall will not permit any of its Restricted Subsidiaries to, consummate an Asset Sale unless unless:
(i1) the Company (or the applicable Restricted such Subsidiary, as the case may be, ) receives consideration (including by way of relief from, or by any other Person assuming responsibility for, any liabilities, contingent or otherwise) at the time of such the Asset Sale at least equal to the fair market value (as determined at the time of the assets sold or otherwise disposed of (contractually agreeing to such Asset Sale), as determined in good faith by the Company), of the assets or Capital Stock issued or sold or otherwise disposed of; and
(ii2) at least 75% of the consideration received in the Asset Sale by the Company or the Restricted Subsidiary, as the case may be, from such Asset Sale shall be Subsidiary is in the form of cash or Cash Equivalents; provided that . For purposes of clause (2) above, the amount of:
of (ai) any liabilities (as shown on the Company’s or such Restricted the applicable Subsidiary’s most recent balance sheet or in the footnotes theretonotes thereto or, or if incurred or accrued subsequent to the date of such balance sheet, such liabilities that would have been shown reflected on the Company’s consolidated balance sheet or such Restricted Subsidiary’s balance or in the footnotes thereto if such incurrence or accrual had taken place on or prior to the date of such balance sheet, as determined in good faith by the Company) of the Company or any such Restricted Subsidiary (other than liabilities that are by their terms subordinated to the NotesNotes or the Guarantees) that are assumed by the transferee of any such assets; assets and from which the Company and all Subsidiaries have been validly released by all creditors in writing, (bii) any securities, notes or other obligations securities received by the Company or any such Restricted Subsidiary from Subsidiaryfrom such transferee that are converted by the Company or such Restricted Subsidiary into cash within 180 days of the receipt thereof or Cash Equivalents (to the extent of the cash or Cash Equivalents received); ) within 180 days following the closing of such Asset Sale, and (ciii) any Designated Non-cash Non−cash Consideration received by the Company or any of its Restricted Subsidiaries in such Asset Sale having an aggregate fair market valuevalue (as determined in good faith by the Board of Directors of the Company), taken together with all other Designated Non-cash Non−cash Consideration received pursuant to this clause (ciii) after December 14, 2010 that is at that time outstanding, not to exceed the greater of $150 2.5 million and 5% 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 Non−cash Consideration being measured at the time received and without giving effect to subsequent changes in value), shall, in each of (a), (b) and (c) above, shall be deemed to be cash for the purposes of this provision or paragraph and for purposes no other reason. Within 365 days after the receipt of any Net Proceeds from an Asset Sale, the Company (or, if applicable, the Subsidiary) may apply those Net Proceeds at its option:
(1) solely to the extent the assets disposed of in such Asset Sale was ABL Collateral, to reduce obligations, and correspondingly reduce commitments, under the ABL Facility;
(2) to reduce obligations under other Indebtedness of the second 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 or such Guarantor shall so reduce Obligations under Indebtedness that rank pari passu with the Notes or a related Guarantee (other than Secured Indebtedness), it will equally and ratably reduce Obligations under the Notes by making, or causing the Company to make, an offer (in accordance with the procedures set forth below for an Asset Sale Offer (as defined below) to all Holders to purchase at a price equal to 100% of the principal amount thereof, plus accrued and unpaid interest, if any, on the pro rata principal amount of Notes), in each case, other than Indebtedness owed to the Company or an Affiliate of the Company;
(3) solely to the extent the assets disposed of in such Asset Sale were property securing Indebtedness, to reduce obligations under such Secured Indebtedness (and if such Indebtedness is revolving in nature, to correspondingly reduce commitments thereunder);
(4) solely to the extent the assets disposed of in such Asset Sale were assets of a Subsidiary that is not a Guarantor, to reduce Indebtedness of such Subsidiary that is not a Guarantor (other than Indebtedness owed to the Company or an Affiliate of the Company);
(5) 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 Subsidiary owning an amount of the Capital Stock of such business such that such business constitutes a Subsidiary, (B) capital expenditures or (C) an investment in other non-current assets (other than Cash Equivalents, in the case of each of (A), (B) and (C), in each case (x) used or useful in a Permitted Business or (y) to replace the businesses, properties and/or assets that are the subject of such Asset Sale); and/or
(6) any combination of the foregoing. provided that, in the case of clause (5) above, a binding commitment shall be treated as a permitted application of the Net Proceeds from the date of such commitment so long as the Company, or such other Subsidiary enters into such commitment with the good faith expectation that such Net Proceeds will be applied to satisfy such commitment within 180 days of such commitment (an “Acceptable Commitment”); provided further that if any Acceptable Commitment is later cancelled or terminated for any reason before such Net Proceeds are applied, then such Net Proceeds shall constitute Excess Proceeds. Any Net Proceeds from an Asset Sale not applied or invested in accordance with the preceding paragraph within the time periods set forth above shall constitute “Excess Proceeds.” Pending the final application of any Net Proceeds, the Company or the applicable Subsidiary may temporarily reduce revolving credit borrowings or otherwise invest the Net Proceeds in any manner that is not prohibited by this Indenture. When the aggregate amount of Excess Proceeds exceeds $10 million, the Company or the applicable Subsidiary will, within twenty (20) Business Days, make an offer (an “Asset Sale Offer”) to all Holders and holders of Indebtedness that ranks pari passu with the Notes and contains provisions similar to those set forth in this Section 4.18 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 the Notes and such other Indebtedness that ranks pari passu with the Notes that may be purchased out of the Excess Proceeds. The offer price in any Asset Sale Offer will be equal to 100% of the principal amount thereof, plus accrued and unpaid interest, if any, to (but not including) the date of purchase, and will be payable in cash. If any Excess Proceeds remain after consummation of an Asset Sale Offer, the Company or the applicable Subsidiary may use those Excess Proceeds for any purpose not otherwise prohibited by this Indenture. If the aggregate principal amount of Notes tendered into such Asset Sale Offer exceeds the amount of Excess Proceeds, the Notes to be purchased will be selected on a pro rata basis and in accordance with the Applicable Procedures. Upon completion of each Asset Sale Offer, the amount of Excess Proceeds hereunder will be reset at zero. To the extent Excess Proceeds exceed the outstanding aggregate principal amount of the Notes (and, if required by the terms thereof, all Indebtedness that ranks pari passu with the Notes), the Company need only make an Asset Sale Offer up to the outstanding aggregate principal amount of Notes (and any such Indebtedness that ranks pari passu with the Notes), and any additional Excess Proceeds will not be subject to this covenant and will be permitted to be used for any purpose otherwise permitted hereunder in the Company’s discretion. Not later than twenty (20) Business Days after the date upon which the aggregate amount of Excess Proceeds exceeds $10 million, the Company shall deliver to the Trustee an Officer’s Certificate as to (i) the amount of the Excess Proceeds, (ii) the allocation of the Net Proceeds from the Asset Sales pursuant to which such Asset Sale Offer is being made and (iii) the compliance of such allocation with the provisions of this Section 4.10; and4.18. Upon the expiration of the period for which the Asset Sale Offer remains open (the “Offer Period”), the Company shall deliver to the Trustee for cancellation the Notes or portions thereof that have been properly tendered to and are to be accepted by the Company. No later than 11:00 a.m. (New York City time) on the date of purchase, the Company shall deposit with the Trustee (or a Paying Agent, if not the Trustee) the purchase price for the tendered Notes and the Trustee (or a Paying Agent, if not the Trustee) shall, on the date of purchase, mail or deliver payment to each tendering Holder in the amount of the purchase price. In the event that the Excess Proceeds delivered by the Company to the Trustee is greater than the purchase price of the Notes tendered, the Trustee shall deliver the excess to the Company immediately after the expiration of the Offer Period for application in accordance with this Section 4.18. 50 Holders electing to have a Note purchased shall be required to surrender the Note, with the form entitled “Option of Holder to Elect Purchase” attached to the Note duly completed, to the Company at the address specified in the notice at least three Business Days prior to the purchase date. Holders shall be entitled to withdraw their election if the Trustee or the Company receives not later than one Business Day prior to the purchase date, a telegram, telex, facsimile transmission or letter setting forth the name of the Holder, the principal amount of the Note which was delivered by the Holder for purchase and a statement that such Holder is withdrawing his election to have such Note purchased. If at the end of the Offer Period more Notes 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, 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). Notices of an Asset Sale Offer shall be mailed by the Company by first class mail, postage prepaid, or otherwise delivered in accordance with the applicable procedures of DTC. If any Note is to be purchased in part only, any notice of purchase that relates to such Security shall state the portion of the principal amount thereof that is to be purchased. The Asset Sale Offer shall remain open for a period of 20 Business Days following its commencement and no longer, except to the extent that a longer period is required by applicable law. If the date of purchase is on or after a Record Date and on or before the related Interest Payment Date, any accrued and unpaid interest, up to but excluding the date of purchase, 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
Samples: Indenture (BuzzFeed, Inc.)
Asset Sales. The Company (a) MPM shall not, and shall not permit any of its the Restricted Subsidiaries to, consummate cause or make an Asset Sale Sale, unless (ix) MPM or any of the Company or the applicable Restricted SubsidiarySubsidiaries, as the case may be, receives consideration at the time of such Asset Sale at least equal to the fair market value Fair Market Value (as determined in good faith by MPM) of the assets sold or otherwise disposed of of, and (as determined in good faith by the Company); (iiy) at least 75% of the consideration therefor received by the Company MPM or the such Restricted Subsidiary, as the case may be, from such Asset Sale shall be is in the form of cash or Cash Equivalents; provided that the amount of:
(ai) any liabilities (as shown on the CompanyMPM’s or such Restricted Subsidiary’s most recent balance sheet or in the footnotes notes thereto, or if incurred or accrued subsequent to the date of such balance sheet, such liabilities that would have been shown on the Company’s or such Restricted Subsidiary’s balance or the footnotes thereto if such incurrence or accrual had taken place on the date of such balance sheet, as determined by the Company) of the Company MPM or any such Restricted Subsidiary (other than liabilities that are by their terms subordinated to the NotesNotes or any Note Guarantee) that are assumed by the transferee of any such assets; ,
(bii) any securities, notes or other obligations or other securities or assets received by the Company MPM or any such Restricted Subsidiary from such transferee that are converted by the Company MPM or such Restricted Subsidiary into cash within 180 days of the receipt thereof (to the extent of the cash received); and , and
(ciii) any Designated Non-cash Consideration received by the Company MPM or any of its the Restricted Subsidiaries in such Asset Sale having an aggregate fair market valueFair Market Value, taken together with all other Designated Non-cash Consideration received pursuant to this clause (ciii) after December 14, 2010 that is at that time outstanding, not to exceed the greater of $150 million and 53.0% of Total Assets and $70.0 million at the time of the receipt of such Designated Non-cash Consideration (with the fair market value 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 of (a), (b) and (c) above, shall be deemed to be cash Cash Equivalents for the purposes of this provision Section 4.06(a).
(b) Within 365 days after MPM’s or for purposes any Restricted Subsidiary’s receipt of the second paragraph Net Proceeds of any Asset Sale, MPM or such Restricted Subsidiary may apply the Net Proceeds from such Asset Sale, at its option to any one or more of the following:
(i) to repay (A) any First Priority Lien Obligations, (B) Indebtedness of a Restricted Subsidiary that is not a Note Guarantor; (C) the Notes; or (D) Pari Passu Indebtedness (provided that if MPM or any Note Guarantor shall so reduce Obligations under Pari Passu Indebtedness pursuant to this clause (D), MPM shall equally and ratably reduce Obligations under the Notes as provided pursuant to Article III, through open market purchases (provided that such purchases are at or above 100% of the principal amount thereof) and/or by making an offer (in accordance with the procedures set forth below for an Asset Sale Offer) to all Holders to purchase at a purchase price equal to 100% of the principal amount thereof, plus accrued and unpaid interest, if any, the pro rata principal amount of the Notes;
(ii) to make an investment in any one or more businesses (provided that if such investment is in the form of the acquisition of Capital Stock of a Person, such acquisition results in such Person becoming a Restricted Subsidiary of MPM or, if such Person is a Restricted Subsidiary of MPM, in an increase in the percentage ownership of such Person by MPM or any Restricted Subsidiary of MPM), assets, or property or capital expenditures, in each case used or useful in a Similar Business; or
(iii) to make an investment in any one or more businesses (provided that if such investment is in the form of the acquisition of Capital Stock of a Person, such acquisition results in such Person becoming a Restricted Subsidiary of MPM or, if such Person is a Restricted Subsidiary of MPM, in an increase in the percentage ownership of such Person by MPM or any Restricted Subsidiary of MPM), properties or assets that replace the properties and assets that are the subject of such Asset Sale. In the case of Sections 4.06(b)(ii) and (iii), a binding commitment shall be treated as a permitted application of the Net Proceeds from the date of such commitment; provided that in the event such binding commitment is later canceled or terminated for any reason before such Net Proceeds are so applied, MPM or such Restricted Subsidiary may satisfy its obligation as to any Net Proceeds by entering into another binding commitment within nine months of such cancellation or termination of the prior binding commitment; provided, further that MPM or such Restricted Subsidiary may only enter into such a commitment under the foregoing provision one time with respect to each Asset Sale. Pending the final application of any such Net Proceeds, MPM or such Restricted Subsidiary may temporarily reduce Indebtedness under a revolving credit facility, if any, or otherwise invest such Net Proceeds in any manner not otherwise prohibited by this Indenture. Any Net Proceeds from any Asset Sale that are not applied as provided and within the time period set forth in the first sentence of this Section 4.104.06(b) (it being understood that any portion of such Net Proceeds used to make an offer to purchase Notes, as described in clause (i) of this Section 4.06(b), shall be deemed to have been invested whether or not such offer is accepted) shall be deemed to constitute “Excess Proceeds.” When the aggregate amount of Excess Proceeds exceeds $20.0 million, MPM shall make an offer to all Holders of Notes (and, at the option of MPM, to holders of any Pari Passu Indebtedness) (an “Asset Sale Offer”) to purchase the maximum principal amount of Notes (Pari Passu Indebtedness), that is at least $2,000 and an integral multiple of $1,000, that may be purchased out of the Excess Proceeds at an offer price in cash in an amount equal to 100% of the principal amount thereof (or, in the event such Pari Passu Indebtedness was issued with significant original issue discount, 100% of the accreted value thereof), plus accrued and unpaid interest, if any (or, in respect of such Pari Passu Indebtedness, such lesser price, if any, as may be provided for by the terms of such Indebtedness), to the date fixed for the closing of such offer, in accordance with the procedures set forth in this Section 4.06. MPM shall commence an Asset Sale Offer with respect to Excess Proceeds within ten Business Days after the date that Excess Proceeds exceeds $20.0 million by electronically delivering, or mailing by first class mail, the notice required pursuant to the terms of Section 4.06(f), with a copy to the Trustee. To the extent that the aggregate amount of Notes (and such Pari Passu Indebtedness) tendered pursuant to an Asset Sale Offer is less than the Excess Proceeds, MPM may use any remaining Excess Proceeds for general corporate purposes. If the aggregate principal amount of Notes (and such Pari Passu Indebtedness, as applicable) surrendered by holders thereof exceeds the amount of Excess Proceeds, the Trustee shall select the Notes to be purchased in the manner described in Section 4.06(e). Upon completion of any such Asset Sale Offer, the amount of Excess Proceeds shall be reset at zero.
(c) MPM shall comply with the requirements of Rule 14e-l under the Exchange Act and any other securities laws and regulations to the extent such laws or regulations are applicable in connection with the repurchase of the Notes pursuant to an Asset Sale Offer. To the extent that the provisions of any securities laws or regulations conflict with the provisions of this Indenture, MPM shall comply with the applicable securities laws and regulations and shall not be deemed to have breached its obligations described in this Indenture by virtue thereof.
(d) Not later than the date upon which written notice of an Asset Sale Offer is delivered to the Trustee as provided above, MPM shall deliver to the Trustee an Officer’s Certificate as to (i) the amount of the Excess Proceeds, (ii) the allocation of the Net Proceeds from the Asset Sales pursuant to which such Asset Sale Offer is being made and (iii) the compliance of such allocation with the provisions of Section 4.06(b). On such date, MPM shall also irrevocably deposit with the Trustee or with a paying agent (or, if MPM or a Wholly Owned Subsidiary is acting as the Paying Agent, segregate and hold in trust) an amount equal to the Excess Proceeds to be invested in Cash Equivalents, as directed in writing by MPM, and to be held for payment in accordance with the provisions of this Section 4.06. Upon the expiration of the period for which the Asset Sale Offer remains open (the “Offer Period”), MPM shall deliver to the Trustee for cancellation the Notes or portions thereof that have been properly tendered to and are to be accepted by MPM. 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 MPM to the Trustee are greater than the purchase price of the Notes tendered, the Trustee shall deliver the excess to MPM immediately after the expiration of the Offer Period for application in accordance with this Section 4.06.
(e) Holders electing to have a Note purchased shall be required to surrender the Note, with an appropriate form duly completed, to MPM 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 MPM receive not later than one Business Day prior to the purchase date, a telegram, telex, facsimile transmission or letter setting forth the name of the Holder, the principal amount of the Note which was delivered by the Holder for purchase and a statement that such Holder is withdrawing his election to have such Note purchased. If at the end of the Offer Period more Notes (and Pari Passu Indebtedness, as applicable) are tendered pursuant to an Asset Sale Offer than MPM are required to purchase, the principal amount of Notes (and Pari Passu Indebtedness) to be purchased will be determined pro rata based on the principal amounts so tendered and the selection of the actual Notes of each series for purchase will be made by the Trustee on a pro rata basis to the extent practicable; andprovided that no Notes of $2,000 or less shall be purchased in part. Selection of such Pari Passu Indebtedness shall be made pursuant to the terms of such Indebtedness.
(f) Notices of an Asset Sale Offer shall be delivered electronically or mailed by first class mail, postage prepaid, at least 30 but not more than 60 days before the purchase date to each Holder of Notes at such Holder’s registered address. If any Note is to be purchased in part only, any notice of purchase that relates to such Note shall state the portion of the principal amount thereof that has been or is to be purchased.
Appears in 1 contract
Samples: Indenture (Momentive Performance Materials Quartz, Inc.)
Asset Sales. (a) The Company Borrower shall not, and shall not permit any of its Restricted Subsidiaries toto consummate, consummate directly or indirectly, an Asset Sale unless Sale, unless:
(i1) the Company Borrower or the applicable 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 (as determined in good faith by the Company)Borrower) of the assets sold or otherwise disposed of; and
(ii2) except in the case of a Permitted Asset Swap, at least 75% of the consideration therefor received by the Company Borrower or the such Restricted Subsidiary, as the case may be, from such Asset Sale shall be is in the form of cash or Cash Equivalents; provided that the amount of:
(aA) any liabilities (as shown on the CompanyBorrower’s or such Restricted Subsidiary’s most recent balance sheet or in the footnotes thereto, or if incurred or accrued subsequent to ) of the date of such balance sheet, such liabilities that would have been shown on the Company’s Borrower or such Restricted Subsidiary’s balance or the footnotes thereto if such incurrence or accrual had taken place on the date of such balance sheet, as determined by the Company) of the Company or any such Restricted Subsidiary (other than liabilities that are by their terms subordinated to the Notes) Loans or that are owed to the Borrower or an Affiliate of the Borrower, that are assumed by the transferee of any such assets; assets and for which the Borrower and all of its Restricted Subsidiaries have been validly released by all applicable creditors in writing,
(bB) any securities, notes or other obligations securities received by the Company Borrower or any such Restricted Subsidiary from such transferee that are converted by the Company Borrower or such Restricted Subsidiary into cash within 180 days of the receipt thereof (to the extent of the cash received); and ) within 180 days following the closing of such Asset Sale, and
(cC) any Designated Non-cash Cash Consideration received by the Company Borrower or any of its such Restricted Subsidiaries Subsidiary in such Asset Sale having an aggregate fair market value, taken together with all other Designated Non-cash Cash Consideration received pursuant to this clause (cC) after December 14, 2010 that is at that time outstanding, not to exceed (x) prior to the greater Interim Loan Conversion Date, 1.5% of $150 million Total Assets at the time of the receipt of such Designated Non-Cash Consideration and (y) thereafter, 5% of Total Assets at the time of the receipt of such Designated Non-cash Consideration (Consideration, in each case with the fair market value of each item of Designated Non-cash Cash Consideration being measured at the time received and without giving effect to subsequent changes in value), shall, in each of (a), (b) and (c) above, shall be deemed to be cash for the purposes of this provision and for no other purpose.
(b) Within 450 days after the receipt of any Net Asset Sale Proceeds, the Borrower or such Restricted Subsidiary, at its option, may apply such Net Asset Sale Proceeds,
(1) to permanently reduce:
(A) Obligations under Senior Indebtedness which is Secured Indebtedness permitted by this Agreement, and to correspondingly reduce commitments with respect thereto;
(B) Obligations under (i) this Agreement, or (ii) other Senior Indebtedness (and to correspondingly reduce commitments with respect thereto); provided that to the extent the Borrower or such Guarantor reduces or makes an offer to prepay, as applicable, Obligations under Senior Indebtedness other than the Loans, including by making an offer in accordance with the procedures set forth in Section 4.10 of the Senior Refinancing Indenture (such provisions of which are incorporated herein for purposes of this Section 9.8), the second paragraph Borrower shall equally and ratably reduce or make an offer to prepay, as applicable, the Loans at 100% of the principal amount thereof, plus the amount of accrued but unpaid interest, if any, on the amount of the Loans that would otherwise be prepaid;
(C) after the Interim Loan Conversion Date, Obligations under the Existing Notes which have a final maturity date (as in effect on the Closing Date) on or prior to October 15, 2017; provided that, at the time of, and after giving effect to, such repurchase, redemption or defeasance, the aggregate amount of Net Asset Sale Proceeds used to repurchase, redeem or defease Existing Notes pursuant to this subclause (C) following the Closing Date shall not exceed 3.5% of Total Assets at such time; or
(D) Indebtedness of a Restricted Subsidiary that is not a Guarantor, other than Indebtedness owed to the Borrower or another Restricted Subsidiary (or any Affiliate thereof); provided that, if an offer to purchase any Indebtedness of TCEH or any of its Restricted Subsidiaries is made in accordance with the terms of such Indebtedness, the obligation to permanently reduce Indebtedness of a Restricted Subsidiary will be deemed to be satisfied to the extent of the amount of the offer, whether or not accepted by the holders thereof, and no Net Asset Sale Proceeds in the amount of such offer will be deemed to exist following such offer;
(2) to make (a) an Investment in any one or more businesses, provided that such Investment in any business is in the form of the acquisition of Capital Stock and results in the Borrower or another of its Restricted Subsidiaries, as the case may be, owning an amount of the Capital Stock of such business such that it constitutes a Restricted Subsidiary, (b) capital expenditures or (c) acquisitions of other assets, in each of clauses (a) through (c), that are used or useful in a Similar Business; or
(3) to make an Investment in (a) any one or more businesses; provided that such Investment in any business is in the form of the acquisition of Capital Stock and results in the Borrower or another of its Restricted Subsidiaries, as the case may be, owning an amount of the Capital Stock of such business such that it constitutes a Restricted Subsidiary, (b) properties or (c) acquisitions of other assets, in each of clauses (a) through (c), that replace the businesses, properties and/or assets that are the subject of such Asset Sale; provided that, in the case of clauses (2) and (3) above, a binding commitment shall be treated as a permitted application of the Net Asset Sale Proceeds from the date of such commitment so long as the Borrower or such other 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 180 days of such commitment (an “Acceptable Commitment”) (and reinvest within the later of 450 days from the date of receipt of Net Asset Sale Proceeds and 180 days of receipt of such commitment), and, in the event any Acceptable Commitment is later cancelled or terminated for any reason before the Net Asset Sale Proceeds are applied in connection therewith, the Borrower or such Restricted Subsidiary enters into another Acceptable Commitment (a “Second Commitment”) within the later of (a) 180 days of such cancellation or termination or (b) the initial 450-day period; provided, further, that if any Second Commitment is later cancelled or terminated for any reason before such Net Asset Sale Proceeds are applied, then such Net Asset Sale Proceeds shall constitute Excess Proceeds. Notwithstanding the preceding paragraph, in the event that regulatory approval is necessary for an asset or investment, or replacement, repair or restoration on any asset or investment, then the Borrower or any Restricted Subsidiary shall have an additional 365 days to apply the Net Asset Sale Proceeds from such Asset Sale in accordance with the preceding paragraph.
(c) Any Net Asset Sale Proceeds from Asset Sales that are not invested or applied as provided and within the time period set forth in Section 9.8(b) shall be deemed to constitute “Excess Proceeds.” When the aggregate amount of Excess Proceeds exceeds $200,000,000, the Borrower shall make an offer to all Lenders or holders of the Senior Notes, as applicable, and, if required or permitted by the terms of any Senior Indebtedness, to the holders of such Senior Indebtedness (an “Asset Sale Offer”), to purchase the maximum aggregate principal amount of the Loans or Senior Notes, as applicable, and such Senior Indebtedness that is a minimum of $2,000 or an integral multiple of $1,000 in excess thereof that may be purchased out of the Excess Proceeds at an offer price in cash in an amount equal to 100% of the principal amount thereof, plus accrued and unpaid interest, to the date fixed for the closing of such offer, in accordance with the procedures set forth in this Agreement. The Borrower will commence an Asset Sale Offer with respect to Excess Proceeds within 10 Business Days after the date that Excess Proceeds exceed $200,000,000 by mailing the notice required pursuant to the terms of this Agreement or the Senior Refinancing Indenture, as applicable, with a copy to the Administrative Agent. To the extent that the aggregate amount of Loans or Senior Notes, as applicable, and any other Senior Indebtedness tendered pursuant to an Asset Sale Offer is less than the Excess Proceeds, the Borrower may, after the Interim Loan Conversion Date, use any remaining Excess Proceeds for general corporate purposes, subject to other covenants contained in this Agreement or the Senior Refinancing Indenture, as applicable. If the aggregate principal amount of Loans or Senior Notes, as applicable, or the Senior Indebtedness surrendered by such holders thereof exceeds the amount of Excess Proceeds, the Administrative Agent shall select the Loans or Senior Notes, as applicable, and such other Senior Indebtedness to be purchased on a pro rata basis based on the accreted value or principal amount of the Loans or Senior Notes, as applicable, or such Senior Indebtedness which have been accepted for repayment by the applicable Lender. Additionally, the Borrower may, at its option, make an Asset Sale Offer using proceeds from any Asset Sale at any time after consummation of such Asset Sale; provided that such Asset Sale Offer shall be in an aggregate amount of not less than $25,000,000. Upon consummation of such Asset Sale Offer, any Net Asset Sale Proceeds not required to be used to purchase Loans or Senior Notes, as applicable, shall not be deemed Excess Proceeds.
(d) Pending the final application of any Net Asset Sale Proceeds pursuant to this Section 4.10; and9.8, the holder of such Net Asset Sale Proceeds may apply such Net Asset Sale Proceeds temporarily to reduce Indebtedness outstanding under a revolving credit facility or otherwise invest such Net Asset Sale Proceeds in any manner not prohibited by this Agreement.
Appears in 1 contract
Samples: Senior Unsecured Interim Loan Agreement (Energy Future Holdings Corp /TX/)
Asset Sales. (a) The Company shall will not, and shall will not permit any of its Restricted Subsidiaries to, consummate an Asset Sale unless unless:
(i1) the Company (or the applicable its Restricted SubsidiarySubsidiaries, as the case may be, ) receives consideration at the time of such the Asset Sale at least equal to the fair market value Fair Market Value of the assets or Equity Interests issued or sold or otherwise disposed of of;
(as determined in good faith by the Company); (ii2) at least 75% of the consideration received in the Asset Sale by the Company or the its Restricted Subsidiary, as the case may be, from such Asset Sale shall be Subsidiaries is in the form of cash or Cash Equivalents; provided that . For purposes of this clause (2), each of the amount offollowing will be deemed to be Cash Equivalents:
(ai) any liabilities (liabilities, as shown on the Company’s or such Restricted Subsidiary’s most recent balance sheet or in the footnotes thereto, or if incurred or accrued subsequent to the date of such consolidated balance sheet, such liabilities that would have been shown on the Company’s or such Restricted Subsidiary’s balance or the footnotes thereto if such incurrence or accrual had taken place on the date of such balance sheet, as determined by the Company) of the Company or any such Restricted Subsidiary (other than contingent liabilities and liabilities that are by their terms subordinated to the NotesNotes or any Note Guarantee) that are assumed by the transferee of any such assets; assets pursuant to a customary assumption or similar agreement;
(bii) any securities, notes or other obligations received by the Company or any such Restricted Subsidiary from such transferee that are converted by the Company or such any Restricted Subsidiary into cash or Cash Equivalents within 180 days of the receipt thereof (thereof, to the extent of the cash received)or Cash Equivalents received in that conversion; and and
(ciii) any Designated Non-cash Noncash Consideration received by the Company or any of its Restricted Subsidiaries Subsidiary in such Asset Sale having an aggregate fair market valueFair Market Value, taken together with all other Designated Non-cash Noncash Consideration received pursuant to this clause (ciii) after December 14, 2010 that is at that time outstanding, not to exceed the greater of $150 million and 5% of Total Assets at the time of the receipt of such Designated Non-cash Consideration (2.5 million, with the fair market value Fair Market Value of each item of Designated Non-cash Noncash 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 any Asset Sale or a Casualty or Condemnation Event in which Net Proceeds are received in respect of the condemnation, destruction, damage or loss of any Collateral, the Company or any Restricted Subsidiary may apply those Net Proceeds at its option:
(1) to permanently repay (and, if the Indebtedness repaid is revolving credit Indebtedness, to correspondingly permanently reduce commitments with respect thereto) (A) Senior Lien Obligations or any Indebtedness secured by Liens permitted under this Indenture, which Liens rank higher in priority than the Note Liens or (B) to the extent that assets sold in an Asset Sale are held by a Restricted Subsidiary that is not a Guarantor and the Net Proceeds do not constitute Collateral, Indebtedness of such Restricted Subsidiary that is not a Guarantor; or
(2) to (x) make an Investment in any one or more businesses (provided that if such Investment is in the form of the acquisition of Capital Stock of a Person, such acquisition results in such Person becoming a Guarantor), shallor (y) acquire long-term assets or other properties (including capital expenditures), in each of case (a), ) used or useful in a Permitted Business or (b) that replace the properties and assets that are the subject of such Asset Sale or Casualty or Condemnation Event; provided that such business, Capital Stock, assets or property shall be owned by the Company, any Guarantor or, if applicable, the Restricted Subsidiary that sold the assets in the Asset Sale; provided that a binding agreement or commitment shall be treated as a permitted application of Net Proceeds from the date of such commitment so long as the Company or other such Restricted Subsidiary enters into such agreement or commitment with the good faith expectation that such Net Proceeds will be applied to satisfy such commitment within 180 days of such commitment; provided, further, that in the event such binding commitment is later cancelled or terminated for any reason before such Net Proceeds are applied, then such Net Proceeds shall constitute Excess Proceeds unless otherwise applied pursuant to this clause (b) prior to the later of 365-days after the receipt of such Net Proceeds and 30-days after the cancellation or termination of such binding agreement or commitment.
(c) Any Net Proceeds from Asset Sales or a Casualty or Condemnation Event that are not applied or invested as provided in Section 4.15(b) will constitute “Excess Proceeds”; provided, that the first $50 million of Net Proceeds received from Asset Sales during the first 270 days after the Issue Date (“Liquidity Proceeds”) shall be excluded from the definition of Excess Proceeds. When the aggregate amount of Excess Proceeds exceeds $10.0 million, within 30 days thereof, the Company will make an offer (a “Net Proceeds Offer”) to all holders of Notes and other Permitted Additional Pari Passu Obligations containing provisions similar to those set forth in this Section 4.15 with respect to asset sales, casualties or condemnations to purchase the maximum principal amount of Notes and other Permitted Additional Pari Passu Obligations (plus all accrued and unpaid interest) after deducting the amount of all fees and expenses, including premiums, incurred in connection therewith that may be purchased out of the Excess Proceeds by mailing, or delivering electronically if held by DTC, the notice required pursuant to the terms of this Section 4.15(h), with a copy to the Trustee. The offer price in any Net Proceeds Offer (the “Net Proceeds Offer Price”) will be equal to 100% of the principal amount, plus accrued and unpaid interest, if any, to, but not including, the date of purchase, and will be payable in cash. Pending the application of any Net Proceeds under this Section 4.15, the Company or any of its Restricted Subsidiaries may temporarily reduce revolving credit borrowings under the Senior Credit Agreement or such Net Proceeds shall be held as Collateral.
(d) If any Excess Proceeds remain after consummation of a Net Proceeds 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 Permitted Additional Pari Passu Obligations tendered in such Net Proceeds Offer exceeds the amount of Excess Proceeds, the Trustee will select the Notes, and the Company or its agent shall select the other Permitted Additional Pari Passu Obligations, as the case may be, to be purchased on a pro rata basis with such adjustments as may be needed so that only Notes in minimum amounts of $1,000 and integral multiples of $1,000 (so long as the remaining portion of each Note to be repurchased in part equals $2,000 or an integral multiple of $1,000 in excess thereof) will be purchased. Upon completion of each Net Proceeds Offer, the amount of Excess Proceeds will be reset at zero. If the Company makes a Net Proceeds Offer prior to the deadline specified in clause (b) above, with respect to any Net Proceeds, the Company’s obligations with respect to such Net Proceeds under this covenant shall be deemed satisfied after completion of such Net Proceeds Offer.
(e) The Company will comply with the requirements of Rule 14e-1 under the Exchange Act and any other securities laws and regulations thereunder to the extent those laws and regulations are applicable in connection with each repurchase of Notes pursuant to a Net Proceeds Offer. To the extent that the provisions of any securities laws or regulations conflict with this Section 4.15, the Company will comply with the applicable securities laws and regulations and will not be deemed to be cash for have breached its obligations under this Section 4.15 by virtue of such compliance.
(f) Not later than the purposes date upon which written notice of this provision or for purposes an Net Proceeds 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 second paragraph Excess Proceeds, (ii) the allocation of the Net Proceeds from the Asset Sales or Casualty or Condemnation Event pursuant to which such Net Proceeds Offer is being made and (iii) the compliance of such allocation with the provisions of Section 4.15(b). On such date, the Company shall also irrevocably deposit with the Trustee (or, if the Trustee is not the Paying Agent, the Paying Agent) an amount equal to the Excess Proceeds to be invested in Cash Equivalents, as directed in writing by the Company and to be held for payment in accordance with the provisions of this Section 4.10; and4.15. Upon the expiration of the period for which the Net Proceeds 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, if the Trustee is not the Paying Agent, the Paying Agent) 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 (or, if the Trustee is not the Paying Agent, the Paying Agent) are greater than the purchase price of the Notes tendered, the Trustee shall deliver the excess to the Company immediately after the expiration of the Offer Period for application in accordance with this Section 4.15.
(g) Holders electing to have a Note purchased shall be required to surrender such Note, with an appropriate form duly completed, to the Issuers 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 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.
(h) Notices of a Net Proceeds Offer shall be mailed by the Company by first class mail, postage prepaid, or delivered electronically if held by the Depository, at least 30 but not more than 60 days before the purchase date to each holder of Notes at such Holder’s registered address. If any Note is to be purchased in part only, any notice of purchase that relates to such Note shall state the portion of the principal amount thereof that has been or is to be purchased.
(i) Notwithstanding anything to the contrary in this Section 4.15, the Company will not, and will not permit any of its Restricted Subsidiaries to, consummate an Asset Sale consisting of, in whole or in part, any Equity Interests of a Guarantor (including any debt security that is convertible into, or exchangeable for, Equity Interest of a Guarantor), other than an Asset Sale consisting of all of the Equity Interests of such Guarantor.
Appears in 1 contract
Samples: Indenture (Layne Christensen Co)
Asset Sales. The Company shall notNo Borrower will, and shall not nor will permit any of its Restricted respective Subsidiaries to, consummate make or permit any Disposition (whether in one or a related series of transactions) of any property or assets (other than cash and cash equivalents) or enter into any agreement to do so, except:
(a) Dispositions of inventory in the ordinary course of business;
(b) Dispositions of assets, properties or businesses to any Borrower or any of its respective Wholly Owned Subsidiaries that are Obligors and Dispositions of assets, properties or businesses to any Subsidiary that is not an Asset Sale unless Obligor by any Subsidiary that is not an Obligor;
(c) Dispositions of equipment and other property which is obsolete, worn out or no longer used in or useful to such Person’s business, all in the ordinary course of business;
(d) Dispositions occurring as the result of a casualty event, condemnation or expropriation;
(e) any Disposition (excluding any Disposition consisting of any Equity Interest in any of the Subsidiaries of the Parent) if (i) 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 therefor is not less than the fair market value of the assets sold or otherwise disposed of related asset (as determined in good faith by the Company); a Financial Officer) and (ii) at least 75% after giving effect thereto, the aggregate fair market value of the consideration received by the Company or the Restricted Subsidiary, assets 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 liabilities (as shown on the Company’s or such Restricted Subsidiary’s most recent balance sheet or in the footnotes thereto, or if incurred or accrued subsequent to the date of such balance sheet, such liabilities that would have been shown on the Company’s or such Restricted Subsidiary’s balance or the footnotes thereto if such incurrence or accrual had taken place on the date of such balance sheet, as reasonably determined by the Company) Parent disposed of the Company or any such Restricted Subsidiary (other than liabilities that are by their terms subordinated to the Notes) that are assumed by the transferee of any such assets; (b) any securities, notes or other obligations received by the Company or any such Restricted Subsidiary from such transferee that are converted by the Company or such Restricted Subsidiary into cash within 180 days of the receipt thereof (to the extent of the cash received); and (c) any Designated Non-cash 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 Non-cash Consideration received Dispositions pursuant to this clause (ce) after December 14would not exceed $5,000,000 during any fiscal year and $10,000,000 in the aggregate during the term hereof; provided that the consideration for any Disposition shall consist of at least 75% cash or cash equivalents payable at closing or notes, 2010 to the extent permitted under Section 6.05;
(f) Dispositions by any Domestic Subsidiary of its assets to another Domestic Subsidiary that is at a Wholly Owned Subsidiary, and Dispositions by any Foreign Subsidiary of its assets to another Foreign Subsidiary that time outstanding, not to exceed is a Wholly Owned Subsidiary;
(g) Dispositions of delinquent accounts receivable in the greater ordinary course of $150 million and 5% 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, in each of (a), (b) and (c) above, be deemed to be cash for the purposes of this provision or business for purposes of collection only (and not for the second paragraph purpose of any bulk sale or securitization transaction);
(h) the surrender of contractual rights or the settlement, release or surrender of any contract, tort or other litigation claims in the ordinary course of business;
(i) the abandonment or Disposition of Intellectual Property or other proprietary rights that are, in the reasonable business judgment of the Parent, no longer practicable to maintain or useful in the conduct of the business of any Borrower or any of its Subsidiaries;
(j) Dispositions permitted by Section 6.03;
(k) Dispositions of Indebtedness from the Parent to a Subsidiary thereof that is an Obligor or from a Subsidiary of the Parent that is an Obligor to the Parent or another Subsidiary thereof that is an Obligor in exchange for, upon conversion for, or in contribution in respect of, Equity Interests in such Subsidiary of the Parent in connection with the capitalization or recapitalization from time to time of any such Subsidiary and Dispositions of Indebtedness from a Subsidiary that is not an Obligor to another Subsidiary that is not an Obligor in exchange for, upon conversion for, or contribution in respect of, Equity Interests in such Subsidiary that is not an Obligor in connection with the capitalization or recapitalization from time to time of any such Subsidiary;
(l) payment of Restricted Payments permitted by Section 6.07;
(m) Dispositions of Permitted Investments; and
(n) any agreement to do any of the foregoing matters described in clauses (a) through (m) of this Section 4.10; andSection.
Appears in 1 contract
Asset Sales. The Company shall not, and shall not permit any of its Restricted Subsidiaries to, consummate an Asset Sale unless (i) 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 (as determined in good faith by the Company); (ii) solely with respect to any Asset Sale or series of related Asset Sales for which the Company and its Restricted Subsidiaries receive aggregate consideration in excess of $50.0 million, at least 75% of the consideration received 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 liabilities (as shown on the Company’s or such Restricted Subsidiary’s most recent balance sheet or in the footnotes thereto, or if incurred or accrued subsequent to the date of such balance sheet, such liabilities that would have been shown on the Company’s or such Restricted Subsidiary’s balance sheet or the footnotes thereto if such incurrence or accrual had taken place on the date of such balance sheet, as determined by the Company) of the Company or any such Restricted Subsidiary (other than liabilities that are by their terms subordinated to the Notes) that are assumed by the transferee of any such assets; (b) any securities, notes or other obligations received by the Company or any such Restricted Subsidiary from such transferee that are converted by the Company or such Restricted Subsidiary into cash within 180 days of the receipt thereof (to the extent of the cash received); and (c) any Designated Non-cash 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 Non-cash Consideration received pursuant to this clause (c) after December 14, 2010 that is at that time outstanding, not to exceed the greater of $150 million and 5% 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, in each of (a), (b) and (c) above, be deemed to be cash for the purposes of this provision or for purposes of the second paragraph of this Section 4.10; and (iii) 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 545 days of receipt thereof either
(A) to prepay any Senior Debt or Indebtedness of a Restricted Subsidiary that is not a Guarantor and, in the case of any such Indebtedness under any revolving credit facility, effect a corresponding reduction in the availability under such revolving credit facility (or effect a permanent reduction in the availability under such revolving credit facility regardless of the fact that no prepayment is required in order to do so (in which case no prepayment should be required)),
(B) to reinvest in Productive Assets (provided that this requirement shall be deemed satisfied if the Company or such Restricted Subsidiary, by the end of such 545-day period, has entered into a binding agreement under which it is contractually committed to reinvest in Productive Assets, and such investment is consummated within 120 days from the date on which such binding agreement is entered into, and, with respect to the amount of such investment, the reference to the 546th day after an Asset Sale in the second following sentence shall be deemed to be a reference to the 121st day after the date on which such binding agreement is entered into (but only if such 121st day occurs later than such 546th day)) or
(C) a combination of prepayment and investment permitted by the foregoing clauses (iii)(A) and (iii)(B). Pending the final application of any such Net Cash Proceeds, the Company or such Restricted Subsidiary may temporarily reduce Indebtedness under a revolving credit facility, if any, or otherwise invest such Net Cash Proceeds in Cash Equivalents. On the 546th day after an Asset Sale or such earlier date, if any, as the Board of Directors of the Company or of such Restricted Subsidiary determines by Board Resolution not to apply the Net Cash Proceeds relating to such Asset Sale as set forth in clauses (iii)(A), (iii)(B) and (iii)(C) of the next preceding sentence (each, a “Net Proceeds Offer Trigger Date”), 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 (iii)(A), (iii)(B) and (iii)(C) of the next preceding sentence (each a “Net Proceeds Offer Amount”) shall be applied by the Company or such Restricted Subsidiary to make an offer to purchase (the “Net Proceeds Offer”) on a date not less than 30 nor more than 60 days following the applicable Net Proceeds Offer Trigger Date, from all Holders and holders of any other Senior Subordinated Debt of the Company or a Restricted Subsidiary of the Company requiring the making of such an offer, on a pro rata basis, the maximum amount of Notes and such other Senior Subordinated Debt that may be purchased with the Net Proceeds Offer Amount at a price equal to 100% of their principal amount (or, in the event such other Senior Subordinated Debt was issued with significant original issue discount, 100% of the accreted value thereof), plus accrued and unpaid interest thereon, if any, to the date of purchase (or, in respect of such other Senior Subordinated Debt, such lesser price, if any, as may be provided for by the terms of such Senior Subordinated Debt); provided, however, that if at any time any non-cash consideration (including any Designated 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 converted into or sold or otherwise disposed of for cash (other than interest received with respect to any such non-cash consideration), then such conversion or disposition shall be deemed to constitute an Asset Sale hereunder and the Net Cash Proceeds thereof shall be applied in accordance with this Section 4.10. Notwithstanding the foregoing, if a Net Proceeds Offer Amount is less than $40.0 million, the application of the Net Cash Proceeds constituting such Net Proceeds Offer Amount to a Net Proceeds Offer may be deferred until such time as such Net Proceeds Offer Amount plus the aggregate amount of all Net Proceeds Offer Amounts arising subsequent to the Net Proceeds Offer Trigger Date relating to such initial Net Proceeds Offer Amount from all Asset Sales by the Company and its Restricted Subsidiaries aggregates to at least $40.0 million, at which time the Company or such Restricted Subsidiary shall apply all Net Cash Proceeds constituting all Net Proceeds Offer Amounts that have been so deferred to make a Net Proceeds Offer (the first date the aggregate of all such deferred Net Proceeds Offer Amounts is equal to $40.0 million or more shall be deemed to be a Net Proceeds Offer Trigger Date). Notwithstanding the immediately preceding paragraph, the Company and its Restricted Subsidiaries shall be permitted to consummate an Asset Sale without complying with such paragraph to the extent that: (i) at least 75% of the consideration for such Asset Sale constitutes Productive Assets, cash, Cash Equivalents and/or Marketable Securities; and (ii) such Asset Sale is for fair market value (as determined in good faith by the Company); provided that any consideration consisting of cash, Cash Equivalents and/or Marketable Securities received by the Company or any of its Restricted Subsidiaries in connection with any Asset Sale permitted to be consummated under this paragraph shall constitute Net Cash Proceeds subject to the provisions of the preceding paragraph. Notice of each Net Proceeds Offer will be sent to DTC, in the case of Global Notes, or mailed to the record Holders as shown on the register of Holders, in the case of certificated notes, 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 Section 3.09 hereof. To the extent that the aggregate amount of Notes and other Senior Subordinated Debt tendered pursuant to a Net Proceeds Offer is less than the Net Proceeds Offer Amount, the Company may use any remaining Net Proceeds Offer Amount for general corporate purposes or for any other purpose not prohibited by this Indenture. Upon completion of any such Net Proceeds Offer, the Net Proceeds Offer Amount shall be reset at zero. The Company shall comply with the requirements of Rule 14e-1 under the Exchange Act and any other securities laws and regulations thereunder to the extent such laws and regulations are applicable in connection with the repurchase of Notes pursuant to a Net Proceeds Offer. To the extent that the provisions of any securities laws or regulations conflict with the provisions of this Section 4.10, the Company shall comply with the applicable securities laws and regulations and shall not be deemed to have breached its obligations under this Section 4.10 by virtue thereof.
Appears in 1 contract
Samples: Indenture (TransDigm Group INC)
Asset Sales. (a) The Company shall will not, and shall will not permit any of its Restricted Subsidiaries to, consummate an make any Asset Sale unless (except with respect to an Event of Loss) unless:
(i) 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 Fair Market Value of the assets or Equity Interests issued or sold or otherwise disposed of (as determined in good faith by the Company)of; and
(ii) at least 75% of the consideration therefor received by the Company or the such Restricted Subsidiary, as the case may be, from such Asset Sale shall be Subsidiary is in the form of cash or Cash Equivalents; provided that the amount of:
(a1) any liabilities (as shown on the Company’s or such Restricted Subsidiary’s most recent balance sheet or in the footnotes thereto, or if incurred or accrued subsequent to the date of such balance sheet, such liabilities that would have been shown on the Company’s or such Restricted Subsidiary’s balance or the footnotes thereto if such incurrence or accrual had taken place on the date of such balance sheet, as determined by the Company) of the Company or any such Restricted Subsidiary of the Company (other than contingent liabilities and liabilities that are by their terms subordinated to the NotesNotes or any Notes Guarantee thereof) that are assumed by the transferee of any such assets; assets and with respect to which the Company or such Restricted Subsidiary is unconditionally released from further liability;
(b2) (A) 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 within 180 days of the receipt thereof or Cash Equivalents (to the extent of the cash received); or Cash Equivalents received in that conversion) and (cB) any Designated Non-cash Consideration received accounts receivable of a business retained by the Company or any of its Restricted Subsidiaries Subsidiaries, as the case may be, following the sale of such business that (i) are not past due more than 30 days and (ii) do not have a payment date greater than 90 days from the date of the invoices creating such accounts receivable; and
(3) any Designated Non-Cash Consideration received by the Company or any such Restricted Subsidiary in such Asset Sale having an aggregate fair market value, taken together with all other Designated Non-cash Consideration received pursuant to this clause (c) after December 14, 2010 Sale; provided that is at that time outstanding, not to exceed the greater of $150 million and 5% of Total Assets at the time of the receipt of such Designated Non-cash Cash Consideration, the aggregate Fair Market Value of all Designated Non-Cash Consideration (with the fair market value Fair Market Value of each item of Designated Non-cash Cash Consideration being measured at the time received and without giving effect to subsequent changes in value), shall, less the amount of Net Proceeds previously realized in each cash or Cash Equivalents from the sale of previously received Designated Non-Cash Consideration is less than the greater of (a), (bi) $40.0 million and (cii) above13.75% of Consolidated Cash Flow of the Company and its Restricted Subsidiaries for the applicable Reference Period then most recently ended at the time of such Asset Sale, will be deemed to be cash for the purposes of this provision Section 5.10.
(b) Within 365 days after the receipt of any Net Proceeds from an Asset Sale by the Company or for purposes a Restricted Subsidiary of the second Company, the Company or such Restricted Subsidiary may apply such Net Proceeds at its option:
(i) to permanently reduce Indebtedness under the Credit Facilities (and to correspondingly reduce commitments with respect thereto);
(ii) with respect to Asset Sales of assets of a Restricted Subsidiary of the Company that is not a Guarantor, to permanently reduce Indebtedness of a Restricted Subsidiary of the Company that is not a Guarantor (and to correspondingly reduce commitments with respect thereto), other than Indebtedness owed to the Company or another Subsidiary of the Company;
(iii) to the extent the Asset Sale constituted the sale of consumer loans, or other loans generated through the conduct of Similar Businesses, to the making of advances and the extension of credit to customers in the ordinary course of business consistent with past practice that are either (A) recorded as accounts receivable or consumer loans on the consolidated balance sheet of the Company or (B) consumer loans the making of which are facilitated by the Company or a Restricted Subsidiary acting as a credit services organization or similar services provider in an amount no greater than the cash used to cash collateralize or repurchase such loans; and/or
(iv) to the making of a capital expenditure or the acquisition of a controlling interest in another business or other assets, in each case, that are used or useful in a Similar Business or that replace the assets that are the subject of such Asset Sale; provided, however, that if the Company or any Restricted Subsidiary contractually commits within such 365-day period to apply such Net Proceeds within 180 days of such contractual commitment in accordance with any of the above clauses (i) through (iv), and such Net Proceeds are subsequently applied as contemplated in such contractual commitment, then the requirement for application of Net Proceeds set forth in this clause (b) shall be considered satisfied.
(c) Pending the final application of any such Net Proceeds, the Company or a Restricted Subsidiary of the Company may temporarily reduce Indebtedness under the Credit Facilities or otherwise invest such Net Proceeds in any manner that is not prohibited by this Indenture.
(d) Any Net Proceeds from Asset Sales that are not applied or invested (by election or as a result of the passage of time) as provided in the first sentence of the preceding paragraph will be deemed to constitute “Excess Proceeds.” When the aggregate amount of Excess Proceeds exceeds $20.0 million, the Company will be required to make an offer (an “Asset Sale Offer”) to all holders of Notes and all holders of Pari Passu Indebtedness evidenced or governed by Pari Passu Payment Lien Documents containing provisions similar to those set forth in this Indenture to purchase from such holders on a ratable basis the maximum principal amount of Notes and such Pari Passu Indebtedness that may be purchased out of the Excess Proceeds. The offer price for such Asset Sale Offer shall be an amount in cash equal to 100% of the principal amount of the Notes and such Pari Passu Indebtedness (or, in the case of Pari Passu Indebtedness issued with original issue discount, 100% of the accreted value thereof), plus accrued and unpaid interest to the date of purchase, in accordance with the procedures set forth in this Indenture. To the extent that the aggregate amount of Notes and Pari Passu Indebtedness tendered pursuant to an Asset Sale Offer is less than the Excess Proceeds, the Company and its Restricted Subsidiaries may use any remaining Excess Proceeds for any purpose not otherwise prohibited by this Indenture. If the aggregate principal amount of Notes and Pari Passu Indebtedness surrendered by holders thereof exceeds the amount of the Excess Proceeds, the Trustee will select the Notes and the applicable agent or representative of the holders of such Pari Passu Indebtedness or the Company will select such Pari Passu Indebtedness to be purchased on a pro rata basis based upon the principal amount of Notes tendered and the principal amount or accreted value, as applicable, of such Pari Passu Indebtedness tendered (subject to adjustments so that no Notes in an unauthorized denomination are repurchased in part). Upon completion of such offer to purchase, the amount of Excess Proceeds shall be reset at zero. Notes (or portions thereof) purchased pursuant to an Asset Sale Offer will be cancelled and may not be reissued.
(e) The Company will comply, to the extent applicable, with the requirements of Section 14(e) of, and Rule 14e-1 under, the Exchange Act and any other securities laws and regulations thereunder in connection with the repurchase of the Notes as a result of an Asset Sale. To the extent that the provisions of any securities laws or regulations conflict with the provisions of this Indenture (including Section 4.10; and3.09), the Company will comply with the applicable securities laws and regulations and shall not be deemed to have breached its obligations under this Indenture by virtue of its compliance with such securities laws or regulations.
Appears in 1 contract
Asset Sales. The Company shall not, and shall not permit any of its Restricted Subsidiaries to, consummate an make any Asset Sale unless Sale, except:
(i) sales of inventory in the Company ordinary course of business;
(ii) sales or other dispositions of Cash Equivalents;
(iii) sales, assignments, transfers or dispositions of accounts in the applicable Restricted Subsidiary, as ordinary course of business for purposes of collection;
(iv) sales of assets to the case may be, receives consideration at extent that the time aggregate value of such Asset Sale assets sold in any single transaction or related series of transactions is equal to $1,000,000 or less; provided that the consideration received for such assets is in an amount at least equal to the fair market value thereof;
(v) dispositions of obsolete, worn out or surplus property or property no longer useful in the business of Company and its Subsidiaries in the ordinary course of business;
(vi) Asset Sales having a fair market value not in excess of $5,000,000 in any Fiscal Year; provided that (a) the consideration received for such assets sold or otherwise disposed of (as determined shall be in good faith by an amount at least equal to the Company)fair market value thereof; (iib) at least 7580% 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 Cash or Cash Equivalents; (c) no Potential Event of Default or Event of Default shall have occurred or be continuing after giving effect thereto; and (d) the proceeds of such Asset Sales shall be applied as required by subsection 2.4B(iii)(a) or subsection 2.4D;
(vii) in order to resolve disputes that occur in the ordinary course of business, Company and its Subsidiaries may discount or otherwise compromise for less than the face value thereof, notes or accounts receivable;
(viii) Company or a Subsidiary may sell or dispose of shares of Capital Stock of any of its Subsidiaries in order to qualify members of the Governing Body of the Subsidiary if required by applicable law.
(ix) the Acquisition may occur in accordance with the terms and conditions of the Acquisition Agreement and the Panolam Industries Holdings Merger Agreement;
(x) any Foreign Subsidiary may from time to time sell U.S. Dollar-denominated accounts receivable to Company or a Domestic Subsidiary so long as (1) such accounts receivable are, in the good faith judgment of the management of Company, collectable in accordance with their terms and sold for a purchase price not exceeding the face amount thereof (without giving effect to any write down or write off thereof) and (2) the aggregate uncollected face amount of such accounts receivable purchased by Company or a Subsidiary Guarantor does not exceed $6,000,000 at any time outstanding;
(xi) Assets Sales of tangible property to the extent that (i) such property is exchanged for credit against the purchase price of similar replacement property or (ii) the proceeds of such Assets Sale are promptly applied to the purchase price of such replacement property;
(xii) Asset Sales by Company or any Subsidiary to Company or any Subsidiary (including any Asset Sale effected pursuant to a merger, consolidation, liquidation or dissolution); provided that if the amount of:
transferor of such property is a Loan Party (a) any liabilities (as shown on the Company’s or such Restricted Subsidiary’s most recent balance sheet or in the footnotes thereto, or if incurred or accrued subsequent to the date of such balance sheet, such liabilities that would have been shown on the Company’s or such Restricted Subsidiary’s balance or the footnotes thereto if such incurrence or accrual had taken place on the date of such balance sheet, as determined by the Company) of the Company or any such Restricted Subsidiary (other than liabilities that are by their terms subordinated to the Notes) that are assumed by the transferee of any such assets; thereof must either be a Loan Party or (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 within 180 days of the receipt thereof (to the extent of the cash received); and such transaction constitutes an Investment, such transaction is permitted under subsection 7.3;
(cxiii) any Designated Non-cash Consideration received Asset Sales by the Company or any its Subsidiaries of its Restricted Subsidiaries in such Asset Sale having an aggregate fair market value, taken together with all other Designated Non-cash Consideration received property pursuant to this clause sale-leaseback transactions; provided that (ca) after December 14, 2010 that is at that time outstanding, not to exceed the greater of $150 million and 5% of Total Assets at the time of the receipt of such Designated Non-cash Consideration (with the fair market value of each item all property so disposed of Designated Non-cash Consideration being measured at shall not exceed $5,000,000 from and after the time received Closing Date and without giving effect to subsequent changes in value), shall, in each of (a), (b) the purchase price for such property shall be paid to Company or its Subsidiaries for not less than 75% cash consideration;
(xiv) leases, subleases, licenses or sublicenses of property in the ordinary course of business and which do not materially interfere with the business of Company and its Subsidiaries;
(cxv) above, be deemed transfers of property subject to be cash for the purposes of this provision any casualty or for purposes condemnation or eminent domain (or deed in lieu thereof) upon receipt of the second paragraph Net Insurance/Condemnation Proceeds of this Section 4.10such event;
(xvi) Asset Sales in the ordinary course of business consisting of the abandonment of intellectual property rights which, in the reasonable good faith determination of Company, are not material to the conduct of the business of Company and its Subsidiaries;
(xvii) Asset Sales of Investments in Joint Ventures to the extent required by, or made pursuant to buy/sell arrangements between the joint venture parties set forth in, joint venture arrangements and similar binding arrangements;
(xviii) Asset Sales by any Subsidiary of all or substantially all of its assets (upon voluntary liquidation or otherwise) to Company or to another Subsidiary; provided that (i) if the transferor in such a transaction is a Guarantor, then the transferee must either be Company or a Guarantor or (ii) to the extent constituting an Investment, such Investment must be an Investment permitted by subsection 7.3;
(xix) voluntary terminations of Hedge Agreements; and
(xx) Asset Sales to the extent constituting an Investment permitted by subsection 7.3, a fundamental change permitted by subsection 7.7A (so long as any Asset Sale pursuant to a liquidation permitted pursuant to subsection 7.7A shall be done on a pro rata basis among the equity holders of the applicable Subsidiary), a Restricted Junior Payment permitted by subsection 7.5 or a Lien permitted by subsection 7.2.
Appears in 1 contract
Samples: Credit Agreement (Panolam Industries International Inc)
Asset Sales. (a) The Company Borrower shall not, and shall not permit any of its Restricted Subsidiaries to, consummate cause or make an Asset Sale Sale, unless (ix) the Company Borrower or the applicable any of its Restricted SubsidiarySubsidiaries, as the case may be, receives consideration at the time of such Asset Sale at least equal to the fair market value Fair Market Value (as determined in good faith by the Borrower) of the assets sold or otherwise disposed of and (as determined in good faith by the Company); (iiy) at least 75% of the consideration therefor received by the Company Borrower or the such Restricted Subsidiary, as the case may be, from such Asset Sale shall be is in the form of cash or Cash Equivalents; provided that the amount of:
(ai) any liabilities (as shown on the CompanyBorrower’s or such Restricted Subsidiary’s most recent balance sheet or in the footnotes notes thereto, or if incurred or accrued subsequent to the date of such balance sheet, such liabilities that would have been shown on the Company’s or such Restricted Subsidiary’s balance or the footnotes thereto if such incurrence or accrual had taken place on the date of such balance sheet, as determined by the Company) of the Company Borrower or any such Restricted Subsidiary of the Borrower (other than liabilities that are by their terms subordinated to the NotesLoans) that are assumed by the transferee of any such assets; ,
(bii) any securities, notes or other obligations or other securities or assets received by the Company Borrower or any such Restricted Subsidiary of the Borrower from such transferee that are converted by the Company Borrower or such Restricted Subsidiary of the Borrower into cash within 180 days of the receipt thereof (to the extent of the cash received); and , and
(ciii) any Designated Non-cash Consideration received by the Company Borrower or any of its Restricted Subsidiaries in such Asset Sale having an aggregate fair market valueFair Market Value, taken together with all other Designated Non-cash Consideration received pursuant to this clause (ciii) after December 14, 2010 that is at that time outstanding, not to exceed the greater of $150 million and 56.25% of Total Assets of the Borrower at the time of the receipt of such Designated Non-cash Consideration (with the fair market value 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 of (a), (b) and (c) above, shall be deemed to be cash Cash Equivalents for the purposes of this provision Section 10.4(a).
(b) Within 485 days after the Borrower’s or for purposes any Restricted Subsidiary of the second paragraph Borrower’s receipt of the Net Proceeds of any Asset Sale (or Event of Loss Proceeds), the Borrower or such Restricted Subsidiary of the Borrower may apply the Net Proceeds from such Asset Sale together with any Event of Loss Proceeds, at its option:
(i) to permanently reduce Obligations under Secured Indebtedness or Pari Passu Indebtedness (provided that if the Borrower or any Guarantor shall so reduce Obligations under Pari Passu Indebtedness (other than Pari Passu Indebtedness that is Secured Indebtedness and other than Pari Passu Indebtedness that is Indebtedness represented by the Borrower’s guarantee of Indebtedness of any Restricted Subsidiary of the Borrower), the Borrower shall equally and ratably reduce Obligations under this Agreement if the Loans are then prepayable or, if the Loans may not then be prepaid, by making an offer (in accordance with the procedures set forth below for an Excess Proceeds Offer) to all Holders to purchase at a purchase price equal to 100% of the principal amount thereof, plus accrued and unpaid interest and additional interest, if any, the pro rata principal amount of Loans that would otherwise be prepaid) or Indebtedness of a Restricted Subsidiary that is not a Guarantor, in each case other than Indebtedness owed to the Borrower or an Affiliate of the Borrower; provided that if an offer to purchase any Indebtedness of any of the Borrower or its Restricted Subsidiaries is made in accordance with the terms of such Indebtedness, the obligation to permanently reduce Indebtedness of the Borrower or a Restricted Subsidiary, as the case may be, will be deemed to be satisfied to the extent of the amount of the offer, whether or not accepted by the holders thereof, and no Net Proceeds in the amount of such offer will be deemed to exist following such offer,
(ii) to an investment in any one or more businesses (provided that if such investment is in the form of the acquisition of Capital Stock of a Person, such acquisition results in such Person becoming a Restricted Subsidiary of the Borrower), or capital expenditures or assets, in each case used or useful in a Similar Business, and/or
(iii) to make an investment in any one or more businesses (provided that if such investment is in the form of the acquisition of Capital Stock of a Person, such acquisition results in such Person becoming a Restricted Subsidiary of the Borrower), properties or assets that replace the properties and assets that are the subject of such Asset Sale or Event of Loss; provided that in the case of clauses (ii) and (iii) above, a binding commitment shall be treated as a permitted application of the Net Proceeds from the date of such commitment and, in the event such binding commitment is later canceled or terminated for any reason before such Net Proceeds are so applied, the Borrower or such Restricted Subsidiary enters into another binding commitment within nine months of such cancellation or termination of the prior binding commitment. Pending the final application of any such Net Proceeds (or Event of Loss Proceeds), the Borrower or such Restricted Subsidiary of the Borrower may temporarily reduce Indebtedness under a revolving credit facility, if any, or otherwise invest such Net Proceeds (or Event of Loss Proceeds) in Cash Equivalents or Investment Grade Securities. Any Net Proceeds from any Asset Sale (or Event of Loss Proceeds) that are not applied as provided and within the time period set forth in the first sentence of this Section 4.10; and10.4(b) (it being understood that any portion of such Net Proceeds (or Event of Loss Proceeds) used to make an offer to prepay the Loans, as described in clause (i) above, shall be deemed to have been invested whether or not such offer is accepted) shall be deemed to constitute “Excess Proceeds.” When the aggregate amount of Excess Proceeds exceeds $55.0 million, the Borrower shall make a Prepayment Offer pursuant to Section 5.2 and in accordance with this Section 10.4. Upon completion of any such Excess Proceeds Offer, the amount of Excess Proceeds shall be reset at zero.
Appears in 1 contract
Asset Sales. The Company shall not, and shall not permit any of its Restricted Subsidiaries to, consummate engage in an Asset Sale unless (i) 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 (as determined in good faith by a resolution of the Company); 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 7585% of the consideration therefor received by the Company or the such Restricted Subsidiary, as the case may be, Subsidiary from such Asset Sale shall be is in the form of cash or cash, Cash Equivalents, properties and capital assets to be used by the Company or any Restricted Subsidiary in the Oil and Gas Business or oil and gas properties owned or held by another Person which are to be used in the Oil and Gas Business of the Company or its Restricted Subsidiaries, or any combination thereof (collectively the "cash consideration"); provided PROVIDED that the amount of:
of (ax) any liabilities (as shown on the Company’s 's or such Restricted Subsidiary’s 's most recent balance sheet or in the footnotes thereto, or if incurred or accrued subsequent to the date of such balance sheet, such liabilities that would have been shown on the Company’s or such Restricted Subsidiary’s balance or the footnotes thereto if such incurrence or accrual had taken place on the date of such balance sheet, as determined by the Company) of the Company or any such Restricted Subsidiary (other than contingent liabilities and liabilities that are by their terms subordinated to the NotesSecurities or any guarantee thereof) that are assumed by the transferee of any such assets; assets pursuant to a customary novation agreement that releases the Company or such Restricted Subsidiary from further liability and (by) any securities, notes or other obligations 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 the receipt thereof 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 order or combination, (a) to reduce Senior Debt or 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 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 Designated Non-cash Consideration received by 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 Sales that are not applied as provided in the first sentence of its Restricted Subsidiaries this paragraph shall (after the expiration of the periods specified in this paragraph) be deemed to constitute "Excess Proceeds." When the aggregate amount of Excess Proceeds exceeds $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 cash in an amount equal to, in the case of the Securities, 100% of the principal amount thereof plus accrued and unpaid interest thereon to the date of purchase or, in the case of any other Pari Passu Indebtedness, 100% of the principal amount thereof (or with respect to discount Pari Passu Indebtedness, the accrued value thereof) on the date of purchase, in each case, in accordance with the 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 the 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. If the sum of (i) the aggregate principal amount of Securities surrendered by Holders thereof, and (ii) 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 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 having an aggregate fair market value, taken together with all other Designated Non-cash Consideration received pursuant to this clause (c) after December 14, 2010 that is at that time outstanding, not to exceed the greater of $150 million and 5% of Total Assets at the time of the receipt Offer. Upon completion of such Designated Non-cash Consideration (with the fair market value of each item of Designated Non-cash Consideration being measured Asset Sale Offer, Excess Proceeds shall be reset at the time received and without giving effect to subsequent changes in value), shall, in each of (a), (b) and (c) above, be deemed to be cash for the purposes of this provision or for purposes of the second paragraph of this Section 4.10; andzero.
Appears in 1 contract
Asset Sales. The Company shall not, and shall not permit Effect any of its Restricted Subsidiaries to, consummate an Asset Sale unless except that the following shall be permitted:
(ia) disposition of used, worn out, obsolete or surplus property by any Company in the Company ordinary course of business and the abandonment or other disposition of Intellectual Property that is, in the applicable reasonable judgment of the Borrower, no longer economically practicable to maintain or useful in the conduct of the business of the Companies taken as a whole;
(b) so long as no Default is then continuing or would result therefrom, any other Asset Sale (other than the Equity Interests of any Wholly Owned Subsidiary 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, as the case may be, receives consideration at the time of such Asset Sale at least equal to the becomes a Joint Venture Subsidiary) for fair market value of the assets sold or otherwise disposed of (as determined in good faith by the Company); (ii) value, with at least 75% of the consideration received by the Company or the Restricted Subsidiary, as the case may be, from for all such Asset Sale 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 in the form of cash or Cash Equivalents; provided that the amount of:
deemed to be cash: (ai) any liabilities (as shown on the Company’s or such Restricted SubsidiaryBorrower’s most recent balance sheet provided hereunder or in the footnotes thereto, or if incurred or accrued subsequent to ) of the date of such balance sheet, such liabilities that would have been shown on the Company’s Borrower or such Restricted Subsidiary’s balance or the footnotes thereto if such incurrence or accrual had taken place on the date of such balance sheet, as determined by the Company) of the Company or any such Restricted Subsidiary (other than liabilities that are by their terms subordinated to the Notes) payment in cash of the Obligations, that are assumed by the transferee with respect to the applicable Asset Sale and for which Holdings, the Borrower and all of any such assets; its Restricted Subsidiaries shall have been validly released by all applicable creditors in writing, (bii) any securities, notes or other obligations securities received by the Company Borrower or any such the applicable Restricted Subsidiary from such transferee that are converted by the Company Borrower or such Restricted Subsidiary into cash within 180 days of the receipt thereof (to the extent of the cash received); ) within 180 days following the closing of the applicable Asset Sale, and (ciii) any Designated Nonaggregate non-cash Consideration consideration received by the Company Borrower or any of its the applicable Restricted Subsidiaries in such Asset Sale Subsidiary having an aggregate fair market valuevalue (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, taken together 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 all 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 Designated 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 outstanding Receivables of a Company that is organized in a Non-Principal Jurisdiction subject to a Permitted Factoring Facility pursuant to this Section 6.06(e) at such time, plus (z) the aggregate consideration received by a Company that is organized in a Non-Principal Jurisdiction for Asset Sales permitted under Section 6.06(r) (net of amounts paid by such Company to repurchase the Inventory subject to such Asset Sales) (but in each case excluding any Permitted German Alternative Financing, Permitted Novelis Switzerland Financing and any Permitted Customer Account Financing), shall not exceed the greater of (x) 15% of Consolidated Net Tangible Assets and (y) $750,000,000, and (C) with respect to any such sale, transfer or disposition of Receivables incurred by a Company that is organized in a Non-Loan Party Jurisdiction, the sum of (w) the aggregate outstanding principal amount of the Indebtedness of all Securitization Entities that are organized in a Non-Loan Party Jurisdiction under all Qualified Securitization Transactions under Section 6.01(e), plus (x) the aggregate amount of Indebtedness incurred by a Subsidiary that is organized in a Non-Loan Party Jurisdiction then outstanding under Section 6.01(m), plus (y) the aggregate book value at the time of determination of the then outstanding Receivables of a Company that is organized in a Non-Loan Party Jurisdiction subject to a Permitted Factoring Facility pursuant to this Section 6.06(e) at such time, plus (z) the aggregate consideration received by a Company that is organized in a Non-Loan Party Jurisdiction for Asset Sales permitted under Section 6.06(r) (net of amounts paid by such Company to repurchase the Inventory subject to such Asset Sales) (but in each case excluding any Permitted German Alternative Financing, any Permitted Novelis Switzerland Financing and any Permitted Customer Account Financing), shall not exceed the greater of (x) 15% of Consolidated Net Tangible Assets and (y) $750,000,000;
(f) the sale or disposition of cash Consideration received 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), (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 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 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;
(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 (ci) after December 14, 2010 that is at that time outstanding, shall not to exceed the greater of $150 million and 5(1) 2% of Total 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 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 Borrower formed after the Closing Date to the Borrower or the Subsidiary of the Borrower 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 Holdings), be delivered to the Collateral Agent;
(q) transfers of 100% of the Equity Interests of any Chinese Subsidiary or Korean Subsidiary of Borrower 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) no Default is then continuing or would result therefrom;
(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 such sale, transfer of disposition by a Company that is organized in a Principal Jurisdiction, such transaction is a Permitted German Alternative Financing, (B) with respect to any such sale, transfer or disposition of Receivables incurred by a Company that is organized in a Non-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 this Section 6.01(e), plus (x) the aggregate amount of Indebtedness incurred by a Subsidiary that is organized in a Non-Principal Jurisdiction then outstanding under Section 6.01(m), plus (y) the aggregate book value at the time of determination of the receipt then outstanding Receivables of such Designated a Company that is organized in a Non-cash Consideration Principal Jurisdiction subject to a Permitted Factoring Facility pursuant to Section 6.06(e) at such time, plus (with z) the fair market value of each item of Designated aggregate consideration received by a Company that is organized in a Non-cash Consideration being measured Principal Jurisdiction for Asset Sales permitted under this Section 6.06(r) (net of amounts paid by such Company to repurchase the Inventory subject to such Asset Sales) (but in each case excluding any Permitted German Alternative Financing, any Permitted Novelis Switzerland Financing and any Permitted Customer Account Financing), shall not exceed the greater of (x) 15% of Consolidated Net Tangible Assets and (y) $750,000,000, and (C) with respect to any such sale, transfer or disposition of Receivables incurred by a Company that is organized in a Non-Loan Party Jurisdiction, the sum of (w) the aggregate outstanding principal amount of the Indebtedness of all Securitization Entities that are organized in a Non-Loan Party Jurisdiction under all Qualified Securitization Transactions under this Section 6.01(e), plus (x) the aggregate amount of Indebtedness incurred by a Subsidiary that is organized in a Non-Loan Party Jurisdiction then outstanding under Section 6.01(m), plus (y) the aggregate book value at the time of determination of the then outstanding Receivables of a Company that is organized in a Non-Loan Party Jurisdiction subject to a Permitted Factoring Facility pursuant to Section 6.06(e) at such time, plus (z) the aggregate consideration received by a Company that is organized in a Non-Loan Party Jurisdiction for Asset Sales permitted under this Section 6.06(r) (net of amounts paid by such Company to repurchase the Inventory subject to such Asset Sales) (but in each case excluding any Permitted German Alternative Financing, any Permitted Novelis Switzerland Financing and without giving effect to subsequent changes in valueany Permitted Customer Account Financing), shall, in each shall not exceed the greater of (ax) 15% of Consolidated Net Tangible Assets and (y) $750,000,000; and
(s) Asset Sales of 100% of the Equity Interests of any Chinese Subsidiary of Borrower to a Chinese holding company that is a wholly-owned direct Subsidiary of Borrower; 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 holding company Subsidiary, 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), (b) and (cii) above, be deemed to be cash for the purposes of this provision no Default is then continuing or for purposes of the second paragraph of this Section 4.10; andwould result therefrom.
Appears in 1 contract
Asset Sales. The Company shall (a) Holdings will not, and shall will not permit any of its Restricted Subsidiaries to, consummate an Asset Sale unless unless:
(i1) 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 Holdings (as determined in good faith by the Company); (ii) at least 75% of the consideration received by the Company or the Restricted Subsidiary, as the case may be, from such ) receives consideration at the time of the Asset Sale shall be 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 75.0% of the consideration received in the Asset Sale by Holdings or such Restricted Subsidiary is in the form of cash cash, Cash Equivalents or Cash Equivalents; provided that Replacement Assets. For purposes of this provision, each of the amount offollowing shall be deemed to be cash:
(aA) any liabilities (liabilities, as shown on the Company’s or such Restricted Subsidiary’s Holdings’ most recent balance sheet or in the footnotes thereto, or if incurred or accrued subsequent to the date of such consolidated balance sheet, such liabilities that would have been shown on the Company’s or such Restricted Subsidiary’s balance or the footnotes thereto if such incurrence or accrual had taken place on the date of such balance sheet, as determined by the Company) of the Company Holdings or any such Restricted Subsidiary (other than contingent liabilities and liabilities that are by their terms subordinated to the NotesNotes or any Note Guarantee) that are assumed by the transferee of any such assets; assets or Equity Interests pursuant to a customary novation agreement or transfer agreement that releases Holdings or such Restricted Subsidiary from such liabilities or by operation of law or against which the transferee has granted a full indemnity to Holdings or such Restricted Subsidiary;
(bB) any securities, notes or other obligations received by the Company Holdings or any such Restricted Subsidiary from such transferee that are converted by the Company Holdings or such Restricted Subsidiary into cash Cash Equivalents within 180 days after the date of the receipt thereof such Asset Sale (to the extent of the cash receivedCash Equivalents received in that conversion); and and
(cC) any Designated Non-cash Cash Consideration received by the Company Holdings or any of its Restricted Subsidiaries in such Asset Sale having an aggregate fair market valueaggregated Fair Market Value, taken together with all other Designated Non-cash Consideration Cash consideration received pursuant to this clause (c) after December 14, 2010 that is at that time outstanding, not to exceed the greater of $150 million and 5(x) 5.0% of Total Holdings’ Consolidated Net Assets at the time as of the date or receipt of such Designated Non-cash Cash Consideration and (y) $30.0 million (with the fair market value Fair Market Value of each item of Designated Non-cash Cash Consideration being measured at the time received and without giving effect to subsequent changes in value), shall, in each of (a), .
(b) Within 365 days after the receipt of any Net Proceeds from an Asset Sale, Holdings (or the applicable Restricted Subsidiary, as the case may be) may apply such Net Proceeds at its option:
(1) to repay Senior Debt or Indebtedness of a Restricted Subsidiary of Holdings that is not a Guarantor;
(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 Holdings (provided that (x) a binding agreement to acquire such assets or Capital Stock entered into prior to the 365th day after such Asset Sale will satisfy the foregoing requirements so long as such acquisition is consummated no later than the later of (i) the 365th day after such Asset Sale and (cii) above180 days after the date of such binding agreement and (y) if such acquisition is not consummated within the period set forth in the preceding subclause (x), the Net Proceeds will be deemed to be cash for Excess Proceeds (as defined below));
(3) to make capital expenditures;
(4) to acquire other assets that are not classified as current assets under GAAP and that are used or useful in a Permitted Business provided that (x) a binding agreement to acquire such assets entered into prior to the purposes 365th day after such Asset Sale will satisfy the foregoing requirements so long as such acquisition is consummated no later than the later of (i) the 365th day after such Asset Sale and (ii) 180 days after the date of such binding agreement and (y) if such acquisition is not consummated within the period set forth in the preceding subclause (x), the Net Proceeds will be deemed to be Excess Proceeds; or
(5) make an Asset Sale Offer as described below. Pending the final application of any Net Proceeds, Holdings may temporarily reduce revolving credit borrowings or otherwise invest the Net Proceeds in any manner that is not prohibited by this provision Indenture.
(c) Any Net Proceeds from Asset Sales that are not applied or for purposes of the second invested as provided in paragraph (b) of this Section 4.10; and4.11 will constitute “Excess Proceeds.” When the aggregate amount of Excess Proceeds exceeds $20.0 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 or any Note Guarantee (other than a Note Guarantee by Holdings) containing provisions similar to those set forth in this Section 4.11 and Section 3.09 of 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 using the Excess Proceeds. The offer price in any Asset Sale Offer will be equal to 100.0% of the principal amount of the Notes and such other pari passu Indebtedness plus accrued and unpaid interest and Additional Interest, if any, to but not including the date of purchase, and will be payable in cash. If any Excess Proceeds remain after consummation of an Asset Sale Offer, Holdings may use those Excess Proceeds for any purpose not otherwise prohibited by this Indenture. If the aggregate principal amount of Notes and other pari passu Indebtedness tendered into such Asset Sale Offer exceeds the amount of Excess Proceeds, the Trustee will select the Notes and such other pari passu Indebtedness to be purchased pursuant to Section 3.02. Upon completion of each Asset Sale Offer, the amount of Excess Proceeds will be reset at zero.
(d) The Company will comply with the requirements of Rule 14e-1 under the Exchange Act and any other securities laws and regulations thereunder to the extent such laws and regulations are applicable in connection with each repurchase of Notes pursuant to an Asset Sale Offer. To the extent that the provisions of any securities laws or regulations conflict with the provisions of Section 3.09 hereof or this Section 4.11, 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.
Appears in 1 contract
Samples: Indenture (Dycom Industries Inc)
Asset Sales. (a) The Company Issuer shall not, and shall not permit any of its the Restricted Subsidiaries Parties to, consummate cause or make an Asset Sale Sale, unless (ix) the Company Issuer or any of the applicable Restricted SubsidiaryParties, as the case may be, receives consideration at the time of such Asset Sale at least equal to the fair market value Fair Market Value (as determined in good faith by the Board of Directors of the Issuer) of the assets sold or otherwise disposed of and (as determined in good faith by the Company); (iiy) at least 75% of the consideration therefor received by the Company Issuer or the such Restricted SubsidiaryParty, as the case may be, from such Asset Sale shall be is in the form of cash or Cash Equivalents; provided that the amount of:
(ai) any liabilities (as shown on the CompanyIssuer’s or such Restricted SubsidiaryParty’s most recent balance sheet or in the footnotes thereto, or if incurred or accrued subsequent to the date of such balance sheet, such liabilities that would have been shown on the Company’s or such Restricted Subsidiary’s balance or the footnotes thereto if such incurrence or accrual had taken place on the date of such balance sheet, as determined by the Company) of the Company Issuer or any such Restricted Subsidiary Party (other than liabilities that are by their terms subordinated to the Notes) that are assumed by the transferee of any such assets; , and
(bii) any securities, notes or other obligations or other securities or assets received by the Company Issuer or any such Restricted Subsidiary Party from such transferee that are converted by the Company Issuer or such Restricted Subsidiary Party into cash within 180 90 days of the receipt thereof (to the extent of the cash received); and (c) any Designated Non-cash 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 Non-cash Consideration received pursuant to this clause (c) after December 14, 2010 that is at that time outstanding, not to exceed the greater of $150 million and 5% 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, in each of (a), (b) and (c) above, shall be deemed to be cash Cash Equivalents for the purposes of this provision Section 4.06.
(b) Within 180 days after the receipt by the Issuer or for purposes any Restricted Party of the second paragraph Net Proceeds of any Asset Sale, the Issuer or such Restricted Party must:
(i) apply the Net Proceeds from such Asset Sale to make an investment in any one or more businesses, properties or assets that replace the properties and assets that are the subject of such Asset Sale; provided that (i) the replacement businesses, properties or assets are held by the Issuer or a Restricted Party, (ii) the Fair Market Value of the replacement businesses, properties or assets is greater than or equal to the Fair Market Value as of the Issue Date of the businesses, properties or assets that are the subject of such Asset Sale and (iii) the Fair Market Value of the replacement businesses, properties or assets shall be determined in good faith by the Board of Directors of the Issuer and shall be set forth in an Officers’ Certificate delivered to the Trustee;
(ii) apply the Net Proceeds from such Asset Sale to repay borrowings outstanding under the Credit Agreement and, if the borrowings repaid are revolving Indebtedness, to correspondingly permanently reduce commitments with respect thereto; provided that (i) upon such repayment the Issuer or such Restricted Party must replace the properties and assets that are the subject of such Asset Sale, (ii) the Fair Market Value of the replacement businesses, properties or assets is greater than or equal to the Fair Market Value as of the Issue Date of the businesses, properties or assets that are the subject of such Asset Sale and (iii) the Xxxx Xxxxxx Value of the replacement businesses, properties or assets shall be determined in good faith by the Board of Directors of the Issuer and shall be set forth in an Officers’ Certificate delivered to the Trustee; or
(iii) make an Asset Sale Offer.
(c) Pending the final application of any Net Proceeds from an Asset Sale, the Issuer or such Restricted Party may temporarily reduce Indebtedness under a revolving credit facility, if any, or otherwise invest such Net Proceeds in Cash Equivalents or Investment Grade Securities. Any Net Proceeds from any Asset Sale that are not applied as provided and within the time period set forth in clause (b) of this Section 4.104.06 shall be deemed to constitute “Excess Proceeds.” When the aggregate amount of Excess Proceeds exceeds $10.0 million, the Issuer shall make an offer to all holders of Notes (an “Asset Sale Offer”) to purchase the maximum principal amount of Notes that is an integral multiple of $1,000 that may be purchased out of the Excess Proceeds at an offer price in cash in an amount equal to 100% of the principal amount thereof, to the date fixed for the closing of such offer, in accordance with the procedures set forth in this Indenture. The Issuer shall commence an Asset Sale Offer with respect to Excess Proceeds within ten Business Days after the date that Excess Proceeds exceed $10.0 million by mailing or electronically transmitting the notice required pursuant to the terms of this Indenture, with a copy to the Trustee. To the extent that the aggregate 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 any purpose that is not prohibited by this Indenture. If the aggregate principal amount of Notes surrendered by Holders thereof exceeds the amount of Excess Proceeds, the Trustee shall select the Notes to be purchased in accordance with Section 4.06(f) in the case of Notes. Upon completion of any such Asset Sale Offer, the amount of Excess Proceeds shall be reset at zero.
(d) The Issuer shall comply with the requirements of Rule 14e-1 under the Exchange Act and any other securities laws and regulations to the extent such laws or regulations are applicable in connection with the repurchase of the Notes pursuant to an Asset Sale Offer. To the extent that the provisions of any securities laws or regulations conflict with the provisions of this Indenture, the Issuer shall comply with the applicable securities laws and regulations and shall not be deemed to have breached its obligations described in this Indenture by virtue thereof.
(e) Not later than the date upon which written notice of an Asset Sale Offer is delivered to the Trustee as provided above, the Issuer shall deliver to the Trustee an Officers’ Certificate as to (i) the amount of the Excess Proceeds, (ii) the allocation of the Net Proceeds from the Asset Sales pursuant to which such Asset Sale Offer is being made and (iii) the compliance of such allocation with the provisions of Section 4.06(b) and Section 4.06(c). On such date, the Issuer shall also irrevocably deposit with the Trustee or with a paying agent (or, if a Wholly Owned Restricted Subsidiary of the Issuer is acting as a Paying Agent, segregate and hold in trust) an amount equal to the Excess Proceeds to be invested in Cash Equivalents, as directed in writing by the Issuer, and to be held for payment in accordance with the provisions of this Section 4.06. Upon the expiration of the period for which the Asset Sale Offer remains open (the “Offer Period”), the Issuer shall deliver to the Trustee for cancellation the Notes or portions thereof that have been properly tendered to and are to be accepted by the Issuer. The Trustee (or a Paying Agent, if not the Trustee) shall, on the date of purchase, mail or deliver payment to each tendering Holder in the amount of the purchase price. In the event that the Excess Proceeds delivered by the Issuer to the Trustee is greater than the purchase price of the Notes tendered, the Trustee shall deliver the excess to the Issuer immediately after the expiration of the Offer Period for application in accordance with this Section 4.06.
(f) Holders electing to have a Note purchased shall be required to surrender the Note, with an appropriate form duly completed, to the Issuer at the address specified in the notice at least three Business Days prior to the purchase date. Holders shall be entitled to withdraw their election if the Trustee or the Issuer receive not later than one Business Day prior to the purchase date, a telegram, telex, facsimile transmission or letter setting forth the name of the Holder, the principal amount of the Note which was delivered by the Holder for purchase and a statement that such Holder is withdrawing his election to have such Note purchased. If at the end of the Offer Period more Notes are tendered pursuant to an Asset Sale Offer than the Issuer is required to purchase, the principal amount of the Notes to be purchased shall be determined pro rata based on the principal amounts so tendered and the selection of the actual Notes of each series for purchase shall be made by the Trustee on a pro rata basis to the extent practicable; andprovided, however, that no Notes of $1.00 or less shall be purchased in part.
(g) Notices of an Asset Sale Offer shall be mailed by first class mail, postage prepaid or electronically transmitted, at least 30 but not more than 60 days before the purchase date to each Holder at such Holder’s registered address and to the Trustee. If any Note is to be purchased in part only, any notice of purchase that relates to such Note shall state the portion of the principal amount thereof that has been or is to be purchased.
(h) A new Note in principal amount equal to the unpurchased portion of any Note purchased in part shall be issued in the name of the Holder thereof upon cancellation of the original Note. On and after the purchase date, unless the Issuer defaults in payment of the purchase price, interest shall cease to accrue on Notes or portions thereof purchased.
Appears in 1 contract
Samples: Indenture (Affinion Group, Inc.)
Asset Sales. (a) The Company shall not, and shall not permit any of its Restricted Subsidiaries to, consummate an any Asset Sale unless unless:
(i1) the Company or the applicable 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 (such fair market value to be determined as of the date of contractually agreeing to such Asset Sale) of the Capital Stock, property or assets sold or otherwise disposed in such Asset Sale;
(2) such fair market value (including the fair market value of (as all such non-cash consideration) shall be determined in good faith by an Officer of the Company); and
(ii3) at least 75% of the consideration from such Asset Sale, together with all Asset Sales by the Company and its Restricted Subsidiaries since the Issue Date (on a cumulative basis), received by the Company or the such Restricted Subsidiary, as the case may be, from such Asset Sale shall be is in the form of cash or Cash Equivalents; provided that the amount of:following shall be deemed to be cash for purpose of this provision and for no other purpose (including specifically not for purposes of the definition of “Net Cash Proceeds”):
(a) i. any liabilities (as shown on including contingent liabilities), reflected in the Company’s or such Restricted Subsidiary’s most recent balance sheet delivered in accordance with Section 4.03 (or in the footnotes thereto), or if incurred or accrued subsequent to the date of such balance sheet, such liabilities that would have been shown on the Company’s or such Restricted Subsidiary’s balance or the footnotes thereto if such incurrence or accrual had taken place on the date of such balance sheet, as determined by the Company) of the Company or any such Restricted Subsidiary (other than liabilities that are by their terms subordinated in right of payment to the NotesNotes or the Subsidiary Guarantees) that are assumed by the transferee of any such Capital Stock, property or assets; (b) ;
ii. any securities, notes or other obligations received by the Company or any such Restricted Subsidiary from such the transferee that are converted by the Company or such Restricted Subsidiary into cash within 180 days of the receipt thereof or Cash Equivalents (to the extent of the cash received)or Cash Equivalents received in such conversion) within 270 days following the closing of such Asset Sale; and (c) and
iii. any Designated Non-cash Noncash Consideration received by the Company or any of its Restricted Subsidiaries in such Asset Sale having an aggregate fair market valuevalue (as determined in good faith by an Officer of the Company), taken together with all other Designated Non-cash Noncash Consideration received pursuant to this clause (c) after December 14, 2010 that is at that time outstanding, not to exceed the greater of (x) $150 120.0 million and 5(y) 30.0% of Total Assets Consolidated EBITDA (determined for the most recent Test Period at the time of the effective date of any binding agreement regarding such disposition or, if no such binding agreement exists, for the most recent Test Period at the time of receipt of such Designated Non-cash Consideration (Noncash Consideration), with the fair market value of each item of Designated Non-cash Noncash Consideration being measured on the effective date of any binding agreement regarding such disposition or, if no such binding agreement exists, at the time received and and, in any case, without giving effect to subsequent changes in value). Notwithstanding the foregoing, shallthe 75% cash or Cash Equivalents requirement referred to in Section 4.10(a)(3) 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 each of (a)accordance with the foregoing provision on an after-tax basis, would have complied with the aforementioned 75% cash or Cash Equivalents requirement on a pre-tax basis.
(b) Within 540 days of the date of consummation of such Asset Sale, the Company or such Restricted Subsidiary, at its option, shall apply an amount equal to the Net Cash Proceeds from such Asset Sale as follows:
(1) to repay, prepay, defease, redeem, purchase or otherwise retire (and to permanently reduce commitments with respect thereto in the case of revolving borrowings):
(a) Obligations under the Notes (at a price equal to or greater than the aggregate principal amount of Notes purchased) or any other First Lien Obligations; provided, however, that (x) to the extent that the terms of such First Lien Obligations (other than the Notes) require Net Cash Proceeds to repay Obligations outstanding under such First Lien Obligations prior to the repayment of other First Lien Obligations, the Company or such Restricted Subsidiary shall be entitled to repay such First Lien Obligations prior to repaying Obligations under the Notes and (y) except as provided in the foregoing subclause (x), to the extent the Company or such Restricted Subsidiary so reduces any other First Lien Obligations, the Company will either (1) reduce Obligations under the Notes on a pro rata basis by, at its option, (A) redeeming Notes under Section 3.07, or (B) purchasing Notes through open market purchases at a price equal to or greater than the aggregate principal amount of Notes purchased or (2) make an offer (in accordance with the procedures set forth below for an Asset Sale Offer) to all Holders to purchase their Notes on a ratable basis with such other First Lien Obligations for no less than 100% of the principal amount thereof, plus the amount of accrued but unpaid interest, if any, thereon;
(b) solely to the extent such Net Cash Proceeds are not derived from an Asset Sale of Collateral, any other Pari Passu Indebtedness (other than First Lien Obligations); provided that if the Company or any Restricted Subsidiary shall so repay any Pari Passu Indebtedness other than the Notes, the Company will either (1) reduce Obligations under the Notes on a pro rata basis by, at its option, (A) redeeming Notes under Section 3.07, or (B) purchasing Notes through open market purchases at a price equal to or greater than the aggregate principal amount of Notes purchased or (2) make an offer (in accordance with the procedures set forth below for an Asset Sale Offer) to all Holders to purchase their Notes on a ratable basis with such other Pari Passu Indebtedness for no less than 100% of the principal amount thereof, plus the amount of accrued but unpaid interest, if any, thereon; or
(c) aboveIndebtedness of a Non-Guarantor Subsidiary, other than Indebtedness owed to the Company or another Restricted Subsidiary;
(2) to invest in assets in the business of the Company and its Restricted Subsidiaries (including, without limitation, to consummate Investments permitted under this Indenture) or to make capital expenditures; or
(3) a combination of the foregoing; provided that in the case of clause (2), a binding commitment shall be treated as a permitted application of the Net Cash Proceeds from the date of such commitment so long as the Company or such other Restricted Subsidiary enters into such commitment with the good faith expectation that such Net Cash Proceeds will be applied to satisfy such commitment, and such Net Cash Proceeds are actually so applied, within 180 days of such 540-day period (an “Acceptable Commitment”) (it being understood that if an Acceptable Commitment is later cancelled or terminated for any reason before such Net Cash Proceeds are so applied, then all such Net Cash Proceeds not so applied shall constitute Excess Proceeds).
(c) Any Net Cash Proceeds from Asset Sales outside of the ordinary course of business that are not applied or invested as provided in Section 4.10(b) (or such earlier date that the Company in its discretion determines not to apply all or any of such Net Cash Proceeds as provided in Section 4.10(b)) will be deemed to be cash constitute “Excess Proceeds.” Within ten (10) Business Days of the date on which the amount of Excess Proceeds exceeds (1) the greater of (x) $40.0 million and (y) 10.0% of Consolidated EBITDA for the purposes most recent Test Period with respect to any such Asset Sale or (2) the greater of (x) $60.0 million and (y) 15.0% of Consolidated EBITDA for the most recent Test Period with respect to all such Asset Sales occurring during a single fiscal year (or such lesser amount as the Company in its sole discretion determines), the Company will be required to make an offer (“Asset Sale Offer”) to all Holders of Notes and to the extent required by the terms of any other First Lien Obligations or, if the assets or property disposed of in the Asset Sale were not Collateral, other Pari Passu Indebtedness, to all holders of such First Lien Obligations and/or other Pari Passu Indebtedness, as applicable, outstanding with similar provisions requiring the Company to make an offer to purchase such First Lien Obligations and/or Pari Passu Indebtedness, as applicable, with the Net Cash Proceeds from any Asset Sale, to purchase a principal amount of Notes and, on a pro rata basis, any First Lien Obligations and/or such Pari Passu Indebtedness, as applicable, to which the Asset Sale Offer applies in an amount equal to the Applicable Percentage of the relevant Excess Proceeds, at an offer price in cash equal to 100% of the principal amount of the Notes, First Lien Obligations and Pari Passu Indebtedness plus accrued and unpaid interest to, but not including, the date of purchase, in accordance with the procedures set forth in this Indenture or the agreements governing the First Lien Obligations and/or Pari Passu Indebtedness, as applicable. To the extent that the aggregate amount of Notes, First Lien Obligations and Pari Passu Indebtedness so properly tendered and not withdrawn pursuant to an Asset Sale Offer is less than the Applicable Percentage of the applicable Excess Proceeds, the Company may use any remaining Excess Proceeds for any purpose not prohibited by this Indenture. If the aggregate principal amount of Notes surrendered by Holders thereof exceeds the portion of Asset Sale Offer Amount applicable to the Notes, the Trustee shall select the Notes to be purchased in accordance with Section 3.02 (with such adjustments as may be deemed appropriate by the Trustee so that only Notes in denominations of $2,000 or in integral multiples of $1,000 in excess thereof shall be purchased or returned or delivered to the applicable Holders). Upon completion of such Asset Sale Offer, the amount of Excess Proceeds shall be reset at zero. The Asset Sale Offer will remain open for a period of 20 Business Days following its commencement, except to the extent that a longer period is required by applicable law (the “Asset Sale Offer Period”). No later than five Business Days after the expiration of such Asset Sale Offer Period (the “Asset Sale Purchase Date”), the Company will purchase the principal amount of Notes, First Lien Obligations and Pari Passu Indebtedness required to be purchased pursuant to this Section 4.10 (the “Asset Sale Offer Amount”) or, if less than the Asset Sale Offer Amount has been so validly tendered, all Notes, First Lien Obligations and Pari Passu Indebtedness validly tendered in response to the Asset Sale Offer. If the Asset Sale Purchase Date is on or after a Record Date and on or before the related Interest Payment Date, any accrued and unpaid interest will be paid to the Person in whose name a Note is registered at the close of business on such Record Date. Pending the final application of any Net Cash Proceeds pursuant to this Section 4.10, the Company and its Restricted Subsidiaries may apply such Net Cash Proceeds temporarily to reduce Indebtedness or otherwise invest such Net Cash Proceeds in any manner not prohibited by this Indenture.
(d) On or before the Asset Sale Purchase Date, the Company will, to the extent lawful, accept for payment, on a pro rata basis to the extent necessary, the Asset Sale Offer Amount of Notes, First Lien Obligations and Pari Passu Indebtedness or portions of Notes, First Lien Obligations and Pari Passu Indebtedness so validly tendered and not properly withdrawn pursuant to the Asset Sale Offer, or if less than the Asset Sale Offer Amount has been validly tendered and not properly withdrawn, all Notes, First Lien Obligations and Pari Passu Indebtedness so validly tendered and not properly withdrawn (in integral multiples of $1,000 in the case of the Notes). The Company will deliver to the Trustee an Officers’ Certificate stating that such Notes or portions thereof were accepted for payment by the Company in accordance with the terms of this provision Section 4.10 and, in addition, the Company will deliver all certificates and notes required, if any, by the agreements governing the First Lien Obligations and/or Pari Passu Indebtedness. The Company or for purposes the Paying Agent, as the case may be, will promptly (but in any case not later than five Business Days after termination of the second paragraph Asset Sale Offer Period) mail or deliver to each tendering Holder of Notes an amount equal to the purchase price of the Notes so validly tendered and not properly withdrawn by such Holder and accepted by the Company for purchase. Any Note not so accepted will be promptly delivered by the Company to the Holder thereof. 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 in connection with the repurchase of Notes pursuant to the Asset Sale Offer. To the extent that the provisions of any securities laws or regulations conflict with provisions of this Section 4.10; and, the Company will comply with the applicable securities laws and regulations and will not be deemed to have breached its obligations under this Indenture by virtue of such compliance.
Appears in 1 contract
Samples: Indenture (Fortrea Holdings Inc.)
Asset Sales. The Company (a) Holdings shall not, and shall not permit any Restricted Subsidiary to, cause or make an Asset Sale, unless (x) Holdings or any of its Restricted Subsidiaries to, consummate an Asset Sale unless (i) the Company or the applicable Restricted SubsidiarySubsidiaries, as the case may be, receives consideration at the time of such Asset Sale at least equal to the fair market value Fair Market Value (if the consideration for such Asset Sale is less than or equal to $25.0 million, as determined in good faith by Holdings or if the consideration for such Asset Sale exceeds $25.0 million, as determined by an Independent Financial Advisor) of the assets sold or otherwise disposed of and (as determined in good faith by the Company); (iiy) at least 75% of the consideration therefor received by the Company Holdings or the such Restricted Subsidiary, as the case may be, from such Asset Sale shall be is in the form of cash or Cash Equivalents; provided that the amount of:
(ai) any liabilities (as shown on the Company’s Holdings’ or such a Restricted Subsidiary’s most recent balance sheet or in the footnotes notes thereto, or if incurred or accrued subsequent to the date of such balance sheet, such liabilities that would have been shown on the Company’s or such Restricted Subsidiary’s balance or the footnotes thereto if such incurrence or accrual had taken place on the date of such balance sheet, as determined by the Company) of the Company Holdings or any such Restricted Subsidiary (other than liabilities that are by their terms subordinated to the NotesNotes or any Subsidiary Guarantee) that are assumed by the transferee of any such assets; assets or that are otherwise cancelled or terminated in connection with the transaction with such transferee,
(bii) any securities, notes or other obligations or other securities or assets received by the Company Holdings or any such Restricted Subsidiary from such transferee that are converted by the Company Holdings or such Restricted Subsidiary into cash within 180 days of the receipt thereof (to the extent of the cash received); ,
(iii) with respect to any Asset Sale of Oil and Gas Properties by Holdings or any Restricted Subsidiary, the costs and expenses related to the exploration, development, completion or production of such Oil and Gas Properties and activities related thereto agreed to be assumed by the transferee (cor an Affiliate thereof),
(iv) [reserved],
(v) [reserved], and
(vi) any Designated Non-cash Consideration received by the Company Holdings or any of its Restricted Subsidiaries Subsidiary in such Asset Sale having an aggregate fair market valueFair Market Value (as determined in good faith by Holdings), taken together with all other Designated Non-cash Consideration received pursuant to this clause (cvi) after December 14, 2010 that is at that time outstanding, not to exceed the greater of $150 25.0 million and 5% of Total Assets at the time of the receipt of such Designated Non-cash Consideration (with the fair market value 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 of (a), (b) and (c) above, shall be deemed to be cash Cash Equivalents for the purposes of this provision Section 4.06.
(b) Within 365 days of an Issuer’s or for purposes any Restricted Subsidiary’s receipt of the second paragraph Net Proceeds of any Asset Sale, the Issuers or such Restricted Subsidiary may apply the Net Proceeds from such Asset Sale, at its option:
(i) to repay (v) Indebtedness constituting First-Priority Lien Obligations (and, if the Indebtedness repaid is revolving credit Indebtedness, to correspondingly reduce commitments with respect thereto), (w) Indebtedness of a Restricted Subsidiary that is not a Subsidiary Guarantor (provided that the assets disposed of in such Asset Sale were not assets of an Issuer or a Subsidiary Guarantor), (x) Obligations under the Notes, (D) other Pari Passu Indebtedness so long as the Net Proceeds from such Asset Sale are with respect to (A) assets that secure such other Pari Passu Indebtedness on a senior basis to the Notes Obligations or (B) assets not constituting Collateral) or (z) Other Second-Lien Obligations (provided that if an Issuer or any Subsidiary Guarantor shall so reduce Other Second-Lien Obligations under this clause (z) (which for the avoidance of doubt will not constitute Indebtedness under clauses (v), (w), (x) or (y), the Issuers will equally and ratably reduce Obligations under the Notes pursuant to Section 3.01, through open-market purchases (provided that such purchases are at or above 100% of the principal amount thereof or, in the event that the Notes were issued with significant original issue discount, 100% of the accreted value thereof) or by making an offer (in accordance with the procedures set forth below for an Asset Sale Offer) to all holders to purchase at a purchase price equal to 100% of the principal amount thereof (or, in the event that the Notes were issued with significant original issue discount, 100% of the accreted value thereof), plus accrued and unpaid interest and Additional Interest, if any, the pro rata principal amount of Notes, in each case other than Indebtedness owed to Holdings or an Affiliate of Holdings;
(ii) to make an Investment in any one or more businesses (provided that if such Investment is in the form of the acquisition of Capital Stock of a Person, such acquisition results in such Person becoming a Restricted Subsidiary of Holdings), assets, or property or capital expenditures, in each case (x) used or useful in a Similar Business or (y) that replace the properties and assets that are the subject of such Asset Sale; provided that if the assets that were disposed of in the Asset Sale constituted Collateral, the assets acquired must also be Collateral; or
(iii) to invest in Additional Assets; provided that if the assets that were disposed of in the Asset Sale constituted Collateral, the Additional Assets must also be Collateral.
(c) Any Net Proceeds from any Asset Sale that are not applied as provided and within the time period set forth in the first sentence of this Section 4.104.06(b) (it being understood that any portion of such Net Proceeds used to make an offer to purchase Notes, as described in clause (i) of this Section 4.06(b), shall be deemed to have been invested whether or not such offer is accepted) will be deemed to constitute “Excess Proceeds.” When the aggregate amount of Excess Proceeds exceeds $20,000,000, the Issuers shall make an offer to all holders of Notes (and, at the option of the Issuers, to holders of any Other Second-Lien Obligations) (an “Asset Sale Offer”) to purchase the maximum principal amount of Notes (and such Other Second-Lien Obligations), that is at least $2,000 and an integral multiple of $1.00 in excess thereof that may be purchased out of the Excess Proceeds at an offer price in cash in an amount equal to 100% of the principal amount thereof (or, in the event the Notes or such Other Second-Lien Obligations was issued with significant original issue discount, 100% of the accreted value thereof), plus accrued and unpaid interest and Additional Interest, if any (or, in respect of such Other Second-Lien Obligations, such lesser price, if any, as may be provided for by the terms of such Other Second-Lien Obligations), to the date fixed for the closing of such offer, in accordance with the procedures set forth in this Section 4.06. The Issuers will commence an Asset Sale Offer with respect to Excess Proceeds within ten (10) Business Days after the date that Excess Proceeds exceeds $20,000,000 by delivering the notice required pursuant to the terms of Sections 3.05 and 4.06(f), with a copy to the Trustee. To the extent that the aggregate amount of Notes (and such Other Second-Lien Obligations) tendered pursuant to an Asset Sale Offer is less than the Excess Proceeds, the Issuers may use any remaining Excess Proceeds for any purpose that is not prohibited by this Indenture. If the aggregate principal amount of Notes (and such Other Second-Lien Obligations) surrendered by holders thereof exceeds the amount of Excess Proceeds, the Trustee shall select the Notes to be purchased in the manner described in Section 4.06(e). Upon completion of any such Asset Sale Offer, the amount of Excess Proceeds shall be reset at zero.
(d) Pending the final application of any such Net Proceeds pursuant to this Section 4.06, Holdings or such Restricted Subsidiary may temporarily reduce Indebtedness under a revolving credit facility, if any, or otherwise invest such Net Proceeds in any manner not prohibited by this Indenture.
(e) The Issuers will comply with the requirements of Rule 14e-1 under the Exchange Act and any other securities laws and regulations to the extent such laws or regulations are applicable in connection with the repurchase of the Notes pursuant to an Asset Sale Offer. To the extent that the provisions of any securities laws or regulations conflict with the provisions of this Indenture, the Issuers will comply with the applicable securities laws and regulations and shall not be deemed to have breached its obligations described in this Indenture by virtue thereof.
(f) Not later than the date upon which written notice of an Asset Sale Offer is delivered to the Trustee as provided above, Holdings 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 the Asset Sale Offer purchase date, the Issuers shall also irrevocably deposit with the Trustee or with a paying agent (or, if an Issuer or a Wholly Owned Restricted Subsidiary is acting as the Paying Agent, segregate and hold in trust) an amount equal to the Asset Sale Offer purchase price to be paid in accordance with the provisions of this Section 4.06. Upon the expiration of the period for which the Asset Sale Offer remains open (the “Offer Period”), the Issuers 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 Issuers. 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 Issuers to the Trustee are greater than the purchase price of the Notes tendered, the Trustee shall deliver the excess to the Issuers immediately after the expiration of the Offer Period for application in accordance with this Section 4.06.
(g) Holders electing to have a Note purchased shall be required to surrender the Note, with an appropriate form duly completed, to the Issuers 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 an Issuer receives not later than one Business Day prior to the purchase date, a telegram, telex, facsimile transmission or letter setting forth the name of the holder, the principal amount of the Note which was delivered by the holder for purchase and a statement that such holder is withdrawing his election to have such Note purchased. If at the end of the Offer Period more Notes (and such Pari Passu Indebtedness) are tendered pursuant to an Asset Sale Offer than the Issuers are required to purchase, selection of such Notes for purchase shall be made by the Issuers in compliance with the requirements of the principal national securities exchange, if any, on which such Notes are listed (and the Issuers shall notify the Trustee of any such listing), or if such Notes are not so listed, on a pro rata basis, to the extent practicable, by lot or by such other method as the Issuers shall deem fair and appropriate (and in such manner as complies with the requirements of the Depository, if applicable); andprovided that no Notes of $2,000 or less shall be purchased in part. Selection of such Pari Passu Indebtedness shall be made pursuant to the terms of such Pari Passu Indebtedness.
(h) Notices of an Asset Sale Offer shall be mailed by the Issuers by first class mail, postage prepaid, or otherwise delivered in accordance with the applicable procedures of the Depository, at least 30 but not more than 60 days before the purchase date to each holder of Notes at such holder’s registered address (with a copy to the Trustee). If any Note is to be purchased in part only, any notice of purchase that relates to such Note shall state the portion of the principal amount thereof that has been or is to be purchased.
Appears in 1 contract
Samples: Indenture (Talos Energy Inc.)
Asset Sales. (a) The Company shall not, and shall not permit any of its Restricted Subsidiaries to, consummate cause or make an Asset Sale Sale, unless (ix) the Company or the applicable any of its Restricted SubsidiarySubsidiaries, as the case may be, receives consideration at the time of such Asset Sale at least equal to the fair market value of the assets sold or otherwise disposed of Fair Market Value (as determined in good faith by the Company); ) of the assets sold or otherwise disposed of, and (iiy) at least 75% of the consideration therefor received by the Company or the such Restricted Subsidiary, as the case may be, from such Asset Sale shall be is in the form of cash or Cash Equivalents; provided that the amount of:
(ai) any liabilities (as shown on the Company’s or such Restricted Subsidiary’s most recent balance sheet or in the footnotes notes thereto, or if incurred or accrued subsequent to the date of such balance sheet, such liabilities that would have been shown on the Company’s or such Restricted Subsidiary’s balance or the footnotes thereto if such incurrence or accrual had taken place on the date of such balance sheet, as determined by the Company) of the Company or any such Restricted Subsidiary of the Company (other than liabilities that are by their terms subordinated to the NotesSecurities or any Note Guaranty) that are assumed by the transferee of any such assets; assets or that are otherwise cancelled or terminated in connection with the transaction with such transferee,
(bii) any securities, notes or other obligations or other securities or assets received by the Company or any such Restricted Subsidiary of the Company from such transferee that are converted by the Company or such Restricted Subsidiary of the Company into cash within 180 days of the receipt thereof (to the extent of the cash received); and , and
(ciii) any Designated Non-cash Consideration received by the Company or any of its Restricted Subsidiaries in such Asset Sale having an aggregate fair market valueFair Market Value, taken together with all other Designated Non-cash Consideration received pursuant to this clause (ciii) after December 14, 2010 that is at that time outstanding, not to exceed the greater of $150 million and 53.0% of Total Assets and $45.0 million at the time of the receipt of such Designated Non-cash Consideration (with the fair market value 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 of (a), (b) and (c) above, shall be deemed to be cash Cash Equivalents for the purposes of this provision Section 4.06(a).
(b) Within 365 days after the Company’s or for purposes any Restricted Subsidiary of the second paragraph Company’s receipt of the Net Proceeds of any Asset Sale, the Company or such Restricted Subsidiary of the Company may apply the Net Proceeds from such Asset Sale, at its option:
(i) to repay Indebtedness constituting First Priority Lien Obligations (and, if the Indebtedness repaid is revolving credit Indebtedness, to correspondingly reduce commitments with respect thereto), the Securities, Indebtedness of a Foreign Subsidiary or Pari Passu Indebtedness (provided that if the Company or any Guarantor shall so reduce Obligations under Pari Passu Indebtedness (other than any First Priority Lien Obligation), the Issuers shall equally and ratably reduce Obligations under the Securities through open market purchases (provided that such purchases are at or above 100% of the principal amount thereof) and/or by making an offer (in accordance with the procedures set forth below for an Asset Sale Offer) to all Holders to purchase at a purchase price equal to 100% of the principal amount thereof, plus accrued and unpaid interest and Additional Interest, if any, of the pro rata principal amount of Securities) or Indebtedness of a Restricted Subsidiary that is not an Issuer or a Guarantor, in each case other than Indebtedness owed to the Company or an Affiliate of the Company,
(ii) to make an investment in any one or more businesses (provided that if such investment is in the form of the acquisition of Capital Stock of a Person, such acquisition results in such Person becoming a Restricted Subsidiary of the Company), assets, or property or capital expenditures, in each case used or useful in a Similar Business, and/or
(iii) to make an investment in any one or more businesses (provided that if such investment is in the form of the acquisition of Capital Stock of a Person, such acquisition results in such Person becoming a Restricted Subsidiary of the Company), properties or assets that replace the properties and assets that are the subject of such Asset Sale. In the case of Sections 4.06(b)(ii) and (iii), a binding commitment shall be treated as a permitted application of the Net Proceeds from the date of such commitment; provided that (x) such investment is consummated within 545 days after receipt by the Company or any Restricted Subsidiary of the Net Proceeds of any Asset Sale and (y) if such investment is not consummated within the period set forth in subclause (x), the Net Proceeds not so applied will be deemed to be Excess Proceeds (as defined below). Pending the final application of any such Net Proceeds, the Company or such Restricted Subsidiary of the Company may temporarily reduce Indebtedness under a revolving credit facility, if any, or otherwise invest such Net Proceeds in any manner not otherwise prohibited by this Indenture. Any Net Proceeds from any Asset Sale that are not applied as provided and within the time period set forth in the first sentence of this Section 4.104.06(b) (it being understood that any portion of such Net Proceeds used to make an offer to purchase Securities, as described in clause (i) of this Section 4.06(b), shall be deemed to have been invested whether or not such offer is accepted) shall be deemed to constitute “Excess Proceeds.” When the aggregate amount of Excess Proceeds exceeds $15 million, the Issuers shall make an offer to all Holders of Securities (and, at the option of the Issuers, to holders of any Pari Passu Indebtedness) (an “Asset Sale Offer”) to purchase the maximum principal amount of Securities (and such Pari Passu Indebtedness), that is at least $2,000 and an integral multiple of $1,000 that may be purchased out of the Excess Proceeds at an offer price in cash in an amount equal to 100% of the principal amount thereof (or, in the event such Pari Passu Indebtedness was issued with significant original issue discount, 100% of the accreted value thereof), plus accrued and unpaid interest and Additional Interest, if any (or, in respect of such Pari Passu Indebtedness, such lesser price, if any, as may be provided for by the terms of such Pari Passu Indebtedness), to the date fixed for the closing of such offer, in accordance with the procedures set forth in this Section 4.06. The Issuers shall commence an Asset Sale Offer with respect to Excess Proceeds within ten Business Days after the date that Excess Proceeds exceeds $15 million by mailing the notice required pursuant to the terms of Section 4.06(f), with a copy to the Trustee. To the extent that the aggregate amount of Securities (and such Pari Passu Indebtedness) tendered pursuant to an Asset Sale Offer is less than the Excess Proceeds, the Issuers may use any remaining Excess Proceeds for general corporate purposes. If the aggregate principal amount of Securities (and such Pari Passu Indebtedness) surrendered by holders thereof exceeds the amount of Excess Proceeds, the Trustee shall select the Securities to be purchased in the manner described in Section 4.06(e). Upon completion of any such Asset Sale Offer, the amount of Excess Proceeds shall be reset at zero.
(c) The Issuers shall comply with the requirements of Rule 14e-1 under the Exchange Act and any other securities laws and regulations to the extent such laws or regulations are applicable in connection with the repurchase of the Securities pursuant to an Asset Sale Offer. To the extent that the provisions of any securities laws or regulations conflict with the provisions of this Indenture, the Issuers shall comply with the applicable securities laws and regulations and shall not be deemed to have breached its obligations described in this Indenture by virtue thereof.
(d) Not later than the date upon which written notice of an Asset Sale Offer is delivered to the Trustee as provided above, the Company shall deliver to the Trustee an Officers’ Certificate as to (i) the amount of the Excess Proceeds, (ii) the allocation of the Net Proceeds from the Asset Sales pursuant to which such Asset Sale Offer is being made and (iii) the compliance of such allocation with the provisions of Section 4.06(b). On such date, the Company shall also irrevocably deposit with the Trustee or with a Paying Agent (or, if the Company or a Wholly Owned Restricted Subsidiary is acting as the Paying Agent, segregate and hold in trust) an amount equal to the Excess Proceeds to be invested in Cash Equivalents, as directed in writing by the Company, and to be held for payment in accordance with the provisions of this Section 4.06. Upon the expiration of the period for which the Asset Sale Offer remains open (the “Offer Period”), the Company shall deliver to the Trustee for cancellation the Securities or portions thereof that have been properly tendered to and are to be accepted by the Company. The Trustee (or the Paying Agent, if not the Trustee) shall, on the date of purchase, mail or deliver payment to each tendering Holder in the amount of the purchase price. In the event that the Excess Proceeds delivered by the Company to the Trustee are greater than the purchase price of the Securities tendered, the Trustee shall deliver the excess to the Company immediately after the expiration of the Offer Period for application in accordance with Section 4.06.
(e) Holders electing to have a Security purchased shall be required to surrender the Security, with an appropriate form duly completed, to the Company at the address specified in the notice at least three Business Days prior to the purchase date. Holders shall be entitled to withdraw their election if the Trustee or the Company receives not later than one Business Day prior to the Purchase Date, a telegram, telex, facsimile transmission or letter setting forth the name of the Holder, the principal amount of the Security which was delivered by the Holder for purchase and a statement that such Holder is withdrawing his election to have such Security purchased. If at the end of the Offer Period more Securities (and such Pari Passu Indebtedness) are tendered pursuant to an Asset Sale Offer than the Issuers are required to purchase, selection of such Securities for purchase shall be made by the Trustee in compliance with the requirements of the principal national securities exchange, if any, on which such Securities are listed, or if such Securities are not so listed, on a pro rata basis, by lot or by such other method as the Trustee shall deem fair and appropriate (and in such manner as complies with applicable legal requirements and the requirements of the Depository, if applicable); andprovided that no Securities of $2,000 or less shall be purchased in part. Selection of such Pari Passu Indebtedness shall be made pursuant to the terms of such Pari Passu Indebtedness.
(f) Notices of an Asset Sale Offer shall be mailed by first class mail, postage prepaid, at least 30 but not more than 60 days before the purchase date to each Holder of Securities at such Holder’s registered address. If any Security is to be purchased in part only, any notice of purchase that relates to such Security shall state the portion of the principal amount thereof that has been or is to be purchased.
Appears in 1 contract
Samples: Indenture (Verso Paper Corp.)
Asset Sales. The Company shall not, and shall not permit any of its Restricted Subsidiaries to, consummate an Asset Sale unless unless:
(i1) 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 Fair Market Value (measured as of the date of the definitive agreement with respect to such Asset Sale) of the assets or Equity Interests issued or sold or otherwise disposed of of; and
(as determined in good faith by the Company); (ii2) at least 75% of the aggregate consideration received in respect of such Asset Sale by the Company or the and its Restricted Subsidiary, as the case may be, from such Asset Sale shall be Subsidiaries is in the form of cash or Cash EquivalentsEquivalents (or a combination thereof); provided that that, for purposes of this provision, each of the amount offollowing shall be deemed to be cash:
(a) any liabilities (liabilities, as shown on the Company’s or such Restricted Subsidiary’s most recent balance sheet or in the footnotes thereto, or if incurred or accrued subsequent to the date of such consolidated balance sheet, such liabilities that would have been shown on the Company’s or such Restricted Subsidiary’s balance or the footnotes thereto if such incurrence or accrual had taken place on the date of such balance sheet, as determined by the Company) of the Company or any such Restricted Subsidiary (other than liabilities that are by their terms subordinated to the Notescontingent liabilities, Subordinated Debt and any obligations in respect of preferred stock) that are assumed by the transferee of any such assets; assets or Equity Interests pursuant to customary agreements (or other legal documentation with the same effect) that includes a full release of the Company or such Restricted Subsidiary from any and all liability therefor;
(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 within 180 90 days after the date of the receipt thereof (Asset Sale, to the extent of the cash received)received in that conversion; and and
(c) any Designated Non-cash Cash Consideration received by the Company or any of its Restricted Subsidiaries Subsidiary in such Asset Sale having an aggregate fair market valueFair Market Value, taken together with all other Designated Non-cash Cash Consideration received pursuant to this clause (c) after December 14, 2010 covenant that is at that time outstanding, not to exceed the greater of $150 75.0 million and 53.5% of Total Assets (measured 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). Within 365 days after the receipt of any Net Proceeds from an Asset Sale, shallthe Company or any Restricted Subsidiary may apply such Net Proceeds, in each of at its option:
(a)1) to repay, prepay, redeem or purchase (w) Indebtedness and other Obligations under a secured Credit Facility, (bx) any Indebtedness and other Obligations that were secured by the assets sold in such Asset Sale, (y) any Indebtedness of a Restricted Subsidiary that is not a Guarantor (other than Indebtedness owed to the Company or an Affiliate of the Company) or (z) other Indebtedness (other than Subordinated Debt and Indebtedness owed to the Company or an Affiliate of the Company) and Obligations with respect thereto;
(c2) aboveto invest in or acquire Additional Assets; or
(3) to make capital expenditures in respect of a Related Business of the Company or any Restricted Subsidiary or settle or satisfy Hedging Obligations; provided that, the Company and its Restricted Subsidiaries shall be deemed to be cash for have complied with this paragraph if and to the purposes extent that, within 365 days after the Asset Sale that generated the Net Proceeds, the Company or such Restricted Subsidiary has entered into and not abandoned or rejected a binding agreement to consummate any expenditure contemplated by clauses (2) or (3) of this provision or for purposes of the second paragraph of this Section 4.101015 with the good-faith expectation that such Net Proceeds shall be applied to satisfy such commitment within 180 days after the end of such 365-day period; provided further, that if such commitment is later cancelled or terminated before such Net Proceeds are applied or otherwise not applied within such 180-day period, then such Net Proceeds shall constitute Excess Proceeds as described in the following paragraph. However, pending application or investment of such Net Proceeds as provided in clauses (1) through (3) of the immediately preceding paragraph, such Net Proceeds may be applied to temporarily reduce revolving credit Indebtedness or otherwise invested in any manner that is not prohibited by this Indenture. An amount equal to any Net Proceeds from Asset Sales that are not applied or invested as provided in clauses (1) through (3) of the immediately preceding paragraph within the time periods provided for in the immediately preceding paragraph shall constitute “Excess Proceeds.” Within ten Business Days after the aggregate amount of Excess Proceeds exceeds $50.0 million, or earlier at the Company’s election, the Company shall make an offer (an “Asset Sale Offer”) to all Holders and all holders of other Indebtedness that is pari passu with the Notes containing provisions similar to those set forth in this Indenture with respect to offers to purchase or redeem with the proceeds of sales of assets, 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 for the Notes in any Asset Sale Offer shall be equal to 100% of the principal amount, plus accrued and unpaid interest, if any, to but excluding the date of purchase, and shall be payable in cash. If any Excess Proceeds remain after consummation of an Asset Sale Offer, the Company or any Restricted Subsidiary may use those Excess Proceeds for any purpose not otherwise prohibited by this Indenture. If the aggregate principal amount of Notes and other pari passu Indebtedness tendered into such Asset Sale Offer exceeds the amount of Excess Proceeds, the Company shall use the Excess Proceeds to purchase the Notes and such other pari passu Indebtedness on a pro rata basis based on the aggregate principal amount of Notes and such other pari passu Indebtedness tendered by the holders thereof. Upon completion of each Asset Sale Offer, the amount of Excess Proceeds shall be reset at zero. Notwithstanding the foregoing, the sale, conveyance or other disposition of all or substantially all of the properties or assets of the Company and its Restricted Subsidiaries, taken as a whole, shall be governed by Article Eight and/or Section 1010 of this Indenture, as applicable, and not by this Section 1015. The Company shall comply with the requirements of Rule 14e-1 under the Exchange Act and any other securities laws and regulations thereunder to the extent those laws and regulations are applicable in connection with each repurchase of Notes pursuant to an Asset Sale Offer. To the extent that the provisions of any securities laws or regulations conflict with this Section 1015, or compliance with this Section 1015 would constitute a violation of any such laws or regulations, the Company shall comply with the applicable securities laws and regulations and shall not be deemed to have breached its obligations under this Section 1015 by virtue of such compliance. In the event that, pursuant to this Section 1015, the Company is required to commence an Asset Sale Offer, it shall follow the procedures specified in this paragraph:
(1) The Asset Sale Offer shall be made to all Holders and all holders of other Indebtedness that is pari passu with the Notes containing provisions similar to those set forth in this Section 1015. The Asset Sale Offer shall remain open for a period of at least 20 Business Days following its commencement and not more than 30 Business Days, except to the extent that a longer period is required by applicable law (the “Offer Period”). No later than three Business Days after the termination of the Offer Period (the “Purchase Date”), the Company shall apply all Excess Proceeds (the “Offer Amount”) to the purchase of Notes and such other pari passu Indebtedness (on a pro rata basis, if applicable) or, if less than the Offer Amount has been tendered, all Notes and other Indebtedness tendered in response to the Asset Sale Offer. Payment for any Notes so purchased shall be made in the same manner as interest payments are made.
(2) If the Purchase Date is on or after an interest record date and on or before the related Interest Payment Date, any accrued and unpaid interest 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.
(3) Upon the commencement of an Asset Sale Offer, the Company shall send a notice to the Trustee and each of the Holders. The notice shall contain all instructions and materials necessary to enable such Holders to tender Notes pursuant to the Asset Sale Offer. The notice, which shall govern the terms of the Asset Sale Offer, shall state:
(a) that the Asset Sale Offer is being made pursuant to this Section 1015 and the length of time the Asset Sale Offer shall remain open;
(b) the Offer Amount, the purchase price and the Purchase Date;
(c) that any Note not tendered or accepted for payment shall continue to accrue interest;
(d) that, unless the Company defaults in making such payment, any Note accepted for payment pursuant to the Asset Sale Offer shall cease to accrue interest after the Purchase Date;
(e) that Holders electing to have a Note purchased pursuant to an Asset Sale Offer may elect to have Notes purchased in denominations of $2,000 and integral multiples of $1,000 in excess thereof only;
(f) that Holders electing to have Notes purchased pursuant to any Asset Sale Offer shall 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 shall be entitled to withdraw their election if the Company, the depositary or the Paying Agent, as the case may be, receives, not later than the expiration of the Offer Period, a telegram, telex, facsimile transmission or letter setting forth the name of the Holder, the principal amount of the Note the Holder delivered for purchase and a statement that such Holder is withdrawing his election to have such Note purchased;
(h) that, if the aggregate principal amount of Notes and other pari passu Indebtedness surrendered by Holders or holders, as applicable, thereof exceeds the Offer Amount, the Company shall select the Notes and other pari passu Indebtedness to be purchased on a pro rata basis based on the principal amount of Notes and such other pari passu Indebtedness surrendered (with such adjustments as may be deemed appropriate by the Company so that only Notes in denominations of $2,000, or an integral multiple of $1,000 in excess thereof, shall be purchased); and
(i) that Holders whose Notes were purchased only in part shall be issued new Notes equal in principal amount to the unpurchased portion of the Notes surrendered (or transferred by book-entry transfer), which unpurchased portion must be equal to $2,000 in principal amount or an integral multiple of $1,000 in excess thereof.
Appears in 1 contract
Asset Sales. The Company Holdings and the Borrower shall not, and shall not permit any of its their Restricted Subsidiaries to, consummate cause, make or suffer to exist an Asset Sale unless Sale, unless:
(ia) the Company Holdings or the applicable 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 by the Borrower in good faith) of the assets or Equity Interests issued or sold or otherwise disposed of;
(b) except in the case of a Permitted Non-Core Asset Sale, immediately before and after giving effect to such Asset Sale, no Event of Default has occurred and is continuing or would result therefrom;
(as determined c) except in good faith by the Company); (ii) case of a Permitted Asset Swap or Permitted Non-Core Asset Sale, at least 75% of the consideration therefor received by the Company Holdings or the such Restricted Subsidiary, as the case may be, from such Asset Sale shall be is in the form of (w) any securities publicly-traded on a national securities exchange, (x) cash or Cash Equivalents, (y) Replacement Assets or (z) any combination of the consideration specified in clauses (w), (x) and (y); provided that the amount of:
(ai) any liabilities (as shown on the Company’s Holdings’ or such Restricted Subsidiary’s most recent balance sheet or in the footnotes thereto, or if incurred or accrued subsequent to the date ) of such balance sheet, such liabilities that would have been shown on the Company’s Holdings or such Restricted Subsidiary’s balance or the footnotes thereto if such incurrence or accrual had taken place on the date of such balance sheet, as determined by the Company) of the Company or any such Restricted Subsidiary (other than liabilities that are by their terms subordinated to the Notes) Obligations and that are assumed by the transferee of any such assets; ;
(bii) any securities, notes or other obligations received by the Company Holdings or any such Restricted Subsidiary from such transferee that are converted by the Company Holdings or such Restricted Subsidiary into cash within 180 days of the receipt thereof or Cash Equivalents (to the extent of the cash or Cash Equivalents received)) within 180 days following the closing of such Asset Sale; and and
(ciii) any Designated Non-cash Cash Consideration received by the Company Holdings or any of its Restricted Subsidiaries in such Asset Sale having an aggregate fair market value, taken together with all other Designated Non-cash Cash Consideration received since the date of this Agreement pursuant to this clause (ciii) after December 14, 2010 that is at that time outstanding, not to exceed the greater of (x) $150 million 93,750,000 and 5(y) 25.0% of Total Assets LTM EBITDA (calculated at the time of the receipt of such Designated Non-cash Consideration determination) (with the fair market value of each item of Designated Non-cash Cash Consideration being measured at the time received and without giving effect to subsequent changes in value), shall, in each of (a), (b) and (c) above, ; shall be deemed to be cash or Cash Equivalents for the purposes of this provision and for no other purpose; and
(d) after the Borrower’s or for purposes Restricted Subsidiary’s receipt of the second paragraph Net Cash Proceeds of this any Asset Sale, the Borrower or such Restricted Subsidiary shall apply the Net Cash Proceeds from such Asset Sale if and to the extent required by Section 4.10; and5.2(c). Notwithstanding the foregoing, Holdings and its Restricted Subsidiaries shall be permitted to make Asset Sales in respect of assets not constituting Collateral so long as Holdings or such Restricted Subsidiary, as the case may be, receives consideration at the time of such Asset Sale at least equal to the fair market value (as determined by the Borrower in good faith) of the assets sold or otherwise disposed of.
Appears in 1 contract
Samples: Second Lien Credit and Guaranty Agreement (Informatica Inc.)
Asset Sales. The Company shall not, and shall not permit any of its Restricted Subsidiaries to, consummate an Asset Sale unless (i) 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 (as determined in good faith by the Company); (ii) 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 liabilities (as shown on the Company’s or such Restricted Subsidiary’s most recent balance sheet or in the footnotes thereto, or if incurred or accrued subsequent to the date of such balance sheet, such liabilities that would have been shown on the Company’s or such Restricted Subsidiary’s balance or the footnotes thereto if such incurrence or accrual had taken place on the date of such balance sheet, as determined by the Company) of the Company or any such Restricted Subsidiary (other than liabilities that are by their terms subordinated to the Notes) that are assumed by the transferee of any such assets; (b) any securities, notes or other obligations received by the Company or any such Restricted Subsidiary from such transferee that are converted by the Company or such Restricted Subsidiary into cash within 180 days of the receipt thereof (to the extent of the cash received); and (c) any Designated Non-cash 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 Non-cash Consideration received pursuant to this clause (c) after December 14, 2010 that is at that time outstanding, not to exceed the greater of $150 million and 5% 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, in each of (a), (b) and (c) above, be deemed to be cash for the purposes of this provision or for purposes of the second paragraph of this Section 4.10; and (iii) 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 545 days of receipt thereof either
(A) to prepay any Senior Debt or Indebtedness of a Restricted Subsidiary that is not a Guarantor and, in the case of any such Indebtedness under any revolving credit facility, effect a corresponding reduction in the availability under such revolving credit facility (or effect a permanent reduction in the availability under such revolving credit facility regardless of the fact that no prepayment is required in order to do so (in which case no prepayment should be required)),
(B) to reinvest in Productive Assets (provided that this requirement shall be deemed satisfied if the Company or such Restricted Subsidiary, by the end of such 545-day period, has entered into a binding agreement under which it is contractually committed to reinvest in Productive Assets, and such investment is consummated within 120 days from the date on which such binding agreement is entered into, and, with respect to the amount of such investment, the reference to the 546th day after an Asset Sale in the second following sentence shall be deemed to be a reference to the 121st day after the date on which such binding agreement is entered into (but only if such 121st day occurs later than such 546th day)) or
(C) a combination of prepayment and investment permitted by the foregoing clauses (iii)(A) and (iii)(B). Pending the final application of any such Net Cash Proceeds, the Company or such Restricted Subsidiary may temporarily reduce Indebtedness under a revolving credit facility, if any, or otherwise invest such Net Cash Proceeds in Cash Equivalents. On the 546th day after an Asset Sale or such earlier date, if any, as the Board of Directors of the Company or of such Restricted Subsidiary determines by Board Resolution not to apply the Net Cash Proceeds relating to such Asset Sale as set forth in clauses (iii)(A), (iii)(B) and (iii)(C) of the next preceding sentence (each, a “Net Proceeds Offer Trigger Date”), 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 (iii)(A), (iii)(B) and (iii)(C) of the next preceding sentence (each a “Net Proceeds Offer Amount”) shall be applied by the Company or such Restricted Subsidiary to make an offer to purchase (the “Net Proceeds Offer”) on a date (the “Net Proceeds Offer Payment Date”) not less than 30 nor more than 60 days following the applicable Net Proceeds Offer Trigger Date, from all Holders and holders of any other Senior Subordinated Debt of the Company or a Restricted Subsidiary of the Company requiring the making of such an offer, on a pro rata basis, the maximum amount of Notes and such other Senior Subordinated Debt that may be purchased with the Net Proceeds Offer Amount at a price equal to 100% of their principal amount (or, in the event such other Senior Subordinated Debt was issued with significant original issue discount, 100% of the accreted value thereof), plus accrued and unpaid interest thereon, if any, to the date of purchase (or, in respect of such other Senior Subordinated Debt, such lesser price, if any, as may be provided for by the terms of such Senior Subordinated Debt); provided, however, that if at any time any non-cash consideration (including any Designated 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 converted into or sold or otherwise disposed of for cash (other than interest received with respect to any such non-cash consideration), then such conversion or disposition shall be deemed to constitute an Asset Sale hereunder, and the Net Cash Proceeds thereof shall be applied in accordance with this Section 4.10. Notwithstanding the foregoing, if a Net Proceeds Offer Amount is less than $40.0 million, the application of the Net Cash Proceeds constituting such Net Proceeds Offer Amount to a Net Proceeds Offer may be deferred until such time as such Net Proceeds Offer Amount plus the aggregate amount of all Net Proceeds Offer Amounts arising subsequent to the Net Proceeds Offer Trigger Date relating to such initial Net Proceeds Offer Amount from all Asset Sales by the Company and its Restricted Subsidiaries aggregates to at least $40.0 million, at which time the Company or such Restricted Subsidiary shall apply all Net Cash Proceeds constituting all Net Proceeds Offer Amounts that have been so deferred to make a Net Proceeds Offer (the first date the aggregate of all such deferred Net Proceeds Offer Amounts is equal to $40.0 million or more shall be deemed to be a Net Proceeds Offer Trigger Date). Notwithstanding the immediately preceding paragraph, the Company and its Restricted Subsidiaries shall be permitted to consummate an Asset Sale without complying with such paragraph to the extent that: (i) at least 75% of the consideration for such Asset Sale constitutes Productive Assets, cash, Cash Equivalents and/or Marketable Securities; and (ii) such Asset Sale is for fair market value (as determined in good faith by the Company); provided that any consideration consisting of cash, Cash Equivalents and/or Marketable Securities received by the Company or any of its Restricted Subsidiaries in connection with any Asset Sale permitted to be consummated under this paragraph shall constitute Net Cash Proceeds subject to the provisions of the preceding paragraph. Notice of each Net Proceeds Offer will be sent to DTC, in the case of Global Notes, or mailed to the record Holders as shown on the register of Holders, in the case of certificated notes, 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 Section 3.09 hereof. To the extent that the aggregate amount of Notes and other Senior Subordinated Debt tendered pursuant to a Net Proceeds Offer is less than the Net Proceeds Offer Amount, the Company may use any remaining Net Proceeds Offer Amount for general corporate purposes or for any other purpose not prohibited by this Indenture. Upon completion of any such Net Proceeds Offer, the Net Proceeds Offer Amount shall be reset at zero. The Company shall comply with the requirements of Rule 14e-1 under the Exchange Act and any other securities laws and regulations thereunder to the extent such laws and regulations are applicable in connection with the repurchase of Notes pursuant to a Net Proceeds Offer. To the extent that the provisions of any securities laws or regulations conflict with the provisions of this Section 4.10, the Company shall comply with the applicable securities laws and regulations and shall not be deemed to have breached its obligations under this Section 4.10 by virtue thereof.
Appears in 1 contract
Samples: Indenture (TransDigm Group INC)
Asset Sales. (a) The Company Issuers shall not, and shall not permit any of its their Restricted Subsidiaries to, consummate an Asset Sale unless (including a Sale and Lease-Back Transaction), unless:
(i) the Company Issuers or the applicable such Restricted Subsidiary, as the case may be, receives consideration at the time of such Asset Sale at least equal to the fair market value Fair Market Value of the assets sold or otherwise disposed of (as determined in good faith by the Company)of; and
(ii) at least 75% of the consideration therefor received by the Company Issuers or the Restricted Subsidiarya Guarantor, as the case may be, from such Asset Sale shall be is in the form of cash or Cash Equivalents; provided that the amount of:
(a1) any liabilities (as shown on the Company’s Issuers' or such Restricted Subsidiary’s 's most recent balance sheet or in the footnotes theretothereto or, or if incurred or accrued increased subsequent to the date of such balance sheet, such liabilities that would have been shown on the Company’s Issuers' or such Restricted Subsidiary’s 's balance sheet or in the footnotes thereto if such incurrence or accrual increase had taken place on or prior to the date of such balance sheet, as determined by the Company) Issuers), contingent or otherwise, of the Company Issuers or any such Restricted Subsidiary (Subsidiary, other than liabilities that are by their terms subordinated to the Notes) Securities, that are assumed by the transferee of any such assets; assets or that are otherwise cancelled or terminated in connection with the transaction with such transferee and for which the Issuers and all of its Restricted Subsidiaries have been validly released by all creditors in writing, and
(b2) any securities, notes or other obligations or assets received by the Company Issuers or any such Restricted Subsidiary from such transferee that are converted by the Company Issuers or such Restricted Subsidiary into cash within 180 days of the receipt thereof Cash Equivalents (to the extent of the cash Cash Equivalents received); and (c) any Designated Non-cash Consideration received by within 30 days following the Company or any closing of its Restricted Subsidiaries in such Asset Sale having an aggregate fair market valueSale, taken together with all other Designated Non-cash Consideration received pursuant to this clause (c) after December 14, 2010 that is at that time outstanding, not to exceed the greater of $150 million and 5% 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, in each of (a), (b) and (c) above, shall be deemed to be cash Cash Equivalents for the purposes of this provision Section 4.06(a); and
(iii) such Asset Sale does not include any intellectual property, permits or licenses (or any rights therein) that are material to the conduct of the business of the Issuers or and their Restricted Subsidiaries, taken as a whole.
(b) Within 60 days after the receipt of Net Proceeds from any Asset Sale which cumulatively, with the Net Proceeds of any previous Assets Sales (excluding any Net Proceeds (i) voluntarily applied to redeem the Securities or the First Lien Notes or that will be applied to redeem the Securities or the First Lien Notes pursuant to an irrevocable notice of redemption issued in accordance with this Indenture or (ii) of ABL Priority Collateral that are required to be applied to repay outstanding Indebtedness under the ABL Credit Agreement), exceeds $5.0 million (the "Asset Sale Offer Threshold"), the Issuers shall make an offer to all Holders of the Securities (an "Asset Sale Offer") to purchase the maximum aggregate principal amount of the Securities that is at least $250,000 and an integral multiple of $1.00 in excess thereof with such Net Proceeds at an offer price in cash in an amount equal to 100% of the principal amount thereof, or 100% of the accreted value thereof, if less, plus accrued and unpaid interest (including PIK Interest) to, but not including, the date fixed for the closing of such offer, in accordance with the procedures set forth in this Indenture. The Issuers will commence an Asset Sale Offer by mailing the notice required pursuant to the terms of this Indenture, with a copy to the Trustee, or otherwise delivered in accordance with the procedures of DTC. Notwithstanding the foregoing, if the Issuers are required under the terms of the First Lien Indenture to make an "Asset Sale Offer" pursuant to the terms of such First Lien Indenture, the Issuers shall not be required to make an Asset Sale Offer pursuant to the terms of this Indenture unless and until after the consummation of such "Asset Sale Offer" pursuant to the terms of the First Lien Indenture, there remain Net Proceeds exceeding the Asset Sale Offer Threshold. To the extent that the aggregate amount of Securities tendered pursuant to an Asset Sale Offer is less than the Asset Sale Offer Threshold, the Issuers may use such Net Proceeds for general corporate purposes, subject to compliance with other covenants contained in this Indenture and such Net Proceeds shall no longer be included for purposes of determining the second paragraph Asset Sale Offer Threshold. If the aggregate principal amount of Securities surrendered in an Asset Sale Offer exceeds the amount of such Net Proceeds with which an Asset Sale Offer is being made, the Trustee shall select the Securities to be purchased in the manner described in Section 3.04. Pending the final application of any Net Proceeds, the Company shall deposit such Net Proceeds in an account in which the Collateral Trustee has a perfected security interest for the benefit of the Secured Parties in accordance with the applicable Lien priorities described in the Intercreditor Agreements. The Issuers shall comply with the requirements of Rule 14e-1 under the Exchange Act and any other securities laws and regulations thereunder to the extent such laws or regulations are applicable in connection with the repurchase of the Securities pursuant to an Asset Sale Offer. To the extent that the provisions of any securities laws or regulations conflict with the provisions of this Section 4.10; andIndenture, the Issuers shall comply with the applicable securities laws and regulations and shall not be deemed to have breached its obligations described in this Indenture by virtue thereof.
Appears in 1 contract
Samples: Indenture (Party City Holdco Inc.)
Asset Sales. (a) The Company shall will not, and shall will not permit any of its Restricted Subsidiaries to, consummate an Asset Sale unless unless:
(i1) the Company (or the applicable Restricted Subsidiary, as the case may be, ) receives consideration at the time of such the Asset Sale at least equal to the fair market value Fair Market Value of the assets or Equity Interests sold or issued or otherwise disposed of of; and
(as determined in good faith by the Company); (ii2) at least 75% of the consideration received in the Asset Sale by the Company or the such Restricted Subsidiary, as the case may be, from such Asset Sale shall be Subsidiary is in the form of cash or Cash Equivalents; provided that . For purposes of this clause (2), each of the amount offollowing shall be deemed to be cash:
(aA) any liabilities (liabilities, as shown on the Company’s or such Restricted Subsidiary’s most recent balance sheet or in the footnotes thereto, or if incurred or accrued subsequent to the date of such internal balance sheet, such liabilities that would have been shown on the Company’s or such Restricted Subsidiary’s balance or the footnotes thereto if such incurrence or accrual had taken place on the date of such balance sheet, as determined by the Company) of the Company or any such Restricted Subsidiary (other than contingent liabilities and liabilities that are by their terms subordinated to the NotesNotes or any Note Guarantee) that are unconditionally assumed by the transferee of any such assets; assets to the extent that the Company or the applicable Restricted Subsidiary is released from all liability with respect thereto;
(bB) any securities, notes or other obligations received by the Company or any such Restricted Subsidiary from such transferee that are converted by the Company or such Restricted Subsidiary into cash or Cash Equivalents within 180 90 days of the receipt thereof (after receipt, to the extent of the cash received); and or Cash Equivalents received in that conversion;
(cC) any Designated Non-cash Noncash Consideration received by the Company or any of its Restricted Subsidiaries Subsidiary in such Asset Sale having an aggregate fair market valueFair Market Value, taken together with all other Designated Non-cash Noncash Consideration received pursuant to this clause (cC) after December 14, 2010 that is at that time outstandingsince the date of this Indenture, not to exceed the greater of (x) $150 15.0 million and 5(y) 3.0% of Total Assets at the time of the receipt of such Designated Non-cash Consideration (Noncash Consideration, with the fair market value Fair Market Value of each item of Designated Non-cash Noncash Consideration being measured at the time received and without giving effect to subsequent changes in value;
(D) any stock or assets of the kind referred to in clauses (2) or (4) of Section 4.10(b) hereof; and
(E) a combination of the consideration specified in the foregoing clauses (A) through (D) of this Section 4.10(a).
(b) Within 365 days after the receipt of any Net Proceeds from an Asset Sale, shallthe Company (or the applicable Restricted Subsidiary, as the case may be) may apply such Net Proceeds at its option:
(1) to repay Senior Debt that is secured by a Lien, which Lien is permitted by this Indenture;
(2) to acquire all or substantially all of the assets of, or any Capital Stock of, another Permitted Business, provided that, in each the case of any such acquisition of Capital Stock, the Permitted Business is or becomes or is merged with or into a Restricted Subsidiary of the Company;
(a3) to make a capital expenditure;
(4) to acquire other assets that are not classified as current assets under GAAP and that are used or useful in a Permitted Business;
(5) to repay other Senior Debt; provided that to the extent the Company (or the applicable Restricted Subsidiary, as the case may be) reduces Obligations under Senior Debt other than the Notes, the Company shall equally and ratably reduce Obligations under the Notes pursuant to 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 in Section 3.09) to all Holders to purchase their Notes at 100% of the principal amount thereof, plus the amount of accrued and unpaid interest and Special Interest, if any, on the amount of Notes to be prepaid; or
(6) a combination of repayments, acquisitions and expenditures permitted by the immediately foregoing clauses (1) through (5) of this Section 4.10(b); provided that, in the case of clauses (2), (b3) and (c4) aboveabove of this Section 4.10(b), a binding commitment entered into not later than such 365th day will extend the period for such investment or other payment for up to an additional 180 days after the end of such 365-day period so long as the Company or a Restricted Subsidiary enters into such commitment with the good faith expectation that such Net Proceeds will be applied to satisfy such commitment within such 180 days (an “Acceptable Commitment”). In the event an Acceptable Commitment is later cancelled or terminated for any reason before the Net Proceeds are applied in connection therewith but after the end of the original 365-day period, then such Net Proceeds will be deemed to be cash for constitute Excess Proceeds on the purposes date of this provision such cancellation or for purposes of termination. In addition to the second paragraph of foregoing, at any time and on one or more occasions prior to such 365th day (as extended, if applicable), the Company in its sole discretion may apply Net Proceeds from one or more Asset Sales to make an Asset Sale Offer as described below in this Section 4.10; and. Pending the final application of any Net Proceeds, the Company may temporarily reduce revolving credit borrowings or otherwise invest the Net Proceeds in any manner that is not prohibited by this Indenture. Any Net Proceeds from Asset Sales that are not applied or invested as provided in Section 4.10(b) hereof will constitute “Excess Proceeds.” When the aggregate amount of Excess Proceeds exceeds $25.0 million (or such lesser amount that the Company determines), the Company will make an Asset Sale Offer to all Holders of Notes and all holders of other Indebtedness that is pari passu with the Notes containing provisions similar to those set forth in this Indenture with respect to offers to purchase or redeem with the proceeds of sales of assets in accordance with Section 3.09 hereof to purchase the maximum principal amount of Notes and such other pari passu Indebtedness that may be purchased out of the Excess Proceeds. The offer price in any Asset Sale Offer will be equal to 100% of the principal amount plus accrued and unpaid interest and Special Interest, if any, to the date of purchase and will be payable in cash. If any Excess Proceeds remain after consummation of an Asset Sale Offer, the Company may use those Excess Proceeds for any purpose not otherwise prohibited by this Indenture. If the aggregate principal amount of Notes and other pari passu Indebtedness tendered into such Asset Sale Offer exceeds the amount of Excess Proceeds, the Trustee shall select the Notes and such other pari passu Indebtedness to be purchased on a pro rata basis, subject to DTC procedures applicable to Global Notes. Upon completion of each Asset Sale Offer, the amount of Excess Proceeds will be reset at zero. The Company will comply with the requirements of Rule 14e-1 under the Exchange Act and any other securities laws and regulations thereunder to the extent such laws and regulations are applicable in connection with each repurchase of Notes pursuant to an Asset Sale Offer. To the extent that the provisions of any securities laws or regulations conflict with the provisions of Section 3.09 hereof or this Section 4.10, the Company will comply with the applicable securities laws and regulations and will not be deemed to have breached its obligations under Section 3.09 hereof or this Section 4.10 by virtue of such compliance.
Appears in 1 contract
Asset Sales. The Company (a) Holdings shall not, and shall not permit any of its Restricted Subsidiaries to, consummate an Asset Sale unless unless:
(i1) the Company Holdings (or the applicable such Restricted Subsidiary, as the case may be, ) receives consideration at the time of such the Asset Sale at least equal to the fair market value of the assets or Equity Interests issued or sold or otherwise disposed of;
(2) in the case of (as Asset Sales involving consideration in excess of $10.0 million, the fair market value is determined in good faith by the Company)Holdings’ Board of Directors; and
(ii3) except for any Permitted Asset Swap, at least 75% of the consideration received by in the Company or the Restricted Subsidiary, as the case may be, from such Asset Sale shall be by Holdings or such Restricted Subsidiary is in the form of cash or Cash Equivalents; provided that . For purposes of clause (3) above, the amount of:
of (ai) any liabilities (as shown on Holdings’ or the Company’s or such applicable Restricted Subsidiary’s most recent balance sheet or in the footnotes notes thereto, or if incurred or accrued subsequent to the date of such balance sheet, such liabilities that would have been shown on the Company’s or such Restricted Subsidiary’s balance or the footnotes thereto if such incurrence or accrual had taken place on the date of such balance sheet, as determined by the Company) of the Company Holdings or any such Restricted Subsidiary (other than liabilities that are by their terms subordinated to the NotesNotes or the Guarantees) that are assumed by the transferee of any such assets; assets and from which Holdings and all Restricted Subsidiaries have been validly released by all creditors in writing, (bii) any securities, notes or other obligations securities received by the Company Holdings or any such Restricted Subsidiary from such transferee that are converted by the Company Holdings or such Restricted Subsidiary into cash within 180 days of the receipt thereof (to the extent of the cash received); ) within 180 days following the closing of such Asset Sale and (ciii) any Designated Non-cash Consideration received by the Company Holdings or any of its Restricted Subsidiaries in such Asset Sale having an aggregate fair market valuevalue (as determined in good faith by the Board of Directors of Holdings), taken together with all other Designated Non-cash Consideration received pursuant to this clause (ciii) after December 14, 2010 that is at that time outstanding, not to exceed the greater of (x) $150 75.0 million and 5(y) $75.0 million plus or minus, as applicable, an amount equal to 6% of Total Assets at Consolidated Net Income of Holdings for the time period (taken as one accounting period) from January 1, 2005 to the end of Holding’s most recently ended fiscal quarter prior to the receipt of date on which such Designated Non-cash Consideration is received (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 of (a), (b) and (c) above, shall be deemed to be cash for the purposes of this provision Section 4.13(a)(3) and for no other purpose.
(b) Within 365 days after the receipt of any Net Proceeds from an Asset Sale, Holdings may apply those Net Proceeds at its option:
(1) to permanently reduce Obligations under Senior Debt (and to correspondingly reduce commitments with respect thereto) or Indebtedness that ranks pari passu with the Notes (provided that if Holdings shall so reduce Obligations under Indebtedness that ranks pari passu with the Notes, it shall equally and ratably reduce Obligations under the Notes by causing the Issuer to make an offer (in accordance with the procedures set forth in Section 4.13(c) for purposes an Asset Sale Offer (as defined in Section 4.13(c))) to all Holders of Notes to purchase at a purchase price equal to 100% of the second principal amount thereof, plus accrued and unpaid interest and Additional Interest, if any, on the pro rata principal amount of Notes) or Indebtedness of a Restricted Subsidiary that (x) is a Subsidiary of the Issuer and (y) is not a Guarantor, in each case other than Indebtedness owed to Holdings or an Affiliate of Holdings;
(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 and results in Holdings or a Restricted Subsidiary owning an amount of the Capital Stock of such business such that such business constitutes a Restricted Subsidiary, (B) capital expenditures or (C) other assets, in each of (A), (B) and (C), used or useful in a Permitted Business; or
(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 and it results in Holdings or a Restricted Subsidiary owning an amount of the Capital Stock of such business such that such business constitutes a Restricted Subsidiary, (B) properties or (C) assets that, in each of (A), (B) and (C), replace the businesses, properties and assets that are the subject of such Asset Sale. Any Net Proceeds from an Asset Sale not applied or invested in accordance with the preceding paragraph 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 Holdings or a Restricted Subsidiary enters into a definitive binding agreement committing it to apply such Net Proceeds in accordance with the requirements of clause (2) or (3) of Section 4.13(b) after such 365th day, such 365-day period shall 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).
(c) When the aggregate amount of Excess Proceeds exceeds $20.0 million, Holdings, or the applicable Restricted Subsidiary (including the Issuer), shall make an offer (an “Asset Sale Offer”) to all Holders of Notes and holders of Indebtedness that ranks pari passu with the Notes and contains provisions similar to those set forth in this Section 4.10; andIndenture 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 “Asset Sale Offer Amount”). The offer price in any Asset Sale Offer shall be equal to 100% of principal amount thereof, plus accrued and unpaid interest and Additional Interest, if any, to the date of purchase, and shall be payable in cash.
(d) Pending the final application of any Net Proceeds, Holdings, or the applicable Restricted Subsidiary (including the Issuer), may temporarily reduce revolving credit borrowings or otherwise invest the Net Proceeds in any manner that is not prohibited by this Indenture.
Appears in 1 contract
Samples: Indenture (Warner Chilcott CORP)
Asset Sales. (a) The Company shall not, and shall not permit any of its Restricted Subsidiaries to, consummate an Asset Sale unless (iexcluding an Event of Loss for this purpose) 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 or Equity Interests issued or sold or otherwise disposed of of; and
(as determined in good faith by the Company); (ii2) at least 75% of the consideration received by the Company or the such Restricted Subsidiary, as the case may be, from such the Asset Sale shall be is in the form of (A) cash or Cash Equivalents; provided Equivalents or (B) properties and capital assets to be used by the Company or any Restricted Subsidiary in the Principal Business, or Capital Stock of a Person engaged in the Principal Business which becomes a Restricted Subsidiary of the Company, or any combination thereof (collectively, the “Cash Consideration”): provided, however, that the amount of:
of (a) any liabilities (as shown on the Company’s or such Restricted Subsidiary’s most recent balance sheet or in the footnotes thereto, or if incurred or accrued subsequent to the date of such balance sheet, such liabilities that would have been shown on the Company’s or such Restricted Subsidiary’s balance or the footnotes thereto if such incurrence or accrual had taken place on the date of such balance sheet, as determined by the Company) of the Company or any such Restricted Subsidiary (other than contingent liabilities and liabilities that are by their terms subordinated to the Notes6 ⅞% Notes or any Subsidiary Guarantee) that are assumed by the transferee of any such assets; assets pursuant to (1) a customary novation agreement that releases the Company or such Restricted Subsidiary from further liability or (2) an assignment agreement that includes, in lieu of such a release, the agreement of the transferee or its parent company to indemnify and hold harmless the Company or such Restricted Subsidiary from and against any loss, liability or cost in respect of such assumed liability (provided, however, that 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 case, 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) and (b) any securities, notes or other obligations non-Cash Consideration received by the Company or any such Restricted Subsidiary from such transferee that are is converted by the Company or such Restricted Subsidiary into cash within 180 90 days of the receipt thereof (to the extent of the cash received); and (c) any Designated Non-cash 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 Non-cash Consideration received pursuant to this clause (c) after December 14, 2010 that is at that time outstanding, not to exceed the greater of $150 million and 5% 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, in each of (a), (b) and (c) above, shall be deemed to be cash for the purposes of this provision Section 10.14(a).
(b) Notwithstanding the foregoing, the 75% limitation referred to in Section 10.14(a) shall be deemed satisfied with respect to any Asset Sale in which the cash or for purposes Cash Equivalents portion of the second paragraph 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.
(c) Within 365 days after the receipt of any Net Proceeds from an Asset Sale, the Company or any such Restricted Subsidiary may apply such an amount equal to those Net Proceeds, at its option, to:
(1) prepay, repay, defease, redeem, purchase or otherwise retire any Secured Indebtedness, and, if the Secured Indebtedness repaid is revolving credit Indebtedness, to correspondingly reduce commitments with respect thereto;
(2) make a capital expenditure; or
(3) acquire assets used in the Principal Business or to acquire all or substantially all of the assets of, or any Capital Stock of, another Person engaged in the Principal Business. Notwithstanding the foregoing, if within 365 days after the receipt of any Net Proceeds from an Asset Sale, the Company (or the applicable Restricted Subsidiary, as the case may be) enters into a binding written agreement irrevocably committing the Company or such Restricted Subsidiary to an application of funds of the kind described in clause (2) or (3) of this Section 4.1010.14(c), and as to which the only condition to closing is the receipt of required governmental approvals, the Company or such Restricted Subsidiary shall be deemed not to be in violation of this Section 10.14(c). Any Net Proceeds that are applied pursuant to clause (2) or (3) of this Section 10.14(c) pursuant to any such binding agreement shall be deemed to have been applied for such purpose within such 365-day period so long as they are so applied within two years after the date of receipt of such Net Proceeds.
(d) Pending the final application of any Net Proceeds, the Company or any such Restricted Subsidiary may temporarily reduce outstanding revolving credit borrowings or otherwise invest such Net Proceeds in any manner that is not prohibited by this Indenture.
(e) An amount equal to any Net Proceeds from Asset Sales that are not applied or invested as provided in preceding paragraphs of this Section 4.10 will constitute “Excess Proceeds.” When the aggregate amount of Excess Proceeds exceeds $30.0 million, the Company shall make an Asset Sale Offer to all Holders of 6 ⅞% Notes and all holders of Pari Passu Indebtedness to purchase the maximum principal amount of 6 ⅞% Notes and such Pari Passu Indebtedness that may be purchased out of the Excess Proceeds. The offer price in any Asset Sale Offer will be equal to 100% of the principal amount of the Indebtedness to be purchased plus accrued and unpaid interest to the date of purchase (subject to the rights of Holders on the relevant record date to receive interest due on an Interest Payment Date that is on or prior to the date of purchase), and will be payable in cash, in accordance with the procedures set forth in this Indenture, in the case of the 6 ⅞% Notes, or in the instruments governing the terms of the Pari Passu Indebtedness, in the case of such Pari Passu Indebtedness; provided, however, that, if the Company is required to apply such Excess Proceeds to repurchase, or to offer to repurchase, any Pari Passu Indebtedness, the Company shall only be required to offer to repurchase the maximum principal amount of 6 ⅞% 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 6 ⅞% Notes outstanding and the denominator of which is the aggregate principal amount of 6 ⅞% Notes outstanding plus the aggregate principal amount of such Pari Passu Indebtedness outstanding. To the extent that the aggregate principal amount of 6 ⅞% Notes tendered pursuant to an Asset Sale Offer is less than the amount that the Company is required to repurchase, the Company may use the difference between such amounts for purposes not otherwise prohibited by this Indenture. If the aggregate principal amount of 6 ⅞% Notes surrendered by Holders thereof exceeds the amount that the Company is required by this Section 10.14 to repurchase, the Trustee shall select the 6 ⅞% 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.
(f) Notwithstanding the foregoing, the sale, conveyance or other disposition of all or substantially all of the assets of the Company and its Restricted Subsidiaries, taken as a whole, will be governed by the provisions of Sections 8.1 and/or 10.16 and not by this Section 10.14.
(g) 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 6 ⅞% Notes pursuant to an Asset Sale Offer. To the extent that the provisions of any securities laws or regulations conflict with the provisions of this Section 10.14 (or compliance with the provisions of this Section 10.14 would constitute a violation of any such laws or regulations), the Company will comply with the applicable securities laws and regulations and will not be deemed to have breached its obligations under this Section 10.14 by virtue of such compliance.
(h) In the event that, pursuant to the preceding provisions of this Section 10.14, the Company is required to commence an offer to all Holders to purchase 6 ⅞% Notes (an “Asset Sale Offer”), it will follow the procedures specified below.
(i) The Asset Sale Offer shall be made to all Holders 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 proceeds of sales of assets. The Asset Sale Offer will remain open for a period of at least 20 Business Days following its commencement and not more than 30 Business Days, except to the extent that a longer period is required by applicable law (the “Offer Period”). No later than three Business Days after the termination of the Offer Period (the “Purchase Date”), the Company will apply all Excess Proceeds (the “Offer Amount”) to the purchase of 6 ⅞% Notes and such other Pari Passu Indebtedness (on a pro rata basis, if applicable) or, if less than the Offer Amount has been tendered, all 6 ⅞% Notes and other Indebtedness tendered in response to the Asset Sale Offer. Payment for any 6 ⅞% Notes so purchased will be made in the same manner as interest payments are made.
(j) Upon the commencement of an Asset Sale Offer, the Company will send, by first class mail, a notice to the Trustee and each of the Holders, with a copy to the Trustee. The notice will contain all instructions and materials necessary to enable such Holders to tender 6 ⅞% Notes pursuant to the Asset Sale Offer. The notice, which will govern the terms of the Asset Sale Offer, will state:
(1) that the Asset Sale Offer is being made pursuant to this Section 10.14 and the length of time the Asset Sale Offer will remain open;
(2) the Offer Amount, the purchase price and the Purchase Date;
(3) that any 6 ⅞% Note not tendered or accepted for payment will continue to accrue interest;
(4) that, unless the Company defaults in making such payment, any 6 ⅞% Note or portion thereof accepted for payment pursuant to the Asset Sale Offer will cease to accrue interest after the Purchase Date;
(5) that Holders electing to have a 6 ⅞% Note purchased pursuant to an Asset Sale Offer may elect to have 6 ⅞% Notes purchased in integral multiples of $1,000 only;
(6) that Holders electing to have 6 ⅞% Notes purchased pursuant to any Asset Sale Offer will be required to surrender the 6 ⅞% Note, with the form entitled “Option of Holder to Elect Purchase” attached to the 6 ⅞% Notes completed, or transfer by book-entry transfer, to the Company, a depositary, if appointed by the Company, or a Paying Agent at the address specified in the notice at least three days before the Purchase Date;
(7) that Holders will be entitled to withdraw their election if the Company, the depositary or the Paying Agent, as the case may be, receives, not later than the expiration of the Offer Period, a telegram, telex, facsimile transmission or letter setting forth the name of the Holder, the principal amount of the 6 ⅞% Note the Holder delivered for purchase and a statement that such Holder is withdrawing its election to have such 6 7/8% Note purchased;
(8) that, if the aggregate principal amount of 6 ⅞% Notes and any Pari Passu Indebtedness surrendered by holders thereof exceeds the Offer Amount, the Company will select the 6 7/8% Notes and such Pari Passu Indebtedness to be purchased on a pro rata basis based on the principal amount of 6 ⅞% Notes and such Pari Passu Indebtedness surrendered (with such adjustments as may be deemed appropriate by the Company so that only 6 ⅞% Notes in denominations of $1,000, or integral multiples thereof, will be purchased); and
(9) that Holders whose 6 ⅞% Notes were purchased only in part will be issued new 6 ⅞% Notes equal in principal amount to the unpurchased portion of the 6 ⅞% Notes surrendered (or transferred by book-entry transfer).
(k) No later than 11:00 a.m., New York City time, on the Purchase Date, the Company will, to the extent lawful, accept for payment, on a pro rata basis to the extent necessary, the Offer Amount of 6 ⅞% Notes or portions thereof tendered pursuant to the Asset Sale Offer, or if less than the Offer Amount has been tendered, all 6 ⅞% Notes tendered, and will deliver or cause to be delivered to the Trustee the 6 ⅞% Notes properly accepted together with an Officers’ Certificate stating that such 6 ⅞% Notes or portions thereof were accepted for payment by the Company in accordance with the terms of this Section 10.14. The Company, the depositary or the Paying Agent, as the case may be, will promptly (but in any case not later than five days after the Purchase Date) mail or deliver to each tendering Holder an amount equal to the purchase price of the 6 ⅞% Notes tendered by such Holder and accepted by the Company for purchase, and the Company, will promptly issue a new 6 ⅞% Note, and the Trustee, upon written request from the Company, will authenticate and mail or deliver (or cause to be transferred by book entry) such new 6 ⅞% Note to such Holder, in a principal amount equal to any unpurchased portion of the 6 ⅞% Note surrendered. Any 6 ⅞% Note not so accepted shall be promptly mailed or delivered by the Company to the Holder thereof. The Company will publicly announce the results of the Asset Sale Offer on the Purchase Date.
Appears in 1 contract
Samples: First Supplemental Indenture (Frontier Oil Corp /New/)
Asset Sales. The Company Effect any Disposition of any Property, except that the following shall notbe permitted:
(a) Dispositions of worn out, and shall not permit obsolete or surplus Property by Borrower or any of its Restricted Subsidiaries toin the ordinary course of business and the abandonment, consummate an Asset Sale unless transfer, assignment, cancellation, lapse or other Disposition of immaterial Intellectual Property that is, in the reasonable good faith judgment of the Borrower or such Subsidiary, no longer economically practicable or commercially desirable to maintain or useful in the conduct of the business of the Companies;
(b) other Dispositions of Property; provided that (i) the Company such Dispositions of Property are made for not less than Fair Market Value, (ii) no Default or the applicable Restricted Subsidiary, as the case may be, receives consideration Event of Default is continuing at the time of such Asset Sale at least equal to the fair market value of the assets sold Disposition or otherwise disposed of would result therefrom and (as determined in good faith by the Company); (iiiii) at least 75% of the consideration received by the Company or the Restricted Subsidiary, as the case may be, from payable in respect of such Asset Sale Disposition of Property shall be in the form of cash or Cash Equivalents; provided that Equivalents (and for the amount of:
purposes of making the foregoing calculation, the following shall be deemed “cash”: (a1) any liabilities (as shown on the Company’s or such Restricted Subsidiary’s most recent balance sheet or in the footnotes thereto, or if incurred or accrued subsequent to the date of such balance sheet, such liabilities that would have been shown on the Company’s or such Restricted Subsidiary’s balance or the footnotes thereto if such incurrence or accrual had taken place on the date of such balance sheet, as determined assumption by the Company) transferee of the Company Indebtedness or any such Restricted Subsidiary other liabilities (other than Indebtedness and liabilities that are by their terms subordinated to the NotesObligations) that are assumed by the transferee of any such assets; (b) any securities, notes contingent 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 otherwise of the receipt thereof (to the extent of the cash received); and (c) any Designated Non-cash Consideration received by the Company Borrower or any of its Restricted Subsidiaries in connection with such Disposition and (2) aggregate non-cash consideration received by the Borrower and its Subsidiaries for all Asset Sale Dispositions under this Section 6.06(b) having an aggregate a fair market value, taken together with all other Designated Nonvalue (as determined in good faith by the Borrower as of the closing of the applicable Disposition for which non-cash Consideration consideration is received) not to exceed $15,000,000 (net of any non-cash consideration converted into cash and Cash Equivalents received pursuant to this clause in respect of any non-cash consideration)).
(c) after December 14leases, 2010 subleases, or non-exclusive licenses or sublicenses of real or personal Property (including Intellectual Property or other general intangibles) to third parties in the ordinary course of business and in accordance with the applicable Security Documents;
(d) Permitted Liens in compliance with Section 6.02;
(e) to the extent constituting a Disposition, the making of Investments in compliance with Section 6.04;
(f) Dispositions related to mergers, consolidations and other transactions in compliance with Section 6.05;
(g) Dividends and other transactions in compliance with Section 6.07;
(h) Dispositions of cash and Cash Equivalents in the ordinary course of business;
(i) any Disposition of Property that constitutes a Casualty Event;
(j) sales, transfers, leases and other Dispositions (excluding sales of Equity Interests of any Subsidiary) (i) to the Borrower or to any other Loan Party and (ii) to any Subsidiary that is at not a Loan Party from another Subsidiary that time outstandingis not a Loan Party;
(k) sale, not forgiveness, or discount of customer delinquent notes or accounts receivable in the ordinary course of business (excluding, in all events, the Disposition of accounts receivable pursuant to exceed any factoring or receivables securitization agreement or arrangement);
(l) sale or Disposition of immaterial Equity Interests to qualified directors where required by applicable law or to satisfy other similar requirements of applicable law with respect to the greater ownership of $150 million Equity Interests;
(m) any trade-in of equipment or other Property in exchange for other equipment or other replacement Property;
(n) the unwinding of any Hedging Agreement permitted hereunder pursuant to its terms;
(o) surrender or waiver of contractual rights and 5% settlement or waiver of Total Assets at contractual or litigation claims in the time ordinary course of business and consistent with past practice;
(p) (i) Dispositions of Qualified Stock in connection with settling, in accordance with its terms, any Permitted Convertible Indebtedness incurred in compliance with Section 6.01 and (ii) (A) the unwinding or terminating of any Permitted Warrant Transaction by the Borrower, (B) the unwinding or terminating of any Permitted Bond Hedge Transaction and (C) the payment of (x) cash interest pursuant to Section 6.09(a)(ii) or (y) cash in lieu of fractional shares pursuant to Section 6.09(a)(iii), and in each case of the receipt of such Designated Non-cash Consideration foregoing clauses (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 of (aA), (bB) and (cC), the performance by the Borrower and/or any Subsidiary thereof of such Person’s obligations thereunder; and
(q) abovethe Envigo Israel Sale. Subject to the Specified Guarantor Release Provision, be deemed to be cash for the purposes extent the requisite Lenders under the applicable provisions set forth in Section 11.02(b) waive the provisions of this provision Section 6.06, with respect to the sale of any Collateral, or for purposes any Collateral is sold as permitted by this Section 6.06, such Collateral (unless sold to a Company) shall be sold free and clear of the second paragraph of Liens created by the Security Documents without any further action by or consent from Administrative Agent, Collateral Agent or any Lender, and, so long as Borrower shall have previously provided to the Collateral Agent and the Administrative Agent such certifications or documents as the Collateral Agent and/or the Administrative Agent shall reasonably request in order to demonstrate compliance with this Section 4.10; andSection 6.06, the Collateral Agent shall take all actions it deems necessary or reasonable in order to effect the foregoing.
Appears in 1 contract
Samples: Credit Agreement (Inotiv, Inc.)
Asset Sales. The Company shall will not, and shall will not permit any of its Restricted Subsidiaries to, consummate an Asset Sale unless unless:
(i1) the Company (or the applicable Restricted such Subsidiary, as the case may be, ) receives consideration (including by way of relief from, or by any other Person assuming responsibility for, any liabilities, contingent or otherwise) at the time of such the Asset Sale at least equal to the fair market value (as determined at the time of the assets sold or otherwise disposed of (contractually agreeing to such Asset Sale), as determined in good faith by the Company), of the assets or Capital Stock issued or sold or otherwise disposed of; and
(ii2) at least 75% of the consideration received in the Asset Sale by the Company or the Restricted Subsidiary, as the case may be, from such Asset Sale shall be Subsidiary is in the form of cash or Cash Equivalents; provided that . For purposes of clause (2) above, the amount of:
of (ai) [reserved] any liabilities (as shown on the Company’s or such Restricted the applicable Subsidiary’s most recent balance sheet or in the footnotes theretonotes thereto or, or if incurred or accrued subsequent to the date of such balance sheet, such liabilities that would have been shown reflected on the Company’s consolidated balance sheet or such Restricted Subsidiary’s balance or in the footnotes thereto if such incurrence or accrual had taken place on or prior to the date of such balance sheet, as determined in good faith by the Company) of the Company or any such Restricted Subsidiary (other than liabilities that are by their terms subordinated to the NotesNotes or the Guarantees) that are assumed by the transferee of any such assets; assets and from which the Company and all Subsidiaries have been validly released by all creditors in writing, (bii) any securities, notes or other obligations 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 the receipt thereof or Cash Equivalents (to the extent of the cash or Cash Equivalents received); ) within 180 days following the closing of such Asset Sale, and (ciii) any Designated Non-cash Non−cash Consideration received by the Company or any of its Restricted Subsidiaries in such Asset Sale having an aggregate fair market valuevalue (as determined in good faith by the Board of Directors of the Company), taken together with all other Designated Non-cash Non−cash Consideration received pursuant to this clause (ciii) after December 14, 2010 that is at that time outstanding, not to exceed the greater of $150 2.5 million and 5% 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 Non−cash Consideration being measured at the time received and without giving effect to subsequent changes in value), shall, in each of (a), (b) and (c) above, shall be deemed to be cash for the purposes of this provision or paragraph and for purposes no other reason. Within 365 days after the receipt of any Net Proceeds from an Asset Sale, the Company (or, if applicable, the Subsidiary) may apply those Net Proceeds at its option:
(1) solely to the extent the assets disposed of in such Asset Sale was ABL Collateral, to reduce obligations, and correspondingly reduce commitments, under the ABL Facility;
(2) to reduce obligations under other Indebtedness of the second 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 or such Guarantor shall so reduce Obligations under Indebtedness that rank pari passu with the Notes or a related Guarantee (other than Secured Indebtedness), it will equally and ratably reduce Obligations under the Notes by making, or causing the Company to make, an offer (in accordance with the procedures set forth below for an Asset Sale Offer (as defined below) to all Holders to purchase at a price equal to 100% of the principal amount thereof, plus accrued and unpaid interest, if any, on the pro rata principal amount of Notes), in each case, other than Indebtedness owed to the Company or an Affiliate of the Company;
(3) solely to the extent the assets disposed of in such Asset Sale were property securing Indebtedness, to reduce obligations under such Secured Indebtedness (and if such Indebtedness is revolving in nature, to correspondingly reduce commitments thereunder);
(4) solely to the extent the assets disposed of in such Asset Sale were assets of a Subsidiary that is not a Guarantor, to reduce Indebtedness of such Subsidiary that is not a Guarantor (other than Indebtedness owed to the Company or an Affiliate of the Company);
(5) 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 Subsidiary owning an amount of the Capital Stock of such business such that such business constitutes a Subsidiary, (B) capital expenditures or (C) an investment in other non-current assets (other than Cash Equivalents, in the case of each of (A), (B) and (C), in each case (x) used or useful in a Permitted Business or (y) to replace the businesses, properties and/or assets that are the subject of such Asset Sale); and/or
(6) any combination of the foregoing; provided that, in the case of clause (5) above, a binding commitment shall be treated as a permitted application of the Net Proceeds from the date of such commitment so long as the Company, or such other Subsidiary enters into such commitment with the good faith expectation that such Net Proceeds will be applied to satisfy such commitment within 180 days of such commitment (an “Acceptable Commitment”); provided further that if any Acceptable Commitment is later cancelled or terminated for any reason before such Net Proceeds are applied, then such Net Proceeds shall constitute Excess Proceeds. Any Net Proceeds from an Asset Sale not applied or invested in accordance with the preceding paragraph within the time periods set forth above shall constitute “Excess Proceeds.” Pending the final application of any Net Proceeds, the Company or the applicable Subsidiary may temporarily reduce revolving credit borrowings or otherwise invest the Net Proceeds in any manner that is not prohibited by this Indenture. When the aggregate amount of Excess Proceeds exceeds $10 million, the Company or the applicable Subsidiary will, within twenty (20) Business Days, make an offer (an “Asset Sale Offer”) to all Holders and holders of Indebtedness that ranks pari passu with the Notes and contains provisions similar to those set forth in this Section 4.18 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 the Notes and such other Indebtedness that ranks pari passu with the Notes that may be purchased out of the Excess Proceeds. The offer price in any Asset Sale Offer will be equal to 100% of the principal amount thereof, plus accrued and unpaid interest, if any, to (but not including) the date of purchase, and will be payable in cash. If any Excess Proceeds remain after consummation of an Asset Sale Offer, the Company or the applicable Subsidiary may use those Excess Proceeds for any purpose not otherwise prohibited by this Indenture. If the aggregate principal amount of Notes tendered into such Asset Sale Offer exceeds the amount of Excess Proceeds, the Notes to be purchased will be selected on a pro rata basis and in accordance with the Applicable Procedures. Upon completion of each Asset Sale Offer, the amount of Excess Proceeds hereunder will be reset at zero. To the extent Excess Proceeds exceed the outstanding aggregate principal amount of the Notes (and, if required by the terms thereof, all Indebtedness that ranks pari passu with the Notes), the Company need only make an Asset Sale Offer up to the outstanding aggregate principal amount of Notes (and any such Indebtedness that ranks pari passu with the Notes), and any additional Excess Proceeds will not be subject to this covenant and will be permitted to be used for any purpose otherwise permitted hereunder in the Company’s discretion. Not later than twenty (20) Business Days after the date upon which the aggregate amount of Excess Proceeds exceeds $10 million, the Company shall deliver to the Trustee an Officer’s Certificate as to (i) the amount of the Excess Proceeds, (ii) the allocation of the Net Proceeds from the Asset Sales pursuant to which such Asset Sale Offer is being made and (iii) the compliance of such allocation with the provisions of this Section 4.10; and4.18. Upon the expiration of the period for which the Asset Sale Offer remains open (the “Offer Period”), the Company shall deliver to the Trustee for cancellation the Notes or portions thereof that have been properly tendered to and are to be accepted by the Company. No later than 11:00 a.m. (New York City time) on the date of purchase, the Company shall deposit with the Trustee (or a Paying Agent, if not the Trustee) the purchase price for the tendered Notes and the Trustee (or a Paying Agent, if not the Trustee) shall, on the date of purchase, mail or deliver payment to each tendering Holder in the amount of the purchase price. In the event that the Excess Proceeds delivered by the Company to the Trustee is greater than the purchase price of the Notes tendered, the Trustee shall deliver the excess to the Company immediately after the expiration of the Offer Period for application in accordance with this Section 4.18. Holders electing to have a Note purchased shall be required to surrender the Note, with the form entitled “Option of Holder to Elect Purchase” attached to the Note duly completed, 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 Xxxxxx is withdrawing his election to have such Note purchased. If at the end 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, 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). Notices of an Asset Sale Offer shall be mailed by the Company by first class mail, postage prepaid, or otherwise delivered in accordance with the applicable procedures of DTC. If any Note is to be purchased in part only, any notice of purchase that relates to such Security shall state the portion of the principal amount thereof that is to be purchased. The Asset Sale Offer shall remain open for a period of 20 Business Days following its commencement and no longer, except to the extent that a longer period is required by applicable law. If the date of purchase is on or after a Record Date and on or before the related Interest Payment Date, any accrued and unpaid interest, up to but excluding the date of purchase, 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
Asset Sales. The Company shall will not, and shall will not permit any of its Restricted Subsidiaries to, consummate an Asset Sale unless unless:
(iA) the Company (or the applicable Restricted such Subsidiary, as the case may be, ) receives consideration (including by way of relief from, or by any other Person assuming responsibility for, any liabilities, contingent or otherwise) at the time of such the Asset Sale at least equal to the fair market value (as determined at the time of the assets sold or otherwise disposed of (contractually agreeing to such Asset Sale), as determined in good faith by the Company), of the assets or Common Stock issued or sold or otherwise disposed of; and
(iiB) at least 75% of the consideration received in the Asset Sale by the Company or the Restricted Subsidiary, as the case may be, from such Asset Sale shall be Subsidiary is in the form of cash or Cash Equivalents; provided that . For purposes of clause (B) above, the amount of:
of (ai) any liabilities (as shown on the Company’s or such Restricted the applicable Subsidiary’s most recent balance sheet or in the footnotes theretonotes thereto or, or if incurred or accrued subsequent to the date of such balance sheet, such liabilities that would have been shown reflected on the Company’s consolidated balance sheet or such Restricted Subsidiary’s balance or in the footnotes thereto if such incurrence or accrual had taken place on or prior to the date of such balance sheet, as determined in good faith by the Company) of the Company or any such Restricted Subsidiary (other than liabilities that are by their terms subordinated to the Notes) that are assumed by the transferee of any such assets; assets and from which the Company and all Subsidiaries have been validly released by all creditors in writing, (bii) any securities, notes or other obligations 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 the receipt thereof or Cash Equivalents (to the extent of the cash or Cash Equivalents received); ) within 180 days following the closing of such Asset Sale, and (ciii) any Designated Non-cash Cash Consideration received by the Company or any of its Restricted Subsidiaries in such Asset Sale having an aggregate fair market valuevalue (as determined in good faith by the Board of Directors of the Company), taken together with all other Designated Non-cash Cash Consideration received pursuant to this clause (ciii) after December 14, 2010 that is at that time outstanding, not to exceed the greater of $150 2.5 million and 5% 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 Cash Consideration being measured at the time received and without giving effect to subsequent changes in value), shall, in each of (a), (b) and (c) above, shall be deemed to be cash for the purposes of this provision or paragraph and for purposes no other reason. Within 365 days after the receipt of any Net Proceeds from an Asset Sale, the Company (or, if applicable, the Subsidiary) may apply those Net Proceeds at its option:
(1) to reduce obligations under other Indebtedness of the second paragraph Company that ranks pari passu in right of payment with this Note (provided that if the Company shall so reduce obligations under Indebtedness that rank pari passu in right of payment with this Note (other than secured Indebtedness), it will equally and ratably reduce obligations under this Note by making, or causing the Company to make, an offer to purchase (in accordance with the procedures set forth below for an Asset Sale Offer (as defined below) to all Holders of this Note and any other Notes issued pursuant to the Purchase Agreement at a price equal to 100% of the principal amount thereof, plus accrued and unpaid interest, if any, on the pro rata principal amount of this Note and all other Notes issued pursuant to the Purchase Agreement), in each case, other than Indebtedness owed to the Company or an Affiliate of the Company;
(2) solely to the extent the assets disposed of in such Asset Sale were property securing Indebtedness permitted to be incurred under Section 4.1010(b), to reduce obligations under such secured Indebtedness (and if such Indebtedness is revolving in nature, to correspondingly reduce commitments thereunder);
(3) to make (i) 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 Subsidiary owning an amount of the Capital Stock of such business such that such business constitutes a Subsidiary, (ii) capital expenditures, (iii) general working capital including hiring, compensating and otherwise providing for additional employees of the Company or a Subsidiary, or (iv) an investment in other non-current assets (other than Cash Equivalents, in the case of each of (i), (ii), (iii) and (iv), in each case (x) used or useful in a Permitted Business or (y) to replace the businesses, properties and/or assets that are the subject of such Asset Sale); and/or
(4) any combination of the foregoing. provided that, in the case of clause (3) above, a binding commitment shall be treated as a permitted application of the Net Proceeds from the date of such commitment so long as the Company, or such other Subsidiary enters into such commitment with the good faith expectation that such Net Proceeds will be applied to satisfy such commitment within 180 days of such commitment (an “Acceptable Commitment”); provided further that if any Acceptable Commitment is later cancelled or terminated for any reason before such Net Proceeds are applied, then such Net Proceeds shall constitute Excess Proceeds. Any Net Proceeds from an Asset Sale not applied or invested in accordance with the preceding paragraph within the time periods set forth above shall constitute “Excess Proceeds.” Pending the final application of any Net Proceeds, the Company or the applicable Subsidiary may temporarily reduce revolving credit borrowings or otherwise invest the Net Proceeds in any manner that is not prohibited by this Note. When the aggregate amount of Excess Proceeds exceeds $15 million, the Company or the applicable Subsidiary will, within twenty (20) Business Days, make an offer (an “Asset Sale Offer”) to the Holder and all holders of Indebtedness that ranks pari passu in right of payment with the Notes (including any Notes issued under the Purchase Agreement) and contains provisions similar to those set forth in this Section 10(e) 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 this Note and such other Indebtedness that ranks pari passu in right of payment with this Note that may be purchased out of the Excess Proceeds. The offer price in any Asset Sale Offer will be equal to 100% of the principal amount thereof, plus accrued and unpaid interest, if any, to (but not including) the date of purchase, and will be payable in cash. If any Excess Proceeds remain after consummation of an Asset Sale Offer, the Company or the applicable Subsidiary may use those Excess Proceeds for any purpose not otherwise prohibited by this Note. If the aggregate principal amount of Notes tendered into such Asset Sale Offer exceeds the amount of Excess Proceeds, the Notes to be purchased will be selected on a pro rata basis and in accordance with the Applicable Procedures. Upon completion of each Asset Sale Offer, the amount of Excess Proceeds hereunder will be reset at zero. To the extent Excess Proceeds exceed the outstanding aggregate principal amount of the Notes (and, if required by the terms thereof, all Indebtedness that ranks pari passu with the Notes), the Company need only make an Asset Sale Offer up to the outstanding aggregate principal amount of Notes (and any such Indebtedness that ranks pari passu with the Notes), and any additional Excess Proceeds will not be subject to this covenant and will be permitted to be used for any purpose otherwise permitted hereunder in the Company’s discretion. Upon the expiration of the period for which the Asset Sale Offer remains open (the “Offer Period”), the Company shall cancel this Note or portions thereof that have been properly tendered to and are to be accepted by the Company in accordance with the procedures of the Depositary. On the date of purchase, the Company shall deliver payment to each tendering Holder in the amount of the purchase price in accordance with the procedures of the Depositary. Holders electing to have a Note purchased shall be required to surrender the Note, with the form entitled “Option of Holder to Elect Purchase” attached to this Note as Schedule 1, duly completed, to the Company at the address specified in the notice at least three Business Days prior to the purchase date. A Holder shall be entitled to withdraw its election if the Company receives not later than one Business Day prior to the purchase date, a telegram, telex, facsimile transmission or letter setting forth the name of the Holder, the principal amount of the Note which was delivered by the Holder for purchase and a statement that such Holder is withdrawing his election to have such Note purchased. If at the end of the Offer Period more Notes 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 Company, on a pro rata basis, by lot or by such other method as the Company shall deem fair and appropriate (and in such manner as complies with applicable legal requirements). Upon the purchase of an interest in this Global Note, the Company or the custodian at the direction of the Company, shall make a notation on such Global Note as to the reduction in the principal amount represented thereby. Notices of an Asset Sale Offer shall delivered in accordance with the applicable procedures of DTC. If any Note is to be purchased in part only, any notice of purchase that relates to such Note shall state the portion of the principal amount thereof that is to be purchased. The Asset Sale Offer shall remain open for a period of at least 20 Business Days following its commencement. If the date of purchase is on or after a Regular Record Date and on or before the related Interest Payment Date, any accrued and unpaid interest, up to but excluding the date of purchase, shall be paid to the Person in whose name a Note is registered at the close of business on such Regular Record Date, and no additional interest shall be payable to a Holder who tender Notes pursuant to the Asset Sale Offer.
Appears in 1 contract
Asset Sales. The Company shall notwill not consummate, and shall will not permit any of its Restricted Subsidiaries toto consummate, consummate an Asset Sale unless unless:
(i1) the Company or the applicable any of its Restricted Subsidiary, as the case may be, Subsidiaries receives consideration at the time of such the Asset Sale at least equal to the fair market value (to be determined on the date of contractual agreement to such Asset Sale by the parties thereto) of the assets or Equity Interests issued or sold or otherwise disposed of of; and
(as determined in good faith by the Company); (ii2) at least 75% of the aggregate consideration received by the Company or and its Restricted Subsidiaries in the Restricted Subsidiary, as the case may be, from such Asset Sale shall be and all other Asset Sales, on a cumulative basis, since May 23, 2017 is in the form of cash or Cash Equivalents; provided that . For purposes of this provision, each of the amount offollowing will be deemed to be cash:
(aA) any liabilities (liabilities, as shown on the Company’s or such Restricted Subsidiary’s most recent balance sheet or in the footnotes thereto, or if incurred or accrued subsequent to the date of such consolidated balance sheet, such liabilities that would have been shown on the Company’s or such Restricted Subsidiary’s balance or the footnotes thereto if such incurrence or accrual had taken place on the date of such balance sheet, as determined by the Company) of the Company or any such Restricted Subsidiary (other than contingent liabilities and liabilities that are by their terms subordinated to the NotesNotes or any Subsidiary Guarantees) that are assumed by the transferee of any such assets; assets pursuant to a novation agreement that releases the Company or such Restricted Subsidiary from further liability;
(bB) any securities, notes or other obligations received by the Company or any such Restricted Subsidiary from in such transferee transaction that are within 180 days after the Asset Sale (subject to ordinary settlement periods), converted by the Company or such Restricted Subsidiary into cash within 180 days of the receipt thereof (or Cash Equivalents, to the extent of the cash received); and or Cash Equivalents received in that conversion;
(cC) any Designated Non-cash Consideration received by the Company or any of its Restricted Subsidiaries in such Asset Sale having an Sale; provided that the aggregate fair market valuevalue 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 (cC) after December 14, 2010 that less the amount of Net Proceeds previously realized in cash or Cash Equivalents from prior Designated Non-cash Consideration is at that time outstanding, not to exceed less than the greater of $150 million and 5(x) 5.0% of Total 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)) and (y) $50.0 million; and
(D) any Capital Stock, shallassets, property or capital or other expenditure of the kind referred to in each of clauses (a2), (b3) or (4) of the next paragraph. Within 365 days after the receipt of any Net Proceeds from an Asset Sale the Company or any of its Restricted Subsidiaries may apply such Net Proceeds (or enter into a definitive agreement for such application within such 365-day period, provided that such application occurs within 180 days after the end of such 365-day period):
(1) to repay, repurchase, redeem or defease any Senior Indebtedness of the Company or its Restricted Subsidiaries (or to make an offer to repay, repurchase, redeem or defease any such Indebtedness; provided that such repayment, repurchase, redemption or defeasance or offer for repayment, repurchase, redemption or defeasance closes within 45 days after the end of such 365-day period);
(2) to acquire all or substantially all of the properties or assets of, or any Capital Stock of, another Permitted Business, if, after giving effect to any such acquisition of Capital Stock, the Permitted Business is or becomes a Restricted Subsidiary of the Company;
(3) to make a capital expenditure in 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
(c5) aboveany combination of the foregoing. Pending the final application of any Net Proceeds, be deemed to be cash for the purposes of Company or any Restricted Subsidiary may invest the Net Proceeds in any manner that is not prohibited by this provision Indenture. Any Net Proceeds from Asset Sales that are not applied or for purposes of invested as provided in the second paragraph of this Section 4.10 will constitute “Excess Proceeds.” When the aggregate amount of Excess Proceeds exceeds $50.0 million (or at an earlier time, at the option of the Issuers), within ten days thereof, the Company will make an offer (an “Asset Sale Offer”) to all Holders of Notes and all holders of other Indebtedness that is pari passu with the Notes containing provisions similar to those set forth in this Indenture with respect to offers to purchase or redeem such Indebtedness with the proceeds of sales of assets, to purchase or redeem, on a pro rata basis, the maximum principal amount of Notes and such other pari passu Indebtedness that may be purchased or redeemed out of the Excess Proceeds. The offer price in any Asset Sale Offer will be equal to 100% of the principal amount, plus accrued and unpaid interest, if any, thereon to the date of purchase or redemption, subject to the right of Holders of Notes on the relevant record date to receive interest due on an Interest Payment Date that is on or prior to the purchase or redemption date, and will be payable in cash. If any Excess Proceeds remain after consummation of an Asset Sale Offer, the Company or any Restricted Subsidiary may use those Excess Proceeds for any purpose not otherwise prohibited by this Indenture. If the aggregate principal amount of Notes tendered into such Asset Sale Offer exceeds the amount of Excess Proceeds allocated to the purchase of Notes, then Notes will be purchased on a pro rata basis (or, in the case of Global Notes, the Notes represented thereby will be purchased in accordance with DTC’s prescribed method), based on the amounts tendered. Upon completion of each Asset Sale Offer, the amount of Excess Proceeds will be reset at zero. In making an Asset Sale Offer, the Company will comply with the applicable requirements of Rule 14e-1 under the Exchange Act and other securities laws and regulations. To the extent that the provisions of any securities laws or regulations conflict with the provisions of this Section 4.10; and, the Company will comply with the applicable securities laws and regulations and will not be deemed to have breached its obligations under the provisions of this Section 4.10 by virtue of such compliance.
Appears in 1 contract
Asset Sales. (a) The Company shall will not, and shall will not permit any of its Restricted Subsidiaries to, consummate an Asset Sale unless unless:
(i1) 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 (as determined in good faith by the Company); (ii) at least 75% of the consideration received by the Company or the Restricted Subsidiary, as the case may be, from ) receives consideration at the time of the Asset Sale at least equal to the Fair Market Value (measured as of the date of the definitive agreement with respect to such Asset Sale) of the assets or Equity Interests issued or sold or otherwise disposed of; and
(2) at least 75% of the consideration received in the Asset Sale shall be by the Company or such Restricted Subsidiary is in the form of cash or Cash Equivalents; provided provided, however, to the extent that any disposition in such Asset Sale was of Collateral, any consideration received is pledged as Collateral under the amount ofSecurity Documents promptly after receipt of such non-cash consideration by the Company or such Restricted Subsidiary, to the extent required by and, in accordance with the requirements set forth in this Indenture and the Security Documents. For purposes of this Section 4.20(a), each of the following will be deemed to be cash:
(aA) any liabilities (liabilities, as shown on the Company’s or such Restricted Subsidiary’s most recent consolidated balance sheet or in the footnotes thereto(or, or if incurred or accrued subsequent to the date of such balance sheet, such liabilities that would have been shown on the Company’s or such Restricted Subsidiary’s balance or the footnotes thereto if such incurrence or accrual had taken place on after the date of such balance sheet, as determined by the Company) would have been shown on such consolidated balance sheet had they been incurred on or prior to its date), of the Company or any such Restricted Subsidiary (other than contingent liabilities and liabilities that are by their terms subordinated to the NotesNotes or any Note Guarantee) that are assumed by the transferee of any such assets; (b) assets or any securitiesother Person, notes or other obligations received by than the Company or any such Restricted Subsidiary from such transferee one of its Subsidiaries, pursuant to a customary novation or indemnity agreement that are converted by releases the Company or such Restricted Subsidiary into cash within 180 days of the receipt thereof from or indemnifies it against further liability;
(to the extent of the cash received); and (cB) any Designated Non-cash Consideration securities, notes, or other obligations received by the Company or any of its Restricted Subsidiaries from such transferee that are, 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; and
(C) any stock or assets of the kind referred to in clauses (2) or (4) of Section 4.20(b); and
(b) Within 360 days after the receipt of any Net Proceeds from an Asset Sale, the Company or any Restricted Subsidiary may apply such Net Proceeds:
(1) to repay Indebtedness and other Obligations under a Credit Facility; provided that, if the Indebtedness repaid is revolving credit Indebtedness, to permanently reduce commitments with respect thereto in an amount equal to the principal amount so repaid;
(2) to acquire all or substantially all of the assets of, or any Capital Stock of, a Permitted Business or one or more Persons primarily engaged in a Permitted Business, if, after giving effect to any such acquisition of Capital Stock, such Permitted Business or Person, as the case may be, is or becomes a Restricted Subsidiary of the Company;
(3) to make a capital expenditure; or
(4) to acquire other assets that are not classified as current assets under GAAP and that are used or useful in a Permitted Business; provided that the assets (including Voting Stock) acquired with the Net Cash Proceeds of a disposition of Collateral are pledged as Collateral under the Security Documents promptly after receipt of such assets by the Company or one of its Restricted Subsidiaries, to the extent required by and in accordance with the Security Documents. Pending the final application of any Net Proceeds, the Company or any Restricted Subsidiary may apply the Net Proceeds to temporarily reduce revolving credit borrowings or otherwise invest the Net Proceeds in any manner that is not prohibited by this Indenture. Any Net Proceeds from Asset Sales that are not applied or invested as provided above in this Section 4.20(b) will constitute “Excess Proceeds.” When the aggregate amount of Excess Proceeds exceeds $7.5 million, the Company will, within five days thereof, make an offer (an “Asset Sale Offer”) to all Holders of Notes and all holders of other Indebtedness that is pari passu with the Notes containing provisions similar to those set forth in this Indenture with respect to offers to purchase, prepay or redeem with the proceeds of sales of assets, to purchase, prepay or redeem the maximum amount of principal of, and premium, if any, and interest and Additional Interest, if any, on, the Notes and such other pari passu Indebtedness that may be purchased, prepaid or redeemed out of the Excess Proceeds (after deducting therefrom all fees and expenses incurred in connection therewith).
(c) The offer price for the Notes in any Asset Sale Offer will be equal to 100% of the principal amount plus accrued and unpaid interest and Additional Interest, if any, to the date of purchase, prepayment or redemption, subject to the rights of Holders of Notes on the relevant record date to receive interest due on the relevant Interest Payment Date, and will be payable in cash.
(d) If any Excess Proceeds remain after consummation of an Asset Sale Offer, the Company may use those Excess Proceeds for any purpose not otherwise prohibited by this Indenture.
(e) If the sum of the aggregate amount of principal of, and premium, if any, interest and Additional Interest, if any, on, the Notes and other pari passu Indebtedness tendered into (or required to be prepaid or redeemed in connection with) such Asset Sale having Offer plus the aggregate amount of all fees and expenses incurred in connection with such Asset Sale Offer and the purchase, prepayment or redemption of any such pari passu Indebtedness exceeds the amount of Excess Proceeds, the Trustee or the Registrar will, after deducting from such Excess Proceeds an aggregate fair market valueamount equal to all such fees and expenses, taken together select the Notes to be purchased on a pro rata basis with all any such pari passu Indebtedness (except that any Notes represented in global form will be selected by such method as DTC or the applicable Depositary, as the case may be, or its nominee may require), based on the amounts tendered or required to be prepaid or redeemed (including, amounts required to be paid in respect of principal, premium, if any, interest and Additional Interest, if any), with such adjustments as may be deemed appropriate so that Notes are repurchased in denominations of $2,000 in principal amount and integral multiples of $1,000 in principal amount in excess thereof and so that any such pari passu Indebtedness issued in specified authorized denominations is only repurchased in such authorized denominations or so that any unrepurchased portion of a Note or such pari passu Indebtedness that is repurchased in part is an authorized denomination. Upon completion of each Asset Sale Offer, the amount of Excess Proceeds will be reset at zero.
(f) The Company will not and will not permit any of its Restricted Subsidiaries to, enter into or suffer to exist any agreement (other Designated Non-cash Consideration received than any agreement governing Credit Facilities for Indebtedness permitted to be incurred pursuant to this clause (c1) after December 14, 2010 that is at that time outstanding, not to exceed the greater of $150 million and 5% 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, in each of (a), (b) and (c) above, be deemed to be cash for the purposes of this provision or for purposes of the second paragraph of Section 4.08 that would place any restriction of any kind (other than pursuant to law or regulation) on the ability of the Company to make an Asset Sale Offer.
(g) The Company will comply with the requirements of Rule 14e-1 under the Exchange Act and any other securities laws and regulations thereunder to the extent those laws and regulations are applicable in connection with each repurchase of Notes and any pari passu Indebtedness pursuant to an Asset Sale Offer. To the extent that the provisions of any securities laws or regulations conflict with the Asset Sale provisions of this Section 4.10; andIndenture, the Company will comply with the applicable securities laws and regulations and will not be deemed to have breached its obligations under the Asset Sale provisions of this Indenture by virtue of such compliance.
Appears in 1 contract
Asset Sales. (a) The Company Issuer shall not, and shall not permit any of its Restricted Subsidiaries to, to consummate an Asset Sale unless Sale, unless:
(i) the Company Issuer or the applicable 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 (such fair market value to be determined by the Issuer at the time of contractually agreeing to such Asset Sale) of the assets sold or otherwise disposed of (as determined in good faith by the Company)of; and
(ii) except in the case of a Permitted Asset Swap, at least 7575.0% of the consideration therefor received by the Company Issuer or the such Restricted Subsidiary, as the case may be, from such Asset Sale shall be is in the form of cash or Cash Equivalents; provided that the amount of:
(aA) any liabilities (as shown on the CompanyIssuer’s or such Restricted Subsidiary’s most recent balance sheet or in the footnotes thereto, or if incurred or accrued subsequent to ) of the date of such balance sheet, such liabilities that would have been shown on the Company’s Issuer or such Restricted Subsidiary’s balance or the footnotes thereto if such incurrence or accrual had taken place on the date of such balance sheet, as determined by the Company) of the Company or any such Restricted Subsidiary (other than liabilities that are by their terms subordinated to the Notes) , that are assumed by the transferee of any such assets; assets and for which the Issuer and all of its Restricted Subsidiaries have been validly released by all creditors in writing;
(bB) any securities, notes or other obligations or assets received by the Company Issuer or any such Restricted Subsidiary from such transferee that are converted by the Company Issuer or such Restricted Subsidiary into cash within 180 days of the receipt thereof Cash Equivalents (to the extent of the cash Cash Equivalents received)) within 180 days following the closing of such Asset Sale; and and
(cC) any Designated Non-cash Consideration received by the Company Issuer or any of its such Restricted Subsidiaries 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 (cC) after December 14, 2010 that is at that time outstanding, not to exceed the greater of (x) $150 50.0 million and 5(y) 3.25% of Total Assets at the time of the receipt of such Designated Non-cash Consideration (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 of (a), (b) and (c) above, shall be deemed to be cash Cash Equivalents for the purposes of this provision and for no other purpose.
(b) Within 450 days after the receipt of any Net Proceeds of any Asset Sale, the Issuer or for purposes such Restricted Subsidiary, at its option, may apply the Net Proceeds from such Asset Sale,
(i) to reduce:
(A) Obligations under Senior Indebtedness; or
(B) Obligations under the Notes and any other Senior Subordinated Indebtedness on a pro rata basis; provided that all reductions of or offers to reduce Obligations under the Notes shall be made as provided under Section 3.07 or through open-market purchases (to the extent such purchases are at or above 100.0% of the second paragraph principal amount thereof) or by making an offer (in accordance with the procedures set forth in Section 3.09 and Section 4.10(d) hereof) to all Holders to purchase their Notes at 100.0% of the principal amount thereof, plus the amount of accrued but unpaid interest, if any, on the amount of Notes to be repurchased; or
(C) If the assets subject of such Asset Sale are property or assets of a Restricted Subsidiary that is not a Guarantor, to permanently reduce Indebtedness of such Restricted Subsidiary that is not a Guarantor, other than Indebtedness owed to the Issuer or another Restricted Subsidiary; or
(ii) to make (A) an Investment in any one or more businesses, provided that such Investment in any business is in the form of the acquisition of Capital Stock and results in the Issuer 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, (B) capital expenditures or (C) acquisitions of other assets, in the case of each of (A), (B) and (C), used or useful in a Similar Business; or
(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 Issuer 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, (B) properties or (C) acquisitions of other assets that, in the case of each of (A), (B) and (C), replace the businesses, properties and/or assets that are the subject of such Asset Sale; provided that, in the case of clauses (ii) and (iii) above, a binding commitment entered into not later than such 450th day shall extend the period for such Investment or other payment for an additional 180 days after the end of such 450-day period so long as the Issuer or such other Restricted Subsidiary enters into such commitment with the good faith expectation that such Net Proceeds shall be applied to satisfy such commitment within 180 days of such commitment (an “Acceptable Commitment”) and, in the event any Acceptable Commitment is later cancelled or terminated for any reason before the Net Proceeds are applied in connection therewith, the Issuer or such Restricted Subsidiary enters into another Acceptable Commitment (a “Second Commitment”) within such 180-day period; provided, further, that (x) if any Second Commitment is later cancelled or terminated for any reason before such Net Proceeds are applied or (y) such Net Proceeds are not actually so invested or paid in accordance with clauses (ii) or (iii) above by the end of such 180-day period, then such Net Proceeds shall constitute Excess Proceeds on the date of such cancellation or termination, or such 180th day, as applicable.
(c) Any Net Proceeds from the Asset Sale that are not invested or applied as provided and within the time period set forth in Section 4.10(b) hereof shall be deemed to constitute “Excess Proceeds .” When the aggregate amount of Excess Proceeds exceeds $20.0 million, the Issuer shall make an offer to all Holders and, if required by the terms of any Indebtedness that is pari passu with the Notes (“Pari Passu Indebtedness”), to the holders of such Pari Passu Indebtedness (an “Asset Sale Offer”), to purchase the maximum aggregate principal amount of the Notes and such Pari Passu Indebtedness that is in an amount equal to at least $2,000, that may be purchased out of the Excess Proceeds at an offer price in cash in an amount equal to 100.0% of the principal amount thereof (or accreted value thereof, if less), plus accrued and unpaid interest, if any, to the date fixed for the closing of such offer, in accordance with the procedures set forth in this Indenture. The Issuer shall commence an Asset Sale Offer with respect to Excess Proceeds within ten Business Days after the date that Excess Proceeds exceed $20.0 million by delivering the notice required pursuant to the terms of this Indenture, with a copy to the Trustee. The Issuer may satisfy the foregoing obligations with respect to any Net Proceeds from an Asset Sale by making an Asset Sale Offer with respect to such Net Proceeds prior to the expiration of the relevant 450 days (or such longer period provided above) or with respect to Excess Proceeds of $20.0 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 Issuer may use any remaining Excess Proceeds for general corporate purposes, subject to other covenants contained in this Indenture. If the aggregate principal amount of Notes or the Pari Passu Indebtedness surrendered by such holders thereof exceeds the amount of Excess Proceeds, the Trustee shall select the Notes and the Issuer shall select such Pari Passu Indebtedness to be purchased on a pro rata basis (with adjustments as needed for selection of authorized minimum denominations) based on the accreted value or principal amount of the Notes or such Pari Passu Indebtedness tendered. Upon completion of any such Asset Sale Offer, the amount of Excess Proceeds that resulted in the Asset Sale Offer shall be reset to zero.
(d) Pending the final application of any Net Proceeds pursuant to this Section 4.10, the holder of such Net Proceeds may apply such Net Proceeds temporarily to reduce Indebtedness outstanding under a revolving credit facility or otherwise invest such Net Proceeds in any manner not prohibited by this Indenture.
(e) The Issuer shall comply with the requirements of Rule 14e-1 under the Exchange Act and any other securities laws and regulations thereunder to the extent such laws or regulations are applicable in connection with the repurchase of the Notes pursuant to an Asset Sale Offer. To the extent that the provisions of any securities laws or regulations conflict with the provisions of this Indenture, the Issuer shall comply with the applicable securities laws and regulations and shall not be deemed to have breached its obligations described in this Indenture by virtue thereof. The provisions of this Section 4.10; and4.10 may be waived or modified with the written consent of the Holders of a majority in principal amount of the Notes then outstanding.
Appears in 1 contract
Samples: Senior Subordinated Notes Indenture (American Tire Distributors Holdings, Inc.)
Asset Sales. (a) The Company shall not, and shall not permit any of its the Restricted Subsidiaries to, to consummate an Asset Sale unless Sale, unless:
(i) the Company or the applicable 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 (such fair market value to be determined by the Company at the time of contractually agreeing to such Asset Sale) of the assets sold or otherwise disposed of (as determined in good faith by the Company); of;
(ii) except in the case of a Permitted Asset Swap, at least 75% of the consideration therefor, on a per transaction basis, received by the Company or the such Restricted Subsidiary, as the case may be, from such Asset Sale shall be is in the form of cash or Cash Equivalents; provided that the amount offollowing amounts shall be deemed to be Cash Equivalents for the purposes of this provision:
(aA) any liabilities (as shown on the Company’s or such Restricted Subsidiary’s most recent balance sheet or in the footnotes thereto, or or, if incurred or accrued increased subsequent to the date of such balance sheet, such liabilities that would have been shown on the Company’s or such Restricted Subsidiary’s balance sheet or in the footnotes thereto if such incurrence or accrual increase had taken place on or prior to the date of such balance sheet, as determined by the Company) of the Company or any such Restricted Subsidiary (Subsidiary, other than liabilities that are by their terms subordinated to the Notes) , that are assumed by the transferee of any such assets; assets and for which the Company and all of the Restricted Subsidiaries have been validly released by all applicable creditors or indemnified in writing;
(bB) any securities, notes or other obligations or assets received by the Company or any such Restricted Subsidiary from such transferee that are converted by the Company or such Restricted Subsidiary into cash within 180 days of the receipt thereof Cash Equivalents (to the extent of Cash Equivalents received) within 180 days following the cash received); and closing of such Asset Sale;
(cC) any Designated Non-cash Consideration received by the Company or any of its the Restricted Subsidiaries in such Asset Sale having an aggregate fair market value, taken together with all other Designated Non-cash Consideration received pursuant to this clause (cC) after December 14, 2010 that is at that time outstanding, not to exceed the greater of (i) $150 25.0 million and 5or (ii) 2.00% of Consolidated Total Assets at the time of the receipt of such Designated Non-cash Consideration (Consideration, with the fair market value of in each item of Designated Non-cash Consideration case being measured at the time received and without giving effect to subsequent changes in value; and
(D) any stock or assets of the kind referred to in clauses (A) or (C) of Section 4.10(b)(ii) hereof; and
(iii) if such Asset Sale involves the disposition of Collateral, the Issuer or such Guarantor has complied with the provisions of this Indenture and the Collateral Documents.
(b) Within 365 days after the receipt of any Net Proceeds of any Asset Sale, the Company or such Restricted Subsidiary, at its option, may apply the Net Proceeds from such Asset Sale,
(i) to reduce or offer to reduce Indebtedness as follows:
(A) if the assets subject to such Asset Sale constitute Collateral, to permanently repay any ABL Debt or to reduce (or offer to reduce, as applicable) Obligations under the Notes and any Additional Parity Debt on a pro rata basis, provided that all reductions of or offers to reduce Obligations under the Notes shall be made as provided under Section 3.07 hereof, through open-market purchases (to the extent such purchases are at or above 100% of the principal amount thereof plus accrued and unpaid interest, if any) or by making an offer (in accordance with the procedures set forth in Section 3.09 and Section 4.10(c) hereof) to all Holders to purchase their Notes at 100.0% of the principal amount thereof, plus the amount of accrued but unpaid interest, if any, on the amount of Notes to be repurchased;
(B) if the assets subject to such Asset Sale do not constitute Collateral, to reduce Obligations under Senior Indebtedness that is secured by a Lien which Lien is permitted by this Indenture; or
(C) if the assets subject to such Asset Sale do not constitute Collateral to permanently reduce (or offer to reduce) Obligations under other Senior Indebtedness (and to correspondingly reduce commitments with respect thereto), shallprovided that the Issuer shall equally and ratably reduce (or offer to reduce, as applicable) Obligations under the Notes and any Additional Parity Debt on a pro rata basis, provided that all reductions of or offers to reduce Obligations under the Notes shall be made as provided under Section 3.07 hereof, through open-market purchases (to the extent such purchases are at or above 100% of the principal amount thereof plus accrued and unpaid interest, if any) or by making an offer (in accordance with the procedures set forth in Section 3.09 and Section 4.10(c) hereof) to all Holders to purchase their Notes at 100.0% of the principal amount thereof, plus the amount of accrued but unpaid interest, if any, on the amount of Notes to be repurchased; or
(D) if the assets subject to such Asset Sale are the property or assets of a Restricted Subsidiary that is not the Issuer or a Guarantor, to permanently reduce Indebtedness of (i) such Restricted Subsidiary that is not the Issuer or a Guarantor, other than Indebtedness owed to the Company or another Restricted Subsidiary or (ii) the Issuer or a Guarantor; or
(ii) to make (A) an Investment in any one or more businesses, provided that such Investment in any business is in the form of the acquisition of Capital Stock and results in the Company or any of the Restricted Subsidiaries, as the case may be, owning an amount of the Capital Stock of such business such that it constitutes a Restricted Subsidiary, (B) capital expenditures or (C) acquisitions of other assets in the case of each of (A), (B) and (C) that are used or useful in a Similar Business; provided that the assets (including Capital Stock) acquired with the Net Proceeds of a disposition of Collateral are pledged as Collateral to the extent required under the Collateral Documents (except to the extent the Lien thereon is released in accordance with the terms of the Collateral Documents); or
(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 the Restricted Subsidiaries, as the case may be, owning an amount of the Capital Stock of such business such that it constitutes a Restricted Subsidiary, (b) properties or (c) acquisitions of other assets, in the case of each of (a), (b) and (c) that replace the businesses, properties and/or assets that are subject of such Asset Sale; provided that the assets (including Capital Stock) acquired with the Net Proceeds of a disposition of Collateral are pledged as Collateral to the extent required under the Collateral Documents (except to the extent the Lien thereon is released in accordance with the terms of the Collateral Documents); provided that, in the case of clauses (ii) and (iii) above, a binding commitment entered into not later than such 365th day shall extend the period for such Investment or other payment for an additional 180 days after the end of such 365-day period so long as the Company or such other Restricted Subsidiary enters into such commitment with the good faith expectation that such Net Proceeds will be applied to satisfy such commitment within 180 days of such commitment (an “Acceptable Commitment”) and, in the event any Acceptable Commitment is later canceled or terminated for any reason before the Net Proceeds are applied in connection therewith, then such Net Proceeds shall constitute Excess Proceeds.
(c) Any Net Proceeds from the Asset Sale that are not invested or applied as provided and within the time period set forth in Section 4.10(b) hereof shall be deemed to constitute “Excess Proceeds.” When the aggregate amount of Excess Proceeds exceeds $25.0 million, the Issuer shall make an offer to all Holders of the Notes and, if required by the terms of any Indebtedness that is pari passu with the Notes (“Pari Passu Indebtedness”), to the holders of such Pari Passu Indebtedness (an “Asset Sale Offer”), to purchase the maximum aggregate principal amount of the Notes and such Pari Passu Indebtedness that is in an amount equal to at least $2,000, that may be purchased out of the Excess Proceeds at an offer price in cash in an amount equal to 100.0% of the principal amount thereof (or accreted value thereof, if less), plus accrued and unpaid interest, if any, to the date fixed for the purposes closing of such offer, in accordance with the procedures set forth in this Indenture. The Issuer shall commence an Asset Sale Offer with respect to Excess Proceeds within ten Business Days after the date that Excess Proceeds exceed $25.0 million by delivering the notice required pursuant to the terms of this provision or for purposes Indenture, with a copy to the Trustee. The Issuer may satisfy the foregoing obligations with respect to any Net Proceeds from an Asset Sale by making an Asset Sale Offer with respect to such Net Proceeds prior to the expiration of the second paragraph relevant 365 days (or such longer period provided above) or with respect to Excess Proceeds of $25.0 million or less. To the extent that the aggregate amount of Notes and such Pari Passu Indebtedness tendered pursuant to an Asset Sale Offer is less than the Excess Proceeds, the Company or any of its Subsidiaries may use any remaining Excess Proceeds for general corporate purposes, subject to other covenants contained in this Indenture. If the aggregate principal amount of Notes or Pari Passu Indebtedness surrendered by such holders thereof exceeds the amount of Excess Proceeds, the Trustee shall select the Notes and the Issuer shall select such Pari Passu Indebtedness to be purchased on a pro rata basis (or pursuant to applicable depositary procedures) based on the accreted value or principal amount of the Notes or such Pari Passu Indebtedness tendered with adjustments as necessary so that no Notes or Pari Passu Indebtedness, as the case may be, will be repurchased in part in an unauthorized denomination. Additionally, the Issuer may, at its option, make an Asset Sale Offer using proceeds from any Asset Sale at any time after consummation of such Asset Sale. Upon completion of any such Asset Sale Offer, the amount of Excess Proceeds that resulted in the Asset Sale Offer shall be reset to zero (regardless of whether there are any remaining Excess Proceeds upon such completion). Upon consummation or expiration of any Asset Sale Offer, any remaining Net Proceeds shall not be deemed Excess Proceeds and the Issuer may use such Net Proceeds for any purpose not otherwise prohibited under this Indenture.
(d) Pending the final application of any Net Proceeds pursuant to this Section 4.10; and, the holder of such Net Proceeds may apply such Net Proceeds temporarily to reduce Indebtedness outstanding under a revolving credit facility or otherwise invest such Net Proceeds in any manner not prohibited by this Indenture.
(e) The Issuer shall comply with the requirements of Rule 14e-1 under the Exchange Act and any other securities laws and regulations thereunder to the extent such laws or regulations are applicable in connection with the repurchase of the Notes pursuant to an Asset Sale Offer. To the extent that the provisions of any securities laws or regulations conflict with the provisions of this Indenture, the Issuer shall comply with the applicable securities laws and regulations and shall not be deemed to have breached its obligations described in this Indenture by virtue thereof. The provisions of Section 3.09 hereof and this Section 4.10 may be waived or modified with the written consent of the Holders of a majority in principal amount of the Notes then outstanding.
Appears in 1 contract
Samples: Indenture (SunOpta Inc.)
Asset Sales. The Company (a) Parent shall not, and shall not permit any of its Restricted Subsidiaries to, consummate an Asset Sale unless Sale, unless:
(i1) the Company Parent or the applicable 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 (such fair market value to be determined on the date of the assets sold or otherwise disposed of (contractually agreeing to such Asset Sale), as determined in good faith by the CompanyIssuer, of the assets subject to such Asset Sale (including, for the avoidance of doubt, if such Asset Sale is a Permitted Asset Swap); and
(ii2) except in the case of a Permitted Asset Swap, at least 7575.0% of the consideration therefor, together with all other Asset Sales since the Issue Date (on a cumulative basis) received by the Company Parent or the such Restricted Subsidiary, as the case may be, from such Asset Sale shall be is in the form of cash or Cash Equivalents; provided that the amount of:
(ai) any liabilities (as shown on the CompanyParent’s or such Restricted Subsidiary’s most recent consolidated balance sheet or in the footnotes thereto, or if incurred or accrued subsequent to the date of such balance sheet, such liabilities that would have been shown reflected on the CompanyParent’s consolidated balance sheet or such Restricted Subsidiary’s balance 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 CompanyParent) of the Company Parent or any such Restricted Subsidiary (other than liabilities that are by their terms subordinated to the Notes) that are assumed by the transferee of any such assets; assets (bor are otherwise extinguished by the transferee in connection with the transactions relating to such Asset Sale) and for which Parent and all such Restricted Subsidiaries have been validly released;
(ii) any securities, notes or other obligations securities received by the Company Parent or any such Restricted Subsidiary from such transferee that are converted by the Company Parent or such Restricted Subsidiary into cash within 180 days of the receipt thereof or Cash Equivalents, or by their terms are required to be satisfied for cash or Cash Equivalents (to the extent of the cash or Cash Equivalents received), in each case, within 180 days following the closing of such Asset Sale;
(iii) Indebtedness of any Restricted Subsidiary that is no longer a Restricted Subsidiary as a result of such Asset Sale, to the extent that Parent and each other Restricted Subsidiary are released from any guarantee of payment of such Indebtedness in connection with such Asset Sale;
(iv) consideration consisting of Indebtedness of Parent (other than Subordinated Indebtedness) received from Persons who are not Parent or any Restricted Subsidiary; and and
(cv) any Designated Non-cash Consideration received by the Company Parent or any of its such Restricted Subsidiaries Subsidiary in such Asset Sale having an aggregate fair market valuevalue (as determined in good faith by the Issuer), taken together with all other Designated Non-cash Consideration received pursuant to this clause (cv) after December 14, 2010 that is at that time outstanding, not to exceed the greater of (x) $150 400.0 million and 5(y) 25.0% of Total Assets Pro Forma EBITDA of Parent (for the period of the most recently ended four fiscal quarters for which internal financial statements are available immediately preceding the calculation date) at the time of the receipt of such Designated Non-cash Consideration (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 (as determined in value), shall, in each of (a), (b) and (c) above, be deemed to be cash for the purposes of this provision or for purposes of the second paragraph of this Section 4.10; andgood faith by the
Appears in 1 contract
Asset Sales. The Company Borrower shall not, and shall not permit any of its Restricted Subsidiaries Designated Subsidiary to, consummate an Asset Sale unless Sale, unless
(ia) the Company Borrower or the applicable Restricted such Designated Subsidiary, as the case may be, receives consideration at the time of such Asset Sale at least equal to the fair market value Fair Market Value (as determined at the time of contractually agreeing to such Asset Sale) of the assets sold or otherwise disposed of of; and
(as determined in good faith by the Company); (iib) at least 75% of the consideration therefor received by the Company Borrower or the Restricted such Designated Subsidiary, as the case may be, from such Asset Sale shall be is in the form of cash or Cash Equivalents; provided that the amount of:
(ai) any liabilities Debt (as shown reflected on the Company’s or such Restricted SubsidiaryBorrower’s most recent balance sheet or in the footnotes thereto, or if incurred or accrued subsequent to the date of such consolidated balance sheet, such liabilities that would have been shown on the Company’s or such Restricted Subsidiary’s balance or the footnotes thereto if such incurrence or accrual had taken place on the date of such balance sheet, as determined by the Company) of the Company Borrower or any such Restricted Subsidiary (other MDA Party, other than liabilities that are Debt which is by their its terms subordinated to the Notes) Security, that are is assumed by the transferee of any such assets; assets (bor are otherwise extinguished in connection with the transactions relating to such Asset Sale) and for which the Borrower and all such other MDA Parties have been validly released by all applicable creditors in writing;
(ii) any securities, notes or other obligations or assets received by the Company Borrower or any such Restricted Subsidiary other MDA Party from such transferee that are converted by the Company Borrower or such Restricted Subsidiary other MDA Party into cash within 180 days of the receipt thereof or Cash Equivalents, or by their terms are required to be satisfied for cash or Cash Equivalents (to the extent of the cash or Cash Equivalents received); and , in each case, within 180 days following the closing of such Asset Sale;
(ciii) any Designated Non-cash Consideration received by the Company or any of its Restricted Subsidiaries MDA Party in connection with such Asset Sale having an Sale; provided that the aggregate fair market valueFair Market Value of such Designated Non-cash Consideration, taken together with the Fair Market Value at the time of receipt of all other Designated Non-cash Consideration previously received by the MDA Parties pursuant to this clause paragraph (ciii) after December 14, 2010 that is at that time outstanding, not to exceed less the greater amount of $150 million Net Cash Proceeds previously realized in cash and 5% Cash Equivalents from the disposition of Total Assets at the time of the receipt of such prior Designated Non-cash Consideration Consideration, does not exceed 2% of Consolidated Total Assets at such time (with the fair market value 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), shallwill, in each of (a), (b) and (c) abovecase, be deemed to be cash or Cash Equivalents for the purposes of this provision or for purposes of the second paragraph of this Section 4.10; andpurpose.
Appears in 1 contract
Samples: Restated Credit Agreement (Maxar Technologies Ltd.)
Asset Sales. The Company (a) Holdings III shall not, and shall not permit any of its Restricted Subsidiaries to, consummate cause, make or suffer to exist an Asset Sale unless Sale, unless:
(i1) the Company Holdings III or the applicable 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 (as determined in good faith by the Company); (ii) a Permitted Asset Swap, at least 75% of the consideration therefor received by the Company Holdings III or the such Restricted Subsidiary, as the case may be, from such Asset Sale shall be is in the form of cash or Cash Equivalents; provided that the amount of:
(aA) any liabilities (as shown on the CompanyHoldings III’s or such Restricted Subsidiary’s most recent balance sheet or in the footnotes thereto, or if incurred or accrued subsequent to the date ) of such balance sheet, such liabilities that would have been shown on the Company’s Holdings III or such Restricted Subsidiary’s balance or the footnotes thereto if such incurrence or accrual had taken place on the date of such balance sheet, as determined by the Company) of the Company or any such Restricted Subsidiary (other than liabilities that are by their terms subordinated to the Notes) , that are assumed by the transferee of any such assets; assets and for which Holdings III and all of its Restricted Subsidiaries have been validly released by all creditors in writing,
(bB) any securities, notes or other obligations securities received by the Company Holdings III or any such Restricted Subsidiary from such transferee that are converted by the Company Holdings III or such Restricted Subsidiary into cash within 180 days of the receipt thereof (to the extent of the cash received); and ) within 180 days following the closing of such Asset Sale, and
(cC) any Designated Non-cash Consideration received by the Company Holdings III or any of its such Restricted Subsidiaries 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) after December 14, 2010 that is at that time outstanding, not to exceed the greater of $150 million and 52.5% of Total Assets at the time of the receipt of such Designated Non-cash Consideration (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 for purposes of this provision and for no other purpose.
(b) Within 450 days after the receipt of any Net Proceeds of any Asset Sale, Holdings III or such Restricted Subsidiary, at its option, may apply the Net Proceeds from such Asset Sale,
(1) to permanently reduce:
(A) First Lien Obligations (including Obligations under the Senior Credit Facilities), shalland to correspondingly reduce commitments with respect thereto;
(B) Obligations under Senior Indebtedness that is secured by a Lien, which Lien is permitted by this Indenture, and to correspondingly reduce commitments with respect thereto; or
(C) Indebtedness of a Restricted Subsidiary that is not a Guarantor, other than Indebtedness owed to Holdings III or another Restricted Subsidiary;
(2) to make (a) an Investment in any one or more businesses, provided that such Investment in any business is in the form of the acquisition of Capital Stock and results in Holdings III or another of its Restricted Subsidiaries, as the case may be, owning an amount of the Capital Stock of such business such that it constitutes a Restricted Subsidiary, (b) 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 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 Holdings III or another of its Restricted Subsidiaries, as the case may be, owning an amount of the Capital Stock of such business such that it constitutes a Restricted Subsidiary, (b) properties or (c) acquisitions of other assets that, in each of (a), (b) and (c), replace the businesses, properties and/or assets that are the subject of such Asset Sale; provided that, in the case of clauses (2) and (3) above, a binding commitment shall be treated as a permitted application of the Net Proceeds from the date of such commitment so long as Holdings III or such other Restricted Subsidiary enters into such commitment with the good faith expectation that such Net Proceeds will be applied to satisfy such commitment within 180 days of such commitment (an “Acceptable Commitment”) and, in the event any Acceptable Commitment is later cancelled or terminated for any reason before the Net Proceeds are applied in connection therewith, Holdings III or such Restricted Subsidiary enters into another Acceptable Commitment (a “Second Commitment”) within 180 days of such cancellation or termination; provided further that if any Second Commitment is later cancelled or terminated for any reason before such Net Proceeds are applied, then such Net Proceeds shall constitute Excess Proceeds.
(c) Any Net Proceeds from the Asset Sale that are not invested or applied as provided and within the time period set forth in Section 4.10(b) hereof will be deemed to constitute “Excess Proceeds.” When the aggregate amount of Excess Proceeds exceeds $100.0 million, the Issuer shall make an offer to all Holders of the Notes and, if required by the terms of any other Indebtedness constituting First Lien Obligations, to the holders of such other First Lien Obligations (an “Asset Sale Offer”), to purchase the maximum aggregate principal amount of the Notes and such other First Lien Obligations that is at least $2,000 or an integral multiple of $1,000 thereafter that may be purchased out of the Excess Proceeds at an offer price in cash in an amount equal to 100% of the principal amount thereof (or accreted value, if less), plus accrued and unpaid interest, if any, to the date fixed for the purposes closing of such offer, in accordance with the procedures set forth in this Indenture. The Issuer will commence an Asset Sale Offer with respect to Excess Proceeds within ten Business Days after the date that Excess Proceeds exceed $100.0 million by mailing the notice required pursuant to the terms of this provision or for purposes Indenture, with a copy to the Trustee. The Issuer may satisfy the foregoing obligations with respect to any Net Proceeds from an Asset Sale by making an Asset Sale Offer with respect to such Net Proceeds prior to the expiration of the second paragraph relevant 450 days or with respect to Excess Proceeds of $100.0 million or less. To the extent that the aggregate amount of Notes and such other First Lien Obligations tendered pursuant to an Asset Sale Offer is less than the Excess Proceeds, the Issuer may use any remaining Excess Proceeds for general corporate purposes, subject to other covenants contained in this Indenture. If the aggregate principal amount of Notes or the other First Lien Obligations surrendered by such holders thereof exceeds the amount of Excess Proceeds, the Trustee shall select the Notes and such other First Lien Obligations to be purchased on a pro rata basis based on the accreted value or principal amount of the Notes or such other First Lien Obligations tendered. Upon completion of any such Asset Sale Offer, the amount of Excess Proceeds that resulted in the Asset Sale Offer shall be reset to zero.
(d) Pending the final application of any Net Proceeds pursuant to this Section 4.10; and, the holder of such Net Proceeds may apply such Net Proceeds temporarily to reduce Indebtedness outstanding under a revolving credit facility or otherwise invest such Net Proceeds in any manner not prohibited by this Indenture.
(e) The Issuer will comply with the requirements of Rule 14e-1 under the Exchange Act and any other securities laws and regulations thereunder to the extent such laws or regulations are applicable in connection with the repurchase of the Notes pursuant to an Asset Sale Offer. To the extent that the provisions of any securities laws or regulations conflict with the provisions of this Indenture, the Issuer will comply with the applicable securities laws and regulations and shall not be deemed to have breached its obligations described in this Indenture by virtue thereof.
Appears in 1 contract
Samples: Indenture (Freescale Semiconductor Holdings I, Ltd.)
Asset Sales. (a) The Company shall will not, and shall will not permit any of its Restricted Subsidiaries to, consummate an Asset Sale unless unless:
(i1) 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 Fair Market Value of the assets or Equity Interests issued or sold or otherwise disposed of of; and
(as determined in good faith by the Company); 2) (iix) at least 75% of the consideration received in respect of such Asset Sale by the Company or the such Restricted Subsidiary, as the case may be, from such Asset Sale shall be Subsidiary is in the form of cash or Cash Equivalents; provided that Equivalents or (y) the amount ofFair Market Value of all forms of consideration other than cash and Cash Equivalents received for all Asset Sales since the Issue Date does not exceed in the aggregate the greater of (i) 3% of the Adjusted Consolidated Net Tangible Assets of the Company at the time each determination is made or (ii) $20 million. For purposes of this provision, each of the following will be deemed to be cash:
(aA) any liabilities (liabilities, as shown on the Company’s or such Restricted Subsidiary’s most recent balance sheet or in the footnotes thereto, or if incurred or accrued subsequent to the date of such consolidated balance sheet, such liabilities that would have been shown on the Company’s or such Restricted Subsidiary’s balance or the footnotes thereto if such incurrence or accrual had taken place on the date of such balance sheet, as determined by the Company) of the Company or any such Restricted Subsidiary (other than liabilities contingent liabilities, Subordinated Debt and any obligations in respect of preferred stock) or costs and expenses of operating the property that are by their terms subordinated to was the Notes) subject of the Asset Sale that are assumed by the transferee of any such assets; assets or Equity Interests pursuant to (bi) any securities, notes a customary novation agreement (or other obligations received by legal documentation with the Company or any such Restricted Subsidiary from such transferee same effect) that are converted by includes a full release of the Company or such Restricted Subsidiary into from any and all liability therefor or (ii) an assignment agreement that includes, in lieu of such release, the agreement of the transferee or its parent company to indemnify and hold harmless the Company or such Restricted Subsidiary from and against any loss, liability or other cost in respect of such assumed liability;
(B) Liquid Securities;
(C) Promissory notes or other obligations of the transferee in the Asset Sale that are converted to cash or Cash Equivalents within 180 days of the receipt thereof (to the extent of the cash received); and (c) any Designated Non-cash 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 Non-cash Consideration received pursuant to this clause (c) after December 14, 2010 that is at that time outstanding, not to exceed the greater of $150 million and 5% 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, in each of (a), (b) and (c) above, be deemed to be cash for the purposes of this provision or for purposes of the second paragraph of this Section 4.10Sale; and
Appears in 1 contract
Samples: Indenture (SYNERGY RESOURCES Corp)
Asset Sales. (a) The Company shall will not, and shall will not permit any of its Restricted Subsidiaries Subsidiary to, consummate an Asset Sale unless Sale, unless:
(i1) the Company or the applicable such Restricted Subsidiary, as the case may be, receives consideration at the time of such Asset Sale at least equal to the fair market value Fair Market Value of the assets or Equity Interests sold or otherwise disposed of;
(2) with respect to any Asset Sale involving consideration or property in excess of (as $10.0 million, such Fair Market Value is determined in good faith by the Company); Board of Directors of TER and evidenced by a resolution of the Board of Directors set forth in an Officers’ Certificate delivered to the Trustee;
(ii3) at least 7585% of the consideration therefor received by the Company or the such Restricted Subsidiary, as the case may be, from such Asset Sale shall be is in the form of cash or Cash Equivalents; provided that the amount of:
(aA) any liabilities (as shown on the Company’s ’s, or such Restricted Subsidiary’s ’s, most recent balance sheet or in the footnotes thereto, or if incurred or accrued subsequent to the date of such balance sheet, such liabilities that would have been shown on the Company’s or such Restricted Subsidiary’s balance or the footnotes thereto if such incurrence or accrual had taken place on the date of such balance sheet, as determined by the Company) of the Company or any such Restricted Subsidiary (other than contingent liabilities and liabilities that are by their terms subordinated to the NotesNotes or such Restricted Subsidiary’s Guarantee) that are assumed by the transferee of any such assets; assets and for which the Company and all Restricted Subsidiaries have been validly released in writing by all creditors of such liabilities, and
(bB) any securities, notes or other obligations 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 the receipt thereof (to the extent of the cash received)) within 30 Business Days following the closing of such Asset Sale, shall be deemed to be cash for purposes of this provision and for no other purpose; and
(4) if such Asset Sale involves the disposition of Collateral, the Net Asset Sale Proceeds thereof, if cash or Cash Equivalents, shall be paid directly by the purchaser of the Collateral to the Collateral Agent for deposit into the Collateral Account, and, if any property other than cash or Cash Equivalents so deposited into the Collateral Account is included in such Net Asset Sale Proceeds, such property shall be made subject to the Lien of the Indenture and the applicable Collateral Documents, in each case, subject to and pending application pursuant to the provisions set forth in the Collateral Documents.
(cb) any Designated Non-cash Consideration received If the assets sold by the Company or any of its Restricted Subsidiaries in from an Asset Sale or series of related Asset Sales generated less than 25% of the Company’s consolidated EBITDA for the most recent twelve-month period for which internal financial statements are available (an “Ordinary Asset Sale”), within 365 days after the Company’s or any Restricted Subsidiary’s receipt of such Net Asset Sale Proceeds, the Company or such Restricted Subsidiary, at its option, may apply the Net Asset Sale Proceeds from such Asset Sale having Sale:
(1) to the repayment of Priority Lien Debt and, if such Priority Lien Debt is revolving credit Indebtedness, to correspondingly reduce commitments with respect thereto, or
(2) to an aggregate fair market valueinvestment in (a) any one or more Permitted Businesses, taken together with all other Designated Non-cash Consideration received pursuant to this clause provided that if such investment in any business is in the form of the acquisition of Capital Stock, such investment results in the Company or a Restricted Subsidiary, as the case may be, owning an amount of the Capital Stock of such Person such that it constitutes a Restricted Subsidiary, (b) capital expenditures or (c) after December 14, 2010 that is at that time outstanding, not to exceed acquisitions of other assets (other than the greater payment of $150 million and 5% 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 valueordinary operating expenses), shall, in each of (a), (b) and (c), used or useful in a Permitted Business (any of the foregoing clauses (a), (b), or (c), “Replacement Assets”); provided that any Replacement Assets acquired with any Net Asset Sale Proceeds of Collateral shall be owned by the Company or by a Guarantor and shall not be subject to any Liens other than Permitted Liens, and the Company or such Guarantor, as the case may be, shall execute and deliver to the Collateral Agent such Collateral Documents or other instruments as shall be reasonably necessary to cause such Replacement Assets to become subject to a Lien in favor of the Collateral Agent on behalf of the Trustee, for the benefit of the Holders, securing its obligations under the Notes or its Guarantee, as the case may be, and otherwise shall comply with terms of this Indenture and the Senior Credit Facility.
(c) aboveIf the assets sold by the Company or any of its Restricted Subsidiaries from an Asset Sale or series of related Asset Sales generated 25% or more of the Company’s consolidated EBITDA for the most recent twelve-month period for which internal financial statements are available at the time of such sale (an “Extraordinary Asset Sale”), then within 10 Business Days after the Company’s or any Restricted Subsidiaries receipt of such Net Asset Sale Proceeds, the Company or such Restricted Subsidiary must repay any Priority Lien Debt (and, if such Priority Lien Debt is revolving credit Indebtedness, to correspondingly reduce commitments with respect thereto), if any, to the extent such Priority Lien Debt is permitted or required to be repaid with such proceeds in accordance with its terms.
(d) For the purposes of calculating the percentage of the Company’s consolidated EBITDA to determine an Ordinary Asset Sale or Extraordinary Asset Sale under this Section 4.12, the amount of EBITDA generated by such assets shall be determined on an annualized basis to the extent such assets were acquired less than twelve months prior to such Asset Sale or series of related Asset Sales.
(e) Any Net Asset Sale Proceeds (i) from an or Ordinary Asset Sale that are not invested or applied as provided and within the time period set forth in the first sentence of paragraph (b) of this Section 4.12 or (ii) from an Extraordinary Asset Sale that are not used to repay Priority Lien Debt within the time period set forth in paragraph (c) of this Section 4.12, will be deemed to constitute “Excess Proceeds.” Within 10 Business Days following the date that the aggregate amount of Excess Proceeds exceeds $15.0 million, the Issuers shall make an offer to all Holders (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 cash in an amount equal to 100% of the principal amount thereof, plus accrued and unpaid interest to the date fixed for the purposes closing of such offer, in accordance with the procedures set forth in the 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 any purposes, subject to other covenants contained in this provision or for purposes Indenture. If the aggregate principal amount of Notes, tendered pursuant to an Asset Sale Offer exceeds the amount of Excess Proceeds, the Trustee shall select the Notes to be purchased on a pro rata basis based on the aggregate principal amount of the second paragraph Notes so tendered. Upon completion of any Asset Sale Offer, the amount of Excess Proceeds shall be reset at zero.
(f) Except as set forth in the following sentence, pending the final application of any Net Asset Sale Proceeds pursuant to this Section 4.10; and4.12, the Company or the applicable Restricted Subsidiary may apply such Net Asset Sale Proceeds temporarily to reduce revolving credit Indebtedness or otherwise invest such Net Asset Sale Proceeds in any manner not prohibited by the Indenture. Notwithstanding the foregoing, all Net Asset Sale Proceeds of any Collateral in respect of any Asset Sale shall, pending their application in accordance with this Section 4.12 or the release thereof in accordance with the provisions of the Collateral Documents, be deposited in the Collateral Account under the Intercreditor Agreement.
(g) The Issuers will comply with the requirements of Rule 14e-1 under the Exchange Act and any other securities laws and regulations thereunder to the extent such laws or regulations are applicable in connection with the repurchase of the Notes pursuant to an Asset Sale Offer. To the extent that the provisions of any securities laws or regulations conflict with the provisions of the Indenture, the Issuers will comply with the applicable securities laws and regulations and shall not be deemed to have breached its obligations described in the Indenture by virtue thereof.
Appears in 1 contract
Samples: Indenture (Trump Entertainment Resorts Holdings Lp)
Asset Sales. (a) The Company shall not, and shall not permit any of its Restricted Subsidiaries to, consummate cause or make an Asset Sale Sale, unless (ix) the Company or the applicable any of its Restricted SubsidiarySubsidiaries, as the case may be, receives consideration at the time of such Asset Sale at least equal to the fair market value of the assets sold or otherwise disposed of Fair Market Value (as determined in good faith by the Company); ) of the assets sold or otherwise disposed of, and (iiy) at least 75% of the consideration therefor received by the Company or the such Restricted Subsidiary, as the case may be, from such Asset Sale shall be is in the form of cash or Cash Equivalents; provided that the amount of:
(ai) any liabilities (as shown on the Company’s or such Restricted Subsidiary’s most recent balance sheet or in the footnotes notes thereto, or if incurred or accrued subsequent to the date of such balance sheet, such liabilities that would have been shown on the Company’s or such Restricted Subsidiary’s balance or the footnotes thereto if such incurrence or accrual had taken place on the date of such balance sheet, as determined by the Company) of the Company or any such Restricted Subsidiary of the Company (other than liabilities that are by their terms subordinated to the NotesSecurities or any Note Guaranty) that are assumed by the transferee of any such assets; assets or that are otherwise cancelled or terminated in connection with the transaction with such transferee,
(bii) any securities, notes or other obligations or other securities or assets received by the Company or any such Restricted Subsidiary of the Company from such transferee that are converted by the Company or such Restricted Subsidiary of the Company into cash within 180 days of the receipt thereof (to the extent of the cash received); and , and
(ciii) any Designated Non-cash Consideration received by the Company or any of its Restricted Subsidiaries in such Asset Sale having an aggregate fair market valueFair Market Value, taken together with all other Designated Non-cash Consideration received pursuant to this clause (ciii) after December 14, 2010 that is at that time outstanding, not to exceed the greater of $150 million and 53.0% of Total Assets and $45.0 million at the time of the receipt of such Designated Non-cash Consideration (with the fair market value 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 of (a), (b) and (c) above, shall be deemed to be cash Cash Equivalents for the purposes of this provision Section 4B.06(a).
(b) Within 365 days after the Company’s or for purposes any Restricted Subsidiary of the second paragraph Company’s receipt of the Net Proceeds of any Asset Sale, the Company or such Restricted Subsidiary of the Company may apply the Net Proceeds from such Asset Sale, at its option:
(i) (y) to repay Indebtedness constituting First-Priority Lien Obligations (and, if the Indebtedness repaid is revolving credit Indebtedness, to correspondingly reduce commitments with respect thereto), the Securities, any Indebtedness of a Foreign Subsidiary or Pari Passu Indebtedness (provided, that if the Company or any Guarantor shall so reduce Obligations under Pari Passu Indebtedness, the Issuers shall equally and ratably reduce Obligations under the Securities through open market purchases (provided that such purchases are at or above 100% of the principal amount thereof) and/or by making an offer (in accordance with the procedures set forth below for an Asset Sale Offer) to all Holders to purchase at a purchase price equal to 100% of the principal amount thereof, plus accrued and unpaid interest and Additional Interest, if any, of the pro rata principal amount of Securities) or Indebtedness of a Restricted Subsidiary that is not an Issuer or a Guarantor, in each case other than Indebtedness owed to the Company or an Affiliate of the Company, or (z) to repay ABL Obligations, to the extent the Net Proceeds are from an Asset Sale of ABL Priority Collateral (including indirect Asset Sales of ABL Priority Collateral due to the sale of the Capital Stock of a Person);
(ii) to make an investment in any one or more businesses (provided that if such investment is in the form of the acquisition of Capital Stock of a Person, such acquisition results in such Person becoming a Restricted Subsidiary of the Company), assets, or property or capital expenditures, in each case used or useful in a Similar Business; and/or
(iii) to make an investment in any one or more businesses (provided that if such investment is in the form of the acquisition of Capital Stock of a Person, such acquisition results in such Person becoming a Restricted Subsidiary of the Company), properties or assets that replace the properties and assets that are the subject of such Asset Sale. In the case of Sections 4B.06(b)(ii) and (iii), a binding commitment shall be treated as a permitted application of the Net Proceeds from the date of such commitment; provided, that (x) such investment is consummated within 545 days after receipt by the Company or any Restricted Subsidiary of the Net Proceeds of any Asset Sale and (y) if such investment is not consummated within the period set forth in subclause (x), the Net Proceeds not so applied will be deemed to be Excess Proceeds (as defined below). Pending the final application of any such Net Proceeds, the Company or such Restricted Subsidiary of the Company may temporarily reduce Indebtedness under a revolving credit facility, if any, or otherwise invest such Net Proceeds in any manner not otherwise prohibited by this Indenture. Any Net Proceeds from any Asset Sale that are not applied as provided and within the time period set forth in the first sentence of this Section 4.10; 4B.06(b) (it being understood that any portion of such Net Proceeds used to make an offer to purchase Securities, as described in clause (i) of this Section 4B.06(b), shall be deemed to have been invested whether or not such offer is accepted) shall be deemed to constitute “Excess Proceeds.” When the aggregate amount of Excess Proceeds exceeds $15 million, the Issuers shall make an offer to all Holders of Securities (and, at the option of the Issuers, to holders of any Pari Passu Indebtedness) (an “Asset Sale Offer”) to purchase the maximum principal amount of Securities (and such Pari Passu Indebtedness), that is at least $2,000 and an integral multiple of $1,000 in excess thereof, or if a PIK Payment has occurred, that is at least $1.00 and an integral multiple of $1.00 in excess thereof, that may be purchased out of the Excess Proceeds at an offer price in cash in an amount equal to 100% of the principal amount thereof (or, in the event such Pari Passu Indebtedness was issued with significant original issue discount, 100% of the accreted value thereof), plus accrued and unpaid interest and Additional Interest, if any (or, in respect of such Pari Passu Indebtedness, such lesser price, if any, as may be provided for by the terms of such Pari Passu Indebtedness), to the date fixed for the closing of such offer, in accordance with the procedures set forth in this Section 4B.06. The Issuers shall commence an Asset Sale Offer with respect to Excess Proceeds within ten Business Days after the date that Excess Proceeds exceeds $15 million by mailing, or delivering electronically if held by the Depository, the notice required pursuant to the terms of Section 4B.06(e), with a copy to the Trustee. To the extent that the aggregate amount of Securities (and such Pari Passu Indebtedness) tendered pursuant to an Asset Sale Offer is less than the Excess Proceeds, the Issuers may use any remaining Excess Proceeds for general corporate purposes. If the aggregate principal amount of Securities (and such Pari Passu Indebtedness) surrendered by holders thereof exceeds the amount of Excess Proceeds, the Trustee (upon receipt of notice from the Issuers of the aggregate principal amount to be selected) shall select the Securities to be purchased in the manner described in Section 4B.06(e). Upon completion of any such Asset Sale Offer, the amount of Excess Proceeds shall be reset at zero. The Company and its Restricted Subsidiaries may make an Asset Sale Offer under this covenant using Net Proceeds prior to the time any such Net Proceeds become Excess Proceeds, in which case such Net Proceeds shall be deemed to have been applied within the time frame required by this covenant.
(c) The Issuers shall comply with the requirements of Rule 14e-1 under the Exchange Act and any other securities laws and regulations to the extent such laws or regulations are applicable in connection with the repurchase of the Securities pursuant to an Asset Sale Offer. To the extent that the provisions of any securities laws or regulations conflict with the provisions of this Indenture, the Issuers shall comply with the applicable securities laws and regulations and shall not be deemed to have breached its obligations described in this Indenture by virtue thereof.
(d) Not later than the date upon which written notice of an Asset Sale Offer is delivered to the Trustee as provided above, the Company shall deliver to the Trustee an Officers’ Certificate as to (i) the amount of the Excess Proceeds, (ii) the allocation of the Net Proceeds from the Asset Sales pursuant to which such Asset Sale Offer is being made and (iii) the compliance of such allocation with the provisions of Section 4B.06(b). On such date, the Company shall also irrevocably deposit with the Trustee or with a Paying Agent (or, if the Company or a Wholly Owned Restricted Subsidiary is acting as the Paying Agent, segregate and hold in trust) an amount equal to the Excess Proceeds to be invested in Cash Equivalents, as directed in writing by the Company, and to be held for payment in accordance with the provisions of this Section 4B.06. Upon the expiration of the period for which the Asset Sale Offer remains open (the “Offer Period”), the Company shall deliver to the Trustee for cancellation the Securities or portions thereof that have been properly tendered to and are to be accepted by the Company. The Trustee (or 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
Appears in 1 contract
Samples: Indenture (Verso Paper Holdings LLC)
Asset Sales. (a) The Company Issuer shall not, and shall not permit any of its Restricted Subsidiaries to, consummate cause or make an Asset Sale Sale, unless (ix) the Company Issuer or the applicable any of its Restricted SubsidiarySubsidiaries, as the case may be, receives consideration at the time of such Asset Sale at least equal to the fair market value of the assets sold or otherwise disposed of Fair Market Value (as determined in good faith by the Company); Issuer) of the assets sold or otherwise disposed of, and (iiy) at least 75% of the consideration therefor received by the Company Issuer or the such Restricted Subsidiary, as the case may be, from such Asset Sale shall be is in the form of cash or Cash Equivalents; provided that the amount of:
(ai) any liabilities (as shown on the CompanyIssuer’s or such Restricted Subsidiary’s most recent balance sheet or in the footnotes notes thereto, or if incurred or accrued subsequent to the date of such balance sheet, such liabilities that would have been shown on the Company’s or such Restricted Subsidiary’s balance or the footnotes thereto if such incurrence or accrual had taken place on the date of such balance sheet, as determined by the Company) of the Company Issuer or any such Restricted Subsidiary of the Issuer (other than liabilities that are by their terms subordinated to the NotesSecurities or any Guarantee) that are assumed by the transferee of any such assets; ,
(bii) any securities, notes or other obligations or other securities or assets received by the Company Issuer or any such Restricted Subsidiary of the Issuer from such transferee that are converted by the Company Issuer or such Restricted R stricted Subsidiary of the Issuer into cash within 180 days of the receipt thereof (to the extent of the cash received); and , and
(ciii) any Designated Non-cash Consideration received by the Company Issuer or any of its Restricted Subsidiaries in such Asset Sale having an aggregate fair market valueFair Market Value, taken together with all other Designated Non-cash Consideration received pursuant to this clause (ciii) after December 14, 2010 that is at that time outstanding, not to exceed the greater of $150 million and 52.0% of Total Assets and $50.0 million at the time of the receipt of such Designated Non-cash Consideration (with the fair market value 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 of (a), (b) and (c) above, shall be deemed to be cash Cash Equivalents for the purposes of this provision Section 4.06(a).
(b) Within 365 days after the Issuer’s or for purposes any Restricted Subsidiary of the Issuer’s receipt of the Net Proceeds of any Asset Sale, the Issuer or such Restricted Subsidiary of the Issuer may apply the Net Proceeds from such Asset Sale, at its option:
(i) to repay Indebtedness constituting First Priority Lien Obligations (and, if the Indebtedness repaid is revolving credit Indebtedness, to correspondingly reduce commitments with respect thereto), Indebtedness of a Foreign Subsidiary or Pari Passu Indebtedness (provided that if the Issuer or any Guarantor shall so reduce Obligations under Pari Passu Indebtedness (other than any First Priority Lien Obligations), the Issuer shall equally and ratably reduce Obligations under the Securities through open-market purchases (provided that such purchases are at or above 100% of the principal amount thereof) or by making an offer (in accordance with the procedures set forth below for an Asset Sale Offer) to all Holders to purchase at a purchase price equal to 100% of the principal amount thereof, plus accrued and unpaid interest and Additional Interest, if any, the pro rata principal amount of Securities) or Indebtedness of a Restricted Subsidiary that is not a Guarantor, in each case other than Indebtedness owed to the Issuer or an Affiliate of the Issuer,
(ii) to make an investment in any one or more businesses (provided that if such investment is in the form of the acquisition of Capital Stock of a Person, such acquisition results in such Person becoming a Restricted Subsidiary of the Issuer), assets, or property or capital expenditures, in each case used or useful in a Similar Business, or
(iii) to make an investment in any one or more businesses (provided that if such investment is in the form of the acquisition of Capital Stock of a Person, such acquisition results in such Person becoming a Restricted Subsidiary of the Issuer), properties or assets that replace the properties and assets that are the subject of such Asset Sale. In the case of Sections 4.06(b)(ii) and (iii), a binding commitment shall be treated as a permitted application of the Net Proceeds from the date of such commitment; provided that in the event such binding commitment is later canceled or terminated for any reason before such Net Proceeds are so applied, the Issuer or such Restricted Subsidiary enters into another binding commitment within nine months of such cancellation or termination of the prior binding commitment; provided, further that the Issuer or such Restricted Subsidiary may only enter into such a second paragraph commitment under the foregoing provision one time with respect to each Asset Sale. Pending the final application of any such Net Proceeds, the Issuer or such Restricted Subsidiary of the Issuer may temporarily reduce Indebtedness under a revolving credit facility, if any, or otherwise invest such Net Proceeds in Cash Equivalents or Investment Grade Securities. Any Net Proceeds from any Asset Sale that are not applied as provided and within the time period set forth in the first sentence of this Section 4.104.06(b) (it being understood that any portion of such Net Proceeds used to make an offer to purchase Securities, as described in clause (i) of this Section 4.06(b), shall be deemed to have been invested whether or not such offer is accepted) shall be deemed to constitute “Excess Proceeds.” When the aggregate amount of Excess Proceeds exceeds $15.0 million, the Issuer shall make an offer to all Holders (and, at the option of the Issuer, to holders of any Pari Passu Indebtedness) (an “Asset Sale Offer”) to purchase the maximum principal amount of Securities (and such Pari Passu Indebtedness), that is at least $2,000 and an integral multiple of $1,000 that may be purchased out of the Excess Proceeds at an offer price in cash in an amount equal to 100% of the principal amount thereof (or, in the event such Pari Passu Indebtedness was issued with significant original issue discount, 100% of the accreted value thereof), plus accrued and unpaid interest and Additional Interest, if any (or, in respect of such Pari Passu Indebtedness, such lesser price, if any, as may be provided for by the terms of such Pari Passu Indebtedness), to the date fixed for the closing of such offer, in accordance with the procedures set forth in this Section 4.06. The Issuer shall commence an Asset Sale Offer with respect to Excess Proceeds within 10 Business Days after the date that Excess Proceeds exceeds $15.0 million by mailing the notice required pursuant to the terms of Section 4.06(f), with a copy to the Trustee. To the extent that the aggregate amount of Securities (and such Pari Passu Indebtedness) tendered pursuant to an Asset Sale Offer is less than the Excess Proceeds, the Issuer may use any remaining Excess Proceeds for general corporate purposes. If the aggregate principal amount of Securities (and such Pari Passu Indebtedness) surrendered by holders thereof exceeds the amount of Excess Proceeds, the Trustee shall select the Securities to be purchased in the manner described in Section 4.06(e). Upon completion of any such Asset Sale Offer, the amount of Excess Proceeds shall be reset at zero.
(c) The Issuer shall comply with the requirements of Rule 14e-1 under the Exchange Act and any other securities laws and regulations to the extent such laws or regulations are applicable in connection with the repurchase of the Securities pursuant to an Asset Sale Offer. To the extent that the provisions of any securities laws or regulations conflict with the provisions of this Indenture, the Issuer shall comply with the applicable securities laws and regulations and shall not be deemed to have breached its obligations described in this Indenture by virtue thereof.
(d) Not later than the date upon which written notice of an Asset Sale Offer is delivered to the Trustee as provided above, the Issuer shall deliver to the Trustee an Officers’ Certificate as to (i) the amount of the Excess Proceeds, (ii) the allocation of the Net Proceeds from the Asset Sales pursuant to which such Asset Sale Offer is being made and (iii) the compliance of such allocation with the provisions of Section 4.06(b). On such date, the Issuer shall also irrevocably deposit with the Trustee or with a paying agent (or, if the Issuer or a Wholly Owned Restricted Subsidiary is acting as the Paying Agent, segregate and hold in trust) an amount equal to the Excess Proceeds to be invested in Cash Equivalents, as directed in writing by the Issuer, and to be held for payment in accordance with the provisions of this Section 4.06. Upon the expiration of the period for which the Asset Sale Offer remains open (the “Offer Period”), the Issuer shall deliver to the Trustee for cancellation the Securities or portions thereof that have been properly tendered to and are to be accepted by the Issuer. The Trustee (or the Paying Agent, if not the Trustee) shall, on the date of purchase, mail or deliver payment to each tendering Holder in the amount of the purchase price. In the event that the Excess Proceeds delivered by the Issuer to the Trustee are greater than the purchase price of the Securities tendered, the Trustee shall deliver the excess to the Issuer immediately after the expiration of the Offer Period for application in accordance with Section 4.06.
(e) Holders electing to have a Security purchased shall be required to surrender the Security, with an appropriate form duly completed, to the Issuer at the address specified in the notice at least three Business Days prior to the purchase date. Holders shall be entitled to withdraw their election if the Trustee or the Issuer receives not later than one Business Day prior to the Purchase Date, a facsimile transmission or letter sent to the address indicated in Section 13.02 or specified in the notice described in Section 4.06(f) setting forth the name of the Holder, the principal amount of the Security which was delivered by the Holder for purchase and a statement that such Hxxxxx is withdrawing his election to have such Security purchased. If at the end of the Offer Period more Securities (and such Pari Passu Indebtedness) are tendered pursuant to an Asset Sale Offer than the Issuer is required to purchase, selection of such Securities for purchase shall be made by the Trustee in compliance with the requirements of the principal national securities exchange, if any, on which such Securities are listed, or if such Securities are not so listed, on a pro rata basis, by lot or by such other method as the Trustee shall deem fair and appropriate (and in such manner as complies with applicable legal requirements); andprovided that no Securities of $2,000 or less shall be purchased in part. Selection of such Pari Passu Indebtedness shall be made pursuant to the terms of such Pari Passu Indebtedness.
(f) Notices of an Asset Sale Offer shall be mailed by first class mail, postage prepaid at least 30 but not more than 60 days before the purchase date to each Holder at such Holder’s registered address. If any Security is to be purchased in part only, any notice of purchase that relates to such Security shall state the portion of the principal amount thereof that has been or is to be purchased.
Appears in 1 contract
Samples: Indenture (Berry Plastics Corp)
Asset Sales. (a) The Company shall not, and shall not permit any of its Restricted Subsidiaries to, consummate an Asset Sale unless unless:
(i) 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 (as determined in good faith by the Board of Directors of the Company); ;
(ii) 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:
(aA) any liabilities (as shown on the Company’s or such Restricted Subsidiary’s most recent balance sheet or in the footnotes thereto, or if incurred or accrued subsequent to the date of such balance sheet, such liabilities that would have been shown on the Company’s or such Restricted Subsidiary’s balance or the footnotes thereto if such incurrence or accrual had taken place on the date of such balance sheet, as determined by the Company) of the Company or any such Restricted Subsidiary (other than liabilities that are by their terms subordinated to the NotesNotes or the Guarantees) that are assumed by the transferee of any such assets; assets and from which the Company and all Restricted Subsidiaries have been validly released by all creditors in writing;
(bB) any securities, notes or other obligations received by the Company or any such Restricted Subsidiary from such transferee that are converted by the Company or such Restricted Subsidiary into cash within 180 days of the receipt thereof (to the extent of the cash received); and ;
(cC) any Designated Non-cash 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 Non-cash Consideration received pursuant to this clause (cC) after December 14, 2010 that is at that time outstanding, not to exceed the greater of (x) $150 75 million and 5(y) 7.5% of Total Assets at the time of the receipt of such Designated Non-cash Consideration (with the fair market value of each item of Designated Non-cash Consideration being measured at the time received and without giving effect to subsequent changes in value); and
(D) any Productive Assets, shall, in each of clauses (aA), (bB), (C) and (cD) above, be deemed to be cash for the purposes of this provision Section 4.08(a); and
(iii) 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 365 days of receipt thereof:
(A) to prepay any Obligations under a Debt Facility or Obligations under Senior Debt that are secured by a Lien, which Lien is permitted by this Indenture and, in the case of any such Indebtedness under any revolving credit facility, effect a corresponding reduction in the availability under such revolving credit facility (or, if required by a Debt Facility, effect a permanent reduction in the availability under such revolving credit facility regardless of the fact that no prepayment is required in order to do so (in which case no prepayment should be required)),
(B) to prepay the Obligations under other Senior Debt and, in the case of any such Indebtedness under any revolving credit facility, effect a corresponding reduction in the availability under such revolving credit facility; provided that to the extent the Company prepaid Obligations under Senior Debt other than the Notes, the Company shall equally and ratably reduce Obligations under the Notes as provided under Section 3.03 hereof, through open-market purchases (to the extent such purchases are at or above 100% of the principal amount thereof) or by making an offer (in accordance with the procedures set forth below for an Asset Sale Offer) to all Holders to 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,
(C) to prepay Indebtedness of a Restricted Subsidiary that is not a Guarantor, other than Indebtedness owed to the Company, a Guarantor or another Restricted Subsidiary,
(D) to reinvest in Productive Assets (provided that this requirement shall be deemed satisfied if the Company or such Restricted Subsidiary by the end of such 365-day period has entered into a binding agreement under which it is contractually committed to reinvest in Productive Assets and such investment is consummated within 120 days from the date on which such binding agreement is entered into and, with respect to the amount of such investment, the reference to the 366th day after an Asset Sale in the second following sentence shall be deemed to be a reference to the 121st day after the date on which such binding agreement is entered into (but only if such 121st day occurs later than such 366th day)), and
(E) a combination of prepayment and investment permitted by the foregoing clauses (iii)(A), (iii)(B), (iii)(C), and (iii)(D). Pending the final application of any such Net Cash Proceeds, the Company or such Restricted Subsidiary may temporarily reduce Indebtedness under a revolving credit facility, if any, or otherwise invest such Net Cash Proceeds in Cash Equivalents. On the 366th day after an Asset Sale or such earlier date, if any, as the Board of Directors of the Company or of such Restricted Subsidiary determines by Board Resolution not to apply the Net Cash Proceeds relating to such Asset Sale as set forth in clauses (iii)(A), (iii)(B), (iii)(C), (iii)(D) or (iii)(E) above (the “Asset Sale Offer Trigger Date”), such aggregate amount of Net Cash Proceeds that have not been applied as set forth in clauses (iii)(A), (iii)(B), (iii)(C) (iii)(D) or (iii)(E) above on or before such Asset Sale Offer Trigger Date (each an “Asset Sale Offer Amount”) shall be applied by the Company or such Restricted Subsidiary to make an offer to purchase (the “Asset Sale Offer”) on a date (the “Asset Sale Offer Payment Date”) not less than 15 nor more than 60 days following the applicable Asset Sale Offer Trigger Date, from all Holders and holders of any other Indebtedness of the Company or a Restricted Subsidiary ranking pari passu with the Notes requiring the making of such an offer (the “Pari Passu Debt”) on a pro rata basis, the maximum amount of Notes and such other Pari Passu Debt that may be purchased with the Asset Sale Offer Amount at a price equal to 100% of their principal amount, plus accrued and unpaid interest thereon, if any, to the date of purchase (or, in respect of such other Pari Passu Debt, such lesser price, if any, as may be provided for by the terms of such Pari Passu Debt), in accordance with the procedures (including pro rating in the event of oversubscription and calculation of the principal amount of Notes denominated in different currencies) set forth in this Indenture.
(b) If at any time any non-cash consideration (including any Designated 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 converted into or sold or otherwise disposed of for cash (other than interest received with respect to any such non-cash consideration), then such conversion or disposition shall be deemed to constitute an Asset Sale hereunder and the Net Cash Proceeds thereof shall be applied in accordance with this Section 4.08.
(c) Notwithstanding the foregoing, if the Asset Sale Offer Amount is less than $50.0 million, the application of the Net Cash Proceeds constituting such Asset Sale Offer Amount to an Asset Sale Offer may be deferred until such time as such Asset Sale Offer Amount plus the aggregate amount of all Asset Sale Offer Amounts arising subsequent to the Asset Sale Offer Trigger Date relating to such initial Asset Sale Offer Amount from all Asset Sales by the Company and its Restricted Subsidiaries aggregates at least $50.0 million, at which time the Company or such Restricted Subsidiary shall apply all Net Cash Proceeds constituting all Asset Sale Offer Amounts that have been so deferred to make an Asset Sale Offer (the first date the aggregate of all such deferred Asset Sale Offer Amounts is equal to $50.0 million or more shall be deemed to be an Asset Sale Offer Trigger Date). Each Asset Sale Offer will be mailed or sent electronically to the record Holders as shown on the register of Holders within 30 days following the Asset Sale Offer Trigger Date, with a copy to the Trustee, and shall comply with the procedures set forth in Section 3.05 hereof. Upon receiving notice of the Asset Sale Offer, Holders may elect to tender their Notes in whole or in part in, in a minimum of $2,000 or in integral multiples of $1,000 in excess thereof (provided that no Note will be purchased in part if such Note would have a remaining amount of less than $2,000), in exchange for cash. To the extent Holders properly tender Notes (and, if applicable, holders of Pari Passu Debt, tender Pari Passu Debt) in an aggregate amount exceeding the Asset Sale Offer Amount, Notes of tendering Holders and Pari Passu Debt of holders thereof will be purchased on a pro rata basis (based on amounts tendered). To the extent that the aggregate amount of Notes and Pari Passu Debt tendered pursuant to an Asset Sale Offer is less than the Asset Sale Offer Amount, the Company may use any remaining Asset Sale Offer Amount for general corporate purposes or for purposes any other purpose not prohibited by this Indenture. Upon completion of any such Asset Sale Offer, the second paragraph Asset Sale Offer Amount shall be reset at zero. The Company shall comply with the requirements of Rule 14e-1 under the Exchange Act and any other securities laws and regulations thereunder to the extent such laws and regulations are applicable in connection with the repurchase of Notes pursuant to this Section 4.08. To the extent that the provisions of any securities laws or regulations conflict with the provisions of this Section 4.10; and4.08, the Company shall comply with the applicable securities laws and regulations and shall not be deemed to have breached its obligations under this Section 4.08 by virtue thereof.
Appears in 1 contract
Samples: Eleventh Supplemental Indenture (Central Garden & Pet Co)
Asset Sales. The Company Effect any Disposition, or agree to effect any Disposition, except that the following shall notbe permitted:
(a) Dispositions of used, and shall not permit worn out, surplus or obsolete property by the Borrower or any of its Restricted Subsidiaries toor any property no longer useful in the conduct of the business of the Borrower or any of its Subsidiaries and the abandonment or other Disposition of Intellectual Property that is, consummate an Asset Sale unless in the reasonable good faith judgment of the Borrower, no longer economically practicable to maintain or useful in the conduct of the business of the Borrower and its Subsidiaries taken as a whole;
(b) other Dispositions; provided that (i) the Company or the applicable Restricted Subsidiaryaggregate consideration received in respect of all Dispositions pursuant to this clause (b) shall not exceed $1,000,000 in any period of twelve (12) consecutive months, 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 (as determined in good faith by the Company); (ii) such Dispositions are made for Fair Market Value and on an arm’s-length commercial basis, and (iii) at least 75% of the consideration received by the Company or the Restricted Subsidiary, as the case may be, from payable in respect of such Asset Sale shall be Disposition is in the form of cash or Cash Equivalents; provided that the amount of:;
(ac) any liabilities (as shown on the Company’s Leases of real or such Restricted Subsidiary’s most recent balance sheet or in the footnotes thereto, or if incurred or accrued subsequent to the date of such balance sheet, such liabilities that would have been shown on the Company’s or such Restricted Subsidiary’s balance or the footnotes thereto if such incurrence or accrual had taken place on the date of such balance sheet, as determined by the Company) of the Company or any such Restricted Subsidiary personal property (other than liabilities Sale and Leaseback Transactions) in the ordinary course of business so long as no such Lease otherwise adversely affects the Collateral Agent’s security interest in the asset or property subject thereto in any material respect;
(d) Investments in compliance with Section 6.04;
(e) mergers and consolidations in compliance with Section 6.05;
(f) Dividends in compliance with Section 6.08;
(g) sales of inventory in the ordinary course of business and Dispositions of cash and Cash Equivalents in the ordinary course of business;
(h) any Disposition that are constitutes a Casualty Event;
(x) any Disposition by their terms subordinated the Borrower or any Subsidiary of the Borrower to the Notes) that are assumed by the transferee of any such assets; (b) any securities, notes or other obligations received by the Company or any such Restricted Subsidiary from such transferee that are converted by the Company or such Restricted Subsidiary into cash within 180 days of the receipt thereof (to the extent of the cash received); and (c) any Designated Non-cash Consideration received by the Company Borrower or any of its Restricted Wholly Owned Subsidiaries; provided that if the transferor of such property is the Borrower or a Guarantor, the transferee thereof must be the Borrower or a Guarantor and (y) any Disposition by any Loan Party to a Subsidiary of the Borrower that is not a Loan Party to the extent constituting an Investment permitted by Section 6.04 hereof;
(j) any Foreign Subsidiary may dispose of any or all of its assets to another Foreign Subsidiary;
(k) Dispositions of accounts receivable arising in the ordinary course of business in connection with the collection or compromise thereof and not as part of any financing transaction;
(l) Dispositions of common Equity Interests in the Borrower (in any case, not constituting Disqualified Stock) to any employee, officer, director or service provider of the Borrower or any ERISA Affiliate made pursuant to any equity or equity based plan approved by the Board of Directors of the Borrower in good faith;
(m) transactions permitted under Section 6.09(e);
(n) any Disposition of the Distribution Center or any constituent parts thereof in the context of a Sale and Leaseback Transaction permitted hereunder; and
(o) any Disposition by Borrower or any of its Subsidiaries of assets in connection with the closing or sale of a retail store location of the Borrower or any of its Subsidiaries in the ordinary course of business which consist of leasehold interests in the premises of such store, the equipment and fixtures located at such premises and the books and records relating exclusively and directly to the operations of such store; provided, that, as to each and all such sales and closings, (A) on the date of, and after giving effect to, any such closing or sale, the aggregate number of retail store locations closed or sold by Borrower or any of its Subsidiaries in any Fiscal Year minus the number of retail stores opened by Borrower and its Subsidiaries in such Asset Sale having an aggregate fair market valueFiscal Year, taken together with all other Designated Non-cash Consideration received pursuant to this clause (c) after December 14, 2010 that is at that time outstanding, shall not to exceed the greater of $150 million and 5% of Total Assets at the time amount equal to ten percent (10%) of the receipt number of such Designated Non-cash Consideration (with retail store locations of Borrower as of the fair market value end of each item of Designated Non-cash Consideration being measured at the time received and without giving effect to subsequent changes in value)immediately preceding Fiscal Year, shall, in each of (a), (b) and (cB) above, such sale shall be deemed to be cash for on commercially reasonable prices and terms in a bona fide arm’s length transaction. To the purposes of this provision or for purposes of extent the second paragraph Required Lenders under Section 10.02(b) waive the provisions of this Section 4.10; 6.06, with respect to the sale of any Collateral, or any Collateral is sold as permitted by this Section 6.06, such Collateral (unless sold to a Loan Party or any Affiliate thereof), but not the proceeds thereof, shall be sold free and clear of the Liens created by the Security Documents, and, so long as the Borrower shall have previously provided to the Collateral Agent and the Administrative Agent such certifications or documents as the Collateral Agent and/or the Administrative Agent shall reasonably request in order to demonstrate compliance with this Section 6.06, the Collateral Agent shall take all actions it deems appropriate in order to effect the foregoing.
Appears in 1 contract
Samples: Credit Agreement (Five Below, Inc)
Asset Sales. The Company shall not, and shall not permit any of its Restricted Subsidiaries to, consummate an Asset Sale unless (ix) the Company (or the applicable Restricted Subsidiary, as the case may be, ) receives consideration at the time of such Asset Sale which, taken as a whole, is at least equal to the fair market value of the assets or Equity Interests issued or sold or otherwise disposed of of, (as y) such 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 set forth in an Officers' Certificate delivered to the Trustee and (iiz) at least 75% of the consideration therefor received by the Company or the such Restricted Subsidiary, as the case may be, from such Asset Sale shall be Subsidiary is in the form of cash or Cash Equivalents; provided that Equivalents or Marketable Securities. For purposes of this provision, each of the amount offollowing shall be deemed to be cash:
(ai) any liabilities (as shown on the Company’s 's or such Restricted Subsidiary’s 's most recent balance sheet or in the footnotes theretosheet), or if incurred or accrued subsequent to the date of such balance sheet, such liabilities that would have been shown on the Company’s or such Restricted Subsidiary’s balance or the footnotes thereto if such incurrence or accrual had taken place on the date of such balance sheet, as determined by the Company) of the Company or any such Restricted Subsidiary (other than contingent liabilities and liabilities that are by their terms subordinated to the NotesNotes or any Subsidiary Guarantee) that are assumed by the transferee of any such assets; ;
(bii) any securities, notes or other obligations received by the Company or any such Restricted Subsidiary from such transferee that are converted converted, sold or exchanged by the Company or such Restricted Subsidiary into cash within 180 30 days of the receipt thereof related Asset Sale (to the extent of the cash receivedreceived in that conversion); and and
(ciii) any Designated Non-cash Noncash Consideration received by the Company or any Restricted Subsidiary of its Restricted Subsidiaries the Company in such Asset Sale having an aggregate fair market value, taken together with all other Designated Non-cash Noncash Consideration received since the date of this Indenture pursuant to this clause (ciii) after December 14, 2010 that is at that time outstanding, not to exceed the greater of $150 million and 510% of Total Assets at the time of the receipt of such Designated Non-cash Noncash Consideration (with the fair market value of each item of Designated Non-cash Noncash Consideration being measured at the time received and without giving effect to subsequent changes in value). Within 365 days after the receipt of any Net Proceeds from an Asset Sale, shallthe Company may apply such Net Proceeds, at its option:
(i) to repay Senior Debt and, if the Senior Debt repaid is revolving credit Indebtedness, to correspondingly reduce commitments with respect thereto;
(ii) to invest in or to acquire other properties or assets to replace the properties or assets that were the subject of the Asset Sale or that will be used in businesses of the Company or its Restricted Subsidiaries, as the case may be, existing at the time such assets are sold;
(iii) to make a capital expenditure or commit, or cause such Restricted Subsidiary to commit, to make a capital expenditure (such commitments to include amounts anticipated to be expended pursuant to the Company's capital investment plan as adopted by the Board of Directors of the Company) within 24 months of such Asset Sale; or
(iv) to make a Timberlands Repurchase in accordance with Section 3.07(ii) hereof. Pending the final application of any such Net Proceeds, the Company may temporarily reduce revolving credit borrowings or otherwise invest such Net Proceeds in any manner that is not prohibited by this Indenture. Any Net Proceeds from Asset Sales that are not applied or invested as provided in the preceding paragraph shall constitute "Excess Proceeds." When the aggregate amount of Excess Proceeds exceeds $25.0 million, the Company shall make an Asset Sale Offer to all Holders of Notes and all holders of other Indebtedness that is pari passu with the Notes containing provisions similar to those set forth in this Indenture with respect to offers to purchase or redeem with the proceeds of sales of assets to purchase the maximum principal amount of Notes and such other pari passu Indebtedness that may be purchased out of the Excess Proceeds. The offer price in any Asset Sale Offer shall be equal to 100% of the principal amount plus accrued and unpaid interest and 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 Notes and such other pari passu Indebtedness tendered into such Asset Sale Offer exceeds the amount of Excess Proceeds, the Trustee shall select the Notes and such other pari passu Indebtedness to be purchased on a pro rata basis based on the principal amount of Notes and such other pari passu Indebtedness tendered. Upon completion of each Asset Sale Offer, the amount of Excess Proceeds shall be reset at zero. Notwithstanding the three preceding paragraphs, the Company shall be permitted to apply up to $100.0 million of Timberlands Net Proceeds (a)which amount shall be reduced on a dollar for dollar basis by the amount of Timberlands Net Proceeds used to make a Timberlands Repurchase in accordance with Section 3.07(ii) hereof) to repurchase or redeem, or pay a dividend on, or a return of capital with respect to, any Equity Interests of the Company, or repurchase or redeem Subordinated Exchange Debentures, if:
(i) the repurchase, redemption, dividend or return of capital is consummated within 90 days of the final sale of such Timberlands Sale;
(ii) the Company's Debt to Cash Flow Ratio at the time of such Timberlands Repurchase, after giving pro forma effect to (A) such repurchase, redemption, dividend or return of capital, (bB) the Timberlands Sale and the application of the net proceeds therefrom and (cC) aboveany increase or decrease in fiber, be deemed to be cash for the purposes of this provision stumpage or for purposes similar costs as a result of the second paragraph Timberlands Sale as if the same had occurred at the beginning of the most recently ended four full fiscal quarter period of the Company for which internal financial statements are available, would have been no greater than 4.5 to 1; and
(iii) in the case of a repurchase or redemption of all of the then outstanding Preferred Stock or Subordinated Exchange Debentures, no Timberlands Net Proceeds have previously been applied to redeem Notes or repurchase or redeem, or pay a dividend on, or a return of capital with respect to, any other Equity Interests of the Company. The Company shall comply with the requirements of Rule 14e-1 under the Exchange Act and any other securities laws and regulations thereunder to the extent such laws and regulations are applicable in connection with each repurchase of Notes pursuant to an Asset Sale Offer. To the extent that the provisions of any securities laws or regulations conflict with the provisions of this Section 4.10; and, the Company shall comply with the applicable securities laws and regulations and shall not be deemed to have breached its obligations under the provisions of this Section 4.10 by virtue of such conflict.
Appears in 1 contract
Samples: Indenture (Pca Valdosta Corp)
Asset Sales. (a) The Company shall not, and shall not permit any of its Restricted Subsidiaries to, consummate an Asset Sale unless Sale, unless:
(i1) the Company or the applicable 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 (as determined in good faith by the Company)) of the assets sold or otherwise disposed of; and
(ii2) except in the case of a Permitted Asset Swap, at least 75% of the consideration therefor received by the Company or the such Restricted Subsidiary, as the case may be, from such Asset Sale shall be is in the form of cash or 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, or if incurred or accrued subsequent to the date of such balance sheet, such liabilities that would have been shown on the Company’s or such Restricted Subsidiary’s balance or the footnotes thereto if such incurrence or accrual had taken place on the date of such balance sheet, as determined by the Company) of the Company or any such Restricted Subsidiary (Subsidiary, other than liabilities that are by their terms subordinated to the NotesSeries B Notes (or Guarantees) or that are owed to the Company or a Restricted Subsidiary, that are assumed by the transferee of any such assets; assets and for which the Company and all of its Restricted Subsidiaries have been irrevocably released from such liabilities,
(b) any securities, notes or other obligations or assets received by the Company or any such Restricted Subsidiary from such transferee that are converted by the Company or such Restricted Subsidiary into cash within 180 days of the receipt thereof (to the extent of the cash received); and ) within 180 days following the closing of such Asset Sale, subject to ordinary settlement periods, and
(c) any Designated Non-cash Consideration received by the Company or any of its such Restricted Subsidiaries 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) after December 14, 2010 that is at that time outstanding, not to exceed the greater of (x) $150 million 150,000,000 and 5(y) 2.0% of Total Assets at as of the time end of the Company’s most recently ended fiscal quarter prior to the date of the receipt of such Designated Non-cash Consideration (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 valuevalue shall be deemed to be cash for purposes of this provision and for no other purpose.
(b) Within 18 months after the receipt of any Net Proceeds of any Asset Sale:
(1) by the Company or any Restricted Subsidiary, then the Company or such Restricted Subsidiary, at its option, may apply the Net Proceeds from such Asset Sale to permanently reduce Obligations under Pari Passu Indebtedness of the Issuer or the Guarantors that is secured by a Lien, which Lien is permitted by this Indenture, and to correspondingly reduce commitments with respect thereto;
(2) by the Company or any Restricted Subsidiary, then the Company or such Restricted Subsidiary, at its option, may apply the Net Proceeds from such Asset Sale to permanently reduce Obligations under (i) the Series B Notes (to the extent such purchases are at or above 100.0% of the principal amount thereof) or (ii) any other Pari Passu Indebtedness of the Issuer or a Guarantor (and to correspondingly reduce commitments with respect thereto); provided, shallhowever, that the Issuer shall equally and ratably reduce (or offer to reduce) Obligations under the Series B Notes as provided in Section 5 of each of the Series B Notes and Sections 3.02 and 3.07 hereof, through open-market purchases (to the extent such purchases are at or above 100% of the principal amount thereof) or by making an offer (in accordance with the procedures set forth in Section 3.09 and Section 4.10(c) hereof) to all Holders of Series B Notes to purchase a pro rata amount of Series B Notes at 100.0% of the principal amount thereof, plus accrued but unpaid interest;
(3) [Reserved];
(4) [Reserved];
(5) by any Restricted Subsidiary that is not the Issuer or a Guarantor, then such Restricted Subsidiary that is not the Issuer or a Guarantor, at its option, may apply the Net Proceeds of such Asset Sale to permanently reduce Obligations under Indebtedness of Restricted Subsidiaries that are not the Issuer or not Guarantors, and to correspondingly reduce commitments with respect thereto; or
(6) by the Company or any Restricted Subsidiary, then the Company or such Restricted Subsidiary, at its option, may apply the Net Proceeds from such Asset Sale to (a) make an Investment in any one or more businesses; provided, however, that such Investment in any business is in the form of the acquisition of Capital Stock and results in the Issuer or Restricted Subsidiary, as the case may be, owning an amount of the Capital Stock of such business such that it constitutes a Restricted Subsidiary, (b) acquire properties, (c) make capital expenditures or (d) acquire other assets that, in the case of each of clauses (a), (b), (c) and (cd) either (x) are used or useful in a Similar Business or (y) replace the businesses, properties or assets that are the subject of such Asset Sale; provided, however, that, in the case of clause (6) above, a binding commitment shall be treated as a permitted application of the Net Proceeds from the date of such commitment so long as the Issuer or such other Restricted Subsidiary enters into such commitment with the good faith expectation that such Net Proceeds shall be applied to satisfy such commitment within the later of 18 months after receipt of such Net Proceeds and 180 days following such commitment; provided further, however, that if such commitment is cancelled or terminated after the later of such 18 month or 180 day period for any reason before such Net Proceeds are applied, then such Net Proceeds shall constitute Excess Proceeds.
(c) Any Net Proceeds from any Asset Sale pursuant to Section 4.10(b) that are not invested or applied as provided and within the time period set forth in Section 4.10(b) hereof shall be deemed to constitute “Excess Proceeds,” except the amount of Excess Proceeds shall be reduced by the sum of the amount of the Series B Notes offered to be purchased in an offer pursuant to clause (2) above and the amount of Series A Notes offered to be purchased in a Series A Notes Purchase Offer by reason of clause (2) above. When the aggregate amount of Excess Proceeds with respect to the Series B Notes exceeds $50,000,000, the Issuer shall make an offer to all Holders of the Series B Notes and, if required by the terms of any Pari Passu Indebtedness, to the holders of such Pari Passu Indebtedness (an “Asset Sale Offer”), to purchase the maximum aggregate principal amount of such Series B Notes and the maximum aggregate principal amount (or accreted value, if less) of such Pari Passu Indebtedness that is a minimum of $2,000 or an integral multiple of $1,000 thereof (in aggregate principal amount) that may be purchased out of the Excess Proceeds at an offer price in cash in an amount equal to 100% of the principal amount thereof plus accrued and unpaid interest to the date fixed for the purposes closing of such offer, in accordance with the procedures set forth in this Indenture. The Issuer shall commence an Asset Sale Offer with respect to Excess Proceeds within 20 Business Days after the date that Excess Proceeds exceed $50,000,000 by mailing the notice required pursuant to the terms of this provision Indenture, with a copy to the Trustee or otherwise in accordance with the Applicable Procedures of DTC. The Issuer, in its sole discretion, may satisfy the foregoing obligations with respect to any Net Proceeds from an Asset Sale by making an Asset Sale Offer with respect to such Net Proceeds prior to the expiration of the relevant 18 month period (or such longer period provided above) or with respect to Excess Proceeds of $50,000,000 or less. To the extent that the aggregate principal amount of Series B Notes and the aggregate principal amount (or accreted value, if applicable) of such Pari Passu Indebtedness tendered pursuant to an Asset Sale Offer is less than the Excess Proceeds with respect to the Series B Notes, the Issuer may use any remaining Excess Proceeds for general corporate purposes, including to make Restricted Payments, subject to the other covenants contained in this Indenture or for purposes any other purpose not otherwise prohibited by this Indenture. If the aggregate principal amount of Series B Notes and the aggregate principal amount (or accreted value, if applicable) of the second paragraph Pari Passu Indebtedness surrendered in an Asset Sale Offer exceeds the amount of Excess Proceeds with respect to the Series B Notes, the Trustee or the Paying Agent shall select the Series B Notes and the Issuer or the agent for such Pari Passu Indebtedness shall select such other Pari Passu Indebtedness to be purchased on a pro rata basis based on the principal amount of the Series B Notes and the aggregate principal amount (or accreted value, if applicable) of such Pari Passu Indebtedness tendered. Upon completion of any such Asset Sale Offer, the amount of Excess Proceeds shall be reset at zero. Pending the final application of any Net Proceeds pursuant to this Section 4.10; and, the holder of such Net Proceeds may apply such Net Proceeds temporarily to reduce Indebtedness outstanding under a revolving credit facility, including under any Credit Facilities, or otherwise invest or apply such Net Proceeds in any manner not prohibited by this Indenture. The Issuer shall comply with the requirements of Rule 14e-1 under the Exchange Act and any other securities laws and regulations thereunder to the extent such laws or regulations are applicable in connection with the repurchase of the Series B Notes pursuant to an Asset Sale Offer. To the extent that the provisions of any securities laws or regulations conflict with the provisions of this Indenture, the Issuer shall comply with the applicable securities laws and regulations and shall not be deemed to have breached its obligations described in this Indenture by virtue thereof.
Appears in 1 contract
Asset Sales. The Company shall Borrower will not, and shall will not permit any Subsidiary to, sell, transfer, lease or otherwise dispose of (in one transaction or in a series of transactions) all or a substantial portion of its Restricted assets (whether now owned or hereafter acquired), except that the Borrower and the Subsidiaries tomay (a) sell, consummate an Asset Sale unless (i) lease or otherwise dispose of inventory as a part of the Company outsourcing of a manufacturing activity previous conducted by the Borrower pursuant to which the Borrower or the applicable Restricted Subsidiary, as the case may be, receives consideration at the time Subsidiaries intend to repurchase substantially all of such Asset Sale at least equal inventory (or goods manufactured therewith) for resale to customers, (b) sell, lease or otherwise dispose of inventory and obsolete equipment, in the ordinary course of business, (c) sell, lease or otherwise dispose of property in any individual transaction not related to any other such transaction if the aggregate fair market value of the assets sold sold, leased or otherwise disposed of in such transaction is less than $5,000,000, (as determined d) sell, lease or otherwise dispose of property to the Borrower or a Subsidiary in good faith any transaction permitted by the CompanySection 6.04(a)(iii); , (iie) at least 75% of the consideration received by the Company or the Restricted Subsidiarysell accounts receivable in Non-Recourse Receivables Sales, as the case may be, from such Asset Sale shall be in the form of cash or Cash Equivalents; provided that the aggregate amount of:
(a) any liabilities (as shown on of accounts receivable of the Company’s or such Restricted Subsidiary’s most recent balance sheet or in Borrower and the footnotes thereto, or if incurred or accrued subsequent to the date of such balance sheet, such liabilities that would Subsidiaries which shall have been shown on the Company’s or such Restricted Subsidiary’s balance or the footnotes thereto if such incurrence or accrual had taken place on the date of such balance sheet, as determined by the Company) of the Company or any such Restricted Subsidiary (other than liabilities that are by their terms subordinated to the Notes) that are assumed by the transferee of any such assets; (b) any securities, notes or other obligations received by the Company or any such Restricted Subsidiary from such transferee that are converted by the Company or such Restricted Subsidiary into cash within 180 days of the receipt thereof (to the extent of the cash received); and (c) any Designated sold in Non-cash 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 Non-cash Consideration received Recourse Receivables Sales pursuant to this clause (c) after December 14, 2010 that is at that time outstanding, Section 6.05 during any fiscal quarter shall not to exceed the greater of (x) $150 million 150,000,000 and 5(y) 15% of Total Assets the amount equal to the aggregate amount outstanding of all accounts receivable of the Borrower and the Subsidiaries as of the last day of such fiscal quarter plus the aggregate amount of such accounts receivable sold during such quarter in Non-Recourse Receivables Sales, (f) sell (and leaseback) the San Diego Facility to the extent permitted under Section 6.03, and (g) sell, lease or otherwise dispose of property in any other transaction otherwise permitted under this Agreement, provided that the aggregate book value of all assets sold, leased or otherwise disposed of in transactions under this clause (g) shall not when taken together at the time of each such sale, lease or other disposition exceed 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, in each greater of (a), (bx) $150,000,000 and (cy) above, be deemed to be cash for the purposes 15% of this provision or for purposes Consolidated Tangible Assets as of the second paragraph last day of this the most recent fiscal period in respect of which financial statements have been delivered pursuant to Section 4.10; and5.01 at such time.
Appears in 1 contract
Asset Sales. (a) The Company shall not, and shall not permit any of its Restricted Subsidiaries to, consummate cause or make an Asset Sale Sale, unless (ix) the Company or the applicable any of its Restricted SubsidiarySubsidiaries, as the case may be, receives consideration at the time of such Asset Sale at least equal to the fair market value of the assets sold or otherwise disposed of Fair Market Value (as determined in good faith by the Company); ) of the assets sold or otherwise disposed of, and (iiy) at least 75% of the consideration therefor received by the Company or the such Restricted Subsidiary, as the case may be, from such Asset Sale shall be is in the form of cash or Cash Equivalents; provided that the amount of:
(ai) any liabilities (as shown on the Company’s or such Restricted Subsidiary’s most recent balance sheet or in the footnotes notes thereto, or if incurred or accrued subsequent to the date of such balance sheet, such liabilities that would have been shown on the Company’s or such Restricted Subsidiary’s balance or the footnotes thereto if such incurrence or accrual had taken place on the date of such balance sheet, as determined by the Company) of the Company or any such Restricted Subsidiary of the Company (other than liabilities that are by their terms subordinated to the NotesSecurities) that are assumed by the transferee of any such assets; ,
(bii) any securities, notes or other obligations or other securities or assets received by the Company or any such Restricted Subsidiary of the Company from such transferee that are converted by the Company or such Restricted Subsidiary of the Company into cash within 180 days of the receipt thereof (to the extent of the cash received); and , and
(ciii) any Designated Non-cash Consideration received by the Company or any of its Restricted Subsidiaries in such Asset Sale having an aggregate fair market valueFair Market Value, taken together with all other Designated Non-cash Consideration received pursuant to this clause (ciii) after December 14, 2010 that is at that time outstanding, not to exceed the greater of $150 20.0 million and 5% of Total Assets at the time of the receipt of such Designated Non-cash Consideration (with the fair market value 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 of (a), (b) and (c) above, ; shall be deemed to be cash Cash Equivalents for the purposes of this provision Section 4.06(a).
(b) Within 365 days after the Company’s or for purposes any Restricted Subsidiary of the second paragraph Company’s receipt of the Net Proceeds of any Asset Sale, the Company or such Restricted Subsidiary of the Company may apply the Net Proceeds from such Asset Sale, at its option:
(i) to permanently reduce Obligations under the Credit Agreement (and, in the case of revolving Obligations, to correspondingly reduce commitments with respect thereto) or Pari Passu Indebtedness (provided that if the Company or any Guarantor shall so reduce Obligations under Pari Passu Indebtedness, the Company shall equally and ratably reduce Obligations under the Securities by making an offer (in accordance with the procedures set forth below for an Asset Sale Offer) to all Holders to purchase at a purchase price equal to 100% of the principal amount thereof, plus accrued and unpaid interest and additional interest, if any, the pro rata principal amount of Securities) or Indebtedness of a Restricted Subsidiary that is not a Guarantor, in each case other than Indebtedness owed to the Company or an Affiliate of the Company;
(ii) to an investment in any one or more businesses (provided that if such investment is in the form of the acquisition of Capital Stock of a Person, such acquisition results in such Person becoming a Restricted Subsidiary of the Company), assets, or property or capital expenditures, in each case used or useful in a Similar Business;
(iii) to make an investment in any one or more businesses (provided that if such investment is in the form of the acquisition of Capital Stock of a Person, such acquisition results in such Person becoming a Restricted Subsidiary of the Company), properties or assets that replace the properties and assets that are the subject of such Asset Sale;
(iv) to make a capital expenditure; provided that (x) in the case of Section 4.06(b)(ii), (iii) and (iv), a binding commitment shall be treated as a permitted application of the Net Proceeds from the date of such commitment and, (y) in the event such binding commitment is later canceled or terminated for any reason before such Net Proceeds are so applied, the Company or such Restricted Subsidiary enters into another binding commitment within nine months of such cancellation or termination of the prior binding commitment; provided, further that the Company or such Restricted Subsidiary may only enter into such a commitment under clause (y) one time with respect to each Asset Sale. Pending the final application of any such Net Proceeds, the Company or such Restricted Subsidiary of the Company may temporarily reduce Indebtedness under a revolving credit facility, if any, or otherwise invest such Net Proceeds in any manner that is not prohibited by this Indenture. Any Net Proceeds from any Asset Sale that are not applied as provided and within the time period set forth in the first sentence of this Section 4.10; 4.06(b) (it being understood that any portion of such Net Proceeds used to make an offer to purchase Securities, as described in clause (i) above, shall be deemed to have been invested whether or not such offer is accepted) shall be deemed to constitute “Excess Proceeds.” When the aggregate amount of Excess Proceeds exceeds $20.0 million, the Company shall make an offer to all Holders of Securities (and, at the option of the Company, to holders of any Pari Passu Indebtedness) (an “Asset Sale Offer”) to purchase the maximum principal amount of Securities (and such Pari Passu Indebtedness), that is an integral multiple of $1,000 that may be purchased out of the Excess Proceeds at an offer price in cash in an amount equal to 100% of the principal amount thereof (or, in the event such Pari Passu Indebtedness was issued with significant original issue discount, 100% of the accreted value thereof), plus accrued and unpaid interest and additional interest, if any (or, in respect of such Pari Passu Indebtedness, such lesser price, if any, as may be provided for by the terms of such Pari Passu Indebtedness), to the date fixed for the closing of such offer, in accordance with the procedures set forth in this Section 4.06. The Company shall commence an Asset Sale Offer with respect to Excess Proceeds within ten (10) Business Days after the date that Excess Proceeds exceeds $20.0 million by mailing the notice required pursuant to the terms of Section 4.06(f), with a copy to the Trustee. To the extent that the aggregate amount of Securities (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. If the aggregate principal amount of Securities (and such Pari Passu Indebtedness) surrendered by holders thereof exceeds the amount of Excess Proceeds, the Trustee shall select the Securities to be purchased in the manner described in Section 3.04. Upon completion of any such Asset Sale Offer, the amount of Excess Proceeds shall be reset at zero. An Asset Sale Offer may be made in advance of the consummation of an Asset Sale, and conditioned upon the consummation of such Asset Sale, if a definitive agreement is in place for the Asset Sale at the time of making of the Asset Sale Offer.
(c) The Company shall comply with the requirements of Rule 14e-1 under the Exchange Act and any other securities laws and regulations to the extent such laws or regulations are applicable in connection with the repurchase of the Securities pursuant to an Asset Sale Offer. To the extent that the provisions of any securities laws or regulations conflict with the provisions of this Indenture, the Company shall comply with the applicable securities laws and regulations and shall not be deemed to have breached its obligations described in this Indenture by virtue thereof.
(d) Not later than the date upon which copy of the 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
Appears in 1 contract
Asset Sales. (a) The Company shall not, and shall not permit any of its Restricted Subsidiaries to, consummate cause, make or suffer to exist an Asset Sale Sale, unless (ix) the Company Company, or the applicable 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 (as determined in good faith by the Company); ) of the assets sold or otherwise disposed of and (iiy) at least 75% of the consideration therefor received by the Company Company, or the such Restricted Subsidiary, as the case may be, from such Asset Sale shall be is in the form of cash or Cash Equivalents; provided that the amount of:
of (ai) any liabilities (as shown on the Company’s 's or such Restricted Subsidiary’s 's most recent balance sheet or in the footnotes notes thereto, or if incurred or accrued subsequent to the date of such balance sheet, such liabilities that would have been shown on the Company’s or such Restricted Subsidiary’s balance or the footnotes thereto if such incurrence or accrual had taken place on the date of such balance sheet, as determined by the Company) of the Company or any such Restricted Subsidiary (other than liabilities that are by their terms subordinated to the Notes) Securities), that are assumed by the transferee of any such assets; , (bii) any securities, notes or other obligations 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 the receipt thereof (to the extent of the cash received); ) within 180 days following the closing of such Asset Sale and (ciii) any Designated Non-cash 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 Non-cash Noncash Consideration received pursuant to this clause (ciii) after December 14, 2010 that is at that time outstanding, not to exceed the greater of (x) $150 50.0 million and 5or (y) 15% of Total Assets at the time of the receipt of such Designated Non-cash Noncash Consideration (with the fair market value of each item of Designated Non-cash Noncash Consideration being measured at the time received and without giving effect to subsequent changes in value), shall, in each of (a), (b) and (c) above, shall be deemed to be cash for the purposes of this provision and for no other purpose.
(b) Within 365 days after the Company's or for purposes any Restricted Subsidiary's receipt of the second paragraph Net Proceeds of any Asset Sale, the Company or such Restricted Subsidiary, at its option, may (i) apply the Net Proceeds from such Asset Sale to permanently reduce (x) Obligations under the Senior Credit Facilities (and to correspondingly reduce commitments with respect thereto), (y) other Senior Indebtedness or Senior Subordinated Indebtedness (and to correspondingly reduce commitments with respect thereto) (provided that if the Company shall so reduce Obligations under Senior Subordinated Indebtedness, it shall equally and ratably reduce Obligations under the Securities if the Securities are then prepayable or, if the Securities may not then be prepaid, the Company shall make an offer (in accordance with the procedures set forth below for an Asset Sale Offer) to all Holders to purchase at 100% of the principal amount thereof, plus the amount of accrued but unpaid interest, if any, on the amount of Securities that would otherwise be prepaid) or (z) Indebtedness of a Wholly Owned Restricted Subsidiary (other than Indebtedness owed to the Company or another Restricted Subsidiary), (ii) apply the Net Proceeds from such Asset Sale to 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 and/or (iii) apply the Net Proceeds from such Asset Sale to an investment in properties or assets that replace the properties and assets that are the subject of such Asset Sale. Any Net Proceeds from the Asset Sale that are not invested or applied as provided and within the time period set forth in the first sentence of this Section 4.104.06(b) shall be deemed to constitute "Excess Proceeds." When the aggregate amount of Excess Proceeds exceeds $15.0 million, the Company shall make an offer to all Holders (an "Asset Sale Offer") to purchase the maximum principal amount of Securities, that is an integral multiple of $1,000, that may be purchased out of the Excess Proceeds at an offer price in cash in an amount equal to 100% of the principal amount thereof, plus accrued and unpaid interest, if any, to the date fixed for the closing of such offer (the "Offered Price"). Within 10 Business Days after the date on which the aggregate amount of Excess Proceeds exceeds $15.0 million, the Company shall give to each Holder, with a copy to the Trustee, a notice stating:
(i) that the Holder has the right to require the Company to repurchase such Holder's Securities at the Offered Price, subject to proration in the event the Excess Proceeds are less than the aggregate Offered Price of all Securities tendered;
(ii) the date of purchase of Securities pursuant to the Asset Sale Offer (the "Asset Sale Purchase Date"), which shall be no earlier than 30 days nor later than 60 days from the date such notice is mailed;
(iii) that the Offered Price will be paid to Holders electing to have Securities purchased on the Asset Sale Purchase Date, provided that a Holder must surrender its Security to the Paying Agent at the address specified in the notice prior to the close of business at least five Business Days prior to the Asset Sale Purchase Date;
(iv) any Security not tendered will continue to accrue interest pursuant to its terms;
(v) that unless the Company defaults in the payment of the Offered Price, any Security accepted for payment pursuant to the Asset Sale Offer shall cease to accrue interest on and after the Asset Sale Purchase Date;
(vi) that Holders will be entitled to withdraw their tendered Securities and their election to require the Company to purchase such Securities, provided that the Company receives, not later than the close of business on the third Business Day preceding the Asset Sale Purchase Date, a telegram, telex, facsimile transmission or letter setting forth the name of the Holder, the principal amount of the Securities tendered for purchase, and a statement that such Holder is withdrawing its election to have such Securities purchased;
(vii) that the Holders whose Securities are being purchased only in part will be issued new Securities equal in principal amount to the unpurchased portion of the Securities surrendered; which unpurchased portion must be equal to $1,000 in principal amount or an integral multiple thereof; and
(viii) the instructions a Holder must follow in order to have his Securities purchased in accordance with this Section 4.06.
(c) To the extent that the aggregate amount of Securities tendered pursuant to an Asset Sale Offer is less than the Excess Proceeds, the Company may use any remaining Excess Proceeds for general corporate purposes. If the aggregate principal amount of Securities surrendered by Holders thereof exceeds the amount of Excess Proceeds, the Trustee shall select the Securities to be purchased in the manner described in Section 4.06(d). Upon completion of any such Asset Sale Offer, the amount of Excess Proceeds shall be reset at zero.
(d) If more Securities are tendered pursuant to an Asset Sale Offer than the Company is required to purchase, selection of such Securities for purchase shall be made by the Trustee in compliance with the requirements of the principal national securities exchange, if any, on which such Securities are listed, or, if such Securities are not so listed, on a pro rata basis, by lot or by such other method as the Trustee shall deem fair and appropriate (and in such manner as complies with applicable legal requirements); provided that no Securities of $1,000 or less shall be purchased in part.
(e) Notices of purchase shall be mailed by first class mail, postage prepaid, at least 30 but not more than 60 days before the Asset Sale Purchase Date to each Holder of Securities to be purchased at such Holder's registered address. If any Security is to be purchased in part only, any notice of purchase that relates to such Security shall state the portion of the principal amount thereof that has been or is to be purchased. A new Security in principal amount equal to the unpurchased portion of any Security purchased in part shall be issued in the name of the Holder thereof upon cancelation of the original Security. On and after the Asset Sale Purchase Date unless the Company defaults in payment of the Offered Price, interest shall cease to accrue on Securities or portions thereof purchased.
(f) The Company shall comply with the requirements of Rule 14e-1 under the Exchange Act and any other securities laws and regulations thereunder to the extent such laws or regulations are applicable in connection with the repurchase of the Securities pursuant to an Asset Sale Offer. To the extent that the provisions of any securities laws or regulations conflict with the provisions of this Indenture, the Company shall comply with the applicable securities laws and regulations and shall not be deemed to have breached its obligations described in this Indenture by virtue thereof.
Appears in 1 contract
Asset Sales. The Company shall not, and shall not permit any of its the Restricted Subsidiaries to, consummate an Asset Sale unless unless:
(ia) the Company (or the applicable Restricted Subsidiary, as the case may be, ) receives consideration at the time of such the Asset Sale at least equal to the fair market value of the assets or Equity Interests issued or sold or otherwise disposed of of;
(as b) 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; and
(iic) at least 7570% of the consideration received in the Asset Sale by the Company or the such Restricted Subsidiary, as the case may be, from such Asset Sale shall be Subsidiary is in the form of cash or cash, Cash Equivalents; provided that Equivalents and/or Replacement Assets. For purposes of this provision, each of the amount offollowing will be deemed to be cash:
(ai) any liabilities (liabilities, as shown on the Company’s or such Restricted Subsidiary’s most recent balance sheet or in the footnotes thereto, or if incurred or accrued subsequent to the date of such balance sheet, such liabilities that would have been shown on the Company’s or such Restricted Subsidiary’s balance or the footnotes thereto if such incurrence or accrual had taken place on the date of such balance sheet, as determined by the Company) of the Company or any such Restricted Subsidiary (other than contingent liabilities and liabilities that are by their terms subordinated to the NotesNotes or any Subsidiary Guarantee) that are assumed by the transferee of any such assets; assets and from which the Company or such Restricted Subsidiary is released from further liability;
(bii) any securities, notes or other obligations received by the Company or any such Restricted Subsidiary from such transferee that are converted by the Company or such Restricted Subsidiary into cash within 180 days of the receipt thereof (receipt, to the extent of the cash received)received in that conversion; and and
(ciii) any Designated Non-cash 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 Non-cash Consideration received pursuant to this clause (ciii) after December 14, 2010 that is at that time outstanding, not to exceed the greater of $150 50 million and 5% 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). Within 365 days after the receipt of any Net Proceeds from an Asset Sale, shall, in each of the Company or a Restricted Subsidiary may apply those Net Proceeds at its option:
(a) to repay Senior Debt or Indebtedness of a Restricted Subsidiary that is not a Guarantor;
(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;
(d) to acquire Replacement Assets; or
(e) to acquire other long-term assets that are used or useful in a Permitted Business. The Company or the relevant Restricted Subsidiary will be deemed to have complied with the immediately preceding sentence with respect to any such Net Proceeds if it enters into a binding agreement to make an acquisition or capital expenditure permitted pursuant to clause (b), (bc), (d) or (e) of the immediately preceding sentence in an amount equal to such Net Proceeds within such 365 days; provided that, if the relevant acquisition or capital expenditure is not consummated or completed, as the case may be, within the later of (x) 365 days after the receipt of the relevant Net Proceeds and (cy) above180 days after the date of such binding agreement, such Net Proceeds will constitute “Excess Proceeds.” Pending the final application of any Net Proceeds, the Company or the Restricted Subsidiary may temporarily invest the 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 preceding paragraph will constitute “Excess Proceeds.” When the aggregate amount of Excess Proceeds exceeds $75.0 million, the Company shall make an offer ( an “Asset Sale Offer”) to all Holders of Notes and all holders of other Indebtedness that is pari passu with the Notes containing provisions similar to those set forth herein with respect to offers to purchase or redeem with the proceeds of sales of assets to purchase the maximum principal amount of Notes and such other pari passu Indebtedness that may be purchased out of the Excess Proceeds. The offer price in any Asset Sale Offer will be equal to 100% of principal amount plus accrued and unpaid interest, if any, to the date of purchase, and will be payable in cash. If any Excess Proceeds remain after consummation of an Asset Sale Offer, the Company may use those Excess Proceeds for any purpose not otherwise prohibited by the Indenture. If the aggregate principal amount of notes and other pari passu Indebtedness tendered into such Asset Sale Offer exceeds the amount of Excess Proceeds, the Trustee will select the Notes and such other pari passu Indebtedness to be purchased on a pro rata basis. Upon completion of each Asset Sale Offer, the amount of Excess Proceeds will be reset at zero. The Company will comply with the requirements of Rule 14e-1 under the Exchange Act and any other securities laws and regulations thereunder to the extent those laws and regulations are applicable in connection with each repurchase of Notes pursuant to an Asset Sale Offer. To the extent that the provisions of any securities laws or regulations conflict with Section 3.04 of this Sixth Supplemental Indenture or this Section 4.04, the Company will comply with the applicable securities laws and regulations and will not be deemed to be cash for the purposes have breached its obligations under Section 3.04 of this provision Sixth Supplemental Indenture or for purposes of the second paragraph of this Section 4.10; and4.04, by virtue of such conflict.
Appears in 1 contract
Asset Sales. (a) The Company shall not, and shall not permit any of its Restricted Subsidiaries to, consummate cause, make or suffer to exist an Asset Sale Sale, unless (ix) the Company Company, or the applicable its Restricted SubsidiarySubsidiaries, as the case may be, receives consideration at the time of such Asset Sale at least equal to the fair market value of the assets sold or otherwise disposed of (as determined in good faith by the Company); ) of the assets sold or otherwise disposed of and (iiy) at least 75% of the consideration therefor received by the Company Company, or the such Restricted Subsidiary, as the case may be, from such Asset Sale shall be is in the form of cash or Cash Equivalents; provided that the amount of:
of (aA) any liabilities (as shown on the Company’s or such Restricted Subsidiary’s most recent balance sheet or in the footnotes notes thereto, or if incurred or accrued subsequent to the date of such balance sheet, such liabilities that would have been shown on the Company’s or such Restricted Subsidiary’s balance or the footnotes thereto if such incurrence or accrual had taken place on the date of such balance sheet, as determined by the Company) of the Company or any such Restricted Subsidiary (other than liabilities that are by their terms subordinated to the Notes) ), that are assumed by the transferee of any such assets; , (bB) any securities, notes or other obligations received by the Company or any such Restricted Subsidiary from such transferee that are converted by the Company or such Restricted Subsidiary into cash within 180 days of the receipt thereof (to the extent of the cash received); ) within 180 days following the closing of such Asset Sale and (cC) any Designated Non-cash 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 Non-cash Noncash Consideration received pursuant to this clause (cC) after December 14, 2010 that is at that time outstanding, not to exceed the greater of (x) $150 50.0 million and 5or (y) 15% of Total Assets at the time of the receipt of such Designated Non-cash Noncash Consideration (with the fair market value of each item of Designated Non-cash Noncash Consideration being measured at the time received and without giving effect to subsequent changes in value), shall, in each of (a), (b) and (c) above, shall be deemed to be cash Cash Equivalents for the purposes of this provision and for no other purpose.
(b) Within 365 days after the Company’s or for purposes any Restricted Subsidiary’s receipt of the second Net Proceeds of any Asset Sale, the Company or such Restricted Subsidiary may apply the Net Proceeds from such Asset Sale, at its option, (i) to permanently reduce Obligations under the Credit Facility (and to correspondingly reduce commitments with respect thereto) 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 if the Notes are then prepayable or, if the Notes may not be then prepaid, the Company shall make an offer (in accordance with the procedures set forth below for an Asset Sale Offer) to all Holders to purchase at 100% of the principal amount thereof the amount of Notes that would otherwise be prepaid), (ii) to 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 and/or (iii) to make an investment in properties or assets that replace the properties and assets that are the subject of such Asset Sale. Pending the final application of any such Net Proceeds, 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 the Asset Sale that are not invested as provided and within the time period set forth in the first sentence of this paragraph will be deemed to constitute “Excess Proceeds.” When the aggregate amount of Excess Proceeds exceeds $15.0 million, the Company shall make an offer 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 proceeds of sales of assets (an “Asset Sale Offer”) to purchase the maximum principal amount of Notes, that is an integral multiple of $1,000, and such Pari Passu Indebtedness that may be purchased out of the Excess Proceeds at an offer price in cash in an amount equal to 100% of the principal amount thereof, plus accrued and unpaid interest and Liquidated Damages, if any, to the date fixed for the closing of such offer (the “Offered Price”). The Company shall commence an Asset Sale Offer with respect to Excess Proceeds within 10 Business Days after the date on which the aggregate amount of Excess Proceeds exceeds $15.0 million by giving to each Holder of the Notes, with a copy to the Trustee, in the manner provided in Section 106 a notice stating:
(i) that the Holder has the right to require the Company to repurchase such Holder’s Notes at the Offered Price, subject to proration in the event the Excess Proceeds are less than the aggregate Offered Price of all Notes tendered;
(ii) the date of purchase of Notes pursuant to the Asset Sale Offer (the “Asset Sale Purchase Date”), which shall be no earlier than 30 days nor later than 60 days from the date such notice is mailed;
(iii) that the Offered Price will be paid to Holders electing to have Notes purchased on the Asset Sale Purchase Date; provided that a Holder must surrender its Note to the Paying Agent at the address specified in the notice prior to the close of business at least five Business Days prior to the Asset Sale Purchase Date;
(iv) any Note not tendered will continue to accrue interest pursuant to its terms;
(v) that unless the Company defaults in the payment of the Offered Price, any Note accepted for payment pursuant to the Asset Sale Offer shall cease to accrue interest on and after the Asset Sale Purchase Date;
(vi) that Holders will be entitled to withdraw their tendered Notes and their election to require the Company to purchase such Notes; provided that the Company receives, not later than the close of business on the third Business Day preceding the Asset Sale Purchase Date, a telegram, telex, facsimile transmission or letter setting forth the name of the Holder, the principal amount of the Notes tendered for purchase, and a statement that such Holder is withdrawing its election to have such Notes purchased;
(vii) that the Holders whose Notes are being purchased only in part will be issued new Notes equal in principal amount to the unpurchased portion of the Notes surrendered, which unpurchased portion must be equal to $1,000 in principal amount or an integral multiple thereof; and
(viii) the instructions a Holder must follow in order to have his Notes purchased in accordance with this Section 1017. To the extent that the aggregate amount of Notes and other 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 of Notes and other Pari Passu Indebtedness tendered into such Asset Sale offer surrendered by Holders thereof exceeds the amount of Excess Proceeds, such Excess Proceeds shall be allocated pro rata (based on the aggregate principal amount tendered) among the Notes and such Pari Passu Indebtedness, and the Trustee shall select the Notes to be purchased on a pro rata basis in the manner described in Section 1104. Upon completion of any such Asset Sale Offer, the amount of Excess Proceeds shall be reset at zero. The Company shall comply with the requirements of Rule 14e-1 under the Exchange Act and any other securities laws and regulations thereunder to the extent such laws and regulations are applicable in connection with the repurchase of Notes pursuant to an Asset Sale Offer. To the extent that the provisions of any securities laws or regulations conflict with the provisions of this Section 4.10; and1017, the Company shall comply with the applicable securities laws and regulations and shall not be deemed to have breached its obligations under this Indenture by virtue thereof.
Appears in 1 contract
Asset Sales. (a) The Company Issuer shall not, and shall not permit any of its Restricted Subsidiaries to, consummate an Asset Sale unless Sale, unless:
(i1) the Company Issuer or the applicable 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 (as determined in good faith by the Company)Issuer) of the assets sold or otherwise disposed of; and
(ii2) except in the case of a Permitted Asset Swap, at least 75% of the consideration therefor received by the Company Issuer or the such Restricted Subsidiary, as the case may be, from such Asset Sale shall be is in the form of cash or Cash Equivalents; provided that the amount of:
(aA) any liabilities (as shown on the CompanyIssuer’s or such Restricted Subsidiary’s most recent balance sheet or in the footnotes thereto, or if incurred or accrued subsequent to ) of the date of such balance sheet, such liabilities that would have been shown on the Company’s Issuer or such Restricted Subsidiary’s balance or the footnotes thereto if such incurrence or accrual had taken place on the date of such balance sheet, as determined by the Company) of the Company or any such Restricted Subsidiary (other than liabilities that are by their terms subordinated to the NotesNotes (or Guarantees) or that are owed to the Issuer or a Restricted Subsidiary, that are assumed by the transferee of any such assets; assets and for which the Issuer and all of its Restricted Subsidiaries have been validly released by all creditors in writing,
(bB) any securities, notes or other obligations or assets received by the Company Issuer or any such Restricted Subsidiary from such transferee that are converted by the Company Issuer or such Restricted Subsidiary into cash within 180 days of the receipt thereof (to the extent of the cash received); and ) within 180 days following the closing of such Asset Sale, and
(cC) any Designated Non-cash Consideration received by the Company Issuer or any of its such Restricted Subsidiaries 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) after December 14, 2010 that is at that time outstanding, not to exceed the greater of $150 million and 5% of Total Assets 300,000,000 at the time of the receipt of such Designated Non-cash Consideration (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 valuevalue shall be deemed to be cash for purposes of this provision and for no other purpose; and
(3) if such Asset Sale involves the disposition 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 received in such Asset Sale shall be expressly made subject to Liens under the Security Documents.
(b) Within 18 months after the receipt of any Net Proceeds of any Asset Sale by the Issuer or any Restricted Subsidiary, the Issuer or such Restricted Subsidiary, at its option, may apply the Net Proceeds from such Asset Sale,
(1) to permanently reduce:
(A) Obligations constituting First Priority Lien Obligations under the General Credit Facilities (other than any General Credit Facilities that also constitute Public Debt) (and, if the Indebtedness repaid is revolving credit Indebtedness, to correspondingly reduce commitments with respect thereto);
(B) until the ABL Date, shallObligations under the ABL Facility (and to correspondingly reduce commitments with respect thereto) so long as the Net Proceeds of the Asset Sale are with respect to ABL Collateral;
(C) Obligations under (i) the Notes (to the extent such purchases are at or above 100% of the principal amount thereof) or (ii) any other First Priority Lien Obligations of the Issuer or a Restricted Guarantor (and to correspondingly reduce commitments with respect thereto) if and to the extent required by the terms of such Obligations; provided that the Issuer shall equally and ratably reduce Obligations under the Notes as provided in Section 5 of each of the Notes and Section 3.02 hereof through open-market purchases (to the extent such purchases are at or above 100.0% of the principal amount thereof) or by making an offer (in accordance with the procedures set forth in Section 3.09 and Section 4.10(c) hereof) to all Holders of Notes to purchase a pro rata amount of Notes at 100% of the principal amount thereof, plus accrued but unpaid interest; or
(D) Indebtedness of a Restricted Subsidiary that is not a Guarantor (and to correspondingly reduce commitments with respect thereto) so long as the Net Proceeds of the Asset Sale are with respect to assets owned by such Restricted Subsidiary that is not a Guarantor and the Net Proceeds of such Asset Sale are received by such Restricted Subsidiary as a result of an Asset Sale by such Restricted Subsidiary; or
(2) to (a) make an Investment in any one or more businesses, provided, however, that such Investment in any business is in the form of the acquisition of Capital Stock and results in the Issuer or Restricted Subsidiary, as the case may be, owning an amount of the Capital Stock of such business such that it constitutes a Restricted Subsidiary, (b) acquire properties, (c) make capital expenditures or (d) acquire other assets that, in the case of each of clauses (a), (b), (c) and (cd) either (x) are used or useful in a Similar Business or (y) replace the businesses, properties or assets that are the subject of such Asset Sale; provided, however, that, in the case of clause (2) above, a binding commitment shall be treated as a permitted application of the Net Proceeds from the date of such commitment so long as the Issuer or such other Restricted Subsidiary enters into such commitment with the good faith expectation that such Net Proceeds will be applied to satisfy such commitment within the later of 18 months after receipt of such Net Proceeds and 180 days following such commitment; provided further, however, that if such commitment is cancelled or terminated after the later of such 18 month or 180 day period for any reason before such Net Proceeds are applied, then such Net Proceeds shall constitute Excess Proceeds.
(c) Any Net Proceeds from any Asset Sale that are not invested or applied as provided and within the time period set forth in Section 4.10(b) hereof shall be deemed to constitute “Excess Proceeds,” except the amount of Excess Proceeds will be reduced by an amount equal to the difference between (x) the principal amount of the Notes offered to be purchased in a bona fide offer pursuant to Section 4.10(b)(1)(c) and (y) the principal amount of the Notes that were purchased pursuant to such offer. When the aggregate amount of Excess Proceeds with respect to the Notes exceeds $100,000,000, the Issuer shall make an offer to all Holders of the Notes and, if required by the terms of any other First Priority Lien Obligations, to the holder of such First Priority Lien Obligations (an “Asset Sale Offer”), to purchase the maximum aggregate principal amount of such Notes and the maximum aggregate principal amount (or accreted value, if less) of such First Priority Lien Obligations that is a minimum of $2,000 or an integral multiple of $1,000 thereof (in aggregate principal amount) that may be purchased out of the Excess Proceeds at an offer price in cash in an amount equal to 100% of the principal amount thereof (or accreted value, if applicable) plus accrued and unpaid interest to the date fixed for the purposes closing of such offer, in accordance with the procedures set forth in this Indenture. The Issuer shall commence an Asset Sale Offer with respect to Excess Proceeds within ten Business Days after the date that Excess Proceeds exceed $100,000,000 by mailing the notice required pursuant to the terms of this provision Indenture, with a copy to the Trustee or for purposes otherwise in accordance with the procedures of DTC. The Issuer, in its sole discretion, may satisfy the foregoing obligations with respect to any Net Proceeds from an Asset Sale by making an Asset Sale Offer with respect to such Net Proceeds prior to the expiration of the second paragraph relevant 18 month period (or such longer period provided above) or with respect to Excess Proceeds of $100,000,000 or less. To the extent that the aggregate principal amount of Notes and the aggregate principal amount (or accreted value, if applicable) of such First Priority Lien Obligations tendered pursuant to an Asset Sale Offer is less than the Excess Proceeds with respect to the Notes, the Issuer may use any remaining Excess Proceeds for general corporate purposes, subject to the other covenants contained in this Indenture and the Security Documents. If the aggregate principal amount of Notes and the aggregate principal amount (or accreted value, if applicable) of the First Priority Lien Obligations surrendered in an Asset Sale Offer exceeds the amount of Excess Proceeds with respect to the Notes, the Registrar or the Paying Agent shall select the Notes and the Issuer or the agent for such First Priority Lien Obligations shall select such other First Priority Lien Obligations to be purchased on a pro rata basis (or as near a pro rata basis as permitted by the applicable rules and procedures the Depositary) of a based on the principal amount of the Notes and the aggregate principal amount (or accreted value, if applicable) of such First Priority Lien Obligations tendered in accordance with Section 3.09 hereof. Upon completion of any such Asset Sale Offer, the amount of Excess Proceeds shall be reset at zero.
(d) Pending the final application of any Net Proceeds pursuant to this Section 4.10; and, the holder of such Net Proceeds may apply such Net Proceeds temporarily to reduce Indebtedness outstanding under a revolving credit facility, including under any Senior Credit Facilities, or otherwise invest or apply such Net Proceeds in any manner not prohibited by this Indenture.
(e) The Issuer shall comply with the requirements of Rule 14e-1 under the Exchange Act and any other securities laws and regulations thereunder to the extent such laws or regulations are applicable in connection with the repurchase of the Notes pursuant to an Asset Sale Offer. To the extent that the provisions of any securities laws or regulations conflict with the provisions of this Indenture, the Issuer shall comply with the applicable securities laws and regulations and shall not be deemed to have breached its obligations described in this Indenture by virtue thereof.
Appears in 1 contract
Asset Sales. (a) The Company shall will not, and shall will not permit any of its Restricted Subsidiaries to, consummate an Asset Sale unless Sale, unless:
(i) the Company or the applicable 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 (as determined in good faith by the Company)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 the such Restricted Subsidiary, as the case may be, from such Asset Sale shall be is in the form of cash or Cash Equivalents; provided that the amount of:
(aA) any liabilities (as shown on the Company’s or such Restricted Subsidiary’s most recent balance sheet or in the footnotes thereto, or if incurred or accrued subsequent to the date of such balance sheet, such liabilities that would have been shown on the Company’s or such Restricted Subsidiary’s balance or the footnotes thereto if such incurrence or accrual had taken place on the date of such balance sheet, as determined by the Company) of the Company or any such Restricted Subsidiary (Subsidiary, other than liabilities that are by their terms subordinated to the Notes) , that are assumed by the transferee of any such assets; assets and for which the Company and all of its Restricted Subsidiaries have been validly released by all creditors in writing;
(bB) any securities, notes or other obligations or assets received by the Company or any such Restricted Subsidiary from such transferee that are converted by the Company or such Restricted Subsidiary into cash within 180 days of the receipt thereof Cash Equivalents (to the extent of the cash Cash Equivalents received)) within 180 days following the closing of such Asset Sale; and and
(cC) any Designated Non-cash Consideration received by the Company or any of its such Restricted Subsidiaries 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 (cSection 4.10(a)(ii)(C) after December 14, 2010 that is at that time outstanding, not to exceed the greater of (x) $150 75.0 million and 5(y) 2.50% of Total Assets at the time of the receipt of such Designated Non-cash Consideration (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 of (a), (b) and (c) above, ; shall be deemed to be cash Cash Equivalents for the purposes of this provision 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 for purposes 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 one or more businesses; provided that such Investment in any business is in the form of the second paragraph 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, (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 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 defined 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 Section 4.10(b) hereof will be deemed to constitute “Excess Proceeds.” When the aggregate amount of 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 (“Pari Passu Indebtedness”), to the holders of such Pari Passu Indebtedness (an “Asset Sale Offer”), to purchase the maximum aggregate principal amount of the Notes and such Pari Passu Indebtedness that is in an amount equal to at least $2,000, that may be purchased out of the Excess Proceeds at an offer price in cash in an amount equal to 100% 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 offer, in accordance with the procedures set forth in this Indenture. The Company will commence an Asset Sale Offer with respect to Excess Proceeds within ten Business Days after the date that Excess Proceeds exceed $40.0 million by delivering the notice required pursuant to the terms of this Indenture, with a copy to the Trustee. The Company may satisfy the foregoing obligations with respect to any Net Proceeds from an Asset Sale by making an Asset Sale Offer with respect to such Net Proceeds prior to the expiration of the relevant 365 days (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 not less than $2,000 are purchased). Upon completion of any such Asset Sale Offer, the amount of Excess Proceeds that resulted in the Asset Sale Offer shall be reset to zero. The Trustee shall not be liable for selections made in accordance with this paragraph.
(d) Pending the final application of any Net Proceeds pursuant to this Section 4.10; and, 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 any other securities laws and regulations thereunder to the extent such laws or regulations are applicable in connection with the repurchase of the Notes pursuant to an Asset Sale Offer. To the extent that the provisions of any securities laws or regulations conflict with the provisions of this Indenture, the Company will comply with the applicable securities laws and regulations and shall not be deemed to have breached its obligations described in this Indenture by virtue thereof.
(f) The provisions of Section 3.09 hereof and this Section 4.10 may be waived or modified with the written consent of the Holders of a majority in principal amount of the Notes then outstanding.
Appears in 1 contract
Samples: Indenture (Kraton Corp)
Asset Sales. (a) The Company shall not, 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 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;
(B) if the fair market value of (as such assets is in excess of $3.0 million, such value shall be determined in good faith 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
(iiD) at least 75% of the consideration therefor received by the Company or the such Restricted Subsidiary, as the case may be, from such Asset Sale shall be Subsidiary is in the form of cash or Cash Equivalents; provided that the amount of:
. For purposes of this clause (a) D), any liabilities (as shown on the Company’s or such Restricted Subsidiary’s most recent balance sheet or in the footnotes thereto, or if incurred or accrued subsequent to the date of such balance sheet, such liabilities that would have been shown on the Company’s or such Restricted Subsidiary’s balance or the footnotes thereto if such incurrence or accrual had taken place on the date of such balance sheet, as determined by the Company) of the Company or any such Restricted Subsidiary (other than liabilities that are by their terms subordinated to the Notes) that are assumed by the transferee of any such assets; (b) any securities, notes assets or other obligations received by 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 this 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. Notwithstanding the foregoing, in certain circumstances Section 4.17 limits the right of the Company to sell the Miscellaneous Collateral, as more particularly set forth in such Section.
(i) Within 180 days after the receipt of any Net Proceeds from an Asset 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 B 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 from dividends or distributes to all of its stockholders (including the Company or another Restricted Subsidiary) on a PRO RATA basis any proceeds of such transferee that are converted by Asset Sale, the Company or such Restricted Subsidiary into cash within 180 days 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 (b)(i) above will be deemed to constitute "EXCESS PROCEEDS."
(iv) When the aggregate amount of 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 B 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 proceeds of sales of assets (an "ASSET SALE OFFER") to purchase the maximum principal amount of Notes and such other Indebtedness that may be purchased out of the receipt Excess Proceeds, at an offer price in cash in an amount equal to 100% of the principal amount thereof plus accrued and unpaid interest thereon, 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 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 be purchased on a pro rata basis. Upon completion of such offer to purchase, the amount of Excess Proceeds shall be reset at zero. Certain procedures regarding Asset Sale Offers are set forth in Section 3.09 hereof.
(v) The Company shall comply with the requirements of Rule 14e-1 under the Exchange Act and any other securities laws and regulations thereunder to the extent such laws and regulations are applicable in connection with each repurchase of Notes pursuant to an Asset Sale Offer. To the extent that the provisions of any securities laws or regulations conflict with the procedural aspects of the cash received); Asset Sales provisions of this Indenture, the Company shall comply with the procedures required by the applicable securities laws and regulations and shall not be deemed to have breached its obligations under the Asset Sale provisions of this Indenture by virtue of such conflict.
(c) any Designated Non-cash Consideration received Unless otherwise directed by the Trustee during the continuance of an Event of Default, notwithstanding subsection (b) above, any 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 the Xxxxxxx/GACC Assets shall be made only to Holders of the Notes.
(d) The Company or will not, and will not permit any of its Restricted Subsidiaries in to, consummate any Asset Sale of the CBO-REIT Pledged Stock, the QRS 1 Inc. Pledged Stock, the Nomura Bond or the Xxxxxxx/GACC Assets unless such Asset Sale having an aggregate fair market value, taken together with all other Designated Non-cash Consideration received pursuant to this clause (c) after December 14, 2010 that is at that time outstanding, not to exceed the greater of $150 million and 5% 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, in each of (a), (b) and (c) above, be deemed to be cash for the purposes of this provision or for purposes of the second paragraph of this Section 4.10; andon commercially reasonable terms.
Appears in 1 contract
Samples: Indenture (Criimi Mae Inc)
Asset Sales. (a) The Company shall not, and shall not permit any of its Restricted Subsidiaries to, to consummate an Asset Sale unless unless:
(i) the Company (or the applicable such Restricted Subsidiary, as the case may be, ) receives consideration at the time of such the Asset Sale at least equal to the fair market value Fair Market Value of the assets or Equity Interests issued or sold or otherwise disposed of (as determined in good faith by the Company)of; and
(ii) at least 75% of the consideration received in the Asset Sale by the Company or the such Restricted Subsidiary, as the case may be, from such Asset Sale shall be Subsidiary is in the form of cash or Cash Equivalents; provided that . For purposes of this provision, each of the amount offollowing will be deemed to be cash:
(aA) any liabilities (liabilities, as shown recorded on the Company’s or such Restricted Subsidiary’s most recent consolidated balance sheet or in the footnotes thereto, or if incurred or accrued subsequent to the date of such balance sheet, such liabilities that would have been shown on the Company’s or such Restricted Subsidiary’s balance or the footnotes thereto if such incurrence or accrual had taken place on the date of such balance sheet, as determined by the Company) of the Company or any such of its Restricted Subsidiary Subsidiaries (other than contingent liabilities that are by their terms subordinated to the Notesand Subordinated Obligations) that are assumed by the transferee of any such assets; assets (bor otherwise cease to be liabilities of the Company or its Restricted Subsidiaries in connection with the transactions relating to such Asset Sale) pursuant to a written agreement which releases the Company or such Restricted Subsidiary from such liabilities;
(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 or Cash Equivalents within 180 days following the closing of the receipt thereof (Asset Sale, to the extent of the cash receivedor Cash Equivalents received in that conversion;
(C) any Capital Stock or assets of the kind referred to in Section 4.9(b)(iv); and ;
(cD) any Designated Non-cash Cash Consideration received by the Company or any of its Restricted Subsidiaries in such Asset Sale having an aggregate fair market valueFair Market Value, taken together with all other Designated Non-cash Cash Consideration received pursuant to this clause (c) after December 14, 2010 Section 4.9 that is at that any one time outstanding, not to exceed the greater of $150 US$15.0 million and 5% of Total Assets at the time of the receipt of such Designated Non-cash Cash Consideration (with the fair market value Fair Market Value of each item of Designated Non-cash Cash Consideration being measured at the time received and without giving effect to subsequent changes in value), shall, in each ;
(E) Indebtedness (other than Subordinated Obligations) of (a), (b) and (c) above, be deemed to be cash for the purposes of this provision or for purposes any Restricted Subsidiary of the second paragraph Company that is no longer a Restricted Subsidiary as a result of this Section 4.10such Asset Sale, to the extent that the Company and each other Restricted Subsidiary of the Company are released from any Guarantee of such Indebtedness in connection with such Asset Sale;
(F) consideration consisting of Indebtedness (other than Subordinated Obligations) of the Company or any Restricted Subsidiary received from Persons who are not the Company or any Restricted Subsidiary;
(G) accounts receivable of a business retained by the Company or any Restricted Subsidiary of the Company, as the case may be, following the sale of such business; and
Appears in 1 contract
Asset Sales. (a) The Company shall Borrower will not, and shall will not permit any of its Restricted Subsidiaries to, consummate an Asset Sale unless unless:
(i) the Company Borrower or the applicable such Restricted Subsidiary, as the case may be, receives consideration at the time of such the Asset Sale at least equal to the fair market value (as determined, as of the time of contractually agreeing to such Asset Sale, in good faith by senior management or the Board of Directors of the Borrower, whose determination shall be conclusive, provided that in the case of any Asset Sale involving consideration in excess of $50.0 million, such determination shall be made by the Board of Directors of the Borrower) of the assets or Equity Interests issued or sold or otherwise disposed of (as determined in good faith by the Company)of; and
(ii) except for any Permitted Asset Swap, at least 75% of the consideration received in the Asset Sale by the Company Borrower or the such Restricted Subsidiary, as the case may be, from such Asset Sale shall be Subsidiary is in the form of cash or Cash Equivalents; provided that .
(b) For purposes of Section 7.03(a)(ii), the amount of:
of (ai) any liabilities (as shown on the CompanyBorrower’s or such Restricted Subsidiary’s most recent balance sheet or in the footnotes notes thereto, or if incurred or accrued subsequent to the date of such balance sheet, such liabilities that would have been shown on such balance sheet or in the Company’s or such Restricted Subsidiary’s balance or the footnotes notes thereto if such incurrence or accrual had taken place on or prior to the date of such balance sheet, as determined in good faith by the CompanyBorrower) of the Company Borrower or any such Restricted Subsidiary (other than liabilities that are by their terms subordinated in right of payment to the NotesRevolving Facility Obligations) that are assumed by the transferee of any such assets; assets (bor are otherwise extinguished in connection with the transactions relating to such Asset Sale), if such liabilities are not Indebtedness, or the Borrower or such Restricted Subsidiary has been released from all liability on payment of the principal amount of such liabilities in connection with such Asset Sale, (ii) any securities, notes or other obligations received by the Company Borrower or any such Restricted Subsidiary from such transferee that are converted by the Company Borrower or such Restricted Subsidiary into cash within 180 days of the receipt thereof or Cash Equivalents (to the extent of the cash or Cash Equivalents received); ) within 180 days following the closing of such Asset Sale and (ciii) any Designated Non-cash Cash Consideration received by the Company Borrower or any of its Restricted Subsidiaries in such Asset Sale having an aggregate fair market valuevalue (as determined in good faith by the Board of Directors of the Borrower), taken together with all other Designated Non-cash Cash Consideration received pursuant to this clause (ciii) after December 14, 2010 that is at that time outstanding, not to exceed the greater of (x) $150 100.0 million and 5(y) 9.0% of Total Consolidated Tangible Assets at the time of the receipt of such Designated Non-cash Cash Consideration (with the fair market value of each item of Designated Non-cash Cash Consideration being measured at the time received and without giving effect to subsequent changes in value), shall, in each of (a), (b) and (c) above, shall be deemed to be cash for the purposes of this provision or Section 7.03 and for purposes of the second paragraph of this Section 4.10; andno other purpose. 1003651351v23
Appears in 1 contract
Asset Sales. (a) The Company shall not, and shall not permit any of its Restricted Subsidiaries Subsidiary to, consummate cause, make or suffer to exist an Asset Sale unless Sale, unless:
(i1) the Company or the applicable 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 (as determined in good faith by notwithstanding the Company); (ii) at least 75% of foregoing, the consideration received by the Company or any of its Restricted Subsidiaries from sales, transfers and other dispositions of Investments in other joint ventures to the extent required by, or made pursuant to, customary buy/sell arrangements between the joint venture parties set forth in joint venture agreements and similar binding agreements, shall be deemed to be fair market value for purposes of this Section 1018(a)); and
(2) except in the case of a Permitted Asset Swap, at least 80% of the consideration therefor received by the Company or such Restricted Subsidiary, as the case may be, from such Asset Sale shall be is in the form of cash or Cash EquivalentsEquivalents (such 80% of consideration, the “Minimum Cash Consideration”); provided that the amount of:
(aA) any liabilities (as shown on the Company’s or such Restricted Subsidiary’s most recent balance sheet or in the footnotes notes thereto, or if incurred or accrued subsequent to the date of such balance sheet, such liabilities that would have been shown on the Company’s or such Restricted Subsidiary’s balance or the footnotes thereto if such incurrence or accrual had taken place on the date of such balance sheet, as determined by the Company) of the Company or any such Restricted Subsidiary (Subsidiary, other than liabilities that are by their terms subordinated to the Notes) , that are assumed by the transferee of any such assets; assets (bor a third party on behalf of the transferee) or are otherwise extinguished by the transferee in connection with such Asset Sale and for which the Company or such Restricted Subsidiary has been validly released by all creditors in writing;
(B) any securities, notes or other obligations or assets received by the Company or any such Restricted Subsidiary from such transferee that are converted by the Company or such Restricted Subsidiary into cash within 180 days of the receipt thereof (to the extent of the cash received)) or Cash Equivalents within 180 days following the closing of such Asset Sale; and and
(cC) any Designated Non-cash Noncash Consideration received by the Company or any of its such Restricted Subsidiaries Subsidiary in such Asset Sale having an aggregate fair market value, taken together with all other Designated Non-cash Noncash Consideration received pursuant to this clause subclause (cC) after December 14, 2010 that is at that time outstandinghas not previously been converted to cash, not to exceed the greater of (x) $150 100.0 million and 5(y) 3.5% of Consolidated Total Assets at the time of the receipt of such Designated Non-cash Consideration (Noncash Consideration, with the fair market value of each item of Designated Non-cash Noncash Consideration being measured at the time received and without giving effect to subsequent changes in value), shall, in each of (a)case, (b) and (c) above, shall be deemed to be cash or Cash Equivalents for the purposes of this provision or subclause (2) and for purposes no other purpose.
(b) Within 365 days after any of the second paragraph Company’s or any Subsidiary Guarantor’s receipt of the Net Proceeds of any Asset Sale of assets that constitute Collateral, the Company or such Subsidiary Guarantor may, at its option, apply the Net Proceeds in excess of the Minimum Cash Consideration from such Asset Sale of assets that constitute Collateral:
(1) to the extent such Net Proceeds are from an Asset Sale of Non-ABL Priority Collateral, to permanently reduce Obligations under the Term Loan Facility, other First-Priority Obligations, the Notes and/or Other Second-Priority Obligations, in each case, of the Company or any Subsidiary Guarantor and, in the case of Obligations under revolving credit facilities or other similar Indebtedness, to correspondingly permanently reduce commitments with respect thereto (other than Obligations owed to the Company or a Restricted Subsidiary); provided that if the Company or any Subsidiary Guarantor shall so reduce Obligations under any Other Second-Priority Obligations, the Company or such Subsidiary Guarantor will either (x) equally and ratably, reduce Obligations under the Notes by, at its option, (A) redeeming Notes as provided under Section 1101 or (B) purchasing Notes through open market purchases (to the extent such purchases are at a price equal to or higher than 100% of the principal amount thereof) in a manner that complies with this Indenture and applicable securities law or (y) make an offer (in accordance with the procedures set forth in this Section 1018) to all Holders to purchase their Notes at 100% of the principal amount thereof, plus the amount of accrued and unpaid interest, if any, on the principal amount of Notes to be repurchased; or
(2) to the extent such Net Proceeds are from an Asset Sale of ABL Priority Collateral, to permanently reduce Obligations under the ABL Facility, the Term Loan Facility, other First-Priority Obligations, the Notes and/or Other Second-Priority Obligations, in each case, of the Company or any Subsidiary Guarantor and, in the case of Obligations under revolving credit facilities or other similar Indebtedness, to correspondingly permanently reduce commitments with respect thereto (other than Obligations owed to the Company or a Restricted Subsidiary); provided that if the Company or any Subsidiary Guarantor shall so reduce Obligations under any Other Second-Priority Obligations, the Company or such Subsidiary Guarantor will either (x) equally and ratably, reduce Obligations under the notes by, at its option, (A) redeeming Notes as provided under Section 1011 or (B) purchasing Notes through open market purchases (to the extent such purchases are at a price equal to or higher than 100% of the principal amount thereof) in a manner that complies with this Indenture and applicable securities law or (y) make an offer (in accordance with the procedures set forth in this Section 1018) to all Holders to purchase their Notes at 100% of the principal amount thereof, plus the amount of accrued and unpaid interest, if any, on the principal amount of Notes to be repurchased; or
(3) to make an investment in (A) any one or more businesses; provided that such investment in any business is in the form of the acquisition of Capital Stock and results in the Company or any Restricted Subsidiary owning an amount of the Capital Stock of such business such that it constitutes a Restricted Subsidiary; provided further that such Capital Stock constitutes Collateral, (B) properties that constitute Collateral, (C) capital expenditures on or related to assets that constitute Collateral and (D) acquisitions of other assets that constitute Collateral, that in each of subclause (A), (B), (C) and (D) of this Section 4.10clause (2), are used or useful in a Similar Business or replace the businesses, properties and assets that are the subject of such Asset Sale; andor
(4) any combination of the foregoing. Within 35 days after the Company’s or any Subsidiary Guarantor’s receipt of the Net Proceeds of any Asset Sale of assets that constitute Collateral, the Company or such Subsidiary Guarantor shall apply the Net Proceeds up to the Minimum Cash Consideration from such Asset Sale of assets that constitute Collateral in accordance with clause (1) or (2) of the immediately preceding paragraph.
(c) Within 365 days after any of the Company’s or any Restricted Subsidiary’s receipt of the Net Proceeds of any Asset Sale of assets that do not constitute Collateral, the Company or such Restricted Subsidiary may, at its option, apply the Net Proceeds in excess of the Minimum Cash Consideration from such Asset Sale of assets that do not constitute Collateral:
(1) to permanently reduce:
Appears in 1 contract
Samples: Indenture (Aleris Corp)
Asset Sales. (a) The Company Issuer shall not, and shall not cause or permit any of its Restricted Subsidiaries to, directly or indirectly, consummate an any Asset Sale unless unless:
(i) the Company Issuer or the applicable such Restricted Subsidiary, as the case may be, Subsidiary receives consideration at the time of such Asset Sale at least equal to the fair market value Fair Market Value of the assets sold or otherwise disposed of (as determined included in good faith by the Company)such Asset Sale; and
(ii) at least 75% of the total consideration received in such Asset Sale consists of cash, Temporary Cash Investments or assets referred to in clause (c) below, in each case, valued at the Fair Market Value thereof, or a combination of the foregoing. For purposes of Section 4.10(a)(ii), the following shall be deemed to be cash:
(A) the amount (without duplication) of any liability (other than Subordinated Obligations) that would be recorded on a balance sheet prepared in accordance with GAAP of the Issuer or such Restricted Subsidiary that is expressly (I) assumed by a Person other than the Issuer or a Restricted Subsidiary, or (II) expunged by the Company holder of such liability, and with respect to which, in each case, the Issuer or the such Restricted Subsidiary, as the case may be, is unconditionally released from further liability with respect thereto;
(B) the amount of any obligations or securities received from such Asset Sale shall be in the form of cash or 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, or if incurred or accrued subsequent to the date of such balance sheet, such liabilities that would have been shown on the Company’s or such Restricted Subsidiary’s balance or the footnotes thereto if such incurrence or accrual had taken place on the date of such balance sheet, as determined by the Company) of the Company or any such Restricted Subsidiary (other than liabilities Transferee that are by their terms subordinated to the Notes) that are assumed by the transferee of any such assets; (b) any securities, notes or other obligations received by the Company or any such Restricted Subsidiary from such transferee that are converted by the Company or such Restricted Subsidiary into cash within 180 days repaid, converted into or sold or otherwise disposed of the receipt thereof for cash or Temporary Cash Investments (to the extent of the cash or Temporary Cash Investments actually so received); and ;
(cC) any Designated Noncontingent earn-cash Consideration out obligation received by the Company Issuer or any of its Restricted Subsidiaries Subsidiary in such Asset Sale having an aggregate fair market valuepotential payout, taken together with all other contingent earn-out obligations received pursuant to this clause since the Issue Date that are at the time outstanding and held by the Issuer or any Restricted Subsidiary, not to exceed $20.0 million; and
(D) any Designated Noncash Consideration received by the Issuer or any Restricted Subsidiary in such Asset Sale having an aggregate Fair Market Value, taken together with all other Designated Non-cash Noncash Consideration received pursuant to this clause (c) after December 14, 2010 since the Issue Date that is at that the time outstandingoutstanding and held by the Issuer or any Restricted Subsidiary, not to exceed the greater of (x) $150 25.0 million and 5or (y) 5.5% of Total Consolidated Net Tangible Assets at the time of the receipt of such Designated Non-cash Consideration (Noncash Consideration, with the fair market value Fair Market Value of each item of Designated Non-cash Noncash Consideration being measured at the time received and without giving effect to subsequent changes in value. If at any time any non-cash consideration received by the Issuer or any Restricted Subsidiary in connection with any Asset Sale is repaid, converted into or sold or otherwise disposed of for cash or Temporary Cash Investments (other than interest received with respect to any such non-cash consideration), then the date of such repayment, conversion, sale or other 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.
(b) If the Issuer or any Restricted Subsidiary engages in an Asset Sale, the Issuer or a Restricted Subsidiary shall, no later than 365 days following the consummation thereof, apply an amount equal to all or any of the Net Available Proceeds therefrom as follows:
(i) to repay or otherwise retire amounts owing under the Credit Facilities in accordance with the Credit Facilities;
(ii) to repay or otherwise retire amounts owing under other Indebtedness (other than Subordinated Obligations) that is secured by a Lien, which Lien is permitted by this Indenture, and, in the case the Indebtedness repaid or retired is revolving credit Indebtedness, to correspondingly reduce commitments with respect thereto; and/or
(iii) to make (1) an Investment in or expenditure for assets (including Capital Stock of any Person) that replace the assets that were the subject of the Asset Sale or in assets (including Capital Stock of any Person) that will be used in the Permitted Business and (2) capital expenditures that will be used in the Permitted Business (or, in each case of (a1) and (2), enter into a binding commitment for any such investment or expenditure); provided that such binding commitment shall be treated as a permitted application of the Net Available Proceeds from the date of such commitment until and only until the earlier of (x) the date on which such investment or expenditure is consummated and (y) the 180th day following the expiration of the aforementioned 365-day period. If the Investment or expenditure contemplated by such binding commitment is not consummated on or before the 180th day, such commitment shall be deemed not to have been a permitted application of Net Available Proceeds. In addition to the foregoing, any Investment, expenditure or capital expenditure of the type described in Sections 4.10(b)(i), (bii) and (c) aboveiii), in each case made within 180 days prior to an Asset Sale, shall be deemed to satisfy this Section 4.10(b) with respect to the application of the Net Available Proceeds from such Asset Sale. The amount of Net Available Proceeds not applied or invested as provided in this clause (b) will constitute “Excess Proceeds.”
(c) When the aggregate amount of Excess Proceeds equals or exceeds $20.0 million, the Issuer will be cash required to (and at any time the Issuer may) make an offer to purchase from all Holders an aggregate principal amount of Notes and, if the Issuer is required to do so under the terms of any other Indebtedness ranking pari passu with such Notes, such other Indebtedness on a pro rata basis with the Notes, equal to the amount of such Excess Proceeds (a “Net Proceeds Offer”) in accordance with the procedures set forth in Section 3.09. The offer price for the Notes will be payable in cash and will be 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 Net Proceeds Offer is consummated (the “Offered Price”). If the aggregate Offered Price of Notes validly tendered and not withdrawn by Holders thereof exceeds the amount of Excess Proceeds, subject to Applicable Procedures, Notes to be purchased will be selected on a pro rata basis. Upon completion of such Net Proceeds Offer in accordance with the foregoing provisions, the amount of Excess Proceeds shall be reduced to zero. To the extent that the aggregate Offered Price of Notes tendered pursuant to a Net Proceeds Offer (and if applicable, the aggregate amount of pari passu Indebtedness being repaid, on a pro rata basis with the Notes) is less than the Excess Proceeds (such shortfall constituting a “Net Proceeds Deficiency”), the Issuer may use the Net Proceeds Deficiency, or a portion thereof, for any purpose not prohibited by this Indenture.
(d) In the event of the Transfer of substantially all (but not all) of the assets of the Issuer and the Restricted Subsidiaries as an entirety to a Person in a transaction covered by and effected in accordance with Section 5.01, the Transferee shall be deemed to have sold for cash at Fair Market Value the assets of the Issuer and the Restricted Subsidiaries not so Transferred for purposes of this provision or for purposes of covenant, and shall comply with the second paragraph provisions of this Section 4.10; and4.10 with respect to such deemed sale as if it were an Asset Sale (with such Fair Market Value being deemed to be Net Available Proceeds for such purpose).
(e) Pending the final application of any Net Available Proceeds, the Issuer may temporarily reduce revolving credit borrowings or otherwise invest the Net Available Proceeds in any manner that is not prohibited by this Indenture.
(f) The Issuer shall comply, to the extent applicable, with the requirements of Section 14(e) of the Exchange Act and any other securities laws or regulations in connection with any purchase of Notes pursuant to this Indenture. To the extent that the provisions of any securities laws or regulations conflict with the provisions of this Indenture, the Issuer shall comply with the applicable securities laws and regulations and will not be deemed to have breached its obligations under this Indenture by virtue of this compliance.
Appears in 1 contract
Asset Sales. (a) The Company shall Issuer will not, and shall will not permit any of its Restricted Subsidiaries to, consummate cause or make an Asset Sale Sale, unless (i1) the Company Issuer or the applicable any of its Restricted SubsidiarySubsidiaries, as the case may be, receives consideration at the time of such Asset Sale at least equal to the fair market value of the assets sold or otherwise disposed of Fair Market Value (as determined in good faith by the Company); Issuer) of the assets or Equity Interests issued or sold or otherwise disposed of and (ii2) except in the case of Permitted Asset Swaps, at least 75% of the consideration therefor received by the Company Issuer or the such Restricted Subsidiary, as the case may be, from such Asset Sale shall be is in the form of cash or Cash Equivalents; provided that the amount of:
(ai) any liabilities (as shown on the CompanyIssuer’s or such Restricted Subsidiary’s most recent balance sheet or in the footnotes notes thereto, or if incurred or accrued subsequent to the date of such balance sheet, such liabilities that would have been shown on the Company’s or such Restricted Subsidiary’s balance or the footnotes thereto if such incurrence or accrual had taken place on the date of such balance sheet, as determined by the Company) of the Company Issuer or any such Restricted Subsidiary (other than liabilities that are by their terms subordinated to the NotesNotes or any Note Guarantee) that are assumed by the transferee of any such assets; assets pursuant to a customary novation or indemnity agreement that release the Issuer or such Restricted Subsidiary from or indemnifies against further liability,
(bii) any securities, notes or other obligations or other securities or assets received by the Company Issuer or any such Restricted Subsidiary of the Issuer from such transferee that are converted by the Company Issuer or such Restricted Subsidiary into cash within 180 days of the receipt thereof (to the extent of the cash received); and , and
(ciii) any Designated Non-cash Consideration received by the Company Issuer or any of its such Restricted Subsidiaries Subsidiary in such Asset Sale having an aggregate fair market valueFair Market Value, taken together with all other Designated Non-cash Consideration received pursuant to this clause (c) after December 14, 2010 that is at that the time outstanding, not to exceed the greater of (i) $150 100.0 million and 5or (ii) 4.00% of Total Assets at the time of the receipt of such Designated Non-cash Consideration (with the fair market value 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 of (a), (b) and (c) above, shall be deemed to be cash Cash Equivalents for the purposes of this provision or for purposes Section 4.06(a).
(b) Within 365 days after the receipt of the second paragraph Net Proceeds of an Asset Sale, the Issuer or a Restricted Subsidiary of the Issuer may apply the Net Proceeds from such Asset Sale:
(i) to repay, repurchase or redeem Indebtedness and other Obligations under a Credit Facility that are secured by a Lien and, if the Indebtedness repaid is revolving credit Indebtedness, to correspondingly reduce commitments with respect thereto;
(ii) to repay, repurchase or redeem Indebtedness and other Obligations of a Restricted Subsidiary that is not a Guarantor, other than Indebtedness owed to the Issuer or another Restricted Subsidiary;
(iii) to repay, repurchase or redeem other Indebtedness of the Issuer or any Guarantor (other than any Disqualified Stock or any Indebtedness that is contractually subordinated in right of payment to the Notes), other than Indebtedness owed to the Issuer or a Restricted Subsidiary; provided that the Issuer shall equally and ratably redeem or repurchase the Notes as described in Article Three through open market purchases (to the extent such purchases are at or above 100% of the principal amount thereof) or by making an offer (in accordance with the procedures set forth below for an Asset Sale Offer) to all Holders to purchase the Notes at 100% of the principal amount thereof, plus the amount of accrued but unpaid interest, if any, on the amount of Notes that would otherwise be prepaid;
(iv) to make an investment in any one or more businesses (provided that if such investment is in the form of the acquisition of Capital Stock of a Person, such acquisition results in such Person becoming a Restricted Subsidiary of the Issuer), assets, or property or capital expenditures, in each case used or useful in a Similar Business;
(v) to make an investment in any one or more businesses (provided that if such investment is in the form of the acquisition of Capital Stock of a Person, such acquisition results in such Person becoming a Restricted Subsidiary of the Issuer), properties or assets that replace the businesses, properties and/or assets that are the subject of such Asset Sale; or
(vi) any combination of the foregoing;
(vii) provided that the Issuer will be deemed to have complied with the provisions described in clauses (iv) and (v) above of this Section 4.104.06(b), as applicable, if, within 365 days of such Asset Sale, the Issuer or a Restricted Subsidiary, as applicable, shall have entered into a definitive agreement covering such Investment which is thereafter completed within 180 days after the first anniversary of such Asset Sale.
(c) Any Net Proceeds from Asset Sales that are not applied or invested as described in Section 4.06(b) will constitute “Excess Proceeds.” Within 10 days after the aggregate amount of Excess Proceeds exceeds $75.0 million, the Issuer 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 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 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. The offer price in any Asset Sale Offer will be equal to 100% of the principal amount of the Notes and such other pari passu Indebtedness, plus accrued and unpaid interest, if any, on the Notes and such other pari passu Indebtedness 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 Issuer 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 in (or required to be prepaid or redeemed in connection with) such Asset Sale Offer exceeds the amount of Excess Proceeds, the Trustee will select the Notes and the Issuer shall select 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 Issuer so that only Notes in denominations of $2,000, or an integral multiple of $1,000 in excess thereof, will be purchased), subject to applicable DTC procedures with respect to Global Notes. Upon completion of each Asset Sale Offer, the amount of Excess Proceeds shall be reset at zero. Pending final application of such Net Proceeds, the Issuer or any Restricted Subsidiary may temporarily reduce borrowings under the Credit Facilities or any other revolving credit facility, if any, or otherwise invest such Net Proceeds in any manner not prohibited by this Indenture.
(d) Not later than the date upon which written notice of an Asset Sale Offer is delivered to the Trustee as provided above, the Issuer shall deliver to the Trustee an Officer’s Certificate as to (i) the amount of the Excess Proceeds, (ii) the allocation of the Net Proceeds from the Asset Sales pursuant to which such Asset Sale Offer is being made and (iii) the compliance of such allocation with the provisions of Section 4.06(b). On such date, the Issuer shall also irrevocably deposit with the Trustee or with a paying agent (or, if the Issuer or a Wholly Owned Restricted Subsidiary of the Issuer is acting as the Paying Agent, segregate and hold in trust) an amount equal to the Excess Proceeds to be invested in Cash Equivalents, as directed in writing by the Issuer, and to be held for payment in accordance with the provisions of this Section 4.06. Upon the expiration of the period for which the Asset Sale Offer remains open (the “Asset Sale Offer Period”), the Issuer shall deliver to the Trustee for cancellation the Notes or portions thereof that have been properly tendered to and are to be accepted by the Issuer. The Trustee (or the Paying Agent, if not the Trustee) shall, on the date of purchase, mail or deliver payment to each tendering Holder in the amount of the purchase price. In the event that the Excess Proceeds delivered by the Issuer to the Trustee are greater than the purchase price of the Notes tendered, the Trustee shall deliver the excess to the Issuer immediately after the expiration of the Asset Sale Offer Period for application in accordance with Section 4.06.
(e) Holders electing to have a Note purchased shall be required to surrender the Note, with an appropriate form duly completed, to the Issuer at the address specified in the notice at least three (3) Business Days prior to the purchase date. Holders shall be entitled to withdraw their election if the Trustee or the Issuer receives not later than one Business Day prior to the Purchase Date, a telegram, telex, facsimile transmission or letter setting forth the name of the Holder, the principal amount of the Note which was delivered by the Holder for purchase and a statement that such Holder is withdrawing his election to have such Notes purchased. If at the end of the Asset Sale Offer Period more Notes and such other pari passu Indebtedness are tendered pursuant to an Asset Sale Offer than the Issuer is required to purchase, selection of such Notes for purchase shall be made by the Trustee in compliance with the requirements of the principal national securities exchange, if any, on which such Notes are listed, or if such Notes are not so listed, on a pro rata basis, by lot or by such other method as the Trustee shall deem fair and appropriate (and in such manner as complies with applicable legal requirements and the requirements of the Depositary, if applicable); andprovided that no Notes of $2,000 or less shall be purchased in part. Selection of such other pari passu Indebtedness shall be made pursuant to the terms of such other pari passu Indebtedness.
(f) Notices of an Asset Sale Offer shall be sent to the Depositary in accordance with Applicable Procedures or mailed by first class mail, postage prepaid, or sent electronically pursuant to applicable DTC procedures with respect to the global Notes at least 30 but not more than 60 days before the purchase date to each Holder of Notes (with a copy to the Trustee) at such Holder’s registered address. If any Note is to be purchased in part only, any notice of purchase that relates to such Note shall state the portion of the principal amount thereof that has been or is to be purchased.
(g) A new Note in principal amount equal to the unpurchased portion of any Note purchased in part shall be issued in the name of the Holder (or transferred by book entry) upon cancellation of the original Note. On and after the purchase date, unless the Issuer defaults in payment of the purchase price, interest shall cease to accrue on Notes or portions thereof purchased.
Appears in 1 contract
Samples: Indenture (ACCO BRANDS Corp)
Asset Sales. The Company shall not, and shall not permit any of its Restricted Subsidiaries to, consummate Consummate an Asset Sale unless Sale, unless
(ia) the Company Borrower or the applicable Restricted such Subsidiary, as the case may be, receives consideration at the time of such Asset Sale at least equal to the fair market value Fair Market Value (as determined at the time of contractually agreeing to such Asset Sale) of the assets sold or otherwise disposed of of; and
(as determined in good faith by the Company); (iib) at least 75% of the consideration therefor received by the Company Borrower or the Restricted such Subsidiary, as the case may be, from such Asset Sale shall be is in the form of cash or Cash Equivalents; provided that the amount of:
(ai) any liabilities Debt (as shown reflected on the Company’s or such Restricted SubsidiaryBorrower’s most recent balance sheet or in the footnotes thereto, or if incurred or accrued subsequent to the date of such consolidated balance sheet, such liabilities that would have been shown on the Company’s or such Restricted Subsidiary’s balance or the footnotes thereto if such incurrence or accrual had taken place on the date of such balance sheet, as determined by the Company) of the Company Borrower or any such Restricted Subsidiary (Subsidiary, other than liabilities that are Debt which is by their its terms subordinated to the Notes) Security, that are is assumed by the transferee of any such assets; assets (bor are otherwise extinguished in connection with the transactions relating to such Asset Sale) and for which the Borrower and such Subsidiary have been validly released by all applicable creditors in writing;
(ii) any securities, notes or other obligations or assets received by the Company Borrower or any such Restricted Subsidiary from such transferee that are converted by the Company Borrower or such Restricted Subsidiary into cash within 180 days of the receipt thereof or Cash Equivalents, or by their terms are required to be satisfied for cash or Cash Equivalents (to the extent of the cash or Cash Equivalents received); and , in each case, within 180 days following the closing of such Asset Sale;
(ciii) any Designated Non-cash Consideration received by the Company Borrower or any of its Restricted Subsidiaries Subsidiary in connection with such Asset Sale having an Sale; provided that the aggregate fair market valueFair Market Value of such Designated Non-cash Consideration, taken together with the Fair Market Value at the time of receipt of all other Designated Non-cash Consideration previously received by Borrower or such Subsidiary pursuant to this clause paragraph (ciii) after December 14less the amount of Net Cash Proceeds previously realized in cash and Cash Equivalents from the disposition of prior Designated Non-cash Consideration, 2010 that is at that time outstanding, does not to exceed the greater of (x) $150 100 million and 5(y) 18.8% of Total Assets Adjusted EBITDA for the most recently ended Test Period calculated on a Pro Forma Basis at the such time of the receipt of such Designated Non-cash Consideration (with the fair market value 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), shallwill, in each of (a), (b) and (c) abovecase, be deemed to be cash or Cash Equivalents for this purpose. Notwithstanding anything to the purposes contrary herein, (x) the Borrower shall not nor shall it permit any Subsidary to consummate an Asset Sale or Permitted Disposition to an Unrestricted Subsidiary of this provision any satellite or for purposes Intellectual Property that is material to the business of the second paragraph Borrower and its Subsidiaries, taken as a whole, and (y) the Borrower shall not nor shall it permit any Guaranor to consummate an Asset Sale or Permitted Disposition to a Subsidiary (other than a Guarantor) of this Section 4.10; andany satellite that is material to the business of the Borrower and its Subsidiaries, taken as a whole.
Appears in 1 contract
Asset Sales. (a) The Company Issuer shall not, and shall not permit any of its Restricted Subsidiaries to, consummate cause or make an Asset Sale Sale, unless (ix) the Company Issuer or the applicable any of its Restricted SubsidiarySubsidiaries, as the case may be, receives consideration at the time of such Asset Sale at least equal to the fair market value of the assets sold or otherwise disposed of Fair Market Value (as determined in good faith by the Company); Issuer) of the assets sold or otherwise disposed of, and (iiy) at least 75% of the consideration therefor received by the Company Issuer or the such Restricted Subsidiary, as the case may be, from such Asset Sale shall be is in the form of cash or Cash Equivalents; provided that the amount of:
(ai) any liabilities (as shown on the CompanyIssuer’s or such Restricted Subsidiary’s most recent balance sheet or in the footnotes notes thereto, or if incurred or accrued subsequent to the date of such balance sheet, such liabilities that would have been shown on the Company’s or such Restricted Subsidiary’s balance or the footnotes thereto if such incurrence or accrual had taken place on the date of such balance sheet, as determined by the Company) of the Company Issuer or any such Restricted Subsidiary of the Issuer (other than liabilities (1) that are by their terms subordinated in right of payment to the NotesSecurities or any Guarantee, (2) that are unsecured, (3) that are secured by a Lien on any Notes Collateral ranking junior to the Liens on such Notes Collateral securing the Securities or any Guarantee or (4) that are owed to the Issuer, a Subsidiary or any Affiliate of the foregoing) that are assumed by the transferee of any such assets; assets or that are otherwise cancelled or terminated in connection with the transaction with such transferee;
(bii) any securities, notes or other obligations or other securities or assets received by the Company Issuer or any such Restricted Subsidiary of the Issuer from such transferee that are converted by the Company Issuer or such Restricted Subsidiary of the Issuer into cash within 180 days of the receipt thereof (to the extent of the cash received); and and
(ciii) any Designated Non-cash Consideration received by the Company Issuer or any of its Restricted Subsidiaries in such Asset Sale having an aggregate fair market valueFair Market Value (as determined in good faith by the Issuer), taken together with all other Designated Non-cash Consideration received pursuant to this clause (ciii) after December 14, 2010 that is at that time outstanding, not to exceed the greater of $150 million and 5% of Total Assets at the time of the receipt of such Designated Non-cash Consideration 1,000,000 (with the fair market value 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 of (a), (b) and (c) above, shall be deemed to be cash Cash Equivalents for the purposes of this provision Section 4.06(a).
(b) Within 365 days after the Issuer’s or for purposes any Restricted Subsidiary of the Issuer’s receipt of (x) the Net Proceeds of any Asset Sale or (y) aggregate cash proceeds in respect of any Co-Promotion Arrangement to the extent such proceeds constitute fixed cash payments not based on the occurrence (or non-occurrence) of any event (other than solely the passage of time) payable under such Co-Promotion Arrangement, the Issuer or such Restricted Subsidiary of the Issuer may apply the Net Proceeds from such Asset Sale or such aggregate cash proceeds, at its option:
(i) (A) if the subject assets constitute ABL Collateral that secures First Priority Lien Obligations to permanently repay Indebtedness constituting First Priority Lien Obligations, including Secured Bank Indebtedness (and, if the Indebtedness repaid is revolving credit Indebtedness, permanently reduce commitments thereunder by the amount of such repayment), or (B) if the subject assets are held by a Restricted Subsidiary that is not a Guarantor, to repay Indebtedness of such Restricted Subsidiary or (C) in all other cases, to permanently repay Senior Indebtedness or Pari Passu Indebtedness (and, if the Indebtedness repaid is revolving credit Indebtedness, permanently reduce commitments thereunder by the amount of such repayment) (provided that if the Issuer or any Guarantor shall so reduce Obligations under Pari Passu Indebtedness, the Issuer shall equally and ratably reduce Obligations under the Securities as provided under the optional redemption provisions of Paragraph 5 of the Security or through open-market purchases (provided that such purchases are at or above 100% of the principal amount thereof), the pro rata principal amount of Securities, in each case, other than Indebtedness owed to the Issuer or an Affiliate of the Issuer); or
(ii) except with respect to the Net Proceeds of an Intellectual Property Sale (which Net Proceeds, for the avoidance of doubt, will be applied pursuant to the second succeeding paragraph without regard to such 365-day period), to make an Investment in any one or more businesses (provided that if such Investment is in the form of the acquisition of Capital Stock of a Person, such acquisition results in such Person becoming a Restricted Subsidiary of the Issuer or, if such Person is a Restricted Subsidiary of the Issuer, in an increase in the percentage ownership of such Person by the Issuer or any Restricted Subsidiary of the Issuer), non-current assets, or non-current property or capital expenditures, in each case (A) used or useful in a Similar Business or (B) that replace the properties and assets that are the subject of such Asset Sale; provided that any such Investment, assets, property or capital expenditures, to the extent acquired with Net Proceeds of an Asset Sale of Notes Collateral, shall be pledged as Notes Collateral (including any assets held by a Person acquired using Net Proceeds, which shall not be ABL Collateral even if such assets or property are of a type that would otherwise be ABL Collateral). In the case of Section 4.06(b)(ii), a binding commitment shall be treated as a permitted application of the Net Proceeds from the date of such commitment so long as the Net Proceeds are so applied within 450 days after the receipt of such Net Proceeds. Pending the final application of any such Net Proceeds, the Issuer or such Restricted Subsidiary of the Issuer may temporarily reduce Indebtedness under a revolving credit facility, if any, or otherwise invest such Net Proceeds in any manner not prohibited by this Indenture; provided, that the Net Proceeds of an Asset Sale of Notes Collateral shall be held in an account that is pledged as Notes Collateral.
(I) Net Proceeds from any Asset Sale of Notes Collateral that are not applied as provided and within the time period set forth in the first paragraph of this Section 4.104.06(b) (including the Net Proceeds of an Intellectual Property Sale) (it being understood that any portion of such Net Proceeds used to make an offer to purchase Securities, as described in clause (i) of this Section 4.06(b), shall be deemed to have been invested whether or not such offer is accepted) and (II) aggregate cash proceeds in respect of any Intellectual Property Licenses to the extent such proceeds constitute fixed cash payments not based on the occurrence (or non-occurrence) of any event (other than solely the passage of time) payable under such Intellectual Property Licenses and (III) aggregate cash proceeds in respect of any Co-Promotion Arrangement to the extent such proceeds constitute fixed cash payments not based on the occurrence (or non-occurrence) of any event (other than solely the passage of time) payable under such Co-Promotion Arrangement, to the extent (in the case of the aggregate of clauses (I), (II) and (III) above) exceeding $10,000,000, but in any event not including the proceeds of any sale of any Intellectual Property to any Specified IP Subsidiary, shall be deemed to constitute “Notes Collateral Excess Proceeds”. Upon receipt by the Issuer or any Guarantor of any Notes Collateral Excess Proceeds, the Issuer shall make an offer to all Holders of Securities (and, at the option of the Issuer, to holders of any Pari Passu Indebtedness) (a “Notes Collateral Asset Sale Offer”) to purchase the maximum principal amount of Securities (and such Pari Passu Indebtedness) that is at least $1,000 and an integral multiple of $1,000 that may be purchased out of the Notes Collateral Excess Proceeds at an offer price in cash in an amount equal to 100% of the principal balance thereof (or, in the event such Pari Passu Indebtedness was issued with significant original issue discount, 100% of the accreted value thereof), plus accrued and unpaid interest (or, in respect of such Pari Passu Indebtedness, such lesser price, if any, as may be provided for by the terms of such Pari Passu Indebtedness), to the date fixed for the closing of such purchase, in accordance with the procedures set forth in this Section 4.06. The Issuer shall commence a Notes Collateral Asset Sale Offer with respect to Notes Collateral Excess Proceeds within ten Business Days after the receipt of any Notes Collateral Excess Proceeds by providing the written notice required pursuant to Section 4.06(f), with a copy to the Trustee. To the extent that the aggregate amount of Securities (and such Pari Passu Indebtedness) tendered pursuant to a Notes Collateral Asset Sale Offer is less than the Notes Collateral Excess Proceeds, the Issuer may use any remaining Notes Collateral Excess Proceeds for any purpose that is not prohibited by this Indenture (including the uses permitted by Section 4.06(b)(ii)). If the aggregate principal amount of Securities (and such Pari Passu Indebtedness) surrendered by Holders thereof exceeds the amount of Notes Collateral Excess Proceeds, the Trustee shall select the Securities to be purchased in the manner described in Section 4.06(e). Upon completion of any such Notes Collateral Asset Sale Offer, regardless of whether such Notes Collateral Asset Sale Offer is accepted in whole, in part or not at all, the aggregate amount of proceeds described in clauses (i) and (ii) above that were included in the calculation of the amount of Notes Collateral Excess Proceeds that resulted in such Notes Collateral Asset Sale Offer hereunder shall be automatically reset to zero.
(c) The Issuer shall comply with the requirements of Rule 14e-1 under the Exchange Act and any other securities laws and regulations to the extent such laws or regulations are applicable in connection with the repurchase of the Securities pursuant to a Notes Collateral Asset Sale Offer. To the extent that the provisions of any securities laws or regulations conflict with the provisions of this Indenture, the Issuer shall comply with the applicable securities laws and regulations and shall not be deemed to have breached its obligations described in this Indenture by virtue thereof.
(d) Not later than the date upon which written notice of a Notes Collateral Asset Sale Offer is delivered to the Trustee as provided above, the Issuer shall deliver to the Trustee an Officers’ Certificate as to (i) the amount of the Notes Collateral Excess Proceeds, (ii) the application of the Net Proceeds from the Asset Sales pursuant to which such Notes Collateral Asset Sale Offer is being made and (iii) the compliance of such application with the provisions of Section 4.06(b). On the specified date of purchase, the Issuer shall also deposit with the Trustee or with the Paying Agent (or, if the Issuer or a domestically organized Wholly Owned Restricted Subsidiary is acting as the Paying Agent, segregate and hold in trust) an amount equal to the Notes Collateral Excess Proceeds to be invested in Cash Equivalents, as directed in writing by the Issuer, 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 Notes Collateral Asset Sale Offer remains open (the “Offer Period”), the Issuer shall deliver to the Trustee for cancellation the Securities or portions thereof that have been properly tendered to and are to be accepted by the Issuer, along with a written payment and cancellation order. 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 as determined by the Issuer and stated in the written payment and cancellation order. In the event that the Notes Collateral Excess Proceeds delivered by the Issuer to the Trustee are greater than the purchase price of the Securities tendered, the Trustee shall deliver the excess to the Issuer immediately after the expiration of the Offer Period.
(e) Holders electing to have a Security purchased shall be required to surrender the Security, with an appropriate form duly completed, to the Issuer at the address specified in the notice at least five Business Days prior to the purchase date. Holders shall be entitled to withdraw their election if the Issuer receives not later than two Business Days prior to the purchase date a telegram, telex, facsimile transmission or letter setting forth the name of the Holder, the principal amount of the Security that was delivered by the Holder for purchase and a statement that such Holder is withdrawing such Holder’s election to have such Security purchased. If at the end of the Offer Period more Securities (and such Pari Passu Indebtedness, as applicable) are tendered pursuant to a Notes Collateral Asset Sale Offer than the Issuer is required to purchase, and if the Securities are Global Securities held by the Depository, the Depository will select the Securities to be redeemed in accordance with its operational arrangements. If the Securities are not Global Securities held by the Depository, selection of such Securities for purchase shall be made by the Trustee 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); andprovided that no Securities of $1,000 or less shall be purchased in part. Selection of such Pari Passu Indebtedness, as applicable, shall be made by the representative for such Pari Passu Indebtedness pursuant to the terms of such Pari Passu Indebtedness; provided that any purchase by the Issuer of Pari Passu Indebtedness and Securities tendered pursuant to a Notes Collateral Asset Sale Offer shall otherwise be made on a pro rata basis, as nearly as practicable.
(f) Written notices of a Notes Collateral Asset Sale Offer shall be provided by the Issuer at least 10 but not more than 60 days before the purchase date to each Holder of Securities at such Holder’s registered address with a copy to the Trustee (or electronically pursuant to DTC’s applicable procedures). If any Security is to be purchased in part only, any notice of purchase that relates to such Security shall state the portion of the principal amount thereof that has been or is to be purchased. Holders whose Securities are purchased only in part shall be issued new Securities equal in principal amount to the unpurchased portion of the Securities surrendered. If the Securities are Global Securities held by the Depository, then the applicable operational procedures of the Depository for tendering and withdrawing securities will apply.
Appears in 1 contract
Samples: Indenture (Egalet Corp)
Asset Sales. (a) The Company shall will not, and shall will not permit any of its Restricted Subsidiaries to, consummate cause or make an Asset Sale unless Sale, unless:
(i) the Company or the applicable Restricted Subsidiaryany of its Subsidiaries, as the case may be, receives consideration at the time of such Asset Sale at least equal to the fair market value Fair Market Value (as determined at the time of contractually agreeing to such Asset Sale) of the assets sold or otherwise disposed of (as determined in good faith by the Company)of; and
(ii) except in the case of a Permitted Asset Swap, at least 75% of the consideration therefor received by the Company or the Restricted Subsidiarysuch Subsidiaries, as the case may be, from such Asset Sale shall be is in the form of cash or Cash Equivalents; provided that the amount of:
(a1) any liabilities (as shown on the Company’s or such Restricted Subsidiary’s most recent balance sheet or in the footnotes notes thereto, or if incurred or accrued subsequent to the date of such balance sheet, such liabilities that would have been shown on the Company’s or such Restricted Subsidiary’s balance or the footnotes thereto if such incurrence or accrual had taken place on the date of such balance sheet, as determined by the Company) of the Company or any such Restricted Subsidiary (other than liabilities that are by their terms subordinated to the NotesSubordinated Indebtedness) that are assumed by the transferee of any such assets; assets or Equity Interests pursuant to an agreement that releases or indemnifies the Company or such Subsidiary, as the case may be, from further liability (bor are otherwise extinguished in connection with the transactions relating to such Asset Sale);
(2) any securities, notes or other obligations or assets received by the Company or any such Restricted Subsidiary from such transferee that are converted or reasonably expected to be converted by the Company acting in good faith by the Company or such Restricted Subsidiary into cash within 180 days of the receipt thereof or Cash Equivalents (to the extent of the cash or Cash Equivalents received or expected to be received), or by their terms are required to be satisfied for cash or Cash Equivalents (to the extent of the cash or Cash Equivalents received) within one hundred and eighty (180) days of the receipt thereof; and and
(c3) any Designated Non-cash Consideration received by the Company or any of its Restricted Subsidiaries in such Asset Sale having an aggregate fair market valueFair Market Value, taken together with all other Designated Non-cash Consideration received pursuant to this clause (cSection 4.07(a)(ii)(3) after December 14, 2010 that is at that time outstanding, not to exceed the greater of (x) $150 million 80,000,000 and 5(y) 2.00% of Consolidated Total Assets Assets, calculated at the time of the receipt of such Designated Non-cash Consideration (with the fair market value 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 of (a), (b) and (c) above, will be deemed to be cash Cash Equivalents for the purposes of this provision Section 4.07(a)(ii).
(b) Within three hundred and sixty-five (365) days after the later of (x) the date of any Asset Sale and (y) the receipt of any Net Cash Proceeds of such Asset Sale, the Company or such Subsidiary, at its option, may apply the Net Cash Proceeds from such Asset Sale:
(i) to reduce Indebtedness (through a prepayment, repayment or purchase, as applicable) as follows:
(1) Obligations under the New Second Lien Secured Notes, including by redemption or by purchasing the New Second Lien Secured Notes through a tender offer, open-market purchases or in privately negotiated transactions;
(2) ABL/FILO Obligations and Obligations under any other Credit Facility to the extent such Obligations were incurred under Section 4.04(b)(i); provided that for Indebtedness consisting of a revolving credit facility for working capital or general corporate purposes there shall be no requirement to correspondingly reduce commitments with respect thereto; or
(3) to the extent such Net Cash Proceeds resulted from an Asset Sale of assets not constituting Collateral, Obligations of a Subsidiary that is not a Subsidiary Guarantor, other than Indebtedness owed to the Company or any Subsidiary Guarantor; or
(ii) to make:
(1) an Investment in any one or more businesses so long as such Investment in any business is in the form of the second paragraph acquisition of Capital Stock and results in the Company or any of its Subsidiaries, as the case may be, owning an amount of the Capital Stock of such business such that it constitutes or continues to constitute a Subsidiary,
(2) capital expenditures; or
(3) acquisitions of, or investments in, other properties or assets; provided that such application of Net Cash Proceeds pursuant to each of Section 4.07(b)(ii)(1), Section 4.07(b)(ii)(2) and Section 4.07(b)(ii)(3) is used or useful in the business of the Company or a Similar Business or replace the businesses, properties and/ or assets that are the subject of such Asset Sale; provided further that the Company may elect to deem expenditures that otherwise would be permissible Investments, capital expenditures or acquisitions of other property or assets within the scope of Section 4.07(b)(ii)(1), Section 4.07(b)(ii)(2) and Section 4.07(b)(ii)(3), as applicable, that occur prior to the receipt of the Net Cash Proceeds from such Asset Sale to have been invested in accordance with this Section 4.07(b)(ii) (it being agreed that such deemed expenditure shall have been made no earlier than the earliest of (x) notice of such Asset Sale, (y) execution of a definitive agreement for such Asset Sale and (z) consummation of such Asset Sale); or
(iii) any combination of Section 4.07(b)(i) and Section 4.07(b)(ii); provided that a binding commitment or letter of intent entered into not later than such 365th day shall be treated as a permitted application of such Net Cash Proceeds from the date of such commitment or letter of intent so long as the Company or such Subsidiary enters into such commitment or letter of intent with the good faith expectation that the Net Cash Proceeds will be applied to satisfy such commitment or letter of intent within the later of such three hundred and sixty-fifth (365th) day and one hundred and eighty (180) days of such commitment or letter of intent (an “Acceptable Commitment”) or, in the event any Acceptable Commitment is later cancelled or terminated for any reason before the Net Cash Proceeds are applied in connection therewith, the Company or such Subsidiary enters into another Acceptable Commitment (a “Second Commitment”) within one hundred and eighty (180) days of such cancellation or termination; provided further that if any Second Commitment is later cancelled or terminated for any reason before such Net Cash Proceeds are applied, then such Net Cash Proceeds shall constitute Excess Proceeds.
(c) Any amount of Net Cash Proceeds from any Asset Sale that are not utilized or applied as provided within the time period set forth in this Section 4.07 will be deemed to constitute “Excess Proceeds.” Notwithstanding the foregoing sentence, any amount of Proceeds offered to Holders pursuant to Section 4.07(b)(ii) in connection with an Asset Sale Offer made at any time after the Asset Sale will be deemed to have been applied as required and will not be deemed to be Excess Proceeds without regard to the extent to which such offer is accepted by the Holders. When the aggregate amount of Excess Proceeds exceeds $75,000,000, the Company will make an open market offer (an “Asset Sale Offer”) to all Holders of New Second Lien Secured Notes and, if required by the terms of any Pari Passu Lien Indebtedness, to all holders of such Pari Passu Lien Indebtedness, to purchase the maximum principal amount of such New Second Lien Secured Notes and Pari Passu Lien Indebtedness, as appropriate, on a pro rata basis, that may be purchased out of the Excess Proceeds, in accordance with the procedures set forth in the Second Lien Indenture and the agreement governing such Pari Passu Lien Indebtedness. The Company will commence an Asset Sale Offer with respect to Excess Proceeds within ten (10) Business Days after the date that Excess Proceeds exceed $75,000,000 by transmitting electronically or by mailing to the Holders the notice required pursuant to the terms of the Second Lien Indenture, with a copy to the Second Lien Trustees or otherwise in accordance with the Applicable Procedures. The Company may satisfy the foregoing obligations with respect to such Net Cash Proceeds from an Asset Sale by making an Asset Sale Offer with respect to such Net Cash Proceeds prior to the expiration of the application period or by electing to make an Asset Sale Offer with respect to such Net Cash Proceeds before the aggregate amount of Excess Proceeds exceeds $75,000,000.
(d) To the extent that the aggregate amount of New Second Lien Secured Notes and other Indebtedness tendered or otherwise surrendered in accordance with the terms of this Section 4.104.07(b) is less than the Excess Proceeds, the Company may use any remaining Excess Proceeds for any purpose not otherwise prohibited by this Second Lien Indenture. If the aggregate principal amount of New Second Lien Secured Notes and Indebtedness tendered or otherwise surrendered by Holders in accordance with the terms of this section exceeds the amount of Excess Proceeds, the Company will select the New Second Lien Secured Notes (and the Company or its agents will select such Pari Passu Lien Indebtedness, if applicable) to be purchased in the manner set forth in Section 4.07(h). Upon completion of any such Asset Sale Offer, the amount of Excess Proceeds will be reset at zero. To the extent the Excess Proceeds exceed the outstanding aggregate principal amount of the New Second Lien Secured Notes (and, if required by the terms thereof, all Pari Passu Lien Indebtedness), the Company need only make an Asset Sale Offer up to the outstanding aggregate principal amount of New Second Lien Secured Notes (and any such Pari Passu Lien Indebtedness), and any additional Excess Proceeds will not be subject to this covenant and will be permitted to be used for any purpose otherwise permitted by this Second Lien Indenture in the Company’s discretion.
(e) 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 such laws or regulations are applicable in connection with the purchase of the New Second Lien Secured Notes pursuant to an Asset Sale Offer. To the extent that the provisions of any securities laws or regulations conflict with the provisions of this Second Lien Indenture, the Company will comply with the applicable securities laws and regulations and will not be deemed to have breached their obligations under this Second Lien Indenture by virtue thereof.
(f) The provisions under this Second Lien Indenture relative to the Company’s obligation to make an offer to repurchase the applicable series of the New Second Lien Secured Notes as a result of an Asset Sale may be waived or modified at any time with the written consent of the Holders of a majority in principal amount of the applicable series of the New Second Lien Secured Notes.
(g) The ABL/FILO Facility limits, and future credit agreements or other agreements to which the Company becomes a party may prohibit or limit, the Company from purchasing any New Second Lien Secured Notes pursuant to an Asset Sale Offer. In the event the Company is prohibited from purchasing the New Second Lien Secured Notes, the Company may seek the consent of their lenders to the purchase of the New Second Lien Secured Notes or attempt to refinance the borrowings that contain such prohibition. If the Company does not obtain such consent or repay such borrowings, they will remain prohibited from purchasing the New Second Lien Secured Notes. In such case, the Company’s failure to purchase tendered New Second Lien Secured Notes would not constitute an Event of Default under this Second Lien Indenture. If more New Second Lien Secured Notes are tendered pursuant to an Asset Sale Offer than the Company is required to purchase, selection of such New Second Lien Secured Notes of the applicable series for purchase will be made in compliance with the requirements of the principal national securities exchange, if any, on which such New Second Lien Secured Notes are listed (but only to the extent that the applicable Second Lien Trustee has been notified in writing of such listing by the Company) or if such New Second Lien Secured Notes are not listed, on a pro rata basis or as nearly a pro rata basis as practicable (with adjustments so that only New Second Lien Secured Notes in denominations of $2,000 or integral multiples of $1,000 in excess thereof), by lot or by such other method as the applicable Second Lien Trustee will deem fair and appropriate (and in such manner as complies with applicable legal requirements, if any); andprovided that the selection of such New Second Lien Secured Notes for purchase will not result in a Holder with a principal amount of such New Second Lien Secured Notes less than the minimum denomination of $2,000. If all of such New Second Lien Secured Notes are in global form, interests in such New Second Lien Secured Notes to be redeemed will be selected for redemption by the Depositary in accordance with the Applicable Procedures. No New Second Lien Secured Note will be repurchased in part if less than the minimum denomination of such New Second Lien Secured Note would be left outstanding.
(h) Notices of an Asset Sale Offer will be delivered or caused to be delivered, or in the case of New Second Lien Secured Notes in global form, delivered or cause to be delivered electronically in accordance with the Applicable Procedures, at least thirty (30) but not more than sixty (60) days before the purchase date to each Holder of New Second Lien Secured Notes at such Holder’s registered address, with a copy to the applicable Second Lien Trustee, or otherwise in accordance with Applicable Procedures. If any New Second Lien Secured Note is to be purchased in part only, any notice of purchase that relates to such New Second Lien Secured Note will state the portion of the principal amount thereof that has been or is to be purchased.
(i) A new New Second Lien Secured Note of the applicable series in principal amount equal to the unpurchased portion of any New Second Lien Secured Note purchased in part will be issued in the name of the Holder thereof upon cancellation of the New Second Lien Secured Note. On and after the purchase date, unless the Company defaults in payment of the purchase price, interest will cease to accrue on the New Second Lien Secured Notes or portions thereof purchased.
Appears in 1 contract
Samples: Second Lien Indenture (Bed Bath & Beyond Canada L.P.)
Asset Sales. The Neither the Company nor any of its Subsidiaries will consummate any Asset Sale unless (a) following the Amendment No. 1 Effective Date and prior to the occurrence of the Fall-Away Event, (i) the fair market value of all property disposed of in such Asset Sale, when aggregated with any other Asset Sales consummated during the same fiscal year of the Company, shall not exceed (i) for the fiscal year of the Company ending December 31, 2009, $400,000,000 and (ii) for each fiscal year of the Company ending thereafter, 10% of the consolidated total assets of the Company and its Subsidiaries (determined as of the end of the most recently completed fiscal quarter of the Company) and (ii) no Default or Event of Default has occurred and is continuing prior to making such Asset Sale or would arise after giving effect (including pro forma effect reasonably acceptable to the Administrative Agent) thereto and (b) on and after the occurrence of the Fall-Away Event, such Asset Sale would not constitute a sale of all or substantially all of the assets of the Company and its Subsidiaries taken as a whole. Notwithstanding the foregoing, (i) the Company will not, and shall will not permit any of its Restricted Subsidiaries to, consummate an Asset Sale unless sell or otherwise dispose of any Equity Interests in YRCMI, and (iii) the Company will not permit YRCMI to sell, assign, transfer 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 otherwise dispose of the assets sold or otherwise disposed of (as determined in good faith by Indebtedness outstanding under the Company); (ii) 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 liabilities (as shown on the Company’s or such Restricted Subsidiary’s most recent balance sheet or in the footnotes thereto, or if incurred or accrued subsequent to the date of such balance sheet, such liabilities that would have been shown on the Company’s or such Restricted Subsidiary’s balance or the footnotes thereto if such incurrence or accrual had taken place on the date of such balance sheet, as determined by the Company) of the Company or any such Restricted Subsidiary (other than liabilities that are by their terms subordinated to the Notes) that are assumed by the transferee of any such assets; (b) any securities, notes or other obligations received by the Company or any such Restricted Subsidiary from such transferee that are converted by the Company or such Restricted Subsidiary into cash within 180 days of the receipt thereof (to the extent of the cash received); and (c) any Designated Non-cash Consideration received by the Company YRCMI Credit Agreement or any of its Restricted Subsidiaries in rights thereunder.; and
(f) no Default or Event of Default has occurred and is continuing prior to making such Asset Sale having an aggregate fair market value, taken together with all other Designated Non-cash Consideration received pursuant to this clause (c) or would arise after December 14, 2010 that is at that time outstanding, not to exceed the greater of $150 million and 5% 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 (including pro forma effect reasonably acceptable to subsequent changes the Administrative Agent) thereto; provided that, for the avoidance of doubt, to the extent that multiple assets are being sold in value)an Asset Sale or series of related Asset Sales, shall, the percentage thresholds referenced in each of (a), the foregoing clauses (b) and (c) above, and this clause (d) shall be deemed satisfied so long as the aggregate consideration received in respect of such assets pursuant to be cash for such Asset Sale(s) equals or exceeds the purposes of this provision or for purposes relevant percentage of the second paragraph aggregate appraised value of this Section 4.10; andsuch assets. Notwithstanding the foregoing, (i) the Company will not, and will not permit any of its Subsidiaries to, sell or otherwise dispose of any Equity Interests in YRCMI, (ii) the Company will not permit YRCMI to sell, assign, transfer or otherwise dispose of the Indebtedness outstanding under the YRCMI Credit Agreement or any of its rights thereunder and (iii) the Company may not consummate the Specified Sale and Leaseback Transaction or the Permitted Disposition unless (i) no Default or Event of Default has occurred and is continuing prior to making such Asset Sale or would arise after giving effect (including pro forma effect reasonably acceptable to the Administrative Agent) thereto and (ii) such Asset Sale is made on an arms-length basis and for 100% cash consideration.
Appears in 1 contract
Samples: Credit Agreement (Yrc Worldwide Inc)
Asset Sales. The Company shall not, and shall not permit any of its Restricted Subsidiaries to, consummate an Asset Sale unless (i) 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 (as determined in good faith by the Company); (ii) 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 liabilities (as shown on the Company’s or such Restricted Subsidiary’s most recent balance sheet or in the footnotes thereto, or if incurred or accrued subsequent to the date of such balance sheet, such liabilities that would have been shown on the Company’s or such Restricted Subsidiary’s balance or the footnotes thereto if such incurrence or accrual had taken place on the date of such balance sheet, as determined by the Company) of the Company or any such Restricted Subsidiary (other than liabilities that are by their terms subordinated to the Notes) that are assumed by the transferee of any such assets; (b) any securities, notes or other obligations received by the Company or any such Restricted Subsidiary from such transferee that are converted by the Company or such Restricted Subsidiary into cash within 180 days of the receipt thereof (to the extent of the cash received); and (c) any Designated Non-cash 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 Non-cash Consideration received pursuant to this clause (c) after December 14, 2010 the Issue Date that is at that time outstanding, not to exceed the greater of $150 million and 5% 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, in each of (a), (b) and (c) above, be deemed to be cash for the purposes of this provision or for purposes of the second paragraph of this Section 4.10; and (iii) 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 545 days of receipt thereof either (A) to prepay any Senior Debt or Indebtedness of a Restricted Subsidiary that is not a Guarantor and, in the case of any such Indebtedness under any revolving credit facility, effect a corresponding reduction in the availability under such revolving credit facility (or effect a permanent reduction in the availability under such revolving credit facility regardless of the fact that no prepayment is required in order to do so (in which case no prepayment should be required)), (B) to reinvest in Productive Assets (provided that this requirement shall be deemed satisfied if the Company or such Restricted Subsidiary, by the end of such 545-day period, has entered into a binding agreement under which it is contractually committed to reinvest in Productive Assets, and such investment is consummated within 120 days from the date on which such binding agreement is entered into, and, with respect to the amount of such investment, the reference to the 546th day after an Asset Sale in the second following sentence shall be deemed to be a reference to the 121st day after the date on which such binding agreement is entered into (but only if such 121st day occurs later than such 546th day)) or (C) a combination of prepayment and investment permitted by the foregoing clauses (iii)(A) and (iii)(B). Pending the final application of any such Net Cash Proceeds, the Company or such Restricted Subsidiary may temporarily reduce Indebtedness under a revolving credit facility, if any, or otherwise invest such Net Cash Proceeds in Cash Equivalents. On the 546th day after an Asset Sale or such earlier date, if any, as the Board of Directors of the Company or of such Restricted Subsidiary determines by Board Resolution not to apply the Net Cash Proceeds relating to such Asset Sale as set forth in clauses (iii)(A), (iii)(B) and (iii)(C) of the next preceding sentence (each, a “Net Proceeds Offer Trigger Date”), 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 (iii)(A), (iii)(B) and (iii)(C) of the next preceding sentence (each a “Net Proceeds Offer Amount”) shall be applied by the Company or such Restricted Subsidiary to make an offer to purchase (the “Net Proceeds Offer”) on a date (the “Net Proceeds Offer Payment Date”) not less than 30 nor more than 60 days following the applicable Net Proceeds Offer Trigger Date, from all Holders and holders of any other Senior Subordinated Debt of the Company or a Restricted Subsidiary of the Company requiring the making of such an offer, on a pro rata basis, the maximum amount of Notes and such other Senior Subordinated Debt that may be purchased with the Net Proceeds Offer Amount at a price equal to 100% of their principal amount (or, in the event such other Senior Subordinated Debt was issued with significant original issue discount, 100% of the accreted value thereof), plus accrued and unpaid interest thereon, if any, to the date of purchase (or, in respect of such other Senior Subordinated Debt, such lesser price, if any, as may be provided for by the terms of such Senior Subordinated Debt); provided, however, that if at any time any non-cash consideration (including any Designated 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 converted into or sold or otherwise disposed of for cash (other than interest received with respect to any such non-cash consideration), then such conversion or disposition shall be deemed to constitute an Asset Sale hereunder, and the Net Cash Proceeds thereof shall be applied in accordance with this Section 4.10. Notwithstanding the foregoing, if a Net Proceeds Offer Amount is less than $40.0 million, the application of the Net Cash Proceeds constituting such Net Proceeds Offer Amount to a Net Proceeds Offer may be deferred until such time as such Net Proceeds Offer Amount plus the aggregate amount of all Net Proceeds Offer Amounts arising subsequent to the Net Proceeds Offer Trigger Date relating to such initial Net Proceeds Offer Amount from all Asset Sales by the Company and its Restricted Subsidiaries aggregates to at least $40.0 million, at which time the Company or such Restricted Subsidiary shall apply all Net Cash Proceeds constituting all Net Proceeds Offer Amounts that have been so deferred to make a Net Proceeds Offer (the first date the aggregate of all such deferred Net Proceeds Offer Amounts is equal to $40.0 million or more shall be deemed to be a Net Proceeds Offer Trigger Date). Notwithstanding the immediately preceding paragraph, the Company and its Restricted Subsidiaries shall be permitted to consummate an Asset Sale without complying with such paragraph to the extent that: (i) at least 75% of the consideration for such Asset Sale constitutes Productive Assets, cash, Cash Equivalents and/or Marketable Securities; and (ii) such Asset Sale is for fair market value; provided that any consideration consisting of cash, Cash Equivalents and/or Marketable Securities received by the Company or any of its Restricted Subsidiaries in connection with any Asset Sale permitted to be consummated under this paragraph shall constitute Net Cash Proceeds subject to the provisions of the preceding paragraph. Notice of each Net Proceeds Offer will be sent to DTC, in the case of Global Notes, or mailed to the record Holders as shown on the register of Holders, in the case of certificated notes, 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 Section 3.09 hereof. To the extent that the aggregate amount of Notes and other Senior Subordinated Debt tendered pursuant to a Net Proceeds Offer is less than the Net Proceeds Offer Amount, the Company may use any remaining Net Proceeds Offer Amount for general corporate purposes or for any other purpose not prohibited by this Indenture. Upon completion of any such Net Proceeds Offer, the Net Proceeds Offer Amount shall be reset at zero. The Company shall comply with the requirements of Rule 14e-1 under the Exchange Act and any other securities laws and regulations thereunder to the extent such laws and regulations are applicable in connection with the repurchase of Notes pursuant to a Net Proceeds Offer. To the extent that the provisions of any securities laws or regulations conflict with the provisions of this Section 4.10, the Company shall comply with the applicable securities laws and regulations and shall not be deemed to have breached its obligations under this Section 4.10 by virtue thereof.
Appears in 1 contract
Samples: Indenture (TransDigm Group INC)
Asset Sales. The Company (a) MPM shall not, and shall not permit any of its the Restricted Subsidiaries to, consummate cause or make an Asset Sale Sale, unless (ix) MPM or any of the Company or the applicable Restricted SubsidiarySubsidiaries, as the case may be, receives consideration at the time of such Asset Sale at least equal to the fair market value Fair Market Value (as determined in good faith by MPM) of the assets sold or otherwise disposed of of, and (as determined in good faith by the Company); (iiy) at least 75% of the consideration therefor received by the Company MPM or the such Restricted Subsidiary, as the case may be, from such Asset Sale shall be is in the form of cash or Cash Equivalents; provided that the amount of:
(ai) any liabilities (as shown on the CompanyMPM’s or such Restricted Subsidiary’s most recent balance sheet or in the footnotes notes thereto, or if incurred or accrued subsequent to the date of such balance sheet, such liabilities that would have been shown on the Company’s or such Restricted Subsidiary’s balance or the footnotes thereto if such incurrence or accrual had taken place on the date of such balance sheet, as determined by the Company) of the Company MPM or any such Restricted Subsidiary (other than liabilities that are by their terms subordinated to the NotesNotes or any Note Guarantee) that are assumed by the transferee of any such assets; ,
(bii) any securities, notes or other obligations or other securities or assets received by the Company MPM or any such Restricted Subsidiary from such transferee that are converted by the Company MPM or such Restricted Subsidiary into cash within 180 days of the receipt thereof (to the extent of the cash received); and , and
(ciii) any Designated Non-cash Consideration received by the Company MPM or any of its the Restricted Subsidiaries in such Asset Sale having an aggregate fair market valueFair Market Value, taken together with all other Designated Non-cash Consideration received pursuant to this clause (ciii) after December 14, 2010 that is at that time outstanding, not to exceed the greater of $150 million and 53.0% of Total Assets and $70.0 million at the time of the receipt of such Designated Non-cash Consideration (with the fair market value 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 of (a), (b) and (c) above, shall be deemed to be cash Cash Equivalents for the purposes of this provision Section 4.06(a).
(b) Within 365 days after MPM’s or for purposes any Restricted Subsidiary’s receipt of the second paragraph Net Proceeds of any Asset Sale, MPM or such Restricted Subsidiary may apply the Net Proceeds from such Asset Sale, at its option to any one or more of the following:
(i) (a) to repay (A) any First Priority Lien Obligations (but not, for the avoidance of doubt, ABL Obligations secured by junior Liens on the Notes Priority Collateral) and, if the Indebtedness repaid is revolving credit Indebtedness, to correspondingly reduce commitments with respect thereto, and, if the Issuer shall so reduce First Priority Lien Obligations, the Issuer will equally and ratably reduce Obligations under the Notes in any manner set forth in clause (D) below, (B) Indebtedness of a Restricted Subsidiary that is not a Note Guarantor; (C) the Notes; or (D) Pari Passu Indebtedness other than First Priority Lien Obligations so long as the Net Proceeds are with respect to assets not constituting Collateral (provided that if MPM or any Note Guarantor shall so reduce Obligations under Pari Passu Indebtedness pursuant to this clause (D), MPM shall equally and ratably reduce Obligations under the Notes as provided pursuant to Article III, through open market purchases (provided that such purchases are at or above 100% of the principal amount thereof) and/or by making an offer (in accordance with the procedures set forth below for an Asset Sale Offer) to all Holders to purchase at a purchase price equal to 100% of the principal amount thereof, plus accrued and unpaid interest, if any, the pro rata principal amount of the Notes, or (b) to repay ABL Obligations (which repayment need not be permanent), to the extent the Net Proceeds are from an Asset Sale of ABL Priority Collateral (including indirect Asset Sales of ABL Priority Collateral due to the sale of the Capital Stock of a Person);
(ii) to make an investment in any one or more businesses (provided that if such investment is in the form of the acquisition of Capital Stock of a Person, such acquisition results in such Person becoming a Restricted Subsidiary of MPM or, if such Person is a Restricted Subsidiary of MPM, in an increase in the percentage ownership of such Person by MPM or any Restricted Subsidiary of MPM), assets, or property or capital expenditures, in each case used or useful in a Similar Business; or
(iii) to make an investment in any one or more businesses (provided that if such investment is in the form of the acquisition of Capital Stock of a Person, such acquisition results in such Person becoming a Restricted Subsidiary of MPM or, if such Person is a Restricted Subsidiary of MPM, in an increase in the percentage ownership of such Person by MPM or any Restricted Subsidiary of MPM), properties or assets that replace the properties and assets that are the subject of such Asset Sale. In the case of Sections 4.06(b)(ii) and (iii), a binding commitment shall be treated as a permitted application of the Net Proceeds from the date of such commitment; provided that in the event such binding commitment is later canceled or terminated for any reason before such Net Proceeds are so applied, MPM or such Restricted Subsidiary may satisfy its obligation as to any Net Proceeds by entering into another binding commitment within nine months of such cancellation or termination of the prior binding commitment; provided, further that MPM or such Restricted Subsidiary may only enter into such a commitment under the foregoing provision one time with respect to each Asset Sale. Pending the final application of any such Net Proceeds, MPM or such Restricted Subsidiary may temporarily reduce Indebtedness under a revolving credit facility, if any, or otherwise invest such Net Proceeds in any manner not otherwise prohibited by this Indenture. Any Net Proceeds from any Asset Sale that are not applied as provided and within the time period set forth in the first sentence of this Section 4.104.06(b) (it being understood that any portion of such Net Proceeds used to make an offer to purchase Notes, as described in clause (i) of this Section 4.06(b), shall be deemed to have been invested whether or not such offer is accepted) shall be deemed to constitute “Excess Proceeds.” When the aggregate amount of Excess Proceeds exceeds $20.0 million, MPM shall make an offer to all Holders of Notes (and, at the option of MPM, to holders of any Pari Passu Indebtedness) (an “Asset Sale Offer”) to purchase the maximum principal amount of Notes (and such First Priority Lien Obligations or other Pari Passu Indebtedness, as applicable), that is at least $2,000 and an integral multiple of $1,000, that may be purchased out of the Excess Proceeds at an offer price in cash in an amount equal to 100% of the principal amount thereof (or, in the event such First Priority Lien Obligations or Pari Passu Indebtedness was issued with significant original issue discount, 100% of the accreted value thereof), plus accrued and unpaid interest, if any (or, in respect of such First Priority Lien Obligations or Pari Passu Indebtedness, such lesser price, if any, as may be provided for by the terms of such Indebtedness), to the date fixed for the closing of such offer, in accordance with the procedures set forth in this Section 4.06. MPM shall commence an Asset Sale Offer with respect to Excess Proceeds within ten Business Days after the date that Excess Proceeds exceeds $20.0 million by electronically delivering, or mailing by first class mail, the notice required pursuant to the terms of Section 4.06(f), with a copy to the Trustee. To the extent that the aggregate amount of Notes (and such First Priority Lien Obligations or Pari Passu Indebtedness) tendered pursuant to an Asset Sale Offer is less than the Excess Proceeds, MPM may use any remaining Excess Proceeds for general corporate purposes. If the aggregate principal amount of Notes (and such First Priority Lien Obligations or Pari Passu Indebtedness, as applicable) surrendered by holders thereof exceeds the amount of Excess Proceeds, the Trustee shall select the Notes to be purchased in the manner described in Section 4.06(e). Upon completion of any such Asset Sale Offer, the amount of Excess Proceeds shall be reset at zero.
(c) MPM shall comply with the requirements of Rule 14e-l under the Exchange Act and any other securities laws and regulations to the extent such laws or regulations are applicable in connection with the repurchase of the Notes pursuant to an Asset Sale Offer. To the extent that the provisions of any securities laws or regulations conflict with the provisions of this Indenture, MPM shall comply with the applicable securities laws and regulations and shall not be deemed to have breached its obligations described in this Indenture by virtue thereof.
(d) Not later than the date upon which written notice of an Asset Sale Offer is delivered to the Trustee as provided above, MPM shall deliver to the Trustee an Officer’s Certificate as to (i) the amount of the Excess Proceeds, (ii) the allocation of the Net Proceeds from the Asset Sales pursuant to which such Asset Sale Offer is being made and (iii) the compliance of such allocation with the provisions of Section 4.06(b). On such date, MPM shall also irrevocably deposit with the Trustee or with a paying agent (or, if MPM or a Wholly Owned Subsidiary is acting as the Paying Agent, segregate and hold in trust) an amount equal to the Excess Proceeds to be invested in Cash Equivalents, as directed in writing by MPM, and to be held for payment in accordance with the provisions of this Section 4.06. Upon the expiration of the period for which the Asset Sale Offer remains open (the “Offer Period”), MPM shall deliver to the Trustee for cancellation the Notes or portions thereof that have been properly tendered to and are to be accepted by MPM. 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 MPM to the Trustee are greater than the purchase price of the Notes tendered, the Trustee shall deliver the excess to MPM immediately after the expiration of the Offer Period for application in accordance with this Section 4.06.
(e) Holders electing to have a Note purchased shall be required to surrender the Note, with an appropriate form duly completed, to MPM 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 MPM receive not later than one Business Day prior to the purchase date, a telegram, telex, facsimile transmission or letter setting forth the name of the Holder, the principal amount of the Note which was delivered by the Holder for purchase and a statement that such Holder is withdrawing his election to have such Note purchased. If at the end of the Offer Period more Notes (and First Priority Lien Obligations or Pari Passu Indebtedness, as applicable) are tendered pursuant to an Asset Sale Offer than MPM are required to purchase, the principal amount of Notes (and First Priority Lien Obligations or Pari Passu Indebtedness) to be purchased will be determined pro rata based on the principal amounts so tendered and the selection of the actual Notes of each series for purchase will be made by the Trustee on a pro rata basis to the extent practicable; andprovided that no Notes of $2,000 or less shall be purchased in part. Selection of such First Priority Lien Obligations or Pari Passu Indebtedness shall be made pursuant to the terms of such Indebtedness.
(f) Notices of an Asset Sale Offer shall be delivered electronically or mailed by first class mail, postage prepaid, at least 30 but not more than 60 days before the purchase date to each Holder of Notes at such Holder’s registered address. If any Note is to be purchased in part only, any notice of purchase that relates to such Note shall state the portion of the principal amount thereof that has been or is to be purchased.
Appears in 1 contract
Samples: Indenture (Momentive Performance Materials Quartz, Inc.)
Asset Sales. (a) The Company Issuer shall not, and shall not permit any of its Restricted Subsidiaries to, consummate an Asset Sale unless Sale, unless:
(i1) the Company Issuer or the applicable 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 sold or otherwise disposed of (as determined in good faith by the Company)Issuer) of the assets sold or otherwise disposed of; and
(ii2) except in the case of a Permitted Asset Swap, at least 75% of the consideration therefor received by the Company Issuer or the any such Restricted Subsidiary, as the case may be, from such Asset Sale shall be is in the form of cash or Cash Equivalents; provided that the amount of:
(aA) any liabilities (as shown on the Company’s or such Restricted SubsidiaryIssuer’s most recent consolidated balance sheet or in the footnotes thereto, or if incurred or accrued subsequent to the date of such balance sheet, such liabilities that would have been shown reflected on the CompanyIssuer’s consolidated balance sheet or such Restricted Subsidiary’s balance 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 CompanyIssuer) of the Company Issuer or any such Restricted Subsidiary (other than liabilities that are by their terms subordinated to the Notes) that are assumed by the transferee of any such assets; assets (bor are otherwise extinguished in connection with the transactions relating to such Asset Sale) and for which the Issuer and all such Restricted Subsidiaries have been released,
(B) any securities, notes or other obligations or securities received by the Company Issuer or any such Restricted Subsidiary from such transferee that are converted by the Company Issuer or such Restricted Subsidiary into cash within 180 days of the receipt thereof or Cash Equivalents, or by their terms are required to be satisfied for cash or Cash Equivalents (to the extent of the cash or Cash Equivalents received); and , in each case, within 180 days following the closing of such Asset Sale, and
(cC) any Designated Non-cash Cash Consideration received by the Company Issuer or any of its such Restricted Subsidiaries Subsidiary in such Asset Sale having an aggregate fair market value, taken together with all other Designated Non-cash Cash Consideration received pursuant to this clause (cC) after December 14, 2010 that is at that time outstandingoutstanding (but less the amount of any cash or Cash Equivalents received in connection with a subsequent sale or conversion of or collection on such Designated Non-Cash Consideration, not up to exceed the greater lesser of $150 million and 5% of Total Assets at (a) the time amount of the receipt cash and Cash Equivalents so received (less the cost of disposition, if any) and (b) the initial amount of such Designated Non-cash Consideration (Cash Consideration), up to an aggregate of the greater of $100.0 million and 4.5% of Total Assets,, with the fair market value of each item of Designated Non-cash Cash Consideration and capacity to receive payment in the form of Designated Non-Cash Consideration being determined in good faith by the Issuer and measured at the time received received, in the case of measuring fair market value, and without giving effect to subsequent changes in value), shall, in each of (a), (b) and (c) above, shall be deemed to be cash for the purposes of this provision and for no other purpose.
(b) Within 365 days after the receipt of any Net Proceeds of any Asset Sale, the Issuer or for purposes such Restricted Subsidiary, at its option, may apply the Net Proceeds from such Asset Sale,
(1) to reduce:
(A) (x) solely with respect to any Net Proceeds from an Asset Sale of ABL Priority Collateral, ABL Obligations, (and to correspondingly reduce commitments with respect thereto) or (y) Obligations under the Notes (provided that such purchases or redemptions of Notes are at or above 100% of the second paragraph principal amount thereof) or any other First Priority Lien Obligations of the Issuer or a Guarantor (and, if such First Priority Lien Obligations are of revolving credit Obligations, to correspondingly reduce commitments with respect thereto); provided that if such Net Proceeds are applied to First Priority Lien Obligations other than the Notes, then the Issuer shall equally and ratably (i) reduce Obligations under the Notes (x) as provided under Section 3.07 hereof or (y) through open market or privately negotiated purchases (provided that such purchases are at or above 100% of the principal amount thereof) or (ii) make an offer (in accordance with Section 4.11(c) hereof) to all Holders of Notes to purchase their Notes at 100% of the principal amount thereof, plus the amount of accrued but unpaid interest, if any, on the principal amount of Notes that would otherwise be required to be redeemed under clause (i); or
(B) Indebtedness (i) of a Non-Guarantor Subsidiary, other than Indebtedness owed to the Issuer or another Restricted Subsidiary or (ii) that is secured by the assets or property that were the subject of such Asset Sale; provided that in each case for this clause (b), such assets or property did not constitute Collateral; or
(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 Issuer, or another of its Restricted Subsidiaries, as the case may be, owning an amount of the Capital Stock of such business such that it constitutes a Restricted Subsidiary, (B) acquire properties (other than working capital), (C) make capital expenditures or (D) acquire other assets (other than working capital) that, in the case of each of clauses (A), (B), (C) and (D) above, either (x) are used or useful in a Similar Business or (y) replace the businesses, properties and/or assets that are the subject of such Asset Sale; provided that, in the case of clause (2) above, a binding commitment shall be treated as a permitted application of the Net Proceeds from the date of such commitment so long as the Issuer, or such other Restricted Subsidiary enters into such commitment with the good-faith expectation that such Net Proceeds will be applied to satisfy such commitment within 180 days of such commitment (an “Acceptable Commitment”); and provided, further, that if any Acceptable Commitment is later cancelled or terminated for any reason before such Net Proceeds are applied, then such Net Proceeds shall, at the time of such cancellation or termination, constitute Excess Proceeds; or
(3) any combination of the foregoing.
(c) Any Net Proceeds from an Asset Sale that are not invested or applied as provided (for the avoidance of doubt, an offer to purchase Notes pursuant to clause (1)(a)(ii) of the immediately preceding paragraph, if not accepted, shall be deemed an application of Net Proceeds) and within the time period set forth in Section 4.11(b) hereof (or such earlier date as the Issuer determines in its sole discretion that such Net Proceeds will not be invested applied as provided) will be deemed to constitute “Excess Proceeds.” When the aggregate amount of Excess Proceeds exceeds $25.0 million, the Issuer or any Restricted Subsidiary shall make an offer to all Holders of the Notes and, if required by the terms of any First Priority Debt, to the holders of such First Priority Debt (an “Asset Sale Offer”) to purchase the maximum aggregate principal amount of the Notes in minimum denominations of $2,000 and integral multiples of $1,000 in excess thereof and such First Priority Debt that may be purchased out of the Excess Proceeds at an offer price in cash in an amount equal to 100% of the principal amount thereof, plus accrued and unpaid interest, if any (or, in respect of such First Priority Debt, such lesser price, if any, as may be provided for or permitted by the terms of such First Priority Debt), to the date fixed for the closing of such offer, in accordance with the procedures set forth in this Indenture.
(d) The Issuer shall commence an Asset Sale Offer with respect to Excess Proceeds within thirty (30) days after the date that Excess Proceeds exceed $25.0 million by electronically delivering or mailing the notice required pursuant to the terms of this Section 4.10Indenture, with a copy to the Trustee.
(e) To the extent that the aggregate principal amount of Notes and such First Priority Debt tendered pursuant to an Asset Sale Offer is less than the Excess Proceeds, the Issuer may use any remaining Excess Proceeds for general corporate purposes, subject to the other covenants contained in this Indenture. If the aggregate amount (determined as above) of Notes and the First Priority Debt surrendered in an Asset Sale Offer exceeds the amount of Excess Proceeds, the Trustee shall select the Notes and the Issuer or the agent for such First Priority Debt shall select such First Priority Debt to be purchased (a) on a pro rata basis based on the amount (determined as set forth above) of the Notes and such First Priority Debt tendered or (b) by lot or such similar method in accordance with the procedures of The Depository Trust Company; andprovided 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.
(f) Pending the final application of any Net Proceeds pursuant to this covenant, the holder of such Net Proceeds may apply such Net Proceeds temporarily to reduce Indebtedness outstanding under a revolving credit facility or otherwise invest such Net Proceeds in any manner not prohibited by this Indenture.
(g) The Issuer shall comply with the requirements of Rule 14e-1 under the Exchange Act and any other securities laws and regulations thereunder to the extent such laws or regulations are applicable in connection with the repurchase of the Notes pursuant to an Asset Sale Offer. To the extent that the provisions of any securities laws or regulations conflict with the provisions of this Indenture, the Issuer shall comply with the applicable securities laws and regulations and shall not be deemed to have breached its obligations described in this Indenture by virtue thereof.
Appears in 1 contract
Samples: Indenture (Cumulus Media Inc)
Asset Sales. The Company shall not, and shall not permit any of its Restricted Subsidiaries to, consummate an Asset Sale unless (i) 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 (as determined in good faith by the Company); (ii) 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 liabilities (as shown on the Company’s or such Restricted Subsidiary’s most recent balance sheet or in the footnotes thereto, or if incurred or accrued subsequent to the date of such balance sheet, such liabilities that would have been shown on the Company’s or such Restricted Subsidiary’s balance or the footnotes thereto if such incurrence or accrual had taken place on the date of such balance sheet, as determined by the Company) of the Company or any such Restricted Subsidiary (other than liabilities that are by their terms subordinated to the Notes) that are assumed by the transferee of any such assets; (b) any securities, notes or other obligations received by the Company or any such Restricted Subsidiary from such transferee that are converted by the Company or such Restricted Subsidiary into cash within 180 days of the receipt thereof (to the extent of the cash received); and (c) any Designated Non-cash 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 Non-cash Consideration received pursuant to this clause (c) after December 14, 2010 that is at that time outstanding, not to exceed the greater of $150 million and 5% 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, in each of (a), (b) and (c) above, be deemed to be cash for the purposes of this provision or for purposes of the second paragraph of this Section 4.10; and (iii) 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 545 days of receipt thereof either (A) to prepay any Senior Debt or Indebtedness of a Restricted Subsidiary that is not a Guarantor and, in the case of any such Indebtedness under any revolving credit facility, effect a corresponding reduction in the availability under such revolving credit facility (or effect a permanent reduction in the availability under such revolving credit facility regardless of the fact that no prepayment is required in order to do so (in which case no prepayment should be required)), (B) to reinvest in Productive Assets (provided that this requirement shall be deemed satisfied if the Company or such Restricted Subsidiary, by the end of such 545-day period, has entered into a binding agreement under which it is contractually committed to reinvest in Productive Assets, and such investment is consummated within 120 days from the date on which such binding agreement is entered into, and, with respect to the amount of such investment, the reference to the 546th day after an Asset Sale in the second following sentence shall be deemed to be a reference to the 121st day after the date on which such binding agreement is entered into (but only if such 121st day occurs later than such 546th day)) or (C) a combination of prepayment and investment permitted by the foregoing clauses (iii)(A) and (iii)(B). Pending the final application of any such Net Cash Proceeds, the Company or such Restricted Subsidiary may temporarily reduce Indebtedness under a revolving credit facility, if any, or otherwise invest such Net Cash Proceeds in Cash Equivalents. On the 546th day after an Asset Sale or such earlier date, if any, as the Board of Directors of the Company or of such Restricted Subsidiary determines by Board Resolution not to apply the Net Cash Proceeds relating to such Asset Sale as set forth in clauses (iii)(A), (iii)(B) and (iii)(C) of the next preceding sentence (each, a “Net Proceeds Offer Trigger Date”), 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 (iii)(A), (iii)(B) and (iii)(C) of the next preceding sentence (each a “Net Proceeds Offer Amount”) shall be applied by the Company or such Restricted Subsidiary to make an offer to purchase (the “Net Proceeds Offer”) on a date (the “Net Proceeds Offer Payment Date”) not less than 30 nor more than 60 days following the applicable Net Proceeds Offer Trigger Date, from all Holders and holders of any other Senior Subordinated Debt of the Company or a Restricted Subsidiary of the Company requiring the making of such an offer, on a pro rata basis, the maximum amount of Notes and such other Senior Subordinated Debt that may be purchased with the Net Proceeds Offer Amount at a price equal to 100% of their principal amount (or, in the event such other Senior Subordinated Debt was issued with significant original issue discount, 100% of the accreted value thereof), plus accrued and unpaid interest thereon, if any, to the date of purchase (or, in respect of such other Senior Subordinated Debt, such lesser price, if any, as may be provided for by the terms of such Senior Subordinated Debt); provided, however, that if at any time any non-cash consideration (including any Designated 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 converted into or sold or otherwise disposed of for cash (other than interest received with respect to any such non-cash consideration), then such conversion or disposition shall be deemed to constitute an Asset Sale hereunder, and the Net Cash Proceeds thereof shall be applied in accordance with this Section 4.10. Notwithstanding the foregoing, if a Net Proceeds Offer Amount is less than $40.0 million, the application of the Net Cash Proceeds constituting such Net Proceeds Offer Amount to a Net Proceeds Offer may be deferred until such time as such Net Proceeds Offer Amount plus the aggregate amount of all Net Proceeds Offer Amounts arising subsequent to the Net Proceeds Offer Trigger Date relating to such initial Net Proceeds Offer Amount from all Asset Sales by the Company and its Restricted Subsidiaries aggregates to at least $40.0 million, at which time the Company or such Restricted Subsidiary shall apply all Net Cash Proceeds constituting all Net Proceeds Offer Amounts that have been so deferred to make a Net Proceeds Offer (the first date the aggregate of all such deferred Net Proceeds Offer Amounts is equal to $40.0 million or more shall be deemed to be a Net Proceeds Offer Trigger Date). Notwithstanding the immediately preceding paragraph, the Company and its Restricted Subsidiaries shall be permitted to consummate an Asset Sale without complying with such paragraph to the extent that: (i) at least 75% of the consideration for such Asset Sale constitutes Productive Assets, cash, Cash Equivalents and/or Marketable Securities; and (ii) such Asset Sale is for fair market value; provided that any consideration consisting of cash, Cash Equivalents and/or Marketable Securities received by the Company or any of its Restricted Subsidiaries in connection with any Asset Sale permitted to be consummated under this paragraph shall constitute Net Cash Proceeds subject to the provisions of the preceding paragraph. Notice of each Net Proceeds Offer will be sent to DTC, in the case of Global Notes, or mailed to the record Holders as shown on the register of Holders, in the case of certificated notes, 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 Section 3.09 hereof. To the extent that the aggregate amount of Notes and other Senior Subordinated Debt tendered pursuant to a Net Proceeds Offer is less than the Net Proceeds Offer Amount, the Company may use any remaining Net Proceeds Offer Amount for general corporate purposes or for any other purpose not prohibited by this Indenture. Upon completion of any such Net Proceeds Offer, the Net Proceeds Offer Amount shall be reset at zero. The Company shall comply with the requirements of Rule 14e-1 under the Exchange Act and any other securities laws and regulations thereunder to the extent such laws and regulations are applicable in connection with the repurchase of Notes pursuant to a Net Proceeds Offer. To the extent that the provisions of any securities laws or regulations conflict with the provisions of this Section 4.10, the Company shall comply with the applicable securities laws and regulations and shall not be deemed to have breached its obligations under this Section 4.10 by virtue thereof.
Appears in 1 contract
Samples: Indenture (TransDigm Group INC)
Asset Sales. The Company shall not, and shall not permit Effect any of its Restricted Subsidiaries to, consummate an Asset Sale unless except that the following shall be permitted:
(ia) disposition of used, worn out, obsolete or surplus property by any Company in the Company ordinary course of business and the abandonment or other disposition of Intellectual Property that is, in the applicable reasonable judgment of the Designated Company, no longer economically practicable to maintain or useful in the conduct of the business of the Companies taken as a whole;
(b) so long as no Default is then continuing or would result therefrom, any other Asset Sale (other than the Equity Interests of any German Borrower Holding Company, Aleris German Non-Wholly Owned Subsidiary, or Wholly Owned Subsidiary, in each case that is a 1060441.101066947.03-CHISR01A - MSW Restricted Subsidiary, as unless, after giving effect to any such Asset Sale, such person either ceases to be a Restricted Subsidiary or, in the case may beof an Excluded Collateral Subsidiary, receives consideration at the time of such Asset Sale at least equal to the becomes a Joint Venture Subsidiary) for fair market value of the assets sold or otherwise disposed of (as determined in good faith by the Company); (ii) value, with at least 75% of the consideration received by the Company or the Restricted Subsidiary, as the case may be, from for all such Asset Sale 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 in the form of cash or Cash Equivalents; provided that the amount of:
deemed to be cash: (ai) any liabilities (as shown on the Designated Company’s or such Restricted Subsidiary’s most recent balance sheet provided hereunder or in the footnotes thereto, or if incurred or accrued subsequent to ) of the date of such balance sheet, such liabilities that would have been shown on the Company’s Designated Company or such Restricted Subsidiary’s balance or the footnotes thereto if such incurrence or accrual had taken place on the date of such balance sheet, as determined by the Company) of the Company or any such Restricted Subsidiary (other than liabilities that are by their terms subordinated to the Notes) payment in cash of the Obligations, that are assumed by the transferee with respect to the applicable Asset Sale and for which Holdings, the Designated Company and all of any such assets; its Restricted Subsidiaries (band, 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, notes or other obligations securities received by the Designated Company or any such the applicable Restricted Subsidiary from such transferee that are converted by the Designated Company or such Restricted Subsidiary into cash within 180 days of the receipt thereof (to the extent of the cash received); ) within 180 days following the closing of the applicable Asset Sale, and (ciii) any Designated Nonaggregate non-cash Consideration consideration received by the Designated Company or any of its the applicable Restricted Subsidiaries in such Asset Sale Subsidiary having an aggregate fair market valuevalue (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, taken together 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 all 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 Designated 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 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 1060441.101066947.03-CHISR01A - MSW of amounts paid by such Company to repurchase the Inventory subject to such Asset Sales) (but in each case excluding any Permitted German Alternative Financing, Permitted Novelis Switzerland Financing and any Permitted Customer Account Financing), shall not exceed the greater of (x) 15% of Consolidated Net Tangible Assets and (y) $750,000,000, and (C) with respect to any such sale, transfer or disposition of Receivables incurred by a Company that is organized in a Non-Loan Party Jurisdiction, the sum of (w) the aggregate outstanding principal amount of the Indebtedness of all Securitization Entities that are organized in a Non-Loan Party Jurisdiction under all Qualified Securitization Transactions under Section 6.01(e), plus (x) the aggregate amount of Indebtedness incurred by a Subsidiary that is organized in a Non-Loan Party Jurisdiction then outstanding under Section 6.01(m), plus (y) the aggregate book value at the time of determination of the then outstanding Receivables of a Company that is organized in a Non-Loan Party Jurisdiction subject to a Permitted Factoring Facility pursuant to this Section 6.06(e) at such time, plus (z) the aggregate consideration received by a Company that is organized in a Non-Loan Party Jurisdiction for Asset Sales permitted under Section 6.06(r) (net of amounts paid by such Company to repurchase the Inventory subject to such Asset Sales) (but in each case excluding any Permitted German Alternative Financing, any Permitted Novelis Switzerland Financing and any Permitted Customer Account Financing), shall not exceed the greater of (x) 15% of Consolidated Net Tangible Assets and (y) $750,000,000;
(f) the sale or disposition of cash Consideration received 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 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 1060441.101066947.03-CHISR01A - MSW 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 such transaction and (2) either the creation or existence 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 (ch) after December 14with respect to the enforcement of the pledge of such assets acquired by such Restricted Grantor, 2010 that 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 that time outstandingleast 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 to exceed the greater of $150 million and 5(1) 2% of Total Consolidated Net Tangible Assets at and (2) $100,000,000 in the time aggregate since the Closing Date; provided that so long as the assets acquired by any Company pursuant to the respective Asset Swap are located in the same country as the assets sold by such Company, such aggregate cap will not apply to such Asset Swap; 1060441.101066947.03-CHISR01A - MSW (j) sales, transfers and other dispositions of Receivables (whether now existing or arising or acquired in 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, in each of (a), (bfuture) and (cRelated Security to a Securitization Entity in connection with a Qualified Securitization Transaction permitted under Section 6.01(e) aboveand all sales, be deemed to be cash for the purposes transfers or other dispositions of this provision or for purposes of the second paragraph of this Securitization Assets by a Securitization Entity under, and pursuant to, a Qualified Securitization Transaction permitted under Section 4.10; and6.01(e);
Appears in 1 contract
Samples: Credit Agreement (Novelis Inc.)
Asset Sales. The disposition of used, worn out, obsolete or surplus property by any Company shall notin the ordinary course of business and the abandonment or other disposition of Intellectual Property that is, and shall not permit in the reasonable judgment of the Designated Company, no longer economically practicable to maintain or useful in the conduct of the business of the Companies taken as a whole; (b) so long as no Default is then continuing or would result therefrom, any of its Restricted Subsidiaries to, consummate an other Asset Sale unless (i) other than the Company Equity Interests of any German Borrower Holding Company, Aleris German Non-Wholly Owned Subsidiary, or the applicable Wholly Owned Subsidiary, in each case that is a Restricted Subsidiary, as unless, after giving effect to any such Asset Sale, such person either ceases to be a Restricted Subsidiary or, in the case may beof an Excluded Collateral Subsidiary, receives consideration at the time of such Asset Sale at least equal to the becomes a Joint Venture Subsidiary) for fair market value of the assets sold or otherwise disposed of (as determined in good faith by the Company); (ii) value, with at least 75% of the consideration received by the Company or the Restricted Subsidiary, as the case may be, from for all such Asset Sale 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 in the form of cash or Cash Equivalents; provided that the amount of:
deemed to be cash: (ai) any liabilities (as shown on the Designated Company’s or such Restricted Subsidiary’s most recent balance sheet provided hereunder or in the footnotes thereto, or if incurred or accrued subsequent to ) of the date of such balance sheet, such liabilities that would have been shown on the Company’s Designated Company or such Restricted Subsidiary’s balance or the footnotes thereto if such incurrence or accrual had taken place on the date of such balance sheet, as determined by the Company) of the Company or any such Restricted Subsidiary (other than liabilities that are by their terms subordinated to the Notes) payment in cash of the Obligations, that are assumed by the transferee with respect to the applicable Asset Sale and for which Holdings, the Designated Company and all of any such assets; its Restricted Subsidiaries (band, 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, notes or other obligations securities received by the Designated Company or any such the applicable Restricted Subsidiary from such transferee that are converted by the Designated Company or such Restricted Subsidiary into cash within 180 days of the receipt thereof (to the extent of the cash received); ) within 180 days following the closing of the applicable Asset Sale, and (ciii) any Designated Nonaggregate non-cash Consideration consideration received by the Designated Company or any of its the applicable Restricted Subsidiaries in such Asset Sale Subsidiary having an aggregate fair market valuevalue (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, taken together 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 all 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 Designated 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 227 1031947.12E-CHISR1060441.10-CHISR01A - MSW 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 outstanding Receivables of a Company that is organized in a Non-Principal Jurisdiction subject to a Permitted Factoring Facility pursuant to this Section 6.06(e) at such time, plus (z) the aggregate consideration received by a Company that is organized in a Non-Principal Jurisdiction for Asset Sales permitted under Section 6.06(r) (net of amounts paid by such Company to repurchase the Inventory subject to such Asset Sales) (but in each case excluding any Permitted German Alternative Financing, Permitted Novelis Switzerland Financing and any Permitted Customer Account Financing), shall not exceed the greater of (x) 15% of Consolidated Net Tangible Assets and (y) $750,000,000, and (C) with respect to any such sale, transfer or disposition of Receivables incurred by a Company that is organized in a Non-Loan Party Jurisdiction, the sum of (w) the aggregate outstanding principal amount of the Indebtedness of all Securitization Entities that are organized in a Non-Loan Party Jurisdiction under all Qualified Securitization Transactions under Section 6.01(e), plus (x) the aggregate amount of Indebtedness incurred by a Subsidiary that is organized in a Non-Loan Party Jurisdiction then outstanding under Section 6.01(m), plus (y) the aggregate book value at the time of determination of the then outstanding Receivables of a Company that is organized in a Non-Loan Party Jurisdiction subject to a Permitted Factoring Facility pursuant to this Section 6.06(e) at such time, plus (z) the aggregate consideration received by a Company that is organized in a Non-Loan Party Jurisdiction for Asset Sales permitted under Section 6.06(r) (net of amounts paid by such Company to repurchase the Inventory subject to such Asset Sales) (but in each case excluding any Permitted German Alternative Financing, any Permitted Novelis Switzerland Financing and any Permitted Customer Account Financing), shall not exceed the greater of (x) 15% of Consolidated Net Tangible Assets and (y) $750,000,000; (f) the sale or disposition of cash Consideration received 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 228 1031947.12E-CHISR1060441.10-CHISR01A - MSW 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 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 such transaction and (2) either the creation or existence 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 (ch) after December 14with respect to the enforcement of the pledge of such assets acquired by such Restricted Grantor, 2010 that 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 that time outstandingleast 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 to exceed the greater of $150 million and 5(1) 2% of Total 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 Company 229 1031947.12E-CHISR1060441.10-CHISR01A - MSW 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) no Default is then continuing or would result therefrom; (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 such sale, transfer of disposition by a Company that is organized in a Principal Jurisdiction, such transaction is a Permitted German Alternative Financing, (B) with respect to any such sale, transfer or disposition of Receivables incurred by a Company that is organized in a Non- 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 this Section 6.01(e), plus (x) the aggregate amount of Indebtedness incurred by a Subsidiary that is organized in a Non-Principal Jurisdiction then outstanding under Section 6.01(m), plus (y) the aggregate book value at the time of determination of the receipt then outstanding Receivables of such Designated a Company that is organized in a Non-cash Consideration Principal Jurisdiction subject to a Permitted Factoring Facility pursuant to Section 6.06(e) at such time, plus (with z) the fair market value of each item of Designated aggregate consideration received by a Company that is organized in a Non-cash Consideration being measured Principal Jurisdiction for Asset Sales permitted under this Section 6.06(r) (net of amounts paid by such Company to repurchase the Inventory subject to such Asset Sales) (but in each case excluding any Permitted German Alternative Financing, any Permitted Novelis Switzerland Financing and any Permitted Customer Account Financing), shall not exceed the greater of (x) 15% of Consolidated Net Tangible Assets and (y) $750,000,000, and (C) with respect to any such sale, transfer or disposition of Receivables incurred by a Company that is organized in a Non-Loan Party Jurisdiction, the sum of (w) the aggregate outstanding principal amount of the Indebtedness of all Securitization Entities that are organized in a Non-Loan Party Jurisdiction under all Qualified Securitization Transactions under this Section 6.01(e), plus (x) the aggregate amount of Indebtedness incurred by a Subsidiary that is organized in a Non-Loan Party Jurisdiction then outstanding under Section 6.01(m), plus (y) the aggregate book value at the time of determination of the then outstanding Receivables of a Company that is organized in a Non-Loan Party Jurisdiction subject to a Permitted Factoring Facility pursuant to Section 6.06(e) at such time, plus (z) the aggregate consideration received by a Company that is organized in a Non-Loan Party Jurisdiction for Asset Sales permitted under this Section 6.06(r) (net of amounts paid by such Company to repurchase the Inventory subject to such Asset Sales) (but in each case excluding any Permitted German Alternative Financing, any Permitted Novelis Switzerland Financing and without giving effect to subsequent changes in valueany Permitted Customer Account Financing), shall, in each shall not exceed the greater of (a), (bx) 15% of Consolidated Net Tangible Assets and (cy) above, be deemed $750,000,000; (s) Asset Sales of 100% of the Equity Interests of any Chinese Subsidiary of the Designated Company to be cash a Chinese holding company that is a direct Wholly Owned Subsidiary of the Designated Company; provided that (i) any security interests granted to the Collateral Agent for the purposes benefit of this provision or 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 purposes the benefit of the second paragraph relevant Secured Parties pursuant to the relevant Security Documents in 100% of this Section 4.10; andthe Equity Interests of such holding company Subsidiary, which new security interests shall be 231 1031947.12E-CHISR1060441.10-CHISR01A - MSW
Appears in 1 contract
Samples: Credit Agreement (Novelis Inc.)
Asset Sales. The Company shall Borrower will not, and shall will not permit any Subsidiary to, sell, transfer, lease or otherwise dispose of (in one transaction or in a series of transactions) all or a substantial portion of its Restricted assets (whether now owned or hereafter acquired), except that the Borrower and the Subsidiaries to, consummate an Asset Sale unless may (i) sell, lease or otherwise dispose of inventory as a part of the Company outsourcing of a manufacturing activity previous conducted by the Borrower pursuant to which the Borrower or the applicable Restricted Subsidiary, as the case may be, receives consideration at the time Subsidiaries intend to repurchase substantially all of such Asset Sale at least equal inventory (or goods manufactured therewith) for resale to customers, (ii) sell, lease or otherwise dispose of inventory and obsolete equipment, in the ordinary course of business, (iii) sell, lease or otherwise dispose of property in any individual transaction not related to any other such transaction if the aggregate fair market value of the assets sold sold, leased or otherwise disposed of in such transaction is less than $5,000,000, (as determined iv) sell, lease or otherwise dispose of property to the Borrower or a Subsidiary in good faith any transaction permitted by the CompanySection 6.04(a)(iii); , (iiv) at least 75% of the consideration received by the Company or the Restricted Subsidiarysell accounts receivable in Non-Recourse Receivables Sales, as the case may be, from such Asset Sale shall be in the form of cash or Cash Equivalents; provided that the aggregate amount of:
(a) any liabilities (as shown on of accounts receivable of the Company’s or such Restricted Subsidiary’s most recent balance sheet or in Borrower and the footnotes thereto, or if incurred or accrued subsequent to the date of such balance sheet, such liabilities that would Subsidiaries which shall have been shown on the Company’s or such Restricted Subsidiary’s balance or the footnotes thereto if such incurrence or accrual had taken place on the date of such balance sheet, as determined by the Company) of the Company or any such Restricted Subsidiary (other than liabilities that are by their terms subordinated to the Notes) that are assumed by the transferee of any such assets; (b) any securities, notes or other obligations received by the Company or any such Restricted Subsidiary from such transferee that are converted by the Company or such Restricted Subsidiary into cash within 180 days of the receipt thereof (to the extent of the cash received); and (c) any Designated sold in Non-cash 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 Non-cash Consideration received Recourse Receivables Sales pursuant to this clause (c) after December 14, 2010 that is at that time outstanding, Section 6.05 during any fiscal quarter shall not to exceed the greater of (x) $150 million 150,000,000 and 5(y) 15% of Total Assets the amount equal to the aggregate amount outstanding of all accounts receivable of the Borrower and the Subsidiaries as of the last day of such fiscal quarter plus the aggregate amount of such accounts receivable sold during such quarter in Non-Recourse Receivables Sales, and (vi) sell, lease or otherwise dispose of property in any other transaction otherwise permitted under this Agreement, provided that the aggregate book value of all assets sold, leased or otherwise disposed of in transactions under this clause (vi) shall not when taken together at the time of each such sale, lease or other disposition exceed 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, in each greater of (a), (bx) $150,000,000 and (cy) above, be deemed to be cash for the purposes 15% of this provision or for purposes Consolidated Tangible Assets as of the second paragraph last day of this the most recent fiscal period in respect of which financial statements have been delivered pursuant to Section 4.10; and5.01 at such time.
Appears in 1 contract
