Asset Sales. (a) Bidco shall not, and shall not permit any of its Restricted Subsidiaries to, consummate an Asset Sale, unless: (i) Bidco 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 at the time of contractually agreeing to such Asset Sale) of the assets sold or otherwise disposed of; and (ii) except in the case of a Permitted Asset Swap, if the property or assets sold or otherwise disposed of have a Fair Market Value in excess of the greater of $375,000,000 and 50% of Consolidated EBITDA for the most recently ended Test Period at the time of such disposition, calculated on a Pro Forma Basis, at least 75% of the consideration therefor received by Bidco or such Restricted Subsidiary, as the case may be, is in the form of cash or Cash Equivalents; provided that the amount of: (A) any liabilities, contingent or otherwise, of Bidco or such Restricted Subsidiary, other than liabilities that are by their terms subordinated to the Secured Obligations or that are owed to Bidco or a Restricted Subsidiary that (x) are assumed by the transferee of any such assets (or a third party in connection with such transfer) or (y) are otherwise cancelled or terminated in connection with the transaction with such transferee (other than intercompany debt owed to Bidco or its Restricted Subsidiaries) and, in each case, for which Bidco and all of its Restricted Subsidiaries have been validly released; (B) any securities, notes or other obligations or assets received by Bidco or such Restricted Subsidiary from such transferee that are converted by Bidco or such Restricted Subsidiary into cash or Cash Equivalents (to the extent of the cash or Cash Equivalents received) within 180 days following the closing of such Asset Sale; (C) Indebtedness of any Restricted Subsidiary that ceases to be a Restricted Subsidiary as a result of such Asset Sale (other than intercompany debt owed to Bidco or any Restricted Subsidiary), to the extent that Bidco and each other Restricted Subsidiary are released from any guarantee of payment of the principal amount of such Indebtedness in connection with such Asset Sale in accordance with the terms of this Agreement, (D) consideration consisting of Indebtedness of a Borrower or a Guarantor (other than intercompany debt owed to Bidco or any Restricted Subsidiary and other than Subordinated Indebtedness) received after the Effective Date from Persons who are not Bidco, Holdings or any Restricted Subsidiary; (E) any Designated Non-cash Consideration received by Bidco or such Restricted Subsidiary in such Asset Sale having an aggregate Fair Market Value taken together with all other Designated Non-cash Consideration received pursuant to this clause (E) that is at that time outstanding, not to exceed the greater of $225,000,000 and 30% of Consolidated EBITDA for the most recently ended Test Period at the time of the receipt of such Designated Non-cash Consideration, calculated on a Pro Forma Basis (with the Fair Market Value of each such item of Designated Non-cash Consideration being measured pursuant to this clause (E) at Bidco’s option, either at the time of contractually agreeing to such Asset Sale or at the time received and, in either case, without giving effect to subsequent changes in value); and (F) any Investment, Capital Stock, assets, property or capital or other expenditure of the kind referred to in Section 6.04(b)(ii) shall be deemed to be Cash Equivalents for purposes of this provision and for no other purpose. (b) Within the Reinvestment Period after Bidco’s or any Restricted Subsidiary’s receipt of the Net Proceeds of any Asset Sale, Bidco or such Restricted Subsidiary shall apply an amount equal to the Net Proceeds from such Asset Sale, (i) (A) to prepay Loans or Indebtedness in accordance with Section 2.10(c) or (B) to the extent not required to prepay Loans pursuant to Section 2.10(c), to be retained by Bidco and/or Restricted Subsidiaries; or (ii) to make investments in Bidco and its Subsidiaries; provided that Bidco and the Restricted Subsidiaries will be deemed to have complied with this clause (ii) if and to the extent that, within the Reinvestment Period after the Asset Sale that generated the Net Proceeds, Bidco or such Restricted Subsidiary has entered into and not abandoned or rejected a binding agreement or letter of intent to consummate any such investment described in this clause (ii) 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 such commitment is later cancelled or terminated for any reason before the Net Proceeds are applied in connection therewith, Bidco or such Restricted Subsidiary enters into another Acceptable Commitment (a “Second Commitment”) within 180 days of such cancellation or termination; provided that if any Second Commitment is later cancelled or terminated for any reason before such Net Proceeds are applied, then Bidco or such Restricted Subsidiary shall prepay the Loans in accordance with Section 2.10(c). (c) 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 the Revolving Facility or any other revolving credit facility or otherwise use such Net Proceeds in any manner not prohibited by this Agreement. Bidco or any Restricted Subsidiary, as the case may be, may elect to invest in Bidco and its Subsidiaries prior to receiving the Net Proceeds attributable to any given Asset Sale (provided that such investment shall be made no earlier than execution of a definitive agreement for the relevant Asset Sale) and deem the amount so invested to be applied pursuant to and in accordance with clause (b)(ii) above with respect to such Asset Sale.
Appears in 4 contracts
Samples: Credit Agreement (Viasat Inc), Credit Agreement (Viasat Inc), Credit Agreement (Viasat Inc)
Asset Sales. (a) Bidco The Company shall not, and shall not permit any of its Restricted Subsidiaries to, consummate an Asset Sale, unless:
Sale unless (i) Bidco the Company or such the applicable Restricted Subsidiary, as the case may be, receives consideration at the time of such Asset Sale at least equal to the Fair Market Value (as determined at the time of contractually agreeing to such Asset Sale) fair market value of the assets sold or otherwise disposed ofof (as determined in good faith by the Company); and
(ii) except in the case of a Permitted Asset Swap, if the property or assets sold or otherwise disposed of have a Fair Market Value in excess of the greater of $375,000,000 and 50% of Consolidated EBITDA for the most recently ended Test Period at the time of such disposition, calculated on a Pro Forma Basis, at least 75% of the consideration therefor received by Bidco the Company or such the Restricted Subsidiary, as the case may be, is from such Asset Sale shall be in the form of cash or Cash Equivalents; provided that the amount of:
(Aa) any liabilities, contingent or otherwise, of Bidco 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 Secured Obligations or Notes) that are owed to Bidco or a Restricted Subsidiary that (x) are assumed by the transferee of any such assets assets; (or a third party in connection with such transfer) or (y) are otherwise cancelled or terminated in connection with the transaction with such transferee (other than intercompany debt owed to Bidco or its Restricted Subsidiaries) and, in each case, for which Bidco and all of its Restricted Subsidiaries have been validly released;
(Bb) any securities, notes or other obligations or assets received by Bidco the Company or any such Restricted Subsidiary from such transferee that are converted by Bidco the Company or such Restricted Subsidiary into cash or Cash Equivalents within 180 days of the receipt thereof (to the extent of the cash or Cash Equivalents received) within 180 days following the closing of such Asset Sale;
); and (C) Indebtedness of any Restricted Subsidiary that ceases to be a Restricted Subsidiary as a result of such Asset Sale (other than intercompany debt owed to Bidco or any Restricted Subsidiary), to the extent that Bidco and each other Restricted Subsidiary are released from any guarantee of payment of the principal amount of such Indebtedness in connection with such Asset Sale in accordance with the terms of this Agreement,
(D) consideration consisting of Indebtedness of a Borrower or a Guarantor (other than intercompany debt owed to Bidco or any Restricted Subsidiary and other than Subordinated Indebtedness) received after the Effective Date from Persons who are not Bidco, Holdings or any Restricted Subsidiary;
(Ec) any Designated Non-cash Consideration received by Bidco the Company or such any of its Restricted Subsidiary Subsidiaries in such Asset Sale having an aggregate Fair Market Value fair market value, taken together with all other Designated Non-cash Consideration received pursuant to this clause (Ec) after December 14, 2010 that is at that time outstanding, not to exceed the greater of $225,000,000 150 million and 305% of Consolidated EBITDA for the most recently ended Test Period Total Assets at the time of the receipt of such Designated Non-cash Consideration, calculated on a Pro Forma Basis Consideration (with the Fair Market Value fair market value of each such item of Designated Non-cash Consideration being measured pursuant to this clause (E) at Bidco’s option, either at the time of contractually agreeing to such Asset Sale or at the time received and, in either case, and without giving effect to subsequent changes in value); and
, shall, in each of (Fa), (b) any Investmentand (c) above, Capital Stock, assets, property or capital or other expenditure of the kind referred to in Section 6.04(b)(ii) shall be deemed to be Cash Equivalents cash for the purposes of this provision and or for no other purpose.
(b) Within the Reinvestment Period after Bidco’s or any Restricted Subsidiary’s receipt purposes of the Net Proceeds second paragraph of any Asset Sale, Bidco or such Restricted Subsidiary shall apply an amount equal to the Net Proceeds from such Asset Sale,
(i) (A) to prepay Loans or Indebtedness in accordance with this Section 2.10(c) or (B) to the extent not required to prepay Loans pursuant to Section 2.10(c), to be retained by Bidco and/or Restricted Subsidiaries4.10; or
(ii) to make investments in Bidco and its Subsidiaries; provided that Bidco and the Restricted Subsidiaries will be deemed to have complied with this clause (ii) if and to the extent that, within the Reinvestment Period after the Asset Sale that generated the Net Proceeds, Bidco or such Restricted Subsidiary has entered into and not abandoned or rejected a binding agreement or letter of intent to consummate any such investment described in this clause (ii) 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 such commitment is later cancelled or terminated for any reason before the Net Proceeds are applied in connection therewith, Bidco or such Restricted Subsidiary enters into another Acceptable Commitment (a “Second Commitment”) within 180 days of such cancellation or termination; provided that if any Second Commitment is later cancelled or terminated for any reason before such Net Proceeds are applied, then Bidco or such Restricted Subsidiary shall prepay the Loans in accordance with Section 2.10(c).
(c) 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 the Revolving Facility or any other revolving credit facility or otherwise use such Net Proceeds in any manner not prohibited by this Agreement. Bidco or any Restricted Subsidiary, as the case may be, may elect to invest in Bidco and its Subsidiaries prior to receiving the Net Proceeds attributable to any given Asset Sale (provided that such investment shall be made no earlier than execution of a definitive agreement for the relevant Asset Sale) and deem the amount so invested to be applied pursuant to and in accordance with clause (b)(ii) above with respect to such Asset Sale.
Appears in 4 contracts
Samples: Indenture (TransDigm Group INC), Indenture (TransDigm Group INC), Indenture (TransDigm Group INC)
Asset Sales. (a) Bidco 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:
(i1) Bidco Holdings III 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 at the time of contractually agreeing to such Asset Sale) fair market value of the assets sold or otherwise disposed of; and
(ii2) except in the case of a Permitted Asset Swap, if the property or assets sold or otherwise disposed of have a Fair Market Value in excess of the greater of $375,000,000 and 50% of Consolidated EBITDA for the most recently ended Test Period at the time of such disposition, calculated on a Pro Forma Basis, at least 75% of the consideration therefor received by Bidco Holdings III or such Restricted Subsidiary, as the case may be, is in the form of cash or Cash Equivalents; provided that the amount of:
(A) any liabilities, contingent liabilities (as shown on Holdings III’s or otherwise, such Restricted Subsidiary’s most recent balance sheet or in the footnotes thereto) of Bidco Holdings III or such Restricted Subsidiary, other than liabilities that are by their terms subordinated to the Secured Obligations or Notes, that are owed to Bidco or a Restricted Subsidiary that (x) are assumed by the transferee of any such assets (or a third party in connection with such transfer) or (y) are otherwise cancelled or terminated in connection with the transaction with such transferee (other than intercompany debt owed to Bidco or its Restricted Subsidiaries) and, in each case, and for which Bidco Holdings III and all of its Restricted Subsidiaries have been validly released;released by all creditors in writing,
(B) any securities, notes or other obligations or assets securities received by Bidco Holdings III or such Restricted Subsidiary from such transferee that are converted by Bidco Holdings III or such Restricted Subsidiary into cash or Cash Equivalents (to the extent of the cash or Cash Equivalents received) within 180 days following the closing of such Asset Sale;, and
(C) Indebtedness of any Restricted Subsidiary that ceases to be a Restricted Subsidiary as a result of such Asset Sale (other than intercompany debt owed to Bidco or any Restricted Subsidiary), to the extent that Bidco and each other Restricted Subsidiary are released from any guarantee of payment of the principal amount of such Indebtedness in connection with such Asset Sale in accordance with the terms of this Agreement,
(D) consideration consisting of Indebtedness of a Borrower or a Guarantor (other than intercompany debt owed to Bidco or any Restricted Subsidiary and other than Subordinated Indebtedness) received after the Effective Date from Persons who are not Bidco, Holdings or any Restricted Subsidiary;
(E) any Designated Non-cash Consideration received by Bidco Holdings III or such Restricted Subsidiary in such Asset Sale having an aggregate Fair Market Value fair market value, taken together with all other Designated Non-cash Consideration received pursuant to this clause (Ec) that is at that time outstanding, not to exceed the greater of $225,000,000 and 302.5% of Consolidated EBITDA for the most recently ended Test Period Total Assets at the time of the receipt of such Designated Non-cash Consideration, calculated on a Pro Forma Basis (with the Fair Market Value fair market value of each such item of Designated Non-cash Consideration being measured pursuant to this clause (E) at Bidco’s option, either at the time of contractually agreeing to such Asset Sale or at the time received and, in either case, and without giving effect to subsequent changes in value); and
(F) any Investment, Capital Stock, assets, property or capital or other expenditure of the kind referred to in Section 6.04(b)(ii) shall be deemed to be Cash Equivalents cash for purposes of this provision and for no other purpose.
(b) Within 450 days after the Reinvestment Period after Bidco’s or any Restricted Subsidiary’s receipt of the any Net Proceeds of any Asset Sale, Bidco Holdings III or such Restricted Subsidiary shall Subsidiary, at its option, may apply an amount equal to the Net Proceeds from such Asset Sale,
(i1) to permanently reduce:
(A) First Lien Obligations (including Obligations under the Senior Credit Facilities and the Existing Secured Notes), and to prepay Loans or Indebtedness in accordance correspondingly reduce commitments with Section 2.10(c) or respect thereto;
(B) Obligations under Senior Indebtedness that is secured by a Lien, which Lien is permitted by this Indenture, and to the extent not required to prepay Loans pursuant to Section 2.10(c), to be retained by Bidco and/or Restricted Subsidiariescorrespondingly reduce commitments with respect thereto; or
(iiC) Indebtedness of a Restricted Subsidiary that is not a Guarantor, other than Indebtedness owed to Holdings III or another Restricted Subsidiary;
(2) to make investments (a) an Investment in Bidco 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 Bidco and the Restricted Subsidiaries will be deemed to have complied with this clause (ii) if and to the extent that, within in the Reinvestment Period after the Asset Sale that generated case of clauses (2) and (3) above, a binding commitment shall be treated as a permitted application of the Net Proceeds, Bidco Proceeds from the date of such commitment so long as Holdings III or such other Restricted Subsidiary has entered enters into and not abandoned or rejected a binding agreement or letter of intent to consummate any such investment described in this clause (ii) 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 such commitment Acceptable Commitment is later cancelled or terminated for any reason before the Net Proceeds are applied in connection therewith, Bidco 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 Bidco or such Restricted Subsidiary Net Proceeds shall prepay the Loans in accordance with Section 2.10(c)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 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 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 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 covenantSection 4.10, the holder of such Net Proceeds may apply such Net Proceeds temporarily to reduce Indebtedness outstanding under the Revolving Facility or any other a revolving credit facility or otherwise use invest such Net Proceeds in any manner not prohibited by this Agreement. Bidco 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 any Restricted Subsidiary, as regulations are applicable in connection with the case may be, may elect repurchase of the Notes pursuant to invest in Bidco and its Subsidiaries prior to receiving the Net Proceeds attributable to any given an Asset Sale (provided Offer. To the extent that such investment 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 made no earlier than execution of a definitive agreement for the relevant Asset Sale) and deem the amount so invested deemed to be applied pursuant to and have breached its obligations described in accordance with clause (b)(ii) above with respect to such Asset Salethis 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. (a) Bidco 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:
(i1) Bidco the Company or such Restricted Subsidiary, as the case may be, receives consideration at the time of such Asset Sale at least equal to the Fair Market Value (as determined at the time of contractually agreeing to such Asset Sale) fair market value of the assets sold or otherwise disposed of; and
(ii2) except in the case of a Permitted Asset Swap, if the property or assets sold or otherwise disposed of have a Fair Market Value in excess of the greater of $375,000,000 and 50% of Consolidated EBITDA for the most recently ended Test Period at the time of such disposition, calculated on a Pro Forma Basis, at least 75% of the consideration therefor received by Bidco the Company or such Restricted Subsidiary, as the case may be, is in the form of cash or Cash Equivalents; provided that the amount of:
(A) any liabilities, contingent liabilities (as shown on the Company’s or otherwise, such Restricted Subsidiary’s most recent balance sheet or in the footnotes thereto) of Bidco the Company or such Restricted Subsidiary, other than liabilities that are by their terms subordinated to the Secured Obligations or Notes, that are owed to Bidco or a Restricted Subsidiary that (x) are assumed by the transferee of any such assets (or a third party in connection with such transfer) or (y) are otherwise cancelled or terminated in connection with the transaction with such transferee (other than intercompany debt owed to Bidco or its Restricted Subsidiaries) and, in each case, and for which Bidco the Company and all of its Restricted Subsidiaries have been validly released;released by all creditors in writing,
(B) any securities, notes or other obligations or assets securities received by Bidco the Company or such Restricted Subsidiary from such transferee that are converted by Bidco the Company or such Restricted Subsidiary into cash or Cash Equivalents (to the extent of the cash or Cash Equivalents received) within 180 days following the closing of such Asset Sale;, and
(C) Indebtedness of any Restricted Subsidiary that ceases to be a Restricted Subsidiary as a result of such Asset Sale (other than intercompany debt owed to Bidco or any Restricted Subsidiary), to the extent that Bidco and each other Restricted Subsidiary are released from any guarantee of payment of the principal amount of such Indebtedness in connection with such Asset Sale in accordance with the terms of this Agreement,
(D) consideration consisting of Indebtedness of a Borrower or a Guarantor (other than intercompany debt owed to Bidco or any Restricted Subsidiary and other than Subordinated Indebtedness) received after the Effective Date from Persons who are not Bidco, Holdings or any Restricted Subsidiary;
(E) any Designated Non-cash Consideration received by Bidco the Company or such Restricted Subsidiary in such Asset Sale having an aggregate Fair Market Value fair market value, taken together with all other Designated Non-cash Consideration received pursuant to this clause (Ec) that is at that time outstanding, not to exceed the greater of $225,000,000 and 302.5% of Consolidated EBITDA for the most recently ended Test Period Total Assets at the time of the receipt of such Designated Non-cash Consideration, calculated on a Pro Forma Basis (with the Fair Market Value fair market value of each such item of Designated Non-cash Consideration being measured pursuant to this clause (E) at Bidco’s option, either at the time of contractually agreeing to such Asset Sale or at the time received and, in either case, and without giving effect to subsequent changes in value); and
(F) any Investment, Capital Stock, assets, property or capital or other expenditure of the kind referred to in Section 6.04(b)(ii) shall be deemed to be Cash Equivalents cash for purposes of this provision and for no other purpose.
(b) Within 450 days after the Reinvestment Period after Bidco’s or any Restricted Subsidiary’s receipt of the any Net Proceeds of any Asset Sale, Bidco the Company or such Restricted Subsidiary shall Subsidiary, at its option, may apply an amount equal to the Net Proceeds from such Asset Sale,
(i1) to permanently reduce:
(A) First Lien Obligations (including Obligations under the Senior Credit Facilities and the Existing Secured Notes), and to prepay Loans or Indebtedness in accordance correspondingly reduce commitments with Section 2.10(c) or respect thereto;
(B) Obligations under Senior Indebtedness that is secured by a Lien, which Lien is permitted by this Indenture, and to the extent not required to prepay Loans pursuant to Section 2.10(c), to be retained by Bidco and/or Restricted Subsidiariescorrespondingly reduce commitments with respect thereto; or
(iiC) Indebtedness of a Restricted Subsidiary that is not a Guarantor, other than Indebtedness owed to the Company or another Restricted Subsidiary;
(2) to make investments (a) an Investment in Bidco 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 Bidco and the Restricted Subsidiaries will be deemed to have complied with this clause (ii) if and to the extent that, within in the Reinvestment Period after the Asset Sale that generated case of clauses (2) and (3) above, a binding commitment shall be treated as a permitted application of the Net Proceeds, Bidco Proceeds from the date of such commitment so long as the Company or such other Restricted Subsidiary has entered enters into and not abandoned or rejected a binding agreement or letter of intent to consummate any such investment described in this clause (ii) 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 such commitment Acceptable Commitment is later cancelled or terminated for any reason before the Net Proceeds are applied in connection therewith, Bidco 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 Bidco or such Restricted Subsidiary Net Proceeds shall prepay the Loans in accordance with Section 2.10(c)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 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 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 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 covenantSection 4.10, the holder of such Net Proceeds may apply such Net Proceeds temporarily to reduce Indebtedness outstanding under the Revolving Facility or any other a revolving credit facility or otherwise use invest such Net Proceeds in any manner not prohibited by this Agreement. Bidco 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 any Restricted Subsidiary, as regulations are applicable in connection with the case may be, may elect repurchase of the Notes pursuant to invest in Bidco and its Subsidiaries prior to receiving the Net Proceeds attributable to any given an Asset Sale (provided Offer. To the extent that such investment 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 made no earlier than execution of a definitive agreement for the relevant Asset Sale) and deem the amount so invested deemed to be applied pursuant to and have breached its obligations described in accordance with clause (b)(ii) above with respect to such Asset Salethis 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. Convey, transfer, sell, lease or otherwise dispose of (awhether in one transaction or in a series of transactions) Bidco shall notall or any part of its assets (whether now owned or hereafter acquired), and shall or issue, sell, transfer or otherwise dispose of any Capital Stock of any Subsidiary (excluding any such conveyance, transfer, sale, lease or other disposition or series of related conveyances, transfers, sales, leases or other dispositions (u) having an aggregate Fair Market Value not permit in excess of $500,000, (x) to the extent constituting the issuance of Capital Stock of any Subsidiary of Rayonier to Rayonier or any of its Restricted Wholly Owned Subsidiaries, (y) to the extent constituting a casualty event with respect to which Rayonier or any of its Subsidiaries to, consummate an Asset Sale, unless:
(i) Bidco or such Restricted Subsidiary, as the case may be, receives consideration at the time of such Asset Sale has received cash payments from unaffiliated third party insurance providers at least equal to the Fair Market Value of the asset subject thereto, or (as determined z) to the extent constituting a condemnation event with respect to which Rayonier or any of its Subsidiaries has received cash payments or other property from governmental authorities or other Persons having condemnation power by law at least equal to the time Fair Market Value of contractually agreeing to such the asset subject thereto) (each an “Asset Sale”), other than:
(i) any Asset Sale by Rayonier to any of the assets sold its Wholly Owned Subsidiaries and any Asset Sale by any Subsidiary of Rayonier to Rayonier or otherwise disposed of; andany of its Wholly Owned Subsidiaries;
(ii) except any Asset Sale by any Borrower or any Subsidiary of Rayonier in the case Ordinary Course of a Permitted Asset Swap, if the property or assets sold or otherwise disposed of have a Fair Market Value in excess of the greater of $375,000,000 and 50% of Consolidated EBITDA for the most recently ended Test Period at the time of such disposition, calculated on a Pro Forma Basis, at least 75% of the consideration therefor received by Bidco or such Restricted Subsidiary, as the case may be, is in the form of cash or Cash Equivalents; provided that the amount of:
(A) any liabilities, contingent or otherwise, of Bidco or such Restricted Subsidiary, other than liabilities that are by their terms subordinated to the Secured Obligations or that are owed to Bidco or a Restricted Subsidiary that (x) are assumed by the transferee of any such assets (or a third party in connection with such transfer) or (y) are otherwise cancelled or terminated in connection with the transaction with such transferee (other than intercompany debt owed to Bidco or its Restricted Subsidiaries) and, in each case, for which Bidco and all of its Restricted Subsidiaries have been validly releasedBusiness;
(Biii) any securities, notes Asset Sale by Rayonier or other obligations or assets received by Bidco or such Restricted Subsidiary from such transferee that are converted by Bidco or such Restricted Subsidiary into cash or Cash Equivalents (any of its Subsidiaries to the extent of the cash or Cash Equivalents received) within 180 days following the closing of such Asset Sale;
(C) Indebtedness of any Restricted Subsidiary that ceases to be a Restricted Subsidiary as a result of such Asset Sale (other than intercompany debt owed to Bidco or any Restricted Subsidiary), to the extent that Bidco and each other Restricted Subsidiary are released from any guarantee of payment of the principal amount of such Indebtedness Rayonier Foundation in connection with such Asset Sale in accordance with the terms of this Agreement,
(D) consideration consisting of Indebtedness of a Borrower or a Guarantor (other than intercompany debt owed to Bidco or any Restricted Subsidiary and other than Subordinated Indebtedness) received after the Effective Date from Persons who are not Bidco, Holdings or any Restricted Subsidiary;
(E) any Designated Non-cash Consideration received by Bidco or such Restricted Subsidiary in such Asset Sale having an aggregate Fair Market Value taken together with of the assets subject to all other Designated Non-cash Consideration received pursuant to this clause (E) that is at that time outstanding, such Asset Sales not to exceed $10,000,000 in any calendar year; and
(iv) any Asset Sale by Rayonier or any of its Subsidiaries (other than any Asset Sale by any of ROC, TRS, RFR or Performance Fibers of all or substantially all of their respective assets) not otherwise permitted by this Section 5.03(d), so long as (A) the greater of $225,000,000 and 30% of Consolidated EBITDA consideration for the most recently ended Test Period each such Asset Sale is at the time of the receipt of such Designated Non-cash Consideration, calculated on a Pro Forma Basis (with least equal to the Fair Market Value of each such item the assets subject thereto, and (B) the Net Consideration of Designated Non-cash Consideration being measured all Asset Sales pursuant to this clause Section 5.03(d)(iv) shall not exceed (Ex) at Bidco’s option$1,000,000,000 in any fiscal year minus the Fair Market Value of all assets and proceeds subject to a permitted dissolution and/or liquidation, either at as applicable, pursuant to Section 5.03(c)(vi) in such fiscal year or (y) $1,500,000,000 in the time aggregate minus the aggregate Fair Market Value of contractually agreeing all assets and proceeds subject to any permitted dissolution and/or liquidation pursuant to Section 5.03(c)(vi) (collectively, the “Specified Asset Sale Aggregate Caps”); provided, further, that, with respect to each such Asset Sale or at giving rise to a Majority JV Calculation Event, only the time received and, in either case, without giving effect to subsequent changes in value); and
(F) any Investment, Capital Stock, assets, property or capital or other expenditure of the kind referred to in Section 6.04(b)(ii) shall be deemed to be Cash Equivalents for purposes of this provision and for no other purpose.
(b) Within the Reinvestment Period after Bidco’s or any Restricted Subsidiary’s receipt of the Net Proceeds of any Asset Sale, Bidco or such Restricted Subsidiary shall apply an amount equal to the Net Proceeds from such Asset Sale,
(i) (A) to prepay Loans or Indebtedness in accordance with Section 2.10(c) or (B) to the extent not required to prepay Loans pursuant to Section 2.10(c), to be retained by Bidco and/or Restricted Subsidiaries; or
(ii) to make investments in Bidco and its Subsidiaries; provided that Bidco and the Restricted Subsidiaries will be deemed to have complied with this clause (ii) if and to the extent that, within the Reinvestment Period after the Asset Sale that generated the Net Proceeds, Bidco or such Restricted Subsidiary has entered into and not abandoned or rejected a binding agreement or letter of intent to consummate any such investment described in this clause (ii) 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 such commitment is later cancelled or terminated for any reason before the Net Proceeds are applied in connection therewith, Bidco or such Restricted Subsidiary enters into another Acceptable Commitment (a “Second Commitment”) within 180 days of such cancellation or termination; provided that if any Second Commitment is later cancelled or terminated for any reason before such Net Proceeds are applied, then Bidco or such Restricted Subsidiary shall prepay the Loans in accordance with Section 2.10(c).
(c) 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 the Revolving Facility or any other revolving credit facility or otherwise use such Net Proceeds in any manner not prohibited by this Agreement. Bidco or any Restricted Subsidiary, as the case may be, may elect to invest in Bidco and its Subsidiaries prior to receiving the Net Proceeds attributable to any given Asset Sale (provided that such investment shall be made no earlier than execution of a definitive agreement for the relevant Asset Sale) and deem the amount so invested to be applied pursuant to and in accordance with clause (b)(ii) above Majority JV Shortfall Amount with respect to such Asset SaleSale shall count towards the Specified Asset Sale Aggregate Caps.
Appears in 3 contracts
Samples: Credit Agreement (Rayonier Inc), Five Year Revolving Credit Agreement (Rayonier Inc), First Amendment and Restatement Agreement (Rayonier Inc)
Asset Sales. (a) Bidco The Issuer shall not, and shall not permit any of its Restricted Subsidiaries to, consummate an Asset Sale, unless:
(i1) Bidco the Issuer or such Restricted Subsidiary, as the case may be, receives consideration at the time of such Asset Sale at least equal to the Fair Market Value fair market value (as determined at in good faith by the time of contractually agreeing to such Asset SaleIssuer) of the assets sold or otherwise disposed of; and
(ii2) except in the case of a Permitted Asset Swap, if the property or assets sold or otherwise disposed of have a Fair Market Value in excess of the greater of $375,000,000 and 50% of Consolidated EBITDA for the most recently ended Test Period at the time of such disposition, calculated on a Pro Forma Basis, at least 75% of the consideration therefor received by Bidco the Issuer or such Restricted Subsidiary, as the case may be, is in the form of cash or Cash Equivalents; provided that the amount of:
(A) any liabilities, contingent liabilities (as shown on the Issuer’s or otherwise, such Restricted Subsidiary’s most recent balance sheet or in the footnotes thereto) of Bidco the Issuer or such Restricted Subsidiary, other than liabilities that are by their terms subordinated to the Secured Obligations Notes (or Guarantees) or that are owed to Bidco the Issuer or a Restricted Subsidiary Subsidiary, that (x) are assumed by the transferee of any such assets (or a third party in connection with such transfer) or (y) are otherwise cancelled or terminated in connection with the transaction with such transferee (other than intercompany debt owed to Bidco or its Restricted Subsidiaries) and, in each case, and for which Bidco the Issuer and all of its Restricted Subsidiaries have been validly released;released by all creditors in writing,
(B) any securities, notes or other obligations or assets received by Bidco the Issuer or such Restricted Subsidiary from such transferee that are converted by Bidco the Issuer or such Restricted Subsidiary into cash or Cash Equivalents (to the extent of the cash or Cash Equivalents received) within 180 days following the closing of such Asset Sale;, and
(C) Indebtedness of any Restricted Subsidiary that ceases to be a Restricted Subsidiary as a result of such Asset Sale (other than intercompany debt owed to Bidco or any Restricted Subsidiary), to the extent that Bidco and each other Restricted Subsidiary are released from any guarantee of payment of the principal amount of such Indebtedness in connection with such Asset Sale in accordance with the terms of this Agreement,
(D) consideration consisting of Indebtedness of a Borrower or a Guarantor (other than intercompany debt owed to Bidco or any Restricted Subsidiary and other than Subordinated Indebtedness) received after the Effective Date from Persons who are not Bidco, Holdings or any Restricted Subsidiary;
(E) any Designated Non-cash Consideration received by Bidco the Issuer or such Restricted Subsidiary in such Asset Sale having an aggregate Fair Market Value fair market value, taken together with all other Designated Non-cash Consideration received pursuant to this clause (Ec) that is at that time outstanding, not to exceed the greater of $225,000,000 and 30% of Consolidated EBITDA for the most recently ended Test Period 300,000,000 at the time of the receipt of such Designated Non-cash Consideration, calculated on a Pro Forma Basis (with the Fair Market Value fair market value of each such item of Designated Non-cash Consideration being measured pursuant to this clause (E) at Bidco’s option, either at the time of contractually agreeing to such Asset Sale or at the time received and, in either case, and without giving effect to subsequent changes in value); and
(F) any Investment, Capital Stock, assets, property or capital or other expenditure of the kind referred to in Section 6.04(b)(ii) value shall be deemed to be Cash Equivalents 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 Reinvestment Period after Bidco’s or any Restricted Subsidiary’s receipt of the any Net Proceeds of any Asset SaleSale by the Issuer or any Restricted Subsidiary, Bidco the Issuer or such Restricted Subsidiary shall Subsidiary, at its option, may apply an amount equal to the Net Proceeds from such Asset Sale,
(i1) 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 prepay Loans correspondingly reduce commitments with respect thereto);
(B) until the ABL Date, Obligations 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 Indebtedness in accordance with Section 2.10(cabove 100% of the principal amount thereof) or (B) to the extent not required to prepay Loans pursuant to Section 2.10(c), to be retained by Bidco and/or Restricted Subsidiaries; or
(ii) any other First Priority Lien Obligations of the Issuer or a Restricted Guarantor (and to make investments in Bidco and its Subsidiaries; provided that Bidco and the Restricted Subsidiaries will be deemed to have complied correspondingly reduce commitments with this clause (iirespect thereto) if and to the extent thatrequired 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, within 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 Reinvestment Period after Net Proceeds of the Asset Sale that generated the Net Proceeds, Bidco or are with respect to assets owned by such Restricted Subsidiary has entered into that is not a Guarantor and not abandoned 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 rejected 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 (d) 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 agreement commitment shall be treated as a permitted application of the Net Proceeds from the date of such commitment so long as the Issuer or letter of intent to consummate any such investment described in this clause (ii) 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 of following such commitment (an “Acceptable Commitment”) andcommitment; provided further, in the event any however, that if such commitment is later cancelled or terminated for any reason before after the Net Proceeds are applied in connection therewith, Bidco or such Restricted Subsidiary enters into another Acceptable Commitment (a “Second Commitment”) within 180 days later of such cancellation 18 month or termination; provided that if any Second Commitment is later cancelled or terminated 180 day period for any reason before such Net Proceeds are applied, then Bidco 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 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 Indenture, with a copy to the Trustee or otherwise in accordance with the procedures of DTC. The Issuer, in its sole discretion, may satisfy the foregoing obligations with respect to any Net Proceeds from an Asset Sale by making an Asset Sale Offer with respect to such Net Proceeds prior to the expiration of the relevant 18 month period (or such Restricted Subsidiary 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 prepay select the Loans 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 2.10(c)3.09 hereof. Upon completion of any such Asset Sale Offer, the amount of Excess Proceeds shall be reset at zero.
(cd) Pending the final application of any Net Proceeds pursuant to this covenantSection 4.10, the holder of such Net Proceeds may apply such Net Proceeds temporarily to reduce Indebtedness outstanding under the Revolving Facility or any other a revolving credit facility facility, including under any Senior Credit Facilities, or otherwise use invest or apply such Net Proceeds in any manner not prohibited by this Agreement. Bidco 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 any Restricted Subsidiary, as regulations are applicable in connection with the case may be, may elect repurchase of the Notes pursuant to invest in Bidco and its Subsidiaries prior to receiving the Net Proceeds attributable to any given an Asset Sale (provided Offer. To the extent that such investment 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 made no earlier than execution of a definitive agreement for the relevant Asset Sale) and deem the amount so invested deemed to be applied pursuant to and have breached its obligations described in accordance with clause (b)(ii) above with respect to such Asset Salethis 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) Bidco 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:
(i1) Bidco the Company or such Restricted Subsidiary, as the case may be, receives consideration at the time of such Asset Sale at least equal to the Fair Market Value (as determined at the time of contractually agreeing to such Asset Sale) fair market value of the assets sold or otherwise disposed of; and
(ii2) except in the case of a Permitted Asset Swap, if the property or assets sold or otherwise disposed of have a Fair Market Value in excess of the greater of $375,000,000 and 50% of Consolidated EBITDA for the most recently ended Test Period at the time of such disposition, calculated on a Pro Forma Basis, at least 75% of the consideration therefor received by Bidco the Company or such Restricted Subsidiary, as the case may be, is in the form of cash or Cash Equivalents; provided that the amount of:
(A) any liabilities, contingent liabilities (as shown on the Company’s or otherwise, such Restricted Subsidiary’s most recent balance sheet or in the footnotes thereto) of Bidco the Company or such Restricted Subsidiary, other than liabilities that are by their terms subordinated to the Secured Obligations or Notes, that are owed to Bidco or a Restricted Subsidiary that (x) are assumed by the transferee of any such assets (or a third party in connection with such transfer) or (y) are otherwise cancelled or terminated in connection with the transaction with such transferee (other than intercompany debt owed to Bidco or its Restricted Subsidiaries) and, in each case, and for which Bidco the Company and all of its Restricted Subsidiaries have been validly released;released by all creditors in writing,
(B) any securities, notes or other obligations or assets securities received by Bidco the Company or such Restricted Subsidiary from such transferee that are converted by Bidco the Company or such Restricted Subsidiary into cash or Cash Equivalents (to the extent of the cash or Cash Equivalents received) within 180 days following the closing of such Asset Sale;, and
(C) Indebtedness of any Restricted Subsidiary that ceases to be a Restricted Subsidiary as a result of such Asset Sale (other than intercompany debt owed to Bidco or any Restricted Subsidiary), to the extent that Bidco and each other Restricted Subsidiary are released from any guarantee of payment of the principal amount of such Indebtedness in connection with such Asset Sale in accordance with the terms of this Agreement,
(D) consideration consisting of Indebtedness of a Borrower or a Guarantor (other than intercompany debt owed to Bidco or any Restricted Subsidiary and other than Subordinated Indebtedness) received after the Effective Date from Persons who are not Bidco, Holdings or any Restricted Subsidiary;
(E) any Designated Non-cash Consideration received by Bidco the Company or such Restricted Subsidiary in such Asset Sale having an aggregate Fair Market Value fair market value, taken together with all other Designated Non-cash Consideration received pursuant to this clause (Ec) that is at that time outstanding, not to exceed the greater of $225,000,000 and 302.5% of Consolidated EBITDA for the most recently ended Test Period Total Assets at the time of the receipt of such Designated Non-cash Consideration, calculated on a Pro Forma Basis (with the Fair Market Value fair market value of each such item of Designated Non-cash Consideration being measured pursuant to this clause (E) at Bidco’s option, either at the time of contractually agreeing to such Asset Sale or at the time received and, in either case, and without giving effect to subsequent changes in value); and
(F) any Investment, Capital Stock, assets, property or capital or other expenditure of the kind referred to in Section 6.04(b)(ii) shall be deemed to be Cash Equivalents cash for purposes of this provision and for no other purpose.
(b) Within 450 days after the Reinvestment Period after Bidco’s or any Restricted Subsidiary’s receipt of the any Net Proceeds of any Asset Sale, Bidco the Company or such Restricted Subsidiary shall Subsidiary, at its option, may apply an amount equal to the Net Proceeds from such Asset Sale,
(i1) to permanently reduce:
(A) First Lien Obligations (including Obligations under the Senior Credit Facilities and the Existing Secured Notes), and to prepay Loans or Indebtedness in accordance correspondingly reduce commitments with Section 2.10(c) or respect thereto;
(B) Obligations under Senior Indebtedness that is secured by a Lien, which Lien is permitted by this Indenture, and to the extent not required to prepay Loans pursuant to Section 2.10(c), to be retained by Bidco and/or Restricted Subsidiariescorrespondingly reduce commitments with respect thereto; or
(iiC) Indebtedness of a Restricted Subsidiary that is not a Guarantor, other than Indebtedness owed to the Company or another Restricted Subsidiary;
(2) to make investments (a) an Investment in Bidco 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 Bidco and the Restricted Subsidiaries will be deemed to have complied with this clause (ii) if and to the extent that, within in the Reinvestment Period after the Asset Sale that generated case of clauses (2) and (3) above, a binding commitment shall be treated as a permitted application of the Net Proceeds, Bidco Proceeds from the date of such commitment so long as the Company or such other Restricted Subsidiary has entered enters into and not abandoned or rejected a binding agreement or letter of intent to consummate any such investment described in this clause (ii) 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 such commitment Acceptable Commitment is later cancelled or terminated for any reason before the Net Proceeds are applied in connection therewith, Bidco 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 Bidco or such Restricted Subsidiary Net Proceeds shall prepay the Loans in accordance with Section 2.10(c)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 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 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 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 covenantSection 4.10, the holder of such Net Proceeds may apply such Net Proceeds temporarily to reduce Indebtedness outstanding under the Revolving Facility or any other a revolving credit facility or otherwise use invest such Net Proceeds in any manner not prohibited by this Agreement. Bidco 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 any Restricted Subsidiary, as regulations are applicable in connection with the case may be, may elect repurchase of the Notes pursuant to invest in Bidco and its Subsidiaries prior to receiving the Net Proceeds attributable to any given an Asset Sale (provided Offer. To the extent that such investment 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 made no earlier than execution of a definitive agreement for the relevant Asset Sale) and deem the amount so invested deemed to be applied pursuant to and have breached its obligations described in accordance with clause (b)(ii) above with respect to such Asset Salethis 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. (a1) Bidco 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:
(ia) Bidco the Company or such Restricted Subsidiary, as the case may be, receives consideration at the time of such Asset Sale at least equal to the Fair Market Value (as determined at the time of contractually agreeing to such Asset Sale) of the assets sold or otherwise disposed of; of (as determined by the Company’s Board of Directors (or a committee thereof) and evidenced by a Board Resolution), and
(iib) except in the case of a Permitted Asset Swap, if the property or assets sold or otherwise disposed of have a Fair Market Value in excess of the greater of $375,000,000 and 50% of Consolidated EBITDA for the most recently ended Test Period at the time of such disposition, calculated on a Pro Forma Basis, 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 therefor received by Bidco the Company or the Subsidiaries in cash or Cash Equivalents and (b) notes, securities or other similar obligations received by the Company or the Subsidiaries from such Restricted 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, is in the form of cash or Cash Equivalents; provided that the amount of:
(A) any liabilities, contingent or otherwise, of Bidco or such Restricted Subsidiary, other than liabilities that are by their terms subordinated to the Secured Obligations or that are owed to Bidco or a Restricted Subsidiary that (x) are assumed by the transferee of any such assets (or a third party in connection with such transfer) any Asset Sale is converted into or (y) are sold or otherwise cancelled or terminated in connection with the transaction with such transferee disposed of for cash (other than intercompany debt owed interest received with respect to Bidco any such non-cash consideration), then such conversion or its Restricted Subsidiaries) and, disposition shall be deemed to constitute an Asset Sale hereunder and the Net Cash Proceeds thereof shall be applied in each case, for which Bidco and all accordance with the provisions of its Restricted Subsidiaries have been validly released;this covenant.
(B4) The 75% limitation in Paragraph 6G(1)(b) will not apply to any securities, notes or other obligations or assets received by Bidco or such Restricted Subsidiary from such transferee that are converted by Bidco or such Restricted Subsidiary into cash or Cash Equivalents (to the extent of Asset Sale in which the cash or Cash Equivalents received) within 180 days following the closing of such Asset Sale;
(C) Indebtedness of any Restricted Subsidiary that ceases to be a Restricted Subsidiary as a result of such Asset Sale (other than intercompany debt owed to Bidco or any Restricted Subsidiary)received therefrom, to the extent that Bidco and each other Restricted Subsidiary are released from any guarantee of payment of the principal amount of such Indebtedness in connection with such Asset Sale determined in accordance with the terms of this Agreement,
(D) consideration consisting of Indebtedness of a Borrower second preceding paragraph, are equal to or a Guarantor (other greater than intercompany debt owed to Bidco or any Restricted Subsidiary the after-tax cash and other than Subordinated Indebtedness) received after the Effective Date from Persons who are not Bidco, Holdings or any Restricted Subsidiary;
(E) any Designated Non-cash Consideration received by Bidco or such Restricted Subsidiary in such Asset Sale having an aggregate Fair Market Value taken together with all other Designated Non-cash Consideration received pursuant to this clause (E) that is at that time outstanding, not to exceed the greater of $225,000,000 and 30% of Consolidated EBITDA for the most recently ended Test Period at the time of the receipt of such Designated Non-cash Consideration, calculated on a Pro Forma Basis (with the Fair Market Value of each such item of Designated Non-cash Consideration being measured pursuant to this clause (E) at Bidco’s option, either at the time of contractually agreeing to such Asset Sale or at the time received and, in either case, without giving effect to subsequent changes in value); and
(F) any Investment, Capital Stock, assets, property or capital or other expenditure of the kind referred to in Section 6.04(b)(ii) shall be deemed to be Cash Equivalents for purposes of this that would have been received therefrom had such provision and for no other purposeapplied.
(b5) Within the Reinvestment Period after Bidco’s or any Restricted Subsidiary’s receipt of the Net Proceeds of any Asset Sale, Bidco The Company or such Restricted Subsidiary shall apply an amount equal to the Net Proceeds from such Asset Sale,
(i) (A) to prepay Loans or Indebtedness in accordance with Section 2.10(c) or (B) to the extent not required to prepay Loans pursuant to Section 2.10(c), to be retained by Bidco and/or Restricted Subsidiaries; or
(ii) to make investments in Bidco and its Subsidiaries; provided that Bidco and the Restricted Subsidiaries will be deemed to have complied with this clause (ii) if and to the extent that, within the Reinvestment Period after the Asset Sale that generated the Net Proceeds, Bidco or such Restricted Subsidiary has entered into and not abandoned or rejected a binding agreement or letter of intent to consummate any such investment described in this clause (ii) 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 such commitment is later cancelled or terminated for any reason before the Net Proceeds are applied in connection therewith, Bidco or such Restricted Subsidiary enters into another Acceptable Commitment (a “Second Commitment”) within 180 days of such cancellation or termination; provided that if any Second Commitment is later cancelled or terminated for any reason before such Net Proceeds are applied, then Bidco or such Restricted Subsidiary shall prepay the Loans in accordance with Section 2.10(c).
(c) 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 the Revolving Facility or any other revolving credit facility or otherwise use such Net Proceeds in any manner not prohibited by this Agreement. Bidco or any Restricted Subsidiary, as the case may be, may elect apply an amount equal to invest in Bidco and its Subsidiaries prior to receiving the Net Cash Proceeds attributable to of any given Asset Sale within 365 days of receipt thereof to:
(provided that such a) repay Indebtedness; or
(b) make an investment shall be made no earlier than execution of a definitive agreement in or expenditures for the relevant Asset Sale) and deem the amount so invested properties or capital assets to be used in a Related Business or make an Investment in any Person engaged in a Related Business that, as a result of or in connection with such Investment, becomes a Subsidiary. During any period when any Subordinated Notes or Senior Discount Notes are outstanding, to the extent all or part of the Net Cash Proceeds of any Asset Sale are not applied pursuant to and within 365 days of such Asset Sale as described in accordance with clause (b)(ii1) above with respect to or (2) (such Asset SaleNet Cash Proceeds, the “Unutilized Net Cash Proceeds”), the Company shall apply such Unutilized Net Cash Proceeds as required by the Subordinated Note Indenture and the Senior Discount Note Indenture, as in effect on the Closing 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) Bidco The Borrower shall not, and shall not permit any of its Restricted Subsidiaries toSubsidiary to consummate, consummate directly or indirectly, an Asset Sale, unless:
(i1) Bidco the Borrower or such Restricted Subsidiary, as the case may be, receives consideration at the time of such Asset Sale at least equal to the Fair Market Value (as determined at the time of contractually agreeing to such Asset Sale) of the assets sold or otherwise disposed of; and
(ii2) except in the case of a Permitted Asset Swap, if the property or assets sold or otherwise disposed of have a Fair Market Value in excess of the greater of $375,000,000 and 50% of Consolidated EBITDA for the most recently ended Test Period at the time of such disposition, calculated on a Pro Forma Basis, 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 Bidco the Borrower or such Restricted Subsidiary, as the case may be, is in the form of cash cash, Cash Equivalents or Cash EquivalentsAdditional Assets, or any combination thereof; provided that the amount of:
(A) any liabilitiesliabilities (as reflected on the Borrower’s most recent consolidated balance sheet or in the footnotes thereto, contingent or otherwiseif incurred or accrued subsequent to the date of such balance sheet, such liabilities that would have been reflected on the Borrower’s consolidated balance sheet or in the footnotes thereto if such incurrence or accrual had taken place on or prior to the date of Bidco or such Restricted Subsidiarybalance sheet, as determined in good faith by the Borrower) of the Borrower, other than liabilities that are by their terms subordinated to the Secured Obligations or Loans, that are owed to Bidco or a Restricted Subsidiary that (x) are assumed by the transferee of any such assets (or a third party in connection with such transfer) or (y) are otherwise cancelled or terminated extinguished in connection with the transaction with transactions relating to such transferee (other than intercompany debt owed to Bidco or its Restricted SubsidiariesAsset Sale) and, in each case, and for which Bidco the Borrower and all of its such Restricted Subsidiaries have been validly released;released by all applicable creditors in writing,
(B) any securities, notes or other obligations or assets received by Bidco the Borrower or such Restricted Subsidiary from such transferee that are converted by Bidco the Borrower or such Restricted Subsidiary into cash or Cash Equivalents, or by their terms are required to be satisfied for cash or Cash Equivalents (to the extent of the cash or Cash Equivalents received) ), in each case, within 180 days following the closing of such Asset Sale;, and
(C) Indebtedness of any Restricted Subsidiary that ceases to be a Restricted Subsidiary as a result of such Asset Sale (other than intercompany debt owed to Bidco or any Restricted Subsidiary), to the extent that Bidco and each other Restricted Subsidiary are released from any guarantee of payment of the principal amount of such Indebtedness in connection with such Asset Sale in accordance with the terms of this Agreement,
(D) consideration consisting of Indebtedness of a Borrower or a Guarantor (other than intercompany debt owed to Bidco or any Restricted Subsidiary and other than Subordinated Indebtedness) received after the Effective Date from Persons who are not Bidco, Holdings or any Restricted Subsidiary;
(E) any Designated Non-cash Consideration received by Bidco the Borrower or such Restricted Subsidiary in such Asset Sale having an aggregate Fair Market Value Value, taken together with all other Designated Non-cash Consideration received pursuant to this clause (EC) that is at that time outstanding, not to exceed the greater of (x) $225,000,000 250.0 million and 30(y) 2.25% of Consolidated EBITDA for the most recently ended Test Period Total Assets at the time of the receipt of such Designated Non-cash Consideration, calculated on a Pro Forma Basis (with the Fair Market Value of each such item of Designated Non-cash Consideration being measured pursuant to this clause (E) at Bidco’s option, either at the time of contractually agreeing to such Asset Sale or at the time received and, in either case, and without giving effect to subsequent changes in value); and
(F) any Investment, Capital Stock, assets, property or capital or other expenditure of the kind referred to in Section 6.04(b)(ii) shall be deemed to be Cash Equivalents cash for purposes of this provision and for no other purpose.
(b) Within 450 days after the Reinvestment Period after BidcoBorrower’s or any Restricted Subsidiary’s receipt of the any Net Asset Sale Proceeds of any Asset Sale, Bidco the Borrower or such Restricted Subsidiary shall Subsidiary, at its option, may apply an amount equal to the Net Asset Sale Proceeds from such Asset Sale,
(i1) 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 prepay the Lien of the Loans with respect to the Collateral or Indebtedness (y) on an asset not constituting Collateral (in accordance the case of this clause (y), such permanent reduction shall only be permitted with Section 2.10(c) or 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 not required the Borrower or any Restricted Subsidiary reduces or makes an offer to prepay 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 pursuant to Section 2.10(c)at 100% of the principal amount thereof, to plus the amount of accrued but unpaid interest, if any, on the principal amount of the Loans that would otherwise be retained by Bidco and/or Restricted Subsidiariesprepaid; or
(iiC) 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 investments (a) an Investment in Bidco any one or more businesses, provided that such Investment in any business is in the form of the acquisition of Capital Stock and its Subsidiariesresults 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 Bidco and that, in the Restricted Subsidiaries will be deemed to have complied with this case of clause (ii2) if and to above, a binding commitment shall be treated as a permitted application of the extent that, within the Reinvestment Period after the Net Asset Sale that generated Proceeds from the Net Proceeds, Bidco date of such commitment so long as the Borrower or such other Restricted Subsidiary has entered enters into and not abandoned or rejected a binding agreement or letter of intent to consummate any such investment described in this clause (ii) 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 commitment 450-day period (an “Acceptable Commitment”) and, in the event any such commitment 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, Bidco the Borrower or such Restricted Subsidiary enters into another Acceptable Commitment (a “Second Commitment”) within 180 days of such cancellation or termination; provided provided, further, that if any Second Commitment is later cancelled or terminated for any reason before such Net Asset Sale Proceeds are appliedapplied or such Net Asset Sale Proceeds are not applied within such 180-day period, then Bidco 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 9.8(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 prepay 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; provided that such Asset Sale Offer shall be in accordance with Section 2.10(c)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.
(cd) Pending the final application of any Net Asset Sale Proceeds pursuant to this covenantSection 9.8, the holder of such Net Proceeds Borrower or the applicable Restricted Subsidiary may apply such Net Asset Sale Proceeds temporarily to reduce Indebtedness outstanding under the Revolving Facility or any other a revolving credit facility or otherwise use invest such Net Asset Sale Proceeds in any manner not prohibited by this Agreement. Bidco or any Restricted Subsidiary, as the case may be, may elect to invest in Bidco and its Subsidiaries prior to receiving the Net Proceeds attributable to any given Asset Sale (provided that such investment shall be made no earlier than execution of a definitive agreement for the relevant Asset Sale) and deem the amount so invested to be applied pursuant to and in accordance with clause (b)(ii) above with respect to such Asset Sale.
Appears in 2 contracts
Samples: Credit Agreement (Samson Resources Corp), Second Lien Term Loan Credit Agreement (Samson Holdings, Inc.)
Asset Sales. (a) Bidco shall The Company will not, and shall will not permit any of its Restricted Subsidiaries to, consummate an Asset Sale, Sale unless:
(i1) Bidco the Company (or such the Restricted Subsidiary, as the case may be, ) receives consideration at the time of such the Asset Sale at least equal to the Fair Market Value (as determined at the time of contractually agreeing to such Asset Sale) of the assets or Equity Interests issued or sold or otherwise disposed of; and
(ii2) except in the case of a Permitted Asset Swap, if the property or assets sold or otherwise disposed of have a Fair Market Value in excess of the greater of $375,000,000 and 50% of Consolidated EBITDA for the most recently ended Test Period at the time of such disposition, calculated on a Pro Forma Basis, at least 75% of the consideration therefor received in the Asset Sale by Bidco the Company or such Restricted Subsidiary, as the case may be, Subsidiary is in the form of cash or Cash Equivalents; provided that cash. For purposes of this provision, each of the amount offollowing shall be deemed to be cash:
(A) any liabilities, contingent or otherwiseas shown on the Company’s most recent consolidated balance sheet, of Bidco the Company or such any Restricted Subsidiary, Subsidiary (other than contingent liabilities and liabilities that are by their terms subordinated to the Secured Obligations Notes or any Note Guarantee) that are owed to Bidco or a Restricted Subsidiary that (x) are assumed by the transferee of any such assets (pursuant to a valid written assignment and assumption agreement that releases the Company or a third party in connection with such transfer) or (y) are otherwise cancelled or terminated in connection with the transaction with such transferee (other than intercompany debt owed to Bidco or its Restricted Subsidiaries) and, in each case, for which Bidco and all of its Restricted Subsidiaries have been validly releasedSubsidiary from further liability;
(B) any securities, notes or other obligations or assets received by Bidco the Company or any such Restricted Subsidiary from such transferee that are converted by Bidco the Company or such Restricted Subsidiary into cash or Cash Equivalents (within 90 days of the receipt thereof, to the extent of the cash or Cash Equivalents received) within 180 days following the closing of such Asset Salereceived in that conversion;
(C) Indebtedness of any Restricted Subsidiary that ceases to be a Restricted Subsidiary as a result of such Asset Sale (other than intercompany debt owed to Bidco stock or any Restricted Subsidiary), to the extent that Bidco and each other Restricted Subsidiary are released from any guarantee of payment assets of the principal amount kind referred to in clauses (2) or (4) of such Indebtedness in connection with such Asset Sale in accordance with the terms next paragraph of this Agreement,Section 4.10; and
(D) consideration consisting of Indebtedness of a Borrower or a Guarantor (other than intercompany debt owed to Bidco or any Restricted Subsidiary and other than Subordinated Indebtedness) received after the Effective Date from Persons who are not Bidco, Holdings or any Restricted Subsidiary;
(E) any Designated Non-cash Noncash Consideration received by Bidco the Company or such any of its Restricted Subsidiary Subsidiaries in such Asset Sale having an aggregate Fair Market Value Value, taken together with all other Designated Non-cash Noncash Consideration received pursuant to this clause (Ed) that is at that time then outstanding, not to exceed the greater of (i) $225,000,000 15.0 million and 30(ii) 2.5% of Consolidated EBITDA for the most recently ended Test Period 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 Noncash Consideration, calculated on a Pro Forma Basis (with the Fair Market Value of each such item of Designated Non-cash Noncash Consideration being measured pursuant to this clause (E) at Bidco’s option, either at the time of contractually agreeing to such Asset Sale or at the time received and, in either case, and without giving effect to subsequent changes in value); and
(F) any Investment, Capital Stock, assets, property or capital or other expenditure of the kind referred to in Section 6.04(b)(ii) shall be deemed to be Cash Equivalents for purposes of this provision and for no other purpose.
(b) . Within the Reinvestment Period after Bidco’s or any Restricted Subsidiary’s receipt of the Net Proceeds of any Asset Sale, Bidco or such Restricted Subsidiary shall apply an amount equal to the Net Proceeds from such Asset Sale,
(i) (A) to prepay Loans or Indebtedness in accordance with Section 2.10(c) or (B) to the extent not required to prepay Loans pursuant to Section 2.10(c), to be retained by Bidco and/or Restricted Subsidiaries; or
(ii) to make investments in Bidco and its Subsidiaries; provided that Bidco and the Restricted Subsidiaries will be deemed to have complied with this clause (ii) if and to the extent that, within the Reinvestment Period 365 days after the Asset Sale that generated the Net Proceeds, Bidco or such Restricted Subsidiary has entered into and not abandoned or rejected a binding agreement or letter of intent to consummate any such investment described in this clause (ii) 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 such commitment is later cancelled or terminated for any reason before the Net Proceeds are applied in connection therewith, Bidco or such Restricted Subsidiary enters into another Acceptable Commitment (a “Second Commitment”) within 180 days of such cancellation or termination; provided that if any Second Commitment is later cancelled or terminated for any reason before such Net Proceeds are applied, then Bidco or such Restricted Subsidiary shall prepay the Loans in accordance with Section 2.10(c).
(c) Pending the final application receipt of any Net Proceeds pursuant to this covenantfrom an Asset Sale, the holder of such Net Proceeds may apply such Net Proceeds temporarily to reduce Indebtedness outstanding under Company (or the Revolving Facility or any other revolving credit facility or otherwise use such Net Proceeds in any manner not prohibited by this Agreement. Bidco or any 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 a Permitted Business; and/or
(5) any combination of the foregoing. Pending the final application of any Net Proceeds, the Company may elect to temporarily reduce revolving credit borrowings or otherwise invest in Bidco and its Subsidiaries prior to receiving the Net Proceeds attributable to in any given manner that is not prohibited by this Indenture. Any Net Proceeds from Asset Sales that are not applied or invested as provided in the second paragraph of this Section 4.10 will constitute “Excess Proceeds.” When the aggregate amount of Excess Proceeds exceeds $15.0 million, within five business days thereof, the Company will make an Asset Sale (provided Offer to all Holders of Notes and all holders of other Indebtedness that such investment shall be made no earlier than execution is pari passu with the Notes containing provisions similar to those set forth in this Indenture with respect to offers to purchase or redeem with the proceeds of a definitive agreement for the relevant Asset Sale) and deem the amount so invested to be applied pursuant to and sales of assets in accordance with clause (b)(ii) above with respect 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 SaleSale 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, 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. (a) Bidco The Borrower shall not, and shall not permit any of its Restricted Subsidiaries to, consummate cause or make an Asset Sale, unless:
unless (ix) Bidco the Borrower or such any of its Restricted SubsidiarySubsidiaries, as the case may be, receives consideration at the time of such Asset Sale at least equal to the Fair Market Value (as determined at in good faith by the time of contractually agreeing to such Asset SaleBorrower) of the assets sold or otherwise disposed of; and
of and (iiy) except in the case of a Permitted Asset Swap, if the property or assets sold or otherwise disposed of have a Fair Market Value in excess of the greater of $375,000,000 and 50% of Consolidated EBITDA for the most recently ended Test Period at the time of such disposition, calculated on a Pro Forma Basis, at least 75% of the consideration therefor received by Bidco the Borrower or such Restricted Subsidiary, as the case may be, is in the form of cash or Cash Equivalents; provided that the amount of:
(Ai) any liabilities, contingent or otherwise, of Bidco liabilities (as shown on the Borrower’s or such Restricted Subsidiary, ’s most recent balance sheet or in the notes thereto) of the Borrower or any Restricted Subsidiary of the Borrower (other than liabilities that are by their terms subordinated to the Secured Obligations or Loans) that are owed to Bidco or a Restricted Subsidiary that (x) are assumed by the transferee of any such assets (or a third party in connection with such transfer) or (y) are otherwise cancelled or terminated in connection with the transaction with such transferee (other than intercompany debt owed to Bidco or its Restricted Subsidiaries) and, in each case, for which Bidco and all of its Restricted Subsidiaries have been validly released;assets,
(Bii) any securities, notes or other obligations or other securities or assets received by Bidco the Borrower or such Restricted Subsidiary of the Borrower from such transferee that are converted by Bidco the Borrower or such Restricted Subsidiary of the Borrower into cash or Cash Equivalents within 180 days of the receipt thereof (to the extent of the cash or Cash Equivalents received) within 180 days following the closing of such Asset Sale;), and
(C) Indebtedness of any Restricted Subsidiary that ceases to be a Restricted Subsidiary as a result of such Asset Sale (other than intercompany debt owed to Bidco or any Restricted Subsidiary), to the extent that Bidco and each other Restricted Subsidiary are released from any guarantee of payment of the principal amount of such Indebtedness in connection with such Asset Sale in accordance with the terms of this Agreement,
(D) consideration consisting of Indebtedness of a Borrower or a Guarantor (other than intercompany debt owed to Bidco or any Restricted Subsidiary and other than Subordinated Indebtedness) received after the Effective Date from Persons who are not Bidco, Holdings or any Restricted Subsidiary;
(Eiii) any Designated Non-cash Consideration received by Bidco the Borrower or such any of its Restricted Subsidiary Subsidiaries in such Asset Sale having an aggregate Fair Market Value Value, taken together with all other Designated Non-cash Consideration received pursuant to this clause (Eiii) that is at that time outstanding, not to exceed the greater of $225,000,000 and 306.25% of Consolidated EBITDA for Total Assets of the most recently ended Test Period Borrower at the time of the receipt of such Designated Non-cash Consideration, calculated on a Pro Forma Basis Consideration (with the Fair Market Value of each such item of Designated Non-cash Consideration being measured pursuant to this clause (E) at Bidco’s option, either at the time of contractually agreeing to such Asset Sale or at the time received and, in either case, and without giving effect to subsequent changes in value); and
(F) any Investment, Capital Stock, assets, property or capital or other expenditure of the kind referred to in Section 6.04(b)(ii) shall be deemed to be Cash Equivalents for the purposes of this provision and for no other purposeSection 10.4(a).
(b) Within 15 months after the Reinvestment Period after BidcoBorrower’s or any Restricted SubsidiarySubsidiary of the Borrower’s receipt of the Net Proceeds of any Asset SaleSale (or Event of Loss Proceeds), Bidco the Borrower or such Restricted Subsidiary shall of the Borrower may apply an amount equal to the Net Proceeds from such Asset Sale,Sale (together with any Event of Loss Proceeds), at its option:
(i) to permanently reduce Obligations under Secured Indebtedness or Pari Passu Indebtedness (A) to prepay 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 or Indebtedness are then prepayable or, if the Loans may not then be prepaid, by making an offer (in accordance with Section 2.10(cthe 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 (B) Indebtedness of a Restricted Subsidiary that is not a Guarantor, in each case other than Indebtedness owed to the extent not required to prepay Loans pursuant to Section 2.10(c), to be retained by Bidco and/or Restricted Subsidiaries; or
(ii) to make investments in Bidco and its Subsidiaries; provided that Bidco and Borrower or an Affiliate of the Restricted Subsidiaries will be deemed to have complied with this clause (ii) if and to the extent that, within the Reinvestment Period after the Asset Sale that generated the Net Proceeds, Bidco or such Restricted Subsidiary has entered into and not abandoned or rejected a binding agreement or letter of intent to consummate any such investment described in this clause (ii) 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 such commitment is later cancelled or terminated for any reason before the Net Proceeds are applied in connection therewith, Bidco or such Restricted Subsidiary enters into another Acceptable Commitment (a “Second Commitment”) within 180 days of such cancellation or terminationBorrower; provided that if an offer to purchase any Second Commitment Indebtedness of any of the Borrower or its Restricted Subsidiaries is later cancelled or terminated for any reason before such Net Proceeds are applied, then Bidco or such Restricted Subsidiary shall prepay the Loans made in accordance with Section 2.10(c).
(c) Pending the final application terms of any Net Proceeds pursuant to this covenantsuch Indebtedness, the holder of such Net Proceeds may apply such Net Proceeds temporarily obligation to permanently reduce Indebtedness outstanding under of the Revolving Facility Borrower or any other revolving credit facility or otherwise use such Net Proceeds in any manner not prohibited by this Agreement. Bidco or any a Restricted Subsidiary, as the case may be, may elect will be deemed to invest in Bidco be satisfied to the extent of the amount of the offer, whether or not accepted by the holders thereof, and its Subsidiaries prior to receiving the no Net Proceeds attributable in the amount of such offer will be deemed to exist following such offer,
(ii) to make an investment in any given 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 10.4(b) (it being understood that any portion of such investment Net Proceeds (or Event of Loss Proceeds) used to make an offer to prepay the Loans, as described in clause (i) above, shall be made no earlier than execution 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 definitive agreement for the relevant Asset Sale) and deem the amount so invested to be applied Mandatory Prepayment Offer pursuant to Section 5.2 and in accordance with clause (b)(ii) above with respect to this Section 10.4. Upon completion of any such Asset SaleExcess 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) Bidco The Company shall not, and shall not permit any of its Restricted Subsidiaries to, consummate an Asset Sale, Sale unless:
(i) Bidco the Company (or such the Restricted Subsidiary, as the case may be, ) receives consideration at the time of such Asset Sale at least equal to the Fair Market Value fair market value of the assets or Equity Interests issued or sold or otherwise disposed of (as such fair market value to be determined at in good faith by the time Company on the date of contractually agreeing to such Asset Sale) of the assets sold or otherwise disposed of; and);
(ii) except in the case of a Permitted Asset Swap, if the property or assets sold or otherwise disposed of have a Fair Market Value in excess of the greater of $375,000,000 and 50% of Consolidated EBITDA for the most recently ended Test Period at the time of such disposition, calculated on a Pro Forma Basis, at least 75% of the consideration therefor received in the Asset Sale by Bidco the Company or such Restricted Subsidiary, as the case may be, Subsidiary is in the form of cash or Cash Equivalents; provided that . For purposes of this clause (ii) only, each of the amount offollowing shall be deemed to be cash:
(A) the amount of any liabilities, contingent or otherwise, of Bidco as shown on the Company’s or such Restricted Subsidiary’s most recent balance sheet, of the Company or such Restricted Subsidiary (other than contingent liabilities and liabilities that are by their terms subordinated to the Secured Obligations Notes or any Subsidiary Guarantee) that are owed to Bidco or a Restricted Subsidiary that (x) are assumed by the transferee of any such assets (pursuant to a customary novation agreement or a third party in connection with by operation of law that releases the Company or such transfer) or (y) are otherwise cancelled or terminated in connection with the transaction with such transferee (other than intercompany debt owed to Bidco or its Restricted Subsidiaries) and, in each case, for which Bidco and all of its Restricted Subsidiaries have been validly releasedSubsidiary from further liability;
(B) any securities, notes or other obligations or assets received by Bidco the Company or such any Restricted Subsidiary from such transferee that are converted by Bidco the Company or such Restricted Subsidiary into cash or Cash Equivalents (within 180 days of the closing of the related Asset Sale, to the extent of the cash or Cash Equivalents received) within 180 days following the closing of such Asset Sale;received in that conversion; and
(C) Indebtedness of any Restricted Subsidiary that ceases to be a Restricted Subsidiary as a result of such Asset Sale (other than intercompany debt owed to Bidco or any Restricted Subsidiary), to the extent that Bidco and each other Restricted Subsidiary are released from any guarantee of payment of the principal amount of such Indebtedness in connection with such Asset Sale in accordance with the terms of this Agreement,
(D) consideration consisting of Indebtedness of a Borrower or a Guarantor (other than intercompany debt owed to Bidco or any Restricted Subsidiary and other than Subordinated Indebtedness) received after the Effective Date from Persons who are not Bidco, Holdings or any Restricted Subsidiary;
(E) any Designated Non-cash Consideration received by Bidco the Company or such Restricted Subsidiary in such Asset Sale having an aggregate Fair Market Value fair market value, taken together with all other Designated Non-cash Consideration received pursuant to this clause (Ec) that is at that time outstanding, not to exceed the greater of $225,000,000 and 305.0% of Consolidated EBITDA for the most recently ended Test Period Net Tangible Assets at the time of the receipt of such Designated Non-cash Consideration, calculated on a Pro Forma Basis (with the Fair Market Value fair market value of each such item of Designated Non-cash Consideration being measured pursuant to this clause (E) at Bidco’s option, either at the time of contractually agreeing to such Asset Sale or at the time received and, in either case, and without giving effect to subsequent changes in value); and
(Fiii) any Investment, Capital Stock, assets, property or capital or other expenditure of the kind referred to in Section 6.04(b)(ii) Net Proceeds thereof shall be deemed delivered to be Cash Equivalents the Collateral Agent for purposes of this provision and for no other purposedeposit into the Collateral Account as Trust Monies.
(b) Within 365 days after the Reinvestment Period after Bidco’s receipt of any Net Proceeds from an Asset Sale, the Company or any such Restricted Subsidiary’s receipt 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 any Asset Sale, Bidco such commitment if the Company or such Restricted Subsidiary shall apply an amount equal to the Net Proceeds from enters into such Asset Sale,
(i) (A) to prepay Loans or Indebtedness in accordance with Section 2.10(c) or (B) to the extent not required to prepay Loans pursuant to Section 2.10(c), to be retained by Bidco and/or Restricted Subsidiaries; or
(ii) to make investments in Bidco and its Subsidiaries; provided that Bidco and the Restricted Subsidiaries will be deemed to have complied with this clause (ii) if and to the extent that, within the Reinvestment Period after the Asset Sale that generated the Net Proceeds, Bidco or such Restricted Subsidiary has entered into and not abandoned or rejected a binding agreement or letter of intent to consummate any such investment described in this clause (ii) 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 such commitment the 365-day period (an “Acceptable Commitment”) and, in the event any such commitment is later cancelled or terminated for any reason before the Net Proceeds are applied in connection therewith, Bidco or such Restricted Subsidiary enters into another Acceptable Commitment (a “Second Commitment”) within 180 days of such cancellation or termination; provided that if any Second Commitment is later cancelled cancelled, terminated or terminated otherwise not consummated during such period for any reason before reason, then an amount equal to the amount of any such unapplied Net Proceeds are applied, then Bidco or shall upon such Restricted Subsidiary shall prepay the Loans in accordance with Section 2.10(c)event constitute Excess Proceeds.
(c) Pending 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 final application 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 Sections 4.10(b) and (c), and the Notes Liens on such Trust Monies shall be automatically released upon such disbursement.
(e) 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, 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 covenantSection 4.10 and the length of time the Asset Sale Offer will remain open;
(ii) the offer amount, the holder 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 such Net Proceeds may apply such Net Proceeds temporarily $2,000 and integral multiples of $1,000 in excess thereof;
(vi) that Holders electing to reduce Indebtedness outstanding under have a Note purchased pursuant to any Asset Sale Offer will be required to surrender the Revolving Facility Note, with the form entitled “Option of Holder to Elect Purchase” on the reverse of the Note completed, or any other revolving credit facility transfer by book-entry transfer, to the Company, a Depositary, if appointed by the Company, or otherwise use such Net Proceeds a Paying Agent at the address specified in any manner not prohibited by this Agreement. Bidco 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 any Restricted Subsidiarythe 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 elect 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 invest in Bidco and its Subsidiaries prior to receiving the Net Proceeds attributable to any given unpurchased portion of the Notes surrendered (or transferred by book-entry transfer).
(g) On or before the Asset Sale (provided 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 investment shall be made no earlier than execution of a definitive agreement Notes or portions thereof were accepted for payment by the relevant Asset Sale) and deem the amount so invested to be applied pursuant to and Company in accordance with clause the terms of this Section 4.10. The Company, the Depositary or the Paying Agent, as the case may be, will promptly (b)(iibut in any case not later than five days after the Asset Sale purchase date) above mail (or provide in accordance with respect 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 SaleSale 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. (a) Bidco 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:
unless (ix) Bidco the Company, or such its Restricted SubsidiarySubsidiaries, as the case may be, receives consideration at the time of such Asset Sale at least equal to the Fair Market Value fair market value (as determined at in good faith by the time of contractually agreeing to such Asset SaleCompany) of the assets sold or otherwise disposed of; and
of and (iiy) except in the case of a Permitted Asset Swap, if the property or assets sold or otherwise disposed of have a Fair Market Value in excess of the greater of $375,000,000 and 50% of Consolidated EBITDA for the most recently ended Test Period at the time of such disposition, calculated on a Pro Forma Basis, at least 75% of the consideration therefor received by Bidco the Company, or such Restricted Subsidiary, as the case may be, is in the form of cash or Cash Equivalents; provided that the amount of:
of (A) any liabilities, contingent or otherwise, of Bidco liabilities (as shown on the Company's or such Restricted Subsidiary, 's most recent balance sheet or in the notes thereto) of the Company or any Restricted Subsidiary (other than liabilities that are by their terms subordinated to the Secured Obligations or Notes), that are owed to Bidco or a Restricted Subsidiary that (x) are assumed by the transferee of any such assets (or a third party in connection with such transfer) or (y) are otherwise cancelled or terminated in connection with the transaction with such transferee (other than intercompany debt owed to Bidco or its Restricted Subsidiaries) andassets, in each case, for which Bidco and all of its Restricted Subsidiaries have been validly released;
(B) any securities, notes or other obligations or assets received by Bidco the Company or such Restricted Subsidiary from such transferee that are converted by Bidco the Company or such Restricted Subsidiary into cash or Cash Equivalents (to the extent of the cash or Cash Equivalents received) within 180 days following the closing of such Asset Sale;
Sale and (C) Indebtedness of any Restricted Subsidiary that ceases to be a Restricted Subsidiary as a result of such Asset Sale (other than intercompany debt owed to Bidco or any Restricted Subsidiary), to the extent that Bidco and each other Restricted Subsidiary are released from any guarantee of payment of the principal amount of such Indebtedness in connection with such Asset Sale in accordance with the terms of this Agreement,
(D) consideration consisting of Indebtedness of a Borrower or a Guarantor (other than intercompany debt owed to Bidco or any Restricted Subsidiary and other than Subordinated Indebtedness) received after the Effective Date from Persons who are not Bidco, Holdings or any Restricted Subsidiary;
(E) any Designated Non-cash Noncash Consideration received by Bidco the Company or such any of its Restricted Subsidiary Subsidiaries in such Asset Sale having an aggregate Fair Market Value fair market value, taken together with all other Designated Non-cash Noncash Consideration received pursuant to this clause (EC) that is at that time outstanding, not to exceed the greater of $225,000,000 and 3015% of Consolidated EBITDA for the most recently ended Test Period Total Assets at the time of the receipt of such Designated Non-cash Consideration, calculated on a Pro Forma Basis Noncash Consideration (with the Fair Market Value fair market value of each such item of Designated Non-cash Noncash Consideration being measured pursuant to this clause (E) at Bidco’s option, either at the time of contractually agreeing to such Asset Sale or at the time received and, in either case, and without giving effect to subsequent changes in value); and
(F) any Investment, Capital Stock, assets, property or capital or other expenditure of the kind referred to in Section 6.04(b)(ii) shall be deemed to be Cash Equivalents cash for purposes of this provision and for no other purpose.
(b) Within 365 days after the Reinvestment Period after Bidco’s Company's or any Restricted Subsidiary’s 's receipt of the Net Proceeds of any Asset Sale, Bidco the Company or such Restricted Subsidiary shall may apply an amount equal to the Net Proceeds from such Asset Sale,
, at its option, (i) to permanently reduce Obligations under the Senior Credit Facility (Aand to correspondingly reduce commitments with respect thereto) to prepay Loans 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 Section 2.10(c) or (Bthe procedures set forth below for an Asset Sale Offer) to all Holders to purchase at 100% of the extent not required to prepay Loans pursuant to Section 2.10(cprincipal amount thereof the amount of Notes that would otherwise be prepaid), to be retained by Bidco and/or Restricted Subsidiaries; or
(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 investments an investment in Bidco properties or assets that replace the properties and its Subsidiaries; provided assets that Bidco and are the Restricted Subsidiaries will be deemed to have complied with this clause (ii) if and to the extent that, within the Reinvestment Period after the Asset Sale that generated the Net Proceeds, Bidco or such Restricted Subsidiary has entered into and not abandoned or rejected a binding agreement or letter of intent to consummate any such investment described in this clause (ii) with the good faith expectation that such Net Proceeds will be applied to satisfy such commitment within 180 days subject of such commitment (an “Acceptable Commitment”) and, in the event any such commitment is later cancelled or terminated for any reason before the Net Proceeds are applied in connection therewith, Bidco or such Restricted Subsidiary enters into another Acceptable Commitment (a “Second Commitment”) within 180 days of such cancellation or termination; provided that if any Second Commitment is later cancelled or terminated for any reason before such Net Proceeds are applied, then Bidco or such Restricted Subsidiary shall prepay the Loans in accordance with Section 2.10(c).
(c) Asset Sale. Pending the final application of any such Net Proceeds pursuant to this covenantProceeds, the holder of Company or such Net Proceeds Restricted Subsidiary may apply such Net Proceeds temporarily to reduce Indebtedness outstanding under the Revolving Facility or any other a revolving credit facility facility, if any, or otherwise use invest such Net Proceeds in any manner not prohibited by this AgreementCash Equivalents or Investment Grade Securities. Bidco or any Restricted Subsidiary, as the case may be, may elect to invest in Bidco and its Subsidiaries prior to receiving the Any Net Proceeds attributable to any given from the Asset Sale (that are not invested as provided that such investment and within the time period set forth in the first sentence of this paragraph shall be made 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 execution 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 a definitive agreement for business at least five Business Days prior to the relevant Asset SaleSale Purchase Date;
(iv) and deem the amount so invested any Note not tendered will continue to be applied 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 clause (b)(ii) above with respect 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 SaleSale 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 1017, 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) Bidco The Company shall not, and shall not permit any of its Restricted Subsidiaries to, consummate an Asset Sale, unless:
(i) Bidco the Company or such Restricted Subsidiary, as the case may be, receives consideration at the time of such Asset Sale at least equal to the Fair Market Value (fair market value as determined at in good faith by the time 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; and
(ii) except in the case of a Permitted Asset Swap, if the property or assets sold or otherwise disposed of have a Fair Market Value in excess of the greater of $375,000,000 and 50% of Consolidated EBITDA for the most recently ended Test Period at the time of such disposition, calculated on a Pro Forma Basis, at least 75% of the consideration therefor received by Bidco the Company or such Restricted Subsidiary, as the case may be, is in the form of cash or Cash Equivalents; provided that the amount of:
(Aa) any liabilities, contingent or otherwise, of Bidco 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 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 Restricted Subsidiary, other than liabilities that are by their terms subordinated to the Secured Obligations Notes or the Guarantees, that are owed to Bidco or a Restricted Subsidiary that (x) are assumed by the transferee of any such assets (or a third party in connection with such transfer) or (y) that are otherwise cancelled or terminated in connection with the transaction with such transferee (other than intercompany debt owed to Bidco or its Restricted Subsidiaries) and, in each case, and for which Bidco the Company and all of its Restricted Subsidiaries have been validly released;released by all creditors in writing,
(Bb) any securities, notes or other obligations or assets received by Bidco the Company or such any Restricted Subsidiary from such transferee that are converted by Bidco the Company or such Restricted Subsidiary into cash Cash Equivalents, or by their terms are required to be satisfied for Cash Equivalents (to the extent of the cash or Cash Equivalents received) within 180 365 days following the closing of such Asset Sale;, and
(C) Indebtedness of any Restricted Subsidiary that ceases to be a Restricted Subsidiary as a result of such Asset Sale (other than intercompany debt owed to Bidco or any Restricted Subsidiary), to the extent that Bidco and each other Restricted Subsidiary are released from any guarantee of payment of the principal amount of such Indebtedness in connection with such Asset Sale in accordance with the terms of this Agreement,
(D) consideration consisting of Indebtedness of a Borrower or a Guarantor (other than intercompany debt owed to Bidco or any Restricted Subsidiary and other than Subordinated Indebtedness) received after the Effective Date from Persons who are not Bidco, Holdings or any Restricted Subsidiary;
(Ec) any Designated Non-cash Consideration received by Bidco the Company or such any Restricted Subsidiary in such Asset Sale having an aggregate Fair Market Value fair market value, taken together with all other Designated Non-cash Consideration received pursuant to this clause (Ec) that is at that time outstanding, not to exceed the greater of (x) $225,000,000 150.0 million and 30(y) 2.0% of Consolidated EBITDA for the most recently ended Test Period Total Assets at the time of the receipt of such Designated Non-cash Consideration, calculated on a Pro Forma Basis (with the Fair Market Value fair market value of each such item of Designated Non-cash Consideration being measured pursuant to this clause (E) at Bidco’s option, either at the time of contractually agreeing to such Asset Sale or at the time received and, in either case, and without giving effect to subsequent changes in value); and
(F) any Investment, Capital Stock, assets, property or capital or other expenditure of the kind referred to in Section 6.04(b)(ii) shall be deemed to be Cash Equivalents for purposes of this provision Section 4.06(a) and for no other purpose.
(b) Within 365 days after the Reinvestment Period after Bidco’s or any Restricted Subsidiary’s receipt of the any Net Proceeds of any Asset Sale, Bidco the Company or such Restricted Subsidiary shall Subsidiary, at the Company’s option, may apply an amount equal to the Net Proceeds from such Asset Sale,
(i) to the extent such Net Proceeds represent proceeds from an Asset Sale of PP&E Collateral, (Aa) repay, prepay, defease, redeem, purchase or otherwise retire PP&E First Lien Obligations (and if the Indebtedness repaid is revolving credit indebtedness, to prepay Loans or Indebtedness in accordance correspondingly reduce commitments with Section 2.10(crespect thereto) or (Bb) to 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 extent not required to prepay Loans pursuant to Section 2.10(cform 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), to be retained by Bidco and/or Restricted Subsidiaries(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 make investments 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 Bidco and its Subsidiariesright 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 Bidco and the Restricted Subsidiaries will be deemed that, with respect to have complied with this clause (iib), the Company shall equally and ratably prepay, repay, redeem, reduce or purchase (or offer to prepay, repay, redeem, reduce or purchase, as applicable) if 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, within in the Reinvestment Period after case of each of (a), (b) and (c), replace the businesses, properties and/or other assets that are the subject of such Asset Sale that generated 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, Bidco Proceeds from the date of such commitment so long as the Company or such other Restricted Subsidiary has entered enters into and not abandoned or rejected a binding agreement or letter of intent to consummate any such investment described in this clause (ii) 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 such commitment is later cancelled or terminated for any reason before the Net Proceeds are applied in connection therewith, Bidco or such Restricted Subsidiary enters into another Acceptable Commitment (a “Second Commitment”) within 180 days of such cancellation or termination; provided that if any Second Commitment is later cancelled or terminated for any reason before such Net Proceeds are applied, then Bidco 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 prepay be an obligation of the Loans 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 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 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 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 2.10(c3.04. 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).
(c) . Pending the final application of any Net Proceeds pursuant to this covenantSection 4.06, the holder of such Net Proceeds may apply such Net Proceeds temporarily to reduce Indebtedness outstanding under the Revolving Facility or any other a revolving credit facility or otherwise use invest such Net Proceeds in any manner not prohibited by this AgreementIndenture. Bidco 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 any Restricted Subsidiary, as regulations are applicable in connection with the case may be, may elect repurchase of the Notes pursuant to invest in Bidco and its Subsidiaries prior to receiving the Net Proceeds attributable to any given an Asset Sale (provided Offer. To the extent that such investment 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 made no earlier than execution of a definitive agreement for the relevant Asset Sale) and deem the amount so invested deemed to be applied pursuant to and have breached their obligations described in accordance with clause (b)(ii) above with respect to such Asset Salethis Indenture by virtue thereof.
Appears in 2 contracts
Asset Sales. Effect any Asset Sale, or agree to effect any Asset Sale, except that the following shall be permitted:
(a) Bidco 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 does not exceed fair market value for such Asset Sale, unless:(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) Bidco the 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 Restricted Subsidiary, as sale is in an arm’s-length transaction and the case may be, applicable Company receives consideration at the time of such Asset Sale at least equal to the Fair Market Value fair market value consideration (as determined at in good faith by such Company), (y) the time of contractually agreeing Collateral Agent shall have a First Priority perfected Lien on the assets acquired pursuant to such Asset Sale) of Swap at least to the same extent as the assets sold or otherwise disposed of; andpursuant 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
(iii) except shall not exceed $25 million in the case of a Permitted 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 $25 million aggregate cap will not apply to such Asset Swap;
(j) sales, if transfers and other dispositions of Receivables and Related Security to a Securitization Subsidiary for the property fair market value thereof and all sales, transfers or assets 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 no Default is then continuing or would result therefrom, the arm’s-length sale or disposition for cash of Equity Interests in a Joint Venture Subsidiary for fair market value or the issuance of Equity Interests in a Joint Venture Subsidiary; provided, however, that the aggregate fair market value of all such Equity Interests sold or otherwise disposed of have a Fair Market Value in excess of the greater of $375,000,000 and 50% of Consolidated EBITDA for the most recently ended Test Period at the time of such disposition, calculated on a Pro Forma Basis, at least 75% of the consideration therefor received by Bidco or such Restricted Subsidiary, as the case may be, is in the form of cash or Cash Equivalents; provided that the amount of:
(A) any liabilities, contingent or otherwise, of Bidco or such Restricted Subsidiary, other than liabilities that are by their terms subordinated to the Secured Obligations or that are owed to Bidco or a Restricted Subsidiary that (x) are assumed by the transferee of any such assets (or a third party in connection with such transfer) or (y) are otherwise cancelled or terminated in connection with the transaction with such transferee (other than intercompany debt owed to Bidco or its Restricted Subsidiaries) and, in each case, for which Bidco and all of its Restricted Subsidiaries have been validly released;
(B) any securities, notes or other obligations or assets received by Bidco or such Restricted Subsidiary from such transferee that are converted by Bidco or such Restricted Subsidiary into cash or Cash Equivalents (to the extent of the cash or Cash Equivalents received) within 180 days following the closing of such Asset Sale;
(C) Indebtedness of any Restricted Subsidiary that ceases to be a Restricted Subsidiary as a result of such Asset Sale (other than intercompany debt owed to Bidco or any Restricted Subsidiary), to the extent that Bidco and each other Restricted Subsidiary are released from any guarantee of payment of the principal amount of such Indebtedness in connection with such Asset Sale in accordance with the terms of this Agreement,
(D) consideration consisting of Indebtedness of a Borrower or a Guarantor (other than intercompany debt owed to Bidco or any Restricted Subsidiary and other than Subordinated Indebtedness) received after the Effective Date from Persons who are not Bidco, Holdings or any Restricted Subsidiary;
(E) any Designated Non-cash Consideration received by Bidco or such Restricted Subsidiary in such Asset Sale having an aggregate Fair Market Value taken together with all other Designated Non-cash Consideration received pursuant to this clause (Ek) that is at that time outstanding, following the Closing Date shall not to exceed the greater of $225,000,000 and 30% of Consolidated EBITDA for the most recently ended Test Period at the time of the receipt of such Designated Non-cash Consideration, calculated on a Pro Forma Basis (with the Fair Market Value of each such item of Designated Non-cash Consideration being measured pursuant to this clause (E) at Bidco’s option, either at the time of contractually agreeing to such Asset Sale or at the time received and, in either case, without giving effect to subsequent changes in value)300 million; and
(Fl) issuances of Equity Interests permitted under Section 6.13(b)(i), (ii), (iii), (iv) and (vi). To the extent the Required Lenders or such other number of Lenders whose consent is required under Section 11.02, as applicable, waive the provisions of this Section 6.06 with respect to the sale of any InvestmentCollateral or any Collateral is sold as permitted by this Section 6.06, Capital Stock, assets, property or capital or other expenditure and so long as the Lien of the kind referred Revolving Credit Funding Agent or the Revolving Credit Collateral Agent (or any other Revolving Credit Agents) pursuant to the Revolving Credit Loan Documents in Section 6.04(b)(iisuch Collateral is also released, such Collateral (unless sold to a Loan Party) shall be deemed to be Cash Equivalents for purposes of this provision sold free and for no other purpose.
(b) Within the Reinvestment Period after Bidco’s or any Restricted Subsidiary’s receipt clear of the Net Proceeds of Liens created by the Security Documents, and so long as the Loan Parties shall have provided the Agents such certificates or documents as any Asset Sale, Bidco or such Restricted Subsidiary Agent shall apply an amount equal reasonably request in order to the Net Proceeds from such Asset Sale,
(i) (A) to prepay Loans or Indebtedness in accordance with Section 2.10(c) or (B) to the extent not required to prepay Loans pursuant to Section 2.10(c), to be retained by Bidco and/or Restricted Subsidiaries; or
(ii) to make investments in Bidco and its Subsidiaries; provided that Bidco and the Restricted Subsidiaries will be deemed to have complied demonstrate compliance with this clause (ii) if and to the extent that, within the Reinvestment Period after the Asset Sale that generated the Net Proceeds, Bidco or such Restricted Subsidiary has entered into and not abandoned or rejected a binding agreement or letter of intent to consummate any such investment described in this clause (ii) 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 such commitment is later cancelled or terminated for any reason before the Net Proceeds are applied in connection therewith, Bidco or such Restricted Subsidiary enters into another Acceptable Commitment (a “Second Commitment”) within 180 days of such cancellation or termination; provided that if any Second Commitment is later cancelled or terminated for any reason before such Net Proceeds are applied, then Bidco or such Restricted Subsidiary shall prepay the Loans in accordance with Section 2.10(c).
(c) Pending the final application of any Net Proceeds pursuant to this covenant6.06, the holder of such Net Proceeds may apply such Net Proceeds temporarily Agents shall take all actions as Administrative Borrower reasonably requests in order to reduce Indebtedness outstanding under effect the Revolving Facility or any other revolving credit facility or otherwise use such Net Proceeds in any manner not prohibited by this Agreement. Bidco or any Restricted Subsidiary, as the case may be, may elect to invest in Bidco and its Subsidiaries prior to receiving the Net Proceeds attributable to any given Asset Sale (provided that such investment shall be made no earlier than execution of a definitive agreement for the relevant Asset Sale) and deem the amount so invested to be applied pursuant to and in accordance with clause (b)(ii) above with respect to such Asset Saleforegoing.
Appears in 2 contracts
Samples: Credit Agreement (Novelis Inc.), Credit Agreement (Novelis South America Holdings LLC)
Asset Sales. (a) Bidco shall The 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) Bidco sell, lease or otherwise dispose of inventory as a part of the outsourcing of a manufacturing activity previous conducted by the Borrower pursuant to which the Borrower or the Subsidiaries intend to repurchase substantially all of such Restricted Subsidiaryinventory (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, leased or otherwise disposed of in such transaction is less than $5,000,000, (iv) sell, lease or otherwise dispose of property to the Borrower or a Subsidiary in any transaction permitted by Section 6.04(a)(iii), (v) sell accounts receivable in Non-Recourse Receivables Sales, provided that the aggregate amount of accounts receivable of the Borrower and the Subsidiaries which shall have been sold in Non-Recourse Receivables Sales pursuant to this Section 6.05 during any fiscal quarter shall not exceed the greater of (x) $150,000,000 and (y) 15% of the amount equal to the aggregate amount outstanding of all accounts receivable of the Borrower and the Subsidiaries as of the case may belast day of such fiscal quarter plus the aggregate amount of such accounts receivable sold during such quarter in Non-Recourse Receivables Sales, receives consideration (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 Asset Sale at least equal to the Fair Market Value (as determined at the time of contractually agreeing to such Asset Sale) of the assets sold or otherwise disposed of; and
(ii) except in the case of a Permitted Asset Swapsale, if the property or assets sold or otherwise disposed of have a Fair Market Value in excess of the greater of $375,000,000 and 50% of Consolidated EBITDA for the most recently ended Test Period at the time of such disposition, calculated on a Pro Forma Basis, at least 75% of the consideration therefor received by Bidco or such Restricted Subsidiary, as the case may be, is in the form of cash or Cash Equivalents; provided that the amount of:
(A) any liabilities, contingent or otherwise, of Bidco or such Restricted Subsidiary, other than liabilities that are by their terms subordinated to the Secured Obligations or that are owed to Bidco or a Restricted Subsidiary that (x) are assumed by the transferee of any such assets (or a third party in connection with such transfer) or (y) are otherwise cancelled or terminated in connection with the transaction with such transferee (other than intercompany debt owed to Bidco or its Restricted Subsidiaries) and, in each case, for which Bidco and all of its Restricted Subsidiaries have been validly released;
(B) any securities, notes lease or other obligations or assets received by Bidco or such Restricted Subsidiary from such transferee that are converted by Bidco or such Restricted Subsidiary into cash or Cash Equivalents (to the extent of the cash or Cash Equivalents received) within 180 days following the closing of such Asset Sale;
(C) Indebtedness of any Restricted Subsidiary that ceases to be a Restricted Subsidiary as a result of such Asset Sale (other than intercompany debt owed to Bidco or any Restricted Subsidiary), to the extent that Bidco and each other Restricted Subsidiary are released from any guarantee of payment of the principal amount of such Indebtedness in connection with such Asset Sale in accordance with the terms of this Agreement,
(D) consideration consisting of Indebtedness of a Borrower or a Guarantor (other than intercompany debt owed to Bidco or any Restricted Subsidiary and other than Subordinated Indebtedness) received after the Effective Date from Persons who are not Bidco, Holdings or any Restricted Subsidiary;
(E) any Designated Non-cash Consideration received by Bidco or such Restricted Subsidiary in such Asset Sale having an aggregate Fair Market Value taken together with all other Designated Non-cash Consideration received pursuant to this clause (E) that is at that time outstanding, not to disposition exceed the greater of (x) $225,000,000 150,000,000 and 30(y) 15% of Consolidated EBITDA for Tangible Assets as of the last day of the most recently ended Test Period at the time recent fiscal period in respect of the receipt of such Designated Non-cash Consideration, calculated on a Pro Forma Basis (with the Fair Market Value of each such item of Designated Non-cash Consideration being measured pursuant to this clause (E) at Bidco’s option, either at the time of contractually agreeing to such Asset Sale or at the time received and, in either case, without giving effect to subsequent changes in value); and
(F) any Investment, Capital Stock, assets, property or capital or other expenditure of the kind referred to in Section 6.04(b)(ii) shall be deemed to be Cash Equivalents for purposes of this provision and for no other purpose.
(b) Within the Reinvestment Period after Bidco’s or any Restricted Subsidiary’s receipt of the Net Proceeds of any Asset Sale, Bidco or such Restricted Subsidiary shall apply an amount equal to the Net Proceeds from such Asset Sale,
(i) (A) to prepay Loans or Indebtedness in accordance with Section 2.10(c) or (B) to the extent not required to prepay Loans which financial statements have been delivered pursuant to Section 2.10(c), to be retained by Bidco and/or Restricted Subsidiaries; or
(ii) to make investments in Bidco and its Subsidiaries; provided that Bidco and the Restricted Subsidiaries will be deemed to have complied with this clause (ii) if and to the extent that, within the Reinvestment Period after the Asset Sale that generated the Net Proceeds, Bidco or 5.01 at such Restricted Subsidiary has entered into and not abandoned or rejected a binding agreement or letter of intent to consummate any such investment described in this clause (ii) 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 such commitment is later cancelled or terminated for any reason before the Net Proceeds are applied in connection therewith, Bidco or such Restricted Subsidiary enters into another Acceptable Commitment (a “Second Commitment”) within 180 days of such cancellation or termination; provided that if any Second Commitment is later cancelled or terminated for any reason before such Net Proceeds are applied, then Bidco or such Restricted Subsidiary shall prepay the Loans in accordance with Section 2.10(c)time.
(c) 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 the Revolving Facility or any other revolving credit facility or otherwise use such Net Proceeds in any manner not prohibited by this Agreement. Bidco or any Restricted Subsidiary, as the case may be, may elect to invest in Bidco and its Subsidiaries prior to receiving the Net Proceeds attributable to any given Asset Sale (provided that such investment shall be made no earlier than execution of a definitive agreement for the relevant Asset Sale) and deem the amount so invested to be applied pursuant to and in accordance with clause (b)(ii) above with respect to such Asset Sale.
Appears in 2 contracts
Samples: Revolving Credit Agreement (Teradata Corp /De/), Revolving Credit Agreement (Teradata Corp /De/)
Asset Sales. (a) Bidco Holdings shall not, and shall not permit any of its Restricted Subsidiaries to, consummate an Asset Sale, Sale unless:
(i) Bidco Holdings or such Restricted Subsidiary, as the case may be, Subsidiary receives consideration at the time of such Asset Sale at least equal to the Fair Market Value (as determined at the time of contractually agreeing to such Asset Sale) of the assets or Equity Interests issued or sold or otherwise disposed of; and;
(ii) except in the case of a Permitted Asset Swap, if the property or assets sold or otherwise disposed of have a Fair Market Value in excess of the greater of $375,000,000 and 50% of Consolidated EBITDA for the most recently ended Test Period at the time of such disposition, calculated on a Pro Forma Basis, at least 75% of the consideration therefor received by Bidco Holdings or such Restricted Subsidiary, as the case may be, Subsidiary is in the form of cash cash, Cash Equivalents or Cash Equivalents; provided that Replacement Assets or a combination thereof. For purposes of this provision, each of the amount offollowing shall be deemed to be cash:
(A) any liabilities, contingent or otherwise, of Bidco as shown on Holdings’ or such Restricted Subsidiary’s most recent balance sheet, of Holdings or any Restricted Subsidiary (other than liabilities contingent liabilities, Indebtedness that are is by their its terms subordinated to the Secured Obligations or that are and liabilities to the extent owed to Bidco Holdings or a Restricted Subsidiary any Affiliate of Holdings) that (x) are assumed by the transferee of any such assets (or Equity Interests pursuant to a third party in connection with written novation agreement that releases Holdings or such transfer) or (y) are otherwise cancelled or terminated in connection with the transaction with such transferee (other than intercompany debt owed to Bidco or its Restricted Subsidiaries) Subsidiary from further liability therefor, and, in each case, for which Bidco and all of its Restricted Subsidiaries have been validly released;
(B) any securities, notes or other obligations or assets received by Bidco Holdings or any such Restricted Subsidiary from such transferee that are (within 90 days of receipt and subject to ordinary settlement periods) converted by Bidco Holdings or such Restricted Subsidiary into cash or Cash Equivalents (to the extent of the cash or Cash Equivalents received) within 180 days following the closing of such Asset Sale;received in that conversion); and
(Ciii) Indebtedness of any Restricted Subsidiary that ceases to be a Restricted Subsidiary as a result of if such Asset Sale involves the transfer of Collateral,
(other than intercompany debt owed to Bidco or any Restricted Subsidiary)A) such Asset Sale complies with the applicable provisions of the Security Documents, and
(B) to the extent that Bidco required by the Security Documents, all consideration (including cash and each other Restricted Subsidiary are released from any guarantee of payment of the principal amount of such Indebtedness in connection with such Asset Sale in accordance with the terms of this Agreement,
(D) consideration consisting of Indebtedness of a Borrower or a Guarantor (other than intercompany debt owed to Bidco or any Restricted Subsidiary and other than Subordinated IndebtednessCash Equivalents) received after the Effective Date from Persons who are not Bidco, Holdings or any Restricted Subsidiary;
(E) any Designated Non-cash Consideration received by Bidco or such Restricted Subsidiary 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 (E) that is at that time outstanding, not to exceed the greater of $225,000,000 and 3075 million since 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 Consolidated EBITDA for the most recently ended Test Period at the time of the receipt of such Designated Non-cash Consideration, calculated on a Pro Forma Basis (with the Fair Market Value of each such item of Designated Non-cash Consideration being measured pursuant to this clause (E) at Bidco’s option, either at the time of contractually agreeing to such Asset Sale or at the time received and, in either case, without giving effect to subsequent changes in value); and
(F) any Investment, Capital Stock, assets, property or capital or other expenditure of the kind limitation referred to in Section 6.04(b)(ii9.04(ii) shall be deemed satisfied with respect to be any Asset Sale in which the cash, Cash Equivalents for purposes of this provision and for no other purpose.
(b) Within the Reinvestment Period after Bidco’s or any Restricted Subsidiary’s receipt Replacement Assets portion of the Net Proceeds of any Asset Saleconsideration received therefrom, Bidco or such Restricted Subsidiary shall apply an amount equal to the Net Proceeds from such Asset Sale,
(i) (A) to prepay Loans or Indebtedness determined in accordance with Section 2.10(c) the foregoing provision on an after tax basis, is equal to or (B) to greater than what the extent not required to prepay Loans pursuant to Section 2.10(c), to be retained by Bidco and/or Restricted Subsidiaries; or
(ii) to make investments in Bidco and its Subsidiaries; provided that Bidco and the Restricted Subsidiaries will be deemed to after-tax proceeds would have been had such Asset Sale complied with this clause (ii) if and to the extent that, within the Reinvestment Period after the Asset Sale that generated the Net Proceeds, Bidco or such Restricted Subsidiary has entered into and not abandoned or rejected a binding agreement or letter of intent to consummate any such investment described in this clause (ii) 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 such commitment is later cancelled or terminated for any reason before the Net Proceeds are applied in connection therewith, Bidco or such Restricted Subsidiary enters into another Acceptable Commitment (a “Second Commitment”) within 180 days of such cancellation or termination; provided that if any Second Commitment is later cancelled or terminated for any reason before such Net Proceeds are applied, then Bidco or such Restricted Subsidiary shall prepay the Loans in accordance with Section 2.10(c)aforementioned 75% limitation.
(c) 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 the Revolving Facility or any other revolving credit facility or otherwise use such Net Proceeds in any manner not prohibited by this Agreement. Bidco or any Restricted Subsidiary, as the case may be, may elect to invest in Bidco and its Subsidiaries prior to receiving the Net Proceeds attributable to any given Asset Sale (provided that such investment shall be made no earlier than execution of a definitive agreement for the relevant Asset Sale) and deem the amount so invested to be applied pursuant to and in accordance with clause (b)(ii) above with respect to such Asset Sale.
Appears in 2 contracts
Samples: Credit Agreement and Subsidiaries Guaranty (Leap Wireless International Inc), Credit Agreement (Leap Wireless International Inc)
Asset Sales. (a) Bidco The Borrower shall not, and shall not permit any of its Restricted Subsidiaries to, to consummate an Asset Sale, unless:
(ia) Bidco the Borrower or such Restricted Subsidiary, as the case may be, receives consideration at the time of such Asset Sale at least equal to the Fair Market Value (as determined at the time of contractually agreeing to such Asset Sale) of the assets sold or otherwise disposed of; and
(iib) except in the case of a Permitted Asset Swap, if the property or assets sold or otherwise disposed of have a Fair Market Value in excess of the greater of $375,000,000 and 50% of Consolidated EBITDA for the most recently ended Test Period at the time of such disposition, calculated on a Pro Forma Basis, at least 75% of the consideration therefor received by Bidco the Borrower or such Restricted Subsidiary, as the case may be, is in the form of cash or Cash Equivalents; provided that the amount of:
of (Ai) any liabilities, contingent liabilities (as shown on the Borrower’s or otherwise, such Restricted Subsidiary’s most recent balance sheet or in the footnotes thereto) of Bidco the Borrower or such Restricted Subsidiary, other than liabilities that are by their terms subordinated to the Secured Obligations or Obligations, that are owed to Bidco or a Restricted Subsidiary that (x) are assumed by the transferee of any such assets (or a third party in connection with such transfer) or (y) are otherwise cancelled or terminated in connection with the transaction with such transferee (other than intercompany debt owed to Bidco or its Restricted Subsidiaries) and, in each case, and for which Bidco the Borrower and all of its Restricted Subsidiaries have been validly released;
released by all creditors in writing, (Bii) any securities, notes or other obligations or assets securities received by Bidco the Borrower or such Restricted Subsidiary from such transferee that are converted by Bidco the Borrower or such Restricted Subsidiary into cash or Cash Equivalents (to the extent of the cash or Cash Equivalents received) within 180 days following the closing of such Asset Sale;
, and (C) Indebtedness of any Restricted Subsidiary that ceases to be a Restricted Subsidiary as a result of such Asset Sale (other than intercompany debt owed to Bidco or any Restricted Subsidiary), to the extent that Bidco and each other Restricted Subsidiary are released from any guarantee of payment of the principal amount of such Indebtedness in connection with such Asset Sale in accordance with the terms of this Agreement,
(D) consideration consisting of Indebtedness of a Borrower or a Guarantor (other than intercompany debt owed to Bidco or any Restricted Subsidiary and other than Subordinated Indebtedness) received after the Effective Date from Persons who are not Bidco, Holdings or any Restricted Subsidiary;
(Eiii) any Designated Non-cash Consideration received by Bidco the Borrower or such Restricted Subsidiary in such Asset Sale having an aggregate Fair Market Value Value, taken together with all other Designated Non-cash Consideration received pursuant to this clause (Eiii) that is at that time outstanding, not to exceed the greater of $225,000,000 and 307.5% of Consolidated EBITDA for the most recently ended Test Period Total Assets at the time of the receipt of such Designated Non-cash Consideration, calculated on a Pro Forma Basis (with the Fair Market Value of each such item of Designated Non-cash Consideration being measured pursuant to this clause (E) at Bidco’s option, either at the time of contractually agreeing to such Asset Sale or at the time received and, in either case, and without giving effect to subsequent changes in value); and
(F) any Investment, Capital Stock, assets, property or capital or other expenditure of the kind referred to in Section 6.04(b)(ii) shall be deemed to be Cash Equivalents for purposes of this provision and for no other purpose.; and
(bc) Within the Reinvestment Period after Bidco’s or any Restricted Subsidiary’s receipt an amount equal to 100% of the Net Proceeds of any Asset Sale, Bidco or such Restricted Subsidiary shall apply an amount equal to the Net Proceeds from such Asset Sale,
(i) (A) to prepay Loans or Indebtedness Sale are applied in accordance with Section 2.10(c) or the requirements of (B) to the extent not required to prepay Loans pursuant to Section 2.10(c), to be retained by Bidco and/or Restricted Subsidiaries; or
(ii) to make investments in Bidco and its Subsidiaries; provided that Bidco and the Restricted Subsidiaries will be deemed to have complied with this clause (ii) if and to the extent that, within the Reinvestment Period after the Asset Sale that generated the Net Proceeds, Bidco or such Restricted Subsidiary has entered into and not abandoned or rejected a binding agreement or letter of intent to consummate any such investment described in this clause (iirequired by) 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 such commitment is later cancelled or terminated for any reason before the Net Proceeds are applied in connection therewith, Bidco or such Restricted Subsidiary enters into another Acceptable Commitment (a “Second Commitment”) within 180 days of such cancellation or termination; provided that if any Second Commitment is later cancelled or terminated for any reason before such Net Proceeds are applied, then Bidco or such Restricted Subsidiary shall prepay the Loans in accordance with Section 2.10(c2.05(c).
(c) 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 the Revolving Facility or any other revolving credit facility or otherwise use such Net Proceeds in any manner not prohibited by this Agreement. Bidco or any Restricted Subsidiary, as the case may be, may elect to invest in Bidco and its Subsidiaries prior to receiving the Net Proceeds attributable to any given Asset Sale (provided that such investment shall be made no earlier than execution of a definitive agreement for the relevant Asset Sale) and deem the amount so invested to be applied pursuant to and in accordance with clause (b)(ii) above with respect to such Asset Sale.
Appears in 2 contracts
Samples: Credit Agreement (Michaels Stores Inc), Credit Agreement (Michaels Stores Inc)
Asset Sales. (a) Bidco The Company shall not, and shall not permit any of its Restricted Subsidiaries to, consummate an Asset Sale, unless:
(i1) Bidco the Company or such Restricted Subsidiary, as the case may be, receives consideration at the time of such Asset Sale at least equal to the Fair Market Value fair market value (as determined in good faith by the Company at the time of contractually agreeing to such Asset SaleSale (which determination shall be conclusive)) of the assets sold or otherwise disposed ofof or the Equity Interests issued; and
(ii2) except in the case of a Permitted Asset Swap, if the property or assets sold or otherwise disposed of have a Fair Market Value in excess of the greater of $375,000,000 and 50% of Consolidated EBITDA for the most recently ended Test Period at the time of such disposition, calculated on a Pro Forma Basis, at least 75% of the consideration therefor received by Bidco the Company or such Restricted Subsidiary, as the case may be, is in the form of cash or Cash Equivalents; provided that the amount offollowing shall be deemed to be cash for purposes of this provision and for no other purpose:
(A) any liabilities, contingent or otherwise, of Bidco liabilities (as reflected in the Company’s or such Restricted Subsidiary’s most recent balance sheet or in the footnotes thereto or, if incurred, increased or accrued subsequent to the date of such balance sheet, such liabilities that would have been shown on the Company’s or such Restricted Subsidiary’s balance sheet or in the footnotes thereto if such incurrence, increase or accrual had taken place on or prior to the date of such balance sheet, as determined in good faith by the Company (which determination shall be conclusive)) of the Company or such Restricted Subsidiary (other than Contingent Obligations and liabilities that are by their terms subordinated to the Secured Obligations Notes or the applicable Guarantee) that are owed to Bidco or a Restricted Subsidiary that (x) are assumed by the transferee of any such assets (pursuant to a written agreement that releases or a third party indemnifies the Company or such Restricted Subsidiary from such liabilities or that are otherwise extinguished by the transferee in connection with such transfer) or (y) are otherwise cancelled or terminated in connection with the transaction with such transferee (other than intercompany debt owed to Bidco or its Restricted Subsidiaries) and, in each case, for which Bidco and all of its Restricted Subsidiaries have been validly releasedtransaction;
(B) any securities, notes or other similar obligations or assets received by Bidco the Company or such Restricted Subsidiary from such transferee that are converted by Bidco the Company or such Restricted Subsidiary into cash or Cash Equivalents (to the extent of the cash or Cash Equivalents received) within 180 days following of the closing of such Asset Salereceipt thereof;
(C) Indebtedness of any Restricted Subsidiary that ceases to be a Restricted Subsidiary as a result of such Asset Sale (other than intercompany debt owed to Bidco or any Restricted Subsidiary), to the extent that Bidco and each other Restricted Subsidiary are released from any guarantee of payment of the principal amount of such Indebtedness in connection with such Asset Sale in accordance with the terms of this Agreement,
(D) consideration consisting of Indebtedness of a Borrower or a Guarantor (other than intercompany debt owed to Bidco or any Restricted Subsidiary and other than Subordinated Indebtedness) received after the Effective Date from Persons who are not Bidco, Holdings or any Restricted Subsidiary;
(E) any Designated Non-cash Consideration received by Bidco the Company or such Restricted Subsidiary in such Asset Sale having an aggregate Fair Market Value fair market value, taken together with all other Designated Non-cash Consideration received pursuant to this clause (EC) that is at that time outstanding, not to exceed the greater of $225,000,000 50.0 million and 303.50% of Consolidated EBITDA for the most recently ended Test Period Total Assets at the time of the receipt of such Designated Non-cash Consideration, calculated on a Pro Forma Basis (with the Fair Market Value fair market value of each such item of Designated Non-cash Consideration being measured pursuant to this clause (E) at Bidco’s option, either at the time of contractually agreeing to such Asset Sale or at the time received and, in either case, and without giving effect to subsequent changes in value); and
(FD) Capital Stock of a Person that is a Restricted Subsidiary or of a Person engaged in a Similar Business that shall become a Restricted Subsidiary immediately upon the acquisition thereof by the Company or any Investment, Capital Stock, assets, property or capital or other expenditure of the kind referred to in Section 6.04(b)(ii) shall be deemed to be Cash Equivalents for purposes of this provision and for no other purposeRestricted Subsidiary.
(b) Within 365 days after the Reinvestment Period after Bidco’s or any Restricted Subsidiary’s receipt of the any Net Proceeds of any Asset Sale, Bidco the Company or such a Restricted Subsidiary shall Subsidiary, at its option, may apply an amount equal to the Net Proceeds from such Asset Sale,
(i1) to permanently reduce Indebtedness as follows:
(A) to prepay Loans or permanently reduce Secured Indebtedness, including Indebtedness under the Senior Secured Credit Facilities, in accordance each case, that is secured by a Lien that is permitted by this Indenture and (if applicable) to permanently reduce commitments with Section 2.10(c) or respect thereto;
(B) to permanently reduce Obligations under other Senior Indebtedness of the Company or a Subsidiary Guarantor (and (if applicable) to permanently reduce commitments with respect thereto); provided that the Company shall equally and ratably reduce (or offer to reduce, as applicable) Obligations under the Notes; provided further that all reductions of Obligations under the Notes shall be made as provided under Section 3.08 or through open-market purchases (to the extent not required such purchases are at or above 100% of the principal amount thereof plus accrued and unpaid interest) or by making an offer (in accordance with the procedures set forth below for an Asset Sale Offer) to prepay Loans pursuant all Holders of Notes to Section 2.10(c)purchase their Notes at 100% of the principal amount thereof, to plus the amount of accrued but unpaid interest, if any, on the amount of Notes that would otherwise be retained by Bidco and/or Restricted Subsidiariesprepaid; or
(iiC) to permanently reduce Indebtedness of a Restricted Subsidiary that is not a Subsidiary Guarantor, other than Indebtedness owed to the Company or any Restricted Subsidiary;
(2) to make investments (A) an Investment in Bidco and its Subsidiariesany one or more businesses; provided that Bidco 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 will be deemed to have complied with this clause Subsidiaries, as the case may be, owning an amount of the Capital Stock of such business such that it constitutes a Restricted Subsidiary, (iiB) if and to the extent capital expenditures or (C) acquisitions of other businesses, properties, noncurrent assets or intellectual property rights that, within in the Reinvestment Period after case of each of (A), (B) and (C), 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 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) acquisitions of other businesses, properties, noncurrent assets or intellectual property rights that, in the case of each of (A), (B) and (C), replace the businesses, properties, assets or intellectual property rights that are the subject of such Asset Sale that generated Sale; provided that, in the case of clauses (2) and (3) of this Section 4.10(b), a binding commitment entered into not later than the end of such 365-day period shall be treated as a permitted application of the Net Proceeds, Bidco Proceeds from the date of such commitment so long as the Company or such Restricted Subsidiary has entered enters into and not abandoned or rejected a binding agreement or letter of intent to consummate any such investment described in this clause (ii) commitment with the good faith expectation that such an amount equal to the Net Proceeds will be applied to satisfy such commitment within 180 days of the end of such commitment 365-day period (an “Acceptable Commitment”) and, in the event any such commitment is later cancelled or terminated for any reason before the Net Proceeds are applied in connection therewith, Bidco or such Restricted Subsidiary enters into another Acceptable Commitment (a “Second Commitment”) within 180 days of such cancellation or termination; provided that if any Second Commitment is later cancelled or terminated for any reason before such an amount equal to the Net Proceeds are is so applied, then Bidco the Company or such Restricted Subsidiary shall prepay be permitted to apply an amount equal to the Loans Net Proceeds in accordance with Section 2.10(c)any manner set forth above before the expiration of such 180-day period and, in the event the Company or such Restricted Subsidiary fails to do so, then such Net Proceeds shall constitute Excess Proceeds.
(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) will be deemed to constitute “Excess Proceeds.” When the aggregate amount of Excess Proceeds exceeds $50.0 million (the “Excess Proceeds Threshold”), the Company shall make an offer to all Holders of the Notes and, if required 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 Notes and such Senior Indebtedness that, in the case of Notes, is an integral multiple of $1,000 (but in minimum denominations of $2,000) that may be purchased with such Excess Proceeds at an offer price, in the case of the Notes, 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, and in the case of any Senior Indebtedness at the offer price required by the terms thereof but not to exceed 100% of the principal amount thereof, plus accrued and unpaid interest, if any, in each case in accordance with the procedures set forth in this Indenture. The Company will commence an Asset Sale Offer with respect to Excess Proceeds within 10 Business Days after the date that Excess Proceeds exceed the Excess Proceeds Threshold by delivering the notice required pursuant to the terms of this Indenture, with a copy to the Trustee for delivery to Holders. 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-day period. Upon the completion of each Asset Sale Offer (including a voluntary Asset Sale Offer with respect to all Excess Proceeds even though less than the Excess Proceeds Threshold), the amount of Excess Proceeds shall be reset to zero.
(d) To the extent that the aggregate principal amount of Notes and such Senior Indebtedness, as the case may be, tendered pursuant to an Asset Sale Offer is less than the Excess Proceeds, the Company may use any remaining Excess Proceeds for any purposes not otherwise prohibited under this Indenture. If the aggregate principal amount of Notes or Senior Indebtedness, as the case may be, surrendered by such holders thereof exceeds the amount of Excess Proceeds, such Notes or Senior Indebtedness, as the case may be, will be purchased on a pro rata basis based on the accreted value or principal amount of such Notes or Senior Indebtedness, as the case may be, tendered (and the Trustee or Registrar will select the tendered Notes of tendering holders on a pro rata basis, or such other basis in accordance with DTC procedures based on the amount of Notes tendered.
(e) Pending the final application of any Net Proceeds pursuant to this covenantProceeds, the holder of such Net Proceeds may apply such Net Proceeds temporarily to reduce Indebtedness outstanding under the Revolving Facility or any other a revolving credit facility or otherwise use invest such Net Proceeds in any manner not prohibited by this Agreement. Bidco Indenture.
(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 any Restricted Subsidiary, as regulations are applicable in connection with the case may be, may elect repurchase of the Notes pursuant to invest in Bidco and its Subsidiaries prior to receiving the Net Proceeds attributable to any given 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 set forth in this Indenture by virtue thereof.
(provided that such investment shall g) The provisions under this Indenture relating to the Company’s obligation to make an offer to repurchase the Notes as a result of an Asset Sale may be made no earlier than execution of a definitive agreement for the relevant Asset Sale) and deem the amount so invested to be applied pursuant to and in accordance with clause (b)(ii) above waived or modified, with respect to such Asset Salethe Notes, with the written consent of the Holders of a majority in principal amount of the Notes then Outstanding.
Appears in 2 contracts
Samples: Indenture (Valvoline Inc), Indenture (Ashland Inc.)
Asset Sales. (a) Bidco MHGE Holdings shall not, and shall not permit any of its the Restricted Subsidiaries to, consummate cause or make an Asset Sale, unless:
unless (ix) Bidco MHGE Holdings or such any Restricted Subsidiary, as the case may be, receives consideration at the time of such Asset Sale at least equal to the Fair Market Value (as determined at the time of contractually agreeing to such Asset Salein good faith by MHGE Holdings) of the assets sold or otherwise disposed of; and
, and (iiy) except in the case of a Permitted Asset Swap, if the property or assets sold or otherwise disposed of have a Fair Market Value in excess of the greater of $375,000,000 and 50% of Consolidated EBITDA for the most recently ended Test Period at the time of such disposition, calculated on a Pro Forma Basis, at least 75% of the consideration therefor received by Bidco MHGE Holdings or such Restricted Subsidiary, as the case may be, is in the form of cash or Cash Equivalents; provided that the amount of:
(Ai) any liabilities, contingent liabilities (as shown on MHGE Holdings’ or otherwise, of Bidco or such a Restricted Subsidiary, ’s most recent balance sheet or in the notes thereto) of MHGE Holdings or a Restricted Subsidiary (other than liabilities that are by their terms subordinated to the Secured Obligations Notes or any Guarantee) that are owed to Bidco or a Restricted Subsidiary that (x) are assumed by the transferee of any such assets (or a third party in connection with such transfer) or (y) that are otherwise cancelled or terminated in connection with the transaction with such transferee (other than intercompany debt owed to Bidco or its Restricted Subsidiaries) and, in each case, for which Bidco and all of its Restricted Subsidiaries have been validly released;transferee,
(Bii) any securities, notes or other obligations or other securities or assets received by Bidco MHGE Holdings or such Restricted Subsidiary from such transferee that are converted by Bidco MHGE Holdings or such Restricted Subsidiary into cash or Cash Equivalents within 180 days of the receipt thereof (to the extent of the cash or Cash Equivalents received) within 180 days following the closing of such Asset Sale;),
(Ciii) Indebtedness of any Restricted Subsidiary that ceases to be is no longer a Restricted Subsidiary as a result of such Asset Sale (other than intercompany debt owed to Bidco or any Restricted Subsidiary)Sale, to the extent that Bidco MHGE Holdings and each other Restricted Subsidiary are released from any guarantee of payment of the principal amount of such Indebtedness in connection with such the Asset Sale in accordance with the terms of this AgreementSale,
(Div) consideration consisting of Indebtedness of a Borrower or a Guarantor MHGE Holdings (other than intercompany debt owed to Bidco or any Restricted Subsidiary and other than Subordinated Indebtedness) received after the Effective Issue Date from Persons who are not Bidco, MHGE Holdings or any Restricted Subsidiary;, and
(Ev) any Designated Non-cash Consideration received by Bidco MHGE Holdings or such any Restricted Subsidiary in such Asset Sale having an aggregate Fair Market Value (as determined in good faith by MHGE Holdings), taken together with all other Designated Non-cash Consideration received pursuant to this clause (ESection 4.06(a)(v) that is at that time outstanding, not to exceed the greater of $225,000,000 100.0 million and 304.0% of Consolidated EBITDA for the most recently ended Test Period Total Assets at the time of the receipt of such Designated Non-cash Consideration, calculated on a Pro Forma Basis Consideration (with the Fair Market Value of each such item of Designated Non-cash Consideration being measured pursuant to this clause (E) at Bidco’s option, either at the time of contractually agreeing to such Asset Sale or at the time received and, in either case, and without giving effect to subsequent changes in value); and
(F) any Investment, Capital Stock, assets, property or capital or other expenditure of the kind referred to in Section 6.04(b)(ii) shall be deemed to be Cash Equivalents for the purposes of this provision and for no other purposeSection 4.06(a).
(b) Within the Reinvestment Period 365 days after Bidco’s MHGE Holdings’ or any Restricted Subsidiary’s receipt of the Net Proceeds of any Asset Sale, Bidco MHGE Holdings or such Restricted Subsidiary shall may apply an amount equal to the Net Proceeds from such Asset Sale,, at its option:
(i) to repay (A) Indebtedness constituting First-Priority Obligations (and, if the Indebtedness repaid is revolving credit Indebtedness, to prepay Loans correspondingly reduce commitments with respect thereto, and, if MHGE Holdings shall so reduce First-Priority Obligations, the Issuers will equally and ratably reduce Notes Obligations in any manner set forth in clause (D) below), (B) Indebtedness of a Restricted Subsidiary that is not a Subsidiary Guarantor, (C) Obligations under the Notes or (D) other Pari Passu Indebtedness other than First-Priority Obligations so long as the Net Proceeds are with respect to assets not constituting Collateral (provided that if an Issuer or any Subsidiary Guarantor shall so reduce Pari Passu Indebtedness under this clause (D), the Issuers will equally and ratably reduce Notes Obligations pursuant to Section 3.01, through open-market purchases (provided that such purchases are at or above 100% of the principal amount thereof or, in the event that the Notes were issued with significant original issue discount, 100% of the accreted value thereof) or by making an offer (in accordance with Section 2.10(c) or (Bthe procedures set forth below for an Asset Sale Offer) to all holders to purchase at a purchase price equal to 100% of the extent not required to prepay Loans pursuant to Section 2.10(cprincipal 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 be retained by Bidco and/or Restricted SubsidiariesMHGE Holdings or an Affiliate of MHGE Holdings; orand
(ii) to make investments an investment in Bidco 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 MHGE Holdings), assets, or property or capital expenditures, in each case (A) used or useful in a Similar Business or (B) that replace the properties and its Subsidiariesassets that are the subject of such Asset Sale; In the case of Section 4.06(b)(ii), a binding commitment shall be treated as a permitted application of the Net Proceeds from the date of such commitment until the 18-month anniversary of the date of the receipt of such Net Proceeds; provided that Bidco and the Restricted Subsidiaries will be deemed to have complied with this clause (ii) if and to the extent that, within the Reinvestment Period after the Asset Sale that generated the Net Proceeds, Bidco or such Restricted Subsidiary has entered into and not abandoned or rejected a binding agreement or letter of intent to consummate any such investment described in this clause (ii) 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 such binding commitment is later cancelled canceled or terminated for any reason before the such Net Proceeds are applied in connection therewithso applied, Bidco then such Net Proceeds shall constitute Excess Proceeds unless MHGE Holdings or such Restricted Subsidiary enters into another Acceptable Commitment binding commitment (a “Second Commitment”) within 180 days six months of such cancellation or terminationtermination of the prior binding commitment; provided provided, further, that if any MHGE Holdings or such Restricted Subsidiary may only enter into a Second Commitment under the foregoing provision one time with respect to each Asset Sale and to the extent such Second Commitment is later cancelled or terminated for any reason before such Net Proceeds are appliedapplied or are not applied within 180 days of such Second Commitment, then Bidco or such Restricted Subsidiary Net Proceeds shall prepay the Loans in accordance with Section 2.10(c).
(c) constitute Excess Proceeds. Pending the final application of any Net Proceeds pursuant to this covenant, the holder of such Net Proceeds Proceeds, MHGE Holdings or such Restricted Subsidiary may apply such Net Proceeds temporarily to reduce Indebtedness outstanding under the Revolving Facility or any other a revolving credit facility facility, if any, or otherwise use invest such Net Proceeds in any manner not prohibited by this AgreementIndenture. Bidco or Any Net Proceeds from any Restricted SubsidiaryAsset Sale that are not applied as provided and within the time period set forth in the first sentence of this Section 4.06(b) (it being understood that any portion of such Net Proceeds used to make an offer to purchase 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 case aggregate amount of Excess Proceeds exceeds $50.0 million, the Issuers shall make an offer to all holders of Notes (and, at the option of the Issuers, to holders of any other First-Priority Obligations or, if the Asset Sale is not with respect to Collateral, other Pari Passu Indebtedness) (an “Asset Sale Offer”) to purchase the maximum principal amount of Notes (and such First-Priority Obligations or other Pari Passu Indebtedness), that is at least $2,000 and an integral multiple of $1,000 in excess thereof that may bebe 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 First-Priority Obligations or other 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 First-Priority Obligations or other Pari Passu Indebtedness, such lesser price, if any, as may elect be provided for by the terms of such First-Priority Obligations or other Pari Passu Indebtedness), to invest the date fixed for the closing of such offer, in Bidco 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 $50.0 million by mailing, or delivered electronically if held by the Depository, 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 First-Priority Obligations or other 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 any purpose that is not prohibited by this Indenture. If the aggregate principal amount of Notes (and such First-Priority Obligations or other 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 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) 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 Subsidiaries prior 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 receiving the Trustee as provided above, MHGE 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 attributable from the Asset Sales pursuant to any given which such Asset Sale Offer is being made and (provided 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 Parent or a Subsidiary is acting as the Paying Agent, segregate and hold in trust) an amount equal to the Excess Proceeds to be invested in Cash Equivalents, as directed in writing by MHGE 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 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.
(e) 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 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 investment holder is withdrawing his election to have such Note purchased. If at the end of the Offer Period more Notes (and such First-Priority Obligations or other 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 to the extent practicable, by lot or by such other method as the Trustee shall deem fair and appropriate (and in such manner as complies with the requirements of the Depository, if applicable); provided that no earlier Notes of $2,000 or less shall be purchased in part. Selection of such First-Priority Obligations or other Pari Passu Indebtedness shall be made pursuant to the terms of such First-Priority Obligations or other Pari Passu Indebtedness.
(f) Notices of an Asset Sale Offer shall be mailed by the Issuers by first class mail, postage prepaid, or delivered electronically if held by the Depository, at least 30 but not more than execution 60 days before the purchase date to each holder of a definitive agreement for the relevant Asset Sale) and deem the amount so invested Notes at such holder’s registered address. If any Note is to be applied pursuant to and purchased in accordance with clause (b)(ii) above with respect part only, any notice of purchase that relates to such Asset SaleNote shall state the portion of the principal amount thereof that has been or is to be purchased.
Appears in 2 contracts
Samples: Indenture (McGraw-Hill Interamericana, Inc.), Indenture (McGraw-Hill Global Education LLC)
Asset Sales. (a) Bidco The Issuer shall not, and shall not permit any of its Restricted Subsidiaries to, consummate cause or make an Asset Sale, unless:
unless (ix) Bidco the Issuer or such any of its Restricted SubsidiarySubsidiaries, as the case may be, receives consideration at the time of such Asset Sale at least equal to the Fair Market Value (as determined at in good faith by the time of contractually agreeing to such Asset SaleIssuer) of the assets sold or otherwise disposed of; and
of and (iiy) except in the case of a Permitted Asset Swap, if the property or assets sold or otherwise disposed of have a Fair Market Value in excess of the greater of $375,000,000 and 50% of Consolidated EBITDA for the most recently ended Test Period at the time of such disposition, calculated on a Pro Forma Basis, at least 75% of the consideration therefor received by Bidco the Issuer or such Restricted Subsidiary, as the case may be, is in the form of cash or Cash Equivalents; provided that the amount of:
(Ai) any liabilities, contingent or otherwise, of Bidco liabilities (as shown on the Issuer’s or such Restricted Subsidiary, ’s most recent balance sheet or in the notes thereto) of the Issuer or any Restricted Subsidiary of the Issuer (other than liabilities that are by their terms subordinated to the Secured Obligations or Notes) that are owed to Bidco or a Restricted Subsidiary that (x) are assumed by the transferee of any such assets (or a third party in connection with such transfer) or (y) that are otherwise cancelled or terminated in connection with the transaction with such transferee (other than intercompany debt owed to Bidco or its Restricted Subsidiaries) and, in each case, for which Bidco and all of its Restricted Subsidiaries have been validly released;transferee,
(Bii) any securities, notes or other obligations or other securities or assets received by Bidco the Issuer or such Restricted Subsidiary of the Issuer from such transferee that are converted by Bidco the Issuer or such Restricted Subsidiary of the Issuer into cash or Cash Equivalents within 180 days of the receipt thereof (to the extent of the cash or Cash Equivalents received) within 180 days following the closing of such Asset Sale;
(C) Indebtedness of any Restricted Subsidiary that ceases to be a Restricted Subsidiary as a result of such Asset Sale (other than intercompany debt owed to Bidco or any Restricted Subsidiary), to the extent that Bidco and each other Restricted Subsidiary are released from any guarantee of payment of the principal amount of such Indebtedness in connection with such Asset Sale in accordance with the terms of this Agreement,
(D) consideration consisting of Indebtedness of a Borrower or a Guarantor (other than intercompany debt owed to Bidco or any Restricted Subsidiary and other than Subordinated Indebtedness) received after the Effective Date from Persons who are not Bidco, Holdings or any Restricted Subsidiary;
(Eiii) any Designated Non-cash Consideration received by Bidco the Issuer or such any of its Restricted Subsidiary Subsidiaries in such Asset Sale having an aggregate Fair Market Value Value, taken together with all other Designated Non-cash Consideration received pursuant to this clause (Eiii) that is at that time outstanding, not to exceed the greater of $225,000,000 and 306.25% of Consolidated EBITDA for Total Assets of the most recently ended Test Period Issuer at the time of the receipt of such Designated Non-cash Consideration, calculated on a Pro Forma Basis Consideration (with the Fair Market Value of each such item of Designated Non-cash Consideration being measured pursuant to this clause (E) at Bidco’s option, either at the time of contractually agreeing to such Asset Sale or at the time received and, in either case, and without giving effect to subsequent changes in value); ,
(iv) any Indebtedness of any Restricted Subsidiary that is no longer a Restricted Subsidiary as a result of such Asset Sale, to the extent that the Issuer and each other Restricted Subsidiary are released from any guarantee of payment of such Indebtedness in connection with the Asset Sale, and
(Fv) any Investment, Capital Stock, assets, property or capital or other expenditure consideration consisting of Indebtedness of the kind referred to Issuer (other than Subordinated Indebtedness) received after the Issue Date from Persons who are not the Issuer or any Restricted Subsidiary in Section 6.04(b)(ii) connection with the Asset Sale and that is cancelled shall be deemed to be Cash Equivalents for the purposes of this provision and for no other purposeSection 4.06(a).
(b) Within 485 days after the Reinvestment Period after BidcoIssuer’s or any Restricted SubsidiarySubsidiary of the Issuer’s receipt of the Net Proceeds of any Asset SaleSale (or Event of Loss Proceeds), Bidco the Issuer or such Restricted Subsidiary shall of the Issuer may apply an amount equal to the Net Proceeds from such Asset Sale,Sale (together with any Event of Loss Proceeds), at its option:
(i) to permanently reduce Obligations under Secured Indebtedness or Pari Passu Indebtedness (A) to prepay Loans provided that if the Issuer 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 Issuer’s guarantee of Indebtedness of any Restricted Subsidiary of the Issuer), the Issuer shall 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 Section 2.10(cthe 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 prepaid) or (B) 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 if an offer to purchase any Indebtedness of the Issuer or its Restricted Subsidiaries is made in accordance with the terms of such Indebtedness, the obligation to permanently reduce Indebtedness of the Issuer 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 required accepted by the holders thereof, and no Net Proceeds in the amount of such offer will be deemed to prepay Loans pursuant to Section 2.10(c), to be retained by Bidco and/or Restricted Subsidiaries; orexist following such offer,
(ii) to make investments an investment in Bidco 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 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 Issuer), properties or assets that replace the properties and its Subsidiariesassets that are the subject of such Asset Sale or Event of Loss; provided that Bidco and in the Restricted Subsidiaries will be deemed to have complied with this clause case of clauses (ii) if and to the extent that(iii) above, within the Reinvestment Period after the Asset Sale that generated a binding commitment shall be treated as a permitted application of the Net Proceeds, Bidco or such Restricted Subsidiary has entered into and not abandoned or rejected a binding agreement or letter of intent to consummate any such investment described in this clause (ii) with Proceeds from the good faith expectation that such Net Proceeds will be applied to satisfy such commitment within 180 days date of such commitment (an “Acceptable Commitment”) and, in the event any such binding commitment is later cancelled or terminated for any reason before the Net Proceeds are applied in connection therewith, Bidco or such Restricted Subsidiary enters into another Acceptable Commitment (a “Second Commitment”) within 180 days of such cancellation or termination; provided that if any Second Commitment is later cancelled canceled or terminated for any reason before such Net Proceeds are so applied, then Bidco the Issuer or such Restricted Subsidiary shall prepay enters into another binding commitment within nine months of such cancellation or termination of the Loans in accordance with Section 2.10(c).
(c) prior binding commitment. Pending the final application of any such Net Proceeds pursuant to this covenant(or Event of Loss Proceeds), the holder 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 (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 4.06(b) (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 (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 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 Notes (and such Pari Passu Indebtedness) that is an integral multiple of $1,000, provided that no notes of $2,000 or less shall be purchased in part, that may apply 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 Net 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 Pari Passu Indebtedness), to but excluding 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 temporarily within ten Business Days after the date that Excess Proceeds exceed $55.0 million by delivering the notice required pursuant to reduce Indebtedness outstanding 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, the Issuer 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 principal amount of the Notes (and such Pari Passu Indebtedness) to be purchased will be determined pro rata by the Issuer based upon the principal amount 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, by lot or by such other method as Trustee shall deem fair and appropriate (and in such manner as complies with applicable legal requirements and, if the Notes are in global form, the requirements of the Depository); provided, however, that no Notes (or Pari Passu Indebtedness) of $2,000 or less shall be purchased in part. 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 Revolving Facility or Exchange Act and any other revolving credit facility securities laws and regulations to the extent such laws or otherwise use such Net Proceeds 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 manner 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 prohibited be deemed to have breached its obligations described in this Indenture by this Agreement. Bidco or any Restricted Subsidiaryvirtue 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 case may beamount of the Excess Proceeds, may elect to invest in Bidco and its Subsidiaries prior to receiving (ii) the allocation of the Net Proceeds attributable from the Asset Sales pursuant to any given which such Asset Sale Offer is being made and (provided that iii) the compliance of such investment allocation with the provisions of Section 4.06(b). On such date, the Issuer shall be made no earlier than execution of also irrevocably deposit with the Trustee or with a definitive agreement for Paying Agent (or, if the relevant Asset SaleIssuer or a Wholly-Owned Restricted Subsidiary is acting as a Paying Agent, segregate and hold in trust) and deem an amount equal to the amount so invested Excess Proceeds to be applied pursuant invested in Cash Equivalents, as directed in writing by the Issuer, and to and be held for payment in accordance with clause the provisions of this Section 4.06. Upon the expiration of the period for which the Asset Sale Offer remains open (b)(iithe “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) above 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 respect 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 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.
(f) Notice of an Asset Sale Offer shall be delivered by first class mail, postage prepaid, or electronically through DTC at least 30 but not more than 60 days before the purchase date to each Holder at such Holder’s registered address. If any Note is to be purchased in part only, any notice of purchase that relates to such Asset SaleNote shall state the portion of the principal amount thereof that has been or is to be purchased.
(g) If Notes tendered are in certificated form, 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: Indenture (Intelsat S.A.), Indenture (Intelsat S.A.)
Asset Sales. (a) Bidco shall The Issuer will not, and shall will not permit any of its Restricted Subsidiaries to, consummate an Asset Sale, Sale unless:
(i1) Bidco the Issuer (or such the Restricted Subsidiary, as the case may be, ) receives consideration at the time of such the Asset Sale at least equal to the Fair Market Value (as determined at the time of contractually agreeing to such Asset Sale) of the assets or Equity Interests issued or sold or otherwise disposed of; and
(ii2) except in the case of a Permitted Asset Swap, if the property or assets sold or otherwise disposed of have a Fair Market Value in excess of the greater of $375,000,000 and 50% of Consolidated EBITDA for the most recently ended Test Period at the time of such disposition, calculated on a Pro Forma Basis, at least 75% of the consideration therefor received in the Asset Sale by Bidco the Issuer or such Restricted Subsidiary, as the case may be, Subsidiary is in the form of cash cash, Cash Equivalents or Cash Equivalents; provided that Marketable Securities. For purposes of this provision, each of the amount offollowing shall be deemed to be cash:
(A) any liabilities, contingent liabilities of the Issuer or otherwise, of Bidco or such any Restricted Subsidiary, Subsidiary (other than contingent liabilities and liabilities that are by their terms subordinated to the Secured Obligations Notes or any Note Guarantee) that are owed to Bidco or a Restricted Subsidiary that (x) are assumed by the transferee of any such assets (or a third party in connection with such transfer) or (y) are otherwise cancelled or terminated in connection with the transaction with such transferee (other than intercompany debt owed to Bidco or its Restricted Subsidiaries) and, in each caseas a result of which, for which Bidco and all of its the Issuer or such Restricted Subsidiaries have been validly releasedSubsidiary is released from further liability;
(B) any securities, notes or notes, other obligations or assets received by Bidco the Issuer or any such Restricted Subsidiary from such transferee that are converted by Bidco the Issuer or such Restricted Subsidiary into cash or Cash Equivalents (within 180 days of the receipt thereof, to the extent of the cash or Cash Equivalents received) within 180 days following the closing of such Asset Salereceived in that conversion;
(C) Indebtedness of any Restricted Subsidiary that ceases to be a Restricted Subsidiary as a result of such Asset Sale (other than intercompany debt owed to Bidco or any Restricted Subsidiary), to the extent that Bidco and each other Restricted Subsidiary are released from any guarantee of payment of the principal amount of such Indebtedness in connection with such Asset Sale in accordance with the terms of this Agreement,
(D) consideration consisting of Indebtedness of a Borrower or a Guarantor (other than intercompany debt owed to Bidco or any Restricted Subsidiary and other than Subordinated Indebtedness) received after the Effective Date from Persons who are not Bidco, Holdings or any Restricted Subsidiary;
(E) any Designated Non-cash Consideration received by Bidco the Issuer or such any of its Restricted Subsidiary Subsidiaries in such Asset Sale having an Sale; provided that the aggregate Fair Market Value of such Designated Non-cash Consideration, taken together with the Fair Market Value at the time of receipt of all other Designated Non-cash Consideration received pursuant to this clause (EC) 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 $225,000,000 and 30(x) 7.5% of Consolidated EBITDA for the most recently ended Test Period Total Tangible Assets at the time of the receipt of such Designated Non-cash Consideration, calculated on a Pro Forma Basis Consideration (with the Fair Market Value of each such item of Designated Non-cash Consideration being measured pursuant to this clause (E) at Bidco’s option, either at the time of contractually agreeing to such Asset Sale or at the time received and, in either case, and without giving effect to subsequent changes in value)) and (y) $750 million; and
(FD) any Investment, Capital Stock, assets, property Stock or capital or other expenditure assets of the kind referred to in Section 6.04(b)(ii) shall be deemed to be Cash Equivalents for purposes of this provision and for no other purpose.
clause (b) Within the Reinvestment Period after Bidco’s or any Restricted Subsidiary’s receipt of the Net Proceeds of any Asset Sale, Bidco or such Restricted Subsidiary shall apply an amount equal to the Net Proceeds from such Asset Sale,
(i) (A) to prepay Loans or Indebtedness in accordance with Section 2.10(c2) or (B4) to of the extent not required to prepay Loans pursuant to next paragraph of this Section 2.10(c), to be retained by Bidco and/or Restricted Subsidiaries; or
(ii) to make investments in Bidco and its Subsidiaries; provided that Bidco and the Restricted Subsidiaries will be deemed to have complied with this clause (ii) if and to the extent that, within the Reinvestment Period 4.08. Within 450 days after the Asset Sale that generated the Net Proceeds, Bidco or such Restricted Subsidiary has entered into and not abandoned or rejected a binding agreement or letter of intent to consummate any such investment described in this clause (ii) 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 such commitment is later cancelled or terminated for any reason before the Net Proceeds are applied in connection therewith, Bidco or such Restricted Subsidiary enters into another Acceptable Commitment (a “Second Commitment”) within 180 days of such cancellation or termination; provided that if any Second Commitment is later cancelled or terminated for any reason before such Net Proceeds are applied, then Bidco or such Restricted Subsidiary shall prepay the Loans in accordance with Section 2.10(c).
(c) Pending the final application receipt of any Net Proceeds pursuant to this covenantfrom an Asset Sale, the holder of such Net Proceeds may apply such Net Proceeds temporarily to reduce Indebtedness outstanding under Issuer (or the Revolving Facility or any other revolving credit facility or otherwise use such Net Proceeds in any manner not prohibited by this Agreement. Bidco or any applicable Restricted Subsidiary, as the case may be) may:
(a) apply such Net Proceeds, may elect at its option:
(1) to invest repay (w) Indebtedness and other Obligations under a Credit Facility, (x) any Indebtedness that was secured by the assets sold in Bidco such Asset Sale, (y) other pari passu Indebtedness (provided that the Issuer shall also equally and its Subsidiaries prior ratably reduce Indebtedness under the Notes by making an offer, in accordance with the procedures set forth below for an Asset Sale, to receiving 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), or (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 attributable pursuant to any given Asset Sale clauses (a) (2), (3) or (4) above, provided that such investment binding commitment shall be treated as a permitted application of the Net Proceeds from the date of such commitment until the earlier of (x) the date on which such acquisition or expenditure is consummated, and (y) the 180th day following the expiration of the aforementioned 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 Indenture. Any Net Proceeds from Asset Sales that are not applied or invested as provided in the second paragraph of this Section 4.08 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); provided that no earlier 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 execution 60 days before the purchase date to each Holder of a definitive agreement for the relevant Asset Sale) and deem the amount so invested Notes at such Holder’s registered address. If any Note is to be applied pursuant to and purchased in accordance with clause (b)(ii) above with respect part only, any notice of purchase that relates to such Asset SaleNote 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. (a) Bidco The Issuer shall not, and shall not permit any of its Restricted Subsidiaries to, consummate cause or make an Asset Sale, unless:
(i) Bidco the Issuer or such any of its Restricted SubsidiarySubsidiaries, as the case may be, receives consideration at the time of such Asset Sale at least equal to the Fair Market Value (as determined at in good faith by the time of contractually agreeing to such Asset SaleIssuer) of the assets sold or otherwise disposed of; and
(ii) except in the case of a Permitted Asset Swap, if the property or assets sold or otherwise disposed of have a Fair Market Value in excess of the greater of $375,000,000 and 50% of Consolidated EBITDA for the most recently ended Test Period at the time of such disposition, calculated on a Pro Forma Basis, at least 75% of the consideration therefor received by Bidco the Issuer or such Restricted Subsidiary, as the case may be, is in the form of cash or Cash EquivalentsEquivalents or Replacement Assets; provided provided, however that the amount of:
(A1) any liabilities, contingent or otherwise, of Bidco liabilities (as shown on the Issuer’s or such Restricted Subsidiary, ’s most recent balance sheet or in the notes thereto) of the Issuer or such Restricted Subsidiary (other than liabilities that are by their terms subordinated to the Secured Obligations or Notes) that are owed to Bidco or a Restricted Subsidiary that (x) are assumed by the transferee of any such assets (or a third party in connection with Equity Interests pursuant to an agreement that releases or indemnifies the Issuer or such transfer) or (y) are otherwise cancelled or terminated in connection with Restricted Subsidiary, as the transaction with such transferee (other than intercompany debt owed to Bidco or its Restricted Subsidiaries) andcase may be, in each case, for which Bidco and all of its Restricted Subsidiaries have been validly releasedfrom further liability;
(B2) any securities, notes Notes or other obligations or other securities or assets received by Bidco the Issuer or such Restricted Subsidiary from such transferee that are converted by Bidco the Issuer or such Restricted Subsidiary into cash or Cash Equivalents within 180 days of the receipt thereof (to the extent of the cash or Cash Equivalents received) within 180 days following the closing of such Asset Sale;); and
(C) Indebtedness of any Restricted Subsidiary that ceases to be a Restricted Subsidiary as a result of such Asset Sale (other than intercompany debt owed to Bidco or any Restricted Subsidiary), to the extent that Bidco and each other Restricted Subsidiary are released from any guarantee of payment of the principal amount of such Indebtedness in connection with such Asset Sale in accordance with the terms of this Agreement,
(D) consideration consisting of Indebtedness of a Borrower or a Guarantor (other than intercompany debt owed to Bidco or any Restricted Subsidiary and other than Subordinated Indebtedness) received after the Effective Date from Persons who are not Bidco, Holdings or any Restricted Subsidiary;
(E3) any Designated Non-cash Consideration received by Bidco the Issuer or such any of its Restricted Subsidiary Subsidiaries in such Asset Sale having an aggregate Fair Market Value Value, taken together with all other Designated Non-cash Consideration received pursuant to this clause (E3) that is at that time outstanding, not to exceed the greater of (x) $225,000,000 100.0 million and 30(y) 2.25% of Consolidated EBITDA for the most recently ended Test Period Total Assets, at the time of the receipt of such Designated Non-cash Consideration, calculated on a Pro Forma Basis Consideration (with the Fair Market Value of each such item of Designated Non-cash Consideration being measured pursuant to this clause (E) at Bidco’s option, either at the time of contractually agreeing to such Asset Sale or at the time received and, in either case, and without giving effect to subsequent changes in value); and
(F) any Investment, Capital Stock, assets, property or capital or other expenditure of the kind referred to in Section 6.04(b)(ii) shall each be deemed to be Cash Equivalents for the purposes of this provision and for no other purposeclause (ii).
(b) Within 365 days after the Reinvestment Period after BidcoIssuer’s or any Restricted Subsidiary’s receipt of the Net Cash Proceeds of any Asset Sale, Bidco 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 apply effect a corresponding reduction of commitments with respect thereto);
(iii) to make an amount equal to Investment in any one or more businesses (provided that if such Investment is in the Net Proceeds from 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,
(i) (A) to prepay Loans Sale or Indebtedness that are used or useful in accordance with Section 2.10(c) or (B) to the extent not required to prepay Loans pursuant to Section 2.10(c), to be retained by Bidco and/or Restricted Subsidiariesa Similar Business; or
(iiiv) to make investments in Bidco and its Subsidiariesany combination of the foregoing; provided that Bidco the Issuer and the its Restricted Subsidiaries will shall be deemed to have complied with this the provisions described in clause (iiiii) of this Section 3.7(b) if and to the extent that, within the Reinvestment Period 365 days after the Asset Sale that generated the Net Cash Proceeds, Bidco or such Restricted Subsidiary the Issuer has entered into and not abandoned or rejected a binding agreement to acquire the assets or letter Capital Stock of intent to consummate any such investment a Similar Business, make an Investment in Replacement Assets or make a capital expenditure in compliance with the provision described in this clause (iiiii) with the good faith expectation of this Section 3.7(b), and that such Net Proceeds will be applied to satisfy such commitment acquisition, purchase or capital expenditure is thereafter completed within 180 days after the end of such commitment (an “Acceptable Commitment”) and, in the event any such commitment is later cancelled or terminated for any reason before the Net Proceeds are applied in connection therewith, Bidco or such Restricted Subsidiary enters into another Acceptable Commitment (a “Second Commitment”) within 180 days of such cancellation or termination; provided that if any Second Commitment is later cancelled or terminated for any reason before such Net Proceeds are applied, then Bidco or such Restricted Subsidiary shall prepay the Loans in accordance with Section 2.10(c)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 covenantIndenture, 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 holder of such Net Issuer may use any remaining Excess Proceeds may apply such Net Proceeds temporarily to reduce Indebtedness outstanding under the Revolving Facility or for any other revolving credit facility or purpose not otherwise use such Net Proceeds in any manner not prohibited by this AgreementIndenture. Bidco or any Restricted SubsidiaryIf the aggregate principal amount of Notes and Pari Passu Indebtedness, as appropriate, surrendered by holders thereof exceeds the case may beamount of Excess Proceeds, may elect the Trustee shall select the Notes and the Issuer or its agent shall select such other Indebtedness to invest be purchased in Bidco and its Subsidiaries prior to receiving the Net Proceeds attributable to manner described below. Upon completion of any given such Asset Sale (provided that such investment Offer, the amount of Excess Proceeds shall be made no earlier than execution reset at zero.
(d) The Issuer shall comply with the requirements of a definitive agreement for Rule 14e-1 under the relevant Asset Sale) Exchange Act and deem any other securities laws and regulations to the amount so invested to be applied 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 accordance such manner as complies with clause (b)(ii) above applicable legal requirements); provided, that the selection of Notes for purchase shall not result Holder with respect a principal amount of Notes less than the minimum denomination to such Asset Salethe 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. Effect any Asset Sale, or agree to effect any Asset Sale, except that the following shall be permitted:
(a) Bidco 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 does not exceed fair market value for such Asset Sale, unless:(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) Bidco the 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 Restricted Subsidiary, as sale is in an arm’s-length transaction and the case may be, applicable Company receives consideration at the time of such Asset Sale at least equal to the Fair Market Value fair market value consideration (as determined at in good faith by such Company), (y) the time of contractually agreeing Collateral Agent shall have a First Priority perfected Lien on the assets acquired pursuant to such Asset Sale) of Swap at least to the same extent as the assets sold or otherwise disposed ofpursuant to such Asset Swap (immediately prior to giving effect thereto) and (z) the aggregate fair market value of all assets sold pursuant to this clause (i) shall not exceed $25 million in the aggregate since the Closing Date; andprovided 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 $25 million aggregate cap will not apply to such Asset Swap;
(iij) except 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 no Default is then continuing or would result therefrom, the arm’s-length sale or disposition for cash of Equity Interests in a Joint Venture Subsidiary for fair market value or the case issuance of Equity Interests in a Permitted Asset SwapJoint Venture Subsidiary; provided, if 176 however, that the property or assets aggregate fair market value of all such Equity Interests sold or otherwise disposed of have a Fair Market Value in excess of the greater of $375,000,000 and 50% of Consolidated EBITDA for the most recently ended Test Period at the time of such disposition, calculated on a Pro Forma Basis, at least 75% of the consideration therefor received by Bidco or such Restricted Subsidiary, as the case may be, is in the form of cash or Cash Equivalents; provided that the amount of:
(A) any liabilities, contingent or otherwise, of Bidco or such Restricted Subsidiary, other than liabilities that are by their terms subordinated to the Secured Obligations or that are owed to Bidco or a Restricted Subsidiary that (x) are assumed by the transferee of any such assets (or a third party in connection with such transfer) or (y) are otherwise cancelled or terminated in connection with the transaction with such transferee (other than intercompany debt owed to Bidco or its Restricted Subsidiaries) and, in each case, for which Bidco and all of its Restricted Subsidiaries have been validly released;
(B) any securities, notes or other obligations or assets received by Bidco or such Restricted Subsidiary from such transferee that are converted by Bidco or such Restricted Subsidiary into cash or Cash Equivalents (to the extent of the cash or Cash Equivalents received) within 180 days following the closing of such Asset Sale;
(C) Indebtedness of any Restricted Subsidiary that ceases to be a Restricted Subsidiary as a result of such Asset Sale (other than intercompany debt owed to Bidco or any Restricted Subsidiary), to the extent that Bidco and each other Restricted Subsidiary are released from any guarantee of payment of the principal amount of such Indebtedness in connection with such Asset Sale in accordance with the terms of this Agreement,
(D) consideration consisting of Indebtedness of a Borrower or a Guarantor (other than intercompany debt owed to Bidco or any Restricted Subsidiary and other than Subordinated Indebtedness) received after the Effective Date from Persons who are not Bidco, Holdings or any Restricted Subsidiary;
(E) any Designated Non-cash Consideration received by Bidco or such Restricted Subsidiary in such Asset Sale having an aggregate Fair Market Value taken together with all other Designated Non-cash Consideration received pursuant to this clause (Ek) that is at that time outstanding, following the Closing Date shall not to exceed the greater of $225,000,000 and 30% of Consolidated EBITDA for the most recently ended Test Period at the time of the receipt of such Designated Non-cash Consideration, calculated on a Pro Forma Basis (with the Fair Market Value of each such item of Designated Non-cash Consideration being measured pursuant to this clause (E) at Bidco’s option, either at the time of contractually agreeing to such Asset Sale or at the time received and, in either case, without giving effect to subsequent changes in value)300 million; and
(Fl) issuances of Equity Interests permitted under Section 6.13(b)(i), (ii), (iii), (iv) and (vi). To the extent the Required Lenders or such other number of Lenders whose consent is required under Section 11.02, as applicable, waive the provisions of this Section 6.06 with respect to the sale of any InvestmentCollateral or any Collateral is sold as permitted by this Section 6.06, Capital Stock, assets, property or capital or other expenditure and so long as the Lien of the kind referred Term Loan Administrative Agent or the Term Loan Collateral Agent (or any other Term Loan Agents) pursuant to the Term Loan Documents in Section 6.04(b)(iisuch Collateral is also released, such Collateral (unless sold to a Loan Party) shall be deemed to be Cash Equivalents for purposes of this provision sold free and for no other purpose.
(b) Within the Reinvestment Period after Bidco’s or any Restricted Subsidiary’s receipt clear of the Net Proceeds of Liens created by the Security Documents, and so long as the Loan Parties shall have provided the Agents such certificates or documents as any Asset Sale, Bidco or such Restricted Subsidiary Agent shall apply an amount equal reasonably request in order to the Net Proceeds from such Asset Sale,
(i) (A) to prepay Loans or Indebtedness in accordance with Section 2.10(c) or (B) to the extent not required to prepay Loans pursuant to Section 2.10(c), to be retained by Bidco and/or Restricted Subsidiaries; or
(ii) to make investments in Bidco and its Subsidiaries; provided that Bidco and the Restricted Subsidiaries will be deemed to have complied demonstrate compliance with this clause (ii) if and to the extent that, within the Reinvestment Period after the Asset Sale that generated the Net Proceeds, Bidco or such Restricted Subsidiary has entered into and not abandoned or rejected a binding agreement or letter of intent to consummate any such investment described in this clause (ii) 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 such commitment is later cancelled or terminated for any reason before the Net Proceeds are applied in connection therewith, Bidco or such Restricted Subsidiary enters into another Acceptable Commitment (a “Second Commitment”) within 180 days of such cancellation or termination; provided that if any Second Commitment is later cancelled or terminated for any reason before such Net Proceeds are applied, then Bidco or such Restricted Subsidiary shall prepay the Loans in accordance with Section 2.10(c).
(c) Pending the final application of any Net Proceeds pursuant to this covenant6.06, the holder of such Net Proceeds may apply such Net Proceeds temporarily to reduce Indebtedness outstanding under the Revolving Facility or any other revolving credit facility or otherwise use such Net Proceeds in any manner not prohibited by this Agreement. Bidco or any Restricted Subsidiary, Agents shall take all actions as the case may be, may elect Administrative Borrower reasonably requests in order to invest in Bidco and its Subsidiaries prior to receiving effect the Net Proceeds attributable to any given Asset Sale (provided that such investment shall be made no earlier than execution of a definitive agreement for the relevant Asset Sale) and deem the amount so invested to be applied pursuant to and in accordance with clause (b)(ii) above with respect to such Asset Saleforegoing.
Appears in 2 contracts
Samples: Credit Agreement (Novelis Inc.), Credit Agreement (Novelis South America Holdings LLC)
Asset Sales. (a) Bidco shall not, and shall not permit any of its Restricted Subsidiaries to, consummate Consummate an Asset Sale, unless:
(ia) Bidco the Borrower or such 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 fair market value (as determined at by the Borrower as of the time of contractually agreeing to such Asset Sale) of the assets sold or otherwise disposed of); and
(iib) except in the case of a Permitted Asset Swap, if the property or assets sold or otherwise disposed of have a Fair Market Value in excess of the greater of $375,000,000 and 50% of Consolidated EBITDA for the most recently ended Test Period at the time of such disposition, calculated on a Pro Forma Basis, at least 75% of the consideration therefor received by Bidco the Borrower or such Restricted Subsidiary, as the case may be, is in the form of cash or Cash EquivalentsPermitted Investments; provided that the amount of:
(Ai) any liabilities, contingent or otherwise, of Bidco liabilities (as reflected on the Borrower’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 Borrower or such 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 Borrower) of the Borrower or such Subsidiary, other than liabilities that are by their terms subordinated to the Secured Obligations or Loans, that are owed to Bidco or a Restricted Subsidiary that (x) are assumed by the transferee of any such assets (or a third party in connection with such transfer) or (y) are otherwise cancelled or terminated in connection with the transaction with such transferee (other than intercompany debt owed to Bidco or its Restricted Subsidiaries) and, in each case, and for which Bidco the Borrower and all of its Restricted Subsidiaries have been validly released;released by all creditors in writing,
(Bii) any securities, notes or other obligations or assets securities received by Bidco the Borrower or such Restricted Subsidiary from such transferee that are converted by Bidco the Borrower or such Restricted Subsidiary into cash or Cash Equivalents (to the extent of the cash or Cash Equivalents received) within 180 days following the closing of such Asset Sale;, and
(C) Indebtedness of any Restricted Subsidiary that ceases to be a Restricted Subsidiary as a result of such Asset Sale (other than intercompany debt owed to Bidco or any Restricted Subsidiary), to the extent that Bidco and each other Restricted Subsidiary are released from any guarantee of payment of the principal amount of such Indebtedness in connection with such Asset Sale in accordance with the terms of this Agreement,
(D) consideration consisting of Indebtedness of a Borrower or a Guarantor (other than intercompany debt owed to Bidco or any Restricted Subsidiary and other than Subordinated Indebtedness) received after the Effective Date from Persons who are not Bidco, Holdings or any Restricted Subsidiary;
(Eiii) any Designated Non-cash Consideration received by Bidco the Borrower or such Restricted Subsidiary in such Asset Sale having an aggregate Fair Market Value fair market value, taken together with all other Designated Non-cash Consideration received pursuant to this clause (Eiii) that is at that time outstanding, not to exceed the greater of $225,000,000 and 3010.0% of Consolidated EBITDA for the most recently ended Test Period Total Assets at the time of the receipt of such Designated Non-cash Consideration, calculated on a Pro Forma Basis (with the Fair Market Value fair market value of each such item of Designated Non-cash Consideration being measured pursuant to this clause (E) at Bidco’s option, either at the time of contractually agreeing to such Asset Sale or at the time received and, in either case, and without giving effect to subsequent changes in value); and
(F) any Investment, Capital Stock, assets, property or capital or other expenditure of the kind referred to in Section 6.04(b)(ii) shall be deemed to be Cash Equivalents cash for purposes of this provision and for no other purpose.
(b) , shall be deemed to be cash for purposes of this provision and for no other purpose. Within 365 days after the Reinvestment Period after Bidco’s or any Restricted Subsidiary’s receipt of the Net any Asset Sale Proceeds of any Asset Sale, Bidco the Borrower or such Restricted Subsidiary shall Subsidiary, at its option, may apply an amount equal to the Net 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;
(Aii) Obligations under Senior Indebtedness that is secured by a Lien, which Lien is permitted by the Loan Documents, and to prepay Loans 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 Indebtedness in accordance with Section 2.10(c) or another Subsidiary; or
(Biv) to the extent not required to prepay Loans permitted pursuant to Section 2.10(c6.09(b), Obligations under Permitted Junior Debt;
(b) to be retained by Bidco 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 Restricted Subsidiariesassets that are the subject of such Asset Sale; or
(iid) to make investments in Bidco any combination of clauses (a), (b) and its Subsidiaries(c) above; provided that Bidco and the Restricted Subsidiaries will be deemed to have complied with this clause (ii) if and to the extent that, within in the Reinvestment Period after case of clauses (b) and (c) above, a binding commitment shall be treated as a permitted application of the Asset Sale that generated Proceeds from the Net Proceeds, Bidco date of such commitment so long as the Borrower or such Restricted Subsidiary has entered enters into and not abandoned or rejected a binding agreement or letter of intent to consummate any such investment described in this clause (ii) 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, in the event any such commitment Acceptable Commitment is later cancelled or terminated for any reason before the Net Asset Sale Proceeds are applied in connection therewith, Bidco 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, then Bidco or such Restricted Subsidiary shall prepay the Loans in accordance with Section 2.10(c).
(c) 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 the Revolving Facility or any other revolving credit facility or otherwise use such Net Proceeds in any manner not prohibited by this Agreement. Bidco or any Restricted Subsidiary, as the case may be, may elect to invest in Bidco and its Subsidiaries prior to receiving the Net Proceeds attributable to any given Asset Sale (Proceeds shall constitute Excess Proceeds. Any Asset Sale Proceeds from the Asset Sale that are not invested or applied as provided that 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 investment Excess Proceeds shall be made no earlier than execution of a definitive agreement for the relevant Asset Sale) and deem the amount so invested deemed to be applied pursuant to and in accordance with clause (b)(ii) above with respect to such Asset Sale“Prepayment Excess Proceeds.”
Appears in 2 contracts
Samples: Revolving Credit Agreement (Nuance Communications, Inc.), Revolving Credit Agreement (Nuance Communications, Inc.)
Asset Sales. (a) Bidco Holdings shall not, and shall not permit any of its Restricted Subsidiaries to, consummate cause, make or suffer to exist an Asset Sale, unless:
(i1) Bidco 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 at the time of contractually agreeing to such Asset Sale) fair market value of the assets sold or otherwise disposed of; and
(ii2) except in the case of a Permitted Asset Swap, if the property or assets sold or otherwise disposed of have a Fair Market Value in excess of the greater of $375,000,000 and 50% of Consolidated EBITDA for the most recently ended Test Period at the time of such disposition, calculated on a Pro Forma Basis, at least 75% of the consideration therefor received by Bidco Holdings or such Restricted Subsidiary, as the case may be, is in the form of cash or Cash Equivalents; provided that the amount of:
(Aa) any liabilities, contingent liabilities (as shown on Holdings’ or otherwise, such Restricted Subsidiary’s most recent balance sheet or in the footnotes thereto) of Bidco Holdings or such Restricted Subsidiary, other than liabilities that are by their terms subordinated to the Secured Obligations or Notes, that are owed to Bidco or a Restricted Subsidiary that (x) are assumed by the transferee of any such assets (or a third party in connection with such transfer) or (y) are otherwise cancelled or terminated in connection with the transaction with such transferee (other than intercompany debt owed to Bidco or its Restricted Subsidiaries) and, in each case, and for which Bidco Holdings and all of its Restricted Subsidiaries have been validly released;released by all creditors in writing,
(Bb) any securities, notes or other obligations or assets securities received by Bidco Holdings or such Restricted Subsidiary from such transferee that are converted by Bidco Holdings or such Restricted Subsidiary into cash or Cash Equivalents (to the extent of the cash or Cash Equivalents received) within 180 120 days following the closing of such Asset Sale;, and
(C) Indebtedness of any Restricted Subsidiary that ceases to be a Restricted Subsidiary as a result of such Asset Sale (other than intercompany debt owed to Bidco or any Restricted Subsidiary), to the extent that Bidco and each other Restricted Subsidiary are released from any guarantee of payment of the principal amount of such Indebtedness in connection with such Asset Sale in accordance with the terms of this Agreement,
(D) consideration consisting of Indebtedness of a Borrower or a Guarantor (other than intercompany debt owed to Bidco or any Restricted Subsidiary and other than Subordinated Indebtedness) received after the Effective Date from Persons who are not Bidco, Holdings or any Restricted Subsidiary;
(Ec) any Designated Non-cash Consideration received by Bidco Holdings or such Restricted Subsidiary in such Asset Sale having an aggregate Fair Market Value fair market value, taken together with all other Designated Non-cash Consideration received pursuant to this clause (Ec) that is at that time outstanding, not to exceed the greater of $225,000,000 and 302.5% of Consolidated EBITDA for the most recently ended Test Period Total Assets at the time of the receipt of such Designated Non-cash Consideration, calculated on a Pro Forma Basis (with the Fair Market Value fair market value of each such item of Designated Non-cash Consideration being measured pursuant to this clause (E) at Bidco’s option, either at the time of contractually agreeing to such Asset Sale or at the time received and, in either case, and without giving effect to subsequent changes in value); and
(F) any Investment, Capital Stock, assets, property or capital or other expenditure of the kind referred to in Section 6.04(b)(ii) shall be deemed to be Cash Equivalents cash for purposes of this provision and for no other purpose.
(b) Within 365 days after the Reinvestment Period after Bidco’s or any Restricted Subsidiary’s receipt of the any Net Proceeds of any Asset Sale, Bidco Holdings or such Restricted Subsidiary shall Subsidiary, at its option, may apply an amount equal to the Net Proceeds from such Asset Sale,
(i) (A1) to prepay Loans 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), provided that the Issuer shall equally and ratably reduce Obligations under the Notes as provided under Section 3.07 hereof or Indebtedness 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 2.10(c4.10(c) or (Bhereof) to all Holders to purchase their Notes at 100% of the extent not required to prepay Loans pursuant to Section 2.10(c)principal amount thereof, to plus the amount of accrued but unpaid interest, if any, on the amount of Notes that would otherwise be retained by Bidco and/or Restricted Subsidiariesprepaid; or
(iid) Indebtedness of a Restricted Subsidiary that is not a Guarantor, other than Indebtedness owed to Holdings or another Restricted Subsidiary;
(2) to make investments (a) an Investment in Bidco 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 Bidco and the Restricted Subsidiaries will be deemed to have complied with this clause (ii) if and to the extent that, within in the Reinvestment Period after the Asset Sale that generated case of clauses (2) and (3) above, a binding commitment shall be treated as a permitted application of the Net ProceedsProceeds from the date of such commitment so long as Holdings, Bidco or such other Restricted Subsidiary has entered enters into and not abandoned or rejected a binding agreement or letter of intent to consummate any such investment described in this clause (ii) 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 such commitment Acceptable Commitment is later cancelled or terminated for any reason before the Net Proceeds are applied in connection therewith, Bidco 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 Bidco or such Restricted Subsidiary Net Proceeds shall prepay the Loans in accordance with Section 2.10(c)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 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 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 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 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 covenantSection 4.10, the holder of such Net Proceeds may apply such Net Proceeds temporarily to reduce Indebtedness outstanding under the Revolving Facility or any other a revolving credit facility or otherwise use invest such Net Proceeds in any manner not prohibited by this Agreement. Bidco 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 any Restricted Subsidiary, as regulations are applicable in connection with the case may be, may elect repurchase of the Notes pursuant to invest in Bidco and its Subsidiaries prior to receiving the Net Proceeds attributable to any given an Asset Sale (provided Offer. To the extent that such investment 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 made no earlier than execution of a definitive agreement for the relevant Asset Sale) and deem the amount so invested deemed to be applied pursuant to and have breached its obligations described in accordance with clause (b)(ii) above with respect to such Asset Salethis Indenture by virtue thereof.
Appears in 2 contracts
Samples: Indenture (Travelport LTD), Supplemental Indenture (Travelport LTD)
Asset Sales. (a) Bidco The Company shall not, and shall not permit any of its Restricted Subsidiaries to, consummate an Asset Sale, unless:
Sale unless (i) Bidco the Company or such the applicable Restricted Subsidiary, as the case may be, receives consideration at the time of such Asset Sale at least equal to the Fair Market Value (as determined at the time of contractually agreeing to such Asset Sale) fair market value of the assets sold or otherwise disposed ofof (as determined in good faith by the Company); and
(ii) except in solely with respect to any Asset Sale or series of related Asset Sales for which the case of a Permitted Asset Swap, if the property or assets sold or otherwise disposed of have a Fair Market Value Company and its Restricted Subsidiaries receive aggregate consideration in excess of the greater of $375,000,000 and 50% of Consolidated EBITDA for the most recently ended Test Period at the time of such disposition, calculated on a Pro Forma Basis50.0 million, at least 75% of the consideration therefor received by Bidco the Company or such the Restricted Subsidiary, as the case may be, is from such Asset Sale shall be in the form of cash or Cash Equivalents; provided that the amount of:
: (Aa) any liabilities, contingent or otherwise, of Bidco 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 Secured Obligations or Notes) that are owed to Bidco or a Restricted Subsidiary that (x) are assumed by the transferee of any such assets assets; (or a third party in connection with such transfer) or (y) are otherwise cancelled or terminated in connection with the transaction with such transferee (other than intercompany debt owed to Bidco or its Restricted Subsidiaries) and, in each case, for which Bidco and all of its Restricted Subsidiaries have been validly released;
(Bb) any securities, notes or other obligations or assets received by Bidco the Company or any such Restricted Subsidiary from such transferee that are converted by Bidco the Company or such Restricted Subsidiary into cash or Cash Equivalents within 180 days of the receipt thereof (to the extent of the cash or Cash Equivalents received) within 180 days following the closing of such Asset Sale;
); and (C) Indebtedness of any Restricted Subsidiary that ceases to be a Restricted Subsidiary as a result of such Asset Sale (other than intercompany debt owed to Bidco or any Restricted Subsidiary), to the extent that Bidco and each other Restricted Subsidiary are released from any guarantee of payment of the principal amount of such Indebtedness in connection with such Asset Sale in accordance with the terms of this Agreement,
(D) consideration consisting of Indebtedness of a Borrower or a Guarantor (other than intercompany debt owed to Bidco or any Restricted Subsidiary and other than Subordinated Indebtedness) received after the Effective Date from Persons who are not Bidco, Holdings or any Restricted Subsidiary;
(Ec) any Designated Non-cash Consideration received by Bidco the Company or such any of its Restricted Subsidiary Subsidiaries in such Asset Sale having an aggregate Fair Market Value fair market value, taken together with all other Designated Non-cash Consideration received pursuant to this clause (Ec) after December 14, 2010 that is at that time outstanding, not to exceed the greater of $225,000,000 150 million and 305% of Consolidated EBITDA for the most recently ended Test Period Total Assets at the time of the receipt of such Designated Non-cash Consideration, calculated on a Pro Forma Basis Consideration (with the Fair Market Value fair market value of each such item of Designated Non-cash Consideration being measured pursuant to this clause (E) at Bidco’s option, either at the time of contractually agreeing to such Asset Sale or at the time received and, in either case, and without giving effect to subsequent changes in value); and
(F) any Investment, Capital Stock, assets, property or capital or other expenditure of the kind referred to in Section 6.04(b)(ii) shall be deemed to be Cash Equivalents for purposes of this provision and for no other purpose.
(b) Within the Reinvestment Period after Bidco’s or any Restricted Subsidiary’s receipt of the Net Proceeds of any Asset Sale, Bidco or such Restricted Subsidiary shall apply an amount equal to the Net Proceeds from such Asset Sale,
(i) (A) to prepay Loans or Indebtedness in accordance with Section 2.10(c) or (B) to the extent not required to prepay Loans pursuant to Section 2.10(c), to be retained by Bidco and/or Restricted Subsidiaries; or
(ii) to make investments in Bidco and its Subsidiaries; provided that Bidco and the Restricted Subsidiaries will be deemed to have complied with this clause (ii) if and to the extent that, within the Reinvestment Period after the Asset Sale that generated the Net Proceeds, Bidco or such Restricted Subsidiary has entered into and not abandoned or rejected a binding agreement or letter of intent to consummate any such investment described in this clause (ii) 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”) andshall, in the event any such commitment is later cancelled or terminated for any reason before the Net Proceeds are applied in connection therewith, Bidco or such Restricted Subsidiary enters into another Acceptable Commitment each of (a “Second Commitment”) within 180 days of such cancellation or termination; provided that if any Second Commitment is later cancelled or terminated for any reason before such Net Proceeds are applied, then Bidco or such Restricted Subsidiary shall prepay the Loans in accordance with Section 2.10(ca).
(c) 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 the Revolving Facility or any other revolving credit facility or otherwise use such Net Proceeds in any manner not prohibited by this Agreement. Bidco or any Restricted Subsidiary, as the case may be, may elect to invest in Bidco and its Subsidiaries prior to receiving the Net Proceeds attributable to any given Asset Sale (provided that such investment shall be made no earlier than execution of a definitive agreement for the relevant Asset Sale) and deem the amount so invested to be applied pursuant to and in accordance with clause (b)(ii) above with respect to such Asset Sale.,
Appears in 2 contracts
Samples: Indenture (TransDigm Group INC), Indenture (TransDigm Group INC)
Asset Sales. (a) Bidco shall The Issuer will not, and shall will not permit any of its Restricted Subsidiaries to, consummate an Asset Sale, Sale unless:
(i1) Bidco the Issuer (or such the Restricted Subsidiary, as the case may be, ) receives consideration at the time of such the Asset Sale at least equal to the Fair Market Value (as determined at the time of contractually agreeing to such Asset Sale) of the assets or Equity Interests issued or sold or otherwise disposed of; and
(ii2) except in the case of a Permitted Asset Swap, if the property or assets sold or otherwise disposed of have a Fair Market Value in excess of the greater of $375,000,000 and 50% of Consolidated EBITDA for the most recently ended Test Period at the time of such disposition, calculated on a Pro Forma Basis, at least 75% of the consideration therefor received in the Asset Sale by Bidco the Issuer or such Restricted Subsidiary, as the case may be, Subsidiary is in the form of cash cash, Cash Equivalents or Cash Equivalents; provided that Marketable Securities. For purposes of this provision, each of the amount offollowing shall be deemed to be cash:
(A) any liabilities, contingent liabilities of the Issuer or otherwise, of Bidco or such any Restricted Subsidiary, Subsidiary (other than contingent liabilities and liabilities that are by their terms subordinated to the Secured Obligations Notes or any Note Guarantee) that are owed to Bidco or a Restricted Subsidiary that (x) are assumed by the transferee of any such assets (or a third party in connection with such transfer) or (y) are otherwise cancelled or terminated in connection with the transaction with such transferee (other than intercompany debt owed to Bidco or its Restricted Subsidiaries) and, in each caseas a result of which, for which Bidco and all of its the Issuer or such Restricted Subsidiaries have been validly releasedSubsidiary is released from further liability;
(B) any securities, notes or notes, other obligations or assets received by Bidco the Issuer or any such Restricted Subsidiary from such transferee that are converted by Bidco the Issuer or such Restricted Subsidiary into cash or Cash Equivalents (within 180 days of the receipt thereof, to the extent of the cash or Cash Equivalents received) within 180 days following the closing of such Asset Salereceived in that conversion;
(C) Indebtedness of any Restricted Subsidiary that ceases to be a Restricted Subsidiary as a result of such Asset Sale (other than intercompany debt owed to Bidco or any Restricted Subsidiary), to the extent that Bidco and each other Restricted Subsidiary are released from any guarantee of payment of the principal amount of such Indebtedness in connection with such Asset Sale in accordance with the terms of this Agreement,
(D) consideration consisting of Indebtedness of a Borrower or a Guarantor (other than intercompany debt owed to Bidco or any Restricted Subsidiary and other than Subordinated Indebtedness) received after the Effective Date from Persons who are not Bidco, Holdings or any Restricted Subsidiary;
(E) any Designated Non-cash Consideration received by Bidco the Issuer or such any of its Restricted Subsidiary Subsidiaries in such Asset Sale having an Sale; provided that the aggregate Fair Market Value of such Designated Non-cash Consideration, taken together with the Fair Market Value at the time of receipt of all other Designated Non-cash Consideration received pursuant to this clause (EC) 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 $225,000,000 and 30(x) 7.5% of Consolidated EBITDA for the most recently ended Test Period Total Tangible Assets at the time of the receipt of such Designated Non-cash Consideration, calculated on a Pro Forma Basis Consideration (with the Fair Market Value of each such item of Designated Non-cash Consideration being measured pursuant to this clause (E) at Bidco’s option, either at the time of contractually agreeing to such Asset Sale or at the time received and, in either case, and without giving effect to subsequent changes in value)) and (y) $750 million; and
(FD) any Investment, Capital Stock, assets, property Stock or capital or other expenditure assets of the kind referred to in Section 6.04(b)(ii) shall be deemed to be Cash Equivalents for purposes of this provision and for no other purpose.
clause (b) Within the Reinvestment Period after Bidco’s or any Restricted Subsidiary’s receipt of the Net Proceeds of any Asset Sale, Bidco or such Restricted Subsidiary shall apply an amount equal to the Net Proceeds from such Asset Sale,
(i) (A) to prepay Loans or Indebtedness in accordance with Section 2.10(c2) or (B4) to of the extent not required to prepay Loans pursuant to next paragraph of this Section 2.10(c), to be retained by Bidco and/or Restricted Subsidiaries; or
(ii) to make investments in Bidco and its Subsidiaries; provided that Bidco and the Restricted Subsidiaries will be deemed to have complied with this clause (ii) if and to the extent that, within the Reinvestment Period 4.08. Within 450 days after the Asset Sale that generated the Net Proceeds, Bidco or such Restricted Subsidiary has entered into and not abandoned or rejected a binding agreement or letter of intent to consummate any such investment described in this clause (ii) 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 such commitment is later cancelled or terminated for any reason before the Net Proceeds are applied in connection therewith, Bidco or such Restricted Subsidiary enters into another Acceptable Commitment (a “Second Commitment”) within 180 days of such cancellation or termination; provided that if any Second Commitment is later cancelled or terminated for any reason before such Net Proceeds are applied, then Bidco or such Restricted Subsidiary shall prepay the Loans in accordance with Section 2.10(c).
(c) Pending the final application receipt of any Net Proceeds pursuant to this covenantfrom an Asset Sale, the holder of such Net Proceeds may apply such Net Proceeds temporarily to reduce Indebtedness outstanding under Issuer (or the Revolving Facility or any other revolving credit facility or otherwise use such Net Proceeds in any manner not prohibited by this Agreement. Bidco or any applicable Restricted Subsidiary, as the case may be) may:
(a) apply such Net Proceeds, may elect at its option:
(1) to invest 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 Bidco such Asset Sale, (y) other pari passu Indebtedness (provided that the Issuer shall also equally and its Subsidiaries prior ratably reduce Indebtedness under the Notes by making an offer, in accordance with the procedures set forth below for an Asset Sale, to receiving 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), or (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 attributable pursuant to any given Asset Sale clauses (a) (2), (3) or (4) above, provided that such investment binding commitment shall be treated as a permitted application of the Net Proceeds from the date of such commitment until the earlier of (x) the date on which such acquisition or expenditure is consummated, and (y) the 180th day following the expiration of the aforementioned 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 Indenture. Any Net Proceeds from Asset Sales that are not applied or invested as provided in the second paragraph of this Section 4.08 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); provided that no earlier Notes of less than execution a minimum of a definitive agreement for $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 relevant Asset Sale) and deem the amount so invested purchase date to each Holder of Notes at such Holder’s registered address. If any Note is to be applied pursuant to and purchased in accordance with clause (b)(ii) above with respect part only, any notice of purchase that relates to such Asset SaleNote 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. (a) Bidco shall The Company will not, and shall will not permit any of its Restricted Subsidiaries to, consummate cause or make an Asset Sale, unless:
unless (ix) Bidco the Company or such any of its Restricted SubsidiarySubsidiaries, as the case may be, receives consideration at the time of such Asset Sale at least equal to the Fair Market Value (as determined at the time of contractually agreeing to such Asset Sale) of the assets or Capital Stock issued or sold or otherwise disposed of; and
, and (iiy) except in the case of a Permitted Asset Swap, if the property or assets sold or otherwise disposed of have a Fair Market Value in excess of the greater of $375,000,000 and 50% of Consolidated EBITDA for the most recently ended Test Period at the time of such disposition, calculated on a Pro Forma Basis, at least 75% of the consideration therefor received by Bidco the Company or such Restricted Subsidiary, as the case may be, is in the form of cash Cash Equivalents or Cash Equivalentsproperty or assets that are used or useful in the business of the Company or a Similar Business, or Capital Stock of any person primarily engaged in a Similar Business if as a result of the acquisition such Person becomes a Restricted Subsidiary; provided that the amount of:
(Aa) any liabilities, contingent or otherwise, of Bidco liabilities (as shown on the Company’s or such Restricted Subsidiary, ’s most recent available internal balance sheet or in the notes thereto) of the Company or any Restricted Subsidiary of the Company (other than liabilities that are by their terms subordinated to the Secured Obligations Loans or any Loan Guaranty) that are owed to Bidco or a Restricted Subsidiary that (x) are assumed by the transferee of any such assets (or a third party in connection with such transfer) or (y) are otherwise cancelled or terminated in connection with shall be deemed to be Cash Equivalents for the transaction with such transferee (other than intercompany debt owed to Bidco or its Restricted Subsidiaries) and, in each case, for which Bidco and all purposes of its Restricted Subsidiaries have been validly releasedthis provision;
(Bb) any securities, notes or other obligations or other securities or assets received by Bidco the Company or such Restricted Subsidiary of the Company from such transferee that are converted by Bidco the Company or such Restricted Subsidiary of the Company into cash or Cash Equivalents within 180 days of the receipt thereof (to the extent of the cash or received) shall be deemed to be Cash Equivalents received) within 180 days following for the closing purposes of such Asset Salethis provision;
(C) Indebtedness of any Restricted Subsidiary that ceases to be a Restricted Subsidiary as a result of such Asset Sale (other than intercompany debt owed to Bidco or any Restricted Subsidiary), to the extent that Bidco and each other Restricted Subsidiary are released from any guarantee of payment of the principal amount of such Indebtedness in connection with such Asset Sale in accordance with the terms of this Agreement,
(D) consideration consisting of Indebtedness of a Borrower or a Guarantor (other than intercompany debt owed to Bidco or any Restricted Subsidiary and other than Subordinated Indebtedness) received after the Effective Date from Persons who are not Bidco, Holdings or any Restricted Subsidiary;
(Ec) any Designated Non-cash Consideration received by Bidco the Company or such Restricted Subsidiary in such Asset Sale having an aggregate Fair Market Value Value, taken together with all other Designated Non-cash Consideration received pursuant to this clause (Ec) that is at that time outstanding, not to exceed the greater of $225,000,000 and 30% of Consolidated EBITDA for the most recently ended Test Period 50,000,000 at the time of the receipt of such Designated Non-cash ConsiderationConsideration shall be deemed to be Cash Equivalents for the purposes of this provision, calculated on a Pro Forma Basis (with the Fair Market Value of each such item of Designated Non-cash Consideration being measured pursuant to this clause (E) at Bidco’s option, either at the time of contractually agreeing to such Asset Sale or at the time received and, in either case, and without giving effect to subsequent changes in value); and
(F) any Investment, Capital Stock, assets, property or capital or other expenditure of the kind referred to in Section 6.04(b)(ii) shall be deemed to be Cash Equivalents for purposes of this provision and for no other purpose.
(b) Within the Reinvestment Period after Bidco’s or any Restricted Subsidiary’s receipt of the Net Proceeds of any Asset Sale, Bidco or such Restricted Subsidiary shall apply an amount equal to the Net Proceeds from such Asset Sale,
(i) (A) to prepay Loans or Indebtedness in accordance with Section 2.10(c) or (B) to the extent not required to prepay Loans pursuant to Section 2.10(c), to be retained by Bidco and/or Restricted Subsidiaries; or
(ii) to make investments in Bidco and its Subsidiaries; provided that Bidco and the Restricted Subsidiaries will be deemed to have complied with this clause (ii) if and to the extent that, within the Reinvestment Period after the Asset Sale that generated the Net Proceeds, Bidco or such Restricted Subsidiary has entered into and not abandoned or rejected a binding agreement or letter of intent to consummate any such investment described in this clause (ii) 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 such commitment is later cancelled or terminated for any reason before the Net Proceeds are applied in connection therewith, Bidco or such Restricted Subsidiary enters into another Acceptable Commitment (a “Second Commitment”) within 180 days of such cancellation or termination; provided that if any Second Commitment is later cancelled or terminated for any reason before such Net Proceeds are applied, then Bidco or such Restricted Subsidiary shall prepay the Loans in accordance with Section 2.10(c).
(c) 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 the Revolving Facility or any other revolving credit facility or otherwise use such Net Proceeds in any manner not prohibited by this Agreement. Bidco or any Restricted Subsidiary, as the case may be, may elect to invest in Bidco and its Subsidiaries prior to receiving the Net Proceeds attributable to any given Asset Sale (provided that such investment shall be made no earlier than execution of a definitive agreement for the relevant Asset Sale) and deem the amount so invested to be applied pursuant to and in accordance with clause (b)(ii) above with respect to such Asset Sale.;
Appears in 2 contracts
Samples: Credit Agreement (Office Depot Inc), Credit Agreement (Office Depot Inc)
Asset Sales. (a) Bidco Holdings shall not, and shall not permit any of its Restricted Subsidiaries Subsidiary to, consummate cause or make an Asset Sale, unless:
unless (ix) Bidco Holdings or such any of its Restricted SubsidiarySubsidiaries, as the case may be, receives consideration at the time of such Asset Sale at least equal to the Fair Market Value (if the consideration for such Asset Sale is less than or equal to $25.0 million, as determined at in good faith by Holdings or if the time of contractually agreeing to consideration for such Asset SaleSale exceeds $25.0 million, as determined by an Independent Financial Advisor) of the assets sold or otherwise disposed of; and
of and (iiy) except in the case of a Permitted Asset Swap, if the property or assets sold or otherwise disposed of have a Fair Market Value in excess of the greater of $375,000,000 and 50% of Consolidated EBITDA for the most recently ended Test Period at the time of such disposition, calculated on a Pro Forma Basis, at least 75% of the consideration therefor received by Bidco Holdings or such Restricted Subsidiary, as the case may be, is in the form of cash or Cash Equivalents; provided that the amount of:
(Ai) any liabilities, contingent liabilities (as shown on Holdings’ or otherwise, of Bidco or such a Restricted Subsidiary, ’s most recent balance sheet or in the notes thereto) of Holdings or any Restricted Subsidiary (other than liabilities that are by their terms subordinated to the Secured Obligations Notes or any Subsidiary Guarantee) that are owed to Bidco or a Restricted Subsidiary that (x) are assumed by the transferee of any such assets (or a third party in connection with such transfer) or (y) that are otherwise cancelled or terminated in connection with the transaction with such transferee (other than intercompany debt owed to Bidco or its Restricted Subsidiaries) and, in each case, for which Bidco and all of its Restricted Subsidiaries have been validly released;transferee,
(Bii) any securities, notes or other obligations or other securities or assets received by Bidco Holdings or such Restricted Subsidiary from such transferee that are converted by Bidco Holdings or such Restricted Subsidiary into cash or Cash Equivalents within 180 days of the receipt thereof (to the extent of the cash or Cash Equivalents received) within 180 days following the closing of such Asset Sale;
(C) Indebtedness of any Restricted Subsidiary that ceases to be a Restricted Subsidiary as a result of such Asset Sale (other than intercompany debt owed to Bidco or any Restricted Subsidiary), to the extent that Bidco and each other Restricted Subsidiary are released from any guarantee of payment of the principal amount of such Indebtedness in connection with such Asset Sale in accordance with the terms of this Agreement,
(Diii) consideration consisting with respect to any Asset Sale of Indebtedness of a Borrower or a Guarantor (other than intercompany debt owed to Bidco or any Restricted Subsidiary Oil and other than Subordinated Indebtedness) received after the Effective Date from Persons who are not Bidco, Gas Properties by Holdings or any Restricted Subsidiary;, the costs and expenses related to the exploration, development, completion or production of such Oil and Gas Properties and activities related thereto agreed to be assumed by the transferee (or an Affiliate thereof),
(Eiv) [reserved],
(v) [reserved], and
(vi) any Designated Non-cash Consideration received by Bidco Holdings or such any Restricted Subsidiary in such Asset Sale having an aggregate Fair Market Value (as determined in good faith by Holdings), taken together with all other Designated Non-cash Consideration received pursuant to this clause (Evi) that is at that time outstanding, not to exceed the greater of $225,000,000 and 30% of Consolidated EBITDA for the most recently ended Test Period 25.0 million at the time of the receipt of such Designated Non-cash Consideration, calculated on a Pro Forma Basis Consideration (with the Fair Market Value of each such item of Designated Non-cash Consideration being measured pursuant to this clause (E) at Bidco’s option, either at the time of contractually agreeing to such Asset Sale or at the time received and, in either case, and without giving effect to subsequent changes in value); and
(F) any Investment, Capital Stock, assets, property or capital or other expenditure of the kind referred to in Section 6.04(b)(ii) shall be deemed to be Cash Equivalents for the purposes of this provision and for no other purposeSection 4.06.
(b) Within the Reinvestment Period after Bidco365 days of an Issuer’s or any Restricted Subsidiary’s receipt of the Net Proceeds of any Asset Sale, Bidco the Issuers or such Restricted Subsidiary shall may apply an amount equal to 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 prepay Loans or Indebtedness in accordance with Section 2.10(c) the Notes Obligations or (B) to 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 extent avoidance of doubt will not required to prepay Loans constitute Indebtedness under clauses (v), (w), (x) or (y), the Issuers will equally and ratably reduce Obligations under the Notes pursuant to Section 2.10(c3.01, 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 be retained by Bidco and/or Restricted SubsidiariesHoldings or an Affiliate of Holdings; orTable of Contents
(ii) to make investments an Investment in Bidco 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 its Subsidiariesassets that are the subject of such Asset Sale; provided that Bidco 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 Restricted Subsidiaries time period set forth in the first sentence of this Section 4.06(b) (it being understood that any portion of such Net Proceeds used to make an offer to purchase 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 have complied with this clause 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 (iiand, at the option of the Issuers, to holders of any Other Second-Lien Obligations) if and to the extent that, within the Reinvestment Period after the Asset Sale that generated the Net Proceeds, Bidco or such Restricted Subsidiary has entered into and not abandoned or rejected a binding agreement or letter of intent to consummate any such investment described in this clause (ii) with the good faith expectation that such Net Proceeds will be applied to satisfy such commitment within 180 days of such commitment (an “Acceptable CommitmentAsset Sale Offer”) andto 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 any such commitment is later cancelled or terminated for any reason before the Net Proceeds are applied in connection therewith, Bidco Notes or such Restricted Subsidiary enters into another Acceptable Commitment 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 (a “Second Commitment”) within 180 days or, in respect of such cancellation or termination; Other Second-Lien Obligations, such lesser price, if any, as may be provided that if any Second Commitment is later cancelled or terminated for any reason before by the terms of such Net Proceeds are appliedOther Second-Lien Obligations), then Bidco or to the date fixed for the closing of such Restricted Subsidiary shall prepay the Loans offer, in accordance with the procedures set forth in this Section 2.10(c4.06. 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.
(cd) Pending the final application of any such Net Proceeds pursuant to this covenantSection 4.06, the holder of Holdings or such Net Proceeds Restricted Subsidiary may apply such Net Proceeds temporarily to reduce Indebtedness outstanding under the Revolving Facility or any other a revolving credit facility facility, if any, or otherwise use invest such Net Proceeds in any manner not prohibited by this AgreementIndenture.
(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. Bidco To the extent that the provisions of any securities laws or any Restricted Subsidiaryregulations 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 case may beTrustee an Officers’ Certificate as to (i) the amount of the Excess Proceeds, may elect to invest in Bidco and its Subsidiaries prior to receiving (ii) the allocation of the Net Proceeds attributable from the Asset Sales pursuant to any given which such Asset Sale Offer is being made and (provided 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 investment 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); provided that no earlier than execution Notes of a definitive agreement for the relevant Asset Sale) and deem the amount so invested to $2,000 or less shall be applied purchased in part. Selection of such Pari Passu Indebtedness shall be made pursuant to and in accordance with clause (b)(ii) above with respect to the terms of such Asset SalePari Passu Indebtedness.
Appears in 2 contracts
Samples: Exchange Agreement (Talos Energy Inc.), Exchange Agreement (SAILFISH ENERGY HOLDINGS Corp)
Asset Sales. (a) Bidco The Issuer shall not, and shall not permit any of its Restricted Subsidiaries to, consummate cause or make an Asset Sale, unless:
unless (ix) Bidco the Issuer or such any of its Restricted SubsidiarySubsidiaries, as the case may be, receives consideration at the time of such Asset Sale at least equal to the Fair Market Value (as determined at in good faith by the time of contractually agreeing to such Asset SaleIssuer) of the assets sold or otherwise disposed of; and
of and (iiy) except in the case of a Permitted Asset Swap, if the property or assets sold or otherwise disposed of have a Fair Market Value in excess of the greater of $375,000,000 and 50% of Consolidated EBITDA for the most recently ended Test Period at the time of such disposition, calculated on a Pro Forma Basis, at least 75% of the consideration therefor received by Bidco the Issuer or such Restricted Subsidiary, as the case may be, is in the form of cash or Cash Equivalents; provided that the amount of:
(Ai) any liabilities, contingent or otherwise, of Bidco liabilities (as shown on the Issuer’s or such Restricted Subsidiary, ’s most recent balance sheet or in the notes thereto) of the Issuer or any Restricted Subsidiary of the Issuer (other than liabilities that are by their terms subordinated to the Secured Obligations or Notes) that are owed to Bidco or a Restricted Subsidiary that (x) are assumed by the transferee of any such assets (or a third party in connection with such transfer) or (y) that are otherwise cancelled or terminated in connection with the transaction with such transferee (other than intercompany debt owed to Bidco or its Restricted Subsidiaries) and, in each case, for which Bidco and all of its Restricted Subsidiaries have been validly releasedtransferee;
(Bii) any securities, notes or other obligations or other securities or assets received by Bidco the Issuer or such Restricted Subsidiary of the Issuer from such transferee that are converted by Bidco the Issuer or such Restricted Subsidiary of the Issuer into cash or Cash Equivalents within 180 days of the receipt thereof (to the extent of the cash or Cash Equivalents received) within 180 days following the closing of such Asset Sale);
(C) Indebtedness of any Restricted Subsidiary that ceases to be a Restricted Subsidiary as a result of such Asset Sale (other than intercompany debt owed to Bidco or any Restricted Subsidiary), to the extent that Bidco and each other Restricted Subsidiary are released from any guarantee of payment of the principal amount of such Indebtedness in connection with such Asset Sale in accordance with the terms of this Agreement,
(D) consideration consisting of Indebtedness of a Borrower or a Guarantor (other than intercompany debt owed to Bidco or any Restricted Subsidiary and other than Subordinated Indebtedness) received after the Effective Date from Persons who are not Bidco, Holdings or any Restricted Subsidiary;
(Eiii) any Designated Non-cash Consideration received by Bidco the Issuer or such any of its Restricted Subsidiary Subsidiaries in such Asset Sale having an aggregate Fair Market Value Value, taken together with all other Designated Non-cash Consideration received pursuant to this clause (Eiii) that is at that time outstanding, not to exceed the greater of $225,000,000 and 306.25% of Consolidated EBITDA for Total Assets of the most recently ended Test Period Issuer at the time of the receipt of such Designated Non-cash Consideration, calculated on a Pro Forma Basis Consideration (with the Fair Market Value of each such item of Designated Non-cash Consideration being measured pursuant to this clause (E) at Bidco’s option, either at the time of contractually agreeing to such Asset Sale or at the time received and, in either case, and without giving effect to subsequent changes in value);
(iv) any Indebtedness of any Restricted Subsidiary that is no longer a Restricted Subsidiary as a result of such Asset Sale, to the extent that the Issuer and each other Restricted Subsidiary are released from any guarantee of payment of such Indebtedness in connection with the Asset Sale; and
(Fv) any Investment, Capital Stock, assets, property or capital or other expenditure consideration consisting of Indebtedness of the kind referred to Issuer (other than Subordinated Indebtedness) received after the Issue Date from Persons who are not the Issuer or any Restricted Subsidiary in Section 6.04(b)(ii) connection with the Asset Sale and that is cancelled shall be deemed to be Cash Equivalents for the purposes of this provision and for no other purposeSection 4.06(a).
(b) Within 485 days after the Reinvestment Period after BidcoIssuer’s or any Restricted SubsidiarySubsidiary of the Issuer’s receipt of the Net Proceeds of any Asset SaleSale (or Event of Loss Proceeds), Bidco the Issuer or such Restricted Subsidiary shall of the Issuer may apply an amount equal to the Net Proceeds from such Asset Sale,Sale (together with any Event of Loss Proceeds), at its option:
(i) to repay, repurchase or otherwise retire (Aand, if the Indebtedness being repaid is revolving credit Indebtedness, to correspondingly reduce commitments with respect thereto) (a) Indebtedness constituting First Lien Obligations other than the Notes, (b) Obligations under the Notes at a purchase price equal to prepay Loans or Indebtedness 100% of the principal amount thereof by making an offer (in accordance with Section 2.10(cthe 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, on the pro rata principal amount of Notes, (c) Indebtedness of a Restricted Subsidiary that is not a Subsidiary Guarantor or (Bd) Obligations under Pari Passu Indebtedness other than First Lien Obligations so long as the Net Proceeds are from the sale of assets not constituting Collateral, in each case other than Indebtedness owed to the Issuer or an Affiliate of the Issuer; provided that if an offer to purchase any Indebtedness of the Issuer or its Restricted Subsidiaries is made in accordance with the terms of such Indebtedness, the obligation to repay (and, in the case of revolving credit Indebtedness, reduce commitments under) Indebtedness of the Issuer 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 required accepted by the holders thereof, and no Net Proceeds in the amount of such offer will be deemed to prepay Loans pursuant to Section 2.10(c), to be retained by Bidco and/or Restricted Subsidiaries; orexist following such offer,
(ii) to make investments an investment in Bidco 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 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 Issuer), properties or assets that replace the properties and its Subsidiariesassets that are the subject of such Asset Sale or Event of Loss; provided that Bidco and in the Restricted Subsidiaries will be deemed to have complied with this clause case of clauses (ii) if and to the extent that(iii) above, within the Reinvestment Period after the Asset Sale that generated a binding commitment shall be treated as a permitted application of the Net Proceeds, Bidco or such Restricted Subsidiary has entered into and not abandoned or rejected a binding agreement or letter of intent to consummate any such investment described in this clause (ii) with Proceeds from the good faith expectation that such Net Proceeds will be applied to satisfy such commitment within 180 days date of such commitment (an “Acceptable Commitment”) and, in the event any such binding commitment is later cancelled or terminated for any reason before the Net Proceeds are applied in connection therewith, Bidco or such Restricted Subsidiary enters into another Acceptable Commitment (a “Second Commitment”) within 180 days of such cancellation or termination; provided that if any Second Commitment is later cancelled canceled or terminated for any reason before such Net Proceeds are so applied, then Bidco the Issuer or such Restricted Subsidiary shall prepay enters into another binding commitment within nine months of such cancellation or termination of the Loans in accordance with Section 2.10(c).
(c) prior binding commitment. Pending the final application of any such Net Proceeds pursuant to this covenant(or Event of Loss Proceeds), the holder 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 (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 4.06(b) (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 (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 Issuer shall make an offer to all Holders and, at the option of the Issuer, to holders of any other First Lien Obligations (an “Asset Sale Offer”) to purchase the maximum principal amount of Notes (and such other First Lien Obligations) that is an integral multiple of $1,000, provided that no Notes of $2,000 or less shall be purchased in part, that may apply 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 Net other First Lien Obligations was issued with significant original issue discount, 100% of the accreted value thereof), plus accrued and unpaid interest (or, in respect of such other First Lien Obligations, such lesser price, if any, as may be provided for by the terms of such other First Lien Obligations), to but excluding 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 temporarily within ten Business Days after the date that Excess Proceeds exceed $55.0 million by mailing the notice required pursuant to reduce Indebtedness outstanding the terms of Section 4.06(f), with a copy to the Trustee. 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. 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 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 Revolving Facility or Exchange Act and any other revolving credit facility securities laws and regulations to the extent such laws or otherwise use such Net Proceeds 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 manner 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 prohibited be deemed to have breached its obligations described in this Indenture by this Agreement. Bidco or any Restricted Subsidiaryvirtue 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 case may beamount of the Excess Proceeds, may elect to invest in Bidco and its Subsidiaries prior to receiving (ii) the allocation of the Net Proceeds attributable from the Asset Sales pursuant to any given which such Asset Sale Offer is being made and (provided 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 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.
(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 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 investment Holder is withdrawing his election to have such Note purchased. If at the end of the Offer Period more Notes (and such other First Lien Obligations) are tendered pursuant to an Asset Sale Offer than the Issuer is required to purchase, the principal amount of the Notes (and other First Lien Obligations) to be purchased will be determined pro rata by the Issuer based on the principal amount so tendered and the selection of the actual Notes for purchase shall be made by the Trustee on a pro rata basis, by lot or by such other method as Trustee shall deem fair and appropriate (and in such manner as complies with applicable legal requirements and, if the Notes are in global form, the requirements of the Depository); provided, however, that no earlier Notes (or other First Lien Obligations) of $2,000 or less shall be purchased in part.
(f) Notice of an Asset Sale Offer shall be mailed by first class mail, postage prepaid, at least 30 but not more than execution of a definitive agreement for 60 days before the relevant Asset Sale) and deem the amount so invested purchase date to each Holder at such Holder’s registered address. If any Note is to be applied pursuant to and purchased in accordance with clause (b)(ii) above with respect part only, any notice of purchase that relates to such Asset SaleNote shall state the portion of the principal amount thereof that has been or is to be purchased.
(g) If Notes tendered are in certificated form, 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: Indenture (Intelsat S.A.), Indenture (Intelsat S.A.)
Asset Sales. (a) Bidco shall The Borrower will not, and shall will not permit any of its Restricted Subsidiaries to, consummate an Asset Sale, Sale unless:
(i) Bidco the Borrower or such Restricted Subsidiary, as the case may be, receives consideration at the time of such the Asset Sale at least equal to the Fair Market Value fair market value (as determined at 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; and
(ii) except in the case of a for any Permitted Asset Swap, if the property or assets sold or otherwise disposed of have a Fair Market Value in excess of the greater of $375,000,000 and 50% of Consolidated EBITDA for the most recently ended Test Period at the time of such disposition, calculated on a Pro Forma Basis, at least 75% of the consideration therefor received in the Asset Sale by Bidco the Borrower or such Restricted Subsidiary, as the case may 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, contingent or otherwise, of Bidco liabilities (as shown on the Borrower’s or such Restricted Subsidiary’s most recent balance sheet or in the notes thereto, or if incurred or accrued subsequent to the date of such balance sheet, such liabilities that would have been shown on such balance sheet or in the notes thereto if such incurrence or accrual had taken place on or prior to the date of such balance sheet, as determined in good faith by the Borrower) of the Borrower or any Restricted Subsidiary (other than liabilities that are by their terms subordinated in right of payment to the Secured Obligations or Revolving Facility Obligations) that are owed to Bidco or a Restricted Subsidiary that (x) are assumed by the transferee of any such assets (or a third party 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 transfer) or Asset Sale, (y) are otherwise cancelled or terminated in connection with the transaction with such transferee (other than intercompany debt owed to Bidco or its Restricted Subsidiaries) and, in each case, for which Bidco and all of its Restricted Subsidiaries have been validly released;
(Bii) any securities, notes or other obligations or assets received by Bidco the Borrower or such Restricted Subsidiary from such transferee that are converted by Bidco the Borrower or such Restricted Subsidiary into cash or Cash Equivalents (to the extent of the cash or Cash Equivalents received) within 180 days following the closing of such Asset Sale;
Sale and (C) Indebtedness of any Restricted Subsidiary that ceases to be a Restricted Subsidiary as a result of such Asset Sale (other than intercompany debt owed to Bidco or any Restricted Subsidiary), to the extent that Bidco and each other Restricted Subsidiary are released from any guarantee of payment of the principal amount of such Indebtedness in connection with such Asset Sale in accordance with the terms of this Agreement,
(D) consideration consisting of Indebtedness of a Borrower or a Guarantor (other than intercompany debt owed to Bidco or any Restricted Subsidiary and other than Subordinated Indebtedness) received after the Effective Date from Persons who are not Bidco, Holdings or any Restricted Subsidiary;
(Eiii) any Designated Non-cash Cash Consideration received by Bidco the Borrower or such any of its Restricted Subsidiary Subsidiaries in such Asset Sale having an aggregate Fair Market Value fair market value (as determined in good faith by the Board of Directors of the Borrower), taken together with all other Designated Non-cash Cash Consideration received pursuant to this clause (Eiii) that is at that time outstanding, not to exceed the greater of $225,000,000 150.0 million and 3020.0% of Consolidated EBITDA for the most recently ended Test Period at the time of the receipt of such Designated Non-cash Consideration, calculated on a Pro Forma Basis Cash Consideration (with the Fair Market Value fair market value of each such item of Designated Non-cash Cash Consideration being measured pursuant to this clause (E) at Bidco’s option, either at the time of contractually agreeing to such Asset Sale or at the time received and, in either case, without giving effect to subsequent changes in value); and
(F) any Investment, Capital Stock, assets, property or capital or other expenditure of the kind referred to in Section 6.04(b)(ii) shall be deemed to be Cash Equivalents cash for purposes of this provision Section 7.03 and for no other purpose.
(b) Within the Reinvestment Period after Bidco’s or any Restricted Subsidiary’s receipt of the Net Proceeds of any Asset Sale, Bidco or such Restricted Subsidiary shall apply an amount equal to the Net Proceeds from such Asset Sale,
(i) (A) to prepay Loans or Indebtedness in accordance with Section 2.10(c) or (B) to the extent not required to prepay Loans pursuant to Section 2.10(c), to be retained by Bidco and/or Restricted Subsidiaries; or
(ii) to make investments in Bidco and its Subsidiaries; provided that Bidco and the Restricted Subsidiaries will be deemed to have complied with this clause (ii) if and to the extent that, within the Reinvestment Period after the Asset Sale that generated the Net Proceeds, Bidco or such Restricted Subsidiary has entered into and not abandoned or rejected a binding agreement or letter of intent to consummate any such investment described in this clause (ii) 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 such commitment is later cancelled or terminated for any reason before the Net Proceeds are applied in connection therewith, Bidco or such Restricted Subsidiary enters into another Acceptable Commitment (a “Second Commitment”) within 180 days of such cancellation or termination; provided that if any Second Commitment is later cancelled or terminated for any reason before such Net Proceeds are applied, then Bidco or such Restricted Subsidiary shall prepay the Loans in accordance with Section 2.10(c).
(c) 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 the Revolving Facility or any other revolving credit facility or otherwise use such Net Proceeds in any manner not prohibited by this Agreement. Bidco or any Restricted Subsidiary, as the case may be, may elect to invest in Bidco and its Subsidiaries prior to receiving the Net Proceeds attributable to any given Asset Sale (provided that such investment shall be made no earlier than execution of a definitive agreement for the relevant Asset Sale) and deem the amount so invested to be applied pursuant to and in accordance with clause (b)(ii) above with respect to such Asset Sale.
Appears in 2 contracts
Samples: Credit Agreement (Warner Music Group Corp.), Credit Agreement (Warner Music Group Corp.)
Asset Sales. (a) Bidco shall The Borrower will not, and shall will not permit any of its Restricted Subsidiaries to, consummate an Asset Sale, Sale unless:
(i) Bidco the Borrower or such Restricted Subsidiary, as the case may be, receives consideration at the time of such the Asset Sale at least equal to the Fair Market Value fair market value (as determined at 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; and
(ii) except in the case of a for any Permitted Asset Swap, if the property or assets sold or otherwise disposed of have a Fair Market Value in excess of the greater of $375,000,000 and 50% of Consolidated EBITDA for the most recently ended Test Period at the time of such disposition, calculated on a Pro Forma Basis, at least 75% of the consideration therefor received in the Asset Sale by Bidco the Borrower or such Restricted Subsidiary, as the case may 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, contingent or otherwise, of Bidco liabilities (as shown on the Borrower’s or such Restricted Subsidiary’s most recent balance sheet or in the notes thereto, or if incurred or accrued subsequent to the date of such balance sheet, such liabilities that would have been shown on such balance sheet or in the notes thereto if such incurrence or accrual had taken place on or prior to the date of such balance sheet, as determined in good faith by the Borrower) of the Borrower or any Restricted Subsidiary (other than liabilities that are by their terms subordinated in right of payment to the Secured Obligations or Revolving Facility Obligations) that are owed to Bidco or a Restricted Subsidiary that (x) are assumed by the transferee of any such assets (or a third party 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 transfer) or Asset Sale, (y) are otherwise cancelled or terminated in connection with the transaction with such transferee (other than intercompany debt owed to Bidco or its Restricted Subsidiaries) and, in each case, for which Bidco and all of its Restricted Subsidiaries have been validly released;
(Bii) any securities, notes or other obligations or assets received by Bidco the Borrower or such Restricted Subsidiary from such transferee that are converted by Bidco the Borrower or such Restricted Subsidiary into cash or Cash Equivalents (to the extent of the cash or Cash Equivalents received) within 180 days following the closing of such Asset Sale;
Sale and (C) Indebtedness of any Restricted Subsidiary that ceases to be a Restricted Subsidiary as a result of such Asset Sale (other than intercompany debt owed to Bidco or any Restricted Subsidiary), to the extent that Bidco and each other Restricted Subsidiary are released from any guarantee of payment of the principal amount of such Indebtedness in connection with such Asset Sale in accordance with the terms of this Agreement,
(D) consideration consisting of Indebtedness of a Borrower or a Guarantor (other than intercompany debt owed to Bidco or any Restricted Subsidiary and other than Subordinated Indebtedness) received after the Effective Date from Persons who are not Bidco, Holdings or any Restricted Subsidiary;
(Eiii) any Designated Non-cash Cash Consideration received by Bidco the Borrower or such any of its Restricted Subsidiary Subsidiaries in such Asset Sale having an aggregate Fair Market Value fair market value (as determined in good faith by the Board of Directors of the Borrower), taken together with all other Designated Non-cash Cash Consideration received pursuant to this clause (Eiii) that is at that time outstanding, not to exceed the greater of (x) $225,000,000 100.0150.0 million and 30(y) 9.0% of Consolidated Tangible Assets20.0% of EBITDA for the most recently ended Test Period at the time of the receipt of such Designated Non-cash Consideration, calculated on a Pro Forma Basis Cash Consideration (with the Fair Market Value fair market value of each such item of Designated Non-cash Cash Consideration being measured pursuant to this clause (E) at Bidco’s option, either at the time of contractually agreeing to such Asset Sale or at the time received and, in either case, without giving effect to subsequent changes in value); and
(F) any Investment, Capital Stock, assets, property or capital or other expenditure of the kind referred to in Section 6.04(b)(ii) shall be deemed to be Cash Equivalents cash for purposes of this provision Section 7.03 and for no other purpose.
(b) Within the Reinvestment Period after Bidco’s or any Restricted Subsidiary’s receipt of the Net Proceeds of any Asset Sale, Bidco or such Restricted Subsidiary shall apply an amount equal to the Net Proceeds from such Asset Sale,
(i) (A) to prepay Loans or Indebtedness in accordance with Section 2.10(c) or (B) to the extent not required to prepay Loans pursuant to Section 2.10(c), to be retained by Bidco and/or Restricted Subsidiaries; or
(ii) to make investments in Bidco and its Subsidiaries; provided that Bidco and the Restricted Subsidiaries will be deemed to have complied with this clause (ii) if and to the extent that, within the Reinvestment Period after the Asset Sale that generated the Net Proceeds, Bidco or such Restricted Subsidiary has entered into and not abandoned or rejected a binding agreement or letter of intent to consummate any such investment described in this clause (ii) 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 such commitment is later cancelled or terminated for any reason before the Net Proceeds are applied in connection therewith, Bidco or such Restricted Subsidiary enters into another Acceptable Commitment (a “Second Commitment”) within 180 days of such cancellation or termination; provided that if any Second Commitment is later cancelled or terminated for any reason before such Net Proceeds are applied, then Bidco or such Restricted Subsidiary shall prepay the Loans in accordance with Section 2.10(c).
(c) 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 the Revolving Facility or any other revolving credit facility or otherwise use such Net Proceeds in any manner not prohibited by this Agreement. Bidco or any Restricted Subsidiary, as the case may be, may elect to invest in Bidco and its Subsidiaries prior to receiving the Net Proceeds attributable to any given Asset Sale (provided that such investment shall be made no earlier than execution of a definitive agreement for the relevant Asset Sale) and deem the amount so invested to be applied pursuant to and in accordance with clause (b)(ii) above with respect to such Asset Sale.
Appears in 2 contracts
Samples: Credit Agreement (Warner Music Group Corp.), Credit Agreement (Warner Music Group Corp.)
Asset Sales. (a) Bidco The Borrower shall not, and shall not permit any of its Restricted Subsidiaries to, consummate cause or make an Asset Sale, unless:
unless (ix) Bidco the Borrower or such any of its Restricted SubsidiarySubsidiaries, as the case may be, receives consideration at the time of such Asset Sale at least equal to the Fair Market Value (as determined at in good faith by the time of contractually agreeing to such Asset SaleBorrower) of the assets sold or otherwise disposed of; and
of and (iiy) except in the case of a Permitted Asset Swap, if the property or assets sold or otherwise disposed of have a Fair Market Value in excess of the greater of $375,000,000 and 50% of Consolidated EBITDA for the most recently ended Test Period at the time of such disposition, calculated on a Pro Forma Basis, at least 75% of the consideration therefor received by Bidco the Borrower or such Restricted Subsidiary, as the case may be, is in the form of cash or Cash Equivalents; provided that the amount of:
(Ai) any liabilities, contingent or otherwise, of Bidco liabilities (as shown on the Borrower’s or such Restricted Subsidiary, ’s most recent balance sheet or in the notes thereto) of the Borrower or any Restricted Subsidiary of the Borrower (other than liabilities that are by their terms subordinated to the Secured Obligations or Loans) that are owed to Bidco or a Restricted Subsidiary that (x) are assumed by the transferee of any such assets (or a third party in connection with such transfer) or (y) are otherwise cancelled or terminated in connection with the transaction with such transferee (other than intercompany debt owed to Bidco or its Restricted Subsidiaries) and, in each case, for which Bidco and all of its Restricted Subsidiaries have been validly released;assets,
(Bii) any securities, notes or other obligations or other securities or assets received by Bidco the Borrower or such Restricted Subsidiary of the Borrower from such transferee that are converted by Bidco the Borrower or such Restricted Subsidiary of the Borrower into cash or Cash Equivalents within 180 days of the receipt thereof (to the extent of the cash or Cash Equivalents received) within 180 days following the closing of such Asset Sale;), and
(C) Indebtedness of any Restricted Subsidiary that ceases to be a Restricted Subsidiary as a result of such Asset Sale (other than intercompany debt owed to Bidco or any Restricted Subsidiary), to the extent that Bidco and each other Restricted Subsidiary are released from any guarantee of payment of the principal amount of such Indebtedness in connection with such Asset Sale in accordance with the terms of this Agreement,
(D) consideration consisting of Indebtedness of a Borrower or a Guarantor (other than intercompany debt owed to Bidco or any Restricted Subsidiary and other than Subordinated Indebtedness) received after the Effective Date from Persons who are not Bidco, Holdings or any Restricted Subsidiary;
(Eiii) any Designated Non-cash Consideration received by Bidco the Borrower or such any of its Restricted Subsidiary Subsidiaries in such Asset Sale having an aggregate Fair Market Value Value, taken together with all other Designated Non-cash Consideration received pursuant to this clause (Eiii) that is at that time outstanding, not to exceed the greater of $225,000,000 and 305.0% of Consolidated EBITDA for Total Assets of the most recently ended Test Period Borrower at the time of the receipt of such Designated Non-cash Consideration, calculated on a Pro Forma Basis Consideration (with the Fair Market Value of each such item of Designated Non-cash Consideration being measured pursuant to this clause (E) at Bidco’s option, either at the time of contractually agreeing to such Asset Sale or at the time received and, in either case, and without giving effect to subsequent changes in value); and
(F) any Investment, Capital Stock, assets, property or capital or other expenditure of the kind referred to in Section 6.04(b)(ii) shall be deemed to be Cash Equivalents for the purposes of this provision and for no other purposeSection 10.4(a).
(b) Within 365 days after the Reinvestment Period after BidcoBorrower’s or any Restricted SubsidiarySubsidiary of the Borrower’s receipt of the Net Proceeds of any Asset SaleSale (or Event of Loss Proceeds), Bidco the Borrower or such Restricted Subsidiary shall of the Borrower may apply an amount equal to the Net Proceeds from such Asset Sale,Sale together with any Event of Loss Proceeds, at its option:
(i) to permanently reduce Obligations under Secured Indebtedness or Pari Passu Indebtedness (A) to prepay 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 or Indebtedness are then prepayable or, if the Loans may not then be prepaid, by making an offer (in accordance with Section 2.10(cthe 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 (B) Indebtedness of a Restricted Subsidiary that is not a Guarantor, in each case other than Indebtedness owed to the extent not required to prepay Loans pursuant to Section 2.10(c), to be retained by Bidco and/or Restricted Subsidiaries; orBorrower 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 investments an investment in Bidco 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 its Subsidiariesassets that are the subject of such Asset Sale or Event of Loss; provided that Bidco and in the Restricted Subsidiaries will be deemed to have complied with this clause case of clauses (ii) if and to the extent that(iii) above, within the Reinvestment Period after the Asset Sale that generated a binding commitment shall be treated as a permitted application of the Net Proceeds, Bidco or such Restricted Subsidiary has entered into and not abandoned or rejected a binding agreement or letter of intent to consummate any such investment described in this clause (ii) with Proceeds from the good faith expectation that such Net Proceeds will be applied to satisfy such commitment within 180 days date of such commitment (an “Acceptable Commitment”) and, in the event any such binding commitment is later cancelled or terminated for any reason before the Net Proceeds are applied in connection therewith, Bidco or such Restricted Subsidiary enters into another Acceptable Commitment (a “Second Commitment”) within 180 days of such cancellation or termination; provided that if any Second Commitment is later cancelled canceled or terminated for any reason before such Net Proceeds are so applied, then Bidco the Borrower or such Restricted Subsidiary shall prepay enters into another binding commitment within nine months of such cancellation or termination of the Loans in accordance with Section 2.10(c).
(c) prior binding commitment. Pending the final application of any such Net Proceeds pursuant to this covenant(or Event of Loss Proceeds), the holder 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 10.4(b) (it being understood that any portion of such Net Proceeds may apply such Net Proceeds temporarily (or Event of Loss Proceeds) used to reduce Indebtedness outstanding under make an offer to prepay the Revolving Facility or any other revolving credit facility or otherwise use such Net Proceeds in any manner not prohibited by this Agreement. Bidco or any Restricted SubsidiaryLoans, as the case may bedescribed in clause (i) above, may elect to invest in Bidco and its Subsidiaries prior to receiving the Net Proceeds attributable to any given Asset Sale (provided that such investment shall be made no earlier than execution 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 definitive agreement for Prepayment Offer and, at the relevant Asset Sale) and deem option of the amount so invested to be applied Borrower pursuant to Section 5.2, any holders of Pari Passu Indebtedness, and in accordance with clause (b)(ii) above with respect to this Section 10.4. Upon completion of any such Asset SaleExcess 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. (a) Bidco shall The Company will not, and shall will not permit any of its Restricted Subsidiaries to, consummate make any Asset Sale (except with respect to an Asset Sale, Event of Loss) unless:
(i) Bidco the Company or such the Restricted Subsidiary, as the case may be, receives consideration at the time of such Asset Sale at least equal to the Fair Market Value (as determined at the time of contractually agreeing to such Asset Sale) of the assets or Equity Interests issued or sold or otherwise disposed of; and
(ii) except in the case of a Permitted Asset Swap, if the property or assets sold or otherwise disposed of have a Fair Market Value in excess of the greater of $375,000,000 and 50% of Consolidated EBITDA for the most recently ended Test Period at the time of such disposition, calculated on a Pro Forma Basis, at least 75% of the consideration therefor received by Bidco the Company or such Restricted Subsidiary, as the case may be, Subsidiary is in the form of cash or Cash Equivalents; provided that the amount of:
(A1) any liabilities, contingent or otherwise, of Bidco liabilities (as shown on the Company’s or such Restricted Subsidiary, ’s most recent balance sheet) of the Company or any Restricted Subsidiary of the Company (other than contingent liabilities and liabilities that are by their terms subordinated to the Secured Obligations Notes or any Notes Guarantee thereof) that are owed to Bidco or a Restricted Subsidiary that (x) are assumed by the transferee of any such assets (and with respect to which the Company or a third party in connection with such transfer) or (y) are otherwise cancelled or terminated in connection with the transaction with such transferee (other than intercompany debt owed to Bidco or its Restricted Subsidiaries) and, in each case, for which Bidco and all of its Restricted Subsidiaries have been validly releasedSubsidiary is unconditionally released from further liability;
(B2) (A) any securities, notes or other obligations or assets received by Bidco the Company or any such Restricted Subsidiary from such transferee that are converted within 90 days by Bidco the Company or such Restricted Subsidiary into cash or Cash Equivalents (to the extent of the cash or Cash Equivalents receivedreceived in that conversion) within 180 days and (B) accounts receivable of a business retained by the Company or any of its Restricted Subsidiaries, as the case may be, following the closing sale of such Asset Sale;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
(C) Indebtedness of any Restricted Subsidiary that ceases to be a Restricted Subsidiary as a result of such Asset Sale (other than intercompany debt owed to Bidco or any Restricted Subsidiary), to the extent that Bidco and each other Restricted Subsidiary are released from any guarantee of payment of the principal amount of such Indebtedness in connection with such Asset Sale in accordance with the terms of this Agreement,
(D) consideration consisting of Indebtedness of a Borrower or a Guarantor (other than intercompany debt owed to Bidco or any Restricted Subsidiary and other than Subordinated Indebtedness) received after the Effective Date from Persons who are not Bidco, Holdings or any Restricted Subsidiary;
(E3) any Designated Non-cash Cash Consideration received by Bidco 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 (E) Sale; provided that is at that time outstanding, not to exceed the greater of $225,000,000 and 30% of Consolidated EBITDA for the most recently ended Test Period at the time of the receipt of such Designated Non-cash Cash Consideration, calculated on a Pro Forma Basis the aggregate Fair Market Value of all Designated Non-Cash Consideration (with the Fair Market Value of each such item of Designated Non-cash Cash Consideration being measured pursuant to this clause (E) at Bidco’s option, either at the time of contractually agreeing to such Asset Sale or at the time received and, in either case, and without giving effect to subsequent changes in value); and
, less the amount of Net Proceeds previously realized in cash or Cash Equivalents from the sale of previously received Designated Non-Cash Consideration is less than the greater of (Fi) any Investment$2.5 million and (ii) 0.5% of Consolidated Tangible Assets, Capital Stock, assets, property or capital or other expenditure of the kind referred to in Section 6.04(b)(ii) shall will be deemed to be Cash Equivalents cash for purposes of this provision and for no other purposeSection 5.10.
(b) Within 365 days after the Reinvestment Period after Bidco’s or any Restricted Subsidiary’s receipt of the any Net Proceeds from an Asset Sale by the Company or a Restricted Subsidiary of any Asset Salethe Company, Bidco the Company or such Restricted Subsidiary shall may apply an amount equal to the such Net Proceeds from such Asset Sale,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) to prepay Loans recorded as accounts receivable or Indebtedness in accordance with Section 2.10(c) 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 extent not required to prepay Loans pursuant to Section 2.10(c)making of a capital expenditure or the acquisition of a controlling interest in another business or other assets, to be retained by Bidco and/or Restricted Subsidiaries; or
(ii) to make investments in Bidco and its Subsidiaries; provided each case, that Bidco and are used or useful in a Similar Business or that replace the Restricted Subsidiaries will be deemed to have complied with this clause (ii) if and to assets that are the extent that, within the Reinvestment Period after the Asset Sale that generated the Net Proceeds, Bidco or such Restricted Subsidiary has entered into and not abandoned or rejected a binding agreement or letter of intent to consummate any such investment described in this clause (ii) with the good faith expectation that such Net Proceeds will be applied to satisfy such commitment within 180 days subject of such commitment (an “Acceptable Commitment”) and, in the event any such commitment is later cancelled or terminated for any reason before the Net Proceeds are applied in connection therewith, Bidco or such Restricted Subsidiary enters into another Acceptable Commitment (a “Second Commitment”) within 180 days of such cancellation or termination; provided that if any Second Commitment is later cancelled or terminated for any reason before such Net Proceeds are applied, then Bidco or such Restricted Subsidiary shall prepay the Loans in accordance with Section 2.10(c)Asset Sale.
(c) Pending the final application of any such Net Proceeds pursuant to this covenantProceeds, the holder Company or a Restricted Subsidiary of such Net Proceeds the Company may apply such Net Proceeds temporarily to reduce Indebtedness outstanding under the Revolving Facility or any other revolving credit facility Credit Facilities or otherwise use invest such Net Proceeds in any manner that is not prohibited by this AgreementIndenture.
(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. Bidco or any Restricted SubsidiaryThe 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, as in the case may beof Pari Passu Indebtedness issued with original issue discount, may elect 100% of the accreted value thereof), plus accrued and unpaid interest to invest in Bidco and its Subsidiaries prior to receiving the Net Proceeds attributable to any given Asset Sale (provided that such investment shall be made no earlier than execution date of a definitive agreement for the relevant Asset Sale) and deem the amount so invested to be applied pursuant to and purchase, in accordance with clause 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 (b)(iisubject 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) above 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 respect to such 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 3.09), 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. (a) Bidco shall The Borrower will not, and shall will not permit any of its Restricted Subsidiaries to, consummate an Asset Sale, Sale unless:
(i) Bidco the Borrower or such Restricted Subsidiary, as the case may be, receives consideration at the time of such the Asset Sale at least equal to the Fair Market Value fair market value (as determined at 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; and
(ii) except in the case of a for any Permitted Asset Swap, if the property or assets sold or otherwise disposed of have a Fair Market Value in excess of the greater of $375,000,000 and 50% of Consolidated EBITDA for the most recently ended Test Period at the time of such disposition, calculated on a Pro Forma Basis, at least 75% of the consideration therefor received in the Asset Sale by Bidco the Borrower or such Restricted Subsidiary, as the case may 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, contingent or otherwise, of Bidco liabilities (as shown on the Borrower’s or such Restricted Subsidiary’s most recent balance sheet or in the notes thereto, or if incurred or accrued subsequent to the date of such balance sheet, such liabilities that would have been shown on such balance sheet or in the notes thereto if such incurrence or accrual had taken place on or prior to the date of such balance sheet, as determined in good faith by the Borrower) of the Borrower or any Restricted Subsidiary (other than liabilities that are by their terms subordinated in right of payment to the Secured Obligations or Revolving Facility Obligations) that are owed to Bidco or a Restricted Subsidiary that (x) are assumed by the transferee of any such assets (or a third party 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 transfer) or Asset Sale, (y) are otherwise cancelled or terminated in connection with the transaction with such transferee (other than intercompany debt owed to Bidco or its Restricted Subsidiaries) and, in each case, for which Bidco and all of its Restricted Subsidiaries have been validly released;
(Bii) any securities, notes or other obligations or assets received by Bidco the Borrower or such Restricted Subsidiary from such transferee that are converted by Bidco the Borrower or such Restricted Subsidiary into cash or Cash Equivalents (to the extent of the cash or Cash Equivalents received) within 180 days following the closing of such Asset Sale;
Sale and (C) Indebtedness of any Restricted Subsidiary that ceases to be a Restricted Subsidiary as a result of such Asset Sale (other than intercompany debt owed to Bidco or any Restricted Subsidiary), to the extent that Bidco and each other Restricted Subsidiary are released from any guarantee of payment of the principal amount of such Indebtedness in connection with such Asset Sale in accordance with the terms of this Agreement,
(D) consideration consisting of Indebtedness of a Borrower or a Guarantor (other than intercompany debt owed to Bidco or any Restricted Subsidiary and other than Subordinated Indebtedness) received after the Effective Date from Persons who are not Bidco, Holdings or any Restricted Subsidiary;
(Eiii) any Designated Non-cash Cash Consideration received by Bidco the Borrower or such any of its Restricted Subsidiary Subsidiaries in such Asset Sale having an aggregate Fair Market Value fair market value (as determined in good faith by the Board of Directors of the Borrower), taken together with all other Designated Non-cash Cash Consideration received pursuant to this clause (Eiii) that is at that time outstanding, not to exceed the greater of (x) $225,000,000 100.0 million and 30(y) 9.0% of Consolidated EBITDA for the most recently ended Test Period Tangible Assets at the time of the receipt of such Designated Non-cash Consideration, calculated on a Pro Forma Basis Cash Consideration (with the Fair Market Value fair market value of each such item of Designated Non-cash Cash Consideration being measured pursuant to this clause (E) at Bidco’s option, either at the time of contractually agreeing to such Asset Sale or at the time received and, in either case, without giving effect to subsequent changes in value); and
(F) any Investment, Capital Stock, assets, property or capital or other expenditure of the kind referred to in Section 6.04(b)(ii) shall be deemed to be Cash Equivalents cash for purposes of this provision Section 7.03 and for no other purpose.
(b) Within the Reinvestment Period after Bidco’s or any Restricted Subsidiary’s receipt of the Net Proceeds of any Asset Sale, Bidco or such Restricted Subsidiary shall apply an amount equal to the Net Proceeds from such Asset Sale,
(i) (A) to prepay Loans or Indebtedness in accordance with Section 2.10(c) or (B) to the extent not required to prepay Loans pursuant to Section 2.10(c), to be retained by Bidco and/or Restricted Subsidiaries; or
(ii) to make investments in Bidco and its Subsidiaries; provided that Bidco and the Restricted Subsidiaries will be deemed to have complied with this clause (ii) if and to the extent that, within the Reinvestment Period after the Asset Sale that generated the Net Proceeds, Bidco or such Restricted Subsidiary has entered into and not abandoned or rejected a binding agreement or letter of intent to consummate any such investment described in this clause (ii) 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 such commitment is later cancelled or terminated for any reason before the Net Proceeds are applied in connection therewith, Bidco or such Restricted Subsidiary enters into another Acceptable Commitment (a “Second Commitment”) within 180 days of such cancellation or termination; provided that if any Second Commitment is later cancelled or terminated for any reason before such Net Proceeds are applied, then Bidco or such Restricted Subsidiary shall prepay the Loans in accordance with Section 2.10(c).
(c) 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 the Revolving Facility or any other revolving credit facility or otherwise use such Net Proceeds in any manner not prohibited by this Agreement. Bidco or any Restricted Subsidiary, as the case may be, may elect to invest in Bidco and its Subsidiaries prior to receiving the Net Proceeds attributable to any given Asset Sale (provided that such investment shall be made no earlier than execution of a definitive agreement for the relevant Asset Sale) and deem the amount so invested to be applied pursuant to and in accordance with clause (b)(ii) above with respect to such Asset Sale.1003651351v23
Appears in 1 contract
Asset Sales. (a) Bidco 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:
(i1) Bidco the Company or such Restricted Subsidiary, as the case may be, receives consideration at the time of such Asset Sale at least equal to the Fair Market Value fair market value (as determined at in good faith by the time of contractually agreeing to such Asset SaleCompany) of the assets sold or otherwise disposed ofof (notwithstanding the foregoing, the consideration received by the Company or any of its Restricted Subsidiaries from sales, transfers and other dispositions of Investments in 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
(ii2) except in the case of a Permitted Asset Swap, if the property or assets sold or otherwise disposed of have a Fair Market Value in excess of the greater of $375,000,000 and 50% of Consolidated EBITDA for the most recently ended Test Period at the time of such disposition, calculated on a Pro Forma Basis, at least 7580% of the consideration therefor received by Bidco the Company or such Restricted Subsidiary, as the case may be, is in the form of cash or Cash EquivalentsEquivalents (such 80% of consideration, the “Minimum Cash Consideration”); provided that the amount of:
(A) any liabilities, contingent liabilities (as shown on the Company’s or otherwise, such Restricted Subsidiary’s most recent balance sheet or in the notes thereto) of Bidco the Company or such Restricted Subsidiary, other than liabilities that are by their terms subordinated to the Secured Obligations or Notes, that are owed to Bidco or a Restricted Subsidiary that (x) are assumed by the transferee of any such assets (or a third party on behalf of the transferee) or are otherwise extinguished by the transferee in connection with such transfer) or (y) are otherwise cancelled or terminated in connection with the transaction with such transferee (other than intercompany debt owed to Bidco or its Restricted Subsidiaries) and, in each case, Asset Sale and for which Bidco and all of its the Company or such Restricted Subsidiaries have Subsidiary has been validly releasedreleased by all creditors in writing;
(B) any securities, notes or other obligations or assets received by Bidco the Company or such Restricted Subsidiary from such transferee that are converted by Bidco the Company or such Restricted Subsidiary into cash or Cash Equivalents (to the extent of the cash received) or Cash Equivalents received) within 180 days following the closing of such Asset Sale;; and
(C) Indebtedness of any Restricted Subsidiary that ceases to be a Restricted Subsidiary as a result of such Asset Sale (other than intercompany debt owed to Bidco or any Restricted Subsidiary), to the extent that Bidco and each other Restricted Subsidiary are released from any guarantee of payment of the principal amount of such Indebtedness in connection with such Asset Sale in accordance with the terms of this Agreement,
(D) consideration consisting of Indebtedness of a Borrower or a Guarantor (other than intercompany debt owed to Bidco or any Restricted Subsidiary and other than Subordinated Indebtedness) received after the Effective Date from Persons who are not Bidco, Holdings or any Restricted Subsidiary;
(E) any Designated Non-cash Noncash Consideration received by Bidco the Company or such Restricted Subsidiary in such Asset Sale having an aggregate Fair Market Value fair market value, taken together with all other Designated Non-cash Noncash Consideration received pursuant to this clause subclause (EC) that is at that time outstandinghas not previously been converted to cash, not to exceed the greater of (x) $225,000,000 100.0 million and 30(y) 3.5% of Consolidated EBITDA for the most recently ended Test Period Total Assets at the time of the receipt of such Designated Non-cash Noncash Consideration, calculated on a Pro Forma Basis (with the Fair Market Value fair market value of each such item of Designated Non-cash Noncash Consideration being measured pursuant to this clause (E) at Bidco’s option, either at the time of contractually agreeing to such Asset Sale or at the time received and, in either case, and without giving effect to subsequent changes in value); and
(F) any Investment, Capital Stockin each case, assets, property or capital or other expenditure of the kind referred to in Section 6.04(b)(ii) shall be deemed to be cash or Cash Equivalents for purposes of this provision subclause (2) and for no other purpose.
(b) Within 365 days after any of the Reinvestment Period 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 clause (2), are used or useful in a Similar Business or replace the businesses, properties and assets that are the subject of such Asset Sale; or
(4) any combination of the foregoing. Within 35 days after Bidcothe 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 SaleSale of assets that do not constitute Collateral, Bidco the Company or such Restricted Subsidiary shall may, at its option, apply an amount equal to the Net Proceeds in excess of the Minimum Cash Consideration from such Asset Sale,Sale of assets that do not constitute Collateral:
(i) (A1) to prepay Loans or Indebtedness in accordance with Section 2.10(c) or (B) to the extent not required to prepay Loans pursuant to Section 2.10(c), to be retained by Bidco and/or Restricted Subsidiaries; or
(ii) to make investments in Bidco and its Subsidiaries; provided that Bidco and the Restricted Subsidiaries will be deemed to have complied with this clause (ii) if and to the extent that, within the Reinvestment Period after the Asset Sale that generated the Net Proceeds, Bidco or such Restricted Subsidiary has entered into and not abandoned or rejected a binding agreement or letter of intent to consummate any such investment described in this clause (ii) 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 such commitment is later cancelled or terminated for any reason before the Net Proceeds are applied in connection therewith, Bidco or such Restricted Subsidiary enters into another Acceptable Commitment (a “Second Commitment”) within 180 days of such cancellation or termination; provided that if any Second Commitment is later cancelled or terminated for any reason before such Net Proceeds are applied, then Bidco or such Restricted Subsidiary shall prepay the Loans in accordance with Section 2.10(c).
(c) 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 the Revolving Facility or any other revolving credit facility or otherwise use such Net Proceeds in any manner not prohibited by this Agreement. Bidco or any Restricted Subsidiary, as the case may be, may elect to invest in Bidco and its Subsidiaries prior to receiving the Net Proceeds attributable to any given Asset Sale (provided that such investment shall be made no earlier than execution of a definitive agreement for the relevant Asset Sale) and deem the amount so invested to be applied pursuant to and in accordance with clause (b)(ii) above with respect to such Asset Sale.permanently reduce:
Appears in 1 contract
Samples: Indenture (Aleris Corp)
Asset Sales. (a) Bidco The Borrower shall not, and shall not permit any of its Restricted Subsidiaries to, consummate cause, make or suffer to exist an Asset Sale, unless:
(i) Bidco the Borrower or such Restricted Subsidiary, as the case may be, receives consideration at the time of such Asset Sale at least equal to the Fair Market Value (as determined at the time of contractually agreeing to such Asset Sale) fair market value of the assets or Equity Interests issued or sold or otherwise disposed of; and;
(ii) except in the case of a Permitted Non-Core Asset SwapSale, if immediately before and after giving effect to such Asset Sale, no Event of Default has occurred and is continuing or would result therefrom;
(iii) except in the property case of a Permitted Asset Swap or assets sold or otherwise disposed of have a Fair Market Value in excess of the greater of $375,000,000 and 50% of Consolidated EBITDA for the most recently ended Test Period at the time of such disposition, calculated on a Pro Forma BasisPermitted Non-Core Asset Sale, at least 7575.00% of the consideration therefor received by Bidco the Borrower or such Restricted Subsidiary, as the case may be, is in the form of (x) cash or Cash Equivalents, (y) Replacement Assets or (z) any combination of the consideration specified in clauses (x) and (y); provided that the amount of:
(A) any liabilities, contingent liabilities (as shown on the Borrower’s or otherwise, such Restricted Subsidiary’s most recent balance sheet or in the footnotes thereto) of Bidco the Borrower or such Restricted Subsidiary, other than liabilities that are by their terms subordinated to the Secured Obligations or and that are owed to Bidco or a Restricted Subsidiary that (x) are assumed by the transferee of any such assets (or a third party in connection with such transfer) or (y) are otherwise cancelled or terminated in connection with the transaction with such transferee (other than intercompany debt owed to Bidco or its Restricted Subsidiaries) and, in each case, for which Bidco and all of its Restricted Subsidiaries have been validly releasedassets;
(B) any securities, notes or other obligations or assets received by Bidco the Borrower or such Restricted Subsidiary from such transferee that are converted by Bidco the Borrower or such Restricted Subsidiary into cash or Cash Equivalents (to the extent of the cash or Cash Equivalents received) within 180 one hundred eighty (180) days following the closing of such Asset Sale;; and
(C) Indebtedness of any Restricted Subsidiary that ceases to be a Restricted Subsidiary as a result of such Asset Sale (other than intercompany debt owed to Bidco or any Restricted Subsidiary), to the extent that Bidco and each other Restricted Subsidiary are released from any guarantee of payment of the principal amount of such Indebtedness in connection with such Asset Sale in accordance with the terms of this Agreement,
(D) consideration consisting of Indebtedness of a Borrower or a Guarantor (other than intercompany debt owed to Bidco or any Restricted Subsidiary and other than Subordinated Indebtedness) received after the Effective Date from Persons who are not Bidco, Holdings or any Restricted Subsidiary;
(E) any Designated Non-cash Cash Consideration received by Bidco the Borrower or such any of its Restricted Subsidiary Subsidiaries in such Asset Sale having an aggregate Fair Market Value fair market value, taken together with all other Designated Non-cash Cash Consideration received since the date of this Agreement pursuant to this clause (Eiii) that is at that time outstanding, not to exceed the greater of (x) $225,000,000 7,500,000 and 30(y) 7.50% of Consolidated EBITDA for the most recently ended Test Period at the time of the receipt of such Designated Non-cash Consideration, calculated on a Pro Forma Basis LTM CEBITDA (with the Fair Market Value fair market value of each such item of Designated Non-cash Cash Consideration being measured pursuant to this clause (E) at Bidco’s option, either at the time of contractually agreeing to such Asset Sale or at the time received and, in either case, re- ceived and without giving effect to subsequent changes in value); and
(F) any Investment, Capital Stock, assets, property or capital or other expenditure of the kind referred to in Section 6.04(b)(ii) shall be deemed to be cash or Cash Equivalents for purposes of this provision and for no other purpose.; and
(b) Within the Reinvestment Period limitation set forth in clause (a) above shall not apply to other Asset Sales in an amount, taken together with all other Asset Sales made pursuant to this clause (b), not to exceed (i) the greater of $10,00,000 and 10.00% of LTM CEBITDA (calculated at the time of determination) in any calendar year and (ii) the greater of $40,000,000 and 40.00% of LTM CEBITDA (calculated at the time of determination) in aggregate; and
(c) after Bidcothe Borrower’s or any Restricted Subsidiary’s receipt of the Net Cash Proceeds of any Asset Sale, Bidco the Borrower or such Restricted Subsidiary shall apply an amount equal to the Net Cash Proceeds from such Asset Sale,
(i) (A) to prepay Loans or Indebtedness in accordance with Section 2.10(c) or (B) to the extent not required to prepay Loans pursuant to Section 2.10(c), to be retained by Bidco and/or Restricted Subsidiaries; or
(ii) to make investments in Bidco and its Subsidiaries; provided that Bidco and the Restricted Subsidiaries will be deemed to have complied with this clause (ii) Sale if and to the extent that, within the Reinvestment Period after the Asset Sale that generated the Net Proceeds, Bidco or such Restricted Subsidiary has entered into and not abandoned or rejected a binding agreement or letter of intent to consummate any such investment described in this clause (ii) 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 such commitment is later cancelled or terminated for any reason before the Net Proceeds are applied in connection therewith, Bidco or such Restricted Subsidiary enters into another Acceptable Commitment (a “Second Commitment”) within 180 days of such cancellation or termination; provided that if any Second Commitment is later cancelled or terminated for any reason before such Net Proceeds are applied, then Bidco or such Restricted Subsidiary shall prepay the Loans in accordance with required by Section 2.10(c5.2(c).
(c) 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 the Revolving Facility or any other revolving credit facility or otherwise use such Net Proceeds in any manner not prohibited by this Agreement. Bidco or any Restricted Subsidiary, as the case may be, may elect to invest in Bidco and its Subsidiaries prior to receiving the Net Proceeds attributable to any given Asset Sale (provided that such investment shall be made no earlier than execution of a definitive agreement for the relevant Asset Sale) and deem the amount so invested to be applied pursuant to and in accordance with clause (b)(ii) above with respect to such Asset Sale.
Appears in 1 contract
Samples: Amendment and Restatement Agreement (LEGALZOOM.COM, Inc.)
Asset Sales. (a) Bidco shall The Borrower will not, and shall will not permit any of its Restricted Subsidiaries Subsidiary to, consummate an Asset Salesell, unless:
(i) Bidco transfer, lease, license or such Restricted otherwise dispose of any asset, including any Capital Stock of any Subsidiary, as nor will the case may beBorrower permit any Subsidiary to issue any Capital Stock in such Subsidiary, receives consideration at the time of such Asset Sale at least equal to the Fair Market Value (as determined at the time of contractually agreeing to such Asset Sale) of the assets sold or otherwise disposed of; and
(ii) except in the case of a Permitted Asset Swapthe Borrower and the Subsidiaries:
(a) sales or other dispositions of inventory or used, if obsolete, worn-out or surplus equipment in the property ordinary course of business; provided that in the case of equipment only, (i) any such sale or disposition of assets sold or otherwise disposed of have a is for Fair Market Value in excess of the greater of $375,000,000 and 50% of Consolidated EBITDA for the most recently ended Test Period at the time of such disposition, calculated on a Pro Forma Basis, (ii) at least 75% of the value of the consideration therefor consists of either (A) cash or Permitted Cash Equivalents or (B) the assumption by the buyer in such sale or disposition of assets of Pari Passu Indebtedness and the corresponding release of the obligations of the Borrower or and its Subsidiaries thereunder;
(b) sales, transfers, leases, licenses, issuances and dispositions to the Borrower or any Subsidiary; provided that any Subsidiary that is not a Wholly Owned Subsidiary may issue additional shares of its common stock to its owners and/or shareholders on a pro rata basis;
(c) sales, transfers and dispositions of assets on or after the date hereof that are not permitted by any other clause of this Section for aggregate consideration not to exceed $50,000,000 in an aggregate amount during the period from the date hereof through the Maturity Date; provided that (i) any such sale, transfer or disposition of assets is for Fair Market Value; (ii) at least 75% of the value of the consideration received by Bidco the transferor in such sale, transfer or other disposition consists of either (A) cash or Permitted Cash Equivalents or (B) the assumption by the transferee in such Restricted Subsidiarysale, transfer or disposition of assets of Pari Passu Indebtedness and the corresponding release of the obligations of the Borrower and the Subsidiaries thereunder; (iii) the Net Cash Proceeds from such sale, transfer or disposition of assets are applied to a Permitted Use; (iv) the non-cash proceeds from such sale, transfer or disposition of assets are pledged as Collateral to the case may beextent required by Section 5.15(b), (v) Section 6.13 and the proviso at the end of Section 6.06 are complied with to the extent applicable; and (vi) no Default or Event of Default is in existence at the form time of any such sale, transfer or disposition of assets or would be caused thereby;
(d) Sale and Leaseback Transactions as permitted pursuant to Section 6.03;
(e) the Borrower and the Subsidiaries may make on or after the date hereof exchanges of assets for either assets or equity interests in Wireless Communications Businesses; provided that (i) the consideration received by the Borrower and its Subsidiaries in any such exchange have a Fair Market Value equal to the assets so exchanged; (ii) the aggregate Fair Market Value of all such exchanges does not exceed $100,000,000 during any calendar year or $200,000,000 in an aggregate amount during the period from the date hereof through the Maturity Date; (iii) no more than 25% of the value of the consideration received by the Borrower and its Subsidiaries in any such exchange consists of cash or Permitted Cash Equivalents; provided that (iv) no equity interest shall be received by the amount of:
(A) any liabilities, contingent or otherwise, Borrower and its Subsidiaries as consideration in such exchange unless the entity issuing such interest shall become a Wholly Owned Subsidiary of Bidco the Borrower or such Restricted SubsidiarySubsidiary and Section 5.14 is complied with; (v) all other consideration received by the Borrower and its Subsidiaries in such exchange shall consist of Licenses or other operating assets used in, other than liabilities that or the assets of a business unit operating in, the Wireless Communications Business; (vi) the Net Cash Proceeds from such exchange are by their terms subordinated applied to a Permitted Use; (vii) the non-cash proceeds from such exchange are pledged as Collateral to the Secured Obligations extent required by Section 5.15(b); (viii) Section 6.13 and the proviso at the end of Section 6.06 are complied with to the extent applicable; and (ix) no Default or that are owed to Bidco or a Restricted Subsidiary that (x) are assumed by Event of Default is in existence at the transferee time of any such assets exchange or would be caused thereby;
(f) the sale or other disposition of Permitted Cash Equivalents for cash or other Permitted Cash Equivalents;
(g) the surrender or waiver of contract rights or settlement, release or surrender of a third party contract, tort or other litigation claim in connection with such transferthe ordinary course of business;
(h) the lease, sublease or licensing of any property in the ordinary course of business;
(yi) are otherwise cancelled a Restricted Payment that is not prohibited by Section 6.08;
(j) the sale or terminated discount of accounts receivable arising in the ordinary course of business in connection with the compromise or collection thereof;
(k) the granting of Liens not prohibited by this Agreement;
(l) the abandonment of paging Licenses and LMDS Licenses owned as of the date hereof that are not material to the Borrower and the Subsidiaries, taken as a whole;
(m) a transaction, or series of related transactions, made on or after the date hereof that is a sale, transfer or disposition of assets and/or an exchange of assets for either assets or equity interests in Wireless Communications Businesses for aggregate consideration not to exceed $100,000,000 in an aggregate amount; provided that (i) any such transaction with that is a sale, transfer or disposition shall be subject to all of the clauses contained in the proviso to Section 6.06(c) and (ii) any such transferee transaction that is an exchange shall be subject to all of the clauses contained in the proviso to Section 6.06(e) (other than intercompany debt owed to Bidco or its Restricted Subsidiaries) and, in each case, for which Bidco and all of its Restricted Subsidiaries have been validly released;
(B) any securities, notes or other obligations or assets received by Bidco or such Restricted Subsidiary from such transferee that are converted by Bidco or such Restricted Subsidiary into cash or Cash Equivalents (to the extent of the cash or Cash Equivalents received) within 180 days following the closing of such Asset Sale;
(C) Indebtedness of any Restricted Subsidiary that ceases to be a Restricted Subsidiary as a result of such Asset Sale (other than intercompany debt owed to Bidco or any Restricted Subsidiary), to the extent that Bidco and each other Restricted Subsidiary are released from any guarantee of payment of the principal amount of such Indebtedness in connection with such Asset Sale in accordance with the terms of this Agreement,
(D) consideration consisting of Indebtedness of a Borrower or a Guarantor (other than intercompany debt owed to Bidco or any Restricted Subsidiary and other than Subordinated Indebtedness) received after the Effective Date from Persons who are not Bidco, Holdings or any Restricted Subsidiary;
(E) any Designated Non-cash Consideration received by Bidco or such Restricted Subsidiary in such Asset Sale having an aggregate Fair Market Value taken together with all other Designated Non-cash Consideration received pursuant to this clause (Eii) that is at that time outstanding, not to exceed the greater of $225,000,000 and 30% of Consolidated EBITDA for the most recently ended Test Period at the time of the receipt of such Designated Non-cash Consideration, calculated on a Pro Forma Basis (with the Fair Market Value of each such item of Designated Non-cash Consideration being measured pursuant to this clause (E) at Bidco’s option, either at the time of contractually agreeing to such Asset Sale or at the time received and, in either case, without giving effect to subsequent changes in valuethereof); and
(Fn) any Investmentabandonment of intellectual property assets in the ordinary course of business that are not material to the Borrower and Subsidiaries, Capital Stock, assets, property or capital or taken as a whole; provided that under no circumstance (other expenditure of the kind referred than pursuant to in Section 6.04(b)(ii6.06(b)) shall be deemed to be Cash Equivalents for purposes any sale, transfer or disposition of assets or issuance of Capital Stock otherwise permitted under this provision and for no other purpose.
Section 6.06 (b) Within or the Reinvestment Period after Bidco’s or any Restricted Subsidiary’s receipt of the Net Proceeds of any Asset Sale, Bidco or such Restricted Subsidiary shall apply an amount equal to the Net Proceeds from such Asset Sale,
(inon-cash consideration in connection therewith) result in (A) the disposition of less than the entire interest of the Borrower and the Subsidiaries in any entity so sold, transferred or disposed of, (B) the acquisition of any equity interests in an entity that does not thereby become a Wholly Owned Subsidiary except to prepay Loans or Indebtedness in accordance with the extent expressly permitted by Section 2.10(c6.05(h) or (B) to the extent not required to prepay Loans pursuant to Section 2.10(cq), to be retained by Bidco and/or Restricted Subsidiaries; or
or (iiC) to make investments a Material Disposition or Material Acquisition unless, in Bidco and its Subsidiaries; provided that Bidco and the Restricted Subsidiaries will be deemed to have complied with case of this clause (ii) if C), the Borrower shall be in Pro Forma Compliance after giving effect thereto and shall have delivered to the extent that, within the Reinvestment Period after the Asset Sale that generated the Net Proceeds, Bidco or such Restricted Subsidiary has entered into and not abandoned or rejected Administrative Agent a binding agreement or letter of intent to consummate any such investment described in this clause (ii) 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 such commitment is later cancelled or terminated for any reason before the Net Proceeds are applied in connection therewith, Bidco or such Restricted Subsidiary enters into another Acceptable Commitment (a “Second Commitment”) within 180 days of such cancellation or termination; provided that if any Second Commitment is later cancelled or terminated for any reason before such Net Proceeds are applied, then Bidco or such Restricted Subsidiary shall prepay the Loans in accordance with Section 2.10(c).
(c) 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 the Revolving Facility or any other revolving credit facility or otherwise use such Net Proceeds in any manner not prohibited by this Agreement. Bidco or any Restricted Subsidiary, as the case may be, may elect to invest in Bidco and its Subsidiaries prior to receiving the Net Proceeds attributable to any given Asset Sale (provided that such investment shall be made no earlier than execution certificate of a definitive agreement for the relevant Asset Sale) and deem the amount so invested to be applied pursuant to and in accordance with clause (b)(ii) above with respect to Financial Officer setting forth reasonably detailed calculations demonstrating such Asset SalePro Forma Compliance.
Appears in 1 contract
Asset Sales. (a) Bidco shall The Company will not, and shall will not permit any of its Restricted Subsidiaries to, consummate an Asset Sale, Sale unless:
(i1) Bidco the Company (or such the Restricted Subsidiary, as the case may be, ) receives consideration at the time of such Asset Sale at least equal to the Fair Market Value (as determined at the time of contractually agreeing to such Asset Sale) of the assets or Equity Interests issued or sold or otherwise disposed of; and
(ii2) except in the case of a Permitted Asset Swap, if the property or assets sold or otherwise disposed of have a Fair Market Value in excess of the greater of $375,000,000 and 50% of Consolidated EBITDA for the most recently ended Test Period at the time of such disposition, calculated on a Pro Forma Basis, (x) at least 75% of the consideration therefor received in respect of such Asset Sale by Bidco the Company or such Restricted Subsidiary, as the case may be, Subsidiary is in the form of cash or Cash Equivalents; provided that Equivalents or (y) the amount ofFair Market Value of all forms of consideration other than cash and Cash Equivalents received for all Asset Sales since the Issue Date does not exceed in the aggregate the greater of (i) 3% of the Adjusted Consolidated Net Tangible Assets of the Company at the time each determination is made or (ii) $20 million. For purposes of this provision, each of the following will be deemed to be cash:
(A) any liabilities, contingent or otherwiseas shown on the Company’s most recent consolidated balance sheet, of Bidco the Company or such any Restricted Subsidiary, Subsidiary (other than liabilities contingent liabilities, Subordinated Debt and any obligations in respect of preferred stock) or costs and expenses of operating the property that are by their terms subordinated to was the Secured Obligations or subject of the Asset Sale that are owed to Bidco or a Restricted Subsidiary that (x) are assumed by the transferee of any such assets or Equity Interests pursuant to (i) a customary novation agreement (or other legal documentation with the same effect) that includes a third party in connection with full release of the Company or such transfer) Restricted Subsidiary from any and all liability therefor or (yii) are otherwise cancelled or terminated an assignment agreement that includes, in connection with lieu of such release, the transaction with such agreement of the transferee (other than intercompany debt owed to Bidco or its parent company to indemnify and hold harmless the Company or such Restricted Subsidiaries) andSubsidiary from and against any loss, liability or other cost in each case, for which Bidco and all respect of its Restricted Subsidiaries have been validly releasedsuch assumed liability;
(B) any securities, notes or other obligations or assets received by Bidco or such Restricted Subsidiary from such transferee that are converted by Bidco or such Restricted Subsidiary into cash or Cash Equivalents (to the extent of the cash or Cash Equivalents received) within 180 days following the closing of such Asset SaleLiquid Securities;
(C) Indebtedness of any Restricted Subsidiary that ceases to be a Restricted Subsidiary as a result of such Asset Sale (Promissory notes or other than intercompany debt owed to Bidco or any Restricted Subsidiary), to the extent that Bidco and each other Restricted Subsidiary are released from any guarantee of payment obligations of the principal amount of such Indebtedness transferee in connection with such Asset Sale in accordance with the terms of this Agreement,
(D) consideration consisting of Indebtedness of a Borrower or a Guarantor (other than intercompany debt owed to Bidco or any Restricted Subsidiary and other than Subordinated Indebtedness) received after the Effective Date from Persons who are not Bidco, Holdings or any Restricted Subsidiary;
(E) any Designated Non-cash Consideration received by Bidco or such Restricted Subsidiary in such Asset Sale having an aggregate Fair Market Value taken together with all other Designated Non-cash Consideration received pursuant to this clause (E) that is at that time outstanding, not to exceed the greater of $225,000,000 and 30% of Consolidated EBITDA for the most recently ended Test Period at the time of the receipt of such Designated Non-cash Consideration, calculated on a Pro Forma Basis (with the Fair Market Value of each such item of Designated Non-cash Consideration being measured pursuant to this clause (E) at Bidco’s option, either at the time of contractually agreeing to such Asset Sale or at the time received and, in either case, without giving effect to subsequent changes in value); and
(F) any Investment, Capital Stock, assets, property or capital or other expenditure of the kind referred to in Section 6.04(b)(ii) shall be deemed to be Cash Equivalents for purposes of this provision and for no other purpose.
(b) Within the Reinvestment Period after Bidco’s or any Restricted Subsidiary’s receipt of the Net Proceeds of any Asset Sale, Bidco or such Restricted Subsidiary shall apply an amount equal to the Net Proceeds from such Asset Sale,
(i) (A) to prepay Loans or Indebtedness in accordance with Section 2.10(c) or (B) to the extent not required to prepay Loans pursuant to Section 2.10(c), to be retained by Bidco and/or Restricted Subsidiaries; or
(ii) to make investments in Bidco and its Subsidiaries; provided that Bidco and the Restricted Subsidiaries will be deemed to have complied with this clause (ii) if and to the extent that, within the Reinvestment Period after the Asset Sale that generated the Net Proceeds, Bidco are converted to cash or such Restricted Subsidiary has entered into and not abandoned or rejected a binding agreement or letter of intent to consummate any such investment described in this clause (ii) with the good faith expectation that such Net Proceeds will be applied to satisfy such commitment Cash Equivalents within 180 days of such commitment (an “Acceptable Commitment”) and, in the event any such commitment is later cancelled or terminated for any reason before the Net Proceeds are applied in connection therewith, Bidco or such Restricted Subsidiary enters into another Acceptable Commitment (a “Second Commitment”) within 180 days of such cancellation or termination; provided that if any Second Commitment is later cancelled or terminated for any reason before such Net Proceeds are applied, then Bidco or such Restricted Subsidiary shall prepay the Loans in accordance with Section 2.10(c).
(c) 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 the Revolving Facility or any other revolving credit facility or otherwise use such Net Proceeds in any manner not prohibited by this Agreement. Bidco or any Restricted Subsidiary, as the case may be, may elect to invest in Bidco and its Subsidiaries prior to receiving the Net Proceeds attributable to any given Asset Sale (provided that such investment shall be made no earlier than execution of a definitive agreement for the relevant Asset Sale) and deem the amount so invested to be applied pursuant to and in accordance with clause (b)(ii) above with respect to such Asset Sale.; and
Appears in 1 contract
Samples: Indenture (SYNERGY RESOURCES Corp)
Asset Sales. (a) Bidco shall The Company will not, and shall will not permit any of its Restricted Subsidiaries Subsidiary to, consummate an Asset Sale, unless:
(i1) Bidco the Company or such Restricted Subsidiary, as the case may be, receives consideration at the time of such Asset Sale at least equal to the Fair Market Value (as determined at the time of contractually agreeing to such Asset Sale) of the assets or Equity Interests sold or otherwise disposed of; and;
(ii2) except with respect to any Asset Sale involving consideration or property in the case excess of a Permitted Asset Swap$10.0 million, if the property or assets sold or otherwise disposed of have a such Fair Market Value in excess is determined by the Board of Directors of TER and evidenced by a resolution of the greater Board of $375,000,000 and 50% of Consolidated EBITDA for Directors set forth in an Officers’ Certificate delivered to the most recently ended Test Period at the time of such disposition, calculated on a Pro Forma Basis, Trustee;
(3) at least 7585% of the consideration therefor received by Bidco the Company or such Restricted Subsidiary, as the case may be, is in the form of cash or Cash Equivalents; provided that the amount of:
(A) any liabilitiesliabilities (as shown on the Company’s, contingent or otherwise, of Bidco or such Restricted Subsidiary’s, most recent balance sheet or in the footnotes thereto) (other than contingent liabilities and liabilities that are by their terms subordinated to the Secured Obligations Notes or such Restricted Subsidiary’s Guarantee) that are owed to Bidco or a Restricted Subsidiary that (x) are assumed by the transferee of any such assets (or a third party in connection with such transfer) or (y) are otherwise cancelled or terminated in connection with the transaction with such transferee (other than intercompany debt owed to Bidco or its Restricted Subsidiaries) and, in each case, and for which Bidco the Company and all of its Restricted Subsidiaries have been validly released;released in writing by all creditors of such liabilities, and
(B) any securities, notes or other obligations or assets securities received by Bidco the Company or such Restricted Subsidiary from such transferee that are converted by Bidco the Company or such Restricted Subsidiary into cash or Cash Equivalents (to the extent of the cash or Cash Equivalents received) within 180 days 30 Business Days following the closing of such Asset Sale;
(C) Indebtedness of any Restricted Subsidiary that ceases to be a Restricted Subsidiary as a result of such Asset Sale (other than intercompany debt owed to Bidco or any Restricted Subsidiary), to the extent that Bidco and each other Restricted Subsidiary are released from any guarantee of payment of the principal amount of such Indebtedness in connection with such Asset Sale in accordance with the terms of this Agreement,
(D) consideration consisting of Indebtedness of a Borrower or a Guarantor (other than intercompany debt owed to Bidco or any Restricted Subsidiary and other than Subordinated Indebtedness) received after the Effective Date from Persons who are not Bidco, Holdings or any Restricted Subsidiary;
(E) any Designated Non-cash Consideration received by Bidco or such Restricted Subsidiary in such Asset Sale having an aggregate Fair Market Value taken together with all other Designated Non-cash Consideration received pursuant to this clause (E) that is at that time outstanding, not to exceed the greater of $225,000,000 and 30% of Consolidated EBITDA for the most recently ended Test Period at the time of the receipt of such Designated Non-cash Consideration, calculated on a Pro Forma Basis (with the Fair Market Value of each such item of Designated Non-cash Consideration being measured pursuant to this clause (E) at Bidco’s option, either at the time of contractually agreeing to such Asset Sale or at the time received and, in either case, without giving effect to subsequent changes in value); and
(F) any Investment, Capital Stock, assets, property or capital or other expenditure of the kind referred to in Section 6.04(b)(ii) shall be deemed to be Cash Equivalents 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.
(b) Within If the Reinvestment Period assets sold by the Company or any of its Restricted Subsidiaries 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 Bidcothe Company’s or any Restricted Subsidiary’s receipt of such Net Asset Sale Proceeds, the Net Proceeds of any Asset Sale, Bidco Company or such Restricted Subsidiary shall Subsidiary, at its option, may apply an amount equal to the Net Asset Sale Proceeds from such Asset Sale,:
(i) (A) to prepay Loans or Indebtedness in accordance with Section 2.10(c) or (B1) to the extent not required to prepay Loans pursuant to Section 2.10(c)repayment of Priority Lien Debt and, if such Priority Lien Debt is revolving credit Indebtedness, to be retained by Bidco and/or Restricted Subsidiaries; correspondingly reduce commitments with respect thereto, or
(ii2) to make investments an investment in Bidco and its Subsidiaries; provided that Bidco and the Restricted Subsidiaries will be deemed to have complied with this clause (iia) if and to the extent thatany one or more Permitted Businesses, within the Reinvestment Period after the Asset Sale that generated the Net Proceeds, Bidco or such Restricted Subsidiary has entered into and not abandoned or rejected a binding agreement or letter of intent to consummate any such investment described in this clause (ii) 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 such commitment is later cancelled or terminated for any reason before the Net Proceeds are applied in connection therewith, Bidco or such Restricted Subsidiary enters into another Acceptable Commitment (a “Second Commitment”) within 180 days of such cancellation or termination; provided that if any Second Commitment is later cancelled or terminated for any reason before such Net Proceeds are applied, then Bidco or such Restricted Subsidiary shall prepay the Loans in accordance with Section 2.10(c).
(c) 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 the Revolving Facility or any other revolving credit facility or otherwise use such Net Proceeds investment in any manner not prohibited by this Agreement. Bidco business is in the form of the acquisition of Capital Stock, such investment results in the Company or any a Restricted Subsidiary, as the case may be, may elect to invest owning an amount of the Capital Stock of such Person such that it constitutes a Restricted Subsidiary, (b) capital expenditures or (c) acquisitions of other assets (other than the payment of ordinary operating expenses), in Bidco each of (a), (b) and its Subsidiaries prior to receiving (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 attributable of Collateral shall be owned by the Company or by a Guarantor and shall not be subject to any given 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) If the assets sold by the Company or any of its Restricted Subsidiaries from an Asset Sale (provided that such investment shall be made no earlier than execution or series of a definitive agreement related Asset Sales generated 25% or more of the Company’s consolidated EBITDA for the relevant most recent twelve-month period for which internal financial statements are available at the time of such sale (an “Extraordinary Asset Sale) and deem ”), then within 10 Business Days after the amount so invested 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 applied pursuant to and repaid with such proceeds in accordance with clause its terms.
(b)(iid) above with respect 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 SaleSale 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 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 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 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 4.12, 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.
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Samples: Indenture (Trump Entertainment Resorts Holdings Lp)
Asset Sales. (a) Bidco The Issuer shall not, and shall not cause or permit any of its Restricted Subsidiaries to, directly or indirectly, consummate an any Asset Sale, Sale unless:
(i) Bidco the Issuer or such Restricted Subsidiary, as the case may be, Subsidiary receives consideration at the time of such Asset Sale at least equal to the Fair Market Value (as determined at of the time of contractually agreeing to assets included in such Asset Sale) of the assets sold or otherwise disposed of; and
(ii) except in the case of a Permitted Asset Swap, if the property or assets sold or otherwise disposed of have a Fair Market Value in excess of the greater of $375,000,000 and 50% of Consolidated EBITDA for the most recently ended Test Period at the time of such disposition, calculated on a Pro Forma Basis, at least 75% of the total consideration therefor 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 Bidco a Person other than the Issuer or a Restricted Subsidiary, or (II) expunged by the holder of such liability, and with respect to which, in each case, the Issuer or such Restricted Subsidiary, as the case may be, is in the form of cash or Cash Equivalents; provided that the amount of:
(A) any liabilities, contingent or otherwise, of Bidco or such Restricted Subsidiary, other than liabilities that are by their terms subordinated to the Secured Obligations or that are owed to Bidco or a Restricted Subsidiary that (x) are assumed by the transferee of any such assets (or a third party in connection unconditionally released from further liability with such transfer) or (y) are otherwise cancelled or terminated in connection with the transaction with such transferee (other than intercompany debt owed to Bidco or its Restricted Subsidiaries) and, in each case, for which Bidco and all of its Restricted Subsidiaries have been validly releasedrespect thereto;
(B) the amount of any securities, notes or other obligations or assets securities received by Bidco or such Restricted Subsidiary from such transferee Transferee that are within 180 days repaid, converted by Bidco into or such Restricted Subsidiary into sold or otherwise disposed of for cash or Temporary Cash Equivalents Investments (to the extent of the cash or Temporary Cash Equivalents Investments actually so received) within 180 days following the closing of such Asset Sale);
(C) Indebtedness of any contingent earn-out obligation received by the Issuer or any Restricted Subsidiary that ceases to be a Restricted Subsidiary as a result of in such Asset Sale (having an aggregate potential payout, taken together with all other than intercompany debt owed contingent earn-out obligations received pursuant to Bidco this clause since the Issue Date that are at the time outstanding and held by the Issuer or any Restricted Subsidiary), not to the extent that Bidco and each other Restricted Subsidiary are released from any guarantee of payment of the principal amount of such Indebtedness in connection with such Asset Sale in accordance with the terms of this Agreement,exceed $20.0 million; and
(D) consideration consisting of Indebtedness of a Borrower or a Guarantor (other than intercompany debt owed to Bidco or any Restricted Subsidiary and other than Subordinated Indebtedness) received after the Effective Date from Persons who are not Bidco, Holdings or any Restricted Subsidiary;
(E) any Designated Non-cash Noncash Consideration received by Bidco the Issuer or such any Restricted Subsidiary in such Asset Sale having an aggregate Fair Market Value Value, taken together with all other Designated Non-cash Noncash Consideration received pursuant to this clause (E) 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) $225,000,000 and 3025.0 million or (y) 5.5% of Consolidated EBITDA for the most recently ended Test Period Net Tangible Assets at the time of the receipt of such Designated Non-cash Noncash Consideration, calculated on a Pro Forma Basis (with the Fair Market Value of each such item of Designated Non-cash Noncash Consideration being measured pursuant to this clause (E) at Bidco’s option, either at the time of contractually agreeing to such Asset Sale or at the time received and, in either case, and without giving effect to subsequent changes in value. 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); and
(F) any Investment, Capital Stockthen the date of such repayment, assetsconversion, property or capital sale or other expenditure of the kind referred to in Section 6.04(b)(ii) disposition shall be deemed to constitute the date of an Asset Sale hereunder and the Net Available Proceeds thereof shall be Cash Equivalents for purposes of applied in accordance with this provision and for no other purposeSection 4.10.
(b) Within If the Reinvestment Period after Bidco’s Issuer or any Restricted Subsidiary’s receipt of the Net Proceeds of any Subsidiary engages in an Asset Sale, Bidco the Issuer or such a Restricted Subsidiary shall 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 (1) 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), (ii) and (iii), 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.”
(ic) When the aggregate amount of Excess Proceeds equals or exceeds $20.0 million, the Issuer will be required to (Aand at any time the Issuer may) make an offer to prepay Loans 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 Indebtedness 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 2.10(c) or (B) 5.01, the Transferee shall be deemed to have sold for cash at Fair Market Value the extent not required to prepay Loans pursuant to Section 2.10(c), to be retained by Bidco and/or Restricted Subsidiaries; or
(ii) to make investments in Bidco and its Subsidiaries; provided that Bidco assets of the Issuer and the Restricted Subsidiaries will be not so Transferred for purposes of this covenant, and shall comply with the provisions of this Section 4.10 with respect to such deemed sale as if it were an Asset Sale (with such Fair Market Value being deemed to have complied with this clause (ii) if and to the extent that, within the Reinvestment Period after the Asset Sale that generated the be Net Proceeds, Bidco or Available Proceeds for such Restricted Subsidiary has entered into and not abandoned or rejected a binding agreement or letter of intent to consummate any such investment described in this clause (ii) 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 such commitment is later cancelled or terminated for any reason before the Net Proceeds are applied in connection therewith, Bidco or such Restricted Subsidiary enters into another Acceptable Commitment (a “Second Commitment”) within 180 days of such cancellation or termination; provided that if any Second Commitment is later cancelled or terminated for any reason before such Net Proceeds are applied, then Bidco or such Restricted Subsidiary shall prepay the Loans in accordance with Section 2.10(cpurpose).
(ce) Pending the final application of any Net Proceeds pursuant to this covenantAvailable Proceeds, the holder of such Net Proceeds Issuer may apply such Net Proceeds temporarily to reduce Indebtedness outstanding under the Revolving Facility or any other revolving credit facility borrowings or otherwise use such invest the Net Available Proceeds in any manner that is not prohibited by this Agreement. Bidco 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 Restricted Subsidiary, as the case may be, may elect to invest in Bidco and its Subsidiaries prior to receiving the Net Proceeds attributable to any given Asset Sale (provided that such investment shall be made no earlier than execution purchase of a definitive agreement for the relevant Asset Sale) and deem the amount so invested to be applied 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 in accordance with clause (b)(ii) above with respect regulations and will not be deemed to such Asset Salehave breached its obligations under this Indenture by virtue of this compliance.
Appears in 1 contract
Asset Sales. (a) Bidco shall The Issuer will not, and shall will not permit any of its Restricted Subsidiaries to, consummate cause or make an Asset Sale, unless:
unless (i1) Bidco the Issuer or such any of its Restricted SubsidiarySubsidiaries, as the case may be, receives consideration at the time of such Asset Sale at least equal to the Fair Market Value (as determined at in good faith by the time of contractually agreeing to such Asset SaleIssuer) of the assets or Equity Interests issued or sold or otherwise disposed of; and
of and (ii2) except in the case of a Permitted Asset Swap, if the property or assets sold or otherwise disposed of have a Fair Market Value in excess of the greater of $375,000,000 and 50% of Consolidated EBITDA for the most recently ended Test Period at the time of such disposition, calculated on a Pro Forma BasisSwaps, at least 75% of the consideration therefor received by Bidco the Issuer or such Restricted Subsidiary, as the case may be, is in the form of cash or Cash Equivalents; provided that the amount of:
(Ai) any liabilities, contingent or otherwise, of Bidco liabilities (as shown on the Issuer’s or such Restricted Subsidiary, ’s most recent balance sheet or in the notes thereto) of the Issuer or such Restricted Subsidiary (other than liabilities that are by their terms subordinated to the Secured Obligations Notes or any Note Guarantee) that are owed to Bidco or a Restricted Subsidiary that (x) are assumed by the transferee of any such assets (pursuant to a customary novation or a third party in connection with indemnity agreement that release the Issuer or such transfer) Restricted Subsidiary from or (y) are otherwise cancelled or terminated in connection with the transaction with such transferee (other than intercompany debt owed to Bidco or its Restricted Subsidiaries) and, in each case, for which Bidco and all of its Restricted Subsidiaries have been validly released;indemnifies against further liability,
(Bii) any securities, notes or other obligations or other securities or assets received by Bidco the Issuer or such Restricted Subsidiary of the Issuer from such transferee that are converted by Bidco the Issuer or such Restricted Subsidiary into cash or Cash Equivalents within 180 days of the receipt thereof (to the extent of the cash or Cash Equivalents received) within 180 days following the closing of such Asset Sale;), and
(C) Indebtedness of any Restricted Subsidiary that ceases to be a Restricted Subsidiary as a result of such Asset Sale (other than intercompany debt owed to Bidco or any Restricted Subsidiary), to the extent that Bidco and each other Restricted Subsidiary are released from any guarantee of payment of the principal amount of such Indebtedness in connection with such Asset Sale in accordance with the terms of this Agreement,
(D) consideration consisting of Indebtedness of a Borrower or a Guarantor (other than intercompany debt owed to Bidco or any Restricted Subsidiary and other than Subordinated Indebtedness) received after the Effective Date from Persons who are not Bidco, Holdings or any Restricted Subsidiary;
(Eiii) any Designated Non-cash Consideration received by Bidco the Issuer or such Restricted Subsidiary in such Asset Sale having an aggregate Fair Market Value Value, taken together with all other Designated Non-cash Consideration received pursuant to this clause (Ec) that is at that the time outstanding, not to exceed the greater of (i) $225,000,000 and 30100.0 million or (ii) 4.00% of Consolidated EBITDA for the most recently ended Test Period Total Assets at the time of the receipt of such Designated Non-cash Consideration, calculated on a Pro Forma Basis Consideration (with the Fair Market Value of each such item of Designated Non-cash Consideration being measured pursuant to this clause (E) at Bidco’s option, either at the time of contractually agreeing to such Asset Sale or at the time received and, in either case, and without giving effect to subsequent changes in value); and
(F) any Investment, Capital Stock, assets, property or capital or other expenditure of the kind referred to in Section 6.04(b)(ii) shall be deemed to be Cash Equivalents for the purposes of this provision and for no other purposeSection 4.06(a).
(b) Within 365 days after the Reinvestment Period after Bidco’s or any Restricted Subsidiary’s receipt of the Net Proceeds of any an Asset Sale, Bidco the Issuer or such a Restricted Subsidiary shall of the Issuer may apply an amount equal to the Net Proceeds from such Asset Sale,:
(i) (A) to prepay Loans repay, repurchase or redeem Indebtedness in accordance with Section 2.10(c) or (B) to and other Obligations under a Credit Facility that are secured by a Lien and, if the extent not required to prepay Loans pursuant to Section 2.10(c)Indebtedness repaid is revolving credit Indebtedness, to be retained by Bidco and/or Restricted Subsidiaries; orcorrespondingly reduce commitments with respect thereto;
(ii) to make investments 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 Bidco and its Subsidiariesright of payment to the Notes), other than Indebtedness owed to the Issuer or a Restricted Subsidiary; provided that Bidco 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 Subsidiaries 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 clause (ii) if and to the extent thatSection 4.06(b), as applicable, if, within 365 days of such Asset Sale, the Reinvestment Period after the Asset Sale that generated the Net ProceedsIssuer or a Restricted Subsidiary, Bidco or such Restricted Subsidiary has as applicable, shall have entered into and not abandoned or rejected a binding definitive agreement or letter of intent to consummate any covering such investment described in this clause (ii) with the good faith expectation that such Net Proceeds will be applied to satisfy such commitment Investment which is thereafter completed within 180 days after the first anniversary of such commitment (an “Acceptable Commitment”) and, in the event any such commitment is later cancelled or terminated for any reason before the Net Proceeds are applied in connection therewith, Bidco or such Restricted Subsidiary enters into another Acceptable Commitment (a “Second Commitment”) within 180 days of such cancellation or termination; provided that if any Second Commitment is later cancelled or terminated for any reason before such Net Proceeds are applied, then Bidco or such Restricted Subsidiary shall prepay the Loans in accordance with Section 2.10(c)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 the final application of any such Net Proceeds pursuant to this covenantProceeds, the holder of such Net Proceeds Issuer or any Restricted Subsidiary may apply such Net Proceeds temporarily to reduce Indebtedness outstanding borrowings under the Revolving Facility Credit Facilities or any other revolving credit facility facility, if any, or otherwise use invest such Net Proceeds in any manner not prohibited by this Agreement. Bidco or any Restricted SubsidiaryIndenture.
(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 case may beamount of the Excess Proceeds, may elect to invest in Bidco and its Subsidiaries prior to receiving (ii) the allocation of the Net Proceeds attributable from the Asset Sales pursuant to any given which such Asset Sale Offer is being made and (provided 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 investment 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); provided that no earlier than execution Notes of a definitive agreement for the relevant Asset Sale) and deem the amount so invested to $2,000 or less shall be applied purchased in part. Selection of such other pari passu Indebtedness shall be made pursuant to and the terms of such other pari passu Indebtedness.
(f) Notices of an Asset Sale Offer shall be sent to the Depositary in accordance with clause (b)(ii) above 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 Asset SaleHolder’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. (a) Bidco shall The Borrower will not, and shall will not permit any of its Restricted Subsidiaries to, consummate directly or indirectly an Asset Sale, unless:
(i) Bidco the Borrower or such Restricted Subsidiary, as the case may be, receives consideration at the time of such Asset Sale at least equal to the Fair Market Value (as determined at the time of contractually agreeing to such Asset Sale) fair market value of the assets sold or otherwise disposed of; and
(ii) except in the case of a Permitted Asset Swap, if the property or assets sold or otherwise disposed of have a Fair Market Value in excess of the greater of $375,000,000 and 50% of Consolidated EBITDA for the most recently ended Test Period at the time of such disposition, calculated on a Pro Forma Basis, at least 7575.0% of the consideration therefor received by Bidco the Borrower or such Restricted Subsidiary, as the case may be, is in the form of cash or Cash Equivalents; provided that the amount of:
(A) any liabilities, contingent or otherwise, of Bidco or such Restricted Subsidiary, other than liabilities that are by their terms subordinated to the Secured Obligations or that are owed to Bidco or a Restricted Subsidiary that (x) are assumed by the transferee of any such assets (or a third party in connection with such transfer) or (y) are otherwise cancelled or terminated in connection with the transaction with such transferee (other than intercompany debt owed to Bidco or its Restricted Subsidiaries) and, in each case, for which Bidco and all of its Restricted Subsidiaries have been validly released;
(B) any securities, notes or other obligations or assets received by Bidco or such Restricted Subsidiary from such transferee that are converted by Bidco or such Restricted Subsidiary into cash or Cash Equivalents (to the extent of the cash or Cash Equivalents received) within 180 days following the closing of such Asset Sale;
(C) Indebtedness of any Restricted Subsidiary that ceases to be a Restricted Subsidiary as a result of such Asset Sale (other than intercompany debt owed to Bidco or any Restricted Subsidiary), to the extent that Bidco and each other Restricted Subsidiary are released from any guarantee of payment of the principal amount of such Indebtedness in connection with such Asset Sale in accordance with the terms of this Agreement,
(D) consideration consisting of Indebtedness of a Borrower or a Guarantor (other than intercompany debt owed to Bidco or any Restricted Subsidiary and other than Subordinated Indebtedness) received after the Effective Date from Persons who are not Bidco, Holdings or any Restricted Subsidiary;
(E) any Designated Non-cash Consideration received by Bidco or such Restricted Subsidiary in such Asset Sale having an aggregate Fair Market Value taken together with all other Designated Non-cash Consideration received pursuant to this clause (E) that is at that time outstanding, not to exceed the greater of $225,000,000 and 30% of Consolidated EBITDA for the most recently ended Test Period at the time of the receipt of such Designated Non-cash Consideration, calculated on a Pro Forma Basis (with the Fair Market Value of each such item of Designated Non-cash Consideration being measured pursuant to this clause (E) at Bidco’s option, either at the time of contractually agreeing to such Asset Sale or at the time received and, in either case, without giving effect to subsequent changes in value); and
(F) any Investment, Capital Stock, assets, property or capital or other expenditure of the kind referred to in Section 6.04(b)(ii) items shall be deemed to be Cash Equivalents for purposes of this provision and for no other purpose:
(A) any liabilities (as shown on the Borrower’s or such Restricted Subsidiary’s most recent balance sheet or in the footnotes thereto) of the Borrower or such Restricted Subsidiary, other than liabilities that are by their terms subordinated to the Loans, that are assumed by the transferee of any such assets (or a third party on behalf of such transferee) or for which the Borrower 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 Borrower or such Restricted Subsidiary from such transferee that are converted by the Borrower or such Restricted Subsidiary into cash (to the extent of the cash received) within 180 days following the closing of such Asset Sale; and
(C) any Designated Non-cash Consideration received by the Borrower or such Restricted Subsidiary in such Asset Sale having an aggregate fair market value, taken together with all other Designated Non-cash Consideration received pursuant to this clause (C) that is at that time outstanding, not to exceed the greater of (x) $100.0 million and (y) 2.0% of Total Assets at the time of the receipt of such Designated Non-cash Consideration, with the fair market value of each item of Designated Non-cash Consideration being measured at the time received and without giving effect to subsequent changes in value.
(b) Within 450 days after the Reinvestment Period after Bidco’s or any Restricted Subsidiary’s receipt of the any Net Proceeds of any Asset Sale, Bidco the Borrower or such Restricted Subsidiary shall Subsidiary, at its option, may apply an amount equal or cause to be applied the Net Proceeds from such Asset Sale,
(i) to permanently reduce:
(A) Obligations under the Senior Credit Facilities, and, in the case of Obligations under revolving credit facilities or other similar Indebtedness, to correspondingly reduce commitments with respect thereto;
(B) Obligations under Senior Indebtedness that is secured by a Lien, which Lien is permitted by this Agreement, and, in the case of Obligations under revolving credit facilities or other similar Indebtedness, to correspondingly reduce commitments with respect thereto;
(C) Obligations under other Senior Indebtedness (and, in the case of Obligations under revolving credit facilities or other similar Indebtedness, to correspondingly reduce commitments with respect thereto); provided that the Borrower shall equally and ratably offer to prepay the Loans by, at its option, (1) prepaying Loans as provided under Section 2.05(a) hereof or Indebtedness (2) making an offer as provided in Section 6.08(f) (in accordance with the procedures set forth in Section 2.10(c) or (B6.08 hereof) to the extent not required all Lenders to prepay their Loans pursuant at 100.0% of the principal amount thereof, plus the amount of accrued but unpaid interest, if any, on the principal amount of Loans to Section 2.10(c)be prepaid; or
(D) Obligations under Indebtedness of any Restricted Subsidiary, and, in the case of Obligations under revolving credit facilities or other similar Indebtedness, to be retained by Bidco and/or Restricted Subsidiariescorrespondingly reduce commitments with respect thereto; or
(ii) to make investments (A) an Investment in Bidco and its Subsidiaries; any one or more businesses, provided that Bidco such Investment in any business is in the form of the acquisition of Capital Stock and results in the Borrower or any of its Restricted Subsidiaries Subsidiaries, as the case may be, owning an amount of the Capital Stock of such business such that it constitutes a Restricted Subsidiary, (B) an acquisition of properties, (C) capital expenditures or (D) acquisitions of other assets, that, in each of (A), (B), (C) and (D), are used or useful in a Similar Business or replace the businesses, properties and/or assets that are the subject of such Asset Sale.
(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 6.08(b) hereof will be deemed to have complied constitute “Excess Proceeds”; provided that if during such 450-day period the Borrower or a Restricted Subsidiary enters into a definitive binding agreement committing it to apply such Net Proceeds in accordance with this the requirements of clause (ii) if and of Section 6.08(b) hereof after such 450th day, such 450-day period will be extended with respect to the extent that, within the Reinvestment Period after the Asset Sale that generated the Net Proceeds, Bidco or such Restricted Subsidiary has entered into and not abandoned or rejected a binding agreement or letter amount of intent to consummate any such investment described in this clause (ii) 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 such commitment is later cancelled or terminated for any reason before the Net Proceeds are applied in connection therewith, Bidco or such Restricted Subsidiary enters into another Acceptable Commitment (a “Second Commitment”) within 180 days of such cancellation or termination; provided that if any Second Commitment is later cancelled or terminated for any reason before so committed until such Net Proceeds are applied, then Bidco or such Restricted Subsidiary shall prepay the Loans required to be applied in accordance with Section 2.10(csuch agreement (but such extension will in no event be for a period longer than 180 days) (or, if earlier, the date of termination of such agreement). When the aggregate amount of Excess Proceeds exceeds $50.0 million, the Borrower shall make an offer to all Lenders and, if required by the terms of any Indebtedness that is pari passu with the Loans (“Pari Passu Indebtedness”), to the holders of such Pari Passu Indebtedness (an “Asset Sale Offer”), to prepay or purchase the maximum aggregate principal amount of the Loans and such Pari Passu Indebtedness that is in an amount equal to $2,000 or an integral multiple of $1,000 in excess of $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 Agreement. The Borrower will commence an Asset Sale Offer within ten Business Days after the date on which the aggregate amount of Excess Proceeds exceeds $50.0 million by delivering the notice required pursuant to the terms of this Agreement, with a copy to the Administrative Agent. The Borrower 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-day period (or such longer period as provided above) or with respect to Excess Proceeds of $50.0 million or less.
(cd) To the extent that the aggregate amount of Loans and such Pari Passu Indebtedness accepted for prepayment or 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 Pari Passu Indebtedness accepted for prepayment or surrendered by such holders thereof exceeds the amount of the Excess Proceeds, the Administrative Agent shall select the Loans and the Borrower shall select such Pari Passu Indebtedness to be prepaid or 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 Loans or such Pari Passu Indebtedness accepted for prepayment or tendered. Upon completion of any such Asset Sale Offer, the amount of Excess Proceeds that resulted in the Asset Sale Offer shall be reset to zero.
(e) Pending the final application of any Net Proceeds pursuant to this covenantSection 6.08, the holder of such Net Proceeds may apply such Net Proceeds temporarily to reduce Indebtedness outstanding under the Revolving Facility or any other a revolving credit facility or otherwise use invest such Net Proceeds in any manner not prohibited by this Agreement. Bidco or any Restricted Subsidiary, as the case may be, may elect to invest in Bidco and its Subsidiaries prior to receiving the Net Proceeds attributable to any given Asset Sale (provided that such investment shall be made no earlier than execution of a definitive agreement for the relevant Asset Sale) and deem the amount so invested to be applied pursuant to and in accordance with clause (b)(ii) above with respect to such Asset Sale.
Appears in 1 contract
Samples: Credit Agreement (WP Prism Inc.)
Asset Sales. (a) Bidco The Company shall not, and shall not permit any of its Restricted Subsidiaries to, consummate an Asset SaleSale unless either (i) such Asset Sale was made in the ordinary course of business, unless(ii) the assets disposed of constituted Trading Assets, or (iii) clauses (A) through (D) below are satisfied:
(iA) Bidco the Company (or such the Restricted Subsidiary, as the case may be, ) receives consideration at the time of such Asset Sale at least equal to the Fair Market Value (as determined at the time of contractually agreeing to such Asset Sale) fair market value of the assets sold or otherwise disposed of;
(B) if the fair market value of such assets is in excess of $3.0 million, such value shall be determined by the Company's Board of Directors, and if such fair market value is in excess of $12.5 million, such fair market value shall be evidenced by an opinion, appraisal or quotation issued by a Valuation Expert;
(C) the Company gives notice of such Asset Sale to the Trustee not less than 10 days prior to the closing thereof; and
(iiD) except in the case of a Permitted Asset Swap, if the property or assets sold or otherwise disposed of have a Fair Market Value in excess of the greater of $375,000,000 and 50% of Consolidated EBITDA for the most recently ended Test Period at the time of such disposition, calculated on a Pro Forma Basis, at least 75% of the consideration therefor received by Bidco the Company or such Restricted Subsidiary, as the case may be, Subsidiary is in the form of cash or Cash Equivalents; provided that . For purposes of this clause (D), any liabilities of the amount of:
(A) Company or any liabilities, contingent or otherwise, of Bidco or such Restricted Subsidiary, other than liabilities that are by their terms subordinated to the Secured Obligations or that are owed to Bidco or a Restricted Subsidiary that (x) are assumed by the transferee of any such assets (or a third party in connection with such transfer) an Affiliate thereof or (y) are that otherwise cancelled or terminated in connection with the transaction with such transferee (other than intercompany debt owed cease to Bidco or its Restricted Subsidiaries) and, in each case, for which Bidco and all of its Restricted Subsidiaries have been validly released;
(B) any securities, notes or other obligations or assets received by Bidco or such Restricted Subsidiary from such transferee that are converted by Bidco or such Restricted Subsidiary into cash or Cash Equivalents (to the extent be liabilities of the cash Company or Cash Equivalents received) within 180 days following the closing of such Asset Sale;
(C) Indebtedness of any Restricted Subsidiary that ceases to be a Restricted Subsidiary as a result of such Asset Sale (other than intercompany debt owed to Bidco or any Restricted Subsidiary), to the extent that Bidco and each other Restricted Subsidiary are released from any guarantee of payment of the principal amount of such Indebtedness in connection with such Asset Sale in accordance with the terms of this Agreement,
(D) consideration consisting of Indebtedness of a Borrower or a Guarantor (other than intercompany debt owed to Bidco or any Restricted Subsidiary and other than Subordinated Indebtedness) received after the Effective Date from Persons who are not Bidco, Holdings or any Restricted Subsidiary;
(E) any Designated Non-cash Consideration received by Bidco or such Restricted Subsidiary in such Asset Sale having an aggregate Fair Market Value taken together with all other Designated Non-cash Consideration received pursuant to this clause (E) that is at that time outstanding, not to exceed the greater of $225,000,000 and 30% of Consolidated EBITDA for the most recently ended Test Period at the time of the receipt of such Designated Non-cash Consideration, calculated on a Pro Forma Basis (with the Fair Market Value of each such item of Designated Non-cash Consideration being measured pursuant to this clause (E) at Bidco’s option, either at the time of contractually agreeing to such Asset Sale or at the time received and, in either case, without giving effect to subsequent changes in value); and
(F) any Investment, Capital Stock, assets, property or capital or other expenditure of the kind referred to in Section 6.04(b)(ii) 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 for purposes of this provision and for no other purpose.
(b) Within the Reinvestment Period after Bidco’s or any Restricted Subsidiary’s receipt portion of the Net Proceeds of any Asset Saleconsideration received therefrom, Bidco or such Restricted Subsidiary shall apply an amount determined in accordance with the foregoing provision, is equal to or greater than what the Net Proceeds from after-tax proceeds would have been had such Asset Sale,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 prepay Loans or the permanent repayment, pro rata, of Indebtedness in accordance with Section 2.10(c) under the Senior Credit Facility, the Repo Agreement, this Indenture and the Series B Indenture or (B) to the extent not required to prepay Loans pursuant to Section 2.10(c)acquisition of income-producing assets (including, to be retained by Bidco and/or Restricted without limitation, Trading Assets) or Equity Interests in Persons that own income-producing assets if such Persons become Subsidiaries; or.
(ii) Notwithstanding the foregoing, in the event that a Restricted Subsidiary that is not a wholly-owned Subsidiary consummates an Asset Sale, whether or not such Restricted Subsidiary dividends or distributes to make investments in Bidco and all of its Subsidiaries; provided that Bidco and stockholders (including the Company or another Restricted Subsidiaries will be deemed to have complied with this clause (iiSubsidiary) if and to on a PRO RATA basis any proceeds of such Asset Sale, the extent that, within the Reinvestment Period after the Asset Sale that generated the Net Proceeds, Bidco Company or such Restricted Subsidiary has entered into and not abandoned or rejected a binding agreement or letter of intent to consummate any such investment described in this clause (ii) with the good faith expectation that such Net Proceeds will be applied to satisfy such commitment within 180 days need only apply its PRO RATA share of such commitment (an “Acceptable Commitment”) and, in the event any such commitment is later cancelled or terminated for any reason before the Net Proceeds are applied in connection therewith, Bidco or such Restricted Subsidiary enters into another Acceptable Commitment (a “Second Commitment”) within 180 days of such cancellation or termination; provided that if any Second Commitment is later cancelled or terminated for any reason before such Net Proceeds are applied, then Bidco or such Restricted Subsidiary shall prepay the Loans proceeds in accordance with Section 2.10(cthe preceding clauses (b)(i)(A) or (b)(i)(B).
(ciii) Pending the final application of any such Net Proceeds pursuant to this covenantProceeds, the holder of such Net Proceeds Company may apply such Net Proceeds temporarily to reduce Indebtedness outstanding under the Revolving Facility or any other revolving credit facility borrowings or otherwise use invest such Net Proceeds in any manner that is not prohibited by this AgreementIndenture. Bidco Any Net Proceeds from Asset Sales that are not applied or any Restricted Subsidiaryinvested 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, as the case 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 bebe purchased out of the Excess Proceeds, may 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 invest in Bidco and its Subsidiaries make an Asset Sale Offer prior to receiving the Net expiration of the 180-day period, or with less than $5.0 million of Excess Proceeds. To the extent that any Excess Proceeds attributable that were subject to any given 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.
(provided 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 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 investment conflict.
(c) 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 no earlier than execution only to Holders of a definitive agreement for the relevant Notes.
(d) The Company will not, and will not permit any of its Restricted Subsidiaries to, consummate any Asset Sale) and deem Sale of the amount so invested to be applied pursuant to and in accordance with clause (b)(ii) above with respect to CBO-REIT Pledged Stock, the QRS 1 Inc. Pledged Stock, the Nomura Bond or the Xxxxxxx/GACC Assets unless such Asset SaleSale is on commercially reasonable terms.
Appears in 1 contract
Samples: Indenture (Criimi Mae Inc)
Asset Sales. (a) Bidco The Company shall not, and shall not permit any of its Restricted Subsidiaries to, to consummate an Asset Sale, Sale unless:
(i) Bidco the Company (or such Restricted Subsidiary, as the case may be, ) receives consideration at the time of such the Asset Sale at least equal to the Fair Market Value (as determined at the time of contractually agreeing to such Asset Sale) of the assets or Equity Interests issued or sold or otherwise disposed of; and
(ii) except in the case of a Permitted Asset Swap, if the property or assets sold or otherwise disposed of have a Fair Market Value in excess of the greater of $375,000,000 and 50% of Consolidated EBITDA for the most recently ended Test Period at the time of such disposition, calculated on a Pro Forma Basis, at least 75% of the consideration therefor received in the Asset Sale by Bidco the Company or such Restricted Subsidiary, as the case may be, Subsidiary is in the form of cash or Cash Equivalents; provided that . For purposes of this provision, each of the amount offollowing will be deemed to be cash:
(A) any liabilities, contingent as recorded on the most recent consolidated balance sheet of the Company or otherwise, any of Bidco or such its Restricted Subsidiary, Subsidiaries (other than contingent liabilities and Subordinated Obligations) that are by their terms subordinated to the Secured Obligations or that are owed to Bidco or a Restricted Subsidiary that (x) are assumed by the transferee of any such assets (or a third party in connection with such transfer) otherwise cease to be liabilities of the Company or (y) are otherwise cancelled or terminated its Restricted Subsidiaries in connection with the transaction with transactions relating to such transferee (other than intercompany debt owed Asset Sale) pursuant to Bidco a written agreement which releases the Company or its such Restricted Subsidiaries) and, in each case, for which Bidco and all of its Restricted Subsidiaries have been validly releasedSubsidiary from such liabilities;
(B) any securities, notes or other obligations or assets received by Bidco the Company or any such Restricted Subsidiary from such transferee that are converted by Bidco the Company or such Restricted Subsidiary into cash or Cash Equivalents (within 180 days following the closing of the Asset Sale, to the extent of the cash or Cash Equivalents received) within 180 days following the closing of such Asset Salereceived in that conversion;
(C) Indebtedness of any Restricted Subsidiary that ceases to be a Restricted Subsidiary as a result of such Asset Sale (other than intercompany debt owed to Bidco Capital Stock or any Restricted Subsidiary), to the extent that Bidco and each other Restricted Subsidiary are released from any guarantee of payment assets of the principal amount of such Indebtedness kind referred to in connection with such Asset Sale in accordance with the terms of this Agreement,Section 4.9(b)(iv);
(D) consideration consisting of Indebtedness of a Borrower or a Guarantor (other than intercompany debt owed to Bidco or any Restricted Subsidiary and other than Subordinated Indebtedness) received after the Effective Date from Persons who are not Bidco, Holdings or any Restricted Subsidiary;
(E) any Designated Non-cash Cash Consideration received by Bidco the Company or such any of its Restricted Subsidiary Subsidiaries in such Asset Sale having an aggregate Fair Market Value Value, taken together with all other Designated Non-cash Cash Consideration received pursuant to this clause (E) Section 4.9 that is at that any one time outstanding, not to exceed the greater of $225,000,000 and 30% of Consolidated EBITDA for the most recently ended Test Period US$15.0 million at the time of the receipt of such Designated Non-cash Consideration, calculated on a Pro Forma Basis Cash Consideration (with the Fair Market Value of each such item of Designated Non-cash Cash Consideration being measured pursuant to this clause (E) at Bidco’s option, either at the time of contractually agreeing to such Asset Sale or at the time received and, in either case, and without giving effect to subsequent changes in value); and;
(E) Indebtedness (other than Subordinated Obligations) of any Restricted Subsidiary of the Company that is no longer a Restricted Subsidiary as a result of such 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) any Investment, Capital Stock, assets, property or capital or consideration consisting of Indebtedness (other expenditure than Subordinated Obligations) of the kind referred to in Section 6.04(b)(ii) shall be deemed to be Cash Equivalents for purposes of this provision and for no other purpose.
(b) Within Company or any Restricted Subsidiary received from Persons who are not the Reinvestment Period after Bidco’s Company or any Restricted Subsidiary’s receipt of the Net Proceeds of any Asset Sale, Bidco or such Restricted Subsidiary shall apply an amount equal to the Net Proceeds from such Asset Sale,;
(iG) (A) to prepay Loans or Indebtedness in accordance with Section 2.10(c) or (B) to the extent not required to prepay Loans pursuant to Section 2.10(c), to be accounts receivable of a business retained by Bidco and/or Restricted Subsidiaries; or
(ii) to make investments in Bidco and its Subsidiaries; provided that Bidco and the Restricted Subsidiaries will be deemed to have complied with this clause (ii) if and to the extent that, within the Reinvestment Period after the Asset Sale that generated the Net Proceeds, Bidco or such Restricted Subsidiary has entered into and not abandoned or rejected a binding agreement or letter of intent to consummate any such investment described in this clause (ii) 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 such commitment is later cancelled or terminated for any reason before the Net Proceeds are applied in connection therewith, Bidco or such Restricted Subsidiary enters into another Acceptable Commitment (a “Second Commitment”) within 180 days of such cancellation or termination; provided that if any Second Commitment is later cancelled or terminated for any reason before such Net Proceeds are applied, then Bidco or such Restricted Subsidiary shall prepay the Loans in accordance with Section 2.10(c).
(c) 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 the Revolving Facility or any other revolving credit facility or otherwise use such Net Proceeds in any manner not prohibited by this Agreement. Bidco Company or any Restricted SubsidiarySubsidiary of the Company, as the case may be, may elect to invest in Bidco and its Subsidiaries prior to receiving following the Net Proceeds attributable to any given Asset Sale (provided that sale of such investment shall be made no earlier than execution of a definitive agreement for the relevant Asset Sale) and deem the amount so invested to be applied pursuant to and in accordance with clause (b)(ii) above with respect to such Asset Sale.business; and
Appears in 1 contract
Asset Sales. Effect any Asset Sale except that the following shall be permitted:
(a) Bidco shall notdisposition of used, worn out, obsolete or surplus property by any Company in the ordinary course of business and shall not permit the abandonment or other disposition of Intellectual Property that is, in the 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 its any Wholly Owned Subsidiary that is a Restricted Subsidiaries toSubsidiary unless, consummate an after giving effect to any such Asset Sale, unless:
(i) Bidco or such person either ceases to be a Restricted SubsidiarySubsidiary or, as the case may be, receives consideration at the time of such Asset Sale at least equal to the Fair Market Value (as determined at the time of contractually agreeing to such Asset Sale) of the assets sold or otherwise disposed of; and
(ii) except in the case of an Excluded Collateral Subsidiary, becomes a Permitted Asset SwapJoint Venture Subsidiary) for fair market value, if the property or assets sold or otherwise disposed of have a Fair Market Value in excess of the greater of $375,000,000 and 50% of Consolidated EBITDA for the most recently ended Test Period at the time of such disposition, calculated on a Pro Forma Basis, with at least 75% of the consideration therefor received by Bidco for all such Asset Sales or related Asset Sales in which the consideration received exceeds $50,000,000 payable in cash upon such Restricted Subsidiarysale (provided, however, that for the purposes of this clause (b), the following shall be deemed to be cash: (i) any liabilities (as shown on the case may be, is Borrower’s most recent balance sheet provided hereunder or in the form footnotes thereto) of cash or Cash Equivalents; provided that the amount of:
(A) any liabilities, contingent or otherwise, of Bidco Borrower or such Restricted Subsidiary, other than liabilities that are by their terms subordinated to the Secured Obligations or payment in cash of the Obligations, that are owed to Bidco or a Restricted Subsidiary that (x) are assumed by the transferee of any such assets (or a third party in connection with such transfer) or (y) are otherwise cancelled or terminated in connection with respect to the transaction with such transferee (other than intercompany debt owed to Bidco or its Restricted Subsidiaries) and, in each case, applicable Asset Sale and for which Bidco Holdings, the Borrower and all of its Restricted Subsidiaries shall have been validly released;
released by all applicable creditors in writing, (Bii) any securities, notes or other obligations or assets securities received by Bidco the Borrower or such the applicable Restricted Subsidiary from such transferee that are converted by Bidco the Borrower or such Restricted Subsidiary into cash or Cash Equivalents (to the extent of the cash or Cash Equivalents received) within 180 days following the closing of such the applicable Asset Sale, and (iii) aggregate non-cash consideration received by the Borrower or the applicable Restricted Subsidiary having an aggregate fair market value (determined as of the closing of the applicable Asset Sale for which such non-cash consideration is received) not to exceed $75,000,000 at any time (net of any non-cash consideration converted into cash));
(Cc) Indebtedness leases, subleases or licenses of the properties of any Restricted Subsidiary that ceases to be a Restricted Subsidiary as a result Company in the ordinary course of such Asset Sale (other than intercompany debt owed to Bidco business and which do not, individually or in the aggregate, interfere in any Restricted Subsidiary), to material respect with the extent that Bidco and each other Restricted Subsidiary are released from any guarantee of payment ordinary conduct of the business of any Company;
(d) mergers and consolidations, and liquidations and dissolutions in compliance with Section 6.05;
(e) sales, transfers and other dispositions of Receivables for the fair market value thereof in connection with a Permitted Factoring Facility; provided that no Default shall be outstanding after giving effect thereto and (A) with respect to any such sale, transfer or disposition of Receivables incurred by a Company that is organized in a Principal Jurisdiction, such transaction is a Permitted German Alternative Financing, Permitted Customer Account Financing or Permitted Novelis Switzerland Financing, (B) with respect to any such sale, transfer of disposition of Receivables incurred by a Company that is organized in a Non-Principal Jurisdiction, the sum of (w) the aggregate outstanding principal amount of the Indebtedness of all Securitization Entities that are organized in a Non-Principal Jurisdiction under all Qualified Securitization Transactions under Section 6.01(e), plus (x) the aggregate amount of Indebtedness incurred by a Subsidiary that is organized in a Non-Principal Jurisdiction then outstanding under Section 6.01(m), plus (y) the aggregate book value at the time of determination of the then outstanding Receivables of a Company that is organized in a Non-Principal Jurisdiction subject to a Permitted Factoring Facility pursuant to this Section 6.06(e) at such time, plus (z) the aggregate consideration received by a Company that is organized in a Non-Principal Jurisdiction for Asset Sales permitted under Section 6.06(r) (net of amounts paid by such Company to repurchase the Inventory subject to such Asset Sales) (but in each case excluding any Permitted German Alternative Financing, Permitted Novelis Switzerland Financing and any Permitted Customer Account Financing), shall not exceed the greater of (x) 15% of Consolidated Net Tangible Assets and (y) $750,000,000, and (C) with respect to any such sale, transfer or disposition of Receivables incurred by a Company that is organized in a Non-Loan Party Jurisdiction, the sum of (w) the aggregate outstanding principal amount of the Indebtedness of all Securitization Entities that are organized in a Non-Loan Party Jurisdiction under all Qualified Securitization Transactions under Section 6.01(e), plus (x) the aggregate amount of Indebtedness incurred by a Subsidiary that is organized in a Non-Loan Party Jurisdiction then outstanding under Section 6.01(m), plus (y) the aggregate book value at the time of determination of the then outstanding Receivables of a Company that is organized in a Non-Loan Party Jurisdiction subject to a Permitted Factoring Facility pursuant to this Section 6.06(e) at such time, plus (z) the aggregate consideration received by a Company that is organized in a Non-Loan Party Jurisdiction for Asset Sales permitted under Section 6.06(r) (net of amounts paid by such Company to repurchase the Inventory subject to such Asset Sales) (but in each case excluding any Permitted German Alternative Financing, any Permitted Novelis Switzerland Financing and any Permitted Customer Account Financing), shall not exceed the greater of (x) 15% of Consolidated Net Tangible Assets and (y) $750,000,000;
(f) the sale or disposition of cash and Cash Equivalents in connection with such Asset Sale in accordance with a transaction otherwise permitted under the terms of this Agreement,;
(Dg) consideration consisting assignments and licenses of Indebtedness Intellectual Property of a Borrower any Loan Party and its Subsidiaries in the ordinary course of business and which do not, individually or a Guarantor 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 intercompany debt owed to Bidco or Holdings), (ii) by any Restricted Subsidiary and Grantor to any other than Subordinated IndebtednessRestricted Grantor, (iii) received after the Effective Date from Persons who are not Bidco, Holdings or by any Restricted Subsidiary;
(E) Grantor to any Designated Non-cash Consideration received Unrestricted Grantor so long as the consideration paid by Bidco or such Restricted Subsidiary the Unrestricted Grantor in such Asset Sale having 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 taken together with fair market value of all other Designated Non-cash Consideration received assets sold pursuant to this clause (Ei) that is at that time outstanding, shall not to exceed the greater of $225,000,000 and 30(1) 2% of Consolidated EBITDA 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 most recently ended Test Period 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 ConsiderationPrincipal Jurisdiction subject to a Permitted Factoring Facility pursuant to Section 6.06(e) at such time, calculated on plus (z) the aggregate consideration received by a Pro Forma Basis (with the Fair Market Value of each such item of Designated Company that is organized in a Non-cash Consideration being measured pursuant 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 clause Section 6.01(e), plus (Ex) at Bidco’s optionthe aggregate amount of Indebtedness incurred by a Subsidiary that is organized in a Non-Loan Party Jurisdiction then outstanding under Section 6.01(m), either plus (y) the aggregate book value at the time of contractually agreeing 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 Sale or at 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 time received and, in either case, without giving effect to subsequent changes in value)greater of (x) 15% of Consolidated Net Tangible Assets and (y) $750,000,000; and
(Fs) any Investment, Capital Stock, assets, property or capital or other expenditure Asset Sales of 100% of the kind referred to in Section 6.04(b)(ii) shall be deemed to be Cash Equivalents for purposes of this provision and for no other purpose.
(b) Within the Reinvestment Period after Bidco’s or any Restricted Subsidiary’s receipt of the Net Proceeds Equity Interests of any Asset Sale, Bidco or such Restricted Chinese Subsidiary shall apply an amount equal of Borrower to the Net Proceeds from such Asset Sale,
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 (A) to prepay Loans or Indebtedness at least the same extent as the security interests in accordance with Section 2.10(c) or such transferred Subsidiary in effect immediately prior to such transfer (B) it being understood that registration of such pledge may take place following such transfer to the extent not required to prepay Loans pursuant to Section 2.10(cby applicable law), to be retained by Bidco and/or Restricted Subsidiaries; or
) and (ii) to make investments in Bidco and its Subsidiaries; provided that Bidco and the Restricted Subsidiaries will be deemed to have complied with this clause (ii) if and to the extent that, within the Reinvestment Period after the Asset Sale that generated the Net Proceeds, Bidco no Default is then continuing or such Restricted Subsidiary has entered into and not abandoned or rejected a binding agreement or letter of intent to consummate any such investment described in this clause (ii) 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 such commitment is later cancelled or terminated for any reason before the Net Proceeds are applied in connection therewith, Bidco or such Restricted Subsidiary enters into another Acceptable Commitment (a “Second Commitment”) within 180 days of such cancellation or termination; provided that if any Second Commitment is later cancelled or terminated for any reason before such Net Proceeds are applied, then Bidco or such Restricted Subsidiary shall prepay the Loans in accordance with Section 2.10(c)would result therefrom.
(c) 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 the Revolving Facility or any other revolving credit facility or otherwise use such Net Proceeds in any manner not prohibited by this Agreement. Bidco or any Restricted Subsidiary, as the case may be, may elect to invest in Bidco and its Subsidiaries prior to receiving the Net Proceeds attributable to any given Asset Sale (provided that such investment shall be made no earlier than execution of a definitive agreement for the relevant Asset Sale) and deem the amount so invested to be applied pursuant to and in accordance with clause (b)(ii) above with respect to such Asset Sale.
Appears in 1 contract
Asset Sales. (a) Bidco The Company shall not, and shall not permit any of its Restricted Subsidiaries to, to consummate an Asset Sale, unless:
(i1) Bidco the Company or such Restricted Subsidiary, as the case may be, receives consideration at the time of such Asset Sale at least equal to the Fair Market Value fair market value (as determined at in good faith by the time of contractually agreeing to such Asset SaleCompany) of the assets sold or otherwise disposed of; and
(ii2) except in the case of a Permitted Asset Swap, if the property or assets sold or otherwise disposed of have a Fair Market Value in excess of the greater of $375,000,000 and 50% of Consolidated EBITDA for the most recently ended Test Period at the time of such disposition, calculated on a Pro Forma Basis, at least 75% of the consideration therefor received by Bidco the Company or such Restricted Subsidiary, as the case may be, is in the form of cash or Cash Equivalents; provided that the amount offollowing shall be deemed to be cash for purposes of this Section 4.10 and for no other purpose:
(A) any liabilities, contingent or otherwise, of Bidco liabilities (as reflected in 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 in the footnotes thereto if such incurrence or accrual had taken place on the date of such balance sheet) of the Company or such Restricted Subsidiary (other than liabilities that are by their terms subordinated to the Secured Obligations Notes or that are to liabilities to the extent owed to Bidco the Company or a Restricted Subsidiary any Affiliate of the Company) that (x) are assumed by the transferee of any such assets (or a third party in connection with such transfer) or (y) are otherwise cancelled or terminated in connection with the transaction with such transferee (other than intercompany debt owed to Bidco or its Restricted Subsidiaries) and, in each case, and for which Bidco the Company and all of its Restricted Subsidiaries have been validly released;released by all creditors in writing,
(B) any securities, notes or other similar obligations or assets received by Bidco the Company or such Restricted Subsidiary from such transferee that are converted by Bidco the Company or such Restricted Subsidiary into cash or Cash Equivalents (to the extent of the cash or Cash Equivalents received) within 180 days following the closing of such Asset Sale;, and
(C) Indebtedness of any Restricted Subsidiary that ceases to be a Restricted Subsidiary as a result of such Asset Sale (other than intercompany debt owed to Bidco or any Restricted Subsidiary), to the extent that Bidco and each other Restricted Subsidiary are released from any guarantee of payment of the principal amount of such Indebtedness in connection with such Asset Sale in accordance with the terms of this Agreement,
(D) consideration consisting of Indebtedness of a Borrower or a Guarantor (other than intercompany debt owed to Bidco or any Restricted Subsidiary and other than Subordinated Indebtedness) received after the Effective Date from Persons who are not Bidco, Holdings or any Restricted Subsidiary;
(E) any Designated Non-cash Consideration received by Bidco the Company or such Restricted Subsidiary in such Asset Sale having an aggregate Fair Market Value fair market value, taken together with all other Designated Non-cash Consideration received pursuant to this clause (EC) that is at that time outstanding, not to exceed the greater of $225,000,000 and 302.5% of Consolidated EBITDA for the most recently ended Test Period Total Assets at the time of the receipt of such Designated Non-cash Consideration, calculated on a Pro Forma Basis (with the Fair Market Value fair market value of each such item of Designated Non-cash Consideration being measured pursuant to this clause (E) at Bidco’s option, either at the time of contractually agreeing to such Asset Sale or at the time received and, in either case, and without giving effect to subsequent changes in value); and
(F) any Investment, Capital Stock, assets, property or capital or other expenditure of the kind referred to in Section 6.04(b)(ii) shall be deemed to be Cash Equivalents for purposes of this provision and for no other purpose.
(b) Within 450 days after the Reinvestment Period after Bidco’s or any Restricted Subsidiary’s receipt of the any Net Proceeds of any Asset Sale, Bidco the Company or such Restricted Subsidiary shall Subsidiary, at its option, may apply an amount equal to the Net Proceeds from such Asset Sale,
(i1) to permanently reduce:
(A) if the assets subject of such Asset Sale constitute Collateral, First Lien Obligations (and to prepay Loans correspondingly reduce commitments with respect thereto) and/or to permanently reduce (or Indebtedness offer to reduce) Obligations under the Notes and under any other Permitted Additional Pari Passu Obligations on a pro rata basis; provided that all reductions of 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) or by making an offer (in accordance with Section 2.10(cthe procedures set forth below for an Asset Sale Offer) or to all Holders to purchase their Notes at 100% of the principal amount thereof, plus the amount of accrued but unpaid interest and Additional Interest, if any, on the amount of the Notes that would otherwise be prepaid;
(B) if the assets subject of such Asset Sale do not constitute Collateral, 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) if the assets subject of such Asset Sale do not constitute Collateral, Obligations under other Senior Indebtedness (and to correspondingly reduce commitments with respect thereto), provided that the Issuers shall equally and ratably reduce (or offer to reduce, as applicable) Obligations under the Notes (and may elect to reduce Permitted Additional Pari Passu Obligations) on a pro rata basis; provided that all reductions of Obligations under the Notes shall be made as provided under Section 3.07 hereof through open-market purchases (to the extent not required such purchases are at or above 100% of the principal amount thereof plus accrued and unpaid interest) or by making an offer (in accordance with the procedures set forth under Section 4.10(c) hereof) to prepay Loans pursuant all Holders to Section 2.10(c)purchase their Notes at 100% of the principal amount thereof, to plus the amount of accrued but unpaid interest, if any, on the amount of Notes that would otherwise be retained by Bidco and/or Restricted Subsidiariesprepaid; or
(iiD) Indebtedness of a Restricted Subsidiary that is not a Guarantor, other than Indebtedness owed to the Company or any Affiliate of the Company,
(2) to make investments (A) an Investment in Bidco and its Subsidiariesany one or more businesses; provided that Bidco 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 will be deemed 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 have complied with this clause make an Investment in (iiA) if any one or more businesses; provided that such Investment in any business is in the form of the acquisition of Capital Stock and to results in the extent 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, within in each of (A), (B) and (C), replace the Reinvestment Period after businesses, properties and/or assets that are the subject of such Asset Sale that generated Sale; provided that, in the case of clauses (2) and (3) above, (A) a binding commitment shall be treated as a permitted application of the Net ProceedsProceeds from the date of such commitment so long as the Company, Bidco or such other Restricted Subsidiary has entered enters into and not abandoned or rejected a binding agreement or letter of intent to consummate any such investment described in this clause (ii) commitment with the good faith expectation that such Net Proceeds will shall be applied to satisfy such commitment within 180 days of such commitment (an “Acceptable Commitment”) and, in the event any such commitment Acceptable Commitment is later cancelled or terminated for any reason before the Net Proceeds are applied in connection therewith, Bidco 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 Bidco such Net Proceeds shall constitute Excess Proceeds; and (B) to the extent the assets or property that were the subject of such Restricted Subsidiary Asset Sale were included in the Collateral, then, consistent with the terms of the Security Documents, the Second Lien Agent shall prepay receive from the Loans in accordance with Section 2.10(c)Issuers a valid and perfected second priority lien on any business, property, assets or Capital Stock so acquired.
(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 Issuers shall make an offer to all Holders of the Notes (x) in the case of Net Proceeds from Collateral, to the holders of any other Permitted Additional Pari Passu Obligations if required by the terms of such Permitted Additional Pari Passu Obligations and (y) in the case of any other Net Proceeds, to all holders of other Indebtedness that is pari passu with the Notes or any Guarantee if required by the terms of such Indebtedness (“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 an integral multiple of $1,000 (but in minimum amounts 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, plus accrued and unpaid interest and Additional Interest, if any, to the date fixed for the closing of such offer, in accordance with the procedures set forth in this Indenture. The Issuers shall commence an Asset Sale Offer with respect to Excess Proceeds within ten Business Days after the date that Excess Proceeds exceed $20.0 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 Permitted Additional Pari Passu Obligations or such Pari Passu Indebtedness, as applicable, 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 and other Permitted Additional Pari Passu Obligations (in the case of Net Proceeds from Collateral) or other Pari Passu Indebtedness (in the case of any other Net Proceeds) surrendered by such holders thereof exceeds the amount of Excess Proceeds, the Trustee shall select the Notes and the Permitted Additional Pari Passu Obligations or the Pari Passu Indebtedness, as the case may be, to be purchased on a pro rata basis based on the accreted value or principal amount of the Notes and such Permitted Additional Pari Passu Obligations or such Pari Passu Indebtedness tendered. Additionally, the Issuers may, at their option, make an Asset Sale Offer using proceeds from any Asset Sale at any time after consummation of such Asset Sale. Upon consummation of any Asset Sale Offer, any Net Proceeds not used to purchase Notes in such Asset Sale Offer shall not be deemed Excess Proceeds and the Company may use any Net Proceeds not required to be used for general corporate purposes, subject to other covenants contained in this Indenture.
(d) Pending the final application of any Net Proceeds pursuant to this covenantSection 4.10, the holder of such Net Proceeds may apply such Net Proceeds temporarily to reduce Indebtedness outstanding under the Revolving Facility or any other a revolving credit facility or otherwise use invest such Net Proceeds in any manner not prohibited by this Agreement. Bidco Indenture.
(e) The Issuers shall comply with the requirements of Rule 14e-1 under the Exchange Act and any other securities laws and regulations thereunder to the extent such laws or any Restricted Subsidiary, as regulations are applicable in connection with the case may be, may elect repurchase of the Notes pursuant to invest in Bidco and its Subsidiaries prior to receiving the Net Proceeds attributable to any given an Asset Sale (provided Offer. To the extent that such investment 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 made no earlier than execution of a definitive agreement for the relevant Asset Sale) and deem the amount so invested deemed to be applied pursuant to and have breached their obligations described in accordance with clause (b)(ii) above with respect to such Asset Salethis Indenture by virtue thereof.
Appears in 1 contract
Samples: Indenture (DJO Finance LLC)
Asset Sales. (a) Bidco The Issuer shall not, and shall not permit any of its Restricted Subsidiaries to, consummate an Asset Sale, unless:
(i1) Bidco the Issuer or such Restricted Subsidiary, as the case may be, receives consideration at the time of such Asset Sale at least equal to the Fair Market Value fair market value (as determined at in good faith by the time of contractually agreeing to such Asset SaleIssuer) of the assets sold or otherwise disposed of; and
(ii2) except in the case of a Permitted Asset Swap, if the property or assets sold or otherwise disposed of have a Fair Market Value in excess of the greater of $375,000,000 and 50% of Consolidated EBITDA for the most recently ended Test Period at the time of such disposition, calculated on a Pro Forma Basis, at least 75% of the consideration therefor received by Bidco the Issuer or such Restricted Subsidiary, as the case may be, is in the form of cash or Cash Equivalents; provided that the amount of:
(A) any liabilities, contingent liabilities (as shown on the Issuer’s or otherwise, such Restricted Subsidiary’s most recent balance sheet or in the footnotes thereto) of Bidco the Issuer or such Restricted Subsidiary, other than liabilities that are by their terms subordinated to the Secured Obligations Notes (or Guarantees) or that are owed to Bidco the Issuer or a Restricted Subsidiary Subsidiary, that (x) are assumed by the transferee of any such assets (or a third party in connection with such transfer) or (y) are otherwise cancelled or terminated in connection with the transaction with such transferee (other than intercompany debt owed to Bidco or its Restricted Subsidiaries) and, in each case, and for which Bidco the Issuer and all of its Restricted Subsidiaries have been validly released;irrevocably released from such liabilities,
(B) any securities, notes or other obligations or assets received by Bidco the Issuer or such Restricted Subsidiary from such transferee that are converted by Bidco the Issuer or such Restricted Subsidiary into cash or Cash Equivalents (to the extent of the cash or Cash Equivalents received) within 180 days following the closing of such Asset Sale;, subject to ordinary settlement periods, and
(C) Indebtedness of any Restricted Subsidiary that ceases to be a Restricted Subsidiary as a result of such Asset Sale (other than intercompany debt owed to Bidco or any Restricted Subsidiary), to the extent that Bidco and each other Restricted Subsidiary are released from any guarantee of payment of the principal amount of such Indebtedness in connection with such Asset Sale in accordance with the terms of this Agreement,
(D) consideration consisting of Indebtedness of a Borrower or a Guarantor (other than intercompany debt owed to Bidco or any Restricted Subsidiary and other than Subordinated Indebtedness) received after the Effective Date from Persons who are not Bidco, Holdings or any Restricted Subsidiary;
(E) any Designated Non-cash Consideration received by Bidco the Issuer or such Restricted Subsidiary in such Asset Sale having an aggregate Fair Market Value fair market value, taken together with all other Designated Non-cash Consideration received pursuant to this clause (EC) that is at that time outstanding, not to exceed the greater of (x) $225,000,000 150,000,000 and 30(y) 25% of Consolidated EBITDA (for the most recently ended Test Period at four fiscal quarters ending immediately prior to the time date of the receipt of such Designated Non-cash ConsiderationConsideration for which internal financial statements are available), calculated on a Pro Forma Basis (with the Fair Market Value fair market value of each such item of Designated Non-cash Consideration being measured pursuant to this clause (E) at Bidco’s option, either at the time of contractually agreeing to such Asset Sale or at the time received and, in either case, and without giving effect to subsequent changes in value); and
(F) any Investment, Capital Stock, assets, property or capital or other expenditure of the kind referred to in Section 6.04(b)(ii) value shall be deemed to be Cash Equivalents cash for purposes of this provision and for no other purpose.
(b) Within 18 months after the Reinvestment Period after Bidco’s or any Restricted Subsidiary’s receipt of the any Net Proceeds of any Asset SaleSale by the Issuer or any Restricted Subsidiary, Bidco the Issuer or such Restricted Subsidiary shall Subsidiary, at its option, may apply an amount equal to the Net Proceeds from such Asset Sale,:
(i1) (Ax) to prepay Loans permanently reduce Obligations under any Secured Indebtedness, including Indebtedness under the Senior Secured Credit Facilities, the ABL Facility or Indebtedness the Existing Secured Notes, and to correspondingly reduce commitments with respect thereto, (y) to permanently reduce, prepay, repay or purchase Pari Passu Indebtedness; provided, that the Issuer equally and ratably reduce (or offer to reduce pursuant to an Asset Sale Offer) Obligations under the Notes, or (z) to make an offer (in accordance with the procedures set forth in Section 2.10(c3.09 and Section 4.10 hereof for an Asset Sale Offer) 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, redeem Notes as provided in Section 3.07 hereof or purchase Notes through open-market purchases (B) to the extent such purchases are at or above 100% of the principal amount thereof);
(2) solely in the case of an Asset Sale by a Restricted Subsidiary that is not required to prepay Loans pursuant to Section 2.10(c)a Guarantor, to be retained by Bidco and/or permanently reduce Obligations under Indebtedness of Restricted SubsidiariesSubsidiaries that are not Guarantors, and to correspondingly reduce commitments with respect thereto; or
(ii3) to (a) make investments an Investment in Bidco any one or more businesses, provided, however, that such Investment in any business is in the form of the acquisition of Capital Stock and its Subsidiariesresults 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 (d) 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 that Bidco and provided, however, that, in the Restricted Subsidiaries will be deemed to have complied with this case of clause (ii3) if and to the extent thatabove, within the Reinvestment Period after the Asset Sale that generated a binding commitment shall be treated as a permitted application of the Net Proceeds, Bidco Proceeds from the date of such commitment so long as the Issuer or such Restricted Subsidiary has entered enters into and not abandoned or rejected a binding agreement or letter of intent to consummate any such investment described in this clause (ii) commitment with the good faith expectation that such Net Proceeds will shall be applied to satisfy such commitment within the later of 18 months after receipt of such Net Proceeds and 180 days of following such commitment (an “Acceptable Commitment”) andcommitment; provided further, in the event any however, that if such commitment is later cancelled or terminated for any reason before after the Net Proceeds are applied in connection therewith, Bidco or such Restricted Subsidiary enters into another Acceptable Commitment (a “Second Commitment”) within 180 days later of such cancellation 18 month or termination; provided that if any Second Commitment is later cancelled or terminated 180 day period for any reason before such Net Proceeds are applied, then Bidco or such Restricted Subsidiary Net Proceeds shall prepay the Loans in accordance with Section 2.10(c)constitute Excess Proceeds.
(c) Any Net Proceeds from any Asset Sale described in the preceding paragraph that are not invested or applied as provided and within the time period set forth in the preceding paragraph will be deemed to constitute “Excess Proceeds”, except the amount of Excess Proceeds will be reduced by the sum of the amount of the Notes offered to be purchased in an offer pursuant to Section 4.10(b)(1) hereof. When the aggregate amount of Excess Proceeds with respect to the Notes exceeds $100,000,000, the Issuer shall make an offer to all Holders of the Notes and, if required by the terms of any Pari Passu Indebtedness, to all holders of such Indebtedness (an “Asset Sale Offer”), to purchase the maximum aggregate principal amount of such Notes and the maximum aggregate principal amount (or accreted value, if less) of such Indebtedness that is a minimum of $2,000 or an integral multiple of $1,000 thereof (in aggregate principal amount) that may be purchased out of such Excess Proceeds at an offer price in cash in an amount equal to 100% of the principal amount thereof plus accrued and unpaid interest (or such lesser price with respect to such other Pari Passu Indebtedness, if any, as may be provided by the terms of the agreements governing such other Indebtedness) to the date fixed for the closing of such offer, in accordance with the procedures set forth in this Indenture and the agreement governing the Pari Passu Indebtedness. The Issuer will commence an Asset Sale Offer with respect to Excess Proceeds within 20 Business Days after the date that Excess Proceeds exceed $100,000,000 by delivering the notice required pursuant to the terms of this Indenture, with a copy to the Trustee or otherwise in accordance with the procedures of DTC. The Issuer, in its sole discretion, may satisfy the foregoing obligations with respect to any Net Proceeds from an Asset Sale by making an Asset Sale Offer with respect to such Net Proceeds prior to the expiration of the relevant 18 month period (or such longer period provided above) or with respect to Excess Proceeds of $100,000,000 or less. To the extent that the aggregate principal amount of Notes and the aggregate principal amount (or accreted value, if applicable) of such Pari Passu Indebtedness validly tendered pursuant to an Asset Sale Offer is less than the Excess Proceeds with respect to the Notes, the Issuer may use any remaining Excess Proceeds for general corporate purposes, including to make Restricted Payments, subject to the other covenants contained in this Indenture or for any other purpose not otherwise prohibited by this Indenture. If the aggregate principal amount of Notes and the aggregate principal amount (or accreted value, if applicable) of the Indebtedness surrendered in an Asset Sale Offer exceeds the amount of Excess Proceeds, the Trustee or the Paying Agent shall select the Notes and the Issuer or the agent for such Indebtedness shall select such other Indebtedness to be purchased on a pro rata basis based on the principal amount of the Notes and the aggregate principal amount (or accreted value, if applicable) of such Indebtedness validly tendered. Upon completion of any such Asset Sale Offer, the amount of Excess Proceeds shall be reset at zero. Pending the final application of any Net Proceeds pursuant to this covenantSection 4.10, the holder of such Net Proceeds may (1) apply such Net Proceeds temporarily to reduce Indebtedness outstanding under the Revolving Facility or any other a revolving credit facility facility, including under any Credit Facilities, or otherwise use invest or apply such Net Proceeds in any manner not prohibited by this Agreement. Bidco or any Restricted SubsidiaryIndenture, as the case may be, may and (2) elect to invest in Bidco and its Subsidiaries additional assets prior to receiving the Net Proceeds attributable to any given Asset Sale (provided that such investment shall be made no earlier than the earliest of notice to the Trustee of the relevant Asset Sale, execution of a definitive agreement for the relevant Asset Sale, and consummation of the relevant Asset Sale) and deem the amount so invested to be applied pursuant to and in accordance with clause (b)(ii3) above of Section 4.10(b) with respect to such Asset Sale.
(d) The Issuer shall comply with the requirements of Rule 14e-1 under the Exchange Act and any other securities laws and regulations thereunder to the extent such laws or regulations are applicable in connection with the repurchase of the Notes pursuant to an Asset Sale Offer. To the extent that the provisions of any securities laws or regulations conflict with the provisions of this Indenture, the Issuer shall comply with the applicable securities laws and regulations and shall not be deemed to have breached its obligations described in this Indenture by virtue thereof.
(e) Except as described in clause (11) of Section 9.02, the provisions under this Indenture relative to the Issuer’s obligation to make an offer to repurchase the Notes as a result of an Asset Sale may be waived or modified with the written consent of the Holders of a majority in principal amount of the then outstanding Notes.
Appears in 1 contract
Asset Sales. (a) Bidco The Issuer shall not, and shall not permit any of its Restricted Subsidiaries to, consummate consummate, directly or indirectly, an Asset Sale, other than a Required Asset Sale, unless:
(i1) Bidco the Issuer or such Restricted Subsidiary, as the case may be, receives consideration at the time of such Asset Sale at least equal to the Fair Market Value fair market value (as determined measured at the time of contractually agreeing to such Asset Sale) of the assets sold or otherwise disposed of; and
(ii2) except in the case of a Permitted Asset Swap, if the property or assets sold or otherwise disposed of have a Fair Market Value with respect to any Asset Sale in excess of the greater of (x) $375,000,000 105.0 million and 50(y) 2.75% of Consolidated EBITDA for the most recently ended Test Period at the time of such dispositionTangible Net Worth, calculated on a Pro Forma Basis, either (a) at least 75% of the consideration therefor for such Asset Sale (measured at the time of contractually agreeing to such Asset Sale), together with all other Asset Sales since September 29, 2020 (on a cumulative basis) or (b) at least 50% of the consideration for such Asset Sale (measured at the time of contractually agreeing to such Asset Sale), in each case, received by Bidco the Issuer or such Restricted Subsidiary, as the case may be, is in the form of cash or Cash Equivalents; provided that the amount of:
(A) any liabilities, contingent or otherwise, of Bidco liabilities (as reflected on the Issuer’s or such Restricted Subsidiary’s, most recent consolidated balance sheet or in the footnotes thereto, or if incurred, accrued or increased subsequent to the date of such balance sheet, such liabilities that would have been reflected on the Issuer’s or such Restricted Subsidiary’s consolidated balance sheet or in the footnotes thereto if such incurrence, accrual or increase had taken place on or prior to the date of such balance sheet, as determined by the Issuer) of the Issuer or any Restricted Subsidiary, other than liabilities that are by their terms subordinated in right of payment to the Secured Obligations Notes or the Guarantees of the Notes, that are owed to Bidco or a Restricted Subsidiary that (x) are assumed by the transferee of any such assets (or a third party in connection with such transfer) or (y) are otherwise cancelled or terminated extinguished in connection with the transaction with transactions relating to such transferee (other than intercompany debt owed Asset Sale) pursuant to Bidco a written agreement which releases the Issuer or its such Restricted Subsidiaries) and, in each case, for which Bidco and all of its Restricted Subsidiaries have been validly releasedSubsidiary from such liabilities;
(B) any securities, notes or other obligations or assets received by Bidco the Issuer or such Restricted Subsidiary from such transferee that are converted by Bidco the Issuer or such Restricted Subsidiary into cash or Cash Equivalents, or by their terms are required to be satisfied for cash or Cash Equivalents (to the extent of the cash or Cash Equivalents received) ), in each case, within 180 days following the closing of such Asset Sale;
(C) any Designated Non-cash Consideration received by the Issuer or such Restricted Subsidiary in such Asset Sale having an aggregate fair market value, taken together with all other Designated Non-cash Consideration received pursuant to this clause (C) that is at that time outstanding, not to exceed the greater of (i) $400.0 million and (ii) 10.0% of Consolidated Tangible Net Worth at the time of the receipt of such Designated Non-cash Consideration, with the fair market value of each item of Designated Non-cash Consideration being measured at the time received and without giving effect to subsequent changes in value;
(D) Indebtedness of any Restricted Subsidiary that ceases to be a Restricted Subsidiary as a result of such Asset Sale (other than intercompany debt owed to Bidco the Issuer or any a Restricted Subsidiary), to the extent that Bidco the Issuer and each other Restricted Subsidiary are released from any guarantee of payment of the principal amount of such Indebtedness in connection with such Asset Sale in accordance with the terms of this Agreement,
(D) consideration consisting of Indebtedness of a Borrower or a Guarantor (other than intercompany debt owed to Bidco or any Restricted Subsidiary and other than Subordinated Indebtedness) received after the Effective Date from Persons who are not Bidco, Holdings or any Restricted Subsidiary;
(E) any Designated Non-cash Consideration received by Bidco or such Restricted Subsidiary in such Asset Sale having an aggregate Fair Market Value taken together with all other Designated Non-cash Consideration received pursuant to this clause (E) that is at that time outstanding, not to exceed the greater of $225,000,000 and 30% of Consolidated EBITDA for the most recently ended Test Period at the time of the receipt of such Designated Non-cash Consideration, calculated on a Pro Forma Basis (with the Fair Market Value of each such item of Designated Non-cash Consideration being measured pursuant to this clause (E) at Bidco’s option, either at the time of contractually agreeing to such Asset Sale or at the time received and, in either case, without giving effect to subsequent changes in value)Sale; and
(FE) any Investment, Capital Stock, assets, property or capital or other expenditure of the kind referred to in Section 6.04(b)(ii) shall 10.17(b)(2), shall, for purposes of this Section 10.17 (and no other provision of this Indenture), be deemed to be cash or Cash Equivalents for purposes of this provision and for no other purposeEquivalents.
(b) Within 540 days after the Reinvestment Period after BidcoIssuer’s or any Restricted Subsidiary’s receipt of the any Net Proceeds of from any Asset Sale (the “Asset Sale Proceeds Application Period”), including a Required Asset Sale, Bidco the Issuer or such Restricted Subsidiary shall Subsidiary, at its option, may apply an amount equal to the Net Proceeds from such Asset Sale,
(i1) to repay:
(A) Obligations under a Credit Facility to prepay Loans the extent such Obligations were incurred under clause (1) of Section 10.11(b) (and in the case of revolving obligations, to correspondingly reduce commitments with respect thereto);
(B) Obligations under Secured Indebtedness of the Issuer or a Guarantor (and in the case of revolving obligations, to correspondingly reduce commitments with respect thereto);
(C) Obligations under the Notes or any other Indebtedness (other than Subordinated Indebtedness) of the Issuer or any Restricted Subsidiary (and, in the case of other Senior Indebtedness which constitutes revolving obligations, to correspondingly reduce any outstanding commitments with respect thereto, if applicable); provided that if the Issuer or any Restricted Subsidiary shall so repay any Senior Indebtedness other than the Notes, the Issuer shall either (i) reduce Obligations under the Notes on a pro rata basis by, at its option, (x) redeeming Notes as described under Section 11.01 or (y) purchasing Notes through open market purchases or in arm’s-length privately negotiated transactions, or (ii) make an offer (in accordance with Section 2.10(c) or (Bthe procedures set forth below for an Asset Sale Offer) to all Holders to purchase their Notes on a ratable basis with such other Senior Indebtedness for no less than 100% of the extent not required to prepay Loans pursuant to Section 2.10(c)principal amount thereof, to be retained by Bidco and/or Restricted Subsidiariesplus the amount of accrued and unpaid interest, if any, thereon; or
(iiD) Indebtedness of a Restricted Subsidiary that is not a Guarantor, other than Indebtedness owed to make investments in Bidco and its Subsidiariesthe Issuer or another Restricted Subsidiary; provided that Bidco that, to the extent the Issuer or any Restricted Subsidiary makes an offer to redeem, prepay, repay or purchase any Obligations pursuant to any of the foregoing clauses (A) through (D) at a price of no less than 100% of the principal amount thereof, to the extent the relevant creditors do not accept such offer, the Issuer and the Restricted Subsidiaries will be deemed to have complied applied an amount of the Net Proceeds equal to such amount not so accepted in such offer (and such amount shall increase Declined Proceeds on a dollar-for-dollar basis); or
(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 Issuer 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 (excluding Capital Stock, but including, without limitation, Securitization Assets and assets that consist of Servicing Advances, MSRs, mortgages and other loans, mortgage-related securities and derivatives, other mortgage-related receivables, REO Assets, Residual Interests and other similar assets (or any interest in any of the foregoing) that are used to support or pledged to secure Permitted Funding Indebtedness), in the case of each of clauses (A), (B) and (C), either (i) that is used or useful in a Similar Business or (ii) that replace the businesses, properties and/or assets that are the subject of such Asset Sale; provided that the Issuer may elect to deem Investments, capital expenditures or acquisitions within the scope of the foregoing clauses (A), (B) or (C), as applicable, that occur prior to the receipt of the Net Proceeds to have been made in accordance with this clause (ii) if and so long as such deemed Investments, capital expenditures or acquisitions shall have been made no earlier than the earliest of (x) the notice of such Asset Sale to the extent Trustee, (y) the execution of a definitive agreement relating to such Asset Sale or (z) 180 days prior to the consummation of such Asset Sale; or
(3) any combination of the foregoing; provided that, within in the Reinvestment Period after the Asset Sale that generated case of clause (2), a binding commitment or letter of intent shall be treated as a permitted application of the Net Proceeds, Bidco Proceeds from the date of such commitment or letter of intent so long as the Issuer or such Restricted Subsidiary has entered enters into and not abandoned or rejected a binding agreement such commitment or letter of intent to consummate any such investment described in this clause (ii) with the good faith expectation that such Net Proceeds will be applied to satisfy such commitment or letter of intent within 180 days of such commitment after the Asset Sale Proceeds Application Period (an “Acceptable Commitment”) and such Net Proceeds are actually applied in such manner within the later of 540 days from the consummation of the Asset Sale and 180 days from the date of the Acceptable Commitment, and, in the event that any such commitment Acceptable Commitment is later cancelled or terminated for any reason before the Net Proceeds are applied in connection therewith, Bidco then such Net Proceeds shall constitute Excess Proceeds unless the Issuer or such Restricted Subsidiary enters into another Acceptable Commitment within 180 days of such cancellation or termination (a “Second Commitment”) and such Net Proceeds are actually applied in such manner within 180 days from the date of such cancellation or terminationthe Second Commitment; provided provided, further, that if any Second Commitment is later cancelled or terminated for any reason before such Net Proceeds are applied, then Bidco such Net Proceeds shall constitute Excess Proceeds to the extent the Asset Sale Proceeds Application Period has expired. Notwithstanding any other provisions of this Section 10.17, (i) to the extent that the application of any or such all of the Net Proceeds of any Asset Sale by a Restricted Subsidiary that is not a Guarantor (a “Non-Guarantor Disposition”) (A) is (x) prohibited or delayed by or would violate or conflict with applicable local law, (y) restricted by applicable organizational documents or any agreement or (z) subject to other organizational or administrative impediments from being repatriated to the United States (including for the avoidance of doubt restrictions, prohibitions or impediments relating to financial assistance, corporate benefit, thin capitalization, capital maintenance and similar legal principles, restrictions on upstreaming and/or cross-streaming of Cash Equivalents intra-group and relating to the fiduciary and/or statutory duties of the directors (or equivalent Persons) of the Issuer and/or any of its Subsidiaries) or would conflict with the fiduciary and/or statutory duties of such Subsidiary’s directors (or equivalent Persons), or (B) would result in, or could reasonably be expected to result in, a risk of personal or criminal liability for any officer, director, employee, manager, member of management or consultant of such Subsidiary, an amount equal to the portion of such Net Proceeds so affected will not be required to be applied in compliance with this Section 10.17, and such amounts may be retained by the applicable Restricted Subsidiary that is not a Guarantor; provided that if at any time within one year following the date on which the respective payment would otherwise have been required, such repatriation of any of such affected Net Proceeds is permitted under the applicable local law, the applicable organizational document or agreement or the applicable other impediment, an amount equal to such amount of Net Proceeds so permitted to be repatriated will be promptly applied (net of any taxes, costs or expenses that would be payable or reserved against if such amounts were actually repatriated whether or not they are repatriated) in compliance with this Section 10.17 or (ii) to the extent that the Issuer has reasonably determined that repatriation of any or all of the Net Proceeds of any Non-Guarantor Disposition would have a material adverse tax cost or consequence to the Issuer or its Subsidiaries with respect to such Net Proceeds (which for the avoidance of doubt, includes, but is not limited to, any prepayment whereby doing so the Issuer, any Restricted Subsidiary or any of their respective Parent Entities would incur a material incremental tax liability, including as a result of a tax dividend, a deemed dividend pursuant to Code Section 956 or a withholding tax), the Net Proceeds so affected may be retained by the applicable Restricted Subsidiary that is not a Guarantor and an amount equal to such Net Proceeds will not be required to be applied in compliance with this Section 10.17; provided, further, that if at any time within one year following the date on which the respective payment would otherwise have been required, such repatriation of any of such affected Net Proceeds would not result in such material adverse tax cost or consequence, an amount equal to such amount of Net Proceeds will be promptly applied (net of any taxes, costs or expenses that would be payable or reserved against if such amounts were actually repatriated whether or not they are repatriated) in compliance with this Section 10.17. The non-application of any prepayment amounts as a consequence of the foregoing provisions will not, for the avoidance of doubt, constitute a Default or an Event of Default. For the avoidance of doubt, nothing in this Section 10.17 shall prepay be construed to require the Loans in accordance with Section 2.10(c)Issuer or any Subsidiary to repatriate cash.
(c) Pending To the final application of any extent Net Proceeds pursuant from an Asset Sale exceed amounts that are invested or applied as provided and within the time period set forth in the second preceding paragraph, such excess amount will be deemed to this covenantconstitute “Excess Proceeds.” When the aggregate amount of Excess Proceeds exceeds the greater of (i) $105.0 million and (ii) 2.75% of Consolidated Tangible Net Worth, the holder Issuer shall make an offer to all Holders and, if required or permitted by the terms of other Indebtedness that is pari passu in right of payment with the Notes (“Pari Passu Indebtedness”), to the holders of such Net Proceeds may apply such Net Proceeds temporarily Pari Passu Indebtedness (an “Asset Sale Offer”), to reduce Indebtedness outstanding under purchase the Revolving Facility maximum aggregate principal amount (or any other revolving credit facility or otherwise use such Net Proceeds in any manner not prohibited by this Agreement. Bidco or any Restricted Subsidiaryaccreted value, as applicable) of the case Notes and such Pari Passu Indebtedness, with respect to the Notes only, that is equal to $2,000 or an integral multiple of $1,000 in excess thereof, that may bebe purchased out of the Excess Proceeds at an offer price, may elect with respect to invest the Notes only, in Bidco cash in an amount equal to 100% of the principal amount thereof (or accreted value thereof, if less), plus accrued and its Subsidiaries prior to receiving unpaid interest, if any, to, but excluding, the Net Proceeds attributable to any given Asset Sale (provided that such investment shall be made no earlier than execution of a definitive agreement date fixed for the relevant Asset Sale) and deem the amount so invested to be applied pursuant to and closing of such offer, in accordance with clause the procedures set forth in this Indenture and, if applicable, the other documents governing the applicable Pari Passu Indebtedness. The Issuer shall commence an Asset Sale Offer with respect to Excess Proceeds within twenty Business Days after the date that Excess Proceeds exceed the greater of (b)(iii) above $105.0 million and (ii) 2.75% of Consolidated Tangible Net Worth by transmitting electronically or mailing a notice to the Holders, with a copy to the Trustee, which notice shall advise the Holders of the Asset Sale Offer and shall contain all information relating to the procedures for tendering Notes in the Asset Sale Offer and withdrawing Notes therefrom, in each case consistent with this Section 10.17 and determined by the Issuer to be appropriate. The Issuer may satisfy the foregoing obligation with respect to such Net Proceeds from an Asset Sale by making an Asset Sale Offer prior to the expiration of the Asset Sale Proceeds Application Period (the “Advance Offer”) with respect to all or a part of the available Net Proceeds (the “Advance Portion”) in advance of being required to do so by this Indenture. Additionally, the Issuer may at its option, make an Asset Sale Offer using Net Proceeds at any time after the consummation of such Asset Sale.. If an Advance Offer is made, such offer may provide that the Advance Offer is conditioned on one or more conditions precedents, and, if applicable, state that, in the Issuer’s discretion, the purchase date may be delayed until such time (including more than 60 days after the offer to purchase is mailed or delivered, including by electronic transmission) as any conditions shall be satisfied, or that such purchase may not occur and such notice may be rescinded in the event that the Issuer shall determine that any such conditions shall not have been satisfied by the purchase date, or by the purchase date as so delayed. To the extent that the aggregate principal amount (or accreted val
Appears in 1 contract
Asset Sales. (a) Bidco The Issuer shall not, and shall not permit any of its Restricted Subsidiaries to, to consummate an Asset Sale, unless:
(i) Bidco the Issuer or such Restricted Subsidiary, as the case may be, receives consideration at the time of such Asset Sale at least equal to the Fair Market Value fair market value (as 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; and;
(ii) except in the case of a Permitted Asset Swap, if the property or assets sold or otherwise disposed of have a Fair Market Value in excess of the greater of $375,000,000 and 50% of Consolidated EBITDA for the most recently ended Test Period at the time of such disposition, calculated on a Pro Forma Basis, at least 75% of the consideration therefor received by Bidco the Issuer or such Restricted Subsidiary, as the case may be, is in the form of cash or Cash Equivalents; provided that the amount offollowing amounts shall be deemed to be Cash Equivalents for the purposes of this provision:
(A) any liabilities, contingent liabilities (as shown on the Issuer’s or otherwise, such Restricted Subsidiary’s most recent balance sheet or in the footnotes thereto) of Bidco the Issuer or such Restricted Subsidiary, other than liabilities that are by their terms subordinated to the Secured Obligations or Notes, that are owed to Bidco or a Restricted Subsidiary that (x) are assumed by the transferee of any such assets (or a third party in connection with such transfer) or (y) are otherwise cancelled or terminated in connection with the transaction with such transferee (other than intercompany debt owed to Bidco or its Restricted Subsidiaries) and, in each case, and for which Bidco the Issuer and all of its Restricted Subsidiaries have been validly releasedreleased by all applicable creditors in writing;
(B) any securities, notes or other obligations or assets received by Bidco the Issuer or such Restricted Subsidiary from such transferee that are converted by Bidco the Issuer or such Restricted Subsidiary into cash or Cash Equivalents (to the extent of the cash or Cash Equivalents received) within 180 days following the closing of such Asset Sale;; and
(C) Indebtedness of any Restricted Subsidiary that ceases to be a Restricted Subsidiary as a result of such Asset Sale (other than intercompany debt owed to Bidco or any Restricted Subsidiary), to the extent that Bidco and each other Restricted Subsidiary are released from any guarantee of payment of the principal amount of such Indebtedness in connection with such Asset Sale in accordance with the terms of this Agreement,
(D) consideration consisting of Indebtedness of a Borrower or a Guarantor (other than intercompany debt owed to Bidco or any Restricted Subsidiary and other than Subordinated Indebtedness) received after the Effective Date from Persons who are not Bidco, Holdings or any Restricted Subsidiary;
(E) any Designated Non-cash Consideration received by Bidco the Issuer or any of its Restricted Subsidiaries in the Asset Sale; provided that the aggregate of 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 in connection with Asset Sales (Eand still held) that is shall not exceed $5 million at that any one time outstanding, not to exceed the greater of $225,000,000 and 30% of Consolidated EBITDA for the most recently ended Test Period at the time of the receipt of such Designated Non-cash Consideration, calculated on a Pro Forma Basis (with the Fair Market Value of fair market value in each such item of Designated Non-cash Consideration case being measured pursuant to this clause (E) at Bidco’s option, either at the time of contractually agreeing to such Asset Sale or at the time received and, in either case, and without giving effect to subsequent changes in value); and
(Fiii) any Investmentif such Asset Sale involves the disposition of Collateral, Capital Stock, assets, property the Issuer or capital or other expenditure of such Guarantor has complied with the kind referred to in Section 6.04(b)(ii) shall be deemed to be Cash Equivalents for purposes provisions of this provision Indenture and for no other purposethe Collateral Documents.
(b) Within 365 days after the Reinvestment Period after Bidco’s or any Restricted Subsidiary’s receipt of the any Net Proceeds of any Asset Sale, Bidco the Issuer or such Restricted Subsidiary shall Subsidiary, at its option, may apply an amount equal to the Net Proceeds from such Asset Sale,
(i) to reduce indebtedness as follows:
(A) if the assets subject to prepay Loans such Asset Sale constitute Notes Collateral, to permanently reduce (or Indebtedness offer to reduce) 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 or by making an offer (in accordance with the procedures set forth in Section 2.10(c3.09 and Section 4.10(c) or 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
(B) if the assets subject to such Asset Sale constitutes ABL Collateral, to repay any Indebtedness under the ABL Facility secured by such ABL Collateral as required under the ABL Facility; 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), provided that the Issuer shall equally and ratably reduce 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 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 a Guarantor, to permanently reduce Indebtedness of such Restricted Subsidiary that is not a Guarantor, other than Indebtedness owed to the extent not required to prepay Loans pursuant to Section 2.10(c), to be retained by Bidco and/or Issuer or another Restricted SubsidiariesSubsidiary; or
(ii) to make investments (A) an Investment in Bidco 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 that are not classified as current assets under GAAP and that are used or useful in a Similar Business; provided that Bidco and the Restricted Subsidiaries will be deemed assets (including Capital Stock) acquired with the Net Proceeds of a disposition of Collateral are pledged as Collateral to have complied with this the extent required under the Collateral Documents (except to the extent the Lien thereon is released by the lenders under the ABL Facility); provided that, in the case of clause (ii) if and to above, a binding commitment entered into not later than such 365th day shall extend the extent that, within the Reinvestment Period period for such Investment or other payment for an additional 180 days after the Asset Sale that generated end of such 365-day period so long as the Net Proceeds, Bidco Issuer or such other Restricted Subsidiary has entered enters into and not abandoned or rejected a binding agreement or letter of intent to consummate any such investment described in this clause (ii) commitment with the good faith expectation that such Net Proceeds will shall be applied to satisfy such commitment within 180 days of such commitment (an “Acceptable Commitment”) and, in the event any such commitment Acceptable Commitment is later cancelled or terminated for any reason before the Net Proceeds are applied in connection therewith, Bidco or therewith then such Restricted Subsidiary enters into another Acceptable Commitment (a “Second Commitment”) within 180 days Net Proceeds shall constitute Excess Proceeds on the date of such cancellation or termination; provided that if any Second Commitment is later cancelled or terminated for any reason before such Net Proceeds are applied, then Bidco or such Restricted Subsidiary shall prepay the Loans in accordance with Section 2.10(c)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 $10.0 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 $10.0 million by delivering the notice required pursuant to the terms of this Indenture, with a copy to the Trustee. The Issuer may satisfy the foregoing obligations with respect to any Net Proceeds from an Asset Sale by making an Asset Sale Offer with respect to such Net Proceeds prior to the expiration of the relevant 365 days (or such longer period provided above) or with respect to Excess Proceeds of $10.0 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 covenantSection 4.10, the holder of such Net Proceeds may apply such Net Proceeds temporarily to reduce Indebtedness outstanding under the Revolving Facility or any other a revolving credit facility or otherwise use invest such Net Proceeds in any manner not prohibited by this Agreement. Bidco 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 any Restricted Subsidiary, as regulations are applicable in connection with the case may be, may elect repurchase of the Notes pursuant to invest in Bidco and its Subsidiaries prior to receiving the Net Proceeds attributable to any given an Asset Sale (provided Offer. To the extent that such investment 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 made no earlier than execution deemed to have breached its obligations described in this Indenture by virtue thereof. The provisions of this Section 4.10 may be waived or modified with the written consent of the Holders of a definitive agreement for majority in principal amount of the relevant Asset Sale) and deem the amount so invested to be applied pursuant to and in accordance with clause (b)(ii) above with respect to such Asset SaleNotes then outstanding.
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Samples: Senior Secured Notes Indenture (Cambium Learning Group, Inc.)
Asset Sales. (a) Bidco shall notThe Company will not consummate, and shall will not permit any of its Restricted Subsidiaries toto consummate, consummate an Asset Sale, Sale unless:
(i1) Bidco the Company or such any of its Restricted Subsidiary, as the case may be, Subsidiaries receives consideration at the time of such the Asset Sale at least equal to the Fair Market Value fair market value (as to be determined at on the time date of contractually agreeing contractual agreement to such Asset SaleSale by the parties thereto) of the assets or Equity Interests issued or sold or otherwise disposed of; and
(ii2) except in the case of a Permitted Asset Swap, if the property or assets sold or otherwise disposed of have a Fair Market Value in excess of the greater of $375,000,000 and 50% of Consolidated EBITDA for the most recently ended Test Period at the time of such disposition, calculated on a Pro Forma Basis, at least 75% of the aggregate consideration therefor received by Bidco or such the Company and its Restricted SubsidiarySubsidiaries in the Asset Sale and all other Asset Sales, as the case may beon 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:
(A) any liabilities, contingent or otherwiseas shown on the Company’s most recent consolidated balance sheet, of Bidco the Company or such any Restricted Subsidiary, Subsidiary (other than contingent liabilities and liabilities that are by their terms subordinated to the Secured Obligations Notes or any Subsidiary Guarantees) that are owed to Bidco or a Restricted Subsidiary that (x) are assumed by the transferee of any such assets (pursuant to a novation agreement that releases the Company or a third party in connection with such transfer) or (y) are otherwise cancelled or terminated in connection with the transaction with such transferee (other than intercompany debt owed to Bidco or its Restricted Subsidiaries) and, in each case, for which Bidco and all of its Restricted Subsidiaries have been validly releasedSubsidiary from further liability;
(B) any securities, notes or other obligations or assets received by Bidco the Company or such any Restricted Subsidiary from in such transferee transaction that are within 180 days after the Asset Sale (subject to ordinary settlement periods), converted by Bidco the Company or such Restricted Subsidiary into cash or Cash Equivalents (Equivalents, to the extent of the cash or Cash Equivalents received) within 180 days following the closing of such Asset Salereceived in that conversion;
(C) Indebtedness of any Restricted Subsidiary that ceases to be a Restricted Subsidiary as a result of such Asset Sale (other than intercompany debt owed to Bidco or any Restricted Subsidiary), to the extent that Bidco and each other Restricted Subsidiary are released from any guarantee of payment of the principal amount of such Indebtedness in connection with such Asset Sale in accordance with the terms of this Agreement,
(D) consideration consisting of Indebtedness of a Borrower or a Guarantor (other than intercompany debt owed to Bidco or any Restricted Subsidiary and other than Subordinated Indebtedness) received after the Effective Date from Persons who are not Bidco, Holdings or any Restricted Subsidiary;
(E) any Designated Non-cash Consideration received by Bidco the Company or such any of its Restricted Subsidiary Subsidiaries in such Asset Sale having an Sale; provided that the aggregate Fair Market Value fair market value of such Designated Non-cash Consideration, taken together with the fair market value at the time of receipt of all other Designated Non-cash Consideration received pursuant to this clause (EC) 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 $225,000,000 and 30(x) 5.0% of Consolidated EBITDA for the most recently ended Test Period Net Tangible Assets at the time of the receipt of such Designated Non-cash Consideration, calculated on a Pro Forma Basis Consideration (with the Fair Market Value fair market value of each such item of Designated Non-cash Consideration being measured pursuant to this clause (E) at Bidco’s option, either at the time of contractually agreeing to such Asset Sale or at the time received and, in either case, and without giving effect to subsequent changes in value)) and (y) $50.0 million; and
(FD) any Investment, Capital Stock, assets, property or capital or other expenditure of the kind referred to in Section 6.04(b)(iiclauses (2), (3) shall be deemed to be Cash Equivalents for purposes or (4) of this provision and for no other purpose.
(b) the next paragraph. Within 365 days after the Reinvestment Period after Bidco’s or any Restricted Subsidiary’s receipt of the Net Proceeds of any Asset Sale, Bidco or such Restricted Subsidiary shall apply an amount equal to the Net Proceeds from an Asset Sale the Company or any of its Restricted Subsidiaries may apply such Asset Sale,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):
(i) (A1) to prepay Loans repay, repurchase, redeem or defease any Senior Indebtedness in accordance with Section 2.10(c) of the Company or its Restricted Subsidiaries (Bor 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 extent properties or assets of, or any Capital Stock of, another Permitted Business, if, after giving effect to any such acquisition of Capital Stock, the Permitted Business is or becomes a Restricted Subsidiary of the Company;
(3) to make a capital expenditure in a Permitted Business;
(4) to acquire other assets that are not required to prepay Loans pursuant to Section 2.10(c), to be retained by Bidco and/or Restricted Subsidiariesclassified as current assets under GAAP and that are used or useful in a Permitted Business; or
(ii5) to make investments in Bidco and its Subsidiaries; provided that Bidco and any combination of the Restricted Subsidiaries will be deemed to have complied with this clause (ii) if and to the extent that, within the Reinvestment Period after the Asset Sale that generated the Net Proceeds, Bidco or such Restricted Subsidiary has entered into and not abandoned or rejected a binding agreement or letter of intent to consummate any such investment described in this clause (ii) 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 such commitment is later cancelled or terminated for any reason before the Net Proceeds are applied in connection therewith, Bidco or such Restricted Subsidiary enters into another Acceptable Commitment (a “Second Commitment”) within 180 days of such cancellation or termination; provided that if any Second Commitment is later cancelled or terminated for any reason before such Net Proceeds are applied, then Bidco or such Restricted Subsidiary shall prepay the Loans in accordance with Section 2.10(c).
(c) foregoing. Pending the final application of any Net Proceeds pursuant to this covenantProceeds, the holder of such Net Proceeds may apply such Net Proceeds temporarily to reduce Indebtedness outstanding under the Revolving Facility Company or any other revolving credit facility or otherwise use such Restricted Subsidiary may invest the Net Proceeds in any manner that is not prohibited by this AgreementIndenture. Bidco Any Net Proceeds from Asset Sales that are not applied or invested as provided in the second paragraph of this Section 4.10 will constitute “Excess Proceeds.” When the aggregate amount of Excess Proceeds exceeds $50.0 million (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 SubsidiarySubsidiary 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, as then Notes will be purchased on a pro rata basis (or, in the case may beof Global Notes, may elect to invest in Bidco and its Subsidiaries prior to receiving the Net Proceeds attributable to any given Asset Sale (provided that such investment shall Notes represented thereby will be made no earlier than execution of a definitive agreement for the relevant Asset Sale) and deem the amount so invested to be applied pursuant to and purchased in accordance with clause (b)(ii) above 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 respect 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, 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 Asset Salecompliance.
Appears in 1 contract
Asset Sales. (a) Bidco The Borrower shall not, and shall not permit any of its Restricted Subsidiaries to, consummate an Asset Sale, Sale unless:
(ia) Bidco the Borrower or such the applicable Restricted Subsidiary, as the case may be, receives consideration at the time of such Asset Sale at least equal to the Fair Market Value (as determined at the time of contractually agreeing to such Asset Sale) fair market value of the assets sold or otherwise disposed of; andof (as determined in good faith by the Borrower’s Board of Directors);
(iib) except in the case of a Permitted Asset Swap, if the property or assets sold or otherwise disposed of have a Fair Market Value in excess of the greater of $375,000,000 and 50% of Consolidated EBITDA for the most recently ended Test Period at the time of such disposition, calculated on a Pro Forma Basis, at least 75% of the consideration therefor received by Bidco the Borrower or such the Restricted Subsidiary, as the case may be, is from such Asset Sale shall be in the form of cash or Cash Equivalents; provided that the amount of:
: (Ai) any liabilities, contingent or otherwise, of Bidco liabilities (as shown on the Borrower’s or such Restricted Subsidiary, ’s most recent balance sheet) of the Borrower or any such Restricted Subsidiary (other than liabilities that are by their terms subordinated to the Secured Obligations or Loans) that are owed to Bidco or a Restricted Subsidiary that (x) are assumed by the transferee of any such assets assets; (or a third party in connection with such transfer) or (y) are otherwise cancelled or terminated in connection with the transaction with such transferee (other than intercompany debt owed to Bidco or its Restricted Subsidiaries) and, in each case, for which Bidco and all of its Restricted Subsidiaries have been validly released;
(Bii) any securities, notes or other obligations or assets received by Bidco the Borrower or any such Restricted Subsidiary from such transferee that are converted by Bidco the Borrower or such Restricted Subsidiary into cash or Cash Equivalents within 90 days of the receipt thereof (to the extent of the cash or Cash Equivalents received) within 180 days following the closing of such Asset Sale;
); and (C) Indebtedness of any Restricted Subsidiary that ceases to be a Restricted Subsidiary as a result of such Asset Sale (other than intercompany debt owed to Bidco or any Restricted Subsidiary), to the extent that Bidco and each other Restricted Subsidiary are released from any guarantee of payment of the principal amount of such Indebtedness in connection with such Asset Sale in accordance with the terms of this Agreement,
(D) consideration consisting of Indebtedness of a Borrower or a Guarantor (other than intercompany debt owed to Bidco or any Restricted Subsidiary and other than Subordinated Indebtedness) received after the Effective Date from Persons who are not Bidco, Holdings or any Restricted Subsidiary;
(Eiii) any Designated Non-cash Noncash Consideration received by Bidco the Borrower or such any of its Restricted Subsidiary Subsidiaries in such Asset Sale having an aggregate Fair Market Value fair market value, taken together with all other Designated Non-cash Noncash Consideration received pursuant to this clause (Eiii) that is at that time outstanding, not to exceed the greater of $225,000,000 and 305% of Consolidated EBITDA for the most recently ended Test Period Total Assets at the time of the receipt of such Designated Non-cash Consideration, calculated on a Pro Forma Basis Noncash Consideration (with the Fair Market Value fair market value of each such item of Designated Non-cash Noncash Consideration being measured pursuant to this clause (E) at Bidco’s option, either at the time of contractually agreeing to such Asset Sale or at the time received and, in either case, and without giving effect to subsequent changes in value), shall, in each of (i), (ii) and (iii) above, be deemed to be cash for the purposes of this provision or for purposes of this Section 5.04(b); and
(Fc) upon the consummation of an Asset Sale, the Borrower shall apply, or cause such Restricted Subsidiary to apply, the Net Cash Proceeds relating to such Asset Sale within 425 days of receipt thereof either (i) to prepay any Investment, Capital Stock, assets, property or capital or other expenditure Senior Indebtedness of the kind referred Borrower (including the Loans) or any Indebtedness of a Restricted Subsidiary of the Borrower 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 Section 6.04(b)(iiwhich case no prepayment should be required)), (ii) to reinvest in Productive Assets (provided that this requirement shall be deemed satisfied if the Borrower or such Restricted Subsidiary by the end of such 425-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 426th 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 426th day)), or (iii) a combination of prepayment and investment permitted by the foregoing clauses (c)(i) and (c)(ii). On the 426th day after an Asset Sale or such earlier date, if any, as the Board of Directors of the Borrower or of such Restricted Subsidiary determines by Board Resolution not to apply the Net Cash Equivalents for purposes Proceeds relating to such Asset Sale as set forth in clauses (c)(i), (c)(ii) and (c)(iii) of this provision the next preceding sentence (each, an “Asset Sale Offer Trigger Date”), such aggregate amount of Net Cash Proceeds which have not been applied on or before such Asset Sale Offer Trigger Date as permitted in clauses (c)(i), (c)(ii) and for no other purpose.
(bc)(iii) Within of the Reinvestment Period after Bidco’s or any Restricted Subsidiary’s receipt next preceding sentence (each an “Asset Sale Offer Amount”) shall be applied by the Borrower to make an Asset Sale Offer in accordance with Section 2.15. Notwithstanding the foregoing, if an Asset Sale Offer Amount is less than $10.0 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 any all Asset SaleSale 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 Borrower and its Restricted Subsidiaries aggregates at least $10.0 million, Bidco at which time the Borrower or such Restricted Subsidiary shall apply an amount equal all Net Cash Proceeds constituting all Asset Sale Offer Amounts that have been so deferred to the Net Proceeds from such make a Asset Sale,
(i) (A) to prepay Loans or Indebtedness Sale Offer in accordance with Section 2.10(c) 2.15 (the first date the aggregate of all such deferred Asset Sale Offer Amounts is equal to $10.0 million or (B) to the extent not required to prepay Loans pursuant to Section 2.10(c), to be retained by Bidco and/or Restricted Subsidiaries; or
(ii) to make investments in Bidco and its Subsidiaries; provided that Bidco and the Restricted Subsidiaries will more shall be deemed to have complied be a Asset Sale Offer Trigger Date). Notwithstanding the immediately preceding paragraph, the Borrower and its Restricted Subsidiaries shall be permitted to consummate an Asset Sale without complying with this clause (ii) if and such paragraph to the extent that, within : (i) at least 75% of the Reinvestment Period after the consideration for such Asset Sale that generated the Net Proceedsconstitutes Productive Assets, Bidco or such Restricted Subsidiary has entered into cash, Cash Equivalents and/or Marketable Securities; and not abandoned or rejected a binding agreement or letter of intent to consummate any such investment described in this clause (ii) 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 such commitment Asset Sale is later cancelled or terminated for any reason before the Net Proceeds are applied in connection therewith, Bidco or such Restricted Subsidiary enters into another Acceptable Commitment (a “Second Commitment”) within 180 days of such cancellation or terminationfair market value; provided that any consideration consisting of cash, Cash Equivalents and/or Marketable Securities received by the Borrower 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. Notwithstanding the foregoing provisions of this Section 5.04, if any Second Commitment is later cancelled or terminated for any reason before such at the time the Borrower would be required to make an Asset Sale Offer pursuant to Section 5.04(c) the Borrower does not have access to the applicable Net Cash Proceeds are appliedas a result of a restriction permitted by Section 5.02, then Bidco or the Borrower shall have no obligation to make such Restricted Subsidiary shall prepay the Loans in accordance with Section 2.10(c).
(c) 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 the Revolving Facility or any other revolving credit facility or otherwise use such Net Proceeds in any manner not prohibited by this Agreement. Bidco or any Restricted Subsidiary, as the case may be, may elect to invest in Bidco and its Subsidiaries prior to receiving the Net Proceeds attributable to any given Asset Sale (provided that such investment shall be made no earlier than execution of a definitive agreement for the relevant Asset Sale) and deem the amount so invested to be applied pursuant to and in accordance with clause (b)(ii) above with respect to such Asset SaleOffer.
Appears in 1 contract
Samples: Loan Agreement (TransDigm Group INC)
Asset Sales. (a) Bidco The Issuer shall not, and shall not permit any of its Restricted Subsidiaries to, consummate cause or make an Asset Sale, unless:
unless (i) Bidco the Issuer or such any of its Restricted SubsidiarySubsidiaries, as the case may be, receives consideration at the time of such Asset Sale at least equal to the Fair Market Value (as determined at in good faith by the time of contractually agreeing to such Asset SaleIssuer) of the assets sold or otherwise disposed of; and
, and (ii) except in the case of a Permitted Asset Swap, if the property or assets sold or otherwise disposed of have a Fair Market Value in excess of the greater of $375,000,000 and 50% of Consolidated EBITDA for the most recently ended Test Period at the time of such disposition, calculated on a Pro Forma Basis, at least 75% of the consideration therefor received by Bidco the Issuer or such Restricted Subsidiary, as the case may be, is in the form of cash or Cash Equivalents; provided that the amount of:
(Ai) any liabilities, contingent or otherwise, of Bidco liabilities (as shown on the Issuer’s or such Restricted Subsidiary, ’s most recent balance sheet or in the notes thereto) of the Issuer or any Restricted Subsidiary of the Issuer (other than liabilities that are by their terms subordinated to the Secured Obligations Notes or any Guarantee) that are owed to Bidco or a Restricted Subsidiary that (x) are assumed by the transferee of any such assets (or a third party in connection with such transfer) or (y) are otherwise cancelled or terminated in connection with the transaction with such transferee (other than intercompany debt owed to Bidco or its Restricted Subsidiaries) and, in each case, for which Bidco and all of its Restricted Subsidiaries have been validly releasedassets;
(Bii) any securities, notes or other obligations or other securities or assets received by Bidco the Issuer or such Restricted Subsidiary of the Issuer from such transferee that are converted by Bidco the Issuer or such Restricted Subsidiary of the Issuer into cash or Cash Equivalents within 180 days of the receipt thereof (to the extent of the cash or Cash Equivalents received) within 180 days following the closing of such Asset Sale;); and
(C) Indebtedness of any Restricted Subsidiary that ceases to be a Restricted Subsidiary as a result of such Asset Sale (other than intercompany debt owed to Bidco or any Restricted Subsidiary), to the extent that Bidco and each other Restricted Subsidiary are released from any guarantee of payment of the principal amount of such Indebtedness in connection with such Asset Sale in accordance with the terms of this Agreement,
(D) consideration consisting of Indebtedness of a Borrower or a Guarantor (other than intercompany debt owed to Bidco or any Restricted Subsidiary and other than Subordinated Indebtedness) received after the Effective Date from Persons who are not Bidco, Holdings or any Restricted Subsidiary;
(Eiii) any Designated Non-cash Consideration received by Bidco the Issuer or such any of its Restricted Subsidiary Subsidiaries in such Asset Sale having an aggregate Fair Market Value (as determined in good faith by the Issuer), taken together with all other Designated Non-cash Consideration received pursuant to this clause (Eiii) that is at that time outstanding, not to exceed the greater of $225,000,000 and 303.0% of Consolidated EBITDA for the most recently ended Test Period Total Assets and $100 million at the time of the receipt of such Designated Non-cash Consideration, calculated on a Pro Forma Basis Consideration (with the Fair Market Value of each such item of Designated Non-cash Consideration being measured pursuant to this clause (E) at Bidco’s option, either at the time of contractually agreeing to such Asset Sale or at the time received and, in either case, and without giving effect to subsequent changes in value); and
(F) any Investment, Capital Stock, assets, property or capital or other expenditure of the kind referred to in Section 6.04(b)(ii) shall be deemed to be Cash Equivalents for the purposes of this provision and for no other purposeprovision.
(b) Within 15 months after the Reinvestment Period after BidcoIssuer’s or any Restricted SubsidiarySubsidiary of the Issuer’s receipt of the Net Proceeds of any Asset Sale, Bidco the Issuer or such Restricted Subsidiary shall of the Issuer may apply an amount equal to the Net Proceeds from such Asset Sale,, at its option:
(i) to repay Indebtedness constituting Bank Indebtedness and other Pari Passu Indebtedness that is secured by a Lien permitted under the Indenture (Aand, if the Indebtedness repaid is revolving credit Indebtedness, to correspondingly reduce commitments with respect thereto), (2) to prepay Loans Indebtedness of a Restricted Subsidiary that is not a Guarantor, (3) obligations under the Notes or Indebtedness (4) other Pari Passu Indebtedness; provided that if the Issuer shall so reduce Obligations under unsecured Pari Passu Indebtedness, the Issuer will equally and ratably reduce Obligations under the Notes outstanding hereunder as provided under Section 3.07 hereof, 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 in Section 2.10(c) or (B4.10(f)) to all Holders to purchase at a purchase price equal to 100% of the extent not required to prepay Loans pursuant to Section 2.10(c)principal amount thereof, to be retained by Bidco and/or Restricted Subsidiariesplus accrued and unpaid interest, if any, the pro rata principal amount of Notes; or
(ii) to make investments an Investment in Bidco and its Subsidiaries; any one or more businesses (provided that Bidco 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 (a) used or useful in a Similar Business or (b) that replace the properties and assets that are the Restricted Subsidiaries will be deemed to have complied with this subject of such Asset Sale. In the case of clause (ii) if and to the extent thatof this Section 4.10(b), within the Reinvestment Period after the Asset Sale that generated a binding commitment shall be treated as a permitted application of the Net Proceeds, Bidco or such Restricted Subsidiary has entered into and not abandoned or rejected a binding agreement or letter of intent to consummate any such investment described in this clause (ii) with Proceeds from the good faith expectation that such Net Proceeds will be applied to satisfy such commitment within 180 days date of such commitment (an “Acceptable Commitment”) and, commitment; provided that in the event any such binding commitment is later cancelled or terminated for any reason before the Net Proceeds are applied in connection therewith, Bidco or such Restricted Subsidiary enters into another Acceptable Commitment (a “Second Commitment”) within 180 days of such cancellation or termination; provided that if any Second Commitment is later cancelled canceled or terminated for any reason before such Net Proceeds are so applied, then Bidco the Issuer or such Restricted Subsidiary shall prepay enters into another binding commitment (a “Second Commitment”) within nine months of such cancellation or termination of the Loans in accordance prior binding commitment; provided, further, that the Issuer or such Restricted Subsidiary may only enter into a Second Commitment under the foregoing provision one time with Section 2.10(c)respect to each Asset Sale.
(c) Pending the final application of any such Net Proceeds pursuant to this covenantProceeds, the holder Issuer or such Restricted Subsidiary of such Net Proceeds the Issuer may apply such Net Proceeds temporarily to reduce Indebtedness outstanding under the Revolving Facility or any other a revolving credit facility facility, if any, or otherwise use invest such Net Proceeds in any manner not prohibited by this AgreementIndenture. Bidco or Any Net Proceeds from any Restricted SubsidiaryAsset Sale that are not applied as provided and within the time period set forth in Section 4.10(b) (it being understood that any portion of such Net Proceeds used to make an offer to purchase Notes, as the case may bedescribed in clause (i) of Section 4.10(b), may elect to invest in Bidco and its Subsidiaries prior to receiving the Net Proceeds attributable to any given Asset Sale (provided that such investment shall be made no earlier than execution of a definitive agreement for the relevant Asset Sale) and deem the amount so invested deemed to be have been applied pursuant to such clause whether or not such offer is accepted) will be deemed to constitute “Excess Proceeds.” When the aggregate amount of Excess Proceeds exceeds $20 million, the Issuer shall make an offer to all Holders of Notes (and, at the option of the Issuer, to holders of any Pari Passu Indebtedness) (an “Asset Sale Offer”) to purchase the maximum principal amount of Notes in minimum amounts of $2,000 and integral multiples of $1,000 in excess thereof (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 (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 Pari Passu Indebtedness), to the date fixed for the closing of such offer, in accordance with clause (b)(ii) above the procedures set forth in Section 3.09 hereof. The Issuer will commence an Asset Sale Offer with respect to Excess Proceeds within ten (10) Business Days after the date that Excess Proceeds exceeds $20 million by mailing the notice required pursuant to Section 3.09, with a copy to the Trustee.
(d) 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 any purpose that is not prohibited by this Indenture. If the aggregate principal amount of Notes (and such Pari Passu Indebtedness) tendered by Holders thereof exceeds the amount of Excess Proceeds, the Trustee shall select the Notes to be purchased in the manner set forth in Section 4.10(f) hereof. Upon completion of any such Asset SaleSale Offer, the amount of Excess Proceeds shall be reset at zero.
(e) The Issuer shall comply with the requirements of Rule l4e-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 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) If more Notes (and such Pari Passu Indebtedness) are tendered pursuant to an Asset Sale Offer than the Issuer is required to purchase, selection of such Notes for purchase will be made by the Trustee on a pro rata basis or by lot, or by such other method in accordance with the procedures of DTC; provided that no Notes of $2,000 or less shall be purchased in part. Selection of such Pari Passu Indebtedness will be made pursuant to the terms of such Pari Passu Indebtedness.
Appears in 1 contract
Asset Sales. (a) Bidco shall The Company will not, and shall will not permit any of its Restricted Subsidiaries to, consummate an Asset Sale, Sale unless:
(i) Bidco the Company (or such its Restricted SubsidiarySubsidiaries, as the case may be, ) receives consideration at the time of such the Asset Sale at least equal to the Fair Market Value (as determined at the time of contractually agreeing to such Asset Sale) of the assets or equity interests issued or sold or otherwise disposed of; of; and
(ii) except in the case of a Permitted Asset Swap, if the property or assets sold or otherwise disposed of have a Fair Market Value in excess of the greater of $375,000,000 and 50% of Consolidated EBITDA for the most recently ended Test Period at the time of such disposition, calculated on a Pro Forma Basis, at least 75% of the consideration therefor received in the Asset Sale by Bidco the Company or such its Restricted Subsidiary, as the case may be, Subsidiaries is in the form of cash or Cash Equivalents; provided that the amount of:
(A) any liabilities, contingent or otherwise, of Bidco or such Restricted Subsidiary, other than liabilities that are by their terms subordinated to the Secured Obligations or that are owed to Bidco or a Restricted Subsidiary that (x) are assumed by the transferee of any such assets (or a third party in connection with such transfer) or (y) are otherwise cancelled or terminated in connection with the transaction with such transferee (other than intercompany debt owed to Bidco or its Restricted Subsidiaries) and, in each case, for which Bidco and all of its Restricted Subsidiaries have been validly released;
(B) any securities, notes or other obligations or assets received by Bidco or such Restricted Subsidiary from such transferee that are converted by Bidco or such Restricted Subsidiary into cash or Cash Equivalents (to the extent of the cash or Cash Equivalents received) within 180 days following the closing of such Asset Sale;
(C) Indebtedness of any Restricted Subsidiary that ceases to be a Restricted Subsidiary as a result of such Asset Sale (other than intercompany debt owed to Bidco or any Restricted Subsidiary), to the extent that Bidco and each other Restricted Subsidiary are released from any guarantee of payment of the principal amount of such Indebtedness in connection with such Asset Sale in accordance with the terms of this Agreement,
(D) consideration consisting of Indebtedness of a Borrower or a Guarantor (other than intercompany debt owed to Bidco or any Restricted Subsidiary and other than Subordinated Indebtedness) received after the Effective Date from Persons who are not Bidco, Holdings or any Restricted Subsidiary;
(E) any Designated Non-cash Consideration received by Bidco or such Restricted Subsidiary in such Asset Sale having an aggregate Fair Market Value taken together with all other Designated Non-cash Consideration received pursuant to this clause (E) that is at that time outstanding, not to exceed the greater of $225,000,000 and 30% of Consolidated EBITDA for the most recently ended Test Period at the time of the receipt of such Designated Non-cash Consideration, calculated on a Pro Forma Basis (with the Fair Market Value of each such item of Designated Non-cash Consideration being measured pursuant to this clause (E) at Bidco’s option, either at the time of contractually agreeing to such Asset Sale or at the time received and, in either case, without giving effect to subsequent changes in value); and
(F) any Investment, Capital Stock, assets, property or capital or other expenditure of the kind referred to in Section 6.04(b)(ii) shall be deemed to be Cash Equivalents for purposes of this provision and for no other purpose.
(b) Within 90 days after the Reinvestment Period after BidcoCompany’s or any Restricted SubsidiarySubsidiary of the Company’s receipt of (x) the Net Proceeds of any Asset SaleSale or (y) aggregate cash proceeds in respect of any Co-Promotion Arrangement or Intellectual Property License to the extent such proceeds constitute fixed cash payments, Bidco the Company or such Restricted Subsidiary shall of the Company may apply an amount equal to the Net Proceeds from such Asset Sale,Sale or such aggregate cash proceeds, at its option:
(i) (A) to prepay Loans or Indebtedness in accordance with Section 2.10(c) if the Asset Sale is an Intellectual Property Sale, or (B) with respect to aggregate cash proceeds received in respect of any Co-Promotion Arrangement or Intellectual Property License, the extent not required percentage of the Net Proceeds or aggregate cash proceeds set forth in the “Note Redemption” column set forth in the table below shall be applied to prepay Loans pursuant to Section 2.10(c), to be retained by Bidco and/or Restricted Subsidiariespermanently redeem the Notes equally and ratably as provided under Article 11; orand
(ii) (A) if the Asset Sale is not an Intellectual Property Sale, or (B) with respect to the percentage of the Net Proceeds or aggregate cash proceeds set forth in the “Company Retention” column in the table below which are not used to redeem the notes pursuant to clause (i) above, such Net Proceeds or aggregate cash proceeds shall be applied to research and development or clinical development efforts in connection with the Products or other potential product candidates that may be introduced by the Company, or to make investments an Investment in Bidco 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, if such Person is a Restricted Subsidiary of the Company, in an increase in the percentage ownership of such Person by the Company or any Restricted Subsidiary of the Company), noncurrent assets, or non-current property or capital expenditures, in each case (1) used or useful in a Permitted Business or (2) that replace the properties and its Subsidiariesassets that are the subject of such Asset Sale; provided that Bidco and the Restricted Subsidiaries will any such Investment, assets, property or capital expenditures shall be deemed to have complied with this clause pledged as Collateral (ii) if and to the extent that, within the Reinvestment Period after the Asset Sale that generated the including any assets held by a Person acquired using Net Proceeds, Bidco or such Restricted Subsidiary has entered into and not abandoned or rejected a binding agreement or letter of intent to consummate any such investment described in this clause (ii) 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 such commitment is later cancelled or terminated for any reason before the Net Proceeds are applied in connection therewith, Bidco or such Restricted Subsidiary enters into another Acceptable Commitment (a “Second Commitment”) within 180 days of such cancellation or termination; provided that if any Second Commitment is later cancelled or terminated for any reason before such Net Proceeds are applied, then Bidco or such Restricted Subsidiary shall prepay the Loans in accordance with Section 2.10(c).
(c) . Pending the final application of any Net Proceeds pursuant to under this covenantSection 4.14, the holder of such Net Proceeds may apply such Net Proceeds temporarily shall be held by the Collateral Agent as Collateral. First $15.0 0.0 100.0 Next $20.0 30.0 70.0 Next $20.0 40.0 60.0 Next $20.0 55.0 45.0 Next $20.0 70.0 30.0 Any remaining proceeds thereafter 80.0 20.0
(c) Notwithstanding anything to reduce Indebtedness outstanding under the Revolving Facility or contrary in this Section 4.14, the Company will not, and will not permit any other revolving credit facility or otherwise use such Net Proceeds in any manner not prohibited by this Agreement. Bidco or any of its Restricted SubsidiarySubsidiaries to, as the case may be, may elect to invest in Bidco and its Subsidiaries prior to receiving the Net Proceeds attributable to any given consummate an Asset Sale (provided that such investment shall be made no earlier than execution consisting of, in whole or in part, any Equity Interests of a definitive agreement for 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 relevant Asset Sale) and deem the amount so invested to be applied pursuant to and in accordance with clause (b)(ii) above with respect to Equity Interests of such Asset SaleGuarantor.
Appears in 1 contract
Asset Sales. (a) Bidco The Issuer shall not, and shall not permit any of its Restricted Subsidiaries to, consummate cause or make an Asset Sale, unless:
unless (ix) Bidco the Issuer or such any of its Restricted SubsidiarySubsidiaries, as the case may be, receives consideration at the time of such Asset Sale at least equal to the Fair Market Value (as determined at in good faith by the time of contractually agreeing to such Asset SaleIssuer) of the assets sold or otherwise disposed of; and
of and (iiy) except in the case of a Permitted Asset Swap, if the property or assets sold or otherwise disposed of have a Fair Market Value in excess of the greater of $375,000,000 and 50% of Consolidated EBITDA for the most recently ended Test Period at the time of such disposition, calculated on a Pro Forma Basis, at least 75% of the consideration therefor received by Bidco the Issuer or such Restricted Subsidiary, as the case may be, is in the form of cash or Cash Equivalents; provided PROVIDED that the amount of:
(Ai) any liabilities, contingent or otherwise, of Bidco liabilities (as shown on the Issuer's or such Restricted Subsidiary, 's most recent balance sheet or in the notes thereto) of the Issuer or any Restricted Subsidiary of the Issuer (other than liabilities that are by their terms subordinated to the Secured Obligations or Notes) that are owed to Bidco or a Restricted Subsidiary that (x) are assumed by the transferee of any such assets (or a third party in connection with such transfer) or (y) are otherwise cancelled or terminated in connection with the transaction with such transferee (other than intercompany debt owed to Bidco or its Restricted Subsidiaries) and, in each case, for which Bidco and all of its Restricted Subsidiaries have been validly released;assets,
(Bii) any securities, notes or other obligations or other securities or assets received by Bidco the Issuer or such Restricted Subsidiary of the Issuer from such transferee that are converted by Bidco the Issuer or such Restricted Subsidiary of the Issuer into cash or Cash Equivalents within 180 days of the receipt thereof (to the extent of the cash or Cash Equivalents received) within 180 days following the closing of such Asset Sale;), and
(C) Indebtedness of any Restricted Subsidiary that ceases to be a Restricted Subsidiary as a result of such Asset Sale (other than intercompany debt owed to Bidco or any Restricted Subsidiary), to the extent that Bidco and each other Restricted Subsidiary are released from any guarantee of payment of the principal amount of such Indebtedness in connection with such Asset Sale in accordance with the terms of this Agreement,
(D) consideration consisting of Indebtedness of a Borrower or a Guarantor (other than intercompany debt owed to Bidco or any Restricted Subsidiary and other than Subordinated Indebtedness) received after the Effective Date from Persons who are not Bidco, Holdings or any Restricted Subsidiary;
(Eiii) any Designated Non-cash Consideration received by Bidco the Issuer or such any of its Restricted Subsidiary Subsidiaries in such Asset Sale having an aggregate Fair Market Value Value, taken together with all other Designated Non-cash Consideration received pursuant to this clause (Eiii) that is at that time outstanding, not to exceed the greater of $225,000,000 and 306.25% of Consolidated EBITDA for Total Assets of the most recently ended Test Period Issuer at the time of the receipt of such Designated Non-cash Consideration, calculated on a Pro Forma Basis Consideration (with the Fair Market Value of each such item of Designated Non-cash Consideration being measured pursuant to this clause (E) at Bidco’s option, either at the time of contractually agreeing to such Asset Sale or at the time received and, in either case, and without giving effect to subsequent changes in value); and
(F) any Investment, Capital Stock, assets, property or capital or other expenditure of the kind referred to in Section 6.04(b)(ii) shall be deemed to be Cash Equivalents for the purposes of this provision and for no other purposeSection 4.06(a).
(b) Within 485 days after the Reinvestment Period after Bidco’s Issuer's or any Restricted Subsidiary’s Subsidiary of the Issuer's receipt of the Net Proceeds of any Asset SaleSale (or Event of Loss Proceeds), Bidco the Issuer or such Restricted Subsidiary shall of the Issuer may apply an amount equal to the Net Proceeds from such Asset Sale,Sale together with any Event of Loss Proceeds, at its option:
(i) to permanently reduce Obligations under Secured Indebtedness or Pari Passu Indebtedness (A) to prepay Loans PROVIDED that if the Issuer 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 Issuer's guarantee of Indebtedness of any Restricted Subsidiary of the Issuer), the Issuer shall 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 Section 2.10(cthe 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 Notes that would otherwise be prepaid) or (B) 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 if an offer to purchase any Indebtedness of any of the Issuer or its Restricted Subsidiaries is made in accordance with the terms of such Indebtedness, the obligation to permanently reduce Indebtedness of the Issuer 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 required accepted by the holders thereof, and no Net Proceeds in the amount of such offer will be deemed to prepay Loans pursuant to Section 2.10(c), to be retained by Bidco and/or Restricted Subsidiaries; orexist 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 Issuer), or capital expenditures or assets, in each case used or useful in a Similar Business, and/or
(iii) to make investments an investment in Bidco 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 its Subsidiariesassets that are the subject of such Asset Sale or Event of Loss; provided PROVIDED that Bidco and in the Restricted Subsidiaries will be deemed to have complied with this clause case of clauses (ii) if and to the extent that(iii) above, within the Reinvestment Period after the Asset Sale that generated a binding commitment shall be treated as a permitted application of the Net Proceeds, Bidco or such Restricted Subsidiary has entered into and not abandoned or rejected a binding agreement or letter of intent to consummate any such investment described in this clause (ii) with Proceeds from the good faith expectation that such Net Proceeds will be applied to satisfy such commitment within 180 days date of such commitment (an “Acceptable Commitment”) and, in the event any such binding commitment is later cancelled or terminated for any reason before the Net Proceeds are applied in connection therewith, Bidco or such Restricted Subsidiary enters into another Acceptable Commitment (a “Second Commitment”) within 180 days of such cancellation or termination; provided that if any Second Commitment is later cancelled canceled or terminated for any reason before such Net Proceeds are so applied, then Bidco the Issuer or such Restricted Subsidiary shall prepay enters into another binding commitment within nine months of such cancellation or termination of the Loans in accordance with Section 2.10(c).
(c) prior binding commitment. Pending the final application of any such Net Proceeds pursuant to this covenant(or Event of Loss Proceeds), the holder 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 (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 4.06(b) (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 (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 Issuer shall make an offer to all Holders of Notes and, at the option of the Issuer, to holders of any Pari Passu Indebtedness (an "ASSET SALE OFFER") to purchase the maximum principal amount of Notes (and such Pari Passu Indebtedness) that is an integral multiple of $1,000 that may apply 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 Net 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. The Issuer shall commence an Asset Sale Offer with respect to Excess Proceeds temporarily within ten Business Days after the date that Excess Proceeds exceed $55.0 million by mailing the notice required pursuant to reduce Indebtedness outstanding 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, the Issuer 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 (and such Pari Passu Indebtedness) 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 Revolving Facility or Exchange Act and any other revolving credit facility securities laws and regulations to the extent such laws or otherwise use such Net Proceeds 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 manner 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 prohibited be deemed to have breached its obligations described in this Indenture by this Agreement. Bidco or any Restricted Subsidiaryvirtue 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 case may beamount of the Excess Proceeds, may elect to invest in Bidco and its Subsidiaries prior to receiving (ii) the allocation of the Net Proceeds attributable from the Asset Sales pursuant to any given which such Asset Sale Offer is being made and (provided 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 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. 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.
(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 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 investment 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 Issuer is required to purchase, the principal amount of the Notes (and Pari Passu Indebtedness) to be purchased will be determined pro rata based on the principal amount so tendered and the selection of the actual Notes for purchase shall be made by the Trustee on a pro rata basis to the extent practicable; PROVIDED, HOWEVER, that no earlier Notes (or Pari Passu Indebtedness) of $2,000 or less shall be purchased in part.
(f) Notice of an Asset Sale Offer shall be mailed by first class mail, postage prepaid, at least 30 but not more than execution 60 days before the purchase date to each Holder of a definitive agreement for the relevant Asset Sale) and deem the amount so invested Notes at such Holder's registered address. If any Note is to be applied pursuant to and purchased in accordance with clause (b)(ii) above with respect part only, any notice of purchase that relates to such Asset SaleNote 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 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 (Intelsat LTD)
Asset Sales. (a) Bidco The Issuer shall not, and shall not permit any of its Restricted Subsidiaries to, consummate cause or make an Asset Sale, unless:
unless (ix) Bidco the Issuer or such any of its Restricted SubsidiarySubsidiaries, as the case may be, receives consideration at the time of such Asset Sale at least equal to the Fair Market Value (as determined at in good faith by the time of contractually agreeing to such Asset SaleIssuer) of the assets sold or otherwise disposed of; and
, and (iiy) except in the case of a Permitted Asset Swap, if the property or assets sold or otherwise disposed of have a Fair Market Value in excess of the greater of $375,000,000 and 50% of Consolidated EBITDA for the most recently ended Test Period at the time of such disposition, calculated on a Pro Forma Basis, at least 75% of the consideration therefor received by Bidco the Issuer or such Restricted Subsidiary, as the case may be, is in the form of cash or Cash Equivalents; provided that the amount of:
(Ai) any liabilities, contingent or otherwise, of Bidco liabilities (as shown on the Issuer’s or such Restricted Subsidiary, ’s most recent balance sheet or in the notes thereto) of the Issuer or any Restricted Subsidiary of the Issuer (other than liabilities that are by their terms subordinated to the Secured Obligations Securities or any Guarantee) that are owed to Bidco or a Restricted Subsidiary that (x) are assumed by the transferee of any such assets (or a third party in connection with such transfer) or (y) are otherwise cancelled or terminated in connection with the transaction with such transferee (other than intercompany debt owed to Bidco or its Restricted Subsidiaries) and, in each case, for which Bidco and all of its Restricted Subsidiaries have been validly released;assets,
(Bii) any securities, notes or other obligations or other securities or assets received by Bidco the Issuer or such Restricted Subsidiary of the Issuer from such transferee that are converted by Bidco the Issuer or such Restricted R stricted Subsidiary of the Issuer into cash or Cash Equivalents within 180 days of the receipt thereof (to the extent of the cash or Cash Equivalents received) within 180 days following the closing of such Asset Sale;), and
(C) Indebtedness of any Restricted Subsidiary that ceases to be a Restricted Subsidiary as a result of such Asset Sale (other than intercompany debt owed to Bidco or any Restricted Subsidiary), to the extent that Bidco and each other Restricted Subsidiary are released from any guarantee of payment of the principal amount of such Indebtedness in connection with such Asset Sale in accordance with the terms of this Agreement,
(D) consideration consisting of Indebtedness of a Borrower or a Guarantor (other than intercompany debt owed to Bidco or any Restricted Subsidiary and other than Subordinated Indebtedness) received after the Effective Date from Persons who are not Bidco, Holdings or any Restricted Subsidiary;
(Eiii) any Designated Non-cash Consideration received by Bidco the Issuer or such any of its Restricted Subsidiary Subsidiaries in such Asset Sale having an aggregate Fair Market Value Value, taken together with all other Designated Non-cash Consideration received pursuant to this clause (Eiii) that is at that time outstanding, not to exceed the greater of $225,000,000 and 302.0% of Consolidated EBITDA for the most recently ended Test Period Total Assets and $50.0 million at the time of the receipt of such Designated Non-cash Consideration, calculated on a Pro Forma Basis Consideration (with the Fair Market Value of each such item of Designated Non-cash Consideration being measured pursuant to this clause (E) at Bidco’s option, either at the time of contractually agreeing to such Asset Sale or at the time received and, in either case, and without giving effect to subsequent changes in value); and
(F) any Investment, Capital Stock, assets, property or capital or other expenditure of the kind referred to in Section 6.04(b)(ii) shall be deemed to be Cash Equivalents for the purposes of this provision and for no other purposeSection 4.06(a).
(b) Within 365 days after the Reinvestment Period after BidcoIssuer’s or any Restricted SubsidiarySubsidiary of the Issuer’s receipt of the Net Proceeds of any Asset Sale, Bidco the Issuer or such Restricted Subsidiary shall of the Issuer may apply an amount equal to the Net Proceeds from such Asset Sale,, at its option:
(i) to repay Indebtedness constituting First Priority Lien Obligations (Aand, 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) to prepay Loans or Indebtedness by making an offer (in accordance with Section 2.10(cthe 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 (B) Indebtedness of a Restricted Subsidiary that is not a Guarantor, in each case other than Indebtedness owed to the extent not required to prepay Loans pursuant to Section 2.10(c), to be retained by Bidco and/or Restricted Subsidiaries; orIssuer or an Affiliate of the Issuer,
(ii) to make investments an investment in Bidco 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 its Subsidiariesassets 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 Bidco and the Restricted Subsidiaries will be deemed to have complied with this clause (ii) if and to the extent that, within the Reinvestment Period after the Asset Sale that generated the Net Proceeds, Bidco or such Restricted Subsidiary has entered into and not abandoned or rejected a binding agreement or letter of intent to consummate any such investment described in this clause (ii) 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 such binding commitment is later cancelled or terminated for any reason before the Net Proceeds are applied in connection therewith, Bidco or such Restricted Subsidiary enters into another Acceptable Commitment (a “Second Commitment”) within 180 days of such cancellation or termination; provided that if any Second Commitment is later cancelled canceled or terminated for any reason before such Net Proceeds are so applied, then Bidco the Issuer or such Restricted Subsidiary shall prepay enters into another binding commitment within nine months of such cancellation or termination of the Loans in accordance prior binding commitment; provided, further that the Issuer or such Restricted Subsidiary may only enter into such a second commitment under the foregoing provision one time with Section 2.10(c).
(c) 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 pursuant to 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 covenant, the holder Section 4.06(b) (it being understood that any portion of such Net Proceeds used to make an offer to purchase Securities, as described in clause (i) 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 apply 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 Net 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 temporarily within 10 Business Days after the date that Excess Proceeds exceeds $15.0 million by mailing the notice required pursuant to reduce Indebtedness outstanding 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 Revolving Facility or Exchange Act and any other revolving credit facility securities laws and regulations to the extent such laws or otherwise use such Net Proceeds 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 manner 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 prohibited be deemed to have breached its obligations described in this Indenture by this Agreement. Bidco or any Restricted Subsidiaryvirtue 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 case may beamount of the Excess Proceeds, may elect to invest in Bidco and its Subsidiaries prior to receiving (ii) the allocation of the Net Proceeds attributable from the Asset Sales pursuant to any given which such Asset Sale Offer is being made and (provided 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 investment 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); provided that no earlier 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 execution of a definitive agreement for 60 days before the relevant Asset Sale) and deem the amount so invested purchase date to each Holder at such Holder’s registered address. If any Security is to be applied pursuant to and purchased in accordance with clause (b)(ii) above with respect part only, any notice of purchase that relates to such Asset SaleSecurity 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) Bidco shall notIn addition to any other mandatory prepayments and offers of prepayments pursuant to this Section 5.01, and shall not permit on each date after the Funding Date upon which Holdings or any of its Restricted Subsidiaries to, consummate an receives any cash proceeds from any Asset Sale, unless:
other than an Excluded Asset Disposition, an amount equal to the Note Facility Mandatory Prepayment Amount of 100% of the Net Sale Proceeds therefrom (i1) Bidco automatically applied as a mandatory prepayment in accordance with the requirements of Section 5.01(j) if a Mandatory Payment Condition is in effect, and (2) otherwise offered to the Holders for prepayment of the Senior Notes if a Mandatory Payment Condition is not in effect, and if such offer is accepted in accordance with Section 5.01(i) below, such amount shall be applied as a mandatory prepayment in accordance with the requirements of Section 5.01(j); provided, however, that if such proceeds do not include proceeds of any Disposition of any Xxxxxxx Vessel or Fishing Rights appurtenant thereto, and if (x) there exists an Interest Deferral Period, but no Default or Event of Default then exists and the gross proceeds of such Asset Sales do not exceed in the aggregate (including amounts incurred under clause (y) hereof but excluding any amounts incurred under clause (z) of this subsection) for any fiscal year $5,000,000, or (y) no Interest Deferral Period, Default or Event of Default is then in effect and such gross proceeds do not in the aggregate exceed (including amounts incurred under clause (x) hereof but excluding any amounts incurred under clause (z) of this subsection) $20,000,000 in respect of all amounts occurring during any fiscal year, or (z) no Default or Event of Default then exists and such proceeds are received from a Sale-Leaseback Transaction and do not exceed the Sale Leaseback Limit; then such Net Sale Proceeds shall not be required to be so applied to the extent that the Company has delivered to the Holders a Notice of Asset Sale stating that such Net Sale Proceeds shall be used to acquire productive tangible assets (or Fishing Rights) of comparable monetary value to be engaged in the Business within 270 days following the date of the receipt of such Net Sale Proceeds (which Notice shall set forth the estimates of the Net Sale Proceeds to be so expended), and provided, further, that if all or any portion of such Net Sale Proceeds not required to be so applied pursuant to the preceding proviso are not so used within 270 days after the date of the receipt of such Net Sale Proceeds (or such Restricted Subsidiaryearlier date, if any, as the Company or the relevant Subsidiary determines not to reinvest the Net Sale Proceeds as set forth above), such remaining portion shall be applied on the last day of such period (or such earlier date, as the case may be, receives consideration at the time of such Asset Sale at least equal ) as provided above in this Section 5.01(c) without regard to the Fair Market Value (as determined at the time of contractually agreeing to such Asset Sale) of the preceding proviso. All replacement assets sold or otherwise disposed of; and
(ii) except shall, in the case of a Permitted Asset Swapaccordance with Section 8.12, if the property or assets sold or otherwise disposed of have a Fair Market Value in excess of the greater of $375,000,000 and 50% of Consolidated EBITDA for the most recently ended Test Period at the time of such disposition, calculated on a Pro Forma Basis, at least 75% of the consideration therefor received by Bidco or such Restricted Subsidiary, as the case may be, is in the form of cash or Cash Equivalents; provided that the amount of:
(A) any liabilities, contingent or otherwise, of Bidco or such Restricted Subsidiary, other than liabilities that are by their terms subordinated promptly become subject to the Secured Obligations or that are owed to Bidco or a Restricted Subsidiary that (x) are assumed by the transferee of any such assets (or a third party in connection with such transfer) or (y) are otherwise cancelled or terminated in connection with the transaction with such transferee (other than intercompany debt owed to Bidco or its Restricted Subsidiaries) andperfected, in each case, for which Bidco and all of its Restricted Subsidiaries have been validly released;
(B) any securities, notes or other obligations or assets received by Bidco or such Restricted Subsidiary from such transferee that are converted by Bidco or such Restricted Subsidiary into cash or Cash Equivalents (to the extent of the cash or Cash Equivalents received) within 180 days following the closing of such Asset Sale;
(C) Indebtedness of any Restricted Subsidiary that ceases to be a Restricted Subsidiary as a result of such Asset Sale (other than intercompany debt owed to Bidco or any Restricted Subsidiary)first priority Senior Creditor Liens, to the extent that Bidco and each other Restricted Subsidiary are released from any guarantee of payment of the principal amount of such Indebtedness in connection with such Asset Sale in accordance with the terms of this Agreement,
(D) consideration consisting of Indebtedness of a Borrower or a Guarantor (other than intercompany debt owed to Bidco or any Restricted Subsidiary and other than Subordinated Indebtedness) received after the Effective Date from Persons who are not Bidco, Holdings or any Restricted Subsidiary;
(E) any Designated Non-cash Consideration received by Bidco or such Restricted Subsidiary in such Asset Sale having an aggregate Fair Market Value taken together with all other Designated Non-cash Consideration received pursuant to this clause (E) that is at that time outstanding, not to exceed the greater of $225,000,000 and 30% of Consolidated EBITDA for the most recently ended Test Period at the time of the receipt of such Designated Non-cash Consideration, calculated on a Pro Forma Basis (with the Fair Market Value of each such item of Designated Non-cash Consideration being measured pursuant to this clause (E) at Bidco’s option, either at the time of contractually agreeing assets subject to such Asset Sale or at were required pursuant to the time received and, in either case, without giving effect to subsequent changes in value); and
(F) any Investment, Capital Stock, assets, property or capital or other expenditure terms of the kind referred to in Section 6.04(b)(ii) shall be deemed Senior Note Documents to be Cash Equivalents for purposes of this provision and for no other purpose.
(b) Within the Reinvestment Period after Bidco’s or any Restricted Subsidiary’s receipt of the Net Proceeds of any Asset Sale, Bidco or such Restricted Subsidiary shall apply an amount equal to the Net Proceeds from such Asset Sale,
(i) (A) to prepay Loans or Indebtedness in accordance with Section 2.10(c) or (B) to the extent not required to prepay Loans pursuant to Section 2.10(c), to be retained by Bidco and/or Restricted Subsidiaries; or
(ii) to make investments in Bidco and its Subsidiaries; provided that Bidco and the Restricted Subsidiaries will be deemed to have complied with this clause (ii) if and to the extent that, within the Reinvestment Period after the Asset Sale that generated the Net Proceeds, Bidco or such Restricted Subsidiary has entered into and not abandoned or rejected a binding agreement or letter of intent to consummate any such investment described in this clause (ii) 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 such commitment is later cancelled or terminated for any reason before the Net Proceeds are applied in connection therewith, Bidco or such Restricted Subsidiary enters into another Acceptable Commitment (a “Second Commitment”) within 180 days of such cancellation or termination; provided that if any Second Commitment is later cancelled or terminated for any reason before such Net Proceeds are applied, then Bidco or such Restricted Subsidiary shall prepay the Loans in accordance with Section 2.10(c).
(c) 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 the Revolving Facility or any other revolving credit facility or otherwise use such Net Proceeds in any manner not prohibited by this Agreement. Bidco or any Restricted Subsidiary, as the case may be, may elect to invest in Bidco and its Subsidiaries prior to receiving the Net Proceeds attributable to any given Asset Sale (provided that such investment shall be made no earlier than execution of a definitive agreement for the relevant Asset Sale) and deem the amount so invested to be applied pursuant to and in accordance with clause (b)(ii) above with respect subject to such Asset SaleLiens.
Appears in 1 contract
Asset Sales. (a) Bidco shall The Borrower will not, and shall will not permit any of its Restricted the Cargill Subsidiaries to, consummate an Asset Salesell, unlesstransfer, lease or otherwise dispose of any asset, including any Equity Interest owned by it, nor will the Borrower permit any of the Cargill Subsidiaries to issue any additional Equity Interest in such Subsidiary, except:
(a) sales of inventory, raw materials, supplies and used or surplus equipment, in each case in the ordinary course of business;
(b) sales, transfers and dispositions to the Borrower or a Cargill Subsidiary; provided that any such sales, transfers or dispositions involving a Subsidiary that is not a Loan Party shall be made in compliance with Section 6.09;
(c) sales, transfers and other dispositions of assets (other than any Equity Interests in a Subsidiary) that are not permitted by any other clause of this Section; provided that the aggregate fair market value of all assets sold, transferred or otherwise disposed of in reliance upon this clause(c) shall not exceed $10,000,000 during the term of this Agreement;
(d) Permitted Investments for cash consideration;
(e) the leasing, subleasing or licensing of real or personal property (including intellectual property but excluding Collateral) in the ordinary course of business;
(f) transfers and dispositions in the ordinary course of business of inventory or raw materials (or a combination thereof) in exchange for consideration that constitutes inventory or raw materials (or a combination thereof);
(g) transfers and dispositions of interests in real property in exchange for consideration that constitutes interests in real property, permits, easements, utilities, services and other accommodations from any Governmental Authority or other Person; provided that the aggregate fair market value of all interests in real property transferred or otherwise disposed of in reliance upon this clause (g) shall not exceed $5,000,000 for any one transaction or series of related transactions;
(h) sales, transfers and dispositions by the Borrower or any direct or indirect wholly owned Cargill Subsidiary of the Borrower of Equity Interests in any Cargill Subsidiary to (i) the Borrower, (ii) any Subsidiary Loan Party or (iii) the issuer of such Equity Interests, so long as, after the consummation of such sale, transfer or disposition, such issuer is a direct or indirect wholly owned Cargill Subsidiary of the Borrower;
(i) Bidco or such Restricted Subsidiary, as asset swaps in the case may be, receives consideration at the time ordinary course of such Asset Sale at least equal to the Fair Market Value (as determined at the time of contractually agreeing to such Asset Sale) of the assets sold or otherwise disposed ofbusiness that are described in Schedule 6.05; and
(iij) except in the case of a Permitted Asset Swapsale and leaseback transactions permitted under Section 6.06; provided that all sales, if the property or assets sold or otherwise disposed of have a Fair Market Value in excess of the greater of $375,000,000 transfers, leases and 50% of Consolidated EBITDA other dispositions permitted hereby (other than those permitted by clause (b) above) shall be made for the most recently ended Test Period at the time of such dispositionfair value and (other than those permitted by clauses (b), calculated on a Pro Forma Basis(f), at least 75(g), (h) and (i) above) not less than 85% of the consideration therefor received by Bidco or (excluding, for this purpose, any such Restricted Subsidiary, as the case may be, is consideration in the form of cash or Cash Equivalents; provided that the amount of:
(A) any liabilities, contingent or otherwise, of Bidco or such Restricted Subsidiary, other than liabilities that are by their terms subordinated to the Secured Obligations or that are owed to Bidco or a Restricted Subsidiary that (x) are assumed assumption by the transferee of any such assets (or a third party in connection with such transfer) or (y) are otherwise cancelled or terminated in connection with the transaction with such transferee (other than intercompany debt owed to Bidco or its Restricted Subsidiaries) and, in each case, for which Bidco and all of its Restricted Subsidiaries have been validly released;
(B) any securities, notes or other obligations or assets received by Bidco or such Restricted Subsidiary from such transferee that are converted by Bidco or such Restricted Subsidiary into cash or Cash Equivalents (to the extent purchaser of the cash or Cash Equivalents received) within 180 days following the closing of such Asset Sale;
(C) Indebtedness of any Restricted Subsidiary that ceases to be a Restricted Subsidiary as a result of such Asset Sale (other than intercompany debt owed to Bidco or any Restricted Subsidiary), to the extent that Bidco and each other Restricted Subsidiary are released from any guarantee of payment of the outstanding principal amount of such any Indebtedness in connection with such Asset Sale of the Borrower or any Cargill Subsidiary related to the assets that are so sold, transferred or otherwise disposed of) shall consist of cash consideration to be received in accordance with the terms of this Agreement,
(D) consideration consisting of Indebtedness of a Borrower or a Guarantor (other than intercompany debt owed to Bidco or any Restricted Subsidiary and other than Subordinated Indebtedness) received after the Effective Date from Persons who are not Bidco, Holdings or any Restricted Subsidiary;
(E) any Designated Non-cash Consideration received by Bidco or such Restricted Subsidiary in such Asset Sale having an aggregate Fair Market Value taken together with all other Designated Non-cash Consideration received pursuant to this clause (E) that is at that time outstanding, not to exceed the greater of $225,000,000 and 30% of Consolidated EBITDA for the most recently ended Test Period at the time of the receipt of such Designated Non-cash Consideration, calculated on a Pro Forma Basis (with the Fair Market Value of each such item of Designated Non-cash Consideration being measured pursuant to this clause (E) at Bidco’s option, either at the time of contractually agreeing to such Asset Sale or at the time received and, in either case, without giving effect to subsequent changes in value); and
(F) any Investment, Capital Stock, assets, property or capital or other expenditure of the kind referred to in Section 6.04(b)(ii) shall be deemed to be Cash Equivalents for purposes of this provision and for no other purposenormal trade terms.
(b) Within the Reinvestment Period after Bidco’s or any Restricted Subsidiary’s receipt of the Net Proceeds of any Asset Sale, Bidco or such Restricted Subsidiary shall apply an amount equal to the Net Proceeds from such Asset Sale,
(i) (A) to prepay Loans or Indebtedness in accordance with Section 2.10(c) or (B) to the extent not required to prepay Loans pursuant to Section 2.10(c), to be retained by Bidco and/or Restricted Subsidiaries; or
(ii) to make investments in Bidco and its Subsidiaries; provided that Bidco and the Restricted Subsidiaries will be deemed to have complied with this clause (ii) if and to the extent that, within the Reinvestment Period after the Asset Sale that generated the Net Proceeds, Bidco or such Restricted Subsidiary has entered into and not abandoned or rejected a binding agreement or letter of intent to consummate any such investment described in this clause (ii) 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 such commitment is later cancelled or terminated for any reason before the Net Proceeds are applied in connection therewith, Bidco or such Restricted Subsidiary enters into another Acceptable Commitment (a “Second Commitment”) within 180 days of such cancellation or termination; provided that if any Second Commitment is later cancelled or terminated for any reason before such Net Proceeds are applied, then Bidco or such Restricted Subsidiary shall prepay the Loans in accordance with Section 2.10(c).
(c) 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 the Revolving Facility or any other revolving credit facility or otherwise use such Net Proceeds in any manner not prohibited by this Agreement. Bidco or any Restricted Subsidiary, as the case may be, may elect to invest in Bidco and its Subsidiaries prior to receiving the Net Proceeds attributable to any given Asset Sale (provided that such investment shall be made no earlier than execution of a definitive agreement for the relevant Asset Sale) and deem the amount so invested to be applied pursuant to and in accordance with clause (b)(ii) above with respect to such Asset Sale.
Appears in 1 contract
Asset Sales. (a) Bidco shall The Company will not, and shall will not ----------- permit any of its Restricted Subsidiaries toto cause, consummate an make or suffer to exist any Asset Sale, unless:
(i) Bidco no Default exists or is continuing immediately prior to and after giving effect to such Asset Sale;
(ii) the Company (or the Restricted Subsidiary, as the case may be, ) receives consideration at the time of such Asset Sale at least equal to the Fair Market Value fair market value (as determined at evidenced by a resolution of the time Board of contractually agreeing Directors set forth in an Officers' Certificate delivered to such Asset Salethe Trustee) of the assets sold or otherwise disposed of; and
(iiiii) except in the case of a Permitted Asset Swap, if the property or assets sold or otherwise disposed of have a Fair Market Value in excess of the greater of $375,000,000 and 50% of Consolidated EBITDA for the most recently ended Test Period at the time of such disposition, calculated on a Pro Forma Basis, (a) at least 7580% of the consideration therefor received by Bidco the Company or such Restricted Subsidiary, as the case may be, Subsidiary is in the form of cash Cash Equivalents or Cash Equivalents; (b) the consideration therefor received by the Company or such Restricted Subsidiary is Cable Assets, or Capital Stock in a Qualified Subsidiary, the sole assets of which are Cable Assets, that are determined in the resolution referred to in (ii) above to be substantially comparable in type to the assets being sold or (c) the Company or such Restricted Subsidiary receives Capital Stock in a Cable Controlled Subsidiary (or an entity that will become a Cable Controlled Subsidiary after giving effect to such transaction) as consideration therefor, provided that the aggregate fair market value measured at such time of Capital Stock so received, and still held pursuant to all transactions under this clause (c), plus the aggregate fair market value of Capital Stock, if any, retained after the applicable 60 day period in all transactions under clause (d) below, will be no more than the proceeds that would be received from the sale of Equity Interests in a Cable Business (in which the Company has an Equity Interest) representing 5% of the Company's Net Households immediately prior to such transaction or (d) the Company or such Restricted Subsidiary receives as consideration therefor, Capital Stock in a company engaged in a Cable Business which is publicly traded either in the United Kingdom or in the United States, provided that (i) the aggregate fair market value measured at such time of Capital Stock so received will be no more than the proceeds that would be received from the sale of Equity Interests in a Cable Business (in which the Company has an Equity Interest) representing 10% of the Company's Net Households immediately prior to such transaction and (ii) within 60 days of an Asset Sale pursuant to this clause (d), the Company or such Restricted Subsidiary Monetizes an amount of:
of such Capital Stock having a fair market value equal to the difference between (Ax) the aggregate fair market value measured at such time of Capital Stock received and still held in all transactions pursuant to this clause (d), plus the aggregate fair market value of Capital Stock, if any, received and still held in all transactions under clause (c) above, and (y) the proceeds that would be received from the sale of Equity Interests in a Cable Business (in which the Company has an Equity Interest) representing 5% of the Company's Net Households immediately prior to such transaction; provided, however, that the amount of (x) any liabilities, contingent or otherwise, of Bidco liabilities (as shown on the Company's or such Restricted Subsidiary's most recent balance sheet or in the notes thereto), of the Company or any Restricted Subsidiary (other than liabilities that are by their terms subordinated to the Secured Obligations or Securities) that are owed to Bidco or a Restricted Subsidiary that (x) are assumed by the transferee of any such assets (or a third party in connection with such transfer) or and (y) are otherwise cancelled or terminated in connection with the transaction with such transferee (other than intercompany debt owed to Bidco or its Restricted Subsidiaries) and, in each case, for which Bidco and all of its Restricted Subsidiaries have been validly released;
(B) any securities, notes or other obligations or assets received by Bidco the Company or any such Restricted Subsidiary from such transferee that are immediately converted by Bidco the Company or such Restricted Subsidiary into cash or cash, shall be deemed to be Cash Equivalents (to the extent of the cash or Cash Equivalents received) within 180 days following the closing of such Asset Sale;
(C) Indebtedness of any Restricted Subsidiary that ceases to be a Restricted Subsidiary as a result of such Asset Sale (other than intercompany debt owed to Bidco or any Restricted Subsidiary), to the extent that Bidco and each other Restricted Subsidiary are released from any guarantee of payment of the principal amount of such Indebtedness in connection with such Asset Sale in accordance with the terms of this Agreement,
(D) consideration consisting of Indebtedness of a Borrower or a Guarantor (other than intercompany debt owed to Bidco or any Restricted Subsidiary and other than Subordinated Indebtedness) received after the Effective Date from Persons who are not Bidco, Holdings or any Restricted Subsidiary;
(E) any Designated Non-cash Consideration received by Bidco or such Restricted Subsidiary in such Asset Sale having an aggregate Fair Market Value taken together with all other Designated Non-cash Consideration received pursuant to this clause (Econversion) that is at that time outstanding, not to exceed the greater of $225,000,000 and 30% of Consolidated EBITDA for the most recently ended Test Period at the time of the receipt of such Designated Non-cash Consideration, calculated on a Pro Forma Basis (with the Fair Market Value of each such item of Designated Non-cash Consideration being measured pursuant to this clause (E) at Bidco’s option, either at the time of contractually agreeing to such Asset Sale or at the time received and, in either case, without giving effect to subsequent changes in value); and
(F) any Investment, Capital Stock, assets, property or capital or other expenditure of the kind referred to in Section 6.04(b)(ii) shall be deemed to be Cash Equivalents for purposes of this provision clause (iii). For purposes of this Indenture, the phrase "comparable in type" shall include, without limitation and for no other purposeirrespective of the asset being sold, a Qualified Cable Asset.
(b) Within the Reinvestment Period 360 days after Bidco’s or any Restricted Subsidiary’s receipt of the Net Proceeds of any Asset Sale, Bidco the Company (or such Restricted Subsidiary shall apply an amount equal to the Net Proceeds from such Asset Sale,
(i) (A) to prepay Loans or Indebtedness in accordance with Section 2.10(c) or (B) to the extent not required to prepay Loans pursuant to Section 2.10(c), to be retained by Bidco and/or Restricted Subsidiaries; or
(ii) to make investments in Bidco and its Subsidiaries; provided that Bidco and the Restricted Subsidiaries will be deemed to have complied with this clause (ii) if and to the extent that, within the Reinvestment Period after the Asset Sale that generated the Net Proceeds, Bidco or such Restricted Subsidiary has entered into and not abandoned or rejected a binding agreement or letter of intent to consummate any such investment described in this clause (ii) 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 such commitment is later cancelled or terminated for any reason before the Net Proceeds are applied in connection therewith, Bidco or such Restricted Subsidiary enters into another Acceptable Commitment (a “Second Commitment”) within 180 days of such cancellation or termination; provided that if any Second Commitment is later cancelled or terminated for any reason before such Net Proceeds are applied, then Bidco or such Restricted Subsidiary shall prepay the Loans in accordance with Section 2.10(c).
(c) 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 the Revolving Facility or any other revolving credit facility or otherwise use such Net Proceeds in any manner not prohibited by this Agreement. Bidco or any Restricted Subsidiary, as the case may be) will cause the Net Proceeds from such Asset Sale:
(i) to be used to permanently reduce Indebtedness of a Restricted Subsidiary; or
(ii) to be invested or reinvested in a Cable Controlled Property. Any Net Proceeds from any Asset Sale that are not used or reinvested as provided in the preceding sentence constitute "Excess Proceeds." When the aggregate amount of Excess Proceeds exceeds $15 million, the Company will make an offer (an "Asset Sale Offer") to all holders of Securities and Other ---------------- Qualified Notes to purchase the maximum principal amount of Securities and Other Qualified Notes (determined on a pro rata basis according to the accreted value or principal amount, as the case may elect be, of the Securities and the Other Qualified Notes; provided, however, that the asset sale offer must be made first to invest the holders of the Applicable Notes) that may be purchased out of the Excess Proceeds, if any, remaining after the consummation of the aforementioned Asset Sale Offer to the holders of the Applicable Notes (x) with respect to the Other Qualified Notes, based on the terms set forth in Bidco the indenture related to each issue of the Other Qualified Notes and (y) with respect to the Securities, at an offer price in cash in an amount equal to 100% of the outstanding principal amount thereof plus accrued and unpaid interest, if any, to the date fixed for the closing of such offer, in accordance with the procedures set forth in Section 3.08 hereof. To the extent that the aggregate principal amount or accreted value, as the case may be, of Securities and Other Qualified Notes tendered pursuant to an Asset Sale Offer is less than the Excess Proceeds, if any, remaining after the consummation of any required asset sale offer to the holders of the Applicable Notes, the Company may use such deficiency for general corporate purposes. If the principal amount or aggregate accreted value, as the case may be, of Securities and Other Qualified Notes surrendered by holders thereof exceeds the amount of Excess Proceeds, if any, remaining after the consummation of any required asset sale offer to the holders of the Applicable Notes, then such remaining Excess Proceeds will be allocated pro rata according to accreted value or principal amount, as the case may be, to the Securities and each issue of the Other Qualified Notes and, the Trustee will select the Securities to be purchased from the amount allocated to the Securities on the basis set forth in Section 3.08(e) hereof. Upon completion of any required asset sale offer to the holders of Applicable Notes and the completion of the Asset Sale Offer to the holders of the Securities and the Other Qualified Notes, the amount of Excess Proceeds will be reset at zero. No such Asset Sale Offer to purchase the Securities and Other Qualified Notes shall be required to be made by the Company pursuant to the foregoing provisions if there are no Excess Proceeds remaining after the consummation of any required asset sale offer made to holders of the Applicable Notes.
(c) Notwithstanding the provisions of Sections 4.10(a) and (b): the Company and its Subsidiaries may:
(i) sell, lease, transfer, convey or otherwise dispose of assets or property acquired after October 14, 1993, by the Company or any Subsidiary in a sale-and-leaseback transaction so long as the proceeds of such sale are immediately applied to permanently reduce Indebtedness of a Restricted Subsidiary or if there is no such Indebtedness or such proceeds exceed the amount of such Indebtedness then such proceeds or excess proceeds are reinvested in a Cable Controlled Property within 360 days after such sale, lease, transfer, conveyance or disposition;
(ii) (x) swap or exchange assets or property with a Cable Controlled Subsidiary or (y) issue, sell, lease, transfer, convey or otherwise dispose of equity securities of any of the Company's Subsidiaries to a Cable Controlled Subsidiary, in each of cases (x) and (y) so long as (A) the ratio of Indebtedness to Annualized Pro Forma EBITDA of the Company after such transaction is equal to or less than the ratio of Indebtedness to Annualized Pro Forma EBITDA of the Company immediately preceding such transaction provided, however, that if the ratio of Indebtedness to Annualized Pro Forma EBITDA of the Company immediately preceding such transaction is 6:1 or less, then the ratio of Indebtedness to Annualized Pro Forma EBITDA of the Company may be 0.5 greater than such ratio immediately preceding such transaction and (B) either (I) the assets so contributed consist solely of a license to operate a Cable Business and the Net Households covered by all of the licenses to operate cable and telephone systems held by the Company and its Restricted Subsidiaries immediately after and giving effect to such transaction equals or exceeds the number of Net Households covered by all of the licenses to operate cable and telephone systems held by the Company and its Restricted Subsidiaries immediately prior to receiving such transaction or (II) the assets so contributed consist solely of Cable Assets and the value of the Capital Stock received, immediately after and giving effect to such transaction, as determined by an investment banking firm of recognized standing with knowledge of the Cable Business, equals or exceeds the value of Cable Assets exchanged for such Capital Stock;
(iii) sell or transfer Long DistanceMicrowave Assets so long as the Net Proceeds attributable to any given Asset Sale (provided that of such investment shall be made no earlier than execution of a definitive agreement for the relevant Asset Sale) and deem the amount so invested to be sale or transfer are applied pursuant to and in accordance with clause Section 4.10(b) of this Indenture; or
(b)(iiiv) above issue, sell, lease, transfer, convey or otherwise dispose of Equity Interests in any Cable Controlled Subsidiary if (A) the only consideration received therefor other than Cash Equivalents is Cable Assets and (B) within 270 days of such disposition the Company or such Subsidiary, as the case may be, commits to invest the cash (or Cash Equivalents) proceeds therefrom in a Cable Controlled Property and actually so invests such proceeds in a Cable Controlled Property within 15 months of such disposition; provided, however, that in connection with each transaction under clauses (ii) and (iv) above, the Company delivers to the Trustee:
(1) with respect to any such Asset Saletransaction where the aggregate value of all the consideration received by the Company and its Subsidiaries exceeds $1 million or any series of such transactions where the aggregate value of all the consideration so received exceeds $1 million, a resolution of the Board of Directors set forth in an Officers' Certificate certifying that such disposition is approved by a majority of the disinterested directors on the Board of Directors, and
(2) with respect to any such transaction or any series of such transactions where the aggregate value of all the consideration received by the Company and its Subsidiaries exceeds $10 million, an opinion as to the fairness to the Company or such Subsidiary from a financial point of view issued by an investment banking firm of national standing with high yield experience together with an Officers' Certificate to the effect that such opinion complies with clause (2) of this proviso.
Appears in 1 contract
Samples: Indenture (NTL Inc /De/)
Asset Sales. (a) Bidco The Company shall not, and shall not permit any of its Restricted Subsidiaries to, consummate an Asset Sale, Sale unless:
(i) Bidco the Company or such the applicable Restricted Subsidiary, as the case may be, receives consideration at the time of such Asset Sale at least equal to the Fair Market Value (as determined at the time of contractually agreeing to such Asset Sale) fair market value of the assets sold or otherwise disposed of; andof (as determined in good faith by the Board of Directors of the Company);
(ii) except in the case of a Permitted Asset Swap, if the property or assets sold or otherwise disposed of have a Fair Market Value in excess of the greater of $375,000,000 and 50% of Consolidated EBITDA for the most recently ended Test Period at the time of such disposition, calculated on a Pro Forma Basis, at least 75% of the consideration therefor received by Bidco the Company or such the Restricted Subsidiary, as the case may be, is from such Asset Sale shall be in the form of cash or Cash Equivalents; provided that the amount of:
(A) any liabilities, contingent or otherwise, of Bidco liabilities (as shown on the Company’s or such Restricted Subsidiary, ’s most recent balance sheet) of the Company or any such Restricted Subsidiary (other than liabilities that are by their terms subordinated to the Secured Obligations Notes or the Guarantees) that are owed to Bidco or a Restricted Subsidiary that (x) are assumed by the transferee of any such assets (or a third party in connection with such transfer) or (y) are otherwise cancelled or terminated in connection with and from which the transaction with such transferee (other than intercompany debt owed to Bidco or its Restricted Subsidiaries) and, in each case, for which Bidco Company and all of its Restricted Subsidiaries have been validly releasedreleased by all creditors in writing;
(B) any securities, notes or other obligations or assets received by Bidco the Company or any such Restricted Subsidiary from such transferee that are converted by Bidco the Company or such Restricted Subsidiary into cash or Cash Equivalents within 180 days of the receipt thereof (to the extent of the cash or Cash Equivalents received) within 180 days following the closing of such Asset Sale);
(C) Indebtedness of any Restricted Subsidiary that ceases to be a Restricted Subsidiary as a result of such Asset Sale (other than intercompany debt owed to Bidco or any Restricted Subsidiary), to the extent that Bidco and each other Restricted Subsidiary are released from any guarantee of payment of the principal amount of such Indebtedness in connection with such Asset Sale in accordance with the terms of this Agreement,
(D) consideration consisting of Indebtedness of a Borrower or a Guarantor (other than intercompany debt owed to Bidco or any Restricted Subsidiary and other than Subordinated Indebtedness) received after the Effective Date from Persons who are not Bidco, Holdings or any Restricted Subsidiary;
(E) any Designated Non-cash Consideration received by Bidco the Company or such any of its Restricted Subsidiary Subsidiaries in such Asset Sale having an aggregate Fair Market Value fair market value, taken together with all other Designated Non-cash Consideration received pursuant to this clause (EC) that is at that time outstanding, not to exceed the greater of (x) $225,000,000 75 million and 30(y) 7.5% of Consolidated EBITDA for the most recently ended Test Period Total Assets at the time of the receipt of such Designated Non-cash Consideration, calculated on a Pro Forma Basis Consideration (with the Fair Market Value fair market value of each such item of Designated Non-cash Consideration being measured pursuant to this clause (E) at Bidco’s option, either at the time of contractually agreeing to such Asset Sale or at the time received and, in either case, and without giving effect to subsequent changes in value); and
(FD) any InvestmentProductive Assets, Capital Stockshall, assetsin each of clauses (A), property (B), (C) and (D) above, be deemed to be cash for the purposes of this Section 4.08(a); and
(iii) upon the consummation of an Asset Sale, the Company shall apply, or capital 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 the Debt Facility or other expenditure 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 the Debt Facility, effect a permanent reduction in the availability under such revolving credit facility regardless of the kind referred 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 6.04(b)(ii3.03 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 Cash Equivalents for purposes of this provision and for no other purpose.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
(bE) Within a combination of prepayment and investment permitted by the Reinvestment Period after Bidco’s or any Restricted Subsidiary’s receipt of the Net Proceeds of any Asset Sale, Bidco or such Restricted Subsidiary shall apply an amount equal to the Net Proceeds from such Asset Sale,
foregoing clauses (i) (A) to prepay Loans or Indebtedness in accordance with Section 2.10(c) or (B) to the extent not required to prepay Loans pursuant to Section 2.10(ciii)(A), to be retained by Bidco and/or Restricted Subsidiaries; or
(ii) to make investments in Bidco iii)(B), (iii)(C), and its Subsidiaries; provided that Bidco and the Restricted Subsidiaries will be deemed to have complied with this clause (ii) if and to the extent that, within the Reinvestment Period after the Asset Sale that generated the Net Proceeds, Bidco or such Restricted Subsidiary has entered into and not abandoned or rejected a binding agreement or letter of intent to consummate any such investment described in this clause (ii) 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 such commitment is later cancelled or terminated for any reason before the Net Proceeds are applied in connection therewith, Bidco or such Restricted Subsidiary enters into another Acceptable Commitment (a “Second Commitment”) within 180 days of such cancellation or termination; provided that if any Second Commitment is later cancelled or terminated for any reason before such Net Proceeds are applied, then Bidco or such Restricted Subsidiary shall prepay the Loans in accordance with Section 2.10(ciii)(D).
(c) . Pending the final application of any such Net Proceeds pursuant to this covenantCash Proceeds, the holder 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 may apply 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 temporarily 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 reduce Indebtedness outstanding under make an offer to purchase (the Revolving Facility or “Asset Sale Offer”) on a date (the “Asset Sale Offer Payment Date”) not less than 30 nor more than 60 days following the applicable Asset Sale Offer Trigger Date, from all Holders and holders of any other revolving credit facility Indebtedness of the Company or otherwise use a Restricted Subsidiary ranking pari passu with the Notes requiring the making of such Net Proceeds 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 manner not prohibited time any non-cash consideration (including any Designated Non-cash Consideration) received by this Agreement. Bidco the Company or any Restricted SubsidiarySubsidiary 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 invest tender their Notes in Bidco and its Subsidiaries prior to receiving the Net Proceeds attributable to any given Asset Sale 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 investment 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 any other purpose not prohibited by this Indenture. Upon completion of any such Asset Sale Offer, the Asset Sale Offer Amount shall be made no earlier than execution reset at zero. The Company shall comply with the requirements of a definitive agreement for Rule 14e-1 under the relevant Asset Sale) Exchange Act and deem any other securities laws and regulations thereunder to the amount so invested to be applied 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 4.08, the Company shall comply with the applicable securities laws and in accordance with clause (b)(ii) above with respect regulations and shall not be deemed to such Asset Salehave breached its obligations under this Section 4.08 by virtue thereof.
Appears in 1 contract
Samples: Seventh Supplemental Indenture (Central Garden & Pet Co)
Asset Sales. (a) Bidco shall The Company will not, and shall will not permit any of its Restricted Subsidiaries to, consummate an Asset Sale, Sale unless:
(i1) Bidco the Company or such Restricted Subsidiary, as the case may be, receives consideration at the time of such Asset Sale at least equal to the Fair Market Value fair market value (as determined in good faith by the Company at the time of contractually agreeing to such Asset Sale) of the assets sold or otherwise disposed of; and
(ii2) except in the case of a Permitted Asset Swap, if the property or assets sold or otherwise disposed of have a Fair Market Value in excess of the greater of $375,000,000 and 50% of Consolidated EBITDA for the most recently ended Test Period at the time of such disposition, calculated on a Pro Forma Basis, at least 75% of the consideration therefor received by Bidco the Company or such Restricted Subsidiary, as the case may be, is in the form of cash or Cash Equivalents; provided that the amount offollowing shall be deemed to be cash for purposes of this provision and for no other purpose:
(A) any liabilities, contingent or otherwise, of Bidco liabilities (as reflected in the Company’s or such Restricted Subsidiary’s most recent balance sheet or in the footnotes thereto or, if incurred or increased subsequent to the date of such balance sheet, such liabilities that would have been shown on the Company’s or such Restricted Subsidiary’s balance sheet or in the footnotes thereto if such incurrence or increase had taken place on the date of such balance sheet, as determined by the Company) of the Company or such Restricted Subsidiary (other than liabilities that are by their terms subordinated to the Secured Obligations or Notes) that are owed to Bidco or a Restricted Subsidiary that (x) are assumed by the transferee of any such assets (pursuant to a written agreement which releases or a third party in connection with indemnifies the Company or such transfer) or (y) are otherwise cancelled or terminated in connection with the transaction with Restricted Subsidiary from such transferee (other than intercompany debt owed to Bidco or its Restricted Subsidiaries) and, in each case, for which Bidco and all of its Restricted Subsidiaries have been validly releasedliabilities;
(B) any securities, notes or other similar obligations or assets received by Bidco the Company or such Restricted Subsidiary from such transferee that are converted by Bidco the Company or such Restricted Subsidiary into cash or Cash Equivalents (to the extent of the cash or Cash Equivalents received) within 180 days following of the closing of such Asset Sale;receipt thereof; and
(C) Indebtedness of any Restricted Subsidiary that ceases to be a Restricted Subsidiary as a result of such Asset Sale (other than intercompany debt owed to Bidco or any Restricted Subsidiary), to the extent that Bidco and each other Restricted Subsidiary are released from any guarantee of payment of the principal amount of such Indebtedness in connection with such Asset Sale in accordance with the terms of this Agreement,
(D) consideration consisting of Indebtedness of a Borrower or a Guarantor (other than intercompany debt owed to Bidco or any Restricted Subsidiary and other than Subordinated Indebtedness) received after the Effective Date from Persons who are not Bidco, Holdings or any Restricted Subsidiary;
(E) any Designated Non-cash Consideration received by Bidco the Company or such Restricted Subsidiary in such Asset Sale having an aggregate Fair Market Value fair market value, taken together with all other Designated Non-cash Consideration received pursuant to this clause (EC) that is at that time outstanding, not to exceed the greater of (i) $225,000,000 150 million and 30(ii) 3.50% of Consolidated EBITDA for the most recently ended Test Period Total Assets at the time of the receipt of such Designated Non-cash Consideration, calculated on a Pro Forma Basis (with the Fair Market Value fair market value of each such item of Designated Non-cash Consideration being measured pursuant to this clause (E) at Bidco’s option, either at the time of contractually agreeing to such Asset Sale or at the time received and, in either case, and without giving effect to subsequent changes in value); and
(F) any Investment, Capital Stock, assets, property or capital or other expenditure of the kind referred to in Section 6.04(b)(ii) shall be deemed to be Cash Equivalents for purposes of this provision and for no other purpose.
(b) Within 365 days after the Reinvestment Period after Bidco’s or any Restricted Subsidiary’s receipt of the any Net Proceeds of any Asset Sale, Bidco the Company or such Restricted Subsidiary shall Subsidiary, at its option, may apply an amount equal to the Net Proceeds from such Asset Sale,
(i1) to permanently reduce Indebtedness as follows:
(A) to prepay Loans or Indebtedness permanently reduce Secured Indebtedness, including without limitation, under the Senior Secured Credit Facilities, in accordance each case, which is secured by a Lien that is permitted by this Indenture and to correspondingly reduce commitments with Section 2.10(c) or respect thereto;
(B) to permanently reduce Obligations under other Senior Indebtedness of the Company or a Subsidiary Guarantor (and to correspondingly reduce commitments with respect thereto), provided that the Company shall equally and ratably reduce (or offer to reduce, as applicable) Obligations under the Notes on a pro rata basis to the extent not required the Obligations being reduced were incurred after the Issue Date; provided further that all reductions of Obligations under the Notes shall be made as provided under Section 3.07 herein or through open-market purchases (to prepay Loans pursuant the extent such purchases are at or above 100% of the principal amount thereof plus accrued and unpaid interest) or by making an offer (in accordance with the procedures set forth below for an Asset Sale Offer) to Section 2.10(c)all Holders of Notes to purchase their Notes at 100% of the principal amount thereof, to plus the amount of accrued but unpaid interest, if any, on the amount of Notes that would otherwise be retained by Bidco and/or Restricted Subsidiariesprepaid; or
(C) if the assets subject of such Asset Sale are the property or assets of a Restricted Subsidiary that is not a Subsidiary Guarantor, to permanently reduce Indebtedness of (i) a Restricted Subsidiary that is not a Subsidiary Guarantor, other than Indebtedness owed to the Company or any Restricted Subsidiary, or (ii) the Company or a Subsidiary Guarantor.
(2) to make investments (A) an Investment in Bidco and its Subsidiariesany one or more businesses; provided that Bidco 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 will be deemed 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 have complied with this clause make an Investment in (iiA) if any one or more businesses; provided that such Investment in any business is in the form of the acquisition of Capital Stock and to results in the extent 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) acquisitions of other assets that, within in each of (A), (B) and (C), replace the Reinvestment Period after businesses, properties and/or assets that are the subject of such Asset Sale that generated Sale; provided that, in the case of clauses (2) and (3) above, a binding commitment entered into not later than such 365-day period shall be treated as a permitted application of the Net ProceedsProceeds from the date of such commitment so long as the Company, Bidco or such other Restricted Subsidiary has entered enters into and not abandoned or rejected a binding agreement or letter of intent to consummate any such investment described in this clause (ii) 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 such commitment Acceptable Commitment is later cancelled or terminated for any reason before the Net Proceeds are applied in (x) connection therewith, Bidco therewith or such Restricted Subsidiary enters into another Acceptable Commitment (a “Second Commitment”y) within 180 days of such cancellation or termination; provided that if any Second Commitment is later cancelled or terminated for any reason before such Net Proceeds are applied, then Bidco not actually so invested or such Restricted Subsidiary shall prepay the Loans paid in accordance with Section 2.10(c).
clause (c2) or (3) above by the end of such 180-day period, then such Net Proceeds shall constitute Excess Proceeds. Pending the final application of any Net Proceeds pursuant to this covenantProceeds, the holder of such Net Proceeds Company (or the applicable Restricted Subsidiary) may apply such Net Proceeds temporarily to reduce Indebtedness outstanding under the Revolving Facility or any other revolving credit facility borrowings or otherwise use such invest the Net Proceeds in any manner that is not prohibited by this Agreement. Bidco Indenture.
(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 4.09(b) will be deemed to constitute “Excess Proceeds.” When the aggregate amount of Excess Proceeds exceeds $100.0 million, the Company shall make an offer to all Holders of the Notes and if required by the terms of any Indebtedness that is pari passu with the Notes or any Restricted SubsidiaryGuarantee (“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 an integral multiple of $1,000 (but in minimum amounts of $2,000) that may be purchased out of the Excess Proceeds at an offer price, in the case of the Notes, 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, and in the case of any Pari Passu Obligations at the offer price required by the terms thereof but not to exceed 100% of the principal amount thereof, plus accrued and unpaid interest, if any, in accordance with the procedures set forth herein. The Company will commence an Asset Sale Offer with respect to Excess Proceeds within 10 Business Days after the date that Excess Proceeds exceed $100.0 million by transmitting 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 with respect to Excess Proceeds of $100.0 million or less.
(d) To the extent that the aggregate amount of Notes and such Pari Passu Indebtedness, as the case may be, may elect tendered pursuant to invest in Bidco and its Subsidiaries prior to receiving the Net Proceeds attributable to any given an Asset Sale (provided that Offer is less than the Excess Proceeds, the Company may use any remaining Excess Proceeds for any purposes not otherwise prohibited under this Indenture. If the aggregate principal amount of Notes or Pari Passu Indebtedness, as the case may be, surrendered by such investment shall be made no earlier than execution of a definitive agreement for the relevant Asset Sale) and deem holders thereof exceeds the amount so invested to of Excess Proceeds, such Notes or Pari Passu Indebtedness, as the case may be, will be applied pursuant to purchased on a pro rata basis based on the accreted value or principal amount of such Notes or Pari Passu Indebtedness, as the case may be, tendered (and the Registrar will select the tendered Notes (in the case of physical Notes) of tendering holders on a pro rata basis, or such other basis in accordance with clause DTC procedures (b)(iiin the case of global Notes) above with respect to based on the amount of Notes tendered). Additionally, the Company 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 consummation or expiration of any Asset Sale Offer, any Net Proceeds not used to purchase Notes or Pari Passu Indebtedness in such Asset Sale Offer shall not be deemed Excess Proceeds and the Company may use any Net Proceeds not required to be used for general corporate purposes, subject to other covenants contained herein.
(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 the repurchase of the Notes pursuant to an Asset Sale Offer. To the extent that the provisions of any securities laws or regulations conflict with the provisions of Section 3.09 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. The provisions under this Indenture relative to the Company’s obligation to make an offer to repurchase the Notes as a result of an Asset Sale may be waived or modified with the written consent of the Holders of a majority in principal amount of the Notes then outstanding.
Appears in 1 contract
Samples: Indenture (Element Solutions Inc)
Asset Sales. (a) Bidco The Issuer shall not, and shall not permit any of its Restricted Subsidiaries to, consummate an Asset Sale, unless:
(i1) Bidco the Issuer or such Restricted Subsidiary, as the case may be, receives consideration at the time of such Asset Sale at least equal to the Fair Market Value fair market value (as determined at in good faith by the time of contractually agreeing to such Asset SaleIssuer) of the assets sold or otherwise disposed of; and
(ii2) except in the case of a Permitted Asset Swap, if the property or assets sold or otherwise disposed of have a Fair Market Value in excess of the greater of $375,000,000 and 50% of Consolidated EBITDA for the most recently ended Test Period at the time of such disposition, calculated on a Pro Forma Basis, at least 75% of the consideration therefor received by Bidco the Issuer or such Restricted Subsidiary, as the case may be, is in the form of cash or Cash Equivalents; provided that the amount of:
(A) any liabilities, contingent liabilities (as shown on the Issuer’s or otherwise, such Restricted Subsidiary’s most recent balance sheet or in the footnotes thereto) of Bidco the Issuer or such Restricted Subsidiary, other than liabilities that are by their terms subordinated to the Secured Obligations Notes (or Guarantees) or that are owed to Bidco the Issuer or a Restricted Subsidiary Subsidiary, that (x) are assumed by the transferee of any such assets (or a third party in connection with such transfer) or (y) are otherwise cancelled or terminated in connection with the transaction with such transferee (other than intercompany debt owed to Bidco or its Restricted Subsidiaries) and, in each case, and for which Bidco the Issuer and all of its Restricted Subsidiaries have been validly released;irrevocably released from such liabilities,
(B) any securities, notes or other obligations or assets received by Bidco the Issuer or such Restricted Subsidiary from such transferee that are converted by Bidco the Issuer or such Restricted Subsidiary into cash or Cash Equivalents (to the extent of the cash or Cash Equivalents received) within 180 days following the closing of such Asset Sale;, subject to ordinary settlement periods, and
(C) Indebtedness of any Restricted Subsidiary that ceases to be a Restricted Subsidiary as a result of such Asset Sale (other than intercompany debt owed to Bidco or any Restricted Subsidiary), to the extent that Bidco and each other Restricted Subsidiary are released from any guarantee of payment of the principal amount of such Indebtedness in connection with such Asset Sale in accordance with the terms of this Agreement,
(D) consideration consisting of Indebtedness of a Borrower or a Guarantor (other than intercompany debt owed to Bidco or any Restricted Subsidiary and other than Subordinated Indebtedness) received after the Effective Date from Persons who are not Bidco, Holdings or any Restricted Subsidiary;
(E) any Designated Non-cash Consideration received by Bidco the Issuer or such Restricted Subsidiary in such Asset Sale having an aggregate Fair Market Value fair market value, taken together with all other Designated Non-cash Consideration received pursuant to this clause (EC) that is at that time outstanding, not to exceed the greater of (x) $225,000,000 150,000,000 and 30(y) 25% of Consolidated EBITDA (for the most recently ended Test Period at four fiscal quarters ending immediately prior to the time date of the receipt of such Designated Non-cash ConsiderationConsideration for which internal financial statements are available), calculated on a Pro Forma Basis (with the Fair Market Value fair market value of each such item of Designated Non-cash Consideration being measured pursuant to this clause (E) at Bidco’s option, either at the time of contractually agreeing to such Asset Sale or at the time received and, in either case, and without giving effect to subsequent changes in value); and
(F) any Investment, Capital Stock, assets, property or capital or other expenditure of the kind referred to in Section 6.04(b)(ii) value shall be deemed to be Cash Equivalents cash for purposes of this provision and for no other purpose.
(b) Within 18 months after the Reinvestment Period after Bidco’s or any Restricted Subsidiary’s receipt of the any Net Proceeds of any Asset SaleSale by the Issuer or any Restricted Subsidiary, Bidco the Issuer or such Restricted Subsidiary shall Subsidiary, at its option, may apply an amount equal to the Net Proceeds from such Asset Sale,:
(i1) (Ax) to prepay Loans permanently reduce Obligations under any Secured Indebtedness, including Indebtedness under the Senior Secured Credit Facilities, the ABL Facility or Indebtedness the Existing Secured Notes, and to correspondingly reduce commitments with respect thereto, (y) to permanently reduce, prepay, repay or purchase Pari Passu Indebtedness; provided, that the Issuer equally and ratably reduce (or offer to reduce pursuant to an Asset Sale Offer) Obligations under the Notes , or (z) to make an offer (in accordance with the procedures set forth in Section 2.10(c3.09 and Section 4.10 hereof for an Asset Sale Offer) 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, redeem Notes as provided in Section 3.07 hereof or purchase Notes through open-market purchases (B) to the extent such purchases are at or above 100% of the principal amount thereof);
(2) solely in the case of an Asset Sale by a Restricted Subsidiary that is not required to prepay Loans pursuant to Section 2.10(c)a Guarantor, to be retained by Bidco and/or permanently reduce Obligations under Indebtedness of Restricted SubsidiariesSubsidiaries that are not Guarantors, and to correspondingly reduce commitments with respect thereto; or
(ii3) to (a) make investments an Investment in Bidco any one or more businesses, provided, however, that such Investment in any business is in the form of the acquisition of Capital Stock and its Subsidiariesresults 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 (d) 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 that Bidco and provided, however, that, in the Restricted Subsidiaries will be deemed to have complied with this case of clause (ii3) if and to the extent thatabove, within the Reinvestment Period after the Asset Sale that generated a binding commitment shall be treated as a permitted application of the Net Proceeds, Bidco Proceeds from the date of such commitment so long as the Issuer or such Restricted Subsidiary has entered enters into and not abandoned or rejected a binding agreement or letter of intent to consummate any such investment described in this clause (ii) commitment with the good faith expectation that such Net Proceeds will shall be applied to satisfy such commitment within the later of 18 months after receipt of such Net Proceeds and 180 days of following such commitment (an “Acceptable Commitment”) andcommitment; provided further, in the event any however, that if such commitment is later cancelled or terminated for any reason before after the Net Proceeds are applied in connection therewith, Bidco or such Restricted Subsidiary enters into another Acceptable Commitment (a “Second Commitment”) within 180 days later of such cancellation 18 month or termination; provided that if any Second Commitment is later cancelled or terminated 180 day period for any reason before such Net Proceeds are applied, then Bidco or such Restricted Subsidiary Net Proceeds shall prepay the Loans in accordance with Section 2.10(c)constitute Excess Proceeds.
(c) Any Net Proceeds from any Asset Sale described in the preceding paragraph that are not invested or applied as provided and within the time period set forth in the preceding paragraph will be deemed to constitute “Excess Proceeds”, except the amount of Excess Proceeds will be reduced by the sum of the amount of the Notes offered to be purchased in an offer pursuant to Section 4.10(b)(1) hereof. When the aggregate amount of Excess Proceeds with respect to the Notes exceeds $100,000,000, the Issuer shall make an offer to all Holders of the Notes and, if required by the terms of any Pari Passu Indebtedness, to all holders of such Indebtedness (an “Asset Sale Offer”), to purchase the maximum aggregate principal amount of such Notes and the maximum aggregate principal amount (or accreted value, if less) of such Indebtedness that is a minimum of $2,000 or an integral multiple of $1,000 thereof (in aggregate principal amount) that may be purchased out of such Excess Proceeds at an offer price in cash in an amount equal to 100% of the principal amount thereof plus accrued and unpaid interest (or such lesser price with respect to such other Pari Passu Indebtedness, if any, as may be provided by the terms of the agreements governing such other Indebtedness) to the date fixed for the closing of such offer, in accordance with the procedures set forth in this Indenture and the agreement governing the Pari Passu Indebtedness. The Issuer will commence an Asset Sale Offer with respect to Excess Proceeds within 20 Business Days after the date that Excess Proceeds exceed $100,000,000 by delivering the notice required pursuant to the terms of this Indenture, with a copy to the Trustee or otherwise in accordance with the procedures of DTC. The Issuer, in its sole discretion, may satisfy the foregoing obligations with respect to any Net Proceeds from an Asset Sale by making an Asset Sale Offer with respect to such Net Proceeds prior to the expiration of the relevant 18 month period (or such longer period provided above) or with respect to Excess Proceeds of $100,000,000 or less. To the extent that the aggregate principal amount of Notes and the aggregate principal amount (or accreted value, if applicable) of such Pari Passu Indebtedness validly tendered pursuant to an Asset Sale Offer is less than the Excess Proceeds with respect to the Notes, the Issuer may use any remaining Excess Proceeds for general corporate purposes, including to make Restricted Payments, subject to the other covenants contained in this Indenture or for any other purpose not otherwise prohibited by this Indenture. If the aggregate principal amount of Notes and the aggregate principal amount (or accreted value, if applicable) of the Indebtedness surrendered in an Asset Sale Offer exceeds the amount of Excess Proceeds, the Trustee or the Paying Agent shall select the Notes and the Issuer or the agent for such Indebtedness shall select such other Indebtedness to be purchased on a pro rata basis based on the principal amount of the Notes and the aggregate principal amount (or accreted value, if applicable) of such Indebtedness validly tendered. Upon completion of any such Asset Sale Offer, the amount of Excess Proceeds shall be reset at zero. Pending the final application of any Net Proceeds pursuant to this covenantSection 4.10, the holder of such Net Proceeds may (1) apply such Net Proceeds temporarily to reduce Indebtedness outstanding under the Revolving Facility or any other a revolving credit facility facility, including under any Credit Facilities, or otherwise use invest or apply such Net Proceeds in any manner not prohibited by this Agreement. Bidco or any Restricted SubsidiaryIndenture, as the case may be, may and (2) elect to invest in Bidco and its Subsidiaries additional assets prior to receiving the Net Proceeds attributable to any given Asset Sale (provided that such investment shall be made no earlier than the earliest of notice to the Trustee of the relevant Asset Sale, execution of a definitive agreement for the relevant Asset Sale, and consummation of the relevant Asset Sale) and deem the amount so invested to be applied pursuant to and in accordance with clause (b)(ii3) above of Section 4.10(b) with respect to such Asset Sale.
(d) The Issuer shall comply with the requirements of Rule 14e-1 under the Exchange Act and any other securities laws and regulations thereunder to the extent such laws or regulations are applicable in connection with the repurchase of the Notes pursuant to an Asset Sale Offer. To the extent that the provisions of any securities laws or regulations conflict with the provisions of this Indenture, the Issuer shall comply with the applicable securities laws and regulations and shall not be deemed to have breached its obligations described in this Indenture by virtue thereof.
(e) Except as described in clause (11) of Section 9.02, the provisions under this Indenture relative to the Issuer’s obligation to make an offer to repurchase the Notes as a result of an Asset Sale may be waived or modified with the written consent of the Holders of a majority in principal amount of the then outstanding Notes.
Appears in 1 contract
Asset Sales. (a) Bidco The Issuer shall not, and shall not permit any of its Restricted Subsidiaries to, consummate cause or make an Asset Sale, unless:
unless (ix) Bidco the Issuer or such any of its Restricted SubsidiarySubsidiaries, as the case may be, receives consideration at the time of such Asset Sale at least equal to the Fair Market Value (as determined at in good faith by the time of contractually agreeing to such Asset SaleIssuer) of the assets sold or otherwise disposed of; and
of and (iiy) except in the case of a Permitted Asset Swap, if the property or assets sold or otherwise disposed of have a Fair Market Value in excess of the greater of $375,000,000 and 50% of Consolidated EBITDA for the most recently ended Test Period at the time of such disposition, calculated on a Pro Forma Basis, at least 75% of the consideration therefor received by Bidco the Issuer or such Restricted Subsidiary, as the case may be, is in the form of cash or Cash Equivalents; provided PROVIDED that the amount of:
(Ai) any liabilities, contingent or otherwise, of Bidco liabilities (as shown on the Issuer's or such Restricted Subsidiary, 's most recent balance sheet or in the notes thereto) of the Issuer or any Restricted Subsidiary of the Issuer (other than liabilities that are by their terms subordinated to the Secured Obligations or Notes) that are owed to Bidco or a Restricted Subsidiary that (x) are assumed by the transferee of any such assets (or a third party in connection with such transfer) or (y) are otherwise cancelled or terminated in connection with the transaction with such transferee (other than intercompany debt owed to Bidco or its Restricted Subsidiaries) and, in each case, for which Bidco and all of its Restricted Subsidiaries have been validly released;assets,
(Bii) any securities, notes or other obligations or other securities or assets received by Bidco the Issuer or such Restricted Subsidiary of the Issuer from such transferee that are converted by Bidco the Issuer or such Restricted Subsidiary of the Issuer into cash or Cash Equivalents within 180 days of the receipt thereof (to the extent of the cash or Cash Equivalents received) within 180 days following the closing of such Asset Sale;), and
(C) Indebtedness of any Restricted Subsidiary that ceases to be a Restricted Subsidiary as a result of such Asset Sale (other than intercompany debt owed to Bidco or any Restricted Subsidiary), to the extent that Bidco and each other Restricted Subsidiary are released from any guarantee of payment of the principal amount of such Indebtedness in connection with such Asset Sale in accordance with the terms of this Agreement,
(D) consideration consisting of Indebtedness of a Borrower or a Guarantor (other than intercompany debt owed to Bidco or any Restricted Subsidiary and other than Subordinated Indebtedness) received after the Effective Date from Persons who are not Bidco, Holdings or any Restricted Subsidiary;
(Eiii) any Designated Non-cash Consideration received by Bidco the Issuer or such any of its Restricted Subsidiary Subsidiaries in such Asset Sale having an aggregate Fair Market Value Value, taken together with all other Designated Non-cash Consideration received pursuant to this clause (Eiii) that is at that time outstanding, not to exceed the greater of $225,000,000 and 306.25% of Consolidated EBITDA for Total Assets of the most recently ended Test Period Issuer at the time of the receipt of such Designated Non-cash Consideration, calculated on a Pro Forma Basis Consideration (with the Fair Market Value of each such item of Designated Non-cash Consideration being measured pursuant to this clause (E) at Bidco’s option, either at the time of contractually agreeing to such Asset Sale or at the time received and, in either case, and without giving effect to subsequent changes in value); and
(F) any Investment, Capital Stock, assets, property or capital or other expenditure of the kind referred to in Section 6.04(b)(ii) shall be deemed to be Cash Equivalents for the purposes of this provision and for no other purposeSection 4.06(a).
(b) Within 485 days after the Reinvestment Period after Bidco’s Issuer's or any Restricted Subsidiary’s Subsidiary of the Issuer's receipt of the Net Proceeds of any Asset SaleSale (or Event of Loss Proceeds), Bidco the Issuer or such Restricted Subsidiary shall of the Issuer may apply an amount equal to the Net Proceeds from such Asset Sale,Sale together with any Event of Loss Proceeds, at its option:
(i) to permanently reduce Obligations under Secured Indebtedness or Pari Passu Indebtedness (A) to prepay Loans PROVIDED that if the Issuer 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 Issuer's guarantee of Indebtedness of any Restricted Subsidiary of the Issuer), the Issuer shall 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 Section 2.10(cthe 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 Notes that would otherwise be prepaid) or (B) 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 if an offer to purchase any Indebtedness of any of the Issuer or its Restricted Subsidiaries is made in accordance with the terms of such Indebtedness, the obligation to permanently reduce Indebtedness of the Issuer 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 required accepted by the holders thereof, and no Net Proceeds in the amount of such offer will be deemed to prepay Loans pursuant to Section 2.10(c), to be retained by Bidco and/or Restricted Subsidiaries; orexist 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 Issuer), or capital expenditures or assets, in each case used or useful in a Similar Business, and/or
(iii) to make investments an investment in Bidco 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 its Subsidiariesassets that are the subject of such Asset Sale or Event of Loss; provided PROVIDED that Bidco and in the Restricted Subsidiaries will be deemed to have complied with this clause case of clauses (ii) if and to the extent that(iii) above, within the Reinvestment Period after the Asset Sale that generated a binding commitment shall be treated as a permitted application of the Net Proceeds, Bidco or such Restricted Subsidiary has entered into and not abandoned or rejected a binding agreement or letter of intent to consummate any such investment described in this clause (ii) with Proceeds from the good faith expectation that such Net Proceeds will be applied to satisfy such commitment within 180 days date of such commitment (an “Acceptable Commitment”) and, in the event any such binding commitment is later cancelled or terminated for any reason before the Net Proceeds are applied in connection therewith, Bidco or such Restricted Subsidiary enters into another Acceptable Commitment (a “Second Commitment”) within 180 days of such cancellation or termination; provided that if any Second Commitment is later cancelled canceled or terminated for any reason before such Net Proceeds are so applied, then Bidco the Issuer or such Restricted Subsidiary shall prepay enters into another binding commitment within nine months of such cancellation or termination of the Loans in accordance with Section 2.10(c).
(c) prior binding commitment. Pending the final application of any such Net Proceeds pursuant to this covenant(or Event of Loss Proceeds), the holder 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 (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 4.06(b) (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 (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 Issuer shall make an offer to all Holders of Notes and, at the option of the Issuer, to holders of any Pari Passu Indebtedness (an "ASSET SALE OFFER") to purchase the maximum principal amount of Notes (and such Pari Passu Indebtedness) that is an integral multiple of $1,000 that may apply 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 Net 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. The Issuer shall commence an Asset Sale Offer with respect to Excess Proceeds temporarily within ten Business Days after the date that Excess Proceeds exceed $55.0 million by mailing the notice required pursuant to reduce Indebtedness outstanding 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, the Issuer 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 (and such Pari Passu Indebtedness) 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 Revolving Facility or Exchange Act and any other revolving credit facility securities laws and regulations to the extent such laws or otherwise use such Net Proceeds 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 manner 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 prohibited be deemed to have breached its obligations described in this Indenture by this Agreement. Bidco or any Restricted Subsidiaryvirtue 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 case may beamount of the Excess Proceeds, may elect to invest in Bidco and its Subsidiaries prior to receiving (ii) the allocation of the Net Proceeds attributable from the Asset Sales pursuant to any given which such Asset Sale Offer is being made and (provided 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 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. 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.
(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 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 investment 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 Issuer is required to purchase, the principal amount of the Notes (and Pari Passu Indebtedness) to be purchased will be determined pro rata based on the principal amount 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; PROVIDED, HOWEVER, that no earlier Notes (or Pari Passu Indebtedness) of $2,000 or less shall be purchased in part.
(f) Notice of an Asset Sale Offer shall be mailed by first class mail, postage prepaid, at least 30 but not more than execution 60 days before the purchase date to each Holder of a definitive agreement for the relevant Asset Sale) and deem the amount so invested Notes at such Holder's registered address. If any Note is to be applied pursuant to and purchased in accordance with clause (b)(ii) above with respect part only, any notice of purchase that relates to such Asset SaleNote 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 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 (Intelsat LTD)
Asset Sales. (a) Bidco shall not, and shall not permit any of its Restricted Subsidiaries to, consummate an Asset Sale, unless:
(i) Bidco 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 at the time of contractually agreeing to such Asset Sale) of the assets sold or otherwise disposed of; and
(ii) except in the case of a Permitted Asset Swap, if the property or assets sold or otherwise disposed of have a Fair Market Value in excess of the greater of $375,000,000 375,000,00050,000,000 and 50505% of Consolidated EBITDA for the most recently ended Test Period at the time of such disposition, calculated on a Pro Forma Basis, at least 75% of the consideration therefor received by Bidco or such Restricted Subsidiary, as the case may be, is in the form of cash or Cash Equivalents; provided that the amount of:
(A) any liabilities, contingent or otherwise, of Bidco or such Restricted Subsidiary, other than liabilities that are by their terms subordinated to the Secured Obligations or that are owed to Bidco or a Restricted Subsidiary that (x) are assumed by the transferee of any such assets (or a third party in connection with such transfer) or (y) are otherwise cancelled or terminated in connection with the transaction with such transferee (other than intercompany debt owed to Bidco or its Restricted Subsidiaries) and, in each case, for which Bidco and all of its Restricted Subsidiaries have been validly released;
(B) any securities, notes or other obligations or assets received by Bidco or such Restricted Subsidiary from such transferee that are converted by Bidco or such Restricted Subsidiary into cash or Cash Equivalents (to the extent of the cash or Cash Equivalents received) within 180 days following the closing of such Asset Sale;
(C) Indebtedness of any Restricted Subsidiary that ceases to be a Restricted Subsidiary as a result of such Asset Sale (other than intercompany debt owed to Bidco or any Restricted Subsidiary), to the extent that Bidco and each other Restricted Subsidiary are released from any guarantee of payment of the principal amount of such Indebtedness in connection with such Asset Sale in accordance with the terms of this Agreement,
(D) consideration consisting of Indebtedness of a Borrower or a Guarantor (other than intercompany debt owed to Bidco or any Restricted Subsidiary and other than Subordinated Indebtedness) received after the Effective Date from Persons who are not Bidco, Holdings or any Restricted Subsidiary;
(E) any Designated Non-cash Consideration received by Bidco or such Restricted Subsidiary in such Asset Sale having an aggregate Fair Market Value taken together with all other Designated Non-cash Consideration received pursuant to this clause (E) that is at that time outstanding, not to exceed the greater of $225,000,000 and 30% of Consolidated EBITDA for the most recently ended Test Period at the time of the receipt of such Designated Non-cash Consideration, calculated on a Pro Forma Basis (with the Fair Market Value of each such item of Designated Non-cash Consideration being measured pursuant to this clause (E) at Bidco’s option, either at the time of contractually agreeing to such Asset Sale or at the time received and, in either case, without giving effect to subsequent changes in value); and
(F) any Investment, Capital Stock, assets, property or capital or other expenditure of the kind referred to in Section 6.04(b)(ii) shall be deemed to be Cash Equivalents for purposes of this provision and for no other purpose.
(b) Within the Reinvestment Period after Bidco’s or any Restricted Subsidiary’s receipt of the Net Proceeds of any Asset Sale, Bidco or such Restricted Subsidiary shall apply an amount equal to the Net Proceeds from such Asset Sale,
(i) (A) to prepay Loans or Indebtedness in accordance with Section 2.10(c) or (B) to the extent not required to prepay Loans pursuant to Section 2.10(c), to be retained by Bidco and/or Restricted Subsidiaries; or
(ii) to make investments in Bidco and its Subsidiaries; provided that Bidco and the Restricted Subsidiaries will be deemed to have complied with this clause (ii) if and to the extent that, within the Reinvestment Period after the Asset Sale that generated the Net Proceeds, Bidco or such Restricted Subsidiary has entered into and not abandoned or rejected a binding agreement or letter of intent to consummate any such investment described in this clause (ii) 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 such commitment is later cancelled or terminated for any reason before the Net Proceeds are applied in connection therewith, Bidco or such Restricted Subsidiary enters into another Acceptable Commitment (a “Second Commitment”) within 180 days of such cancellation or termination; provided that if any Second Commitment is later cancelled or terminated for any reason before such Net Proceeds are applied, then Bidco or such Restricted Subsidiary shall prepay the Loans in accordance with Section 2.10(c)...
(c) 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 the Revolving Facility or any other revolving credit facility or otherwise use such Net Proceeds in any manner not prohibited by this Agreement. Bidco or any Restricted Subsidiary, as the case may be, may elect to invest in Bidco and its Subsidiaries prior to receiving the Net Proceeds attributable to any given Asset Sale (provided that such investment shall be made no earlier than execution of a definitive agreement for the relevant Asset Sale) and deem the amount so invested to be applied pursuant to and in accordance with clause (b)(ii) above with respect to such Asset Sale.
(d) Notwithstanding anything to the contrary herein, Bidco shall not, and shall not permit any of its Restricted Subsidiaries to, sell, convey, transfer or otherwise dispose of, whether in a single transaction or a series of related transactions, any Material Restricted Assets to any Unrestricted Subsidiary.
Appears in 1 contract
Samples: Credit Agreement (Viasat Inc)
Asset Sales. (a) Bidco Holdings shall not, and shall not permit any of its Restricted Subsidiaries to, consummate an Asset Sale, Sale unless:
(i1) Bidco Holdings (or such Restricted Subsidiary, as the case may be, ) receives consideration at the time of such the Asset Sale at least equal to the Fair Market Value (as determined at the time of contractually agreeing to such Asset Sale) fair market value of the assets or Equity Interests issued or sold or otherwise disposed of;
(2) in the case of Asset Sales involving consideration in excess of $75.0 million, the fair market value is determined in good faith by Holdings’ Board of Directors; and
(ii3) except in the case of a for any Permitted Asset Swap, if the property or assets sold or otherwise disposed of have a Fair Market Value in excess of the greater of $375,000,000 and 50% of Consolidated EBITDA for the most recently ended Test Period at the time of such disposition, calculated on a Pro Forma Basis, at least 75% of the consideration therefor received in the Asset Sale by Bidco Holdings or such Restricted Subsidiary, as the case may be, Subsidiary is in the form of cash or Cash Equivalents; provided that . For purposes of clause (3) above, the amount of:
of (Ai) any liabilities, contingent liabilities (as shown on Holdings’ or otherwise, of Bidco or such the applicable Restricted Subsidiary, ’s most recent balance sheet or in the notes thereto) of Holdings or any Restricted Subsidiary (other than liabilities that are by their terms subordinated to the Secured Obligations Notes or the Guarantees) that are owed to Bidco or a Restricted Subsidiary that (x) are assumed by the transferee of any such assets (or a third party in connection with such transfer) or (y) are otherwise cancelled or terminated in connection with the transaction with such transferee (other than intercompany debt owed to Bidco or its Restricted Subsidiaries) and, in each case, for and from which Bidco Holdings and all of its Restricted Subsidiaries have been validly released;
released by all creditors in writing, (Bii) any securities, notes or other obligations or assets securities received by Bidco Holdings or such Restricted Subsidiary from such transferee that are converted by Bidco Holdings or such Restricted Subsidiary into cash or Cash Equivalents (to the extent of the cash or Cash Equivalents received) within 180 days following the closing of such Asset Sale;
Sale and (Ciii) Indebtedness of any Restricted Subsidiary that ceases to be a Restricted Subsidiary as a result of such Asset Sale (other than intercompany debt owed to Bidco or any Restricted Subsidiary), to the extent that Bidco and each other Restricted Subsidiary are released from any guarantee of payment of the principal amount of such Indebtedness in connection with such Asset Sale in accordance with the terms of this Agreement,
(D) consideration consisting of Indebtedness of a Borrower or a Guarantor (other than intercompany debt owed to Bidco or any Restricted Subsidiary and other than Subordinated Indebtedness) Designated Noncash Consideration received after the Effective Date from Persons who are not Bidco, by Holdings or any of its Restricted Subsidiary;
(E) any Designated Non-cash Consideration received by Bidco or such Restricted Subsidiary Subsidiaries in such Asset Sale having an aggregate Fair Market Value fair market value (as determined in good faith by the Board of Directors of Holdings), taken together with all other Designated Non-cash Noncash Consideration received pursuant to this clause (Eiii) that is at that time outstanding, not to exceed the greater of (x) $225,000,000 150.0 million and 30(y) 3.0% of Consolidated EBITDA for the most recently ended Test Period at the time of the receipt of such Designated Non-cash Consideration, calculated on a Pro Forma Basis Total Assets (with the Fair Market Value fair market value of each such item of Designated Non-cash Noncash Consideration being measured pursuant to this clause (E) at Bidco’s option, either at the time of contractually agreeing to such Asset Sale or at the time received and, in either case, without giving effect to subsequent changes in value); and
(F) any Investment, Capital Stock, assets, property or capital or other expenditure of the kind referred to in Section 6.04(b)(ii) shall be deemed to be Cash Equivalents cash for purposes of this provision Section 4.13(a)(3) and for no other purpose.
(b) Within 365 days after the Reinvestment Period after Bidco’s or any Restricted Subsidiary’s receipt of the any Net Proceeds of any from an Asset Sale, Bidco Holdings may apply those Net Proceeds at its option:
(1) to permanently reduce Obligations under Secured Indebtedness (and to correspondingly reduce commitments with respect thereto) or such Indebtedness of a Restricted Subsidiary shall apply that is not a Guarantor, in each case other than Indebtedness owed to Holdings or a Subsidiary 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 equal 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; and/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 such an Asset Sale,
(i) (A) to prepay Loans Sale not applied or Indebtedness invested in accordance with Section 2.10(c) or (B) to the extent not required to prepay Loans pursuant to Section 2.10(c), to be retained by Bidco and/or Restricted Subsidiaries; or
(ii) to make investments in Bidco and its Subsidiaries; provided that Bidco and preceding paragraph within 365 days from the Restricted Subsidiaries will be deemed to have complied with this clause (ii) if and to date of the extent that, within the Reinvestment Period after the Asset Sale that generated the Net Proceeds, Bidco or such Restricted Subsidiary has entered into and not abandoned or rejected a binding agreement or letter receipt of intent to consummate any such investment described in this clause (ii) with the good faith expectation that such Net Proceeds will be applied to satisfy shall constitute “Excess Proceeds,” provided that if during such commitment within 180 days of such commitment (an “Acceptable Commitment”) and, in the event any such commitment is later cancelled 365-day period Holdings or terminated for any reason before the Net Proceeds are applied in connection therewith, Bidco or such a Restricted Subsidiary enters into another Acceptable Commitment 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 “Second Commitment”) within period not to exceed 180 days of such cancellation or termination; provided that if any Second Commitment is later cancelled or terminated for any reason before until such Net Proceeds are applied, then Bidco or such Restricted Subsidiary shall prepay the Loans required to be applied in accordance with Section 2.10(csuch agreement (or, if earlier, until termination of such agreement).
(c) When the aggregate amount of Excess Proceeds exceeds $75.0 million, Holdings, or the applicable Restricted Subsidiary (including the Company), 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 Indenture with respect to offers to purchase with the proceeds of sales of assets to purchase, on a pro rata basis, the maximum principal amount of Notes and such other pari passu Indebtedness that may be purchased out of the Excess Proceeds (the “Asset Sale Offer Amount”). The offer price in any Asset Sale Offer shall be equal to 100% of the principal amount thereof, plus accrued and unpaid interest and Additional Interest, if any, to the date of purchase, and shall be payable in cash.
(d) Pending the final application of any Net Proceeds pursuant to this covenantProceeds, Holdings, or the holder of such Net Proceeds applicable Restricted Subsidiary (including the Company), may apply such Net Proceeds temporarily to reduce Indebtedness outstanding under the Revolving Facility or any other revolving credit facility borrowings or otherwise use such invest the Net Proceeds in any manner that is not prohibited by this Agreement. Bidco Indenture.
(e) If any Excess Proceeds remain after consummation of an Asset Sale Offer, Holdings, or any the applicable Restricted Subsidiary, as Subsidiary (including the case may beCompany), may elect 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 Trustee shall select the Notes to invest be purchased on a pro rata basis. Upon completion of each Asset Sale Offer, the amount of Excess Proceeds shall be reset at zero.
(f) Upon the commencement of an Asset Sale Offer, Holdings, or the applicable Restricted Subsidiary (including the Company), shall send, by first class mail, a notice to the Trustee and to each Holder at its registered address. The notice shall contain all instructions and materials necessary to enable such Holder to tender Notes pursuant to the Asset Sale Offer. Any Asset Sale Offer shall be made to all Holders. The notice, which shall govern the terms of the Asset Sale Offer, shall state:
(1) that the Asset Sale Offer is being made pursuant to this Section 4 13;
(2) the Asset Sale Offer Amount, the Asset Sale Payment and the date on which Notes tendered and accepted for payment shall be purchased, which date shall be at least 30 days and no later than 60 days from the date such notice is mailed (the “Asset Sale Payment Date”);
(3) that any Notes not tendered or accepted for payment shall continue to accrue interest;
(4) that, unless the Issuers default in Bidco and its Subsidiaries making such payment, any Notes accepted for payment pursuant to the Asset Sale Offer shall cease to accrue interest after the Asset Sale Payment Date;
(5) that Holders electing to have a Note purchased pursuant to any Asset Sale Offer shall be required to surrender the Note, with the form entitled “Option of Holder To Elect Purchase” on the reverse of the Notes completed, or transfer such Note by book-entry transfer, to the Paying Agent at the address specified in the notice at least three Business Days before the Asset Sale Payment Date;
(6) that Holders shall be entitled to withdraw their election if the Paying Agent receives, not later than the second Business Day prior to receiving the Net Proceeds attributable to any given Asset Sale Payment Date, a notice 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 such Holder’s election to have such Note purchased;
(7) that, if the aggregate principal amount of Notes surrendered by Holders exceeds the Asset Sale Offer Amount, the Issuers shall select the Notes to be purchased on a pro rata basis (with such adjustments as may be deemed appropriate by the Issuers so that only Notes in denominations of $2,000 or integral multiples of $1,000 in excess thereof shall be purchased); and
(8) that Holders whose Notes were purchased only in part shall be issued new Notes equal in principal amount to the unpurchased portion of the Notes surrendered (or transferred by book-entry transfer); provided that such investment Notes shall be made no earlier than execution in denominations of a definitive agreement $2,000 or integral multiples $1,000 in excess thereof.
(g) On the Asset Sale Payment Date, Holdings, or the applicable Restricted Subsidiary of Holdings (including the Issuers), shall, to the extent lawful: (1) accept for payment all Notes or portions thereof properly tendered pursuant to the relevant Asset SaleSale Offer; (2) deposit with the Paying Agent U.S. Legal Tender or U.S. Government Securities sufficient to pay the Asset Sale Payment in respect of all Notes or portions thereof so tendered; and deem the amount so invested (3) deliver or cause to be applied delivered to the Trustee the Notes so accepted together with an Officers’ Certificate stating the aggregate principal amount of Notes or portions thereof being repurchased by the Issuers. The Issuers shall publicly announce the results of the Asset Sale Offer on the Asset Sale Payment Date.
(h) The Paying Agent shall promptly mail to each Holder so tendered the Asset Sale Payment for such Notes, and the Trustee shall promptly authenticate pursuant to an Issuer Order and mail (or cause to be transferred by book entry) to each Holder a new Note equal in accordance principal amount to any unrepurchased portion of the Notes surrendered, if any; provided that each such new Note shall be in a principal amount of $2,000 or an integral multiple of $1,000 in excess thereof. However, if the Asset Sale Payment Date is on or after an interest Record Date and on or before the related Interest Payment Date, any accrued and unpaid interest 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.
(i) Holdings, or the applicable Restricted Subsidiary (including the Company), shall comply with clause 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 Indenture, Holdings, or the applicable Restricted Subsidiary (b)(ii) above including the Issuers), shall comply with respect the applicable securities laws and regulations and shall not be deemed to have breached its obligations under this Section 4.13 by virtue of such Asset Saleconflict.
Appears in 1 contract
Samples: Indenture (Warner Chilcott PLC)
Asset Sales. (a) Bidco shall The Issuer will not, and shall will not permit any of its Restricted Subsidiaries Subsidiary to, consummate an Asset Sale, Sale unless:
(i1) Bidco the Issuer (or or such Restricted Subsidiary, as the case may be, ) receives consideration at the time of such the Asset Sale at least equal to the Fair Market Value fair market value (as determined at in good faith by the time of contractually agreeing to such Asset SaleIssuer) of the assets or Equity Interests issued or sold or otherwise disposed of; and
(ii2) except in the case of a Permitted Asset Swap, if the property or assets sold or otherwise disposed of have a Fair Market Value in excess of the greater of $375,000,000 and 50% of Consolidated EBITDA for the most recently ended Test Period at the time of such disposition, calculated on a Pro Forma Basis, at least 75% of the consideration therefor received in the Asset Sale by Bidco the Issuer, or such Restricted Subsidiary, as the case may be, Subsidiary is in the form of cash or Cash Equivalents; provided that .
(b) For purposes of clause (2) above and for no other purpose, the amount of:
of (Ai) any liabilitiesliabilities (as shown on the Parent Guarantor’s, contingent or otherwise, of Bidco the Issuer’s or such Restricted Subsidiary’s most recent balance sheet or in the notes thereto or if incurred or accrued subsequent to the date of such balance sheet, such liabilities that would have been shown on the Parent Guarantor’s, the Issuer’s or such Restricted Subsidiary’s most recent internal balance sheet or in the notes thereto if such incurrence or accrual had taken place on or prior to the date of such balance sheet) of the Issuer or any Restricted Subsidiary (other than liabilities that are by their terms subordinated to the Secured Obligations Notes or the Guarantees) that are owed to Bidco or a Restricted Subsidiary that (x) are assumed by the transferee of any such assets assets, (or a third party in connection with such transfer) or (y) are otherwise cancelled or terminated extinguished in connection with the transaction with transactions relating to such transferee Asset Sale) (other than intercompany debt owed to Bidco or its Restricted Subsidiaries) and, in each case, for which Bidco and all of its Restricted Subsidiaries have been validly released;
(Bii) any securities, notes or other obligations or assets securities received by Bidco the Issuer or such Restricted Subsidiary from such transferee that are converted by Bidco the Issuer or such Restricted Subsidiary into cash or Cash Equivalents (to the extent of the cash or Cash Equivalents received) within 180 days following the closing of such Asset Sale;
, (Ciii) Indebtedness the fair market value (as determined in good faith by the Issuer) of (A) any Restricted Subsidiary that ceases to be a Restricted Subsidiary as a result of such Asset Sale assets (other than intercompany debt owed to Bidco or any Restricted Subsidiary), to securities) received by the extent that Bidco and each other Restricted Subsidiary are released from any guarantee of payment of the principal amount of such Indebtedness in connection with such Asset Sale in accordance with the terms of this Agreement,
(D) consideration consisting of Indebtedness of a Borrower or a Guarantor (other than intercompany debt owed to Bidco Issuer or any Restricted Subsidiary and other than Subordinated Indebtednessto be used by it in a Permitted Business, (B) received after Equity Interests in a Person that is a Restricted Subsidiary or in a Person engaged in a Permitted Business that shall become a Restricted Subsidiary immediately upon the Effective Date from Persons who are not Bidco, Holdings acquisition of such Person by the Issuer or any Restricted Subsidiary;
Subsidiary or (EC) a combination of (A) and (B), and (iv) any Designated Non-cash Consideration received by Bidco the Issuer or such any Restricted Subsidiary in such Asset Sale having an aggregate Fair Market Value fair market value (as determined in good faith by the Issuer), taken together with all other Designated Non-cash Consideration received pursuant to this clause (Eiv) that is at that time outstanding, not to exceed the greater of $225,000,000 and 305.0% of Consolidated EBITDA for the most recently ended Test Period Total Assets at the time of the receipt of such Designated Non-cash Consideration, calculated on a Pro Forma Basis Consideration (with the Fair Market Value fair market value of each such item of Designated Non-cash Consideration being measured pursuant to this clause (E) at Bidco’s option, either at the time of contractually agreeing to such Asset Sale or at the time received and, in either case, without giving effect to subsequent changes in value); and
(F) any Investment, Capital Stock, assets, property or capital or other expenditure of the kind referred to in Section 6.04(b)(ii) shall be deemed to be Cash Equivalents for purposes of this provision and for no other purposecash.
(bc) Within 450 days after the Reinvestment Period after Bidco’s receipt of any Net Proceeds from an Asset Sale, the Issuer (or any Restricted Subsidiary’s receipt of the Net Proceeds of any Asset Sale, Bidco or such Restricted Subsidiary shall ) may apply an amount equal to such Net Proceeds at its option to:
(1) permanently reduce (including, without limitation, by way of redemption, purchase, defeasing or other discharge) Obligations under Indebtedness of the Issuer or a Guarantor that ranks pari passu with the Notes (and if the Obligations relate to revolving credit Indebtedness, to correspondingly reduce commitments with respect thereto) or Indebtedness of a Restricted Subsidiary that is not a Guarantor, in each case other than Indebtedness owed to the Issuer or a Subsidiary of the Issuer;
(2) 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 a Restricted Subsidiary owning an amount of the Capital Stock of such business such that it constitutes a Restricted Subsidiary, (B) capital expenditures or (C) other assets, in each of (A), (B) and (C), used or useful in a Permitted Business; and/or
(3) make an investment in (A) any one or more businesses; provided that such investment in any business is in the form of the acquisition of Capital Stock and results in the Issuer or a Restricted Subsidiary owning an amount of the Capital Stock of such business such that it constitutes a Restricted Subsidiary, (B) properties or (C) assets that, in each of (A), (B) and (C), replace the businesses, properties and assets that are the subject of such Asset Sale.
(d) Any Net Proceeds from such an Asset Sale,
(i) (A) to prepay Loans Sale not applied or Indebtedness invested in accordance with Section 2.10(cthe preceding paragraph within 450 days from the date of the receipt of such Net Proceeds shall constitute “Excess Proceeds,” provided that if during such 450-day period the Issuer 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 (B3) of the immediately preceding paragraph after such 450th day, such 450-day period will be extended with respect to the extent amount of Net Proceeds so committed for a period not required to prepay Loans pursuant to Section 2.10(c), to be retained by Bidco and/or Restricted Subsidiaries; or
(ii) to make investments in Bidco and its Subsidiaries; provided that Bidco and the Restricted Subsidiaries will be deemed to have complied with this clause (ii) if and to the extent that, within the Reinvestment Period after the Asset Sale that generated the Net Proceeds, Bidco or such Restricted Subsidiary has entered into and not abandoned or rejected a binding agreement or letter of intent to consummate any such investment described in this clause (ii) with the good faith expectation that exceed 180 days until such Net Proceeds will are required to be applied to satisfy in accordance with such commitment within 180 days of such commitment agreement (an “Acceptable Commitment”) and, in the event any such commitment Acceptable Commitment is later cancelled canceled or terminated for any reason before the Net Proceeds are applied in connection therewith, Bidco the Issuer or such Restricted Subsidiary enters into another Acceptable Commitment (a “Second Commitment”) within 180 days of such cancellation cancelation or termination; provided provided, further, that if any Second Commitment is later cancelled canceled or terminated for any reason before such Net Proceeds are applied, then Bidco such Net Proceeds shall constitute Excess Proceeds.
(e) When the aggregate amount of Excess Proceeds exceeds $50.0 million, the Issuer or such the applicable Restricted Subsidiary shall prepay will make an Asset Sale Offer to all Holders and, at the Loans option of the Issuer, Indebtedness that ranks pari passu with the Notes and contains provisions similar to those set forth in this Indenture with respect to mandatory prepayments, redemptions or offers to purchase with the proceeds of sales of assets in accordance with Section 2.10(c)3.3 hereof, to purchase, on a pro rata basis, the maximum principal amount of Notes and such other pari passu 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. The offer price in any Asset Sale Offer will be equal to 100% of principal amount plus accrued and unpaid interest to, but excluding the date of purchase, subject to the rights of Holders on the relevant Record Date to receive interest due on the relevant Interest Payment Date, and will be payable in cash. The Issuer 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 in accordance with the requirements of Section 3.3 hereof.
(cf) Pending the final application of any Net Proceeds pursuant to this covenantProceeds, the holder of Issuer or such Net Proceeds Restricted Subsidiary may apply such Net Proceeds temporarily to reduce Indebtedness outstanding under the Revolving Facility or any other revolving credit facility borrowings or otherwise use such invest the Net Proceeds in any manner that is not prohibited by this Agreement. Bidco or Indenture.
(g) If any Restricted Subsidiary, as the case may be, may elect to invest in Bidco and its Subsidiaries prior to receiving the Net Excess Proceeds attributable to any given remain after consummation of an Asset Sale (provided that Offer, the Issuer or the applicable 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 investment shall be made no earlier than execution of a definitive agreement for the relevant Asset Sale) and deem Sale Offer exceeds the amount so invested of Excess Proceeds, the Trustee will select the Notes to be applied pursuant to and in accordance with clause (b)(ii) above with respect to purchased on a pro rata basis based on the accreted value or principal amount of the Notes or such Indebtedness tendered. Upon completion of each Asset Sale Offer, the amount of Excess Proceeds will be reset at zero. 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 consummation of such Asset Sale Offer, any Net Proceeds not required to be used to purchase Notes shall not be deemed Excess Proceeds.
(h) The Issuer will comply with the requirements of Rule 14e-1 under the Exchange Act and any other securities laws and regulations thereunder to the extent those laws and regulations are applicable in connection with each repurchase of Notes pursuant to an Asset Sale Offer. To the extent that the provisions of any securities laws or regulations conflict with the provisions of this Section 4.9 or Section 3.3 hereof, the Issuer will comply with the applicable securities laws and regulations and will not be deemed to have breached its obligations under this Section 4.9 or Section 3.3 hereof by virtue of such conflict.
Appears in 1 contract
Samples: First Supplemental Indenture (Rockwood Holdings, Inc.)
Asset Sales. (a) Bidco shall The Company will not, and shall will not permit any of its Restricted Subsidiaries to, directly or indirectly, consummate an Asset Sale, unless:
Sale unless (i) Bidco at least 75% of the consideration from such Asset Sale is received in cash or Cash Equivalents, and (ii) the Company or such Restricted Subsidiary, as the case may be, Subsidiary receives consideration at the time of such Asset Sale at least equal to the Fair Market Value of the shares or assets subject to such Asset Sale (as determined at by the time Board of contractually agreeing to such Directors and evidenced in a Board Resolution).
(b) Within 360 days of the Asset Sale, the Company may at its option apply the Net Cash Proceeds (1) of to repay Indebtedness under the assets sold Credit Agreement or otherwise disposed of; and
(ii) except in the case of a Permitted Asset Swap, if the property or assets sold or otherwise disposed of have a Fair Market Value in excess of the greater of $375,000,000 and 50% of Consolidated EBITDA for the most recently ended Test Period at the time of such disposition, calculated on a Pro Forma Basis, at least 75% of the consideration therefor received by Bidco or such Restricted Subsidiary, as the case may be, is in the form of cash or Cash Equivalents; provided that the amount of:
(A) any liabilities, contingent or otherwise, of Bidco or such Restricted Subsidiary, other Senior Secured Debt other than liabilities that are by their terms subordinated to the Secured Obligations or that are owed to Bidco or a Restricted Subsidiary that Notes (x) are assumed by the transferee of any such assets (or a third party in connection with such transfer) or (y) are otherwise cancelled or terminated in connection with the transaction with such transferee (other than intercompany debt owed to Bidco or its Restricted Subsidiaries) and, in each case, for which Bidco and all effect a corresponding permanent reduction in the availability under such Credit Agreement (in the case of its Restricted Subsidiaries have been validly released;
(Brepayment of revolving Indebtedness) any securities, notes or other obligations or assets received by Bidco or such Restricted Subsidiary from such transferee that are converted by Bidco or such Restricted Subsidiary into cash or Cash Equivalents (to the extent of the cash or Cash Equivalents received) within 180 days following the closing of such Asset Sale;
(C) Indebtedness of any Restricted Subsidiary that ceases to be a Restricted Subsidiary as a result of such Asset Sale (other than intercompany debt owed to Bidco or any Restricted Subsidiary), to the extent that Bidco and each other Restricted Subsidiary are released from any guarantee of payment of the principal outstanding amount of such Indebtedness Senior Secured Debt) or to repay unsecured Senior Debt that has provisions requiring the Company to make an offer to purchase upon an Asset Sale; provided, however, that if the Company repays such unsecured Senior Debt it must make a ratable offer to all Holders of Notes as provided in connection paragraph (c) below; (2) to acquire properties and assets that (as determined by the Board of Directors) replace the properties and assets that were the subject of the Asset Sale; or (3) to acquire properties and assets that will be used in the businesses of the Company or its Subsidiaries existing on the Issue Date or in businesses reasonably related or complementary thereto. The amount of such Net Cash Proceeds not applied or invested as set forth in this paragraph shall constitute “Excess Proceeds.”
(c) When the aggregate amount of Excess Proceeds exceeds $15,000,000, the Company will apply the Excess Proceeds to the repayment of the Notes and any other unsecured Senior Debt outstanding with provisions requiring the Company to make an offer to purchase or to purchase or redeem such unsecured Senior Debt with the proceeds from any Asset Sale as follows: (A) the Company will make an offer to purchase (an “Offer”) from all Holders of the Notes in accordance with the terms of procedures set forth in this Agreement,
Indenture in the maximum principal amount (D) consideration consisting of Indebtedness of expressed as a Borrower or a Guarantor (other than intercompany debt owed to Bidco or any Restricted Subsidiary and other than Subordinated Indebtedness) received after the Effective Date from Persons who are not Bidco, Holdings or any Restricted Subsidiary;
(E) any Designated Non-cash Consideration received by Bidco or such Restricted Subsidiary in such Asset Sale having an aggregate Fair Market Value taken together with all other Designated Non-cash Consideration received pursuant to this clause (E) that is at that time outstanding, not to exceed the greater multiple of $225,000,000 and 30% 1,000) of Consolidated EBITDA for the most recently ended Test Period at the time Notes that may be purchased out of the receipt of such Designated Non-cash Consideration, calculated on a Pro Forma Basis (with the Fair Market Value of each such item of Designated Non-cash Consideration being measured pursuant to this clause (E) at Bidco’s option, either at the time of contractually agreeing to such Asset Sale or at the time received and, in either case, without giving effect to subsequent changes in value); and
(F) any Investment, Capital Stock, assets, property or capital or other expenditure of the kind referred to in Section 6.04(b)(ii) shall be deemed to be Cash Equivalents for purposes of this provision and for no other purpose.
(b) Within the Reinvestment Period after Bidco’s or any Restricted Subsidiary’s receipt of the Net Proceeds of any Asset Sale, Bidco or such Restricted Subsidiary shall apply an amount (the “Notes Amount”) equal to the Net product of such Excess Proceeds multiplied by a fraction, the numerator of which is the outstanding principal amount of the Notes, and the denominator of which is the sum of the outstanding principal amount of the Notes and such unsecured Senior Debt outstanding with provisions requiring the Company to make an offer to purchase or to purchase or redeem such unsecured Senior Debt with the proceeds from any Asset Sale (subject to proration in the event such Asset Sale,
amount is less than the aggregate Offered Price (ias defined herein) (A) to prepay Loans or Indebtedness in accordance with Section 2.10(c) or of all Notes tendered), and (B) to the extent not required to prepay Loans pursuant to Section 2.10(c), to be retained by Bidco and/or Restricted Subsidiaries; or
(ii) such unsecured Senior Debt outstanding with provisions requiring the Company to make investments an offer to purchase or to purchase or redeem such unsecured Senior Debt with the proceeds from any Asset Sale to permanently reduce the principal amount of such unsecured Senior Debt, the Company will make an offer to purchase or otherwise repurchase or redeem unsecured Senior Debt (a “Senior Debt Offer”) in Bidco and its Subsidiariesan amount (the “Senior Debt Amount”) equal to the excess of the Excess Proceeds over the Notes Amount; provided that Bidco and in no event will the Restricted Subsidiaries Company be required to make a Senior Debt Offer in a Senior Debt Amount exceeding the principal amount of such unsecured Senior Debt plus the amount of any premium required to be paid to repurchase such unsecured Senior Debt. The offer price for the Notes will be deemed payable in cash in an amount equal to have complied with this clause (ii) 100% of the principal amount of the Notes plus accrued and unpaid interest, if and any, to the extent that, within date (the Reinvestment Period after the Asset Sale that generated the Net Proceeds, Bidco or such Restricted Subsidiary has entered into and not abandoned or rejected a binding agreement or letter of intent to consummate any such investment described in this clause (ii) with the good faith expectation that such Net Proceeds will be applied to satisfy such commitment within 180 days of such commitment (an “Acceptable CommitmentOffer Date”) andsuch Offer is consummated (the “Offered Price”), in the event any such commitment is later cancelled or terminated for any reason before the Net Proceeds are applied in connection therewith, Bidco or such Restricted Subsidiary enters into another Acceptable Commitment (a “Second Commitment”) within 180 days of such cancellation or termination; provided that if any Second Commitment is later cancelled or terminated for any reason before such Net Proceeds are applied, then Bidco or such Restricted Subsidiary shall prepay the Loans in accordance with Section 2.10(c)the procedures set forth in this Indenture. To the extent that the aggregate Offered Price of the Notes tendered pursuant to the Offer is less than the Notes Amount relating thereto or the aggregate amount of unsecured Senior Debt that is purchased in a Senior Debt Offer is less than the Senior Debt Amount, the Company may use any remaining Excess Proceeds for any purpose not otherwise prohibited by this Indenture. If the aggregate principal amount of Notes and such unsecured Senior Debt 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 the completion of the purchase of all the Notes tendered pursuant to an Offer and the completion of Senior Debt Offer, the amount of Excess Proceeds, if any, shall be reset at zero.
(d) If the Company becomes obligated to make an Offer pursuant to clause (c) Pending the final application of any Net Proceeds pursuant to this covenantabove, the holder Notes and the unsecured Senior Debt that has provisions requiring the Company to make an offer to purchase upon an Asset Sale shall be purchased by the Company, at the option of the holders thereof, in whole or in part in integral multiples of $1,000, on a date that is not earlier than 30 days and not later than 60 days from the date the notice of such Net Proceeds Offer is given to holders, or such later date as may apply such Net Proceeds temporarily be necessary for the Company to reduce Indebtedness outstanding comply with the requirements under the Revolving Facility or Exchange Act.
(e) The Company will comply with the applicable tender offer rules, including Rule 14e-l under the Exchange Act, and any other revolving credit facility applicable securities laws or otherwise use such Net Proceeds regulations in any manner not prohibited by this Agreement. Bidco or any Restricted Subsidiary, as the case may be, may elect to invest in Bidco and its Subsidiaries prior to receiving the Net Proceeds attributable to any given Asset Sale (provided that such investment shall be made no earlier than execution of a definitive agreement for the relevant Asset Sale) and deem the amount so invested to be applied pursuant to and in accordance connection with clause (b)(ii) above with respect to such Asset Salean Offer.
Appears in 1 contract
Samples: Indenture (Bally Franchise RSC Inc)
Asset Sales. (a) Bidco 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:
unless (ix) Bidco the Company, or such its Restricted SubsidiarySubsidiaries, as the case may be, receives consideration at the time of such Asset Sale at least equal to the Fair Market Value fair market value (as determined at in good faith by the time of contractually agreeing to such Asset SaleCompany) of the assets sold or otherwise disposed of; and
of and (iiy) except in the case of a Permitted Asset Swap, if the property or assets sold or otherwise disposed of have a Fair Market Value in excess of the greater of $375,000,000 and 50% of Consolidated EBITDA for the most recently ended Test Period at the time of such disposition, calculated on a Pro Forma Basis, at least 75% of the consideration therefor received by Bidco the Company, or such Restricted Subsidiary, as the case may be, is in the form of cash or Cash Equivalents; provided PROVIDED that the amount of:
of (A) any liabilities, contingent or otherwise, of Bidco liabilities (as shown on the Company's or such Restricted Subsidiary, 's most recent balance sheet or in the notes thereto) of the Company or any Restricted Subsidiary (other than liabilities that are by their terms subordinated to the Secured Obligations or Notes), that are owed to Bidco or a Restricted Subsidiary that (x) are assumed by the transferee of any such assets (or a third party in connection with such transfer) or (y) are otherwise cancelled or terminated in connection with the transaction with such transferee (other than intercompany debt owed to Bidco or its Restricted Subsidiaries) andassets, in each case, for which Bidco and all of its Restricted Subsidiaries have been validly released;
(B) any securities, notes or other obligations or assets received by Bidco the Company or such Restricted Subsidiary from such transferee that are converted by Bidco the Company or such Restricted Subsidiary into cash or Cash Equivalents (to the extent of the cash or Cash Equivalents received) within 180 days following the closing of such Asset Sale;
Sale and (C) Indebtedness of any Restricted Subsidiary that ceases to be a Restricted Subsidiary as a result of such Asset Sale (other than intercompany debt owed to Bidco or any Restricted Subsidiary), to the extent that Bidco and each other Restricted Subsidiary are released from any guarantee of payment of the principal amount of such Indebtedness in connection with such Asset Sale in accordance with the terms of this Agreement,
(D) consideration consisting of Indebtedness of a Borrower or a Guarantor (other than intercompany debt owed to Bidco or any Restricted Subsidiary and other than Subordinated Indebtedness) received after the Effective Date from Persons who are not Bidco, Holdings or any Restricted Subsidiary;
(E) any Designated Non-cash Noncash Consideration received by Bidco the Company or such any of its Restricted Subsidiary Subsidiaries in such Asset Sale having an aggregate Fair Market Value fair market value, taken together with all other Designated Non-cash Noncash Consideration received pursuant to this clause (EC) that is at that time outstanding, not to exceed the greater of (x) $225,000,000 and 3035.0 million or (y) 15% of Consolidated EBITDA for the most recently ended Test Period Total Assets at the time of the receipt of such Designated Non-cash Consideration, calculated on a Pro Forma Basis Noncash Consideration (with the Fair Market Value fair market value of each such item of Designated Non-cash Noncash Consideration being measured pursuant to this clause (E) at Bidco’s option, either at the time of contractually agreeing to such Asset Sale or at the time received and, in either case, and without giving effect to subsequent changes in value); and
(F) any Investment, Capital Stock, assets, property or capital or other expenditure of the kind referred to in Section 6.04(b)(ii) shall be deemed to be Cash Equivalents cash for purposes of this provision and for no other purpose.
(b) Within 365 days after the Reinvestment Period after Bidco’s Company's or any Restricted Subsidiary’s 's receipt of the Net Proceeds of any Asset Sale, Bidco the Company or such Restricted Subsidiary shall may apply an amount equal to the Net Proceeds from such Asset Sale,
, at its option, (i) to permanently reduce Obligations under the Credit Facility (Aand to correspondingly reduce commitments with respect thereto) to prepay Loans 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 Section 2.10(c) or (Bthe procedures set forth below for an Asset Sale Offer) to all Holders to purchase at 100% of the extent not required to prepay Loans pursuant to Section 2.10(cprincipal amount thereof the amount of Notes that would otherwise be prepaid), to be retained by Bidco and/or Restricted Subsidiaries; or
(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 investments an investment in Bidco properties or assets that replace the properties and its Subsidiaries; provided assets that Bidco and are the Restricted Subsidiaries will be deemed to have complied with this clause (ii) if and to the extent that, within the Reinvestment Period after the Asset Sale that generated the Net Proceeds, Bidco or such Restricted Subsidiary has entered into and not abandoned or rejected a binding agreement or letter of intent to consummate any such investment described in this clause (ii) with the good faith expectation that such Net Proceeds will be applied to satisfy such commitment within 180 days subject of such commitment (an “Acceptable Commitment”) and, in the event any such commitment is later cancelled or terminated for any reason before the Net Proceeds are applied in connection therewith, Bidco or such Restricted Subsidiary enters into another Acceptable Commitment (a “Second Commitment”) within 180 days of such cancellation or termination; provided that if any Second Commitment is later cancelled or terminated for any reason before such Net Proceeds are applied, then Bidco or such Restricted Subsidiary shall prepay the Loans in accordance with Section 2.10(c).
(c) Asset Sale. Pending the final application of any such Net Proceeds pursuant to this covenantProceeds, the holder of Company or such Net Proceeds Restricted Subsidiary may apply such Net Proceeds temporarily to reduce Indebtedness outstanding under the Revolving Facility or any other a revolving credit facility facility, if any, or otherwise use invest such Net Proceeds in any manner not prohibited by this Agreement. Bidco Cash Equivalents or any Restricted Subsidiary, as the case may be, may elect to invest in Bidco and its Subsidiaries prior to receiving the Net Proceeds attributable to any given Asset Sale (provided that such investment shall be made no earlier than execution of a definitive agreement for the relevant Asset Sale) and deem the amount so invested to be applied pursuant to and in accordance with clause (b)(ii) above with respect to such Asset Sale.Investment Grade 113
Appears in 1 contract
Samples: Indenture (Boyds Collection LTD)
Asset Sales. (a) Bidco Holdings shall not, and shall not permit any of its Restricted Subsidiaries Subsidiary to, consummate cause or make an Asset Sale, unless:
unless (ix) Bidco Holdings or such any of its Restricted SubsidiarySubsidiaries, as the case may be, receives consideration at the time of such Asset Sale at least equal to the Fair Market Value (if the consideration for such Asset Sale is less than or equal to $25.0 million, as determined at in good faith by Holdings or if the time of contractually agreeing to consideration for such Asset SaleSale exceeds $25.0 million, as determined by an Independent Financial Advisor) of the assets sold or otherwise disposed of; and
of and (iiy) except in the case of a Permitted Asset Swap, if the property or assets sold or otherwise disposed of have a Fair Market Value in excess of the greater of $375,000,000 and 50% of Consolidated EBITDA for the most recently ended Test Period at the time of such disposition, calculated on a Pro Forma Basis, at least 75% of the consideration therefor received by Bidco Holdings or such Restricted Subsidiary, as the case may be, is in the form of cash or Cash Equivalents; provided that the amount of:
(Ai) any liabilities, contingent liabilities (as shown on Holdings’ or otherwise, of Bidco or such a Restricted Subsidiary, ’s most recent balance sheet or in the notes thereto) of Holdings or any Restricted Subsidiary (other than liabilities that are by their terms subordinated to the Secured Obligations Notes or any Subsidiary Guarantee) that are owed to Bidco or a Restricted Subsidiary that (x) are assumed by the transferee of any such assets (or a third party in connection with such transfer) or (y) that are otherwise cancelled or terminated in connection with the transaction with such transferee (other than intercompany debt owed to Bidco or its Restricted Subsidiaries) and, in each case, for which Bidco and all of its Restricted Subsidiaries have been validly released;transferee,
(Bii) any securities, notes or other obligations or other securities or assets received by Bidco Holdings or such Restricted Subsidiary from such transferee that are converted by Bidco Holdings or such Restricted Subsidiary into cash or Cash Equivalents within 180 days of the receipt thereof (to the extent of the cash or Cash Equivalents received) within 180 days following the closing of such Asset Sale;
(C) Indebtedness of any Restricted Subsidiary that ceases to be a Restricted Subsidiary as a result of such Asset Sale (other than intercompany debt owed to Bidco or any Restricted Subsidiary), to the extent that Bidco and each other Restricted Subsidiary are released from any guarantee of payment of the principal amount of such Indebtedness in connection with such Asset Sale in accordance with the terms of this Agreement,
(Diii) consideration consisting with respect to any Asset Sale of Indebtedness of a Borrower or a Guarantor (other than intercompany debt owed to Bidco or any Restricted Subsidiary Oil and other than Subordinated Indebtedness) received after the Effective Date from Persons who are not Bidco, Gas Properties by Holdings or any Restricted Subsidiary;, the costs and expenses related to the exploration, development, completion or production of such Oil and Gas Properties and activities related thereto agreed to be assumed by the transferee (or an Affiliate thereof),
(Eiv) [reserved],
(v) [reserved], and
(vi) any Designated Non-cash Consideration received by Bidco Holdings or such any Restricted Subsidiary in such Asset Sale having an aggregate Fair Market Value (as determined in good faith by Holdings), taken together with all other Designated Non-cash Consideration received pursuant to this clause (Evi) that is at that time outstanding, not to exceed the greater of $225,000,000 and 30% of Consolidated EBITDA for the most recently ended Test Period 25.0 million at the time of the receipt of such Designated Non-cash Consideration, calculated on a Pro Forma Basis Consideration (with the Fair Market Value of each such item of Designated Non-cash Consideration being measured pursuant to this clause (E) at Bidco’s option, either at the time of contractually agreeing to such Asset Sale or at the time received and, in either case, and without giving effect to subsequent changes in value); and
(F) any Investment, Capital Stock, assets, property or capital or other expenditure of the kind referred to in Section 6.04(b)(ii) shall be deemed to be Cash Equivalents for the purposes of this provision and for no other purposeSection 4.06.
(b) Within the Reinvestment Period after Bidco365 days of an Issuer’s or any Restricted Subsidiary’s receipt of the Net Proceeds of any Asset Sale, Bidco the Issuers or such Restricted Subsidiary shall may apply an amount equal to 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 prepay Loans or Indebtedness in accordance with Section 2.10(c) the Notes Obligations or (B) to 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 extent avoidance of doubt will not required to prepay Loans constitute Indebtedness under clauses (v), (w), (x) or (y), the Issuers will equally and ratably reduce Obligations under the Notes pursuant to Section 2.10(c3.01, 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 be retained by Bidco and/or Restricted Subsidiaries; orHoldings or an Affiliate of Holdings;
(ii) to make investments an Investment in Bidco 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 its Subsidiariesassets that are the subject of such Asset Sale; provided that Bidco 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 Restricted Subsidiaries time period set forth in the first sentence of this Section 4.06(b) (it being understood that any portion of such Net Proceeds used to make an offer to purchase 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 have complied with this clause 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 (iiand, at the option of the Issuers, to holders of any Other Second-Lien Obligations) if and to the extent that, within the Reinvestment Period after the Asset Sale that generated the Net Proceeds, Bidco or such Restricted Subsidiary has entered into and not abandoned or rejected a binding agreement or letter of intent to consummate any such investment described in this clause (ii) with the good faith expectation that such Net Proceeds will be applied to satisfy such commitment within 180 days of such commitment (an “Acceptable CommitmentAsset Sale Offer”) andto 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 any such commitment is later cancelled or terminated for any reason before the Net Proceeds are applied in connection therewith, Bidco Notes or such Restricted Subsidiary enters into another Acceptable Commitment 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 (a “Second Commitment”) within 180 days or, in respect of such cancellation or termination; Other Second-Lien Obligations, such lesser price, if any, as may be provided that if any Second Commitment is later cancelled or terminated for any reason before by the terms of such Net Proceeds are appliedOther Second-Lien Obligations), then Bidco or to the date fixed for the closing of such Restricted Subsidiary shall prepay the Loans offer, in accordance with the procedures set forth in this Section 2.10(c4.06. 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.
(cd) Pending the final application of any such Net Proceeds pursuant to this covenantSection 4.06, the holder of Holdings or such Net Proceeds Restricted Subsidiary may apply such Net Proceeds temporarily to reduce Indebtedness outstanding under the Revolving Facility or any other a revolving credit facility facility, if any, or otherwise use invest such Net Proceeds in any manner not prohibited by this AgreementIndenture.
(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. Bidco To the extent that the provisions of any securities laws or any Restricted Subsidiaryregulations 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 case may beTrustee an Officers’ Certificate as to (i) the amount of the Excess Proceeds, may elect to invest in Bidco and its Subsidiaries prior to receiving (ii) the allocation of the Net Proceeds attributable from the Asset Sales pursuant to any given which such Asset Sale Offer is being made and (provided 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 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 investment 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); provided that no earlier 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 first class mail, postage prepaid, at least 30 but not more than execution 60 days before the purchase date to each holder of a definitive agreement for the relevant Asset Sale) and deem the amount so invested Notes at such holder’s registered address. If any Note is to be applied pursuant to and purchased in accordance with clause (b)(ii) above with respect part only, any notice of purchase that relates to such Asset SaleNote shall state the portion of the principal amount thereof that has been or is to be purchased.
Appears in 1 contract
Asset Sales. (a) Bidco shall The Company will not, and shall will not permit any of its Restricted Subsidiaries to, consummate an Asset Sale, Sale unless:
: (i1) Bidco the Company or such Restricted Subsidiary, as the case may be, receives consideration at the time of such the Asset Sale at least equal to the Fair Market Value (as such Fair Market Value to be determined at the time of contractually agreeing to such Asset Sale) of the assets or Capital Interests issued or sold or otherwise disposed of; and
(ii2) except in the case of a Permitted Asset Swap, if the property or assets sold or otherwise disposed of have a Fair Market Value in excess of the greater of $375,000,000 and 50% of Consolidated EBITDA for the most recently ended Test Period at the time of such disposition, calculated on a Pro Forma Basis, at least 75% of the consideration therefor received in the Asset Sale by Bidco the Company or such Restricted Subsidiary, as the case may be, is in the form of cash or Eligible Cash Equivalents; provided that and
(b) For the amount ofpurposes of Section 4.10(a)(2) above, each of the following will be deemed to be cash:
(A1) any liabilities, contingent liabilities (as shown on the most recent consolidated balance sheet of the Company or otherwise, of Bidco or such any Restricted Subsidiary, ) of the Company or any of its Restricted Subsidiaries (other than contingent liabilities and liabilities that are by their terms subordinated to the Secured Obligations Notes or any Note Guarantee) that are owed to Bidco or a Restricted Subsidiary that (x) are assumed by the transferee of any such assets (pursuant to a customary assignment and assumption agreement that releases the Company or a third party in connection with such transfer) or (y) are otherwise cancelled or terminated in connection with the transaction with such transferee (other than intercompany debt owed to Bidco or its Restricted Subsidiaries) and, in each case, for which Bidco and all of its Restricted Subsidiaries have been validly releasedSubsidiary from further liability;
(B2) any securities, notes or other obligations or assets received by Bidco the Company or such any of its Restricted Subsidiary Subsidiaries from such the transferee that are converted by Bidco the Company or such Restricted Subsidiary into cash or Cash Equivalents (within 180 days of their receipt to the extent of the cash or Cash Equivalents received) within 180 days following the closing of such Asset Sale;
received in that conversion; (C) Indebtedness of any Restricted Subsidiary that ceases to be a Restricted Subsidiary as a result of such Asset Sale (other than intercompany debt owed to Bidco or any Restricted Subsidiary), to the extent that Bidco and each other Restricted Subsidiary are released from any guarantee of payment of the principal amount of such Indebtedness in connection with such Asset Sale in accordance with the terms of this Agreement,
(D) consideration consisting of Indebtedness of a Borrower or a Guarantor (other than intercompany debt owed to Bidco or any Restricted Subsidiary and other than Subordinated Indebtedness) received after the Effective Date from Persons who are not Bidco, Holdings or any Restricted Subsidiary;
(E3) any Designated Non-cash Consideration received by Bidco the Company or such any of its Restricted Subsidiary Subsidiaries in such Asset Sale having an aggregate Fair Market Value Value, taken together with all other Designated Non-cash Consideration received pursuant to this clause (E3) that is at that time outstanding, not to exceed the greater of $225,000,000 and 302.0% of Consolidated EBITDA for the most recently ended Test Period Total Assets at the time of the receipt of such Designated Non-cash Consideration, calculated on a Pro Forma Basis Consideration (with the Fair Market Value of each such item of Designated Non-cash Consideration being measured pursuant to this clause (E) at Bidco’s option, either at the time of contractually agreeing to such Asset Sale or at the time received and, in either case, and without giving effect to subsequent changes in value); and
and (F4) any Investment, Capital Stockstock, assetsasset, property or capital or other expenditure of the kind referred to in Section 6.04(b)(ii) shall be deemed to be Cash Equivalents for purposes of this provision and for no other purpose.
clauses (b) Within the Reinvestment Period after Bidco’s or any Restricted Subsidiary’s receipt of the Net Proceeds of any Asset Sale2), Bidco or such Restricted Subsidiary shall apply an amount equal to the Net Proceeds from such Asset Sale,
(i) 3), (A) to prepay Loans or Indebtedness in accordance with Section 2.10(c4) or (B5) to the extent not required to prepay Loans pursuant to of Section 2.10(c), to be retained by Bidco and/or Restricted Subsidiaries; or
(ii) to make investments in Bidco and its Subsidiaries; provided that Bidco and the Restricted Subsidiaries will be deemed to have complied with this clause (ii) if and to the extent that, within the Reinvestment Period after the Asset Sale that generated the Net Proceeds, Bidco or such Restricted Subsidiary has entered into and not abandoned or rejected a binding agreement or letter of intent to consummate any such investment described in this clause (ii) 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 such commitment is later cancelled or terminated for any reason before the Net Proceeds are applied in connection therewith, Bidco or such Restricted Subsidiary enters into another Acceptable Commitment (a “Second Commitment”) within 180 days of such cancellation or termination; provided that if any Second Commitment is later cancelled or terminated for any reason before such Net Proceeds are applied, then Bidco or such Restricted Subsidiary shall prepay the Loans in accordance with Section 2.10(c4.10(c).
(c) Pending Within 365 days after the final application receipt of any Net Cash Proceeds pursuant to this covenantfrom an Asset Sale (the “Asset Sale Proceeds Application Period”), the holder of such Net Proceeds may apply such Net Proceeds temporarily to reduce Indebtedness outstanding under Company or the Revolving Facility or any other revolving credit facility or otherwise use such Net Proceeds in any manner not prohibited by this Agreement. Bidco or any applicable Restricted Subsidiary, as the case may be, may elect apply such Net Cash Proceeds, at its option: (1) (A) to invest prepay, repay, redeem or purchase any First Priority Obligations of the Company or any Restricted Subsidiary and cause such Debt to be permanently retired and the related commitment (if any) to be permanently reduced in Bidco and its Subsidiaries an amount equal to the principal amount so prepaid, repaid, redeemed or repurchased; provided, however, that (x) to the extent the terms of such First Priority Obligations (other than Additional Notes) require Net Cash Proceeds to repay obligations outstanding under such First Priority Obligations prior to receiving the repayment of other First Priority -99- Obligations, the Company or such Restricted Subsidiary shall be entitled to repay such obligations without an obligation to offer to repay obligations under the Notes in an equivalent amount and (y) except as provided in the foregoing clause (x), to the extent the Company or such Guarantor so reduces any other First Priority Obligations, the Company shall offer to purchase an equal and ratable amount of the Notes as provided under Article 3 by making an Offer to Purchase (in accordance with the procedures set forth in Section 4.10(d)) to all Holders of Notes to purchase their Notes at 100% of the principal amount thereof, plus accrued but unpaid interest to, but not including, the date of purchase (and, in the case of revolving loans, to correspondingly reduce commitments with respect thereto); (B) to prepay, repay, redeem or purchase outstanding Obligations under the Bridge Facilities; or (C) solely to the extent that such Net Cash Proceeds are not derived from an Asset Sale of Collateral, to reduce Obligations ranking pari passu in right of payment with the Notes (other than First Priority Obligations); provided, that to the extent the Company or the applicable Restricted Subsidiary so reduces any such pari passu Obligations, the Company shall equally and ratably offer to repay obligations under the Notes outstanding in the manner set forth in clause (A) above; (2) to acquire all or substantially all of the assets of, or any Capital Interests of, another Permitted Business, if, after giving effect to any such acquisition of Capital Interests, the Permitted Business is or becomes a Restricted Subsidiary of the Company; provided that, to the extent such Net Cash Proceeds are derived from an Asset Sale of Collateral, such assets or Capital Interests, as applicable, shall be added to the Collateral securing the Notes to the extent required by this Indenture or any of the Collateral Documents; (3) to make a capital expenditure in or that is used or useful (as determined in the good faith judgment of the Company) in a Permitted Business or to make expenditures for maintenance, repair or improvement of existing properties and assets in accordance with the provisions of this Indenture; (4) to acquire other assets that are not classified as current assets under IFRS and that are used or useful (as determined in the good faith judgment of the Company) in a Permitted Business; provided that, to the extent such Net Cash Proceeds are derived from an Asset Sale of Collateral, such assets shall be added to the Collateral securing the Notes to the extent required by this Indenture or any of the Collateral Documents; or (5) any combination of the foregoing, provided that, in the case of clause (3) of this Section 4.10(c), a binding commitment shall be treated as a permitted application of the Net Cash Proceeds attributable to any given from the date of
(d) Any Net Cash Proceeds from Asset Sales that are not applied or invested as provided in Section 4.10(c) will constitute “Excess Proceeds.” When the aggregate amount of Excess Proceeds exceeds the greater of (x) $60 million and (y) 1.0% of Consolidated Total Assets, the Company will, within 30 days after the expiry of the Asset Sale Proceeds Application Period, make an Offer to Purchase to all Holders of Notes (on a pro rata basis to each series of Notes), and if required by the terms of any other First Priority Obligations containing comparable repurchase rights, to purchase or redeem the maximum principal amount of Notes and such other First Priority Obligations that may be purchased out of the amount of such Excess Proceeds. The offer price in any Offer to Purchase of Notes 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. If any Excess Proceeds remain after consummation of an Offer to Purchase, the Company may use those funds for any purpose not otherwise prohibited by this Indenture and they will no longer constitute Excess Proceeds. If the aggregate principal amount of Notes and other First Priority Obligations tendered into such Offer to Purchase exceeds the amount of Excess Proceeds, the Trustee will select the Notes and the trustee or agent for the other First Priority Obligations will select the First Priority Obligations to be purchased on a pro rata basis among each series. Upon completion of each Offer to Purchase, the amount of Excess Proceeds will be reset at zero.
(e) Pending the final application of any Net Cash Proceeds pursuant to this Section 4.10, such Net Cash Proceeds may be applied temporarily to reduce Debt outstanding under a revolving credit facility or may otherwise be invested in any manner not prohibited by this Indenture.
(f) The Company will comply with the applicable requirements of Rule 14e-1 under the Exchange Act and any other applicable securities laws and regulations thereunder, including Canadian Securities Laws, to the extent those laws and regulations are applicable in connection with each repurchase of Notes pursuant to an Offer to Purchase. 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 will be deemed to have complied with its obligations under the provisions of this Section 4.10 by virtue of such compliance with the applicable securities laws and regulations.
(g) Other than as specifically provided that such investment in this Section 4.10, any purchase pursuant to this Section 4.10 shall be made no earlier than execution of a definitive agreement for the relevant Asset Sale) and deem the amount so invested to be applied pursuant to the provisions of Sections 3.02, 3.05 and in accordance with clause (b)(ii) above with respect to such Asset Sale3.06.
Appears in 1 contract
Asset Sales. (a) Bidco shall The Company will not, and shall will not permit any of its Restricted Subsidiaries to, directly or indirectly, consummate an Asset Sale, unless:
Sale unless (i) Bidco at least 75% of the consideration from such Asset Sale is received in cash or Cash Equivalents, and (ii) the Company or such Restricted Subsidiary, as the case may be, Subsidiary receives consideration at the time of such Asset Sale at least equal to the Fair Market Value of the shares or assets subject to such Asset Sale (as determined at by the time Board of contractually agreeing to such Directors and evidenced in a Board Resolution).
(b) Within 360 days of the Asset Sale, the Company may at its option apply the Net Cash Proceeds (1) of to repay Indebtedness under the assets sold Senior Credit Facility or otherwise disposed of; and
any other Senior Secured Debt (ii) except in the case of a Permitted Asset Swap, if the property or assets sold or otherwise disposed of have a Fair Market Value in excess of the greater of $375,000,000 and 50% of Consolidated EBITDA for the most recently ended Test Period at the time of such disposition, calculated on a Pro Forma Basis, at least 75% of the consideration therefor received by Bidco or such Restricted Subsidiary, as the case may be, is in the form of cash or Cash Equivalents; provided that the amount of:
(A) any liabilities, contingent or otherwise, of Bidco or such Restricted Subsidiary, other than liabilities that are by their terms subordinated to the Secured Obligations or that are owed to Bidco or a Restricted Subsidiary that (x) are assumed by the transferee of any such assets (or a third party in connection with such transfer) or (y) are otherwise cancelled or terminated in connection with the transaction with such transferee (other than intercompany debt owed to Bidco or its Restricted Subsidiaries) and, in each case, for which Bidco and all of its Restricted Subsidiaries have been validly released;
(B) any securities, notes effect a corresponding permanent reduction in the availability under such Senior Credit Facility or other obligations or assets received by Bidco or such Restricted Subsidiary from such transferee that are converted by Bidco or such Restricted Subsidiary into cash or Cash Equivalents (to the extent of the cash or Cash Equivalents received) within 180 days following the closing of such Asset Sale;
(C) Indebtedness of any Restricted Subsidiary that ceases to be a Restricted Subsidiary as a result of such Asset Sale (other than intercompany debt owed to Bidco or any Restricted Subsidiary), to the extent that Bidco and each other Restricted Subsidiary are released from any guarantee of payment of the principal outstanding amount of such Indebtedness Senior Secured Debt) or to repay unsecured Senior Debt that has provisions requiring the Company to make an offer to purchase upon an Asset Sale; provided, however, that if Bally repays such unsecured Senior Debt it must make a ratable offer to all Holders of Notes as provided in connection paragraph (c) below; (2) to acquire properties and assets that (as determined by the Board of Directors) replace the - 97 - properties and assets that were the subject of the Asset Sale; or (3) to acquire properties and assets that will be used in the businesses of the Company or its Subsidiaries existing on the Issue Date or in businesses reasonably related or complementary. The amount of such Net Cash Proceeds not applied or invested as set forth in this paragraph shall constitute “Excess Proceeds.”
(c) When the aggregate amount of Excess Proceeds exceeds $15,000,000, the Company will apply the Excess Proceeds to the repayment of the Notes and any other unsecured Senior Debt outstanding with provisions requiring the Company to make an offer to purchase or to purchase or redeem such unsecured Senior Debt with the proceeds from any Asset Sale as follows: (A) the Company will make an offer to purchase (an “Offer”) from all Holders of the Notes in accordance with the terms of procedures set forth in this Agreement,
Indenture in the maximum principal amount (D) consideration consisting of Indebtedness of expressed as a Borrower or a Guarantor (other than intercompany debt owed to Bidco or any Restricted Subsidiary and other than Subordinated Indebtedness) received after the Effective Date from Persons who are not Bidco, Holdings or any Restricted Subsidiary;
(E) any Designated Non-cash Consideration received by Bidco or such Restricted Subsidiary in such Asset Sale having an aggregate Fair Market Value taken together with all other Designated Non-cash Consideration received pursuant to this clause (E) that is at that time outstanding, not to exceed the greater multiple of $225,000,000 and 30% 1,000) of Consolidated EBITDA for the most recently ended Test Period at the time Notes that may be purchased out of the receipt of such Designated Non-cash Consideration, calculated on a Pro Forma Basis (with the Fair Market Value of each such item of Designated Non-cash Consideration being measured pursuant to this clause (E) at Bidco’s option, either at the time of contractually agreeing to such Asset Sale or at the time received and, in either case, without giving effect to subsequent changes in value); and
(F) any Investment, Capital Stock, assets, property or capital or other expenditure of the kind referred to in Section 6.04(b)(ii) shall be deemed to be Cash Equivalents for purposes of this provision and for no other purpose.
(b) Within the Reinvestment Period after Bidco’s or any Restricted Subsidiary’s receipt of the Net Proceeds of any Asset Sale, Bidco or such Restricted Subsidiary shall apply an amount (the “Notes Amount”) equal to the Net product of such Excess Proceeds multiplied by a fraction, the numerator of which is the outstanding principal amount of the Notes, and the denominator of which is the sum of the outstanding principal amount of the Notes and such unsecured Senior Debt outstanding with provisions requiring the Company to make an offer to purchase or to purchase or redeem such unsecured Senior Debt with the proceeds from any Asset Sale (subject to proration in the event such Asset Sale,
amount is less than the aggregate Offered Price (ias defined herein) (A) to prepay Loans or Indebtedness in accordance with Section 2.10(c) or of all Notes tendered), and (B) to the extent not required to prepay Loans pursuant to Section 2.10(c), to be retained by Bidco and/or Restricted Subsidiaries; or
(ii) such unsecured Senior Debt outstanding with provisions requiring the Company to make investments an offer to purchase or to purchase or redeem such unsecured Senior Debt with the proceeds from any Asset Sale to permanently reduce the principal amount of such unsecured Senior Debt, the Company will make an offer to purchase or otherwise repurchase or redeem unsecured Senior Debt (a “Senior Debt Offer”) in Bidco and its Subsidiariesan amount (the “Senior Debt Amount”) equal to the excess of the Excess Proceeds over the Notes Amount; provided that Bidco and in no event will the Restricted Subsidiaries Company be required to make a Senior Debt Offer in a Senior Debt Amount exceeding the principal amount of such unsecured Senior Debt plus the amount of any premium required to be paid to repurchase such unsecured Senior Debt. The offer price for the Notes will be deemed payable in cash in an amount equal to have complied with this clause (ii) 100% of the principal amount of the Notes plus accrued and unpaid interest, if and any, to the extent that, within date (the Reinvestment Period after the Asset Sale that generated the Net Proceeds, Bidco or such Restricted Subsidiary has entered into and not abandoned or rejected a binding agreement or letter of intent to consummate any such investment described in this clause (ii) with the good faith expectation that such Net Proceeds will be applied to satisfy such commitment within 180 days of such commitment (an “Acceptable CommitmentOffer Date”) andsuch Offer is consummated (the “Offered Price”), in the event any such commitment is later cancelled or terminated for any reason before the Net Proceeds are applied in connection therewith, Bidco or such Restricted Subsidiary enters into another Acceptable Commitment (a “Second Commitment”) within 180 days of such cancellation or termination; provided that if any Second Commitment is later cancelled or terminated for any reason before such Net Proceeds are applied, then Bidco or such Restricted Subsidiary shall prepay the Loans in accordance with Section 2.10(c)the procedures set forth in this Indenture. To the extent that the aggregate Offered Price of the Notes tendered pursuant to the Offer is less than the Notes Amount relating thereto or the aggregate amount of unsecured Senior Debt that is purchased in a Senior Debt Offer is less than the Senior Debt Amount, the Company may use any remaining Excess Proceeds for any purpose not otherwise prohibited by this Indenture. If the aggregate principal amount of Notes and such unsecured Senior Debt 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 the completion of the purchase of all the Notes tendered pursuant to an Offer and the completion of Senior Debt Offer, the amount of Excess Proceeds, if any, shall be reset at zero.
(d) If the Company becomes obligated to make an Offer pursuant to clause (c) Pending the final application of any Net Proceeds pursuant to this covenantabove, the holder Notes and the unsecured Senior Debt that has provisions requiring the Company to make an offer to purchase upon an Asset Sale shall be purchased by the Company, at the option of the holders thereof, in whole or in part in integral multiples of $1,000, on a date that is not earlier than 30 days and not later than 60 days from the date the notice of such Net Proceeds Offer is given to holders, or such later date as may apply such Net Proceeds temporarily be necessary for the Company to reduce Indebtedness outstanding comply with the requirements under the Revolving Facility or Exchange Act. - 98 -
(e) The Company will comply with the applicable tender offer rules, including Rule 14e-l under the Exchange Act, and any other revolving credit facility applicable securities laws or otherwise use such Net Proceeds regulations in any manner not prohibited by this Agreement. Bidco or any Restricted Subsidiary, as the case may be, may elect to invest in Bidco and its Subsidiaries prior to receiving the Net Proceeds attributable to any given Asset Sale (provided that such investment shall be made no earlier than execution of a definitive agreement for the relevant Asset Sale) and deem the amount so invested to be applied pursuant to and in accordance connection with clause (b)(ii) above with respect to such Asset Salean Offer.
Appears in 1 contract
Asset Sales. The Parent and the Borrower will not, and will not permit any other Subsidiary to, Dispose of any asset, including any Equity Interest owned by it, except:
(a) Bidco shall not, and shall not permit any Dispositions in the ordinary course of its Restricted Subsidiaries to, consummate an Asset Sale, unless:business;
(ib) Bidco or such Restricted Subsidiary, as the case may be, receives consideration at the time of such Asset Sale at least equal Dispositions to the Fair Market Value (as determined at the time of contractually agreeing to such Asset Sale) of the assets sold Parent or otherwise disposed ofa Subsidiary; and
(ii) except provided that in the case of a Permitted Asset SwapDisposition by a Loan Party to a Subsidiary that is not a Loan Party, if such Disposition shall be on fair and reasonable terms substantially as favorable to the property or assets sold or otherwise disposed of have a Fair Market Value in excess of Loan Party and such Subsidiary as would be obtainable by the greater of $375,000,000 Loan Party and 50% of Consolidated EBITDA for the most recently ended Test Period such Subsidiary at the time in a comparable arm’s-length transaction with a Person other than an Affiliate;
(c) Dispositions pursuant to sale and leaseback transactions permitted by Section 7.06(a);
(d) Dispositions of such disposition, calculated on a Pro Forma Basis, at least 75% assets that are not permitted by any other clause of the consideration therefor received by Bidco or such Restricted Subsidiary, as the case may be, is in the form of cash or Cash Equivalentsthis Section 7.05; provided that the aggregate fair market value of all assets sold, transferred or otherwise disposed in reliance upon this clause (d) shall not exceed $1,100,000,000 during any fiscal year and shall not exceed $2,750,000,000 during the period from and including the Effective Date to but excluding the Maturity Date; provided, further that in the event, and on each occasion, that any Material Acquisition is consummated after the Effective Date, each of the two amounts set forth in the immediately preceding proviso shall be increased by an amount of:equal to 25% of the value of the assets acquired pursuant to such Material Acquisition (valued based upon the amount at which such assets would be reflected on a balance sheet of the Parent and its Subsidiaries prepared on a consolidated basis in accordance with GAAP after giving effect to such Material Acquisition); and
(Ae) any liabilities, contingent or otherwise, Any Disposition as part of Bidco or such Restricted Subsidiary, the Towers Xxxxxx Restructuring Transactions. provided that all Dispositions permitted hereby (other than liabilities that are those permitted by their terms subordinated to the Secured Obligations or that are owed to Bidco or a Restricted Subsidiary that clause (x) are assumed by the transferee of any such assets (or a third party in connection with such transfera) or (yb) are otherwise cancelled above) shall be made for full fair value and on an arm’s length basis, as reasonably determined in good faith by the Parent or terminated the Borrower, taking into account all relevant considerations. Any merger or consolidation of a Subsidiary with or into any other Person that results in connection with such Subsidiary ceasing to be a Subsidiary or the transaction with Parent owning a reduced percentage of the Equity Interests in such transferee (other than intercompany debt owed to Bidco or its Restricted Subsidiaries) andSubsidiary shall, in each case, for which Bidco and all of its Restricted Subsidiaries have been validly released;
(B) any securities, notes or other obligations or assets received by Bidco or such Restricted Subsidiary from such transferee that are converted by Bidco or such Restricted Subsidiary into cash or Cash Equivalents (to the extent of the cash or Cash Equivalents received) within 180 days following the closing be treated as a Disposition of such Asset Sale;
Subsidiary (Cor the relevant portion thereof) Indebtedness of any Restricted Subsidiary that ceases to be a Restricted Subsidiary as a result of such Asset Sale (other than intercompany debt owed to Bidco or any Restricted Subsidiary), to the extent that Bidco and each other Restricted Subsidiary are released from any guarantee of payment of the principal amount of such Indebtedness in connection with such Asset Sale in accordance with the terms of this Agreement,
(D) consideration consisting of Indebtedness of a Borrower or a Guarantor (other than intercompany debt owed to Bidco or any Restricted Subsidiary and other than Subordinated Indebtedness) received after the Effective Date from Persons who are not Bidco, Holdings or any Restricted Subsidiary;
(E) any Designated Non-cash Consideration received by Bidco or such Restricted Subsidiary in such Asset Sale having an aggregate Fair Market Value taken together with all other Designated Non-cash Consideration received pursuant to this clause (E) that is at that time outstanding, not to exceed the greater of $225,000,000 and 30% of Consolidated EBITDA for the most recently ended Test Period at the time of the receipt of such Designated Non-cash Consideration, calculated on a Pro Forma Basis (with the Fair Market Value of each such item of Designated Non-cash Consideration being measured pursuant to this clause (E) at Bidco’s option, either at the time of contractually agreeing to such Asset Sale or at the time received and, in either case, without giving effect to subsequent changes in value); and
(F) any Investment, Capital Stock, assets, property or capital or other expenditure of the kind referred to in Section 6.04(b)(ii) shall be deemed to be Cash Equivalents for purposes of this provision and for no other purposeSection 7.05.
(b) Within the Reinvestment Period after Bidco’s or any Restricted Subsidiary’s receipt of the Net Proceeds of any Asset Sale, Bidco or such Restricted Subsidiary shall apply an amount equal to the Net Proceeds from such Asset Sale,
(i) (A) to prepay Loans or Indebtedness in accordance with Section 2.10(c) or (B) to the extent not required to prepay Loans pursuant to Section 2.10(c), to be retained by Bidco and/or Restricted Subsidiaries; or
(ii) to make investments in Bidco and its Subsidiaries; provided that Bidco and the Restricted Subsidiaries will be deemed to have complied with this clause (ii) if and to the extent that, within the Reinvestment Period after the Asset Sale that generated the Net Proceeds, Bidco or such Restricted Subsidiary has entered into and not abandoned or rejected a binding agreement or letter of intent to consummate any such investment described in this clause (ii) 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 such commitment is later cancelled or terminated for any reason before the Net Proceeds are applied in connection therewith, Bidco or such Restricted Subsidiary enters into another Acceptable Commitment (a “Second Commitment”) within 180 days of such cancellation or termination; provided that if any Second Commitment is later cancelled or terminated for any reason before such Net Proceeds are applied, then Bidco or such Restricted Subsidiary shall prepay the Loans in accordance with Section 2.10(c).
(c) 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 the Revolving Facility or any other revolving credit facility or otherwise use such Net Proceeds in any manner not prohibited by this Agreement. Bidco or any Restricted Subsidiary, as the case may be, may elect to invest in Bidco and its Subsidiaries prior to receiving the Net Proceeds attributable to any given Asset Sale (provided that such investment shall be made no earlier than execution of a definitive agreement for the relevant Asset Sale) and deem the amount so invested to be applied pursuant to and in accordance with clause (b)(ii) above with respect to such Asset Sale.
Appears in 1 contract
Asset Sales. (a) Bidco The Company shall not, and shall not permit any of its Restricted Subsidiaries to, consummate an Asset Sale, unless:
(i1) Bidco the Company or such Restricted Subsidiary, as the case may be, receives consideration at the time of such Asset Sale at least equal to the Fair Market Value fair market value (as determined at in good faith by the time of contractually agreeing to such Asset SaleCompany) of the assets sold or otherwise disposed of; and
(ii2) except in the case of a Permitted Asset Swap, if the property or assets sold or otherwise disposed of have a Fair Market Value in excess of the greater of $375,000,000 and 50% of Consolidated EBITDA for the most recently ended Test Period at the time of such disposition, calculated on a Pro Forma Basis, at least 75% of the consideration therefor received by Bidco the Company or such Restricted Subsidiary, as the case may be, is in the form of cash or Cash Equivalents; provided that the amount of:
(Aa) any liabilities, contingent liabilities (as shown on the Company’s or otherwise, such Restricted Subsidiary’s most recent balance sheet or in the footnotes thereto) of Bidco the Company or such Restricted Subsidiary, other than liabilities that are by their terms subordinated to the Secured Obligations Series B Notes (or Guarantees) or that are owed to Bidco the Company or a Restricted Subsidiary Subsidiary, that (x) are assumed by the transferee of any such assets (or a third party in connection with such transfer) or (y) are otherwise cancelled or terminated in connection with the transaction with such transferee (other than intercompany debt owed to Bidco or its Restricted Subsidiaries) and, in each case, and for which Bidco the Company and all of its Restricted Subsidiaries have been validly released;irrevocably released from such liabilities,
(Bb) any securities, notes or other obligations or assets received by Bidco the Company or such Restricted Subsidiary from such transferee that are converted by Bidco the Company or such Restricted Subsidiary into cash or Cash Equivalents (to the extent of the cash or Cash Equivalents received) within 180 days following the closing of such Asset Sale;, subject to ordinary settlement periods, and
(C) Indebtedness of any Restricted Subsidiary that ceases to be a Restricted Subsidiary as a result of such Asset Sale (other than intercompany debt owed to Bidco or any Restricted Subsidiary), to the extent that Bidco and each other Restricted Subsidiary are released from any guarantee of payment of the principal amount of such Indebtedness in connection with such Asset Sale in accordance with the terms of this Agreement,
(D) consideration consisting of Indebtedness of a Borrower or a Guarantor (other than intercompany debt owed to Bidco or any Restricted Subsidiary and other than Subordinated Indebtedness) received after the Effective Date from Persons who are not Bidco, Holdings or any Restricted Subsidiary;
(Ec) any Designated Non-cash Consideration received by Bidco the Company or such Restricted Subsidiary in such Asset Sale having an aggregate Fair Market Value fair market value, taken together with all other Designated Non-cash Consideration received pursuant to this clause (Ec) that is at that time outstanding, not to exceed the greater of (x) $225,000,000 150,000,000 and 30(y) 2.0% of Consolidated EBITDA for Total Assets as of the end of the Company’s most recently ended Test Period at fiscal quarter prior to the time date of the receipt of such Designated Non-cash Consideration, calculated on a Pro Forma Basis (with the Fair Market Value fair market value of each such item of Designated Non-cash Consideration being measured pursuant to this clause (E) at Bidco’s option, either at the time of contractually agreeing to such Asset Sale or at the time received and, in either case, and without giving effect to subsequent changes in value); and
(F) any Investment, Capital Stock, assets, property or capital or other expenditure of the kind referred to in Section 6.04(b)(ii) value shall be deemed to be Cash Equivalents cash for purposes of this provision and for no other purpose.
(b) Within 18 months after the Reinvestment Period after Bidco’s or any Restricted Subsidiary’s receipt of the any Net Proceeds of any Asset Sale:
(1) by the Company or any Restricted Subsidiary, Bidco then the Company or such Restricted Subsidiary shall Subsidiary, at its option, may apply an amount equal to the Net Proceeds from such Asset Sale,Sale to permanently reduce Obligations under any Senior Indebtedness of the Issuer or the Guarantors, 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 (Ato the extent such purchases are at or above 100.0% of the principal amount thereof) or (ii) any other Senior Subordinated Indebtedness of the Issuer or a Guarantor (and to prepay Loans correspondingly reduce commitments with respect thereto); provided, however, that the Issuer shall equally and ratably reduce (or Indebtedness 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 2.10(c3.09 and Section 4.10(c) or (Bhereof) to all Holders of Series B Notes to purchase a pro rata amount of Series B Notes at 100.0% of the extent principal amount thereof, plus accrued but unpaid interest;
(3) [Reserved];
(4) [Reserved];
(5) by any Restricted Subsidiary that is not required 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 prepay Loans pursuant permanently reduce Obligations under Indebtedness of Restricted Subsidiaries that are not the Issuer or not Guarantors, and to Section 2.10(c), to be retained by Bidco and/or Restricted Subsidiariescorrespondingly reduce commitments with respect thereto; or
(ii6) to make investments in Bidco and its Subsidiaries; provided that Bidco and by the Company or any Restricted Subsidiaries will be deemed to have complied with this clause (ii) if and to Subsidiary, then the extent that, within the Reinvestment Period after the Asset Sale that generated the Net Proceeds, Bidco Company or such Restricted Subsidiary has entered into 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 not abandoned results in the Issuer or rejected 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 (d) 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 agreement commitment shall be treated as a permitted application of the Net Proceeds from the date of such commitment so long as the Issuer or letter of intent to consummate any such investment described in this clause (ii) other Restricted Subsidiary enters into such commitment with the good faith expectation that such Net Proceeds will shall be applied to satisfy such commitment within the later of 18 months after receipt of such Net Proceeds and 180 days of following such commitment (an “Acceptable Commitment”) andcommitment; provided further, in the event any however, that if such commitment is later cancelled or terminated for any reason before after the Net Proceeds are applied in connection therewith, Bidco or such Restricted Subsidiary enters into another Acceptable Commitment (a “Second Commitment”) within 180 days later of such cancellation 18 month or termination; provided that if any Second Commitment is later cancelled or terminated 180 day period for any reason before such Net Proceeds are applied, then Bidco or such Restricted Subsidiary Net Proceeds shall prepay the Loans in accordance with Section 2.10(c)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 Senior Subordinated Indebtedness, to the holders of such Senior Subordinated 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 Senior Subordinated 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 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 Indenture, with a copy to the Trustee or otherwise in accordance with the procedures of DTC. The Issuer, in its sole discretion, may satisfy the foregoing obligations with respect to any Net Proceeds from an Asset Sale by making an Asset Sale Offer with respect to such Net Proceeds prior to the expiration of the relevant 18 month period (or such longer period provided above) or with respect to Excess Proceeds of $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 Senior Subordinated 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 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 Senior Subordinated 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 Senior Subordinated Indebtedness shall select such other Senior Subordinated 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 Senior Subordinated Indebtedness tendered. 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 covenantSection 4.10, the holder of such Net Proceeds may apply such Net Proceeds temporarily to reduce Indebtedness outstanding under the Revolving Facility or any other a revolving credit facility facility, including under any Credit Facilities, or otherwise use invest or apply such Net Proceeds in any manner not prohibited by this Agreement. Bidco 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 any Restricted Subsidiary, as regulations are applicable in connection with the case may be, may elect repurchase of the Series B Notes pursuant to invest in Bidco and its Subsidiaries prior to receiving the Net Proceeds attributable to any given an Asset Sale (provided Offer. To the extent that such investment 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 made no earlier than execution of a definitive agreement for the relevant Asset Sale) and deem the amount so invested deemed to be applied pursuant to and have breached its obligations described in accordance with clause (b)(ii) above with respect to such Asset Salethis Indenture by virtue thereof.
Appears in 1 contract
Asset Sales. (a) Bidco shall The Company will not, and shall will not permit any of its Restricted Subsidiaries to, consummate an Asset Sale, Sale unless:
(iA) Bidco the Company (or such Restricted Subsidiary, as the case may be, ) receives consideration (including by way of relief from, or by any other Person assuming responsibility for, any liabilities, contingent or otherwise) at the time of such the Asset Sale at least equal to the Fair Market Value fair market value (as determined at the time of contractually agreeing to such Asset Sale) ), as determined in good faith by the Company, of the assets or Common Stock issued or sold or otherwise disposed of; and
(iiB) except in the case of a Permitted Asset Swap, if the property or assets sold or otherwise disposed of have a Fair Market Value in excess of the greater of $375,000,000 and 50% of Consolidated EBITDA for the most recently ended Test Period at the time of such disposition, calculated on a Pro Forma Basis, at least 75% of the consideration therefor received in the Asset Sale by Bidco the Company or such Restricted Subsidiary, as the case may be, Subsidiary is in the form of cash or Cash Equivalents; provided that . For purposes of clause (B) above, the amount of:
of (Ai) any liabilitiesliabilities (as shown on the Company’s or the applicable Subsidiary’s most recent balance sheet or in the notes thereto or, contingent if incurred or otherwiseaccrued subsequent to the date of such balance sheet, such liabilities that would have been reflected on the Company’s consolidated balance sheet or in the footnotes thereto if such incurrence or accrual had taken place on or prior to the date of Bidco such balance sheet, as determined in good faith by the Company) of the Company or such Restricted Subsidiary, any Subsidiary (other than liabilities that are by their terms subordinated to the Secured Obligations or Notes) that are owed to Bidco or a Restricted Subsidiary that (x) are assumed by the transferee of any such assets (or a third party in connection with such transfer) or (y) are otherwise cancelled or terminated in connection with and from which the transaction with such transferee (other than intercompany debt owed to Bidco or its Restricted Subsidiaries) and, in each case, for which Bidco Company and all of its Restricted Subsidiaries have been validly released;
released by all creditors in writing, (Bii) any securities, notes or other obligations or assets securities received by Bidco the Company or such Restricted Subsidiary from such transferee that are converted by Bidco the Company or such Restricted Subsidiary into cash or Cash Equivalents (to the extent of the cash or Cash Equivalents received) within 180 days following the closing of such Asset Sale;
, and (C) Indebtedness of any Restricted Subsidiary that ceases to be a Restricted Subsidiary as a result of such Asset Sale (other than intercompany debt owed to Bidco or any Restricted Subsidiary), to the extent that Bidco and each other Restricted Subsidiary are released from any guarantee of payment of the principal amount of such Indebtedness in connection with such Asset Sale in accordance with the terms of this Agreement,
(D) consideration consisting of Indebtedness of a Borrower or a Guarantor (other than intercompany debt owed to Bidco or any Restricted Subsidiary and other than Subordinated Indebtedness) received after the Effective Date from Persons who are not Bidco, Holdings or any Restricted Subsidiary;
(Eiii) any Designated Non-cash Cash Consideration received by Bidco the Company or such Restricted Subsidiary any of its Subsidiaries in such Asset Sale having an aggregate Fair Market Value fair market value (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 (Eiii) that is at that time outstanding, not to exceed the greater of $225,000,000 and 30% of Consolidated EBITDA for the most recently ended Test Period at the time of the receipt of such Designated Non-cash Consideration, calculated on a Pro Forma Basis 2.5 million (with the Fair Market Value fair market value of each such item of Designated Non-cash Cash Consideration being measured pursuant to this clause (E) at Bidco’s option, either at the time of contractually agreeing to such Asset Sale or at the time received and, in either case, without giving effect to subsequent changes in value); and
(F) any Investment, Capital Stock, assets, property or capital or other expenditure of the kind referred to in Section 6.04(b)(ii) shall be deemed to be Cash Equivalents cash for purposes of this provision paragraph and for no other purpose.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:
(b1) Within to reduce obligations under other Indebtedness of the Reinvestment Period after Bidco’s 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 Restricted 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 10(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’s receipt , (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 any Asset Salesuch commitment so long as the Company, Bidco or such Restricted other Subsidiary shall apply an amount equal to the Net Proceeds from enters into such Asset Sale,
(i) (A) to prepay Loans or Indebtedness in accordance with Section 2.10(c) or (B) to the extent not required to prepay Loans pursuant to Section 2.10(c), to be retained by Bidco and/or Restricted Subsidiaries; or
(ii) to make investments in Bidco and its Subsidiaries; provided that Bidco and the Restricted Subsidiaries will be deemed to have complied with this clause (ii) if and to the extent that, within the Reinvestment Period after the Asset Sale that generated the Net Proceeds, Bidco or such Restricted Subsidiary has entered into and not abandoned or rejected a binding agreement or letter of intent to consummate any such investment described in this clause (ii) 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 such commitment is later cancelled or terminated for any reason before the Net Proceeds are applied in connection therewith, Bidco 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 Acceptable Commitment is later cancelled or terminated for any reason before such Net Proceeds are applied, then Bidco such Net Proceeds shall constitute Excess Proceeds. Any Net Proceeds from an Asset Sale not applied or such Restricted Subsidiary shall prepay the Loans invested in accordance with Section 2.10(c)the preceding paragraph within the time periods set forth above shall constitute “Excess Proceeds.
(c) ” Pending the final application of any Net Proceeds pursuant to this covenantProceeds, the holder of such Net Proceeds Company or the applicable Subsidiary may apply such Net Proceeds temporarily to reduce Indebtedness outstanding under the Revolving Facility or any other revolving credit facility borrowings or otherwise use such invest the Net Proceeds in any manner that is not prohibited by this AgreementNote. Bidco When the aggregate amount of Excess Proceeds exceeds $15 million, the Company or any Restricted Subsidiarythe applicable Subsidiary will, as the case may bewithin twenty (20) Business Days, may elect to invest in Bidco and its Subsidiaries prior to receiving the Net Proceeds attributable to any given 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 (provided that such investment shall be made no earlier than execution of a definitive agreement for including any Notes issued under the relevant Asset SalePurchase Agreement) and deem 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 so invested of Excess Proceeds, the Notes to be applied pursuant to purchased will be selected on a pro rata basis and in accordance with clause 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 (b)(ii) above and, if required by the terms thereof, all Indebtedness that ranks pari passu with respect 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 SaleSale 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. (a) Bidco shall The Company will not, and shall will not permit any of its Restricted Subsidiaries to, consummate an Asset Sale, Sale unless:
(i1) Bidco the Company (or such a Restricted Subsidiary, as the case may be, ) receives consideration at the time of such the Asset Sale at least equal to the Fair Market Value fair market value (measured as determined at of the time date of contractually agreeing the definitive agreement with respect to such Asset Sale) of the assets or Equity Interests issued or sold or otherwise disposed of; and
(ii2) except in the case of a Permitted Asset Swap, if the property or assets sold or otherwise disposed of have a Fair Market Value in excess of the greater of $375,000,000 and 50% of Consolidated EBITDA for the most recently ended Test Period at the time of such disposition, calculated on a Pro Forma Basis, at least 75% of the aggregate consideration therefor received by Bidco or such the Company and its Restricted SubsidiarySubsidiaries in the Asset Sale, as together with all other Asset Sales since the case may be, date hereof (on a cumulative basis) is in the form of cash cash, Cash Equivalents or Cash Equivalents; provided that Replacement Assets. For purposes of this clause (2), each of the amount offollowing will be deemed to be cash:
(Aa) any liabilitiesliabilities (as shown on the Company’s or any Restricted Subsidiary’s most recent balance sheet or in the footnotes thereto, contingent or otherwiseas would be shown on such balance sheet or footnotes if such liability was incurred subsequent to the date of such balance sheet), of Bidco the Company or such Restricted Subsidiary, Subsidiary (other than contingent liabilities and liabilities that are by their terms contractually subordinated in right of payment to the Secured Obligations Notes or that are owed to Bidco or a Restricted Subsidiary any Guarantee) that (xi) are assumed by the transferee of any such assets (pursuant to an agreement that releases the Company or a third party in connection with such transfer) Restricted Subsidiary from further liability, or (yii) are otherwise cancelled released, discharged or terminated in connection with the transaction with such transferee (other than intercompany debt owed to Bidco or its Restricted Subsidiaries) and, in each case, for which Bidco and all of its Restricted Subsidiaries have been validly releasedforgiven;
(Bb) any securities, notes or other obligations or assets received by Bidco the Company or such any Restricted Subsidiary from such transferee that are are, within 180 days after the Asset Sale, converted by Bidco the Company or such Restricted Subsidiary into cash or Cash Equivalents (Equivalents, to the extent of the cash or Cash Equivalents received) within 180 days following the closing of such Asset Sale;received in that conversion; and
(C) Indebtedness of any Restricted Subsidiary that ceases to be a Restricted Subsidiary as a result of such Asset Sale (other than intercompany debt owed to Bidco or any Restricted Subsidiary), to the extent that Bidco and each other Restricted Subsidiary are released from any guarantee of payment of the principal amount of such Indebtedness in connection with such Asset Sale in accordance with the terms of this Agreement,
(D) consideration consisting of Indebtedness of a Borrower or a Guarantor (other than intercompany debt owed to Bidco or any Restricted Subsidiary and other than Subordinated Indebtedness) received after the Effective Date from Persons who are not Bidco, Holdings or any Restricted Subsidiary;
(Ec) any Designated Non-cash Consideration received by Bidco the Company or such any Restricted Subsidiary in such Asset Sale having an aggregate Fair Market Value fair market value, taken together with all other Designated Non-cash Consideration received pursuant to this clause (Ec) that is at that the time outstanding, not to exceed the greater of (x) $225,000,000 30.0 million and 30(y) 2.0% of the Company’s Consolidated EBITDA for the most recently ended Test Period at the time Net Tangible Assets as of the receipt date of the definitive agreement with respect to such Designated Non-cash ConsiderationAsset Sale, calculated on a Pro Forma Basis (with the Fair Market Value fair market value of each such item of Designated Non-cash Consideration being measured pursuant to this clause (E) at Bidco’s option, either at as of the time date of contractually agreeing the definitive agreement with respect to such Asset Sale or at the time received and, in either case, and without giving effect to subsequent changes in value); and
(F3) the Net Proceeds from any Investmentsuch Asset Sale of Notes Priority Collateral is paid directly by the purchaser thereof to the Collateral Trustee to be held in a Collateral Account for application in accordance with this Section 4.10.
(b) Notwithstanding anything to the contrary in Section 4.10(a) hereof, Capital Stock, assets, property or capital or other expenditure the Company and its Restricted Subsidiaries will not be required to cause any Net Proceeds to be held in a Collateral Account in accordance with Section 4.10(a)(3) hereof except to the extent the aggregate Net Proceeds from all Asset Sales of Notes Priority Collateral that (x) are not held in a Collateral Account and (y) have not been previously applied in accordance with the provisions of the kind referred following paragraphs relating to the application of Net Proceeds from Asset Sales of Notes Priority Collateral, exceed $25.0 million.
(c) Within 365 days after the receipt of any Net Proceeds from an Asset Sale, the Company or any Restricted Subsidiary may apply such Net Proceeds at its option to any combination of the following:
(1) to repay Cash Flow Obligations; provided that if the Company or any Restricted Subsidiary shall so repay any Cash Flow Obligations not consisting of Notes Obligations, the Company will equally and ratably reduce Cash Flow Obligations with respect to the Notes as provided under Section 3.07 through open-market purchases (provided that such purchases are not less than 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 not less than 100% of the principal amount thereof (provided that (i) such Cash Flow Obligations will be deemed repaid to the extent of the amount of any such offer, whether or not accepted by the holders of such Cash Flow Obligations, and (ii) if the holder of any Cash Flow Obligations declines the repayment of such Cash Flow Obligations owed to it from such Net Proceeds, such amount will be deemed repaid to the extent of the declined Net Proceeds); provided further, however, that to the extent such Net Proceeds constitute proceeds from the sale of (A) ABL Priority Collateral, such Net Proceeds may be applied to repay obligations under the ABL Credit Agreement, and (B) assets of a Restricted Subsidiary that is not a Guarantor, such Net Proceeds may be applied to repay Indebtedness of a Restricted Subsidiary that is not a Guarantor; or
(2) to acquire all or substantially all of the properties or assets of a Person primarily engaged in a Permitted Business if, after giving effect to such acquisition, such Person is or becomes a Restricted Subsidiary of the Company;
(3) to acquire any Capital Stock of a Person operating a Permitted Business if, after giving effect to such acquisition, such Person operating a Permitted Business is or becomes a Restricted Subsidiary of the Company;
(4) to make capital expenditures in respect of the Company’s or its Restricted Subsidiaries’ Permitted Business or make an Investment in Replacement Assets; or
(5) to acquire other assets that are used or useful in a Permitted Business or make an Investment in assets that will be used or useful in the Company’s or any Restricted Subsidiary’s business. The requirement of clause (2), (3), (4) or (5) of this Section 6.04(b)(ii4.10(c) shall be deemed to be Cash Equivalents for purposes of this provision and for no other purpose.
satisfied if a bona fide binding contract committing to make the acquisition, purchase, Investment or expenditure referred to therein is entered into by the Company (b) Within the Reinvestment Period after Bidco’s or any of its Restricted Subsidiary’s receipt Subsidiaries with a Person other than an Affiliate of the Net Proceeds of any Asset Sale, Bidco or such Restricted Subsidiary shall apply an amount equal to the Net Proceeds from such Asset Sale,
(iCompany) (A) to prepay Loans or Indebtedness in accordance with Section 2.10(c) or (B) to the extent not required to prepay Loans pursuant to Section 2.10(c), to be retained by Bidco and/or Restricted Subsidiaries; or
(ii) to make investments in Bidco and its Subsidiaries; provided that Bidco and the Restricted Subsidiaries will be deemed to have complied with this clause (ii) if and to the extent that, within the Reinvestment Period after the Asset Sale that generated the Net Proceeds, Bidco or such Restricted Subsidiary has entered into and not abandoned or rejected a binding agreement or letter of intent to consummate any such investment described time period specified in this clause (iiSection 4.10(c) 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 such commitment is later cancelled or terminated for any reason before the Net Proceeds are applied in connection therewith, Bidco or such Restricted Subsidiary enters into another Acceptable Commitment (a “Second Commitment”) within 180 days of such cancellation or termination; provided that if any Second Commitment is later cancelled or terminated for any reason before and such Net Proceeds are applied, then Bidco or such Restricted Subsidiary shall prepay the Loans subsequently applied in accordance with Section 2.10(c).
(c) such contract within 180 days following the date such agreement is entered into. Pending the final application of any such Net Proceeds pursuant to this covenantProceeds, the holder of such Net Proceeds Company may apply such Net Proceeds temporarily to reduce Indebtedness outstanding under the Revolving Facility or any other revolving credit facility or otherwise use utilize such Net Proceeds in any manner that is not prohibited by this AgreementIndenture.
(d) Any Net Proceeds from Asset Sales that are not applied or invested as provided in Section Section 4.10(c) hereof will constitute “Excess Proceeds” (it being understood that any portion of such Net Proceeds used to make an offer to purchase Notes as described in Sections 4.10(c)(1) hereof shall be deemed to have been invested whether or not such offer is accepted).
(e) Within 10 Business Days after the aggregate amount of Excess Proceeds exceeds $25.0 million (or, at the Company’s option, on any earlier date or for any lesser amount), the Company will make an offer (an “Asset Sale Offer”) in accordance with the procedures of Section 3.09 to all Holders, and all holders of other Cash Flow Obligations containing provisions similar to those set forth in this Indenture with respect to offers to purchase, prepay or redeem with the proceeds of sales of assets, to purchase, prepay or redeem the maximum principal amount of Notes and such other Cash Flow Obligations (plus all accrued interest on the Indebtedness and the amount of all fees and expenses, including premiums, incurred in connection therewith) that may be purchased, prepaid or redeemed out of the Excess Proceeds. Bidco The offer price in any Asset Sale Offer will be equal to 100% of the principal amount plus accrued and unpaid interest to, but not including, the date of settlement, subject to the right of Holders of record on the relevant record date to receive interest due on an interest payment date that is on or prior to the date of settlement, and will be payable in cash. If any Excess Proceeds remain after the consummation of an Asset Sale Offer, the Company or any Restricted Subsidiary, as Subsidiary may use those Excess Proceeds for any purpose not otherwise prohibited by this Indenture. If the case may be, may elect to invest aggregate principal amount of Notes and other Cash Flow Obligations tendered in Bidco and its Subsidiaries prior to receiving the Net Proceeds attributable to any given such Asset Sale (provided that such investment shall be made no earlier than execution of a definitive agreement for the relevant Asset Sale) and deem Offer exceeds the amount so invested of Excess Proceeds, the Trustee will select the Notes and the Trustee or agent for such other Cash Flow Obligations shall select such Cash Flow Obligations to be applied purchased on a pro rata basis (except that any Notes represented by a Note in global form will be selected by such method as DTC or its nominee or successor may require or, where such nominee or successor is the Trustee, a method that most nearly approximates pro rata selection) but with such adjustments as necessary so that no Notes or other Cash Flow Obligations is purchased in part in an unauthorized denomination. Upon completion of each Asset Sale Offer, the amount of Excess Proceeds will be reset at zero.
(f) The Company will comply with the requirements of Rule 14e-1 under the Exchange Act and any other securities laws and regulations thereunder to the extent those laws and regulations are applicable in connection with each repurchase of Notes pursuant to an Asset Sale Offer. To the extent that the provisions of any securities laws or regulations conflict with Section 3.09 hereof or this Section 4.10, the Company will comply with the applicable securities laws and in accordance with clause (b)(ii) above with respect 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 Asset Salecompliance.
Appears in 1 contract
Asset Sales. (a) Bidco shall The Company will not, and shall will not permit any of its Restricted Subsidiaries to, consummate an Asset Sale, unless:
(i1) Bidco the Company or such Restricted Subsidiary, as the case may be, receives consideration at the time of such Asset Sale at least equal to the Fair Market Value fair market value (as such fair market value to be determined in good faith by the Company, including its board of directors if such fair market value is in excess of $100,000,000, at the time of contractually agreeing to such Asset Sale) of the assets sold or otherwise disposed of; and
(ii2) except in the case of a Permitted Asset Swap, if the property or assets sold or otherwise disposed of have a Fair Market Value in excess of the greater of $375,000,000 and 50% of Consolidated EBITDA for the most recently ended Test Period at the time of such disposition, calculated on a Pro Forma Basis, at least 75% of the consideration therefor received by Bidco the Company or such Restricted Subsidiary, as the case may be, is in the form of cash or Cash Equivalents; provided that the amount of:
(A) any liabilities, contingent liabilities (as shown on the Company’s or otherwise, such Restricted Subsidiary’s most recent balance sheet or in the footnotes thereto) of Bidco the Company or such Restricted Subsidiary, other than liabilities that are by their terms subordinated to the Secured Obligations Notes or that are owed to Bidco the Company or a Restricted Subsidiary Subsidiary, that (x) are assumed by the transferee of any such assets (or a third party in connection with such transfer) or (y) are otherwise cancelled or terminated in connection with the transaction with such transferee (other than intercompany debt owed to Bidco or its Restricted Subsidiaries) and, in each case, and for which Bidco the Company and all of its Restricted Subsidiaries have been validly released;released by all creditors in writing,
(B) any securities, notes or other obligations or assets received by Bidco the Company or such Restricted Subsidiary from such transferee that are converted by Bidco the Company or such Restricted Subsidiary into cash or Cash Equivalents (to the extent of the cash or Cash Equivalents received) within 180 days following the closing of such Asset Sale;, and
(C) Indebtedness of any Restricted Subsidiary that ceases to be a Restricted Subsidiary as a result of such Asset Sale (other than intercompany debt owed to Bidco or any Restricted Subsidiary), to the extent that Bidco and each other Restricted Subsidiary are released from any guarantee of payment of the principal amount of such Indebtedness in connection with such Asset Sale in accordance with the terms of this Agreement,
(Di) consideration consisting of Indebtedness of a Borrower or a Guarantor (other than intercompany debt owed to Bidco or any Restricted Subsidiary and other than Subordinated Indebtedness) received after the Effective Date from Persons who are not Bidco, Holdings or any Restricted Subsidiary;
(E) any Designated Non-cash Cash Consideration received by Bidco the Company or such Restricted Subsidiary in such Asset Sale having an aggregate Fair Market Value fair market value, taken together with all other Designated Non-cash Cash Consideration received pursuant to this clause (EC)(i) that is at that time outstanding, not to exceed the greater of $225,000,000 and 305.0% of Consolidated EBITDA for the most recently ended Test Period Total Assets at the time of the receipt of such Designated Non-cash Cash Consideration, calculated on or (ii) any Investment (not constituting a Pro Forma Basis Permitted Asset Swap) received by the Company or a Restricted Subsidiary that is treated by the Company as a Restricted Payment under Section 4.07(a) or 4.07(b) hereof or a Permitted Investment under clause (8) or (13) of the definition thereof, with the Fair Market Value fair market value of each such item of Designated Non-cash Consideration Cash Consideration, Restricted Payment or Permitted Investment being measured pursuant to this clause (EC) at Bidco’s option, either at the time of contractually agreeing to such Asset Sale or at the time received and, in either case, and without giving effect to subsequent changes in value); and
(F) any Investment, Capital Stock, assets, property or capital or other expenditure of the kind referred to in Section 6.04(b)(ii) shall be deemed to be Cash Equivalents for purposes of this provision and for no other purpose.
(b) Within 450 days after the Reinvestment Period after Bidco’s or any Restricted Subsidiary’s receipt of the any Net Proceeds of any Asset Sale, Bidco the Company or such Restricted Subsidiary shall Subsidiary, at its option, may apply an amount equal to the Net Proceeds from such Asset Sale,:
(i1) to permanently reduce:
(A) Obligations constituting First Lien Obligations (and, if the Indebtedness repaid is revolving credit Indebtedness, to prepay Loans or Indebtedness in accordance correspondingly reduce commitments with Section 2.10(c) or respect thereto); provided that (Bx) to the extent not required that the terms of First Lien Obligations (other than Obligations under the Notes) require that such First Lien Obligations be repaid with the Net Proceeds of Asset Sales prior to prepay Loans pursuant to Section 2.10(crepayment of other Indebtedness (including the Notes), the Company and its Restricted Subsidiaries shall be entitled to be retained repay such other First Lien Obligations prior to repaying the Obligations under the Notes and (y) except as provided in the foregoing clause (x), if the Company or any Restricted Subsidiary shall so reduce First Lien Obligations, the Company will equally and ratably reduce Obligations under the Notes as provided in Section 3.07 hereof through open-market purchases (provided that such purchases are at or above 100% of the principal amount thereof) or by Bidco and/or making an offer (in accordance with the procedures set forth herein for an Asset Sale Offer) to all Holders to purchase their Notes at a purchase price equal to 100% of the principal amount thereof, plus accrued and unpaid interest on the principal amount of Notes so purchased;
(B) Obligations ranking pari passu with the Notes other than First Lien Obligations so long as the relevant Net Proceeds are received with respect to non-Collateral; provided that if the Company or any Restricted SubsidiariesSubsidiary shall so reduce any such pari passu Obligations, the Company will equally and ratably reduce Obligations under the Notes in any manner set forth in clause (A) above; or
(iiC) Indebtedness of a Restricted Subsidiary that is not a Guarantor, other than Indebtedness owed to the Company or another Restricted Subsidiary;
(2) to make investments (a) an Investment in Bidco and its Subsidiariesany one or more businesses; provided that Bidco such Investment in any business is in the form of the acquisition of Capital Stock that results in the Company or any of its Restricted Subsidiaries, as the case may be, owning an amount of the Capital Stock of such business such that it constitutes a Restricted Subsidiary or increases the Company’s direct or indirect percentage ownership of the Capital Stock of a Restricted Subsidiary, (b) capital expenditures or (c) acquisitions of other assets, in the case of each of (a), (b) and (c), used or useful in a Similar Business; provided that the Restricted Subsidiaries will be deemed to have complied assets (including Capital Stock) acquired with this clause (ii) if and the Net Proceeds of a disposition of Collateral are pledged as Collateral to the extent required under the Security Documents (except to the extent the Lien thereon is released by the lenders under the Senior Credit Facilities); or
(3) to make an Investment in (a) any one or more businesses; provided that such Investment in any business is in the form of the acquisition of Capital Stock that results in the Company or any of its Restricted Subsidiaries, as the case may be, owning an amount of the Capital Stock of such business such that it constitutes a Restricted Subsidiary or increases the Company’s direct or indirect percentage ownership of the Capital Stock of a Restricted Subsidiary, (b) properties or (c) acquisitions of other assets that, within in the Reinvestment Period case of each of (a), (b) and (c), replace the businesses, properties or assets that are the subject of such Asset Sale; provided that the assets (including Capital Stock) acquired with the Net Proceeds of a disposition of Collateral are pledged as Collateral to the extent required under the Security Documents (except to the extent the Lien thereon is released by the lenders under the Senior Credit Facilities); provided that, in the case of clauses (2) and (3) of this Section 4.10, a binding commitment entered into not later than such 450th day shall extend the period for such Investment or other payment for an additional 180 days after the Asset Sale that generated end of such 450-day period so long as the Net Proceeds, Bidco Company or such other Restricted Subsidiary has entered enters into and not abandoned or rejected a binding agreement or letter of intent to consummate any such investment described in this clause (ii) 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 such commitment Acceptable Commitment is later cancelled or terminated for any reason before the Net Proceeds are applied in connection therewith, Bidco the Company or such Restricted Subsidiary enters into another Acceptable Commitment (a “Second Commitment”) within 180 days of such cancellation or termination180-day period; provided further that (x) if any Second Commitment is later cancelled or terminated for any reason before such Net Proceeds are appliedapplied or (y) such Net Proceeds are not actually so invested or paid in accordance with clauses (2) or (3) of this Section 4.10 by the end of such 180-day period, then Bidco such Net Proceeds shall constitute Excess Proceeds on the date of such cancellation or termination, or such Restricted Subsidiary 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 the preceding paragraph will be deemed to constitute “Excess Proceeds.” When the aggregate amount of Excess Proceeds exceeds $100,000,000, the Company shall prepay make an offer to all Holders of the Loans Notes and to the holders of the Pari Passu Indebtedness in accordance with Section 2.10(c3.09 hereof, to purchase the maximum aggregate principal amount of the Notes and such Pari Passu Indebtedness that is in an amount equal to at least $2,000, that may be purchased out of the Excess Proceeds at an offer price in cash in an amount equal to 100% of the principal amount thereof (or accreted value thereof, if less), plus accrued and unpaid interest, if any, to the date fixed for the closing of such offer, in accordance with the procedures set forth in this Indenture. The Company will commence an Asset Sale Offer with respect to Excess Proceeds within ten Business Days after the date that Excess Proceeds exceed $100,000,000 by delivering the notice required pursuant to the terms of this Indenture, with a copy to the Trustee. The Company may satisfy the foregoing obligations with respect to any Net Proceeds from an Asset Sale by making an Asset Sale Offer with respect to such Net Proceeds prior to the expiration of the relevant 450 days (or such longer period provided above) or with respect to Excess Proceeds of $100,000,000 or less in accordance with Section 3.09 hereof.
(cd) To the extent that the aggregate principal amount of Notes and such Pari Passu Indebtedness tendered pursuant to an Asset Sale Offer is less than the Excess Proceeds, the Company may use any remaining Excess Proceeds for general corporate purposes, subject to the other covenants contained in this Indenture. If the aggregate principal amount of Notes or the Pari Passu Indebtedness surrendered by such holders thereof exceeds the amount of Excess Proceeds, the Trustee shall select the Notes and the Company shall select such Pari Passu Indebtedness to be purchased on a pro rata basis based on the accreted value or principal amount of the Notes or such Pari Passu Indebtedness tendered. Upon completion of any such Asset Sale Offer, the amount of Excess Proceeds that resulted in the Asset Sale Offer shall be reset to zero.
(e) Pending the final application of any Net Proceeds pursuant to this covenant, the holder of such Net Proceeds may apply such Net Proceeds temporarily to reduce Indebtedness outstanding under the Revolving Facility or any other a revolving credit facility or otherwise use invest such Net Proceeds in any manner not prohibited by this AgreementIndenture. Bidco 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 any Restricted Subsidiary, as regulations are applicable in connection with the case may be, may elect repurchase of the Notes pursuant to invest in Bidco and its Subsidiaries prior to receiving the Net Proceeds attributable to any given an Asset Sale (provided Offer. To the extent that the provisions of any securities laws or regulations conflict with the provisions of this Indenture, the Company will comply with the applicable securities laws and regulations and shall not be deemed to have breached its obligations under this Indenture by virtue of such investment shall be made no earlier than execution of a definitive agreement for the relevant Asset Sale) and deem the amount so invested to be applied pursuant to and in accordance with clause (b)(ii) above with respect to such Asset Salecompliance.
Appears in 1 contract
Samples: Indenture (Sabre Corp)
Asset Sales. (a) Bidco The Company shall not, and shall not permit any of its Restricted Subsidiaries to, consummate an Asset Sale, Sale unless:
(i1) Bidco the Company (or such the Restricted Subsidiary, as the case may be, ) receives consideration at the time of such the Asset Sale at least equal to the Fair Market Value (measured as determined at of the time date of contractually agreeing the definitive agreement with respect to such Asset Sale) of the assets or Equity Interests issued or sold or otherwise disposed of; and
(ii2) except in the case of a Permitted Asset Swap, if the property or assets sold or otherwise disposed of have a Fair Market Value in excess of the greater of $375,000,000 and 50% of Consolidated EBITDA for the most recently ended Test Period at the time of such disposition, calculated on a Pro Forma Basis, at least 75% of the consideration therefor received in the Asset Sale by Bidco the Company or such Restricted Subsidiary, as the case may be, Subsidiary is in the form of cash or Cash Equivalents; provided provided, however, to the extent that any disposition in such Asset Sale was of Collateral, any consideration received is pledged as Collateral under the amount ofSecurity Documents promptly after receipt of such non-cash consideration by the Company or such Restricted Subsidiary, to the extent required by and, in accordance with the requirements set forth in this Indenture and the Security Documents. For purposes of this Section 4.20(a), each of the following shall be deemed to be cash:
(A) any liabilities, contingent as shown on the Company’s most recent consolidated balance sheet (or, if incurred after the date of such balance sheet, as would have been shown on such consolidated balance sheet had they been incurred on or otherwiseprior to its date), of Bidco the Company or such any Restricted Subsidiary, Subsidiary (other than contingent liabilities and liabilities that are by their terms subordinated to the Secured Obligations Notes or any Note Guarantee) that are owed to Bidco or a Restricted Subsidiary that (x) are assumed by the transferee of any such assets (or a third party in connection with such transfer) or (y) are otherwise cancelled or terminated in connection with the transaction with such transferee (any other Person, other than intercompany debt owed to Bidco the Company or its Restricted Subsidiaries) and, in each case, for which Bidco and all one of its Subsidiaries, pursuant to a customary novation or indemnity agreement that releases the Company or such Restricted Subsidiaries have been validly releasedSubsidiary from or indemnifies it against further liability;
(B) any securities, notes notes, or other obligations or assets received by Bidco the Company or such any of its Restricted Subsidiary Subsidiaries from such transferee that are are, subject to ordinary settlement periods, converted by Bidco the Company or such Restricted Subsidiary into cash or Cash Equivalents (cash, to the extent of the cash or Cash Equivalents received) within 180 days following the closing of such Asset Sale;received in that conversion; and
(C) Indebtedness of any Restricted Subsidiary that ceases to be a Restricted Subsidiary as a result of such Asset Sale (other than intercompany debt owed to Bidco stock or any Restricted Subsidiary), to the extent that Bidco and each other Restricted Subsidiary are released from any guarantee of payment of the principal amount of such Indebtedness in connection with such Asset Sale in accordance with the terms of this Agreement,
(D) consideration consisting of Indebtedness of a Borrower or a Guarantor (other than intercompany debt owed to Bidco or any Restricted Subsidiary and other than Subordinated Indebtedness) received after the Effective Date from Persons who are not Bidco, Holdings or any Restricted Subsidiary;
(E) any Designated Non-cash Consideration received by Bidco or such Restricted Subsidiary in such Asset Sale having an aggregate Fair Market Value taken together with all other Designated Non-cash Consideration received pursuant to this clause (E) that is at that time outstanding, not to exceed the greater of $225,000,000 and 30% of Consolidated EBITDA for the most recently ended Test Period at the time of the receipt of such Designated Non-cash Consideration, calculated on a Pro Forma Basis (with the Fair Market Value of each such item of Designated Non-cash Consideration being measured pursuant to this clause (E) at Bidco’s option, either at the time of contractually agreeing to such Asset Sale or at the time received and, in either case, without giving effect to subsequent changes in value); and
(F) any Investment, Capital Stock, assets, property or capital or other expenditure assets of the kind referred to in clauses (2) or (4) of Section 6.04(b)(ii) shall be deemed to be Cash Equivalents for purposes of this provision and for no other purpose4.20(b).
(b) Within 360 days after the Reinvestment Period after Bidco’s receipt of any Net Proceeds from an Asset Sale, the Company or any Restricted Subsidiary’s receipt of Subsidiary may apply such Net Proceeds:
(1) to repay Indebtedness and other Obligations under any Credit Facility; provided that, if the Net Proceeds of any Asset SaleIndebtedness repaid is revolving credit Indebtedness, Bidco or such Restricted Subsidiary shall apply to permanently reduce commitments with respect thereto in an amount equal to the Net Proceeds from such Asset Sale,principal amount so repaid;
(i) (A2) to prepay Loans acquire all or Indebtedness substantially all of the assets of, or any Capital Stock of, a Permitted Business or one or more Persons primarily engaged in accordance with Section 2.10(c) 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;
(B3) to the extent not required to prepay Loans pursuant to Section 2.10(c), to be retained by Bidco and/or Restricted Subsidiariesmake a capital expenditure; or
(ii4) to make investments acquire other assets that are not classified as current assets under GAAP and that are used or useful in Bidco and its Subsidiariesa Permitted Business; provided that Bidco and the assets (including Voting Stock) acquired with the Net 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 will be deemed to have complied with this clause (ii) if and Subsidiaries, to the extent that, within the Reinvestment Period after the Asset Sale that generated the Net Proceeds, Bidco or such Restricted Subsidiary has entered into required by and not abandoned or rejected a binding agreement or letter of intent to consummate any such investment described in this clause (ii) 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 such commitment is later cancelled or terminated for any reason before the Net Proceeds are applied in connection therewith, Bidco or such Restricted Subsidiary enters into another Acceptable Commitment (a “Second Commitment”) within 180 days of such cancellation or termination; provided that if any Second Commitment is later cancelled or terminated for any reason before such Net Proceeds are applied, then Bidco or such Restricted Subsidiary shall prepay the Loans in accordance with Section 2.10(c).
(c) the Security Documents. Pending the final application of any Net Proceeds pursuant to this covenantProceeds, the holder of such Company or any Restricted Subsidiary may apply the Net Proceeds may apply such Net Proceeds to temporarily to reduce Indebtedness outstanding under the Revolving Facility or any other revolving credit facility borrowings (without reducing the commitment thereunder) or otherwise use such invest the Net Proceeds in any manner that is not prohibited by this AgreementIndenture. Bidco Any Net Proceeds from Asset Sales that are not applied or invested as provided above in this Section 4.20(b) shall constitute “Excess Proceeds.” When the aggregate amount of Excess Proceeds exceeds $7.5 million, the Company shall, 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, 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 Restricted SubsidiaryAsset Sale Offer shall be equal to 100% of the principal amount plus accrued and unpaid interest, if any, to the date of purchase, prepayment or redemption, subject to the rights of Holders of Notes on the relevant Record Date to receive interest due on the relevant Interest Payment Date, and shall 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, premium, if any, and interest, on the Notes and other pari passu Indebtedness tendered into (or required to be prepaid or redeemed in connection with) such Asset Sale Offer exceeds the amount of Excess Proceeds (after deducting from such Excess Proceeds 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), the Trustee or the Registrar shall select the Notes to be purchased on a pro rata basis with any such pari passu Indebtedness (except that any Notes represented in global form shall be selected by such method as DTC or the applicable Depositary, as the case may be, or its nominee may elect require), based on the amounts tendered or required to invest be prepaid or redeemed (including, amounts required to be paid in Bidco respect of principal, premium, if any, interest, if any), with such adjustments as may be deemed appropriate so that Notes are repurchased in denominations of $1.00 or an integral multiple of $1.00 in principal amount in excess thereof and its Subsidiaries prior to receiving the Net Proceeds attributable to so that any given 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 (provided that such investment Offer, the amount of Excess Proceeds shall be made no earlier reset at zero.
(f) The Company shall not and shall not permit any of its Restricted Subsidiaries to, enter into or suffer to exist any agreement (other than execution of a definitive any agreement governing Credit Facilities for the relevant Asset Sale) and deem the amount so invested Indebtedness permitted to be applied incurred pursuant to and in accordance with clause (b)(ii1) above 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 shall comply with respect the requirements of Rule 14e-1 under the Exchange Act and any other securities laws and regulations thereunder to the extent those laws and regulations are applicable in connection with each repurchase of Notes and any pari passu Indebtedness pursuant to an Asset Sale Offer. To the extent that the provisions of any securities laws or regulations conflict with the Asset Sale provisions of this Indenture, the Company 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 Asset Salecompliance.
Appears in 1 contract
Asset Sales. (a) Bidco The Issuers shall not, and shall not permit any of its their Restricted Subsidiaries to, consummate an Asset SaleSale (including a Sale and Lease-Back Transaction), unless:
(i) Bidco the Issuers or such Restricted Subsidiary, as the case may be, receives consideration at the time of such Asset Sale at least equal to the Fair Market Value (as determined at the time of contractually agreeing to such Asset Sale) of the assets sold or otherwise disposed of; and
(ii) except in the case of a Permitted Asset Swap, if the property or assets sold or otherwise disposed of have a Fair Market Value in excess of the greater of $375,000,000 and 50% of Consolidated EBITDA for the most recently ended Test Period at the time of such disposition, calculated on a Pro Forma Basis, at least 75% of the consideration therefor received by Bidco the Issuers or such Restricted Subsidiarya Guarantor, as the case may be, is in the form of cash or Cash Equivalents; provided that the amount of:
(A1) any liabilitiesliabilities (as shown on the Issuers' or such Restricted Subsidiary's most recent balance sheet or in the footnotes thereto or, if incurred or increased subsequent to the date of such balance sheet, such liabilities that would have been shown on the Issuers' or such Restricted Subsidiary's balance sheet or in the footnotes thereto if such incurrence or increase had taken place on or prior to the date of such balance sheet, as determined by the Issuers), contingent or otherwise, of Bidco the Issuers or such Restricted Subsidiary, other than liabilities that are by their terms subordinated to the Secured Obligations or Securities, that are owed to Bidco or a Restricted Subsidiary that (x) are assumed by the transferee of any such assets (or a third party in connection with such transfer) or (y) that are otherwise cancelled or terminated in connection with the transaction with such transferee (other than intercompany debt owed to Bidco or its Restricted Subsidiaries) and, in each case, and for which Bidco the Issuers and all of its Restricted Subsidiaries have been validly released;released by all creditors in writing, and
(B2) any securities, notes or other obligations or assets received by Bidco the Issuers or such Restricted Subsidiary from such transferee that are converted by Bidco the Issuers or such Restricted Subsidiary into cash or Cash Equivalents (to the extent of the cash or Cash Equivalents received) within 180 30 days following the closing of such Asset Sale;
(C) Indebtedness of any Restricted Subsidiary that ceases to be a Restricted Subsidiary as a result of such Asset Sale (other than intercompany debt owed to Bidco or any Restricted Subsidiary), to the extent that Bidco and each other Restricted Subsidiary are released from any guarantee of payment of the principal amount of such Indebtedness in connection with such Asset Sale in accordance with the terms of this Agreement,
(D) consideration consisting of Indebtedness of a Borrower or a Guarantor (other than intercompany debt owed to Bidco or any Restricted Subsidiary and other than Subordinated Indebtedness) received after the Effective Date from Persons who are not Bidco, Holdings or any Restricted Subsidiary;
(E) any Designated Non-cash Consideration received by Bidco or such Restricted Subsidiary in such Asset Sale having an aggregate Fair Market Value taken together with all other Designated Non-cash Consideration received pursuant to this clause (E) that is at that time outstanding, not to exceed the greater of $225,000,000 and 30% of Consolidated EBITDA for the most recently ended Test Period at the time of the receipt of such Designated Non-cash Consideration, calculated on a Pro Forma Basis (with the Fair Market Value of each such item of Designated Non-cash Consideration being measured pursuant to this clause (E) at Bidco’s option, either at the time of contractually agreeing to such Asset Sale or at the time received and, in either case, without giving effect to subsequent changes in value); and
(F) any Investment, Capital Stock, assets, property or capital or other expenditure of the kind referred to in Section 6.04(b)(ii) shall be deemed to be 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 for no other purposetheir Restricted Subsidiaries, taken as a whole.
(b) Within 60 days after the Reinvestment Period after Bidco’s or any Restricted Subsidiary’s 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 that will be applied to redeem the Securities 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 SaleSale Offer Threshold"), Bidco or 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 Restricted Subsidiary shall apply Net Proceeds at an offer price in cash in an amount equal to 100% of the Net Proceeds from 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 Asset Sale,
(i) (A) to prepay Loans or Indebtedness offer, in accordance with Section 2.10(c) or (B) 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. To the extent not required to prepay Loans that the aggregate amount of Securities tendered pursuant to Section 2.10(c), to be retained by Bidco and/or Restricted Subsidiaries; or
(ii) to make investments in Bidco and its Subsidiaries; provided that Bidco and the Restricted Subsidiaries will be deemed to have complied with this clause (ii) if and to the extent that, within the Reinvestment Period after an Asset Sale Offer is less than the Asset Sale that generated Offer Threshold, the Net Proceeds, Bidco or such Restricted Subsidiary has entered into and not abandoned or rejected a binding agreement or letter of intent to consummate any such investment described in this clause (ii) with the good faith expectation that Issuers may use such Net Proceeds will be applied for general corporate purposes, subject to satisfy such commitment within 180 days of such commitment (an “Acceptable Commitment”) and, compliance with other covenants contained in the event any such commitment is later cancelled or terminated for any reason before the Net Proceeds are applied in connection therewith, Bidco or such Restricted Subsidiary enters into another Acceptable Commitment (a “Second Commitment”) within 180 days of such cancellation or termination; provided that if any Second Commitment is later cancelled or terminated for any reason before this Indenture and such Net Proceeds are appliedshall no longer be included for purposes of determining the 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, then Bidco or such Restricted Subsidiary the Trustee shall prepay select the Loans Securities to be purchased in accordance with the manner described in Section 2.10(c).
(c) 3.04. Pending the final application of any Net Proceeds pursuant to this covenantProceeds, the holder of such Net Proceeds may apply such Net Proceeds temporarily to reduce Indebtedness outstanding under the Revolving Facility or any other revolving credit facility or otherwise use Company shall deposit such Net Proceeds in any manner not prohibited by this Agreement. Bidco or any Restricted Subsidiary, as an account in which the case may be, may elect to invest in Bidco and its Subsidiaries prior to receiving the Net Proceeds attributable to any given Asset Sale (provided that such investment shall be made no earlier than execution of Collateral Trustee has a definitive agreement perfected security interest for the relevant Asset Sale) and deem benefit of the amount so invested to be applied pursuant to and Secured Parties in accordance with clause (b)(ii) above the applicable Lien priorities described in the Intercreditor Agreements. The Issuers shall comply with respect 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 SaleSale 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.
Appears in 1 contract
Samples: Indenture (Party City Holdco Inc.)
Asset Sales. (a) Bidco The Issuer shall not, and shall not permit any of its the Restricted Subsidiaries to, consummate cause or make an Asset Sale, unless:
unless (ix) Bidco the Issuer or such any Restricted Subsidiary, as the case may be, receives consideration at the time of such Asset Sale at least equal to the Fair Market Value (as determined at in good faith by the time of contractually agreeing to such Asset SaleIssuer) of the assets sold or otherwise disposed of; and
, and (iiy) except in the case of a Permitted Asset Swap, if the property or assets sold or otherwise disposed of have a Fair Market Value in excess of the greater of $375,000,000 and 50% of Consolidated EBITDA for the most recently ended Test Period at the time of such disposition, calculated on a Pro Forma Basis, at least 75% of the consideration therefor received by Bidco the Issuer or such Restricted Subsidiary, as the case may be, is in the form of cash or Cash Equivalents; provided that the amount of:
(Ai) any liabilities, contingent liabilities (as shown on the Issuer’s or otherwise, of Bidco or such a Restricted Subsidiary, ’s most recent balance sheet or in the notes thereto) of the Issuer or a Restricted Subsidiary (other than liabilities that are by their terms subordinated to the Secured Obligations Notes or any Subsidiary Guarantee) that are owed to Bidco or a Restricted Subsidiary that (x) are assumed by the transferee of any such assets (or a third party in connection with such transfer) or (y) that are otherwise cancelled or terminated in connection with the transaction with such transferee (other than intercompany debt owed to Bidco or its Restricted Subsidiaries) and, in each case, for which Bidco and all of its Restricted Subsidiaries have been validly released;transferee,
(Bii) any securities, notes or other obligations or other securities or assets received by Bidco the Issuer or such Restricted Subsidiary from such transferee that are converted by Bidco the Issuer or such Restricted Subsidiary into cash or Cash Equivalents within 180 days of the receipt thereof (to the extent of the cash or Cash Equivalents received) within 180 days following the closing of such Asset Sale;),
(Ciii) Indebtedness of any Restricted Subsidiary that ceases to be is no longer a Restricted Subsidiary as a result of such Asset Sale (other than intercompany debt owed to Bidco or any Restricted Subsidiary)Sale, to the extent that Bidco the Issuer and each other Restricted Subsidiary are released from any guarantee of payment of the principal amount of such Indebtedness in connection with such the Asset Sale in accordance with the terms of this AgreementSale,
(Div) consideration consisting of Indebtedness of a Borrower or a Guarantor the Issuer (other than intercompany debt owed to Bidco or any Restricted Subsidiary and other than Subordinated Indebtedness) received after the Effective Issue Date from Persons who are not Bidco, Holdings the Issuer or any Restricted Subsidiary;, and
(Ev) any Designated Non-cash Consideration received by Bidco the Issuer or such any Restricted Subsidiary in such Asset Sale having an aggregate Fair Market Value (as determined in good faith by the Issuer), taken together with all other Designated Non-Non- cash Consideration received pursuant to this clause (ESection 4.06(a)(v) that is at that time outstanding, not to exceed the greater of $225,000,000 75.0 million and 304.5% of Consolidated EBITDA for the most recently ended Test Period Total Assets at the time of the receipt of such Designated Non-cash Consideration, calculated on a Pro Forma Basis Consideration (with the Fair Market Value of each such item of Designated Non-cash Consideration being measured pursuant to this clause (E) at Bidco’s option, either at the time of contractually agreeing to such Asset Sale or at the time received and, in either case, and without giving effect to subsequent changes in value); and
(F) any Investment, Capital Stock, assets, property or capital or other expenditure of the kind referred to in Section 6.04(b)(ii) shall be deemed to be Cash Equivalents for the purposes of this provision and for no other purposeSection 4.06(a).
(b) Within 365 days after the Reinvestment Period after BidcoIssuer’s or any Restricted Subsidiary’s receipt of the Net Proceeds of any Asset Sale, Bidco the Issuer or such Restricted Subsidiary shall may apply an amount equal to the Net Proceeds from such Asset Sale,, at its option:
(i) to repay (A) Indebtedness constituting Bank Indebtedness and other Pari Passu Indebtedness that is secured by a Lien permitted under this Indenture (and, if the Indebtedness repaid is revolving credit Indebtedness, to prepay Loans correspondingly reduce commitments with respect thereto), (B) Indebtedness of a Restricted Subsidiary that is not a Subsidiary Guarantor, (C) Obligations under the Notes or (D) other Pari Passu Indebtedness (provided that if the Issuer or any Subsidiary Guarantor shall so reduce the Obligations under unsecured Pari Passu Indebtedness under this clause (D), the Issuer will equally and ratably reduce Notes Obligations pursuant to Section 3.01, through open-market purchases (provided that such purchases are at or above 100% of the principal amount thereof or, in the event that the Notes were issued with significant original issue discount, 100% of the accreted value thereof) or by making an offer (in accordance with Section 2.10(c) or (Bthe procedures set forth below for an Asset Sale Offer) to all holders to purchase at a purchase price equal to 100% of the extent not required to prepay Loans pursuant to Section 2.10(cprincipal 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 be retained by Bidco and/or Restricted Subsidiariesthe Issuer or an Affiliate of the Issuer; or
(ii) to make investments an investment in Bidco 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 (A) used or useful in a Similar Business or (B) that replace the properties and its Subsidiariesassets that are the subject of such Asset Sale or to reimburse the cost of any of the foregoing incurred on or after the date on which the Asset Sale giving rise to such Net Proceeds was contractually committed; In the case of Section 4.06(b)(ii), a binding commitment shall be treated as a permitted application of the Net Proceeds from the date of such commitment until the 18-month anniversary of the date of the receipt of such Net Proceeds; provided that Bidco and the Restricted Subsidiaries will be deemed to have complied with this clause (ii) if and to the extent that, within the Reinvestment Period after the Asset Sale that generated the Net Proceeds, Bidco or such Restricted Subsidiary has entered into and not abandoned or rejected a binding agreement or letter of intent to consummate any such investment described in this clause (ii) 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 such binding commitment is later cancelled canceled or terminated for any reason before the such Net Proceeds are applied in connection therewithso applied, Bidco then such Net Proceeds shall constitute Excess Proceeds unless the Issuer or such Restricted Subsidiary enters into another Acceptable Commitment binding commitment (a “Second Commitment”) within 180 days six months of such cancellation or terminationtermination of the prior binding commitment; provided provided, further, that if any the Issuer or such Restricted Subsidiary may only enter into a Second Commitment under the foregoing provision one time with respect to each Asset Sale and to the extent such Second Commitment is later cancelled or terminated for any reason before such Net Proceeds are appliedapplied or are not applied within 180 days of such Second Commitment, then Bidco or such Restricted Subsidiary Net Proceeds shall prepay the Loans in accordance with Section 2.10(c).
(c) constitute Excess Proceeds. Pending the final application of any such Net Proceeds pursuant to this covenantProceeds, the holder of Issuer or such Net Proceeds Restricted Subsidiary may apply such Net Proceeds temporarily to reduce Indebtedness outstanding under the Revolving Facility or any other a revolving credit facility facility, if any, or otherwise use invest such Net Proceeds in any manner not prohibited by this AgreementIndenture. Bidco or Any Net Proceeds from any Restricted SubsidiaryAsset Sale that are not applied as provided and within the time period set forth in the first sentence of this Section 4.06(b) (it being understood that any portion of such Net Proceeds used to make an offer to purchase 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 case aggregate amount of Excess Proceeds exceeds $150.0 million, the Issuer shall make an offer to all holders of Notes (and, at the option of the Issuer, to holders of any other Pari Passu Indebtedness) (an “Asset Sale Offer”) to purchase the maximum principal amount of Notes (and such other Pari Passu Indebtedness), that is at least $2,000 and an integral multiple of $1,000 in excess thereof that may bebe 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 other Pari Passu Indebtedness were 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 Pari Passu Indebtedness, such lesser price, if any, as may elect be provided for by the terms of such other Pari Passu Indebtedness), to invest the date fixed for the closing of such offer, in Bidco accordance with the procedures set forth in this Section 4.06. The Issuer will commence an Asset Sale Offer with respect to Excess Proceeds within ten (10) Business Days after the date that Excess Proceeds exceeds $150.0 million by mailing, or delivered electronically if held by the Depository, the notice required pursuant to the terms of this Indenture, with a copy to the Trustee. To the extent that the aggregate amount of Notes (and such other 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 any purpose that is not prohibited by this Indenture. If the aggregate principal amount of Notes (and such other Pari Passu Indebtedness) surrendered by holders thereof exceeds the amount of Excess Proceeds, the Trustee, upon receipt of notice from the Issuer of the aggregate principal amount to be selected, shall select the Notes to be purchased in the manner described in Section 4.06(e). Upon completion of any such Asset Sale Offer, the amount of Excess Proceeds shall be reset at zero.
(c) The Issuer 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 Issuer will comply with the applicable securities laws and regulations and shall not be deemed to have breached its Subsidiaries prior 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 receiving 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 attributable from the Asset Sales pursuant to any given which such Asset Sale Offer is being made and (provided 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 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 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 Offer Period for application in accordance with this Section 4.06.
(e) Holders electing to have a Note purchased shall be required to surrender such Note, with an appropriate form duly completed, to the 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 investment holder is withdrawing his election to have such Note purchased. If at the end of the Offer Period more Notes (and such other Pari Passu Indebtedness) are tendered pursuant to an Asset Sale Offer than the 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 (and the Issuer 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 Trustee shall deem fair and appropriate (and in such manner as complies with the requirements of the Depository, if applicable); provided that no earlier Notes of $2,000 or less shall be purchased in part. Selection of such other Pari Passu Indebtedness shall be made pursuant to the terms of such other Pari Passu Indebtedness.
(f) Notices of an Asset Sale Offer shall be mailed by the Issuer by first class mail, postage prepaid, or delivered electronically if held by the Depository, at least 30 but not more than execution 60 days before the purchase date to each holder of a definitive agreement for the relevant Asset Sale) and deem the amount so invested Notes at such holder’s registered address. If any Note is to be applied pursuant to and purchased in accordance with clause (b)(ii) above with respect part only, any notice of purchase that relates to such Asset SaleNote shall state the portion of the principal amount thereof that has been or is to be purchased.
Appears in 1 contract
Asset Sales. (a) Bidco Holdings shall not, and shall not permit any of its Restricted Subsidiaries to, consummate cause or make an Asset Sale, unless:
unless (ix) Bidco Holdings or such any of its Restricted SubsidiarySubsidiaries, as the case may be, receives consideration at the time of such Asset Sale at least equal to the Fair Market Value (as determined at in good faith by the time of contractually agreeing to such Asset SaleCompany) of the assets sold or otherwise disposed of; and
of and (iiy) except in the case of a Permitted Asset Swap, if the property or assets sold or otherwise disposed of have a Fair Market Value in excess of the greater of $375,000,000 and 50% of Consolidated EBITDA for the most recently ended Test Period at the time of such disposition, calculated on a Pro Forma Basis, at least 75% of the consideration therefor received by Bidco Holdings or such Restricted Subsidiary, as the case may be, is in the form of cash or Cash Equivalents; provided that the amount of:
(Ai) any liabilities, contingent or otherwise, of Bidco liabilities (as shown on Holdings' or such Restricted Subsidiary, 's most recent balance sheet or in the notes thereto) of Holdings or any Restricted Subsidiary of Holdings (other than liabilities that are by their terms subordinated to the Secured Obligations or Securities) that are owed to Bidco or a Restricted Subsidiary that (x) are assumed by the transferee of any such assets (or a third party in connection with such transfer) or (y) are otherwise cancelled or terminated in connection with the transaction with such transferee (other than intercompany debt owed to Bidco or its Restricted Subsidiaries) and, in each case, for which Bidco and all of its Restricted Subsidiaries have been validly released;assets,
(Bii) any securities, notes or other obligations or other securities or assets received by Bidco Holdings or such Restricted Subsidiary of Holdings from such transferee that are converted by Bidco Holdings or such Restricted Subsidiary of Holdings into cash or Cash Equivalents within 180 days of the receipt thereof (to the extent of the cash or Cash Equivalents received) within 180 days following the closing of such Asset Sale;), and
(C) Indebtedness of any Restricted Subsidiary that ceases to be a Restricted Subsidiary as a result of such Asset Sale (other than intercompany debt owed to Bidco or any Restricted Subsidiary), to the extent that Bidco and each other Restricted Subsidiary are released from any guarantee of payment of the principal amount of such Indebtedness in connection with such Asset Sale in accordance with the terms of this Agreement,
(D) consideration consisting of Indebtedness of a Borrower or a Guarantor (other than intercompany debt owed to Bidco or any Restricted Subsidiary and other than Subordinated Indebtedness) received after the Effective Date from Persons who are not Bidco, Holdings or any Restricted Subsidiary;
(Eiii) any Designated Non-cash Consideration received by Bidco Holdings or such any of its Restricted Subsidiary Subsidiaries in such Asset Sale having an aggregate Fair Market Value Value, taken together with all other Designated Non-cash Consideration received pursuant to this clause (Eiii) that is at that time outstanding, not to exceed the greater of $225,000,000 and 301% of Consolidated EBITDA for the most recently ended Test Period Total Assets and $50 million at the time of the receipt of such Designated Non-cash Consideration, calculated on a Pro Forma Basis Consideration (with the Fair Market Value of each such item of Designated Non-cash Consideration being measured pursuant to this clause (E) at Bidco’s option, either at the time of contractually agreeing to such Asset Sale or at the time received and, in either case, and without giving effect to subsequent changes in value); and
(F) any Investment, Capital Stock, assets, property or capital or other expenditure of the kind referred to in Section 6.04(b)(ii) shall be deemed to be Cash Equivalents for the purposes of this provision and for no other purposeSection 4.06(a).
(b) Within the Reinvestment Period 365 days after Bidco’s Holdings' or any Restricted Subsidiary’s Subsidiary of Holdings' receipt of the Net Proceeds of any Asset Sale, Bidco Holdings or such Restricted Subsidiary shall may apply an amount equal to the Net Proceeds from such Asset Sale,, at its option:
(i) to permanently reduce Obligations under the Credit Agreement (Aand, in the case of revolving Obligations, to correspondingly reduce commitments with respect thereto) to prepay Loans or other Pari Passu Indebtedness (provided that if the Company or any Guarantor shall so reduce Obligations under other Pari Passu Indebtedness, the Company shall equally and ratably reduce Obligations under the Securities by making an offer (in accordance with Section 2.10(cthe 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 Securities) or (B) Indebtedness of a Restricted Subsidiary that is not a Guarantor, in each case other than Indebtedness owed to the extent not required to prepay Loans pursuant to Section 2.10(c), to be retained by Bidco and/or Restricted Subsidiaries; orHoldings or an Affiliate of Holdings,
(ii) to make investments an investment in Bidco and its Subsidiaries; provided that Bidco and the Restricted Subsidiaries will be deemed to have complied with this clause any one or more businesses (ii) if and to the extent that, within the Reinvestment Period after the Asset Sale that generated the Net Proceeds, Bidco or such Restricted Subsidiary has entered into and not abandoned or rejected a binding agreement or letter of intent to consummate any such investment described in this clause (ii) 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 such commitment is later cancelled or terminated for any reason before the Net Proceeds are applied in connection therewith, Bidco or such Restricted Subsidiary enters into another Acceptable Commitment (a “Second Commitment”) within 180 days of such cancellation or termination; provided that if any Second Commitment such investment is later cancelled or terminated for any reason before in the form of the acquisition of Capital Stock of a Person, such Net Proceeds are applied, then Bidco or acquisition results in such Person becoming a Restricted Subsidiary shall prepay the Loans of Holdings), or capital expenditures, in accordance with Section 2.10(c).each case used or useful in a Similar Business, and/or
(ciii) 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), properties or assets that replace the properties and assets that are the subject of such Asset Sale. Pending the final application of any such Net Proceeds, Holdings or such Restricted Subsidiary of Holdings may temporarily reduce Indebtedness under a revolving credit facility, if any, or otherwise invest such Net Proceeds pursuant to 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 covenant, the holder Section 4.06(b) (it being understood that any portion of such Net Proceeds used to make an offer to purchase Securities, as described in clause (i) above, shall be deemed to have been invested whether or not such offer is accepted) shall be deemed to constitute "Excess Proceeds." When the aggregate amount of Excess Proceeds exceeds $20 million, the Company shall make an offer to all Holders of Securities (an "Asset Sale Offer") to purchase the maximum principal amount of Securities that is an integral multiple of $1,000 or (euro)1,000, as applicable, that may apply 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 Net 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 temporarily within ten Business Days after the date that Excess Proceeds exceeds $20 million by mailing the notice required pursuant to reduce Indebtedness outstanding the terms of Section 4.06(f), with a copy to the Trustee. To the extent that the aggregate amount of Securities tendered pursuant to an Asset Sale Offer is less than the Excess Proceeds, the Company may use any remaining Excess Proceeds for general corporate purposes. If the aggregate principal amount of Securities surrendered by Holders thereof exceeds the amount of Excess Proceeds, the Trustee shall select the Securities to be purchased in the manner described in Section 4.06(e). Upon completion of any such Asset Sale Offer, the amount of Excess Proceeds shall be reset at zero.
(c) The Company shall comply with the requirements of Rule 14e-1 under the Revolving Facility or Exchange Act and any other revolving credit facility securities laws and regulations to the extent such laws or otherwise use such Net Proceeds 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 manner 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 prohibited be deemed to have breached its obligations described in this Indenture by this Agreement. Bidco or any Restricted Subsidiaryvirtue 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 case may beamount of the Excess Proceeds, may elect to invest in Bidco and its Subsidiaries prior to receiving (ii) the allocation of the Net Proceeds attributable from the Asset Sales pursuant to any given which such Asset Sale Offer is being made and (provided iii) the compliance of such allocation with the provisions of Section 4.06(b). On such date, the Company shall also irrevocably deposit with the Trustee or with a paying agent (or, if the Company or a Wholly Owned Restricted Subsidiary is acting as a Paying Agent, segregate and hold in trust) an amount equal to the Excess Proceeds to be invested in Cash Equivalents, as directed in writing by the Company, and to be held for payment in accordance with the provisions of this Section 4.06. Upon the expiration of the period for which the Asset Sale Offer remains open (the "Offer Period"), the Company shall deliver to the Trustee for cancellation the Securities or portions thereof that have been properly tendered to and are to be accepted by the Company. The Trustee (or a Paying Agent, if not the Trustee) shall, on the date of purchase, mail or deliver payment to each tendering Holder in the amount of the purchase price. In the event that the Excess Proceeds delivered by the Company to the Trustee is greater than the purchase price of the Securities tendered, the Trustee shall deliver the excess to the Company immediately after the expiration of the Offer Period for application in accordance with Section 4.06.
(e) Holders electing to have a Security purchased shall be required to surrender the Security, with an appropriate form duly completed, to the Company at the address specified in the notice at least three Business Days prior to the purchase date. Holders shall be entitled to withdraw their election if the Trustee or the Company receives not later than one Business Day prior to the Purchase Date, a telegram, telex, facsimile transmission or letter setting forth the name of the Holder, the principal amount of the Security which was delivered by the Holder for purchase and a statement that such investment Holder is withdrawing his election to have such Security purchased. If at the end of the Offer Period more Securities are tendered pursuant to an Asset Sale Offer than the Company is required to purchase, selection of such Securities for purchase shall be made by the Trustee in compliance with the requirements of the principal national securities exchange, if any, on which such Securities are listed, or if such Securities are not so listed, on a pro rata basis, by lot or by such other method as the Trustee shall deem fair and appropriate (and in such manner as complies with applicable legal requirements); provided that no earlier Dollar Securities of $1,000 or less or Euro Securities of (euro)1,000 or less shall be purchased in part.
(f) Notices of an Asset Sale Offer shall be mailed by first class mail, postage prepaid, at least 30 but not more than execution 60 days before the purchase date to each Holder of a definitive agreement for the relevant Asset Sale) and deem the amount so invested Securities at such Holder's registered address. If any Security is to be applied pursuant to and purchased in accordance with clause (b)(ii) above with respect part only, any notice of purchase that relates to such Asset SaleSecurity shall state the portion of the principal amount thereof that is to be purchased. So long as the Securities are listed on the Luxembourg Stock Exchange, such notices shall also be published in a Luxembourg newspaper of general circulation.
(g) A new Security in principal amount equal to the unpurchased portion of any Security purchased in part shall be issued in the name of the Holder thereof upon cancellation of the original Security. On and after the purchase date, unless the Company defaults in payment of the purchase price, interest shall cease to accrue on Securities or portions thereof purchased.
Appears in 1 contract
Samples: Indenture (Nalco Energy Services Equatorial Guinea LLC)
Asset Sales. (a) Bidco The Company shall not, and shall not permit any of its Restricted Subsidiaries to, consummate cause or make an Asset Sale, unless:
unless (ix) Bidco the Company or such any of its Restricted SubsidiarySubsidiaries, as the case may be, receives consideration at the time of such Asset Sale at least equal to the Fair Market Value (as determined at in good faith by the time of contractually agreeing to such Asset SaleCompany) of the assets sold or otherwise disposed of; and
, and (iiy) except in the case of a Permitted Asset Swap, if the property or assets sold or otherwise disposed of have a Fair Market Value in excess of the greater of $375,000,000 and 50% of Consolidated EBITDA for the most recently ended Test Period at the time of such disposition, calculated on a Pro Forma Basis, at least 75% of the consideration therefor received by Bidco the Company or such Restricted Subsidiary, as the case may be, is in the form of cash or Cash Equivalents; provided that the amount of:
(Ai) any liabilities, contingent or otherwise, of Bidco liabilities (as shown on the Company’s or such Restricted Subsidiary, ’s most recent balance sheet or in the notes thereto) of the Company or any Restricted Subsidiary of the Company (other than liabilities that are by their terms subordinated to the Secured Obligations or Securities) that are owed to Bidco or a Restricted Subsidiary that (x) are assumed by the transferee of any such assets (or a third party in connection with such transfer) or (y) are otherwise cancelled or terminated in connection with the transaction with such transferee (other than intercompany debt owed to Bidco or its Restricted Subsidiaries) and, in each case, for which Bidco and all of its Restricted Subsidiaries have been validly released;assets,
(Bii) any securities, notes or other obligations or other securities or assets received by Bidco the Company or such Restricted Subsidiary of the Company from such transferee that are converted by Bidco the Company or such Restricted Subsidiary of the Company into cash or Cash Equivalents within 180 days of the receipt thereof (to the extent of the cash or Cash Equivalents received) within 180 days following the closing of such Asset Sale;), and
(C) Indebtedness of any Restricted Subsidiary that ceases to be a Restricted Subsidiary as a result of such Asset Sale (other than intercompany debt owed to Bidco or any Restricted Subsidiary), to the extent that Bidco and each other Restricted Subsidiary are released from any guarantee of payment of the principal amount of such Indebtedness in connection with such Asset Sale in accordance with the terms of this Agreement,
(D) consideration consisting of Indebtedness of a Borrower or a Guarantor (other than intercompany debt owed to Bidco or any Restricted Subsidiary and other than Subordinated Indebtedness) received after the Effective Date from Persons who are not Bidco, Holdings or any Restricted Subsidiary;
(Eiii) any Designated Non-cash Consideration received by Bidco the Company or such any of its Restricted Subsidiary Subsidiaries in such Asset Sale having an aggregate Fair Market Value Value, taken together with all other Designated Non-cash Consideration received pursuant to this clause (Eiii) that is at that time outstanding, not to exceed the greater of $225,000,000 and 30% of Consolidated EBITDA for the most recently ended Test Period 20.0 million at the time of the receipt of such Designated Non-cash Consideration, calculated on a Pro Forma Basis Consideration (with the Fair Market Value of each such item of Designated Non-cash Consideration being measured pursuant to this clause (E) at Bidco’s option, either at the time of contractually agreeing to such Asset Sale or at the time received and, in either case, and without giving effect to subsequent changes in value); and
(F) any Investment, Capital Stock, assets, property or capital or other expenditure of the kind referred to in Section 6.04(b)(ii) shall be deemed to be Cash Equivalents for the purposes of this provision and for no other purposeSection 4.06(a).
(b) Within 365 days after the Reinvestment Period after BidcoCompany’s or any Restricted SubsidiarySubsidiary of the Company’s receipt of the Net Proceeds of any Asset Sale, Bidco the Company or such Restricted Subsidiary shall of the Company may apply an amount equal to the Net Proceeds from such Asset Sale,, at its option:
(i) to permanently reduce Obligations under the Credit Agreement (Aand, in the case of revolving Obligations, to correspondingly reduce commitments with respect thereto) to prepay Loans 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 Section 2.10(cthe 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 (B) Indebtedness of a Restricted Subsidiary that is not a Guarantor, in each case other than Indebtedness owed to the extent not required to prepay Loans pursuant to Section 2.10(c), to be retained by Bidco and/or Restricted Subsidiaries; orCompany 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 investments an investment in Bidco 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 its Subsidiariesassets that are the subject of such Asset Sale;
(iv) to make a capital expenditure; provided that Bidco (x) in the case of Section 4.06(b)(ii), (iii) and the Restricted Subsidiaries will (iv), a binding commitment shall be deemed to have complied with this clause (ii) if and to the extent that, within the Reinvestment Period after the Asset Sale that generated treated as a permitted application of the Net Proceeds, Bidco or such Restricted Subsidiary has entered into and not abandoned or rejected a binding agreement or letter of intent to consummate any such investment described in this clause (ii) with Proceeds from the good faith expectation that such Net Proceeds will be applied to satisfy such commitment within 180 days date of such commitment (an “Acceptable Commitment”) and, (y) in the event any such binding commitment is later cancelled or terminated for any reason before the Net Proceeds are applied in connection therewith, Bidco or such Restricted Subsidiary enters into another Acceptable Commitment (a “Second Commitment”) within 180 days of such cancellation or termination; provided that if any Second Commitment is later cancelled canceled or terminated for any reason before such Net Proceeds are so applied, then Bidco the Company or such Restricted Subsidiary shall prepay enters into another binding commitment within nine months of such cancellation or termination of the Loans in accordance 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 Section 2.10(c).
(c) respect to each Asset Sale. Pending the final application of any such Net Proceeds pursuant to this covenantProceeds, the holder Company or such Restricted Subsidiary of such Net Proceeds the Company may apply such Net Proceeds temporarily to reduce Indebtedness outstanding under the Revolving Facility or any other a revolving credit facility facility, if any, or otherwise use invest such Net Proceeds in any manner that is not prohibited by this AgreementIndenture. Bidco or Any Net Proceeds from any Restricted SubsidiaryAsset Sale that are not applied as provided and within the time period set forth in the first sentence of this Section 4.06(b) (it being understood that any portion of such Net Proceeds used to make an offer to purchase Securities, as described in clause (i) above, shall be deemed to have been invested whether or not such offer is accepted) shall be deemed to constitute “Excess Proceeds.” When the case 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 bebe 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 elect be provided for by the terms of such Pari Passu Indebtedness), to invest the date fixed for the closing of such offer, in Bidco 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 Subsidiaries prior 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 receiving 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 attributable from the Asset Sales pursuant to any given which such Asset Sale (provided that such investment shall be Offer is being made no earlier than execution of a definitive agreement for the relevant Asset Sale) and deem the amount so invested to be applied pursuant to and in accordance with clause (b)(ii) above with respect to such Asset Sale.and
Appears in 1 contract
Asset Sales. (a) Bidco The Company shall not, and shall not permit any of its Restricted Subsidiaries to, consummate an Asset Sale, unless:
Sale unless (i) Bidco the Company or such the applicable Restricted Subsidiary, as the case may be, receives consideration at the time of such Asset Sale at least equal to the Fair Market Value (as determined at the time of contractually agreeing to such Asset Sale) fair market value of the assets sold or otherwise disposed ofof (as determined in good faith by the Company); and
(ii) except in the case of a Permitted Asset Swap, if the property or assets sold or otherwise disposed of have a Fair Market Value in excess of the greater of $375,000,000 and 50% of Consolidated EBITDA for the most recently ended Test Period at the time of such disposition, calculated on a Pro Forma Basis, at least 75% of the consideration therefor received by Bidco the Company or such the Restricted Subsidiary, as the case may be, is from such Asset Sale shall be in the form of cash or Cash Equivalents; provided that the amount of:
: (Aa) any liabilities, contingent or otherwise, of Bidco 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 Secured Obligations or Notes) that are owed to Bidco or a Restricted Subsidiary that (x) are assumed by the transferee of any such assets assets; (or a third party in connection with such transfer) or (y) are otherwise cancelled or terminated in connection with the transaction with such transferee (other than intercompany debt owed to Bidco or its Restricted Subsidiaries) and, in each case, for which Bidco and all of its Restricted Subsidiaries have been validly released;
(Bb) any securities, notes or other obligations or assets received by Bidco the Company or any such Restricted Subsidiary from such transferee that are converted by Bidco the Company or such Restricted Subsidiary into cash or Cash Equivalents within 180 days of the receipt thereof (to the extent of the cash or Cash Equivalents received) within 180 days following the closing of such Asset Sale;
); and (C) Indebtedness of any Restricted Subsidiary that ceases to be a Restricted Subsidiary as a result of such Asset Sale (other than intercompany debt owed to Bidco or any Restricted Subsidiary), to the extent that Bidco and each other Restricted Subsidiary are released from any guarantee of payment of the principal amount of such Indebtedness in connection with such Asset Sale in accordance with the terms of this Agreement,
(D) consideration consisting of Indebtedness of a Borrower or a Guarantor (other than intercompany debt owed to Bidco or any Restricted Subsidiary and other than Subordinated Indebtedness) received after the Effective Date from Persons who are not Bidco, Holdings or any Restricted Subsidiary;
(Ec) any Designated Non-cash Consideration received by Bidco the Company or such any of its Restricted Subsidiary Subsidiaries in such Asset Sale having an aggregate Fair Market Value fair market value, taken together with all other Designated Non-cash Consideration received pursuant to this clause (Ec) after December 14, 2010 that is at that time outstanding, not to exceed the greater of $225,000,000 150 million and 305% of Consolidated EBITDA for the most recently ended Test Period Total Assets at the time of the receipt of such Designated Non-cash Consideration, calculated on a Pro Forma Basis Consideration (with the Fair Market Value fair market value of each such item of Designated Non-cash Consideration being measured pursuant to this clause (E) at Bidco’s option, either at the time of contractually agreeing to such Asset Sale or at the time received and, in either case, and without giving effect to subsequent changes in value), 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; andand (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
(FA) to prepay any InvestmentSenior Debt or Indebtedness of a Restricted Subsidiary that is neither the Issuer nor a Guarantor and, Capital Stockin the case of any such Indebtedness under any revolving credit facility, assets, property effect a corresponding reduction in the availability under such revolving credit facility (or capital or other expenditure effect a permanent reduction in the availability under such revolving credit facility regardless of the kind referred fact that no prepayment is required in order to do so (in Section 6.04(b)(iiwhich 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 Cash Equivalents for purposes of this provision and for no other purpose.
(b) Within the Reinvestment Period after Bidco’s or any Restricted Subsidiary’s receipt of the Net Proceeds of any Asset Sale, Bidco or such Restricted Subsidiary shall apply an amount equal a reference to the Net Proceeds from 121st day after the date on which such Asset Sale,
binding agreement is entered into (ibut only if such 121st day occurs later than such 546th day)) (A) to prepay Loans or Indebtedness in accordance with Section 2.10(c) or (B) to the extent not required to prepay Loans pursuant to Section 2.10(c), to be retained by Bidco and/or Restricted Subsidiaries; or
(iiC) to make investments in Bidco a combination of prepayment and its Subsidiaries; provided that Bidco investment permitted by the foregoing clauses (iii)(A) and the Restricted Subsidiaries will be deemed to have complied with this clause (ii) if and to the extent that, within the Reinvestment Period after the Asset Sale that generated the Net Proceeds, Bidco or such Restricted Subsidiary has entered into and not abandoned or rejected a binding agreement or letter of intent to consummate any such investment described in this clause (ii) 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 such commitment is later cancelled or terminated for any reason before the Net Proceeds are applied in connection therewith, Bidco or such Restricted Subsidiary enters into another Acceptable Commitment (a “Second Commitment”) within 180 days of such cancellation or termination; provided that if any Second Commitment is later cancelled or terminated for any reason before such Net Proceeds are applied, then Bidco or such Restricted Subsidiary shall prepay the Loans in accordance with Section 2.10(ciii)(B).
(c) . 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 pursuant to this covenantOffer Trigger Date”), the holder such aggregate amount of Net Cash Proceeds which have not been applied on or before such Net Proceeds may apply such Offer Trigger Date as permitted in clauses (iii)(A), (iii)(B) and (iii)(C) of the next preceding sentence (each a “Net Proceeds temporarily Offer Amount”) shall be applied by the Company or such Restricted Subsidiary to reduce Indebtedness outstanding under make an offer to purchase (the Revolving Facility or “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 revolving credit facility Senior Subordinated Debt of the Company or otherwise use 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 and Additional Amounts, 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 manner not prohibited time any non-cash consideration (including any Designated Non-cash Consideration) received by this Agreement. Bidco the Company or any Restricted SubsidiarySubsidiary 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 elect be deferred until such time as such Net Proceeds Offer Amount plus the aggregate amount of all Net Proceeds Offer Amounts arising subsequent to invest in Bidco and its Subsidiaries prior to receiving the Net Proceeds attributable Offer Trigger Date relating to any given 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 investment Net Proceeds Offer, the Net Proceeds Offer Amount shall be made no earlier than execution reset at zero. The Issuer and the Company shall comply with the requirements of a definitive agreement for Rule 14e-1 under the relevant Asset Sale) Exchange Act and deem any other securities laws and regulations thereunder to the amount so invested to be applied 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 Issuer and in accordance the Company shall comply with clause (b)(ii) above with respect the applicable securities laws and regulations and shall not be deemed to such Asset Salehave breached its obligations under this Section 4.10 by virtue thereof.
Appears in 1 contract
Samples: Indenture (TransDigm Group INC)
Asset Sales. (a) Bidco shall The Issuers will not, and shall will not permit any of its Restricted Subsidiaries Subsidiary to, consummate cause or make an Asset Sale, Sale unless:
(i) Bidco an Issuer or such a Restricted Subsidiary, as the case may be, receives consideration at the time of such Asset Sale at least equal to the Fair Market Value (as determined at in good faith by the time of contractually agreeing to such Asset SaleIssuers) of the assets sold or otherwise disposed of; , and
(ii) except in the case of a Permitted Asset Swap, if the property or assets sold or otherwise disposed of have a Fair Market Value in excess of the greater of $375,000,000 and 50% of Consolidated EBITDA for the most recently ended Test Period at the time of such disposition, calculated on a Pro Forma Basis, at least 75% of the consideration therefor received by Bidco such Issuer or such Restricted Subsidiary, as the case may be, is in the form of cash or Cash Equivalents; provided that the amount of:
(A) any liabilities, contingent or otherwise, of Bidco liabilities (as shown on such Issuer’s or such Restricted Subsidiary, ’s most recent balance sheet or in the notes thereto) of such Issuer or any Restricted Subsidiary (other than liabilities that are by their terms subordinated to the Secured Obligations or Notes) that are owed to Bidco or a Restricted Subsidiary that (x) are assumed by the transferee of any such assets (or a third party in connection with such transfer) or (y) are otherwise cancelled or terminated in connection with the transaction with such transferee (other than intercompany debt owed to Bidco or its Restricted Subsidiaries) and, in each case, for which Bidco and all of its Restricted Subsidiaries have been validly released;assets,
(B) any securities, notes or other obligations or other securities or assets received by Bidco such Issuer or such Restricted Subsidiary from such transferee that are converted by Bidco such Issuer or such Restricted Subsidiary into cash or Cash Equivalents within 180 days of the receipt thereof (to the extent of the cash or Cash Equivalents received) within 180 days following the closing of such Asset Sale;),
(C) Indebtedness of any Restricted Subsidiary that ceases to be a Restricted Subsidiary as a result of such Asset Sale (other than intercompany debt owed to Bidco or any Restricted Subsidiary), to the extent that Bidco and each other Restricted Subsidiary are released from any guarantee of payment of the principal amount of such Indebtedness in connection with such Asset Sale in accordance with the terms of this Agreement,
(D) consideration consisting of Indebtedness of a Borrower or a Guarantor (other than intercompany debt owed to Bidco or any Restricted Subsidiary and other than Subordinated Indebtedness) received after the Effective Date from Persons who are not Bidco, Holdings or any Restricted Subsidiary;
(E) any Designated Non-cash Consideration received by Bidco such Issuer or such Restricted Subsidiary in such Asset Sale having an aggregate Fair Market Value Value, taken together with all other Designated Non-cash Consideration received pursuant to this clause (EC) that is at that time outstanding, not to exceed the greater of $225,000,000 and 302.5% of Consolidated EBITDA for the most recently ended Test Period Total Assets and $50.0 million at the time of the receipt of such Designated Non-cash Consideration, calculated on a Pro Forma Basis Consideration (with the Fair Market Value of each such item of Designated Non-cash Consideration being measured pursuant to this clause (E) at Bidco’s option, either at the time of contractually agreeing to such Asset Sale or at the time received and, in either case, and without giving effect to subsequent changes in value); , and
(FD) any Investment, Capital Stock, assets, non-cash consideration received by such Issuer or such Restricted Subsidiary in connection with the sale of unimproved real property or capital or other expenditure of owned by the kind Issuers (taken together) on the Issue Date (such non-cash consideration being referred to in Section 6.04(b)(iiherein as “Land Sale Non-cash Consideration”) shall be deemed to be Cash Equivalents for the purposes of this provision and for no other purposeSection 4.13(a).
(b) Within the Reinvestment Period 395 days after Bidcoan Issuer’s or any a Restricted Subsidiary’s receipt of the Net Proceeds of from any Asset Sale, Bidco such Issuer or such Restricted Subsidiary shall may apply an amount equal to the Net Proceeds from such Asset Sale,, at its option:
(i) to permanently reduce Obligations under the Credit Agreement (Aand, in the case of revolving Obligations, to correspondingly reduce commitments with respect thereto) to prepay Loans or Indebtedness of a Restricted Subsidiary, in each case other than Indebtedness owed to the Issuers or an Affiliate of the Issuers or Pari Passu Indebtedness; provided that if the Issuers shall so reduce Pari Passu Indebtedness, they will equally and ratably make an Asset Sale Offer to all Holders of Notes as set forth in the following paragraph); provided that, if an offer to purchase any Indebtedness of UCDP or any Restricted Subsidiary is made in accordance with Section 2.10(c) or (B) 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 required accepted by the holders thereof, and no Net Proceeds in the amount of such offer will be deemed to prepay Loans pursuant to Section 2.10(c), to be retained by Bidco and/or Restricted Subsidiaries; orexist following such offer,
(ii) to make investments an investment in Bidco and its Subsidiaries; any one or more businesses (provided that Bidco and the Restricted Subsidiaries will be deemed to have complied with this clause (ii) if and to the extent that, within the Reinvestment Period after the Asset Sale that generated the Net Proceeds, Bidco or such Restricted Subsidiary has entered into and not abandoned or rejected a binding agreement or letter of intent to consummate any such investment described in this clause any business may be in the form of the acquisition of Capital Stock so long as it results in the Issuers (iitaken together) with or a Restricted Subsidiary, as the good faith expectation case may be, owning substantially all the Capital Stock of such business), 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 such Net Proceeds will investment in any business may be applied to satisfy such commitment within 180 days in the form of the acquisition of Capital Stock so long as it results in the Issuers (taken together) or a Restricted Subsidiary, as the case may be, owning substantially all the Capital Stock of such commitment (an “Acceptable Commitment”) andbusiness), in properties or assets that replace the event any such commitment is later cancelled or terminated for any reason before properties and assets that are the Net Proceeds are applied in connection therewith, Bidco or such Restricted Subsidiary enters into another Acceptable Commitment (a “Second Commitment”) within 180 days subject of such cancellation or termination; provided that if any Second Commitment is later cancelled or terminated for any reason before such Net Proceeds are applied, then Bidco or such Restricted Subsidiary shall prepay the Loans in accordance with Section 2.10(c)Asset Sale.
(c) Pending the final application of any such Net Proceeds, the Issuers or such Restricted Subsidiary may temporarily reduce Indebtedness under a revolving credit facility, if any, or otherwise invest such Net Proceeds pursuant to 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 covenant, the holder paragraph (it being understood that any portion of such Net Proceeds used to make an offer to purchase Notes, as described in clause (b)(i) above, 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 Issuers shall make an offer to purchase, prepay or redeem (an “Asset Sale Offer”) on a pro rata basis the maximum principal amount of Notes and other Pari Passu Indebtedness that may apply be purchased out of such Net Excess Proceeds temporarily to reduce Indebtedness outstanding under the Revolving Facility or (i) all Holders of Notes and (ii) all holders of any other revolving credit facility Pari Passu Indebtedness of the Issuers on the terms and to the extent contemplated by the provisions governing such Pari Passu Indebtedness. Such Asset Sale Offer will be at an offer price in cash (A), in the case of the Notes, of 100% of the principal amount of the Notes, plus accrued and unpaid interest thereon to the date of repurchase (subject to the right of Holders of record on a record date to receive interest on the relevant interest payment date in accordance with the procedures set forth in this Indenture) and (B), in the case of other Pari Passu Indebtedness of the Issuers, sufficient to comply with the provisions governing such Pari Passu Indebtedness of the Issuers (provided that in no event shall the Issuers offer to purchase Pari Passu Indebtedness at a purchase price in excess of 100% of its principal amount, plus accrued and unpaid interest thereon). 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 Issuers may use any remaining Excess Proceeds for general corporate purposes. If the aggregate principal amount of Notes surrendered by Holders thereof exceeds the pro rata amount of Excess Proceeds to be used to purchase the Notes, the Trustee shall select the Notes 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 Issuers will commence an Asset Sale Offer with respect to Excess Proceeds within ten Business Days after the date that Excess Proceeds exceeds $20.0 million. The Asset Sale Offer will remain open for a period of 20 Business Days following its commencement, except to the extent that a longer period is required by applicable law (the “Asset Sale Offer Period”). No later than five Business Days after the termination of the Asset Sale Offer Period (the “Asset Sale Purchase Date”), the Issuers will repurchase the principal amount of Notes and Pari Passu Indebtedness required to be purchased pursuant to this covenant (the “Asset Sale Offer Amount”) or, if less than the Asset Sale Offer Amount has been so validly tendered, all Notes and Pari Passu Indebtedness validly tendered in response to the Asset Sale Offer.
(e) Upon the commencement of an Asset Sale Offer, the Issuers shall send, by first class mail, at least 30 but not more than 60 days before the Asset Sale Purchase Date, a notice to the Trustee and to each Holder at its registered address. The notice shall contain all instructions and materials necessary to enable such Holder to tender Notes pursuant to the Asset Sale Offer. Any Asset Sale Offer shall be made to all Holders. The notice, which shall govern the terms of the Asset Sale Offer, shall state:
(i) that the Asset Sale Offer is being made pursuant to this Section 4.13;
(ii) the purchase price (including the amount of accrued interest) and the Asset Sale Purchase Date;
(iii) that any Note not tendered will continue to accrue interest;
(iv) that, unless the Issuers default in making payment therefor, any Note accepted for payment pursuant to the Asset Sale Offer shall cease to accrue interest after the Asset Sale Payment Date;
(v) that Holders electing to have a Note purchased pursuant to an 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, to the Paying Agent at the address specified in the notice prior to the close of business on the third Business Day prior to the Asset Sale Payment Date;
(vi) that Holders will be entitled to withdraw their election if the Paying Agent receives, not later than the second Business Day prior to the Asset Sale Payment Date, a facsimile transmission or otherwise use letter setting forth the name of the Holder, the principal amount of the Notes the Holder delivered for purchase and a statement that such Net Proceeds Xxxxxx is withdrawing his election to have such Note purchased;
(vii) that Holders whose Notes are purchased only in any part will be issued new Notes in a principal amount equal to the unpurchased portion of the Notes surrendered; and
(viii) the circumstances and relevant facts regarding such Asset Sale Offer.
(f) If more Notes are tendered pursuant to the 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 not prohibited as complies with applicable legal requirement); provided that no Notes of $1,000 or less shall be purchased in part. The Issuers will deliver to the Trustee an Officers’ Certificate stating that such Notes or portions thereof were accepted for payment by the Issuers in accordance with the terms of this AgreementSection 4.13 and, in addition, the Issuers will deliver all certificates and Notes required, if any, by the agreements governing the Pari Passu Indebtedness. Bidco The Issuers or any Restricted Subsidiarythe Paying Agent, as the case may be, will promptly (but in any case not later than five Business Days after the termination of the Asset Sale Offer Period) mail or deliver to each tendering Holder of Notes or holder or lender of Pari Passu Indebtedness, as the case may elect be, an amount equal to invest the repurchase price of the Notes or Pari Passu Indebtedness so validly tendered and not properly withdrawn by such Holder or lender, as the case may be, and accepted by the Issuers for purchase, and the Issuers will promptly issue a new Note, and the Trustee, upon delivery of an Officers’ Certificate from the Co-Issuers, will authenticate and mail or deliver such new Note to such Holder, in Bidco and its Subsidiaries prior to receiving the Net Proceeds attributable a principal amount equal to any given unpurchased portion of the Note surrendered; provided, however, that each such new Note will be in a principal amount of $1,000 or an integral multiple of $1,000. In addition, the Issuers will take any and all other actions required by the agreements governing the Pari Passu Indebtedness. Any Note not so accepted will be promptly mailed or delivered by the Issuers to the Holder thereof.
(g) The Co-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 Notes pursuant to an Asset Sale (provided Offer. To the extent that such investment shall the provisions of any securities laws or regulations conflict with the provisions of this Indenture, the Co-Issuers will comply with the applicable securities laws and regulations and will not be made no earlier than execution of a definitive agreement for the relevant Asset Sale) and deem the amount so invested deemed to be applied pursuant to and in accordance with clause (b)(ii) above with respect to such Asset Salehave breached its obligations under this Indenture by virtue thereof.
Appears in 1 contract
Asset Sales. Neither the Company nor any of its Subsidiaries will consummate any Asset Sale unless (a) Bidco 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 Salesell or otherwise dispose of any Equity Interests in YRCMI, unless:
and (iii) Bidco the Company will not permit YRCMI to sell, assign, transfer 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 at the time of contractually agreeing to such Asset Sale) otherwise dispose of the assets sold Indebtedness outstanding under the YRCMI Credit Agreement or otherwise disposed ofany of its rights thereunder.; and
(iif) except in the case no Default or Event of a Permitted Asset Swap, if the property or assets sold or otherwise disposed of have a Fair Market Value in excess of the greater of $375,000,000 Default has occurred and 50% of Consolidated EBITDA for the most recently ended Test Period at the time of such disposition, calculated on a Pro Forma Basis, at least 75% of the consideration therefor received by Bidco or such Restricted Subsidiary, as the case may be, is in the form of cash or Cash Equivalents; provided that the amount of:
(A) any liabilities, contingent or otherwise, of Bidco or such Restricted Subsidiary, other than liabilities that are by their terms subordinated continuing prior to the Secured Obligations or that are owed to Bidco or a Restricted Subsidiary that (x) are assumed by the transferee of any such assets (or a third party in connection with such transfer) or (y) are otherwise cancelled or terminated in connection with the transaction with such transferee (other than intercompany debt owed to Bidco or its Restricted Subsidiaries) and, in each case, for which Bidco and all of its Restricted Subsidiaries have been validly released;
(B) any securities, notes or other obligations or assets received by Bidco or such Restricted Subsidiary from such transferee that are converted by Bidco or such Restricted Subsidiary into cash or Cash Equivalents (to the extent of the cash or Cash Equivalents received) within 180 days following the closing of such Asset Sale;
(C) Indebtedness of any Restricted Subsidiary that ceases to be a Restricted Subsidiary as a result of making such Asset Sale or would arise after giving effect (other than intercompany debt owed including pro forma effect reasonably acceptable to Bidco or any Restricted Subsidiary)the Administrative Agent) thereto; provided that, for the avoidance of doubt, to the extent that Bidco and each other Restricted Subsidiary multiple assets are released from any guarantee of payment of the principal amount of such Indebtedness being sold in connection with such an Asset Sale or series of related Asset Sales, the percentage thresholds referenced in accordance with the terms of this Agreement,
foregoing clauses (Db) consideration consisting of Indebtedness of a Borrower or a Guarantor and (other than intercompany debt owed to Bidco or any Restricted Subsidiary c) and other than Subordinated Indebtedness) received after the Effective Date from Persons who are not Bidco, Holdings or any Restricted Subsidiary;
(E) any Designated Non-cash Consideration received by Bidco or such Restricted Subsidiary in such Asset Sale having an aggregate Fair Market Value taken together with all other Designated Non-cash Consideration received pursuant to this clause (Ed) that is at that time outstanding, not shall be deemed satisfied so long as the aggregate consideration received in respect of such assets pursuant to exceed such Asset Sale(s) equals or exceeds the greater of $225,000,000 and 30% of Consolidated EBITDA for the most recently ended Test Period at the time relevant percentage of the receipt aggregate appraised value of such Designated Non-cash Considerationassets. Notwithstanding the foregoing, calculated on a Pro Forma Basis (with i) the Fair Market Value Company will not, and will not permit any of each such item its Subsidiaries to, sell or otherwise dispose of Designated Non-cash Consideration being measured pursuant any Equity Interests in YRCMI, (ii) the Company will not permit YRCMI to this clause sell, assign, transfer or otherwise dispose of the Indebtedness outstanding under the YRCMI Credit Agreement or any of its rights thereunder and (Eiii) at Bidco’s option, either at the time Company may not consummate the Specified Sale and Leaseback Transaction or the Permitted Disposition unless (i) no Default or Event of contractually agreeing Default has occurred and is continuing prior to making such Asset Sale or at the time received and, in either case, without would arise after giving effect to subsequent changes in value); and
(F) any Investment, Capital Stock, assets, property or capital or other expenditure of the kind referred to in Section 6.04(b)(ii) shall be deemed to be Cash Equivalents for purposes of this provision and for no other purpose.
(b) Within the Reinvestment Period after Bidco’s or any Restricted Subsidiary’s receipt of the Net Proceeds of any Asset Sale, Bidco or such Restricted Subsidiary shall apply an amount equal including pro forma effect reasonably acceptable to the Net Proceeds from such Asset Sale,
(iAdministrative Agent) (A) to prepay Loans or Indebtedness in accordance with Section 2.10(c) or (B) to the extent not required to prepay Loans pursuant to Section 2.10(c), to be retained by Bidco and/or Restricted Subsidiaries; or
thereto and (ii) to make investments in Bidco and its Subsidiaries; provided that Bidco and the Restricted Subsidiaries will be deemed to have complied with this clause (ii) if and to the extent that, within the Reinvestment Period after the such Asset Sale that generated the Net Proceeds, Bidco or such Restricted Subsidiary has entered into is made on an arms-length basis and not abandoned or rejected a binding agreement or letter of intent to consummate any such investment described in this clause (ii) 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 such commitment is later cancelled or terminated for any reason before the Net Proceeds are applied in connection therewith, Bidco or such Restricted Subsidiary enters into another Acceptable Commitment (a “Second Commitment”) within 180 days of such cancellation or termination; provided that if any Second Commitment is later cancelled or terminated for any reason before such Net Proceeds are applied, then Bidco or such Restricted Subsidiary shall prepay the Loans in accordance with Section 2.10(c)100% cash consideration.
(c) 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 the Revolving Facility or any other revolving credit facility or otherwise use such Net Proceeds in any manner not prohibited by this Agreement. Bidco or any Restricted Subsidiary, as the case may be, may elect to invest in Bidco and its Subsidiaries prior to receiving the Net Proceeds attributable to any given Asset Sale (provided that such investment shall be made no earlier than execution of a definitive agreement for the relevant Asset Sale) and deem the amount so invested to be applied pursuant to and in accordance with clause (b)(ii) above with respect to such Asset Sale.
Appears in 1 contract
Samples: Credit Agreement (Yrc Worldwide Inc)
Asset Sales. (a) Bidco The Company shall not, and shall not permit any of its Restricted Subsidiaries to, consummate an Asset Sale, unless:
Sale unless (i) Bidco the Company or such the applicable Restricted Subsidiary, as the case may be, receives consideration at the time of such Asset Sale at least equal to the Fair Market Value (as determined at the time of contractually agreeing to such Asset Sale) fair market value of the assets sold or otherwise disposed ofof (as determined in good faith by the Company); and
(ii) except in the case of a Permitted Asset Swap, if the property or assets sold or otherwise disposed of have a Fair Market Value in excess of the greater of $375,000,000 and 50% of Consolidated EBITDA for the most recently ended Test Period at the time of such disposition, calculated on a Pro Forma Basis, at least 75% of the consideration therefor received by Bidco the Company or such the Restricted Subsidiary, as the case may be, is from such Asset Sale shall be in the form of cash or Cash Equivalents; provided that the amount of:
(Aa) any liabilities, contingent or otherwise, of Bidco 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 Secured Obligations or Notes) that are owed to Bidco or a Restricted Subsidiary that (x) are assumed by the transferee of any such assets assets; (or a third party in connection with such transfer) or (y) are otherwise cancelled or terminated in connection with the transaction with such transferee (other than intercompany debt owed to Bidco or its Restricted Subsidiaries) and, in each case, for which Bidco and all of its Restricted Subsidiaries have been validly released;
(Bb) any securities, notes or other obligations or assets received by Bidco the Company or any such Restricted Subsidiary from such transferee that are converted by Bidco the Company or such Restricted Subsidiary into cash or Cash Equivalents within 180 days of the receipt thereof (to the extent of the cash or Cash Equivalents received) within 180 days following the closing of such Asset Sale;
); and (C) Indebtedness of any Restricted Subsidiary that ceases to be a Restricted Subsidiary as a result of such Asset Sale (other than intercompany debt owed to Bidco or any Restricted Subsidiary), to the extent that Bidco and each other Restricted Subsidiary are released from any guarantee of payment of the principal amount of such Indebtedness in connection with such Asset Sale in accordance with the terms of this Agreement,
(D) consideration consisting of Indebtedness of a Borrower or a Guarantor (other than intercompany debt owed to Bidco or any Restricted Subsidiary and other than Subordinated Indebtedness) received after the Effective Date from Persons who are not Bidco, Holdings or any Restricted Subsidiary;
(Ec) any Designated Non-cash Consideration received by Bidco the Company or such any of its Restricted Subsidiary Subsidiaries in such Asset Sale having an aggregate Fair Market Value fair market value, taken together with all other Designated Non-cash Consideration received pursuant to this clause (Ec) after the Issue Date that is at that time outstanding, not to exceed the greater of $225,000,000 150 million and 305% of Consolidated EBITDA for the most recently ended Test Period Total Assets at the time of the receipt of such Designated Non-cash Consideration, calculated on a Pro Forma Basis Consideration (with the Fair Market Value fair market value of each such item of Designated Non-cash Consideration being measured pursuant to this clause (E) at Bidco’s option, either at the time of contractually agreeing to such Asset Sale or at the time received and, in either case, and without giving effect to subsequent changes in value); and
, shall, in each of (Fa), (b) any Investmentand (c) above, Capital Stock, assets, property be deemed to be cash for the purposes of this provision or capital or other expenditure for purposes of the kind referred 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 Section 6.04(b)(iithe 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 Cash Equivalents for purposes of this provision and for no other purpose.
(b) Within the Reinvestment Period after Bidco’s or any Restricted Subsidiary’s receipt of the Net Proceeds of any Asset Sale, Bidco or such Restricted Subsidiary shall apply an amount equal a reference to the Net Proceeds from 121st day after the date on which such Asset Sale,
binding agreement is entered into (i) (A) to prepay Loans or Indebtedness in accordance with Section 2.10(cbut only if such 121st day occurs later than such 546th day)) or (BC) to a combination of prepayment and investment permitted by the extent not required to prepay Loans pursuant to Section 2.10(cforegoing clauses (iii)(A) and (iii)(B), to be retained by Bidco and/or Restricted Subsidiaries; or
(ii) to make investments in Bidco and its Subsidiaries; provided that Bidco and the Restricted Subsidiaries will be deemed to have complied with this clause (ii) if and to the extent that, within the Reinvestment Period after the Asset Sale that generated the Net Proceeds, Bidco or such Restricted Subsidiary has entered into and not abandoned or rejected a binding agreement or letter of intent to consummate any such investment described in this clause (ii) 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 such commitment is later cancelled or terminated for any reason before the Net Proceeds are applied in connection therewith, Bidco or such Restricted Subsidiary enters into another Acceptable Commitment (a “Second Commitment”) within 180 days of such cancellation or termination; provided that if any Second Commitment is later cancelled or terminated for any reason before such Net Proceeds are applied, then Bidco or such Restricted Subsidiary shall prepay the Loans in accordance with Section 2.10(c).
(c) . 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 pursuant to this covenantOffer Trigger Date”), the holder such aggregate amount of Net Cash Proceeds which have not been applied on or before such Net Proceeds may apply such Offer Trigger Date as permitted in clauses (iii)(A), (iii)(B) and (iii)(C) of the next preceding sentence (each a “Net Proceeds temporarily Offer Amount”) shall be applied by the Company or such Restricted Subsidiary to reduce Indebtedness outstanding under make an offer to purchase (the Revolving Facility or “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 revolving credit facility Senior Subordinated Debt of the Company or otherwise use 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 manner not prohibited time any non-cash consideration (including any Designated Non-cash Consideration) received by this Agreement. Bidco the Company or any Restricted SubsidiarySubsidiary 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 elect be deferred until such time as such Net Proceeds Offer Amount plus the aggregate amount of all Net Proceeds Offer Amounts arising subsequent to invest in Bidco and its Subsidiaries prior to receiving the Net Proceeds attributable Offer Trigger Date relating to any given 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 investment Net Proceeds Offer, the Net Proceeds Offer Amount shall be made no earlier than execution reset at zero. The Company shall comply with the requirements of a definitive agreement for Rule 14e-1 under the relevant Asset Sale) Exchange Act and deem any other securities laws and regulations thereunder to the amount so invested to be applied 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 in accordance with clause (b)(ii) above with respect regulations and shall not be deemed to such Asset Salehave breached its obligations under this Section 4.10 by virtue thereof.
Appears in 1 contract
Samples: Indenture (TransDigm Group INC)
Asset Sales. (a) Bidco MPM shall not, and shall not permit any of its the Restricted Subsidiaries to, consummate cause or make an Asset Sale, unless:
unless (ix) Bidco MPM or such any of the Restricted SubsidiarySubsidiaries, as the case may be, receives consideration at the time of such Asset Sale at least equal to the Fair Market Value (as determined at the time of contractually agreeing to such Asset Salein good faith by MPM) of the assets sold or otherwise disposed of; and
, and (iiy) except in the case of a Permitted Asset Swap, if the property or assets sold or otherwise disposed of have a Fair Market Value in excess of the greater of $375,000,000 and 50% of Consolidated EBITDA for the most recently ended Test Period at the time of such disposition, calculated on a Pro Forma Basis, at least 75% of the consideration therefor received by Bidco MPM or such Restricted Subsidiary, as the case may be, is in the form of cash or Cash Equivalents; provided that the amount of:
(Ai) any liabilities, contingent or otherwise, of Bidco liabilities (as shown on MPM’s or such Restricted Subsidiary, ’s most recent balance sheet or in the notes thereto) of MPM or any Restricted Subsidiary (other than liabilities that are by their terms subordinated to the Secured Obligations Notes or any Note Guarantee) that are owed to Bidco or a Restricted Subsidiary that (x) are assumed by the transferee of any such assets (or a third party in connection with such transfer) or (y) are otherwise cancelled or terminated in connection with the transaction with such transferee (other than intercompany debt owed to Bidco or its Restricted Subsidiaries) and, in each case, for which Bidco and all of its Restricted Subsidiaries have been validly released;assets,
(Bii) any securities, notes or other obligations or other securities or assets received by Bidco MPM or such Restricted Subsidiary from such transferee that are converted by Bidco MPM or such Restricted Subsidiary into cash or Cash Equivalents within 180 days of the receipt thereof (to the extent of the cash or Cash Equivalents received) within 180 days following the closing of such Asset Sale;), and
(C) Indebtedness of any Restricted Subsidiary that ceases to be a Restricted Subsidiary as a result of such Asset Sale (other than intercompany debt owed to Bidco or any Restricted Subsidiary), to the extent that Bidco and each other Restricted Subsidiary are released from any guarantee of payment of the principal amount of such Indebtedness in connection with such Asset Sale in accordance with the terms of this Agreement,
(D) consideration consisting of Indebtedness of a Borrower or a Guarantor (other than intercompany debt owed to Bidco or any Restricted Subsidiary and other than Subordinated Indebtedness) received after the Effective Date from Persons who are not Bidco, Holdings or any Restricted Subsidiary;
(Eiii) any Designated Non-cash Consideration received by Bidco MPM or such any of the Restricted Subsidiary Subsidiaries in such Asset Sale having an aggregate Fair Market Value Value, taken together with all other Designated Non-cash Consideration received pursuant to this clause (Eiii) that is at that time outstanding, not to exceed the greater of $225,000,000 and 303.0% of Consolidated EBITDA for the most recently ended Test Period Total Assets and $70.0 million at the time of the receipt of such Designated Non-cash Consideration, calculated on a Pro Forma Basis Consideration (with the Fair Market Value of each such item of Designated Non-cash Consideration being measured pursuant to this clause (E) at Bidco’s option, either at the time of contractually agreeing to such Asset Sale or at the time received and, in either case, and without giving effect to subsequent changes in value); and
(F) any Investment, Capital Stock, assets, property or capital or other expenditure of the kind referred to in Section 6.04(b)(ii) shall be deemed to be Cash Equivalents for the purposes of this provision and for no other purposeSection 4.06(a).
(b) Within the Reinvestment Period 365 days after BidcoMPM’s or any Restricted Subsidiary’s receipt of the Net Proceeds of any Asset Sale, Bidco MPM or such Restricted Subsidiary shall may apply an amount equal to 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 prepay Loans 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 Section 2.10(cthe 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 (Bb) to repay ABL Obligations (which repayment need not be permanent), to the extent not required the Net Proceeds are from an Asset Sale of ABL Priority Collateral (including indirect Asset Sales of ABL Priority Collateral due to prepay Loans pursuant to Section 2.10(cthe sale of the Capital Stock of a Person), to be retained by Bidco and/or Restricted Subsidiaries; or;
(ii) to make investments an investment in Bidco 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 its Subsidiariesassets 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 Bidco and the Restricted Subsidiaries will be deemed to have complied with this clause (ii) if and to the extent that, within the Reinvestment Period after the Asset Sale that generated the Net Proceeds, Bidco or such Restricted Subsidiary has entered into and not abandoned or rejected a binding agreement or letter of intent to consummate any such investment described in this clause (ii) 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 such binding commitment is later cancelled or terminated for any reason before the Net Proceeds are applied in connection therewith, Bidco or such Restricted Subsidiary enters into another Acceptable Commitment (a “Second Commitment”) within 180 days of such cancellation or termination; provided that if any Second Commitment is later cancelled canceled or terminated for any reason before such Net Proceeds are so applied, then Bidco MPM or such Restricted Subsidiary shall prepay 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 Loans in accordance 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 Section 2.10(c).
(c) respect to each Asset Sale. Pending the final application of any Net Proceeds pursuant to this covenant, the holder of such Net Proceeds Proceeds, MPM or such Restricted Subsidiary may apply such Net Proceeds temporarily to reduce Indebtedness outstanding under the Revolving Facility or any other a revolving credit facility facility, if any, or otherwise use invest such Net Proceeds in any manner not otherwise prohibited by this AgreementIndenture. Bidco or Any Net Proceeds from any Restricted SubsidiaryAsset Sale that are not applied as provided and within the time period set forth in the first sentence of this Section 4.06(b) (it being understood that any portion of such Net Proceeds used to make an offer to purchase 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 case 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 bebe 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 elect be provided for by the terms of such Indebtedness), to invest the date fixed for the closing of such offer, in Bidco 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 Subsidiaries prior 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 receiving 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 attributable from the Asset Sales pursuant to any given 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; provided that no Notes of $2,000 or less shall be purchased in part. Selection of such investment First Priority Lien Obligations or Pari Passu Indebtedness shall be made no earlier 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 execution 60 days before the purchase date to each Holder of a definitive agreement for the relevant Asset Sale) and deem the amount so invested Notes at such Holder’s registered address. If any Note is to be applied pursuant to and purchased in accordance with clause (b)(ii) above with respect part only, any notice of purchase that relates to such Asset SaleNote 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) Bidco The Company shall not, and shall not permit any of its Restricted Subsidiaries to, consummate an Asset Sale, unless:
(i) Bidco the Company or such Restricted Subsidiary, as the case may be, receives consideration at the time of such Asset Sale at least equal to the Fair Market Value (fair market value as determined at in good faith by the time 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; and
(ii) except in the case of a Permitted Asset Swap, if the property or assets sold or otherwise disposed of have a Fair Market Value in excess of the greater of $375,000,000 and 50% of Consolidated EBITDA for the most recently ended Test Period at the time of such disposition, calculated on a Pro Forma Basis, at least 75% of the consideration therefor received by Bidco the Company or such Restricted Subsidiary, as the case may be, is in the form of cash or Cash Equivalents; provided that the amount of:
(Aa) any liabilitiesliabilities (as shown on the Company’s or such Restricted Subsidiary’s most recent balance sheet or in the footnotes thereto, contingent or otherwiseif incurred or accrued subsequent to the date of such balance sheet, such liabilities that would have been 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 Bidco such balance sheet, as determined in good faith by the Company) of the Company or such Restricted Subsidiary, other than liabilities that are by their terms subordinated to the Secured Obligations Securities or the Guarantees, that are owed to Bidco or a Restricted Subsidiary that (x) are assumed by the transferee of any such assets (or a third party in connection with such transfer) or (y) that are otherwise cancelled or terminated in connection with the transaction with such transferee (other than intercompany debt owed to Bidco or its Restricted Subsidiaries) and, in each case, and for which Bidco the Company and all of its Restricted Subsidiaries have been validly released;released by all creditors in writing,
(Bb) any securities, notes or other obligations or assets received by Bidco the Company or such Restricted Subsidiary from such transferee that are converted by Bidco the Company or such Restricted Subsidiary into cash Cash Equivalents, or by their terms are required to be satisfied for Cash Equivalents (to the extent of the cash or Cash Equivalents received) within 180 days following the closing of such Asset Sale;, and
(C) Indebtedness of any Restricted Subsidiary that ceases to be a Restricted Subsidiary as a result of such Asset Sale (other than intercompany debt owed to Bidco or any Restricted Subsidiary), to the extent that Bidco and each other Restricted Subsidiary are released from any guarantee of payment of the principal amount of such Indebtedness in connection with such Asset Sale in accordance with the terms of this Agreement,
(D) consideration consisting of Indebtedness of a Borrower or a Guarantor (other than intercompany debt owed to Bidco or any Restricted Subsidiary and other than Subordinated Indebtedness) received after the Effective Date from Persons who are not Bidco, Holdings or any Restricted Subsidiary;
(Ec) any Designated Non-cash Consideration received by Bidco the Company or such Restricted Subsidiary in such Asset Sale having an aggregate Fair Market Value fair market value, taken together with all other Designated Non-cash Consideration received pursuant to this clause (Ec) that is at that time outstanding, not to exceed the greater of (x) $225,000,000 30.0 million and 30(y) 3.0% of Consolidated EBITDA for the most recently ended Test Period Total Assets at the time of the receipt of such Designated Non-cash Consideration, calculated on a Pro Forma Basis (with the Fair Market Value fair market value of each such item of Designated Non-cash Consideration being measured pursuant to this clause (E) at Bidco’s option, either at the time of contractually agreeing to such Asset Sale or at the time received and, in either case, and without giving effect to subsequent changes in value); and
(F) any Investment, Capital Stock, assets, property or capital or other expenditure of the kind referred to in Section 6.04(b)(ii) shall be deemed to be Cash Equivalents for purposes of this provision Section 4.06(a) and for no other purpose.
(b) Within 365 days after the Reinvestment Period after Bidco’s or any Restricted Subsidiary’s receipt of the any Net Proceeds of any Asset Sale, Bidco the Company or such Restricted Subsidiary shall Subsidiary, at its option, may apply an amount equal to the Net Proceeds from such Asset Sale,
(i) to repay (Aa) Obligations under the Senior Credit Facilities and if the Indebtedness repaid is revolving credit indebtedness, to prepay Loans correspondingly reduce commitments with respect thereto; (b) Obligations under Indebtedness (other than Subordinated Indebtedness) that is secured by a Lien, which Lien is permitted by this Indenture, and if the Indebtedness repaid is revolving credit indebtedness, to correspondingly reduce commitments with respect thereto; (c) Obligations under other Indebtedness (other than Subordinated Indebtedness) (and if the Indebtedness repaid is revolving credit indebtedness, to correspondingly reduce commitments with respect thereto), provided that the Issuers shall equally and ratably reduce Obligations under the Securities as provided under paragraph 5 of the Security through open-market purchases (to the extent such purchases are at or Indebtedness above 100% of the principal amount thereof) or by making an offer (in accordance with Section 2.10(cthe procedures set forth below for an Asset Sale Offer) to all Holders to purchase their Securities 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 (Bd) Indebtedness of a Restricted Subsidiary that is not a Guarantor, other than Indebtedness owed to the extent not required to prepay Loans pursuant to Section 2.10(c), to be retained by Bidco and/or an Issuer or another Restricted Subsidiaries; orSubsidiary;
(ii) to make investments (a) an Investment in Bidco 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) 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
(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, (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; provided that Bidco and that, in the Restricted Subsidiaries will be deemed to have complied with this clause case of clauses (ii) if and to the extent that(iii) above, within the Reinvestment Period after the Asset Sale that generated a binding commitment shall be treated as a permitted application of the Net Proceeds, Bidco Proceeds from the date of such commitment so long as the Company or such other Restricted Subsidiary has entered enters into and not abandoned or rejected a binding agreement or letter of intent to consummate any such investment described in this clause (ii) 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 such commitment Acceptable Commitment is later cancelled or terminated for any reason before the Net Proceeds are applied in connection therewith, Bidco the Company or such Restricted Subsidiary enters into another Acceptable Commitment (a “Second Commitment”) within 180 days of such cancellation or terminationtermination (or, if later, 365 days after the receipt of such Net Proceeds); provided further that if any Second Commitment is later cancelled or terminated for any reason before such Net Proceeds are applied, then Bidco 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(b) (it being understood that any portion of such Restricted Subsidiary Net Proceeds used to make an offer to purchase Securities, as described in clause (i) of this Section 4.06(b), shall prepay be deemed to have been invested whether or not such offer is accepted) will be deemed to constitute “Excess Proceeds.” When the Loans aggregate amount of Excess Proceeds exceeds $25.0 million, the Issuers shall make an offer to all Holders and, at the option of the Issuers, to any holders of any Indebtedness that is pari passu with the Securities (“Pari Passu Indebtedness”) (an “Asset Sale Offer”), to purchase the maximum aggregate principal amount of the Securities and such Pari Passu Indebtedness 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 100% of the accreted value thereof, if less, 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 Pari Passu Indebtedness) 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 with respect to Excess Proceeds within thirty Business Days after the date that Excess Proceeds exceed $25.0 million by sending the notice required pursuant to the terms of this Indenture, with a copy to the Trustee, or otherwise in accordance with the procedures of DTC. 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, subject to compliance with other covenants contained in this Indenture. If the aggregate principal amount of Securities and the Pari Passu Indebtedness surrendered in an Asset Sale Offer exceeds the amount of Excess Proceeds, the Trustee shall select the Securities to be purchased in the manner described in Section 2.10(c3.04. Selection of such Pari Passu Indebtedness will be made pursuant to the terms of such Pari Passu Indebtedness. 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).
(c) . Pending the final application of any Net Proceeds pursuant to this covenantSection 4.06, the holder of such Net Proceeds may apply such Net Proceeds temporarily to reduce Indebtedness outstanding under the Revolving Facility or any other a revolving credit facility or otherwise use invest such Net Proceeds in any manner not prohibited by this AgreementIndenture. Bidco 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 any Restricted Subsidiary, as regulations are applicable in connection with the case may be, may elect repurchase of the Securities pursuant to invest in Bidco and its Subsidiaries prior to receiving the Net Proceeds attributable to any given an Asset Sale (provided Offer. To the extent that such investment 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 made no earlier than execution of a definitive agreement for the relevant Asset Sale) and deem the amount so invested deemed to be applied pursuant to and have breached their obligations described in accordance with clause (b)(ii) above with respect to such Asset Salethis Indenture by virtue thereof.
Appears in 1 contract
Samples: Indenture (PQ Group Holdings Inc.)
Asset Sales. (a) Bidco The Initial Borrower shall not, and shall not permit any of its Restricted Subsidiaries to, consummate cause or make an Asset Sale, unless:
(ia) Bidco the Initial Borrower or such any of its Restricted SubsidiarySubsidiaries, as the case may be, receives consideration at the time of such Asset Sale at least equal to the Fair Market Value (as determined at in good faith by the time of contractually agreeing to such Asset SaleInitial Borrower) of the Equity Interests issued or assets sold or otherwise disposed of;
(b) immediately before and after giving effect to such Asset Sale, no Event of Default has occurred and is continuing or would result therefrom; and
(iic) except in the case of a Permitted Asset Swap, if the property or assets sold or otherwise disposed of have a Fair Market Value in excess of the greater of $375,000,000 and 50% of Consolidated EBITDA for the most recently ended Test Period at the time of such disposition, calculated on a Pro Forma Basis, at least 7575.0% of the consideration therefor therefore received by Bidco the Initial Borrower or such Restricted Subsidiary, as the case may be, is in the form of cash or Cash Equivalents, provided, however, that in the case of Asset Sales involving the disposition of non-core assets (as determined by the Initial Borrower in its good faith judgment provided the value of such non-core assets does not exceed 50% of the consideration payable in connection with such acquisition) acquired as part of any acquisition after the Effective Date, only 50% of the consideration therefor must be in the form of Cash Equivalents; provided provided, further, that the amount of:
(Ai) any liabilities, contingent or otherwise, of Bidco liabilities (as shown on the Initial Borrower’s or such Restricted Subsidiary’s most recent balance sheet or in the notes thereto or, if Incurred, increased or decreased subsequent to the date of such balance sheet, such liabilities that would have been reflected in the Initial Borrower’s or such Restricted Subsidiary’s balance sheet or in the notes thereto if such incurrence, increase or decrease had taken place on the date of such balance sheet, as reasonably determined in good faith by the Initial Borrower) of the Initial Borrower or any Restricted Subsidiary (other than liabilities that are by their terms subordinated to the Secured Obligations or Obligations) that are owed to Bidco or a Restricted Subsidiary that (x) are assumed by the transferee of any such assets (or a third party in connection with on behalf of the transferee) of any such transfer) assets or Equity Interests pursuant to an agreement that releases or indemnifies the Initial Borrower or such Restricted Subsidiary (y) are otherwise cancelled or terminated in connection with a third party on behalf of the transaction with such transferee (other than intercompany debt owed to Bidco or its Restricted Subsidiaries) andtransferee), in each caseas the case may be, for which Bidco and all of its Restricted Subsidiaries have been validly releasedfrom further liability;
(Bii) any securities, notes or other obligations or other securities or assets received by Bidco the Initial Borrower or such Restricted Subsidiary from such transferee that are converted by Bidco the Initial Borrower or such Restricted Subsidiary into cash or Cash Equivalents within 180 days of the receipt thereof (to the extent of the cash or Cash Equivalents received) within 180 days following the closing of such Asset Sale);
(C) Indebtedness of any Restricted Subsidiary that ceases to be a Restricted Subsidiary as a result of such Asset Sale (other than intercompany debt owed to Bidco or any Restricted Subsidiary), to the extent that Bidco and each other Restricted Subsidiary are released from any guarantee of payment of the principal amount of such Indebtedness in connection with such Asset Sale in accordance with the terms of this Agreement,
(D) consideration consisting of Indebtedness of a Borrower or a Guarantor (other than intercompany debt owed to Bidco or any Restricted Subsidiary and other than Subordinated Indebtedness) received after the Effective Date from Persons who are not Bidco, Holdings or any Restricted Subsidiary;
(Eiii) any Designated Non-cash Consideration received by Bidco the Initial Borrower or such any of its Restricted Subsidiary Subsidiaries in such Asset Sale having an aggregate Fair Market Value (being measured at the time received and without giving effect to subsequent changes in value), taken together with all other Designated Non-cash Consideration received pursuant to this clause (Eiii) that is at that time outstanding, not to exceed the greater of $225,000,000 35,000,000 and 3020% of 13452822.12 |US-DOCS\87149920.12138026742.9|| 27955694.v2 Consolidated EBITDA for on a Pro Forma Basis based on the most recently ended Test Period (at the time of the receipt of such Designated Non-cash Consideration, calculated on );
(iv) Indebtedness of any Restricted Subsidiary that is no longer a Pro Forma Basis (with the Fair Market Value Restricted Subsidiary as a result of each such item of Designated Non-cash Consideration being measured pursuant to this clause (E) at Bidco’s option, either at the time of contractually agreeing to such Asset Sale or at Sale, to the time received and, extent that the Initial Borrower and each other Restricted Subsidiary are released from any Guarantee of such Indebtedness in either case, without giving effect to subsequent changes in value)connection with such Asset Sale; and
(Fv) any Investment, Capital Stock, assets, property or capital or other expenditure consideration consisting of Indebtedness of the kind referred to in Section 6.04(b)(ii) Initial Borrower or any Guarantor received from Persons who are not the Initial Borrower or a Restricted Subsidiary, shall each be deemed to be Cash Equivalents for the purposes of this provision and for no other purpose.
(b) Within Section 7.5. After the Reinvestment Period after BidcoInitial Borrower’s or any Restricted Subsidiary’s receipt of the Net Cash Proceeds of any Asset SaleSale pursuant to this Section 7.5, Bidco the Initial Borrower or such Restricted Subsidiary shall apply an amount equal to the Net Cash Proceeds from such Asset Sale,
(i) (A) to prepay Loans or Indebtedness in accordance with Section 2.10(c) or (B) to the extent not required to prepay Loans pursuant to Section 2.10(c), to be retained by Bidco and/or Restricted Subsidiaries; or
(ii) to make investments in Bidco and its Subsidiaries; provided that Bidco and the Restricted Subsidiaries will be deemed to have complied with this clause (ii) Sale if and to the extent that, within the Reinvestment Period after the Asset Sale that generated the Net Proceeds, Bidco or such Restricted Subsidiary has entered into and not abandoned or rejected a binding agreement or letter of intent to consummate any such investment described in this clause (ii) 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 such commitment is later cancelled or terminated for any reason before the Net Proceeds are applied in connection therewith, Bidco or such Restricted Subsidiary enters into another Acceptable Commitment (a “Second Commitment”) within 180 days of such cancellation or termination; provided that if any Second Commitment is later cancelled or terminated for any reason before such Net Proceeds are applied, then Bidco or such Restricted Subsidiary shall prepay the Loans in accordance with required by Section 2.10(c2.11(c).
(c) 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 the Revolving Facility or any other revolving credit facility or otherwise use such Net Proceeds in any manner not prohibited by this Agreement. Bidco or any Restricted Subsidiary, as the case may be, may elect to invest in Bidco and its Subsidiaries prior to receiving the Net Proceeds attributable to any given Asset Sale (provided that such investment shall be made no earlier than execution of a definitive agreement for the relevant Asset Sale) and deem the amount so invested to be applied pursuant to and in accordance with clause (b)(ii) above with respect to such Asset Sale.
Appears in 1 contract
Asset Sales. (a) Bidco The Issuer shall not, and shall not permit any of its Restricted Subsidiaries to, consummate cause or make an Asset Sale, unless:
unless (ix) Bidco the Issuer or such any of its Restricted SubsidiarySubsidiaries, as the case may be, receives consideration at the time of such Asset Sale at least equal to the Fair Market Value (as determined at in good faith by the time of contractually agreeing to such Asset SaleIssuer) of the assets sold or otherwise disposed of; and
, and (iiy) except in the case of a Permitted Asset Swap, if the property or assets sold or otherwise disposed of have a Fair Market Value in excess of the greater of $375,000,000 and 50% of Consolidated EBITDA for the most recently ended Test Period at the time of such disposition, calculated on a Pro Forma Basis, at least 75% of the consideration therefor received by Bidco the Issuer or such Restricted Subsidiary, as the case may be, is in the form of cash or Cash Equivalents; provided that the amount of:
(Ai) any liabilities, contingent or otherwise, of Bidco liabilities (as shown on the Issuer’s or such Restricted Subsidiary, ’s most recent balance sheet or in the notes thereto) of the Issuer or any Restricted Subsidiary of the Issuer (other than liabilities (1) that are by their terms subordinated in right of payment to the Secured Obligations Securities 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 Bidco the Issuer, a Subsidiary or a Restricted Subsidiary any Affiliate of the foregoing) that (x) are assumed by the transferee of any such assets (or a third party in connection with such transfer) or (y) that are otherwise cancelled or terminated in connection with the transaction with such transferee (other than intercompany debt owed to Bidco or its Restricted Subsidiaries) and, in each case, for which Bidco and all of its Restricted Subsidiaries have been validly releasedtransferee;
(Bii) any securities, notes or other obligations or other securities or assets received by Bidco the Issuer or such Restricted Subsidiary of the Issuer from such transferee that are converted by Bidco the Issuer or such Restricted Subsidiary of the Issuer into cash or Cash Equivalents within 180 days of the receipt thereof (to the extent of the cash or Cash Equivalents received) within 180 days following the closing of such Asset Sale;); and
(C) Indebtedness of any Restricted Subsidiary that ceases to be a Restricted Subsidiary as a result of such Asset Sale (other than intercompany debt owed to Bidco or any Restricted Subsidiary), to the extent that Bidco and each other Restricted Subsidiary are released from any guarantee of payment of the principal amount of such Indebtedness in connection with such Asset Sale in accordance with the terms of this Agreement,
(D) consideration consisting of Indebtedness of a Borrower or a Guarantor (other than intercompany debt owed to Bidco or any Restricted Subsidiary and other than Subordinated Indebtedness) received after the Effective Date from Persons who are not Bidco, Holdings or any Restricted Subsidiary;
(Eiii) any Designated Non-cash Consideration received by Bidco the Issuer or such any of its Restricted Subsidiary Subsidiaries in such Asset Sale having an aggregate Fair Market Value (as determined in good faith by the Issuer), taken together with all other Designated Non-cash Consideration received pursuant to this clause (Eiii) that is at that time outstanding, not to exceed the greater of $225,000,000 and 30% of Consolidated EBITDA for the most recently ended Test Period at the time of the receipt of such Designated Non-cash Consideration, calculated on a Pro Forma Basis 1,000,000 (with the Fair Market Value of each such item of Designated Non-cash Consideration being measured pursuant to this clause (E) at Bidco’s option, either at the time of contractually agreeing to such Asset Sale or at the time received and, in either case, and without giving effect to subsequent changes in value); and
(F) any Investment, Capital Stock, assets, property or capital or other expenditure of the kind referred to in Section 6.04(b)(ii) shall be deemed to be Cash Equivalents for the purposes of this provision and for no other purposeSection 4.06(a).
(b) Within 365 days after the Reinvestment Period after BidcoIssuer’s or any Restricted SubsidiarySubsidiary of the Issuer’s receipt of (x) the Net Proceeds of any Asset SaleSale 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, Bidco the Issuer or such Restricted Subsidiary shall of the Issuer may apply an amount equal to the Net Proceeds from such Asset Sale,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 prepay Loans or permanently repay Indebtedness in accordance with Section 2.10(c) 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 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 extent not required to prepay Loans pursuant to Section 2.10(cIssuer or an Affiliate of the Issuer), to be retained by Bidco and/or Restricted Subsidiaries; 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 investments an Investment in Bidco 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 its Subsidiariesassets that are the subject of such Asset Sale; provided that Bidco and the Restricted Subsidiaries will be deemed to have complied with this clause (ii) if and any such Investment, assets, property or capital expenditures, to the extent that, within the Reinvestment Period after the acquired with Net Proceeds of an Asset Sale that generated the of Notes Collateral, shall be pledged as Notes Collateral (including any assets held by a Person acquired using Net Proceeds, Bidco which shall not be ABL Collateral even if such assets or such Restricted Subsidiary has entered into and not abandoned or rejected property are of a type that would otherwise be ABL Collateral). In the case of Section 4.06(b)(ii), a binding agreement or letter commitment shall be treated as a permitted application of intent to consummate any such investment described in this clause (ii) with the good faith expectation that such Net Proceeds will be applied to satisfy such commitment within 180 days from the date of such commitment (an “Acceptable Commitment”) and, in the event any such commitment is later cancelled or terminated for any reason before so long as the Net Proceeds are so applied in connection therewith, Bidco or such Restricted Subsidiary enters into another Acceptable Commitment (a “Second Commitment”) within 180 450 days after the receipt of such cancellation or termination; provided that if any Second Commitment is later cancelled or terminated for any reason before such Net Proceeds are applied, then Bidco or such Restricted Subsidiary shall prepay the Loans in accordance with Section 2.10(c).
(c) Proceeds. Pending the final application of any such Net Proceeds pursuant to this covenantProceeds, the holder Issuer or such Restricted Subsidiary of such Net Proceeds the Issuer may apply such Net Proceeds temporarily to reduce Indebtedness outstanding under the Revolving Facility or any other a revolving credit facility facility, if any, or otherwise use invest such Net Proceeds in any manner not prohibited by this Agreement. Bidco or any Restricted SubsidiaryIndenture; provided, as the case may be, may elect to invest in Bidco and its Subsidiaries prior to receiving that the Net Proceeds attributable 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 4.06(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 given 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 investment 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); provided that no earlier than execution 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 definitive agreement for Notes Collateral Asset Sale Offer shall be provided by the relevant Asset Sale) and deem Issuer at least 10 but not more than 60 days before the amount so invested 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 applied pursuant to and purchased in accordance with clause (b)(ii) above with respect part only, any notice of purchase that relates to such Asset SaleSecurity 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) Bidco The Issuer shall not, and shall not permit any of its Restricted Subsidiaries to, consummate cause or make an Asset Sale, unless:
unless (ix) Bidco the Issuer or such any of its Restricted SubsidiarySubsidiaries, as the case may be, receives consideration at the time of such Asset Sale at least equal to the Fair Market Value (as determined at in good faith by the time of contractually agreeing to such Asset SaleIssuer) of the assets sold or otherwise disposed of; and
of and (iiy) except in the case of a Permitted Asset Swap, if the property or assets sold or otherwise disposed of have a Fair Market Value in excess of the greater of $375,000,000 and 50% of Consolidated EBITDA for the most recently ended Test Period at the time of such disposition, calculated on a Pro Forma Basis, at least 75% of the consideration therefor received by Bidco the Issuer or such Restricted Subsidiary, as the case may be, is in the form of cash or Cash Equivalents; provided PROVIDED that the amount of:
(Ai) any liabilities, contingent or otherwise, of Bidco liabilities (as shown on the Issuer's or such Restricted Subsidiary, 's most recent balance sheet or in the notes thereto) of the Issuer or any Restricted Subsidiary of the Issuer (other than liabilities that are by their terms subordinated to the Secured Obligations or Notes) that are owed to Bidco or a Restricted Subsidiary that (x) are assumed by the transferee of any such assets (or a third party in connection with such transfer) or (y) are otherwise cancelled or terminated in connection with the transaction with such transferee (other than intercompany debt owed to Bidco or its Restricted Subsidiaries) and, in each case, for which Bidco and all of its Restricted Subsidiaries have been validly released;assets,
(Bii) any securities, notes or other obligations or other securities or assets received by Bidco the Issuer or such Restricted Subsidiary of the Issuer from such transferee that are converted by Bidco the Issuer or such Restricted Subsidiary of the Issuer into cash or Cash Equivalents within 180 days of the receipt thereof (to the extent of the cash or Cash Equivalents received) within 180 days following the closing of such Asset Sale;), and
(C) Indebtedness of any Restricted Subsidiary that ceases to be a Restricted Subsidiary as a result of such Asset Sale (other than intercompany debt owed to Bidco or any Restricted Subsidiary), to the extent that Bidco and each other Restricted Subsidiary are released from any guarantee of payment of the principal amount of such Indebtedness in connection with such Asset Sale in accordance with the terms of this Agreement,
(D) consideration consisting of Indebtedness of a Borrower or a Guarantor (other than intercompany debt owed to Bidco or any Restricted Subsidiary and other than Subordinated Indebtedness) received after the Effective Date from Persons who are not Bidco, Holdings or any Restricted Subsidiary;
(Eiii) any Designated Non-cash Consideration received by Bidco the Issuer or such any of its Restricted Subsidiary Subsidiaries in such Asset Sale having an aggregate Fair Market Value Value, taken together with all other Designated Non-cash Consideration received pursuant to this clause (Eiii) that is at that time outstanding, not to exceed the greater of $225,000,000 and 307.5% of Consolidated EBITDA for Total Assets of the most recently ended Test Period Issuer at the time of the receipt of such Designated Non-cash Consideration, calculated on a Pro Forma Basis Consideration (with the Fair Market Value of each such item of Designated Non-cash Consideration being measured pursuant to this clause (E) at Bidco’s option, either at the time of contractually agreeing to such Asset Sale or at the time received and, in either case, and without giving effect to subsequent changes in value); and
(F) any Investment, Capital Stock, assets, property or capital or other expenditure of the kind referred to in Section 6.04(b)(ii) shall be deemed to be Cash Equivalents for the purposes of this provision and for no other purposeSection 4.06(a).
(b) Within 455 days after the Reinvestment Period after Bidco’s Issuer's or any Restricted Subsidiary’s Subsidiary of the Issuer's receipt of the Net Proceeds of any Asset SaleSale (or Event of Loss Proceeds), Bidco the Issuer or such Restricted Subsidiary shall of the Issuer may apply an amount equal to the Net Proceeds from such Asset Sale,Sale together with any Event of Loss Proceeds, at its option:
(i) to permanently reduce Obligations under Secured Indebtedness or Pari Passu Indebtedness (A) to prepay Loans PROVIDED that if the Issuer or any Guarantor shall so reduce Obligations under Pari Passu Indebtedness (other than Pari Passu Indebtedness that is Secured Indebtedness), the Issuer shall 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 Section 2.10(cthe 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 Notes that would otherwise be prepaid) or (B) 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 if an offer to purchase any Indebtedness of any of the Issuer or its Restricted Subsidiaries is made in accordance with the terms of such Indebtedness, the obligation to permanently reduce Indebtedness of the Issuer 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 required accepted by the holders thereof, and no Net Proceeds in the amount of such offer will be deemed to prepay Loans pursuant to Section 2.10(c), to be retained by Bidco and/or Restricted Subsidiaries; orexist 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 Issuer), or capital expenditures or assets, in each case used or useful in a Similar Business, and/or
(iii) to make investments an investment in Bidco 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 its Subsidiariesassets that are the subject of such Asset Sale or Event of Loss; provided PROVIDED that Bidco and in the Restricted Subsidiaries will be deemed to have complied with this clause case of clauses (ii) if and to the extent that(iii) above, within the Reinvestment Period after the Asset Sale that generated a binding commitment shall be treated as a permitted application of the Net Proceeds, Bidco or such Restricted Subsidiary has entered into and not abandoned or rejected a binding agreement or letter of intent to consummate any such investment described in this clause (ii) with Proceeds from the good faith expectation that such Net Proceeds will be applied to satisfy such commitment within 180 days date of such commitment (an “Acceptable Commitment”) and, in the event any such binding commitment is later cancelled or terminated for any reason before the Net Proceeds are applied in connection therewith, Bidco or such Restricted Subsidiary enters into another Acceptable Commitment (a “Second Commitment”) within 180 days of such cancellation or termination; provided that if any Second Commitment is later cancelled canceled or terminated for any reason before such Net Proceeds are so applied, then Bidco the Issuer or such Restricted Subsidiary shall prepay enters into another binding commitment within nine months of such cancellation or termination of the Loans in accordance with Section 2.10(c).
(c) prior binding commitment. Pending the final application of any such Net Proceeds pursuant to this covenant(or Event of Loss Proceeds), the holder 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 (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 4.06(b) (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 (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 $30.0 million, the Issuer shall make an offer to all Holders of Notes and, at the option of the Issuer, to holders of any Pari Passu Indebtedness (an "ASSET SALE OFFER") to purchase the maximum principal amount of Notes (and such Pari Passu Indebtedness) that is an integral multiple of $1,000 that may apply 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 Net 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. The Issuer shall commence an Asset Sale Offer with respect to Excess Proceeds temporarily within ten Business Days after the date that Excess Proceeds exceed $30.0 million by mailing the notice required pursuant to reduce Indebtedness outstanding 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, the Issuer 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 (and such Pari Passu Indebtedness) 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 Revolving Facility or Exchange Act and any other revolving credit facility securities laws and regulations to the extent such laws or otherwise use such Net Proceeds 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 manner 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 prohibited be deemed to have breached its obligations described in this Indenture by this Agreement. Bidco or any Restricted Subsidiaryvirtue 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 case may beamount of the Excess Proceeds, may elect to invest in Bidco and its Subsidiaries prior to receiving (ii) the allocation of the Net Proceeds attributable from the Asset Sales pursuant to any given which such Asset Sale Offer is being made and (provided 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 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. 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.
(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 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 investment 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 Issuer is required to purchase, the principal amount of the Notes (and Pari Passu Indebtedness) to be purchased will be determined pro rata based on the principal amount so tendered and the selection of the actual Notes for purchase shall be made by the Trustee on a pro rata basis to the extent practicable; PROVIDED, HOWEVER, that no earlier Notes (or Pari Passu Indebtedness) of $2,000 or less shall be purchased in part.
(f) Notice of an Asset Sale Offer shall be mailed by first class mail, postage prepaid, at least 30 but not more than execution 60 days before the purchase date to each Holder of a definitive agreement for the relevant Asset Sale) and deem the amount so invested Notes at such Holder's registered address. If any Note is to be applied pursuant to and purchased in accordance with clause (b)(ii) above with respect part only, any notice of purchase that relates to such Asset SaleNote 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 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 (PanAmSat Holding CORP)
Asset Sales. (a) Bidco MPM shall not, and shall not permit any of its the Restricted Subsidiaries to, consummate cause or make an Asset Sale, unless:
unless (ix) Bidco MPM or such any of the Restricted SubsidiarySubsidiaries, as the case may be, receives consideration at the time of such Asset Sale at least equal to the Fair Market Value (as determined at the time of contractually agreeing to such Asset Salein good faith by MPM) of the assets sold or otherwise disposed of; and
, and (iiy) except in the case of a Permitted Asset Swap, if the property or assets sold or otherwise disposed of have a Fair Market Value in excess of the greater of $375,000,000 and 50% of Consolidated EBITDA for the most recently ended Test Period at the time of such disposition, calculated on a Pro Forma Basis, at least 75% of the consideration therefor received by Bidco MPM or such Restricted Subsidiary, as the case may be, is in the form of cash or Cash Equivalents; provided that the amount of:
(Ai) any liabilities, contingent or otherwise, of Bidco liabilities (as shown on MPM’s or such Restricted Subsidiary, ’s most recent balance sheet or in the notes thereto) of MPM or any Restricted Subsidiary (other than liabilities that are by their terms subordinated to the Secured Obligations Notes or any Note Guarantee) that are owed to Bidco or a Restricted Subsidiary that (x) are assumed by the transferee of any such assets (or a third party in connection with such transfer) or (y) are otherwise cancelled or terminated in connection with the transaction with such transferee (other than intercompany debt owed to Bidco or its Restricted Subsidiaries) and, in each case, for which Bidco and all of its Restricted Subsidiaries have been validly released;assets,
(Bii) any securities, notes or other obligations or other securities or assets received by Bidco MPM or such Restricted Subsidiary from such transferee that are converted by Bidco MPM or such Restricted Subsidiary into cash or Cash Equivalents within 180 days of the receipt thereof (to the extent of the cash or Cash Equivalents received) within 180 days following the closing of such Asset Sale;), and
(C) Indebtedness of any Restricted Subsidiary that ceases to be a Restricted Subsidiary as a result of such Asset Sale (other than intercompany debt owed to Bidco or any Restricted Subsidiary), to the extent that Bidco and each other Restricted Subsidiary are released from any guarantee of payment of the principal amount of such Indebtedness in connection with such Asset Sale in accordance with the terms of this Agreement,
(D) consideration consisting of Indebtedness of a Borrower or a Guarantor (other than intercompany debt owed to Bidco or any Restricted Subsidiary and other than Subordinated Indebtedness) received after the Effective Date from Persons who are not Bidco, Holdings or any Restricted Subsidiary;
(Eiii) any Designated Non-cash Consideration received by Bidco MPM or such any of the Restricted Subsidiary Subsidiaries in such Asset Sale having an aggregate Fair Market Value Value, taken together with all other Designated Non-cash Consideration received pursuant to this clause (Eiii) that is at that time outstanding, not to exceed the greater of $225,000,000 and 303.0% of Consolidated EBITDA for the most recently ended Test Period Total Assets and $70.0 million at the time of the receipt of such Designated Non-cash Consideration, calculated on a Pro Forma Basis Consideration (with the Fair Market Value of each such item of Designated Non-cash Consideration being measured pursuant to this clause (E) at Bidco’s option, either at the time of contractually agreeing to such Asset Sale or at the time received and, in either case, and without giving effect to subsequent changes in value); and
(F) any Investment, Capital Stock, assets, property or capital or other expenditure of the kind referred to in Section 6.04(b)(ii) shall be deemed to be Cash Equivalents for the purposes of this provision and for no other purposeSection 4.06(a).
(b) Within the Reinvestment Period 365 days after BidcoMPM’s or any Restricted Subsidiary’s receipt of the Net Proceeds of any Asset Sale, Bidco MPM or such Restricted Subsidiary shall may apply an amount equal to 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 prepay Loans 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 Section 2.10(cthe 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 the Notes, or (Bb) to repay ABL Obligations (which repayment need not be permanent), to the extent not required the Net Proceeds are from an Asset Sale of ABL Priority Collateral (including indirect Asset Sales of ABL Priority Collateral due to prepay Loans pursuant to Section 2.10(cthe sale of the Capital Stock of a Person), to be retained by Bidco and/or Restricted Subsidiaries; or;
(ii) to make investments an investment in Bidco 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 its Subsidiariesassets 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 Bidco and the Restricted Subsidiaries will be deemed to have complied with this clause (ii) if and to the extent that, within the Reinvestment Period after the Asset Sale that generated the Net Proceeds, Bidco or such Restricted Subsidiary has entered into and not abandoned or rejected a binding agreement or letter of intent to consummate any such investment described in this clause (ii) 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 such binding commitment is later cancelled or terminated for any reason before the Net Proceeds are applied in connection therewith, Bidco or such Restricted Subsidiary enters into another Acceptable Commitment (a “Second Commitment”) within 180 days of such cancellation or termination; provided that if any Second Commitment is later cancelled canceled or terminated for any reason before such Net Proceeds are so applied, then Bidco MPM or such Restricted Subsidiary shall prepay 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 Loans in accordance 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 Section 2.10(c).
(c) respect to each Asset Sale. Pending the final application of any Net Proceeds pursuant to this covenant, the holder of such Net Proceeds Proceeds, MPM or such Restricted Subsidiary may apply such Net Proceeds temporarily to reduce Indebtedness outstanding under the Revolving Facility or any other a revolving credit facility facility, if any, or otherwise use invest such Net Proceeds in any manner not otherwise prohibited by this AgreementIndenture. Bidco or Any Net Proceeds from any Restricted SubsidiaryAsset Sale that are not applied as provided and within the time period set forth in the first sentence of this Section 4.06(b) (it being understood that any portion of such Net Proceeds used to make an offer to purchase 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 case 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 bebe 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 and Additional Interest, if any (or, in respect of such First Priority Lien Obligations or Pari Passu Indebtedness, such lesser price, if any, as may elect be provided for by the terms of such Indebtedness), to invest the date fixed for the closing of such offer, in Bidco 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 Subsidiaries prior 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 receiving 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 attributable from the Asset Sales pursuant to any given 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; provided that no Notes of $2,000 or less shall be purchased in part. Selection of such investment First Priority Lien Obligations or Pari Passu Indebtedness shall be made no earlier 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 execution 60 days before the purchase date to each Holder of a definitive agreement for the relevant Asset Sale) and deem the amount so invested Notes at such Holder’s registered address. If any Note is to be applied pursuant to and purchased in accordance with clause (b)(ii) above with respect part only, any notice of purchase that relates to such Asset SaleNote shall state the portion of the principal amount thereof that has been or is to be purchased.
Appears in 1 contract
Asset Sales. (a) Bidco The Issuer shall not, and shall not permit any of its Restricted Subsidiaries to, consummate cause or make an Asset Sale, unless:
(i) Bidco the Issuer or such any of its Restricted SubsidiarySubsidiaries, as the case may be, receives consideration at the time of such Asset Sale at least equal to the Fair Market Value (as determined at in good faith by the time of contractually agreeing to such Asset SaleIssuer) of the assets sold or otherwise disposed of; and
(ii) except in the case of a Permitted Asset Swap, if the property or assets sold or otherwise disposed of have a Fair Market Value in excess of the greater of $375,000,000 and 50% of Consolidated EBITDA for the most recently ended Test Period at the time of such disposition, calculated on a Pro Forma Basis, at least 75% of the consideration therefor received by Bidco the Issuer or such Restricted Subsidiary, as the case may be, is in the form of cash or Cash EquivalentsEquivalents or Replacement Assets; provided provided, however that the amount of:
(A1) any liabilities, contingent or otherwise, of Bidco liabilities (as shown on the Issuer’s or such Restricted Subsidiary, ’s most recent balance sheet or in the notes thereto) of the Issuer or such Restricted Subsidiary (other than liabilities that are by their terms subordinated to the Secured Obligations or Notes) that are owed to Bidco or a Restricted Subsidiary that (x) are assumed by the transferee of any such assets (or a third party in connection with Equity Interests pursuant to an agreement that releases or indemnifies the Issuer or such transfer) or (y) are otherwise cancelled or terminated in connection with Restricted Subsidiary, as the transaction with such transferee (other than intercompany debt owed to Bidco or its Restricted Subsidiaries) andcase may be, in each case, for which Bidco and all of its Restricted Subsidiaries have been validly releasedfrom further liability;
(B2) any securities, notes Notes or other obligations or other securities or assets received by Bidco the Issuer or such Restricted Subsidiary from such transferee that are converted by Bidco the Issuer or such Restricted Subsidiary into cash or Cash Equivalents within 180 days of the receipt thereof (to the extent of the cash or Cash Equivalents received) within 180 days following the closing of such Asset Sale;); and
(C) Indebtedness of any Restricted Subsidiary that ceases to be a Restricted Subsidiary as a result of such Asset Sale (other than intercompany debt owed to Bidco or any Restricted Subsidiary), to the extent that Bidco and each other Restricted Subsidiary are released from any guarantee of payment of the principal amount of such Indebtedness in connection with such Asset Sale in accordance with the terms of this Agreement,
(D) consideration consisting of Indebtedness of a Borrower or a Guarantor (other than intercompany debt owed to Bidco or any Restricted Subsidiary and other than Subordinated Indebtedness) received after the Effective Date from Persons who are not Bidco, Holdings or any Restricted Subsidiary;
(E3) any Designated Non-cash Consideration received by Bidco the Issuer or such any of its Restricted Subsidiary Subsidiaries in such Asset Sale having an aggregate Fair Market Value Value, taken together with all other Designated Non-cash Consideration received pursuant to this clause (Ec) that is at that time outstanding, not to exceed the greater of (x) $225,000,000 100.0 million and 30(y) 2.25% of Consolidated EBITDA for the most recently ended Test Period Total Assets, at the time of the receipt of such Designated Non-cash Consideration, calculated on a Pro Forma Basis Consideration (with the Fair Market Value of each such item of Designated Non-cash Consideration being measured pursuant to this clause (E) at Bidco’s option, either at the time of contractually agreeing to such Asset Sale or at the time received and, in either case, and without giving effect to subsequent changes in value); and
(F) any Investment, Capital Stock, assets, property or capital or other expenditure of the kind referred to in Section 6.04(b)(ii) shall each be deemed to be Cash Equivalents for the purposes of this provision and for no other purposeclause (2).
(b) Within 365 days after the Reinvestment Period after BidcoIssuer’s or any Restricted Subsidiary’s receipt of the Net Cash Proceeds of any Asset Sale, Bidco 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 and additional interest, if any, 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 apply an amount equal to the Net Proceeds from such Asset Sale,effect a corresponding reduction of commitments with respect thereto);
(i) (Aiii) to prepay Loans an Investment in any one or Indebtedness more businesses (provided that if such investment is in accordance with Section 2.10(c) or (B) to the extent not required to prepay Loans pursuant to Section 2.10(cform of the acquisition of Capital Stock of a Person, such acquisition results in such Person becoming a Restricted Subsidiary of the Issuer), to be retained by Bidco and/or Restricted Subsidiariesassets, or property or capital expenditures, in each case used or useful in a Similar Business; or
(iiiv) to make investments an Investment in Bidco 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 its Subsidiariesassets that are the subject of such Asset Sale; or
(v) any combination of the foregoing; provided that Bidco the Issuer and the its Restricted Subsidiaries will shall be deemed to have complied with the provisions described in clauses (iii) and (iv) of this clause (iiSection 3.7(b) if and to the extent that, within the Reinvestment Period 365 days after the Asset Sale that generated the Net Cash Proceeds, Bidco or such Restricted Subsidiary the Issuer has entered into and not abandoned or rejected a binding agreement to acquire the assets or letter Capital Stock of intent to consummate any such investment a Similar Business, make an Investment in Replacement Assets or make a capital expenditure in compliance with the provision described in clauses (iii) and (iv) of this clause (ii) with the good faith expectation Section 3.7(b), and that such Net Proceeds will be applied to satisfy such commitment acquisition, purchase or capital expenditure is thereafter completed within 180 days after the end of such commitment (an “Acceptable Commitment”) and, in the event any such commitment is later cancelled or terminated for any reason before the Net Proceeds are applied in connection therewith, Bidco or such Restricted Subsidiary enters into another Acceptable Commitment (a “Second Commitment”) within 180 days of such cancellation or termination; provided that if any Second Commitment is later cancelled or terminated for any reason before such Net Proceeds are applied, then Bidco or such Restricted Subsidiary shall prepay the Loans in accordance with Section 2.10(c)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 and additional interest, if any (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 covenantIndenture, 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 holder of such Net Issuer may use any remaining Excess Proceeds may apply such Net Proceeds temporarily to reduce Indebtedness outstanding under the Revolving Facility or for any other revolving credit facility or purpose not otherwise use such Net Proceeds in any manner not prohibited by this AgreementIndenture. Bidco or any Restricted SubsidiaryIf the aggregate principal amount of Notes and Pari Passu Indebtedness, as appropriate, surrendered by holders thereof exceeds the case may beamount of Excess Proceeds, may elect the Trustee shall select the Notes and the Issuer or its agent shall select such other Indebtedness to invest be purchased in Bidco and its Subsidiaries prior to receiving the Net Proceeds attributable to manner described below. Upon completion of any given such Asset Sale (provided that such investment Offer, the amount of Excess Proceeds shall be made no earlier than execution reset at zero.
(d) The Issuer shall comply with the requirements of a definitive agreement for Rule 14e-1 under the relevant Asset Sale) Exchange Act and deem any other securities laws and regulations to the amount so invested to be applied 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); provided, 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.
(f) Notices of an Asset Sale Offer shall be mailed by first class mail, postage prepaid, or sent electronically, at least 30 but not more than 60 days before the purchase date to each Holder of Notes at such Holder’s registered address or otherwise in accordance with clause (b)(ii) above with respect DTC procedures. If any Note is to be purchased in part only, any notice of purchase that relates to such Asset SaleNote shall state the portion of the principal amount thereof that has been or is to be purchased.
Appears in 1 contract
Samples: Indenture (Solgar)
Asset Sales. (a) Bidco The Company shall not, and shall not permit any of its Restricted Subsidiaries to, consummate an Asset Sale, unless:
Sale unless (i) Bidco the Company or such the applicable Restricted Subsidiary, as the case may be, receives consideration at the time of such Asset Sale at least equal to the Fair Market Value (as determined at the time of contractually agreeing to such Asset Sale) fair market value of the assets sold or otherwise disposed ofof (as determined in good faith by the Company); and
(ii) except in solely with respect to any Asset Sale or series of related Asset Sales for which the case of a Permitted Asset Swap, if the property or assets sold or otherwise disposed of have a Fair Market Value Company and its Restricted Subsidiaries receive aggregate consideration in excess of the greater of $375,000,000 and 50% of Consolidated EBITDA for the most recently ended Test Period at the time of such disposition, calculated on a Pro Forma Basis50.0 million, at least 75% of the consideration therefor received by Bidco the Company or such the Restricted Subsidiary, as the case may be, is from such Asset Sale shall be in the form of cash or Cash Equivalents; provided that the amount of:
: (Aa) any liabilities, contingent or otherwise, of Bidco 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 Secured Obligations or Notes) that are owed to Bidco or a Restricted Subsidiary that (x) are assumed by the transferee of any such assets assets; (or a third party in connection with such transfer) or (y) are otherwise cancelled or terminated in connection with the transaction with such transferee (other than intercompany debt owed to Bidco or its Restricted Subsidiaries) and, in each case, for which Bidco and all of its Restricted Subsidiaries have been validly released;
(Bb) any securities, notes or other obligations or assets received by Bidco the Company or any such Restricted Subsidiary from such transferee that are converted by Bidco the Company or such Restricted Subsidiary into cash or Cash Equivalents within 180 days of the receipt thereof (to the extent of the cash or Cash Equivalents received) within 180 days following the closing of such Asset Sale;
); and (C) Indebtedness of any Restricted Subsidiary that ceases to be a Restricted Subsidiary as a result of such Asset Sale (other than intercompany debt owed to Bidco or any Restricted Subsidiary), to the extent that Bidco and each other Restricted Subsidiary are released from any guarantee of payment of the principal amount of such Indebtedness in connection with such Asset Sale in accordance with the terms of this Agreement,
(D) consideration consisting of Indebtedness of a Borrower or a Guarantor (other than intercompany debt owed to Bidco or any Restricted Subsidiary and other than Subordinated Indebtedness) received after the Effective Date from Persons who are not Bidco, Holdings or any Restricted Subsidiary;
(Ec) any Designated Non-cash Consideration received by Bidco the Company or such any of its Restricted Subsidiary Subsidiaries in such Asset Sale having an aggregate Fair Market Value fair market value, taken together with all other Designated Non-cash Consideration received pursuant to this clause (Ec) after December 14, 2010 that is at that time outstanding, not to exceed the greater of $225,000,000 150 million and 305% of Consolidated EBITDA for the most recently ended Test Period Total Assets at the time of the receipt of such Designated Non-cash Consideration, calculated on a Pro Forma Basis Consideration (with the Fair Market Value fair market value of each such item of Designated Non-cash Consideration being measured pursuant to this clause (E) at Bidco’s option, either at the time of contractually agreeing to such Asset Sale or at the time received and, in either case, and without giving effect to subsequent changes in value), 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; andand (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
(FA) to prepay any InvestmentSenior Debt or Indebtedness of a Restricted Subsidiary that is not a Guarantor and, Capital Stockin the case of any such Indebtedness under any revolving credit facility, assets, property effect a corresponding reduction in the availability under such revolving credit facility (or capital or other expenditure effect a permanent reduction in the availability under such revolving credit facility regardless of the kind referred fact that no prepayment is required in order to do so (in Section 6.04(b)(iiwhich 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 Cash Equivalents for purposes of this provision and for no other purpose.
(b) Within the Reinvestment Period after Bidco’s or any Restricted Subsidiary’s receipt of the Net Proceeds of any Asset Sale, Bidco or such Restricted Subsidiary shall apply an amount equal a reference to the Net Proceeds from 121st day after the date on which such Asset Sale,
binding agreement is entered into (ibut only if such 121st day occurs later than such 546th day)) (A) to prepay Loans or Indebtedness in accordance with Section 2.10(c) or (B) to the extent not required to prepay Loans pursuant to Section 2.10(c), to be retained by Bidco and/or Restricted Subsidiaries; or
(iiC) to make investments in Bidco a combination of prepayment and its Subsidiaries; provided that Bidco investment permitted by the foregoing clauses (iii)(A) and the Restricted Subsidiaries will be deemed to have complied with this clause (ii) if and to the extent that, within the Reinvestment Period after the Asset Sale that generated the Net Proceeds, Bidco or such Restricted Subsidiary has entered into and not abandoned or rejected a binding agreement or letter of intent to consummate any such investment described in this clause (ii) 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 such commitment is later cancelled or terminated for any reason before the Net Proceeds are applied in connection therewith, Bidco or such Restricted Subsidiary enters into another Acceptable Commitment (a “Second Commitment”) within 180 days of such cancellation or termination; provided that if any Second Commitment is later cancelled or terminated for any reason before such Net Proceeds are applied, then Bidco or such Restricted Subsidiary shall prepay the Loans in accordance with Section 2.10(ciii)(B).
(c) . 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 pursuant to this covenantOffer Trigger Date”), the holder such aggregate amount of Net Cash Proceeds which have not been applied on or before such Net Proceeds may apply such Offer Trigger Date as permitted in clauses (iii)(A), (iii)(B) and (iii)(C) of the next preceding sentence (each a “Net Proceeds temporarily Offer Amount”) shall be applied by the Company or such Restricted Subsidiary to reduce Indebtedness outstanding under make an offer to purchase (the Revolving Facility or “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 revolving credit facility Senior Subordinated Debt of the Company or otherwise use 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 manner not prohibited time any non-cash consideration (including any Designated Non-cash Consideration) received by this Agreement. Bidco the Company or any Restricted SubsidiarySubsidiary 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 elect be deferred until such time as such Net Proceeds Offer Amount plus the aggregate amount of all Net Proceeds Offer Amounts arising subsequent to invest in Bidco and its Subsidiaries prior to receiving the Net Proceeds attributable Offer Trigger Date relating to any given 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 investment Net Proceeds Offer, the Net Proceeds Offer Amount shall be made no earlier than execution reset at zero. The Company shall comply with the requirements of a definitive agreement for Rule 14e-1 under the relevant Asset Sale) Exchange Act and deem any other securities laws and regulations thereunder to the amount so invested to be applied 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 in accordance with clause (b)(ii) above with respect regulations and shall not be deemed to such Asset Salehave breached its obligations under this Section 4.10 by virtue thereof.
Appears in 1 contract
Samples: Indenture (TransDigm Group INC)
Asset Sales. (a) Bidco shall Holdings will not, and shall will not permit any of its Restricted Subsidiaries to, consummate an Asset Sale, Sale unless:
(i1) Bidco Holdings (or such the Restricted Subsidiary, as the case may be, ) receives consideration at the time of such the Asset Sale at least equal to the Fair Market Value (as determined at the time of contractually agreeing to such Asset Sale) of the assets or Equity Interests issued or sold or otherwise disposed of; and
(ii2) except in the case of a Permitted Asset Swap, if the property or assets sold or otherwise disposed of have a Fair Market Value in excess of the greater of $375,000,000 and 50% of Consolidated EBITDA for the most recently ended Test Period at the time of such disposition, calculated on a Pro Forma Basis, at least 75% of the consideration therefor received in the Asset Sale by Bidco Holdings or such Restricted Subsidiary, as the case may be, Subsidiary is in the form of cash cash, Cash Equivalents or Cash Equivalents; provided that Replacement Assets. For purposes of this provision, each of the amount offollowing shall be deemed to be cash:
(A) any liabilities, contingent or otherwiseas shown on Holdings's most recent consolidated balance sheet, of Bidco Holdings or such any Restricted Subsidiary, Subsidiary (other than contingent liabilities and liabilities that are by their terms subordinated to the Secured Obligations Notes or any Note Guarantee) that are owed to Bidco or a Restricted Subsidiary that (x) are assumed by the transferee of any such assets (or Equity Interests pursuant to a third party in connection with customary novation agreement or transfer agreement that releases Holdings or such transfer) Restricted Subsidiary from such liabilities or (y) are otherwise cancelled against which the transferee has granted a full indemnity to Holdings or terminated in connection with the transaction with such transferee (other than intercompany debt owed to Bidco or its Restricted Subsidiaries) and, in each case, for which Bidco and all of its Restricted Subsidiaries have been validly releasedSubsidiary;
(B) any securities, notes or other obligations or assets received by Bidco Holdings or any such Restricted Subsidiary from such transferee that are contemporaneously, subject to ordinary settlement periods, converted by Bidco Holdings or such Restricted Subsidiary into cash or Cash Equivalents (cash, to the extent of the cash or Cash Equivalents received) within 180 days following the closing of such Asset Sale;received in that conversion; and
(C) Indebtedness of any Restricted Subsidiary that ceases to be a Restricted Subsidiary as a result of such Asset Sale (other than intercompany debt owed to Bidco or any Restricted Subsidiary), to the extent that Bidco and each other Restricted Subsidiary are released from any guarantee of payment of the principal amount of such Indebtedness in connection with such Asset Sale in accordance with the terms of this Agreement,
(D) consideration consisting of Indebtedness of a Borrower or a Guarantor (other than intercompany debt owed to Bidco or any Restricted Subsidiary and other than Subordinated Indebtedness) received after the Effective Date from Persons who are not Bidco, Holdings or any Restricted Subsidiary;
(E) any Designated Non-cash Cash Consideration received by Bidco Holdings or such any of its Restricted Subsidiary Subsidiaries in such Asset Sale having an aggregate aggregated Fair Market Value Value, taken together with all other Designated Non-cash Consideration Cash consideration received pursuant to this clause (Ec) that is at that time outstanding, not to exceed the greater of $225,000,000 and 30(x) 5.0% of Holdings's Consolidated EBITDA for the most recently ended Test Period at the time Net Assets as of the date or receipt of such Designated Non-cash Consideration, calculated on a Pro Forma Basis Cash Consideration and (y) $25.0 million (with the Fair Market Value of each such item of Designated Non-cash Cash Consideration being measured pursuant to this clause (E) at Bidco’s option, either at the time of contractually agreeing to such Asset Sale or at the time received and, in either case, and without giving effect to subsequent changes in value); and
(F) any Investment, Capital Stock, assets, property or capital or other expenditure of the kind referred to in Section 6.04(b)(ii) shall be deemed to be Cash Equivalents for purposes of this provision and for no other purpose.
(b) Within the Reinvestment Period after Bidco’s or any Restricted Subsidiary’s receipt of the Net Proceeds of any Asset Sale, Bidco or such Restricted Subsidiary shall apply an amount equal to the Net Proceeds from such Asset Sale,
(i) (A) to prepay Loans or Indebtedness in accordance with Section 2.10(c) or (B) to the extent not required to prepay Loans pursuant to Section 2.10(c), to be retained by Bidco and/or Restricted Subsidiaries; or
(ii) to make investments in Bidco and its Subsidiaries; provided that Bidco and the Restricted Subsidiaries will be deemed to have complied with this clause (ii) if and to the extent that, within the Reinvestment Period 360 days after the Asset Sale that generated the Net Proceeds, Bidco or such Restricted Subsidiary has entered into and not abandoned or rejected a binding agreement or letter of intent to consummate any such investment described in this clause (ii) 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 such commitment is later cancelled or terminated for any reason before the Net Proceeds are applied in connection therewith, Bidco or such Restricted Subsidiary enters into another Acceptable Commitment (a “Second Commitment”) within 180 days of such cancellation or termination; provided that if any Second Commitment is later cancelled or terminated for any reason before such Net Proceeds are applied, then Bidco or such Restricted Subsidiary shall prepay the Loans in accordance with Section 2.10(c).
(c) Pending the final application receipt of any Net Proceeds pursuant to this covenantfrom an Asset Sale, Holdings (or the holder of such Net Proceeds may apply such Net Proceeds temporarily to reduce Indebtedness outstanding under the Revolving Facility or any other revolving credit facility or otherwise use such Net Proceeds in any manner not prohibited by this Agreement. Bidco or any applicable Restricted Subsidiary, as the case may be) may apply such Net Proceeds at its option:
(1) to repay Senior Debt;
(2) to acquire all or substantially all of the assets of, may elect or any Capital Stock of, another Permitted Business, if, after giving effect to invest any such acquisition of Capital Stock, the Permitted Business is or becomes a Restricted Subsidiary of Holdings (or enter into a binding agreement to acquire such assets or Capital Stock within 180 days; provided that (x) such acquisition is consummated within 180 days after the date of such binding agreement and (y) if such purchase is not consummated within the period set forth in Bidco and its Subsidiaries prior to receiving subclause (x), the Net Proceeds attributable will be deemed to be Excess Proceeds (as defined below));
(3) to make capital expenditures; or
(4) to acquire other assets that are not classified as current assets under GAAP and that are used or needed in a Permitted Business (or enter into a binding agreement to acquire such assets within 180 days; provided that (x) such acquisition is consummated within 180 days after the date of such binding agreement and (y) if such purchase is not consummated within the period set forth in subclause (x), the Net Proceeds will be deemed to be Excess Proceeds). Pending the final application of any given Net Proceeds, Holdings may temporarily reduce revolving credit borrowings or otherwise invest the Net Proceeds in any manner that is not prohibited by this Indenture.
(c) Any Net Proceeds from Asset Sales that are not applied or invested as provided in paragraph (b) of this Section 4.10 will constitute "Excess Proceeds." When the aggregate amount of Excess Proceeds exceeds 10.0 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 (provided that such investment shall be made no earlier other than execution a Note Guarantee by Holdings) containing provisions similar to those set forth in this Section 4.11 and Section 3.09 of a definitive agreement for the relevant Asset Sale) and deem the amount so invested to be applied pursuant to and in accordance with clause (b)(ii) above 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% 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 SaleSale 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) Bidco The Company shall not, and shall not permit any of its Restricted Subsidiaries to, consummate an Asset Sale, unless:
(i1) Bidco the Company or such Restricted Subsidiary, as the case may be, receives consideration at the time of such Asset Sale at least equal to the Fair Market Value fair market value (as determined in good faith by the Company at the time of contractually agreeing to such Asset SaleSale (which determination shall be conclusive)) of the assets sold or otherwise disposed ofof or the Equity Interests issued; and
(ii2) except in the case of a Permitted Asset Swap, if the property or assets sold or otherwise disposed of have a Fair Market Value in excess of the greater of $375,000,000 and 50% of Consolidated EBITDA for the most recently ended Test Period at the time of such disposition, calculated on a Pro Forma Basis, at least 75% of the consideration therefor received by Bidco the Company or such Restricted Subsidiary, as the case may be, is in the form of cash or Cash Equivalents; provided that the amount offollowing shall be deemed to be cash for purposes of this provision and for no other purpose:
(A) any liabilities, contingent or otherwise, of Bidco liabilities (as reflected in the Company’s or such Restricted Subsidiary’s most recent balance sheet or in the footnotes thereto or, if incurred, increased or accrued subsequent to the date of such balance sheet, such liabilities that would have been shown on the Company’s or such Restricted Subsidiary’s balance sheet or in the footnotes thereto if such incurrence, increase or accrual had taken place on or prior to the date of such balance sheet, as determined in good faith by the Company (which determination shall be conclusive)) of the Company or such Restricted Subsidiary (other than Contingent Obligations and liabilities that are by their terms subordinated to the Secured Obligations Notes or the applicable Guarantee) that are owed to Bidco or a Restricted Subsidiary that (x) are assumed by the transferee of any such assets (pursuant to a written agreement that releases or a third party indemnifies the Company or such Restricted Subsidiary from such liabilities or that are otherwise extinguished by the transferee in connection with such transfer) or (y) are otherwise cancelled or terminated in connection with the transaction with such transferee (other than intercompany debt owed to Bidco or its Restricted Subsidiaries) and, in each case, for which Bidco and all of its Restricted Subsidiaries have been validly releasedtransaction;
(B) any securities, notes or other similar obligations or assets received by Bidco the Company or such Restricted Subsidiary from such transferee that are converted by Bidco the Company or such Restricted Subsidiary into cash or Cash Equivalents (to the extent of the cash or Cash Equivalents received) within 180 days following of the closing of such Asset Salereceipt thereof;
(C) Indebtedness of any Restricted Subsidiary that ceases to be a Restricted Subsidiary as a result of such Asset Sale (other than intercompany debt owed to Bidco or any Restricted Subsidiary), to the extent that Bidco and each other Restricted Subsidiary are released from any guarantee of payment of the principal amount of such Indebtedness in connection with such Asset Sale in accordance with the terms of this Agreement,
(D) consideration consisting of Indebtedness of a Borrower or a Guarantor (other than intercompany debt owed to Bidco or any Restricted Subsidiary and other than Subordinated Indebtedness) received after the Effective Date from Persons who are not Bidco, Holdings or any Restricted Subsidiary;
(E) any Designated Non-cash Consideration received by Bidco the Company or such Restricted Subsidiary in such Asset Sale having an aggregate Fair Market Value fair market value, taken together with all other Designated Non-cash Consideration received pursuant to this clause (EC) that is at that time outstanding, not to exceed the greater of $225,000,000 50.0 million and 303.50% of Consolidated EBITDA for the most recently ended Test Period Total Assets at the time of the receipt of such Designated Non-cash Consideration, calculated on a Pro Forma Basis (with the Fair Market Value fair market value of each such item of Designated Non-cash Consideration being measured pursuant to this clause (E) at Bidco’s option, either at the time of contractually agreeing to such Asset Sale or at the time received and, in either case, and without giving effect to subsequent changes in value); and
(FD) Capital Stock of a Person that is a Restricted Subsidiary or of a Person engaged in a Similar Business that shall become a Restricted Subsidiary immediately upon the acquisition thereof by the Company or any Investment, Capital Stock, assets, property or capital or other expenditure of the kind referred to in Section 6.04(b)(ii) shall be deemed to be Cash Equivalents for purposes of this provision and for no other purposeRestricted Subsidiary.
(b) Within 365 days after the Reinvestment Period after Bidco’s or any Restricted Subsidiary’s receipt of the any Net Proceeds of any Asset Sale, Bidco the Company or such a Restricted Subsidiary shall Subsidiary, at its option, may apply an amount equal to the Net Proceeds from such Asset Sale,
(i1) to permanently reduce Indebtedness as follows:
(A) to prepay Loans or permanently reduce Secured Indebtedness, including Indebtedness under the Senior Secured Credit Facilities, in accordance each case, that is secured by a Lien that is permitted by this Indenture and (if applicable) to permanently reduce commitments with Section 2.10(c) or respect thereto;
(B) to permanently reduce Obligations under other Senior Indebtedness of the Company or a Subsidiary Guarantor (and (if applicable) to permanently reduce commitments with respect thereto); provided that the Company shall equally and ratably reduce (or offer to reduce, as applicable) Obligations under the Notes; provided further that all reductions of Obligations under the Notes shall be made as provided under Section 3.08 or through open-market purchases (to the extent not required such purchases are at or above 100% of the principal amount thereof plus accrued and unpaid interest) or by making an offer (in accordance with the procedures set forth below for an Asset Sale Offer) to prepay Loans pursuant all Holders of Notes to Section 2.10(c)purchase their Notes at 100% of the principal amount thereof, to plus the amount of accrued but unpaid interest, if any, on the amount of Notes that would otherwise be retained by Bidco and/or Restricted Subsidiariesprepaid; or
(iiC) to permanently reduce Indebtedness of a Restricted Subsidiary that is not a Subsidiary Guarantor, other than Indebtedness owed to the Company or any Restricted Subsidiary;
(2) to make investments (A) an Investment in Bidco and its Subsidiariesany one or more businesses; provided that Bidco 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 will be deemed to have complied with this clause Subsidiaries, as the case may be, owning an amount of the Capital Stock of such business such that it constitutes a Restricted Subsidiary, (iiB) if and to the extent capital expenditures or (C) acquisitions of other businesses, properties, noncurrent assets or intellectual property rights that, within in the Reinvestment Period after case of each of (A), (B) and (C), 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 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) acquisitions of other businesses, properties, noncurrent assets or intellectual property rights that, in the case of each of (A), (B) and (C), replace the businesses, properties, assets or intellectual property rights that are the subject of such Asset Sale that generated Sale; provided that, in the case of clauses (2) and (3) of this Section 4.10(b), a binding commitment entered into not later than the end of such 365-day period shall be treated as a permitted application of the Net Proceeds, Bidco Proceeds from the date of such commitment so long as the Company or such Restricted Subsidiary has entered enters into and not abandoned or rejected a binding agreement or letter of intent to consummate any such investment described in this clause (ii) commitment with the good faith expectation that such an amount equal to the Net Proceeds will be applied to satisfy such commitment within 180 days of the end of such commitment 365-day period (an “Acceptable Commitment”) and, in the event any such commitment is later cancelled or terminated for any reason before the Net Proceeds are applied in connection therewith, Bidco or such Restricted Subsidiary enters into another Acceptable Commitment (a “Second Commitment”) within 180 days of such cancellation or termination; provided that if any Second Commitment is later cancelled or terminated for any reason before such an amount equal to the Net Proceeds are is so applied, then Bidco the Company or such Restricted Subsidiary shall prepay be permitted to apply an amount equal to the Loans Net Proceeds in any manner set forth above before the expiration of such 180-day period and, in the event the Company or such Restricted Subsidiary fails to do so, then such Net Proceeds shall constitute Excess Proceeds.
(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) will be deemed to constitute “Excess Proceeds.” When the aggregate amount of Excess Proceeds exceeds $50.0 million (the “Excess Proceeds Threshold”), the Company shall make an offer to all Holders of the Notes and, if required 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 Notes and such Senior Indebtedness that, in the case of Notes, is an integral multiple of $1,000 (but in minimum denominations of $2,000) that may be purchased with such Excess Proceeds at an offer price, in the case of the Notes, 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, and in the case of any Senior Indebtedness at the offer price required by the terms thereof but not to exceed 100% of the principal amount thereof, plus accrued and unpaid interest, if any, in each case in accordance with Section 2.10(cthe procedures set forth in this Indenture. The Company will commence an Asset Sale Offer with respect to Excess Proceeds within 10 Business Days after the date that Excess Proceeds exceed the Excess Proceeds Threshold by delivering the notice required pursuant to the terms of this Indenture, with a copy to the Trustee for delivery to Holders. 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-day period. Upon the completion of each Asset Sale Offer (including a voluntary Asset Sale Offer with respect to all Excess Proceeds even though less than the Excess Proceeds Threshold), the amount of Excess Proceeds shall be reset to zero.
(d) To the extent that the aggregate principal amount of Notes and such Senior Indebtedness, as the case may be, tendered pursuant to an Asset Sale Offer is less than the Excess Proceeds, the Company may use any remaining Excess Proceeds for any purposes not otherwise prohibited under this Indenture. If the aggregate principal amount of Notes or Senior Indebtedness, as the case may be, surrendered by such holders thereof exceeds the amount of Excess Proceeds, such Notes or Senior Indebtedness, as the case may be, will be purchased on a pro rata basis based on the accreted value or principal amount of such Notes or Senior Indebtedness, as the case may be, tendered (and the Trustee or Registrar will select the tendered Notes of tendering holders on a pro rata basis, or such other basis in accordance with DTC procedures based on the amount of Notes tendered).
(ce) Pending the final application of any Net Proceeds pursuant to this covenantProceeds, the holder of such Net Proceeds may apply such Net Proceeds temporarily to reduce Indebtedness outstanding under the Revolving Facility or any other a revolving credit facility or otherwise use invest such Net Proceeds in any manner not prohibited by this Agreement. Bidco Indenture.
(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 any Restricted Subsidiary, as regulations are applicable in connection with the case may be, may elect repurchase of the Notes pursuant to invest in Bidco and its Subsidiaries prior to receiving the Net Proceeds attributable to any given 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 set forth in this Indenture by virtue thereof.
(provided that such investment shall g) The provisions under this Indenture relating to the Company’s obligation to make an offer to repurchase the Notes as a result of an Asset Sale may be made no earlier than execution of a definitive agreement for the relevant Asset Sale) and deem the amount so invested to be applied pursuant to and in accordance with clause (b)(ii) above waived or modified, with respect to such Asset Salethe Notes, with the written consent of the Holders of a majority in principal amount of the Notes then Outstanding.
Appears in 1 contract
Samples: Indenture (Valvoline Inc)
Asset Sales. Effect any Asset Sale except that the following shall be permitted:
(a) Bidco shall notdisposition of used, worn out, obsolete or surplus property by any Company in the ordinary course of business and shall not permit the abandonment or other disposition of Intellectual Property that is, in the reasonable judgment of the Designated Company, no longer economically practicable to maintain or useful in the conduct of the business of the Companies taken as a whole;
(b) so long as no Default is then continuing or would result therefrom, any other Asset Sale (other than the Equity Interests of its any Wholly Owned Subsidiary that is a Restricted Subsidiaries toSubsidiary unless, consummate an after giving effect to any such Asset Sale, unless:
(i) Bidco or such person either ceases to be a Restricted SubsidiarySubsidiary or, as the case may be, receives consideration at the time of such Asset Sale at least equal to the Fair Market Value (as determined at the time of contractually agreeing to such Asset Sale) of the assets sold or otherwise disposed of; and
(ii) except in the case of an Excluded Collateral Subsidiary, becomes a Permitted Asset SwapJoint Venture Subsidiary) for fair market value, if the property or assets sold or otherwise disposed of have a Fair Market Value in excess of the greater of $375,000,000 and 50% of Consolidated EBITDA for the most recently ended Test Period at the time of such disposition, calculated on a Pro Forma Basis, with at least 75% of the consideration therefor received by Bidco for all such Asset Sales or related Asset Sales in which the consideration received exceeds $50,000,000 payable in cash upon such Restricted Subsidiarysale (provided, however, that for the purposes of this clause (b), the following shall be deemed to be cash: (i) any liabilities (as shown on the case may be, is Designated Company’s most recent balance sheet provided hereunder or in the form footnotes thereto) of cash or Cash Equivalents; provided that the amount of:
(A) any liabilities, contingent or otherwise, of Bidco Designated Company or such Restricted Subsidiary, other than liabilities that are by their terms subordinated to the Secured Obligations or payment in cash of the Obligations, that are owed to Bidco or a Restricted Subsidiary that (x) are assumed by the transferee of any such assets (or a third party in connection with such transfer) or (y) are otherwise cancelled or terminated in connection with respect to the transaction with such transferee (other than intercompany debt owed to Bidco or its Restricted Subsidiaries) and, in each case, applicable Asset Sale and for which Bidco Holdings, the Designated Company and all of its Restricted Subsidiaries shall have been validly released;
released by all applicable creditors in writing, (Bii) any securities, notes or other obligations or assets securities received by Bidco the Designated Company or such the applicable Restricted Subsidiary from such transferee that are converted by Bidco the Designated Company or such Restricted Subsidiary into cash or Cash Equivalents (to the extent of the cash or Cash Equivalents received) within 180 days following the closing of such the applicable Asset Sale, and (iii) aggregate non-cash consideration received by the Designated Company or the applicable Restricted Subsidiary having an aggregate fair market value (determined as of the closing of the applicable Asset Sale for which such non-cash consideration is received) not to exceed $75,000,000 at any time (net of any non-cash consideration converted into cash));
(Cc) Indebtedness leases, subleases or licenses of the properties of any Restricted Subsidiary that ceases to be a Restricted Subsidiary as a result Company in the ordinary course of such Asset Sale (other than intercompany debt owed to Bidco business and which do not, individually or in the aggregate, interfere in any Restricted Subsidiary), to material respect with the extent that Bidco and each other Restricted Subsidiary are released from any guarantee of payment ordinary conduct of the business of any Company;
(d) mergers and consolidations, and liquidations and dissolutions in compliance with Section 6.05;
(e) sales, transfers and other dispositions of Receivables for the fair market value thereof in connection with a Permitted Factoring Facility; provided that no Default shall be outstanding after giving effect thereto and (A) with respect to any such sale, transfer or disposition of Receivables incurred by a Company that is organized in a Principal Jurisdiction, such transaction is a Permitted German Alternative Financing, Permitted Customer Account Financing or Permitted Novelis 967770.02F-CHISR1034077.05-CHISR01A - MSW 198 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 and Cash Equivalents in connection with such Asset Sale in accordance with a transaction otherwise permitted under the terms of this Agreement,;
(Dg) consideration consisting assignments and licenses of Indebtedness Intellectual Property of a Borrower any Loan Party and its Subsidiaries in the ordinary course of business and which do not, individually or a Guarantor 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 intercompany debt owed to Bidco or Holdings), (ii) by any Restricted Subsidiary and Grantor to any other than Subordinated IndebtednessRestricted Grantor, (iii) received after the Effective Date from Persons who are not Bidco, Holdings or by any Restricted Subsidiary;
(E) Grantor to any Designated Non-cash Consideration received Unrestricted Grantor so long as the consideration paid by Bidco or such Restricted Subsidiary the Unrestricted Grantor in such Asset Sale having 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 967770.02F-CHISR1034077.05-CHISR01A - MSW 199 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 taken together with fair market value of all other Designated Non-cash Consideration received assets sold pursuant to this clause (Ei) that is at that time outstanding, shall not to exceed the greater of $225,000,000 and 30(1) 2% of Consolidated EBITDA 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 Designated Company formed after the Closing Date to the Designated Company or the Subsidiary of the Designated Company which is to own such Qualified Capital Stock. All Equity Interests issued in accordance with this Section 6.06(p) shall, to the extent 967770.02F-CHISR1034077.05-CHISR01A - MSW 200 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 the Designated Company to a wholly-owned U.S. Loan Party; provided that (i) any security interests granted to the Collateral Agent for the most recently ended Test Period 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 ConsiderationPrincipal Jurisdiction subject to a Permitted Factoring Facility pursuant to Section 6.06(e) at such time, calculated on plus (z) the aggregate consideration received by a Pro Forma Basis (with the Fair Market Value of each such item of Designated Company that is organized in a Non-cash Consideration being measured pursuant 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 clause Section 6.01(e), plus (Ex) at Bidco’s optionthe aggregate amount of Indebtedness incurred by a Subsidiary that is organized in a Non-Loan Party Jurisdiction then outstanding under Section 6.01(m), either plus (y) the aggregate book value at the time of contractually agreeing 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 Sale or at 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 time received and, in either case, without giving effect to subsequent changes in value)greater of (x) 15% of Consolidated Net Tangible Assets and (y) $750,000,000; and
967770.02F-CHISR1034077.05-CHISR01A - MSW 201 (Fs) any Investment, Capital Stock, assets, property or capital or other expenditure Asset Sales of 100% of the kind referred to in Section 6.04(b)(ii) shall be deemed to be Cash Equivalents for purposes Equity Interests of this provision and for no other purpose.
(b) Within the Reinvestment Period after Bidco’s or any Restricted Subsidiary’s receipt Chinese Subsidiary of the Net Proceeds Designated Company to a Chinese holding company that is a direct Wholly Owned Subsidiary of any Asset Sale, Bidco or such Restricted Subsidiary shall apply an amount equal to the Net Proceeds from such Asset Sale,
Designated Company; 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 (A) to prepay Loans or Indebtedness at least the same extent as the security interests in accordance with Section 2.10(c) or such transferred Subsidiary in effect immediately prior to such transfer (B) it being understood that registration of such pledge may take place following such transfer to the extent not required to prepay Loans pursuant to Section 2.10(cby applicable law), to be retained by Bidco and/or Restricted Subsidiaries; or
) and (ii) to make investments in Bidco and its Subsidiaries; provided that Bidco and the Restricted Subsidiaries will be deemed to have complied with this clause (ii) if and to the extent that, within the Reinvestment Period after the Asset Sale that generated the Net Proceeds, Bidco no Default is then continuing or such Restricted Subsidiary has entered into and not abandoned or rejected a binding agreement or letter of intent to consummate any such investment described in this clause (ii) 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 such commitment is later cancelled or terminated for any reason before the Net Proceeds are applied in connection therewith, Bidco or such Restricted Subsidiary enters into another Acceptable Commitment (a “Second Commitment”) within 180 days of such cancellation or termination; provided that if any Second Commitment is later cancelled or terminated for any reason before such Net Proceeds are applied, then Bidco or such Restricted Subsidiary shall prepay the Loans in accordance with Section 2.10(c).
(c) 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 the Revolving Facility or any other revolving credit facility or otherwise use such Net Proceeds in any manner not prohibited by this Agreement. Bidco or any Restricted Subsidiary, as the case may be, may elect to invest in Bidco and its Subsidiaries prior to receiving the Net Proceeds attributable to any given Asset Sale (provided that such investment shall be made no earlier than execution of a definitive agreement for the relevant Asset Sale) and deem the amount so invested to be applied pursuant to and in accordance with clause (b)(ii) above with respect to such Asset Sale.would result therefrom;
Appears in 1 contract
Samples: Credit Agreement (Novelis Inc.)
Asset Sales. (a) Bidco The Issuer shall not, and shall not permit any of its Restricted Subsidiaries to, to consummate an Asset Sale, unless:
(i) Bidco the Issuer or such Restricted Subsidiary, as the case may be, receives consideration at the time of such Asset Sale at least equal to the Fair Market Value fair market value (as 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; and
(ii) except in the case of a Permitted Asset Swap, if the property or assets sold or otherwise disposed of have a Fair Market Value in excess of the greater of $375,000,000 and 50% of Consolidated EBITDA for the most recently ended Test Period at the time of such disposition, calculated on a Pro Forma Basis, at least 7575.0% of the consideration therefor received by Bidco the Issuer or such Restricted Subsidiary, as the case may be, is in the form of cash or Cash Equivalents; provided that the amount of:
(A) any liabilities, contingent liabilities (as shown on the Issuer’s or otherwise, such Restricted Subsidiary’s most recent balance sheet or in the footnotes thereto) of Bidco the Issuer or such Restricted Subsidiary, other than liabilities that are by their terms subordinated to the Secured Obligations or Notes, that are owed to Bidco or a Restricted Subsidiary that (x) are assumed by the transferee of any such assets (or a third party in connection with such transfer) or (y) are otherwise cancelled or terminated in connection with the transaction with such transferee (other than intercompany debt owed to Bidco or its Restricted Subsidiaries) and, in each case, and for which Bidco the Issuer and all of its Restricted Subsidiaries have been validly releasedreleased by all applicable creditors in writing;
(B) any securities, notes or other obligations or assets received by Bidco the Issuer or such Restricted Subsidiary from such transferee that are converted by Bidco the Issuer or such Restricted Subsidiary into cash or Cash Equivalents (to the extent of the cash or Cash Equivalents received) within 180 days following the closing of such Asset Sale;; and
(C) Indebtedness of any Restricted Subsidiary that ceases to be a Restricted Subsidiary as a result of such Asset Sale (other than intercompany debt owed to Bidco or any Restricted Subsidiary), to the extent that Bidco and each other Restricted Subsidiary are released from any guarantee of payment of the principal amount of such Indebtedness in connection with such Asset Sale in accordance with the terms of this Agreement,
(D) consideration consisting of Indebtedness of a Borrower or a Guarantor (other than intercompany debt owed to Bidco or any Restricted Subsidiary and other than Subordinated Indebtedness) received after the Effective Date from Persons who are not Bidco, Holdings or any Restricted Subsidiary;
(E) any Designated Non-cash Consideration received by Bidco the Issuer or such Restricted Subsidiary in such Asset Sale having an aggregate Fair Market Value fair market value, taken together with all other Designated Non-cash Consideration received pursuant to this clause (EC) that is at that time outstanding, not to exceed the greater of (x) $225,000,000 50.0 million and 30(y) 3.25% of Consolidated EBITDA for the most recently ended Test Period Total Assets at the time of the receipt of such Designated Non-cash Consideration, calculated on a Pro Forma Basis (with the Fair Market Value fair market value of each such item of Designated Non-cash Consideration being measured pursuant to this clause (E) at Bidco’s option, either at the time of contractually agreeing to such Asset Sale or at the time received and, in either case, and without giving effect to subsequent changes in value); and
(F) any Investment, Capital Stock, assets, property or capital or other expenditure of the kind referred to in Section 6.04(b)(ii) shall be deemed to be Cash Equivalents for purposes of this provision and for no other purpose.
(b) Within 450 days after the Reinvestment Period after Bidco’s or any Restricted Subsidiary’s receipt of the any Net Proceeds of any Asset Sale, Bidco the Issuer or such Restricted Subsidiary shall Subsidiary, at its option, may apply an amount equal to the Net Proceeds from such Asset Sale,
(i) to reduce indebtedness as follows:
(A) If the assets subject of such Asset Sale constitute Notes Collateral, to prepay Loans permanently reduce (or Indebtedness offer to reduce) 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 or 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 2.10(c3.09 and Section 4.10(c) or 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
(B) If the assets subject of such Asset Sale do not constitute Notes Collateral, but constitute collateral for other Senior Indebtedness, which Lien is permitted by this Indenture, to reduce Obligations under such other Senior Indebtedness that is secured by a Lien, which Lien is permitted by this Indenture; or
(C) If the assets subject of such Asset Sale do not constitute collateral for any Senior Indebtedness, to permanently reduce (or offer to reduce) Obligations under other Senior Indebtedness (and to correspondingly reduce commitments with respect thereto), provided that the Issuer shall equally and ratably reduce 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 or 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 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 of such Asset Sale are the property or assets of a Restricted Subsidiary that is not required to prepay Loans pursuant to Section 2.10(c)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
(E) If the assets subject of such Asset Sale do not constitute Collateral, to permanently reduce Obligations under the Senior Subordinated Notes in an amount not to exceed 2.0% of Total Assets; provided that after giving pro forma effect to such permanent reduction, the Senior Secured Leverage Ratio would be retained by Bidco and/or Restricted Subsidiariesno greater than 3.50 to 1.00; or
(ii) to make investments (A) an Investment in Bidco 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; provided that Bidco 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 by the lenders under the ABL Facility); 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 will be deemed 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 the assets (including Capital Stock) acquired with the Net Proceeds of a disposition of Collateral are pledged as Collateral to have complied with this clause the extent required under the Collateral Documents (except to the extent the Lien thereon is released by the lenders under the ABL Facility); provided that, in the case of clauses (ii) if and to (iii) above, a binding commitment entered into not later than such 450th day shall extend the extent that, within the Reinvestment Period period for such Investment or other payment for an additional 180 days after the Asset Sale that generated end of such 450-day period so long as the Net Proceeds, Bidco Issuer or such other Restricted Subsidiary has entered enters into and not abandoned or rejected a binding agreement or letter of intent to consummate any such investment described in this clause (ii) commitment with the good faith expectation that such Net Proceeds will shall be applied to satisfy such commitment within 180 days of such commitment (an “Acceptable Commitment”) and, in the event any such commitment Acceptable Commitment is later cancelled or terminated for any reason before the Net Proceeds are applied in connection therewith, Bidco the Issuer or such Restricted Subsidiary enters into another Acceptable Commitment (a “Second Commitment”) within 180 days of such cancellation or termination180-day period; provided provided, further, that (x) if any Second Commitment is later cancelled or terminated for any reason before such Net Proceeds are applied, then Bidco applied or (y) such Restricted Subsidiary shall prepay the Loans Net Proceeds are not actually so invested or paid in accordance with Section 2.10(c)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 covenantSection 4.10, the holder of such Net Proceeds may apply such Net Proceeds temporarily to reduce Indebtedness outstanding under the Revolving Facility or any other a revolving credit facility or otherwise use invest such Net Proceeds in any manner not prohibited by this Agreement. Bidco 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 any Restricted Subsidiary, as regulations are applicable in connection with the case may be, may elect repurchase of the Notes pursuant to invest in Bidco and its Subsidiaries prior to receiving the Net Proceeds attributable to any given an Asset Sale (provided Offer. To the extent that such investment 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 made no earlier than execution deemed to have breached its obligations described in this Indenture by virtue thereof. The provisions of this Section 4.10 may be waived or modified with the written consent of the Holders of a definitive agreement for majority in principal amount of the relevant Asset Sale) and deem the amount so invested to be applied pursuant to and in accordance with clause (b)(ii) above with respect to such Asset SaleNotes then outstanding.
Appears in 1 contract
Samples: Senior Secured Notes Indenture (American Tire Distributors Holdings, Inc.)
Asset Sales. (a) Bidco shall The Company will not, and shall will not permit any of its Restricted Subsidiaries to, consummate an Asset Sale, Sale unless:
(i1) Bidco the Company (or such 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 (as determined at the time of contractually agreeing to such Asset Sale) of the assets or Equity Interests sold or issued or otherwise disposed of; and
(ii2) except in the case of a Permitted Asset Swap, if the property or assets sold or otherwise disposed of have a Fair Market Value in excess of the greater of $375,000,000 and 50% of Consolidated EBITDA for the most recently ended Test Period at the time of such disposition, calculated on a Pro Forma Basis, at least 75% of the consideration therefor received in the Asset Sale by Bidco the Company or such Restricted Subsidiary, as the case may be, Subsidiary is in the form of cash or Cash Equivalents; provided that . For purposes of this clause (2), each of the amount offollowing shall be deemed to be cash:
(A) any liabilities, contingent or otherwiseas shown on the Company’s most recent internal balance sheet, of Bidco the Company or such any Restricted Subsidiary, Subsidiary (other than contingent liabilities and liabilities that are by their terms subordinated to the Secured Obligations Notes or any Note Guarantee) that are owed to Bidco or a Restricted Subsidiary that (x) are unconditionally assumed by the transferee of any such assets (to the extent that the Company or a third party in connection the applicable Restricted Subsidiary is released from all liability with such transfer) or (y) are otherwise cancelled or terminated in connection with the transaction with such transferee (other than intercompany debt owed to Bidco or its Restricted Subsidiaries) and, in each case, for which Bidco and all of its Restricted Subsidiaries have been validly releasedrespect thereto;
(B) any securities, notes or other obligations or assets received by Bidco the Company or any such Restricted Subsidiary from such transferee that are converted by Bidco the Company or such Restricted Subsidiary into cash or Cash Equivalents (within 90 days after receipt, to the extent of the cash or Cash Equivalents received) within 180 days following the closing of such Asset Salereceived in that conversion;
(C) Indebtedness of any Restricted Subsidiary that ceases to be a Restricted Subsidiary as a result of such Asset Sale (other than intercompany debt owed to Bidco or any Restricted Subsidiary), to the extent that Bidco and each other Restricted Subsidiary are released from any guarantee of payment of the principal amount of such Indebtedness in connection with such Asset Sale in accordance with the terms of this Agreement,
(D) consideration consisting of Indebtedness of a Borrower or a Guarantor (other than intercompany debt owed to Bidco or any Restricted Subsidiary and other than Subordinated Indebtedness) received after the Effective Date from Persons who are not Bidco, Holdings or any Restricted Subsidiary;
(E) any Designated Non-cash Noncash Consideration received by Bidco the Company or such any Restricted Subsidiary in such Asset Sale having an aggregate Fair Market Value Value, taken together with all other Designated Non-cash Noncash Consideration received pursuant to this clause (EC) that is at that time outstandingsince the date of this Indenture, not to exceed the greater of (x) $225,000,000 15.0 million and 30(y) 3.0% of Consolidated EBITDA for the most recently ended Test Period Total Assets at the time of the receipt of such Designated Non-cash Noncash Consideration, calculated on a Pro Forma Basis (with the Fair Market Value of each such item of Designated Non-cash Noncash Consideration being measured pursuant to this clause (E) at Bidco’s option, either at the time of contractually agreeing to such Asset Sale or at the time received and, in either case, and without giving effect to subsequent changes in value); and;
(FD) any Investment, Capital Stock, assets, property stock or capital or other expenditure assets of the kind referred to in clauses (2) or (4) of Section 6.04(b)(ii4.10(b) shall be deemed to be Cash Equivalents for purposes hereof; and
(E) a combination of the consideration specified in the foregoing clauses (A) through (D) of this provision and for no other purposeSection 4.10(a).
(b) Within 365 days after the Reinvestment Period after Bidco’s or any Restricted Subsidiary’s receipt of the any Net Proceeds of any from an Asset Sale, Bidco the 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 the case of any such acquisition of Capital Stock, the Permitted Business is or becomes or is merged with or into a Restricted Subsidiary shall apply an amount equal of the Company;
(3) to make a capital expenditure;
(4) to acquire other assets that are not classified as current assets under GAAP and that are used or useful in a Permitted Business;
(5) to repay other Senior Debt; provided that to the Net Proceeds from 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 Asset Sale,
purchases are at or above 100% of the principal amount thereof) or by making an offer (i) (A) to prepay Loans or Indebtedness in accordance with the procedures set forth in Section 2.10(c) or (B3.09) to all Holders to purchase their Notes at 100% of the extent not required to prepay Loans pursuant to Section 2.10(c)principal amount thereof, plus the amount of accrued and unpaid interest and Special Interest, if any, on the amount of Notes to be retained by Bidco and/or Restricted Subsidiariesprepaid; or
(ii6) to make investments in Bidco a combination of repayments, acquisitions and its Subsidiariesexpenditures permitted by the immediately foregoing clauses (1) through (5) of this Section 4.10(b); provided that Bidco and the Restricted Subsidiaries will be deemed to have complied with this clause (ii) if and to the extent that, within in the Reinvestment Period case of clauses (2), (3) and (4) above 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 Asset Sale that generated end of such 365-day period so long as the Net Proceeds, Bidco Company or such a Restricted Subsidiary has entered enters into and not abandoned or rejected a binding agreement or letter of intent to consummate any such investment described in this clause (ii) commitment with the good faith expectation that such Net Proceeds will be applied to satisfy such commitment within such 180 days of such commitment (an “Acceptable Commitment”) and, in ). In the event any such commitment an Acceptable Commitment is later cancelled or terminated for any reason before the Net Proceeds are applied in connection therewiththerewith but after the end of the original 365-day period, Bidco or then such Restricted Subsidiary enters into another Acceptable Commitment (a “Second Commitment”) within 180 days Net Proceeds will be deemed to constitute Excess Proceeds on the date of such cancellation or termination; provided that . In addition to the foregoing, at any time and on one or more occasions prior to such 365th day (as extended, if any Second Commitment is later cancelled or terminated for any reason before such applicable), the Company in its sole discretion may apply Net Proceeds are applied, then Bidco from one or such Restricted Subsidiary shall prepay the Loans more Asset Sales to make an Asset Sale Offer as described below in accordance with this Section 2.10(c).
(c) 4.10. Pending the final application of any Net Proceeds pursuant to this covenantProceeds, the holder of such Net Proceeds Company may apply such Net Proceeds temporarily to reduce Indebtedness outstanding under the Revolving Facility or any other revolving credit facility borrowings or otherwise use such invest the Net Proceeds in any manner that is not prohibited by this AgreementIndenture. Bidco or any Restricted Subsidiary, as the case may be, may elect to invest in Bidco and its Subsidiaries prior to receiving the Any Net Proceeds attributable to any given 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 (provided Offer to all Holders of Notes and all holders of other Indebtedness that such investment shall be made no earlier than execution is pari passu with the Notes containing provisions similar to those set forth in this Indenture with respect to offers to purchase or redeem with the proceeds of a definitive agreement for the relevant Asset Sale) and deem the amount so invested to be applied pursuant to and sales of assets in accordance with clause (b)(ii) above with respect 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 SaleSale 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. Effect any Asset Sale except that the following shall be permitted:
(a) Bidco shall notdisposition of used, worn out, obsolete or surplus property by any Company in the ordinary course of business and shall not permit the abandonment or other disposition of Intellectual Property that is, in the reasonable judgment of the Designated Company, no longer economically practicable to maintain or useful in the conduct of the business of the Companies taken as a whole;
(b) so long as no Default is then continuing or would result therefrom, any other Asset Sale (other than the Equity Interests of its any Wholly Owned Subsidiary that is a Restricted Subsidiaries toSubsidiary unless, consummate an after giving effect to any such Asset Sale, unless:
(i) Bidco or such person either ceases to be a Restricted SubsidiarySubsidiary or, as the case may be, receives consideration at the time of such Asset Sale at least equal to the Fair Market Value (as determined at the time of contractually agreeing to such Asset Sale) of the assets sold or otherwise disposed of; and
(ii) except in the case of an Excluded Collateral Subsidiary, becomes a Permitted Asset SwapJoint Venture Subsidiary) for fair market value, if the property or assets sold or otherwise disposed of have a Fair Market Value in excess of the greater of $375,000,000 and 50% of Consolidated EBITDA for the most recently ended Test Period at the time of such disposition, calculated on a Pro Forma Basis, with at least 75% of the consideration therefor received by Bidco for all such Asset Sales or related Asset Sales in which the consideration received exceeds $50,000,000 payable in cash upon such Restricted Subsidiarysale (provided, however, that for the purposes of this clause (b), the following shall be deemed to be cash: (i) any liabilities (as shown on the case may be, is Designated Company’s most recent balance sheet provided hereunder or in the form footnotes thereto) of cash or Cash Equivalents; provided that the amount of:
(A) any liabilities, contingent or otherwise, of Bidco Designated Company or such Restricted Subsidiary, other than liabilities that are by their terms subordinated to the Secured Obligations or payment in cash of the Obligations, that are owed to Bidco or a Restricted Subsidiary that (x) are assumed by the transferee of any such assets (or a third party in connection with such transfer) or (y) are otherwise cancelled or terminated in connection with respect to the transaction with such transferee (other than intercompany debt owed to Bidco or its Restricted Subsidiaries) and, in each case, applicable Asset Sale and for which Bidco Holdings, the Designated Company and all of its Restricted Subsidiaries shall have been validly released;
released by all applicable creditors in writing, (Bii) any securities, notes or other obligations or assets securities received by Bidco the Designated Company or such the applicable Restricted Subsidiary from such transferee that are converted by Bidco the Designated Company or such Restricted Subsidiary into cash or Cash Equivalents (to the extent of the cash or Cash Equivalents received) within 180 days following the closing of such the applicable Asset Sale, and (iii) aggregate non-cash consideration received by the Designated Company or the applicable Restricted Subsidiary having an aggregate fair market value (determined as of the closing of the applicable Asset Sale for which such non-cash consideration is received) not to exceed $75,000,000 at any time (net of any non-cash consideration converted into cash));
(Cc) Indebtedness leases, subleases or licenses of the properties of any Restricted Subsidiary that ceases to be a Restricted Subsidiary as a result Company in the ordinary course of such Asset Sale (other than intercompany debt owed to Bidco business and which do not, individually or in the aggregate, interfere in any Restricted Subsidiary), to material respect with the extent that Bidco and each other Restricted Subsidiary are released from any guarantee of payment ordinary conduct of the business of any Company; 1117312.02-CHISR02A - MSW
(d) mergers and consolidations, and liquidations and dissolutions in compliance with Section 6.05;
(e) sales, transfers and other dispositions of Receivables for the fair market value thereof in connection with a Permitted Factoring Facility; provided that no Default shall be outstanding after giving effect thereto and (A) with respect to any such sale, transfer or disposition of Receivables incurred by a Company that is organized in a Principal Jurisdiction, such transaction is a Permitted German Alternative Financing, Permitted Customer Account Financing or Permitted Novelis Switzerland Financing, (B) with respect to any such sale, transfer of disposition of Receivables incurred by a Company that is organized in a Non-Principal Jurisdiction, the sum of (w) the aggregate outstanding principal amount of the Indebtedness of all Securitization Entities that are organized in a Non-Principal Jurisdiction under all Qualified Securitization Transactions under Section 6.01(e), plus (x) the aggregate amount of Indebtedness incurred by a Subsidiary that is organized in a Non-Principal Jurisdiction then outstanding under Section 6.01(m), plus (y) the aggregate book value at the time of determination of the then outstanding Receivables of a Company that is organized in a Non-Principal Jurisdiction subject to a Permitted Factoring Facility pursuant to this Section 6.06(e) at such time, plus (z) the aggregate consideration received by a Company that is organized in a Non-Principal Jurisdiction for Asset Sales permitted under Section 6.06(r) (net of amounts paid by such Company to repurchase the Inventory subject to such Asset Sales) (but in each case excluding any Permitted German Alternative Financing, Permitted Novelis Switzerland Financing and any Permitted Customer Account Financing), shall not exceed the greater of (x) 15% of Consolidated Net Tangible Assets and (y) $750,000,000, and (C) with respect to any such sale, transfer or disposition of Receivables incurred by a Company that is organized in a Non-Loan Party Jurisdiction, the sum of (w) the aggregate outstanding principal amount of the Indebtedness of all Securitization Entities that are organized in a Non-Loan Party Jurisdiction under all Qualified Securitization Transactions under Section 6.01(e), plus (x) the aggregate amount of Indebtedness incurred by a Subsidiary that is organized in a Non-Loan Party Jurisdiction then outstanding under Section 6.01(m), plus (y) the aggregate book value at the time of determination of the then outstanding Receivables of a Company that is organized in a Non-Loan Party Jurisdiction subject to a Permitted Factoring Facility pursuant to this Section 6.06(e) at such time, plus (z) the aggregate consideration received by a Company that is organized in a Non-Loan Party Jurisdiction for Asset Sales permitted under Section 6.06(r) (net of amounts paid by such Company to repurchase the Inventory subject to such Asset Sales) (but in each case excluding any Permitted German Alternative Financing, any Permitted Novelis Switzerland Financing and any Permitted Customer Account Financing), shall not exceed the greater of (x) 15% of Consolidated Net Tangible Assets and (y) $750,000,000;
(f) the sale or disposition of cash and Cash Equivalents in connection with such Asset Sale in accordance with a transaction otherwise permitted under the terms of this Agreement,; 1117312.02-CHISR02A - MSW
(Dg) consideration consisting assignments and licenses of Indebtedness Intellectual Property of a Borrower any Loan Party and its Subsidiaries in the ordinary course of business and which do not, individually or a Guarantor 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 intercompany debt owed to Bidco or Holdings), (ii) by any Restricted Subsidiary and Grantor to any other than Subordinated IndebtednessRestricted Grantor, (iii) received after the Effective Date from Persons who are not Bidco, Holdings or by any Restricted Subsidiary;
(E) Grantor to any Designated Non-cash Consideration received Unrestricted Grantor so long as the consideration paid by Bidco or such Restricted Subsidiary the Unrestricted Grantor in such Asset Sale having 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 taken together with fair market value of all other Designated Non-cash Consideration received assets sold pursuant to this clause (Ei) that is at that time outstanding, shall not to exceed the greater of $225,000,000 and 30(1) 2% of Consolidated EBITDA for Net Tangible Assets and (2) $100,000,000 in the most recently ended Test Period at aggregate since the time of Closing Date; provided that so long as the receipt of such Designated Non-cash Consideration, calculated on a Pro Forma Basis (with the Fair Market Value of each such item of Designated Non-cash Consideration being measured assets acquired by any Company pursuant to this clause (E) at Bidco’s optionthe respective Asset Swap are located in the same country as the assets sold by such Company, either at the time of contractually agreeing such aggregate cap will not apply to such Asset Sale or at the time received and, in either case, without giving effect to subsequent changes in value); andSwap;
(Fj) any Investmentsales, Capital Stocktransfers 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, assets, property or capital transfers or other expenditure dispositions of the kind referred to in Securitization Assets by a Securitization Entity under, and pursuant to, a Qualified Securitization Transaction permitted under Section 6.04(b)(ii) shall be deemed to be Cash Equivalents for purposes of this provision and for no other purpose.6.01(e);
(b) Within the Reinvestment Period after Bidco’s or any Restricted Subsidiary’s receipt of the Net Proceeds of any Asset Sale, Bidco or such Restricted Subsidiary shall apply an amount equal to the Net Proceeds from such Asset Sale,
(i) (A) to prepay Loans or Indebtedness in accordance with Section 2.10(c) or (Bk) to the extent not required to prepay Loans pursuant to Section 2.10(c), to be retained by Bidco and/or Restricted Subsidiaries; or
(ii) to make investments in Bidco and its Subsidiaries; provided that Bidco and the Restricted Subsidiaries will be deemed to have complied with this clause (ii) if and to the extent that, within the Reinvestment Period after the constituting an Asset Sale that generated the Net Proceeds, Bidco or such Restricted Subsidiary has entered into and not abandoned or rejected a binding agreement or letter of intent to consummate any such investment described in this clause (ii) 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 such commitment is later cancelled or terminated for any reason before the Net Proceeds are applied in connection therewith, Bidco or such Restricted Subsidiary enters into another Acceptable Commitment (a “Second Commitment”) within 180 days of such cancellation or termination; provided that if any Second Commitment is later cancelled or terminated for any reason before such Net Proceeds are applied, then Bidco or such Restricted Subsidiary shall prepay the Loans in accordance with Section 2.10(c).
(c) Pending the final application of any Net Proceeds pursuant to this covenantSale, the holder Permitted Holdings Amalgamation; 1117312.02-CHISR02A - MSW (l) issuances of such Net Proceeds may apply such Net Proceeds temporarily to reduce Indebtedness outstanding under the Revolving Facility or any other revolving credit facility or otherwise use such Net Proceeds in any manner not prohibited Equity Interests by this Agreement. Bidco or any Restricted Subsidiary, as the case may be, may elect to invest in Bidco Joint Venture Subsidiaries and its Subsidiaries prior to receiving the Net Proceeds attributable to any given Asset Sale (provided that such investment shall be made no earlier than execution of a definitive agreement for the relevant Asset Sale) and deem the amount so invested to be applied pursuant to and in accordance with clause (b)(ii) above with respect to such Asset Sale.Excluded Collateral Subsidiaries;
Appears in 1 contract
Samples: Credit Agreement (Novelis Inc.)
