Asset Sales. (i) The Company shall not, and shall not permit any Restricted Subsidiary to, engage in any Asset Sale unless (x) the consideration received by the Company or such Restricted Subsidiary for such Asset Sale is not less than the fair market value of the assets sold evidenced by a resolution of the board of directors of such entity set forth in an Officers' Certificate delivered to the Holders and (y) the consideration received by the Company or the relevant Restricted Subsidiary in respect of such Asset Sale consists of at least 75% cash or Cash Equivalents (for purposes of this clause (y), cash and Cash Equivalents includes (A) any liabilities (as reflected in the Company's consolidated balance sheet) of the Company or any Restricted Subsidiary (other than contingent liabilities and liabilities that are by their terms subordinated to the Notes or any Guarantee) that are assumed by any transferee of any such assets or other property in such Asset Sale, and where the Company or the relevant Restricted Subsidiary is released from any further liability in connection therewith with respect to such liabilities, (B) any securities, notes or other similar obligations received by the Company or any such Restricted Subsidiary from such transferee that are converted within 180 days of the consummation of the related Asset Sale by the Company or such Restricted Subsidiary into cash and Cash Equivalents (to the extent of the net cash proceeds or the Cash Equivalents (net of related costs) received upon such conversion) and (C) any Designated Noncash Consideration received by the Company or any such Restricted Subsidiary in the Asset Sale having an aggregate fair market value, as determined by the Board of the Company, taken together with all other Designated Noncash Consideration received pursuant to this clause that is at that time outstanding, not to exceed the greater of: (1) $10,000,000; and (2) 15% of Consolidated Tangible Assets at the time of the receipt of such Designated Noncash Consideration (with the fair market value of each item of such Designated Noncash Consideration being measured at the time received and without giving effect to subsequent changes in value). (ii) If the Company or any Restricted Subsidiary engages in an Asset Sale, the Company may, at its option, within 12 months after such Asset Sale, (1) apply all or a portion of the Net Cash Proceeds to the permanent reduction of amounts outstanding under the Credit Agreement (and to correspondingly reduce the commitments, if any, with respect thereto) or to the permanent repayment of other Senior Indebtedness of the Company or a Restricted Subsidiary, provided that the repayment of any Indebtedness incurred under the Credit Agreement in connection with the acquisition of any Facility with the proceeds of any subsequent Sale and Leaseback Transaction relating to such Facility shall not be required to result in the permanent reduction of the amounts outstanding under the Credit Agreement or correspondingly permanently reduce the commitments thereunder, or (2) invest (or enter into a legally binding agreement to invest) all or a portion of such Net Cash Proceeds in properties and assets to replace the properties and assets that were the subject of the Asset Sale or in properties and assets that will be used in the businesses of the Company or its Restricted Subsidiaries, as the case may be, existing on the Closing Date or in businesses the same, similar or reasonably related thereto. If any such legally binding agreement to invest such Net Cash Proceeds is terminated, the Company may, within 90 days of such termination or within 12 months of such Asset Sale, whichever is later, invest such Net Cash Proceeds as provided in clause (1) or (2) (without regard to the parenthetical contained in such clause (2)) above. Pending the final application of any such Net Cash Proceeds, the Company may temporarily reduce revolving credit borrowings or otherwise invest such Net Cash Proceeds in a manner that is not prohibited by this Agreement. The amount of such Net Cash Proceeds not so used as set forth above in this paragraph shall constitute "Excess Proceeds." (c) When the aggregate amount of Excess Proceeds exceeds $10,000,000, the Company will, within 30 days thereafter, make an offer to purchase (an "Excess Proceeds Offer") from all Holders of Notes on a pro rata basis, in accordance with the procedures set forth in this Agreement, the maximum principal amount (expressed as a multiple of $1,000) of Notes that may be purchased with the Excess Proceeds, at a purchase price in cash equal to 100% of the principal amount thereof, plus accrued interest, if any, to the date such offer to purchase is consummated. To the extent that the aggregate principal amount of Notes tendered pursuant to such offer to purchase is less than the Excess Proceeds, the Company may use such deficiency for general corporate purposes. If the aggregate principal amount of Notes validly tendered and not withdrawn by holders thereof exceeds the Excess Proceeds, the Notes to be purchased will be selected on a pro rata basis. Upon completion of such offer to purchase, the amount of Excess Proceeds will be reset to zero. (iii) 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 Excess Proceeds Offer. To the extent that the provisions of any securities laws or regulations conflict with the Asset Sales provisions of this Agreement, the Company will comply with the applicable securities laws and regulations and will not be deemed to have breached its obligations under Section 5(j) of this Agreement by virtue of such conflict.
Appears in 2 contracts
Samples: Note Purchase Agreement (Signal Medical Services), Note Purchase Agreement (Jw Childs Equity Partners Ii Lp)
Asset Sales. (i) The Company shall will not, and shall will not permit any of its Restricted Subsidiary Subsidiaries to, engage in any consummate an Asset Sale unless unless:
(x1) the Company (or such Restricted Subsidiary, as the case may be) receives consideration at the time of the Asset Sale at least equal to the fair market value of the assets or Equity Interests issued or sold or otherwise disposed of;
(2) in the case of Asset Sales involving consideration in excess of $10.0 million, the fair market value is determined in good faith by the Company’s Board of Directors; and
(3) at least 75% of the consideration received in the Asset Sale by the Company or such Restricted Subsidiary for such Asset Sale is not less than in the fair market value form of the assets sold evidenced by a resolution of the board of directors of such entity set forth in an Officers' Certificate delivered to the Holders and (y) the consideration received by the Company or the relevant Restricted Subsidiary in respect of such Asset Sale consists of at least 75% cash or Cash Equivalents (for Equivalents. For purposes of this clause (y)3) above, cash and Cash Equivalents includes the amount of (Ai) any liabilities (as reflected shown on the Company’s or the applicable Restricted Subsidiary’s most recent balance sheet or in the Company's consolidated balance sheetnotes thereto) of the Company or any Restricted Subsidiary (other than contingent liabilities and liabilities that are by their terms subordinated to the Notes or any Guaranteethe Guarantees) that are assumed by any the transferee of any such assets or other property in such Asset Sale, and where from which the Company or the relevant and all Restricted Subsidiary is Subsidiaries have been validly released from any further liability by all creditors in connection therewith with respect to such liabilitieswriting, (Bii) any securities, notes or other similar obligations securities received by the Company or any such Restricted Subsidiary from such transferee that are converted within 180 days of the consummation of the related Asset Sale by the Company or such Restricted Subsidiary into cash and Cash Equivalents (to the extent of the net cash proceeds received) within 180 days following the closing of such Asset Sale, (iii) any asset described in clauses (2) or the Cash Equivalents (net of related costs3) received upon such conversion) below and (Civ) any Designated Noncash Consideration received by the Company or any of its Restricted Subsidiaries in such Restricted Subsidiary in the Asset Sale having an aggregate fair market value, value (as determined in good faith by the Board of Directors of the Company), taken together with all other Designated Noncash Consideration received pursuant to this clause (iv) that is at that time outstanding, not to exceed the greater of:
of (1x) $10,000,000; and
20.0 million and (2y) 15an amount equal to 0.67% of Consolidated Tangible Total Assets at the time of the receipt of Company on the date on which such Designated Noncash Consideration is received (with the fair market value of each item of such Designated Noncash Consideration being measured at the time received and without giving effect to subsequent changes in value).
(ii) If , shall be deemed to be cash for purposes of this paragraph and for no other purpose. Within 365 days after the Company or receipt of any Restricted Subsidiary engages in Net Proceeds from an Asset Sale, the Company may(or, if applicable, the Restricted Subsidiary) may apply those Net Proceeds at its option, within 12 months after such Asset Sale, :
(1) apply all or a portion of the Net Cash Proceeds to the permanent reduction of amounts outstanding reduce Obligations under the Credit Agreement (and to correspondingly reduce the commitments, if any, with respect thereto) or to the permanent repayment of other Senior Secured Indebtedness of the Company or a Restricted Subsidiary, provided that the repayment of any Guarantor or Indebtedness incurred under the Credit Agreement in connection with the acquisition of any Facility with the proceeds of any subsequent Sale and Leaseback Transaction relating to such Facility shall not be required to result in the permanent reduction of the amounts outstanding under the Credit Agreement or correspondingly permanently reduce the commitments thereunder, or (2) invest (or enter into a legally binding agreement to invest) all or a portion of such Net Cash Proceeds in properties and assets to replace the properties and assets that were the subject of the Asset Sale or in properties and assets that will be used in the businesses of the Company that ranks pari passu with the Notes or its Restricted Subsidiaries, as Indebtedness of a Guarantor that ranks pari passu with such Guarantor’s Guarantee of the case may be, existing on the Closing Date or in businesses the same, similar or reasonably related thereto. If any such legally binding agreement to invest such Net Cash Proceeds is terminated, Notes (provided that if the Company mayor such Guarantor shall so reduce Obligations under Indebtedness that rank pari passu with the Notes or a related Guarantee (other than Secured Indebtedness), within 90 days of such termination it will equally and ratably reduce Obligations under the Notes by making, or within 12 months of such Asset Sale, whichever is later, invest such Net Cash Proceeds as provided in clause (1) or (2) (without regard to the parenthetical contained in such clause (2)) above. Pending the final application of any such Net Cash Proceeds, causing the Company may temporarily reduce revolving credit borrowings or otherwise invest such Net Cash Proceeds in a manner that is not prohibited by this Agreement. The amount of such Net Cash Proceeds not so used as set forth above in this paragraph shall constitute "Excess Proceeds."
(c) When the aggregate amount of Excess Proceeds exceeds $10,000,000to make, the Company will, within 30 days thereafter, make an offer to purchase (an "Excess Proceeds Offer") from all Holders of Notes on a pro rata basis, in accordance with the procedures set forth below in this Agreement, the maximum principal amount (expressed as a multiple of $1,000Section 4.10 for an Asset Sale Offer) to all holders of Notes that may be purchased with the Excess Proceeds, to purchase at a purchase price in cash equal to 100% of the principal amount thereof, plus accrued interestand unpaid interest and Additional Interest, if any, on the pro rata principal amount of Notes) or Indebtedness of a Restricted Subsidiary that is not a Guarantor, in each case other than Indebtedness owed to the Company or an Affiliate of the Company;
(2) to make (A) an investment in any one or more businesses; provided that such investment in any business is in the form of the acquisition of Capital Stock and results in the Company or a Restricted Subsidiary owning an amount of the Capital Stock of such business such that such business constitutes a Restricted Subsidiary, (B) capital expenditures or (C) an investment in other non-current assets, in each of (A), (B) and (C), used or useful in a Permitted Business; and/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 it results in the Company or a Restricted Subsidiary owning an amount of the Capital Stock of such business such that such business constitutes a Restricted Subsidiary, (B) properties or (C) assets that, in each of (A), (B) and (C), replace the businesses, properties and assets that are the subject of such Asset Sale. Any Net Proceeds from an Asset Sale not applied or invested in accordance with the preceding paragraph within 365 days from the date of the receipt of such Net Proceeds shall constitute “Excess Proceeds”; provided that if, during such 365-day period, the Company or a Restricted Subsidiary enters into a definitive binding agreement committing it to apply such Net Proceeds in accordance with the requirements of clause (2) or (3) of the immediately preceding paragraph after such 365th day, such 365-day period will be extended with respect to the amount of Net Proceeds so committed for a period not to exceed 180 days until such Net Proceeds are required to be applied in accordance with such agreement (or, if earlier, until termination of such agreement). When the aggregate amount of Excess Proceeds exceeds $20.0 million, the Company or the applicable Restricted Subsidiary will make an offer (an “Asset Sale Offer”) to all holders of the Notes and 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 Indebtedness that ranks pari passu with the Notes that may be purchased out of the Excess Proceeds. The offer price in any Asset Sale Offer will be equal to 100% of the principal amount thereof, plus accrued and unpaid interest and Additional Interest, if any, to the date such offer to purchase is consummatedof purchase, and will be payable in cash. To Pending the extent that the aggregate principal amount final application of Notes tendered pursuant to such offer to purchase is less than the Excess any Net Proceeds, the Company or the applicable Restricted Subsidiary may temporarily reduce revolving credit borrowings or otherwise invest the Net Proceeds in any manner that is not prohibited by this Indenture. If any Excess Proceeds remain after consummation of an Asset Sale Offer, the Company or the applicable Restricted Subsidiary may use such deficiency those Excess Proceeds for general corporate purposesany purpose not otherwise prohibited by this Indenture. If the aggregate principal amount of Notes validly tendered and not withdrawn by holders thereof into such Asset Sale Offer exceeds the amount of Excess Proceeds, the Trustee will select the Notes to be purchased will be selected on a pro rata basis. Upon completion of such offer to purchaseeach Asset Sale Offer, the amount of Excess Proceeds under this Indenture will be reset to at zero.
(iii) . The Company or the applicable Restricted Subsidiary will comply with the requirements of Rule 14e-1 under the Exchange Act and any other securities laws and regulations thereunder to the extent such those laws and regulations are applicable in connection with each repurchase of Notes pursuant to an Excess Proceeds Asset Sale Offer. To the extent that the provisions of any securities laws or regulations conflict with the Asset Sales Sale provisions of this AgreementIndenture, the Company or the applicable Restricted Subsidiary will comply with the applicable securities laws and regulations and will not be deemed to have breached its obligations under Section 5(j) the Asset Sale provisions of this Agreement Indenture by virtue of such conflict.
Appears in 2 contracts
Samples: Credit Agreement (Music123, Inc.), Credit Agreement (Music123, Inc.)
Asset Sales. (ia) The Company shall will not, and shall will not permit any Restricted Subsidiary to, engage in directly or indirectly, consummate any Asset Sale unless unless:
(x1) The Company (or a Restricted Subsidiary, as the case may be) receives consideration at the time of such Asset Sale at least equal to the Fair Market Value (determined as of the time of contractually agreeing to such Asset Sale) of the assets or Equity Interests issued or sold or otherwise disposed of in such Asset Sale (such Fair Market Value to be determined by (i) an executive officer of the Company or such Subsidiary if the value is less than $50.0 million or (ii) in all other cases by a resolution of the Company’s Board of Directors (or of a committee appointed thereby for such purposes)); and
(2) At least 75% of the total consideration from such Asset Sale, together with all other Asset Sales since the date of this Indenture (on a cumulative basis) received by the Company or such Restricted Subsidiary for such Asset Sale is not less than Subsidiary, as the fair market value of the assets sold evidenced by a resolution of the board of directors of such entity set forth in an Officers' Certificate delivered to the Holders and (y) the consideration received by the Company or the relevant Restricted Subsidiary in respect of such Asset Sale case may be consists of at least 75% cash or Cash Equivalents (for or Marketable Securities. For purposes of this clause (y)provision, cash and Cash Equivalents includes each of the following shall be deemed to be cash:
(A) the amount of any liabilities (Indebtedness or other liabilities, as reflected in shown on the Company's ’s most recent consolidated balance sheet) , of the Company or any Restricted Subsidiary (other than contingent liabilities and or liabilities that are by their terms subordinated to the Notes or any Guaranteethe related Guarantees) that are assumed by any the transferee of any such assets or other property in such Asset Sale, and where from which the Company or such Restricted Subsidiary, as the relevant Restricted Subsidiary case may be, is validly released from any by all creditors against further liability in connection therewith with respect to such liabilities, liability;
(B) the amount of any securities, notes Notes or other similar obligations received by the Company or any such Restricted Subsidiary from such transferee that are converted within 180 days following the closing of the consummation of the related such Asset Sale Sale, subject to ordinary settlement periods, converted by the Company or such Restricted Subsidiary into cash and or Cash Equivalents (to the extent of the net cash proceeds or the Cash Equivalents (net of related costs) received upon such conversion) and actually so received);
(C) the Fair Market Value of any assets (other than securities) received by the Company or any Restricted Subsidiary to be used by the Company or any Restricted Subsidiary in a Permitted Business;
(D) any Designated Noncash Non-cash Consideration received by the Company or any such Restricted Subsidiary in the an Asset Sale having an aggregate fair market value, as determined by the Board of the CompanyFair Market Value, taken together with all other Designated Noncash Non-cash Consideration received pursuant to this clause (D) that is at that time outstanding, not to exceed the greater of:
of (1i) 2.0% of the Company’s Consolidated Total Assets and (ii) $10,000,000; and
(2) 15% of Consolidated Tangible Assets 50.0 million at the time of the receipt of such Designated Noncash Consideration (Non-cash Consideration, with the fair market value Fair Market Value of each item of such Designated Noncash Non-cash Consideration being measured at the time received and without giving effect to subsequent changes in value);
(E) Indebtedness of any Restricted Subsidiary 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 are released from any guarantee of payment of such Indebtedness in connection with such Asset Sale; and
(F) consideration consisting of long-term Indebtedness of the Company (other than Subordinated Indebtedness) received after the date of this Indenture from Persons who are not the Company or any Restricted Subsidiary which is promptly terminated or cancelled by the Company.
(iib) If the Company or any Restricted Subsidiary engages in an Asset Sale, the Company may, at its option, within 12 months after or such Asset Sale, Restricted Subsidiary shall apply an amount equal to all or any of the Net Proceeds therefrom to:
(1) apply repay Indebtedness under any Credit Facility, and in the case of any such repayment under any revolving credit facility, effect a permanent reduction in the availability under such revolving credit facility, or repay Indebtedness (other than Disqualified Stock) of a Restricted Subsidiary that is not a Guarantor (other than Indebtedness owed to the Company);
(2) (A) invest all or a portion any part of the Net Cash Proceeds thereof in capital expenditures or the purchase of assets to be used by the permanent reduction Company or any Restricted Subsidiary in a Permitted Business, (B) acquire Equity Interests in a Person that is a Restricted Subsidiary or in a Person engaged primarily in a Permitted Business that shall become a Restricted Subsidiary immediately upon the consummation of amounts outstanding under the Credit Agreement such acquisition or (C) a combination of (A) and (B); or
(3) to correspondingly reduce the commitments, if any, with respect thereto) or to the permanent repayment of other Senior Indebtedness fund obligations of the Company or a any Restricted Subsidiary, provided that the repayment of any Indebtedness incurred Subsidiary under the Credit Agreement in connection with the acquisition of any Facility with the proceeds of any subsequent Sale and Leaseback Transaction relating to such Facility shall not be required to result in the permanent reduction of the amounts outstanding under the Credit Agreement or correspondingly permanently reduce the commitments thereunder, or (2) invest (or enter into a legally binding agreement to invest) all or a portion of such Net Cash Proceeds in properties and assets to replace the properties and assets that were the subject of the Asset Sale or in properties and assets that will be used in the businesses of the Company or its Restricted Subsidiaries, as the case may be, existing on the Closing Date or in businesses the same, similar or reasonably related thereto. If any such legally binding agreement to invest such Net Cash Proceeds is terminated, the Company may, within 90 days of such termination or within 12 months of such Asset Sale, whichever is later, invest such Net Cash Proceeds as provided in clause (1) or (2) (without regard to the parenthetical contained in such clause (2)) abovePartnership Parks Agreements. Pending the final application of an amount equal to any such Net Cash Proceeds, the Company or such Restricted Subsidiary may temporarily reduce revolving credit borrowings indebtedness under a Credit Facility, if any, or otherwise invest such Net Cash Proceeds in a any manner that is not prohibited by this AgreementIndenture. The Any Net Proceeds from any Asset Sale that is not applied or invested (or committed pursuant to a written agreement to be applied) as provided in the preceding paragraph within 365 days after the receipt thereof and, in the case of any amount of committed to a reinvestment, which are not actually so applied within 180 days following such Net Cash Proceeds not so used as set forth above in this paragraph 365-day period shall constitute "“Excess Proceeds."
(c) ” When the aggregate cumulative amount of Excess Proceeds exceeds $10,000,000, the Company will50.0 million aggregate amount in any fiscal year, within 30 days thereafterthereof, the Company will be obligated to make an offer to purchase (an "Excess Proceeds Offer") from Offer to all Holders of the Notes on a pro rata basis, in accordance with the procedures set forth in this Agreement, to purchase the maximum principal amount (expressed as a multiple of $1,000) of Notes that may be purchased with the out of such Excess Proceeds, Proceeds at a purchase an offer price in cash in an amount equal to 100% of the principal amount thereof, plus together with accrued interest, if any, and unpaid interest to the date fixed for the closing of such offer in accordance with the procedures set forth in this Indenture. To the extent the Company or a Restricted Subsidiary is required under the terms of Indebtedness of the Company or such Restricted Subsidiary (other than Subordinated Indebtedness), the Company shall also make a pro rata offer to the holders of such Indebtedness (including the Notes) with such Excess Proceeds. The Company will deliver notice of such Excess Proceeds Offer electronically or by first-class mail, with a copy to the Trustee and each Holder of Notes at the address of such Holder appearing in the security register or otherwise in accordance with the applicable procedures of DTC, describing the transaction or transactions that constitute the Asset Sale and offering to repurchase the Notes for the specified purchase price on the date specified in the notice, which date will be no earlier than 30 days and no later than 60 days from the date such notice is consummateddelivered, pursuant to the procedures required by the Indenture and described in such notice. The Company may satisfy the foregoing obligations with respect to any Net Proceeds from an Asset Sale by making an Excess Proceeds Offer with respect to all Net Proceeds prior to the expiration of the relevant 450 days (or such longer period provided above) or with respect to any unapplied Excess Proceeds. To the extent that any portion of Net Proceeds payable in respect of the aggregate principal Notes is denominated in a currency other than U.S. dollars, the amount thereof payable in respect of the Notes shall not exceed the net amount of Notes tendered pursuant to such offer to purchase funds in U.S. dollars that is less than the Excess Proceeds, actually received by the Company may use upon converting such deficiency for general corporate purposesportion into U.S. dollars. If the aggregate principal amount of Notes validly tendered and not withdrawn other parity Indebtedness surrendered by holders thereof exceeds the amount of such Excess Proceeds, the Trustee shall select the Notes to be purchased will be selected on a pro rata basisbasis (except that any Notes represented by a note in global form will be selected by such method as DTC may require), based on the amounts tendered (with such adjustments as may be deemed appropriate by the Company so that only Notes in denominations of $2,000, or an integral multiple of $1,000 in excess thereof, will be purchased). To the extent that the principal amount of Notes tendered pursuant to an Excess Proceeds Offer is less than the amount of such Excess Proceeds, the Company may use any remaining Excess Proceeds for general corporate purposes in compliance with the provisions of this Indenture. Upon completion of such offer to purchasean Excess Proceeds Offer, the amount of Excess Proceeds shall be reset at zero. Additionally, the Company may, at its option, make an Excess Proceeds Offer using proceeds from any Asset Sale at any time after the consummation of such Asset Sale. Upon consummation or expiration of any Excess Proceeds Offer, any remaining Net Proceeds shall not be deemed Excess Proceeds and the Company may use such Net Proceeds for any purpose not prohibited by the Indenture. Notwithstanding any other provisions of this Section 4.10, (i) to the extent that any of or all the Net Proceeds of any Asset Sale by a Foreign Subsidiary (a “Foreign Disposition”) is prohibited or delayed by applicable local law from being repatriated to the United States, the portion of such Net Proceeds so affected will not be required to be applied in compliance with this covenant so long, but only so long, as the applicable local law, documents or agreements will not permit repatriation to the United States (the Company hereby agreeing to use reasonable efforts (as determined in the Company’s reasonable business judgment) to otherwise cause the applicable Foreign Subsidiary to within one year following the date on which the respective payment would otherwise have been required, promptly take all actions reasonably required by the applicable local law, applicable organizational impediments or other impediment to permit such repatriation), and if 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, applicable organizational impediment or other impediment, such repatriated Net Proceeds will be reset promptly (and in any event not later than five (5) Business Days after such repatriation could be made) applied (net of additional taxes payable or reserved against as a result thereof) (whether or not repatriation actually occurs) in compliance with this covenant and (ii) to zero.
the extent that the Company has determined in good faith that repatriation of any of or all the Net Proceeds of any Foreign Disposition would have an adverse tax consequence (iii) which for the avoidance of doubt, includes, but is not limited to, any prepayment whereby doing so the Company, any Restricted Subsidiary or any of their respective Affiliates and/or equity owners would incur a tax liability, including a taxable dividend, deemed dividend pursuant to Code Section 956 or a withholding tax), the Net Proceeds so affected will not be required to be applied in compliance with this covenant. The non-application of any prepayment amounts as a consequence of the foregoing provisions will not, for the avoidance of doubt, constitute a Default or an Event of Default. The Company will be required to comply with the requirements of Rule 14e-1 under the Exchange Act and any other securities laws and regulations thereunder to the extent such laws and regulations are applicable in connection with each repurchase of the Notes pursuant to required in the event of an Excess Proceeds Offer. To the extent that the provisions of any securities laws or regulations conflict with the Asset Sales provisions of this Agreement, the Company will comply with the applicable securities laws and regulations Offer and will not be deemed to have breached its obligations under Section 5(j) 3.09 hereof as a result thereof. The provisions of this Agreement by virtue Indenture relative to the Company’s obligation to make an offer to repurchase the Notes as a result of such conflictan Asset Sale may be waived or modified with the written consent of the holders of a majority in principal amount of the outstanding Notes.
Appears in 2 contracts
Samples: Indenture (Six Flags Entertainment Corp), Indenture (Six Flags Entertainment Corp)
Asset Sales. If the Company or any Restricted Subsidiary, in a single transaction or a series of related transactions:
(a) sells, leases (in a manner that has the effect of a disposition), conveys or otherwise disposes of any of its assets (including by way of a sale-and-leaseback transaction), other than: (i) The sales or other dispositions of inventory in the ordinary course of business; (ii) sales or other dispositions to the Company shall not, and shall not permit any or a Wholly Owned Restricted Subsidiary to, engage in any Asset Sale unless (x) of the consideration received Company by the Company or such any Restricted Subsidiary Subsidiary; (iii) sales or other dispositions of accounts receivable to DNCC for such Asset Sale is not less than cash in an amount at least equal to the fair market value of such accounts receivable; (iv) sales or other dispositions of rights to construct or launch satellites; and (v) sales or other dispositions permitted under Section 4.21 of this Indenture (PROVIDED THAT the sale, lease, conveyance or other disposition of all or substantially all of the assets sold of the Company shall be governed by the provisions of Article 5 of this Indenture);
(b) issues or sells Equity Interests of any Restricted Subsidiary (other than any issue or sale of Equity Interests of ETC or a Subsidiary which constitutes a Non-Core Asset permitted under Section 4.21 of this Indenture); in either case, which assets or Equity Interests: (i) have a fair market value in excess of $35 million (as determined in good faith by the Board of Directors of the Company evidenced by a resolution of the board Board of directors Directors of such entity the Company and set forth in an Officers' Certificate delivered to the Holders and Trustee); or (yii) are sold or otherwise disposed of for net proceeds in excess of $35 million (each of the foregoing, an "Asset Sale"), then:
(A) the Company or such Restricted Subsidiary, as the case may be, must receive consideration at the time of such Asset Sale at least equal to the fair market value (as determined in good faith by the Board of Directors of the Company evidenced by a resolution of the Board of Directors of the Company and set forth in an Officers' Certificate delivered to the Trustee not later than the fifth business day following January 1 and July 1 of each year and ten days following a request from the Trustee which certificate shall cover each Asset Sale made in the six months preceding January 1, July 1 or date of request, as the case may be) of the assets sold or otherwise disposed of; and
(B) at least 75% of the consideration therefor received by the Company or such Restricted Subsidiary, as the relevant case may be, must be in the form of (x) cash, Cash Equivalents or Marketable Securities, (y) any asset which is promptly (and in no event later than 90 days after the date of transfer to the Company or a Restricted Subsidiary in respect Subsidiary) converted into cash; PROVIDED that to the extent that such conversion is at a price that is less than the fair market value (as determined above) of such asset at the time of the Asset Sale consists in which such asset was acquired, the Company shall be deemed to have made a Restricted Payment in the amount by which such fair market value exceeds the cash received upon conversion; or (z) properties and capital assets (excluding Equity Interests) to be used by the Company or any of its Restricted Subsidiaries in a business permitted under Section 4.17 of this Indenture; PROVIDED, HOWEVER, that up to $20 million of assets in addition to assets specified in clauses (x), (y) or (z) above at least 75% any one time may be considered to be cash or Cash Equivalents (for purposes of this clause (yB), PROVIDED that the provisions of the next paragraph are complied with as such non-cash and Cash Equivalents includes (A) assets are converted to cash. The amount of any liabilities (as reflected in the Company's consolidated balance sheet) of the Company or any Restricted Subsidiary (other than contingent liabilities and liabilities that are by their terms subordinated to the Notes or any Guarantee) that are assumed by any or on behalf of the transferee of any such assets or other property in such connection with an Asset Sale, Sale (and where from which the Company or the relevant such Restricted Subsidiary is released are unconditionally released) shall be deemed to be cash for the purpose of this clause (B). The Net Proceeds from such Asset Sale shall be used only: (i) to acquire assets used in, or stock or other ownership interests in a Person that upon the consummation of such Asset Sale becomes a Restricted Subsidiary and will be engaged primarily in, the business of the Company as described under Section 4.17 of this Indenture, to repurchase Notes or if the Company sells any of its satellites after launch such that the Company or its Restricted Subsidiaries own less than three in-orbit satellites, only to purchase a replacement satellite; or (ii) as set forth in the next sentence. Any Net Proceeds from any further liability Asset Sale that are not applied or invested as provided in connection therewith the preceding sentence within 365 days after such Asset Sale shall constitute "Excess Proceeds" and shall be applied to an offer to purchase Notes and other senior Indebtedness of the Company if and when required under Section 3.09 of this Indenture. Clause (B) of the second preceding paragraph shall not apply to all or such portion of the consideration (i) as is designated by the Company in an Asset Sale as being subject to this paragraph; and (ii) with respect to such liabilities, (B) any securities, notes or other similar obligations which the aggregate fair market value at the time of receipt of all consideration received by the Company or any such Restricted Subsidiary from in all such transferee that are converted within 180 days Asset Sales so designated does not exceed the amount contributed to the Company under Section 4.19 of this Indenture, plus, to the extent any such consideration did not satisfy clauses (B)(x) or (B)(z) above, upon the exchange or repayment of such consideration for or with assets which satisfy such clauses, an amount equal to the fair market value of such consideration (evidenced by a resolution of the consummation Board of Directors of the related Company and set forth in an Officers' Certificate delivered to the Trustee as set forth in clause (A) above). In addition, clause (B) above shall not apply to any Asset Sale by (x) where assets not related to the direct broadcast satellite business are contributed to a joint venture between the Company or one of its Restricted Subsidiaries and a third party that is not an Affiliate of EchoStar or any of its Subsidiaries; PROVIDED THAT following the sale, lease, conveyance or other disposition the Company or one of its Wholly Owned Restricted Subsidiaries owns at least 50% of the voting and equity interest in such Restricted Subsidiary into cash and Cash Equivalents joint venture, (y) to the extent of the net cash proceeds or the Cash Equivalents (net of related costs) received upon such conversion) and (C) any Designated Noncash Consideration consideration therefor received by the Company or any such a Restricted Subsidiary in the Asset Sale having an aggregate fair market value, as determined by the Board would constitute Indebtedness or Equity Interests of the Company, taken together with all other Designated Noncash Consideration received pursuant to this clause a Person that is at that time outstandingnot an Affiliate of EchoStar, not to exceed the greater of:
(1) $10,000,000; and
(2) 15% of Consolidated Tangible Assets at the time of the receipt of such Designated Noncash Consideration (with the fair market value of each item of such Designated Noncash Consideration being measured at the time received and without giving effect to subsequent changes in value).
(ii) If the Company or any Restricted Subsidiary engages in an Asset Sale, the Company may, at its option, within 12 months after such Asset Sale, (1) apply all or a portion one of the Net Cash Proceeds to the permanent reduction of amounts outstanding under the Credit Agreement (and to correspondingly reduce the commitments, if any, with respect thereto) or to the permanent repayment of other Senior Indebtedness of the Company or a Restricted Subsidiary, provided their respective Subsidiaries; PROVIDED that the repayment of any Indebtedness incurred under the Credit Agreement in connection with the acquisition of any Facility with the proceeds of any subsequent Sale and Leaseback Transaction relating to such Facility shall not be required to result in the permanent reduction of the amounts outstanding Indebtedness or Equity Interests is permitted under the Credit Agreement or correspondingly permanently reduce the commitments thereunder, or (2) invest (or enter into a legally binding agreement to invest) all or a portion of such Net Cash Proceeds in properties and assets to replace the properties and assets that were the subject of the Asset Sale or in properties and assets that will be used in the businesses of the Company or its Restricted Subsidiaries, as the case may be, existing on the Closing Date or in businesses the same, similar or reasonably related thereto. If any such legally binding agreement to invest such Net Cash Proceeds is terminated, the Company may, within 90 days of such termination or within 12 months of such Asset Sale, whichever is later, invest such Net Cash Proceeds as provided in clause (1) or (2) (without regard to the parenthetical contained in such clause (2)) above. Pending the final application of any such Net Cash Proceeds, the Company may temporarily reduce revolving credit borrowings or otherwise invest such Net Cash Proceeds in a manner that is not prohibited by this Agreement. The amount of such Net Cash Proceeds not so used as set forth above in this paragraph shall constitute "Excess Proceeds."
(c) When the aggregate amount of Excess Proceeds exceeds $10,000,000, the Company will, within 30 days thereafter, make an offer to purchase (an "Excess Proceeds Offer") from all Holders of Notes on a pro rata basis, in accordance with the procedures set forth in this Agreement, the maximum principal amount (expressed as a multiple of $1,000) of Notes that may be purchased with the Excess Proceeds, at a purchase price in cash equal to 100% of the principal amount thereof, plus accrued interest, if any, to the date such offer to purchase is consummated. To the extent that the aggregate principal amount of Notes tendered pursuant to such offer to purchase is less than the Excess Proceeds, the Company may use such deficiency for general corporate purposes. If the aggregate principal amount of Notes validly tendered and not withdrawn by holders thereof exceeds the Excess Proceeds, the Notes to be purchased will be selected on a pro rata basis. Upon completion of such offer to purchase, the amount of Excess Proceeds will be reset to zero.
(iii) 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 Excess Proceeds Offer. To the extent that the provisions of any securities laws or regulations conflict with the Asset Sales provisions Section 4.07 of this AgreementIndenture and (z) where assets sold are satellites, uplink centers or call centers, PROVIDED that, in the case of clause (z) the Company will comply with the applicable securities laws and regulations its Restricted Subsidiaries continue to own at least three satellites, one uplink center and will not be deemed to have breached its obligations under Section 5(j) of this Agreement by virtue of such conflictone call center.
Appears in 2 contracts
Samples: Indenture (Echostar DBS Corp), Indenture (Echostar DBS Corp)
Asset Sales. (ia) The Company Parent and the Issuers shall not, and shall not permit any of the other Restricted Subsidiary Subsidiaries to, engage in any cause or make an Asset Sale Sale, unless (x) the Parent or any Restricted Subsidiary, as the case may be, receives consideration received by at the Company or such Restricted Subsidiary for time of such Asset Sale is not less than at least equal to the fair market value Fair Market Value (as determined in good faith by the Issuer) of the assets sold evidenced by a resolution of the board of directors of such entity set forth in an Officers' Certificate delivered to the Holders or otherwise disposed of, and (y) the consideration received by the Company or the relevant Restricted Subsidiary in respect of such Asset Sale consists of at least 75% cash of the consideration therefor received by the Parent or such Restricted Subsidiary, as the case may be, is in the form of Cash Equivalents; provided that the amount of each of the following shall be deemed to be Cash Equivalents (for purposes of this clause provision:
(y), cash and Cash Equivalents includes (Ai) any liabilities (as reflected shown on the Parent or a Restricted Subsidiary’s most recent balance sheet or in the Company's consolidated balance sheetnotes thereto) of the Company Parent or any a Restricted Subsidiary (other than contingent liabilities and liabilities that are by their terms subordinated to the Notes or any Guarantee) that are assumed by any the transferee of any such assets or other property in such Asset Sale, and where the Company that are otherwise canceled or the relevant Restricted Subsidiary is released from any further liability terminated in connection therewith with respect to the transaction with such liabilitiestransferee, excluding (A) any Existing Notes and (B) any securitiesother Indebtedness included in the calculation of Consolidated Total Indebtedness that is both (1) unsecured or Junior Priority Indebtedness and (2) a direct obligation of, or guaranteed by, all or substantially all of the Issuers and the Guarantors;
(ii) any notes or other similar obligations or other securities or assets received by the Company Parent or any such Restricted Subsidiary from such transferee that are converted within 180 days of the consummation of the related Asset Sale by the Company Parent or such Restricted Subsidiary into cash and or Cash Equivalents within 180 days of the receipt thereof (to the extent of the net cash proceeds or received);
(iii) Indebtedness of any Restricted Subsidiary that is no longer a Restricted Subsidiary as a result of such Asset Sale, to the extent that the Parent and each Restricted Subsidiary are released from any guarantee of payment of such Indebtedness in connection with the Asset Sale and the assumption of such guarantee, if any, would be deemed to be Cash Equivalents under clause (net i) above;
(iv) consideration consisting of related costsIndebtedness of the Parent or any Restricted Subsidiary (other than Subordinated Indebtedness) received upon such conversion) and after the Issue Date from Persons who are not the Parent or any Restricted Subsidiary; and
(Cv) any Designated Noncash Non-cash Consideration received by the Company Parent or any such Restricted Subsidiary in the such Asset Sale having an aggregate fair market value, Fair Market Value (as determined in good faith by the Board of the CompanyIssuer), taken together with all other Designated Noncash Non-cash Consideration received pursuant to this clause Section 4.06(a)(v) that is at that time outstanding, not to exceed the greater of:
(1) of $10,000,000; and
(2) 15600.0 million and 4.0% of Consolidated Tangible Total Assets at the time of the receipt of such Designated Noncash Non-cash Consideration (with the fair market value Fair Market Value of each item of such Designated Noncash Non-cash Consideration being measured at the time received and without giving effect to subsequent changes in value).
(iib) If Within 365 days after the Company Parent’s or any Restricted Subsidiary engages in an Subsidiary’s receipt of the Net Proceeds of any Asset Sale, the Company mayParent or such Restricted Subsidiary may apply the Net Proceeds from such Asset Sale, at its option:
(i) to repay (A) Indebtedness constituting Bank Indebtedness and other Pari Passu Indebtedness, within 12 months after such Asset Salein each case that is secured by a Lien permitted under this Indenture (and, if the Indebtedness repaid is revolving credit Indebtedness, to correspondingly reduce commitments with respect thereto), (1B) apply all Indebtedness of a Restricted Subsidiary that is not a Guarantor, (C) First Priority Notes Obligations or a portion (D) other Pari Passu Indebtedness (provided that if the Parent, an Issuer or any Guarantor shall so reduce Obligations under such Pari Passu Indebtedness under this clause (D), the Issuer will equally and ratably reduce First Priority Notes Obligations in accordance with Article III of this Indenture, through open-market purchases (provided that such purchases are at or above 100% of the Net Cash Proceeds 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, the pro rata principal amount of Notes), in each case other than Indebtedness owed to the permanent reduction Parent or an Affiliate of amounts outstanding the Parent; provided that the Net Proceeds from an Asset Sale of First Lien Collateral or assets of the Cadence IP Subsidiary may not be applied to repay any Indebtedness other than the Notes or other Pari Passu Indebtedness secured by a Lien (other than a Lien that is junior in priority to the Liens securing the Notes or any Guarantee) on such First Lien Collateral, except as otherwise permitted under this covenant (provided that if the Parent, an Issuer or any Guarantor shall so repay Obligations under such Pari Passu Indebtedness (other than Pari Passu Indebtedness secured by a Lien that is senior in priority to the Liens securing the Notes or any Guarantee), the Issuer will, to the extent permitted under the Credit Agreement as in effect on February 21, 2018, equally and ratably reduce First Priority Notes Obligations in accordance with Article III of this Indenture, through open-market purchases (and to correspondingly reduce provided that such purchases are at or above 100% of the commitments, if any, with respect theretoprincipal amount thereof) or by making an offer (in accordance with the procedures set forth below for an Asset Sale Offer) to the permanent repayment of other Senior Indebtedness all holders to purchase at a purchase price equal to 100% of the Company principal amount thereof (or, in the event that the Notes were issued with significant original issue discount, 100% of the accreted value thereof), plus accrued and unpaid interest, the pro rata principal amount of Notes); provided, further, that if such Asset Sale involves the disposition of First Lien Collateral, the Parent or a such Restricted Subsidiary, Subsidiary has complied with the provisions of this Indenture and the First Lien Collateral Documents; or
(ii) to make an investment in any one or more businesses (provided that if such investment is in the repayment form of any Indebtedness incurred under the Credit Agreement in connection with the acquisition of any Facility with the proceeds Capital Stock of any subsequent Sale and Leaseback Transaction relating to a Person, such Facility shall not be required to result acquisition results in the permanent reduction such Person becoming a Restricted Subsidiary of the amounts outstanding under the Credit Agreement or correspondingly permanently reduce the commitments thereunderParent), assets, or property or capital expenditures, in each case (2A) invest used or useful in a Similar Business or (or enter into a legally binding agreement to investB) all or a portion of such Net Cash Proceeds in properties and assets to that replace the properties and assets that were 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 or in properties and assets giving rise to such Net Proceeds was contractually committed. In the case of Section 4.06(b)(ii), a binding commitment shall be treated as a permitted application of the Net Proceeds from the date of such commitment until the 12-month anniversary of the date of the receipt of such Net Proceeds; provided that will be used in the businesses event such binding commitment is later canceled or terminated for any reason before such Net Proceeds are so applied, then such Net Proceeds shall constitute Excess Proceeds unless the Parent or such Restricted Subsidiary enters into another binding commitment (a “Second Commitment”) within six months of such cancellation or termination of the Company prior binding commitment; provided, further, that the Parent or its such Restricted Subsidiaries, as Subsidiary may only enter into a Second Commitment under the case may be, existing on foregoing provision one time with respect to each Asset Sale and to the Closing Date extent such Second Commitment is later canceled or in businesses the same, similar or reasonably related thereto. If terminated for any such legally binding agreement to invest reason before such Net Cash Proceeds is terminated, the Company may, are applied or are not applied within 90 180 days of such termination or within 12 months of such Asset SaleSecond Commitment, whichever is later, invest then such Net Cash Proceeds as provided in clause (1) or (2) (without regard to the parenthetical contained in such clause (2)) aboveshall constitute Excess Proceeds. Pending the final application of any such Net Cash Proceeds, the Company Parent or such Restricted Subsidiary may temporarily reduce Indebtedness under a revolving credit borrowings facility, if any, or otherwise invest such Net Cash Proceeds in a any manner that is not prohibited by this AgreementIndenture. The amount Any Net Proceeds from any Asset Sale that are not applied as provided and within the time period set forth in the first paragraph of this Section 4.06(b) (it being understood that any portion of such Net Cash 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 so applied whether or not so used as set forth above in this paragraph shall such offer is accepted) will be deemed to constitute "“Excess Proceeds."
(c) ” When the aggregate amount of Excess Proceeds exceeds $10,000,000125.0 million, the Company will, within 30 days thereafter, Issuer shall make an offer to purchase all holders of Notes (and, at the option of the Issuer, to holders of any other Pari Passu Indebtedness secured by a Lien (other than a Lien that is junior in priority to the Liens securing the Notes or a Guarantee) on the First Lien Collateral (the “Eligible Pari Passu Indebtedness”)) (an "“Asset Sale Offer”) to purchase the maximum principal amount of Notes (and any such Eligible 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 Offer") from all Holders at an offer price in cash in an amount equal to 100% of the principal amount thereof (or, in the event the Notes on a pro rata basisor any such Eligible Pari Passu Indebtedness were issued with significant original issue discount, 100% of the accreted value thereof), plus accrued and unpaid interest (or, in respect of such Eligible Pari Passu Indebtedness, such lesser price, if any, as may be provided for by the terms of such Eligible Pari Passu Indebtedness), to, but excluding, the date fixed for the closing of such offer, in accordance with the procedures set forth in this AgreementIndenture. 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 $125.0 million by mailing, or delivering electronically if the Notes are held by the Depository, the maximum principal amount (expressed as a multiple of $1,000) of Notes that may be purchased with the Excess Proceeds, at a purchase price in cash equal to 100% of the principal amount thereof, plus accrued interest, if any, notice required pursuant to the date such offer terms of this Indenture, with a copy to purchase is consummatedthe First Lien Trustee. To the extent that the aggregate principal amount of Notes (and such Eligible Pari Passu Indebtedness) tendered pursuant to such offer to purchase an Asset Sale Offer is less than the Excess Proceeds, the Company Issuer may use such deficiency any remaining Excess Proceeds for general corporate purposesany purpose that is not prohibited by this Indenture. If the aggregate principal amount of Notes validly tendered (and not withdrawn such Eligible Pari Passu Indebtedness) surrendered by holders thereof exceeds the amount of Excess Proceeds, the First Lien Trustee, upon receipt of written notice from the Issuer of the aggregate principal amount to be selected, shall select the Notes (but not such Eligible Pari Passu Indebtedness) to be purchased will be selected on a pro rata basisin the manner described in Section 4.06(e). Upon completion of any such offer to purchaseAsset Sale Offer, the amount of Excess Proceeds will shall be reset to at zero.
(iiic) The Company 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 and or regulations are applicable in connection with each the repurchase of the Notes pursuant to an Excess Proceeds Asset Sale Offer. To the extent that the provisions of any securities laws or regulations conflict with the Asset Sales provisions of this AgreementIndenture, the Company Issuer will comply with the applicable securities laws and regulations and will shall not be deemed to have breached its obligations under Section 5(j) of described in this Agreement Indenture by virtue thereof.
(d) [reserved].
(e) If more Notes (and such Eligible Pari Passu Indebtedness) are tendered pursuant to an Asset Sale Offer than the Issuers are required to purchase, selection of such conflictNotes (but not such Eligible Pari Passu Indebtedness) for purchase shall be made by the First Lien Trustee on a pro rata basis to the extent practicable, by lot or by such other method as the First Lien Trustee shall deem fair and appropriate (and in such manner as complies with the requirements of the Depository, if applicable); provided that no Notes of $2,000 or less shall be purchased in part. Selection of such Eligible Pari Passu Indebtedness shall be made pursuant to the terms of such Eligible 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 the Notes are held by the Depository, at least 15 days but not more than 60 days before the purchase date to each holder of Notes at such holder’s registered address. If any Note is to be purchased in part only, any notice of purchase that relates to such Note shall state the portion of the principal amount thereof that has been or is to be purchased.
Appears in 2 contracts
Samples: Exchange Agreement (Mallinckrodt PLC), Indenture (Mallinckrodt PLC)
Asset Sales. (ia) The Company shall not, and shall not permit any of the Restricted Subsidiary Subsidiaries to, engage in any cause or make an Asset Sale Sale, unless (x) the Company or 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 in good faith by the Company) of the assets sold or otherwise disposed of, and (y) at least 75% of the consideration therefor received by the Company or such Restricted Subsidiary for such Asset Sale Subsidiary, as the case may be, is not less than in the fair market value form of Cash Equivalents; provided that the assets sold evidenced by a resolution of the board of directors of such entity set forth in an Officers' Certificate delivered to the Holders and amount of:
(y) the consideration received by the Company or the relevant Restricted Subsidiary in respect of such Asset Sale consists of at least 75% cash or Cash Equivalents (for purposes of this clause (y), cash and Cash Equivalents includes (Ai) any liabilities (as reflected shown on the Company’s or a Restricted Subsidiary’s most recent balance sheet or in the Company's consolidated balance sheetnotes thereto) of the Company or any a Restricted Subsidiary (other than contingent liabilities and liabilities that are by their terms subordinated to the Notes or any Guarantee) that are assumed by any the transferee of any such assets or other property in such Asset Sale, and where the Company that are otherwise cancelled or the relevant Restricted Subsidiary is released from any further liability terminated in connection therewith with respect to the transaction with such liabilities, transferee,
(Bii) any securities, notes or other similar obligations or other securities or assets received by the Company or any such Restricted Subsidiary from such transferee that are converted within 180 days of the consummation of the related Asset Sale by the Company or such Restricted Subsidiary into cash and Cash Equivalents within 180 days of the receipt thereof (to the extent of the net cash proceeds or received),
(iii) Indebtedness of any Restricted Subsidiary that is no longer a Restricted Subsidiary as a result of such Asset Sale, to the Cash Equivalents extent that the Company and each other Restricted Subsidiary are released from any guarantee of payment of such Indebtedness in connection with the Asset Sale,
(net iv) consideration consisting of related costsIndebtedness of the Company (other than Subordinated Indebtedness) received upon such conversion) and after the Issue Date from Persons who are not the Company or any Restricted Subsidiary, and
(Cv) any Designated Noncash Non-cash Consideration received by the Company or any such Restricted Subsidiary in the such Asset Sale having an aggregate fair market value, Fair Market Value (as determined in good faith by the Board of the Company), taken together with all other Designated Noncash Non-cash Consideration received pursuant to this clause Section 4.06(a)(v) that is at that time outstanding, not to exceed the greater of:
(1) of $10,000,000; and
(2) 15400 million and 25% of Consolidated Tangible Assets EBITDA at the time of the receipt of such Designated Noncash Non-cash Consideration (with the fair market value Fair Market Value of each item of such Designated Noncash Non-cash Consideration being measured at the time received and without giving effect to subsequent changes in value), shall be deemed to be Cash Equivalents for the purposes of this Section 4.06(a).
(iib) If Within 365 days after the Company Company’s or any Restricted Subsidiary engages in an Subsidiary’s receipt of the Net Proceeds of any Asset Sale, the Company mayor such Restricted Subsidiary may apply 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, within 12 months after such Asset Saleif the Indebtedness repaid is revolving credit Indebtedness, (1) apply all or a portion of the Net Cash Proceeds to the permanent reduction of amounts outstanding under the Credit Agreement (and to correspondingly reduce the commitments, if any, commitments with respect thereto), (B) or to the permanent repayment of other Senior Indebtedness of a Restricted Subsidiary that is not a Guarantor, (C) Obligations under the Notes or (D) other Pari Passu Indebtedness (provided that if the Company or a Restricted Subsidiaryany Guarantor shall so reduce Obligations under unsecured Pari Passu Indebtedness under this clause (D), the Company will equally and ratably reduce Notes Obligations pursuant to Section 3.01, through open-market purchases (provided that such purchases are at or above 100% of the repayment principal amount thereof or, in the event that the Notes were issued with significant original issue discount, 100% of the accreted value thereof) or by making an offer (in accordance with the procedures set forth below for an Asset Sale Offer) to all holders of Notes to purchase such holder’s Notes 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), in each case other than Indebtedness owed to the Company or an Affiliate of the Company; or
(ii) to make an investment in any Indebtedness incurred under one or more businesses (provided that if such investment is in the Credit Agreement in connection with form of the acquisition of any Facility with the proceeds Capital Stock of any subsequent Sale and Leaseback Transaction relating to a Person, such Facility shall not be required to result acquisition results in the permanent reduction such Person becoming a Restricted Subsidiary of the amounts outstanding under the Credit Agreement or correspondingly permanently reduce the commitments thereunderCompany), assets, or property or capital expenditures, in each case (2A) invest used or useful in a Similar Business or (or enter into a legally binding agreement to investB) all or a portion of such Net Cash Proceeds in properties and assets to that replace the properties and assets that were 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 or in properties and assets 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 will be used in the businesses of event such binding commitment is later canceled or terminated for any reason before such Net Proceeds are so applied, then such Net Proceeds shall constitute Excess Proceeds unless the Company or its such Restricted SubsidiariesSubsidiary enters into another binding commitment (a “Second Commitment”) within six months of such cancellation or termination of the prior binding commitment; provided, as further, that the case Company or such Restricted Subsidiary may be, existing on only enter into a Second Commitment under the Closing Date foregoing provision one time with respect to each Asset Sale and to the extent such Second Commitment is later cancelled or in businesses the same, similar or reasonably related thereto. If terminated for any such legally binding agreement to invest reason before such Net Cash Proceeds is terminated, the Company may, are applied or are not applied within 90 180 days of such termination or within 12 months of such Asset SaleSecond Commitment, whichever is later, invest then such Net Cash Proceeds as provided shall constitute Excess Proceeds (in clause (1) or (2) (without regard each case subject to the parenthetical contained proviso to the first sentence in such clause (2the immediately succeeding paragraph)) above. Pending the final application of any such Net Cash Proceeds, the Company or such Restricted Subsidiary may temporarily reduce Indebtedness under a revolving credit borrowings facility, if any, or otherwise invest such Net Cash Proceeds in a any manner that is not prohibited by this AgreementIndenture. The amount Any Net Proceeds from any Asset Sale that are not applied as provided and within the time period set forth in the first sentence of this Section 4.06(b) (it being understood that any portion of such Net Cash 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 so used as set forth above in this paragraph such offer is accepted) will be deemed to constitute “Excess Proceeds”; provided, that no Net Proceeds which would otherwise constitute “Excess Proceeds” shall constitute "Excess Proceeds in any fiscal year until the aggregate amount of all such Net Proceeds in such fiscal year shall exceed $200 million (and thereafter only Net Proceeds in excess of such amount shall constitute Excess Proceeds."
(c) ). When the aggregate amount of Excess Proceeds exceeds $10,000,000100 million, the Company will, within 30 days thereafter, shall make an offer to purchase all holders of Notes (and, at the option of the Company, 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 be purchased out of the Excess Proceeds Offer") from all Holders at an offer price in cash in an amount equal to 100% of the principal amount thereof (or, in the event the Notes on a pro rata basisor other Pari Passu Indebtedness were issued with significant original issue discount, 100% of the accreted value thereof), plus accrued and unpaid interest (or, in respect of such other Pari Passu Indebtedness, such lesser price, if any, as may be provided for by the terms of such other Pari Passu Indebtedness), to, but excluding, the date fixed for the closing of such offer, in accordance with the procedures set forth in this Agreementthe Indenture. The Company will commence an Asset Sale Offer with respect to Excess Proceeds within ten (10) Business Days after the date that Excess Proceeds exceeds $100 million by mailing, or delivering electronically if held by the Depository, the maximum principal amount (expressed as a multiple of $1,000) of Notes that may be purchased with notice required pursuant to the Excess Proceeds, at a purchase price in cash equal to 100% terms of the principal amount thereofIndenture, plus accrued interest, if any, with a copy to the date such offer to purchase is consummatedTrustee. To the extent that the aggregate principal amount of Notes (and such other Pari Passu Indebtedness) tendered pursuant to such offer to purchase an Asset Sale Offer is less than the Excess Proceeds, the Company may use such deficiency for general corporate purposes. If the aggregate principal amount of Notes validly tendered and not withdrawn by holders thereof exceeds that the Excess ProceedsCompany has offered to purchase pursuant to an Asset Sale Offer, the Notes to be purchased will be selected on a pro rata basisCompany may use any remaining Excess Proceeds for any purpose that is not prohibited by the Indenture. Upon completion of any such offer to purchaseAsset Sale Offer, the amount of Excess Proceeds will shall be reset to at zero.
(iiic) The Company will comply comply, to the extent applicable, with the requirements of Rule 14e-1 under Section 14(e) of the Exchange Act and any other securities laws and or regulations thereunder to the extent such laws and regulations are applicable in connection with each the repurchase of Notes pursuant to an Excess Proceeds Asset Sale Offer. To the extent that the provisions of any securities laws or regulations conflict with the Asset Sales provisions of this AgreementIndenture, the Company will comply with the applicable securities laws and regulations and will shall not be deemed to have breached its obligations under described in this Indenture by virtue thereof.
(d) Not later than the date upon which written notice of an Asset Sale Offer is delivered to the Trustee as provided above, the Company shall deliver to the Trustee an Officers’ Certificate as to (i) the amount of the Excess Proceeds, (ii) the allocation of the Net Proceeds from the Asset Sales pursuant to which such Asset Sale Offer is being made and (iii) the compliance of such allocation with the provisions of Section 5(j4.06(b). On such date, the Company shall also irrevocably deposit with the Trustee or the Paying Agent (or, if the Company or a Subsidiary is acting as the Paying Agent, segregate and hold in trust) an amount equal to the Excess Proceeds to be invested in Cash Equivalents, as directed in writing by the Company and to be held for payment in accordance with the provisions of this Agreement Section 4.06. The Trustee shall have the right to open an account for purposes of receiving such Excess Proceeds. Upon the expiration of the period for which the Asset Sale Offer remains open (the “Offer Period”), the Company shall deliver to the Trustee for cancellation the Notes or portions thereof that have been properly tendered to and are to be accepted by virtue the Company. The Trustee (or the Paying Agent, if not the Trustee) shall, on the date of purchase, mail or deliver payment to each tendering holder in the amount of the purchase price. In the event that the Excess Proceeds delivered by the Company to the Trustee are greater than the purchase price of the Notes tendered, the Trustee shall deliver the excess to the Company immediately after the expiration of the Offer Period for application in accordance with this Section 4.06.
(e) Holders electing to have a Note purchased shall be required to surrender such Note, with an appropriate form duly completed, to the Company at the address specified in the notice at least three Business Days prior to the purchase date. Holders shall be entitled to withdraw their election if the Trustee or the Company receives not later than one Business Day prior to the purchase date, a telegram, telex, facsimile transmission or letter setting forth the name of the holder, the principal amount of the Note which was delivered by the holder for purchase and a statement that such holder is withdrawing his election to have such Note purchased. If more Notes (and such other Pari Passu Indebtedness) are tendered pursuant to an Asset Sale Offer than the Company is required to purchase, such Notes shall be selected for purchase in such manner as complies with the requirements of the Depository; provided that no Notes of $2,000 or less shall be purchased in part and all purchases shall be in integral multiples of $1,000. Selection of such conflictother Pari Passu Indebtedness shall be made pursuant to the terms of such other Pari Passu Indebtedness.
(f) Notices of an Asset Sale Offer shall be mailed by the Company by first class mail, postage prepaid, or delivered electronically if held by the Depository, at least 30 but not more than 60 days before the purchase date to each holder of Notes at such holder’s registered address. If any Note is to be purchased in part only, any notice of purchase that relates to such Note shall state the portion of the principal amount thereof that has been or is to be purchased.
Appears in 2 contracts
Samples: Indenture (XPO Logistics, Inc.), Indenture (XPO Logistics, Inc.)
Asset Sales. If DBS Corp or any of its Restricted Subsidiaries, in a single transaction or a series of related transactions:
(a) sells, leases, conveys or otherwise disposes of any assets (including by way of a sale-and-leaseback transaction), other than (i) The Company shall notsales of inventory in the ordinary course of business, and shall not permit (ii) sales to DBS Corp or a Wholly Owned Restricted Subsidiary of EchoStar DBS Corp. by any Restricted Subsidiary toof DBS Corp, engage (iii) sales of accounts receivable by EAC or DNCC for cash in any Asset Sale unless (x) the consideration received by the Company or such Restricted Subsidiary for such Asset Sale is not less than an amount at least equal to the fair market value of such accounts receivable or (iv) sales of rights to satellite launches (PROVIDED that the sale, lease, conveyance or other disposition of all or substantially all of the assets sold of the Company shall be governed by the provisions of the Company Indenture described below under the caption "Merger, Consolidation, or Sale of Assets").
(b) issue or sell equity securities of any Restricted Subsidiary of DBS Corp, in either case, which assets or securities (i) have a fair market value (as determined in good faith by the Board of Directors of the Company evidenced by a resolution of the board Board of directors Directors of such entity the Company and set forth in an Officers' Certificate delivered to the Holders and (y) the consideration received by the Company or the relevant Restricted Subsidiary in respect of such Asset Sale consists of at least 75% cash or Cash Equivalents (for purposes of this clause (y)Certificate; PROVIDED HOWEVER, cash and Cash Equivalents includes (A) any liabilities (as reflected in the Company's consolidated balance sheet) of the Company or any Restricted Subsidiary (other than contingent liabilities and liabilities that are by their terms subordinated to the Notes or any Guarantee) that are assumed by any transferee of any such assets or other property in such Asset Sale, and where the Company or the relevant Restricted Subsidiary is released from any further liability in connection therewith with respect to such liabilities, (B) any securities, notes or other similar obligations received by the Company or any such Restricted Subsidiary from such transferee that are converted within 180 days of the consummation of the related Asset Sale by the Company or such Restricted Subsidiary into cash and Cash Equivalents (to the extent of the net cash proceeds or the Cash Equivalents (net of related costs) received upon such conversion) and (C) any Designated Noncash Consideration received by the Company or any such Restricted Subsidiary in the Asset Sale having an aggregate fair market value, as determined by the Board of the Company, taken together with all other Designated Noncash Consideration received pursuant to this clause that is at that time outstanding, not to exceed the greater of:
(1) $10,000,000; and
(2) 15% of Consolidated Tangible Assets at the time of the receipt of such Designated Noncash Consideration (with if the fair market value of each item such assets exceeds $20 million, the fair market value shall be determined by an investment banking firm of such Designated Noncash Consideration being measured at national standing selected by the time received and without giving effect to subsequent changes Company) in value).
excess of $10 million or (ii) If are sold or otherwise disposed of for net proceeds in excess of $10 million (each of the Company or any Restricted Subsidiary engages in foregoing, an "Asset Sale, the Company may, at its option, within 12 months after ") then:
(A) DBS Corp or such Asset Sale, (1) apply all or a portion of the Net Cash Proceeds to the permanent reduction of amounts outstanding under the Credit Agreement (and to correspondingly reduce the commitments, if any, with respect thereto) or to the permanent repayment of other Senior Indebtedness of the Company or a Restricted Subsidiary, provided that the repayment of any Indebtedness incurred under the Credit Agreement in connection with the acquisition of any Facility with the proceeds of any subsequent Sale and Leaseback Transaction relating to such Facility shall not be required to result in the permanent reduction of the amounts outstanding under the Credit Agreement or correspondingly permanently reduce the commitments thereunder, or (2) invest (or enter into a legally binding agreement to invest) all or a portion of such Net Cash Proceeds in properties and assets to replace the properties and assets that were the subject of the Asset Sale or in properties and assets that will be used in the businesses of the Company or its Restricted Subsidiaries, as the case may be, existing on must receive consideration at the Closing Date or time of such Asset Sale at least equal to the fair market value (as determined in businesses good faith by the sameBoard of Directors of the Company evidenced by a resolution of the Board of Directors of Company and set forth in an Officers' Certificate; PROVIDED, similar or reasonably related thereto. If any HOWEVER, that if the fair market value of such legally binding agreement to invest such Net Cash Proceeds is terminatedassets exceeds $20 million, the fair market value shall be determined by an investment banking firm of national standing selected by the Company mayof the assets sold or otherwise disposed of; and
(B) at least 80% of the consideration therefor received by DBS Corp or such Restricted Subsidiary, as the case may be, is in the form of cash or Cash Equivalents; PROVIDED, HOWEVER, that DBS Corp may consider up to $15 million of non-cash assets at any one time to be cash for purposes of this clause (B), PROVIDED that the provisions of the next paragraph are complied with as such non-cash assets are converted to cash.
(C) Any Net Proceeds from any Asset Sale that are not applied or invested in the business of the Company within 90 180 days of such termination or within 12 months of after such Asset Sale, whichever is later, invest such Net Cash Proceeds as provided in clause (1) or (2) (without regard not applied to an offer to repurchase 1994 Notes required by the parenthetical contained in such clause (2)) above. Pending the final application of any such Net Cash Proceeds1994 Notes Indenture, the Company may temporarily reduce revolving credit borrowings or otherwise invest such Net Cash Proceeds in a manner that is not prohibited 1996 Notes required by this Agreement. The amount of such Net Cash Proceeds not so used as set forth above in this paragraph the 1996 Notes Indenture, and the 1997 Notes required by the 1997 Notes Indenture shall constitute "Excess Proceeds."
(c) When the aggregate amount of Excess Proceeds exceeds $10,000,000, the Company will, within 30 days thereafter, make be applied to an offer to purchase (an "Excess Proceeds Offer") from all Holders of Notes on a pro rata basis, in accordance with the procedures set forth in this Agreement, the maximum principal amount (expressed as a multiple of $1,000) of Notes that may be purchased with the Excess Proceeds, senior Preferred Stock at a purchase price in cash equal to 100of 101% of the principal amount liquidation preference thereof, plus accrued interest, if any, accumulated and unpaid dividends to the date of purchase: provided that any such obligation to make such an offer to purchase is consummated. To shall not become effective until such time as the extent that 1997 Notes and the aggregate principal amount of 1996 Notes tendered pursuant to such offer to purchase is less than the Excess Proceeds, the Company may use such deficiency for general corporate purposes. If the aggregate principal amount of Notes validly tendered and not withdrawn by holders thereof exceeds the Excess Proceeds, the Notes to be purchased will be selected on a pro rata basis. Upon completion of such offer to purchase, the amount of Excess Proceeds will be reset to zerohave been paid in full or have otherwise matured.
(iiiD) The Company will comply with Notwithstanding the requirements of Rule 14e-1 under the Exchange Act and foregoing, any other securities laws and regulations thereunder transaction which would not constitute an Asset Sale, or which would not be subject to the extent such laws and regulations are applicable in connection with each repurchase terms of Notes pursuant to an Excess Proceeds Offer. To the extent that the provisions of any securities laws or regulations conflict with the Asset Sales provisions Sale covenant contained in the 1997 Notes Indenture, shall not constitute an Asset Sale for purposes of this Agreement, the Company will comply with the applicable securities laws and regulations and will not be deemed to have breached its obligations under Section 5(j) of this Agreement by virtue of such conflictAsset Sale covenant.
Appears in 2 contracts
Samples: Indenture (Echostar Communications Corp), Indenture (Echostar Communications Corp)
Asset Sales. (i) The Company Borrower shall not, and shall not permit any Restricted Subsidiary of its Subsidiaries to, engage Transfer any asset (including any Capital Stock owned by Borrower or any of its Subsidiaries), including any Transfer, license or cross-license of Intellectual Property to, from or with an Affiliate of Borrower or any other Person, nor shall Borrower permit any of its Subsidiaries to issue any additional Capital Stock in such Subsidiary (other than to Borrower or another Subsidiary of Borrower in compliance with Section 10.09), except:
(a) sales of (i) inventory, used, worn-out, obsolete or surplus equipment or property and (ii) Permitted Investments, in each case in the ordinary course of business;
(b) Transfers among Borrower Parties; provided that in the case of a Transfer where the transferee Borrower Party is a Subsidiary, such Subsidiary is a Subsidiary Guarantor who has complied with the terms of this Agreement, including the execution and delivery of the applicable Security Documents;
(i) Permitted Intercompany Transfers and (ii) other Transfers from Borrower Parties to Subsidiaries that are not Subsidiary Guarantors, in the ordinary course of business and in an aggregate amount not to exceed $[***] in any Asset Sale unless fiscal year;
(xd) sales of assets, the proceeds of which are in an aggregate amount less than $[***]; provided that the consideration received by the Company or such Restricted Subsidiary for such Asset Sale is not less than assets shall be in an amount at least equal to the fair market value thereof (determined in good faith by the Principal Financial Officer);
(e) Non-exclusive licenses of patents, trademarks and other intellectual property rights granted by Borrower or its Subsidiaries in the ordinary course of business and not interfering in any respect with the ordinary conduct of the assets sold evidenced by a resolution business of the board of directors of such entity set forth in an Officers' Certificate delivered to the Holders and (y) the consideration received by the Company or the relevant Restricted Subsidiary in respect of such Asset Sale consists of at least 75% cash or Cash Equivalents (for purposes of this clause (y), cash and Cash Equivalents includes (A) any liabilities (as reflected in the Company's consolidated balance sheet) of the Company or any Restricted Subsidiary (other than contingent liabilities and liabilities that are by their terms subordinated to the Notes or any Guarantee) that are assumed by any transferee of any such assets or other property in such Asset Sale, and where the Company or the relevant Restricted Subsidiary is released from any further liability in connection therewith with respect to such liabilities, (B) any securities, notes or other similar obligations received by the Company or any such Restricted Subsidiary from such transferee that are converted within 180 days of the consummation of the related Asset Sale by the Company Borrower or such Restricted Subsidiary into cash and Cash Equivalents (to the extent of the net cash proceeds or the Cash Equivalents (net of related costs) received upon such conversion) and (C) any Designated Noncash Consideration received by the Company or any such Restricted Subsidiary in the Asset Sale having an aggregate fair market value, as determined by the Board of the Company, taken together with all other Designated Noncash Consideration received pursuant to this clause that is at that time outstanding, not to exceed the greater of:
(1) $10,000,000Subsidiary; and
(2f) 15% Transfers of Consolidated Tangible Assets at the time of the receipt of such Designated Noncash Consideration (with the fair market value of each item of such Designated Noncash Consideration being measured at the time received and without giving effect to subsequent changes in value).
(ii) If the Company or any Restricted Subsidiary engages in an Asset Sale, the Company may, at its option, within 12 months after such Asset Sale, (1) apply all or a portion of the Net Cash Proceeds to the permanent reduction of amounts outstanding under the Credit Agreement (and to correspondingly reduce the commitments, if any, with respect thereto) or to the permanent repayment of other Senior Indebtedness of the Company or a Restricted Subsidiary, provided that the repayment of any Indebtedness incurred under the Credit Agreement accounts receivable in connection with the acquisition compromise, settlement or collection thereof (and not as part of any Facility with the proceeds of any subsequent Sale and Leaseback Transaction relating to such Facility shall not be required to result financing transaction), effected in the permanent reduction ordinary course of the amounts outstanding under the Credit Agreement or correspondingly permanently reduce the commitments thereunder, or (2) invest (or enter into a legally binding agreement to invest) all or a portion of such Net Cash Proceeds business and in properties and assets to replace the properties and assets that were the subject of the Asset Sale or in properties and assets that will be used in the businesses of the Company or its Restricted Subsidiaries, as the case may be, existing on the Closing Date or in businesses the same, similar or reasonably related thereto. If any such legally binding agreement to invest such Net Cash Proceeds is terminated, the Company may, within 90 days of such termination or within 12 months of such Asset Sale, whichever is later, invest such Net Cash Proceeds as provided in clause (1) or (2) (without regard to the parenthetical contained in such clause (2)) above. Pending the final application of any such Net Cash Proceeds, the Company may temporarily reduce revolving credit borrowings or otherwise invest such Net Cash Proceeds in a manner that is not prohibited by this Agreement. The amount of such Net Cash Proceeds not so used as set forth above in this paragraph shall constitute "Excess Proceeds."
(c) When the an aggregate amount of Excess Proceeds exceeds $10,000,000, the Company will, within 30 days thereafter, make an offer to purchase (an "Excess Proceeds Offer") from all Holders of Notes on a pro rata basis, in accordance with the procedures set forth in this Agreement, the maximum principal amount (expressed as a multiple of prior to any compromise, settlement or other adjustment) not to exceed $1,000) of Notes that may be purchased with the Excess Proceeds, at a purchase price [***] in cash equal to 100% of the principal amount thereof, plus accrued interest, if any, to the date such offer to purchase is consummated. To the extent that the aggregate principal amount of Notes tendered pursuant to such offer to purchase is less than the Excess Proceeds, the Company may use such deficiency for general corporate purposes. If the aggregate principal amount of Notes validly tendered and not withdrawn by holders thereof exceeds the Excess Proceeds, the Notes to be purchased will be selected on a pro rata basis. Upon completion of such offer to purchase, the amount of Excess Proceeds will be reset to zeroany fiscal year.
(iii) 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 Excess Proceeds Offer. To the extent that the provisions of any securities laws or regulations conflict with the Asset Sales provisions of this Agreement, the Company will comply with the applicable securities laws and regulations and will not be deemed to have breached its obligations under Section 5(j) of this Agreement by virtue of such conflict.
Appears in 2 contracts
Samples: Loan Agreement (Mevion Medical Systems, Inc.), Loan Agreement (Mevion Medical Systems, Inc.)
Asset Sales. (a) The Issuer will not, and will not permit any of its Restricted Subsidiaries to, consummate an Asset Sale, in any single transaction or series of related transactions, unless:
(i) The Company shall notthe Issuer (or the Restricted Subsidiary, and shall not permit any Restricted Subsidiary to, engage in any as the case may be) receives consideration at the time of the Asset Sale unless at least equal to the Fair Market Value (x) measured as of the consideration received by date of the Company or such Restricted Subsidiary for definitive agreement relating to such Asset Sale is not less than the fair market value Sale) of the assets assets, rights or Equity Interests issued, sold evidenced by a resolution or otherwise disposed of the board of directors of such entity set forth in an Officers' Certificate delivered to the Holders and (y) the consideration received by the Company or the relevant Restricted Subsidiary in respect of such Asset Sale consists of Sale;
(ii) at least 75% of the consideration received in the Asset Sale by the Issuer and its Restricted Subsidiaries in the manner referred to in Section 5.14(a)(i) is in the form of cash or Cash Equivalents (for Equivalents. For purposes of this clause (y)provision, cash and Cash Equivalents includes each of the following will be deemed to be cash:
(A) any liabilities (as reflected in the Company's consolidated balance sheet) of the Company Issuer or any Restricted Subsidiary (other than contingent liabilities and or liabilities that are by their terms subordinated to the Notes or any Note Guarantee) that are assumed by any the transferee of any such assets or other property in rights pursuant to a customary novation agreement or similar agreement that releases the Issuer or such Asset Sale, and where the Company or the relevant Restricted Subsidiary is released from any further liability in connection therewith with respect to such liabilities, liability;
(B) any securities, notes or other similar obligations received by the Company Issuer or any such Restricted Subsidiary from such transferee that are converted are, within 180 days of the consummation of the related applicable Asset Sale Sale, converted by the Company Issuer or such Restricted Subsidiary into cash and or Cash Equivalents (Equivalents, to the extent of the net cash proceeds or the Cash Equivalents (net of related costs) received upon such in that conversion) and ;
(C) any Designated Noncash Consideration in connection with a sale of the Xxxx Project, (1) Equity Interests of a Xxxx RTO Entity received by the Company Issuer or any such a Restricted Subsidiary or (2) Equity Interests of any other Person or ownership interests in the Asset Sale having an aggregate fair market valuea joint venture entity, as determined in either case, received by the Board Issuer or a Restricted Subsidiary (and provided that, immediately after such Asset Sale, the Xxxx Project will constitute a material asset of the Company, taken together with all other Designated Noncash Consideration such Person or joint venture) (any Equity Interests or ownership interests received pursuant to under this clause that is at that time outstanding, not (C) being referred to exceed the greater of:
(1) $10,000,000as “Xxxx Equity Interests”); and
(2D) 15% in connection with a sale of Consolidated Tangible Assets at Xxxx Equity Interests, any Equity Interests received by the time Issuer or a Restricted Subsidiary; and
(iii) to the extent that the Asset Sale was of Collateral, any consideration from the Asset Sale received by the Issuer or a Restricted Subsidiary (including any Equity Interests or other ownership interests received under Section 5.14(a)(ii)(C) or Section 5.14(a)(ii)(D)) that is not in the form of cash or Cash Equivalents is concurrently with its acquisition added to the Collateral securing the Notes in the manner provided for in this Indenture or any of the Security Documents.
(b) Within 360 days after the receipt of such Designated Noncash Consideration (with the fair market value of each item of such Designated Noncash Consideration being measured at the time received and without giving effect to subsequent changes in value).
(ii) If the Company or any Restricted Subsidiary engages in Net Proceeds from an Asset Sale, the Company mayIssuer or any Restricted Subsidiary may apply those Net Proceeds for any combination of the following purposes:
(i) to repay permanently any Indebtedness other than unsecured or Subordinated Indebtedness;
(ii) to acquire all or substantially all of the assets of, at or to acquire Capital Stock of, a Person that is engaged in a Permitted Business and that, in the case of an acquisition of Capital Stock, is or becomes a Restricted Subsidiary of the Issuer;
(iii) to make a capital expenditure; or
(iv) to acquire any other assets that are not classified as current assets under IFRS and that are used or useful in a Permitted Business.
(c) Notwithstanding Section 5.14(b), in the event the Issuer or any of its optionRestricted Subsidiaries enters into a binding agreement committing to make an acquisition, expenditure or investment in compliance with clauses (ii), (iii) or (iv) of Section 5.14(b) within 12 months 360 days after such the receipt of any Net Proceeds from an Asset Sale, (1) apply all or such commitment will be treated as a portion permitted application of the Net Cash Proceeds to from the permanent reduction of amounts outstanding under the Credit Agreement (and to correspondingly reduce the commitments, if any, with respect thereto) or to the permanent repayment of other Senior Indebtedness date of the Company execution of such agreement until the earlier of (i) the date on which such acquisition or a Restricted Subsidiary, provided that investment is consummated or such expenditure made or such agreement is terminated and (ii) the repayment of any Indebtedness incurred under 180th day after the Credit Agreement in connection with the acquisition of any Facility with the proceeds of any subsequent Sale and Leaseback Transaction relating to such Facility shall not be required to result in the permanent reduction expiration of the amounts outstanding under the Credit Agreement or correspondingly permanently reduce the commitments thereunder, or aforementioned 360 day period.
(2d) invest (or enter into a legally binding agreement to invest) all or a portion of such Net Cash Proceeds in properties and assets to replace the properties and assets that were the subject of the Asset Sale or in properties and assets that will be used in the businesses of the Company or its Restricted Subsidiaries, as the case may be, existing on the Closing Date or in businesses the same, similar or reasonably related thereto. If any such legally binding agreement to invest such Net Cash Proceeds is terminated, the Company may, within 90 days of such termination or within 12 months of such Asset Sale, whichever is later, invest such Net Cash Proceeds as provided in clause (1) or (2) (without regard to the parenthetical contained in such clause (2)) above. Pending the final application of any such Net Cash Proceeds, the Company Issuer may temporarily reduce revolving credit borrowings or otherwise invest such the Net Cash Proceeds in a any manner that is not prohibited by this Agreement. The amount of such Indenture.
(e) Any Net Cash Proceeds from Asset Sales that are not so used applied or invested as set forth above provided in this paragraph shall constitute "Excess Proceeds."
Sections 5.14(b) or (c) When will constitute “Excess Proceeds”.
(f) Not later than the 361st day after any Asset Sale, if the aggregate amount of Excess Proceeds exceeds $10,000,00025.0 million, the Company will, within 30 days thereafter, Issuer will make an offer to purchase (an "Excess Proceeds Offer") from all Holders of Notes on a pro rata basis, offer (an “Asset Sale Offer”) to all Holders and to all holders of other Indebtedness that ranks pari passu in accordance right of payment with the procedures Notes containing provisions similar to those set forth in this AgreementIndenture with respect to offers to purchase or redeem with the proceeds of sales of assets, in each case to purchase the maximum principal amount (expressed as a multiple of $1,000) of Notes and such other pari passu Indebtedness, as the case may be, that may be purchased with out of the Excess Proceeds, at a purchase . The offer price in cash any Asset Sale Offer (the “Asset Sale Payment”) will be equal to 100% of the principal amount thereof(or accreted value in the case of any such other pari passu Indebtedness, as the case may be, issued with an original issue discount) plus accrued and unpaid interest, if any, to but excluding the date such offer to of purchase is consummated. To (the extent that the aggregate principal amount of Notes tendered pursuant to such offer to purchase is less than the Excess Proceeds“Asset Sale Payment Date”), the Company may use such deficiency for general corporate purposes. and will be payable in cash.
(g) If the aggregate principal amount of Notes validly and other pari passu Indebtedness, as the case may be, tendered and not withdrawn by holders thereof into such Asset Sale Offer exceeds the amount of Excess Proceeds, the Trustee will select the Notes and such other pari passu Indebtedness, as the case may be, to be purchased will be selected on a pro rata basisbasis (subject to the procedures of the relevant Depository), on the basis of the aggregate principal amounts (or accreted values) tendered in round denominations (which in the case of the Notes will be minimum denominations of $1.00 principal amount or integral multiples of $1.00 in excess thereof). 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. Upon completion of such offer to purchaseeach Asset Sale Offer, the amount of Excess Proceeds will be reset to at zero.
(h) The Issuer shall commence an Asset Sale Offer by delivering or sending (by first-class mail), a written notice to each Holder with a copy to the Trustee:
(i) describing the transaction or transactions that constitute the Asset Sale;
(ii) offering to purchase, pursuant to the Asset Sale Offer, on the Asset Sale Payment Date, which date will be, subject to any contrary requirements of applicable law, a Business Day no earlier than 30 days and no later than 60 days from the date such notice is delivered or mailed, all Notes properly tendered pursuant to such Asset Sale Offer; and
(iii) describing the procedures, as required by this Indenture, that Holders must follow in order to (A) tender Notes (or portions thereof) for payment and (B) withdraw an election to tender Notes (or portions thereof) for payment.
(i) On the Asset Sale Payment Date, the Issuer or its designated agent will, to the extent lawful:
(i) accept for payment all Notes or portions thereof properly tendered pursuant to the Asset Sale Offer;
(ii) deposit with the Paying Agent an amount equal to the Asset Sale Payment in respect of all Notes or portions thereof properly tendered; and
(iii) deliver or cause to be delivered to the Trustee the Notes accepted for purchase together with an Officer’s Certificate stating the aggregate principal amount of Notes or portions thereof being purchased by the Issuer.
(j) On the Asset Sale Payment Date, the Paying Agent will promptly transmit to each Holder of Notes properly tendered and not withdrawn the Asset Sale Payment for such tendered Notes, and the Holder of a Note of which a part only is repurchased shall be entitled to receive, without expense to such Holder, one or more new Notes for the unpurchased part so surrendered, and (i) in the case of Definitive Notes, the Issuer shall execute and the Trustee shall authenticate and deliver without charge to the Holder thereof or upon the Holder’s order one or more new Notes for the unpurchased part of the principal amount of the Notes so surrendered and (ii) in the case of Global Notes, the Trustee shall make notations on the Global Notes (or in the case of uncertificated Global Notes, in accordance with the Trustee’s Internal Procedures) of the principal amount thereof so purchased.
(k) Any Note accepted for payment pursuant to an Asset Sale Offer will cease to accrue interest on and after the Asset Sale Payment Date unless the Issuer defaults in making the Asset Sale Payment. If the Asset Sale Payment Date is on or after a Record Date and on or before the related Interest Payment Date, any accrued and unpaid interest will be paid to the Person in whose name a Note is registered at the close of business on such Record Date, and no other interest will be payable to Holders who tender pursuant to the Asset Sale Offer.
(l) The Company Issuer will comply with the requirements of Rule 14e-1 under the Exchange Act and any other applicable securities laws and regulations thereunder to the extent such those laws and regulations are applicable in connection with each repurchase of Notes pursuant to an Excess Proceeds Asset Sale Offer. To the extent that the provisions of any applicable securities laws or and regulations conflict with the Asset Sales provisions of this AgreementSection 5.14, the Company Issuer will comply with the applicable securities such laws and regulations and will not be deemed to have breached its obligations under this Section 5(j) of this Agreement 5.14 by virtue of such conflict.
(m) Notwithstanding the foregoing provisions of this Section 5.14, any sale, assignment, transfer, conveyance, lease or other disposition of all or substantially all of the properties or assets of the Issuer and its Restricted Subsidiaries taken as a whole, in one or more related transactions, to another Person, will be governed by Section 9.1 and will not be subject to this Section 5.14.
Appears in 2 contracts
Samples: Trust Indenture, Trust Indenture
Asset Sales. (ia) The Company shall will not, and shall will not permit any of its Restricted Subsidiary Subsidiaries to, engage in any consummate an Asset Sale unless unless:
(x1) the Company (or the Restricted Subsidiary, as the case may be) receives consideration at the time of the Asset Sale at least equal to the Fair Market Value of the assets or Equity Interests issued or sold or otherwise disposed of; and
(2) at least 75% of the consideration received in the Asset Sale by the Company or such Restricted Subsidiary for such Asset Sale is not less than in the fair market value form of the assets sold evidenced by a resolution of the board of directors of such entity set forth in an Officers' Certificate delivered to the Holders and (y) the consideration received by the Company or the relevant Restricted Subsidiary in respect of such Asset Sale consists of at least 75% cash or cash, Cash Equivalents (for or a combination thereof. For purposes of this clause provision (ybut not the definition of Net Proceeds), cash and Cash Equivalents includes each of the following shall be deemed to be cash:
(A) any liabilities (liabilities, as reflected in shown on the Company's ’s most recent consolidated balance sheet) , of the Company or any Restricted Subsidiary (other than contingent liabilities and liabilities that are by their terms subordinated to the Notes or any Note Guarantee) that are assumed by any the transferee of any such assets or other property in such Asset Sale, and where pursuant to a customary assumption agreement that releases the Company or the relevant such Restricted Subsidiary is released from any further liability in connection therewith with respect to such liabilities, liability;
(B) any securities, notes or other similar obligations received by the Company or any such Restricted Subsidiary from such transferee that are converted are, within 180 days following receipt thereof, converted (including by way of the consummation of the related Asset Sale a financing transaction) by the Company or such Restricted Subsidiary into cash and Cash Equivalents (cash, to the extent of the net cash proceeds or the Cash Equivalents (net of related costs) received upon such in that conversion) and ;
(C) any stock or assets of the kind referred to in clauses (3) or (5) of Section 4.10(b);
(D) any Designated Noncash Consideration received by the Company or any such Restricted Subsidiary thereof in the such Asset Sale having an aggregate fair market value, as determined by the Board of the Companya Fair Market Value, taken together with all other Designated Noncash Consideration received pursuant to this clause (D) that is at that time outstanding, not to exceed the greater of:
of (1i) $10,000,000; and
50.0 million and (2ii) 155.0% of Consolidated Tangible Total Assets at the time of the receipt of such Designated Noncash Consideration (Consideration, with the fair market value Fair Market Value of each item of such Designated Noncash Consideration being measured at the time received and without giving effect to subsequent changes in value).; and
(iiE) If the Company cash held in escrow as security for any purchase price settlement, for damages in respect of a breach of representations and warranties or any Restricted Subsidiary engages in an Asset Sale, the Company may, at its option, within 12 months after such Asset Sale, (1) apply all certain covenants or a portion of the Net Cash Proceeds to the permanent reduction of amounts outstanding under the Credit Agreement (and to correspondingly reduce the commitments, if any, with respect thereto) or to the permanent repayment for payment of other Senior Indebtedness of the Company or a Restricted Subsidiary, provided that the repayment of any Indebtedness incurred under the Credit Agreement contingent obligations in connection with the acquisition Asset Sale.
(b) Within 450 days after the receipt of any Facility Net Proceeds from an Asset Sale (provided that with the proceeds respect to clauses (3) and (5) of any subsequent Sale and Leaseback Transaction relating to this Section 4.10(b), a binding commitment entered into within such Facility 450 day period shall not be required to result in the permanent reduction treated as a permitted application of the amounts outstanding under Net Proceeds from the Credit Agreement date of such commitment so long as such Net Proceeds are applied to satisfy such commitment within 180 days of such commitment; provided further that if any such commitment is cancelled or correspondingly permanently reduce terminated for any reason before such Net Proceeds are applied, then such Net Proceeds shall constitute Excess Proceeds), the commitments thereunder, or (2) invest Company (or enter into a legally binding agreement to invest) all or a portion of such Net Cash Proceeds in properties and assets to replace the properties and assets that were the subject of the Asset Sale or in properties and assets that will be used in the businesses of the Company or its applicable Restricted SubsidiariesSubsidiary, as the case may be, existing on the Closing Date or in businesses the same, similar or reasonably related thereto. If any such legally binding agreement to invest ) may apply such Net Cash Proceeds Proceeds, at its option:
(1) to repay Senior Debt and, if the Senior Debt repaid is terminatedrevolving credit Indebtedness, to correspondingly reduce commitments with respect thereto; provided that if such Senior Debt is not secured by a Lien, the Company may(or the applicable Restricted Subsidiary, within 90 days as the case may be) will, equally and ratably, reduce Obligations under the Notes by, at its option, (A) redeeming Notes, (B) making an offer (in accordance with the procedures set forth below for an Asset Sale Offer) to all Holders to purchase their Notes at 100% of the principal amount thereof, plus the amount of accrued and unpaid interest and Special Interest, if any, on the principal amount of Notes to be repurchased or (C) purchasing Notes through open market purchases (to the extent such termination purchases are at a price equal to or within 12 months higher than 100% of the principal amount thereof) in a manner that complies with applicable securities law;
(2) to repay any Indebtedness of any Restricted Subsidiary that is not a Guarantor (other than any Indebtedness owed to the Company or another Restricted Subsidiary);
(3) to acquire all or substantially all of the assets of, or any Capital Stock of any Person engaged in, another Permitted Business, if, after giving effect to any such acquisition of Capital Stock, the Permitted Business is or becomes a Restricted Subsidiary of the Company;
(4) to make a capital expenditure that is used or useful in a Permitted Business;
(5) to acquire other assets that are not classified as current assets under GAAP and that are used or useful in a Permitted Business; or
(6) to make an Asset Sale Offer by designating such Net Proceeds as “Excess Proceeds” or, to the extent a Change of Control has occurred as a result of such Asset Sale, whichever is later, invest such Net Cash Proceeds as provided in clause (1) or (2) (without regard to the parenthetical contained in such clause (2)) abovemake a Change of Control Offer. Pending the final application of any such Net Cash Proceeds, the Company may temporarily reduce revolving credit borrowings or otherwise invest such the Net Cash Proceeds in a any manner that is not prohibited by this Agreement. The amount of such Net Cash Proceeds not so used as set forth above in this paragraph shall constitute "Excess ProceedsIndenture."
(c) Any Net Proceeds from Asset Sales that are not applied or invested as provided in Section 4.10(b) will constitute “Excess Proceeds.” When the aggregate amount of Excess Proceeds exceeds $10,000,00020.0 million, within ten days thereof, the Company will, within 30 days thereafter, will make an offer to purchase (an "Excess Proceeds Offer") from all Holders of Notes on a pro rata basis, Asset Sale Offer in accordance with the procedures set forth in Section 3.09 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 Agreement, Indenture with respect to offers to purchase or redeem with the proceeds of sales of assets in accordance with Section 3.09 hereof to purchase the maximum principal amount (expressed as a multiple of $1,000) of Notes and such other pari passu Indebtedness that may be purchased with out of the Excess Proceeds, at a purchase . The offer price in cash any Asset Sale Offer will be equal to 100% of the principal amount thereof, plus accrued interestand unpaid interest and Special Interest, if any, to the date such offer to purchase is consummatedof purchase, and will be payable in cash. To the extent that the aggregate principal amount If any Excess Proceeds remain after consummation of Notes tendered pursuant to such offer to purchase is less than the Excess Proceedsan Asset Sale Offer, the Company may use such deficiency those Excess Proceeds for general corporate purposesany purpose not otherwise prohibited by this Indenture. If the aggregate principal amount of the Notes and other pari passu Indebtedness properly and validly tendered and not withdrawn by holders thereof into such Asset Sale Offer exceeds the amount of Excess Proceeds, the Trustee shall select the Notes and the Company or such other applicable party shall select such other pari passu Indebtedness to be purchased will be selected on a pro rata basis. Upon completion of such offer to purchaseeach Asset Sale Offer, the amount of Excess Proceeds will be reset to at zero.
(iiid) 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 Excess Proceeds Asset Sale Offer. To the extent that the provisions of any securities laws or regulations conflict with the Asset Sales provisions of Section 3.09 hereof or this AgreementSection 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 5(j) of 3.09 hereof or this Agreement Section 4.10 by virtue of such conflictcompliance.
Appears in 2 contracts
Asset Sales. (i) The Company shall not, and shall not permit any of its Restricted Subsidiary Subsidiaries to, engage in any consummate an Asset Sale unless unless:
(xi) the Company (or the Restricted Subsidiary, as the case may be) receives consideration received by at the Company or such Restricted Subsidiary for time of such Asset Sale is not less than at least equal to the fair market value of the assets or Equity Interests issued or sold or otherwise disposed of;
(ii) in the event of an Asset Sale involving assets having a fair market value in excess of $5.0 million (or in excess of $10.0 million in the case of the sale of Company stores), such fair market value is determined by the Company's Board of Directors and evidenced by a resolution of the board Board of directors of such entity Directors set forth in an Officers' Certificate delivered to the Holders and Trustee; and
(yiii) at least 75% of the consideration therefor received by the Company or the relevant such Restricted Subsidiary is in respect the form of such Asset Sale consists of at least 75% cash or Cash Equivalents (for Equivalents. For purposes of this clause (y)provision, cash and Cash Equivalents includes each of the following shall be deemed to be cash:
(A) any liabilities (as reflected in shown on the Company's consolidated or such Restricted Subsidiary's most recent balance sheet) of the Company or any Restricted Subsidiary (other than contingent liabilities and liabilities that are by their terms subordinated to the Notes or any Subsidiary Guarantee) that are assumed by any the transferee of any such assets or other property in such Asset Sale, and where pursuant to a customary novation agreement that releases the Company or the relevant such Restricted Subsidiary is released from any further liability in connection therewith with respect to such liabilities, liability;
(B) any securities, notes or other similar obligations received by the Company or any such Restricted Subsidiary from such transferee that are contemporaneously (subject to ordinary settlement periods) converted within 180 days of the consummation of the related Asset Sale by the Company or such Restricted Subsidiary into cash and Cash Equivalents (to the extent of the net cash proceeds or the Cash Equivalents (net of related costs) received upon such in that conversion) and ); and
(C) any Designated Noncash Consideration received by the Company or any of its Restricted Subsidiaries in such Restricted Subsidiary in the Asset Sale having an aggregate fair market value, as determined by the Board of the Company, taken together with all other Designated Noncash Consideration received since the date of this Indenture pursuant to this clause (C) that is at that time outstanding, not to exceed the greater of:
of (1i) $10,000,000; and
40.0 million and (2ii) 1510% of Consolidated Tangible Total Assets at the time of the receipt of such Designated Noncash Consideration (with the fair market value of each item of such Designated Noncash Consideration being measured at the time received and without giving effect to subsequent changes in value).
(ii) If . Within 365 days after the Company or receipt of any Restricted Subsidiary engages in Net Proceeds from an Asset Sale, the Company may, may apply such Net Proceeds at its option, within 12 months after such Asset Sale, :
(1i) apply all to repay Senior Debt or a portion of the Net Cash Proceeds to the permanent reduction of amounts outstanding under the Credit Agreement Guarantor Senior Debt (and to correspondingly reduce commitments if the commitments, if any, with respect theretoSenior Debt or Guarantor Senior Debt repaid is revolving credit borrowings);
(ii) to acquire all or to the permanent repayment of other Senior Indebtedness substantially all of the Company assets of, or a Restricted Subsidiary, provided that the repayment of any Indebtedness incurred under the Credit Agreement in connection with the acquisition of any Facility with the proceeds of any subsequent Sale and Leaseback Transaction relating to such Facility shall not be required to result in the permanent reduction majority of the amounts outstanding under the Credit Agreement or correspondingly permanently reduce the commitments thereunderVoting Stock of, or another Permitted Business;
(2iii) invest to make a capital expenditure; and/or
(or enter into a legally binding agreement iv) to invest) all or a portion of such Net Cash Proceeds in properties and assets to replace the properties and acquire assets that were the subject of the Asset Sale are used or useable in properties and assets that will be used in the businesses of the Company or its Restricted Subsidiaries, as the case may be, existing on the Closing Date or in businesses the same, similar or reasonably related thereto. If any such legally binding agreement to invest such Net Cash Proceeds is terminated, the Company may, within 90 days of such termination or within 12 months of such Asset Sale, whichever is later, invest such Net Cash Proceeds as provided in clause (1) or (2) (without regard to the parenthetical contained in such clause (2)) abovea Permitted Business. Pending the final application of any such Net Cash Proceeds, the Company may temporarily reduce revolving credit borrowings or otherwise invest such Net Cash Proceeds in a any manner that is not prohibited by this AgreementIndenture. The amount of such Any Net Cash Proceeds from Asset Sales that are not so used applied or invested as set forth above provided in this the preceding paragraph shall will constitute "Excess Proceeds."
(c) " When the aggregate amount of Excess Proceeds exceeds $10,000,00015.0 million, the Company will, within 30 days thereafter, will make an offer Asset Sale Offer to purchase (an "Excess Proceeds Offer") from all Holders of Notes on a pro rata basis, in accordance and all holders of other Indebtedness that is pari passu with the procedures Notes containing provisions similar to those set forth in this Agreement, Indenture with respect to offers to purchase or redeem with the proceeds of sales of assets to purchase the maximum principal amount (expressed as a multiple of $1,000) of Notes and such other pari passu Indebtedness that may be purchased with out of the Excess Proceeds, at a purchase . The offer price in cash any Asset Sale Offer will be equal to 100% of the principal amount thereof, plus accrued interestand unpaid interest and Additional Interest, if any, to the date such offer to purchase is consummatedof purchase, and will be payable in cash. To the extent that the aggregate principal amount If any Excess Proceeds remain after consummation of Notes tendered pursuant to such offer to purchase is less than the Excess Proceedsan Asset Sale Offer, the Company may use such deficiency Excess Proceeds for general corporate purposesany purpose not otherwise prohibited by this Indenture. If the aggregate principal amount of Notes validly and such other pari passu Indebtedness tendered and not withdrawn by holders thereof into such Asset Sale Offer exceeds the amount of Excess Proceeds, the Trustee shall select the Notes and such other pari passu Indebtedness to be purchased will be selected on a pro rata basis. Upon completion of such offer to purchaseeach Asset Sale Offer, the amount of Excess Proceeds will shall be reset to at zero.
(iii) 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 Excess Proceeds Offer. To the extent that the provisions of any securities laws or regulations conflict with the Asset Sales provisions of this Agreement, the Company will comply with the applicable securities laws and regulations and will not be deemed to have breached its obligations under Section 5(j) of this Agreement by virtue of such conflict.
Appears in 2 contracts
Samples: Indenture (Dominos Pizza Government Services Division Inc), Indenture (Dominos Inc)
Asset Sales. If the Company or any Restricted Subsidiary, in a single transaction or a series of related transactions:
(a) sells, leases (in a manner that has the effect of a disposition), conveys or otherwise disposes of any of its assets (including by way of a sale-and-leaseback transaction), other than: (i) The sales or other dispositions of inventory in the ordinary course of business; (ii) sales or other dispositions to the Company shall not, and shall not permit any or a Wholly Owned Restricted Subsidiary to, engage in any Asset Sale unless (x) of the consideration received Company by the Company or such any Restricted Subsidiary Subsidiary; (iii) sales or other dispositions of accounts receivable to DNCC for such Asset Sale is not less than cash in an amount at least equal to the fair market value of such accounts receivable; (iv) sales or other dispositions of rights to construct or launch satellites; and (v) sales or other dispositions permitted under Section 4.21 of this Indenture (provided that the sale, lease, conveyance or other disposition of all or substantially all of the assets sold of the Company shall be governed by the provisions of Article 5 of this Indenture);
(b) issues or sells Equity Interests of any Restricted Subsidiary (other than any issue or sale of Equity Interests of ETC or a Subsidiary which constitutes a Non-Core Asset permitted under Section 4.21 of this Indenture); in either case, which assets or Equity Interests: (i) have a fair market value in excess of $50 million (as determined in good faith by the Board of Directors of the Company evidenced by a resolution of the board Board of directors Directors of such entity the Company and set forth in an Officers' Certificate delivered to the Holders and Trustee); or (yii) are sold or otherwise disposed of for net proceeds in excess of $50 million (each of the foregoing, an "Asset Sale"), then:
(A) the Company or such Restricted Subsidiary, as the case may be, must receive consideration at the time of such Asset Sale at least equal to the fair market value (as determined in good faith by the Board of Directors of the Company evidenced by a resolution of the Board of Directors of the Company) and set forth in an Officers' Certificate delivered to the Trustee not later than ten business days following a request from the Trustee which certificate shall cover each Asset Sale made in the six months preceding the date of request, as the case may be, of the assets sold or otherwise disposed of; and
(B) at least 75% of the consideration therefor received by the Company or such Restricted Subsidiary, as the relevant case may be, must be in the form of (x) cash, Cash Equivalents or Marketable Securities, (y) any asset which is promptly (and in no event later than 90 days after the date of transfer to the Company or a Restricted Subsidiary in respect Subsidiary) converted into cash; provided that to the extent that such conversion is at a price that is less than the fair market value (as determined above) of such asset at the time of the Asset Sale consists in which such asset was acquired, the Company shall be deemed to have made a 53 60 Restricted Payment in the amount by which such fair market value exceeds the cash received upon conversion; and/or (z) properties and capital assets (excluding Equity Interests) to be used by the Company or any of its Restricted Subsidiaries in a business permitted under Section 4.17 of this Indenture; provided, however, that up to $40 million of assets in addition to assets specified in clauses (x), (y) or (z) above at least 75% any one time may be considered to be cash or Cash Equivalents (for purposes of this clause (yB), provided that the provisions of the next paragraph are complied with as such non-cash and Cash Equivalents includes (A) assets are converted to cash. The amount of any liabilities (as reflected in the Company's consolidated balance sheet) of the Company or any Restricted Subsidiary (other than contingent liabilities and liabilities that are by their terms subordinated to the Notes or any Guarantee) that are assumed by any or on behalf of the transferee of any such assets or other property in such connection with an Asset Sale, Sale (and where from which the Company or the relevant such Restricted Subsidiary is released are unconditionally released) shall be deemed to be cash for the purpose of this clause (B). The Net Proceeds from such Asset Sale shall be used only: (i) to acquire assets used in, or stock or other ownership interests in a Person that upon the consummation of such Asset Sale becomes a Restricted Subsidiary and will be engaged primarily in, the business of the Company as described under Section 4.17 of this Indenture, to repurchase the Notes, 1999 EDBS Notes or EDBS Exchange Notes or if the Company sells any of its satellites after launch such that the Company or its Restricted Subsidiaries own less than three in-orbit satellites, only to purchase a replacement satellite; or (ii) as set forth in the next sentence. Any Net Proceeds from any further liability Asset Sale that are not applied or invested as provided in connection therewith the preceding sentence within 365 days after such Asset Sale shall constitute "Excess Proceeds" and shall be applied to an offer to purchase Notes and other senior Indebtedness of the Company if and when required under Section 3.09 of this Indenture. Clause (B) of the second preceding paragraph shall not apply to all or such portion of the consideration: (i) as is properly designated by the Company in an Asset Sale as being subject to this paragraph; and (ii) with respect to such liabilities, (B) any securities, notes or other similar obligations which the aggregate fair market value at the time of receipt of all consideration received by the Company or any such Restricted Subsidiary from in all such transferee Asset Sales so designated does not exceed the amount that EDBS and its Subsidiaries are converted within 180 days permitted to designate as a result of the consummation cash contributions made to EDBS by EchoStar pursuant to the 1999 EDBS Notes Indentures, plus, to the extent any such consideration did not satisfy clauses (B)(x) or (B)(z) above, upon the exchange or repayment of such consideration for or with assets which satisfy such clauses, an amount equal to the fair market value of such consideration (evidenced by a resolution of the related Board of Directors of the Company and set forth in an Officers' Certificate delivered to the Trustee as set forth in clause (A) above). In addition, clause (B) above shall not apply to any Asset Sale by Sale: (x) where assets not essential to the direct broadcast satellite business are contributed to a joint venture between the Company or one of its Restricted Subsidiaries and a third party that is not an Affiliate of EchoStar or any of its Subsidiaries; provided that following the sale, lease, conveyance or other disposition the Company or one of its Wholly Owned Restricted Subsidiaries owns at least 50% of the voting and equity interest in such Restricted Subsidiary into cash and Cash Equivalents joint venture, (y) to the extent of the net cash proceeds or the Cash Equivalents (net of related costs) received upon such conversion) and (C) any Designated Noncash Consideration consideration therefor received by the Company or any such a Restricted Subsidiary in the Asset Sale having an aggregate fair market value, as determined by the Board of the Company, taken together with all other Designated Noncash Consideration received pursuant to this clause that is at that time outstanding, not to exceed the greater of:
(1) $10,000,000; and
(2) 15% of Consolidated Tangible Assets at the time of the receipt of such Designated Noncash Consideration (with the fair market value of each item of such Designated Noncash Consideration being measured at the time received and without giving effect to subsequent changes in value).
(ii) If the Company would constitute Indebtedness or any Restricted Subsidiary engages in an Asset Sale, the Company may, at its option, within 12 months after such Asset Sale, (1) apply all or a portion of the Net Cash Proceeds to the permanent reduction of amounts outstanding under the Credit Agreement (and to correspondingly reduce the commitments, if any, with respect thereto) or to the permanent repayment of other Senior Indebtedness of the Company or a Restricted Subsidiary, provided that the repayment of any Indebtedness incurred under the Credit Agreement in connection with the acquisition of any Facility with the proceeds of any subsequent Sale and Leaseback Transaction relating to such Facility shall not be required to result in the permanent reduction of the amounts outstanding under the Credit Agreement or correspondingly permanently reduce the commitments thereunder, or (2) invest (or enter into a legally binding agreement to invest) all or a portion of such Net Cash Proceeds in properties and assets to replace the properties and assets that were the subject of the Asset Sale or in properties and assets that will be used in the businesses of the Company or its Restricted Subsidiaries, as the case may be, existing on the Closing Date or in businesses the same, similar or reasonably related thereto. If any such legally binding agreement to invest such Net Cash Proceeds is terminated, the Company may, within 90 days of such termination or within 12 months of such Asset Sale, whichever is later, invest such Net Cash Proceeds as provided in clause (1) or (2) (without regard to the parenthetical contained in such clause (2)) above. Pending the final application of any such Net Cash Proceeds, the Company may temporarily reduce revolving credit borrowings or otherwise invest such Net Cash Proceeds in a manner that is not prohibited by this Agreement. The amount of such Net Cash Proceeds not so used as set forth above in this paragraph shall constitute "Excess Proceeds."
(c) When the aggregate amount of Excess Proceeds exceeds $10,000,000, the Company will, within 30 days thereafter, make an offer to purchase (an "Excess Proceeds Offer") from all Holders of Notes on a pro rata basis, in accordance with the procedures set forth in this Agreement, the maximum principal amount (expressed as a multiple of $1,000) of Notes that may be purchased with the Excess Proceeds, at a purchase price in cash equal to 100% of the principal amount thereof, plus accrued interest, if any, to the date such offer to purchase is consummated. To the extent that the aggregate principal amount of Notes tendered pursuant to such offer to purchase is less than the Excess Proceeds, the Company may use such deficiency for general corporate purposes. If the aggregate principal amount of Notes validly tendered and not withdrawn by holders thereof exceeds the Excess Proceeds, the Notes to be purchased will be selected on a pro rata basis. Upon completion of such offer to purchase, the amount of Excess Proceeds will be reset to zero.
(iii) 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 Excess Proceeds Offer. To the extent that the provisions of any securities laws or regulations conflict with the Asset Sales provisions of this Agreement, the Company will comply with the applicable securities laws and regulations and will not be deemed to have breached its obligations under Section 5(j) of this Agreement by virtue of such conflict.Equity
Appears in 2 contracts
Samples: Indenture (Echostar Broadband Corp), Indenture (Echostar Communications Corp)
Asset Sales. (i) The Company Borrower shall not, and shall not permit any Restricted Subsidiary of its Subsidiaries to, engage (i) sell, lease, convey or otherwise dispose of any assets (including by way of a sale-and-leaseback) other than sales of inventory in the ordinary course of business consistent with past practice (provided that the sale, lease, conveyance or other disposition of all or substantially all of the assets of the Borrower shall be governed by the provisions of Section 8.03 hereof and not by the provisions of this Section 8.02), or (ii) issue or sell Equity Interests of any of its Subsidiaries, in the case of either clause (i) or (ii) above, whether in a single transaction or a series of related transactions, (A) that have a fair market value in excess of $5,000,000, or (B) for net proceeds in excess of $5,000,000 (each of the foregoing, an "Asset Sale Sale"), unless (xX) the Borrower (or the Subsidiary, as the case may be) receives consideration received by at the Company or such Restricted Subsidiary for time of such Asset Sale is not less than at least equal to the fair market value of the assets sold (evidenced by a resolution of the board of directors of the General Partner (and, if applicable, the audit committee of such entity board of directors) set forth in an Officers' Certificate a certificate signed by a Responsible Officer and delivered to the Holders Agent) of the assets sold or otherwise disposed of and (yY) at least 80% of the consideration therefor received by the Company Borrower or such Subsidiary is in the relevant Restricted Subsidiary in respect form of such Asset Sale consists cash; provided, however, that the amount of at least 75% cash or Cash Equivalents (for purposes of this clause (y), cash and Cash Equivalents includes (A1) any liabilities (as reflected shown on the Borrower's or such Subsidiary's most recent balance sheet or in the Company's consolidated balance sheet) notes thereto), of the Company Borrower or any Restricted Subsidiary (other than contingent liabilities and liabilities that are by their terms subordinated in right of payment to the Notes or any GuaranteeObligations hereunder) that are assumed by any the transferee of any such assets or other property in such Asset Sale, and where the Company or the relevant Restricted Subsidiary is released from any further liability in connection therewith with respect to such liabilities, (B2) any securities, notes or other similar obligations received by the Company Borrower or any such Restricted Subsidiary from such transferee that are immediately converted within 180 days of the consummation of the related Asset Sale by the Company Borrower or such Restricted Subsidiary into cash and Cash Equivalents (to the extent of the net cash proceeds or received), shall be deemed to be cash for purposes of this provision; and provided, further, that the Cash Equivalents 80% limitation referred to in this clause (net of related costsY) received upon such conversion) and (C) shall not apply to any Designated Noncash Consideration received by the Company or any such Restricted Subsidiary in the Asset Sale having an aggregate fair market value, as determined by in which the Board of the Company, taken together with all other Designated Noncash Consideration received pursuant to this clause that is at that time outstanding, not to exceed the greater of:
(1) $10,000,000; and
(2) 15% of Consolidated Tangible Assets at the time of the receipt of such Designated Noncash Consideration (with the fair market value of each item of such Designated Noncash Consideration being measured at the time received and without giving effect to subsequent changes in value).
(ii) If the Company or any Restricted Subsidiary engages in an Asset Sale, the Company may, at its option, within 12 months after such Asset Sale, (1) apply all or a cash portion of the Net Cash Proceeds to the permanent reduction of amounts outstanding under the Credit Agreement (and to correspondingly reduce the commitmentsconsideration received therefrom, if any, with respect thereto) or to the permanent repayment of other Senior Indebtedness of the Company or a Restricted Subsidiary, provided that the repayment of any Indebtedness incurred under the Credit Agreement in connection with the acquisition of any Facility with the proceeds of any subsequent Sale and Leaseback Transaction relating to such Facility shall not be required to result in the permanent reduction of the amounts outstanding under the Credit Agreement or correspondingly permanently reduce the commitments thereunder, or (2) invest (or enter into a legally binding agreement to invest) all or a portion of such Net Cash Proceeds in properties and assets to replace the properties and assets that were the subject of the Asset Sale or in properties and assets that will be used in the businesses of the Company or its Restricted Subsidiaries, as the case may be, existing on the Closing Date or in businesses the same, similar or reasonably related thereto. If any such legally binding agreement to invest such Net Cash Proceeds is terminated, the Company may, within 90 days of such termination or within 12 months of such Asset Sale, whichever is later, invest such Net Cash Proceeds as provided in clause (1) or (2) (without regard to the parenthetical contained in such clause (2)) above. Pending the final application of any such Net Cash Proceeds, the Company may temporarily reduce revolving credit borrowings or otherwise invest such Net Cash Proceeds in a manner that is not prohibited by this Agreement. The amount of such Net Cash Proceeds not so used as set forth above in this paragraph shall constitute "Excess Proceeds."
(c) When the aggregate amount of Excess Proceeds exceeds $10,000,000, the Company will, within 30 days thereafter, make an offer to purchase (an "Excess Proceeds Offer") from all Holders of Notes on a pro rata basis, determined in accordance with the procedures set forth in this Agreementforegoing proviso, is equal to or greater than what the maximum principal amount (expressed as a multiple of $1,000) of Notes that may be purchased after-tax proceeds would have been had such Asset Sale complied with the Excess Proceedsaforementioned 80% limitation. Notwithstanding the foregoing, at a purchase price in cash equal to 100% of the principal amount thereof, plus accrued interest, if any, to the date such offer to purchase is consummated. To the extent that the aggregate principal amount of Notes tendered pursuant to such offer to purchase is less than the Excess Proceeds, the Company may use such deficiency for general corporate purposes. If the aggregate principal amount of Notes validly tendered and not withdrawn by holders thereof exceeds the Excess Proceeds, the Notes to be purchased will be selected on a pro rata basis. Upon completion of such offer to purchase, the amount of Excess Proceeds will be reset to zero.
(iii) 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 Excess Proceeds Offer. To the extent that the provisions of any securities laws or regulations conflict with the Asset Sales provisions of this Agreement, the Company will comply with the applicable securities laws and regulations and will shall not be deemed to have breached include (x) any transfer of assets by the Borrower or any of its obligations Subsidiaries to a Subsidiary of the Borrower that is a Guarantor, (y) any transfer of assets by the Borrower or any of its Subsidiaries to any Person in exchange for other assets used in a line of business permitted under Section 5(j8.15 hereof and having a fair market value not less than that of the assets so transferred and (z) any transfer of this Agreement by virtue of such conflictassets pursuant to a Permitted Investment.
Appears in 2 contracts
Samples: Credit Agreement (Ferrellgas Finance Corp), Credit Agreement (Ferrellgas Partners Finance Corp)
Asset Sales. (ia) The Company Issuer shall not, and shall not permit any of the Restricted Subsidiary Subsidiaries to, engage in any cause or make an Asset Sale Sale, unless (x) the Issuer or any Restricted Subsidiary, as the case may be, receives consideration received by at the Company or such Restricted Subsidiary for time of such Asset Sale is not less than at least equal to the fair market value Fair Market Value of the assets sold evidenced by a resolution of the board of directors of such entity set forth in an Officers' Certificate delivered to the Holders or otherwise disposed of, and (y) the consideration received by the Company or the relevant Restricted Subsidiary in respect of such Asset Sale consists of at least 75% cash of the consideration therefor received by the Issuer or such Restricted Subsidiary, as the case may be, is in the form of Cash Equivalents Equivalents; provided that the amount of:
(for purposes of this clause (y), cash and Cash Equivalents includes (Ai) any liabilities (as reflected shown on the Issuer’s or a Restricted Subsidiary’s most recent balance sheet or in the Company's consolidated balance sheetnotes thereto) of the Company Issuer or any a Restricted Subsidiary (other than contingent liabilities and liabilities that are by their terms contractually subordinated to the Notes Securities or any Guarantee) that are assumed by any the transferee of any such assets or other property in such Asset Sale, and where the Company that are otherwise cancelled or the relevant Restricted Subsidiary is released from any further liability terminated in connection therewith with respect to the transaction with such liabilities, transferee,
(Bii) any securities, notes or other similar obligations or other securities or assets received by the Company Issuer or any such Restricted Subsidiary from such transferee that are converted within 180 days of the consummation of the related Asset Sale by the Company Issuer or such Restricted Subsidiary into cash and Cash Equivalents within 180 days of the receipt thereof (to the extent of the net cash proceeds or the Cash Equivalents received), and
(net of related costs) received upon such conversion) and (Ciii) any Designated Noncash Non-cash Consideration received by the Company Issuer or any such Restricted Subsidiary in the such Asset Sale having an aggregate fair market value, as determined by the Board of the CompanyFair Market Value, taken together with all other Designated Noncash Non-cash Consideration received pursuant to this clause (iii) that is at that time outstanding, not to exceed the greater of:
(1) $10,000,000; and
(2) 15of 2.5% of Consolidated Tangible Total Assets at the time of the receipt of such Designated Noncash Consideration and $30.0 million (with the fair market value Fair Market Value of each item of such Designated Noncash Non-cash Consideration being measured at the time received and without giving effect to subsequent changes in value), shall be deemed to be Cash Equivalents for the purposes of this Section 4.06(a).
(iib) If Other than in the Company case of Available Designated Sale/Leaseback Proceeds, within 12 months after the Issuer’s or any Restricted Subsidiary’s receipt of the Net Proceeds of any Asset Sale (or, in the case of clause (ii) below, if committed to be made within such 12-month period, made within 18 months of receipt thereof), the Issuer or such Restricted Subsidiary engages in an may apply the Net Proceeds from such Asset Sale, at its option in either of the Company mayapplications specified in clauses (i) or (ii) below (in any combination) or, at its option, within 12 months after the Issuer or such Restricted Subsidiary may instead elect to conduct an Asset SaleSale Offer, as and when required as described in the second succeeding paragraph below:
(1i) apply all or a portion of to repay (a) Indebtedness constituting First-Priority Lien Obligations (and, if the Net Cash Proceeds to the permanent reduction of amounts outstanding under the Credit Agreement (and Indebtedness repaid is revolving credit Indebtedness, to correspondingly reduce the commitments, if any, commitments with respect thereto), (b) or to the permanent repayment of other Senior Indebtedness of the Company or a Restricted SubsidiarySubsidiary that is not a Guarantor, provided that the repayment of any Indebtedness incurred (c) Obligations under the Credit Agreement in connection with the acquisition of any Facility with the proceeds of any subsequent Sale and Leaseback Transaction relating to such Facility shall not be required to result in the permanent reduction of the amounts outstanding under the Credit Agreement or correspondingly permanently reduce the commitments thereunder, or (2) invest (or enter into a legally binding agreement to invest) all or a portion of such Net Cash Proceeds in properties and assets to replace the properties and assets that were the subject of the Asset Sale or in properties and assets that will be used in the businesses of the Company or its Restricted Subsidiaries, as the case may be, existing on the Closing Date or in businesses the same, similar or reasonably related thereto. If any such legally binding agreement to invest such Net Cash Proceeds is terminated, the Company may, within 90 days of such termination or within 12 months of such Asset Sale, whichever is later, invest such Net Cash Proceeds Securities as provided in clause Section 3.01 or (1d) other 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 will equally and ratably reduce Obligations under the Securities as provided in Section 3.01, through open-market purchases (provided that such purchases are at or above 100% of the principal amount thereof) or (2) (without regard to the parenthetical contained in such clause (2)) above. Pending the final application of any such Net Cash Proceeds, the Company may temporarily reduce revolving credit borrowings or otherwise invest such Net Cash Proceeds in a manner that is not prohibited by this Agreement. The amount of such Net Cash Proceeds not so used as set forth above in this paragraph shall constitute "Excess Proceeds."
(c) When the aggregate amount of Excess Proceeds exceeds $10,000,000, the Company will, within 30 days thereafter, make making an offer to purchase (an "Excess Proceeds Offer") from all Holders of Notes on a pro rata basis, in accordance with the procedures set forth in this Agreement, the maximum principal amount (expressed as a multiple of $1,000below for an Asset Sale Offer) of Notes that may be purchased with the Excess Proceeds, to all Holders to purchase at a purchase price in cash equal to 100% of the principal amount thereof, plus accrued interestand unpaid interest and Additional Interest, if any, the pro rata principal amount of Securities), in each case other than Indebtedness owed to the Issuer or an Affiliate of the Issuer; or
(ii) to (a) make an investment in any one or more businesses (provided that if such investment is in the form of the acquisition of Capital Stock of a Person, such acquisition results in such Person becoming a Restricted Subsidiary of the Issuer), assets, or property or capital expenditures, in each case (i) used or useful in a Similar Business or (ii) that replace the properties and assets that are the subject of such Asset Sale; provided that, with respect to Net Proceeds from an Asset Sale that constituted a Permitted Sale/Leaseback Transaction, such Net Proceeds may not be applied for any Business Acquisition pursuant to this subclause (a) other than the acquisition of restaurants or equipment for the Carl’s Jr. or Hardee’s system or (b) from and after the date on which at least $100.0 million in aggregate amount of Net Proceeds have been applied to repay Indebtedness pursuant to clause (1) above or pursuant to an Asset Sale Offer (provided that all Net Proceeds used to make an Asset Sale Offer shall be deemed to have been so applied whether or not accepted by the Holders) as described in the succeeding paragraph, retain and utilize not more than $50.0 million in the aggregate in Net Proceeds for any purpose not prohibited under this Indenture. Pending the final application of any such Net Proceeds, the Issuer or such Restricted Subsidiary may temporarily reduce Indebtedness under a revolving credit facility, if any, or otherwise invest such Net Proceeds in Cash Equivalents or Investment Grade Securities. Any Net Proceeds from any Asset Sale (other than Available Designated Sale/Leaseback Proceeds until such time as they constitute Net Proceeds) that are not 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 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) will 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 (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 in excess thereof that may be purchased out of the Excess Proceeds at an offer price in cash in an amount equal to 100% of the principal amount thereof (or, in the event such Pari Passu Indebtedness was issued with significant original issue discount, 100% of the accreted value thereof), plus accrued and unpaid interest and Additional Interest, if any (or, in respect of such Pari Passu Indebtedness, such lesser price, if any, as may be provided for by the terms of such Pari Passu Indebtedness), to the date fixed for the closing of such offer offer, in accordance with the procedures set forth in this Section 4.06. The Issuer will commence an Asset Sale Offer with respect to purchase Excess Proceeds within thirty (30) Business Days after the date that Excess Proceeds exceeds $30.0 million by mailing the notice required pursuant to the terms of Section 4.06(h), with a copy to the Trustee; provided, however, that the Issuer may defer the commencement of any Asset Sale Offer if at the time a Designated Sale/Leaseback Offer is consummatedthen pending or required to be made until the completion of such Designated Sale/Leaseback Offer. To the extent that the aggregate principal amount of Notes Securities (and such Pari Passu Indebtedness) tendered pursuant to such offer to purchase an Asset Sale Offer is less than the Excess Proceeds, the Company Issuer may use such deficiency any remaining Excess Proceeds for general corporate purposespurposes that are not prohibited by this Indenture. If the aggregate principal amount of Notes validly tendered Securities (and not withdrawn such Pari Passu Indebtedness) surrendered by holders thereof exceeds the amount of Excess Proceeds, the Notes Trustee shall select the Securities to be purchased will be selected on a pro rata basisin the manner described in Section 4.06(g). Upon completion of any such offer to purchaseAsset Sale Offer, the amount of Excess Proceeds will shall be reset to at zero.
(iiic) When the aggregate amount of Available Designated Sale/Leaseback Proceeds exceeds $30.0 million, the Issuer shall make an offer to all Holders (and, at the option of the Issuer, to holders of any Other Second-Lien Obligations) (a “Designated Sale/Leaseback Offer”) to purchase the maximum principal amount of Securities (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 Available Designated Sale/Leaseback Proceeds at an offer price in cash in an amount equal to 103% of the principal amount thereof (or, in the event such Other Second-Lien Obligation was issued with significant original issue discount, 103% of the accreted value thereof), plus accrued and unpaid interest and Additional Interest, if any (or, in respect of such Other Second-Lien Obligations, such lesser price, if any, as may be provided by the terms of such Other Second-Lien Obligations), to the date fixed for the closing of such offer, in accordance with the procedures set forth in this Indenture. The Issuer will commence a Designated Sale/Leaseback Offer with respect to Available Designated Sale/Leaseback Proceeds within sixty (60) days after the date that Available Designated Sale/Leaseback Proceeds exceeds $30.0 million by mailing the notice required pursuant to the terms of Section 4.06(h), with a copy to the Trustee. If the aggregate principal amount of Securities (and such Other Second-Lien Obligations) surrendered by holders thereof exceeds the amount of Available Designated Sale/Leaseback Proceeds, the Trustee shall select the Securities to be purchased in the manner described below. Upon completion of any such Designated Sale/Leaseback Offer, the amount of Available Designated Sale/Leaseback Proceeds shall be reset at zero; provided, however that to the extent that the aggregate amount of Securities (and such Other Second-Lien Obligations) tendered pursuant to a Designated Sale/Leaseback Offer is less than the Available Designated Sale/Leaseback Proceeds, the remaining Available Designated Sale/Leaseback Proceeds shall as of the date of completion of such Designated Sale/Leaseback Offer, cease to constitute Available Designated Sale/Leaseback Proceeds but shall instead as of such date constitute Net Proceeds of an Asset Sale (which Asset Sale shall be deemed to have been consummated on the date such Designated Sale/Leaseback Offer expired) and shall be subject to Section 4.06(b). Pending the final application of any such Available Designated Sale/Leaseback Proceeds, the Issuer or such Restricted Subsidiary may temporarily reduce Indebtedness under a revolving credit facility, if any, or otherwise invest such Available Designated Sale/Leaseback Proceeds in Cash Equivalents or Investment Grade Securities.
(d) The Company will 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 and or regulations are applicable in connection with each the repurchase of Notes the Securities pursuant to an Excess Proceeds Asset Sale Offer or a Designated Sale/Leaseback Offer. To the extent that the provisions of any securities laws or regulations conflict with the Asset Sales provisions of this AgreementIndenture, the Company will Issuer shall comply with the applicable securities laws and regulations and will shall not be deemed to have breached its obligations under described in this Indenture by virtue thereof.
(e) Not later than the date upon which written notice of an Asset Sale Offer or Designated Sale/Leaseback Offer, as the case may be, is delivered to the Trustee as provided above, the Issuer shall deliver to the Trustee an Officer’s Certificate as to (i) the amount of the Excess Proceeds or Available Designated Sale/Leaseback Proceeds, as the case may be, (ii) the allocation of the Net Proceeds from the Asset Sales pursuant to which such Asset Sale Offer is being made or of the Available Designated Sale/Leaseback Proceeds from the Sale/Leasebacks pursuant to which such Designated Sale/Leaseback Offer is being made, and (iii) the compliance of such allocation with the provisions of Section 5(j4.06(b) (in the case of an Asset Sale Offer) or of Section 4.06(c) (in the case of a Designated Sale/Leaseback Offer). 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 or Available Designated Sale/Leaseback Proceeds, as the case may be, 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 Agreement Section 4.06. Upon the expiration of the period for which the Asset Sale Offer or Designated Sale/Leaseback 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 virtue 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 or Available Designated Sale/Leaseback 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 promptly after the expiration of the Offer Period for application in accordance with Section 4.06.
(f) 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(h) 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 Xxxxxx is withdrawing his election to have such Security purchased.
(g) If more Securities (and in the case of an Asset Sale Offer, such Pari Passu Indebtedness, and in the case of a Designated Sale/Leaseback Offer, such Other Second-Lien Obligations are tendered pursuant to an Asset Sale Offer or a Designated Sale/Leaseback Offer than the Issuer is required to purchase, selection of such conflictSecurities for purchase shall be made by the Trustee in compliance with the requirements of the principal national securities exchange, if any, on which the Securities are listed, or if the Securities are not so listed, on a pro rata basis, by lot or by such other method as the Trustee shall deem fair and appropriate (and in such manner as complies with applicable legal requirements); provided that no Securities of $2,000 or less shall be purchased in part. Selection of such Pari Passu Indebtedness or Other Second-Lien Obligations, as the case may be, shall be made pursuant to the terms of such Pari Passu Indebtedness or Other Second Lien Obligations.
(h) Notices of an Asset Sale Offer or a Designated Sale/Leaseback Offer shall be mailed by first-class mail, postage prepaid, at least 30 but not more than 60 days before the purchase date to each Holder at such Holder’s registered address. If any Security is to be purchased in part only, any notice of purchase that relates to such Security shall state the portion of the principal amount thereof that has been or is to be purchased.
Appears in 2 contracts
Samples: Indenture (Aeroways, LLC), Indenture (Cke Restaurants Inc)
Asset Sales. (i) The Company shall not, and shall not permit any of its Restricted Subsidiary Subsidiaries to: (i) sell, engage lease, convey or otherwise dispose of any assets (including, without limitation, by way of a sale and leaseback) other than sales of inventory and leases (or subleases) of restaurant facilities and related equipment to franchisees, in each case, in the ordinary course of business consistent with past practices (PROVIDED that the sale, lease, conveyance or other disposition of all or substantially all of the assets of the Company and its Subsidiaries shall be governed by the provisions of Sections 4.14 and 5.01 hereof), or (ii) issue or sell Equity Interests of any Asset Sale of its Subsidiaries, in the case of either clause (i) or (ii), whether in a single transaction or a series of related transactions, (a) that have a fair market value in excess of $1 million or (b) for net proceeds in excess of $1 million (each of the foregoing, an "ASSET SALE"), unless (x) the Company (or the Restricted Subsidiary, as the case may be) receives consideration received by at the Company or such Restricted Subsidiary for time of such Asset Sale is not less than at least equal to the fair market value of the assets sold (evidenced by a resolution of the board Board of directors of such entity Directors set forth in an Officers' Certificate delivered to the Holders Trustee) of the assets or Equity Interests issued or sold or otherwise disposed of and (y) except in the case of a Permitted Non-Cash Transaction, at least 75% of the consideration received therefor by the Company or the relevant such Restricted Subsidiary is in respect the form of such Asset Sale consists cash; PROVIDED, that the amount of at least 75% cash or Cash Equivalents (for purposes of this clause (y), cash and Cash Equivalents includes (A) any liabilities (as reflected in shown on the Company's consolidated or such Restricted Subsidiary's most recent balance sheet) ), of the Company or any Restricted Subsidiary (other than contingent liabilities and liabilities that are by their terms subordinated to the Notes or any Guaranteeguarantee thereof) that are assumed by any the transferee of any such assets or other property in such Asset Sale, and where pursuant to a customary novation agreement that releases the Company or the relevant such Restricted Subsidiary is released from any further liability in connection therewith with respect to such liabilities, and (B) any securities, notes or other similar obligations received by the Company or any such Restricted Subsidiary from such transferee that are contemporaneously (subject to ordinary settlement periods) converted within 180 days of the consummation of the related Asset Sale by the Company or such Restricted Subsidiary into cash and Cash Equivalents (to the extent of the net cash proceeds or the Cash Equivalents (net received), shall be deemed to be cash for purposes of related costs) received upon such conversion) and (C) any Designated Noncash Consideration received this provision. A transfer of assets by the Company or any such to a Wholly-Owned Restricted Subsidiary in or by a Wholly-Owned Restricted Subsidiary to the Company or to another Wholly-Owned Restricted Subsidiary, and an issuance of Equity Interests by a Wholly-Owned Restricted Subsidiary to the Company or to another Wholly-Owned Restricted Subsidiary, shall not be deemed to be an Asset Sale having an aggregate fair market value, as determined by the Board of the Company, taken together with all other Designated Noncash Consideration received pursuant to this clause Sale. Any Restricted Payment that is at that time outstanding, permitted by Section 4.07 hereof will not be deemed to exceed the greater of:
(1) $10,000,000; and
(2) 15% of Consolidated Tangible Assets at the time of be an Asset Sale. Within 360 days after the receipt of such Designated Noncash Consideration (with the fair market value of each item of such Designated Noncash Consideration being measured at the time received and without giving effect to subsequent changes in value).
(ii) If the Company or any Restricted Subsidiary engages in Net Proceeds from an Asset Sale, the Company may, at its option, within 12 months after may apply such Asset Sale, Net Proceeds (1a) apply all or a portion of the Net Cash Proceeds to the permanent reduction of amounts outstanding permanently reduce Indebtedness under the New Credit Agreement Facility (and to correspondingly reduce the commitments, if any, commitments with respect thereto), or (b) or to the permanent repayment of other Senior Indebtedness of the Company or a Restricted Subsidiary, provided that the repayment of any Indebtedness incurred under the Credit Agreement in connection with the acquisition of any Facility with the proceeds of any subsequent Sale and Leaseback Transaction relating to such Facility shall not be required to result in the permanent reduction a majority of the amounts outstanding under the Credit Agreement or correspondingly permanently reduce the commitments thereunderassets of, or (2) invest (or enter into a legally binding agreement to invest) all or a portion of such Net Cash Proceeds in properties and assets to replace the properties and assets that were the subject majority of the Asset Sale or in properties and assets that will be used in the businesses of the Company or its Restricted Subsidiariesvoting Capital Interests of, as the case may be, existing on the Closing Date or in businesses the same, similar or reasonably related thereto. If any such legally binding agreement to invest such Net Cash Proceeds is terminatedanother Permitted Business, the Company maymaking of a capital expenditure or the acquisition of other tangible long-term assets, within 90 days of such termination in each case, that are used or within 12 months of such Asset Sale, whichever is later, invest such Net Cash Proceeds as provided useful in clause (1) or (2) (without regard to the parenthetical contained in such clause (2)) abovea Permitted Business. Pending the final application of any such Net Cash Proceeds, the Company may temporarily reduce revolving credit borrowings or otherwise invest such Net Cash Proceeds in a any manner that is not prohibited by this AgreementIndenture. The amount Any Net Proceeds from such Asset Sale that are not finally applied or invested as provided in the first sentence of such Net Cash Proceeds not so used as set forth above in this paragraph shall will be deemed to constitute "Excess ProceedsEXCESS PROCEEDS."
(c) When " Within ten days of each date on which the aggregate amount of Excess Proceeds exceeds $10,000,0005 million, the Company will, within 30 days thereafter, make an offer Issuers shall commence a PRO RATA Asset Sale Offer pursuant to Section 3.09 hereof to purchase (an "Excess Proceeds Offer") from all Holders of Notes on a pro rata basis, in accordance with the procedures set forth in this Agreement, the maximum principal amount (expressed as a multiple of $1,000) of Notes that may be purchased with out of the Excess Proceeds, Proceeds at a purchase an offer price in cash in an amount equal to 100% of the principal amount thereof, thereof on the date fixed for the closing of such offer plus accrued interestand unpaid interest and Liquidated Damages thereon, if any, to the date such offer to purchase is consummated. To the extent that the aggregate principal amount of Notes tendered pursuant to such offer to purchase an Asset Sale Offer is less than the Excess Proceeds, the Company may use such deficiency for general corporate purposes. If any purpose not otherwise prohibited by the aggregate principal amount of Notes validly tendered and not withdrawn by holders thereof exceeds the Excess Proceeds, the Notes to be purchased will be selected on a pro rata basisIndenture. Upon completion of such offer to purchase, the amount of Excess Proceeds will be deemed to be reset to at zero.
(iii) 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 Excess Proceeds Offer. To the extent that the provisions of any securities laws or regulations conflict with the Asset Sales provisions of this Agreement, the Company will comply with the applicable securities laws and regulations and will not be deemed to have breached its obligations under Section 5(j) of this Agreement by virtue of such conflict.
Appears in 2 contracts
Samples: Indenture (Perkins Finance Corp), Indenture (Restaurant Co)
Asset Sales. (ia) The Company shall will not, and shall will not permit any of the Company’s Restricted Subsidiary Subsidiaries to, engage in any consummate an Asset Sale unless unless:
(x1) the Company (or the Restricted Subsidiary, as the case may be) receives consideration (including by way of relief from, or by any other Person assuming responsibility for, any liabilities, contingent or otherwise) at the time of the Asset Sale at least equal to the Fair Market Value (measured as of the date of the definitive agreement with respect to such Asset Sale) of the assets or Equity Interests issued or sold or otherwise disposed of; and
(2) except in the case of a Permitted Asset Swap, at least 75% of the consideration received in the Asset Sale by the Company or such Restricted Subsidiary for such Asset Sale is not less than in the fair market value form of the assets sold evidenced by a resolution of the board of directors of such entity set forth in an Officers' Certificate delivered to the Holders and (y) the consideration received by the Company or the relevant Restricted Subsidiary in respect of such Asset Sale consists of at least 75% cash or Cash Equivalents (for Equivalents. For purposes of this clause (y)provision, cash and Cash Equivalents includes each of the following will be deemed to be cash:
(A) any liabilities (liabilities, as reflected in shown on the Company's ’s most recent consolidated balance sheet) sheet or the notes thereto, of the Company or any Restricted Subsidiary of the Company (other than contingent liabilities and liabilities that are by their terms subordinated to the Notes or any Note Guarantee) that are assumed by any the transferee of any such assets pursuant to a novation or other property in such Asset Sale, and where indemnity agreement that releases the Company or the relevant such Restricted Subsidiary is released from any or indemnifies against further liability in connection therewith with respect to such liabilities, liability;
(B) any securities, notes or other similar obligations received by the Company or any such Restricted Subsidiary of the Company from such transferee that are converted are, within 180 days of the consummation of the related Asset Sale days, converted by the Company or such Restricted Subsidiary into cash and or Cash Equivalents (Equivalents, to the extent of the net cash proceeds or the Cash Equivalents (net of related costs) received upon such in that conversion) and ;
(C) any Designated Noncash Non-cash Consideration received by the Company or any of its Restricted Subsidiaries in such Restricted Subsidiary in the Asset Sale having an aggregate fair market value, as determined by the Board of the CompanyFair Market Value, taken together with all other Designated Noncash Non-cash Consideration received pursuant to this clause (C) that is at that time outstanding, not to exceed the greater of:
of (1x) $10,000,000; and
200.0 million and (2y) 153.0% of Consolidated Tangible Total Assets at the time of the receipt of such Designated Noncash Non-cash Consideration (with the fair market value Fair Market Value of each item of such Designated Noncash Non-cash Consideration being measured at the time received and without giving effect to subsequent changes in value).;
(iiD) If consideration consisting of Indebtedness of the Company or any Restricted Subsidiary engages in an Asset Sale, of the Company may, at its option, within 12 months after that is not subordinated Indebtedness; and
(E) Indebtedness of any Restricted Subsidiary that is no longer a Restricted Subsidiary as a result of such Asset Sale, (1) apply all or a portion of the Net Cash Proceeds to the permanent reduction of amounts outstanding under extent that the Credit Agreement (Company and to correspondingly reduce the commitments, if any, each other Restricted Subsidiary are released from any payment obligations with respect thereto) to such Indebtedness or to the permanent repayment any Guarantee of other Senior payment of such Indebtedness of the Company or a Restricted Subsidiary, provided that the repayment of any Indebtedness incurred under the Credit Agreement in connection with such Asset Sale.
(b) Within 365 days from the acquisition later of (A) the date of such Asset Sale and (B) the receipt of any Facility with Net Proceeds from an Asset Sale (as may be extended by an Acceptable Commitment as set forth below, the proceeds of any subsequent Sale and Leaseback Transaction relating to such Facility shall not be required to result in “Proceeds Application Period”), the permanent reduction of the amounts outstanding under the Credit Agreement or correspondingly permanently reduce the commitments thereunder, or (2) invest Company (or enter into a legally binding agreement to invest) all or a portion of such Net Cash Proceeds in properties and assets to replace the properties and assets that were the subject of the Asset Sale or in properties and assets that will be used in the businesses of the Company or its applicable Restricted SubsidiariesSubsidiary, as the case may be, existing on the Closing Date or in businesses the same, similar or reasonably related thereto. If any such legally binding agreement to invest ) may apply such Net Cash Proceeds is terminated, the Company may, within 90 days of such termination or within 12 months of such Asset Sale, whichever is later, invest such Net Cash Proceeds as provided in clause Proceeds:
(1) to reduce, prepay, repay or purchase Indebtedness and other Obligations under or pursuant to a Credit Facility or any Secured Indebtedness (unless the Notes are then secured by a priority or pari passu lien) of the Company or any Restricted Subsidiary and, if the Indebtedness repaid is revolving credit Indebtedness, to correspondingly reduce commitments with respect thereto;
(2) (without regard to the parenthetical contained in such clause (2)) above. Pending the final application reduce Indebtedness and other Obligations of any such Net Cash Proceeds, the Company may temporarily reduce revolving credit borrowings or otherwise invest such Net Cash Proceeds in a manner Restricted Subsidiary that is not prohibited by this Agreement. The amount a Guarantor (other than Indebtedness owed to the Company or a Restricted Subsidiary of such Net Cash Proceeds not so used as set forth above in this paragraph shall constitute "Excess Proceeds."the Company);
(c3) When the aggregate amount to repay (i) Indebtedness or other Obligations of Excess Proceeds exceeds $10,000,000, the Company willthat rank pari passu with the Notes or (ii) Indebtedness and other Obligations of a Guarantor that rank pari passu with such Guarantor’s Note Guarantee (other than Indebtedness owed to the Company or a Restricted Subsidiary of the Company); provided that the Company shall equally and ratably redeem or repurchase the Notes pursuant to Section 3.07 hereof, within 30 days thereafter, make or by making an offer to purchase (an "Excess Proceeds Offer") from all Holders of Notes on a pro rata basis, in accordance with the procedures set forth in this Agreement, below for an Asset Sale Offer) to all Holders to purchase the maximum principal amount (expressed as a multiple of $1,000) of Notes that may be purchased with the Excess Proceeds, at a purchase price in cash equal to 100% of the principal amount thereof, plus accrued and unpaid interest, if any, to but not including the date of repayment;
(4) 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 offer acquisition of Capital Stock, the Permitted Business is or becomes a Restricted Subsidiary of the Company;
(5) to purchase make a capital expenditure;
(6) to acquire other assets that are not classified as current assets under GAAP and that are used or useful in a Permitted Business;
(7) to acquire Capital Stock constituting a minority interest in any Person that at such time is consummateda Restricted Subsidiary;
(8) to invest (including capital expenditures) in any one or more businesses, properties or assets (other than current assets) that replace the businesses, properties and/or assets that are the subject of such Asset Sale; or
(9) any combination of the foregoing. To The Company will be deemed to have complied with the extent provisions set forth in clause (4), (5), (6), (7) and (8) of this Section 4.10(b) if within 365 days after the Asset Sale that generated the aggregate Net Proceeds, the Company (or the applicable Restricted Subsidiary) has entered into and not abandoned or rejected a binding agreement to consummate the transaction described therein and such transaction is thereafter completed within 180 days after the end of such 365-day period (an “Acceptable Commitment”). Pending the final application of any Net Proceeds, the Company (or the applicable Restricted Subsidiary) may temporarily reduce Indebtedness (including under the Credit Facilities) or otherwise invest the Net Proceeds in any manner that is not prohibited by this Indenture. The Company (or any Restricted Subsidiary, as the case may be) may elect to invest in the assets and/or Capital Stock, as the case may be, described in clauses (4), (5), (6), (7) and (8) of this Section 4.10(b) 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 any of clauses (4), (5), (6), (7) and (8) of this Section 4.10(b) with respect to such Asset Sale.
(c) If, with respect to any Asset Sale, at the expiration of the Proceeds Application Period with respect to such Asset Sale, there remains Net Proceeds in excess of $50.0 million (such amount of Net Proceeds that is in excess of $50.0 million, the “Excess Proceeds”), then within 30 days after the expiration of the Proceeds Application Period, the Company will make an Asset Sale Offer to all Holders of Notes and, if required by its terms, all holders of Indebtedness of the Company that ranks pari passu with the Notes to purchase, prepay or redeem on a pro rata basis the maximum principal amount (or accreted value, if applicable) of Notes tendered pursuant to and such offer to purchase is less than other pari passu Indebtedness (plus all accrued interest on the Indebtedness and the amount of all fees and expenses, including premiums, incurred in connection therewith) that may be purchased, prepaid or redeemed out of the Excess Proceeds. The offer price for the Notes in any Asset Sale Offer will be equal to 100% of the principal amount, plus accrued and unpaid interest, if any, to but not including the date of purchase, prepayment or redemption, subject to the rights of Holders of Notes on a relevant record date to receive interest due on an interest payment date occurring on or prior to the Purchase Date, and will be payable in cash. The Company may satisfy the foregoing obligation with respect to the Net Proceeds by making an Asset Sale Offer prior to the expiration of the Proceeds Application Period (the “Advance Offer”) with respect to all or a part of the Net Proceeds (the “Advance Portion”) in advance of being required to do so by this Indenture. If any Excess Proceeds remain after consummation of an Asset Sale Offer (or, in the case of an Advance Offer, the Advance Portion) (“Declined Excess Proceeds”), the Company may use such deficiency Declined Excess Proceeds for general corporate purposesany purpose not otherwise prohibited by this Indenture. If the aggregate principal amount of Notes validly and other pari passu Indebtedness tendered and not withdrawn by holders thereof in (or required to be prepaid or redeemed in connection with) such Asset Sale Offer exceeds the amount of Excess ProceedsProceeds (or, in the case of an Advance Offer, the Advance Portion), the Company will select the Notes and such other pari passu Indebtedness to be purchased on a pro rata basis, based on the amounts tendered or required to be prepaid or redeemed, and thereafter the Trustee will select the Notes to be purchased will be selected on a pro rata basisbasis based on the amount tendered (with, in each case, such adjustments as may be deemed appropriate by the Company or the Trustee, as applicable, so that only Notes in denominations of $1,000, or an integral multiple of $1,000 in excess thereof, will be purchased, provided that any unpurchased portion of a Note must be in a minimum denomination of $2,000). Upon completion of such offer to purchaseeach Asset Sale Offer, the amount of Excess Proceeds will be reset to at zero. To the extent that any portion of Net Proceeds payable in respect of the notes is denominated in a currency other than U.S. dollars, the amount thereof payable in respect of the Notes shall not exceed the net amount of funds in U.S. dollars that is actually received by the Company upon converting such portion into U.S. dollars.
(iiid) The Company will comply with the requirements of Rule 14e-1 under the Exchange Act and any other securities laws and regulations thereunder to the extent such those laws and regulations are applicable in connection with each repurchase of Notes pursuant to an Excess Proceeds Asset Sale Offer. To the extent that the provisions of any securities laws or regulations conflict with the Asset Sales provisions of Section 3.09 hereof or this AgreementSection 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 5(j) of 3.09 hereof or this Agreement Section 4.10 by virtue of such conflictcompliance.
Appears in 2 contracts
Samples: Indenture (Acadia Healthcare Company, Inc.), Indenture (Acadia Healthcare Company, Inc.)
Asset Sales. (ia) The Company shall will not, and shall will not permit any of its Restricted Subsidiary Subsidiaries to, engage in any consummate an Asset Sale unless unless:
(x1) the Company (or a Restricted Subsidiary, as the case may be) receives consideration received by at the Company or such Restricted Subsidiary for such time of the Asset Sale is not less than at least equal to the fair market value (measured as of the date of the definitive agreement with respect to such Asset Sale) of the assets or Equity Interests issued or sold or otherwise disposed of;
(2) the fair market value is determined by the Board of Directors of the Company if the value is $35.0 million or more and evidenced by a resolution of the board Board of directors Directors; and
(3) at least 75% of such entity set forth in an Officers' Certificate delivered to the Holders and (y) the aggregate consideration received by the Company or and its Restricted Subsidiaries in the relevant Restricted Subsidiary in respect of such Asset Sale consists is in the form of at least 75% cash or cash, Cash Equivalents (for or Replacement Assets. For purposes of this clause (y3), cash and Cash Equivalents includes each of the following will be deemed to be cash:
(Aa) any liabilities (as reflected shown on the Company’s or any Restricted Subsidiary’s most recent balance sheet or in the Company's consolidated footnotes thereto, or as would be shown on such balance sheet or footnotes if such liability was incurred subsequent to the date of such balance sheet) ), of the Company or any Restricted such Subsidiary (other than contingent liabilities and liabilities that are by their terms contractually subordinated in right of payment to the Notes or any Subsidiary Guarantee) that are assumed by any the transferee of any such assets or other property in such Asset Sale, and where pursuant to an agreement that releases the Company or the relevant Restricted such Subsidiary is from further liability, or that are otherwise released from any further liability in connection therewith with respect to such liabilities, or assumed;
(Bb) any securities, notes or other similar obligations received by the Company or any such Restricted Subsidiary from such transferee that are are, within 210 days after the Asset Sale, converted within 180 days of the consummation of the related Asset Sale by the Company or such Restricted Subsidiary into cash and or Cash Equivalents (Equivalents, to the extent of the net cash proceeds or the Cash Equivalents received in that conversion; and
(net of related costs) received upon such conversion) and (Cc) any Designated Noncash Non-Cash Consideration received by the Company or any such Restricted Subsidiary in the such Asset Sale having an aggregate fair market value, as determined by the Board of the Company, taken together with all other Designated Noncash Non-Cash Consideration received pursuant to this clause (c) that is at that the time outstanding, not to exceed the greater of:
of (1x) $10,000,000; and
25.0 million and (2y) 153.0% of the Company’s Consolidated Net Tangible Assets at the time as of the receipt date of the definitive agreement with respect to such Designated Noncash Consideration (Asset Sale, with the fair market value of each item of such Designated Noncash Non-Cash Consideration being measured at as of the time received date of the definitive agreement with respect to such Asset Sale and without giving effect to subsequent changes in value); and
(4) the Net Proceeds from any such Asset Sale of 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.
(iib) If Notwithstanding anything to the contrary in Section 4.10(a) hereof, 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)(4) hereof except to the extent the aggregate Net Proceeds from all Asset Sales of Collateral that (x) are not held in a Collateral Account and (y) have not been previously applied in accordance with the provisions of the following paragraphs relating to the application of Net Proceeds from Asset Sales of Collateral, exceed $25.0 million.
(c) Subject to the terms of the Collateral Trust and Intercreditor Agreement, the Company or any Restricted Subsidiary engages in an Asset Sale, the Company may, at its option, within 12 months after such Asset Sale, (1) apply all or a portion of the Net Cash Proceeds to the permanent reduction of amounts outstanding under the Credit Agreement (and to correspondingly reduce the commitments, if any, with respect thereto) or to the permanent repayment of other Senior Indebtedness of the Company or a Restricted Subsidiary, provided that the repayment of any Indebtedness incurred under the Credit Agreement in connection with the acquisition of any Facility with the proceeds of any subsequent Sale and Leaseback Transaction relating to such Facility shall not be required to result in the permanent reduction of the amounts outstanding under the Credit Agreement or correspondingly permanently reduce the commitments thereunder, or (2) invest (or enter into a legally binding agreement to invest) all or a portion of such Net Cash Proceeds in properties and assets to replace the properties and assets that were the subject of the Asset Sale or in properties and assets that will be used in the businesses of the Company or its Restricted SubsidiariesGuarantor, as the case may be, existing on may invest any Net Proceeds received from Asset Sales of Collateral, and may withdraw Net Proceeds from the Closing Date or Collateral Account to invest, in businesses Replacement Assets that would constitute (x) Collateral in the same, similar or reasonably related thereto. If any such legally binding agreement to invest such Net Cash Proceeds is terminated, case of an Asset Sale of Collateral and (y) ABL Collateral in the Company maycase of an Asset Sale of ABL Collateral, within 90 365 days of such termination or within 12 months the date of such Asset Sale, whichever is laterwhich Replacement Assets are thereupon with their acquisition added to the Collateral securing the Notes.
(d) Within 365 days after the receipt of any Net Proceeds from an Asset Sale other than an Asset Sale of Collateral, invest the Company or any Restricted Subsidiary may apply such Net Cash Proceeds as provided in clause at its option to any combination of the following:
(1) to repay, redeem, repurchase or otherwise retire any ABL Debt, any Pari Passu Indebtedness or the Notes (or any combination thereof), and, to the extent there is no such secured Indebtedness outstanding, to repay, redeem, repurchase or otherwise retire Senior Debt of the Company or any of its Subsidiaries, including the Notes;
(2) to acquire all or substantially all of the properties or assets of a Person primarily engaged in a Permitted Business if, after giving effect to such acquisition, such Person is or becomes a Restricted Subsidiary of the Company;
(without regard 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 parenthetical contained Company;
(4) to make capital expenditures in such 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) aboveor (5) of this Section 4.10(d) shall be deemed to be satisfied if a bona fide binding contract committing to make the acquisition, purchase, Investment or expenditure referred to therein is entered into by the Company (or any of its Restricted Subsidiaries with a Person other than an Affiliate of the Company) within the time period specified in this Section 4.10(d) and such Net Proceeds are subsequently applied in accordance with such contract within 180 days following the date such agreement is entered into. Pending the final application of any such Net Cash Proceeds, the Company may temporarily reduce revolving credit borrowings or otherwise invest utilize such Net Cash Proceeds in a any manner that is not prohibited by this Agreement. The amount Indenture.
(e) Any Net Proceeds from Asset Sales that are not applied or invested as provided in Section 4.10(b), Section 4.10(c) or Section 4.10(d) hereof will constitute “Excess Proceeds” (it being understood that any portion of such Net Cash Proceeds used to make an offer to purchase Notes as described in Sections 4.10(d)(1) hereof shall be deemed to have been invested whether or not so used as set forth above in this paragraph shall constitute "Excess Proceedssuch offer is accepted)."
(cf) When Within 10 Business Days after the aggregate amount of Excess Proceeds exceeds $10,000,00025.0 million (or, at the Company’s option, on any earlier date or for any lesser amount), the Company will, within 30 days thereafter, will make an offer to purchase (an "Excess Proceeds “Asset Sale Offer"”) from all Holders of Notes on a pro rata basis, in accordance with the procedures of Section 3.09 to all Holders, and all holders of other Pari Passu Indebtedness containing provisions similar to those set forth in this AgreementIndenture 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 (expressed as a multiple of $1,000) of Notes and such other Pari Passu Indebtedness (plus all accrued interest on the Indebtedness and the amount of all fees and expenses, including premiums, incurred in connection therewith) that may be purchased with purchased, prepaid or redeemed out of the Excess Proceeds, at a purchase . The offer price in cash any Asset Sale Offer will be equal to 100% of the principal amount thereof, plus accrued and unpaid interest, if any, to the date such offer of settlement, subject to purchase the right of Holders of record on the relevant record date to receive interest due on an interest payment date that is consummatedon or prior to the date of settlement, and will be payable in cash. To If any Excess Proceeds remain after the extent that the aggregate principal amount consummation of Notes tendered pursuant to such offer to purchase is less than the Excess Proceedsan Asset Sale Offer, the Company or any Restricted Subsidiary may use such deficiency those Excess Proceeds for general corporate purposesany purpose not otherwise prohibited by this Indenture. If the aggregate principal amount of Notes validly and other Pari Passu Indebtedness tendered and not withdrawn by holders thereof in such Asset Sale Offer exceeds the amount of Excess Proceeds, the Trustee will select the Notes and the Trustee or agent for such other Pari Passu Indebtedness shall select such Pari Passu Indebtedness to be purchased will be selected on a pro rata basisbasis (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 Pari Passu Indebtedness is purchased in part in an unauthorized denomination. Upon completion of such offer to purchaseeach Asset Sale Offer, the amount of Excess Proceeds will be reset to at zero.
(iiig) The Company will comply with the requirements of Rule 14e-1 under the Exchange Act and any other securities laws and regulations thereunder to the extent such those laws and regulations are applicable in connection with each repurchase of Notes pursuant to an Excess Proceeds Asset Sale Offer. To the extent that the provisions of any securities laws or regulations conflict with the Asset Sales provisions of Section 3.09 hereof or this AgreementSection 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 5(j) of 3.09 hereof or this Agreement Section 4.10 by virtue of such conflictcompliance.
Appears in 2 contracts
Samples: Indenture (Par Pacific Holdings, Inc.), Indenture (Par Pacific Holdings, Inc.)
Asset Sales. (i) The Company shall will not, and shall will not permit any of its Restricted Subsidiary Subsidiaries to, engage in any consummate an Asset Sale unless (xa) the consideration received by the Company or such the Restricted Subsidiary for such Subsidiary, as the case may be, receives consideration at the time of that Asset Sale is not less than at least equal to the fair market value of the assets sold (evidenced by a resolution of the board Board of directors of such entity Directors set forth in an Officers' Certificate delivered to the Holders Trustee) of the assets or Equity Interests issued or sold or otherwise disposed of; and (yb) at least 75% of the consideration therefor received by the Company or the relevant such Restricted Subsidiary is in respect the form of such Asset Sale consists of at least 75% (i) cash or Cash Equivalents Equivalents; or (for purposes ii) property or assets that are used or useful in a Permitted Business, or the Capital Stock of this clause any Person engaged in a Permitted Business if, as a result of the acquisition by the Company or any Restricted Subsidiary thereof, such Person becomes a Restricted Subsidiary; provided that the amount of (y), cash and Cash Equivalents includes (Ax) any liabilities (liabilities, as reflected in shown on the Company's consolidated or such Restricted Subsidiary's most recent balance sheet) , of the Company or any Restricted Subsidiary (other than contingent liabilities and liabilities that are by their terms subordinated to the Notes or any Guaranteeguarantee thereof) that are assumed by any the transferee of any such assets or other property in such Asset Sale, and where pursuant to a customary novation agreement that releases the Company or the relevant Restricted Subsidiary is released from any further liability in connection therewith with respect to such liabilities, liability; (By) any securities, notes or other similar obligations received by the Company or any such the Restricted Subsidiary from such the transferee that are converted within 180 days of the consummation of the related Asset Sale their receipt by the Company or such the Restricted Subsidiary into cash and or Cash Equivalents (but only to the extent of the net cash proceeds or the Cash Equivalents (net of related costs) received upon such conversion) received; and (Cz) any Designated Noncash Consideration received by the Company or any such of its Restricted Subsidiary Subsidiaries in the that Asset Sale having an aggregate fair market value, as determined by the Board of the Company, taken together with all other Designated Noncash Consideration received pursuant to this clause (z) that is at that time outstanding, not to exceed the greater of:
(1) $10,000,000; and
(2) 15% of Consolidated Tangible Total Assets at the time of the receipt of such that Designated Noncash Consideration (Consideration, with the fair market value of each item of such Designated Noncash Consideration being measured at the time received and without giving effect to subsequent changes in value).
, shall be deemed to be cash for purposes of this Section 4.10; and provided further that the 75% limitation referred to in clause (iib) If above will not apply to any Asset Sale in which the Company cash or Cash Equivalents portion of the consideration received therefrom, determined in accordance with the foregoing proviso, is equal to or greater than what the after-tax proceeds would have been had such Asset Sale complied with the aforementioned 75% limitation. Within 365 days after the receipt of any Restricted Subsidiary engages in Net Proceeds from an Asset Sale, the Company may, at its option, within 12 months after such Asset Sale, (1) apply all or a portion of the Net Cash Proceeds to the permanent reduction of amounts outstanding under the Credit Agreement (and to correspondingly reduce the commitments, if any, with respect thereto) or to the permanent repayment of other Senior Indebtedness of the Company or a Restricted Subsidiary, provided that the repayment of any Indebtedness incurred under the Credit Agreement in connection with the acquisition of any Facility with the proceeds of any subsequent Sale and Leaseback Transaction relating to such Facility shall not be required to result in the permanent reduction of the amounts outstanding under the Credit Agreement or correspondingly permanently reduce the commitments thereunder, or (2) invest (or enter into a legally binding agreement to invest) all or a portion of such Net Cash Proceeds in properties and assets to replace the properties and assets that were the subject of the Asset Sale or in properties and assets that will be used in the businesses of the Company or its Restricted Subsidiaries, as the case may be, existing on the Closing Date or in businesses the same, similar or reasonably related thereto. If any such legally binding agreement to invest shall apply such Net Cash Proceeds, at its option (or to the extent the Company is required to apply such Net Proceeds is terminatedpursuant to the terms of the New Credit Facility), to (a) repay or purchase Senior Indebtedness or Pari Passu Indebtedness of the Company or any Indebtedness of any Restricted Subsidiary, as the case may be, provided that if the Company shall so repay or purchase Pari Passu Indebtedness of the Company, (i) it will equally and ratably reduce Indebtedness under the Notes if the Notes are then redeemable; or, (ii) if the Notes may not then be redeemed, the Company mayshall make an
(i) an investment in property, within 90 days the making of such termination a capital expenditure or within 12 months the acquisition of such Asset Saleassets that are used or useful in a Permitted Business; or (ii) the acquisition of Capital Stock of any Person primarily engaged in a Permitted Business if (x) as a result of the acquisition by the Company or any Restricted Subsidiary thereof, whichever that Person becomes a Restricted Subsidiary; or (y) the Investment in that Capital Stock is later, invest such Net Cash Proceeds as provided in permitted by clause (16) or (2) (without regard to of the parenthetical contained in such clause (2)) abovedefinition of Permitted Investments. Pending the final application of any such Net Cash Proceeds, the Company may temporarily reduce revolving credit borrowings Indebtedness or otherwise invest such those Net Cash Proceeds in a any manner that is not prohibited by this AgreementIndenture. The amount Any Net Proceeds from Asset Sales that are not applied or invested as provided in the first sentence of such Net Cash Proceeds not so used as set forth above in this paragraph shall will be deemed to constitute "Excess Proceeds."
(c) " When the aggregate amount of Excess Proceeds exceeds $10,000,00010.0 million, the Company will, within 30 days thereafter, will be required to make an offer to purchase (an "Excess Proceeds Offer") from all Holders of Notes on a pro rata basis, in accordance with the procedures set forth in this Agreement, (an "Asset Sale Offer") to purchase the maximum principal amount (expressed as a multiple of $1,000) of Notes that may be purchased with out of the Excess Proceeds, at a purchase an offer price in cash in an amount equal to 100% of the principal amount thereof, plus accrued interestand unpaid interest and Liquidated Damages, if any, thereon to the date such offer to purchase is consummatedof purchase, in accordance with the procedures set forth in this Indenture. To the extent that the aggregate principal amount any Excess Proceeds remain after consummation of Notes tendered pursuant to such offer to purchase is less than the Excess Proceedsan Asset Sale Offer, the Company may use such deficiency Excess Proceeds for general corporate purposesany purpose not otherwise prohibited by this Indenture. If the aggregate principal amount of Notes validly tendered and not withdrawn surrendered by holders Holders thereof in connection with an Asset Sale Offer exceeds the amount of Excess Proceeds, the Trustee shall select the Notes to be purchased will be selected on a pro rata basisas set forth under Sections 3.02 and 3.03 hereof. Upon completion of such offer to purchase, the amount of Excess Proceeds will shall be reset to at zero.
(iii) . The Company will comply with the requirements of Rule 14e-1 under the Exchange Act and any other securities laws and regulations thereunder to the extent such those laws and regulations are applicable in connection with each the repurchase of the Notes pursuant to an Excess Proceeds Asset Sale Offer. To the extent that the provisions of any securities laws or regulations conflict with the Asset Sales provisions of this AgreementIndenture relating to such Asset Sale Offer, the Company will comply with the applicable securities laws and regulations and will shall not be deemed to have breached its obligations under Section 5(j) of described in this Agreement Indenture by virtue of such conflictthereof.
Appears in 2 contracts
Samples: Indenture (Charles River Laboratories Inc), Indenture (Charles River Laboratories Holdings Inc)
Asset Sales. (i) The Company Lessee shall not, and shall not permit any of the Restricted Subsidiary Subsidiaries to, engage (i) sell, lease, convey or otherwise dispose of any assets (including by way of a sale-and-leaseback) other than sales of inventory in the ordinary course of business consistent with past practice (provided that the sale, lease, conveyance or other disposition of all or substantially all of the assets of Lessee shall be governed by the provisions of Section 5.19 hereof and not by the provisions of this Section 5.18), or (ii) issue or sell Equity Interests of any of its Subsidiaries, in the case of either clause (i) or (ii) above, whether in a single transaction or a series of related transactions, (A) that have a fair market value in excess of the lesser of $10,000,000 or the amount (which amount is equal to $5,000,000 as of the Effective Date) specified in Section 4.10 of the 1996 Indenture as amended from time to time (such lesser amount, the "Applicable Amount"), or (B) for net proceeds in excess of the "Applicable Amount" (each of the foregoing, an "Asset Sale Sale"), unless (xX) Lessee (or the Restricted Subsidiary, as the case may be) receives consideration received by at the Company or such Restricted Subsidiary for time of such Asset Sale is not less than at least equal to the fair market value of the assets sold (evidenced by a resolution of the board of directors of the General Partner (and, if applicable, the audit committee of such entity board of directors) set forth in an Officers' Certificate a certificate signed by a Responsible Officer and delivered to Agent) of the Holders assets sold or otherwise disposed of and (yY) at least 80% of the consideration therefor received by Lessee or such Subsidiary is in the Company or form of cash; provided, however, that the relevant Restricted Subsidiary in respect amount of such Asset Sale consists of at least 75% cash or Cash Equivalents (for purposes of this clause (y), cash and Cash Equivalents includes (A1) any liabilities (as reflected shown on Lessee's or such Subsidiary's most recent balance sheet or in the Company's consolidated balance sheet) notes thereto), of the Company Lessee or any Restricted Subsidiary (other than contingent liabilities and liabilities that are by their terms subordinated in right of payment to the Notes or any GuaranteeObligations hereunder and under the other Operative Documents) that are assumed by any the transferee of any such assets or other property in such Asset Sale, and where the Company or the relevant Restricted Subsidiary is released from any further liability in connection therewith with respect to such liabilities, (B2) any securities, notes or other similar obligations received by the Company Lessee or any such Restricted Subsidiary from such transferee that are immediately converted within 180 days of the consummation of the related Asset Sale by the Company Lessee or such Restricted Subsidiary into cash and Cash Equivalents (to the extent of the net cash proceeds or received), shall be deemed to be cash for purposes of this provision; and provided, further, that the Cash Equivalents 80% limitation referred to in this clause (net of related costsY) received upon such conversion) and (C) shall not apply to any Designated Noncash Consideration received by the Company or any such Restricted Subsidiary in the Asset Sale having an aggregate fair market value, as determined by in which the Board of the Company, taken together with all other Designated Noncash Consideration received pursuant to this clause that is at that time outstanding, not to exceed the greater of:
(1) $10,000,000; and
(2) 15% of Consolidated Tangible Assets at the time of the receipt of such Designated Noncash Consideration (with the fair market value of each item of such Designated Noncash Consideration being measured at the time received and without giving effect to subsequent changes in value).
(ii) If the Company or any Restricted Subsidiary engages in an Asset Sale, the Company may, at its option, within 12 months after such Asset Sale, (1) apply all or a cash portion of the Net Cash Proceeds consideration received therefrom, determined in accordance with the foregoing proviso, is equal to or greater than what the permanent reduction after-tax proceeds would have been had such Asset Sale complied with the aforementioned 80% limitation. Notwithstanding the foregoing, Asset Sales shall not be deemed to include (w) sales or transfers of amounts accounts receivable by Lessee to an SPE and by an SPE to any other Person in connection with any Accounts Receivable Securitization permitted by Section 5.21 (provided that the aggregate amount of such accounts receivable that shall have been transferred to and held by all SPEs at any time shall not exceed 133% of the amount of Accounts Receivable Securitizations permitted to be outstanding under the Credit Agreement Section 5.21), (and x) any transfer of assets by Lessee or any of its Subsidiaries to correspondingly reduce the commitments, if any, with respect thereto) or to the permanent repayment of other Senior Indebtedness of the Company Lessee or a Restricted Subsidiary, provided (y) any transfer of assets by Lessee or any of its Subsidiaries to any Person in exchange for other assets used in a line of business permitted under Section 5.31 and having a fair market value not less than that of the repayment assets so transferred and (z) any transfer of assets pursuant to a Permitted Lessee Investment or any sale-leaseback (including sale-leasebacks involving Synthetic Leases) permitted by Section 5.33. Notwithstanding the foregoing, Lessee may not sell, lease, convey or otherwise dispose of any Indebtedness incurred under Unit except as permitted by the Credit Agreement in connection with the acquisition of any Facility with the proceeds of any subsequent Sale and Leaseback Transaction relating to such Facility shall not be required to result in the permanent reduction of the amounts outstanding under the Credit Agreement or correspondingly permanently reduce the commitments thereunder, or (2) invest (or enter into a legally binding agreement to invest) all or a portion of such Net Cash Proceeds in properties and assets to replace the properties and assets that were the subject of the Asset Sale or in properties and assets that will be used in the businesses of the Company or its Restricted Subsidiaries, as the case may be, existing on the Closing Date or in businesses the same, similar or reasonably related thereto. If any such legally binding agreement to invest such Net Cash Proceeds is terminated, the Company may, within 90 days of such termination or within 12 months of such Asset Sale, whichever is later, invest such Net Cash Proceeds as provided in clause (1) or (2) (without regard to the parenthetical contained in such clause (2)) above. Pending the final application of any such Net Cash Proceeds, the Company may temporarily reduce revolving credit borrowings or otherwise invest such Net Cash Proceeds in a manner that is not prohibited by this Agreement. The amount of such Net Cash Proceeds not so used as set forth above in this paragraph shall constitute "Excess ProceedsLease."
(c) When the aggregate amount of Excess Proceeds exceeds $10,000,000, the Company will, within 30 days thereafter, make an offer to purchase (an "Excess Proceeds Offer") from all Holders of Notes on a pro rata basis, in accordance with the procedures set forth in this Agreement, the maximum principal amount (expressed as a multiple of $1,000) of Notes that may be purchased with the Excess Proceeds, at a purchase price in cash equal to 100% of the principal amount thereof, plus accrued interest, if any, to the date such offer to purchase is consummated. To the extent that the aggregate principal amount of Notes tendered pursuant to such offer to purchase is less than the Excess Proceeds, the Company may use such deficiency for general corporate purposes. If the aggregate principal amount of Notes validly tendered and not withdrawn by holders thereof exceeds the Excess Proceeds, the Notes to be purchased will be selected on a pro rata basis. Upon completion of such offer to purchase, the amount of Excess Proceeds will be reset to zero.
(iii) 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 Excess Proceeds Offer. To the extent that the provisions of any securities laws or regulations conflict with the Asset Sales provisions of this Agreement, the Company will comply with the applicable securities laws and regulations and will not be deemed to have breached its obligations under Section 5(j) of this Agreement by virtue of such conflict.
Appears in 2 contracts
Samples: Participation Agreement, Lease Intended as Security, Loan Agreement (Ferrellgas Partners Finance Corp), Omnibus Amendment Agreement (Ferrellgas Partners Finance Corp)
Asset Sales. (i) The Company Holdings shall not, and shall not permit any of its Restricted Subsidiary Subsidiaries to, engage in any an Asset Sale in excess of $2.0 million unless (xi) Holdings (or the Restricted Subsidiary, as the case may be) receives consideration received by at the Company or such Restricted Subsidiary for time of such Asset Sale is not less than at least equal to the fair market value value, and in the case of a lease of assets, a lease providing for rent and other conditions which are no less favorable to Holdings (or the assets sold Restricted Subsidiary, as the case may be) in any material respect than the then prevailing market conditions (evidenced in each case by a resolution of the board Board of directors Directors of such entity set forth in an Officers' Certificate delivered to the Holders Trustee) of the assets or Equity Interests sold or otherwise disposed of, and (yii) the consideration received by the Company or the relevant Restricted Subsidiary in respect of such Asset Sale consists of at least 75% (100% in the case of lease payments) of the consideration therefor received by Holdings or such Restricted Subsidiary is in the form of cash or Cash Equivalents Equivalents; provided that the amount of (for purposes of this clause (y), cash and Cash Equivalents includes (Ax) any liabilities (as reflected shown on Holdings' or such Restricted Subsidiary's most recent balance sheet or in the Company's consolidated balance sheet) notes thereto, excluding contingent liabilities and trade payables), of the Company Holdings or any Restricted Subsidiary (other than contingent liabilities and liabilities that are by their terms subordinated to the Notes Exchange Debentures, or any Guaranteeguarantee thereof) that are assumed by any the transferee of any such assets or other property in such Asset Sale, and where the Company or the relevant Restricted Subsidiary is released from any further liability in connection therewith with respect to such liabilities, (By) any securities, notes or other similar obligations received by the Company Holdings or any such Restricted Subsidiary from such transferee that are promptly, but in no event more than 30 days after receipt, converted within 180 days of the consummation of the related Asset Sale by the Company Holdings or such Restricted Subsidiary into cash and Cash Equivalents (to the extent of the net cash proceeds or the Cash Equivalents (net received), shall be deemed to be cash for purposes of related costs) received upon such conversion) and (C) any Designated Noncash Consideration received by the Company or any such Restricted Subsidiary in the Asset Sale having an aggregate fair market value, as determined by the Board of the Company, taken together with all other Designated Noncash Consideration received pursuant to this clause that is at that time outstanding, not to exceed the greater of:
(1) $10,000,000; and
(2) 15% of Consolidated Tangible Assets at the time of provision. Within 365 days after the receipt of such Designated Noncash Consideration (with the fair market value of each item of such Designated Noncash Consideration being measured at the time received and without giving effect to subsequent changes in value).
(ii) If the Company or any Restricted Subsidiary engages in Net Proceeds from an Asset Sale, the Company may, at its option, within 12 months after Holdings may apply such Asset Sale, Net Proceeds (1a) apply all or a portion of the Net Cash Proceeds to the permanent reduction of amounts outstanding under the Credit Agreement (and to correspondingly reduce the commitments, if any, with respect thereto) or to the permanent repayment of other Senior permanently long-term Indebtedness of the Company or a Restricted Subsidiary, provided that (b) to reduce permanently Indebtedness (and, in the repayment case of any Indebtedness incurred revolving Indebtedness, to reduce permanently the commitments) under the New Credit Agreement Agreement, or (c) to an investment in connection with another business, the making of a capital expenditure or the acquisition of any Facility with the proceeds of any subsequent Sale and Leaseback Transaction relating to such Facility shall not be required to result other tangible assets, in each case, in the permanent reduction of the amounts outstanding under the Credit Agreement or correspondingly permanently reduce the commitments thereunder, or (2) invest (or enter into a legally binding agreement to invest) all same or a portion similar line of such Net Cash Proceeds business as Holdings was engaged in properties and assets to replace the properties and assets that were the subject of the Asset Sale or in properties and assets that will be used in the businesses of the Company or its Restricted Subsidiaries, as the case may be, existing on the Closing Date date of this Indenture. Any Net Proceeds from Asset Sales that are not applied or in businesses the same, similar or reasonably related thereto. If any such legally binding agreement to invest such Net Cash Proceeds is terminated, the Company may, within 90 days of such termination or within 12 months of such Asset Sale, whichever is later, invest such Net Cash Proceeds invested as provided in clause (1) or (2) (without regard to the parenthetical contained in such clause (2)) above. Pending the final application preceding sentence of any such Net Cash Proceeds, the Company may temporarily reduce revolving credit borrowings or otherwise invest such Net Cash Proceeds in a manner that is not prohibited by this Agreement. The amount of such Net Cash Proceeds not so used as set forth above in this paragraph shall be deemed to constitute "Excess Proceeds."
" On the earlier of (i) the 366th day after an Asset Sale or (ii) such date as the Board of Holdings or the Restricted Subsidiary determines not to apply the Net Proceeds relating to such Asset Sale in the manner set forth in (a), (b) or (c) When ), if the aggregate amount of Excess Proceeds exceeds $10,000,0007.5 million, the Company will, within 30 days thereafter, Holdings will be required to make an offer to purchase all Holders of Exchange Debentures (an "Excess Proceeds Asset Sale Offer") from all Holders to purchase the maximum principal amount of Notes on a pro rata basisExchange Debentures that may be purchased out of the Excess Proceeds, at an offer price in cash in an amount equal to 100% of the principal amount thereof plus accrued and unpaid interest thereon to the date of purchase, in accordance with the procedures set forth in this Agreement, the maximum principal amount (expressed as a multiple of $1,000) of Notes that may be purchased with the Excess Proceeds, at a purchase price in cash equal to 100% of the principal amount thereof, plus accrued interest, if any, to the date such offer to purchase is consummatedIndenture. To the extent that the aggregate principal amount of Notes Exchange Debentures tendered pursuant to such offer to purchase an Asset Sale Offer is less than the Excess Proceeds, the Company Holdings may use such deficiency any remaining Excess Proceeds for general corporate purposes. If the aggregate principal amount of Notes validly tendered and not withdrawn Exchange Debentures surrendered by holders Holders thereof exceeds the amount of Excess Proceeds, the Notes Trustee shall select the Exchange Debentures to be purchased will be selected on a pro rata basis. Upon completion of such offer to purchaseAsset Sale Offer, the amount of Excess Proceeds will shall be reset at zero. The Asset Sale Offer shall remain open for a period of 20 Business Days following its commencement and no longer, except to zero.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"), Holdings shall purchase the principal amount of Exchange Debentures required to be purchased pursuant to this covenant (the "Asset Sale Offer Amount") or, if less than the Asset Sale Offer Amount has been tendered, all Exchange Debentures tendered in response to the Asset Sale Offer. Payment for any Exchange Debentures so purchased shall be made in the same manner as interest payments are made on the Exchange Debentures. If the Asset Sale Purchase Date is on or after an interest record date and on or before the related interest payment date, any accrued and unpaid interest shall be paid to the Person in whose name an Exchange Debenture is registered at the close of business on such record date, and no additional interest shall be payable to Holders who tender Exchange Debentures pursuant to the Asset Sale Offer. Upon the commencement of an Asset Sale Offer, Holdings shall send, by first class mail, a notice to the Trustee and each of the Holders, with a copy to the Trustee. The notice shall contain all instructions and materials necessary to enable such Holders to tender Exchange Debentures pursuant to the Asset Sale Offer. The Asset Sale Offer shall be made to all Holders. The notice, which shall govern the terms of the Asset Sale Offer, shall state:
(iiia) The Company that the Asset Sale Offer is being made pursuant to this covenant and the length of time the Asset Sale Offer shall remain open;
(b) the Asset Sale Offer Amount, the purchase price and the Asset Sale Purchase Date;
(c) that any Exchange Debenture not tendered or accepted for payment shall continue to accrete or accrue interest;
(d) that, unless Holdings defaults in making such payment, any Exchange Debenture accepted for payment pursuant to the Asset Sale Offer shall cease to accrete or accrue interest after the Asset Sale Purchase Date;
(e) that Holders electing to have an Exchange Debenture purchased pursuant to any Asset Sale Offer shall be required to surrender the Exchange Debenture, with the form entitled "Option of Holder to Elect Purchase" on the reverse of the Exchange Debenture completed, or transfer by book-entry transfer, to Holdings, a depositary, if appointed by Holdings, or a Paying Agent at the address specified in the notice at least three days before the Asset Sale Purchase Date;
(f) that Holders shall be entitled to withdraw their election if Holdings, the Depositary or the Paying Agent, as the case may be, receives, not later than the expiration of the Offer Period, a telegram, facsimile transmission or letter setting forth the name of the Holder, the principal amount of the Exchange Debenture the Holder delivered for purchase and a statement that such Holder is withdrawing his election to have such Exchange Debenture purchased;
(g) that, if the aggregate principal amount of Exchange Debentures surrendered by Holders exceeds the Asset Sale Offer Amount, Holdings shall select the Exchange Debentures to be purchased on a pro rata basis (with such adjustments as may be deemed appropriate by Holdings so that only Exchange Debentures in denominations of $1,000, or integral multiples thereof, shall be purchased); and
(h) that Holders whose Exchange Debentures were purchased only in part shall be issued new Exchange Debentures equal in principal amount to the unpurchased portion of the Exchange Debentures surrendered (or transferred by book-entry transfer). On or before the Asset Sale Purchase Date, Holdings shall, to the extent lawful, accept for payment, on a pro rata basis to the extent necessary, the Asset Sale Offer Amount of Exchange Debentures or portions thereof tendered pursuant to the Asset Sale Offer, or if less than the Asset Sale Offer Amount has been tendered, all Exchange Debentures tendered, and shall deliver to the Trustee an Officers' Certificate stating that such Exchange Debentures or portions thereof were accepted for payment by Holdings in accordance with the terms of this covenant. Holdings, the Depositary or the Paying Agent, as the case may be, shall promptly (but in any case not later than five days after the Asset Sale Purchase Date) mail or deliver to each tendering Holder an amount equal to the purchase price of the Exchange Debentures tendered by such Holder and accepted by Holdings for purchase, and Holdings shall promptly issue a new Exchange Debenture, and the Trustee, upon delivery of an Officers' Certificate from Holdings, shall authenticate and mail or deliver such new Exchange Debenture to such Holder, in a principal amount equal to any unpurchased portion of the Exchange Debenture surrendered. Any Exchange Debenture not so accepted shall be promptly mailed or delivered by Holdings to the Holder thereof. Holdings shall publicly announce the results of the Asset Sale Offer on the Asset Sale Purchase Date. Holdings 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 the repurchase of Notes Exchange Debentures pursuant to an Excess Proceeds any Asset Sale Offer. To the extent that the provisions of any securities laws or regulations conflict with the Asset Sales provisions of this Agreement, the Company will comply with the applicable securities laws and regulations and will not be deemed to have breached its obligations under Section 5(j) of this Agreement by virtue of such conflict.
Appears in 2 contracts
Samples: Indenture (Anvil Holdings Inc), Indenture (Cottontops Inc)
Asset Sales. No Group Member shall Sell any of its property (other than cash) or issue shares of its own Stock, except for the following:
(a) In each case to the extent entered into in the ordinary course of business and made to a Person that is not an Affiliate of the Borrower, (i) The Company shall notSales of Cash Equivalents, or inventory or property in the ordinary course of business or that has become obsolete or worn out and shall (ii) non-exclusive licenses of Intellectual Property;
(b) (i) a true lease or sublease of real property not permit any Restricted Subsidiary toconstituting Indebtedness and not entered into as part of a Sale and Leaseback Transaction and (ii) a Sale of property pursuant to a Sale and Leaseback Transaction; provided, engage in any Asset Sale unless (x) however, that the consideration received by the Company or such Restricted Subsidiary for such Asset Sale is not less than the aggregate fair market value of the assets sold evidenced by a resolution of the board of directors of such entity set forth in an Officers' Certificate delivered to the Holders and (y) the consideration received by the Company or the relevant Restricted Subsidiary in respect of such Asset Sale consists of at least 75% cash or Cash Equivalents (for purposes of this clause (y), cash and Cash Equivalents includes (A) any liabilities (as reflected in the Company's consolidated balance sheet) of the Company or any Restricted Subsidiary (other than contingent liabilities and liabilities that are by their terms subordinated to the Notes or any Guarantee) that are assumed by any transferee of any such assets or other property in such Asset Sale, and where the Company or the relevant Restricted Subsidiary is released from any further liability in connection therewith with respect to such liabilities, (B) any securities, notes or other similar obligations received by the Company or any such Restricted Subsidiary from such transferee that are converted within 180 days of the consummation of the related Asset Sale by the Company or such Restricted Subsidiary into cash and Cash Equivalents (to the extent of the net cash proceeds or the Cash Equivalents (net of related costs) received upon such conversion) and (C) any Designated Noncash Consideration received by the Company or any such Restricted Subsidiary in the Asset Sale having an aggregate fair market value, as determined by the Board of the Company, taken together with all other Designated Noncash Consideration received pursuant to this clause that is at that time outstanding, not to exceed the greater of:
(1) $10,000,000; and
(2) 15% of Consolidated Tangible Assets measured at the time of the receipt applicable Sale) of such Designated Noncash Consideration (with the fair market value of each item of such Designated Noncash Consideration being measured at the time received and without giving effect to subsequent changes in value).
(ii) If the Company or all property covered by any Restricted Subsidiary engages in an Asset Sale, the Company may, at its option, within 12 months after such Asset Sale, (1) apply all or a portion of the Net Cash Proceeds to the permanent reduction of amounts outstanding under the Credit Agreement (and to correspondingly reduce the commitments, if any, with respect thereto) or to the permanent repayment of other Senior Indebtedness of the Company or a Restricted Subsidiary, provided that the repayment of any Indebtedness incurred under the Credit Agreement in connection with the acquisition of any Facility with the proceeds of any subsequent Sale and Leaseback Transaction relating to such Facility at any time shall not be required exceed $575,000;
(i) any Sale of any property (other than their own Stock or Stock Equivalents) by any Group Member (other than Holdings) to any other Group Member (other than Holdings) to the extent any resulting Investment constitutes a Permitted Investment, (ii) any Restricted Payment by any Group Member (other than Holdings) permitted pursuant to Section 8.5 and (iii) any distribution by Holdings of the proceeds of Restricted Payments from any other Group Member to the extent permitted in Section 8.5; CREDIT AGREEMENT MEDICAL STAFFING NETWORK, INC.
(d) (i) any Sale or issuance by Holdings of its own Stock, (ii) any Sale or issuance by the Borrower of its own Stock to Holdings, (iii) any Sale or issuance by any Subsidiary of the Borrower of its own Stock to any Group Member (other than Holdings), provided, however, that the proportion of such Stock and of each class of such Stock (both on an outstanding and fully-diluted basis) held by the Loan Parties (other than Holdings), taken as a whole, does not change as a result of such Sale or issuance and (iv) to the extent necessary to satisfy any Requirement of Law in the permanent reduction jurisdiction of incorporation of any Subsidiary of the amounts outstanding under the Credit Agreement Borrower, any Sale or correspondingly permanently reduce the commitments thereunderissuance by such Subsidiary of its own Stock constituting directors’ qualifying shares or nominal holdings; and
(e) as long as no Default is continuing or would result therefrom, any Sale of property (other than as part of a Sale and Leaseback Transaction) of, or (2) invest (or enter into a legally binding agreement to invest) all or a portion of such Net Cash Proceeds in properties and assets to replace the properties and assets that were the subject of the Asset Sale or in properties and assets that will be used in the businesses issuance of the Company or its Restricted Subsidiariesown Stock by, as the case may be, existing on the Closing Date or in businesses the same, similar or reasonably related thereto. If any such legally binding agreement to invest such Net Cash Proceeds is terminated, the Company may, within 90 days of such termination or within 12 months of such Asset Sale, whichever is later, invest such Net Cash Proceeds as provided in clause Group Member (1other than Holdings) or (2) (without regard to the parenthetical contained in such clause (2)) above. Pending the final application of any such Net Cash Proceeds, the Company may temporarily reduce revolving credit borrowings or otherwise invest such Net Cash Proceeds in a manner that is not prohibited by this Agreement. The amount of such Net Cash Proceeds not so used as set forth above in this paragraph shall constitute "Excess Proceeds."
(c) When the aggregate amount of Excess Proceeds exceeds $10,000,000, the Company will, within 30 days thereafter, make an offer to purchase (an "Excess Proceeds Offer") from all Holders of Notes on a pro rata basis, in accordance with the procedures set forth in this Agreement, the maximum principal amount (expressed as a multiple of $1,000) of Notes that may be purchased with the Excess Proceeds, at a purchase price for fair market value payable in cash equal to 100% of the principal amount thereofupon such sale; provided, plus accrued interesthowever, if any, to the date such offer to purchase is consummated. To the extent that the aggregate principal amount of Notes tendered pursuant to consideration received during any Fiscal Year for all such offer to purchase is less than the Excess Proceeds, the Company may use such deficiency for general corporate purposes. If the aggregate principal amount of Notes validly tendered and Sales shall not withdrawn by holders thereof exceeds the Excess Proceeds, the Notes to be purchased will be selected on a pro rata basis. Upon completion of such offer to purchase, the amount of Excess Proceeds will be reset to zeroexceed $1,150,000.
(iii) 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 Excess Proceeds Offer. To the extent that the provisions of any securities laws or regulations conflict with the Asset Sales provisions of this Agreement, the Company will comply with the applicable securities laws and regulations and will not be deemed to have breached its obligations under Section 5(j) of this Agreement by virtue of such conflict.
Appears in 1 contract
Samples: Second Lien Credit Agreement (Medical Staffing Network Holdings Inc)
Asset Sales. (i) The Company shall not, and shall not permit any of the Restricted Subsidiary Subsidiaries to, engage in any consummate an Asset Sale unless unless:
(xa) the Company (or the Restricted Subsidiary, as the case may be) receives consideration at the time of the Asset Sale at least equal to the fair market value of the assets or Equity Interests issued or sold or otherwise disposed of;
(b) the fair market value is determined by the Company’s Board of Directors and evidenced by a resolution of the Board of Directors; and
(c) at least 70% of the consideration received in the Asset Sale by the Company or such Restricted Subsidiary for such Asset Sale is not less than in the fair market value form of the assets sold evidenced by a resolution of the board of directors of such entity set forth in an Officers' Certificate delivered to the Holders and (y) the consideration received by the Company or the relevant Restricted Subsidiary in respect of such Asset Sale consists of at least 75% cash or cash, Cash Equivalents (for and/or Replacement Assets. For purposes of this clause provision, each of the following will be deemed to be cash:
(y), cash and Cash Equivalents includes (Ai) any liabilities (liabilities, as reflected in shown on the Company's consolidated ’s or such Restricted Subsidiary’s most recent balance sheet) , of the Company or any Restricted Subsidiary (other than contingent liabilities and liabilities that are by their terms subordinated to the Notes or any Subsidiary Guarantee) that are assumed by any the transferee of any such assets or other property in such Asset Sale, and where from which the Company or the relevant such Restricted Subsidiary is released from any further liability in connection therewith with respect to such liabilities, liability; and
(Bii) any securities, notes or other similar obligations received by the Company or any such Restricted Subsidiary from such transferee that are converted within 180 days of the consummation of the related Asset Sale by the Company or such Restricted Subsidiary into cash and Cash Equivalents (within 60 days of receipt, to the extent of the net cash proceeds or the Cash Equivalents (net of related costs) received upon such in that conversion) and (C) any Designated Noncash Consideration received by the Company or any such Restricted Subsidiary in the Asset Sale having an aggregate fair market value, as determined by the Board of the Company, taken together with all other Designated Noncash Consideration received pursuant to this clause that is at that time outstanding, not to exceed the greater of:
(1) $10,000,000; and
(2) 15% of Consolidated Tangible Assets at the time of . Within 360 days after the receipt of such Designated Noncash Consideration (with the fair market value of each item of such Designated Noncash Consideration being measured at the time received and without giving effect to subsequent changes in value).
(ii) If the Company or any Restricted Subsidiary engages in Net Proceeds from an Asset Sale, the Company may, may apply those Net Proceeds at its option, within 12 months after such Asset Sale, :
(1a) apply to repay Senior Debt;
(b) to acquire all or a portion substantially all of the Net Cash Proceeds to the permanent reduction of amounts outstanding under the Credit Agreement (and to correspondingly reduce the commitmentsassets of, if any, with respect thereto) or to the permanent repayment of other Senior Indebtedness a majority of the Company or Voting Stock of, another Permitted Business;
(c) to make a Restricted Subsidiary, provided that the repayment of any Indebtedness incurred under the Credit Agreement in connection with the acquisition of any Facility with the proceeds of any subsequent Sale and Leaseback Transaction relating capital expenditure;
(d) to such Facility shall not be required acquire Replacement Assets; or
(e) to result in the permanent reduction of the amounts outstanding under the Credit Agreement or correspondingly permanently reduce the commitments thereunder, or (2) invest (or enter into a legally binding agreement to invest) all or a portion of such Net Cash Proceeds in properties and assets to replace the properties and acquire other long-term assets that were the subject of the Asset Sale are used or useful in properties and assets that will be used in the businesses of the Company or its Restricted Subsidiaries, as the case may be, existing on the Closing Date or in businesses the same, similar or reasonably related thereto. If any such legally binding agreement to invest such Net Cash Proceeds is terminated, the Company may, within 90 days of such termination or within 12 months of such Asset Sale, whichever is later, invest such Net Cash Proceeds as provided in clause (1) or (2) (without regard to the parenthetical contained in such clause (2)) abovea Permitted Business. Pending the final application of any such Net Cash Proceeds, the Company may temporarily reduce revolving credit borrowings or otherwise invest such the Net Cash Proceeds in a any manner that is not prohibited by this Agreementhereunder. The amount of such Any Net Cash Proceeds from Asset Sales that are not so used applied or invested as set forth above provided in this the preceding paragraph shall will constitute "“Excess Proceeds."
(c) ” When the aggregate amount of Excess Proceeds exceeds $10,000,00025.0 million, the Company will, within 30 days thereafter, shall make an offer ( an “Asset Sale Offer”) to purchase (an "Excess Proceeds Offer") from all Holders of Notes on a pro rata basis, in accordance and all holders of other Indebtedness that is pari passu with the procedures Notes containing provisions similar to those set forth in this Agreement, herein with respect to offers to purchase or redeem with the proceeds of sales of assets to purchase the maximum principal amount (expressed as a multiple of $1,000) of Notes and such other pari passu Indebtedness that may be purchased with out of the Excess Proceeds, at a purchase . The offer price in cash any Asset Sale Offer will be equal to 100% of the principal amount thereof, plus accrued and unpaid interest, if any, to the date such offer to purchase is consummatedof purchase, and will be payable in cash. To the extent that the aggregate principal amount If any Excess Proceeds remain after consummation of Notes tendered pursuant to such offer to purchase is less than the Excess Proceedsan Asset Sale Offer, the Company may use such deficiency those Excess Proceeds for general corporate purposesany purpose not otherwise prohibited by the Indenture. If the aggregate principal amount of Notes validly notes and other pari passu Indebtedness tendered and not withdrawn by holders thereof 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 will be selected on a pro rata basis. Upon completion of such offer to purchaseeach Asset Sale Offer, the amount of Excess Proceeds will be reset to at zero.
(iii) . The Company will comply with the requirements of Rule 14e-1 under the Exchange Act and any other securities laws and regulations thereunder to the extent such those laws and regulations are applicable in connection with each repurchase of Notes pursuant to an Excess Proceeds Asset Sale Offer. To the extent that the provisions of any securities laws or regulations conflict with the Asset Sales provisions of Section 3.03 hereof or this AgreementSection 4.04, the Company will comply with the applicable securities laws and regulations and will not be deemed to have breached its obligations under Section 5(j) of 3.03 hereof or this Agreement Section 4.04, by virtue of such conflict.
Appears in 1 contract
Asset Sales. (ia) The Company shall not, and shall not permit any of its Restricted Subsidiary Subsidiaries to, engage in any cause or make an Asset Sale Sale, unless (x) the Company or any of its Restricted Subsidiaries, as the case may be, receives consideration at the time of such Asset Sale at least equal to the Fair Market Value (as determined in good faith by the Company) of the assets sold or otherwise disposed of, and (y) at least 75% of the consideration therefor received TRDOCS01/76765.8 by the Company or such Restricted Subsidiary for such Asset Sale Subsidiary, as the case may be, is not less than in the fair market value form of Cash Equivalents; provided that the assets sold evidenced by a resolution of the board of directors of such entity set forth in an Officers' Certificate delivered to the Holders and amount of:
(y) the consideration received by the Company or the relevant Restricted Subsidiary in respect of such Asset Sale consists of at least 75% cash or Cash Equivalents (for purposes of this clause (y), cash and Cash Equivalents includes (Ai) any liabilities (as reflected shown on the Company’s or such Restricted Subsidiary’s most recent balance sheet or in the Company's consolidated balance sheetnotes thereto) of the Company or any Restricted Subsidiary of the Company (other than contingent liabilities and liabilities that are by their terms subordinated to the Notes Securities or any Guarantee) that are assumed by any the transferee of any such assets or other property in such Asset Sale, and where the Company or the relevant Restricted Subsidiary is released from any further liability in connection therewith with respect to such liabilities, assets,
(Bii) any securities, notes or other similar obligations or other securities or assets received by the Company or any such Restricted Subsidiary from such transferee that are converted within 180 days of the consummation of the related Asset Sale by the Company or such Restricted Subsidiary of the Company from such transferee that are converted by the Company or such Restricted Subsidiary of the Company into cash and Cash Equivalents within 180 days of the receipt thereof (to the extent of the net cash proceeds or the Cash Equivalents received), and
(net of related costs) received upon such conversion) and (Ciii) any Designated Noncash Non-cash Consideration received by the Company or any of its Restricted Subsidiaries in such Restricted Subsidiary in the Asset Sale having an aggregate fair market value, as determined by the Board of the CompanyFair Market Value, taken together with all other Designated Noncash Non-cash Consideration received pursuant to this clause (iii) that is at that time outstanding, not to exceed the greater of:
(1) $10,000,000; and
(2) 15of 3.0% of Consolidated Tangible Total Assets and $35 million at the time of the receipt of such Designated Noncash Non-cash Consideration (with the fair market value Fair Market Value of each item of such Designated Noncash Non-cash Consideration being measured at the time received and without giving effect to subsequent changes in value) shall be deemed to be Cash Equivalents for the purposes of this Section 4.06(a).
(iib) If Within 365 days after the Company Company’s or any Restricted Subsidiary engages in an of the Company’s receipt of the Net Proceeds of any Asset Sale, the Company mayor such Restricted Subsidiary of the Company may apply the Net Proceeds from such Asset Sale, at its option, within 12 months after such Asset Sale, :
(1i) apply all or a portion of the Net Cash Proceeds to the permanent reduction of amounts outstanding permanently reduce Obligations under the Credit Agreement (and and, in the case of revolving Obligations, to correspondingly reduce the commitments, if any, commitments with respect thereto) or to the permanent repayment of other Senior Indebtedness of or Pari Passu Indebtedness (provided that if the Company or a Restricted Subsidiary, provided that the repayment of any Indebtedness incurred Guarantor shall so reduce Obligations under the Credit Agreement in connection with the acquisition of any Facility with the proceeds of any subsequent Sale and Leaseback Transaction relating to such Facility shall not be required to result in the permanent reduction of the amounts outstanding under the Credit Agreement or correspondingly permanently reduce the commitments thereunder, or (2) invest (or enter into a legally binding agreement to invest) all or a portion of such Net Cash Proceeds in properties and assets to replace the properties and assets that were the subject of the Asset Sale or in properties and assets that will be used in the businesses of the Company or its Restricted Subsidiaries, as the case may be, existing on the Closing Date or in businesses the same, similar or reasonably related thereto. If any such legally binding agreement to invest such Net Cash Proceeds is terminatedPari Passu Indebtedness, the Company may, within 90 days of such termination or within 12 months of such Asset Sale, whichever is later, invest such Net Cash Proceeds as provided in clause (1) or (2) (without regard to shall equally and ratably reduce Obligations under the parenthetical contained in such clause (2)) above. Pending the final application of any such Net Cash Proceeds, the Company may temporarily reduce revolving credit borrowings or otherwise invest such Net Cash Proceeds in a manner that is not prohibited Securities by this Agreement. The amount of such Net Cash Proceeds not so used as set forth above in this paragraph shall constitute "Excess Proceeds."
(c) When the aggregate amount of Excess Proceeds exceeds $10,000,000, the Company will, within 30 days thereafter, make making an offer to purchase (an "Excess Proceeds Offer") from all Holders of Notes on a pro rata basis, in accordance with the procedures set forth in this Agreement, the maximum principal amount (expressed as a multiple of $1,000below for an Asset Sale Offer) of Notes that may be purchased with the Excess Proceeds, to all Holders to purchase at a purchase price in cash equal to 100% of the principal amount thereof, plus accrued interestand unpaid interest and Additional Interest, if any, the pro rata principal amount of Securities) or Indebtedness of a Restricted Subsidiary that is not a Guarantor, in each case other than Indebtedness owed to the Company or an Affiliate of the Company,
(ii) to make an investment in any one or more businesses (provided that if such investment is in the form of the acquisition of Capital Stock of a Person, such acquisition results in such Person becoming a Restricted Subsidiary of the Company), assets, or property or capital expenditures, in each case used or useful in a Similar Business, and/or
(iii) to make an investment in any one or more businesses (provided that if such investment is in the form of the acquisition of Capital Stock of a Person, such TRDOCS01/76765.8 acquisition results in such Person becoming a Restricted Subsidiary of the Company), properties or assets that replace the properties and assets that are the subject of such Asset Sale; provided that (x) 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 and, (y) in the event such binding commitment is later canceled or terminated for any reason before such Net Proceeds are so applied, the Company or such Restricted Subsidiary enters into another binding commitment within nine months of such cancellation or termination of the prior binding commitment; provided, further that the Company or such Restricted Subsidiary may only enter into such a commitment under clause (y) one time with respect to each Asset Sale. Pending the final application of any such Net Proceeds, the Company or such Restricted Subsidiary of the Company may temporarily reduce Indebtedness under a revolving credit facility, if any, or otherwise invest such Net Proceeds in Cash Equivalents or Investment Grade Securities. Any Net Proceeds from any Asset Sale that are not applied as provided and within the time period set forth in the first sentence of this Section 4.06(b) (it being understood that any portion of such Net Proceeds used to make an offer to purchase Securities, as described in clause (i) of this Section 4.06(b), shall be deemed to have been invested whether or not such offer is accepted) shall be deemed to constitute “Excess Proceeds.” When the aggregate amount of Excess Proceeds exceeds $15 million, the Company shall make an offer to all Holders of Securities (and, at the option of the Company, to holders of any Pari Passu Indebtedness) (an “Asset Sale Offer”) to purchase the maximum principal amount of Securities (and such Pari Passu Indebtedness), that is an integral multiple of $1,000 that may be purchased out of the Excess Proceeds at an offer price in cash in an amount equal to 100% of the principal amount thereof (or, in the event such Pari Passu Indebtedness was issued with significant original issue discount, 100% of the accreted value thereof), plus accrued and unpaid interest and Additional Interest, if any (or, in respect of such Pari Passu Indebtedness, such lesser price, if any, as may be provided for by the terms of such Pari Passu Indebtedness), to the date fixed for the closing of such offer offer, in accordance with the procedures set forth in this Section 4.06. The Company shall commence an Asset Sale Offer with respect to purchase is consummatedExcess Proceeds within ten Business Days after the date that Excess Proceeds exceeds $15 million by mailing the notice required pursuant to the terms of Section 4.06(f), with a copy to the Trustee. To the extent that the aggregate principal amount of Notes Securities (and such Pari Passu Indebtedness) tendered pursuant to such offer to purchase an Asset Sale Offer is less than the Excess Proceeds, the Company may use such deficiency any remaining Excess Proceeds for general corporate purposes. If the aggregate principal amount of Notes validly tendered Securities (and not withdrawn such Pari Passu Indebtedness) surrendered by holders thereof exceeds the amount of Excess Proceeds, the Notes Trustee shall select the Securities to be purchased will be selected on a pro rata basisin the manner described in Section 4.06(e). Upon completion of any such offer to purchaseAsset Sale Offer, the amount of Excess Proceeds will shall be reset to at zero.
(iiic) The Company will shall comply with the requirements of Rule 14e-1 under the Exchange Act and any other securities laws and regulations thereunder to the extent such laws and or regulations are applicable in connection with each the repurchase of Notes the Securities pursuant to an Excess Proceeds Asset Sale Offer. To the extent that the provisions of any securities laws or regulations conflict with the Asset Sales provisions of this AgreementIndenture, the Company will shall comply with the applicable securities laws and TRDOCS01/76765.8 regulations and will shall not be deemed to have breached its obligations under described in this Indenture by virtue thereof.
(d) Not later than the date upon which written notice of an Asset Sale Offer is delivered to the Trustee as provided above, the Company shall deliver to the Trustee an Officers’ Certificate as to (i) the amount of the Excess Proceeds, (ii) the allocation of the Net Proceeds from the Asset Sales pursuant to which such Asset Sale Offer is being made and (iii) the compliance of such allocation with the provisions of Section 5(j4.06(b). On such date, the Company shall also irrevocably deposit with the Trustee or with a paying agent (or, if the Company or a Wholly Owned Restricted Subsidiary is acting as the Paying Agent, segregate and hold in trust) an amount equal to the Excess Proceeds to be invested in Cash Equivalents, as directed in writing by the Company, and to be held for payment in accordance with the provisions of this Agreement 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 virtue the Company. The Trustee (or the Paying Agent, if not the Trustee) shall, on the date of purchase, mail or deliver payment to each tendering Holder in the amount of the purchase price. In the event that the Excess Proceeds delivered by the Company to the Trustee are greater than the purchase price of the Securities tendered, the Trustee shall deliver the excess to the Company immediately after the expiration of the Offer Period for application in accordance with Section 4.06.
(e) Holders electing to have a Security purchased shall be required to surrender the Security, with an appropriate form duly completed, to the Company at the address specified in the notice at least three Business Days prior to the purchase date. Holders shall be entitled to withdraw their election if the Trustee or the Company receives not later than one Business Day prior to the Purchase Date, a telegram, telex, facsimile transmission or letter setting forth the name of the Holder, the principal amount of the Security which was delivered by the Holder for purchase and a statement that such Holder is withdrawing his election to have such Security purchased. If at the end of the Offer Period more Securities (and such Pari Passu Indebtedness) are tendered pursuant to an Asset Sale Offer than the Company is required to purchase, selection of such conflictSecurities for purchase shall be made by the Trustee in compliance with the requirements of the principal national securities exchange, if any, on which such Securities are listed, or if such Securities are not so listed, on a pro rata basis, by lot or by such other method as the Trustee shall deem fair and appropriate (and in such manner as complies with applicable legal requirements); provided that no Securities of $1,000 or less shall be purchased in part. Selection of such Pari Passu Indebtedness shall be made pursuant to the terms of such Pari Passu Indebtedness.
(f) Notices of an Asset Sale Offer shall be mailed by first class mail, postage prepaid, at least 30 but not more than 60 days before the purchase date to each Holder of Securities at such Holder’s registered address. If any Security is to be purchased in part only, any notice of purchase that relates to such Security shall state the portion of the principal amount thereof that has been or is to be purchased.
Appears in 1 contract
Asset Sales. (i) The Company shall not, and shall not permit any of its Restricted Subsidiary Subsidiaries to, engage in any consummate an Asset Sale unless (xi) the consideration received by the Company or such Restricted Subsidiary for Subsidiary, as the case may be, receives consideration at the time of such Asset Sale is not less than at least equal to the fair market value of the assets sold (evidenced by a resolution of the board Board of directors of such entity Directors set forth in an Officers' Certificate delivered to the Holders Trustee) of the assets or Equity Interests issued or sold or otherwise disposed of and (yii) at least 85% of the consideration therefor received by the Company or the relevant such Restricted Subsidiary is in respect the form of such Asset Sale consists any combination of at least 75% cash or Cash Equivalents Equivalents; provided that the amount of (for purposes of this clause (y), cash and Cash Equivalents includes (Aa) any liabilities (as reflected in shown on the Company's consolidated or such Restricted Subsidiary's most recent balance sheet) of the Company or any such Restricted Subsidiary (other than contingent liabilities and liabilities that are by their terms subordinated to the Notes or any Guaranteeguarantee thereof) that are assumed by any the transferee of any such assets or other property in such Asset Sale, and where pursuant to a customary novation agreement that releases the Company or the relevant such Restricted Subsidiary is released from any further liability in connection therewith with respect to such liabilities, and (Bb) any securities, notes or other similar obligations received by the Company or any such Restricted Subsidiary from such transferee that are contemporaneously (subject to ordinary settlement periods) converted within 180 days of the consummation of the related Asset Sale by the Company or such Restricted Subsidiary into cash and Cash Equivalents (to the extent of the net cash proceeds or received), shall be deemed to be cash for purposes of this provision. The Company and its Restricted Subsidiaries will be permitted to consummate an Asset Sale without complying with clause (ii) of the Cash Equivalents immediately proceeding paragraph if (net of related costsi) received upon such conversion) and (C) any Designated Noncash Consideration received by the Company or any such Restricted Subsidiary in the Asset Sale having an aggregate fair market value, as determined by the Board of the Company, taken together with all other Designated Noncash Consideration received pursuant to this clause that is at that time outstanding, not to exceed the greater of:
(1) $10,000,000; and
(2) 15% of Consolidated Tangible Assets at the time of the receipt of such Designated Noncash Consideration (with the fair market value of each item of such Designated Noncash Consideration being measured at the time received and without giving effect to subsequent changes in value).
(ii) If the Company or any Restricted Subsidiary engages in an Asset Sale, the Company may, at its option, within 12 months after such Asset Sale, (1) apply all or a portion of the Net Cash Proceeds to the permanent reduction of amounts outstanding under the Credit Agreement (and to correspondingly reduce the commitments, if any, with respect thereto) or to the permanent repayment of other Senior Indebtedness of the Company or a applicable Restricted Subsidiary, provided that the repayment of any Indebtedness incurred under the Credit Agreement in connection with the acquisition of any Facility with the proceeds of any subsequent Sale and Leaseback Transaction relating to such Facility shall not be required to result in the permanent reduction of the amounts outstanding under the Credit Agreement or correspondingly permanently reduce the commitments thereunder, or (2) invest (or enter into a legally binding agreement to invest) all or a portion of such Net Cash Proceeds in properties and assets to replace the properties and assets that were the subject of the Asset Sale or in properties and assets that will be used in the businesses of the Company or its Restricted Subsidiaries, as the case may be, existing on receives consideration at the Closing Date time of such Asset Sale at least equal to the Fair Market Value of the assets or other property sold, issued or otherwise disposed of and (ii) at least 85% of the consideration for such Asset Sale constitutes any combination of cash, Cash Equivalents and Productive Assets; provided that any cash consideration, any non-cash consideration not constituting Productive Assets received by the Company or any of its Restricted Subsidiaries in businesses connection with such Asset Sale that is converted into or sold or otherwise disposed of for cash or Cash Equivalents at any time within 270 days after such Asset Sale and any Productive Assets constituting cash or Cash Equivalents received by the same, similar Company or reasonably related thereto. If any of its Restricted Subsidiaries in connection with such legally binding agreement to invest such Asset Sale shall constitute Net Cash Proceeds is terminatedsubject to the provisions set forth above. Within 270 days after the receipt of any Net Proceeds from any Asset Sale, the Company (or such Restricted Subsidiary) may, within 90 days subject to the provisions of such termination or within 12 months of such Asset Salethe covenant described in Section 4.07 hereof, whichever is later, invest apply such Net Cash Proceeds as provided in clause to (1i) permanently reduce the amounts permitted to be borrowed by the Company or such Restricted Subsidiary under the terms of any of its Debt that is not Subordinated Debt or (2ii) the purchase of Telecommunications Related Assets or Voting Stock of any Person engaged in the Telecommunications Business in the U.S. (without regard to provided that such Person concurrently becomes a Restricted Subsidiary of the parenthetical contained in such clause (2Company)) above. Pending the final application of any such Net Cash Proceeds, the Company may temporarily reduce revolving credit borrowings or otherwise invest such Net Cash Proceeds in a any manner that is not prohibited by this Agreementthe Indenture. The amount Any Net Proceeds from Asset Sales that are not applied or invested as provided in the first sentence of such Net Cash Proceeds not so used as set forth above in this paragraph shall will be deemed to constitute "Excess Proceeds."
(c) " When the aggregate amount of Excess Proceeds exceeds $10,000,0005.0 million, the Company will, within 30 days thereafter, will be required to make an offer to purchase all holders of Notes (an "Excess Proceeds Asset Sale Offer") from all Holders to repurchase the maximum principal amount of Notes on a pro rata basisthat may be purchased out of the Excess Proceeds, at an offer price in cash in an amount equal to 100% of the principal amount of the Notes to be purchased, plus accrued and unpaid interest thereon, if any, to the date of purchase (or, if such Asset Sale Offer is to be consummated prior to the Full Accretion Date, 100% of the Accreted Value of the Notes, plus accrued and unpaid interest thereon, if any, to the date of purchase), in accordance with the procedures set forth in this Agreement, the maximum principal amount (expressed as a multiple of $1,000) of Notes that may be purchased with the Excess Proceeds, at a purchase price in cash equal to 100% of the principal amount thereof, plus accrued interest, if any, to the date such offer to purchase is consummatedIndenture. To the extent that any Excess Proceeds remain after consummation of an Asset Sale Offer, the Company may use such Excess Proceeds for any purpose not otherwise prohibited by the Indenture. If the aggregate Accreted Value or principal amount amount, as the case may be, of Notes tendered pursuant to such offer to purchase is less than Asset Sale Offer exceeds the amount of Excess Proceeds, the Company may use such deficiency for general corporate purposes. If the aggregate principal amount of Notes validly tendered and not withdrawn by holders thereof exceeds the Excess Proceeds, Trustee shall select the Notes to be purchased will be selected on a pro rata basis. Upon completion of such offer to purchase, the amount of Excess Proceeds will shall be reset to at zero.
(iii) . The Company will shall comply with the requirements of Rule 14e-1 under the Exchange Act and any other securities laws and regulations thereunder to the extent such laws and regulations are applicable in connection with each to the repurchase of Notes pursuant to an Excess Proceeds Asset Sale Offer. To the extent that the provisions of any securities laws or regulations conflict with the Asset Sales Sale provisions of this AgreementIndenture, the Company will shall comply with the applicable securities laws and regulations and will shall not be deemed to have breached its obligations under Section 5(j) the Asset Sale provisions of this Agreement Indenture by virtue of such conflictthereof.
Appears in 1 contract
Asset Sales. (a) The Company will not, and will not permit any of its Restricted Subsidiaries to cause, make or suffer to exist any Asset Sale, unless:
(i) The no Default exists or is continuing immediately prior to and after giving effect to such Asset Sale;
(ii) the Company shall not(or the Restricted Subsidiary, and shall not permit any Restricted Subsidiary to, engage in any as the case may be) receives consideration at the time of such Asset Sale unless at least equal to the fair market value (xevidenced for purposes of this Section 4.10 by a resolution of the Board of Directors set forth in an Officer's Certificate delivered to the Trustee) of the assets sold or otherwise disposed of; and
(iii) at least 80% of the consideration therefor received by the Company or such Restricted Subsidiary for is in the form of (w) Cash Equivalents, (x) Replacement Assets, (y) publicly traded Equity Interests of a Person who is, directly or indirectly, engaged primarily in one or more Cable Businesses; provided, however, that the Company or such Asset Sale is Restricted Subsidiary shall Monetize such Equity Interests by sale to one or more Persons (other than to the Company or a Subsidiary thereof) at a price not less than the fair market value thereof within 180 days of the assets sold evidenced by a resolution of the board of directors of such entity set forth in an Officers' Certificate delivered to the Holders and (y) the consideration received by the Company or the relevant Restricted Subsidiary in respect consummation of such Asset Sale consists Sale, or (z) any combination of at least 75% cash or Cash Equivalents the foregoing clauses (for purposes of this clause w) through (y); provided, cash and Cash Equivalents includes however, that the amount of (A) any liabilities (as reflected in shown on the Company's consolidated or such Restricted Subsidiary's most recent balance sheetsheet or in the notes thereto) of the Company or any Restricted Subsidiary (other than contingent liabilities and liabilities that are by their terms subordinated to the Notes or any GuaranteeNotes) that are assumed by any the transferee of any such assets or other property in such Asset Sale, and where the Company or the relevant Restricted Subsidiary is released from any further liability in connection therewith with respect to such liabilities, (B) any securities, notes or other similar obligations received by the Company or any such Restricted Subsidiary from such transferee that are within five Business Days converted within 180 days of the consummation of the related Asset Sale by the Company or such Restricted Subsidiary into cash and cash, shall be deemed to be Cash Equivalents (to the extent of the net cash proceeds or the Cash Equivalents (net of related costs) received upon in such conversion) and (C) any Designated Noncash Consideration received by the Company or any such Restricted Subsidiary in the Asset Sale having an aggregate fair market value, as determined by the Board for purposes of the Company, taken together with all other Designated Noncash Consideration received pursuant to this clause that is at that time outstanding, not to exceed the greater of:
(1) $10,000,000; and
(2) 15% of Consolidated Tangible Assets at the time of the receipt of such Designated Noncash Consideration (with the fair market value of each item of such Designated Noncash Consideration being measured at the time received and without giving effect to subsequent changes in valueiii).
(iib) If the Company or Within 360 days after any Restricted Subsidiary engages in an Asset Sale, the Company may, at its option, within 12 months after such Asset Sale, (1) apply all or a portion of the Net Cash Proceeds to the permanent reduction of amounts outstanding under the Credit Agreement (and to correspondingly reduce the commitments, if any, with respect thereto) or to the permanent repayment of other Senior Indebtedness of the Company or a Restricted Subsidiary, provided that the repayment of any Indebtedness incurred under the Credit Agreement in connection with the acquisition of any Facility with the proceeds of any subsequent Sale and Leaseback Transaction relating to such Facility shall not be required to result in the permanent reduction of the amounts outstanding under the Credit Agreement or correspondingly permanently reduce the commitments thereunder, or (2) invest (or enter into a legally binding agreement to invest) all or a portion of such Net Cash Proceeds in properties and assets to replace the properties and assets that were the subject of the Asset Sale or in properties and assets that will be used in the businesses of the Company or its Restricted Subsidiaries, as the case may be, existing on ) shall cause the Closing Date or in businesses the same, similar or reasonably related thereto. If any such legally binding agreement to invest such Net Cash Proceeds is terminated, the Company may, within 90 days of such termination or within 12 months of from such Asset Sale, whichever is later, invest such Net Cash Proceeds as provided :
(i) to be used to permanently reduce Indebtedness of a Restricted Subsidiary; or
(ii) to be invested or reinvested in clause (1) or (2) (without regard to the parenthetical contained in such clause (2)) aboveReplacement Assets. Pending the final application of any such Net Cash Proceeds, the Company may temporarily reduce revolving credit borrowings or otherwise invest such Net Cash Proceeds in a any manner that is not prohibited by this AgreementIndenture or the indentures for the Other Qualified Notes. The amount of such Any Net Cash Proceeds from any Asset Sale that are not so used or reinvested as set forth above provided in this paragraph shall the preceding sentence constitute "Excess ProceedsEXCESS PROCEEDS."
(c) " When the aggregate amount of Excess Proceeds exceeds $10,000,00015.0 million, the Company will, within 30 days thereafter, shall make an offer to purchase (an "Excess Proceeds ASSET SALE Offer") from to all Holders holders of Notes and Other Qualified Notes to purchase the maximum principal amount of Notes and Other Qualified Notes (determined on a pro rata basisbasis according to the accreted value or principal amount, as the case may be, of the Notes and the Other Qualified Notes and in accordance with Section 3.09(g)(i)) that may be purchased out of the Excess Proceeds (x) with respect to the Other Qualified Notes, based on the terms set forth in the indenture related to each issue of the Other Qualified Notes and (y) with respect to the Notes, at an offer price in cash in an amount equal to 100.0% 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 this Agreement, the maximum principal amount (expressed as a multiple of $1,000) of Notes that may be purchased with the Excess Proceeds, at a purchase price in cash equal to 100% of the principal amount thereof, plus accrued interest, if any, to the date such offer to purchase is consummatedSection 3.09 hereof. To the extent that the aggregate principal amount or accreted value, as the case may be, of Notes and Other Qualified Notes tendered pursuant to such offer to purchase an Asset Sale Offer is less than the Excess Proceeds, the Company may use such deficiency for general corporate purposes. If the aggregate principal amount or accreted value, as the case may be, of Notes validly tendered and not withdrawn Other Qualified Notes surrendered by holders thereof exceeds the amount of Excess Proceeds, then such remaining Excess Proceeds shall be allocated pro rata according to accreted value or principal amount, as the case may be, to the Notes and each issue of the Other Qualified Notes and in accordance with Section 3.09(g)(ii), and the Trustee shall select the Notes to be purchased will be selected from the amount allocated to the Notes on a pro rata basisthe basis set forth in Section 3.09(e) hereof. Upon completion of such offer offers to purchasepurchase each of the Notes and the Other Qualified Notes, the amount of Excess Proceeds will be reset to at zero.
(iiic) 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 Excess Proceeds Offer. To the extent that Notwithstanding the provisions of any securities laws or regulations conflict with the Asset Sales provisions of this Agreement, Sections 4.10(a) and (b): the Company will comply 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 applied within five Business Days 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 Replacement Assets 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 applicable securities laws Company's Subsidiaries to a Cable Controlled Subsidiary, in each of cases (x) and regulations (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 will not be deemed (B) either (I) the assets so contributed consist solely of a license to have breached 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 obligations under Section 5(jRestricted 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 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; or
(iii) issue, sell, lease, transfer, convey or otherwise dispose of Equity Interests (other than Disqualified Stock) of this Agreement by virtue of such conflictthe Company (or any Capital Stock Sale Proceeds therefrom) to any Person (including Non-Restricted Subsidiaries).
Appears in 1 contract
Samples: Indenture (NTL Communications Corp)
Asset Sales. No Group Member shall Sell any of its property (other than cash) or issue shares of its own Stock, except for the following:
(a) In each case to the extent entered into in the ordinary course of business and made to a Person that is not an Affiliate of the Issuer, (i) The Company shall notSales of Cash Equivalents, inventory or property that has become obsolete or worn out and (ii) non-exclusive licenses of Intellectual Property; provided, that, prior to any Event of Default, each Group Member shall not permit be obligated to maintain, preserve, prosecute, or seek to register or protect any Restricted Subsidiary toIntellectual Property or IP Ancillary Rights in the event the Group Member determines, engage in any Asset its reasonable business judgment, that the maintenance, preservation, prosecution, registration or protection of such Intellectual Property is no longer desirable or necessary in the conduct of its business;
(i) a true lease or sublease of real property not constituting Indebtedness and not entered into as part of a Sale unless and Leaseback Transaction and (xii) a Sale of property pursuant to a Sale and Leaseback Transaction; provided, however, that the consideration received by the Company or such Restricted Subsidiary for such Asset Sale is not less than the aggregate fair market value of the assets sold evidenced by a resolution of the board of directors of such entity set forth in an Officers' Certificate delivered to the Holders and (y) the consideration received by the Company or the relevant Restricted Subsidiary in respect of such Asset Sale consists of at least 75% cash or Cash Equivalents (for purposes of this clause (y), cash and Cash Equivalents includes (A) any liabilities (as reflected in the Company's consolidated balance sheet) of the Company or any Restricted Subsidiary (other than contingent liabilities and liabilities that are by their terms subordinated to the Notes or any Guarantee) that are assumed by any transferee of any such assets or other property in such Asset Sale, and where the Company or the relevant Restricted Subsidiary is released from any further liability in connection therewith with respect to such liabilities, (B) any securities, notes or other similar obligations received by the Company or any such Restricted Subsidiary from such transferee that are converted within 180 days of the consummation of the related Asset Sale by the Company or such Restricted Subsidiary into cash and Cash Equivalents (to the extent of the net cash proceeds or the Cash Equivalents (net of related costs) received upon such conversion) and (C) any Designated Noncash Consideration received by the Company or any such Restricted Subsidiary in the Asset Sale having an aggregate fair market value, as determined by the Board of the Company, taken together with all other Designated Noncash Consideration received pursuant to this clause that is at that time outstanding, not to exceed the greater of:
(1) $10,000,000; and
(2) 15% of Consolidated Tangible Assets measured at the time of the receipt applicable Sale) of all property covered by any outstanding Sale and Leaseback Transaction at any time shall not exceed $300,000;
(i) any Sale of any property (other than their own Stock or Stock Equivalents) by any Group Member to any other Group Member to the extent any resulting Investment constitutes a Permitted Investment, (ii) any Restricted Payment by any Group Member permitted pursuant to Section 8.5 and (iii) any distribution by the Issuer of the proceeds of Restricted Payments from any other Group Member to the extent permitted in Section 8.5;
(d) (i) any Sale or issuance by any Subsidiary of the Issuer of its own Stock to any Group Member, provided, however, that the proportion of such Designated Noncash Consideration Stock and of each class of such Stock (with both on an outstanding and fully-diluted basis) held by the Loan Parties, taken as a whole, does not change as a result of such Sale or issuance and (ii) to the extent necessary to satisfy any Requirement of Law in the jurisdiction of incorporation of any Subsidiary of the Issuer, any Sale or issuance by such Subsidiary of its own Stock constituting directors’ qualifying shares or nominal holdings;
(e) as long as no Default is continuing or would result therefrom, any Sale of property (other than as part of a Sale and Leaseback Transaction and other than Sale or issuance of its own Stock or Stock Equivalents by the Issuer and other than Sale or issuance of its own Stock or Stock Equivalents by any other Group Member to another Group Member as permitted under Section 8.3(f)) by, any Group Member for fair market value of each item of payable in cash upon such Designated Noncash Consideration being measured at sale; provided, however, that the time aggregate consideration received and without giving effect to subsequent changes in value).during any Fiscal Year for all such Sales shall not exceed $1,650,000; and
(iif) If so long as no Default is continuing or would result therefrom, any issuance by Issuer for cash consideration of its own Stock, constituting common stock or if not common stock, Stock that is on terms and conditions and issued pursuant to documentation, acceptable in all respects to the Company or any Restricted Subsidiary engages in an Asset SaleRequired Purchasers, and upon 10 days prior written notice of the Company mayRequired Purchasers, at its option, within 12 months after such Asset Sale, (1) apply all or a portion of the Net Cash Proceeds of which are applied, substantially concurrently upon receipt to (i) the permanent reduction of amounts outstanding under the Credit Agreement (and to correspondingly reduce the commitments, if any, with respect thereto) or to the permanent repayment of other Senior Indebtedness prepayment of the Company Junior Subordinated Notes or a Restricted Subsidiarythe Bridge Notes, provided that the repayment of and any Indebtedness incurred under the Credit Agreement accrued and unpaid interest, fees or expenses payable in connection with the acquisition of any Facility with the proceeds of any subsequent Sale and Leaseback Transaction relating to such Facility shall not be required to result in the permanent reduction of the amounts outstanding under the Credit Agreement or correspondingly permanently reduce the commitments thereunder, therewith or (2ii) invest (or enter into a legally binding agreement to invest) all or a portion of such Net Cash Proceeds in properties and assets to replace the properties and assets that were the subject of the Asset Sale or in properties and assets that will be used in the businesses of the Company or its Restricted Subsidiaries, as the case may be, existing on the Closing Date or in businesses the same, similar or reasonably related thereto. If any such legally binding agreement to invest such Net Cash Proceeds is terminated, the Company may, within 90 days of such termination or within 12 months of such Asset Sale, whichever is later, invest such Net Cash Proceeds as provided in clause (1) or (2) (without regard to the parenthetical contained in such clause (2)) above. Pending the final application of any such Net Cash Proceeds, the Company may temporarily reduce revolving credit borrowings or otherwise invest such Net Cash Proceeds in a manner that is not prohibited by this Agreement. The amount of such Net Cash Proceeds not so used as set forth above in this paragraph shall constitute "Excess Proceeds."
(c) When the aggregate amount of Excess Proceeds exceeds $10,000,000, the Company will, within 30 days thereafter, make an offer to purchase (an "Excess Proceeds Offer") from all Holders of Notes on a pro rata basis, in accordance with the procedures set forth in this Agreement, the maximum principal amount (expressed as a multiple of $1,000) of Notes that may be purchased with the Excess Proceeds, at a purchase price in cash equal to 100% of the principal amount thereof, plus accrued interest, if any, to the date such offer to purchase is consummated. To the extent that the aggregate principal amount of Notes tendered pursuant to such offer to purchase is less than the Excess Proceeds, the Company may use such deficiency for general corporate purposes. If the aggregate principal amount of Notes validly tendered and not withdrawn by holders thereof exceeds the Excess Proceeds, the Notes to be purchased will be selected on a pro rata basis. Upon completion of such offer to purchase, the amount of Excess Proceeds will be reset to zero.
(iii) 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 Excess Proceeds Offer. To the extent that the prepayment provisions of any securities laws or regulations conflict with the Asset Sales provisions of this Agreement, the Company will comply with the applicable securities laws and regulations and will not be deemed to have breached its obligations under Section 5(j) of this Agreement by virtue of such conflict2.6(b).
Appears in 1 contract
Samples: Senior Subordinated Note Purchase Agreement (Princeton Review Inc)
Asset Sales. No Group Member shall Sell any of its property (other than cash) or issue shares of its own Stock, except for the following:
(a) in each case to the extent entered into in the ordinary course of business and made to a Person that is not an Affiliate of the Borrower, (i) The Company shall notSales of Cash Equivalents, or inventory or property that has become obsolete, worn out or is no longer used or useable and shall (ii) non-exclusive licenses of Intellectual Property;
(i) a true lease or sublease of real property not permit any Restricted Subsidiary toconstituting Indebtedness and not entered into as part of a Sale and Leaseback Transaction and (ii) a Sale of property pursuant to a Sale and Leaseback Transaction; provided, engage in any Asset Sale unless (x) however, that the consideration received by the Company or such Restricted Subsidiary for such Asset Sale is not less than the aggregate fair market value of the assets sold evidenced by a resolution of the board of directors of such entity set forth in an Officers' Certificate delivered to the Holders and (y) the consideration received by the Company or the relevant Restricted Subsidiary in respect of such Asset Sale consists of at least 75% cash or Cash Equivalents (for purposes of this clause (y), cash and Cash Equivalents includes (A) any liabilities (as reflected in the Company's consolidated balance sheet) of the Company or any Restricted Subsidiary (other than contingent liabilities and liabilities that are by their terms subordinated to the Notes or any Guarantee) that are assumed by any transferee of any such assets or other property in such Asset Sale, and where the Company or the relevant Restricted Subsidiary is released from any further liability in connection therewith with respect to such liabilities, (B) any securities, notes or other similar obligations received by the Company or any such Restricted Subsidiary from such transferee that are converted within 180 days of the consummation of the related Asset Sale by the Company or such Restricted Subsidiary into cash and Cash Equivalents (to the extent of the net cash proceeds or the Cash Equivalents (net of related costs) received upon such conversion) and (C) any Designated Noncash Consideration received by the Company or any such Restricted Subsidiary in the Asset Sale having an aggregate fair market value, as determined by the Board of the Company, taken together with all other Designated Noncash Consideration received pursuant to this clause that is at that time outstanding, not to exceed the greater of:
(1) $10,000,000; and
(2) 15% of Consolidated Tangible Assets measured at the time of the receipt applicable Sale) of such Designated Noncash Consideration (with the fair market value of each item of such Designated Noncash Consideration being measured at the time received and without giving effect to subsequent changes in value).
(ii) If the Company or all property covered by any Restricted Subsidiary engages in an Asset Sale, the Company may, at its option, within 12 months after such Asset Sale, (1) apply all or a portion of the Net Cash Proceeds to the permanent reduction of amounts outstanding under the Credit Agreement (and to correspondingly reduce the commitments, if any, with respect thereto) or to the permanent repayment of other Senior Indebtedness of the Company or a Restricted Subsidiary, provided that the repayment of any Indebtedness incurred under the Credit Agreement in connection with the acquisition of any Facility with the proceeds of any subsequent Sale and Leaseback Transaction relating to such Facility at any time shall not be required to result in exceed $1,000,000 during the permanent reduction term of the amounts outstanding under the Credit Agreement or correspondingly permanently reduce the commitments thereunderthis Agreement, or (2) invest (or enter into a legally binding agreement to invest) all or a portion of such Net Cash Proceeds in properties and assets to replace the properties and assets that were the subject of the Asset Sale or in properties and assets that will be used in the businesses of the Company or its Restricted Subsidiaries, as the case may be, existing commencing on the Original Closing Date or in businesses the same, similar or reasonably related thereto. If any such legally binding agreement to invest such Net Cash Proceeds is terminated, the Company may, within 90 days of such termination or within 12 months of such Asset Sale, whichever is later, invest such Net Cash Proceeds as provided in clause (1) or (2) (without regard to the parenthetical contained in such clause (2)) above. Pending the final application of any such Net Cash Proceeds, the Company may temporarily reduce revolving credit borrowings or otherwise invest such Net Cash Proceeds in a manner that is not prohibited by this Agreement. The amount of such Net Cash Proceeds not so used as set forth above in this paragraph shall constitute "Excess Proceeds."Date;
(c) When (i) any Sale of any property by any Group Member to any other Group Member (other than Holdings) or by Holdings to the aggregate amount of Excess Proceeds exceeds $10,000,000, the Company will, within 30 days thereafter, make an offer to purchase (an "Excess Proceeds Offer") from all Holders of Notes on a pro rata basisBorrower, in accordance with the procedures set forth in this Agreement, the maximum principal amount (expressed as a multiple of $1,000) of Notes that may be purchased with the Excess Proceeds, at a purchase price in cash equal to 100% of the principal amount thereof, plus accrued interest, if anyeach case, to the date such offer extent any resulting Investment constitutes a Permitted Investment, (ii) any Restricted Payment by any Group Member (other than Holdings) permitted pursuant to purchase is consummated. To Section 8.5, (iii) any distribution by Holdings of the proceeds of Restricted Payments from any other Group Member to the extent permitted in Section 8.5 and (iv) any Sale permitted by Section 8.7;
(d) (i) any Sale or issuance by Holdings of its own Stock, (ii) any Sale or issuance by a Group Member of its own Stock to Holdings, (iii) any Sale or issuance by any Subsidiary of Holdings of its own Stock to any Group Member (other than Holdings), provided, however, that the proportion of such Stock and of each class of such Stock (both on an outstanding and fully-diluted basis) held by the Loan Parties (other than Holdings), taken as a whole, does not change as a result of such Sale or issuance and (iv) to the extent necessary to satisfy any Requirement of Law in the jurisdiction of incorporation of any Subsidiary of Holdings, any Sale or issuance by such Subsidiary of its own Stock constituting directors’ qualifying shares or nominal holdings; and
(e) as long as no Default is continuing or would result therefrom, any Sale of property (other than as part of a Sale and Leaseback Transaction) of, or Sale or issuance of its own Stock by, any Group Member (other than Holdings); provided, however, that the aggregate principal amount of Notes tendered pursuant to consideration received during any Fiscal Year for all such offer to purchase is less than the Excess Proceeds, the Company may use such deficiency for general corporate purposes. If the aggregate principal amount of Notes validly tendered and Sales shall not withdrawn by holders thereof exceeds the Excess Proceeds, the Notes to be purchased will be selected on a pro rata basis. Upon completion of such offer to purchase, the amount of Excess Proceeds will be reset to zeroexceed $1,000,000.
(iii) 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 Excess Proceeds Offer. To the extent that the provisions of any securities laws or regulations conflict with the Asset Sales provisions of this Agreement, the Company will comply with the applicable securities laws and regulations and will not be deemed to have breached its obligations under Section 5(j) of this Agreement by virtue of such conflict.
Appears in 1 contract
Asset Sales. (ia) The Company shall will not, and shall will not permit any of its Restricted Subsidiary Subsidiaries to, engage in any complete an Asset Sale unless unless:
(x1) the consideration received by the Company or such its Restricted Subsidiary for Subsidiary, as the case may be, receives consideration at the time of such Asset Sale is not less than at least equal to the fair market value Fair Market Value, as determined in good faith by the Company, of the assets sold evidenced by a resolution or otherwise disposed of;
(2) at least 75% of the board of directors of such entity set forth in an Officers' Certificate delivered to the Holders and (y) the consideration received by the Company or the relevant Restricted Subsidiary in respect of such the Asset Sale consists is in the form of at least 75% cash or Cash Equivalents Equivalents; and
(for purposes of this clause (y), cash and Cash Equivalents includes (A3) to the extent that any liabilities (as reflected in the Company's consolidated balance sheet) of consideration received by the Company or any Restricted Subsidiary (in such Asset Sale constitutes securities or other than contingent liabilities and liabilities assets that are of a type or class that constitutes Collateral, such securities or other assets are added to the Collateral securing the Notes in the manner and to the extent required by their terms subordinated this Indenture or any of the Collateral Documents with the Lien on such Collateral securing the Notes being of the same priority with respect to the Notes as the Lien on the assets disposed of in the Asset Sale.
(b) For purposes of determining the amount of cash received in an Asset Sale, each of the following shall be deemed to be cash:
(1) the amount of any liabilities on the Company’s or any Guarantee) Restricted Subsidiary’s balance sheet that are assumed by any the transferee of the assets; and
(2) the amount of any such assets notes or other property in such Asset Sale, and where obligations received by the Company or the relevant Restricted Subsidiary from the transferee that is released converted within 180 days by the Company or the Restricted Subsidiary into cash, to the extent of the cash received.
(c) If the Company or any of its Restricted Subsidiaries receives Net Proceeds from an Asset Sale, then within 365 days after the date of receipt of such Net Proceeds, or if the Company or any further liability in connection therewith of its Restricted Subsidiaries has entered into a binding commitment or commitments with respect to any of the actions described in clause (3) below, within the later of (x) 365 days after the date the aggregate amount of Net Proceeds exceeds $15 million or (y) 180 days after the entering into such liabilitiescommitment or commitments, (B) any securities, notes or other similar obligations received by the Company or any such Restricted Subsidiary from must apply the amount of such transferee that are converted within 180 days Net Proceeds in one or more of the consummation of the related Asset Sale by the Company or such Restricted Subsidiary into cash and Cash Equivalents (to the extent of the net cash proceeds or the Cash Equivalents (net of related costs) received upon such conversion) and (C) any Designated Noncash Consideration received by the Company or any such Restricted Subsidiary in the Asset Sale having an aggregate fair market value, as determined by the Board of the Company, taken together with all other Designated Noncash Consideration received pursuant to this clause that is at that time outstanding, not to exceed the greater offollowing ways:
(1) $10,000,000; to repay First Lien Indebtedness (and
, if the Indebtedness repaid is revolving credit Indebtedness, to correspondingly reduce commitments with respect thereto) (2) 15% of Consolidated Tangible Assets at the time of the receipt of such Designated Noncash Consideration (with the fair market value of each item of such Designated Noncash Consideration being measured at the time received and without giving effect to subsequent changes in value).
(ii) If provided that if the Company or any Restricted Subsidiary engages in an Asset SaleGuarantor shall so reduce Obligations under First Lien Indebtedness, the Company maywill equally and ratably reduce Obligations under the Notes pursuant to Section 3.07, through open market purchases (provided that such purchases are at its option, within 12 months after such Asset Sale, (1) apply all or a portion above 100% of the Net Cash Proceeds to the permanent reduction of amounts outstanding under the Credit Agreement (and to correspondingly reduce the commitments, if any, with respect theretoprincipal amount thereof) or to the permanent repayment of other Senior Indebtedness of the Company or a Restricted Subsidiary, provided that the repayment of any Indebtedness incurred under the Credit Agreement in connection with the acquisition of any Facility with the proceeds of any subsequent Sale and Leaseback Transaction relating to such Facility shall not be required to result in the permanent reduction of the amounts outstanding under the Credit Agreement or correspondingly permanently reduce the commitments thereunder, or (2) invest (or enter into a legally binding agreement to invest) all or a portion of such Net Cash Proceeds in properties and assets to replace the properties and assets that were the subject of the Asset Sale or in properties and assets that will be used in the businesses of the Company or its Restricted Subsidiaries, as the case may be, existing on the Closing Date or in businesses the same, similar or reasonably related thereto. If any such legally binding agreement to invest such Net Cash Proceeds is terminated, the Company may, within 90 days of such termination or within 12 months of such Asset Sale, whichever is later, invest such Net Cash Proceeds as provided in clause (1) or (2) (without regard to the parenthetical contained in such clause (2)) above. Pending the final application of any such Net Cash Proceeds, the Company may temporarily reduce revolving credit borrowings or otherwise invest such Net Cash Proceeds in a manner that is not prohibited by this Agreement. The amount of such Net Cash Proceeds not so used as set forth above in this paragraph shall constitute "Excess Proceeds."
(c) When the aggregate amount of Excess Proceeds exceeds $10,000,000, the Company will, within 30 days thereafter, make making an offer to purchase (an "Excess Proceeds Offer") from all Holders of Notes on a pro rata basis, in accordance with the procedures set forth in this Agreement, the maximum principal amount (expressed as a multiple of $1,000below for an Asset Sale Offer) of Notes that may be purchased with the Excess Proceeds, to all Holders to purchase at a purchase price in cash equal to 100% of the principal amount thereof, plus accrued and unpaid interest, the pro rata principal amount of Notes),
(2) if the assets disposed of in the Asset Sale were not Collateral, to repay other Senior Pari Passu Indebtedness (provided that if the Company or any Subsidiary Guarantor shall so reduce Obligations under such other Senior Pari Passu Indebtedness, the Company will equally and ratably reduce Obligations under the Notes pursuant to Section 3.07, through open market purchases (provided that such purchases are at or above 100% of the principal amount thereof) or by making an offer (in accordance with the procedures set forth below for an Asset Sale Offer) to all Holders to purchase at a purchase price equal to 100% of the principal amount thereof, plus accrued and unpaid interest, the pro rata principal amount of Notes), in each case other than Indebtedness owed to the Company or an affiliate of the Company, or
(3) to make an investment (including by acquisition) in assets or capital expenditures used or useful in or related to a Permitted Business; provided, in each case, that to the extent that such assets are of the type that would constitute Collateral, such assets are pledged as Collateral under this Indenture and the Collateral Documents as required thereby with the Lien on such Collateral securing the Notes. Any Net Proceeds from an Asset Sale that are not applied or invested in any of the ways specified in clauses (1), (2) or (3) above will be considered “Excess Proceeds.”
(d) Pending the final application of any Net Proceeds from an Asset Sale, the Company or any Restricted Subsidiary may temporarily reduce borrowings under any revolving Debt Facilities or otherwise invest such Net Proceeds in any manner that is not prohibited by this Indenture.
(1) When the aggregate amount of Excess Proceeds exceeds $15 million, the Issuers will make an offer (an “Asset Sale Offer”) to all Holders (and, at the option of the Company, to holders of any other First Lien Indebtedness and, in the case of an Asset Sale of assets that are not Collateral, to holders of any other Senior Pari Passu Indebtedness), to purchase for cash the maximum principal amount of Notes (and such other First Lien Indebtedness or Senior Pari Passu Indebtedness, as applicable) that may be purchased out of the Excess Proceeds at a purchase price equal to 100% of the principal amount thereof (or, in the event such First Lien Indebtedness or Senior Pari Passu Indebtedness, as applicable, was issued with significant original issue discount, 100% of the accreted value thereof) plus accrued and unpaid interest (or, in respect of such First Lien Indebtedness or Senior Pari Passu Indebtedness, as applicable, such lesser price, if any, to as may be provided for by the terms of such Indebtedness) to, but excluding, the date such offer to purchase is consummated. of purchase.
(2) To the extent that the amount of Excess Proceeds exceeds the aggregate principal amount of Notes (and such First Lien Indebtedness or Senior Pari Passu Indebtedness, as applicable) tendered pursuant in response to such offer to purchase is less than the Excess ProceedsAsset Sale Offer, the Company or any Restricted Subsidiary may use such deficiency excess amount for general corporate business purposes. If the aggregate principal amount of Notes validly (and such First Lien Indebtedness or Senior Pari Passu Indebtedness, as applicable) tendered and not withdrawn by holders thereof in response to such Asset Sale Offer exceeds the amount of Excess Proceeds, the Issuers shall purchase Notes and any such other First Lien Indebtedness or Senior Pari Passu Indebtedness, as applicable, on a pro rata basis in proportion to the aggregate principal amount of the Notes and such First Lien Indebtedness or Senior Pari Passu Indebtedness, as applicable, tendered, and the Trustee shall select the Notes to be purchased will be selected on a pro rata basisin accordance with the procedures for selection and notice of redemption set forth in Section 3.02. Upon completion of such offer to purchaseany Asset Sale Offer, the amount of Excess Proceeds will shall be reset to at zero.
(iii1) The Company Asset Sale Offer shall be made to all Holders and all holders of such other First Lien Indebtedness or Senior Pari Passu Indebtedness, as applicable. The Asset Sale Offer will remain open for a period of at least 20 Business Days following its commencement and not more than 30 Business Days, except to the extent that a longer period is required by applicable law (the “Offer Period”). No later than three Business Days after the termination of the Offer Period (the “Purchase Date”), the Issuers will apply all Excess Proceeds (the “Offer Amount”) to the purchase of Notes and such other First Lien Indebtedness or Senior Pari Passu Indebtedness, as applicable (on a pro rata basis, if applicable) or, if less than the Offer Amount has been tendered, all Notes and such other Indebtedness tendered in response to the Asset Sale Offer. Payment for any Notes so purchased will be made in the same manner as interest payments are made.
(2) If the Purchase Date is on or after an interest record date and on or before the related interest payment date, any accrued and unpaid interest will be paid to the Person in whose name a Note is registered at the close of business on such record date, and no additional interest will be payable to Holders who tender Notes pursuant to the Asset Sale Offer.
(3) Upon the commencement of an Asset Sale Offer, the Issuers will send, by first class mail, a notice to the Trustee and each of the Holders, with a copy to the Trustee. The notice will contain all instructions and materials necessary to enable such Holders to tender Notes pursuant to the Asset Sale Offer. The notice, which will govern the terms of the Asset Sale Offer, will state:
(A) that the Asset Sale Offer is being made pursuant to this Section 4.10 and the length of time the Asset Sale Offer will remain open;
(B) the Offer Amount, the purchase price and the Purchase Date;
(C) that any Note not tendered or accepted for payment will continue to accrue interest;
(D) that, unless the Issuers default in making such payment, any Note accepted for payment pursuant to the Asset Sale Offer will cease to accrue interest after the Purchase Date;
(E) that Holders electing to have a Note purchased pursuant to an Asset Sale Offer may elect to have Notes purchased only in denominations of $2,000 and integral multiples of $1,000 in excess thereof;
(F) that Holders electing to have a Note purchased pursuant to any Asset Sale Offer will be required to surrender the Note, with the form entitled “Option of Holder to Elect Purchase” on the reverse of the Note completed, or transfer by book-entry transfer, to the Issuers, a Depositary, if appointed by the Issuers, or a Paying Agent at the address specified in the notice at least three days before the Purchase Date;
(G) that Holders will be entitled to withdraw their election if the Issuers, the Depositary or the Paying Agent, as the case may be, receives, not later than the expiration of the Offer Period, a facsimile transmission or letter setting forth the name of the Holder, the principal amount of the Note the Holder delivered for purchase and a statement that such Holder is withdrawing his election to have such Note purchased;
(H) that, if the aggregate principal amount of Notes and other Senior Pari Passu Indebtedness surrendered by Holders exceeds the Offer Amount, the Issuers will select the Notes and other Senior Pari Passu Indebtedness to be purchased on a pro rata basis based on the principal amount of Notes and such other Senior Pari Passu Indebtedness surrendered (with such adjustments as may be deemed appropriate by the Issuers so that only Notes in denominations of $2,000, or integral multiples in excess thereof, will be purchased); and
(I) that Holders whose Notes were purchased only in part will be issued new Notes equal in principal amount to the unpurchased portion of the Notes surrendered (or transferred by book-entry transfer).
(4) On or before the Purchase Date, the Issuers will, to the extent lawful, accept for payment, on a pro rata basis to the extent necessary, the Offer Amount of Notes or portions thereof tendered pursuant to the Asset Sale Offer, or if less than the Offer Amount has been tendered, all Notes tendered, and will deliver to the Trustee an Officers’ Certificate stating that such Notes or portions thereof were accepted for payment by the Issuers in accordance with the terms of this Section 4.10. The Issuers, the Depositary or the Paying Agent, as the case may be, will promptly (but in any case not later than five days after the Purchase Date) mail or deliver to each tendering Holder an amount equal to the purchase price of the Notes tendered by such Holder and accepted by the Issuers for purchase, and the Issuers will promptly issue a new Note, and the Trustee, upon written request from the Issuers, will authenticate and mail or deliver such new Note to such Holder, in a principal amount equal to any unpurchased portion of the Note surrendered. Any Note not so accepted shall be promptly mailed or delivered by the Issuers to the Holder thereof. The Issuers will publicly announce the results of the Asset Sale Offer on the Purchase Date.
(g) In connection with any Asset Sale Offer, the Issuers will follow the procedures set forth in this Indenture and will comply with the requirements of Rule 14e-1 under the Exchange Act and any other applicable securities laws and regulations thereunder to the extent such laws and regulations are applicable in connection with each repurchase of Notes pursuant to an Excess Proceeds Offerthereunder. To the extent that the provisions of any securities laws or regulations conflict with the Asset Sales provisions of this AgreementSection 4.10, the Company Issuers will comply with the applicable securities laws and regulations and will not be deemed to have breached its their obligations under this Section 5(j) of this Agreement 4.10 by virtue of such conflict.
Appears in 1 contract
Asset Sales. If the Company or any Restricted Subsidiary, in a single transaction or a series of related transactions:
(a) sells, leases (in a manner that has the effect of a disposition), conveys or otherwise disposes of any of its assets (including by way of a sale-and-leaseback transaction), other than: (i) The sales or other dispositions of inventory in the ordinary course of business; (ii) sales or other dispositions to the Company shall not, and shall not permit any or a Wholly-Owned Restricted Subsidiary to, engage in any Asset Sale unless (x) of the consideration received Company by the Company or such any Restricted Subsidiary Subsidiary; (iii) sales or other dispositions of accounts receivable to DNCC for such Asset Sale is not less than cash in an amount at least equal to the fair market value of such accounts receivable; (iv) sales or other dispositions of rights to construct or launch satellites; and (v) sales or other dispositions permitted under Section 4.21 of this Indenture (provided that the sale, lease, conveyance or other disposition of all or substantially all of the assets sold of the Company shall be governed by the provisions of Article 5 of this Indenture);
(b) issues or sells Equity Interests of any Restricted Subsidiary (other than any issue or sale of Equity Interests of ETC or a Subsidiary which constitutes a Non-Core Asset permitted under Section 4.21 of this Indenture); in either case, which assets or Equity Interests: (i) have a fair market value in excess of $50 million (as determined in good faith by the Board of Directors of the Company evidenced by a resolution of the board Board of directors Directors of such entity the Company and set forth in an Officers' Certificate delivered to the Holders Trustee); or (ii) are sold or otherwise disposed of for net proceeds in excess of $50 million (each of the foregoing, an "Asset Sale"), then:
(A) The Company or such Restricted Subsidiary, as the case may be, must receive consideration at the time of such Asset Sale at least equal to the fair market value (as determined in good faith by the Board of Directors of the Company evidenced by a resolution of the Board of Directors of the Company) and set forth in an Officers' Certificate delivered to the Trustee not later than ten business days following a request from the Trustee which certificate shall cover each Asset Sale made in the six months preceding the date of request of the assets sold or otherwise disposed of; and
(yB) at least 75% of the consideration therefor received by the Company or such Restricted Subsidiary, as the relevant case may be, must be in the form of (x) cash, Cash Equivalents or Marketable Securities, (y) any asset which is promptly (and in no event later than 90 days after the date of transfer to the Company or a Restricted Subsidiary in respect Subsidiary) converted into cash; provided that to the extent that such conversion is at a price that is less than the fair market value (as determined above) of such asset at the time of the Asset Sale consists in which such asset was acquired, the Company shall be deemed to have made a Restricted Payment in the amount by which such fair market value exceeds the cash received upon conversion; and/or (z) properties and capital assets (excluding Equity Interests) to be used by the Company or any of its Restricted Subsidiaries in a business permitted under Section 4.17 of this Indenture; provided, however, that up to $40 million of assets in addition to assets specified in clauses (x), (y) or (z) above at least 75% any one time may be considered to be cash or Cash Equivalents (for purposes of this clause (yB), provided that the provisions of the next paragraph are complied with as such non-cash and Cash Equivalents includes (A) assets are converted to cash. The amount of any liabilities (as reflected in the Company's consolidated balance sheet) of the Company or any Restricted Subsidiary (other than contingent liabilities and liabilities that are by their terms subordinated to the Notes or any Guarantee) that are assumed by any or on behalf of the transferee of any such assets or other property in such connection with an Asset Sale, Sale (and where from which the Company or the relevant such Restricted Subsidiary is released unconditionally released) shall be deemed to be cash for the purpose of this clause (B). The Net Proceeds from such Asset Sale shall be used only: (i) to acquire assets used in, or stock or other ownership interests in a Person that upon the consummation of such Asset Sale becomes a Restricted Subsidiary and will be engaged primarily in, the business of the Company as described under Section 4.17 of this Indenture, to repurchase the Notes or 1999 Notes or if the Company sells any of its satellites after launch such that the Company or its Restricted Subsidiaries own less than three in-orbit satellites, only to purchase a replacement satellite; or (ii) as set forth in the next sentence. Any Net Proceeds from any further liability Asset Sale that are not applied or invested as provided in connection therewith the preceding sentence within 365 days after such Asset Sale shall constitute "Excess Proceeds" and shall be applied to an offer to purchase Notes and other senior Indebtedness of the Company if and when required under Section 3.09 of this Indenture. Clause (B) of the second preceding paragraph shall not apply to all or such portion of the consideration: (i) as is properly designated by the Company in an Asset Sale as being subject to this paragraph; and (ii) with respect to such liabilities, (B) any securities, notes or other similar obligations which the aggregate fair market value at the time of receipt of all consideration received by the Company or any such Restricted Subsidiary from in all such transferee Asset Sales so designated does not exceed the amount that the Company and its Subsidiaries are converted within 180 days permitted to designate as a result of the consummation cash contributions made to the Company by EchoStar pursuant to the 1999 Notes Indentures, plus, to the extent any such consideration did not satisfy clauses (B)(x) or (B)(z) above, upon the exchange or repayment of such consideration for or with assets which satisfy such clauses, an amount equal to the fair market value of such consideration (evidenced by a resolution of the related Board of Directors of the Company and set forth in an Officers' Certificate delivered to the Trustee as set forth in clause (A) above). In addition, clause (B) above shall not apply to any Asset Sale by Sale: (x) where assets not essential to the direct broadcast satellite business are contributed to a joint venture between the Company or one of its Restricted Subsidiaries and a third party that is not an Affiliate of EchoStar or any of its Subsidiaries; provided that following the sale, lease, conveyance or other disposition the Company or one of its Wholly Owned Restricted Subsidiaries owns at least 50% of the voting and equity interest in such Restricted Subsidiary into cash and Cash Equivalents joint venture, (y) to the extent of the net cash proceeds or the Cash Equivalents (net of related costs) received upon such conversion) and (C) any Designated Noncash Consideration consideration therefor received by the Company or any such a Restricted Subsidiary in the Asset Sale having an aggregate fair market value, as determined by the Board would constitute Indebtedness or Equity Interests of the Company, taken together with all other Designated Noncash Consideration received pursuant to this clause a Person that is at that time outstandingnot an Affiliate of EchoStar, not to exceed the greater of:
(1) $10,000,000; and
(2) 15% of Consolidated Tangible Assets at the time of the receipt of such Designated Noncash Consideration (with the fair market value of each item of such Designated Noncash Consideration being measured at the time received and without giving effect to subsequent changes in value).
(ii) If the Company or any Restricted Subsidiary engages in an Asset Sale, the Company may, at its option, within 12 months after such Asset Sale, (1) apply all or a portion one of the Net Cash Proceeds to the permanent reduction of amounts outstanding under the Credit Agreement (and to correspondingly reduce the commitments, if any, with respect thereto) or to the permanent repayment of other Senior Indebtedness of the Company or a Restricted Subsidiary, their respective Subsidiaries; provided that the repayment of any Indebtedness incurred under the Credit Agreement in connection with the acquisition of any Facility with the proceeds of any subsequent Sale and Leaseback Transaction relating to such Facility shall not be required to result in the permanent reduction of the amounts outstanding Indebtedness or Equity Interests is permitted under the Credit Agreement or correspondingly permanently reduce the commitments thereunder, or (2) invest (or enter into a legally binding agreement to invest) all or a portion of such Net Cash Proceeds in properties and assets to replace the properties and assets that were the subject of the Asset Sale or in properties and assets that will be used in the businesses of the Company or its Restricted Subsidiaries, as the case may be, existing on the Closing Date or in businesses the same, similar or reasonably related thereto. If any such legally binding agreement to invest such Net Cash Proceeds is terminated, the Company may, within 90 days of such termination or within 12 months of such Asset Sale, whichever is later, invest such Net Cash Proceeds as provided in clause (1) or (2) (without regard to the parenthetical contained in such clause (2)) above. Pending the final application of any such Net Cash Proceeds, the Company may temporarily reduce revolving credit borrowings or otherwise invest such Net Cash Proceeds in a manner that is not prohibited by this Agreement. The amount of such Net Cash Proceeds not so used as set forth above in this paragraph shall constitute "Excess Proceeds."
(c) When the aggregate amount of Excess Proceeds exceeds $10,000,000, the Company will, within 30 days thereafter, make an offer to purchase (an "Excess Proceeds Offer") from all Holders of Notes on a pro rata basis, in accordance with the procedures set forth in this Agreement, the maximum principal amount (expressed as a multiple of $1,000) of Notes that may be purchased with the Excess Proceeds, at a purchase price in cash equal to 100% of the principal amount thereof, plus accrued interest, if any, to the date such offer to purchase is consummated. To the extent that the aggregate principal amount of Notes tendered pursuant to such offer to purchase is less than the Excess Proceeds, the Company may use such deficiency for general corporate purposes. If the aggregate principal amount of Notes validly tendered and not withdrawn by holders thereof exceeds the Excess Proceeds, the Notes to be purchased will be selected on a pro rata basis. Upon completion of such offer to purchase, the amount of Excess Proceeds will be reset to zero.
(iii) 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 Excess Proceeds Offer. To the extent that the provisions of any securities laws or regulations conflict with the Asset Sales provisions Section 4.07 of this AgreementIndenture and (z) where assets sold are satellites, uplink centers or call centers, provided that, in the case of clause (z) the Company will comply with the applicable securities laws and regulations its Restricted Subsidiaries continue to own at least three satellites, one uplink center and will not be deemed to have breached its obligations under Section 5(j) of this Agreement by virtue of such conflictone call center.
Appears in 1 contract
Asset Sales. (ia) The Company shall will not, and shall will not permit any of its Restricted Subsidiary Subsidiaries to, engage in any consummate an Asset Sale unless unless:
(x1) the consideration received by the Company or such the applicable Restricted Subsidiary for 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 or prior to the time of such Asset Sale is not less than at least equal to the fair market value (measured as of the date of the definitive agreement with respect to such Asset Sale) of the assets sold evidenced or otherwise disposed of (as determined in good faith by a resolution the Company’s Board of Directors if the board fair market value is $25.0 million or more);
(2) at least 75% of directors of such entity set forth in an Officers' Certificate delivered to the Holders and (y) the consideration received by the Company or the relevant Restricted Subsidiary in respect of Subsidiary, as the case may be, from such Asset Sale consists shall be in the form of at least 75% cash or Cash Equivalents (for and shall be received at or prior to the time of such disposition. For purposes of this clause (y2), cash and Cash Equivalents includes each of the following shall be deemed to be cash:
(Ai) any liabilities (liabilities, as reflected in the Company's most recent consolidated balance sheetsheet (or in the notes thereto) of the Company or any Restricted Subsidiary (or would be reflected on such consolidated balance sheet (or in the notes thereto) as of the date of such Asset Sale), other than contingent liabilities and liabilities that are by their terms subordinated to the Notes or any GuaranteeNote Guarantee or (ii) any guarantees of Indebtedness of Persons other than the Company or any Restricted Subsidiary, in each case, that are assumed by any transferee of any the Person acquiring such assets or other property in such Asset Sale, and where to the extent that the Company or the relevant and its Restricted Subsidiary is released from any Subsidiaries have no further liability in connection therewith with respect to such liabilities, ;
(B) any securities, notes or other similar obligations received by the Company or any such Restricted Subsidiary from such transferee that are converted within 180 days of the consummation of the related Asset Sale by the Company or such Restricted Subsidiary into cash and or Cash Equivalents (to the extent of the net cash proceeds or the Cash Equivalents (net of related costsreceived) received upon such conversion) and within 270 days after receipt; and
(C) any Designated Noncash Non-Cash Consideration received by the Company or any its Restricted Subsidiaries in such Restricted Subsidiary in the Asset Sale having an aggregate fair market value, as determined by the Board of the CompanyFair Market Value, taken together with all other Designated Noncash Non-Cash Consideration received pursuant to this clause (C) that is at that time outstanding, in the aggregate, not to exceed the greater of:
(1) of $10,000,000; and
(2) 1530.0 million and 3.0% of Consolidated Tangible Total Assets at the time of the receipt of such Designated Noncash Consideration (Non-Cash Consideration, with the fair market value Fair Market Value of each item of such Designated Noncash Non-Cash Consideration being measured at the time received and without giving effect to subsequent changes in value).;
(ii3) If upon the Company or any Restricted Subsidiary engages in consummation of an Asset Sale, the Company mayshall apply, at its optionor cause such Restricted Subsidiary to apply, within 12 months after such Asset Sale, (1) apply all or a portion of the Net Cash Proceeds relating to the permanent reduction such Asset Sale within 365 days of amounts outstanding under the Credit Agreement receipt thereof either:
(and A) to correspondingly reduce the commitments, if any, with respect thereto(x) or to the permanent repayment of other Senior repay Indebtedness of the Company or a and its Restricted Subsidiary, provided that Subsidiaries under any Credit Facility and in the repayment case of any such Indebtedness incurred under any revolving credit facility effect a permanent reduction in the availability under such revolving credit facility (provided, however, that, if there shall not be any term loan indebtedness outstanding under any Credit Agreement Facility, in connection with the acquisition case of such Indebtedness under any Facility with the proceeds of any subsequent Sale and Leaseback Transaction relating to revolving credit facility such Facility prepayment shall not be required to result effect a permanent reduction in the permanent reduction availability under such revolving credit facility), (y) repay or reduce Indebtedness of a Restricted Subsidiary of the amounts outstanding under Company that does not guarantee the Credit Agreement or correspondingly permanently reduce the commitments thereunder, Notes or (2z) invest repay indebtedness secured in whole or in part by the assets or Capital Stock sold in such Asset Sale;
(B) to acquire or enter into a legally binding agreement to invest) all or a portion of such Net Cash Proceeds make an investment in properties and or assets to that replace the properties and assets that were the subject of the such Asset Sale or make an investment in properties or assets (including Capital Stock) that will be used or are useful, in the good faith judgment of the Board of Directors of the Company, in the business of the Company and its Restricted Subsidiaries as they are engaged in on the Issue Date or in businesses reasonably related, incidental, ancillary or complimentary thereto (“Replacement Assets”) or to make capital expenditures with respect to properties or assets that are used in or will be used in the businesses business of the Company or its any Restricted SubsidiariesSubsidiary; provided that, as in the case may beof this clause (B), existing on the Closing Date or in businesses the same, similar or reasonably related thereto. If any such legally a binding agreement to invest such Net Cash Proceeds is terminated, the Company may, commitment within 90 365 days of such termination or within 12 months the date of such Asset Sale, whichever is later, invest such Net Cash Proceeds as provided in clause (1) or (2) (without regard to the parenthetical contained in such clause (2)) above. Pending the final application of any such Net Cash Proceeds, the Company may temporarily reduce revolving credit borrowings or otherwise invest such Net Cash Proceeds in a manner that is not prohibited by this Agreement. The amount receipt of such Net Cash Proceeds not shall be treated as a permanent application of the Net Cash Proceeds from the date of such commitment so used long as set forth above the Company or such other Restricted Subsidiary enters into such commitment with the good faith expectation that such Net Cash Proceeds will be applied to satisfy such commitment within 180 days of such commitment (an “Acceptable Commitment”) and, in this paragraph shall constitute "Excess Proceeds."
(c) When the aggregate amount of Excess event that any Acceptable Commitment is later cancelled or terminated for any reason before such Net Cash Proceeds exceeds $10,000,000are applied, the Company willor such other 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 Cash Proceeds are applied, then such Net Cash Proceeds shall constitute part of the Net Proceeds Offer Amount if not otherwise applied as provided above within 30 365 days thereafterof the receipt of such Net Cash Proceeds; or
(C) a combination of prepayment and investment permitted by the foregoing clauses (3)(A) and (3)(B).
(b) Subject to Section 4.10(c), if any Net Cash Proceeds have not been applied as provided in clauses (3)(A), (3)(B) and (3)(C) of Section 4.10(a) within the applicable time period or the last provision of this sentence, such Net Cash Proceeds shall be applied by the Company or such Restricted Subsidiary to make an offer to purchase (an "Excess the “Net Proceeds Offer"”) to all Holders and, to the extent required by the terms of any Pari Passu Indebtedness, to holders of such Pari Passu Indebtedness, on a date (the “Net Proceeds Offer Payment Date”) not less than 30 nor more than 60 days following the date that triggered the Company’s obligation to make such Net Proceeds Offer, from all Holders (and holders of Notes any such Pari Passu Indebtedness) on a pro rata basisbasis based upon the respective outstanding aggregate principal amounts (or accreted value, in accordance with as applicable) of the procedures set forth in this AgreementNotes and Pari Passu Indebtedness on the date the Net Proceeds Offer is made, the maximum principal amount (expressed or accreted value, as a multiple of $1,000applicable) of Notes and Pari Passu Indebtedness that may be purchased with the Excess Proceeds, Net Proceeds Offer Amount at a purchase price in cash equal to 100% of the principal amount thereof(or accreted value, as applicable) of the Notes and Pari Passu Indebtedness to be purchased, plus accrued interestand unpaid interest thereon, if any, to but excluding the date of purchase; provided, however, that if at any time any non-cash consideration received by the Company or any Restricted Subsidiary of the Company, as the case may be, in connection with any Asset Sale is converted into or sold or otherwise disposed of for cash (other than interest received with respect to any such offer non-cash consideration), then such conversion or disposition shall be deemed to purchase constitute an Asset Sale hereunder and the Net Cash Proceeds thereof shall be applied in accordance with this Section 4.10.
(c) The Company may make a Net Proceeds Offer at any time and from time to time in advance of its obligation to make a Net Proceeds Offer pursuant to Section 4.10(b). The Company may also defer any Net Proceeds Offer until there is consummatedan aggregate unutilized Net Proceeds Offer amount equal to or in excess of $25.0 million resulting from one or more Asset Sales (at which time, the entire unutilized Net Proceeds Offer amount, and not just the amount in excess of $25.0 million, shall be applied as required pursuant to this paragraph). Upon completion of each Net Proceeds Offer, the amount of unutilized Net Proceeds Offer amount will be reset at zero.
(d) In the event of the transfer of substantially all (but not all) of the property and assets of the Company and its Restricted Subsidiaries as an entirety to a Person in a transaction permitted under Section 5.01, which transaction does not constitute a Change of Control, the Surviving Entity shall be deemed to have sold the properties and assets of the Company and its Restricted Subsidiaries not so transferred for purposes of this Section 4.10 and shall comply with the provisions of this Section 4.10 with respect to such deemed sale as if it were an Asset Sale. In addition, the fair market value of such properties and assets of the Company or its Restricted Subsidiaries deemed to be sold shall be deemed to be Net Cash Proceeds for purposes of this Section 4.10.
(e) Notwithstanding Sections 4.10(a) and 4.10(b), the Company and its Restricted Subsidiaries will be permitted to consummate an Asset Sale without complying with such sections to the extent that:
(1) at least 75% of the consideration for such Asset Sale constitutes Replacement Assets; and
(2) such Asset Sale is for fair market value; provided that any consideration not constituting Replacement Assets received by the Company or any of its Restricted Subsidiaries in connection with any Asset Sale permitted to be consummated under this Section 4.10(e) shall constitute Net Cash Proceeds subject to the provisions of Sections 4.10(a) and 4.10(b).
(f) Each Net Proceeds Offer will be sent to the record Holders as shown on the register of Holders within 25 days following the date triggering the Company obligation to make such Net Proceeds Offer, with a copy to the Trustee, and shall comply with the procedures set forth in this Indenture. Upon receiving notice of the Net Proceeds Offer, Holders may elect to tender their Notes in whole or in part in integral multiples of $2,000 in exchange for cash. To the extent that Holders properly tender Notes in an amount exceeding the aggregate principal amount pro rata portion of Notes tendered pursuant the Net Proceeds Offer Amount applicable to such offer to purchase is less than the Excess ProceedsNotes, the Company may use such deficiency for general corporate purposes. If tendered Notes will be purchased in accordance with the aggregate principal amount of Notes validly tendered and not withdrawn by holders thereof exceeds the Excess Proceeds, Applicable Procedures if the Notes to be purchased will be selected are in global form or, if there are no such Applicable Procedures, on a pro rata basisbasis (based on amounts tendered). Upon completion A Net Proceeds Offer shall remain open for a period of at least 20 Business Days or such offer to purchase, the amount of Excess Proceeds will longer period as may be reset to zerorequired by law.
(iiig) 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 the repurchase of Notes pursuant to an Excess a Net Proceeds Offer. To the extent that the provisions of any securities laws or regulations conflict with the Asset Sales provisions of this AgreementSection 4.10, the Company will shall comply with the applicable securities laws and regulations and will shall not be deemed to have breached its obligations under this Section 5(j) of this Agreement 4.10 by virtue of such conflictthereof.
Appears in 1 contract
Samples: Indenture (Carriage Services Inc)
Asset Sales. (i) The Company shall will not, and shall will not permit any of its Restricted Subsidiary Subsidiaries to, engage in any consummate an Asset Sale unless unless:
(x1) the Company (or the Restricted Subsidiary, as the case may be) receives consideration at the time of the Asset Sale at least equal to the Fair Market Value of the assets or Equity Interests issued or sold or otherwise disposed of; and
(2) at least 75% of the consideration received in the Asset Sale by the Company or such Restricted Subsidiary for such is in the form of cash or Cash Equivalents, provided that if the aggregate consideration received in the Asset Sale is not less than the fair market value $15.0 million, this condition will be satisfied if at least 70% of the assets sold evidenced by a resolution of the board of directors of such entity set forth in an Officers' Certificate delivered to the Holders and (y) the consideration received in the Asset Sale by the Company or the relevant such Restricted Subsidiary is in respect the form of such Asset Sale consists of at least 75% cash or Cash Equivalents (for Equivalents. For purposes of this clause (y)provision, cash and Cash Equivalents includes each of the following shall be deemed to be cash:
(A) any liabilities (as reflected in the Company's consolidated balance sheet) of the Company or any Restricted Subsidiary (other than contingent liabilities and liabilities that are by their terms subordinated to the Notes or any Subsidiary Guarantee) that are assumed by any the transferee of any such assets or other property in such Asset Sale, and where as a result of which the Company or the relevant such Restricted Subsidiary is released from any further liability in connection therewith with respect to such liabilities, liability;
(B) any securities, notes or other similar obligations received by the Company or any such Restricted Subsidiary from such transferee that are are, within 120 days, converted within 180 days of the consummation of the related Asset Sale by the Company or such Restricted Subsidiary into cash and or Cash Equivalents (Equivalents, to the extent of the net cash proceeds or the Cash Equivalents (net of related costs) received upon such in that conversion) and ;
(C) any 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;
(D) any assets that are not classified as current assets under GAAP and that are used or useful in a Permitted Business; and
(E) any Designated Noncash Non-cash Consideration received by the Company or any such Restricted Subsidiary in the such Asset Sale having an aggregate fair market value, as determined by the Board of the Company, taken together with all other Designated Noncash Non-cash Consideration received pursuant to this clause (e) that is at that time outstanding, not to exceed the greater of:
(1) $10,000,000; and
(2) 15% of Consolidated Tangible Assets 25.0 million at the time of the receipt of such Designated Noncash Consideration (Non-cash Consideration, with the fair market value of each item of such Designated Noncash Non-cash Consideration being measured at the time received and without giving effect to subsequent changes in value).
(ii) If . Within 365 days after the Company or receipt of any Restricted Subsidiary engages in Net Proceeds from an Asset Sale, the Company may, at its option, within 12 months after such Asset Sale, (1) apply all or a portion of the Net Cash Proceeds to the permanent reduction of amounts outstanding under the Credit Agreement (and to correspondingly reduce the commitments, if any, with respect thereto) or to the permanent repayment of other Senior Indebtedness of the Company or a applicable Restricted Subsidiary, provided that the repayment of any Indebtedness incurred under the Credit Agreement in connection with the acquisition of any Facility with the proceeds of any subsequent Sale and Leaseback Transaction relating to such Facility shall not be required to result in the permanent reduction of the amounts outstanding under the Credit Agreement or correspondingly permanently reduce the commitments thereunder, or (2) invest (or enter into a legally binding agreement to invest) all or a portion of such Net Cash Proceeds in properties and assets to replace the properties and assets that were the subject of the Asset Sale or in properties and assets that will be used in the businesses of the Company or its Restricted Subsidiaries, as the case may be, existing on the Closing Date or in businesses the same, similar or reasonably related thereto. If any such legally binding agreement ) may apply an amount equal to invest such those Net Cash Proceeds is terminated, the Company may, within 90 days of such termination or within 12 months of such Asset Sale, whichever is later, invest such Net Cash Proceeds as provided in clause at its option:
(1) or to repay Indebtedness and other obligations under a Credit Facility and, if the Indebtedness repaid is revolving credit Indebtedness, to correspondingly reduce commitments with respect thereto;
(2) to acquire all or substantially all of the assets of, or 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;
(without regard 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; or
(5) to repurchase the parenthetical contained Notes and to repurchase or repay other Senior Debt containing provisions similar to those set forth in such clause this Indenture with respect to offers to purchase or redeem with the proceeds of sales of assets, or enter into a binding commitment regarding clauses (2), (3) or (4) above, provided that such binding commitment shall be treated as a permitted application of Net Proceeds from the date of such commitment until and only until the earlier of (x) the date on which such acquisition or expenditure is consummated and (y) the 180th day following the expiration of the aforementioned 365 day period. If such acquisition or expenditure is not consummated on or before such 180th day and the Company or such Restricted Subsidiary shall not have applied an amount equal to such Net Proceeds pursuant to clause (1)-(4) of this paragraph on or before such 180th day, such commitment shall be deemed not to have been a permitted application of Net Proceeds. Pending the final application of any such Net Cash Proceeds, the Company may temporarily reduce revolving credit borrowings or otherwise invest such Net Cash Proceeds in a any manner that is not prohibited by this AgreementIndenture. The amount of such Any Net Cash Proceeds from Asset Sales that are not so used applied or invested as set forth above provided in this the preceding paragraph shall will constitute "“Excess Proceeds."
(c) ” When the aggregate amount of Excess Proceeds exceeds $10,000,00025.0 million, the Company will, within 30 days thereafter, will make an offer Asset Sale Offer to purchase (an "Excess Proceeds Offer") from all Holders of Notes and all holders of other Indebtedness that is pari passu with the Notes containing provisions similar to those set forth in this Indenture with respect to offers to purchase or redeem with the proceeds of sales of assets in accordance with Section 3.09 hereof to purchase the maximum principal amount of Notes and such other pari passu Indebtedness that may be purchased out of the Excess Proceeds. The offer price in any Asset Sale Offer will be equal to 100% of principal amount plus accrued and unpaid interest, if any, to, but excluding, the date of purchase, and will be payable in cash (subject to the right of Holders to receive interest due on the relevant interest payment date). With respect to any Asset Sale Offer, the Excess Proceeds shall be applied (i) first to purchase or redeem the maximum principal amount of Notes and such other Indebtedness pari passu with the Notes (on a pro rata basis, in accordance with the procedures set forth in this Agreementif applicable) and (ii) second, if any Excess Proceeds remain following such purchase or redemption, to purchase or redeem the maximum principal amount (expressed as a multiple of $1,000) of Notes that may be purchased and such other Indebtedness pari passu with the Senior Subordinated Notes. If any Excess Proceeds, at a purchase price in cash equal to 100% Proceeds remain after consummation of the principal amount thereof, plus accrued interest, if any, to the date such offer to purchase is consummated. To the extent that the aggregate principal amount of Notes tendered pursuant to such offer to purchase is less than the Excess Proceedsan Asset Sale Offer, the Company may use such deficiency Excess Proceeds for general corporate purposesany purpose not otherwise prohibited by this Indenture. If the aggregate principal amount of Notes validly and other Indebtedness pari passu with the Notes tendered and not withdrawn by holders thereof into such Asset Sale Offer exceeds the amount of Excess Proceeds, the Trustee will select the Notes and such other Indebtedness pari passu with the Notes to be purchased on a pro rata basis. If the aggregate principal amount of Senior Subordinated Notes and other Indebtedness pari passu with the Senior Subordinated Notes tendered into such Asset Sale Offer exceeds the amount of Excess Proceeds following the purchase in full of all of the Notes and other Indebtedness pari passu with the Notes, the Trustee will select the Senior Subordinated Notes and such other Indebtedness pari passu with the Senior Subordinated Notes to be selected purchased on a pro rata basis. Upon completion of such offer to purchaseeach Asset Sale Offer, the amount of Excess Proceeds will shall be reset to at zero.
(iii) . 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 Excess Proceeds Asset Sale Offer. To the extent that the provisions of any securities laws or regulations conflict with the Asset Sales provisions of Sections 3.09 or 4.10 of this AgreementIndenture, the Company will comply with the applicable securities laws and regulations and will not be deemed to have breached its obligations under Section 5(j) of 3.09 or this Agreement Section 4.10 by virtue of such conflictcompliance.
Appears in 1 contract
Samples: First Supplemental Indenture (DRS Technologies Inc)
Asset Sales. (i) The Company shall will not, and shall will not permit any of its Restricted Subsidiary Subsidiaries to, engage in any consummate an Asset Sale unless (xexcluding an Event of Loss for this purpose) unless:
(1) the Company or such Restricted Subsidiary, as the case may be, receives consideration at the time of such Asset Sale at least equal to the fair market value of the assets or Equity Interests issued or sold or otherwise disposed of; and
(2) at least 75% of the consideration received by the Company or such Restricted Subsidiary for such Subsidiary, as the case may be, from the Asset Sale and all other Asset Sales since the Issue Date is not less than in the fair market value form of the (A) cash or Cash Equivalents, (B) properties and capital assets sold evidenced by a resolution of the board of directors of such entity set forth in an Officers' Certificate delivered to the Holders and (y) the consideration received be used by the Company or the relevant any Restricted Subsidiary in respect the Principal Business, (C) Capital Stock of such Asset Sale consists a Person engaged in the Principal Business which becomes a Restricted Subsidiary of at least 75% the Company or (D) any combination thereof (collectively the “Cash Consideration”); provided, however, that the following are deemed to be cash or Cash Equivalents (for purposes of this clause provision: the amount of (y), cash and Cash Equivalents includes (Aa) any liabilities (as reflected in shown on the Company's consolidated ’s or such Restricted Subsidiary’s most recent balance sheet) of the Company or any such Restricted Subsidiary (other than contingent liabilities and liabilities that are by their terms subordinated to the Notes or any Subsidiary Guarantee) that are assumed by any the transferee of any such assets or other property in such Asset Sale, and where pursuant to (1) a customary novation agreement that releases the Company or the relevant such Restricted Subsidiary is released from any further liability or (2) an assignment agreement that includes, in connection therewith with lieu of such a release, the agreement of the transferee or its parent company to indemnify and hold harmless the Company or such Restricted Subsidiary from and against any loss, liability or cost in respect to of such liabilities, assumed liability on customary terms and (Bb) any securities, notes or other similar obligations non-Cash Consideration received by the Company or any such Restricted Subsidiary from such transferee that are is converted within 180 days of the consummation of the related Asset Sale by the Company or such Restricted Subsidiary into cash and Cash Equivalents within 180 days of the receipt thereof (but only to the extent of the net cash proceeds or received). Within 365 days after the Cash Equivalents (net receipt of related costs) received upon such conversion) and (C) any Designated Noncash Consideration received by Net Proceeds from an Asset Sale, the Company or any such Restricted Subsidiary in the Asset Sale having may apply such an aggregate fair market valueamount equal to those Net Proceeds, as determined by the Board of the Companyat its option, taken together with all other Designated Noncash Consideration received pursuant to this clause that is at that time outstanding, not to exceed the greater ofto:
(1) $10,000,000; prepay, repay, defease, redeem, purchase or otherwise retire any Senior Indebtedness, and, if the Senior Indebtedness repaid is revolving credit Indebtedness, to correspondingly reduce commitments with respect thereto;
(2) 15% make a capital expenditure; or
(3) acquire assets used in the Principal Business or to acquire all or substantially all of Consolidated Tangible Assets at the time of assets of, or any Capital Stock of, another Person engaged in the Principal Business. Notwithstanding the foregoing, if within 365 days after the receipt of such Designated Noncash Consideration (with the fair market value of each item of such Designated Noncash Consideration being measured at the time received and without giving effect to subsequent changes in value).
(ii) If the Company or any Restricted Subsidiary engages in Net Proceeds from an Asset Sale, the Company may, at its option, within 12 months after such Asset Sale, (1) apply all or a portion of the Net Cash Proceeds to the permanent reduction of amounts outstanding under the Credit Agreement (and to correspondingly reduce the commitments, if any, with respect thereto) or to the permanent repayment of other Senior Indebtedness of the Company or a applicable Restricted Subsidiary, provided that the repayment of any Indebtedness incurred under the Credit Agreement in connection with the acquisition of any Facility with the proceeds of any subsequent Sale and Leaseback Transaction relating to such Facility shall not be required to result in the permanent reduction of the amounts outstanding under the Credit Agreement or correspondingly permanently reduce the commitments thereunder, or (2) invest (or enter into a legally binding agreement to invest) all or a portion of such Net Cash Proceeds in properties and assets to replace the properties and assets that were the subject of the Asset Sale or in properties and assets that will be used in the businesses of the Company or its Restricted Subsidiaries, as the case may be) enters into a binding written agreement irrevocably committing the Company or such Restricted Subsidiary to an application of funds of the kind described in clause (2) or (3) of the preceding paragraph, existing on and as to which the Closing Date or in businesses only condition to closing is the same, similar or reasonably related thereto. If any such legally binding agreement to invest such Net Cash Proceeds is terminatedreceipt of required governmental approvals, the Company may, within 90 days or such Restricted Subsidiary shall be deemed not to be in violation of such termination or within 12 months of such Asset Sale, whichever is later, invest such the preceding paragraph. Any Net Cash Proceeds as provided in that are applied pursuant to clause (12) or (23) (without regard of the preceding paragraph pursuant to any such binding agreement shall be deemed to have been applied for such purpose within such 365-day period so long as they are so applied within two years after the parenthetical contained in date of receipt of such clause (2)) aboveNet Proceeds. Pending the final application of any such Net Cash Proceeds, the Company or any such Restricted Subsidiary may temporarily reduce outstanding revolving credit borrowings or otherwise invest such Net Cash Proceeds in a any manner that is not prohibited by this AgreementIndenture. The An amount of such equal to any Net Cash Proceeds from Asset Sales that are not so used applied or invested as set forth above provided in this paragraph shall the preceding paragraphs will constitute "“Excess Proceeds."
(c) ” When the aggregate amount of Excess Proceeds exceeds $10,000,00025.0 million, the Company willshall make, within 30 days thereafterin accordance with Section 3.09 hereof, make an offer Asset Sale Offer to purchase (an "Excess Proceeds Offer") from all Holders of the Notes and all holders of Pari Passu Indebtedness containing provisions similar to those set forth in this Section 4.10 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 Pari Passu Indebtedness that may be purchased out of the Excess Proceeds. The offer price in any Asset Sale Offer will be equal to 100% of the principal amount of the Indebtedness to be purchased plus accrued and unpaid interest to the date of purchase, subject to the rights of Holders on a pro rata basisthe relevant record date to receive interest due on an interest payment date that is on or prior to the date of purchase, and will be payable in cash, in accordance with the procedures set forth in this AgreementIndenture, in the case of the Notes, or in the instruments governing the terms of the Pari Passu Indebtedness, in the case of such Pari Passu Indebtedness; provided, however, that, if the Company is required to apply such Excess Proceeds to repurchase, or to offer to repurchase, any Pari Passu Indebtedness, the Company shall only be required to offer to repurchase the maximum principal amount (expressed as a multiple of $1,000) of Notes that may be purchased with the Excess Proceeds, at a purchase price in cash equal to 100% out of the amount of such Excess Proceeds multiplied by a fraction, the numerator of which is the aggregate principal amount thereof, of Notes outstanding and the denominator of which is the aggregate principal amount of Notes outstanding plus accrued interest, if any, to the date aggregate principal amount of such offer to purchase is consummatedPari Passu Indebtedness outstanding. To the extent that the aggregate principal amount of Notes tendered pursuant to such offer to purchase an Asset Sale Offer is less than the Excess Proceedsamount that the Company is required to repurchase, the Company may use the difference between such deficiency amounts for general corporate purposespurposes not otherwise prohibited by this Indenture. If the aggregate principal amount of Notes validly tendered and not withdrawn surrendered by holders thereof exceeds the Excess Proceedsamount that the Company is required by this Section 4.10 to repurchase, the Trustee shall select the Notes to be purchased will be selected on a pro rata basis. Upon completion of such offer to purchaseAsset Sale Offer, the amount of Excess Proceeds shall be reset at zero. Notwithstanding the foregoing, the sale, conveyance or other disposition of all or substantially all of the properties or assets of the Company and its Subsidiaries, taken as a whole, will be reset to zero.
(iii) governed by the provisions of Section 4.15 hereof and/or the provisions of Section 5.01 hereof and not by the provisions of this Section 4.10. The Company will comply with the requirements of Rule 14e-1 under the Exchange Act and any other securities laws and regulations thereunder to the extent such those laws and regulations are applicable in connection with each repurchase of Notes pursuant to an Excess Proceeds Asset Sale Offer. To the extent that the provisions of any securities laws or regulations conflict with the Asset Sales provisions Section 3.09 or this Section 4.10, or compliance with Section 3.09 or this Section 4.10 would constitute a violation of this Agreementany such laws or regulations, the Company will comply with the applicable securities laws and regulations and will not be deemed to have breached its obligations under Section 5(j) of 3.09 or this Agreement Section 4.10 by virtue of such conflictcompliance.
Appears in 1 contract
Samples: Indenture (Holly Corp)
Asset Sales. (i) The Company shall will not, and shall will not permit any of its Restricted Subsidiary Subsidiaries to, engage in any consummate an Asset Sale unless unless:
(x1) the Company (or the Restricted Subsidiary, as the case may be) receives consideration at the time of the Asset Sale at least equal to the Fair Market Value of the assets or Equity Interests issued or sold or otherwise disposed of; and
(2) at least 75% of the consideration received in the Asset Sale by the Company or such Restricted Subsidiary for such is in the form of cash or Cash Equivalents; provided that the 75% limitation will not apply to any Asset Sale is not less than in which the fair market value of the assets sold evidenced by a resolution of the board of directors of such entity set forth in an Officers' Certificate delivered to the Holders and (y) the consideration received by the Company or the relevant Restricted Subsidiary in respect of such Asset Sale consists of at least 75% cash or Cash Equivalents (for portion of the consideration received therefrom, determined pursuant to the succeeding sentence, is equal to or greater than what the after-tax proceeds would have been had such Asset Sale complied with the 75% limitation. For purposes of this clause (y)provision, cash and Cash Equivalents includes each of the following shall be deemed to be cash:
(A) any liabilities (liabilities, as reflected in shown on the Company's ’s most recent consolidated balance sheet) sheet or as would be reflected on a balance sheet prepared in accordance with GAAP on the date of such sale, of the Company or any Restricted Subsidiary (other than contingent liabilities and liabilities that are by their terms subordinated to the Notes or any Note Guarantee) that are assumed by any the transferee of any such assets or other property in such Asset Sale, and where with respect to which the Company or the relevant such Restricted Subsidiary is released from any further liability in connection therewith with respect to such liabilities, liability;
(B) any securities, notes or other similar obligations received by the Company or any such Restricted Subsidiary from such transferee that are converted within 180 days of the consummation of the related Asset Sale by the Company or such Restricted Subsidiary into cash and or Cash Equivalents (Equivalents, to the extent of the net cash proceeds or the Cash Equivalents (net of related costs) received upon such in that conversion) and (C) any Designated Noncash Consideration received by the Company or any such Restricted Subsidiary in the Asset Sale having an aggregate fair market value, as determined by the Board of the Company, taken together with all other Designated Noncash Consideration received pursuant to this clause that is at that time outstanding, not to exceed the greater of:
(1) $10,000,000; and
(2) 15% of Consolidated Tangible Assets at the time of the receipt of such Designated Noncash Consideration (with the fair market value of each item of such Designated Noncash Consideration being measured at the time received and without giving effect to subsequent changes in value).
(ii) If the Company or any Restricted Subsidiary engages in an Asset Sale, the Company may, at its option, within 12 months after such Asset Sale, (1) apply all or a portion of the Net Cash Proceeds to the permanent reduction of amounts outstanding under the Credit Agreement (and to correspondingly reduce the commitments, if any, with respect thereto) or to the permanent repayment of other Senior Indebtedness of the Company or a Restricted Subsidiary, provided that the repayment of any Indebtedness incurred under the Credit Agreement in connection with the acquisition of any Facility with the proceeds of any subsequent Sale and Leaseback Transaction relating to such Facility shall not be required to result in the permanent reduction of the amounts outstanding under the Credit Agreement or correspondingly permanently reduce the commitments thereunder, or (2) invest (or enter into a legally binding agreement to invest) all or a portion of such Net Cash Proceeds in properties and assets to replace the properties and assets that were the subject of the Asset Sale or in properties and assets that will be used in the businesses of the Company or its Restricted Subsidiaries, as the case may be, existing on the Closing Date or in businesses the same, similar or reasonably related thereto. If any such legally binding agreement to invest such Net Cash Proceeds is terminated, the Company may, within 90 days of such termination or within 12 months of such Asset Sale, whichever is later, invest such Net Cash Proceeds as provided in clause (1) or (2) (without regard to the parenthetical contained in such clause (2)) above. Pending the final application of any such Net Cash Proceeds, the Company may temporarily reduce revolving credit borrowings or otherwise invest such Net Cash Proceeds in a manner that is not prohibited by this Agreement. The amount of such Net Cash Proceeds not so used as set forth above in this paragraph shall constitute "Excess Proceeds."
(c) When the aggregate amount of Excess Proceeds exceeds $10,000,000, the Company will, within 30 days thereafter, make an offer to purchase (an "Excess Proceeds Offer") from all Holders of Notes on a pro rata basis, in accordance with the procedures set forth in this Agreement, the maximum principal amount (expressed as a multiple of $1,000) of Notes that may be purchased with the Excess Proceeds, at a purchase price in cash equal to 100% of the principal amount thereof, plus accrued interest, if any, to the date such offer to purchase is consummated. To the extent that the aggregate principal amount of Notes tendered pursuant to such offer to purchase is less than the Excess Proceeds, the Company may use such deficiency for general corporate purposes. If the aggregate principal amount of Notes validly tendered and not withdrawn by holders thereof exceeds the Excess Proceeds, the Notes to be purchased will be selected on a pro rata basis. Upon completion of such offer to purchase, the amount of Excess Proceeds will be reset to zero.
(iii) 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 Excess Proceeds Offer. To the extent that the provisions of any securities laws or regulations conflict with the Asset Sales provisions of this Agreement, the Company will comply with the applicable securities laws and regulations and will not be deemed to have breached its obligations under Section 5(j) of this Agreement by virtue of such conflict.
Appears in 1 contract
Asset Sales. (ia) The Company shall not, and shall not permit any of the Restricted Subsidiary Subsidiaries to, engage in any cause or make an Asset Sale Sale, unless (x) the Company or 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 in good faith by the Company) of the assets sold or otherwise disposed of, and (y) at least 75% of the consideration therefor received by the Company or such Restricted Subsidiary for such Asset Sale Subsidiary, as the case may be, is not less than in the fair market value form of the assets sold evidenced by a resolution of the board of directors of such entity set forth in an Officers' Certificate delivered to the Holders and (y) the consideration received by the Company or the relevant Restricted Subsidiary in respect of such Asset Sale consists of at least 75% cash or Cash Equivalents Equivalents; provided that the amount of:
(for purposes of this clause (y), cash and Cash Equivalents includes (Ai) any liabilities (as reflected shown on the Company’s or a Restricted Subsidiary’s most recent balance sheet or in the Company's consolidated balance sheetnotes thereto) of the Company or any a Restricted Subsidiary (other than contingent liabilities and liabilities that are by their terms subordinated to the Notes or any Guarantee) that are assumed by any the transferee of any such assets or other property in such Asset Sale, and where the Company that are otherwise cancelled or the relevant Restricted Subsidiary is released from any further liability terminated in connection therewith with respect to the transaction with such liabilities, transferee,
(Bii) any securities, notes or other similar obligations or other securities or assets received by the Company or any such Restricted Subsidiary from such transferee that are converted within 180 days of the consummation of the related Asset Sale by the Company or such Restricted Subsidiary into cash and Cash Equivalents within 180 days of the receipt thereof (to the extent of the net cash proceeds or received),
(iii) Indebtedness of any Restricted Subsidiary that is no longer a Restricted Subsidiary as a result of such Asset Sale, to the Cash Equivalents extent that the Company and each other Restricted Subsidiary are released from any guarantee of payment of such Indebtedness in connection with the Asset Sale,
(net iv) consideration consisting of related costsIndebtedness of the Company (other than Subordinated Indebtedness) received upon such conversion) and after the Issue Date from Persons who are not the Company or any Restricted Subsidiary, and
(Cv) any Designated Noncash Non-cash Consideration received by the Company or any such Restricted Subsidiary in the such Asset Sale having an aggregate fair market value, Fair Market Value (as determined in good faith by the Board of the Company), taken together with all other Designated Noncash Non-cash Consideration received pursuant to this clause Section 4.06(a)(v) that is at that time outstanding, not to exceed the greater of:
(1) $10,000,000; and
(2) 15% of Consolidated Tangible Assets at the time of the receipt of such Designated Noncash Consideration 100.0 million (with the fair market value Fair Market Value of each item of such Designated Noncash Non-cash Consideration being measured at the time received and without giving effect to subsequent changes in value), shall be deemed to be Cash Equivalents for the purposes of this Section 4.06(a).
(iib) If Within 365 days after the Company Company’s or any Restricted Subsidiary engages in an Subsidiary’s receipt of the Net Proceeds of any Asset Sale, the Company mayor such Restricted Subsidiary may apply the Net Proceeds from such Asset Sale, at its option:
(i) to repay, within 12 months after such Asset Saleprepay, purchase, redeem, acquire or otherwise reduce (1A) apply all or Indebtedness constituting Credit Facility Indebtedness and other Pari Passu Indebtedness that is secured by a portion of Lien permitted under this Indenture (and, if the Net Cash Proceeds to the permanent reduction of amounts outstanding under the Credit Agreement (and Indebtedness repaid is revolving credit Indebtedness, to correspondingly reduce commitments with respect thereto), (B) Indebtedness of a Restricted Subsidiary that is not a Guarantor, (C) Obligations under the commitmentsNotes or (D) other Pari Passu Indebtedness (provided that if the Company or any Guarantor shall so reduce the Obligations under unsecured Pari Passu Indebtedness under this clause (D), the Company will equally and ratably reduce Notes Obligations pursuant to Section 3.01, through open-market purchases (provided that such purchases are at or above 100% of the 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, if any, with respect thereto) or on the pro rata principal amount of Notes), in each case other than Indebtedness owed to the permanent repayment of other Senior Indebtedness of the Company or a Restricted Subsidiary, provided that an Affiliate of the repayment Company; or
(ii) to invest in Replacement Assets or to reimburse the cost of any Indebtedness investment in Replacement Assets incurred under on or after the Credit Agreement in connection with the acquisition of any Facility with the proceeds of any subsequent Sale and Leaseback Transaction relating to such Facility shall not be required to result in the permanent reduction of the amounts outstanding under the Credit Agreement or correspondingly permanently reduce the commitments thereunder, or (2) invest (or enter into a legally binding agreement to invest) all or a portion of such Net Cash Proceeds in properties and assets to replace the properties and assets that were the subject of date on which the Asset Sale or in properties and assets that will giving rise to such Net Proceeds was contractually committed. In the case of Section 4.06(b)(ii), a binding commitment entered into not later than such 365th day shall be used in treated as a permitted application of the businesses Net Proceeds from the date of such commitment so long as the Company or its such Restricted Subsidiaries, as Subsidiary enters into such commitment with the case may be, existing on the Closing Date or in businesses the same, similar or reasonably related thereto. If any such legally binding agreement to invest good faith expectation that such Net Cash Proceeds is terminated, the Company may, will be applied to satisfy such commitment within 90 180 days of such termination commitment; provided that in the event such binding commitment is later canceled or terminated for any reason before such Net Proceeds are so applied or used pursuant to clause (i) above within 12 months ten (10) Business Days of such Asset Saletermination, whichever is later, invest then such Net Cash Proceeds as provided in clause (1) or (2) (without regard to the parenthetical contained in such clause (2)) aboveshall constitute Excess Proceeds. Pending the final application of any such Net Cash Proceeds, the Company or such Restricted Subsidiary may temporarily reduce Indebtedness under a revolving credit borrowings facility, if any, or otherwise invest such Net Cash Proceeds in a any manner that is not prohibited by this AgreementIndenture. The amount Any Net Proceeds from any Asset Sale that are not applied as provided and within the time period set forth in the first sentence of this Section 4.06(b) (it being understood that any portion of such Net Cash 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 so used as set forth above in this paragraph shall such offer is accepted) will be deemed to constitute "“Excess Proceeds."
(c) ” When the aggregate amount of Excess Proceeds exceeds $10,000,00050.0 million, the Company will, within 30 days thereafter, shall make an offer to purchase all holders of Notes (and, at the option of the Company, 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 be purchased out of the Excess Proceeds Offer") from all Holders at an offer price in cash in an amount equal to 100% of the principal amount thereof (or, in the event the Notes on a pro rata basisor other Pari Passu Indebtedness were issued with significant original issue discount, 100% of the accreted value thereof), plus accrued and unpaid interest, if any (or, in respect of such other Pari Passu Indebtedness, such lesser price, if any, as may be provided for by the terms of such other Pari Passu Indebtedness), to, but excluding, the date fixed for the closing of such offer, in accordance with the procedures set forth in this AgreementIndenture. The Company will commence an Asset Sale Offer with respect to Excess Proceeds within ten (10) Business Days after the date that Excess Proceeds exceeds $50.0 million by mailing, or delivering electronically, the maximum principal amount (expressed as a multiple of $1,000) of Notes that may be purchased with the Excess Proceeds, at a purchase price in cash equal to 100% of the principal amount thereof, plus accrued interest, if any, notice required pursuant to the date such offer terms of this Indenture, with a copy to purchase is consummatedthe Trustee. To the extent that the aggregate principal amount of Notes (and such other Pari Passu Indebtedness) tendered pursuant to such offer to purchase an Asset Sale Offer is less than the Excess Proceeds, the Company may use such deficiency any remaining Excess Proceeds for general corporate purposesany purpose that is not prohibited by this Indenture. If the aggregate principal amount of Notes validly tendered (and not withdrawn such other Pari Passu Indebtedness) surrendered by holders thereof exceeds the amount of Excess Proceeds, the Trustee, upon receipt of notice from the Company of the aggregate principal amount to be selected, shall select the Notes to be purchased will be selected on a pro rata basisin the manner described in Section 4.06(e). Upon completion of any such offer to purchaseAsset Sale Offer, the amount of Excess Proceeds will shall be reset to at zero.
(iiic) The Company will comply comply, to the extent applicable, with the requirements of Rule 14e-1 under the Exchange Act and any other securities laws and or regulations thereunder to the extent such laws and or regulations are applicable in connection with each the repurchase of Notes pursuant to an Excess Proceeds Asset Sale Offer. To the extent that the provisions of any securities laws or regulations conflict with the Asset Sales provisions of this AgreementIndenture, the Company will comply with the applicable securities laws and regulations and will shall not be deemed to have breached its obligations under Section 5(j) of this Agreement Indenture by virtue thereof.
(d) Not later than the date upon which written notice of an Asset Sale Offer is delivered to the Trustee as provided above, the Company shall deliver to the Trustee an Officers’ Certificate as to (i) the amount of the Excess Proceeds, (ii) the allocation of the Net Proceeds from the Asset Sales pursuant to which such Asset Sale Offer is being made and (iii) the compliance of such conflictallocation with the provisions of Section 4.06(b).
(e) Holders electing to have a Note purchased shall be required to surrender such Note, with an appropriate form duly completed, to the Company at the address specified in the notice at least three (3) 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 (1) Business Day prior to the purchase date, a telegram, telex, facsimile transmission or letter setting forth the name of the holder, the principal amount of the Note which was delivered by the holder for purchase and a statement that such holder is withdrawing his election to have such Note purchased. If at the expiration of the period for which the Asset Sale Offer remains open more Notes (and such other Pari Passu Indebtedness) are tendered pursuant to an Asset Sale Offer than the Company is required to purchase, selection of such Notes for purchase shall be made by the Trustee in compliance with the requirements of the principal securities exchange, if any, on which such Notes are listed (and the Company 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 Notes of $2,000 or less shall be purchased in part. Selection of such other Pari Passu Indebtedness shall be made pursuant to the terms of such other Pari Passu Indebtedness.
(f) Notices of an Asset Sale Offer shall be mailed by the Company by first class mail, postage prepaid, or delivered electronically if held at the Depository, at least 30 but not more than 60 days before the purchase date to each holder of Notes at such holder’s registered address. If any Note is to be purchased in part only, any notice of purchase that relates to such Note shall state the portion of the principal amount thereof that has been or is to be purchased.
Appears in 1 contract
Samples: Indenture (MULTI COLOR Corp)
Asset Sales. (ia) The Company shall not, and shall not permit any of its Restricted Subsidiary Subsidiaries to, engage in any consummate an Asset Sale unless unless:
(xi) the Company (or its Restricted Subsidiary, as the case may be) receives consideration at the time of such Asset Sale at least equal to the fair market value of the assets or Equity Interests issued or sold or otherwise disposed of;
(ii) the fair market value is determined by the Company's Board of Directors and evidenced by resolution of such Board of Directors set forth in an Officer's Certificate delivered to the Trustee; and
(iii) at least 75% of the consideration received in the Asset Sale by the Company or such Restricted Subsidiary for such Asset Sale is not less than in the fair market value form of the assets sold evidenced by a resolution of the board of directors of such entity set forth in an Officers' Certificate delivered to the Holders and (y) the consideration received by the Company or the relevant Restricted Subsidiary in respect of such Asset Sale consists of at least 75% cash or Cash Equivalents (for Equivalents. For purposes of this clause (y)provision, cash and Cash Equivalents includes each of the following shall be deemed to be cash:
(A) any liabilities (liabilities, as reflected in shown on the Company's consolidated or such Restricted Subsidiary's most recent balance sheet) , of the Company or any Restricted Subsidiary (other than contingent liabilities and liabilities that are by their terms subordinated to the Notes or any Subsidiary Guarantee) that are assumed by any the transferee of any such assets or other property in such Asset Sale, and where as a result of which assumption the Company or the relevant such Restricted Subsidiary is released from any further liability in connection therewith with respect to such liabilities, liability;
(B) any securities, notes or other similar obligations received by the Company or any such Restricted Subsidiary from such transferee that are converted within 180 90 days of the consummation of the related such Asset Sale converted into cash by the Company or such Restricted Subsidiary into cash and Cash Equivalents (Subsidiary, to the extent of the net cash proceeds or the Cash Equivalents (net of related costs) received upon such in that conversion) and ; and
(C) any Designated Noncash Consideration received by the Company stock or any such Restricted Subsidiary in the Asset Sale having an aggregate fair market value, as determined by the Board assets of the Company, taken together with all other Designated Noncash Consideration received pursuant kind referred to this in clause that is at that time outstanding, not to exceed the greater of:(ii) or (iv) of Section 4.10(b) hereof
(1b) $10,000,000; and
(2) 15% of Consolidated Tangible Assets at the time of Within 360 days after the receipt of such Designated Noncash Consideration (with the fair market value of each item of such Designated Noncash Consideration being measured at the time received and without giving effect to subsequent changes in value).
(ii) If the Company or any Restricted Subsidiary engages in Net Proceeds from an Asset Sale, the Company may, at its option, within 12 months after such Asset Sale, (1) apply all or a portion of the Net Cash Proceeds to the permanent reduction of amounts outstanding under the Credit Agreement (and to correspondingly reduce the commitments, if any, with respect thereto) or to the permanent repayment of other Senior Indebtedness of the Company or a applicable Restricted Subsidiary, provided that the repayment of any Indebtedness incurred under the Credit Agreement in connection with the acquisition of any Facility with the proceeds of any subsequent Sale and Leaseback Transaction relating to such Facility shall not be required to result in the permanent reduction of the amounts outstanding under the Credit Agreement or correspondingly permanently reduce the commitments thereunder, or (2) invest (or enter into a legally binding agreement to invest) all or a portion of such Net Cash Proceeds in properties and assets to replace the properties and assets that were the subject of the Asset Sale or in properties and assets that will be used in the businesses of the Company or its Restricted Subsidiaries, as the case may be) may apply those Net Proceeds, existing on at its option:
(i) to repay secured Indebtedness of the Closing Date Company or in businesses the same, similar any Guarantor under a Credit Facility;
(ii) to acquire (or reasonably related thereto. If any such legally enter into a binding agreement to invest acquire; provided that such Net Cash Proceeds is terminated, the Company may, commitment shall be subject only to customary conditions (other than financing) and such acquisition shall be consummated within 90 days after the end of such termination 360-day period) all or substantially all of the assets of, or a majority of the Voting Stock of, another Permitted Business;
(iii) to make a capital expenditure; or
(iv) to acquire (or enter into a binding agreement to acquire; provided that such commitment shall be subject only to customary conditions (other than financing) and such acquisition shall be consummated within 12 months 90 days after the end of such Asset Sale, whichever 360-day period) other long-term assets that are used or useful in a Permitted Business or the minority interest in any Restricted Subsidiary that is later, invest such Net Cash Proceeds as provided in clause (1) or (2) (without regard to the parenthetical contained in such clause (2)) abovenot a Wholly-Owned Restricted Subsidiary. Pending the final application of any such Net Cash Proceeds, the Company may temporarily reduce revolving credit borrowings or otherwise invest such Net Cash Proceeds in a any manner that is not prohibited by this Agreement. The amount of such Indenture.
(c) Any Net Cash Proceeds from Asset Sales that are not so used applied or invested as set forth above provided in this paragraph Section 4.10(b) hereof shall constitute "Excess Proceeds."
(c) . When the aggregate amount of Excess Proceeds exceeds $10,000,0005,000,000, the Company will, within 30 days thereafter, shall make an offer Asset Sale Offer to purchase (an "Excess Proceeds Offer") from all Holders and all holders of Notes on a pro rata basis, in accordance other Indebtedness that is pari passu with the procedures Notes containing provisions similar to those set forth in this Agreement, Indenture with respect to offers to purchase or redeem with the proceeds of sales of assets to purchase the maximum principal amount (expressed as a multiple of $1,000) of Notes and such other pari passu Indebtedness that may be purchased with out of the Excess Proceeds, at a purchase . The offer price in cash any Asset Sale Offer shall be equal to 100% of the principal amount thereof, plus accrued interestand unpaid interest and Liquidated Damages, if any, to the date such offer to purchase is consummatedof purchase, and shall be payable in cash. To the extent that the aggregate principal amount If any Excess Proceeds remain after consummation of Notes tendered pursuant to such offer to purchase is less than the Excess Proceedsan Asset Sale Offer, the Company may use such deficiency Excess Proceeds for general corporate purposesany purpose not otherwise prohibited by this Indenture. If the aggregate principal amount of Notes validly and other pari passu Indebtedness tendered and not withdrawn by holders thereof into such Asset Sale Offer exceeds the amount of Excess Proceeds, the Trustee shall select the Notes and other pari passu Indebtedness to be purchased will be selected on a pro rata basis. Upon completion of such offer to purchaseeach Asset Sale Offer, the amount of Excess Proceeds will shall be reset to at zero.
(iii) . The Company will shall comply with the requirements of Rule 14e-1 under the Exchange Act and any other securities laws and regulations thereunder to the extent such those laws and regulations are applicable in connection with each repurchase of Notes pursuant to an Excess Proceeds Asset Sale Offer. To the extent that the provisions of any securities laws or regulations conflict with the Asset Sales provisions of Section 3.09 hereof or this AgreementSection 4.10, the Company will shall comply with the applicable securities laws and regulations and will shall not be deemed to have breached its obligations under Section 5(j) of 3.09 hereof or this Agreement Section 4.10 by virtue of such conflict.
Appears in 1 contract
Samples: Indenture (Interactive Voice Media (Sacramento) Corp.)
Asset Sales. (ia) The Company shall Partnership will not, and shall will not permit any of its Restricted Subsidiary Subsidiaries to, engage in any consummate an Asset Sale unless unless:
(x1) the Partnership (or a Restricted Subsidiary, as the case may be) receives consideration at the time of the Asset Sale at least equal to the fair market value (measured as of the date of the definitive agreement with respect to such Asset Sale) of the assets or Equity Interests issued or sold or otherwise disposed of; and
(2) at least 75% of the aggregate consideration received by the Company or such Partnership and its Restricted Subsidiary for such Subsidiaries in the Asset Sale is not less than in the fair market value form of cash, Cash Equivalents or Replacement Assets or any combination of the assets sold evidenced by a resolution of foregoing, and, if the board of directors of such entity set forth in an Officers' Certificate delivered to the Holders and (y) the consideration received by the Company or the relevant Restricted Subsidiary in respect of such Asset Sale consists is a Sale of at least 75% cash or Cash Equivalents (for Collateral, such Replacement Assets must constitute Collateral. For purposes of this clause provision, each of the following will be deemed to be cash:
(y), cash and Cash Equivalents includes (Aa) any liabilities (as reflected in shown on the Company's consolidated balance sheet) of the Company Partnership’s or any Restricted Subsidiary’s most recent balance sheet or in the footnotes thereto, or as would be shown on such balance sheet or footnotes if such liability was incurred subsequent to the date of such balance sheet), of the Partnership or such Subsidiary (other than contingent liabilities and liabilities that are by their terms contractually subordinated in right of payment to the Notes or any Note Guarantee) that are assumed or forgiven by any the transferee of any such assets pursuant to an agreement that releases the Partnership or other property in such Asset SaleSubsidiary from further liability, and where the Company or the relevant Restricted Subsidiary is that are otherwise released from any further liability in connection therewith with respect to such liabilities, or assumed;
(Bb) any securities, notes or other similar obligations received by the Company Partnership or any such Restricted Subsidiary from such transferee that are are, within 210 days after the Asset Sale, converted within 180 days of the consummation of the related Asset Sale by the Company Partnership or such Restricted Subsidiary into cash and or Cash Equivalents (Equivalents, to the extent of the net cash proceeds or the Cash Equivalents received in that conversion; and
(net of related costs) received upon such conversion) and (Cc) any Designated Noncash Non-Cash Consideration received by the Company Partnership or any such Restricted Subsidiary in the such Asset Sale having an aggregate fair market value, as determined by the Board of the Company, taken together with all other Designated Noncash Non-Cash Consideration received pursuant to this clause subclause 4.10(a)(2)(c) that is at that the time outstanding, not to exceed the greater of:
of (1x) $10,000,000; and
30.0 million and (2y) 152.5% of the Partnership’s Consolidated Net Tangible Assets at the time of the receipt of such Designated Noncash Consideration (Non-Cash Consideration, with the fair market value of each item of such Designated Noncash Non-Cash Consideration being measured at the time received and without giving effect to subsequent changes in value).
(iib) If Within 365 days after the Company receipt of any Net Proceeds from an Asset Sale other than a Sale of Collateral, the Partnership or any Restricted Subsidiary engages in an Asset Sale, the Company may, may apply such Net Proceeds at its option, within 12 months after such Asset Sale, option to any combination of the following:
(1) apply all to repay, redeem, repurchase or a portion otherwise retire any Senior Debt of the Net Cash Proceeds to Partnership or any of its Subsidiaries, including the permanent reduction of amounts outstanding under Notes and the Credit Agreement (and to correspondingly reduce the commitments, if any, with respect thereto) or to the permanent repayment of other Senior Indebtedness of the Company or a Restricted Subsidiary, provided that the repayment of any Indebtedness incurred under the Credit Agreement in connection with the acquisition of any Facility with the proceeds of any subsequent Sale and Leaseback Transaction relating to such Facility shall not be required to result in the permanent reduction of the amounts outstanding under the Credit Agreement or correspondingly permanently reduce the commitments thereunder, or Existing Notes;
(2) invest (or enter into a legally binding agreement to invest) acquire all or a portion substantially all of such Net Cash Proceeds in properties and assets to replace the properties and 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 Partnership;
(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 Partnership;
(4) to make capital expenditures in respect of the Partnership’s or its Restricted Subsidiaries’ Permitted Business or make an Investment in Replacement Assets; or
(5) to acquire other assets that were the subject of the Asset Sale are used or useful in properties and a Permitted Business or make an Investment in assets that will be used or useful in the businesses Partnership’s business. The requirement of the Company or its Restricted Subsidiaries, as the case may be, existing on the Closing Date or in businesses the same, similar or reasonably related thereto. If any such legally binding agreement to invest such Net Cash Proceeds is terminated, the Company may, within 90 days of such termination or within 12 months of such Asset Sale, whichever is later, invest such Net Cash Proceeds as provided in clause (1) or (2) (without regard to the parenthetical contained in such clause (2), (3), (4) aboveor (5) of this Section 4.10(b) shall be deemed to be satisfied if a bona fide binding contract committing to make the acquisition, purchase, Investment or expenditure referred to therein is entered into by the Partnership (or any Restricted Subsidiary) within the time period specified in this Section 4.10(b) and such Net Proceeds are subsequently applied in accordance with such contract within 365 days following the date such agreement is entered into. Pending the final application of any such Net Cash Proceeds, the Company Partnership or any Restricted Subsidiary may temporarily reduce revolving credit borrowings or otherwise invest utilize such Net Cash Proceeds in a any manner that is not prohibited by this Agreement. The amount of such Net Cash Proceeds not so used as set forth above in this paragraph shall constitute "Excess ProceedsIndenture."
(c) When Within 365 days after the receipt of any Net Proceeds from an Asset Sale that constitutes a Sale of Collateral, the Partnership (or the Restricted Subsidiary that owned those assets, as the case may be) shall apply those Net Proceeds at its option to any combination of the following:
(1) to repay, redeem, repurchase or otherwise retire any (i) ABL Debt to the extent such Net Proceeds are from an Asset Sale of ABL Priority Collateral, (ii) Pari Passu Debt or (iii) the Notes;
(2) to repay any Indebtedness secured by a Permitted Lien on any Collateral that was sold in such Asset Sale;
(3) to make an Investment in other assets or property that would constitute Collateral;
(4) to acquire all or substantially all of the properties or assets of a Person primarily engaged in a Permitted Business if, after giving effect to such acquisition, such properties or assets would constitute Collateral;
(5) to acquire any Capital Stock of a Person operating a Permitted Business if, after giving effect to such acquisition, such Person operating a Permitted Business is or becomes a Guarantor or is merged into or consolidated with the Partnership or another Guarantor and all such Capital Stock would be pledged as Collateral to the extent required under this Indenture;
(6) to make capital expenditures with respect to assets that constitute Collateral or make an Investment in Replacement Assets that constitute Collateral; or
(7) to acquire other long-term assets that constitute Collateral and that are used or useful in a Permitted Business. The requirement of clauses (3) through and including (7) of this Section 4.10(c) hereof shall be deemed to be satisfied if a bona fide binding contract committing to make the acquisition, Investment or expenditure referred to therein is entered into by the Partnership (or any Restricted Subsidiary) within the time period specified in the preceding paragraph and such Net Proceeds are subsequently applied in accordance with such contract within 180 days following the date such agreement is entered into. Pending the final application of any such Net Proceeds, the Partnership may use such Net Proceeds in any manner that is not prohibited by this Indenture.
(d) Any Net Proceeds from Asset Sales that are not applied or invested as provided in Section 4.10(b) or 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 subclause 4.10(b)(1) or subclause 4.10(c)(1) above 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 $10,000,00025.0 million (or, at the Partnership’s option, on any earlier date or for any lesser amount), the Company will, within 30 days thereafter, Partnership will make an offer (the “Asset Sale Offer”) to purchase (an "Excess Proceeds Offer") from all Holders of Notes on a pro rata basis, in accordance with the procedures and all holders of other Pari Passu Debt containing provisions similar to those set forth in this AgreementIndenture with respect to offers to purchase, prepay or redeem with the proceeds of sales of assets, to purchase, prepay or redeem the maximum principal amount of notes and such other Pari Passu Debt (expressed as a multiple plus all accrued interest on the Indebtedness and the amount of $1,000all fees and expenses, including premiums, incurred in connection therewith) of Notes that may be purchased with purchased, prepaid or redeemed out of the Excess Proceeds, at a purchase . The offer price in cash any Asset Sale Offer will be equal to 100% of the principal amount thereof, plus accrued and unpaid interest, if any, to the date such offer of settlement, subject to purchase the right of Holders of record on the relevant record date to receive interest due on an interest payment date that is consummatedon or prior to the date of settlement, and will be payable in cash. To If any Excess Proceeds remain after the extent that the aggregate principal amount consummation of Notes tendered pursuant to such offer to purchase is less than the Excess Proceedsan Asset Sale Offer, the Company Partnership or any Restricted Subsidiary may use such deficiency those Excess Proceeds for general corporate purposesany purpose not otherwise prohibited by this Indenture. If the aggregate principal amount of Notes validly and other Pari Passu Debt tendered and not withdrawn by holders thereof into such Asset Sale Offer exceeds the amount of Excess Proceeds, the Trustee will select the Notes and the Trustee or agent for such other Pari Passu Debt shall select such Pari Passu Debt to be purchased will be selected on a pro rata basisbasis (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 and, in all cases, in compliance with the requirements of the principal national securities exchange, if any, on which the Notes are listed) but with such adjustments as necessary so that no Notes or other Pari Passu Debt is purchased in part in an authorized denomination, based on the amounts tendered or required to be prepaid or redeemed. Upon completion of such offer to purchaseeach Asset Sale Offer, the amount of Excess Proceeds will be reset to at zero.
(iiif) The Company Partnership will comply with the requirements of Rule 14e-1 under the Exchange Act and any other securities laws and regulations thereunder to the extent such those laws and regulations are applicable in connection with each repurchase of Notes pursuant to an Excess Proceeds Asset Sale Offer. To the extent that the provisions of any securities laws or regulations thereunder conflict with the Asset Sales provisions of Section 3.09 hereof or this AgreementSection 4.10, the Company Partnership will comply with the applicable securities laws and regulations thereunder and will not be deemed to have breached its obligations under Section 5(j) of 3.09 hereof or this Agreement Section 4.10 by virtue of such conflictcompliance.
Appears in 1 contract
Samples: Indenture (CVR Energy Inc)
Asset Sales. (ia) The Company Holdings shall not, and shall not permit any of the Restricted Subsidiary Subsidiaries to, engage in any cause or make an Asset Sale Sale, unless (x) Holdings or any Restricted Subsidiary, as the case may be, receives consideration received by at the Company or such Restricted Subsidiary for time of such Asset Sale is not less than at least equal to the fair market value Fair Market Value (as determined in good faith by Holdings) of the assets sold evidenced by a resolution of the board of directors of such entity set forth in an Officers' Certificate delivered to the Holders or otherwise disposed of, and (y) the consideration received by the Company or the relevant Restricted Subsidiary in respect of such Asset Sale consists of at least 75% cash of the consideration therefor received by Holdings or such Restricted Subsidiary, as the case may be, is in the form of Cash Equivalents or Additional Assets; provided that the amount of:
(for purposes of this clause (y), cash and Cash Equivalents includes (Ai) any liabilities (as reflected shown on Holdings’ or a Restricted Subsidiary’s most recent balance sheet or in the Company's consolidated balance sheetnotes thereto) of the Company Holdings or any a Restricted Subsidiary (other than contingent liabilities and liabilities that are by their terms subordinated to the Notes or any Subsidiary Guarantee) that are assumed by any the transferee of any such assets or other property in such Asset Sale, and where the Company that are otherwise cancelled or the relevant Restricted Subsidiary is released from any further liability terminated in connection therewith with respect to the transaction with such liabilities, transferee,
(Bii) any securities, notes or other similar obligations or other securities or assets received by the Company Holdings or any such Restricted Subsidiary from such transferee that are converted within 180 days of the consummation of the related Asset Sale by the Company Holdings or such Restricted Subsidiary into cash and Cash Equivalents within 180 days of the receipt thereof (to the extent of the net cash proceeds received),
(iii) with respect to any Asset Sale of Oil and Gas Properties by Holdings or any Restricted Subsidiary, the Cash Equivalents 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 (net of related costs) received upon such conversion) and or an Affiliate thereof), and
(Civ) any Designated Noncash Non-cash Consideration received by the Company Holdings or any such Restricted Subsidiary in the such Asset Sale having an aggregate fair market value, Fair Market Value (as determined in good faith by the Board of the CompanyHoldings), taken together with all other Designated Noncash Non-cash Consideration received pursuant to this clause Section 4.06(a)(iv) that is at that time outstanding, not to exceed the greater of:
(1) $10,000,000; and
(2) 15of 4% of Adjusted Consolidated Net Tangible Assets and $300.0 million at the time of the receipt of such Designated Noncash Non-cash Consideration (with the fair market value Fair Market Value of each item of such Designated Noncash Non-cash Consideration being measured at the time received and without giving effect to subsequent changes in value), shall be deemed to be Cash Equivalents for the purposes of this Section 4.06(a).
(b) Within 365 days after Holdings’ or any Restricted Subsidiary’s receipt of the Net Proceeds of any Asset Sale, Holdings or such Restricted Subsidiary may apply the Net Proceeds from such Asset Sale, at its option:
(i) to repay (A) Indebtedness constituting First-Priority Lien Obligations 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 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 an Issuer or any Subsidiary Guarantor shall so reduce Obligations under Pari Passu Indebtedness that does not constitute First-Priority Lien Obligations, the Issuers will equally and ratably reduce Obligations under the Notes pursuant to Section 3.01, through open-market purchases (provided that such purchases are at or above 100% of the principal amount thereof or, in the event that the Notes were issued with significant original issue discount, 100% of the accreted value thereof) or by making an offer (in accordance with the procedures set forth below for an Asset Sale Offer) to all holders to purchase at a purchase price equal to 100% of the principal amount thereof (or, in the event that the Notes were issued with significant original issue discount, 100% of the accreted value thereof), plus accrued and unpaid interest and Additional Interest, if any, the pro rata principal amount of Notes, in each case other than Indebtedness owed to Holdings or an Affiliate of Holdings;
(ii) If the Company to make an Investment in any one or any Restricted Subsidiary engages in an Asset Sale, the Company may, at its option, within 12 months after such Asset Sale, more businesses (1) apply all or a portion of the Net Cash Proceeds to the permanent reduction of amounts outstanding under the Credit Agreement (and to correspondingly reduce the commitments, if any, with respect thereto) or to the permanent repayment of other Senior Indebtedness of the Company or a Restricted Subsidiary, provided that if such Investment is in the repayment form of any Indebtedness incurred under the Credit Agreement in connection with the acquisition of any Facility with the proceeds Capital Stock of any subsequent Sale and Leaseback Transaction relating to a Person, such Facility shall not be required to result acquisition results in the permanent reduction such Person becoming a Restricted Subsidiary of the amounts outstanding under the Credit Agreement or correspondingly permanently reduce the commitments thereunderHoldings), assets, or property or capital expenditures, in each case (2A) invest used or useful in a Similar Business or (or enter into a legally binding agreement to investB) all or a portion of such Net Cash Proceeds in properties and assets to that replace the properties and assets that were are the subject of the Asset Sale or in properties and assets that will be used in the businesses of the Company or its Restricted Subsidiaries, as the case may be, existing on the Closing Date or in businesses the same, similar or reasonably related thereto. If any such legally binding agreement to invest such Net Cash Proceeds is terminated, the Company may, within 90 days of such termination or within 12 months of such Asset Sale; or
(iii) to invest in Additional Assets. In the case of Section 4.06(b)(ii), whichever is later, invest 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 Cash Proceeds; provided that in the event such binding commitment is later canceled or terminated for any reason before such Net Proceeds as provided in clause are so applied, then such Net Proceeds shall constitute Excess Proceeds unless Holdings or such Restricted Subsidiary enters into another binding commitment (1a “Second Commitment”) within six months of such cancellation or (2) (without regard termination of the prior binding commitment; provided, further, that 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 parenthetical contained in extent such clause (2)) aboveSecond Commitment is later cancelled or terminated for any reason before such Net Proceeds are applied or are not applied within 180 days of such Second Commitment, then such Net Proceeds shall constitute Excess Proceeds. Pending the final application of any such Net Cash Proceeds, the Company Holdings or such Restricted Subsidiary may temporarily reduce Indebtedness under a revolving credit borrowings facility, if any, or otherwise invest such Net Cash Proceeds in a any manner that is not prohibited by this AgreementIndenture. The amount Any Net Proceeds from any Asset Sale that are not applied as provided and within the time period set forth in the first sentence of this Section 4.06(b) (it being understood that any portion of such Net Cash 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 so used as set forth above in this paragraph shall such offer is accepted) will be deemed to constitute "“Excess Proceeds."
(c) ” When the aggregate amount of Excess Proceeds exceeds $10,000,00050.0 million, the Company will, within 30 days thereafter, Issuers shall make an offer to purchase all holders of Notes (and, at the option of the Issuers, to holders of any Pari Passu Indebtedness) (an "“Asset Sale Offer”) to purchase the maximum principal amount of Notes (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 Offer") from all Holders at an offer price in cash in an amount equal to 100% of the principal amount thereof (or, in the event the Notes on a pro rata basisor such Pari Passu Indebtedness was issued with significant original issue discount, 100% of the accreted value thereof), plus accrued and unpaid interest and Additional Interest, if any (or, in respect of such Pari Passu Indebtedness, such lesser price, if any, as may be provided for by the terms of such Pari Passu Indebtedness), to the date fixed for the closing of such offer, in accordance with the procedures set forth in this Agreement, Section 4.06. The Issuers will commence an Asset Sale Offer with respect to Excess Proceeds within ten (10) Business Days after the maximum principal amount (expressed as a multiple of date that Excess Proceeds exceeds $1,000) of Notes that may be purchased with 50.0 million by mailing the Excess Proceeds, at a purchase price in cash equal to 100% of the principal amount thereof, plus accrued interest, if any, notice required pursuant to the date such offer terms of Sections 3.05 and 4.06(f), with a copy to purchase is consummatedthe Trustee. To the extent that the aggregate principal amount of Notes (and such Pari Passu Indebtedness) tendered pursuant to such offer to purchase an Asset Sale Offer is less than the Excess Proceeds, the Company Holdings may use such deficiency any remaining Excess Proceeds for general corporate purposesany purpose that is not prohibited by this Indenture. If the aggregate principal amount of Notes validly tendered (and not withdrawn such Pari Passu Indebtedness) surrendered by holders thereof exceeds the amount of Excess Proceeds, the Trustee shall select the Notes to be purchased will be selected on a pro rata basisin the manner described in Section 4.06(e). Upon completion of any such offer to purchaseAsset Sale Offer, the amount of Excess Proceeds will shall be reset to at zero.
(iiic) The Company Issuers will comply with the requirements of Rule 14e-1 under the Exchange Act and any other securities laws and regulations thereunder to the extent such laws and or regulations are applicable in connection with each the repurchase of the Notes pursuant to an Excess Proceeds Asset Sale Offer. To the extent that the provisions of any securities laws or regulations conflict with the Asset Sales provisions of this AgreementIndenture, the Company Issuers will comply with the applicable securities laws and regulations and will shall not be deemed to have breached its obligations under described in this Indenture by virtue thereof.
(d) Not later than the date upon which written notice of an Asset Sale Offer is delivered to the Trustee as provided above, Holdings shall deliver to the Trustee an Officers’ Certificate as to (i) the amount of the Excess Proceeds, (ii) the allocation of the Net Proceeds from the Asset Sales pursuant to which such Asset Sale Offer is being made and (iii) the compliance of such allocation with the provisions of Section 5(j4.06(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 Agreement 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 virtue 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 the Note, with an appropriate form duly completed, to the Issuers at the address specified in the notice at least three Business Days prior to the purchase date. Holders shall be entitled to withdraw their election if the Trustee or an Issuer receives not later than one Business Day prior to the purchase date, a telegram, telex, facsimile transmission or letter setting forth the name of the holder, the principal amount of the Note which was delivered by the holder for purchase and a statement that such holder is withdrawing his election to have such Note purchased. If at the end of the Offer Period more Notes (and such Pari Passu Indebtedness) are tendered pursuant to an Asset Sale Offer than the Issuers are required to purchase, selection of such conflictNotes 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 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.
(f) Notices of an Asset Sale Offer shall be mailed by first class mail, postage prepaid, at least 30 but not more than 60 days before the purchase date to each holder of Notes at such holder’s registered address. If any Note is to be purchased in part only, any notice of purchase that relates to such Note shall state the portion of the principal amount thereof that has been or is to be purchased.
Appears in 1 contract
Samples: Indenture (MBOW Four Star, L.L.C.)
Asset Sales. (ia) The Company shall not, and shall not permit any of its Restricted Subsidiary Subsidiaries to, engage in any consummate an Asset Sale unless unless:
(x1) the Company (or the Restricted Subsidiary, as the case may be) receives consideration at the time of such Asset Sale at least equal to the fair market value of the assets or Capital Stock issued or sold or otherwise disposed of;
(2) in the case of an Asset Sale involving consideration in excess of $1.0 million, such fair market value is determined by the Company’s Board of Directors and evidenced by a Resolution of the Board of Directors set forth in an Officers’ Certificate delivered to the Trustee; and
(3) at least 85% of the consideration therefor received by the Company or such Restricted Subsidiary for such Asset Sale is not less than in the fair market value form of the assets sold evidenced by a resolution of the board of directors of such entity set forth in an Officers' Certificate delivered to the Holders and (y) the consideration received by the Company or the relevant Restricted Subsidiary in respect of such Asset Sale consists of at least 75% cash or Cash Equivalents (for Equivalents. For purposes of this clause provision, each of the following shall be deemed to be cash:
(y), cash and Cash Equivalents includes (Aa) any liabilities (as reflected shown on the Company’s or such Restricted Subsidiary’s most recent balance sheet or in the Company's consolidated balance sheet) footnotes thereto), of the Company or any Restricted Subsidiary (other than contingent liabilities and liabilities that are by their terms subordinated to the Notes or any Subsidiary Guarantee) that are assumed by any the transferee of any such assets or other property in such Asset Sale, and where pursuant to a customary novation agreement that releases the Company or the relevant such Restricted Subsidiary is released from any further liability in connection therewith with respect to such liabilities, liability; and
(Bb) any securities, notes or other similar obligations Obligations received by the Company or any such Restricted Subsidiary from such transferee that are contemporaneously (subject to ordinary settlement periods) converted within 180 days of the consummation of the related Asset Sale by the Company or such Restricted Subsidiary into cash and Cash Equivalents (to the extent of the net cash proceeds or the Cash Equivalents (net of related costs) received upon such in that conversion) and (C) any Designated Noncash Consideration received by the Company or any such Restricted Subsidiary in the Asset Sale having an aggregate fair market value, as determined by the Board of the Company, taken together with all other Designated Noncash Consideration received pursuant to this clause that is at that time outstanding, not to exceed the greater of:);
(1b) $10,000,000; and
(2) 15% of Consolidated Tangible Assets at the time of Within 360 days after the receipt of such Designated Noncash Consideration (with the fair market value of each item of such Designated Noncash Consideration being measured at the time received and without giving effect to subsequent changes in value).
(ii) If the Company or any Restricted Subsidiary engages in Net Proceeds from an Asset Sale, the Company may(or the Restricted Subsidiary, at its option, within 12 months after as the case may be) may apply such Asset Sale, Net Proceeds to (1) apply make capital expenditures, (2) the acquisition of all or a portion substantially all of the Net Cash Proceeds to assets, or a majority of the permanent reduction Voting Stock of amounts outstanding under another Permitted Business; provided that (a) if such Investment in any business is in the Credit Agreement (and to correspondingly reduce form of the commitmentsacquisition of Capital Stock, if any, with respect thereto) or to the permanent repayment of other Senior Indebtedness of such Investment results in the Company or a Restricted Subsidiary, provided that the repayment another of any Indebtedness incurred under the Credit Agreement in connection with the acquisition of any Facility with the proceeds of any subsequent Sale and Leaseback Transaction relating to such Facility shall not be required to result in the permanent reduction of the amounts outstanding under the Credit Agreement or correspondingly permanently reduce the commitments thereunder, or (2) invest (or enter into a legally binding agreement to invest) all or a portion of such Net Cash Proceeds in properties and assets to replace the properties and assets that were the subject of the Asset Sale or in properties and assets that will be used in the businesses of the Company or its Restricted Subsidiaries, as the case may be, existing on owning an amount of the Closing Date or Capital Stock of such business such that it constitutes a Restricted Subsidiary and (b) if such Investment is in businesses the sameform of an acquisition of assets, similar or reasonably related thereto. If any such legally binding agreement to invest such Net Cash Proceeds is terminated, newly acquired assets are held by the Company mayor a Restricted Subsidiary, within 90 days (3) the acquisition of such termination or within 12 months other long-term assets in another Permitted Business (each of such Asset Sale, whichever is later, invest such Net Cash Proceeds as provided in clause clauses (1) or ), (2) and (without regard to the parenthetical contained in such clause (2)3) above. Pending , either individually or in the final application aggregate, “Replacement Assets”), (4) retire and permanently reduce Indebtedness incurred under the Senior Credit Facilities; provided, that in the case of any a revolver or similar arrangement that makes credit available, such Net Cash Proceedscommitment is permanently reduced by such amount, the Company may temporarily reduce revolving credit borrowings or otherwise invest such Net Cash Proceeds in a manner and/or (5) repay other Senior Indebtedness that is not prohibited secured by a Lien incurred in compliance with the terms of this Agreement. The amount of such Net Cash Proceeds not so used as set forth above Indenture in this paragraph shall constitute "Excess Proceedsaccordance with the terms thereof."
(c) Any Net Proceeds from Asset Sales that are not applied or invested as provided in the preceding paragraph will constitute “Excess Proceeds.” When the aggregate amount of Excess Proceeds exceeds $10,000,0005.0 million, the Company will, within 30 days thereafter, will make an offer Asset Sale 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 (an "Excess Proceeds Offer") from all Holders the maximum aggregate principal amount of Notes on and such Pari Passu Indebtedness that is in a pro rata basis, in accordance with the procedures set forth in this Agreement, the maximum minimum principal amount (expressed as a multiple of $1,000) 2,000 and integral multiples of Notes $1,000 that may be purchased with out of the Excess Proceeds, Proceeds at a purchase an offer price in cash in an amount equal to 100% of the principal amount thereof, plus accrued interestand unpaid interest and Additional Interest, if any, to the date fixed for the closing of such offer offer, in accordance with the procedures set forth in this Indenture. The Company will commence an Asset Sale Offer with respect to purchase is consummated. Excess Proceeds within thirty Business Days after the date that Excess Proceeds exceed $5.0 million by mailing the notice required pursuant to the terms of this Indenture, with a copy to the Trustee.
(d) To the extent that the aggregate principal amount of Notes and such Pari Passu Indebtedness tendered pursuant to such offer to purchase an Asset Sale Offer is less than the Excess Proceeds, the Company may use such deficiency any remaining Excess Proceeds for general corporate purposes, subject to applicable limitations arising from other covenants contained in this Indenture. If the aggregate principal amount of Notes validly tendered and not withdrawn into such Asset Sale Offer 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 will be selected on a pro rata basisbasis based on the accreted value or principal amount of Notes or such Pari Passu Indebtedness tendered. Upon completion of any such offer to purchaseAsset Sale Offer, the amount of Excess Proceeds will shall be reset to at zero.
(iiie) Pending the final application of any Net Proceeds pursuant to this Section 4.11, the holder of such Net Proceeds may apply such Net Proceeds temporarily to reduce Indebtedness outstanding under a revolving credit facility or otherwise invest such Net Proceeds in any manner not prohibited by this Indenture. On a date which shall be not later than 60 days from the date notice of an Asset Sale Offer is mailed (the “Asset Sale Offer Payment Date”), the Company shall, to the extent lawful, (1) accept for payment, on a pro rata basis to the extent necessary, Notes or portions thereof tendered pursuant to the Asset Sale Offer, (2) deposit with the Paying Agent U.S. legal tender sufficient to pay the purchase price plus accrued and unpaid interest, and Additional Interest, if any, on the Notes to be purchased or portions thereof, and (3) deliver or cause to be delivered to the Trustee Notes so accepted together with an Officers’ Certificate stating that such Notes or portions thereof were accepted for payment by the Company in accordance with the terms of this Section 4.11. The Paying Agent shall promptly mail to each Holder so accepted payment in an amount equal to the purchase price for such Notes, and the Company shall execute and issue, and the Trustee shall promptly authenticate and make available for delivery to such Holder, a new Note equal in principal amount to any unpurchased portion of the Notes surrendered; provided that each such new Note shall be issued in an original principal amount in denominations of $2,000 and integral multiples of $1,000. The Company shall publicly announce the results of the Asset Sale Offer on the Asset Sale Offer Payment Date.
(f) The Company will shall comply with the requirements of Rule 14e-1 under the Exchange Act and any other securities laws and regulations thereunder to the extent such laws and regulations are applicable in connection with each repurchase of Notes pursuant to an Excess Proceeds Asset Sale Offer. To the extent that the provisions of any securities laws or regulations conflict with the Asset Sales provisions of this AgreementIndenture, the Company will shall comply with the applicable securities laws and regulations and will shall not be deemed to have breached its obligations Obligations under Section 5(j) the Asset Sale provisions of this Agreement Indenture by virtue of such conflictcompliance.
Appears in 1 contract
Samples: Indenture (Jacobs Entertainment Inc)
Asset Sales. (ia) The Company shall not, and shall not permit any of its Restricted Subsidiary Subsidiaries to, engage in any consummate an Asset Sale unless unless:
(xi) the Company (or the Restricted Subsidiary, as the case may be) receives consideration at the time of such Asset Sale at least equal to the fair market value of the assets or Equity Interests issued or sold or otherwise disposed of;
(ii) such fair market value is determined in good faith by (a) an executive officer of the General Partner if the value is less than $20.0 million, as evidenced by an Officers’ Certificate delivered to the Trustee or (b) the Board of Directors of the General Partner if the value is $20.0 million or more, as evidenced by a resolution of such Board of Directors of the General Partner; and
(iii) except in the case of a Permitted Asset Swap, at least 75% of the consideration therefor received by the Company or such Restricted Subsidiary for such Asset Sale is not less than in the fair market value form of the assets sold evidenced by a resolution of the board of directors of such entity set forth in an Officers' Certificate delivered to the Holders and (y) the consideration received by the Company or the relevant Restricted Subsidiary in respect of such Asset Sale consists of at least 75% cash or Cash Equivalents (for Equivalents. For purposes of this clause (yiii), cash and Cash Equivalents includes each of the following shall be deemed to be cash:
(A) any liabilities (as reflected in shown on the Company's consolidated ’s or such Restricted Subsidiary’s most recent balance sheet) of the Company or any Restricted Subsidiary (other than contingent liabilities and liabilities that are by their terms subordinated to the Notes or any Guarantee) that are assumed by any the transferee of any such assets or other property in such Asset Sale, and where pursuant to a customary novation agreement that releases the Company or the relevant such Restricted Subsidiary is released from any further liability in connection therewith with respect to such liabilities, liability; and
(B) any securities, notes or other similar obligations Obligations received by the Company or any such Restricted Subsidiary from such transferee that are converted within 180 days of after the consummation of the related Asset Sale converted by the Company such Issuer or such Restricted Subsidiary into cash and Cash Equivalents (to the extent of the net cash proceeds or the Cash Equivalents (net of related costs) received upon such in that conversion) and (C) any Designated Noncash Consideration received by the Company or any such Restricted Subsidiary in the Asset Sale having an aggregate fair market value, as determined by the Board of the Company, taken together with all other Designated Noncash Consideration received pursuant to this clause that is at that time outstanding, not to exceed the greater of:
(1) $10,000,000; and
(2) 15% of Consolidated Tangible Assets at the time of the receipt of such Designated Noncash Consideration (with the fair market value of each item of such Designated Noncash Consideration being measured at the time received and without giving effect to subsequent changes in value).
(iib) If Within 360 days after the receipt of any Net Proceeds from an Asset Sale (or within 90 days after such 360-day period in the event the Company or any Restricted Subsidiary engages in an Asset Sale, the Company may, at its option, within 12 months after such Asset Sale, (1) apply all or enters into a portion of the Net Cash Proceeds to the permanent reduction of amounts outstanding under the Credit Agreement (and to correspondingly reduce the commitments, if any, binding commitment with respect thereto) or to the permanent repayment of other Senior Indebtedness of such application), the Company or a Restricted Subsidiary, provided that Subsidiary may apply such Net Proceeds at its option:
(i) to repay secured Indebtedness of the Company and/or its Restricted Subsidiaries and/or to satisfy all mandatory repayment of any Indebtedness incurred obligations under the Credit Agreement in connection with the acquisition of any Facility with the proceeds of any subsequent Sale and Leaseback Transaction relating to such Facility shall not be required to result in the permanent reduction of the amounts outstanding under the Credit Agreement or correspondingly permanently reduce the commitments thereunder, or (2) invest (or enter into a legally binding agreement to invest) all or a portion of such Net Cash Proceeds in properties and assets to replace the properties and assets that were the subject of the Asset Sale or in properties and assets that will be used in the businesses of the Company or its Restricted Subsidiaries, as the case may be, existing on the Closing Date or in businesses the same, similar or reasonably related thereto. If any such legally binding agreement to invest such Net Cash Proceeds is terminated, the Company may, within 90 days of such termination or within 12 months Facilities arising by reason of such Asset Sale, whichever ;
(ii) to make a capital expenditure in a Permitted Business;
(iii) to acquire other tangible assets that are used or useful in a Permitted Business; or
(iv) to acquire all or substantially all of the assets of a Person engaged in a Permitted Business or Equity Interests of a Person engaged in a Permitted Business so long as such Person or the Person to which such assets are transferred is later, invest such Net Cash Proceeds as provided in clause (1) or (2) (without regard to the parenthetical contained in such clause (2)) abovea Restricted Subsidiary. Pending the final application of any such Net Cash Proceeds, the Company may temporarily reduce revolving credit borrowings or otherwise invest such Net Cash Proceeds in a any manner that is not prohibited by this AgreementIndenture. The amount of such Net Cash Proceeds not so used as set forth above in this paragraph shall constitute "Excess Proceeds."
(c) When the aggregate amount of Excess Proceeds exceeds $10,000,000, the Company will, within 30 days thereafter, make an offer Back to purchase (an "Excess Proceeds Offer") from all Holders of Notes on a pro rata basis, in accordance with the procedures set forth in this Agreement, the maximum principal amount (expressed as a multiple of $1,000) of Notes that may be purchased with the Excess Proceeds, at a purchase price in cash equal to 100% of the principal amount thereof, plus accrued interest, if any, to the date such offer to purchase is consummated. To the extent that the aggregate principal amount of Notes tendered pursuant to such offer to purchase is less than the Excess Proceeds, the Company may use such deficiency for general corporate purposes. If the aggregate principal amount of Notes validly tendered and not withdrawn by holders thereof exceeds the Excess Proceeds, the Notes to be purchased will be selected on a pro rata basis. Upon completion of such offer to purchase, the amount of Excess Proceeds will be reset to zero.
(iii) 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 Excess Proceeds Offer. To the extent that the provisions of any securities laws or regulations conflict with the Asset Sales provisions of this Agreement, the Company will comply with the applicable securities laws and regulations and will not be deemed to have breached its obligations under Section 5(j) of this Agreement by virtue of such conflict.Contents
Appears in 1 contract
Asset Sales. (ia) The Company shall not, and shall not permit any of its Restricted Subsidiary Subsidiaries to, engage in any Asset Sale unless (x) the consideration received by the Company cause or such Restricted Subsidiary for such Asset Sale is not less than the fair market value of the assets sold evidenced by a resolution of the board of directors of such entity set forth in make an Officers' Certificate delivered to the Holders and (y) the consideration received by the Company or the relevant Restricted Subsidiary in respect of such Asset Sale consists of at least 75% cash or Cash Equivalents (for purposes of this clause (y), cash and Cash Equivalents includes (A) any liabilities (as reflected in the Company's consolidated balance sheet) of the Company or any Restricted Subsidiary (other than contingent liabilities and liabilities that are by their terms subordinated to the Notes or any Guarantee) that are assumed by any transferee of any such assets or other property in such Asset Sale, and where the Company or the relevant Restricted Subsidiary is released from any further liability in connection therewith with respect to such liabilities, (B) any securities, notes or other similar obligations received by the Company or any such Restricted Subsidiary from such transferee that are converted within 180 days of the consummation of the related Asset Sale by the Company or such Restricted Subsidiary into cash and Cash Equivalents (to the extent of the net cash proceeds or the Cash Equivalents (net of related costs) received upon such conversion) and (C) any Designated Noncash Consideration received by the Company or any such Restricted Subsidiary in the Asset Sale having an aggregate fair market value, as determined by the Board of the Company, taken together with all other Designated Noncash Consideration received pursuant to this clause that is at that time outstanding, not to exceed the greater ofunless:
(1) $10,000,000; and
(2) 15% of Consolidated Tangible Assets at the time of the receipt of such Designated Noncash Consideration (with the fair market value of each item of such Designated Noncash Consideration being measured at the time received and without giving effect to subsequent changes in value).
(ii) If the Company or any Restricted Subsidiary engages in an Asset Sale, the Company may, at its option, within 12 months after such Asset Sale, (1) apply all or a portion of the Net Cash Proceeds to the permanent reduction of amounts outstanding under the Credit Agreement (and to correspondingly reduce the commitments, if any, with respect thereto) or to the permanent repayment of other Senior Indebtedness of the Company or a Restricted Subsidiary, provided that the repayment of any Indebtedness incurred under the Credit Agreement in connection with the acquisition of any Facility with the proceeds of any subsequent Sale and Leaseback Transaction relating to such Facility shall not be required to result in the permanent reduction of the amounts outstanding under the Credit Agreement or correspondingly permanently reduce the commitments thereunder, or (2) invest (or enter into a legally binding agreement to invest) all or a portion of such Net Cash Proceeds in properties and assets to replace the properties and assets that were the subject of the Asset Sale or in properties and assets that will be used in the businesses of the Company or its Restricted Subsidiaries, as the case may be, existing receives consideration at the time of such Asset Sale at least equal to the Fair Market Value (as determined in good faith by the Company) of the assets sold or otherwise disposed of;
(2) except in the case of a Permitted Asset Swap, at least 75% of the consideration therefor received by the Company or such Restricted Subsidiary, as the case may be, is in the form of Cash Equivalents; provided that the amount of:
(i) any liabilities (as shown on the Closing Date Company’s or such Restricted Subsidiary’s most recent balance sheet or in businesses the same, similar notes thereto) of the Company or reasonably related thereto. If any Restricted Subsidiary of the Company (other than liabilities that are by their terms subordinated to the Notes) that are assumed by the transferee of any such legally binding agreement assets, and
(ii) any notes or other obligations or other securities or assets received by the Company or such Restricted Subsidiary of the Company from such transferee that are converted by the Company or such Restricted Subsidiary of the Company into cash within 180 days of the receipt thereof (to invest the extent of the cash received), shall each be deemed to be Cash Equivalents for the purposes of this Section 4.06;
(3) in addition to complying with the requirement in clause (4) below, with respect to any transaction or series of transactions constituting an Asset Sale involving the sale of one or more assets for aggregate consideration in excess of $25.0 million, the Company or any of its Restricted Subsidiaries, as the case may be, receives an appraisal from an independent valuation expert of national standing that the consideration to be received in such Asset Sale is at or above the Fair Market Value; and
(4) with respect to any transaction or series of transactions constituting an Asset Sale involving the sale of one or more assets for aggregate consideration in excess of $1.0 million, the Company delivers to the Trustee a resolution adopted in good faith by the majority of the disinterested members of the Board of Directors of the Company or equivalent governing body of a Restricted Subsidiary, determining that the consideration to be received for such asset is at or above the Fair Market Value, and set forth in an Officers’ Certificate certifying that such Asset Sale complies with this clause (4),
(b) Within six months after the Company or any Restricted Subsidiary of the Company’s receipt of the Net Cash Proceeds is terminatedof any Asset Sale, the Company mayor such Restricted Subsidiary may apply the Net Cash Proceeds from such Asset Sale, within 90 days at its option:
(i) to permanently reduce Indebtedness constituting First Lien Obligations and, in the case of revolver Obligations thereunder, to correspondingly reduce commitments with respect thereto;
(ii) to permanently reduce Obligations under (x) other Permitted Second Lien Obligations of the Company or the Subsidiary Guarantors (provided that if the Company or any Subsidiary Guarantor shall so reduce such termination Obligations under such other Permitted Second Lien Obligations, the Company will equally and ratably reduce Obligations under the Notes if the Notes are then prepayable or, if the Notes may not then be prepaid, by making an offer (in accordance with the procedures set forth below for 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 within 12 months (y) Indebtedness of a Restricted Subsidiary that is not a Guarantor, in each case, other than Indebtedness owed to the Company, Holdings or any of their Subsidiaries (provided that in the case of any reduction of any revolving obligations pursuant to this clause (ii), the Company or such Restricted Subsidiary shall effect a corresponding reduction of commitments with respect thereto);
(iii) to make an Investment in any one or more businesses (provided that if such Investment is in the form of the acquisition of Capital Stock of a Person, such acquisition results in such Person becoming a Restricted Subsidiary of the Company), or capital expenditures, in each case used or useful in a Similar Business; and/or
(iv) to make an Investment in any one or more businesses (provided that if such Investment is in the form of the acquisition of Capital Stock of a Person, such acquisition results in such Person becoming a Restricted Subsidiary of the Company), properties or assets that replace the properties and assets that are the subject of such Asset Sale, whichever in each case used or useful in a Similar Business; provided that in the case of clauses (iii) and (iv) above, a binding commitment shall be treated as a permitted application of the Net Cash Proceeds from the date of such commitment and, in the event such binding commitment is later, invest later canceled or terminated for any reason before such Net Cash Proceeds as are so applied, the Company or such Restricted Subsidiary enters into another binding commitment within three months of such cancellation or termination of the prior binding commitment; and provided in clause further that solely for the purposes of clauses (1iii) or and (2) (without regard to the parenthetical contained in such clause (2)iv) above, the definition of Similar Business is limited to any business engaged in by the Company or any of its Restricted Subsidiaries on the Issue Date. The amount of Net Cash Proceeds from Asset Sales that may be invested pursuant to clauses (iii) and (iv) above may not exceed $10.0 million in any twelve-month period and $40.0 million in the aggregate for all Asset Sales after the Issue Date. Pending the final application of any such Net Cash Proceeds, the Company or such Restricted Subsidiary of the Company may temporarily reduce Indebtedness under the revolving credit borrowings facility provided under the Credit Agreement, if any, or otherwise invest such Net Cash Proceeds in a manner that is not prohibited by this AgreementCash Equivalents or Investment Grade Securities. The amount of such Any Net Cash Proceeds from any Asset Sale that are not so used applied as provided and within the time period set forth above in this paragraph shall be deemed to constitute "“Excess Proceeds."
(c) ” When the aggregate amount of Excess Proceeds exceeds $10,000,00010.0 million, the Company will, within 30 days thereafter, shall make an offer to purchase (an "Excess Proceeds “Asset Sale Offer"”) from to all Holders of Notes (including PIK Notes and any increased principal amount of Notes as payment for PIK Interest) 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 or prepay 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 significant original issue discount, 100% of the accreted value thereof), plus accrued and unpaid interest, together with an amount of cash equal to all accrued and unpaid PIK 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 AgreementSection 4.06 and, in the maximum principal amount (expressed as a case of Notes, is an integral multiple of $1,000) of Notes 1.00. The Company shall commence an Asset Sale Offer with respect to Excess Proceeds within ten Business Days after the date that may be purchased with Excess Proceeds exceed $10.0 million by mailing the Excess Proceeds, at a purchase price in cash equal to 100% of the principal amount thereof, plus accrued interest, if any, notice required pursuant to the date such offer terms of Section 4.06(f), with a copy to purchase is consummatedthe Trustee. To the extent that the aggregate principal amount of Notes and such other Indebtedness tendered pursuant to such offer to purchase an Asset Sale Offer is less than the Excess Proceeds, the Company may use such deficiency any remaining Excess Proceeds for general corporate purposespurposes subject to any other restrictions set forth in this Indenture. If the aggregate principal amount of Notes validly tendered and not withdrawn Pari Passu Indebtedness, as appropriate, surrendered by holders or lenders thereof exceeds the amount of Excess Proceeds, the Trustee shall select the Notes to be purchased will be selected on a pro rata basisin the manner described in Section 4.06(e). Upon completion of any such offer to purchaseAsset Sale Offer, the amount of Excess Proceeds will shall be reset to at zero.
(iiic) The Company will shall comply with the requirements of Rule 14e-1 under the Exchange Act and any other securities laws and regulations thereunder to the extent such laws and or regulations are applicable in connection with each the repurchase of the Notes pursuant to an Excess Proceeds Asset Sale Offer. To the extent that the provisions of any securities laws or regulations conflict with the Asset Sales provisions of this AgreementIndenture, the Company will shall comply with the applicable securities laws and regulations and will shall not be deemed to have breached its obligations under described in this Indenture by virtue thereof.
(d) Not later than the date upon which written notice of an Asset Sale Offer is delivered to the Trustee as provided above, the Company shall deliver to the Trustee an Officers’ Certificate as to (i) the amount of the Excess Proceeds, (ii) the allocation of the Net Cash 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 5(j4.06(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 or Investment Grade Securities, as directed in writing by the Company, and to be held for payment in accordance with the provisions of this Agreement 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 Notes or portions thereof that have been properly tendered to and are to be accepted by virtue 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 Notes tendered, the Trustee shall deliver the excess to the Company immediately after the expiration of the Offer Period for application in accordance with Section 4.06.
(e) Holders electing to have a Note purchased shall be required to surrender the Notes, 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 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 Notes which was delivered by the Holder for purchase and a statement that such Holder is withdrawing his election to have such Notes purchased. If at the end of the Offer Period more Notes are tendered pursuant to an Asset Sale Offer than the Company is required to purchase, selection of such conflictNotes 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 listed by lot or such other method as the Trustee shall deem fair and appropriate (and in such manner as complies with applicable legal requirements); provided that the Trustee shall not select Notes for purchase which would result in a 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 delivered in accordance with the procedures of the Depository at least 30 but not more than 60 days before the purchase date to each Holder of Notes at such Holder’s registered address. 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 Notes 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 Company defaults in payment of the purchase price, interest shall cease to accrue on Notes or portions thereof purchased.
Appears in 1 contract
Samples: Indenture (Worldwide Recruiting & Staffing Services LLC)
Asset Sales. (ia) The Company shall will not, and shall will not permit any of its Restricted Subsidiary Subsidiaries to, engage in any consummate an Asset Sale unless unless:
(x1) the Company (or the Restricted Subsidiary, as the case may be) receives consideration at the time of the Asset Sale at least equal to the Fair Market Value (measured as of the date of the definitive agreement with respect to such Asset Sale) of the assets or Equity Interests issued or sold or otherwise disposed of; and
(2) at least 75% of the consideration received in the Asset Sale by the Company or such Restricted Subsidiary for such Asset Sale is not less than in the fair market value form of the assets sold evidenced by a resolution of the board of directors of such entity set forth in an Officers' Certificate delivered to the Holders and (y) the consideration received by the Company or the relevant Restricted Subsidiary in respect of such Asset Sale consists of at least 75% cash or Cash Equivalents (for Equivalents. For purposes of this clause (y)provision, cash and Cash Equivalents includes each of the following will be deemed to be cash:
(A) any liabilities (liabilities, as reflected in shown on the Company's ’s most recent consolidated balance sheet) , of the Company or any Restricted Subsidiary (other than contingent liabilities and liabilities that are by their terms subordinated to the Notes or any Note Guarantee) that are assumed by any the transferee of any such assets or other property in such Asset Sale, and where pursuant to a customary novation agreement that releases the Company or the relevant such Restricted Subsidiary is released from any further liability in connection therewith with respect to such liabilities, liability;
(B) any securities, notes or other similar obligations received by the Company or any such Restricted Subsidiary from such transferee that are converted within 180 days of the consummation of the related after such Asset Sale Sale, converted by the Company or such Restricted Subsidiary into cash and Cash Equivalents (cash, to the extent of the net cash proceeds or the Cash Equivalents (net of related costs) received upon such in that conversion) and ;
(C) any stock or assets of the kind referred to in Section 4.10(b)(2) or (4) hereof; and
(D) any Designated Noncash Consideration received by the Company or any such Restricted Subsidiary in the such Asset Sale having an aggregate fair market value, as determined by the Board of the CompanyFair Market Value, taken together with all other Designated Noncash Consideration received pursuant to this clause that is at that time outstanding(D), not to exceed the greater of:
(1) $10,000,000; and
(2) 15% of Consolidated Tangible Assets at the time of the receipt of such Designated Noncash Consideration (5.0 million, with the fair market value Fair Market Value of each item of such Designated Noncash Consideration being measured at the time received and without giving effect to subsequent changes in value).
(iib) If Within 360 days after the Company or receipt of any Restricted Subsidiary engages in Net Proceeds from an Asset Sale, the Company may(or the applicable Restricted Subsidiary, at its optionas the case may be) may apply such Net Proceeds:
(a) to repay Indebtedness and other Obligations under the Senior Credit Facility and to correspondingly permanently reduce any revolving commitments with respect thereto and (b) in the case of an Asset Sale of the asset or property of a Foreign Restricted Subsidiary of the Company, within 12 months to repay Indebtedness and other Obligations under the agreements governing Permitted Debt described in clause (16) of the definition thereof;
(2) to acquire all or substantially all of the assets of, or any Capital Stock of, another Person engaged in a Permitted Business, if, after giving effect to any such Asset Saleacquisition, the Permitted Business is or becomes a Restricted Subsidiary or a line of business of the Company;
(3) to make a capital expenditure;
(4) to acquire other assets that are not classified as current assets under GAAP and that are used or useful in a Permitted Business; and
(5) any combination of the foregoing; provided that in the case of clauses (2), (13) apply all or and (4) above, a portion binding commitment shall be treated as a permitted application of the Net Cash Proceeds to from the permanent reduction date of amounts outstanding under the Credit Agreement (and to correspondingly reduce the commitments, if any, with respect thereto) or to the permanent repayment of other Senior Indebtedness of such commitment so long as the Company or a such Restricted Subsidiary, provided that the repayment of any Indebtedness incurred under the Credit Agreement in connection with the acquisition of any Facility with the proceeds of any subsequent Sale and Leaseback Transaction relating to such Facility shall not be required to result in the permanent reduction of the amounts outstanding under the Credit Agreement or correspondingly permanently reduce the commitments thereunder, or (2) invest (or enter into a legally binding agreement to invest) all or a portion of such Net Cash Proceeds in properties and assets to replace the properties and assets that were the subject of the Asset Sale or in properties and assets that will be used in the businesses of the Company or its Restricted Subsidiaries, as the case may be, existing on enters into such commitment with the Closing Date or in businesses the same, similar or reasonably related thereto. If any such legally binding agreement to invest good faith expectation that such Net Cash Proceeds is terminated, the Company may, will be applied to satisfy such commitment within 90 180 days of such termination commitment and, in the event any such commitment is later cancelled or within 12 months of such Asset Saleterminated for any reason before the Net Proceeds are applied in connection therewith, whichever is later, invest then such Net Cash Proceeds must be applied as provided in clause (1) set forth herein or (2) (without regard if such cancellation or termination occurs later than the 360-day period referred to the parenthetical contained in such clause (2)) abovebelow, shall constitute Excess Proceeds. Pending the final application of any such Net Cash Proceeds, the Company may temporarily reduce revolving credit borrowings or otherwise invest such the Net Cash Proceeds in a any manner that is not prohibited by this Agreement. The amount of such Net Cash Proceeds not so used as set forth above in this paragraph shall constitute "Excess ProceedsIndenture."
(c) When Any Net Proceeds from Asset Sales that are not applied or invested as provided in the second paragraph of this covenant will constitute “Excess Proceeds.” Within 15 days after the aggregate amount of Excess Proceeds exceeds $10,000,00012.5 million, the Company will, within 30 days thereafter, will make an offer to purchase (an "Excess Proceeds “Asset Sale Offer"”) from to all Holders of Notes on a pro rata basis, in accordance with the procedures set forth in this Agreement, to purchase the maximum principal amount (expressed as a multiple of $1,000) of Notes that may be purchased with the Excess Proceeds, at a purchase . The offer price in cash any Asset Sale Offer will be equal to 100% of the principal amount thereof, plus accrued interestand unpaid interest and Additional Interest, if any, to the date such offer to purchase is consummatedof purchase, and will be payable in cash. To the extent that the aggregate principal amount If any Excess Proceeds remain after consummation of Notes tendered pursuant to such offer to purchase is less than the Excess Proceedsan Asset Sale Offer, the Company may use such deficiency those Excess Proceeds for general corporate purposesany purpose not otherwise prohibited by this Indenture. If the aggregate principal amount of Notes validly tendered and not withdrawn by holders thereof into such Asset Sale Offer exceeds the amount of Excess Proceeds, the Trustee will select the Notes to be purchased will be selected on a pro rata basis. Upon completion of such offer to purchaseeach Asset Sale Offer, the amount of Excess Proceeds will be reset to at zero.
(iiid) The Company Asset Sale Offer will comply with the requirements remain open for a period of Rule 14e-1 under the Exchange Act at least 20 Business Days following its commencement and any other securities laws and regulations thereunder not more than 30 Business Days, except to the extent such laws and regulations are that a longer period is required by applicable in connection with each repurchase law (the “Offer Period”). No later than three Business Days after the termination of Notes pursuant to an Excess Proceeds Offer. To the extent that Offer Period (the provisions of any securities laws or regulations conflict with the Asset Sales provisions of this Agreement“Purchase Date”), the Company will comply apply all Excess Proceeds (the “Offer Amount”) to the purchase of Notes or, if less than the Offer Amount has been tendered, all Notes tendered in response to the Asset Sale Offer. Payment for any Notes so purchased will be made in the same manner as interest payments are made. If the Purchase Date is on or after an interest record date and on or before the related interest payment date, any accrued and unpaid interest, premium, if any, and Additional Interest, if any, will be paid to the Person in whose name a Note is registered at the close of business on such record date. Upon the commencement of an Asset Sale Offer, the Company will send, by first class mail, a notice to the Trustee and each of the Holders, which contains all instructions and materials necessary to enable such Holders to tender Notes pursuant to the Asset Sale Offer. The notice, which will govern the terms of the Asset Sale Offer, will state:
(1) that the Asset Sale Offer is being made pursuant to this Section 4.10 and the length of time the Asset Sale Offer will remain open;
(2) the Offer Amount, the purchase price and the Purchase Date;
(3) that any Note not tendered or accepted for payment will continue to accrue interest;
(4) that, unless the Company defaults in making such payment, any Note accepted for payment pursuant to the Asset Sale Offer will cease to accrue interest after the Purchase Date;
(5) that Holders electing to have a Note purchased pursuant to an Asset Sale Offer may elect to have Notes purchased in integral multiples of $1,000 only; provided that no Notes in denominations of $2,000 or less may be redeemed or purchased in part;
(6) that Holders electing to have Notes purchased pursuant to any Asset Sale Offer will be required to surrender the Note, with the applicable securities laws form entitled “Option of Holder to Elect Purchase” attached to the Notes completed, or transfer by book-entry transfer, to the Company, a Depositary, if appointed by the Company, or a Paying Agent at the address specified in the notice at least three days before the Purchase Date;
(7) that Holders will be entitled to withdraw their election if the Company, the Depositary or the Paying Agent, as the case may be, receives, not later than the expiration of the Offer Period, a telegram, facsimile transmission or letter setting forth the name of the Holder, the principal amount of the Note the Holder delivered for purchase and regulations a statement that such Holder is withdrawing his election to have such Note purchased;
(8) that, if the aggregate principal amount of Notes surrendered by the Holders exceeds the Offer Amount, the Trustee will select the Notes to be purchased on a pro rata basis; and
(9) that Holders whose Notes were purchased only in part will be issued new Notes equal in principal amount to the unpurchased portion of the Notes surrendered (or transferred by book-entry transfer). On or before the Purchase Date, the Company will, to the extent lawful, accept for payment, on a pro rata basis to the extent necessary, the Offer Amount of Notes or portions thereof tendered pursuant to the Asset Sale Offer, or if less than the Offer Amount has been tendered, all Notes tendered, and will not deliver or cause to be deemed delivered to have breached its obligations under Section 5(j) the Trustee the Notes properly accepted together with an Officers’ Certificate stating that such Notes or portions thereof were accepted for payment by the Company in accordance with the terms of this Agreement Section 4.10. The Company, the Depositary or the Paying Agent, as the case may be, will promptly (but in any case not later than five days after the Purchase Date) mail or deliver to each tendering Holder an amount equal to the purchase price of the Notes tendered by virtue such Holder and accepted by the Company for purchase, and the Company will promptly issue a new Note, and the Trustee, upon written request from the Company, will authenticate and mail or deliver (or cause to be transferred by book entry) such new Note to such Holder, in a principal amount equal to any unpurchased portion of such conflictthe Note surrendered. Any Note not so accepted shall be promptly mailed or delivered by the Company to the Holder thereof. The Company will publicly announce the results of the Asset Sale Offer on the Purchase Date. Other than as specifically provided in this Section 4.10, any purchase pursuant to this Section 4.10 shall be made pursuant to the provisions of Sections 3.01 through 3.06 hereof.
Appears in 1 contract
Samples: Indenture (Castle a M & Co)
Asset Sales. (i) The Company shall not, and shall not permit any of its Restricted Subsidiary Subsidiaries to: (i) sell, engage lease, convey or otherwise dispose of any assets or rights (including by way of a sale-and-leaseback) other than sales of inventory in the ordinary course of business (provided that the sale, lease, conveyance or other distribution of all or substantially all of the assets of the Company and its Restricted Subsidiaries, taken as a whole, shall be governed by the provisions of Sections 4.14 and 5.01 hereof and not by the last paragraph of this section), or (ii) with respect to the Company, sell Equity Interests in any of its Subsidiaries, or (iii) with respect to the Company's Restricted Subsidiaries, issue Equity Interests (each of the foregoing, an "Asset Sale Sale"), unless (x) the Company (or the Restricted Subsidiary, as the case may be) receives consideration received by at the Company or such Restricted Subsidiary for time of such Asset Sale is not less than at least equal to the fair market value of the assets sold (evidenced by a resolution of the board Board of directors of such entity Directors set forth in an Officers' Certificate delivered to the Holders Trustee) of the assets sold or otherwise disposed of and (y) the consideration received by the Company or the relevant Restricted Subsidiary in respect of such Asset Sale consists of at least 75% cash or Cash Equivalents (for purposes of this clause (y), cash and Cash Equivalents includes (A) any liabilities (as reflected in the Company's consolidated balance sheet) of the Company or any Restricted Subsidiary (other than contingent liabilities and liabilities that are by their terms subordinated to the Notes or any Guarantee) that are assumed by any transferee of any such assets or other property in such Asset Sale, and where the Company or the relevant Restricted Subsidiary is released from any further liability in connection therewith with respect to such liabilities, (B) any securities, notes or other similar obligations consideration received by the Company or any such Restricted Subsidiary from such transferee that are converted within 180 days of the consummation of the related Asset Sale therefor by the Company or such Restricted Subsidiary into is in the form of cash and Cash Equivalents or other Qualified Proceeds. Notwithstanding the foregoing, the following shall not be deemed to be Asset Sales: (to the extent of the net cash proceeds i) any single transaction or the Cash Equivalents (net series of related coststransactions that (a) received upon such conversion) and (C) any Designated Noncash Consideration received by the Company or any such Restricted Subsidiary in the Asset Sale involves assets having an aggregate fair market value, as determined by the Board of the Company, taken together with all other Designated Noncash Consideration received pursuant to this clause that is at that time outstanding, not to exceed the greater of:
(1) $10,000,000; and
(2) 15% of Consolidated Tangible Assets at the time of the receipt of such Designated Noncash Consideration (with the a fair market value of each item less than $2.0 million or (b) results in net proceeds to the Company and its Restricted Subsidiaries of such Designated Noncash Consideration being measured at the time received and without giving effect to subsequent changes in value).
less than $2.0 million, (ii) If a transfer of assets between or among the Company and any Restricted Subsidiary, (iii) an issuance of Equity Interests by a Restricted Subsidiary to the Company or to another Wholly Owned Restricted Subsidiary, (iv) the sale, lease, conveyance or other disposition of any Receivable Program Assets by the Company or any Restricted Subsidiary engages in an connection with a Receivables Program, (v) the sale, lease, conveyance or other disposition of any inventory, receivables or other current assets by the Company or any of its Restricted Subsidiaries in the ordinary course of business, (vi) the granting of a Xxxxxxxxx Xxxx, (xx) the licensing by the Company or any Restricted Subsidiary of intellectual property in the ordinary course of business or on commercially reasonable terms, (vii) the sale, lease, conveyance or other disposition of obsolete or worn out equipment or equipment no longer useful in the Company's business, and (viii) the making or liquidating of any Restricted Payment or Permitted Investment that is permitted by Section 4.07 hereof. Within 365 days after the receipt of any Net Proceeds from any Asset Sale, the Company may(or such Restricted Subsidiary) may apply such Net Proceeds from such Asset Sale, at its option, within 12 months after either (a) to repay Permitted Bank Debt, and if such Asset SalePermitted Bank Debt is revolving debt, to effect a corresponding commitment reduction thereunder, (1b) apply to acquire all or a portion substantially all of the Net Cash Proceeds to the permanent reduction of amounts outstanding under the Credit Agreement (and to correspondingly reduce the commitmentsassets of, if any, with respect thereto) or to the permanent repayment of other Senior Indebtedness a majority of the Company or Voting Stock of, another Permitted Business, (c) to make a Restricted Subsidiary, provided that the repayment of any Indebtedness incurred under the Credit Agreement in connection with the acquisition of any Facility with the proceeds of any subsequent Sale and Leaseback Transaction relating to such Facility shall not be required to result in the permanent reduction of the amounts outstanding under the Credit Agreement or correspondingly permanently reduce the commitments thereundercapital expenditure, or (2d) invest (or enter into a legally binding agreement to invest) all or a portion of such Net Cash Proceeds in properties and assets to replace the properties and acquire any other long-term assets that were the subject of the Asset Sale are used or useful in properties and assets that will be used in the businesses of the Company or its Restricted Subsidiaries, as the case may be, existing on the Closing Date or in businesses the same, similar or reasonably related thereto. If any such legally binding agreement to invest such Net Cash Proceeds is terminated, the Company may, within 90 days of such termination or within 12 months of such Asset Sale, whichever is later, invest such Net Cash Proceeds as provided in clause (1) or (2) (without regard to the parenthetical contained in such clause (2)) abovea Permitted Business. Pending the final application of any such Net Cash Proceeds, the Company (or such Restricted Subsidiary) may temporarily reduce revolving credit borrowings or otherwise invest such Net Cash Proceeds in a any manner that is not prohibited by this AgreementIndenture. The amount Any Net Proceeds from such Asset Sale that are not finally applied or invested as provided in the first sentence of such Net Cash Proceeds not so used as set forth above in this paragraph shall will be deemed to constitute "Excess Proceeds."
(c) When " Within five days of each date on which the aggregate amount of Excess Proceeds exceeds $10,000,00010 million, the Company will, within 30 days thereafter, make an offer to purchase (an "Excess Proceeds Offer") from all Holders of Notes on shall commence a pro rata basisAsset Sale Offer pursuant to Section 3.09 hereof to purchase the maximum principal amount of Notes that may be purchased out of the Excess Proceeds at an offer price in cash in an amount equal to 100% of the principal amount thereof plus accrued and unpaid interest to the date fixed for the closing of such offer, in accordance with the procedures set forth in this Agreement, the maximum principal amount (expressed as a multiple of $1,000) of Notes that may be purchased with the Excess Proceeds, at a purchase price in cash equal to 100% of the principal amount thereof, plus accrued interest, if any, to the date such offer to purchase is consummatedSection 3.09 hereof. To the extent that the aggregate principal amount of Notes tendered pursuant to such offer to purchase an Asset Sale Offer is less than the Excess Proceeds, the Company (or such Subsidiary) may use such deficiency for general corporate purposes. If the aggregate principal amount of Notes validly tendered and any purpose not withdrawn otherwise prohibited by holders thereof exceeds the Excess Proceeds, the Notes to be purchased will be selected on a pro rata basisthis Indenture. Upon completion of such offer to purchase, the amount of Excess Proceeds will be deemed to be reset to at zero.
(iii) 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 Excess Proceeds Offer. To the extent that the provisions of any securities laws or regulations conflict with the Asset Sales provisions of this Agreement, the Company will comply with the applicable securities laws and regulations and will not be deemed to have breached its obligations under Section 5(j) of this Agreement by virtue of such conflict.
Appears in 1 contract
Samples: Indenture (Amkor Technology Inc)
Asset Sales. (ia) The Company Issuer shall not, and shall not permit any of the Restricted Subsidiary Subsidiaries to, engage in any cause or make an Asset Sale Sale, unless (x) the Issuer or any Restricted Subsidiary, as the case may be, receives consideration received by at the Company or such Restricted Subsidiary for time of such Asset Sale is not less than at least equal to the fair market value Fair Market Value (as determined in good faith by the Issuer) of the assets sold evidenced by a resolution or otherwise disposed of the board of directors of such entity set forth in an Officers' Certificate delivered to the Holders and (y) the consideration received by the Company or the relevant Restricted Subsidiary in respect of such Asset Sale consists of at least 75% cash of the consideration therefor received by the Issuer or such Restricted Subsidiary, as the case may be, is in the form of Cash Equivalents (for purposes Equivalents; provided that the provisions of this clause (y)) shall not apply to any individual transaction or series of related transactions involving assets with a Fair Market Value (as determined in good faith by the Issuer) of less than $5 million or to other transactions involving assets with a Fair Market Value (as determined in good faith by the Issuer) of not more than $15 million in the aggregate for all such transactions during the term of this Indenture; provided, cash and Cash Equivalents includes further, that the amount of:
(Ai) any liabilities (as reflected shown on the Issuer’s or a Restricted Subsidiary’s most recent balance sheet or in the Company's consolidated balance sheetnotes thereto) of the Company Issuer or any a Restricted Subsidiary (other than contingent liabilities and liabilities that are by their terms subordinated to the Notes or any Subsidiary Guarantee) that are assumed by any the transferee of any such assets or other property in such Asset Sale, and where the Company that are otherwise cancelled or the relevant Restricted Subsidiary is released from any further liability terminated in connection therewith with respect to the transaction with such liabilities, transferee,
(Bii) any securities, notes or other similar obligations or other securities or assets received by the Company Issuer or any such Restricted Subsidiary from such transferee that are converted within 180 days of the consummation of the related Asset Sale by the Company Issuer or such Restricted Subsidiary into cash and Cash Equivalents within 180 days of the receipt thereof (to the extent of the net cash proceeds received),
(iii) Indebtedness of any Restricted Subsidiary that is no longer a Restricted Subsidiary as a result of such Asset Sale, to the extent that the Issuer and each other Restricted Subsidiary are released from any guarantee of payment of such Indebtedness in connection with the Asset Sale, and
(iv) consideration consisting of Indebtedness of the Issuer or a Restricted Subsidiary (other than Subordinated Indebtedness) received after the Issue Date from Persons who are not the Issuer or any Restricted Subsidiary, shall in each case be deemed to be Cash Equivalents for the purposes of this Section 4.06(a).
(net b) Within six months after the Issuer’s or any Restricted Subsidiary’s receipt of related coststhe Net Proceeds of any Asset Sale, the Issuer or such Restricted Subsidiary may apply an amount equal to the amount of Net Proceeds from such Asset Sale, at its option:
(i) received upon such conversionto repay (A) Indebtedness constituting First-Priority Obligations (and, if the Indebtedness repaid is revolving credit Indebtedness, to 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 other than First-Priority Obligations so long as the Net Proceeds are with respect to assets not constituting Collateral (provided that if the Issuer or any Subsidiary Guarantor shall so reduce Obligations under Pari Passu Indebtedness that does not constitute First-Priority Obligations under this clause (D) (which, for the avoidance of doubt, does not include Indebtedness described in clauses (A), (B) and (C) any Designated Noncash Consideration received by even if such Indebtedness may also constitute Pari Passu Indebtedness), the Company Issuer will equally and ratably reduce Notes Obligations pursuant to Section 3.01, through open-market purchases (provided that such purchases are at or any such Restricted Subsidiary 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 having an aggregate fair market value, as determined by the Board Offer) to all holders to purchase a pro rata principal amount of Notes at a purchase price equal to 100% of the Companyprincipal amount thereof (or, taken together in the event that the Notes were issued with all other Designated Noncash Consideration received pursuant to this clause that is at that time outstandingsignificant original issue discount, not to exceed the greater of:
(1) $10,000,000; and
(2) 15100% of Consolidated Tangible Assets at the time of the receipt of such Designated Noncash Consideration (with the fair market accreted value of each item of such Designated Noncash Consideration being measured at the time received thereof), plus accrued and without giving effect to subsequent changes in valueunpaid interest, if any).; or
(ii) If to make an investment in any one or more businesses (provided that if such investment is in the Company or any form of the acquisition of Capital Stock of a Person, such acquisition results in such Person becoming a Restricted Subsidiary engages of the Issuer or in an Asset Sale, increase in the Company may, at its option, within 12 months after such Asset Sale, percentage ownership by the Issuer (1) apply all or a portion of the Net Cash Proceeds to the permanent reduction of amounts outstanding under the Credit Agreement (and to correspondingly reduce the commitments, if any, with respect thereto) or to the permanent repayment of other Senior Indebtedness of the Company or a Restricted Subsidiary) in such Restricted Subsidiary), provided that the repayment of any Indebtedness incurred under the Credit Agreement in connection with the acquisition of any Facility with the proceeds of any subsequent Sale assets (other than cash and Leaseback Transaction relating to such Facility shall not be required to result in the permanent reduction of the amounts outstanding under the Credit Agreement or correspondingly permanently reduce the commitments thereundercash equivalents, accounts receivable and other working capital assets), or property or capital expenditures, in each case (2A) invest used or useful in a Similar Business or (or enter into a legally binding agreement to investB) all or a portion of such Net Cash Proceeds in properties and assets to that replace the properties and assets that were are the subject of such Asset Sale or, in each case, 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; provided, that to the extent the assets or Equity Interests sold in such Asset Sale constituted Collateral for the Notes, the Issuer and its Restricted Subsidiaries shall reinvest such proceeds in accordance with this clause (ii) in assets that are or become owned by the Issuer or a Subsidiary Guarantor or in properties and assets persons that will be used in the businesses of the Company are or its Restricted Subsidiaries, as the case may be, existing on the Closing Date or in businesses the same, similar or reasonably related thereto. If any such legally binding agreement to invest such Net Cash Proceeds is terminated, the Company may, within 90 days of such termination or within 12 months of such Asset Sale, whichever is later, invest such Net Cash Proceeds as provided in clause (1) or (2) (without regard to the parenthetical contained in such clause (2)) abovebecome Subsidiary Guarantors. Pending the final application of any such Net Cash Proceedsamount, the Company Issuer or such Restricted Subsidiary may temporarily reduce Indebtedness under a revolving credit borrowings facility or otherwise invest use such Net Cash Proceeds amount in a any manner that is not prohibited by this AgreementIndenture. The If the Issuer has not applied an amount of equal to such Net Cash Proceeds not so used from any Asset Sale as provided and within the time period set forth above in the two immediately preceding paragraphs of this paragraph Section 4.06(b), then, in lieu of applying such amount in such manner, such unapplied amount (it being understood that any amount 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 so applied whether or not such offer is accepted) will be deemed to constitute "“Excess Proceeds."
(c) When ”. If the aggregate amount of Excess Proceeds exceeds $10,000,00050 million, the Company will, within 30 days thereafter, Issuer shall make an offer to purchase all holders of Notes (and, at the option of the Issuer, to holders of any other First-Priority Obligations or, so long as the Net Proceeds are with respect to assets not constituting 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 $1 and an integral multiple of $1 in excess thereof that may be purchased out of the Excess Proceeds Offer") from all Holders at an offer price in cash in an amount equal to 100% of the principal amount thereof (or, in the event the Notes on a pro rata basisor such First-Priority Obligations or other Pari Passu Indebtedness were 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 Obligations or other Pari Passu Indebtedness, such lesser price, if any, as may be offered to the holders of such First-Priority Obligations or other Pari Passu Indebtedness), to, but excluding, the date fixed for the closing of such offer, in accordance with the procedures set forth in this AgreementSection 4.06. The Issuer will commence an Asset Sale Offer with respect to Excess Proceeds within ten Business Days after the date that the aggregate amount of Excess Proceeds exceeds $50 million by mailing, or delivering electronically if held by the Depository, the maximum principal notice required pursuant to the terms of this Indenture, with a copy to the Trustee. The Issuer may, at its option, satisfy the foregoing obligations with respect to an amount (expressed as a multiple equal to or less than the amount of any Net Proceeds from an Asset Sale by making an Asset Sale Offer prior to the expiration of the relevant six months or with respect to Excess Proceeds of $1,000) of Notes 50 million or less (it being understood that may be purchased such amount used to make an Asset Sale Offer shall satisfy the foregoing obligations with the Excess Proceeds, at a purchase price in cash equal respect to 100% of the principal such amount thereof, plus accrued interest, if any, to the date whether or not such offer to purchase Asset Sale Offer is consummatedaccepted). To the extent that the aggregate principal amount of Notes (and such First-Priority Obligations or, so long as the Net Proceeds are with respect to assets not constituting Collateral, other Pari Passu Indebtedness) tendered pursuant to such offer to purchase an Asset Sale Offer is less than the Excess ProceedsProceeds or such lesser amount offered, the Company Issuer and the Restricted Subsidiaries may use any remaining Excess Proceeds or such deficiency lesser amount offered for general corporate purposesany purpose that is not prohibited by this Indenture and shall not be required to use them for any other purpose. If the aggregate principal amount of Notes validly tendered (and not withdrawn such First-Priority Obligations or other Pari Passu Indebtedness) surrendered by holders thereof exceeds the amount of Excess Proceeds, the Issuer shall select the Notes to be purchased will be selected on a pro rata basisin the manner described in Section 4.06(e). Upon completion of any such offer to purchaseAsset Sale Offer, the amount of Excess Proceeds will shall be reset to zerozero (regardless of whether there are any remaining Excess Proceeds upon such completion).
(iiic) The Company 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 and or regulations are applicable in connection with each the repurchase of the Notes pursuant to an Excess Proceeds Asset Sale Offer. To the extent that the provisions of any securities laws or regulations conflict with the Asset Sales provisions of this AgreementIndenture, the Company Issuer will comply with the applicable securities laws and regulations and will shall not be deemed to have breached its obligations under described in this Indenture by virtue thereof.
(d) Not later than the date upon which written notice of an Asset Sale Offer is delivered to the Trustee as provided above, the Issuer shall deliver to the Trustee an Officer’s Certificate as to (i) the amount of the Excess Proceeds, (ii) the allocation of the Net Proceeds from the Asset Sales pursuant to which such Asset Sale Offer is being made and (iii) the compliance of such allocation with the provisions of Section 5(j4.06(b). On such date, the Issuer shall also irrevocably deposit with the Trustee or with the 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 Agreement 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 virtue 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 facsimile transmission or letter setting forth the name of the holder, the principal amount of the Note which was delivered by the holder for purchase and a statement that such xxxxxx is withdrawing his election to have such Note purchased. If at the end of the Offer Period more Notes (and such First-Priority Obligations or, so long as the Net Proceeds are with respect to assets not constituting Collateral, other Pari Passu Indebtedness) are tendered pursuant to an Asset Sale Offer than the Issuer is required to purchase, selection of such conflictNotes for purchase shall be made by the Issuer 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 (and in such manner as complies with the requirements of the Depository, if applicable); provided that no Notes of $1 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 Issuer by first-class mail, postage prepaid, or delivered electronically if held by the Depository, at least 30 but not more than 60 days before the purchase date to each holder of Notes at such holder’s registered address. If any Note is to be purchased in part only, any notice of purchase that relates to such Note shall state the portion of the principal amount thereof that has been or is to be purchased.
Appears in 1 contract
Asset Sales. (ia) The Company shall not, and shall not permit any Restricted Subsidiary to, engage in any cause, make or suffer to exist an Asset Sale, unless:
(1) the Company or such Restricted Subsidiary, as the case may be, receives consideration at the time of such Asset Sale unless at least equal to the fair market value (xas determined in good faith by the Company) of the assets sold or otherwise disposed of; and
(2) except in the case of a Permitted Asset Swap, at least 75% of the consideration therefor received by the Company or such Restricted Subsidiary for such Asset Sale Subsidiary, as the case may be, is not less than in the fair market value form of the assets sold evidenced by a resolution of the board of directors of such entity set forth in an Officers' Certificate delivered to the Holders and (y) the consideration received by the Company or the relevant Restricted Subsidiary in respect of such Asset Sale consists of at least 75% cash or Cash Equivalents (for purposes of this clause (y), cash and Cash Equivalents includes Equivalents; provided that the amount of:
(A) any liabilities (as reflected shown on the most recent consolidated balance sheet of the Company or in the Company's consolidated balance sheetfootnotes thereto) of the Company or any such Restricted Subsidiary (Subsidiary, other than contingent liabilities and liabilities that are by their terms subordinated to the Notes or any Guarantee) Notes, that are assumed by any the transferee of any such assets (or other property in such Asset Sale, a third party on behalf of the transferee) and where for which the Company or the relevant such Restricted Subsidiary is has been validly released from any further liability in connection therewith with respect to such liabilities, by all creditors,
(B) any securities, notes or other similar obligations or assets received by the Company or any such Restricted Subsidiary from such transferee that are converted within 180 days of the consummation of the related Asset Sale by the Company or such Restricted Subsidiary into cash and Cash Equivalents (to the extent of the net cash proceeds or received) within 180 days following the Cash Equivalents (net closing of related costs) received upon such conversion) and Asset Sale, and
(C) any Designated Noncash Consideration received by the Company or any such Restricted Subsidiary in the such Asset Sale having an aggregate fair market value, as determined by the Board of the Company, taken together with all other Designated Noncash Consideration received pursuant to this clause (C) that is at that time outstanding, not to exceed the greater of:
of (1x) $10,000,000; and
300.0 million and (2y) 153.0% of Consolidated Tangible Total Assets at the time of the receipt of such Designated Noncash Consideration (Consideration, with the fair market value of each item of such Designated Noncash Consideration being measured at the time received and without giving effect to subsequent changes in value), shall be deemed to be cash for purposes of this provision and for no other purpose.
(b) Within 450 days after any of the Company’s or any Restricted Subsidiary’s receipt of the Net Proceeds of any Asset Sale, the Company or such Restricted Subsidiary may, at its option, apply the Net Proceeds from such Asset Sale:
(1) to permanently reduce (a) Obligations under any Senior Indebtedness of the Company, the Issuer or any Guarantor (other than Obligations owed to the Company or a Restricted Subsidiary) and, in the case of Obligations under revolving credit facilities or other similar Indebtedness, to correspondingly permanently reduce commitments with respect thereto; provided that if the Company, the Issuer or any such Guarantor shall so reduce Obligations under any Senior Indebtedness that is not secured by a Lien permitted by this Indenture, the Company, the Issuer or such Guarantor shall, equally and ratably, reduce Obligations under the Notes by, at its option, (i) redeeming Notes, (ii) If making an offer (in accordance with the procedures set forth under Section 4.10(c) hereof) to all Holders to purchase their Notes at 100% of the principal amount thereof, plus the amount of accrued and unpaid interest, if any, on the principal amount of Notes to be repurchased or (iii) 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 (b) Indebtedness of a Restricted Subsidiary that is not the Issuer or a Guarantor other than Indebtedness owed to the Company or another Restricted Subsidiary; 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 Company or any Restricted Subsidiary engages owning an amount of the Capital Stock of such business such that it constitutes a Restricted Subsidiary, (B) an investment in an Asset Saleproperties, (C) capital expenditures and (D) acquisitions of other assets, that in each of (A), (B), (C) and (D), are used or useful in the business of the Company mayand in Restricted Subsidiaries or replace the businesses, at its option, within 12 months after properties and assets that are the subject of such Asset Sale, .
(1c) apply all Any Net Proceeds from the Asset Sale that are not invested or a portion applied in accordance with Section 4.10(b) within 450 days from the date of the receipt of such Net Cash Proceeds shall be deemed to the permanent reduction of amounts outstanding under the Credit Agreement (and to correspondingly reduce the commitments, constitute “Excess Proceeds”; provided that if any, with respect thereto) or to the permanent repayment of other Senior Indebtedness of during such 450-day period the Company or a Restricted Subsidiary, provided that the repayment of any Indebtedness incurred under the Credit Agreement Subsidiary enters into a definitive binding agreement committing it to apply such Net Proceeds in connection accordance with the acquisition requirements of any Facility with the proceeds of any subsequent Sale and Leaseback Transaction relating to such Facility shall not be required to result in the permanent reduction of the amounts outstanding under the Credit Agreement or correspondingly permanently reduce the commitments thereunder, or clause (2) invest of the immediately preceding paragraph after such 450th day, such 450-day period shall be extended with respect to the amount of Net Proceeds so committed until such Net Proceeds are required to be applied in accordance with such agreement (or enter into but such extension shall in no event be for a legally binding agreement to investperiod longer than 180 days) all or a portion (or, if earlier, the date of termination of such Net Cash Proceeds in properties and assets to replace the properties and assets that were the subject of the Asset Sale or in properties and assets that will be used in the businesses of the Company or its Restricted Subsidiaries, as the case may be, existing on the Closing Date or in businesses the same, similar or reasonably related theretoagreement). If any such legally binding agreement to invest such Net Cash Proceeds is terminated, the Company may, within 90 days of such termination or within 12 months of such Asset Sale, whichever is later, invest such Net Cash Proceeds as provided in clause (1) or (2) (without regard to the parenthetical contained in such clause (2)) above. Pending the final application of any such Net Cash Proceeds, the Company may temporarily reduce revolving credit borrowings or otherwise invest such Net Cash Proceeds in a manner that is not prohibited by this Agreement. The amount of such Net Cash Proceeds not so used as set forth above in this paragraph shall constitute "Excess Proceeds."
(c) When the aggregate amount of Excess Proceeds exceeds $10,000,000100.0 million, the Company will, within 30 days thereafter, Issuer shall make an offer to purchase all Holders and, if required by the terms of any Senior Indebtedness of the Company or any Restricted Subsidiary, to the holders of such Senior Indebtedness (other than with respect to Hedging Obligations) (an "Excess Proceeds “Asset Sale Offer") from all Holders ”), to purchase the maximum aggregate principal amount of Notes on a pro rata basisand such Senior Indebtedness that, in accordance with the procedures set forth in this Agreementcase of the Notes, the maximum principal amount (expressed as is a minimum of €100,000 or an integral multiple of $1,000) of Notes €1,000 in excess thereof and that may be purchased with out of the Excess Proceeds, Proceeds at a purchase 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 offer, in accordance with the procedures set forth in this Indenture. The Issuer shall commence an Asset Sale Offer with respect to purchase is consummatedExcess 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 principal amount of Notes and such Senior Indebtedness tendered pursuant to such offer to purchase an Asset Sale Offer is less than the Excess Proceeds, the Company may use such deficiency any remaining Excess Proceeds for general corporate purposes, subject to the other covenants contained in this Indenture. If the aggregate principal amount of Notes validly tendered and not withdrawn or the Senior Indebtedness surrendered by such holders thereof exceeds the amount of Excess Proceeds, the Issuer shall select or cause to be selected the Notes and such Senior Indebtedness to be purchased will be selected on a pro rata basisbasis based on the accreted value or principal amount of the Notes or such Senior Indebtedness tendered. Upon completion of any such offer to purchaseAsset Sale Offer, the amount of Excess Proceeds will related to such Asset Sale Offer shall be reset at zero. Pending the final application of any Net Proceeds pursuant to zero.
(iii) this Section 4.10, the Company or the applicable Restricted Subsidiary may apply such Net Proceeds temporarily to reduce Indebtedness outstanding under a revolving credit facility or otherwise invest such Net Proceeds in any manner not prohibited by this Indenture. The Company will 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 and or regulations are applicable in connection with each the repurchase of the Notes pursuant to an Excess Proceeds Asset Sale Offer. To the extent that the provisions of any securities laws or regulations conflict with the Asset Sales provisions of this AgreementIndenture, the Company will Issuer shall comply with the applicable securities laws and regulations and will shall not be deemed to have breached its obligations under Section 5(j) of described in this Agreement Indenture by virtue of such conflictthereof.
Appears in 1 contract
Samples: Indenture (Aramark)
Asset Sales. (i) The Company shall not, and shall not permit any Restricted Subsidiary to, engage in directly or indirectly, consummate any Asset Disposition, which term does not include a Sale unless of a Principal Property or a Transfer of the Fibers Business unless:
(x1) the Company or the Restricted Subsidiary receives consideration at the time of such Asset Disposition at least equal to the fair market value, as determined in good faith by the Board of Directors (including as to the value of all noncash consideration), of the shares and assets subject to such Asset Disposition and at least 85% of the consideration thereof received by the Company or such Restricted Subsidiary for such Asset Sale is not less than in the fair market value form of the assets sold evidenced by a resolution of the board of directors of such entity set forth in an Officers' Certificate delivered to the Holders and (y) the consideration received by the Company or the relevant Restricted Subsidiary in respect of such Asset Sale consists of at least 75% cash or Cash Equivalents (for purposes of this clause (y), cash and Cash Equivalents includes (A) any liabilities (as reflected in the Company's consolidated balance sheet) of the Company or any Restricted Subsidiary (other than contingent liabilities and liabilities that are by their terms subordinated to the Notes or any Guarantee) that are assumed by any transferee of any such assets or other property in such Asset Sale, and where the Company or the relevant Restricted Subsidiary is released from any further liability in connection therewith with respect to such liabilities, (B) any securities, notes or other similar obligations received by the Company or any such Restricted Subsidiary from such transferee that are converted within 180 days of the consummation of the related Asset Sale by the Company or such Restricted Subsidiary into cash and Cash Equivalents (to the extent of the net cash proceeds or the Cash Equivalents (net of related costs) received upon such conversion) and (C) any Designated Noncash Consideration received by the Company or any such Restricted Subsidiary in the Asset Sale having an aggregate fair market value, as determined by the Board of the Company, taken together with all other Designated Noncash Consideration received pursuant to this clause that is at that time outstanding, not to exceed the greater of:
(1) $10,000,000equivalents; and
(2) 15an amount equal to 100% of Consolidated Tangible Assets at the time Net Available Cash from such Asset Disposition is applied by the Company (or such Restricted Subsidiary, as the case may be):
(A) first, to the extent the Company elects (or is required by the terms of any Senior Debt), to prepay, repay or purchase Senior Debt or Senior Debt (other than any Redeemable Stock) of a Wholly Owned Subsidiary (in each ease other than Debt owed to the Company or an Affiliate of the Company or Holdings) within 180 days from the later of the date of such Asset Disposition or the receipt of such Designated Noncash Consideration (with the fair market value of each item of such Designated Noncash Consideration being measured at the time received and without giving effect to subsequent changes in value).Net Available Cash;
(iiB) If second, to the Company or any Restricted Subsidiary engages in an Asset Sale, the Company may, at its option, within 12 months after such Asset Sale, (1) apply all or a portion extent of the Net Cash Proceeds to the permanent reduction of amounts outstanding under the Credit Agreement (and to correspondingly reduce the commitments, if any, with respect thereto) or to the permanent repayment of other Senior Indebtedness of the Company or a Restricted Subsidiary, provided that the repayment of any Indebtedness incurred under the Credit Agreement in connection with the acquisition of any Facility with the proceeds of any subsequent Sale and Leaseback Transaction relating to such Facility shall not be required to result in the permanent reduction of the amounts outstanding under the Credit Agreement or correspondingly permanently reduce the commitments thereunder, or (2) invest (or enter into a legally binding agreement to invest) all or a portion balance of such Net Available Cash Proceeds after application in properties and accordance with clause (A), at the Company's election to the investment by the Company, any Wholly Owned Subsidiary or the Restricted Subsidiary making such Asset Disposition in assets to replace the properties and assets that were the subject of the Asset Sale or in properties and assets that will be used in the businesses of the Company or its Restricted Subsidiaries, as the case may be, existing on the Closing Date or in businesses the same, similar or reasonably related thereto. If any such legally binding agreement to invest such Net Cash Proceeds is terminated, the Company may, within 90 days of such termination or within 12 months of such Asset Sale, whichever is later, invest such Net Cash Proceeds as provided in clause (1) or (2) (without regard to the parenthetical contained in such clause (2)) above. Pending the final application of any such Net Cash Proceeds, the Company may temporarily reduce revolving credit borrowings or otherwise invest such Net Cash Proceeds in a manner that is not prohibited by this Agreement. The amount of such Net Cash Proceeds not so used as set forth above in this paragraph shall constitute "Excess Proceeds."
(c) When the aggregate amount of Excess Proceeds exceeds $10,000,000, the Company will, within 30 days thereafter, make an offer to purchase (an "Excess Proceeds Offer") from all Holders of Notes on a pro rata basis, in accordance with the procedures set forth in this Agreement, the maximum principal amount (expressed as a multiple of $1,000) of Notes that may be purchased with the Excess Proceeds, at a purchase price in cash equal to 100% of the principal amount thereof, plus accrued interest, if any, to the date such offer to purchase is consummated. To the extent that the aggregate principal amount of Notes tendered pursuant to such offer to purchase is less than the Excess Proceeds, the Company may use such deficiency for general corporate purposes. If the aggregate principal amount of Notes validly tendered and not withdrawn by holders thereof exceeds the Excess Proceeds, the Notes to be purchased will be selected on a pro rata basis. Upon completion of such offer to purchase, the amount of Excess Proceeds will be reset to zero.
(iii) 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 Excess Proceeds Offer. To the extent that the provisions of any securities laws or regulations conflict with the Asset Sales provisions of this Agreement, the Company will comply with the applicable securities laws and regulations and will not be deemed to have breached its obligations under Section 5(j) of this Agreement by virtue of such conflict.Asset
Appears in 1 contract
Samples: Indenture (Sterling Chemical Inc)
Asset Sales. (i) The Company Borrower shall not, and shall not permit any Restricted Subsidiary of its Subsidiaries to, engage (i) sell, lease, convey or otherwise dispose of any assets (including by way of a sale-and-leaseback) other than sales of inventory in the ordinary course of business consistent with past practice (provided that the sale, lease, conveyance or other disposition of all or substantially all of the assets of the Borrower shall be governed by the provisions of Section 7.03 hereof and not by the provisions of this Section 7.02), or (ii) issue or sell Equity Interests of any of its Subsidiaries, in the case of either clause (i) or (ii) above, whether in a single transaction or a series of related transactions, (A) that have a fair market value in excess of $5,000,000, or (B) for net proceeds in excess of $5,000,000 (each of the foregoing, an "Asset Sale Sale"), unless (xX) the Borrower (or the Subsidiary, as the case may be) receives consideration received by at the Company or such Restricted Subsidiary for time of such Asset Sale is not less than at least equal to the fair market value of the assets sold (evidenced by a resolution of the board of directors of the General Partner (and, if applicable, the audit committee of such entity board of directors) set forth in an Officers' Certificate a certificate signed by a Responsible Officer and delivered to the Holders Administrative Agent) of the assets sold or otherwise disposed of and (yY) at least 80% of the consideration therefor received by the Company Borrower or such Subsidiary is in the relevant Restricted Subsidiary in respect form of such Asset Sale consists cash; provided, however, that the amount of at least 75% cash or Cash Equivalents (for purposes of this clause (y), cash and Cash Equivalents includes (A1) any liabilities (as reflected shown on the Borrower's or such Subsidiary's most recent balance sheet or in the Company's consolidated balance sheet) notes thereto), of the Company Borrower or any Restricted Subsidiary (other than contingent liabilities and liabilities that are by their terms subordinated in right of payment to the Notes or any GuaranteeObligations hereunder) that are assumed by any the transferee of any such assets or other property in such Asset Sale, and where the Company or the relevant Restricted Subsidiary is released from any further liability in connection therewith with respect to such liabilities, (B2) any securities, notes or other similar obligations received by the Company Borrower or any such Restricted Subsidiary from such transferee that are immediately converted within 180 days of the consummation of the related Asset Sale by the Company Borrower or such Restricted Subsidiary into cash and Cash Equivalents (to the extent of the net cash proceeds or received), shall be deemed to be cash for purposes of this provision; and provided, further, that the Cash Equivalents 80% limitation referred to in this clause (net of related costsY) received upon such conversion) and (C) shall not apply to any Designated Noncash Consideration received by the Company or any such Restricted Subsidiary in the Asset Sale having an aggregate fair market value, as determined by in which the Board of the Company, taken together with all other Designated Noncash Consideration received pursuant to this clause that is at that time outstanding, not to exceed the greater of:
(1) $10,000,000; and
(2) 15% of Consolidated Tangible Assets at the time of the receipt of such Designated Noncash Consideration (with the fair market value of each item of such Designated Noncash Consideration being measured at the time received and without giving effect to subsequent changes in value).
(ii) If the Company or any Restricted Subsidiary engages in an Asset Sale, the Company may, at its option, within 12 months after such Asset Sale, (1) apply all or a cash portion of the Net Cash Proceeds to the permanent reduction of amounts outstanding under the Credit Agreement (and to correspondingly reduce the commitmentsconsideration received therefrom, if any, with respect thereto) or to the permanent repayment of other Senior Indebtedness of the Company or a Restricted Subsidiary, provided that the repayment of any Indebtedness incurred under the Credit Agreement in connection with the acquisition of any Facility with the proceeds of any subsequent Sale and Leaseback Transaction relating to such Facility shall not be required to result in the permanent reduction of the amounts outstanding under the Credit Agreement or correspondingly permanently reduce the commitments thereunder, or (2) invest (or enter into a legally binding agreement to invest) all or a portion of such Net Cash Proceeds in properties and assets to replace the properties and assets that were the subject of the Asset Sale or in properties and assets that will be used in the businesses of the Company or its Restricted Subsidiaries, as the case may be, existing on the Closing Date or in businesses the same, similar or reasonably related thereto. If any such legally binding agreement to invest such Net Cash Proceeds is terminated, the Company may, within 90 days of such termination or within 12 months of such Asset Sale, whichever is later, invest such Net Cash Proceeds as provided in clause (1) or (2) (without regard to the parenthetical contained in such clause (2)) above. Pending the final application of any such Net Cash Proceeds, the Company may temporarily reduce revolving credit borrowings or otherwise invest such Net Cash Proceeds in a manner that is not prohibited by this Agreement. The amount of such Net Cash Proceeds not so used as set forth above in this paragraph shall constitute "Excess Proceeds."
(c) When the aggregate amount of Excess Proceeds exceeds $10,000,000, the Company will, within 30 days thereafter, make an offer to purchase (an "Excess Proceeds Offer") from all Holders of Notes on a pro rata basis, determined in accordance with the procedures set forth in this Agreementforegoing proviso, is equal to or greater than what the maximum principal amount (expressed as a multiple of $1,000) of Notes that may be purchased after-tax proceeds would have been had such Asset Sale complied with the Excess Proceedsaforementioned 80% limitation. Notwithstanding the foregoing, at a purchase price in cash equal to 100% of the principal amount thereof, plus accrued interest, if any, to the date such offer to purchase is consummated. To the extent that the aggregate principal amount of Notes tendered pursuant to such offer to purchase is less than the Excess Proceeds, the Company may use such deficiency for general corporate purposes. If the aggregate principal amount of Notes validly tendered and not withdrawn by holders thereof exceeds the Excess Proceeds, the Notes to be purchased will be selected on a pro rata basis. Upon completion of such offer to purchase, the amount of Excess Proceeds will be reset to zero.
(iii) 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 Excess Proceeds Offer. To the extent that the provisions of any securities laws or regulations conflict with the Asset Sales provisions of this Agreement, the Company will comply with the applicable securities laws and regulations and will shall not be deemed to have breached include (x) any transfer of assets by the Borrower or any of its obligations Subsidiaries to a Subsidiary of the Borrower that is a Guarantor, (y) any transfer of assets by the Borrower or any of its Subsidiaries to any Person in exchange for other assets used in a line of business permitted under Section 5(j7.15 hereof and having a fair market value not less than that of the assets so transferred and (z) any transfer of this Agreement by virtue of such conflictassets pursuant to a Permitted Investment.
Appears in 1 contract
Samples: Short Term Revolving Credit Agreement (Ferrellgas Partners Finance Corp)
Asset Sales. (i) The Company shall will not, and shall will not permit any of its Restricted Subsidiary Subsidiaries to, engage in any consummate an Asset Sale unless unless:
(x1) the Company (or the Restricted Subsidiary, as the case may be) receives consideration at the time of the Asset Sale at least equal to the Fair Market Value of the assets or Equity Interests issued or sold or otherwise disposed of; and
(2) at least 75% of the consideration received in the Asset Sale by the Company or such Restricted Subsidiary for such is in the form of cash or Cash Equivalents, provided that if the aggregate consideration received in the Asset Sale is not less than the fair market value $15.0 million, this condition will be satisfied if at least 70% of the assets sold evidenced by a resolution of the board of directors of such entity set forth in an Officers' Certificate delivered to the Holders and (y) the consideration received in the Asset Sale by the Company or the relevant such Restricted Subsidiary is in respect the form of such Asset Sale consists of at least 75% cash or Cash Equivalents (for Equivalents. For purposes of this clause (y)provision, cash and Cash Equivalents includes each of the following shall be deemed to be cash:
(A) any liabilities (as reflected in the Company's consolidated balance sheet) of the Company or any Restricted Subsidiary (other than contingent liabilities and liabilities that are by their terms subordinated to the Notes or any Subsidiary Guarantee) that are assumed by any the transferee of any such assets or other property in such Asset Sale, and where as a result of which the Company or the relevant such Restricted Subsidiary is released from any further liability in connection therewith with respect to such liabilities, liability;
(B) any securities, notes or other similar obligations received by the Company or any such Restricted Subsidiary from such transferee that are are, within 120 days, converted within 180 days of the consummation of the related Asset Sale by the Company or such Restricted Subsidiary into cash and or Cash Equivalents (Equivalents, to the extent of the net cash proceeds or the Cash Equivalents (net of related costs) received upon such in that conversion) and ;
(C) any 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;
(D) any assets that are not classified as current assets under GAAP and that are used or useful in a Permitted Business; and
(E) any Designated Noncash Non-cash Consideration received by the Company or any such Restricted Subsidiary in the such Asset Sale having an aggregate fair market value, as determined by the Board of the Company, taken together with all other Designated Noncash Non-cash Consideration received pursuant to this clause (e) that is at that time outstanding, not to exceed the greater of:
(1) $10,000,000; and
(2) 15% of Consolidated Tangible Assets 25.0 million at the time of the receipt of such Designated Noncash Consideration (Non-cash Consideration, with the fair market value of each item of such Designated Noncash Non-cash Consideration being measured at the time received and without giving effect to subsequent changes in value).
(ii) If . Within 365 days after the Company or receipt of any Restricted Subsidiary engages in Net Proceeds from an Asset Sale, the Company may, at its option, within 12 months after such Asset Sale, (1) apply all or a portion of the Net Cash Proceeds to the permanent reduction of amounts outstanding under the Credit Agreement (and to correspondingly reduce the commitments, if any, with respect thereto) or to the permanent repayment of other Senior Indebtedness of the Company or a applicable Restricted Subsidiary, provided that the repayment of any Indebtedness incurred under the Credit Agreement in connection with the acquisition of any Facility with the proceeds of any subsequent Sale and Leaseback Transaction relating to such Facility shall not be required to result in the permanent reduction of the amounts outstanding under the Credit Agreement or correspondingly permanently reduce the commitments thereunder, or (2) invest (or enter into a legally binding agreement to invest) all or a portion of such Net Cash Proceeds in properties and assets to replace the properties and assets that were the subject of the Asset Sale or in properties and assets that will be used in the businesses of the Company or its Restricted Subsidiaries, as the case may be, existing on the Closing Date or in businesses the same, similar or reasonably related thereto. If any such legally binding agreement ) may apply an amount equal to invest such those Net Cash Proceeds is terminated, the Company may, within 90 days of such termination or within 12 months of such Asset Sale, whichever is later, invest such Net Cash Proceeds as provided in clause at its option:
(1) or 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;
(without regard 3) to the parenthetical contained 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 such clause a Permitted Business, or enter into a binding commitment regarding clauses (2), (3) or (4) above, provided that such binding commitment shall be treated as a permitted application of Net Proceeds from the date of such commitment until and only until the earlier of (x) the date on which such acquisition or expenditure is consummated and (y) the 180th day following the expiration of the aforementioned 365 day period. If such acquisition or expenditure is not consummated on or before such 180th day and the Company or such Restricted Subsidiary shall not have applied an amount equal to such Net Proceeds pursuant to clause (1)-(4) of this paragraph on or before such 180th day, such commitment shall be deemed not to have been a permitted application of Net Proceeds. Pending the final application of any such Net Cash Proceeds, the Company may temporarily reduce revolving credit borrowings or otherwise invest such Net Cash Proceeds in a any manner that is not prohibited by this AgreementIndenture. The amount of such Any Net Cash Proceeds from Asset Sales that are not so used applied or invested as set forth above provided in this the preceding paragraph shall will constitute "“Excess Proceeds."
(c) ” When the aggregate amount of Excess Proceeds exceeds $10,000,00025.0 million, the Company will, within 30 days thereafter, will make an offer Asset Sale Offer to purchase (an "Excess Proceeds Offer") from all Holders of Notes and all holders of other Indebtedness that is pari passu with the Notes containing provisions similar to those set forth in this Indenture with respect to offers to purchase or redeem with the proceeds of sales of assets in accordance with Section 3.09 hereof to purchase the maximum principal amount of Notes and such other pari passu Indebtedness that may be purchased out of the Excess Proceeds. The offer price in any Asset Sale Offer will be equal to 100% of principal amount plus accrued and unpaid interest, if any, to, but excluding, the date of purchase, and will be payable in cash (subject to the right of Holders to receive interest due on the relevant interest payment date). With respect to any Asset Sale Offer, the Excess Proceeds shall be applied (i) first to purchase or redeem the maximum principal amount of Senior Notes and such other Indebtedness pari passu with the Senior Notes (on a pro rata basis, in accordance with the procedures set forth in this Agreementif applicable) and (ii) second, if any Excess Proceeds remain following such purchase or redemption, to purchase or redeem the maximum principal amount (expressed as a multiple of $1,000) of Notes that may be purchased and such other Indebtedness pari passu with the Notes. If any Excess Proceeds, at a purchase price in cash equal to 100% Proceeds remain after consummation of the principal amount thereof, plus accrued interest, if any, to the date such offer to purchase is consummated. To the extent that the aggregate principal amount of Notes tendered pursuant to such offer to purchase is less than the Excess Proceedsan Asset Sale Offer, the Company may use such deficiency Excess Proceeds for general corporate purposesany purpose not otherwise prohibited by this Indenture. If the aggregate principal amount of Senior Notes and such other Indebtedness pari passu with the Senior Notes tendered into such Asset Sale Offer exceeds the amount of Excess Proceeds, the Trustee will select the Senior Notes and such other Indebtedness pari passu with the Senior Notes to be purchased on a pro rata basis. If the aggregate principal amount of Notes validly and such other Indebtedness pari passu with the Notes tendered and not withdrawn by holders thereof into such Asset Sale Offer exceeds the amount of Excess ProceedsProceeds following the purchase in full of all of the Senior Notes and such other Indebtedness pari passu with the Senior Notes, the Trustee will select the Notes and such other Indebtedness pari passu with the Notes to be purchased will be selected on a pro rata basis. Upon completion of such offer to purchaseeach Asset Sale Offer, the amount of Excess Proceeds will shall be reset to at zero.
(iii) . 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 Excess Proceeds Asset Sale Offer. To the extent that the provisions of any securities laws or regulations conflict with the Asset Sales provisions of Sections 3.09 or 4.10 of this AgreementIndenture, the Company will comply with the applicable securities laws and regulations and will not be deemed to have breached its obligations under Section 5(j) of 3.09 or this Agreement Section 4.10 by virtue of such conflictcompliance.
Appears in 1 contract
Samples: First Supplemental Indenture (DRS Technologies Inc)
Asset Sales. (ia) The Company shall not, and shall not permit any of the Restricted Subsidiary Subsidiaries to, engage in any cause or make an Asset Sale Sale, unless (x) the Company or 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 in good faith by the Company) of the assets sold or otherwise disposed of, and (y) at least 75% of the consideration therefor received by the Company or such Restricted Subsidiary for such Asset Sale Subsidiary, as the case may be, is not less than in the fair market value form of the assets sold evidenced by a resolution of the board of directors of such entity set forth in an Officers' Certificate delivered to the Holders and (y) the consideration received by the Company or the relevant Restricted Subsidiary in respect of such Asset Sale consists of at least 75% cash or Cash Equivalents Equivalents; provided that the amount of:
(for purposes of this clause (y), cash and Cash Equivalents includes (Ai) any liabilities (as reflected shown on the Company’s or a Restricted Subsidiary’s most recent balance sheet or in the Company's consolidated balance sheetnotes thereto) of the Company or any a Restricted Subsidiary (other than contingent liabilities and liabilities that are by their terms subordinated to the Notes or any Guarantee) that are assumed by any the transferee of any such assets or other property in such Asset Sale, and where the Company that are otherwise cancelled or the relevant Restricted Subsidiary is released from any further liability terminated in connection therewith with respect to the transaction with such liabilities, transferee,
(Bii) any securities, notes or other similar obligations or other securities or assets received by the Company or any such Restricted Subsidiary from such transferee that are converted within 180 days of the consummation of the related Asset Sale by the Company or such Restricted Subsidiary into cash and Cash Equivalents within 180 days of the receipt thereof (to the extent of the net cash proceeds or received),
(iii) Indebtedness of any Restricted Subsidiary that is no longer a Restricted Subsidiary as a result of such Asset Sale, to the Cash Equivalents extent that the Company and each other Restricted Subsidiary are released from any guarantee of payment of such Indebtedness in connection with the Asset Sale,
(net iv) consideration consisting of related costsIndebtedness of the Company (other than Subordinated Indebtedness) received upon such conversion) and after the Issue Date from Persons who are not the Company or any Restricted Subsidiary, and
(Cv) any Designated Noncash Non-cash Consideration received by the Company or any such Restricted Subsidiary in the such Asset Sale having an aggregate fair market value, Fair Market Value (as determined in good faith by the Board of the Company), taken together with all other Designated Noncash Non-cash Consideration received pursuant to this clause Section 4.06(a)(v) that is at that time outstanding, not to exceed the greater of:
(1) $10,000,000; and
(2) 15% of Consolidated Tangible Assets at the time of the receipt of such Designated Noncash Consideration 75.0 million (with the fair market value Fair Market Value of each item of such Designated Noncash Non-cash Consideration being measured at the time received and without giving effect to subsequent changes in value), shall be deemed to be Cash Equivalents for the purposes of this Section 4.06(a).
(iib) If Within 365 days after the Company Company’s or any Restricted Subsidiary engages in an Subsidiary’s receipt of the Net Proceeds of any Asset Sale, the Company mayor such Restricted Subsidiary may apply the Net Proceeds from such Asset Sale, at its option:
(i) to repay, within 12 months after such Asset Saleprepay, purchase, redeem, acquire or otherwise reduce (1A) apply all or Indebtedness constituting Credit Facility Indebtedness and other Pari Passu Indebtedness that is secured by a portion of Lien permitted under this Indenture (and, if the Net Cash Proceeds to the permanent reduction of amounts outstanding under the Credit Agreement (and Indebtedness repaid is revolving credit Indebtedness, to correspondingly reduce commitments with respect thereto), (B) Indebtedness of a Restricted Subsidiary that is not a Guarantor, (C) Obligations under the commitmentsNotes or (D) other Pari Passu Indebtedness (provided that if the Company or any Guarantor shall so reduce the Obligations under unsecured Pari Passu Indebtedness under this clause (D), the Company will equally and ratably reduce Notes Obligations pursuant to Section 3.01, through open-market purchases (provided that such purchases are at or above 100% of the 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, with respect thereto) or on the pro rata principal amount of Notes), in each case other than Indebtedness owed to the permanent repayment of other Senior Indebtedness of the Company or a Restricted Subsidiary, provided that an Affiliate of the repayment Company; or
(ii) to invest in Replacement Assets or to reimburse the cost of any Indebtedness investment in Replacement Assets incurred under on or after the Credit Agreement in connection with the acquisition of any Facility with the proceeds of any subsequent Sale and Leaseback Transaction relating to such Facility shall not be required to result in the permanent reduction of the amounts outstanding under the Credit Agreement or correspondingly permanently reduce the commitments thereunder, or (2) invest (or enter into a legally binding agreement to invest) all or a portion of such Net Cash Proceeds in properties and assets to replace the properties and assets that were the subject of date on which the Asset Sale or in properties and assets that will giving rise to such Net Proceeds was contractually committed. In the case of Section 4.06(b)(ii), a binding commitment entered into not later than such 365th day shall be used in treated as a permitted application of the businesses Net Proceeds from the date of such commitment so long as the Company or its such Restricted Subsidiaries, as Subsidiary enters into such commitment with the case may be, existing on the Closing Date or in businesses the same, similar or reasonably related thereto. If any such legally binding agreement to invest good faith expectation that such Net Cash Proceeds is terminated, the Company may, will be applied to satisfy such commitment within 90 180 days of such termination commitment; provided that in the event such binding commitment is later canceled or within 12 months of such Asset Sale, whichever is later, invest terminated for any reason before such Net Cash Proceeds as provided in clause (1) or (2) (without regard to the parenthetical contained in are so applied, then such clause (2)) aboveNet Proceeds shall constitute Excess Proceeds. Pending the final application of any such Net Cash Proceeds, the Company or such Restricted Subsidiary may temporarily reduce Indebtedness under a revolving credit borrowings facility, if any, or otherwise invest such Net Cash Proceeds in a any manner that is not prohibited by this AgreementIndenture. The amount Any Net Proceeds from any Asset Sale that are not applied as provided and within the time period set forth in the first sentence of this Section 4.06(b) (it being understood that any portion of such Net Cash 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 so used as set forth above in this paragraph shall such offer is accepted) will be deemed to constitute "“Excess Proceeds."
(c) ” When the aggregate amount of Excess Proceeds exceeds $10,000,00075.0 million, the Company will, within 30 days thereafter, shall make an offer to purchase all holders of Notes (and, at the option of the Company, 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 be purchased out of the Excess Proceeds Offer") from all Holders at an offer price in cash in an amount equal to 100% of the principal amount thereof (or, in the event the Notes on a pro rata basisor 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 be provided for by the terms of such other Pari Passu Indebtedness), to, but excluding, the date fixed for the closing of such offer, in accordance with the procedures set forth in this AgreementIndenture. The Company will commence an Asset Sale Offer with respect to Excess Proceeds within ten (10) Business Days after the date that Excess Proceeds exceeds $75.0 million by mailing, or delivering electronically if the Notes are held by the Depository, the maximum principal amount (expressed as a multiple of $1,000) of Notes that may be purchased with the Excess Proceeds, at a purchase price in cash equal to 100% of the principal amount thereof, plus accrued interest, if any, notice required pursuant to the date such offer terms of this Indenture, with a copy to purchase is consummatedthe Trustee. To the extent that the aggregate principal amount of Notes (and such other Pari Passu Indebtedness) tendered pursuant to such offer to purchase an Asset Sale Offer is less than the Excess Proceeds, the Company may use such deficiency any remaining Excess Proceeds for general corporate purposesany purpose that is not prohibited by this Indenture. If the aggregate principal amount of Notes validly tendered (and not withdrawn such other Pari Passu Indebtedness) surrendered by holders thereof exceeds the amount of Excess Proceeds, the Trustee, upon receipt of notice from the Company of the aggregate principal amount to be selected, shall select the Notes to be purchased will be selected on a pro rata basisin the manner described in Section 4.06(e). Upon completion of any such offer to purchaseAsset Sale Offer, the amount of Excess Proceeds will shall be reset to at zero.
(iiic) The Company will comply with the requirements of Rule 14e-1 under the Exchange Act and any other securities laws and regulations thereunder to the extent such laws and or regulations are applicable in connection with each the repurchase of the Notes pursuant to an Excess Proceeds Asset Sale Offer. To the extent that the provisions of any securities laws or regulations conflict with the Asset Sales provisions of this AgreementIndenture, the Company will comply with the applicable securities laws and regulations and will shall not be deemed to have breached its obligations under Section 5(j) of described in this Agreement Indenture by virtue thereof.
(d) Not later than the date upon which written notice of an Asset Sale Offer is delivered to the Trustee as provided above, the Company shall deliver to the Trustee an Officers’ Certificate as to (i) the amount of the Excess Proceeds, (ii) the allocation of the Net Proceeds from the Asset Sales pursuant to which such Asset Sale Offer is being made and (iii) the compliance of such conflictallocation with the provisions of Section 4.06(b).
(e) Holders electing to have a Note purchased shall be required to surrender such Note, with an appropriate form duly completed, to the Company at the address specified in the notice at least three Business Days prior to the purchase date. Holders shall be entitled to withdraw their election if the Trustee or the Company receives not later than one Business Day prior to the purchase date, a telegram, telex, facsimile transmission or letter setting forth the name of the holder, the principal amount of the Note which was delivered by the holder for purchase and a statement that such holder is withdrawing his election to have such Note purchased. If at the expiration of the period for which the Asset Sale Offer remains open more Notes (and such other Pari Passu Indebtedness) are tendered pursuant to an Asset Sale Offer than the Company is required to purchase, selection of such Notes for purchase shall be made by the Trustee in compliance with the requirements of the principal national securities exchange, if any, on which such Notes are listed (and the Company 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 Notes of $2,000 or less shall be purchased in part. Selection of such other Pari Passu Indebtedness shall be made pursuant to the terms of such other Pari Passu Indebtedness.
(f) Notices of an Asset Sale Offer shall be mailed by the Company by first class mail, postage prepaid, or delivered electronically if held by the Depository, at least 30 but not more than 60 days before the purchase date to each holder of Notes at such holder’s registered address. If any Note is to be purchased in part only, any notice of purchase that relates to such Note shall state the portion of the principal amount thereof that has been or is to be purchased.
Appears in 1 contract
Samples: Indenture (Enpro Industries, Inc)
Asset Sales. The Borrower will not, and will not permit any of its Restricted Subsidiaries to Dispose of any asset, including any Equity Interest owned by it, except:
(a) (i) The Company Dispositions of inventory, used, worn-out, obsolete or surplus equipment, or Cash and Cash Equivalents, in each case in the ordinary course of business or (ii) the abandonment or other Disposition of Intellectual Property that is, in the reasonable judgment of the Borrower, no longer economically practical or commercially reasonable to maintain or useful in any material respect in the conduct of the business of the Borrower and its Restricted Subsidiaries, taken as a whole, in the ordinary course of business;
(b) Dispositions to the Borrower or a Restricted Subsidiary; provided that any such sales, transfers or dispositions involving a Restricted Subsidiary that is not a Loan Party shall be made in compliance with Section 6.09;
(c) other Dispositions of assets for fair market value, provided that the Borrower or any of its Restricted Subsidiaries shall receive not less than 75% of total consideration expected to be received for such sale, transfer or other disposition in the form of Cash and Cash Equivalents (in each case, free and clear of all Liens at the time received); provided that, the value of (i) retained licenses, licenses back to the Borrower or its Restricted Subsidiaries (as a licensee) and covenants not-to-xxx with respect to software or Intellectual Property that are incidental to such sale, transfer or other Disposition and received in the ordinary course for such transactions and (ii) the surrender, waiver, settlement, compromise or release of any claim against the Borrower or any of its Restricted Subsidiaries in connection therewith shall be excluded in determining whether 75% of the consideration received is in the form of Cash and Cash Equivalents; provided that Designated Non-Cash Consideration, together with Designated Non-Cash Consideration deemed cash pursuant to the last proviso to Section 6.05, in an amount up to $2,500,000 for any individual Disposition and $5,000,000 in the aggregate for all Dispositions during the term of this Agreement shall be deemed cash for these purposes; provided further that this clause (c) shall not permit Dispositions of the Equity Interests of any Subsidiary other than (i) in connection with the sale of substantially all Equity Interests of such Subsidiary or (ii) in connection with third-party investments in or the sale of Equity Interests of any Unrestricted Subsidiary.
(d) (i) Leases, subleases, licenses or sublicenses of property (excluding Sale and Leaseback Transactions) and termination thereof by the Borrower or any Restricted Subsidiary toin the ordinary course of business or that do not materially impair the operation of the Borrower’s or its Restricted Subsidiaries’ business, engage (ii) Leases and subleases of real property located at Xxxxxxx Business Park in Rochester, NY and (iii) sales of assets pursuant to Sale and Leaseback Transactions permitted by Section 6.06;
(e) mergers, consolidations, liquidations, amalgamations and dissolutions, in each case in compliance with Section 6.03(a);
(f) Dispositions of Accounts in connection with the compromise, settlement or collection thereof in the ordinary course of business or in bankruptcy, workout or similar proceedings;
(g) to the extent constituting a Disposition, the granting of Liens permitted as Permitted Encumbrances and the making of investments permitted by Section 6.04 or the making of a Restricted Payment permitted by Section 6.08;
(h) Dispositions of property to the extent that (i) such property is exchanged for credit against the purchase price of similar replacement property or (ii) the proceeds of such Disposition are promptly applied to the purchase price of such replacement property;
(i) transfers of property or assets subject to casualty or condemnation;
(j) Dispositions set forth on Schedule 6.05;
(k) Dispositions of Investments in joint ventures (including non-wholly owned Unrestricted Subsidiaries) to the extent required by, or made pursuant to customary buy/sell arrangements between, the joint venture parties set forth in joint venture arrangements and similar binding arrangements;
(l) the unwinding of any Asset Sale unless Hedging Agreement pursuant to its terms;
(m) Dispositions of Accounts that are owned by Foreign Subsidiaries (i) for fair market value or (ii) subject to customary factoring or receivables financing arrangements;
(n) Dispositions of claims that the Borrower or any Restricted Subsidiary may maintain (i) in connection with the settlement of, or judgments in respect of such claims or (ii) to the relevant insurance provider in connection with the receipt of insurance proceeds related to any such claims; and
(o) Dispositions of Intellectual Property in the form of licenses of Intellectual Property to third parties, including exclusive licenses, cross licenses, and covenants not to xxx or similar rights with respect to Intellectual Property granted (i) in the ordinary course of business, (ii) in connection with a settlement of litigation, or (iii) in connection with a divestiture of product, product line, business unit or division (either in its entirety or in a particular geographical region); provided that no granting of any exclusive licenses of Intellectual Property other than trademarks under clause (i) of this clause (o) shall be permitted to the extent such exclusive license (A) materially impairs, limits, or restricts the operation of the Borrower or its Restricted Subsidiaries’ businesses, or (B) in the case of a license which constitutes, in whole or in part, a transfer of title of the licensed Intellectual Property, such license may be exclusive solely with respect to the use of the licensed Intellectual Property in discrete geographical areas or discrete product/services categories, in each case, in which the Borrower or any of its Subsidiaries do not have material operations relating to the licensed Intellectual Property. Notwithstanding anything to the contrary herein, (i) all Dispositions permitted hereby shall be made for fair value (other than those permitted by clauses (a)(ii), (c), (d)(i), (d)(ii), (e), (g), (i), (k), (l), (n) and (o) of this Section 6.05) and (ii) at least seventy-five percent (75%) consideration consisting of Cash and Cash Equivalents (other than those permitted by clauses (a)(ii), (b), (c) (to the extent otherwise permitted therein), (d), (e), (f), (g), (h), (i), (j), (k), (n) and (o) of this Section 6.05); provided, that, the value of (x) retained licenses, licenses back to the consideration Borrower or its Restricted Subsidiaries (as a licensee) and covenants not-to-xxx with respect to software or Intellectual Property that are incidental to such sale, transfer or other Disposition and received by in the Company or such Restricted Subsidiary ordinary course for such Asset Sale is not less than the fair market value of the assets sold evidenced by a resolution of the board of directors of such entity set forth in an Officers' Certificate delivered to the Holders transactions and (y) the consideration received by surrender, waiver, settlement, compromise or release of any claim against the Company or the relevant Restricted Subsidiary in respect of such Asset Sale consists of at least 75% cash or Cash Equivalents (for purposes of this clause (y), cash and Cash Equivalents includes (A) any liabilities (as reflected in the Company's consolidated balance sheet) of the Company Borrower or any of its Restricted Subsidiary (other than contingent liabilities and liabilities that are by their terms subordinated to the Notes or any Guarantee) that are assumed by any transferee of any such assets or other property in such Asset Sale, and where the Company or the relevant Restricted Subsidiary is released from any further liability Subsidiaries in connection therewith shall be excluded in determining whether 75% of the consideration received is in the form of Cash and Cash Equivalents; provided further that at the option of the Borrower, with respect to such liabilitiesany Disposition, (B) any securitiesDesignated Non-Cash Consideration, notes or other similar obligations received by the Company or any such Restricted Subsidiary from such transferee that are converted within 180 days of the consummation of the related Asset Sale by the Company or such Restricted Subsidiary into together with Designated Non-Cash Consideration deemed cash and Cash Equivalents (pursuant to the extent of the net cash proceeds or the Cash Equivalents (net of related costs) received upon such conversion) and (C) any Designated Noncash Consideration received by the Company or any such Restricted Subsidiary Section 6.05(c), in an amount up to $5,000,000 in the Asset Sale having an aggregate fair market value, as determined by the Board of the Company, taken together with all other Designated Noncash Consideration received pursuant to this clause that is at that time outstanding, not to exceed the greater of:
(1) $10,000,000; and
(2) 15% of Consolidated Tangible Assets at the time of the receipt of such Designated Noncash Consideration (with the fair market value of each item of such Designated Noncash Consideration being measured at the time received and without giving effect to subsequent changes in value).
(ii) If the Company or any Restricted Subsidiary engages in an Asset Sale, the Company may, at its option, within 12 months after such Asset Sale, (1) apply all or a portion of the Net Cash Proceeds to the permanent reduction of amounts outstanding under the Credit Agreement (and to correspondingly reduce the commitments, if any, with respect thereto) or to the permanent repayment of other Senior Indebtedness of the Company or a Restricted Subsidiary, provided that the repayment of any Indebtedness incurred under the Credit Agreement in connection with the acquisition of any Facility with the proceeds of any subsequent Sale and Leaseback Transaction relating to such Facility shall not be required to result in the permanent reduction of the amounts outstanding under the Credit Agreement or correspondingly permanently reduce the commitments thereunder, or (2) invest (or enter into a legally binding agreement to invest) all or a portion of such Net Cash Proceeds in properties and assets to replace the properties and assets that were the subject of the Asset Sale or in properties and assets that will be used in the businesses of the Company or its Restricted Subsidiaries, as the case may be, existing on the Closing Date or in businesses the same, similar or reasonably related thereto. If any such legally binding agreement to invest such Net Cash Proceeds is terminated, the Company may, within 90 days of such termination or within 12 months of such Asset Sale, whichever is later, invest such Net Cash Proceeds as provided in clause (1) or (2) (without regard to the parenthetical contained in such clause (2)) above. Pending the final application of any such Net Cash Proceeds, the Company may temporarily reduce revolving credit borrowings or otherwise invest such Net Cash Proceeds in a manner that is not prohibited by this Agreement. The amount of such Net Cash Proceeds not so used as set forth above in this paragraph shall constitute "Excess Proceeds."
(c) When the aggregate amount of Excess Proceeds exceeds $10,000,000, the Company will, within 30 days thereafter, make an offer to purchase (an "Excess Proceeds Offer") from all Holders of Notes on a pro rata basis, in accordance with the procedures set forth in this Agreement, the maximum principal amount (expressed as a multiple of $1,000) of Notes that may be purchased with the Excess Proceeds, at a purchase price in cash equal to 100% of the principal amount thereof, plus accrued interest, if any, to the date such offer to purchase is consummated. To the extent that the aggregate principal amount of Notes tendered pursuant to such offer to purchase is less than the Excess Proceeds, the Company may use such deficiency for general corporate purposes. If the aggregate principal amount of Notes validly tendered and not withdrawn by holders thereof exceeds the Excess Proceeds, the Notes to be purchased will be selected on a pro rata basis. Upon completion of such offer to purchase, the amount of Excess Proceeds will be reset to zero.
(iii) 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 Excess Proceeds Offer. To the extent that the provisions of any securities laws or regulations conflict with the Asset Sales provisions of this Agreement, the Company will comply with the applicable securities laws and regulations and will not be deemed to have breached its obligations under Section 5(j) of this Agreement by virtue of such conflictcash for these purposes.
Appears in 1 contract
Samples: Credit Agreement (Eastman Kodak Co)
Asset Sales. (ia) The Company Holdings shall not, and shall not permit any of the Restricted Subsidiary Subsidiaries to, engage in any cause or make an Asset Sale Sale, unless (x) Holdings or any Restricted Subsidiary, as the case may be, receives consideration received by at the Company or such Restricted Subsidiary for time of such Asset Sale is not less than at least equal to the fair market value Fair Market Value (as determined in good faith by Holdings) of the assets sold evidenced by a resolution of the board of directors of such entity set forth in an Officers' Certificate delivered to the Holders or otherwise disposed of, and (y) the consideration received by the Company or the relevant Restricted Subsidiary in respect of such Asset Sale consists of at least 75% cash of the consideration therefor received by Holdings or such Restricted Subsidiary, as the case may be, is in the form of Cash Equivalents or Additional Assets; provided that the amount of:
(for purposes of this clause (y), cash and Cash Equivalents includes (Ai) any liabilities (as reflected shown on Holdings’ or a Restricted Subsidiary’s most recent balance sheet or in the Company's consolidated balance sheetnotes thereto) of the Company Holdings or any a Restricted Subsidiary (other than contingent liabilities and liabilities that are by their terms subordinated to the Notes or any Subsidiary Guarantee) that are assumed by any the transferee of any such assets or other property in such Asset Sale, and where the Company that are otherwise cancelled or the relevant Restricted Subsidiary is released from any further liability terminated in connection therewith with respect to the transaction with such liabilities, transferee,
(Bii) any securities, notes or other similar obligations or other securities or assets received by the Company Holdings or any such Restricted Subsidiary from such transferee that are converted within 180 days of the consummation of the related Asset Sale by the Company Holdings or such Restricted Subsidiary into cash and Cash Equivalents within 180 days of the receipt thereof (to the extent of the net cash proceeds received),
(iii) with respect to any Asset Sale of Oil and Gas Properties by Holdings or any Restricted Subsidiary, the Cash Equivalents 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 (net or an Affiliate thereof),
(iv) Indebtedness of related costsany Restricted Subsidiary that is no longer a Restricted Subsidiary as a result of such Asset Sale, to the extent that Holdings and each other Restricted Subsidiary are released from any guarantee of payment of such Indebtedness in connection with the Asset Sale (without duplication of Section 4.06(a)(i) hereto),
(v) consideration consisting of Indebtedness of Holdings or any Restricted Subsidiary (other than Subordinated Indebtedness) received upon such conversion) after the Issue Date from Persons who are not Holdings or any Restricted Subsidiary in connection with the Asset Sale and that is cancelled, and
(Cvi) any Designated Noncash Non-cash Consideration received by the Company Holdings or any such Restricted Subsidiary in the such Asset Sale having an aggregate fair market value, Fair Market Value (as determined in good faith by the Board of the CompanyHoldings), taken together with all other Designated Noncash Non-cash Consideration received pursuant to this clause Section 4.06(a)(vi) that is at that time outstanding, not to exceed the greater of:
(1) $10,000,000; and
(2) 15of 4% of Adjusted Consolidated Net Tangible Assets and $300.0 million at the time of the receipt of such Designated Noncash Non-cash Consideration (with the fair market value Fair Market Value of each item of such Designated Noncash Non-cash Consideration being measured at the time received and without giving effect to subsequent changes in value), shall be deemed to be Cash Equivalents for the purposes of this Section 4.06(a).
(b) Within 365 days after Holdings’ or any Restricted Subsidiary’s receipt of the Net Proceeds of any Asset Sale, Holdings or such Restricted Subsidiary may apply the Net Proceeds from such Asset Sale, at its option:
(i) to repay (A) Indebtedness constituting First-Priority Lien Obligations 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 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 an Issuer or any Subsidiary Guarantor shall so reduce Obligations under Pari Passu Indebtedness that does not constitute First-Priority Lien Obligations or Indebtedness that is secured by a Lien on the Collateral that is senior in priority to the Notes Obligations, the Issuers will equally and ratably reduce Obligations under the Notes pursuant to Section 3.01, through open-market purchases (provided that such purchases (i) 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 and (ii) do not include Indebtedness owed to Holdings or an Affiliate of Holdings) 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, if any, the pro rata principal amount of Notes));
(ii) If the Company to make an Investment in any one or any Restricted Subsidiary engages in an Asset Sale, the Company may, at its option, within 12 months after such Asset Sale, more businesses (1) apply all or a portion of the Net Cash Proceeds to the permanent reduction of amounts outstanding under the Credit Agreement (and to correspondingly reduce the commitments, if any, with respect thereto) or to the permanent repayment of other Senior Indebtedness of the Company or a Restricted Subsidiary, provided that if such Investment is in the repayment form of any Indebtedness incurred under the Credit Agreement in connection with the acquisition of any Facility with the proceeds Capital Stock of any subsequent Sale and Leaseback Transaction relating to a Person, such Facility shall not be required to result acquisition results in the permanent reduction such Person becoming a Restricted Subsidiary of the amounts outstanding under the Credit Agreement or correspondingly permanently reduce the commitments thereunderHoldings), assets, or property or capital expenditures, in each case (2A) invest used or useful in a Similar Business or (or enter into a legally binding agreement to investB) all or a portion of such Net Cash Proceeds in properties and assets to that replace the properties and assets that were are the subject of the Asset Sale or in properties and assets that will be used in the businesses of the Company or its Restricted Subsidiaries, as the case may be, existing on the Closing Date or in businesses the same, similar or reasonably related thereto. If any such legally binding agreement to invest such Net Cash Proceeds is terminated, the Company may, within 90 days of such termination or within 12 months of such Asset Sale, whichever is later, invest 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 Cash Proceeds was contractually committed; or
(iii) to invest in Additional Assets. 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 in clause the event such binding commitment is later canceled or terminated for any reason before such Net Proceeds are so applied, then such Net Proceeds shall constitute Excess Proceeds unless Holdings or such Restricted Subsidiary enters into another binding commitment (1a “Second Commitment”) within six months of such cancellation or (2) (without regard termination of the prior binding commitment; provided, further, that 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 parenthetical contained in extent such clause (2)) aboveSecond Commitment is later cancelled or terminated for any reason before such Net Proceeds are applied or are not applied within 180 days of such Second Commitment, then such Net Proceeds shall constitute Excess Proceeds. Pending the final application of any such Net Cash Proceeds, the Company Holdings or such Restricted Subsidiary may temporarily reduce Indebtedness under a revolving credit borrowings facility, if any, or otherwise invest such Net Cash Proceeds in a any manner that is not prohibited by this AgreementIndenture. The amount Any Net Proceeds from any Asset Sale that are not applied as provided and within the time period set forth in the first sentence of this Section 4.06(b) (it being understood that any portion of such Net Cash 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 so used as set forth above in this paragraph shall such offer is accepted) will be deemed to constitute "“Excess Proceeds."
(c) ” When the aggregate amount of Excess Proceeds exceeds $10,000,00050.0 million, the Company will, within 30 days thereafter, Issuers shall make an offer to purchase all holders of Notes (and, at the option of the Issuers, to holders of any Pari Passu Indebtedness) (an "“Asset Sale Offer”) to purchase the maximum principal amount of Notes (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 Offer"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 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 not including) from all Holders the date fixed for the closing of Notes on a pro rata basissuch offer, in accordance with the procedures set forth in this AgreementSection 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 delivering electronically if held by the Depository, the maximum principal amount (expressed as a multiple of $1,000) of Notes that may be purchased with the Excess Proceeds, at a purchase price in cash equal to 100% of the principal amount thereof, plus accrued interest, if any, notice required pursuant to the date such offer terms of Sections 3.05 and 4.06(f), with a copy to purchase is consummatedthe Trustee. To the extent that the aggregate principal amount of Notes (and such Pari Passu Indebtedness) tendered pursuant to such offer to purchase an Asset Sale Offer is less than the Excess Proceeds, the Company Holdings may use such deficiency for general corporate purposes. If the aggregate principal amount of Notes validly tendered and not withdrawn by holders thereof exceeds the Excess Proceeds, the Notes to be purchased will be selected on a pro rata basis. Upon completion of such offer to purchase, the amount of any remaining Excess Proceeds will be reset to zero.
(iii) The Company will comply with the requirements of Rule 14e-1 under the Exchange Act and for 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 Excess Proceeds Offer. To the extent purpose that the provisions of any securities laws or regulations conflict with the Asset Sales provisions of this Agreement, the Company will comply with the applicable securities laws and regulations and will is not be deemed to have breached its obligations under Section 5(j) of this Agreement prohibited by virtue of such conflict.this
Appears in 1 contract
Samples: Indenture (EP Energy Corp)
Asset Sales. (ia) The Company shall will not, and shall will not permit any Restricted Company Subsidiary to, engage in any consummate an Asset Sale unless Sale, unless:
(x1) the consideration received by the Company or such Restricted Subsidiary for Company Subsidiary, as the case may be, receives consideration at the time of such Asset Sale is not less than at least equal to the fair market value of the assets sold evidenced by a resolution or otherwise disposed of; and
(2) at least 75% of the board of directors of such entity set forth in an Officers' Certificate delivered to the Holders and (y) the consideration received in the Asset Sale by the Company or such Subsidiary, as the relevant Restricted Subsidiary case may be, is in the form of Cash and Cash Equivalents (in respect of such Asset Sale consists the Company and the Guarantors, other than as provided in clause 2(b) of at least 75% cash or the definition of Cash Equivalents (for purposes of this clause (y), cash and Cash Equivalents includes Equivalents) or Designated Non-cash Consideration; provided that the amount of:
(A) any liabilities (as reflected shown on the Company’s or such Subsidiary’s most recent balance sheet or in the Company's consolidated balance sheetnotes thereto) of the Company or any Restricted Subsidiary (Company Subsidiary, other than contingent liabilities and liabilities that are by their terms subordinated to the Notes or any Guarantee) Notes, that are assumed by any the transferee of any such assets (or other property in such Asset Sale, a third party on behalf of the transferee) and where for which the Company or the relevant Restricted such Subsidiary is has been validly released from any further liability by all creditors in connection therewith with respect to such liabilities, writing;
(B) any securities, notes or other similar obligations or assets received by the Company or any such Restricted Subsidiary from such transferee that are converted within 180 days of the consummation of the related Asset Sale by the Company or such Restricted Subsidiary into cash and Cash Equivalents (to the extent of the net cash proceeds or received) within 90 days following the Cash Equivalents (net closing of related costs) received upon such conversion) and Asset Sale; and
(C) any Designated Noncash Consideration received by assets of the Company kind referred to in Section 4.10(b)(2) or (b)(4) below, shall be deemed to be cash for purposes of this Section 4.10 and for no other purpose.
(b) Within 365 days after any such Restricted Subsidiary in the Asset Sale having an aggregate fair market value, as determined by the Board of the Company, taken together with all other Designated Noncash Consideration received pursuant to this clause that is at that time outstanding, not to exceed the greater of:
(1) $10,000,000; and
(2) 15% of Consolidated Tangible Assets at the time ’s or any Company Subsidiary’s receipt of the receipt Net Proceeds of such Designated Noncash Consideration (with the fair market value of each item of such Designated Noncash Consideration being measured at the time received and without giving effect to subsequent changes in value).
(ii) If the Company or any Restricted Subsidiary engages in an Asset Sale, the Company or such Subsidiary may, at its option, reinvest, enter into a binding commitment to reinvest within 12 months after 180 days from the date of the expiration of the 365-day period (an “Acceptable Commitment”), or may apply the Net Proceeds from such Asset Sale, :
(1) apply all or a portion of the Net Cash Proceeds to the permanent reduction of amounts outstanding under the Credit Agreement (and to correspondingly reduce the commitments, if any, with respect thereto) or to the permanent repayment of other Senior repay Indebtedness of the Company or any of its Subsidiaries, other than Obligations owed to the Company or a Restricted SubsidiaryCompany Subsidiary and, provided that the repayment of any Indebtedness incurred under the Credit Agreement in connection with the acquisition of any Facility with the proceeds of any subsequent Sale and Leaseback Transaction relating to such Facility shall not be required to result in the permanent reduction case of the amounts outstanding Indebtedness under the Credit Agreement revolving credit facilities or other similar Indebtedness, to correspondingly permanently reduce commitments with respect thereto;
(2) to acquire all or substantially all the commitments thereunderassets of, or any Capital Stock of, another Similar Business, if, after giving effect to any such acquisition of Capital Stock, the Similar Business is or becomes a Company Subsidiary;
(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 Similar Business.
(c) Any Acceptable Commitment that is later canceled or terminated for any reason before such Net Proceeds are so applied shall be treated as a permitted application of the Net Proceeds if the Company or such Company Subsidiary enters into another Acceptable Commitment prior to the later of (1) six months after the date of such cancellation or termination or (2) invest (or enter into a legally binding agreement to invest) all or a portion of such Net Cash Proceeds in properties and assets to replace the properties and assets that were the subject end of the initial 365-day period.
(d) Any Net Proceeds from an Asset Sale that are not invested or applied as provided and within the time period set forth in properties and assets that paragraph (b) above will be used in the businesses of the Company or its Restricted Subsidiaries, as the case may be, existing on the Closing Date or in businesses the same, similar or reasonably related thereto. If any such legally binding agreement deemed to invest such Net Cash Proceeds is terminated, the Company may, within 90 days of such termination or within 12 months of such Asset Sale, whichever is later, invest such Net Cash Proceeds as provided in clause (1) or (2) (without regard to the parenthetical contained in such clause (2)) above. Pending the final application of any such Net Cash Proceeds, the Company may temporarily reduce revolving credit borrowings or otherwise invest such Net Cash Proceeds in a manner that is not prohibited by this Agreement. The amount of such Net Cash Proceeds not so used as set forth above in this paragraph shall constitute "“Excess Proceeds."
(c) ” When the aggregate amount of Excess Proceeds exceeds $10,000,00025.0 million, the Company will, within 30 days thereafter, shall make an offer to purchase (an "Excess Proceeds Offer") from all Holders of the Notes on a pro rata basis, in accordance and all holders of any other Indebtedness that is pari passu with the procedures Notes (containing provisions similar to those set forth in this Agreement, Indenture with respect to offers to purchase or required prepayments or redemptions of such Indebtedness 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 (expressed as a multiple of $1,000) an “Asset Sale Offer”), to purchase the maximum principal amount of Notes that may be purchased with out of the Excess Proceeds, Proceeds at a purchase an offer price in cash in an amount equal to 100% of the principal amount thereof, plus accrued interestand unpaid interest to (but not including) the date fixed for the closing of such offer, if any, in accordance with the procedures set forth in Section 3.09 of this Indenture. The Company will commence an Asset Sale Offer with respect to Excess Proceeds within 15 Business Days after the date that Excess Proceeds exceed $25.0 million by mailing the notice required pursuant to the date such offer terms of Section 3.09 of this Indenture, with a copy to purchase is consummatedthe Trustee. To the extent that the aggregate principal amount of Notes and other pari passu Indebtedness tendered pursuant to such offer to purchase an Asset Sale Offer is less than the Excess Proceeds, the Company may use such deficiency any remaining Excess Proceeds for general corporate purposes, subject to other covenants contained in this Indenture. If the aggregate principal amount of Notes validly tendered and not withdrawn other pari passu Indebtedness surrendered by such holders thereof exceeds the amount of Excess Proceeds, the Trustee shall select the Notes to be purchased will be selected on a pro rata basisbasis (with such adjustments as needed so that no Notes of an unauthorized denomination will be purchased in part) based on the accreted value or principal amount of the Notes and other pari passu Indebtedness tendered. Upon completion of any such offer to purchaseAsset Sale Offer, the amount of Excess Proceeds will shall be reset to at zero.
(iiie) Pending the final application of any Net Proceeds pursuant to this Section 4.10, the Company or the applicable Company Subsidiary may apply such Net Proceeds temporarily to reduce Indebtedness outstanding under a revolving credit facility or otherwise invest such Net Proceeds in any manner not prohibited by this Indenture.
(f) The Company will comply with the requirements of Rule 14e-1 under the Exchange Act and any other securities laws and regulations thereunder to the extent such laws and or regulations are applicable in connection with each the repurchase of the Notes pursuant to an Excess Proceeds Asset Sale Offer. To the extent that the provisions of any securities laws or regulations conflict with the Asset Sales provisions of this AgreementIndenture, the Company will comply with the applicable securities laws and regulations and will shall not be deemed to have breached its obligations under Section 5(j) of described in this Agreement Indenture by virtue of such conflictthereof.
Appears in 1 contract
Samples: Note Purchase Agreement (Moneygram International Inc)
Asset Sales. (ia) The Company shall not, and shall not permit any of the Restricted Subsidiary Subsidiaries to, engage in any consummate an Asset Sale unless unless:
(x1) the Company (or the Restricted Subsidiary, as the case may be) receives consideration received (including by way of relief from, or by any Person assuming responsibility for any liabilities, contingent or otherwise) at the time of such Asset Sale at least equal to the fair market value (as conclusively determined by a resolution of the Board of Directors set forth in an Officer's Certificate delivered to the Trustee) of the assets or Equity Interests issued or sold or otherwise disposed of; and
(2) at least 75% of the consideration therefor that the Company or such Restricted Subsidiary for such Asset Sale receives is not less than in the fair market value form of the assets sold evidenced by a resolution of the board of directors of such entity set forth in an Officers' Certificate delivered to the Holders and (y) the consideration received by the Company or the relevant Restricted Subsidiary in respect of such Asset Sale consists of at least 75% cash or Cash Equivalents (Equivalents; provided that, for purposes of this clause provision (yand for the purposes of the definition of "Non-Cash Consideration"), cash and Cash Equivalents includes each of the following shall be deemed to be cash:
(A) the amount of:
(i) any of the Company's or such Restricted Subsidiary's liabilities (as reflected in shown on the Company's consolidated or such Restricted Subsidiary's most recent balance sheet) of sheet or in the Company or any Restricted Subsidiary (notes thereto), other than contingent liabilities and liabilities that are by their terms subordinated to the Notes or any Guarantee) the Guarantees, that are assumed by any the transferee of any such assets assets,
(ii) any securities or other property in such Asset Sale, and where obligations that the Company or the relevant Restricted Subsidiary is released from any further liability in connection therewith with respect to such liabilities, (B) any securities, notes or other similar obligations received by the Company or any such Restricted Subsidiary receive from such transferee that are converted the Company or such Restricted Subsidiary convert into cash or Cash Equivalents within 180 days of the consummation of the related such Asset Sale by the Company or such Restricted Subsidiary into cash and Cash Equivalents (subject to ordinary settlement periods), to the extent of the net cash proceeds or the Cash Equivalents received in the conversion,
(net iii) any Capital Stock or assets of related costs) received upon such conversionthe kind referred to below in clauses (b)(2) and (Cb)(3) any Designated Noncash Consideration received of this Section 4.10 below, and
(iv) accounts receivable of a business, retained by the Company or any such Restricted Subsidiary in the Asset Sale having an aggregate fair market value, as determined by the Board one of the Company, taken together with all other Designated Noncash Consideration received pursuant to this clause Restricted Subsidiaries following the sale of such business; provided that is at that time outstanding, (x) such accounts receivable are not to exceed past due more than 60 days and (y) do not have a payment date greater than 90 days from the greater of:
(1) $10,000,000date of the invoice creating such accounts receivable; and
(2B) 15% of Consolidated Tangible Assets at the time of the receipt of such Designated Noncash Consideration (with the fair market value of each item any Non-Cash Consideration that the Company or a Restricted Subsidiary receives in any Non-Qualified Asset Sale shall be deemed to be cash to the extent that the aggregate fair market value (as reasonably determined by the Company and as set forth in an Officer's Certificate) of such Designated Noncash all Non-Cash Consideration being (measured at the time received and without giving effect to any subsequent changes in value).
(ii) If received by the Company or any of the Restricted Subsidiaries since the Issue Date in all Non-Qualified Asset Sales does not exceed 10% of the Company's Total Assets as of the date of such consummation. Notwithstanding the foregoing, to the extent the Company or any of the Restricted Subsidiaries receives Non-Cash Consideration as proceeds of an Asset Sale, such Non-Cash Consideration shall be deemed to be Net Proceeds for purposes of (and shall be applied in accordance with) the following provisions when the Company or such Restricted Subsidiary engages in receives cash or Cash Equivalents from a sale, repayment, exchange, redemption or retirement of or extraordinary dividend or return of capital on such Non-Cash Consideration.
(b) Within 365 days after the receipt of any Net Proceeds from an Asset Sale, the Company may, at its option, within 12 months after or such Asset Sale, Restricted Subsidiary may apply such Net Proceeds:
(1) apply all to repay Senior Debt;
(2) to purchase one or more Nursing Facilities or Related Businesses and/or a portion controlling interest in the Capital Stock of the Net Cash Proceeds to the permanent reduction of amounts outstanding under the Credit Agreement a Person owning one or more Nursing Facilities and/or one or more Related Businesses (and to correspondingly reduce the commitments, if any, with respect thereto) or to the permanent repayment of other Senior Indebtedness of enter into a definitive agreement committing the Company or a Restricted Subsidiary, provided that the repayment of any Indebtedness incurred under the Credit Agreement in connection with the acquisition of any Facility with the proceeds of any subsequent Sale and Leaseback Transaction relating Subsidiary to make such Facility shall not be required to result in the permanent reduction purchase within six months of the amounts outstanding under date of such agreement; provided that, if such agreement is terminated, the Credit Agreement Company or correspondingly permanently reduce such Restricted Subsidiaries may invest such Net Proceeds prior to the commitments thereunderend of such 365-day period, or if later prior to the end of the six-month period referred to in this clause (2)); or
(3) invest to make a capital expenditure or to acquire other capital assets, in each case, that are used or useful in any business in which the Company is permitted to be engaged pursuant to Section 4.13 hereof (or enter into a legally binding definitive agreement to invest) all or a portion of such Net Cash Proceeds in properties and assets to replace the properties and assets that were the subject of the Asset Sale or in properties and assets that will be used in the businesses of committing the Company or its a Restricted SubsidiariesSubsidiary to make such acquisition or expenditure within six months after the date of such agreement; provided that, as the case may be, existing on the Closing Date or in businesses the same, similar or reasonably related thereto. If any if such legally binding agreement to invest such Net Cash Proceeds is terminated, the Company may, within 90 days of or such termination or within 12 months of such Asset Sale, whichever is later, Restricted Subsidiary may invest such Net Cash Proceeds as provided prior to the end of such 365-day period, or if later prior to the end of such six-month period referred to in this clause (1) or (2) (without regard to the parenthetical contained in such clause (23)) above). Pending the final application of any such Net Cash Proceeds, the Company or such Restricted Subsidiary may temporarily reduce revolving credit borrowings Indebtedness or otherwise invest such Net Cash Proceeds in a any manner that is not prohibited by this AgreementIndenture. The amount Any Net Proceeds from Asset Sales that are not applied or invested as provided in the first sentence of such Net Cash Proceeds not so used as set forth above in this paragraph shall be deemed to constitute "Excess Proceeds."
(c) " When the aggregate amount of Excess Proceeds exceeds $10,000,00025,000,000, the Company will, within 30 days thereafter, shall be required to make an offer to purchase (an "Excess Proceeds Offer") from all Holders of Notes and holders of any of the Company's other Indebtedness ranking on a pro rata basis, in accordance parity with the procedures set forth in this Agreement, Notes from time to time outstanding with similar provisions that require the Company to make an Asset Sale Offer to purchase the maximum principal amount (expressed as a multiple of $1,000) of the Notes and such other Indebtedness that may be purchased with out of the Excess Proceeds, at a purchase an offer price in cash equal to 100% of the principal amount thereof, thereof plus accrued interestand unpaid interest and Liquidated Damages, if any, thereon to the date such offer to purchase is consummatedof purchase, in accordance with the procedures set forth in Section 3.09 hereof. To the extent that the aggregate principal amount of Notes and such other Indebtedness tendered pursuant to such offer to purchase an Asset Sale Offer is less than the Excess Proceeds, the Company may use such deficiency any remaining Excess Proceeds for general corporate purposespurposes not prohibited at the time under this Indenture. If the aggregate principal amount of Notes validly tendered and not withdrawn such other Indebtedness surrendered by holders thereof exceeds the amount of Excess Proceeds, the Notes to and such other Indebtedness shall be purchased will be selected on a pro rata basis. Upon completion of such offer to purchasean Asset Sale Offer, the amount of Excess Proceeds will shall be reset to zero.
(iii) 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 Excess Proceeds Offer. To the extent that the provisions of any securities laws or regulations conflict with the Asset Sales provisions of this Agreement, the Company will comply with the applicable securities laws and regulations and will not be deemed to have breached its obligations under Section 5(j) of this Agreement by virtue of such conflict.
Appears in 1 contract
Samples: Indenture (Beverly Enterprises Inc)
Asset Sales. (ia) The Company shall not, and shall not permit any of the Restricted Subsidiary Subsidiaries to, engage in any cause or make an Asset Sale Sale, unless (x) the Company or 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 in good faith by the Company) of the assets sold or otherwise disposed of, and (y) at least 75% of the consideration therefor received by the Company or such Restricted Subsidiary for such Asset Sale Subsidiary, as the case may be, is not less than in the fair market value form of Cash Equivalents; provided that the assets sold evidenced by a resolution of the board of directors of such entity set forth in an Officers' Certificate delivered to the Holders and amount of:
(y) the consideration received by the Company or the relevant Restricted Subsidiary in respect of such Asset Sale consists of at least 75% cash or Cash Equivalents (for purposes of this clause (y), cash and Cash Equivalents includes (Ai) any liabilities (as reflected shown on the Company’s or a Restricted Subsidiary’s most recent balance sheet or in the Company's consolidated balance sheetnotes thereto) of the Company or any a Restricted Subsidiary (other than contingent liabilities and liabilities that are by their terms subordinated to the Notes or any Subsidiary Guarantee) that are assumed by any the transferee of any such assets or other property in such Asset Sale, and where the Company that are otherwise cancelled or the relevant Restricted Subsidiary is released from any further liability terminated in connection therewith with respect to the transaction with such liabilities, transferee,
(Bii) any securities, notes or other similar obligations or other securities or assets received by the Company or any such Restricted Subsidiary from such transferee that are converted within 180 days of the consummation of the related Asset Sale by the Company or such Restricted Subsidiary into cash and Cash Equivalents within 180 days of the receipt thereof (to the extent of the net cash proceeds or received),
(iii) Indebtedness of any Restricted Subsidiary that is no longer a Restricted Subsidiary as a result of such Asset Sale, to the Cash Equivalents extent that the Company and each other Restricted Subsidiary are released from any guarantee of payment of such Indebtedness in connection with the Asset Sale,
(net iv) consideration consisting of related costsIndebtedness of the Company (other than Subordinated Indebtedness) received upon such conversion) and after the Issue Date from Persons who are not the Company or any Restricted Subsidiary, and
(Cv) any Designated Noncash Non-cash Consideration received by the Company or any such Restricted Subsidiary in the such Asset Sale having an aggregate fair market value, Fair Market Value (as determined in good faith by the Board of the Company), taken together with all other Designated Noncash Non-cash Consideration received pursuant to this clause Section 4.06(a)(v) that is at that time outstanding, not to exceed the greater of:
(1) of $10,000,000; and
(2) 15% 150.0 million and 0.3 multiplied by the Pro Forma EBITDA of Consolidated Tangible Assets at the time of Company for the most recently ended four full fiscal quarters for which internal financial statements are available immediately preceding the receipt of such Designated Noncash Non-cash Consideration (with the fair market value Fair Market Value of each item of such Designated Noncash Non-cash Consideration being measured at the time received and without giving effect to subsequent changes in value), shall in each case be deemed to be Cash Equivalents for the purposes of this Section 4.06(a).
(iib) If Within 365 days after the Company Company’s or any Restricted Subsidiary engages in an Subsidiary’s receipt of the Net Proceeds of any Asset Sale, the Company mayor such Restricted Subsidiary may apply the Net Proceeds from such Asset Sale, at its option:
(i) to repay (A) Indebtedness that is secured by a Lien permitted under this Indenture (and, within 12 months after such Asset Saleif the Indebtedness repaid is revolving credit Indebtedness, (1) apply all or a portion of the Net Cash Proceeds to the permanent reduction of amounts outstanding under the Credit Agreement (and to correspondingly reduce the commitments, if any, commitments with respect thereto), (B) or to the permanent repayment of other Senior Indebtedness of the Company or a Restricted Subsidiary, provided that the repayment of any Indebtedness incurred under the Credit Agreement in connection with the acquisition of any Facility with the proceeds of any subsequent Sale and Leaseback Transaction relating to such Facility shall not be required to result in the permanent reduction of the amounts outstanding under the Credit Agreement or correspondingly permanently reduce the commitments thereunder, or (2) invest (or enter into a legally binding agreement to invest) all or a portion of such Net Cash Proceeds in properties and assets to replace the properties and assets that were the subject of the Asset Sale or in properties and assets that will be used in the businesses of the Company or its Restricted Subsidiaries, as the case may be, existing on the Closing Date or in businesses the same, similar or reasonably related thereto. If any such legally binding agreement to invest such Net Cash Proceeds is terminated, the Company may, within 90 days of such termination or within 12 months of such Asset Sale, whichever is later, invest such Net Cash Proceeds as provided in clause (1) or (2) (without regard to the parenthetical contained in such clause (2)) above. Pending the final application of any such Net Cash Proceeds, the Company may temporarily reduce revolving credit borrowings or otherwise invest such Net Cash Proceeds in a manner Subsidiary that is not prohibited by a Subsidiary Guarantor, (C) Obligations under the Notes or (D) other Pari Passu Indebtedness (provided that if an Issuer or any Subsidiary Guarantor shall so reduce Pari Passu Indebtedness under this Agreement. The amount of such Net Cash Proceeds not so used as set forth above in this paragraph shall constitute "Excess Proceeds."
clause (c) When the aggregate amount of Excess Proceeds exceeds $10,000,000D), the Company willIssuers will equally and ratably reduce Notes Obligations pursuant to Section 3.01, within 30 days thereafterthrough open-market purchases (provided that such purchases are at or above 100% of the principal amount thereof or, make in the event that the Notes were issued with significant original issue discount, 100% of the accreted value thereof) or by making an offer to purchase (an "Excess Proceeds Offer") from all Holders of Notes on a pro rata basis, in accordance with the procedures set forth in this Agreement, the maximum below for an Asset Sale Offer) to all holders to purchase a pro rata principal amount (expressed as a multiple of $1,000) of Notes that may be purchased with the Excess Proceeds, at a purchase price in cash 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, if any, in each case other than Indebtedness owed to the date Company or an Affiliate of the Company; and
(ii) to make an investment in any one or more businesses (provided that if such offer to purchase investment is consummated. To in the extent that form of the aggregate principal amount acquisition of Notes tendered pursuant to Capital Stock of a Person, such offer to purchase is less than the Excess Proceeds, acquisition results in such Person becoming a Restricted Subsidiary of the Company may use such deficiency for general corporate purposes. If or in an increase in the aggregate principal amount of Notes validly tendered and not withdrawn percentage ownership by holders thereof exceeds the Excess Proceeds, the Notes to be purchased will be selected on a pro rata basis. Upon completion of such offer to purchase, the amount of Excess Proceeds will be reset to zero.
(iii) 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 Excess Proceeds Offer. To the extent that the provisions of any securities laws or regulations conflict with the Asset Sales provisions of this Agreement, the Company will comply with the applicable securities laws and regulations and will not be deemed to have breached its obligations under Section 5(j(or a Restricted Subsidiary) of this Agreement by virtue of in such conflict.Restricted Subsidiary), assets, or property or capital expenditures, in each case (A) used or useful in a Similar Business or
Appears in 1 contract
Samples: Indenture
Asset Sales. (a) The Company will not, and will not permit any of its Restricted Subsidiaries to cause, make or suffer to exist any Asset Sale, unless:
(i) The Company shall not, no Default exists or is continuing immediately prior to and shall not permit any Restricted Subsidiary to, engage in any after giving effect to such Asset Sale unless Sale;
(xii) the Company (or the Restricted Subsidiary, as the case may be) receives consideration received by at the Company or such Restricted Subsidiary for time of such Asset Sale is not less than at least equal to the fair market value (evidenced for purposes of the assets sold evidenced this Section 4.10 by a resolution of the board Board of directors of such entity Directors set forth in an Officers' Certificate delivered to the Holders and Trustee) of the assets sold or otherwise disposed of; and
(yiii) at least 80% of the consideration therefor received by the Company or the relevant such Restricted Subsidiary is in respect the form of (w) Cash Equivalents, (x) Replacement Assets, (y) publicly traded Equity Interests of a Person who is, directly or indirectly, engaged primarily in one or more Cable Businesses; provided, however, that the Company or such Restricted Subsidiary shall Monetize such Equity Interests by sale to one or more Persons (other than to the Company or a Subsidiary thereof) at a price not less than the fair market value thereof within 180 days of the consummation of such Asset Sale consists Sale, or (z) any combination of at least 75% cash or Cash Equivalents the foregoing clauses (for purposes of this clause w) through (y); provided, cash and Cash Equivalents includes however, that the amount of (Ax) any liabilities (as reflected in shown on the Company's consolidated or such Restricted Subsidiary's most recent balance sheetsheet or in the notes thereto) of the -35- 158 Company or any Restricted Subsidiary (other than contingent liabilities and liabilities that are by their terms subordinated to the Notes or any GuaranteeNotes) that are assumed by any the transferee of any such assets or other property in such Asset Sale, and where the Company or the relevant Restricted Subsidiary is released from any further liability in connection therewith with respect to such liabilities, (By) any securities, notes or other similar obligations received by the Company or any such Restricted Subsidiary from such transferee that are within five Business Days converted within 180 days of the consummation of the related Asset Sale by the Company or such Restricted Subsidiary into cash and cash, shall be deemed to be Cash Equivalents (to the extent of the net cash proceeds or the Cash Equivalents (net of related costs) received upon in such conversion) and (C) any Designated Noncash Consideration received by the Company or any such Restricted Subsidiary in the Asset Sale having an aggregate fair market value, as determined by the Board for purposes of the Company, taken together with all other Designated Noncash Consideration received pursuant to this clause that is at that time outstanding, not to exceed the greater of:
(1) $10,000,000; and
(2) 15% of Consolidated Tangible Assets at the time of the receipt of such Designated Noncash Consideration (with the fair market value of each item of such Designated Noncash Consideration being measured at the time received and without giving effect to subsequent changes in valueiii).
(iib) If the Company or Within 360 days after any Restricted Subsidiary engages in an Asset Sale, the Company may, at its option, within 12 months after such Asset Sale, (1) apply all or a portion of the Net Cash Proceeds to the permanent reduction of amounts outstanding under the Credit Agreement (and to correspondingly reduce the commitments, if any, with respect thereto) or to the permanent repayment of other Senior Indebtedness of the Company or a Restricted Subsidiary, provided that the repayment of any Indebtedness incurred under the Credit Agreement in connection with the acquisition of any Facility with the proceeds of any subsequent Sale and Leaseback Transaction relating to such Facility shall not be required to result in the permanent reduction of the amounts outstanding under the Credit Agreement or correspondingly permanently reduce the commitments thereunder, or (2) invest (or enter into a legally binding agreement to invest) all or a portion of such Net Cash Proceeds in properties and assets to replace the properties and assets that were the subject of the Asset Sale or in properties and assets that will be used in the businesses of the Company or its Restricted Subsidiaries, as the case may be, existing on ) shall cause the Closing Date or in businesses the same, similar or reasonably related thereto. If any such legally binding agreement to invest such Net Cash Proceeds is terminated, the Company may, within 90 days of such termination or within 12 months of from such Asset Sale, whichever is later, invest such Net Cash Proceeds as provided :
(i) to be used to permanently reduce Indebtedness of a Restricted Subsidiary; or
(ii) to be invested or reinvested in clause (1) or (2) (without regard to the parenthetical contained in such clause (2)) aboveReplacement Assets. Pending the final application of any such Net Cash Proceeds, the Company may temporarily reduce revolving credit borrowings or otherwise invest such Net Cash Proceeds in a any manner that is not prohibited by this AgreementIndenture or the indentures for the Other Qualified Notes. The amount of such Any Net Cash Proceeds from any Asset Sale that are not so used or reinvested as set forth above provided in this paragraph shall the preceding sentence constitute "Excess Proceeds."
(c) " When the aggregate amount of Excess Proceeds exceeds $10,000,00015 million, the Company will, within 30 days thereafter, shall make an offer to purchase (an "Excess Proceeds Asset Sale Offer") from to all Holders holders of Notes and Other Qualified Notes to purchase the maximum principal amount of Notes and Other Qualified Notes (determined on a pro rata basisbasis according to the accreted value or principal amount, as the case may be, of the Notes and the Other Qualified Notes and in accordance with Section 3.09(g)(i)) that may be purchased out of the Excess Proceeds (x) with respect to the Other Qualified Notes, based on the terms set forth in the indenture related to each issue of the Other Qualified Notes and (y) with respect to the Notes, 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, and Liquidated Damages, if any, to the date fixed for the closing of such offer, in accordance with the procedures set forth in this Agreement, the maximum principal amount (expressed as a multiple of $1,000) of Notes that may be purchased with the Excess Proceeds, at a purchase price in cash equal to 100% of the principal amount thereof, plus accrued interest, if any, to the date such offer to purchase is consummatedSection 3.09 hereof. To the extent that the aggregate principal amount or accreted value, as the case may be, of Notes and Other Qualified Notes tendered pursuant to such offer to purchase an Asset Sale Offer is less than the Excess Proceeds, the Company may use such deficiency for general corporate purposes. If the aggregate principal amount or accreted value, as the case may be, of Notes validly tendered and not withdrawn Other Qualified Notes surrendered by holders thereof exceeds the amount of Excess Proceeds, then such remaining Excess Proceeds shall be allocated pro rata according to accreted value or principal amount, as the case may be, to the Notes and each issue of the Other Qualified Notes and in accordance with Section 3.09(g)(ii), and the Trustee shall select the Notes to be purchased will be selected from the amount allocated to the Notes on a pro rata basisthe basis set forth in Section 3.09(e) hereof. Upon completion of such offer offers to purchasepurchase each of the Notes and the Other Qualified Notes, the amount of Excess Proceeds will be reset to at zero.
(iiic) 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 Excess Proceeds Offer. To the extent that Notwithstanding the provisions of any securities laws or regulations conflict with the Asset Sales provisions of this Agreement, Sections 4.10(a) and (b): the Company will comply 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 applied within five Business Days 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 Replacement Assets 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 applicable securities laws Company's Subsidiaries to a Cable Controlled Subsidiary, in each of cases (x) and regulations (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 will not be deemed (B) either (I) the assets so contributed consist solely of a license to have breached 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 obligations under Section 5(jRestricted 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 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; or
(iii) issue, sell, lease, transfer, convey or otherwise dispose of Equity Interests (other than Disqualified Stock) of this Agreement by virtue of such conflictthe Company (or any Capital Stock Sale Proceeds therefrom) to any Person (including Non-Restricted Subsidiaries).
Appears in 1 contract
Samples: Bridge Loan Agreement (NTL Inc /De/)
Asset Sales. (ia) The Company shall will not, and shall will not permit any of its Restricted Subsidiary Subsidiaries to, engage consummate an Asset Sale in any single transaction or series of related transactions unless:
(1) the Company (or the Restricted Subsidiary, as the case may be) receives consideration at the time of the Asset Sale unless (x) the consideration received by the Company or such Restricted Subsidiary for such Asset Sale is not less than at least equal to the fair market value of the assets or Equity Interests issued or sold or otherwise disposed of;
(2) the fair market value is determined by the Company's Board of Directors and evidenced by a resolution of the board Board of directors of such entity Directors set forth in an Officers' Certificate delivered to the Holders and Trustee; and
(y3) at least 75% of the consideration received in the Asset Sale by the Company or the relevant such Restricted Subsidiary is in respect the form of such Asset Sale consists (i) cash, (ii) Cash Equivalents, (iii) the majority of at least 75% cash the Voting Stock of a Person engaged in a Permitted Business that will become on the date of acquisition thereof a Restricted Subsidiary, or Cash Equivalents (for iv) long-term property or assets that are used or useful in a Permitted Business. For purposes of this clause (y)provision, cash and Cash Equivalents includes each of the following will be deemed to be cash:
(A) any liabilities (liabilities, as reflected in shown on the Company's consolidated or such Restricted Subsidiary's most recent balance sheet) , of the Company or any Restricted Subsidiary (other than contingent liabilities and liabilities that are by their terms subordinated to the Notes or any Subsidiary Guarantee) that are assumed by any the transferee of any such assets pursuant to a customary novation agreement or other property in such Asset Sale, and where agreement that releases the Company or the relevant such Restricted Subsidiary is released from any further liability in connection therewith with respect to such liabilities, liability; and
(B) any securities, notes or other similar obligations received by the Company or any such Restricted Subsidiary from such transferee that are contemporaneously, subject to ordinary settlement periods, converted within 180 days of the consummation of the related Asset Sale by the Company or such Restricted Subsidiary into cash and or Cash Equivalents (Equivalents, to the extent of the net cash proceeds or the Cash Equivalents received in that conversion.
(net b) In the case of related costs) consideration received upon such conversion) and (C) any Designated Noncash Consideration received by the Company or any such Restricted Subsidiary in the an Asset Sale having an aggregate fair market valuein a form specified in Section 4.10(a)(3)(iii) or 4.10(a)(3)(iv) hereof, as determined by the Board of Directors' determination must be based upon an opinion or appraisal issued by an accounting, appraisal or investment banking firm of national standing in Canada or the Company, taken together with all other Designated Noncash Consideration received pursuant to this clause that is at that time outstanding, not to exceed the greater of:
(1) $10,000,000; and
(2) 15% of Consolidated Tangible Assets at the time of the receipt of such Designated Noncash Consideration (with United States if the fair market value of each item of such Designated Noncash Consideration being measured at the time received and without giving effect to subsequent changes in value)exceeds US$10.0 million.
(iic) If Within 360 days after the Company or receipt of any Restricted Subsidiary engages in Net Proceeds from an Asset Sale, the Company may, or such Restricted Subsidiary may apply those Net Proceeds at its option, within 12 months after such Asset Sale, :
(1) apply all to repay term or revolving credit Indebtedness under or cash collateralize letters of credit under a portion Credit Facility (other than any such Indebtedness that is subordinate in right of the Net Cash Proceeds payment to the permanent reduction of amounts outstanding under Notes or any Subsidiary Guarantee) and, if the Credit Agreement (and Indebtedness repaid is revolving credit Indebtedness, to correspondingly reduce the commitments, if any, commitments with respect thereto) or to the permanent repayment of other Senior Indebtedness of the Company or a Restricted Subsidiary, provided that the repayment of any Indebtedness incurred under the Credit Agreement in connection with the acquisition of any Facility with the proceeds of any subsequent Sale and Leaseback Transaction relating to such Facility shall not be required to result in the permanent reduction of the amounts outstanding under the Credit Agreement or correspondingly permanently reduce the commitments thereunder, or ;
(2) invest (or enter into a legally binding agreement to invest) all or a portion of such Net Cash Proceeds in properties and assets to replace the properties and assets that were the subject of if the Asset Sale is by a Restricted Subsidiary that is not a Guarantor, to repay, redeem or repurchase any Indebtedness of that Restricted Subsidiary;
(3) to acquire all or substantially all of the assets of, or a majority of the Voting Stock of, a Person engaged in properties and a Permitted Business;
(4) to make a capital expenditure; or
(5) to acquire other long-term assets that will be are used or useful in the businesses of the Company or its Restricted Subsidiaries, as the case may be, existing on the Closing Date or in businesses the same, similar or reasonably related thereto. If any such legally binding agreement to invest such Net Cash Proceeds is terminated, the Company may, within 90 days of such termination or within 12 months of such Asset Sale, whichever is later, invest such Net Cash Proceeds as provided in clause (1) or (2) (without regard to the parenthetical contained in such clause (2)) abovea Permitted Business. Pending the final application of any such Net Cash Proceeds, the Company or such Restricted Subsidiary may temporarily reduce revolving credit borrowings or otherwise invest such the Net Cash Proceeds in a any manner that is not prohibited by this Agreement. The amount Indenture.
(d) Any Net Proceeds from Asset Sales that are not applied or invested as provided in Section 4.10(c) hereof and any Net Proceeds used to cash collateralize letters of such Net Cash Proceeds credit which no longer cash collateralize a letter of credit and which have not so used otherwise been applied or invested as set forth above provided in this paragraph shall Section 4.10(c) hereof will constitute "Excess Proceeds."
(c) When " The Company may use Excess Proceeds to make at any time, and when the aggregate amount of Excess Proceeds exceeds $10,000,000, US$10.0 million the Company willwill make, within 30 days thereafter, make an offer to purchase (an "Excess Proceeds Asset Sale Offer") from to all Holders of Notes on a pro rata basis, in accordance and all holders of other Indebtedness that is pari passu with the procedures Notes containing provisions similar to those set forth in this AgreementIndenture with respect to offers to purchase or redeem such indebtedness with the proceeds of sales of assets, to purchase the maximum principal amount (expressed as a multiple of $1,000) of Notes and such other pari passu Indebtedness that may be purchased with out of the Excess Proceeds, at a purchase . The offer price in cash any Asset Sale Offer will be equal to 100% of the principal amount thereof, plus accrued interestand unpaid interest and Special Interest, if any, to the date fixed for the closing of such offer to purchase is consummatedoffer, and will be payable in cash (the "Asset Sale Payment"). To the extent that the aggregate principal amount If any Excess Proceeds remain after consummation of Notes tendered pursuant to such offer to purchase is less than the Excess Proceedsan Asset Sale Offer, the Company or such Restricted Subsidiary may use such deficiency those Excess Proceeds for general corporate purposesany purpose not otherwise prohibited by this Indenture. If the aggregate principal amount of Notes validly and other pari passu Indebtedness tendered and not withdrawn by holders thereof 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 will be selected on a pro rata basisbasis based on the principal amount of Notes and other pari passu Indebtedness tendered. Upon completion of such offer to purchaseeach Asset Sale Offer, the amount of Excess Proceeds will be reset to at zero.
(iiie) The Company will comply with the requirements of Rule 14e-1 under the Exchange Act and any other securities laws and regulations thereunder to the extent such those laws and regulations are applicable in connection with each repurchase of Notes pursuant to an Excess Proceeds Asset Sale Offer. To the extent that the provisions of any securities laws or regulations conflict with the Asset Sales provisions of this AgreementSections 3.09 or 4.10 hereof, the Company will comply with the applicable securities laws and regulations and will not be deemed to have breached its obligations under Section 5(j) of this Agreement hereunder by virtue of such conflict.
Appears in 1 contract
Samples: Indenture (Ainsworth Lumber Co LTD)
Asset Sales. (i) The Company shall not, and shall not permit any of its Restricted Subsidiary Subsidiaries to, engage in any consummate an Asset Sale unless unless:
(x1) the Company (or the Restricted Subsidiary, as the case may be) receives consideration at least equal to the fair market value of the assets or Equity Interests issued or sold or otherwise disposed of (such fair market value to be determined on the date of contractually agreeing to such Asset Sale);
(2) the fair market value is determined by the Company’s Board of Directors and evidenced by a resolution of the Board of Directors of the Company set forth in an Officers’ Certificate delivered to each Holder; and
(3) at least 75% of the consideration received in the Asset Sale by the Company or such Restricted Subsidiary for such Asset Sale is not less than in the fair market value form of the assets sold evidenced by a resolution of the board of directors of such entity set forth in an Officers' Certificate delivered to the Holders and (y) the consideration received by the Company or the relevant Restricted Subsidiary in respect of such Asset Sale consists of at least 75% cash or Cash Equivalents (for Equivalents. For purposes of this clause provision, each of the following shall be deemed to be cash:
(y)a) the amount of any liabilities, cash and Cash Equivalents includes (A) any liabilities (as reflected shown on the Company’s most recent consolidated balance sheet or in the Company's consolidated balance sheet) notes thereto, of the Company or any such Restricted Subsidiary (other than contingent liabilities and liabilities that are by their terms subordinated to the Notes or any GuaranteeNotes) that are assumed by any the transferee of any such assets or other property in such Asset Saleassets; provided, and where that the Company or the relevant such Restricted Subsidiary is contractually released from any further liability in connection therewith with respect to such liabilities, ;
(Bb) any securities, notes or other similar obligations received by the Company or any such Restricted Subsidiary from such transferee that are converted promptly, but in any event within 180 120 days after the date of the consummation of the related Asset Sale Sale, converted by the Company or such Restricted Subsidiary into cash and or Cash Equivalents (Equivalents, to the extent of the net cash proceeds or the Cash Equivalents received in that conversion;
(net c) property received as consideration for such Asset Sale that would otherwise constitute a permitted application of related costsNet Proceeds (or other cash in such amount) received upon such conversionunder clauses (3), (4) and (C6) under the next succeeding paragraph below; and
(d) any Designated Noncash Non-cash Consideration received by the Company or any such Restricted Subsidiary in the Asset Sale having an aggregate fair market value, value (as determined in good faith by the Board of the Company), taken together with all other Designated Noncash Non-cash Consideration received pursuant to this clause that is at that time outstanding(d), not to exceed exceeding the greater of:
(1) of $10,000,000; and
(2) 1520.0 million and 2.5% of Consolidated Tangible the Total Assets of the Company at the time of the receipt of such Designated Noncash Consideration (Non-cash Consideration, with the fair market value of each item of such Designated Noncash Non-cash Consideration being measured at the time received and without giving effect to subsequent changes in value).
(ii) If . Within 425 days after the Company or receipt of any Restricted Subsidiary engages in Net Proceeds from an Asset Sale, the Company may, or any of its Restricted Subsidiaries may apply those Net Proceeds at its option, within 12 months after such Asset Sale, the option of the Company to:
(1) apply all or a permanently repay Indebtedness and other Obligations under the revolving loan portion of the Net Cash Proceeds to the permanent reduction of amounts outstanding under the any Credit Agreement (and to correspondingly reduce the commitments, if any, with respect thereto) or to the permanent repayment of other Senior Indebtedness of the Company or a Restricted Subsidiary, provided that the repayment of any Indebtedness incurred under the Credit Agreement in connection with the acquisition of any Facility with the proceeds of any subsequent Sale and Leaseback Transaction relating to such Facility shall not be required to result in the permanent reduction of the amounts outstanding under the Credit Agreement or correspondingly permanently reduce the commitments thereunder, or Facility;
(2) invest repay (a) the term loan portion of any Credit Facility, (b) any Indebtedness secured by a Lien, (c) repay other Indebtedness ranking pari passu with the Notes that has a Stated Maturity prior to the Stated Maturity of the Notes, (d) any Indebtedness of a Restricted Subsidiary or enter into a legally binding agreement to invest(e) any Indebtedness under the Indenture;
(3) acquire all or a portion of such Net Cash Proceeds in properties and assets to replace the properties and assets that were the subject substantially all of the Asset Sale assets of, or in properties and assets that will be used in the businesses a majority of the Company Voting Stock of, another Permitted Business;
(4) acquire Capital Stock constituting a minority interest in any Person that at such time is a Restricted Subsidiary of the Company;
(5) make a capital expenditure relating to an asset used or its Restricted Subsidiaries, as the case may be, existing on the Closing Date useful in a Permitted Business; or
(6) acquire non-current assets (including lease fleet and transportation equipment) that are used or useful in businesses the same, similar or reasonably related thereto. If any such legally binding agreement to invest such Net Cash Proceeds is terminated, the Company may, within 90 days of such termination or within 12 months of such Asset Sale, whichever is later, invest such Net Cash Proceeds as provided in clause (1) or (2) (without regard to the parenthetical contained in such clause (2)) abovea Permitted Business. Pending the final application of any such Net Cash Proceeds, the Company or any of its Restricted Subsidiaries may temporarily reduce revolving credit other borrowings or otherwise invest such the Net Cash Proceeds in a any manner that is not prohibited by this Agreement. The amount Any Net Proceeds from an Asset Sale not applied in accordance with the preceding paragraph within 425 days from the date of the receipt of such Net Cash Proceeds not so used as set forth above in this paragraph (or at the Company’s option, an earlier date) shall constitute "“Excess Proceeds” unless binding contractual commitments to apply such Net Proceeds in accordance with the preceding paragraph have been entered into prior to the end of such 425-day period and shall not have been completed or abandoned; provided, however, that the amount of any Net Proceeds that is not actually reinvested within 605 days from the date of the receipt of such Net Proceeds shall also constitute “Excess Proceeds."
(c) ” When the aggregate amount of Excess Proceeds exceeds $10,000,00012.5 million, the Company will, within 30 days thereafter, shall make an offer to purchase (an "Excess Proceeds “Asset Sale Offer"”) from to all Holders and all holders of Notes on a pro rata basis, in accordance other Indebtedness that is pari passu with the procedures Notes containing provisions similar to those set forth in this Agreement, Agreement with respect to offers to purchase or redeem with the proceeds of sales of assets to purchase the maximum principal amount (expressed as a multiple of $1,000) of Notes and such other pari passu Indebtedness that may be purchased with out of the Excess Proceeds, at a purchase . The offer price in cash any Asset Sale Offer shall be equal to 100% of the principal amount (or accreted value, as applicable) of the Notes and such other pari passu Indebtedness in each case equal to $2,000 or an integral multiple of $1,000 in excess thereof, plus accrued interest, if any, and unpaid interest to the date such offer to purchase is consummatedof purchase, and shall be payable in cash. To If any Excess Proceeds remain after the extent that the aggregate principal amount consummation of Notes tendered pursuant to such offer to purchase is less than the Excess Proceedsan Asset Sale Offer, the Company or any of its Restricted Subsidiaries may use such deficiency those Excess Proceeds for general corporate purposesany purpose not otherwise prohibited by this Agreement. If the aggregate principal amount of Notes validly and other pari passu Indebtedness tendered and not withdrawn by holders thereof in such Asset Sale Offer exceeds the amount of Excess Proceeds, the Excess Proceeds shall be allocated by the Company to the Notes to be purchased will be selected and such other pari passu Indebtedness on a pro rata basisbasis (based upon the respective principal amounts (or accreted value, if applicable) of the Notes and such other pari passu Indebtedness tendered into such Asset Sale Offer). Upon completion of such offer to purchaseeach Asset Sale Offer, the amount of Excess Proceeds will shall be reset at zero. If the Asset Sale purchase date is on or after an interest payment record date and on or before the related interest payment date, any accrued and unpaid interest shall be paid to zero.
(iii) the Holder in whose name a Note is registered at the close of business on such record date, and no interest shall be payable to Holders who tender Notes pursuant to the Asset Sale Offer. The Company will shall comply with the requirements of Rule 14e-1 14e-l under the Exchange Act and any other securities laws and regulations thereunder to the extent such those laws and regulations are applicable in connection with each repurchase of Notes pursuant to an Excess Proceeds Asset Sale Offer. To the extent that the provisions of any securities laws or regulations conflict with the Asset Sales Sale provisions of this Agreement, the Company will shall comply with the applicable securities laws and regulations and will shall not be deemed to have breached its their obligations under Section 5(j) the Asset Sale provisions of this Agreement by virtue of such conflict.
Appears in 1 contract
Asset Sales. (i) 1.1 The Company shall will not, and shall will not permit any of its Restricted Subsidiary Subsidiaries to, engage in any consummate an Asset Sale unless unless:
(xa) the Company (or the Restricted Subsidiary, as the case may be) receives consideration at the time of the Asset Sale at least equal to the Fair Market Value (measured as of the date of the definitive agreement with respect to such Asset Sale) of the assets or Equity Interests issued or sold or otherwise disposed of; and
(b) at least 75% of the consideration received in the Asset Sale by the Company or such Restricted Subsidiary for such Asset Sale is not less than in the fair market value form of the assets sold evidenced by a resolution of the board of directors of such entity set forth in an Officers' Certificate delivered to the Holders and (y) the consideration received by the Company or the relevant Restricted Subsidiary in respect of such Asset Sale consists of at least 75% cash or Cash Equivalents (for Equivalents. For purposes of this clause provision, each of the following will be deemed to be cash:
(y), cash and Cash Equivalents includes (Ai) any liabilities (liabilities, as reflected in shown on the Company's ’s most recent consolidated balance sheet) , of the Company or any Restricted Subsidiary (other than contingent liabilities and liabilities that are by their terms subordinated to the Notes or any GuaranteeFacilities) that are assumed by any the transferee of any such assets or other property in such Asset Sale, and where pursuant to a customary novation agreement that releases the Company or the relevant such Restricted Subsidiary is released from any further liability in connection therewith with respect to such liabilities, liability;
(Bii) any securities, notes or other similar obligations received by the Company or any such Restricted Subsidiary from such transferee that are converted promptly, but in any event within 180 90 days of the consummation of the related such Asset Sale Sale, subject to ordinary settlement periods, converted by the Company or such Restricted Subsidiary into cash and or Cash Equivalents (Equivalents, to the extent of the net cash proceeds or the Cash Equivalents (net of related costs) received upon such in that conversion) and (C) any Designated Noncash Consideration received by the Company or any such Restricted Subsidiary in the Asset Sale having an aggregate fair market value, as determined by the Board of the Company, taken together with all other Designated Noncash Consideration received pursuant to this clause that is at that time outstanding, not to exceed the greater of:
(1) $10,000,000; and
(2iii) 15% any stock or assets of Consolidated Tangible Assets at the time kind referred to in paragraph 1.2.2 or paragraph 1.2.5 of the next paragraph.
1.2 Within 360 days after the receipt of such Designated Noncash Consideration (with the fair market value of each item of such Designated Noncash Consideration being measured at the time received and without giving effect to subsequent changes in value).
(ii) If the Company or any Restricted Subsidiary engages in Net Proceeds from an Asset Sale, the Company may, at its option, within 12 months after such Asset Sale, (1) apply all or a portion of the Net Cash Proceeds to the permanent reduction of amounts outstanding under the Credit Agreement (and to correspondingly reduce the commitments, if any, with respect thereto) or to the permanent repayment of other Senior Indebtedness of the Company or a applicable Restricted Subsidiary, provided that the repayment of any Indebtedness incurred under the Credit Agreement in connection with the acquisition of any Facility with the proceeds of any subsequent Sale and Leaseback Transaction relating to such Facility shall not be required to result in the permanent reduction of the amounts outstanding under the Credit Agreement or correspondingly permanently reduce the commitments thereunder, or (2) invest (or enter into a legally binding agreement to invest) all or a portion of such Net Cash Proceeds in properties and assets to replace the properties and assets that were the subject of the Asset Sale or in properties and assets that will be used in the businesses of the Company or its Restricted Subsidiaries, as the case may be, existing on the Closing Date or in businesses the same, similar or reasonably related thereto. If any such legally binding agreement to invest ) may apply such Net Cash Proceeds is terminated, Proceeds:
1.2.1 to repay Indebtedness (other than Indebtedness owed to the Company mayor any Restricted Subsidiary) and other Obligations under the Revolving Credit Facility Agreement and any other Credit Facility (including the Facilities);
1.2.2 to make an Investment in any one or more businesses (provided that if such Investment is in the form of an acquisition of Capital Stock of a Person, within 90 days such acquisition results in such Person becoming a Restricted Subsidiary of the Company), assets, or property, in each case, used or useful in a Permitted Business;
1.2.3 to make an Investment in any one or more businesses (provided that if such termination Investment is in the form of an acquisition of Capital Stock of a Person, such acquisition results in such Person becoming a Restricted Subsidiary of the Company), properties or within 12 months assets that replace the properties or assets that are the subject of such Asset Sale, whichever is later, invest ;
1.2.4 to make a capital expenditure; or
1.2.5 to acquire other assets that are not classified as current assets under U.K. GAAP and that are used or useful in a Permitted Business; provided that the assets (including Voting Stock) acquired with the Net Proceeds from any disposition of Collateral are pledged as Collateral in accordance with the Transaction Security Documents and provided further that any application of such Net Cash Proceeds as provided shall not be permitted under paragraph (15)(a) of the definition of Permitted Investment where the disposition of assets was made by a non-SPV Entity.
1.3 The Company (or the applicable Restricted Subsidiary) will be deemed to have complied with the provisions set forth in clause paragraph 1.2.2 and paragraph 1.2.3 above if within 360 days after the Asset Sale that generated the Net Proceeds, the Company (1or the applicable Restricted Subsidiary) or (2) (without regard has entered into a binding agreement to apply such Net Proceeds and such Net Proceeds are actually applied within 180 days after the parenthetical contained in end of such clause (2)) above. 360-day period.
1.4 Pending the final application of any such Net Cash Proceeds, the Company may temporarily reduce revolving credit borrowings or otherwise invest such the Net Cash Proceeds in a any manner that is not prohibited by this Agreement. The amount of such .
1.5 Any Net Cash Proceeds from Asset Sales that are not so used applied or invested as set forth provided in paragraph 1.2 above in this paragraph shall will constitute "“Excess Proceeds."
(c) When the aggregate amount of Excess Proceeds exceeds $10,000,000, the Company will, within 30 days thereafter, make an offer to purchase (an "Excess Proceeds Offer") from all Holders of Notes on a pro rata basis, ” and shall be applied in accordance with the procedures set forth in this Agreement, the maximum principal amount Clause 11.2 (expressed as a multiple of $1,000) of Notes that may be purchased with the Excess Disposals Proceeds, at a purchase price in cash equal to 100% of the principal amount thereof, plus accrued interest, if any, to the date such offer to purchase is consummated. ).
1.6 To the extent that any portion of the aggregate principal amount Net Proceeds payable in respect of Notes tendered pursuant to such offer to purchase the Facilities is less denominated in a currency other than the Excess Proceeds, currency in which the Company may use such deficiency for general corporate purposes. If the aggregate principal amount of Notes validly tendered and not withdrawn by holders thereof exceeds the Excess Proceeds, the Notes to be purchased will be selected on a pro rata basis. Upon completion of such offer to purchaserelevant Facilities are denominated, the amount payable in respect of Excess Proceeds will be reset to zero.
(iii) The Company will comply with such Facilities shall not exceed the requirements net amount of Rule 14e-1 under funds in the Exchange Act and any other securities laws and regulations thereunder to the extent currency in which such laws and regulations Facilities are applicable in connection with each repurchase of Notes pursuant to an Excess Proceeds Offer. To the extent that the provisions of any securities laws or regulations conflict with the Asset Sales provisions of this Agreement, denominated as is actually received by the Company will comply with upon converting the applicable securities laws and regulations and will not be deemed to have breached its obligations under Section 5(j) relevant portion of this Agreement by virtue of the Net Proceeds into such conflictcurrency.
Appears in 1 contract
Samples: Notes Purchase Agreement (Membership Collective Group Inc.)
Asset Sales. (i) The Company shall not, and shall not permit any of its Restricted Subsidiary Subsidiaries to, engage in any consummate an Asset Sale unless unless: (xi) the Company (or the Restricted Subsidiary, as the case may be) receives consideration received by at the Company or such Restricted Subsidiary for time of such Asset Sale is not less than at least equal to the fair market value of the assets sold (evidenced by a resolution of the board Board of directors of such entity Directors set forth in an Officers' Certificate delivered to the Holders Trustee) of the assets or Equity Interests issued or sold or otherwise disposed of and (yii) at least 75% of the consideration therefor received by the Company or the relevant such Restricted Subsidiary is in respect the form of such Asset Sale consists of at least 75% cash or Cash Equivalents Equivalents; provided that the amount of (for purposes of this clause (y), cash and Cash Equivalents includes (Ax) any liabilities (as reflected in shown on the Company's consolidated or such Restricted Subsidiary's most recent balance sheet) ), of the Company or any Restricted Subsidiary (other than contingent liabilities and liabilities that are by their terms subordinated to the Notes or any GuaranteeGuarantee thereof) that are assumed by any the transferee of any such assets or other property in such Asset Sale, and where pursuant to a customary novation agreement that releases the Company or the relevant such Restricted Subsidiary is released from any further liability in connection therewith with respect to such liabilities, and (By) any securities, notes or other similar obligations received by the Company or any such Restricted Subsidiary from such transferee that are contemporaneously (subject to ordinary settlement periods) converted within 180 days of the consummation of the related Asset Sale by the Company or such Restricted Subsidiary into cash and Cash Equivalents (to the extent of the net cash proceeds or the Cash Equivalents (net received), shall be deemed to be cash for purposes of related costs) received upon such conversion) and (C) any Designated Noncash Consideration received by the Company or any such Restricted Subsidiary in the Asset Sale having an aggregate fair market value, as determined by the Board of the Company, taken together with all other Designated Noncash Consideration received pursuant to this clause that is at that time outstanding, not to exceed the greater of:
(1) $10,000,000; and
(2) 15% of Consolidated Tangible Assets at the time of Section 4.10. Within 270 days after the receipt of such Designated Noncash Consideration (with the fair market value of each item of such Designated Noncash Consideration being measured at the time received and without giving effect to subsequent changes in value).
(ii) If the Company or any Restricted Subsidiary engages in Net Proceeds from an Asset Sale, the Company maymay apply such Net Proceeds, at its option, within 12 months after such Asset Sale(a) to repay Indebtedness under the New Credit Facility, or (1b) apply all to the acquisition of a majority of the assets of, or a portion majority of the Net Cash Proceeds to the permanent reduction of amounts outstanding under the Credit Agreement (Voting Stock of, an entity that is engaged in another Permitted Business and to correspondingly reduce the commitments, if any, with respect thereto) or to the permanent repayment of other Senior Indebtedness of the Company or that becomes a Restricted Subsidiary, provided the making of a capital expenditure or the acquisition of other long-term assets that the repayment of any Indebtedness incurred under the Credit Agreement are used or useful in a Permitted Business ("Replacement Assets"); provided, however, that in connection with the acquisition any repayment of any Facility with the proceeds of any subsequent Sale and Leaseback Transaction relating to such Facility shall not be required to result in the permanent reduction of the amounts outstanding Indebtedness under the New Credit Agreement or correspondingly permanently reduce the commitments thereunder, or Facility pursuant to clause (2) invest (or enter into a legally binding agreement to invest) all or a portion of such Net Cash Proceeds in properties and assets to replace the properties and assets that were the subject of the Asset Sale or in properties and assets that will be used in the businesses of the Company or its Restricted Subsidiaries, as the case may be, existing on the Closing Date or in businesses the same, similar or reasonably related thereto. If any such legally binding agreement to invest such Net Cash Proceeds is terminateda), the Company may, within 90 days of will retire such termination or within 12 months of such Asset Sale, whichever is later, invest such Net Cash Proceeds as provided Indebtedness and will cause the related commitment to be reduced in clause (1) or (2) (without regard an amount equal to the parenthetical contained in such clause (2)) aboveprincipal amount so repaid. Pending the final application of any such Net Cash Proceeds, the Company may temporarily reduce revolving credit borrowings or otherwise invest such Net Cash Proceeds in a any manner that is not prohibited by this Agreementthe Indenture. The amount Any Net Proceeds from Asset Sales that are not applied or invested as provided in the first sentence of such Net Cash Proceeds not so used as set forth above in this paragraph shall will be deemed to constitute "Excess Proceeds."
(c) " When the aggregate amount of Excess Proceeds exceeds $10,000,0005.0 million, the Company will, within 30 days thereafter, will be required to make an offer to purchase (an "Excess Proceeds Offer") from all Holders of Notes on a pro rata basis(an "Asset Sale Offer") in accordance with the procedures set forth in Section 3.9 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 and Liquidated Damages thereon, if any, to the date of purchase, in accordance with the procedures set forth in this Agreement, the maximum principal amount (expressed as a multiple of $1,000) of Notes that may be purchased with the Excess Proceeds, at a purchase price in cash equal to 100% of the principal amount thereof, plus accrued interest, if any, to the date such offer to purchase is consummatedIndenture. To the extent that the aggregate principal amount any Excess Proceeds remain after consummation of Notes tendered pursuant to such offer to purchase is less than the Excess Proceedsan Asset Sale Offer, the Company may use such deficiency Excess Proceeds for general corporate purposesany purpose not otherwise prohibited by this Indenture. If the aggregate principal amount of Notes validly tendered and not withdrawn into such Asset Sale Offer surrendered by holders Holders thereof exceeds the amount of Excess Proceeds, the Trustee shall select the Notes to be purchased will be selected on a pro rata basis. Upon completion of such offer to purchase, the amount of Excess Proceeds shall be reset at zero. Notwithstanding the immediately preceding paragraphs, the Company and its Restricted Subsidiaries will be reset permitted to zero.
(iii) The Company will comply consummate an Asset Sale without complying with the requirements of Rule 14e-1 under the Exchange Act and any other securities laws and regulations thereunder such paragraphs to the extent (i) 100% of the consideration for such laws Asset Sale constitutes either Replacement Assets or cash or Cash Equivalents or any combination thereof and regulations are applicable (ii) such Asset Sale is for fair market value as determined in good faith by the Company's Board of Directors; provided, that if the total consideration with respect to any such Asset Sale is greater than $10.0 million (as determined in good faith by the Company's Board of Directors), the Company shall obtain a fairness opinion from an independent accounting, appraisal or investment banking firm of national standing; provided further, that any consideration not constituting Replacement Assets received by the Company or any of its Restricted Subsidiaries in connection with each repurchase of Notes pursuant any Asset Sale permitted to an Excess be consummated under this paragraph shall constitute Net Proceeds Offer. To the extent that subject to the provisions of any securities laws or regulations conflict with the Asset Sales provisions of this Agreement, the Company will comply with the applicable securities laws and regulations and will not be deemed to have breached its obligations under Section 5(j) of this Agreement by virtue of such conflictimmediately preceding paragraph.
Appears in 1 contract
Asset Sales. (ia) The Company shall not, and shall not permit any Restricted Subsidiary of its Subsidiaries to: (i) sell, engage lease, convey or other dispose of any assets (including, without limitation, by way of a sale and leaseback) other than sales of inventory in the ordinary course of business consistent with past practices (provided that the sale, lease, conveyance or otherwise disposition of all or substantially all of the assets of the Company and its Subsidiaries taken as a whole shall be governed by the provisions of Section 7.1 and/or Section 8.11 hereof and not by the provisions of this Section 8.5), or (ii) issue or sell Equity Interests of any of the Company's Subsidiaries, in the case of either clause (i) or (ii), whether in a single transaction or a series of related transactions (A) that have a fair market value in excess of $1.0 million or (B) for Net Proceeds in excess of $1.0 million (each of the foregoing, an "Asset ----- Sale"), unless (i) the Company (or the Subsidiary, as the case may be) receives ---- consideration at the time of such Asset Sale unless at least equal to the fair market value (xevidenced by a resolution of the Board of Directors set forth in an officers' certificate delivered to the Holders) of the assets or Equity Interests issued or sold or otherwise disposed of and (ii) at least 80% of the consideration therefor received by the Company or such Restricted Subsidiary for such Asset Sale is not less than in the fair market value form of cash; provided, however, that the assets sold evidenced by a resolution amount of the board of directors of such entity set forth in an Officers' Certificate delivered to the Holders and (y) the consideration received by the Company or the relevant Restricted Subsidiary in respect of such Asset Sale consists of at least 75% cash or Cash Equivalents (for purposes of this clause (y), cash and Cash Equivalents includes (Ax) any liabilities (as reflected in shown on the Company's consolidated or such Subsidiary's most recent balance sheet) of the Company or any Restricted Subsidiary (other than contingent liabilities and liabilities that are by their terms subordinated to the Notes or any GuaranteeGuarantee thereof) that are assumed by any the transferee of any such assets or other property in such Asset Sale, and where pursuant to any arrangement releasing the Company or the relevant Restricted such Subsidiary is released from any further liability in connection therewith with respect to such liabilities, and (By) any securities, notes or other similar obligations received by the Company or any such Restricted Subsidiary from such transferee that are immediately converted within 180 days of the consummation of the related Asset Sale by the Company or such Restricted Subsidiary into cash and Cash Equivalents (to the extent of the net cash proceeds or received), shall be deemed to be cash for purposes of this provision. Notwithstanding the Cash Equivalents foregoing, Asset Sales shall not be deemed to include (net i) a transfer of related costs) received upon such conversion) and (C) any Designated Noncash Consideration received assets by the Company to a Wholly Owned Subsidiary that is a Guarantor, or any such by a Wholly Owned Subsidiary to the Company or to another Wholly Owned Subsidiary that is a Guarantor, (ii) an issuance of Equity Interests by a Wholly Owned Subsidiary to the Company or to another Wholly Owned Subsidiary that is a Guarantor, (iii) a Restricted Subsidiary in the Asset Sale having an aggregate fair market value, as determined Payment or Permitted Investment that is permitted by the Board provisions -66- of the Company, taken together with all Section 8.2 hereof and (iv) any conversion of Cash Equivalents into any other Designated Noncash Consideration received pursuant to this clause that is at that time outstanding, not to exceed the greater of:form of Cash Equivalents.
(1b) $10,000,000; and
(2) 15% of Consolidated Tangible Assets at the time of Within 360 days after the receipt of such Designated Noncash Consideration (with the fair market value of each item of such Designated Noncash Consideration being measured at the time received and without giving effect to subsequent changes in value).
(ii) If the Company or any Restricted Subsidiary engages in Net Proceeds from an Asset Sale, the Company may, at its option, within 12 months after may apply such Asset Sale, Net Proceeds (1a) apply all to permanently reduce Senior Indebtedness or a portion of Indebtedness that ranks pari passu with the Net Cash Proceeds to the permanent reduction of amounts outstanding under the Credit Agreement Notes (and to correspondingly reduce the commitments, if any, commitments with respect thereto) or (b) to the permanent repayment of other Senior Indebtedness of the Company or a Restricted Subsidiary, provided that the repayment of any Indebtedness incurred under the Credit Agreement in connection with the acquisition of any Facility with a controlling interest in another business, the proceeds making of any subsequent Sale and Leaseback Transaction relating to such Facility shall not be required to result a capital expenditure or the acquisition of other long-term assets, in each case, in the permanent reduction of the amounts outstanding under the Credit Agreement or correspondingly permanently reduce the commitments thereunder, or (2) invest (or enter into a legally binding agreement to invest) all same or a portion similar line of such Net Cash Proceeds in properties and assets to replace the properties and assets that were the subject of the Asset Sale or in properties and assets that will be used in the businesses of business as the Company or its Restricted Subsidiaries, as the case may be, existing was engaged in on the Closing Date or in businesses the same, similar or reasonably related thereto. If any such legally binding agreement to invest such Net Cash Proceeds is terminated, the Company may, within 90 days date of such termination or within 12 months of such Asset Sale, whichever is later, invest such Net Cash Proceeds as provided in clause (1) or (2) (without regard to the parenthetical contained in such clause (2)) abovethis Agreement. Pending the final application of any such Net Cash Proceeds, the Company may temporarily reduce revolving credit borrowings Indebtedness under the Credit Agreement or otherwise invest such Net Cash Proceeds in a any manner that is not prohibited by this Agreement. The amount Any Net Proceeds from Asset Sales that are not applied or invested as provided in the first sentence of such Net Cash Proceeds not so used as set forth above in this paragraph shall be deemed to constitute "Excess Proceeds."
(c) . When the aggregate amount of Excess --------------- Proceeds exceeds $10,000,0005.0 million, the Company will, within 30 days thereafter, shall make an offer Asset Sale Offer pursuant to Section 7.8 hereof to purchase (an "Excess Proceeds Offer") from all Holders of Notes on a pro rata basis, in accordance with the procedures set forth in this Agreement, the maximum principal amount (expressed as a multiple of $1,000) of Notes that may be purchased with out of the Excess Proceeds, at a purchase an offer price in cash in an amount equal to 100% of the principal amount thereof, plus accrued interestand unpaid interest and Special Interest, if any, thereon to the date such offer to purchase is consummatedof purchase, in accordance with the procedures set forth in Section 7.8 hereof. To the extent that the aggregate principal amount of Notes tendered pursuant to such offer to purchase an Asset Sale Offer is less than the Excess Proceeds, the Company may use such deficiency any remaining Excess Proceeds for general corporate purposes. If the aggregate principal amount of Notes validly tendered and not withdrawn surrendered by holders Holders thereof exceeds the amount of Excess Proceeds, the Company shall select the Notes to be purchased will be selected on a pro rata basis. Upon completion of such offer to purchase, the amount of Excess Proceeds will shall be reset to at zero.
(iii) 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 Excess Proceeds Offer. To the extent that the provisions of any securities laws or regulations conflict with the Asset Sales provisions of this Agreement, the Company will comply with the applicable securities laws and regulations and will not be deemed to have breached its obligations under Section 5(j) of this Agreement by virtue of such conflict.
Appears in 1 contract
Asset Sales. (ia) The Company Holdings shall not, and shall not permit any of the Restricted Subsidiary Subsidiaries to, engage in any cause or make an Asset Sale Sale, unless (x) Holdings or any Restricted Subsidiary, as the case may be, receives consideration received by at the Company or such Restricted Subsidiary for time of such Asset Sale is not less than at least equal to the fair market value Fair Market Value (as determined in good faith by Holdings) of the assets sold evidenced by a resolution of the board of directors of such entity set forth in an Officers' Certificate delivered to the Holders or otherwise disposed of, and (y) the consideration received by the Company or the relevant Restricted Subsidiary in respect of such Asset Sale consists of at least 75% cash of the consideration therefor received by Holdings or such Restricted Subsidiary, as the case may be, is in the form of Cash Equivalents or Additional Assets; provided that the amount of:
(for purposes of this clause (y), cash and Cash Equivalents includes (Ai) any liabilities (as reflected shown on Holdings’ or a Restricted Subsidiary’s most recent balance sheet or in the Company's consolidated balance sheetnotes thereto) of the Company Holdings or any a Restricted Subsidiary (other than contingent liabilities and liabilities that are by their terms subordinated to the Notes or any Subsidiary Guarantee) that are assumed by any the transferee of any such assets or other property in such Asset Sale, and where the Company that are otherwise cancelled or the relevant Restricted Subsidiary is released from any further liability terminated in connection therewith with respect to the transaction with such liabilities, transferee,
(Bii) any securities, notes or other similar obligations or other securities or assets received by the Company Holdings or any such Restricted Subsidiary from such transferee that are converted within 180 days of the consummation of the related Asset Sale by the Company Holdings or such Restricted Subsidiary into cash and Cash Equivalents within 180 days of the receipt thereof (to the extent of the net cash proceeds received),
(iii) with respect to any Asset Sale of Oil and Gas Properties by Holdings or any Restricted Subsidiary, the Cash Equivalents 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 (net or an Affiliate thereof),
(iv) Indebtedness of related costsany Restricted Subsidiary that is no longer a Restricted Subsidiary as a result of such Asset Sale, to the extent that Holdings and each other Restricted Subsidiary are released from any guarantee of payment of such Indebtedness in connection with the Asset Sale (without duplication of Section 4.06(a)(i) hereto),
(v) consideration consisting of Indebtedness of Holdings or any Restricted Subsidiary (other than Subordinated Indebtedness) received upon such conversion) after the Issue Date from Persons who are not Holdings or any Restricted Subsidiary in connection with the Asset Sale and that is cancelled, and
(Cvi) any Designated Noncash Non-cash Consideration received by the Company Holdings or any such Restricted Subsidiary in the such Asset Sale having an aggregate fair market value, Fair Market Value (as determined in good faith by the Board of the CompanyHoldings), taken together with all other Designated Noncash Non-cash Consideration received pursuant to this clause Section 4.06(a)(vi) that is at that time outstanding, not to exceed the greater of:
(1) $10,000,000; and
(2) 15of 4% of Adjusted Consolidated Net Tangible Assets and $300.0 million at the time of the receipt of such Designated Noncash Non-cash Consideration (with the fair market value Fair Market Value of each item of such Designated Noncash Non-cash Consideration being measured at the time received and without giving effect to subsequent changes in value), shall be deemed to be Cash Equivalents for the purposes of this Section 4.06(a).
(b) Within 365 days after Holdings’ or any Restricted Subsidiary’s receipt of the Net Proceeds of any Asset Sale, Holdings or such Restricted Subsidiary may apply the Net Proceeds from such Asset Sale, at its option:
(i) to repay (A) Indebtedness constituting First-Priority Lien Obligations 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 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 an Issuer or any Subsidiary Guarantor shall so reduce Obligations under Pari Passu Indebtedness that does not constitute First-Priority Lien Obligations, the Issuers will equally and ratably reduce Obligations under the Notes pursuant to Section 3.01), through open-market purchases (provided that such purchases are at or above 100% of the principal amount thereof or, in the event that the Notes were issued with significant original issue discount, 100% of the accreted value thereof) or by making an offer (in accordance with the procedures set forth below for an Asset Sale Offer) to all holders to purchase at a purchase price equal to 100% of the principal amount thereof or, in the event that the Notes were issued with significant original issue discount, 100% of the accreted value thereof, (plus accrued and unpaid interest, if any, the pro rata principal amount of Notes, in each case other than Indebtedness owed to Holdings or an Affiliate of Holdings);
(ii) If the Company to make an Investment in any one or any Restricted Subsidiary engages in an Asset Sale, the Company may, at its option, within 12 months after such Asset Sale, more businesses (1) apply all or a portion of the Net Cash Proceeds to the permanent reduction of amounts outstanding under the Credit Agreement (and to correspondingly reduce the commitments, if any, with respect thereto) or to the permanent repayment of other Senior Indebtedness of the Company or a Restricted Subsidiary, provided that if such Investment is in the repayment form of any Indebtedness incurred under the Credit Agreement in connection with the acquisition of any Facility with the proceeds Capital Stock of any subsequent Sale and Leaseback Transaction relating to a Person, such Facility shall not be required to result acquisition results in the permanent reduction such Person becoming a Restricted Subsidiary of the amounts outstanding under the Credit Agreement or correspondingly permanently reduce the commitments thereunderHoldings), assets, or property or capital expenditures, in each case (2A) invest used or useful in a Similar Business or (or enter into a legally binding agreement to investB) all or a portion of such Net Cash Proceeds in properties and assets to that replace the properties and assets that were are the subject of the Asset Sale or in properties and assets that will be used in the businesses of the Company or its Restricted Subsidiaries, as the case may be, existing on the Closing Date or in businesses the same, similar or reasonably related thereto. If any such legally binding agreement to invest such Net Cash Proceeds is terminated, the Company may, within 90 days of such termination or within 12 months of such Asset Sale; or
(iii) to invest in Additional Assets. In the case of Section 4.06(b)(ii), whichever is later, invest 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 Cash Proceeds; provided that in the event such binding commitment is later canceled or terminated for any reason before such Net Proceeds as provided in clause are so applied, then such Net Proceeds shall constitute Excess Proceeds unless Holdings or such Restricted Subsidiary enters into another binding commitment (1a “Second Commitment”) within six months of such cancellation or (2) (without regard termination of the prior binding commitment; provided, further, that 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 parenthetical contained in extent such clause (2)) aboveSecond Commitment is later cancelled or terminated for any reason before such Net Proceeds are applied or are not applied within 180 days of such Second Commitment, then such Net Proceeds shall constitute Excess Proceeds. Pending the final application of any such Net Cash Proceeds, the Company Holdings or such Restricted Subsidiary may temporarily reduce Indebtedness under a revolving credit borrowings facility, if any, or otherwise invest such Net Cash Proceeds in a any manner that is not prohibited by this AgreementIndenture. The amount Any Net Proceeds from any Asset Sale that are not applied as provided and within the time period set forth in the first sentence of this Section 4.06(b) (it being understood that any portion of such Net Cash 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 so used as set forth above in this paragraph shall such offer is accepted) will be deemed to constitute "“Excess Proceeds."
(c) ” When the aggregate amount of Excess Proceeds exceeds $10,000,00050.0 million, the Company will, within 30 days thereafter, Issuers shall make an offer to purchase all holders of Notes (and, at the option of the Issuers, to holders of any Pari Passu Indebtedness) (an "“Asset Sale Offer”) to purchase the maximum principal amount of Notes (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 Offer"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 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 not including) from all Holders the date fixed for the closing of Notes on a pro rata basissuch offer, in accordance with the procedures set forth in this AgreementSection 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 delivering electronically if held by the Depository, the maximum principal amount (expressed as a multiple of $1,000) of Notes that may be purchased with the Excess Proceeds, at a purchase price in cash equal to 100% of the principal amount thereof, plus accrued interest, if any, notice required pursuant to the date such offer terms of Sections 3.05 and 4.06(f), with a copy to purchase is consummatedthe Trustee. To the extent that the aggregate principal amount of Notes (and such Pari Passu Indebtedness) tendered pursuant to such offer to purchase an Asset Sale Offer is less than the Excess Proceeds, the Company Holdings may use such deficiency any remaining Excess Proceeds for general corporate purposesany purpose that is not prohibited by this Indenture. If the aggregate principal amount of Notes validly tendered (and not withdrawn such Pari Passu Indebtedness) surrendered by holders thereof exceeds the amount of Excess Proceeds, the Issuers shall select the Notes to be purchased will be selected on a pro rata basisin the manner described in Section 4.06(e). Upon completion of any such offer to purchaseAsset Sale Offer, the amount of Excess Proceeds will shall be reset to at zero.
(iiic) The Company Issuers will comply with the requirements of Rule 14e-1 under the Exchange Act and any other securities laws and regulations thereunder to the extent such laws and or regulations are applicable in connection with each the repurchase of the Notes pursuant to an Excess Proceeds Asset Sale Offer. To the extent that the provisions of any securities laws or regulations conflict with the Asset Sales provisions of this AgreementIndenture, the Company Issuers will comply with the applicable securities laws and regulations and will shall not be deemed to have breached its obligations under described in this Indenture by virtue thereof.
(d) Not later than the date upon which written notice of an Asset Sale Offer is delivered to the Trustee as provided above, Holdings shall deliver to the Trustee an Officers’ Certificate as to (i) the amount of the Excess Proceeds, (ii) the allocation of the Net Proceeds from the Asset Sales pursuant to which such Asset Sale Offer is being made and (iii) the compliance of such allocation with the provisions of Section 5(j4.06(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 Agreement 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 virtue 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 the Note, with an appropriate form duly completed, to the Issuers at the address specified in the notice at least three Business Days prior to the purchase date. Holders shall be entitled to withdraw their election if the Trustee or an Issuer receives not later than one Business Day prior to the purchase date, a telegram, telex, facsimile transmission or letter setting forth the name of the holder, the principal amount of the Note which was delivered by the holder for purchase and a statement that such holder is withdrawing his election to have such Note purchased. If 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 conflictNotes for purchase shall be made by the Issuers in compliance with the requirements of the principal national securities exchange, if any, on which such Notes are listed (and the Issuers shall notify the Trustee of any such listing), or if such Notes are not so listed, on a pro rata basis to the extent practicable, by lot or by such other method as the Trustee shall deem fair and appropriate (and in such manner as complies with the procedures of the Depository, if applicable); provided that no Notes of $2,000 or less shall be purchased in part. Selection of such Pari Passu Indebtedness shall be made pursuant to the terms of such Pari Passu Indebtedness.
(f) Notices of an Asset Sale Offer shall be mailed by first class mail, postage prepaid, or delivered electronically if held by the Depository, at least 30 but not more than 60 days before the purchase date to each holder of Notes at such holder’s registered address. If any Note is to be purchased in part only, any notice of purchase that relates to such Note shall state the portion of the principal amount thereof that has been or is to be purchased.
Appears in 1 contract
Samples: Indenture (EP Energy Corp)
Asset Sales. (ia) The Company Parent and the Issuers shall not, and shall not permit any of the other Restricted Subsidiary Subsidiaries to, engage in any cause or make an Asset Sale Sale, unless (x) the Parent or any Restricted Subsidiary, as the case may be, receives consideration received by at the Company or such Restricted Subsidiary for time of such Asset Sale is not less than at least equal to the fair market value Fair Market Value (as determined in good faith by the Issuer) of the assets sold evidenced by a resolution of the board of directors of such entity set forth in an Officers' Certificate delivered to the Holders or otherwise disposed of, and (y) the consideration received by the Company or the relevant Restricted Subsidiary in respect of such Asset Sale consists of at least 75% cash of the consideration therefor received by the Parent or such Restricted Subsidiary, as the case may be, is in the form of Cash Equivalents; provided that the amount of each of the following shall be deemed to be Cash Equivalents (for purposes of this clause provision:
(y), cash and Cash Equivalents includes (Ai) any liabilities (as reflected shown on the Parent or a Restricted Subsidiary’s most recent balance sheet or in the Company's consolidated balance sheetnotes thereto) of the Company Parent or any a Restricted Subsidiary (other than contingent liabilities and liabilities that are by their terms subordinated to the Notes or any Guarantee) that are assumed by any the transferee of any such assets or other property in such Asset Sale, and where the Company that are otherwise canceled or the relevant Restricted Subsidiary is released from any further liability terminated in connection therewith with respect to the transaction with such liabilitiestransferee, excluding any other Indebtedness included in the calculation of Consolidated Total Indebtedness that is both (B1) unsecured or Junior Priority Indebtedness and (2) a direct obligation of, or guaranteed by, all or substantially all of the Issuers and the Guarantors;
(ii) any securities, notes or other similar obligations or other securities or assets received by the Company Parent or any such Restricted Subsidiary from such transferee that are converted within 180 days of the consummation of the related Asset Sale by the Company Parent or such Restricted Subsidiary into cash and or Cash Equivalents within 180 days of the receipt thereof (to the extent of the net cash proceeds or received);
(iii) Indebtedness of any Restricted Subsidiary that is no longer a Restricted Subsidiary as a result of such Asset Sale, to the extent that the Parent and each Restricted Subsidiary are released from any guarantee of payment of such Indebtedness in connection with the Asset Sale and the assumption of such guarantee, if any, would be deemed to be Cash Equivalents under clause (net i) above;
(iv) consideration consisting of related costsIndebtedness of the Parent or any Restricted Subsidiary (other than Subordinated Indebtedness) received upon such conversion) and after the Issue Date from Persons who are not the Parent or any Restricted Subsidiary; and
(Cv) any Designated Noncash Non-cash Consideration received by the Company Parent or any such Restricted Subsidiary in the such Asset Sale having an aggregate fair market value, Fair Market Value (as determined in good faith by the Board of the CompanyIssuer), taken together with all other Designated Noncash Non-cash Consideration received pursuant to this clause Section 4.06(a)(v) that is at that time outstanding, not to exceed the greater of:
(1) of $10,000,000; and
(2) 15% 600.0 million and a percentage of Consolidated Tangible Total Assets equal to the Applicable TA Percentage at the time of the receipt of such Designated Noncash Non-cash Consideration (with the fair market value Fair Market Value of each item of such Designated Noncash Non-cash Consideration being measured at the time received and without giving effect to subsequent changes in value).
(iib) If Within 365 days after the Company Parent’s or any Restricted Subsidiary engages in an Subsidiary’s receipt of the Net Proceeds of any Asset Sale, the Company mayParent or such Restricted Subsidiary may apply the Net Proceeds from such Asset Sale, at its option:
(i) to repay (A) Indebtedness constituting Bank Indebtedness and other Pari Passu Indebtedness, within 12 months after such Asset Salein each case that is secured by a Lien permitted under this Indenture (and, if the Indebtedness repaid is revolving credit Indebtedness, to correspondingly reduce commitments with respect thereto), (1B) apply all Indebtedness of a Restricted Subsidiary that is not a Guarantor, (C) First Priority Notes Obligations or a portion (D) other Pari Passu Indebtedness (provided that if the Parent, an Issuer or any Guarantor shall so reduce Obligations under such Pari Passu Indebtedness under this clause (D), the Issuer will equally and ratably reduce First Priority Notes Obligations in accordance with Article III of this Indenture, through open-market purchases (provided that such purchases are at or above 100% of the Net Cash Proceeds 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, the pro rata principal amount of Notes), in each case other than Indebtedness owed to the permanent reduction Parent or an Affiliate of amounts outstanding the Parent; provided that the Net Proceeds from an Asset Sale of First Lien Collateral or assets of the Cadence IP Licensee may not be applied to repay any Indebtedness other than the Notes or other Pari Passu Indebtedness secured by a Lien (other than a Lien that is junior in priority to the Liens securing the Notes or any Guarantee) on such First Lien Collateral, except as otherwise permitted under this covenant (provided that if the Parent, an Issuer or any Guarantor shall so repay Obligations under such Pari Passu Indebtedness (other than Pari Passu Indebtedness secured by a Lien that is senior in priority to the Liens securing the Notes or any Guarantee), the Issuer will, to the extent permitted under the Credit Agreement Agreement, the Existing First Lien Notes and other Pari Passu Indebtedness as in effect on the Issue Date, equally and ratably reduce First Priority Notes Obligations in accordance with Article III of this Indenture, through open-market purchases (and to correspondingly reduce provided that such purchases are at or above 100% of the commitments, if any, with respect theretoprincipal amount thereof) or by making an offer (in accordance with the procedures set forth below for an Asset Sale Offer) to the permanent repayment of other Senior Indebtedness all holders to purchase at a purchase price equal to 100% of the Company or a Restricted Subsidiaryprincipal amount thereof (or, provided in the event that the repayment of any Indebtedness incurred under the Credit Agreement in connection Notes were issued with the acquisition of any Facility with the proceeds of any subsequent Sale and Leaseback Transaction relating to such Facility shall not be required to result in the permanent reduction significant original issue discount, 100% of the amounts outstanding under accreted value thereof), plus accrued and unpaid interest (it being understood, for the Credit Agreement or correspondingly permanently reduce the commitments thereunderavoidance of doubt, or (2) invest (or enter into a legally binding agreement to invest) all or a that any portion of such Net Cash Proceeds used to make an offer to purchase Notes in properties accordance with the procedures set forth below for an Asset Sale Offer shall be deemed to have been so applied to reduce First Priority Notes Obligations whether or not such offer is accepted)); provided, further, that if such Asset Sale involves the disposition of First Lien Collateral, the Parent or such Restricted Subsidiary has complied with the provisions of this Indenture and assets the First Lien Collateral Documents;
(ii) to make an investment in any one or more businesses (provided that if such investment is in the form of the acquisition of Capital Stock of a Person, such acquisition results in such Person becoming a Restricted Subsidiary of the Parent), 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 were 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 or in properties and assets giving rise to such Net Proceeds was contractually committed; or
(iii) to make Permitted Opioid Settlement Prepayments. In the case of Section 4.06(b)(ii), a binding commitment shall be treated as a permitted application of the Net Proceeds from the date of such commitment until the 12-month anniversary of the date of the receipt of such Net Proceeds; provided that will be used in the businesses event such binding commitment is later canceled or terminated for any reason before such Net Proceeds are so applied, then such Net Proceeds shall constitute Excess Proceeds unless the Parent or such Restricted Subsidiary enters into another binding commitment (a “Second Commitment”) within six months of such cancellation or termination of the Company prior binding commitment; provided, further, that the Parent or its such Restricted Subsidiaries, as Subsidiary may only enter into a Second Commitment under the case may be, existing on foregoing provision one time with respect to each Asset Sale and to the Closing Date extent such Second Commitment is later canceled or in businesses the same, similar or reasonably related thereto. If terminated for any such legally binding agreement to invest reason before such Net Cash Proceeds is terminated, the Company may, are applied or are not applied within 90 180 days of such termination or within 12 months of such Asset SaleSecond Commitment, whichever is later, invest then such Net Cash Proceeds as provided in clause (1) or (2) (without regard to the parenthetical contained in such clause (2)) aboveshall constitute Excess Proceeds. Pending the final application of any such Net Cash Proceeds, the Company Parent or such Restricted Subsidiary may temporarily reduce Indebtedness under a revolving credit borrowings facility, if any, or otherwise invest such Net Cash Proceeds in a any manner that is not prohibited by this AgreementIndenture. The amount Any Net Proceeds from any Asset Sale that are not applied as provided and within the time period set forth in the first paragraph of this Section 4.06(b) (it being understood that any portion of such Net Cash 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 so applied whether or not so used as set forth above in this paragraph shall such offer is accepted) will be deemed to constitute "“Excess Proceeds."
(c) ” When the aggregate amount of Excess Proceeds exceeds $10,000,000125.0 million, the Company will, within 30 days thereafter, Issuer shall make an offer to purchase all holders of Notes (and, at the option of the Issuer, to holders of any other Pari Passu Indebtedness secured by a Lien (other than a Lien that is junior in priority to the Liens securing the Notes or a Guarantee) on the First Lien Collateral (the “Eligible Pari Passu Indebtedness”)) (an "“Asset Sale Offer”) to purchase the maximum principal amount of Notes (and any such Eligible 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 Offer") from all Holders at an offer price in cash in an amount equal to 100% of the principal amount thereof (or, in the event the Notes on a pro rata basisor any such Eligible Pari Passu Indebtedness were issued with significant original issue discount, 100% of the accreted value thereof), plus accrued and unpaid interest (or, in respect of such Eligible Pari Passu Indebtedness, such lesser price, if any, as may be provided for by the terms of such Eligible Pari Passu Indebtedness), to, but excluding, the date fixed for the closing of such offer, in accordance with the procedures set forth in this AgreementIndenture. 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 $125.0 million by mailing, or delivering electronically if the Notes are held by the Depository, the maximum principal amount (expressed as a multiple of $1,000) of Notes that may be purchased with the Excess Proceeds, at a purchase price in cash equal to 100% of the principal amount thereof, plus accrued interest, if any, notice required pursuant to the date such offer terms of this Indenture, with a copy to purchase is consummatedthe First Lien Trustee. To the extent that the aggregate principal amount of Notes (and such Eligible Pari Passu Indebtedness) tendered pursuant to such offer to purchase an Asset Sale Offer is less than the Excess Proceeds, the Company Issuer may use such deficiency any remaining Excess Proceeds for general corporate purposesany purpose that is not prohibited by this Indenture. If the aggregate principal amount of Notes validly tendered and not withdrawn such Eligible Pari Passu Indebtedness surrendered by holders thereof exceeds the amount of Excess Proceeds, the First Lien Trustee, upon receipt of written notice from the Issuer of the aggregate principal amount to be selected, shall select the Notes (but not such Eligible Pari Passu Indebtedness) to be purchased will be selected on a pro rata basisin the manner described in Section 4.06(e). Upon completion of any such offer to purchaseAsset Sale Offer, the amount of Excess Proceeds will shall be reset to at zero.
(iiic) The Company 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 and or regulations are applicable in connection with each the repurchase of the Notes pursuant to an Excess Proceeds Asset Sale Offer. To the extent that the provisions of any securities laws or regulations conflict with the Asset Sales provisions of this AgreementIndenture, the Company Issuer will comply with the applicable securities laws and regulations and will shall not be deemed to have breached its obligations under Section 5(j) of described in this Agreement Indenture by virtue thereof.
(d) [reserved].
(e) If more Notes (and such Eligible Pari Passu Indebtedness) are tendered pursuant to an Asset Sale Offer than the Issuers are required to purchase, selection of such conflictNotes (but not such Eligible Pari Passu Indebtedness) for purchase shall be made by the First Lien Trustee on a pro rata basis to the extent practicable, by lot or by such other method as the First Lien Trustee shall deem fair and appropriate (and in such manner as complies with the requirements of the Depository, if applicable); provided that no Notes of $2,000 or less shall be purchased in part. Selection of such Eligible Pari Passu Indebtedness shall be made pursuant to the terms of such Eligible 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 the Notes are held by the Depository, at least 10 days but not more than 60 days before the purchase date to each holder of Notes at such holder’s registered address. If any Note is to be purchased in part only, any notice of purchase that relates to such Note shall state the portion of the principal amount thereof that has been or is to be purchased.
Appears in 1 contract
Samples: Indenture (Mallinckrodt PLC)
Asset Sales. (i) The Company Partnership shall not, and shall not permit any of its Restricted Subsidiary Subsidiaries to, engage (i) sell, lease, convey or otherwise dispose of any assets (including by way of a Sale and Leaseback Transaction) other than sales of inventory in the ordinary course of business and consistent with past practice (provided, that the sale, lease, conveyance or other disposition of all or substantially all of the assets of the Partnership shall be governed by the provisions of this Indenture set forth under Section 10.17 hereof or Article VIII hereof and not by the provisions of this Section 10.16) or (ii) issue or sell Capital Stock of any of its Restricted Subsidiaries, in the case of either clause (i) or (ii) above, whether in a single transaction or a series of related transactions (each of the foregoing, an “Asset Sale Sale”), unless (x) the Partnership (or the Restricted Subsidiary, as the case may be) receives consideration at the time of such Asset Sale at least equal to the fair market value (as determined in good faith by the General Partner) of the assets sold or otherwise disposed of and (y) at least 80% of the consideration therefor received by the Company Partnership or such Restricted Subsidiary for such Asset Sale is not less than in the fair market value form of cash; provided, however, that the assets sold evidenced by a resolution amount of the board of directors of such entity set forth in an Officers' Certificate delivered to the Holders and (y) the consideration received by the Company or the relevant Restricted Subsidiary in respect of such Asset Sale consists of at least 75% cash or Cash Equivalents (for purposes of this clause (y), cash and Cash Equivalents includes (A) any liabilities (as reflected shown on the Partnership’s or such Restricted Subsidiary’s most recent balance sheet or in the Company's consolidated balance sheetnotes thereto) of the Company Partnership or any Restricted Subsidiary (other than contingent liabilities and liabilities that are by their terms subordinated to the Notes or any Guarantee) that are assumed by any the transferee of any such assets or other property in such Asset Sale, and where the Company or the relevant Restricted Subsidiary is released from any further liability in connection therewith with respect to such liabilities, (B) any securities, notes or other similar obligations received by the Company Partnership or any such Restricted Subsidiary from such transferee that are immediately converted within 180 days of the consummation of the related Asset Sale by the Company Partnership or such Restricted Subsidiary into cash and Cash Equivalents (to the extent of the net cash received), shall be deemed to be cash for purposes of this provision; and provided, further, that the 80% limitation referred to in this clause (y) shall not apply to any Asset Sale in which the cash portion of the consideration received therefrom, determined in accordance with the foregoing proviso, is equal to or greater than what the after-tax proceeds would have been had such Asset Sale complied with the aforementioned 80% limitation. Notwithstanding the foregoing, Asset Sales shall not be deemed to include (1) any transfer of assets or Capital Stock by the Cash Equivalents Partnership or any of its Restricted Subsidiaries to a Wholly-Owned Restricted Subsidiary of the Partnership, (net 2) any transfer of related costsassets or Capital Stock by the Partnership or any of its Restricted Subsidiaries to any Person in exchange for other assets used in a line of business permitted under Section 10.15 hereof and having a fair market value (as determined in good faith by the General Partner) received upon such conversion) not less than that of the assets so transferred and (C3) any Designated Noncash Consideration transfer of assets pursuant to a Permitted Investment. In the event that the aggregate Net Proceeds received by the Company Partnership or any such of its Restricted Subsidiary Subsidiaries from one or more Assets Sales in the Asset Sale having an aggregate fair market value, as determined by the Board any fiscal year of the CompanyPartnership exceed $10 million, taken together within 270 days after the date such aggregate Net Proceeds exceed such amount (or such longer period as may be required to comply with all other Designated Noncash Consideration received pursuant to this clause that is at that time outstandingany agreement in effect on April 19, not to exceed the greater of:
(1) $10,000,000; and
(2) 15% of Consolidated Tangible Assets at the time of the receipt of such Designated Noncash Consideration (with the fair market value of each item of such Designated Noncash Consideration being measured at the time received and without giving effect to subsequent changes in value1995).
(ii) If the Company or any Restricted Subsidiary engages in an Asset Sale, the Company mayPartnership, at its option, within 12 months after shall apply the amount of such Asset Sale, aggregate Net Proceeds in excess of $10 million (1less the amount of any such Net Proceeds previously applied during such fiscal year for the purposes set forth in clauses (a) apply all or (b) below) to (a) reduce Indebtedness of a portion of the Net Cash Proceeds to the Restricted Subsidiary (with a permanent reduction of amounts outstanding under the Credit Agreement (and to correspondingly reduce the commitments, if any, with respect thereto) or to the permanent repayment of other Senior Indebtedness of the Company or a Restricted Subsidiary, provided that the repayment of any Indebtedness incurred under the Credit Agreement in connection with the acquisition of any Facility with the proceeds of any subsequent Sale and Leaseback Transaction relating to such Facility shall not be required to result availability in the permanent reduction case of the amounts outstanding under the Credit Agreement or correspondingly permanently reduce the commitments thereunder, or (2) invest (or enter into a legally binding agreement to invest) all or a portion of such Net Cash Proceeds in properties and assets to replace the properties and assets that were the subject of the Asset Sale or in properties and assets that will be used in the businesses of the Company or its Restricted Subsidiaries, as the case may be, existing on the Closing Date or in businesses the same, similar or reasonably related thereto. If any such legally binding agreement to invest such Net Cash Proceeds is terminated, the Company may, within 90 days of such termination or within 12 months of such Asset Sale, whichever is later, invest such Net Cash Proceeds as provided in clause (1revolving Indebtedness) or (2b) (without regard to make an investment in assets in the parenthetical contained same line of business the Partnership was engaged in such clause (2)) aboveon the Issue Date for the series of Securities. Pending the final application of any such Net Cash Proceeds, the Company Partnership or any Restricted Subsidiary may temporarily reduce revolving credit borrowings under the Bank Credit Facilities or otherwise invest such Net Cash Proceeds in a any manner that is not prohibited by this AgreementIndenture. The amount of Any such Net Cash Proceeds that are not so used applied or invested as set forth above provided in the first sentence of this paragraph shall will be deemed to constitute "“Excess Proceeds."
(c) ” When the aggregate amount of Excess Proceeds exceeds $10,000,0005 million, the Company will, within 30 days thereafter, Issuers shall make an offer to purchase (an "Excess Proceeds Offer") from all Holders of Notes on a pro rata basis(an “Asset Sale Offer”) to purchase the maximum principal amount of Notes that may be purchased out of the Excess Proceeds, at an offer price in cash in an amount equal to 100% of the principal amount thereof plus accrued and unpaid interest, if any, to the date of purchase, in accordance with the procedures set forth in this Agreement, the maximum principal amount (expressed as a multiple of $1,000) of Notes that may be purchased with the Excess Proceeds, at a purchase price in cash equal to 100% of the principal amount thereof, plus accrued interest, if any, to the date such offer to purchase is consummatedIndenture. To the extent that the aggregate principal amount of Notes Securities tendered pursuant to such offer to purchase an Asset Sale Offer is less than the Excess Proceeds, the Company Partnership or any Restricted Subsidiary may use such deficiency for general corporate business purposes. If the aggregate principal amount of Notes validly tendered and not withdrawn Securities surrendered by holders Holders thereof exceeds the amount of Excess Proceeds, the Notes Trustee shall select the Securities to be purchased will be selected on a pro rata basis. Notwithstanding the foregoing, if the Issuers are required to commence an Asset Sale Offer at any time when the Issuers have securities outstanding ranking pari passu in right of payment with the Notes and the terms of those securities provide that a similar offer must be made with respect to those other securities, then the Asset Sale Offer for the Securities will be made concurrently with the other offers and securities of each issue will be accepted on a pro rata basis in proportion to the aggregate principal amount of securities of each issue which their holders elect to have purchased. Upon completion of such offer to purchasethe Asset Sale Offer, the amount of Excess Proceeds will be reset at zero. In the event the Issuers are required to zero.
(iii) The Company will comply with make an Asset Sale Offer pursuant to Section 11.08 and Section 10.16, and the requirements amount of Rule 14e-1 under the Exchange Act and any other securities laws and regulations thereunder Net Proceeds from the Asset Sale is not evenly divisible by $1,000, the Trustee shall promptly refund to the extent Issuers the portion of such laws and regulations are applicable in connection with each repurchase Excess Proceeds that is not necessary to purchase the immediately lesser principal amount of Notes pursuant to an Excess Proceeds Offer. To the extent that the provisions of any securities laws or regulations conflict with the Asset Sales provisions of this Agreement, the Company will comply with the applicable securities laws and regulations and will not be deemed to have breached its obligations under Section 5(j) of this Agreement by virtue of such conflictis so divisible.
Appears in 1 contract
Samples: Indenture (Amerigas Finance Corp)
Asset Sales. (ia) The Company EPE Holdings shall not, and shall not permit any of the Restricted Subsidiary Subsidiaries to, engage in any cause or make an Asset Sale Sale, unless (x) EPE Holdings or any Restricted Subsidiary, as the case may be, receives consideration received by at the Company or such Restricted Subsidiary for time of such Asset Sale is not less than at least equal to the fair market value Fair Market Value (as determined in good faith by EPE Holdings) of the assets sold evidenced by a resolution of the board of directors of such entity set forth in an Officers' Certificate delivered to the Holders or otherwise disposed of, and (y) the consideration received by the Company or the relevant Restricted Subsidiary in respect of such Asset Sale consists of at least 75% cash of the consideration therefor received by EPE Holdings or such Restricted Subsidiary, as the case may be, is in the form of Cash Equivalents or Additional Assets; provided that the amount of:
(for purposes of this clause (y), cash and Cash Equivalents includes (Ai) any liabilities (as reflected shown on EPE Holdings’ or a Restricted Subsidiary’s most recent balance sheet or in the Company's consolidated balance sheetnotes thereto) of the Company EPE Holdings or any a Restricted Subsidiary (other than contingent liabilities and liabilities that are by their terms subordinated to the Notes or any Subsidiary Guarantee) that are assumed by any the transferee of any such assets or other property in such Asset Sale, and where the Company that are otherwise cancelled or the relevant Restricted Subsidiary is released from any further liability terminated in connection therewith with respect to the transaction with such liabilities, transferee,
(Bii) any securities, notes or other similar obligations or other securities or assets received by the Company EPE Holdings or any such Restricted Subsidiary from such transferee that are converted within 180 days of the consummation of the related Asset Sale by the Company EPE Holdings or such Restricted Subsidiary into cash and Cash Equivalents within 180 days of the receipt thereof (to the extent of the net cash proceeds received),
(iii) with respect to any Asset Sale of Oil and Gas Properties by EPE Holdings or any Restricted Subsidiary, the Cash Equivalents 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 (net of related costs) received upon such conversion) and or an Affiliate thereof), and
(Civ) any Designated Noncash Non-cash Consideration received by the Company EPE Holdings or any such Restricted Subsidiary in the such Asset Sale having an aggregate fair market value, Fair Market Value (as determined in good faith by the Board of the CompanyEPE Holdings), taken together with all other Designated Noncash Non-cash Consideration received pursuant to this clause Section 4.06(a)(iv) that is at that time outstanding, not to exceed the greater of:
(1) $10,000,000; and
(2) 15of 4% of Adjusted Consolidated Net Tangible Assets and $300.0 million at the time of the receipt of such Designated Noncash Non-cash Consideration (with the fair market value Fair Market Value of each item of such Designated Noncash Non-cash Consideration being measured at the time received and without giving effect to subsequent changes in value), shall be deemed to be Cash Equivalents for the purposes of this Section 4.06(a).
(b) Within 395 days after EPE Holdings’ or any Restricted Subsidiary’s receipt of the Net Proceeds of any Asset Sale, EPE Holdings or such Restricted Subsidiary may apply the Net Proceeds from such Asset Sale, at its option:
(i) to repay (A) Indebtedness that is secured by a Lien permitted under this Indenture (and, if the Indebtedness repaid is revolving credit Indebtedness, to 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 an Issuer or any Subsidiary Guarantor shall so reduce Obligations under unsecured Pari Passu Indebtedness, the Issuers will equally and ratably reduce Obligations under the Notes pursuant to Section 3.01, through open-market purchases (provided that such purchases are at or above 100% of the principal amount thereof or, in the event that the Notes were issued with significant original issue discount, 100% of the accreted value thereof) or by making an offer (in accordance with the procedures set forth below for an Asset Sale Offer) to all holders to purchase at a purchase price equal to 100% of the principal amount thereof (or, in the event that the Notes were issued with significant original issue discount, 100% of the accreted value thereof), plus accrued and unpaid interest, if any, the pro rata principal amount of Notes, in each case other than Indebtedness owed to EPE Holdings or an Affiliate of EPE Holdings; provided, however, that if an offer to repay or repurchase any Indebtedness of any Restricted Subsidiary is made in accordance with the terms of such Indebtedness, the obligation to permanently repay Indebtedness of a Restricted Subsidiary shall be deemed to be satisfied to the extent of the amount of the offer, whether or not accepted by the holders thereof, and no Excess Proceeds in the amount of such offer will be deemed to exist following such offer;
(ii) If the Company to make an Investment in any one or any Restricted Subsidiary engages in an Asset Sale, the Company may, at its option, within 12 months after such Asset Sale, more businesses (1) apply all or a portion of the Net Cash Proceeds to the permanent reduction of amounts outstanding under the Credit Agreement (and to correspondingly reduce the commitments, if any, with respect thereto) or to the permanent repayment of other Senior Indebtedness of the Company or a Restricted Subsidiary, provided that if such Investment is in the repayment form of any Indebtedness incurred under the Credit Agreement in connection with the acquisition of any Facility with the proceeds Capital Stock of any subsequent Sale and Leaseback Transaction relating to a Person, such Facility shall not be required to result acquisition results in the permanent reduction such Person becoming a Restricted Subsidiary of the amounts outstanding under the Credit Agreement or correspondingly permanently reduce the commitments thereunderEPE Holdings), assets, or property or capital expenditures, in each case (2A) invest used or useful in a Similar Business or (or enter into a legally binding agreement to investB) all or a portion of such Net Cash Proceeds in properties and assets to that replace the properties and assets that were are the subject of the Asset Sale or in properties and assets that will be used in the businesses of the Company or its Restricted Subsidiaries, as the case may be, existing on the Closing Date or in businesses the same, similar or reasonably related thereto. If any such legally binding agreement to invest such Net Cash Proceeds is terminated, the Company may, within 90 days of such termination or within 12 months of such Asset Sale; or
(iii) to invest in Additional Assets. In the case of Section 4.06(b)(ii), whichever is later, invest 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 Cash Proceeds; provided that in the event such binding commitment is later canceled or terminated for any reason before such Net Proceeds as provided in clause are so applied, then such Net Proceeds shall constitute Excess Proceeds unless EPE Holdings or such Restricted Subsidiary enters into another binding commitment (1a “Second Commitment”) within six months of such cancellation or (2) (without regard termination of the prior binding commitment; provided, further, that EPE 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 parenthetical contained in extent such clause (2)) aboveSecond Commitment is later cancelled or terminated for any reason before such Net Proceeds are applied or are not applied within 180 days of such Second Commitment, then such Net Proceeds shall constitute Excess Proceeds. Pending the final application of any such Net Cash Proceeds, the Company EPE Holdings or such Restricted Subsidiary may temporarily reduce Indebtedness under a revolving credit borrowings facility, if any, or otherwise invest such Net Cash Proceeds in a any manner that is not prohibited by this AgreementIndenture. The amount Any Net Proceeds from any Asset Sale that are not applied as provided and within the time period set forth in the first sentence of this Section 4.06(b) (it being understood that any portion of such Net Cash Proceeds not so used as set forth above in this paragraph shall constitute "Excess Proceeds."
(c) When the aggregate amount of Excess Proceeds exceeds $10,000,000, the Company will, within 30 days thereafter, to make an offer to purchase Notes, as described in clause (an "Excess Proceeds Offer") from all Holders of Notes on a pro rata basis, in accordance with the procedures set forth in this Agreement, the maximum principal amount (expressed as a multiple of $1,000) of Notes that may be purchased with the Excess Proceeds, at a purchase price in cash equal to 100% of the principal amount thereof, plus accrued interest, if any, to the date such offer to purchase is consummated. To the extent that the aggregate principal amount of Notes tendered pursuant to such offer to purchase is less than the Excess Proceeds, the Company may use such deficiency for general corporate purposes. If the aggregate principal amount of Notes validly tendered and not withdrawn by holders thereof exceeds the Excess Proceeds, the Notes to be purchased will be selected on a pro rata basis. Upon completion of such offer to purchase, the amount of Excess Proceeds will be reset to zero.
(iii) 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 Excess Proceeds Offer. To the extent that the provisions of any securities laws or regulations conflict with the Asset Sales provisions of this Agreement, the Company will comply with the applicable securities laws and regulations and will not be deemed to have breached its obligations under Section 5(ji) of this Agreement by virtue of such conflict.Section
Appears in 1 contract
Samples: Indenture (EP Energy Corp)
Asset Sales. (ia) The Company shall not, and shall not permit any of its Restricted Subsidiary Subsidiaries to, engage consummate an Asset Sale unless:
(i) the Company (or the Restricted Subsidiary, as the case may be) receives consideration at the time of such Asset Sale at least equal to the Fair Market Value of the assets or Equity Interests issued or sold or otherwise disposed of;
(ii) such Fair Market Value is determined in good faith by (a) the chief executive officer or chief financial officer of the Company, in the case of any Asset Sale unless Sales or series of related Asset Sales having a Fair Market Value of less than $35.0 million, and (xb) the Board of Directors of the Company and evidenced by a resolution of the Board of Directors of the Company set forth in an Officers’ Certificate delivered to the Trustee, in the case of any Asset Sales or series of related Asset Sales having a Fair Market Value of $35.0 million or more; and
(iii) at least 75% of the consideration therefor received by the Company or such Restricted Subsidiary for such Asset Sale is not less than in the fair market value form of the assets sold evidenced by a resolution of the board of directors of such entity set forth in an Officers' Certificate delivered to the Holders and (y) the consideration received by the Company or the relevant Restricted Subsidiary in respect of such Asset Sale consists of at least 75% cash or cash, Cash Equivalents (for or Replacement Assets or a combination thereof. For purposes of this clause (ySection 4.10(a)(iii), cash and Cash Equivalents includes each of the following shall be deemed to be cash:
(A) any liabilities (as reflected in shown on the Company's consolidated or such Restricted Subsidiary's most recent balance sheet) of the Company or any Restricted Subsidiary (other than contingent liabilities and liabilities, liabilities that are by their terms subordinated to the Notes or any GuaranteeNote Guarantee and liabilities to the extent owed to the Company or any Affiliate of the Company) that are assumed by any the transferee of any such assets or other property in such Asset Sale, and where pursuant to a customary written agreement that releases the Company or the relevant such Restricted Subsidiary is released from any further liability in connection therewith with respect to such liabilities, liability; and
(B) any securities, notes or other similar obligations received by the Company or any such Restricted Subsidiary from such transferee that are converted within 180 days of the consummation of the related Asset Sale (subject to ordinary settlement periods) converted by the Company or such Restricted Subsidiary into cash and Cash Equivalents (to the extent of the net cash proceeds or the Cash Equivalents (net of related costs) received upon such in that conversion) and (C) any Designated Noncash Consideration received by the Company or any such Restricted Subsidiary in the Asset Sale having an aggregate fair market value, as determined by the Board of the Company, taken together with all other Designated Noncash Consideration received pursuant to this clause that is at that time outstanding, not to exceed the greater of:
(1) $10,000,000; and
(2) 15% of Consolidated Tangible Assets at the time of the receipt of such Designated Noncash Consideration (with the fair market value of each item of such Designated Noncash Consideration being measured at the time received and without giving effect to subsequent changes in value).
(iib) If Within 360 days after the Company or receipt of any Restricted Subsidiary engages in Net Proceeds from an Asset Sale, the Company may, may apply such Net Proceeds at its option, within 12 months after such Asset Sale, :
(1i) apply all or a portion of the Net Cash Proceeds to the permanent reduction of amounts outstanding repay Indebtedness under the Credit Agreement (and Facilities or other Unsubordinated Indebtedness, in each case, secured by such assets, or Indebtedness Incurred under Section 4.09(b)(i), and, if the Indebtedness repaid is revolving credit Indebtedness, to correspondingly reduce the commitments, if any, commitments with respect thereto;
(ii) or to the permanent repayment of other Senior Indebtedness of the Company or a Restricted Subsidiary, provided that the repayment of any Indebtedness incurred under the Credit Agreement in connection with the acquisition of any Facility with the proceeds of any subsequent Sale and Leaseback Transaction relating to such Facility shall not be required to result in the permanent reduction of the amounts outstanding under the Credit Agreement or correspondingly permanently reduce the commitments thereunder, or (2) invest purchase Replacement Assets (or enter into a legally binding agreement to investpurchase such Replacement Assets; provided that (x) all or a portion such purchase is consummated no later than the later of (i) the 360th day after such Net Cash Proceeds in properties and assets to replace the properties and assets that were the subject of the Asset Sale or in properties and assets that will be used in the businesses of the Company or its Restricted Subsidiaries, as the case may be, existing on the Closing Date or in businesses the same, similar or reasonably related thereto. If any such legally binding agreement to invest such Net Cash Proceeds is terminated, the Company may, (ii) within 90 days after the date of such termination or binding agreement and (y) if such purchase is not consummated within 12 months of such Asset Salethe period set forth in subclause (x), whichever is later, invest the Net Proceeds not so applied will be deemed to be Excess Proceeds (as defined in Section 4.10(c))); or
(iii) to apply such Net Cash Proceeds (to the extent not applied pursuant to clauses (i) and (ii)) as provided in clause (1) or (2) (without regard to the parenthetical contained in such clause (2Section 4.10(c)) above. Pending the final application of any such Net Cash Proceeds, the Company may temporarily reduce revolving credit borrowings or otherwise invest such Net Cash Proceeds in a any manner that is not prohibited by this Agreement. The amount of such Net Cash Proceeds not so used as set forth above in this paragraph shall constitute "Excess ProceedsIndenture."
(c) When Any Net Proceeds from Asset Sales that are not applied or invested as provided in Section 4.10(b) above shall constitute “Excess Proceeds.” Within 30 days after the aggregate amount of Excess Proceeds exceeds $10,000,00020.0 million, the Company will, within 30 days thereafter, shall make an offer to purchase (an "Excess Proceeds “Asset Sale Offer"”) from to all Holders of Notes on a pro rata basis, in accordance with the procedures and all holders of other Unsubordinated Indebtedness containing provisions similar to those set forth in this AgreementIndenture with respect to offers to purchase with the proceeds of sales of assets, to purchase the maximum principal amount (expressed as a multiple of $1,000) of Notes and such other Unsubordinated Indebtedness that may be purchased with out of the Excess Proceeds, at a purchase . The offer price in cash any Asset Sale Offer shall be equal to 100% of the principal amount thereof, plus accrued interestand unpaid interest and Liquidated Damages, if any, to the date such offer to purchase is consummatedof purchase, and shall be payable in cash. To the extent that the aggregate principal amount If any Excess Proceeds remain after consummation of Notes tendered pursuant to such offer to purchase is less than the Excess Proceedsan Asset Sale Offer, the Company may use such deficiency Excess Proceeds for general corporate purposesany purpose not otherwise prohibited by this Indenture. If the aggregate principal amount of Notes validly and such other Unsubordinated Indebtedness tendered and not withdrawn by holders thereof into such Asset Sale Offer exceeds the amount of Excess Proceeds, the Notes and such other Unsubordinated Indebtedness to be purchased will shall be selected on a pro rata basisbasis based on the principal amount of Notes and such other pari passu Indebtedness tendered. Upon completion of such offer to purchaseeach Asset Sale Offer, the amount of Excess Proceeds will shall be reset to at zero.
(iii) 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 Excess Proceeds Offer. To the extent that the provisions of any securities laws or regulations conflict with the Asset Sales provisions of this Agreement, the Company will comply with the applicable securities laws and regulations and will not be deemed to have breached its obligations under Section 5(j) of this Agreement by virtue of such conflict.
Appears in 1 contract
Samples: Indenture (Texas Industries Inc)
Asset Sales. (i) The Company shall not, and shall not permit any of its Restricted Subsidiary Subsidiaries to: (i) sell, engage lease, convey or otherwise dispose of any assets or rights (including by way of a sale-and-leaseback) other than sales of inventory in the ordinary course of business (provided that the sale, lease, conveyance or other distribution of all or substantially all of the assets of the Company and its Restricted Subsidiaries, taken as a whole, shall be governed by the provisions of Sections 4.14 and 5.01 hereof), or (ii) with respect to the Company, issue Equity Interests in any of its Subsidiaries, or (iii) with respect to the Company's Restricted Subsidiaries, issue Equity Interests (each of the foregoing, an "Asset Sale Sale"), unless (x) the Company (or the Restricted Subsidiary, as the case may be) receives consideration received by at the Company or such Restricted Subsidiary for time of such Asset Sale is not less than at least equal to the fair market value of the assets sold (evidenced by a resolution of the board Board of directors of such entity Directors set forth in an Officers' Certificate delivered to the Holders Trustee) of the assets sold or otherwise disposed of and (y) the consideration received by the Company or the relevant Restricted Subsidiary in respect of such Asset Sale consists of at least 75% cash or Cash Equivalents (for purposes of this clause (y), cash and Cash Equivalents includes (A) any liabilities (as reflected in the Company's consolidated balance sheet) of the Company or any Restricted Subsidiary (other than contingent liabilities and liabilities that are by their terms subordinated to the Notes or any Guarantee) that are assumed by any transferee of any such assets or other property in such Asset Sale, and where the Company or the relevant Restricted Subsidiary is released from any further liability in connection therewith with respect to such liabilities, (B) any securities, notes or other similar obligations consideration received by the Company or any such Restricted Subsidiary from such transferee that are converted within 180 days of the consummation of the related Asset Sale therefor by the Company or such Restricted Subsidiary into is in the form of cash and Cash Equivalents or other Qualified Proceeds. Notwithstanding the foregoing, the following shall not be deemed to be Asset Sales: (to the extent of the net cash proceeds i) any single transaction or the Cash Equivalents (net series of related coststransactions that (a) received upon such conversion) and (C) any Designated Noncash Consideration received by the Company or any such Restricted Subsidiary in the Asset Sale involves assets having an aggregate fair market value, as determined by the Board of the Company, taken together with all other Designated Noncash Consideration received pursuant to this clause that is at that time outstanding, not to exceed the greater of:
(1) $10,000,000; and
(2) 15% of Consolidated Tangible Assets at the time of the receipt of such Designated Noncash Consideration (with the a fair market value of each item less than $2.0 million or (b) results in net proceeds to the Company and its Restricted Subsidiaries of such Designated Noncash Consideration being measured at the time received and without giving effect to subsequent changes in value).
less than $2.0 million, (ii) If a transfer of assets between or among the Company and any Restricted Subsidiary, (iii) an issuance of Equity Interests by a Restricted Subsidiary to the Company or to another Wholly Owned Restricted Subsidiary, (iv) the sale, lease, conveyance or other disposition of any Receivable Program Assets by the Company or any Restricted Subsidiary engages in an connection with a Receivables Program, (v) the sale, lease, conveyance or other disposition of any inventory, receivables or other current assets by the Company or any of its Restricted Subsidiaries in the ordinary course of business, (vi) the granting of a Permitted Lien, (vi) the licensing by the Company or any Restricted Subsidiary of intellectual property in the ordinary course of business or on commercially reasonable terms, (vii) the sale, lease, conveyance or other disposition of obsolete or worn out equipment or equipment no longer useful in the Company's business, and (viii) the making or liquidating of any Restricted Payment or Permitted Investment that is permitted by Section 4.07 hereof. Within 365 days after the receipt of any Net Proceeds from any Asset Sale, the Company may(or such Restricted Subsidiary) may apply such Net Proceeds from such Asset Sale, at its option, within 12 months after either (a) to repay Permitted Bank Debt, and if such Asset SalePermitted Bank Debt is revolving debt, to effect a corresponding commitment reduction thereunder, (1b) apply to acquire all or a portion substantially all of the Net Cash Proceeds to the permanent reduction of amounts outstanding under the Credit Agreement (and to correspondingly reduce the commitmentsassets of, if any, with respect thereto) or to the permanent repayment of other Senior Indebtedness a majority of the Company or Voting Stock of, another Permitted Business, (c) to make a Restricted Subsidiary, provided that the repayment of any Indebtedness incurred under the Credit Agreement in connection with the acquisition of any Facility with the proceeds of any subsequent Sale and Leaseback Transaction relating to such Facility shall not be required to result in the permanent reduction of the amounts outstanding under the Credit Agreement or correspondingly permanently reduce the commitments thereundercapital expenditure, or (2d) invest (or enter into a legally binding agreement to invest) all or a portion of such Net Cash Proceeds in properties and assets to replace the properties and acquire any other long-term assets that were the subject of the Asset Sale are used or useful in properties and assets that will be used in the businesses of the Company or its Restricted Subsidiaries, as the case may be, existing on the Closing Date or in businesses the same, similar or reasonably related thereto. If any such legally binding agreement to invest such Net Cash Proceeds is terminated, the Company may, within 90 days of such termination or within 12 months of such Asset Sale, whichever is later, invest such Net Cash Proceeds as provided in clause (1) or (2) (without regard to the parenthetical contained in such clause (2)) abovea Permitted Business. Pending the final application of any such Net Cash Proceeds, the Company (or such Restricted Subsidiary) may temporarily reduce revolving credit borrowings or otherwise invest such Net Cash Proceeds in a any manner that is not prohibited by this AgreementIndenture. The amount Any Net Proceeds from such Asset Sale that are not finally applied or invested as provided in the first sentence of such Net Cash Proceeds not so used as set forth above in this paragraph shall will be deemed to constitute "Excess Proceeds."
(c) When " Within five days of each date on which the aggregate amount of Excess Proceeds exceeds $10,000,00010 million, the Company will, within 30 days thereafter, make an offer to purchase (an "Excess Proceeds Offer") from all Holders of Notes on shall commence a pro rata basisAsset Sale Offer pursuant to Section 3.09 hereof to purchase the maximum principal amount of Notes that may be purchased out of the Excess Proceeds at an offer price in cash in an amount equal to 100% of the principal amount thereof plus accrued and unpaid interest and Liquidated Damages thereon, if any, to the date fixed for the closing of such offer, in accordance with the procedures set forth in this Agreement, the maximum principal amount (expressed as a multiple of $1,000) of Notes that may be purchased with the Excess Proceeds, at a purchase price in cash equal to 100% of the principal amount thereof, plus accrued interest, if any, to the date such offer to purchase is consummatedSection 3.09 hereof. To the extent that the aggregate principal amount of Notes tendered pursuant to such offer to purchase an Asset Sale Offer is less than the Excess Proceeds, the Company may use (or such deficiency for general corporate purposes. If the aggregate principal amount of Notes validly tendered and not withdrawn by holders thereof exceeds the Excess Proceeds, the Notes to be purchased will be selected on a pro rata basis. Upon completion of such offer to purchase, the amount of Excess Proceeds will be reset to zero.
(iiiSubsidiary) 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 Excess Proceeds Offer. To the extent that the provisions of any securities laws or regulations conflict with the Asset Sales provisions of this Agreement, the Company will comply with the applicable securities laws and regulations and will not be deemed to have breached its obligations under Section 5(j) of this Agreement by virtue of such conflict.may
Appears in 1 contract
Samples: Indenture (Amkor Technology Inc)
Asset Sales. (a) The Company will not, and will not permit any of its Subsidiaries to, consummate an Asset Sale unless:
(i) The Company shall not, and shall not permit any Restricted Subsidiary to, engage in at the time of any Asset Sale, no Default or Event of Default shall exist or shall result from such Asset Sale;
(ii) the Company (or the Subsidiary, as the case may be) receives consideration at the time of the Asset Sale unless at least equal to the Fair Market Value (xmeasured as of the date of the definitive agreement with respect to such Asset Sale) of the assets or Equity Interests issued or sold or otherwise disposed of; and
(iii) at least 75% of the consideration received in the Asset Sale by the Company or such Restricted Subsidiary for such Asset Sale is not less than in the fair market value form of the assets sold evidenced by a resolution of the board of directors of such entity set forth in an Officers' Certificate delivered to the Holders and (y) the consideration received by the Company or the relevant Restricted Subsidiary in respect of such Asset Sale consists of at least 75% cash or Cash Equivalents (for Equivalents. For purposes of this clause (yiii), cash and Cash Equivalents includes each of the following will be deemed to be cash:
(A1) any liabilities (as reflected in the Company's consolidated balance sheet) of the Company or any Restricted Subsidiary as shown on the Company’s or such Subsidiary’s most recent consolidated balance sheet (other than contingent liabilities and liabilities that are by their terms subordinated to the Notes or any GuaranteeNotes) that are assumed by any the transferee of any such assets (or a third party on behalf of such transferee) pursuant to a customary novation or other property in such Asset Sale, and where agreement that releases the Company or the relevant Restricted such Subsidiary is released from any further liability in connection therewith with respect to such liabilities, liability;
(B2) any securities, notes or other similar obligations or assets received by the Company or any such Restricted Subsidiary from such transferee that are converted by the Company or such Subsidiary into cash within 180 days of the consummation of the related Asset Sale by the Company or such Restricted Subsidiary into cash and Cash Equivalents (receipt thereof, to the extent of the net cash proceeds or received in that conversion;
(3) the Cash Equivalents (net of related costs) received upon such conversion) and (C) any Designated Noncash Consideration received by the Company assets of, or any Capital Stock of, another Permitted Business, if, after giving effect to any such Restricted acquisition of Capital Stock, the Permitted Business is or becomes a Subsidiary in the Asset Sale having an aggregate fair market value, as determined by the Board of the Company, taken together with all other Designated Noncash Consideration received pursuant to this clause that is at that time outstanding, not to exceed the greater of:
(1) $10,000,000; and
(24) 15% of Consolidated Tangible Assets at the time of assets that are used or useful in a Permitted Business.
(b) Within 365 days after the receipt of such Designated Noncash Consideration (with the fair market value of each item of such Designated Noncash Consideration being measured at the time received and without giving effect to subsequent changes in value).
(ii) If the Company or any Restricted Subsidiary engages in Net Proceeds from an Asset Sale, the Company may, at its option, within 12 months after such Asset Sale, (1) apply all or a portion of the Net Cash Proceeds to the permanent reduction of amounts outstanding under the Credit Agreement (and to correspondingly reduce the commitments, if any, with respect thereto) or to the permanent repayment of other Senior Indebtedness of the Company or a Restricted applicable Subsidiary, provided that the repayment of any Indebtedness incurred under the Credit Agreement in connection with the acquisition of any Facility with the proceeds of any subsequent Sale and Leaseback Transaction relating to such Facility shall not be required to result in the permanent reduction of the amounts outstanding under the Credit Agreement or correspondingly permanently reduce the commitments thereunder, or (2) invest (or enter into a legally binding agreement to invest) all or a portion of such Net Cash Proceeds in properties and assets to replace the properties and assets that were the subject of the Asset Sale or in properties and assets that will be used in the businesses of the Company or its Restricted Subsidiaries, as the case may be, existing on the Closing Date or in businesses the same, similar or reasonably related thereto. If any such legally binding agreement to invest may apply such Net Cash Proceeds is terminatedat its option, in any combination of the Company mayfollowing:
(i) to prepay, within 90 days repay, repurchase, redeem or defease (i) any Indebtedness of such termination or within 12 months of such Asset Sale, whichever is later, invest such Net Cash Proceeds as provided in clause (1) any Subsidiary or (2ii) (without regard to the parenthetical contained in such clause (2)) above. Pending the final application of any such Net Cash ProceedsNotes through redemptions, the Company may temporarily reduce revolving credit borrowings open-market purchases, privately negotiated transactions or otherwise invest such Net Cash Proceeds in a manner that is not prohibited by this Agreement. The amount of such Net Cash Proceeds not so used as set forth above in this paragraph shall constitute "Excess Proceeds."
(c) When the aggregate amount of Excess Proceeds exceeds $10,000,000, the Company will, within 30 days thereafter, make making an offer to purchase (an "Excess Proceeds Offer") from all Holders of Notes on a pro rata basis, Asset Sale Offer in accordance with the procedures set forth in this AgreementSection 8.1(a);
(ii) 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 maximum principal amount (expressed as Permitted Business is or becomes a multiple of $1,000) of Notes that may be purchased with the Excess Proceeds, at a purchase price in cash equal to 100% Subsidiary of the principal amount thereof, plus accrued interest, if any, Company; or
(iii) to acquire or invest in other assets that are used or useful in a Permitted Business or to make capital expenditures. Pending the date such offer to purchase is consummated. To the extent that the aggregate principal amount final application of Notes tendered pursuant to such offer to purchase is less than the Excess any Net Proceeds, the Company or the applicable Subsidiary, as the case may use such deficiency for general corporate purposes. If the aggregate principal be, may temporarily reduce revolving credit borrowings.
(c) The amount of Notes validly tendered and any Net Proceeds from Asset Sales that are not withdrawn by holders thereof exceeds the applied or invested within 365 days as provided in clause (b) above shall constitute “Excess Proceeds, the Notes to ” and shall be purchased will be selected on a pro rata basisapplied in accordance with Section 8.1(a). Upon completion of such offer each Asset Sale Offer pursuant to purchaseSection 8.1(a), the amount of Excess Proceeds will be reset to at zero.
(iii) 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 Excess Proceeds Offer. To the extent that the provisions of any securities laws or regulations conflict with the Asset Sales provisions of this Agreement, the Company will comply with the applicable securities laws and regulations and will not be deemed to have breached its obligations under Section 5(j) of this Agreement by virtue of such conflict.
Appears in 1 contract
Samples: Note and Warrant Exchange Agreement (Kingstone Companies, Inc.)
Asset Sales. (i) The Company shall not, and shall not permit any of its Restricted Subsidiary Subsidiaries to: (i) sell, engage lease, convey or otherwise dispose of any assets (including, without limitation, by way of a sale-and-leaseback) other than sales of inventory and other current assets in any Asset Sale unless the ordinary course of business (xprovided that the sale, lease, conveyance or other disposition of all or substantially all of the assets of the Company and its Restricted Subsidiaries taken as a whole shall be governed by the provisions of Sections 4.15 and 5.01 hereof), or (ii) the consideration received by issue of Equity Interests of any of the Company Company's Restricted Subsidiaries or such sale of Equity Interests of any of the Company's Restricted Subsidiary for such Asset Sale is not less than Subsidiaries, in the case of either clause (i) or (ii) above, whether in a single transaction or a series of related transactions, (a) that have a fair market value in excess of $1,000,000 or (b) for net proceeds in excess of $500,000 (each of the foregoing, an "Asset Sale"). Notwithstanding the foregoing: (i) a transfer of assets sold evidenced by any Person to a Restricted Subsidiary of such Person, or by a resolution Restricted Subsidiary of the board of directors any Person to such Person or to another Restricted Subsidiary of such entity set forth in Person; (ii) an Officers' Certificate delivered issuance of Equity Interests by a Restricted Subsidiary of any Person to the Holders such Person or to another Restricted Subsidiary of such Person; and (yiii) the consideration received a Restricted Payment that is permitted by the Company or the relevant Restricted Subsidiary in respect of such Section 4.07 will not be deemed to be Asset Sale consists of at least 75% cash or Cash Equivalents (for purposes of this clause (y), cash and Cash Equivalents includes (A) any liabilities (as reflected in the Company's consolidated balance sheet) of the Company or any Restricted Subsidiary (other than contingent liabilities and liabilities that are by their terms subordinated to the Notes or any Guarantee) that are assumed by any transferee of any such assets or other property in such Asset Sale, and where the Company or the relevant Restricted Subsidiary is released from any further liability in connection therewith with respect to such liabilities, (B) any securities, notes or other similar obligations received by the Company or any such Restricted Subsidiary from such transferee that are converted within Sales. Within 180 days of the consummation of the related Asset Sale by the Company or such Restricted Subsidiary into cash and Cash Equivalents (to the extent of the net cash proceeds or the Cash Equivalents (net of related costs) received upon such conversion) and (C) any Designated Noncash Consideration received by the Company or any such Restricted Subsidiary in the Asset Sale having an aggregate fair market value, as determined by the Board of the Company, taken together with all other Designated Noncash Consideration received pursuant to this clause that is at that time outstanding, not to exceed the greater of:
(1) $10,000,000; and
(2) 15% of Consolidated Tangible Assets at the time of after the receipt of such Designated Noncash Consideration (with the fair market value of each item of such Designated Noncash Consideration being measured at the time received and without giving effect to subsequent changes in value).
(ii) If the Company or any Restricted Subsidiary engages in Net Proceeds from an Asset Sale, the Company may, at its option, within 12 months after or such Asset Sale, (1) apply all or a portion of the Net Cash Proceeds to the permanent reduction of amounts outstanding under the Credit Agreement (and to correspondingly reduce the commitments, if any, with respect thereto) or to the permanent repayment of other Senior Indebtedness of the Company or a Restricted Subsidiary, provided that the repayment of any Indebtedness incurred under the Credit Agreement in connection with the acquisition of any Facility with the proceeds of any subsequent Sale and Leaseback Transaction relating to such Facility shall not be required to result in the permanent reduction of the amounts outstanding under the Credit Agreement or correspondingly permanently reduce the commitments thereunder, or (2) invest (or enter into a legally binding agreement to invest) all or a portion of such Net Cash Proceeds in properties and assets to replace the properties and assets that were the subject of the Asset Sale or in properties and assets that will be used in the businesses of the Company or its Restricted Subsidiaries, as the case may be, existing on the Closing Date or in businesses the same, similar or reasonably related thereto. If any such legally binding agreement to invest may apply such Net Cash Proceeds is terminated, the Company may, within 90 days of such termination or within 12 months of from such Asset Sale, whichever at its option, either, (i) reduce Indebtedness (and to correspondingly reduce commitments with respect to any revolving credit facility) such that the Debt to Cash Flow Ratio after such Asset Sale is laterlower than before such Asset Sale or (ii) to acquire, invest or cause a Restricted Subsidiary to acquire, assets useful to its business. Any Net Proceeds from such Net Cash Proceeds Asset Sale, other than Equity Interests or debt securities issued by a Person which has Investment Grade Senior Debt) that are not applied or invested as provided in clause (1) or (2) (without regard to the parenthetical contained in such clause (2)) above. Pending the final application first sentence of any such Net Cash Proceeds, the Company may temporarily reduce revolving credit borrowings or otherwise invest such Net Cash Proceeds in a manner that is not prohibited by this Agreement. The amount of such Net Cash Proceeds not so used as set forth above in this paragraph shall will be deemed to constitute "Excess Proceeds."
(c) When " Within five days of each date on which the aggregate amount of Excess Proceeds exceeds $10,000,0005 million, the Company will, within 30 days thereafter, make an offer to purchase (an "Excess Proceeds Offer") from all Holders of Notes on shall commence a pro rata basisAsset Sale Offer pursuant to Section 3.09 hereof to purchase the maximum principal amount of Senior 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 on the date fixed for the closing of such offer plus accrued and unpaid interest and Liquidated Damages, if any, thereon as of the date of purchase in accordance with the procedures set forth in this Agreement, the maximum principal amount (expressed as a multiple of $1,000) of Notes that may be purchased with the Excess Proceeds, at a purchase price in cash equal to 100% of the principal amount thereof, plus accrued interest, if any, to the date such offer to purchase is consummatedSection 3.09 hereof. To the extent that the aggregate principal amount of Senior Notes tendered pursuant to such offer to purchase an Asset Sale Offer is less than the amount that may be purchased from Excess Proceeds, the Company may use such deficiency any remaining Excess Proceeds for general corporate purposes. If the aggregate principal amount of Notes validly tendered and not withdrawn by holders thereof exceeds the Excess Proceeds, the Notes to be purchased will be selected on a pro rata basis. Upon completion of such offer to purchase, the amount of Excess Proceeds will be deemed to be reset to at zero.
(iii) 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 Excess Proceeds Offer. To the extent that the provisions of any securities laws or regulations conflict with the Asset Sales provisions of this Agreement, the Company will comply with the applicable securities laws and regulations and will not be deemed to have breached its obligations under Section 5(j) of this Agreement by virtue of such conflict.
Appears in 1 contract
Asset Sales. (ia) The Company shall not, and shall not permit any of the Restricted Subsidiary Subsidiaries to, engage in any cause or make an Asset Sale Sale, unless (x) the Company or 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 in good faith by the Company) of the assets sold or otherwise disposed of, and (y) at least 75% of the consideration therefor received by the Company or such Restricted Subsidiary for such Asset Sale Subsidiary, as the case may be, is not less than in the fair market value form of Cash Equivalents; provided that the assets sold evidenced by a resolution of the board of directors of such entity set forth in an Officers' Certificate delivered to the Holders and amount of:
(y) the consideration received by the Company or the relevant Restricted Subsidiary in respect of such Asset Sale consists of at least 75% cash or Cash Equivalents (for purposes of this clause (y), cash and Cash Equivalents includes (Ai) any liabilities (as reflected shown on the Company’s or a Restricted Subsidiary’s most recent balance sheet or in the Company's consolidated balance sheetnotes thereto) of the Company or any a Restricted Subsidiary (other than contingent liabilities and liabilities that are by their terms subordinated to the Notes or any Guarantee) that are assumed by any the transferee of any such assets or other property in such Asset Sale, and where the Company that are otherwise cancelled or the relevant Restricted Subsidiary is released from any further liability terminated in connection therewith with respect to the transaction with such liabilities, transferee,
(Bii) any securities, notes or other similar obligations or other securities or assets received by the Company or any such Restricted Subsidiary from such transferee that are converted within 180 days of the consummation of the related Asset Sale by the Company or such Restricted Subsidiary into cash and Cash Equivalents within 180 days of the receipt thereof (to the extent of the net cash proceeds or received),
(iii) Indebtedness of any Restricted Subsidiary that is no longer a Restricted Subsidiary as a result of such Asset Sale, to the Cash Equivalents extent that the Company and each other Restricted Subsidiary are released from any guarantee of payment of such Indebtedness in connection with the Asset Sale,
(net iv) consideration consisting of related costsIndebtedness of the Company (other than Subordinated Indebtedness) received upon such conversion) and after the Issue Date from Persons who are not the Company or any Restricted Subsidiary, and
(Cv) any Designated Noncash Non-cash Consideration received by the Company or any such Restricted Subsidiary in the such Asset Sale having an aggregate fair market value, Fair Market Value (as determined in good faith by the Board of the Company), taken together with all other Designated Noncash Non-cash Consideration received pursuant to this clause Section 4.06(a)(v) that is at that time outstanding, not to exceed the greater of:
(1) of $10,000,000; and
(2) 15400 million and 25% of Consolidated Tangible Assets EBITDA at the time of the receipt of such Designated Noncash Non-cash Consideration (with the fair market value Fair Market Value of each item of such Designated Noncash Non-cash Consideration being measured at the time received and without giving effect to subsequent changes in value), shall be deemed to be Cash Equivalents for the purposes of this Section 4.06(a).
(iib) If Within 365 days after the Company Company’s or any Restricted Subsidiary engages in an Subsidiary’s receipt of the Net Proceeds of any Asset Sale, the Company mayor such Restricted Subsidiary may apply the Net Proceeds from such Asset Sale, at its option:
(i) to repay (A) the Secured Notes, within 12 months after such Asset SaleIndebtedness constituting Bank Indebtedness and other Pari Passu Indebtedness that is secured by a Lien permitted under this Indenture (and, (1) apply all or a portion of if the Net Cash Proceeds to the permanent reduction of amounts outstanding under the Credit Agreement (and Indebtedness repaid is revolving credit Indebtedness, to correspondingly reduce the commitments, if any, commitments with respect thereto), (B) or to the permanent repayment of other Senior Indebtedness of a Restricted Subsidiary that is not a Guarantor, (C) Obligations under the Notes or (D) other Pari Passu Indebtedness (provided that if the Company or any Guarantor shall so reduce Obligations under unsecured Pari Passu Indebtedness under this clause (D), the Company will, on a Restricted Subsidiarypro rata basis, reduce Notes Obligations pursuant to Section 3.01, through open-market purchases (provided that such purchases are at or above 100% of the repayment principal amount thereof or, in the event that the Notes were issued with significant original issue discount, at or above 100% of the accreted value thereof) or by making an offer (in accordance with the procedures set forth below for an Asset Sale Offer) to all holders of the Notes to purchase such holder’s Notes at a purchase price at or above 100% of the principal amount thereof (or, in the event that the Notes were issued with significant original issue discount, at or above 100% of the accreted value thereof), plus accrued and unpaid interest), in each case other than Indebtedness owed to the Company or an Affiliate of the Company; or
(ii) to make an investment in any Indebtedness incurred under one or more businesses (provided that if such investment is in the Credit Agreement in connection with form of the acquisition of any Facility with the proceeds Capital Stock of any subsequent Sale and Leaseback Transaction relating to a Person, such Facility shall not be required to result acquisition results in the permanent reduction such Person becoming a Restricted Subsidiary of the amounts outstanding under the Credit Agreement or correspondingly permanently reduce the commitments thereunderCompany), assets, or property or capital expenditures, in each case (2A) invest used or useful in a Similar Business or (or enter into a legally binding agreement to investB) all or a portion of such Net Cash Proceeds in properties and assets to that replace the properties and assets that were 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 or in properties and assets 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 will be used in the businesses of event such binding commitment is later canceled or terminated for any reason before such Net Proceeds are so applied, then such Net Proceeds shall constitute Excess Proceeds unless the Company or its such Restricted SubsidiariesSubsidiary enters into another binding commitment (a “Second Commitment”) within six months of such cancellation or termination of the prior binding commitment; provided, as further, that the case Company or such Restricted Subsidiary may be, existing on only enter into a Second Commitment under the Closing Date foregoing provision one time with respect to each Asset Sale and to the extent such Second Commitment is later cancelled or in businesses the same, similar or reasonably related thereto. If terminated for any such legally binding agreement to invest reason before such Net Cash Proceeds is terminated, the Company may, are applied or are not applied within 90 180 days of such termination or within 12 months of such Asset SaleSecond Commitment, whichever is later, invest then such Net Cash Proceeds as provided shall constitute Excess Proceeds (in clause (1) or (2) (without regard each case subject to the parenthetical contained in such clause (2proviso to the first sentence of the second succeeding paragraph and to the third succeeding paragraph)) above. Pending the final application of any such Net Cash Proceeds, the Company or such Restricted Subsidiary may temporarily reduce Indebtedness under a revolving credit borrowings facility, if any, or otherwise invest such Net Cash Proceeds in a any manner that is not prohibited by this AgreementIndenture. The amount Any Net Proceeds from any Asset Sale that are not applied as provided and within the time period set forth in the first sentence of this Section 4.06(b) (it being understood that any portion of such Net Cash Proceeds used to make an offer to purchase the Notes, as described in clause (i) of this Section 4.06(b), shall be deemed to have been invested whether or not so used as set forth above in this paragraph such offer is accepted) will be deemed to constitute “Excess Proceeds”; provided, that no Net Proceeds which would otherwise constitute “Excess Proceeds” shall constitute "Excess Proceeds in any fiscal year until the aggregate amount of all such Net Proceeds in such fiscal year shall exceed $200 million (and thereafter only Net Proceeds in excess of such amount shall constitute Excess Proceeds."
(c) ). When the aggregate amount of Excess Proceeds exceeds $10,000,000100 million, the Company will, within 30 days thereafter, shall make an offer to purchase all holders of the Notes (and, at the option of the Company, to holders of any other Pari Passu Indebtedness) (an "“Asset Sale Offer”) to purchase the maximum principal amount of the 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 be purchased out of the Excess Proceeds Offer") from all Holders at an offer price in cash in an amount equal to 100% of the principal amount thereof (or, in the event the Notes on a pro rata basisor other Pari Passu Indebtedness were issued with significant original issue discount, 100% of the accreted value thereof), plus accrued and unpaid interest (or, in respect of such other Pari Passu Indebtedness, such lesser price, if any, as may be provided for by the terms of such other Pari Passu Indebtedness), to, but excluding, the date fixed for the closing of such offer, in accordance with the procedures set forth in this AgreementIndenture. The Company will commence an Asset Sale Offer with respect to Excess Proceeds within ten (10) Business Days after the date that Excess Proceeds exceeds $100 million by mailing, or delivering electronically if held by DTC, the maximum principal amount (expressed as a multiple of $1,000) of Notes that may be purchased with the Excess Proceeds, at a purchase price in cash equal to 100% of the principal amount thereof, plus accrued interest, if any, notice required pursuant to the date such offer terms of this Indenture, with a copy to purchase is consummatedthe Trustee. To the extent that the aggregate principal amount of the Notes (and such other Pari Passu Indebtedness) tendered pursuant to such offer to purchase an Asset Sale Offer is less than the Excess Proceedsaggregate principal amount of the Notes that the Company has offered to purchase pursuant to an Asset Sale Offer, the Company may use such deficiency any remaining Excess Proceeds for general corporate purposes. If the aggregate principal amount of Notes validly tendered and any purpose that is not withdrawn prohibited by holders thereof exceeds the Excess Proceeds, the Notes to be purchased will be selected on a pro rata basisthis Indenture. Upon completion of any such offer to purchaseAsset Sale Offer, the amount of Excess Proceeds will shall be reset to at zero.
(iiic) The Company will comply comply, to the extent applicable, with the requirements of Rule 14e-1 under Section 14(e) of the Exchange Act and any other securities laws and or regulations thereunder to the extent such laws and regulations are applicable in connection with each the repurchase of the Notes pursuant to an Excess Proceeds Asset Sale Offer. To the extent that the provisions of any securities laws or regulations conflict with the Asset Sales provisions of this AgreementIndenture, the Company will comply with the applicable securities laws and regulations and will shall not be deemed to have breached its obligations under described in this Indenture by virtue thereof.
(d) Not later than the date upon which written notice of an Asset Sale Offer is delivered to the Trustee as provided above, the Company shall deliver to the Trustee an Officers’ Certificate as to (i) the amount of the Excess Proceeds, (ii) the allocation of the Net Proceeds from the Asset Sales pursuant to which such Asset Sale Offer is being made and (iii) the compliance of such allocation with the provisions of Section 5(j4.06(b). On such date, the Company shall also irrevocably deposit with the Trustee or the Paying Agent (or, if the Company or a Subsidiary is acting as the Paying Agent, segregate and hold in trust) an amount equal to the Excess Proceeds to be invested in Cash Equivalents, as directed in writing by the Company and to be held for payment in accordance with the provisions of this Agreement Section 4.06. The Trustee shall have the right to open an account for purposes of receiving such Excess Proceeds. Upon the expiration of the period for which the Asset Sale Offer remains open (the “Offer Period”), the Company shall deliver to the Trustee for cancellation the Notes or portions thereof that have been properly tendered to and are to be accepted by virtue the Company. The Trustee (or the Paying Agent, if not the Trustee) shall, on the date of purchase, mail or deliver payment to each tendering holder in the amount of the purchase price. In the event that the Excess Proceeds delivered by the Company to the Trustee are greater than the purchase price of the Notes tendered, the Trustee shall deliver the excess to the Company immediately after the expiration of the Offer Period for application in accordance with this Section 4.06.
(e) Holders electing to have a Note purchased shall be required to surrender such Note, with an appropriate form duly completed, to the Company at the address specified in the notice at least three Business Days prior to the purchase date. Holders shall be entitled to withdraw their election if the Trustee or the Company receives not later than one Business Day prior to the purchase date, a telegram, telex, facsimile transmission or letter setting forth the name of the holder, the principal amount of the Note which was delivered by the holder for purchase and a statement that such holder is withdrawing his election to have such Note purchased. If more Notes (and such other Pari Passu Indebtedness) are tendered pursuant to an Asset Sale Offer than the Company is required to purchase, such Notes shall be selected for purchase in such manner as complies with the requirements of DTC; provided that no Notes of $2,000 or less shall be purchased in part and all purchases shall be in integral multiples of $1,000. Selection of such conflictother Pari Passu Indebtedness shall be made pursuant to the terms of such other Pari Passu Indebtedness.
(f) Notices of an Asset Sale Offer shall be mailed by the Company by first class mail, postage prepaid, or delivered electronically if held at DTC, at least 30 but not more than 60 days before the purchase date to each holder of the Notes at such holder’s registered address. If any Note is to be purchased in part only, any notice of purchase that relates to such Note shall state the portion of the principal amount thereof that has been or is to be purchased.
(g) Notwithstanding any other provisions of this Section 4.06, (i) to the extent that any of or all the Net Proceeds of any Asset Sale are received or deemed to be received by a Foreign Subsidiary (or a Domestic Subsidiary of a Foreign Subsidiary) (a “Foreign Disposition”) and give rise to a prepayment or repurchase event described above that is (x) prohibited, restricted or delayed by applicable local law, rule or regulation (including, without limitation, (a) financial assistance and corporate benefit restrictions and (b) fiduciary and statutory duties of any director or officer of such Subsidiaries), (y) restricted by applicable organizational documents or any agreement or (z) subject to other onerous organizational or administrative impediments, in each case, to being repatriated or otherwise paid to the Company or so prepaid, or if such repatriation or payment or prepayment would present a material risk of liability for the applicable Subsidiary or its directors or officers (or gives rise to a material risk of breach of fiduciary or statutory duties by any director or officer), an amount equal to the portion of such Net Proceeds so affected will not be required to be applied in compliance with this Section 4.06 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 an adverse tax consequence (which for the avoidance of doubt, includes, but is not limited to, any prepayment out of such Net Proceeds whereby doing so the Company, any of its Subsidiaries or any of their respective Affiliates and/or equity owners would incur a tax liability, including a taxable dividend) (as determined by the Company), an amount equal to the Net Proceeds so affected will not be required to be applied in compliance with this Section 4.06. The non-application of any prepayment or repurchase amounts as a consequence of the foregoing provisions will not, for the avoidance of doubt, constitute a Default or an Event of Default.
(h) This Section 4.06 shall not apply from and after the occurrence of a Fall-Away Event.
Appears in 1 contract
Samples: Indenture (XPO, Inc.)
Asset Sales. (ia) The Company shall not, and shall not permit any of the Restricted Subsidiary Subsidiaries to, engage in any cause or make an Asset Sale Sale, unless (x) the Company or 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 in good faith by the Company) of the assets sold or otherwise disposed of, and (y) at least 75% of the consideration therefor received by the Company or such Restricted Subsidiary for such Asset Sale Subsidiary, as the case may be, is not less than in the fair market value form of Cash Equivalents; provided that the assets sold evidenced by a resolution of the board of directors of such entity set forth in an Officers' Certificate delivered to the Holders and amount of:
(y) the consideration received by the Company or the relevant Restricted Subsidiary in respect of such Asset Sale consists of at least 75% cash or Cash Equivalents (for purposes of this clause (y), cash and Cash Equivalents includes (Ai) any liabilities (as reflected shown on the Company’s or a Restricted Subsidiary’s most recent balance sheet or in the Company's consolidated balance sheetnotes thereto) of the Company or any a Restricted Subsidiary (other than contingent liabilities and liabilities that are by their terms subordinated to the Notes or any Guarantee) that are assumed by any the transferee of any such assets or other property in such Asset Sale, and where the Company that are otherwise cancelled or the relevant Restricted Subsidiary is released from any further liability terminated in connection therewith with respect to the transaction with such liabilities, transferee,
(Bii) any securities, notes or other similar obligations or other securities or assets received by the Company or any such Restricted Subsidiary from such transferee that are converted within 180 days of the consummation of the related Asset Sale by the Company or such Restricted Subsidiary into cash and Cash Equivalents within 180 days of the receipt thereof (to the extent of the net cash proceeds or received),
(iii) Indebtedness of any Restricted Subsidiary that is no longer a Restricted Subsidiary as a result of such Asset Sale, to the Cash Equivalents extent that the Company and each other Restricted Subsidiary are released from any guarantee of payment of such Indebtedness in connection with the Asset Sale,
(net iv) consideration consisting of related costsIndebtedness of the Company (other than Subordinated Indebtedness) received upon such conversion) and after the Issue Date from Persons who are not the Company or any Restricted Subsidiary, and
(Cv) any Designated Noncash Non-cash Consideration received by the Company or any such Restricted Subsidiary in the such Asset Sale having an aggregate fair market value, Fair Market Value (as determined in good faith by the Board of the Company), taken together with all other Designated Noncash Non-cash Consideration received pursuant to this clause Section 4.06(a)(v) that is at that time outstanding, not to exceed the greater of:
(1) of $10,000,000; and
(2) 15150.0 million and 25% of Consolidated Tangible Assets EBITDA at the time of the receipt of such Designated Noncash Non-cash Consideration (with the fair market value Fair Market Value of each item of such Designated Noncash Non-cash Consideration being measured at the time received and without giving effect to subsequent changes in value), shall be deemed to be Cash Equivalents for the purposes of this Section 4.06(a).
(iib) If Within 365 days after the Company Company’s or any Restricted Subsidiary engages in an Subsidiary’s receipt of the Net Proceeds of any Asset Sale, the Company mayor such Restricted Subsidiary may apply 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, within 12 months after such Asset Saleif the Indebtedness repaid is revolving credit Indebtedness, (1) apply all or a portion of the Net Cash Proceeds to the permanent reduction of amounts outstanding under the Credit Agreement (and to correspondingly reduce the commitments, if any, commitments with respect thereto), (B) or to the permanent repayment of other Senior Indebtedness of a Restricted Subsidiary that is not a Guarantor, (C) Obligations under the Notes of any series or (D) other Pari Passu Indebtedness (provided that if the Company or a Restricted Subsidiaryany Guarantor shall so reduce the Obligations under unsecured Pari Passu Indebtedness under this clause (D), the Company will equally and ratably reduce Notes Obligations with respect to the Notes of each series pursuant to Section 3.01, through open-market purchases (provided that such purchases are at or above 100% of the repayment 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 on the pro rata principal amount of Notes of such series), in each case other than Indebtedness owed to the Company or an Affiliate of the Company; or
(ii) to make an investment in any Indebtedness incurred under one or more businesses (provided that if such investment is in the Credit Agreement in connection with form of the acquisition of any Facility with the proceeds Capital Stock of any subsequent Sale and Leaseback Transaction relating to a Person, such Facility shall not be required to result acquisition results in the permanent reduction such Person becoming a Restricted Subsidiary of the amounts outstanding under the Credit Agreement or correspondingly permanently reduce the commitments thereunderCompany), assets, or property or capital expenditures, in each case (2A) invest used or useful in a Similar Business or (or enter into a legally binding agreement to investB) all or a portion of such Net Cash Proceeds in properties and assets to that replace the properties and assets that were 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 or in properties and assets 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 will be used in the businesses of event such binding commitment is later canceled or terminated for any reason before such Net Proceeds are so applied, then such Net Proceeds shall constitute Excess Proceeds unless the Company or its such Restricted SubsidiariesSubsidiary enters into another binding commitment (a “Second Commitment”) within six months of such cancellation or termination of the prior binding commitment; provided, as further, that the case Company or such Restricted Subsidiary may be, existing on only enter into a Second Commitment under the Closing Date foregoing provision one time with respect to each Asset Sale and to the extent such Second Commitment is later cancelled or in businesses the same, similar or reasonably related thereto. If terminated for any such legally binding agreement to invest reason before such Net Cash Proceeds is terminated, the Company may, are applied or are not applied within 90 180 days of such termination or within 12 months of such Asset SaleSecond Commitment, whichever is later, invest then such Net Cash Proceeds as provided in clause (1) or (2) (without regard to the parenthetical contained in such clause (2)) aboveshall constitute Excess Proceeds. Pending the final application of any such Net Cash Proceeds, the Company or such Restricted Subsidiary may temporarily reduce Indebtedness under a revolving credit borrowings facility, if any, or otherwise invest such Net Cash Proceeds in a any manner that is not prohibited by this AgreementIndenture. The amount Any Net Proceeds from any Asset Sale that are not applied as provided and within the time period set forth in the first sentence of this Section 4.06(b) (it being understood that any portion of such Net Cash Proceeds used to make an offer to purchase Notes of any series, as described in clause (i) of this Section 4.06(b), shall be deemed to have been invested whether or not so used as set forth above in this paragraph shall such offer is accepted) will be deemed to constitute "“Excess Proceeds."
(c) ” When the aggregate amount of Excess Proceeds exceeds $10,000,000100 million, the Company will, within 30 days thereafter, shall make an offer to purchase all holders of Notes of one or more series selected by the Company (and, at the option of the Company, 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 (in the case of the Dollar Notes), or at least €100,000 and an integral multiple of €1,000 in excess thereof (in the case of the Euro Notes) that may be purchased out of the Excess Proceeds Offer") from all Holders at an offer price in cash in an amount equal to 100% of the principal amount thereof (or, in the event the Notes on a pro rata basisor other Pari Passu Indebtedness were issued with significant original issue discount, 100% of the accreted value thereof), plus accrued and unpaid interest (or, in respect of such other Pari Passu Indebtedness, such lesser price, if any, as may be provided for by the terms of such other Pari Passu Indebtedness), to, but excluding, the date fixed for the closing of such offer, in accordance with the procedures set forth in this AgreementIndenture. The Company will commence an Asset Sale Offer with respect to Excess Proceeds within ten (10) Business Days after the date that Excess Proceeds exceeds $100 million by mailing, or delivering electronically if held by DTC in the case of the Dollar Notes or a common depositary for Euroclear and Clearstream in the case of the Euro Notes, the maximum principal amount (expressed as a multiple of $1,000) of Notes that may be purchased with the Excess Proceeds, at a purchase price in cash equal to 100% of the principal amount thereof, plus accrued interest, if any, notice required pursuant to the date such offer terms of this Indenture, with a copy to purchase is consummatedthe Trustee. To the extent that the aggregate principal amount of Notes (and such other Pari Passu Indebtedness) tendered pursuant to such offer to purchase an Asset Sale Offer is less than the Excess Proceeds, the Company may use such deficiency any remaining Excess Proceeds for general corporate purposesany purpose that is not prohibited by this Indenture. If the aggregate principal amount of Notes validly tendered (and not withdrawn such other Pari Passu Indebtedness) surrendered by holders thereof exceeds the amount of Excess Proceeds, the amount of Notes of each series in respect of which an Asset Sale Offer as made shall be designated by the Company to the Trustee, and the Trustee, upon receipt of notice from the Company of the aggregate principal amount to be selected, shall select the Notes of each such series to be purchased will be selected on a pro rata basisin the manner described in Section 4.06(e). Upon completion of any such offer to purchaseAsset Sale Offer, the amount of Excess Proceeds will shall be reset to at zero.
(iiic) The Company will comply with the requirements of Rule 14e-1 under the Exchange Act and any other securities laws and regulations thereunder to the extent such laws and or regulations are applicable in connection with each the repurchase of the Notes pursuant to an Excess Proceeds Asset Sale Offer. To the extent that the provisions of any securities laws or regulations conflict with the Asset Sales provisions of this AgreementIndenture, the Company will comply with the applicable securities laws and regulations and will shall not be deemed to have breached its obligations under described in this Indenture by virtue thereof.
(d) Not later than the date upon which written notice of an Asset Sale Offer is delivered to the Trustee as provided above, the Company shall deliver to the Trustee an Officers’ Certificate as to (i) the amount of the Excess Proceeds, (ii) the allocation of the Net Proceeds from the Asset Sales pursuant to which such Asset Sale Offer is being made and (iii) the compliance of such allocation with the provisions of Section 5(j4.06(b). On such date, the Company shall also irrevocably deposit with the Trustee or the Paying Agent (or, if the Company or a Subsidiary is acting as the Paying Agent, segregate and hold in trust) an amount equal to the Excess Proceeds to be invested in Cash Equivalents, as directed in writing by the Company and to be held for payment in accordance with the provisions of this Agreement Section 4.06. The Trustee shall have the right to open an account for purposes of receiving such Excess Proceeds. Upon the expiration of the period for which the Asset Sale Offer remains open (the “Offer Period”), the Company shall deliver to the Trustee for cancellation the Notes or portions thereof that have been properly tendered to and are to be accepted by virtue the Company. The Trustee (or the Paying Agent, if not the Trustee) shall, on the date of purchase, mail or deliver payment to each tendering holder in the amount of the purchase price. In the event that the Excess Proceeds delivered by the Company to the Trustee are greater than the purchase price of the Notes tendered, the Trustee shall deliver the excess to the Company immediately after the expiration of the Offer Period for application in accordance with this Section 4.06.
(e) Holders electing to have a Note purchased shall be required to surrender such Note, with an appropriate form duly completed, to the Company at the address specified in the notice at least three Business Days prior to the purchase date. Holders shall be entitled to withdraw their election if the Trustee or the Company receives not later than one Business Day prior to the purchase date, a telegram, telex, facsimile transmission or letter setting forth the name of the holder, the principal amount of the Note which was delivered by the holder for purchase and a statement that such holder is withdrawing his election to have such Note purchased. If at the end of the Offer Period more Notes (and such other Pari Passu Indebtedness) are tendered pursuant to an Asset Sale Offer than the Company is required to purchase, selection of the amount of Notes of each series in respect of which an Asset Sale Offer was made shall be designated by the Company to the Trustee, and the selection of Notes of such conflictseries for purchase shall be made by the Trustee on a pro rata basis within each series 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 DTC in the case of the Dollar Notes or Clearstream and Euroclear in the case of the Euro Notes, if applicable); provided that no Notes of $2,000 (in the case of the Dollar Notes), or €100,000 (in the case of the Euro Notes), or less shall be purchased in part and all purchases shall be in integral multiples of $1,000 or €1,000, as applicable. Selection of such other Pari Passu Indebtedness shall be made pursuant to the terms of such other Pari Passu Indebtedness.
(f) Notices of an Asset Sale Offer shall be mailed by the Company by first class mail, postage prepaid, or delivered electronically if held at DTC in the case of the Dollar Notes or a common depositary for Euroclear and Clearstream in the case of the Euro Notes, at least 30 but not more than 60 days before the purchase date to each holder of Notes at such holder’s registered address. If any Note is to be purchased in part only, any notice of purchase that relates to such Note shall state the portion of the principal amount thereof that has been or is to be purchased.
Appears in 1 contract
Samples: Indenture (XPO Logistics, Inc.)
Asset Sales. (ia) The Company shall not, and shall not permit any of the Restricted Subsidiary Subsidiaries to, engage in any cause or make an Asset Sale Sale, unless (x) the Company or 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 in good faith by the Company) of the assets sold or otherwise disposed of, and (y) at least 75% of the consideration therefor received by the Company or such Restricted Subsidiary for such Asset Sale Subsidiary, as the case may be, is not less than in the fair market value form of Cash Equivalents; provided that the assets sold evidenced by a resolution of the board of directors of such entity set forth in an Officers' Certificate delivered to the Holders and amount of:
(y) the consideration received by the Company or the relevant Restricted Subsidiary in respect of such Asset Sale consists of at least 75% cash or Cash Equivalents (for purposes of this clause (y), cash and Cash Equivalents includes (Ai) any liabilities (as reflected shown on the Company’s or a Restricted Subsidiary’s most recent balance sheet or in the Company's consolidated balance sheetnotes thereto) of the Company or any a Restricted Subsidiary (other than contingent liabilities and liabilities that are by their terms subordinated to the Notes or any Guarantee) that are assumed by any the transferee of any such assets or other property in such Asset Sale, and where the Company that are otherwise cancelled or the relevant Restricted Subsidiary is released from any further liability terminated in connection therewith with respect to the transaction with such liabilities, transferee,
(Bii) any securities, notes or other similar obligations or other securities or assets received by the Company or any such Restricted Subsidiary from such transferee that are converted within 180 days of the consummation of the related Asset Sale by the Company or such Restricted Subsidiary into cash and Cash Equivalents within 180 days of the receipt thereof (to the extent of the net cash proceeds or received),
(iii) Indebtedness of any Restricted Subsidiary that is no longer a Restricted Subsidiary as a result of such Asset Sale, to the Cash Equivalents extent that the Company and each other Restricted Subsidiary are released from any guarantee of payment of such Indebtedness in connection with the Asset Sale,
(net iv) consideration consisting of related costsIndebtedness of the Company (other than Subordinated Indebtedness) received upon such conversion) and after the Issue Date from Persons who are not the Company or any Restricted Subsidiary, and
(Cv) any Designated Noncash Non-cash Consideration received by the Company or any such Restricted Subsidiary in the such Asset Sale having an aggregate fair market value, Fair Market Value (as determined in good faith by the Board of the Company), taken together with all other Designated Noncash Non-cash Consideration received pursuant to this clause Section 4.06(a)(v) that is at that time outstanding, not to exceed the greater of:
(1) of $10,000,000; and
(2) 15400 million and 25% of Consolidated Tangible Assets EBITDA at the time of the receipt of such Designated Noncash Non-cash Consideration (with the fair market value Fair Market Value of each item of such Designated Noncash Non-cash Consideration being measured at the time received and without giving effect to subsequent changes in value), shall be deemed to be Cash Equivalents for the purposes of this Section 4.06(a).
(iib) If Within 365 days after the Company Company’s or any Restricted Subsidiary engages in an Subsidiary’s receipt of the Net Proceeds of any Asset Sale, the Company mayor such Restricted Subsidiary may apply the Net Proceeds from such Asset Sale, at its option:
(i) to repay (A) Pari Passu Lien Obligations (other than the Notes Obligations) (and, within 12 months after such Asset Saleif the Indebtedness repaid is revolving credit Indebtedness, (1) apply all or a portion of the Net Cash Proceeds to the permanent reduction of amounts outstanding under the Credit Agreement (and to correspondingly reduce the commitments, if any, commitments with respect thereto), (B) or Indebtedness of a Restricted Subsidiary that is not a Guarantor, (C) Notes Obligations, (D) ABL Debt Obligations to the permanent repayment extent such Net Proceeds are from an Asset Sale of ABL Priority Collateral (including indirect Asset Sales of ABL Priority Collateral due to the sale of the Capital Stock of a Person), or (E) Pari Passu Indebtedness other Senior Indebtedness than Pari Passu Lien Obligations to the extent such Net Proceeds are from an Asset Sale of assets that do not constitute Collateral; provided that if the Company or any Guarantor shall so reduce Obligations under unsecured Pari Passu Indebtedness under this clause (E), the Company will, on a Restricted Subsidiarypro rata basis, reduce Notes Obligations pursuant to Section 3.01, through open-market purchases (provided that such purchases are at or above 100% of the repayment principal amount thereof or, in the event that the Notes were issued with significant original issue discount, at or above 100% of the accreted value thereof) or by making an offer (in accordance with the procedures set forth below for an Asset Sale Offer) to all holders of the Notes to purchase such holder’s Notes at a purchase price at or above 100% of the principal amount thereof (or, in the event that the Notes were issued with significant original issue discount, at or above 100% of the accreted value thereof), plus accrued and unpaid interest), in each case other than Indebtedness owed to the Company or an Affiliate of the Company; or
(ii) to make an investment in any Indebtedness incurred under one or more businesses (provided that if such investment is in the Credit Agreement in connection with form of the acquisition of any Facility with the proceeds Capital Stock of any subsequent Sale and Leaseback Transaction relating to a Person, such Facility shall not be required to result acquisition results in the permanent reduction such Person becoming a Restricted Subsidiary of the amounts outstanding under the Credit Agreement or correspondingly permanently reduce the commitments thereunderCompany), assets, or property or capital expenditures, in each case (2A) invest used or useful in a Similar Business or (or enter into a legally binding agreement to investB) all or a portion of such Net Cash Proceeds in properties and assets to that replace the properties and assets that were 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 or in properties and assets 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 will be used in the businesses of event such binding commitment is later canceled or terminated for any reason before such Net Proceeds are so applied, then such Net Proceeds shall constitute Excess Proceeds unless the Company or its such Restricted SubsidiariesSubsidiary enters into another binding commitment (a “Second Commitment”) within six months of such cancellation or termination of the prior binding commitment; provided, as further, that the case Company or such Restricted Subsidiary may be, existing on only enter into a Second Commitment under the Closing Date foregoing provision one time with respect to each Asset Sale and to the extent such Second Commitment is later cancelled or in businesses the same, similar or reasonably related thereto. If terminated for any such legally binding agreement to invest reason before such Net Cash Proceeds is terminated, the Company may, are applied or are not applied within 90 180 days of such termination or within 12 months of such Asset SaleSecond Commitment, whichever is later, invest then such Net Cash Proceeds as provided shall constitute Excess Proceeds (in clause (1) or (2) (without regard each case subject to the parenthetical contained in such clause (2proviso to the first sentence of the second succeeding paragraph and to the third succeeding paragraph)) above. Pending the final application of any such Net Cash Proceeds, the Company or such Restricted Subsidiary may temporarily reduce Indebtedness under a revolving credit borrowings facility, if any, or otherwise invest such Net Cash Proceeds in a any manner that is not prohibited by this AgreementIndenture. The amount Any Net Proceeds from any Asset Sale that are not applied as provided and within the time period set forth in the first sentence of this Section 4.06(b) (it being understood that any portion of such Net Cash Proceeds used to make an offer to purchase the Notes, as described in clause (i) of this Section 4.06(b), shall be deemed to have been invested whether or not so used as set forth above in this paragraph such offer is accepted) will be deemed to constitute “Excess Proceeds”; provided, that no Net Proceeds which would otherwise constitute “Excess Proceeds” shall constitute "Excess Proceeds in any fiscal year until the aggregate amount of all such Net Proceeds in such fiscal year shall exceed $200 million (and thereafter only Net Proceeds in excess of such amount shall constitute Excess Proceeds."
(c) ). When the aggregate amount of Excess Proceeds exceeds $10,000,000100 million, the Company will, within 30 days thereafter, shall make an offer to purchase all holders of the Notes (and, at the option of the Company, to holders of any other Pari Passu Indebtedness; provided, that to the extent any Net Proceeds are from an Asset Sale that constitutes Collateral, to holders of any other Pari Passu Lien Obligations only) (an "“Asset Sale Offer”) to purchase the maximum principal amount of the Notes (and such other Pari Passu Indebtedness or Pari Passu Lien Obligations, as the case may be) 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 Offer") from all Holders at an offer price in cash in an amount equal to 100% of the principal amount thereof (or, in the event the Notes on a pro rata basisor other Pari Passu Indebtedness were issued with significant original issue discount, 100% of the accreted value thereof), plus accrued and unpaid interest (or, in respect of such other Pari Passu Indebtedness or Pari Passu Lien Obligations, as the case may be, such lesser price, if any, as may be provided for by the terms of such other Pari Passu Indebtedness or Pari Passu Lien Obligations, as the case may be), to, but excluding, the date fixed for the closing of such offer, in accordance with the procedures set forth in this AgreementIndenture. The Company will commence an Asset Sale Offer with respect to Excess Proceeds within ten (10) Business Days after the date that Excess Proceeds exceeds $100 million by mailing, or delivering electronically if held by DTC, the maximum principal amount (expressed as a multiple of $1,000) of Notes that may be purchased with the Excess Proceeds, at a purchase price in cash equal to 100% of the principal amount thereof, plus accrued interest, if any, notice required pursuant to the date such offer terms of this Indenture, with a copy to purchase is consummatedthe Trustee. To the extent that the aggregate principal amount of the Notes (and such other Pari Passu Indebtedness or Pari Passu Lien Obligations, as the case may be) tendered pursuant to such offer to purchase an Asset Sale Offer is less than the Excess Proceedsaggregate principal amount of the Notes that the Company has offered to purchase pursuant to an Asset Sale Offer, the Company may use such deficiency any remaining Excess Proceeds for general corporate purposes. If the aggregate principal amount of Notes validly tendered and any purpose that is not withdrawn prohibited by holders thereof exceeds the Excess Proceeds, the Notes to be purchased will be selected on a pro rata basisthis Indenture. Upon completion of any such offer to purchaseAsset Sale Offer, the amount of Excess Proceeds will shall be reset to at zero.
(iiic) The Company will comply comply, to the extent applicable, with the requirements of Rule 14e-1 under Section 14(e) of the Exchange Act and any other securities laws and or regulations thereunder to the extent such laws and regulations are applicable in connection with each the repurchase of the Notes pursuant to an Excess Proceeds Asset Sale Offer. To the extent that the provisions of any securities laws or regulations conflict with the Asset Sales provisions of this AgreementIndenture, the Company will comply with the applicable securities laws and regulations and will shall not be deemed to have breached its obligations under described in this Indenture by virtue thereof.
(d) Not later than the date upon which written notice of an Asset Sale Offer is delivered to the Trustee as provided above, the Company shall deliver to the Trustee an Officers’ Certificate as to (i) the amount of the Excess Proceeds, (ii) the allocation of the Net Proceeds from the Asset Sales pursuant to which such Asset Sale Offer is being made and (iii) the compliance of such allocation with the provisions of Section 5(j4.06(b). On such date, the Company shall also irrevocably deposit with the Trustee or the Paying Agent (or, if the Company or a Subsidiary is acting as the Paying Agent, segregate and hold in trust) an amount equal to the Excess Proceeds to be invested in Cash Equivalents, as directed in writing by the Company and to be held for payment in accordance with the provisions of this Agreement Section 4.06. The Trustee shall have the right to open an account for purposes of receiving such Excess Proceeds. Upon the expiration of the period for which the Asset Sale Offer remains open (the “Offer Period”), the Company shall deliver to the Trustee for cancellation the Notes or portions thereof that have been properly tendered to and are to be accepted by virtue the Company. The Trustee (or the Paying Agent, if not the Trustee) shall, on the date of purchase, mail or deliver payment to each tendering holder in the amount of the purchase price. In the event that the Excess Proceeds delivered by the Company to the Trustee are greater than the purchase price of the Notes tendered, the Trustee shall deliver the excess to the Company immediately after the expiration of the Offer Period for application in accordance with this Section 4.06.
(e) Holders electing to have a Note purchased shall be required to surrender such Note, with an appropriate form duly completed, to the Company at the address specified in the notice at least three Business Days prior to the purchase date. Holders shall be entitled to withdraw their election if the Trustee or the Company receives not later than one Business Day prior to the purchase date, a telegram, telex, facsimile transmission or letter setting forth the name of the holder, the principal amount of the Note which was delivered by the holder for purchase and a statement that such holder is withdrawing his election to have such Note purchased. If more Notes (and such other Pari Passu Lien Obligations or Pari Passu Indebtedness, as the case may be) are tendered pursuant to an Asset Sale Offer than the Company is required to purchase, such Notes shall be selected for purchase in such manner as complies with the requirements of DTC; provided that no Notes of $2,000 or less shall be purchased in part and all purchases shall be in integral multiples of $1,000. Selection of such conflictother Pari Passu Lien Obligations or Pari Passu Indebtedness, as the case may be, shall be made pursuant to the terms of such other Pari Passu Lien Obligations or Pari Passu Indebtedness, as the case may be.
(f) Notices of an Asset Sale Offer shall be mailed by the Company by first class mail, postage prepaid, or delivered electronically if held at DTC, at least 30 but not more than 60 days before the purchase date to each holder of the Notes at such holder’s registered address. If any Note is to be purchased in part only, any notice of purchase that relates to such Note shall state the portion of the principal amount thereof that has been or is to be purchased.
(g) Notwithstanding any other provisions of this Section 4.06, (i) to the extent that any of or all the Net Proceeds of any Asset Sale are received or deemed to be received by a Foreign Subsidiary (or a Domestic Subsidiary of a Foreign Subsidiary) (a “Foreign Disposition”) and give rise to a prepayment or repurchase event described above that is (x) prohibited, restricted or delayed by applicable local law, rule or regulation (including, without limitation, (a) financial assistance and corporate benefit restrictions and (b) fiduciary and statutory duties of any director or officer of such Subsidiaries), (y) restricted by applicable organizational documents or any agreement or (z) subject to other onerous organizational or administrative impediments, in each case, to being repatriated or otherwise paid to the Company or so prepaid, or if such repatriation or payment or prepayment would present a material risk of liability for the applicable Subsidiary or its directors or officers (or gives rise to a material risk of breach of fiduciary or statutory duties by any director or officer), an amount equal to the portion of such Net Proceeds so affected will not be required to be applied in compliance with this Section 4.06 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 an adverse tax consequence (which for the avoidance of doubt, includes, but is not limited to, any prepayment out of such Net Proceeds whereby doing so the Company, any of its Subsidiaries or any of their respective Affiliates and/or equity owners would incur a tax liability, including a taxable dividend) (as determined by the Company), an amount equal to the Net Proceeds so affected will not be required to be applied in compliance with this Section 4.06. The non-application of any prepayment or repurchase amounts as a consequence of the foregoing provisions will not, for the avoidance of doubt, constitute a Default or an Event of Default.
(h) This Section 4.06 shall not apply from and after the occurrence of a Fall-Away Event.
Appears in 1 contract
Samples: Indenture (XPO, Inc.)
Asset Sales. (ia) The Company shall will not, and shall will not permit any of its Restricted Subsidiary Subsidiaries to, engage in any consummate an Asset Sale unless unless:
(x1) the Company (or such Restricted Subsidiary, as the case may be) receives consideration at the time of the Asset Sale at least equal to the fair market value of the assets or Equity Interests issued or sold or otherwise disposed of; and
(2) except in the case of a Permitted Asset Swap, at least 75% of the consideration received in the Asset Sale by the Company or such Restricted Subsidiary for such Asset Sale is not less than in the fair market value form of the assets sold evidenced by a resolution of the board of directors of such entity set forth in an Officers' Certificate delivered to the Holders and (y) the consideration received by the Company or the relevant Restricted Subsidiary in respect of such Asset Sale consists of at least 75% cash or Cash Equivalents Equivalents. The amount of:
(for purposes of this clause (y), cash and Cash Equivalents includes (Ai) any liabilities (as reflected shown on the Company’s or such Restricted Subsidiary’s most recent balance sheet or in the Company's consolidated balance sheetnotes thereto) of the Company or any Restricted Subsidiary (other than contingent liabilities and liabilities that are by their terms subordinated to the Notes or any GuaranteeNotes) that are assumed or satisfied by any the transferee of any such assets or other property in such Asset Sale, and where for which the Company or the relevant and all Restricted Subsidiary is Subsidiaries have been validly released from any further liability by all creditors in connection therewith with respect to such liabilities, writing,
(Bii) any securities, notes or other similar obligations securities received by the Company or any such Restricted Subsidiary from such transferee that are converted within 180 days of the consummation of the related Asset Sale by the Company or such Restricted Subsidiary into cash and Cash Equivalents (to the extent of the net cash proceeds or received) within 180 days following the Cash Equivalents receipt thereof, and
(net of related costs) received upon such conversion) and (Ciii) any Designated Noncash Non-cash Consideration received by the Company or any of its Restricted Subsidiaries in such Restricted Subsidiary in the Asset Sale having an aggregate fair market value, value (as determined in good faith by the Board of the Company), taken together with all other Designated Noncash Non-cash Consideration received pursuant to this clause (iii) that is at that time outstanding, not to exceed the greater of:
of (1x) $10,000,000; and
100.0 million and (2y) 153.0% of Consolidated Tangible Total Assets at the time of the receipt of such Designated Noncash Non-cash Consideration (with the fair market value of each item of such Designated Noncash Non-cash Consideration being measured at the time received and without giving effect to subsequent changes in value), shall be deemed to be cash solely for the purposes of this Section 4.06(a)(2).
(iib) If Within 365 days after the Company or receipt of any Restricted Subsidiary engages in Net Proceeds from an Asset Sale, the Company may, may apply those Net Proceeds at its optionoption to:
(i) permanently reduce Obligations under (x) the Senior Secured Credit Agreement or other Obligations secured by a Lien, within 12 months after such Asset Sale, or (1y) apply all Indebtedness that ranks pari passu with the Notes or a portion of the Net Cash Proceeds to the permanent reduction of amounts outstanding under the Credit Agreement Guarantee (and to correspondingly reduce the commitmentsprovided, that if any, with respect thereto) or to the permanent repayment of other Senior Indebtedness of the Company or a Restricted SubsidiaryGuarantor shall so reduce Obligations under such Indebtedness, provided that the repayment of any Indebtedness incurred Issuers will equally and ratably reduce Obligations under the Credit Agreement in connection with the acquisition of any Facility with the proceeds of any subsequent Sale and Leaseback Transaction relating to such Facility shall not be required to result in the permanent reduction of the amounts outstanding under the Credit Agreement or correspondingly permanently reduce the commitments thereunder, or (2) invest (or enter into a legally binding agreement to invest) all or a portion of such Net Cash Proceeds in properties and assets to replace the properties and assets that were the subject of the Asset Sale or in properties and assets that will be used in the businesses of the Company or its Restricted Subsidiaries, as the case may be, existing on the Closing Date or in businesses the same, similar or reasonably related thereto. If any such legally binding agreement to invest such Net Cash Proceeds is terminated, the Company may, within 90 days of such termination or within 12 months of such Asset Sale, whichever is later, invest such Net Cash Proceeds as provided in clause (1) or (2) (without regard to the parenthetical contained in such clause (2)) above. Pending the final application of any such Net Cash Proceeds, the Company may temporarily reduce revolving credit borrowings or otherwise invest such Net Cash Proceeds in a manner that is not prohibited Notes by this Agreement. The amount of such Net Cash Proceeds not so used as set forth above in this paragraph shall constitute "Excess Proceeds."
(c) When the aggregate amount of Excess Proceeds exceeds $10,000,000, the Company will, within 30 days thereafter, make making an offer to purchase (an "Excess Proceeds Offer") from all Holders of Notes on a pro rata basis, in accordance with the procedures set forth in this Agreement, below for an Asset Sale Offer) to all Holders of the maximum principal amount (expressed as a multiple of $1,000) of Notes that may be purchased with the Excess Proceeds, to purchase at a purchase price in cash equal to 100% of the principal amount thereof, plus accrued interestand unpaid interest and Additional Interest, if any, the pro rata principal amount of Notes) or Indebtedness of a Restricted Subsidiary that is not a Guarantor, in each case other than Indebtedness owed to the Company or an Affiliate of the Company (provided, that in the case of any reduction of any revolving obligations, the Company or such Restricted Subsidiary shall effect a corresponding reduction of commitments with respect thereto);
(ii) make an investment in (A) any one or more businesses; provided, that such investment in any business is in the form of the acquisition of Capital Stock and results in the Company or a Restricted Subsidiary 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
(iii) make an investment in or expenditures for (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 the Company 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; provided, that the 365-day period provided above to apply any portion of Net Proceeds in accordance with clause (ii) or (iii) above shall be extended by an additional 180 days if by not later than the 365th day after receipt of such Net Proceeds the Company or a Restricted Subsidiary, as applicable, has entered into a bona fide binding commitment with a Person other than an Affiliate of the Company to make an investment of the type referred to in either such clause in the amount of such Net Proceeds. When the aggregate amount of Net Proceeds not applied or invested in accordance with the preceding paragraph (“Excess Proceeds”) exceeds $20.0 million, the Issuers will make an Asset Sale Offer to all Holders of the Notes (an “Asset Sale Offer”) to purchase on a pro rata basis the maximum principal amount of such Notes that may be purchased out of the Excess Proceeds. The offer price in any Asset Sale Offer will be equal to 100% of principal amount plus accrued and unpaid interest and Additional Interest, if any, to the date such offer of purchase, and will be payable in cash. The Issuers shall commence an Asset Sale Offer with respect to purchase is consummated. To Excess Proceeds within ten (10) Business Days after the extent date that Excess Proceeds exceed $20 million by mailing the aggregate principal amount of Notes tendered notice required pursuant to the terms of Section 4.06(f), with a copy to the Trustee. Pending the final application of any Net Proceeds, the Company or such offer to purchase Restricted Subsidiary may temporarily reduce revolving credit borrowings or otherwise invest the Net Proceeds in any manner that is less than the not prohibited by this Indenture. If any Excess ProceedsProceeds remain after consummation of an Asset Sale Offer, the Company may use such deficiency those Excess Proceeds for general corporate purposesany purpose not otherwise prohibited by this Indenture. If the aggregate principal amount of the Notes validly tendered and not withdrawn by holders thereof into such Asset Sale Offer exceeds the amount of Excess Proceeds, the Trustee will select the Notes to be purchased will be selected on a pro rata basis. Additionally, the Issuer may, at its option, make an Asset Sale Offer using proceeds from any Asset Sale at any time after consummation of such Asset Sale. Upon completion of such offer to purchaseeach Asset Sale Offer, the amount of Excess Proceeds will be reset to at zero.
(iiic) The Company will Issuers shall comply with the requirements of Rule 14e-1 under the Exchange Act and any other securities laws and regulations thereunder to the extent such those laws and regulations are applicable in connection with each repurchase of the Notes pursuant to an Excess Proceeds Asset Sale Offer. To the extent that the provisions of any securities laws or regulations conflict with the Asset Sales Sale provisions of this AgreementIndenture, the Company will Issuers shall comply with the applicable securities laws and regulations and will not be deemed to have breached its obligations under Section 5(j) the Asset Sale provisions of this Agreement Indenture by virtue of such conflict.
(d) Not later than the date upon which written notice of an Asset Sale Offer is delivered to the Trustee as provided above, the Issuers shall deliver to the Trustee an Officer’s Certificate as to (i) the amount of the Excess Proceeds, (ii) the allocation of the Net Proceeds from the Asset Sales pursuant to which such Asset Sale Offer is being made and (iii) the compliance of such allocation with the provisions of Section 4.06(b). On such date, the Issuers shall also irrevocably deposit with the Trustee or with a Paying Agent (or, if the Company or a Wholly Owned Subsidiary is acting as a Paying Agent, such Paying Agent shall 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 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 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 Issuers to the Trustee is 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 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 Issuers 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 Issuers receive not later than one (1) Business Day prior to the Purchase Date, a facsimile transmission or letter setting forth the name of the Holder, the principal amount of the Note which was delivered by the Holder for purchase and a statement that such Holder is withdrawing his election to have such Note purchased. If at the end of the Offer Period more Notes 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 Notes of $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 60 days before the purchase date to each Holder of Notes at such Holder’s registered address. If any Note is to be purchased in part only, any notice of purchase that relates to such Note shall state the portion of the principal amount thereof that is to be purchased.
(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 Issuers default in payment of the purchase price, interest shall cease to accrue on Notes or portions thereof purchased.
Appears in 1 contract
Asset Sales. (i) The Company shall not, and shall not permit any of its Restricted Subsidiary Subsidiaries to, engage in any consummate an Asset Sale unless unless:
(xi) the Company (or the Restricted Subsidiary, as the case may be) receives consideration at least equal to the fair market value of the assets or Equity Interests issued or sold or otherwise disposed of (such fair market value to be determined in good faith by the Company on the date of contractually agreeing to such Asset Sale); and
(ii) at least 75% of the consideration received in the Asset Sale by the Company or such Restricted Subsidiary for such Asset Sale is not less than in the fair market value form of the assets sold evidenced by a resolution of the board of directors of such entity set forth in an Officers' Certificate delivered to the Holders and (y) the consideration received by the Company or the relevant Restricted Subsidiary in respect of such Asset Sale consists of at least 75% cash or Cash Equivalents (for Equivalents. For purposes of this clause (y)ii) only, cash and Cash Equivalents includes each of the following shall be deemed to be cash:
(Aa) the amount of any liabilities (liabilities, as reflected in shown on the Company's consolidated ’s or such Restricted Subsidiary’s most recent balance sheet) , of the Company or any such Restricted Subsidiary (other than contingent liabilities and liabilities that are by their terms subordinated to the Notes or any Subsidiary Guarantee) that are assumed by any the transferee of any such assets pursuant to a customary novation agreement or other property in such Asset Sale, and where by operation of law that releases the Company or the relevant such Restricted Subsidiary is released from any further liability in connection therewith with respect to such liabilities, liability;
(Bb) any securities, notes or other similar obligations received by the Company or any such Restricted Subsidiary from such transferee that are converted within 180 days of the consummation of the related Asset Sale by the Company or such Restricted Subsidiary into cash and Cash Equivalents (within 180 days of the closing of the related Asset Sale, to the extent of the net cash proceeds or the Cash Equivalents received in that conversion; and
(net of related costs) received upon such conversion) and (Cc) any Designated Noncash Non-cash Consideration received by the Company or any such Restricted Subsidiary in the such Asset Sale having an aggregate fair market value, as determined by the Board of the Company, taken together with all other Designated Noncash Non-cash Consideration received pursuant to this clause that is (c) at that time outstanding, not to exceed the greater of:
(1) $10,000,000; and
(2) 152.0% of Consolidated Net Tangible Assets at the time of the receipt of such Designated Noncash Consideration (Non-cash Consideration, with the fair market value of each item of such Designated Noncash Non-cash Consideration being measured at the time received and without giving effect to subsequent changes in value).
(ii) If . Within 365 days after the Company or receipt of any Restricted Subsidiary engages in Net Proceeds from an Asset Sale, the Company may, or such Restricted Subsidiary may apply those Net Proceeds at its option, within 12 months after such Asset Sale, option to:
(1i) apply all or a portion of the Net Cash Proceeds to the permanent reduction of amounts outstanding under the Credit Agreement (and to correspondingly reduce the commitments, if any, with respect thereto) or to the permanent repayment of other permanently repay Senior Indebtedness Debt of the Company or a Restricted Subsidiaryany Guarantor and, if the Senior Debt repaid is revolving credit Indebtedness, to correspondingly reduce commitments with respect thereto; provided that if such Senior Debt being repaid consists of Indebtedness not secured by a Lien, the repayment Notes are reduced or repurchased (including through open-market purchases to the extent such purchases are at or above 100% of any Indebtedness incurred under the Credit Agreement in connection principal amount thereof) on a pro rata basis with such other Senior Debt (based on the aggregate principal amount or accreted value, as applicable, thereof) with the acquisition of any Facility with the proceeds of any subsequent Sale and Leaseback Transaction relating to such Facility shall not be required to result in the permanent reduction of the amounts outstanding under the Credit Agreement or correspondingly permanently reduce the commitments thereunder, or (2) invest (or enter into a legally binding agreement to invest) all or a portion of such Net Cash Proceeds in properties and assets to replace the properties and assets that were the subject of from the Asset Sale or in properties and assets that will be used in the businesses Sale;
(ii) permanently repay Indebtedness of a non-Guarantor Restricted Subsidiary of the Company (other than Indebtedness owed to the Company or its any Restricted SubsidiariesSubsidiary);
(iii) acquire all or substantially all of the assets of, or a majority of the Voting Stock of, another Permitted Business (or a division or unit thereof);
(iv) make a capital expenditure relating to an asset used or useful in a Permitted Business; or
(v) acquire other long-term assets that are used or useful in a Permitted Business; provided that, in the case of clauses (iii), (iv) and (v) above, a binding commitment shall be treated as a permitted final application of the Net Proceeds from the date of such commitment so long as the case may beCompany or such Restricted Subsidiary enters into such commitment with the good faith expectation that such Net Proceeds will be applied to satisfy such commitment within 180 days after the end of the 365-day period (an “Acceptable Commitment”) and, existing on in the Closing Date event any Acceptable Commitment is later cancelled, terminated or in businesses the sameotherwise not consummated during such period for any reason, similar or reasonably related thereto. If then any such legally binding agreement to invest unapplied Net Proceeds shall upon such Net Cash Proceeds is terminated, the Company may, within 90 days of such termination or within 12 months of such Asset Sale, whichever is later, invest such Net Cash Proceeds as provided in clause (1) or (2) (without regard to the parenthetical contained in such clause (2)) aboveevent constitute Excess Proceeds. Pending the final application of any such Net Cash Proceeds, the Company may temporarily reduce revolving credit borrowings or otherwise invest such the Net Cash Proceeds in a any manner that is not prohibited by this AgreementIndenture. The amount of such Any Net Cash Proceeds from Asset Sales that are not so used applied or invested as set forth above provided in this the preceding paragraph shall constitute "“Excess Proceeds."
(c) ” When the aggregate amount of Excess Proceeds exceeds $10,000,00025.0 million, the Company will, within 30 days thereafter, shall make an offer to purchase (an "Excess Proceeds “Asset Sale Offer"”) from to all Holders of Notes on a pro rata basis, in accordance and all holders of other Indebtedness that is pari passu with the procedures Notes containing provisions similar to those set forth in this Agreement, Indenture with respect to offers to purchase or redeem with the proceeds of sales of assets to purchase the maximum principal amount (expressed or accreted value, as a multiple of $1,000applicable) of Notes and such other pari passu Indebtedness that may be purchased with out of the Excess Proceeds, at a purchase Proceeds (the “Offer Amount”). The offer price in cash any Asset Sale Offer shall be equal to 100% of the principal amount thereof(or accreted value, as applicable) thereof plus accrued interestand unpaid interest and Additional Interest, if any, to the date of purchase, and shall be payable in cash. If any Excess Proceeds remain after consummation of an Asset Sale Offer, the Company may use those Excess Proceeds for any purpose not otherwise prohibited by this Indenture. If the aggregate principal amount (or accreted value, as applicable) of Notes and other pari passu Indebtedness tendered into such Asset Sale Offer exceeds the amount of Excess Proceeds, the Notes and such other pari passu Indebtedness shall be purchased on a pro rata basis on the basis of the aggregate principal amount (or accreted value, as applicable) of Notes and of other pari passu Indebtedness tendered. 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. Upon the commencement of an Asset Sale Offer, the Company shall send, by first class mail, a notice to the Trustee and each of the Holders, with a copy to the Trustee. The notice shall contain all instructions and materials necessary to enable such Holders to tender Notes pursuant to the Asset Sale Offer. The Asset Sale Offer shall be made to all Holders. The notice, which shall govern the terms of the Asset Sale Offer, shall state:
(a) that the Asset Sale Offer is being made pursuant to this Section 4.10 and that such Asset Sale Offer shall remain open for 20 Business Days;
(b) the Offer Amount attributable to the Notes, the purchase price and the purchase date of the Asset Sale (the “Purchase Date”);
(c) that any Note not tendered or accepted for payment shall continue to accrue interest and Additional Interest, if any;
(d) that, unless the Company defaults in making such payment, any Note accepted for payment pursuant to the Asset Sale Offer shall cease to accrue interest, and Additional Interest, if any;
(e) that Holders electing to have a Note purchased pursuant to any Asset Sale Offer shall be required to surrender the Note, with the form entitled “Option of Holder to Elect Purchase” on the reverse of the Note completed, or transfer by book-entry transfer, to the Company, a Depositary, if appointed by the Company, or a Paying Agent at the address specified in the notice at least three Business Days before the Purchase Date;
(f) that Holders shall be entitled to withdraw their election if the Company, the depositary or the Paying Agent, as the case may be, receives, not later than the expiration of the offer period, a telegram, telex, facsimile transmission or letter setting forth the name of the Holder, the principal amount of the Note the Holder delivered for purchase and a statement that such Holder is withdrawing his election to purchase is consummated. To the extent that have such Note purchased;
(g) that, if the aggregate principal amount of Notes and aggregate principal amount of such other pari passu Indebtedness tendered pursuant to such offer to purchase is less than by Holders exceeds the Excess ProceedsOffer Amount, the Company may use shall select the Notes and such deficiency for general corporate purposes. If other pari passu Indebtedness to be purchased on a pro rata basis on the basis of the aggregate principal amount of Notes validly and the aggregate principal amount of such other pari passu Indebtedness tendered (with such adjustments as may be deemed appropriate by the Company so that only Notes and not withdrawn other Indebtedness in denominations of $1,000 aggregate principal amount or integral multiples thereof, shall be purchased); and
(h) that Holders whose Notes were purchased only in part shall be issued new Notes equal in principal amount to the unpurchased portion of the Notes surrendered (or transferred by holders thereof exceeds book-entry transfer). On or before the Excess ProceedsPurchase Date, the Notes Company shall, to be purchased will be selected the extent lawful, accept for payment, on a pro rata basisbasis to the extent necessary, the Offer Amount of Notes and such other pari passu Indebtedness or portions thereof tendered pursuant to the Asset Sale Offer, or if less than the Offer Amount has been tendered, all Notes and such other pari passu Indebtedness or portions thereof tendered, and shall deliver to the Trustee an Officers’ Certificate stating that such Notes and such other pari passu Indebtedness or portions thereof were accepted for payment by the Company in accordance with the terms of this Section 4.10. Upon completion The Company, the Depositary or the Paying Agent, as the case may be, shall promptly (but in any case not later than five days after the Purchase Date) mail or deliver to each tendering Holder an amount equal to the purchase price of the Notes tendered by such offer to Holder and accepted by the Company for purchase, and the Company shall promptly issue a new Note, and the Trustee, upon written request from the Company shall authenticate and mail or deliver such new Note to such Holder, in a principal amount equal to any unpurchased portion of Excess Proceeds the Note surrendered. Any Note not so accepted shall be promptly mailed or delivered by the Company to the Holder thereof. The Company shall publicly announce the results of the Asset Sale Offer promptly after the Purchase Date. If the Purchase Date is on or after an interest payment record date and on or before the related interest payment date, any accrued and unpaid interest and Additional Interest, if any, will be reset paid to zero.
(iii) the Holder in whose name a note is registered at the close of business on such record date, and no other interest or Additional Interest, if any, will be payable to Holders whose Notes are purchased pursuant to the Asset Sale Offer. The Company will shall comply with the requirements of Rule 14e-1 under the Exchange Act and any other securities laws and regulations thereunder to the extent such those laws and regulations are applicable in connection with each repurchase of Notes pursuant to an Excess Proceeds Asset Sale Offer. To the extent that the provisions of any securities laws or regulations conflict with the Asset Sales provisions of this AgreementSection 4.10, the Company will shall comply with the applicable securities laws and regulations and will shall not be deemed to have breached its obligations under Section 5(j) the Asset Sale provisions of this Agreement Indenture by virtue of such conflict. Notwithstanding anything to the contrary contained in this Indenture, the Company or any of its Restricted Subsidiaries may engage in transactions in which theatre properties shall be transferred in exchange for one or more other theatre properties; provided that if the fair market value of the theatre properties to be transferred by the Company or such Restricted Subsidiary, plus the fair market value of any other consideration paid or credited by the Company or such Restricted Subsidiary (the “Transaction Value”) exceeds $10.0 million, such transaction shall require approval of the Board of Directors of the Company. In addition, each such transaction shall be valued at an amount equal to all consideration received by the Company or such Restricted Subsidiary in such transaction other than the theatre properties received pursuant to such exchange (“Other Consideration”) for purposes of determining whether an Asset Sale has occurred. If the Other Consideration is of an amount and character such that such transaction constituted an Asset Sale, then the preceding paragraphs of this Section 4.10 shall be applicable to any Net Proceeds of such Other Consideration.
Appears in 1 contract
Samples: Indenture (Cinemark Holdings, Inc.)
Asset Sales. (i) The Company shall not, and shall not permit any of its Restricted Subsidiary Subsidiaries to, engage in any consummate an Asset Sale unless unless:
(xA) the Company (or the Restricted Subsidiary, as the case may be) receives consideration at the time of such Asset Sale at least equal to the fair market value of the assets or Equity Interests issued or otherwise disposed of;
(B) if the fair market value of such assets or Equity Interests is in excess of $5.0 million, such value shall be determined by the Company's Board of Directors and evidenced by a resolution of the Board of Directors; and
(C) at least 75% of the consideration therefor received by the Company or such Restricted Subsidiary for such Asset Sale is not less than in the fair market value form of the assets sold evidenced by a resolution of the board of directors of such entity set forth in an Officers' Certificate delivered to the Holders and (y) the consideration received by the Company or the relevant Restricted Subsidiary in respect of such Asset Sale consists of at least 75% cash or Cash Equivalents (for Equivalents. For purposes of this clause (yc), cash and Cash Equivalents includes each of the following shall be deemed to be cash:
(A1) any liabilities (as reflected in shown on the Company's consolidated or such Restricted Subsidiary's most recent balance sheet) ), of the Company or any Restricted Subsidiary (other than contingent liabilities and liabilities that are by their terms subordinated to the Notes or any Guarantee) that are assumed by any the transferee of any such assets or other property in such Asset Sale, and where that otherwise cease to be liabilities of the Company or the relevant Restricted Subsidiary is released pursuant to a novation or other agreement that releases the Company or such Restricted Subsidiary from any further liability in connection therewith with respect to or such liabilities, agreement discharges or satisfies such liability; and
(B2) any securities, notes or other similar obligations received by the Company or any such Restricted Subsidiary from in connection with such transferee disposition that are (subject to ordinary settlement periods) converted within 180 days of the consummation of the related Asset Sale by the Company or such Restricted Subsidiary into cash and or Cash Equivalents (to the extent of the net cash proceeds or the Cash Equivalents (net of related costs) received upon such in that conversion) and within 180 days of the applicable Asset Sale. Notwithstanding the foregoing, the 75% limitation referred to in clause (Cc) shall not apply to any Designated Noncash Consideration received by the Company or any such Restricted Subsidiary in the Asset Sale having an aggregate fair market value, as determined by in which the Board of the Company, taken together with all other Designated Noncash Consideration received pursuant to this clause that is at that time outstanding, not to exceed the greater of:
(1) $10,000,000; and
(2) 15% of Consolidated Tangible Assets at the time of the receipt of such Designated Noncash Consideration (with the fair market value of each item of such Designated Noncash Consideration being measured at the time received and without giving effect to subsequent changes in value).
(ii) If the Company cash or any Restricted Subsidiary engages in an Asset Sale, the Company may, at its option, within 12 months after such Asset Sale, (1) apply all or a Cash Equivalents portion of the Net Cash Proceeds to the permanent reduction of amounts outstanding under the Credit Agreement (and to correspondingly reduce the commitmentsconsideration received therefrom, if any, with respect thereto) or to the permanent repayment of other Senior Indebtedness of the Company or a Restricted Subsidiary, provided that the repayment of any Indebtedness incurred under the Credit Agreement in connection with the acquisition of any Facility with the proceeds of any subsequent Sale and Leaseback Transaction relating to such Facility shall not be required to result in the permanent reduction of the amounts outstanding under the Credit Agreement or correspondingly permanently reduce the commitments thereunder, or (2) invest (or enter into a legally binding agreement to invest) all or a portion of such Net Cash Proceeds in properties and assets to replace the properties and assets that were the subject of the Asset Sale or in properties and assets that will be used in the businesses of the Company or its Restricted Subsidiaries, as the case may be, existing on the Closing Date or in businesses the same, similar or reasonably related thereto. If any such legally binding agreement to invest such Net Cash Proceeds is terminated, the Company may, within 90 days of such termination or within 12 months of such Asset Sale, whichever is later, invest such Net Cash Proceeds as provided in clause (1) or (2) (without regard to the parenthetical contained in such clause (2)) above. Pending the final application of any such Net Cash Proceeds, the Company may temporarily reduce revolving credit borrowings or otherwise invest such Net Cash Proceeds in a manner that is not prohibited by this Agreement. The amount of such Net Cash Proceeds not so used as set forth above in this paragraph shall constitute "Excess Proceeds."
(c) When the aggregate amount of Excess Proceeds exceeds $10,000,000, the Company will, within 30 days thereafter, make an offer to purchase (an "Excess Proceeds Offer") from all Holders of Notes on a pro rata basis, determined in accordance with the procedures set forth in this Agreement, the maximum principal amount (expressed as a multiple of $1,000) of Notes that may be purchased with the Excess Proceeds, at a purchase price in cash equal to 100% of the principal amount thereof, plus accrued interest, if any, to the date such offer to purchase is consummated. To the extent that the aggregate principal amount of Notes tendered pursuant to such offer to purchase is less than the Excess Proceeds, the Company may use such deficiency for general corporate purposes. If the aggregate principal amount of Notes validly tendered and not withdrawn by holders thereof exceeds the Excess Proceeds, the Notes to be purchased will be selected on a pro rata basis. Upon completion of such offer to purchase, the amount of Excess Proceeds will be reset to zero.
(iii) 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 Excess Proceeds Offer. To the extent that the provisions of any securities laws or regulations conflict with the Asset Sales provisions of this Agreement, the Company will comply with the applicable securities laws and regulations and will not be deemed to have breached its obligations under Section 5(j) of this Agreement by virtue of such conflict.foregoing provision,
Appears in 1 contract
Samples: Indenture (Advancepcs Research LLC)
Asset Sales. (ia) The Company shall will not, and shall will not permit any of its Restricted Subsidiary Subsidiaries to, engage in any consummate an Asset Sale unless unless:
(x1) the Company (or a Restricted Subsidiary, as the case may be) receives consideration at the time of the Asset Sale at least equal to the Fair Market Value (measured as of the date of the definitive agreement with respect to such Asset Sale) of the assets or Equity Interests issued or sold or otherwise disposed of; and
(2) at least 75% of the aggregate consideration received in the Asset Sale by the Company or such a Restricted Subsidiary for such Asset Sale is not less than in the fair market value form of the assets sold evidenced by a resolution of the board of directors of such entity set forth in an Officers' Certificate delivered to the Holders and (y) the consideration received by the Company or the relevant Restricted Subsidiary in respect of such Asset Sale consists of at least 75% cash or Cash Equivalents (for Equivalents. For purposes of this clause (y)2) only, cash and Cash Equivalents includes each of the following will be deemed to be cash:
(Aa) any liabilities (liabilities, as reflected in shown on the Company's ’s most recent consolidated balance sheet) , of the Company or any Restricted Subsidiary (other than contingent liabilities and liabilities that are by their terms subordinated to the Notes or any Note Guarantee) that are assumed by any the transferee of any such assets (or other property in such Asset Sale, and where an Affiliate thereof) pursuant to a customary novation or indemnity agreement that releases the Company or the relevant such Restricted Subsidiary is released from any or indemnifies against further liability in connection therewith with respect to such liabilities, liability;
(Bb) any securities, notes or other similar obligations received by the Company or any such Restricted Subsidiary from such transferee that are converted are, within 180 days of after the consummation of the related Asset Sale Sale, converted by the Company or such Restricted Subsidiary into cash and Cash Equivalents (cash, to the extent of the net cash proceeds received in that conversion;
(c) any Capital Stock or assets of the Cash Equivalents kind referred to in clause (net 2) or (4) of related costs) received upon such conversion) and Section 4.10(b);
(Cd) any Designated Noncash Non-cash Consideration received by the Company or any such Restricted Subsidiary in the such Asset Sale having an aggregate fair market value, as determined by the Board of the CompanyFair Market Value, taken together with all other Designated Noncash Non-cash Consideration received pursuant to this clause that is at that time outstanding, not to exceed the greater of:
(1) $10,000,000; and
(2) 15% of Consolidated Tangible Assets at the time of the receipt of such Designated Noncash Consideration (with the fair market value of each item of such Designated Noncash Consideration being measured at the time received and without giving effect to subsequent changes in value).
(ii) If the Company or any Restricted Subsidiary engages in an Asset Sale, the Company may, at its option, within 12 months after such Asset Sale, (1) apply all or a portion of the Net Cash Proceeds to the permanent reduction of amounts outstanding under the Credit Agreement (and to correspondingly reduce the commitments, if any, with respect thereto) or to the permanent repayment of other Senior Indebtedness of the Company or a Restricted Subsidiary, provided that the repayment of any Indebtedness incurred under the Credit Agreement in connection with the acquisition of any Facility with the proceeds of any subsequent Sale and Leaseback Transaction relating to such Facility shall not be required to result in the permanent reduction of the amounts outstanding under the Credit Agreement or correspondingly permanently reduce the commitments thereunder, or (2) invest (or enter into a legally binding agreement to invest) all or a portion of such Net Cash Proceeds in properties and assets to replace the properties and assets that were the subject of the Asset Sale or in properties and assets that will be used in the businesses of the Company or its Restricted Subsidiaries, as the case may be, existing on the Closing Date or in businesses the same, similar or reasonably related thereto. If any such legally binding agreement to invest such Net Cash Proceeds is terminated, the Company may, within 90 days of such termination or within 12 months of such Asset Sale, whichever is later, invest such Net Cash Proceeds as provided in clause (1) or (2) (without regard to the parenthetical contained in such clause (2)) above. Pending the final application of any such Net Cash Proceeds, the Company may temporarily reduce revolving credit borrowings or otherwise invest such Net Cash Proceeds in a manner that is not prohibited by this Agreement. The amount of such Net Cash Proceeds not so used as set forth above in this paragraph shall constitute "Excess Proceeds."
(c) When the aggregate amount of Excess Proceeds exceeds $10,000,000, the Company will, within 30 days thereafter, make an offer to purchase (an "Excess Proceeds Offer") from all Holders of Notes on a pro rata basis, in accordance with the procedures set forth in this Agreement, the maximum principal amount (expressed as a multiple of $1,000) of Notes that may be purchased with the Excess Proceeds, at a purchase price in cash equal to 100% of the principal amount thereof, plus accrued interest, if any, to the date such offer to purchase is consummated. To the extent that the aggregate principal amount of Notes tendered pursuant to such offer to purchase is less than the Excess Proceeds, the Company may use such deficiency for general corporate purposes. If the aggregate principal amount of Notes validly tendered and not withdrawn by holders thereof exceeds the Excess Proceeds, the Notes to be purchased will be selected on a pro rata basis. Upon completion of such offer to purchase, the amount of Excess Proceeds will be reset to zero.
(iii) 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 Excess Proceeds Offer. To the extent that the provisions of any securities laws or regulations conflict with the Asset Sales provisions of this Agreement, the Company will comply with the applicable securities laws and regulations and will not be deemed to have breached its obligations under Section 5(j) of this Agreement by virtue of such conflict.clause
Appears in 1 contract
Samples: Indenture (Diamondback Energy, Inc.)
Asset Sales. (ia) The Company shall not, and shall not permit any Restricted Subsidiary of the Subsidiaries to, engage in any cause or make an Asset Sale Sale, unless (x) the Company or any Subsidiary, as the case may be, receives consideration at the time of such Asset Sale at least equal to the Fair Market Value (as determined in good faith by the Company) of the assets sold or otherwise disposed of, (y) at least 75% of the consideration therefor received by the Company or such Restricted Subsidiary Subsidiary, as the case may be, is in the form of Cash Equivalents and (z) the aggregate Net Proceeds received for all such Asset Sale is Sales caused or made pursuant to this Section 4.06 shall not less than the fair market value of the assets sold evidenced by a resolution of the board of directors of such entity set forth exceed $25 million; provided that in an Officers' Certificate delivered to the Holders and (y) the consideration received by no event shall the Company or any of the relevant Restricted Subsidiary in respect of such Guarantors cause or make an Asset Sale consists of at least 75% cash any Material Intellectual Property to any Person other than the Company or Cash Equivalents any of the Guarantors; provided further that the amount of:
(for purposes of this clause (y), cash and Cash Equivalents includes (Ai) any liabilities (as reflected shown on the Company’s or a Subsidiary’s most recent balance sheet or in the Company's consolidated balance sheetnotes thereto) of the Company or any Restricted a Subsidiary (other than contingent liabilities and liabilities that are by their terms subordinated (either in payment or lien priority) to the Notes or any Guarantee) that are assumed by any the transferee of any such assets or other property in such Asset Sale, and where the Company that are otherwise cancelled or the relevant Restricted Subsidiary is released from any further liability terminated in connection therewith with respect to the transaction with such liabilities, transferee;
(Bii) any securities, notes or other similar obligations Obligations or other securities or assets received by the Company or any such Restricted Subsidiary from such transferee that are converted by the Company or such Subsidiary into cash within 180 days of the consummation of the related Asset Sale by the Company or such Restricted Subsidiary into cash and Cash Equivalents receipt thereof (to the extent of the net cash proceeds received);
(iii) Indebtedness of any Subsidiary that is no longer a Subsidiary as a result of such Asset Sale, to the extent that the Company and each other Subsidiary are released from any guarantee of payment of such Indebtedness in connection with the Asset Sale; and
(iv) consideration consisting of Indebtedness of the Company or any Guarantor (other than Subordinated Indebtedness) received after the Issue Date from Persons who are not the Company or any Subsidiary; shall be deemed to be Cash Equivalents for the purposes of this Section 4.06(a).
(net of related costsb) received upon such conversion) and (C) any Designated Noncash Consideration Any Net Proceeds received by the Company or any such Restricted Subsidiary from Asset Sales after the Issue Date in the Asset Sale having an aggregate fair market value, as determined by the Board excess of the Company, taken together with $10 million (for all other Designated Noncash Consideration received pursuant to this clause that is at that time outstanding, not to exceed the greater of:
(1) $10,000,000; and
(2) 15% of Consolidated Tangible Assets at the time of the receipt of such Designated Noncash Consideration (with the fair market value of each item of such Designated Noncash Consideration being measured at the time received and without giving effect to subsequent changes in value).
(ii) If the Company or any Restricted Subsidiary engages in an Asset Sale, the Company may, at its option, within 12 months after such Asset Sale, (1Sales) apply all or a portion of the Net Cash Proceeds to the permanent reduction of amounts outstanding under the Credit Agreement (and to correspondingly reduce the commitments, if any, with respect thereto) or to the permanent repayment of other Senior Indebtedness of the Company or a Restricted Subsidiary, provided that the repayment of any Indebtedness incurred under the Credit Agreement in connection with the acquisition of any Facility with the proceeds of any subsequent Sale and Leaseback Transaction relating to such Facility shall not be required to result in the permanent reduction of the amounts outstanding under the Credit Agreement or correspondingly permanently reduce the commitments thereunder, or (2) invest (or enter into a legally binding agreement to invest) all or a portion of such Net Cash Proceeds in properties and assets to replace the properties and assets that were the subject of the Asset Sale or in properties and assets that will be used in the businesses of the Company or its Restricted Subsidiaries, as the case may be, existing on the Closing Date or in businesses the same, similar or reasonably related thereto. If any such legally binding agreement deemed to invest such Net Cash Proceeds is terminated, the Company may, within 90 days of such termination or within 12 months of such Asset Sale, whichever is later, invest such Net Cash Proceeds as provided in clause (1) or (2) (without regard to the parenthetical contained in such clause (2)) above. Pending the final application of any such Net Cash Proceeds, the Company may temporarily reduce revolving credit borrowings or otherwise invest such Net Cash Proceeds in a manner that is not prohibited by this Agreement. The amount of such Net Cash Proceeds not so used as set forth above in this paragraph shall constitute "“Excess Proceeds."
(c) ” When the aggregate amount of Excess Proceeds equals or exceeds $10,000,000the Excess Proceeds Threshold Amount, the Company will, within 30 days thereafter, shall make an offer to purchase all holders of the Notes (and, at the option of the Company, to holders of any First Lien Priority Indebtedness that the Company is required to offer to repurchase or otherwise prepay with the proceeds of Asset Sales pursuant to the terms of the documentation governing such First Lien Priority Indebtedness (“Other Applicable Indebtedness”)) (an "“Asset Sale Offer”) to purchase the maximum principal amount of Notes (and such Other Applicable Indebtedness), that is at least $1.00 and an integral multiple of $1.00 in excess thereof that may be purchased out of the Excess Proceeds Offer") from all Holders at an offer price in cash in an amount equal to 100% of the principal amount thereof (or, in the event the Notes on a pro rata basisor Other Applicable Indebtedness were issued with significant original issue discount, 100% of the accreted value thereof), plus accrued and unpaid interest (or, in respect of such Other Applicable Indebtedness, such lesser price, if any, as may be provided for by the terms of such Other Applicable Indebtedness), to, but excluding, the date fixed for the closing of such offer, in accordance with the procedures set forth in this AgreementIndenture. The Company will commence an Asset Sale Offer with respect to Excess Proceeds within ten (10) Business Days after the date that Excess Proceeds equals or exceeds the Excess Proceeds Threshold Amount by mailing, or delivering electronically if held by the Depository, the maximum principal amount (expressed as a multiple of $1,000) of Notes that may be purchased with the Excess Proceeds, at a purchase price in cash equal to 100% of the principal amount thereof, plus accrued interest, if any, notice required pursuant to the date such offer terms of this Indenture, with a copy to purchase is consummatedthe Trustee. To the extent that the aggregate principal amount of Notes (and such Other Applicable Indebtedness) tendered pursuant to such offer to purchase an Asset Sale Offer is less than the Excess Proceeds, the Company may use such deficiency any remaining Excess Proceeds for general corporate purposesany purpose that is not prohibited by this Indenture. If the aggregate principal amount of Notes validly tendered (and not withdrawn such Other Applicable Indebtedness) surrendered by holders thereof exceeds the amount of Excess Proceeds, the Notes to be purchased will shall be selected on a pro rata basisin the manner described in Section 4.06(e). Upon completion of any such offer to purchaseAsset Sale Offer, the amount of Excess Proceeds will shall be reset to at zero.
(iiic) The Company will comply comply, to the extent applicable, with the requirements of Rule 14e-1 under the Exchange Act and any other securities laws and regulations thereunder to the extent such laws and or regulations are applicable in connection with each the repurchase of the Notes pursuant to an Excess Proceeds Asset Sale Offer. To the extent that the provisions of any securities laws or regulations conflict with the Asset Sales provisions of this AgreementIndenture, the Company will comply with the applicable securities laws and regulations and will shall not be deemed to have breached its obligations under described in this Indenture by virtue thereof.
(d) Not later than the date upon which written notice of an Asset Sale Offer is delivered to the holders of Notes and the Trustee as provided above, the Company shall deliver to the Trustee an Officer’s Certificate as to (i) the amount of the Excess Proceeds, (ii) the allocation of the Net Proceeds from the Asset Sales pursuant to which such Asset Sale Offer is being made and (iii) the compliance of such allocation with the provisions of Section 5(j4.06(b). On such date, the Company shall also irrevocably deposit with the Trustee or with the Paying Agent (or, if the Company or a Subsidiary is acting as the Paying Agent, segregate and hold in trust) an amount equal to the Excess Proceeds to be invested in Cash Equivalents offered for investment by the Trustee or Paying Agent (or its applicable bank), as directed in writing by the Company and to be held for payment in accordance with the provisions of this Agreement 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 Notes or portions thereof that have been properly tendered to and are to be accepted by virtue the Company. The Trustee (or the Paying Agent, if not the Trustee) shall, on the date of purchase, mail or deliver payment to each tendering holder in the amount of the purchase price. In the event that the Excess Proceeds delivered by the Company to the Trustee are greater than the purchase price of the Notes tendered, the Trustee shall deliver the excess to the Company immediately after the expiration of the Offer Period for application in accordance with this Section 4.06. Any amounts for which an written investment direction is not delivered will remain uninvested, without any liability for interest thereon.
(e) Holders electing to have a Note purchased shall be required to surrender such Note, with an appropriate form duly completed, to the Company at the address specified in the notice at least three Business Days prior to the purchase date. Holders shall be entitled to withdraw their election if the Company receives (with a copy to the Trustee) not later than one Business Day prior to the purchase date, a telegram, telex, facsimile transmission or letter setting forth the name of the holder, the principal amount of the Note which was delivered by the holder for purchase and a statement that such xxxxxx is withdrawing his election to have such Note purchased. If at the end of the Offer Period more Notes (and such First Lien Priority Indebtedness) are tendered pursuant to an Asset Sale Offer than the Company is required to purchase, selection of the amount of Notes in respect of which an Asset Sale Offer was made shall be selected (i) in the case of Global Notes, in accordance with the applicable procedures of the Depositary or (ii) in the case of Definitive Notes, by the Company on a pro rata basis to the extent practicable, by lot or by such other method as the Company shall deem fair and appropriate; provided that no Notes of $1.00 or less shall be purchased in part. Holders whose Notes are purchased only in part shall be issued new Notes equal in principal amount to the unpurchased portion of the Notes surrendered. Selection of such conflictFirst Lien Priority Indebtedness shall be made pursuant to the terms of such First Lien Priority Indebtedness.
(f) Notices of an Asset Sale Offer shall be mailed by the Company by first class mail, postage prepaid, or delivered electronically if held by the Depository, at least 10 but not more than 60 days before the purchase date to each holder of the Notes at such holder’s registered address. If any Note is to be purchased in part only, any notice of purchase that relates to such Note shall state the portion of the principal amount thereof that has been or is to be purchased.
Appears in 1 contract
Samples: Indenture (TheRealReal, Inc.)
Asset Sales. (a) With respect to all Asset Sales not involving Collateral:
(i) The Company shall not, and shall not permit any of its Restricted Subsidiary Subsidiaries to, engage in any consummate an Asset Sale unless involving assets or Equity Interests other than Collateral unless:
(xA) the Company or any of its Restricted Subsidiaries receives consideration at the time of the Asset Sale at least equal to the Fair Market Value of the assets or Equity Interests issued or sold or otherwise disposed of; and
(B) at least 75% of the consideration received in the Asset Sale by the Company or such Restricted Subsidiary for such Asset Sale is not less than in the fair market value form of the assets sold evidenced by a resolution of the board of directors of such entity set forth in an Officers' Certificate delivered to the Holders and (y) the consideration received by the Company or the relevant Restricted Subsidiary in respect of such Asset Sale consists of at least 75% cash or Cash Equivalents Equivalents.
(for ii) For purposes of this clause (ySection 6.5(a)(i), cash and Cash Equivalents includes each of the following shall be deemed to be cash:
(A) any liabilities (Indebtedness or other liabilities, as reflected in shown on the Company's ’s most recent consolidated balance sheet) sheet or the notes thereto, of the Company or any of its Restricted Subsidiary Subsidiaries (other than contingent liabilities and liabilities that are by their terms expressly subordinated to the Notes Loans or any Guarantee) that are assumed assumed, repaid or retired by any the transferee (or a third party on behalf of the transferee) of any such assets or other property in such Asset Sale, and where the Company or the relevant Restricted Subsidiary is released from any further liability in connection therewith with respect to such liabilities, assets;
(B) any securities, notes or other similar obligations received by the Company or any such Restricted Subsidiary from such transferee or any other Person on account of such Asset Sale that are converted are, within 180 days of the consummation of the related Asset Sale Sale, converted, sold or exchanged by the Company or such Restricted Subsidiary into cash and or Cash Equivalents (Equivalents, to the extent of the net cash proceeds or the Cash Equivalents received in that conversion, sale or exchange;
(net C) the Fair Market Value of related costs(I) any assets (other than securities and other than assets that are classified as current assets under GAAP) received by the Company or any Restricted Subsidiary to be used by it in a Permitted Business (including, without limitation, Vessels and Related Assets), (ii) Capital Stock 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 acquisition of such conversionPerson by the Company or (III) a combination of (I) and (CII); and
(D) any Designated Noncash Non-cash Consideration received by the Company or any such Restricted Subsidiary in the such Asset Sale having an aggregate fair market value, as determined by the Board of the CompanyFair Market Value, taken together with all other Designated Noncash Non-cash Consideration received pursuant to this clause Section 6.5 (a)(ii) that is at that time outstanding, not to exceed the greater of:
of (1x) $10,000,000; and
50,000,000 and (2y) 156.0% of Consolidated Total Tangible Assets of the Company at the time of the receipt of such Designated Noncash Consideration (Non-cash Consideration, with the fair market value Fair Market Value of each item of such Designated Noncash Non-cash Consideration being measured at the time received and without giving effect to subsequent changes in value.
(iii) Within 365 days (subject to extensions as provided in clause (iv) below) after the receipt of any Net Proceeds from an Asset Sale involving assets other than Collateral, the Company or any of its Restricted Subsidiaries shall apply such Net Proceeds to:
(A) repay or prepay any and all obligations under the Credit Facilities or any other Secured Indebtedness and, if the Indebtedness repaid is revolving credit Indebtedness, to correspondingly reduce commitments with respect thereto;
(B) acquire all or substantially all of the assets of, or any Capital Stock of, a Person engaged in a Permitted Business; provided that in the case of acquisition of Capital Stock of any Person, such Person is or becomes a Restricted Subsidiary of the Company;
(C) make a capital expenditure;
(D) acquire other assets that are not classified as current assets under GAAP and that are used or useful in a Permitted Business (including, without limitation, Vessels and Related Assets);
(E) prepay Loans in accordance with Section 2.5; and/or
(F) any combination of the transactions permitted by the foregoing clauses (A) through (E).
(iiiv) If A (A) binding contract to apply Net Proceeds in accordance with clauses (iii)(B) through (D) above shall toll the 365-day period in respect of such Net Proceeds or (B) determination by the Company or any Restricted Subsidiary engages in an Asset Sale, the Company may, at its option, within 12 months after such Asset Sale, (1) to potentially apply all or a portion of the Net Cash Proceeds to the permanent reduction of amounts outstanding under the Credit Agreement (and to correspondingly reduce the commitments, if any, with respect thereto) or to the permanent repayment of other Senior Indebtedness of the Company or a Restricted Subsidiary, provided that the repayment of any Indebtedness incurred under the Credit Agreement in connection with the acquisition of any Facility with the proceeds of any subsequent Sale and Leaseback Transaction relating to such Facility shall not be required to result in the permanent reduction of the amounts outstanding under the Credit Agreement or correspondingly permanently reduce the commitments thereunder, or (2) invest (or enter into a legally binding agreement to invest) all or a portion of such Net Cash Proceeds towards the exercise of an outstanding Vessel Purchase Option Contract shall toll the 365-day period in properties and assets respect of such Net Proceeds, in each case, for a period not to replace exceed 365 days from the properties and assets that were the subject expiration of the Asset Sale aforementioned 365-day period, provided that such binding contract and such determination, in each case, shall be treated as a permitted application of Net Proceeds from the date of such binding contract until and only until the earlier of (x) the date on which such acquisition or in properties expenditure is consummated and assets that will be used (y) (i) in the businesses case of any Vessel Construction Contract or any Exercised Vessel Purchase Option Contract (including any outstanding Vessel Purchase Option Contract exercised during the 365 day period referenced in clause (B) above), the date of expiration or termination of such Vessel Construction Contract or Exercised Vessel Purchase Option Contract and (ii) otherwise, the 365th day following the expiration of the aforementioned 365-day period (clause (i) or clause (ii) as applicable, the “Reinvestment Termination Date”). If such acquisition or expenditure is not consummated on or before the Reinvestment Termination Date and the Company (or its the applicable Restricted SubsidiariesSubsidiary, as the case may be, existing on the Closing Date or in businesses the same, similar or reasonably related thereto. If any such legally binding agreement to invest ) shall not have applied such Net Cash Proceeds is terminatedpursuant to clauses (iii)(B) through (D) above on or before the Reinvestment Termination Date, such binding contract shall be deemed not to have been a permitted application of the Company may, within 90 days of such termination or within 12 months of such Asset Sale, whichever is later, invest such Net Cash Proceeds as provided in clause Proceeds.
(1v) or (2) (without regard to the parenthetical contained in such clause (2)) above. Pending the final application of any such Net Cash Proceeds, the Company or any of its Restricted Subsidiaries may temporarily reduce revolving credit borrowings outstanding Indebtedness or otherwise invest such the Net Cash Proceeds in a any manner that is not prohibited by this Agreement. .
(vi) Any Net Proceeds from Asset Sales involving assets other than Collateral that are not applied or invested as provided in Section 6.5(a)(iii) shall be applied to prepay the Loans in accordance with Section 2.6(c).
(b) The amount Company shall not, and shall not permit any of its Restricted Subsidiaries to, consummate an Asset Sale involving Collateral unless:
(i) the Company or any of its Restricted Subsidiaries receives consideration at the time of the Asset Sale at least equal to the Fair Market Value of the assets or Equity Interests sold or otherwise disposed of;
(ii) such Asset Sale is either of (1) the Company’s or the relevant Restricted Subsidiary’s entire interest in the applicable Mortgaged Vessel (the “Sold Mortgaged Vessel”) together with the applicable Charters, freights and hires, insurance and related agreements (collectively, the “Related Agreements”); provided that the Company may elect to sell only the Sold Mortgaged Vessel and retain all or any portion of the Related Agreements, provided that if any such Related Agreements are transferred to a Subsidiary that is not a Mortgaged Vessel Guarantor, then the Company or such Mortgaged Vessel Guarantor shall receive either (x) Qualified Collateral having a Fair Market Value that is not less than the Fair Market Value of such Related Agreements or (y) cash in an amount equal to the Fair Market Value of such Related Agreement which it shall immediately deliver to the Administrative Agent, which amounts shall constitute Cash Collateral hereunder or (2) all the Capital Stock of the Restricted Subsidiary that owns such Mortgaged Vessel and related assets;
(iii) the consideration received in the Asset Sale by the Company or such Restricted Subsidiary consists entirely of either (x) cash or Cash Equivalents or (y) Qualified Collateral having a Fair Market Value that is not less than the Fair Market Value of the Collateral that is the subject of such Asset Sale;
(iv) no Default or Event of Default shall have occurred and be continuing;
(v) with respect to any consideration consisting of Qualified Collateral in the form of a Vessel, the Company shall have complied with Section 10.22; and
(vi) whenever Net Proceeds from any Asset Sale involving Collateral are received by the Company, such Net Proceeds shall be retained by the Administrative Agent as Cash Proceeds not so used Collateral constituting Collateral subject to disposition as set forth above provided in this paragraph shall constitute "Excess ProceedsSection 6.5(b) or as provided under Sections 10.22 and 2.6(c). At the written direction of the Company, such Net Proceeds may be invested by the Administrative Agent in Cash Equivalents in which the Administrative Agent can maintain a perfected security interest."
(c) When Within 365 days (subject to extension as provided in clause (d) below) after the aggregate amount receipt of Excess any Net Proceeds exceeds $10,000,000from an Asset Sale involving Collateral, the Company willor the applicable Restricted Subsidiary shall apply such Net Proceeds to:
(A) provided that no Default or Event of Default shall have occurred and be continuing, within 30 days thereafter, substitute one or more Qualified Vessels (and to make an offer any Permitted Repairs with respect thereto) for such Sold Mortgaged Vessel and make such Qualified Vessel(s) subject to purchase (an "Excess Proceeds Offer") from all Holders the Lien of Notes on a pro rata basis, the applicable Security Documents in accordance with the procedures set forth provisions thereof described under Section 10.22 and Section 5.9 (b);
(B) prepay Loans in this Agreement, the maximum principal amount accordance with Section 2.5; and/or
(expressed as a multiple of $1,000C) of Notes that may be purchased with the Excess Proceeds, at a purchase price in cash equal to 100% any combination of the principal amount thereof, plus accrued interest, if any, to transactions permitted by the date such offer to purchase is consummated. To the extent that the aggregate principal amount of Notes tendered pursuant to such offer to purchase is less than the Excess Proceeds, the Company may use such deficiency for general corporate purposes. If the aggregate principal amount of Notes validly tendered foregoing clauses (A) and not withdrawn by holders thereof exceeds the Excess Proceeds, the Notes to be purchased will be selected on a pro rata basis. Upon completion of such offer to purchase, the amount of Excess Proceeds will be reset to zero(B).
(iiid) The A (A) binding contract to apply Net Proceeds in accordance with clause (b)(1) above will toll the 365-day period in respect of such Net Proceeds or (B) determination by the Company to potentially apply all or a portion of such Net Proceeds towards the exercise of an outstanding Vessel Purchase Option Contract will comply with toll the requirements 365-day period in respect of Rule 14e-1 under such Net Proceeds, in each case, for a period not to exceed 365 days from the Exchange Act expiration of the aforementioned 365-day period, provided that such binding contract and such determination, in each case, shall be treated as a permitted application of Net Proceeds from the date of such binding contract until and only until the earlier of (x) the date on which such acquisition or expenditure is consummated and (y) (i) in the case of any other securities laws Vessel Construction Contract or any Exercised Vessel Purchase Option Contract (including any outstanding Vessel Purchase Option Contract exercised during the 365 day period referenced in clause (c) above), the date of expiration or termination of such Vessel Construction Contract or Exercised Vessel Purchase Option Contract and regulations thereunder to (ii) otherwise, the extent 365th day following the expiration of the aforementioned 365-day period (clause (i) or clause (ii) as applicable, the “Collateral Proceeds Reinvestment Termination Date”). If such laws acquisition or expenditure is not consummated on or before the Collateral Proceeds Reinvestment Termination Date and regulations are the Company (or the applicable in connection with each repurchase of Notes Mortgaged Vessel Guarantor, as the case may be) shall not have applied such Net Proceeds pursuant to an Excess clause (c)(A) above on or before the Collateral Proceeds Offer. To Reinvestment Termination Date, such binding contract shall be deemed not to have been a permitted application of the extent that the provisions of any securities laws or regulations conflict with the Net Proceeds.
(e) Any Net Proceeds from Asset Sales provisions of this Agreement, involving Collateral that are not applied or invested as provided in Section 6.5(c) shall be applied to prepay the Company will comply Loans in accordance with the applicable securities laws and regulations and will not be deemed to have breached its obligations under Section 5(j) of this Agreement by virtue of such conflict2.6(c).
Appears in 1 contract
Samples: Credit Agreement
Asset Sales. (ia) The Company shall will not, and shall will not permit any of its Restricted Subsidiary Subsidiaries to, engage in any consummate an Asset Sale unless unless:
(x1) the consideration received by the Company or such the applicable Restricted Subsidiary for 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 or prior to the time of such Asset Sale is not less than at least equal to the fair market value (measured as of the date of the definitive agreement with respect to such Asset Sale) of the assets sold evidenced or otherwise disposed of (as determined in good faith by a resolution the Company’s Board of Directors if the board fair market value is $10.0 million or more);
(2) at least 75% of directors of such entity set forth in an Officers' Certificate delivered to the Holders and (y) the consideration received by the Company or the relevant Restricted Subsidiary in respect of Subsidiary, as the case may be, from such Asset Sale consists shall be in the form of at least 75% cash or Cash Equivalents (for and shall be received at or prior to the time of such disposition. For purposes of this clause (y2), cash and Cash Equivalents includes each of the following shall be deemed to be cash:
(Ai) any liabilities (liabilities, as reflected in the Company's most recent consolidated balance sheetsheet (or in the notes thereto) of the Company or any Restricted Subsidiary (or would be reflected on such consolidated balance sheet (or in the notes thereto) as of the date of such Asset Sale), other than contingent liabilities and liabilities that are by their terms subordinated to the Notes or any GuaranteeNote Guarantee or (ii) any Guarantees of Indebtedness of Persons other than the Company or any Restricted Subsidiary, in each case, that are assumed by any transferee of any the Person acquiring such assets or other property in such Asset Sale, and where to the extent that the Company or the relevant and its Restricted Subsidiary is released from any Subsidiaries have no further liability in connection therewith with respect to such liabilities, ;
(B) any securities, notes or other similar obligations received by the Company or any such Restricted Subsidiary from such transferee that are converted within 180 days of the consummation of the related Asset Sale by the Company or such Restricted Subsidiary into cash and or Cash Equivalents (to the extent of the net cash proceeds or the Cash Equivalents (net of related costsreceived) received upon such conversion) and within 270 days after receipt; and
(C) any Designated Noncash Non-Cash Consideration received by the Company or any its Restricted Subsidiaries in such Restricted Subsidiary in the Asset Sale having an aggregate fair market value, as determined by the Board of the CompanyFair Market Value, taken together with all other Designated Noncash Non-Cash Consideration received pursuant to this clause (C) that is at that time outstanding, in the aggregate, not to exceed the greater of:
(1) of $10,000,000; and
(2) 1525.0 million and 3.0% of Consolidated Tangible Total Assets at the time of the receipt of such Designated Noncash Consideration (Non-Cash Consideration, with the fair market value Fair Market Value of each item of such Designated Noncash Non-Cash Consideration being measured at the time received and without giving effect to subsequent changes in value).;
(ii3) If upon the Company or any Restricted Subsidiary engages in consummation of an Asset Sale, the Company mayshall apply, at its optionor cause such Restricted Subsidiary to apply, within 12 months after such Asset Sale, (1) apply all or a portion of the Net Cash Proceeds relating to the permanent reduction such Asset Sale within 365 days of amounts outstanding under the Credit Agreement receipt thereof either:
(and A) to correspondingly reduce the commitments, if any, with respect thereto(x) or to the permanent repayment of other Senior repay Indebtedness of the Company or a and its Restricted Subsidiary, provided that Subsidiaries under any Credit Facility and in the repayment case of any such Indebtedness incurred under any revolving credit facility effect a permanent reduction in the availability under such revolving credit facility (provided, however, that, if there shall not be any term loan indebtedness outstanding under any Credit Agreement Facility, in connection with the acquisition case of such Indebtedness under any Facility with the proceeds of any subsequent Sale and Leaseback Transaction relating to revolving credit facility such Facility prepayment shall not be required to result effect a permanent reduction in the permanent reduction availability under such revolving credit facility), (y) repay or reduce Indebtedness of a Restricted Subsidiary of the amounts outstanding under Company that does not guarantee the Credit Agreement or correspondingly permanently reduce the commitments thereunder, Notes or (2z) invest repay indebtedness secured in whole or in part by the assets or Capital Stock sold in such Asset Sale;
(B) to acquire or enter into a legally binding agreement to invest) all or a portion of such Net Cash Proceeds make an investment in properties and or assets to that replace the properties and assets that were the subject of the such Asset Sale or make an investment in properties or assets (including Capital Stock) that will be used or are useful, in the good faith judgment of the Board of Directors of the Company, in the business of the Company and its Restricted Subsidiaries as they are engaged in on the Issue Date or in businesses reasonably related, incidental, ancillary or complimentary thereto (“Replacement Assets”) or to make capital expenditures with respect to properties or assets that are used in or will be used in the businesses business of the Company or its any Restricted SubsidiariesSubsidiary; provided that, as in the case may beof this clause (B), existing on the Closing Date or in businesses the same, similar or reasonably related thereto. If any such legally a binding agreement to invest such Net Cash Proceeds is terminated, the Company may, commitment within 90 365 days of such termination or within 12 months the date of such Asset Sale, whichever is later, invest such Net Cash Proceeds as provided in clause (1) or (2) (without regard to the parenthetical contained in such clause (2)) above. Pending the final application of any such Net Cash Proceeds, the Company may temporarily reduce revolving credit borrowings or otherwise invest such Net Cash Proceeds in a manner that is not prohibited by this Agreement. The amount receipt of such Net Cash Proceeds not shall be treated as a permanent application of the Net Cash Proceeds from the date of such commitment so used long as set forth above the Company or such other Restricted Subsidiary enters into such commitment with the good faith expectation that such Net Cash Proceeds will be applied to satisfy such commitment within 180 days of such commitment (an “Acceptable Commitment”) and, in this paragraph shall constitute "Excess Proceeds."
(c) When the aggregate amount of Excess event that any Acceptable Commitment is later cancelled or terminated for any reason before such Net Cash Proceeds exceeds $10,000,000are applied, the Company willor such other 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 Cash Proceeds are applied, then such Net Cash Proceeds shall constitute part of the Net Proceeds Offer Amount if not otherwise applied as provided above within 30 365 days thereafterof the receipt of such Net Cash Proceeds; or
(C) a combination of prepayment and investment permitted by the foregoing clauses (3)(A) and (3)(B).
(b) Subject to Section 4.10(c), if any Net Cash Proceeds have not been applied as provided in clauses (3)(A), (3)(B) and (3)(C) of Section 4.10(a) within the applicable time period or the last provision of this sentence, such Net Cash Proceeds shall be applied by the Company or such Restricted Subsidiary to make an offer to purchase (an "Excess the “Net Proceeds Offer"”) to all Holders and, to the extent required by the terms of any Pari Passu Indebtedness, to holders of such Pari Passu Indebtedness, on a date (the “Net Proceeds Offer Payment Date”) not less than 30 nor more than 60 days following the date that triggered the Company’s obligation to make such Net Proceeds Offer, from all Holders (and holders of Notes any such Pari Passu Indebtedness) on a pro rata basisbasis based upon the respective outstanding aggregate principal amounts (or accreted value, in accordance with as applicable) of the procedures set forth in this AgreementNotes and Pari Passu Indebtedness on the date the Net Proceeds Offer is made, the maximum principal amount (expressed or accreted value, as a multiple of $1,000applicable) of Notes and Pari Passu Indebtedness that may be purchased with the Excess Proceeds, Net Proceeds Offer Amount at a purchase price in cash equal to 100% of the principal amount thereof(or accreted value, as applicable) of the Notes and Pari Passu Indebtedness to be purchased, plus accrued interestand unpaid interest thereon, if any, to but excluding the date of purchase; provided, however, that if at any time any non-cash consideration received by the Company or any Restricted Subsidiary of the Company, as the case may be, in connection with any Asset Sale is converted into or sold or otherwise disposed of for cash (other than interest received with respect to any such offer non-cash consideration), then such conversion or disposition shall be deemed to purchase constitute an Asset Sale hereunder and the Net Cash Proceeds thereof shall be applied in accordance with this Section 4.10.
(c) The Company may make a Net Proceeds Offer at any time and from time to time in advance of its obligation to make a Net Proceeds Offer pursuant to Section 4.10(b). The Company may also defer any Net Proceeds Offer until there is consummatedan aggregate unutilized Net Proceeds Offer amount equal to or in excess of $25.0 million resulting from one or more Asset Sales (at which time, the entire unutilized Net Proceeds Offer amount, and not just the amount in excess of $25.0 million, shall be applied as required pursuant to this paragraph). Upon completion of each Net Proceeds Offer, the amount of unutilized Net Proceeds Offer amount will be reset at zero.
(d) In the event of the transfer of substantially all (but not all) of the property and assets of the Company and its Restricted Subsidiaries as an entirety to a Person in a transaction permitted under Section 5.01, which transaction does not constitute a Change of Control, the Surviving Entity shall be deemed to have sold the properties and assets of the Company and its Restricted Subsidiaries not so transferred for purposes of this Section 4.10 and shall comply with the provisions of this Section 4.10 with respect to such deemed sale as if it were an Asset Sale. In addition, the fair market value of such properties and assets of the Company or its Restricted Subsidiaries deemed to be sold shall be deemed to be Net Cash Proceeds for purposes of this Section 4.10.
(e) Notwithstanding Sections 4.10(a) and 4.10(b), the Company and its Restricted Subsidiaries will be permitted to consummate an Asset Sale without complying with such sections to the extent that:
(1) at least 75% of the consideration for such Asset Sale constitutes Replacement Assets; and
(2) such Asset Sale is for fair market value; provided that any consideration not constituting Replacement Assets received by the Company or any of its Restricted Subsidiaries in connection with any Asset Sale permitted to be consummated under this Section 4.10(e) shall constitute Net Cash Proceeds subject to the provisions of Sections 4.10(a) and 4.10(b).
(f) Each Net Proceeds Offer will be sent to the record Holders as shown on the register of Holders within 25 days following the date triggering the Company obligation to make such Net Proceeds Offer, with a copy to the Trustee, and shall comply with the procedures set forth in this Indenture. Upon receiving notice of the Net Proceeds Offer, Holders may elect to tender their Notes in whole or in part in integral multiples of $2,000 in exchange for cash. To the extent that Holders properly tender Notes in an amount exceeding the aggregate principal amount pro rata portion of Notes tendered pursuant the Net Proceeds Offer Amount applicable to such offer to purchase is less than the Excess ProceedsNotes, the Company may use such deficiency for general corporate purposes. If tendered Notes will be purchased in accordance with the aggregate principal amount of Notes validly tendered and not withdrawn by holders thereof exceeds the Excess Proceeds, Applicable Procedures if the Notes to be purchased will be selected are in global form or, if there are no such Applicable Procedures, on a pro rata basisbasis (based on amounts tendered). Upon completion A Net Proceeds Offer shall remain open for a period of at least 20 Business Days or such offer to purchase, the amount of Excess Proceeds will longer period as may be reset to zerorequired by law.
(iiig) 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 the repurchase of Notes pursuant to an Excess a Net Proceeds Offer. To the extent that the provisions of any securities laws or regulations conflict with the Asset Sales provisions of this AgreementSection 4.10, the Company will shall comply with the applicable securities laws and regulations and will shall not be deemed to have breached its obligations under this Section 5(j) of this Agreement 4.10 by virtue of such conflictthereof.
Appears in 1 contract
Samples: Indenture (Carriage Services Inc)
Asset Sales. (ia) The Company Parent shall not, and shall not permit any of the Restricted Subsidiary Subsidiaries to, engage in any cause or make an Asset Sale Sale, unless (x) the Parent or any Restricted Subsidiary, as the case may be, receives consideration received by at the Company or such Restricted Subsidiary for time of such Asset Sale is not less than at least equal to the fair market value Fair Market Value (as determined in good faith by the Parent) of the assets sold evidenced by a resolution of the board of directors of such entity set forth in an Officers' Certificate delivered to the Holders or otherwise disposed of, and (y) the consideration received by the Company or the relevant Restricted Subsidiary in respect of such Asset Sale consists of at least 75% cash of the consideration therefor received by the Parent or such Restricted Subsidiary, as the case may be, is in the form of Cash Equivalents Equivalents; provided that the amount of:
(for purposes of this clause (y), cash and Cash Equivalents includes (Ai) any liabilities (as reflected shown on the Parent’s or a Restricted Subsidiary’s most recent balance sheet or in the Company's consolidated balance sheetnotes thereto) of the Company Parent or any a Restricted Subsidiary (other than contingent liabilities and liabilities that are by their terms subordinated to the Notes or any Guarantee) that are assumed by any the transferee of any such assets or other property in such Asset Sale, and where the Company that are otherwise cancelled or the relevant Restricted Subsidiary is released from any further liability terminated in connection therewith with respect to the transaction with such liabilities, transferee,
(Bii) any securities, notes or other similar obligations or other securities or assets received by the Company Parent or any such Restricted Subsidiary from such transferee that are converted within 180 days of the consummation of the related Asset Sale by the Company Parent or such Restricted Subsidiary into cash and Cash Equivalents within 180 days of the receipt thereof (to the extent of the net cash proceeds or received),
(iii) Indebtedness of any Restricted Subsidiary that is no longer a Restricted Subsidiary as a result of such Asset Sale, to the Cash Equivalents extent that the Parent and each other Restricted Subsidiary are released from any guarantee of payment of such Indebtedness in connection with the Asset Sale,
(net iv) consideration consisting of related costsIndebtedness of the Parent (other than Subordinated Indebtedness) received upon such conversionafter the Issue Date from Persons who are not the Parent or any Restricted Subsidiary, and
(v) and (C) except in the case of an Asset Sale of Specified Cash Flow Priority Collateral, any Designated Noncash Non-cash Consideration received by the Company Parent or any such Restricted Subsidiary in the such Asset Sale having an aggregate fair market value, Fair Market Value (as determined in good faith by the Board of the CompanyParent), taken together with all other Designated Noncash Non-cash Consideration received pursuant to this clause Section 4.06(a)(v) that is at that time outstanding, not to exceed the greater of:
(1) of $10,000,000; and
(2) 1535.0 million and 1.0% of Consolidated Tangible Total Assets at the time of the receipt of such Designated Noncash Non-cash Consideration (with the fair market value Fair Market Value of each item of such Designated Noncash Non-cash Consideration being measured at the time received and without giving effect to subsequent changes in value), shall be deemed to be Cash Equivalents for the purposes of this Section 4.06(a).
(b) Within 365 days after the Parent’s or any Restricted Subsidiary’s receipt of the Net Proceeds of any Asset Sale, the Parent or such Restricted Subsidiary may apply the Net Proceeds from such Asset Sale, at its option:
(i) to repay (i) to the extent such Net Proceeds constitute proceeds from the sale of ABL Priority Collateral, obligations under the ABL Credit Agreement, (ii) to the extent such Net Proceeds constitute proceeds from the sale of Cash Flow Priority Collateral, Obligations under the Notes or under Additional Cash Flow Obligations (and, if the Indebtedness repaid is revolving credit Indebtedness, to correspondingly permanently reduce commitments with respect thereto), (iii) to the extent such Net Proceeds are from other assets, either (x) Additional Cash Flow Obligations or (y) Obligations under the Notes on a pro rata basis; provided that if the Parent, the Company or any Subsidiary Guarantor shall so reduce Obligations under clauses (iii)(x), the Parent or the Company will equally and ratably reduce Cash Flow Obligations with respect to the Notes as provided under “Optional Redemption,” 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, the pro rata principal amount of the Notes), in each case other than Indebtedness owed to the Parent or an Affiliate of the Parent or (iv) to the extent such Net Proceeds are not from an Asset Sale of Collateral, Indebtedness of a Restricted Subsidiary that is not a Guarantor; or
(ii) If to make an investment in any one or more businesses (provided that if such investment is in the Company or any Restricted Subsidiary engages in an Asset Sale, the Company may, at its option, within 12 months after such Asset Sale, (1) apply all or a portion form of the Net Cash Proceeds to the permanent reduction acquisition of amounts outstanding under the Credit Agreement (and to correspondingly reduce the commitmentsCapital Stock of a Person, if any, with respect thereto) or to the permanent repayment of other Senior Indebtedness of the Company or such acquisition results in such Person becoming a Restricted Subsidiary), provided that the repayment of any Indebtedness incurred under the Credit Agreement in connection with the acquisition of any Facility with the proceeds of any subsequent Sale and Leaseback Transaction relating to such Facility shall not be required to result in the permanent reduction of the amounts outstanding under the Credit Agreement or correspondingly permanently reduce the commitments thereunderassets, or property or capital expenditures, in each case (2a) invest used or useful in a Similar Business or (or enter into a legally binding agreement to investb) all or a portion of such Net Cash Proceeds in properties and assets to that replace the properties and assets that were 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; provided that assets purchased with the Net Proceeds from an Asset Sale of Specified Cash Flow Priority Collateral must constitute Specified Cash Flow Priority Collateral and the Fair Market Value of such purchased assets shall be greater than or in properties and assets equal to Net Proceeds from such Asset Sale of Specified Cash Flow Priority Collateral. In the case of Section 4.06(b)(ii), a binding commitment shall be treated as a permitted application of the Net Proceeds from the date of such commitment until the 18-month anniversary of the date of the receipt of such Net Proceeds; provided that will be used in the businesses event such binding commitment is later canceled or terminated for any reason before such Net Proceeds are so applied, then such Net Proceeds shall constitute Excess Proceeds unless the Parent or such Restricted Subsidiary enters into another binding commitment (a “Second Commitment”) within six months of such cancellation or termination of the Company prior binding commitment; provided, further, that the Parent or its such Restricted Subsidiaries, as Subsidiary may only enter into a Second Commitment under the case may be, existing on foregoing provision one time with respect to each Asset Sale and to the Closing Date extent such Second Commitment is later cancelled or in businesses the same, similar or reasonably related thereto. If terminated for any such legally binding agreement to invest reason before such Net Cash Proceeds is terminated, the Company may, are applied or are not applied within 90 180 days of such termination or within 12 months of such Asset SaleSecond Commitment, whichever is later, invest then such Net Cash Proceeds as provided in clause (1) or (2) (without regard shall constitute Excess Proceeds. Subject to the parenthetical contained in such clause (2)) above. Pending preceding paragraph, pending the final application of any such Net Cash Proceeds, the Company Parent or such Restricted Subsidiary may temporarily reduce Indebtedness under a revolving credit borrowings facility, if any, or otherwise invest such Net Cash Proceeds in a any manner that is not prohibited by this AgreementIndenture. The amount Any Net Proceeds from any Asset Sale that are not applied as provided and within the time period set forth in the first sentence of this Section 4.06(b) (it being understood that any portion of such Net Cash Proceeds used to make an offer to purchase the Notes, as described in clause (i) of this Section 4.06(b), shall be deemed to have been invested whether or not so used as set forth above in this paragraph shall such offer is accepted) will be deemed to constitute "“Excess Proceeds."
(c) ”. When the aggregate amount of Excess Proceeds exceeds $10,000,00050.0 million, the Company will, within 30 days thereafter, shall make an offer to purchase all holders of the Notes (and, at the option of the Company, to holders of any other Additional Cash Flow Obligations) (an "“Asset Sale Offer”) to purchase the maximum principal amount of the Notes (and such other Additional Cash Flow 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 Offer") from all Holders of Notes Proceeds, on a pro rata basisbasis with respect to the Notes, 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 Additional Cash Flow Obligations were issued with significant original issue discount, 100% of the accreted value thereof), plus accrued and unpaid interest(or, in respect of such other Additional Cash Flow Obligations, such lesser price, if any, as may be provided for by the terms of such other Additional Cash Flow Obligations), to, but excluding, the date fixed for the closing of such offer, in accordance with the procedures set forth in this AgreementIndenture. The Company will commence an Asset Sale Offer with respect to Excess Proceeds within ten (10) Business Days after the date that Excess Proceeds exceeds $50.0 million by mailing, or delivering electronically if held by DTC, the maximum principal amount (expressed as a multiple of $1,000) of Notes that may be purchased with the Excess Proceeds, at a purchase price in cash equal to 100% of the principal amount thereof, plus accrued interest, if any, notice required pursuant to the date such offer terms of this Indenture, with a copy to purchase is consummatedthe Trustee. To the extent that the aggregate principal amount of Notes (and such other Additional Cash Flow Obligations) tendered pursuant to such offer to purchase an Asset Sale Offer is less than the Excess Proceeds, the Company may use such deficiency any remaining Excess Proceeds for general corporate purposesany purpose that is not prohibited by this Indenture. If the aggregate principal amount of the Notes validly tendered (and not withdrawn such other Additional Cash Flow Obligations) surrendered by holders thereof exceeds the amount of Excess Proceeds, the amount of Notes in respect of which an Asset Sale Offer as made shall be designated by the Company to the Trustee, and the Trustee, upon receipt of notice from the Company of the aggregate principal amount to be selected, shall select the Notes to be purchased will be selected on a pro rata basisin the manner described in Section 4.06(e). Upon completion of any such offer to purchaseAsset Sale Offer, the amount of Excess Proceeds will shall be reset to at zero.
(iiic) The Company will comply comply, to the extent applicable, with the requirements of Rule 14e-1 under the Exchange Act and any other securities laws and regulations thereunder to the extent such laws and or regulations are applicable in connection with each the repurchase of the Notes pursuant to an Excess Proceeds Asset Sale Offer. To the extent that the provisions of any securities laws or regulations conflict with the Asset Sales provisions of this AgreementIndenture, the Company will comply with the applicable securities laws and regulations and will shall not be deemed to have breached its obligations under described in this Indenture by virtue thereof.
(d) Not later than the date upon which written notice of an Asset Sale Offer is delivered to the Trustee as provided above, the Company shall deliver to the Trustee an Officer’s Certificate as to (i) the amount of the Excess Proceeds, (ii) the allocation of the Net Proceeds from the Asset Sales pursuant to which such Asset Sale Offer is being made and (iii) the compliance of such allocation with the provisions of Section 5(j4.06(b). On such date, the Company shall also irrevocably deposit with the Trustee or the Paying Agent (or, if the Company or a Subsidiary is acting as the Paying Agent, segregate and hold in trust) an amount equal to the Excess Proceeds which may be invested in Cash Equivalents, as directed in writing by the Company and available to the Trustee and to be held for payment in accordance with the provisions of this Agreement Section 4.06. The Trustee shall have the right to open an account for purposes of receiving such Excess Proceeds. Upon the expiration of the period for which the Asset Sale Offer remains open (the “Offer Period”), the Company shall deliver to the Trustee for cancellation the Notes or portions thereof that have been properly tendered to and are to be accepted by virtue the Company. The Trustee (or the Paying Agent, if not the Trustee) shall, on the date of purchase, mail or deliver payment to each tendering holder in the amount of the purchase price. In the event that the Excess Proceeds delivered by the Company to the Trustee are greater than the purchase price of the Notes tendered, the Trustee shall deliver the excess to the Company immediately after the expiration of the Offer Period for application in accordance with this Section 4.06.
(e) Holders electing to have a Note purchased shall be required to surrender such Note, with an appropriate form duly completed, to the Company at the address specified in the notice at least three Business Days prior to the purchase date. Holders shall be entitled to withdraw their election if the Trustee, the Paying Agent and the Company receives not later than one Business Day prior to the purchase date, a facsimile transmission or letter setting forth the name of the holder, the principal amount of the Note which was delivered by the holder for purchase and a statement that such holder is withdrawing his election to have such Note purchased and otherwise in accordance with the applicable procedures of DTC. If at the end of the Offer Period more Notes (and such other Additional Cash Flow Obligations) are tendered pursuant to an Asset Sale Offer than the Company is required to purchase, selection of the amount of Notes in respect of which an Asset Sale Offer was made shall be designated by the Company to the Trustee, and the selection of Notes for purchase shall be made by the Trustee 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 DTC); provided that no Notes will be selected and purchased in an unauthorized denomination.
(f) Notices of an Asset Sale Offer shall be mailed by the Company by first class mail, postage prepaid, or delivered electronically if held at DTC, at least 15 but not more than 60 days before the purchase date to each holder of Notes at such holder’s registered address (with a copy to the Trustee). If any Note is to be purchased in part only, any notice of purchase that relates to such Note shall state the portion of the principal amount thereof that has been or is to be purchased.
(g) For the purposes of this covenant, any sale by the Parent or a Restricted Subsidiary of the Capital Stock of a Restricted Subsidiary that owns assets constituting Collateral shall be deemed to be a sale of such conflictCollateral.
Appears in 1 contract
Asset Sales. (i) The Company shall not, and shall not permit any of its Restricted Subsidiary Subsidiaries to: (i) sell, engage lease, convey or otherwise dispose of any assets or rights (including by way of a sale-and-leaseback) other than sales of inventory in the ordinary course of business (provided that the sale, lease, conveyance or other distribution of all or substantially all of the assets of the Company and its Restricted Subsidiaries, taken as a whole, shall be governed by the provisions of Sections 4.14 and 5.01 hereof and not by the last paragraph of this section), or (ii) with respect to the Company, sell Equity Interests in any of its Subsidiaries, or (iii) with respect to the Company's Restricted Subsidiaries, issue Equity Interests (each of the foregoing, an "Asset Sale Sale"), unless (x) the Company (or the Restricted Subsidiary, as the case may be) receives consideration received by at the Company or such Restricted Subsidiary for time of such Asset Sale is not less than at least equal to the fair market value of the assets sold (evidenced by a resolution of the board Board of directors of such entity Directors set forth in an Officers' Certificate delivered to the Holders Trustee) of the assets sold or otherwise disposed of and (y) the consideration received by the Company or the relevant Restricted Subsidiary in respect of such Asset Sale consists of at least 75% cash or Cash Equivalents (for purposes of this clause (y), cash and Cash Equivalents includes (A) any liabilities (as reflected in the Company's consolidated balance sheet) of the Company or any Restricted Subsidiary (other than contingent liabilities and liabilities that are by their terms subordinated to the Notes or any Guarantee) that are assumed by any transferee of any such assets or other property in such Asset Sale, and where the Company or the relevant Restricted Subsidiary is released from any further liability in connection therewith with respect to such liabilities, (B) any securities, notes or other similar obligations consideration received by the Company or any such Restricted Subsidiary from such transferee that are converted within 180 days of the consummation of the related Asset Sale therefor by the Company or such Restricted Subsidiary into is in the form of cash and Cash Equivalents or other Qualified Proceeds. Notwithstanding the foregoing, the following shall not be deemed to be Asset Sales: (to the extent of the net cash proceeds i) any single transaction or the Cash Equivalents (net series of related coststransactions that (a) received upon such conversion) and (C) any Designated Noncash Consideration received by the Company or any such Restricted Subsidiary in the Asset Sale involves assets having an aggregate fair market value, as determined by the Board of the Company, taken together with all other Designated Noncash Consideration received pursuant to this clause that is at that time outstanding, not to exceed the greater of:
(1) $10,000,000; and
(2) 15% of Consolidated Tangible Assets at the time of the receipt of such Designated Noncash Consideration (with the a fair market value of each item less than $2.0 million or (b) results in net proceeds to the Company and its Restricted Subsidiaries of such Designated Noncash Consideration being measured at the time received and without giving effect to subsequent changes in value).
less than $2.0 million, (ii) If a transfer of assets between or among the Company and any Restricted Subsidiary, (iii) an issuance of Equity Interests by a Restricted Subsidiary to the Company or to another Wholly Owned Restricted Subsidiary, (iv) the sale, lease, conveyance or other disposition of any Receivable Program Assets by the Company or any Restricted Subsidiary engages in an connection with a Receivables Program, (v) the sale, lease, conveyance or other disposition of any inventory, receivables or other current assets by the Company or any of its Restricted Subsidiaries in the ordinary course of business, (vi) the granting of a Permitted Lien, (vi) the licensing by the Company or any Restricted Subsidiary of intellectual property in the ordinary course of business or on commercially reasonable terms, (vii) the sale, lease, conveyance or other disposition of obsolete or worn out equipment or equipment no longer useful in the Company's business, and (viii) the making or liquidating of any Restricted Payment or Permitted Investment that is permitted by Section 4.07 hereof. Within 365 days after the receipt of any Net Proceeds from any Asset Sale, the Company may(or such Restricted Subsidiary) may apply such Net Proceeds from such Asset Sale, at its option, within 12 months after either (a) to repay Permitted Bank Debt, and if such Asset SalePermitted Bank Debt is revolving debt, to effect a corresponding commitment reduction thereunder, (1b) apply to acquire all or a portion substantially all of the Net Cash Proceeds to the permanent reduction of amounts outstanding under the Credit Agreement (and to correspondingly reduce the commitmentsassets of, if any, with respect thereto) or to the permanent repayment of other Senior Indebtedness a majority of the Company or Voting Stock of, another Permitted Business, (c) to make a Restricted Subsidiary, provided that the repayment of any Indebtedness incurred under the Credit Agreement in connection with the acquisition of any Facility with the proceeds of any subsequent Sale and Leaseback Transaction relating to such Facility shall not be required to result in the permanent reduction of the amounts outstanding under the Credit Agreement or correspondingly permanently reduce the commitments thereundercapital expenditure, or (2d) invest (or enter into a legally binding agreement to invest) all or a portion of such Net Cash Proceeds in properties and assets to replace the properties and acquire any other long-term assets that were the subject of the Asset Sale are used or useful in properties and assets that will be used in the businesses of the Company or its Restricted Subsidiaries, as the case may be, existing on the Closing Date or in businesses the same, similar or reasonably related thereto. If any such legally binding agreement to invest such Net Cash Proceeds is terminated, the Company may, within 90 days of such termination or within 12 months of such Asset Sale, whichever is later, invest such Net Cash Proceeds as provided in clause (1) or (2) (without regard to the parenthetical contained in such clause (2)) abovea Permitted Business. Pending the final application of any such Net Cash Proceeds, the Company (or such Restricted Subsidiary) may temporarily reduce revolving credit borrowings or otherwise invest such Net Cash Proceeds in a any manner that is not prohibited by this AgreementIndenture. The amount Any Net Proceeds from such Asset Sale that are not finally applied or invested as provided in the first sentence of such Net Cash Proceeds not so used as set forth above in this paragraph shall will be deemed to constitute "Excess Proceeds."
(c) When " Within five days of each date on which the aggregate amount of Excess Proceeds exceeds $10,000,00010 million, the Company will, within 30 days thereafter, make an offer to purchase (an "Excess Proceeds Offer") from all Holders of Notes on shall commence a pro rata basisAsset Sale Offer pursuant to Section 3.09 hereof to purchase the maximum principal amount of Notes that may be purchased out of the Excess Proceeds at an offer price in cash in an amount equal to 100% of the principal amount thereof plus accrued and unpaid interest and Liquidated Damages thereon, if any, to the date fixed for the closing of such offer, in accordance with the procedures set forth in this Agreement, the maximum principal amount (expressed as a multiple of $1,000) of Notes that may be purchased with the Excess Proceeds, at a purchase price in cash equal to 100% of the principal amount thereof, plus accrued interest, if any, to the date such offer to purchase is consummatedSection 3.09 hereof. To the extent that the aggregate principal amount of Notes tendered pursuant to such offer to purchase an Asset Sale Offer is less than the Excess Proceeds, the Company (or such Subsidiary) may use such deficiency for general corporate purposes. If the aggregate principal amount of Notes validly tendered and any purpose not withdrawn otherwise prohibited by holders thereof exceeds the Excess Proceeds, the Notes to be purchased will be selected on a pro rata basisthis Indenture. Upon completion of such offer to purchase, the amount of Excess Proceeds will be deemed to be reset to at zero.
(iii) 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 Excess Proceeds Offer. To the extent that the provisions of any securities laws or regulations conflict with the Asset Sales provisions of this Agreement, the Company will comply with the applicable securities laws and regulations and will not be deemed to have breached its obligations under Section 5(j) of this Agreement by virtue of such conflict.
Appears in 1 contract
Samples: Indenture (Amkor Technology Inc)
Asset Sales. (ia) The Company shall will not, and shall will not permit any of its Restricted Subsidiary Subsidiaries to, engage in any consummate an Asset Sale unless unless:
(x1) 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 (measured as of the date of the definitive agreement with respect to such Asset Sale) of the assets or Equity Interests issued or sold or otherwise disposed of, as approved in good faith by the Company’s Board of Directors; and
(2) at least 75% of the consideration received in the Asset Sale by the Company or such Restricted Subsidiary for such Asset Sale is not less than in the fair market value form of the assets sold evidenced by a resolution of the board of directors of such entity set forth in an Officers' Certificate delivered to the Holders and (y) the consideration received by the Company or the relevant Restricted Subsidiary in respect of such Asset Sale consists of at least 75% cash or Cash Equivalents (for Equivalents. For purposes of this clause provision only (yand specifically not for the purposes of the definition of “Net Proceeds”), cash and Cash Equivalents includes each of the following shall be deemed to be cash:
(A) any liabilities (as reflected in shown on the Company's consolidated ’s or such Restricted Subsidiary’s most recent balance sheet) of the Company or any Restricted Subsidiary (other than contingent liabilities and liabilities that are by their terms subordinated to the Notes or any Subsidiary Guarantee) that are assumed by any the transferee of any such assets or other property in such Asset Sale, and where the Company or the relevant Restricted Subsidiary is released from any further liability in connection therewith with respect to such liabilities, assets;
(B) any securities, notes or other similar obligations received by the Company or any such Restricted Subsidiary from such transferee that are converted within 180 days of the consummation of the related Asset Sale are converted by the Company or such Restricted Subsidiary into cash and Cash Equivalents (to the extent of the net cash proceeds received in that conversion);
(C) the fair market value of (x) any assets (other than securities or current assets) received by the Company or any Restricted Subsidiary that will be used or useful in a Related Business, (y) Equity Interests in a Person that is a Restricted Subsidiary or in a Person engaged in a Related Business that shall become a Restricted Subsidiary immediately upon the acquisition of such Equity Interests by the Company or the Cash Equivalents applicable Restricted Subsidiary or (net z) a combination of related costs) received upon such conversion(x) and (Cy); provided that the determination of the fair market value of assets or Equity Interests in excess of $50.0 million received in any transaction or series of related transactions shall be evidenced by an Officer’s Certificate delivered to the Trustee; and
(D) any Designated Noncash Consideration received by the Company or any such Restricted Subsidiary in the such Asset Sale having an aggregate fair market value, as determined by the Board of the Company, taken together with all other Designated Noncash Consideration received pursuant to this clause (D) since the Issue Date that is at that the time outstanding, not to exceed the greater of:
(1) $10,000,000; and
(2) 152.25% of Consolidated Tangible Total Assets at the time of the receipt of such Designated Noncash Consideration (Consideration, with the fair market value of each item of such Designated Noncash Consideration being measured at the time received and without giving effect to subsequent changes in value).
(iib) If Within 360 days after the receipt of any Net Proceeds of any Asset Sale, the Company or such Restricted Subsidiary, at its option, may apply an amount equal to the Net Proceeds from such Asset Sale:
(1) to repay, prepay, redeem or repurchase Indebtedness (other than securities) under Credit Facilities and, if such Indebtedness is revolving credit Indebtedness, effect a permanent 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 shall be required));
(2) to acquire Equity Interests in a Person that is engaged in a Related Business that shall become a Restricted Subsidiary immediately upon the acquisition of such Equity Interests by the Company or the applicable Restricted Subsidiary;
(3) to make capital expenditures constituting or with respect to long-term assets of the Company or a Restricted Subsidiary engaged in a Related Business;
(4) to acquire other assets (other than securities or current assets) that will be used or useful in a Related Business; or
(5) a combination of prepayments and investments permitted by the foregoing clauses (1), (2), (3) and (4); provided that the Company and its Restricted Subsidiaries will be deemed to have applied such Net Proceeds pursuant to clause (2) or (4) of this Section 4.10(b), as applicable, if and to the extent that, within 360 days after the Asset Sale that generated the Net Proceeds, the Company has entered into and not abandoned or rejected a binding agreement to consummate any reinvestment described in clause (2) or (4) of this paragraph, and such reinvestment is thereafter completed within 180 days after the end of such 360-day period.
(c) Pending the final application of such Net Proceeds, the Company or any Restricted Subsidiary engages in an Asset Sale, the Company may, at its option, within 12 months after such Asset Sale, (1) apply all or a portion of the Net Cash Proceeds to the permanent reduction of amounts outstanding may temporarily reduce borrowings under the Credit Agreement (and to correspondingly reduce the commitmentsFacilities or any other revolving credit facility, if any, with respect theretoor otherwise invest such Net Proceeds in any manner not prohibited by this Indenture. Subject to Section 4.10(e), on the 361st day (as extended pursuant to the provisions in the preceding paragraph) after an Asset Sale or such earlier date, if any, as the Board of Directors of the Company or of such Restricted Subsidiary determines not to apply the Net Proceeds relating to such Asset Sale as set forth in clause (1), (2), (3), (4) or (5) of Section 4.10(b) (each, a “Net Proceeds Offer Trigger Date”), such aggregate amount of Net Proceeds which have not been applied on or before such Net Proceeds Offer Trigger Date as permitted in clauses (1), (2), (3), (4) or (5) of Section 4.10(b) (each a “Net Proceeds Offer Amount”) shall be applied by the Company or such Restricted Subsidiary to make an offer to purchase (the permanent repayment “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, if required by the terms of any other Senior Indebtedness of the Company or a Restricted Subsidiary, provided that the repayment of any Indebtedness incurred under the Credit Agreement in connection ranking pari passu with the acquisition Notes in right of any Facility payment and which has similar provisions requiring the Company either to make an offer to repurchase or to otherwise repurchase, redeem or repay such Indebtedness with the proceeds of any subsequent Sale and Leaseback Transaction relating to such Facility shall not be required to result in from Asset Sales (the permanent reduction of “Pari Passu Indebtedness”), from the amounts outstanding under the Credit Agreement or correspondingly permanently reduce the commitments thereunder, or (2) invest (or enter into a legally binding agreement to invest) all or a portion holders of such Net Cash Proceeds Pari Passu Indebtedness) on a pro rata basis (in properties and assets proportion to replace the properties and assets that were the subject of the Asset Sale respective principal amounts or in properties and assets that will be used in the businesses of the Company or its Restricted Subsidiariesaccreted value, as the case may be, existing on of the Closing Date or in businesses the same, similar or reasonably related thereto. If Notes and any such legally binding agreement to invest such Net Cash Proceeds is terminatedPari Passu Indebtedness) an aggregate principal amount of Notes (plus, if applicable, an aggregate principal amount or accreted value, as the Company maycase may be, within 90 days of such termination or within 12 months of such Asset Sale, whichever is later, invest such Net Cash Proceeds as provided in clause (1Pari Passu Indebtedness) or (2) (without regard equal to the parenthetical contained in such clause (2)) above. Pending the final application of any such Net Cash Proceeds, the Company may temporarily reduce revolving credit borrowings or otherwise invest such Net Cash Proceeds in a manner that is not prohibited by this AgreementOffer Amount. The amount of such Net Cash Proceeds not so used as set forth above in this paragraph shall constitute "Excess Proceeds."
(c) When the aggregate amount of Excess Proceeds exceeds $10,000,000, the Company will, within 30 days thereafter, make an offer to purchase (an "Excess Proceeds Offer") from all Holders of Notes on a pro rata basis, in accordance with the procedures set forth in this Agreement, the maximum principal amount (expressed as a multiple of $1,000) of Notes that may be purchased with the Excess Proceeds, at a purchase price in cash any Net Proceeds Offer shall be equal to 100% of the principal amount thereofof the Notes (or 100% of the principal amount or accreted value, as the case may be, of such Pari Passu Indebtedness), plus accrued interestand unpaid interest thereon and Special Interest, if any, to the Net Proceeds Offer Payment Date.
(d) Notwithstanding the foregoing, if at any time any non-cash consideration received by the Company or any Restricted Subsidiary, as the case may be, in connection with any Asset Sale 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 Proceeds thereof shall be applied in accordance with Section 4.10.
(e) The Company may defer the Net Proceeds Offer until there is an aggregate unutilized Net Proceeds Offer Amount equal to or in excess of $40.0 million resulting from one or more Asset Sales (at which time the entire unutilized Net Proceeds Offer Amount, and not just the amount in excess of $40.0 million, shall be applied as required pursuant to Section 4.10, and in which case the Net Proceeds Offer Trigger Date shall be deemed to be the earliest date such offer that the Net Proceeds Offer Amount is equal to purchase is consummatedor in excess of $40.0 million).
(f) Each Net Proceeds Offer will be sent to the record Holders as shown on the register of Holders within 25 days following the Net Proceeds Offer Trigger Date, with a copy to the Trustee, and shall comply with the procedures set forth in Section 3.09. Upon receiving notice of the Net Proceeds Offer, Holders may elect to tender their Notes in whole or in part in minimum denominations of $2,000 or integral multiples of $1,000 in excess thereof in exchange for cash. To the extent that the aggregate principal amount of Notes (plus, if applicable, the aggregate principal amount or accreted value, as the case may be, of Pari Passu Indebtedness) validly tendered by the Holders thereof and not withdrawn exceeds the Net Proceeds Offer Amount, Notes of tendering Holders (and, if applicable, Pari Passu Indebtedness tendered by the holders thereof) will be purchased on a pro rata basis (based on the principal amount of the Notes and, if applicable, the principal amount or accreted value, as the case may be, of any such Pari Passu Indebtedness tendered and not withdrawn). To the extent that the aggregate amount of the Notes (plus, if applicable, the aggregate principal amount or accreted value, as the case may be, of any Pari Passu Indebtedness) tendered pursuant to such offer to purchase a Net Proceeds Offer is less than the Excess ProceedsNet Proceeds Offer Amount, the Company may use such deficiency excess Net Proceeds Offer Amount for general corporate purposes. If the aggregate principal amount of Notes validly tendered and purposes or for any other purpose not withdrawn prohibited by holders thereof exceeds the Excess Proceeds, the Notes to be purchased will be selected on a pro rata basisthis Indenture. Upon completion of any such offer to purchaseNet Proceeds Offer, the amount of Excess Net Proceeds will Offer Amount shall be reset to at zero. A Net Proceeds Offer shall remain open for a period of 20 Business Days or such longer period as may be required by applicable law.
(iiig) The Company or the applicable Restricted Subsidiary, as the case may be, will comply with the requirements of Rule 14e-1 under the Exchange Act and any other securities laws and regulations thereunder to the extent such laws and regulations are applicable in connection with each the repurchase of Notes pursuant to an Excess a Net Proceeds Offer. To the extent that the provisions of any securities laws or regulations conflict with the Asset Sales provisions of Section 3.09 or this AgreementSection 4.10, the Company will or such Restricted Subsidiary shall comply with the applicable securities laws and regulations and will shall not be deemed to have breached its obligations under Section 5(j) of 3.09 or this Agreement Section 4.10 by virtue of such conflictcompliance.
Appears in 1 contract
Samples: Indenture (Post Holdings, Inc.)
Asset Sales. (ia) The Company shall not, and shall not permit any of its Restricted Subsidiary Subsidiaries to, engage in any consummate an Asset Sale unless unless:
(xi) the Company (or the Restricted Subsidiary, as the case may be) receives consideration at the time of such Asset Sale at least equal to the fair market value of the assets or Equity Interests issued or sold or otherwise disposed of;
(ii) such fair market value is determined in good faith by (a) an executive officer of the General Partner if the value is less than $20.0 million, as evidenced by an Officers’ Certificate delivered to the Trustee or (b) the Board of Directors of the General Partner if the value is $20.0 million or more, as evidenced by a resolution of such Board of Directors of the General Partner; and
(iii) except in the case of a Permitted Asset Swap, at least 75% of the consideration therefor received by the Company or such Restricted Subsidiary for such Asset Sale is not less than in the fair market value form of the assets sold evidenced by a resolution of the board of directors of such entity set forth in an Officers' Certificate delivered to the Holders and (y) the consideration received by the Company or the relevant Restricted Subsidiary in respect of such Asset Sale consists of at least 75% cash or Cash Equivalents (for Equivalents. For purposes of this clause (yiii), cash and Cash Equivalents includes each of the following shall be deemed to be cash:
(A) any liabilities (as reflected in shown on the Company's consolidated ’s or such Restricted Subsidiary’s most recent balance sheet) of the Company or any Restricted Subsidiary (other than contingent liabilities and liabilities that are by their terms subordinated to the Notes or any Guarantee) that are assumed by any the transferee of any such assets or other property in such Asset Sale, and where pursuant to a customary novation agreement that releases the Company or the relevant such Restricted Subsidiary is released from any further liability in connection therewith with respect to such liabilities, liability; and
(B) any securities, notes or other similar obligations Obligations received by the Company or any such Restricted Subsidiary from such transferee that are converted within 180 days of after the consummation of the related Asset Sale converted by the Company such Issuer or such Restricted Subsidiary into cash and Cash Equivalents (to the extent of the net cash proceeds or the Cash Equivalents (net of related costs) received upon such in that conversion) and (C) any Designated Noncash Consideration received by the Company or any such Restricted Subsidiary in the Asset Sale having an aggregate fair market value, as determined by the Board of the Company, taken together with all other Designated Noncash Consideration received pursuant to this clause that is at that time outstanding, not to exceed the greater of:
(1) $10,000,000; and
(2) 15% of Consolidated Tangible Assets at the time of the receipt of such Designated Noncash Consideration (with the fair market value of each item of such Designated Noncash Consideration being measured at the time received and without giving effect to subsequent changes in value).
(iib) If Within 360 days after the receipt of any Net Proceeds from an Asset Sale (or within 90 days after such 360-day period in the event the Company or any Restricted Subsidiary engages in an Asset Sale, the Company may, at its option, within 12 months after such Asset Sale, (1) apply all or enters into a portion of the Net Cash Proceeds to the permanent reduction of amounts outstanding under the Credit Agreement (and to correspondingly reduce the commitments, if any, binding commitment with respect thereto) or to the permanent repayment of other Senior Indebtedness of such application), the Company or a Restricted Subsidiary, provided that Subsidiary may apply such Net Proceeds at its option:
(i) to repay secured Indebtedness of the Company and/or its Restricted Subsidiaries and/or to satisfy all mandatory repayment of any Indebtedness incurred obligations under the Credit Agreement in connection with the acquisition of any Facility with the proceeds of any subsequent Sale and Leaseback Transaction relating to such Facility shall not be required to result in the permanent reduction of the amounts outstanding under the Credit Agreement or correspondingly permanently reduce the commitments thereunder, or (2) invest (or enter into a legally binding agreement to invest) all or a portion of such Net Cash Proceeds in properties and assets to replace the properties and assets that were the subject of the Asset Sale or in properties and assets that will be used in the businesses of the Company or its Restricted Subsidiaries, as the case may be, existing on the Closing Date or in businesses the same, similar or reasonably related thereto. If any such legally binding agreement to invest such Net Cash Proceeds is terminated, the Company may, within 90 days of such termination or within 12 months Facilities arising by reason of such Asset Sale, whichever ;
(ii) to make a capital expenditure in a Permitted Business;
(iii) to acquire other tangible assets that are used or useful in a Permitted Business; or
(iv) to acquire all or substantially all of the assets of a Person engaged in a Permitted Business or Equity Interests of a Person engaged in a Permitted Business so long as such Person or the Person to which such assets are transferred is later, invest such Net Cash Proceeds as provided in clause (1) or (2) (without regard to the parenthetical contained in such clause (2)) abovea Restricted Subsidiary. Pending the final application of any such Net Cash Proceeds, the Company may temporarily reduce revolving credit borrowings or otherwise invest such Net Cash Proceeds in a any manner that is not prohibited by this AgreementIndenture. The amount of such Net Cash Proceeds not so used as set forth above in this paragraph shall constitute "Excess Proceeds."Back to Contents
(c) Any Net Proceeds from Asset Sales that are not applied or invested as provided in Section 4.07(b) above will constitute “Excess Proceeds”. When the aggregate amount of Excess Proceeds exceeds $10,000,00025.0 million, the Company will, within 30 days thereafter, Issuers will make an offer Asset Sale Offer to purchase (an "Excess Proceeds Offer") from all Holders of Notes and, at the option of the Issuers, all holders of other Indebtedness that is pari passu with the Notes to purchase the maximum principal amount of Notes and such other pari passu Indebtedness that may be purchased out of the Excess Proceeds; provided that Notes tendered shall be given priority over any such other Indebtedness unless such other Indebtedness contains containing provisions similar to those set forth in this Indenture with respect to offers to purchase or redeem with the proceeds of sales of assets in which case the Notes and such other Indebtedness will be purchased on a pro rata basis, in accordance with the procedures set forth in this Agreement, the maximum principal amount (expressed as a multiple of $1,000) of Notes that may be purchased with the Excess Proceeds, at a purchase . The offer price in cash any Asset Sale Offer will be equal to 100% of the principal amount thereof, plus accrued interestand unpaid interest (including any Additional Interest in the case of the Notes), if any, to the Purchase Date, subject to the rights of any Holder in whose name a Note is registered on a record date such offer occurring prior to purchase the Purchase Date to receive interest on an Interest Payment Date that is consummatedon or prior to the Purchase Date, and will be payable in cash. To the extent that the aggregate principal amount If any Excess Proceeds remain after consummation of Notes tendered pursuant to such offer to purchase is less than the Excess Proceedsan Asset Sale Offer, the Company may use such deficiency Excess Proceeds for general corporate purposesany purpose not otherwise prohibited by this Indenture, including, without limitation, the repurchase or redemption of Indebtedness of the Issuers or any Subsidiary Guarantor that is subordinated to the Notes or, in the case of any Subsidiary Guarantor, the Guarantee of such Subsidiary Guarantor. If the aggregate principal amount of Notes validly tendered and not withdrawn by holders thereof into such Asset Sale Offer exceeds the amount of Excess ProceedsProceeds allocated for repurchases of Notes pursuant to the Asset Sale Offer for Notes, the Trustee shall select the Notes to be purchased will be selected on a pro rata basisbasis among Holders of Notes. Upon completion of such offer to purchaseeach Asset Sale Offer, the amount of Excess Proceeds will shall be reset to at zero.
(iiid) The Company will shall comply with the requirements of Rule 14e-1 under the Exchange Act and any other securities laws and regulations thereunder to the extent such those laws and regulations are applicable in connection with each repurchase of Notes pursuant to an Excess Proceeds Asset Sale Offer. To the extent that the provisions of any securities laws or regulations conflict with the Asset Sales provisions of Section 3.09 or this AgreementSection 4.07, the Company will shall comply with the applicable securities laws and regulations and will shall not be deemed to have breached its obligations under Section 5(j) of 3.09 or this Agreement Section 4.07 by virtue of such conflict.
Appears in 1 contract
Asset Sales. (ia) The Company shall not, and shall not permit any of its Restricted Subsidiary Subsidiaries to, engage in any consummate an Asset Sale unless unless:
(xi) except in the consideration received case of a disposition of Investments in Joint Ventures to the extent required by or made pursuant to customary buy/sell arrangements between the Joint Venture parties set forth in Joint Venture agreements or similar binding arrangements, the Company (or such a Restricted Subsidiary for Subsidiary, as the case may be) receives consideration at the time of such Asset Sale is not less than at least equal to the fair market value of the assets or Equity Interests issued or sold or otherwise disposed of;
(ii) such fair market value is determined in good faith by (a) an Officer of the General Partner if the value is less than $50.0 million, as evidenced by a resolution of the board of directors of such entity set forth in an Officers' ’ Certificate delivered to the Holders and Trustee or (yb) the Board of Directors of the General Partner if the value is $50.0 million or more, as evidenced by a Board Resolution of the General Partner; and
(iii) except in the case of a Permitted Asset Swap, at least 75% of the consideration therefor received by the Company or the relevant a Restricted Subsidiary is in respect the form of such Asset Sale consists of at least 75% cash or Cash Equivalents (for or a combination thereof. For purposes of this clause (y)provision, cash and Cash Equivalents includes each of the following shall be deemed to be cash:
(A) any liabilities (as reflected in shown on the Company's consolidated ’s or such Restricted Subsidiary’s most recent balance sheet) of the Company or any Restricted Subsidiary (other than contingent liabilities and liabilities that are by their terms subordinated to the Notes or any Guarantee) that are assumed by any the transferee of any such assets or other property in such Asset Sale, and where pursuant to a customary novation agreement that releases the Company or the relevant such Restricted Subsidiary is released from any further liability in connection therewith with respect to such liabilities, liability;
(B) any securities, notes Notes or other similar obligations non-cash consideration received by the Company or any such Restricted Subsidiary from such transferee that are converted is within 180 days of after the consummation of the related Asset Sale converted by the Company such Issuer or such Restricted Subsidiary into cash and Cash Equivalents (to the extent of the net cash proceeds or the Cash Equivalents (net of related costs) received upon such in that conversion) and ); and
(C) any Designated Noncash Consideration received accounts receivable of a business retained by the Company or any such Restricted Subsidiary in the Asset Sale having an aggregate fair market value, as determined by the Board of the Company, taken together with all other Designated Noncash Consideration received pursuant to this clause that is at that time outstanding, not to exceed the greater of:
(1) $10,000,000; and
(2) 15% of Consolidated Tangible Assets at the time of the receipt of such Designated Noncash Consideration (with the fair market value of each item of such Designated Noncash Consideration being measured at the time received and without giving effect to subsequent changes in value).
(ii) If the Company or any Restricted Subsidiary engages in an Asset Sale, the Company may, at its option, within 12 months after such Asset Sale, (1) apply all or a portion of the Net Cash Proceeds to the permanent reduction of amounts outstanding under the Credit Agreement (and to correspondingly reduce the commitments, if any, with respect thereto) or to the permanent repayment of other Senior Indebtedness of the Company or a Restricted Subsidiary, provided that the repayment of any Indebtedness incurred under the Credit Agreement in connection with the acquisition of any Facility with the proceeds of any subsequent Sale and Leaseback Transaction relating to such Facility shall not be required to result in the permanent reduction of the amounts outstanding under the Credit Agreement or correspondingly permanently reduce the commitments thereunder, or (2) invest (or enter into a legally binding agreement to invest) all or a portion of such Net Cash Proceeds in properties and assets to replace the properties and assets that were the subject of the Asset Sale or in properties and assets that will be used in the businesses of the Company or its Restricted Subsidiaries, as the case may be, existing on following the Closing Date sale of such business, provided, that such accounts receivable are not (a) past due more than 90 days and (b) do not have a payment date greater than 120 days from the date of the invoice creating such accounts receivable.
(b) Within 360 days after the receipt of any Net Proceeds from an Asset Sale (or within 90 days after such 360-day period in businesses the same, similar or reasonably related thereto. If any event the Company enters into a binding commitment with respect to such legally binding agreement to invest such Net Cash Proceeds is terminatedapplication), the Company may, within 90 days or a Restricted Subsidiary may apply such Net Proceeds at its option:
(i) to repay senior Indebtedness of such termination or within 12 months the Company and/or its Restricted Subsidiaries under the Credit Facilities;
(ii) to satisfy all mandatory repayment obligations under the Credit Facilities arising by reason of such Asset Sale, whichever ;
(iii) to make a capital expenditure in a Permitted Business;
(iv) to acquire other tangible assets that are used or useful in a Permitted Business; or
(v) to acquire all or substantially all of the properties or assets of a Person engaged in a Permitted Business or Equity Interests of a Person engaged in a Permitted Business so long as such Person or the Person to which such properties or assets are transferred is later, invest such Net Cash Proceeds as provided in clause (1) or (2) (without regard to the parenthetical contained in such clause (2)) abovebecomes a Restricted Subsidiary. Pending the final application of any such Net Cash Proceeds, the Company or any Restricted Subsidiary may temporarily reduce revolving credit borrowings or otherwise invest such Net Cash Proceeds in a any manner that is not prohibited by this Agreement. The amount of such Net Cash Proceeds not so used as set forth above in this paragraph shall constitute "Excess Proceedsthe Indenture."
(c) Any Net Proceeds from Asset Sales that are not applied or invested as provided in Section 4.07(b) above will constitute “Excess Proceeds”. When the aggregate amount of Excess Proceeds exceeds $10,000,00025.0 million, the Company will, within 30 days thereafter, Issuers will make an offer Asset Sale Offer to purchase (an "Excess Proceeds Offer") from all Holders of Notes and, at the option of the Issuers, all holders of other Indebtedness that is pari passu with the Notes to purchase the maximum principal amount of Notes and such other pari passu Indebtedness that may be purchased out of the Excess Proceeds; provided that Notes tendered shall be given priority over any such other Indebtedness unless such other Indebtedness contains provisions similar to those set forth in the Indenture with respect to offers to purchase or redeem with the proceeds of sales of assets in which case the Notes and such other Indebtedness will be purchased on a pro rata basis, in accordance with the procedures set forth in this Agreement, the maximum principal amount (expressed as a multiple of $1,000) of Notes that may be purchased with the Excess Proceeds, at a purchase . The offer price in cash any Asset Sale Offer will be equal to 100% of the principal amount thereof, plus accrued interestand unpaid interest and Liquidated Damages, if any, to the date such offer to purchase is consummatedPurchase Date, and will be payable in cash. To the extent that the aggregate principal amount If any Excess Proceeds remain after consummation of Notes tendered pursuant to such offer to purchase is less than the Excess Proceedsan Asset Sale Offer, the Company or any Restricted Subsidiary may use such deficiency Excess Proceeds for general corporate purposesany purpose not otherwise prohibited by the Indenture, including, without limitation, the repurchase or redemption of Indebtedness of the Issuers or any Subsidiary Guarantor that is subordinated to the Notes or, in the case of any Subsidiary Guarantor, the Guarantee of such Subsidiary Guarantor. If the aggregate principal amount of Notes validly tendered and not withdrawn by holders thereof into such Asset Sale Offer exceeds the amount of Excess ProceedsProceeds allocated for repurchases of Notes pursuant to the Asset Sale Offer for Notes, the Trustee shall select the Notes to be purchased will be selected on a pro rata basisbasis (or, in the case of notes in global form, the Trustee shall select the Notes to be purchased based on the Depositary’s method that most nearly approximates a pro rata selection). Upon completion of such offer to purchaseeach Asset Sale Offer, the amount of Excess Proceeds will shall be reset to at zero.
(iiid) The Company will shall comply with the requirements of Rule 14e-1 under the Exchange Act and any other securities laws and regulations thereunder to the extent such those laws and regulations are applicable in connection with each repurchase of Notes pursuant to an Excess Proceeds Asset Sale Offer. To the extent that the provisions of any securities laws or regulations conflict with the Asset Sales provisions of Section 3.10 or this AgreementSection 4.07, the Company will shall comply with the applicable securities laws and regulations and will shall not be deemed to have breached its obligations under Section 5(j) of 3.10 or this Agreement Section 4.07 by virtue of such conflictcompliance.
Appears in 1 contract
Samples: Fourth Supplemental Indenture (PVR Partners, L. P.)
Asset Sales. (i) The Company shall not, and shall not permit any of its Restricted Subsidiary Subsidiaries to, engage in any directly or indirectly, consummate an Asset Sale unless (xi) the Company (or such Restricted Subsidiary, as the case may be) receives consideration at the time of such Asset Sale at least equal to the fair market value (evidenced by a Board Resolution ) of the assets or Equity Interests issued or sold or otherwise disposed of and (ii) at least 75% of the consideration therefor received by the Company or such Restricted Subsidiary for such Asset Sale is not less than in the fair market value form of the assets sold evidenced by a resolution of the board of directors of such entity set forth in an Officers' Certificate delivered to the Holders and (yx) the consideration received by the Company or the relevant Restricted Subsidiary in respect of such Asset Sale consists of at least 75% cash or Cash Equivalents (for purposes of this clause or (y)) a controlling interest in another business or fixed or other long-term assets, cash and Cash Equivalents includes in each case, in a Similar Business; provided that the amount of (Aa) any liabilities (as reflected in shown on the Company's consolidated or such Restricted Subsidiary's most recent balance sheet) of the Company or any such Restricted Subsidiary (other than contingent liabilities and liabilities that are by their terms subordinated to the Notes or any GuaranteeGuarantee thereof) that are assumed by any the transferee of any such assets or other property in Equity Interests such Asset Sale, and where that the Company or the relevant such Restricted Subsidiary is are released from any further liability in connection therewith with respect to such liabilities, and (Bb) any securities, notes or other similar obligations received by the Company or any such Restricted Subsidiary from such transferee that are converted within 180 days of the consummation of the related Asset Sale by the Company or such Restricted Subsidiary into cash and within 90 days or are guaranteed (by means of a letter of credit or otherwise) by an institution specified in the definition of "Cash Equivalents Equivalents" (to the extent of the net cash proceeds received or the obligations so guaranteed) shall be deemed to be cash or Cash Equivalents (net for purposes of related costs) received upon such conversion) and (C) any Designated Noncash Consideration received by the Company or any such Restricted Subsidiary this Section 4.16, subject to application as provided in the Asset Sale having an aggregate fair market value, as determined by the Board of the Company, taken together with all other Designated Noncash Consideration received pursuant to this clause that is at that time outstanding, not to exceed the greater of:
(1) $10,000,000; and
(2) 15% of Consolidated Tangible Assets at the time of following paragraph. Within 365 days after the receipt of such Designated Noncash Consideration (with the fair market value of each item of such Designated Noncash Consideration being measured at the time received and without giving effect to subsequent changes in value).
(ii) If the Company or any Restricted Subsidiary engages in Net Proceeds from an Asset Sale, the Company mayCompany, at its option, within 12 months after such Asset Sale, may (1i) apply all such Net Proceeds to permanently prepay, repay or a portion reduce any Senior Debt of the Net Cash Proceeds to the permanent reduction of amounts outstanding under the Credit Agreement Company (and to correspondingly reduce the commitments, if any, commitments with respect theretothereto in the case of revolving borrowings) or (ii) apply such Net Proceeds to the permanent repayment of other Senior Indebtedness of the Company or a Restricted Subsidiary, provided that the repayment of any Indebtedness incurred under the Credit Agreement in connection with the acquisition of any Facility with a controlling interest in another business, the proceeds making of any subsequent Sale and Leaseback Transaction relating to such Facility shall not be required to result a capital expenditure or the acquisition of other long-term assets, in the permanent reduction of the amounts outstanding under the Credit Agreement or correspondingly permanently reduce the commitments thereundereach case, in a Similar Business, or (2) invest (or enter into a legally binding agreement determine to invest) all or a portion of retain such Net Cash Proceeds in properties and assets to replace the properties and assets that were the subject of the Asset Sale or in properties and assets that will be used in the businesses of the Company or its Restricted Subsidiaries, as the case may be, existing on the Closing Date or in businesses the same, similar or reasonably related thereto. If any such legally binding agreement to invest extent such Net Cash Proceeds is terminated, the Company may, within 90 days of constitute such termination a controlling interest or within 12 months of such Asset Sale, whichever is later, invest such Net Cash Proceeds as provided long-term asset in clause (1) or (2) (without regard to the parenthetical contained in such clause (2)) abovea Similar Business. Pending the final application of any such Net Cash Proceeds, the Company may temporarily reduce revolving credit borrowings or otherwise invest such Net Cash Proceeds in a any manner that is not prohibited by this AgreementIndenture. The amount Any Net Proceeds from Asset Sales that are not applied or invested as provided in the first sentence of such Net Cash Proceeds not so used as set forth above in this paragraph shall will be deemed to constitute "Excess Proceeds."
(c) " When the aggregate amount of Excess Proceeds exceeds $10,000,00010 million, the Company will, within 30 days thereafter, shall make an offer to purchase (an "Excess Proceeds Offer") from all Holders of Notes on a pro rata basis(and holders of other Indebtedness of the Company, in accordance with including the procedures set forth in this AgreementExisting Notes, to the extent required by the terms of such other Indebtedness) (an "Asset Sale Offer") to purchase the maximum principal amount (expressed as a multiple of $1,000) of Notes (and such other Indebtedness) that may be purchased with does not exceed the Excess Proceeds, Proceeds at a purchase an offer price in cash in an amount equal to 100% of the principal amount thereof, plus accrued interestand unpaid interest and Liquidated Damages, if any, thereon to the date such offer to purchase is consummatedof purchase, in accordance Section 3.10 hereof. To the extent that the aggregate principal amount of Notes (and such other Indebtedness) tendered pursuant to such offer to purchase an Asset Sale Offer is less than the Excess Proceeds, the Company may use such deficiency any remaining Excess Proceeds for general corporate purposes. If the aggregate principal amount of Notes validly (and such other Indebtedness) tendered and not withdrawn by holders thereof exceeds the amount of Excess Proceeds, the Notes (and such other Indebtedness) to be purchased will shall be selected on a pro rata basis. Upon completion of such offer to purchasean Asset Sale Offer, the amount of Excess Proceeds will shall be reset to at zero.
(iii) . The Asset Sale Offer must be commenced within 60 days following the date on which the aggregate amount of Excess Proceeds exceeds $10 million. The Company will shall comply with the requirements of Rule 14e-1 under the Exchange Act and any other securities laws and regulations thereunder to the extent such laws and regulations are applicable in connection with each the repurchase of Notes pursuant to an Excess Proceeds Asset Sale Offer. To the extent that the provisions of any securities laws or regulations conflict with the Asset Sales provisions of this Agreement, the Company will comply with the applicable securities laws and regulations and will not be deemed to have breached its obligations under Section 5(j) of this Agreement by virtue of such conflict.
Appears in 1 contract
Samples: Indenture (GHTV Inc)
Asset Sales. (ia) The Company shall not, and shall not permit any of the Restricted Subsidiary Subsidiaries to, engage in any cause or make an Asset Sale Sale, unless (x) the Company or 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 in good faith by the Company) of the assets sold or otherwise disposed of, and (y) at least 75% of the consideration therefor received by the Company or such Restricted Subsidiary for such Asset Sale Subsidiary, as the case may be, is not less than in the fair market value form of Cash Equivalents; provided that the assets sold evidenced by a resolution of the board of directors of such entity set forth in an Officers' Certificate delivered to the Holders and amount of:
(y) the consideration received by the Company or the relevant Restricted Subsidiary in respect of such Asset Sale consists of at least 75% cash or Cash Equivalents (for purposes of this clause (y), cash and Cash Equivalents includes (Ai) any liabilities (as reflected shown on the Company’s or a Restricted Subsidiary’s most recent balance sheet or in the Company's consolidated balance sheetnotes thereto) of the Company or any a Restricted Subsidiary (other than contingent liabilities and liabilities that are by their terms subordinated to the Notes or any Subsidiary Guarantee) that are assumed by any the transferee of any such assets or other property in such Asset Sale, and where the Company that are otherwise cancelled or the relevant Restricted Subsidiary is released from any further liability terminated in connection therewith with respect to the transaction with such liabilities, transferee,
(Bii) any securities, notes or other similar obligations or other securities or assets received by the Company or any such Restricted Subsidiary from such transferee that are converted within 180 days of the consummation of the related Asset Sale by the Company or such Restricted Subsidiary into cash and Cash Equivalents within 180 days of the receipt thereof (to the extent of the net cash proceeds received),
(iii) Indebtedness of any Restricted Subsidiary that is no longer a Restricted Subsidiary as a result of such Asset Sale, to the extent that the Company and each other Restricted Subsidiary are released from any guarantee of payment of such Indebtedness in connection with the Asset Sale,
(iv) consideration consisting of Indebtedness of the Company or the Cash Equivalents any Restricted Subsidiary (net of related costsother than Subordinated Indebtedness) received upon such conversion) and after the Issue Date from Persons who are not the Company or any Restricted Subsidiary, and
(Cv) any Designated Noncash Non-cash Consideration received by the Company or any such Restricted Subsidiary in the such Asset Sale having an aggregate fair market value, Fair Market Value (as determined in good faith by the Board of the Company), taken together with all other Designated Noncash Non-cash Consideration received pursuant to this clause Section 4.06(a)(v) that is at that time outstanding, not to exceed the greater of:
(1) of $10,000,000; and
(2) 15% 65 million and 0.19 multiplied by the Pro Forma EBITDA of Consolidated Tangible Assets at the time of Company for the most recently ended four full fiscal quarters for which financial statements have been delivered to the Trustee immediately preceding the receipt of such Designated Noncash Non-cash Consideration (with the fair market value Fair Market Value of each item of such Designated Noncash Non-cash Consideration being measured at the time received and without giving effect to subsequent changes in value), shall in each case be deemed to be Cash Equivalents for the purposes of this Section 4.06(a).
(iib) If Within 365 days after the Company Company’s or any Restricted Subsidiary engages in an Subsidiary’s receipt of the Net Proceeds of any Asset Sale, the Company mayor such Restricted Subsidiary may apply the Net Proceeds from such Asset Sale, at its option:
(i) to repay (A) Indebtedness constituting First-Priority Obligations (and, within 12 months after such Asset Saleif the Indebtedness repaid is revolving credit Indebtedness, (1) apply all or a portion of the Net Cash Proceeds to the permanent reduction of amounts outstanding under the Credit Agreement (and to correspondingly reduce commitments with respect thereto), (B) Indebtedness of a Restricted Subsidiary that is not an Issuer or a Subsidiary Guarantor, (C) Obligations under the commitmentsNotes 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 other First-Priority Obligations pursuant to clause (A) or Pari Passu Indebtedness that does not constitute First-Priority Obligations under this clause (D) (which, for the avoidance of doubt, does not include Indebtedness described in clauses (A), (B) and (C) even if such Indebtedness may also constitute Pari Passu Indebtedness), 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 the procedures set forth below for an Asset Sale Offer) to all holders to purchase a pro rata principal amount of Notes 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, if any), with respect thereto) or in each case other than Indebtedness owed to the permanent repayment Company or an Affiliate of other Senior Indebtedness the Company; or
(ii) to make an investment in any one or more businesses (provided that if such investment is in the form of the acquisition of Capital Stock of a Person, such acquisition results in such Person becoming a Restricted Subsidiary of the Company or in an increase in the percentage ownership by the Company (or a Restricted Subsidiary) in such Restricted Subsidiary), provided that the repayment of any Indebtedness incurred under the Credit Agreement in connection with the acquisition of any Facility with the proceeds of any subsequent Sale and Leaseback Transaction relating to such Facility shall not be required to result in the permanent reduction of the amounts outstanding under the Credit Agreement or correspondingly permanently reduce the commitments thereunderassets, or property or capital expenditures, in each case (2A) invest used or useful in a Similar Business or (or enter into a legally binding agreement to investB) all or a portion of such Net Cash Proceeds in properties and assets to that replace the properties and assets that were are the subject of such Asset Sale or, in each case, to reimburse the cost of any of the foregoing incurred on or after the date on which the Asset Sale or in properties and assets 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 will be used in the businesses event such binding commitment is later canceled or terminated for any reason after the 365th day after the receipt of such Net Proceeds but before such Net Proceeds are so applied, then such Net Proceeds shall constitute Excess Proceeds unless the Company or its such Restricted SubsidiariesSubsidiary enters into another binding commitment (a “Second Commitment”) within six months of such cancellation or termination of the prior binding commitment; provided, as further, that the case Company or such Restricted Subsidiary may be, existing on only enter into a Second Commitment under the Closing Date foregoing provision one time with respect to each Asset Sale and to the extent such Second Commitment is later cancelled or in businesses the same, similar or reasonably related thereto. If terminated for any such legally binding agreement to invest reason before such Net Cash Proceeds is terminated, the Company may, are applied or are not applied within 90 180 days of such termination or within 12 months of such Asset SaleSecond Commitment, whichever is later, invest then such Net Cash Proceeds as provided in clause (1) or (2) (without regard to the parenthetical contained in such clause (2)) aboveshall constitute Excess Proceeds. Pending the final application of any such Net Cash Proceeds, the Company or such Restricted Subsidiary may temporarily reduce Indebtedness under a revolving credit borrowings facility, if any, or otherwise invest such Net Cash Proceeds in a any manner that is not prohibited by this AgreementIndenture. The amount Any Net Proceeds from any Asset Sale that are not applied as provided and within the time period set forth in the first paragraph of this Section 4.06(b) (it being understood that any portion of such Net Cash Proceeds not so used as set forth above in this paragraph shall constitute "Excess Proceeds."
(c) When the aggregate amount of Excess Proceeds exceeds $10,000,000, the Company will, within 30 days thereafter, to make an offer to purchase Notes, as described in clause (an "Excess Proceeds Offer") from all Holders of Notes on a pro rata basis, in accordance with the procedures set forth in this Agreement, the maximum principal amount (expressed as a multiple of $1,000) of Notes that may be purchased with the Excess Proceeds, at a purchase price in cash equal to 100% of the principal amount thereof, plus accrued interest, if any, to the date such offer to purchase is consummated. To the extent that the aggregate principal amount of Notes tendered pursuant to such offer to purchase is less than the Excess Proceeds, the Company may use such deficiency for general corporate purposes. If the aggregate principal amount of Notes validly tendered and not withdrawn by holders thereof exceeds the Excess Proceeds, the Notes to be purchased will be selected on a pro rata basis. Upon completion of such offer to purchase, the amount of Excess Proceeds will be reset to zero.
(iii) 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 Excess Proceeds Offer. To the extent that the provisions of any securities laws or regulations conflict with the Asset Sales provisions of this Agreement, the Company will comply with the applicable securities laws and regulations and will not be deemed to have breached its obligations under Section 5(ji) of this Agreement by virtue of such conflict.Section
Appears in 1 contract
Samples: Indenture (Exela Technologies, Inc.)
Asset Sales. (ia) The Company shall will not, and shall will not permit any Restricted Subsidiary to, engage in directly or indirectly, consummate any Asset Sale unless unless:
(x1) The Company (or a Restricted Subsidiary, as the case may be) receives consideration at the time of such Asset Sale at least equal to the Fair Market Value (determined as of the time of contractually agreeing to such Asset Sale) of the assets or Equity Interests issued or sold or otherwise disposed of in such Asset Sale (such Fair Market Value to be determined by an executive officer of the Company or such Subsidiary); and
(2) At least 75% of the total consideration from such Asset Sale, together with all other Asset Sales since the date of this Indenture (on a cumulative basis) received by the Company or such Restricted Subsidiary for such Asset Sale is not less than Subsidiary, as the fair market value of the assets sold evidenced by a resolution of the board of directors of such entity set forth in an Officers' Certificate delivered to the Holders and (y) the consideration received by the Company or the relevant Restricted Subsidiary in respect of such Asset Sale case may be consists of at least 75% cash or Cash Equivalents (for or Marketable Securities. For purposes of this clause (y)provision, cash and Cash Equivalents includes each of the following shall be deemed to be cash:
(A) the amount of any liabilities (Indebtedness or other liabilities, as reflected in shown on the Company's ’s most recent consolidated balance sheet) , of the Company or any Restricted Subsidiary (other than contingent liabilities and or liabilities that are by their terms subordinated to the Notes or any Guaranteethe related Guarantees) that are assumed or discharged (including by any a reduction in purchase price) by the transferee or purchaser of any such assets or other property in such Asset Sale, and where from which the Company or such Restricted Subsidiary, as the relevant Restricted Subsidiary case may be, is validly released from any by all creditors against further liability in connection therewith with respect to such liabilities, liability;
(B) the amount of any securities, notes Notes or other similar obligations received by the Company or any such Restricted Subsidiary from such transferee that are converted within 180 days following the closing of the consummation of the related such Asset Sale Sale, subject to ordinary settlement periods, converted by the Company or such Restricted Subsidiary into cash and or Cash Equivalents (to the extent of the net cash proceeds or the Cash Equivalents (net of related costs) received upon such conversion) and actually so received);
(C) the Fair Market Value of any assets (other than securities) received by the Company or any Restricted Subsidiary to be used by the Company or any Restricted Subsidiary in a Permitted Business;
(D) any Designated Noncash Non-cash Consideration received by the Company or any such Restricted Subsidiary in the an Asset Sale having an aggregate fair market value, as determined by the Board of the CompanyFair Market Value, taken together with all other Designated Noncash Non-cash Consideration received pursuant to this clause (D) that is at that time outstanding, not to exceed the greater of:
of (1i) 2.0% of the Company’s Consolidated Total Assets and (ii) $10,000,000; and
(2) 15% of Consolidated Tangible Assets 55.0 million at the time of the receipt of such Designated Noncash Consideration (Non-cash Consideration, with the fair market value Fair Market Value of each item of such Designated Noncash Non-cash Consideration being measured at the time received and without giving effect to subsequent changes in value);
(E) Indebtedness of any Restricted Subsidiary 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 are released from any guarantee of payment of such Indebtedness in connection with such Asset Sale; and
(F) consideration consisting of long-term Indebtedness of the Company (other than Subordinated Indebtedness) received after the date of this Indenture from Persons who are not the Company or any Restricted Subsidiary which is promptly terminated or cancelled by the Company.
(iib) If the Company or any Restricted Subsidiary engages in an Asset Sale, the Company may, at its option, within 12 months after or such Asset Sale, Restricted Subsidiary shall apply an amount equal to all or any of the Net Proceeds therefrom to:
(1) apply repay, redeem, prepay, repurchase or otherwise extinguish Indebtedness under any Credit Facility, and in the case of any such repayment under any revolving credit facility, effect a permanent reduction in the availability under such revolving credit facility, or repay Indebtedness (other than Disqualified Stock) of a Restricted Subsidiary that is not a Guarantor (other than Indebtedness owed to the Company);
(2) (A) invest all or a portion any part of the Net Cash Proceeds thereof in capital expenditures or the purchase of assets to be used by the permanent reduction Company or any Restricted Subsidiary in a Permitted Business, (B) acquire all or substantially all of amounts outstanding under the Credit Agreement assets of a Permitted Business or Equity Interests in a Person that is a Restricted Subsidiary or in a Person engaged primarily in a Permitted Business that shall become a Restricted Subsidiary immediately upon the consummation of such acquisition or (C) a combination of (A) and (B);
(3) to correspondingly reduce the commitments, if any, with respect thereto) or to the permanent repayment of other Senior Indebtedness fund obligations of the Company or a any Restricted Subsidiary, provided that the repayment of any Indebtedness incurred Subsidiary under the Credit Agreement in connection with the acquisition of Partnership Parks Agreements; or
(4) any Facility with the proceeds of any subsequent Sale and Leaseback Transaction relating to such Facility shall not be required to result in the permanent reduction combination of the amounts outstanding under the Credit Agreement or correspondingly permanently reduce the commitments thereunder, or (2) invest (or enter into a legally binding agreement to invest) all or a portion of such Net Cash Proceeds in properties and assets to replace the properties and assets that were the subject of the Asset Sale or in properties and assets that will be used in the businesses of the Company or its Restricted Subsidiaries, as the case may be, existing on the Closing Date or in businesses the same, similar or reasonably related thereto. If any such legally binding agreement to invest such Net Cash Proceeds is terminated, the Company may, within 90 days of such termination or within 12 months of such Asset Sale, whichever is later, invest such Net Cash Proceeds as provided in clause (1) or (2) (without regard to the parenthetical contained in such clause (2)) aboveforegoing. Pending the final application of an amount equal to any such Net Cash Proceeds, the Company or such Restricted Subsidiary may temporarily reduce revolving credit borrowings indebtedness under a Credit Facility, if any, or otherwise invest such Net Cash Proceeds in a any manner that is not prohibited by this AgreementIndenture. The Any Net Proceeds from any Asset Sale that is not applied or invested (or committed pursuant to a written agreement to be applied) as provided in the preceding paragraph within 365 days after the receipt thereof and, in the case of any amount of committed to a reinvestment, which are not actually so applied within 180 days following such Net Cash Proceeds not so used as set forth above in this paragraph 365-day period shall constitute "“Excess Proceeds."
(c) ” When the aggregate cumulative amount of Excess Proceeds exceeds $10,000,000, the Company will50.0 million aggregate amount in any fiscal year, within 30 days thereafterthereof, the Company will be obligated to make an offer to purchase (an "Excess Proceeds Offer") from Offer to all Holders of the Notes on a pro rata basis, in accordance with the procedures set forth in this Agreement, to purchase the maximum principal amount (expressed as a multiple of $1,000) of Notes that may be purchased with the out of such Excess Proceeds, Proceeds at a purchase an offer price in cash in an amount equal to 100% of the principal amount thereof, plus together with accrued interestand unpaid interest to, if anybut excluding, the date fixed for the closing of such offer in accordance with the procedures set forth in this Indenture. To the extent the Company or a Restricted Subsidiary is required under the terms of Indebtedness of the Company or such Restricted Subsidiary (other than Subordinated Indebtedness), the Company shall also make a pro rata offer to the holders of such Indebtedness (including the Notes) with such Excess Proceeds. The Company will deliver notice of such Excess Proceeds Offer electronically or by first-class mail, with a copy to the Trustee and each Holder of Notes at the address of such Holder appearing in the security register or otherwise in accordance with the applicable procedures of DTC, describing the transaction or transactions that constitute the Asset Sale and offering to repurchase the Notes for the specified purchase price on the date specified in the notice, which date will be no earlier than 30 days and no later than 60 days from the date such offer notice is delivered, pursuant to purchase is consummatedthe procedures required by this Indenture and described in such notice. The Company may satisfy the foregoing obligations with respect to any Net Proceeds from an Asset Sale by making an Excess Proceeds Offer with respect to all Net Proceeds prior to the expiration of the relevant 450 days (or such longer period provided above) or with respect to any unapplied Excess Proceeds. To the extent that any portion of Net Proceeds payable in respect of the aggregate principal Notes is denominated in a currency other than U.S. dollars, the amount thereof payable in respect of the Notes shall not exceed the net amount of Notes tendered pursuant to such offer to purchase funds in U.S. dollars that is less than the Excess Proceeds, actually received by the Company may use upon converting such deficiency for general corporate purposesportion into U.S. dollars. If the aggregate principal amount of Notes validly tendered and not withdrawn other parity Indebtedness surrendered by holders thereof exceeds the amount of such Excess Proceeds, the Trustee shall select the Notes to be purchased will be selected on a pro rata basisbasis (except that any Notes represented by a note in global form will be selected by such method as DTC may require), based on the amounts tendered (with such adjustments as may be deemed appropriate by the Company so that only Notes in denominations of $2,000, or an integral multiple of $1,000 in excess thereof, will be purchased). To the extent that the principal amount of Notes tendered pursuant to an Excess Proceeds Offer is less than the amount of such Excess Proceeds, the Company may use any remaining Excess Proceeds for general corporate purposes in compliance with the provisions of this Indenture. Upon completion of such offer to purchasean Excess Proceeds Offer, the amount of Excess Proceeds shall be reset at zero. Additionally, the Company may, at its option, make an Excess Proceeds Offer using proceeds from any Asset Sale at any time after the consummation of such Asset Sale. Upon consummation or expiration of any Excess Proceeds Offer, any remaining Net Proceeds shall not be deemed Excess Proceeds and the Company may use such Net Proceeds for any purpose not prohibited by this Indenture. Notwithstanding any other provisions of this Section 4.10, (i) to the extent that any of or all the Net Proceeds of any Asset Sale by a Foreign Subsidiary (a “Foreign Disposition”) is prohibited or delayed by applicable local law from being repatriated to the United States, the portion of such Net Proceeds so affected will not be required to be applied in compliance with this covenant so long, but only so long, as the applicable local law, documents or agreements or impediment will not permit repatriation to the United States (the Company hereby agreeing to use reasonable efforts (as determined in the Company’s reasonable business judgment) to otherwise cause the applicable Foreign Subsidiary to within one year following the date on which the respective payment would otherwise have been required, promptly take all actions reasonably required by the applicable local law, applicable organizational impediments or other impediment to permit such repatriation), and if 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, applicable organizational impediment or other impediment, such repatriated Net Proceeds will be reset promptly (and in any event not later than five (5) Business Days after such repatriation could be made) applied (net of additional taxes payable or reserved against as a result thereof) (whether or not repatriation actually occurs) in compliance with this covenant and (ii) to zero.
the extent that the Company has determined in good faith that repatriation of any of or all the Net Proceeds of any Foreign Disposition would have an adverse tax consequence (iii) which for the avoidance of doubt, includes, but is not limited to, any prepayment whereby doing so the Company, any Restricted Subsidiary or any of their respective Affiliates and/or equity owners would incur a tax liability, including a taxable dividend, deemed dividend pursuant to Code Section 956 or a withholding tax), the Net Proceeds so affected will not be required to be applied in compliance with this covenant. The non-application of any prepayment amounts as a consequence of the foregoing provisions will not, for the avoidance of doubt, constitute a Default or an Event of Default. The Company will be required to comply with the requirements of Rule 14e-1 under the Exchange Act and any other securities laws and regulations thereunder to the extent such laws and regulations are applicable in connection with each repurchase of the Notes pursuant to required in the event of an Excess Proceeds Offer. To the extent that the provisions of any securities laws or regulations conflict with the Asset Sales provisions of this Agreement, the Company will comply with the applicable securities laws and regulations Offer and will not be deemed to have breached its obligations under Section 5(j) 3.09 hereof as a result thereof. The provisions of this Agreement by virtue Indenture relative to the Company’s obligation to make an offer to repurchase the Notes as a result of such conflictan Asset Sale may be waived or modified with the written consent of the holders of a majority in principal amount of the outstanding Notes.
Appears in 1 contract
Asset Sales. (ia) The Company shall will not, and shall will not permit any of its Restricted Subsidiary Subsidiaries to, engage in any consummate an Asset Sale unless unless:
(x1) the Company (or the Restricted Subsidiary, as the case may be) receives consideration at the time of such Asset Sale at least equal to the Fair Market Value of the assets or Equity Interests issued or sold or otherwise disposed of; and
(2) at least 75% of the aggregate consideration received in respect of such Asset Sale by the Company or such Restricted Subsidiary for such Asset Sale is not less than the fair market value of the assets sold evidenced by (considered together on a resolution of the board of directors of such entity set forth in an Officers' Certificate delivered to the Holders and (y) the cumulative basis, with all consideration received by the Company or the relevant any of its Restricted Subsidiary Subsidiaries in respect of such other Asset Sale consists Sales consummated since the Prior Issue Date), is in the form of at least 75% cash or Cash Equivalents (for Equivalents. For purposes of this clause (y)provision, cash and Cash Equivalents includes each of the following will be deemed to be cash:
(A) any liabilities (liabilities, as reflected in shown on the Company's ’s most recent consolidated balance sheet) , of the Company or any Restricted Subsidiary (other than contingent liabilities liabilities, Subordinated Debt and liabilities that are by their terms subordinated to the Notes or any Guaranteeobligations in respect of preferred stock) that are assumed or forgiven by any the transferee of any such assets or Equity Interests pursuant to a novation agreement (or other property in such Asset Sale, and where legal documentation with the same effect) that includes a full release of the Company or the relevant such Restricted Subsidiary is released from any further and all liability in connection therewith with respect to such liabilities, therefor;
(B) any securities, notes or other similar obligations received by the Company or any such Restricted Subsidiary from such transferee that are converted within 180 days of the consummation of the related Asset Sale by the Company or such Restricted Subsidiary into cash and Cash Equivalents (within 90 days after the date of the Asset Sale, to the extent of the net cash proceeds or the Cash Equivalents (net of related costs) received upon such in that conversion) and ;
(C) any Capital Stock or assets of the kind referred to in clause (2) of Section 4.10(c) below; and
(D) any Designated Noncash Non-cash Consideration received by the Company or any such Restricted Subsidiary in the such Asset Sale having an aggregate fair market value, as determined by the Board of the CompanyFair Market Value, taken together with all other Designated Noncash Non-cash Consideration received pursuant to this clause that is at that time outstanding(D), not to exceed the greater of:
(1) $10,000,000; and
(2) 15an amount equal to 5.0% of Adjusted Consolidated Net Tangible Assets of the Company (determined at the time of the receipt of such Designated Noncash Consideration (Non-cash Consideration), with the fair market value Fair Market Value of each item of such Designated Noncash Non-cash Consideration being measured at the time received and without giving effect to subsequent changes in value).
(iib) If Notwithstanding the foregoing, the 75% limitation referred to above in Section 4.10(a) shall be deemed satisfied with respect to any Asset Sale in which the cash or Cash Equivalents portion of the consideration received therefrom, determined in accordance with Section 4.10(a) on an after-tax basis, is equal to or greater than what the after-tax proceeds would have been had such Asset Sale complied with the aforementioned 75% limitation.
(c) Within 365 days after the receipt of any Net Proceeds from an Asset Sale or, if the Company has entered into a binding commitment or commitments with respect to any Restricted Subsidiary engages of the actions described in clauses (2) or (3) below, within the later of (x) 365 days after the receipt of any Net Proceeds from an Asset SaleSale or (y) 120 days after the entering into of such commitment or commitments, the Company may, at its option, within 12 months after such Asset Sale, (1) apply all or a portion of the Net Cash Proceeds to the permanent reduction of amounts outstanding under the Credit Agreement (and to correspondingly reduce the commitments, if any, with respect thereto) or to the permanent repayment of other Senior Indebtedness of the Company or a applicable Restricted Subsidiary, provided that the repayment of any Indebtedness incurred under the Credit Agreement in connection with the acquisition of any Facility with the proceeds of any subsequent Sale and Leaseback Transaction relating to such Facility shall not be required to result in the permanent reduction of the amounts outstanding under the Credit Agreement or correspondingly permanently reduce the commitments thereunder, or (2) invest (or enter into a legally binding agreement to invest) all or a portion of such Net Cash Proceeds in properties and assets to replace the properties and assets that were the subject of the Asset Sale or in properties and assets that will be used in the businesses of the Company or its Restricted Subsidiaries, as the case may be, existing on the Closing Date or in businesses the same, similar or reasonably related thereto. If any ) may apply such legally binding agreement Net Proceeds:
(1) to permanently repay Senior Debt;
(2) to invest in Additional Assets; or
(3) to make capital expenditures in respect of a Related Business of the Company or any of its Restricted Subsidiaries. However, pending application or investment of such Net Cash Proceeds is terminated, the Company may, within 90 days of such termination or within 12 months of such Asset Sale, whichever is later, invest such Net Cash Proceeds as provided in clause clauses (1) or through (2) (without regard to the parenthetical contained in such clause (2)3) above. Pending the final application of any , such Net Cash Proceeds, the Company Proceeds may be applied to temporarily reduce revolving credit borrowings Indebtedness or otherwise invest such Net Cash Proceeds in a any other manner that is not prohibited by this AgreementIndenture. The An amount of such equal to any Net Cash Proceeds from Asset Sales that are not so used applied or invested as set forth provided in clauses (1) through (3) above in this paragraph shall will constitute "“Excess Proceeds."”
(cd) When Within ten Business Days after the aggregate amount of Excess Proceeds exceeds $10,000,00050.0 million, the Company will, within 30 days thereafter, will make an offer to purchase (an "Excess Proceeds “Asset Sale Offer"”) from to all Holders of Notes on a pro rata basis, in accordance and all holders of other Indebtedness that is pari passu with the procedures Notes containing provisions similar to those set forth in this AgreementIndenture with respect to offers to purchase or redeem with the proceeds of sales of assets, to purchase the maximum principal amount (expressed as a multiple of $1,000) of Notes and such other pari passu Indebtedness that may be purchased with out of the Excess Proceeds, at a purchase . The offer price in cash any Asset Sale Offer will be equal to 100% of the principal amount thereof, plus accrued and unpaid interest, if any, to the date such offer to purchase is consummatedof purchase, and will be payable in cash. To the extent that the aggregate principal amount If any Excess Proceeds remain after consummation of Notes tendered pursuant to such offer to purchase is less than the Excess Proceedsan Asset Sale Offer, the Company or any Restricted Subsidiary may use such deficiency those Excess Proceeds for general corporate purposesany purpose not otherwise prohibited by this Indenture. If the aggregate principal amount of Notes validly and other pari passu Indebtedness tendered and not withdrawn by holders thereof into such Asset Sale Offer exceeds the amount of Excess Proceeds, the Company will use the Excess Proceeds to purchase the Notes to be purchased will be selected and such other pari passu Indebtedness on a pro rata basis. Upon completion of such offer to purchaseeach Asset Sale Offer, the amount of Excess Proceeds will be reset to at zero.
(iiie) Notwithstanding the foregoing, the sale, conveyance or other disposition of all or substantially all of the properties or assets of the Company and its Restricted Subsidiaries, taken as a whole, will be governed by Sections 5.01 and/or 4.15 of this Indenture, as applicable, and not by this Section 4.10.
(f) The Company will comply with the requirements of Rule 14e-1 under the Exchange Act and any other securities laws and regulations thereunder to the extent such those laws and regulations are applicable in connection with each repurchase of Notes pursuant to an Excess Proceeds Asset Sale Offer. To the extent that the provisions of any securities laws or regulations conflict with the Asset Sales provisions of this AgreementIndenture, or compliance with the Asset Sales provisions of this Indenture would constitute a violation of any such laws or regulations, the Company will comply with the applicable securities laws and regulations and will not be deemed to have breached its obligations under Section 5(j) the Asset Sales provisions of this Agreement Indenture by virtue of such conflictcompliance.
(g) In the event that, pursuant to this Section 4.10, the Company is required to commence an Asset Sale Offer, it will follow the procedures specified below:
(1) The Asset Sale Offer shall be made to all Holders and all holders of other Indebtedness that is pari passu with the Notes containing provisions similar to those set forth in the Indenture with respect to offers to purchase or redeem with the proceeds of sales of assets. The Asset Sale Offer will remain open for a period of at least 20 Business Days following its commencement and not more than 30 Business Days, except to the extent that a longer period is required by applicable law (the “Offer Period”). No later than three Business Days after the termination of the Offer Period (the “Purchase Date”), the Company will apply all Excess Proceeds (the “Offer Amount”) to the purchase of Notes and such other pari passu Indebtedness (on a pro rata basis, if applicable) or, if less than the Offer Amount has been tendered, all Notes and other Indebtedness tendered in response to the Asset Sale Offer. Payment for any Notes so purchased will be made in the same manner as interest payments are made.
(2) If the Purchase Date is on or after an interest record date and on or before the related Interest Payment Date, any accrued and unpaid interest will be paid to the Person in whose name a Note is registered at the close of business on such record date, and no additional interest will be payable to Holders who tender Notes pursuant to the Asset Sale Offer.
(3) Upon the commencement of an Asset Sale Offer, the Company will send, by first class mail, a notice to the Trustee and each of the Holders. The notice will contain all instructions and materials necessary to enable such Holders to tender Notes pursuant to the Asset Sale Offer. The notice, which will govern the terms of the Asset Sale Offer, will state:
(A) that the Asset Sale Offer is being made pursuant to this Section 4.10 and the length of time the Asset Sale Offer will remain open;
(B) the Offer Amount, the purchase price and the Purchase Date;
(C) that any Note not tendered or accepted for payment will continue to accrue interest;
(D) that, unless the Company defaults in making such payment, any Note accepted for payment pursuant to the Asset Sale Offer will cease to accrue interest after the Purchase Date;
(E) that Holders electing to have a Note purchased pursuant to an Asset Sale Offer may elect to have Notes purchased in denominations of $2,000 and integral multiples of $1,000 in excess of $2,000 only;
(F) that Holders electing to have Notes purchased pursuant to any Asset Sale Offer will be required to surrender the Notes, with the form entitled “Option of Holder to Elect Purchase” attached to the Notes completed, or transfer by book-entry transfer, to the Company, a depositary, if appointed by the Company, or a Paying Agent at the address specified in the notice prior to the close of business on the third Business Day preceding the Purchase Date;
(G) that Holders will be entitled to withdraw their election if the Company, the depositary or the Paying Agent, as the case may be, receives, not later than the expiration of the Offer Period, a telegram, telex, facsimile transmission or letter setting forth the name of the Holder, the principal amount of the Note the Holder delivered for purchase and a statement that such Xxxxxx is withdrawing his election to have such Note purchased;
(H) that, if the aggregate principal amount of Notes and other pari passu Indebtedness surrendered by Holders thereof exceeds the Offer Amount, the Company will select the Notes and other pari passu Indebtedness to be purchased on a pro rata basis based on the principal amount of Notes and such other pari passu Indebtedness surrendered (with such adjustments as may be deemed appropriate by the Company so that only Notes in denominations of $2,000, or an integral multiple of $1,000 in excess of $2,000, will be purchased); and
(I) that Holders whose Notes were purchased only in part will be issued new Notes equal in principal amount to the unpurchased portion of the Notes surrendered (or transferred by book-entry transfer), which unpurchased portion must be equal to $2,000 in principal amount or an integral multiple of $1,000 in excess of $2,000.
(4) On or before the Purchase Date, the Company will, to the extent lawful, accept for payment, on a pro rata basis to the extent necessary, the Offer Amount of Notes or portions thereof tendered pursuant to the Asset Sale Offer, or if less than the Offer Amount has been tendered, all Notes tendered, and will deliver or cause to be delivered to the Trustee the Notes properly accepted together with an Officers’ Certificate stating that such Notes or portions thereof were accepted for payment by the Company in accordance with the terms of this Section 4.10. The Company, the depositary or the Paying Agent, as the case may be, will promptly (but in any case not later than five days after the Purchase Date) mail or deliver to each tendering Holder an amount equal to the purchase price of the Notes tendered by such Holder and accepted by the Company for purchase, and the Company will promptly issue a new Note, and the Trustee, upon written request from the Company, will authenticate and mail or deliver (or cause to be transferred by book entry) such new Note to such Holder, in a principal amount equal to any unpurchased portion of the Note surrendered. Any Note not so accepted shall be promptly mailed or delivered by the Company to the Holder thereof. The Company will publicly announce the results of the Asset Sale Offer on the Purchase Date.
Appears in 1 contract
Samples: Indenture (Oasis Petroleum Inc.)
Asset Sales. (a) The Company will not, and will not permit any of its Restricted Subsidiaries to cause, make or suffer to exist any Asset Sale, unless:
(i) The Company shall not, no Default exists or is continuing immediately prior to and shall not permit any Restricted Subsidiary to, engage in any after giving effect to such Asset Sale unless Sale;
(xii) the Company (or the Restricted Subsidiary, as the case may be) receives consideration received by at the Company or such Restricted Subsidiary for time of such Asset Sale is not less than at least equal to the fair market value (evidenced for purposes of the assets sold evidenced this Section 4.10 by a resolution of the board Board of directors of such entity Directors set forth in an Officers' Certificate delivered to the Holders and Trustee) of the assets sold or otherwise disposed of; and
(yiii) at least 80% of the consideration therefor received by the Company or the relevant such Restricted Subsidiary is in respect the form of (w) Cash Equivalents, (x) Replacement Assets, (y) publicly traded Equity Interests of a Person who is, directly or indirectly, engaged primarily in one or more Cable Businesses; provided, however, that the Company or such Restricted Subsidiary shall Monetize such Equity Interests by sale to one or more Persons (other than to the Company or a Subsidiary thereof) at a price not less than the fair market value thereof within 180 days of the consummation of such Asset Sale consists Sale, or (z) any combination of at least 75% cash or Cash Equivalents the foregoing clauses (for purposes of this clause w) through (y); provided, cash and Cash Equivalents includes however, that the amount of (Ax) any liabilities (as reflected in shown on the Company's consolidated or such Restricted Subsidiary's most recent balance sheetsheet or in the notes thereto) of the Company or any Restricted Subsidiary (other than contingent liabilities and liabilities that are by their terms subordinated to the Notes or any GuaranteeNotes) that are assumed by any the transferee of any such assets or other property in such Asset Sale, and where the Company or the relevant Restricted Subsidiary is released from any further liability in connection therewith with respect to such liabilities, (By) any securities, notes or other similar obligations received by the Company or any such Restricted Subsidiary from such transferee that are within five Business Days converted within 180 days of the consummation of the related Asset Sale by the Company or such Restricted Subsidiary into cash and cash, shall be deemed to be Cash Equivalents (to the extent of the net cash proceeds or the Cash Equivalents (net of related costs) received upon in such conversion) and (C) any Designated Noncash Consideration received by the Company or any such Restricted Subsidiary in the Asset Sale having an aggregate fair market value, as determined by the Board for purposes of the Company, taken together with all other Designated Noncash Consideration received pursuant to this clause that is at that time outstanding, not to exceed the greater of:
(1) $10,000,000; and
(2) 15% of Consolidated Tangible Assets at the time of the receipt of such Designated Noncash Consideration (with the fair market value of each item of such Designated Noncash Consideration being measured at the time received and without giving effect to subsequent changes in valueiii).
(iib) If the Company or Within 360 days after any Restricted Subsidiary engages in an Asset Sale, the Company may, at its option, within 12 months after such Asset Sale, (1) apply all or a portion of the Net Cash Proceeds to the permanent reduction of amounts outstanding under the Credit Agreement (and to correspondingly reduce the commitments, if any, with respect thereto) or to the permanent repayment of other Senior Indebtedness of the Company or a Restricted Subsidiary, provided that the repayment of any Indebtedness incurred under the Credit Agreement in connection with the acquisition of any Facility with the proceeds of any subsequent Sale and Leaseback Transaction relating to such Facility shall not be required to result in the permanent reduction of the amounts outstanding under the Credit Agreement or correspondingly permanently reduce the commitments thereunder, or (2) invest (or enter into a legally binding agreement to invest) all or a portion of such Net Cash Proceeds in properties and assets to replace the properties and assets that were the subject of the Asset Sale or in properties and assets that will be used in the businesses of the Company or its Restricted Subsidiaries, as the case may be, existing on ) shall cause the Closing Date or in businesses the same, similar or reasonably related thereto. If any such legally binding agreement to invest such Net Cash Proceeds is terminated, the Company may, within 90 days of such termination or within 12 months of from such Asset Sale, whichever is later, invest such Net Cash Proceeds as provided :
(i) to be used to permanently reduce Indebtedness of a Restricted Subsidiary; or
(ii) to be invested or reinvested in clause (1) or (2) (without regard to the parenthetical contained in such clause (2)) aboveReplacement Assets. Pending the final application of any such Net Cash Proceeds, the Company may temporarily reduce revolving credit borrowings or otherwise invest such Net Cash Proceeds in a any manner that is not prohibited by this AgreementIndenture or the indentures for the Applicable Notes or the Other Qualified Notes. The amount of such Any Net Cash Proceeds from any Asset Sale that are not so used or reinvested as set forth above provided in this paragraph shall the preceding sentence constitute "Excess Proceeds."
(c) " When the aggregate amount of Excess Proceeds exceeds $10,000,00015 million, the Company will, within 30 days thereafter, shall make an offer to purchase (an "Excess Proceeds Asset Sale Offer") from to all Holders holders of Notes and Other Qualified Notes to purchase the maximum principal amount of Notes and Other Qualified Notes (determined on a pro rata basisbasis according to the accreted value or principal amount, as the case may be, of the Notes and the Other Qualified Notes and in accordance with Section 3.09(g)(i); provided, however, that the Asset Sale Offer must be made first to 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 the indenture related to each issue of the Other Qualified Notes and (y) with respect to the Notes, 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 this Agreement, the maximum principal amount (expressed as a multiple of $1,000) of Notes that may be purchased with the Excess Proceeds, at a purchase price in cash equal to 100% of the principal amount thereof, plus accrued interest, if any, to the date such offer to purchase is consummatedSection 3.09 hereof. To the extent that the aggregate principal amount or accreted value, as the case may be, of Notes and Other Qualified Notes tendered pursuant to such offer to purchase an Asset Sale Offer is less than the Excess Proceeds, if any, remaining after the consummation of the aforementioned Asset Sale Offer to the holders of the Applicable Notes, the Company may use such deficiency for general corporate purposes. If the aggregate principal amount or accreted value, as the case may be, of Notes validly tendered and not withdrawn Other Qualified Notes surrendered by holders thereof exceeds the amount of Excess Proceeds, if any, remaining after the consummation of the aforementioned Asset Sale Offer to the holders of the Applicable Notes, then such remaining Excess Proceeds shall be allocated pro rata according to accreted value or principal amount, as the case may be, to the Notes and each issue of the Other Qualified Notes and in accordance with Section 3.09(g)(ii), and the Trustee shall select the Notes to be purchased will be selected from the amount allocated to the Notes on a pro rata basisthe basis set forth in Section 3.09(e) hereof. Upon completion of such offer offers to purchasepurchase each of the Applicable Notes and the Notes and the Other Qualified Notes, the amount of Excess Proceeds will be reset at zero. No such Asset Sale Offer to zeropurchase the Notes 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 the 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 applied within five Business Days 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 Replacement Assets 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 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) The Company will comply with the requirements sell, transfer or otherwise dispose of Rule 14e-1 under the Exchange Act and any Long Distance/Microwave Assets; or
(iv) issue, sell, lease, transfer, convey or otherwise dispose of Equity Interests (other securities laws and regulations thereunder to the extent such laws and regulations are applicable in connection with each repurchase than Disqualified Stock) of Notes pursuant to an Excess Proceeds Offer. To the extent that the provisions of any securities laws or regulations conflict with the Asset Sales provisions of this Agreement, the Company will comply with the applicable securities laws and regulations and will not be deemed (or any Capital Stock Sale Proceeds therefrom) to have breached its obligations under Section 5(j) of this Agreement by virtue of such conflictany Person (including Non-Restricted Subsidiaries).
Appears in 1 contract
Samples: Indenture (NTL Inc /De/)
Asset Sales. (ia) The Company shall not, and shall not permit any of the Restricted Subsidiary Subsidiaries to, engage in any cause or make an Asset Sale Sale, unless (x) Company or 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 in good faith by Company) of the assets sold or otherwise disposed of, and (y) at least 75% of the consideration therefor received by the Company or such Restricted Subsidiary for such Asset Sale Subsidiary, as the case may be, is not less than in the fair market value form of Cash Equivalents; provided that the assets sold evidenced by a resolution of the board of directors of such entity set forth in an Officers' Certificate delivered to the Holders and amount of:
(y) the consideration received by the Company or the relevant Restricted Subsidiary in respect of such Asset Sale consists of at least 75% cash or Cash Equivalents (for purposes of this clause (y), cash and Cash Equivalents includes (Ai) any liabilities (as reflected shown on Company’s or a Restricted Subsidiary’s most recent balance sheet or in the Company's consolidated balance sheetnotes thereto) of the Company or any a Restricted Subsidiary (other than contingent liabilities and liabilities that are by their terms subordinated to the Notes Loans or any Guarantee) that are assumed by any the transferee of any such assets or other property in such Asset Sale, and where the Company that are otherwise cancelled or the relevant Restricted Subsidiary is released from any further liability terminated in connection therewith with respect to the transaction with such liabilities, transferee,
(Bii) any securities, notes or other similar obligations or other securities or assets received by the Company or any such Restricted Subsidiary from such transferee that are converted within 180 days of the consummation of the related Asset Sale by the Company or such Restricted Subsidiary into cash and Cash Equivalents within 180 days of the receipt thereof (to the extent of the net cash proceeds or received),
(iii) Indebtedness of any Restricted Subsidiary that is no longer a Restricted Subsidiary as a result of such Asset Sale, to the Cash Equivalents extent that Company and each other Restricted Subsidiary are released from any guarantee of payment of such Indebtedness in connection with the Asset Sale,
(net iv) consideration consisting of related costsIndebtedness of Company (other than Subordinated Indebtedness) received upon such conversion) and after the Effective Date from Persons who are not Company or any Restricted Subsidiary, and
(Cv) any Designated Noncash Non-cash Consideration received by the Company or any such Restricted Subsidiary in the such Asset Sale having an aggregate fair market value, Fair Market Value (as determined in good faith by the Board of the Company), taken together with all other Designated Noncash Non-cash Consideration received pursuant to this clause Section 7.4(a)(v) that is at that time outstanding, not to exceed the greater of:
(1) of $10,000,000; and
(2) 1530.0 million and 25% of Consolidated Tangible Assets EBITDA at the time of the receipt of such Designated Noncash Non-cash Consideration (with the fair market value Fair Market Value of each item of such Designated Noncash Non-cash Consideration being measured at the time received and without giving effect to subsequent changes in value), shall be deemed to be Cash Equivalents for the purposes of this Section 7.4(a).
(b) Within 365 days after Company’s or any Restricted Subsidiary’s receipt of the Net Proceeds of any Asset Sale, Company or such Restricted Subsidiary may apply 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 Agreement (and, if the Indebtedness repaid is revolving credit Indebtedness, to correspondingly reduce commitments with respect thereto), (B) Indebtedness of a Restricted Subsidiary that is not a Guarantor, (C) the obligations under the Loans or (D) other Pari Passu Indebtedness (provided that if Company or any Guarantor shall so reduce the Obligations under unsecured Pari Passu Indebtedness under this clause (D), Company will equally and ratably reduce the Obligations hereunder), in each case other than Indebtedness owed to Company or an Affiliate of Company; or
(ii) If the Company to make an investment in any one or any Restricted Subsidiary engages in an Asset Sale, the Company may, at its option, within 12 months after such Asset Sale, more businesses (1) apply all or a portion of the Net Cash Proceeds to the permanent reduction of amounts outstanding under the Credit Agreement (and to correspondingly reduce the commitments, if any, with respect thereto) or to the permanent repayment of other Senior Indebtedness of the Company or a Restricted Subsidiary, provided that if such investment is in the repayment form of any Indebtedness incurred under the Credit Agreement in connection with the acquisition of any Facility with the proceeds Capital Stock of any subsequent Sale and Leaseback Transaction relating to a Person, such Facility shall not be required to result acquisition results in the permanent reduction such Person becoming a Restricted Subsidiary of the amounts outstanding under the Credit Agreement or correspondingly permanently reduce the commitments thereunderCompany), assets, or property or capital expenditures, in each case (2A) invest used or useful in a Similar Business or (or enter into a legally binding agreement to investB) all or a portion of such Net Cash Proceeds in properties and assets to that replace the properties and assets that were 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 or in properties and assets giving rise to such Net Proceeds was contractually committed. In the case of Section 7.4(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 will be used in the businesses event such binding commitment is later canceled or terminated for any reason before such Net Proceeds are so applied, then such Net Proceeds shall constitute Excess Proceeds unless Company or such Restricted Subsidiary enters into another binding commitment (a “Second Commitment”) within six months of such cancellation or termination of the prior binding commitment; provided, further, that Company or its such Restricted Subsidiaries, as Subsidiary may only enter into a Second Commitment under the case may be, existing on foregoing provision one time with respect to each Asset Sale and to the Closing Date extent such Second Commitment is later cancelled or in businesses the same, similar or reasonably related thereto. If terminated for any such legally binding agreement to invest reason before such Net Cash Proceeds is terminated, the Company may, are applied or are not applied within 90 180 days of such termination or within 12 months of such Asset SaleSecond Commitment, whichever is later, invest then such Net Cash Proceeds as provided in clause (1) or (2) (without regard to the parenthetical contained in such clause (2)) aboveshall constitute Excess Proceeds. Pending the final application of any such Net Cash Proceeds, the Company or such Restricted Subsidiary may temporarily reduce Indebtedness under a revolving credit borrowings facility, if any, or otherwise invest such Net Cash Proceeds in a any manner that is not prohibited by this Agreement. The amount of such Any Net Cash Proceeds from any Asset Sale that are not so used applied as provided and within the time period set forth above in the first sentence of this paragraph shall Section 7.4(b) will be deemed to constitute "“Excess Proceeds."
(c) ” When the aggregate amount of Excess Proceeds exceeds $10,000,00025.0 million, Company shall repay the Company willLoans pursuant to Section 2.3(b) (and, within 30 days thereafterat the option of the Company, make Pari Passu Indebtedness) in an offer amount equal to purchase (an "the Excess Proceeds Offer") from all Holders of Notes on a pro rata basisand, in accordance with the procedures set forth in this Agreement, the maximum principal amount (expressed as a multiple of $1,000) of Notes that may be purchased with the Excess Proceeds, at a purchase price in cash equal to 100% of the principal amount thereof, plus accrued interest, if any, to the date upon such offer to purchase is consummated. To the extent that the aggregate principal amount of Notes tendered pursuant to such offer to purchase is less than the Excess Proceeds, the Company may use such deficiency for general corporate purposes. If the aggregate principal amount of Notes validly tendered and not withdrawn by holders thereof exceeds the Excess Proceeds, the Notes to be purchased will be selected on a pro rata basis. Upon completion of such offer to purchase, prepayment the amount of Excess Proceeds will shall be reset at zero. Notwithstanding anything herein to zero.
(iii) The the contrary, the Company will comply shall not be required to apply the Net Proceeds of any Asset Sale in accordance with the requirements of Rule 14e-1 under the Exchange Act and any other securities laws and regulations thereunder this Section 7.4 to the extent that such laws Net Proceeds arise from an Asset Sale of a Foreign Subsidiary or the assets thereof, and regulations are applicable in connection with each repurchase the distribution of Notes pursuant such Net Proceeds to an Excess Proceeds Offer. To the extent that the provisions of any securities laws or regulations conflict with the Asset Sales provisions of this Agreement, the Company will in order to comply with the applicable securities laws and regulations and will not be deemed to have breached its obligations under this Section 5(j) of this Agreement by virtue of such conflict7.4 would cause material adverse tax consequences.
Appears in 1 contract
Samples: Senior Unsecured Bridge Term Loan Credit Agreement (XPO Logistics, Inc.)
Asset Sales. If the Company or any Restricted Subsidiary, in a single transaction or a series of related transactions:
(a) sells, leases (in a manner that has the effect of a disposition), conveys or otherwise disposes of any of its assets (including by way of a sale-and- leaseback transaction), other than: (i) The sales or other dispositions of inventory in the ordinary course of business; (ii) sales or other dispositions to the Company shall not, and shall not permit any or a Wholly-Owned Restricted Subsidiary to, engage in any Asset Sale unless (x) of the consideration received Company by the Company or such any Restricted Subsidiary Subsidiary; (iii) sales or other dispositions of accounts receivable to DNCC for such Asset Sale is not less than cash in an amount at least equal to the fair market value of such accounts receivable; (iv) sales or other dispositions of rights to construct or launch satellites; and (v) sales or other dispositions permitted under Section 4.21 of this Indenture (provided that the sale, lease, conveyance or other disposition of all or substantially all of the assets sold of the Company shall be governed by the provisions of Article 5 of this Indenture);
(b) issues or sells Equity Interests of any Restricted Subsidiary (other than any issue or sale of Equity Interests of ETC or a Subsidiary which constitutes a Non-Core Asset permitted under Section 4.21 of this Indenture); in either case, which assets or Equity Interests: (i) have a fair market value in excess of $50 million (as determined in good faith by the Board of Directors of the Company evidenced by a resolution of the board Board of directors Directors of such entity the Company and set forth in an Officers' Certificate delivered to the Holders Trustee); or (ii) are sold or otherwise disposed of for net proceeds in excess of $50 million (each of the foregoing, an "Asset Sale"), then:
(A) The Company or such Restricted Subsidiary, as the case may be, must receive consideration at the time of such Asset Sale at least equal to the fair market value (as determined in good faith by the Board of Directors of the Company evidenced by a resolution of the Board of Directors of the Company) and set forth in an Officers' Certificate delivered to the Trustee not later than ten business days following a request from the Trustee which certificate shall cover each Asset Sale made in the six months preceding the date of request of the assets sold or otherwise disposed of; and
(yB) at least 75% of the consideration therefor received by the Company or such Restricted Subsidiary, as the relevant case may be, must be in the form of (x) cash, Cash Equivalents or Marketable Securities, (y) any asset which is promptly (and in no event later than 90 days after the date of transfer to the Company or a Restricted Subsidiary in respect Subsidiary) converted into cash; provided that to the extent that such conversion is at a price that is less than the fair market value (as determined above) of such asset at the time of the Asset Sale consists in which such asset was acquired, the Company shall be deemed to have made a Restricted Payment in the amount by which such fair market value exceeds the cash received upon conversion; and/or (z) properties and capital assets (excluding Equity Interests) to be used by the Company or any of its Restricted Subsidiaries in a business permitted under Section 4.17 of this Indenture; provided, however, that up to $40 million of assets in addition to assets specified in clauses (x), (y) or (z) above at least 75% any one time may be considered to be cash or Cash Equivalents (for purposes of this clause (yB), provided that the provisions of the next paragraph are complied with as such non-cash and Cash Equivalents includes (A) assets are converted to cash. The amount of any liabilities (as reflected in the Company's consolidated balance sheet) of the Company or any Restricted Subsidiary (other than contingent liabilities and liabilities that are by their terms subordinated to the Notes or any Guarantee) that are assumed by any or on behalf of the transferee of any such assets or other property in such connection with an Asset Sale, Sale (and where from which the Company or the relevant such Restricted Subsidiary is released unconditionally released) shall be deemed to be cash for the purpose of this clause (B). The Net Proceeds from such Asset Sale shall be used only: (i) to acquire assets used in, or stock or other ownership interests in a Person that upon the consummation of such Asset Sale becomes a Restricted Subsidiary and will be engaged primarily in, the business of the Company as described under Section 4.17 of this Indenture, to repurchase the Notes or 1999 Notes or if the Company sells any of its satellites after launch such that the Company or its Restricted Subsidiaries own less than three in-orbit satellites, only to purchase a replacement satellite; or (ii) as set forth in the next sentence. Any Net Proceeds from any further liability Asset Sale that are not applied or invested as provided in connection therewith the preceding sentence within 365 days after such Asset Sale shall constitute "Excess Proceeds" and shall be applied to an offer to purchase Notes and other senior Indebtedness of the Company if and when required under Section 3.09 of this Indenture. Clause (B) of the second preceding paragraph shall not apply to all or such portion of the consideration: (i) as is properly designated by the Company in an Asset Sale as being subject to this paragraph; and (ii) with respect to such liabilities, (B) any securities, notes or other similar obligations which the aggregate fair market value at the time of receipt of all consideration received by the Company or any such Restricted Subsidiary from in all such transferee Asset Sales so designated does not exceed the amount that the Company and its Subsidiaries are converted within 180 days permitted to designate as a result of the consummation cash contributions made to the Company by EchoStar pursuant to the 1999 Notes Indentures, plus, to the extent any such consideration did not satisfy clauses (B)(x) or (B)(z) above, upon the exchange or repayment of such consideration for or with assets which satisfy such clauses, an amount equal to the fair market value of such consideration (evidenced by a resolution of the related Board of Directors of the Company and set forth in an Officers' Certificate delivered to the Trustee as set forth in clause (A) above). In addition, clause (B) above shall not apply to any Asset Sale by Sale: (x) where assets not essential to the direct broadcast satellite business are contributed to a joint venture between the Company or one of its Restricted Subsidiaries and a third party that is not an Affiliate of EchoStar or any of its Subsidiaries; provided that following the sale, lease, conveyance or other disposition the Company or one of its Wholly Owned Restricted Subsidiaries owns at least 50% of the voting and equity interest in such Restricted Subsidiary into cash and Cash Equivalents joint venture, (y) to the extent of the net cash proceeds or the Cash Equivalents (net of related costs) received upon such conversion) and (C) any Designated Noncash Consideration consideration therefor received by the Company or any such a Restricted Subsidiary in the Asset Sale having an aggregate fair market value, as determined by the Board would constitute Indebtedness or Equity Interests of the Company, taken together with all other Designated Noncash Consideration received pursuant to this clause a Person that is at that time outstandingnot an Affiliate of EchoStar, not to exceed the greater of:
(1) $10,000,000; and
(2) 15% of Consolidated Tangible Assets at the time of the receipt of such Designated Noncash Consideration (with the fair market value of each item of such Designated Noncash Consideration being measured at the time received and without giving effect to subsequent changes in value).
(ii) If the Company or any Restricted Subsidiary engages in an Asset Sale, the Company may, at its option, within 12 months after such Asset Sale, (1) apply all or a portion one of the Net Cash Proceeds to the permanent reduction of amounts outstanding under the Credit Agreement (and to correspondingly reduce the commitments, if any, with respect thereto) or to the permanent repayment of other Senior Indebtedness of the Company or a Restricted Subsidiary, their respective Subsidiaries; provided that the repayment of any Indebtedness incurred under the Credit Agreement in connection with the acquisition of any Facility with the proceeds of any subsequent Sale and Leaseback Transaction relating to such Facility shall not be required to result in the permanent reduction of the amounts outstanding Indebtedness or Equity Interests is permitted under the Credit Agreement or correspondingly permanently reduce the commitments thereunder, or (2) invest (or enter into a legally binding agreement to invest) all or a portion of such Net Cash Proceeds in properties and assets to replace the properties and assets that were the subject of the Asset Sale or in properties and assets that will be used in the businesses of the Company or its Restricted Subsidiaries, as the case may be, existing on the Closing Date or in businesses the same, similar or reasonably related thereto. If any such legally binding agreement to invest such Net Cash Proceeds is terminated, the Company may, within 90 days of such termination or within 12 months of such Asset Sale, whichever is later, invest such Net Cash Proceeds as provided in clause (1) or (2) (without regard to the parenthetical contained in such clause (2)) above. Pending the final application of any such Net Cash Proceeds, the Company may temporarily reduce revolving credit borrowings or otherwise invest such Net Cash Proceeds in a manner that is not prohibited by this Agreement. The amount of such Net Cash Proceeds not so used as set forth above in this paragraph shall constitute "Excess Proceeds."
(c) When the aggregate amount of Excess Proceeds exceeds $10,000,000, the Company will, within 30 days thereafter, make an offer to purchase (an "Excess Proceeds Offer") from all Holders of Notes on a pro rata basis, in accordance with the procedures set forth in this Agreement, the maximum principal amount (expressed as a multiple of $1,000) of Notes that may be purchased with the Excess Proceeds, at a purchase price in cash equal to 100% of the principal amount thereof, plus accrued interest, if any, to the date such offer to purchase is consummated. To the extent that the aggregate principal amount of Notes tendered pursuant to such offer to purchase is less than the Excess Proceeds, the Company may use such deficiency for general corporate purposes. If the aggregate principal amount of Notes validly tendered and not withdrawn by holders thereof exceeds the Excess Proceeds, the Notes to be purchased will be selected on a pro rata basis. Upon completion of such offer to purchase, the amount of Excess Proceeds will be reset to zero.
(iii) 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 Excess Proceeds Offer. To the extent that the provisions of any securities laws or regulations conflict with the Asset Sales provisions Section 4.07 of this AgreementIndenture and (z) where assets sold are satellites, uplink centers or call centers, provided that, in the case of clause (z) the Company will comply with the applicable securities laws and regulations its Restricted Subsidiaries continue to own at least three satellites, one uplink center and will not be deemed to have breached its obligations under Section 5(j) of this Agreement by virtue of such conflictone call center.
Appears in 1 contract
Samples: Indenture (Echostar DBS Corp)
Asset Sales. (i) The Neither the Company shall not, and shall not permit nor any Restricted Subsidiary towill, engage in any directly or indirectly:
(1) consummate an Asset Sale unless such entity receives consideration at the time of such Asset Sale at least equal to the fair market value of the assets sold or of which other disposition is made (as determined in good faith by the Board of such entity), and
(2) consummate or enter into a binding obligation to consummate an Asset Sale unless at least 75% of the consideration received by such entity from such Asset Sale will be cash or Cash Equivalents. For purposes of this provision, each of the following shall be deemed to be cash:
(A) any liabilities as shown on such entity’s most recent balance sheet (or in the notes thereto) (other than Indebtedness subordinate in right of payment to the Notes) that are assumed by the transferee of any such assets, and
(B) to the extent of the cash received, any notes or other obligations or securities received by such Obligor from such transferee that are converted by such entity into cash within 180 days of receipt. Notwithstanding the foregoing, the Company or a Restricted Subsidiary will be permitted to consummate an Asset Sale without complying with the foregoing provisions if:
(1) such entity receives consideration at the time of such Asset Sale at least equal to the fair market value of the assets or other property sold, issued or otherwise disposed of (as evidenced by a resolution of the Board of such entity), and
(2) the consideration for such Asset Sale constitutes (x) Productive Assets; provided that any non-cash consideration not constituting Productive Assets received by such entity in connection with such Asset Sale that is converted into or sold or otherwise disposed of for cash or Cash Equivalents at any time within 360 days after such Asset Sale shall constitute Net Cash Proceeds subject to the consideration provisions set forth above or (y) Designated Non-Cash Consideration received by the Company or such Restricted Subsidiary for such Asset Sale is not less than the fair market value of the assets sold evidenced by a resolution of the board of directors of such entity set forth in an Officers' Certificate delivered to the Holders and (y) the consideration received by the Company or the relevant Restricted Subsidiary in respect of such Asset Sale consists of at least 75% cash or Cash Equivalents (for purposes of this clause (y), cash and Cash Equivalents includes (A) any liabilities (as reflected in the Company's consolidated balance sheet) of the Company or any Restricted Subsidiary (other than contingent liabilities and liabilities that are by their terms subordinated to the Notes or any Guarantee) that are assumed by any transferee of any such assets or other property in such Asset Sale, and where the Company or the relevant Restricted Subsidiary is released from any further liability in connection therewith with respect to such liabilities, (B) any securities, notes or other similar obligations received by the Company or any such Restricted Subsidiary from such transferee that are converted within 180 days of the consummation of the related Asset Sale by the Company or such Restricted Subsidiary into cash and Cash Equivalents (to the extent of the net cash proceeds or the Cash Equivalents (net of related costs) received upon such conversion) and (C) any Designated Noncash Consideration received by the Company or any such Restricted Subsidiary in the Asset Sale having an aggregate fair market value, as determined by the Board of the Company, taken together with all other Designated Noncash Non-Cash Consideration received pursuant to this clause (y) that is at that the time outstanding, not to exceed the greater of:
(1) $10,000,000; and
(2) 15% of Consolidated Tangible Assets 75 million at the time of the receipt of such Designated Noncash Consideration (Non-Cash Consideration, with the fair market value of each item of such Designated Noncash Non-Cash Consideration being measured at the time received and without giving effect to subsequent changes in value. Upon the consummation of an Asset Sale, the Company or the affected Restricted Subsidiary will be required to apply an amount equal to all Net Cash Proceeds (excluding amounts received and considered as “cash” pursuant to clause (2)(A) of the first paragraph of this Section 4.10) that are received from such Asset Sale within 360 days of the receipt thereof either:
(1) to reinvest (or enter into a binding commitment to invest, if such investment is effected within 360 days after the date of such commitment) in Productive Assets or in Asset Acquisitions not otherwise prohibited by this Indenture,
(2) to repay Indebtedness under the Bank Credit Agreement (or other Indebtedness of the Company or such Restricted Subsidiary, as applicable, secured by a Lien)., and, in the case of any such repayment under any revolving credit or other facility that permits future borrowings, effect a permanent reduction in the availability or commitment under such facility,
(3) to (x) prepay, repay, redeem or purchase Notes including (i) as provided under Section 3.07 hereof, (ii) If making an offer (in accordance with the procedures set forth below for a Net Proceeds Offer) to all Holders to purchase their Notes at a purchase price of at least 100% of the principal amount thereof, plus the amount of accrued but unpaid interest, if any, thereon up to the principal amount of Notes to be repurchased or (iii) purchasing Notes at a purchase price of at least 100% of the principal amount thereof, plus the amount of accrued but unpaid interest, if any, thereon up to the principal amount of Notes to be repurchased, through privately negotiated transactions or open market purchases, in a manner that complies with this Indenture and applicable securities law or (y) prepay, repay, redeem or purchase any other pari passu Indebtedness of the Company or any Guarantor; provided that if the Company or any Restricted Subsidiary engages in an Asset Saleshall so repay or prepay any such other pari passu Indebtedness, the Company maywill reduce (or offer to reduce) Obligations under this Indenture, at its optionthe Notes and the Note Guarantees on a pro rata basis (based on the amount so applied to such repayments or prepayments) as provided in the immediately preceding clause (x), within 12 months after such Asset Sale, subject to the applicable procedures of DTC;
(14) apply all to improve real property or make a portion capital expenditure; or
(5) any combination of the Net Cash Proceeds to the permanent reduction of amounts outstanding under the Credit Agreement (and to correspondingly reduce the commitmentsforegoing. provided, however, that if any, with respect thereto) or to the permanent repayment of other Senior Indebtedness of the Company or a any Restricted Subsidiary, provided that the repayment of any Indebtedness incurred under the Credit Agreement in connection with the acquisition of any Facility with the proceeds of any subsequent Sale and Leaseback Transaction relating Subsidiary contractually commits within such 360-day period to such Facility shall not be required to result in the permanent reduction of the amounts outstanding under the Credit Agreement or correspondingly permanently reduce the commitments thereunder, or (2) invest (or enter into a legally binding agreement to invest) all or a portion of apply such Net Cash Proceeds within 180 days following such contractual commitment in properties accordance with the foregoing clauses (1), (2), (3), (4) or (5), and assets to replace the properties and assets that were the subject of the Asset Sale or in properties and assets that will be used in the businesses of the Company or its Restricted Subsidiaries, as the case may be, existing on the Closing Date or in businesses the same, similar or reasonably related thereto. If any such legally binding agreement to invest such Net Cash Proceeds is terminatedare subsequently applied as contemplated in such contractual commitment, then the Company may, within 90 days requirement for application of such termination or within 12 months of such Asset Sale, whichever is later, invest such Net Cash Proceeds as provided set forth in clause (1) or (2) (without regard to the parenthetical contained in such clause (2)) abovethis paragraph shall be considered satisfied. Pending the final application of any such Net Cash Proceeds, the Company or such Restricted Subsidiary may temporarily reduce revolving credit borrowings Indebtedness or otherwise invest such Net Cash Proceeds in a any manner that is not prohibited by this AgreementIndenture. The amount of such Any Net Cash Proceeds from an Asset Sale that are not so used as set forth above in this applied pursuant to the preceding paragraph shall constitute "“Excess Net Proceeds."
(c) When ” No later than 20 business days following the date on which the aggregate amount of Excess Net Proceeds exceeds $10,000,00050 million (the “Net Proceeds Trigger Date”), the Company will, within 30 days thereafter, shall make an offer to purchase (an "Excess the “Net Proceeds Offer"”), on a date (the “Net Proceeds Offer Payment Date”) from all Holders of Notes not less than 30 nor more than 60 days following the applicable Net Proceeds Offer Trigger Date, on a pro rata basis, in accordance with the procedures set forth in this Agreement, the maximum an aggregate principal amount (expressed as a multiple of $1,000) of Notes that may be purchased with equal to the Excess ProceedsNet Proceeds of (a) Notes, at a purchase price in cash equal to 100% of the aggregate principal amount thereofof Notes, in each case, plus accrued interestand unpaid interest thereon, if any, on the Net Proceeds Offer Payment Date, and (b) other pari passu Indebtedness of the Company or any Guarantor, in each case to the date extent required by the terms thereof. If at any time within 360 days after an Asset Sale any non-cash consideration received by the Company or the affected Restricted Subsidiary in connection with such offer Asset Sale (other than non-cash consideration deemed to purchase be cash as provided in clause (2)(B) of the first paragraph of this Section 4.10) is consummatedconverted into or sold or otherwise disposed of for cash, then such conversion or disposition will be deemed to constitute an Asset Sale hereunder and the Net Cash Proceeds thereof will be applied in accordance with this covenant. To the extent that the aggregate principal amount of Notes or other pari passu Indebtedness tendered pursuant to such offer to purchase the Net Proceeds Offer is less than the Excess Net Proceeds, the Company or such Restricted Subsidiary may use any remaining proceeds of such deficiency Asset Sales for general corporate purposes. If purposes (but subject to the aggregate principal amount other terms of Notes validly tendered and not withdrawn by holders thereof exceeds the Excess Proceeds, the Notes to be purchased will be selected on a pro rata basisthis Indenture). Upon completion of such offer to purchasea Net Proceeds Offer, the amount of Excess Net Proceeds relating to such Net Proceeds Offer will be reset deemed to zero.
be zero for purposes of any subsequent Asset Sale. In the event that a Restricted Subsidiary consummates an Asset Sale, only that portion of the Net Cash Proceeds therefrom (iiiincluding any Net Cash Proceeds received upon the sale or other disposition of any non-cash proceeds received in connection with an Asset Sale) that are distributed to or received by the Company or a Restricted Subsidiary will be required to be applied by the Company or the Restricted Subsidiary in accordance with the provisions of this covenant. The Company will comply with the requirements all applicable laws, including, without limitation, Section 14(e) of Rule 14e-1 under the Exchange Act and any other the rules thereunder and all applicable federal and state securities laws laws, and regulations thereunder will include all instructions and materials necessary to the extent such laws and regulations are applicable in connection with each repurchase of enable holders to tender their Notes pursuant and, to an Excess Proceeds Offer. To the extent that the provisions of any securities such laws or regulations rules conflict with the Asset Sales provisions of this Agreementcovenant, the Company will comply Company’s compliance with the applicable securities such laws and regulations rules shall not in and will not be deemed to have breached its of itself cause a breach of the Company’s obligations under Section 5(j) of 3.09 or this Agreement by virtue of such conflictSection 4.10.
Appears in 1 contract
Samples: Indenture (Red Rock Resorts, Inc.)
Asset Sales. (ia) The Company shall not, and shall not permit any of its Restricted Subsidiary Subsidiaries to, engage whether in a single transaction or a series of related transactions occurring within any Asset twelve-month period, sell, lease, convey, dispose or otherwise transfer any assets including by way of a Sale unless and Leaseback Transaction other than sales, leases, conveyances, dispositions or other transfers (xA) the consideration received by the Company at a price equal to or such Restricted Subsidiary for such Asset Sale is not less greater than the fair market value thereof, (B) of inventory, including close-out sales, in the assets sold evidenced by a resolution ordinary course of the board of directors of such entity set forth in an Officers' Certificate delivered business, (C) to the Holders and (y) the consideration received Company by the Company or the relevant any Restricted Subsidiary in respect of such Asset Sale consists of at least 75% cash or Cash Equivalents (for purposes of this clause (y), cash and Cash Equivalents includes (A) any liabilities (as reflected in the Company's consolidated balance sheet) of the Company or from the Company to any Restricted Subsidiary (other than contingent liabilities and liabilities that are by their terms subordinated to the Notes or any Guarantee) that are assumed by any transferee of any such assets or other property in such Asset Sale, and where the Company or the relevant Restricted Subsidiary is released from any further liability in connection therewith with respect to such liabilities, (B) any securities, notes or other similar obligations received by the Company or any such Restricted Subsidiary from such transferee that are converted within 180 days of the consummation of the related Asset Sale by the Company or such Restricted Subsidiary into cash and Cash Equivalents (to the extent of the net cash proceeds or the Cash Equivalents (net of related costs) received upon such conversion) and (C) any Designated Noncash Consideration received by the Company or any such Restricted Subsidiary in the Asset Sale having an aggregate fair market value, as determined by the Board of the Company, taken together with (D) that constitute a Restricted Payment or dividend or distribution permitted under Section 4.07 hereof or (E) that constitute the disposition of all other Designated Noncash Consideration received or substantially all of the assets of the Company pursuant to this clause that is at that time outstanding, not to exceed the greater of:
Section 5.01 hereof (1) $10,000,000; and
(2) 15% of Consolidated Tangible Assets at the time each of the receipt of such Designated Noncash Consideration foregoing other than those categories described in clauses (with the fair market value of each item of such Designated Noncash Consideration being measured at the time received B), (C), (D) and without giving effect to subsequent changes in value(E), an "Asset Sale").
(iib) If Within 365 days after the Company or receipt of net proceeds of any Restricted Subsidiary engages in an Asset Sale, the Company may, at its option, within 12 months after (or such Asset Sale, (1) apply all or a portion of the Net Cash Proceeds to the permanent reduction of amounts outstanding under the Credit Agreement (and to correspondingly reduce the commitments, if any, with respect thereto) or to the permanent repayment of other Senior Indebtedness of the Company or a Restricted Subsidiary, provided that the repayment of any Indebtedness incurred under the Credit Agreement in connection with the acquisition of any Facility with the proceeds of any subsequent Sale and Leaseback Transaction relating to such Facility shall not be required to result in the permanent reduction of the amounts outstanding under the Credit Agreement or correspondingly permanently reduce the commitments thereunder, or (2) invest (or enter into a legally binding agreement to invest) all or a portion of such Net Cash Proceeds in properties and assets to replace the properties and assets that were the subject of the Asset Sale or in properties and assets that will be used in the businesses of the Company or its Restricted Subsidiaries, as the case may be, existing on ) may apply the Closing Date or in businesses Net Proceeds from such Asset Sale to (i) permanently reduce the same, similar or reasonably related thereto. If any such legally binding agreement amounts permitted to invest such Net Cash Proceeds is terminated, be borrowed by the Company may, within 90 days under the terms of such termination any of its Senior Indebtedness or within 12 months (ii) the direct or indirect acquisition of such assets (tangible or intangible) to be used in any Permitted Business. Any Net Proceeds from any Asset Sale, whichever is later, invest such Net Cash Proceeds Sales that are not so applied or invested as provided in clause (1) or (2) (without regard to the parenthetical contained in such clause (2)) above. Pending the final application of any such Net Cash Proceedspreceding sentence, the Company may temporarily reduce revolving credit borrowings or otherwise invest such Net Cash Proceeds in a manner that is not prohibited by this Agreement. The amount of such Net Cash Proceeds not so used as set forth above in this paragraph shall constitute "Excess Proceeds."
(c) " When the aggregate amount of Excess Proceeds exceeds $10,000,0002.0 million, the Company will, within 30 days thereafter, shall be required to make an offer to purchase (an "Excess Proceeds Offer") from all Holders of Notes on a pro rata basis, Offer in accordance with the procedures set forth in this Agreement, the maximum principal amount (expressed as a multiple terms of $1,000) of Notes that may be purchased with the Excess Proceeds, at a purchase price in cash equal to 100% of the principal amount thereof, plus accrued interest, if any, to the date such offer to purchase is consummated. To the extent that the aggregate principal amount of Notes tendered pursuant to such offer to purchase is less than the Excess Proceeds, the Company may use such deficiency for general corporate purposes. If the aggregate principal amount of Notes validly tendered and not withdrawn by holders thereof exceeds the Excess Proceeds, the Notes to be purchased will be selected on a pro rata basis. Upon completion of such offer to purchase, the amount of Excess Proceeds will be reset to zeroSection 3.09 hereof.
(iii) 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 Excess Proceeds Offer. To the extent that the provisions of any securities laws or regulations conflict with the Asset Sales provisions of this Agreement, the Company will comply with the applicable securities laws and regulations and will not be deemed to have breached its obligations under Section 5(j) of this Agreement by virtue of such conflict.
Appears in 1 contract
Samples: Indenture (Concord Camera Corp)
Asset Sales. (i) The Company Partnership shall not, and shall not permit any of its Restricted Subsidiary Subsidiaries to, engage (i) sell, lease, convey or otherwise dispose of any assets (including by way of a Sale and Leaseback Transaction) other than sales of inventory in the ordinary course of business and consistent with past practice (provided, that the sale, lease, conveyance or other disposition of all or substantially all of the assets of the Partnership shall be governed by the provisions of this Indenture set forth under Section 10.17 hereof or Article III hereof and not by the provisions of this Section 10.16) or (ii) issue or sell Capital Stock of any of its Restricted Subsidiaries, in the case of either clause (i) or (ii) above, whether in a single transaction or a series of related transactions (each of the foregoing, an “Asset Sale Sale”), unless (x) the Partnership (or the Restricted Subsidiary, as the case may be) receives consideration at the time of such Asset Sale at least equal to the fair market value (as determined in good faith by the General Partner) of the assets sold or otherwise disposed of and (y) at least 80% of the consideration therefor received by the Company Partnership or such Restricted Subsidiary for such Asset Sale is not less than in the fair market value form of cash; provided, however, that the assets sold evidenced by a resolution amount of the board of directors of such entity set forth in an Officers' Certificate delivered to the Holders and (y) the consideration received by the Company or the relevant Restricted Subsidiary in respect of such Asset Sale consists of at least 75% cash or Cash Equivalents (for purposes of this clause (y), cash and Cash Equivalents includes (A) any liabilities (as reflected shown on the Partnership’s or such Restricted Subsidiary’s most recent balance sheet or in the Company's consolidated balance sheetnotes thereto) of the Company Partnership or any Restricted Subsidiary (other than contingent liabilities and liabilities that are by their terms subordinated to the Notes or any Guarantee) that are assumed by any the transferee of any such assets or other property in such Asset Sale, and where the Company or the relevant Restricted Subsidiary is released from any further liability in connection therewith with respect to such liabilities, (B) any securities, notes or other similar obligations received by the Company Partnership or any such Restricted Subsidiary from such transferee that are immediately converted within 180 days of the consummation of the related Asset Sale by the Company Partnership or such Restricted Subsidiary into cash and Cash Equivalents (to the extent of the net cash received), shall be deemed to be cash for purposes of this provision; and provided, further, that the 80% limitation referred to in this clause (y) shall not apply to any Asset Sale in which the cash portion of the consideration received therefrom, determined in accordance with the foregoing proviso, is equal to or greater than what the after-tax proceeds would have been had such Asset Sale complied with the aforementioned 80% limitation. Notwithstanding the foregoing, Asset Sales shall not be deemed to include (1) any transfer of assets or Capital Stock by the Cash Equivalents Partnership or any of its Restricted Subsidiaries to a Wholly-Owned Restricted Subsidiary of the Partnership, (net 2) any transfer of related costsassets or Capital Stock by the Partnership or any of its Restricted Subsidiaries to any Person in exchange for other assets used in a line of business permitted under Section 10.15 hereof and having a fair market value (as determined in good faith by the General Partner) received upon such conversion) not less than that of the assets so transferred and (C3) any Designated Noncash Consideration transfer of assets pursuant to a Permitted Investment. In the event that the aggregate Net Proceeds received by the Company Partnership or any such of its Restricted Subsidiary Subsidiaries from one or more Assets Sales in the Asset Sale having an aggregate fair market value, as determined by the Board any fiscal year of the CompanyPartnership exceed $10 million, taken together within 270 days after the date such aggregate Net Proceeds exceed such amount (or such longer period as may be required to comply with all other Designated Noncash Consideration received pursuant to this clause that is at that time outstandingany agreement in effect on April 19, not to exceed the greater of:
(1) $10,000,000; and
(2) 15% of Consolidated Tangible Assets at the time of the receipt of such Designated Noncash Consideration (with the fair market value of each item of such Designated Noncash Consideration being measured at the time received and without giving effect to subsequent changes in value1995).
(ii) If the Company or any Restricted Subsidiary engages in an Asset Sale, the Company mayPartnership, at its option, within 12 months after shall apply the amount of such Asset Sale, aggregate Net Proceeds in excess of $10 million (1less the amount of any such Net Proceeds previously applied during such fiscal year for the purposes set forth in clauses (a) apply all or (b) below) to (a) reduce Indebtedness of a portion of the Net Cash Proceeds to the Restricted Subsidiary (with a permanent reduction of amounts outstanding under the Credit Agreement (and to correspondingly reduce the commitments, if any, with respect thereto) or to the permanent repayment of other Senior Indebtedness of the Company or a Restricted Subsidiary, provided that the repayment of any Indebtedness incurred under the Credit Agreement in connection with the acquisition of any Facility with the proceeds of any subsequent Sale and Leaseback Transaction relating to such Facility shall not be required to result availability in the permanent reduction case of the amounts outstanding under the Credit Agreement or correspondingly permanently reduce the commitments thereunder, or (2) invest (or enter into a legally binding agreement to invest) all or a portion of such Net Cash Proceeds in properties and assets to replace the properties and assets that were the subject of the Asset Sale or in properties and assets that will be used in the businesses of the Company or its Restricted Subsidiaries, as the case may be, existing on the Closing Date or in businesses the same, similar or reasonably related thereto. If any such legally binding agreement to invest such Net Cash Proceeds is terminated, the Company may, within 90 days of such termination or within 12 months of such Asset Sale, whichever is later, invest such Net Cash Proceeds as provided in clause (1revolving Indebtedness) or (2b) (without regard to make an investment in assets in the parenthetical contained same line of business the Partnership was engaged in such clause (2)) aboveon April 19, 1995. Pending the final application of any such Net Cash Proceeds, the Company Partnership or any Restricted Subsidiary may temporarily reduce revolving credit borrowings under the Bank Credit Facilities or otherwise invest such Net Cash Proceeds in a any manner that is not prohibited by this AgreementIndenture. The amount of Any such Net Cash Proceeds that are not so used applied or invested as set forth above provided in the first sentence of this paragraph shall will be deemed to constitute "“Excess Proceeds."
(c) ” When the aggregate amount of Excess Proceeds exceeds $10,000,0005 million, the Company will, within 30 days thereafter, Issuers shall make an offer to purchase (an "Excess Proceeds Offer") from all Holders of Notes on a pro rata basis(an “Asset Sale Offer”) to purchase the maximum principal amount of Notes that may be purchased out of the Excess Proceeds, at an offer price in cash in an amount equal to 100% of the principal amount thereof plus accrued and unpaid interest, if any, to the date of purchase, in accordance with the procedures set forth in this Agreement, the maximum principal amount (expressed as a multiple of $1,000) of Notes that may be purchased with the Excess Proceeds, at a purchase price in cash equal to 100% of the principal amount thereof, plus accrued interest, if any, to the date such offer to purchase is consummatedIndenture. To the extent that the aggregate principal amount of Notes Securities tendered pursuant to such offer to purchase an Asset Sale Offer is less than the Excess Proceeds, the Company Partnership or any Restricted Subsidiary may use such deficiency for general corporate business purposes. If the aggregate principal amount of Notes validly tendered and not withdrawn Securities surrendered by holders Holders thereof exceeds the amount of Excess Proceeds, the Notes Trustee shall select the Securities to be purchased will be selected on a pro rata basis. Notwithstanding the foregoing, if the Issuers are required to commence an Asset Sale Offer at any time when the Issuers have securities outstanding ranking pari passu in right of payment with the Notes and the terms of those securities provide that a similar offer must be made with respect to those other securities, then the Asset Sale Offer for the Securities will be made concurrently with the other offers and securities of each issue will be accepted on a pro rata basis in proportion to the aggregate principal amount of securities of each issue which their holders elect to have purchased. Upon completion of such offer to purchasethe Asset Sale Offer, the amount of Excess Proceeds will be reset to at zero.
(iii) 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 Excess Proceeds Offer. To the extent that the provisions of any securities laws or regulations conflict with the Asset Sales provisions of this Agreement, the Company will comply with the applicable securities laws and regulations and will not be deemed to have breached its obligations under Section 5(j) of this Agreement by virtue of such conflict.
Appears in 1 contract
Samples: Indenture (Amerigas Finance Corp)
Asset Sales. (ia) The Company Parent and the Issuers shall not, and shall not permit any of the other Restricted Subsidiary Subsidiaries to, engage in any cause or make an Asset Sale Sale, unless (x) the Parent or any Restricted Subsidiary, as the case may be, receives consideration received by at the Company or such Restricted Subsidiary for time of such Asset Sale is not less than at least equal to the fair market value Fair Market Value (as determined in good faith by the Issuer) of the assets sold evidenced by a resolution of the board of directors of such entity set forth in an Officers' Certificate delivered to the Holders or otherwise disposed of, and (y) the consideration received by the Company or the relevant Restricted Subsidiary in respect of such Asset Sale consists of at least 75% cash of the consideration therefor received by the Parent or such Restricted Subsidiary, as the case may be, is in the form of Cash Equivalents; provided that the amount of each of the following shall be deemed to be Cash Equivalents (for purposes of this clause provision:
(y), cash and Cash Equivalents includes (Ai) any liabilities (as reflected shown on the Parent or a Restricted Subsidiary’s most recent balance sheet or in the Company's consolidated balance sheetnotes thereto) of the Company Parent or any a Restricted Subsidiary (other than contingent liabilities and liabilities that are by their terms subordinated to the Notes or any Guarantee) that are assumed by any the transferee of any such assets or other property in such Asset Sale, and where the Company that are otherwise canceled or the relevant Restricted Subsidiary is released from any further liability terminated in connection therewith with respect to the transaction with such liabilitiestransferee, excluding any other Indebtedness included in the calculation of Consolidated Total Indebtedness that is both (B1) unsecured or Junior Priority Indebtedness and (2) a direct obligation of, or guaranteed by, all or substantially all of the Issuers and the Guarantors;
(ii) any securities, notes or other similar obligations or other securities or assets received by the Company Parent or any such Restricted Subsidiary from such transferee that are converted within 180 days of the consummation of the related Asset Sale by the Company Parent or such Restricted Subsidiary into cash and or Cash Equivalents within 180 days of the receipt thereof (to the extent of the net cash proceeds or received);
(iii) Indebtedness of any Restricted Subsidiary that is no longer a Restricted Subsidiary as a result of such Asset Sale, to the extent that the Parent and each Restricted Subsidiary are released from any guarantee of payment of such Indebtedness in connection with the Asset Sale and the assumption of such guarantee, if any, would be deemed to be Cash Equivalents under clause (net i) above;
(iv) consideration consisting of related costsIndebtedness of the Parent or any Restricted Subsidiary (other than Subordinated Indebtedness) received upon such conversion) and after the Issue Date from Persons who are not the Parent or any Restricted Subsidiary; and
(Cv) any Designated Noncash Non-cash Consideration received by the Company Parent or any such Restricted Subsidiary in the such Asset Sale having an aggregate fair market value, Fair Market Value (as determined in good faith by the Board of the CompanyIssuer), taken together with all other Designated Noncash Non-cash Consideration received pursuant to this clause Section 4.06(a)(v) that is at that time outstanding, not to exceed the greater of:
(1) of $10,000,000; and
(2) 15% 600.0 million and a percentage of Consolidated Tangible Total Assets equal to the Applicable TA Percentage at the time of the receipt of such Designated Noncash Non-cash Consideration (with the fair market value Fair Market Value of each item of such Designated Noncash Non-cash Consideration being measured at the time received and without giving effect to subsequent changes in value).
(iib) If Within 365 days after the Company Parent’s or any Restricted Subsidiary engages in an Subsidiary’s receipt of the Net Proceeds of any Asset Sale, the Company mayParent or such Restricted Subsidiary may apply the Net Proceeds from such Asset Sale, at its option:
(i) to repay (A) Indebtedness constituting Bank Indebtedness and other Pari Passu Indebtedness, within 12 months after such Asset Salein each case that is secured by a Lien permitted under this Indenture, including First Priority Obligations and Second Priority Obligations (1) apply all or a portion of and, if the Net Cash Proceeds to the permanent reduction of amounts outstanding under the Credit Agreement (and Indebtedness repaid is revolving credit Indebtedness, to correspondingly reduce the commitments, if any, commitments with respect thereto), (B) Indebtedness of a Restricted Subsidiary that is not a Guarantor, (C) Second Priority Notes Obligations or (D) other Pari Passu Indebtedness (provided that if the Parent, an Issuer or any Guarantor shall so reduce Obligations under such Pari Passu Indebtedness under this clause (D), the Issuer will equally and ratably reduce Second Priority Notes Obligations in accordance with Article III of this Indenture, 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, the pro rata principal amount of Notes), in each case other than Indebtedness owed to the permanent repayment of other Senior Indebtedness Parent or an Affiliate of the Company or a Restricted Subsidiary, Parent; provided that the repayment Net Proceeds from an Asset Sale of Second Lien Collateral may not be applied to repay any Indebtedness incurred other than the Notes or other Pari Passu Indebtedness secured by a Lien (other than a Lien that is junior in priority to the Liens securing the Notes or any Guarantee) on such Second Lien Collateral, except as otherwise permitted under this covenant (provided that if the Parent, an Issuer or any Guarantor shall so repay Obligations under such Pari Passu Indebtedness (other than Pari Passu Indebtedness secured by a Lien that is senior in priority to the Liens securing the Notes or any Guarantee), the Issuer will, to the extent permitted under the Credit Agreement New Second Lien Notes and other Pari Passu Indebtedness as in connection effect on the Issue Date, equally and ratably reduce Second Priority Notes Obligations in accordance with Article III of this Indenture, 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 acquisition procedures set forth below for an Asset Sale Offer) to all holders to purchase at a purchase price equal to 100% of any Facility with the proceeds of any subsequent Sale and Leaseback Transaction relating to such Facility shall not be required to result principal amount thereof (or, in the permanent reduction event that the Notes were issued with significant original issue discount, 100% of the amounts outstanding under accreted value thereof), plus accrued and unpaid interest (it being understood, for the Credit Agreement or correspondingly permanently reduce the commitments thereunderavoidance of doubt, or (2) invest (or enter into a legally binding agreement to invest) all or a that any portion of such Net Cash Proceeds used to make an offer to purchase Notes in properties accordance with the procedures set forth below for an Asset Sale Offer shall be deemed to have been so applied to reduce Second Priority Notes Obligations whether or not such offer is accepted)); provided, further, that if such Asset Sale involves the disposition of Second Lien Collateral, the Parent or such Restricted Subsidiary has complied with the provisions of this Indenture and assets the Second Lien Collateral Documents;
(ii) to make an investment in any one or more businesses (provided that if such investment is in the form of the acquisition of Capital Stock of a Person, such acquisition results in such Person becoming a Restricted Subsidiary of the Parent), 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 were 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 or in properties and assets giving rise to such Net Proceeds was contractually committed; or
(iii) to make Permitted Opioid Settlement Prepayments. In the case of Section 4.06(b)(ii), a binding commitment shall be treated as a permitted application of the Net Proceeds from the date of such commitment until the 12-month anniversary of the date of the receipt of such Net Proceeds; provided that will be used in the businesses event such binding commitment is later canceled or terminated for any reason before such Net Proceeds are so applied, then such Net Proceeds shall constitute Excess Proceeds unless the Parent or such Restricted Subsidiary enters into another binding commitment (a “Second Commitment”) within six months of such cancellation or termination of the Company prior binding commitment; provided, further, that the Parent or its such Restricted Subsidiaries, as Subsidiary may only enter into a Second Commitment under the case may be, existing on foregoing provision one time with respect to each Asset Sale and to the Closing Date extent such Second Commitment is later canceled or in businesses the same, similar or reasonably related thereto. If terminated for any such legally binding agreement to invest reason before such Net Cash Proceeds is terminated, the Company may, are applied or are not applied within 90 180 days of such termination or within 12 months of such Asset SaleSecond Commitment, whichever is later, invest then such Net Cash Proceeds as provided in clause (1) or (2) (without regard to the parenthetical contained in such clause (2)) aboveshall constitute Excess Proceeds. Pending the final application of any such Net Cash Proceeds, the Company Parent or such Restricted Subsidiary may temporarily reduce Indebtedness under a revolving credit borrowings facility, if any, or otherwise invest such Net Cash Proceeds in a any manner that is not prohibited by this AgreementIndenture. The amount Any Net Proceeds from any Asset Sale that are not applied as provided and within the time period set forth in the first paragraph of this Section 4.06(b) (it being understood that any portion of such Net Cash 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 so applied whether or not so used as set forth above in this paragraph shall such offer is accepted) will be deemed to constitute "“Excess Proceeds."
(c) ” When the aggregate amount of Excess Proceeds exceeds $10,000,000125.0 million, the Company will, within 30 days thereafter, Issuer shall make an offer to purchase all holders of Notes (and, at the option of the Issuer, to holders of any other Pari Passu Indebtedness secured by a Lien (other than a Lien that is junior in priority to the Liens securing the Notes or a Guarantee) on the Second Lien Collateral (the “Eligible Pari Passu Indebtedness”)) (an "“Asset Sale Offer”) to purchase the maximum principal amount of Notes (and any such Eligible Pari Passu Indebtedness), that is at least $1 and an integral multiple of $1 in excess thereof that may be purchased out of the Excess Proceeds Offer") from all Holders at an offer price in cash in an amount equal to 100% of the principal amount thereof (or, in the event the Notes on a pro rata basisor any such Eligible Pari Passu Indebtedness were issued with significant original issue discount, 100% of the accreted value thereof), plus accrued and unpaid interest (or, in respect of such Eligible Pari Passu Indebtedness, such lesser price, if any, as may be provided for by the terms of such Eligible Pari Passu Indebtedness), to, but excluding, the date fixed for the closing of such offer, in accordance with the procedures set forth in this AgreementIndenture. 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 $125.0 million by mailing, or delivering electronically if the Notes are held by the Depository, the maximum principal amount (expressed as a multiple of $1,000) of Notes that may be purchased with the Excess Proceeds, at a purchase price in cash equal to 100% of the principal amount thereof, plus accrued interest, if any, notice required pursuant to the date such offer terms of this Indenture, with a copy to purchase is consummatedthe Second Lien Trustee. To the extent that the aggregate principal amount of Notes (and such Eligible Pari Passu Indebtedness) tendered pursuant to such offer to purchase an Asset Sale Offer is less than the Excess Proceeds, the Company Issuer may use such deficiency any remaining Excess Proceeds for general corporate purposesany purpose that is not prohibited by this Indenture. If the aggregate principal amount of Notes validly tendered and not withdrawn such Eligible Pari Passu Indebtedness surrendered by holders thereof exceeds the amount of Excess Proceeds, the Second Lien Trustee, upon receipt of written notice from the Issuer of the aggregate principal amount to be selected, shall select the Notes (but not such Eligible Pari Passu Indebtedness) to be purchased will be selected on a pro rata basisin the manner described in Section 4.06(e). Upon completion of any such offer to purchaseAsset Sale Offer, the amount of Excess Proceeds will shall be reset to at zero.
(iiic) The Company 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 and or regulations are applicable in connection with each the repurchase of the Notes pursuant to an Excess Proceeds Asset Sale Offer. To the extent that the provisions of any securities laws or regulations conflict with the Asset Sales provisions of this AgreementIndenture, the Company Issuer will comply with the applicable securities laws and regulations and will shall not be deemed to have breached its obligations under Section 5(j) of described in this Agreement Indenture by virtue thereof.
(d) [reserved].
(e) If more Notes (and such Eligible Pari Passu Indebtedness) are tendered pursuant to an Asset Sale Offer than the Issuers are required to purchase, selection of such conflictNotes (but not such Eligible Pari Passu Indebtedness) for purchase shall be made by the Second Lien Trustee on a pro rata basis to the extent practicable, by lot or by such other method as the Second Lien Trustee shall deem fair and appropriate (and in such manner as complies with the requirements of the Depository, if applicable); provided that no Notes of $1 or less shall be purchased in part. Selection of such Eligible Pari Passu Indebtedness shall be made pursuant to the terms of such Eligible 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 the Notes are held by the Depository, at least 10 days but not more than 60 days before the purchase date to each holder of Notes at such holder’s registered address. If any Note is to be purchased in part only, any notice of purchase that relates to such Note shall state the portion of the principal amount thereof that has been or is to be purchased.
Appears in 1 contract
Samples: Indenture (Mallinckrodt PLC)
Asset Sales. (i) The Company shall not, and shall not permit any of its Restricted Subsidiary Subsidiaries to: (i) sell, engage lease, convey or otherwise dispose of any assets or rights (including by way of a sale-and-leaseback) other than sales of inventory in the ordinary course of business (provided that the sale, lease, conveyance or other distribution of all or substantially all of the assets of the Company and its Restricted Subsidiaries, taken as a whole, shall be governed by the provisions of Sections 4.14 and 5.01 hereof and not by the last paragraph of this section), or (ii) with respect to the Company, sell Equity Interests in any of its Subsidiaries, or (iii) with respect to the Company's Restricted Subsidiaries, issue Equity Interests (each of the foregoing, an "Asset Sale Sale"), unless (x) the Company (or the Restricted Subsidiary, as the case may be) receives consideration received by at the Company or such Restricted Subsidiary for time of such Asset Sale is not less than at least equal to the fair market value of the assets sold (evidenced by a resolution of the board Board of directors of such entity Directors set forth in an Officers' Certificate delivered to the Holders Trustee) of the assets sold or otherwise disposed of and (y) the consideration received by the Company or the relevant Restricted Subsidiary in respect of such Asset Sale consists of at least 75% cash or Cash Equivalents (for purposes of this clause (y), cash and Cash Equivalents includes (A) any liabilities (as reflected in the Company's consolidated balance sheet) of the Company or any Restricted Subsidiary (other than contingent liabilities and liabilities that are by their terms subordinated to the Notes or any Guarantee) that are assumed by any transferee of any such assets or other property in such Asset Sale, and where the Company or the relevant Restricted Subsidiary is released from any further liability in connection therewith with respect to such liabilities, (B) any securities, notes or other similar obligations consideration received by the Company or any such Restricted Subsidiary from such transferee that are converted within 180 days of the consummation of the related Asset Sale therefor by the Company or such Restricted Subsidiary into is in the form of cash and Cash Equivalents or other Qualified Proceeds. Notwithstanding the foregoing, the following shall not be deemed to be Asset Sales: (to the extent of the net cash proceeds i) any single transaction or the Cash Equivalents (net series of related coststransactions that (a) received upon such conversion) and (C) any Designated Noncash Consideration received by the Company or any such Restricted Subsidiary in the Asset Sale involves assets having an aggregate fair market value, as determined by the Board of the Company, taken together with all other Designated Noncash Consideration received pursuant to this clause that is at that time outstanding, not to exceed the greater of:
(1) $10,000,000; and
(2) 15% of Consolidated Tangible Assets at the time of the receipt of such Designated Noncash Consideration (with the a fair market value of each item less than $2.0 million or (b) results in net proceeds to the Company and its Restricted Subsidiaries of such Designated Noncash Consideration being measured at the time received and without giving effect to subsequent changes in value).
less than $2.0 million, (ii) If a transfer of assets between or among the Company and any Restricted Subsidiary, (iii) an issuance of Equity Interests by a Restricted Subsidiary to the Company or to another Wholly Owned Restricted Subsidiary, (iv) the sale, lease, conveyance or other disposition of any Receivable Program Assets by the Company or any Restricted Subsidiary engages in an connection with a Receivables Program, (v) the sale, lease, conveyance or other disposition of any inventory, receivables or other current assets by the Company or any of its Restricted Subsidiaries in the ordinary course of business, (vi) the granting of a Permitted Lien, (vi) the licensing by the Company or any Restricted Subsidiary of intellectual property in the ordinary course of business or on commercially reasonable terms, (vii) the sale, lease, conveyance or other disposition of obsolete or worn out equipment or equipment no longer useful in the Company's business, and (viii) the making or liquidating of any Restricted Payment or Permitted Investment that is permitted by Section 4.07 hereof. Within 365 days after the receipt of any Net Proceeds from any Asset Sale, the Company may(or such Restricted Subsidiary) may apply such Net Proceeds from such Asset Sale, at its option, within 12 months after either (a) to repay Permitted Bank Debt, and if such Asset SalePermitted Bank Debt is revolving debt, to effect a corresponding commitment reduction thereunder, (1b) apply to acquire all or a portion substantially all of the Net Cash Proceeds to the permanent reduction of amounts outstanding under the Credit Agreement (and to correspondingly reduce the commitmentsassets of, if any, with respect thereto) or to the permanent repayment of other Senior Indebtedness a majority of the Company or a Restricted SubsidiaryVoting Stock of, provided that the repayment of any Indebtedness incurred under the Credit Agreement in connection with the acquisition of any Facility with the proceeds of any subsequent Sale and Leaseback Transaction relating to such Facility shall not be required to result in the permanent reduction of the amounts outstanding under the Credit Agreement or correspondingly permanently reduce the commitments thereunderanother Permitted Business, or (2) invest (or enter into a legally binding agreement to invest) all or a portion of such Net Cash Proceeds in properties and assets to replace the properties and assets that were the subject of the Asset Sale or in properties and assets that will be used in the businesses of the Company or its Restricted Subsidiaries, as the case may be, existing on the Closing Date or in businesses the same, similar or reasonably related thereto. If any such legally binding agreement to invest such Net Cash Proceeds is terminated, the Company may, within 90 days of such termination or within 12 months of such Asset Sale, whichever is later, invest such Net Cash Proceeds as provided in clause (1) or (2) (without regard to the parenthetical contained in such clause (2)) above. Pending the final application of any such Net Cash Proceeds, the Company may temporarily reduce revolving credit borrowings or otherwise invest such Net Cash Proceeds in a manner that is not prohibited by this Agreement. The amount of such Net Cash Proceeds not so used as set forth above in this paragraph shall constitute "Excess Proceeds."
(c) When the aggregate amount of Excess Proceeds exceeds $10,000,000to make a capital expenditure, the Company will, within 30 days thereafter, make an offer to purchase (an "Excess Proceeds Offer") from all Holders of Notes on a pro rata basis, in accordance with the procedures set forth in this Agreement, the maximum principal amount (expressed as a multiple of $1,000) of Notes that may be purchased with the Excess Proceeds, at a purchase price in cash equal to 100% of the principal amount thereof, plus accrued interest, if any, to the date such offer to purchase is consummated. To the extent that the aggregate principal amount of Notes tendered pursuant to such offer to purchase is less than the Excess Proceeds, the Company may use such deficiency for general corporate purposes. If the aggregate principal amount of Notes validly tendered and not withdrawn by holders thereof exceeds the Excess Proceeds, the Notes to be purchased will be selected on a pro rata basis. Upon completion of such offer to purchase, the amount of Excess Proceeds will be reset to zero.
(iii) 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 Excess Proceeds Offer. To the extent that the provisions of any securities laws or regulations conflict with the Asset Sales provisions of this Agreement, the Company will comply with the applicable securities laws and regulations and will not be deemed to have breached its obligations under Section 5(j) of this Agreement by virtue of such conflict.or
Appears in 1 contract
Samples: Indenture (Amkor Technology Inc)
Asset Sales. (a) The Issuer will not, and will not cause or permit any of its Restricted Subsidiaries to, directly or indirectly, consummate an Asset Sale unless:
(i) The Company shall notthe Issuer (or the Restricted Subsidiary, and shall not permit any Restricted Subsidiary to, engage in any as the case may be) receives consideration at the time of the Asset Sale unless at least equal to the fair market value (xdetermined at the time of contracting such Asset Sale) of the assets or Equity Interests issued or sold or otherwise disposed of; and
(ii) at least 75% of the consideration received in the Asset Sale by the Company Issuer or such Restricted Subsidiary for such Asset Sale is not less than in the fair market value form of the assets sold evidenced by a resolution of the board of directors of such entity set forth in an Officers' Certificate delivered to the Holders and (y) the consideration received by the Company or the relevant Restricted Subsidiary in respect of such Asset Sale consists of at least 75% cash or Cash Equivalents (for Equivalents. For purposes of this clause (y)provision, cash and Cash Equivalents includes each of the following will be deemed to be cash:
(A) any liabilities (liabilities, as reflected in recorded on the Company's consolidated balance sheet) sheet of the Company Issuer or any Restricted Subsidiary (other than contingent liabilities and liabilities that are by their terms subordinated to the Notes or any Guarantee) liabilities), that are assumed by any the transferee of any such assets or other property in such Asset Sale, and where as a result of which the Company or the relevant Issuer and its Restricted Subsidiary is released from any further liability in connection therewith Subsidiaries are no longer obligated with respect to such liabilities or are indemnified against further liabilities, ;
(B) any securities, notes or other similar obligations received by the Company Issuer or any such Restricted Subsidiary from such transferee that are converted within 180 days of the consummation of the related Asset Sale by the Company Issuer or such Restricted Subsidiary into cash and or Cash Equivalents (within 180 days following the closing of the Asset Sale, to the extent of the net cash proceeds or the Cash Equivalents (net of related costs) received upon such in that conversion) and ;
(C) any Capital Stock or assets of the kind referred to in Sections 4.10(b)(iii), 4.10(b)(v) or 4.10(b)(vi) hereof;
(D) Indebtedness of any Restricted Subsidiary that is no longer a Restricted Subsidiary as a result of such Asset Sale, to the extent that the Issuer and each Restricted Subsidiary are released from any guarantee of such Indebtedness in connection with such Asset Sale;
(E) consideration consisting of Indebtedness of the Issuer or any Guarantor received from Persons who are not the Issuer or any Restricted Subsidiary that is cancelled;
(F) accounts receivable of a business retained by the Issuer or any Restricted Subsidiary, as the case may be, following the sale of such business; and
(G) any Designated Noncash Non-Cash Consideration received by the Company Issuer or any of its Restricted Subsidiaries in such Restricted Subsidiary in the Asset Sale Sales having an aggregate fair market value, as determined by the Board of the Company, when taken together with all other Designated Noncash Non-Cash Consideration received pursuant to this clause Section 4.10(a)(ii)(G) that is at that time outstanding, not to exceed the greater of:
(1) of $10,000,000; and
(2) 1550.0 million and 2.0% of Consolidated Tangible the Total Assets of the Issuer, measured at the time of the receipt of such Designated Noncash Non-Cash Consideration (with the fair market value of each item of such Designated Noncash Non-Cash Consideration being measured at the time received and without giving effect to subsequent changes in value).
(iib) If Within 365 days after the Company or receipt of any Restricted Subsidiary engages in Net Proceeds from an Asset Sale, the Company may, at its option, within 12 months after such Asset Sale, Issuer (1) apply all or a portion of the Net Cash Proceeds to the permanent reduction of amounts outstanding under the Credit Agreement (and to correspondingly reduce the commitments, if any, with respect thereto) or to the permanent repayment of other Senior Indebtedness of the Company or a applicable Restricted Subsidiary, provided that the repayment of any Indebtedness incurred under the Credit Agreement in connection with the acquisition of any Facility with the proceeds of any subsequent Sale and Leaseback Transaction relating to such Facility shall not be required to result in the permanent reduction of the amounts outstanding under the Credit Agreement or correspondingly permanently reduce the commitments thereunder, or (2) invest (or enter into a legally binding agreement to invest) all or a portion of such Net Cash Proceeds in properties and assets to replace the properties and assets that were the subject of the Asset Sale or in properties and assets that will be used in the businesses of the Company or its Restricted Subsidiaries, as the case may be, existing on the Closing Date or in businesses the same, similar or reasonably related thereto. If any such legally binding agreement to invest ) may apply such Net Cash Proceeds is terminated, (at the Company may, within 90 days option of the Issuer or such termination or within 12 months of such Asset Sale, whichever is later, invest such Net Cash Proceeds as provided in clause Restricted Subsidiary) to:
(1) or (2i) (without regard to A) prepay, repay, redeem or purchase (including through open market purchases, voluntary tender offers or privately negotiated transactions at market prices) Pari Passu Indebtedness at a price of no more than 100% of the parenthetical contained in such clause (2)) above. Pending the final application of any such Net Cash Proceeds, the Company may temporarily reduce revolving credit borrowings or otherwise invest such Net Cash Proceeds in a manner that is not prohibited by this Agreement. The principal amount of such Net Cash Proceeds not so used as set forth above Pari Passu Indebtedness plus accrued and unpaid interest to the date of such prepayment, repayment, purchase or redemption; provided that the Issuer shall redeem, repay or repurchase Pari Passu Indebtedness that is Public Debt pursuant to this Section 4.10(b)(i)(A) only if the Issuer makes (at such time or subsequently in compliance with this paragraph shall constitute "Excess Proceeds."
(ccovenant) When the aggregate amount of Excess Proceeds exceeds $10,000,000, the Company will, within 30 days thereafter, make an offer to all holders of the Senior Notes to purchase (an "Excess Proceeds Offer") from all Holders of their Senior Notes on a pro rata basis, in accordance with the procedures provisions set forth in this Agreement, the maximum below for an Asset Sale Offer for an aggregate principal amount of Senior Notes at least equal to the proportion that (expressed as x) the total aggregate principal amount of Senior Notes outstanding bears to (y) the sum of the total aggregate principal amount of Senior Notes outstanding plus the total aggregate principal amount outstanding of such Pari Passu Indebtedness; (B) with respect to assets of a multiple Restricted Subsidiary that is not a Guarantor, prepay, repay, repurchase or redeem (including through open market purchases, voluntary tender offers or privately negotiated transactions at market prices) any of $1,000its Indebtedness; or (C) prepay, repay, repurchase or redeem any Indebtedness that is secured on any asset which security does not also secure the Senior Notes on a pari passu or senior basis (and in each of Sections 4.10(b)(i)(A) and (B) hereof and this Section 4.10(b)(i)(C), other than Indebtedness that is owed to the Issuer or a Restricted Subsidiary);
(ii) purchase Senior Notes that may be purchased with (a) pursuant to an offer to all holders of the Excess Proceeds, Senior Notes at a purchase price in cash equal to at least 100% of the principal amount thereof, plus accrued interestand unpaid interest to, but not including, the date of purchase (subject to the right of holders of record on the relevant record date to receive interest due on the relevant interest payment date) (a "Notes Offer") or (b) pursuant to Section 3.07 hereof;
(iii) 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;
(iv) make a capital expenditure;
(v) acquire other assets (other than Capital Stock) that are used or useful in a Permitted Business;
(vi) invest in any Replacement Assets;
(vii) enter into a commitment approved by the Board of Directors or otherwise binding on the Issuer to apply the Net Proceeds pursuant to Sections 4.10(b)(iii), (iv), (v) or (vi) hereof; provided that such commitment shall be treated as a permitted application of the Net Proceeds from the date of such commitment until the earlier of (x) the date on which such acquisition or expenditure is consummated, and (y) the 180th day following the expiration of the aforementioned 365 day period; or
(viii) any combination of the foregoing.
(c) Pending the final application of any Net Proceeds, the Issuer (or the applicable Restricted Subsidiary) may temporarily reduce revolving credit borrowings or otherwise invest the Net Proceeds in any manner that is not prohibited by this Senior Notes Indenture.
(d) Any Net Proceeds from Asset Sales that are not applied or invested as provided in Section 4.10(b) hereof will constitute "Excess Proceeds." When the aggregate amount of Excess Proceeds exceeds $40.0 million, within ten Business Days thereof, or at any earlier time at the Issuer's election, the Issuer will make an offer (an "Asset Sale Offer") to all Holders and may, to the extent the Issuer so elects, make an offer to holders of Pari Passu Indebtedness to purchase, prepay or redeem with the proceeds of sales of assets in accordance with Section 3.10 hereof the maximum principal amount of Senior Notes and such other Pari Passu Indebtedness (plus all accrued interest on the Indebtedness and the amount of all fees and expenses, including premiums, incurred in connection therewith) that may be purchased, prepaid or redeemed out of the Excess Proceeds. The offer price for the Senior Notes in any Asset Sale Offer will be equal to (i) solely in the case of the Senior Notes, 100% of the principal amount of the applicable series, which shall be repurchased in integral multiples of $1,000; provided that Senior Notes of $200,000 or less may only be redeemed in whole and not in part; and (ii) solely in the case of any other Pari Passu Indebtedness, no greater than 100% of the principal amount, plus, in the case of (i) and (ii), accrued and unpaid interest and Additional Amounts, if any, to the date such offer of purchase, prepayment or redemption, subject to purchase is consummatedthe rights of the Holders on the relevant record date to receive interest due on the relevant interest payment date, and will be payable in cash. To the extent that the aggregate principal amount If any Excess Proceeds remain after consummation of Notes tendered pursuant to such offer to purchase is less than the Excess Proceedsan Asset Sale Offer, the Company Issuer and its Restricted Subsidiaries may use such deficiency those Excess Proceeds for general corporate purposesany purpose not otherwise prohibited by this Senior Notes Indenture. If the aggregate principal amount of Senior Notes validly and other Pari Passu Indebtedness tendered and not withdrawn by holders thereof into (or to be prepaid or redeemed in connection with) such Asset Sale Offer exceeds the amount of Excess Proceeds, or if the aggregate principal amount of Senior Notes tendered pursuant to an Asset Sale Offer that is an application of Net Proceeds pursuant to Section 4.10(b)(i) hereof exceeds the amount of the Net Proceeds so applied, the Trustee or the Registrar, as applicable, will select the Senior Notes and such other Pari Passu Indebtedness, if applicable, to be purchased will be selected on a pro rata basisbasis (or in the manner described under Section 3.02 hereof), based on the amounts tendered or required to be prepaid or redeemed in integral multiples of $1,000; provided that Senior Notes of $200,000 or less may only be redeemed in whole and not in part. Upon completion of such offer to purchaseeach Asset Sale Offer, the amount of Excess Proceeds will be reset to at zero. Neither the Trustee nor the Registrar shall be liable for any selections made by it in accordance with this Section 4.10.
(iiie) The Company Issuer will comply with the requirements of Rule 14e-1 under the U.S. Exchange Act and any other applicable securities laws and regulations thereunder to the extent such those laws and regulations are applicable in connection with each repurchase of Senior Notes pursuant to a Change of Control Offer, an Excess Proceeds Asset Sale Offer or a Notes Offer. To the extent that the provisions of any securities laws or regulations conflict with the Change of Control or Asset Sales Sale provisions of this AgreementSenior Notes Indenture, the Company Issuer will comply with the applicable securities laws and regulations and will not be deemed to have breached its obligations under Section 5(j) the Change of Control or Asset Sale provisions of this Agreement Senior Notes Indenture by virtue of such conflictcompliance.
(f) The Issuer or a Restricted Subsidiary, as the case may be, may make an Asset Sale Offer prior to the expiration of the 365-day period mentioned in this Section 4.10. The provisions of this Senior Notes Indenture relating to the Issuer's obligation to make an Asset Sale Offer may be waived or modified with the consent of Holders of a majority in outstanding aggregate principal amount of the Senior Notes.
Appears in 1 contract
Asset Sales. (i) The Company shall not, and shall not permit any of its Restricted Subsidiaries to, consummate an Asset Sale unless: (i) the Company (or the Restricted Subsidiary, as the case may be) receives consideration at the time of the Asset Sale at least equal to the fair market value of the assets disposed of or the Equity Interests of the Restricted Subsidiary to, engage in any Asset Sale unless issued or sold or otherwise disposed of (xdetermined by the Board of Directors of the Company if such fair market value exceeds $5.0 million); and (ii) at least 75% of the consideration received in the Asset Sale by the Company or such Restricted Subsidiary for such Asset Sale is not less than in the fair market value form of the assets sold evidenced by a resolution of the board of directors of such entity set forth in an Officers' Certificate delivered to the Holders and (y) the consideration received by the Company or the relevant Restricted Subsidiary in respect of such Asset Sale consists of at least 75% cash or Cash Equivalents (for Equivalents. For purposes of this clause provision, each of the following will be deemed to be cash or Cash Equivalents: (y), cash and Cash Equivalents includes (Aa) any liabilities (liabilities, as reflected in shown on the Company's consolidated ’s or such Restricted Subsidiary’s most recent balance sheet) , of the Company or any such Restricted Subsidiary (other than contingent liabilities and liabilities that are by their terms subordinated to the Notes or any Subsidiary Guarantee) that are assumed by any the transferee of any such assets or other property in terminated by the holder of such Asset Sale, liability and where the Company or the relevant such Restricted Subsidiary is released from any further liability in connection therewith with respect to such liabilities, liability; (Bb) any securities, notes or other similar obligations received by the Company or any such Restricted Subsidiary from such transferee that are converted within 180 days of the consummation of the related Asset Sale by the Company or such Restricted Subsidiary into cash and or Cash Equivalents (within 90 days after receipt, to the extent of the net cash proceeds or the Cash Equivalents received in that conversion; (net of related costs) received upon such conversion) and (Cc) any Designated Noncash Non-cash Consideration received by the Company or any such Restricted Subsidiary in the such Asset Sale having an aggregate fair market value, as determined by the Board of the Company, taken together with all other Designated Noncash Non-cash Consideration received pursuant to this clause (c) that is at that time outstandinghas not been converted to cash, not to exceed the greater of:
(1) $10,000,000; and
(2) 15% of Consolidated Tangible Assets at the time of the receipt of such Designated Noncash Consideration (with the fair market value of each item of such Designated Noncash Consideration being measured at the time received and without giving effect to subsequent changes in value).
(ii) If the Company or any Restricted Subsidiary engages in an Asset Sale, the Company may, at its option, within 12 months after such Asset Sale, (1) apply all or a portion of the Net Cash Proceeds to the permanent reduction of amounts outstanding under the Credit Agreement (and to correspondingly reduce the commitments, if any, with respect thereto) or to the permanent repayment of other Senior Indebtedness of the Company or a Restricted Subsidiary, provided that the repayment of any Indebtedness incurred under the Credit Agreement in connection with the acquisition of any Facility with the proceeds of any subsequent Sale and Leaseback Transaction relating to such Facility shall not be required to result in the permanent reduction of the amounts outstanding under the Credit Agreement or correspondingly permanently reduce the commitments thereunder, or (2) invest (or enter into a legally binding agreement to invest) all or a portion of such Net Cash Proceeds in properties and assets to replace the properties and assets that were the subject of the Asset Sale or in properties and assets that will be used in the businesses of the Company or its Restricted Subsidiaries, as the case may be, existing on the Closing Date or in businesses the same, similar or reasonably related thereto. If any such legally binding agreement to invest such Net Cash Proceeds is terminated, the Company may, within 90 days of such termination or within 12 months of such Asset Sale, whichever is later, invest such Net Cash Proceeds as provided in clause (1) or (2) (without regard to the parenthetical contained in such clause (2)) above. Pending the final application of any such Net Cash Proceeds, the Company may temporarily reduce revolving credit borrowings or otherwise invest such Net Cash Proceeds in a manner that is not prohibited by this Agreement. The amount of such Net Cash Proceeds not so used as set forth above in this paragraph shall constitute "Excess Proceeds."
(c) When the aggregate amount of Excess Proceeds exceeds $10,000,000, the Company will, within 30 days thereafter, make an offer to purchase (an "Excess Proceeds Offer") from all Holders of Notes on a pro rata basis, in accordance with the procedures set forth in this Agreement, the maximum principal amount (expressed as a multiple of $1,000) of Notes that may be purchased with the Excess Proceeds, at a purchase price in cash equal to 100% of the principal amount thereof, plus accrued interest, if any, to the date such offer to purchase is consummated. To the extent that the aggregate principal amount of Notes tendered pursuant to such offer to purchase is less than the Excess Proceeds, the Company may use such deficiency for general corporate purposes. If the aggregate principal amount of Notes validly tendered and not withdrawn by holders thereof exceeds the Excess Proceeds, the Notes to be purchased will be selected on a pro rata basis. Upon completion of such offer to purchase, the amount of Excess Proceeds will be reset to zero.
(iii) 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 Excess Proceeds Offer. To the extent that the provisions of any securities laws or regulations conflict with the Asset Sales provisions of this Agreement, the Company will comply with the applicable securities laws and regulations and will not be deemed to have breached its obligations under Section 5(j) of this Agreement by virtue of such conflict.exceed
Appears in 1 contract
Asset Sales. (ia) The Company shall not, and shall not permit any of its Restricted Subsidiary Subsidiaries to, engage in any consummate an Asset Sale unless unless:
(xi) the Company (or the Restricted Subsidiary, as the case may be) receives consideration at the time of such Asset Sale at least equal to the fair market value of the assets or Equity Interests issued or sold or otherwise disposed of;
(ii) such fair market value is determined in good faith by (a) an executive officer of the General Partner if the value is less than $20.0 million, as evidenced by an Officers’ Certificate delivered to the Trustee or (b) the Board of Directors of the General Partner if the value is $20.0 million or more, as evidenced by a resolution of such Board of Directors of the General Partner; and
(iii) except in the case of a Permitted Asset Swap, at least 75% of the consideration therefor received by the Company or such Restricted Subsidiary for such Asset Sale is not less than in the fair market value form of the assets sold evidenced by a resolution of the board of directors of such entity set forth in an Officers' Certificate delivered to the Holders and (y) the consideration received by the Company or the relevant Restricted Subsidiary in respect of such Asset Sale consists of at least 75% cash or Cash Equivalents (for Equivalents. For purposes of this clause (yiii), cash and Cash Equivalents includes each of the following shall be deemed to be cash:
(A) any liabilities (as reflected in shown on the Company's consolidated ’s or such Restricted Subsidiary’s most recent balance sheet) of the Company or any Restricted Subsidiary (other than contingent liabilities and liabilities that are by their terms subordinated to the Notes or any Guarantee) that are assumed by any the transferee of any such assets or other property in such Asset Sale, and where pursuant to a customary novation agreement that releases the Company or the relevant such Restricted Subsidiary is released from any further liability in connection therewith with respect to such liabilities, liability; and
(B) any securities, notes or other similar obligations Obligations received by the Company or any such Restricted Subsidiary from such transferee that are converted within 180 days of after the consummation of the related Asset Sale converted by the Company such Issuer or such Restricted Subsidiary into cash and Cash Equivalents (to the extent of the net cash proceeds or the Cash Equivalents (net of related costs) received upon such in that conversion) and (C) any Designated Noncash Consideration received by the Company or any such Restricted Subsidiary in the Asset Sale having an aggregate fair market value, as determined by the Board of the Company, taken together with all other Designated Noncash Consideration received pursuant to this clause that is at that time outstanding, not to exceed the greater of:
(1) $10,000,000; and
(2) 15% of Consolidated Tangible Assets at the time of the receipt of such Designated Noncash Consideration (with the fair market value of each item of such Designated Noncash Consideration being measured at the time received and without giving effect to subsequent changes in value).
(iib) If Within 360 days after the receipt of any Net Proceeds from an Asset Sale (or within 90 days after such 360-day period in the event the Company or any Restricted Subsidiary engages in an Asset Sale, the Company may, at its option, within 12 months after such Asset Sale, (1) apply all or enters into a portion of the Net Cash Proceeds to the permanent reduction of amounts outstanding under the Credit Agreement (and to correspondingly reduce the commitments, if any, binding commitment with respect thereto) or to the permanent repayment of other Senior Indebtedness of such application), the Company or a Restricted Subsidiary, provided that Subsidiary may apply such Net Proceeds at its option:
(i) to repay secured Indebtedness of the Company and/or its Restricted Subsidiaries and/or to satisfy all mandatory repayment of any Indebtedness incurred obligations under the Credit Agreement in connection with the acquisition of any Facility with the proceeds of any subsequent Sale and Leaseback Transaction relating to such Facility shall not be required to result in the permanent reduction of the amounts outstanding under the Credit Agreement or correspondingly permanently reduce the commitments thereunder, or (2) invest (or enter into a legally binding agreement to invest) all or a portion of such Net Cash Proceeds in properties and assets to replace the properties and assets that were the subject of the Asset Sale or in properties and assets that will be used in the businesses of the Company or its Restricted Subsidiaries, as the case may be, existing on the Closing Date or in businesses the same, similar or reasonably related thereto. If any such legally binding agreement to invest such Net Cash Proceeds is terminated, the Company may, within 90 days of such termination or within 12 months Facilities arising by reason of such Asset Sale, whichever ;
(ii) to make a capital expenditure in a Permitted Business;
(iii) to acquire other tangible assets that are used or useful in a Permitted Business; or
(iv) to acquire all or substantially all of the assets of a Person engaged in a Permitted Business or Equity Interests of a Person engaged in a Permitted Business so long as such Person or the Person to which such assets are transferred is later, invest such Net Cash Proceeds as provided in clause (1) or (2) (without regard to the parenthetical contained in such clause (2)) abovea Restricted Subsidiary. Pending the final application of any such Net Cash Proceeds, the Company may temporarily reduce revolving credit borrowings or otherwise invest such Net Cash Proceeds in a any manner that is not prohibited by this Agreement. The amount of such Net Cash Proceeds not so used as set forth above in this paragraph shall constitute "Excess ProceedsIndenture."
(c) When the aggregate amount of Excess Proceeds exceeds $10,000,000, the Company will, within 30 days thereafter, make an offer to purchase (an "Excess Proceeds Offer") from all Holders of Notes on a pro rata basis, in accordance with the procedures set forth in this Agreement, the maximum principal amount (expressed as a multiple of $1,000) of Notes that may be purchased with the Excess Proceeds, at a purchase price in cash equal to 100% of the principal amount thereof, plus accrued interest, if any, to the date such offer to purchase is consummated. To the extent that the aggregate principal amount of Notes tendered pursuant to such offer to purchase is less than the Excess Proceeds, the Company may use such deficiency for general corporate purposes. If the aggregate principal amount of Notes validly tendered and not withdrawn by holders thereof exceeds the Excess Proceeds, the Notes to be purchased will be selected on a pro rata basis. Upon completion of such offer to purchase, the amount of Excess Proceeds will be reset to zero.
(iii) 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 Excess Proceeds Offer. To the extent that the provisions of any securities laws or regulations conflict with the Asset Sales provisions of this Agreement, the Company will comply with the applicable securities laws and regulations and will not be deemed to have breached its obligations under Section 5(j) of this Agreement by virtue of such conflict.
Appears in 1 contract
Asset Sales. (a) The Company will not, and will not permit any of its Restricted Subsidiaries to cause, make or suffer to exist any Asset Sale, unless:
(i) The no Default exists or is continuing immediately prior to and after giving effect to such Asset Sale;
(ii) the Company shall not(or the Restricted Subsidiary, and shall not permit any Restricted Subsidiary to, engage in any as the case may be) receives consideration at the time of such Asset Sale unless at least equal to the fair market value (xevidenced for purposes of this Section 4.10 by a resolution of the Board of Directors set forth in an Officer's Certificate delivered to the Trustee) of the assets sold or otherwise disposed of; and
(iii) at least 80% of the consideration therefor received by the Company or such Restricted Subsidiary for is in the form of (w) Cash Equivalents, (x) Replacement Assets, (y) publicly traded Equity Interests of a Person who is, directly or indirectly, engaged primarily in one or more Cable Businesses; provided, however, that the Company or such Asset Sale is Restricted Subsidiary shall Monetize such Equity Interests by sale to one or more Persons (other than to the Company or a Subsidiary thereof) at a price not less than the fair market value thereof within 180 days of the assets sold evidenced by a resolution of the board of directors of such entity set forth in an Officers' Certificate delivered to the Holders and (y) the consideration received by the Company or the relevant Restricted Subsidiary in respect consummation of such Asset Sale consists Sale, or (z) any combination of at least 75% cash or Cash Equivalents the foregoing clauses (for purposes of this clause w) through (y); provided, cash and Cash Equivalents includes however, that the amount of (Ax) any liabilities (as reflected in shown on the Company's consolidated or such Restricted Subsidiary's most recent balance sheetsheet or in the notes thereto) of the Company or any Restricted Subsidiary (other than contingent liabilities and liabilities that are by their terms subordinated to the Notes or any GuaranteeNotes) that are assumed by any the transferee of any such assets or other property in such Asset Sale, and where the Company or the relevant Restricted Subsidiary is released from any further liability in connection therewith with respect to such liabilities, (By) any securities, notes or other similar obligations received by the Company or any such Restricted Subsidiary from such transferee that are within five Business Days converted within 180 days of the consummation of the related Asset Sale by the Company or such Restricted Subsidiary into cash and cash, shall be deemed to be Cash Equivalents (to the extent of the net cash proceeds or the Cash Equivalents (net of related costs) received upon in such conversion) and (C) any Designated Noncash Consideration received by the Company or any such Restricted Subsidiary in the Asset Sale having an aggregate fair market value, as determined by the Board for purposes of the Company, taken together with all other Designated Noncash Consideration received pursuant to this clause that is at that time outstanding, not to exceed the greater of:
(1) $10,000,000; and
(2) 15% of Consolidated Tangible Assets at the time of the receipt of such Designated Noncash Consideration (with the fair market value of each item of such Designated Noncash Consideration being measured at the time received and without giving effect to subsequent changes in valueiii).
(iib) If the Company or Within 360 days after any Restricted Subsidiary engages in an Asset Sale, the Company may, at its option, within 12 months after such Asset Sale, (1) apply all or a portion of the Net Cash Proceeds to the permanent reduction of amounts outstanding under the Credit Agreement (and to correspondingly reduce the commitments, if any, with respect thereto) or to the permanent repayment of other Senior Indebtedness of the Company or a Restricted Subsidiary, provided that the repayment of any Indebtedness incurred under the Credit Agreement in connection with the acquisition of any Facility with the proceeds of any subsequent Sale and Leaseback Transaction relating to such Facility shall not be required to result in the permanent reduction of the amounts outstanding under the Credit Agreement or correspondingly permanently reduce the commitments thereunder, or (2) invest (or enter into a legally binding agreement to invest) all or a portion of such Net Cash Proceeds in properties and assets to replace the properties and assets that were the subject of the Asset Sale or in properties and assets that will be used in the businesses of the Company or its Restricted Subsidiaries, as the case may be, existing on ) shall cause the Closing Date or in businesses the same, similar or reasonably related thereto. If any such legally binding agreement to invest such Net Cash Proceeds is terminated, the Company may, within 90 days of such termination or within 12 months of from such Asset Sale, whichever is later, invest such Net Cash Proceeds as provided :
(i) to be used to permanently reduce Indebtedness of a Restricted Subsidiary; or
(ii) to be invested or reinvested in clause (1) or (2) (without regard to the parenthetical contained in such clause (2)) aboveReplacement Assets. Pending the final application of any such Net Cash Proceeds, the Company may temporarily reduce revolving credit borrowings or otherwise invest such Net Cash Proceeds in a any manner that is not prohibited by this AgreementIndenture or the indentures for the Other Qualified Notes. The amount of such Any Net Cash Proceeds from any Asset Sale that are not so used or reinvested as set forth above provided in this paragraph shall the preceding sentence constitute "Excess ProceedsEXCESS PROCEEDS."
(c) " When the aggregate amount of Excess Proceeds exceeds $10,000,00015 million, the Company will, within 30 days thereafter, shall make an offer to purchase (an "Excess Proceeds OfferASSET SALE OFFER") from to all Holders holders of Notes and Other Qualified Notes to purchase the maximum principal amount of Notes and Other Qualified Notes (determined on a pro rata basisbasis according to the accreted value or principal amount, as the case may be, of the Notes and the Other Qualified Notes and in accordance with Section 3.09(g)(i)) that may be purchased out of the Excess Proceeds (x) with respect to the Other Qualified Notes, based on the terms set forth in the indenture related to each issue of the Other Qualified Notes and (y) with respect to the Notes, 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 this Agreement, the maximum principal amount (expressed as a multiple of $1,000) of Notes that may be purchased with the Excess Proceeds, at a purchase price in cash equal to 100% of the principal amount thereof, plus accrued interest, if any, to the date such offer to purchase is consummatedSection 3.09 hereof. To the extent that the aggregate principal amount or accreted value, as the case may be, of Notes and Other Qualified Notes tendered pursuant to such offer to purchase an Asset Sale Offer is less than the Excess Proceeds, the Company may use such deficiency for general corporate purposes. If the aggregate principal amount or accreted value, as the case may be, of Notes validly tendered and not withdrawn Other Qualified Notes surrendered by holders thereof exceeds the amount of Excess Proceeds, then such remaining Excess Proceeds shall be allocated pro rata according to accreted value or principal amount, as the case may be, to the Notes and each issue of the Other Qualified Notes and in accordance with Section 3.09(g)(ii), and the Trustee shall select the Notes to be purchased will be selected from the amount allocated to the Notes on a pro rata basisthe basis set forth in Section 3.09(e) hereof. Upon completion of such offer offers to purchasepurchase each of the Notes and the Other Qualified Notes, the amount of Excess Proceeds will be reset to at zero.
(iiic) 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 Excess Proceeds Offer. To the extent that Notwithstanding the provisions of any securities laws or regulations conflict with the Asset Sales provisions of this Agreement, Sections 4.10(a) and (b): the Company will comply 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 applied within five Business Days 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 Replacement Assets 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 applicable securities laws Company's Subsidiaries to a Cable Controlled Subsidiary, in each of cases (x) and regulations (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 will not be deemed (B) either (I) the assets so contributed consist solely of a license to have breached 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 obligations under Section 5(jRestricted 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 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; or
(iii) issue, sell, lease, transfer, convey or otherwise dispose of Equity Interests (other than Disqualified Stock) of this Agreement by virtue of such conflictthe Company (or any Capital Stock Sale Proceeds therefrom) to any Person (including Non-Restricted Subsidiaries).
Appears in 1 contract
Samples: Indenture (NTL Communications Corp)
Asset Sales. (ia) The Company shall not, and shall not permit any Restricted Subsidiary of its Subsidiaries to, engage in make any Asset Sale unless unless:
(x1) the Company (or the Subsidiary, as the case may be) receives consideration at the time of such Asset Sale at least equal to the fair market value (as determined in good faith and evidenced by a resolution of the Board of Directors set forth in an Officers’ Certificate delivered to the Trustee) of the assets or Equity Interests issued or sold or otherwise disposed of; and
(2) at least 75% of the consideration therefor received by the Company or such Restricted Subsidiary for such Asset Sale is not less than in the fair market value form of the assets sold evidenced by a resolution of the board of directors of such entity set forth in an Officers' Certificate delivered to the Holders and (y) the consideration received by the Company or the relevant Restricted Subsidiary in respect of such Asset Sale consists of at least 75% cash or Cash Equivalents Equivalents; provided that the amount of:
(for purposes of this clause (y), cash and Cash Equivalents includes (A1) any liabilities (as reflected in shown on the Company's consolidated ’s or such Subsidiary’s most recent balance sheet) of the Company or any Restricted Subsidiary (other than contingent liabilities and liabilities that are by their terms subordinated to the Notes or any GuaranteeGuarantee thereof) that are assumed by any the transferee of any such assets or other property in such Asset Sale, and where pursuant to any arrangement releasing the Company or the relevant Restricted such Subsidiary is released from any further liability in connection therewith with respect to such liabilities, liability; and
(B2) any securities, notes or other similar obligations received by the Company or any such Restricted Subsidiary from such transferee that are contemporaneously (subject to ordinary settlement periods) converted within 180 days of the consummation of the related Asset Sale by the Company or such Restricted Subsidiary into cash and or Cash Equivalents (to the extent of the net cash proceeds or the Cash Equivalents (net received in that conversion), shall be deemed to be cash for purposes of related costs) received upon such conversion) and (C) any Designated Noncash Consideration received by the Company or any such Restricted Subsidiary in the Asset Sale having an aggregate fair market value, as determined by the Board of the Company, taken together with all other Designated Noncash Consideration received pursuant to this clause that is at that time outstanding, not to exceed the greater of:provision.
(1b) $10,000,000; and
(2) 15% of Consolidated Tangible Assets at the time of Within 360 days after the receipt of such Designated Noncash Consideration (with the fair market value of each item of such Designated Noncash Consideration being measured at the time received and without giving effect to subsequent changes in value).
(ii) If the Company or any Restricted Subsidiary engages in Net Proceeds from an Asset Sale, the Company may, may apply such Net Proceeds at its option, within 12 months after such Asset Sale, :
(1) apply all to permanently reduce secured or a portion of the Net Cash Proceeds to the permanent reduction of amounts outstanding under the Credit Agreement equally-ranked Indebtedness (and to correspondingly reduce the commitments, if any, commitments with respect thereto); or
(2) or to the permanent repayment making of other Senior Indebtedness of the Company a capital expenditure or a Restricted Subsidiary, provided that the repayment of any Indebtedness incurred under the Credit Agreement in connection with the acquisition of any Facility with a controlling interest in another business or other long-term assets, in each case, in a line of business the proceeds of any subsequent Sale and Leaseback Transaction relating to such Facility shall not be required to result in the permanent reduction of the amounts outstanding under the Credit Agreement or correspondingly permanently reduce the commitments thereundersame as, or (2) invest (similar or enter into a legally binding agreement to invest) all or a portion related to, the line of such Net Cash Proceeds in properties and assets to replace the properties and assets that were the subject of the Asset Sale or in properties and assets that will be used in the businesses of business the Company or and its Restricted Subsidiaries, as the case may be, existing Subsidiaries were engaged in on the Closing Date or in businesses the same, similar or reasonably related thereto. If any such legally binding agreement to invest such Net Cash Proceeds is terminated, the Company may, within 90 days date of such termination or within 12 months of such Asset Sale, whichever is later, invest such Net Cash Proceeds as provided in clause this Indenture.
(1c) or (2) (without regard to the parenthetical contained in such clause (2)) above. Pending the final application of any such Net Cash Proceeds, the Company may temporarily reduce revolving credit borrowings Indebtedness under the Replacement Credit Facility or otherwise invest such Net Cash Proceeds in a any manner that is not prohibited by this Agreement. The amount of such Indenture.
(d) Any Net Cash Proceeds from Asset Sales that are not so used applied or invested as set forth provided in the subsection (b) above in this paragraph shall be deemed to constitute "“Excess Proceeds."
(c) ” When the aggregate amount of Excess Proceeds exceeds $10,000,00010.0 million, the Company will, within 30 days thereafter, make shall be required to commence an offer Asset Sale Offer pursuant to purchase (an "Excess Proceeds Offer") from Section 3.09 hereof to all Holders of Notes on a pro rata basisand all Pari Passu Holders, in accordance with the procedures set forth in this Agreement, to purchase the maximum principal amount (expressed as a multiple of $1,000) of Notes and Pari Passu Debt that may be purchased with out of the Excess Proceeds. The Company shall comply, at to the extent applicable, with the requirements of Section 14(e) of, and Rule 14e-1 under, the Exchange Act and any other securities laws and regulations thereunder in connection with the repurchase of the Notes as a purchase result of an Asset Sale Offer. To the extent that the provisions of any securities laws or regulations conflict with the provisions of this Indenture, the Company shall comply with the applicable securities laws and regulations and shall not be deemed to have breached its obligations under this Indenture by virtue of its compliance with such securities laws or regulations. The offer price for such Asset Sale Offer shall be an amount in cash equal to 100% of the principal amount thereof, plus accrued interestand unpaid interest and Liquidated Damages, if any, thereon to the date of purchase, in accordance with the procedures set forth in Section 3.09 and the instrument or instruments governing such offer to purchase is consummatedPari Passu Debt, respectively. To the extent that the aggregate principal amount of Notes and Pari Passu Debt tendered pursuant to such offer to purchase an Asset Sale Offer is less than the Excess Proceeds, the Company may use such deficiency any remaining Excess Proceeds for general corporate purposes. If the aggregate principal amount of Notes validly tendered and not withdrawn Pari Passu Debt surrendered by holders thereof Holders and Pari Passu Holders, respectively, exceeds the amount of the Excess Proceeds, the Trustee shall select the Notes to be purchased will be selected on a pro rata basis. Upon completion of such offer to purchase, the amount of Excess Proceeds will shall be reset to at zero.
(iii) 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 Excess Proceeds Offer. To the extent that the provisions of any securities laws or regulations conflict with the Asset Sales provisions of this Agreement, the Company will comply with the applicable securities laws and regulations and will not be deemed to have breached its obligations under Section 5(j) of this Agreement by virtue of such conflict.
Appears in 1 contract
Asset Sales. (i) The Company shall not, and shall not permit any of its Restricted Subsidiary Subsidiaries to, engage in any consummate an Asset Sale unless unless:
(x1) the Company (or the Restricted Subsidiary, as the case may be) receives consideration at least equal to the fair market value of the assets or Equity Interests issued or sold or otherwise disposed of (such fair market value to be determined on the date of contractually agreeing to such Asset Sale);
(2) the fair market value is determined by the Company’s Board of Directors and evidenced by a resolution of the Board of Directors of the Company set forth in an Officers’ Certificate delivered to the Trustee; and
(3) at least 75% of the consideration received in the Asset Sale by the Company or such Restricted Subsidiary for such Asset Sale is not less than in the fair market value form of the assets sold evidenced by a resolution of the board of directors of such entity set forth in an Officers' Certificate delivered to the Holders and (y) the consideration received by the Company or the relevant Restricted Subsidiary in respect of such Asset Sale consists of at least 75% cash or Cash Equivalents (for Equivalents. For purposes of this clause provision, each of the following shall be deemed to be cash:
(y)a) the amount of any liabilities, cash and Cash Equivalents includes (A) any liabilities (as reflected shown on the Company’s most recent consolidated balance sheet or in the Company's consolidated balance sheet) notes thereto, of the Company or any such Restricted Subsidiary (other than contingent liabilities and liabilities that are by their terms subordinated to the Notes or any Guarantee) that are assumed by any the transferee of any such assets or other property in such Asset Saleassets; provided, and where that the Company or the relevant such Restricted Subsidiary is contractually released from any further liability in connection therewith with respect to such liabilities, ;
(Bb) any securities, notes or other similar obligations received by the Company or any such Restricted Subsidiary from such transferee that are converted promptly, but in any event within 180 120 days after the date of the consummation of the related Asset Sale Sale, converted by the Company or such Restricted Subsidiary into cash and or Cash Equivalents (Equivalents, to the extent of the net cash proceeds or the Cash Equivalents received in that conversion;
(net c) property received as consideration for such Asset Sale that would otherwise constitute a permitted application of related costsNet Proceeds (or other cash in such amount) received upon such conversionunder clauses (3), (4) and (C6) under the next succeeding paragraph below; and
(d) any Designated Noncash Non-cash Consideration received by the Company or any such Restricted Subsidiary in the Asset Sale having an aggregate fair market value, value (as determined in good faith by the Board of the Company), taken together with all other Designated Noncash Non-cash Consideration received pursuant to this clause that is at that time outstanding(d), not to exceed exceeding the greater of:
(1) of $10,000,000; and
(2) 1515.0 million and 2.0% of Consolidated Tangible the Total Assets of the Company at the time of the receipt of such Designated Noncash Consideration (Non-cash Consideration, with the fair market value of each item of such Designated Noncash Non-cash Consideration being measured at the time received and without giving effect to subsequent changes in value).
(ii) If . Within 365 days after the Company or receipt of any Restricted Subsidiary engages in Net Proceeds from an Asset Sale, the Company may, or any of its Restricted Subsidiaries may apply those Net Proceeds at its option, within 12 months after such Asset Sale, the option of the Company to:
(1) apply all or a permanently repay Indebtedness and other Obligations under the revolving loan portion of the Net Cash Proceeds to the permanent reduction of amounts outstanding under the any Credit Agreement (and to correspondingly reduce the commitments, if any, with respect thereto) or to the permanent repayment of other Senior Indebtedness of the Company or a Restricted Subsidiary, provided that the repayment of any Indebtedness incurred under the Credit Agreement in connection with the acquisition of any Facility with the proceeds of any subsequent Sale and Leaseback Transaction relating to such Facility shall not be required to result in the permanent reduction of the amounts outstanding under the Credit Agreement or correspondingly permanently reduce the commitments thereunder, or Facility;
(2) invest repay (a) the term loan portion of any Credit Facility, (b) any Indebtedness secured by a Lien, (c) repay other Indebtedness ranking pari passu with the Notes that has a Stated Maturity prior to the Stated Maturity of the Notes or enter into (d) any Indebtedness of a legally binding agreement to investRestricted Subsidiary that is not a Guarantor;
(3) acquire all or a portion of such Net Cash Proceeds in properties and assets to replace the properties and assets that were the subject substantially all of the Asset Sale assets of, or in properties and assets that will be used in the businesses a majority of the Company Voting Stock of, another Permitted Business;
(4) acquire Capital Stock constituting a minority interest in any Person that at such time is a Restricted Subsidiary of the Company;
(5) make a capital expenditure relating to an asset used or its Restricted Subsidiaries, as the case may be, existing on the Closing Date useful in a Permitted Business; or
(6) acquire non-current assets (including lease fleet and transportation equipment) that are used or useful in businesses the same, similar or reasonably related thereto. If any such legally binding agreement to invest such Net Cash Proceeds is terminated, the Company may, within 90 days of such termination or within 12 months of such Asset Sale, whichever is later, invest such Net Cash Proceeds as provided in clause (1) or (2) (without regard to the parenthetical contained in such clause (2)) above. a Permitted Business Pending the final application of any such Net Cash Proceeds, the Company or any of its Restricted Subsidiaries may temporarily reduce revolving credit other borrowings or otherwise invest such the Net Cash Proceeds in a any manner that is not prohibited by this AgreementIndenture. The amount Any Net Proceeds from an Asset Sale not applied in accordance with the preceding paragraph within 365 days from the date of the receipt of such Net Cash Proceeds not so used as set forth above in this paragraph (or at the Issuers’ option, an earlier date) shall constitute "“Excess Proceeds” unless binding contractual commitments to apply such Net Proceeds in accordance with the preceding paragraph have been entered into prior to the end of such 365-day period and shall not have been completed or abandoned; provided, however, that the amount of any Net Proceeds that is not actually reinvested within 545 days from the date of the receipt of such Net Proceeds shall also constitute “Excess Proceeds."
(c) ” When the aggregate amount of Excess Proceeds exceeds $10,000,00010.0 million, the Company will, within 30 days thereafter, Issuers shall make an offer to purchase (an "Excess Proceeds “Asset Sale Offer"”) from to all Holders of Notes on a pro rata basis, in accordance and all holders of other Indebtedness that is pari passu with the procedures Notes containing provisions similar to those set forth in this Agreement, Indenture with respect to offers to purchase or redeem with the proceeds of sales of assets to purchase the maximum principal amount (expressed as a multiple of $1,000) of Notes and such other pari passu Indebtedness that may be purchased with out of the Excess Proceeds, at a purchase . The offer price in cash any Asset Sale Offer shall be equal to 100% of the principal amount (or accreted value, as applicable) of the Notes and such other pari passu Indebtedness in each case equal to $2,000 or an integral multiple of $1,000 in excess thereof, plus accrued interestand unpaid interest and Additional Interest, if any, to the date such offer to purchase is consummatedof purchase, and shall be payable in cash. To If any Excess Proceeds remain after the extent that the aggregate principal amount consummation of Notes tendered pursuant to such offer to purchase is less than the Excess Proceedsan Asset Sale Offer, the Company or any of its Restricted Subsidiaries may use such deficiency those Excess Proceeds for general corporate purposesany purpose not otherwise prohibited by this Indenture. If the aggregate principal amount of Notes validly and other pari passu Indebtedness tendered and not withdrawn by holders thereof in such Asset Sale Offer exceeds the amount of Excess Proceeds, the Excess Proceeds shall be allocated by the Issuers to the Notes to be purchased will be selected and such other pari passu Indebtedness on a pro rata basisbasis (based upon the respective principal amounts (or accreted value, if applicable) of the Notes and such other pari passu Indebtedness tendered into such Asset Sale Offer) and the portion of each Note to be purchased shall thereafter be determined by the Trustee on a pro rata basis among the Holders of such Notes with appropriate adjustments such that the Notes may only be purchased in integral multiples of $1,000. Upon completion of such offer to purchaseeach Asset Sale Offer, the amount of Excess Proceeds will shall be reset at zero. If the Asset Sale purchase date is on or after an interest payment record date and on or before the related interest payment date, any accrued and unpaid interest and Additional Interest, if any, shall be paid to zero.
(iii) the Holder in whose name a Note is registered at the close of business on such record date, and no interest or Additional Interest, if any, shall be payable to Holders who tender Notes pursuant to the Asset Sale Offer. The Company will Issuers shall comply with the requirements of Rule 14e-1 14e-l under the Exchange Act and any other securities laws and regulations thereunder to the extent such those laws and regulations are applicable in connection with each repurchase of Notes pursuant to an Excess Proceeds Asset Sale Offer. To the extent that the provisions of any securities laws or regulations conflict with the Asset Sales Sale provisions of this AgreementIndenture, the Company will Issuers shall comply with the applicable securities laws and regulations and will shall not be deemed to have breached its their obligations under Section 5(j) the Asset Sale provisions of this Agreement Indenture by virtue of such conflict.
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Samples: Indenture (Mobile Storage Group Inc)