Asset Sales. The Company shall not, and shall not permit any of its Restricted Subsidiaries to, consummate an Asset Sale unless (i) the Company or such Restricted Subsidiary, as the case may be, receives consideration at the time of such Asset Sale at least equal to the fair market value (evidenced by a resolution of the Board of Directors set forth in an Officers' Certificate delivered to the Trustee) of the assets or Equity Interests issued or sold or otherwise disposed of and (ii) at least 75% of the consideration therefor received by the Company or such Restricted Subsidiary is in the form of cash or Cash Equivalents; provided that the amount of (a) any liabilities (as shown on the Company's or such Restricted Subsidiary's most recent balance sheet) of the Company or such Restricted Subsidiary (other than contingent liabilities and liabilities that are by their terms subordinated to the Notes or any guarantee thereof) that are assumed by the transferee of any such assets pursuant to a customary novation agreement that releases the Company or such Restricted Subsidiary from further liability, (b) any securities, notes or other obligations received by the Company or such Restricted Subsidiary from such transferee that are immediately converted by the Company or such Restricted Subsidiary into cash (to the extent of the cash received) and (c) escrowed cash that the Company reasonably believes will be released from escrow within 365 days from the date of consummation of such Asset Sale, in each case shall be deemed to be cash for purposes of this provision. Notwithstanding the immediately preceding paragraph, the Company and its Restricted Subsidiaries will be permitted to consummate an Asset Sale without complying with such paragraph if (i) the Company or the applicable Restricted Subsidiary, as the case may be, receives consideration at the time of such Asset Sale at least equal to the fair market value of the assets or other property sold, issued or otherwise disposed of (as evidenced by a resolution of the Company's Board of Directors set forth in an Officers' Certificate delivered to the Trustee) and (ii) at least 75% of the consideration for such Asset Sale constitutes a controlling interest in a Permitted Business, long-term assets used or useful in a Permitted Business and/or cash or Cash Equivalents; provided that any cash or Cash Equivalents received by the Company or any of its Restricted Subsidiaries in connection with any Asset Sale permitted to be consummated under this paragraph shall constitute Net Proceeds subject to the provisions of the next succeeding paragraph. Within 365 days of the receipt of any Net Proceeds from an Asset Sale, the Company may apply such Net Proceeds, at its option, (i) to repay Senior Debt under a Credit Facility (and to correspondingly reduce commitments with respect thereto in the case of revolving borrowings) or (ii) to the acquisition of a controlling interest in a Permitted Business, the making of a capital expenditure or the acquisition of other long-term assets, in each case, used or useful in a Permitted Business. Pending the final application of any such Net Proceeds, the Company may temporarily reduce Senior Debt or otherwise invest such Net Proceeds in any manner that is not prohibited by this Indenture. Any Net Proceeds from Asset Sales that are not applied or invested as provided in the first sentence of this paragraph shall be deemed to constitute "Excess Proceeds." When the aggregate amount of Excess Proceeds exceeds $10.0 million, the Company shall be required to make an offer to all Holders of Notes and all holders of other pari passu Indebtedness containing provisions similar to those set forth in this Indenture with respect to offers to purchase or redeem such other pari passu Indebtedness with the proceeds of sales of assets (an "Asset Sale Offer") to purchase the maximum principal amount of Notes and such other pari passu Indebtedness that may be purchased out of the Excess Proceeds at an offer price in cash in an amount equal to 100% of the principal amount thereof, plus accrued and unpaid interest and Liquidated Damages, if any, thereon to the date of purchase, in accordance with the procedures set forth in this Indenture and in such other pari passu Indebtedness. To the extent that the aggregate amount of Notes and such other pari passu Indebtedness tendered pursuant to an Asset Sale Offer is less than the Excess Proceeds, the Company may use any remaining Excess Proceeds for any purpose not otherwise prohibited by this Indenture. If the aggregate principal amount of Notes and such other pari passu Indebtedness surrendered by Holders thereof exceeds the amount of Excess Proceeds, the Trustee shall select the Notes and such other pari passu Indebtedness to be purchased on a pro rata basis. Upon completion of an Asset Sale Offer, the amount of Excess Proceeds shall be reset at zero.
Appears in 3 contracts
Sources: Indenture (SFX Broadcasting Inc), Indenture (SFX Entertainment Inc), Indenture (SFX Entertainment Inc)
Asset Sales. The Company shall not, and shall not permit No later than the first Business Day following the date of receipt by Holdings or any of its Restricted Subsidiaries to, consummate an of any Net Asset Sale unless (i) Proceeds, Company shall offer to prepay the Company or such Restricted Subsidiary, Loans as the case may be, receives consideration at the time of such Asset Sale at least equal to the fair market value (evidenced by a resolution of the Board of Directors set forth in Sections 2.14(b) and 2.14(d) in an Officers' Certificate delivered aggregate amount equal to such Net Asset Sale Proceeds; provided, so long as no Default or Event of Default shall have occurred and be continuing on or as of such first Business Day, Company shall have the Trusteeoption (exercisable upon written notice thereof to Administrative Agent on or prior to such first Business Day), directly or through one or more of its Subsidiaries, to invest Net Asset Sale Proceeds within three hundred and sixty five (365) days of receipt thereof in long-term productive assets of the assets or Equity Interests issued or sold or otherwise disposed of and (ii) at least 75% of the consideration therefor received by the Company or such Restricted Subsidiary is general type used in the form business of cash or Cash Equivalents; provided that the amount of (a) any liabilities (as shown on the Company's or such Restricted Subsidiary's most recent balance sheet) of the Company or such Restricted Subsidiary (other than contingent liabilities and liabilities that are by their terms subordinated to the Notes or any guarantee thereof) that are assumed by the transferee of any such assets pursuant to a customary novation agreement that releases the Company or such Restricted Subsidiary from further liability, (b) any securities, notes or other obligations received by the Company or such Restricted Subsidiary from such transferee that are immediately converted by the Company or such Restricted Subsidiary into cash (to the extent of the cash received) and (c) escrowed cash that the Company reasonably believes will be released from escrow within 365 days from the date of consummation of such Asset Sale, in each case shall be deemed to be cash for purposes of this provision. Notwithstanding the immediately preceding paragraph, the Company and its Restricted Subsidiaries will be permitted or to consummate an Asset Sale without complying make capital expenditures in connection with such paragraph if (i) the Company or the applicable Restricted Subsidiary, as the case may be, receives consideration at the time improvement of such Asset Sale at least equal to the fair market value capital assets of the assets or other property sold, issued or otherwise disposed of (as evidenced by a resolution of the Company's Board of Directors set forth in an Officers' Certificate delivered to the Trustee) and (ii) at least 75% of the consideration for such Asset Sale constitutes a controlling interest in a Permitted Business, long-term assets used or useful in a Permitted Business and/or cash or Cash Equivalents; provided that any cash or Cash Equivalents received by the Company or any of its Restricted Subsidiaries in connection with (it being expressly agreed that any Net Asset Sale permitted Proceeds not so invested shall be immediately offered to be consummated under this paragraph shall constitute Net Proceeds subject to the provisions of the next succeeding paragraph. Within 365 days of the receipt of any Net Proceeds from an Asset Sale, the Company may apply such Net Proceeds, at its option, (i) to repay Senior Debt under a Credit Facility (and to correspondingly reduce commitments with respect thereto in the case of revolving borrowings) or (ii) to the acquisition of a controlling interest in a Permitted Business, the making of a capital expenditure or the acquisition of other long-term assets, in each case, used or useful in a Permitted Business. Pending the final application of any such Net Proceeds, the Company may temporarily reduce Senior Debt or otherwise invest such Net Proceeds in any manner that is not prohibited by this Indenture. Any Net Proceeds from Asset Sales that are not applied or invested as provided in the first sentence of this paragraph shall be deemed to constitute "Excess Proceeds." When the aggregate amount of Excess Proceeds exceeds $10.0 million, the Company shall be required to make an offer to all Holders of Notes and all holders of other pari passu Indebtedness containing provisions similar to those set forth in this Indenture with respect to offers to purchase or redeem Sections 2.14(b) and 2.14(d)); provided, further, pending any such other pari passu Indebtedness with the proceeds of sales of assets (an "investment at any time that Net Asset Sale Offer") to purchase Proceeds not so invested shall equal or exceed $5,000,000 in the maximum principal amount of Notes and such other pari passu Indebtedness that may be purchased out of the Excess Proceeds at an offer price in cash in aggregate, an amount equal to 100% all such Net Asset Sale Proceeds shall be deposited by Company, unless waived by Administrative Agent in its sole discretion, in a deposit account maintained at Administrative Agent as part of the principal amount thereofCollateral (it being understood that, plus accrued (x) so long as no Default or Event of Default shall have occurred and unpaid interest and Liquidated Damagesbe continuing, if any, thereon Administrative Agent shall release or consent to the date release of purchasesuch funds to Company upon delivery to Administrative Agent of a certificate of an officer of Company certifying that such funds shall, upon release of such funds, be applied in accordance with this Section 2.13(a) and (y) to the procedures extent such amounts are not applied in accordance with, and at the times required by, this Section 2.13(a), all such funds then held by Administrative Agent shall be immediately applied by Administrative Agent, or immediately paid over to Administrative Agent to be applied, as set forth in this Indenture and in such other pari passu Indebtedness. To Section 2.14(b)); provided, further, that notwithstanding the extent that foregoing, the aggregate amount of Notes and such other pari passu Indebtedness tendered Net Asset Sale Proceeds from any sale leaseback transaction permitted pursuant to an Asset Sale Offer is less than the Excess Proceeds, the Company may use any remaining Excess Proceeds for any purpose not otherwise prohibited by this Indenture. If the aggregate principal amount of Notes and such other pari passu Indebtedness surrendered by Holders thereof exceeds the amount of Excess Proceeds, the Trustee Section 6.1(n) hereof shall select the Notes and such other pari passu Indebtedness be offered to be purchased on a pro rata basis. Upon completion of an Asset Sale Offer, the amount of Excess Proceeds shall be reset at zeroapplied as set forth in Sections 2.15(b) and 2.14(d).
Appears in 3 contracts
Sources: Credit Agreement (Douglas Dynamics, Inc), Credit Agreement (Douglas Dynamics, Inc), Credit Agreement (Douglas Dynamics, Inc)
Asset Sales. The Company Borrower shall not, and shall not permit any of its Restricted Subsidiaries to, consummate sell, convey, transfer, lease or otherwise dispose of any of their respective assets or any interest therein (including the sale or factoring at maturity of any accounts) to any Person, or permit or suffer any other Person to acquire any interest in any of their respective assets or, in the case of any Subsidiary, issue or sell any shares of such Subsidiary’s Stock or Stock Equivalent (any such disposition being an “Asset Sale unless Sale”) except for the following:
(ia) the Company sale or such Restricted Subsidiarydisposition of inventory in the ordinary course of business;
(b) transfers resulting from any taking or condemnation of any property of the Borrower or any of its Subsidiaries (or, as long as no Default exists or would result therefrom, deed in lieu thereof);
(c) as long as no Default exists or would result therefrom, the case may besale or disposition of equipment that the Borrower reasonably determines is no longer useful in its or its Subsidiaries’ business, receives consideration has become obsolete, damaged or surplus or is replaced in the ordinary course of business;
(d) as long as no Default exists or would result therefrom, the sale or disposition of assets of any Subsidiary that is not a Wholly-Owned Subsidiary that, both at the time of such Asset Sale at least equal to the fair market value (evidenced by a resolution sale and as of the Board of Directors set forth Closing Date, do not constitute, in an Officers' Certificate delivered to the Trustee) aggregate, all or a material part of the assets of such Subsidiary;
(e) as long as no Default exists or Equity Interests issued would result therefrom, the lease or sold sublease of Real Property not constituting a sale and leaseback, to the extent not otherwise prohibited by this Agreement or otherwise disposed the Mortgages;
(f) as long as no Default exists or would result therefrom, non-exclusive assignments and licenses of intellectual property of the Borrower and its Subsidiaries in the ordinary course of business;
(g) as long as no Default exists or would result therefrom, discounts, adjustments, settlements and compromises of Accounts and contract claims in the ordinary course of business;
(h) any Asset Sale (i) to the Borrower or any Guarantor or (ii) by any Subsidiary that is not a Loan Party to another Subsidiary that is not a Loan Party;
(i) as long as no Default exists or would result therefrom, any other Asset Sale for Fair Market Value, at least 75% of the consideration therefor received by the Company or such Restricted Subsidiary which is payable in the form of cash or Cash EquivalentsEquivalents upon such sale; provided provided, however, that the amount of (a) any liabilities (as shown on the Company's or such Restricted Subsidiary's most recent balance sheet) of the Company or such Restricted Subsidiary (other than contingent liabilities and liabilities that are by their terms subordinated with respect to the Notes or any guarantee thereof) that are assumed by the transferee of any such Asset Sale in accordance with this clause (i), the aggregate consideration received for the sale of all assets pursuant to a customary novation agreement that releases the Company or such Restricted Subsidiary from further liabilitysold in accordance with this clause (i) during any Fiscal Year, (b) any securities, notes or other obligations received by the Company or such Restricted Subsidiary from such transferee that are immediately converted by the Company or such Restricted Subsidiary into cash (to the extent of the cash received) and (c) escrowed cash that the Company reasonably believes will be released from escrow within 365 days from the date of consummation of including such Asset Sale, in each case shall be deemed to be cash for purposes of this provision. Notwithstanding the immediately preceding paragraph, the Company and its Restricted Subsidiaries will be permitted to consummate an Asset Sale without complying with such paragraph if (i) the Company or the applicable Restricted Subsidiary, as the case may be, receives consideration at the time of such Asset Sale at least equal to the fair market value of the assets or other property sold, issued or otherwise disposed of (as evidenced by a resolution of the Company's Board of Directors set forth in an Officers' Certificate delivered to the Trustee) and (ii) at least 75% of the consideration for such Asset Sale constitutes a controlling interest in a Permitted Business, long-term assets used or useful in a Permitted Business and/or cash or Cash Equivalents; provided that any cash or Cash Equivalents received by the Company or any of its Restricted Subsidiaries in connection with any Asset Sale permitted to be consummated under this paragraph shall constitute Net Proceeds subject to the provisions of the next succeeding paragraph. Within 365 days of the receipt of any Net Proceeds from an Asset Sale, the Company may apply such Net Proceeds, at its option, (i) to repay Senior Debt under a Credit Facility (and to correspondingly reduce commitments with respect thereto not exceed $20,000,000 in the case aggregate;
(j) any single transaction or series of revolving borrowingsrelated transactions so long as neither such single transaction nor such series of related transactions involves assets having a Fair Market Value of more than $1,000,000; and
(k) or (ii) to the acquisition of a controlling interest in a Permitted Business, the making of a capital expenditure or the acquisition of other long-term assets, in each case, used or useful in a Permitted Business. Pending the final application of any such Net Proceeds, the Company may temporarily reduce Senior Debt or otherwise invest such Net Proceeds in any manner that is not prohibited by this Indenture. Any Net Proceeds from Asset Sales that are not applied or invested as provided in the first sentence of this paragraph shall be deemed to constitute "Excess Proceedspermitted by Section 7.13." When the aggregate amount of Excess Proceeds exceeds $10.0 million, the Company shall be required to make an offer to all Holders of Notes and all holders of other pari passu Indebtedness containing provisions similar to those set forth in this Indenture with respect to offers to purchase or redeem such other pari passu Indebtedness with the proceeds of sales of assets (an "Asset Sale Offer") to purchase the maximum principal amount of Notes and such other pari passu Indebtedness that may be purchased out of the Excess Proceeds at an offer price in cash in an amount equal to 100% of the principal amount thereof, plus accrued and unpaid interest and Liquidated Damages, if any, thereon to the date of purchase, in accordance with the procedures set forth in this Indenture and in such other pari passu Indebtedness. To the extent that the aggregate amount of Notes and such other pari passu Indebtedness tendered pursuant to an Asset Sale Offer is less than the Excess Proceeds, the Company may use any remaining Excess Proceeds for any purpose not otherwise prohibited by this Indenture. If the aggregate principal amount of Notes and such other pari passu Indebtedness surrendered by Holders thereof exceeds the amount of Excess Proceeds, the Trustee shall select the Notes and such other pari passu Indebtedness to be purchased on a pro rata basis. Upon completion of an Asset Sale Offer, the amount of Excess Proceeds shall be reset at zero.
Appears in 3 contracts
Sources: Credit Agreement (Babcock & Wilcox Co), Credit Agreement (Babcock & Wilcox Co), Credit Agreement (McDermott International Inc)
Asset Sales. The Company shall not, and shall not permit any of its Restricted Subsidiaries to, consummate an Asset Sale unless (i) No later than the Company or such Restricted Subsidiary, as the case may be, receives consideration at the time of such Asset Sale at least equal to the fair market value (evidenced by a resolution of the Board of Directors set forth in an Officers' Certificate delivered to the Trustee) of the assets or Equity Interests issued or sold or otherwise disposed of and (ii) at least 75% of the consideration therefor received by the Company or such Restricted Subsidiary is in the form of cash or Cash Equivalents; provided that the amount of (a) any liabilities (as shown on the Company's or such Restricted Subsidiary's most recent balance sheet) of the Company or such Restricted Subsidiary (other than contingent liabilities and liabilities that are by their terms subordinated to the Notes or any guarantee thereof) that are assumed by the transferee of any such assets pursuant to a customary novation agreement that releases the Company or such Restricted Subsidiary from further liability, (b) any securities, notes or other obligations received by the Company or such Restricted Subsidiary from such transferee that are immediately converted by the Company or such Restricted Subsidiary into cash (to the extent of the cash received) and (c) escrowed cash that the Company reasonably believes will be released from escrow within 365 days from first Business Day following the date of consummation of such Asset Sale, in each case shall be deemed to be cash for purposes of this provision. Notwithstanding the immediately preceding paragraph, the Company and its Restricted Subsidiaries will be permitted to consummate an Asset Sale without complying with such paragraph if (i) the Company or the applicable Restricted Subsidiary, as the case may be, receives consideration at the time of such Asset Sale at least equal to the fair market value of the assets or other property sold, issued or otherwise disposed of (as evidenced receipt by a resolution of the Company's Board of Directors set forth in an Officers' Certificate delivered to the Trustee) and (ii) at least 75% of the consideration for such Asset Sale constitutes a controlling interest in a Permitted Business, long-term assets used or useful in a Permitted Business and/or cash or Cash Equivalents; provided that any cash or Cash Equivalents received by the Company Holdings or any of its Restricted Subsidiaries in connection with any Asset Sale permitted to be consummated under this paragraph shall constitute Net Proceeds subject to the provisions of the next succeeding paragraph. Within 365 days of the receipt of any Net Proceeds from Asset Sale Proceeds, Company shall prepay the Loans and/or the Revolving Commitments shall be permanently reduced as set forth in Section 2.14(b) in an Asset Sale, the Company may apply aggregate amount equal to such Net Asset Sale Proceeds, at its option; PROVIDED, (i) to repay Senior Debt under a Credit Facility (so long as no Default or Event of Default shall have occurred and to correspondingly reduce commitments with respect thereto in the case of revolving borrowings) or be continuing, and (ii) to the acquisition extent that aggregate Net Asset Sale Proceeds from the Closing Date through the applicable date of determination do not exceed $10,000,000, Company shall have the option, directly or through one or more of its Subsidiaries, to invest Net Asset Sale Proceeds within two hundred seventy (270) days of receipt thereof in long term productive assets of the general type used in the business of Company and its Subsidiaries; PROVIDED FURTHER, pending any such investment all such Net Asset Sale Proceeds shall be applied to prepay Revolving Loans to the extent outstanding (without a controlling interest reduction in a Permitted BusinessRevolving Commitments). Notwithstanding any of the foregoing to the contrary, upon receipt by Company of Net Asset Sale Proceeds pursuant to the making sale of a capital expenditure assets permitted under Section 6.9(d), Company may invest the first $1,000,000 of such proceeds directly or the acquisition through one or more of other its Subsidiaries in long-term assetsproductive assets of the general type used in the business of Company and its Subsidiaries, in each case, used or useful in a Permitted Business. Pending and the final application remainder of any such Net Proceeds, the Company may temporarily reduce Senior Debt or otherwise invest such Net Asset Sale Proceeds in any manner that is not prohibited by this Indenture. Any Net Proceeds from Asset Sales that are not applied or invested as provided in the first sentence of this paragraph shall be deemed to constitute "Excess Proceeds." When the aggregate amount of Excess Proceeds exceeds $10.0 million, the Company shall be required to make an offer to all Holders of Notes and all holders of other pari passu Indebtedness containing provisions similar to those set forth in this Indenture with respect to offers to purchase or redeem such other pari passu Indebtedness with the proceeds of sales of assets (an "Asset Sale Offer") to purchase the maximum principal amount of Notes and such other pari passu Indebtedness that may be purchased out of the Excess Proceeds at an offer price in cash in an amount equal to 100% of the principal amount thereof, plus accrued and unpaid interest and Liquidated Damages, if any, thereon to the date of purchase, applied in accordance with the procedures provisions set forth in this Indenture and in such other pari passu Indebtedness. To the extent that the aggregate amount of Notes and such other pari passu Indebtedness tendered pursuant to an Asset Sale Offer is less than the Excess Proceeds, the Company may use any remaining Excess Proceeds for any purpose not otherwise prohibited by this Indenture. If the aggregate principal amount of Notes and such other pari passu Indebtedness surrendered by Holders thereof exceeds the amount of Excess Proceeds, the Trustee shall select the Notes and such other pari passu Indebtedness to be purchased on a pro rata basis. Upon completion of an Asset Sale Offer, the amount of Excess Proceeds shall be reset at zeroabove.
Appears in 3 contracts
Sources: Credit and Guaranty Agreement (Vca Antech Inc), Credit and Guaranty Agreement (Veterinary Centers of America Inc), Credit and Guaranty Agreement (Vca Antech Inc)
Asset Sales. The Neither the Company shall not, and shall not permit nor any of its Restricted Subsidiaries toshall engage in any Asset Sale, consummate an Asset Sale unless unless:
(i) the Company or such Restricted Subsidiary, as the case may be, receives consideration at the time of such Asset Sale at least equal to the fair market value Fair Market Value (evidenced by a resolution of the Board of Directors set forth in an Officers' Certificate delivered to the Trustee) of the assets or Equity Interests issued or sold or otherwise disposed of and of; and
(ii) at least 7520% of the consideration therefor received by the Company or such Restricted Subsidiary is in the form of cash Cash or Cash Equivalents; provided provided, however, that if the Fair Market Value of the assets sold or otherwise disposed of exceeds $10,000,000, at least 75% of the consideration therefor received by the Company or such Restricted Subsidiaries is in the form of Cash or Cash Equivalents; provided, further, however, that the amount of (a) any liabilities (as shown on the Company's or such Restricted Subsidiary's most recent balance sheetsheet or in the notes thereto) of the Company or such Restricted Subsidiary (other than contingent liabilities and liabilities that are by their terms subordinated in right of payment to the Notes or any guarantee thereofNotes) that are assumed by the transferee of any such assets pursuant to a customary novation agreement that releases the Company or such Restricted Subsidiary from further liability, and (b) any securities, notes or other obligations received by the Company or such Restricted Subsidiary from such transferee that are immediately converted within 60 days by the Company or such Restricted Subsidiary into cash (to the extent of the cash so received) and (c) escrowed cash that the Company reasonably believes will be released from escrow within 365 days from the date of consummation of such Asset Sale), in each case shall be deemed to be cash for purposes of this provision. Notwithstanding the immediately preceding paragraph, the Company and its Restricted Subsidiaries will be permitted to consummate an Asset Sale without complying with such paragraph if (i) the Company or the applicable Restricted Subsidiary, as the case may be, receives consideration at the time of such Asset Sale at least equal to the fair market value of the assets or other property sold, issued or otherwise disposed of (as evidenced by a resolution of the Company's Board of Directors set forth in an Officers' Certificate delivered to the Trustee) and clause (ii) at least 75% of the consideration for such Asset Sale constitutes a controlling interest in a Permitted Business, long-term assets used or useful in a Permitted Business and/or cash or Cash Equivalents; provided that any cash or Cash Equivalents received by the Company or any of its Restricted Subsidiaries in connection with any Asset Sale permitted to be consummated under this paragraph shall constitute Net Proceeds subject to the provisions of the next succeeding paragraphabove. Within 365 180 days of after the receipt of any the Net Proceeds from an Asset Sale, the Company may shall apply the Net Proceeds from such Net ProceedsAsset Sale first, at its option, (i) to repay Senior Debt under a Credit Facility (or reduce the Term Loan, and to correspondingly the extent such Indebtedness is paid in full, to repay the Revolver (but shall not permanently reduce commitments with respect thereto in the case of revolving borrowings) or (ii) to the acquisition of a controlling interest in a Permitted Business, the making of a capital expenditure or the acquisition of other long-term assets, in each case, used or useful in a Permitted Businesscommitment thereunder). Pending the final application of any such Net Proceeds, the Company may temporarily reduce Senior Debt or otherwise invest such Net Proceeds in any manner that is not prohibited by this Indenture. Any Net Proceeds from the Asset Sales Sale that are not applied or invested as provided in the first sentence of this paragraph shall will be deemed to constitute "Excess Proceeds." When the aggregate cumulative amount of Excess Proceeds exceeds $10.0 million5,000,000, the Company shall be required to make an offer to all Holders of Notes and all holders of other pari passu Indebtedness containing provisions similar to those set forth in this Indenture with respect to offers to purchase or redeem such other pari passu Indebtedness with the proceeds of sales of assets (an "Asset Sale Offer") to purchase the maximum principal amount of Notes and such other pari passu Indebtedness that may be purchased out of with the Excess Proceeds Proceeds, at an offer price in cash in an amount equal to 100% of the principal amount thereof, thereof plus accrued and unpaid interest and Liquidated Damages, if any, thereon to the date of purchase, in accordance with the procedures set forth in this Indenture and in such other pari passu IndebtednessSection 4.20 (an "Asset Sale Offer"). To the extent that the aggregate principal amount of Notes and such other pari passu Indebtedness tendered pursuant to an Asset Sale Offer is less than the Excess Proceeds, the Company may use such deficiency (i) for general corporate purposes in any remaining Excess Proceeds for any purpose manner not otherwise prohibited by this IndentureIndenture (including the repayment, redemption or repurchase of Senior Subordinated Notes to the extent permitted under Section 4.12(b)(iv) hereof) or (ii) within 60 days of the completion of an Asset Sale Offer, to purchase, retire, redeem or otherwise acquire subordinated Obligations permitted to be incurred pursuant to this Indenture (including the Senior Subordinated Notes) and only to the extent necessary to comply with the covenants and other provisions of such subordinated Obligations. If the aggregate principal amount of Notes and such other pari passu Indebtedness surrendered by Holders thereof exceeds the amount of Excess Proceeds, the Trustee shall select the Notes and such other pari passu Indebtedness to be purchased on a pro rata basis. Upon completion of an Asset Sale Offersuch offer to purchase, the amount of Excess Proceeds shall be reset at zero. In the event that the Company shall be required to commence an Asset Sale Offer to all Holders to purchase Notes pursuant to this Section 4.20, it shall follow the procedures specified below. The Asset Sale Offer shall be commenced within 30 days following the first date on which the Company has cumulative Excess Proceeds of at least $5,000,000 and remain open for a period of at least 30 and not more than 40 days, except to the extent that a longer period is required by applicable law (the "Repurchase Offer Period"). No later than five Business Days after the termination of the Offer Period (the "Repurchase Date"), the Company shall purchase the principal amount of Notes required to be purchased pursuant to this Section 4.20 hereof (the "Repurchase Price") or, if Notes having an aggregate principal amount less than the amount of Excess Proceeds subject to such Asset Sale Offer have been tendered, all Notes tendered in response to the Asset Sale Offer. Payment for any Notes so purchased shall be made in the same manner as interest payments are made. If the Repurchase Date is on or after an interest record date and on or before the related interest payment date, any accrued and unpaid interest shall be paid to the Person in whose name a Note is registered at the close of business on such record date, and no additional interest shall be payable to Holders who tender Notes pursuant to the Asset Sale Offer. Upon the commencement of an Asset Sale Offer, the Company shall send, by first class mail, a notice to the Trustee or to 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 4.20 and the length of time the Asset Sale Offer shall remain open;
(b) the Asset Sale Offer, the Repurchase Price and the Repurchase Date;
(c) that any Note not tendered or accepted for payment shall continue to accrue interest;
(d) that, unless the Company defaults in making such payment, any Note accepted for payment pursuant to the Asset Sale Offer shall cease to accrue interest after the Repurchase Date;
(e) that Holders electing to have a Note purchased pursuant to a Asset Sale Offer may only elect to have all of such Note purchased and may not elect to have only a portion of such Note purchased;
(f) that Holders electing to have a Note purchased pursuant to any Asset Sale Offer shall be required to surrender the Note, with the form entitled "Option of Holder to Elect Purchase" on the reverse of the Note completed, or transfer by book-entry transfer, to the Company, a depositary, if appointed by the Company, or a Paying Agent at the address specified in the notice at least three days before the Asset Sale Purchase Date;
(g) that Holders shall be entitled to withdraw their election if the Company, the Depositary or the Paying Agent, as the case may be, receives, not later than the expiration of the Repurchase Offer Period, a telegram, telex, facsimile transmission or letter setting forth the name of the Holder, the principal amount of the Note the Holder delivered for purchase and a statement that such Holder is withdrawing his election to have such Note purchased;
(h) that, if the aggregate principal amount of Notes surrendered by Holders exceeds the Repurchase Price, the Trustee shall select the Notes to be purchased on a pro rata basis (with such adjustments as may be deemed appropriate by the Trustee so that only Notes in denominations of $1,000, or integral multiples thereof, shall be purchased); and
(i) that Holders whose Notes were purchased only in part shall be issued new Notes equal in principal amount to the unpurchased portion of the Notes surrendered (or transferred by book-entry transfer). 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 Repurchase Date) mail or deliver to each tendering Holder an amount equal to the purchase price of the Notes tendered by such Holder and accepted by the Company for purchase, and the Company shall promptly issue a new Note, and the Trustee, upon written order 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 the Note surrendered. Any Note not so accepted shall be promptly mailed or delivered by the Company to the Holder thereof. The Company shall publicly announce the results of the Asset Sale Offer on the Repurchase Date. The Company shall comply with the requirements of Rule 14e-1 under the Exchange Act and any other securities laws, rules and regulations thereunder to the extent such laws, rules and regulations are applicable in connection with the repurchase of Notes pursuant to Asset Sale Offer.
Appears in 3 contracts
Sources: Indenture (Cast Alloys Inc), Indenture (Neenah Foundry Co), Indenture (Neenah Foundry Co)
Asset Sales. (a) The Company shall not, and shall not permit any of its Restricted Subsidiaries Subsidiary to, consummate consummate, directly or indirectly, an Asset Sale unless Sale, unless:
(i1) the Company or such Restricted Subsidiary, as the case may be, receives consideration at the time of such Asset Sale at least equal to the fair market value (evidenced by a resolution as determined at the time of the Board of Directors set forth in an Officers' Certificate delivered contractually agreeing to the Trusteesuch sale) of the assets or Equity Interests issued or sold or otherwise disposed of and of; and
(ii2) at least 75% of the consideration therefor received by the Company or such Restricted Subsidiary is except in the form case of cash or Cash Equivalents; provided that the amount of (a) any liabilities (as shown on the Company's or such Restricted Subsidiary's most recent balance sheet) of the Company or such Restricted Subsidiary (other than contingent liabilities and liabilities that are by their terms subordinated to the Notes or any guarantee thereof) that are assumed by the transferee of any such assets pursuant to a customary novation agreement that releases the Company or such Restricted Subsidiary from further liabilityPermitted Asset Swap, (b) any securities, notes or other obligations received by the Company or such Restricted Subsidiary from such transferee that are immediately converted by the Company or such Restricted Subsidiary into cash (to the extent of the cash received) and (c) escrowed cash that the Company reasonably believes will be released from escrow within 365 days from the date of consummation of such Asset Sale, in each case shall be deemed to be cash for purposes of this provision. Notwithstanding the immediately preceding paragraph, the Company and its Restricted Subsidiaries will be permitted to consummate an Asset Sale without complying with such paragraph if (i) the Company or the applicable Restricted Subsidiary, as the case may be, receives consideration at the time of such Asset Sale at least equal to the fair market value of the assets or other property sold, issued or otherwise disposed of (as evidenced by a resolution of the Company's Board of Directors set forth in an Officers' Certificate delivered to the Trustee) and (ii) at least 75% of the consideration for such Asset Sale constitutes Sale, together with all other Asset Sales since the Issue Date (on a controlling interest in a Permitted Business, long-term assets used or useful in a Permitted Business and/or cash or Cash Equivalents; provided that any cash or Cash Equivalents cumulative basis) received by the Company or any and the Restricted Subsidiaries, is in the form of its Restricted Subsidiaries in connection with any Asset Sale permitted to be consummated under this paragraph shall constitute Net Proceeds subject to the provisions of the next succeeding paragraph. Cash Equivalents.
(b) Within 365 450 days of after the receipt of any Net Proceeds from an of any Asset Sale, the Company or such Restricted Subsidiary, at its option, may apply the Net Proceeds from such Net ProceedsAsset Sale,
(1) to permanently reduce:
(a) Obligations under the Senior Credit Agreement, and to correspondingly reduce commitments with respect thereto;
(b) Obligations under Senior Indebtedness of the Company or a Guarantor that is secured by a Lien, which Lien is permitted by this Indenture, and to correspondingly reduce commitments with respect thereto;
(c) Obligations under the Notes or any other Senior Indebtedness (and, in the case of other Senior Indebtedness, to correspondingly reduce commitments with respect thereto, if applicable) or make an offer to purchase the Notes or such other Senior Indebtedness; provided that, if the Company or any Restricted Subsidiary shall so repay or make an offer to purchase any Senior Indebtedness other than the Notes, the Company shall either (A) reduce Obligations under the Notes on a pro rata basis by, at its option, (i) to repay Senior Debt redeeming the Notes as provided under a Credit Facility (and to correspondingly reduce commitments with respect thereto in the case of revolving borrowings) Section 3.07, or (ii) purchasing the Notes through open-market purchases or in privately negotiated transactions at market prices (which may be below par), or (B) make an offer (in accordance with the procedures set forth below for an Asset Sale Offer) to all Holders to purchase their Notes, on a ratable basis with such other Senior Indebtedness for no less than 100% of the principal amount thereof, plus the amount of accrued but unpaid interest, if any, thereon up to the principal amount of Notes to be repurchased; or
(d) Indebtedness of a Restricted Subsidiary that is not 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 a controlling interest in Restricted Subsidiary, as the case may be, owning an amount of the Capital Stock of such business such that it constitutes or continues to constitute a Permitted BusinessRestricted Subsidiary, the making of a (b) capital expenditure expenditures or the acquisition (c) acquisitions of other long-term assetsassets that, in each caseof (a), (b) and (c), are either (i) used or useful in a Permitted Business. Pending Similar Business or (ii) replace in whole or in part the final businesses or assets that are the subject of such Asset Sale; provided that, in the case of clause (2) in this Section 4.10(b), a binding commitment shall be treated as a permitted application of the Net Proceeds from the date of such commitment so long as the Company or Restricted Subsidiary enters into such commitment with the good faith expectation that such Net Proceeds shall be applied to satisfy such commitment within the later of such 450th day and 180 days of such commitment (an “Acceptable Commitment”); and, in the event any Acceptable Commitment is later cancelled or terminated for any reason before the Net Proceeds are applied in connection therewith, then such Net Proceeds shall constitute Excess Proceeds unless the Company or Restricted Subsidiary enters into another Acceptable Commitment (a “Second Commitment”) within 180 days of such cancellation or termination (or, if later, 450 days after receipt of such Net Proceeds, the Company may temporarily reduce Senior Debt ); provided further that if any Second Commitment is later cancelled or otherwise invest terminated for any reason before such Net Proceeds in any manner that is not prohibited by this Indenture. are applied, then such Net Proceeds shall constitute Excess Proceeds.
(c) Any Net Proceeds from an Asset Sales Sale (other than any amounts excluded from this Section 4.10 pursuant to Section 4.10(g)) that are not invested or applied or invested as provided and within the time period set forth in the first sentence of this paragraph Section 4.10(b) shall be deemed to constitute "“Excess Proceeds." ” When the aggregate amount of Excess Proceeds exceeds $10.0 million75,000,000 (the “Excess Proceeds Threshold”), the Company shall be required to make an offer to all Holders Holders, and, if and to the extent required by the terms of any Indebtedness that is pari passu with the Notes and all (“Pari Passu Indebtedness”), to the holders of other pari passu such Pari Passu Indebtedness containing provisions similar to those set forth in this Indenture with respect to offers to purchase or redeem such other pari passu Indebtedness with the proceeds of sales of assets (an "“Asset Sale Offer") ”), to purchase the maximum aggregate principal amount of the Notes and such other pari passu Pari Passu Indebtedness that is equal to $2,000 or an integral multiple of $1,000 in excess thereof that may be purchased out of the Excess Proceeds at an offer price in cash in an amount equal to 100% of the principal amount thereof (or accreted value thereof, if less), plus accrued and unpaid interest, if any, to, but excluding, the date fixed for the closing of such offer, and in the case of any Pari Passu Indebtedness, at the offer price required by the terms thereof but not to exceed 100.0% of the principal amount thereof, plus accrued and unpaid interest and Liquidated Damagesinterest, if any, thereon to the date of purchase, in accordance with the procedures set forth in this Indenture and in the agreement governing such other pari passu Pari Passu Indebtedness. The Company shall commence an Asset Sale Offer with respect to Excess Proceeds within fifteen (15) Business Days after the date that Excess Proceeds exceed the Excess Proceeds Threshold by sending the notice required pursuant to the terms of this Indenture, with a copy to the Trustee or otherwise in accordance with the procedures of DTC. The Company may satisfy the foregoing obligation with respect to such Net Proceeds from an Asset Sale by making an Asset Sale Offer with respect to all or a portion of the available Net Proceeds (the “Advance Portion”) in advance of being required to do so by this Indenture (the “Advance Offer”).
(d) To the extent that the aggregate principal amount (or accreted value, as applicable) of Notes and such other pari passu Pari Passu Indebtedness tendered pursuant to an Asset Sale Offer is less than the Excess ProceedsProceeds (or, in the case of an Advance Offer, the Advance Portion), the Company may use any remaining Excess Proceeds (or, in the case of an Advance Offer, the Advance Portion) for such amount offered in any purpose manner not otherwise prohibited by this IndentureIndenture and the obligations of the Company and its Restricted Subsidiaries described in this Section 4.10 shall be deemed to have been satisfied to the extent of any such Asset Sale Offer and Advance Offer so made regardless of the amount tendered or surrendered pursuant thereto. If the aggregate principal amount (or accreted value, as applicable) of Notes and such other pari passu or the Pari Passu Indebtedness surrendered by such Holders and holders thereof exceeds the amount of Excess ProceedsProceeds (or, in the case of an Advance Offer, the Trustee Advance Portion), the Company shall select the Notes and such other pari passu Pari Passu Indebtedness to be purchased on a pro rata basisbasis based on the accreted value or principal amount of the Notes or such Pari Passu Indebtedness tendered. Upon completion of an any such Asset Sale Offer, the amount of Excess Proceeds shall be reset at zero, but in the case of an Advance Offer, the amount of Net Proceeds the Company is offering to apply in such Advance Offer shall be excluded in subsequent calculations of Excess Proceeds. Additionally, upon consummation or expiration of any Asset Sale Offer or Advance Offer, any remaining Net Proceeds shall not be deemed Excess Proceeds and the Company and its Restricted Subsidiaries may use such Net Proceeds for any purpose not otherwise prohibited under this Indenture.
(e) Pending the final application of any Net Proceeds pursuant to this Section 4.10, the holder of such Net Proceeds may apply such Net Proceeds temporarily to reduce Indebtedness outstanding under a revolving credit facility (including under the Senior Credit Agreement) or otherwise invest such Net Proceeds in any manner not prohibited by this Indenture.
(f) For purposes of this Section 4.10, the following are deemed to be Cash Equivalents:
(1) any liabilities (as shown on the Company’s, or such Restricted Subsidiary’s, most recent balance sheet or in the notes thereto, or if incurred or accrued subsequent to the date of such balance sheet, such liabilities that would have been shown on the Company’s or such Restricted Subsidiary’s balance sheet or in the footnotes thereto if such incurrence or accrual had taken place on or prior to the date of such balance sheet, as determined in good faith by the Company) of the Company or any Restricted Subsidiary, other than liabilities that are by their terms subordinated to the Notes, that are assumed by the transferee of any such assets (or are otherwise extinguished in connection with the transactions relating to such Asset Sale) and for which the Company and all Restricted Subsidiaries have been validly released by all creditors in writing;
(2) any securities, notes or other obligations received by the Company or such Restricted Subsidiary from such transferee that are converted by the Company or such Restricted Subsidiary into Cash Equivalents (to the extent of the Cash Equivalents received) within 180 days following the closing of such Asset Sale; and
(3) any Designated Non-cash Consideration received by the Company or such Restricted Subsidiary in such Asset Sale having an aggregate fair market value, taken together with all other Designated Non-cash Consideration received pursuant to this clause (3) that is at that time outstanding, not to exceed the greater of (x) $100,000,000 and (y) 18.0% of Consolidated EBITDA at the time of the receipt of such Designated Non-cash Consideration, with the fair market value of each item of Designated Non-cash Consideration being measured at the time received and without giving effect to subsequent changes in value.
(g) Notwithstanding any other provisions of this Section 4.10, (i) to the extent that any or all of the Net Proceeds of any Asset Sale by a Foreign Subsidiary (a “Foreign Disposition”) is prohibited or delayed by applicable local law, an amount equal to the portion of such Net Proceeds so affected will not be required to be applied in compliance with this Section 4.10, and such amounts may be retained by the applicable Foreign Subsidiary; provided that if at any time within one year following the date on which the respective payment would otherwise have been required, such repatriation of any of such affected Net Proceeds is permitted under the applicable local law, an amount equal to such amount of Net Proceeds so permitted to be repatriated will be promptly applied (net of any taxes, costs or expenses that would be payable or reserved against if such amounts were actually repatriated whether or not they are repatriated) in compliance with this Section 4.10 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 would result in material adverse tax consequences (which, for the avoidance of doubt, includes, but is not limited to, any material tax liability as a result of a deemed dividend pursuant to Section 956 of the Code or a withholding tax) to the Company, any of its Subsidiaries or any Parent Entity, the Net Proceeds so affected may be retained by the applicable Foreign Subsidiary and an amount equal to such Net Proceeds will not be required to be applied in compliance with this Section 4.10. The non-application of any prepayment amounts as a consequence of the foregoing provisions will not, for the avoidance of doubt, constitute a Default or an Event of Default. For the avoidance of doubt, nothing in this Indenture shall be construed to require any Subsidiary to repatriate cash.
Appears in 3 contracts
Sources: Indenture (LPL Financial Holdings Inc.), Indenture (LPL Financial Holdings Inc.), Indenture (LPL Financial Holdings Inc.)
Asset Sales. (a) The Company shall not, and shall not permit any of its Restricted Subsidiaries Subsidiary to, directly or indirectly, consummate an any Asset Sale unless after the Issue Date, unless:
(i) the Company or such Restricted Subsidiary, as the case may be, receives consideration at the time of such Asset Sale at least equal to the fair market value (evidenced by a resolution Fair Market Value of the Board of Directors set forth in an Officers' Certificate delivered Property subject to the Trustee) of the assets or Equity Interests issued or sold or otherwise disposed of and such Asset Sale; and
(ii) at least 75% of such consideration consists of cash, Temporary Cash Investments or any stock or assets of the consideration therefor kind referred to in clause (1) or (3) of the definition of “Additional Assets”; provided, however, that for purposes of this clause (ii), (x) the assumption of Indebtedness of the Company or a Restricted Subsidiary which is not subordinated to the Notes or any Note Guarantee shall be deemed to be Temporary Cash Investments if the Company, such Restricted Subsidiary and all other Restricted Subsidiaries of the Company, to the extent any of the foregoing are liable with respect to such Indebtedness, are expressly released from all liability for such Indebtedness by the holder thereof in connection with such Asset Sale; (y) any securities or Notes received by the Company or such Restricted Subsidiary is in Subsidiary, as the form of cash or Cash Equivalents; provided that case may be, from the amount of (a) any liabilities (as shown on the Company's or such Restricted Subsidiary's most recent balance sheet) of the Company or such Restricted Subsidiary (other than contingent liabilities and liabilities that are by their terms subordinated to the Notes or any guarantee thereof) that are assumed by the transferee of any such assets pursuant to a customary novation agreement that releases the Company or such Restricted Subsidiary from further liability, (b) any securities, notes or other obligations received by the Company or such Restricted Subsidiary from such transferee that are immediately converted by the Company or such Restricted Subsidiary into cash (to the extent or Temporary Cash Investments within 180 days of the cash received) and (c) escrowed cash that the Company reasonably believes will be released from escrow within 365 days from the date of consummation of such Asset Sale, in each case Sale shall be deemed to be cash for purposes of this provision. Notwithstanding the immediately preceding paragraph, Temporary Cash Investments; and (z) the Company and its Restricted Subsidiaries will be permitted to consummate an Asset Sale without complying with such paragraph if (i) may receive consideration in the Company or the applicable Restricted Subsidiary, as the case may be, receives consideration at the time form 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 Company's Board of Directors set forth in an Officers' Certificate delivered to the Trustee) and (ii) at least 75securities exceeding 25% of the consideration for one or more Asset Sales so long as the Company and its Restricted Subsidiaries do not hold such securities having an aggregate Fair Market Value in excess of the greater of $250,000,000 and 5% of Consolidated Total Assets of the Company at any time outstanding.
(b) Within 360 days after the receipt of the Net Proceeds of an Asset Sale, an amount equal to 100% of the Net Proceeds from such Asset Sale constitutes may be applied by the Company or a controlling interest Restricted Subsidiary to do one or both of the following:
(i) repay, redeem or repurchase senior Indebtedness of the Company or any Guarantor, including Indebtedness under the Credit Facility or the Notes and, in the case of any such repayment under any revolving credit or other facility that permits future borrowings, effect a Permitted Business, long-term assets used corresponding reduction in the availability or useful commitments; or
(ii) reinvest in Additional Assets (including by means of an Investment in Additional Assets by a Permitted Business and/or cash or Cash Equivalents; provided that any cash or Cash Equivalents Restricted Subsidiary with Net Proceeds received by the Company or another Restricted Subsidiary); provided, however, that if the Company or any of its Restricted Subsidiaries in connection with any Asset Sale permitted Subsidiary contractually commits within such 360-day period to be consummated under this paragraph shall constitute apply such Net Proceeds subject to the provisions of the next succeeding paragraph. Within 365 within 180 days of such contractual commitment in accordance with the receipt above clause (i) and/or (ii), and such Net Proceeds are subsequently applied as contemplated in such contractual commitment, then the requirement for application of any Net Proceeds set forth in this clause (c) shall be considered satisfied.
(c) Any Net Proceeds from an Asset Sale, the Company may apply such Net Proceeds, at its option, (i) to repay Senior Debt under a Credit Facility (and to correspondingly reduce commitments with respect thereto in the case of revolving borrowings) or (ii) to the acquisition of a controlling interest in a Permitted Business, the making of a capital expenditure or the acquisition of other long-term assets, in each case, used or useful in a Permitted Business. Pending the final application of any such Net Proceeds, the Company may temporarily reduce Senior Debt or otherwise invest such Net Proceeds in any manner that is not prohibited by this Indenture. Any Net Proceeds from Asset Sales Sale that are not applied or invested as provided used in accordance with the first sentence of this preceding paragraph shall be deemed to constitute "excess proceeds (“Excess Proceeds." ”). When the aggregate amount of Excess Proceeds exceeds $10.0 million125,000,000, the Company shall be required to make an offer to purchase (the “Prepayment Offer”) from all Holders of Notes and all holders the Notes, and, at the election of the Company, the Holders of any other pari passu outstanding Pari Passu Indebtedness containing provisions similar to those set forth in this Indenture with respect to offers to purchase or redeem such other pari passu Indebtedness with the proceeds of sales of assets (comparable repurchase rights, an "Asset Sale Offer") to purchase the maximum aggregate principal amount of Notes and and, if applicable, such other pari passu Pari Passu Indebtedness that may be purchased out of equal to the Excess Proceeds Proceeds, at an offer a price in cash in an amount at least equal to 100% of the principal amount thereof, plus accrued and unpaid interest and Liquidated DamagesAdditional Interest, if any, thereon to the date of purchase, in accordance with the procedures set forth below in this Indenture and in such other pari passu Indebtednessclause (e). To the extent that the aggregate amount any portion of Notes and such other pari passu Indebtedness tendered pursuant to an Asset Sale Offer is less than the Excess ProceedsProceeds remains after compliance with the preceding sentence and provided that all Holders have been given the opportunity to tender their Notes for repurchase in accordance with this Indenture, the Company or such Restricted Subsidiary may use any such remaining Excess Proceeds amount for any purpose not otherwise prohibited by this Indenture. If general corporate purposes or the aggregate principal amount repurchase of Notes and such other pari passu Indebtedness surrendered by Holders thereof exceeds the amount subordinated in right of Excess Proceeds, the Trustee shall select payment to the Notes and such other pari passu Indebtedness or the Note Guarantee if required to be purchased on a pro rata basis. Upon completion of an Asset Sale Offer, repurchased pursuant to their respective terms and the amount of Excess Proceeds shall be reset at to zero. Pending application of Net Proceeds pursuant to clauses (c)(i) and (ii) above, such Net Proceeds will be invested in Temporary Cash Investments or used to temporarily repay Pari Passu Indebtedness that is revolving Indebtedness.
(d) Not more than 20 Business Days after the amount of Excess Proceeds exceeds $125,000,000, the Company shall send a prepayment offer notice to the Holders (with a copy to the Trustee), accompanied by such information regarding the Company and its Subsidiaries as the Company in good faith believes will enable such Holders to make an informed decision with respect to the Prepayment Offer. The prepayment offer notice will state, among other things:
(i) that the Company is offering to purchase Notes pursuant to the provisions of this Indenture:
(ii) that any Note (or any portion thereof) accepted for payment (and for which payment has been duly provided on the purchase date) pursuant to the Prepayment Offer shall cease to accrue interest after the purchase date;
(iii) the purchase price and purchase date, which shall be, subject to any contrary requirements of applicable law, no less than 15 days nor more than 60 days from the date the prepayment offer notice is mailed;
(iv) the aggregate principal amount of Notes (or portions thereof) to be purchased;
(v) a description of any conditions to such Prepayment Offer; and
(vi) a description of the procedure which Holders must follow in order to tender their Notes (or portions thereof) and the procedures that Holders must follow in order to withdraw an election to tender their Notes (or portions thereof) for payment.
(e) The Company will comply with the requirements of Rule 14e-1 under the Exchange Act, and any other securities laws and regulations thereunder to the extent such laws and regulations are applicable in connection with the purchase of Notes as a result of a Prepayment Offer. To the extent that the provisions of any securities laws or regulations conflict with the provisions relating to the Prepayment Offer, the Company will comply with the applicable securities laws and regulations and will not be deemed to have breached its obligations under this Indenture by virtue of such conflict.
Appears in 2 contracts
Sources: Indenture (Treasure Chest Casino LLC), Indenture (Boyd Gaming Corp)
Asset Sales. The Neither the Company shall not, and shall not permit nor any of its Restricted Subsidiaries toshall engage in any Asset Sale, consummate an Asset Sale unless unless:
(i) the Company or such Restricted Subsidiary, as the case may be, receives consideration at the time of such Asset Sale at least equal to the fair market value Fair Market Value (evidenced by a resolution of the Board of Directors set forth in an Officers' Certificate delivered to the Trustee) of the assets or Equity Interests issued or sold or otherwise disposed of and of; and
(ii) at least 7520% of the consideration therefor received by the Company or such Restricted Subsidiary is in the form of cash Cash or Cash Equivalents; provided provided, however, that if the Fair Market Value of the assets sold or otherwise disposed of exceeds $10,000,000, at least 75% of the consideration therefor received by the Company or such Restricted Subsidiaries is in the form of Cash or Cash Equivalents; provided, further, however, that the amount of (a) any liabilities (as shown on the Company's or such Restricted Subsidiary's most recent balance sheetsheet or in the notes thereto) of the Company or such Restricted Subsidiary (other than contingent liabilities and liabilities that are by their terms subordinated in right of payment to the Notes or any guarantee thereofNotes) that are assumed by the transferee of any such assets pursuant to a customary novation agreement that releases the Company or such Restricted Subsidiary from further liability, and (b) any securities, notes or other obligations received by the Company or such Restricted Subsidiary from such transferee that are immediately converted within 60 days by the Company or such Restricted Subsidiary into cash (to the extent of the cash so received) and (c) escrowed cash that the Company reasonably believes will be released from escrow within 365 days from the date of consummation of such Asset Sale), in each case shall be deemed to be cash for purposes of this provision. Notwithstanding the immediately preceding paragraph, the Company and its Restricted Subsidiaries will be permitted to consummate an Asset Sale without complying with such paragraph if (i) the Company or the applicable Restricted Subsidiary, as the case may be, receives consideration at the time of such Asset Sale at least equal to the fair market value of the assets or other property sold, issued or otherwise disposed of (as evidenced by a resolution of the Company's Board of Directors set forth in an Officers' Certificate delivered to the Trustee) and clause (ii) at least 75% of the consideration for such Asset Sale constitutes a controlling interest in a Permitted Business, long-term assets used or useful in a Permitted Business and/or cash or Cash Equivalents; provided that any cash or Cash Equivalents received by the Company or any of its Restricted Subsidiaries in connection with any Asset Sale permitted to be consummated under this paragraph shall constitute Net Proceeds subject to the provisions of the next succeeding paragraphabove. Within 365 180 days of after the receipt of any the Net Proceeds from an Asset Sale, the Company may shall apply the Net Proceeds from such Net ProceedsAsset Sale, at its optionto repay the Term Loan, and to the extent such Indebtedness is paid in full, to repay the Revolver, (i) to repay Senior Debt under a Credit Facility (and to correspondingly but shall not permanently reduce commitments with respect thereto in the case of revolving borrowings) or (ii) to the acquisition of a controlling interest in a Permitted Business, the making of a capital expenditure or the acquisition of other long-term assets, in each case, used or useful in a Permitted Businesscommitment thereunder). Pending the final application of any such Net Proceeds, the Company may temporarily reduce Senior Debt or otherwise invest such Net Proceeds in any manner that is not prohibited by this Indenture. Any Net Proceeds from the Asset Sales Sale that are not applied or invested as provided in the first sentence of this paragraph shall will be deemed to constitute "Excess Proceeds." When the aggregate cumulative amount of Excess Proceeds exceeds $10.0 million5,000,000, the Company shall be required to make an offer to all Holders of Notes and all holders of other pari passu Indebtedness containing provisions similar to those set forth in this Indenture with respect to offers to purchase or redeem such other pari passu Indebtedness with the proceeds of sales of assets (an "Asset Sale Offer") to purchase the maximum principal amount of Notes and such other pari passu Indebtedness that may be purchased out of with the Excess Proceeds Proceeds, at an offer price in cash in an amount equal to 100% of the principal amount thereof, thereof plus accrued and unpaid interest and Liquidated Damages, if any, thereon to the date of purchase, in accordance with the procedures set forth in this Indenture and in such other pari passu IndebtednessSection 4.20 (an "Asset Sale Offer"). To the extent that the aggregate principal amount of Notes and such other pari passu Indebtedness tendered pursuant to an Asset Sale Offer is less than the Excess Proceeds, the Company may use such deficiency for general corporate purposes in any remaining Excess Proceeds for any purpose manner not otherwise prohibited by this Indenture. If the aggregate principal amount of Notes and such other pari passu Indebtedness surrendered by Holders thereof exceeds the amount of Excess Proceeds, the Trustee shall select the Notes and such other pari passu Indebtedness to be purchased on a pro rata basis. Upon completion of an Asset Sale Offersuch offer to purchase, the amount of Excess Proceeds shall be reset at zero. In the event that the Company shall be required to commence an Asset Sale Offer to all Holders to purchase Notes pursuant to this Section 4.20, it shall follow the procedures specified below. The Asset Sale Offer shall be commenced within 30 days following the first date on which the Company has cumulative Excess Proceeds of at least $5,000,000 and remain open for a period of at least 30 and not more than 40 days, except to the extent that a longer period is required by applicable law (the "Repurchase Offer Period"). No later than five Business Days after the termination of the Offer Period (the "Repurchase Date"), the Company shall purchase the principal amount of Notes required to be purchased pursuant to this Section 4.20 hereof (the "Repurchase Price") or, if Notes having an aggregate principal amount less than the amount of Excess Proceeds subject to such Asset Sale Offer have been tendered, all Notes tendered in response to the Asset Sale Offer. Payment for any Notes so purchased shall be made in the same manner as interest payments are made. If the Repurchase Date is on or after an interest record date and on or before the related interest payment date, any accrued and unpaid interest shall be paid to the Person in whose name a Note is registered at the close of business on such record date, and no additional interest shall be payable to Holders who tender Notes pursuant to the Asset Sale Offer. Upon the commencement of an Asset Sale Offer, the Company shall send, by first class mail, a notice to the Trustee or to 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 4.20 and the length of time the Asset Sale Offer shall remain open;
(b) the Asset Sale Offer, the Repurchase Price and the Repurchase Date;
(c) that any Note not tendered or accepted for payment shall continue to accrue interest;
(d) that, unless the Company defaults in making such payment, any Note accepted for payment pursuant to the Asset Sale Offer shall cease to accrue interest after the Repurchase Date;
(e) that Holders electing to have a Note purchased pursuant to a Asset Sale Offer may only elect to have all of such Note purchased and may not elect to have only a portion of such Note purchased;
(f) that Holders electing to have a Note purchased pursuant to any Asset Sale Offer shall be required to surrender the Note, with the form entitled "Option of Holder to Elect Purchase" on the reverse of the Note completed, or transfer by book-entry transfer, to the Company, a depositary, if appointed by the Company, or a Paying Agent at the address specified in the notice at least three days before the Asset Sale Purchase Date;
(g) that Holders shall be entitled to withdraw their election if the Company, the Depositary or the Paying Agent, as the case may be, receives, not later than the expiration of the Repurchase Offer Period, a telegram, telex, facsimile transmission or letter setting forth the name of the Holder, the principal amount of the Note the Holder delivered for purchase and a statement that such Holder is withdrawing his election to have such Note purchased;
(h) that, if the aggregate principal amount of Notes surrendered by Holders exceeds the Repurchase Price, the Trustee shall select the Notes to be purchased on a pro rata basis (with such adjustments as may be deemed appropriate by the Trustee so that only Notes in denominations of $1,000, or integral multiples thereof, shall be purchased); and
(i) that Holders whose Notes were purchased only in part shall be issued new Notes equal in principal amount to the unpurchased portion of the Notes surrendered (or transferred by book-entry transfer). 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 Repurchase Date) mail or deliver to each tendering Holder an amount equal to the purchase price of the Notes tendered by such Holder and accepted by the Company for purchase, and the Company shall promptly issue a new Note, and the Trustee, upon written order 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 the Note surrendered. Any Note not so accepted shall be promptly mailed or delivered by the Company to the Holder thereof. The Company shall publicly announce the results of the Asset Sale Offer on the Repurchase Date. The Company shall comply with the requirements of Rule 14e-1 under the Exchange Act and any other securities laws, rules and regulations thereunder to the extent such laws, rules and regulations are applicable in connection with the repurchase of Notes pursuant to Asset Sale Offer.
Appears in 2 contracts
Sources: Indenture (Neenah Foundry Co), Indenture (Neenah Foundry Co)
Asset Sales. The (a) No Guarantor will, and the Company shall not, and shall cause the Guarantors not permit any of its Restricted Subsidiaries to, consummate an Asset Sale unless (i) the Company in a single transaction or such Restricted Subsidiarya series of related transactions, as the case may besell, receives consideration at the time of such Asset Sale at least equal to the fair market value (evidenced by a resolution of the Board of Directors set forth in an Officers' Certificate delivered to the Trustee) of the assets or Equity Interests issued or sold lease, assign, transfer, convey or otherwise disposed dispose of and any Collateral owned by such Guarantor (ii) at least 75% of including through the consideration therefor received sale by the Company or such Restricted Subsidiary is in its Subsidiaries of the form Equity Interests of cash or Cash Equivalentsany Guarantor) (each of the forgoing, an “Asset Sale”); provided that the amount of following shall not be deemed an Asset Sale:
(a1) any liabilities (as shown on the Company's sale, lease, assignment, transfer, conveyance or such Restricted Subsidiary's most recent balance sheet) of the Company or such Restricted Subsidiary (other than contingent liabilities and liabilities that are by their terms subordinated to the Notes or any guarantee thereof) that are assumed by the transferee disposition of any such assets pursuant to a customary novation agreement that releases the Company or such Restricted Subsidiary from further liability, (b) any securities, notes or other obligations received by the Company or such Restricted Subsidiary from such transferee that are immediately converted by the Company or such Restricted Subsidiary into cash (to the extent of the cash received) and (c) escrowed cash that the Company reasonably believes will be released from escrow within 365 days from the date of consummation of such Asset Sale, in each case shall be deemed to be cash for purposes of this provision. Notwithstanding the immediately preceding paragraph, the Company and its Restricted Subsidiaries will be permitted to consummate an Asset Sale without complying with such paragraph if (i) the Company or the applicable Restricted Subsidiary, as the case may be, receives consideration Collateral at the time of such Asset Sale at least equal to no less than the fair market value of the assets such Collateral for cash or Cash Equivalents, so long as, on a pro forma basis for such sale, lease, conveyance or other property disposition, the First Lien LTV Ratio is not greater than 0.375 to 1.00; provided that the Appraised Value of the Collateral sold, issued leased, transferred or otherwise disposed of pursuant to this sub-clause (as evidenced by a resolution 1) shall not exceed $9.5 billion in the aggregate (with the aggregate value of such Collateral for purposes of calculating utilization of this basket being determined pursuant to the definition “Appraised Value” at the time of consummation thereof without giving any effect to subsequent changes in value of the Company's Board applicable assets); provided, further, that no such sale, lease, assignment, transfer conveyance or other disposition shall be made to any Affiliate of Directors such Guarantor other than another Guarantor or a Spectrum Joint Venture; provided, further, that any sale, assignment, transfer, conveyance or disposition of any Collateral to a Spectrum Joint Venture (a) shall be made at no less than the Appraised Value of such Collateral for cash and (b) any Net Proceeds or Specified Net Proceeds resulting therefrom shall be applied as set forth in an Officers' Certificate delivered to under this Section 4.13;
(2) the Trustee) and (ii) at least 75% sale, lease, assignment, transfer, conveyance or other disposition of any Collateral between or among the consideration for such Asset Sale constitutes a controlling interest in a Permitted Business, long-term assets used or useful in a Permitted Business and/or cash or Cash EquivalentsGuarantors; provided that the applicable Guarantor receiving Collateral shall have concurrently therewith executed any cash and all documents, financing statements, agreements and instruments, and taken all further action that may be required under applicable law (to the extent required under this Indenture and/or the Security Documents) in order to grant and perfect a first-priority Lien in such Collateral for the benefit of the Holders;
(3) a disposition resulting from any condemnation or Cash Equivalents received by other taking, or temporary or permanent requisition of, any property or asset, any interest therein or right appurtenant thereto, in each case, as the Company result of the exercise of any right of condemnation or eminent domain, including any sale or other transfer to a governmental authority in lieu of, or in anticipation of, any of its Restricted Subsidiaries in connection with the foregoing events; and
(4) any Permitted Asset Sale permitted to be consummated under this paragraph shall constitute Net Proceeds subject to the provisions of the next succeeding paragraph. Swap.
(b) Within 365 45 days of the after receipt of any Net Proceeds from an Asset Saleor, the Company may apply such Specified Net Proceeds, at its optionas applicable, such Guarantor shall:
(i1) to repay so long as any aggregate principal amount of the New Senior Debt under a Credit Facility (and to correspondingly reduce commitments with respect thereto in Spectrum Secured Notes remain outstanding, apply the case Required Amount of revolving borrowings) or (ii) to the acquisition of a controlling interest in a Permitted Business, the making of a capital expenditure or the acquisition of other long-term assets, in each case, used or useful in a Permitted Business. Pending the final application of any such Net Proceeds, the Company may temporarily reduce Senior Debt or otherwise invest such Net Proceeds and Specified Net Proceeds to redeem New Senior Spectrum Secured Notes; provided that the Company shall redeem New Senior Spectrum Secured Notes in any manner the following order:
(A) first, up to $1.5 billion in aggregate principal amount of the New Senior Spectrum Secured Notes at a redemption price not to exceed 103% plus accrued and unpaid interest in accordance with the New Senior Spectrum Secured Notes Indenture,
(B) second, up to $500 million in aggregate principal amount of the New Senior Spectrum Secured Notes at a redemption price not to exceed 105% plus accrued and unpaid interest in accordance with the New Senior Spectrum Secured Notes Indenture; and
(C) third, New Senior Spectrum Secured Notes at a redemption price not to exceed (A) during the period prior to the date that is two years after the Issue Date, par plus 60% of the make-whole premium that would be payable pursuant to the make-whole optional redemption provisions under the New Senior Spectrum Secured Notes or (B) thereafter, the then-applicable redemption price specified in the New Senior Spectrum Secured Notes Indenture as in effect on the Issue Date;
(2) apply the Required Amount of such Net Proceeds and Specified Net Proceeds to redeem New Exchange Notes pursuant to Section 3.07(c) of the New Exchange Notes Indenture; or
(3) any combination of the foregoing. Any Net Proceeds or Specified Net Proceeds that are not required to be applied as set forth above may be used for any purpose not prohibited by this Indenture. Any Net Proceeds from Asset Sales that are not applied or invested as provided in , subject to the first sentence of this paragraph shall be deemed to constitute "Excess Proceeds." When the aggregate amount of Excess Proceeds exceeds $10.0 million, the Company shall be required to make an offer to all Holders of Notes and all holders of other pari passu Indebtedness containing provisions similar to those set forth covenants contained in this Indenture with respect to offers to purchase or redeem such other pari passu Indebtedness with the proceeds of sales of assets (an "Asset Sale Offer") to purchase the maximum principal amount of Notes and such other pari passu Indebtedness that may be purchased out of the Excess Proceeds at an offer price in cash in an amount equal to 100% of the principal amount thereof, plus accrued and unpaid interest and Liquidated Damages, if any, thereon to the date of purchase, in accordance with the procedures set forth in this Indenture and in such other pari passu Indebtedness. To the extent that the aggregate amount of Notes and such other pari passu Indebtedness tendered pursuant to an Asset Sale Offer is less than the Excess Proceeds, the Company may use any remaining Excess Proceeds for any purpose not otherwise prohibited by this Indenture. If the aggregate principal amount of Notes and such other pari passu Indebtedness surrendered by Holders thereof exceeds the amount of Excess Proceeds, the Trustee shall select the Notes and such other pari passu Indebtedness to be purchased on a pro rata basis. Upon completion of an Asset Sale Offer, the amount of Excess Proceeds shall be reset at zero.
Appears in 2 contracts
Sources: Indenture (DISH Network CORP), Indenture (SNR Wireless LicenseCo, LLC)
Asset Sales. The Company shall will not, and shall will not permit any of its Restricted Subsidiaries to, consummate cause or make an Asset Sale Sale, unless (ix) the Company or such any of its Restricted SubsidiarySubsidiaries, as the case may be, receives consideration at the time of such Asset Sale at least equal to the fair market value (evidenced by a resolution of the Board of Directors set forth in an Officers' Certificate delivered to the Trustee) Fair Market Value of the assets or Equity Interests Capital Stock issued or sold or otherwise disposed of of, and (iiy) 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 Cash Equivalents or Cash Equivalentsproperty or assets that are used or useful in the business of the Company or a Similar Business, or Capital Stock of any person primarily engaged in a Similar Business if as a result of the acquisition such Person becomes a Restricted Subsidiary; provided that the amount of of:
(a) any liabilities (as shown on the Company's ’s or such Restricted Subsidiary's ’s most recent available internal balance sheetsheet or in the notes thereto) of the Company or such any Restricted Subsidiary of the Company (other than contingent liabilities and liabilities that are by their terms subordinated to the Notes Loans or any guarantee thereofLoan Guaranty) that are assumed by the transferee of any such assets pursuant shall be deemed to a customary novation agreement that releases be Cash Equivalents for the Company or such Restricted Subsidiary from further liability, purposes of this provision;
(b) any securities, 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 immediately converted by the Company or such Restricted Subsidiary of the Company into cash within 180 days of the receipt thereof (to the extent of the cash received) and (c) escrowed cash that the Company reasonably believes will be released from escrow within 365 days from the date of consummation of such Asset Sale, in each case shall be deemed to be cash Cash Equivalents for the purposes of this provision. Notwithstanding the immediately preceding paragraph, the Company and its Restricted Subsidiaries will be permitted to consummate an Asset Sale without complying with such paragraph if ;
(ic) the Company or the applicable Restricted Subsidiary, as the case may be, receives consideration at the time of such Asset Sale at least equal to the fair market value of the assets or other property sold, issued or otherwise disposed of (as evidenced by a resolution of the Company's Board of Directors set forth in an Officers' Certificate delivered to the Trustee) and (ii) at least 75% of the consideration for such Asset Sale constitutes a controlling interest in a Permitted Business, longany Designated Non-term assets used or useful in a Permitted Business and/or cash or Cash Equivalents; provided that any cash or Cash Equivalents Consideration received by the Company or any of its such Restricted Subsidiaries Subsidiary in connection with any such Asset Sale permitted having an aggregate Fair Market Value, taken together with all other Designated Non-cash Consideration received pursuant to be consummated under this paragraph shall constitute Net Proceeds subject clause (c) that is at that time outstanding, not to exceed $50,000,000 at the provisions of the next succeeding paragraph. Within 365 days time of the receipt of any Net Proceeds from an Asset Sale, the Company may apply such Net Proceeds, at its option, (i) to repay Senior Debt under a Credit Facility (and to correspondingly reduce commitments with respect thereto in the case of revolving borrowings) or (ii) to the acquisition of a controlling interest in a Permitted Business, the making of a capital expenditure or the acquisition of other longDesignated Non-term assets, in each case, used or useful in a Permitted Business. Pending the final application of any such Net Proceeds, the Company may temporarily reduce Senior Debt or otherwise invest such Net Proceeds in any manner that is not prohibited by this Indenture. Any Net Proceeds from Asset Sales that are not applied or invested as provided in the first sentence of this paragraph cash Consideration shall be deemed to constitute "Excess Proceeds." When be Cash Equivalents for the aggregate amount purposes of Excess Proceeds exceeds $10.0 millionthis provision, the Company shall be required to make an offer to all Holders of Notes and all holders of other pari passu Indebtedness containing provisions similar to those set forth in this Indenture with respect to offers to purchase or redeem such other pari passu Indebtedness with the proceeds Fair Market Value of sales each item of assets (an "Asset Sale Offer") Designated Non-cash Consideration being measured at the time received and without giving effect to purchase the maximum principal amount of Notes and such other pari passu Indebtedness that may be purchased out of the Excess Proceeds at an offer price subsequent changes in cash in an amount equal to 100% of the principal amount thereof, plus accrued and unpaid interest and Liquidated Damages, if any, thereon to the date of purchase, in accordance with the procedures set forth in this Indenture and in such other pari passu Indebtedness. To the extent that the aggregate amount of Notes and such other pari passu Indebtedness tendered pursuant to an Asset Sale Offer is less than the Excess Proceeds, the Company may use any remaining Excess Proceeds for any purpose not otherwise prohibited by this Indenture. If the aggregate principal amount of Notes and such other pari passu Indebtedness surrendered by Holders thereof exceeds the amount of Excess Proceeds, the Trustee shall select the Notes and such other pari passu Indebtedness to be purchased on a pro rata basis. Upon completion of an Asset Sale Offer, the amount of Excess Proceeds shall be reset at zero.value;
Appears in 2 contracts
Sources: Credit Agreement (Office Depot Inc), Credit Agreement (Office Depot Inc)
Asset Sales. (a) The Company Borrower shall not, and shall not permit any of its Restricted Subsidiaries to, consummate consummate, directly or indirectly, an Asset Sale unless unless: (i) the Company Borrower or such Restricted Subsidiary, as the case may be, receives consideration (including by way of relief from, or by any other Person assuming responsibility for, any liabilities, contingent or otherwise, in connection with such Asset Sale) at the time of such Asset Sale at least equal to the fair market value Fair Market Value
(evidenced by a resolution b) For purposes of Section 6.4(a)(ii) (and no other provision), the following shall be deemed to be cash or Cash Equivalents: (i) the greater of the Board principal amount and the carrying value of Directors set forth in an Officers' Certificate delivered to any liabilities (as reflected on the Trustee) most recent balance sheet 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 Borrower or such Restricted Subsidiary is or in the form footnotes thereto, or if incurred, accrued or increased subsequent to the date of cash or Cash Equivalents; provided such balance sheet, such liabilities that the amount of (a) any liabilities (as shown would have been reflected on the Company's balance sheet of the Borrower or such Restricted Subsidiary or in the footnotes thereto if such incurrence, accrual or increase had taken place on or prior to the date of such balance sheet, as determined in good faith by the Borrower) of the Borrower or such Restricted Subsidiary's most recent balance sheet) of the Company or such Restricted Subsidiary (, other than contingent liabilities and liabilities that are by their terms subordinated in right of payment to the Notes or any guarantee thereof) Obligations, that are assumed by the transferee of any such assets (or are otherwise extinguished in connection with the transactions relating to such Asset Sale) pursuant to a customary novation written agreement that which releases or indemnifies the Company or such Restricted Subsidiary from further liability, (b) any securities, notes or other obligations received by the Company Borrower or such Restricted Subsidiary from such transferee that are immediately converted by the Company or such Restricted Subsidiary into cash (to the extent of the cash received) and (c) escrowed cash that the Company reasonably believes will be released from escrow within 365 days from the date of consummation of such Asset Sale, in each case shall be deemed to be cash for purposes of this provision. Notwithstanding the immediately preceding paragraph, the Company and its Restricted Subsidiaries will be permitted to consummate an Asset Sale without complying with such paragraph if (i) the Company or the applicable Restricted Subsidiary, as the case may be, receives consideration at the time of such Asset Sale at least equal to the fair market value of the assets or other property sold, issued or otherwise disposed of (as evidenced by a resolution of the Company's Board of Directors set forth in an Officers' Certificate delivered to the Trustee) and liabilities; (ii) at least 75% of the consideration for such Asset Sale constitutes a controlling interest in a Permitted Business, long-term assets used or useful in a Permitted Business and/or cash or Cash Equivalents; provided that any cash or Cash Equivalents received by the Company or any of its Restricted Subsidiaries in connection with any Asset Sale permitted to be consummated under this paragraph shall constitute Net Proceeds subject to the provisions of the next succeeding paragraph. Within 365 days of the receipt of any Net Proceeds from an Asset Sale, the Company may apply such Net Proceeds, at its option, (i) to repay Senior Debt under a Credit Facility (and to correspondingly reduce commitments with respect thereto in the case of revolving borrowings) or (ii) to the acquisition of a controlling interest in a Permitted Business, the making of a capital expenditure or the acquisition of other long-term assets, in each case, used or useful in a Permitted Business. Pending the final application of any such Net Proceeds, the Company may temporarily reduce Senior Debt or otherwise invest such Net Proceeds in any manner that is not prohibited by this Indenture. Any Net Proceeds from Asset Sales that are not applied or invested as provided in the first sentence of this paragraph shall be deemed to constitute "Excess Proceeds." When the aggregate amount of Excess Proceeds exceeds $10.0 million, the Company shall be required to make an offer to all Holders of Notes and all holders of other pari passu Indebtedness containing provisions similar to those set forth in this Indenture with respect to offers to purchase or redeem such other pari passu Indebtedness with the proceeds of sales of assets (an "Asset Sale Offer") to purchase the maximum principal amount of Notes and such other pari passu Indebtedness that may be purchased out of the Excess Proceeds at an offer price in cash in an amount equal to 100% of the principal amount thereof, plus accrued and unpaid interest and Liquidated Damages, if any, thereon to the date of purchase, in accordance with the procedures set forth in this Indenture and in such other pari passu Indebtedness. To the extent that the aggregate amount of Notes and such other pari passu Indebtedness tendered pursuant to an Asset Sale Offer is less than the Excess Proceeds, the Company may use any remaining Excess Proceeds for any purpose not otherwise prohibited by this Indenture. If the aggregate principal amount of Notes and such other pari passu Indebtedness surrendered by Holders thereof exceeds the amount of Excess Proceeds, the Trustee shall select the Notes and such other pari passu Indebtedness to be purchased on a pro rata basis. Upon completion of an Asset Sale Offer, the amount of Excess Proceeds shall be reset at zero.[Reserved]
Appears in 2 contracts
Sources: Credit Agreement (New Fortress Energy Inc.), Credit Agreement (New Fortress Energy Inc.)
Asset Sales. The Company Lessee shall not, and shall not permit any of its Restricted Subsidiaries to, consummate an Asset Sale unless (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 Company ordinary course of business consistent with past practice (provided that the sale, lease, conveyance or such Restricted 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 $5,000,000, or (B) for net proceeds in excess of $5,000,000 (each of the foregoing, an "Asset Sale"), unless (X) Lessee (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 (evidenced by a resolution of the Board board of Directors directors of the General Partner (and, if applicable, the audit committee of such board of directors) set forth in an Officers' Certificate a certificate signed by a Responsible Officer and delivered to the TrusteeAgent) of the assets or Equity Interests issued or sold or otherwise disposed of and (iiY) at least 7580% of the consideration therefor received by the Company Lessee or such Restricted Subsidiary is in the form of cash or Cash Equivalentscash; provided provided, however, that the amount of (a1) any liabilities (as shown on the CompanyLessee's or such Restricted Subsidiary's most recent balance sheet) sheet or in the notes thereto), of the Company Lessee or such Restricted any Subsidiary (other than contingent liabilities and liabilities that are by their terms subordinated in right of payment to the Notes or any guarantee thereofObligations hereunder and under the other Operative Documents) that are assumed by the transferee of any such assets pursuant to a customary novation agreement that releases the Company or such Restricted Subsidiary from further liability, and (b2) any securities, notes or other obligations received by the Company Lessee or any such Restricted Subsidiary from such transferee that are immediately converted by the Company Lessee or such Restricted Subsidiary into cash (to the extent of the cash received) and (c) escrowed cash that the Company reasonably believes will be released from escrow within 365 days from the date of consummation of such Asset Sale), in each case 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 immediately preceding paragraphforegoing, the Company Asset Sales shall not be deemed to include (w) sales or transfers of accounts receivable by Lessee to an SPE and its Restricted Subsidiaries will be permitted by an SPE to consummate an Asset Sale without complying with such paragraph if (i) the Company or the applicable Restricted Subsidiary, as the case may be, receives consideration at the time of such Asset Sale at least equal to the fair market value of the assets or any other property sold, issued or otherwise disposed of (as evidenced by a resolution of the Company's Board of Directors set forth in an Officers' Certificate delivered to the Trustee) and (ii) at least 75% of the consideration for such Asset Sale constitutes a controlling interest in a Permitted Business, long-term assets used or useful in a Permitted Business and/or cash or Cash Equivalents; provided that any cash or Cash Equivalents received by the Company or any of its Restricted Subsidiaries Person in connection with any Asset Sale Accounts Receivable Securitization permitted to be consummated under this paragraph shall constitute Net Proceeds subject to the provisions of the next succeeding paragraph. Within 365 days of the receipt of any Net Proceeds from an Asset Sale, the Company may apply such Net Proceeds, at its option, by Section 5.21 (i) to repay Senior Debt under a Credit Facility (and to correspondingly reduce commitments with respect thereto in the case of revolving borrowings) or (ii) to the acquisition of a controlling interest in a Permitted Business, the making of a capital expenditure or the acquisition of other long-term assets, in each case, used or useful in a Permitted Business. Pending the final application of any such Net Proceeds, the Company may temporarily reduce Senior Debt or otherwise invest such Net Proceeds in any manner that is not prohibited by this Indenture. Any Net Proceeds from Asset Sales that are not applied or invested as provided in the first sentence of this paragraph shall be deemed to constitute "Excess Proceeds." When the aggregate amount of Excess Proceeds exceeds $10.0 million, the Company shall be required to make an offer to all Holders of Notes and all holders of other pari passu Indebtedness containing provisions similar to those set forth in this Indenture with respect to offers to purchase or redeem such other pari passu Indebtedness with the proceeds of sales of assets (an "Asset Sale Offer") to purchase the maximum principal amount of Notes and such other pari passu Indebtedness that may be purchased out of the Excess Proceeds at an offer price in cash in an amount equal to 100% of the principal amount thereof, plus accrued and unpaid interest and Liquidated Damages, if any, thereon to the date of purchase, in accordance with the procedures set forth in this Indenture and in such other pari passu Indebtedness. To the extent that the aggregate amount of Notes such accounts receivable that shall have been transferred to and such other pari passu Indebtedness tendered pursuant to an Asset Sale Offer is less than the Excess Proceeds, the Company may use held by all SPEs at any remaining Excess Proceeds for any purpose time shall not otherwise prohibited by this Indenture. If the aggregate principal amount exceed 133% of Notes and such other pari passu Indebtedness surrendered by Holders thereof exceeds the amount of Excess Proceeds, the Trustee shall select the Notes and such other pari passu Indebtedness Accounts Receivable Securitizations permitted to be purchased on outstanding under Section 5.21), (x) any transfer of assets by Lessee or any of its Subsidiaries to a pro rata basisSubsidiary of Lessee that is a Guarantor under the Credit Agreement, (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 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. Upon completion Notwithstanding the foregoing, Lessee may not sell, lease, convey or otherwise dispose of an Asset Sale Offer, any Unit except as permitted by the amount of Excess Proceeds shall be reset at zeroLease.
Appears in 2 contracts
Sources: Participation Agreement (Ferrellgas Partners Finance Corp), Participation Agreement (Ferrellgas Partners Finance Corp)
Asset Sales. The Company shall not, and shall not permit Not later than five Business Days following the receipt of any Net Cash Proceeds of its Restricted Subsidiaries to, consummate an any Asset Sale unless (i) the Company or such Restricted Subsidiary, as the case may be, receives consideration at the time of such Asset Sale at least equal to the fair market value (evidenced by a resolution of the Board of Directors set forth in an Officers' Certificate delivered to the Trustee) of the assets or Equity Interests issued or sold or otherwise disposed of and (ii) at least 75% of the consideration therefor received by the Company or such Restricted Subsidiary is in the form of cash or Cash Equivalents; provided that the amount of (a) any liabilities (as shown on the Company's or such Restricted Subsidiary's most recent balance sheet) of the Company or such Restricted Subsidiary (other than contingent liabilities and liabilities that are by their terms subordinated to the Notes or any guarantee thereof) that are assumed by the transferee of any such assets pursuant to a customary novation agreement that releases the Company or such Restricted Subsidiary from further liability, (b) any securities, notes or other obligations received by the Company or such Restricted Subsidiary from such transferee that are immediately converted by the Company or such Restricted Subsidiary into cash (to the extent of the cash received) and (c) escrowed cash that the Company reasonably believes will be released from escrow within 365 days from the date of consummation of such Asset Sale, in each case shall be deemed to be cash for purposes of this provision. Notwithstanding the immediately preceding paragraph, the Company and its Restricted Subsidiaries will be permitted to consummate an Asset Sale without complying with such paragraph if (i) the Company or the applicable Restricted Subsidiary, as the case may be, receives consideration at the time of such Asset Sale at least equal to the fair market value of the assets or other property sold, issued or otherwise disposed of (as evidenced by a resolution of the Company's Board of Directors set forth in an Officers' Certificate delivered to the Trustee) and (ii) at least 75% of the consideration for such Asset Sale constitutes a controlling interest in a Permitted Business, long-term assets used or useful in a Permitted Business and/or cash or Cash Equivalents; provided that any cash or Cash Equivalents received by the Company Borrower or any of its Restricted Subsidiaries in connection with any Asset Sale permitted Subsidiaries, Borrower shall make or cause to be consummated under this paragraph shall constitute Net Proceeds subject to the provisions of the next succeeding paragraph. Within 365 days of the receipt of any Net Proceeds from an Asset Sale, the Company may apply made such Net Proceeds, at its option, (i) to repay Senior Debt under a Credit Facility (prepayments and to correspondingly reduce commitments with respect thereto in the case of revolving borrowings) or (ii) to the acquisition of a controlling interest in a Permitted Business, the making of a capital expenditure or the acquisition of other long-term assets, in each case, used or useful in a Permitted Business. Pending the final application of any such Net Proceeds, the Company may temporarily reduce Senior Debt or otherwise invest such Net Proceeds in any manner that is not prohibited by this Indenture. Any Net Proceeds from Asset Sales that are not applied or invested as provided in the first sentence of this paragraph shall be deemed to constitute "Excess Proceeds." When the aggregate amount of Excess Proceeds exceeds $10.0 million, the Company shall be required to make an offer to all Holders of Notes and all holders of other pari passu Indebtedness containing provisions similar to those set forth in this Indenture with respect to offers to purchase or redeem such other pari passu Indebtedness with the proceeds of sales of assets (an "Asset Sale Offer") to purchase the maximum principal amount of Notes and such other pari passu Indebtedness that may be purchased out of the Excess Proceeds at an offer price in cash reductions in an aggregate amount equal to 100% of such Net Cash Proceeds in excess of $1,000,000 in the principal amount thereofaggregate; provided that:
(A) no such prepayment or reduction shall be required under this section with respect to (1) any Asset Sale permitted by Section 6.06(a), plus accrued and unpaid interest and Liquidated Damages(b), if any(c), thereon (d), (f), (g), (h), (i), (j), (k), (l), (m), (n), (o), (p), (q) or (r); (2) the granting of any Lien permitted by Section 6.02, or (3) any Asset Sale permitted by Section 6.05; and
(B) so long as no Default shall then exist or would arise therefrom, such proceeds shall not be required to be so applied on such date to the extent that Borrower shall have delivered an Officers’ Certificate to the Administrative Agent on or prior to such date stating that such Net Cash Proceeds are expected to be reinvested in assets useful in the business of Borrower or any of its Subsidiaries (other than reinvestments in assets classified as current assets) within 12 months following the date of purchasesuch Asset Sale or, in accordance with if some or all of such Net Cash Proceeds are scheduled to be received more than 12 months after such Asset Sale, within 12 months following the procedures receipt thereof (which Officers’ Certificate shall set forth the estimates of the proceeds to be so expended); provided that if all or any portion of such Net Cash Proceeds is not so reinvested within either such 12-month period, such unused portion shall be applied on the last day of such period as a mandatory prepayment or reduction as provided in this Indenture and in section (it being understood that, if within either such other pari passu Indebtedness. To 12-month period Borrower (or one of its Subsidiaries) has contractually committed to so reinvest Net Cash Proceeds, then any Net Cash Proceeds so committed will be exempt from the extent that the aggregate amount of Notes and such other pari passu Indebtedness tendered prepayment required pursuant to an this section, so long as such funds are in fact reinvested as provided above within eighteen months after such Asset Sale Offer is less than the Excess Proceeds, the Company may use any remaining Excess Proceeds for any purpose not otherwise prohibited by this Indenture. If the aggregate principal amount of Notes and such other pari passu Indebtedness surrendered by Holders thereof exceeds the amount of Excess Proceeds, the Trustee shall select the Notes and such other pari passu Indebtedness to be purchased on a pro rata basis. Upon completion of an Asset Sale Offer, the amount of Excess Proceeds shall be reset at zeroSale).
Appears in 2 contracts
Sources: Revolving Credit Agreement, Credit Agreement (Revel AC, Inc.)
Asset Sales. The Company shall not, and shall not permit any of its Restricted Subsidiaries to, consummate an Asset Sale, except for any Asset Sale unless for Fair Market Value (i) measured as of the Company or such Restricted Subsidiary, as date of the case may be, receives consideration at the time of definitive agreement with respect to such Asset Sale at least equal to the fair market value (evidenced by a resolution Sale) if all 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 following conditions are met: (iia) at least 75% of the consideration therefor received by paid to the Company or such Restricted Subsidiary in connection with such Asset Sale is in the form of cash or Cash Equivalents; provided that the amount assumption by the purchaser of (a) any liabilities (as shown on the Company's or such Restricted Subsidiary's most recent balance sheet) of the Company or such Restricted Subsidiary any of its Subsidiaries (other than contingent liabilities and liabilities that are by their terms contractually subordinated to the Notes or any guarantee thereofthe applicable Note Guarantee) that are assumed by the transferee as a result of any such assets pursuant to a customary novation agreement that releases which the Company or and its Subsidiaries are no longer obligated with respect to such Restricted Subsidiary from further liabilityliabilities, (b) any securities, notes no Event of Default has occurred and is continuing or other obligations received by the Company or such Restricted Subsidiary shall result from such transferee that are immediately converted by the Company or such Restricted Subsidiary into cash (to the extent of the cash received) disposition, and (c) escrowed cash that the Company reasonably believes will be released from escrow within 365 days from the date of consummation of such Asset Sale, in each case shall be deemed to be cash for purposes of this provision. Notwithstanding the immediately preceding paragraph, the Company and its Restricted Subsidiaries will be permitted to consummate an Asset Sale without complying with such paragraph if (i) the Company or the applicable Restricted Subsidiary, as the case may be, receives consideration at the time of such Asset Sale at least equal to the fair market value of the assets or other property sold, issued or otherwise disposed of (as evidenced by a resolution of the Company's Board of Directors set forth in an Officers' Certificate delivered to the Trustee) and (ii) at least 75% of the consideration for such Asset Sale constitutes a controlling interest in a Permitted Business, long-term assets used or useful in a Permitted Business and/or cash or Cash Equivalents; provided that any cash or Cash Equivalents received by the Company or any of its Restricted Subsidiaries in connection with any Asset Sale permitted to be consummated under this paragraph shall constitute Net Proceeds subject to the provisions of the next succeeding paragraph. Within 365 days of the receipt of any Net Proceeds from an Asset Sale, the Company may apply such Net Proceeds, at its option, (i) to repay Senior Debt under a Credit Facility (and to correspondingly reduce commitments with respect thereto in the case of revolving borrowings) or (ii) to the acquisition of a controlling interest in a Permitted Business, the making of a capital expenditure or the acquisition of other long-term assets, in each case, used or useful in a Permitted Business. Pending the final application of any such Net Proceeds, the Company may temporarily reduce Senior Debt or otherwise invest such Net Proceeds in any manner that is not prohibited by this Indenture. Any Net Proceeds from Asset Sales that are not applied or invested as provided in the first sentence of this paragraph shall be deemed to constitute "Excess Proceeds." When the aggregate amount of Excess Proceeds exceeds Asset Sales shall not exceed $10.0 million, the Company shall be required to make an offer to all Holders of Notes and all holders of other pari passu Indebtedness containing provisions similar to those set forth 1,000,000 in this Indenture with respect to offers to purchase or redeem such other pari passu Indebtedness with the proceeds of sales of assets (an "Asset Sale Offer") to purchase the maximum principal amount of Notes and such other pari passu Indebtedness that may be purchased out of the Excess Proceeds at an offer price in cash in an amount equal to 100% of the principal amount thereof, plus accrued and unpaid interest and Liquidated Damages, if any, thereon to the date of purchase, in accordance with the procedures set forth in this Indenture and in such other pari passu Indebtednessany calendar year. To the extent that the aggregate amount requisite Holders under the applicable provisions of Notes Section 9.02 waive the provisions of this Section 4.15, with respect to the sale of any Collateral, or any Collateral is sold as permitted by this Section 4.15, such Collateral (unless sold to a Note Party) shall be sold free and clear of the Liens created by the Collateral Documents without any further action by or consent from the Trustee, Collateral Agent or any Holder, and, so long as the Company shall have previously provided to the Collateral Agent and the Trustee such other pari passu Indebtedness tendered pursuant certifications or documents as the Collateral Agent and/or the Trustee shall reasonably request in order to an Asset Sale Offer is less than demonstrate compliance with this Section 4.15, the Excess ProceedsCollateral Agent shall take all actions reasonably requested by, and at the sole cost and expense of, the Company may use any remaining Excess Proceeds for any purpose not otherwise prohibited by this Indenture. If in order to effect the aggregate principal amount of Notes and such other pari passu Indebtedness surrendered by Holders thereof exceeds the amount of Excess Proceeds, the Trustee shall select the Notes and such other pari passu Indebtedness to be purchased on a pro rata basis. Upon completion of an Asset Sale Offer, the amount of Excess Proceeds shall be reset at zeroforegoing.
Appears in 2 contracts
Sources: Indenture (Orexigen Therapeutics, Inc.), Indenture (Orexigen Therapeutics, Inc.)
Asset Sales. The Company shall not, and shall not permit any of its Restricted Subsidiaries to, consummate an Asset Sale unless (i) the Company (or such the Restricted Subsidiary, as the case may be, ) receives consideration at the time of such Asset Sale at least equal to the fair market value (evidenced by an Officers' Certificate delivered to the Trustee which will include a resolution of the Board of Directors set forth with respect to such fair market value in an Officers' Certificate delivered to the Trusteeevent such Asset Sale involves aggregate consideration in excess of $5.0 million) of the assets or Equity Interests issued or sold or otherwise disposed of and (ii) at least 7580% of the consideration therefor received by the Company or such Restricted Subsidiary is in Subsidiary, as the form case may be, consists of cash or cash, Cash EquivalentsEquivalents and/or Marketable Securities; provided provided, however, that (A) the amount of (a) any liabilities (as shown on the Company's or such Restricted Subsidiary's most recent balance sheet) Senior Debt of the Company or such Restricted Subsidiary (other than contingent liabilities and liabilities that are by their terms subordinated to the Notes or any guarantee thereof) that are is assumed by the transferee of in any such assets pursuant to a customary novation agreement that releases the Company or such Restricted Subsidiary from further liability, transaction and (bB) any securities, notes or other obligations consideration received by the Company or such Restricted Subsidiary from such transferee Subsidiary, as the case may be, that consists of (1) all or substantially all of the assets of one or more Similar Businesses, (2) other long-term assets that are immediately converted by the Company used or such Restricted Subsidiary into cash (to the extent of the cash received) useful in one or more Similar Businesses and (c3) escrowed cash that the Company reasonably believes will be released from escrow within 365 days from the date of consummation of such Asset Sale, in each case Permitted Securities shall be deemed to be cash for purposes of this provision. Notwithstanding the immediately preceding paragraph, the Company and its Restricted Subsidiaries will be permitted to consummate an Asset Sale without complying with such paragraph if (i) the Company or the applicable Restricted Subsidiary, as the case may be, receives consideration at the time of such Asset Sale at least equal to the fair market value of the assets or other property sold, issued or otherwise disposed of (as evidenced by a resolution of the Company's Board of Directors set forth in an Officers' Certificate delivered to the Trustee) and (ii) at least 75% of the consideration for such Asset Sale constitutes a controlling interest in a Permitted Business, long-term assets used or useful in a Permitted Business and/or cash or Cash Equivalents; provided that any cash or Cash Equivalents received by the Company or any of its Restricted Subsidiaries in connection with any Asset Sale permitted to be consummated under this paragraph shall constitute Net Proceeds subject to the provisions of the next succeeding paragraph. Within 365 days of after the receipt of any Net Proceeds from an Asset Sale, the Company may apply such Net Proceeds, at its option, (i) to repay Senior Debt Indebtedness under a Credit Facility (and to correspondingly reduce commitments with respect thereto in the case of revolving borrowings) Facility, or (ii) to the acquisition of a controlling interest in a Permitted BusinessSecurities, all or substantially all of the assets of one or more Similar Businesses, or the making of a capital expenditure or the acquisition of other long-term assets, in each case, used or useful assets in a Permitted Similar Business. Pending the final application of any such Net Proceeds, the Company may temporarily reduce Senior Debt Indebtedness under a Credit Facility or otherwise invest such Net Proceeds in any manner that is not prohibited by this Indenture. Any Net Proceeds from Asset Sales that are not applied or invested as provided in the first sentence of this paragraph shall be deemed to constitute "Excess Proceeds." ". When the aggregate amount of Excess Proceeds exceeds $10.0 million, the Company shall be required to make an offer to all Holders of Notes and all holders of other pari passu Indebtedness containing provisions similar to those set forth in this Indenture with respect to offers to purchase or redeem such other pari passu Indebtedness with the proceeds of sales of assets 1997 Notes (an "Asset Sale Offer") to purchase the maximum principal amount of 1997 Notes and such other pari passu Indebtedness that may be purchased out of the Excess Proceeds Proceeds, at an offer price in cash in an amount equal to 100% of the principal amount thereof, thereof plus accrued and unpaid interest to the date of purchase, in accordance with the procedures set forth in the 1997 Indenture. To the extent that the aggregate amount of 1997 Notes tendered pursuant to an Asset Sale Offer is less than the remaining Excess Proceeds ("Remaining Excess Proceeds") and Liquidated Damagesthe sum of (A) such amount of Remaining Excess Proceeds and (B) the Remaining Excess Proceeds from any subsequent Asset Sale Offers exceeds $3.0 million, the Company will be required to make an offer to all Holders of Notes and any other Indebtedness that ranks pari passu with the Notes that, by its terms, requires the Company to offer to repurchase such Indebtedness with such Remaining Excess Proceeds (a "Secondary Asset Sale Offer") to purchase the maximum principal amount of Notes and pari passu Indebtedness that may be purchased out of such Remaining Excess Proceeds, at an offer price in cash in an amount equal to 100% of the principal amount thereof plus accrued and unpaid interest thereon, if any, thereon to the date of purchase, in accordance with the procedures set forth in this Indenture and in such other pari passu IndebtednessIndenture. To the extent that the aggregate amount of Notes and such other or pari passu Indebtedness tendered pursuant to an a Secondary Asset Sale Offer is less than the Remaining Excess Proceeds, the Company may use any remaining Remaining Excess Proceeds for any purpose not otherwise prohibited by this Indenturegeneral corporate purposes. If the aggregate principal amount of Notes and such other or pari passu Indebtedness surrendered by Holders thereof exceeds the amount of Remaining Excess ProceedsProceeds in a Secondary Asset Sale Offer, the Company shall repurchase such Indebtedness on a pro rata basis and the Trustee shall select the Notes and such other pari passu Indebtedness to be purchased on a pro rata basis. Upon completion of an Asset Sale Offersuch offer to purchase, the amount of Excess Proceeds shall be reset at zero.
Appears in 2 contracts
Sources: Indenture (L-3 Communications SPD Technologies Inc), Indenture (Southern California Microwave Inc)
Asset Sales. (a) The Company Borrower shall not, and shall not permit any of its Restricted Subsidiaries to, consummate consummate, directly or indirectly, an Asset Sale unless unless:
(i) the Company Borrower or such Restricted Subsidiary, as the case may be, receives consideration (including by way of relief from, or by any other Person assuming responsibility for, any liabilities, contingent or otherwise, in connection with such Asset Sale) at the time of such Asset Sale at least equal to the fair market value Fair Market Value (evidenced by a resolution measured at the time of the Board of Directors set forth in an Officers' Certificate delivered contractually agreeing to the Trusteesuch Asset Sale) of the assets or Equity Interests issued or sold or otherwise disposed of and of; and
(ii) except in the case of a Permitted Asset Swap, at least 7575.0% of the consideration therefor (measured at the time of contractually agreeing to such Asset Sale) for such Asset Sale, together with all other Asset Sales completed or contractually agreed upon since the Issue Date (on a cumulative basis), received (or to be received) by the Company Borrower or such Restricted Subsidiary Subsidiary, as the case may be, is in the form of cash or Cash Equivalents; provided that the amount of (a) any liabilities (as shown on the Company's or such Restricted Subsidiary's most recent balance sheet) of the Company or such Restricted Subsidiary (other than contingent liabilities and liabilities that are by their terms subordinated to the Notes or any guarantee thereof) that are assumed by the transferee of any such assets pursuant to a customary novation agreement that releases the Company or such Restricted Subsidiary from further liability, .
(b) any securities, notes or other obligations received by the Company or such Restricted Subsidiary from such transferee that are immediately converted by the Company or such Restricted Subsidiary into cash ([Reserved]; Notwithstanding anything herein to the extent of contrary, no Collateral may be transferred to any Unrestricted Subsidiary other than cash to service the cash receivedIndebtedness (i) incurred in connection with the 2024 Financing Transactions and (c) escrowed cash that not to exceed the Company reasonably believes will be released from escrow within 365 days from amount required to pay principal, interest, premiums, expenses, indemnities or fees then due and payable; provided the date of consummation of such Asset Sale, in each case foregoing shall not be deemed to be cash for purposes permit regularly scheduled amortization payments other than the final payment of this provision. Notwithstanding the immediately preceding paragraph, the Company and its Restricted Subsidiaries will be permitted to consummate an Asset Sale without complying with such paragraph if (i) the Company or the applicable Restricted Subsidiary, as the case may be, receives consideration principal due 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 Company's Board of Directors set forth in an Officers' Certificate delivered to the Trustee) maturity and (ii) at least 75% of incurred prior to the consideration for such Asset Sale constitutes a controlling interest in a Permitted BusinessClosing Date by NFE South Power Holdings Limited and consistent with past practice. Notwithstanding anything herein to the contrary, long-term assets used or useful in a Permitted Business and/or cash or Cash Equivalents; provided that any cash or Cash Equivalents received by the Company or Borrower shall not, and shall not permit any of its Restricted Subsidiaries to, consummate, directly or indirectly, any sale, lease, conveyance, transfer or other disposition whether in connection with any Asset a single transaction or a series of related transactions (including by way of a Sale permitted to be consummated under this paragraph shall constitute Net Proceeds subject to the provisions and Leaseback Transaction), contribution, dividend or other investment of the next succeeding paragraph. Within 365 days of the receipt of any Net Proceeds from an Asset Sale, the Company may apply such Net Proceeds, at its option, (i) to repay Senior Debt under a Credit Facility (and to correspondingly reduce commitments with respect thereto in the case of revolving borrowings) any assets that constitute FLNG2 Assets or any Reinvested Assets other than Immaterial FLNG2 Maintenance Transactions or (ii) at any time prior to the acquisition of a controlling interest Completion Date, any Equity Interests in a Permitted Business, the making of a capital expenditure or the acquisition of other long-term assetsany FLNG2 Subsidiaries, in each case, used or useful in case to any entity other than a Permitted Business. Pending the final application of any such Net Proceeds, the Company may temporarily reduce Senior Debt or otherwise invest such Net Proceeds in any manner Wholly-Owned Restricted Subsidiary that is not prohibited by this Indenturea Guarantor; provided that such Guarantor satisfies the requirements of Sections 5.10. Any Net Proceeds from Asset Sales that are not applied Prior to the Completion Date, each FLNG2 Subsidiary shall be, directly or invested as provided in the first sentence of this paragraph shall be deemed to constitute "Excess Proceeds." When the aggregate amount of Excess Proceeds exceeds $10.0 millionindirectly, the Company shall be required to make an offer to all Holders of Notes and all holders of other pari passu Indebtedness containing provisions similar to those set forth in this Indenture with respect to offers to purchase or redeem such other pari passu Indebtedness with the proceeds of sales of assets (an "Asset Sale Offer") to purchase the maximum principal amount of Notes and such other pari passu Indebtedness that may be purchased out of the Excess Proceeds at an offer price in cash in an amount equal to 100% of owned by the principal amount thereof, plus accrued and unpaid interest and Liquidated Damages, if any, thereon to the date of purchase, in accordance with the procedures set forth in this Indenture and in such other pari passu Indebtedness. To the extent that the aggregate amount of Notes and such other pari passu Indebtedness tendered pursuant to an Asset Sale Offer is less than the Excess Proceeds, the Company may use any remaining Excess Proceeds for any purpose not otherwise prohibited by this Indenture. If the aggregate principal amount of Notes and such other pari passu Indebtedness surrendered by Holders thereof exceeds the amount of Excess Proceeds, the Trustee shall select the Notes and such other pari passu Indebtedness to be purchased on a pro rata basis. Upon completion of an Asset Sale Offer, the amount of Excess Proceeds shall be reset at zeroBorrower.
Appears in 2 contracts
Sources: Credit Agreement (New Fortress Energy Inc.), Credit Agreement (New Fortress Energy Inc.)
Asset Sales. The Company shall not, and shall not permit any of its Restricted Subsidiaries to, consummate an Asset Sale unless (i) the Company or such Restricted Subsidiary, as the case may be, receives consideration at the time of such Asset Sale at least equal to the fair market value (evidenced by a resolution of the Board of Directors Managers set forth in an Officers' Certificate delivered to the Trustee) of the assets or Equity Interests issued or sold or otherwise disposed of and (ii) at least 75% of the consideration therefor received by the Company or such Restricted Subsidiary Subsidiary, as the case may be, is in the form of cash or Cash Equivalents; provided that the amount of (ax) any liabilities (as shown on the Company's or such Restricted Subsidiary's most recent balance sheet) of the Company or such any Restricted Subsidiary (other than contingent liabilities and liabilities that are by their terms subordinated to the Notes or any guarantee thereof) that are assumed by the transferee of any such assets pursuant to a customary novation agreement that releases the Company or such Restricted Subsidiary from further liability, liability and (by) any securities, notes or other obligations received by the Company or any such Restricted Subsidiary from such transferee that are immediately converted by the Company or such Restricted Subsidiary into cash (to the extent of the cash received) and (c) escrowed cash that the Company reasonably believes will be released from escrow within 365 days from the date of consummation of such Asset Sale, in each case shall be deemed to be cash for purposes of this provision. Notwithstanding the immediately preceding paragraph, the Company and its Restricted Subsidiaries will shall be permitted to consummate an Asset Sale without complying with such the prior paragraph if (i) the Company or the applicable Restricted Subsidiary, as the case may be, receives consideration at the time of such Asset Sale at least equal to the fair market value of the assets or other property sold, issued or otherwise disposed of (as evidenced by a resolution of the Company's Board of Directors Managers set forth in an Officers' Certificate delivered to the Trustee) and (ii) at least 75% of the consideration for such Asset Sale constitutes a controlling interest in a Permitted Business, long-term assets used or useful in a Permitted Business and/or cash or Cash Equivalents; provided that any cash or Cash Equivalents received by the Company or any of its Restricted Subsidiaries in connection with any Asset Sale permitted to be consummated under this paragraph shall constitute Net Proceeds subject to the provisions of the next succeeding paragraph. Within 365 days of after the receipt of any Net Proceeds from an Asset Sale, the Company may apply such Net Proceeds, at its option, (i) to repay Senior Debt under a Credit Facility (and to correspondingly reduce commitments with respect thereto and, in the case of any Senior Debt under any revolving borrowings) or credit facility, effect a corresponding commitment reduction under such credit facility, (ii) to the acquisition of a controlling interest in a Permitted Business, the making of a capital expenditure or the acquisition of other long-term assets, in each case, used Additional Assets or useful in (iii) a Permitted Businesscombination of prepayment and investment permitted by the forgoing clauses (i) and (ii). Pending the final application of any such Net Proceeds, the Company may temporarily reduce Senior Debt revolving credit borrowings or otherwise invest such Net Proceeds in any manner that is not prohibited by this Indenture. Any Net Proceeds from Asset Sales that are not applied or invested as provided in the first sentence of this paragraph shall will be deemed to constitute "Excess Proceeds." When the aggregate amount of Excess Proceeds exceeds $10.0 million, the Company shall Issuers will be required to make an offer to all Holders of Notes and all holders of other pari passu Indebtedness containing provisions similar to those set forth in this Indenture with respect to offers to purchase or redeem such other pari passu Indebtedness with the proceeds of sales of assets (an "Asset Sale Offer") to purchase the maximum principal amount of Notes and such other pari passu Indebtedness that may be purchased out of the Excess Proceeds Proceeds, at an offer price in cash in an amount equal to 100% of the principal amount thereof, thereof plus accrued and unpaid interest and Liquidated DamagesDamages thereon, if any, thereon to the date of purchase, in accordance with the procedures set forth in this Indenture (the first date the aggregate of all such Net Proceeds is equal to $10.0 million or more shall be deemed an "Asset Sale Offer Trigger Date"). Each Asset Sale Offer will be mailed to the record Holders as shown on the register of Holders within 25 days following the Asset Sale Offer Trigger Date, with a copy to the Trustee, and shall comply with the procedures set forth in such other pari passu Indebtednessthis Indenture. Upon receiving notice of the Asset Sale Offer, Holders may elect to tender their Notes in whole or in part in integral multiples of $1,000 in exchange for cash. To the extent that the aggregate amount any Excess Proceeds remain after consummation of Notes and such other pari passu Indebtedness tendered pursuant to an Asset Sale Offer is less than the Excess ProceedsOffer, the Company may use any remaining such Excess Proceeds for any purpose not otherwise prohibited by this Indenture. If the aggregate principal amount of Notes and tendered into such other pari passu Indebtedness Asset Sale Offer surrendered by Holders thereof exceeds the amount of Excess Proceeds, the Trustee shall select the Notes and such other pari passu Indebtedness to be purchased among the Holders of the Notes in compliance with the requirements of the principal national securities exchange, if any, on which the Notes are listed or, if the Notes are not so listed, on a pro rata basis, by lot or in accordance with any other method the Trustee considers fair and appropriate. Upon completion of an Asset Sale Offersuch offer to purchase, the amount of Excess Proceeds shall be reset at zero. The Issuers shall comply with the requirements of Rule 14e-1 under the Exchange Act and any other securities laws and regulations thereunder to the extent such laws and regulations are applicable in connection with the repurchase of Notes pursuant to an Asset Sale Offer. To the extent that the provisions of any securities laws or regulations conflict with the Asset Sale provisions of this Indenture, the Issuers shall comply with the applicable securities laws and regulations and shall not be deemed to have breached their obligations under the Asset Sale provisions of this Indenture by virtue thereof.
Appears in 2 contracts
Sources: Indenture (Alliance Laundry Holdings LLC), Indenture (Alliance Laundry Holdings LLC)
Asset Sales. (i) The Company shall not, and shall not permit any of its Restricted Subsidiaries to, consummate an Asset Sale unless unless:
(i) the Company or such Restricted Subsidiary, as the case may be, receives consideration at the time of such Asset Sale at least equal to the fair market value (evidenced by a resolution of the Board of Directors set forth in an Officers' Certificate delivered to the Trustee) of the assets or Equity Interests issued or sold or otherwise disposed of and (ii) at least 75% of the consideration therefor received by the Company or such Restricted Subsidiary is in the form of cash or Cash Equivalents; provided that the amount of (a) any liabilities (as shown on the Company's or such Restricted Subsidiary's most recent balance sheet) of the Company or such Restricted Subsidiary (other than contingent liabilities and liabilities that are by their terms subordinated to the Notes or any guarantee thereof) that are assumed by the transferee of any such assets pursuant to a customary novation agreement that releases the Company or such Restricted Subsidiary from further liability, (b) any securities, notes or other obligations received by the Company or such Restricted Subsidiary from such transferee that are immediately converted by the Company or such Restricted Subsidiary into cash (to the extent of the cash received) and (c) escrowed cash that the Company reasonably believes will be released from escrow within 365 days from the date of consummation of such Asset Sale, in each case shall be deemed to be cash for purposes of this provision. Notwithstanding the immediately preceding paragraph, the Company and its Restricted Subsidiaries will be permitted to consummate an Asset Sale without complying with such paragraph if (iA) the Company or the applicable Restricted Subsidiary, as the case may be, receives consideration at the time of such the Asset Sale at least equal to the fair market value Fair Market Value of the assets or other property sold, issued sold or otherwise disposed of; and
(B) except in the case of (as evidenced by a resolution of the Company's Board of Directors set forth in an Officers' Certificate delivered to the Trustee) and (ii) Permitted Asset Swap, at least 7580% of the consideration received for the assets sold by the Company or the Restricted Subsidiary, as the case may be, in the Asset Sale shall be in the form of cash and Cash Equivalents.
(ii) The Company or such Restricted Subsidiary, as the case may be, may apply the Net Cash Proceeds of any such Asset Sale constitutes a controlling interest in a Permitted Businesswithin 365 days of the receipt thereof to:
(A) purchase property, long-term assets plant or equipment (excluding working capital for the avoidance of doubt) to be used by the Company or useful such Restricted Subsidiary in a Permitted Business and/or (“Replacement Assets”); or
(B) purchase Capital Stock of a Person engaged solely in a Permitted Business from a Person other than the Company and its Restricted Subsidiaries, which Person shall not have any Liens on its assets or property upon purchase other than Permitted Liens and which Person shall become, upon purchase, a Restricted Subsidiary; provided, that the Company shall deposit, or shall cause the Restricted Subsidiary, as the case may be, to deposit, any Net Cash Proceeds from an Asset Sale in excess of U.S.$18,000,000 in a blocked, interest bearing cash collateral account subject to a first-priority Lien securing the Notes pending application of it in accordance with this Section 3.7 and upon application of any Net Cash Proceeds from an Asset Sale of Collateral shall cause any Replacement Collateral received or purchased in connection with such an Asset Sale of Collateral to be subject to a first-priority Lien securing the Notes and constitute Collateral for all purposes hereunder. Any Net Cash Proceeds in the interest bearing cash collateral account shall be maintained in the form of cash and Cash Equivalents; provided , and any interest thereon shall be payable to the Company or the Restricted Subsidiary, as the case may be.
(iii) Any Net Cash Proceeds of an Asset Sale that are not applied by the Company or a Restricted Subsidiary, as the case may be, within the 365-day period from the receipt thereof shall be applied to make an Asset Sale Offer in accordance with the terms set forth below in Section 3.7(c).
(iv) Notwithstanding Section 3.7(a), the Company shall cause any cash assets or Cash Equivalents property received by the Company or any Restricted Subsidiary in respect of its Restricted Subsidiaries in connection with any a Permitted Asset Sale permitted Swap to be consummated under this paragraph shall constitute Net Proceeds Replacement Collateral subject to the provisions of the next succeeding paragraph. Within 365 days of the receipt of any Net Proceeds from an Asset Sale, the Company may apply such Net Proceeds, at its option, (i) to repay Senior Debt under a Credit Facility (and to correspondingly reduce commitments with respect thereto in the case of revolving borrowings) or (ii) to the acquisition of a controlling interest in a Permitted Business, the making of a capital expenditure or the acquisition of other longfirst-term assets, in each case, used or useful in a Permitted Business. Pending the final application of any such Net Proceeds, the Company may temporarily reduce Senior Debt or otherwise invest such Net Proceeds in any manner that is not prohibited by this Indenture. Any Net Proceeds from Asset Sales that are not applied or invested as provided in the first sentence of this paragraph shall be deemed to constitute "Excess Proceeds." When the aggregate amount of Excess Proceeds exceeds $10.0 million, the Company shall be required to make an offer to all Holders of Notes and all holders of other pari passu Indebtedness containing provisions similar to those set forth in this Indenture with respect to offers to purchase or redeem such other pari passu Indebtedness with the proceeds of sales of assets (an "Asset Sale Offer") to purchase the maximum principal amount of Notes and such other pari passu Indebtedness that may be purchased out of the Excess Proceeds at an offer price in cash in an amount equal to 100% of the principal amount thereof, plus accrued and unpaid interest and Liquidated Damages, if any, thereon to the date of purchase, in accordance with the procedures set forth in this Indenture and in such other pari passu Indebtedness. To the extent that the aggregate amount of Notes and such other pari passu Indebtedness tendered pursuant to an Asset Sale Offer is less than the Excess Proceeds, the Company may use any remaining Excess Proceeds for any purpose not otherwise prohibited by this Indenture. If the aggregate principal amount of Notes and such other pari passu Indebtedness surrendered by Holders thereof exceeds the amount of Excess Proceeds, the Trustee shall select priority Lien securing the Notes and such other pari passu Indebtedness to be purchased on a pro rata basis. Upon completion of an Asset Sale Offer, the amount of Excess Proceeds shall be reset at zeroconstitute Collateral for all purposes hereunder.
Appears in 2 contracts
Sources: Indenture (Iusacell S a De C V), Indenture (Mexican Cellular Investments Inc)
Asset Sales. (i) The Company shall not, and shall not permit any of its Restricted Subsidiaries to, consummate an Asset Sale unless unless:
(i) the Company or such Restricted Subsidiary, as the case may be, receives consideration at the time of such Asset Sale at least equal to the fair market value (evidenced by a resolution of the Board of Directors set forth in an Officers' Certificate delivered to the Trustee) of the assets or Equity Interests issued or sold or otherwise disposed of and (ii) at least 75% of the consideration therefor received by the Company or such Restricted Subsidiary is in the form of cash or Cash Equivalents; provided that the amount of (a) any liabilities (as shown on the Company's or such Restricted Subsidiary's most recent balance sheet) of the Company or such Restricted Subsidiary (other than contingent liabilities and liabilities that are by their terms subordinated to the Notes or any guarantee thereof) that are assumed by the transferee of any such assets pursuant to a customary novation agreement that releases the Company or such Restricted Subsidiary from further liability, (b) any securities, notes or other obligations received by the Company or such Restricted Subsidiary from such transferee that are immediately converted by the Company or such Restricted Subsidiary into cash (to the extent of the cash received) and (c) escrowed cash that the Company reasonably believes will be released from escrow within 365 days from the date of consummation of such Asset Sale, in each case shall be deemed to be cash for purposes of this provision. Notwithstanding the immediately preceding paragraph, the Company and its Restricted Subsidiaries will be permitted to consummate an Asset Sale without complying with such paragraph if (iA) the Company or the applicable Restricted Subsidiary, as the case may be, receives consideration at the time of such the Asset Sale at least equal to the fair market value Fair Market Value of the assets or other property sold, issued sold or otherwise disposed of; and
(B) except in the case of (as evidenced by a resolution of the Company's Board of Directors set forth in an Officers' Certificate delivered to the Trustee) and (ii) Permitted Asset Swap, at least 7580% of the consideration received for the assets sold by the Company or the Restricted Subsidiary, as the case may be, in the Asset Sale shall be in the form of cash and Cash Equivalents.
(ii) The Company or such Restricted Subsidiary, as the case may be, may apply the Net Cash Proceeds of any such Asset Sale constitutes a controlling interest in a Permitted Businesswithin 365 days of the receipt thereof to:
(A) purchase property, long-term assets plant or equipment (excluding working capital for the avoidance of doubt) to be used by the Company or useful such Restricted Subsidiary in a Permitted Business and/or (“Replacement Assets”);
(B) purchase Capital Stock of a Person engaged solely in a Permitted Business from a Person other than the Company and its Restricted Subsidiaries, which Person shall not have any Liens on its assets or property upon purchase other than Permitted Liens and which Person shall become, upon purchase, a Restricted Subsidiary; or
(C) prepay, repay, redeem, repurchase or retire any Indebtedness for borrowed money or constituting a Capitalized Lease Obligation or Attributable Indebtedness in respect of Sale and Leaseback Transactions (other than Subordinated Indebtedness) and permanently reduce the commitments, if any, with respect thereto; provided, that the Company shall deposit, or shall cause the Restricted Subsidiary, as the case may be, to deposit, any Net Cash Proceeds from an Asset Sale in excess of U.S.$20,000,000 in a blocked, interest bearing cash collateral account subject to a second-priority Lien securing the Notes pending application of it in accordance with this Section 3.7 and upon application of any Net Cash Proceeds from an Asset Sale of Collateral shall cause any Replacement Collateral received or purchased in connection with such an Asset Sale of Collateral to be subject to a second-priority Lien securing the Notes and constitute Collateral for all purposes hereunder. Any Net Cash Proceeds in the interest bearing cash collateral account shall be maintained in the form of cash and Cash Equivalents; provided , and any interest thereon shall be payable to the Company or the Restricted Subsidiary, as the case may be.
(iii) Any Net Cash Proceeds of an Asset Sale that are not applied by the Company or a Restricted Subsidiary, as the case may be, within the 365-day period from the receipt thereof shall be applied to make an Asset Sale Offer in accordance with the terms set forth below in Section 3.7(c).
(iv) Notwithstanding Section 3.7(a), the Company shall cause any cash assets or Cash Equivalents property received by the Company or any Restricted Subsidiary in respect of its Restricted Subsidiaries in connection with any a Permitted Asset Sale permitted Swap to be consummated under this paragraph shall constitute Net Proceeds Replacement Collateral subject to the provisions of the next succeeding paragraph. Within 365 days of the receipt of any Net Proceeds from an Asset Sale, the Company may apply such Net Proceeds, at its option, (i) to repay Senior Debt under a Credit Facility (and to correspondingly reduce commitments with respect thereto in the case of revolving borrowings) or (ii) to the acquisition of a controlling interest in a Permitted Business, the making of a capital expenditure or the acquisition of other longsecond-term assets, in each case, used or useful in a Permitted Business. Pending the final application of any such Net Proceeds, the Company may temporarily reduce Senior Debt or otherwise invest such Net Proceeds in any manner that is not prohibited by this Indenture. Any Net Proceeds from Asset Sales that are not applied or invested as provided in the first sentence of this paragraph shall be deemed to constitute "Excess Proceeds." When the aggregate amount of Excess Proceeds exceeds $10.0 million, the Company shall be required to make an offer to all Holders of Notes and all holders of other pari passu Indebtedness containing provisions similar to those set forth in this Indenture with respect to offers to purchase or redeem such other pari passu Indebtedness with the proceeds of sales of assets (an "Asset Sale Offer") to purchase the maximum principal amount of Notes and such other pari passu Indebtedness that may be purchased out of the Excess Proceeds at an offer price in cash in an amount equal to 100% of the principal amount thereof, plus accrued and unpaid interest and Liquidated Damages, if any, thereon to the date of purchase, in accordance with the procedures set forth in this Indenture and in such other pari passu Indebtedness. To the extent that the aggregate amount of Notes and such other pari passu Indebtedness tendered pursuant to an Asset Sale Offer is less than the Excess Proceeds, the Company may use any remaining Excess Proceeds for any purpose not otherwise prohibited by this Indenture. If the aggregate principal amount of Notes and such other pari passu Indebtedness surrendered by Holders thereof exceeds the amount of Excess Proceeds, the Trustee shall select priority Lien securing the Notes and such other pari passu Indebtedness to be purchased on a pro rata basis. Upon completion of an Asset Sale Offer, the amount of Excess Proceeds shall be reset at zeroconstitute Collateral for all purposes hereunder.
Appears in 2 contracts
Sources: Indenture (Iusacell S a De C V), Indenture (Inmobiliaria Montes Urales 460 S a De C V)
Asset Sales. The Company shall not, and shall not permit any of its Restricted Subsidiaries to, directly or indirectly, consummate an any Asset Sale unless unless, (i) the Company (or such Restricted Subsidiary, as the case may be, ) receives consideration at the time of such Asset Sale at least equal to the fair market value (evidenced as determined in good faith by a resolution of the Board of Directors (including as to the value of all noncash consideration) and set forth in an Officers' Officer's Certificate delivered to the Trustee) of the assets or Equity Interests issued or sold or otherwise disposed of and (ii) at least 75% of the consideration therefor received by the Company or such Restricted Subsidiary is in the form of cash or and/or Cash Equivalents; provided , and (iii) the Net Proceeds received by the Company (or such Restricted Subsidiary, as the case may be) from such Asset Sale are applied within 360 days following the receipt of such Net Proceeds (a) first, to the extent the Company (or such Restricted Subsidiary, as the case may be) elects, to the redemption or repurchase of outstanding Indebtedness incurred pursuant to clauses (d) and (e) of the second paragraph of Section 4.09 hereof and (b) second, to the extent of the balance of such Net Proceeds after application as described in (a) above and to the extent the Company (or such Restricted Subsidiary, as the case may be) elects, to reinvest, or enter into a legally binding agreement to reinvest, such Net Proceeds (or any portion thereof) in assets that are used or useful in a Permitted Business. The balance of such Net Proceeds, after the application of such Net Proceeds as described in the immediately preceding clauses (a) and (b), shall constitute "Excess Proceeds." When the aggregate amount of Excess Proceeds equals or exceeds $15.0 million (taking into account income earned on such Excess Proceeds), the Company will be required to make an offer to all Holders of Notes and pari passu Indebtedness (an "Asset Sale Offer") to purchase the maximum principal amount of Notes and pari passu Indebtedness that may be purchased out of the Excess Proceeds, at a purchase 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 Article 3 of this Indenture and the agreements governing such pari passu Indebtedness. To the extent that any Excess Proceeds remain after consummation of an Asset Sale Offer, the Company may use such Excess Proceeds for any purpose not otherwise prohibited by this Indenture. If the aggregate principal amount of Notes and pari passu Indebtedness tendered into such Asset Sale Offer surrendered by Holders thereof exceeds the amount of Excess Proceeds, the Trustee shall select the Notes and pari passu Indebtedness to be purchased on a pro rata basis. Upon completion of such Asset Sale Offer, the amount of Excess Proceeds shall be reset at zero for purposes of the first sentence of this paragraph. The amount of (ax) any liabilities (as shown on the Company's (or such Restricted Subsidiary's 's, as the case may be) most recent balance sheet) of the Company or such any Restricted Subsidiary (other than contingent liabilities and liabilities that are by their terms subordinated to the Notes or any guarantee thereof) that are assumed by the transferee of any such assets pursuant to a customary novation an agreement that releases the Company or such any Restricted Subsidiary from further liabilityall liability in respect thereof, (by) 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 the principal amount of such Indebtedness in connection with such Asset Sale and (z) any securities, notes or other obligations received by the Company (or such Restricted Subsidiary from such transferee that are immediately converted by the Company or such Restricted Subsidiary into cash (to the extent of the cash received) and (c) escrowed cash that the Company reasonably believes will be released from escrow within 365 days from the date of consummation of such Asset Sale, in each case shall be deemed to be cash for purposes of this provision. Notwithstanding the immediately preceding paragraph, the Company and its Restricted Subsidiaries will be permitted to consummate an Asset Sale without complying with such paragraph if (i) the Company or the applicable Restricted Subsidiary, as the case may be, receives consideration at the time of ) from such Asset Sale at least equal transferee that are contemporaneously (subject to the fair market value of the assets or other property sold, issued or otherwise disposed of (as evidenced by a resolution of the Company's Board of Directors set forth in an Officers' Certificate delivered to the Trusteeordinary settlement periods) and (ii) at least 75% of the consideration for such Asset Sale constitutes a controlling interest in a Permitted Business, long-term assets used or useful in a Permitted Business and/or cash or Cash Equivalents; provided that any cash or Cash Equivalents received converted by the Company (or any of its such Restricted Subsidiaries in connection with any Asset Sale permitted to be consummated under this paragraph shall constitute Net Proceeds subject Subsidiary, as the case may be) into cash and/or Cash Equivalents (to the provisions extent of the next succeeding paragraph. Within 365 days of the receipt of any Net Proceeds from an Asset Salecash and/or Cash Equivalents received), the Company may apply such Net Proceeds, at its option, (i) to repay Senior Debt under a Credit Facility (and to correspondingly reduce commitments with respect thereto in the case of revolving borrowings) or (ii) to the acquisition of a controlling interest in a Permitted Business, the making of a capital expenditure or the acquisition of other long-term assets, in each case, used or useful in a Permitted Business. Pending the final application of any such Net Proceeds, the Company may temporarily reduce Senior Debt or otherwise invest such Net Proceeds in any manner that is not prohibited by this Indenture. Any Net Proceeds from Asset Sales that are not applied or invested as provided in the first sentence of this paragraph shall will be deemed to constitute "Excess Proceeds." When the aggregate amount be cash and/or Cash Equivalents for purposes of Excess Proceeds exceeds $10.0 million, the Company shall be required to make an offer to all Holders of Notes and all holders of other pari passu Indebtedness containing provisions similar to those set forth in this Indenture with respect to offers to purchase or redeem such other pari passu Indebtedness with the proceeds of sales of assets (an "Asset Sale Offer") to purchase the maximum principal amount of Notes and such other pari passu Indebtedness that may be purchased out of the Excess Proceeds at an offer price in cash in an amount equal to 100% of the principal amount thereof, plus accrued and unpaid interest and Liquidated Damages, if any, thereon to the date of purchase, in accordance with the procedures set forth in this Indenture and in such other pari passu Indebtednessprovision. To the extent that the aggregate amount provisions of Notes and such other pari passu Indebtedness tendered pursuant to an any securities laws or regulations conflict with the Asset Sale Offer is less than the Excess Proceedsprovisions of this Indenture, the Company may use any remaining Excess Proceeds for any purpose shall comply with the applicable securities laws and regulations and shall not otherwise prohibited by this Indenture. If be deemed to have breached its obligations under the aggregate principal amount of Notes and such other pari passu Indebtedness surrendered by Holders thereof exceeds the amount of Excess Proceeds, the Trustee shall select the Notes and such other pari passu Indebtedness to be purchased on a pro rata basis. Upon completion of an Asset Sale Offer, the amount provisions of Excess Proceeds shall be reset at zerothis Indenture by virtue thereof.
Appears in 2 contracts
Sources: Indenture (Global Crossing LTD), Indenture (Global Crossing LTD LDC)
Asset Sales. The Company shall will not, and shall will not permit any of its Restricted Subsidiaries Subsidiary to, consummate any Asset Sale, unless, after giving effect to such proposed Asset Sale, the aggregate value of all assets of the Company and its Subsidiaries (valued at the greater of net book value or fair value) that were the subject of an Asset Sale unless during the period commencing on the first day of the then current Fiscal Year of the Company and ending on the date of such proposed Asset Sale does not exceed 10% of Consolidated Total Assets determined as at the last day of the then most recently ended Fiscal Year of the Company preceding such Asset Sale; provided, however, that for purposes of the foregoing calculation above, there shall not be included the value of any assets which were the subject of an Asset Sale if the Net Proceeds from such Asset Sale are applied by the Company within 360 days after the receipt of such Net Proceeds either (i) to make an investment in Additional Assets having a fair market value (as determined in good faith by the Company or such Restricted Subsidiary, as Board of Directors of the case may be, receives consideration at the time of such Asset Sale Company) at least equal to the fair market value (evidenced by a resolution of the Board of Directors set forth in an Officers' Certificate delivered to the Trustee) that of the assets or Equity Interests issued or sold or otherwise so disposed of and (ii) at least 75% of the consideration therefor received by the Company or such Restricted Subsidiary is in the form of cash or Cash Equivalents; provided that the amount of (a) any liabilities (as shown on the Company's or such Restricted Subsidiary's most recent balance sheet) of the Company or such Restricted Subsidiary (other than contingent liabilities and liabilities that are by their terms subordinated to the Notes or any guarantee thereof) that are assumed by the transferee of any such assets pursuant to a customary novation agreement that releases the Company or such Restricted Subsidiary from further liabilityof, (b) any securities, notes or other obligations received by the Company or such Restricted Subsidiary from such transferee that are immediately converted by the Company or such Restricted Subsidiary into cash (to the extent of the cash received) and (c) escrowed cash that the Company reasonably believes will be released from escrow within 365 days from the date of consummation of such Asset Sale, in each case shall be deemed to be cash for purposes of this provision. Notwithstanding the immediately preceding paragraph, the Company and its Restricted Subsidiaries will be permitted to consummate an Asset Sale without complying with such paragraph if (i) the Company or the applicable Restricted Subsidiary, as the case may be, receives consideration at the time of such Asset Sale at least equal to the fair market value of the assets or other property sold, issued or otherwise disposed of (as evidenced by a resolution of the Company's Board of Directors set forth in an Officers' Certificate delivered to the Trustee) and (ii) at least 75% of the consideration for such Asset Sale constitutes a controlling interest in a Permitted Business, long-term assets used or useful in a Permitted Business and/or cash or Cash Equivalents; provided that any cash or Cash Equivalents received by the Company or any of its Restricted Subsidiaries in connection with any Asset Sale permitted to be consummated under this paragraph shall constitute Net Proceeds subject to the provisions of the next succeeding paragraph. Within 365 days of the receipt of any Net Proceeds from an Asset Sale, the Company may apply such Net Proceeds, at its option, (i) to repay Senior Debt under a Credit Facility (and to correspondingly reduce commitments with respect thereto in the case of revolving borrowings) or (ii) to the acquisition repayment or prepayment of a controlling interest unsubordinated Indebtedness of the Company (other than (x) Indebtedness owing by the Company to any of its Subsidiaries or any Affiliate and (y) Indebtedness in a Permitted Businessrespect of any revolving credit or similar facility providing the Company or any such Subsidiary with the right to obtain loans or other extensions of credit from time to time, unless in connection with such payment of Indebtedness, the making availability of a capital expenditure or the acquisition of other long-term assets, in each case, used or useful in a Permitted Business. Pending the final application of any credit under such Net Proceeds, the Company may temporarily reduce Senior Debt or otherwise invest such Net Proceeds in any manner that credit facility is not prohibited permanently reduced by this Indenture. Any Net Proceeds from Asset Sales that are not applied or invested as provided in the first sentence of this paragraph shall be deemed to constitute "Excess Proceeds." When the aggregate amount of Excess Proceeds exceeds $10.0 million, the Company shall be required to make an offer to all Holders of Notes and all holders of other pari passu Indebtedness containing provisions similar to those set forth in this Indenture with respect to offers to purchase or redeem such other pari passu Indebtedness with the proceeds of sales of assets (an "Asset Sale Offer") to purchase the maximum principal amount of Notes and such other pari passu Indebtedness that may be purchased out of the Excess Proceeds at an offer price in cash in an amount equal to 100% of the principal amount thereof, plus accrued and unpaid interest and Liquidated Damages, if any, thereon to the date of purchase, in accordance with the procedures set forth in this Indenture and in such other pari passu Indebtedness. To the extent that the aggregate amount of Notes and such other pari passu Indebtedness tendered pursuant to an Asset Sale Offer is not less than the Excess Proceeds, the Company may use any remaining Excess Proceeds for any purpose not otherwise prohibited by this Indenture. If the aggregate principal amount of Notes and such other pari passu Indebtedness surrendered by Holders thereof exceeds proceeds applied to the amount payment of Excess Proceeds, the Trustee shall select the Notes and such other pari passu Indebtedness to be purchased on a pro rata basis. Upon completion of an Asset Sale Offer, the amount of Excess Proceeds shall be reset at zeroIndebtedness).
Appears in 2 contracts
Sources: Note Purchase Agreement (Tampa Electric Co), Note Purchase Agreement (Tampa Electric Co)
Asset Sales. (a) The Company shall notBorrowers and their respective Restricted Subsidiaries (other than FNANB) will not sell, and shall not permit transfer, lease or otherwise dispose of any asset, including any capital stock (other than capital stock of the Lead Borrower), nor will the Borrowers (other than the Lead Borrower) issue any additional shares of its Restricted Subsidiaries tocapital stock or other ownership interest in such Borrower, consummate an Asset Sale unless except:
(i) (A) sales of Inventory and other assets in the Company ordinary course of business; and
(ii) sales, transfers and dispositions among the Borrowers and their respective Subsidiaries (excluding, however, any sales, transfers and dispositions of Inventory or proceeds thereof, from any Borrower except to another Borrower), provided that any such Restricted Subsidiarysales, transfers or dispositions involving a Subsidiary that is not a Borrower shall be made in compliance with Section 6.07; and
(iii) sales and disposition of Subsidiaries of the Lead Borrower which are not Subsidiary Borrowers, provided that no Default or Event of Default then exists or would arise therefrom; and
(iv) sales and transfers made pursuant in connection with Permitted Securitization Transactions; and
(v) other sales, transfers, or dispositions of assets not in the ordinary course of business in connection with any store closings provided that (x) no Default or Event of Default then exists or would arise therefrom, and (y) no such sale, transfer or disposition shall be made if, after giving effect thereto, the aggregate number of remaining stores (including new or relocated stores) of the Borrowers operating in the ordinary course of business would be less than seventy-five percent (75%) of the number of stores of the Borrowers in existence as of the case may beClosing Date, receives consideration at and (z) if Capped Availability immediately prior, or after giving effect, to such sale would be less than $100,000,000, the time purchase price for any Inventory and Accounts so sold, transferred or disposed of such Asset Sale shall be at least equal to the fair market value amounts available to be advanced thereon under the Borrowing Base; and
(evidenced by a resolution vi) other sales, transfers, or dispositions of assets not constituting Collateral, provided that (x) no Default or Event of Default then exists or would arise therefrom, and (y) such sales, transfers or dispositions shall not exceed $50,000,000 in the aggregate in any fiscal year of the Board of Directors set forth in an Officers' Certificate delivered to the Trustee) of the assets or Equity Interests issued or sold or otherwise disposed of and (ii) at least 75% of the consideration therefor received by the Company or such Restricted Subsidiary is in the form of cash or Cash Equivalents; Borrowers. provided that the amount of (a) any liabilities (as shown on the Company's or such Restricted Subsidiary's most recent balance sheet) of the Company or such Restricted Subsidiary all sales, transfers, leases and other dispositions permitted hereby (other than contingent liabilities sales, transfers and liabilities that are by their terms subordinated to the Notes or any guarantee thereofother disposition permitted under clause (ii)) that are assumed by the transferee of any such assets pursuant to a customary novation agreement that releases the Company or such Restricted Subsidiary from further liability, (b) any securities, notes or other obligations received by the Company or such Restricted Subsidiary from such transferee that are immediately converted by the Company or such Restricted Subsidiary into cash (to the extent of the cash received) and (c) escrowed cash that the Company reasonably believes will be released from escrow within 365 days from the date of consummation of such Asset Sale, in each case shall be deemed to be cash made at arm's length and for purposes of this provision. Notwithstanding the immediately preceding paragraph, the Company fair value and its Restricted Subsidiaries will be permitted to consummate an Asset Sale without complying with such paragraph if (i) the Company or the applicable Restricted Subsidiary, as the case may be, receives consideration at the time of such Asset Sale at least equal to the fair market value of the assets or other property sold, issued or otherwise disposed of (as evidenced by a resolution of the Company's Board of Directors set forth in an Officers' Certificate delivered to the Trustee) and (ii) at least 75% of the consideration for such Asset Sale constitutes a controlling interest in a Permitted Business, long-term assets used or useful in a Permitted Business and/or cash or Cash Equivalents; provided that any cash or Cash Equivalents received by the Company or any of its Restricted Subsidiaries in connection with any Asset Sale permitted to be consummated under this paragraph shall constitute Net Proceeds subject to the provisions of the next succeeding paragraph. Within 365 days of the receipt of any Net Proceeds from an Asset Sale, the Company may apply such Net Proceeds, at its option, (i) to repay Senior Debt under a Credit Facility (and to correspondingly reduce commitments with respect thereto in the case of revolving borrowings) or (ii) to the acquisition of a controlling interest in a Permitted Business, the making of a capital expenditure or the acquisition of other long-term assets, in each case, used or useful in a Permitted Business. Pending the final application of any such Net Proceeds, the Company may temporarily reduce Senior Debt or otherwise invest such Net Proceeds in any manner that is not prohibited by this Indenture. Any Net Proceeds from Asset Sales that are not applied or invested as provided in the first sentence of this paragraph shall be deemed to constitute "Excess Proceeds." When the aggregate amount of Excess Proceeds exceeds $10.0 million, the Company shall be required to make an offer to all Holders of Notes and all holders of other pari passu Indebtedness containing provisions similar to those set forth in this Indenture with respect to offers to purchase or redeem such other pari passu Indebtedness with the proceeds of sales of assets Inventory and Accounts, solely for cash consideration (an "Asset Sale Offer") to purchase the maximum principal amount of Notes and such other pari passu Indebtedness that may be purchased out of the Excess Proceeds at an offer price in cash in an amount equal to 100% of the principal amount thereof, plus accrued and unpaid interest and Liquidated Damages, if any, thereon to the date of purchase, in accordance with the procedures set forth in this Indenture and in such other pari passu Indebtedness. To the extent that the aggregate amount of Notes and such other pari passu Indebtedness tendered pursuant to an Asset Sale Offer is less than the Excess Proceeds, the Company may use any remaining Excess Proceeds for any purpose not otherwise prohibited by this Indenture. If the aggregate principal amount of Notes and such other pari passu Indebtedness surrendered by Holders thereof exceeds the amount of Excess Proceeds, the Trustee which term shall select the Notes and such other pari passu Indebtedness to be purchased on a pro rata basis. Upon completion of an Asset Sale Offer, the amount of Excess Proceeds shall be reset at zeroinclude credit card sales).
Appears in 2 contracts
Sources: Credit Agreement (Circuit City Stores Inc), Credit Agreement (Circuit City Stores Inc)
Asset Sales. The Company shall not, and shall not permit any of its Restricted Subsidiaries to, consummate an Asset Sale unless (i) the Company or such Restricted Subsidiary, as the case may be, receives consideration at the time of such Asset Sale at least equal to the fair market value (evidenced by a resolution of the Board of Directors set forth in an Officers' Certificate delivered to the Trustee) of the assets or Equity Interests of Subsidiaries issued or sold or otherwise disposed of and (ii) at least 75% of the consideration therefor received by the Company or such Restricted Subsidiary is in the form of cash or Cash Equivalentscash; provided that the amount of (a) any liabilities (as shown on the Company's or such Restricted Subsidiary's most recent balance sheet) of the Company or such Restricted Subsidiary (other than contingent liabilities and liabilities that are by their terms subordinated to the Notes or any guarantee thereof) that are assumed by the transferee of any such assets pursuant to a customary novation agreement that releases the Company or such Restricted Subsidiary from further liability, liability and (b) any securities, notes or other obligations received by the Company or such Restricted Subsidiary from such transferee that are immediately converted by the Company or such Restricted Subsidiary into cash (to the extent of the cash received) and (c) escrowed cash that the Company reasonably believes will be released from escrow within 365 days from the date of consummation of such Asset Sale, in each case shall be deemed to be cash for purposes of this provision. Notwithstanding the immediately preceding paragraph, the Company and its Restricted Subsidiaries will be permitted to consummate an Asset Sale without complying with such paragraph if (i) the Company or the applicable Restricted Subsidiary, as the case may be, receives consideration at the time of such Asset Sale at least equal to the fair market value of the assets or other property sold, issued or otherwise disposed of (as evidenced by a resolution of the Company's Board of Directors set forth in an Officers' Certificate delivered to the Trustee) and (ii) at least 75% of the consideration for such Asset Sale constitutes a controlling interest in a Permitted Business, long-term assets used or useful in a Permitted Business and/or cash or Cash Equivalents; provided that any cash or Cash Equivalents received by the Company or any of its Restricted Subsidiaries in connection with any Asset Sale permitted to be consummated under this paragraph shall constitute Net Proceeds subject to the provisions of the next succeeding paragraphSection 4.10. Within 365 270 days of the receipt of any Net Proceeds from an Asset Sale, the Company may apply such Net Proceeds, at its option, (i) to repay Senior Debt under a Credit Facility (and to correspondingly reduce commitments with respect thereto in the case of revolving borrowings) or (ii) to the acquisition of a controlling interest in a Permitted Businessanother business, the making of a capital expenditure or the acquisition of other long-term assets, in each case, used or useful in a Permitted Business. Pending the final application of any such Net Proceeds, the Company may temporarily reduce Senior Debt or otherwise invest such Net Proceeds in any manner that is not prohibited by this Indenture. Any Net Proceeds from Asset Sales that are not applied or invested as provided in the first sentence of this paragraph shall be deemed to constitute "Excess AExcess Proceeds." When the aggregate amount of Excess Proceeds exceeds $10.0 5.0 million, the Company shall be required to make an offer Asset Sale Offer to all Holders of Notes and all holders of other pari passu Indebtedness containing provisions similar to those set forth in this Indenture with respect to offers to purchase or redeem such other pari passu Indebtedness with the proceeds of sales of assets (an "Asset Sale Offer") to purchase the maximum principal amount of Notes and such other pari passu Indebtedness that may be purchased out of the Excess Proceeds at an offer price in cash in an amount equal to 100% of the principal amount thereof, plus accrued and unpaid interest and Liquidated Damages, if any, thereon to the date of purchase, in accordance with the procedures set forth in this Indenture and in such other pari passu IndebtednessSection 3.09 hereof. To the extent that the aggregate amount of Notes and such other pari passu Indebtedness tendered pursuant to an Asset Sale Offer is less than the Excess Proceeds, the Company may use any remaining Excess Proceeds for any purpose not otherwise prohibited by this Indenturegeneral corporate purposes. If the aggregate principal amount of Notes and such other pari passu Indebtedness surrendered by Holders thereof exceeds the amount of Excess Proceeds, the Trustee shall select the Notes and such other pari passu Indebtedness to be purchased on a pro rata basis. Upon completion of an Asset Sale Offer, the amount of Excess Proceeds shall be reset at zero.
Appears in 1 contract
Sources: Indenture (Dyersburg Corp)
Asset Sales. The Company shall not, and shall not permit any of its Restricted Subsidiaries to, consummate an Asset Sale unless (i) If the Company or a Pledged Subsidiary sells a material portion of the property and assets (other than a sale that constitutes a Permitted Disposition) of the Company and its Subsidiaries, taken as a whole, and such Restricted sale does not constitute a Fundamental Change (an “Asset Sale”), then within 360 calendar days after the receipt of the consideration therefor, the Company or a Subsidiary, as at its option, may apply the case may be, receives consideration at the time net cash and Cash Equivalents received in respect of such Asset Sale at least equal (the “Net Proceeds”) (x) to the fair market value (evidenced by a resolution of the Board of Directors set forth in an Officers' Certificate delivered to the Trustee) of the assets or Equity Interests issued or sold or otherwise disposed of and (ii) at least 75% of the consideration therefor received by the Company or such Restricted Subsidiary is make capital expenditures in the form ordinary course of cash or Cash Equivalents; provided that the amount business of (a) any liabilities (as shown on the Company's or such Restricted Subsidiary's most recent balance sheet) of the Company or such Restricted Subsidiary (other than contingent liabilities and liabilities that are by their terms subordinated to the Notes or any guarantee thereof) that are assumed by the transferee of any such assets pursuant to a customary novation agreement that releases the Company or such Restricted Subsidiary from further liability, (b) any securities, notes or other obligations received by the Company or such Restricted Subsidiary from such transferee that are immediately converted by the Company or such Restricted Subsidiary into cash (to the extent of the cash received) and (c) escrowed cash that the Company reasonably believes will be released from escrow within 365 days from the date of consummation of such Asset Sale, in each case shall be deemed to be cash for purposes of this provision. Notwithstanding the immediately preceding paragraph, the Company and its Restricted Subsidiaries will be permitted Subsidiaries, (y) otherwise to consummate an Asset Sale without complying with such paragraph if (i) the Company or the applicable Restricted Subsidiary, as the case may be, receives consideration at the time of such Asset Sale at least equal to the fair market value of the acquire capital assets or other property sold, issued or otherwise disposed of (as evidenced by a resolution of the Company's Board of Directors set forth in an Officers' Certificate delivered to the Trustee) and (ii) at least 75% of the consideration for such Asset Sale constitutes a controlling interest in a Permitted Business, long-term assets that are used or useful in a Permitted Business and/or cash or Cash Equivalents; provided that any cash or Cash Equivalents received by the business of the Company or any of its Restricted Subsidiaries in connection with any Asset Sale or (z) to make a Permitted Investment; provided that a binding commitment to make such expenditure or investment that is made not later than such 360th day shall be treated as such a permitted to be consummated under this paragraph shall constitute application of the Net Proceeds subject to the provisions as of the next succeeding paragraph. Within 365 days date of such commitment so long as the receipt of any Company or a Subsidiary enters into such commitment with the good faith expectation that such Net Proceeds from an Asset Salewill be applied to satisfy such commitment within 180 calendar days after the date such commitment is made and, in the Company may apply event any such Net ProceedsProceeds are not actually so invested in accordance with this subsection (a)(i) by such 180th day, at its option, then such remaining Net Proceeds shall be applied in accordance with subsection (ia)(ii) to repay Senior Debt under a Credit Facility (and to correspondingly reduce commitments with respect thereto in the case of revolving borrowings) or below.
(ii) to the acquisition of a controlling interest in a Permitted Business, the making of a capital expenditure or the acquisition of other long-term assets, in each case, used or useful in a Permitted Business. Pending the final application of any such Net Proceeds, the Company may temporarily reduce Senior Debt or otherwise invest such Net Proceeds in any manner that is not prohibited by this Indenture. Any Net Proceeds from Asset Sales that are not applied or invested as provided in the first sentence of this paragraph subsection (a)(i) above shall be deemed to constitute "“Excess Proceeds." ”. When the aggregate amount of Excess Proceeds exceeds $10.0 1.0 million, the Company shall be required to make an offer to all Holders of Securities (an “Asset Sale Repurchase Offer”) and, if required by the terms of any other Indebtedness that ranks equally with the Notes and in right of payment (“Pari Passu Indebtedness”), to all holders of other pari passu Indebtedness containing provisions similar to those set forth in this Indenture with respect to offers to purchase or redeem such other pari passu Indebtedness with the proceeds of sales of assets (an "Asset Sale Offer") Pari Passu Indebtedness, to purchase the maximum principal amount of Notes Securities and such other pari passu Pari Passu Indebtedness that may can be purchased out with the Excess Proceeds, pro rata in proportion to the respective outstanding principal amounts (together with premium, if any) of the Excess Proceeds at an Securities and such other Pari Passu Indebtedness. The offer price in cash respect of Securities in an amount equal to any Asset Sale Repurchase Offer shall be 100% of the aggregate principal amount thereof, of such Securities plus accrued and unpaid interest and Liquidated Damages, if any, thereon to the date of purchase, subject to the right of the Holders of record on a Record Date to receive interest on the relevant Interest Payment Date in accordance with the procedures set forth in this Indenture and the Notes.
(i) If the Company makes an Asset Sale Repurchase Offer pursuant to subsection (a) above, the Company shall provide to all Holders and the Trustee a notice (the “Asset Sale Notice”) with the following information (if applicable):
(A) the occurrence of an Asset Sale;
(B) that an Asset Sale Repurchase Offer is being made pursuant to this Section 4.15 and the maximum principal amount of the Securities that may be purchased by the Company pursuant to the Asset Sale Repurchase Offer;
(C) the purchase price and the purchase date with respect to Securities purchased by the Company pursuant to the Asset Sale Repurchase Offer, which will be no earlier than 20 Business Days nor later than 35 calendar days from the date such notice is mailed (the “Asset Sale Payment Date”); provided that the Asset Sale Payment Date may be extended in accordance with applicable law;
(D) the name and address of the Paying Agent and the Conversion Agent;
(E) the then current Conversion Rate;
(F) that the Holder shall have the right to withdraw any tendered Securities and the Holder’s election to require the Company to purchase such Securities; provided that the Paying Agent receives, not later than the close of business on the expiration date of the Asset Sale Repurchase Offer, a facsimile transmission or letter setting forth the name of the Holder, the principal amount of Securities tendered for purchase, and a statement that such Holder is withdrawing its tendered Securities and its election to have such Securities purchased;
(G) that unless the Company defaults in the payment of the purchase price therefor, all Securities accepted for payment pursuant to the Asset Sale Repurchase Offer will cease to accrue interest on the Asset Sale Payment Date;
(H) if the Securities to be repurchased are certificated, that the Holders electing to have any Securities purchased pursuant to the Asset Sale Repurchase Offer will be required to surrender such Securities to the Paying Agent at the address specified in the notice prior to the close of business on the third Business Day preceding the Asset Sale Payment Date;
(I) if the Securities to be repurchased are represented by a Global Security, that the Holders electing to have any Securities purchased pursuant to the Asset Sale Repurchase Offer will be required to comply with the appropriate procedures of the Depositary; and
(J) any other pari passu Indebtednessinstructions, as determined by the Company, consistent with the provisions of this Section 4.15, that a Holder must follow.
(ii) The Company shall comply with the requirements of Rule 14e-1 under the Exchange Act and any other securities laws and regulations thereunder to the extent such laws or regulations are applicable in connection with the repurchase of Securities pursuant to a Asset Sale Repurchase Offer. To the extent that the aggregate provisions of any securities laws or regulations conflict with the provisions of this Indenture, the Company will comply with the applicable securities laws and regulations and shall not be deemed to have breached its obligations described in this Indenture by virtue thereof.
(iii) On the Asset Sale Payment Date, the Company shall
(A) accept for payment such principal amount of Notes and such other pari passu Indebtedness the Securities required to be purchased under the Asset Sale Repurchase Offer or portions thereof properly tendered pursuant to an the Asset Sale Offer is less than Repurchase Offer,
(B) at or prior to 11:00 a.m., New York City time, deposit with the Excess ProceedsPaying Agent an amount equal to the aggregate Asset Sale Payment in respect of all Securities accepted for payment in the Asset Sale Repurchase Offer, and
(C) deliver, or cause to be delivered, to the Company may use any remaining Excess Proceeds Trustee for any purpose not otherwise prohibited by this Indenture. cancellation the Securities so accepted together with an Officer’s Certificate to the Trustee consistent with Section 4.14.
(iv) If the aggregate principal amount of Notes and such other pari passu Indebtedness Securities surrendered by the Holders thereof in respect of an Asset Sale Repurchase Offer exceeds the amount of Excess ProceedsNet Proceeds or the pro rata portion thereof available for the Asset Sale Repurchase Offer, as the case may be, the Trustee shall select the Notes and such other pari passu Indebtedness Securities to be purchased on a pro rata basis. Upon completion basis for all tendered Securities.
(c) Any Net Proceeds remaining after application as set forth in Section 4.15(a) may be used by the Company or any of an Asset Sale Offer, its Subsidiaries for general corporate purposes subject to the amount terms of Excess Proceeds this Indenture.”
(g) Section 7.01(i) of the Indenture shall be reset at zero.amended and restated in its entirety to read as follows:
Appears in 1 contract
Asset Sales. The Company shall not, and shall not permit any of its Restricted Subsidiaries to, consummate an Asset Sale unless (i) the Company Company, or such the Restricted Subsidiary, as the case may be, receives consideration at the time of such Asset Sale at least equal to the fair market value (evidenced as determined in good faith by a resolution of the Board of Directors set forth in an Officers' Certificate delivered to of the TrusteeCompany) of the assets or Equity Interests issued or sold or otherwise disposed of and (ii) at least 75% of the consideration therefor is received by the Company or such Restricted Subsidiary at or prior to consummation of the Asset Sale and is in the form of cash or Cash Equivalents; provided that the amount of (ax) any liabilities (as shown on the Company's or such Restricted Subsidiary's most recent balance sheet) ), of the Company or such any Restricted Subsidiary (other than contingent liabilities and liabilities that are by their terms subordinated to the Notes or any guarantee thereofor, in the case of liabilities of a Restricted Subsidiary, the Guarantee of such Subsidiary) that are assumed by the transferee of any such assets pursuant to a customary novation agreement that releases the Company or such Restricted Subsidiary from further liability, and (by) any securities, notes notes, promises to pay or other obligations received by the Company or any such Restricted Subsidiary from such transferee that are immediately converted by the Company or such Restricted Subsidiary into cash (to the extent of the cash received) and (c) escrowed cash that the Company reasonably believes will be released from escrow within 365 180 days from the date of consummation of such Asset Saleafter receipt, in each case shall be deemed to be cash consideration received (for purposes of this provision. Notwithstanding the immediately preceding paragraph, the Company and its Restricted Subsidiaries will be permitted to consummate an Asset Sale without complying with such paragraph if clause (i) above) and cash received at or prior to the Company or consummation of the applicable Restricted Subsidiary, as the case may be, receives consideration at the time of such Asset Sale at least equal to the fair market value (for purposes of the assets or other property sold, issued or otherwise disposed of (as evidenced by a resolution of the Company's Board of Directors set forth in an Officers' Certificate delivered to the Trustee) and clause (ii) at least 75% of the consideration for such Asset Sale constitutes a controlling interest in a Permitted Business, long-term assets used or useful in a Permitted Business and/or cash or Cash Equivalents; provided that any cash or Cash Equivalents received by the Company or any of its Restricted Subsidiaries in connection with any Asset Sale permitted to be consummated under this paragraph shall constitute Net Proceeds subject to the provisions of the next succeeding paragraphabove). Within 365 360 days of after the receipt of any Net Proceeds from an Asset Sale, the Company may apply such Net Proceeds, at its option, (ia) to repay Senior Debt under or Pari Passu Indebtedness (provided that if the Company shall so reduce in excess of $15.0 million of Pari Passu Indebtedness, it will equally and ratably make an Asset Sale Offer (in accordance with the procedures set forth below for an Asset Sale Offer) to all Holders) and/or (b) to an investment in a Credit Facility Related Business (and or enter into a definitive agreement committing to correspondingly reduce commitments with respect thereto in so invest; provided that the case of revolving borrowingstransactions contemplated by any such agreement are later consummated) or (ii) to the acquisition of a controlling interest in a Permitted Business, the making of a capital expenditure or the acquisition of other long-term tangible assets, product distribution rights or intellectual property or rights thereto, in each case, used or useful in a Permitted BusinessRelated Business (as determined in good faith by the Board of Directors of the Company). Pending the final application of any such Net Proceeds, the Company may temporarily reduce Senior Debt borrowings under the Credit Facility or otherwise invest such Net Proceeds in any manner that is not prohibited by this Indenture. Any Net Proceeds from Asset Sales that are not applied or invested as provided in the first sentence of this paragraph shall will be deemed to constitute "Excess Proceeds." When the aggregate amount of Excess Proceeds exceeds $10.0 15.0 million, the Company shall be required to (i) make an offer to all Holders of Notes and all holders (ii) prepay, purchase or redeem (or make an offer to do so) any other Pari Passu Indebtedness of other pari passu Indebtedness containing the Company in accordance with provisions similar requiring the Company to those set forth in this Indenture with respect to offers to prepay, purchase or redeem such other pari passu Indebtedness with the proceeds from any asset sales (or offer to do so), pro rata in proportion to the respective principal amounts (or accreted value, as applicable) of sales of assets the Notes and such other Indebtedness required to be prepaid, purchased or redeemed or tendered for pursuant to such offer (an "Asset Sale Offer") ), to purchase the maximum principal amount of Notes and such other pari passu Indebtedness that may be purchased out of the Excess Proceeds Proceeds, at an offer price in cash in an amount equal to 100% of the principal amount thereof, thereof plus accrued and unpaid interest and Liquidated DamagesDamages thereon, if any, thereon to the date of purchase, in accordance with the procedures set forth in this Indenture and in such other pari passu IndebtednessSection 3.09. To the extent that the aggregate principal amount of Notes and such other pari passu Indebtedness tendered pursuant to an Asset Sale Offer is less than the Excess Proceeds, the Company may use any remaining Excess Proceeds for any general corporate purpose not otherwise prohibited by in contravention of the other covenants provided for in this Indenture. If the aggregate principal amount of Notes and such other pari passu Indebtedness surrendered by Holders thereof exceeds the amount of Excess Proceeds, the Trustee shall select the Notes and such other pari passu Indebtedness to be purchased on a pro rata basis. Upon completion of an Asset Sale Offer, the amount of Excess Proceeds shall be reset at to zero. The Asset Sale Offer shall be made by the Company in compliance with all applicable laws, including, without limitation, Rule 14e-1 under the Exchange Act and the rules thereunder, to the extent applicable.
Appears in 1 contract
Sources: Indenture (Conmed Corp)
Asset Sales. The Company shall not, and shall not permit any of its Restricted Subsidiaries to, consummate an Asset Sale unless unless:
(i) the Company (or such the Restricted Subsidiary, as the case may be, ) receives consideration at the time of such Asset Sale which, taken as a whole, is at least equal to the fair market value of the assets or Equity Interests issued or sold or otherwise disposed of;
(ii) such fair market value is determined by the Company's Board of Directors and evidenced by a resolution of the Board of Directors set forth in an Officers' Certificate delivered to the Trustee) of the assets or Equity Interests issued or sold or otherwise disposed of and ; and
(iiiii) at least 75% of the consideration therefor received by the Company or such Restricted Subsidiary is in the form of cash or Cash Equivalents; provided that Equivalents or Marketable Securities. For purposes of this provision, each of the amount of following shall be deemed to be cash:
(ai) any liabilities (as shown on the Company's or such Restricted Subsidiary's most recent balance sheet) of the Company or such any Restricted Subsidiary (other than contingent liabilities and liabilities that are by their terms subordinated to the Notes or any guarantee thereof) that are assumed by the transferee of any such assets pursuant to a customary novation agreement that releases the Company or such Restricted Subsidiary from further liability, assets;
(bii) any securities, notes or other obligations received by the Company or any such Restricted Subsidiary from such transferee that are immediately converted converted, sold or exchanged by the Company or such Restricted Subsidiary into cash within 30 days of the related Asset Sale (to the extent of the cash receivedreceived in that conversion); and
(iii) and (c) escrowed cash that the Company reasonably believes will be released from escrow within 365 days from the date of consummation of such Asset Sale, in each case shall be deemed to be cash for purposes of this provision. Notwithstanding the immediately preceding paragraph, the Company and its Restricted Subsidiaries will be permitted to consummate an Asset Sale without complying with such paragraph if (i) the Company or the applicable Restricted Subsidiary, as the case may be, receives consideration at the time of such Asset Sale at least equal to the fair market value of the assets or other property sold, issued or otherwise disposed of (as evidenced by a resolution of the Company's Board of Directors set forth in an Officers' Certificate delivered to the Trustee) and (ii) at least 75% of the consideration for such Asset Sale constitutes a controlling interest in a Permitted Business, long-term assets used or useful in a Permitted Business and/or cash or Cash Equivalents; provided that any cash or Cash Equivalents Designated Noncash Consideration received by the Company or any of its Restricted Subsidiaries in connection with any such Asset Sale permitted having an aggregate fair market value, taken together with all other Designated Noncash Consideration received since the Issue Date pursuant to be consummated under this paragraph shall constitute Net Proceeds subject clause (iii) that is at that time outstanding, not to exceed 10% of Total Assets at the provisions time of the next succeeding paragraph. receipt of such Designated Noncash Consideration (with the fair market value of each item of Designated Noncash Consideration being measured at the time received and without giving effect to subsequent changes in value) Within 365 days of after the receipt of any Net Proceeds from an Asset Sale, the Company may apply such Net Proceeds, Proceeds at its option, :
(i) to repay Senior Debt under a Credit Facility (and and, if the Senior Debt repaid is revolving credit Indebtedness, to correspondingly reduce commitments with respect thereto in the case of revolving borrowings) or thereto;
(ii) to invest in or to acquire other properties or assets to replace the acquisition properties or assets that were the subject of a controlling interest the Asset Sale or that will be used in a Permitted Businessbusinesses of the Company or its Restricted Subsidiaries, as the making of case may be, existing at the time such assets are sold;
(iii) to make a capital expenditure or commit, or cause such Restricted Subsidiary to commit, to make a capital expenditure (such commitments to include amounts anticipated to be expended pursuant to the acquisition Company's capital investment plan as adopted by the Board of other long-term assets, Directors of the Company) within 24 months of such Asset Sale; or
(iv) to make a Timberlands Repurchase in each case, used or useful in a Permitted Businessaccordance with Section 3.07(ii) hereof. Pending the final application of any such Net Proceeds, the Company may temporarily reduce Senior Debt revolving credit borrowings or otherwise invest such Net Proceeds in any manner that is not prohibited by this Exchange Indenture. Any Net Proceeds from Asset Sales that are not applied or invested as provided in the first sentence of this preceding paragraph shall be deemed to constitute "Excess Proceeds." When the aggregate amount of Excess Proceeds exceeds $10.0 25.0 million, the Company shall be required to make an offer Asset Sale Offer to all Holders of Notes and all holders of other Indebtedness that is pari passu Indebtedness with the Notes containing provisions similar to those set forth in this Exchange Indenture with respect to offers to purchase or redeem such other pari passu Indebtedness with the proceeds of sales of assets (an "Asset Sale Offer") to purchase the maximum principal amount of Notes and such other pari passu Indebtedness that may be purchased out of the Excess Proceeds at an Proceeds. The offer price in cash in an amount any Asset Sale Offer shall be equal to 100% of the principal amount thereof, plus accrued and unpaid interest and Liquidated Damages, if any, thereon to the date of purchase, and shall be payable in accordance with the procedures set forth in this Indenture and in such other pari passu Indebtednesscash. To the extent that the aggregate amount If any Excess Proceeds remain after consummation of Notes and such other pari passu Indebtedness tendered pursuant to an Asset Sale Offer is less than the Excess ProceedsOffer, the Company may use any remaining such Excess Proceeds for any purpose not otherwise prohibited by this Exchange Indenture. If the aggregate principal amount of Notes and such other pari passu Indebtedness surrendered by Holders thereof tendered into such Asset Sale Offer exceeds the amount of Excess Proceeds, the Trustee shall select the Notes and such other pari passu Indebtedness to be purchased on a pro rata basisbasis based on the principal amount of Notes and such other pari passu Indebtedness tendered. Upon completion of an each Asset Sale Offer, the amount of Excess Proceeds shall be reset at zero. Notwithstanding the three preceding paragraphs, the Company shall be permitted to apply up to $100.0 million of Timberlands Net Proceeds (which amount shall be reduced on a dollar for dollar basis by the amount of Timberlands Net Proceeds used to make a Timberlands Repurchase in accordance with Section 3.07(ii) hereof) to repurchase or redeem, or pay a dividend on, or a return of capital with respect to, any Equity Interests of the Company, or repurchase or redeem Notes, if:
(i) the repurchase, redemption, dividend or return of capital is consummated within 90 days of the final sale of such Timberlands Sale;
(ii) the Company's Debt to Cash Flow Ratio at the time of such Timberlands Repurchase, after giving pro forma effect to (A) such repurchase, redemption, dividend or return of capital, (B) the Timberlands Sale and the application of the net proceeds therefrom and (C) any increase or decrease in fiber, stumpage or similar costs as a result of the Timberlands Sale as if the same had occurred at the beginning of the most recently ended four full fiscal quarter period of the Company for which internal financial statements are available, would have been no greater than 5.0 to 1; and
(iii) in the case of a repurchase or redemption of all of the then outstanding Preferred Stock or Notes, no Timberlands Net Proceeds have previously been applied to redeem Notes or repurchase or redeem, or pay a dividend on, or a return of capital with respect to, any other Equity Interests of the Company. The Company shall comply with the requirements of Rule 14e-1 under the Exchange Act and any other securities laws and regulations thereunder to the extent such laws and regulations are applicable in connection with each repurchase of Notes pursuant to an Asset Sale Offer. To the extent that the provisions of any securities laws or regulations conflict with the provisions of this Section 4.10, the Company shall comply with the applicable securities laws and regulations and shall not be deemed to have breached its obligations under the provisions of this Section 4.10 by virtue of such conflict.
Appears in 1 contract
Asset Sales. The Company shall not, and shall not permit any of its Restricted Subsidiaries to, consummate an Asset Sale unless No later than three (i3) the Company or such Restricted Subsidiary, as the case may be, receives consideration at the time of such Asset Sale at least equal to the fair market value (evidenced by a resolution of the Board of Directors set forth in an Officers' Certificate delivered to the Trustee) of the assets or Equity Interests issued or sold or otherwise disposed of and (ii) at least 75% of the consideration therefor received by the Company or such Restricted Subsidiary is in the form of cash or Cash Equivalents; provided that the amount of (a) any liabilities (as shown on the Company's or such Restricted Subsidiary's most recent balance sheet) of the Company or such Restricted Subsidiary (other than contingent liabilities and liabilities that are by their terms subordinated to the Notes or any guarantee thereof) that are assumed by the transferee of any such assets pursuant to a customary novation agreement that releases the Company or such Restricted Subsidiary from further liability, (b) any securities, notes or other obligations received by the Company or such Restricted Subsidiary from such transferee that are immediately converted by the Company or such Restricted Subsidiary into cash (to the extent of the cash received) and (c) escrowed cash that the Company reasonably believes will be released from escrow within 365 days from Business Days following the date of consummation of such Asset Sale, in each case shall be deemed to be cash for purposes of this provision. Notwithstanding the immediately preceding paragraph, the Company and its Restricted Subsidiaries will be permitted to consummate an Asset Sale without complying with such paragraph if (i) the Company or the applicable Restricted Subsidiary, as the case may be, receives consideration at the time of such Asset Sale at least equal to the fair market value of the assets or other property sold, issued or otherwise disposed of (as evidenced receipt by a resolution of the Company's Board of Directors set forth in an Officers' Certificate delivered to the Trustee) and (ii) at least 75% of the consideration for such Asset Sale constitutes a controlling interest in a Permitted Business, long-term assets used or useful in a Permitted Business and/or cash or Cash Equivalents; provided that any cash or Cash Equivalents received by the Company or any of its Restricted Subsidiaries in connection with any Asset Sale permitted to be consummated under this paragraph shall constitute Net Proceeds subject to the provisions of the next succeeding paragraph. Within 365 days of the receipt of any Net Proceeds from Asset Sales in excess of $3,000,000 in the aggregate in any Fiscal Year (other than with respect to any Net Proceeds from [***] in excess of [***]), Company shall prepay the ABL Loans and the Term Loan (subject to the applicable provisions of the Intercreditor Agreement) as set forth in Section 2.13(a) in an Asset Sale, the Company may apply aggregate amount equal to such Net Proceeds; provided, at its optionthat other than with respect to the Net Proceeds from [***] that are subject to the mandatory prepayment requirements of this Section 2.12(a) (for which no reinvestment of such Net Proceeds shall be permitted), so long as (i) no Default or Event of Default shall have occurred and be continuing, (ii) Company has delivered Administrative Agent prior written notice of Company’s intention to repay Senior Debt under apply such monies (the “Reinvestment Amounts”) to the costs of replacement of the properties or assets that are the subject of such sale or disposition, (iii) pending such reinvestment, such Net Proceeds are maintained pursuant to arrangements reasonably acceptable to the Collateral Agent, which arrangements shall in all events provide the Collateral Agent with a Credit Facility First Priority Lien on such Net Proceeds and assure that such Net Proceeds are available to be reinvested as described herein, and (iv) Company or its Subsidiaries, as applicable, complete such replacement, purchase, or construction within 180 days after the initial receipt of such monies, Company and its Subsidiaries shall have the option to apply such monies in an aggregate amount not to exceed $5,000,000 in any Fiscal Year to the costs of replacement of the assets that are the subject of such sale or disposition, unless and to correspondingly reduce commitments with respect thereto the extent that either (x) such applicable period shall have expired without such replacement, purchase or construction being made or completed, or (y) there shall occur an Event of Default that is continuing, then, in either case, any amounts held for reinvestment by the Company or its Subsidiaries shall be applied to the Term Loan and the ABL Loans as required by Section 2.13, on the last day of such specified period or immediately, in the case of revolving borrowingsan Event of Default that is continuing. Nothing contained in this Section 2.12(a) shall permit Company or (ii) any of its Subsidiaries to the acquisition of a controlling interest in a Permitted Business, the making of a capital expenditure sell or the acquisition of other long-term assets, in each case, used or useful in a Permitted Business. Pending the final application otherwise dispose of any such Net Proceeds, the Company may temporarily reduce Senior Debt or otherwise invest such Net Proceeds in any manner that is not prohibited by this Indenture. Any Net Proceeds from Asset Sales that are not applied or invested as provided in the first sentence of this paragraph shall be deemed to constitute "Excess Proceeds." When the aggregate amount of Excess Proceeds exceeds $10.0 million, the Company shall be required to make an offer to all Holders of Notes and all holders of assets other pari passu Indebtedness containing provisions similar to those set forth in this Indenture with respect to offers to purchase or redeem such other pari passu Indebtedness with the proceeds of sales of assets (an "Asset Sale Offer") to purchase the maximum principal amount of Notes and such other pari passu Indebtedness that may be purchased out of the Excess Proceeds at an offer price in cash in an amount equal to 100% of the principal amount thereof, plus accrued and unpaid interest and Liquidated Damages, if any, thereon to the date of purchase, than in accordance with the procedures set forth in this Indenture and in such other pari passu Indebtedness. To the extent that the aggregate amount of Notes and such other pari passu Indebtedness tendered pursuant to an Asset Sale Offer is less than the Excess Proceeds, the Company may use any remaining Excess Proceeds for any purpose not otherwise prohibited by this Indenture. If the aggregate principal amount of Notes and such other pari passu Indebtedness surrendered by Holders thereof exceeds the amount of Excess Proceeds, the Trustee shall select the Notes and such other pari passu Indebtedness to be purchased on a pro rata basis. Upon completion of an Asset Sale Offer, the amount of Excess Proceeds shall be reset at zeroSection 6.9.
Appears in 1 contract
Asset Sales. The Company shall not, and shall not permit any of its Restricted Subsidiaries to, consummate an any Asset Sale Sale, unless (i) the Company or such Restricted Subsidiary, as the case may be, receives consideration at the time of such Asset Sale at least equal to the fair market value (evidenced by a resolution of the Board of Directors set forth in an Officers' Certificate delivered to the Trustee) of the assets or Equity Interests issued or sold or otherwise disposed of and (ii) at least 75% of the consideration therefor received by the Company or such Restricted Subsidiary is in at least equal to the form fair market value of the assets sold or disposed of and (ii) at least 80% of the consideration received consists of cash or Temporary Cash Equivalents; Investments, provided that the amount of (a) any liabilities Senior Indebtedness or Restricted Subsidiary Indebtedness (as shown on the Company's or such Restricted Subsidiary's most recent balance sheetsheet or notes thereto) of the Company or such Restricted Subsidiary (other than contingent liabilities and liabilities that are by their terms subordinated to the Notes or any guarantee thereof) that are which is assumed by the transferee as a credit against the purchase price shall be deemed to be cash to the extent of any such assets pursuant the amount so credited. In the event and to a customary novation agreement the extent that releases the Company or such Restricted Subsidiary from further liability, (b) any securities, notes or other obligations Net Cash Proceeds received by the Company or its Restricted Subsidiaries from one or more Asset Sales occurring on or after the Closing Date in any period of 12 consecutive months exceed the greater of $1 million or 10% of Adjusted Consolidated Net Tangible Assets (determined as of the date closest to the commencement of such 12-month period for which a consolidated balance sheet of the Company and its Subsidiaries has been prepared), then the Company shall or shall cause the relevant Restricted Subsidiary from such transferee that are immediately converted by the Company or such Restricted Subsidiary into cash to (to the extent of the cash receivedi) and (c) escrowed cash that the Company reasonably believes will be released from escrow within 365 days from six months after the date Net Cash Proceeds so received exceed the greater of $1 million or 10% of Adjusted Consolidated Net Tangible Assets (A) apply, or resolve by Board of Directors resolutions to apply no later than one year after the consummation of such Asset Sale, in each case shall be deemed to be cash for purposes of this provision. Notwithstanding the immediately preceding paragraph, the Company and its Restricted Subsidiaries will be permitted to consummate an Asset Sale without complying with such paragraph if (i) the Company or the applicable Restricted Subsidiary, as the case may be, receives consideration at the time of such Asset Sale at least equal to the fair market value of the assets or other property sold, issued or otherwise disposed of (as evidenced by a resolution of the Company's Board of Directors set forth in an Officers' Certificate delivered to the Trustee) and (ii) at least 75% of the consideration for such Asset Sale constitutes a controlling interest in a Permitted Business, long-term assets used or useful in a Permitted Business and/or cash or Cash Equivalents; provided that any cash or Cash Equivalents received by the Company or any of its Restricted Subsidiaries in connection with any Asset Sale permitted to be consummated under this paragraph shall constitute Net Proceeds subject to the provisions of the next succeeding paragraph. Within 365 days of the receipt of any Net Proceeds from an Asset Sale, the Company may apply such Net Proceeds, at its option, (i) to repay Senior Debt under a Credit Facility (and to correspondingly reduce commitments with respect thereto in the case of revolving borrowings) or (ii) to the acquisition of a controlling interest in a Permitted Business, the making of a capital expenditure or the acquisition of other long-term assets, in each case, used or useful in a Permitted Business. Pending the final application of any such Net Proceeds, the Company may temporarily reduce Senior Debt or otherwise invest such Net Proceeds in any manner that is not prohibited by this Indenture. Any Net Proceeds from Asset Sales that are not applied or invested as provided in the first sentence of this paragraph shall be deemed to constitute "Excess Proceeds." When the aggregate amount of Excess Proceeds exceeds $10.0 million, the Company shall be required to make an offer to all Holders of Notes and all holders of other pari passu Indebtedness containing provisions similar to those set forth in this Indenture with respect to offers to purchase or redeem such other pari passu Indebtedness with the proceeds of sales of assets (an "Asset Sale Offer") to purchase the maximum principal amount of Notes and such other pari passu Indebtedness that may be purchased out of the Excess Proceeds at an offer price in cash in an amount equal to 100% such excess Net Cash Proceeds to permanently repay Senior Indebtedness of the principal amount thereofCompany, plus accrued and unpaid interest and Liquidated Damages, if or any indebtedness of any, thereon to the date of purchase, in accordance with the procedures set forth in this Indenture and in such other pari passu Indebtedness. To the extent that the aggregate amount of Notes and such other pari passu Indebtedness tendered pursuant to an Asset Sale Offer is less than the Excess Proceeds, the Company may use any remaining Excess Proceeds for any purpose not otherwise prohibited by this Indenture. If the aggregate principal amount of Notes and such other pari passu Indebtedness surrendered by Holders thereof exceeds the amount of Excess Proceeds, the Trustee shall select the Notes and such other pari passu Indebtedness to be purchased on a pro rata basis. Upon completion of an Asset Sale Offer, the amount of Excess Proceeds shall be reset at zero.
Appears in 1 contract
Asset Sales. The Company shall not, and shall not permit any of its Restricted Subsidiaries to, consummate an Asset Sale unless (ia) the Company or such Restricted Subsidiary, as the case may be, receives consideration at the time of such Asset Sale at least equal to the fair market value (evidenced by a resolution of the Board of Directors of the Company set forth in an Officers' Certificate officer's certificate delivered to the Trustee) of the assets or Equity Interests issued or sold or otherwise disposed of and (iib) at least 7575 % of the consideration therefor received by the Company or such Restricted Subsidiary is in the form of cash or Cash Equivalents; provided provided, however, that the amount of (ai) any liabilities (as shown on the Company's or such Restricted Subsidiary's most recent balance sheet) of the Company or such Restricted Subsidiary (other than contingent liabilities and liabilities that are by their terms subordinated to the Notes or any guarantee thereof) that are assumed by the transferee of any such assets pursuant to a customary novation agreement that releases the Company or such Restricted Subsidiary from further liability, liability and (bii) any securities, notes or other obligations received by the Company or such Restricted Subsidiary from such transferee that are immediately converted by the Company or such Restricted Subsidiary within 60 days of receipt into cash or Cash Equivalents (to the extent of the cash or Cash Equivalents received) and (c) escrowed cash that the Company reasonably believes will be released from escrow within 365 days from the date of consummation of such Asset Sale, in each case shall be deemed to be cash or Cash Equivalents for purposes of this provision. Notwithstanding the immediately preceding paragraph, the Company and its Restricted Subsidiaries will be permitted to consummate an Asset Sale without complying with such paragraph if (i) the Company or the applicable Restricted Subsidiary, as the case may be, receives consideration at the time of such Asset Sale at least equal to the fair market value of the assets or other property sold, issued or otherwise disposed of (as evidenced by a resolution of the Company's Board of Directors set forth in an Officers' Certificate delivered to the Trustee) and (ii) at least 75% of the consideration for such Asset Sale constitutes a controlling interest in a Permitted Business, long-term assets used or useful in a Permitted Business and/or cash or Cash Equivalents; provided that any cash or Cash Equivalents received by the Company or any of its Restricted Subsidiaries in connection with any Asset Sale permitted to be consummated under this paragraph shall constitute Net Proceeds subject to the provisions of the next succeeding paragraph. Within 365 90 days of after the receipt of any Net Proceeds from an Asset Sale, the Company may or any such Restricted Subsidiary shall apply such Net Proceeds, at its option, Proceeds (i) to repay Senior Debt reduce Indebtedness under Permitted Working Capital Indebtedness or any other Indebtedness of a Credit Facility Restricted Subsidiary of the Company (and and, in the case of such Indebtedness other than Indebtedness under Permitted Working Capital Indebtedness, to correspondingly reduce commitments with respect thereto in the case of revolving borrowingsthereto) (an "Indebtedness Reduction") or (ii) to purchase Notes in the acquisition open market or in negotiated transactions ("Open Market Purchases"). To the extent that 50% of a controlling interest the excess, if any, of the Net Proceeds from such Asset Sale over any Indebtedness Reduction made with such Net Proceeds are not utilized within 90 days after receipt of such Net Proceeds to purchase Notes in a Permitted BusinessOpen Market Purchases (such proceeds not so utilized being referred to herein as the "Shortfall Proceeds") then, within 30 days thereafter, the making Company shall commence a pro rata Asset Sale Offer pursuant to Section 3.09 hereof to purchase the maximum amount of Notes that can be purchased with such Shortfall Proceeds at a capital expenditure price equal to (x) 85% of the principal amount thereof plus accrued and unpaid interest, if any, thereon, if such Asset Sale occurred prior to April 1, 2001 or (y) 95% of the acquisition of other long-term assetsprincipal amount thereof plus accrued and unpaid interest, if any, thereon, if such Asset Sale occurred on or after April 1, 2001. To the extent such Net Proceeds are not utilized as contemplated in each casethe preceding sentences, used such Net Proceeds may, within 360 days after receipt thereof, be utilized to acquire Replacement Assets or useful in a Permitted Businessfor Indebtedness Reductions. Pending the final application of any such Net Proceeds, the Company or any such Restricted Subsidiary may temporarily reduce Senior Debt or otherwise invest such Net Proceeds in any manner that is not prohibited by this Indenture. Any Net Proceeds from Asset Sales that are not applied or invested as provided in the first sentence of this paragraph shall will be deemed after the expiration of the time periods set forth above to constitute "Excess Proceeds." When Within 30 days of each date on which the aggregate amount of Excess Proceeds exceeds $10.0 35.0 million, the Company shall be required to make an offer to all Holders of Notes and all holders of other pari passu Indebtedness containing provisions similar to those set forth in this Indenture with respect to offers to purchase or redeem such other pari passu Indebtedness with the proceeds of sales of assets (an "commence a pro rata Asset Sale Offer") Offer pursuant to 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 at an offer price in cash in an amount equal to 100% of the principal amount thereof, thereof plus accrued and unpaid interest and Liquidated Damages, if any, thereon to the date of purchase, purchase in accordance with the procedures set forth in this Indenture and in such other pari passu IndebtednessSection 3.09 hereof. To the extent that the aggregate amount of Notes and such other pari passu Indebtedness tendered pursuant to an Asset Sale Offer is less than the Excess Proceedsamount that the Company is required to repurchase, the Company may use any remaining Excess Proceeds for any purpose not otherwise prohibited by this Indenturegeneral corporate purposes. If the aggregate principal amount of Notes and such other pari passu Indebtedness surrendered by Holders thereof exceeds the amount of Excess Proceedsthat the Company is required to repurchase, the Trustee shall select the Notes and such other pari passu Indebtedness to be purchased on a pro rata basisbasis (with such adjustments as may be deemed appropriate by the Trustee so that only Notes in denominations of $1,000, or integral multiples thereof, shall be purchased). Upon completion of an Asset Sale Offersuch offer to purchase, the amount of Excess Proceeds shall be reset at zero.
Appears in 1 contract
Asset Sales. The Company shall not, and shall not permit any of its Restricted Subsidiaries to, consummate an Asset Sale unless (i) the Company or such Restricted Subsidiary, as the case may be, receives consideration at the time of such Asset Sale at least equal to the fair market value (evidenced by a resolution of the Board of Directors set forth in an Officers' Certificate delivered to the Trustee) of the assets or Equity Interests issued or sold or otherwise disposed of and (ii) at least 75% of the consideration therefor received by the Company or such Restricted Subsidiary is in the form of cash or Cash Equivalents; provided that the amount of (a) any liabilities (as shown on the Company's or such Restricted Subsidiary's most recent balance sheet) of the Company or such Restricted Subsidiary (other than contingent liabilities and liabilities that are by their terms subordinated to the Notes or any guarantee thereof) that are assumed by the transferee of any such assets pursuant to a customary novation agreement that releases the Company or such Restricted Subsidiary from further liability, (b) any securities, notes or other obligations received by the Company or such Restricted Subsidiary from such transferee that are immediately converted by the Company or such Restricted Subsidiary into cash (to the extent of the cash received) and (c) escrowed cash that the Company reasonably believes will be released from escrow within 365 days from the date of consummation of such Asset Sale, in each case shall be deemed to be cash for purposes of this provision. Notwithstanding the immediately preceding paragraph, the Company and its Restricted Subsidiaries will be permitted to consummate an Asset Sale without complying with such paragraph if (i) the Company or the applicable Restricted Subsidiary, as the case may be, receives consideration at the time of such Asset Sale at least equal to the fair market value of the assets or other property sold, issued sold or otherwise disposed of (as evidenced determined in good faith by a resolution of the Company's Board of Directors), (ii) at least 75% of the consideration received by the Company or the Restricted Subsidiary, as the case may be, from such Asset Sale shall be cash or Cash Equivalents; provided that the amount of (a) any liabilities (as shown on the Company's or such Restricted Subsidiary's most recent balance sheet) of the Company or any such Restricted Subsidiary (other than liabilities that are by their terms subordinated to the Notes) that are assumed by the transferee of any such assets, (b) any notes or other obligations received by the Company or any such Restricted Subsidiary from such transferee that are immediately converted by the Company or such Restricted Subsidiary into cash (to the extent of the cash received) and (c) any Designated Noncash Consideration received by the Company or any of its Restricted Subsidiaries in such Asset Sale having an aggregate fair market value, taken together with all other Designated Noncash Consideration received pursuant to this clause (c) that is at that time outstanding, not to exceed 10% of Total Assets at the time of the receipt of such Designated Noncash Consideration (with the fair market value of each item of Designated Noncash Consideration being measured at the time received and without giving effect to subsequent changes in value), shall be deemed to be cash for the purposes of this provision, and (iii) upon the consummation of an Asset Sale, the Company shall apply, or cause such Restricted Subsidiary to apply, the Net Cash Proceeds relating to such Asset Sale within 365 days of receipt thereof either (A) to repay any Senior Debt and, in the case of any Senior Debt under any revolving credit facility, effect a commitment reduction under such revolving credit facility, (B) to reinvest in Productive Assets, or (C) a combination of prepayment, repurchase and investment permitted by the foregoing clauses (iii)(A) and (iii)(B). Pending the final application of any such Net Cash Proceeds, the Company or such Restricted Subsidiary may temporarily reduce Indebtedness under a revolving credit facility, if any, or otherwise invest such Net Cash Proceeds in Cash Equivalents. On the 366th day after an Asset Sale or such earlier date, if any, as the Board of Directors of the Company or of such Restricted Subsidiary determines not to apply the Net Cash Proceeds relating to such Asset Sale as set forth in an Officers' Certificate delivered to clauses (iii)(A), (iii)(B) or (iii)(C) of the Trusteenext preceding sentence (each, a "Net Proceeds Offer Trigger Date"), the aggregate amount of Net Cash Proceeds that have not been applied on or before such Net Proceeds Offer Trigger Date as permitted in clauses (iii)(A), (iii)(B) and (iiiii)(C) of the next preceding sentence (each a "Net Proceeds Offer Amount") shall be applied by the Company or such Restricted Subsidiary to make an offer to purchase (the "Net Proceeds Offer") on a date (the "Net Proceeds Offer Payment Date") not less than 30 nor more than 45 days following the applicable Net Proceeds Offer Trigger Date, from all Holders on a pro rata basis that amount of Notes equal to the Net Proceeds Offer Amount at a price equal to 100% of the principal amount of the Notes to be purchased, plus accrued and unpaid interest and Liquidated Damages thereon, if any, to the date of purchase; provided, however, that if at any time any non-cash consideration (including any Designated Noncash Consideration) received by the Company or any Restricted Subsidiary of the Company, as the case may be, in connection with any Asset Sale is converted into or sold or otherwise disposed of for cash (other than interest received with respect to any such non-cash consideration), then such conversion or disposition shall be deemed to constitute an Asset Sale hereunder and the Net Cash Proceeds thereof shall be applied in accordance with this covenant. Notwithstanding the foregoing, if a Net Proceeds Offer Amount is less than $10.0 million, the application of the Net Cash Proceeds constituting such Net Proceeds Offer Amount to a Net Proceeds Offer may be deferred until such time as such Net Proceeds Offer Amount plus the aggregate amount of all Net Proceeds Offer Amounts arising subsequent to the Net Proceeds Offer Trigger Date relating to such initial Net Proceeds Offer Amount from all Asset Sales by the Company and its Restricted Subsidiaries aggregates at least $10.0 million, at which time the Company or such Restricted Subsidiary shall apply all Net Cash Proceeds constituting all Net Proceeds Offer Amounts that have been so deferred to make a Net Proceeds Offer (the first date the aggregate of all such deferred Net Proceeds Offer Amounts is equal to $10.0 million or more shall be deemed to be a "Net Proceeds Offer Trigger Date"). Notwithstanding the two immediately preceding paragraphs, the Company and its Restricted Subsidiaries will be permitted to consummate an Asset Sale without complying with such paragraphs to the extent (i) at least 75% of the consideration for such Asset Sale constitutes a controlling interest Productive Assets, cash, Cash Equivalents and/or Marketable Securities and (ii) such Asset Sale is for fair market value (as determined in a Permitted Business, long-term assets used or useful in a Permitted Business and/or cash or Cash Equivalentsgood faith by the Company's Board of Directors); provided that any cash or Cash Equivalents consideration not constituting Productive Assets received by the Company or any of its Restricted Subsidiaries in connection with any Asset Sale permitted to be consummated under this paragraph shall constitute Net Proceeds be subject to the provisions of the next succeeding paragraph. Within 365 days of the receipt of any Net Proceeds from an Asset Sale, the Company may apply such Net Proceeds, at its option, (i) to repay Senior Debt under a Credit Facility (and to correspondingly reduce commitments with respect thereto in the case of revolving borrowings) or (ii) to the acquisition of a controlling interest in a Permitted Business, the making of a capital expenditure or the acquisition of other long-term assets, in each case, used or useful in a Permitted Business. Pending the final application of any such Net Proceeds, the Company may temporarily reduce Senior Debt or otherwise invest such Net Proceeds in any manner that is not prohibited by this Indenture. Any Net Proceeds from Asset Sales that are not applied or invested as provided in the first sentence of this paragraph shall be deemed to constitute "Excess Proceeds." When the aggregate amount of Excess Proceeds exceeds $10.0 million, the Company shall be required to make an offer to all Holders of Notes and all holders of other pari passu Indebtedness containing provisions similar to those set forth in this Indenture with respect to offers to purchase or redeem such other pari passu Indebtedness with the proceeds of sales of assets (an "Asset Sale Offer") to purchase the maximum principal amount of Notes and such other pari passu Indebtedness that may be purchased out of the Excess Proceeds at an offer price in cash in an amount equal to 100% of the principal amount thereof, plus accrued and unpaid interest and Liquidated Damages, if any, thereon to the date of purchase, in accordance with the procedures set forth in this Indenture and in such other pari passu Indebtednesstwo preceding paragraphs. To the extent that the aggregate amount provisions of Notes and such other pari passu Indebtedness tendered pursuant to an any securities laws or regulations conflict with the Asset Sale Offer is less than the Excess Proceedsprovisions of this Indenture, the Company may use any remaining Excess Proceeds for any purpose shall comply with the applicable securities laws and regulations and shall not otherwise prohibited by this Indenture. If be deemed to have breached its obligations under the aggregate principal amount of Notes and such other pari passu Indebtedness surrendered by Holders thereof exceeds the amount of Excess Proceeds, the Trustee shall select the Notes and such other pari passu Indebtedness to be purchased on a pro rata basis. Upon completion of an Asset Sale Offer, the amount provisions of Excess Proceeds shall be reset at zerothis Indenture by virtue thereof.
Appears in 1 contract
Sources: Indenture (Sealy Corp)
Asset Sales. The Company shall not, and shall not permit any of its Restricted Subsidiaries to, consummate an Asset Sale in excess of $1,000,000 unless (i) the Company or such Restricted Subsidiary, as the case may be, receives consideration at the time of such Asset Sale at least equal to the fair market value (evidenced by a resolution of the Board of Directors set forth in an Officers' Certificate delivered to the Trustee) of the assets or Equity Interests issued or sold or otherwise disposed of and (ii) at least 75% of the consideration therefor received by the Company or such Restricted Subsidiary is in the form of cash or Cash Equivalents; provided that the amount of (aA) any liabilities (as shown on the Company's or such Restricted Subsidiary's most recent balance sheetsheet excluding contingent liabilities and trade payables) of the Company or such Restricted Subsidiary (other than contingent liabilities and liabilities that are by their terms subordinated to the Notes or any guarantee thereof) that are assumed by the transferee of any such assets pursuant to a customary novation agreement that releases the Company or such Restricted Subsidiary from further liability, liability and (bB) any securities, notes or other obligations received by the Company or such Restricted Subsidiary from such transferee that are immediately promptly, but in no event more than 30 days after receipt, converted by the Company or such Restricted Subsidiary into cash (to the extent of the cash received) and (c) escrowed cash that the Company reasonably believes will be released from escrow within 365 days from the date of consummation of such Asset Sale), in each case shall be deemed to be cash for purposes of this provision. Notwithstanding the immediately preceding paragraph, the Company and its Restricted Subsidiaries will be permitted to consummate an Asset Sale without complying with such paragraph if (i) the Company or the applicable Restricted Subsidiary, as the case may be, receives consideration at the time of such Asset Sale at least equal to the fair market value of the assets or other property sold, issued or otherwise disposed of (as evidenced by a resolution of the Company's Board of Directors set forth in an Officers' Certificate delivered to the Trustee) and (ii) at least 75% of the consideration for such Asset Sale constitutes a controlling interest in a Permitted Business, long-term assets used or useful in a Permitted Business and/or cash or Cash Equivalents; provided that any cash or Cash Equivalents received by the Company or any of its Restricted Subsidiaries in connection with any Asset Sale permitted to be consummated under this paragraph shall constitute Net Proceeds subject to the provisions of the next succeeding paragraph. Within 365 360 days of after the receipt of any Net Proceeds from an Asset SaleSale in an amount less than $5,000,000, the Company may apply such Net Proceeds, at its option, (ia) to repay permanently reduce Senior Debt under a Credit Facility Indebtedness (and to correspondingly reduce commitments with respect thereto in other than the case Notes) of revolving borrowings) the Company, or (iib) to the acquisition an Investment (excluding Guarantees of a controlling interest in a Permitted BusinessIndebtedness or other obligations), the making of a capital expenditure or the acquisition of other long-term tangible assets, in each case, used case in or useful in with respect to a Permitted Related Business. Pending the final application of any such Net Proceeds, the Company may temporarily reduce Senior Debt or otherwise invest such Net Proceeds in any manner that is not prohibited by this Indenture. Any Net Proceeds from Asset Sales that are not applied or invested as provided in the first sentence of this paragraph shall be deemed to constitute "Excess Proceeds." When the aggregate amount of Excess Proceeds exceeds $10.0 million5,000,000, unless the Company uses such Excess Proceeds within 90 days to increase the Bank's capital, the Company shall be required to make an offer to all Holders of Notes and all holders of other pari passu Indebtedness containing provisions similar to those set forth in this Indenture with respect to offers to purchase or redeem such other pari passu Indebtedness with the proceeds of sales of assets (an "Asset Sale Offer") to purchase the maximum principal amount of Notes and such other pari passu Indebtedness that may be purchased out of one-half of the Excess Proceeds Proceeds, at an offer price in cash in an amount equal to 100% of the principal amount thereof, thereof plus accrued and unpaid interest and Liquidated Damages, if any, thereon to the date of purchase, in accordance with the procedures set forth in this Indenture and in such other pari passu IndebtednessIndenture. To the extent that the aggregate amount of Notes and such other pari passu Indebtedness tendered pursuant to an Asset Sale Offer is less than one-half of the Excess Proceeds, the Company may use any remaining Excess Proceeds for any purpose not otherwise prohibited by this Indenture. If (together with one-half of the aggregate principal amount of Notes and such other pari passu Indebtedness surrendered by Holders thereof exceeds the amount of Excess Proceeds, the Trustee shall select the Notes and such other pari passu Indebtedness to be purchased on a pro rata basis) for general corporate purposes. Upon completion of an Asset Sale Offersuch offer to purchase, the amount of Excess Proceeds shall be reset at zero. An Asset Sale Offer shall remain open for a period of 20 Business Days following its commencement and no longer, except to the extent that a longer period is required by applicable law (the "Asset Sale Offer Period"). No later than five Business Days after the termination of the Asset Sale Offer Period (the "Asset Sale Purchase Date"), the Company shall purchase the principal amount of Notes required to be purchased pursuant to this covenant (the "Asset Sale Offer Amount") or, if less than the Asset Sale Offer Amount has been tendered, all Notes tendered in response to the Asset Sale Offer. Payment for any Notes so purchased shall be made in the same manner as interest payments are made. If the Asset Sale Purchase Date is on or after an interest record date and on or before the related interest payment date, any accrued and unpaid interest shall be paid to the Person in whose name a Note is registered at the close of business on such record date, and no additional interest shall be payable to Holders who tender Notes pursuant to the Asset Sale Offer. On or before the Asset Sale Purchase Date, the Company shall, to the extent lawful, accept for payment, on a pro rata basis to the extent necessary, the Asset Sale Offer Amount of Notes or portions thereof tendered pursuant to the Asset Sale Offer, or if less than the Asset Sale Offer Amount has been tendered, all Notes tendered, and shall deliver to the Trustee an Officers' Certificate stating that such Notes or portions thereof were accepted for payment by the Company in accordance with the terms of this covenant. The Company, the Depository 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 Notes tendered by such Holder and accepted by the Company for purchase, and the Company shall promptly issue a new Note, and the Trustee, upon written request from the Company signed by two Officers shall 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 Company to the Holder thereof. The Company shall publicly announce the results of the Asset Sale Offer on the Asset Sale Purchase Date.
Appears in 1 contract
Asset Sales. The Company shall not, and shall not permit any of its Restricted Subsidiaries to, consummate an Asset Sale unless (i) the Company or such Restricted Subsidiary, as the case may be, receives consideration at the time of such Asset Sale at least equal to the fair market value (evidenced by a resolution of the Board of Directors set forth in an Officers' Certificate delivered to the Trustee) of the assets or Equity Interests issued or sold or otherwise disposed of and (ii) at least 75% of the consideration therefor received by the Company or such Restricted Subsidiary is in the form of cash or Cash Equivalents; provided that the amount of (a) any liabilities (as shown on the Company's or such Restricted Subsidiary's most recent balance sheet) of the Company or such Restricted Subsidiary (other than contingent liabilities and liabilities that are by their terms subordinated to the Notes or any guarantee thereof) that are assumed by the transferee of any such assets pursuant to a customary novation agreement that releases the Company or such Restricted Subsidiary from further liability, (b) any securities, notes or other obligations received by the Company or such Restricted Subsidiary from such transferee that are immediately converted by the Company or such Restricted Subsidiary into cash (to the extent of the cash received) and (c) escrowed cash that the Company reasonably believes will be released from escrow within 365 days from the date of consummation of such Asset Sale, in each case shall be deemed to be cash for purposes of this provision. Notwithstanding the immediately preceding paragraph, the Company and its Restricted Subsidiaries will be permitted to consummate an Asset Sale without complying with such paragraph if (i) the Company or the applicable Restricted Subsidiary, as the case may be, receives consideration at the time of such Asset Sale at least equal to the fair market value of the assets or other property sold, issued or otherwise disposed of (as evidenced by a resolution of the Company's Board of Directors set forth in an Officers' Certificate delivered to the Trustee) and (ii) at least 75% of the consideration for such Asset Sale constitutes a controlling interest in a Permitted Business, long-term assets used or useful in a Permitted Business and/or cash or Cash Equivalents; provided that any cash or Cash Equivalents received by the Company or any of its Restricted Subsidiaries in connection with any Asset Sale permitted to be consummated under this paragraph shall constitute Net Proceeds subject Subject to the provisions of the next succeeding paragraph. Within 365 days Intercreditor Agreement (if it is in full force and effect), within one (1) Business Day of the date of receipt by any Credit Party or any of any its Subsidiaries of the Net Proceeds in excess of $1,000,000 from an Asset Saleany voluntary or involuntary Disposition by any Credit Party or any of its Subsidiaries of assets (excluding Dispositions which qualify as Permitted Dispositions under clauses (a), the Company may apply such Net Proceeds(b), at its option(c), (d), (e), (f), (i), (j) to repay Senior Debt under a Credit Facility and (and to correspondingly reduce commitments with l) of the definition of “Permitted Dispositions”, but including casualty losses or condemnations in respect thereto in the case of revolving borrowings) or (ii) to the acquisition of a controlling interest in a Permitted Businessthereof), the making of a capital expenditure or Borrower shall prepay the acquisition of other long-term assets, in each case, used or useful in a Permitted Business. Pending the final application of any such Net Proceeds, the Company may temporarily reduce Senior Debt or otherwise invest such Net Proceeds in any manner that is not prohibited by this Indenture. Any Net Proceeds from Asset Sales that are not applied or invested as provided in the first sentence of this paragraph shall be deemed to constitute "Excess Proceeds." When the aggregate amount of Excess Proceeds exceeds $10.0 million, the Company shall be required to make an offer to all Holders of Notes and all holders of other pari passu Indebtedness containing provisions similar to those set forth in this Indenture with respect to offers to purchase or redeem such other pari passu Indebtedness with the proceeds of sales of assets (an "Asset Sale Offer") to purchase the maximum outstanding principal amount of Notes and such other pari passu Indebtedness that may be purchased out of the Excess Proceeds at an offer price in cash Loans in an amount equal to 100% of such Net Proceeds (including condemnation awards and payments in lieu thereof) received by such Person in connection with such Dispositions; provided that, so long as (A) no Default or Event of Default shall have occurred and is continuing or would result therefrom, (B) the Borrower shall have given the Administrative Agent prior written notice of the Borrower’s intention to apply such monies to the costs of replacement of the properties or assets that are the subject of such Disposition or the cost of purchase or construction of other assets useful in the business of Borrower or its Subsidiaries, (C) pending application thereof, in the case of Net Proceeds resulting from the Disposition of Term Priority Collateral, the monies are held in a Term Priority Collateral Account in which the Administrative Agent has a perfected first-priority security interest, and (D) the Borrower or its Subsidiaries, as applicable, complete such replacement, purchase, or construction, or enter into a binding commitment with respect to such replacement, purchase or construction, in each case within 365 days after the initial receipt of such monies, then the Borrower shall have the option to apply such monies to the costs of replacement of the assets that are the subject of such sale or disposition, unless and to the extent that such 365-day period shall have expired without such replacement, purchase, or construction being made or completed (or, in the case of replacements, purchases or construction to which the Borrower and Subsidiaries have committed within such 365-day period, to the extent that such replacement, purchase or constriction shall not have been made or completed within 180 days from the end of such 365-day period), in which case, any Net Proceeds not so applied shall be paid to the Administrative Agent and applied to the prepayment of the Loans; provided, however, that (i) Borrower and its Subsidiaries shall not have the right to use such Net Proceeds to make such replacements, purchases, or construction in excess of $10,000,000 in any given fiscal year and (ii) to the extent the Disposition giving rise to such Net Proceeds was Collateral, such reinvestment is concurrently added to the Collateral; provided, further, that, if at the time that any such prepayment would be required, any Credit Party is required to offer to repurchase or to prepay any Other Pari Passu Lien Obligations (or any Permitted Refinancing Indebtedness in respect thereof that is secured by the Collateral on a pari passu basis with the Obligations) pursuant to the terms of the documentation governing such Indebtedness with such Net Proceeds (such Other Pari Passu Lien Obligations (or any Permitted Refinancing Indebtedness in respect thereof) required to be offered to be so repurchased or prepaid, “Other Applicable Indebtedness”), then the Borrower may apply such Net Proceeds on a pro rata basis (determined on the basis of the aggregate outstanding principal amount of the Loans and Other Applicable Indebtedness outstanding at such time (and in the case of such Other Applicable Indebtedness, at a prepayment price of no more than 100% of principal amount); provided that the portion of such Net Proceeds allocated to the Other Applicable Indebtedness shall not exceed the amount of such Net Proceeds required to be allocated to the Other Applicable Indebtedness pursuant to the terms thereof, plus accrued and unpaid interest and Liquidated Damagesthe remaining amount, if any, thereon of such Net Proceeds shall be allocated to the date of purchase, Loans in accordance with the procedures set forth in this Indenture terms hereof) to the prepayment of the Loans and in such other pari passu to the repurchase or prepayment of Other Applicable Indebtedness. To the extent that the aggregate amount of Notes , and such other pari passu Indebtedness tendered pursuant to an Asset Sale Offer is less than the Excess Proceeds, the Company may use any remaining Excess Proceeds for any purpose not otherwise prohibited by this Indenture. If the aggregate principal amount of Notes and such other pari passu Indebtedness surrendered by Holders thereof exceeds the amount of Excess Proceeds, prepayment of the Trustee Loans that would have otherwise been required pursuant to this Section 5.2(a) shall select the Notes and such other pari passu Indebtedness to be purchased on a pro rata basis. Upon completion of an Asset Sale Offer, reduced by the amount of Excess such Other Applicable Indebtedness so repaid with such Net Proceeds and to the extent the holders of Other Applicable Indebtedness decline to have such Other Applicable Indebtedness repurchased or prepaid, the declined amount shall promptly (and in any event within ten (10) Business Days after the date of such rejection) be reset at zeroapplied to prepay the Loans in accordance with the terms hereof. Nothing contained in this Section 5.2(a) shall permit any Credit Party or any of its Subsidiaries to sell or otherwise dispose of any assets other than in accordance with Section 10.4.
Appears in 1 contract
Asset Sales. (a) The Company shall not, and shall not permit any of its Restricted Subsidiaries Subsidiary to, consummate an Asset Sale unless unless:
(i1) the Company Company, or such the Restricted Subsidiary, as the case may be, receives consideration at the time of such the Asset Sale at least equal to the fair market value (evidenced by a resolution of the Board of Directors set forth in an Officers' Certificate delivered to the Trustee) Fair Market Value of the assets or Equity Interests issued or sold or otherwise disposed of and of; and
(ii2) at least 75% of the consideration therefor received in such Asset Sale by the Company or such Restricted Subsidiary is in the form of cash or cash, Cash Equivalents; provided that , Replacement Assets or a combination thereof. For purposes of this clause (3), each of the amount of following shall be deemed to be cash:
(a) any liabilities (Indebtedness or other liabilities, as shown on the Company's ’s or such Restricted Subsidiary's ’s most recent balance sheet) , of the Company or such any Restricted Subsidiary (other than contingent liabilities and liabilities Indebtedness that are by their terms subordinated to the Notes or any guarantee thereof) Notes), that are assumed by the transferee of any such assets pursuant to a customary novation written agreement that releases the Company or such Restricted Subsidiary from further liability, liability with respect to such Indebtedness or liabilities; and
(b) any securities, notes or other obligations received by the Company or any such Restricted Subsidiary from such transferee that are immediately converted within 90 days of the applicable Asset Sale by the Company or such Restricted Subsidiary into cash (cash, to the extent of the cash receivedreceived in such conversion.
(b) and [Reserved].
(c) escrowed cash that the Company reasonably believes will be released from escrow within 365 days from the date of consummation of such Asset Sale, in each case shall be deemed to be cash for purposes of this provision. Notwithstanding the immediately preceding paragraph, the Company and its Restricted Subsidiaries will be permitted to consummate an Asset Sale without complying with such paragraph if (i) the Company or the applicable Restricted Subsidiary, as the case may be, receives consideration at the time of such Asset Sale at least equal to the fair market value of the assets or other property sold, issued or otherwise disposed of (as evidenced by a resolution of the Company's Board of Directors set forth in an Officers' Certificate delivered to the Trustee) and (ii) at least 75% of the consideration for such Asset Sale constitutes a controlling interest in a Permitted Business, long-term assets used or useful in a Permitted Business and/or cash or Cash Equivalents; provided that any cash or Cash Equivalents received by the Company or any of its Restricted Subsidiaries in connection with any Asset Sale permitted to be consummated under this paragraph shall constitute Net Proceeds subject to the provisions of the next succeeding paragraph. Within 365 days of after the receipt of any Net Proceeds from an Asset Sale, the Company or any of its Restricted Subsidiaries may apply such those Net Proceeds, Proceeds at its option, :
(i1) (a) to permanently repay Senior Debt under a Credit Facility (and or reduce Indebtedness, other than Subordinated Indebtedness, of the Company and, if the Indebtedness repaid is revolving credit Indebtedness, to correspondingly reduce commitments with respect thereto in the case of revolving borrowings) thereto; or (iib) to permanently repay or reduce Indebtedness of any of the acquisition Company’s Restricted Subsidiaries;
(2) to acquire, or enter into a binding agreement to acquire, all or substantially all of a controlling interest the assets (other than cash, Cash Equivalents and securities) of any Person engaged in a Permitted Business; provided, however, that any such commitment shall be subject only to customary conditions (other than financing), and such acquisition shall be consummated no later than 180 days after the end of such 365-day period;
(3) to acquire, or enter into a binding agreement to acquire, Voting Stock of a Person engaged in a Permitted Business from a Person that is not a Subsidiary of the Company; provided, however, that such commitment shall be subject only to customary conditions (other than financing) and such acquisition shall be consummated no later than 180 days after the end of such 365-day period; and provided, further, however, that (a) if the Net Proceeds are from the sale of assets of the Company or any of its Restricted Subsidiaries or the Equity Interests of any of its Restricted Subsidiaries, after giving effect thereto, the making Person so acquired becomes a Restricted Subsidiary and (b) such acquisition is otherwise made in accordance with this Indenture, including, without limitation, Section 4.10 hereof;
(4) to acquire, or enter into a binding agreement to acquire, previously issued and outstanding Voting Stock of a non-Wholly Owned Restricted Subsidiary of the Company (a) from a Person that is not an Affiliate of the Company or (b) in a brokered transaction through the facilities of a stock exchange; provided, however, that such commitment shall be subject only to customary conditions (other than financing) and such acquisition shall be consummated no later than 180 days after the end of such 365-day period;
(5) to make capital expenditure expenditures; or
(6) to acquire, or the acquisition of enter into a binding agreement to acquire, other long-term assets, in each case, assets (other than securities) that are used or useful in a Permitted Business; provided, however, that such commitment shall be subject only to customary conditions (other than financing) and such acquisition shall be consummated no later than 180 days after the end of such 365-day period. Pending the final application of any such Net Proceeds, the Company may temporarily reduce Senior Debt revolving credit borrowings or otherwise invest such the Net Proceeds in any manner that is not prohibited by this Indenture. .
(d) Any Net Proceeds from Asset Sales that are not applied or invested as provided in the first sentence of this paragraph (c) above shall be deemed to constitute "“Excess Proceeds." ”
(e) When the aggregate amount of Excess Proceeds exceeds $10.0 100.0 million, the Company shall be required to make an offer (an “Asset Sale Offer”) to all Holders of Notes and all holders of other Indebtedness that is pari passu Indebtedness in right of payment with the Notes containing provisions similar to those set forth in this Indenture with respect to offers to purchase or redeem such other pari passu Indebtedness with the proceeds of sales of assets (an "Asset Sale Offer") assets, to purchase the maximum principal amount of Notes and such other pari passu Indebtedness that may be purchased out of the Excess Proceeds at an offer price in cash in an amount equal to 100% of the principal amount thereof, plus accrued and unpaid interest and Liquidated Damages, if any, thereon to the date of purchase, in accordance with the procedures set forth in this Indenture and Section 3.09 hereof. The offer price in such other pari passu Indebtedness. To the extent that the aggregate any Asset Sale Offer shall be equal to 100% of principal amount of the Notes and such other pari passu Indebtedness tendered pursuant Indebtedness, plus accrued and unpaid interest to the date of purchase, and shall be payable in cash. If any Excess Proceeds remain after consummation of an Asset Sale Offer is less than and all Holders of Notes have been given the Excess Proceedsopportunity to tender their Notes for purchase in accordance with such Asset Sale Offer and this Indenture, the Company may use any remaining such Excess Proceeds for any purpose not otherwise prohibited by this Indenture. If the aggregate principal amount of Notes and such other pari passu Indebtedness surrendered by Holders thereof tendered into such Asset Sale Offer exceeds the amount of Excess Proceeds, the Trustee shall select the Notes and such other pari passu Indebtedness to shall be purchased on a pro rata basisbasis based on the principal amount of Notes and such other pari passu Indebtedness tendered. Upon completion of an each Asset Sale Offer, the amount of Excess Proceeds shall be reset at zero. The Company shall comply with the requirements of securities laws and regulations to the extent such laws and regulations are applicable in connection with each repurchase of Notes pursuant to an Asset Sale Offer. To the extent that the provisions of any securities laws or regulations conflict with the Asset Sales provisions of this Indenture, the Company shall comply with the applicable securities laws and regulations and shall be deemed not to have breached its obligations under the Asset Sale provisions of this Indenture by virtue of such conflict.
Appears in 1 contract
Sources: Indenture (Quebecor Media Inc)
Asset Sales. The Company shall not, and shall not permit any of its Restricted Subsidiaries to, consummate an Asset Sale Sale, unless (i) the Company (or such Restricted the Subsidiary, as the case may be, ) receives consideration at the time of such Asset Sale at least equal to the fair market value (evidenced as conclusively determined by a resolution of the Board of Directors set forth in an Officers' Certificate delivered to the Trustee) of the assets or Equity Interests issued or sold or otherwise disposed of and (ii) at least 75% of the consideration therefor received by the Company or such Restricted Subsidiary is in the form of cash or Cash Equivalents; provided that for purposes of this provision, (x) the amount of (aA) any liabilities (as shown on the Company's or such Restricted Subsidiary's most recent balance sheetsheet of the Company or such Subsidiary or in the notes thereto) of the Company or such Restricted Subsidiary (other than contingent liabilities and liabilities that are by their terms subordinated to the Notes Securities or any guarantee thereofthe Guarantees) that are assumed by the transferee of any such assets pursuant to a customary novation agreement that releases the Company or such Restricted Subsidiary from further liability, and (bB) any securities, notes securities or other obligations received by the Company or any such Restricted Subsidiary from such transferee that are immediately converted by the Company or such Restricted Subsidiary into cash or Cash Equivalents (or as to which the Company or such Subsidiary has received at or prior to the extent consummation of the Asset Sale a commitment (which may be subject to customary conditions) from a nationally recognized investment, merchant or commercial bank to convert into cash received) and (c) escrowed cash that or Cash Equivalents within 90 days of the Company reasonably believes will be released from escrow within 365 days from the date of consummation of such Asset Sale, in each case Sale and which are thereafter actually converted into cash or Cash Equivalents within such 90-day period) shall be deemed to be cash or Cash Equivalents (but shall not be deemed to be Net Proceeds for purposes of this provision. Notwithstanding the immediately preceding paragraph, the Company and its Restricted Subsidiaries will be permitted to consummate an Asset Sale without complying with such paragraph if (i) the Company or the applicable Restricted Subsidiary, as the case may be, receives consideration at the time of such Asset Sale at least equal to the fair market value of the assets or other property sold, issued or otherwise disposed of (as evidenced by a resolution of the Company's Board of Directors set forth in an Officers' Certificate delivered to the Trustee) and (ii) at least 75% of the consideration for such Asset Sale constitutes a controlling interest in a Permitted Business, long-term assets used or useful in a Permitted Business and/or cash or Cash Equivalents; provided that any cash or Cash Equivalents received by the Company or any of its Restricted Subsidiaries in connection with any Asset Sale permitted to be consummated under this paragraph shall constitute Net Proceeds subject to the following provisions of the next succeeding paragraph. Within 365 days of the receipt of any Net Proceeds from an Asset Sale, the Company may apply such Net Proceeds, at its option, (i) to repay Senior Debt under a Credit Facility (and to correspondingly reduce commitments with respect thereto in the case of revolving borrowings) or (ii) to the acquisition of a controlling interest in a Permitted Business, the making of a capital expenditure or the acquisition of other long-term assets, in each case, used or useful in a Permitted Business. Pending the final application of any such Net Proceeds, the Company may temporarily reduce Senior Debt or otherwise invest such Net Proceeds in any manner that is not prohibited by this Indenture. Any Net Proceeds from Asset Sales that are not applied or invested as provided in the first sentence of this paragraph shall be deemed to constitute "Excess Proceeds." When the aggregate amount of Excess Proceeds exceeds $10.0 million, the Company shall be required to make an offer to all Holders of Notes and all holders of other pari passu Indebtedness containing provisions similar to those set forth in this Indenture with respect to offers to purchase or redeem such other pari passu Indebtedness with the proceeds of sales of assets (an "Asset Sale Offer") to purchase the maximum principal amount of Notes and such other pari passu Indebtedness that may be purchased out of the Excess Proceeds at an offer price in cash in an amount equal to 100% of the principal amount thereof, plus accrued and unpaid interest and Liquidated Damages, if any, thereon to the date of purchase, in accordance with the procedures set forth in this Indenture and in such other pari passu Indebtedness. To the extent that the aggregate amount of Notes and such other pari passu Indebtedness tendered pursuant to an Asset Sale Offer is less than the Excess Proceeds, the Company may use any remaining Excess Proceeds for any purpose not otherwise prohibited by this Indenture. If the aggregate principal amount of Notes and such other pari passu Indebtedness surrendered by Holders thereof exceeds the amount of Excess Proceeds, the Trustee shall select the Notes and such other pari passu Indebtedness to be purchased on a pro rata basis. Upon completion of an Asset Sale Offer, the amount of Excess Proceeds shall be reset at zero.until reduced to
Appears in 1 contract
Sources: Indenture (Beverly Enterprises Distribution Services Inc)
Asset Sales. (a) The Company and Bastet/Mission shall not, and shall not permit any of its the Restricted Subsidiaries to, consummate an Asset Sale unless unless:
(i) The Company (or the Company or such Restricted Subsidiary, as the case may be, ) receives consideration at the time of such the Asset Sale at least equal to the fair market value of the assets or Equity Interests issued or sold or otherwise disposed of;
(ii) the fair market value is determined by the Company's Board of Directors and evidenced by a resolution of the Board of Directors set forth in an Officers' Certificate delivered to the Trustee) of the assets or Equity Interests issued or sold or otherwise disposed of and ; and
(iiiii) at least 75% of the consideration therefor received in the Asset Sale by the Company or such Restricted Subsidiary is in the form of cash or Cash Equivalents; provided that , except to the amount extent the Company is undertaking a Permitted Asset Swap. For purposes of this provision and the next paragraph, each of the following shall be deemed to be cash:
(aA) any liabilities (liabilities, as shown on the Company's or such any of the Restricted Subsidiary's Subsidiaries' most recent balance sheet) , of the Company or such any of the Restricted Subsidiary Subsidiaries (other than contingent liabilities and liabilities that are by their terms subordinated to the Notes or any guarantee thereofNotes) that are assumed by the transferee of any such assets pursuant to a customary novation agreement that releases the Company or such Restricted Subsidiary from further liability, ; and
(bB) any securities, notes or other obligations received by the Company or such any of the Restricted Subsidiary Subsidiaries from such transferee that are immediately converted by the Company or such Restricted Subsidiary within 90 days into cash (or Cash Equivalents, to the extent of the cash receivedreceived in that conversion. The 75% limitation referred to in clause (iii) and (c) escrowed above shall not apply to any Asset Sale in which the cash that or Cash Equivalents portion of the Company reasonably believes will be released from escrow within 365 days from consideration received therefrom, determined in accordance with the date of consummation of preceding provision, is equal to or greater than what the after-tax proceeds would have been had such Asset Sale, in each case shall be deemed to be cash for purposes of this provisionSale complied with the aforementioned 75% limitation. Notwithstanding the immediately preceding paragraphforegoing, the Company and its or any Restricted Subsidiaries will Subsidiary shall be permitted to consummate an Asset Sale without complying with such paragraph if (i) the Company or the applicable Restricted Subsidiary, as the case may be, receives consideration at the time of such Asset Sale at least equal to the fair market value of the assets or other property sold, issued or otherwise disposed of (as evidenced by a resolution of the Company's Board of Directors set forth in an Officers' Certificate delivered to the Trustee) and (ii) at least 75% of the consideration for such Asset Sale constitutes a controlling interest in a Permitted Business, long-term assets used or useful in a Permitted Business and/or cash or Cash Equivalents; provided that any cash or Cash Equivalents received by the Company or any of its Restricted Subsidiaries in connection with any Asset Sale permitted to be consummated under this paragraph shall constitute Net Proceeds subject to the provisions of the next succeeding paragraph. Within 365 days of the receipt of any Net Proceeds from an Asset Sale, the Company may apply such Net Proceeds, at its option, (i) to repay Senior Debt under a Credit Facility (and to correspondingly reduce commitments with respect thereto in the case of revolving borrowings) or (ii) to the acquisition of a controlling interest in a Permitted Business, the making of a capital expenditure or the acquisition of other long-term assets, in each case, used or useful in a Permitted Business. Pending the final application of any such Net Proceeds, the Company may temporarily reduce Senior Debt or otherwise invest such Net Proceeds in any manner that is not prohibited by this Indenture. Any Net Proceeds from Asset Sales that are not applied or invested as provided in the first sentence of this paragraph shall be deemed to constitute "Excess Proceeds." When the aggregate amount of Excess Proceeds exceeds $10.0 million, the Company shall be required to make an offer to all Holders of Notes and all holders of other pari passu Indebtedness containing provisions similar to those set forth in this Indenture with respect to offers to purchase or redeem such other pari passu Indebtedness with the proceeds of sales of assets (an "Asset Sale Offer") to purchase the maximum principal amount of Notes and such other pari passu Indebtedness that may be purchased out of the Excess Proceeds at an offer price in cash in an amount equal to 100% of the principal amount thereof, plus accrued and unpaid interest and Liquidated Damages, if any, thereon to the date of purchase, in accordance with the procedures set forth in this Indenture and in such other pari passu Indebtedness. To the extent that the aggregate amount of Notes and such other pari passu Indebtedness tendered pursuant to an Asset Sale Offer is less than the Excess Proceeds, the Company may use any remaining Excess Proceeds for any purpose not otherwise prohibited by this Indenture. If the aggregate principal amount of Notes and such other pari passu Indebtedness surrendered by Holders thereof exceeds the amount of Excess Proceeds, the Trustee shall select the Notes and such other pari passu Indebtedness to be purchased on a pro rata basis. Upon completion of an Asset Sale Offer, the amount of Excess Proceeds shall be reset at zero.foregoing if:
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 unless: 82 91
(iA) the Company (or such the Restricted Subsidiary, as the case may be, ) receives consideration at the time of such Asset Sale at least equal to the fair market value 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 set forth in an Officers' Certificate delivered to the Trustee) of the assets or Equity Interests issued or sold or otherwise disposed of and Directors; and
(iiC) at least 75% of the consideration therefor received by the Company or such Restricted Subsidiary is in the form of cash or Cash Equivalents; provided that . For purposes of this clause (C), each of the amount of following shall be deemed to be cash:
(a1) any liabilities (as shown on the Company's or such Restricted Subsidiary's most recent balance sheet) ), of the Company or such any Restricted Subsidiary (other than contingent liabilities and liabilities that are by their terms subordinated to the Notes or any guarantee thereof) that are assumed by the transferee of any such assets or that otherwise cease to be liabilities of the Company or Restricted Subsidiary pursuant to a customary novation or other agreement that releases the Company or such Restricted Subsidiary from further liability or such agreement discharges or satisfies such liability, ; and
(b2) any securities, notes or other obligations received by the Company or such any Restricted Subsidiary from in connection with such transferee disposition that are immediately (subject to ordinary settlement periods) converted by the Company or such Restricted Subsidiary into cash or Cash Equivalents (to the extent of the cash receivedor Cash Equivalents received in that conversion) and (c) escrowed cash that within 180 days of the Company reasonably believes will be released from escrow within 365 days from the date of consummation of such applicable Asset Sale, in each case shall be deemed to be cash for purposes of this provision. Notwithstanding the immediately preceding paragraphforegoing, the Company and its Restricted Subsidiaries will be permitted 75% limitation referred to consummate an in clause (C) shall not apply to any Asset Sale without complying with such paragraph if (i) in which the Company or the applicable Restricted Subsidiary, as the case may be, receives consideration at the time of such Asset Sale at least equal to the fair market value of the assets or other property sold, issued or otherwise disposed of (as evidenced by a resolution of the Company's Board of Directors set forth in an Officers' Certificate delivered to the Trustee) and (ii) at least 75% of the consideration for such Asset Sale constitutes a controlling interest in a Permitted Business, long-term assets used or useful in a Permitted Business and/or cash or Cash Equivalents; provided that any cash or Cash Equivalents portion of the consideration received by therefrom, determined in accordance with the Company foregoing provision, is equal to or any of its Restricted Subsidiaries in connection with any greater than what the after-tax proceeds would have been had such Asset Sale permitted to be consummated under this paragraph shall constitute Net Proceeds subject to complied with the provisions of the next succeeding paragraph. aforementioned 75% limitation.
(ii) Within 365 days of after the receipt of any Net Proceeds from an Asset Sale, the Company may apply such Net Proceeds, Proceeds at its option, : 83 92
(iA) to repay Senior Debt under or Indebtedness of a Credit Facility (and Restricted Subsidiary that is not a Guarantor and, if the Indebtedness repaid is revolving credit Indebtedness, to correspondingly reduce commitments with respect thereto in the case of revolving borrowings) or to that Indebtedness;
(iiB) to acquire all or substantially all of the acquisition assets of, or the Voting Stock of, any Person or any division of a controlling interest any Person that is engaged in a any Permitted Business, the making of a ;
(C) to make capital expenditure or the acquisition of expenditures; or
(D) to acquire other long-term assets, in each case, assets that are used or useful in a Permitted Business; provided that the requirements of clauses (B) through (D) above shall be deemed to be satisfied if an agreement (including a lease, whether a capital lease or an operating lease) committing to make the acquisitions or expenditures referred to therein is entered into by the Company or its Restricted Subsidiary within 365 days after the receipt of such Net Proceeds and such Net Proceeds are subsequently applied in accordance with such agreement. Notwithstanding the previous provision, in the event that a Restricted Subsidiary that is not a wholly owned Subsidiary effects an Asset Sale, whether or not such Restricted Subsidiary dividends or distributes to all of its stockholders (including the Company or another Restricted Subsidiary) on a pro rata basis any proceeds of such Asset Sale to the Company or another Restricted Subsidiary, the Company or such Restricted Subsidiary need only apply its pro rata share of such proceeds in accordance with the preceding clauses (A) through (D). Pending the final application of any such Net Proceeds, the Company and it Restricted Subsidiaries may temporarily reduce Senior Debt revolving credit borrowings or otherwise invest such Net Proceeds in any manner that is not prohibited by this Indenture. Any Net Proceeds from Asset Sales that are not applied or invested as provided in the first sentence of this preceding paragraph shall be deemed to will constitute "Excess Proceeds." When the aggregate amount of Excess Proceeds exceeds $10.0 15.0 million, the Company no later than 365 days after the receipt of the Net Proceeds giving rise to such Excess Proceeds, shall be required to make an offer Asset Sale Offer pursuant to Section 3.09 hereof to all Holders of Notes and all holders of other Indebtedness that is pari passu Indebtedness with the Notes containing provisions similar to those set forth in this Indenture with respect to offers to purchase or redeem such other pari passu Indebtedness required redemptions with the proceeds of sales of assets (an "Asset Sale Offer") to purchase the maximum principal amount of Notes and such other pari passu Indebtedness that may be purchased out of the Excess Proceeds Proceeds; provided, that the Company may, at an its option, make such Asset Sale 84 93 Offer prior to such 365th day. The offer price in cash in an amount any Asset Sale Offer will be equal to 100% of the principal amount thereof, plus accrued and unpaid interest and Liquidated Damages, if any, thereon to the date of purchase, and will be payable in accordance with the procedures set forth in this Indenture and in such other pari passu Indebtednesscash. To the extent that the aggregate amount If any Excess Proceeds remain after consummation of Notes and such other pari passu Indebtedness tendered pursuant to an Asset Sale Offer is less than the Excess ProceedsOffer, the Company may use any remaining such Excess Proceeds for any purpose not otherwise prohibited by this Indenture. If the aggregate principal amount of Notes and such other pari passu Indebtedness surrendered by Holders thereof tendered into such Asset Sale Offer exceeds the amount of Excess Proceeds, the Trustee shall select the Notes and such other pari passu Indebtedness to be purchased on a pro rata basisbasis based on the principal amount of Notes and such other pari passu Indebtedness tendered. Upon completion of an each Asset Sale Offer, the amount of Excess Proceeds shall be reset at zero. The Company shall comply with the requirements of Rule 14e-1 under the Exchange Act and any other securities laws and regulations thereunder to the extent such laws and regulations are applicable in connection with each repurchase of Notes pursuant to an Asset Sale Offer. To the extent that the provisions of any securities laws or regulations conflict with the Asset Sales provisions of this Indenture, the Company shall comply with the applicable securities laws and regulations and shall not be deemed to have breached its obligations under the Asset Sale provisions of this Indenture by virtue of such conflict.
Appears in 1 contract
Sources: Indenture (Advance Paradigm Inc)
Asset Sales. The Company shall not, and shall not permit any of its Restricted Subsidiaries to, consummate an engage in any Asset Sale Sale, unless (i) the Company or such Restricted Subsidiary, as the case may be, receives consideration at the time of such Asset Sale at least equal to the fair market value Fair Market Value (evidenced by a resolution of the Board of Directors set forth in an Officers' Certificate delivered to the Trustee) of the assets or Equity Interests issued or sold or otherwise disposed of and (ii) at least 75% of the consideration therefor received by the Company or such Restricted Subsidiary is in the form of cash or Cash Equivalents; provided provided, however, that the amount of (a) any liabilities (as shown on the Company's or such Restricted Subsidiary's most recent balance sheetsheet or in the notes thereto) of the Company or such Restricted Subsidiary (other than contingent liabilities and liabilities that are by their terms subordinated in right of payment to the Notes or any guarantee thereofNotes) that are assumed by the transferee of any such assets pursuant to a customary novation agreement that releases the Company or such Restricted Subsidiary from further liability, and (b) any securities, notes or other obligations received by the Company or such Restricted Subsidiary from such transferee that are immediately converted by the Company or such Restricted Subsidiary into cash (to the extent of the cash received) and (c) escrowed cash that the Company reasonably believes will be released from escrow within 365 days from the date of consummation of such Asset Sale), in each case shall be deemed to be cash for purposes of this provision. Notwithstanding the immediately preceding paragraph, the Company and its Restricted Subsidiaries will be permitted to consummate an Asset Sale without complying with such paragraph if (i) the Company or the applicable Restricted Subsidiary, as the case may be, receives consideration at the time of such Asset Sale at least equal to the fair market value of the assets or other property sold, issued or otherwise disposed of (as evidenced by a resolution of the Company's Board of Directors set forth in an Officers' Certificate delivered to the Trustee) and (ii) at least 75% of the consideration for such Asset Sale constitutes a controlling interest in a Permitted Business, long-term assets used or useful in a Permitted Business and/or cash or Cash Equivalents; provided that Within 360 days after any cash or Cash Equivalents received by the Company or any of its Restricted Subsidiaries in connection with any Asset Sale permitted to be consummated under this paragraph shall constitute Net Proceeds subject to the provisions of the next succeeding paragraph. Within 365 days of the receipt of any Net Proceeds from an Asset Sale, the Company may apply the Net Proceeds from such Net Proceeds, at its option, Asset Sale to (i) to repay permanently reduce Senior Debt under a Credit Facility (and to correspondingly reduce commitments with respect thereto in the case of revolving borrowings) or Debt, (ii) permanently reduce Indebtedness of the Restricted Subsidiary that sold properties or assets in the Asset Sale, or (iii) acquire properties and assets to replace properties and assets that were the acquisition subject of the Asset Sale or properties and assets that will be used in the same or a controlling interest similar line of business as the Company was engaged in a Permitted Business, on the making date of a capital expenditure or the acquisition of other long-term assets, in each case, used or useful in a Permitted Businessthis Indenture. Pending the final application of any such Net Proceeds, the Company may temporarily reduce Senior Debt or otherwise invest such Net Proceeds in any manner that is not prohibited by this Indenture. Any Net Proceeds from the Asset Sales Sale that are not applied or invested as provided in the first sentence of this paragraph shall will be deemed to constitute "Excess Proceeds." When the aggregate cumulative amount of Excess Proceeds exceeds $10.0 million, the Company shall be required to make an offer to all Holders of Notes and all holders of other pari passu Indebtedness containing provisions similar to those set forth in this Indenture with respect to offers to purchase or redeem such other pari passu Indebtedness with the proceeds of sales of assets (an "Asset Sale Offer") to purchase the maximum principal amount of Notes and such other pari passu Indebtedness that may be purchased out of the Excess Proceeds (and not solely the amount in excess of $10.0 million), at an offer price in cash in an amount equal to 100% of the principal amount thereof, thereof plus accrued and unpaid interest and Liquidated Damages, if any, thereon to the date of purchase, in accordance with the procedures set forth in this Indenture and in such other pari passu IndebtednessIndenture. To the extent that the aggregate amount of Notes and such other pari passu Indebtedness tendered pursuant to an Asset Sale Offer is less than the Excess Proceeds, the Company may use such deficiency for general corporate purposes in any remaining Excess Proceeds for any purpose not otherwise prohibited manner provided by this Indenture. If the aggregate principal amount of Notes and such other pari passu Indebtedness surrendered by Holders thereof exceeds the amount of Excess Proceeds, the Trustee shall select the Notes and such other pari passu Indebtedness to be purchased on a pro rata basis. Upon completion of an Asset Sale Offersuch offer to purchase, the amount of Excess Proceeds shall be reset at zero.. The Asset Sale Offer must be commenced within 30 days following the Asset Sale that triggers the Company's obligation to make the Asset Sale Offer and remain open for at least 30 and not more than 40 days (unless required by applicable law). The
Appears in 1 contract
Sources: Indenture (Synthetic Industries Inc)
Asset Sales. (a) The Company Borrower shall not, and shall not permit any of its Restricted Subsidiaries to, consummate consummate, directly or indirectly, an Asset Sale unless unless:
(i) the Company Borrower or such Restricted Subsidiary, as the case may be, receives consideration (including by way of relief from, or by any other Person assuming responsibility for, any liabilities, contingent or otherwise, in connection with such Asset Sale) at the time of such Asset Sale at least equal to the fair market value Fair Market Value (evidenced by a resolution measured at the time of the Board of Directors set forth in an Officers' Certificate delivered contractually agreeing to the Trusteesuch Asset Sale) of the assets or Equity Interests issued or sold or otherwise disposed of and of;
(ii) except in the case of a Permitted Asset Swap, at least 7575.0% of the consideration therefor (measured at the time of contractually agreeing to such Asset Sale) for such Asset Sale, together with all other Asset Sales completed or contractually agreed upon since the Issue Date (on a cumulative basis), received (or to be received) by the Company Borrower or such Restricted Subsidiary Subsidiary, as the case may be, is in the form of cash or Cash Equivalents; provided that the amount of ;
(aiii) any liabilities (as shown on the Company's or such Restricted Subsidiary's most recent balance sheet) of the Company or such Restricted Subsidiary (other than contingent liabilities and liabilities that are by their terms subordinated to the Notes or any guarantee thereof) that are assumed by the transferee of any such assets pursuant to a customary novation agreement that releases the Company or such Restricted Subsidiary from further liability, (b) any securities, notes or other obligations received by the Company or such Restricted Subsidiary from such transferee that are immediately converted by the Company or such Restricted Subsidiary into cash (to the extent of the cash received) and (c) escrowed cash that the Company reasonably believes will be released from escrow within 365 days from the date of consummation of such Asset Sale, the Borrower is in each case pro forma compliance with Sections 6.10(a) and (b); and
(iv) no Default or Event of Default has occurred and is continuing.
(b) Notwithstanding anything herein to the contrary, no Collateral may be transferred to any Unrestricted Subsidiary other than cash to service the Indebtedness (i) incurred in connection with the 2024 Financing Transactions and not to exceed the amount required to pay principal, interest, premiums, expenses, indemnities or fees then due and payable; provided the foregoing shall not be deemed to be cash for purposes permit regularly scheduled amortization payments other than the final payment of this provision. Notwithstanding the immediately preceding paragraph, the Company and its Restricted Subsidiaries will be permitted to consummate an Asset Sale without complying with such paragraph if (i) the Company or the applicable Restricted Subsidiary, as the case may be, receives consideration principal due 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 Company's Board of Directors set forth in an Officers' Certificate delivered to the Trustee) maturity and (ii) at least 75% of incurred prior to the consideration for such Asset Sale constitutes a controlling interest in a Permitted BusinessClosing Date by NFE South Power Holdings Limited and consistent with past practice.
(c) Notwithstanding anything herein to the contrary, long-term assets used or useful in a Permitted Business and/or cash or Cash Equivalents; provided that any cash or Cash Equivalents received by the Company or Borrower shall not, and shall not permit any of its Restricted Subsidiaries to, consummate, directly or indirectly, any sale, lease, conveyance, transfer or other disposition whether in connection with any Asset a single transaction or a series of related transactions (including by way of a Sale permitted to be consummated under this paragraph shall constitute Net Proceeds subject to the provisions and Lease-back Transaction), contribution, dividend or other investment of the next succeeding paragraph. Within 365 days of the receipt of any Net Proceeds from an Asset Sale, the Company may apply such Net Proceeds, at its option, (i) to repay Senior Debt under a Credit Facility (and to correspondingly reduce commitments with respect thereto in the case of revolving borrowings) any assets that constitute FLNG1 Assets, FLNG2 Assets or any Reinvested Assets other than Immaterial FLNG1 Maintenance Transactions or (ii) to the acquisition of a controlling interest any Equity Interests in a Permitted Business, the making of a capital expenditure any FLNG1 Subsidiaries or the acquisition of other long-term assetsFLNG2 Subsidiaries, in each case, used or useful in to any entity other than a Permitted Business. Pending the final application of any such Net Proceeds, the Company may temporarily reduce Senior Debt or otherwise invest such Net Proceeds in any manner Wholly-Owned Restricted Subsidiary that is not prohibited by this Indenture. Any Net Proceeds from Asset Sales a Guarantor; provided that are not applied or invested as provided in such Guarantor satisfies the first sentence requirements of this paragraph shall be deemed to constitute "Excess Proceeds." When the aggregate amount of Excess Proceeds exceeds $10.0 million, the Company shall be required to make an offer to all Holders of Notes and all holders of other pari passu Indebtedness containing provisions similar to those set forth in this Indenture with respect to offers to purchase or redeem such other pari passu Indebtedness with the proceeds of sales of assets (an "Asset Sale Offer") to purchase the maximum principal amount of Notes and such other pari passu Indebtedness that may be purchased out of the Excess Proceeds at an offer price in cash in an amount equal to 100% of the principal amount thereof, plus accrued and unpaid interest and Liquidated Damages, if any, thereon to the date of purchase, in accordance with the procedures set forth in this Indenture and in such other pari passu Indebtedness. To the extent that the aggregate amount of Notes and such other pari passu Indebtedness tendered pursuant to an Asset Sale Offer is less than the Excess Proceeds, the Company may use any remaining Excess Proceeds for any purpose not otherwise prohibited by this Indenture. If the aggregate principal amount of Notes and such other pari passu Indebtedness surrendered by Holders thereof exceeds the amount of Excess Proceeds, the Trustee shall select the Notes and such other pari passu Indebtedness to be purchased on a pro rata basis. Upon completion of an Asset Sale Offer, the amount of Excess Proceeds shall be reset at zero.Section
Appears in 1 contract
Sources: Letter of Credit and Reimbursement Agreement (New Fortress Energy Inc.)
Asset Sales. (a) The Company shall will not, and shall will not permit any of its Restricted Subsidiaries to, consummate an Asset Sale unless unless:
(i1) the Company (or such the Restricted Subsidiary, as the case may be, ) receives consideration at the time of such Asset Sale at least equal to the fair market value (evidenced by a resolution of the Board of Directors set forth in an Officers' Certificate delivered to the Trustee) Fair Market Value of the assets or Equity Interests issued or sold or otherwise disposed of; provided that this clause (1) shall not apply to an Asset Sale resulting solely from a foreclosure or sale by a third party upon assets or property subject to a Lien not prohibited by this Indenture;
(2) where such Fair Market Value exceeds $75.0 million, the Company’s determination of such Fair Market Value is set forth in an Officer’s Certificate delivered to the Trustee for informational purposes only and the Trustee’s receipt of such shall not constitute constructive notice of any information contained therein or determinable from information contained therein, including the Company’s compliance with any of its covenants (iias to which the Trustee is entitled to rely exclusively on Officer’s Certificates); and
(3) at least 75% of the consideration therefor received by the Company or such Restricted Subsidiary is in the form of cash cash, Cash Equivalents or Replacement Assets or a combination thereof. For purposes of this provision, each of the following shall be deemed to be Cash Equivalents; provided that the amount of :
(aA) any liabilities (as shown on the Company's ’s or such Restricted Subsidiary's ’s most recent balance sheet, or would be shown on the Company’s or such Restricted Subsidiary’s balance sheet on the date of such Asset Sale) of the Company or such any Restricted Subsidiary (other than contingent liabilities and liabilities Indebtedness that are is by their its terms subordinated to the Notes or any guarantee thereofNote Guarantee and liabilities to the extent owed to the Company or any Affiliate of the Company) that are assumed by the transferee of any such assets pursuant to a customary novation written agreement that releases the Company or such Restricted Subsidiary from further liability, liability therefor;
(bB) any securities, notes or other obligations received by the Company or any such Restricted Subsidiary from such transferee that are immediately converted (including by way of any Monetization Transaction) by the Company or such Restricted Subsidiary into cash or Cash Equivalents (to the extent of the cash receivedor Cash Equivalents received in that conversion) and (c) escrowed cash that the Company reasonably believes will be released from escrow within 365 180 days from the date of consummation of such Asset Sale, in each case shall ; and
(4) within 12 months from the later of (A) the date of such Asset Sale and (B) the receipt of the Net Proceeds from such Asset Sale (as may be deemed to be cash for purposes of this provision. Notwithstanding the immediately preceding paragraphextended by an Acceptable Commitment as set forth below, the Company and its Restricted Subsidiaries will be permitted “Proceeds Application Period”), an amount equal to consummate 100% of such Net Proceeds (the “Applicable Proceeds”) is applied:
(A) (I) to the extent such Net Proceeds are from an Asset Sale without complying with such paragraph if (i) of Collateral and the Company or the applicable any Restricted Subsidiary, as the case may be, receives consideration elects (or is required by the terms of any Indebtedness), to prepay, repay or purchase the Notes, the 2029 Secured Notes or any Credit Agreement Obligations or Additional First Lien Obligations, including Indebtedness under the Credit Agreement or the 2029 Secured Notes (or any Permitted Refinancing Indebtedness in respect thereof that have Pari Passu Lien Priority); provided that, to the extent the Company redeems, repays or repurchases such Credit Agreement Obligations, 2029 Secured Notes or Additional First Lien Obligations pursuant to this clause, the Company shall equally and ratably reduce the Notes Obligations as provided under Section 3.07, through open-market purchases (to the extent such purchases are at or above 100% of the time principal amount thereof) or by making an offer (in accordance with the procedures set forth below for an Asset Disposition Offer) to all Holders of Notes to purchase their Notes at 100% of the principal amount thereof, plus the amount of accrued but unpaid interest, if any, on the amount of Notes that would otherwise be prepaid; or (II) to the extent such Net Proceeds are from an Asset Sale of assets or property that do not constitute Collateral, (w) to reduce, prepay, repay or purchase any Indebtedness secured by a Lien on such asset, (x) to reduce, prepay, repay or purchase Credit Agreement Obligations, 2029 Secured Notes, 2029 Unsecured Notes, the Convertible Notes or Additional First Lien Obligations; provided that, to the extent the Company redeems, repays or repurchases such Credit Agreement Obligations, 2029 Secured Notes, 2029 Unsecured Notes, the Convertible Notes or Additional First Lien Obligations pursuant to this clause (x), the Company shall equally and ratably reduce the Notes Obligations as provided under Section 3.07 through open-market purchases (to the extent such purchases are at least or above 100% of the principal amount thereof) or by making an offer (in accordance with the procedures set forth below for an Asset Disposition Offer) to all Holders of Notes to purchase their Notes at 100% of the principal amount thereof, plus the amount of accrued but unpaid interest, if any, on the amount of Notes that would otherwise be prepaid, (y) to make an offer (in accordance with the procedures set forth below for an Asset Disposition Offer) to redeem Notes as described under Section 3.07 or purchase Notes through open-market purchases or in privately negotiated transactions, or (z) to reduce, prepay, repay or purchase any other Indebtedness of a Non-Guarantor Subsidiary (in each case, other than Indebtedness owed to a Company or any Restricted Subsidiary); and
(B) to the extent the Company or any Restricted Subsidiary elects, to invest in or commit to invest in Additional Assets (including by means of an investment in Additional Assets by a Restricted Subsidiary equal to the fair market value amount of the assets or other property sold, issued or otherwise disposed of (as evidenced by a resolution of the Company's Board of Directors set forth in an Officers' Certificate delivered to the Trustee) and (ii) at least 75% of the consideration for such Asset Sale constitutes a controlling interest in a Permitted Business, long-term assets used or useful in a Permitted Business and/or cash or Cash Equivalents; provided that any cash or Cash Equivalents Net Proceeds received by the Company or any another Restricted Subsidiary) within 12 months from the later of its Restricted Subsidiaries in connection with any (i) the date of such Asset Sale permitted to be consummated under this paragraph shall constitute Net Proceeds subject to the provisions of the next succeeding paragraph. Within 365 days of and (ii) the receipt of any such Net Proceeds; provided that a binding agreement shall be treated as a permitted application of Net Proceeds from the date of such commitment with the good faith expectation that an Asset Sale, amount equal to Net Proceeds will be applied to satisfy such commitment within 180 days of such commitment (an “Acceptable Commitment”); or
(C) any combination of the Company may apply such Net Proceeds, at its option, foregoing; provided that (i1) to repay Senior Debt under a Credit Facility (and to correspondingly reduce commitments with respect thereto in the case of revolving borrowings) or (ii) to the acquisition of a controlling interest in a Permitted Business, the making of a capital expenditure or the acquisition of other long-term assets, in each case, used or useful in a Permitted Business. Pending pending the final application of the amount of any such Net ProceedsApplicable Proceeds pursuant to this Section 4.10, the Company or the applicable Restricted Subsidiaries may apply such Applicable Proceeds temporarily to reduce Senior Debt Indebtedness (including under the Credit Agreement) or otherwise invest apply such Net Applicable Proceeds in any manner that is not prohibited by this Indenture. Any Net , and (2) the Company (or any Restricted Subsidiary, as the case may be) may elect to invest in Additional Assets prior to receiving the Applicable Proceeds attributable to any given Asset Sale (provided that such investment shall be made no earlier than the earliest of written notice to the Trustee of the relevant Asset Sale (which notice shall be for informational purposes only and the Trustee’s receipt of such shall not constitute constructive notice of any information contained therein or determinable from information contained therein, including the Company’s compliance with any of its covenants (as to which the Trustee is entitled to rely exclusively on Officer’s Certificates)), execution of a definitive agreement for the relevant Asset Sales Sale, and consummation of the relevant Asset Sale) and deem the amount so invested to be applied pursuant to and in accordance with clause (a)(4)(B) above with respect to such Asset Sale.
(b) If, with respect to any Asset Sale of Collateral, at the expiration of the Proceeds Application Period with respect to such Asset Sale, there remains Applicable Proceeds in excess of $150,000,000 (such amount of Applicable Proceeds that are not applied or invested as provided in the first sentence of this paragraph shall be deemed equal to constitute "$150,000,000, “Declined Collateral Excess Proceeds." When the aggregate ,” and such amount of Applicable Proceeds that are in excess of $150,000,000, “Collateral Excess Proceeds exceeds $10.0 millionProceeds”), then subject to the limitations with respect to Foreign Dispositions set forth below, the Company shall be required to make an offer (a “Collateral Asset Disposition Offer”) no later than ten Business Days after the expiration of the Proceeds Application Period to all Holders of Notes and (with a copy to the Trustee) and, if required by the terms of any Credit Agreement Obligations, 2029 Secured Notes or Additional First Lien Obligations, to all holders of other pari passu Indebtedness containing provisions similar to those set forth in this Indenture with respect to offers to purchase such Credit Agreement Obligations, the 2029 Secured Notes or redeem such other pari passu Indebtedness with the proceeds of sales of assets (an "Asset Sale Offer") Additional First Lien Obligations, to purchase the maximum principal amount of such Notes, Credit Agreement Obligations, 2029 Secured Notes and such other pari passu Indebtedness or Additional First Lien Obligations, as appropriate, on a pro rata basis, that may be purchased out of the such Collateral Excess Proceeds Proceeds, if any, at an offer price price, in the case of the Notes, in cash in an amount equal to 100% of the principal amount thereof (or in the event such other Indebtedness was issued with original issue discount, 100% of the accreted value thereof), plus accrued and unpaid interest and Liquidated Damagesinterest, if any (or such lesser price with respect to Credit Agreement Obligations, 2029 Secured Notes or Additional First Lien Obligations, if any, thereon to as may be provided by the terms of such other Indebtedness), to, but not including, the date fixed for the closing of purchasesuch offer, in accordance with the procedures set forth in this Indenture and the agreement governing the Credit Agreement Obligations, 2029 Secured Notes or Additional First Lien Obligations, as applicable, in minimum denominations of $2,000 and in integral multiples of $1,000 in excess thereof. Notices of a Collateral Asset Disposition Offer shall be sent by first class mail or sent electronically, at least 10 days but not more than 60 days before the purchase date to each Holder of the Notes at such other pari passu IndebtednessHolder’s registered address or otherwise in accordance with the applicable procedures of DTC, with a copy to the Trustee. The Company may satisfy the foregoing obligation with respect to the Applicable Proceeds by making a Collateral Asset Disposition Offer prior to the expiration of the Proceeds Application Period (the “Collateral Advance Offer”) with respect to all or a part of the Applicable Proceeds (the “Collateral Advance Portion”) in advance of being required to do so by this Indenture.
(c) To the extent that the aggregate amount (or accreted value, as applicable) of Notes and such and, if applicable, any other pari passu Indebtedness Credit Agreement Obligations, 2029 Secured Notes or Additional First Lien Obligations, as the case may be, validly tendered pursuant to an or otherwise surrendered in connection with a Collateral Asset Sale Disposition Offer made with Collateral Excess Proceeds (or, in the case of a Collateral Advance Offer, the Collateral Advance Portion) is less than the Excess Proceedsamount offered in a Collateral Asset Disposition Offer, the Company may use include any remaining Collateral Excess Proceeds (or, in the case of a Collateral Advance Offer, the Collateral Advance Portion) in Declined Collateral Excess Proceeds, and use such Declined Collateral Excess Proceeds for any purpose not otherwise prohibited by this Indenture. If the aggregate principal amount (or accreted value, as applicable) of the Notes and such other pari passu Indebtedness surrendered by Holders thereof or, if applicable, Credit Agreement Obligations, 2029 Secured Notes or Additional First Lien Obligations validly tendered pursuant to any Collateral Asset Disposition Offer exceeds the amount of Collateral Excess ProceedsProceeds (or, in the case of a Collateral Advance Offer, the Trustee Collateral Advance Portion), the Company shall select allocate the Collateral Excess Proceeds among the Notes, the Credit Agreement Obligations, the 2029 Secured Notes and such other pari passu Indebtedness the Additional First Lien Obligations to be purchased on a pro rata basisbasis on the basis of the aggregate principal amount (or accreted value, as applicable) of tendered Notes, Credit Agreement Obligations, 2029 Secured Notes and Additional First Lien Obligations; provided that no Notes, Credit Agreement Obligations, 2029 Secured Notes or Additional First Lien Obligations will be selected and purchased in an unauthorized denomination. Upon completion of an any Collateral Asset Sale Disposition Offer, the amount of Applicable Proceeds and Collateral Excess Proceeds shall be reset at zero.
(d) If, with respect to any Asset Sale of assets or property that do not constitute Collateral, at the expiration of the Proceeds Application Period with respect to such Asset Sale, there remains Applicable Proceeds in excess of $150,000,000 (such amount of Applicable Proceeds that are equal to $150,000,000, “Declined Excess Proceeds,” and such amount of Applicable Proceeds that are in excess of $150,000,000, “Excess Proceeds”), then subject to the limitations with respect to Foreign Dispositions set forth below, the Company shall make an offer (an “Asset Disposition Offer”) no later than ten Business Days after the expiration of the Proceeds Application Period to all Holders of Notes and, if required by the terms of any Credit Agreement Obligations, 2029 Secured Notes, the 2029 Unsecured Notes, Convertible Notes or Additional First Lien Obligations, to all holders of such Credit Agreement Obligations, 2029 Secured Notes, 2029 Unsecured Notes, Convertible Notes or Additional First Lien Obligations, to purchase the maximum principal amount of such Notes and Credit Agreement Obligations, 2029 Secured Notes, 2029 Unsecured Notes, Convertible Notes or Additional First Lien Obligations, as appropriate, on a pro rata basis, that may be purchased out of such Excess Proceeds, if any, at an offer price, in the case of the Notes, in cash in an amount equal to 100% of the principal amount thereof (or in the event such other Indebtedness was issued with original issue discount, 100% of the accreted value thereof), plus accrued and unpaid interest, if any (or such lesser price with respect to Credit Agreement Obligations, 2029 Secured Notes, 2029 Unsecured Notes, Convertible Notes and Additional First Lien Obligations, if any, as may be provided by the terms of such other Indebtedness), to, but not including, the date fixed for the closing of such offer, in accordance with the procedures set forth in this Indenture and the agreement governing the Credit Agreement Obligations, 2029 Secured Notes, 2029 Unsecured Notes, Convertible Notes or Additional First Lien Obligations, as applicable, in minimum denominations of $2,000 and in integral multiples of $1,000 in excess thereof. Notices of an Asset Disposition Offer shall be sent by first class mail or sent electronically, at least 10 days but not more than 60 days before the purchase date to each Holder of the Notes at such Holder’s registered address or otherwise in accordance with the applicable procedures of DTC, with a copy to the Trustee. The Company may satisfy the foregoing obligation with respect to the Applicable Proceeds by making an Asset Disposition Offer prior to the expiration of the Proceeds Application Period (the “Advance Offer”) with respect to all or a part of the Applicable Proceeds (the “Advance Portion”) in advance of being required to do so by this Indenture.
(e) To the extent that the aggregate amount (or accreted value, as applicable) of Notes and, if applicable, any other Credit Agreement Obligations, 2029 Secured Notes, 2029 Unsecured Notes, Convertible Notes or Additional First Lien Obligations validly tendered or otherwise surrendered in connection with an Asset Disposition Offer made with Excess Proceeds (or, in the case of an Advance Offer, the Advance Portion) is less than the amount offered in an Asset Disposition Offer, the Company may include any remaining Excess Proceeds (or, in the case of an Advance Offer, the Advance Portion) in Declined Excess Proceeds, and use such Declined Excess Proceeds for any purpose not otherwise prohibited by this Indenture. If the aggregate principal amount (or accreted value, as applicable) of the Notes or, if applicable, Credit Agreement Obligations, 2029 Secured Notes, 2029 Unsecured Notes, Convertible Notes or Additional First Lien Obligations validly tendered pursuant to any Asset Disposition Offer exceeds the amount of Excess Proceeds (or, in the case of an Advance Offer, the Advance Portion), the Company shall allocate the Excess Proceeds among the Notes, Credit Agreement Obligations, 2029 Secured Notes, 2029 Unsecured Notes, Convertible Notes and Additional First Lien Obligations to be purchased on a pro rata
Appears in 1 contract
Sources: Indenture (AMC Networks Inc.)
Asset Sales. (a) The Company shall not, and shall not permit any of its Restricted Subsidiaries Subsidiary to, consummate consummate, directly or indirectly, an Asset Sale unless Sale, unless:
(i1) the Company or such Restricted Subsidiary, as the case may be, receives consideration at the time of such Asset Sale at least equal to the fair market value (evidenced by a resolution as determined at the time of the Board of Directors set forth in an Officers' Certificate delivered contractually agreeing to the Trusteesuch sale) of the assets or Equity Interests issued or sold or otherwise disposed of and of; and
(ii2) at least 75% of the consideration therefor received by the Company or such Restricted Subsidiary is except in the form case of cash or Cash Equivalents; provided that the amount of (a) any liabilities (as shown on the Company's or such Restricted Subsidiary's most recent balance sheet) of the Company or such Restricted Subsidiary (other than contingent liabilities and liabilities that are by their terms subordinated to the Notes or any guarantee thereof) that are assumed by the transferee of any such assets pursuant to a customary novation agreement that releases the Company or such Restricted Subsidiary from further liabilityPermitted Asset Swap, (b) any securities, notes or other obligations received by the Company or such Restricted Subsidiary from such transferee that are immediately converted by the Company or such Restricted Subsidiary into cash (to the extent of the cash received) and (c) escrowed cash that the Company reasonably believes will be released from escrow within 365 days from the date of consummation of such Asset Sale, in each case shall be deemed to be cash for purposes of this provision. Notwithstanding the immediately preceding paragraph, the Company and its Restricted Subsidiaries will be permitted to consummate an Asset Sale without complying with such paragraph if (i) the Company or the applicable Restricted Subsidiary, as the case may be, receives consideration at the time of such Asset Sale at least equal to the fair market value of the assets or other property sold, issued or otherwise disposed of (as evidenced by a resolution of the Company's Board of Directors set forth in an Officers' Certificate delivered to the Trustee) and (ii) at least 75% of the consideration for such Asset Sale constitutes Sale, together with all other Asset Sales since the Issue Date (on a controlling interest in a Permitted Business, long-term assets used or useful in a Permitted Business and/or cash or Cash Equivalents; provided that any cash or Cash Equivalents cumulative basis) received by the Company or any and the Restricted Subsidiaries, is in the form of its Restricted Subsidiaries in connection with any Asset Sale permitted to be consummated under this paragraph shall constitute Net Proceeds subject to the provisions of the next succeeding paragraph. Cash Equivalents.
(b) Within 365 450 days of after the receipt of any Net Proceeds from an of any Asset Sale, the Company or such Restricted Subsidiary, at its option, may apply the Net Proceeds from such Net ProceedsAsset Sale,
(1) to permanently reduce:
(a) Obligations under the New Credit Agreement, and to correspondingly reduce commitments with respect thereto;
(b) Obligations under Senior Indebtedness of the Company or a Guarantor that is secured by a Lien, which Lien is permitted by this Indenture, and to correspondingly reduce commitments with respect thereto;
(c) Obligations under the Notes or any other Senior Indebtedness (and, in the case of other Senior Indebtedness, to correspondingly reduce commitments with respect thereto, if applicable) or make an offer to purchase the Notes or such other Senior Indebtedness; provided that, if the Company or any Restricted Subsidiary shall so repay or make an offer to purchase any Senior Indebtedness other than the Notes, the Company shall either (A) reduce Obligations under the Notes on a pro rata basis by, at its option, (i) to repay Senior Debt redeeming the Notes as provided under a Credit Facility (and to correspondingly reduce commitments with respect thereto in the case of revolving borrowings) Section 3.07, or (ii) purchasing the Notes through open-market purchases or in privately negotiated transactions at market prices (which may be below par), or (B) make an offer (in accordance with the procedures set forth below for an Asset Sale Offer) to all Holders to purchase their Notes, on a ratable basis with such other Senior Indebtedness for no less than 100% of the principal amount thereof, plus the amount of accrued but unpaid interest, if any, thereon up to the principal amount of Notes to be repurchased; or
(d) Indebtedness of a Restricted Subsidiary that is not 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 a controlling interest in Restricted Subsidiary, as the case may be, owning an amount of the Capital Stock of such business such that it constitutes or continues to constitute a Permitted BusinessRestricted Subsidiary, the making of a (b) capital expenditure expenditures or the acquisition (c) acquisitions of other long-term assetsassets that, in each caseof (a), (b) and (c), are either (i) used or useful in a Permitted Business. Pending Similar Business or (ii) replace in whole or in part the final businesses or assets that are the subject of such Asset Sale; provided that, in the case of clause (2) in this Section 4.10(b), a binding commitment shall be treated as a permitted application of the Net Proceeds from the date of such commitment so long as the Company or Restricted Subsidiary enters into such commitment with the good faith expectation that such Net Proceeds shall be applied to satisfy such commitment within the later of such 450th day and 180 days of such commitment (an “Acceptable Commitment”); and, in the event any Acceptable Commitment is later cancelled or terminated for any reason before the Net Proceeds are applied in connection therewith, then such Net Proceeds shall constitute Excess Proceeds unless the Company or Restricted Subsidiary enters into another Acceptable Commitment (a “Second Commitment”) within 180 days of such cancellation or termination (or, if later, 450 days after receipt of such Net Proceeds, the Company may temporarily reduce Senior Debt ); provided further that if any Second Commitment is later cancelled or otherwise invest terminated for any reason before such Net Proceeds in any manner that is not prohibited by this Indenture. are applied, then such Net Proceeds shall constitute Excess Proceeds.
(c) Any Net Proceeds from an Asset Sales Sale (other than any amounts excluded from this Section 4.10 pursuant to Section 4.10(g)) that are not invested or applied or invested as provided and within the time period set forth in the first sentence of this paragraph Section 4.10(b) shall be deemed to constitute "“Excess Proceeds." ” When the aggregate amount of Excess Proceeds exceeds $10.0 million50,000,000 (the “Excess Proceeds Threshold”), the Company shall be required to make an offer to all Holders Holders, and, if and to the extent required by the terms of any Indebtedness that is pari passu with the Notes and all (“Pari Passu Indebtedness”), to the holders of other pari passu such Pari Passu Indebtedness containing provisions similar to those set forth in this Indenture with respect to offers to purchase or redeem such other pari passu Indebtedness with the proceeds of sales of assets (an "“Asset Sale Offer") ”), to purchase the maximum aggregate principal amount of the Notes and such other pari passu Pari Passu Indebtedness that is equal to $2,000 or an integral multiple of $1,000 in excess thereof that may be purchased out of the Excess Proceeds at an offer price in cash in an amount equal to 100% of the principal amount thereof (or accreted value thereof, if less), plus accrued and unpaid interest, if any, to, but excluding, the date fixed for the closing of such offer, and in the case of any Pari Passu Indebtedness, at the offer price required by the terms thereof but not to exceed 100.0% of the principal amount thereof, plus accrued and unpaid interest and Liquidated Damagesinterest, if any, thereon to the date of purchase, in accordance with the procedures set forth in this Indenture and in the agreement governing such other pari passu Pari Passu Indebtedness. The Company shall commence an Asset Sale Offer with respect to Excess Proceeds within fifteen (15) Business Days after the date that Excess Proceeds exceed the Excess Proceeds Threshold by sending the notice required pursuant to the terms of this Indenture, with a copy to the Trustee or otherwise in accordance with the procedures of DTC. The Company may satisfy the foregoing obligation with respect to such Net Proceeds from an Asset Sale by making an Asset Sale Offer with respect to all or a portion of the available Net Proceeds (the “Advance Portion”) in advance of being required to do so by this Indenture (the “Advance Offer”).
(d) To the extent that the aggregate principal amount (or accreted value, as applicable) of Notes and such other pari passu Pari Passu Indebtedness tendered pursuant to an Asset Sale Offer is less than the Excess ProceedsProceeds (or, in the case of an Advance Offer, the Advance Portion), the Company may use any remaining Excess Proceeds (or, in the case of an Advance Offer, the Advance Portion) for such amount offered in any purpose manner not otherwise prohibited by this IndentureIndenture and the obligations of the Company and its Restricted Subsidiaries described in this Section 4.10 shall be deemed to have been satisfied to the extent of any such Asset Sale Offer and Advance Offer so made regardless of the amount tendered or surrendered pursuant thereto. If the aggregate principal amount (or accreted value, as applicable) of Notes and such other pari passu or the Pari Passu Indebtedness surrendered by such Holders and holders thereof exceeds the amount of Excess ProceedsProceeds (or, in the case of an Advance Offer, the Trustee Advance Portion), the Company shall select the Notes and such other pari passu Pari Passu Indebtedness to be purchased on a pro rata basisbasis based on the accreted value or principal amount of the Notes or such Pari Passu Indebtedness tendered. Upon completion of an any such Asset Sale Offer, the amount of Excess Proceeds shall be reset at zero, but in the case of an Advance Offer, the amount of Net Proceeds the Company is offering to apply in such Advance Offer shall be excluded in subsequent calculations of Excess Proceeds. Additionally, upon consummation or expiration of any Asset Sale Offer or Advance Offer, any remaining Net Proceeds shall not be deemed Excess Proceeds and the Company and its Restricted Subsidiaries may use such Net Proceeds for any purpose not otherwise prohibited under this Indenture.
(e) Pending the final application of any Net Proceeds pursuant to this Section 4.10, the holder of such Net Proceeds may apply such Net Proceeds temporarily to reduce Indebtedness outstanding under a revolving credit facility (including under the New Credit Agreement) or otherwise invest such Net Proceeds in any manner not prohibited by this Indenture.
(f) For purposes of this Section 4.10, the following are deemed to be Cash Equivalents:
(1) any liabilities (as shown on the Company’s, or such Restricted Subsidiary’s, most recent balance sheet or in the notes thereto, or if incurred or accrued subsequent to the date of such balance sheet, such liabilities that would have been shown on the Company’s or such Restricted Subsidiary’s balance sheet or in the footnotes thereto if such incurrence or accrual had taken place on or prior to the date of such balance sheet, as determined in good faith by the Company) of the Company or any Restricted Subsidiary, other than liabilities that are by their terms subordinated to the Notes, that are assumed by the transferee of any such assets (or are otherwise extinguished in connection with the transactions relating to such Asset Sale) and for which the Company and all Restricted Subsidiaries have been validly released by all creditors in writing;
(2) any securities, notes or other obligations received by the Company or such Restricted Subsidiary from such transferee that are converted by the Company or such Restricted Subsidiary into Cash Equivalents (to the extent of the Cash Equivalents received) within 180 days following the closing of such Asset Sale; and
(3) any Designated Non-cash Consideration received by the Company or such Restricted Subsidiary in such Asset Sale having an aggregate fair market value, taken together with all other Designated Non-cash Consideration received pursuant to this clause (3) that is at that time outstanding, not to exceed the greater of (x) $55,000,000 and (y) 20.0% of Consolidated EBITDA at the time of the receipt of such Designated Non-cash Consideration, with the fair market value of each item of Designated Non-cash Consideration being measured at the time received and without giving effect to subsequent changes in value.
(g) Notwithstanding any other provisions of this Section 4.10, (i) to the extent that any or all of the Net Proceeds of any Asset Sale by a Foreign Subsidiary (a “Foreign Disposition”) is prohibited or delayed by applicable local law, an amount equal to the portion of such Net Proceeds so affected will not be required to be applied in compliance with this Section 4.10, and such amounts may be retained by the applicable Foreign Subsidiary; provided that if at any time within one year following the date on which the respective payment would otherwise have been required, such repatriation of any of such affected Net Proceeds is permitted under the applicable local law, an amount equal to such amount of Net Proceeds so permitted to be repatriated will be promptly applied (net of any taxes, costs or expenses that would be payable or reserved against if such amounts were actually repatriated whether or not they are repatriated) in compliance with this Section 4.10 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 would result in material adverse tax consequences (which, for the avoidance of doubt, includes, but is not limited to, any material tax liability as a result of a deemed dividend pursuant to Section 956 of the Code or a withholding tax) to the Company, any of its Subsidiaries or any Parent Entity, the Net Proceeds so affected may be retained by the applicable Foreign Subsidiary and an amount equal to such Net Proceeds will not be required to be applied in compliance with this Section 4.10. The non-application of any prepayment amounts as a consequence of the foregoing provisions will not, for the avoidance of doubt, constitute a Default or an Event of Default. For the avoidance of doubt, nothing in this Indenture shall be construed to require any Subsidiary to repatriate cash.
Appears in 1 contract
Sources: Indenture (Healthequity, Inc.)
Asset Sales. The Company shall Borrower will not, and shall will not permit any of its Restricted the Subsidiaries to, consummate an Asset Sale unless sell, transfer, lease or otherwise dispose of any asset, including any Equity Interest owned by it, nor will the Borrower permit any of its Subsidiaries to issue any additional Equity Interest in such Subsidiary, except:
(a) sales of inventory, obsolete or surplus equipment and Permitted Investments in the ordinary course of business;
(b) sales, transfers and dispositions to the Borrower or a Subsidiary; provided that any such sales, transfers or dispositions involving a Subsidiary that is not a Loan Party shall be made in compliance with Section 6.09;
(c) sales of accounts receivable, inventory and the Proceeds thereof under any Securitization; provided that the aggregate amount of the inventory subject to any such Securitization shall not exceed $500,000,000 at any time;
(d) sales, transfers and other dispositions of assets that are not permitted by any other clause of this Section; provided that (i) the Company or such Restricted Subsidiary, as the case may be, receives consideration at the time of such Asset Sale at least equal to the aggregate fair market value (evidenced by a resolution of the Board of Directors set forth in an Officers' Certificate delivered to the Trustee) of the all assets or Equity Interests issued or sold sold, transferred or otherwise disposed of in reliance upon this clause (d) shall not exceed, during any fiscal year of the Borrower, the sum of (A) $25,000,000 and (B) any remaining portion of such basket not utilized for such purposes during the immediately preceding fiscal year (provided that such carryforward amounts may be utilized only after the basket for the current year has been fully utilized, and no such unused amount may be carried forward more than one fiscal year) and (ii) at least 75% any retained Equity Interests in any Subsidiary in which any Equity Interests have been sold, transferred or otherwise disposed of shall be deemed to be noncash consideration received in respect of such sale, transfer or other disposition; and
(e) sales, transfers and other dispositions of assets in connection with the consideration therefor received by Mergers (including sales in connection with the Company or such Restricted Subsidiary is in the form integration and consolidation of cash or Cash Equivalentsoperations); provided that (i) the amount aggregate fair market value of all assets sold, transferred or otherwise disposed of in reliance upon this clause (ae) any liabilities shall not exceed $250,000,000 in the aggregate and (as shown on ii) the Company's or such Restricted Subsidiary's most recent balance sheet) of the Company or such Restricted Subsidiary Net Proceeds therefrom shall be used to prepay Loans in accordance with Section 2.11(c); provided that all sales, transfers, leases and other dispositions permitted hereby (other than contingent liabilities and liabilities that are those permitted by their terms subordinated to the Notes or any guarantee thereof) that are assumed by the transferee of any such assets pursuant to a customary novation agreement that releases the Company or such Restricted Subsidiary from further liability, clauses (b) any securities, notes or other obligations received by the Company or such Restricted Subsidiary from such transferee that are immediately converted by the Company or such Restricted Subsidiary into cash (to the extent of the cash received) and (c) escrowed cash that the Company reasonably believes will be released from escrow within 365 days from the date of consummation of such Asset Sale, in each case above) shall be deemed to be cash made for purposes of this provision. Notwithstanding the immediately preceding paragraph, the Company fair value and its Restricted Subsidiaries will be permitted to consummate an Asset Sale without complying with such paragraph if (i) the Company or the applicable Restricted Subsidiary, as the case may be, receives consideration at the time of such Asset Sale for at least equal 80% cash consideration (it being understood that all noncash consideration constituting investments, and the retention of minority interests in sold Subsidiaries, shall be subject to the fair market value of the assets or other property sold, issued or otherwise disposed of (as evidenced by a resolution of the Company's Board of Directors set forth in an Officers' Certificate delivered to the TrusteeSections 6.04(l) and (ii) at least 75% of m), and that contingent payouts, earnouts and similar consideration will be valued based upon the maximum consideration for such Asset Sale constitutes a controlling interest in a Permitted Business, long-term assets used or useful in a Permitted Business and/or cash or Cash Equivalents; provided that any cash or Cash Equivalents received by the Company or any of its Restricted Subsidiaries in connection with any Asset Sale permitted to be consummated under this paragraph shall constitute Net Proceeds subject to the provisions of the next succeeding paragraph. Within 365 days of the receipt of any Net Proceeds from an Asset Sale, the Company may apply such Net Proceeds, at its option, (i) to repay Senior Debt under a Credit Facility (and to correspondingly reduce commitments with respect thereto in the case of revolving borrowings) or (ii) to the acquisition of a controlling interest in a Permitted Business, the making of a capital expenditure or the acquisition of other long-term assets, in each case, used or useful in a Permitted Business. Pending the final application of any such Net Proceeds, the Company may temporarily reduce Senior Debt or otherwise invest such Net Proceeds in any manner that is not prohibited by this Indenture. Any Net Proceeds from Asset Sales that are not applied or invested as provided in the first sentence of this paragraph shall be deemed to constitute "Excess Proceeds." When the aggregate amount of Excess Proceeds exceeds $10.0 million, the Company shall be required to make an offer to all Holders of Notes and all holders of other pari passu Indebtedness containing provisions similar to those set forth in this Indenture with respect to offers to purchase or redeem such other pari passu Indebtedness with the proceeds of sales of assets (an "Asset Sale Offer") to purchase the maximum principal amount of Notes and such other pari passu Indebtedness that may be purchased out of the Excess Proceeds at an offer price in cash in an amount equal to 100% of the principal amount thereof, plus accrued and unpaid interest and Liquidated Damages, if any, thereon to the date of purchase, in accordance with the procedures set forth in this Indenture and in such other pari passu Indebtedness. To the extent that the aggregate amount of Notes and such other pari passu Indebtedness tendered pursuant to an Asset Sale Offer is less than the Excess Proceeds, the Company may use any remaining Excess Proceeds for any purpose not otherwise prohibited by this Indenture. If the aggregate principal amount of Notes and such other pari passu Indebtedness surrendered by Holders thereof exceeds the amount of Excess Proceeds, the Trustee shall select the Notes and such other pari passu Indebtedness to be purchased received on a pro rata basis. Upon completion of an Asset Sale Offer, the amount of Excess Proceeds shall be reset at zeropresent value basis based upon reasonable assumptions).
Appears in 1 contract
Asset Sales. (a) The Company shall not, and shall not permit any of its Restricted Subsidiaries to, consummate engage in an Asset Sale unless (i) the Company (or such Restricted the Subsidiary, as the case may be, ) receives consideration at the time of such Asset Sale at least equal to the fair market value (evidenced by a resolution of the Board of Directors set forth in an Officers' Certificate delivered to the Trustee) of the assets or Equity Interests issued or sold or otherwise disposed of and (ii) at least 75% of the consideration therefor received by the Company or such Restricted Subsidiary is in the form of (a) cash or Cash EquivalentsEquivalents or (b) Qualified Proceeds; provided provided, that the aggregate fair market value of Qualified Proceeds that may be received pursuant to this clause (ii)(b) shall not exceed an aggregate of $10.0 million after the date of this Indenture; provided, further, that the amount of (ax) any liabilities (as shown on the Company's or such Restricted Subsidiary's most recent balance sheet) ), of the Company or such Restricted any Subsidiary of the Company (other than contingent liabilities and liabilities that are by their terms subordinated to the Notes or any guarantee thereof) that are assumed by the transferee of any such assets pursuant to a customary novation agreement that releases the Company or such Restricted Subsidiary from further liability, liability and (by) any securities, notes or other obligations received by the Company or any such Restricted Subsidiary from such transferee that are immediately promptly (and in any event, in not more than 60 days) converted by the Company or such Restricted Subsidiary into cash or Cash Equivalents (to the extent of the cash or Cash Equivalents received) and (c) escrowed cash that the Company reasonably believes will be released from escrow within 365 days from the date of consummation of such Asset Sale), in each case shall be deemed to be cash for purposes of this provision. Notwithstanding the immediately preceding paragraph, the Company and its Restricted Subsidiaries will be permitted to consummate an Asset Sale without complying with such paragraph if .
(ib) the Company or the applicable Restricted Subsidiary, as the case may be, receives consideration at the time of such Asset Sale at least equal to the fair market value of the assets or other property sold, issued or otherwise disposed of (as evidenced by a resolution of the Company's Board of Directors set forth in an Officers' Certificate delivered to the Trustee) and (ii) at least 75% of the consideration for such Asset Sale constitutes a controlling interest in a Permitted Business, long-term assets used or useful in a Permitted Business and/or cash or Cash Equivalents; provided that any cash or Cash Equivalents received by the Company or any of its Restricted Subsidiaries in connection with any Asset Sale permitted to be consummated under this paragraph shall constitute Net Proceeds subject to the provisions of the next succeeding paragraph. Within 365 360 days of after the receipt of any Net Proceeds from an Asset Sale, the Company may apply such Net Proceeds, Proceeds at its option, option to (i) permanently retire revolving indebtedness or other obligations either under the Revolving Credit Agreement or the Gold Consignment Agreement (or a substantially similar gold consignment agreement pursuant to repay Senior Debt under Section 4.09(b)(iv)(y)(b) hereof) or a Credit Facility combination thereof (and to correspondingly permanently reduce revolving borrowing commitments or revolving consignment commitments or a combination thereof with respect thereto in the case of revolving borrowingsthereto) or (ii) to the acquisition of Capital Stock of a controlling interest in person that is or becomes as a Permitted Businessresult of such acquisition a Wholly-Owned Subsidiary, the making of a capital expenditure expenditures or the acquisition of other long-term assets, assets (other than Investments) that are or promptly after such acquisition will be used in each case, used the business engaged in by the Company or useful any of its Subsidiaries on the date hereof or in a Permitted Businessbusiness reasonably related thereto. Pending the final application of any such Net Proceeds, the Company may temporarily reduce Senior Revolving Debt or otherwise invest make an Investment of such Net Proceeds in any manner that is not prohibited by the terms of this Indenture. Any Net Proceeds from Asset Sales that are not applied or invested as provided in the first sentence of this paragraph shall Section 4.10(b) will be deemed to constitute "Excess Proceeds." When ". Within 45 days after the first day of a calendar month in which the aggregate amount of Excess Proceeds exceeds $10.0 million, the Company shall be required to make an offer to all Holders of Notes and all holders of other pari passu Indebtedness containing provisions similar to those set forth in this Indenture with respect to offers to purchase or redeem such other pari passu Indebtedness with the proceeds of sales of assets (an "Asset Sale Offer") in accordance with the provisions of 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 such Excess Proceeds Proceeds, at an offer price in cash in an amount equal to 100% of the principal amount thereof, thereof plus accrued and unpaid interest and Liquidated Damagesthereon, if any, thereon to the date of purchase, in accordance with the procedures set forth in this Indenture and in such other pari passu Indebtedness. To the extent that the aggregate amount of Notes and such other pari passu Indebtedness tendered pursuant to an Asset Sale Offer any such offer is less than the remaining Excess Proceeds, the Company or any of its Subsidiaries may use any remaining Excess Proceeds for general corporate purposes or otherwise make an Investment of such remaining amounts in any purpose manner that is not otherwise prohibited by this Indenture. If the aggregate principal amount of Notes and such other pari passu Indebtedness surrendered by Holders (or holders) thereof exceeds the amount of Excess Proceeds, the Trustee shall select the Notes and such other pari passu Indebtedness to be purchased on a pro rata basis. Upon completion of an Asset Sale Offer, the amount of Excess Proceeds shall be reset at zero.
Appears in 1 contract
Asset Sales. (a) The Company shall not, and shall not permit any of its Restricted Subsidiaries to, to consummate an Asset Sale unless Sale, unless:
(i1) the Company or such Restricted Subsidiary, as the case may be, receives consideration at the time of such Asset Sale at least equal to the fair market value (evidenced by a resolution of the Board of Directors set forth in an Officers' Certificate delivered to the Trustee) of the assets or Equity Interests issued or sold or otherwise disposed of; and
(2) except in the case of and (ii) a Permitted Asset Swap, 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 or Cash Equivalents; provided that the amount following shall be deemed to be cash for purposes of this provision and for no other purpose:
(aA) any liabilities (as reflected in the Company’s or such Restricted Subsidiary’s most recent balance sheet or in the footnotes thereto or, if incurred or increased subsequent to the date of such balance sheet, such liabilities that would have been shown on the Company's ’s or such Restricted Subsidiary's most recent ’s balance sheet or in the footnotes thereto if such incurrence or increase had taken place on the date of such balance sheet, as determined by the Company) of the Company or such Restricted Subsidiary (other than contingent liabilities and liabilities that are by their terms subordinated to the Notes or any guarantee thereofNotes) that are assumed by the transferee of any such assets pursuant to a customary novation written agreement that which releases or indemnifies the Company or such Restricted Subsidiary from further liability, such liabilities;
(bB) any securities, notes or other similar obligations received by the Company or such Restricted Subsidiary from such transferee that are immediately converted by the Company or such Restricted Subsidiary into cash (to the extent of the cash received) and (c) escrowed cash that within 180 days following the Company reasonably believes will be released from escrow within 365 days from the date of consummation closing of such Asset Sale; and
(C) any Designated Non-cash Consideration received by the Company or such Restricted Subsidiary in such Asset Sale having an aggregate fair market value, taken together with all other Designated Non-cash Consideration received pursuant to this clause (C) that is at that time outstanding, not to exceed the greater of (i) $30.0 million and (ii) 3.25% of Total Assets at the time of the receipt of such Designated Non-cash Consideration, with the fair market value of each item of Designated Non-cash Consideration being measured at the time received and without giving effect to subsequent changes in each case shall be deemed value; and
(3) to be cash for purposes of this provision. Notwithstanding the immediately preceding paragraph, extent that any assets received by the Company and its Restricted Subsidiaries will be permitted to consummate an Asset Sale without complying with such paragraph if (i) the Company or the applicable Restricted Subsidiary, as the case may be, receives consideration at the time of in such Asset Sale at least equal to the fair market value of the assets constitute securities or other property sold, issued or otherwise disposed of (as evidenced by a resolution of the Company's Board of Directors set forth in an Officers' Certificate delivered to the Trustee) and (ii) at least 75% of the consideration for such Asset Sale constitutes a controlling interest in a Permitted Business, long-term assets may be used or useful in a Permitted Business and/or cash or Cash Equivalents; provided that any cash or Cash Equivalents received by Similar Business, such assets are concurrently with their acquisition added to the Company or any of its Restricted Subsidiaries in connection with any Asset Sale permitted to be consummated under this paragraph shall constitute Net Proceeds Notes Collateral securing the Notes, other than Excluded Assets and subject to the provisions of the next succeeding paragraph. limitations and exclusions described in Section 10.01(b) hereof.
(b) Within 365 450 days of after the receipt of any Net Proceeds from an of any Asset Sale, the Company may apply or such Net ProceedsRestricted Subsidiary, at its option, may apply the Net Proceeds from such Asset Sale,
(i1) to repay Senior Debt under a Credit permanently reduce Indebtedness as follows:
(A) if the assets subject of such Asset Sale constitute Notes Collateral, to permanently reduce the Tranche 2 Sub-Facility (and to correspondingly reduce commitments with respect thereto thereto) and/or to permanently reduce (or offer to reduce, as applicable) Obligations under the Notes and under any other Additional Parity Debt on a pro rata basis; provided that all reductions of (or offers to reduce) Obligations under the Notes shall be made as provided under Section 3.07 hereof or through open-market purchases (to the extent such purchases are at or above 100% of the principal amount thereof plus accrued unpaid interest) or by making an offer (in accordance with the case procedures set forth under Section 4.10(c) hereof for an Asset Sale Offer) to all Holders of revolving borrowingsNotes to purchase their Notes at 100% of the principal amount thereof, plus the amount of accrued but unpaid interest, if any, on the amount of Notes that would otherwise be prepaid;
(B) if the assets subject of such Asset Sale do not constitute Notes Collateral, but constitute collateral for other Senior Indebtedness of the Company or a Subsidiary Guarantor, which Lien is permitted by this Indenture, to permanently reduce Obligations under such other Senior Indebtedness that is secured by a Lien, which Lien is permitted by this Indenture, and to correspondingly reduce commitments with respect thereto;
(C) if the assets subject of such Asset Sale do not constitute Notes Collateral or collateral for any Senior Indebtedness of the Company or a Subsidiary Guarantor, to permanently reduce Obligations under other Senior Indebtedness of the Company or a Subsidiary Guarantor (and to correspondingly reduce commitments with respect thereto), provided that the Company shall equally and ratably reduce (or offer to reduce, as applicable) Obligations under the Notes (and may elect to reduce Additional Parity Debt) on a pro rata basis; provided, further, that all reductions of Obligations under the Notes shall be made as provided under Section 3.07 hereof or through open-market purchases (to the extent such purchases are at or above 100% of the principal amount thereof plus accrued and unpaid interest) or by making an offer (in accordance with the procedures set forth in Section 4.10(c) hereof) to all Holders of Notes to purchase their Notes at 100% of the principal amount thereof, plus the amount of accrued but unpaid interest, if any, on the amount of Notes that would otherwise be prepaid; or
(D) if the assets subject of such Asset Sale are the property or assets of a Restricted Subsidiary that is not a Subsidiary Guarantor, to permanently reduce Indebtedness of (i) a Restricted Subsidiary that is not a Subsidiary Guarantor, other than Indebtedness owed to the Company or any Restricted Subsidiary, or (ii) the Company or a Subsidiary Guarantor,
(2) to make (A) an Investment in any one or more businesses; provided that such Investment in any business is in the form of the acquisition of Capital Stock and results in the Company or any of its Restricted Subsidiaries, as the case may be, owning an amount of the Capital Stock of such business such that it constitutes a controlling interest in a Permitted BusinessRestricted Subsidiary, the making of a (B) capital expenditure expenditures or the acquisition (C) acquisitions of other long-term assets, in each caseof (A), (B) and (C), used or useful in a Permitted Similar Business. Pending ; provided that the final assets (including Capital Stock) acquired with the Net Proceeds of a disposition of Collateral are pledged as Collateral to the extent required under the Collateral Documents; or
(3) to make an Investment in (A) any one or more businesses; provided that such Investment in any business is in the form of the acquisition of Capital Stock and results in the Company or any of its Restricted Subsidiaries, as the case may be, owning an amount of the Capital Stock of such business such that it constitutes a Restricted Subsidiary, (B) properties or (C) acquisitions of other assets that, in each of (A), (B) and (C), replace the businesses, properties and/or assets that are the subject of such Asset Sale; provided that the assets (including Capital Stock) acquired with the Net Proceeds of a disposition of Collateral are pledged as Collateral to the extent required under the Collateral Documents; provided that, in the case of clauses (2) and (3) above, a binding commitment entered into not later than such 450th day shall be treated as a permitted application of any the Net Proceeds from the date of such commitment so long as the Company, or such other Restricted Subsidiary enters into such commitment with the good faith expectation that such Net ProceedsProceeds shall be applied to satisfy such commitment within 180 days of such commitment (an “Acceptable Commitment”) and, in the event any Acceptable Commitment is later cancelled or terminated for any reason before the Net Proceeds are applied in connection therewith, the Company may temporarily reduce Senior Debt or otherwise invest such Restricted Subsidiary enters into another Acceptable Commitment (the “Second Commitment”) within 180 days of such cancellation or termination; provided, further, that (x) if any Second Commitment is later cancelled or terminated for any reason before such Net Proceeds are applied or (y) such Net Proceeds are not actually so invested or paid in any manner that is not prohibited accordance with clause (2) or (3) above by this Indenture. the end of such 180 day period, then such Net Proceeds shall constitute Excess Proceeds.
(c) Any Net Proceeds from the Asset Sales Sale that are not invested or applied or invested as provided and within the time period set forth in the first sentence of this paragraph Section 4.10(b) hereof shall be deemed to constitute "“Excess Proceeds." ” When the aggregate amount of Excess Proceeds exceeds $10.0 25.0 million, the Company shall be required to make an offer to all Holders of the Notes and all (x) in the case of Net Proceeds from an Asset Sale of Notes Collateral, to the holders of any Additional Parity Debt to the extent required by the terms thereof or (y) in the case of any other Net Proceeds, if required by the terms of any Indebtedness that is pari passu Indebtedness containing provisions similar to those set forth in this Indenture with respect to offers to purchase or redeem such other pari passu Indebtedness with the proceeds Notes or any Guarantee (“Pari Passu Indebtedness”), to the holders of sales of assets such Pari Passu Indebtedness (an "“Asset Sale Offer") ”), to purchase the maximum aggregate principal amount of the Notes and such other pari passu Indebtedness Additional Parity Debt or Pari Passu Indebtedness, as the case may be, that, in the case of the Notes, is an integral multiple of $1,000 (but in minimum amounts of $2,000) that may be purchased out of the Excess Proceeds at an offer price price, in the case of the Notes, in cash in an amount equal to 100% of the principal amount thereof, plus accrued and unpaid interest and Liquidated DamagesAdditional Interest, if any, thereon to the date fixed for the closing of purchasesuch offer, and in the case of any Additional Parity Debt or Pari Passu Obligations at the offer price required by the terms thereof but not to exceed 100% of the principal amount thereof, plus accrued and unpaid interest, if any, in accordance with the procedures set forth in this Indenture and in Indenture. The Company shall commence an Asset Sale Offer with respect to Excess Proceeds within ten Business Days after the date that Excess Proceeds exceed $25.0 million by mailing the notice required pursuant to the terms of this Indenture, with a copy to the Trustee. The Company may satisfy the foregoing obligations with respect to any Net Proceeds from an Asset Sale by making an Asset Sale Offer with respect to such other pari passu IndebtednessNet Proceeds prior to the expiration of the relevant 450 days or with respect to Excess Proceeds of $25.0 million or less. To the extent that the aggregate amount of Notes and such other pari passu Indebtedness Additional Parity Debt or Pari Passu Indebtedness, as the case may be, tendered pursuant to an Asset Sale Offer is less than the Excess Proceeds, the Company may use any remaining Excess Proceeds for any purpose not otherwise prohibited by general corporate purposes, subject to other covenants contained in this Indenture. If the aggregate principal amount of Notes and such other pari passu Indebtedness Notes, Additional Parity Debt or Pari Passu Indebtedness, as the case may be, surrendered by Holders such holders thereof exceeds the amount of Excess Proceeds, such Notes, Additional Parity Debt or Pari Passu Indebtedness, as the Trustee shall select the Notes and such other pari passu Indebtedness to case may be, will be purchased on a pro rata basisbasis based on the accreted value or principal amount of such Notes, such Additional Parity Debt or Pari Passu Indebtedness, as the case may be, tendered (and the Trustee will select the tendered Notes of tendering holders on a pro rata basis based on the amount of Notes tendered). Additionally, the Company may, at its option, make an Asset Sale Offer using proceeds from any Asset Sale at any time after consummation or expiration of such Asset Sale. Upon completion consummation or expiration of any Asset Sale Offer, any Net Proceeds not used to purchase Notes in such Asset Sale Offer shall not be deemed Excess Proceeds and the Company may use any Net Proceeds not required to be used for general corporate purposes, subject to other covenants contained in this Indenture; provided that any such remaining Net Proceeds shall to the extent received in respect of Notes Collateral remain subject to the Lien of the Security Documents.
(d) Pending the final application of any Net Proceeds which do not represent the proceeds of Notes Collateral pursuant to this Section 4.10, the holder of such Net Proceeds may apply such Net Proceeds temporarily to reduce Indebtedness outstanding under a revolving credit facility or otherwise invest such Net Proceeds in any manner not prohibited by this Indenture.
(e) The Company shall comply with the requirements of Rule 14e-1 under the Exchange Act and any other securities laws and regulations thereunder to the extent such laws or regulations are applicable in connection with the repurchase of the Notes pursuant to an Asset Sale Offer. To the extent that the provisions of any securities laws or regulations conflict with the provisions of this Indenture, the amount of Excess Proceeds Company shall comply with the applicable securities laws and regulations and shall not be reset at zerodeemed to have breached its obligations described in this Indenture by virtue thereof.
Appears in 1 contract
Asset Sales. The Company shall not, and shall not permit any of its Restricted Subsidiaries to, consummate an Asset Sale unless (i) the Company (or such the Restricted Subsidiary, as the case may be, ) receives consideration at the time of such Asset Sale at least equal to the fair market value as determined in good faith by the Company (evidenced by a resolution of the Board of Directors set forth in an Officers' Certificate delivered to the TrusteeTrustee with respect to any Asset Sale determined to have a value greater than $25.0 million) of the assets or Equity Interests issued or sold or otherwise disposed of and (ii) except in the case of Assets Held for Sale, at least 75% of the consideration therefor received by the Company or such Restricted Subsidiary is in the form of cash cash, Cash Equivalents or Cash EquivalentsMarketable Securities; provided that the amount of following amounts shall be deemed to be cash: (aw) any liabilities (as shown on the Company's or such Restricted Subsidiary's most recent balance sheet) ), of the Company or such any Restricted Subsidiary (other than contingent liabilities and liabilities that are by their terms subordinated to the Notes or any guarantee thereof) that are assumed by the transferee of any such assets pursuant to a customary novation agreement that releases the Company or such Restricted Subsidiary from further liability, (bx) any securities, notes or other obligations received by the Company or any such Restricted Subsidiary from such transferee that are immediately contemporaneously (subject to ordinary settlement periods) converted by the Company or such Restricted Subsidiary into cash (to the extent of the cash received), (y) and (c) escrowed cash that the Company reasonably believes will be released from escrow within 365 days from the date of consummation of such Asset Sale, in each case shall be deemed to be cash for purposes of this provision. Notwithstanding the immediately preceding paragraph, the Company and its Restricted Subsidiaries will be permitted to consummate an Asset Sale without complying with such paragraph if (i) the Company or the applicable Restricted Subsidiary, as the case may be, receives consideration at the time of such Asset Sale at least equal to the fair market value of the assets or other property sold, issued or otherwise disposed of (as evidenced by a resolution of the Company's Board of Directors set forth in an Officers' Certificate delivered to the Trustee) and (ii) at least 75% of the consideration for such Asset Sale constitutes a controlling interest in a Permitted Business, long-term assets used or useful in a Permitted Business and/or cash or Cash Equivalents; provided that any cash or Cash Equivalents Designated Noncash Consideration received by the Company or any of its Restricted Subsidiaries in connection such Asset Sale; provided that the aggregate fair market value (as determined above) of such Designated Noncash Consideration, taken together with any Asset Sale permitted the fair market value at the time of receipt of all other Designated Noncash Consideration received pursuant to be consummated under this paragraph shall constitute clause (y) less the amount of Net Proceeds subject to previously realized in cash from prior Designated Noncash Consideration is less than 5% of Total Assets at the provisions of the next succeeding paragraph. Within 365 days time of the receipt of such Designated Noncash Consideration (with the fair market value of each item of Designated Noncash Consideration being measured at the time received and without giving effect to subsequent changes in value) and (z) Additional Assets received in an exchange of assets transaction. Within 360 days after the receipt of any cash Net Proceeds from an Asset Sale, the Company or such Restricted Subsidiary, at its option, may apply such cash Net Proceeds, at its option, (i) to repay Senior Debt under a Credit Facility (and to correspondingly reduce commitments with respect thereto in the case of revolving borrowings) or an Asset Sale of Assets Held for Sale, toward the repayment of the Bridge Facilities and (ii) in the case of all other Asset Sales, (a) to repay Indebtedness of the Company or any Restricted Subsidiary that is not subordinated in right of payment to the Notes or to repay debt under one or more Credit Facilities and, if such debt is revolving debt, to effect a corresponding commitment reduction thereunder, (b) to the acquisition of all or a controlling interest in portion of the assets of, or a majority of the Voting Stock of, another Permitted Business, the making of a capital expenditure or the acquisition of other long-term assets, in each case, assets or Investments that are used or useful in a Permitted Business. Pending the final application of any such Net Proceeds, the Company may temporarily reduce Senior Debt Business or otherwise invest such Net Proceeds (c) to an Investment in any manner that is not prohibited by this IndentureAdditional Assets. Any cash Net Proceeds from Asset Sales that are not applied or invested as provided in the first sentence of this paragraph shall be deemed to constitute "Excess Proceeds." When the aggregate amount of Excess Proceeds exceeds $10.0 15.0 million, the Company shall will be required to make an offer to all Holders of Notes and all holders of other Indebtedness that ranks pari passu Indebtedness with the Notes containing provisions similar to those set forth in this Indenture with respect to offers to purchase or redeem such other pari passu Indebtedness with the proceeds of sales of assets (an "Asset Sale Offer") to purchase the maximum principal amount of Notes and such other pari passu Indebtedness that may be purchased out of the Excess Proceeds Proceeds, at an offer price in cash in an amount equal to 100% of the principal amount thereof, thereof plus accrued and unpaid interest and Liquidated DamagesDamages thereon, if any, thereon to the date of purchase, in accordance with the procedures set forth in this Indenture and in such other pari passu Indebtedness. To the extent that the aggregate amount any Excess Proceeds remain after consummation of Notes and such other pari passu Indebtedness tendered pursuant to an Asset Sale Offer is less than the Excess ProceedsOffer, the Company may use any remaining such Excess Proceeds for any purpose not otherwise prohibited by this Indenture. If the aggregate principal amount of Notes and such other pari passu Indebtedness tendered into such Asset Sale Offer surrendered by Holders thereof exceeds the amount of Excess Proceeds, the Trustee shall select the Notes and such other pari passu Indebtedness to be purchased on a pro rata basis. Upon completion of an Asset Sale Offersuch offer to purchase, the amount of Excess Proceeds shall be reset at zero.
Appears in 1 contract
Sources: Indenture (Appalachian Realty Co)
Asset Sales. The Company shall not, and shall not permit any of its Restricted Subsidiaries to:
(1) sell, consummate an Asset lease, convey or otherwise dispose of any assets (including by way of a Sale unless and Leaseback Transaction, but excluding a Qualifying Sale and Leaseback Transaction) other than sales of inventory in the ordinary course of business (provided that the sale, lease, conveyance or other disposition of all or substantially all of the assets of the Company will be governed by the provisions of Section 4.18 of the Indenture and/or the provisions of Section 5.1 of the Indenture and not by the provisions of this Section 4.17); or
(2) issue or sell Equity Interests of any of its Restricted Subsidiaries that in the case of either clause (1) or (2) above, whether in a single transaction or a series of related transactions:
(i) have a fair market value in excess of $2.0 million; or
(ii) result in Net Proceeds in excess of $2.0 million (each of the foregoing, an "ASSET SALE"), unless (x) the Company (or such the Restricted Subsidiary, as the case may be, ) receives consideration at the time of such Asset Sale at least equal to the fair market value (evidenced by an Officers' Certificate delivered to the Trustee, and for Asset Sales having a fair market value or resulting in Net Proceeds in excess of $10.0 million, 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 (iiy) at least 75% of the consideration therefor received by the Company or such Restricted Subsidiary is in the form of cash or Cash Equivalentslike-kind assets (in each case as determined in good faith by the Company, evidenced by a resolution of the Board of Directors and certified by an Officers' Certificate delivered to the Trustee); provided provided, however, that the amount of of:
(aA) any liabilities (as shown on the Company's or such Restricted Subsidiary's most recent balance sheetsheet or in the notes thereto) of the Company or such Restricted Subsidiary (other than contingent liabilities and liabilities that are by their terms subordinated to the Notes or any guarantee thereofSubsidiary Guarantee) that are assumed by the transferee of any such assets pursuant to a customary novation agreement that releases the Company or such Restricted Subsidiary from further liability, assets; and
(bB) any securities, notes or other obligations received by the Company or such Restricted Subsidiary from such transferee that are immediately converted by the Company or such Restricted Subsidiary into cash (to the extent of the cash received) and (c) escrowed cash that the Company reasonably believes will be released from escrow within 365 days from the date of consummation of such Asset Saleor Cash Equivalents, in each case shall be deemed to be cash for purposes of this provision; and provided, further, that the 75% limitation referred to in the foregoing clause (ii) (y) shall not apply to any Asset Sale in which the cash portion of the consideration received therefrom is equal to or greater than what the after-tax proceeds would have been had such Asset Sale complied with the aforementioned 75% limitation. Notwithstanding A transfer of assets or issuance of Equity Interests by the immediately preceding paragraphCompany to a Wholly Owned Restricted Subsidiary or by a Wholly Owned Restricted Subsidiary to the Company or to another Wholly Owned Restricted Subsidiary will not be deemed to be an Asset Sale. Within 360 days of any Asset Sale, the Company and may, at its Restricted Subsidiaries will be permitted option, apply an amount equal to consummate an Asset Sale without complying with such paragraph if (i) the Company or the applicable Restricted Subsidiary, as the case may be, receives consideration at the time of Net Proceeds from such Asset Sale at least equal either:
(1) to the fair market value of the assets permanently reduce Senior Debt; or
(2) to an investment in a Restricted Subsidiary or in another business or capital expenditure or other property sold, issued or otherwise disposed of (as evidenced by a resolution of the Company's Board of Directors set forth in an Officers' Certificate delivered to the Trustee) and (ii) at least 75% of the consideration for such Asset Sale constitutes a controlling interest in a Permitted Business, long-term assets used or useful term/tangible assets, in a Permitted Business and/or cash or Cash Equivalents; provided that any cash or Cash Equivalents received by each case, in the same line of business as the Company or any of its Restricted Subsidiaries was engaged in connection with any Asset Sale permitted to be consummated under this paragraph shall constitute Net Proceeds subject to on the provisions date of the next succeeding paragraph. Within 365 days of the receipt of any Net Proceeds from an Asset Sale, the Company may apply such Net Proceeds, at its option, (i) to repay Senior Debt under a Credit Facility (and to correspondingly reduce commitments with respect thereto First Supplemental Indenture or in the case of revolving borrowings) businesses similar or (ii) to the acquisition of a controlling interest in a Permitted Business, the making of a capital expenditure or the acquisition of other long-term assets, in each case, used or useful in a Permitted Businessreasonably related thereto. Pending the final application of any such Net Proceeds, the Company may temporarily reduce Senior Bank Debt or otherwise invest such Net Proceeds in any manner that is not prohibited by this the Indenture. Any Net Proceeds from such Asset Sales Sale that are not applied or invested as provided in the first sentence of this paragraph shall will be deemed to constitute "Excess ProceedsEXCESS PROCEEDS." When the aggregate amount of Excess Proceeds exceeds $10.0 million, the Company shall be required to make an offer to all Holders of Notes and the Notes, all holders of other pari passu the 9 1/8% Notes, the 8 1/4% Notes, the 8 1/8% Notes, the 8 3/4% Notes and the 8 5/8% Notes and the holders of any future Indebtedness containing provisions similar to those set forth in this Indenture with respect to offers to purchase or redeem such other pari passu Indebtedness ranking PARI PASSU with the proceeds of sales of assets Notes, which Indebtedness contains similar provisions requiring the Company to repurchase such Indebtedness (an "Asset Sale OfferASSET SALE OFFER") ), to purchase the maximum principal amount of Notes and such other pari passu Indebtedness that may be purchased out of the Excess Proceeds Proceeds, at an offer price in cash in an amount equal to 100% of the principal amount thereof, thereof plus accrued and unpaid interest and Liquidated Damagesinterest, if any, thereon to the date of purchase, in accordance with the procedures set forth in this Indenture and in such other pari passu Indebtednessthe Indenture. To the extent that the aggregate amount of Notes and such other pari passu PARI PASSU Indebtedness (including the 9 1/8% Notes, the 8 1/4% Notes, the 8 1/8% Notes, the 8 3/4% Notes and the 8 5/8% Notes) tendered pursuant to an Asset Sale Offer is less than the Excess Proceeds, the Company may use any remaining Excess Proceeds for any purpose not otherwise prohibited by this Indenturegeneral corporate purposes. If the aggregate principal amount of Notes and such other pari passu Indebtedness surrendered by Holders thereof exceeds the amount of Excess Proceeds, the Trustee shall select the Notes and such other pari passu Indebtedness to be purchased on a pro rata basis. Upon completion of an Asset Sale Offersuch offer to purchase, the amount of Excess Proceeds shall be reset at zero. The Company shall comply with the requirements of Rule 14e-1 under the Exchange Act and any other securities laws and regulations thereunder to the extent those laws and regulations are applicable in connection with each repurchase of Notes pursuant to an Asset Sale Offer. To the extent that the provisions of any securities laws or regulations conflict with the provisions of this Section 4.17, the Company shall comply with the applicable securities laws and regulations and shall not be deemed to have breached its obligations under the Asset Sale provisions of the Indenture by virtue of such conflict. An Asset Sale Offer shall be made pursuant to the provisions of Section 3.9 hereof. No later than the date which is five Business Days after the date on which the aggregate amount of Excess Proceeds exceeds $10.0 million, the Company shall notify the Trustee of such Asset Sale Offer and provide the Trustee with an Officers' Certificate setting forth the calculations used in determining the amount of Net Proceeds to be applied to the purchase of Notes. The Company shall commence or cause to be commenced the Asset Sale Offer on a date no later than 15 Business Days after such notice (the "COMMENCEMENT DATE").
(k) CHANGE OF CONTROL OFFER.
Appears in 1 contract
Sources: First Supplemental Indenture (Iron Mountain Inc/Pa)
Asset Sales. The Neither the Company shall not, and shall not permit nor any of its Restricted Subsidiaries toshall engage in any Asset Sale, consummate an Asset Sale unless unless:
(i) the Company or such Restricted Subsidiary, as the case may be, receives consideration at the time of such Asset Sale at least equal to the fair market value Fair Market Value (evidenced by a resolution of the Board of Directors set forth in an Officers' Certificate delivered to the Trustee) of the assets or Equity Interests issued or sold or otherwise disposed of and of; and
(ii) at least 7520% of the consideration therefor received by the Company or such Restricted Subsidiary is in the form of cash Cash or Cash Equivalents; provided provided, however, that if the Fair Market Value of the assets sold or otherwise disposed of exceeds $10,000,000, at least 75% of the consideration therefor received by the Company or such Restricted Subsidiaries is in the form of Cash or Cash Equivalents; provided, further, however, that the amount of (a) any liabilities (as shown on the Company's or such Restricted Subsidiary's most recent balance sheetsheet or in the notes thereto) of the Company or such Restricted Subsidiary (other than contingent liabilities and liabilities that are by their terms subordinated in right of payment to the Notes or any guarantee thereofNotes) that are assumed by the transferee of any such assets pursuant to a customary novation agreement that releases the Company or such Restricted Subsidiary from further liability, and (b) any securities, notes or other obligations received by the Company or such Restricted Subsidiary from such transferee that are immediately converted within 60 days by the Company or such Restricted Subsidiary into cash (to the extent of the cash so received) and (c) escrowed cash that the Company reasonably believes will be released from escrow within 365 days from the date of consummation of such Asset Sale), in each case shall be deemed to be cash for purposes of this provision. Notwithstanding the immediately preceding paragraph, the Company and its Restricted Subsidiaries will be permitted to consummate an Asset Sale without complying with such paragraph if (i) the Company or the applicable Restricted Subsidiary, as the case may be, receives consideration at the time of such Asset Sale at least equal to the fair market value of the assets or other property sold, issued or otherwise disposed of (as evidenced by a resolution of the Company's Board of Directors set forth in an Officers' Certificate delivered to the Trustee) and (ii) at least 75% of the consideration for such Asset Sale constitutes a controlling interest in a Permitted Business, long-term assets used or useful in a Permitted Business and/or cash or Cash Equivalents; provided that any cash or Cash Equivalents received by the Company or any of its Restricted Subsidiaries in connection with any Asset Sale permitted to be consummated under this paragraph shall constitute Net Proceeds subject to the provisions of the next succeeding paragraph. Within 365 180 days of after the receipt of any the Net Proceeds from an Asset Sale, the Company may shall apply the Net Proceeds from such Net ProceedsAsset Sale first, at its option, (i) to repay Senior Debt under a Credit Facility (or reduce the Term Loan, and to correspondingly the extent such Indebtedness is paid in full, to permanently repay and reduce commitments the commitment with respect thereto in the case of revolving borrowings) or (ii) to the acquisition of a controlling interest in a Permitted Business, the making of a capital expenditure or the acquisition of other long-term assets, in each case, used or useful in a Permitted BusinessRevolver. Pending the final application of any such Net Proceeds, the Company may temporarily reduce Senior Debt or otherwise invest such Net Proceeds in any manner that is not prohibited by this Indenture. Any Net Proceeds from the Asset Sales Sale that are not applied or invested as provided in the first sentence of this paragraph shall will be deemed to constitute "Excess Proceeds." When the aggregate cumulative amount of Excess Proceeds exceeds $10.0 million5,000,000, the Company shall be required to make an offer to all Holders of Notes and all holders of other pari passu Indebtedness containing provisions similar to those set forth in this Indenture with respect to offers to purchase or redeem such other pari passu Indebtedness with the proceeds of sales of assets (an "Asset Sale Offer") to purchase the maximum principal amount of Notes and such other pari passu Indebtedness that may be purchased out of with the Excess Proceeds Proceeds, at an offer price in cash in an amount equal to 100% of the principal amount thereof, thereof plus accrued and unpaid interest and Liquidated Damages, if any, thereon to the date of purchase, in accordance with the procedures set forth in this Indenture and in such other pari passu IndebtednessSection 4.20 (an "Asset Sale Offer"). To the extent that the aggregate principal amount of Notes and such other pari passu Indebtedness tendered pursuant to an Asset Sale Offer is less than the Excess Proceeds, the Company may use such deficiency (i) for general corporate purposes in any remaining Excess Proceeds for any purpose manner not otherwise prohibited by this IndentureIndenture and (ii) within 60 days of the completion of an Asset Sale Offer, to purchase, retire, redeem or otherwise acquire subordinated Obligations permitted to be incurred pursuant to this Indenture (including the Senior Subordinated Notes) and only to the extent necessary to comply with the covenants and other provisions of such subordinated Obligations. If the aggregate principal amount of Notes and such other pari passu Indebtedness surrendered by Holders thereof exceeds the amount of Excess Proceeds, the Trustee shall select the Notes and such other pari passu Indebtedness to be purchased on a pro rata basis. Upon completion of an Asset Sale Offersuch offer to purchase, the amount of Excess Proceeds shall be reset at zero. In the event that the Company shall be required to commence an Asset Sale Offer to all Holders to purchase Notes pursuant to this Section 4.20, it shall follow the procedures specified below. The Asset Sale Offer shall be commenced within 30 days following the first date on which the Company has cumulative Excess Proceeds of at least $5,000,000 and remain open for a period of at least 30 and not more than 40 days, except to the extent that a longer period is required by applicable law (the "Repurchase Offer Period"). No later than five Business Days after the termination of the Offer Period (the "Repurchase Date"), the Company shall purchase the principal amount of Notes required to be purchased pursuant to this Section 4.20 hereof (the "Repurchase Price") or, if Notes having an aggregate principal amount less than the amount of Excess Proceeds subject to such Asset Sale Offer have been tendered, all Notes tendered in response to the Asset Sale Offer. Payment for any Notes so purchased shall be made in the same manner as interest payments are made. If the Repurchase Date is on or after an interest record date and on or before the related interest payment date, any accrued and unpaid interest shall be paid to the Person in whose name a Note is registered at the close of business on such record date, and no additional interest shall be payable to Holders who tender Notes pursuant to the Asset Sale Offer. Upon the commencement of an Asset Sale Offer, the Company shall send, by first class mail, a notice to the Trustee or to 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 4.20 and the length of time the Asset Sale Offer shall remain open;
(b) the Asset Sale Offer, the Repurchase Price and the Repurchase Date;
(c) that any Note not tendered or accepted for payment shall continue to accrue interest;
(d) that, unless the Company defaults in making such payment, any Note accepted for payment pursuant to the Asset Sale Offer shall cease to accrue interest after the Repurchase Date;
(e) that Holders electing to have a Note purchased pursuant to a Asset Sale Offer may only elect to have all of such Note purchased and may not elect to have only a portion of such Note purchased;
(f) that Holders electing to have a Note purchased pursuant to any Asset Sale Offer shall be required to surrender the Note, with the form entitled "Option of Holder to Elect Purchase" on the reverse of the Note completed, or transfer by book-entry transfer, to the Company, a depositary, if appointed by the Company, or a Paying Agent at the address specified in the notice at least three days before the Asset Sale Purchase Date;
(g) that Holders shall be entitled to withdraw their election if the Company, the Depositary or the Paying Agent, as the case may be, receives, not later than the expiration of the Repurchase Offer Period, a telegram, telex, facsimile transmission or letter setting forth the name of the Holder, the principal amount of the Note the Holder delivered for purchase and a statement that such Holder is withdrawing his election to have such Note purchased;
(h) that, if the aggregate principal amount of Notes surrendered by Holders exceeds the Repurchase Price, the Trustee shall select the Notes to be purchased on a pro rata basis (with such adjustments as may be deemed appropriate by the Trustee so that only Notes in denominations of $1,000, or integral multiples thereof, shall be purchased); and
(i) that Holders whose Notes were purchased only in part shall be issued new Notes equal in principal amount to the unpurchased portion of the Notes surrendered (or transferred by book-entry transfer). 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 Repurchase Date) mail or deliver to each tendering Holder an amount equal to the purchase price of the Notes tendered by such Holder and accepted by the Company for purchase, and the Company shall promptly issue a new Note, and the Trustee, upon written order 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 the Note surrendered. Any Note not so accepted shall be promptly mailed or delivered by the Company to the Holder thereof. The Company shall publicly announce the results of the Asset Sale Offer on the Repurchase Date. The Company shall comply with the requirements of Rule 14e-1 under the Exchange Act and any other securities laws, rules and regulations thereunder to the extent such laws, rules and regulations are applicable in connection with the repurchase of Notes pursuant to Asset Sale Offer.
Appears in 1 contract
Sources: Indenture (Neenah Foundry Co)
Asset Sales. The Neither the Company shall not, and shall not permit nor any of its Restricted Subsidiaries toshall engage in any Asset Sale, consummate an Asset Sale unless unless:
(i) the Company or such Restricted Subsidiary, as the case may be, receives consideration at the time of such Asset Sale at least equal to the fair market value Fair Market Value (evidenced by a resolution of the Board of Directors set forth in an Officers' Certificate delivered to the Trustee) of the assets or Equity Interests issued or sold or otherwise disposed of and of; and
(ii) at least 7520% of the consideration therefor received by the Company or such Restricted Subsidiary is in the form of cash Cash or Cash Equivalents; provided provided, however, that if the Fair Market Value of the assets sold or otherwise disposed of exceeds $10,000,000, at least 80% of the consideration therefor received by the Company or such Restricted Subsidiaries is in the form of Cash or Cash Equivalents; provided, further, however, that the amount of (a) any liabilities (as shown on the Company's or such Restricted Subsidiary's most recent balance sheetsheet or in the notes thereto) of the Company or such Restricted Subsidiary (other than contingent liabilities and liabilities that are by their terms subordinated in right of payment to the Notes or any guarantee thereofNotes) that are assumed by the transferee of any such assets pursuant to a customary novation agreement that releases the Company or such Restricted Subsidiary from further liability, and (b) any securities, notes or other obligations received by the Company or such Restricted Subsidiary from such transferee that are immediately converted within 60 days by the Company or such Restricted Subsidiary into cash (to the extent of the cash so received) and (c) escrowed cash that the Company reasonably believes will be released from escrow within 365 days from the date of consummation of such Asset Sale), in each case shall be deemed to be cash for purposes of this provision. Notwithstanding the immediately preceding paragraph, the Company and its Restricted Subsidiaries will be permitted to consummate an Asset Sale without complying with such paragraph if (i) the Company or the applicable Restricted Subsidiary, as the case may be, receives consideration at the time of such Asset Sale at least equal to the fair market value of the assets or other property sold, issued or otherwise disposed of (as evidenced by a resolution of the Company's Board of Directors set forth in an Officers' Certificate delivered to the Trustee) and (ii) at least 75% of the consideration for such Asset Sale constitutes a controlling interest in a Permitted Business, long-term assets used or useful in a Permitted Business and/or cash or Cash Equivalents; provided that any cash or Cash Equivalents received by the Company or any of its Restricted Subsidiaries in connection with any Asset Sale permitted to be consummated under this paragraph shall constitute Net Proceeds subject to the provisions of the next succeeding paragraph. Within 365 180 days of after the receipt of any the Net Proceeds from an Asset Sale, the Company may shall apply the Net Proceeds from such Net ProceedsAsset Sale, at its optionto permanently repay or reduce the Term Loan, (i) to repay Senior Debt under a Credit Facility (and to correspondingly the extent such Indebtedness is paid in full, to permanently repay or reduce commitments with respect thereto all other Senior Indebtedness, including in the case of revolving borrowings) or (ii) to the acquisition of a controlling interest in a Permitted BusinessRevolver, permanently reduce the making of a capital expenditure or the acquisition of other long-term assets, in each case, used or useful in a Permitted Businesscommitment thereunder. Pending the final application of any such Net Proceeds, the Company may temporarily reduce Senior Debt or otherwise invest such Net Proceeds in any manner that is not prohibited by this Indenture. Any Net Proceeds from the Asset Sales Sale that are not applied or invested as provided in the first sentence of this paragraph shall will be deemed to constitute "Excess Proceeds." When the aggregate cumulative amount of Excess Proceeds exceeds $10.0 million[5,000,000], the Company shall be required to make an offer to all Holders of Notes and all holders of other pari passu Indebtedness containing provisions similar to those set forth in this Indenture with respect to offers to purchase or redeem such other pari passu Indebtedness with the proceeds of sales of assets (an "Asset Sale Offer") to purchase the maximum principal amount of Notes and such other pari passu Indebtedness that may be purchased out of with the Excess Proceeds Proceeds, at an offer price in cash in an amount equal to 100% of the principal amount thereof, thereof plus accrued and unpaid interest and Liquidated Damages, if any, thereon to the date of purchase, in accordance with the procedures set forth in this Indenture and in such other pari passu IndebtednessSection 4.20 (an "Asset Sale Offer"). To the extent that the aggregate principal amount of Notes and such other pari passu Indebtedness tendered pursuant to an Asset Sale Offer is less than the Excess Proceeds, the Company may use such deficiency for general corporate purposes in any remaining Excess Proceeds for any purpose not otherwise prohibited manner provided by this Indenture. If the aggregate principal amount of Notes and such other pari passu Indebtedness surrendered by Holders thereof exceeds the amount of Excess Proceeds, the Trustee shall select the Notes and such other pari passu Indebtedness to be purchased on a pro rata basis. Upon completion of an Asset Sale Offersuch offer to purchase, the amount of Excess Proceeds shall be reset at zero. In the event that the Company shall be required to commence an Asset Sale Offer to all Holders to purchase Notes pursuant to this Section 4.20, it shall follow the procedures specified below. The Asset Sale Offer shall be commenced within 30 days following the first date on which the Company has cumulative Excess Proceeds of at least $[5,000,000] and remain open for a period of at least 30 and not more than 40 days, except to the extent that a longer period is required by applicable law (the "Repurchase Offer Period"). No later than five Business Days after the termination of the Offer Period (the "Repurchase Date"), the Company shall purchase the principal amount of Notes required to be purchased pursuant to this Section 4.20 hereof (the "Repurchase Price") or, if Notes having an aggregate principal amount less than the amount of Excess Proceeds subject to such Asset Sale Offer have been tendered, all Notes tendered in response to the Asset Sale Offer. Payment for any Notes so purchased shall be made in the same manner as interest payments are made. If the Repurchase Date is on or after an interest record date and on or before the related interest payment date, any accrued and unpaid interest shall be paid to the Person in whose name a Note is registered at the close of business on such record date, and no additional interest shall be payable to Holders who tender Notes pursuant to the Asset Sale Offer. Upon the commencement of an Asset Sale Offer, the Company shall send, by first class mail, a notice to the Trustee or to 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 4.20 and the length of time the Asset Sale Offer shall remain open;
(b) the Asset Sale Offer, the Repurchase Price and the Repurchase Date;
(c) that any Note not tendered or accepted for payment shall continue to accrue interest;
(d) that, unless the Company defaults in making such payment, any Note accepted for payment pursuant to the Asset Sale Offer shall cease to accrue interest after the Repurchase Date;
(e) that Holders electing to have a Note purchased pursuant to a Asset Sale Offer may only elect to have all of such Note purchased and may not elect to have only a portion of such Note purchased;
(f) that Holders electing to have a Note purchased pursuant to any Asset Sale Offer shall be required to surrender the Note, with the form entitled "Option of Holder to Elect Purchase" on the reverse of the Note completed, or transfer by book-entry transfer, to the Company, a depositary, if appointed by the Company, or a Paying Agent at the address specified in the notice at least three days before the Asset Sale Purchase Date;
(g) that Holders shall be entitled to withdraw their election if the Company, the Depositary or the Paying Agent, as the case may be, receives, not later than the expiration of the Repurchase Offer Period, a telegram, telex, facsimile transmission or letter setting forth the name of the Holder, the principal amount of the Note the Holder delivered for purchase and a statement that such Holder is withdrawing his election to have such Note purchased;
(h) that, if the aggregate principal amount of Notes surrendered by Holders exceeds the Repurchase Price, the Trustee shall select the Notes to be purchased on a pro rata basis (with such adjustments as may be deemed appropriate by the Trustee so that only Notes in denominations of $1,000, or integral multiples thereof, shall be purchased); and
(i) that Holders whose Notes were purchased only in part shall be issued new Notes equal in principal amount to the unpurchased portion of the Notes surrendered (or transferred by book-entry transfer). 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 Repurchase Date) mail or deliver to each tendering Holder an amount equal to the purchase price of the Notes tendered by such Holder and accepted by the Company for purchase, and the Company shall promptly issue a new Note, and the Trustee, upon written order 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 the Note surrendered. Any Note not so accepted shall be promptly mailed or delivered by the Company to the Holder thereof. The Company shall publicly announce the results of the Asset Sale Offer on the Repurchase Date. The Company shall comply with the requirements of Rule 14e-1 under the Exchange Act and any other securities laws, rules and regulations thereunder to the extent such laws, rules and regulations are applicable in connection with the repurchase of Notes pursuant to Asset Sale Offer.
Appears in 1 contract
Sources: Indenture (Neenah Foundry Co)
Asset Sales. The Company shall not, and shall not permit any of its Restricted Subsidiaries to, consummate an Asset Sale unless (i) the Company (or such the Restricted Subsidiary, as the case may be, ) receives consideration at the time of such Asset Sale at least equal to the fair market value (evidenced by a resolution of the Board of Directors set forth in an Officers' Certificate delivered to the Trustee) of the assets or Equity Interests issued or sold or otherwise disposed of and (ii) except in the case of a Tower Asset Exchange, at least 75% of the consideration therefor received by the Company or such Restricted Subsidiary is in the form of cash or Cash Equivalents; provided that the amount of (ax) any liabilities (as shown on the Company's or such Restricted Subsidiary's most recent balance sheet) ), of the Company or such any Restricted Subsidiary (other than contingent liabilities and liabilities that are by their terms subordinated to the Notes or any guarantee thereof) that are assumed by the transferee of any such assets pursuant to a customary novation agreement that releases the Company or such Restricted Subsidiary from further liability, liability and (by) any securities, notes or other obligations received by the Company or any such Restricted Subsidiary from such transferee that are immediately converted by the Company or such Restricted Subsidiary into cash within 20 days of the applicable Asset Sale (to the extent of the cash received) and (c) escrowed cash that the Company reasonably believes will be released from escrow within 365 days from the date of consummation of such Asset Sale), in each case shall be deemed to be cash for purposes of this provision. Notwithstanding the immediately preceding paragraph, the Company and its Restricted Subsidiaries will be permitted to consummate an Asset Sale without complying with such paragraph if (i) the Company or the applicable Restricted Subsidiary, as the case may be, receives consideration at the time of such Asset Sale at least equal to the fair market value of the assets or other property sold, issued or otherwise disposed of (as evidenced by a resolution of the Company's Board of Directors set forth in an Officers' Certificate delivered to the Trustee) and (ii) at least 75% of the consideration for such Asset Sale constitutes a controlling interest in a Permitted Business, long-term assets used or useful in a Permitted Business and/or cash or Cash Equivalents; provided that any cash or Cash Equivalents received by the Company or any of its Restricted Subsidiaries in connection with any Asset Sale permitted to be consummated under this paragraph shall constitute Net Proceeds subject to the provisions of the next succeeding paragraph. Within 365 360 days of after the receipt of any Net Proceeds from an Asset Sale, the Company or the applicable Restricted Subsidiary may apply such Net Proceeds, at its option, Proceeds to: (ia) to repay Senior Debt reduce Indebtedness under a Credit Facility Facility; (and to correspondingly b) reduce commitments with respect thereto in other Indebtedness of any of the case of revolving borrowingsCompany's Restricted Subsidiaries; (c) or (ii) to the acquisition of a controlling interest in all or substantially all the assets of a Permitted Business; (d) the acquisition of Voting Stock of a Permitted Business from a Person that is not a Subsidiary of the Company; provided, that, after giving effect thereto, the Company or its Restricted Subsidiary owns a majority of such Voting Stock; or (e) the making of a capital expenditure or the acquisition of other long-term assets, in each case, assets that are used or useful in a Permitted Business. Pending the final application of any such Net Proceeds, the Company may temporarily reduce Senior Debt revolving credit borrowings or otherwise invest such Net Proceeds in any manner that is not prohibited by this Indenture. Any Net Proceeds from Asset Sales that are not applied or invested as provided in the first sentence of this paragraph shall be deemed to constitute "Excess Proceeds." When the aggregate amount of Excess Proceeds exceeds $10.0 5.0 million, the Company shall be required to make an offer (an "Asset Sale Offer") to all Holders of Notes and all holders of other pari passu senior Indebtedness of the Company containing provisions similar to those set forth in this Indenture with respect to offers to purchase or redeem such other pari passu Indebtedness with the proceeds of sales of assets (an such other senior Indebtedness of the Company, "Asset Sale OfferPari Passu Notes") to purchase the maximum principal amount (or accreted value, as applicable) of Notes and such other pari passu Indebtedness and Pari Passu Notes that may be purchased out of the Excess Proceeds Proceeds, at an offer price in cash in an amount equal to 100% of the principal amount thereof(or accreted value, as applicable) thereof plus accrued and unpaid interest and Liquidated Damages thereon, if any, to the date of purchase (subject to the right of Holders of record on the relevant record date to receive interest and Liquidated Damages, if any, thereon to due on the date of purchaserelevant interest payment date), in accordance with the procedures set forth in this Indenture and in such other pari passu Indebtednessany indenture governing the Pari Passu Notes. To the extent that the aggregate amount any Excess Proceeds remain after consummation of Notes and such other pari passu Indebtedness tendered pursuant to an Asset Sale Offer is less than the Excess ProceedsOffer, the Company may use any remaining such Excess Proceeds for any purpose not otherwise prohibited by this Indenture. If the aggregate principal amount of Notes and Pari Passu Notes tendered into such other pari passu Indebtedness Asset Sale Offer surrendered by Holders thereof exceeds the amount of Excess Proceeds, the Trustee shall select the Notes and such other pari passu Indebtedness Pari Passu Notes to be purchased on a pro rata basis. Upon completion of an Asset Sale Offersuch offer to purchase, the amount of Excess Proceeds shall be reset at zero.
Appears in 1 contract
Asset Sales. The Company shall not, and shall not permit any of its Restricted Subsidiaries to, consummate an Asset Sale or issue Equity Interests in any of its Restricted Subsidiaries or sell Equity Interests in any of its Restricted Subsidiaries, unless (i) the Company (or such the Restricted Subsidiary, as the case may be, ) receives consideration at the time of such Asset Sale at least equal to the fair market value (which, in the case of any Asset Sale involving shares or assets having a fair market value in excess of $2.0 million, shall be evidenced by a resolution of the Board of Directors set forth in an Officers' Certificate delivered to the Trustee) of the assets or Equity Interests issued or sold or otherwise disposed of and (ii) at least 7585% of the consideration therefor received by the Company or such Restricted Subsidiary is in the form of cash or Cash Equivalentscash; provided that PROVIDED THAT the amount of (ax) any liabilities (as shown on the Company's or such Restricted Subsidiary's most recent balance sheet) of the Company or such any Restricted Subsidiary (other than contingent liabilities and liabilities that are by their terms subordinated to the Notes or any guarantee Guarantee thereof) that are assumed by the transferee of any such assets pursuant to a customary novation agreement such that releases the Company or such Restricted Subsidiary from has no further liabilityliability shall be deemed to be cash for purposes of this provision, (by) any securities, notes or other obligations received by the Company or any such Restricted Subsidiary from such transferee that are immediately converted by the Company or such Restricted Subsidiary into cash (to the extent of the cash received) and (c) escrowed cash that the Company reasonably believes will be released from escrow within 365 days from the date of consummation of such Asset Sale), in each case shall be deemed to be cash for purposes of this provision. Notwithstanding the immediately preceding paragraph, the Company provision and its Restricted Subsidiaries will be permitted to consummate an Asset Sale without complying with such paragraph if (iz) the Company or licensing of intellectual property which does not constitute the applicable Restricted Subsidiary, as transfer of substantially all of the case may be, receives consideration at the time economic value 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 and does not limit the Company's Board use of Directors set forth in an Officers' Certificate delivered such intellectual property for Permitted Businesses shall be deemed to the Trustee) and comply with clause (ii) at least 75% of above if the consideration for such Asset Sale constitutes a controlling interest payments thereon are in a Permitted Business, long-term assets used or useful in a Permitted Business and/or cash or Cash Equivalents; provided that any cash or Cash Equivalents received by the Company or any of its Restricted Subsidiaries in connection with any Asset Sale permitted to be consummated under this paragraph shall constitute Net Proceeds subject to the provisions of the next succeeding paragraphover time. Within 365 360 days of after the receipt of any Net Proceeds from an Asset Sale, the Company may apply such Net Proceeds, at its option, (ia) to repay Senior Debt term Indebtedness under a the New Credit Facility or other Senior Debt, (b) to repay and to correspondingly permanently reduce commitments with respect thereto in the case availability of revolving borrowings) credit Indebtedness under the New Credit Facility or (iic) to the acquisition of a controlling interest in a Permitted Businessanother business or of all or substantially all of the assets of another business, or to the making of a capital expenditure or the acquisition of other long-term assets, in each case, used or useful case in a Permitted BusinessBusinesses. Pending the final application of any such Net Proceeds, the Company may temporarily reduce Senior Debt revolving Indebtedness or otherwise invest such Net Proceeds in any manner that is not prohibited by this Indenture. Any Net Proceeds from Asset Sales that are not applied or invested as provided in the first sentence of this paragraph shall will be deemed to constitute "Excess ProceedsEXCESS PROCEEDS." When the aggregate amount of Excess Proceeds exceeds $10.0 5.0 million, the Company shall be required to make an offer to all Holders of Notes and all holders of other pari passu Indebtedness containing provisions similar to those set forth in this Indenture with respect to offers to purchase or redeem such other pari passu Indebtedness with the proceeds of sales of assets (an "Asset Sale Offer") Offer pursuant to 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 Proceeds, at an offer price in cash in an amount equal to 100% of the aggregate principal amount thereof, thereof plus accrued and unpaid interest and Liquidated DamagesDamages thereon, if any, thereon to the date of purchase, in accordance with the procedures set forth in this Indenture and in such other pari passu IndebtednessSection 4.09 hereof. To the extent that the aggregate amount of Notes and such other pari passu Indebtedness tendered pursuant to an Asset Sale Offer is less than the Excess Proceeds, the Company may use any remaining Excess Proceeds for any purpose not otherwise prohibited by this Indenture. If the aggregate principal amount of Notes and such other pari passu Indebtedness surrendered by Holders thereof exceeds the amount of Excess Proceeds, the Trustee shall select the Notes and such other pari passu Indebtedness to be purchased on a pro rata basisgeneral corporate purposes. Upon completion of an Asset Sale Offersuch offer to purchase, the amount of Excess Proceeds shall be reset at zero.
Appears in 1 contract
Asset Sales. (1) The Company shall Issuer will not, and shall will not permit any of its Restricted Subsidiaries Subsidiary to, (i) sell, lease, convey or otherwise dispose of any assets (including by way of a sale-and-leaseback) other than sales of inventory or the licensing of trademarks (but not the sale of any trademark) in the ordinary course of business (provided that the sale, lease, conveyance or other disposition of all or substantially all of the assets of the Issuer shall be governed by the provisions of Section 801 hereof), or (ii) consummate an Asset Sale unless unless: (i) the Company or such Restricted Subsidiary, as the case may be, receives consideration at the time of such Asset Sale at least equal to the fair market value (evidenced by a resolution of the Board of Directors set forth in an Officers' Certificate delivered to the Trustee) of the assets or Equity Interests issued or sold or otherwise disposed of and (ii) at least 75% of the consideration therefor received by the Company or such Restricted Subsidiary is in the form of cash or Cash Equivalents; provided that the amount of (a) any liabilities (as shown on the Company's or such Restricted Subsidiary's most recent balance sheet) of the Company or such Restricted Subsidiary (other than contingent liabilities and liabilities that are by their terms subordinated to the Notes or any guarantee thereof) that are assumed by the transferee of any such assets pursuant to a customary novation agreement that releases the Company or such Restricted Subsidiary from further liability, (b) any securities, notes or other obligations received by the Company or such Restricted Subsidiary from such transferee that are immediately converted by the Company or such Restricted Subsidiary into cash (to the extent of the cash received) and (c) escrowed cash that the Company reasonably believes will be released from escrow within 365 days from the date of consummation of such Asset Sale, in each case shall be deemed to be cash for purposes of this provision. Notwithstanding the immediately preceding paragraph, the Company and its Restricted Subsidiaries will be permitted to consummate an Asset Sale without complying with such paragraph if (i) the Company Issuer or the applicable Restricted Subsidiary, as the case may be, receives consideration at the time of such Asset Sale at least equal to the fair market value of the assets or other property sold, issued sold or otherwise disposed of (as evidenced by a resolution of the Company's Board of Directors set forth in an Officers' Certificate delivered to the Trustee) Directors), and (ii) at least 75% of the consideration for received by the Issuer or the Subsidiary, as the case may be, from such Asset Sale constitutes a controlling interest in a Permitted Business, long-term assets used or useful in a Permitted Business and/or cash or Cash Equivalents; provided that any cash or Cash Equivalents received by the Company shall be Qualified Consideration. The Issuer or any of its Restricted Subsidiaries in connection with any Asset Sale permitted to be consummated under this paragraph shall constitute Net Proceeds subject to the provisions of the next succeeding paragraph. Within Subsidiary may, within 365 days of the receipt of any Net Proceeds from an Asset Sale, invest the Company may apply such Net ProceedsCash Proceeds thereof (A) in property or assets used, at its optionor to be used, in the Issuer's line of business, or in a company engaged primarily in the Issuer's line of business (iif and to the extent otherwise permitted under this Indenture), or (B) to repay Senior any Debt under of the Issuer, other than subordinated debt, or any Debt of a Credit Facility (and to correspondingly reduce commitments with respect thereto Subsidiary. The amount of such Net Cash Proceeds not used or invested within 365 days of the Asset Sale in the case of revolving borrowingsmanner described in clauses (A) or and (iiB) to the acquisition of a controlling interest in a Permitted Business, the making of a capital expenditure or the acquisition of other long-term assets, in each case, used or useful in a Permitted Business. Pending the final application of any such Net Proceeds, the Company may temporarily reduce Senior Debt or otherwise invest such Net Proceeds in any manner that is not prohibited by this Indenture. Any Net Proceeds from Asset Sales that are not applied or invested as provided in the first sentence of this paragraph above shall be deemed to constitute "Excess Proceeds." When In the aggregate amount of event that Excess Proceeds exceeds exceed $10.0 million, the Company Issuer shall be required to make an offer Offer to all Holders of Notes and all holders of other pari passu Indebtedness containing provisions similar to those set forth in this Indenture with respect to offers to purchase or redeem such other pari passu Indebtedness with the proceeds of sales of assets (an "Asset Sale Offer") to purchase the maximum principal Purchase that amount of Notes and such other pari passu Indebtedness that may be purchased out Securities equal to the amount of the Excess Proceeds at an offer a price in cash in an amount equal to 100% of the principal amount thereofof the Securities to be purchased, plus accrued and unpaid interest and Liquidated Damagesinterest, if any, thereon to the date of purchasepurchase and, in accordance to the extent required by the terms thereof, any other Debt of the Issuer that is pari passu with the procedures set forth in this Indenture and in such other pari passu IndebtednessSecurities or Debt of a Subsidiary. To Each Offer to Purchase shall be mailed within 30 days following the extent date that the aggregate amount of Notes and such other pari passu Indebtedness tendered pursuant Issuer shall become obligated to an Asset Sale Offer is less than the purchase Securities with any Excess Proceeds, . Following the Company may use any remaining Excess Proceeds for any purpose not otherwise prohibited by this Indenture. If the aggregate principal amount of Notes and such other pari passu Indebtedness surrendered by Holders thereof exceeds the amount of Excess Proceeds, the Trustee shall select the Notes and such other pari passu Indebtedness to be purchased on a pro rata basis. Upon completion of an Asset Sale OfferOffer to Purchase, the amount of Excess Proceeds shall be deemed to be reset at zerozero and, to the extent there are any remaining Excess Proceeds the Issuer may use such Excess Proceeds for any use which is not otherwise prohibited by this Indenture. The Issuer will comply with the requirements of Rule 14e-1 under the Exchange Act and any other securities laws and regulations thereunder to the extent such laws and regulations are applicable in connection with the purchase of Securities pursuant to such Offer to Purchase.
(2) Not later than the date of the Offer with respect to an Offer to Purchase pursuant to this Section 1015, the Issuer shall deliver to the Trustee an Officers' Certificate as to (i) the Purchase Amount, (ii) the allocation of the Net Cash Proceeds from the Asset Sale(s) pursuant to which such Offer is being made, including, if amounts are invested in assets related to the business of the Issuer, the actual assets acquired and a statement indicating the relationship of such assets to the business of the Issuer and (iii) the compliance of such allocation with the provisions of Section 1015(1). The Issuer shall perform its obligations specified in the Offer for the Offer to Purchase. On or prior to the Purchase Date, the Issuer shall (i) accept for payment (on a pro rata basis, if necessary) Securities or portions thereof tendered pursuant to the Offer, (ii) deposit with the Paying Agent (or, if the Issuer is acting as its own Paying Agent, segregate and hold in trust as provided in Section 1003) money sufficient to pay the purchase price of all Securities or portions thereof so accepted and (iii) deliver or cause to be delivered to the Trustee all Securities so accepted together with an Officers' Certificate stating the Securities or portions thereof accepted for payment by the Issuer. The Paying Agent (or the Issuer, if so acting) shall promptly mail or deliver to Holders of Securities so accepted payment in an amount equal to the purchase price, and the Trustee shall promptly authenticate and mail or deliver to such Holders a new Security equal in principal amount to any unpurchased portion of the Security surrendered. Any Security not accepted for payment shall be promptly mailed or delivered by the Issuer to the Holder thereof. The Issuer shall publicly announce the results of the Offer on or as soon as practicable after the Purchase Date. SECTION 1016. [Omitted].
Appears in 1 contract
Sources: Indenture (General Media Inc)
Asset Sales. The Company shall not, and shall not permit any of its Restricted Subsidiaries to, consummate an Asset Sale unless (i) the Company or such the Restricted Subsidiary, as the case may be, receives consideration at the time of such Asset Sale at least equal to the fair market value (evidenced by an Officers' Certificate delivered to the Trustee which will include a resolution of the Board of Directors set forth with respect to such fair market value in an Officers' Certificate delivered to the Trusteeevent such Asset Sale involves aggregate consideration in excess of $50.0 million) of the assets or Equity Interests issued or sold or otherwise disposed of and (ii) at least 75% of the consideration therefor received by the Company or such Restricted Subsidiary is in Subsidiary, as the form case may be, consists of cash or cash, Cash EquivalentsEquivalents and/or Marketable Securities; provided provided, however, that (A) the amount of (a) any liabilities (as shown on the Company's or such Restricted Subsidiary's most recent balance sheet) Senior Debt of the Company or such Restricted Subsidiary (other than contingent liabilities and liabilities that are by their terms subordinated to the Notes or any guarantee thereof) that are is assumed by the transferee of in any such assets pursuant to a customary novation agreement that releases the Company or such Restricted Subsidiary from further liability, transaction and (bB) any securities, notes or other obligations consideration received by the Company or such Restricted Subsidiary from such transferee Subsidiary, as the case may be, that consists of (1) all or substantially all of the assets of one or more Similar Businesses, (2) other long-term assets that are immediately converted by the Company used or such Restricted Subsidiary into cash (to the extent of the cash received) useful in one or more Similar Businesses and (c3) escrowed cash that the Company reasonably believes will be released from escrow within 365 days from the date of consummation of such Asset Sale, in each case Permitted Securities shall be deemed to be cash for purposes of this provision. Notwithstanding the immediately preceding paragraph, the Company and its Restricted Subsidiaries will be permitted to consummate an Asset Sale without complying with such paragraph if (i) the Company or the applicable Restricted Subsidiary, as the case may be, receives consideration at the time of such Asset Sale at least equal to the fair market value of the assets or other property sold, issued or otherwise disposed of (as evidenced by a resolution of the Company's Board of Directors set forth in an Officers' Certificate delivered to the Trustee) and (ii) at least 75% of the consideration for such Asset Sale constitutes a controlling interest in a Permitted Business, long-term assets used or useful in a Permitted Business and/or cash or Cash Equivalents; provided that any cash or Cash Equivalents received by the Company or any of its Restricted Subsidiaries in connection with any Asset Sale permitted to be consummated under this paragraph shall constitute Net Proceeds subject to the provisions of the next succeeding paragraph. Within 365 days of after the receipt of any Net Proceeds from an Asset Sale, the Company may apply such Net Proceeds, at its option, (i) to repay Senior Debt Indebtedness under a Credit Facility (and to correspondingly reduce commitments with respect thereto in the case of revolving borrowings) or Facility, (ii) to the acquisition of a controlling interest in a Permitted BusinessSecurities, (iii) to the acquisition of all or substantially all of the assets of one or more Similar Businesses, (iv) to the making of a capital expenditure or (v) to the acquisition of other long-term assets, in each case, used or useful assets in a Permitted Similar Business. Pending the final application of any such Net Proceeds, the Company may temporarily reduce Senior Debt Indebtedness under a Credit Facility or otherwise invest such Net Proceeds in any manner that is not prohibited by this Indenture. Any Net Proceeds from Asset Sales that are not applied or invested as provided in the first sentence of this paragraph shall be deemed to constitute "Excess Proceeds." ". When the aggregate amount of Excess Proceeds exceeds $10.0 25.0 million, the Company shall will be required to make an offer to all Holders of the Notes and all holders of other pari passu Indebtedness containing provisions similar to those set forth in this Indenture with respect to offers to purchase or redeem such other pari passu Indebtedness with the proceeds of sales of assets (an "Asset Sale Offer") and any other Indebtedness that ranks pari passu with the Notes (including, without limitation, the 2002 Notes, the May 2003 Notes, the December 2003 Notes and the November 2004 Notes) that, by its terms, requires the Company to offer to repurchase such Indebtedness with such Excess Proceeds to purchase the maximum principal amount of Notes and such other pari passu Indebtedness that may be purchased out of the such Excess Proceeds at an offer price in cash in an amount equal to 100% of the principal amount thereof, thereof plus accrued and unpaid interest and Liquidated Damagesthereon, if any, thereon to the date of purchase, in accordance with the procedures set forth in this Indenture and in such other pari passu IndebtednessIndenture. To the extent that the aggregate amount of Notes and such other or pari passu Indebtedness tendered pursuant to an Asset Sale Offer is less than the Excess Proceeds, the Company may use any remaining Excess Proceeds for any purpose not otherwise prohibited by this Indenturegeneral corporate purposes. If the aggregate principal amount of Notes and such other or pari passu Indebtedness surrendered by Holders thereof exceeds the amount of Excess ProceedsProceeds in an Asset Sale Offer, the Company shall repurchase such Indebtedness on a pro rata basis and the Trustee shall select the Notes and such other pari passu Indebtedness to be purchased on a pro rata basis. Upon completion of an Asset Sale Offersuch offer to purchase, the amount of Excess Proceeds shall be reset at zero.
Appears in 1 contract
Asset Sales. The Company shall not, and shall not permit any of its Restricted Subsidiaries to, directly or indirectly, consummate an any Asset Sale unless unless:
(ia) the Company or such Restricted Subsidiary, as the case may be, Subsidiary receives consideration at the time of such Asset Sale at least equal to the fair market value (evidenced by a resolution Fair Market Value of the Board of Directors set forth in an Officers' Certificate delivered Property subject to the Trustee) of the assets or Equity Interests issued or sold or otherwise disposed of and such Asset Sale;
(iib) at least 75% of the consideration therefor received by paid to the Company or such Restricted Subsidiary in connection with such Asset Sale is in the form of cash or Cash Equivalents; provided that Equivalents or the amount assumption by the purchaser of (a) any liabilities (as shown on the Company's or such Restricted Subsidiary's most recent balance sheet) of the Company or such Restricted Subsidiary any of its Subsidiaries (other than contingent liabilities and or liabilities that are by their terms subordinated to the Notes or any guarantee thereofthe applicable Guarantee) that are assumed by the transferee as a result of any such assets pursuant to a customary novation agreement that releases which the Company or and its Subsidiaries are no longer obligated with respect to such Restricted Subsidiary from further liability, (b) any securities, notes or other obligations received by the Company or such Restricted Subsidiary from such transferee that are immediately converted by the Company or such Restricted Subsidiary into cash (to the extent of the cash received) and liabilities;
(c) escrowed cash that the Company reasonably believes will no Default or Event of Default shall have occurred and be released from escrow within 365 days from the date of consummation continuing or would occur as a result of such Asset Sale, in each case shall be deemed to be cash for purposes of this provision. Notwithstanding the immediately preceding paragraph, the Company and its Restricted Subsidiaries will be permitted to consummate an Asset Sale without complying with such paragraph if ;
(id) the Company or could Incur at least US$1.00 of Debt in compliance with Section 4.09 after giving effect to such Asset Sale; and
(e) the applicable Restricted Subsidiary, as Company delivers an Officers’ Certificate to the case may be, receives consideration at the time of Trustee certifying that such Asset Sale at least equal complies with the foregoing clauses (a) to the fair market value of the assets (d). The Net Available Cash (or other property sold, issued or otherwise disposed of (as evidenced by a resolution of the Company's Board of Directors set forth in an Officers' Certificate delivered to the Trusteeany portion thereof) and (ii) at least 75% of the consideration for such from Asset Sale constitutes a controlling interest in a Permitted Business, long-term assets used or useful in a Permitted Business and/or cash or Cash Equivalents; provided that any cash or Cash Equivalents received Sales may be applied by the Company or any of its Restricted Subsidiaries Subsidiaries, to the extent the Company or such Subsidiary elects (or is required by the terms of any Debt) to reinvest in connection Additional Assets (including by means of an Investment in Additional Assets by any Subsidiary of the Company with any Net Available Cash received by the Company or another Subsidiary of the Company). Any Net Available Cash from an Asset Sale permitted to be consummated under this not applied in accordance with the preceding paragraph shall constitute Net Proceeds subject to within 120 days from the provisions of the next succeeding paragraph. Within 365 days date of the receipt of any Net Proceeds from an Asset Sale, the Company may apply such Net Proceeds, at its option, (i) to repay Senior Debt under a Credit Facility (and to correspondingly reduce commitments with respect thereto in the case of revolving borrowings) or (ii) to the acquisition of a controlling interest in a Permitted Business, the making of a capital expenditure or the acquisition of other long-term assets, in each case, used or useful in a Permitted Business. Pending the final application of any such Net Proceeds, the Company may temporarily reduce Senior Debt or otherwise invest such Net Proceeds in any manner that is not prohibited by this Indenture. Any Net Proceeds from Asset Sales that are not applied or invested as provided in the first sentence of this paragraph Available Cash shall be deemed to constitute "“Excess Proceeds." ”. When the aggregate amount of Excess Proceeds exceeds $10.0 million5.0 million (taking into account income earned on such Excess Proceeds, if any), the Company shall will be required to make an offer to all Holders of Notes and all holders of other pari passu Indebtedness containing provisions similar to those set forth in this Indenture with respect to offers to purchase or redeem such other pari passu Indebtedness with repurchase (the proceeds of sales of assets (an "“Asset Sale Offer"”) to purchase the maximum principal Notes, which offer shall be in the amount of Notes and such other pari passu Indebtedness that may be purchased out of the Allocable Excess Proceeds at an offer price in cash in an amount equal to 100% of the principal amount thereof, plus accrued and unpaid interest and Liquidated Damages, if any, thereon (rounded to the date of purchasenearest $100,000), on a pro rata basis according to principal amount, at the Repurchase Amount, in accordance with the procedures (including prorating in the event of oversubscription) set forth in this Indenture and in such other pari passu IndebtednessSection 3.02. To the extent that any portion of the aggregate amount of Net Available Cash remains after compliance with the preceding sentence and provided that all holders of Notes and such other pari passu Indebtedness tendered pursuant have been given the opportunity to an Asset Sale Offer is less than the Excess Proceedstender their Notes for repurchase in accordance with Section 3.02, the Company or such Subsidiary may use such remaining amount first to Repay the Credit Facilities or any remaining Excess Proceeds other Senior Debt of the Company or any Guarantor or Debt of any Subsidiary of the Company that is not a Guarantor (excluding, in any such case, any Debt owed to the Company or an Affiliate of the Company), and only thereafter, for any purpose not otherwise prohibited permitted by this Indenture. If the aggregate principal amount of Notes , and such other pari passu Indebtedness surrendered by Holders thereof exceeds the amount of Excess Proceeds, the Trustee shall select the Notes and such other pari passu Indebtedness to be purchased on a pro rata basis. Upon completion of an Asset Sale Offer, the amount of Excess Proceeds shall will be reset at to zero.
Appears in 1 contract
Sources: Indenture (Origin Agritech LTD)
Asset Sales. The Company shall not, and shall not permit any of its Restricted Subsidiaries to, consummate an Asset Sale unless (i) the Company or such Restricted Subsidiary, as the case may be, Subsidiary receives consideration at the time of such Asset Sale at least equal to the fair market value (evidenced which, in the case of any Asset Sale involving shares or assets having a fair market value in excess of $2.0 million, shall be determined in good faith by a resolution of the Company's Board of Directors set forth in an Officers' Certificate delivered to the TrusteeDirectors) of the assets or Equity Interests issued or sold or otherwise disposed of and (ii) at least 75% of the consideration therefor received by the Company or such Restricted Subsidiary is in the form of cash or Cash Equivalents; provided that the amount of (ax) any liabilities (as shown on the Company's or such Restricted Subsidiary's most recent balance sheet) Senior Debt of the Company or such Restricted any Subsidiary (other than contingent liabilities and liabilities of the Company that are by their terms subordinated to the Notes or any guarantee thereof) that are is assumed by the transferee of any such assets pursuant to a customary novation agreement that releases the Company or such Restricted Subsidiary from further liability, liability thereon and (by) any securities, notes or other obligations received by the Company or any such Restricted Subsidiary from such transferee that are immediately converted by the Company or such Restricted Subsidiary into cash (to the extent of the cash received) and (c) escrowed cash that the Company reasonably believes will be released from escrow within 365 days from the date of consummation of such Asset Sale), in each case shall be deemed to be cash for purposes of this provision. Notwithstanding the immediately preceding paragraph; and provided, the Company and its Restricted Subsidiaries will be permitted to consummate an further, that any Asset Sale without complying with such paragraph if (i) the Company pursuant to a condemnation, appropriation or the applicable Restricted Subsidiaryother similar taking, as the case may beincluding by deed in lieu of condemnation, receives consideration at the time of such Asset Sale at least equal or pursuant to the fair market value of the assets foreclosure or other property soldenforcement of a Permitted Lien or exercise by the related lienholder of rights with respect thereto, issued including by deed or otherwise disposed assignment in lieu of (as evidenced by a resolution of foreclosure shall not be required to satisfy the Company's Board of Directors conditions set forth in an Officers' Certificate delivered to the Trusteeclauses (i) and (ii) at least 75% of the consideration for such Asset Sale constitutes a controlling interest in a Permitted Business, long-term assets used or useful in a Permitted Business and/or cash or Cash Equivalents; provided that any cash or Cash Equivalents received by the Company or any of its Restricted Subsidiaries in connection with any Asset Sale permitted to be consummated under this paragraph shall constitute Net Proceeds subject to the provisions of the next succeeding paragraph. Within 365 270 days of after the receipt of any Net Proceeds from an Asset Sale, the Company may apply such Net Proceeds, at its option, (ia) to repay Senior Debt Indebtedness under a any Credit Facility (and to correspondingly permanently reduce the commitments with respect thereto thereto; provided that the Company shall not be required to effect such permanent reductions from the Issue Date in the case excess of revolving borrowingsan aggregate of $25.0 million) or (iib) to acquire or make a controlling Investment in or with respect to a Permitted Business or the acquisition of a controlling interest in all or substantially all of the assets of a Permitted Business, or the making of a capital expenditure or the acquisition of other long-term assets, in each case, used or useful assets in a Permitted Business. Pending the final application of any such Net Proceeds, the Company may temporarily reduce Senior Debt Indebtedness under any Credit Facility or otherwise invest such Net Proceeds in any manner that is not prohibited by this Indenturehereby. Any Net Proceeds from an Asset Sales Sale that are not applied or invested as provided in the first sentence of this paragraph shall be deemed to constitute "Excess Proceeds." from an Asset Sale. When the aggregate amount of Excess Proceeds exceeds $10.0 5.0 million, the Company shall be required to make an offer to all Holders of Notes and all holders of other pari passu Indebtedness containing provisions similar to those set forth in this Indenture with respect to offers to purchase or redeem such other pari passu Indebtedness with the proceeds of sales of assets (an "Asset Sale Offer") to purchase the maximum principal amount of Notes and such other pari passu Indebtedness that may be purchased out of the Excess Proceeds Proceeds, at an offer price in cash in an amount equal to 100% of the principal amount thereof, thereof plus accrued and unpaid interest and Liquidated DamagesDamages thereon, if any, thereon to the date of purchase, in accordance with the procedures set forth in this Indenture and in such other pari passu Indebtednessherein. To the extent that the aggregate amount of Notes and such other pari passu Indebtedness tendered pursuant to an Asset Sale Offer is less than the Excess Proceeds, the Company may use any remaining Excess Proceeds for any purpose not otherwise prohibited by this Indenturegeneral corporate purposes. If the aggregate principal amount of Notes and such other pari passu Indebtedness surrendered by Holders thereof exceeds the amount of Excess Proceeds, the Trustee shall select the Notes and such other pari passu Indebtedness to be purchased on a pro rata basis. Upon completion of an Asset Sale Offersuch offer to purchase, the amount of Excess Proceeds shall be reset at zero.
Appears in 1 contract
Sources: Indenture (RWBV Acquisition Corp)
Asset Sales. The Company shall notSubject to the Intercreditor Agreements, the Notes Indenture (in effect on the date hereof) and shall not permit the Existing ABL Credit Agreement (in effect on the date hereof) and subject to each of the terms and conditions of this Section 2.4(d)(ii)(2), on the date of receipt by Borrower or any of its Restricted Subsidiaries toof Net Cash Proceeds from any Asset Sale, consummate Borrower shall make an Offer to Prepay and each Lender will have the right to require Borrower to prepay the outstanding principal amount of the Loans owing to such Lender together with any accrued and unpaid interest to but not including the Prepayment Date pursuant to an Offer to Prepay, in an amount equal to the Net Cash Proceeds received from such Asset Sale unless Sale. Subject to Section 2.4(e)(ii) below, on the Prepayment Date, Borrower shall, to the extent lawful, (iA) prepay the Company Loans (or the portion thereof), together with any accrued and unpaid interest of each Lender that has accepted the Offer for Prepayment, and (B) otherwise comply with Section 2.4(e); provided, Borrower or any of its Subsidiaries, may, within 365 days after receipt of such Restricted SubsidiaryNet Cash Proceeds, apply such Net Cash Proceeds to an Investment permitted under this Agreement 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 Borrower or any of its Subsidiaries, as the case may be, receives consideration at owning an amount of the time capital Stock of such business such that it constitutes a Subsidiary of Borrower, (b) properties, (c) capital expenditures or (d) other assets that, in each of (a), (b), (c) and (d), replace the businesses, properties and assets that are the subject of such Asset Sale at least equal to the fair market value (evidenced by a resolution of the Board of Directors set forth in an Officers' Certificate delivered to the Trustee) of the assets or Equity Interests issued are used or sold or otherwise disposed of and (ii) at least 75% of the consideration therefor received by the Company or such Restricted Subsidiary is useful in the form of cash or Cash Equivalents; provided that the amount of Permitted Business (clauses (a) any liabilities (as shown on the Company's or such Restricted Subsidiary's most recent balance sheet) of the Company or such Restricted Subsidiary (other than contingent liabilities and liabilities that are by their terms subordinated to the Notes or any guarantee thereof) that are assumed by the transferee of any such assets pursuant to a customary novation agreement that releases the Company or such Restricted Subsidiary from further liability), (b), (c) any securitiesand (d) together, notes or other obligations received by the Company or such Restricted Subsidiary from such transferee “Additional Assets”); provided further that are immediately converted by the Company or such Restricted Subsidiary into cash (to the extent of the cash received) and (c) escrowed cash that the Company reasonably believes will be released from escrow within 365 days from assets that were subject to the date of consummation of such Asset Sale, in each case shall be deemed to be cash for purposes of this provision. Notwithstanding the immediately preceding paragraph, the Company and its Restricted Subsidiaries will be permitted to consummate an Asset Sale without complying with constituted ABL Priority Collateral (as defined in the ABL-Notes Intercreditor Agreement), such paragraph if Additional Assets shall also constitute ABL Priority Collateral (i) the Company and Borrower or the applicable Restricted Subsidiaryits Subsidiaries, as the case may be, receives consideration at the time shall promptly take such action (if any) as may be required to cause that portion of such Investment constituting ABL Priority Collateral to be added to the ABL Priority Collateral securing the Obligations. For purposes of the foregoing and determining whether assets subject to an Asset Sale at least equal constitute ABL Priority Collateral, the sale or other disposition of Stock of a Person shall be treated as a sale or other disposition of assets of such Person and assets sold shall be allocated between Notes Priority Collateral and ABL Priority Collateral (as each such term is defined in the ABL-Notes Intercreditor Agreement) in accordance with Section 3.5(c) of the ABL- Notes Intercreditor Agreement, as if the allocation therein would apply to such Asset Sale. Pursuant to the fair market value first proviso of this subclause (2), a binding commitment shall be treated as a permitted application of the assets or other property sold, issued or otherwise disposed Net Cash Proceeds from the date of (such commitment so long as evidenced by a resolution of the Company's Board of Directors set forth in an Officers' Certificate delivered to the Trustee) and (ii) at least 75% of the consideration for such Asset Sale constitutes a controlling interest in a Permitted Business, long-term assets used or useful in a Permitted Business and/or cash or Cash Equivalents; provided that any cash or Cash Equivalents received by the Company Borrower or any of its Restricted Subsidiaries in connection enters into such commitment with any Asset Sale permitted the good faith expectation that such Net Cash Proceeds will be applied to be consummated under this paragraph satisfy such commitment within 180 days of such commitment; provided, that if such commitment is later terminated or cancelled prior to the application of such Net Cash Proceeds, then such Net Cash Proceeds shall constitute Net Proceeds subject to the provisions of the next succeeding paragraph. Within 365 days of the receipt of any Net Proceeds from an Asset Sale, the Company may apply such Net Excess Proceeds, at its option, (i) to repay Senior Debt under a Credit Facility (and to correspondingly reduce commitments with respect thereto in the case of revolving borrowings) or (ii) to the acquisition of a controlling interest in a Permitted Business, the making of a capital expenditure or the acquisition of other long-term assets, in each case, used or useful in a Permitted Business. Pending the final application of any such Net Proceeds, the Company may temporarily reduce Senior Debt or otherwise invest such Net Proceeds in any manner that is not prohibited by this Indenture. Any Net Cash Proceeds from the Asset Sales covered by this subclause (2) that are not invested or applied or invested as provided in and within the first sentence of this paragraph shall time period set forth above will be deemed to constitute "“Excess Proceeds." When ” and within 15 business days after the aggregate amount of Excess Proceeds exceeds $10.0 million5,000,000, the Company Borrower shall be required to make an offer Offer to all Holders of Notes and all holders of other pari passu Indebtedness containing provisions similar to those set forth in this Indenture with respect to offers to purchase or redeem such other pari passu Indebtedness with the proceeds of sales of assets (an "Asset Sale Offer") to purchase the maximum principal amount of Notes and such other pari passu Indebtedness that may be purchased out of the Excess Proceeds at an offer price in cash in Prepay an amount equal to 100% of the principal amount thereof, plus accrued and unpaid interest and Liquidated Damages, if any, thereon to the date of purchase, in accordance with the procedures set forth in this Indenture and in such other pari passu IndebtednessExcess Proceeds. To the extent that the aggregate amount of Notes and such other pari passu Indebtedness tendered Loans that are accepted for prepayment pursuant to an Asset Sale Offer to Prepay is less than the Excess Proceeds, the Company Borrower may use any remaining Excess Proceeds for any purpose not otherwise prohibited by this Indenture. If the aggregate principal amount of Notes and such other pari passu Indebtedness surrendered by Holders thereof exceeds the amount of Excess Proceeds, the Trustee shall select the Notes and such other pari passu Indebtedness to be purchased on a pro rata basisAgreement. Upon completion of an any such Asset Sale Offer, the amount of Excess Proceeds shall be reset at zero. After Borrower or any of its Subsidiaries has applied the Net Cash Proceeds from any Asset Sale of any Collateral as provided in, and within the time periods required by, this clause (2), Borrower may use the balance of such Net Cash Proceeds, if any, from such Asset Sale of Collateral for any purpose not prohibited by the terms of this Agreement.
Appears in 1 contract
Asset Sales. The Company shall Borrower will not, and shall will not permit any Non-Parent Surety or any of its Restricted Subsidiaries to, consummate engage in an Asset Sale unless (iother than the sale of Inventory in the ordinary course of its business) unless:
a. Borrower (Non-Parent Surety or the Company or such Restricted Subsidiary, as the case may be, ) receives consideration at the time of such Asset Sale at least equal to the fair market value (evidenced by a resolution Fair Market Value of the Board of Directors set forth in an Officers' Certificate delivered to the Trustee) of the assets property or Equity Interests issued or Capital Stock sold or otherwise disposed of and (ii) in such Asset Sale;
b. at least 7580% of the consideration therefor therefore received by the Company Borrower, Non-Parent Surety or such Restricted Subsidiary is in the form of cash or Cash Equivalents; provided provided,that (i) the amount of (a) any liabilities (as shown on the Company's Borrower’s, Non-Parent Surety’s or such Restricted Subsidiary's ’s most recent balance sheetsheet or in the notes thereto, excluding contingent liabilities and trade payables) of the Company Borrower, Non-Parent Surety or such Restricted any Subsidiary (other than contingent liabilities and liabilities that are by their terms subordinated to the Notes notes or any guarantee thereof) that are assumed by the transferee of any such assets pursuant to a customary novation agreement that releases the Company or such Restricted Subsidiary from further liability, property and (bii) any securities, notes or other obligations received by the Company Borrower, Non-Parent Surety or any such Restricted Subsidiary from such transferee that are immediately substantially contemporaneously (subject to ordinary settlement periods) converted by the Company Borrower, Non-Parent Surety or such Restricted Subsidiary into cash (to the extent of the cash received) and (c) escrowed cash received in that the Company reasonably believes conversion), will be released from escrow within 365 days from the date of consummation of such Asset Sale, in each case shall be deemed to be cash for purposes of this provision. Notwithstanding ;
c. if such Asset Sale involves the immediately preceding paragraphdisposition of Collateral, Borrower, Non-Parent Surety or Subsidiary shall apply the proceeds to reduce Borrower’s outstanding Obligations; and
d. if such Asset Sale involves the disposition of Property other than Collateral, the Company and its Restricted Subsidiaries will be permitted to consummate an Asset Sale without complying with such paragraph if (i) the Company or the applicable Restricted Subsidiary, as the case may be, receives consideration at the time proceeds 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 Company's Board of Directors set forth in an Officers' Certificate delivered to the Trustee) and (ii) at least 75% of the consideration for such Asset Sale constitutes a controlling interest in a Permitted Business, long-term assets used or useful in a Permitted Business and/or cash or Cash Equivalents; provided that any cash or Cash Equivalents received by the Company or any of its Restricted Subsidiaries in connection with any Asset Sale permitted to be consummated under this paragraph shall constitute Net Proceeds subject to the provisions of the next succeeding paragraph. Within 365 days of the receipt of any Net Proceeds from an Asset Sale, the Company may apply such Net Proceeds, at its option, (i) to repay Senior Debt under a Credit Facility (and to correspondingly reduce commitments with respect thereto in the case of revolving borrowings) or (ii) to the acquisition of a controlling interest in a Permitted Business, the making of a capital expenditure or the acquisition of other long-term assets, in each case, used or useful in a Permitted Business. Pending the final application of any such Net Proceeds, the Company may temporarily reduce Senior Debt or otherwise invest such Net Proceeds in any manner that is not prohibited by this Indenture. Any Net Proceeds from Asset Sales that are not applied or invested as provided in the first sentence of this paragraph shall be deemed to constitute "Excess Proceeds." When the aggregate amount of Excess Proceeds exceeds $10.0 million, the Company shall be required to make an offer to all Holders of Notes and all holders of other pari passu Indebtedness containing provisions similar to those set forth in this Indenture with respect to offers to purchase or redeem such other pari passu Indebtedness with the proceeds of sales of assets (an "Asset Sale Offer") to purchase the maximum principal amount of Notes and such other pari passu Indebtedness that may be purchased out of the Excess Proceeds at an offer price in cash in an amount equal to 100% of the principal amount thereof, plus accrued and unpaid interest and Liquidated Damages, if any, thereon to the date of purchase, applied in accordance with the procedures terms set forth in this the Indenture and in such other pari passu Indebtedness. To the extent that the aggregate amount of Notes and such other pari passu Indebtedness tendered pursuant to an Asset Sale Offer is less than the Excess Proceeds, the Company may use any remaining Excess Proceeds for any purpose not otherwise prohibited by this Indenture. If the aggregate principal amount of Notes and such other pari passu Indebtedness surrendered by Holders thereof exceeds the amount of Excess Proceeds, the Trustee shall select the Notes and such other pari passu Indebtedness to be purchased on a pro rata basis. Upon completion of an Asset Sale Offer, the amount of Excess Proceeds shall be reset at zeroAgreement.
Appears in 1 contract
Sources: Loan and Security Agreement (Colony Rih Holdings Inc)
Asset Sales. The Neither the Company shall not, and shall not permit nor any of its Restricted Subsidiaries toshall engage in any Asset Sale, consummate an Asset Sale unless unless:
(i) the Company or such Restricted Subsidiary, as the case may be, receives consideration at the time of such Asset Sale at least equal to the fair market value Fair Market Value (evidenced by a resolution of the Board of Directors set forth in an Officers' Certificate delivered to the Trustee) of the assets or Equity Interests issued or sold or otherwise disposed of and of; and
(ii) at least 7520% of the consideration therefor received by the Company or such Restricted Subsidiary is in the form of cash Cash or Cash Equivalents; provided provided, however, that if the Fair Market Value of the assets sold or otherwise disposed of exceeds $10,000,000, at least 80% of the consideration therefor received by the Company or such Restricted Subsidiaries is in the form of Cash or Cash Equivalents; provided, further, however, that the amount of (a) any liabilities (as shown on the Company's or such Restricted Subsidiary's most recent balance sheetsheet or in the notes thereto) of the Company or such Restricted Subsidiary (other than contingent liabilities and liabilities that are by their terms subordinated in right of payment to the Notes or any guarantee thereofNotes) that are assumed by the transferee of any such assets pursuant to a customary novation agreement that releases the Company or such Restricted Subsidiary from further liability, and (b) any securities, notes or other obligations received by the Company or such Restricted Subsidiary from such transferee that are immediately converted within 60 days by the Company or such Restricted Subsidiary into cash (to the extent of the cash so received) and (c) escrowed cash that the Company reasonably believes will be released from escrow within 365 days from the date of consummation of such Asset Sale), in each case shall be deemed to be cash for purposes of this provision. Notwithstanding the immediately preceding paragraph, the Company and its Restricted Subsidiaries will be permitted to consummate an Asset Sale without complying with such paragraph if (i) the Company or the applicable Restricted Subsidiary, as the case may be, receives consideration at the time of such Asset Sale at least equal to the fair market value of the assets or other property sold, issued or otherwise disposed of (as evidenced by a resolution of the Company's Board of Directors set forth in an Officers' Certificate delivered to the Trustee) and (ii) at least 75% of the consideration for such Asset Sale constitutes a controlling interest in a Permitted Business, long-term assets used or useful in a Permitted Business and/or cash or Cash Equivalents; provided that any cash or Cash Equivalents received by the Company or any of its Restricted Subsidiaries in connection with any Asset Sale permitted to be consummated under this paragraph shall constitute Net Proceeds subject to the provisions of the next succeeding paragraph. Within 365 180 days of after the receipt of any the Net Proceeds from an Asset Sale, the Company may shall apply the Net Proceeds from such Net ProceedsAsset Sale first, at its optionto permanently repay or reduce the Term Loan, (i) to repay Senior Debt under a Credit Facility (and to correspondingly the extent such Indebtedness is paid in full, to permanently repay or reduce commitments the Indebtedness evidenced by the Notes and to permanently reduce the commitment with respect thereto in the case of revolving borrowings) or (ii) to the acquisition of a controlling interest in a Permitted Business, the making of a capital expenditure or the acquisition of other long-term assets, in each case, used or useful in a Permitted BusinessRevolver. Pending the final application of any such Net Proceeds, the Company may temporarily reduce Senior Debt or otherwise invest such Net Proceeds in any manner that is not prohibited by this Indenture. Any Net Proceeds from the Asset Sales Sale that are not applied or invested as provided in the first sentence of this paragraph shall will be deemed to constitute "Excess Proceeds." When the aggregate cumulative amount of Excess Proceeds exceeds $10.0 million[5,000,000], the Company shall be required to make an offer to all Holders of Notes and all holders of other pari passu Indebtedness containing provisions similar to those set forth in this Indenture with respect to offers to purchase or redeem such other pari passu Indebtedness with the proceeds of sales of assets (an "Asset Sale Offer") to purchase the maximum principal amount of Notes and such other pari passu Indebtedness that may be purchased out of with the Excess Proceeds Proceeds, at an offer price in cash in an amount equal to 100% of the principal amount thereof, thereof plus accrued and unpaid interest and Liquidated Damages, if any, thereon to the date of purchase, in accordance with the procedures set forth in this Indenture and in such other pari passu IndebtednessSection 4.20 (an "Asset Sale Offer"). To the extent that the aggregate principal amount of Notes and such other pari passu Indebtedness tendered pursuant to an Asset Sale Offer is less than the Excess Proceeds, the Company may use such deficiency for general corporate purposes in any remaining Excess Proceeds for any purpose not otherwise prohibited manner provided by this Indenture. If the aggregate principal amount of Notes and such other pari passu Indebtedness surrendered by Holders thereof exceeds the amount of Excess Proceeds, the Trustee shall select the Notes and such other pari passu Indebtedness to be purchased on a pro rata basis. Upon completion of an Asset Sale Offersuch offer to purchase, the amount of Excess Proceeds shall be reset at zero. In the event that the Company shall be required to commence an Asset Sale Offer to all Holders to purchase Notes pursuant to this Section 4.20, it shall follow the procedures specified below. The Asset Sale Offer shall be commenced within 30 days following the first date on which the Company has cumulative Excess Proceeds of at least $[5,000,000] and remain open for a period of at least 30 and not more than 40 days, except to the extent that a longer period is required by applicable law (the "Repurchase Offer Period"). No later than five Business Days after the termination of the Offer Period (the "Repurchase Date"), the Company shall purchase the principal amount of Notes required to be purchased pursuant to this Section 4.20 hereof (the "Repurchase Price") or, if Notes having an aggregate principal amount less than the amount of Excess Proceeds subject to such Asset Sale Offer have been tendered, all Notes tendered in response to the Asset Sale Offer. Payment for any Notes so purchased shall be made in the same manner as interest payments are made. If the Repurchase Date is on or after an interest record date and on or before the related interest payment date, any accrued and unpaid interest shall be paid to the Person in whose name a Note is registered at the close of business on such record date, and no additional interest shall be payable to Holders who tender Notes pursuant to the Asset Sale Offer. Upon the commencement of an Asset Sale Offer, the Company shall send, by first class mail, a notice to the Trustee or to 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 4.20 and the length of time the Asset Sale Offer shall remain open;
(b) the Asset Sale Offer, the Repurchase Price and the Repurchase Date;
(c) that any Note not tendered or accepted for payment shall continue to accrue interest;
(d) that, unless the Company defaults in making such payment, any Note accepted for payment pursuant to the Asset Sale Offer shall cease to accrue interest after the Repurchase Date;
(e) that Holders electing to have a Note purchased pursuant to a Asset Sale Offer may only elect to have all of such Note purchased and may not elect to have only a portion of such Note purchased;
(f) that Holders electing to have a Note purchased pursuant to any Asset Sale Offer shall be required to surrender the Note, with the form entitled "Option of Holder to Elect Purchase" on the reverse of the Note completed, or transfer by book-entry transfer, to the Company, a depositary, if appointed by the Company, or a Paying Agent at the address specified in the notice at least three days before the Asset Sale Purchase Date;
(g) that Holders shall be entitled to withdraw their election if the Company, the Depositary or the Paying Agent, as the case may be, receives, not later than the expiration of the Repurchase Offer Period, a telegram, telex, facsimile transmission or letter setting forth the name of the Holder, the principal amount of the Note the Holder delivered for purchase and a statement that such Holder is withdrawing his election to have such Note purchased;
(h) that, if the aggregate principal amount of Notes surrendered by Holders exceeds the Repurchase Price, the Trustee shall select the Notes to be purchased on a pro rata basis (with such adjustments as may be deemed appropriate by the Trustee so that only Notes in denominations of $1,000, or integral multiples thereof, shall be purchased); and
(i) that Holders whose Notes were purchased only in part shall be issued new Notes equal in principal amount to the unpurchased portion of the Notes surrendered (or transferred by book-entry transfer). 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 Repurchase Date) mail or deliver to each tendering Holder an amount equal to the purchase price of the Notes tendered by such Holder and accepted by the Company for purchase, and the Company shall promptly issue a new Note, and the Trustee, upon written order 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 the Note surrendered. Any Note not so accepted shall be promptly mailed or delivered by the Company to the Holder thereof. The Company shall publicly announce the results of the Asset Sale Offer on the Repurchase Date. The Company shall comply with the requirements of Rule 14e-1 under the Exchange Act and any other securities laws, rules and regulations thereunder to the extent such laws, rules and regulations are applicable in connection with the repurchase of Notes pursuant to Asset Sale Offer.
Appears in 1 contract
Sources: Indenture (Neenah Foundry Co)
Asset Sales. (a) The Company shall not, and shall not permit any of its Restricted Subsidiaries Subsidiary to, consummate cause, make or suffer to exist an Asset Sale unless Sale, unless:
(i1) the Company or 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 as determined in good faith by a resolution of the Board of Directors set forth in an Officers' Certificate delivered to the TrusteeCompany) of the assets or Equity Interests issued or sold or otherwise disposed of; and
(2) except in the case of and (ii) a Permitted Asset Swap, 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 or Cash Equivalents; provided that the amount of of:
(aA) any liabilities (as shown on the Company's or such Restricted Subsidiary's most recent consolidated balance sheetsheet of the Company or in the footnotes thereto) of the Company or such Restricted Subsidiary (Subsidiary, other than contingent liabilities and liabilities that are by their terms subordinated to the Notes or any guarantee thereof) Notes, that are assumed by the transferee of any such assets pursuant to (or a customary novation agreement that releases third party on behalf of the transferee) and for which the Company or such Restricted Subsidiary from further liability, has been validly released by all creditors,
(bB) any securities, notes or other obligations or assets received by the Company or such Restricted Subsidiary from such transferee that are immediately converted by the Company or such Restricted Subsidiary into cash (to the extent of the cash received) and (c) escrowed cash that within 180 days following the Company reasonably believes will be released from escrow within 365 days from the date of consummation closing of such Asset Sale, and
(C) any Designated Noncash Consideration received by the Company or such Restricted Subsidiary in such Asset Sale having an aggregate fair market value, taken together with all other Designated Noncash Consideration received pursuant to this clause (C) that is at that time outstanding, not to exceed the greater of (x) $630.0 million and (y) 5.0% of Total Assets at the time of the receipt of such Designated Noncash Consideration, with the fair market value of each case item of Designated Noncash Consideration being measured at the time received and without giving effect to subsequent changes in value, shall be deemed to be cash for purposes of this provision. Notwithstanding the immediately preceding paragraph, the Company provision and its Restricted Subsidiaries will be permitted to consummate an Asset Sale without complying with such paragraph if for no other purpose.
(ib) the Company or the applicable Restricted Subsidiary, as the case may be, receives consideration at the time of such Asset Sale at least equal to the fair market value of the assets or other property sold, issued or otherwise disposed of (as evidenced by a resolution Within 540 days after any of the Company's Board of Directors set forth in an Officers' Certificate delivered to the Trustee) and (ii) at least 75% ’s or any Restricted Subsidiary’s receipt of the consideration for such Asset Sale constitutes a controlling interest in a Permitted Business, long-term assets used or useful in a Permitted Business and/or cash or Cash Equivalents; provided that any cash or Cash Equivalents received by the Company or any of its Restricted Subsidiaries in connection with any Asset Sale permitted to be consummated under this paragraph shall constitute Net Proceeds subject to the provisions of the next succeeding paragraph. Within 365 days of the receipt of any Net Proceeds from an Asset Sale, the Company may or such Restricted Subsidiary may, at its option, apply the Net Proceeds from such Net ProceedsAsset Sale:
(1) to permanently reduce (a) Obligations under any Senior Indebtedness of 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 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 Issuer or such Guarantor shall, equally and ratably, reduce Obligations under the Notes by, at its option, (i) to repay Senior Debt under a Credit Facility (and to correspondingly reduce commitments with respect thereto in the case of revolving borrowings) or redeeming Notes, (ii) 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 owning an amount of the Capital Stock of such business such that it constitutes a controlling interest Restricted Subsidiary, (B) an investment in a Permitted Businessproperties, the making of a (C) capital expenditure or the acquisition expenditures and (D) acquisitions of other long-term assets, that in each caseof (A), (B), (C) and (D), are used or useful in a Permitted Business. Pending the final application business of any such Net Proceeds, the Company may temporarily reduce Senior Debt and in Restricted Subsidiaries or otherwise invest replace the businesses, properties and assets that are the subject of such Net Proceeds in any manner that is not prohibited by this Indenture. Asset Sale.
(c) Any Net Proceeds from the Asset Sales Sale that are not invested or applied or invested as provided in accordance with Section 4.10(b) within 540 days from the first sentence date of this paragraph the receipt of such Net Proceeds shall be deemed to constitute "“Excess Proceeds." ”; provided that if during such 540-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) of the immediately preceding paragraph after such 540th day, such 540-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 (but such extension shall in no event be for a period longer than 180 days) (or, if earlier, the date of termination of such agreement). When the aggregate amount of Excess Proceeds exceeds $10.0 100.0 million, the Company Issuer shall be required to make an offer to all Holders and, if required by the terms of Notes and all any Senior Indebtedness of the Company or any Restricted Subsidiary, to the holders of such Senior Indebtedness (other pari passu Indebtedness containing provisions similar to those set forth in this Indenture than with respect to offers to purchase or redeem such other pari passu Indebtedness with the proceeds of sales of assets Hedging Obligations) (an "“Asset Sale Offer") ”), to purchase the maximum aggregate principal amount of Notes and such other pari passu Senior Indebtedness that, in the case of the Notes, is a minimum of €100,000 or an integral multiple of €1,000 in excess thereof, and 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 Damagesinterest, if any, thereon to the date fixed for the closing of purchasesuch offer, in accordance with the procedures set forth in this Indenture Indenture. Notwithstanding the foregoing, the Issuer shall only be required to make an Asset Sale Offer with (i) 50% of the Excess Proceeds if the Consolidated Secured Debt Ratio is less than or equal to 3.25 to 1.00 but greater than 2.75 to 1.00 and (ii) 0% of the Excess Proceeds if the Consolidated Secured Debt Ratio is equal to or less than 2.75 to 1.00, in each case after giving effect to any application of any Net Proceeds as set forth herein. The Issuer shall commence an Asset Sale Offer with respect to Excess Proceeds within ten Business Days after the date that Excess Proceeds exceed $100.0 million by transmitting electronically (or otherwise in accordance with the applicable procedures of Euroclear or Clearstream) 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 other pari passu IndebtednessNet Proceeds prior to the expiration of the relevant 540 days or with respect to Excess Proceeds of $100.0 million or less. To the extent that the aggregate amount of Notes and such other pari passu Senior Indebtedness tendered pursuant to an Asset Sale Offer is less than the Excess Proceeds, the Company may use any remaining Excess Proceeds for any purpose not otherwise prohibited by general corporate purposes, subject to the other covenants contained in this Indenture. If the aggregate principal amount of Notes and such other pari passu or the Senior Indebtedness surrendered by Holders such holders thereof exceeds the amount of Excess Proceeds, the Trustee Issuer shall select or cause to be selected the Notes and such other pari passu Senior Indebtedness to be purchased on a pro rata basisbasis based on the accreted value or principal amount of the Notes or such Senior Indebtedness tendered. Upon completion of an any such Asset Sale Offer, the amount of Excess Proceeds related to such Asset Sale Offer shall be reset at zero. Pending the final application of any Net Proceeds pursuant to 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 Issuer shall comply with the requirements of Rule 14e-1 under the Exchange Act and any other securities laws and regulations thereunder to the extent such laws or regulations are applicable in connection with the repurchase of the Notes pursuant to an Asset Sale Offer. To the extent that the provisions of any securities laws or regulations conflict with the provisions of this Indenture, the Issuer shall comply with the applicable securities laws and regulations and shall not be deemed to have breached its obligations described in this Indenture by virtue thereof. The provisions of this Indenture relating to the Issuer’s obligation to make an offer to repurchase the Notes as a result of an Asset Sale may be waived or modified at any time with the written consent of the Holders of a majority in aggregate principal amount of the Notes then outstanding.
Appears in 1 contract
Sources: Indenture (Aramark)
Asset Sales. The Company shall will not, and shall will not permit any of its Restricted Subsidiaries to, directly or indirectly, consummate an Asset Sale unless unless:
(i) the Company or such Restricted Subsidiary, as the case may be, receives consideration at the time of such Asset Sale at least equal to the fair market value (evidenced by a resolution of the Board of Directors set forth in an Officers' Certificate delivered to the Trustee) of the assets or Equity Interests issued or sold or otherwise disposed of and (iia) at least 75% of the consideration therefor proceeds from such Asset Sale are received by the Company or such Restricted Subsidiary is in the form of cash or Cash Equivalentscash; provided PROVIDED, HOWEVER, that the amount of (ai) any liabilities (as shown on the Company's or such Restricted Subsidiary's most recent balance sheet) Senior Indebtedness of the Company or such any Guarantor (or any Indebtedness of a Restricted Subsidiary (other than contingent liabilities and liabilities that are by their terms subordinated to the Notes or any guarantee thereofis not a Guarantor) that are is assumed by the transferee of any such assets pursuant to a customary novation agreement that releases the Company or such Restricted Subsidiary from further liability, asset in connection with any Asset Sale and (bii) any securities, notes or other obligations received by the Company or any such Restricted Subsidiary from such transferee or purchaser that are immediately converted by the Company or such Restricted Subsidiary into cash or Cash Equivalents within 60 days after receipt (to the extent of the any cash received) and (c) escrowed cash or Cash Equivalents received in that the Company reasonably believes will be released from escrow within 365 days from the date of consummation of such Asset Saleconversion), in each case shall be deemed to be cash for purposes of this provision. Notwithstanding the immediately preceding paragraph, the Company and its Restricted Subsidiaries will be permitted to consummate an Asset Sale without complying with such paragraph if ; and
(ib) the The Company or the applicable such Restricted Subsidiary, as the case may be, Subsidiary receives consideration at the time of such Asset Sale at least equal to the fair market value of the shares or assets or other property sold, issued or otherwise disposed of sold (as determined by the Board of Directors of the Company and evidenced by a board resolution for Asset Sales in excess of $15,000,000). Notwithstanding the foregoing, clause (a) of the Company's preceding paragraph shall not apply to any Asset Sale or portions thereof involving Excluded Assets or the making of any Permitted Investment pursuant to the definition of "PERMITTED INVESTMENT" or any Restricted Payment under Section 4.07 hereof. If all or a portion of the Net Cash Proceeds of any Asset Sale are not applied to prepay or repay permanently any Senior Indebtedness then outstanding as provided by the terms thereof (and to effect a corresponding commitment reduction in the event that the Senior Indebtedness prepaid or repaid is not a term loan) within 12 months of the closing of such Asset Sale, or if no such Senior Indebtedness is then outstanding, then the Company may within 12 months of the Asset Sale, invest the Net Cash Proceeds in properties and assets that (as determined by the Board of Directors Directors) replace the properties and assets that were the subject of the Asset Sale or in properties and assets that will be used in the businesses of the Company or its Restricted Subsidiaries existing on the date of this Indenture or in businesses reasonably related thereto which for purposes of this Indenture shall include any consumer products business. The amount of such Net Cash Proceeds neither used to permanently repay or prepay Senior Indebtedness nor used or invested as set forth in an Officers' Certificate delivered to the Trustee) and (ii) at least 75% of the consideration for such Asset Sale constitutes a controlling interest in a Permitted Business, long-term assets used or useful in a Permitted Business and/or cash or Cash Equivalents; provided that any cash or Cash Equivalents received by the Company or any of its Restricted Subsidiaries in connection with any Asset Sale permitted to be consummated under this paragraph shall constitute Net Proceeds subject to the provisions of the next succeeding paragraph. Within 365 days of the receipt of any Net Proceeds from an Asset Sale, the Company may apply such Net Proceeds, at its option, (i) to repay Senior Debt under a Credit Facility (and to correspondingly reduce commitments with respect thereto in the case of revolving borrowings) or (ii) to the acquisition of a controlling interest in a Permitted Business, the making of a capital expenditure or the acquisition of other long-term assets, in each case, used or useful in a Permitted Business. Pending the final application of any such Net Proceeds, the Company may temporarily reduce Senior Debt or otherwise invest such Net Proceeds in any manner that is not prohibited by this Indenture. Any Net Proceeds from Asset Sales that are not applied or invested as provided in the first sentence of this paragraph shall be deemed to constitute constitutes "Excess ProceedsEXCESS PROCEEDS." When the aggregate amount of Excess Proceeds exceeds equals $10.0 million25,000,000 or more, the Company shall be apply the Excess Proceeds to the repayment of the Notes and any Pari Passu Indebtedness required to be repurchased under the instrument governing such Pari Passu Indebtedness as follows:
(a) the Company shall make an offer to purchase (an "OFFER") from all Holders of the Notes and all holders of other pari passu Indebtedness containing provisions similar to those in accordance with the procedures set forth in this Indenture with respect to offers to purchase or redeem such other pari passu Indebtedness with the proceeds of sales of assets (an "Asset Sale Offer") to purchase in the maximum principal amount (expressed as a multiple of $1,000) of Notes and such other pari passu Indebtedness that may be purchased out of an amount (the "NOTE AMOUNT") equal to the product of such Excess Proceeds multiplied by a fraction, the numerator of which is the outstanding principal amount of the Notes, and the denominator of which is the sum of the outstanding principal amount of the Notes and such Pari Passu Indebtedness (subject to proration in the event such amount is less than the aggregate Offered Price (as defined herein) of all Notes tendered); and
(b) to the extent required by such Pari Passu Indebtedness to permanently reduce the principal amount of such Pari Passu Indebtedness, the Company shall make an offer to purchase or otherwise repay or repurchase or redeem Pari Passu Indebtedness (a "PARI PASSU OFFER") in an amount (the "PARI PASSU DEBT AMOUNT") equal to the excess of the Excess Proceeds at an over the Note Amount; PROVIDED that in no event shall the Pari Passu Debt Amount exceed the principal amount of such Pari Passu Indebtedness plus the amount of any premium required to be paid to repurchase such Pari Passu Indebtedness. The offer price shall be payable in cash in an amount equal to 100% of the principal amount thereof, of the Notes plus accrued and unpaid interest and Liquidated Damagesinterest, if any, thereon to the date of purchase(the "PURCHASE DATE") such Offer is consummated (the "OFFERED PRICE"), in accordance with the procedures set forth in this Indenture and in such other pari passu IndebtednessSection 3.09 hereof. To the extent that the aggregate amount Offered Price of the Notes and such other pari passu Indebtedness tendered pursuant to an Asset Sale the Offer is less than the Excess ProceedsNote Amount relating thereto or the aggregate amount of Pari Passu Indebtedness that is purchased is less than the Pari Passu Debt Amount (the amount of such shortfall, if any, constituting a "Deficiency"), the Company may shall use any remaining Excess Proceeds such Deficiency in the business of the Company and its Restricted Subsidiaries or for any other purpose not otherwise prohibited by permitted under the terms of this Indenture. If Upon completion of the aggregate principal amount purchase of all the Notes tendered pursuant to an Offer and such other pari passu repurchase of the Pari Passu Indebtedness surrendered by Holders thereof exceeds pursuant to a Pari Passu Offer, the amount of Excess Proceeds, the Trustee shall select the Notes and such other pari passu Indebtedness to be purchased on a pro rata basis. Upon completion of an Asset Sale Offerif any, the amount of Excess Proceeds shall be reset at zero. Such Excess Proceeds may be invested in Temporary Cash Investments or used to temporarily repay amounts outstanding under a revolving credit facility until they are applied as provided above. The Company shall be entitled to any interest or dividends accrued, earned or paid on such Temporary Cash Investments.
Appears in 1 contract
Asset Sales. The Within five Business Days after any Net Proceeds are received by or on behalf of the Company or any Restricted Subsidiary in respect of any Asset Sale, the Company shall notprepay the Term Loans in an aggregate amount equal to such Net Proceeds, and provided that a prepayment of the Term Loans shall be required pursuant to this Section 2.09(d)(ii) only to the extent that the aggregate Net Proceeds of all Asset Sales during the term of this Agreement not permit otherwise applied in the manner described in clause (B) or (C) of this proviso or applied to prepay the Term Loans is equal to or less than $15,000,000; (B) such Net Proceeds may be reinvested in the business of the Company or any of its Subsidiaries so long as, within 12 months after the receipt of such Net Proceeds, such reinvestment shall have been consummated or the Company or one or more of its Restricted Subsidiaries toshall have entered into a definitive agreement for such application, consummate an Asset Sale unless and such application shall have been consummated no later than 18 months after the receipt of such Net Proceeds, such reinvestment shall have been consummated (i) as certified by the Company in writing to the Agent); provided that on or prior to such Restricted Subsidiaryfifth Business Day after the receipt of such Net Proceeds, the Company shall have given written notice to the Agent of its intention to reinvest all or portion of such Net Proceeds in accordance with this Section 2.09(d)(ii)(B); and (C) any Net Proceeds not so applied by the conclusion of the 12th or 18th month, as the case may be, receives consideration at the time of such Asset Sale at least equal shall be immediately applied to the fair market value (evidenced by a resolution prepayment of the Board of Directors Term Loans as set forth in an Officers' Certificate delivered this Section 2.09(d)(ii). Notwithstanding anything herein to the Trustee) contrary, Net Proceeds in respect of the assets or Equity Interests issued or sold or otherwise disposed of and (ii) at least 75% of the consideration therefor an Asset Sale that are received by the Company or such Restricted a Foreign Subsidiary is in the form of cash or Cash Equivalents; provided that the amount of (a) any liabilities (as shown on the Company's or such Restricted Subsidiary's most recent balance sheet) of the Company or such Restricted Subsidiary (other than contingent liabilities and liabilities that are by their terms subordinated shall not be required to the Notes or any guarantee thereof) that are assumed by the transferee of any such assets be prepaid pursuant to a customary novation agreement that releases the Company or such Restricted Subsidiary from further liability, (bthis Section 2.09(d)(ii) any securities, notes or other obligations received by the Company or such Restricted Subsidiary from such transferee that are immediately converted by the Company or such Restricted Subsidiary into cash (to the extent of the cash received) and (c) escrowed cash that the Company reasonably believes will be released from escrow within 365 days from the date of consummation repatriation of such Asset SaleNet Proceeds to fund such prepayment (x) is prohibited, restricted or delayed by applicable law or (y) would result in each case shall be deemed to be cash for purposes of this provision. Notwithstanding the immediately preceding paragraph, the Company and its Restricted Subsidiaries will be permitted to consummate an Asset Sale without complying with such paragraph if (i) the Company or the applicable Restricted Subsidiary, as the case may be, receives consideration at the time of such Asset Sale at least equal to the fair market value of the assets or other property sold, issued or otherwise disposed of (as evidenced by a resolution of the Company's Board of Directors set forth in an Officers' Certificate delivered to the Trustee) and (ii) at least 75% of the consideration for such Asset Sale constitutes a controlling interest in a Permitted Business, long-term assets used or useful in a Permitted Business and/or cash or Cash Equivalentsmaterial adverse tax consequences; provided that any cash or Cash Equivalents received by the Company or any of its Restricted Subsidiaries in connection with any Asset Sale permitted to be consummated under this paragraph shall constitute Net Proceeds subject to the provisions of the next succeeding paragraph. Within 365 days of the receipt of any Net Proceeds from an Asset Sale, the Company may apply such Net Proceeds, at its option, (i) to repay Senior Debt under a Credit Facility (and to correspondingly reduce commitments with respect thereto in the case of revolving borrowingsthe foregoing clause (y) or (ii) to the acquisition that each of a controlling interest in a Permitted Business, the making of a capital expenditure or the acquisition of other long-term assets, in each case, used or useful in a Permitted Business. Pending the final application of any such Net Proceeds, the Company may temporarily reduce Senior Debt or otherwise invest and the applicable Foreign Subsidiary shall use commercially reasonable efforts to eliminate such Net Proceeds tax effects in any manner that is not prohibited by this Indenture. Any Net Proceeds from Asset Sales that are not applied or invested as provided its reasonable control in the first sentence of this paragraph shall be deemed to constitute "Excess Proceeds." When the aggregate amount of Excess Proceeds exceeds $10.0 million, the Company shall be required order to make an offer to all Holders of Notes and all holders of other pari passu Indebtedness containing provisions similar to those set forth in this Indenture with respect to offers to purchase or redeem such other pari passu Indebtedness with the proceeds of sales of assets (an "Asset Sale Offer") to purchase the maximum principal amount of Notes and such other pari passu Indebtedness that may be purchased out of the Excess Proceeds at an offer price in cash in an amount equal to 100% of the principal amount thereof, plus accrued and unpaid interest and Liquidated Damages, if any, thereon to the date of purchase, in accordance with the procedures set forth in this Indenture and in such other pari passu Indebtedness. To the extent that the aggregate amount of Notes and such other pari passu Indebtedness tendered pursuant to an Asset Sale Offer is less than the Excess Proceeds, the Company may use any remaining Excess Proceeds for any purpose not otherwise prohibited by this Indenture. If the aggregate principal amount of Notes and such other pari passu Indebtedness surrendered by Holders thereof exceeds the amount of Excess Proceeds, the Trustee shall select the Notes and such other pari passu Indebtedness to be purchased on a pro rata basis. Upon completion of an Asset Sale Offer, the amount of Excess Proceeds shall be reset at zeroprepayment.
Appears in 1 contract
Asset Sales. (a) The Company shall will not, and shall not neither Parent nor the Company will permit any of its the Restricted Subsidiaries to, directly or indirectly, consummate the sale, lease (except under an Internal Charter or a Drilling Contract), conveyance or other disposition of any Vessel or any right to a Vessel or a construction contract respecting the construction of a Vessel. In addition, the Company will not, and neither Parent nor the Company will permit any of the Restricted Subsidiaries to, directly or indirectly, consummate any other Asset Sale unless unless:
(i1) the Company or such the Restricted Subsidiary, as the case may be, receives consideration at the time of such the Asset Sale at least equal to the fair market value (evidenced by a resolution of the Board of Directors set forth in an Officers' Certificate delivered to the Trustee) Fair Market Value of the assets or Equity Interests issued or sold or otherwise disposed of and of; and
(ii2) at least 75% of the consideration therefor received in the Asset Sale by the Company or such Restricted Subsidiary is in the form of cash; provided, however, to the extent that any disposition in such Asset Sale was of Collateral, the non-cash or Cash Equivalents; provided that consideration received is pledged as Collateral under the amount Collateral Agreements contemporaneously with such sale, in accordance with the requirements set forth in this Indenture. For purposes of this Section 4.18, each of the following will be deemed to be cash:
(aA) any liabilities (liabilities, as shown on the Company's or such Restricted Subsidiary's ’s most recent consolidated balance sheet) , of the Company or such any Restricted Subsidiary (other than contingent liabilities and liabilities that are by their terms subordinated to the Notes or any guarantee thereofNote Guarantee) that are assumed by the transferee of any such assets pursuant to a customary novation agreement that releases so long as the Company or such Restricted Subsidiary are released from further liability, ;
(bB) any securities, notes Notes or other obligations received by the Company or any such Restricted Subsidiary from such transferee that are immediately contemporaneously, subject to ordinary settlement periods, converted by the Company or such Restricted Subsidiary into cash (cash, to the extent of the cash receivedreceived in that conversion; and
(C) any stock or assets of the kind referred to in clauses (2) or (4) of paragraph (b) of this Section 4.18. Any Asset Sale pursuant to an Involuntary Transfer shall not be required to satisfy the conditions set forth in clauses (1) and (c2) escrowed cash that the Company reasonably believes will be released from escrow within 365 days from the date of consummation of such Asset Sale, in each case shall be deemed to be cash for purposes of this provision. Notwithstanding Section 4.18(a).
(b) Within 360 days after the immediately preceding paragraph, the Company and its Restricted Subsidiaries will be permitted to consummate receipt of any Net Proceeds from an Asset Sale (including, without complying with such paragraph if (i) limitation, an Involuntary Transfer), the Company or the applicable Restricted Subsidiary, as the case may be, receives consideration at the time may apply such Net Proceeds:
(1) to repay Indebtedness, including Notes and permanent reductions of such Asset Sale at least equal Obligations under any Credit Agreement, but excluding repayment of revolving Obligations under any Credit Agreement;
(2) to the fair market value acquire all or substantially all of the assets of, or other property soldany Capital Stock of, issued or otherwise disposed of (as evidenced by a resolution another Permitted Business of the Company's Board , if, after giving effect to any such acquisition of Directors set forth in an Officers' Certificate delivered to the Trustee) and (ii) at least 75% of the consideration for Capital Stock, such Asset Sale constitutes a controlling interest in a Permitted Business, long-term assets used or useful in a Permitted Business and/or cash is or Cash Equivalents; provided that any cash or Cash Equivalents received by becomes a Restricted Subsidiary;
(3) to make a capital expenditure for the Company or any of its the Restricted Subsidiaries in connection with any Asset Sale permitted to be consummated under this paragraph shall constitute Net Proceeds subject to the provisions of the next succeeding paragraph. Within 365 days of the receipt of any Net Proceeds from an Asset Sale, the Company may apply such Net Proceeds, at its option, Subsidiaries; or
(i4) to repay Senior Debt acquire other assets that are not classified as current assets under a Credit Facility (GAAP and to correspondingly reduce commitments with respect thereto in the case of revolving borrowings) or (ii) to the acquisition of a controlling interest in a Permitted Business, the making of a capital expenditure or the acquisition of other long-term assets, in each case, that are used or useful in a the Company’s Permitted Business. Pending the final application of any such Net Proceeds, the Company may temporarily reduce Senior Debt or otherwise invest such the Net Proceeds in any manner that is not prohibited by this Indenture. cash and Cash Equivalents.
(c) Any Net Proceeds from Asset Sales that are not applied or invested as provided in the first sentence paragraph (b) of this paragraph shall be deemed to Section 4.18 will constitute "“Excess Proceeds." ” When the aggregate amount of Excess Proceeds exceeds $10.0 million, the Company shall be required to will, within five Business Days thereof, make an offer (the “Asset Sale Offer”) to all Holders of Notes and all holders of other Indebtedness that is pari passu Indebtedness with the Notes containing provisions similar to those set forth in this Indenture with respect to offers to purchase or redeem such other pari passu Indebtedness with the proceeds of sales of assets (an "Asset Sale Offer") to purchase the maximum principal amount of Notes and such other pari passu Indebtedness that may be purchased out of the Excess Proceeds at an Proceeds.
(d) The offer price in cash in an amount any Asset Sale Offer will be equal to 100% of the principal amount thereof, plus accrued and unpaid interest and Liquidated Damages, if any, thereon to the date of purchase, and will be payable in accordance with the procedures set forth in this Indenture and in such other pari passu Indebtedness. To the extent that the aggregate amount cash.
(e) If any Excess Proceeds remain after consummation of Notes and such other pari passu Indebtedness tendered pursuant to an Asset Sale Offer is less than the Excess ProceedsOffer, the Company may use any remaining those Excess Proceeds for any purpose not otherwise prohibited by this Indenture. Indenture and the Collateral Agreements; provided that pending any such application, the proceeds of the Asset Sale, whether assets, property or cash, are subject to a Lien under the Collateral Agreements.
(f) If the aggregate principal amount of Notes and such other pari passu Indebtedness surrendered by Holders thereof tendered into such Asset Sale Offer exceeds the amount of Excess Proceeds, the Trustee shall will select the Notes and the Company shall select such other pari passu Indebtedness to be purchased on a pro rata basis, provided that applicable denominations of the Notes are preserved. Upon completion of an each Asset Sale Offer, the amount of Excess Proceeds shall will be reset at zero. The Company will not, and neither Parent nor the Company will permit any Restricted Subsidiary to, enter into or suffer to exist any agreement that would place any restriction of any kind (other than pursuant to law or regulation) on the ability of the Company to make an Asset Sale Offer. The Company will comply with the requirements of Rule 14e-1 under the Exchange Act and any other securities laws and regulations thereunder to the extent those laws and regulations are applicable in connection with each repurchase of Notes pursuant to an Asset Sale Offer. To the extent that the provisions of any securities laws or regulations conflict with the Asset Sale provisions of this Indenture, the Company will comply with the applicable securities laws and regulations and will not be deemed to have breached its obligations under the Asset Sale provisions of this Indenture by virtue of such compliance.
Appears in 1 contract
Sources: Indenture (Vantage Drilling CO)
Asset Sales. (a) The Company shall not, and shall not permit any of its Restricted Subsidiaries Subsidiary to, consummate consummate, directly or indirectly, an Asset Sale unless Sale, unless:
(i1) 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 as determined in good faith by a resolution the Company at the time of the Board of Directors set forth in an Officers' Certificate delivered contractually agreeing to the Trusteesuch sale) of the assets or Equity Interests issued or sold or otherwise disposed of and of; and
(ii2) at least 75% of the consideration therefor received by the Company or such Restricted Subsidiary is except in the form case of cash or Cash Equivalents; provided that the amount of (a) any liabilities (as shown on the Company's or such Restricted Subsidiary's most recent balance sheet) of the Company or such Restricted Subsidiary (other than contingent liabilities and liabilities that are by their terms subordinated to the Notes or any guarantee thereof) that are assumed by the transferee of any such assets pursuant to a customary novation agreement that releases the Company or such Restricted Subsidiary from further liabilityPermitted Asset Swap, (b) any securities, notes or other obligations received by the Company or such Restricted Subsidiary from such transferee that are immediately converted by the Company or such Restricted Subsidiary into cash (to the extent of the cash received) and (c) escrowed cash that the Company reasonably believes will be released from escrow within 365 days from the date of consummation of such Asset Sale, in each case shall be deemed to be cash for purposes of this provision. Notwithstanding the immediately preceding paragraph, the Company and its Restricted Subsidiaries will be permitted to consummate an Asset Sale without complying with such paragraph if (i) the Company or the applicable Restricted Subsidiary, as the case may be, receives consideration at the time of such Asset Sale at least equal to the fair market value of the assets or other property sold, issued or otherwise disposed of (as evidenced by a resolution of the Company's Board of Directors set forth in an Officers' Certificate delivered to the Trustee) and (ii) at least 75% of the consideration for such Asset Sale constitutes Sale, together with all other Asset Sales since the Effective Date (on a controlling interest in a Permitted Businesscumulative basis), long-term assets used or useful in a Permitted Business and/or cash or Cash Equivalents; provided that any cash or Cash Equivalents received by the Company or any of its and the Restricted Subsidiaries is in connection with the form of Cash Equivalents.
(b) Within 540 days after the later of (x) the date of any Asset Sale permitted to be consummated under this paragraph shall constitute Net Proceeds subject to the provisions of the next succeeding paragraph. Within 365 days of and (y) the receipt of any Net Proceeds from an of any Asset Sale, the Company may apply or such Net ProceedsRestricted Subsidiary, at its option, may apply the Net Proceeds from such Asset Sale,
(i1) to repay permanently reduce:
(A) Obligations under the Senior Debt Credit Agreement, and to correspondingly reduce commitments with respect thereto;
(B) Obligations under Senior Indebtedness of the Company or a Credit Facility Guarantor that is secured by a Lien, which Lien is permitted by this Indenture, and to correspondingly reduce commitments with respect thereto;
(C) Obligations under other Senior Indebtedness (and to correspondingly reduce commitments with respect thereto thereto); provided that, in the case of revolving borrowingsthis clause (C), the Company shall equally and ratably reduce Obligations under the Notes on a pro rata basis as provided under Section 3.07, through open-market purchases (to the extent such purchases are at or above 100% of the principal amount thereof) or by making an offer (iiin accordance with the procedures set forth below for an Asset Sale Offer) to all Holders to purchase their Notes, on a ratable basis with such other Senior Indebtedness, for no less than 100% of the principal amount thereof, plus the amount of accrued but unpaid interest, if any, on the amount of Notes that would otherwise be repurchased (which offer shall be deemed an Asset Sale Offer for purposes of this Indenture); or
(D) Indebtedness of a Restricted Subsidiary that is not a Guarantor, other than Indebtedness owed to the Company or another Restricted Subsidiary;
(2) to make (A) an Investment in any one or more businesses; provided that such Investment in any business is in the form of the acquisition of Capital Stock and results in the Company or a controlling interest in Restricted Subsidiary, as the case may be, owning an amount of the Capital Stock of such business such that it constitutes or continues to constitute a Permitted BusinessRestricted Subsidiary, the making of a (B) capital expenditure expenditures or the acquisition (C) acquisitions of other long-term assetsassets that are, in each caseof (A), (B) and (C), either (i) are used or useful in a Permitted Business. Pending Similar Business or (ii) replace in whole or in part the final businesses or assets that are the subject of such Asset Sale; or
(3) any combination of the foregoing; provided that, in the case of Section 4.10(b)(2), a binding commitment shall be treated as a permitted application of the Net Proceeds from the date of such commitment so long as the Company or such Restricted Subsidiary enters into such commitment with the good faith expectation that such Net Proceeds shall be applied to satisfy such commitment within the later of (x) 180 days of such commitment and (y) 540 days after the date of the applicable Asset Sale (an “Acceptable Commitment”) and, in the event any Acceptable Commitment is later cancelled or terminated for any reason before the Net Proceeds are applied in connection therewith, then such Net Proceeds shall constitute Excess Proceeds.
(c) Notwithstanding the foregoing, to the extent that any of or all the Net Proceeds of any Asset Sales by a non-Guarantor would have a material adverse tax consequence (taking into account any foreign tax credit or benefit actually realized in connection with such repatriation) or is prohibited or subject to limitation by applicable local law, order, decree or determination of any arbitrator, court or governmental authority from being repatriated to the United States or distributed to the Company or any Guarantor, the portion of such Net Proceeds so affected will not be required to be applied in compliance with this covenant, and such amounts may be retained by the applicable non-Guarantor so long, but only so long, as applicable, as such material adverse tax consequence exists or the applicable local law will not permit repatriation to the United States or distribution to the Company or any Guarantor (the Company hereby agreeing to use reasonable efforts to cause the applicable non-Guarantor to take all actions reasonably required by the applicable local law, applicable organizational impediments or other impediment to permit such repatriation or distribution), and if such repatriation of any of such affected Net Proceeds, as applicable, no longer has material adverse tax consequences or is permitted under the Company may temporarily reduce Senior Debt or otherwise invest applicable local law, such repatriation will be promptly effected and such repatriated Net Proceeds will be applied (whether or not repatriation actually occurs) in any manner that is not prohibited by compliance with this Indenture. Section 4.10.
(d) Any Net Proceeds from an Asset Sales Sale that are not invested or applied or invested as provided and within the time period set forth in the first sentence of this paragraph Section 4.10(b) shall be deemed to constitute "“Excess Proceeds." ” When the aggregate amount of Excess Proceeds exceeds an aggregate of $10.0 million40,000,000 in any fiscal year (the “Excess Proceeds Threshold”), the Company shall be required to make an offer to all Holders and, if and to the extent required by the terms of any Indebtedness that is pari passu in right of payment with the Notes and all (“Pari Passu Indebtedness”), to the holders of other pari passu such Pari Passu Indebtedness containing provisions similar to those set forth in this Indenture with respect to offers to purchase or redeem such other pari passu Indebtedness with the proceeds of sales of assets (an "“Asset Sale Offer") ”), to purchase the maximum aggregate principal amount (or accreted value, as applicable) of the Notes and such other pari passu Pari Passu Indebtedness that is equal to the applicable authorized denominations thereof that may be purchased out in the amount equal to the sum of the Excess Proceeds (the “Excess Proceeds Payment Amounts”) at an offer price in cash in an amount equal to 100% of the principal amount or accreted value thereof, plus accrued and unpaid interest and Liquidated Damagesinterest, if any, thereon to but excluding the date fixed for the closing of purchasesuch offer, in accordance with the procedures set forth in this Indenture and in such and, if applicable, the other pari passu documents governing the applicable Pari Passu Indebtedness. To the extent that the aggregate amount of Notes and such other pari passu Indebtedness tendered pursuant to The Company shall commence an Asset Sale Offer is less than with respect to Excess Proceeds within fifteen (15) Business Days after the date that Excess Proceeds exceed the Excess ProceedsProceeds Threshold by sending the notice required pursuant to Section 3.09, with a copy to the Trustee. The Company may use any remaining Excess satisfy the foregoing obligation with respect to such Net Proceeds for any purpose not otherwise prohibited by this Indenture. If the aggregate principal amount of Notes and such other pari passu Indebtedness surrendered by Holders thereof exceeds the amount of Excess Proceeds, the Trustee shall select the Notes and such other pari passu Indebtedness to be purchased on a pro rata basis. Upon completion of from an Asset Sale by making an Asset Sale Offer with respect to all or a portion of the available Net Proceeds (the “Advance Portion”) in advance of being required to do so by this Indenture (the “Advance Offer, the amount of Excess Proceeds shall be reset at zero”).
Appears in 1 contract
Sources: Indenture (MultiPlan Corp)
Asset Sales. The (a) No Guarantor will, and the Company shall not, and shall cause the Guarantors not permit any of its Restricted Subsidiaries to, consummate an Asset Sale unless (i) the Company in a single transaction or such Restricted Subsidiarya series of related transactions, as the case may besell, receives consideration at the time of such Asset Sale at least equal to the fair market value (evidenced by a resolution of the Board of Directors set forth in an Officers' Certificate delivered to the Trustee) of the assets or Equity Interests issued or sold lease, assign, transfer, convey or otherwise disposed dispose of and any Collateral owned by such Guarantor (ii) at least 75% of including through the consideration therefor received sale by the Company or such Restricted Subsidiary is in its Subsidiaries of the form Equity Interests of cash or Cash Equivalentsany Guarantor) (each of the forgoing, an “Asset Sale”); provided that the amount of following shall not be deemed an Asset Sale:
(a1) any liabilities (as shown on the Company's sale, lease, assignment, transfer, conveyance or such Restricted Subsidiary's most recent balance sheet) of the Company or such Restricted Subsidiary (other than contingent liabilities and liabilities that are by their terms subordinated to the Notes or any guarantee thereof) that are assumed by the transferee disposition of any such assets pursuant to a customary novation agreement that releases the Company or such Restricted Subsidiary from further liability, (b) any securities, notes or other obligations received by the Company or such Restricted Subsidiary from such transferee that are immediately converted by the Company or such Restricted Subsidiary into cash (to the extent of the cash received) and (c) escrowed cash that the Company reasonably believes will be released from escrow within 365 days from the date of consummation of such Asset Sale, in each case shall be deemed to be cash for purposes of this provision. Notwithstanding the immediately preceding paragraph, the Company and its Restricted Subsidiaries will be permitted to consummate an Asset Sale without complying with such paragraph if (i) the Company or the applicable Restricted Subsidiary, as the case may be, receives consideration Collateral at the time of such Asset Sale at least equal to no less than the fair market value of the assets such Collateral for cash or Cash Equivalents, so long as, on a pro forma basis for such sale, lease, conveyance or other property disposition, the First Lien LTV Ratio is not greater than 0.375 to 1.00; provided that the Appraised Value of the Collateral sold, issued leased, transferred or otherwise disposed of pursuant to this sub-clause (as evidenced by a resolution 1) shall not exceed $9.5 billion in the aggregate (with the aggregate value of such Collateral for purposes of calculating utilization of this basket being determined pursuant to the definition “Appraised Value” at the time of consummation thereof without giving any effect to subsequent changes in value of the Company's Board applicable assets) and; provided, further, that no such sale, lease, assignment, transfer conveyance or other disposition shall be made to any Affiliate of Directors such Guarantor other than another Guarantor or a Spectrum Joint Venture; provided, further, that any sale, assignment, transfer, conveyance or disposal of any Collateral to a Spectrum Joint Venture (a) shall be made at no less than the Appraised Value of such Collateral for cash and (b) any Net Proceeds or Specified Net Proceeds resulting therefrom shall be applied as set forth in an Officers' Certificate delivered to under this Section 4.09;
(2) the Trustee) and (ii) at least 75% sale, lease, assignment, transfer, conveyance or other disposition of any Collateral between or among the consideration for such Asset Sale constitutes a controlling interest in a Permitted Business, long-term assets used or useful in a Permitted Business and/or cash or Cash EquivalentsGuarantors; provided that the applicable Guarantor receiving Collateral shall have concurrently therewith executed any cash and all documents, financing statements, agreements and instruments, and taken all further action that may be required under applicable law (to the extent required under this EchoStar Exchange Notes Indenture and/or the Security Documents), in order to grant and perfect a first-priority Lien in such Collateral for the benefit of the Holders;
(3) a disposition resulting from any condemnation or Cash Equivalents received by other taking, or temporary or permanent requisition of, any property or asset, any interest therein or right appurtenant thereto, in each case, as the Company result of the exercise of any right of condemnation or eminent domain, including any sale or other transfer to a governmental authority in lieu of, or in anticipation of, any of its Restricted Subsidiaries in connection with the foregoing events; and
(4) any Permitted Asset Sale permitted to be consummated under this paragraph shall constitute Net Proceeds subject to the provisions of the next succeeding paragraph. Swap.
(b) Within 365 45 days of the after receipt of any Net Proceeds from an Asset Saleor, the Company may apply such Specified Net Proceeds, at its optionas applicable, such Guarantor shall:
(i1) to repay so long as any aggregate principal amount of the New Senior Debt under a Credit Facility (and to correspondingly reduce commitments with respect thereto in Spectrum Secured Notes remain outstanding, apply the case Required Amount of revolving borrowings) or (ii) to the acquisition of a controlling interest in a Permitted Business, the making of a capital expenditure or the acquisition of other long-term assets, in each case, used or useful in a Permitted Business. Pending the final application of any such Net Proceeds, the Company may temporarily reduce Senior Debt or otherwise invest such Net Proceeds in any manner that is not prohibited by this Indenture. Any and Specified Net Proceeds from Asset Sales to redeem New Senior Spectrum Secured Notes; provided that are not applied or invested as provided in the first sentence of this paragraph shall be deemed to constitute "Excess Proceeds." When the aggregate amount of Excess Proceeds exceeds $10.0 million, the Company shall be required redeem New Senior Spectrum Secured Notes in the following order:
(A) first, up to make an offer to all Holders of Notes and all holders of other pari passu Indebtedness containing provisions similar to those set forth $1.5 billion in this Indenture with respect to offers to purchase or redeem such other pari passu Indebtedness with the proceeds of sales of assets (an "Asset Sale Offer") to purchase the maximum aggregate principal amount of the New Senior Spectrum Secured Notes and such other pari passu Indebtedness that may be purchased out of the Excess Proceeds at an offer a redemption price in cash in an amount equal not to 100exceed 103% of the principal amount thereof, plus accrued and unpaid interest and Liquidated Damages, if any, thereon to the date of purchase, in accordance with the procedures New Senior Spectrum Secured Notes Indenture,
(B) second, up to $500 million in aggregate principal amount of the New Senior Spectrum Secured Notes at a redemption price not to exceed 105% plus accrued and unpaid interest in accordance with the New Senior Spectrum Secured Notes Indenture; and
(C) third, New Senior Spectrum Secured Notes at a redemption price not to exceed (A) during the period prior to the date that is two years after the Issue Date, par plus 60% of the make-whole premium that would be payable pursuant to the make-whole optional redemption provisions under the New Senior Spectrum Secured Notes or (B) thereafter, the then-applicable redemption price specified in the New Senior Spectrum Secured Notes Indenture as in effect on the Issue Date; or
(2) apply the Required Amount of such Net Proceeds and Specified Net Proceeds to redeem EchoStar Exchange Notes pursuant to Section 3.07(c); or
(3) any combination of the foregoing. Any Net Proceeds or Specified Net Proceeds that are not required to be applied as set forth in this Indenture and in such other pari passu Indebtedness. To the extent that the aggregate amount of Notes and such other pari passu Indebtedness tendered pursuant to an Asset Sale Offer is less than the Excess Proceeds, the Company above may use any remaining Excess Proceeds be used for any purpose not otherwise prohibited by this EchoStar Exchange Notes Indenture. If , subject to the aggregate principal amount of other covenants contained in this EchoStar Exchange Notes and such other pari passu Indebtedness surrendered by Holders thereof exceeds the amount of Excess Proceeds, the Trustee shall select the Notes and such other pari passu Indebtedness to be purchased on a pro rata basis. Upon completion of an Asset Sale Offer, the amount of Excess Proceeds shall be reset at zeroIndenture.
Appears in 1 contract
Sources: Echostar Exchange Notes Indenture (SNR Wireless LicenseCo, LLC)
Asset Sales. (a) The Company shall not, and shall not permit any of its Restricted Subsidiaries Subsidiary to, consummate an Asset Sale unless unless:
(i1) the Company Company, or such the Restricted Subsidiary, as the case may be, receives consideration at the time of such the Asset Sale at least equal to the fair market value (evidenced by a resolution of the Board of Directors set forth in an Officers' Certificate delivered to the Trustee) Fair Market Value of the assets or Equity Interests issued or sold or otherwise disposed of and of; and
(ii2) at least 75% of the consideration therefor received in such Asset Sale by the Company or such Restricted Subsidiary is in the form of cash or cash, Cash Equivalents; provided that , Replacement Assets or a combination thereof. For purposes of this clause (3), each of the amount of following shall be deemed to be cash:
(a) any liabilities (Indebtedness or other liabilities, as shown on the Company's ’s or such Restricted Subsidiary's ’s most recent balance sheet) , of the Company or such any Restricted Subsidiary (other than contingent liabilities and liabilities Indebtedness that are by their terms subordinated to the Notes or any guarantee thereof) Notes), that are assumed by the transferee of any such assets pursuant to a customary novation written agreement that releases the Company or such Restricted Subsidiary from further liability, liability with respect to such Indebtedness or liabilities; and
(b) any securities, notes or other obligations received by the Company or any such Restricted Subsidiary from such transferee that are immediately converted within 90 days of the applicable Asset Sale by the Company or such Restricted Subsidiary into cash (cash, to the extent of the cash receivedreceived in such conversion.
(b) and [Reserved].
(c) escrowed cash that the Company reasonably believes will be released from escrow within 365 days from the date of consummation of such Asset Sale, in each case shall be deemed to be cash for purposes of this provision. Notwithstanding the immediately preceding paragraph, the Company and its Restricted Subsidiaries will be permitted to consummate an Asset Sale without complying with such paragraph if (i) the Company or the applicable Restricted Subsidiary, as the case may be, receives consideration at the time of such Asset Sale at least equal to the fair market value of the assets or other property sold, issued or otherwise disposed of (as evidenced by a resolution of the Company's Board of Directors set forth in an Officers' Certificate delivered to the Trustee) and (ii) at least 75% of the consideration for such Asset Sale constitutes a controlling interest in a Permitted Business, long-term assets used or useful in a Permitted Business and/or cash or Cash Equivalents; provided that any cash or Cash Equivalents received by the Company or any of its Restricted Subsidiaries in connection with any Asset Sale permitted to be consummated under this paragraph shall constitute Net Proceeds subject to the provisions of the next succeeding paragraph. Within 365 days of after the receipt of any Net Proceeds from an Asset Sale, the Company or any of its Restricted Subsidiaries may apply such those Net Proceeds, Proceeds at its option, :
(i1) (a) to permanently repay Senior Debt under a Credit Facility (and or reduce Indebtedness, other than Subordinated Indebtedness, of the Company and, if the Indebtedness repaid is revolving credit Indebtedness, to correspondingly reduce commitments with respect thereto in the case of revolving borrowings) thereto; or (iib) to permanently repay or reduce Indebtedness of any of the acquisition Company’s Restricted Subsidiaries;
(2) to acquire, or enter into a binding agreement to acquire, all or substantially all of a controlling interest the assets (other than cash, Cash Equivalents and securities) of any Person engaged in a Permitted Business; provided, however, that any such commitment shall be subject only to customary conditions (other than financing), and such acquisition shall be consummated no later than 180 days after the end of such 365-day period;
(3) to acquire, or enter into a binding agreement to acquire, Voting Stock of a Person engaged in a Permitted Business from a Person that is not a Subsidiary of the Company; provided, however, that such commitment shall be subject only to customary conditions (other than financing) and such acquisition shall be consummated no later than 180 days after the end of such 365-day period; and provided, further, however, that (a) if the Net Proceeds are from the sale of assets of the Company or any of its Restricted Subsidiaries or the Equity Interests of any of its Restricted Subsidiaries, after giving effect thereto, the making Person so acquired becomes a Restricted Subsidiary and (b) such acquisition is otherwise made in accordance with this Indenture, including, without limitation, Section 4.10 hereof;
(4) to acquire, or enter into a binding agreement to acquire, previously issued and outstanding Voting Stock of a non-Wholly Owned Restricted Subsidiary of the Company (a) from a Person that is not an Affiliate of the Company or (b) in a brokered transaction through the facilities of a stock exchange; provided, however, that such commitment shall be subject only to customary conditions (other than financing) and such acquisition shall be consummated no later than 180 days after the end of such 365-day period;
(5) to make capital expenditure expenditures; or
(6) to acquire, or the acquisition of enter into a binding agreement to acquire, other long-term assets, in each case, assets (other than securities) that are used or useful in a Permitted Business; provided, however, that such commitment shall be subject only to customary conditions (other than financing) and such acquisition shall be consummated no later than 180 days after the end of such 365-day period. Pending the final application of any such Net Proceeds, the Company may temporarily reduce Senior Debt revolving credit borrowings or otherwise invest such the Net Proceeds in any manner that is not prohibited by this Indenture. .
(d) Any Net Proceeds from Asset Sales that are not applied or invested as provided in the first sentence of this paragraph (c) above shall be deemed to constitute "“Excess Proceeds." ”
(e) When the aggregate amount of Excess Proceeds exceeds $10.0 Cdn$100.0 million, the Company shall be required to make an offer (an “Asset Sale Offer”) to all Holders of Notes and all holders of other Indebtedness that is pari passu Indebtedness in right of payment with the Notes containing provisions similar to those set forth in this Indenture with respect to offers to purchase or redeem such other pari passu Indebtedness with the proceeds of sales of assets (an "Asset Sale Offer") assets, to purchase the maximum principal amount of Notes and such other pari passu Indebtedness that may be purchased out of the Excess Proceeds at an offer price in cash in an amount equal to 100% of the principal amount thereof, plus accrued and unpaid interest and Liquidated Damages, if any, thereon to the date of purchase, in accordance with the procedures set forth in this Indenture and Section 3.09 hereof. The offer price in such other pari passu Indebtedness. To the extent that the aggregate any Asset Sale Offer shall be equal to 100% of principal amount of the Notes and such other pari passu Indebtedness tendered pursuant Indebtedness, plus accrued and unpaid interest to the date of purchase, and shall be payable in cash. If any Excess Proceeds remain after consummation of an Asset Sale Offer is less than and all Holders of Notes have been given the Excess Proceedsopportunity to tender their Notes for purchase in accordance with such Asset Sale Offer and this Indenture, the Company may use any remaining such Excess Proceeds for any purpose not otherwise prohibited by this Indenture. If the aggregate principal amount of Notes and such other pari passu Indebtedness surrendered by Holders thereof tendered into such Asset Sale Offer exceeds the amount of Excess Proceeds, the Trustee shall select the Notes and such other pari passu Indebtedness to shall be purchased on a pro rata basisbasis based on the principal amount of Notes and such other pari passu Indebtedness tendered. Upon completion of an each Asset Sale Offer, the amount of Excess Proceeds shall be reset at zero. The Company shall comply with the requirements of Rule 14e-1 under the Exchange Act and any other applicable securities laws and regulations to the extent such laws and regulations are applicable in connection with each repurchase of Notes pursuant to an Asset Sale Offer. To the extent that the provisions of any securities laws or regulations conflict with the Asset Sales provisions of this Indenture, the Company shall comply with the applicable securities laws and regulations and shall be deemed not to have breached its obligations under the Asset Sale provisions of this Indenture by virtue of such conflict.
Appears in 1 contract
Sources: Indenture (Quebecor Media Inc)
Asset Sales. The Company shall not, and shall not permit any of its Restricted Subsidiaries to, consummate an Asset Sale unless (i) the Company or such the Restricted Subsidiary, as the case may be, receives consideration at the time of such Asset Sale at least equal to the fair market value (evidenced by an Officers' Certificate delivered to the Trustee which will include a resolution of the Board of Directors set forth with respect to such fair market value in an Officers' Certificate delivered to the Trusteeevent such Asset Sale involves aggregate consideration in excess of $10.0 million) of the assets or Equity Interests issued or sold or otherwise disposed of and (ii) at least 7580% of the consideration therefor received by the Company or such Restricted Subsidiary is in Subsidiary, as the form case may be, consists of cash or cash, Cash EquivalentsEquivalents and/or Marketable Securities; provided provided, however, that (A) the amount of (a) any liabilities (as shown on the Company's or such Restricted Subsidiary's most recent balance sheet) Senior Debt of the Company or such Restricted Subsidiary (other than contingent liabilities and liabilities that are by their terms subordinated to the Notes or any guarantee thereof) that are is assumed by the transferee of in any such assets pursuant to a customary novation agreement that releases the Company or such Restricted Subsidiary from further liability, transaction and (bB) any securities, notes or other obligations consideration received by the Company or such Restricted Subsidiary from such transferee Subsidiary, as the case may be, that consists of (1) all or substantially all of the assets of one or more Similar Businesses, (2) other long-term assets that are immediately converted by the Company used or such Restricted Subsidiary into cash (to the extent of the cash received) useful in one or more Similar Businesses and (c3) escrowed cash that the Company reasonably believes will be released from escrow within 365 days from the date of consummation of such Asset Sale, in each case Permitted Securities shall be deemed to be cash for purposes of this provision. Notwithstanding the immediately preceding paragraph, the Company and its Restricted Subsidiaries will be permitted to consummate an Asset Sale without complying with such paragraph if (i) the Company or the applicable Restricted Subsidiary, as the case may be, receives consideration at the time of such Asset Sale at least equal to the fair market value of the assets or other property sold, issued or otherwise disposed of (as evidenced by a resolution of the Company's Board of Directors set forth in an Officers' Certificate delivered to the Trustee) and (ii) at least 75% of the consideration for such Asset Sale constitutes a controlling interest in a Permitted Business, long-term assets used or useful in a Permitted Business and/or cash or Cash Equivalents; provided that any cash or Cash Equivalents received by the Company or any of its Restricted Subsidiaries in connection with any Asset Sale permitted to be consummated under this paragraph shall constitute Net Proceeds subject to the provisions of the next succeeding paragraph. Within 365 days of after the receipt of any Net Proceeds from an Asset Sale, the Company may apply such Net Proceeds, at its option, (i) to repay Senior Debt Indebtedness under a Credit Facility (and to correspondingly reduce commitments with respect thereto in the case of revolving borrowings) or Facility, (ii) to the acquisition of a controlling interest in a Permitted BusinessSecurities, (iii) to the acquisition of all or substantially all of the assets of one or more Similar Businesses, (iv) to the making of a capital expenditure or (v) to the acquisition of other long-term assets, in each case, used or useful assets in a Permitted Similar Business. Pending the final application of any such Net Proceeds, the Company may temporarily reduce Senior Debt Indebtedness under a Credit Facility or otherwise invest such Net Proceeds in any manner that is not prohibited by this Indenture. Any Net Proceeds from Asset Sales that are not applied or invested as provided in the first sentence of this paragraph shall be deemed to constitute "Excess Proceeds." ". When the aggregate amount of Excess Proceeds exceeds $10.0 million, the Company shall be required to make an offer to all Holders of Notes and all holders of other pari passu Indebtedness containing provisions similar to those set forth in this Indenture with respect to offers to purchase or redeem such other pari passu Indebtedness with the proceeds of sales of assets 1997 Notes (an "Asset Sale Offer") to purchase the maximum principal amount of 1997 Notes and such other pari passu Indebtedness that may be purchased out of the Excess Proceeds Proceeds, at an offer price in cash in an amount equal to 100% of the principal amount thereof, thereof plus accrued and unpaid interest to the date of purchase, in accordance with the procedures set forth in the 1997 Indenture. To the extent that (i) there are no outstanding 1997 Notes at the time an Asset Sale Offer is required to be made or (ii) the aggregate amount of 1997 Notes tendered pursuant to an Asset Sale Offer is less than the remaining Excess Proceeds ("Remaining Excess Proceeds") and Liquidated Damagesthe sum of (A) such amount of Remaining Excess Proceeds and (B) the Remaining Excess Proceeds from any subsequent Asset Sale Offers exceeds $10.0 million, the Company will be required to make an offer to all Holders of Notes and any other Indebtedness that ranks pari passu with the Notes (including, without limitation, the May 1998 Notes and the December 1998 Notes) that, by its terms, requires the Company to offer to repurchase such Indebtedness with such Excess Proceeds or Remaining Excess Proceeds, as the case may be (a "Secondary Asset Sale Offer"), to purchase the maximum principal amount of Notes and pari passu Indebtedness that may be purchased out of such Excess Proceeds or Remaining Excess Proceeds, as the case may be, at an offer price in cash in an amount equal to 100% of the principal amount thereof plus accrued and unpaid interest thereon, if any, thereon to the date of purchase, in accordance with the procedures set forth in this Indenture and in such other pari passu IndebtednessIndenture. To the extent that the aggregate amount of Notes and such other or pari passu Indebtedness tendered pursuant to an a Secondary Asset Sale Offer is less than the Excess Proceeds or Remaining Excess Proceeds, as the case may be, the Company may use any remaining Excess Proceeds or Remaining Excess Proceeds, as the case may be, for any purpose not otherwise prohibited by this Indenturegeneral corporate purposes. If the aggregate principal amount of Notes and such other or pari passu Indebtedness surrendered by Holders thereof exceeds the amount of Excess Proceeds or Remaining Excess Proceeds, as the case may be, in a Secondary Asset Sale Offer, the Company shall repurchase such Indebtedness on a pro rata basis and the Trustee shall select the Notes and such other pari passu Indebtedness to be purchased on a pro rata basis. Upon completion of an Asset Sale Offersuch offer to purchase, the amount of Excess Proceeds shall be reset at zero.
Appears in 1 contract
Sources: Indenture (Eer Systems Inc)
Asset Sales. (a) The Company shall will not, and shall will not permit any of its Restricted Subsidiaries to, consummate an make any Asset Sale unless of Collateral unless:
(i1) The Company or such Restricted Subsidiary receives consideration (including by way of relief from, or by way of 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 date of the definitive agreement with respect to such Asset Sale) of the Collateral subject to such Asset Sale;
(2) at least 75% of the consideration from such Asset Sale received by the Company or such Restricted Subsidiary, as the case may be, receives is in the form of (A) cash, (B) Cash Equivalents, (C) Additional Assets of a type which would constitute (x) Notes Priority Collateral, in the case of an Asset Sale of Notes Priority Collateral, or (y) ABL Priority Collateral, in the case of an Asset Sale of ABL Priority Collateral (which in both cases are thereupon with their acquisition added to the Collateral securing the Notes), or (D) any combination of the foregoing; and
(3) to the extent that any consideration at the time of from such Asset Sale at least equal to the fair market value (evidenced by a resolution of the Board of Directors set forth in an Officers' Certificate delivered to the Trustee) of the assets or Equity Interests issued or sold or otherwise disposed of and (ii) at least 75% of the consideration therefor Sales received by the Company or such Restricted Subsidiary is in the form of cash or Cash Equivalents; provided that the amount of (a) any liabilities (as shown on the Company's or such Restricted Subsidiary's most recent balance sheet) of the Company or such Restricted Subsidiary (other than contingent liabilities and liabilities that are by their terms subordinated to the Notes or any guarantee thereof) that are assumed by the transferee of any such assets pursuant to a customary novation agreement that releases the Company or such Restricted Subsidiary from further liability, (b) any securities, notes or other obligations received by the Company or such Restricted Subsidiary from such transferee that are immediately converted by the Company or such Restricted Subsidiary into cash (to the extent of the cash received) and (c) escrowed cash that the Company reasonably believes will be released from escrow within 365 days from the date of consummation of such Asset Sale, in each case shall be deemed to be cash for purposes of this provision. Notwithstanding the immediately preceding paragraph, the Company and its Restricted Subsidiaries will be permitted to consummate an Asset Sale without complying with such paragraph if (i) the Company or the applicable Restricted Subsidiary, as the case may be, receives consideration at constitutes securities or other assets that are of a type or class that constitute Collateral, such securities or other assets, including the time assets of any Person that becomes a Guarantor as a result of such transaction, are concurrently with their acquisition added to the Collateral securing the Notes (as Notes Priority Collateral or ABL Priority Collateral, as applicable) in the manner provided for herein or in any of the Security Documents. In the case of any Asset Sale of Collateral pursuant to a condemnation, seizure, appropriation or similar taking, including by deed in lieu of condemnation, or any actual or constructive total loss or an agreed or compromised total loss, such Asset Sale shall not be required to satisfy the requirements of clause (1) or (2) above. If 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 Company's Board of Directors set forth in an Officers' Certificate delivered to the Trustee) and (ii) at least 75% of the any time any non-cash consideration for such Asset Sale constitutes a controlling interest in a Permitted Business, long-term assets used or useful in a Permitted Business and/or cash or Cash Equivalents; provided that any cash or Cash Equivalents received by the Company or any of its Restricted Subsidiaries Subsidiary, as the case may be, in connection with any Asset Sale permitted of Collateral is repaid or converted into or sold or otherwise disposed of for cash (other than interest received with respect to any such non-cash consideration), then the date of such repayment, conversion or disposition shall be consummated under this paragraph shall deemed to constitute the date of an Asset Sale hereunder and the Net Proceeds subject thereof shall be applied in accordance with this covenant. Subject to the provisions terms of the next succeeding paragraph. Within ABL Intercreditor Agreement, within 365 days of the receipt date of such Asset Sale of Collateral, the Company or any Restricted Subsidiary, as the case may be, may (1) use any Net Proceeds received from Asset Sales of ABL Priority Collateral to repay, redeem, retire, defease, replace, refinance or repurchase any ABL Obligations, (2) use any Net Proceeds received from Asset Sales of Notes Priority Collateral to repay, redeem, retire, defease, replace, refinance or repurchase Secured Obligations; provided that if the Company or a Restricted Subsidiary repays, redeems or repurchases any Secured Obligations other than the Notes, the Company or such Restricted Subsidiary must equally and ratably redeem or repurchase (or offer to repurchase) the Notes, at the Company’s option, as provided for under Section 3.07 through open market purchases (to the extent such purchases are at a purchase price at or above 100% of the principal amount thereof plus accrued and unpaid interest, if any) or by making an offer to all Holders to purchase their Notes at 100% of the principal amount thereof, plus accrued and unpaid interest (and such offer shall be deemed for purposes of this covenant to be a use of proceeds from an Asset SaleSale equal to the aggregate amount of Net Proceeds offered to the Holders, whether or not the Company may apply such offer is accepted by any or all Holders), or (3) invest any Net ProceedsProceeds received from Asset Sales of Collateral in Additional Assets that would constitute (x) Notes Priority Collateral, at its option, (i) to repay Senior Debt under a Credit Facility (and to correspondingly reduce commitments with respect thereto in the case of revolving borrowingsan Asset Sale of Notes Priority Collateral, and (y) ABL Priority Collateral or (ii) Notes Priority Collateral, in the case of an Asset Sale of ABL Priority Collateral, which Additional Assets are thereupon with their acquisition added to the acquisition Collateral securing the Notes; provided that the Additional Assets shall not include the Equity Interests of Foreign Subsidiaries for purposes of the requirement unless the relevant Asset Sale consisted of the sale of Equity Interests of a controlling interest in a Permitted Business, the making of a capital expenditure or the acquisition of other long-term assets, in each case, used or useful in a Permitted Business. Pending the final application of any such Net Proceeds, the Company may temporarily reduce Senior Debt or otherwise invest such Net Proceeds in any manner that is not prohibited by this IndentureForeign Subsidiary. Any Net Proceeds from Asset Sales of Collateral that are not applied or invested as provided in the first sentence of this paragraph shall subsection (A) will be deemed to constitute "“Excess Collateral Proceeds." When ” Within 10 Business Days after the aggregate amount of Excess Collateral Proceeds exceeds $10.0 30.0 million, the Company shall Issuers will be required to make an offer (a “Collateral Disposition Offer”) to all Holders of Notes and all holders of other pari passu Indebtedness containing provisions similar to those set forth in this Indenture with respect to offers to purchase or redeem such other pari passu Indebtedness with the proceeds of sales of assets (an "Asset Sale Offer") to purchase the maximum principal amount of the Notes and (on a pro rata basis) and, if required by the terms of any other Pari Passu Notes Lien Indebtedness, to the holders of such other pari passu Pari Passu Notes Lien Indebtedness (on a pro rata basis), to which the Collateral Disposition Offer applies that may be purchased out of the Excess Proceeds Collateral Proceeds, at an offer price in cash in an amount equal to 100% of the principal amount thereofof the Notes and such other Pari Passu Notes Lien Indebtedness, plus accrued and unpaid interest and Liquidated Damagesinterest, if any, thereon to to, but excluding, the date of purchase, in accordance a principal amount of $2,000 or an integral multiple of $1,000 in excess thereof with respect to the procedures set forth in this Indenture and in such other pari passu IndebtednessNotes. To the extent that the aggregate amount of Notes so validly tendered and such not properly withdrawn pursuant to a Collateral Disposition Offer (together with, if required by the terms of any other pari passu Pari Passu Notes Lien Indebtedness, the amount of Pari Passu Notes Lien Indebtedness tendered pursuant to an Asset Sale Offer any similar requirement), is less than the Excess Collateral Proceeds, the Company Issuers may use any remaining Excess Collateral Proceeds for any purpose not otherwise prohibited by this Indenturegeneral corporate purposes, subject to the other covenants contained herein. If the aggregate principal amount of Notes and such other pari passu Indebtedness surrendered by Holders thereof and, if required by the holders of Pari Passu Notes Lien Indebtedness, holders of any Pari Passu Notes Lien Indebtedness exceeds the amount of Excess Collateral Proceeds, the Trustee shall select the Notes and such other pari passu Pari Passu Notes Lien Indebtedness to be purchased shall be selected on a pro rata basisbasis on the basis of the aggregate principal amount of tendered Notes and Pari Passu Notes Lien Indebtedness. Upon completion of an Asset Sale such Collateral Disposition Offer, the amount of Excess Collateral Proceeds shall be reset at zero. The Issuers may make a Collateral Disposition Offer if Excess Collateral Proceeds are less than $30 million and prior to 365 days after an Asset Sale of Collateral. Notwithstanding the foregoing, to the extent that any Net Proceeds or Excess Collateral Proceeds are required to be applied to prepay Indebtedness under the ABL Credit Agreement or other Pari Passu ABL Lien Indebtedness, the Issuers may make a prepayment with respect to such Indebtedness out of such Net Proceeds or Excess Collateral Proceeds, at a price in cash in an amount equal to 100% of the principal amount of such Indebtedness, plus accrued and unpaid interest, if any, to, but excluding, the date of prepayment. Pending the final application of any such Net Proceeds in accordance with the fourth and fifth paragraphs of this Section 4.10(a), the Company and its Restricted Subsidiaries may temporarily reduce Indebtedness or otherwise invest such Net Proceeds in any manner not prohibited by this Indenture.
(b) The Company will not, and will not permit any Restricted Subsidiary to, make any Asset Sale (other than Asset Sales of Collateral, which shall be treated in the manner set forth in Section 4.10(a) above) unless:
(1) The Company or such Restricted Subsidiary receives consideration (including by way of relief from, or by way of 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 date of the definitive agreement with respect to such Asset Sale) of the assets subject to such Asset Sale;
(2) at least 75% of the consideration from such Asset Sale received by the Company or such Restricted Subsidiary, as the case may be, is in the form of cash or Cash Equivalents or a combination thereof;
(A) in the case of any Asset Sale pursuant to a condemnation, seizure, appropriation or similar taking, including by deed in lieu of condemnation, or any actual or constructive total loss or an agreed or compromised total loss, such Asset Sale shall not be required to satisfy the requirements of clause (1) or (2) above;
(B) 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 repaid or converted into or sold or otherwise disposed of for cash (other than interest received with respect to any such non-cash consideration), then the date of such repayment, conversion or disposition shall be deemed to constitute the date of an Asset Sale hereunder and the Net Proceeds thereof shall be applied in accordance with this covenant; and
(3) within 365 days following such Asset Sale, an amount equal to 100% of the Net Proceeds from such Asset Sale is applied by the Company or such Restricted Subsidiary, as the case may be, as follows (it being understood that actions under clause (B), (C) or (D) may occur prior to actions under clause (A) during such 365-day period):
(A) to the extent the Company or such Restricted Subsidiary elects (or is required by the terms of any Indebtedness), to prepay, repay or purchase Indebtedness (other than Disqualified Stock, Pari Passu Second Lien Indebtedness, Junior Lien Indebtedness or Subordinated Debt) (in each case other than Indebtedness owed to the Company or an Affiliate of the Company, unless such Affiliate only sells its pro rata portion of any Notes acquired by the Issuers in any open market purchases or pursuant to any offer to purchase Notes) within 365 days after the date of such Asset Sale;
(B) to the extent the Company or such Restricted Subsidiary elects, to acquire Additional Assets within 365 days from the date of such Asset Sale (provided that any assets (other than Excluded Assets) so acquired will become part of the Collateral to the extent required by this Indenture, the Security Documents and the ABL Intercreditor Agreement as (x) Notes Priority Collateral to the extent such assets are of the type that would constitute Notes Priority Collateral or (y) ABL Priority Collateral to the extent such assets are of the type that would constitute ABL Priority Collateral securing the Notes);
(C) to the extent the Company or such Restricted Subsidiary elects to make an investment in a capital expenditure used or useful in a Permitted Business within 365 days after the date of such Asset Sale; provided that to the extent such investment is an asset (other than an Excluded Asset) which would constitute Collateral, such investment is thereupon added to the Collateral to the extent required by this Indenture, the Security Documents and the ABL Intercreditor Agreement as (x) Notes Priority Collateral to the extent such investments is of the type that would constitute Notes Priority Collateral or (y) ABL Priority Collateral to the extent such investment is of the type that would constitute ABL Priority Collateral securing the Notes;
(D) to make an offer to purchase the Notes and any Pari Passu Indebtedness with similar asset sale provisions, pro rata at 100% of the tendered principal amount thereof (or 100% of the accreted value of such other Pari Passu Indebtedness so tendered, if such Pari Passu Indebtedness was offered at a discount) plus accrued and unpaid interest, if any, to, but excluding, the purchase date; and
(E) to the extent of the balance of such Net Proceeds after application in accordance with clauses (A), (B), (C) and (D) above, to fund any corporate purpose; provided, however, that in connection with any prepayment, repayment or purchase of Indebtedness pursuant to clause (A) or (D) above, the Company or such Restricted Subsidiary will retire such Indebtedness; provided, further, that pending the final application of any such Net Proceeds in accordance with this clause (3), the Company and its Restricted Subsidiaries may temporarily reduce Indebtedness or otherwise invest such Net Proceeds in any manner not prohibited by this Indenture. Notwithstanding the provisions of the fourth paragraph of the preceding subsection (a) and clause (3) of this subsection (b), within 365 days of the date of any Asset Sale, the Company or any Restricted Subsidiary, as the case may be, may use any Net Proceeds received from such Asset Sale, instead of applying such proceeds pursuant to the fourth paragraph of the preceding subsection (a) and/or clause (3) of this subsection (b), to repay, redeem, retire, defease, replace, refinance or repurchase any Existing Senior Notes in an aggregate principal amount not to exceed (a) $300.0 million, so long as, immediately after giving pro forma effect to such repayment, redemption, retirement, defeasance, replacement, refinancing or repurchase and the incurrence of any Indebtedness the net proceeds of which are used to make such repayment, redemption, retirement, defeasance, replacement, refinancing or repurchase, the First Lien Leverage Ratio shall be no greater than 3.50 to 1.00, plus (b) $200.0 million, so long as, immediately after giving pro forma effect to such repayment, redemption, retirement, defeasance, replacement, refinancing or repurchase and the incurrence of any Indebtedness the net proceeds of which are used to make such repayment, redemption or repurchase, the First Lien Leverage Ratio shall be no greater than 3.00 to 1.00. In the case of the fourth paragraph of Section 4.10(a) or clause (3)(B) of this Section 4.10(b), if, during the 365-day period following the date of the Asset Sale, the Company or such Restricted Subsidiary enters into a written agreement committing it to apply such Net Proceeds in accordance with the requirements of the fourth paragraph of Section 4.10(a) or clause (3)(B) of this Section 4.10(b) after such 365-day period, then 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) or has been applied, as the case may be. In the event of an Asset Sale that requires the purchase of Notes or in which the Issuers elect to purchase Notes pursuant to clause (3)(D) of this Section 4.10(b), the Issuers will be required to apply such Excess Proceeds (as defined below) to the repayment of the Notes and any other Pari Passu Indebtedness outstanding with similar provisions requiring the Issuers to make an offer to purchase such Indebtedness with the proceeds from any Asset Sale as follows:
(1) the Issuers will make an offer to purchase (a “Net Proceeds Offer”) within ten Business Days of such time from all Holders in the maximum principal amount of Notes that may be purchased out of an amount (the “Note Amount”) equal to the product of such Excess Proceeds multiplied by a fraction, the numerator of which is the outstanding principal amount of the Notes and the denominator of which is the sum of the outstanding principal amount of the Notes and such Pari Passu Indebtedness; and
(2) to the extent required by such Pari Passu Indebtedness to permanently reduce the principal amount of such Pari Passu Indebtedness, the Issuers will make an offer to purchase or otherwise repurchase or redeem such Pari Passu Indebtedness (a “Pari Passu Offer”) in an amount equal to the excess of the Excess Proceeds over the Note Amount at a purchase price of 100% of their principal amount (or 100% of the accreted value of such Pari Passu Indebtedness, if such Pari Passu Indebtedness was offered at a discount) plus accrued and unpaid interest, if any, to, but excluding, to the purchase date with respect to the Net Proceeds Offer and in the documentation gover
Appears in 1 contract
Sources: Indenture (NGL Energy Partners LP)
Asset Sales. The Company shall notSection 4(m) of the Initial Extension Agreement (as the same may have been amended, and shall not permit any of its Restricted Subsidiaries modified or supplemented in the Letter Agreements) is hereby amended to, consummate an Asset Sale unless : (i) replace the Company or such Restricted Subsidiarywords “May 30, as 2008” with the case may bewords “September 30, receives consideration 2008” in each instance in which they appear in said section and (ii) add the following sentence at the time end thereof: “Notwithstanding anything in this paragraph 4(m) to the contrary, from and after the Effective Date through the Termination Date, each of the terms and provisions of this paragraph 4(m) restricting the sale, assignment, or disposition of assets owned or ground leased by any Super Entity or any Australian Company Entity (or the direct or indirect equity interests of such entities) shall be subject to, and deemed amended by, the Asset Sale at least equal Disposal and Proceeds Sharing Terms such that the Asset Disposal and Proceeds Sharing Terms shall govern with respect to sales, assignments and dispositions of assets owned or ground leased by any Super Entity or any Australian Company Entity (or the direct or indirect equity interests of such entities); provided, for the avoidance of doubt, that nothing in this paragraph or in the Asset Disposal and Proceeds Sharing Terms is intended to, nor shall it be deemed to, restrict any Centro GA Entity from consummating any sale, assignment or disposition of any asset owned or ground leased by such Centro GA Entity, or prohibit any Centro GA Entity from raising additional new equity or capital, or from engaging in any refinancing transaction. The Lender Parties hereby confirm their consent to any sale, assignment or disposition of real property that is made in accordance with the terms of a binding contract of sale existing as of the date of this letter agreement or that has been approved in writing by the Lender Parties prior to the fair market value date hereof, including the Additional Permitted Property Sales (evidenced by a resolution as defined in the March Agreement) and the Approved Transactions (as defined in the May 7 Agreement); provided, however, that the consent of the Lender Parties to each of the Additional Permitted Property Sales remains subject to the condition that the gross sale price reflected in the proposal submitted to, and approved by, the Board of Directors set forth of CPT in an Officers' Certificate delivered to the Trustee) respect of the assets or Equity Interests issued or sold or otherwise disposed applicable Additional Permitted Property Sale is not reduced by an amount that is greater than the lesser of (i) 5% of such gross sale price and (ii) at least 75% $250,000 (for the avoidance of doubt, the net proceeds of the consideration therefor received by Additional Permitted Property Sales and the Company or such Restricted Subsidiary is in the form of cash or Cash Equivalents; provided that the amount of (a) any liabilities (as shown on the Company's or such Restricted Subsidiary's most recent balance sheet) of the Company or such Restricted Subsidiary (other than contingent liabilities and liabilities that are by their terms subordinated to the Notes or any guarantee thereof) that are assumed by the transferee of any such assets pursuant to a customary novation agreement that releases the Company or such Restricted Subsidiary from further liability, (b) any securities, notes or other obligations received by the Company or such Restricted Subsidiary from such transferee that are immediately converted by the Company or such Restricted Subsidiary into cash (to the extent of the cash received) and (c) escrowed cash that the Company reasonably believes will be released from escrow within 365 days from the date of consummation of such Asset Sale, in each case Approved Transactions shall be deemed to be cash for purposes of this provision. Notwithstanding the immediately preceding paragraph, the Company and its Restricted Subsidiaries will be permitted to consummate an Asset Sale without complying with such paragraph if (i) the Company or the applicable Restricted Subsidiary, as the case may be, receives consideration at the time of such Asset Sale at least equal to the fair market value of the assets or other property sold, issued or otherwise disposed of (as evidenced by a resolution of the Company's Board of Directors set forth in an Officers' Certificate delivered to the Trustee) and (ii) at least 75% of the consideration for such Asset Sale constitutes a controlling interest in a Permitted Business, long-term assets used or useful in a Permitted Business and/or cash or Cash Equivalents; provided that any cash or Cash Equivalents received by the Company or any of its Restricted Subsidiaries in connection with any Asset Sale permitted to be consummated under this paragraph shall constitute Net Proceeds subject to the provisions of the next succeeding paragraph. Within 365 days of the receipt of any Net Proceeds from an Asset Sale, the Company may apply such Net Proceeds, at its option, (i) to repay Senior Debt under a Credit Facility (and to correspondingly reduce commitments with respect thereto in the case of revolving borrowings) or (ii) to the acquisition of a controlling interest in a Permitted Business, the making of a capital expenditure or the acquisition of other long-term assets, in each case, used or useful in a Permitted Business. Pending the final application of any such Net Proceeds, the Company may temporarily reduce Senior Debt or otherwise invest such Net Proceeds in any manner that is not prohibited by this Indenture. Any Net Proceeds from Asset Sales that are not applied or invested as provided in the first sentence of this paragraph shall be deemed to constitute "Excess Proceeds." When the aggregate amount of Excess Proceeds exceeds $10.0 million, the Company shall be required to make an offer to all Holders of Notes and all holders of other pari passu Indebtedness containing provisions similar to those set forth in this Indenture with respect to offers to purchase or redeem such other pari passu Indebtedness with the proceeds of sales of assets (an "Asset Sale Offer") to purchase the maximum principal amount of Notes and such other pari passu Indebtedness that may be purchased out of the Excess Proceeds at an offer price in cash in an amount equal to 100% of the principal amount thereof, plus accrued and unpaid interest and Liquidated Damages, if any, thereon to the date of purchase, in accordance with the procedures set forth in this Indenture Asset Disposal and in such other pari passu Indebtedness. To the extent Proceeds Sharing Terms, provided that the aggregate amount gross purchase prices of Notes the properties that are the subject of the Additional Permitted Property Sales and such other pari passu Indebtedness tendered pursuant to an Asset Sale Offer is less than the Excess Proceeds, the Company may use Approved Transactions shall not be included in any remaining Excess Proceeds for any purpose not otherwise prohibited by this Indenture. If calculation of the aggregate principal amount gross purchase prices during any applicable rolling twelve month period for purposes of Notes the Asset Disposal and such other pari passu Indebtedness surrendered by Holders thereof exceeds the amount of Excess Proceeds, the Trustee shall select the Notes and such other pari passu Indebtedness to be purchased on a pro rata basis. Upon completion of an Asset Sale Offer, the amount of Excess Proceeds shall be reset at zeroSharing Terms).”
Appears in 1 contract
Asset Sales. The Company shall not, and shall not permit any of its Restricted Subsidiaries to, consummate an Asset Sale unless (i) the Company or such Restricted Subsidiary, as the case may be, receives consideration at the time of such Asset Sale at least equal to the fair market value (evidenced by a resolution of the Board of Directors set forth in an Officers' Certificate delivered to the Trustee) of the assets or Equity Interests issued or sold or otherwise disposed of and (ii) at least 75% of the consideration therefor received by the Company or such Restricted Subsidiary is in the form of cash or Cash Equivalents; provided that the amount of (a) any liabilities (as shown on the Company's or such Restricted Subsidiary's most recent balance sheet) of the Company or such Restricted Subsidiary (other than contingent liabilities and liabilities that are by their terms subordinated to the Notes or any guarantee thereof) that are assumed by the transferee of any such assets pursuant to a customary novation agreement that releases the Company or such Restricted Subsidiary from further liability, (b) any securities, notes or other obligations received by the Company or such Restricted Subsidiary from such transferee that are immediately converted by the Company or such Restricted Subsidiary into cash (to the extent of the cash received) and (c) escrowed cash that the Company reasonably believes will be released from escrow within 365 days from the date of consummation of such Asset Sale, in each case shall be deemed to be cash for purposes of this provision. Notwithstanding the immediately preceding paragraph, the Company and its Restricted Subsidiaries will be permitted to consummate an Asset Sale without complying with such paragraph if (i) the Company or the applicable Restricted Subsidiary, as the case may be, receives consideration at the time of such Asset Sale at least equal to the fair market value of the assets or other property sold, issued sold or otherwise disposed of (as evidenced determined in good faith by a resolution of the Company's Board of Directors); (ii) at least 75% of the consideration received by the Company or the Restricted Subsidiary, as the case may be, from such Asset Sale shall be in the form of cash or Cash Equivalents and is received at the time of such disposition; PROVIDED that the amount of: (a) any liabilities (as shown on the -40- Company's or such Restricted Subsidiary's most recent balance sheet) of the Company or any such Restricted Subsidiary (other than liabilities that are by their terms subordinated to the Notes) that are assumed by the transferee of any such assets; (b) any notes or other obligations received by the Company or any such Restricted Subsidiary from such transferee that are converted by the Company or such Restricted Subsidiary into cash within 90 days of the receipt thereof (to the extent of the cash received); and (c) any Designated Noncash Consideration received by the Company or any of its Restricted Subsidiaries in such Asset Sale having an aggregate fair market value, taken together with all other Designated Noncash Consideration received pursuant to this clause (c) that is at that time outstanding, not to exceed 5% of Total Assets at the time of the receipt of such Designated Noncash Consideration (with the fair market value of each item of Designated Noncash Consideration being measured at the time received and without giving effect to subsequent changes in value), shall be deemed to be cash for the purposes of this provision or for purposes of the second paragraph of this Section 4.10; and (iii) upon the consummation of an Asset Sale, the Company shall apply, or cause such Restricted Subsidiary to apply, the Net Cash Proceeds relating to such Asset Sale within 399 days of receipt thereof either (A) to prepay any Senior Debt or Indebtedness of a Restricted Subsidiary and, in the case of any such Indebtedness under any revolving credit facility, effect a corresponding reduction in the availability under such revolving credit facility (or effect a permanent reduction in the availability under such revolving credit facility regardless of the fact that no prepayment is required in order to do so (in which case no prepayment should be required)), (B) to reinvest in Productive Assets, or (C) a combination of prepayment and investment permitted by the foregoing clauses (iii)(A) and (iii)(B). Pending the final application of any such Net Cash Proceeds, the Company or such Restricted Subsidiary may temporarily reduce Indebtedness under a revolving credit facility, if any, or otherwise invest such Net Cash Proceeds in Cash Equivalents. On the 400th day after an Asset Sale or such earlier date, if any, as the Board of Directors of the Company or of such Restricted Subsidiary determines not to apply the Net Cash Proceeds relating to such Asset Sale as set forth in an Officers' Certificate delivered to the Trusteeclauses (iii)(A), (iii)(B) and (iiiii)(C) of the preceding sentence (each, a "NET PROCEEDS OFFER TRIGGER DATE"), such aggregate amount of Net Cash Proceeds which have not been applied on or before such Net Proceeds Offer Trigger Date as permitted in clauses (iii)(A), (iii)(B) and (iii)(C) of the next preceding sentence (each a "NET PROCEEDS OFFER AMOUNT") shall be applied by the Company or such Restricted Subsidiary to make an offer to purchase (the "NET PROCEEDS OFFER") on a date (the "NET PROCEEDS OFFER PAYMENT DATE") not less than 30 nor more than 60 days following the applicable Net Proceeds Offer Trigger Date, from all Holders on a PRO RATA basis, the maximum amount of Notes that may be purchased with the Net Proceeds Offer Amount at a price equal to 100% of the principal amount of the Notes to be purchased, plus accrued and unpaid interest thereon, if any, to the date of purchase; PROVIDED, HOWEVER, that if at any time any non-cash consideration (including any Designated Noncash Consideration) received by the Company or any Restricted Subsidiary of the Company, as the case may be, in connection with any Asset Sale is converted into or sold or otherwise disposed of for cash (other than interest received with respect to any such non-cash consideration), then such conversion or disposition shall be deemed to constitute an Asset Sale hereunder and the Net Cash Proceeds thereof shall be applied in accordance with this Section 4.10. Notwithstanding the foregoing, if a Net Proceeds Offer Amount is less than $12.0 million, the application of the Net Cash Proceeds constituting such Net Proceeds Offer Amount to a Net Proceeds Offer may be deferred until such time as such Net Proceeds Offer Amount plus the aggregate amount of all Net Proceeds Offer Amounts arising subsequent to the Net Proceeds Offer Trigger Date relating to such initial Net Proceeds Offer Amount from all Asset Sales by the Company and its Restricted Subsidiaries aggregates at least $12.0 million, at which time the Company or such Restricted Subsidiary shall apply all Net Cash Proceeds constituting all Net Proceeds Offer Amounts that have been so deferred to make a Net Proceeds Offer (the first date the ag- gregate of all such deferred Net Proceeds Offer Amounts is equal to $12.0 million or more shall be deemed to be a Net Proceeds Offer Trigger Date). Notwithstanding the immediately preceding paragraph, the Company and its Restricted Subsidiaries will be permitted to consummate an Asset Sale without complying with such paragraph to the extent that: (i) at least 75% of the consideration for such Asset Sale constitutes a controlling interest in a Permitted BusinessProductive Assets, long-term assets used or useful in a Permitted Business cash, Cash Equivalents and/or cash or Cash EquivalentsMarketable Securities; provided and (ii) such Asset Sale is for fair market value; PROVIDED that any cash or consideration consisting of cash, Cash Equivalents and/or Marketable Securities received by the Company or any of its Restricted Subsidiaries in connection with any Asset Sale permitted to be consummated under this paragraph shall constitute Net Cash Proceeds subject to the provisions of the next succeeding preceding paragraph. Within 365 days Notice of the receipt of any each Net Proceeds from an Asset Sale, the Company may apply such Net Proceeds, at its option, (i) to repay Senior Debt under a Credit Facility (and to correspondingly reduce commitments with respect thereto in the case of revolving borrowings) or (ii) Offer will be mailed to the acquisition record Holders as shown on the register of a controlling interest in a Permitted Business, Holders within 30 days following the making of a capital expenditure or the acquisition of other long-term assets, in each case, used or useful in a Permitted Business. Pending the final application of any such Net Proceeds, the Company may temporarily reduce Senior Debt or otherwise invest such Net Proceeds in any manner that is not prohibited by this Indenture. Any Net Proceeds from Asset Sales that are not applied or invested as provided in the first sentence of this paragraph shall be deemed to constitute "Excess Proceeds." When the aggregate amount of Excess Proceeds exceeds $10.0 millionOffer Trigger Date, the Company shall be required to make an offer to all Holders of Notes and all holders of other pari passu Indebtedness containing provisions similar to those set forth in this Indenture with respect to offers to purchase or redeem such other pari passu Indebtedness with the proceeds of sales of assets (an "Asset Sale Offer") to purchase the maximum principal amount of Notes and such other pari passu Indebtedness that may be purchased out of the Excess Proceeds at an offer price in cash in an amount equal to 100% of the principal amount thereof, plus accrued and unpaid interest and Liquidated Damages, if any, thereon a copy to the date of purchaseTrustee, in accordance and shall comply with the procedures set forth in this Indenture and in such other pari passu IndebtednessSection 3.09 hereof. To the extent that the aggregate amount of Notes and such other pari passu Indebtedness tendered pursuant to an Asset Sale a Net Proceeds Offer is less than the Excess ProceedsNet Proceeds Offer Amount, the Company may use any remaining Excess Net Proceeds Offer Amount for general corporate purposes or for any other purpose not otherwise prohibited by this Indenture. If the aggregate principal amount of Notes and such other pari passu Indebtedness surrendered by Holders thereof exceeds the amount of Excess Proceeds, the Trustee shall select the Notes and such other pari passu Indebtedness to be purchased on a pro rata basis. Upon completion of an Asset Sale any such Net Proceeds Offer, the amount of Excess Net Proceeds Offer Amount shall be reset at zero. The Company will comply with the requirements of Rule 14e-1 under the Exchange Act and any other securities laws and regulations thereunder to the extent such laws and regulations are applicable in connection with the repurchase of Notes pursuant to a Net Proceeds Offer. To the extent that the provisions of any securities laws or regulations conflict with the provisions of this Section 4.10, the Company shall comply with the applicable securities laws and regulations and shall not be deemed to have breached its obligations under this Section 4.10 by virtue thereof.
Appears in 1 contract
Asset Sales. The Company shall not, and shall not permit any of its Restricted Subsidiaries to, consummate an Asset Sale unless (i) the Company (or such Restricted the Subsidiary, as the case may be, ) receives consideration at the time of such Asset Sale at least equal to the fair market value (evidenced by a resolution of the Board of Directors set forth in an Officers' Certificate delivered to the Trustee) of the assets or Equity Interests issued or sold or otherwise disposed of and (ii) at least 75% of the consideration therefor received by the Company or such Restricted Subsidiary is in the form of cash or Cash Equivalentscash; provided that the amount of (ax) any liabilities (as shown on the Company's or such Restricted Subsidiary's most recent balance sheet) ), of the Company or such Restricted any Subsidiary (other than contingent liabilities and liabilities that are by their terms subordinated to the Senior Notes or any guarantee such Subsidiary's Subsidiary Guarantee thereof) that are assumed by the transferee of any such assets pursuant (except with respect to assumptions of trade payables) to a customary novation agreement that releases the Company or such Restricted Subsidiary from further liability, liability and (by) any securities, notes or other obligations received by the Company or any such Restricted Subsidiary from such transferee that are immediately contemporaneously (subject to ordinary settlement periods) converted by the Company or such Restricted Subsidiary into cash (to the extent of the cash received) and (c) escrowed cash that the Company reasonably believes will be released from escrow within 365 days from the date of consummation of such Asset Sale), in each case shall be deemed to be cash for purposes of this provision. Notwithstanding the immediately preceding paragraph, the Company and its Restricted Subsidiaries will be permitted to consummate an Asset Sale without complying with such paragraph if (i) the Company or the applicable Restricted Subsidiary, as the case may be, receives consideration at the time of such Asset Sale at least equal to the fair market value of the assets or other property sold, issued or otherwise disposed of (as evidenced by a resolution of the Company's Board of Directors set forth in an Officers' Certificate delivered to the Trustee) and clause (ii) at least 75% of the consideration for such Asset Sale constitutes a controlling interest in a Permitted Business, long-term assets used or useful in a Permitted Business and/or cash or Cash Equivalents; provided that any cash or Cash Equivalents received by the Company or any of its Restricted Subsidiaries in connection with any Asset Sale permitted to be consummated under this paragraph shall constitute Net Proceeds subject to the provisions of the next succeeding paragraph). Within 365 days of after the receipt of any Net Proceeds from an Asset Sale, the Company may apply such Net Proceeds, at its option, (ia) to repay Senior Debt Indebtedness under a the New Credit Facility (and to correspondingly reduce commitments with respect thereto in the case of revolving borrowings) Agreement or (iib) to the acquisition of a controlling interest an investment in a Permitted Business, Business through the making of a capital expenditure or the acquisition of other long-term assets, in each case, assets that are used or useful in a Permitted Business. Pending the final application of any such Net Proceeds, the Company may temporarily reduce Senior Debt revolving credit borrowings or otherwise invest such Net Proceeds in any manner that is not prohibited by this Indenture. Any Net Proceeds from Asset Sales that are not applied or invested as provided in the first sentence of this paragraph shall will be deemed to constitute "Excess Proceeds." When the aggregate amount of Excess Proceeds exceeds $10.0 million, the Company shall be required to make commence an offer to all Holders of Notes and all holders of other pari passu Indebtedness containing provisions similar to those set forth in this Indenture with respect to offers to purchase or redeem such other pari passu Indebtedness with the proceeds of sales of assets (an "Asset Sale Offer") Offer to purchase the maximum principal amount of Senior Notes and such other pari passu Indebtedness that may be purchased out of the Excess Proceeds Proceeds, at an offer price in cash in an amount equal to 100% of the principal amount thereof, thereof plus accrued and unpaid interest and Liquidated DamagesDamages thereon, if any, thereon to the date of purchase, in accordance with the procedures set forth in this Indenture Section 3.09 hereof. The Company shall comply with the requirements of Rule 14e-1 under the Exchange Act and any other securities laws and regulations thereunder to the extent such laws and regulations are applicable in such other pari passu Indebtednessconnection with the repurchase of the Senior Notes in any Asset Sale Offer. To the extent that the aggregate amount of Senior Notes and such other pari passu Indebtedness tendered pursuant to an Asset Sale Offer is less than the Excess Proceeds, the Company may use any remaining Excess Proceeds for any purpose not otherwise prohibited by this Indenturegeneral corporate purposes. If the aggregate principal amount of Senior Notes and such other pari passu Indebtedness surrendered by Holders thereof exceeds the amount of Excess Proceeds, the Trustee shall select the Senior Notes and such other pari passu Indebtedness to be purchased on a pro rata basis. Upon completion of an Asset Sale Offersuch offer to purchase, the amount of Excess Proceeds shall be reset at zero.
Appears in 1 contract
Sources: Indenture (Curtis Sub Inc)
Asset Sales. The Company shall not, and shall not permit any of its Restricted Subsidiaries to, consummate an Asset Sale unless (i) the Company (or such Restricted the Subsidiary, as the case may be, ) receives consideration at the time of such Asset Sale at least equal to the fair market value (evidenced by a resolution of the Board of Directors set forth in an Officers' Certificate delivered to the Trustee) of the assets or Equity Interests issued or sold or otherwise disposed of and (ii) at least 7585% of the consideration therefor received by the Company or such Restricted Subsidiary is in the form of cash or Cash Equivalentscash; provided that the amount of (ax) any liabilities (as shown on the Company's or such Restricted Subsidiary's most recent balance sheet) ), of the Company or such Restricted any Subsidiary (other than contingent liabilities and liabilities that are by their terms subordinated to the Notes or any guarantee thereof) that are assumed by the transferee of any such assets pursuant to a customary novation agreement that releases the Company or such Restricted Subsidiary from further liability, liability and (by) any securities, notes or other obligations received by the Company or any such Restricted Subsidiary from such transferee that are immediately (subject to ordinary settlement periods) converted by the Company or such Restricted Subsidiary into cash (to the extent of the cash received) and (c) escrowed cash that the Company reasonably believes will be released from escrow within 365 days from the date of consummation of such Asset Sale), in each case shall be deemed to be cash for purposes of this provision. Notwithstanding the immediately preceding paragraph, the Company and its Restricted Subsidiaries will be permitted to consummate an Asset Sale without complying with such paragraph if (i) the Company or the applicable Restricted Subsidiary, as the case may be, receives consideration at the time of such Asset Sale at least equal to the fair market value of the assets or other property sold, issued or otherwise disposed of (as evidenced by a resolution of the Company's Board of Directors set forth in an Officers' Certificate delivered to the Trustee) and (ii) at least 75% of the consideration for such Asset Sale constitutes a controlling interest in a Permitted Business, long-term assets used or useful in a Permitted Business and/or cash or Cash Equivalents; provided that any cash or Cash Equivalents received by the Company or any of its Restricted Subsidiaries in connection with any Asset Sale permitted to be consummated under this paragraph shall constitute Net Proceeds subject to the provisions of the next succeeding paragraphSection 4.10. Within 365 days of after the receipt of any Net Proceeds from an Asset Sale, the Company may apply such Net Proceeds, Proceeds at its option, (ia) to repay Senior Debt indebtedness under a Credit Facility or Senior Debt (and to correspondingly reduce commitments with respect thereto in the case of to revolving borrowings) or (iib) to the acquisition of a controlling interest in a Permitted Businessanother business, the making of a capital expenditure or the acquisition of other long-term assets, in each case, used in the same or useful a similar line of business as the Company was engaged in a Permitted Businesson 39 the date of this Indenture. Pending the final application of any such Net Proceeds, the Company may temporarily reduce Senior Debt revolving credit borrowings or otherwise invest such Net Proceeds in any manner that is not prohibited by this Indenture. Any Net Proceeds from Asset Sales that are not applied or invested as provided in the first sentence of this paragraph shall will be deemed to constitute "Excess Proceeds." When the aggregate amount of Excess Proceeds exceeds $10.0 7.5 million, the Company shall will be required to make an offer Asset Sale Offer to all Holders of Notes and all holders of other pari passu Indebtedness containing provisions similar to those set forth in this Indenture with respect to offers to purchase or redeem such other pari passu Indebtedness with the proceeds of sales of assets (an "Asset Sale Offer") to purchase the maximum principal amount of Notes and such other pari passu Indebtedness that may be purchased out of the Excess Proceeds Proceeds, at an offer price in cash in an amount equal to 100% of the principal amount thereof, thereof plus accrued and unpaid interest and Liquidated DamagesDamages thereon, if any, thereon to the date of purchase, in accordance with the procedures set forth in this Indenture and in such other pari passu IndebtednessSection 3.09 hereof. To the extent that the aggregate amount of Notes and such other pari passu Indebtedness tendered pursuant to an Asset Sale Offer is less than the Excess Proceeds, the Company may use any remaining Excess Proceeds for any purpose not otherwise prohibited by this Indenturegeneral corporate purposes. If the aggregate principal amount of Notes and such other pari passu Indebtedness surrendered by Holders thereof exceeds the amount of Excess Proceeds, the Trustee shall select the Notes and such other pari passu Indebtedness to be purchased on a pro rata basis. Upon completion of an Asset Sale Offersuch offer to purchase, the amount of Excess Proceeds shall be reset at zero.
Appears in 1 contract
Sources: Indenture (Luiginos Inc)
Asset Sales. The Company shall not, and shall not permit any of its Restricted Subsidiaries to, directly or indirectly, consummate an Asset Sale unless (i) the Company (or such Restricted Subsidiary, as the case may be, ) receives consideration at the time of such Asset Sale at least equal to the fair market value (evidenced by a resolution of the Board of Directors of the Company set forth in an Officers' Certificate delivered to the Trustee) of the assets or Equity Interests issued or sold or otherwise disposed of and (ii) at least 75% of the consideration therefor received by the Company or such Restricted Subsidiary is in the form of cash or Cash Equivalents; provided that the amount of (a) any liabilities (as shown on the Company's or such Restricted Subsidiary's most recent balance sheet) of the Company or such Restricted Subsidiary (other than contingent liabilities and liabilities that are by their terms subordinated to the Notes or any guarantee Guarantee thereof) that are assumed by the transferee of any such assets or Equity Interests pursuant to a customary novation agreement that expressly releases the Company or such Restricted Subsidiary from further liability, liability and (b) any securities, notes or other obligations received by the Company or such Restricted Subsidiary from such transferee that are immediately converted by the Company or such Restricted Subsidiary into cash within 30 days after such Asset Sale (to the extent of the cash received) and (c) escrowed cash that the Company reasonably believes will be released from escrow within 365 days from the date of consummation of such Asset Sale, in each case shall be deemed to be cash for purposes of this provision. Notwithstanding the immediately preceding paragraph, the Company and its Restricted Subsidiaries will be permitted to consummate an Asset Sale without complying with such paragraph if (i) the Company or the applicable Restricted Subsidiary, as the case may be, receives consideration at the time of such Asset Sale at least equal to the fair market value of the assets or other property sold, issued or otherwise disposed of (as evidenced by a resolution of the Company's Board of Directors set forth in an Officers' Certificate delivered to the Trustee) and (ii) at least 75% of the consideration for such Asset Sale constitutes a controlling interest in a Permitted Business, long-term assets used or useful in a Permitted Business and/or cash or Cash Equivalents; provided that any cash or Cash Equivalents received by the Company or any of its Restricted Subsidiaries in connection with any Asset Sale permitted to be consummated under this paragraph shall constitute Net Proceeds subject to the provisions of the next succeeding paragraph. Within 365 days of after the receipt of any Net Proceeds from an Asset Sale, the Company may apply such Net ProceedsCompany, at its option, may apply such Net Proceeds (i) to repay permanently reduce any Senior Debt under a Credit Facility of the Company and/or its Wholly-Owned Restricted Subsidiaries (and to correspondingly reduce commitments with respect thereto in the case of revolving borrowings) or (ii) to the acquisition of a controlling interest in a Permitted Businessanother business, the making of a capital expenditure or the acquisition of other long-term assetsassets (other than assets that would be classified as current assets in accordance with GAAP), in each case, used in the same or useful a reasonably similar line of business as the Company and its Restricted Subsidiaries were engaged in a Permitted Businesson the date of this Indenture or in any business reasonably complementary, related or incidental thereto as determined in good faith by the Board of Directors of the Company. Pending the final application of any such Net Proceeds, the Company may apply such Net Proceeds to temporarily reduce Senior Debt borrowings under the Credit Facility or otherwise invest such Net Proceeds in any manner that is not prohibited by this Indenture. Any Net Proceeds from Asset Sales that are not applied or invested as provided in the first sentence of this paragraph shall will be deemed to constitute "Excess Proceeds." When the aggregate amount of Excess Proceeds exceeds $10.0 5.0 million, the Company shall be required to make an offer to all Holders of Notes and all holders of other pari passu Indebtedness containing provisions similar to those set forth in this Indenture with respect to offers to purchase or redeem such other pari passu Indebtedness with the proceeds of sales of assets (an "Asset Sale Offer") to purchase the maximum principal amount of Notes and such other pari passu Indebtedness that may be purchased out of does not exceed the Excess Proceeds at an offer price in cash in an amount equal to 100% of the principal amount thereof, plus accrued and unpaid interest and Liquidated Damages, if any, thereon to the date of purchase, in accordance with the procedures set forth in this Indenture and in such other pari passu IndebtednessSection 3.10 hereof. To the extent that the aggregate principal amount of Notes and such other pari passu Indebtedness tendered pursuant to an Asset Sale Offer is less than the Excess Proceeds, the Company may use any remaining Excess Proceeds for any purpose not otherwise prohibited by this Indenturegeneral corporate purposes. If the aggregate principal amount of Notes and such other pari passu Indebtedness surrendered tendered by Holders thereof exceeds the amount of Excess Proceeds, the Trustee shall select the Notes and such other pari passu Indebtedness to be purchased on a pro rata basisbasis (with such adjustments as may be deemed appropriate by the Trustee so that only Notes in denominations of $1,000, or integral multiples thereof, shall be purchased). Upon completion of an Asset Sale Offer, the amount of Excess Proceeds shall be reset at zero. The Asset Sale Offer must be commenced within 30 days following the date on which the aggregate amount of Excess Proceeds exceeds $5.0 million and remain open for at least 30 and not more than 40 days (unless otherwise required by applicable law). The Company shall comply with the requirements of Rule 14e-1 under the Exchange Act and any other securities laws and regulations thereunder to the extent such laws and regulations are applicable in connection with the repurchase of Notes pursuant to an Asset Sale Offer.
Appears in 1 contract
Sources: Indenture (Sbarro Inc)
Asset Sales. The Company shall not, and shall not permit any of its Restricted Subsidiaries to, consummate engage in an Asset Sale in excess of [$1,000,000] unless (i) the Company (or such Restricted the Subsidiary, as the case may be, ) receives consideration at the time of such Asset Sale 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 the Company (or the 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 of Directors of such entity set forth in an Officers' Certificate delivered to the Trustee) of the assets or Equity Interests issued or sold or otherwise disposed of and of, (ii) at least [75%] (100% in the case of lease payments) of the consideration therefor received by the Company or such Restricted Subsidiary is in the form of cash or Cash Equivalents; provided that the amount of (a) any liabilities (as shown on the Company's or such Restricted Subsidiary's most recent balance sheet) of the Company or such Restricted Subsidiary (other than contingent liabilities and liabilities that are by their terms subordinated to the Notes or any guarantee thereof) that are assumed by the transferee of any such assets pursuant to a customary novation agreement that releases the Company or such Restricted Subsidiary from further liability, (b) any securities, notes or other obligations received by the Company or any such Restricted Subsidiary from such transferee that are immediately promptly, but in no event more than 30 days after receipt, converted by the Company or such Restricted Subsidiary into cash (to the extent of the cash received) and (c) escrowed cash that the Company reasonably believes will be released from escrow within 365 days from the date of consummation of such Asset Sale), in each case shall be deemed to be cash for purposes of this provision. Notwithstanding , (iii) subject to the immediately preceding paragraphIntercreditor Agreement, if such Asset Sale involves the disposition of Collateral, the Company or such Subsidiary has complied with the provisions of Articles 10 and its Restricted Subsidiaries will be permitted to consummate an Asset Sale without complying with such paragraph if 11 hereof, and (iiv) the Company or the applicable Restricted Subsidiary, as the case may be, receives consideration at applies 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 Company's Board of Directors set forth in an Officers' Certificate delivered to the Trustee) and (ii) at least 75% of the consideration for such Asset Sale constitutes a controlling interest in a Permitted Business, long-term assets used or useful in a Permitted Business and/or cash or Cash Equivalents; provided that any cash or Cash Equivalents received by the Company or any of its Restricted Subsidiaries in connection with any Asset Sale permitted to be consummated under this paragraph shall constitute Net Proceeds subject to as provided in the provisions of the next succeeding following paragraph. Within 365 Any such Net Proceeds shall be applied within 180 days of the receipt of any Net Proceeds from an related Asset Sale, the Company may apply such Net Proceeds, at its option, Sale as follows:
(i) to the extent that such Net Proceeds are derived from property or assets which do not constitute Primary Collateral or are not deemed (pursuant to the provisions described below) to constitute Primary Collateral Proceeds ("NON-PRIMARY COLLATERAL PROCEEDS"), such Non-Primary Collateral Proceeds may, at the option of the Company, be applied to repay Senior Debt Indebtedness outstanding under a the New Credit Facility (and to correspondingly reduce commitments with respect thereto in the case of revolving borrowings) or Agreement; and
(ii) with respect to the acquisition of a controlling interest in a Permitted Business, the making of a capital expenditure or the acquisition of other long-term assets, in each case, used or useful in a Permitted Business. Pending the final application of any such Net Proceeds, the Company may temporarily reduce Senior Debt or otherwise invest such Net Proceeds in any manner that derived from property or assets which constitute Primary Collateral ("PRIMARY COLLATERAL PROCEEDS") or derived from a transaction as a result of which a Subsidiary Guarantor is not prohibited by this Indenture. Any Net Proceeds released from Asset Sales that are not applied or invested its Subsidiary Guarantee as provided in Section 12.04 and which (pursuant to the first sentence of this paragraph shall be provisions described below) are deemed to constitute "Excess be Primary Collateral Proceeds." When the aggregate amount of Excess Proceeds exceeds $10.0 million, the Company shall be required to make an offer to all Holders of Notes and all holders of other pari passu Indebtedness containing provisions similar to those set forth in this Indenture with respect to offers any Non-Primary Collateral Proceeds remaining after application as described in subparagraph (i) above (all such Primary Collateral Proceeds and amounts deemed to purchase or redeem such other pari passu Indebtedness with the proceeds of sales of assets (an "Asset Sale Offer") to purchase the maximum principal amount of Notes and such other pari passu Indebtedness that may be purchased out of the Excess Proceeds at an offer price in cash in an amount equal to 100% of the principal amount thereof, plus accrued and unpaid interest and Liquidated Damages, if any, thereon to the date of purchase, in accordance with the procedures set forth in this Indenture and in such other pari passu Indebtedness. To the extent that the aggregate amount of Notes and such other pari passu Indebtedness tendered pursuant to an Asset Sale Offer is less than the Excess Primary Collateral Proceeds, the Company may use together with any remaining Excess Proceeds for any purpose not otherwise prohibited by this Indenture. If the aggregate principal amount of Notes and such other pari passu Indebtedness surrendered by Holders thereof exceeds the amount of Excess Proceeds, the Trustee shall select the Notes and such other pari passu Indebtedness to be purchased on a pro rata basis. Upon completion of an Asset Sale Offer, the amount of Excess Proceeds shall be reset at zero.such
Appears in 1 contract
Sources: Indenture (RBX Corp)
Asset Sales. The Company shall notPromptly, and shall but in any event not permit any of its Restricted Subsidiaries to, consummate an Asset Sale unless (i) the Company or such Restricted Subsidiary, as the case may be, receives consideration at the time of such Asset Sale at least equal to the fair market value (evidenced by a resolution of the Board of Directors set forth in an Officers' Certificate delivered to the Trustee) of the assets or Equity Interests issued or sold or otherwise disposed of and (ii) at least 75% of the consideration therefor received by the Company or such Restricted Subsidiary is in the form of cash or Cash Equivalents; provided that the amount of (a) any liabilities (as shown on the Company's or such Restricted Subsidiary's most recent balance sheet) of the Company or such Restricted Subsidiary (other later than contingent liabilities and liabilities that are by their terms subordinated to the Notes or any guarantee thereof) that are assumed by the transferee of any such assets pursuant to a customary novation agreement that releases the Company or such Restricted Subsidiary from further liability, (b) any securities, notes or other obligations received by the Company or such Restricted Subsidiary from such transferee that are immediately converted by the Company or such Restricted Subsidiary into cash (to the extent of the cash received) and (c) escrowed cash that the Company reasonably believes will be released from escrow within 365 thirty days from the date of consummation of such Asset Sale, in each case shall be deemed to be cash for purposes of this provision. Notwithstanding the immediately preceding paragraph, the Company and its Restricted Subsidiaries will be permitted to consummate an Asset Sale without complying with such paragraph if (i) the Company or the applicable Restricted Subsidiary, as the case may be, receives consideration at the time of such Asset Sale at least equal to the fair market value of the assets or other property sold, issued or otherwise disposed of (as evidenced by a resolution of the Company's Board of Directors set forth in an Officers' Certificate delivered to the Trustee) and (ii) at least 75% of the consideration for such Asset Sale constitutes a controlling interest in a Permitted Business, long-term assets used or useful in a Permitted Business and/or cash or Cash Equivalents; provided that any cash or Cash Equivalents received by the Company or any of its Restricted Subsidiaries in connection with any Asset Sale permitted to be consummated under this paragraph shall constitute Net Proceeds subject to the provisions of the next succeeding paragraph. Within 365 days of following the receipt of any Net Cash Proceeds from an of any Asset SaleSale by a Loan Party, the Company may Borrowers shall, and shall cause the applicable Loan Party (with appropriate adjustments to any intercompany loan account balances) to, apply such Net Proceeds, at its option, (i) to repay Senior Debt under a Credit Facility (and to correspondingly reduce commitments with respect thereto in the case of revolving borrowings) or (ii) to the acquisition of a controlling interest in a Permitted Business, the making of a capital expenditure or the acquisition of other long-term assets, in each case, used or useful in a Permitted Business. Pending the final application of any such Net Proceeds, the Company may temporarily reduce Senior Debt or otherwise invest such Net Proceeds in any manner that is not prohibited by this Indenture. Any Net Proceeds from Asset Sales that are not applied or invested as provided in the first sentence of this paragraph shall be deemed to constitute "Excess Proceeds." When the aggregate amount of Excess Proceeds exceeds $10.0 million, the Company shall be required to make an offer to all Holders of Notes and all holders of other pari passu Indebtedness containing provisions similar to those set forth in this Indenture with respect to offers to purchase or redeem such other pari passu Indebtedness with the proceeds of sales of assets (an "Asset Sale Offer") to purchase the maximum principal amount of Notes and such other pari passu Indebtedness that may be purchased out of the Excess Proceeds at an offer price in cash in an amount equal to 100% of the principal amount thereofNet Cash Proceeds received with respect thereto to make prepayments in accordance with Sections 2.10(i); provided, plus accrued that:
(i) no such prepayment shall be required with respect to (A) any Asset Sale permitted by Section 6.05(a), (c), (d) or (f) or, to the extent involving Loan Parties, (h), (B) the disposition of assets subject to a condemnation or eminent domain proceeding or insurance settlement to the extent it does not constitute a Casualty Event, or (C) Asset Sales for fair market value resulting in no more than $1 million in Net Cash Proceeds per Asset Sale (or series of related Asset Sales) and unpaid interest less than $5 million in Net Cash Proceeds in any fiscal year; and
(ii) so long as no Event of Default shall then exist or would arise therefrom, such proceeds of any other Asset Sale shall not be required to be so applied on such date to the extent that the Administrative Borrower shall have provided written notice to the Administrative Agent and Liquidated Damages, if any, thereon the Collateral Agent setting forth a description of the transaction and the anticipated net proceeds therefrom on or prior to such date stating that the Borrowers intend to use such Net Cash Proceeds to purchase assets to be used by the Loan Parties in any Permitted Business or to acquire 100% of the Equity Interests of any Person that owns such assets no later than 270 days following the date of purchasesuch Asset Sale; provided, that (A) if all or any portion of such Net Cash Proceeds shall not be utilized to purchase such assets or acquire such Equity Interests within such 270-day period, such unused portion shall be applied as a mandatory prepayment as provided in accordance with Section 2.10(i) and (B) if the procedures set forth in this Indenture and in Property subject to such Asset Sale constituted Collateral (other pari passu Indebtedness. To than Prepayment Exempt Collateral to the extent that the aggregate amount Net Cash Proceeds received in respect of Notes and such other pari passu Indebtedness tendered all Asset Sales of Prepayment Exempt Collateral does not exceed $5 million in any four consecutive fiscal quarters of Holdings commencing with the fiscal quarter beginning October 1, 2010), then all Property purchased with the Net Cash Proceeds thereof pursuant to an Asset Sale Offer is less than the Excess Proceeds, the Company may use any remaining Excess Proceeds for any purpose not otherwise prohibited by this Indenture. If the aggregate principal amount of Notes and such other pari passu Indebtedness surrendered by Holders thereof exceeds the amount of Excess Proceeds, the Trustee shall select the Notes and such other pari passu Indebtedness to be purchased on a pro rata basis. Upon completion of an Asset Sale Offer, the amount of Excess Proceeds Section 2.10(c)(ii) shall be reset at zeromade subject to the Lien of the applicable Security Documents in favor of the Collateral Agent, for its benefit and for the benefit of the other Secured Parties in accordance with Sections 5.11 and 5.12.
Appears in 1 contract
Sources: Credit Agreement (Massey Energy Co)
Asset Sales. The Company shall not, and shall not permit ----------- any of its Restricted Subsidiaries to, consummate an Asset Sale unless (i) the Company (or such the Restricted Subsidiary, as the case may be, ) receives consideration at the time of such Asset Sale at least equal to the fair market value (evidenced by a resolution of the Board of Directors set forth in an Officers' Certificate delivered to the Trustee) of the assets or Equity Interests issued or sold or otherwise disposed of and (ii) at least 75% of the consideration therefor received by the Company or such Restricted Subsidiary is in the form of cash or Cash Equivalents; provided -------- that the amount of (ax) any liabilities (as shown on the Company's or such Restricted Subsidiary's most recent balance sheet) of the Company or such any Restricted Subsidiary (other than contingent liabilities and liabilities that are by their terms subordinated to the Notes or any guarantee thereofSecurities or, in the case of liabilities of a Guarantor, the Security Guarantee of such Guarantor) that are assumed by the transferee of any such assets pursuant to a customary novation agreement that releases assets, or from which the Company or such and its Restricted Subsidiary from further liabilitySubsidiaries are released in writing by the creditor with respect thereto, and (by) any securities, notes or other obligations received by the Company or any such Restricted Subsidiary from such transferee that are immediately converted by the Company or such Restricted Subsidiary into cash (to the extent of the cash received) and (c) escrowed cash that the Company reasonably believes will within 180 days after receipt shall be released from escrow within 365 days from the date of consummation of such Asset Saledeemed, in each case shall be deemed case, to be cash for purposes of this provision. Notwithstanding the immediately preceding paragraph; provided, the Company and its Restricted Subsidiaries will be permitted to consummate an Asset Sale without complying with such paragraph if (i) the Company or the applicable Restricted Subsidiaryfurther, as the case may behowever, 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 Company's Board of Directors set forth in an Officers' Certificate delivered to the Trustee) and that this clause (ii) at least 75% shall not -------- ------- ------- apply to any sale of the consideration for such Asset Sale constitutes a controlling interest Equity Interests of or other Investments in a Permitted Business, long-term assets used or useful in a Permitted Business and/or cash or Cash Equivalents; provided that any cash or Cash Equivalents received by the Company or any of its Restricted Subsidiaries in connection with any Asset Sale permitted to be consummated under this paragraph shall constitute Net Proceeds subject to the provisions of the next succeeding paragraphUnrestricted Subsidiaries. Within 365 360 days of after the receipt of any Net Proceeds from an Asset Sale, the Company may apply such Net Proceeds, at its option, (ia) to repay Senior Debt, Debt under of any Restricted Subsidiary or Pari Passu Debt (other than Debt owed to the Company or a Credit Facility Subsidiary of the Company, and provided that if the Company -------- shall so reduce Pari Passu Debt, it will equally and ratably make an Asset Sale Offer (in accordance with the procedures set forth in Section 3.09 for an Asset Sale Offer) to all Holders), (b) to invest in properties and to correspondingly reduce commitments with respect thereto assets that will be used or useful in the case business of revolving borrowings) the Company or any of its Subsidiaries or (iic) to the acquisition of a controlling interest in a Permitted Businessanother business, the making of a capital expenditure or the acquisition of other long-term assets, in each case, that will be used or useful in a Permitted Business. Pending the final application business of any such Net Proceeds, the Company may temporarily reduce Senior Debt or otherwise invest any of its Restricted Subsidiaries; provided that if during such 360-day period the Company or a -------- Restricted Subsidiary enters into a definitive agreement committing it to apply such Net Proceeds in any manner that is accordance with the requirements of clause (b) or (c) such 360-day period will be extended for a period not prohibited by this Indentureto exceed 180 days with respect to the amount of Net Proceeds so committed until required to be paid in accordance with such agreement (or, if earlier, until termination of such agreement). Any Net Proceeds from Asset Sales that are not applied or invested as provided in the first sentence of this paragraph shall will be deemed to constitute "Excess Proceeds." When the aggregate amount of Excess Proceeds (including Excess Proceeds under the Old Indenture) exceeds $10.0 10 million, the Company shall be required to (i) make an offer to all Holders of Notes Securities, and all holders (ii) prepay, purchase or redeem (or make an offer to do so) any other Pari Passu Debt of other pari passu Indebtedness containing the Company in accordance with provisions similar requiring the Company to those set forth in this Indenture with respect to offers to prepay, purchase or redeem such other pari passu Indebtedness Debt with the proceeds from any Asset Sales (or offer to do so), pro rata in proportion to the respective principal amounts (or accreted value, as applicable) of sales the Securities and such other Debt required to be prepaid, purchased or redeemed or tendered for, in the case of assets the Securities pursuant to such offer (an "Asset Sale Offer") ), to purchase the maximum principal amount of Notes and such other pari passu Indebtedness Securities that may be purchased out of such pro rata portion of the Excess Proceeds Proceeds, at an offer 44 price in cash in an amount equal to 100% of the their principal amount thereof, plus accrued and unpaid interest and Liquidated DamagesDamages (or, if prior to the Full Accretion Date, 100% of the Accreted Value thereof on the date of purchase, plus Liquidated Damages (if any, thereon ) to the date of purchasepurchase subject to the right of Holders of record on a record date to receive interest on the relevant interest payment date, in accordance with the procedures set forth in this Indenture and in such other pari passu IndebtednessSection 3.09). To the extent that the aggregate principal amount (or, if prior to the Full Accretion Date, the aggregate Accreted Value) of Notes Securities and such other pari passu Indebtedness Pari Passu Debt tendered pursuant to an Asset Sale Offer or other offer is less than the Excess Proceeds, the Company may use any remaining Excess Proceeds for any purpose not otherwise prohibited by this Indenturegeneral corporate purposes. If the aggregate principal amount (or Accreted Value, as the case may be) of Notes and such other pari passu Indebtedness Securities surrendered by Holders thereof exceeds the amount pro rata portion of such Excess ProceedsProceeds to be used to purchase Securities, the Trustee shall select the Notes and such other pari passu Indebtedness Securities to be purchased on a pro rata basis. Upon completion of an Asset Sale Offersuch offer to purchase, the amount of Excess Proceeds shall be reset at zero.
Appears in 1 contract
Asset Sales. The Company shall will not, and shall will not permit any Restricted Subsidiary of its the Company, Restricted Subsidiaries Affiliate or Restricted Subsidiary of a Restricted Affiliate to, consummate engage in an Asset Sale unless (i) no Event of Default is existing or no Default or Event of Default would arise by virtue of such Asset Sale, (ii) the Company (or such the applicable Restricted SubsidiarySubsidiary or Restricted Affiliate, as the case may be, ) receives consideration at the time of such Asset Sale at least equal to the fair market value (evidenced by (x) a resolution of the Board of Directors set forth in so long as the Company is a publicly-traded entity or (y) an Officers' Certificate delivered opinion as to the Trusteefairness of the transaction from a financial point of view by an investment banking firm of national standing if the Company is not a publicly-traded entity) of the assets or Equity Interests issued or sold or otherwise disposed of and (iiiii) at least 7585% of the consideration therefor received by the Company or such Restricted Subsidiary or Restricted Affiliate is in the form of cash or Cash Equivalentsreadily marketable cash equivalents; provided provided, however, that the amount of (aA) any liabilities (of the Company, any Restricted Subsidiary or Restricted Affiliate as shown on the Company's or such Restricted Subsidiary's or Restricted Affiliate's most recent balance sheet) of sheet or in the Company or such Restricted Subsidiary (other than contingent liabilities and liabilities that are by their terms subordinated to the Notes or any guarantee thereof) notes thereto that are assumed by the transferee of any such assets pursuant to a customary novation agreement that releases the Company or such Restricted Subsidiary from further liability, asset sale and (bB) any securities, notes or other obligations received by the Company or such Restricted Subsidiary or Restricted Affiliate from such transferee that are immediately converted or are converted within 60 days by the Company or such Restricted Subsidiary or Restricted Affiliate into cash (to the extent of the cash received) and (c) escrowed cash that the Company reasonably believes will be released from escrow within 365 days from the date of consummation of such Asset Sale), in each case shall be deemed to be cash for purposes of this provisionparagraph. Notwithstanding the immediately preceding paragraph, the Company and its Restricted Subsidiaries will be permitted The foregoing shall not apply to consummate an Asset Sale without complying with such paragraph if (i) the Company or the applicable Restricted Subsidiary, as the case may be, receives consideration at the time of such Asset Sale at least equal to the fair market value of the assets a sale or other property sold, issued or otherwise disposed transfer of (as evidenced by a resolution of the Company's Board of Directors set forth in an Officers' Certificate delivered to the Trustee) and (ii) at least 75% of the consideration for such Asset Sale constitutes a controlling any direct interest in a Permitted Business, long-term assets used or useful OPI which is prohibited in a Permitted Business and/or cash or Cash Equivalents; provided that any cash or Cash Equivalents received by the Company or any of its Restricted Subsidiaries in connection with any Asset Sale permitted to be consummated under this paragraph shall constitute Net Proceeds subject to the provisions of the next succeeding paragraphall instances. Within 365 days of the receipt of any Any Net Proceeds from an Asset Sale, the Company may apply such Net Proceeds, at its option, (i) to repay Senior Debt under a Credit Facility (and to correspondingly reduce commitments with respect thereto in the case of revolving borrowings) or (ii) to the acquisition of a controlling interest in a Permitted Business, the making of a capital expenditure or the acquisition of other long-term assets, in each case, used or useful in a Permitted Business. Pending the final application of any such Net Proceeds, the Company may temporarily reduce Senior Debt or otherwise invest such Net Proceeds in any manner that is not prohibited by this Indenture. Any Net Proceeds from Asset Sales Sale that are not applied or invested as provided within 12 months after such Asset Sale to make a Permitted Investment (other than an Investment in the first sentence of this paragraph shall Cash Equivalents) will be deemed to constitute "Excess Proceeds." Pending final application of any Net Proceeds of an Asset Sale to a Permitted Investment (other than Cash Equivalents) or to an Asset Sale Offer, such Net Proceeds may only be invested in Cash Equivalents. When the aggregate amount of Excess Proceeds exceeds $10.0 million5 million and upon completion of the Asset Sale Offer required under the Outstanding Notes Indenture, the Company shall will be required to make an offer to all Holders of Notes and all holders of other pari passu Indebtedness containing provisions similar to those set forth in this Indenture with respect to offers to purchase or redeem such other pari passu Indebtedness with the proceeds of sales of assets (an "Asset Sale Offer") to purchase the maximum principal amount of Notes and such other pari passu Indebtedness that may be purchased out of the Excess Proceeds Proceeds, at an offer price in cash in an amount equal to 100% of the principal amount thereof, Accreted Value thereof as of the date of purchase plus accrued and unpaid interest and Liquidated DamagesDamages thereon, if any, thereon to the date of purchase, in accordance with the procedures set forth in this Indenture and in such other pari passu IndebtednessIndenture. To the extent that the aggregate amount Accreted Value of Notes and such other pari passu Indebtedness tendered pursuant to an Asset Sale Offer is less than the Excess ProceedsProceeds to be applied to purchase Notes, the Company may use any remaining Excess Proceeds for any purpose not otherwise prohibited permitted by the other provisions of this Indenture. If the aggregate principal amount Accreted Value of Notes and such other pari passu Indebtedness surrendered by Holders thereof exceeds the amount of Excess Proceeds, the Trustee shall Trustee, upon its receipt from the Company of notice and 48 57 instruction, will select the Notes and such other pari passu Indebtedness to be purchased on a pro rata basisbasis with appropriate adjustments so that only Notes in authorized denominations will be purchased. Upon completion of an each Asset Sale Offer, the amount of Excess Proceeds shall be reset at zero. The Company will comply with the requirements of Rule 14e-1 under the Exchange Act and any other securities laws and regulations thereunder to the extent such laws and regulations are applicable to an Asset Sale Offer. Notwithstanding the foregoing, to the extent that the Company or any of its Restricted Subsidiaries or Restricted Affiliates receives securities or other noncash property or assets as proceeds of an Asset Sale (which proceeds shall not exceed 25% of the total initial consideration), such securities and other noncash proceeds shall not be treated as Net Proceeds of an Asset Sale unless and until the Company receives cash or Cash Equivalents from a sale, repayment, exchange, redemption or retirement of, or extraordinary dividend or return of capital on, such securities or other noncash property and then shall be treated as Net Proceeds only to the extent of the cash or Cash Equivalents received.
Appears in 1 contract
Sources: Indenture (Cellular Communications International Inc)
Asset Sales. The Company shall not, and shall not permit any of its Restricted Subsidiaries to, consummate an Asset Sale unless (i) the Company or such Restricted Subsidiary, as the case may be, receives consideration at the time of such Asset Sale at least equal to the fair market value (evidenced by a resolution of the Board of Directors set forth in an Officers' Certificate delivered to the Trustee) of the assets or Equity Interests issued or sold or otherwise disposed of and (ii) at least 75% of the consideration therefor received by the Company or such Restricted Subsidiary is in the form of cash or Cash Equivalents; provided that the amount of (a) any liabilities (as shown on the Company's or such Restricted Subsidiary's most recent balance sheet) of the Company or such Restricted Subsidiary (other than contingent liabilities and liabilities that are by their terms subordinated to the Notes or any guarantee thereof) that are assumed by the transferee of any such assets pursuant to a customary novation agreement that releases the Company or such Restricted Subsidiary from further liability, (b) any securities, notes or other obligations received by the Company or such Restricted Subsidiary from such transferee that are immediately converted by the Company or such Restricted Subsidiary into cash (to the extent of the cash received) and (c) escrowed cash that the Company reasonably believes will be released from escrow within 365 days from the date of consummation of such Asset Sale, in each case shall be deemed to be cash for purposes of this provision. Notwithstanding the immediately preceding paragraph, the Company and its Restricted Subsidiaries will be permitted to consummate an Asset Sale without complying with such paragraph if (i) the Company or the applicable Restricted Subsidiary, as the case may be, receives consideration at the time of such Asset Sale at least equal to the fair market value of the assets or other property sold, issued sold or otherwise disposed of (as evidenced determined in good faith by a resolution of the Company's Board of Directors), (ii) at least 75% of the consideration received by the Company or the Restricted Subsidiary, as the case may be, from such Asset Sale shall be cash or Cash Equivalents; provided that the amount of (a) any liabilities (as shown on the Company's or such Restricted Subsidiary's most recent balance sheet) of the Company or any such Restricted Subsidiary (other than liabilities that are by their terms subordinated to the Notes) that are assumed by the transferee of any such assets, (b) any notes or other obligations received by the Company or any such Restricted Subsidiary from such transferee that are immediately converted by the Company or such Restricted Subsidiary into cash (to the extent of the cash received) and (c) any Designated Noncash Consideration received by the Company or any of its Restricted Subsidiaries in such Asset Sale having an aggregate fair market value, taken together with all other Designated Noncash Consideration received pursuant to this clause (c) that is at that time outstanding, not to exceed 10% of Total Assets at the time of the receipt of such Designated Noncash Consideration (with the fair market value of each item of Designated Noncash Consideration being measured at the time received and without giving effect to subsequent changes in value), shall be deemed to be cash for the purposes of this provision, and (iii) upon the consummation of an Asset Sale, the Company shall apply, or cause such Restricted Subsidiary to apply, the Net Cash Proceeds relating to such Asset Sale within 365 days of receipt thereof either (A) to repay any Senior Debt and, in the case of any Senior Debt under any revolving credit facility, effect a commitment reduction under such revolving credit facility, (B) to reinvest in Productive Assets, or (C) a combination of prepayment, repurchase and investment permitted by the foregoing clauses (iii)(A) and (iii)(B). Pending the final application of any such Net Cash Proceeds, the Company or such Restricted Subsidiary may temporarily reduce Indebtedness under a revolving credit facility, if any, or otherwise invest such Net Cash Proceeds in Cash Equivalents. On the 366th day after an Asset Sale or such earlier date, if any, as the Board of Directors of the Company or of such Restricted Subsidiary determines not to apply the Net Cash Proceeds relating to such Asset Sale as set forth in an Officers' Certificate delivered to clauses (iii)(A), (iii)(B) or (iii)(C) of the Trusteenext preceding sentence (each, a "Net Proceeds Offer Trigger Date"), the aggregate amount of Net Cash Proceeds that have not been applied on or before such Net Proceeds Offer Trigger Date as permitted in clauses (iii)(A), (iii)(B) and (iiiii)(C) of the next preceding sentence (each a "Net Proceeds Offer Amount") shall be applied by the Company or such Restricted Subsidiary to make an offer to purchase (the "Net Proceeds Offer") on a date (the "Net Proceeds Offer Payment Date") not less than 30 nor more than 45 days following the applicable Net Proceeds Offer Trigger Date, from all Holders on a pro rata basis that amount of Notes equal to the Net Proceeds Offer Amount at a price equal to 100% of the Accreted Value thereon on the date fixed for the closing of such offer plus accrued and unpaid Liquidated Damages thereon, if any (if prior to the Full Accretion Date), or 100% of the principal amount of the Notes to be purchased, plus accrued and unpaid interest and Liquidated Damages thereon, if any, to the date of purchase (if after the Full Accretion Date); provided, however, that if at any time any non-cash consideration (including any Designated Noncash Consideration) received by the Company or any Restricted Subsidiary of the Company, as the case may be, in connection with any Asset Sale is converted into or sold or otherwise disposed of for cash (other than interest received with respect to any such non-cash consideration), then such conversion or disposition shall be deemed to constitute an Asset Sale hereunder and the Net Cash Proceeds thereof shall be applied in accordance with this covenant. Notwithstanding the foregoing, if a Net Proceeds Offer Amount is less than $10.0 million, the application of the Net Cash Proceeds constituting such Net Proceeds Offer Amount to a Net Proceeds Offer may be deferred until such time as such Net Proceeds Offer Amount plus the aggregate amount of all Net Proceeds Offer Amounts arising subsequent to the Net Proceeds Offer Trigger Date relating to such initial Net Proceeds Offer Amount from all Asset Sales by the Company and its Restricted Subsidiaries aggregates at least $10.0 million, at which time the Company or such Restricted Subsidiary shall apply all Net Cash Proceeds constituting all Net Proceeds Offer Amounts that have been so deferred to make a Net Proceeds Offer (the first date the aggregate of all such deferred Net Proceeds Offer Amounts is equal to $10.0 million or more shall be deemed to be a "Net Proceeds Offer Trigger Date"). Notwithstanding the two immediately preceding paragraphs, the Company and its Restricted Subsidiaries will be permitted to consummate an Asset Sale without complying with such paragraphs to the extent (i) at least 75% of the consideration for such Asset Sale constitutes a controlling interest Productive Assets, cash, Cash Equivalents and/or Marketable Securities and (ii) such Asset Sale is for fair market value (as determined in a Permitted Business, long-term assets used or useful in a Permitted Business and/or cash or Cash Equivalentsgood faith by the Company's Board of Directors); provided that any cash or Cash Equivalents consideration not constituting Productive Assets received by the Company or any of its Restricted Subsidiaries in connection with any Asset Sale permitted to be consummated under this paragraph shall constitute Net Proceeds be subject to the provisions of the next succeeding paragraph. Within 365 days of the receipt of any Net Proceeds from an Asset Sale, the Company may apply such Net Proceeds, at its option, (i) to repay Senior Debt under a Credit Facility (and to correspondingly reduce commitments with respect thereto in the case of revolving borrowings) or (ii) to the acquisition of a controlling interest in a Permitted Business, the making of a capital expenditure or the acquisition of other long-term assets, in each case, used or useful in a Permitted Business. Pending the final application of any such Net Proceeds, the Company may temporarily reduce Senior Debt or otherwise invest such Net Proceeds in any manner that is not prohibited by this Indenture. Any Net Proceeds from Asset Sales that are not applied or invested as provided in the first sentence of this paragraph shall be deemed to constitute "Excess Proceeds." When the aggregate amount of Excess Proceeds exceeds $10.0 million, the Company shall be required to make an offer to all Holders of Notes and all holders of other pari passu Indebtedness containing provisions similar to those set forth in this Indenture with respect to offers to purchase or redeem such other pari passu Indebtedness with the proceeds of sales of assets (an "Asset Sale Offer") to purchase the maximum principal amount of Notes and such other pari passu Indebtedness that may be purchased out of the Excess Proceeds at an offer price in cash in an amount equal to 100% of the principal amount thereof, plus accrued and unpaid interest and Liquidated Damages, if any, thereon to the date of purchase, in accordance with the procedures set forth in this Indenture and in such other pari passu Indebtednesstwo preceding paragraphs. To the extent that the aggregate amount provisions of Notes and such other pari passu Indebtedness tendered pursuant to an any securities laws or regulations conflict with the Asset Sale Offer is less than the Excess Proceedsprovisions of this Indenture, the Company may use any remaining Excess Proceeds for any purpose shall comply with the applicable securities laws and regulations and shall not otherwise prohibited by this Indenture. If be deemed to have breached its obligations under the aggregate principal amount of Notes and such other pari passu Indebtedness surrendered by Holders thereof exceeds the amount of Excess Proceeds, the Trustee shall select the Notes and such other pari passu Indebtedness to be purchased on a pro rata basis. Upon completion of an Asset Sale Offer, the amount provisions of Excess Proceeds shall be reset at zerothis Indenture by virtue thereof.
Appears in 1 contract
Sources: Indenture (Sealy Corp)
Asset Sales. The Company shall notNo later than the first Business Day following the date of receipt by Parent, and shall not permit the Borrower or any of its Restricted their respective Subsidiaries to, consummate an of any Net Cash Proceeds in excess of $1,000,000 in respect of any Asset Sale unless (other than Asset Sales permitted by Section 6.08 (h), (i) or (k)), the Company or Borrower shall give written notice to the Administrative Agent of such Restricted Subsidiary, Asset Sale and prepay the Loans in an aggregate amount equal to such 100% of the amount of such Net Cash Proceeds in respect of such Asset Sale no later than the fourth Business Day following the date of receipt of such Net Cash Proceeds; provided that (i) so long as the case may be, receives consideration no Event of Default shall have occurred and be Continuing at the time of receipt of such Asset Sale at least equal to the fair market value (evidenced by a resolution of the Board of Directors set forth in an Officers' Certificate delivered to the Trustee) of the assets or Equity Interests issued or sold or otherwise disposed of proceeds and (ii) at least 75% upon written notice to the Administrative Agent, directly or through one or more of its Subsidiaries, the Borrower shall have the option to invest such Net Cash Proceeds within two hundred seventy (270) days of receipt thereof in assets of the consideration therefor received general type owned by the Company or such Restricted Subsidiary is used in the form business of cash or Cash Equivalents; the Borrower and its Subsidiaries (provided that the amount of (a) any liabilities (as shown on the Company's or such Restricted Subsidiary's most recent balance sheet) of the Company or such Restricted Subsidiary (other than contingent liabilities and liabilities that are by their terms subordinated if, prior to the Notes expiration of such two hundred seventy (270) day period, the Borrower, directly or any guarantee thereof) that are assumed by the transferee of any through its Subsidiaries, shall have entered into a binding agreement providing for such assets pursuant to a customary novation agreement that releases the Company investment on or such Restricted Subsidiary from further liability, (b) any securities, notes or other obligations received by the Company or such Restricted Subsidiary from such transferee that are immediately converted by the Company or such Restricted Subsidiary into cash (prior to the extent expiration of the cash receivedan additional ninety (90) and day period, such two hundred seventy (c270) escrowed cash that the Company reasonably believes will day period shall be released from escrow within 365 days from extended to the date of consummation of provided for such Asset Sale, investment in each case shall be deemed to be cash for purposes of this provisionsuch binding agreement). Notwithstanding the immediately preceding paragraphforegoing, the Company and its Restricted Subsidiaries will be permitted to consummate an Asset Sale without complying with such paragraph if (i) the Company or the applicable Restricted Subsidiaryany Lender may elect, as the case may be, receives consideration at the time of such Asset Sale at least equal by notice to the fair market value of the assets or other property sold, issued or otherwise disposed of Administrative Agent by telephone (as evidenced confirmed by a resolution of the Company's Board of Directors set forth in an Officers' Certificate delivered to the Trustee) and (iifacsimile) at least 75% of two Business Days prior to the consideration for such Asset Sale constitutes a controlling interest in a Permitted Businessprepayment date, long-term assets used or useful in a Permitted Business and/or cash or Cash Equivalents; provided that any cash or Cash Equivalents received by the Company to decline all or any portion of any prepayment of its Restricted Subsidiaries in connection with any Asset Sale permitted Loans pursuant to be consummated under this paragraph shall constitute Net Proceeds subject to the provisions of the next succeeding paragraph. Within 365 days of the receipt of any Net Proceeds from an Asset Sale, the Company may apply such Net Proceeds, at its option, (i) to repay Senior Debt under a Credit Facility (and to correspondingly reduce commitments with respect thereto in the case of revolving borrowings) or (ii) to the acquisition of a controlling interest in a Permitted Business, the making of a capital expenditure or the acquisition of other long-term assetsSection 2.11(b), in each case, used or useful in a Permitted Business. Pending the final application of any such Net Proceeds, the Company may temporarily reduce Senior Debt or otherwise invest such Net Proceeds in any manner that is not prohibited by this Indenture. Any Net Proceeds from Asset Sales that are not applied or invested as provided in the first sentence of this paragraph shall be deemed to constitute "Excess Proceeds." When which case the aggregate amount of Excess Proceeds exceeds $10.0 million, the Company prepayment that would have been applied to prepay Loans but was so declined shall be required to make an offer to all Holders of Notes and all holders of other pari passu Indebtedness containing provisions similar to those set forth in this Indenture with respect to offers to purchase or redeem such other pari passu Indebtedness with retained by the proceeds of sales of assets (an "Asset Sale Offer") to purchase the maximum principal amount of Notes and such other pari passu Indebtedness that may be purchased out of the Excess Proceeds at an offer price in cash in an amount equal to 100% of the principal amount thereof, plus accrued and unpaid interest and Liquidated Damages, if any, thereon to the date of purchase, in accordance with the procedures set forth in this Indenture and in such other pari passu Indebtedness. To the extent that the aggregate amount of Notes and such other pari passu Indebtedness tendered pursuant to an Asset Sale Offer is less than the Excess Proceeds, the Company may use any remaining Excess Proceeds for any purpose not otherwise prohibited by this Indenture. If the aggregate principal amount of Notes and such other pari passu Indebtedness surrendered by Holders thereof exceeds the amount of Excess Proceeds, the Trustee shall select the Notes and such other pari passu Indebtedness to be purchased on a pro rata basis. Upon completion of an Asset Sale Offer, the amount of Excess Proceeds shall be reset at zeroBorrower.
Appears in 1 contract
Sources: Senior Secured Term Loan Facility Agreement (Ocwen Financial Corp)
Asset Sales. The (a) No Guarantor will, and the Company shall not, and shall cause the Guarantors not permit any of its Restricted Subsidiaries to, consummate an Asset Sale unless (i) the Company in a single transaction or such Restricted Subsidiarya series of related transactions, as the case may besell, receives consideration at the time of such Asset Sale at least equal to the fair market value (evidenced by a resolution of the Board of Directors set forth in an Officers' Certificate delivered to the Trustee) of the assets or Equity Interests issued or sold lease, assign, transfer, convey or otherwise disposed dispose of and any Collateral owned by such Guarantor (ii) at least 75% of including through the consideration therefor received sale by the Company or such Restricted Subsidiary is in its Subsidiaries of the form Equity Interests of cash or Cash Equivalentsany Guarantor) (each of the forgoing, an “Asset Sale”); provided that the amount of following shall not be deemed an Asset Sale:
(a1) any liabilities (as shown on the Company's sale, lease, assignment, transfer, conveyance or such Restricted Subsidiary's most recent balance sheet) of the Company or such Restricted Subsidiary (other than contingent liabilities and liabilities that are by their terms subordinated to the Notes or any guarantee thereof) that are assumed by the transferee disposition of any such assets pursuant to a customary novation agreement that releases the Company or such Restricted Subsidiary from further liability, (b) any securities, notes or other obligations received by the Company or such Restricted Subsidiary from such transferee that are immediately converted by the Company or such Restricted Subsidiary into cash (to the extent of the cash received) and (c) escrowed cash that the Company reasonably believes will be released from escrow within 365 days from the date of consummation of such Asset Sale, in each case shall be deemed to be cash for purposes of this provision. Notwithstanding the immediately preceding paragraph, the Company and its Restricted Subsidiaries will be permitted to consummate an Asset Sale without complying with such paragraph if (i) the Company or the applicable Restricted Subsidiary, as the case may be, receives consideration Collateral at the time of such Asset Sale at least equal to no less than the fair market value of the assets such Collateral for cash or Cash Equivalents, so long as, on a pro forma basis for such sale, lease, conveyance or other property disposition, the First Lien LTV Ratio is not greater than 0.375 to 1.00; provided that the Appraised Value of the Collateral sold, issued leased, transferred or otherwise disposed of pursuant to this sub-clause (as evidenced by a resolution 1) shall not exceed $9.5 billion in the aggregate (with the aggregate value of such Collateral for purposes of calculating utilization of this basket being determined pursuant to the definition “Appraised Value” at the time of consummation thereof without giving any effect to subsequent changes in value of the Company's Board applicable assets) and; provided, further, that no such sale, lease, assignment, transfer conveyance or other disposition shall be made to any Affiliate of Directors such Guarantor other than another Guarantor or a Spectrum Joint Venture; provided, further, that any sale, assignment, transfer, conveyance or disposal of any Collateral to a Spectrum Joint Venture (a) shall be made at no less than the Appraised Value of such Collateral for cash and (b) any Net Proceeds or Specified Net Proceeds resulting therefrom shall be applied as set forth in an Officers' Certificate delivered to under this Section 4.09;
(2) the Trustee) and (ii) at least 75% sale, lease, assignment, transfer, conveyance or other disposition of any Collateral between or among the consideration for such Asset Sale constitutes a controlling interest in a Permitted Business, long-term assets used or useful in a Permitted Business and/or cash or Cash EquivalentsGuarantors; provided that the applicable Guarantor receiving Collateral shall have concurrently therewith executed any cash and all documents, financing statements, agreements and instruments, and taken all further action that may be required under applicable law (to the extent required under this EchoStar New Notes Indenture and/or the Security Documents), in order to grant and perfect a first-priority Lien in such Collateral for the benefit of the Holders;
(3) a disposition resulting from any condemnation or Cash Equivalents received by other taking, or temporary or permanent requisition of, any property or asset, any interest therein or right appurtenant thereto, in each case, as the Company result of the exercise of any right of condemnation or eminent domain, including any sale or other transfer to a governmental authority in lieu of, or in anticipation of, any of its Restricted Subsidiaries in connection with the foregoing events; and
(4) any Permitted Asset Sale permitted to be consummated under this paragraph shall constitute Net Proceeds subject to the provisions of the next succeeding paragraph. Swap.
(b) Within 365 45 days of the after receipt of any Net Proceeds from an Asset Saleor, the Company may apply such Specified Net Proceeds, at its optionas applicable, such Guarantor shall:
(i1) so long as any aggregate principal amount of the EchoStar New Notes remain outstanding, apply the Required Amount of such Net Proceeds and Specified Net Proceeds to repay Senior Debt under a Credit Facility (and to correspondingly reduce commitments with respect thereto redeem EchoStar New Notes; provided that the Company shall redeem EchoStar New Notes in the case following order:
(A) first, up to $1.5 billion in aggregate principal amount of revolving borrowingsthe EchoStar New Notes at a redemption price not to exceed 103% plus accrued and unpaid interest,
(B) second, up to $500 million in aggregate principal amount of the EchoStar New Notes at a redemption price not to exceed 105% plus accrued and unpaid interest; and
(C) third, EchoStar New Notes at a redemption price not to exceed (A) during the period prior to the date that is two years after the Issue Date, par plus 60% of the make-whole premium that would be payable pursuant to the make-whole optional redemption provisions under Section 3.07(a) or (iiB) to the acquisition of a controlling interest in a Permitted Businessthereafter, the making then-applicable redemption price specified in Section 3.07(b) as in effect on the Issue Date; or
(2) apply the Required Amount of a capital expenditure or the acquisition of other long-term assets, in each case, used or useful in a Permitted Business. Pending the final application of any such Net Proceeds, the Company may temporarily reduce Senior Debt or otherwise invest such Net Proceeds and Specified Net Proceeds to redeem New Senior Spectrum Secured Exchange Notes pursuant to the optional redemption provisions set forth in Section 3.07(c) of the New Senior Spectrum Secured Exchange Notes Indenture; or
(3) any manner combination of the foregoing. Any Net Proceeds or Specified Net Proceeds that is are not required to be applied as set forth above may be used for any purpose not prohibited by this EchoStar New Notes Indenture. Any Net Proceeds from Asset Sales that are not applied or invested as provided in , subject to the first sentence of this paragraph shall be deemed to constitute "Excess Proceeds." When the aggregate amount of Excess Proceeds exceeds $10.0 million, the Company shall be required to make an offer to all Holders of Notes and all holders of other pari passu Indebtedness containing provisions similar to those set forth covenants contained in this Indenture with respect to offers to purchase or redeem such other pari passu Indebtedness with the proceeds of sales of assets (an "Asset Sale Offer") to purchase the maximum principal amount of EchoStar New Notes and such other pari passu Indebtedness that may be purchased out of the Excess Proceeds at an offer price in cash in an amount equal to 100% of the principal amount thereof, plus accrued and unpaid interest and Liquidated Damages, if any, thereon to the date of purchase, in accordance with the procedures set forth in this Indenture and in such other pari passu Indebtedness. To the extent that the aggregate amount of Notes and such other pari passu Indebtedness tendered pursuant to an Asset Sale Offer is less than the Excess Proceeds, the Company may use any remaining Excess Proceeds for any purpose not otherwise prohibited by this Indenture. If the aggregate principal amount of Notes and such other pari passu Indebtedness surrendered by Holders thereof exceeds the amount of Excess Proceeds, the Trustee shall select the Notes and such other pari passu Indebtedness to be purchased on a pro rata basis. Upon completion of an Asset Sale Offer, the amount of Excess Proceeds shall be reset at zero.
Appears in 1 contract
Asset Sales. The Company Issuers shall not, and shall not permit any of its their Restricted Subsidiaries to, to consummate an Asset Sale Sale, unless (i1) no Default or Event of Default exists or is continuing immediately prior to or after giving effect to such Asset Sale, (2) the Company Issuers or such their Restricted SubsidiarySubsidiaries, as the case may be, receives receive consideration at the time of such Asset Sale at least equal to the fair market value (evidenced as determined by a resolution of the Board of Directors and set forth in an Officers' Certificate delivered to the Trustee) of the assets or Equity Interests issued or sold or otherwise disposed of and (ii3) at least 75% of the consideration therefor received by either of the Company Issuers or such any Restricted Subsidiary Subsidiary, as the case may be, is in the form of cash or Cash Equivalents; provided PROVIDED, HOWEVER, that the amount of (aA) any liabilities (as shown on the Companysuch Issuer's or such Restricted Subsidiary's 's, as the case may be, most recent balance sheetsheet or in the Notes thereto) of the Company Issuers or such any Restricted Subsidiary Subsidiary, as the case may be (other than contingent liabilities and liabilities that are by their terms expressly subordinated to the Notes or any guarantee thereof) Note Guarantee, which may be assumed only if such liabilities are deemed to be Restricted Payments in the case of the Issuer or any Restricted Subsidiary and such Restricted Payment may then be made), that are assumed by the transferee of any such assets pursuant to a customary novation agreement that releases the Company or such Restricted Subsidiary from further liability, and (bB) any securitiesnotes, notes securities 66 or other obligations received by the Company Issuers or such any Restricted Subsidiary Subsidiary, as the case may be, from such transferee that are immediately converted by the Company Issuers or such Restricted Subsidiary Subsidiary, as the case may be, into cash (to the extent of the cash received) and (c) escrowed cash that within 20 Business Days following the Company reasonably believes will be released from escrow within 365 days from the date of consummation closing of such Asset Sale, in each case shall be deemed to be cash only for purposes of satisfying clause (3) of this provisionparagraph and for no other purpose. Notwithstanding the immediately preceding paragraph, the Company and its Restricted Subsidiaries will be permitted to consummate an Asset Sale without complying with such paragraph if (i) the Company Within 360 days after any Issuer's or the applicable 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 's receipt of the assets or other property sold, issued or otherwise disposed Net Proceeds of (as evidenced by a resolution of the Company's Board of Directors set forth in an Officers' Certificate delivered to the Trustee) and (ii) at least 75% of the consideration for such Asset Sale constitutes a controlling interest in a Permitted Business, long-term assets used or useful in a Permitted Business and/or cash or Cash Equivalents; provided that any cash or Cash Equivalents received by the Company or any of its Restricted Subsidiaries in connection with any Asset Sale permitted to be consummated under this paragraph shall constitute Net Proceeds subject to Sale, such Issuer or such Restricted Subsidiary may apply the provisions of the next succeeding paragraph. Within 365 days of the receipt of any Net Proceeds from an such Asset Sale, : (1) to permanently reduce Indebtedness under the Company may apply such Net Proceeds, at its optionBank Credit Facility or other Indebtedness that is not Subordinated Indebtedness, (i2) to repay Senior Debt under a Credit Facility (and to correspondingly reduce commitments with respect thereto in the case of revolving borrowings) an Investment in any one or (ii) to the acquisition of a controlling interest in a Permitted Businessmore business, the making of a capital expenditure or other tangible asset of the acquisition of other long-term assetsIssuers or any Restricted Subsidiary, in each case, engaged, used or useful in a Permitted Businessthe Principal Business and/or (3) for working capital purposes in an aggregate amount not to exceed $20.0 million, in each case, with no concurrent obligation to make an offer to purchase any Notes. Pending the final application of any such Net Proceeds, the Company such Issuer or such Restricted Subsidiary may temporarily reduce Senior Debt Indebtedness or otherwise invest such Net Proceeds in any manner Cash Equivalents which shall be pledged to the Trustee or an agent thereof (including an agent under a Credit Facility) as security for the Holders of Notes with the same relative priority with respect to the other secured creditors as the priority of the Liens securing the asset that is the subject of the Asset Sale except that (i) if such Cash Equivalents are to be used to complete the Phase IA Project, then such Cash Equivalents may be pledged to the Credit Agent as security for the lenders under the Bank Credit Facility prior to the final completion of the Phase IA Project and (ii) such Cash Equivalents need not prohibited by this Indenturebe pledged to the Trustee or an agent thereof (including an agent under a Credit Facility) to the extent that the assets subject to such Asset Sale were not subject to Liens securing the Note Collateral prior to such Asset Sale. Any Net Proceeds from the Asset Sales Sale that are not applied invested or invested used to repay Indebtedness or as working capital within 365 days of receipt as provided in the first sentence of this paragraph shall will be deemed to constitute "Excess ProceedsEXCESS PROCEEDS." When the aggregate amount of Excess Proceeds exceeds $10.0 million, the Company shall be required Issuers shall, subject to any repayment obligations owed to the lenders under any Indebtedness that is secured by Permitted Liens on such assets, including the lenders under the Credit Facilities, make an offer to all Holders of Notes and all holders of other pari passu Indebtedness containing provisions similar to those set forth in this Indenture with respect to offers to purchase or redeem such other pari passu Indebtedness with the proceeds of sales of assets (an "Asset Sale OfferASSET SALE OFFER") to purchase the maximum principal amount of Notes and such other pari passu Indebtedness Notes, that is an integral multiple of $1,000, that may be purchased out of the Excess Proceeds at an Proceeds. The offer price for the Notes in such Asset Sale Offer will be in cash in an amount equal to 100% of the principal amount thereof, plus accrued and unpaid interest and Liquidated Damages, if any, thereon to the date fixed for the closing of purchasesuch offer, in accordance with the procedures set forth in this Indenture and in such other pari passu IndebtednessArticle 3 hereof. The Issuers will commence an Asset Sale Offer with respect to Excess Proceeds within 30 days after the date that Excess Proceeds exceed $10.0 million by mailing the notice required pursuant to the terms of Section 3.10 hereof. To the extent that the aggregate amount of Notes and such other pari passu Indebtedness tendered pursuant to an Asset Sale Offer is less than the applicable Excess Proceeds, the Company Issuers may use any remaining Excess Proceeds for any purpose not otherwise prohibited by this Indenturegeneral corporate purposes. If the aggregate principal amount of Notes and such other pari passu Indebtedness surrendered by Holders thereof exceeds the amount of Excess Proceeds, the Trustee shall select the Notes and such other pari passu Indebtedness to be purchased on a pro rata basisin the manner described in Section 3.02 hereof. Upon completion of an any such Asset Sale Offer, the amount of Excess Proceeds shall be deemed reset at zero. The Issuers may commence an Asset Sale Offer at any time without having to wait for the expiration of the 365-day period. The Issuers or such Restricted Subsidiary shall also grant, subject to Permitted Liens (1) to the lenders under the First Lien Credit Facilities a first priority Lien and (2) to the Trustee, on behalf of the Holders of the Notes, a second priority Lien, in each case, on any properties or assets acquired with the Net Proceeds of any such Asset Sale to the extent that the assets subject to such Asset Sale were subject to Liens securing the Note Collateral prior to such Asset Sale.
Appears in 1 contract
Sources: Indenture (Las Vegas Sands Inc)
Asset Sales. The Company shall not, and shall not permit any of its Restricted Subsidiaries to, to consummate an Asset Sale Sale, unless (i) the Company (or such Restricted Subsidiary, the Subsidiary as the case may be, ) receives consideration at the time of such Asset Sale at least equal to the fair market value (evidenced as conclusively determined by a resolution of the Board of Directors set forth in an Officers' Certificate delivered to the Trustee) of the assets or Equity Interests issued or sold or otherwise disposed of and (ii) except in the case of a sale of Specified Assets, at least 7580% of the consideration therefor received by the Company or such Restricted Subsidiary is in the form of cash or Cash Equivalentscash; provided PROVIDED, HOWEVER, that for purposes of this provision, (x) the amount of (aA) any liabilities (as shown on the Company's or such Restricted Subsidiary's most recent balance sheet) sheet or in the notes thereto), of the Company or such Restricted any Subsidiary (other than contingent liabilities and than, in the case of an Asset Sale by the Company, liabilities that are by their terms subordinated to the Notes or any guarantee thereofSecurities) that are assumed by the transferee of any such assets pursuant to a customary novation agreement that releases the Company or such Restricted Subsidiary from further liability, and (bB) any securities, notes securities or other obligations received by the Company or any such Restricted Subsidiary from such transferee that are immediately converted by the Company or such Restricted Subsidiary into cash (or as to which the Company or such Subsidiary has received at or prior to the extent consummation of the Asset Sale a commitment (which may be subject to customary conditions) from a nationally recognized investment, merchant or commercial bank to convert into cash received) and (c) escrowed cash that within 90 days of the Company reasonably believes will be released from escrow within 365 days from the date of consummation of such Asset Sale, in each case Sale and which are thereafter actually converted into cash within such 90-day period) shall be deemed to be cash (but shall not be deemed to be Net Proceeds for purposes of this provision. Notwithstanding the immediately preceding paragraph, the Company following provisions until reduced to cash); and its Restricted Subsidiaries will be permitted to consummate an Asset Sale without complying with such paragraph if (iy) the Company or the applicable Restricted Subsidiary, as the case may be, receives consideration at the time of such Asset Sale at least equal to the fair market value of any Non-Cash Consideration received by the assets Company or other property sold, issued or otherwise disposed a Subsidiary in any Asset Sale shall be deemed to be cash (but shall not be deemed to be Net Proceeds for purposes of the following provisions until reduced to cash) to the extent that the aggregate fair market value (as evidenced conclusively determined by a resolution of the Company's Board of Directors set forth in an Officers' Certificate delivered to the Trustee) of all Non-Cash Consideration (measured at the time received and (iiwithout giving effect to any subsequent changes in value) at least 75held by the Company immediately after consummation of such Asset Sale does not exceed 10% of the consideration for such Asset Sale constitutes a controlling interest in a Permitted Business, long-term assets used or useful in a Permitted Business and/or cash or Cash Equivalents; provided that any cash or Cash Equivalents received by the Company or any of its Restricted Subsidiaries in connection with any Asset Sale permitted to be consummated under this paragraph shall constitute Net Proceeds subject to the provisions Company's Stockholders' Equity as of the next succeeding paragraphdate of such consummation. Within 365 days of after the receipt of any Net Proceeds from an Asset Sale, the Company may apply such Net Proceeds, at its option, Proceeds (i) to repay purchase one or more Hospitals or Related Businesses and/or a controlling interest in the Capital Stock of a Person owning one or more Hospitals and/or one or more Related Businesses, (ii) to make a capital expenditure or to acquire other tangible assets, in each case, that are used or useful in any business in which the Company is permitted to be engaged pursuant to Section 3.15 hereof, (iii) to permanently reduce Senior Term Debt under or Existing Indebtedness of a Credit Facility Subsidiary or (iv) to permanently reduce Senior Revolving Debt (and to correspondingly reduce commitments with respect thereto thereto), except that up to an aggregate of $200.0 million of Net Proceeds from Asset Sales may be applied after the date hereof to reduce Senior Revolving Debt without a corresponding reduction in the case of revolving borrowings) or (ii) to the acquisition of a controlling interest in a Permitted Business, the making of a capital expenditure or the acquisition of other long-term assets, in each case, used or useful in a Permitted Businesscommitments with respect thereto. Pending the final application of any such Net Proceeds, the Company may temporarily reduce Senior Revolving Debt or otherwise invest such Net Proceeds in any manner that is not prohibited by this Indenturethe terms hereof. Any Net Proceeds from Asset Sales that are not so invested or applied or invested as provided in the first sentence of this paragraph shall be deemed to constitute "Excess Proceeds." When the aggregate amount of Excess Proceeds exceeds $10.0 25.0 million, the Company shall be required to make an offer to all Holders of Notes Securities and all holders of any other pari passu Indebtedness containing of the Company ranking on a parity with the Securities from time to time outstanding with similar provisions similar requiring the Company to those set forth in this Indenture with respect to offers make an offer to purchase or to redeem such other pari passu Indebtedness with the proceeds from any asset sales, PRO RATA in proportion to the respective principal amounts of sales of assets the Securities and such other Indebtedness then outstanding (an a "Asset Sale OfferSENIOR ASSET SALE OFFER") to purchase the maximum principal amount of Notes Securities and such other pari passu Indebtedness that may be purchased out of the Excess Proceeds Proceeds, at an offer price in cash in an amount equal to 100% of the principal amount thereof, thereof plus accrued and unpaid interest and Liquidated Damagesthereon, if any, thereon to the date of purchasepurchase (the "PURCHASE PRICE"), in accordance with the procedures set forth in this Indenture and in such other pari passu IndebtednessSection 2.15 hereof. To the extent that the aggregate amount of Notes Securities and such other pari passu Indebtedness tendered pursuant to an a Senior Asset Sale Offer is less than the Excess Proceeds, the Company may use any remaining Excess Proceeds for any purpose not otherwise prohibited by this general corporate purposes, including an offer to purchase Senior Subordinated Notes pursuant to Section 4.10 of the Senior Subordinated Note Indenture. If the aggregate principal amount of Notes Securities and such other pari passu Indebtedness surrendered by Holders thereof holders pursuant to a Senior Asset Sale Offer exceeds the amount of Excess Proceeds, the Trustee shall select the Notes Securities and such other pari passu Indebtedness to shall be purchased on a pro rata PRO RATA basis. Upon completion of an a Senior Asset Sale Offer, the amount of Excess Proceeds shall be reset at zero.
Appears in 1 contract
Sources: Indenture (Tenet Healthcare Corp)
Asset Sales. The Company shall not, and shall not permit any of its Restricted Subsidiaries to, consummate an Asset Sale unless (i) the Company (or such the Restricted Subsidiary, as the case may be, ) receives consideration at the time of such Asset Sale at least equal to the fair market value (evidenced by a resolution of the Board of Directors set forth in an Officers' Certificate delivered to the Trustee) of the assets or Equity Interests issued or sold or otherwise disposed of and (ii) at least 7580% of the consideration therefor received by the Company or such Restricted Subsidiary is in the form of cash or and/or Cash Equivalents; provided that the amount of (ax) any liabilities (as shown on the Company's or such Restricted Subsidiary's most recent balance sheet) of the Company or such any Restricted Subsidiary (other than contingent liabilities and liabilities that are by their terms subordinated to the Notes or any guarantee thereof) that are assumed by the transferee of any such assets pursuant to a customary novation agreement that releases the Company or such Restricted Subsidiary from further liability, liability and (by) any securities, notes or other obligations received by the Company or any such Restricted Subsidiary from such transferee that are immediately are, within 30 days, converted by the Company or such Restricted Subsidiary into cash (to the extent of the cash received) and (c) escrowed cash that the Company reasonably believes will be released from escrow within 365 days from the date of consummation of such Asset Sale), in each case shall be deemed to be cash for purposes of this provision. Notwithstanding The Company shall not be required to comply with the immediately preceding paragraph, foregoing sentence to the Company and its Restricted Subsidiaries will be permitted to consummate extent an Asset Sale without complying with such paragraph if (i) the Company or the applicable Restricted Subsidiary, as the case may be, receives consideration at the time of such Asset Sale at least equal to the fair market value consists solely of the assets sale or other property sold, issued disposition of obsolete or otherwise disposed of (as evidenced by a resolution of the Company's Board of Directors set forth in an Officers' Certificate delivered to the Trustee) and (ii) at least 75% of the consideration for such Asset Sale constitutes a controlling interest in a Permitted Business, long-term assets used or useful in a Permitted Business and/or cash or Cash Equivalentsdamaged equipment; provided that any cash or Cash Equivalents received by the Company or any of its Restricted Subsidiaries in connection with any Asset Sale permitted to such sale or disposition shall be consummated under applied in accordance with the second paragraph of this paragraph shall constitute Net Proceeds subject to the provisions of the next succeeding paragraphSection 4.10. Within 365 270 days of after the receipt of any Net Proceeds from an Asset Sale, the Company may apply such Net Proceeds, at its option, (ia) to repay Senior Debt Indebtedness under a Credit Facility (and to correspondingly reduce commitments with respect thereto in the case of revolving borrowings) or (iib) to the acquisition of a controlling interest in a another Permitted Business, Business or the making of a capital expenditure or the acquisition of other long-term assets, in each case, used or useful in a Permitted Business. Pending the final application of any such Net Proceeds, the Company may temporarily reduce Senior Debt Indebtedness under any Credit Facility or otherwise invest such Net Proceeds in any manner that is not prohibited by this Indenture. Any Net Proceeds from Asset Sales that are not applied or invested as provided in the first sentence of this paragraph shall will be deemed to constitute "Excess Proceeds." When the aggregate amount of Excess Proceeds exceeds $10.0 5 million, the Company shall be required to make commence an offer to all Holders of Notes and all holders of other pari passu Indebtedness containing provisions similar to those set forth in this Indenture with respect to offers to purchase or redeem such other pari passu Indebtedness with the proceeds of sales of assets (an "Asset Sale Offer") Offer pursuant to 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 Proceeds, at an offer price in cash in an amount equal to 100% of the Accreted Value thereof, plus accrued and unpaid Liquidated Damages, if any, thereon, to the date of purchase (if such offer is prior to the Full Accretion Date) or 100% of the principal amount thereof, plus accrued and unpaid interest and Liquidated Damages, if any, thereon thereon, to the date of purchasepurchase (if such offer is on or after the Full Accretion Date), in accordance with the procedures set forth in this Indenture and in such other pari passu IndebtednessSection 3.09 hereof. To the extent that the Accreted Value or the aggregate amount principal amount, as the case may be, of Notes and such other pari passu Indebtedness tendered pursuant to an Asset Sale Offer is less than the Excess Proceeds, the Company may use any remaining Excess Proceeds for any purpose not otherwise prohibited by this Indenturegeneral corporate purposes. If the Accreted Value or the aggregate principal amount amount, as the case may be, of Notes and such other pari passu Indebtedness surrendered by Holders thereof exceeds the amount of Excess Proceeds, the Trustee shall select the Notes and such other pari passu Indebtedness to be purchased on a pro rata basis. Upon completion of an Asset Sale Offersuch offer to purchase, the amount of Excess Proceeds shall be reset at zero. An Asset Sale Offer shall be made pursuant to the provisions of Section 3.09 hereof. No later than the date which is five (5) Business Days after the date on which the aggregate amount of Excess Proceeds exceeds $5 million, the Company shall notify the Trustee of such Asset Sale Offer in accordance with Section 3.09 hereof and commence or cause to be commenced the Asset Sale Offer on a date no later than fifteen (15) Business Days after such notice (the "Commencement Date"). The Asset Sale Offer shall be made by the Company in compliance with all applicable laws, including, without limitation, Rule 14e-1 under the Exchange Act and the rules thereunder, to the extent applicable, and all other applicable federal and state securities laws.
Appears in 1 contract
Asset Sales. The Company shall not, and shall not permit any Restricted Subsidiary to: (i) sell, lease, convey or otherwise dispose of any assets (including, without limitation, by way of a sale and leaseback or similar arrangement) other than in the ordinary course of business, PROVIDED that the sale, lease, conveyance or other disposition of all or substantially all of the assets of the Company and its Restricted Subsidiaries totaken as a whole shall be governed by the provisions of Sections 4.13 and 5.01 hereof and not by the provisions of this Section 4.10; or (ii) issue or sell Equity Interests of any of the Company's Subsidiaries, consummate 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 aggregate net proceeds in excess of $1 million (each of the foregoing an Asset Sale "ASSET SALE"), unless (ix) the Company or such Restricted Subsidiary, as the case may be, receives consideration at the time of such Asset Sale at least equal to the fair market value (evidenced by a resolution of the Board of Directors set forth in an Officers' Certificate delivered to the Trustee) of the assets or Equity Interests issued or sold or otherwise disposed of and (ii) at least 75% of the consideration therefor received by the Company or such Restricted Subsidiary is in the form of cash or Cash Equivalents; provided that the amount of (a) any liabilities (as shown on the Company's or such Restricted Subsidiary's most recent balance sheet) of the Company or such Restricted Subsidiary (other than contingent liabilities and liabilities that are by their terms subordinated to the Notes or any guarantee thereof) that are assumed by the transferee of any such assets pursuant to a customary novation agreement that releases the Company or such Restricted Subsidiary from further liability, (b) any securities, notes or other obligations received by the Company or such Restricted Subsidiary from such transferee that are immediately converted by the Company or such Restricted Subsidiary into cash (to the extent of the cash received) and (c) escrowed cash that the Company reasonably believes will be released from escrow within 365 days from the date of consummation of such Asset Sale, in each case shall be deemed to be cash for purposes of this provision. Notwithstanding the immediately preceding paragraph, the Company and its Restricted Subsidiaries will be permitted to consummate an Asset Sale without complying with such paragraph if (i) the Company or the applicable Restricted Subsidiary, as the case may be, receives consideration at the time of such Asset Sale at least equal to the fair market value of the assets or other property sold, issued or otherwise disposed of (as evidenced by a resolution of the Company's Board of Directors set forth in an Officers' Certificate delivered to the Trustee) of the assets, or other property or Equity Interests issued or sold or otherwise disposed of in the Asset Sale; and (iiy) at least 100% in the case of a sale of accounts (except for a sale of past-due accounts for collection), and 75% in the case of a sale of other assets, of such consideration is in the consideration for such Asset Sale constitutes a controlling interest in a Permitted Business, long-term assets used or useful in a Permitted Business and/or cash or Cash Equivalents; provided that any form of cash or Cash Equivalents or any combination thereof. Notwithstanding the foregoing, any Restricted Payment or Permitted Investment that is permitted by Section 4.07 hereof shall not be deemed to be an Asset Sale. Notwithstanding the foregoing, the consideration received by the Company or any Restricted Subsidiary in respect of its Restricted Subsidiaries in connection with any transaction which would constitute an Asset Sale permitted to be consummated under this paragraph shall constitute Net Proceeds subject to but for the provisions fact that the fair market value of the next succeeding paragraphproperty of which disposition is made, or the amount of aggregate net proceeds yielded thereby, is less than $1 million, shall, unless such transaction is permitted as a Restricted Payment or Permitted Investment under Section 4.07 hereof, equal to at least the fair market value of such property. Within 365 270 days of the receipt of after any Net Proceeds from an Asset Sale, the Company may or such Subsidiary shall apply the Net Proceeds from such Net ProceedsAsset Sale, at its option, to (ia) to repay Senior Debt under a Credit Facility (and to correspondingly reduce commitments with respect thereto reinvest in the case business of revolving borrowingsthe Company (or any Restricted Subsidiary of the Company) that the Company was engaged in on the date of this Indenture or (iib) permanently reduce borrowings and commitments under Indebtedness permitted to the acquisition of a controlling interest in a Permitted Business, the making of a capital expenditure or the acquisition of other long-term assets, in each case, used or useful in a Permitted Businessbe incurred pursuant to Section 4.09 hereof. Pending the final application of any such Net Proceeds, the Company may temporarily reduce Senior Debt or otherwise invest such Net Proceeds in any manner that is not prohibited by this Indenture. Any Net Proceeds from an Asset Sales that are Sale not applied or invested as provided in the first sentence of this paragraph shall will be deemed to constitute "Excess ProceedsEXCESS PROCEEDS." When Within five Business Days after any date that the aggregate amount of Excess Proceeds exceeds $10.0 million5 million (an "ASSET SALE OFFER TRIGGER DATE"), the Company shall be required to make commence an offer to all Holders of Notes and all holders of other pari passu Indebtedness containing provisions similar to those set forth in this Indenture with respect to offers to purchase or redeem such other pari passu Indebtedness with the proceeds of sales of assets (an "Asset Sale Offer") Offer pursuant to 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 at an offer price in cash in an amount equal to (if prior to the Full Accretion Date) 100% of the Accreted Value thereof on the date of repurchase, plus accrued and unpaid Liquidated Damages thereon, if any, or (if on or after the Full Accretion Date) 100% of the principal amount thereof, plus accrued and unpaid interest and Liquidated DamagesDamages thereon, if any, thereon to the date of purchaserepurchase, in each case in accordance with the procedures set forth in this Indenture and in such other pari passu IndebtednessSection 3.09 hereof. To the extent that the aggregate amount of Notes and such other pari passu Indebtedness tendered pursuant to an Asset Sale Offer is less than the Excess Proceeds, the Company (or such Subsidiary) may use any the remaining Excess Proceeds for any purpose not otherwise prohibited by this Indenture. If the aggregate principal amount of Notes and such other pari passu Indebtedness surrendered by Holders thereof exceeds the amount of Excess Proceeds, the Trustee shall select the Notes and such other pari passu Indebtedness to be purchased on a pro rata basis. Upon completion of an Asset Sale Offersuch offer to purchase, the amount of Excess Proceeds shall be deemed to be reset at zero.
Appears in 1 contract
Sources: Indenture (Coinstar Inc)
Asset Sales. The Company Any and all proceeds derived from the sale or disposition (whether voluntary or involuntary), or on account of damage or destruction, of the real estate, furniture, fixtures, equipment or other fixed assets of the Borrower or any Subsidiary shall notbe paid over to the Agent as and for a mandatory prepayment, such prepayment to be allocated to the Term Loan until repaid in full, and shall not permit then to prepay the Revolving Loans and prefund any outstanding Letters of its Restricted Subsidiaries toCredit; provided, consummate an Asset Sale unless however, that (i) the Company foregoing provisions shall be inapplicable to proceeds received by the Agent under the Collateral Documents if and so long as, pursuant to the terms of the Collateral Documents, the same are to be held by the Agent and disbursed for the restoration, repair or replacement of the property in respect of which such proceeds were received, (ii) no prepayment shall be required with respect to the first $250,000 of net proceeds (i.e., gross proceeds net of out-of-pocket expenses incurred in effecting the sale or other disposition) received during any one calendar year from the sale or other disposition of equipment, furniture and fixtures of the Borrower and its Subsidiaries, taken together, which are worn out, obsolete or, in the good faith judgment of the Borrower or such Restricted Subsidiary, no longer desirable to the efficient conduct of its business as then conducted, (iii) no prepayment shall be required with respect to proceeds received from the sale, damage or destruction of any of the equipment or other assets subject to Liens permitted by Section 8.12 hereof if and to the extent such proceeds are applied to reduce the indebtedness secured by such Liens and (iv) so long as no Default or Event of Default has occurred or is continuing the Borrower or such Subsidiary, as the case may be, receives consideration at may retain the time proceeds derived from the sale, damage or destruction of such Asset Sale at least equal to the fair market value (evidenced by a resolution of the Board of Directors set forth in an Officers' Certificate delivered to the Trustee) of the assets or Equity Interests issued or sold or otherwise disposed of fixtures, furniture and (ii) at least 75% of the consideration therefor received by the Company or such Restricted Subsidiary is in the form of cash or Cash Equivalents; provided that the amount of (a) any liabilities (as shown on the Company's or such Restricted Subsidiary's most recent balance sheet) of the Company or such Restricted Subsidiary (other than contingent liabilities equipment if and liabilities that are by their terms subordinated to the Notes or any guarantee thereof) that are assumed by the transferee of any such assets pursuant to a customary novation agreement that releases the Company or such Restricted Subsidiary from further liability, (b) any securities, notes or other obligations received by the Company or such Restricted Subsidiary from such transferee that are immediately converted by the Company or such Restricted Subsidiary into cash (to the extent that the Borrower or such Subsidiary establishes to the reasonable satisfaction of the cash received) and (c) escrowed cash Agent that the Company reasonably believes will be released from escrow within 365 days from the date of consummation of such Asset Sale, in each case shall be deemed to be cash for purposes of this provision. Notwithstanding the immediately preceding paragraph, the Company and its Restricted Subsidiaries will be permitted to consummate an Asset Sale without complying with such paragraph if (i) the Company or the applicable Restricted Subsidiary, as the case may be, receives consideration at the time of such Asset Sale at least equal to the fair market value of the assets or other property equipment sold, issued damaged, or otherwise disposed of destroyed has been replaced (as evidenced by a resolution of the Company's Board of Directors set forth in an Officers' Certificate delivered to the Trustee) and (ii) at least 75% of the consideration for such Asset Sale constitutes a controlling interest in a Permitted Business, long-term assets used or useful in a Permitted Business and/or cash or Cash Equivalents; provided that any cash or Cash Equivalents received by the Company or any of its Restricted Subsidiaries in connection with any Asset Sale permitted to be consummated under this paragraph shall constitute Net Proceeds subject to the provisions of the next succeeding paragraph. Within 365 days of the receipt of any Net Proceeds from an Asset Sale, the Company may apply such Net Proceeds, at its option, (i) to repay Senior Debt under a Credit Facility (and to correspondingly reduce commitments with respect thereto repaired in the case of revolving borrowingsdamaged property) with fixtures, furniture or equipment of at least equal value and utility to that replaced (ii) to the acquisition of a controlling interest in a Permitted Business, the making of a capital expenditure or the acquisition of other long-term assets, in each case, used or useful in a Permitted Business. Pending the final application of before any such Net Proceeds, damage or destruction) which is subject to a first lien in favor of the Company may temporarily reduce Senior Debt or otherwise invest such Net Proceeds Agent for the benefit of the Lenders. Nothing herein contained shall in any manner that is not prohibited by this Indenture. Any Net Proceeds from Asset Sales that are not applied impair or invested as provided otherwise affect the prohibitions against the sale or other disposition of Collateral contained herein and in the first sentence of this paragraph shall be deemed to constitute "Excess ProceedsCollateral Documents." When the aggregate amount of Excess Proceeds exceeds $10.0 million, the Company shall be required to make an offer to all Holders of Notes and all holders of other pari passu Indebtedness containing provisions similar to those set forth in this Indenture with respect to offers to purchase or redeem such other pari passu Indebtedness with the proceeds of sales of assets (an "Asset Sale Offer") to purchase the maximum principal amount of Notes and such other pari passu Indebtedness that may be purchased out of the Excess Proceeds at an offer price in cash in an amount equal to 100% of the principal amount thereof, plus accrued and unpaid interest and Liquidated Damages, if any, thereon to the date of purchase, in accordance with the procedures set forth in this Indenture and in such other pari passu Indebtedness. To the extent that the aggregate amount of Notes and such other pari passu Indebtedness tendered pursuant to an Asset Sale Offer is less than the Excess Proceeds, the Company may use any remaining Excess Proceeds for any purpose not otherwise prohibited by this Indenture. If the aggregate principal amount of Notes and such other pari passu Indebtedness surrendered by Holders thereof exceeds the amount of Excess Proceeds, the Trustee shall select the Notes and such other pari passu Indebtedness to be purchased on a pro rata basis. Upon completion of an Asset Sale Offer, the amount of Excess Proceeds shall be reset at zero.
Appears in 1 contract
Asset Sales. (a) The Company shall not, and shall not permit any of its Restricted Subsidiaries Subsidiary to, consummate cause, make or suffer to exist an Asset Sale unless Sale, unless:
(i1) the Company or such Restricted Subsidiary, as the case may be, receives consideration at the time of such Asset Sale at least equal to the fair market value (evidenced by a resolution of the Board of Directors set forth in an Officers' Certificate delivered to the Trustee) Fair Market Value of the assets or Equity Interests issued or sold or otherwise disposed of; and
(2) except in the case of and (ii) a Permitted Asset Swap, 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 or Cash Equivalents; provided that . Within 365 days after the amount Company’s or a Restricted Subsidiary’s receipt of the Net Proceeds of any Asset Sale covered by this clause (a) any liabilities (as shown on the Company's Company or such Restricted Subsidiary's most recent balance sheet, at its option, may apply the Net Proceeds from such Asset Sale:
(1) to make one or more offers to the Holders of the Notes (and, at the option of the Company, the holders of other senior Indebtedness) to purchase Notes (and such senior Indebtedness) pursuant to and subject to the conditions contained in this Indenture (each, an “Asset Sale Offer”); provided, however, that in connection with any prepayment, repayment or purchase of Indebtedness pursuant to this clause (1), the Company or such Restricted Subsidiary (other than contingent liabilities and liabilities shall permanently retire such Indebtedness; provided, further, that are by their terms subordinated to the Notes or any guarantee thereof) that are assumed by the transferee of any such assets pursuant to a customary novation agreement that releases if the Company or such Restricted Subsidiary from shall so reduce any senior Indebtedness (other than the Notes), the Company shall equally and ratably reduce Indebtedness under the Notes by making an offer to all Holders of Notes to purchase at a purchase price equal to 100% of the principal amount thereof, plus accrued and unpaid interest and additional interest, if any, the pro rata principal amount of the Notes, such offer to be conducted in accordance with the procedures set forth below for an Asset Sale Offer but without any further liability, limitation in amount;
(b2) to make an investment in (a) any securities, notes one or other obligations received by 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 such Restricted Subsidiary from such transferee that are immediately converted by the Company or such Restricted Subsidiary into cash (to the extent of the cash received) and (c) escrowed cash that the Company reasonably believes will be released from escrow within 365 days from the date of consummation of such Asset Sale, in each case shall be deemed to be cash for purposes of this provision. Notwithstanding the immediately preceding paragraph, the Company and its Restricted Subsidiaries will be permitted to consummate an Asset Sale without complying with such paragraph if (i) the Company or the applicable a Restricted Subsidiary, as the case may be, receives consideration at owning an amount of the time Capital Stock 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 Company's Board of Directors set forth in an Officers' Certificate delivered to the Trustee) and (ii) at least 75% of the consideration for business such Asset Sale that it constitutes a controlling interest in a Permitted Business, long-term assets used or useful in a Permitted Business and/or cash or Cash Equivalents; provided that any cash or Cash Equivalents received by the Company or any of its Restricted Subsidiaries in connection with any Asset Sale permitted to be consummated under this paragraph shall constitute Net Proceeds subject to the provisions of the next succeeding paragraph. Within 365 days of the receipt of any Net Proceeds from an Asset Sale, the Company may apply such Net Proceeds, at its optionSubsidiary, (ib) to repay Senior Debt under a Credit Facility (and to correspondingly reduce commitments with respect thereto in the case of revolving borrowings) capital expenditures or (iic) to the acquisition of a controlling interest in a Permitted Business, the making of a capital expenditure or the acquisition acquisitions of other long-term assets, in each caseof (a), (b) and (c), used or useful in a Permitted Similar Business. Pending the final application ; or
(3) to reduce Indebtedness of any such Net Proceedsa Restricted Subsidiary, other than Indebtedness owed to the Company may temporarily reduce Senior Debt or otherwise invest another Restricted Subsidiary; provided that the acquisition of Indebtedness of a Restricted Subsidiary by the Company shall constitute a reduction in such Net Proceeds in any manner that is not prohibited by this IndentureIndebtedness. Any Net Proceeds from Asset Sales that are not invested or applied or invested as provided and within the time period set forth in the first sentence of this the immediately preceding paragraph shall be deemed to constitute "“Excess Proceeds." ” In the case of clause (2) above, a binding commitment shall be treated as a permitted application of the Net Proceeds from the date of such commitment; provided that (x) such investment is consummated within 635 days after receipt by the Company or any Restricted Subsidiary of the Net Proceeds of any Asset Sale and (y) if such investment is not consummated within the period set forth in subclause (x), the Net Proceeds not so applied will be deemed to be Excess Proceeds. When the aggregate amount of Excess Proceeds exceeds $10.0 25.0 million, the Company shall be required to make an offer Asset Sale Offer to all Holders of Notes and all the Notes, and, if required by the terms of any senior Indebtedness, to the holders of other pari passu Indebtedness containing provisions similar to those set forth in this Indenture with respect to offers to purchase or redeem such other pari passu Indebtedness with the proceeds of sales of assets (an "Asset Sale Offer") senior Indebtedness, to purchase the maximum principal amount of Notes and such other pari passu Indebtedness senior Indebtedness, that are $2,000 or an integral multiple of $1,000 in excess thereof that may be purchased out of the Excess Proceeds at an offer price in cash in an amount equal to 100% of the principal amount thereof, plus accrued and unpaid interest and Liquidated Damagesinterest, if any, thereon to to, but not including, the date fixed for the closing of purchasesuch offer, in accordance with the procedures set forth in this Indenture and in such other pari passu IndebtednessIndenture. To the extent that the aggregate amount of Notes and such other pari passu Indebtedness tendered pursuant to The Company shall commence an Asset Sale Offer is less than the Excess Proceeds, the Company may use any remaining with respect to Excess Proceeds for any purpose not otherwise prohibited by this Indenture. If within 30 days after the aggregate principal amount of Notes and such other pari passu Indebtedness surrendered by Holders thereof exceeds the amount of Excess Proceeds, the Trustee shall select the Notes and such other pari passu Indebtedness to be purchased on a pro rata basis. Upon completion of an Asset Sale Offer, the amount of date that Excess Proceeds shall be reset at zero.exceed
Appears in 1 contract
Sources: Indenture (Aircastle LTD)
Asset Sales. The Company shall not, and shall not permit any of its Restricted Subsidiaries to, consummate an Asset Sale Sale, unless (i) the Company (or such Restricted the Subsidiary, as the case may be, ) receives consideration at the time of such Asset Sale at least equal to the fair market value (evidenced as conclusively determined by a resolution of the Board of Directors set forth in an Officers' Certificate delivered to the Trustee) of the assets or Equity Interests issued or sold or otherwise disposed of and (ii) at least 75% of the consideration therefor received by the Company or such Restricted Subsidiary is in the form of cash or Cash Equivalents; provided that for purposes of this provision, (x) the amount of (aA) any liabilities (as shown on the Company's or such Restricted Subsidiary's most recent balance sheet) sheet of the Company or such Restricted Subsidiary or in the notes thereto), of the Company or such Subsidiary (other than contingent liabilities and liabilities that are by their terms subordinated to the Notes Securities or any guarantee thereofthe Guarantees) that are assumed by the transferee of any such assets pursuant to a customary novation agreement that releases the Company or such Restricted Subsidiary from further liability, and (bB) any securities, notes securities or other obligations received by the Company or any such Restricted Subsidiary from such transferee that are immediately converted by the Company or such Restricted Subsidiary into cash (or as to which the Company or such Subsidiary has received at or prior to the extent consummation of the Asset Sale a commitment (which may be subject to customary conditions) from a nationally recognized investment, merchant or commercial bank to convert into cash received) and (c) escrowed cash that or Cash Equivalents within 90 days of the Company reasonably believes will be released from escrow within 365 days from the date of consummation of such Asset Sale, in each case Sale and which are thereafter actually converted into cash or Cash Equivalents within such 90-day period) shall be deemed to be cash (but shall not be deemed to be Net Proceeds for purposes of this provision. Notwithstanding the immediately preceding paragraph, the Company following provisions until reduced to cash) and its Restricted Subsidiaries will be permitted to consummate an Asset Sale without complying with such paragraph if (iy) the Company or the applicable Restricted Subsidiary, as the case may be, receives consideration at the time of such Asset Sale at least equal to the fair market value of any Non-Cash Consideration received by Beve▇▇▇ ▇▇ a Subsidiary in any Non-Qualified Asset Sale shall be deemed to be cash to the assets or other property sold, issued or otherwise disposed of extent that the aggregate fair market value (as evidenced conclusively determined by a resolution of the Company's Board of Directors set forth in an any Officers' Certificate delivered to the Trustee) and (ii) at least 75% of the consideration for such Asset Sale constitutes a controlling interest in a Permitted Business, long-term assets used or useful in a Permitted Business and/or cash or Cash Equivalents; provided that any cash or Cash Equivalents received by the Company or any of its Restricted Subsidiaries in connection with any Asset Sale permitted to be consummated under this paragraph shall constitute Net Proceeds subject to the provisions of the next succeeding paragraph. Within 365 days of the receipt of any Net Proceeds from an Asset Sale, the Company may apply such Net Proceeds, at its option, (i) to repay Senior Debt under a Credit Facility (and to correspondingly reduce commitments with respect thereto in the case of revolving borrowings) or (ii) to the acquisition of a controlling interest in a Permitted Business, the making of a capital expenditure or the acquisition of other long-term assets, in each case, used or useful in a Permitted Business. Pending the final application of any such Net Proceeds, the Company may temporarily reduce Senior Debt or otherwise invest such Net Proceeds in any manner that is not prohibited by this Indenture. Any Net Proceeds from Asset Sales that are not applied or invested as provided in the first sentence of this paragraph shall be deemed to constitute "Excess Proceeds." When the aggregate amount of Excess Proceeds exceeds $10.0 million, the Company shall be required to make an offer to all Holders of Notes and all holders of other pari passu Indebtedness containing provisions similar to those set forth in this Indenture with respect to offers to purchase or redeem such other pari passu Indebtedness with the proceeds of sales of assets (an "Asset Sale Offer") to purchase the maximum principal amount of Notes and such other pari passu Indebtedness that may be purchased out of the Excess Proceeds at an offer price in cash in an amount equal to 100% of the principal amount thereof, plus accrued and unpaid interest and Liquidated Damages, if any, thereon to the date of purchase, in accordance with the procedures set forth in this Indenture and in such other pari passu Indebtedness. To the extent that the aggregate amount of Notes and such other pari passu Indebtedness tendered pursuant to an Asset Sale Offer is less than the Excess Proceeds, the Company may use any remaining Excess Proceeds for any purpose not otherwise prohibited by this Indenture. If the aggregate principal amount of Notes and such other pari passu Indebtedness surrendered by Holders thereof exceeds the amount of Excess Proceeds, the Trustee shall select the Notes and such other pari passu Indebtedness to be purchased on a pro rata basis. Upon completion of an Asset Sale Offer, the amount of Excess Proceeds shall be reset at zero.Certif-
Appears in 1 contract
Asset Sales. The Company (a) Parent shall not, and shall not permit any of its Restricted Subsidiaries to, consummate an Asset Sale unless Sale, unless:
(i1) the Company Parent or any such Restricted Subsidiary, as the case may be, receives consideration (including by way of relief from, or by any other person (other than Parent or any of its Restricted Subsidiaries) assuming responsibility for, any liabilities, contingent or otherwise) at the time of such Asset Sale at least equal to the fair market value (evidenced as determined in good faith by a resolution the Issuer or any direct or indirect parent of the Board of Directors set forth in an Officers' Certificate delivered to the TrusteeIssuer) of the assets or Equity Interests issued or sold or otherwise disposed of; and
(2) except in the case of and a Permitted Asset Swap, (iix) in any such Asset Sale with a purchase price in excess of $1.0 million, at least 7590% of the aggregate consideration therefor received by the Company Parent or any such Restricted Subsidiary Subsidiary, as the case may be, is in the form of cash or Cash Equivalents and (y) in any such Asset Sale with a purchase price less than or equal to $1.0 million and at least 90% of the aggregate consideration therefor, together with all other Asset Sales since the Issue Date (on a cumulative basis), received by Parent or any such Restricted Subsidiary, as the case may be, is in the form of cash or Cash Equivalents; provided that the amount of (a) any liabilities (as shown on the Company's or such Restricted Subsidiary's most recent balance sheet) of the Company or such Restricted Subsidiary (other than contingent liabilities and liabilities that are by their terms subordinated to the Notes or any guarantee thereof) that are assumed by the transferee of any such assets pursuant to a customary novation agreement that releases the Company or such Restricted Subsidiary from further liability, .
(b) any securities, notes or other obligations received by the Company or such Restricted Subsidiary from such transferee that are immediately converted by the Company or such Restricted Subsidiary into cash (to the extent of the cash received) and (c) escrowed cash that the Company reasonably believes will be released from escrow within 365 days from the date of consummation of such Asset Sale, in each case shall be deemed to be cash for purposes of this provision. Notwithstanding the immediately preceding paragraph, the Company and its Restricted Subsidiaries will be permitted to consummate an Asset Sale without complying with such paragraph if (i) the Company or the applicable Restricted Subsidiary, as the case may be, receives consideration at the time of such Asset Sale at least equal to the fair market value of the assets or other property sold, issued or otherwise disposed of (as evidenced by a resolution of the Company's Board of Directors set forth in an Officers' Certificate delivered to the Trustee) and (ii) at least 75% of the consideration for such Asset Sale constitutes a controlling interest in a Permitted Business, long-term assets used or useful in a Permitted Within 15 Business and/or cash or Cash Equivalents; provided that any cash or Cash Equivalents received by the Company or any of its Restricted Subsidiaries in connection with any Asset Sale permitted to be consummated under this paragraph shall constitute Net Proceeds subject to the provisions of the next succeeding paragraph. Within 365 days of Days after the receipt of any Net Proceeds from an of any Asset Sale, Parent or such Restricted Subsidiary shall apply the Company may apply Net Proceeds from such Net Proceeds, at its option, Asset Sale,
(i1) to repay Senior Debt under a Credit Facility reduce, redeem or repurchase:
(and to correspondingly reduce commitments with respect thereto in the case of revolving borrowings) or (iiA) to the acquisition of a controlling interest in a Permitted Business, the making of a capital expenditure or the acquisition of other long-term assets, in each case, used or useful in a Permitted Business. Pending the final application of any such Net Proceeds, the Company may temporarily reduce Senior Debt or otherwise invest extent such Net Proceeds are received during the first six months following the Issue Date and solely to the extent required under the ABL Intercreditor Agreement, Obligations under the ABL Credit Facility in an aggregate amount not to exceed $5.0 million;
(B) obligations constituting First Lien Obligations permitted to be incurred under the Existing First Lien Notes Indenture;
(C) if no Existing First Lien Notes remain outstanding, the Notes; and
(D) obligations under or in respect of the ABL Credit Facility; provided that this clause (D) shall only be available for the sale of ABL Priority Collateral; or
(2) solely in the event the Net Proceeds are to be applied to effectuate a Permitted Asset Swap, and an Officer’s Certificate certifying the intent to enter into a Permitted Asset Swap is delivered to the Trustee, to purchase Related Business Assets in order to effectuate such Permitted Asset Swap. Notwithstanding anything to the contrary, (a) the Issuer shall not, nor shall it permit any manner Subsidiary to sell, transfer or otherwise dispose of any Material Property (whether pursuant to a sale, lease, license, transfer, investment, restricted payment, dividend or otherwise or relating to the exclusive rights thereto) to any Person that is a Subsidiary that is not prohibited by this Indenture. Any Net Proceeds from Asset Sales that are not applied or invested as provided a Guarantor, other than Permitted Investments and the grant of a non-exclusive license of intellectual property to any Subsidiary in the first sentence ordinary course of this paragraph business for a bona fide business purpose; and (b) no Person that is a Subsidiary that is not a Guarantor shall be deemed own or hold an exclusive license to constitute "Excess Proceedsany Material Property." When the aggregate amount of Excess Proceeds exceeds $10.0 million, the Company shall be required to make an offer to all Holders of Notes and all holders of other pari passu Indebtedness containing provisions similar to those set forth in this Indenture with respect to offers to purchase or redeem such other pari passu Indebtedness with the proceeds of sales of assets (an "Asset Sale Offer") to purchase the maximum principal amount of Notes and such other pari passu Indebtedness that may be purchased out of the Excess Proceeds at an offer price in cash in an amount equal to 100% of the principal amount thereof, plus accrued and unpaid interest and Liquidated Damages, if any, thereon to the date of purchase, in accordance with the procedures set forth in this Indenture and in such other pari passu Indebtedness. To the extent that the aggregate amount of Notes and such other pari passu Indebtedness tendered pursuant to an Asset Sale Offer is less than the Excess Proceeds, the Company may use any remaining Excess Proceeds for any purpose not otherwise prohibited by this Indenture. If the aggregate principal amount of Notes and such other pari passu Indebtedness surrendered by Holders thereof exceeds the amount of Excess Proceeds, the Trustee shall select the Notes and such other pari passu Indebtedness to be purchased on a pro rata basis. Upon completion of an Asset Sale Offer, the amount of Excess Proceeds shall be reset at zero.
Appears in 1 contract
Asset Sales. The Company shall will not, and shall will not permit any of its Restricted Subsidiaries to, consummate (a) 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 Company shall be governed by the provisions of this Indenture set forth under Section 4.18 hereof or Article 5 hereof and not by the provisions of this Section 4.16) or (b) issue or sell Capital Stock of any of its Restricted Subsidiaries, in the case of either clause (a) or (b) above, whether in a single transaction or a series of related transactions that has a fair market value (as determined in good faith by the Board of Directors of the Manager) in excess of $1.0 million or for net cash proceeds of $1.0 million (each of the foregoing, an "Asset Sale Sale"), unless (i) the Company (or such the Restricted Subsidiary, as the case may be, ) receives consideration at the time of such Asset Sale at least equal to the fair market value (evidenced as determined in good faith by a resolution of the Board of Directors set forth in an Officers' Certificate delivered to of the TrusteeManager) of the assets or Equity Interests issued or sold or otherwise disposed of and (ii) at least 75% of the consideration therefor received by the Company or such Restricted Subsidiary is in the form of cash or Cash Equivalentscash equivalents; provided provided, however, that the amount of (aA) any liabilities (as shown on the Company's or such Restricted Subsidiary's most recent balance sheetsheet or in the notes thereto) of the Company or such any Restricted Subsidiary (other than contingent liabilities and liabilities that are by their terms subordinated to the Notes or any guarantee thereof) that are assumed by the transferee of any such assets pursuant to a customary novation agreement that releases the Company or such Restricted Subsidiary from further liability, and (bB) any securities, notes or other obligations received by the Company or any such Restricted Subsidiary from such transferee that are immediately converted by the Company or such Restricted Subsidiary into cash (to the extent of the cash received) and (c) escrowed cash that the Company reasonably believes will be released from escrow within 365 90 days from the date of consummation of such Asset Sale, in each case shall be deemed to be cash for purposes of this provision; and provided further, that the 75% limitation referred to in this clause (ii) 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 75% limitation. Notwithstanding the immediately preceding paragraphforegoing, Asset Sales shall not be deemed to include (a) any transfer of assets or Capital Stock by the Company and or any of its Restricted Subsidiaries will be permitted to consummate an Asset Sale without complying with such paragraph if a Restricted Subsidiary of the Company, (ib) any transfer of assets pursuant to a Permitted Investment, (c) the Company or sale of Timberlands in a like-kind exchange for a like interest in other Timberlands having a fair market value (as determined in good faith by the applicable Restricted Subsidiary, as Board of Directors of the case may be, receives consideration at the time of such Asset Sale Manager) at least equal to the fair market value of the assets or other property sold, issued or otherwise disposed of (as evidenced determined in good faith by a resolution of the Company's Board of Directors set forth of the Manager) of the Timberlands sold, (d) the sale of not more than 10,000 acres in the aggregate of Timberlands designated in good faith by the Board of Directors of the Manager for a higher and better use, (e) a disposition of obsolete equipment in the ordinary course of business, (f) any sale of Capital Stock of, or Indebtedness or other securities of, an Officers' Certificate delivered to the Trustee) Unrestricted Subsidiary, and (iig) at least 75% timber deed, bulk, pay-as-cut and stumpage sales in the ordinary course of business. In the consideration for such Asset Sale constitutes a controlling interest in a Permitted Business, long-term assets used or useful in a Permitted Business and/or cash or Cash Equivalents; provided event that any cash or Cash Equivalents the aggregate Net Proceeds received by the Company or any of its Restricted Subsidiaries in connection from one or more Asset Sales exceed the Adjusted Asset Sales Amount since the Issue Date, within 270 days after the date such aggregate Net Proceeds exceed such amount (or such longer period as may be required to comply with any Asset Sale permitted to be consummated under this paragraph shall constitute Net Proceeds subject to agreement in effect on the provisions of the next succeeding paragraph. Within 365 days of the receipt of any Net Proceeds from an Asset SaleIssue Date), the Company may apply such Net ProceedsCompany, at its option, shall apply the amount of such aggregate Net Proceeds (iless the amount of any such Net Proceeds previously applied during such fiscal year for the purposes set forth in clauses (a) or (b) below) to repay Senior Debt under (a) reduce senior Indebtedness of the Company or Indebtedness of a Credit Facility Restricted Subsidiary (and to correspondingly reduce commitments with respect thereto a permanent reduction of availability in the case of revolving borrowingsthe Working Capital Facility) or (iib) make, or commit, pursuant to a binding written contract (provided that the acquisition contract is consummated substantially in accordance with the terms thereof within 30 days after the end of a controlling interest the 270-day period), to make, an investment in a Permitted Business, the making of a capital expenditure or the acquisition of other long-term assets, in each case, assets used or useful in a Permitted the Business. Pending the final application of any such Net Proceeds, the Company or any Restricted Subsidiary may temporarily reduce Senior Debt borrowings under the Bank Credit Facility or otherwise invest such Net Proceeds in any manner that is not prohibited by this the Indenture. Any such Net Proceeds from Asset Sales that are not applied or invested as provided in the first sentence of this paragraph shall will be deemed to constitute "Excess Proceeds." When the aggregate amount of Excess Proceeds exceeds $10.0 10 million, the Company Issuers shall be required to make an offer to all Holders of Notes and all holders of other pari passu Indebtedness containing provisions similar to those set forth in this Indenture with respect to offers to purchase or redeem such other pari passu Indebtedness with the proceeds of sales of assets (an "Asset Sale Offer") to purchase the maximum principal amount of Notes and such other pari passu Indebtedness that may be purchased out of the Excess Proceeds Proceeds, at an offer price in cash in an amount equal to 100% of the principal amount thereof, thereof plus accrued and unpaid interest and Liquidated Damagesinterest, if any, thereon to the date of purchase, in accordance with the procedures set forth in this Indenture and in such other pari passu IndebtednessIndenture. To the extent that the aggregate amount of Notes and such other pari passu Indebtedness tendered pursuant to an Asset Sale Offer is less than the Excess Proceeds, the Company or any Restricted Subsidiary may use any remaining Excess Proceeds such deficiency for any purpose not otherwise prohibited by this Indenturegeneral business purposes. If the aggregate principal amount of Notes and such other pari passu Indebtedness surrendered by Holders thereof exceeds the amount of Excess Proceeds, the Trustee shall select the Notes and such other pari passu Indebtedness to be purchased on a pro rata basis. Upon completion of an such Asset Sale Offer, the amount of Excess Proceeds shall be reset at zero.
Appears in 1 contract
Sources: Indenture (U S Timberlands Co Lp)
Asset Sales. (a) The Company shall not, and shall not permit any of its Restricted Subsidiaries Subsidiary to, consummate an Asset Sale unless unless:
(i1) the Company Company, or such the Restricted Subsidiary, as the case may be, receives consideration at the time of such the Asset Sale at least equal to the fair market value (evidenced by a resolution of the Board of Directors set forth in an Officers' Certificate delivered to the Trustee) Fair Market Value of the assets or Equity Interests issued or sold or otherwise disposed of and of; and
(ii2) at least 75% of the consideration therefor received in such Asset Sale by the Company or such Restricted Subsidiary is in the form of cash or cash, Cash Equivalents; provided that , Replacement Assets or a combination thereof. For purposes of this clause (3), each of the amount of following shall be deemed to be cash:
(a) any liabilities (Indebtedness or other liabilities, as shown on the Company's ’s or such Restricted Subsidiary's ’s most recent balance sheet) , of the Company or such any Restricted Subsidiary (other than contingent liabilities and liabilities Indebtedness that are by their terms subordinated to the Notes or any guarantee thereof) Notes), that are assumed by the transferee of any such assets pursuant to a customary novation written agreement that releases the Company or such Restricted Subsidiary from further liability, liability with respect to such Indebtedness or liabilities; and
(b) any securities, notes or other obligations received by the Company or any such Restricted Subsidiary from such transferee that are immediately converted within 90 days of the applicable Asset Sale by the Company or such Restricted Subsidiary into cash (cash, to the extent of the cash receivedreceived in such conversion.
(b) and [Reserved].
(c) escrowed cash that the Company reasonably believes will be released from escrow within 365 days from the date of consummation of such Asset Sale, in each case shall be deemed to be cash for purposes of this provision. Notwithstanding the immediately preceding paragraph, the Company and its Restricted Subsidiaries will be permitted to consummate an Asset Sale without complying with such paragraph if (i) the Company or the applicable Restricted Subsidiary, as the case may be, receives consideration at the time of such Asset Sale at least equal to the fair market value of the assets or other property sold, issued or otherwise disposed of (as evidenced by a resolution of the Company's Board of Directors set forth in an Officers' Certificate delivered to the Trustee) and (ii) at least 75% of the consideration for such Asset Sale constitutes a controlling interest in a Permitted Business, long-term assets used or useful in a Permitted Business and/or cash or Cash Equivalents; provided that any cash or Cash Equivalents received by the Company or any of its Restricted Subsidiaries in connection with any Asset Sale permitted to be consummated under this paragraph shall constitute Net Proceeds subject to the provisions of the next succeeding paragraph. Within 365 days of after the receipt of any Net Proceeds from an Asset Sale, the Company or any of its Restricted Subsidiaries may apply such those Net Proceeds, Proceeds at its option, :
(i1) (a) to permanently repay Senior Debt under a Credit Facility (and or reduce Indebtedness, other than Subordinated Indebtedness, of the Company and, if the Indebtedness repaid is revolving credit Indebtedness, to correspondingly reduce commitments with respect thereto in the case of revolving borrowings) thereto; or (iib) to permanently repay or reduce Indebtedness of any of the acquisition Company’s Restricted Subsidiaries;
(2) to acquire, or enter into a binding agreement to acquire, all or substantially all of a controlling interest the assets (other than cash, Cash Equivalents and securities) of any Person engaged in a Permitted Business; provided, however, that any such commitment shall be subject only to customary conditions (other than financing), and such acquisition shall be consummated no later than 180 days after the end of such 365-day period;
(3) to acquire, or enter into a binding agreement to acquire, Voting Stock of a Person engaged in a Permitted Business from a Person that is not a Subsidiary of the Company; provided, however, that such commitment shall be subject only to customary conditions (other than financing) and such acquisition shall be consummated no later than 180 days after the end of such 365-day period; and provided, further, however, that (a) if the Net Proceeds are from the sale of assets of the Company or any of its Restricted Subsidiaries or the Equity Interests of any of its Restricted Subsidiaries, after giving effect thereto, the making Person so acquired becomes a Restricted Subsidiary and (b) such acquisition is otherwise made in accordance with this Indenture, including, without limitation, Section 4.10 hereof;
(4) to acquire, or enter into a binding agreement to acquire, previously issued and outstanding Voting Stock of a non-Wholly Owned Restricted Subsidiary of the Company (a) from a Person that is not an Affiliate of the Company or (b) in a brokered transaction through the facilities of a stock exchange; provided, however, that such commitment shall be subject only to customary conditions (other than financing) and such acquisition shall be consummated no later than 180 days after the end of such 365-day period;
(5) to make capital expenditure expenditures; or
(6) to acquire, or the acquisition of enter into a binding agreement to acquire, other long-term assets, in each case, assets (other than securities) that are used or useful in a Permitted Business; provided, however, that such commitment shall be subject only to customary conditions (other than financing) and such acquisition shall be consummated no later than 180 days after the end of such 365-day period. Pending the final application of any such Net Proceeds, the Company may temporarily reduce Senior Debt revolving credit borrowings or otherwise invest such the Net Proceeds in any manner that is not prohibited by this Indenture. .
(d) Any Net Proceeds from Asset Sales that are not applied or invested as provided in the first sentence of this paragraph (c) above shall be deemed to constitute "“Excess Proceeds." ”
(e) When the aggregate amount of Excess Proceeds exceeds $10.0 100.0 million, the Company shall be required to make an offer (an “Asset Sale Offer”) to all Holders of Notes and all holders of other Indebtedness that is pari passu Indebtedness in right of payment with the Notes containing provisions similar to those set forth in this Indenture with respect to offers to purchase or redeem such other pari passu Indebtedness with the proceeds of sales of assets (an "Asset Sale Offer") assets, to purchase the maximum principal amount of Notes and such other pari passu Indebtedness that may be purchased out of the Excess Proceeds at an offer price in cash in an amount equal to 100% of the principal amount thereof, plus accrued and unpaid interest and Liquidated Damages, if any, thereon to the date of purchase, in accordance with the procedures set forth in this Indenture and Section 3.09 hereof. The offer price in such other pari passu Indebtedness. To the extent that the aggregate any Asset Sale Offer shall be equal to 100% of principal amount of the Notes and such other pari passu Indebtedness tendered pursuant Indebtedness, plus accrued and unpaid 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 is less than and all Holders of Notes have been given the Excess Proceedsopportunity to tender their Notes for purchase in accordance with such Asset Sale Offer and this Indenture, the Company may use any remaining such Excess Proceeds for any purpose not otherwise prohibited by this Indenture. If the aggregate principal amount of Notes and such other pari passu Indebtedness surrendered by Holders thereof tendered into such Asset Sale Offer exceeds the amount of Excess Proceeds, the Trustee shall select the Notes and such other pari passu Indebtedness to shall be purchased on a pro rata basisbasis based on the principal amount of Notes and such other pari passu Indebtedness tendered. Upon completion of an each Asset Sale Offer, the amount of Excess Proceeds shall be reset at zero. The Company shall comply with the requirements of Rule 14e-1 under the Exchange Act and any other securities laws and regulations to the extent such laws and regulations are applicable in connection with each repurchase of Notes pursuant to an Asset Sale Offer. To the extent that the provisions of any securities laws or regulations conflict with the Asset Sales provisions of this Indenture, the Company shall comply with the applicable securities laws and regulations and shall be deemed not to have breached its obligations under the Asset Sale provisions of this Indenture by virtue of such conflict.
Appears in 1 contract
Sources: Indenture (Quebecor Media Inc)
Asset Sales. The Company shall not, and shall not permit any of its Restricted Subsidiaries to, consummate engage in an Asset Sale in excess of $1,000,000 unless (a) the Intercreditor Agreement is in effect and the Intercreditor Agreement does not prohibit such Asset Sale and expressly provides that the Trustee has no right to restrict or permit, or approve or disapprove, such Asset Sale, or (b) in all other cases, (i) the Company (or such Restricted the Subsidiary, as the case may be, ) receives consideration at the time of such Asset Sale 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 the Company (or the 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 of Directors of such entity set forth in an Officers' Certificate delivered to the Trustee) of the assets or Equity Interests issued or sold or otherwise disposed of and of, (ii) at least 75% (100% in the case of lease payments) of the consideration therefor received by the Company or such Restricted Subsidiary is in the form of cash or Cash Equivalents; provided that the amount of (a) any liabilities (as shown on the Company's or such Restricted Subsidiary's most recent balance sheet) of the Company or such Restricted Subsidiary (other than contingent liabilities and liabilities that are by their terms subordinated to the Notes or any guarantee thereof) that are assumed by the transferee of any such assets pursuant to a customary novation agreement that releases the Company or such Restricted Subsidiary from further liability, (b) any securities, notes or other obligations received by the Company or any such Restricted Subsidiary from such transferee that are immediately promptly, but in no event more than 30 days after receipt, converted by the Company or such Restricted Subsidiary into cash (to the extent of the cash received) and (c) escrowed cash that the Company reasonably believes will be released from escrow within 365 days from the date of consummation of such Asset Sale), in each case shall be deemed to be cash for purposes of this provision. Notwithstanding , (iii) subject to the immediately preceding paragraphIntercreditor Agreement, if such Asset Sale involves the disposition of Collateral, the Company or such Subsidiary has complied with the provisions of Articles 10 and its Restricted Subsidiaries will be permitted to consummate an Asset Sale without complying with such paragraph if 11 hereof, and (iiv) the Company or the applicable Restricted Subsidiary, as the case may be, receives consideration applies the Net Proceeds as provided in the following paragraph. Subject to the Intercreditor Agreement, any such Net Proceeds may, 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 option of the Company's Board of Directors set forth in an Officers' Certificate delivered to the Trustee) and (ii) at least 75% of the consideration for such Asset Sale constitutes a controlling interest in a Permitted Business, long-term assets used or useful in a Permitted Business and/or cash or Cash Equivalents; provided that any cash or Cash Equivalents received by the Company or any of its Restricted Subsidiaries in connection with any Asset Sale permitted to be consummated under this paragraph shall constitute Net Proceeds subject to the provisions of the next succeeding paragraph. Within 365 applied within 180 days of the receipt of any Net Proceeds from an related Asset Sale, the Company may apply such Net Proceeds, at its option, Sale as follows:
(i) to repay Senior Debt under a Credit Facility (and to correspondingly reduce commitments with respect thereto in the case of revolving borrowings) or (ii) to the acquisition of a controlling interest in a Permitted Business, the making of a capital expenditure another business or the acquisition of other long-term assets, in each case, used in the same or useful in a Permitted Business. Pending the final application similar line of any such Net Proceeds, business as the Company or any of its Subsidiaries was engaged in on the Issue Date or any reasonable extensions or expansions thereof ("Replacement Assets"); provided, that any Replacement Assets shall be owned by the Company or by the Subsidiary Guarantor that made the Asset Sale and shall not be subject to any Liens except Collateral Permitted Liens (and the Company or such Subsidiary Guarantor, as the case may temporarily reduce Senior Debt be, shall execute and deliver to the Trustee such Collateral Documents or other instruments as shall be necessary to cause such Replacement Assets to become subject to a Lien in favor of the Trustee, for the benefit of the holders of the Notes, securing its obligations under the Notes or its Subsidiary Guarantee, as the case may be, and otherwise invest shall comply with the provisions of this Indenture applicable to After-Acquired Property); or
(ii) to reimburse the Company or its Subsidiaries for expenditures made, and costs incurred, to repair, rebuild, replace or restore property subject to loss, damage or taking to the extent that the Net Proceeds consist of Net Insurance Proceeds received on account of such loss, damage or taking. Any portion of such Net Proceeds in any manner that is not prohibited by this Indenture. Any Net Proceeds from Asset Sales that are not applied used as described in subparagraphs (i) or invested as provided in the first sentence of this paragraph (ii) above within such 180-day period shall be deemed to constitute "Excess Proceeds." subject to disposition as provided below. When the aggregate amount of Excess Proceeds exceeds $10.0 million, 3,000,000 the Company shall be required to make an offer to all Holders of Notes and all holders of other pari passu Indebtedness containing provisions similar to those set forth in this Indenture with respect to offers to purchase or redeem such other pari passu Indebtedness with the proceeds of sales of assets (an "Asset Sale Offer") to purchase the maximum principal amount of Notes and such other pari passu Indebtedness that may be purchased out of the Excess Proceeds Proceeds, at an offer price in cash in an amount equal to 100% of the principal amount thereof, thereof plus accrued and unpaid interest and Liquidated Damagesthereon, if any, thereon to the date of purchase, in accordance with the procedures set forth in this Indenture and in such other pari passu IndebtednessIndenture. To the extent that the aggregate amount of Notes and such other pari passu Indebtedness tendered pursuant to an Asset Sale Offer is less than the Excess Proceeds, the Company may use any remaining Excess Proceeds for any purpose not otherwise prohibited by this Indenture. If the aggregate principal amount of Notes and such other pari passu Indebtedness surrendered by Holders thereof exceeds the amount of Excess Proceeds, the Trustee shall select the Notes and such other pari passu Indebtedness to be purchased on a pro rata basisgeneral corporate purposes. Upon completion of an such Asset Sale Offer, the amount of Excess Proceeds shall be reset at zero.. Subject to the Intercreditor Agreement, all proceeds of Collateral shall, pending their application in accordance with this covenant or the release thereof in accordance with Article 10 and Article 11, be deposited in the Collateral Account under this Indenture. The Asset Sale Offer shall remain open for a period of 20 Business Days following its commencement and no longer, except to the extent that a longer period is required by applicable law (the "Asset Sale Offer Period"). No later than five Business Days after the termination of the Asset Sale Offer Period (the "Asset Sale Purchase Date"), the Company shall purchase the principal amount of Notes required to be purchased pursuant to this covenant (the
Appears in 1 contract
Sources: Indenture (RBX Corp)
Asset Sales. (a) The Company shall will not, and shall will not permit any of its Restricted Subsidiaries Subsidiary to, consummate an Asset Sale unless Sale, unless:
(i) the Company or such Restricted Subsidiary, as the case may be, receives consideration at the time of such Asset Sale at least equal to the fair market value (evidenced by a resolution of the Board of Directors set forth in an Officers' Certificate delivered to the Trustee) Fair Market Value of the assets or Equity Interests issued or sold or otherwise disposed of and of;
(ii) except in the case of a Permitted Asset Swap, at least 75% of the consideration therefor received by the Company or such Restricted Subsidiary Subsidiary, as the case may be, is in the form of cash or cash, Cash Equivalents, Replacement Assets or a combination of the foregoing; provided that and
(iii) if such Asset Sale involves the amount disposition of (a) any liabilities (as shown on the Company's or such Restricted Subsidiary's most recent balance sheet) of Collateral, the Company or such Restricted Subsidiary (has complied with the other than contingent liabilities provisions of this Indenture and liabilities that are by their terms subordinated to the Notes Collateral Documents related thereto. Within 365 days after the Company’s or any guarantee thereof) that are assumed by Restricted Subsidiary’s receipt of the transferee Net Proceeds of any such assets pursuant to a customary novation agreement that releases Asset Sale, the Company or such Restricted Subsidiary Subsidiary, at its option, may apply an amount equal to the Net Proceeds from such Asset Sale:
(1) to permanently reduce Pari Passu Obligations or repay, redeem or purchase the Notes; provided that if the Company shall so reduce, repay, redeem or repurchase Pari Passu Obligations other than the Notes, it will equally and ratably reduce Obligations under the Notes in accordance with the procedures set forth in Article IV, through privately negotiated transactions or open market purchases or by making an offer (in accordance with the procedures set forth in Section 4.08 for an Asset Sale Offer) to all Holders to purchase their Notes, in each case, at or above 100% of the principal amount thereof, plus the amount of accrued but unpaid interest, if any, on the amount of the Notes that would otherwise be prepaid, which offer shall constitute a reduction of the Obligations under the Notes under this provision, whether or not accepted; provided further liabilitythat, in addition to the foregoing, the Net Proceeds from an Asset Sale of Collateral may not be applied to prepay, repay or repurchase any Indebtedness pursuant to this clause (b1) other than Pari Passu Obligations;
(2) to (a) make an investment in any securitiesone or more businesses, notes or other obligations received by provided that such investment in any business is in the form of the acquisition of Capital Stock and results in the Company or such Restricted Subsidiary from such transferee that are immediately converted by the Company or such Restricted Subsidiary into cash (to the extent of the cash received) and (c) escrowed cash that the Company reasonably believes will be released from escrow within 365 days from the date of consummation of such Asset Sale, in each case shall be deemed to be cash for purposes of this provision. Notwithstanding the immediately preceding paragraph, the Company and its Restricted Subsidiaries will be permitted to consummate an Asset Sale without complying with such paragraph if (i) the Company or the applicable a Restricted Subsidiary, as the case may be, receives consideration at owning or continuing to own an amount of the time Capital Stock of such Asset Sale at least equal to business such that it constitutes a Restricted Subsidiary, (b) make capital expenditures or (c) acquire other assets (including assets that replace the fair market value business, properties and assets that were the subject of the assets or other property soldAsset Sale), issued or otherwise disposed in each of (as evidenced by a resolution of the Company's Board of Directors set forth in an Officers' Certificate delivered to the Trusteea), (b) and (ii) at least 75% of the consideration for such Asset Sale constitutes a controlling interest in a Permitted Businessc), long-term assets engaged, used or useful in a Permitted Business and/or cash or Cash EquivalentsSimilar Business; provided further that any cash or Cash Equivalents received by the Company or any of its Restricted Subsidiaries in connection with any Asset Sale permitted to be consummated under this paragraph shall constitute Net Proceeds subject to the provisions of the next succeeding paragraph. Within 365 days of the receipt of any Net Proceeds from an Asset SaleSale of Collateral shall only be invested in other Collateral or in other businesses, properties or assets that become Collateral to the Company may apply extent such Net Proceedsbusiness, at its option, properties or assets are required to become “Collateral” or “Pledged Collateral” (ior any equivalent term) to repay Senior Debt under a Credit Facility (and to correspondingly reduce commitments with respect thereto as defined in the case of revolving borrowings) or (ii) to the acquisition of a controlling interest in a Permitted Business, the making of a capital expenditure or the acquisition of other long-term assets, in each case, used or useful in a Permitted Business. Pending the final application of any such Net Proceeds, the Company may temporarily reduce Senior Debt or otherwise invest such Net Proceeds in any manner that is not prohibited by this Indenture. Any Net Proceeds from Asset Sales that are not applied or invested as provided in the first sentence of this paragraph shall be deemed to constitute "Excess Proceeds." When the aggregate amount of Excess Proceeds exceeds $10.0 million, the Company shall be required to make an offer to all Holders of Notes and all holders of other pari passu Indebtedness containing provisions similar to those set forth in this Indenture with respect to offers to purchase or redeem such other pari passu Indebtedness with the proceeds of sales of assets (an "Asset Sale Offer") to purchase the maximum principal amount of Notes and such other pari passu Indebtedness that may be purchased out of the Excess Proceeds at an offer price in cash in an amount equal to 100% of the principal amount thereof, plus accrued and unpaid interest and Liquidated Damages, if any, thereon to the date of purchase, First Priority Credit Documents in accordance with the procedures set forth in this Indenture and in such other pari passu Indebtedness. To terms of any of the extent that the aggregate amount of Notes and such other pari passu Indebtedness tendered pursuant to an Asset Sale Offer is less than the Excess Proceeds, the Company may use any remaining Excess Proceeds for any purpose not otherwise prohibited by this Indenture. If the aggregate principal amount of Notes and such other pari passu Indebtedness surrendered by Holders thereof exceeds the amount of Excess Proceeds, the Trustee shall select the Notes and such other pari passu Indebtedness to be purchased on a pro rata basis. Upon completion of an Asset Sale Offer, the amount of Excess Proceeds shall be reset at zero.First Priority Credit Documents;
Appears in 1 contract
Asset Sales. The Company shall not, and shall not permit any of its Restricted Subsidiaries to, consummate engage in an Asset Sale unless (i) the Company (or such Restricted the Subsidiary, as the case may be, ) receives consideration at the time of such Asset Sale at least equal to the fair market value (evidenced by a resolution of the Board of Directors set forth in an Officers' Certificate delivered to the Trustee) of the assets or Equity Interests issued or sold or otherwise disposed of and (ii) at least 7570% of the consideration therefor received by the Company or such Restricted Subsidiary is in the form of cash or Cash Equivalents; provided that the amount (x) of (a) any liabilities (as shown on the Company's or such Restricted Subsidiary's most recent balance sheet) ), of the Company or such Restricted any Subsidiary (other than contingent liabilities and liabilities that are by their terms subordinated to the Notes or any guarantee Guarantee thereof) that are assumed by the transferee of any such assets pursuant to a customary novation agreement that releases the Company or such Restricted Subsidiary from further liability, and (by) any securitiesnotes, notes securities or other obligations received by the Company or any such Restricted Subsidiary from such transferee that are immediately (subject to normal settlement periods) converted by the Company or such Restricted Subsidiary into cash (to the extent of the cash received) and (c) escrowed cash that the Company reasonably believes will be released from escrow within 365 days from the date of consummation of such Asset Sale), in each case shall be deemed to be cash for purposes of this provision. Notwithstanding the immediately preceding paragraph, the Company and its Restricted Subsidiaries will be permitted to consummate an Asset Sale without complying with such paragraph if (i) the Company or the applicable Restricted Subsidiary, as the case may be, receives consideration at the time of such Asset Sale at least equal to the fair market value of the assets or other property sold, issued or otherwise disposed of (as evidenced by a resolution of the Company's Board of Directors set forth in an Officers' Certificate delivered to the Trustee) and (ii) at least 75% of the consideration for such Asset Sale constitutes a controlling interest in a Permitted Business, long-term assets used or useful in a Permitted Business and/or cash or Cash Equivalents; provided that any cash or Cash Equivalents received by the Company or any of its Restricted Subsidiaries in connection with any Asset Sale permitted to be consummated under this paragraph shall constitute Net Proceeds subject to the provisions of the next succeeding paragraph. Within 365 360 days of after the receipt of any Net Proceeds from an Asset Sale, the Company may apply such Net Proceeds, at its option, (ia) to repay permanently reduce (x) Senior Debt under a Credit Facility Indebtedness or (and y) Indebtedness of the Company's Subsidiaries or (b) to correspondingly reduce commitments with respect thereto invest in the case business or businesses of revolving borrowings) the Company or (ii) any of its Subsidiaries or any business directly related to any business then conducted by the Company or any of its Subsidiaries or any business related to the acquisition of a controlling interest in a Permitted Business, the making of a aircraft industry or used for working capital expenditure or the acquisition of other long-term assets, in each case, used or useful in a Permitted Businesspurposes. Pending the final application of any such Net Proceeds, the Company may temporarily reduce the revolving portion of Senior Debt Indebtedness or otherwise invest such Net Proceeds in any manner that is not prohibited by this Indenture. Any Net Proceeds from Asset Sales that are not applied or invested as provided in the first sentence of this paragraph shall will be deemed to constitute "Excess Proceeds." When the aggregate amount of Excess Proceeds exceeds $10.0 10 million, the Company shall will be required to make an offer to all Holders of Notes and all holders of other pari passu Indebtedness containing provisions similar to those set forth in this Indenture with respect to offers to purchase or redeem such other pari passu Indebtedness with the proceeds of sales of assets (an "Asset Sale Offer") to purchase the maximum principal amount of Notes and such other pari passu Indebtedness that may be purchased out of the Excess Proceeds Proceeds, at an offer price in cash in an amount equal to 100% of the 44 51 principal amount thereof, thereof plus accrued and unpaid interest and Liquidated Damages, if any, thereon to the date of purchase, in accordance with the procedures set forth in this Indenture and in such other pari passu IndebtednessSection 3.09 hereof. To the extent that the aggregate amount of Notes and such other pari passu Indebtedness tendered pursuant to an Asset Sale Offer is less than the Excess Proceeds, the Company may use any remaining Excess Proceeds for any purpose not otherwise prohibited by this Indenturegeneral corporate purposes. If the aggregate principal amount of Notes and such other pari passu Indebtedness surrendered by Holders thereof exceeds the amount of Excess Proceeds, the Trustee shall select the Notes and such other pari passu Indebtedness to be purchased on a pro rata basis. Upon completion of an Asset Sale Offersuch offer to purchase, the amount of Excess Proceeds shall be reset at zero.
Appears in 1 contract
Sources: Indenture (K&f Industries Inc)
Asset Sales. The Company Borrowers covenant and agree that all proceeds derived from the sale or disposition (whether voluntary or involuntary), or on account of damage or destruction, of Collateral consisting of real estate, furniture, fixtures, equipment or other fixed assets of the Borrowers shall notbe paid over to the Bank as and for a mandatory prepayment on the Term Note; provided that if at the time of receipt no amount is outstanding under the Term Note or the amount received is in excess of the amount necessary to prepay the Term Note in full, then such prepayment or excess (as appropriate) shall be applied to the Revolving Note (or held by the Bank as collateral security for the Borrowers’ Obligations under the Applications if the Revolving Loans have been prepaid in full but Letters of Credit remain outstanding), subject to the Borrowers’ right to reborrow amounts so applied against the Revolving Credit in accordance with the terms and shall not permit any of its Restricted Subsidiaries toconditions hereof; provided, consummate an Asset Sale unless however, that (i) the Company or such Restricted Subsidiary, foregoing provision shall be inapplicable to proceeds received by the Bank under the Collateral Documents if and so long as the case may beBorrowers have, receives consideration at the time of such Asset Sale at least equal pursuant to the fair market value (evidenced Collateral Documents, requested that the same be held by a resolution the Bank and disbursed for the restoration, repair or replacement of the Board property in respect 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 which such proceeds were received and (ii) at least 75% no prepayment shall be required with respect to up to $100,000 of net proceeds (i.e., gross proceeds net of out-of-pocket expenses incurred in effecting the sale or other disposition) received in any calendar year from the sale or other disposition of personal property Collateral which is worn out, obsolete or, in the good faith judgment of the consideration therefor received by Borrowers, no longer necessary to the Company or efficient conduct of its business as then conducted. Any such Restricted Subsidiary is prepayment applied to the outstanding principal balance of the Term Note shall be applied to the several installments thereof in the form inverse order of cash or Cash Equivalents; provided that the amount of (a) any liabilities (as shown on the Company's or such Restricted Subsidiary's most recent balance sheet) its maturity. Any prepayment of the Company or such Restricted Subsidiary (other than contingent liabilities and liabilities that are by their terms subordinated to the Notes or any guarantee thereof) that are assumed by the transferee of any such assets Term Note made pursuant to a customary novation agreement that releases the Company or such Restricted Subsidiary from further liability, (bthis Section 3.7(c) any securities, notes or other obligations received by the Company or such Restricted Subsidiary from such transferee that are immediately converted by the Company or such Restricted Subsidiary into cash (to the extent of the cash received) and (c) escrowed cash that the Company reasonably believes will shall not be released from escrow within 365 days from the date of consummation of such Asset Sale, in each case shall be deemed to be cash for purposes of this provision. Notwithstanding the immediately preceding paragraph, the Company and its Restricted Subsidiaries will be permitted to consummate an Asset Sale without complying with such paragraph if (i) the Company or the applicable Restricted Subsidiary, as the case may be, receives consideration at the time of such Asset Sale at least equal to the fair market value of the assets or other property sold, issued or otherwise disposed of (as evidenced by a resolution of the Company's Board of Directors set forth in an Officers' Certificate delivered to the Trustee) and (ii) at least 75% of the consideration for such Asset Sale constitutes a controlling interest in a Permitted Business, long-term assets used or useful in a Permitted Business and/or cash or Cash Equivalents; provided that any cash or Cash Equivalents received by the Company or any of its Restricted Subsidiaries in connection with any Asset Sale permitted to be consummated under this paragraph shall constitute Net Proceeds subject to the provisions of the next succeeding paragraph. Within 365 days of the receipt of any Net Proceeds from an Asset Sale, the Company may apply such Net Proceeds, at its option, (i) to repay Senior Debt under a Credit Facility (and to correspondingly reduce commitments with respect thereto prepayment premium contained in the case of revolving borrowings) or (ii) to the acquisition of a controlling interest in a Permitted Business, the making of a capital expenditure or the acquisition of other long-term assets, in each case, used or useful in a Permitted Business. Pending the final application of any such Net Proceeds, the Company may temporarily reduce Senior Debt or otherwise invest such Net Proceeds in any manner that is not prohibited by this Indenture. Any Net Proceeds from Asset Sales that are not applied or invested as provided in the first sentence Section 3.4 of this paragraph shall be deemed to constitute "Excess ProceedsAgreement." When the aggregate amount of Excess Proceeds exceeds $10.0 million, the Company shall be required to make an offer to all Holders of Notes and all holders of other pari passu Indebtedness containing provisions similar to those set forth in this Indenture with respect to offers to purchase or redeem such other pari passu Indebtedness with the proceeds of sales of assets (an "Asset Sale Offer") to purchase the maximum principal amount of Notes and such other pari passu Indebtedness that may be purchased out of the Excess Proceeds at an offer price in cash in an amount equal to 100% of the principal amount thereof, plus accrued and unpaid interest and Liquidated Damages, if any, thereon to the date of purchase, in accordance with the procedures set forth in this Indenture and in such other pari passu Indebtedness. To the extent that the aggregate amount of Notes and such other pari passu Indebtedness tendered pursuant to an Asset Sale Offer is less than the Excess Proceeds, the Company may use any remaining Excess Proceeds for any purpose not otherwise prohibited by this Indenture. If the aggregate principal amount of Notes and such other pari passu Indebtedness surrendered by Holders thereof exceeds the amount of Excess Proceeds, the Trustee shall select the Notes and such other pari passu Indebtedness to be purchased on a pro rata basis. Upon completion of an Asset Sale Offer, the amount of Excess Proceeds shall be reset at zero.
Appears in 1 contract
Asset Sales. (a) The Company shall will not, and shall will not permit any of its Restricted Subsidiaries to, consummate an Asset Sale unless unless:
(i1) the Company (or such the Restricted Subsidiary, as the case may be, ) receives consideration at the time of such Asset Sale at least equal to the fair market value (evidenced by a resolution of the Board of Directors set forth in an Officers' Certificate delivered to the Trustee) Fair Market Value of the assets or Equity Interests issued or sold or otherwise disposed of; provided that this clause (1) shall not apply to an Asset Sale resulting solely from a foreclosure or sale by a third party upon assets or property subject to a Lien not prohibited by this Indenture;
(2) where such Fair Market Value exceeds $75.0 million, the Company’s determination of such Fair Market Value is set forth in an Officer’s Certificate delivered to the Trustee for informational purposes only and the Trustee’s receipt of such shall not constitute constructive notice of any information contained therein or determinable from information contained therein, including the Company’s compliance with any of its covenants (iias to which the Trustee is entitled to rely exclusively on Officer’s Certificates); and
(3) at least 75% of the consideration therefor received by the Company or such Restricted Subsidiary is in the form of cash cash, Cash Equivalents or Replacement Assets or a combination thereof. For purposes of this provision, each of the following shall be deemed to be Cash Equivalents; provided that the amount of :
(aA) any liabilities (as shown on the Company's ’s or such Restricted Subsidiary's ’s most recent balance sheet, or would be shown on the Company’s or such Restricted Subsidiary’s balance sheet on the date of such Asset Sale) of the Company or such any Restricted Subsidiary (other than contingent liabilities and liabilities Indebtedness that are is by their its terms subordinated to the Notes or any guarantee thereofNote Guarantee and liabilities to the extent owed to the Company or any Affiliate of the Company) that are assumed by the transferee of any such assets pursuant to a customary novation written agreement that releases the Company or such Restricted Subsidiary from further liability, liability therefor;
(bB) any securities, notes or other obligations received by the Company or any such Restricted Subsidiary from such transferee that are immediately converted (including by way of any Monetization Transaction) by the Company or such Restricted Subsidiary into cash or Cash Equivalents (to the extent of the cash receivedor Cash Equivalents received in that conversion) and (c) escrowed cash that the Company reasonably believes will be released from escrow within 365 180 days from the date of consummation of such Asset Sale, in each case shall ; and
(4) within 12 months from the later of (A) the date of such Asset Sale and (B) the receipt of the Net Proceeds from such Asset Sale (as may be deemed to be cash for purposes of this provision. Notwithstanding the immediately preceding paragraphextended by an Acceptable Commitment as set forth below, the Company and its Restricted Subsidiaries will be permitted “Proceeds Application Period”), an amount equal to consummate 100% of such Net Proceeds (the “Applicable Proceeds”) is applied:
(A) (I) to the extent such Net Proceeds are from an Asset Sale without complying with such paragraph if (i) of Collateral and the Company or the applicable any Restricted Subsidiary, as the case may be, receives consideration elects (or is required by the terms of any Indebtedness), to prepay, repay or purchase the Notes or any Credit Agreement Obligations or Additional First Lien Obligations, including Indebtedness under the Credit Agreement (or any Permitted Refinancing Indebtedness in respect thereof that have Pari Passu Lien Priority); provided that, to the extent the Company redeems, repays or repurchases such Credit Agreement Obligations or Additional First Lien Obligations pursuant to this clause, the Company shall equally and ratably reduce the Notes Obligations as provided under Section 3.07, through open-market purchases (to the extent such purchases are at or above 100% of the time principal amount thereof) or by making an offer (in accordance with the procedures set forth below for an Asset Disposition Offer) to all Holders of Notes to purchase their Notes at 100% of the principal amount thereof, plus the amount of accrued but unpaid interest, if any, on the amount of Notes that would 4869-1723-0772 v.7 otherwise be prepaid; and (II) to the extent such Net Proceeds are from an Asset Sale of assets or property that do not constitute Collateral, (w) to reduce, prepay, repay or purchase any Indebtedness secured by a Lien on such asset, (x) to reduce, prepay, repay or purchase Credit Agreement Obligations or Additional First Lien Obligations; provided that, to the extent the Company redeems, repays or repurchases such Credit Agreement Obligations or Additional First Lien Obligations pursuant to this clause (x), the Company shall equally and ratably reduce the Notes Obligations as provided under Section 3.07 through open-market purchases (to the extent such purchases are at least or above 100% of the principal amount thereof) or by making an offer (in accordance with the procedures set forth below for an Asset Disposition Offer) to all Holders of Notes to purchase their Notes at 100% of the principal amount thereof, plus the amount of accrued but unpaid interest, if any, on the amount of Notes that would otherwise be prepaid, (y) to make an offer (in accordance with the procedures set forth below for an Asset Disposition Offer) to redeem Notes as described under Section 3.07 or purchase Notes through open-market purchases or in privately negotiated transactions, or (z) to reduce, prepay, repay or purchase any other Indebtedness of a Non-Guarantor Subsidiary (in each case, other than Indebtedness owed to a Company or any Restricted Subsidiary); and
(B) to the extent the Company or any Restricted Subsidiary elects, to invest in or commit to invest in Additional Assets (including by means of an investment in Additional Assets by a Restricted Subsidiary equal to the fair market value amount of the assets or other property sold, issued or otherwise disposed of (as evidenced by a resolution of the Company's Board of Directors set forth in an Officers' Certificate delivered to the Trustee) and (ii) at least 75% of the consideration for such Asset Sale constitutes a controlling interest in a Permitted Business, long-term assets used or useful in a Permitted Business and/or cash or Cash Equivalents; provided that any cash or Cash Equivalents Net Proceeds received by the Company or any another Restricted Subsidiary) within 12 months from the later of its Restricted Subsidiaries in connection with any (i) the date of such Asset Sale permitted to be consummated under this paragraph shall constitute Net Proceeds subject to the provisions of the next succeeding paragraph. Within 365 days of and (ii) the receipt of any such Net Proceeds; provided that a binding agreement shall be treated as a permitted application of Net Proceeds from the date of such commitment with the good faith expectation that an Asset Sale, amount equal to Net Proceeds will be applied to satisfy such commitment within 180 days of such commitment (an “Acceptable Commitment”); or
(C) any combination of the Company may apply such Net Proceeds, at its option, foregoing; provided that (i1) to repay Senior Debt under a Credit Facility (and to correspondingly reduce commitments with respect thereto in the case of revolving borrowings) or (ii) to the acquisition of a controlling interest in a Permitted Business, the making of a capital expenditure or the acquisition of other long-term assets, in each case, used or useful in a Permitted Business. Pending pending the final application of the amount of any such Net ProceedsApplicable Proceeds pursuant to this Section 4.10, the Company or the applicable Restricted Subsidiaries may apply such Applicable Proceeds temporarily to reduce Senior Debt Indebtedness (including under the Credit Agreement) or otherwise invest apply such Net Applicable Proceeds in any manner that is not prohibited by this Indenture. Any Net , and (2) the Company (or any Restricted Subsidiary, as the case may be) may elect to invest in Additional Assets prior to receiving the Applicable Proceeds attributable to any given Asset Sale (provided that such investment shall be made no earlier than the earliest of written notice to the Trustee of the relevant Asset Sale (which notice shall be for informational purposes only and the Trustee’s receipt of such shall not constitute constructive notice of any information contained therein or determinable from information contained therein, including the Company’s compliance with any of its covenants (as to which the Trustee is entitled to rely exclusively on Officer’s Certificates)), execution of a definitive agreement for the relevant Asset Sales Sale, and consummation of the relevant Asset Sale) and deem the amount so invested to be applied pursuant to and in accordance with clause (a)(4)(B) above with respect to such Asset Sale.
(b) If, with respect to any Asset Sale of Collateral, at the expiration of the Proceeds Application Period with respect to such Asset Sale, there remains Applicable Proceeds in excess of $150,000,000 (such amount of Applicable Proceeds that are not applied or invested as provided in the first sentence of this paragraph shall be deemed equal to constitute "$150,000,000, “Declined Collateral Excess Proceeds." When the aggregate ,” and such amount of Applicable Proceeds that are in excess of $150,000,000, “Collateral Excess Proceeds exceeds $10.0 millionProceeds”), then subject to the limitations with respect to Foreign Dispositions set forth below, the Company shall be required to make an offer (a “Collateral Asset Disposition Offer”) no later than ten Business Days after the expiration of the Proceeds Application Period to all Holders of Notes and (with a copy to the Trustee) and, if required by the terms of any Credit Agreement Obligations or Additional First Lien Obligations, to all holders of other pari passu Indebtedness containing provisions similar to those set forth in this Indenture with respect to offers to purchase such Credit Agreement Obligations or redeem such other pari passu Indebtedness with the proceeds of sales of assets (an "Asset Sale Offer") Additional First Lien Obligations, to purchase the maximum principal amount of such Notes and such other pari passu Indebtedness or Credit Agreement Obligations or Additional First Lien Obligations, as appropriate, on a pro rata basis, that may be purchased out of the such Collateral Excess Proceeds Proceeds, if any, at an offer price price, in the case of the Notes, in cash in an amount equal to 100% of the principal amount thereof (or in the event such other Indebtedness was issued with original issue discount, 100% of the accreted value thereof), plus accrued and unpaid interest and Liquidated Damagesinterest, if any (or such lesser price with respect to Credit 4869-1723-0772 v.7 Agreement Obligations or Additional First Lien Obligations, if any, thereon to as may be provided by the terms of such other Indebtedness), to, but not including, the date fixed for the closing of purchasesuch offer, in accordance with the procedures set forth in this Indenture and the agreement governing the Credit Agreement Obligations or Additional First Lien Obligations, as applicable, in minimum denominations of $2,000 and in integral multiples of $1,000 in excess thereof. Notices of a Collateral Asset Disposition Offer shall be sent by first class mail or sent electronically, at least 10 days but not more than 60 days before the purchase date to each Holder of the Notes at such other pari passu IndebtednessHolder’s registered address or otherwise in accordance with the applicable procedures of DTC, with a copy to the Trustee. The Company may satisfy the foregoing obligation with respect to the Applicable Proceeds by making a Collateral Asset Disposition Offer prior to the expiration of the Proceeds Application Period (the “Collateral Advance Offer”) with respect to all or a part of the Applicable Proceeds (the “Collateral Advance Portion”) in advance of being required to do so by this Indenture.
(c) To the extent that the aggregate amount (or accreted value, as applicable) of Notes and such and, if applicable, any other pari passu Indebtedness Credit Agreement Obligations or Additional First Lien Obligations, as the case may be, validly tendered pursuant to an or otherwise surrendered in connection with a Collateral Asset Sale Disposition Offer made with Collateral Excess Proceeds (or, in the case of a Collateral Advance Offer, the Collateral Advance Portion) is less than the Excess Proceedsamount offered in a Collateral Asset Disposition Offer, the Company may use include any remaining Collateral Excess Proceeds (or, in the case of a Collateral Advance Offer, the Collateral Advance Portion) in Declined Collateral Excess Proceeds, and use such Declined Collateral Excess Proceeds for any purpose not otherwise prohibited by this Indenture. If the aggregate principal amount (or accreted value, as applicable) of the Notes and such other pari passu Indebtedness surrendered by Holders thereof or, if applicable, Credit Agreement Obligations or Additional First Lien Obligations validly tendered pursuant to any Collateral Asset Disposition Offer exceeds the amount of Collateral Excess ProceedsProceeds (or, in the case of a Collateral Advance Offer, the Trustee Collateral Advance Portion), the Company shall select allocate the Notes Collateral Excess Proceeds among the Notes, the Credit Agreement Obligations and such other pari passu Indebtedness the Additional First Lien Obligations to be purchased on a pro rata basisbasis on the basis of the aggregate principal amount (or accreted value, as applicable) of tendered Notes, Credit Agreement Obligations and Additional First Lien Obligations; provided that no Notes, Credit Agreement Obligations or Additional First Lien Obligations will be selected and purchased in an unauthorized denomination. Upon completion of an any Collateral Asset Sale Disposition Offer, the amount of Applicable Proceeds and Collateral Excess Proceeds shall be reset at zero.
(d) If, with respect to any Asset Sale of assets or property that do not constitute Collateral, at the expiration of the Proceeds Application Period with respect to such Asset Sale, there remains Applicable Proceeds in excess of $150,000,000 (such amount of Applicable Proceeds that are equal to $150,000,000, “Declined Excess Proceeds,” and such amount of Applicable Proceeds that are in excess of $150,000,000, “Excess Proceeds”), then subject to the limitations with respect to Foreign Dispositions set forth below, the Company shall make an offer (an “Asset Disposition Offer”) no later than ten Business Days after the expiration of the Proceeds Application Period to all Holders of Notes and, if required by the terms of any Credit Agreement Obligations or Additional First Lien Obligations, to all holders of such Credit Agreement Obligations or Additional First Lien Obligations, to purchase the maximum principal amount of such Notes and Credit Agreement Obligations or Additional First Lien Obligations, as appropriate, on a pro rata basis, that may be purchased out of such Excess Proceeds, if any, at an offer price, in the case of the Notes, in cash in an amount equal to 100% of the principal amount thereof (or in the event such other Indebtedness was issued with original issue discount, 100% of the accreted value thereof), plus accrued and unpaid interest, if any (or such lesser price with respect to Credit Agreement Obligations and Additional First Lien Obligations, if any, as may be provided by the terms of such other Indebtedness), to, but not including, the date fixed for the closing of such offer, in accordance with the procedures set forth in this Indenture and the agreement governing the Credit Agreement Obligations or Additional First Lien Obligations, as applicable, in minimum denominations of $2,000 and in integral multiples of $1,000 in excess thereof. Notices of an Asset Disposition Offer shall be sent by first class mail or sent electronically, at least 10 days but not more than 60 days before the purchase date to each Holder of the Notes at such Holder’s registered address or otherwise in accordance with the applicable procedures of DTC, with a copy to the Trustee. The Company may satisfy the foregoing obligation with respect to the Applicable Proceeds by making an Asset Disposition Offer prior to the expiration of the Proceeds Application Period (the “Advance Offer”) with respect to all or a part of the Applicable Proceeds (the “Advance Portion”) in advance of being required to do so by this Indenture. 4869-1723-0772 v.7
(e) To the extent that the aggregate amount (or accreted value, as applicable) of Notes and, if applicable, any other Credit Agreement Obligations or Additional First Lien Obligations validly tendered or otherwise surrendered in connection with an Asset Disposition Offer made with Excess Proceeds (or, in the case of an Advance Offer, the Advance Portion) is less than the amount offered in an Asset Disposition Offer, the Company may include any remaining Excess Proceeds (or, in the case of an Advance Offer, the Advance Portion) in Declined Excess Proceeds, and use such Declined Excess Proceeds for any purpose not otherwise prohibited by this Indenture. If the aggregate principal amount (or accreted value, as applicable) of the Notes or, if applicable, Credit Agreement Obligations or Additional First Lien Obligations validly tendered pursuant to any Asset Disposition Offer exceeds the amount of Excess Proceeds (or, in the case of an Advance Offer, the Advance Portion), the Company shall allocate the Excess Proceeds among the Notes, Credit Agreement Obligations and Additional First Lien Obligations to be purchased on a pro rata basis on the basis of the aggregate principal amount (or accreted value, as applicable) of tendered Notes, Credit Agreement Obligations and Additional First Lien Obligations; provided that no Notes, the Credit Agreement Obligations or Additional First Lien Obligations will be selected and purchased in an unauthorized denomination. Upon completion of any Asset Disposition Offer, the amount of Applicable Proceeds and Excess Proceeds shall be reset at zero.
(f) Notwithstanding any other provisions of this covenant, (i) to the extent that any of or all the Net Proceeds or Applicable Proceeds of any Asset Sale by a Foreign Subsidiary or an Excluded Domestic Subsidiary (a “Foreign Disposition”) is (x) prohibited or delayed by applicable local law, (y) restricted by applicable organizational documents or any agreement or (z) subject to
Appears in 1 contract
Sources: Indenture (AMC Networks Inc.)
Asset Sales. The Company shall not, and shall not permit any of its Restricted Subsidiaries to, consummate an Asset Sale unless (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 (provided that the sale, lease, conveyance or other disposition of all or substantially all of the assets of the Company will be governed by Section 4.14 hereof and/or Section 5.01 hereof and not by the provisions of this Section 4.10), or such (ii) issue or sell Equity Interests 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, (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 (x) the Company (or the Restricted Subsidiary, as the case may be, ) receives consideration at the time of such Asset Sale at least equal to the fair market value (evidenced by a resolution of the Board of Directors set forth in an Officers' Certificate delivered to the Trustee, and for Asset Sales having a fair market value or net proceeds in excess of $5.0 million, evidenced by a Board Resolution delivered to the Trustee) of the assets or Equity Interests issued or sold or otherwise disposed of and (iiy) at least 75% of the consideration therefor received by the Company or such Restricted Subsidiary is in the form of cash or Cash Equivalents; provided provided, however, that the amount of (aA) any liabilities (as shown on the Company's or such Restricted Subsidiary's most recent balance sheetsheet or in the notes thereto) of the Company or such any Restricted Subsidiary (other than contingent liabilities and liabilities that are by their terms subordinated to the Notes or any guarantee thereofGuarantee) that are assumed by the transferee of any such assets pursuant to a customary novation agreement that releases the Company or such Restricted Subsidiary from further liability, liability and (bB) any securities, notes or other obligations received by the Company or any such Restricted Subsidiary from such transferee that are immediately converted by the Company or such Restricted Subsidiary into cash (to the extent of the cash received) and (c) escrowed cash that the Company reasonably believes will be released from escrow within 365 days from the date of consummation of such Asset Saleor Cash Equivalents, in each case shall be deemed to be cash for purposes of this provision; and provided, further, that the 75% 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 75% limitation. Notwithstanding the immediately preceding paragraphforegoing: (i) a transfer of assets by the Company to a Wholly Owned Restricted Subsidiary or by a Wholly Owned Restricted Subsidiary to the Company or to another Wholly Owned Restricted Subsidiary, (ii) an issuance of Equity Interests (other than Disqualified Stock) by a Wholly Owned Restricted Subsidiary to the Company or another Wholly Owned Restricted Subsidiary, (iii) issuances of Equity Interests by the Company pursuant to warrants outstanding on the date of this Indenture, (iv) a Restricted Payment that is permitted by Section 4.07 hereof, (v) the surrender or waiver of contract rights or the settlement, release or surrender of contract, tort or other claims of any kind (other than assignment of such rights or claims for value outside the ordinary course of business) or (vi) the grant in the ordinary course of business of any non-exclusive license of patents, trademarks, registration therefor and other similar intellectual property, will not be deemed to be an Asset Sale. In addition, notwithstanding the foregoing, the Company and any of its Restricted Subsidiaries will may create or assume Liens (or permit any foreclosure thereon) securing Indebtedness to the extent that such Lien does not violate Section 4.12 hereof. Within 270 days after the receipt of any Net Proceeds from any Asset Sale, the Company shall apply such Net Proceeds from such Asset Sale to permanently reduce Senior Debt in accordance with the terms of the Credit Agreement, if applicable, or to the extent not required to be permitted applied thereunder, may, at its option, apply such Net Proceeds to consummate repayment of Indebtedness of a Restricted Subsidiary (in the case of Net Proceeds from an Asset Sale without complying with such paragraph if (i) the Company or the applicable effected by a Restricted Subsidiary, as the case may be, receives consideration at the time of such Asset Sale at least equal ) or to the fair market value of the assets an investment in a Restricted Subsidiary or in another business or capital expenditure or other property sold, issued or otherwise disposed of (as evidenced by a resolution of the Company's Board of Directors set forth in an Officers' Certificate delivered to the Trustee) and (ii) at least 75% of the consideration for such Asset Sale constitutes a controlling interest in a Permitted Business, long-term assets used term/tangible assets, in each case, in the same or useful in a Permitted Business and/or cash or Cash Equivalents; provided that any cash or Cash Equivalents received by similar line of business as the Company or any of its Restricted Subsidiaries were engaged in connection with any Asset Sale permitted to be consummated under on the date of this paragraph shall constitute Net Proceeds subject to the provisions of the next succeeding paragraph. Within 365 days of the receipt of any Net Proceeds from an Asset Sale, the Company may apply such Net Proceeds, at its option, (i) to repay Senior Debt under a Credit Facility (and to correspondingly reduce commitments with respect thereto Indenture or in the case of revolving borrowings) or (ii) to the acquisition of a controlling interest in a Permitted Business, the making of a capital expenditure or the acquisition of other long-term assets, in each case, used or useful in a Permitted Businessbusinesses reasonably related thereto. Pending the final application of any such Net Proceeds, the Company may temporarily reduce Senior Debt or otherwise invest such Net Proceeds in any manner that is not prohibited by this Indenture. Any Net Proceeds from an Asset Sales Sale that are not applied or invested as provided in the first sentence of this paragraph shall will be deemed to constitute "Excess Proceeds." ". When the aggregate amount of Excess Proceeds exceeds $10.0 5.0 million, the Company shall will be required to make an offer Asset Sale Offer to all Holders of Notes and all holders of other pari passu Indebtedness containing provisions similar to those set forth in this Indenture with respect to offers to purchase or redeem such other pari passu Indebtedness with the proceeds of sales of assets (an "Asset Sale Offer") to purchase the maximum principal amount of Notes and such other pari passu Indebtedness that may be purchased out of the Excess Proceeds Proceeds, at an offer price in cash in an amount equal to 100101% of the principal amount thereof, thereof plus accrued and unpaid interest and Liquidated Damages, if any, thereon to the date of purchase, in accordance with the procedures set forth in this Indenture and in such other pari passu IndebtednessSection 3.09 hereof. To the extent that the aggregate amount of Notes and such other pari passu Indebtedness tendered pursuant to an Asset Sale Offer is less than the Excess Proceeds, the Company may use any remaining Excess Proceeds for any purpose not otherwise prohibited by this Indenturegeneral corporate purposes. If the aggregate principal amount of Notes and such other pari passu Indebtedness surrendered by Holders thereof exceeds the amount of Excess Proceeds, the Trustee shall select the Notes and such other pari passu Indebtedness to be purchased on a pro rata basis. Upon completion of an Asset Sale Offersuch offer to purchase, the amount of Excess Proceeds shall be reset at zero.
Appears in 1 contract
Sources: Indenture (Rayovac Corp)
Asset Sales. The Company Any and all proceeds derived from the sale or disposition (whether voluntary or involuntary), or on account of damage or destruction, of the real estate, furniture, fixtures, equipment or other fixed assets of any Borrower shall notbe paid over to the Agent as and for a mandatory prepayment on the Term Notes; provided, however, that if at the time of receipt no amount is outstanding under the Term Notes or the amount received is in excess of the amount necessary to prepay the Term Notes in full, then such payment or excess (as appropriate) shall be held by the Agent as collateral security for the Borrowers' L/C Obligations if the Term Loans have been prepaid in full but Letters of Credit are outstanding and the Commitments shall not permit any of its Restricted Subsidiaries tobe ratably reduced by a like amount; provided, consummate an Asset Sale unless however, that (i) the Company or such Restricted Subsidiaryforegoing provisions shall be inapplicable to proceeds received by the Agent under the Collateral Documents if and so long as, as the case may be, receives consideration at the time of such Asset Sale at least equal pursuant to the fair market value (evidenced by a resolution terms of the Board of Directors set forth in an Officers' Certificate delivered Collateral Documents, the same are to be held by the Trustee) Agent and disbursed for the restoration, repair or replacement of the assets or Equity Interests issued or sold or otherwise disposed property in respect of and which such proceeds were received, (ii) at least 75% no prepayment shall be required with respect to the first $100,000 of net proceeds (i.e., gross proceeds net of out-of-pocket expenses incurred in effecting the sale or other disposition) received during any one calendar year from the sale or other disposition of equipment, furniture and fixtures of the consideration therefor received by the Company or such Restricted Subsidiary is Borrowers, taken together, which are worn out, obsolete or, in the form good faith judgment of cash such Borrower, no longer desirable to the efficient conduct of its business as then conducted, (iii) no prepayment shall be required with respect to proceeds received from the sale, damage or Cash Equivalents; provided that the amount destruction of (a) any liabilities (as shown on the Company's or such Restricted Subsidiary's most recent balance sheet) of the Company or such Restricted Subsidiary (other than contingent liabilities and liabilities that are by their terms subordinated to the Notes or any guarantee thereof) that are assumed by the transferee of any such assets pursuant to a customary novation agreement that releases the Company or such Restricted Subsidiary from further liability, (b) any securities, notes equipment or other obligations received assets subject to Liens permitted by the Company or such Restricted Subsidiary from such transferee that are immediately converted by the Company or such Restricted Subsidiary into cash (Section 8.12 hereof if and to the extent such proceeds are applied to reduce the indebtedness secured by such Liens and (iv) so long as no Default or Event of Default has occurred or is continuing the Borrowers may retain the proceeds derived from the sale, damage or destruction of fixtures, furniture and equipment if and to the extent that the relevant Borrower establishes to the reasonable satisfaction of the cash received) and (c) escrowed cash Agent that the Company reasonably believes will be released from escrow within 365 days from the date of consummation of such Asset Sale, in each case shall be deemed to be cash for purposes of this provision. Notwithstanding the immediately preceding paragraph, the Company and its Restricted Subsidiaries will be permitted to consummate an Asset Sale without complying with such paragraph if (i) the Company or the applicable Restricted Subsidiary, as the case may be, receives consideration at the time of such Asset Sale at least equal to the fair market value of the assets or other property equipment sold, issued damaged, or otherwise disposed of destroyed has been replaced (as evidenced by a resolution of the Company's Board of Directors set forth in an Officers' Certificate delivered to the Trustee) and (ii) at least 75% of the consideration for such Asset Sale constitutes a controlling interest in a Permitted Business, long-term assets used or useful in a Permitted Business and/or cash or Cash Equivalents; provided that any cash or Cash Equivalents received by the Company or any of its Restricted Subsidiaries in connection with any Asset Sale permitted to be consummated under this paragraph shall constitute Net Proceeds subject to the provisions of the next succeeding paragraph. Within 365 days of the receipt of any Net Proceeds from an Asset Sale, the Company may apply such Net Proceeds, at its option, (i) to repay Senior Debt under a Credit Facility (and to correspondingly reduce commitments with respect thereto repaired in the case of revolving borrowingsdamaged property) with fixtures, furniture or equipment of at least equal value and utility to that replaced (ii) to the acquisition of a controlling interest in a Permitted Business, the making of a capital expenditure or the acquisition of other long-term assets, in each case, used or useful in a Permitted Business. Pending the final application of before any such Net Proceeds, damage or destruction) which is subject to a first lien in favor of the Company may temporarily reduce Senior Debt or otherwise invest such Net Proceeds Agent for the benefit of the Lenders. Nothing herein contained shall in any manner that is not prohibited by this Indenture. Any Net Proceeds from Asset Sales that are not applied impair or invested as provided otherwise affect the prohibitions against the sale or other disposition of Collateral contained herein and in the first sentence of this paragraph Collateral Documents. Each such prepayment shall be deemed applied to constitute "Excess Proceeds." When the aggregate amount of Excess Proceeds exceeds $10.0 million, the Company shall be required to make an offer to all Holders of Notes and all holders of other pari passu Indebtedness containing provisions similar to those set forth in this Indenture with respect to offers to purchase or redeem such other pari passu Indebtedness with the proceeds of sales of assets (an "Asset Sale Offer") to purchase the maximum principal amount of Notes and such other pari passu Indebtedness that may be purchased out remaining installments of the Excess Proceeds at an offer price Conversion Term Notes in cash in an amount equal to 100% the inverse order of maturity, ratably as among installments on both classes of Conversion Term Notes due on the principal amount thereof, plus accrued and unpaid interest and Liquidated Damages, if any, thereon to the same date of purchase, in accordance with the procedures set forth in this Indenture and in such other pari passu Indebtedness. To the extent that the aggregate amount of Notes and such other pari passu Indebtedness tendered pursuant to an Asset Sale Offer is less than the Excess Proceeds, the Company may use any remaining Excess Proceeds for any purpose not otherwise prohibited by this Indenture. If the aggregate principal amount of the installments due on each such class of the Conversion Term Notes, until the Conversion Term Notes have been fully paid and satisfied, with any remaining balance of such other pari passu Indebtedness surrendered by Holders thereof exceeds prepayment applied to the amount remaining installments of Excess Proceeds, the Trustee shall select Term Credit Notes in the Notes and such other pari passu Indebtedness to be purchased on a pro rata basis. Upon completion inverse order of an Asset Sale Offer, the amount of Excess Proceeds shall be reset at zeromaturity.
Appears in 1 contract
Asset Sales. The Company shall not, and shall not permit any of its Restricted Subsidiaries to:
(1) sell, consummate an Asset lease, convey or otherwise dispose of any assets (including by way of a Sale unless and Leaseback Transaction, but excluding a Qualifying Sale and Leaseback Transaction) other than sales of inventory in the ordinary course of business (provided that the sale, lease, conveyance or other disposition of all or substantially all of the assets of the Company will be governed by the provisions of Section 4.17 of the Indenture and/or the provisions of Section 5.1 of the Indenture and not by the provisions of this Section 4.16); or
(2) issue or sell Equity Interests of any of its Restricted Subsidiaries that in the case of either clause (1) or (2) above, whether in a single transaction or a series of related transactions:
(i) have a fair market value in excess of $2.0 million or
(ii) result in Net Proceeds in excess of $2.0 million (each of the foregoing, an "Asset Sale"), unless (x) the Company (or such the Restricted Subsidiary, as the case may be, ) receives consideration at the time of such Asset Sale at least equal to the fair market value (evidenced by an Officers' Certificate delivered to the Trustee, and for Asset Sales having a fair market value or resulting in Net Proceeds in excess of $10.0 million, 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 (iiy) at least 75% of the consideration therefor received by the Company or such Restricted Subsidiary is in the form of cash or Cash Equivalentslike-kind assets (in each case as determined in good faith by the Company, evidenced by a resolution of the Board of Directors and certified by an Officers' Certificate delivered to the Trustee); provided provided, however, that the amount of of
(aA) any liabilities (as shown on the Company's or such Restricted Subsidiary's most recent balance sheetsheet or in the notes thereto) of the Company or such Restricted Subsidiary (other than contingent liabilities and liabilities that are by their terms subordinated to the Notes or any guarantee thereofSubsidiary Guarantee) that are assumed by the transferee of any such assets pursuant to a customary novation agreement that releases the Company or such Restricted Subsidiary from further liability, and
(bB) any securities, notes or other obligations received by the Company or such Restricted Subsidiary from such transferee that are immediately converted by the Company or such Restricted Subsidiary into cash (to the extent of the cash received) and (c) escrowed cash that the Company reasonably believes will be released from escrow within 365 days from the date of consummation of such Asset Saleor Cash Equivalents, in each case shall be deemed to be cash for purposes of this provision; and provided, further, that the 75% limitation referred to in the foregoing clause (ii) (y) shall not apply to any Asset Sale in which the cash portion of the consideration received therefrom is equal to or greater than what the after-tax proceeds would have been had such Asset Sale complied with the aforementioned 75% limitation. Notwithstanding A transfer of assets or issuance of Equity Interests by the immediately preceding paragraphCompany to a Wholly Owned Restricted Subsidiary or by a Wholly Owned Restricted Subsidiary to the Company or to another Wholly Owned Restricted Subsidiary will not be deemed to be an Asset Sale. Within 360 days of any Asset Sale, the Company and may, at its Restricted Subsidiaries will be permitted option, apply an amount equal to consummate an Asset Sale without complying with such paragraph if (i) the Company or the applicable Restricted Subsidiary, as the case may be, receives consideration at the time of Net Proceeds from such Asset Sale at least equal either:
(1) to the fair market value of the assets permanently reduce Senior Debt or
(2) to an investment in a Restricted Subsidiary or in another business or capital expenditure or other property sold, issued or otherwise disposed of (as evidenced by a resolution of the Company's Board of Directors set forth in an Officers' Certificate delivered to the Trustee) and (ii) at least 75% of the consideration for such Asset Sale constitutes a controlling interest in a Permitted Business, long-term assets used or useful term/tangible assets, in a Permitted Business and/or cash or Cash Equivalents; provided that any cash or Cash Equivalents received by each case, in the same line of business as the Company or any of its Restricted Subsidiaries was engaged in connection with any Asset Sale permitted to be consummated under this paragraph shall constitute Net Proceeds subject to on the provisions date of the next succeeding paragraph. Within 365 days of the receipt of any Net Proceeds from an Asset Sale, the Company may apply such Net Proceeds, at its option, (i) to repay Senior Debt under a Credit Facility (and to correspondingly reduce commitments with respect thereto First Supplemental Indenture or in the case of revolving borrowings) businesses similar or (ii) to the acquisition of a controlling interest in a Permitted Business, the making of a capital expenditure or the acquisition of other long-term assets, in each case, used or useful in a Permitted Businessreasonably related thereto. Pending the final application of any such Net Proceeds, the Company may temporarily reduce Senior Bank Debt or otherwise invest such Net Proceeds in any manner that is not prohibited by this the Indenture. Any Net Proceeds from such Asset Sales Sale that are not applied or invested as provided in the first sentence of this paragraph shall will be deemed to constitute "Excess Proceeds." When the aggregate amount of Excess Proceeds exceeds $10.0 million, the Company shall be required to make an offer to all Holders of Notes and the Notes, all holders of other the 9 1/8% Notes, the 8 1/4% Notes, the 8 1/8% Notes and the 8 3/4% Notes and the holders of any future Indebtedness ranking pari passu Indebtedness containing provisions similar to those set forth in this Indenture with respect to offers to purchase or redeem such other pari passu Indebtedness with the proceeds of sales of assets Notes, which Indebtedness contains similar provisions requiring the Company to repurchase such Indebtedness (an "Asset Sale Offer") ), to purchase the maximum principal amount of Notes and such other pari passu Indebtedness that may be purchased out of the Excess Proceeds Proceeds, at an offer price in cash in an amount equal to 100% of the principal amount thereof, thereof plus accrued and unpaid interest and Liquidated Damagesinterest, if any, thereon to the date of purchase, in accordance with the procedures set forth in this Indenture the Indenture; provided, however, that prior to making any such Asset Sale Offer, the Company may, to the extent required by the indentures for the 10 1/8% Notes or the 11 1/8% Notes, use such Excess Proceeds to repurchase the 10 1/8% Notes and in such other pari passu Indebtednessthe 11 1/8% Notes. To the extent that the aggregate amount of Notes and such other pari passu Indebtedness (including the 9 1/8% Notes, the 8 1/4% Notes, the 8 1/8% Notes and the 8 3/4% Notes) tendered pursuant to an Asset Sale Offer is less than the Excess Proceeds, the Company may use any remaining Excess Proceeds for any purpose not otherwise prohibited by this Indenturegeneral corporate purposes. If the aggregate principal amount of Notes and such other pari passu Indebtedness surrendered by Holders thereof exceeds the amount of Excess Proceeds, the Trustee shall select the Notes and such other pari passu Indebtedness to be purchased on a pro rata basis. Upon completion of an Asset Sale Offersuch offer to purchase, the amount of Excess Proceeds shall be reset at zero. The Company shall comply with the requirements of Rule 14e-1 under the Exchange Act and any other securities laws and regulations thereunder to the extent those laws and regulations are applicable in connection with each repurchase of Notes pursuant to an Asset Sale Offer. To the extent that the provisions of any securities laws or regulations conflict with the provisions of this Section 4.16 of the Indenture, the Company shall comply with the applicable securities laws and regulations and shall not be deemed to have breached its obligations under the Asset Sale provisions of the Indenture by virtue of such conflict. An Asset Sale Offer shall be made pursuant to the provisions of Section 3.9 hereof. No later than the date which is five Business Days after the date on which the aggregate amount of Excess Proceeds exceeds $10.0 million, the Company shall notify the Trustee of such Asset Sale Offer and provide the Trustee with an Officers' Certificate setting forth the calculations used in determining the amount of Net Proceeds to be applied to the purchase of Notes. The Company shall commence or cause to be commenced the Asset Sale Offer on a date no later than 15 Business Days after such notice (the "Commencement Date").
Appears in 1 contract
Sources: First Supplemental Indenture (Iron Mountain Inc/Pa)
Asset Sales. The Company shall not, and shall not permit any of its Restricted Subsidiaries to, consummate an Asset Sale unless (i) the Company or such Restricted Subsidiary, as the case may be, receives consideration at the time of such Asset Sale at least equal to the fair market value (evidenced by a resolution of the Board of Directors set forth in an Officers' Certificate delivered to the Trustee) of the assets or Equity Interests issued or sold or otherwise disposed of and (ii) at least 75% of the consideration therefor received by the Company or such Restricted Subsidiary is in the form of cash or Cash Equivalents; provided that the amount of (a) any liabilities (as shown on the Company's or such Restricted Subsidiary's most recent balance sheet) of the Company or such Restricted Subsidiary (other than contingent liabilities and liabilities that are by their terms subordinated to the Notes or any guarantee thereof) that are assumed by the transferee of any such assets pursuant to a customary novation agreement that releases the Company or such Restricted Subsidiary from further liability, (b) any securities, notes or other obligations received by the Company or such Restricted Subsidiary from such transferee that are immediately converted by the Company or such Restricted Subsidiary into cash (to the extent of the cash received) and (c) escrowed cash that the Company reasonably believes will be released from escrow within 365 days from the date of consummation of such Asset Sale, in each case shall be deemed to be cash for purposes of this provision. Notwithstanding the immediately preceding paragraph, the Company and its Restricted Subsidiaries will be permitted to consummate an Asset Sale without complying with such paragraph if (i) the Company or the applicable Restricted Subsidiary, as the case may be, receives consideration at the time of such Asset Sale at least equal to the fair market value of the assets or other property sold, issued sold or otherwise disposed of (as evidenced determined in good faith by a resolution of the Company's Board of Directors), (ii) at least 75% of the consideration received by the Company or the Restricted Subsidiary, as the case may be, from such Asset Sale shall be cash or Cash Equivalents; provided that the amount of (a) any liabilities (as shown on the Company's or such Restricted Subsidiary's most recent balance sheet) of the Company or any such Restricted Subsidiary (other than liabilities that are by their terms subordinated to the Notes) that are assumed by the transferee of any such assets, and (b) any notes or other obligations received by the Company or any such Restricted Subsidiary from such transferee that are immediately converted by the Company or such Restricted Subsidiary into cash (to the extent of the cash received), shall be deemed to be cash for the purposes of this provision, and (iii) upon the consummation of an Asset Sale, the Company shall apply, or cause such Restricted Subsidiary to apply, the Net Cash Proceeds relating to such Asset Sale within 365 days of receipt thereof either (A) to repay any Senior Debt and, in the case of any Senior Debt under any revolving credit facility, effect a commitment reduction under such revolving credit facility, (B) to reinvest in Productive Assets, or (C) a combination of prepayment, repurchase and investment permitted by the foregoing clauses (iii)(A) and (iii)(B). Pending the final application of any such Net Cash Proceeds, the Company or such Restricted Subsidiary may temporarily reduce Indebtedness under a revolving credit facility, if any, or otherwise invest such Net Cash Proceeds in Cash Equivalents. On the 366th day after an Asset Sale or such earlier date, if any, as the Board of Directors of the Company or of such Restricted Subsidiary determines not to apply the Net Cash Proceeds relating to such Asset Sale as set forth in an Officers' Certificate delivered to clauses (iii)(A), (iii)(B) or (iii)(C) of the Trusteenext preceding sentence (each, a "Net Proceeds Offer Trigger Date"), the aggregate amount of Net Cash Proceeds that have not been applied on or before such Net Proceeds Offer Trigger Date as permitted in clauses (iii)(A), (iii)(B) and (iiiii)(C) of the next preceding sentence (each a "Net Proceeds Offer Amount") shall be applied by the Company or such Restricted Subsidiary to make an offer to purchase (the "Net Proceeds Offer") on a date (the "Net Proceeds Offer Payment Date") not less than 30 nor more than 45 days following the applicable Net Proceeds Offer Trigger Date, from all Holders on a pro rata basis that amount of Notes equal to the Net Proceeds Offer Amount at a price equal to 100% of the principal amount of the Notes to be purchased, plus accrued and unpaid interest thereon to 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 non-cash consideration), then such conversion or disposition shall be deemed to constitute an Asset Sale hereunder and the Net Cash Proceeds thereof shall be applied in accordance with this covenant. Notwithstanding the foregoing, if a Net Proceeds Offer Amount is less than $5.0 million, the application of the Net Cash Proceeds constituting such Net Proceeds Offer Amount to a Net Proceeds Offer may be deferred until such time as such Net Proceeds Offer Amount plus the aggregate amount of all Net Proceeds Offer Amounts arising subsequent to the Net Proceeds Offer Trigger Date relating to such initial Net Proceeds Offer Amount from all Asset Sales by the Company and its Restricted Subsidiaries aggregates at least $5.0 million, at which time the Company or such Restricted Subsidiary shall apply all Net Cash Proceeds constituting all Net Proceeds Offer Amounts that have been so deferred to make a Net Proceeds Offer (the first date the aggregate of all such deferred Net Proceeds Offer Amounts is equal to $5.0 million or more shall be deemed to be a "Net Proceeds Offer Trigger Date"). Upon the completion of any Net Proceeds Offer in accordance with the terms of this Indenture, the Net Proceeds Offer Amount shall be reset at zero. Notwithstanding the two immediately preceding paragraphs, the Company and its Restricted Subsidiaries will be permitted to consummate an Asset Sale without complying with such paragraphs to the extent (i) at least 75% of the consideration for such Asset Sale constitutes a controlling interest Productive Assets, cash, Cash Equivalents and/or Marketable Securities and (ii) such Asset Sale is for fair market value (as determined in a Permitted Business, long-term assets used or useful in a Permitted Business and/or cash or Cash Equivalentsgood faith by the Company's Board of Directors); provided that any cash or Cash Equivalents consideration not constituting Productive Assets received by the Company or any of its Restricted Subsidiaries in connection with any Asset Sale permitted to be consummated under this paragraph shall constitute Net Proceeds be subject to the provisions of the next succeeding paragraph. Within 365 days of the receipt of any Net Proceeds from an Asset Sale, the Company may apply such Net Proceeds, at its option, (i) to repay Senior Debt under a Credit Facility (and to correspondingly reduce commitments with respect thereto in the case of revolving borrowings) or (ii) to the acquisition of a controlling interest in a Permitted Business, the making of a capital expenditure or the acquisition of other long-term assets, in each case, used or useful in a Permitted Business. Pending the final application of any such Net Proceeds, the Company may temporarily reduce Senior Debt or otherwise invest such Net Proceeds in any manner that is not prohibited by this Indenture. Any Net Proceeds from Asset Sales that are not applied or invested as provided in the first sentence of this paragraph shall be deemed to constitute "Excess Proceeds." When the aggregate amount of Excess Proceeds exceeds $10.0 million, the Company shall be required to make an offer to all Holders of Notes and all holders of other pari passu Indebtedness containing provisions similar to those set forth in this Indenture with respect to offers to purchase or redeem such other pari passu Indebtedness with the proceeds of sales of assets (an "Asset Sale Offer") to purchase the maximum principal amount of Notes and such other pari passu Indebtedness that may be purchased out of the Excess Proceeds at an offer price in cash in an amount equal to 100% of the principal amount thereof, plus accrued and unpaid interest and Liquidated Damages, if any, thereon to the date of purchase, in accordance with the procedures set forth in this Indenture and in such other pari passu Indebtednesstwo preceding paragraphs. To the extent that the aggregate amount provisions of Notes and such other pari passu Indebtedness tendered pursuant to an any securities laws or regulations conflict with the Asset Sale Offer is less than the Excess Proceedsprovisions of this Indenture, the Company may use any remaining Excess Proceeds for any purpose shall comply with the applicable securities laws and regulations and shall not otherwise prohibited by this Indenture. If be deemed to have breached its obligations under the aggregate principal amount of Notes and such other pari passu Indebtedness surrendered by Holders thereof exceeds the amount of Excess Proceeds, the Trustee shall select the Notes and such other pari passu Indebtedness to be purchased on a pro rata basis. Upon completion of an Asset Sale Offer, the amount provisions of Excess Proceeds shall be reset at zerothis Indenture by virtue thereof.
Appears in 1 contract
Sources: Indenture (Microclock Inc)
Asset Sales. The Company shall not, and shall not permit any of its Restricted Subsidiaries to, consummate an Asset Sale unless unless:
(ia) the Company Company, or such Restricted the Subsidiary, as the case may be, receives (i) consideration at the time of such the Asset Sale at least equal to the fair market value of the assets issued, sold or otherwise disposed of or (evidenced by ii) in the case of a lease of assets that constitute an Asset Sale, a lease providing for rents or other consideration which are no less favorable to the Company or the Subsidiary, as the case may be, than the prevailing market conditions;
(b) Company's Management Committee adopts a resolution of evidencing its determination that such consideration constitutes such fair market value, or such lease payments are at prevailing market conditions, as the Board of Directors set forth case may be, as certified in an Officers' Certificate delivered to the Trustee) of the assets or Equity Interests issued or sold or otherwise disposed of and ; and
(iic) at least 75% or, with the approval of the Management Committee of the Company, 50%, of the consideration therefor received by the Company or such Restricted the Subsidiary is in the form of cash or Cash EquivalentsCash; provided that the amount of provided, that:
(ai) any liabilities (as shown on the Company's or such Restricted the Subsidiary's most recent balance sheet) of the Company or such Restricted the Subsidiary (other than contingent liabilities and liabilities that are by their terms subordinated to the Notes or any guarantee thereofNotes) that are assumed by the transferee of any such of those assets pursuant to under a customary novation agreement that unconditionally releases the Company or such Restricted Subsidiary the Subsidiary, as the case may be, from further liability, liability will be deemed to be Cash for purposes of this provision; and
(bii) any securities, notes or other obligations received by the Company or such Restricted the Subsidiary from such the transferee that are immediately promptly, but in any event within 30 days of receipt, converted by the Company or such Restricted the Subsidiary into cash Cash (to the extent of the cash receivedCash received in that conversion) and (c) escrowed cash that the Company reasonably believes will be released from escrow within 365 days from the date of consummation of such Asset Sale, in each case shall be deemed to be cash Cash for purposes of this provision. Notwithstanding No later than the immediately preceding paragraph, Business Day following the Company and its Restricted Subsidiaries will be permitted to consummate an Asset Sale without complying with such paragraph if (i) the Company or the applicable Restricted Subsidiary, as the case may be, receives consideration at the time date 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 Company's Board of Directors set forth in an Officers' Certificate delivered to the Trustee) and (ii) at least 75% of the consideration for such Asset Sale constitutes a controlling interest in a Permitted Business, long-term assets used or useful in a Permitted Business and/or cash or Cash Equivalents; provided that any cash or Cash Equivalents received by the Company or any of its Restricted Subsidiaries in connection with any Asset Sale permitted to be consummated under this paragraph shall constitute Net Proceeds subject to the provisions of the next succeeding paragraph. Within 365 days of the receipt of any Net Proceeds from an Asset Sale, the Company may shall apply 100% of such Net Proceeds, at its option, (i) Proceeds to repay Senior Debt Indebtedness with respect to Permitted Priority Liens incurred or permitted pursuant to the terms of this Indenture in connection with, and secured by, the asset so sold and pay down the outstanding balance, if any, under a Credit the Liquidity Facility (or such lesser amount of the outstanding balance of the Liquidity Facility as approved by at least a majority in outstanding principal amount of the then outstanding Notes) and to correspondingly permanently reduce the loan commitments with respect thereto thereunder by the amount so prepaid. The Company shall use 50% of any remaining Net Proceeds from any Asset Sale after application pursuant to the prior sentence (or such lesser amount of Net Proceeds as are approved by at least a majority in outstanding principal amount of the case then outstanding Notes) as follows: (x) up to $20 million of revolving borrowings) or such amount may be deposited into the Escrow Account; and (iiy) to the acquisition of a controlling interest in a Permitted Businessextent not deposited into the Escrow Account, the making Company shall use such amount (the "REMAINING ASSET SALE PROCEEDS") to redeem the maximum principal amount of a capital expenditure or the acquisition Notes that may be redeemed out of other long-term assets, the Remaining Asset Sale Proceeds in each case, used or useful in a Permitted Businessaccordance with Section 3.8. Pending the final application applications of any such Net ProceedsProceeds from Asset Sales governed by the preceding paragraph, the Company or the applicable Subsidiary may temporarily reduce Senior Debt or otherwise invest such Net Proceeds in any manner that is not prohibited by this Indenture. Any Net Proceeds from Asset Sales that are not applied or invested as provided in the first sentence of this paragraph Cash which shall be deemed held in an account in which the Trustee shall have a first priority perfected security interest, subject to constitute "Excess Proceeds." When Permitted Priority Liens, for the aggregate amount benefit of Excess Proceeds exceeds $10.0 million, the Company shall be required to make an offer to all Holders of Notes and all holders of other pari passu Indebtedness containing provisions similar to those set forth in this Indenture with respect to offers to purchase or redeem such other pari passu Indebtedness with the proceeds of sales of assets (an "Asset Sale Offer") to purchase the maximum principal amount of Notes and such other pari passu Indebtedness that may be purchased out of the Excess Proceeds at an offer price in cash in an amount equal to 100% of the principal amount thereofand, plus accrued and unpaid interest and Liquidated Damages, if any, thereon subject to the date of purchase, in accordance with the procedures set forth in this Indenture and in such other pari passu Indebtedness. To the extent that the aggregate amount of Senior Notes and such other pari passu Indebtedness tendered pursuant to an Asset Sale Offer is less than the Excess ProceedsIntercreditor Agreement, the Company may use any remaining Excess Proceeds for any purpose not otherwise prohibited by this Indenture. If the aggregate principal amount of Notes and such other pari passu Indebtedness surrendered by Holders thereof exceeds the amount of Excess Proceeds, the Trustee shall select the Notes and such other pari passu Indebtedness to be purchased on a pro rata basis. Upon completion of an Asset Sale Offer, the amount of Excess Proceeds shall be reset at zeroJunior Notes.
Appears in 1 contract
Sources: Indenture (Komag Inc /De/)
Asset Sales. The Company shall not, and shall not permit any of its Restricted Subsidiaries to, consummate engage in an Asset Sale unless each of the following requirements is satisfied:
(i) the Company or such Restricted Subsidiary, as the case may be, receives consideration at the time of such Asset Sale at least equal to the fair market value (evidenced by a resolution of the Board of Directors set forth in an Officers' Certificate delivered to the Trustee) Fair Market Value of the assets or Equity Interests issued or sold or otherwise disposed of and of;
(ii) at least 75% of the consideration therefor received by the Company or such Restricted Subsidiary is in the form of cash or Cash Equivalentsand/or Marketable Securities; provided PROVIDED that the amount of of
(aA) any liabilities (as shown on the Company's or such Restricted Subsidiary's most recent balance sheetsheet or in the notes thereto) of the Company or such any of its Restricted Subsidiary Subsidiaries (other than contingent liabilities and liabilities that are by their terms subordinated to the Notes or any guarantee thereofNote Guarantee) that are assumed by the transferee Transferee of any such assets pursuant to a customary novation agreement that releases the Company or such Restricted Subsidiary from further liability, ; and
(bB) any securities, notes or other obligations received by the Company or any such Restricted Subsidiary from such transferee Transferee that are immediately contemporaneously (subject to ordinary settlement periods) converted by the Company or such Restricted Subsidiary into cash (to the extent of the cash received) and (c) escrowed cash that the Company reasonably believes will be released from escrow within 365 days from the date of consummation of such Asset Sale), in each case shall be deemed to be cash for purposes of this provision. Notwithstanding ; PROVIDED, FURTHER, that the immediately preceding paragraph, the Company and its Restricted Subsidiaries will be permitted to consummate an Asset Sale without complying with such paragraph if (i) the Company or the applicable Restricted Subsidiary, as the case may be, receives consideration at the time of such Asset Sale at least equal to the fair market value of the assets or other property sold, issued or otherwise disposed of (as evidenced by a resolution of the Company's Board of Directors set forth in an Officers' Certificate delivered to the Trustee) and (ii) at least 75% limitation referred to above shall not apply to any Transfer of assets in which the cash portion of the consideration for such Asset Sale constitutes a controlling interest in a Permitted Business, longreceived therefor is equal to or greater than the after-term assets used or useful in a Permitted Business and/or tax net cash or Cash Equivalents; provided proceeds that any cash or Cash Equivalents would have been received by the Company or any of its Restricted Subsidiaries in connection had a transaction involving the same assets complied with any the aforementioned 75% limitation but was not structured with the same tax benefits as the actual transaction; and
(iii) if such Asset Sale permitted involves the Transfer of Collateral, it complies with the provisions described under Section 10.4, all consideration received in the form of cash or Marketable Securities shall be paid directly by the purchaser of such Collateral to the Trustee for deposit into the Collateral Account, and all consideration received in any other form shall be consummated under this paragraph shall constitute Net Proceeds expressly made subject to the Lien of this Indenture and the applicable Security Documents (and shall otherwise comply with the provisions of the next succeeding paragraphthis Indenture applicable to After-Acquired Property). Within 365 367 days of after the receipt of any Net Proceeds from an Asset Sale, the Company may apply or such Restricted Subsidiary shall, subject to the following paragraph, cause such Net Proceeds, at its option, Proceeds to be applied as follows:
(i) to repay Senior Debt under a Credit Facility (and to correspondingly reduce commitments with respect thereto in the case of revolving borrowings) any Transfer of Collateral, to make an investment or expenditure for Replacement Assets, which shall be made subject to the Lien of this Indenture and the applicable Security Documents (and shall otherwise comply with the provisions of this Indenture applicable to After-Acquired Property); and
(ii) in all other cases:
(A) to the acquisition of a controlling interest repay Indebtedness outstanding under any Credit Agreement; or
(B) to make an investment in a Permitted Business, the making of a capital or expenditure or the acquisition of other long-term assets, in each case, used or useful in a Permitted Business. Pending the final application of any such Net Proceeds, the Company may temporarily reduce Senior Debt or otherwise invest such Net Proceeds in any manner that is not prohibited by this Indenturefor Replacement Assets. Any Net Proceeds from Asset Sales that are not applied or invested as provided in the first sentence of this preceding paragraph shall be deemed to constitute constitute, "Excess Proceeds." When the aggregate amount of Excess Proceeds exceeds $10.0 15.0 million, the Company shall be required to make an offer to all Holders of Notes and all holders of other pari passu Indebtedness containing provisions similar to those set forth in this Indenture with respect to offers to purchase or redeem such other pari passu Indebtedness with the proceeds of sales of assets (an "Asset Sale OfferASSET SALE OFFER") to purchase the maximum principal amount of Notes and such other pari passu Indebtedness that may be purchased out of the Excess Proceeds Proceeds, at an offer price in cash in an amount equal to 100% of the principal amount thereof, thereof plus accrued and unpaid interest and Liquidated Damages, if any, thereon to the date of purchase, in accordance with the procedures set forth in this Indenture and in such other pari passu IndebtednessSection 3.09 hereof. To the extent that the aggregate principal amount of Notes and such other pari passu Indebtedness tendered pursuant to an Asset Sale Offer is less than the Excess Proceeds, the Company or any Restricted Subsidiary may use any remaining Excess Proceeds for any purpose not otherwise prohibited by under this Indenture; PROVIDED, HOWEVER, that to the extent that all or any portion of any remaining Excess Proceeds comprises proceeds of Asset Sales of Collateral, such Excess Proceeds shall remain subject to the Lien of this Indenture and the applicable Security Documents and shall remain on deposit in the Collateral Account. If the aggregate principal amount of Notes and such other pari passu Indebtedness surrendered by Holders thereof exceeds the amount of Excess Proceeds, the Trustee shall select the Notes and such other pari passu Indebtedness to be purchased on a pro rata PRO RATA basis. Upon completion of an such Asset Sale Offer, the amount of Excess Proceeds shall be reset at zero. Notwithstanding the three immediately preceding paragraphs, the Company and the Restricted Subsidiaries shall be permitted to consummate an Asset Sale without complying with such paragraphs to the extent
(i) at least 75% of the consideration received in connection with such Asset Sale constitutes Replacement Assets or a combination of Replacement Assets and cash;
(ii) such Asset Sale is for Fair Market Value (which, in the case, of any Replacement Assets the Fair Market Value of which exceeds $3.0 million, shall be evidenced by the opinion of a Financial Advisor); PROVIDED that any Net Proceeds in the form of cash received by the Company or any of its Restricted Subsidiaries in connection with any Asset Sale permitted to be consummated pursuant to this paragraph shall be subject to the provisions of the two immediately preceding paragraphs; and
(iii) if such Asset Sale involves the Transfer of Collateral, the Company and the Restricted Subsidiaries comply with clause (iii) of the first paragraph of this Section 4.10. -67- The Company shall comply with the requirements of Rule 14e-1 under the Exchange Act and any other securities laws and regulations thereunder to the extent such laws and regulations are applicable in connection with the repurchase of the Notes pursuant to an Asset Sale Offer. To the extent that the provisions of any securities laws or regulations conflict with provisions of this Section 4.10, the Company shall comply with the applicable securities laws and regulations and shall not be deemed to have breached its obligations under this paragraph by virtue thereof.
Appears in 1 contract
Asset Sales. The Company shall not, and shall not permit any of its Restricted Subsidiaries to:
(1) sell, consummate an Asset lease, convey or otherwise dispose of any assets (including by way of a Sale unless and Leaseback Transaction, but excluding a Qualifying Sale and Leaseback Transaction) other than sales of inventory in the ordinary course of business (provided that the sale, lease, conveyance or other disposition of all or substantially all of the assets of the Company will be governed by the provisions of Section 4.18 of the Indenture and/or the provisions of Section 5.1 of the Indenture and not by the provisions of this Section 4.17); or
(2) issue or sell Equity Interests of any of its Restricted Subsidiaries that in the case of either clause (1) or (2) above, whether in a single transaction or a series of related transactions:
(i) have a fair market value in excess of $2.0 million; or
(ii) result in Net Proceeds in excess of $2.0 million (each of the foregoing, an "ASSET SALE"), unless (x) the Company (or such the Restricted Subsidiary, as the case may be, ) receives consideration at the time of such Asset Sale at least equal to the fair market value (evidenced by an Officers' Certificate delivered to the Trustee, and for Asset Sales having a fair market value or resulting in Net Proceeds in excess of $10.0 million, 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 (iiy) at least 75% of the consideration therefor received by the Company or such Restricted Subsidiary is in the form of cash or Cash Equivalentslike-kind assets (in each case as determined in good faith by the Company, evidenced by a resolution of the Board of Directors and certified by an Officers' Certificate delivered to the Trustee); provided provided, however, that the amount of of:
(aA) any liabilities (as shown on the Company's or such Restricted Subsidiary's most recent balance sheetsheet or in the notes thereto) of the Company or such Restricted Subsidiary (other than contingent liabilities and liabilities that are by their terms subordinated to the Notes or any guarantee thereofSubsidiary Guarantee) that are assumed by the transferee of any such assets pursuant to a customary novation agreement that releases the Company or such Restricted Subsidiary from further liability, assets; and
(bB) any securities, notes or other obligations received by the Company or such Restricted Subsidiary from such transferee that are immediately converted by the Company or such Restricted Subsidiary into cash (to the extent of the cash received) and (c) escrowed cash that the Company reasonably believes will be released from escrow within 365 days from the date of consummation of such Asset Saleor Cash Equivalents, in each case shall be deemed to be cash for purposes of this provision; and provided, further, that the 75% limitation referred to in the foregoing clause (ii) (y) shall not apply to any Asset Sale in which the cash portion of the consideration received therefrom is equal to or greater than what the after-tax proceeds would have been had such Asset Sale complied with the aforementioned 75% limitation. Notwithstanding A transfer of assets or issuance of Equity Interests by the immediately preceding paragraphCompany to a Wholly Owned Restricted Subsidiary or by a Wholly Owned Restricted Subsidiary to the Company or to another Wholly Owned Restricted Subsidiary will not be deemed to be an Asset Sale. Within 360 days of any Asset Sale, the Company and may, at its Restricted Subsidiaries will be permitted option, apply an amount equal to consummate an Asset Sale without complying with such paragraph if (i) the Company or the applicable Restricted Subsidiary, as the case may be, receives consideration at the time of Net Proceeds from such Asset Sale at least equal either:
(1) to the fair market value of the assets permanently reduce Senior Debt; or
(2) to an investment in a Restricted Subsidiary or in another business or capital expenditure or other property sold, issued or otherwise disposed of (as evidenced by a resolution of the Company's Board of Directors set forth in an Officers' Certificate delivered to the Trustee) and (ii) at least 75% of the consideration for such Asset Sale constitutes a controlling interest in a Permitted Business, long-term assets used or useful term/tangible assets, in a Permitted Business and/or cash or Cash Equivalents; provided that any cash or Cash Equivalents received by each case, in the same line of business as the Company or any of its Restricted Subsidiaries was engaged in connection with any Asset Sale permitted to be consummated under this paragraph shall constitute Net Proceeds subject to on the provisions date of the next succeeding paragraph. Within 365 days of the receipt of any Net Proceeds from an Asset Sale, the Company may apply such Net Proceeds, at its option, (i) to repay Senior Debt under a Credit Facility (and to correspondingly reduce commitments with respect thereto Second Supplemental Indenture or in the case of revolving borrowings) businesses similar or (ii) to the acquisition of a controlling interest in a Permitted Business, the making of a capital expenditure or the acquisition of other long-term assets, in each case, used or useful in a Permitted Businessreasonably related thereto. Pending the final application of any such Net Proceeds, the Company may temporarily reduce Senior Bank Debt or otherwise invest such Net Proceeds in any manner that is not prohibited by this the Indenture. Any Net Proceeds from such Asset Sales Sale that are not applied or invested as provided in the first sentence of this paragraph shall will be deemed to constitute "Excess ProceedsEXCESS PROCEEDS." When the aggregate amount of Excess Proceeds exceeds $10.0 million, the Company shall be required to make an offer to all Holders of Notes and the Notes, all holders of other pari passu the 8 1/4% Notes, the 8 1/8% Notes, the 8 5/8% Notes and the 7 3/4% Notes and the holders of any future Indebtedness containing provisions similar to those set forth in this Indenture with respect to offers to purchase or redeem such other pari passu Indebtedness ranking PARI PASSU with the proceeds of sales of assets Notes, which Indebtedness contains similar provisions requiring the Company to repurchase such Indebtedness (an "Asset Sale OfferASSET SALE OFFER") ), to purchase the maximum principal amount of Notes and such other pari passu Indebtedness that may be purchased out of the Excess Proceeds Proceeds, at an offer price in cash in an amount equal to 100% of the principal amount thereof, thereof plus accrued and unpaid interest and Liquidated Damagesinterest, if any, thereon to the date of purchase, in accordance with the procedures set forth in this Indenture and in such other pari passu Indebtednessthe Indenture. To the extent that the aggregate amount of Notes and such other pari passu PARI PASSU Indebtedness (including the 8 1/4% Notes, the 8 1/8% Notes, the 8 5/8% Notes and the 7 3/4% Notes) tendered pursuant to an Asset Sale Offer is less than the Excess Proceeds, the Company may use any remaining Excess Proceeds for any purpose not otherwise prohibited by this Indenturegeneral corporate purposes. If the aggregate principal amount of Notes and such other pari passu Indebtedness surrendered by Holders thereof exceeds the amount of Excess Proceeds, the Trustee shall select the Notes and such other pari passu Indebtedness to be purchased on a pro rata basis. Upon completion of an Asset Sale Offersuch offer to purchase, the amount of Excess Proceeds shall be reset at zero. The Company shall comply with the requirements of Rule 14e-1 under the Exchange Act and any other securities laws and regulations thereunder to the extent those laws and regulations are applicable in connection with each repurchase of Notes pursuant to an Asset Sale Offer. To the extent that the provisions of any securities laws or regulations conflict with the provisions of this Section 4.17, the Company shall comply with the applicable securities laws and regulations and shall not be deemed to have breached its obligations under the Asset Sale provisions of the Indenture by virtue of such conflict. An Asset Sale Offer shall be made pursuant to the provisions of Section 3.9 hereof. No later than the date which is five Business Days after the date on which the aggregate amount of Excess Proceeds exceeds $10.0 million, the Company shall notify the Trustee of such Asset Sale Offer and provide the Trustee with an Officers' Certificate setting forth the calculations used in determining the amount of Net Proceeds to be applied to the purchase of Notes. The Company shall commence or cause to be commenced the Asset Sale Offer on a date no later than 15 Business Days after such notice (the "COMMENCEMENT DATE").
(k) CHANGE OF CONTROL OFFER.
Appears in 1 contract
Sources: Second Supplemental Indenture (Iron Mountain Inc/Pa)
Asset Sales. The Company shall not, and shall not permit any of its Restricted Subsidiaries to, consummate an Asset Sale unless (i) the Company (or such the Restricted Subsidiary, as the case may be, ) receives consideration at the time of such Asset Sale at least equal to the fair market value as determined in good faith by the Company (evidenced by a resolution of the Board of Directors set forth in an Officers' Certificate delivered to the TrusteeTrustee with respect to any Asset Sale determined to have a value greater than $25.0 million) of the assets or Equity Interests issued or sold or otherwise disposed of and (ii) except in the case of Assets Held for Sale, at least 75% of the consideration therefor received by the Company or such Restricted Subsidiary is in the form of cash cash, Cash Equivalents or Cash EquivalentsMarketable Securities; provided that the amount of following amounts shall be deemed to be cash: (aw) any liabilities (as shown on the Company's or such Restricted Subsidiary's most recent balance sheet) ), of the Company or such any Restricted Subsidiary (other than contingent liabilities and liabilities that are by their terms subordinated to the Notes or any guarantee thereof) that are assumed by the transferee of any such assets pursuant to a customary novation agreement that releases the Company or such Restricted Subsidiary from further liability, (bx) any securities, notes or other obligations received by the Company or any such Restricted Subsidiary from such transferee that are immediately contemporaneously (subject to ordinary settlement periods) converted by the Company or such Restricted Subsidiary into cash (to the extent of the cash received), (y) and (c) escrowed cash that the Company reasonably believes will be released from escrow within 365 days from the date of consummation of such Asset Sale, in each case shall be deemed to be cash for purposes of this provision. Notwithstanding the immediately preceding paragraph, the Company and its Restricted Subsidiaries will be permitted to consummate an Asset Sale without complying with such paragraph if (i) the Company or the applicable Restricted Subsidiary, as the case may be, receives consideration at the time of such Asset Sale at least equal to the fair market value of the assets or other property sold, issued or otherwise disposed of (as evidenced by a resolution of the Company's Board of Directors set forth in an Officers' Certificate delivered to the Trustee) and (ii) at least 75% of the consideration for such Asset Sale constitutes a controlling interest in a Permitted Business, long-term assets used or useful in a Permitted Business and/or cash or Cash Equivalents; provided that any cash or Cash Equivalents Designated Noncash Consideration received by the Company or any of its Restricted Subsidiaries in connection such Asset Sale; provided that the aggregate fair market value (as determined above) of such Designated Noncash Consideration, taken together with any Asset Sale permitted the fair market value at the time of receipt of all other Designated Noncash Consideration received pursuant to be consummated under this paragraph shall constitute clause (y) less the amount of Net Proceeds subject to previously realized in cash from prior Designated Noncash Consideration is less than 5% of Total Assets at the provisions of the next succeeding paragraph. Within 365 days time of the receipt of such Designated Noncash Consideration (with the fair market value of each item of Designated Noncash Consideration being measured at the time received and without giving effect to subsequent changes in value) and (z) Additional Assets received in an exchange of assets transaction. Within 360 days after the receipt of any cash Net Proceeds from an Asset Sale, the Company or such Restricted Subsidiary, at its option, may apply such cash Net Proceeds, at its option, (ia) to repay Senior Debt Indebtedness of the Company or any Restricted Subsidiary that is not subordinated in right of payment to the Notes or to repay debt under one or more Credit Facilities and, if such debt is revolving debt, to effect a Credit Facility corresponding commitment reduction thereunder, (and to correspondingly reduce commitments with respect thereto in the case of revolving borrowings) or (iib) to the acquisition of all or a controlling interest in portion of the assets of, or a majority of the Voting Stock of, another Permitted Business, the making of a capital expenditure or the acquisition of other long-term assets, in each case, assets or Investments that are used or useful in a Permitted Business. Pending the final application of any such Net Proceeds, the Company may temporarily reduce Senior Debt Business or otherwise invest such Net Proceeds (c) to an Investment in any manner that is not prohibited by this IndentureAdditional Assets. Any cash Net Proceeds from Asset Sales that are not applied or invested as provided in the first sentence of this paragraph shall be deemed to constitute "Excess Proceeds." When the aggregate amount of Excess Proceeds exceeds $10.0 15.0 million, the Company shall will be required to make an offer to all Holders of Notes and all holders of other Indebtedness that ranks pari passu Indebtedness with the Notes containing provisions similar to those set forth in this Indenture with respect to offers to purchase or redeem such other pari passu Indebtedness with the proceeds of sales of assets (an "Asset Sale Offer") to purchase the maximum principal amount of Notes and such other pari passu Indebtedness that may be purchased out of the Excess Proceeds Proceeds, at an offer price in cash in an amount equal to 100% of the principal amount thereof, thereof plus accrued and unpaid interest and Liquidated DamagesDamages thereon, if any, thereon to the date of purchase, in accordance with the procedures set forth in this Indenture and in such other pari passu Indebtedness. To the extent that the aggregate amount any Excess Proceeds remain after consummation of Notes and such other pari passu Indebtedness tendered pursuant to an Asset Sale Offer is less than the Excess ProceedsOffer, the Company may use any remaining such Excess Proceeds for any purpose not otherwise prohibited by this Indenture. If the aggregate principal amount of Notes and such other pari passu Indebtedness tendered into such Asset Sale Offer surrendered by Holders thereof exceeds the amount of Excess Proceeds, the Trustee shall select the Notes and such other pari passu Indebtedness to be purchased on a pro rata basis. Upon completion of an Asset Sale Offersuch offer to purchase, the amount of Excess Proceeds shall be reset at zero.
Appears in 1 contract
Sources: Indenture (Appalachian Realty Co)