Assets Sales. The Company shall not, and shall not permit any of its Restricted Subsidiaries to, consummate an Asset Sale unless (i) the Company (or the 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 80% of the consideration therefor received by the Company or such Restricted Subsidiary is in the form of cash; provided that the amount of (x) any liabilities (as shown on the Company's or such Restricted Subsidiary's most recent balance sheet), of the Company or any Restricted Subsidiary (other than contingent liabilities and liabilities that are by their terms subordinated to the Notes or any guarantee thereof) that are assumed by the transferee of any such assets pursuant to a customary novation agreement that releases the Company or such Restricted Subsidiary from further liability and (y) any securities, notes or other obligations received by the Company or any such Restricted Subsidiary from such transferee that are converted by the Company or such Restricted Subsidiary into cash within 180 days (to the extent of the cash received), shall be deemed to be cash for purposes of this provision. Within 360 days after the receipt of any Net Proceeds from an Asset Sale, the Company may apply such Net Proceeds, at its option, (a) to permanently repay Senior Debt, (and to correspondingly reduce commitments with respect thereto in the case of revolving borrowings), or (b) to the acquisition of a controlling interest in another business, the making of a capital expenditure or the acquisition of other long-term assets and parking facility agreements, in each case, in a Permitted Business. Pending the final application of any such Net Proceeds, the Company may temporarily reduce the revolving Indebtedness under the New Credit Facility or otherwise invest such Net Proceeds in any manner that is not prohibited by the Indenture. Any Net Proceeds from Asset Sales that are not applied or invested as provided in the first sentence of this paragraph will be deemed to constitute "Excess Proceeds." When the aggregate amount of Excess Proceeds exceeds $10.0 million, the Company will be required to make an offer to all Holders of Notes (an "Asset Sale Offer") to purchase the maximum principal amount of Notes that may be purchased out of the Excess Proceeds, at an offer price in cash in an amount equal to 100% of the principal amount thereof plus accrued and unpaid interest and Liquidated Damages thereon, if any, to the date of purchase, in accordance with the procedures set forth in the Indenture. To the extent that the aggregate amount of Notes tendered pursuant to an Asset Sale Offer is less than the Excess Proceeds, the Company may use any remaining Excess Proceeds for general corporate purposes. If the aggregate principal amount of Notes surrendered by Holders thereof exceeds the amount of Excess Proceeds, the Trustee shall select the Notes to be purchased on a pro rata basis. Upon completion of such offer to purchase, the amount of Excess Proceeds shall be reset at zero.
Appears in 3 contracts
Samples: Supplemental Indenture (Century Parking Inc), Supplemental Indenture (Apcoa Inc), Indenture (Standard Parking Ii LLC)
Assets Sales. (a) The Company shall will not, and shall will not permit any of its Restricted Subsidiaries to, consummate an Asset Sale unless unless:
(i1) the Company (or the Restricted Subsidiary, as the case may be) receives consideration at the time of such the Asset Sale at least equal to the fair market value (as determined by the Company's Board of Directors) of the assets or Equity Interests issued or sold or otherwise disposed of;
(2) such determination of fair market value 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 ; and
(ii3) at least 8075% of the consideration therefor received in the Asset Sale by the Company or such Restricted Subsidiary is in the form of cash; provided that . For purposes of this provision, each of the amount of following will be deemed to be cash:
(xa) any liabilities (Indebtedness, as shown on the Company's or such Restricted Subsidiary's most recent balance sheet), of the Company or any Restricted Subsidiary (other than contingent liabilities and liabilities that are by their terms subordinated to the Notes or any guarantee thereofSubsidiary Guarantee) that are is assumed by the transferee of any such assets pursuant to a customary novation agreement that releases if and only if the Company or such Restricted Subsidiary is released from any further liability and liability; and
(yb) any securities, notes or other obligations received by the Company or any such Restricted Subsidiary from such transferee that are contemporaneously, subject to ordinary settlement periods, converted by the Company or such Restricted Subsidiary into cash within 180 days (cash, to the extent of the cash received), shall be deemed to be cash for purposes of this provision. received in that conversion.
(b) Within 360 days after the receipt of any Net Proceeds from an Asset Sale, the Company or any such Restricted Subsidiary may apply such those Net Proceeds, Proceeds at its option, option to any combination of the following:
(a1) to permanently repay Senior Debt, ;
(and 2) to correspondingly reduce commitments with respect thereto acquire all or substantially all of the properties or assets of one or more other Persons primarily engaged in the case Oil and Gas Business, and, for this purpose, a division or line of revolving borrowings), or business of a Person shall be treated as a separate Person;
(b3) to acquire a majority of the acquisition Voting Stock of a controlling interest one or more other Persons primarily engaged in another business, the making of a Oil and Gas Business;
(4) to make one or more capital expenditure or the acquisition of expenditures; or
(5) to acquire other long-term assets that are used or useful in the Oil and parking facility agreements, in each case, in a Permitted Gas Business. .
(c) Pending the final application of any such Net Proceeds, the Company or any such Restricted Subsidiary may temporarily reduce the revolving Indebtedness under the New Credit Facility credit borrowings or otherwise invest such the Net Proceeds in any manner that is not prohibited by the this Indenture. Any Net Proceeds from Asset Sales that are not applied or invested as provided in the first sentence of this paragraph preceding Section 3.7(b) will be deemed to constitute "Excess Proceeds." When "
(d) On the 361st day after the Asset Sale (or, at the Company's option, any earlier date), if the aggregate amount of Excess Proceeds then exceeds $10.0 million20,000,000, the Company will be required to make an offer to all Holders of Notes (an "Asset Sale Offer") to all Holders of Notes, and all holders of other Indebtedness that is pari passu with the Notes containing provisions similar to those set forth in this Indenture with respect to offers to purchase or redeem with the proceeds of sales of assets, to purchase the maximum principal amount of Notes and such other pari passu Indebtedness that may be purchased out of the Excess Proceeds, at an . 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 thereonAdditional Interest, if any, to the date of purchasesettlement, and will be payable in accordance with cash. If the procedures set forth Asset Sale Payment Date is on or after an interest record date and on or before the related interest payment date, any accrued and unpaid interest (including Additional Interest, if any) will be paid to the Person in whose name a Note is registered at the Indenture. To the extent that the aggregate amount close of business on such record date, and no additional interest will be payable to Holders who tender Notes tendered pursuant to the Asset Sale Offer. If any Excess Proceeds remain after consummation of an Asset Sale Offer is less than the Excess ProceedsOffer, the Company may use any remaining those Excess Proceeds for general corporate purposesany purpose not otherwise prohibited by this Indenture. If the aggregate principal amount of Notes surrendered by Holders thereof and other pari passu Indebtedness tendered into such Asset Sale Offer exceeds the amount of Excess Proceeds, the Trustee shall will select the Notes to be purchased on a pro rata basisbasis on the basis of the aggregate principal amount of tendered Notes and other pari passu Indebtedness. Upon completion of such offer to purchaseeach Asset Sale Offer, the amount of Excess Proceeds shall will be reset at zero.
(e) The Asset Sale Offer will remain open for a period of 20 Business Days following its commencement, except to the extent that a longer period is required by applicable law (the "Asset Sale Offer Period"). No later than five Business Days after the termination of the Asset Sale Offer Period (the "Asset Sale Payment Date"), the Company will purchase the principal amount of Notes and other pari passu Indebtedness required to be purchased pursuant to this covenant (the "Asset Sale Offer Amount") or, if less than the Asset Sale Offer Amount has been so validly tendered, all Notes and other pari passu Indebtedness validly tendered in response to the Asset Sale Offer. On or before the Asset Sale Payment Date, the Company will, to the extent lawful, accept for payment, on a pro rata basis to the extent necessary, the Asset Sale Offer Amount of Notes and other pari passu Indebtedness or portions thereof so validly tendered and not properly withdrawn pursuant to the Asset Sale Offer, or if less than the Asset Sale Offer Amount has been validly tendered and not properly withdrawn, all Notes and other pari passu Indebtedness so validly tendered and not properly withdrawn. The Company will deliver to the Trustee an Officers' Certificate stating that such Notes or portions thereof were accepted for payment by the Company in accordance with the terms of this covenant; and, in addition, the Company will make such deliveries of all certificates and notes as are required by the agreements governing the other pari passu Indebtedness. The Company or the Paying Agent, as the case may be, will promptly (but in any case not later than five Business Days after the termination of the Asset Sale Offer Period) mail or deliver to each tendering Holder of Notes, an amount equal to the purchase price of the Notes so validly tendered and not properly withdrawn by such Holder and accepted by the Company for purchase, and the Company will promptly issue a new Note, and the Trustee, upon delivery of an Officers' Certificate from the Company, will authenticate and mail or deliver such new Note to such Holder, in a principal amount equal to any unpurchased portion of the Note surrendered. In addition, the Company will take any and all other actions required by the agreements governing the other pari passu Indebtedness. Any Note not so accepted will be promptly mailed or delivered by the Company to the Holder thereof. The Company will publicly announce the results of the Asset Sale Offer on or as soon as practicable after the Asset Sale Payment Date.
(f) The Company will comply with the requirements of Rule 14e-1 under the Exchange Act and any other securities laws and regulations thereunder to the extent those laws and regulations are applicable in connection with each repurchase of Notes pursuant to an Asset Sale Offer. To the extent that the provisions of any securities laws or regulations conflict with the Asset Sale provisions hereunder, 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 hereunder by virtue of such conflict.
(g) The Trustee shall be under no obligation to ascertain the occurrence of an Asset Sale, or to determine or calculate Excess Proceeds, the Asset Sale Offer Period, the Asset Sale Payment Date or the Asset Sale Offer Amount, or give any notice with respect thereto. The Trustee may conclusively assume, in the absence of written notice to the contrary from the Company or a Holder or Holders of Notes, that no Asset Sale has occurred.
Appears in 2 contracts
Assets Sales. The Company shall not, and shall not permit any of its Restricted Subsidiaries to, consummate an Asset Sale unless (i) the Company (or the 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 8075% of the consideration therefor received by the Company or such Restricted Subsidiary is in the form of cash; provided PROVIDED that the amount of (xa) any liabilities (as shown on the Company's or such Restricted Subsidiary's most recent balance sheet), of the Company or any Restricted Subsidiary (other than contingent liabilities and liabilities that are by their terms subordinated to the Notes or any guarantee thereof) that are assumed by the transferee of any such assets pursuant to a customary novation agreement that releases the Company or such Restricted Subsidiary from further liability and (yb) any securities, notes or other obligations received by the Company or any such Restricted Subsidiary from such transferee that are immediately converted by the Company or such Restricted Subsidiary into cash within 180 days (to the extent of the cash received), shall be deemed to be cash for purposes of this provisionprovision and, PROVIDED FURTHER, that the 75% limitation referred to in clause (ii) will 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. Within 360 365 days after the receipt of any Net Proceeds from an Asset Sale, the Company may apply such Net Proceeds, at its option, (a) to permanently repay Senior Debt, Debt (and to correspondingly reduce commitments with respect thereto in the case of revolving borrowings), ) or (b) to the acquisition of a controlling interest in another business, the making of a capital expenditure or the acquisition of other long-term assets and parking facility agreementsassets, in each case, by the Company or any Restricted Subsidiary and in a Permitted Businessaccordance with the 41 terms hereof. Pending the final application of any such Net Proceeds, the Company may temporarily reduce the revolving Indebtedness under the New Credit Facility Senior Debt or otherwise invest such Net Proceeds in any manner that is not prohibited by the Indenturehereby. Any Net Proceeds from Asset Sales that are not applied or invested as provided in the first sentence of this paragraph will be deemed to constitute "Excess ProceedsEXCESS PROCEEDS." When the aggregate amount of Excess Proceeds exceeds $10.0 5.0 million, the Company will be required to make an offer to all Holders of Notes (an "Asset Sale OfferASSET SALE OFFER") to purchase the maximum principal amount of 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 plus accrued and unpaid interest and Liquidated Damages thereonDamages, if any, thereon to the date of purchase, in accordance with the procedures set forth in the Indentureherein. To the extent that the aggregate amount of Notes tendered pursuant to an Asset Sale Offer is less than the Excess Proceeds, the Company may use any remaining Excess Proceeds for general corporate purposes. If the aggregate principal amount of Notes surrendered by Holders thereof exceeds the amount of Excess Proceeds, the Trustee shall select the Notes to be purchased on a pro rata basis. Upon completion of such offer to purchase, the amount of Excess Proceeds shall be reset at zero. Notwithstanding the immediately preceding paragraph, the Company and its Restricted Subsidiaries 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 assets or other property of a kind usable by the Company and its Restricted Subsidiaries in the business of the Company and its Restricted Subsidiaries as conducted by the Company and its Restricted Subsidiaries on the date hereof; PROVIDED that any consideration not constituting assets or property of a kind usable by the Company and its Restricted Subsidiaries in the business conducted by them on the date of such Asset Sale received by the Company or any of its Restricted Subsidiaries in connection with any Asset Sale permitted to be consummate under this paragraph shall constitute Net Proceeds subject to the provisions of the two succeeding paragraphs.
Appears in 1 contract
Assets Sales. The Company shall not, and shall not permit any of its Restricted Subsidiaries to, consummate an Asset Sale unless (i) the Company (or the 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 8075% of the consideration therefor received by the Company or such Restricted Subsidiary is in the form of cash(A) cash or Cash Equivalents or (B) Qualified Proceeds; provided that the aggregate fair market value of Qualified Proceeds (other than cash or Cash Equivalents), which may be received in consideration for asset sales pursuant to this clause (ii)(B) shall not exceed $7.5 million since the Issue Date; provided, further, that the amount of (x) any liabilities (as shown on the Company's or such Restricted Subsidiary's most recent balance sheet), of the Company or any Restricted Subsidiary (other than contingent liabilities and liabilities that are by their terms subordinated to the Notes or any guarantee 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 (y) any securities, notes or other obligations received by the Company or any such Restricted Subsidiary from such transferee that are converted by the Company or such Restricted Subsidiary into cash within 180 days (to the extent of the cash received)) within 180 days following the closing of such Asset Sale, shall be deemed to be cash for purposes of this provision. Within 360 395 days after the receipt of any Net Proceeds from an Asset Sale, the Company or its Restricted Subsidiaries may apply such Net Proceeds, at its option, (a) to permanently repay Senior Debt, (and to correspondingly reduce commitments with respect thereto in Indebtedness of a Restricted Subsidiary of the case of revolving borrowings)Company, or (b) to the acquisition of a controlling interest in another businessinvestment in, or the making of a capital expenditure or the acquisition of other long-term property or assets and parking facility agreements, in each case, case used or useable in a Permitted Business, or Capital Stock of any Person primarily engaged in a Permitted Business if, as a result of the acquisition by the Company or any Restricted Subsidiary thereof, such Person becomes a Restricted Subsidiary, or (c) as combination of the uses described in clauses (a) and (b). Pending the final application of any such Net Proceeds, the Company or its Restricted Subsidiaries may temporarily reduce Indebtedness of a Restricted Subsidiary of the revolving Indebtedness under the New Credit Facility Company or otherwise invest such Net Proceeds in any manner that is not prohibited by the this Indenture. Any Net Proceeds from Asset Sales other than 20% of the net proceeds from any sale of all or substantially all of the Capital Stock or assets of the Company's Popular Club Plan business or Clifford & Wills business (as each such business is coxxxxxxxxd ox xxx Issue Date) which have been utilized to repay, redeem, repurchase or otherwise retire outstanding Notes, that are not applied or invested as provided in the first sentence of this paragraph will be deemed to constitute "Excess Proceeds." When the aggregate amount of Excess Proceeds exceeds $10.0 millionmillion (an "Asset Sale Offer Triggering Event"), the Company will be required to make an offer to all Holders of Notes and, to the extent required by the terms of any Indebtedness ranking pari passu with the Notes ("Pari Passu Indebtedness") to all holders of such Pari Passu Indebtedness (an "Asset Sale Offer") ), to purchase the maximum principal amount of Notes and any such Pari Passu Indebtedness that may be purchased out of the Excess Proceeds, at an offer price in cash in an amount equal to 100% of the principal amount thereof plus accrued and unpaid interest and Liquidated Damages thereon, if any, to the date of purchasepurchase (or, in the case of repurchases of Notes prior to October 15, 2002, at a purchase price equal to 100% of the Accreted Value thereof plus Liquidated Damages, as of the date of repurchase), in accordance with the procedures set forth in the IndentureSection 3.09 hereof or such Pari Passu Indebtedness, as applicable. To the extent that the aggregate principal amount at maturity of Notes (or Accreted Value, as the case may be) and any such Pari Passu Indebtedness tendered pursuant to an Asset Sale Offer is less than the Excess Proceeds, the Company or its Restricted Subsidiaries may use any remaining Excess Proceeds for general corporate purposes. If the aggregate principal amount at maturity (or Accreted Value, as the case may be) of Notes and any such Pari Passu Indebtedness surrendered by Holders holders thereof exceeds the amount of Excess Proceeds, the Trustee shall select the Notes to be purchased on a pro rata basis. Upon completion of such offer to purchaseAsset Sale Offer, the amount of Excess Proceeds shall be reset at zero.
Appears in 1 contract
Samples: Indenture (J Crew Group Inc)
Assets Sales. (a) The Company shall will not, and shall will not permit any of its Restricted Subsidiaries to, consummate an Asset Sale unless unless:
(i) the Company (or 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) of the assets or Equity Interests issued or sold or otherwise disposed of and of;
(ii) such determination of fair market value shall be as determined in good faith by senior management of the Company or, if the consideration with respect to such Asset Sale exceeds $10,000,000, by the Company’s Board of Directors; and
(iii) at least 8075% of the aggregate consideration therefor received by the Company or such Restricted Subsidiary in the Asset Sale and all other Asset Sales since the date of this Indenture is in the form of cash or Cash Equivalents. For purposes of this provision, each of the following will be deemed to be cash; provided that the amount of :
(xA) any liabilities (Indebtedness, as shown on the Company's ’s or such Restricted Subsidiary's ’s most recent balance sheet), of the Company or any Restricted Subsidiary (other than contingent liabilities and liabilities that are by their terms subordinated to the Notes or any guarantee thereofSubsidiary Guarantee) that are is assumed by the transferee of any such assets pursuant to a customary novation agreement that releases if and only if the Company or such Restricted Subsidiary is released from any further liability and liability; and
(yB) any securities, notes or other obligations received by the Company or any such Restricted Subsidiary from such transferee that are contemporaneously, subject to ordinary settlement periods, converted by the Company or such Subsidiary into cash, to the extent of the cash received in that conversion; and
(iv) without limitation of the provisions described in Section 3.20, to the extent that any consideration received by the Company or such Restricted Subsidiary into cash within 180 days (in such Asset Sale consists of assets that constitute Collateral, such assets, including assets of any Person that becomes a Guarantor as a result of such transaction, are added to the extent Collateral within the time periods set forth in Section 3.20.
(b) Within 30 days after the receipt of any Net Proceeds from an Asset Sale (or, at the Company’s option, any earlier date), if the aggregate amount of Net Proceeds, when combined with any Net Proceeds from Asset Sales that have not been applied or invested as provided in accordance with this Section, exceeds $20,000,000, the Company will make an offer (an “Asset Sale Offer”), to all Holders of the cash received)Notes and holders of Pari First Lien Indebtedness outstanding to purchase the maximum principal amount of Notes and such other Pari First Lien Indebtedness that may be purchased out of such Net Proceeds. The offer price in any Asset Sale Offer will be equal to 100% of the principal amount plus accrued and unpaid interest to the date of settlement, shall and will be deemed payable in cash. If the Asset Sale Payment Date is on or after an interest record date and on or before the related interest payment date, any accrued and unpaid interest will be paid to the Person in whose name a Note is registered at the close of business on such record date, and no additional interest will be payable to Holders who tender Notes pursuant to the Asset Sale Offer. If the aggregate principal amount of Notes and Pari First Lien Indebtedness tendered into such Asset Sale Offer exceeds the amount of Net Proceeds, the Trustee and any agent under the other Pari First Lien Indebtedness will select the Notes and other Pari First Lien Indebtedness to be cash for purposes purchased on a pro rata basis on the basis of this provision. the aggregate principal amount of tendered Notes and other Pari First Lien Indebtedness.
(c) [Reserved.]
(d) Within 360 days after the receipt of any Net Proceeds from an Asset Sale, the Company or any such Restricted Subsidiary may apply such any Net Proceeds, Proceeds remaining after compliance with Section 3.7(b) above at its option, option to any combination of the following:
(ai) to permanently repurchase or repay Senior DebtNotes or Pari First Lien Indebtedness;
(ii) to purchase Junior Lien Indebtedness pursuant to any offer to purchase such Junior Lien Indebtedness required by the terms of such Junior Lien Indebtedness at a purchase price not greater than 100% of the principal amount (or, if such Junior Lien Indebtedness was issued with original issue discount, 100% of the accreted value) of such Junior Lien Indebtedness, plus any accrued and unpaid interest thereon;
(and iii) to correspondingly reduce commitments with respect thereto acquire all or substantially all of the properties or assets of one or more other Persons primarily engaged in the case Oil and Gas Business, and, for this purpose, a division or line of revolving borrowings), or business of a Person shall be treated as a separate Person;
(biv) to acquire a majority of the acquisition Voting Stock of a controlling interest one or more other Persons primarily engaged in another business, the making of a Oil and Gas Business;
(v) to make one or more capital expenditure expenditures; or
(vi) to acquire other assets that are used or useful in the acquisition of other long-term assets Oil and parking facility agreements, in each case, in a Permitted Gas Business. .
(e) Pending the final application of any such Net Proceeds, the Company or any such Restricted Subsidiary may temporarily reduce the revolving Indebtedness under the New Credit Facility credit borrowings or otherwise invest such the Net Proceeds in any manner that is not prohibited by the this Indenture. Any Net Proceeds from Asset Sales that are not applied or invested as provided in the first sentence of this paragraph preceding Section 3.7(b) or Section 3.7(d) will be deemed to constitute "“Excess Proceeds." When ”
(f) On the 361st day after the Asset Sale (or, at the Company’s option, any earlier date), if the aggregate amount of Excess Proceeds then exceeds $10.0 million20,000,000, the Company will be required to make an offer Asset Sale Offer to all Holders of Notes, and all holders of other Indebtedness that is pari passu with the Notes (an "Asset Sale Offer") containing provisions similar to those set forth in this Indenture with respect to offers to purchase or redeem with the proceeds of sales of assets, to purchase the maximum principal amount of Notes and such other Indebtedness that is pari passu with the Notes that may be purchased out of the Excess Proceeds, at an . 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 thereon, if any, to the date of purchasesettlement, and will be payable in accordance with cash. If the procedures set forth Asset Sale Payment Date is on or after an interest record date and on or before the related interest payment date, any accrued and unpaid interest will be paid to the Person in whose name a Note is registered at the Indenture. To the extent that the aggregate amount close of business on such record date, and no additional interest will be payable to Holders who tender Notes tendered pursuant to the Asset Sale Offer. If any Excess Proceeds remain after consummation of an Asset Sale Offer is less than the Excess ProceedsOffer, the Company may use any remaining those Excess Proceeds for general corporate purposesany purpose not otherwise prohibited by this Indenture. If the aggregate principal amount of Notes surrendered by Holders thereof and other Indebtedness that is pari passu with the Notes tendered into such Asset Sale Offer exceeds the amount of Excess Proceeds, the Trustee shall will select the Notes to be purchased on a pro rata basisbasis on the basis of the aggregate principal amount of tendered Notes and other pari passu Indebtedness. Upon completion of such offer to purchaseeach Asset Sale Offer, the amount of Excess Proceeds shall will be reset at zero.
(g) Any Asset Sale Offer made pursuant to this Section 3.7 will remain open for a period of 20 Business Days following its commencement, except to the extent that a longer period is required by applicable law (the “Asset Sale Offer Period”). No later than five Business Days after the termination of the Asset Sale Offer Period (the “Asset Sale Payment Date”), the Company will purchase the principal amount of Indebtedness required to be purchased pursuant to this covenant (the “Asset Sale Offer Amount”) or, if less than the Asset Sale Offer Amount has been so validly tendered, all Indebtedness validly tendered in response to the Asset Sale Offer. On or before the Asset Sale Payment Date, the Company will, to the extent lawful, accept for payment, on a pro rata basis to the extent necessary, the Asset Sale Offer Amount of Indebtedness or portions thereof so validly tendered and not properly withdrawn pursuant to the Asset Sale Offer, or if less than the Asset Sale Offer Amount has been validly tendered and not properly withdrawn, all Indebtedness so validly tendered and not properly withdrawn. The Company will deliver to the Trustee an Officers’ Certificate stating that such Indebtedness or portions thereof was accepted for payment by the Company in accordance with the terms of this covenant; and, in addition, the Company will make such deliveries of all certificates, notes or other documentation as are required by the agreements governing such other Indebtedness. The Company or the Paying Agent, as the case may be, will promptly (but in any case not later than five Business Days after the termination of the Asset Sale Offer Period) mail or deliver to each tendering Holder of Notes, an amount equal to the purchase price of the Notes so validly tendered and not properly withdrawn by such Holder and accepted by the Company for purchase, and the Company will promptly issue a new Note, and the Trustee, upon delivery of an Officers’ Certificate from the Company, will authenticate and mail or deliver such new Note to such Holder, in a principal amount equal to any unpurchased portion of the Note surrendered. In addition, the Company will take any and all other actions required by the agreements governing such other Indebtedness. Any Note not so accepted will be promptly mailed or delivered by the Company to the Holder thereof. The Company will publicly announce the results of the Asset Sale Offer on or as soon as practicable after the Asset Sale Payment Date.
(h) 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 or other Indebtedness pursuant to an Asset Sale Offer. To the extent that the provisions of any securities laws or regulations conflict with the Asset Sale provisions hereunder, 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 hereunder by virtue of such conflict.
(i) The Trustee shall be under no obligation to ascertain the occurrence of an Asset Sale, or to determine or calculate Net Proceeds, Excess Proceeds, the Asset Sale Offer Period, the Asset Sale Payment Date or the Asset Sale Offer Amount, or give any notice with respect thereto. The Trustee may conclusively assume, in the absence of written notice to the contrary from the Company or a Holder or Holders of Notes, that no Asset Sale has occurred.
Appears in 1 contract
Samples: Indenture (Venoco, Inc.)
Assets Sales. (a) The Company shall will not, and shall will not permit any of its Restricted Subsidiaries to, consummate an Asset Sale unless unless:
(i) the Company (or 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) of the assets or Equity Interests issued or sold or otherwise disposed of and of;
(ii) such determination of fair market value shall be as determined in good faith by senior management of the Company or, if the consideration with respect to such Asset Sale exceeds $10,000,000, by the Company’s Board of Directors; and
(iii) at least 8075% of the aggregate consideration therefor received by the Company or such Restricted Subsidiary in the Asset Sale and all other Asset Sales since the date of this Indenture is in the form of cash or Cash Equivalents. For purposes of this provision, each of the following will be deemed to be cash; provided that the amount of :
(xA) any liabilities (Indebtedness, as shown on the Company's ’s or such Restricted Subsidiary's ’s most recent balance sheet), of the Company or any Restricted Subsidiary (other than contingent liabilities and liabilities that are by their terms subordinated to the Notes or any guarantee thereofSubsidiary Guarantee) that are is assumed by the transferee of any such assets pursuant to a customary novation agreement that releases if and only if the Company or such Restricted Subsidiary is released from any further liability and liability; and
(yB) any securities, notes or other obligations received by the Company or any such Restricted Subsidiary from such transferee that are contemporaneously, subject to ordinary settlement periods, converted by the Company or such Subsidiary into cash, to the extent of the cash received in that conversion; and
(iv) without limitation of the provisions described in Section 3.20, to the extent that any consideration received by the Company or such Restricted Subsidiary into cash in such Asset Sale consists of assets that constitute Collateral, such assets, including assets of any Person that becomes a Guarantor as a result of such transaction, are added to the Collateral within 180 the time periods set forth in Section 3.20.
(b) Within 30 days (or, at the Company’s option, any earlier date) after the later of (i) the receipt of any Net Proceeds from an Asset Sale and (ii) the closing or termination of any offer to purchase First Lien Notes or Pari First Lien Indebtedness required by the agreements governing such Indebtedness following the receipt of such Net Proceeds (a “Senior Lien Asset Sale Offer”), if the aggregate amount of Net Proceeds, when combined with any Net Proceeds from Asset Sales that have not been applied or invested as provided in accordance with this Section (including pursuant to any Senior Lien Asset Sale Offer), exceeds $20,000,000, the Company will make an offer (an “Asset Sale Offer”), to all Holders of the Notes and holders of Pari Second Lien Indebtedness outstanding to purchase the maximum principal amount of Notes and such other Pari Second Lien Indebtedness that may be purchased out of such Net Proceeds. The offer price in any Asset Sale Offer will be equal to 100% of the principal amount plus accrued and unpaid interest to the extent date of settlement, and will be payable in cash. If the Asset Sale Payment Date is on or after an interest record date and on or before the related interest payment date, any accrued and unpaid interest will be paid to the Person in whose name a Note is registered at the close of business on such record date, and no additional interest will be payable to Holders who tender Notes pursuant to the Asset Sale Offer. If the aggregate principal amount of Notes and Pari First Second Indebtedness tendered into such Asset Sale Offer exceeds the amount of Net Proceeds, the Trustee and any agent under the other Pari Second Lien Indebtedness will select the Notes and other Pari Second Lien Indebtedness to be purchased on a pro rata basis on the basis of the cash received), shall be deemed to be cash for purposes aggregate principal amount of this provision. tendered Notes and other Pari Second Lien Indebtedness.
(c) [Reserved.]
(d) Within 360 days after the receipt of any Net Proceeds from an Asset Sale, the Company or any such Restricted Subsidiary may apply such any Net Proceeds, Proceeds remaining after compliance with Section 3.7(b) above at its option, option to any combination of the following:
(ai) to permanently repurchase or repay Senior DebtFirst Lien Notes or other Pari First Lien Indebtedness;
(ii) to repurchase or repay Notes or Pari Second Lien Indebtedness;
(iii) to purchase Junior Lien Indebtedness pursuant to any offer to purchase such Junior Lien Indebtedness required by the terms of such Junior Lien Indebtedness at a purchase price not greater than 100% of the principal amount (or, if such Junior Lien Indebtedness was issued with original issue discount, 100% of the accreted value) of such Junior Lien Indebtedness, plus any accrued and unpaid interest thereon;
(and iv) to correspondingly reduce commitments with respect thereto acquire all or substantially all of the properties or assets of one or more other Persons primarily engaged in the case Oil and Gas Business, and, for this purpose, a division or line of revolving borrowings), or business of a Person shall be treated as a separate Person;
(bv) to acquire a majority of the acquisition Voting Stock of a controlling interest one or more other Persons primarily engaged in another business, the making of a Oil and Gas Business;
(vi) to make one or more capital expenditure expenditures; or
(vii) to acquire other assets that are used or useful in the acquisition of other long-term assets Oil and parking facility agreements, in each case, in a Permitted Gas Business. .
(e) Pending the final application of any such Net Proceeds, the Company or any such Restricted Subsidiary may temporarily reduce the revolving Indebtedness under the New Credit Facility credit borrowings or otherwise invest such the Net Proceeds in any manner that is not prohibited by the this Indenture. Any Net Proceeds from Asset Sales that are not applied or invested as provided in the first sentence of this paragraph preceding Section 3.7(b) or Section 3.7(d) will be deemed to constitute "“Excess Proceeds." When ”
(f) On the 361st day after the Asset Sale (or, at the Company’s option, any earlier date), if the aggregate amount of Excess Proceeds then exceeds $10.0 million20,000,000, the Company will be required to make an offer Asset Sale Offer to all Holders of Notes, and all holders of other Indebtedness that is pari passu with the Notes (an "Asset Sale Offer") containing provisions similar to those set forth in this Indenture with respect to offers to purchase or redeem with the proceeds of sales of assets, to purchase the maximum principal amount of Notes and such other Indebtedness that is pari passu with the Notes that may be purchased out of the Excess Proceeds, at an . 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 thereon, if any, to the date of purchasesettlement, and will be payable in accordance with cash. If the procedures set forth Asset Sale Payment Date is on or after an interest record date and on or before the related interest payment date, any accrued and unpaid interest will be paid to the Person in whose name a Note is registered at the Indenture. To the extent that the aggregate amount close of business on such record date, and no additional interest will be payable to Holders who tender Notes tendered pursuant to the Asset Sale Offer. If any Excess Proceeds remain after consummation of an Asset Sale Offer is less than the Excess ProceedsOffer, the Company may use any remaining those Excess Proceeds for general corporate purposesany purpose not otherwise prohibited by this Indenture. If the aggregate principal amount of Notes surrendered by Holders thereof and other Indebtedness that is pari passu with the Notes tendered into such Asset Sale Offer exceeds the amount of Excess Proceeds, the Trustee shall will select the Notes to be purchased on a pro rata basisbasis on the basis of the aggregate principal amount of tendered Notes and other pari passu Indebtedness. Upon completion of such offer to purchaseeach Asset Sale Offer, the amount of Excess Proceeds shall will be reset at zero.
(g) Any Asset Sale Offer made pursuant to this Section 3.7 will remain open for a period of 20 Business Days following its commencement, except to the extent that a longer period is required by applicable law (the “Asset Sale Offer Period”). No later than five Business Days after the termination of the Asset Sale Offer Period (the “Asset Sale Payment Date”), the Company will purchase the principal amount of Indebtedness required to be purchased pursuant to this covenant (the “Asset Sale Offer Amount”) or, if less than the Asset Sale Offer Amount has been so validly tendered, all Indebtedness validly tendered in response to the Asset Sale Offer. On or before the Asset Sale Payment Date, the Company will, to the extent lawful, accept for payment, on a pro rata basis to the extent necessary, the Asset Sale Offer Amount of Indebtedness or portions thereof so validly tendered and not properly withdrawn pursuant to the Asset Sale Offer, or if less than the Asset Sale Offer Amount has been validly tendered and not properly withdrawn, all Indebtedness so validly tendered and not properly withdrawn. The Company will deliver to the Trustee an Officers’ Certificate stating that such Indebtedness or portions thereof was accepted for payment by the Company in accordance with the terms of this covenant; and, in addition, the Company will make such deliveries of all certificates, notes or other documentation as are required by the agreements governing such other Indebtedness. The Company or the Paying Agent, as the case may be, will promptly (but in any case not later than five Business Days after the termination of the Asset Sale Offer Period) mail or deliver to each tendering Holder of Notes, an amount equal to the purchase price of the Notes so validly tendered and not properly withdrawn by such Holder and accepted by the Company for purchase, and the Company will promptly issue a new Note, and the Trustee, upon delivery of an Officers’ Certificate from the Company, will authenticate and mail or deliver such new Note to such Holder, in a principal amount equal to any unpurchased portion of the Note surrendered. In addition, the Company will take any and all other actions required by the agreements governing such other Indebtedness. Any Note not so accepted will be promptly mailed or delivered by the Company to the Holder thereof. The Company will publicly announce the results of the Asset Sale Offer on or as soon as practicable after the Asset Sale Payment Date.
(h) 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 or other Indebtedness pursuant to an Asset Sale Offer. To the extent that the provisions of any securities laws or regulations conflict with the Asset Sale provisions hereunder, 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 hereunder by virtue of such conflict.
(i) The Trustee shall be under no obligation to ascertain the occurrence of an Asset Sale, or to determine or calculate Net Proceeds, Excess Proceeds, the Asset Sale Offer Period, the Asset Sale Payment Date or the Asset Sale Offer Amount, or give any notice with respect thereto. The Trustee may conclusively assume, in the absence of written notice to the contrary from the Company or a Holder or Holders of Notes, that no Asset Sale has occurred.
Appears in 1 contract
Samples: Indenture (Venoco, Inc.)
Assets Sales. The Company shall not, and shall not permit any of its Restricted Subsidiaries to, consummate an Asset Sale other than transfers of Receivables to a Receivables Subsidiary in connection with a Receivables Transaction unless (i) the Company (or the Restricted Subsidiary, as the case may be) receives consideration at the time of such Asset Sale at least equal to the fair market value (evidenced by a resolution of the Board of Directors set forth in an Officers' Certificate delivered to the Trustee) of the assets or Equity Interests issued or sold or otherwise disposed of and (ii) at least 80% of the consideration therefor received by the Company or such Restricted Subsidiary is in the form of cash; provided that the amount of (x) any liabilities (as shown on the Company's or such Restricted Subsidiary's most recent balance sheet), of the Company or any Restricted Subsidiary (other than contingent liabilities and liabilities that are by their terms subordinated to the Notes or any guarantee thereof) that are assumed by the transferee of any such assets pursuant to a customary novation agreement that releases the Company or such Restricted Subsidiary from further liability and (y) any securities, notes or other obligations received by the Company or any such Restricted Subsidiary from such transferee that are converted by the Company 41 43 or such Restricted Subsidiary into cash within 180 days (to the extent of the cash received), shall be deemed to be cash for purposes of this provision. Within 360 days after the receipt of any Net Proceeds from an Asset Sale, the Company may apply such Net Proceeds, at its option, (a) to permanently repay Senior Debt, Debt (and to correspondingly reduce commitments with respect thereto in the case of revolving borrowings), or (b) to the acquisition of a controlling interest in another business, the making of a capital expenditure or the acquisition of other long-term assets and parking facility agreementsassets, in each case, in a Permitted Business. Pending the final application of any such Net Proceeds, the Company may temporarily reduce the revolving Indebtedness under the New Credit Facility or otherwise invest such Net Proceeds in any manner that is not prohibited by the this Indenture. Any Net Proceeds from Asset Sales that are not applied or invested as provided in the first sentence of this paragraph will be deemed to constitute "Excess Proceeds." When the aggregate amount of Excess Proceeds exceeds $10.0 million15.0 million ("Excess Proceeds Offer Triggering Event"), the Company will be required to make an offer to all Holders of Notes (an "Asset Sale Offer") to purchase the maximum principal amount of Notes that may be purchased out of the Excess Proceeds, at an offer price in cash in an amount equal to 100% of the principal amount thereof plus accrued and unpaid interest and Liquidated Damages thereon, if any, to the date of purchase, in accordance with the procedures set forth in the IndentureSection 3.09 hereof. To the extent that the aggregate amount of Notes tendered pursuant to an Asset Sale Offer is less than the Excess Proceeds, the Company may use any remaining Excess Proceeds for general corporate purposes. If the aggregate principal amount of Notes surrendered by Holders thereof exceeds the amount of Excess Proceeds, the Trustee shall select the Notes to be purchased on a pro rata basis. Upon completion of such offer to purchase, the amount of Excess Proceeds shall be reset at zero.
Appears in 1 contract
Assets Sales. The Company shall not, and shall not permit any of its Restricted Subsidiaries to, consummate an Asset Sale unless (i) the Company (or the 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 of the Board of Directors set forth in an Officers' Certificate delivered to the TrusteeSenior Note Trustee with respect to any Asset Sale determined to have a fair market value greater than $25.0 million) of the assets or Equity Interests issued or sold or otherwise disposed of and (ii) at least 8075% of the consideration therefor received by the Company or such Restricted Subsidiary is in the form of cashcash or Cash Equivalents; provided PROVIDED that the amount of following amounts shall be deemed to be cash: (xw) any liabilities (as shown on the Company's or such Restricted Subsidiary's most recent balance sheet), of the Company or any Restricted Subsidiary of the Company (other than contingent liabilities and liabilities that are by their terms subordinated to the Senior 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 liability, (yx) any securities, notes or other obligations received by the Company or any such Restricted Subsidiary from such transferee that are converted by the Company or such Restricted Subsidiary into cash within 180 days after the consummation of such Asset Sale (to the extent of the cash received), shall be deemed (y) any Designated Noncash Consideration received by the Company or any of its Restricted Subsidiaries in such Asset Sale; PROVIDED that the aggregate fair market value (as determined above) of such Designated Noncash Consideration, taken together with the fair market value at the time of receipt of all other Designated Noncash Consideration received pursuant to be this clause (y) less the amount of Net Proceeds previously realized in cash for purposes from prior Designated Noncash Consideration is less than 5% of this provisionTotal Assets at the time of the receipt of such Designated Noncash Consideration (with the fair market value of each item of Designated Noncash Consideration being measured at the time received and without giving effect to subsequent changes in value) and (z) Additional Assets received in an exchange-of-assets transaction. Within 360 365 days after the receipt of any Net Proceeds from an Asset Sale, the Company may apply such Net Proceeds, at its option, (a) to permanently repay Senior Debt, Indebtedness under any Credit Facility (and to correspondingly permanently reduce the commitments with respect thereto in the case of revolving borrowings), or (b) to the acquisition of a controlling interest in another business, the making of a capital expenditure or the acquisition of other long-term assets and parking facility agreementsassets, in each case, in Permitted Businesses or (c) to an Investment in Additional Assets; PROVIDED, that the Company will have complied with clause (c) if, within 365 days of such Asset Sale, the Company shall have entered into a Permitted Businessdefinitive agreement covering such Investment which is thereafter completed within 365 days after the first anniversary of such Asset Sale. Pending the final application of any such Net Proceeds, the Company may temporarily reduce the revolving Indebtedness under the New any Credit Facility or otherwise invest such Net Proceeds in any manner that is not prohibited by the this Senior Note Indenture. Any Net Proceeds from Asset Sales that are not applied or invested as provided in the first sentence of this paragraph will shall be deemed to constitute "Excess ProceedsEXCESS PROCEEDS." When the aggregate amount of Excess Proceeds exceeds $10.0 20.0 million, the Company will shall be required to make an offer to all Holders of Senior Notes and all holders of other Indebtedness that ranks PARI PASSU with the Senior Notes containing provisions similar to those set forth in this Senior Note Indenture with respect to offers to purchase or redeem with the proceeds of sales of assets (an a "Asset Sale OfferSENIOR ASSET SALE OFFER") to purchase the maximum principal amount of Senior Notes and such other 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 thereon, if any, to the date of purchase, in accordance with the procedures set forth in the Indenturethis Senior Note Indenture and such other Indebtedness. To the extent that the aggregate amount any Excess Proceeds remain after consummation of Notes tendered pursuant to an a Senior Asset Sale Offer is less than the Excess ProceedsOffer, the Company may use any remaining Excess Proceeds for general corporate purposesany purpose not otherwise prohibited by this Senior Note Indenture. If the aggregate principal amount of Senior Notes and such other Indebtedness tendered into such Senior Asset Sale Offer surrendered by Holders thereof exceeds the amount of Excess Proceeds, the Senior Note Trustee shall select the Senior Notes and such other Indebtedness to be purchased on a pro rata basis. Upon completion of such offer to purchase, the amount of Excess Proceeds shall be reset at zero.
Appears in 1 contract
Samples: Senior Note Indenture (Ball Corp)
Assets Sales. (a) The Company shall will not, and shall will not permit any of its Restricted Subsidiaries to, consummate an Asset Sale unless unless:
(i) the Company (or 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) of the assets or Equity Interests issued or sold or otherwise disposed of and of;
(ii) such determination of fair market value shall be as determined in good faith by senior management of the Company or, if the consideration with respect to such Asset Sale exceeds $10,000,000, by the Company’s Board of Directors; and
(iii) at least 8075% 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. For purposes of this provision, each of the following will be deemed to be cash; provided that the amount of :
(xA) any liabilities (Indebtedness, as shown on the Company's ’s or such Restricted Subsidiary's ’s most recent balance sheet), of the Company or any Restricted Subsidiary (other than contingent liabilities and liabilities that are by their terms subordinated to the Notes or any guarantee thereofSubsidiary Guarantee) that are is assumed by the transferee of any such assets pursuant to a customary novation agreement that releases if and only if the Company or such Restricted Subsidiary is released from any further liability and liability; and
(yB) any securities, notes or other obligations received by the Company or any such Restricted Subsidiary from such transferee that are contemporaneously, subject to ordinary settlement periods, converted by the Company or such Restricted Subsidiary into cash within 180 days (cash, to the extent of the cash received), shall be deemed to be cash for purposes of this provision. received in that conversion.
(b) Within 360 days after the receipt of any Net Proceeds from an Asset Sale, the Company or any such Restricted Subsidiary may apply such those Net Proceeds, Proceeds at its option, option to any combination of the following:
(ai) to permanently repay Senior Debt, ;
(and ii) to correspondingly reduce commitments with respect thereto acquire all or substantially all of the properties or assets of one or more other Persons primarily engaged in the case Oil and Gas Business, and, for this purpose, a division or line of revolving borrowings), or business of a Person shall be treated as a separate Person;
(biii) to acquire a majority of the acquisition Voting Stock of a controlling interest one or more other Persons primarily engaged in another business, the making of a Oil and Gas Business;
(iv) to make one or more capital expenditure expenditures; or
(v) to acquire other assets that are used or useful in the acquisition of other long-term assets Oil and parking facility agreements, in each case, in a Permitted Gas Business. .
(c) Pending the final application of any such Net Proceeds, the Company or any such Restricted Subsidiary may temporarily reduce the revolving Indebtedness under the New Credit Facility credit borrowings or otherwise invest such the Net Proceeds in any manner that is not prohibited by the this Indenture. Any Net Proceeds from Asset Sales that are not applied or invested as provided in the first sentence of this paragraph preceding Section 3.7(b) will be deemed to constitute "“Excess Proceeds." When ”
(d) On the 361st day after the Asset Sale (or, at the Company’s option, any earlier date), if the aggregate amount of Excess Proceeds then exceeds $10.0 million20,000,000, the Company will 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 with the Notes (an "Asset Sale Offer") containing provisions similar to those set forth in this Indenture with respect to offers to purchase or redeem with the proceeds of sales of assets, to purchase the maximum principal amount of Notes and such other pari passu Indebtedness that may be purchased out of the Excess Proceeds, at an . 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 thereonAdditional Interest, if any, to the date of purchasesettlement, and will be payable in accordance with cash. If the procedures set forth Asset Sale Payment Date is on or after an interest record date and on or before the related interest payment date, any accrued and unpaid interest (including Additional Interest, if any) will be paid to the Person in whose name a Note is registered at the Indenture. To the extent that the aggregate amount close of business on such record date, and no additional interest will be payable to Holders who tender Notes tendered pursuant to the Asset Sale Offer. If any Excess Proceeds remain after consummation of an Asset Sale Offer is less than the Excess ProceedsOffer, the Company may use any remaining those Excess Proceeds for general corporate purposesany purpose not otherwise prohibited by this Indenture. If the aggregate principal amount of Notes surrendered by Holders thereof and other pari passu Indebtedness tendered into such Asset Sale Offer exceeds the amount of Excess Proceeds, the Trustee shall will select the Notes to be purchased on a pro rata basisbasis on the basis of the aggregate principal amount of tendered Notes and other pari passu Indebtedness. Upon completion of such offer to purchaseeach Asset Sale Offer, the amount of Excess Proceeds shall will be reset at zero.
(e) The Asset Sale Offer will remain open for a period of 20 Business Days following its commencement, except to the extent that a longer period is required by applicable law (the “Asset Sale Offer Period”). No later than five Business Days after the termination of the Asset Sale Offer Period (the “Asset Sale Payment Date”), the Company will purchase the principal amount of Notes and other pari passu Indebtedness required to be purchased pursuant to this covenant (the “Asset Sale Offer Amount”) or, if less than the Asset Sale Offer Amount has been so validly tendered, all Notes and other pari passu Indebtedness validly tendered in response to the Asset Sale Offer. On or before the Asset Sale Payment Date, the Company will, to the extent lawful, accept for payment, on a pro rata basis to the extent necessary, the Asset Sale Offer Amount of Notes and other pari passu Indebtedness or portions thereof so validly tendered and not properly withdrawn pursuant to the Asset Sale Offer, or if less than the Asset Sale Offer Amount has been validly tendered and not properly withdrawn, all Notes and other pari passu Indebtedness so validly tendered and not properly withdrawn. The Company will deliver to the Trustee an Officers’ Certificate stating that such Notes or portions thereof were accepted for payment by the Company in accordance with the terms of this covenant; and, in addition, the Company will make such deliveries of all certificates and notes as are required by the agreements governing the other pari passu Indebtedness. The Company or the Paying Agent, as the case may be, will promptly (but in any case not later than five Business Days after the termination of the Asset Sale Offer Period) mail or deliver to each tendering Holder of Notes, an amount equal to the purchase price of the Notes so validly tendered and not properly withdrawn by such Holder and accepted by the Company for purchase, and the Company will promptly issue a new Note, and the Trustee, upon delivery of an Officers’ Certificate from the Company, will authenticate and mail or deliver such new Note to such Holder, in a principal amount equal to any unpurchased portion of the Note surrendered. In addition, the Company will take any and all other actions required by the agreements governing the other pari passu Indebtedness. Any Note not so accepted will be promptly mailed or delivered by the Company to the Holder thereof. The Company will publicly announce the results of the Asset Sale Offer on or as soon as practicable after the Asset Sale Payment Date.
(f) The Company will comply with the requirements of Rule 14e-1 under the Exchange Act and any other securities laws and regulations thereunder to the extent those laws and regulations are applicable in connection with each repurchase of Notes pursuant to an Asset Sale Offer. To the extent that the provisions of any securities laws or regulations conflict with the Asset Sale provisions hereunder, 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 hereunder by virtue of such conflict.
(g) The Trustee shall be under no obligation to ascertain the occurrence of an Asset Sale, or to determine or calculate Excess Proceeds, the Asset Sale Offer Period, the Asset Sale Payment Date or the Asset Sale Offer Amount, or give any notice with respect thereto. The Trustee may conclusively assume, in the absence of written notice to the contrary from the Company or a Holder or Holders of Notes, that no Asset Sale has occurred.
Appears in 1 contract
Samples: Indenture (Venoco, Inc.)
Assets Sales. The Company shall not, and shall not permit any of its Restricted Subsidiaries to, consummate an Asset Sale unless (i) the Company (or the 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 8075% of the consideration therefor received by the Company or such Restricted Subsidiary is in the form of cash; provided that the amount of (x) any liabilities (as shown on the Company's or such Restricted Subsidiary's most recent balance sheet), of the Company or any Restricted Subsidiary (other than contingent liabilities and liabilities that are by their terms subordinated to the Notes or any guarantee thereof) that are assumed by the transferee of any such assets pursuant and as to a customary novation agreement that releases which the Company or such Restricted Subsidiary is released from further liability and (y) any securities, notes or other obligations received by the Company or any such Restricted Subsidiary from such transferee that are contemporaneously (subject to ordinary settlement periods) converted by the Company or such Restricted Subsidiary into cash within 180 days (to the extent of the cash received), shall be deemed to be cash for purposes of this provision. Within 360 days after the receipt of any Net Proceeds from an Asset Sale, the Company may apply such Net Proceeds, at its option, (a) to permanently repay Senior Debt, (and to correspondingly reduce commitments with respect thereto in the case of revolving borrowings), or (b) to the acquisition of a controlling interest in majority of the assets of, or a majority of the Voting Stock of, another businessPermitted Business, the making of a capital expenditure or the acquisition of other long-term assets and parking facility agreementsor properties (including, in each casewithout limitation, equipment) that are used or useful in a Permitted Business. Pending the final application of any such Net Proceeds, the Company may temporarily reduce the revolving Indebtedness under the New Credit Facility credit borrowings or otherwise invest such Net Proceeds in any manner that is not prohibited by the this Indenture. Any Net Proceeds from Asset Sales that are not applied or invested as provided in the first sentence of this paragraph will be deemed to constitute "Excess Proceeds." When the aggregate amount of Excess Proceeds exceeds $10.0 7.0 million, the Company will be required to make an offer to all Holders of Notes (an "Asset Sale Offer") and all holders of pari passu Indebtedness containing provisions similar to those set forth in Section 3.09 hereof to purchase the maximum principal amount of Notes and such other Indebtedness that may be purchased out of the Excess Proceeds, at an offer price in cash in an amount equal to 100% of the principal amount thereof plus accrued and unpaid interest and Liquidated Damages thereon, if any, to the date of purchase, in accordance with the procedures set forth in the IndentureSection 3.09 hereof and such other Indebtedness. To the extent that the aggregate amount any Excess Proceeds remain after consummation of Notes tendered pursuant to an Asset Sale Offer is less than the Excess ProceedsOffer, the Company may use any remaining such Excess Proceeds for general corporate purposesany purpose not otherwise prohibited by this Indenture. If the aggregate principal amount of Notes and such other 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 Indebtedness to be purchased on a pro rata basis. Upon completion of such offer to purchase, the amount of Excess Proceeds shall be reset at zero.
Appears in 1 contract
Samples: Indenture (MST Enterprises Inc)
Assets Sales. The Company shall not, and shall not permit any of its Restricted Subsidiaries to, consummate an Asset Sale unless (i) the Company (or the 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 of the Board of Directors set forth in an Officers' Certificate delivered to the TrusteeSenior Note Trustee with respect to any Asset Sale determined to have a fair market value greater than $25.0 million) of the assets or Equity Interests issued or sold or otherwise disposed of and (ii) at least 8075% of the consideration therefor received by the Company or such Restricted Subsidiary is in the form of cashcash or Cash Equivalents; provided that the amount of following amounts shall be deemed to be cash: (xw) any liabilities (as shown on the Company's or such Restricted Subsidiary's most recent balance sheet), of the Company or any Restricted Subsidiary of the Company (other than contingent liabilities and liabilities that are by their terms subordinated to the Senior 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 liability, (yx) any securities, notes or other obligations received by the Company or any such Restricted Subsidiary from such transferee that are converted by the Company or such Restricted Subsidiary into cash within 180 days after the consummation of such Asset Sale (to the extent of the cash received), shall be deemed (y) any Designated Noncash Consideration received by the Company or any of its Restricted Subsidiaries in such Asset Sale; provided that the aggregate fair market value (as determined above) of such Designated Noncash Consideration, taken together with the fair market value at the time of receipt of all other Designated Noncash Consideration received pursuant to be this clause (y) less the amount of Net Proceeds previously realized in cash for purposes from prior Designated Noncash Consideration is less than 5% of this provisionTotal Assets at the time of the receipt of such Designated Noncash Consideration (with the fair market value of each item of Designated Noncash Consideration being measured at the time received and without giving effect to subsequent changes in value) and (z) Additional Assets received in an exchange-of-assets transaction. Within 360 365 days after the receipt of any Net Proceeds from an Asset Sale, the Company may apply such Net Proceeds, at its option, (a) to permanently repay Senior Debt, Indebtedness under any Credit Facility (and to correspondingly permanently reduce the commitments with respect thereto in the case of revolving borrowings), or (b) to the acquisition of a controlling interest in another business, the making of a capital expenditure or the acquisition of other long-term assets and parking facility agreementsassets, in each case, in Permitted Businesses or (c) to an Investment in Additional Assets; provided, that the Company will have complied with clause (c) if, within 365 days of such Asset Sale, the Company shall have entered into a Permitted Businessdefinitive agreement covering such Investment which is thereafter completed within 365 days after the first anniversary of such Asset Sale. Pending the final application of any such Net Proceeds, the Company may temporarily reduce the revolving Indebtedness under the New any Credit Facility or otherwise invest such Net Proceeds in any manner that is not prohibited by the this Senior Note Indenture. Any Net Proceeds from Asset Sales that are not applied or invested as provided in the first sentence of this paragraph will shall be deemed to constitute "Excess Proceeds." When the aggregate amount of Excess Proceeds exceeds $10.0 20.0 million, the Company will shall be required to make an offer to all Holders of Senior Notes and all holders of other Indebtedness that ranks pari passu with the Senior Notes containing provisions similar to those set forth in this Senior Note Indenture with respect to offers to purchase or redeem with the proceeds of sales of assets (an a "Senior Asset Sale Offer") to purchase the maximum principal amount of Senior Notes and such other 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 thereon, if any, to the date of purchase, in accordance with the procedures set forth in the Indenturethis Senior Note Indenture and such other Indebtedness. To the extent that the aggregate amount any Excess Proceeds remain after consummation of Notes tendered pursuant to an a Senior Asset Sale Offer is less than the Excess ProceedsOffer, the Company may use any remaining Excess Proceeds for general corporate purposesany purpose not otherwise prohibited by this Senior Note Indenture. If the aggregate principal amount of Senior Notes and such other Indebtedness tendered into such Senior Asset Sale Offer surrendered by Holders thereof exceeds the amount of Excess Proceeds, the Senior Note Trustee shall select the Senior Notes and such other Indebtedness to be purchased on a pro rata basis. Upon completion of such offer to purchase, the amount of Excess Proceeds shall be reset at zero.
Appears in 1 contract
Samples: Senior Note Indenture (Ball Corp)
Assets Sales. The Company shall not, and shall not permit any of its Restricted Subsidiaries to, consummate engage in an Asset Sale unless (i) the Company (or the 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 Resolution delivered to the Trustee) of the assets or Equity Interests issued or sold or otherwise disposed of of; and (ii) at least 8075% of the consideration therefor received by the Company or such Restricted Subsidiary is in the form of cashcash or Cash Equivalents; provided PROVIDED that the amount of (x) 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 any Restricted Subsidiary (other than contingent liabilities and liabilities that are by their terms subordinated to the Notes or any guarantee thereof) that are assumed by the transferee of any such assets pursuant to a customary novation agreement that releases the Company or such Restricted Subsidiary from further liability and (y) any securities, notes or other obligations received by the Company or any such Restricted Subsidiary from such transferee that are immediately converted by the Company or such Restricted Subsidiary into cash within 180 days (to the extent of the cash received), shall be deemed to be cash for purposes of this provisionprovision and PROVIDED further that (1) the 75% limitation referred to above shall not apply to any Asset Sale in which the cash or Cash Equivalents portion of the consideration received therefor, determined in accordance with the foregoing proviso, is equal to or greater than what the net after-tax proceeds would have been had such Asset Sale complied with the aforementioned 75% limitation and (2) the provisions of clauses (i) and (ii) above shall not apply to any sale or other disposition of assets required pursuant to a consent order or other agreement entered into by the Company with the Federal Trade Commission or the Department of Justice in connection with the Delchamps Acquisition. Within 360 435 days after the receipt of any Net Proceeds from an Asset Sale, the Company or its Restricted Subsidiary, as the case may be, may apply such Net Proceeds, at its option, Proceeds by (ai) to permanently repay reducing Indebtedness under the Senior Credit Facility (and correspondingly reducing commitments with respect thereto) or other Senior Debt, (ii) investing (or entering into a binding commitment to invest) in any one or more business, capital expenditure or other tangible asset, in each case in the same line of business as the Company or its Restricted Subsidiaries was engaged in on the date hereof or a line of business reasonably related thereto, (iii) investing (or entering into a binding commitment to invest) in properties or assets that replace the properties and to correspondingly reduce commitments with respect thereto assets that are the subject of such Asset Sale and (iv) in the case of revolving borrowings)a sale of a store or stores, deeming such Net Proceeds to have been applied to the extent of any capital expenditures made to acquire or construct another store within 435 days preceding the date of the Asset Sale; PROVIDED that if such Net Proceeds are applied by entering into a binding commitment under clause (ii) or (biii) to above, then the acquisition investment contemplated by such commitment shall be made no later than 45 days following the end of a controlling interest in another business, the making of a capital expenditure or the acquisition of other long-term assets and parking facility agreements, in each case, in a Permitted Businesssuch 435 day period. Pending the final application of any such Net Proceeds, the Company or its Restricted Subsidiary, as the case may be, may temporarily reduce the revolving Indebtedness under the New Senior Credit Facility or otherwise invest such Net Proceeds in any manner that is not prohibited by the this Indenture. Any Net Proceeds from Asset Sales that are not applied or invested as provided in the first sentence of this paragraph will be deemed to constitute "Excess Proceeds." When the aggregate amount of Excess Proceeds exceeds $10.0 15.0 million, the Company will shall be required to make an offer to all Holders of Notes (an "Asset Sale Offer") to purchase the maximum principal amount of Notes that may be purchased out of the Excess Proceeds, at an offer a price in cash in an amount equal to 100% of the principal amount thereof plus accrued and unpaid interest and Liquidated Damages thereonDamages, if any, thereon to the date of purchase, in accordance with the procedures set forth in the this Indenture. To the extent that the aggregate amount of Notes tendered pursuant to an Asset Sale Offer is less than the aggregate amount of Excess Proceeds, the Company or its Restricted Subsidiary, as the case may be, may use any remaining Excess Proceeds for general corporate purposes. If the aggregate principal amount of Notes surrendered by Holders thereof exceeds the aggregate amount of Excess Proceeds, the Trustee shall select the Notes to be purchased on a pro rata basisin accordance with the terms of this Indenture. Upon completion of such offer to purchaseeach Asset Sale Offer, the amount of Excess Proceeds shall be reset at zero.
Appears in 1 contract
Assets Sales. The Company NEHC shall not, and shall not permit any of its Restricted Subsidiaries to, consummate an Asset Sale other than transfers of Receivables to a Receivables Subsidiary in connection with a Receivables Transaction unless (i) the Company NEHC (or the Restricted Subsidiary, as the case may be) receives consideration at the time of such Asset Sale at least equal to the fair market value (evidenced by a resolution of the Board of Directors set forth in an Officers' Certificate delivered to the Trustee) of the assets or Equity Interests issued or sold or otherwise disposed of and (ii) at least 80% of the consideration therefor received by the Company NEHC or such Restricted Subsidiary is in the form of cash; provided that the amount of (x) any liabilities (as shown on the CompanyNEHC's or such Restricted Subsidiary's most recent balance sheet), of the Company NEHC or any Restricted Subsidiary (other than contingent liabilities and liabilities that are by their terms subordinated to the Notes or any guarantee thereof) that are assumed by the transferee of any such assets pursuant to a customary novation agreement that releases the Company NEHC or such Restricted Subsidiary from further liability and (y) any securities, notes or other obligations received by the Company NEHC or any such Restricted Subsidiary from such transferee that are converted by the Company NEHC or such Restricted Subsidiary into cash within 180 days (to the extent of the cash received), shall be deemed to be cash for purposes of this provision. Within 360 days after the receipt by NEHC of any Net Proceeds from an Asset Sale, the Company NEHC may apply such Net Proceeds, at its option, (a) to permanently repay Senior Debt, (and to correspondingly reduce commitments with respect thereto in the case of revolving borrowings), or (b) to the acquisition of a controlling interest in another business, the making of a capital expenditure or the acquisition of other long-term assets and parking facility agreementsassets, in each case, in a Permitted Business. Pending the final application of any such Net Proceeds, the Company NEHC may temporarily reduce the revolving Indebtedness under the New Credit Facility or otherwise invest such Net Proceeds in any manner that is not prohibited by the this Indenture. Any Net Proceeds from Asset Sales received by NEHC that are not applied or invested as provided in the first sentence of this paragraph will be deemed to constitute "Excess Proceeds." When the aggregate amount of Excess Proceeds exceeds $10.0 20.0 million, the Company NEHC will be required to make an offer to all Holders of Notes (an "Asset Sale Offer") to purchase the maximum principal amount of Notes that may be purchased out of the Excess Proceeds, at an offer price in cash in an amount equal to 100% of the Accreted Value thereof on the date of purchase (if such date of purchase is prior to July 15, 2002) or 100% of the principal amount thereof plus accrued and unpaid interest and Liquidated Damages thereon, if any, to the date of purchasepurchase (if such date of purchase is on or after July 15, 2002), in each case in accordance with the procedures set forth in the IndentureSection 3.09 hereof. To the extent that the aggregate amount of Notes tendered pursuant to an Asset Sale Offer is less than the Excess Proceeds, the Company NEHC may use any remaining Excess Proceeds for general corporate purposes. If the aggregate principal amount of Notes surrendered by Holders thereof exceeds the amount of Excess Proceeds, the Trustee shall select the Notes to be purchased on a pro rata basis. Upon completion of such offer to purchase, the amount of Excess Proceeds shall be reset at zero.
Appears in 1 contract
Samples: Indenture (Nebco Evans Holding Co)
Assets Sales. The Company shall not, and shall not permit any of its Restricted Subsidiaries to, consummate an Asset Sale unless (i) the Company (or the 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 8075% of the consideration therefor received by the Company or such Restricted Subsidiary is in the form of cash; provided that the amount of (x) any liabilities (as shown on the Company's or such Restricted Subsidiary's most recent balance sheet), of the Company or any Restricted Subsidiary (other than contingent liabilities and liabilities that are by their terms subordinated to the Notes or any guarantee thereof) that are assumed by the transferee of any such assets pursuant and as to a customary novation agreement that releases which the Company or such Restricted Subsidiary is released from further liability and (y) any securities, notes or other obligations received by the Company or any such Restricted Subsidiary from such transferee that are contemporaneously (subject to ordinary settlement periods) converted by the Company or such Restricted Subsidiary into cash within 180 days (to the extent of the cash received), shall be deemed to be cash for purposes of this provision. Within 360 days after the receipt of any Net Proceeds from an Asset Sale, the Company may apply such Net Proceeds, at its option, (a) to permanently repay Senior Debt, (and to correspondingly reduce commitments with respect thereto in the case of revolving borrowings), or (b) to the acquisition of a controlling interest in majority of the assets of, or a majority of the Voting Stock of, another businessPermitted Business, the making of a capital expenditure or the acquisition of other long-term assets and parking facility agreementsor properties (including, in each casewithout limitation, equipment) that are used or useful in a Permitted Business. Pending the final application of any such Net Proceeds, the Company may temporarily reduce the revolving Indebtedness under the New Credit Facility credit borrowings or otherwise invest such Net Proceeds in any manner that is not prohibited by the this Indenture. Any Net Proceeds from Asset Sales that are not applied or invested as provided in the first sentence of this paragraph will be deemed to constitute "Excess Proceeds." When the aggregate amount of Excess Proceeds exceeds $10.0 7.0 million, the Company will be required to make an offer to all Holders of Notes (an "Asset Sale Offer") and all holders of pari passu Indebtedness containing provisions similar to those set forth in Section 3.09 hereof to purchase the maximum principal amount of Notes (including any Additional Notes) and such other 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 thereon, if any, to the date of purchase, in accordance with the procedures set forth in the IndentureSection 3.09 hereof and such other Indebtedness. To the extent that the aggregate amount any Excess Proceeds remain after consummation of Notes tendered pursuant to an Asset Sale Offer is less than the Excess ProceedsOffer, the Company may use any remaining such Excess Proceeds for general corporate purposesany purpose not otherwise prohibited by this Indenture. If the aggregate principal amount of Notes (including any Additional Notes) and such other 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 Indebtedness to be purchased on a pro rata basis. Upon completion of such offer to purchase, the amount of Excess Proceeds shall be reset at zero.
Appears in 1 contract
Assets Sales. The Company shall not, and shall not permit any of its Restricted Subsidiaries to, consummate an Asset Sale unless (i) the Company (or the 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 of the Board of Directors set forth in an Officers' Certificate delivered to the TrusteeSenior Subordinated Note Trustee with respect to any Asset Sale determined to have a fair market value greater than $25.0 million) of the assets or Equity Interests issued or sold or otherwise disposed of and (ii) at least 8075% of the consideration therefor received by the Company or such Restricted Subsidiary is in the form of cashcash or Cash Equivalents; provided that the amount of following amounts shall be deemed to be cash: (xw) any liabilities (as shown on the Company's or such Restricted Subsidiary's most recent balance sheet), of the Company or any Restricted Subsidiary of the Company (other than contingent liabilities and liabilities that are by their terms subordinated to the Senior Subordinated 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 liability, (yx) any securities, notes or other obligations received by the Company or any such Restricted Subsidiary from such transferee that are converted by the Company or such Restricted Subsidiary into cash within 180 days after the consummation of such Asset Sale (to the extent of the cash received), shall be deemed (y) any Designated Noncash Consideration received by the Company or any of its Restricted Subsidiaries in such Asset Sale; provided that the aggregate fair market value (as determined above) of such Designated Noncash Consideration, taken together with the fair market value at the time of receipt of all other Designated Noncash Consideration received pursuant to be this clause (y) less the amount of Net Proceeds previously realized in cash for purposes from prior Designated Noncash Consideration is less than 5% of this provisionTotal Assets at the time of the receipt of such Designated Noncash Consideration (with the fair market value of each item of Designated Noncash Consideration being measured at the time received and without giving effect to subsequent changes in value) and (z) Additional Assets received in an exchange-of-assets transaction. Within 360 365 days after the receipt of any Net Proceeds from an Asset Sale, the Company may apply such Net Proceeds, at its option, (a) to permanently repay Senior DebtDebt of the Company or any Restricted Subsidiary, including, without limitation, Indebtedness under the Senior Notes and any Credit Facility (and to correspondingly permanently reduce the commitments with respect thereto in the case of revolving borrowings), or (b) to the acquisition of a controlling interest in another business, the making of a capital expenditure or the acquisition of other long-term assets and parking facility agreementsassets, in each case, in Permitted Businesses or (c) to an Investment in Additional Assets; provided, that the Company will have complied with clause (c) if, within 365 days of such Asset Sale, the Company shall have entered into a Permitted Businessdefinitive agreement covering such Investment which is thereafter completed within 365 days after the first anniversary of such Asset Sale. Pending the final application of any such Net Proceeds, the Company may temporarily reduce the revolving Indebtedness under the New any Credit Facility or otherwise invest such Net Proceeds in any manner that is not prohibited by the IndentureIndentures. Any Net Proceeds from Asset Sales that are not applied or invested as provided in the first sentence of this paragraph will shall be deemed to constitute "Excess ProceedsEXCESS PROCEEDS." When the aggregate amount of Excess Proceeds exceeds $10.0 20.0 million, the Company will shall be required to make an offer to all Holders of Senior Subordinated Notes and all holders of other Indebtedness that is not Senior Debt that ranks pari passu with the Senior Subordinated Notes containing provisions similar to those set forth in the Senior Subordinated Note Indenture with respect to offers to purchase or redeem with the proceeds of sales of assets (an a "Asset Sale OfferSENIOR SUBORDINATED ASSET SALE OFFER") to purchase the maximum principal amount of Senior Subordinated Notes and such other Indebtedness that may be purchased out of the Excess Proceeds, at an offer price in cash in an amount equal to 100% of the principal amount thereof plus accrued and unpaid interest and Liquidated Damages thereon, if any, to the date of purchase, in accordance with the procedures set forth in the IndentureSenior Subordinated Note Indenture and such other Indebtedness. To the extent that the aggregate amount any Excess Proceeds remain after consummation of Notes tendered pursuant to an a Senior Subordinated Asset Sale Offer is less than the Excess ProceedsOffer, the Company may use any remaining Excess Proceeds for general corporate purposesany purpose not otherwise prohibited by the Senior Subordinated Note Indenture. If the aggregate principal amount of Senior Subordinated Notes and such other Indebtedness tendered into such Senior Subordinated Asset Sale Offer surrendered by Holders thereof exceeds the amount of Excess Proceeds, the Senior Subordinated Note Trustee shall select the Senior Subordinated Notes and such other Indebtedness to be purchased on a pro rata basis. Upon completion of such offer to purchase, the amount of Excess Proceeds shall be reset at zero.
Appears in 1 contract
Samples: Amended and Restated Senior Subordinated Note Indenture (Ball Corp)
Assets Sales. (a) The Company shall will not, and shall will not permit any of its Restricted Subsidiaries to, consummate an Asset Sale unless unless:
(i) the Company (or 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) of the assets or Equity Interests issued or sold or otherwise disposed of and of;
(ii) such determination of fair market value shall be as determined in good faith by senior management of the Company or, if the consideration with respect to such Asset Sale exceeds $10,000,000, by the Company’s Board of Directors; and
(iii) at least 8075% of the aggregate consideration therefor received by the Company or such Restricted Subsidiary in the Asset Sale and all other Asset Sales since the date of this Indenture is in the form of cash or Cash Equivalents. For purposes of this provision, each of the following will be deemed to be cash; provided that the amount of :
(xA) any liabilities (Indebtedness, as shown on the Company's ’s or such Restricted Subsidiary's ’s most recent balance sheet), of the Company or any Restricted Subsidiary (other than contingent liabilities and liabilities that are by their terms subordinated to the Notes or any guarantee thereofSubsidiary Guarantee) that are is assumed by the transferee of any such assets pursuant to a customary novation agreement that releases if and only if the Company or such Restricted Subsidiary is released from any further liability and liability; and
(yB) any securities, notes or other obligations received by the Company or any such Restricted Subsidiary from such transferee that are contemporaneously, subject to ordinary settlement periods, converted by the Company or such Restricted Subsidiary into cash within 180 days (cash, to the extent of the cash received), shall be deemed to be cash for purposes of this provision. received in that conversion.
(b) Within 360 days after the receipt of any Net Proceeds from an Asset Sale, the Company or any such Restricted Subsidiary may apply such those Net Proceeds, Proceeds at its option, option to any combination of the following:
(ai) to permanently repay Senior Debt, ;
(and ii) to correspondingly reduce commitments with respect thereto acquire all or substantially all of the properties or assets of one or more other Persons primarily engaged in the case Oil and Gas Business, and, for this purpose, a division or line of revolving borrowings), or business of a Person shall be treated as a separate Person;
(biii) to acquire a majority of the acquisition Voting Stock of a controlling interest one or more other Persons primarily engaged in another business, the making of a Oil and Gas Business;
(iv) to make one or more capital expenditure expenditures; or
(v) to acquire other assets that are used or useful in the acquisition of other long-term assets Oil and parking facility agreements, in each case, in a Permitted Gas Business. .
(c) Pending the final application of any such Net Proceeds, the Company or any such Restricted Subsidiary may temporarily reduce the revolving Indebtedness under the New Credit Facility credit borrowings or otherwise invest such the Net Proceeds in any manner that is not prohibited by the this Indenture. Any Net Proceeds from Asset Sales that are not applied or invested as provided in the first sentence of this paragraph preceding Section 3.7(b) will be deemed to constitute "“Excess Proceeds." When ”
(d) On the 361st day after the Asset Sale (or, at the Company’s option, any earlier date), if the aggregate amount of Excess Proceeds then exceeds $10.0 million20,000,000, the Company will 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 with the Notes (an "Asset Sale Offer") containing provisions similar to those set forth in this Indenture with respect to offers to purchase or redeem with the proceeds of sales of assets, to purchase the maximum principal amount of Notes and such other pari passu Indebtedness that may be purchased out of the Excess Proceeds, at an . 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 thereonAdditional Interest, if any, to the date of purchasesettlement, and will be payable in accordance with cash. If the procedures set forth Asset Sale Payment Date is on or after an interest record date and on or before the related interest payment date, any accrued and unpaid interest (including Additional Interest, if any) will be paid to the Person in whose name a Note is registered at the Indenture. To the extent that the aggregate amount close of business on such record date, and no additional interest will be payable to Holders who tender Notes tendered pursuant to the Asset Sale Offer. If any Excess Proceeds remain after consummation of an Asset Sale Offer is less than the Excess ProceedsOffer, the Company may use any remaining those Excess Proceeds for general corporate purposes. If the aggregate principal amount of Notes surrendered any purpose not otherwise prohibited by Holders thereof exceeds the amount of Excess Proceeds, the Trustee shall select the Notes to be purchased on a pro rata basis. Upon completion of such offer to purchase, the amount of Excess Proceeds shall be reset at zero.this
Appears in 1 contract
Samples: Indenture (Venoco, Inc.)
Assets Sales. (a) The Company shall will not, and shall will not permit any of its Restricted Subsidiaries to, consummate an Asset Sale unless unless:
(i) the Company (or 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) of the assets or Equity Interests issued or sold or otherwise disposed of and of;
(ii) such determination of fair market value shall be as determined in good faith by senior management of the Company or, if the consideration with respect to such Asset Sale exceeds $10,000,000, by the Company's Board of Directors; and
(iii) at least 8075% of the aggregate consideration therefor received by the Company or such Restricted Subsidiary in the Asset Sale and all other Asset Sales since the date of this Indenture is in the form of cash or Cash Equivalents. For purposes of this provision, each of the following will be deemed to be cash; provided that the amount of :
(xA) any liabilities (Indebtedness, as shown on the Company's or such Restricted Subsidiary's most recent balance sheet), of the Company or any Restricted Subsidiary (other than contingent liabilities and liabilities that are by their terms subordinated to the Notes or any guarantee thereofSubsidiary Guarantee) that are is assumed by the transferee of any such assets pursuant to a customary novation agreement that releases if and only if the Company or such Restricted Subsidiary is released from any further liability and liability; and
(yB) any securities, notes or other obligations received by the Company or any such Restricted Subsidiary from such transferee that are contemporaneously, subject to ordinary settlement periods, converted by the Company or such Restricted Subsidiary into cash within 180 days (cash, to the extent of the cash received), shall be deemed to be cash for purposes of this provision. received in that conversion.
(b) Within 360 days after the receipt of any Net Proceeds from an Asset Sale, the Company or any such Restricted Subsidiary may apply such those Net Proceeds, Proceeds at its option, option to any combination of the following:
(ai) to permanently repay Senior Debt, ;
(and ii) to correspondingly reduce commitments with respect thereto acquire all or substantially all of the properties or assets of one or more other Persons primarily engaged in the case Oil and Gas Business, and, for this purpose, a division or line of revolving borrowings), or business of a Person shall be treated as a separate Person;
(biii) to acquire a majority of the acquisition Voting Stock of a controlling interest one or more other Persons primarily engaged in another business, the making of a Oil and Gas Business;
(iv) to make one or more capital expenditure expenditures; or
(v) to acquire other assets that are used or useful in the acquisition of other long-term assets Oil and parking facility agreements, in each case, in a Permitted Gas Business. .
(c) Pending the final application of any such Net Proceeds, the Company or any such Restricted Subsidiary may temporarily reduce the revolving Indebtedness under the New Credit Facility credit borrowings or otherwise invest such the Net Proceeds in any manner that is not prohibited by the this Indenture. Any Net Proceeds from Asset Sales that are not applied or invested as provided in the first sentence of this paragraph preceding Section 3.7(b) will be deemed to constitute "Excess Proceeds." When "
(d) On the 361st day after the Asset Sale (or, at the Company's option, any earlier date), if the aggregate amount of Excess Proceeds then exceeds $10.0 million20,000,000, the Company will be required to make an offer to all Holders of Notes (an "Asset Sale Offer") to all Holders of Notes, and all holders of other Indebtedness that is pari passu with the Notes containing provisions similar to those set forth in this Indenture with respect to offers to purchase or redeem with the proceeds of sales of assets, to purchase the maximum principal amount of Notes and such other pari passu Indebtedness that may be purchased out of the Excess Proceeds, at an . 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 thereonAdditional Interest, if any, to the date of purchasesettlement, and will be payable in accordance with cash. If the procedures set forth Asset Sale Payment Date is on or after an interest record date and on or before the related interest payment date, any accrued and unpaid interest (including Additional Interest, if any) will be paid to the Person in whose name a Note is registered at the Indenture. To the extent that the aggregate amount close of business on such record date, and no additional interest will be payable to Holders who tender Notes tendered pursuant to the Asset Sale Offer. If any Excess Proceeds remain after consummation of an Asset Sale Offer is less than the Excess ProceedsOffer, the Company may use any remaining those Excess Proceeds for general corporate purposesany purpose not otherwise prohibited by this Indenture. If the aggregate principal amount of Notes surrendered by Holders thereof and other pari passu Indebtedness tendered into such Asset Sale Offer exceeds the amount of Excess Proceeds, the Trustee shall will select the Notes to be purchased on a pro rata basisbasis on the basis of the aggregate principal amount of tendered Notes and other pari passu Indebtedness. Upon completion of such offer to purchaseeach Asset Sale Offer, the amount of Excess Proceeds shall will be reset at zero.
(e) The Asset Sale Offer will remain open for a period of 20 Business Days following its commencement, except to the extent that a longer period is required by applicable law (the "Asset Sale Offer Period"). No later than five Business Days after the termination of the Asset Sale Offer Period (the "Asset Sale Payment Date"), the Company will purchase the principal amount of Notes and other pari passu Indebtedness required to be purchased pursuant to this covenant (the "Asset Sale Offer Amount") or, if less than the Asset Sale Offer Amount has been so validly tendered, all Notes and other pari passu Indebtedness validly tendered in response to the Asset Sale Offer. On or before the Asset Sale Payment Date, the Company will, to the extent lawful, accept for payment, on a pro rata basis to the extent necessary, the Asset Sale Offer Amount of Notes and other pari passu Indebtedness or portions thereof so validly tendered and not properly withdrawn pursuant to the Asset Sale Offer, or if less than the Asset Sale Offer Amount has been validly tendered and not properly withdrawn, all Notes and other pari passu Indebtedness so validly tendered and not properly withdrawn. The Company will deliver to the Trustee an Officers' Certificate stating that such Notes or portions thereof were accepted for payment by the Company in accordance with the terms of this covenant; and, in addition, the Company will make such deliveries of all certificates and notes as are required by the agreements governing the other pari passu Indebtedness. The Company or the Paying Agent, as the case may be, will promptly (but in any case not later than five Business Days after the termination of the Asset Sale Offer Period) mail or deliver to each tendering Holder of Notes, an amount equal to the purchase price of the Notes so validly tendered and not properly withdrawn by such Holder and accepted by the Company for purchase, and the Company will promptly issue a new Note, and the Trustee, upon delivery of an Officers' Certificate from the Company, will authenticate and mail or deliver such new Note to such Holder, in a principal amount equal to any unpurchased portion of the Note surrendered. In addition, the Company will take any and all other actions required by the agreements governing the other pari passu Indebtedness. Any Note not so accepted will be promptly mailed or delivered by the Company to the Holder thereof. The Company will publicly announce the results of the Asset Sale Offer on or as soon as practicable after the Asset Sale Payment Date.
(f) The Company will comply with the requirements of Rule 14e-1 under the Exchange Act and any other securities laws and regulations thereunder to the extent those laws and regulations are applicable in connection with each repurchase of Notes pursuant to an Asset Sale Offer. To the extent that the provisions of any securities laws or regulations conflict with the Asset Sale provisions hereunder, 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 hereunder by virtue of such conflict.
(g) The Trustee shall be under no obligation to ascertain the occurrence of an Asset Sale, or to determine or calculate Excess Proceeds, the Asset Sale Offer Period, the Asset Sale Payment Date or the Asset Sale Offer Amount, or give any notice with respect thereto. The Trustee may conclusively assume, in the absence of written notice to the contrary from the Company or a Holder or Holders of Notes, that no Asset Sale has occurred.
Appears in 1 contract
Samples: Indenture (TexCal Energy (LP) LLC)
Assets Sales. (a) The Company shall will not, and shall will not permit any of its Restricted Subsidiaries to, consummate an Asset Sale unless unless:
(i) the Company (or 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;
(ii) at least 8075% of the aggregate consideration therefor received by the Company or such Restricted Subsidiary in the Asset Sale and all other Asset Sales since the date of this Indenture is in the form of cash or Cash Equivalents. For purposes of this provision, each of the following will be deemed to be cash; provided that the amount of :
(xA) any liabilities (Indebtedness, as shown on the Company's ’s or such Restricted Subsidiary's ’s most recent balance sheet), of the Company or any Restricted Subsidiary (other than contingent liabilities and liabilities that are by their terms subordinated to the Notes or any guarantee thereofNote Guarantee) that are is assumed by the transferee of any such assets pursuant to a customary novation agreement that releases if and only if the Company or such Restricted Subsidiary is released from any further liability and pursuant to a novation or indemnity agreement; and
(yB) any securities, notes or other obligations received by the Company or any such Restricted Subsidiary from such transferee that within 90 days after the Asset Sale are converted by the Company or such Restricted Subsidiary into cash within 180 days (cash, to the extent of the cash receivedreceived in that conversion; and
(C) any Designated Non-cash Consideration received by the Company or any of its Restricted Subsidiaries in such Asset Sale; provided that the aggregate Fair Market Value of such Designated Non-cash Consideration, taken together with the Fair Market Value at the time of receipt of all other Designated Non-cash Consideration received pursuant to this clause (C) less the amount of Net Proceeds previously realized in cash from prior Designated Non-cash Consideration is less than 10.0% of Adjusted Consolidated Net Tangible Assets determined as of such date; and
(iii) on the date such Asset Sale is consummated, after giving pro forma effect thereto and to the application of the Net Proceeds therefrom, the Company would be permitted to incur at least $1.00 of Indebtedness under the Debt to Assets Ratio test in clause (i) of Section 3.3(a), shall be deemed to be cash for purposes of this provision. .
(b) Within 360 days after the receipt of any Net Proceeds from an Asset Sale, the Company or any such Restricted Subsidiary may apply such those Net Proceeds, Proceeds at its option, option to any combination of the following:
(ai) to permanently repay Senior Debt; provided, however, that if such Senior Debt includes Senior Debt of the Company other than the Notes, the Company shall redeem Notes, repurchase Notes through open market purchases (and to correspondingly reduce commitments the extent such purchases are at or above 100% of the principal amount thereof) or make an offer (in accordance with respect thereto the procedures set forth in the case of revolving borrowings), or (bSection 3.7(d) for an Asset Sale Offer) to repurchase Notes at a price equal to 100% of the acquisition of a controlling interest in another business, the making of a capital expenditure or the acquisition of other long-term assets principal amount thereof plus accrued and parking facility agreementsunpaid interest, in each case, on an equal and ratable basis with such other Senior Debt;
(ii) to acquire all or substantially all of the properties or assets, or any Capital Stock, of one or more other Persons primarily engaged in the Oil and Gas Business, and, for this purpose, a Permitted division or line of business of a Person shall be treated as a separate Person;
(iii) to acquire a majority of the Voting Stock of one or more other Persons primarily engaged in the Oil and Gas Business if, after giving effect to any such acquisition of Capital Stock, such Person becomes a Restricted Subsidiary of the Company;
(iv) to make one or more capital expenditures; or
(v) to acquire other assets that are not classified as current assets under GAAP and that are used or useful in the Oil and Gas Business. .
(c) Pending the final application of any such Net Proceeds, the Company or any such Restricted Subsidiary may temporarily reduce invest the revolving Indebtedness under the New Credit Facility or otherwise invest such Net Proceeds in any manner that is not prohibited by the this Indenture. Any Net Proceeds from Asset Sales that are not applied or invested as provided in the first sentence of this paragraph preceding Section 3.7(b) will be deemed to constitute "“Excess Proceeds." When ”
(d) On the 361st day after the receipt of Net Proceeds from an Asset Sale (or, at the Company’s option, any earlier date), if the aggregate amount of Excess Proceeds then exceeds $10.0 million20,000,000, the Company will 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 with the Notes (an "Asset Sale Offer") containing provisions similar to those set forth in this Indenture with respect to offers to purchase or redeem with the proceeds of sales of assets, to purchase the maximum principal amount of Notes and such other pari passu Indebtedness that may be purchased out of the Excess Proceeds, at an . 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 thereonAdditional Interest, if any, to the date of purchasesettlement, and will be payable in accordance with cash. If the procedures set forth Asset Sale Payment Date is on or after an interest Record Date and on or before the related Interest Payment Date, any accrued and unpaid interest (including Additional Interest, if any) will be paid to the Person in whose name a Note is registered at the Indenture. To the extent that the aggregate amount close of business on such Record Date, and no additional interest will be payable to Holders who tender Notes tendered pursuant to the Asset Sale Offer. If any Excess Proceeds remain after consummation of an Asset Sale Offer is less than the Excess ProceedsOffer, the Company may use any remaining those Excess Proceeds for general corporate purposesany purpose not otherwise prohibited by this Indenture. If the aggregate principal amount of Notes surrendered by Holders thereof and other pari passu Indebtedness tendered into such Asset Sale Offer exceeds the amount of Excess Proceeds, the Trustee shall will select the Notes to be purchased on a pro rata basisbasis (except that any Notes represented by a Global Note will be selected by such method as DTC or its nominee or successor may require or, where such nominee or successor is the Trustee, a method that most nearly approximates pro rata selection as the Trustee deems fair and appropriate unless otherwise required by law), based on the amounts tendered (with such adjustments as may be deemed appropriate by the Company so that only Notes in denominations of $2,000, or an integral multiple of $1,000 in excess thereof, will be purchased). Upon completion of such offer to purchaseeach Asset Sale Offer, the amount of Excess Proceeds shall will be reset at zero.
(e) The Asset Sale Offer will remain open for a period of 20 Business Days following its commencement, except to the extent that a longer period is required by applicable law (the “Asset Sale Offer Period”). No later than five Business Days after the termination of the Asset Sale Offer Period (the “Asset Sale Payment Date”), the Company will purchase the principal amount of Notes and other pari passu Indebtedness required to be purchased pursuant to this covenant (the “Asset Sale Offer Amount”) or, if less than the Asset Sale Offer Amount has been so validly tendered, all Notes and other pari passu Indebtedness validly tendered in response to the Asset Sale Offer. On or before the Asset Sale Payment Date, the Company will, to the extent lawful, accept for payment, on a pro rata basis to the extent necessary, the Asset Sale Offer Amount of Notes and other pari passu Indebtedness or portions thereof so validly tendered and not properly withdrawn pursuant to the Asset Sale Offer, or if less than the Asset Sale Offer Amount has been validly tendered and not properly withdrawn, all Notes and other pari passu Indebtedness so validly tendered and not properly withdrawn. The Company will deliver to the Trustee an Officers’ Certificate stating that such Notes or portions thereof were accepted for payment by the Company in accordance with the terms of this covenant; and, in addition, the Company will make such deliveries of all certificates and notes as are required by the agreements governing the other pari passu Indebtedness. The Company or the Paying Agent, as the case may be, will promptly (but in any case not later than five Business Days after the termination of the Asset Sale Offer Period) mail or deliver to each tendering Holder of Notes, an amount equal to the purchase price of the Notes so validly tendered and not properly withdrawn by such Holder and accepted by the Company for purchase, and the Company will promptly issue a new Note, and the Trustee, upon delivery of an Officers’ Certificate from the Company will authenticate and mail or deliver such new Note to such Holder, in a principal amount equal to any unpurchased portion of the Note surrendered. In addition, the Company will take any and all other actions required by the agreements governing the other pari passu Indebtedness. Any Note not so accepted will be promptly mailed or delivered by the Company to the Holder thereof. The Company will publicly announce the results of the Asset Sale Offer on or as soon as practicable after the Asset Sale Payment Date.
(f) The Company will comply with the requirements of Rule 14e-1 under the Exchange Act and any other securities laws and regulations thereunder to the extent those laws and regulations are applicable in connection with each repurchase of Notes pursuant to an Asset Sale Offer. To the extent that the provisions of any securities laws or regulations conflict with the Asset Sale provisions hereunder, 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 hereunder by virtue of such conflict.
(g) The Trustee shall be under no obligation to ascertain the occurrence of an Asset Sale, or to determine or calculate Excess Proceeds, the Asset Sale Offer Period, the Asset Sale Payment Date or the Asset Sale Offer Amount, or give any notice with respect thereto. The Trustee may conclusively assume, in the absence of written notice to the contrary from the Company or a Holder or Holders of Notes, that no Asset Sale has occurred.
Appears in 1 contract
Samples: Indenture (DENVER PARENT Corp)
Assets Sales. The Company shall not, and shall not permit any of its Restricted Subsidiaries to, consummate an Asset Sale unless (i) the Company (or the 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 8075% of the consideration therefor received by the Company or such Restricted Subsidiary is in the form of cash; provided that the amount of (x) any liabilities (as shown on the Company's or such Restricted Subsidiary's most recent balance sheet), of the Company or any Restricted Subsidiary (other than contingent liabilities and liabilities that are by their terms subordinated to the Senior Notes or any guarantee such Subsidiary's Subsidiary Guarantee thereof) that are assumed by the transferee of any such assets pursuant to a customary novation agreement that releases the Company or such Restricted Subsidiary from further liability and (y) any securities, notes or other obligations received by the Company or any such Restricted Subsidiary from such transferee that are immediately converted by the Company or such Restricted Subsidiary into cash, shall be deemed to be cash within 180 days (to the extent of the cash received), shall be deemed to be cash ) for purposes of this provisionclause (ii). Within 360 15 days after the receipt of any Net Proceeds from an Asset Sale, the Company may must apply such Net Proceeds, at its option, Proceeds to repay Indebtedness under the Credit Facility (a) to permanently repay Senior Debt, (and to correspondingly reduce commitments with respect thereto in if Net Proceeds Indenture are from a sale of assets of the case of revolving borrowingsCompany or a Subsidiary other than a Foreign Subsidiary), or the Foreign Credit Facilities (b) to the acquisition if Net Proceeds are from a sale of assets of a controlling interest in another businessForeign Subsidiary), the making Senior Notes or any Permitted Refinancing Indebtedness of a capital expenditure or the acquisition of other long-term assets and parking facility agreementsforegoing; provided, in each case, in a Permitted Business. Pending the final application of any such Net Proceedshowever, the Company may temporarily shall not be obligated to permanently reduce the revolving Indebtedness availability under the New Credit Facility Facilities or otherwise invest the Foreign Credit Facilities (or such Net Proceeds Permitted Refinancing Indebtedness) in any manner that is not prohibited by the Indenture. Any event Net Proceeds from Asset Sales that are not applied or invested as provided in the first sentence of this paragraph will be deemed to constitute "Excess Proceeds." When the aggregate amount of Excess Proceeds exceeds $10.0 million, the Company will be required to make an offer to all Holders of Notes (an "Asset Sale Offer") to purchase the maximum principal amount of Notes that may be purchased out of the Excess Proceeds, at an offer price in cash in an amount equal to 100% of the principal amount thereof plus accrued and unpaid interest and Liquidated Damages thereon, if any, to the date of purchase, in accordance with the procedures set forth in the Indenture. To the extent that the aggregate amount of Notes tendered pursuant to an Asset Sale Offer is less than the Excess Proceeds, the Company may use any remaining Excess Proceeds for general corporate purposes. If the aggregate principal amount of Notes surrendered by Holders thereof exceeds the amount of Excess Proceeds, the Trustee shall select the Notes are used to be purchased on a pro rata basis. Upon completion of such offer to purchase, the amount of Excess Proceeds shall be reset at zeropay-off obligations thereunder.
Appears in 1 contract
Samples: Indenture (Goodman Conveyor Co)
Assets Sales. The Company shall not, and shall not permit any of its Restricted Subsidiaries to, consummate engage in an Asset Sale unless (i) the Company (or the 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 of; and (ii) at least 8075% of the consideration therefor received by the Company or such Restricted Subsidiary is in the form of cashcash or Cash Equivalents; provided that the amount of (x) any liabilities (as shown on the Company's or such Restricted Subsidiary's most recent balance sheet), sheet or in the notes thereto) of the Company or any Restricted Subsidiary (other than contingent liabilities and liabilities that are by their terms subordinated to the Notes or any guarantee thereof) that are assumed by the transferee of any such assets pursuant to a customary novation agreement that releases the Company or such Restricted Subsidiary from further liability and (y) any securities, notes or other obligations received by the Company or any such Restricted Subsidiary from such transferee that are immediately converted by the Company or such Restricted Subsidiary into cash within 180 days (to the extent of the cash received), shall be deemed to be cash for purposes of this provisionprovision and provided further that (1) the 75% limitation referred to above shall not apply to any Asset Sale in which the cash or Cash Equivalents portion of the consideration received therefor, determined in accordance with the foregoing proviso, is equal to or greater than what the net after-tax proceeds would have been had such Asset Sale complied with the aforementioned 75% limitation and (2) the provisions of clauses (i) and (ii) above shall not apply to any sale or other disposition of assets required pursuant to a consent order or other agreement entered into by the Company with the Federal Trade Commission or the Department of Justice in connection with the Delchamps Acquisition. Within 360 435 days after the receipt of any Net Proceeds from an Asset Sale, the Company or its Restricted Subsidiary, as the case may be, may apply such Net Proceeds, at its option, Proceeds by (ai) to permanently repay reducing Indebtedness under the Senior Credit Facility (and correspondingly reducing commitments with respect thereto) or other Senior Debt, (ii) investing (or entering into a binding commitment to invest) in any one or more business, capital expenditure or other tangible asset, in each case in the same line of business as the Company or its Restricted Subsidiaries was engaged in on the date hereof or a line of business reasonably related thereto, (iii) investing (or entering into a binding commitment to invest) in properties or assets that replace the properties and to correspondingly reduce commitments with respect thereto assets that are the subject of such Asset Sale and (iv) in the case of revolving borrowings)a sale of a store or stores, deeming such Net Proceeds to have been applied to the extent of any capital expenditures made to acquire or construct another store within 435 days preceding the date of the Asset Sale; provided that if such Net Proceeds are applied by entering into a binding commitment under clause (ii) or (biii) to above, then the acquisition investment contemplated by such commitment shall be made no later than 45 days following the end of a controlling interest in another business, the making of a capital expenditure or the acquisition of other long-term assets and parking facility agreements, in each case, in a Permitted Businesssuch 435 day period. Pending the final application of any such Net Proceeds, the Company or its Restricted Subsidiary, as the case may be, may temporarily reduce the revolving Indebtedness under the New Senior Credit Facility or otherwise invest such Net Proceeds in any manner that is not prohibited by the this Indenture. Any Net Proceeds from Asset Sales that are not applied or invested as provided in the first sentence of this paragraph will be deemed to constitute "Excess Proceeds." When the aggregate amount of Excess Proceeds exceeds $10.0 15.0 million, the Company will shall be required to make an offer to all Holders of Notes (an "Asset Sale Offer") to purchase the maximum principal amount of Notes that may be purchased out of the Excess Proceeds, at an offer a price in cash in an amount equal to 100% of the principal amount thereof plus accrued and unpaid interest and Liquidated Damages thereonDamages, if any, thereon to the date of purchase, in accordance with the procedures set forth in the this Indenture. To the extent that the aggregate amount of Notes tendered pursuant to an Asset Sale Offer is less than the aggregate amount of Excess Proceeds, the Company or its Restricted Subsidiary, as the case may be, may use any remaining Excess Proceeds for general corporate purposes. If the aggregate principal amount of Notes surrendered by Holders thereof exceeds the aggregate amount of Excess Proceeds, the Trustee shall select the Notes to be purchased on a pro rata basisin accordance with the terms of this Indenture. Upon completion of such offer to purchaseeach Asset Sale Offer, the amount of Excess Proceeds shall be reset at zero.
Appears in 1 contract
Samples: Indenture (Jitney Jungle Stores of America Inc /Mi/)
Assets Sales. The Company shall not, and shall not permit any of its Restricted Subsidiaries to, consummate an Asset Sale unless (i) the Company (or the 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 8075% of the consideration therefor received by the Company or such Restricted Subsidiary is in the form of cash; provided that the amount of (x) any liabilities (as shown on the Company's or such Restricted Subsidiary's most recent balance sheet), of the Company or any Restricted Subsidiary (other than contingent liabilities and liabilities that are by their terms subordinated to the Senior Notes or any guarantee such Subsidiary's Subsidiary Guarantee thereof) that are assumed by the transferee of any such assets pursuant to a customary novation agreement that releases the Company or such Restricted Subsidiary from further liability and (y) any securities, notes or other obligations received by the Company or any such Restricted Subsidiary from such transferee that are immediately converted by the Company or such Restricted Subsidiary into cash, shall be deemed to be cash within 180 days (to the extent of the cash received), shall be deemed to be cash ) for purposes of this provisionclause (ii). Within 360 365 days after the receipt of any Net Proceeds from an Asset Sale, the Company may apply such Net Proceeds, at its option, (a) to permanently repay Senior Debt, (and to correspondingly reduce commitments with respect thereto in Indebtedness under the case of revolving borrowings), Revolving Credit Facility or the Australian Revolving Credit Facility or (b) to the acquisition of an investment in a controlling interest in another business, Permitted Business through the making of a capital expenditure or the acquisition of other long-term assets and parking facility agreements, in each case, in a Permitted Businessassets. Pending the final application of any such Net Proceeds, the Company may temporarily reduce the revolving Indebtedness under the New Credit Facility or otherwise invest such Net Proceeds in any manner that is not prohibited by the this Indenture. Any Net Proceeds from Asset Sales that are not applied or invested as provided in the first sentence of this paragraph will be deemed to constitute "Excess Proceeds." When the aggregate amount of Excess Proceeds exceeds $10.0 million5.0 million (the "Excess Proceeds Offer Triggering Event"), the Company will be required to make an offer to all Holders of Senior Notes (an "Asset Sale Offer") to purchase the maximum principal amount of Senior Notes that may be purchased out of the Excess Proceeds, at an offer price in cash in an amount equal to 100% of the principal amount thereof plus accrued and unpaid interest and Liquidated Damages thereon, if any, to the date of purchase, in accordance with the procedures set forth in Section 3.09 hereof. The Company shall comply with the Indenturerequirements 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 Senior Notes in any Asset Sales Offer. To the extent that the aggregate amount of Senior Notes tendered pursuant to an Asset Sale Offer is less than the Excess Proceeds, the Company may use any remaining Excess Proceeds for general corporate purposes. If the aggregate principal amount of Senior Notes surrendered by Holders thereof exceeds the amount of Excess Proceeds, the Trustee shall select the Senior Notes to be purchased on a pro rata basis. Upon completion of such offer to purchase, the amount of Excess Proceeds shall be reset at zero.
Appears in 1 contract
Samples: Indenture (Goodman Conveyor Co)
Assets Sales. The Company shall not, and shall not permit any of its Restricted Subsidiaries to, consummate an Asset Sale unless (i) the Company (or the 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 of the Board of Directors set forth in an Officers' Certificate delivered to the TrusteeSenior Subordinated Note Trustee with respect to any Asset Sale determined to have a fair market value greater than $25.0 million) of the assets or Equity Interests issued or sold or otherwise disposed of and (ii) at least 8075% of the consideration therefor received by the Company or such Restricted Subsidiary is in the form of cashcash or Cash Equivalents; provided PROVIDED that the amount of following amounts shall be deemed to be cash: (xw) any liabilities (as shown on the Company's or such Restricted Subsidiary's most recent balance sheet), of the Company or any Restricted Subsidiary of the Company (other than contingent liabilities and liabilities that are by their terms subordinated to the Senior Subordinated 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 liability, (yx) any securities, notes or other obligations received by the Company or any such Restricted Subsidiary from such transferee that are converted by the Company or such Restricted Subsidiary into cash within 180 days after the consummation of such Asset Sale (to the extent of the cash received), shall be deemed (y) any Designated Noncash Consideration received by the Company or any of its Restricted Subsidiaries in such Asset Sale; PROVIDED that the aggregate fair market value (as determined above) of such Designated Noncash Consideration, taken together with the fair market value at the time of receipt of all other Designated Noncash Consideration received pursuant to be this clause (y) less the amount of Net Proceeds previously realized in cash for purposes from prior Designated Noncash Consideration is less than 5% of this provision. Within 360 days after Total Assets at the time of the receipt of any Net Proceeds from an Asset Sale, such Designated Noncash Consideration (with the Company may apply such Net Proceeds, fair market value of each item of Designated Noncash Consideration being measured at its option, the time received and without giving effect to subsequent changes in value) and (az) to permanently repay Senior Debt, (and to correspondingly reduce commitments with respect thereto in the case of revolving borrowings), or (b) to the acquisition of a controlling interest in another business, the making of a capital expenditure or the acquisition of other long-term assets and parking facility agreements, in each case, in a Permitted Business. Pending the final application of any such Net Proceeds, the Company may temporarily reduce the revolving Indebtedness under the New Credit Facility or otherwise invest such Net Proceeds in any manner that is not prohibited by the Indenture. Any Net Proceeds from Asset Sales that are not applied or invested as provided in the first sentence of this paragraph will be deemed to constitute "Excess Proceeds." When the aggregate amount of Excess Proceeds exceeds $10.0 million, the Company will be required to make an offer to all Holders of Notes (an "Asset Sale Offer") to purchase the maximum principal amount of Notes that may be purchased out of the Excess Proceeds, at an offer price in cash Additional Assets received in an amount equal to 100% of the principal amount thereof plus accrued and unpaid interest and Liquidated Damages thereon, if any, to the date of purchase, in accordance with the procedures set forth in the Indenture. To the extent that the aggregate amount of Notes tendered pursuant to an Asset Sale Offer is less than the Excess Proceeds, the Company may use any remaining Excess Proceeds for general corporate purposes. If the aggregate principal amount of Notes surrendered by Holders thereof exceeds the amount of Excess Proceeds, the Trustee shall select the Notes to be purchased on a pro rata basis. Upon completion of such offer to purchase, the amount of Excess Proceeds shall be reset at zeroexchange-of-assets transaction.
Appears in 1 contract