Limitation on Asset Sales. The Company will not, and will not permit any of its Restricted Subsidiaries to, consummate an Asset Sale unless: (1) the Company or the Restricted Subsidiary, as the case may be, receives consideration at the time of the Asset Sale at least equal to the Fair Market Value of the assets or Equity Interests issued or sold or otherwise disposed of; and (2) at least 85% of the consideration received in the Asset Sale by the Company or such Restricted Subsidiary is in the form of cash. For purposes of this Section 5.10, each of the following will be deemed to be cash: (1) any liabilities, as shown on the Company’s most recent consolidated balance sheet, of the Company or any Subsidiary (other than contingent liabilities and Indebtedness that are (x) by their terms subordinated to the Notes or any Note Guarantee, (y) unsecured, or (z) secured by a Lien on the assets or rights that are the subject of the Asset Sale, which Lien is junior in priority to the Liens securing the Notes or any Note Guarantee) that are assumed by the transferee of any such assets pursuant to a customary novation agreement that releases the Company or such Subsidiary from further liability; (2) 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, to the extent of the cash received in that conversion; and (3) any stock or assets of the kind referred to in clauses (2) or (4) of the next paragraph of this covenant. Within 365 days after the receipt of any Net Proceeds from an Asset Sale, the Company (or the applicable Restricted Subsidiary, as the case may be) may apply such Net Proceeds: (1) to repay Indebtedness and other Obligations under the Working Capital Facility and to correspondingly permanently reduce commitments with respect thereto; (2) to acquire all or substantially all of the assets of, or any Capital Stock of, another Permitted Business, if, after giving effect to any such acquisition of Capital Stock, the Permitted Business is or becomes (x) a Restricted Subsidiary of the Company and (y) a Guarantor; (3) to make capital expenditures in a Permitted Business (other than Equity Interests, Indebtedness or current assets); or (4) to acquire other assets (other than Equity Interests or Indebtedness) that are not classified as current assets under GAAP and that are used or useful in a Permitted Business. Pending the final application of any Net Proceeds, the Company may temporarily reduce borrowings under the Working Capital Facility or otherwise invest the Net Proceeds in any manner that is not prohibited by this Indenture. Any Net Proceeds from Asset Sales that are not applied or invested as provided in the second paragraph of this covenant will constitute “Excess Proceeds.” When the aggregate amount of Excess Proceeds exceeds $5.0 million, the Company will, within five (5) days thereof, make an Asset Sale Offer to all Holders and all holders of other senior secured Indebtedness that is pari passu in right of payment and as to security interests with the Notes with respect to the assets that are the subject of such Asset Sale 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 amount of Notes and such other pari passu Indebtedness that may be purchased out of the Excess Proceeds in accordance with the procedures set forth in Section 3.09 hereof. The offer price for the Notes in any Asset Sale Offer will be equal to 100% of the aggregate principal amount of the Notes, plus accrued and unpaid interest to the date of purchase, and will be payable in cash. If any Excess Proceeds remain after consummation of an Asset Sale Offer, the Company may use those Excess Proceeds for any purpose not otherwise prohibited by this Indenture. If the aggregate principal amount of Notes and the amount of other pari passu Indebtedness tendered into such Asset Sale Offer exceeds the amount of Excess Proceeds, the Trustee shall select the Notes and such other pari passu Indebtedness to be purchased on a pro rata basis. Upon completion of each Asset Sale Offer, the amount of Excess Proceeds will be reset at zero.
Appears in 5 contracts
Samples: Indenture (FiberTower CORP), Indenture (FiberTower CORP), Indenture (FiberTower CORP)
Limitation on Asset Sales. The Company will shall not, and will shall not permit any of its Restricted Subsidiaries to, consummate an Asset Sale unless:
(1) the Company or the such Restricted Subsidiary, as the case may be, Subsidiary receives consideration at the time of the such Asset Sale at least equal to the Fair Market Value fair market value of the assets or Equity Interests issued or sold or otherwise disposed of;
(2) such fair market value is determined by the Board of Directors of the Company; and
(23) at least 8575% of the consideration from such Asset Sale, together with all other Asset Sales since the Issue Date on a cumulative basis (including by way of relief from, or by any other Person assuming responsibility for, any liability, contingent or otherwise) received in the Asset Sale by the Company or such Restricted Subsidiary is in the form of cash, Cash Equivalents or readily marketable securities. For purposes of this Section 5.104.11, each of the following will shall be deemed to be cash:
(1a) any liabilities, liabilities (as shown on the Company’s or such Restricted Subsidiary’s most recent consolidated balance sheet, ) of the Company or any Restricted Subsidiary thereof (other than contingent liabilities and Indebtedness liabilities that are (x) by their terms subordinated to the Notes or any Note Guarantee, (y) unsecured, or (z) secured by a Lien on the assets or rights that are the subject of the Asset Sale, which Lien is junior in priority to the Liens securing the Notes or any Note GuaranteeNotes) 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;
(2b) 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 recipient thereof into cash, Cash Equivalents or readily marketable securities within 180 days after receipt thereof (to the extent of the cash cash, Cash Equivalents or readily marketable securities received in that conversion);
(c) Productive Assets; and
(3d) any stock Designated Noncash Consideration received by the Issuers or assets any Restricted Subsidiary in such Asset Sale having an aggregate fair market value, taken together with all other Designated Noncash Consideration received pursuant to this clause (d) that is at that time outstanding, not to exceed the greater of (i) $4.5 billion and (ii) 3.0% of Total Assets, with the kind referred fair market value of each item of Designated Noncash Consideration being measured at the time received and without giving effect to subsequent changes in clauses (2) or (4) of the next paragraph of this covenantvalue. Within 365 450 days after the receipt of any Net Proceeds from an Asset Sale, the Company (or the applicable a Restricted Subsidiary, as the case may be) Subsidiary thereof may apply an amount equal to the Applicable Percentage of such Net Proceeds (the “Applicable Proceeds”) at its option:
(1) to repay Indebtedness and other Obligations or otherwise retire debt under the Working Capital Facility and to correspondingly permanently reduce commitments with respect theretoCredit Facilities or any other Indebtedness of the Restricted Subsidiaries of the Company (other than Indebtedness represented solely by a guarantee of a Restricted Subsidiary of the Company);
(2) to acquire all repay or substantially all otherwise retire unsecured Indebtedness of the assets ofCompany, or any Capital Stock of, another Permitted Business, if, after giving effect to any such acquisition of Capital Stock, the Permitted Business so long as a pro rata offer is or becomes (x) a Restricted Subsidiary of the Company and (y) a Guarantor;
(3) to make capital expenditures in a Permitted Business (other than Equity Interests, Indebtedness or current assets); or
(4) to acquire other assets (other than Equity Interests or Indebtedness) that are not classified as current assets under GAAP and that are used or useful in a Permitted Business. Pending the final application of any Net Proceeds, the Company may temporarily reduce borrowings under the Working Capital Facility or otherwise invest the Net Proceeds in any manner that is not prohibited by this Indenture. Any Net Proceeds from Asset Sales that are not applied or invested as provided in the second paragraph of this covenant will constitute “Excess Proceeds.” When the aggregate amount of Excess Proceeds exceeds $5.0 million, the Company will, within five (5) days thereof, make an Asset Sale Offer to all Holders and all holders of other senior secured Indebtedness that is pari passu in right of payment and as to security interests with the Notes with respect to the assets that are the subject of such Asset Sale 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 amount of Notes and such other pari passu Indebtedness that may be purchased out of the Excess Proceeds made in accordance with the procedures set forth in Section 3.09 hereof. The offer price for the Notes next paragraph to all holders of other unsecured Indebtedness issued by the Company; or
(3) to invest in Productive Assets; provided that any such amount of Net Proceeds which the Company or a Restricted Subsidiary thereof has committed to invest in Productive Assets within 450 days of the applicable Asset Sale Offer will may be equal to 100% invested in Productive Assets within two years of such Asset Sale; provided that (1) pending the aggregate principal amount final application of the Notes, plus accrued and unpaid interest to the date of purchase, and will be payable in cash. If any Excess Proceeds remain after consummation of an Asset Sale Offer, the Company may use those Excess Proceeds for any purpose not otherwise prohibited by this Indenture. If the aggregate principal amount of Notes and the amount of other pari passu Indebtedness tendered into any such Asset Sale Offer exceeds the amount of Excess Proceeds, the Trustee shall select the Notes and such other pari passu Indebtedness Applicable Proceeds pursuant to be purchased on a pro rata basis. Upon completion of each Asset Sale Offer, the amount of Excess Proceeds will be reset at zero.this
Appears in 5 contracts
Samples: Seventh Supplemental Indenture (Cco Holdings LLC), Indenture (Cco Holdings LLC), Fifth Supplemental Indenture (Cco Holdings Capital Corp)
Limitation on Asset Sales. The Company will not, and will not permit any of its Restricted Subsidiaries to, consummate an Asset Sale unless:
(1) the Company or the applicable Restricted Subsidiary, as the case may be, Subsidiary receives consideration at the time of the such Asset Sale at least equal to the Fair Market Value fair market value of the assets or Equity Interests issued or that are sold or otherwise disposed of, as reasonably determined in good faith by the Company’s Board of Directors or a senior officer of the Company; and
(2) at least 8575% of the consideration received in the Asset Sale by the Company or such the applicable Restricted Subsidiary from the Asset Sale is in the form of cashcash or Cash Equivalents; provided that in the case of the sale of all of the IMC Salt Business Unit and Xxxxx, in the alternative, up to 35% of the consideration received by the Company or the applicable Restricted Subsidiary in the sale may be in the form of Capital Stock of the Person that will hold the IMC Salt Business Unit and Xxxxx following the Asset Sale if the remainder is in the form of cash or Cash Equivalents; provided, further, that the requirement in this clause (2) shall not apply in the case of the sale of all or any part of the IMC Chemicals Business Unit. For the purposes of this Section 5.10clause (2) above, each the amount of the following will be deemed to be cash:
(1) any liabilities, as Indebtedness shown on the Company’s most recent consolidated applicable balance sheet, sheet of the Company or any Subsidiary (the applicable Restricted Subsidiary, other than contingent liabilities and Indebtedness that are (x) is by their its terms subordinated to the Notes or any Note Guarantee, (y) unsecured, or (z) secured by a Lien on the assets or rights that are the subject of the Asset Sale, which Lien is junior in priority to the Liens securing the Notes or any Note Guarantee) that are assumed by the transferee of any such assets pursuant will be deemed to a customary novation agreement that releases be cash. Additionally, the Company or such Subsidiary from further liability;
(2) 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, to the extent of the cash received in that conversion; and
(3) any stock or assets of the kind referred to in clauses (2) or (4) of the next paragraph of this covenant. Within 365 days after the receipt of any Net Proceeds from an Asset Sale, the Company (or the applicable Restricted Subsidiary, as the case may be) may , must apply such the Net ProceedsCash Proceeds from each Asset Sale to:
(1) to repay Indebtedness and other Obligations under the Working Capital Facility and to correspondingly permanently reduce commitments with respect theretoCredit Agreement;
(2) to acquire all or substantially all of the assets of, or any Capital Stock of, another Permitted Business, if, after giving effect to any such acquisition of Capital Stock, the Permitted Business is or becomes repay (xincluding by purchase) a Restricted Subsidiary of the Company and (y) a Guarantorsecured obligations;
(3) to make capital expenditures in repay (including by purchase) any Indebtedness of any Restricted Subsidiary that is not a Permitted Business (other than Equity Interests, Indebtedness or current assets)Guarantor; orand/or
(4) to acquire other make an investment in or expenditures for assets (other than Equity Interests or Indebtednessincluding Capital Stock of any entity) (a) that are not classified as current replace the assets under GAAP and that are were the subject of the Asset Sale or (b) that will be used or useful in a Permitted Business. Pending the final application business of any Net Proceeds, the Company may temporarily reduce borrowings under and its Subsidiaries as existing on the Working Capital Facility Issue Date or otherwise invest the Net Proceeds in any manner that is not prohibited by this Indenturebusinesses reasonably related thereto (“Replacement Assets”). Any Net Cash Proceeds from Asset Sales that are the Company does not applied apply, or invested as provided decides not to apply, in accordance with the second preceding paragraph of this covenant will constitute a “Excess ProceedsNet Proceeds Offer Amount.” The 366th day after an Asset Sale or any earlier date on which the Board of Directors of the Company determines not to apply the Net Cash Proceeds in accordance with the preceding paragraph is a “Net Proceeds Offer Trigger Date.” When the aggregate amount of Excess Net Proceeds Offer Amount is equal to or exceeds $5.0 25.0 million, the Company will, within five (5) days thereof, must make an Asset Sale offer to purchase (the “Net Proceeds Offer”) on a date that is not less than 30 days nor more than 45 days following the applicable Net Proceeds Offer to Trigger Date, from
(a) all Holders and of Notes and
(b) all holders of other senior secured Indebtedness (“Other Indebtedness”) that (x) is pari passu not, by its terms, expressly subordinated in right of payment and as to security interests with the Notes with respect to the assets and (y) contains provisions requiring that are the subject of such Asset Sale containing provisions similar to those set forth in this Indenture with respect to offers an offer to purchase or redeem such Other Indebtedness be made with the proceeds of sales of assets to purchase from the Asset Sale, on a pro rata basis, the maximum principal amount of Notes and such other pari passu Other Indebtedness that may be purchased out of the Excess Proceeds in accordance with the procedures set forth in Section 3.09 hereofNet Proceeds Offer Amount. The offer price for the Notes in any Asset Sale Net Proceeds Offer will be equal to 100% of the aggregate principal amount of the NotesNotes to be purchased, plus any accrued and unpaid interest on such Notes, if any, to the date of purchase. The following events will be deemed to constitute an Asset Sale and the Net Cash Proceeds from such Asset Sale must be applied in accordance with this Section 4.10:
(1) in the event any non-cash consideration received by the Company or any Restricted Subsidiary of the Company in connection with any Asset Sale is converted into or sold or otherwise disposed of for cash (other than interest received with respect to any such non-cash consideration), or
(2) in the event of the transfer of substantially all, but not all, of the assets of the Company and its Restricted Subsidiaries as an entirety to a Person in a transaction permitted under Section 5.01, and as a result thereof the Company is no longer an obligor on the Notes, the successor corporation shall be deemed to have sold the assets of the Company and its Restricted Subsidiaries not so transferred for purposes of this Section 4.10, and shall comply with the provisions of this Section 4.10 with respect to such deemed sale as if it were an Asset Sale. In addition, the fair market value of such assets of the Company or its Restricted Subsidiaries deemed to be sold shall be deemed to be Net Cash Proceeds for purposes of this Section 4.10. Notwithstanding the provisions described in the immediately preceding paragraphs, the Company and its Restricted Subsidiaries may consummate an Asset Sale without complying with such provisions to the extent that (a) at least 75% of the consideration for such Asset Sale constitutes Replacement Assets and (b) such Asset Sale is for fair market value. Any cash consideration that does not constitute Replacement Assets that is received by the Company or any of its Restricted Subsidiaries in connection with any Asset Sale permitted under this paragraph will constitute Net Cash Proceeds and will be payable subject to the provisions described in cashthe preceding paragraphs. If any Excess The Company shall mail a notice of a Net Proceeds remain after consummation Offer by first-class mail, postage prepaid, to the record Holders as shown on the register of an Asset Sale OfferHolders within 30 days following the Net Proceeds Offer Trigger Date, with a copy to the Company may use those Excess Trustee, containing all instructions and materials necessary to enable such Holders to tender Notes pursuant to the Net Proceeds Offer and shall state the following terms:
(1) that the Net Proceeds Offer is being made pursuant to this Section 4.10, that all Notes tendered will be accepted for any purpose not otherwise prohibited by this Indenture. If payment; provided, however, that if the aggregate principal amount of Notes and Other Indebtedness tendered in a Net Proceeds Offer plus accrued interest at the expiration of such offer exceeds the aggregate amount of other pari passu Indebtedness tendered into such Asset Sale Offer exceeds the amount of Excess ProceedsNet Proceeds Offer, the Trustee Company shall select the Notes and such other pari passu Indebtedness to be purchased on a pro rata basis, the Notes and Other Indebtedness to be purchased (with such adjustments as may be deemed appropriate by the Company so that only Notes in denominations of $1,000, as applicable, or multiples thereof shall be purchased) and that the Net Proceeds Offer shall remain open for a period of 20 business days or such longer periods as may be required by law;
(2) the offer price (including the amount of accrued interest) and the Net Proceeds Offer date of payment (“Net Proceeds Offer Payment Date”) (which shall be not less than 30 nor more than 45 days following the applicable Net Proceeds Offer Trigger Date and which shall be at least five business days after the Trustee receives notice thereof from the Company);
(3) that any Note not tendered will continue to accrue interest;
(4) that, unless the Company defaults in making payment therefor, any Note accepted for payment pursuant to the Net Proceeds Offer shall cease to accrue interest after the Net Proceeds Offer Payment Date;
(5) that Holders electing to have a Note purchased pursuant to a Net Proceeds Offer will be required to surrender such Note, with the form entitled “Option of Holder to Elect Purchase” on the reverse of the Note completed, to the Paying Agent at the address specified in the notice prior to the close of business on the business day prior to the Net Proceeds Offer Payment Date;
(6) that Holders will be entitled to withdraw their election if the Paying Agent receives, not later than the second business day prior to the Net Proceeds Offer Payment Date, a telegram, telex, facsimile transmission or letter setting forth the name of such Holder, the principal amount of the Notes such Holder delivered for purchase and a statement that such Holder is withdrawing his election to have such Note purchased; and
(7) that Holders whose Notes are purchased only in part will be issued new Notes in a principal amount equal to the unpurchased portion of the Note surrendered; provided, however, that each Note purchased and each new Note issued shall be in an original principal amount of $1,000 or integral multiples thereof. On or before the Net Proceeds Offer Payment Date, the Company shall (a) accept for payment Notes or portions thereof (in integral multiples of $1,000) validly tendered pursuant to the Net Proceeds Offer, (b) deposit with the Paying Agent in accordance with Section 2.15 U.S. Dollars sufficient to pay the purchase price plus accrued and unpaid interest, if any, of all Notes to be purchased and (c) deliver to the Trustee Notes so accepted together with an Officers’ Certificate stating the Notes or portions thereof being purchased by the Company. Upon completion receipt by the Paying Agent of each Asset Sale the monies specified in clause (b) above and a copy of the Officers’ Certificate specified in clause (c) above, the Paying Agent shall promptly mail to the Holders of Notes so accepted payment in an amount equal to the purchase price plus accrued and unpaid interest, if any, out of the funds deposited with the Paying Agent in accordance with the preceding sentence. The Trustee shall promptly authenticate and mail to such Holders new Notes equal in principal amount to any unpurchased portion of the Notes surrendered. Upon the payment of the purchase price for the Notes accepted for purchase, the Trustee shall return the Notes purchased to the Company for cancellation. Any monies remaining after the purchase of Notes pursuant to a Net Proceeds Offer shall be returned within three business days by the Trustee to the Company except with respect to monies owed as obligations to the Trustee pursuant to Article Seven. For purposes of this Section 4.10, the Trustee shall act as the Paying Agent. To the extent the amount of Notes tendered pursuant to any Net Proceeds Offer is less than the amount of Net Cash Proceeds subject to such Net Proceeds Offer, the amount Company may use any remaining portion of Excess such Net Cash Proceeds will not required to fund the repurchase of tendered Notes for general corporate purposes and such Net Proceeds Offer Amount shall be reset at to zero. The Company will comply with the requirements of Rule 14e-1 under the Exchange Act and any other securities laws and regulations thereunder to the extent such laws and regulations are applicable in connection with the repurchase of Notes pursuant to a Net Proceeds Offer. To the extent that the provisions of any securities laws or regulations conflict with the provisions of this Section 4.10, the Company shall comply with the applicable securities laws and regulations and shall not be deemed to have breached its obligations under the provisions of this Section 4.10 by virtue thereof.
Appears in 5 contracts
Samples: Supplemental Indenture (Cargill Fertilizer, LLC), Supplemental Indenture (Cargill Fertilizer, LLC), Supplemental Indenture (Mosaic Crop Nutrition, LLC)
Limitation on Asset Sales. The Company will not, and will not permit any of its Restricted Subsidiaries to, consummate an Asset Sale unless:
(1) the Company or the Restricted Subsidiary, as the case may be, receives consideration at the time of the Asset Sale at least equal to the Fair Market Value of the assets or Equity Interests issued or sold or otherwise disposed of; and
(2) at least 85% of the consideration received in the Asset Sale by the Company or such Restricted Subsidiary is in the form of cash. For purposes of this Section 5.10, each of the following will be deemed to be cash:
(1) any liabilities, as shown on the Company’s most recent consolidated balance sheet, of the Company or any Subsidiary (other than contingent liabilities and Indebtedness that are (x) by their terms subordinated to the Notes or any Note Guarantee, (y) unsecured, or (z) secured by a Lien on the assets or rights that are the subject of the Asset Sale, which Lien is junior in priority to the Liens securing the Notes or any Note Guarantee) that are assumed by the transferee of any such assets pursuant to (A) a customary novation agreement that releases the Company or such Subsidiary from further liability or (B) an assignment agreement that includes, in lieu of such a release, the agreement of the transferee or its parent company to indemnify and hold harmless the Company or such Subsidiary from and against any loss, liability or cost in respect of such assumed liability;
(2) 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, to the extent of the cash received in that conversion; and
(3) any stock or assets of the kind referred to in clauses (2) or (4) of the next paragraph of this covenant. Within 365 days after the receipt of any Net Proceeds from an Asset Sale, the Company (or the applicable Restricted Subsidiary, as the case may be) may apply such Net Proceeds:
(1) to repay Indebtedness and other Obligations under the Working Capital Facility and to correspondingly permanently reduce commitments with respect thereto;
(2) to acquire all or substantially all of the assets of, or any Capital Stock of, another Permitted Business, if, after giving effect to any such acquisition of Capital Stock, the Permitted Business is or becomes (x) a Restricted Subsidiary of the Company and (y) a Guarantor;
(3) to make capital expenditures in a Permitted Business (other than Equity Interests, Indebtedness or current assets)Business; or
(4) to acquire other assets (other than Equity Interests or Indebtedness) that are not classified as current assets under GAAP and that are used or useful in a Permitted Business. Pending the final application of any Net Proceeds, the Company may temporarily reduce borrowings under the Working Capital Facility or otherwise invest the Net Proceeds in any manner that is not prohibited by this Indenture. Any Net Proceeds from Asset Sales that are not applied or invested as provided in the second paragraph of this covenant will constitute “Excess Proceeds.” When the aggregate amount of Excess Proceeds exceeds $5.0 million, the Company will, within five (5) days thereof, make an Asset Sale Offer to all Holders and all holders of other senior secured Indebtedness that is pari passu in right of payment and as to security interests with the Notes with respect to the assets that are the subject of such Asset Sale 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 amount of Notes and such other pari passu Indebtedness that may be purchased out of the Excess Proceeds in accordance with the procedures set forth in Section 3.09 hereof. The offer price for the Notes in any Asset Sale Offer will be equal to 100% of the aggregate principal amount Aggregate Accreted Principal Amount of the Notes, plus accrued and unpaid interest to the date of purchase, and will be payable in cash. If any Excess Proceeds remain after consummation of an Asset Sale Offer, the Company may use those Excess Proceeds for any purpose not otherwise prohibited by this Indenture. If the aggregate principal amount Aggregate Accreted Principal Amount of Notes and the amount of other pari passu Indebtedness tendered into such Asset Sale Offer exceeds the amount of Excess Proceeds, the Trustee shall select the Notes and such other pari passu Indebtedness to be purchased on a pro rata basis. Upon completion of each Asset Sale Offer, the amount of Excess Proceeds will be reset at zero.
Appears in 4 contracts
Samples: Indenture (FiberTower CORP), Indenture (FiberTower CORP), Indenture (FiberTower CORP)
Limitation on Asset Sales. The Company will shall not, and will shall not permit any of its Restricted Subsidiaries to, consummate an Asset Sale unless:
(1) the Company or the such Restricted Subsidiary, as the case may be, Subsidiary receives consideration at the time of the such Asset Sale at least equal to the Fair Market Value fair market value of the assets or Equity Interests issued or sold or otherwise disposed of;
(2) such fair market value is determined by the Board of Directors of the Company; and
(23) at least 8575.0% of the consideration therefor received in the Asset Sale by the Company or such Restricted Subsidiary is in the form of cash, Cash Equivalents or readily marketable securities. For purposes of this Section 5.104.11, each of the following will shall be deemed to be cash:
(1a) any liabilities, liabilities (as shown on the Company’s 's or such Restricted Subsidiary's most recent consolidated balance sheet, ) of the Company or any Restricted Subsidiary thereof (other than contingent liabilities and Indebtedness liabilities that are (x) by their terms subordinated to the Notes or any Note Guarantee, (y) unsecured, or (z) secured by a Lien on the assets or rights that are the subject of the Asset Sale, which Lien is junior in priority to the Liens securing the Notes or any Note GuaranteeNotes) 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;
(2b) 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 recipient thereof into cash, Cash Equivalents or readily marketable securities within 180 days after receipt thereof (to the extent of the cash cash, Cash Equivalents or readily marketable securities received in that conversion);
(c) Productive Assets; and
(3d) any stock Designated Noncash Consideration received by the Issuers or assets any Restricted Subsidiary in such Asset Sale having an aggregate fair market value, taken together with all other Designated Noncash Consideration received pursuant to this clause (d) that is at that time outstanding, not to exceed the greater of $500.0 million and 3.0% of Total Assets, with the kind referred fair market value of each item of Designated Noncash Consideration being measured at the time received and without giving effect to subsequent changes in clauses (2) or (4) of the next paragraph of this covenantvalue. Within 365 days after the receipt of any Net Proceeds from an Asset Sale, the Company (or the applicable a Restricted Subsidiary, as the case may be) Subsidiary thereof may apply such Net ProceedsProceeds at its option:
(1) to repay Indebtedness and other Obligations or otherwise retire debt under the Working Capital Facility and to correspondingly permanently reduce commitments with respect thereto;Credit Facilities or any other Indebtedness of the Restricted Subsidiaries of the Company (other than Indebtedness represented solely by a guarantee of a Restricted Subsidiary of the Company); or
(2) to acquire all or substantially all of the assets of, or any Capital Stock of, another Permitted Business, if, after giving effect to invest in Productive Assets; provided that any such acquisition amount of Capital Stock, Net Proceeds which the Permitted Business is Company or becomes (x) a Restricted Subsidiary thereof has committed to invest in Productive Assets within 365 days of the Company and (y) a Guarantor;
(3) to make capital expenditures applicable Asset Sale may be invested in a Permitted Business (other than Equity Interests, Indebtedness or current assets); or
(4) to acquire other assets (other than Equity Interests or Indebtedness) that are not classified as current assets under GAAP and that are used or useful in a Permitted BusinessProductive Assets within two years of such Asset Sale. Pending the final application The amount of any Net Proceeds, the Company may temporarily reduce borrowings under the Working Capital Facility or otherwise invest the Net Proceeds in any manner that is not prohibited by this Indenture. Any Net Proceeds received from Asset Sales that are not applied or invested as provided in the second preceding paragraph of this covenant will shall constitute “Excess Proceeds.” When the aggregate amount of Excess Proceeds exceeds $5.0 25.0 million, the Company will, within five (5) days thereof, shall make an Asset Sale Offer to all Holders and all holders of other senior secured Indebtedness that is pari passu in right of payment and as to security interests equal priority with the Notes with respect to the assets that are the subject of such Asset Sale containing provisions similar to those set forth in this Indenture with respect to requiring 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 of equal priority that may be purchased out of the Excess Proceeds in accordance with Proceeds, which amount includes the procedures set forth in Section 3.09 hereofentire amount of the Net Proceeds. The offer price for the Notes in any Asset Sale Offer will shall be payable in cash and equal to 100100.0% of the aggregate principal amount of the Notes, subject Notes plus accrued and unpaid interest interest, if any, to the date of purchase, and will be payable in cash. If any Excess Proceeds remain after consummation of an Asset Sale Offer, the Company may use those Excess Proceeds for any purpose not otherwise prohibited by this Indenture. If the aggregate principal amount of Notes and the amount such other Indebtedness of other pari passu Indebtedness equal priority tendered into such Asset Sale Offer exceeds the amount of Excess Proceeds, the Trustee shall select the Notes and such other pari passu Indebtedness of equal priority to be purchased on a pro rata basis. If any Excess Proceeds remain after consummation of an Asset Sale Offer, then the Company or any Restricted Subsidiary thereof may use such remaining Excess Proceeds for any purpose not otherwise prohibited by this Supplemental Indenture. Upon completion of each any Asset Sale Offer, the amount of Excess Proceeds will shall be reset at zero. In the event that the Company shall be required to commence an offer to Holders to purchase Notes pursuant to this Section 4.11, it shall follow the procedures specified in Sections 3.01 through 3.09.
Appears in 4 contracts
Samples: Eighth Supplemental Indenture (Charter Communications, Inc. /Mo/), Seventh Supplemental Indenture (Charter Communications, Inc. /Mo/), Sixth Supplemental Indenture (Charter Communications, Inc. /Mo/)
Limitation on Asset Sales. The Company will not, and will not permit any of its Restricted Subsidiaries to, consummate an Asset Sale unless:
(1) the Company (or the Restricted Subsidiary, as the case may be, ) receives consideration at the time of the Asset Sale at least equal to the Fair Market Value fair market value of the assets or Equity Interests issued or sold or otherwise disposed of;
(2) the fair market value is determined by the Company’s Board of Directors and evidenced by a resolution of the Board of Directors set forth in an Officers’ Certificate delivered to the Trustee; and
(23) at least 8575% of the consideration received in the Asset Sale by the Company or such Restricted Subsidiary is in the form of cashcash or Cash Equivalents. For purposes of this clause (3) of Section 5.104.10 only, each of the following will be deemed to be cashcash or Cash Equivalents:
(1a) any liabilities, as shown on the Company’s or such Restricted Subsidiary’s most recent consolidated balance sheet, of the Company or any Subsidiary (other than contingent liabilities and Indebtedness liabilities that are (x) by their terms subordinated to the Notes or any Note Guarantee, (y) unsecured, or (z) secured by a Lien on the assets or rights that are the subject of the Asset Sale, which Lien is junior in priority to the Liens securing the Notes or any Note Subsidiary Guarantee) that are assumed by the transferee of any such assets pursuant to a customary novation agreement that releases the Company or such Subsidiary from further liability;
(2b) 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 cashcash within 180 days of the receipt thereof, to the extent of the cash received in that conversion; and
(3c) with respect to any stock Asset Sale of oil and natural gas properties where the Company or assets such Restricted Subsidiary retains an interest in such property, the aggregate costs and expenses of the kind referred Company or such Restricted Subsidiary related to in clauses the exploration, development, completion or production of such properties and activities related thereto which the transferee (2or an Affiliate thereof) or (4) of the next paragraph of this covenantagrees to pay. Within 365 360 days after the receipt of any Net Proceeds from an Asset Sale, the Company (or the applicable any such Restricted Subsidiary, as the case may be) Subsidiary may apply such those Net ProceedsProceeds at its option to any combination of the following:
(1I) to repay prepay, repay, redeem or repurchase any Indebtedness and of the Company or a Guarantor (other Obligations under than intercompany Indebtedness, Capital Stock or Indebtedness that is subordinated to the Working Capital Facility and to correspondingly permanently reduce commitments with respect theretoNotes or the Subsidiary Guarantees) or any Indebtedness of a Restricted Subsidiary that is not a Guarantor (other than intercompany Indebtedness);
(2II) to acquire all or substantially all of the properties or assets of, of one or any Capital Stock of, another Permitted more other Persons primarily engaged in the Oil and Gas Business, ifand, after giving effect to any such acquisition for this purpose, a division or line of Capital Stock, the Permitted Business is or becomes (x) business of a Restricted Subsidiary of the Company and (y) Person shall be treated as a Guarantorseparate Person;
(3III) to acquire a majority of the Voting Stock of one or more other Persons primarily engaged in the Oil and Gas Business;
(IV) to make one or more capital expenditures in a Permitted Business (other than Equity Interests, Indebtedness or current assets)expenditures; or
(4V) to acquire other long-term assets (other than Equity Interests or Indebtedness) that are not classified as current assets under GAAP and that are used or useful in a Permitted the Oil and Gas Business. Pending the final application of any Net Proceeds, the Company or any such Restricted Subsidiary may temporarily reduce revolving credit borrowings under the Working Capital Facility or otherwise invest the Net Proceeds in any manner that is not prohibited by this the Indenture. Any Net Proceeds from Asset Sales that are not applied or invested as provided in the second preceding paragraph of this covenant will constitute “Excess Proceeds.” When 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 $5.0 50.0 million, the Company will, within five (5) days thereof, will make an Asset Sale Offer to all Holders of Notes, and to all holders of other senior secured Pari Passu Indebtedness that is pari passu in right of payment and as to security interests with the Notes with respect to the assets that are the subject of such Asset Sale 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 then outstanding, to purchase the maximum principal amount of Notes and such other pari passu Pari Passu Indebtedness that may be purchased out of the Excess Proceeds in accordance with Proceeds, pursuant to the procedures set forth terms in Section 3.09 hereof3.04 hereof and this Section 4.10. The offer price for the Notes in any Asset Sale Offer will be equal to 100% of the aggregate principal amount of the Notes, plus accrued and unpaid interest interest, if any, to the Settlement Date, subject to the right of Holders of record on the relevant record date of purchaseto receive interest due on an Interest Payment Date that is on or prior to the Settlement Date, and will be payable in cash. If any Excess Proceeds remain after consummation of an Asset Sale Offer, the Company may use those Excess Proceeds for any purpose not otherwise prohibited by this the Indenture. If the aggregate principal amount of Notes and the amount of other pari passu Pari Passu Indebtedness tendered into in such Asset Sale Offer exceeds the amount of Excess Proceeds, the Trustee shall will select the Notes and such other pari passu Pari Passu Indebtedness to be purchased on a pro rata basisbasis (with such adjustments as may be deemed appropriate by the Company so that only Notes in denominations of $2,000 or any integral multiple of $1,000 in excess thereof, will be purchased). Upon completion of each Asset Sale Offer, the amount of Excess Proceeds will be reset at zero. The Company will comply with the requirements of Rule 14e-1 under the Exchange Act and any other securities laws and regulations thereunder to the extent those laws and regulations are applicable in connection with each repurchase of Notes pursuant to an Asset Sale Offer. To the extent that the provisions of any securities laws or regulations conflict with the provisions of this Section 4.10, the Company will comply with the applicable securities laws and regulations and will not be deemed to have breached its obligations under such provisions by virtue of such compliance.
Appears in 4 contracts
Samples: Second Supplemental Indenture (Whiting Petroleum Corp), First Supplemental Indenture (Whiting Petroleum Corp), Third Supplemental Indenture (Whiting Petroleum Corp)
Limitation on Asset Sales. (a) The Company will shall not, and will shall not permit any of its Restricted Subsidiaries Subsidiary to, consummate an any Asset Sale Sale, unless:
(1i) no Default shall have occurred and be continuing or would occur as a result of such Asset Sale;
(ii) the consideration received by the Company or the such Restricted Subsidiary, as the case may be, receives consideration at the time of the Asset Sale is at least equal to the Fair Market Value of the assets or Equity Interests issued or sold or otherwise disposed of; and
(2iii) at least 8575% of the consideration received consists of cash, Temporary Cash Investments or Replacement Assets; provided that in the case of an Asset Sale by in which the Company or such Restricted Subsidiary is receives Replacement Assets involving aggregate consideration in excess of US$10.0 million (or the form Dollar Equivalent thereof), the Company shall deliver to the Trustee an opinion as to the fairness to the Company or such Restricted Subsidiary of cashsuch Asset Sale from a financial point of view issued by an accounting, appraisal or investment banking firm of recognized international standing. For purposes of this Section 5.10provision, each of the following will be deemed to be cash:
(1) any liabilities, as shown on the Company’s most recent consolidated balance sheet, of the Company or any Restricted Subsidiary (other than contingent liabilities and Indebtedness liabilities that are (x) by their terms subordinated to the Notes Notes, any Subsidiary Guarantee or any Note Guarantee, (y) unsecured, or (z) secured by a Lien on the assets or rights that are the subject of the Asset Sale, which Lien is junior in priority to the Liens securing the Notes or any Note JV Subsidiary Guarantee) that are assumed by the transferee of any such assets pursuant to a customary assumption, assignment, novation or similar agreement that releases the Company or such Restricted Subsidiary from further liability;; and
(2) any securities, notes or other obligations received by the Company or any such Restricted Subsidiary from such transferee that are contemporaneouslypromptly, subject to ordinary settlement periodsbut in any event within 30 days of closing, converted by the Company or such Restricted Subsidiary into cash, to the extent of the cash received in that conversion; and.
(3b) any stock or assets of the kind referred to in clauses (2) or (4) of the next paragraph of this covenant. Within 365 360 days after the receipt of any Net Cash Proceeds from an Asset Sale, the Company (or the applicable Restricted Subsidiary, as the case may be) may apply such Net ProceedsCash Proceeds to:
(1i) to permanently repay Senior Indebtedness and other Obligations under of the Working Capital Facility and Company or a Subsidiary Guarantor or any Indebtedness of a Restricted Subsidiary that is not a Subsidiary Guarantor (and, if such Senior Indebtedness repaid is revolving credit Indebtedness, to correspondingly reduce permanently reduce commitments with respect thereto;
(2) in each case owing to acquire all a Person other than the Company or substantially all of the assets of, or any Capital Stock of, another Permitted Business, if, after giving effect to any such acquisition of Capital Stock, the Permitted Business is or becomes (x) a Restricted Subsidiary of the Company and (y) a Guarantor;
(3) to make capital expenditures in a Permitted Business (other than Equity Interests, Indebtedness or current assets)Subsidiary; or
(4ii) to acquire other assets Replacement Assets.
(other than Equity Interests or Indebtednessc) that are not classified as current assets under GAAP and that are used or useful in a Permitted Business. Pending the final application of any Net Proceeds, the Company may temporarily reduce borrowings under the Working Capital Facility or otherwise invest the Net Proceeds in any manner that is not prohibited by this Indenture. Any Net Cash Proceeds from Asset Sales that are not applied or invested as provided in the second paragraph clauses (i) and (ii) of this covenant Section 4.13(b) will constitute “Excess Proceeds.” When the aggregate amount of Excess Proceeds exceeds $5.0 millionof less than US$10.0 million (or the Dollar Equivalent thereof) will be carried forward and accumulated. When accumulated Excess Proceeds exceed US$10.0 million (or the Dollar Equivalent thereof), within 10 days thereof, the Company will, within five (5) days thereof, must make an Asset Sale Offer to all Holders Purchase Notes having a principal amount equal to:
(i) accumulated Excess Proceeds, multiplied by
(ii) a fraction (x) the numerator of which is equal to the outstanding principal amount of the Notes and (y) the denominator of which is equal to the outstanding principal amount of the Notes and all holders of other senior secured Indebtedness that is pari passu in right of payment and as to security interests with the Notes with respect to the assets that are the subject of such Asset Sale 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 amount of Notes and such other pari passu Indebtedness that may similarly required to be purchased out of the Excess Proceeds repaid, redeemed or tendered for in accordance connection with the procedures set forth in Section 3.09 hereof. Asset Sale, rounded down to the nearest US$1,000.
(d) The offer price for the Notes in any Asset Sale Offer to Purchase will be equal to 100% of the aggregate principal amount of the Notes, plus accrued and unpaid interest to the date of purchase, and will be payable in cash. .
(e) If any Excess Proceeds remain after consummation of an Asset Sale OfferOffer to Purchase, the Company may use those such Excess Proceeds for any purpose not otherwise prohibited by this Indenture. If the aggregate principal amount of Notes (and the amount of any other pari passu Indebtedness Indebtedness) tendered into (or required to be prepaid or redeemed in connection with) such Asset Sale Offer to Purchase exceeds the amount of Excess Proceeds, the Trustee shall will select the Notes (and such other pari passu Indebtedness) to be purchased on a pro rata basis based on the principal amount of Notes and such other pari passu Indebtedness tendered (or required to be purchased on a pro rata basisprepaid or redeemed). Upon completion of each Asset Sale OfferOffer to Purchase, the amount of Excess Proceeds will be reset at zero.
Appears in 4 contracts
Samples: Indenture (Xinyuan Real Estate Co., Ltd.), Indenture (Xinyuan Real Estate Co., Ltd.), Indenture (Xinyuan Real Estate Co., Ltd.)
Limitation on Asset Sales. The Company will not, and will not permit any of its Restricted Subsidiaries to, consummate an Asset Sale unless:
(1) the Company or the applicable Restricted Subsidiary, as the case may be, Subsidiary receives consideration at the time of the such Asset Sale at least equal to the Fair Market Value fair market value of the assets or Equity Interests issued or that are sold or otherwise disposed of, as reasonably determined in good faith by the Company’s Board of Directors or a senior officer of the Company; and
(2) at least 8575% of the consideration received in the Asset Sale by the Company or such the applicable Restricted Subsidiary from the Asset Sale is in the form of cashcash or Cash Equivalents; provided that in the case of the sale of all of the IMC Salt Business Unit, in the alternative, up to 35% of the consideration received by the Company or the applicable Restricted Subsidiary in the sale may be in the form of Capital Stock of the Person that will hold the IMC Salt Business Unit and Xxxxx following the Asset Sale if the remainder is in the form of cash or Cash Equivalents; provided, further, that the requirement in this clause (2) shall not apply in the case of the sale of all or any part of the IMC Chemicals Business Unit. For the purposes of this Section 5.10clause (2) above, each the amount of the following will be deemed to be cash:
(1) any liabilities, as Indebtedness shown on the Company’s most recent consolidated applicable balance sheet, sheet of the Company or any Subsidiary (the applicable Restricted Subsidiary, other than contingent liabilities and Indebtedness that are (x) is by their its terms subordinated to the Notes or any Note Guarantee, (y) unsecured, or (z) secured by a Lien on the assets or rights that are the subject of the Asset Sale, which Lien is junior in priority to the Liens securing the Notes or any Note Guarantee) that are assumed by the transferee of any such assets pursuant will be deemed to a customary novation agreement that releases be cash. Additionally, the Company or such Subsidiary from further liability;
(2) 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, to the extent of the cash received in that conversion; and
(3) any stock or assets of the kind referred to in clauses (2) or (4) of the next paragraph of this covenant. Within 365 days after the receipt of any Net Proceeds from an Asset Sale, the Company (or the applicable Restricted Subsidiary, as the case may be) may , must apply such the Net ProceedsCash Proceeds from each Asset Sale to:
(1) to repay Indebtedness and other Obligations under the Working Capital Facility and to correspondingly permanently reduce commitments with respect theretoCredit Agreement;
(2) to acquire all or substantially all of the assets of, or any Capital Stock of, another Permitted Business, if, after giving effect to any such acquisition of Capital Stock, the Permitted Business is or becomes repay (xincluding by purchase) a Restricted Subsidiary of the Company and (y) a Guarantorsecured obligations;
(3) to make capital expenditures in repay (including by purchase) any Indebtedness of any Restricted Subsidiary that is not a Permitted Business (other than Equity Interests, Indebtedness or current assets)Guarantor; orand/or
(4) to acquire other make an investment in or expenditures for assets (other than Equity Interests or Indebtednessincluding Capital Stock of any entity) (a) that are not classified as current replace the assets under GAAP and that are were the subject of the Asset Sale or (b) that will be used or useful in a Permitted Business. Pending the final application business of any Net Proceeds, the Company may temporarily reduce borrowings under the Working Capital Facility and its Subsidiaries as existing on May 17, 2001 or otherwise invest the Net Proceeds in any manner that is not prohibited by this Indenturebusinesses reasonably related thereto (“Replacement Assets”). Any Net Cash Proceeds from Asset Sales that are the Company does not applied apply, or invested as provided decides not to apply, in accordance with the second preceding paragraph of this covenant will constitute a “Excess ProceedsNet Proceeds Offer Amount.” The 366th day after an Asset Sale or any earlier date on which the Board of Directors of the Company determines not to apply the Net Cash Proceeds in accordance with the preceding paragraph is a “Net Proceeds Offer Trigger Date.” When the aggregate amount of Excess Net Proceeds Offer Amount is equal to or exceeds $5.0 25.0 million, the Company will, within five (5) days thereof, must make an Asset Sale offer to purchase (the “Net Proceeds Offer”) on a date that is not less than 30 days nor more than 45 days following the applicable Net Proceeds Offer to Trigger Date, from
(a) all Holders and of Notes and
(b) all holders of other senior secured Indebtedness (“Other Indebtedness”) that (x) is pari passu not, by its terms, expressly subordinated in right of payment and as to security interests with the Notes with respect to the assets and (y) contains provisions requiring that are the subject of such Asset Sale containing provisions similar to those set forth in this Indenture with respect to offers an offer to purchase or redeem such Other Indebtedness be made with the proceeds of sales of assets to purchase from the Asset Sale, on a pro rata basis, the maximum principal amount of Notes and such other pari passu Other Indebtedness that may be purchased out of the Excess Proceeds in accordance with the procedures set forth in Section 3.09 hereofNet Proceeds Offer Amount. The offer price for the Notes in any Asset Sale Net Proceeds Offer will be equal to 100% of the aggregate principal amount of the NotesNotes to be purchased, plus any accrued and unpaid interest on such Notes, if any, to the date of purchase. The following events will be deemed to constitute an Asset Sale and the Net Cash Proceeds from such Asset Sale must be applied in accordance with this Section 4.10:
(1) in the event any non-cash consideration received by the Company or any Restricted Subsidiary of the Company in connection with any Asset Sale is converted into or sold or otherwise disposed of for cash (other than interest received with respect to any such non-cash consideration), or
(2) in the event of the transfer of substantially all, but not all, of the assets of the Company and its Restricted Subsidiaries as an entirety to a Person in a transaction permitted under Section 5.01, and as a result thereof the Company is no longer an obligor on the Notes, the successor corporation shall be deemed to have sold the assets of the Company and its Restricted Subsidiaries not so transferred for purposes of this Section 4.10, and shall comply with the provisions of this Section 4.10 with respect to such deemed sale as if it were an Asset Sale. In addition, the fair market value of such assets of the Company or its Restricted Subsidiaries deemed to be sold shall be deemed to be Net Cash Proceeds for purposes of this Section 4.10. Notwithstanding the provisions described in the immediately preceding paragraphs, the Company and its Restricted Subsidiaries may consummate an Asset Sale without complying with such provisions to the extent that (a) at least 75% of the consideration for such Asset Sale constitutes Replacement Assets and (b) such Asset Sale is for fair market value. Any cash consideration that does not constitute Replacement Assets that is received by the Company or any of its Restricted Subsidiaries in connection with any Asset Sale permitted under this paragraph will constitute Net Cash Proceeds and will be payable subject to the provisions described in cashthe preceding paragraphs. If any Excess The Company shall mail a notice of a Net Proceeds remain after consummation Offer by first-class mail, postage prepaid, to the record Holders as shown on the register of an Asset Sale OfferHolders within 30 days following the Net Proceeds Offer Trigger Date, with a copy to the Company may use those Excess Trustee, containing all instructions and materials necessary to enable such Holders to tender Notes pursuant to the Net Proceeds Offer and shall state the following terms:
(1) that the Net Proceeds Offer is being made pursuant to this Section 4.10, that all Notes tendered will be accepted for any purpose not otherwise prohibited by this Indenture. If payment; provided, however, that if the aggregate principal amount of Notes and Other Indebtedness tendered in a Net Proceeds Offer plus accrued interest at the expiration of such offer exceeds the aggregate amount of other pari passu Indebtedness tendered into such Asset Sale Offer exceeds the amount of Excess ProceedsNet Proceeds Offer, the Trustee Company shall select the Notes and such other pari passu Indebtedness to be purchased on a pro rata basis, the Notes and Other Indebtedness to be purchased (with such adjustments as may be deemed appropriate by the Company so that only Notes in denominations of $1,000, as applicable, or multiples thereof shall be purchased) and that the Net Proceeds Offer shall remain open for a period of 20 business days or such longer periods as may be required by law;
(2) the offer price (including the amount of accrued interest) and the Net Proceeds Offer date of payment (“Net Proceeds Offer Payment Date”) (which shall be not less than 30 nor more than 45 days following the applicable Net Proceeds Offer Trigger Date and which shall be at least five business days after the Trustee receives notice thereof from the Company);
(3) that any Note not tendered will continue to accrue interest;
(4) that, unless the Company defaults in making payment therefor, any Note accepted for payment pursuant to the Net Proceeds Offer shall cease to accrue interest after the Net Proceeds Offer Payment Date;
(5) that Holders electing to have a Note purchased pursuant to a Net Proceeds Offer will be required to surrender such Note, with the form entitled “Option of Holder to Elect Purchase” on the reverse of the Note completed, to the Paying Agent at the address specified in the notice prior to the close of business on the business day prior to the Net Proceeds Offer Payment Date;
(6) that Holders will be entitled to withdraw their election if the Paying Agent receives, not later than the second business day prior to the Net Proceeds Offer Payment Date, a telegram, telex, facsimile transmission or letter setting forth the name of such Holder, the principal amount of the Notes such Holder delivered for purchase and a statement that such Holder is withdrawing his election to have such Note purchased; and
(7) that Holders whose Notes are purchased only in part will be issued new Notes in a principal amount equal to the unpurchased portion of the Note surrendered; provided, however, that each Note purchased and each new Note issued shall be in an original principal amount of $1,000 or integral multiples thereof. On or before the Net Proceeds Offer Payment Date, the Company shall (a) accept for payment Notes or portions thereof (in integral multiples of $1,000) validly tendered pursuant to the Net Proceeds Offer, (b) deposit with the Paying Agent in accordance with Section 2.15 U.S. Dollars sufficient to pay the purchase price plus accrued and unpaid interest, if any, of all Notes to be purchased and (c) deliver to the Trustee Notes so accepted together with an Officers’ Certificate stating the Notes or portions thereof being purchased by the Company. Upon completion receipt by the Paying Agent of each Asset Sale the monies specified in clause (b) above and a copy of the Officers’ Certificate specified in clause (c) above, the Paying Agent shall promptly mail to the Holders of Notes so accepted payment in an amount equal to the purchase price plus accrued and unpaid interest, if any, out of the funds deposited with the Paying Agent in accordance with the preceding sentence. The Trustee shall promptly authenticate and mail to such Holders new Notes equal in principal amount to any unpurchased portion of the Notes surrendered. Upon the payment of the purchase price for the Notes accepted for purchase, the Trustee shall return the Notes purchased to the Company for cancellation. Any monies remaining after the purchase of Notes pursuant to a Net Proceeds Offer shall be returned within three business days by the Trustee to the Company except with respect to monies owed as obligations to the Trustee pursuant to Article VII. For purposes of this Section 4.10, the Trustee shall act as the Paying Agent. To the extent the amount of Notes tendered pursuant to any Net Proceeds Offer is less than the amount of Net Cash Proceeds subject to such Net Proceeds Offer, the amount Company may use any remaining portion of Excess such Net Cash Proceeds will not required to fund the repurchase of tendered Notes for general corporate purposes and such Net Proceeds Offer Amount shall be reset at to zero. The Company will comply with the requirements of Rule 14e-1 under the Exchange Act and any other securities laws and regulations thereunder to the extent such laws and regulations are applicable in connection with the repurchase of Notes pursuant to a Net Proceeds Offer. To the extent that the provisions of any securities laws or regulations conflict with the provisions of this Section 4.10, the Company shall comply with the applicable securities laws and regulations and shall not be deemed to have breached its obligations under the provisions of this Section 4.10 by virtue thereof.
Appears in 4 contracts
Samples: Supplemental Indenture (Cargill Fertilizer, LLC), Supplemental Indenture, Supplemental Indenture (Mosaic Co)
Limitation on Asset Sales. The Company will shall not, and will shall not permit any of its Restricted Subsidiaries to, consummate an Asset Sale unless:
(1) the Company or the such Restricted Subsidiary, as the case may be, Subsidiary receives consideration at the time of the such Asset Sale at least equal to the Fair Market Value fair market value of the assets or Equity Interests issued or sold or otherwise disposed of;
(2) such fair market value is determined by the Board of Directors of the Company; and
(23) at least 8575% of the consideration therefor received in the Asset Sale by the Company or such Restricted Subsidiary is in the form of cash, Cash Equivalents or readily marketable securities. For purposes of this Section 5.104.11, each of the following will shall be deemed to be cash:
(1a) any liabilities, liabilities (as shown on the Company’s or such Restricted Subsidiary’s most recent consolidated balance sheet, ) of the Company or any Restricted Subsidiary thereof (other than contingent liabilities and Indebtedness liabilities that are (x) by their terms subordinated to the Notes or any Note Guarantee, (y) unsecured, or (z) secured by a Lien on the assets or rights that are the subject of the Asset Sale, which Lien is junior in priority to the Liens securing the Notes or any Note GuaranteeNotes) 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;
(2b) 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 recipient there- of into cash, Cash Equivalents or readily marketable securities within 180 days after receipt thereof (to the extent of the cash cash, Cash Equivalents or readily marketable securities received in that conversion);
(c) Productive Assets; and
(3d) any stock Designated Noncash Consideration received by the Issuers or assets any Restricted Subsidiary in such Asset Sale having an aggregate fair market value, taken together with all other Designated Noncash Consideration received pursuant to this clause (d) that is at that time outstanding, not to exceed the greater of (i) $1,000.0 million and (ii) 3.0% of Total Assets, with the kind referred fair market value of each item of Designated Noncash Consideration being measured at the time received and without giving effect to subsequent changes in clauses (2) or (4) of the next paragraph of this covenantvalue. Within 365 days after the receipt of any Net Proceeds from an Asset Sale, the Company (or the applicable a Restricted Subsidiary, as the case may be) Subsidiary thereof may apply such Net ProceedsProceeds at its option:
(1) to repay Indebtedness and other Obligations or otherwise retire debt under the Working Capital Facility and to correspondingly permanently reduce commitments with respect thereto;Credit Facilities or any other Indebtedness of the Restricted Subsidiaries of the Company (other than Indebtedness represented solely by a guarantee of a Restricted Subsidiary of the Company); or
(2) to acquire all or substantially all of the assets of, or any Capital Stock of, another Permitted Business, if, after giving effect to invest in Productive Assets; provided that any such acquisition amount of Capital Stock, Net Proceeds which the Permitted Business is Company or becomes (x) a Restricted Subsidiary thereof has committed to invest in Productive Assets within 365 days of the Company and (y) a Guarantor;
(3) to make capital expenditures applicable Asset Sale may be invested in a Permitted Business (other than Equity Interests, Indebtedness or current assets); or
(4) to acquire other assets (other than Equity Interests or Indebtedness) that are not classified as current assets under GAAP and that are used or useful in a Permitted BusinessProductive Assets within two years of such Asset Sale. Pending the final application The amount of any Net Proceeds, the Company may temporarily reduce borrowings under the Working Capital Facility or otherwise invest the Net Proceeds in any manner that is not prohibited by this Indenture. Any Net Proceeds received from Asset Sales that are not applied or invested as provided in the second preceding paragraph of this covenant will shall constitute “Excess Proceeds.” When the aggregate amount of Excess Proceeds exceeds $5.0 250 million, the Company will, within five (5) days thereof, shall make an Asset Sale Offer to all Holders and all holders of other senior secured Indebtedness that is pari passu in right of payment and as to security interests equal priority with the Notes with respect to the assets that are the subject of such Asset Sale containing provisions similar to those set forth in this Indenture with respect to requiring 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 of equal priority that may be purchased out of the Excess Proceeds in accordance with Proceeds, which amount includes the procedures set forth in Section 3.09 hereofentire amount of the Net Proceeds. The offer price for the Notes in any Asset Sale Offer will shall be payable in cash and equal to 100100.0% of the aggregate principal amount of the Notes, subject Notes plus accrued and unpaid interest and Special Interest, if any, to the date of purchase, and will be payable in cash. If any Excess Proceeds remain after consummation of an Asset Sale Offer, the Company may use those Excess Proceeds for any purpose not otherwise prohibited by this Indenture. If the aggregate principal amount of Notes and the amount such other Indebtedness of other pari passu Indebtedness equal priority tendered into such Asset Sale Offer exceeds the amount of Excess Proceeds, the Trustee shall select the Notes (on as nearly a pro rata basis as possible among the Notes subject to DTC procedures) and such other pari passu Indebtedness of equal priority to be purchased on a pro rata basis. If any Excess Proceeds remain after consummation of an Asset Sale Offer, then the Company or any Restricted Subsidiary thereof may use such remaining Excess Proceeds for any purpose not otherwise prohibited by this Supplemental Indenture. Upon completion of each any Asset Sale Offer, the amount of Excess Proceeds will shall be reset at zero. In the event that the Company shall be required to commence an offer to Holders to purchase Notes pursuant to this Section 4.11, it shall follow the procedures specified in Sections 3.09.
Appears in 3 contracts
Samples: Fourth Supplemental Indenture (Charter Communications, Inc. /Mo/), Fifth Supplemental Indenture (Charter Communications, Inc. /Mo/), Third Supplemental Indenture (Charter Communications, Inc. /Mo/)
Limitation on Asset Sales. The Company will shall not, and will shall not permit any of its Restricted Subsidiaries to, consummate an Asset Sale unless:
(1) the Company or the such Restricted Subsidiary, as the case may be, Subsidiary receives consideration at the time of the such Asset Sale at least equal to the Fair Market Value fair market value of the assets or Equity Interests issued or sold or otherwise disposed of;
(2) such fair market value is determined by the Board of Directors of the Company; and
(23) at least 8575.0% of the consideration therefor received in the Asset Sale by the Company or such Restricted Subsidiary is in the form of cash, Cash Equivalents or readily marketable securities. For purposes of this Section 5.104.11, each of the following will shall be deemed to be cash:
(1a) any liabilities, liabilities (as shown on the Company’s or such Restricted Subsidiary’s most recent consolidated balance sheet, ) of the Company or any Restricted Subsidiary thereof (other than contingent liabilities and Indebtedness liabilities that are (x) by their terms subordinated to the Notes or any Note Guarantee, (y) unsecured, or (z) secured by a Lien on the assets or rights that are the subject of the Asset Sale, which Lien is junior in priority to the Liens securing the Notes or any Note GuaranteeNotes) 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;
(2b) 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 recipient thereof into cash, Cash Equivalents or readily marketable securities within 180 days after receipt thereof (to the extent of the cash cash, Cash Equivalents or readily marketable securities received in that conversion);
(c) Productive Assets; and
(3d) any stock Designated Noncash Consideration received by the Issuers or assets any Restricted Subsidiary in such Asset Sale having an aggregate fair market value, taken together with all other Designated Noncash Consideration received pursuant to this clause (d) that is at that time outstanding, not to exceed the greater of $500.0 million and 3.0% of Total Assets, with the kind referred fair market value of each item of Designated Noncash Consideration being measured at the time received and without giving effect to subsequent changes in clauses (2) or (4) of the next paragraph of this covenantvalue. Within 365 days after the receipt of any Net Proceeds from an Asset Sale, the Company (or the applicable a Restricted Subsidiary, as the case may be) Subsidiary thereof may apply such Net ProceedsProceeds at its option:
(1) to repay Indebtedness and other Obligations or otherwise retire debt under the Working Capital Facility and to correspondingly permanently reduce commitments with respect thereto;Credit Facilities or any other Indebtedness of the Restricted Subsidiaries of the Company (other than Indebtedness represented solely by a guarantee of a Restricted Subsidiary of the Company); or
(2) to acquire all or substantially all of the assets of, or any Capital Stock of, another Permitted Business, if, after giving effect to invest in Productive Assets; provided that any such acquisition amount of Capital Stock, Net Proceeds which the Permitted Business is Company or becomes (x) a Restricted Subsidiary thereof has committed to invest in Productive Assets within 365 days of the Company and (y) a Guarantor;
(3) to make capital expenditures applicable Asset Sale may be invested in a Permitted Business (other than Equity Interests, Indebtedness or current assets); or
(4) to acquire other assets (other than Equity Interests or Indebtedness) that are not classified as current assets under GAAP and that are used or useful in a Permitted BusinessProductive Assets within two years of such Asset Sale. Pending the final application The amount of any Net Proceeds, the Company may temporarily reduce borrowings under the Working Capital Facility or otherwise invest the Net Proceeds in any manner that is not prohibited by this Indenture. Any Net Proceeds received from Asset Sales that are not applied or invested as provided in the second preceding paragraph of this covenant will shall constitute “Excess Proceeds.” When the aggregate amount of Excess Proceeds exceeds $5.0 25.0 million, the Company will, within five (5) days thereof, shall make an Asset Sale Offer to all Holders and all holders of other senior secured Indebtedness that is pari passu in right of payment and as to security interests equal priority with the Notes with respect to the assets that are the subject of such Asset Sale containing provisions similar to those set forth in this Indenture with respect to requiring 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 of equal priority that may be purchased out of the Excess Proceeds in accordance with Proceeds, which amount includes the procedures set forth in Section 3.09 hereofentire amount of the Net Proceeds. The offer price for the Notes in any Asset Sale Offer will shall be payable in cash and equal to 100100.0% of the aggregate principal amount of the Notes, subject Notes plus accrued and unpaid interest interest, if any, to the date of purchase, and will be payable in cash. If any Excess Proceeds remain after consummation of an Asset Sale Offer, the Company may use those Excess Proceeds for any purpose not otherwise prohibited by this Indenture. If the aggregate principal amount of Notes and the amount such other Indebtedness of other pari passu Indebtedness equal priority tendered into such Asset Sale Offer exceeds the amount of Excess Proceeds, the Trustee shall select the Notes and such other pari passu Indebtedness of equal priority to be purchased on a pro rata basis. If any Excess Proceeds remain after consummation of an Asset Sale Offer, then the Company or any Restricted Subsidiary thereof may use such remaining Excess Proceeds for any purpose not otherwise prohibited by this Supplemental Indenture. Upon completion of each any Asset Sale Offer, the amount of Excess Proceeds will shall be reset at zero. In the event that the Company shall be required to commence an offer to Holders to purchase Notes pursuant to this Section 4.11, it shall follow the procedures specified in Sections 3.01 through 3.09.
Appears in 3 contracts
Samples: Third Supplemental Indenture (Charter Communications, Inc. /Mo/), Second Supplemental Indenture (Charter Communications, Inc. /Mo/), First Supplemental Indenture (Charter Communications, Inc. /Mo/)
Limitation on Asset Sales. (a) The Company will not, and will not permit any of its Restricted Subsidiaries Subsidiary to, consummate an Asset Sale unless:
: (1i) the Company or the such Restricted Subsidiary, as the case may be, receives consideration at the time of the such Asset Sale at least equal to the Fair Market Value of the Property or assets or Equity Interests issued or sold or otherwise disposed of; and
(2ii) at least 85% of the consideration received in the Asset Sale by the Company or such Restricted Subsidiary is in for such Property or assets consists of cash or Eligible Cash Equivalents; provided that the form amount of cash. For purposes of this Section 5.10, each of the following will be deemed to be cash:
any liabilities (1) any liabilities, as shown on the Company’s 's or such Restricted Subsidiary's most recent consolidated balance sheet, ) of the Company or any Restricted Subsidiary (other than (x) contingent liabilities and Indebtedness liabilities that are (x) by their terms subordinated subordinate to the Notes or any Note Guarantee, Guarantee thereof by any Restricted Subsidiary and (y) unsecured, or (z) secured by a Lien on the assets or rights that are the subject of the Asset Sale, which Lien is junior in priority to the Liens securing the Notes or any Note Guaranteeunsecured liabilities) that are assumed in writing by the transferee of any such assets pursuant to a customary novation agreement that releases (and for which the Company or such Subsidiary receives a written release from further liability;
the creditors) will be deemed to be cash for the purposes of this clause (2ii); and (iii) any securities, notes or other obligations the Net Cash Proceeds 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 relating to Assets Sales are applied as set forth in clause (A) or (B) in each case to the extent that the Company elects or is so required: (A) to repay or purchase and reduce outstanding Applicable Debt and, in the case of revolving loans and other similar obligations, reduce the commitment thereunder; provided, however, that such repayment and commitment reduction occurs within 270 days following the receipt of such Net Cash Proceeds; or (B) to an investment in Replacement Assets; provided, however, that such investment occurs or the Company or such Restricted Subsidiary enters into cashcontractual commitments to make such investment, subject only to customary conditions (other than the obtaining of financing), on or prior to the 270th day following receipt of such Net Cash Proceeds and Net Cash Proceeds contractually committed are commenced to be so applied within 365 days following the receipt of such Net Cash Proceeds; and provided, further, that, with respect to Asset Sales involving Collateral, such Replacement Assets shall become subject to a Second Priority Lien in favor of the Trustee on behalf of the Holders. Notwithstanding any provision of this Section 4.9, Asset Swaps entered into by the Company or any Restricted Subsidiary in the normal course of business shall not be subject to clause (ii) of the immediately preceding sentence.
(b) Any Net Cash Proceeds from any Asset Sale involving Collateral that are not used to reinvest in Replacement Assets or to repay Applicable Debt in accordance with this Section 4.9 shall constitute "Collateral Excess Proceeds." Any Net Cash Proceeds from any Asset Sale not involving Collateral that are not used to reinvest in Replacement Assets and/or repay Applicable Debt shall constitute "Excess Proceeds."
(c) When the aggregate amount of Collateral Excess Proceeds exceeds $10,000,000, the Issuers shall make an Offer to Purchase, from all Holders on a pro rata basis, Notes in an aggregate principal amount equal to the Collateral Excess Proceeds, at a Purchase Price in cash equal to 100% of the principal amount thereof, together with accrued interest, if any, to the Purchase Date. To the extent that any amount of the cash received in that conversion; and
(3) any stock or assets Collateral Excess Proceeds remains after completion of the kind referred such Offer to in clauses (2) or (4) of the next paragraph of this covenant. Within 365 days after the receipt of any Net Proceeds from an Asset Sale, the Company (or the applicable Restricted Subsidiary, as the case may be) may apply such Net Proceeds:
(1) to repay Indebtedness and other Obligations under the Working Capital Facility and to correspondingly permanently reduce commitments with respect thereto;
(2) to acquire all or substantially all of the assets of, or any Capital Stock of, another Permitted Business, if, after giving effect to any such acquisition of Capital Stock, the Permitted Business is or becomes (x) a Restricted Subsidiary of the Company and (y) a Guarantor;
(3) to make capital expenditures in a Permitted Business (other than Equity Interests, Indebtedness or current assets); or
(4) to acquire other assets (other than Equity Interests or Indebtedness) that are not classified as current assets under GAAP and that are used or useful in a Permitted Business. Pending the final application of any Net ProceedsPurchase, the Company may temporarily reduce borrowings under use such remaining amount for general corporate purposes, and the Working Capital Facility or otherwise invest the Net amount of Collateral Excess Proceeds in any manner that is not prohibited by this Indenture. Any Net Proceeds from Asset Sales that are not applied or invested as provided in the second paragraph of this covenant will constitute “Excess Proceedsshall be reset to zero.”
(d) When the aggregate amount of Excess Proceeds exceeds $5.0 million5,000,000, the Company will, within five (5) days thereof, Issuers shall make an Asset Sale Offer to Purchase, from all Holders and all holders of other senior secured Indebtedness that is pari passu on a pro rata basis, Notes in right of payment and as to security interests with the Notes with respect an aggregate principal amount equal to the assets that are the subject of such Asset Sale containing provisions similar to those set forth Excess Proceeds, at a Purchase Price in this Indenture with respect to offers to purchase or redeem with the proceeds of sales of assets to purchase the maximum amount of Notes and such other pari passu Indebtedness that may be purchased out of the Excess Proceeds in accordance with the procedures set forth in Section 3.09 hereof. The offer price for the Notes in any Asset Sale Offer will be cash equal to 100% of the aggregate principal amount of the Notesthereof, plus together with accrued and unpaid interest interest, if any, to the date Purchase Date; provided, however, that if the Issuers elect (or are required by the terms of purchaseany Applicable Debt), such Offer to Purchase may be made ratably to purchase the Notes and will be payable in cashsuch Applicable Debt. If To the extent that any amount of Excess Proceeds remain remains after consummation completion of an Asset Sale Offersuch Offer to Purchase, the Company may use those Excess Proceeds such remaining amount for any purpose not otherwise prohibited by this Indenture. If the aggregate principal amount of Notes general corporate purposes, and the amount of other pari passu Indebtedness tendered into such Asset Sale Offer exceeds the amount of Excess Proceeds, the Trustee shall select the Notes and such other pari passu Indebtedness to be purchased on a pro rata basis. Upon completion of each Asset Sale Offer, the amount of Excess Proceeds will shall be reset at to zero.
(e) On or before the Purchase Date, the Trustee shall, to the extent lawful, accept for payment, on a pro rata basis or by such other method as the Trustee shall deem fair and appropriate to the extent necessary, Notes or portions thereof or beneficial interests under a Global Note properly tendered pursuant to the Offer to Purchase, deposit with the Paying Agent U.S. legal tender sufficient to pay the purchase price plus accrued interest, if any, on the Notes to be purchased and deliver to the Trustee an Officers' Certificate stating that such Notes or portions thereof were accepted for payment by the Issuers in accordance with the terms of this Section 4.
Appears in 3 contracts
Samples: Indenture (Petro Financial Corp), Indenture (Petro Stopping Centers Holdings Lp), Indenture (Petro Stopping Centers L P)
Limitation on Asset Sales. The Company will not, and will not permit any of its Restricted Subsidiaries to, consummate an Asset Sale unless:
(1) the Company (or the Restricted Subsidiary, as the case may be, ) receives consideration at the time of the Asset Sale at least equal to the Fair Market Value fair market value of the assets or Equity Interests issued or sold or otherwise disposed of;
(2) the fair market value is determined by (a) an executive officer of the Managing General Partner if the value is less than $15.0 million and evidenced by a Officers’ Certificate delivered to the Trustee, or (b) the Managing General Partner’s Board of Directors if the value is $15.0 million or more and evidenced by a resolution of the Board of Directors set forth in an Officers’ Certificate delivered to the Trustee; and
(23) at least 8575% of the aggregate consideration received by the Company and its Restricted Subsidiaries in the Asset Sale by and all other Asset Sales since the Company or such Restricted Subsidiary date of this Indenture is in the form of cash. For purposes of this Section 5.10provision, each of the following will be deemed to be cash:
(1a) any liabilities, as shown on the Company’s or such Restricted Subsidiary’s most recent consolidated balance sheet, of the Company or any Subsidiary (other than contingent liabilities and Indebtedness liabilities that are (x) by their terms subordinated to the Notes or any Note Guarantee, (y) unsecured, or (z) secured by a Lien on the assets or rights that are the subject of the Asset Sale, which Lien is junior in priority to the Liens securing the Notes or any Note Subsidiary Guarantee) that are assumed by the transferee of any such assets pursuant to a customary novation agreement that releases the Company or such Subsidiary from further liability;; and
(2b) any securities, notes or other obligations received by the Company or any such Restricted Subsidiary from such transferee that are contemporaneouslyare, subject to ordinary settlement periodswithin 90 days after the Asset Sale, converted by the Company or such Restricted Subsidiary into cash, to the extent of the cash received in that conversion; and
(3) any stock or assets of the kind referred to in clauses (2) or (4) of the next paragraph of this covenant. Within 365 360 days after the receipt of any Net Proceeds from an Asset Sale, the Company (or the applicable any such Restricted Subsidiary, as the case may be) Subsidiary may apply such those Net ProceedsProceeds at its option to any combination of the following:
(1I) to repay Indebtedness and other Obligations under the Working Capital Facility and to correspondingly permanently reduce commitments with respect theretoSenior Debt;
(2II) to acquire all or substantially all of the properties or assets of, or any Capital Stock of, another of a Person primarily engaged in a Permitted Business, if, after giving effect to any such acquisition of Capital Stock, the Permitted Business is or becomes (x) a Restricted Subsidiary of the Company and (y) a Guarantor;
(3III) to acquire a majority of the Voting Stock of a Person primarily engaged a Permitted Business;
(IV) to make capital expenditures in a Permitted Business (other than Equity Interests, Indebtedness or current assets)expenditures; or
(4V) to acquire other long-term assets (other than Equity Interests or Indebtedness) that are not classified as current assets under GAAP and that are used or useful in a Permitted Business. Pending the final application of any Net Proceeds, the Company or any such Restricted Subsidiary may temporarily reduce borrowings under the Working Capital Facility or otherwise invest the Net Proceeds in any manner that is not prohibited by this Indenture. Any Net Proceeds from Asset Sales that are not applied or invested as provided in the second preceding paragraph of this covenant will constitute “Excess Proceeds.” When 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 $5.0 20.0 million, the Company will, within five (5) days thereof, will make an Asset Sale Offer to all Holders of Notes, and to all holders of other senior secured Pari Passu Indebtedness that is pari passu in right of payment and as to security interests with the Notes with respect to the assets that are the subject of such Asset Sale 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 then outstanding, to purchase the maximum principal amount of Notes and such other pari passu Pari Passu Indebtedness that may be purchased out of the Excess Proceeds in accordance with the procedures set forth in Section 3.09 hereofProceeds. The offer price for the Notes in any Asset Sale Offer will be equal to 100% of the aggregate principal amount of the Notes, plus accrued and unpaid interest interest, if any, to the Settlement Date, subject to the right of Holders of record on the relevant record date of purchaseto receive interest due on an interest payment date that is on or prior to the Settlement Date, and will be payable in cash. If any Excess Proceeds remain after consummation of an Asset Sale Offer, the Company may use those Excess Proceeds for any purpose not otherwise prohibited by this Indenture. If the aggregate principal amount of Notes and the amount of other pari passu Pari Passu Indebtedness tendered into such Asset Sale Offer exceeds the amount of Excess Proceeds, the Trustee shall will select the Notes and such other pari passu Pari Passu Indebtedness to be purchased on a pro rata basis. Upon completion of each Asset Sale Offer, the amount of Excess Proceeds will be reset at zero. The Company will comply with the requirements of Rule 14e-1 under the Exchange Act and any other securities laws and regulations thereunder to the extent those laws and regulations are applicable in connection with each repurchase of Notes pursuant to an Asset Sale Offer. To the extent that the provisions of any securities laws or regulations conflict with the provisions of this Section 4.10, the Company will comply with the applicable securities laws and regulations and will not be deemed to have breached its obligations under such provisions by virtue of such conflict.
Appears in 3 contracts
Samples: Indenture (Inergy L P), Indenture (Inergy L P), Indenture (Inergy L P)
Limitation on Asset Sales. (a) The Company will not, and will not permit any of its Restricted Subsidiaries to, consummate an Asset Sale unless:
(1) the The Company (or the Restricted Subsidiary, as the case may be, ) receives consideration at the time of the such Asset Sale at least equal to the Fair Market Value fair market value of the assets or Equity Interests issued or sold or otherwise disposed of; and
(2) at least 8575% of the consideration therefore received in the Asset Sale by the Company or such Restricted Subsidiary is in the form of cashCash Equivalents or Replacement Assets. For purposes of this Section 5.10clause, each of the following will shall be deemed to be cashCash Equivalents:
(1A) any liabilities, liabilities (as shown on the Company’s or such Restricted Subsidiary’s most recent consolidated balance sheet, ) of the Company or any Restricted Subsidiary (other than contingent liabilities and liabilities, Indebtedness that are (x) is by their its terms subordinated to the Notes or any Note Guarantee, (y) unsecured, Guarantee and liabilities to the extent owed to the Company or (z) secured by a Lien on the assets or rights that are the subject any Affiliate of the Asset Sale, which Lien is junior in priority to the Liens securing the Notes or any Note GuaranteeCompany) that are assumed by the transferee of any such assets pursuant and with respect to a customary novation agreement that releases which the Company or such Subsidiary and its Restricted Subsidiaries are unconditionally released from further liabilityliability in writing or that are otherwise cancelled or terminated in connection with the transaction with such transferee;
(2B) any securities, notes or other obligations or assets 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, cash (to the extent of the cash received in that conversion) within 360 days of the applicable Asset Sale; and
(3C) any stock Designated Non-cash Consideration received by the Company or assets any of its Restricted Subsidiaries in such Asset Sale having an aggregate fair market value, taken together with all other Designated Non-cash Consideration received pursuant to this clause (C) that is at that time outstanding, not to exceed the greater of $20.0 million or 2.0% of Consolidated Cash Flow at the time of the kind referred receipt of such Designated Non-cash Consideration (with the fair market value of each item of Designated Non-cash Consideration being measured at the time received and without giving effect to subsequent changes in clauses value). If at any time any non-cash consideration received by the Company or any Restricted Subsidiary, as the case may be, in connection with any Asset Sale is repaid or converted into or sold or otherwise disposed of for cash (2other than interest received with respect to any such non-cash consideration), then the date of such repayment, conversion or disposition shall be deemed to constitute the date of an Asset Sale hereunder and the Net Proceeds thereof shall be applied in accordance with this Section 4.12.
(b) or (4) of the next paragraph of this covenant. Within 365 days after the receipt of any Net Proceeds from an Asset Sale, the Company (or the applicable Restricted Subsidiary, as the case may be) may apply such Net ProceedsProceeds at its option:
(1) to repay secured Indebtedness and other Obligations or Indebtedness of a non- Guarantor Restricted Subsidiary owed to a Person that is not an Affiliate of the Company and, except in the case of Indebtedness under the Working Capital Facility and Credit Agreement, if the Indebtedness repaid is revolving credit Indebtedness, to correspondingly permanently reduce commitments with respect thereto;
(2) to acquire all prepay, repay or substantially all of the assets of, or repurchase any Capital Stock of, another Permitted Business, if, after giving effect to any such acquisition of Capital Stock, the Permitted Business is or becomes (x) a Restricted Subsidiary Indebtedness of the Company and (y) or any of its Restricted Subsidiaries which is not expressly subordinated to the prior payment in full in cash of all Obligations with respect to the Notes, in the case of the Company, or the Note Guarantee, in the case of a Guarantor;; or
(3) to purchase Replacement Assets or make a capital expenditures expenditure in a Permitted Business (other than Equity Interests, Indebtedness or current assets); or
(4) to acquire other assets (other than Equity Interests or Indebtedness) that are not classified as current assets under GAAP and that are is used or useful in a Permitted Business; provided that, if during the 365 day period following the consummation of an Asset Sale, the Company or a Restricted Subsidiary enters into a definitive binding agreement committing it to apply the Net Proceeds in accordance with the requirements of this clause (3) after such 365 day period, such 365 day period will be extended with respect to the amount of Net Proceeds so committed until such Net Proceeds are required to be applied in accordance with such agreement (but such extension will in no event be for a period longer than 180 days) or, if earlier, the date of termination of such agreement; provided, further, that in the event such binding commitment is later canceled or terminated for any reason before such Net Proceeds are so applied, then such Net Proceeds shall constitute Excess Proceeds unless the Company or such Restricted Subsidiary enters into another binding commitment (a “Second Commitment”) within six months of such cancellation or termination of the prior binding commitment; provided, further, that the Company or such Restricted Subsidiary may only enter into a Second Commitment under the foregoing provision one time with respect to each Asset Sale and to the extent such Second Commitment is later cancelled or terminated for any reason before such Net Proceeds are applied or are not applied within 180 days of such Second Commitment, then such Net Proceeds shall constitute Excess Proceeds. Following the entering into of a binding agreement with respect to an Asset Sale and prior to the consummation thereof, Cash Equivalents (whether or not actual Net Proceeds of such Asset Sale) used for the purposes described in clause (3) that are designated as used in accordance with clause (3), and not previously or subsequently so designated in respect of any other Asset Sale, shall be deemed to be Net Proceeds applied in accordance with clause (3).
(c) Pending the final application of any such Net Proceeds, the Company may temporarily reduce revolving credit borrowings under the Working Capital Facility or otherwise invest the such Net Proceeds in any manner that is not prohibited by this Indenture. .
(d) Any Net Proceeds from Asset Sales that are not applied or invested as provided in the second paragraph clause (1), (2) or (3) of this covenant Section 4.12(b) will constitute “Excess Proceeds.” When Within 30 days after the aggregate amount of Excess Proceeds exceeds $5.0 50.0 million, the Company will, within five (5) days thereof, will make an Asset Sale Offer (using the procedures set forth in Section 3.04) to all Holders Noteholders and all holders of other senior secured Indebtedness that is pari passu in right of payment and as to security interests with the Notes with respect to the assets that are the subject of such Asset Sale or any Note Guarantee 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 assets, to purchase the maximum principal amount of the Notes and such other pari passu Indebtedness that may be purchased out of the Excess Proceeds. The Company and its Restricted Subsidiaries may make an Asset Sale Offer under this section using Net Proceeds prior to the time any such Net Proceeds become Excess Proceeds, in accordance with which case such Net Proceeds shall be deemed to have been applied within the procedures set forth in time frame required by this Section 3.09 hereof4.12. The offer price for the Notes in any Asset Sale Offer will be equal to 100% of the aggregate principal amount of the Notes, Notes and such other pari passu Indebtedness plus accrued and unpaid interest to the date of purchase, and will be payable in cash. If any Excess Proceeds remain after consummation of an Asset Sale Offer, the Company may use those such Excess Proceeds for any purpose not otherwise prohibited by this Indenture. If the aggregate principal amount of the Notes and the amount of such other pari passu Indebtedness tendered into such Asset Sale Offer exceeds the amount of Excess Proceeds, the Trustee Notes and such other pari passu Indebtedness shall select be purchased on a pro rata basis based on the principal amount of the Notes and such other pari passu Indebtedness to be purchased on a pro rata basistendered. Upon completion of each Asset Sale Offer, the amount of Excess Proceeds will shall be reset at zero.
Appears in 3 contracts
Samples: Indenture (SB/RH Holdings, LLC), Indenture (SB/RH Holdings, LLC), Indenture (SB/RH Holdings, LLC)
Limitation on Asset Sales. The Company will not, and will not permit any of its Restricted Subsidiaries to, consummate an Asset Sale unless:
(1) the Company or the one or more of its Restricted SubsidiarySubsidiaries, as the case may be, receives consideration at the time of the such Asset Sale at least equal to the Fair Market Value fair market value of the assets or Equity Interests issued or sold or otherwise disposed of; and;
(2) at least 8575% of the consideration received in the Asset Sale by the Company or such Restricted Subsidiary Subsidiaries, exclusive of indemnities, as the case may be, from such Asset Sale is in cash or Cash Equivalents and is received at the form time of cash. For purposes such disposition; provided that the amount of this Section 5.10, each (a) any liabilities of the following will be deemed to be cash:
(1) Company or any liabilitiessuch Restricted Subsidiary, as shown on the Company’s or such Restricted Subsidiary’s most recent consolidated balance sheetsheet (or in the notes thereto), of the Company or any Subsidiary (other than contingent liabilities and Indebtedness that are (x) by their terms subordinated to the Notes or any Note Guarantee, (y) unsecured, or (z) secured by a Lien on the assets or rights that are the subject of the Asset Sale, which Lien is junior in priority to the Liens securing the Notes or any Note Guarantee) that are assumed by the transferee of any such assets pursuant to a customary novation agreement that releases the Company or such Subsidiary from further liability;
assets, (2b) 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 cashcash or Cash Equivalents within one year of the time of such disposition, to the extent of the cash or Cash Equivalents received and (c) any Designated Non-Cash Consideration received by the Company or any of its Restricted Subsidiaries in such Asset Sale having an aggregate fair market value, taken together with all other Designated Non-Cash Consideration received pursuant to this clause (c) that conversionis at that time outstanding, not to exceed the greater of $225.0 million and 3.0% of the Company’s Total Assets, with the fair market value of each item of Designated Non-Cash Consideration being measured at the time received and without giving effect to subsequent changes in value, will be deemed to be cash for the purposes of this clause (2); and
(3) any stock or assets upon the consummation of the kind referred to in clauses (2) or (4) of the next paragraph of this covenant. Within 365 days after the receipt of any Net Proceeds from an Asset Sale, the Company (applies directly or the applicable through a Restricted Subsidiary, as or causes one or more of its Restricted Subsidiaries to apply, an amount equal to the case may be) may apply Net Cash Proceeds relating to such Net ProceedsAsset Sale within 455 days of receipt thereof, at the option of the Company, either:
(1A) to repay any Secured Indebtedness and other Obligations under the Working Capital Facility and incurrence of which was permitted by this Indenture (and, if the Indebtedness repaid is revolving credit facility Indebtedness, to correspondingly permanently reduce commitments with respect thereto), other than Indebtedness owed to the Company or another Restricted Subsidiary;
(2B) to acquire all or substantially all repay any Indebtedness of the assets of, or any Capital Stock of, another Permitted Business, if, after giving effect to any such acquisition of Capital Stock, the Permitted Business is or becomes (x) a Restricted Subsidiary of the Company and (y) that is not a Guarantor;
(3C) to make capital expenditures in repay or repurchase Pari Passu Indebtedness (provided that the Issuer shall (i) redeem or repurchase at least a Permitted Business pro rata portion of the Securities (other than Equity Interestsbased on the amount so applied to such repayments or repurchases of Pari Passu Indebtedness), Indebtedness by, at the Company’s option, (a) redeeming the Securities as described under Pxxxxxxxx 0, Xxxxxxxxx 6 or current assets); or
Paragraph 7 of the Securities and Section 3.03 or (4b) through privately negotiated transactions or open-market purchases (to acquire other assets the extent such purchases are a price at or above 100% of the principal amount thereof plus the amount of accrued but unpaid interest, if any, thereon) or (other than Equity Interests ii) offer to redeem or repurchase at least a pro rata portion of the Securities (based on the amount so applied to such repayments or repayments or repurchases of such Pari Passu Indebtedness) that are not classified as current assets under GAAP and that are used or useful in a Permitted Business. Pending the final application of any Net Proceeds, the Company may temporarily reduce borrowings under the Working Capital Facility or otherwise invest the Net Proceeds in any manner that is not prohibited by this Indenture. Any Net Proceeds from Asset Sales that are not applied or invested as provided in the second paragraph of this covenant will constitute “Excess Proceeds.” When the aggregate amount of Excess Proceeds exceeds $5.0 million, the Company will, within five making an offer (5) days thereof, make an Asset Sale Offer to all Holders and all holders of other senior secured Indebtedness that is pari passu in right of payment and as to security interests with the Notes with respect to the assets that are the subject of such Asset Sale 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 amount of Notes and such other pari passu Indebtedness that may be purchased out of the Excess Proceeds in accordance with the procedures set forth below for a Net Proceeds Offer) to all Holders to purchase the Securities at a price at or above 100% of the principal amount thereof, plus the amount of accrued but unpaid interest, if any, on the amount of Securities that would otherwise be prepaid);
(D) to reinvest in Section 3.09 hereofProductive Assets (or enter into a binding commitment to reinvest, if such reinvestment is effected within 180 days after the date of such commitment); or
(E) a combination of prepayment, reduction and investment permitted by the foregoing clauses (3)(A) through (3)(D); provided that the 75% limitation referred to above will not apply to any sale, transfer or other disposition of assets in which the cash portion of the consideration received therefor is equal to or greater than what the after tax net proceeds would have been had such transaction complied with the aforementioned 75% limitation. The offer price for On the Notes in any 456th day after an Asset Sale (or, if later, the 181st day after the entry into a binding commitment to reinvest) or such earlier date, if any, as the Company in good faith determines not to apply an amount equal to the Net Cash Proceeds relating to such Asset Sale as set forth in clause (3) of the preceding sentence (each, a “Net Proceeds Offer Trigger Date”), such aggregate amount of Net Cash Proceeds that have not been so applied on or before such Net Proceeds Offer Trigger Date as permitted in clause (3)) of the preceding sentence (each, a “Net Proceeds Offer Amount”) the Issuer will make an offer to repurchase (the “Net Proceeds Offer”) on a date (the “Net Proceeds Offer Payment Date”) not less than 30 nor more than 60 days following the applicable Net Proceeds Offer Trigger Date (or such longer period as may be required by law), from all Holders, that amount of Securities equal to the aggregate amount of Net Cash Proceeds that have not been so applied on or before such Net Proceeds Offer Trigger Date as permitted in clause (3) of the preceding sentence multiplied by a fraction, the numerator of which is the aggregate principal amount of Securities then outstanding and the denominator of which is the sum of the aggregate principal amount of Securities and Pari Passu Indebtedness then outstanding (the “Pro Rata Amount”), at a price equal to 100% of the aggregate principal amount of the NotesSecurities to be repurchased, plus accrued and unpaid interest to the date of purchaserepurchase. Notwithstanding the foregoing, if a Net Proceeds Offer Amount is less than $75.0 million, the application of the Net Cash Proceeds constituting such Net Proceeds Offer Amount to a Net Proceeds Offer may be deferred until such time as such Net Proceeds Offer Amount plus the aggregate amount of all Net Proceeds Offer Amounts arising subsequent to the Net Proceeds Offer Trigger Date relating to such initial Net Proceeds Offer Amount from all Asset Sales by the Company and its Restricted Subsidiaries aggregates at least $75.0 million, at which time the Issuer will be payable in cash. If any Excess apply all Net Cash Proceeds remain after consummation of an Asset Sale constituting all Net Proceeds Offer Amounts that have been so deferred to make a Net Proceeds Offer, the Company first date the aggregate of all such deferred Net Proceeds Offer Amounts is at least $75.0 million being deemed to be a Net Proceeds Offer Trigger Date. To the extent that the aggregate purchase price of Securities tendered pursuant to any Net Proceeds Offer is less than the Pro Rata Amount, the Issuer or any Guarantor may use those Excess Proceeds such amount for any purpose not otherwise prohibited by this Indenture. If Upon completion of any Net Proceeds Offer, the Net Proceeds Offer Amount shall be reset to zero. Notwithstanding the first two paragraphs of this Section 4.16, the Company and its Restricted Subsidiaries will be permitted to consummate an Asset Sale without complying with such paragraphs to the extent
(1) at least 50% of the consideration for such Asset Sale constitutes Productive Assets; and
(2) such Asset Sale is for fair market value; provided that the fair market value of any consideration not constituting Productive Assets received by the Company or any of its Restricted Subsidiaries in connection with any Asset Sale permitted to be consummated under this paragraph will constitute Net Cash Proceeds subject to the provisions of the first two paragraphs of this Section 4.16. In the event of the transfer of substantially all, but not all, of the property and assets of the Company and its Restricted Subsidiaries as an entirety to a Person in a transaction permitted under Section 5.01, the successor corporation will be deemed to have sold the properties and assets of the Company and its Restricted Subsidiaries not so transferred for purposes of this Section 4.16, and will comply with the provisions of this Section 4.16 with respect to such deemed sale as if it were an Asset Sale. In addition, the fair market value of such properties and assets of the Company or its Restricted Subsidiaries deemed to be sold will be deemed to be Net Cash Proceeds for purposes of this Section 4.16. Notice of a Net Proceeds Offer will be sent electronically or mailed, by first class mail, by the Issuer to Holders as shown on the register of Holders at their last registered address not less than 30 days nor more than 60 days before the Net Proceeds Offer Payment Date, with a copy to the Trustee. The notice shall contain instructions and materials necessary to enable such Holders to tender Securities pursuant to the Net Proceeds Offer and shall state the following terms:
(1) that the Net Proceeds Offer is being made pursuant to this Section 4.16, that all Securities tendered will be accepted for payment; provided, however, that if the aggregate principal amount of Notes and Securities tendered in a Net Proceeds Offer plus accrued interest at the expiration of such offer exceeds the aggregate amount of other pari passu Indebtedness tendered into such Asset Sale Offer exceeds the amount of Excess ProceedsNet Proceeds Offer, the Trustee shall will select the Notes and such other pari passu Indebtedness Securities or portions thereof to be purchased repurchased (with such adjustments as may be deemed appropriate by the Issuer so that only Securities in denominations of $2,000 or multiples thereof shall be purchased) among the Holders as follows: (i) if the Securities are listed, in compliance with any applicable requirements of the principal national securities exchange on which the Securities are listed; or (ii) if the Securities are not so listed, on a pro rata basis, by lot or by any other method the trustee considers fair and appropriate. Upon completion A Net Proceeds Offer shall remain open for a period of 20 Business Days or such longer period as may be required by law;
(2) the Net Proceeds Offer Amount (including the amount of accrued interest) and the Net Proceeds Offer Payment Date (which shall be not less than 30 nor more than 60 days following the applicable Net Proceeds Offer Trigger Date (or such longer period as may be required by law) and which shall be at least five Business Days after the Trustee receives notice thereof from the Issuer);
(3) that any Security not tendered will continue to accrue interest;
(4) that, unless the Issuer defaults in making payment therefor, any Security accepted for payment pursuant to the Net Proceeds Offer shall cease to accrue interest after the Net Proceeds Offer Payment Date;
(5) that Holders electing to have a Security purchased pursuant to a Net Proceeds Offer will be required to surrender the Security, with the form entitled “Option of Holder to Elect Purchase” on the reverse of the Security completed, to the Paying Agent at the address specified in the notice prior to the close of business on the Business Day prior to the Net Proceeds Offer Payment Date;
(6) that Holders will be entitled to withdraw their election if the Paying Agent receives, not later than the second Business Day prior to the Net Proceeds Offer Payment Date, electronic mail in pdf format, facsimile transmission or letter setting forth the name of the Holder, the principal amount of the Securities such Holder delivered for purchase and a statement that such Holder is withdrawing his election to have such Securities purchased; and
(7) that Holders whose Securities are purchased only in part will be issued new Securities in a principal amount equal to the unpurchased portion of the Securities surrendered; provided, however, that each Asset Sale Security purchased and each new Security issued shall be subject to the Minimum Denominations Requirement. On or before the Net Proceeds Offer Payment Date, the Issuer shall (i) accept for payment Securities or portions thereof tendered pursuant to the Net Proceeds Offer which are to be purchased in accordance with item (1) above, (ii) deposit with the Paying Agent U.S. Legal Tender sufficient to pay the purchase price plus accrued interest, if any, of all Securities to be purchased and (iii) deliver to the Trustee Securities so accepted together with an Officer’s Certificate of the Issuer stating the Securities or portions thereof being purchased by the Issuer. The Paying Agent shall promptly mail to the Holders of Securities so accepted payment in an amount equal to the purchase price plus accrued interest, if any. For purposes of this Section 4.16, the Trustee shall act as the Paying Agent. Any amounts remaining after the purchase of Securities pursuant to a Net Proceeds Offer promptly shall be returned by the Trustee to the Issuer. If an offer is made to repurchase the Securities pursuant to a Net Proceeds Offer, the amount Company will and will cause its Restricted Subsidiaries to comply with all tender offer rules under state and federal securities laws, including, but not limited to, Section 14(e) under the Exchange Act and Rule 14e-1 thereunder, to the extent applicable to such offer. To the extent that the provisions of Excess Proceeds will any securities laws or regulations conflict with this Section 4.16, the Company and the Issuer shall comply with the applicable securities laws and obligations and shall not be reset at zerodeemed to have breached their obligations hereunder by virtue thereof.
Appears in 3 contracts
Samples: Indenture (Scientific Games Corp), Indenture (Scientific Games Corp), Indenture (Scientific Games Corp)
Limitation on Asset Sales. (A) The Company will not, and will not permit any of its Restricted Subsidiaries to, consummate an Asset Sale unless:
(1) the Company or the applicable Restricted Subsidiary, as the case may be, receives consideration at the time of the such Asset Sale at least equal to the Fair Market Value fair market value of the assets or Equity Interests issued or sold or otherwise disposed of; andof (as determined in good faith by the Company's Board of Directors);
(2) at least 8575% of the consideration received in the Asset Sale by the Company or the Restricted Subsidiary, as the case may be, from such Restricted Subsidiary is Asset Sale shall be in the form of cash. For purposes , Cash Equivalents or Replacement Assets and shall be received at the time of this Section 5.10, each of the following will be deemed to be cashsuch disposition; provided that:
(1a) the amount of any liabilities, liabilities (as shown on the Company’s 's or such Restricted Subsidiary's most recent consolidated balance sheet, ) of the Company or any such Restricted Subsidiary (other than contingent liabilities and Indebtedness that are (x) by their terms subordinated in right of payment to the Notes or any Note Guarantee, (y) unsecured, or (z) secured by Guarantee of a Lien on the assets or rights that are the subject of the Asset Sale, which Lien is junior in priority to the Liens securing the Notes or any Note GuaranteeGuarantor) that are assumed by the transferee of any such assets pursuant to a customary novation agreement that releases the Company or such Subsidiary from further liability;assets, and
(2b) the fair market value of any securities, notes securities or other obligations assets received by the Company or any such Restricted Subsidiary from in exchange for any such transferee assets that are contemporaneouslyconverted into cash within 180 days after such Asset Sale, subject shall be deemed to ordinary settlement periods, converted by the Company or such Restricted Subsidiary into cash, to the extent be cash for purposes of the cash received in that conversionthis provision; and
(3) any stock or assets upon the consummation of the kind referred to in clauses (2) or (4) of the next paragraph of this covenant. Within 365 days after the receipt of any Net Proceeds from an Asset Sale, the Company shall apply, or cause such Restricted Subsidiary to apply, the Net Cash Proceeds relating to such Asset Sale within 365 days of receipt thereof (provided that if the Company or the applicable such Restricted Subsidiary, as the case may be) may , has entered into an agreement in definitive form to so apply such Net Cash Proceeds, the transaction contemplated by such agreement must be consummated within the later of such 365 day period and 120 days from the date of the execution of such agreement) either:
(1a) to repay Indebtedness and other any Obligations under the Working Capital Facility and to correspondingly permanently reduce commitments with respect theretoCredit Agreement or any Guarantor Senior Debt and, in the case of any such Indebtedness under a revolving credit facility, effect a permanent reduction in the availability under such revolving credit facility;
(2) to acquire all or substantially all of the assets of, or any Capital Stock of, another Permitted Business, if, after giving effect to any such acquisition of Capital Stock, the Permitted Business is or becomes (x) a Restricted Subsidiary of the Company and (y) a Guarantor;
(3b) to make capital expenditures an investment in a Permitted Business (other than Equity Interests, Indebtedness or current assets); or
(4) to acquire other assets (other than Equity Interests or Indebtedness) that are not classified as current assets under GAAP properties and that are used or useful in a Permitted Business. Pending the final application of any Net Proceeds, the Company may temporarily reduce borrowings under the Working Capital Facility or otherwise invest the Net Proceeds in any manner that is not prohibited by this Indenture. Any Net Proceeds from Asset Sales that are not applied or invested as provided in the second paragraph of this covenant will constitute “Excess Proceeds.” When the aggregate amount of Excess Proceeds exceeds $5.0 million, the Company will, within five (5) days thereof, make an Asset Sale Offer to all Holders and all holders of other senior secured Indebtedness that is pari passu in right of payment and as to security interests with the Notes with respect to the assets that are replace the properties and assets that were the subject of such Asset Sale containing provisions similar to those set forth or in this Indenture with respect to offers to purchase or redeem with properties and assets (including Capital Stock) that will be used in the proceeds of sales of assets to purchase the maximum amount of Notes and such other pari passu Indebtedness that may be purchased out business of the Excess Proceeds Company and its Restricted Subsidiaries as existing on the Issue Date or in accordance with businesses reasonably related thereto ("Replacement Assets"); and/or
(c) a combination of repayment and investment permitted by the procedures set forth in Section 3.09 hereof. The offer price for the Notes in any Asset Sale Offer will be equal to 100% of the aggregate principal amount of the Notes, plus accrued foregoing clauses (3)(a) and unpaid interest to the date of purchase, and will be payable in cash. If any Excess Proceeds remain after consummation of an Asset Sale Offer, the Company may use those Excess Proceeds for any purpose not otherwise prohibited by this Indenture. If the aggregate principal amount of Notes and the amount of other pari passu Indebtedness tendered into such Asset Sale Offer exceeds the amount of Excess Proceeds, the Trustee shall select the Notes and such other pari passu Indebtedness to be purchased on a pro rata basis. Upon completion of each Asset Sale Offer, the amount of Excess Proceeds will be reset at zero(3)(b).
Appears in 3 contracts
Samples: Indenture (Dole Food Co Inc), Indenture (Dole Food Company Inc), Indenture (Dole Food Co Inc)
Limitation on Asset Sales. The Company will shall not, and will shall not permit any of its Restricted Subsidiaries to, consummate an Asset Sale unless:
(1) the Company or the such Restricted Subsidiary, as the case may be, Subsidiary receives consideration at the time of the such Asset Sale at least equal to the Fair Market Value fair market value of the assets or Equity Interests issued or sold or otherwise disposed of;
(2) such fair market value is determined by the Board of Directors of the Company; and
(23) at least 8575% of the consideration therefor (including by way of relief from, or by any other Person assuming responsibility for, any liability, contingent or otherwise) received in the Asset Sale by the Company or such Restricted Subsidiary is in the form of cash, Cash Equivalents or readily marketable securities. For purposes of this Section 5.104.11, each of the following will shall be deemed to be cash:
(1a) any liabilities, liabilities (as shown on the Company’s or such Restricted Subsidiary’s most recent consolidated balance sheet, ) of the Company or any Restricted Subsidiary thereof (other than contingent liabilities and Indebtedness liabilities that are (x) by their terms subordinated to the Notes or any Note Guarantee, (y) unsecured, or (z) secured by a Lien on the assets or rights that are the subject of the Asset Sale, which Lien is junior in priority to the Liens securing the Notes or any Note GuaranteeNotes) 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;
(2b) 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 recipient thereof into cash, Cash Equivalents or readily marketable securities within 180 days after receipt thereof (to the extent of the cash cash, Cash Equivalents or readily marketable securities received in that conversion);
(c) Productive Assets; and
(3d) any stock Designated Noncash Consideration received by the Issuers or assets any Restricted Subsidiary in such Asset Sale having an aggregate fair market value, taken together with all other Designated Noncash Consideration received pursuant to this clause (d) that is at that time outstanding, not to exceed the greater of (i) $4.5 billion and (ii) 3.0% of Total Assets, with the kind referred fair market value of each item of Designated Noncash Consideration being measured at the time received and without giving effect to subsequent changes in clauses (2) or (4) of the next paragraph of this covenantvalue. Within 365 days after the receipt of any Net Proceeds from an Asset Sale, the Company (or the applicable a Restricted Subsidiary, as the case may be) Subsidiary thereof may apply such Net ProceedsProceeds at its option:
(1) to repay Indebtedness and other Obligations or otherwise retire debt under the Working Capital Facility and to correspondingly permanently reduce commitments with respect thereto;Credit Facilities or any other Indebtedness of the Restricted Subsidiaries of the Company (other than Indebtedness represented solely by a guarantee of a Restricted Subsidiary of the Company); or
(2) to acquire all or substantially all of the assets of, or any Capital Stock of, another Permitted Business, if, after giving effect to invest in Productive Assets; provided that any such acquisition amount of Capital Stock, Net Proceeds which the Permitted Business is Company or becomes (x) a Restricted Subsidiary thereof has committed to invest in Productive Assets within 365 days of the Company and (y) a Guarantor;
(3) to make capital expenditures applicable Asset Sale may be invested in a Permitted Business (other than Equity Interests, Indebtedness or current assets); or
(4) to acquire other assets (other than Equity Interests or Indebtedness) that are not classified as current assets under GAAP and that are used or useful in a Permitted BusinessProductive Assets within two years of such Asset Sale. Pending the final application The amount of any Net Proceeds, the Company may temporarily reduce borrowings under the Working Capital Facility or otherwise invest the Net Proceeds in any manner that is not prohibited by this Indenture. Any Net Proceeds received from Asset Sales that are not applied or invested as provided in the second preceding paragraph of this covenant will shall constitute “Excess Proceeds.” When the aggregate amount of Excess Proceeds exceeds $5.0 250.0 million, the Company will, within five (5) days thereof, shall make an Asset Sale Offer to all Holders and all holders of other senior secured Indebtedness that is pari passu in right of payment and as to security interests equal priority with the Notes with respect to the assets that are the subject of such Asset Sale containing provisions similar to those set forth in this Indenture with respect to requiring 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 of equal priority that may be purchased out of the Excess Proceeds in accordance with Proceeds, which amount includes the procedures set forth in Section 3.09 hereofentire amount of the Net Proceeds. The offer price for the Notes in any Asset Sale Offer will shall be payable in cash and equal to 100100.0% of the aggregate principal amount of the Notes, subject Notes plus accrued and unpaid interest and Special Interest, if any, to the date of purchase, and will be payable in cash. If any Excess Proceeds remain after consummation of an Asset Sale Offer, the Company may use those Excess Proceeds for any purpose not otherwise prohibited by this Indenture. If the aggregate principal amount of Notes and the amount such other Indebtedness of other pari passu Indebtedness equal priority tendered into such Asset Sale Offer exceeds the amount of Excess Proceeds, the Trustee shall select the Notes (on as nearly a pro rata basis as possible among the Notes subject to DTC procedures) and such other pari passu Indebtedness of equal priority to be purchased on a pro rata basis. If any Excess Proceeds remain after consummation of an Asset Sale Offer, then the Company or any Restricted Subsidiary thereof may use such remaining Excess Proceeds for any purpose not otherwise prohibited by this Supplemental Indenture. Upon completion of each any Asset Sale Offer, the amount of Excess Proceeds will shall be reset at zero. In the event that the Company shall be required to commence an offer to Holders to purchase Notes pursuant to this Section 4.11, it shall follow the procedures specified in Section 3.09.
Appears in 3 contracts
Samples: Third Supplemental Indenture (Cco Holdings LLC), Seventh Supplemental Indenture (Charter Communications, Inc. /Mo/), Sixth Supplemental Indenture (Charter Communications, Inc. /Mo/)
Limitation on Asset Sales. (a) The Company will not, and will not permit any of its Restricted Subsidiaries to, consummate an Asset Sale unless:
(1) the Company or the such Restricted Subsidiary, as the case may be, receives consideration at the time of the such Asset Sale at least equal to the Fair Market Value (provided such Fair Market Value shall be determined (i) as of the date of contractually agreeing to such Asset Sale and (ii) in good faith by an Officer of the Company or, if the consideration with respect to such Asset Sale exceeds $30.0 million, the Board of Directors of the Company) of the assets or Equity Interests issued or sold or otherwise disposed of; and
(2) at least 8575% of the aggregate consideration received by the Company or its Restricted Subsidiaries in the Asset Sale by and all other Asset Sales since the Initial Issuance Date is in the form of cash or Cash Equivalents; provided, however, that:
(A) any liabilities (as shown on the Company's or such Restricted Subsidiary's most recent balance sheet) of the Company or such Restricted Subsidiary is in the form of cash. For purposes of this Section 5.10, each of the following will be deemed to be cash:
(1) any liabilities, as shown on the Company’s most recent consolidated balance sheet, of the Company or any Subsidiary (other than contingent liabilities and Indebtedness liabilities that are (x) by their terms subordinated to the Notes or any Note Guarantee, (y) unsecured, or (z) secured by a Lien on the assets or rights that are the subject of the Asset Sale, which Lien is junior in priority to the Liens securing the Notes or any Note Subsidiary Guarantee) that are assumed by the transferee of any such assets pursuant to a customary novation or assumption agreement that releases the Company or such Restricted Subsidiary from further liabilityliability shall be deemed to be cash for purposes of this provision;
(2B) any securities, notes or other obligations Marketable Securities received by the Company or any such Restricted Subsidiary from such transferee that are contemporaneously, subject to ordinary settlement periods, converted within 90 days after such Asset Sale by the Company or such Restricted Subsidiary into cash, cash (to the extent of the cash received in that conversion) shall be deemed to be cash for purposes of this provision;
(C) any securities, notes or other obligations (other than Marketable Securities) received by the Company or such Restricted Subsidiary from such transferee that are converted within 180 days after such Asset Sale by the Company or such Restricted Subsidiary into cash (to the extent of the cash received in that conversion) shall be deemed to be cash for purposes of this provision; and
(3D) any stock Designated Non-cash Consideration received by the Company or assets any of its Restricted Subsidiaries in such Asset Sale having an aggregate Fair Market Value, taken together with all other Designated Non-cash Consideration received pursuant to this clause (d) that is at that time outstanding, not to exceed the kind referred greater of (x) $15.0 million and (y) 1.5% of Consolidated Net Tangible Assets, at the time of receipt of such Designated Non-cash Consideration (with the Fair Market Value of each item of Designated Non-cash Consideration being measured at the time received and without giving effect to subsequent changes in clauses value) shall be deemed cash for the purposes of this provision; provided that in the case of any Asset Sale pursuant to a condemnation, appropriation or similar taking, including by deed in lieu of condemnation, such Asset Sale shall not be required to satisfy the requirements of items (1) and (2) or (4) of the next paragraph of this covenant. Section 4.10(a).
(b) Within 365 days after the receipt of any Net Proceeds from an Asset Sale, the Company (or the applicable any such Restricted Subsidiary, as the case may be) Subsidiary may apply such Net ProceedsProceeds to any combination of the following:
(1) to repay permanently repay, redeem, purchase or cash collateralize the principal of any senior Indebtedness and other Obligations under of the Working Capital Facility and to correspondingly permanently reduce commitments with respect thereto;Company or any Restricted Subsidiary; or
(2) to acquire all or substantially all invest in (including by way of a purchase of assets or stock, merger, consolidation or otherwise) Additional Assets or to make a capital expenditure; provided that the assets ofrequirements of this clause (2) will be deemed to be satisfied if an agreement committing to make the acquisitions, investments or expenditures referred to above is entered into by the Company or any Capital Stock ofof its Restricted Subsidiaries within 365 days after the receipt of such Net Proceeds with the good faith expectation that such Net Proceeds will be applied to satisfy such commitment in accordance with such agreement within 180 days after such 365-day period, another Permitted Businessand if such Net Proceeds are not so applied within such 180-day period, if, after giving effect to any then such acquisition of Capital Stock, the Permitted Business is or becomes Net Proceeds will constitute Excess Proceeds (x) a Restricted Subsidiary of the Company and (y) a Guarantor;as defined below).
(3c) to make capital expenditures in a Permitted Business (other than Equity Interests, Indebtedness or current assets); or
(4) to acquire other assets (other than Equity Interests or Indebtedness) that are not classified as current assets under GAAP and that are used or useful in a Permitted Business. Pending the final application of any such Net Proceeds, the Company or any such Restricted Subsidiary may temporarily reduce outstanding revolving credit borrowings, including borrowings under the Working Capital Facility Revolving Credit Facility, or otherwise invest the such Net Proceeds in any manner that is not prohibited by this the Indenture. .
(d) Any Net Proceeds from Asset Sales that are not applied or invested as provided in the second paragraph of this covenant Section 4.10(b) will be deemed to constitute “Excess Proceeds.” When ”. On the 366th day after the Asset Sale (or, at the Company's option, such earlier date), if the aggregate amount of Excess Proceeds exceeds $5.0 50.0 million, the Company will, within five (5) days thereof, will be required to make an offer (an “Asset Sale Offer Offer”) to all Holders and of Notes and, to the extent required by the terms of other Pari Passu Indebtedness, to all holders of other senior secured Pari Passu Indebtedness that is pari passu in right of payment and as outstanding with similar provisions requiring the Company to security interests with the Notes with respect to the assets that are the subject of such Asset Sale containing provisions similar to those set forth in this Indenture with respect to offers make an offer to purchase or redeem such Pari Passu Indebtedness with the proceeds of sales of assets from any Asset Sale (“Pari Passu Notes”), to purchase the maximum principal amount of Notes and any such other pari passu Indebtedness Pari Passu Notes to which the Asset Sale Offer applies 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 of the Notes and Pari Passu Notes, plus accrued and unpaid interest and Additional Amounts, if any, to the date of purchase, in accordance with the procedures set forth in Section 3.09 hereofthis Indenture or the agreements governing the Pari Passu Notes, as applicable. The offer price for To the Notes in any Asset Sale Offer will be equal to 100% of extent that the aggregate principal amount of the Notes, plus accrued and unpaid interest Notes tendered pursuant to the date of purchase, and will be payable in cash. If any Excess Proceeds remain after consummation of an Asset Sale OfferOffer is less than the amount that the Company is required to repurchase, the Company may use those any remaining Excess Proceeds for any purpose not otherwise prohibited by this the Indenture. If the aggregate principal amount of Notes surrendered by Holders thereof and the amount of other pari passu Indebtedness tendered into such Asset Sale Offer Pari Passu Notes surrendered by holders or lenders, collectively, exceeds the amount of Excess Proceedsthat the Company is required to repurchase, the Trustee shall select the Notes, and the Company shall select such Pari Passu Notes and such other pari passu Indebtedness to be purchased on a pro rata basisbasis on the basis of the aggregate principal amount of tendered Notes and Pari Passu Notes (except that any Notes represented by a Note in global form will be selected by such method as the Depositary or its nominee or successor may require or, where the nominee or successor is the Trustee, a method that most nearly approximates pro rata selection as the Trustee deems fair and appropriate), based on the amounts tendered or required to be redeemed (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 each Asset Sale Offer, the amount of Excess Proceeds will shall be reset at zerozero and any Net Proceeds that were formerly Excess Proceeds may be used for any general corporate purpose (including but not limited to the repurchase, repayment or other acquisition or retirement of any subordinated Indebtedness or Disqualified Stock). If the Purchase Date is on or after an interest payment record date and on or before the related interest payment date, any accrued and unpaid interest and Additional Amount, if any, will be paid to the Person in whose name a Note is registered at the close of business on such record date, and no other interest or Additional Amounts, if any, will be payable to Holders who tender Notes pursuant to the Asset Sale Offer. The Company will comply, to the extent applicable, with the requirements of Section 14(e) of the Exchange Act and any other securities laws or regulations in connection with the repurchase of Notes pursuant to an Asset Sale Offer. To the extent that the provisions of any securities laws or regulations conflict with provisions of this Section 4.10, the Company will comply with the applicable securities laws and regulations and will not be deemed to have breached its obligations under the Indenture by virtue of compliance with such laws and regulations.
Appears in 3 contracts
Samples: Indenture (Era Group Inc.), Indenture (Era Group Inc.), Indenture (Seacor Holdings Inc /New/)
Limitation on Asset Sales. (a) The Company will shall not, and will shall not permit any of its Restricted Subsidiaries to, consummate an Asset Sale unless:
(1i) the The Company (or the Restricted Subsidiary, as the case may be, ) receives consideration at the time of the such Asset Sale at least equal to the Fair Market Value of the assets or Equity Interests issued or sold or otherwise disposed of; and
(2ii) at least 8575% of the aggregate consideration received in the respect of such Asset Sale by the Company or such Restricted Subsidiary Subsidiary, is in the form of cashcash or Cash Equivalents or Additional Assets. For purposes of this Section 5.10provision, each of the following will shall be deemed to be cash:
(1A) any liabilities, as shown on the Company’s most recent consolidated balance sheet, of the Company or any Restricted Subsidiary (other than contingent liabilities liabilities, Subordinated Debt and Indebtedness that are (x) by their terms subordinated to the Notes or any Note Guarantee, (y) unsecured, or (z) secured by a Lien on the assets or rights that are the subject obligations in respect of the Asset Sale, which Lien is junior in priority to the Liens securing the Notes or any Note Guaranteepreferred stock) that are assumed by the transferee of any such assets or Equity Interests pursuant to a customary novation agreement (or other legal documentation with the same effect) that releases includes a full release of the Company or such Restricted Subsidiary from further liability;any and all liability therefor; and
(2B) 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 cashcash within 90 days after the date of the Asset Sale, to the extent of the cash received in that conversion; and.
(3b) Notwithstanding clause (a) of Section 4.12, the 75% limitation referred to above shall be deemed satisfied with respect to any stock Asset Sale in which the cash or assets Cash Equivalents portion of the kind referred consideration received therefrom, determined in accordance with the foregoing provision on an after-tax basis, is equal to in clauses or greater than what the after-tax proceeds would have been had such Asset Sale complied with the aforementioned 75% limitation.
(2c) or (4) of the next paragraph of this covenant. Within 365 days after the receipt of any Net Proceeds from an Asset SaleSale or, if the Company has entered into a binding commitment or commitments with respect to any of the actions described in clauses (ii) or (iii) below, within the later of (x) 365 days after the receipt of any Net Proceeds from an Asset Sale or (y) 120 days after the entering into of such commitment or commitments, the Company (or the applicable Restricted Subsidiary, as the case may be) may apply such Net Proceeds:
(1i) to permanently repay Indebtedness and other Obligations under the Working Capital Facility and to correspondingly permanently reduce commitments with respect theretoSenior Debt;
(2ii) to acquire all or substantially all of the assets of, or any Capital Stock of, another Permitted Business, if, after giving effect to any such acquisition of Capital Stock, the Permitted Business is or becomes (x) a Restricted Subsidiary of the Company and (y) a Guarantor;invest in Additional Assets; or
(3iii) to make capital expenditures in respect of a Permitted Related Business (other than Equity Interests, Indebtedness or current assets); or
(4) to acquire other assets (other than Equity Interests or Indebtedness) that are not classified as current assets under GAAP and that are used or useful in a Permitted Business. Pending the final application of any Net Proceeds, the Company or any of its Restricted Subsidiaries. However, pending application or investment of such Net Proceeds as provided in clauses (i) through (iii), such Net Proceeds may be applied to temporarily reduce borrowings under the Working Capital Facility or otherwise invest the Net Proceeds in revolving credit Indebtedness. An amount equal to any manner that is not prohibited by this Indenture. Any Net Proceeds from Asset Sales that are not applied or invested as provided in the second paragraph of this covenant will clauses (i) through (iii) above shall constitute “Excess Proceeds.” When ”
(d) Within ten Business Days after the aggregate amount of Excess Proceeds exceeds $5.0 20.0 million, the Company will, within five (5) days thereof, shall make an offer (an “Asset Sale Offer Offer”) to all Holders of Notes and all holders of other senior secured Indebtedness that is pari passu in right of payment and as to security interests with the Notes with respect to the assets that are the subject of such Asset Sale 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 assets, to purchase the maximum principal amount of Notes and such other pari passu Indebtedness that may be purchased out of the Excess Proceeds in accordance with the procedures set forth in Section 3.09 hereofProceeds. The offer price for the Notes in any Asset Sale Offer will shall be equal to 100% of the aggregate principal amount of the Notes, plus accrued and unpaid interest interest, if any, to the date of purchase, and will shall be payable in cash. If any Excess Proceeds remain after consummation of an Asset Sale Offer, the Company or any Restricted Subsidiary may use those Excess Proceeds for any purpose not otherwise prohibited by this Indenture. If the aggregate principal amount of Notes and the amount of other pari passu Indebtedness tendered into such Asset Sale Offer exceeds the amount of Excess Proceeds, the Trustee Company shall select use the Excess Proceeds to purchase the Notes and such other pari passu Indebtedness to be purchased on a pro rata basis. Upon completion of each Asset Sale Offer, the amount of Excess Proceeds will shall be reset at zero.
(e) Notwithstanding clauses (a), (b), (c) and (d) of this Section 4.12, the sale, conveyance or other disposition of all or substantially all of the properties or assets of the Company and its Restricted Subsidiaries, taken as a whole, shall be governed by Section 4.11 and/or Section 5.01 and not by the provisions of Section 4.12.
(f) The Company shall comply with the requirements of Rule 14e-1 under the Exchange Act and any other securities laws and regulations thereunder to the extent 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 Sales provisions of this Indenture, or compliance with the Asset Sales provisions of this Indenture would constitute a violation of any such laws or regulations, the Company shall comply with the applicable securities laws and regulations and shall not be deemed to have breached its obligations under the Asset Sales provisions of this Indenture by virtue of such compliance.
(g) In the event that, pursuant to this Section 4.12, the Company is required to commence an Asset Sale Offer, it will follow the procedures specified below:
(i) The Asset Sale Offer shall be made to all Holders and all holders of 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. The Asset Sale Offer will remain open for a period of at least 20 Business Days following its commencement and not more than 30 Business Days, except to the extent that a longer period is required by applicable law (the “Offer Period”). No later than three Business Days after the termination of the Offer Period (the “Purchase Date”), the Company will apply all Excess Proceeds (the “Offer Amount”) to the purchase of Notes and such other pari passu Indebtedness (on a pro rata basis, if applicable) or, if less than the Offer Amount has been tendered, all Notes and other Indebtedness tendered in response to the Asset Sale Offer. Payment for any Notes so purchased will be made in the same manner as interest payments are made.
(ii) If the Purchase Date is on or after an interest record date and on or before the related Interest Payment Date, any accrued and unpaid interest will be paid to the Person in whose name a Note is registered at the close of business on such record date, and no additional interest will be payable to Holders who tender Notes pursuant to the Asset Sale Offer.
(iii) Upon the commencement of an Asset Sale Offer, the Company will send, by first class mail, a notice to the Trustee and each of the Holders. The notice will contain all instructions and materials necessary to enable such Holders to tender Notes pursuant to the Asset Sale Offer. The notice, which will govern the terms of the Asset Sale Offer, will state:
(A) that the Asset Sale Offer is being made pursuant to this Section 4.12 and the length of time the Asset Sale Offer will remain open;
(B) the Offer Amount, the purchase price and the Purchase Date;
(C) that any Note not tendered or accepted for payment will continue to accrue interest;
(D) that, unless the Company defaults in paying the purchase price of the Notes tendered by each Holder and accepted by each Holder and accepted by the Company for purchase, any Note accepted for payment pursuant to the Asset Sale Offer will cease to accrue interest after the Purchase Date;
(E) that Holders electing to have a Note purchased pursuant to an Asset Sale Offer may elect to have Notes purchased in denominations of $2,000 and integral multiples of $1,000 in excess of $2,000 only;
(F) that Holders electing to have any Notes purchased pursuant to any Asset Sale Offer will be required to surrender the Notes, with the form entitled “Option of Holder to Elect Purchase” attached to the Notes completed, or transfer by book-entry transfer, to the Company, a depositary, if appointed by the Company, or a Paying Agent at the address specified in the notice prior to the close of business on the third Business Day preceding the Purchase Date;
(G) that Holders will be entitled to withdraw their election if the Company, the depositary or the Paying Agent, as the case may be, receives, not later than the close of business on the second Business Day preceding the expiration of the Offer Period, a telegram, telex, facsimile transmission or letter setting forth the name of the Holder, the principal amount of Notes delivered for purchase, and a statement that such Holder is withdrawing his election to have such Note purchased;
(H) that, if the aggregate principal amount of Notes and other pari passu Indebtedness surrendered by Holders thereof exceeds the Offer Amount, the Company will select the Notes and other pari passu Indebtedness to be purchased on a pro rata basis based on the principal amount of Notes and such other pari passu Indebtedness surrendered (with such adjustments as may be deemed appropriate by the Company so that only Notes in denominations of $2,000, or an integral multiple of $1,000 in excess of $2,000, will be purchased); and
(I) that Holders whose Notes were purchased only in part will be issued new Notes equal in principal amount to the unpurchased portion of the Notes surrendered (or transferred by book-entry transfer), which unpurchased portion must be equal to $2,000 in principal amount or an integral multiple of $1,000 in excess of $2,000.
(iv) On or before the Purchase Date, the Company will, to the extent lawful, accept for payment, on a pro rata basis to the extent necessary, based on the principal amount of Notes and such other pari passu Indebtedness surrendered, the Offer Amount of Notes or portions thereof tendered pursuant to the Asset Sale Offer, or if less than the Offer Amount has been tendered, all Notes tendered, and will deliver or cause to be delivered to the Trustee the Notes properly accepted together with an Officers’ Certificate stating that such Notes or portions thereof were accepted for payment by the Company in accordance with the terms of this Section 4.12. The Company, the depositary or the Paying Agent, as the case may be, will promptly (but in any case not later than five days after the Purchase Date) mail or deliver to each tendering Holder an amount equal to the purchase price of the Notes tendered by such Holder and accepted by the Company for purchase, and the Company will promptly issue a new Note, and the Trustee, upon written request from the Company, will authenticate and mail or deliver (or cause to be transferred by book entry) such new Note to such Holder, in a principal amount equal to any unpurchased portion of the Note surrendered. Any Note not so accepted shall be promptly mailed or delivered by the Company to the Holder thereof. The Company will publicly announce the results of the Asset Sale Offer on the Purchase Date.
Appears in 3 contracts
Samples: Indenture (Kodiak Oil & Gas Corp), Indenture (Kodiak Oil & Gas Corp), Indenture (Kodiak Oil & Gas Corp)
Limitation on Asset Sales. (a) The Company Issuer will not, and will not permit any of its Restricted Subsidiaries Subsidiary to, consummate an make any Asset Sale unlessunless the following conditions are met:
(1) the Company or the Restricted SubsidiaryAsset Sale is for fair market value, as the case may be, receives consideration at the time determined as of the date of contractually agreeing to such Asset Sale at least equal to in good faith by the Fair Market Value Board of the assets or Equity Interests issued or sold or otherwise disposed of; andManagers;
(2) at least 8575% of the consideration consists of cash received in the Asset Sale by the Company or such Restricted Subsidiary is in the form of cash. For at closing (for purposes of this Section 5.10clause (2), each (a) the assumption by the purchaser of the following will be deemed to be cash:
(1) any liabilities, as shown on the Company’s most recent consolidated balance sheet, of the Company Debt or any Subsidiary other obligations (other than contingent liabilities and Indebtedness that are (xSubordinated Debt) by their terms subordinated to the Notes or any Note Guarantee, (y) unsecured, or (z) secured by a Lien on the assets or rights that are the subject of the Asset Sale, which Lien is junior in priority to the Liens securing the Notes Issuer or any Note Guarantee) that are assumed by the transferee of any such assets a Restricted Subsidiary pursuant to a customary novation agreement that releases the Company or such Subsidiary Issuer and all Restricted Subsidiaries from further liability;
, (2b) any securities, notes instruments or other obligations securities received by the Company Issuer or any such Restricted Subsidiary from in such transferee Asset Sale that are contemporaneouslypromptly, subject to ordinary settlement periodsbut in any event within 270 days of the closing, converted by the Company or such Restricted Subsidiary into Issuer to cash, to the extent of the cash actually so received and (c) any Designated Non-cash Consideration received by the Issuer or any Restricted Subsidiary in such Asset Sale having an aggregate fair market value (as determined in good faith by the Issuer), taken together with all other Designated Non-cash Consideration received pursuant to this clause (2)(c) that conversion; andis at that time outstanding, not to exceed the greater of (x) $110.0 million and (y) 3.0% of Net Consolidated Total Assets at the time of the receipt of such Designated Non-cash Consideration (with the fair market value of each item of Designated Non-cash Consideration being measured at the time received and without giving effect to subsequent changes in value), shall be considered cash received at closing);
(3) any stock or assets of the kind referred to in clauses (2) or (4) of the next paragraph of this covenant. Within 365 days after from the later of the date of consummation of an Asset Sale or the receipt of any Net Cash Proceeds from an Asset Sale, the Company (or the applicable Restricted Subsidiary, as the case Net Cash Proceeds may be) may apply such Net Proceedsbe used:
(A) to permanently repay (1) any secured Debt (other than Funding Indebtedness or Non-Recourse Debt) of the Issuer or any Restricted Subsidiary or (2) solely to repay the extent such Asset Sale included assets of a Restricted Subsidiary that is not a Guarantor, Debt (other than Funding Indebtedness or Non-Recourse Debt) of any Restricted Subsidiary that is not a Guarantor (and other Obligations under in the Working Capital Facility and to correspondingly case of a revolving credit, permanently reduce commitments with the commitment thereunder by such amount) in an amount not to exceed the Net Cash Proceeds in respect theretoof the assets of such Restricted Subsidiary that is not a Guarantor, and in each case owing to a Person other than the Issuer or any Restricted Subsidiary;
(2B) to permanently reduce obligations under any other Debt of the Issuer that is pari passu with the Notes (other than any Disqualified Stock or Subordinated Obligations) or Debt of a Restricted Subsidiary (other than any Disqualified Stock or Subordinated Obligations of a Guarantor) (in each case other than Debt owed to the Issuer or an Affiliate of the Issuer); provided that the Issuer shall equally and ratably reduce obligations, under the notes as provided under Section 3.01 through open market purchases (to the extent such purchases are at or above 100% of the principal amount thereof) or by making an offer (in accordance with the procedures set forth in Section 3.04 for an Asset Sale Offer) to all Holders to purchase their Notes at 100% of the principal amount thereof, plus the amount of accrued but unpaid interest, if any, on the amount of Notes that would otherwise be prepaid;
(C) to acquire all or substantially all of the assets of, or any Capital Stock of, another of a Permitted Business, if, after giving effect to any such acquisition or a majority of Capital Stock, the Permitted Business is or Voting Stock of another Person that thereupon becomes (x) a Restricted Subsidiary of the Company and (y) a Guarantor;
(3) to make capital expenditures engaged in a Permitted Business (other than Equity Interestsprovided that such Restricted Subsidiary is not a Securitization Entity), Indebtedness or current to make capital expenditures or to otherwise acquire assets); or
(4) to acquire other assets (other than Equity Interests or Indebtedness) , including Financeable Assets and Servicing Advances, that are not classified as current assets under GAAP and that are to be used or useful in a Permitted Business. Pending ; provided that this requirement shall be deemed satisfied if a binding commitment or an agreement is entered into within such 365 day period and the final application of any Net Proceeds, the Company may temporarily reduce borrowings under the Working Capital Facility acquisition or otherwise invest the Net Proceeds investment is consummated within 90 days thereafter;
(D) to make an investment in any manner one or more businesses, properties or assets that is not prohibited by this Indenture. Any Net Proceeds from Asset Sales that are not applied replace the properties or invested as provided in the second paragraph of this covenant will constitute “Excess Proceeds.” When the aggregate amount of Excess Proceeds exceeds $5.0 million, the Company will, within five (5) days thereof, make an Asset Sale Offer to all Holders and all holders of other senior secured Indebtedness that is pari passu in right of payment and as to security interests with the Notes with respect to the assets that are the subject of such Asset Sale containing provisions similar to those set forth in provided that this Indenture with respect to offers to purchase requirement shall be deemed satisfied if a binding commitment or redeem with an agreement is entered into within such 365- day period and the proceeds of sales of assets to purchase the maximum amount of Notes and such other pari passu Indebtedness that may be purchased out acquisition or investment is consummated within 90 days thereafter; or
(E) any combination of the Excess foregoing; provided that pending the final application of any such Net Cash Proceeds in accordance with clause (A), (B), (C), (D) or (E) above, the procedures set forth Issuer and its Restricted Subsidiaries may temporarily reduce Debt or otherwise invest such Net Cash Proceeds in Section 3.09 hereofany manner not prohibited by this Indenture; and
(4) The Net Cash Proceeds of an Asset Sale not applied or committed to be applied pursuant to clause (3) within 365 days of the Asset Sale constitute “Excess Proceeds”. Excess Proceeds of less than $40.0 million will be carried forward and accumulated. When accumulated Excess Proceeds equals or exceeds such amount, the Issuer must, within 30 days, make an offer (an “Asset Sale Offer”) to purchase Notes having a principal amount equal to:
(A) accumulated Excess Proceeds; multiplied by
(B) a fraction (x) the numerator of which is equal to the outstanding principal amount of the Notes and (y) the denominator of which is equal to the outstanding principal amount of the Notes and all pari passu Debt similarly required to be repaid, redeemed or tendered for in connection with the Asset Sale, rounded down to the nearest $1,000. The offer purchase price for the Notes in any Asset Sale Offer notes will be equal to 100% of the aggregate principal amount of the Notes, plus accrued and unpaid interest to the date of purchase. If the Asset Sale Offer is for less than all of the outstanding notes, and notes in an aggregate principal amount in excess of the purchase amount are tendered and not withdrawn pursuant to the offer, the Issuer will purchase notes having an aggregate principal amount equal to the purchase amount on a pro rata basis, by lot or such other manner in the case of global notes, as may be required by the applicable procedures of DTC; provided that only notes in minimum denominations of $2,000 principal amount or integral multiples of $1,000 in excess thereof will be payable in cashpurchased. If any Excess Proceeds remain after consummation Upon completion of an the Asset Sale Offer, the Company may use those Excess Proceeds will be reset at zero, and any Excess Proceeds remaining after consummation of the Asset Sale Offer may be used for any purpose not otherwise prohibited by this Indenture. If .
(b) Notwithstanding the aggregate principal amount of Notes and foregoing, the amount of other pari passu Indebtedness tendered into such 75% limitation referred to in Section 4.12(a)(2) shall be deemed satisfied with respect to any Asset Sale Offer exceeds in which the amount cash or Cash Equivalents portion of Excess Proceedsthe consideration received therefrom, determined in accordance with the Trustee shall select foregoing provision on an after-tax basis, if the Notes and such other pari passu Indebtedness proceeds before tax would have complied with the 75% limitation referred to be purchased on a pro rata basis. Upon completion of each Asset Sale Offer, the amount of Excess Proceeds will be reset at zeroin Section 4.12(a)(2).
Appears in 2 contracts
Samples: Indenture (Mr. Cooper Group Inc.), Indenture (Home Point Capital Inc.)
Limitation on Asset Sales. The Company will shall not, and will shall not permit any of its Restricted Subsidiaries to, consummate an Asset Sale unless:
(1) the Company (or the Restricted Subsidiary, as the case may be, ) receives consideration at the time of the Asset Sale at least equal to the Fair Market Value of the assets or Equity Interests issued or sold or otherwise disposed of; and
(2) at least 8590% of the consideration received in the Asset Sale by the Company or such Restricted Subsidiary is in the form of cash, Cash Equivalents or Replacement Property. For purposes of this Section 5.10provision, each of the following will be deemed to be cash:
(1i) any liabilities, as shown on the Company’s most recent consolidated balance sheet, sheet of the Company or any Subsidiary (other than contingent liabilities and Indebtedness liabilities that are (x) by their terms subordinated to the Notes or any Note Guarantee, (y) unsecured, or (z) secured by a Lien on the assets or rights that are the subject of the Asset Sale, which Lien is junior in priority to the Liens securing the Notes or any Note Guarantee) that are assumed by the transferee of any such assets pursuant to a customary novation assignment and assumption agreement that releases the Company or such Subsidiary from further liability;
; and (2ii) any securities, notes or other obligations marketable securities 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, cash within 180 days of their receipt to the extent of the cash received in that conversion; and
(3) any stock or assets of the kind referred conversion will be deemed to in clauses (2) or (4) of the next paragraph of this covenantbe cash. Within 365 720 days after the receipt of any Net Cash Proceeds from an Asset Sale, the Company (or the applicable Restricted Subsidiary, as the case may be) may apply such Net ProceedsCash Proceeds at its option:
(1) to repay Indebtedness and other Obligations under the Working Capital Facility and to correspondingly permanently reduce commitments with respect thereto;
(2i) to acquire all or substantially all of the assets of, or any Capital Stock Equity Interests of, another Permitted BusinessPerson or make capital expenditures, if, after giving effect to any such acquisition of Capital Stock, the Permitted Business is or becomes (x) a Restricted Subsidiary of the Company and (y) a Guarantorin compliance with Section 4.17;
(3ii) to make capital expenditures in a Permitted Business (other than Equity Interests, Indebtedness or current assets)acquire Replacement Property; or
(4iii) to acquire other assets (other than Equity Interests or Indebtedness) that are not classified as current assets under GAAP and that are used or useful in a Permitted Business. Pending any combination of the final application of any Net Proceeds, the Company may temporarily reduce borrowings under the Working Capital Facility or otherwise invest the Net Proceeds in any manner that is not prohibited by this Indentureforegoing. Any Net Cash Proceeds from Asset Sales that are not applied or invested as provided in the second preceding paragraph of this covenant Section 4.10 will constitute “Excess Proceeds.” When the aggregate amount of Excess Proceeds exceeds $5.0 10.0 million, the Company will, within five (5) days thereof30 days, make commence an Asset Sale Offer to Purchase to all Holders and all holders of other senior secured Indebtedness that is pari passu in right of payment and as to security interests with the Notes with respect equal to the assets that are the subject of such Asset Sale 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 amount of Notes and such other pari passu Indebtedness that may be purchased out of the Excess Proceeds in accordance with the procedures set forth in Section 3.09 hereofProceeds. The offer price for the Notes in any Asset Sale Offer to Purchase will be equal to 100% of the aggregate principal amount of the Notes, plus accrued and unpaid interest to to, but not including, the date of purchase, and will be payable in cash. If any Excess Proceeds remain after consummation of an Asset Sale OfferOffer to Purchase, the Company may use those Excess Proceeds funds for any purpose not otherwise prohibited by this IndentureIndenture and they will no longer constitute Excess Proceeds. If the aggregate principal amount of Notes and the amount of other pari passu Indebtedness tendered into such Asset Sale Offer exceeds the amount of Excess Proceeds, the Trustee shall will select the Notes and such other pari passu Indebtedness to be purchased on a pro rata basis. Upon completion of each Asset Sale OfferOffer to Purchase, the amount of Excess Proceeds will be reset at zero. Pending the final application of any Net Cash Proceeds pursuant to this Section 4.10, the holder of such Net Cash Proceeds may apply such Net Cash Proceeds temporarily to reduce Debt outstanding under a revolving credit facility or otherwise invest such Net Cash Proceeds in any manner not prohibited hereunder. The Company shall comply with the requirements of Rule 14e-1 under the Exchange Act and any other applicable securities laws and regulations thereunder to the extent those laws and regulations are applicable in connection with each repurchase of Notes pursuant to an Offer to Purchase. To the extent that the provisions of any securities laws or regulations conflict with the Asset Sale provisions of this Indenture, the Company shall comply with the applicable securities laws and regulations and will be deemed to have complied with its obligations under the Asset Sale provisions of this Indenture by virtue of such compliance.
Appears in 2 contracts
Samples: Indenture (Toys R Us Inc), Indenture (Toys R Us Property Co I, LLC)
Limitation on Asset Sales. The Company will not, and will not permit any of its Restricted Subsidiaries to, consummate an Asset Sale unless:
(1) the Company (or the a Restricted Subsidiary, as the case may be, ) receives consideration at the time of the Asset Sale at least equal to the Fair Market Value fair market value of the assets or Equity Interests issued or sold or otherwise disposed of;
(2) the fair market value is determined by (a) an executive officer of the General Partner if the value is less than $20.0 million and evidenced by an Officers’ Certificate delivered to the Holders, or (b) the Company’s Board of Directors if the value is $20.0 million or more and evidenced by a resolution of the Board of Directors set forth in an Officers’ Certificate delivered to the Holders; and
(23) at least 8575% of the aggregate consideration received by the Company and its Restricted Subsidiaries in the Asset Sale by and all other Asset Sales since the Company or such Restricted Subsidiary date of this Indenture is in the form of cash. For purposes of this Section 5.10provision, each of the following will be deemed to be cash:
(1a) any liabilities, as shown on the Company’s or any Restricted Subsidiary’s most recent consolidated balance sheet, of the Company or any such Subsidiary (other than contingent liabilities and Indebtedness liabilities that are (x) by their terms subordinated to the Notes or any Note Guarantee, (y) unsecured, or (z) secured by a Lien on the assets or rights that are the subject of the Asset Sale, which Lien is junior in priority to the Liens securing the Notes or any Note Subsidiary Guarantee) that are assumed by the transferee of any such assets pursuant to a customary novation agreement that releases the Company or such Subsidiary from further liability;; and
(2b) any securities, notes or other obligations received by the Company or any such Restricted Subsidiary from such transferee that are contemporaneouslyare, subject to ordinary settlement periodswithin 90 days after the Asset Sale, converted by the Company or such Restricted Subsidiary into cash, to the extent of the cash received in that conversion; and
(3) any stock or assets of the kind referred to in clauses (2) or (4) of the next paragraph of this covenant. Within 365 360 days after the receipt of any Net Proceeds from an Asset Sale, the Company (or the applicable any Restricted Subsidiary, as the case may be) Subsidiary may apply such those Net ProceedsProceeds at its option to any combination of the following:
(1I) to repay Indebtedness and other Obligations under the Working Capital Facility and to correspondingly permanently reduce commitments with respect theretorepay, redeem, repurchase or otherwise retire Senior Debt, including Notes;
(2II) to acquire all or substantially all of the properties or assets of, or any Capital Stock of, another of a Person primarily engaged in a Permitted Business, if, after giving effect to any such acquisition of Capital Stock, the Permitted Business is or becomes (x) a Restricted Subsidiary of the Company and (y) a Guarantor;
(3III) to acquire a majority of the Voting Stock of a Person primarily engaged a Permitted Business;
(IV) to make capital expenditures in a Permitted Business (other than Equity Interests, Indebtedness or current assets)expenditures; or
(4V) to acquire other long-term assets (other than Equity Interests or Indebtedness) that are not classified as current assets under GAAP and that are used or useful in a Permitted Business. Pending the final application of any Net Proceeds, the Company or any Restricted Subsidiary may temporarily reduce borrowings under the Working Capital Facility or otherwise invest the Net Proceeds in any manner that is not prohibited by this Indenture. Any Net Proceeds from Asset Sales that are not applied or invested as provided in the second preceding paragraph of this covenant will constitute “Excess Proceeds.” When 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 $5.0 20.0 million, the Company will, within five (5) days thereof, will make an Asset Sale Offer to all Holders Holders, and to all holders of other senior secured Pari Passu Indebtedness that is pari passu in right of payment and as to security interests with the Notes with respect to the assets that are the subject of such Asset Sale 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 then outstanding, to purchase the maximum principal amount of Notes and such other pari passu Pari Passu Indebtedness that may be purchased out of the Excess Proceeds in accordance with the procedures set forth in Section 3.09 hereofProceeds. The offer price for the Notes in any Asset Sale Offer will be equal to 100% of the aggregate principal amount of the Notes, plus accrued and unpaid interest interest, if any, to the date of purchaseSettlement Date, and will be payable in cash. If any Excess Proceeds remain after consummation of an Asset Sale Offer, the Company or any Restricted Subsidiary may use those Excess Proceeds for any purpose not otherwise prohibited by this Indenture. If the aggregate principal amount of Notes and the amount of other pari passu Pari Passu Indebtedness tendered into such Asset Sale Offer exceeds the amount of Excess Proceeds, the Trustee shall Issuers will select the Notes and such other pari passu Pari Passu Indebtedness to be purchased on a pro rata basisbasis as set forth in Section 3.09(h). Upon completion of each Asset Sale Offer, the amount of Excess Proceeds will be reset at zero. To the extent that the provisions of any securities laws or regulations conflict with the provisions of this Section 4.10, the Company will comply with the applicable securities laws and regulations and will not be deemed to have breached its obligations under such provisions by virtue of such conflict.
Appears in 2 contracts
Samples: Indenture (Global Partners Lp), Indenture (Global Partners Lp)
Limitation on Asset Sales. (a) The Company will shall not, and will shall not permit any of its Restricted Subsidiaries Subsidiary to, consummate an any Asset Sale Sale, unless:
(1i) no Default shall have occurred and be continuing or would occur as a result of such Asset Sale;
(ii) the consideration received by the Company or the such Restricted Subsidiary, as the case may be, receives consideration at the time of the Asset Sale is at least equal to the Fair Market Value of the assets or Equity Interests issued or sold or otherwise disposed of;
(iii) in the case of an Asset Sale that constitutes an Asset Disposition, the Company could Incur, at the time of and after giving pro forma effect to such Asset Disposition, at least US$1.00 of Indebtedness under the proviso in Section 4.05(a); and
(2iv) at least 8575% of the consideration received consists of cash, Temporary Cash Investments or Replacement Assets; provided that in the case of an Asset Sale by in which the Company or such Restricted Subsidiary is receives Replacement Assets involving aggregate consideration in excess of US$10.0 million (or the form Dollar Equivalent thereof), the Company shall deliver to the Trustee an opinion as to the fairness to the Company or such Restricted Subsidiary of cashsuch Asset Sale from a financial point of view issued by an accounting, appraisal or investment banking firm of recognized international standing. For purposes of this Section 5.10provision, each of the following will be deemed to be cash:
(1) any liabilities, as shown on the Company’s most recent consolidated balance sheet, of the Company or any Restricted Subsidiary (other than contingent liabilities and Indebtedness liabilities that are (x) by their terms subordinated to the Notes Notes, any Subsidiary Guarantee or any Note Guarantee, (y) unsecured, or (z) secured by a Lien on the assets or rights that are the subject of the Asset Sale, which Lien is junior in priority to the Liens securing the Notes or any Note JV Subsidiary Guarantee) that are assumed by the transferee of any such assets pursuant to a customary assumption, assignment, novation or similar agreement that releases the Company or such Restricted Subsidiary from further liability;; and
(2) any securities, notes or other obligations received by the Company or any such Restricted Subsidiary from such transferee that are contemporaneouslypromptly, subject to ordinary settlement periodsbut in any event within 30 days of closing, converted by the Company or such Restricted Subsidiary into cash, to the extent of the cash received in that conversion; and.
(3b) any stock or assets of the kind referred to in clauses (2) or (4) of the next paragraph of this covenant. Within 365 360 days after the receipt of any Net Cash Proceeds from an Asset Sale, the Company (or the applicable Restricted Subsidiary, as the case may be) may apply such Net ProceedsCash Proceeds to:
(1i) to permanently repay Senior Indebtedness and other Obligations under of the Working Capital Facility and Company or a Subsidiary Guarantor or any Indebtedness of a Restricted Subsidiary that is not a Subsidiary Guarantor (and, if such Senior Indebtedness repaid is revolving credit Indebtedness, to correspondingly reduce permanently reduce commitments with respect thereto;
(2) in each case owing to acquire all a Person other than the Company or substantially all of the assets of, or any Capital Stock of, another Permitted Business, if, after giving effect to any such acquisition of Capital Stock, the Permitted Business is or becomes (x) a Restricted Subsidiary of the Company and (y) a Guarantor;
(3) to make capital expenditures in a Permitted Business (other than Equity Interests, Indebtedness or current assets)Subsidiary; or
(4ii) to acquire other assets Replacement Assets.
(other than Equity Interests or Indebtednessc) that are not classified as current assets under GAAP and that are used or useful in a Permitted Business. Pending the final application of any Net Proceeds, the Company may temporarily reduce borrowings under the Working Capital Facility or otherwise invest the Net Proceeds in any manner that is not prohibited by this Indenture. Any Net Cash Proceeds from Asset Sales that are not applied or invested as provided in the second paragraph clauses (i) and (ii) of this covenant Section 4.13(b) will constitute “Excess Proceeds.” When the aggregate amount of Excess Proceeds exceeds $5.0 millionof less than US$10.0 million (or the Dollar Equivalent thereof) will be carried forward and accumulated. When accumulated Excess Proceeds exceed US$10.0 million (or the Dollar Equivalent thereof), within 10 days thereof, the Company will, within five (5) days thereof, must make an Asset Sale Offer to all Holders Purchase Notes having a principal amount equal to:
(i) accumulated Excess Proceeds, multiplied by
(ii) a fraction (x) the numerator of which is equal to the outstanding principal amount of the Notes and (y) the denominator of which is equal to the outstanding principal amount of the Notes and all holders of other senior secured Indebtedness that is pari passu in right of payment and as to security interests with the Notes with respect to the assets that are the subject of such Asset Sale 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 amount of Notes and such other pari passu Indebtedness that may similarly required to be purchased out of the Excess Proceeds repaid, redeemed or tendered for in accordance connection with the procedures set forth in Section 3.09 hereof. Asset Sale, rounded down to the nearest US$1,000.
(d) The offer price for the Notes in any Asset Sale Offer to Purchase will be equal to 100% of the aggregate principal amount of the Notes, plus accrued and unpaid interest to the date of purchase, and will be payable in cash. .
(e) If any Excess Proceeds remain after consummation of an Asset Sale OfferOffer to Purchase, the Company may use those such Excess Proceeds for any purpose not otherwise prohibited by this Indenture. If the aggregate principal amount of Notes (and the amount of any other pari passu Indebtedness Indebtedness) tendered into (or required to be prepaid or redeemed in connection with) such Asset Sale Offer to Purchase exceeds the amount of Excess Proceeds, the Trustee shall will select the Notes (and such other pari passu Indebtedness) to be purchased on a pro rata basis based on the principal amount of Notes and such other pari passu Indebtedness tendered (or required to be purchased on a pro rata basisprepaid or redeemed). Upon completion of each Asset Sale OfferOffer to Purchase, the amount of Excess Proceeds will be reset at zero.
Appears in 2 contracts
Samples: Indenture (Xinyuan Real Estate Co., Ltd.), Indenture (Xinyuan Real Estate Co., Ltd.)
Limitation on Asset Sales. a. The Company will shall not, and will shall not permit any of its Restricted Subsidiaries Subsidiary to, directly or indirectly, consummate an any Asset Sale unless:
(1) i. the Company or the Restricted Subsidiary, as the case may be, Subsidiary receives consideration at the time of the Asset Sale at least equal to the Fair Market Value of the assets or Equity Interests issued or sold or otherwise disposed ofProperty subject to such Asset Sale; and
(2) and ii. at least 8575% of the consideration received paid to the Company or the Restricted Subsidiary in connection with such Asset Sale is in the Asset Sale form of cash, Temporary Cash Investments or other cash equivalents or the assumption by the purchaser of liabilities of the Company or any Restricted Subsidiary (other than liabilities that are by their terms subordinated to the Notes) as a result of which the Company and the Restricted Subsidiaries are no longer obligated with respect to such liabilities; For purposes of this Section 4.07, the following shall be considered cash:
(1) securities or other assets received by the Company or any Restricted Subsidiary from the transferee that are converted by the Company or such Restricted Subsidiary is in into cash within 180 days (to the form of cash. For purposes of this Section 5.10, each extent of the following will be deemed to be cash:cash received in that conversion);
(12) any cash consideration paid to the Company or the Restricted Subsidiary in connection with the Asset Sale that is held in escrow or on deposit to support indemnification, adjustment of purchase price or similar obligations in respect of such Asset Sale;
(3) Productive Assets received by the Company or any Restricted Subsidiary in connection with the Asset Sale;
(4) accounts receivable of the disposed business retained by the Company or a Restricted Subsidiary, as the case may be, following an Asset Sale; provided that such accounts receivable (i) are not past due more than 90 days and (ii) do not have a payment date greater than 120 days from the date of the invoices creating such accounts receivable;
(5) any liabilities, other than Subordinated Obligations, (as shown on the CompanyCompany or the Restricted Subsidiary’s most recent consolidated balance sheet, of sheet or in the Company or any Subsidiary (other than contingent liabilities and Indebtedness that are (x) by their terms subordinated to the Notes or any Note Guarantee, (y) unsecured, or (z) secured by a Lien on the assets or rights that are the subject of the Asset Sale, which Lien is junior in priority to the Liens securing the Notes or any Note Guaranteenotes thereto) that are assumed by the transferee of any such assets pursuant to a customary novation agreement or that releases are otherwise canceled or terminated in connection with the Company or such Subsidiary from further liabilityAsset Sale;
(26) indebtedness, other than Subordinated Obligations, of any Restricted Subsidiary that is no longer a Restricted Subsidiary as a result of such Asset Sale, to the extent that the Company and each other Restricted Subsidiary are released from any Guarantee of payment of such indebtedness in connection with the Asset Sale; and
(7) any securities, notes or other obligations Designated Non-Cash Consideration received by the Company or any such Restricted Subsidiary in such Asset Sale having an aggregate amount for all such Asset Sales that is at any time outstanding not to exceed the greater of $60.0 million and 8.0% of EBITDA at the time of receipt of such Designated Non-Cash Consideration (measured as of the last day of the fiscal quarter most recently ended prior to the date of receipt thereof for which internal financial statements are available) (without giving effect to any write-off or write-down thereof). The requirement set forth in clause (a)(ii) of this Section 4.07 shall also be considered satisfied if the cash received constitutes at least 75% of the consideration received by the Company or the Restricted Subsidiary in connection with such Asset Sale, determined on an after-tax basis.
b. The Net Available Cash (or any portion thereof) from such transferee that are contemporaneouslyAsset Sales may be applied by the Company or a Restricted Subsidiary, subject to ordinary settlement periods, converted by the extent the Company or such Restricted Subsidiary into cash, elects (or is required by the terms of any Debt):
i. to the extent Repay Debt of the cash received in that conversion; and
(3) any stock Company or assets of the kind referred to in clauses (2) or (4) of the next paragraph of this covenant. Within 365 days after the receipt of any Net Proceeds from an Asset Sale, the Company (or the applicable Restricted Subsidiary, as the case may be) may apply such Net Proceeds:
(1) to repay Indebtedness and other Obligations under the Working Capital Facility and to correspondingly permanently reduce commitments with respect thereto;
(2) to acquire all or substantially all of the assets of, or any Capital Stock of, another Permitted Business, if, after giving effect to any such acquisition of Capital Stock, the Permitted Business is or becomes (x) a Restricted Subsidiary (excluding, in any such case, any Debt that is owed to the Company or an Affiliate of the Company) that ranks at least pari passu in right of payment with the notes; or
ii. to acquire Productive Assets or make capital expenditures on property used or useful in the business of the Company and its Restricted Subsidiaries (y) a Guarantor;
(3) to make including by means of an Investment in Productive Assets or capital expenditures in made by a Permitted Business (other than Equity Interests, Indebtedness Restricted Subsidiary with Net Available Cash received by the Company or current assetsanother Restricted Subsidiary); or
(4) to acquire other assets (other than Equity Interests or Indebtedness) that are not classified as current assets under GAAP and that are used or useful in a Permitted Business. Pending the final application of any Net ProceedsAvailable Cash, the Company or any of its Restricted Subsidiaries may temporarily reduce revolving credit borrowings under the Working Capital Facility or otherwise invest the Net Proceeds Available Cash in any manner that is not prohibited by this Indenturehereby. Any Net Proceeds Available Cash from an Asset Sales that are Sale not applied in accordance with the preceding paragraph within 360 days from the date of the receipt of such Net Available Cash or invested as provided in that the second paragraph of this covenant will Company earlier elects to so designate shall constitute “Excess Proceeds.,” provided, that a binding commitment to acquire Productive Assets or make capital expenditures pursuant to clause (b)(ii) of this Section 4.07 shall be treated as a permitted application of the Net Available Cash from the date of such commitment; provided that (i) such reinvestment is consummated within 180 days of the end of the 360-day period referred to in this sentence, and (ii) if such reinvestment is not consummated within the period set forth in subclause (i) or such binding commitment is terminated, the Net Available Cash not so applied will be deemed to be Excess Proceeds. When the aggregate amount of Excess Proceeds not previously subject to a Prepayment Offer (as defined below) exceeds $5.0 million60.0 million (taking into account income earned on those Excess Proceeds, if any), the Company will, within five (5) days thereof, will be required to make an Asset Sale Offer to all Holders and all holders of other senior secured Indebtedness that is pari passu in right of payment and as to security interests with the Notes with respect to the assets that are the subject of such Asset Sale containing provisions similar to those set forth in this Indenture with respect to offers offer to purchase or redeem with (the proceeds of sales of assets to purchase “Prepayment Offer”) the maximum Notes, which offer shall be in the amount of Notes and such other pari passu Indebtedness that may be purchased out of the Allocable Excess Proceeds in accordance with the procedures set forth in Section 3.09 hereof. The offer Proceeds, on a pro-rata basis according to principal amount, at a purchase price for the Notes in any Asset Sale Offer will be equal to 100% of the aggregate principal amount of the Notes(or accreted value) thereof, plus accrued and unpaid interest interest, if any, to the purchase date (subject to the right of purchaseHolders of record on the relevant record date to receive interest due on the relevant interest payment date), in accordance with the procedures (including prorating in the event of oversubscription) set forth in this Indenture. To the extent that any portion of the amount of Net Available Cash remains after compliance with the preceding sentence and will be payable provided that all Holders of Notes have been given the opportunity to tender their Notes for purchase in cash. If any Excess Proceeds remain after consummation of an Asset Sale Offeraccordance with this Indenture, the Company or such Restricted Subsidiary may use those Excess Proceeds the remaining amount for any purpose not otherwise prohibited permitted by this Indenture. If the aggregate principal amount of Notes Indenture and the amount of other pari passu Indebtedness tendered into such Asset Sale Offer exceeds the amount of Excess Proceeds, the Trustee shall select the Notes and such other pari passu Indebtedness to be purchased on a pro rata basis. Upon completion of each Asset Sale Offer, the amount of Excess Proceeds will be reset at to zero.
Appears in 2 contracts
Samples: Indenture (Tempur Sealy International, Inc.), Indenture (Tempur Sealy International, Inc.)
Limitation on Asset Sales. (a) The Company will not, and will not permit any of its Restricted Subsidiaries to, consummate an Asset Sale unless:
(1) the Company or the applicable Restricted Subsidiary, as the case may be, receives consideration at the time of the Asset Sale at least equal to the Fair Market Value of the assets or Equity Interests issued or sold or otherwise disposed of; , and
(2) at least 85% seventy-five percent (75%) of the consideration received in for the Asset Sale assets sold by the Company or such Restricted Subsidiary is in the form of cash. For purposes of this Section 5.10, each of the following will be deemed to be cash:
(1) any liabilities, as shown on the Company’s most recent consolidated balance sheet, of the Company or any Subsidiary (other than contingent liabilities and Indebtedness that are (x) by their terms subordinated to the Notes or any Note Guarantee, (y) unsecured, or (z) secured by a Lien on the assets or rights that are the subject of the Asset Sale, which Lien is junior in priority to the Liens securing the Notes or any Note Guarantee) that are assumed by the transferee of any such assets pursuant to a customary novation agreement that releases the Company or such Subsidiary from further liability;
(2) 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, to the extent of the cash received in that conversion; and
(3) any stock or assets of the kind referred to in clauses (2) or (4) of the next paragraph of this covenant. Within 365 days after the receipt of any Net Proceeds from an Asset Sale, the Company (or the applicable Restricted Subsidiary, as the case may be, in the Asset Sale shall be in the form of cash or Cash Equivalents received at the time of such Asset Sale.
(b) The Company or such Restricted Subsidiary, as the case may be, may apply the Net Cash Proceeds of any such Net ProceedsAsset Sale within 360 days thereof to:
(1) to repay secured Indebtedness and other Obligations Indebtedness under the Working Capital Bank Credit Facility and to correspondingly and, if the Indebtedness repaid is revolving credit Indebtedness, permanently reduce the commitments with respect thereto;thereto without Refinancing, or
(2) purchase:
(i) property, plant or equipment or other long-lived tangible assets to acquire all or substantially all of be used by the assets of, Company or any Capital Stock of, another Restricted Subsidiary in a Permitted Business, if, after giving effect to any such acquisition of Capital Stock, the Permitted Business is or becomes (x) a Restricted Subsidiary of the Company and (y) a Guarantor;or
(3ii) to make capital expenditures Capital Stock of a Person engaged solely in a Permitted Business that will become, upon purchase, a Restricted Subsidiary (collectively, "Replacement Assets") from a Person other than Equity Interests, Indebtedness or current assets); orthe Company and its Restricted Subsidiaries.
(4c) to acquire other assets (other than Equity Interests To the extent all or Indebtedness) that a portion of the Net Cash Proceeds of any Asset Sale are not classified applied within the 360 days of the Asset Sale as current assets under GAAP and that are used described in Section 3.11(b)(1) or useful in a Permitted Business. Pending the final application of any Net Proceeds(2), the Company may temporarily reduce borrowings under the Working Capital Facility or otherwise invest the Net Proceeds in any manner that is not prohibited by this Indenture. Any Net Proceeds from Asset Sales that are not applied or invested as provided in the second paragraph of this covenant will constitute “Excess Proceeds.” When the aggregate amount of Excess Proceeds exceeds $5.0 million, the Company will, within five (5) days thereof, make an offer to purchase Notes (the "Asset Sale Offer Offer"), at a purchase price equal to all Holders and all holders of other senior secured Indebtedness that is pari passu in right of payment and as to security interests with the Notes with respect to the assets that are the subject of such Asset Sale 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 amount of Notes and such other pari passu Indebtedness that may be purchased out one hundred percent (100%) of the Excess Proceeds in accordance with the procedures set forth in Section 3.09 hereof. The offer price for the Notes in any Asset Sale Offer will be equal to 100% of the aggregate principal amount of the NotesNotes to be purchased, plus accrued and unpaid interest thereon, to the date of purchasepurchase (the "Asset Sale Offer Amount"). Pursuant to an Asset Sale Offer, the Company shall purchase from all tendering Holders on a pro rata basis, and, at the Company's option, on a pro rata basis with the holders of any other Indebtedness that is not, by its terms, expressly subordinated in right of payments to the Notes and the terms of which require an offer to purchase such other Indebtedness to be made with the proceeds from the sale of assets ("Pari Passu Debt"), that principal amount (or accreted value in the case of Indebtedness issued with original issue discount) of Notes and Pari Passu Debt to be purchased equal to such unapplied Net Cash Proceeds.
(d) Within 20 days following the 360th day following the date upon which the Asset Sale occurred, the Company must send, by first-class mail, a notice to the record Holders as shown on the Note Register on such 360th day, with a copy to the Trustee, offering to purchase the Notes as described in Section 3.11(c). The Asset Sale Offer shall state, among other things, the purchase date, which must be no earlier than 30 days nor later than 60 days from the date the notice is mailed, other than as may be required by law (the "Asset Sale Offer Payment Date"). Upon receiving an Asset Sale Offer, Holders may elect to tender their Notes in whole or in part in integral multiples of $1,000 in exchange for cash. The Company may, however, defer an Asset Sale Offer until there is an aggregate amount of unapplied Net Cash Proceeds from one or more Asset Sales equal to or in excess of $5.0 million. At that time, the entire amount of unapplied Net Cash Proceeds, and not just the amount in excess of $5.0 million, shall be applied as required pursuant to this covenant. Pending application in accordance with this covenant, Net Cash Proceeds shall be applied to temporarily reduce revolving credit borrowings which can be reborrowed or invested in Cash Equivalents.
(e) On the Asset Sale Offer Payment Date, the Company will, to the extent lawful:
(1) accept for payment all Notes or portions thereof properly tendered pursuant to the Asset Sale Offer;
(2) deposit with the Paying Agent funds in an amount equal to the Asset Sale Offer Amount in respect of all Notes or portions thereof so tendered; and
(3) deliver or cause to be delivered to the Trustee the Notes so accepted together with an Officers' Certificate stating the aggregate principal amount of Notes or portions thereof being purchased by the Company.
(f) To the extent Holders of Notes and holders of other Pari Passu Debt, if any, which are the subject of an Asset Sale Offer properly tender Notes or the other Pari Passu Debt in an aggregate amount exceeding the amount of unapplied Net Cash Proceeds, the Company will purchase the Notes and the other Pari Passu Debt on a pro rata basis (based on amounts tendered). If only a portion of a Note is purchased pursuant to an Asset Sale Offer, a new Note in a principal amount equal to the portion thereof not purchased will be payable issued in cashthe name of the Holder thereof upon cancellation of the original Note (or appropriate adjustments to the amount and beneficial interests in a Global Note will be made, as appropriate). If Notes (or portions thereof) purchased pursuant to an Asset Sale Offer will be cancelled and cannot be reissued.
(g) The Company will comply with the requirements of Rule 14e-1 under the Exchange Act and any Excess Proceeds remain after consummation other applicable securities laws in connection with the purchase of Notes pursuant to an Asset Sale Offer. To the extent that the provisions of any applicable securities laws or regulations conflict with this Section 3.11, the Company shall comply with these laws and regulations and shall not be deemed to have breached its obligations under this Section 3.11 of the Indenture by doing so.
(h) Upon completion of an Asset Sale Offer, the Company may use those Excess Proceeds for any purpose not otherwise prohibited by this Indenture. If the aggregate principal amount of Notes and the amount of other pari passu Indebtedness tendered into such Asset Sale Offer exceeds the amount of Excess Proceeds, the Trustee shall select the Notes and such other pari passu Indebtedness to be purchased on a pro rata basis. Upon completion of each Asset Sale Offer, the amount of Excess Net Cash Proceeds will be reset at zero. Accordingly, to the extent that the aggregate amount of Notes and other Indebtedness tendered pursuant to an Asset Sale Offer is less than the aggregate amount of unapplied Net Cash Proceeds, the Company may use any remaining Net Cash Proceeds for general corporate purposes of the Company and its Restricted Subsidiaries.
(i) In the event of the transfer of substantially all (but not all) of the property and assets of the Company and its Restricted Subsidiaries as an entirety to a Person in a transaction permitted under Section 4.1, the Successor Entity shall be deemed to have sold the properties and assets of the Company and its Restricted Subsidiaries not so transferred for purposes of this covenant, and shall comply with the provisions of this covenant with respect to the deemed sale as if it were an Asset Sale. In addition, the Fair Market Value of properties and assets of the Company or its Restricted Subsidiaries so deemed to be sold shall be deemed to be Net Cash Proceeds for purposes of this covenant.
(j) If at any time any non-cash consideration received by the Company or any Restricted Subsidiary, as the case may be, in connection with any Asset Sale is converted into or sold or otherwise disposed of for cash (other than interest received with respect to any non-cash consideration), the conversion or disposition shall be deemed to constitute an Asset Sale hereunder and the Net Cash Proceeds thereof shall be applied in accordance with this covenant within 360 days of conversion or disposition.
Appears in 2 contracts
Samples: Indenture (Baron Wire & Cable Corp.), Indenture (CCI International, Inc.)
Limitation on Asset Sales. The Company will not, and will not permit any of its Restricted Subsidiaries to, consummate an Asset Sale unless:
(1) the Company (or the a Restricted Subsidiary, as the case may be, ) receives consideration at the time of the Asset Sale at least equal to the Fair Market Value fair market value of the assets or Equity Interests issued or sold or otherwise disposed of;
(2) the fair market value is determined by (a) an executive officer of the General Partner if the value is less than $20.0 million and evidenced by an Officers’ Certificate delivered to the Trustee, or (b) the Company’s Board of Directors if the value is $20.0 million or more and evidenced by a resolution of the Board of Directors set forth in an Officers’ Certificate delivered to the Trustee; and
(23) at least 8575% of the aggregate consideration received by the Company and its Restricted Subsidiaries in the Asset Sale by and all other Asset Sales since the Company or such Restricted Subsidiary date of this Indenture is in the form of cash. For purposes of this Section 5.10provision, each of the following will be deemed to be cash:
(1a) any liabilities, as shown on the Company’s or any Restricted Subsidiary’s most recent consolidated balance sheet, of the Company or any such Subsidiary (other than contingent liabilities and Indebtedness liabilities that are (x) by their terms subordinated to the Notes or any Note Guarantee, (y) unsecured, or (z) secured by a Lien on the assets or rights that are the subject of the Asset Sale, which Lien is junior in priority to the Liens securing the Notes or any Note Subsidiary Guarantee) that are assumed by the transferee of any such assets pursuant to a customary novation agreement that releases the Company or such Subsidiary from further liability;; and
(2b) any securities, notes or other obligations received by the Company or any such Restricted Subsidiary from such transferee that are contemporaneouslyare, subject to ordinary settlement periodswithin 90 days after the Asset Sale, converted by the Company or such Restricted Subsidiary into cash, to the extent of the cash received in that conversion; and
(3) any stock or assets of the kind referred to in clauses (2) or (4) of the next paragraph of this covenant. Within 365 360 days after the receipt of any Net Proceeds from an Asset Sale, the Company (or the applicable any Restricted Subsidiary, as the case may be) Subsidiary may apply such those Net ProceedsProceeds at its option to any combination of the following:
(1I) to repay Indebtedness and other Obligations under the Working Capital Facility and to correspondingly permanently reduce commitments with respect theretorepay, redeem, repurchase or otherwise retire Senior Debt, including Notes;
(2II) to acquire all or substantially all of the properties or assets of, or any Capital Stock of, another of a Person primarily engaged in a Permitted Business, if, after giving effect to any such acquisition of Capital Stock, the Permitted Business is or becomes (x) a Restricted Subsidiary of the Company and (y) a Guarantor;
(3III) to acquire a majority of the Voting Stock of a Person primarily engaged in a Permitted Business;
(IV) to make capital expenditures in a Permitted Business (other than Equity Interests, Indebtedness or current assets)expenditures; or
(4V) to acquire other long-term assets (other than Equity Interests or Indebtedness) that are not classified as current assets under GAAP and that are used or useful in a Permitted Business. Pending the final application of any Net Proceeds, the Company or any Restricted Subsidiary may temporarily reduce borrowings under the Working Capital Facility or otherwise invest the Net Proceeds in any manner that is not prohibited by this Indenture. Any Net Proceeds from Asset Sales that are not applied or invested as provided in the second preceding paragraph of this covenant will constitute “Excess Proceeds.” When 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 $5.0 20.0 million, the Company will, within five (5) days thereof, will make an Asset Sale Offer to all Holders of Notes, and to all holders of other senior secured Pari Passu Indebtedness that is pari passu in right of payment and as to security interests with the Notes with respect to the assets that are the subject of such Asset Sale 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 then outstanding, to purchase the maximum principal amount of Notes and such other pari passu Pari Passu Indebtedness that may be purchased out of the Excess Proceeds in accordance with the procedures set forth in Section 3.09 hereofProceeds. The offer price for the Notes in any Asset Sale Offer will be equal to 100% of the aggregate principal amount of the Notes, plus accrued and unpaid interest interest, if any, to the Settlement Date, subject to the right of Holders on the relevant record date of purchaseto receive interest due on an interest payment date that is on or prior to the Settlement Date, and will be payable in cash. If any Excess Proceeds remain after consummation of an Asset Sale Offer, the Company or any Restricted Subsidiary may use those Excess Proceeds for any purpose not otherwise prohibited by this Indenture. If the aggregate principal amount of Notes and the amount of other pari passu Pari Passu Indebtedness tendered into such Asset Sale Offer exceeds the amount of Excess Proceeds, the Trustee shall will select the Notes and such other pari passu Pari Passu Indebtedness to be purchased on a pro rata basisbasis as set forth in Section 3.09(h) of this Indenture. Upon completion of each Asset Sale Offer, the amount of Excess Proceeds will be reset at zero. The Company will comply with the requirements of Rule 14e-1 under the Exchange Act and any other securities laws and regulations thereunder to the extent those laws and regulations are applicable in connection with each repurchase of Notes pursuant to an Asset Sale Offer. To the extent that the provisions of any securities laws or regulations conflict with the provisions of this Section 4.10, the Company will comply with the applicable securities laws and regulations and will not be deemed to have breached its obligations under the provisions of this Section 4.10 by virtue of such conflict.
Appears in 2 contracts
Samples: Indenture (Global Partners Lp), Indenture (Global Partners Lp)
Limitation on Asset Sales. (a) The Company will not, and will not permit any of its Restricted Subsidiaries Subsidiary to, consummate an any Asset Sale Sales, unless:
(1) no Default shall have occurred and be continuing or would occur as a result of such Asset Sale;
(2) the consideration received by the Company or the such Restricted Subsidiary, as the case may be, receives consideration at the time of the Asset Sale is at least equal to the Fair Market Value of the assets or Equity Interests issued or sold or otherwise disposed of;
(3) in the case of an Asset Sale that constitutes an Asset Disposition, the Company could Incur at least US$1.00 of Indebtedness under Section 4.06(a) after giving pro forma effect to such Asset Disposition; and
(24) at least 8575% of the consideration received consists of cash, Temporary Cash Investments or Replacement Assets; provided that in the case of an Asset Sale by in which the Company or such Restricted Subsidiary receives Replacement Assets (i) the Company delivers to the Trustee an Officer’s Certificate stating that (a) the Company’s chief executive officer or chief financial officer has approved such Asset Sale, (b) such Asset Sale is on fair and reasonable terms on an arm’s length basis, and (c) the Fair Market Value of the Replacement Assets, together with any cash consideration is no less than the Fair Market Value of the assets subject to such Asset Sale, and (ii) with respect to any such Asset Sale involving an aggregate consideration with a Fair Market Value in excess of US$25,000,000 (or the form Dollar Equivalent thereof), the Company shall deliver to the Trustee an opinion as to the fairness to the Company or such Restricted Subsidiary of cashsuch Asset Sale from a financial point of view issued by an Independent Financial Advisor. For purposes of this Section 5.10clause (4), each of the following will be deemed to be cash:
(1i) any liabilities, as shown on the Company’s most recent consolidated balance sheetsheet prepared in accordance with IFRS, of the Company or any Restricted Subsidiary (other than contingent liabilities and Indebtedness liabilities that are (x) by their terms subordinated to the Notes or any Note Guarantee, (y) unsecured, or (z) secured by a Lien on the assets or rights that are the subject of the Asset Sale, which Lien is junior in priority to the Liens securing the Notes or any Note Subsidiary Guarantee) that are actually assumed by the transferee of any such assets pursuant to a customary customary, assumption, assignment, novation or similar agreement that fully and unconditionally releases the Company or such Restricted Subsidiary from further liability;; and
(2ii) 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, to the extent of the cash received in that conversion; and.
(3b) any stock or assets of the kind referred to in clauses (2) or (4) of the next paragraph of this covenant. Within 365 360 days after the receipt of any Net Cash Proceeds from an Asset Sale, the Company (or the applicable Restricted Subsidiary, as the case may be) may apply such Net ProceedsCash Proceeds to:
(1) to permanently repay Senior Indebtedness and other Obligations under of the Working Capital Facility and Company or any Restricted Subsidiary (and, if such Senior Indebtedness repaid is revolving credit Indebtedness, to correspondingly permanently reduce commitments with respect thereto;) in each case owing to a Person other than the Company or a Restricted Subsidiary; or
(2) to acquire all or substantially all make an Investment in Replacement Assets, provided that such Investment occurs within 360 days following the receipt of the assets of, or any Capital Stock of, another Permitted Business, if, after giving effect to any such acquisition of Capital Stock, the Permitted Business is or becomes (x) a Restricted Subsidiary of the Company and (y) a Guarantor;Net Cash Proceeds.
(3c) to make capital expenditures in a Permitted Business (other than Equity Interests, Indebtedness or current assets); or
(4) to acquire other assets (other than Equity Interests or Indebtedness) that are not classified as current assets under GAAP and that are used or useful in a Permitted Business. Pending the final application of any Net ProceedsCash Proceeds from an Asset Sale in excess of US$10,000,000, the Company may temporarily reduce borrowings under the Working Capital Facility or otherwise shall deposit and invest the such Net Cash Proceeds in any manner that is not prohibited by this Indenture. the Mandatory Prepayment Account.
(d) Any Net Cash Proceeds from Asset Sales that are not applied or invested as provided in the second paragraph of this covenant (b) will constitute “Excess Proceeds.” Excess Proceeds of less than US$5,000,000 (or the Dollar Equivalent thereof) will be carried forward and accumulated. When the aggregate amount of Excess Proceeds exceeds $5.0 millionUS$10,000,000 (or the Dollar Equivalent thereof), within 10 days thereof, the Company will, within five (5) days thereof, must make an Asset Sale Offer to Purchase to all Holders and all holders of other senior secured Indebtedness that is pari passu in right of payment and as to security interests with the Notes (and, with respect to Indebtedness of the assets Company, that are ranks equally with, or senior to, the subject of such Asset Sale Notes, containing provisions similar to those set forth in this the Indenture with respect to offers to purchase or redeem with the proceeds of sales of assets assets, to the holders of such Indebtedness, including any Permitted Priority Secured Indebtedness) to purchase the maximum principal amount of Notes (and any such other pari passu Indebtedness Indebtedness) that may be purchased out of the Excess Proceeds in accordance with the procedures set forth in Section 3.09 hereofProceeds. The offer price for the Notes in any Asset Sale Offer to Purchase will be equal to 100% of the aggregate principal amount of the Notes, plus accrued and unpaid interest to the date of purchase, and will be payable in cash. .
(e) If any Excess Proceeds remain after consummation of an Asset Sale OfferOffer to Purchase, the Company may use those Excess Proceeds for any purpose not otherwise prohibited by this the Indenture. If the aggregate principal amount of Notes (and the amount of any other pari passu Indebtedness or senior Indebtedness) tendered into in such Asset Sale Offer to Purchase exceeds the amount of Excess Proceeds, the Trustee shall will select the Notes (and such other pari passu Indebtedness or senior Indebtedness) to be purchased on a pro rata basisbasis or in accordance with applicable Depositary procedures. Upon completion of each Asset Sale OfferOffer to Purchase, the amount of Excess Proceeds will be reset at zero.
(f) Notwithstanding the foregoing, the Company will not, and will not permit any Restricted Subsidiary to, sell, transfer or otherwise dispose of any shares of Capital Stock of Sino-Forest (China) Investments Limited or of any Restricted Subsidiary that owns directly or indirectly any shares of Capital Stock of Sino-Forest (China) Investments Limited.
Appears in 2 contracts
Samples: Indenture (Emerald Plantation Holdings LTD), Indenture
Limitation on Asset Sales. The Company will not, and will not permit any of its Restricted Subsidiaries to, consummate an Asset Sale unless:
(1) the Company (or the Restricted Subsidiary, as the case may be, ) receives consideration at the time of the Asset Sale at least equal to the Fair Market Value of the assets or Equity Capital Interests issued or sold or otherwise disposed of; and;
(2) at least 8575% of the consideration received in the Asset Sale by the Company or such Restricted Subsidiary is in the form of cashcash or Eligible Cash Equivalents. For purposes of this Section 5.10provision, each of the following will be deemed to be cash:
(1a) any liabilities, as shown on the Company’s most recent consolidated balance sheet, sheet of the Company or any Restricted Subsidiary (other than contingent liabilities and Indebtedness liabilities that are (x) by their terms subordinated to the Notes or any Note Guarantee, (y) unsecured, or (z) secured by a Lien on the assets or rights that are the subject of the Asset Sale, which Lien is junior in priority to the Liens securing the Notes or any Note Guarantee) that are assumed by the transferee of any such assets pursuant to a customary novation assignment and assumption agreement that releases the Company or such Restricted Subsidiary from further liability;
(2b) 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, cash within 180 days of their receipt to the extent of the cash received in that conversion; and
(c) any Designated Non-cash Consideration received by the Company or any of its Restricted Subsidiaries in such Asset Sale having an aggregate Fair Market Value, taken together with all other Designated Non-cash Consideration received pursuant to this clause (c) that is at that time outstanding, not to exceed the greater of (x) $20.0 million and (y) 1.0 % of Total Assets, at the time of the receipt of such Designated Non-cash Consideration (with the Fair Market Value of each item of Designated Non-cash Consideration being measured at the time received and without giving effect to subsequent changes in value);
(3) any stock if such Asset Sale involves the disposition of Collateral, the Company or assets such Subsidiary has complied with the provisions of this Indenture and the kind referred to in clauses (2) or Security Documents, including those described under Article X; and
(4) if such Asset Sale involves the disposition of Notes Collateral, the Net Cash Proceeds thereof shall be paid directly by the purchaser of the next paragraph Collateral to the Collateral Agent for deposit into the Collateral Account, and, if any property other than cash or Eligible Cash Equivalents is included in such Net Cash Proceeds, such property shall be made subject to the Lien of this covenantIndenture and the applicable Security Documents. Within 365 360 days after the receipt of any Net Cash Proceeds from an Asset Sale, the Company (or the applicable Restricted Subsidiary, as the case may be) may apply such Net ProceedsCash Proceeds at its option:
(1) to the extent such Net Cash Proceeds constitute proceeds from the sale of ABL Collateral, to permanently repay Indebtedness and other Obligations Debt under the Working Capital Facility and Credit Agreement and, if the Obligation repaid is revolving credit Debt, to correspondingly permanently reduce commitments with respect thereto;
(2) in the case of an Asset Sale by a Restricted Subsidiary that is not a Guarantor, to repay, prepay, defease, redeem, purchase or otherwise retire (and to permanently reduce commitments with respect thereto in the case of revolving borrowings) Debt of such Restricted Subsidiary or any other Restricted Subsidiary that is not a Guarantor;
(3) to permanently reduce obligations under any other Debt of the Company (other than any Redeemable Capital Interests or subordinated Debt) or Debt of a Restricted Subsidiary (other than any Redeemable Capital Interests or guarantor subordinated Debt) (in each case other than Debt owed to the Company or an Affiliate of the Company); provided that the Company shall equally and ratably reduce obligations under the Notes pursuant to Section 3.7 through open market purchases (to the extent such purchases are at or above 100% of the principal amount thereof) or by making an offer (in accordance with the procedures set forth below for an Offer to Purchase) to all holders to purchase their Notes at 100% of the principal amount thereof, plus the amount of accrued but unpaid interest, if any, on the amount of Notes that would otherwise be prepaid;
(4) to acquire all or substantially all of the assets of, or any Capital Stock Interests of, another Permitted Business, if, after giving effect to any such acquisition of Capital StockInterests, the Permitted Business is or becomes (x) a Restricted Subsidiary of the Company and (y) a GuarantorCompany;
(35) to make a capital expenditures expenditure in or that is used or useful in a Permitted Business (other than Equity Interestsor to make expenditures for maintenance, Indebtedness repair or current assets); orimprovement of existing properties and assets in accordance with the provisions of this Indenture;
(46) to acquire other assets (other than Equity Interests or Indebtedness) that are not classified as current assets under GAAP and that are used or useful in a Permitted Business. Pending ; or
(7) any combination of the foregoing: provided that pending the final application of any such Net ProceedsAvailable Cash Proceeds in accordance with clauses (1) through (7) above, the Company and its Restricted Subsidiaries may temporarily reduce borrowings under the Working Capital Facility Debt or otherwise invest the such Net Cash Proceeds in any manner that is not prohibited by this Indenture; provided further that a binding commitment shall be treated as a permitted application of the Net Cash Proceeds from the date of such commitment so long as the Company or such other Restricted Subsidiary enters into such commitment with the good faith expectation that such Net Cash Proceeds will be applied to satisfy such commitment within 360 days of such commitment (an “Acceptable Commitment”), it being understood that if an Acceptable Commitment is later cancelled or terminated for any reason before such Net Cash Proceeds are applied, then all such Net Cash Proceeds not so applied shall constitute Excess Proceeds. Any Subject to the next two succeeding paragraphs, any Net Cash Proceeds from Asset Sales that are not applied or invested as provided in the second preceding paragraph of this covenant Section 4.10 will constitute “Excess Proceeds.” When the aggregate amount of Excess Proceeds exceeds $5.0 20.0 million, within thirty days thereof, the Company will, within five (5) days thereof, will make an Asset Sale Offer to Purchase to all Holders of Notes (including any Permitted Additional Note Obligations), and to all holders of other senior secured Indebtedness that is Debt ranking pari passu in right of payment and as to security interests with the Notes with respect to the assets that are the subject of such Asset Sale containing provisions similar to those set forth in this Indenture with respect to offers assets sales, equal to purchase or redeem with the proceeds of sales of assets to purchase the maximum amount of Notes and such other pari passu Indebtedness that may be purchased out of the Excess Proceeds in accordance with the procedures set forth in Section 3.09 hereofProceeds. The offer price for the Notes in any Asset Sale Offer to Purchase will be equal to 100% of the aggregate principal amount of the Notes, plus accrued and unpaid interest to the date of purchase, and will be payable in cash. If any Excess Proceeds remain after consummation of an Asset Sale OfferOffer to Purchase, the Company may use those Excess Proceeds for any purpose not otherwise prohibited by this Indenture. If the aggregate principal amount of Notes (including any Permitted Additional Note Obligations) and the amount of other pari passu Indebtedness tendered into such Asset Sale Offer to Purchase exceeds the amount of Excess Proceeds, the Trustee shall will select the Notes and such other pari passu Indebtedness (including any Permitted Additional Note Obligations) to be purchased on a pro rata basisbasis among each series. Upon completion of each Asset Sale OfferOffer to Purchase, the amount of Excess Proceeds will be reset at zero. With respect to any Net Cash Proceeds of an Asset Sale that constitutes a sale of Collateral, the Company (or the Restricted Subsidiary that owned the assets, as the case may be) may apply those Net Cash Proceeds to purchase other long-term assets that constitute Collateral and become subject to the first-priority Lien of this Indenture and the Security Documents (subject to no other Liens other than Permitted Collateral Liens, and with respect to Mortgaged Property, Permitted Encumbrances (as defined in Schedule B to the Purchase Agreement)) or otherwise use such proceeds as provided in the second preceding paragraph. Pending the final application of any such Net Cash Proceeds, the Company may temporarily reduce revolving credit borrowings or otherwise invest such Net Cash Proceeds in any manner that is not prohibited by this Indenture. Any Net Cash Proceeds received from a sale of Collateral shall constitute Collateral under the Security Documents and this Indenture. Any Net Cash Proceeds received from a sale of Notes Collateral shall constitute Collateral under the Security Documents and this Indenture and be deposited in the Collateral Account and released therefrom in accordance with applicable provisions of Articles X and XI. Notwithstanding the foregoing, the Company may use up to $75.0 million of the proceeds from the sale of Notes Collateral that is real property in accordance with the provisions of clause (xv) of the second paragraph of Section 4.7. The Company will comply with the requirements of Rule 14e-1 under the Exchange Act and any other applicable securities laws and regulations thereunder to the extent those laws and regulations are applicable in connection with each repurchase of Notes pursuant to an Offer to Purchase. To the extent that the provisions of any securities laws or regulations conflict with the Asset Sale provisions of this Indenture, the Company will comply with the applicable securities laws and regulations and will not be deemed to have breached its obligations under the Asset Sale provisions of this Indenture by virtue of such compliance.
Appears in 2 contracts
Samples: Indenture (Ryerson Holding Corp), Indenture (Ryerson International Material Management Services, Inc.)
Limitation on Asset Sales. The Company Issuers will not, and will not permit any of its Restricted their Subsidiaries to, consummate an Asset Sale unless:
unless (1i) the Company Issuers or the Restricted such applicable Subsidiary, as the case may be, receives consideration at the time of the Asset Sale such sale or other disposition at least equal to the Fair Market Value fair market value of the assets or Equity Interests issued or sold or otherwise disposed ofof (as determined in good faith by the Board of Directors of the Company, and evidenced by a board resolution); and
(2ii) at least 85not less than 80% of the consideration received in the Asset Sale by the Company or such Restricted Subsidiary is in the form of cash. For purposes of this Section 5.10, each of the following will be deemed to be cash:
(1) any liabilities, as shown on the Company’s most recent consolidated balance sheet, of the Company or any Subsidiary (other than contingent liabilities and Indebtedness that are (x) by their terms subordinated to the Notes or any Note Guarantee, (y) unsecured, or (z) secured by a Lien on the assets or rights that are the subject of the Asset Sale, which Lien is junior in priority to the Liens securing the Notes or any Note Guarantee) that are assumed by the transferee of any such assets pursuant to a customary novation agreement that releases the Company or such Subsidiary from further liability;
(2) 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, to the extent of the cash received in that conversion; and
(3) any stock or assets of the kind referred to in clauses (2) or (4) of the next paragraph of this covenant. Within 365 days after the receipt of any Net Proceeds from an Asset Sale, the Company (or the applicable Restricted Subsidiary, as the case may be, is in the form of cash or Cash Equivalents other than in the case where the Company is undertaking a Permitted Asset Swap; and (iii) the Asset Sale Proceeds received by the Company or such Subsidiary are applied (a) first, to the extent the Company or any such Subsidiary, as the case may apply such Net Proceeds:
(1) be, elects, or is required, to prepay, repay Indebtedness and other Obligations or purchase indebtedness under the Working Capital Senior Credit Facility and to correspondingly permanently reduce commitments with respect thereto;
(2) to acquire all or substantially all within 180 days following the receipt of the Asset Sale Proceeds from any Asset Sale; PROVIDED that any such repayment shall result in a permanent reduction of the commitments thereunder in an amount equal to the principal amount so repaid; (b) second, to the extent of the balance of Asset Sale Proceeds after application as described above, to the extent the Company elects, to an investment in assets of, or any (including Capital Stock of, another Permitted Business, if, after giving effect to any such or other securities purchased in connection with the acquisition of Capital Stock, the Permitted Business is Stock or becomes (xproperty of another Person) a Restricted Subsidiary of the Company and (y) a Guarantor;
(3) to make capital expenditures in a Permitted Business (other than Equity Interests, Indebtedness or current assets); or
(4) to acquire other assets (other than Equity Interests or Indebtedness) that are not classified as current assets under GAAP and that are used or useful in a Permitted Business. Pending businesses similar or ancillary to the final application business of the Company or any Net such Subsidiary as conducted on the Issue Date; PROVIDED that (1) such investment occurs or the Company or any such Subsidiary enters into contractual commitments to make such investment, subject only to customary conditions (other than the obtaining of financing), within 180 days following receipt of such Asset Sale Proceeds and (2) Asset Sale Proceeds so contractually committed are so applied within 270 days following the receipt of such Asset Sale Proceeds; and (c) third, if on such 180th day in the case of clauses (iii)(a) and (iii)(b)(1) or on such 270th day in the case of clause (iii)(b)(2) with respect to any Asset Sale, the Company may temporarily reduce borrowings under the Working Capital Facility or otherwise invest the Net Available Asset Sale Proceeds in any manner that is not prohibited by this Indenture. Any Net Proceeds from Asset Sales that are not applied or invested as provided in the second paragraph of this covenant will constitute “Excess Proceeds.” When the aggregate amount of Excess Proceeds exceeds exceed $5.0 5 million, the Company will, within five (5) days thereof, make shall apply an amount equal to such Available Asset Sale Offer Proceeds to all Holders and all holders of other senior secured Indebtedness that is pari passu an offer to repurchase the Securities, at a purchase price in right of payment and as to security interests with the Notes with respect to the assets that are the subject of such Asset Sale 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 amount of Notes and such other pari passu Indebtedness that may be purchased out of the Excess Proceeds in accordance with the procedures set forth in Section 3.09 hereof. The offer price for the Notes in any Asset Sale Offer will be cash equal to 100% of the aggregate Accreted Value thereof plus accrued and unpaid interest, if any, to the purchase date (an "EXCESS PROCEEDS OFFER"). If an Excess Proceeds Offer is not fully subscribed, the Company may retain the portion of the Available Asset Sale Proceeds not required to repurchase Securities. If the Issuers are required to make an Excess Proceeds Offer, the Issuers shall mail, within 30 days following the date specified in clause (iii)(c) above, a notice to the holders stating, among other things:
(1) that such holders have the right to require the Issuers to apply the Available Asset Sale Proceeds to repurchase such Securities at a purchase price in cash equal to (x) 100% of the Accreted Value thereof, if the applicable purchase date is on or prior to September 30, 2000, or (y) 100% of the principal amount of the Notesat maturity thereof, plus accrued and unpaid interest interest, if any, to the purchase date, if the purchase date of purchaseis after September 30, 2000;
(2) the purchase date, which shall be no earlier than 30 days and will be payable not later than 45 days from the date such notice is mailed;
(3) the instructions that each holder must follow in cash. If any Excess Proceeds remain after consummation of an Asset Sale Offer, order to have such Securities purchased;
(4) the Company may use those Excess Proceeds for any purpose not otherwise prohibited by this Indenture. If the aggregate principal amount of Notes and calculations used in determining the amount of other pari passu Indebtedness Available Asset Sale Proceeds to be applied to the purchase of such Securities;
(5) that if the Accreted Value of Securities tendered into such in the Asset Sale Offer exceeds the aggregate amount of Excess Available Asset Sale Proceeds, the Trustee Issuers shall select the Notes and such other pari passu Indebtedness Securities to be purchased on a pro rata basis;
(6) that any Security not tendered will continue to accrete Accreted Value and accrue interest;
(7) that, unless the Issuers default in making payment therefor, any Security accepted for payment pursuant to the Asset Sale Offer shall cease to accrete Accreted Value and accrue interest after the purchase date;
(8) that Holders electing to have a Security purchased pursuant to the Asset Sale Offer will be required to surrender the Security, with the form entitled "Option of Holder to Elect Purchase" on the reverse of the Security completed, to the Paying Agent at the address specified in the notice prior to the close of business on the Asset Sale Offer purchase date;
(9) that Holders will be entitled to withdraw their election if the Paying Agent receives, not later than the second Business Day prior to the Asset Sale Offer purchase date, a facsimile transmission or letter setting forth the name of the Holder, the principal amount at maturity of the Security the Holder delivered for purchase and a statement that such Holder is withdrawing his election to have such Security purchased; and
(10) that Holders whose Securities are purchased only in part will be issued new Securities in a principal amount at maturity equal to the unpurchased portion of the Securities surrendered. Upon completion of each On or before the Asset Sale Offer purchase date, the Issuers shall (i) accept for payment Securities or portions thereof tendered pursuant to the Asset Sale Offer, (ii) deposit with the Paying Agent U.S. Legal Tender sufficient to pay the purchase price, plus accrued interest, if any, of all Securities to be purchased and (iii) deliver to the Trustee Securities so accepted together with an Officers' Certificate stating the Securities or portions thereof being purchased by the Company. The Paying Agent shall promptly mail to the Holders of Securities so accepted payment in an amount equal to the purchase price, plus accrued interest, if any, thereon. For purposes of Excess Proceeds will this Section 4.13, the Trustee shall act as the Paying Agent. In the event of the transfer of substantially all of the property and assets of the Issuers and their Subsidiaries as an entirety to a Person in a transaction permitted under Article Five, the successor Person shall be reset at zerodeemed to have sold the properties and assets of the Issuers and their Subsidiaries not so transferred for purposes of this covenant, and shall comply with the provisions of this covenant with respect to such deemed sale as if it were an Asset Sale. The Issuers shall comply with all tender offer rules under state and federal securities laws, including, but not limited to, Section 14(e) under the Exchange Act and Rule l4e-1 thereunder, to the extent applicable to such offer. To the extent that the provisions of any securities laws or regulations conflict with the foregoing provisions of this Indenture, the Issuers shall comply with the applicable securities laws and regulations and shall not be deemed to have breached its obligations under the foregoing provisions of this Indenture by virtue thereof.
Appears in 2 contracts
Samples: Indenture (Acme Intermediate Holdings LLC), Indenture (Acme Television LLC)
Limitation on Asset Sales. (A) The Company will not, and will not permit any of its Restricted Subsidiaries to, consummate an Asset Sale unless:
(1) the Company or the applicable Restricted Subsidiary, as the case may be, receives consideration at the time of the such Asset Sale at least equal to the Fair Market Value fair market value of the assets or Equity Interests issued or sold or otherwise disposed of; andof (as determined in good faith by the Company's Board of Directors);
(2) at least 8575% of the consideration received in the Asset Sale by the Company or the Restricted Subsidiary, as the case may be, from such Restricted Subsidiary is Asset Sale shall be in the form of cash. For purposes , Cash Equivalents or Replacement Assets and shall be received at the time of this Section 5.10, each of the following will be deemed to be cashsuch disposition; provided that:
(1a) the amount of any liabilities, liabilities (as shown on the Company’s 's or such Restricted Subsidiary's most recent consolidated balance sheet, ) of the Company or any such Restricted Subsidiary (other than contingent liabilities and Indebtedness that are (x) by their terms subordinated in right of payment to the Notes or any Note Guarantee, (y) unsecured, or (z) secured by Guarantee of a Lien on the assets or rights that are the subject of the Asset Sale, which Lien is junior in priority to the Liens securing the Notes or any Note GuaranteeGuarantor) that are assumed by the transferee of any such assets pursuant to a customary novation agreement that releases the Company or such Subsidiary from further liability;assets, and
(2b) the fair market value of any securities, notes securities or other obligations assets received by the Company or any such Restricted Subsidiary from in exchange for any such transferee assets that are contemporaneouslyconverted into cash within 180 days after such Asset Sale, subject shall be deemed to ordinary settlement periods, converted by the Company or such Restricted Subsidiary into cash, to the extent be cash for purposes of the cash received in that conversionthis provision; and
(3) any stock or assets upon the consummation of the kind referred to in clauses (2) or (4) of the next paragraph of this covenant. Within 365 days after the receipt of any Net Proceeds from an Asset Sale, the Company shall apply, or cause such Restricted Subsidiary to apply, the Net Cash Proceeds relating to such Asset Sale within 365 days of receipt thereof (provided that if the Company or the applicable such Restricted Subsidiary, as the case may be) may , has entered into an agreement in definitive form to so apply such Net Cash Proceeds, the transaction contemplated by such agreement must be consummated within the later of such 365 day period and 120 days from the date of the execution of such agreement) either:
(1a) to repay Indebtedness and other any Obligations under the Working Capital Facility and to correspondingly permanently reduce commitments with respect theretoCredit Agreement or any Guarantor Senior Debt and, in the case of any such Indebtedness under a revolving credit facility, effect a permanent reduction in the availability under such revolving credit facility;
(2b) to acquire all make an investment in properties and assets that replace the properties and assets that were the subject of such Asset Sale or substantially all of the in properties and assets of, or any Capital Stock of, another Permitted Business, if, after giving effect to any such acquisition of (including Capital Stock, ) that will be used in the Permitted Business is or becomes (x) a Restricted Subsidiary business of the Company and its Restricted Subsidiaries as existing on the Issue Date or in businesses reasonably related thereto (y"Replacement Assets"); and/or
(c) a Guarantor;combination of repayment and investment permitted by the foregoing clauses (3)(a) and (3)(b).
(3B) to make capital expenditures in a Permitted Business (other than Equity Interests, Indebtedness or current assets); or
(4) to acquire other assets (other than Equity Interests or Indebtedness) that are not classified as current assets under GAAP and that are used or useful in a Permitted Business. Pending the final application of any such Net Cash Proceeds, the Company may temporarily reduce borrowings under the Working Capital Facility Credit Agreement or otherwise invest any other revolving credit facility, if any. On the 366th day after an Asset Sale or such earlier date, if any, as the Board of Directors of the Company or of such Restricted Subsidiary determines not to apply the Net Cash Proceeds relating to such Asset Sale as set forth in clauses (3)(a), (3)(b) and (3)(c) of paragraph (A) above or, in the event that a definitive agreement has been entered into prior to such 366th day pursuant to which the Net Cash Proceeds are to be applied, on the later of the 366th day and the 121st day after the execution of such agreement (each, a "Net Proceeds Offer Trigger Date"), such aggregate amount of Net Cash Proceeds which have not been applied on or before such Net Proceeds Offer Trigger Date as permitted in clauses (3)(a), (3)(b) and (3)(c) of the preceding paragraph (each a "Net Proceeds Offer Amount") shall be applied by the Company or such Restricted Subsidiary to make an offer to purchase (the "Net Proceeds Offer") to all Holders and, to the extent required by the terms of any Pari Passu Debt, an offer to purchase to all holders of such Pari Passu Debt, on a date (the "Net Proceeds Offer Payment Date") not less than 30 nor more than 60 days following the applicable Net Proceeds Offer Trigger Date, from all Holders (and holders of any such Pari Passu Debt) on a pro rata basis, that amount of Notes (and Pari Passu Debt) equal to the Net Proceeds in any manner that is not prohibited by this Indenture. Any Net Proceeds from Asset Sales that are not applied or invested as provided in the second paragraph of this covenant will constitute “Excess Proceeds.” When the aggregate amount of Excess Proceeds exceeds $5.0 million, the Company will, within five (5) days thereof, make an Asset Sale Offer to all Holders and all holders of other senior secured Indebtedness that is pari passu in right of payment and as to security interests with the Notes with respect to the assets that are the subject of such Asset Sale 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 amount of Notes and such other pari passu Indebtedness that may be purchased out of the Excess Proceeds in accordance with the procedures set forth in Section 3.09 hereof. The offer Amount at a price for the Notes in any Asset Sale Offer will be equal to 100% of the aggregate principal amount of the NotesNotes (and Pari Passu Debt) to be purchased, plus accrued and unpaid interest thereon, if any, to the date of purchase.
(C) If at any time any non-cash consideration received by the Company or any Restricted Subsidiary of the Company, as the case may be, in connection with any Asset Sale is converted into or sold or otherwise disposed of for cash (other than interest received with respect to any such non-cash consideration), then such conversion or disposition shall be deemed to constitute an Asset Sale hereunder as of the date of such conversion or disposition and the Net Cash Proceeds thereof shall be applied in accordance with this Section 1015.
(D) The Company may defer the Net Proceeds Offer until there is an aggregate unutilized Net Proceeds Offer Amount equal to or in excess of $15.0 million resulting from one or more Asset Sales (at which time the entire unutilized Net Proceeds Offer Amount, and will not just the amount in excess of $15.0 million, shall be payable applied as required pursuant to this Section 1015).
(E) In the event of the transfer of substantially all (but not all) of the property and assets of the Company and its Restricted Subsidiaries as an entirety to a Person in casha transaction permitted under Section 801, which transaction does not constitute a Change of Control, the successor corporation shall be deemed to have sold the properties and assets of the Company and its Restricted Subsidiaries not so transferred for the purposes of this covenant, and shall comply with the provisions of this covenant with respect to such deemed sale as if it were an Asset Sale. In addition, the fair market value of such properties and assets of the Company or its Restricted Subsidiaries deemed to be sold shall be deemed to be Net Cash Proceeds for purposes of this Section 1015.
(F) If any Excess Net Cash Proceeds remain after the consummation of an Asset Sale any Net Proceeds Offer, the Company may use those Excess such Net Cash Proceeds for any purpose not otherwise prohibited by this Indenture. If the aggregate principal amount of Notes and the amount of other pari passu Indebtedness tendered into such Asset Sale Offer exceeds the amount of Excess Proceeds, the Trustee shall select the Notes and such other pari passu Indebtedness Indenture without regard to be purchased on a pro rata basisthis Section 1015. Upon completion of each Asset Sale Net Proceeds Offer, the amount of Excess Net Proceeds Offer Amount will be reset at to zero.
(G) In the event the Company or any of its Restricted Subsidiaries consummate a single Asset Sale for which the Company or its Restricted Subsidiaries receive aggregate consideration at the time of such Asset Sale in excess of $100.0 million, the Company or such Restricted Subsidiary, as the case may be, shall, prior to the consummation thereof, obtain a favorable opinion as to the fairness of such Asset Sale to the Company or the relevant Restricted Subsidiary, as the case may be, from a financial point of view, from an Independent Financial Advisor and file the same with the Trustee.
(H) Notwithstanding paragraphs (A) and (B) of this Section 1015, the Company and its Restricted Subsidiaries will be permitted to enter into and consummate an Asset Swap without complying with such paragraphs to the extent that:
(1) at the time of entering into such Asset Swap or immediately after giving effect to such Asset Swap, no Default or Event of Default shall have occurred or be continuing or would occur as a consequence thereof, and
(2) in the event that such Asset Swap involves an aggregate amount in excess of $10.0 million, a majority of the members of the Board of Directors of the Company shall have approved the terms of such Asset Swap and determined that the consideration received in such Asset Swap is at least equal to the fair market value of the assets disposed of in such Asset Swap.
(I) The Company will comply with the requirements of Rule 14e-1 under the Exchange Act and any other securities laws and regulations thereunder to the extent such laws and regulations are applicable in connection with the repurchase of Notes pursuant to a Net Proceeds Offer. To the extent that the provisions of any securities laws or regulations conflict with this Section 1015, the Company shall comply with the applicable securities laws and regulations and shall not be deemed to have breached its obligations under this Section 1015 by virtue thereof.
Appears in 2 contracts
Samples: Second Supplemental Indenture (Dole Food Company Inc), Second Supplemental Indenture (Dole Food Co Inc)
Limitation on Asset Sales. The Company will not, and will not permit any of its Restricted Subsidiaries to, consummate an Asset Sale unless:
(1) the Company or the one or more of its Restricted SubsidiarySubsidiaries, as the case may be, receives consideration at the time of the such Asset Sale at least equal to the Fair Market Value fair market value of the assets or Equity Interests issued or sold or otherwise disposed of; andof;
(2) at least 8575% of the consideration received in the Asset Sale by the Company or such Restricted Subsidiary Subsidiaries, exclusive of indemnities, as the case may be, from such Asset Sale is in cash or Cash Equivalents and is received at the form time of cash. For purposes such disposition; provided that the amount of this Section 5.10, each (a) any liabilities of the following will be deemed to be cash:
(1) Company or any liabilitiessuch Restricted Subsidiary, as shown on the Company’s or such Restricted Subsidiary’s most recent consolidated balance sheetsheet (or in the notes thereto), of the Company or any Subsidiary (other than contingent liabilities and Indebtedness that are (x) by their terms subordinated to the Notes or any Note Guarantee, (y) unsecured, or (z) secured by a Lien on the assets or rights that are the subject of the Asset Sale, which Lien is junior in priority to the Liens securing the Notes or any Note Guarantee) that are assumed by the transferee of any such assets pursuant to a customary novation agreement that releases the Company or such Subsidiary from further liability;
assets, (2b) 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 cashcash or Cash Equivalents within one year of the time of such disposition, to the extent of the cash or Cash Equivalents received and (c) any Designated Non-Cash Consideration received by the Company or any of its Restricted Subsidiaries in such Asset Sale having an aggregate fair market value, taken together with all other Designated Non-Cash Consideration received pursuant to this clause (c) that conversion; is at that time outstanding, not to exceed the greater of $225.0 million and 3.0% of the Company’s Total Assets, with the fair market value of each item of Designated Non-Cash Consideration being measured at the time received and without giving effect to subsequent changes in value, will be deemed to be cash for the purposes of this clause (2); and
(3) any stock or assets upon the consummation of the kind referred to in clauses (2) or (4) of the next paragraph of this covenant. Within 365 days after the receipt of any Net Proceeds from an Asset Sale, the Company (applies directly or the applicable through a Restricted Subsidiary, as or causes one or more of its Restricted Subsidiaries to apply, an amount equal to the case may be) may apply Net Cash Proceeds relating to such Net ProceedsAsset Sale within 455 days of receipt thereof, at the option of the Company, either:
(1A) to repay any Secured Indebtedness and other Obligations under the Working Capital Facility and incurrence of which was permitted by this Indenture (and, if the Indebtedness repaid is revolving credit facility Indebtedness, to correspondingly permanently reduce commitments with respect thereto;), other than Indebtedness owed to the Company or another Restricted Subsidiary;
(2B) to acquire all or substantially all repay any Indebtedness of the assets of, or any Capital Stock of, another Permitted Business, if, after giving effect to any such acquisition of Capital Stock, the Permitted Business is or becomes (x) a Restricted Subsidiary of the Company and (y) a Guarantor;
(3) to make capital expenditures in a Permitted Business (other than Equity Interests, Indebtedness or current assets); or
(4) to acquire other assets (other than Equity Interests or Indebtedness) that are not classified as current assets under GAAP and that are used or useful in a Permitted Business. Pending the final application of any Net Proceeds, the Company may temporarily reduce borrowings under the Working Capital Facility or otherwise invest the Net Proceeds in any manner that is not prohibited by this Indenture. Any Net Proceeds from Asset Sales a Guarantor;
(C) to repay or repurchase Pari Passu Indebtedness (provided that the Issuer shall (i) redeem or repurchase at least a pro rata portion of the Securities (based on the amount so applied to such repayments or repurchases of Pari Passu Indebtedness), by, at the Company’s option, (a) redeeming the Securities as described under Paragraph 5, Paragraph 6 or Paragraph 7 of the Securities and Section 3.03 or (b) through privately negotiated transactions or open-market purchases (to the extent such purchases are not applied a price at or invested as provided in above 100% of the second paragraph of this covenant will constitute “Excess Proceeds.” When principal amount thereof plus the aggregate amount of Excess Proceeds exceeds $5.0 millionaccrued but unpaid interest, if any, thereon) or (ii) offer to redeem or repurchase at least a pro rata portion of the Company will, within five Securities (5) days thereof, make an Asset Sale Offer based on the amount so applied to all Holders and all holders of other senior secured Indebtedness that is pari passu in right of payment and as to security interests with the Notes with respect to the assets that are the subject such repayments or repayments or repurchases of such Asset Sale 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 amount of Notes and such other pari passu Indebtedness that may be purchased out of the Excess Proceeds Pari Passu Indebtedness) by making an offer (in accordance with the procedures set forth below for a Net Proceeds Offer) to all Holders to purchase the Securities at a price at or above 100% of the principal amount thereof, plus the amount of accrued but unpaid interest, if any, on the amount of Securities that would otherwise be prepaid);
(D) to reinvest in Section 3.09 hereofProductive Assets (or enter into a binding commitment to reinvest, if such reinvestment is effected within 180 days after the date of such commitment); or
(E) a combination of prepayment, reduction and investment permitted by the foregoing clauses (3)(A) through (3)(D); provided that the 75% limitation referred to above will not apply to any sale, transfer or other disposition of assets in which the cash portion of the consideration received therefor is equal to or greater than what the after tax net proceeds would have been had such transaction complied with the aforementioned 75% limitation. The offer price for On the Notes in any 456th day after an Asset Sale (or, if later, the 181st day after the entry into a binding commitment to reinvest) or such earlier date, if any, as the Company in good faith determines not to apply an amount equal to the Net Cash Proceeds relating to such Asset Sale as set forth in clause (3) of the preceding sentence (each, a “Net Proceeds Offer Trigger Date”), such aggregate amount of Net Cash Proceeds that have not been so applied on or before such Net Proceeds Offer Trigger Date as permitted in clause (3)) of the preceding sentence (each, a “Net Proceeds Offer Amount”) the Issuer will make an offer to repurchase (the “Net Proceeds Offer”) on a date (the “Net Proceeds Offer Payment Date”) not less than 30 nor more than 60 days following the applicable Net Proceeds Offer Trigger Date (or such longer period as may be required by law), from all Holders, that amount of Securities equal to the aggregate amount of Net Cash Proceeds that have not been so applied on or before such Net Proceeds Offer Trigger Date as permitted in clause (3) of the preceding sentence multiplied by a fraction, the numerator of which is the aggregate principal amount of Securities then outstanding and the denominator of which is the sum of the aggregate principal amount of Securities and Pari Passu Indebtedness then outstanding (the “Pro Rata Amount”), at a price equal to 100% of the aggregate principal amount of the NotesSecurities to be repurchased, plus accrued and unpaid interest to the date of purchaserepurchase. Notwithstanding the foregoing, if a Net Proceeds Offer Amount is less than $75.0 million, the application of the Net Cash Proceeds constituting such Net Proceeds Offer Amount to a Net Proceeds Offer may be deferred until such time as such Net Proceeds Offer Amount plus the aggregate amount of all Net Proceeds Offer Amounts arising subsequent to the Net Proceeds Offer Trigger Date relating to such initial Net Proceeds Offer Amount from all Asset Sales by the Company and its Restricted Subsidiaries aggregates at least $75.0 million, at which time the Issuer will be payable in cash. If any Excess apply all Net Cash Proceeds remain after consummation of an Asset Sale constituting all Net Proceeds Offer Amounts that have been so deferred to make a Net Proceeds Offer, the Company first date the aggregate of all such deferred Net Proceeds Offer Amounts is at least $75.0 million being deemed to be a Net Proceeds Offer Trigger Date. To the extent that the aggregate purchase price of Securities tendered pursuant to any Net Proceeds Offer is less than the Pro Rata Amount, the Issuer or any Guarantor may use those Excess Proceeds such amount for any purpose not otherwise prohibited by this Indenture. If Upon completion of any Net Proceeds Offer, the Net Proceeds Offer Amount shall be reset to zero. Notwithstanding the first two paragraphs of this Section 4.16, the Company and its Restricted Subsidiaries will be permitted to consummate an Asset Sale without complying with such paragraphs to the extent
(1) at least 50% of the consideration for such Asset Sale constitutes Productive Assets; and
(2) such Asset Sale is for fair market value; provided that the fair market value of any consideration not constituting Productive Assets received by the Company or any of its Restricted Subsidiaries in connection with any Asset Sale permitted to be consummated under this paragraph will constitute Net Cash Proceeds subject to the provisions of the first two paragraphs of this Section 4.16. In the event of the transfer of substantially all, but not all, of the property and assets of the Company and its Restricted Subsidiaries as an entirety to a Person in a transaction permitted under Section 5.01, the successor corporation will be deemed to have sold the properties and assets of the Company and its Restricted Subsidiaries not so transferred for purposes of this Section 4.16, and will comply with the provisions of this Section 4.16 with respect to such deemed sale as if it were an Asset Sale. In addition, the fair market value of such properties and assets of the Company or its Restricted Subsidiaries deemed to be sold will be deemed to be Net Cash Proceeds for purposes of this Section 4.16. Notice of a Net Proceeds Offer will be sent electronically or mailed, by first class mail, by the Issuer to Holders as shown on the register of Holders at their last registered address not less than 30 days nor more than 60 days before the Net Proceeds Offer Payment Date, with a copy to the Trustee. The notice shall contain instructions and materials necessary to enable such Holders to tender Securities pursuant to the Net Proceeds Offer and shall state the following terms:
(1) that the Net Proceeds Offer is being made pursuant to this Section 4.16, that all Securities tendered will be accepted for payment; provided, however, that if the aggregate principal amount of Notes and Securities tendered in a Net Proceeds Offer plus accrued interest at the expiration of such offer exceeds the aggregate amount of other pari passu Indebtedness tendered into such Asset Sale Offer exceeds the amount of Excess ProceedsNet Proceeds Offer, the Trustee shall will select the Notes and such other pari passu Indebtedness Securities or portions thereof to be purchased repurchased (with such adjustments as may be deemed appropriate by the Issuer so that only Securities in denominations of $2,000 or multiples thereof shall be purchased) among the Holders as follows: (i) if the Securities are listed, in compliance with any applicable requirements of the principal national securities exchange on which the Securities are listed; or (ii) if the Securities are not so listed, on a pro rata basis, by lot or by any other method the trustee considers fair and appropriate. Upon completion A Net Proceeds Offer shall remain open for a period of 20 Business Days or such longer period as may be required by law;
(2) the Net Proceeds Offer Amount (including the amount of accrued interest) and the Net Proceeds Offer Payment Date (which shall be not less than 30 nor more than 60 days following the applicable Net Proceeds Offer Trigger Date (or such longer period as may be required by law) and which shall be at least five Business Days after the Trustee receives notice thereof from the Issuer);
(3) that any Security not tendered will continue to accrue interest;
(4) that, unless the Issuer defaults in making payment therefor, any Security accepted for payment pursuant to the Net Proceeds Offer shall cease to accrue interest after the Net Proceeds Offer Payment Date;
(5) that Holders electing to have a Security purchased pursuant to a Net Proceeds Offer will be required to surrender the Security, with the form entitled “Option of Holder to Elect Purchase” on the reverse of the Security completed, to the Paying Agent at the address specified in the notice prior to the close of business on the Business Day prior to the Net Proceeds Offer Payment Date;
(6) that Holders will be entitled to withdraw their election if the Paying Agent receives, not later than the second Business Day prior to the Net Proceeds Offer Payment Date, electronic mail in pdf format, facsimile transmission or letter setting forth the name of the Holder, the principal amount of the Securities such Xxxxxx delivered for purchase and a statement that such Xxxxxx is withdrawing his election to have such Securities purchased; and
(7) that Holders whose Securities are purchased only in part will be issued new Securities in a principal amount equal to the unpurchased portion of the Securities surrendered; provided, however, that each Asset Sale Security purchased and each new Security issued shall be subject to the Minimum Denominations Requirement. On or before the Net Proceeds Offer Payment Date, the Issuer shall (i) accept for payment Securities or portions thereof tendered pursuant to the Net Proceeds Offer which are to be purchased in accordance with item (1) above, (ii) deposit with the Paying Agent U.S. Legal Tender sufficient to pay the purchase price plus accrued interest, if any, of all Securities to be purchased and (iii) deliver to the Trustee Securities so accepted together with an Officer’s Certificate of the Issuer stating the Securities or portions thereof being purchased by the Issuer. The Paying Agent shall promptly mail to the Holders of Securities so accepted payment in an amount equal to the purchase price plus accrued interest, if any. For purposes of this Section 4.16, the Trustee shall act as the Paying Agent. Any amounts remaining after the purchase of Securities pursuant to a Net Proceeds Offer promptly shall be returned by the Trustee to the Issuer. If an offer is made to repurchase the Securities pursuant to a Net Proceeds Offer, the amount Company will and will cause its Restricted Subsidiaries to comply with all tender offer rules under state and federal securities laws, including, but not limited to, Section 14(e) under the Exchange Act and Rule 14e-1 thereunder, to the extent applicable to such offer. To the extent that the provisions of Excess Proceeds will any securities laws or regulations conflict with this Section 4.16, the Company and the Issuer shall comply with the applicable securities laws and obligations and shall not be reset at zerodeemed to have breached their obligations hereunder by virtue thereof.
Appears in 2 contracts
Limitation on Asset Sales. (a) The Company will shall not, and will shall not permit any of its Restricted Subsidiaries Subsidiary to, directly or indirectly, consummate an any Asset Sale unless:
(1i) the Company or such Restricted Subsidiary receives consideration, including the Restricted Subsidiaryrelief of liabilities, as the case may be, receives consideration at the time of the such Asset Sale at least equal to the Fair Market Value of the assets or Equity Interests issued or sold or otherwise disposed ofProperty subject to such Asset Sale; and
(2ii) except in the case of a Permitted Asset Swap, at least 8575% of the consideration received in the Asset Sale by paid to the Company or such Restricted Subsidiary in connection with such Asset Sale is in the form of cashcash or Temporary Cash Investments. For Solely for the purposes of clause (a)(ii) of this Section 5.104.12, each of the following will be deemed to be cash:
(1A) any liabilities, as shown on the Company’s most recent consolidated balance sheet, assumption by the purchaser of liabilities of the Company or any Restricted Subsidiary (other than contingent liabilities and Indebtedness or liabilities that are (x) by their terms subordinated to the Notes or any Note Guarantee, (y) unsecured, or (z) secured by a Lien on the assets or rights that are the subject of the Asset Sale, which Lien is junior in priority to the Liens securing the Notes or any Note applicable Subsidiary Guarantee) that are assumed by the transferee as a result of any such assets pursuant to a customary novation agreement that releases which the Company or and the Restricted Subsidiaries are no longer obligated with respect to such Subsidiary from further liabilityliabilities;
(2B) any securities, notes or other obligations received by the Company or any such Restricted Subsidiary from such transferee that purchaser to the extent they are contemporaneously, subject to ordinary settlement periods, promptly converted or monetized by the Company or such Restricted Subsidiary into cash, cash (to the extent of the cash received in that conversionreceived) or by their terms mature or are otherwise to be converted into cash within 180 days; and
(3C) any stock Designated Noncash Consideration the Fair Market Value of which, when taken together with all other Designated Noncash Consideration received pursuant to this clause (C) (and not subsequently converted into cash or Temporary Cash Investments that are treated as Net Available Cash), does not exceed the greater of (1) $175.0 million and (2) 5.5% of the Consolidated Net Tangible 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.
(b) The Net Available Cash (or any portion thereof) from Asset Sales may be applied by the Company or a Restricted Subsidiary, to the extent the Company or such Restricted Subsidiary elects (or is required by the terms of any Debt) to any of the following uses:
(i) to Repay
(A) Debt of the Company or any Restricted Subsidiary that is secured by the Property subject to such Asset Sale (excluding any Debt owed to the Company or an Affiliate of the Company) and/or
(B) Debt under the Credit Agreement or other Debt secured by a Lien on assets of the kind referred to in clauses Company or a Restricted Subsidiary (2) or (4) of and, if the next paragraph of this covenant. Within 365 days after the receipt of any Net Proceeds from an Asset SaleDebt repaid is revolving credit Debt, the Company (or the applicable Restricted Subsidiary, as the case may be) may apply such Net Proceeds:
(1) to repay Indebtedness and other Obligations under the Working Capital Facility and to correspondingly permanently reduce commitments with respect thereto);
(2ii) to acquire all invest or substantially all reinvest in Additional Assets (including by means of the assets of, or any Capital Stock of, another Permitted Business, if, after giving effect to any such acquisition of Capital Stock, the Permitted Business is or becomes (x) an Investment in Additional Assets by a Restricted Subsidiary of with Net Available Cash received by the Company and (y) a Guarantor;or another Restricted Subsidiary); or
(3iii) to make capital expenditures or other expenditures for maintenance, repair or improvement of existing Property. Notwithstanding the foregoing, (i) any investment in a Permitted Business (other than Equity Interests, Indebtedness or current assets); or
(4) Additional Assets within 180 days prior to acquire other assets (other than Equity Interests or Indebtedness) that are not classified as current assets under GAAP and that are used or useful in a Permitted Business. Pending the final application of any Net Proceeds, the Company may temporarily reduce borrowings under the Working Capital Facility or otherwise invest the Net Proceeds in any manner that is not prohibited by this Indenture. Any Net Proceeds from Asset Sales that are not applied or invested as provided in the second paragraph of this covenant will constitute “Excess Proceeds.” When the aggregate amount of Excess Proceeds exceeds $5.0 million, the Company will, within five (5) days thereof, make an Asset Sale Offer shall be deemed to all Holders and all holders of other senior secured Indebtedness that is pari passu in right of payment and as to security interests with the Notes satisfy clause (b)(ii) above with respect to the assets that are the subject of any such Asset Sale 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 amount of Notes and such other pari passu Indebtedness that may be purchased out of the Excess Proceeds in accordance with the procedures set forth in Section 3.09 hereof. The offer price for the Notes in any Asset Sale Offer will be equal to 100% of the aggregate principal amount of the Notes, plus accrued and unpaid interest to the date of purchase, and will be payable in cash. If any Excess Proceeds remain after consummation of an Asset Sale Offer, the Company may use those Excess Proceeds for any purpose not otherwise prohibited by this Indenture. If the aggregate principal amount of Notes and the amount of other pari passu Indebtedness tendered into such Asset Sale Offer exceeds the amount of Excess Proceeds, the Trustee shall select the Notes and such other pari passu Indebtedness to be purchased on a pro rata basis. Upon completion of each Asset Sale Offer, the amount of Excess Proceeds will be reset at zero.and
Appears in 2 contracts
Limitation on Asset Sales. (a) The Company will shall not, and will shall not permit any of its Restricted Subsidiaries to, consummate an Asset Sale unless:
(1) the Company (or the Restricted Subsidiary, as the case may be, ) receives consideration (including by way of relief from, or by any other Person assuming responsibility for, any liabilities, contingent or otherwise) at the time of the Asset Sale at least equal to the Fair Market Value of the assets or Equity Interests issued or sold or otherwise disposed of;
(2) the Fair Market Value is determined by the Company and evidenced by an Officers' Certificate delivered to the Trustee; provided, however, that with respect to any Asset Sale or series of related Asset Sales involving aggregate consideration in excess of $15,000,000, such determination shall be made by the Company's Board of Directors and evidenced by a resolution of the Board of Directors; and
(23) at least 8575% (50% in the case of Specified Assets) of the consideration received in the Asset Sale by the Company or such Restricted Subsidiary is in the form of cashcash or Cash Equivalents. For purposes of this Section 5.10provision, each of the following will shall be deemed to be cash:
(1A) any liabilities, as shown on the Company’s 's most recent consolidated balance sheetsheet or in the Notes thereto, of the Company or any Restricted Subsidiary (other than contingent liabilities and Indebtedness liabilities that are (x) by their terms subordinated to the Notes or any Note Guarantee, (y) unsecured, or (z) secured by a Lien on the assets or rights that are the subject of the Asset Sale, which Lien is junior in priority to the Liens securing the Notes or any Note Subsidiary Guarantee) that are assumed by the transferee of any such assets pursuant to a customary novation an agreement that releases the Company or such Restricted Subsidiary from further liability;
(2B) 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 cashcash within 90 days of their receipt, to the extent of the cash received in that conversion; and;
(3C) any stock Capital Stock or assets of the kind referred to in clauses (2Section 4.12(b)(3) or (4); and
(D) accounts receivable of a business, retained by the Company or one of its Restricted Subsidiaries following the sale of such business; provided that such accounts receivable (x) are not past due more than 60 days and (y) do not have a payment date greater than 90 days from the date of the next paragraph of this covenant. invoice creating such accounts receivable.
(b) Within 365 360 days after the receipt of any Net Proceeds from an Asset Sale, the Company (or the applicable any Restricted Subsidiary, as the case may be) Subsidiary may apply such those Net ProceedsProceeds at its option:
(1) to repay outstanding Senior Debt of the Company or any Restricted Subsidiary of the Company (including Indebtedness or other obligations under any Credit Facility), and thereafter, repay any other Obligations under outstanding Indebtedness of the Working Capital Facility and Company or any Restricted Subsidiary of the Company, and, in each case, if the Indebtedness repaid is revolving credit Indebtedness, to correspondingly permanently reduce commitments with respect thereto;
(2) to make one or more capital expenditures to be used in a Permitted Business;
(3) to acquire all or substantially all of the assets of, or any a majority of the Capital Stock of, another Permitted Business, if, after giving effect to any such acquisition of Capital Stock, the Permitted Business is or becomes (x) a Restricted Subsidiary of the Company and (y) a Guarantor;
(3) to make capital expenditures in a Permitted Business (other than Equity Interests, Indebtedness or current assets); orand
(4) to acquire other assets (other than Equity Interests or Indebtedness) that are not classified as current assets under GAAP and that are used or useful in a Permitted Business. Pending the final application of any Net Proceeds, the Company or any Restricted Subsidiary of the Company may temporarily reduce revolving credit borrowings under the Working Capital Facility or otherwise invest the Net Proceeds in any manner that is not prohibited by this Indenture. .
(c) Any Net Proceeds from Asset Sales that are not applied or invested as provided in the second paragraph of this covenant will Section 4.12(b) above shall constitute “"Excess Proceeds.” " When the aggregate amount of Excess Proceeds exceeds $5.0 million10,000,000, the Company will, within five (5) days thereof, shall make an offer (an "Asset Sale Offer Offer") to all Holders of Notes and all holders of other senior secured Indebtedness that is pari passu in right of payment and as to security interests with the Notes with respect to the assets that are the subject of such Asset Sale 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 notes and such other pari passu Indebtedness that may be purchased out of the Excess Proceeds in accordance with the procedures set forth in Section 3.09 hereofProceeds. The offer price for the Notes in any Asset Sale Offer will shall be equal to 100% of the aggregate principal amount of the Notes, plus accrued and unpaid interest and Additional Interest, if any, to the date of purchase, and will shall be payable in cash. If any Excess Proceeds remain after consummation of an Asset Sale Offer, the Company may use those Excess Proceeds for any purpose not otherwise prohibited by this Indenture. If the aggregate principal amount of Notes and the amount of other pari passu Indebtedness tendered into such Asset Sale Offer exceeds the amount of Excess Proceeds, the Trustee shall select the Notes and such other pari passu Indebtedness to be purchased on a pro rata basisbasis in proportion to the respective principal amounts (or accreted values, as applicable) of the Notes and such pari passu Indebtedness then outstanding. Upon completion of each Asset Sale Offer, the amount of Excess Proceeds will shall be reset at to zero.
(d) Within 15 Business Days after the Company is obligated to make an Asset Sale Offer as described in Section 4.12(c), the Company shall send a written notice, by first-class mail, to the Holders of Notes with a copy to the Trustee, accompanied by such information regarding the Company and the Guarantors as the Company in good faith believes shall enable such Holders to make an informed decision with respect to such Asset Sale Offer. Such notice shall state, among other things, the purchase price and the purchase date (the "Purchase Date"), which shall be, subject to any contrary requirements of applicable law, a Business Day no earlier than 20 Business Days nor later than 60 Business Days from the date such notice is mailed.
(e) Not later than the date upon which written notice of an Asset Sale Offer is delivered to the Holders of the Notes as provided in Section 4.12(d), the Company shall deliver to the Trustee an Officers' Certificate as to (1) the amount of the Asset Sale Offer (the "Offer Amount"), (2) the allocation of the Net Proceeds from the Asset Sale pursuant to which such Asset Sale Offer is being made and (3) the compliance of such allocation with the provisions of this Section 4.12. On or before the Purchase Date, the Company shall also irrevocably deposit with the Trustee or with the Paying Agent (or, if the Company or a wholly owned Subsidiary is the Paying Agent, shall segregate and hold in trust) in Cash Equivalents (other than in those enumerated in clause (2) of the definition of "Cash Equivalents"), maturing on the last day prior to the Purchase Date or on the Purchase Date if funds are immediately available by the opening of business, an amount equal to the Offer Amount to be held for payment in accordance with the provisions of this Section 4.
Appears in 2 contracts
Limitation on Asset Sales. The Company will shall not, and will shall not permit any of its Restricted Subsidiaries to, consummate an any Asset Sale Sale, unless:
(1) the consideration received by the Company or the such Restricted Subsidiary, as the case may be, receives consideration at the time of the Asset Sale Subsidiary is at least equal to the Fair Market Value of the assets or Equity Interests issued or sold or otherwise disposed of; , and
(2) at least 8575% of the consideration received in consists of cash or Temporary Cash Investments; provided that, with respect to the Asset Sale sale of one or more real estate properties, up to 75% of the consideration may consist of Indebtedness of the purchaser of such real estate properties so long as such Indebtedness is secured by a first priority Lien on the Company real estate property or such Restricted Subsidiary is in the form of cash. For properties sold; and provided, further that, for purposes of this Section 5.10, each clause (2) the amount of the following will be deemed to be cash:
(1a) any liabilities, as shown on the Company’s or such Restricted Subsidiaries’ most recent consolidated balance sheet, of the Company or any Subsidiary such Restricted Subsidiaries (other than contingent liabilities and Indebtedness liabilities that are (x) by their terms subordinated to the Notes or any Note Guarantee, (y) unsecured, or (z) secured by a Lien on the assets or rights that are the subject of the Asset Sale, which Lien is junior in priority to the Liens securing the Notes or any Note Guarantee) that are assumed by the transferee of any such assets pursuant but, except in the case of an Asset Sale to a customary novation agreement that releases Restricted Subsidiary, only to the Company or extent of the reduction in the amount of such Subsidiary from further liability;liabilities on the Company’s consolidated balance sheet; and
(2b) any securities, notes securities or other obligations received by the Company Company, any Subsidiary Guarantor or any such Restricted Subsidiary from such transferee that are contemporaneouslyimmediately converted by the Company, the Subsidiary Guarantor or such Restricted Subsidiary into cash (or as to which the Company, any Subsidiary Guarantor or such Restricted Subsidiary has received at or prior to the consummation of the Asset Sale a commitment (which may be subject to ordinary settlement periodscustomary conditions) from a nationally recognized investment, merchant or commercial bank to convert into cash within ninety (90) days of the consummation of such Asset Sale and which are thereafter actually converted into cash within such 90-day period). In the event that the Net Cash Proceeds received by the Company or such Restricted Subsidiary into cash, from one or more Asset Sales occurring on or after the Issue Date in any period of twelve consecutive months (the “Asset Period”) exceeds 1% of Total Assets (determined as of the date closest to the extent commencement of the cash received in that conversion; and
(3) any stock or assets Asset Period for which a consolidated balance sheet of the kind referred to in clauses Company and its Restricted Subsidiaries is available), then within twelve (212) or (4) of the next paragraph of this covenant. Within 365 days months after the receipt date Net Cash Proceeds exceed 1% of any Net Proceeds from an Asset SaleTotal Assets as described above, the Company shall or shall cause the excess amount to be applied to:
(A) permanently reduce Secured Indebtedness of the Company or any Restricted Subsidiary or Indebtedness of any other Restricted Subsidiary that is not a Guarantor, in each case owing to a Person other than Holdings, the Company or any of its Restricted Subsidiaries, or
(B) make a capital expenditure or invest in property or assets (other than current assets) of a nature or type or that are used in a business (or the applicable in a Restricted Subsidiary, as or a Person that becomes a Restricted Subsidiary upon such an Investment, having property and assets of a nature or type, or engaged in a business) similar or related to the case may be) may apply such Net Proceeds:
(1) to repay Indebtedness and other Obligations under the Working Capital Facility and to correspondingly permanently reduce commitments with respect thereto;
(2) to acquire all nature or substantially all type of the property and assets of, or any Capital Stock the business of, another Permitted Business, if, after giving effect to any such acquisition of Capital Stock, the Permitted Business is or becomes (x) a Restricted Subsidiary of the Company and or any of its Restricted Subsidiaries existing on the date of such capital expenditure or investment (y) or enter into a Guarantor;
(3) definitive agreement committing to make such capital expenditures in a Permitted Business (other than Equity Interests, Indebtedness expenditure or current assetsso invest within 12 months after the date of such agreement); or
(4) to acquire other assets (other than Equity Interests or Indebtedness) that are not classified as current assets under GAAP and that are used or useful in a Permitted Business. Pending the final application of any such Net ProceedsCash Proceeds as described above, the Company may temporarily reduce borrowings under the Working Capital Facility or otherwise invest the such Net Cash Proceeds in any manner that is not prohibited by this the Indenture. Any The amount of such excess Net Cash Proceeds from Asset Sales that are required to be applied (or to be committed to be applied) during such 12-month period as set forth in the preceding sentence and not applied or invested as provided in so required by the second paragraph end of this covenant will such period shall constitute “Excess Proceeds.” When ”. If, as of the first day of any calendar month, the aggregate amount of Excess Proceeds exceeds not previously subject to an Offer to Purchase pursuant to this Section 4.14 totals at least $5.0 15 million, the Company willmust commence, within five (5) days thereofnot later than the fifteenth Business Day of such month, make and consummate an Asset Sale Offer to all Purchase from the Holders of the Notes and all holders of other senior secured Indebtedness that is pari passu in right of payment and as to security interests with the Notes with respect to the assets that are the subject of such Asset Sale containing provisions similar to those set forth in this the Indenture with respect to offers to purchase or redeem with the proceeds of sales of assets to purchase the maximum assets, on a pro rata basis, an aggregate principal amount of Notes and such other pari passu Indebtedness that may be purchased out of equal to the Excess Proceeds in accordance with the procedures set forth in Section 3.09 hereof. The offer on such date, at a purchase price for the Notes in any Asset Sale Offer will be equal to 100% of the aggregate principal amount of the NotesNotes and such other Indebtedness plus, plus in each case, accrued interest and unpaid interest Additional Interest (if any) to the date of purchase, and will be payable in cash. If any Excess Proceeds remain after consummation of an Asset Sale Offer, the Company may use those Excess Proceeds for any purpose not otherwise prohibited by this IndenturePayment Date. If the aggregate principal amount of the Notes and the amount of other Indebtedness that is pari passu Indebtedness with the Notes tendered into such Asset Sale Offer to Purchase exceeds the amount of Excess Proceeds, the Trustee shall select then the Notes and such the other Indebtedness that is pari passu Indebtedness to with the Notes will be purchased on a pro rata basisbasis based on the principal amount of the Notes and the other Indebtedness that is pari passu with the Notes tendered. Upon completion of each Asset Sale OfferOffer to Purchase, the amount of any remaining Excess Proceeds subject to such Offer to Purchase will no longer be reset at zerodeemed to be Excess Proceeds.
Appears in 2 contracts
Samples: Indenture (Tarantula Ventures LLC), Indenture (Dupont Fabros Technology, Inc.)
Limitation on Asset Sales. (a) The Company will shall not, and will ------------------------- shall not permit any of its Restricted Subsidiaries Subsidiaries, directly or indirectly, to, consummate an any Asset Sale Sale, unless:
(1i) the Company or such Restricted Subsidiary, as the case may be, receives consideration for such Asset Sale at least equal to the Fair Market Value (as evidenced by a Board Resolution delivered to the Trustee) of the Property or assets sold or otherwise disposed of;
(ii) at least 75 percent of the consideration received in respect of such Asset Sale by the Company or such Restricted Subsidiary, as the case may be, for such Property or assets consists of (a) Cash Proceeds and/or Telecommunications Assets; (b) shares of publicly-traded Voting Stock of any Person engaged in the Telecommunications Business in the United States; or (c) the assumption of Indebtedness of the Company or such Restricted Subsidiary (other than Indebtedness that is subordinated to the Notes) and the release of the Company or the Restricted Subsidiary, as the case may be, receives consideration at from all liability on the time of the Asset Sale at least equal to the Fair Market Value of the assets or Equity Interests issued or sold or otherwise disposed ofIndebtedness assumed; and
(2iii) at least 85% of the consideration received in the Asset Sale by the Company or such Restricted Subsidiary is in the form of cash. For purposes of this Section 5.10, each of the following will be deemed to be cash:
(1) any liabilities, as shown on the Company’s most recent consolidated balance sheet, of the Company or any Subsidiary (other than contingent liabilities and Indebtedness that are (x) by their terms subordinated to the Notes or any Note Guarantee, (y) unsecured, or (z) secured by a Lien on the assets or rights that are the subject of the Asset Sale, which Lien is junior in priority to the Liens securing the Notes or any Note Guarantee) that are assumed by the transferee of any such assets pursuant to a customary novation agreement that releases the Company or such Subsidiary from further liability;
(2) 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, to the extent of the cash received in that conversion; and
(3) any stock or assets of the kind referred to in clauses (2) or (4) of the next paragraph of this covenant. Within 365 days after the receipt of any Net Proceeds from an Asset Sale, the Company (or the applicable Restricted Subsidiary, as the case may be, uses the Net Cash Proceeds from such Asset Sale in the manner set forth in Section 4.08(b) hereof.
(b) Within 360 calendar days after the closing of any Asset Sale, the Company or such Restricted Subsidiary, as the case may apply such Net Proceedsbe, may, at its option:
(1i) reinvest an amount equal to repay Indebtedness and other Obligations under the Working Capital Facility and to correspondingly permanently reduce commitments with respect thereto;
(2) to acquire all or substantially all of the assets ofNet Cash Proceeds, or any portion thereof, from such Asset Sale in Telecommunications Assets or in Capital Stock ofof any Person engaged in the Telecommunications Business; and/or
(ii) apply an amount equal to such Net Cash Proceeds, another Permitted Businessor remaining Net Cash Proceeds, if, after giving effect to any such acquisition the permanent reduction of Capital Stock, Indebtedness of the Permitted Business is or becomes Company (x) other than Indebtedness to a Restricted Subsidiary of the Company) that is senior to or pari passu with the Notes or to the permanent ---- ----- reduction of Indebtedness or Preferred Stock of any Restricted Subsidiary of the Company and (y) a Guarantor;
(3) to make capital expenditures in a Permitted Business (other than Equity InterestsIndebtedness to, Indebtedness or current assets); or
(4) to acquire other assets (other than Equity Interests or Indebtedness) that are not classified as current assets under GAAP and that are used or useful in a Permitted Business. Pending the final application of any Net ProceedsPreferred Stock owned by, the Company may temporarily reduce borrowings under or another Restricted Subsidiary of the Working Capital Facility or otherwise invest the Company). Net Proceeds in any manner that is not prohibited by this Indenture. Any Net Cash Proceeds from any Asset Sales Sale that are not applied pursuant to clause (i) or invested as provided in (ii) above within 360 calendar days of the second paragraph closing of this covenant will such Asset Sale shall constitute “"Excess Proceeds.” When "
(c) If at any time the aggregate amount of Excess Proceeds calculated as of such date exceeds $5.0 5 million, the Company will, within five (5) days thereof, shall use the then-existing Excess Proceeds to make an offer, as described in Section 4.08(d) hereof (an "Asset Sale Offer Offer"), to purchase from all Holders and all holders of other senior secured Indebtedness that is pari passu Holders, on a pro rata basis, Notes in right of payment and as to security interests with the Notes with respect an aggregate principal amount equal to the assets that are the subject of such Asset Sale 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 then-existing Excess Proceeds in accordance with Proceeds, at a purchase price (the procedures set forth in Section 3.09 hereof. The offer price for the Notes in any "Asset Sale Offer will be Purchase Price") in cash equal to 100% 100 percent of the aggregate principal amount of the such Notes, plus accrued and unpaid interest interest, if any, to the Asset Sale Payment Date.
(d) Within 30 calendar days of the date the amount of Excess Proceeds exceeds $5 million, the Company, or the Trustee at the request and expense of the Company, shall send to each Holder by first class mail, postage prepaid, a notice prepared by the Company stating:
(i) that an Asset Sale Offer is being made pursuant to this Section 4.08, and that all Notes that are timely tendered will be accepted for payment, subject to proration in the event the amount of Excess Proceeds is less than the aggregate Asset Sale Purchase Price of all Notes timely tendered pursuant to the Asset Sale Offer;
(ii) the Asset Sale Purchase Price, the amount of Excess Proceeds that are available to be applied to purchase tendered Notes, and the date Notes are to be purchased pursuant to the Asset Sale Offer (the "Asset Sale Payment Date"), which date shall be a date no earlier than 30 calendar days nor later than 40 calendar days subsequent to the date such notice is mailed;
(iii) that any Notes or portions thereof not tendered or accepted for payment will continue to accrue interest;
(iv) that, unless the Company defaults in the payment of purchasethe Asset Sale Purchase Price with respect thereto, all Notes or portions thereof accepted for payment pursuant to the Asset Sale Offer shall cease to accrue interest from and after the Asset Sale Payment Date;
(v) that any Holder electing to have any Notes or portions thereof purchased pursuant to the Asset Sale Offer will be payable required to surrender such Notes, with the form entitled "Option of Holder to Elect Purchase" on the reverse of such Notes completed, to the Paying Agent at the address specified in cash. If any Excess Proceeds remain after consummation the notice, prior to the close of an business on the third Business Day preceding the Asset Sale OfferPayment Date;
(vi) that any Holder shall be entitled to withdraw such election if the Paying Agent receives, not later than the close of business on the second Business Day preceding the Asset Sale Payment Date, a telegram, telex, facsimile transmission or letter, setting forth the name of the Holder, the Company may use those Excess Proceeds for any purpose not otherwise prohibited by this Indenture. If the aggregate principal amount of Notes delivered for purchase, and a statement that such Holder is withdrawing such Holder's election to have such Notes or portions thereof purchased pursuant to the amount of other pari passu Indebtedness tendered into such Asset Sale Offer;
(vii) that any Holder electing to have Notes purchased pursuant to the Asset Sale Offer must specify the principal amount that is being tendered for purchase, which principal amount must be $1,000 or an integral multiple thereof;
(viii) that any Holder whose Notes are being purchased only in part will be issued new Notes equal in principal amount to the unpurchased portion of the Note or Notes surrendered, which unpurchased portion will be equal in principal amount to $1,000 or an integral multiple thereof; and
(ix) any other information necessary to enable any Holder to tender Notes and to have such Notes purchased pursuant to this Section 4.08.
(e) If the aggregate Asset Sale Purchase Price of the Notes surrendered by Holders exceeds the amount of Excess ProceedsProceeds as indicated in the notice required by Section 4.08(d) hereof, the Trustee shall select the Notes and such other pari passu Indebtedness to be purchased on a pro rata basisbasis based on the principal amount of the Notes tendered, with such adjustments as may be deemed appropriate by the Trustee, so that only Notes in denominations of $1,000 or integral multiples thereof shall be purchased.
(f) On the Asset Sale Payment Date, the Company shall (i) accept for payment any Notes or portions thereof properly tendered and selected for purchase pursuant to the Asset Sale Offer and Section 4.08(e) hereof; (ii) irrevocably deposit with the Paying Agent, by 10:00 a.m., New York City time, on such date, in immediately available funds, an amount equal to the Asset Sale Purchase Price in respect of all Notes or portions thereof so accepted; and (iii) deliver, or cause to be delivered, to the Trustee the Notes so accepted together with an Officers' Certificate listing the Notes or portions thereof tendered to the Company and accepted for payment. The Paying Agent shall promptly send by first class mail, postage prepaid, to each Holder of Notes or portions thereof so accepted for payment, payment in an amount equal to the Asset Sale Purchase Price for such Notes or portions thereof. The Company shall publicly announce the results of the Asset Sale Offer on or as soon as practicable after the Asset Sale Payment Date.
(g) Upon surrender and cancellation of a Note that is purchased in part, the Company shall promptly issue and the Trustee shall authenticate and deliver to the surrendering Holder of such Note a new Note equal in principal amount to the unpurchased portion of such surrendered Note; provided that each such new Note shall be in a principal amount of $1,000 or an integral multiple thereof.
(h) Upon completion of each an Asset Sale Offer (including payment of the Asset Sale Purchase Price for accepted Notes), any surplus Excess Proceeds that were the subject of such offer shall cease to be Excess Proceeds, and the Company may then use such amounts for general corporate purposes.
(i) The Company shall comply with the requirements of Section 14(e) under the Exchange Act and any other securities laws or regulations, to the extent such laws and regulations are applicable, in connection with the purchase of Notes pursuant to an Asset Sale Offer, the amount of Excess Proceeds will be reset at zero.
Appears in 2 contracts
Samples: Indenture (McLeodusa Inc), Indenture (McLeodusa Inc)
Limitation on Asset Sales. The Company will not, and will not permit any of its Restricted Subsidiaries Subsidiary to, consummate make an Asset Sale unless:
(1) Disposition, other than for fair market value and in the Company or the Restricted Subsidiaryordinary course of business, with an aggregate net book value as the case may be, receives consideration at the time of the Asset Sale at least equal to the Fair Market Value end of the assets or Equity Interests issued or sold or otherwise disposed of; and
(2) at least 85immediately preceding fiscal quarter greater than 10% of the consideration received in the Asset Sale by the Company or such Restricted Subsidiary is in the form of cash. For purposes of this Section 5.10, each of the following will be deemed to be cash:
(1) any liabilities, as shown on the Company’s most recent total consolidated balance sheetassets as of that date, of unless (i) the Company or any Subsidiary (other than contingent liabilities and Indebtedness that are (x) by their terms subordinated to the Notes or any Note Guarantee, (y) unsecured, or (z) secured by a Lien on the assets or rights that are the subject of the Asset Sale, which Lien is junior in priority to the Liens securing the Notes or any Note Guarantee) that are assumed by the transferee of any such assets pursuant to a customary novation agreement that releases the Company or such Subsidiary from further liability;
(2) any securities, notes or other obligations consideration 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, to the extent of the cash received in that conversion; and
(3) any stock or assets of the kind referred to in clauses (2) or (4) of the next paragraph of this covenant. Within 365 days after the receipt of any Net Proceeds from an Asset Sale, the Company (or the applicable a Restricted Subsidiary, as the case may be) may apply for such Net Proceeds:
disposition consists of at least 70% cash; provided, however, that for purposes of this provision (1) to repay Indebtedness i), the amount of any liabilities assumed by the transferee and any Notes or other Obligations under received by the Working Capital Facility Company or a Restricted Subsidiary which are immediately converted into cash shall be deemed to be cash, and (ii) the Company shall within 390 days after the date of such sale or sales, apply the Net Proceeds from such sale or sales in excess of an amount equal to correspondingly permanently reduce commitments 10% of the Company’s total consolidated assets to (A) a purchase of or an Investment in Additional Assets (other than cash or cash equivalents), (B) repayments, redemptions or repurchases of Indebtedness of the Company which ranks pari passu with respect thereto;
the Notes, and/or (2C) make an offer to acquire all or substantially all part of the assets of, Notes (or any Capital Stock of, another Permitted Business, if, after giving effect to any such acquisition of Capital Stock, the Permitted Business is or becomes (x) a Restricted Subsidiary Indebtedness of the Company which is pari passu with the Notes) at a purchase price equal to the principal amount thereof plus accrued and unpaid interest and Additional Interest, if any, thereon to the purchase date. In the event the Company shall be required to offer to redeem Notes pursuant to the provisions of this Section 6.05, the Company shall deliver to the Trustee an Officers’ Certificate specifying the Asset Sale Offer Amount (yas defined below) a Guarantorand the proposed date of purchase of the Notes by the Company (the “Asset Sale Purchase Date”). Not less than 30 days nor more than 60 days prior to the Asset Sale Purchase Date, the Company shall mail or cause the Trustee to mail (in the Company’s name and at its expense) an offer to redeem (the “Asset Sale Offer”) to each Holder of Notes. The redemption price shall be 100% of the principal amount of the Notes plus accrued interest to the redemption date and upon surrender to the Trustee or the Paying Agent, the Holders of such Notes shall be paid the redemption price. The Asset Sale Offer is to be and shall be mailed by the Company or the Trustee to the Holders of the Notes at their last registered address. The Asset Sale Offer shall remain open from the time of mailing until 5 days before the Asset Sale Purchase Date. The Notice shall contain all instructions and materials necessary to enable such Holders to tender Notes pursuant to the Asset Sale Offer. The Notice, which shall govern the terms of the Asset Sale Offer, shall state:
(a) that the Asset Sale Offer is being made pursuant to this Section 6.05;
(3b) to make capital expenditures in a Permitted Business (other than Equity Interests, Indebtedness or current assets); or
(4) to acquire other assets (other than Equity Interests or Indebtedness) that are not classified as current assets under GAAP and that are used or useful in a Permitted Business. Pending the final application of any Net Proceeds, the Company may temporarily reduce borrowings under the Working Capital Facility or otherwise invest the Net Proceeds in any manner that is not prohibited by this Indenture. Any Net Proceeds from Asset Sales that are not applied or invested as provided in the second paragraph of this covenant will constitute “Excess Proceeds.” When the aggregate amount of Excess Proceeds exceeds $5.0 million, Notes offered to be redeemed (the Company will, within five (5) days thereof, make an “Asset Sale Offer Amount”), the purchase price and the Asset Sale Purchase Date;
(c) that any Note not tendered or accepted for payment will continue to all Holders and all holders of other senior secured Indebtedness accrue interest;
(d) that is pari passu in right of any Note accepted for payment and as to security interests with the Notes with respect pursuant to the assets that are the subject of such Asset Sale containing provisions similar Offer shall cease to those set forth in this Indenture with respect accrue interest after the Asset Sale Purchase Date;
(e) that Holders electing to offers have a Note purchased pursuant to purchase or redeem with the proceeds of sales of assets to purchase the maximum amount of Notes and such other pari passu Indebtedness that may be purchased out of the Excess Proceeds in accordance with the procedures set forth in Section 3.09 hereof. The offer price for the Notes in any an Asset Sale Offer will be equal required to 100% surrender the Note, with the form entitled “Option of Holder to Elect Purchase” on the reverse side of the aggregate Note completed, to the Paying Agent at the address specified in the Notice at least five days before the Asset Sale Purchase Date;
(f) that Holders will be entitled to withdraw their election if the Paying Agent receives, not later than three days prior to the Asset Sale Purchase Date, a telegram, telex, facsimile transmission or letter setting forth the name of the Holder, the principal amount of the Notes, plus accrued Note the Holder delivered for purchase and unpaid interest a statement that such Holder is withdrawing his election to have the Note purchased;
(g) that if Notes and or Indebtedness of the Company which is pari passu with the Notes in a principal amount in excess of the Asset Sale Offer Amount are tendered pursuant to the date of purchase, and will be payable in cash. If any Excess Proceeds remain after consummation of an Asset Sale Offer, the Company may use those Excess Proceeds for any purpose not otherwise prohibited shall purchase Notes and Indebtedness of the Company which ranks pari passu with the Notes on a pro rata basis or by this Indenture. If lot or in such other manner as the aggregate Trustee shall deem fair and appropriate; and
(h) that Holders whose Notes were purchased only in part will be issued new Notes equal in principal amount to the unpurchased portion of the Notes and surrendered. On the amount of other pari passu Indebtedness Asset Sale Purchase Date, the Company shall (i) accept for payment Notes or portions thereof properly tendered into such pursuant to the Asset Sale Offer exceeds the amount of Excess Proceeds, the Trustee shall select the Notes and such other pari passu Indebtedness to be purchased (on a pro rata basis, by lot or in such other manner specified by the Trustee if required pursuant to paragraph (g) above), (ii) deposit with the Paying Agent money sufficient to pay the purchase price of all Notes or portions thereof so accepted and (iii) deliver to the Trustee Notes so accepted together with an Officers’ Certificate stating the Notes or portions thereof accepted for payment by the Company. Upon completion The Paying Agent shall promptly mail or deliver to Holders of each Notes so accepted, payment in an amount equal to the purchase price, and the Trustee shall promptly authenticate and mail or deliver to such Holders a new Note equal in principal amount of any unpurchased portion of the Note surrendered. Any Notes not so accepted shall be promptly mailed or delivered by the Company to the Holder thereof. The Company will publicly announce the results of the Asset Sale OfferOffer on or as soon after as practical the Asset Sale Purchase Date. For avoidance of doubt, any amount of Net Proceeds remaining after the Asset Sale Purchase Date shall be returned by the Paying Agent to the Company and may be used by the Company for any purpose not inconsistent with this Indenture. For purposes of this Section 6.05, the amount of Excess Proceeds will be reset at zeroTrustee shall act as the Paying Agent.
Appears in 2 contracts
Samples: Fifth Supplemental Indenture (Standard Pacific Corp /De/), Fifth Supplemental Indenture (Standard Pacific Corp /De/)
Limitation on Asset Sales. The Company will not, and will not permit any of its Restricted Subsidiaries to, consummate an Asset Sale unless:
(1) the Company (or the a Restricted Subsidiary, as the case may be, ) receives consideration at the time of the Asset Sale at least equal to the Fair Market Value fair market value of the assets or Equity Interests issued or sold or otherwise disposed of; and
(2) at least 8575% of the aggregate consideration received by the Company and its Restricted Subsidiaries in the Asset Sale by the Company or such Restricted Subsidiary and all other Asset Sales since June 4, 2015 is in the form of cash. For purposes of this Section 5.10provision, each of the following will be deemed to be cash:
(1a) any liabilities, as shown on the Company’s or any Restricted Subsidiary’s most recent consolidated balance sheet, of the Company or any such Restricted Subsidiary (other than contingent liabilities and Indebtedness liabilities that are (x) by their terms subordinated to the Notes or any Note Guarantee, (y) unsecured, or (z) secured by a Lien on the assets or rights that are the subject of the Asset Sale, which Lien is junior in priority to the Liens securing the Notes or any Note Subsidiary Guarantee) that are assumed by the transferee of any such assets pursuant to a customary novation agreement that releases the Company or such Restricted Subsidiary from further liability;
(2b) any securities, notes or other obligations received by the Company or any such Restricted Subsidiary from such transferee that are contemporaneouslyare, subject to ordinary settlement periodswithin 180 days after the Asset Sale, converted by the Company or such Restricted Subsidiary into cash, to the extent of the cash received in that conversion; and;
(3c) any stock Capital Stock or assets of the kind referred to in clauses (2II), (IV) or (4V) of the next paragraph following paragraph; and
(d) any Designated Non-cash Consideration received by the Company or any of its Restricted Subsidiaries in such Asset Sale having a fair market value, taken together with all other Designated Non-cash Consideration received pursuant to this covenantclause (d), not to exceed 5.0% of the Company’s Consolidated Net Tangible Assets (with the fair market value of each item of Designated Non-cash Consideration being measured at the time received and without giving effect to subsequent changes in value). Within 365 360 days after the receipt of any Net Proceeds from an Asset SaleSale (or within 180 days after such 360-day period in the event the Company or any Restricted Subsidiary enters into a binding commitment with respect to such application within such 360-day period), the Company (or the applicable any Restricted Subsidiary, as the case may be) Subsidiary may apply such those Net ProceedsProceeds at its option to any combination of the following:
(1I) to repay Indebtedness and other Obligations under the Working Capital Facility and to correspondingly permanently reduce commitments with respect theretorepay, redeem, repurchase or otherwise retire Senior Debt, including Notes;
(2II) to acquire all or substantially all of the properties or assets of, or of a Person primarily engaged in a Permitted Business;
(III) to acquire any Capital Stock of, another of a Person primarily engaged in a Permitted Business, Business if, after giving effect to any such acquisition of Capital Stock, the Permitted Business such Person is or becomes (x) a Restricted Subsidiary of the Company and (y) a GuarantorCompany;
(3IV) to make capital expenditures in a Permitted Business (other than Equity Interests, Indebtedness or current assets)expenditures; or
(4V) to acquire other long-term assets (other than Equity Interests or Indebtedness) that are not classified as current assets under GAAP and that are used or useful in a Permitted Business. Pending the final application of any Net Proceeds, the Company or any Restricted Subsidiary may temporarily reduce borrowings under the Working Capital Facility or otherwise invest the Net Proceeds in any manner that is not prohibited by this Indenture. Any Net Proceeds from Asset Sales that are not applied or invested as provided in the second preceding paragraph of this covenant will constitute “Excess Proceeds.” When On the 361st day after the Asset Sale (or, at the Company’s option, any earlier date or, as provided above, on the 541st day after the Asset Sale), if the aggregate amount of Excess Proceeds then exceeds $5.0 20.0 million, the Company will, within five (5) days thereof, will make an Asset Sale Offer to all Holders of Notes, and to all holders of other senior secured Pari Passu Indebtedness that is pari passu in right of payment and as to security interests with the Notes with respect to the assets that are the subject of such Asset Sale 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 then outstanding, to purchase the maximum principal amount of Notes and such other pari passu Pari Passu Indebtedness that may be purchased out of the Excess Proceeds in accordance with the procedures set forth in Section 3.09 hereofProceeds. The offer price for the Notes in any Asset Sale Offer will be equal to 100% of the aggregate principal amount of the Notes, plus accrued and unpaid interest interest, if any, to the Settlement Date, subject to the right of Holders on the relevant record date of purchaseto receive interest due on an interest payment date that is on or prior to the Settlement Date, and will be payable in cash. If any Excess Proceeds remain after consummation of an Asset Sale Offer, the Company or any Restricted Subsidiary may use those Excess Proceeds for any purpose not otherwise prohibited by this Indenture. If the aggregate principal amount of Notes and the amount of other pari passu Pari Passu Indebtedness tendered into such Asset Sale Offer exceeds the amount of Excess Proceeds, the respective aggregate amount of Notes and such Pari Passu Indebtedness to be purchased shall be determined on a pro rata basis, and the Trustee shall select the Notes and such other pari passu Indebtedness to be purchased in such aggregate amount on a pro rata basisbasis as set forth in Section 3.09(h) of the Indenture. Upon completion of each Asset Sale Offer, the amount of Excess Proceeds will be reset at zero. The Company will comply with the requirements of Rule 14e-1 under the Exchange Act and any other securities laws and regulations thereunder to the extent those laws and regulations are applicable in connection with each repurchase of Notes pursuant to an Asset Sale Offer. To the extent that the provisions of any securities laws or regulations conflict with the provisions of this Section 4.10, the Company will comply with the applicable securities laws and regulations and will not be deemed to have breached its obligations under the provisions of this Section 4.10 by virtue of such conflict.
Appears in 2 contracts
Samples: Indenture (Global Partners Lp), Indenture (Global Partners Lp)
Limitation on Asset Sales. The Company Borrower will not, and will not permit any of its Restricted Subsidiaries Subsidiary to, consummate an Asset Sale unlesssell, transfer, lease or otherwise dispose of any asset, including any Equity Interest, owned by it, nor will the Borrower permit any of the Subsidiaries to issue any additional Equity Interest in such Subsidiary, except:
(1a) (i) dispositions of inventory (including parcels in developed cemetery properties), used, obsolete, worn out or surplus equipment and Permitted Investments in the Company ordinary course of business and (ii) dispositions of property which the Borrower in good faith determines is no longer used or useful in the Restricted Subsidiary, as the case may be, receives consideration at the time conduct of the Asset Sale at least equal business of the Borrower and its Subsidiaries;
(b) sales, transfers and dispositions to the Fair Market Value of the assets Borrower or Equity Interests issued a Subsidiary; provided that any such sales, transfers or sold or otherwise disposed ofdispositions involving a Non-Guarantor shall be made in compliance with Section 6.10 regarding Restrictions on Transactions with Affiliates below; and
(2c) at least 85% Sale and Leaseback Transactions permitted by Section 6.04 hereof;
(d) dispositions of accounts receivable in connection with the collection or compromise thereof;
(e) to the extent constituting sales, transfers, leases or dispositions, the granting of Liens permitted by Section 6.03, the making of Investments permitted by Section 6.06, mergers, consolidations, liquidations and the sale of all or substantially all assets permitted by Section 6.05 and Restricted Payments permitted by Section 6.09; and
(f) sales, transfers, leases and other dispositions of assets (other than accounts receivable or inventory) the sale of which is not otherwise permitted by any other clause; provided that (i) the aggregate fair market value of all assets sold, transferred or otherwise disposed of in reliance upon this clause (f) shall not exceed $1,000,000,000, (ii) all sales, transfers, leases and other dispositions individually, or in a series of related transactions, for consideration in excess of $5,000,000 permitted pursuant to this clause (f) shall be made for fair value and (iii) the aggregate, non-cash consideration received in connection with all such sales shall not exceed $200,000,000 during the Asset Sale by the Company or such Restricted Subsidiary is in the form of cashterm hereof. For purposes of this Section 5.10and Section 6.06, each any transaction which is a “like kind exchange” under Section 1031 of the following will Code shall be deemed to be cash:
considered a disposition (1) any liabilities, as shown on if the Company’s most recent consolidated balance sheet, of the Company Borrower or any Subsidiary receives cash consideration upon the completion thereof) or an acquisition (other than contingent liabilities if the Borrower or a Subsidiary pays cash consideration upon the completion thereof) only upon the completion of such transaction, and Indebtedness that are (x) by their terms subordinated to the Notes or any Note Guarantee, (y) unsecured, or (z) secured by a Lien on the assets or rights that are the subject of the Asset Sale, which Lien is junior in priority to the Liens securing the Notes or any Note Guarantee) that are assumed by the transferee of any such assets pursuant to a customary novation agreement that releases the Company or such Subsidiary from further liability;
(2) 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, then only to the extent of the cash received in that conversion; and
(3) any stock or assets of the kind referred to in clauses (2) or (4) of the next paragraph of this covenant. Within 365 days after the receipt of any Net Proceeds from an Asset Sale, the Company (or the applicable Restricted Subsidiary, as the case may be) may apply such Net Proceeds:
(1) to repay Indebtedness and other Obligations under the Working Capital Facility and to correspondingly permanently reduce commitments with respect thereto;
(2) to acquire all or substantially all of the assets of, or any Capital Stock of, another Permitted Business, if, after giving effect to any such acquisition of Capital Stock, the Permitted Business is or becomes (x) a Restricted Subsidiary of the Company and (y) a Guarantor;
(3) to make capital expenditures in a Permitted Business (other than Equity Interests, Indebtedness or current assets); or
(4) to acquire other assets (other than Equity Interests or Indebtedness) that are not classified as current assets under GAAP and that are used or useful in a Permitted Business. Pending the final application of any Net Proceeds, the Company may temporarily reduce borrowings under the Working Capital Facility or otherwise invest the Net Proceeds in any manner that is not prohibited by this Indenture. Any Net Proceeds from Asset Sales that are not applied or invested as provided in the second paragraph of this covenant will constitute “Excess Proceedspaid.” When the aggregate amount of Excess Proceeds exceeds $5.0 million, the Company will, within five (5) days thereof, make an Asset Sale Offer to all Holders and all holders of other senior secured Indebtedness that is pari passu in right of payment and as to security interests with the Notes with respect to the assets that are the subject of such Asset Sale 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 amount of Notes and such other pari passu Indebtedness that may be purchased out of the Excess Proceeds in accordance with the procedures set forth in Section 3.09 hereof. The offer price for the Notes in any Asset Sale Offer will be equal to 100% of the aggregate principal amount of the Notes, plus accrued and unpaid interest to the date of purchase, and will be payable in cash. If any Excess Proceeds remain after consummation of an Asset Sale Offer, the Company may use those Excess Proceeds for any purpose not otherwise prohibited by this Indenture. If the aggregate principal amount of Notes and the amount of other pari passu Indebtedness tendered into such Asset Sale Offer exceeds the amount of Excess Proceeds, the Trustee shall select the Notes and such other pari passu Indebtedness to be purchased on a pro rata basis. Upon completion of each Asset Sale Offer, the amount of Excess Proceeds will be reset at zero.
Appears in 2 contracts
Samples: Credit Agreement (Service Corp International), Credit Agreement (Service Corporation International)
Limitation on Asset Sales. The Company will shall not, and will shall not permit any of its Restricted Subsidiaries to, consummate an Asset Sale unless:
(1) the Company or the such Restricted Subsidiary, as the case may be, Subsidiary receives consideration at the time of the such Asset Sale at least equal to the Fair Market Value fair market value of the assets or Equity Interests issued or sold or otherwise disposed of;
(2) such fair market value is determined by the Board of Directors of the Company; and
(23) at least 8575% of the consideration from such Asset Sale, together with all other Asset Sales since the Issue Date on a cumulative basis (including by way of relief from, or by any other Person assuming responsibility for, any liability, contingent or otherwise) received in the Asset Sale by the Company or such Restricted Subsidiary is in the form of cash, Cash Equivalents or readily marketable securities. For purposes of this Section 5.104.11, each of the following will shall be deemed to be cash:
(1a) any liabilities, liabilities (as shown on the Company’s or such Restricted Subsidiary’s most recent consolidated balance sheet, ) of the Company or any Restricted Subsidiary thereof (other than contingent liabilities and Indebtedness liabilities that are (x) by their terms subordinated to the Notes or any Note Guarantee, (y) unsecured, or (z) secured by a Lien on the assets or rights that are the subject of the Asset Sale, which Lien is junior in priority to the Liens securing the Notes or any Note GuaranteeNotes) 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;
(2b) 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 recipient thereof into cash, Cash Equivalents or readily marketable securities within 180 days after receipt thereof (to the extent of the cash cash, Cash Equivalents or readily marketable securities received in that conversion);
(c) Productive Assets; and
(3d) any stock Designated Noncash Consideration received by the Issuers or assets any Restricted Subsidiary in such Asset Sale having an aggregate fair market value, taken together with all other Designated Noncash Consideration received pursuant to this clause (d) that is at that time outstanding, not to exceed the greater of (i) $4.5 billion and (ii) 3.0% of Total Assets, with the kind referred fair market value of each item of Designated Noncash Consideration being measured at the time received and without giving effect to subsequent changes in clauses (2) or (4) of the next paragraph of this covenantvalue. Within 365 450 days after the receipt of any Net Proceeds from an Asset Sale, the Company (or the applicable a Restricted Subsidiary, as the case may be) Subsidiary thereof may apply such Net ProceedsProceeds at its option:
(1) to repay Indebtedness and other Obligations or otherwise retire debt under the Working Capital Facility and to correspondingly permanently reduce commitments with respect theretoCredit Facilities or any other Indebtedness of the Restricted Subsidiaries of the Company (other than Indebtedness represented solely by a guarantee of a Restricted Subsidiary of the Company);
(2) to acquire repay or otherwise retire unsecured Indebtedness of CCO Holdings, so long as a pro rata offer is made in cash in accordance with the procedures set forth in the next paragraph to all or substantially all holders of other unsecured Indebtedness issued by CCO Holdings at 100% of the assets of, or any Capital Stock of, another Permitted Business, if, after giving effect to any such acquisition of Capital Stock, the Permitted Business is or becomes (x) a Restricted Subsidiary of the Company and (y) a Guarantor;principal amount thereof; or
(3) to make capital expenditures invest in Productive Assets; provided that any such amount of Net Proceeds which the Company or a Permitted Business (other than Equity Interests, Indebtedness or current assets); or
(4) Restricted Subsidiary thereof has committed to acquire other assets (other than Equity Interests or Indebtedness) that are not classified as current assets under GAAP and that are used or useful invest in a Permitted BusinessProductive Assets within 450 days of the applicable Asset Sale may be invested in Productive Assets within two years of such Asset Sale. Pending the final application The amount of any Net Proceeds, the Company may temporarily reduce borrowings under the Working Capital Facility or otherwise invest the Net Proceeds in any manner that is not prohibited by this Indenture. Any Net Proceeds received from Asset Sales that are not applied or invested as provided in the second preceding paragraph of this covenant will shall constitute “Excess Proceeds.” When the aggregate amount of Excess Proceeds exceeds $5.0 250.0 million, the Company will, within five (5) days thereof, shall make an Asset Sale Offer to all Holders and all holders of other senior secured Indebtedness that is pari passu in right of payment and as to security interests equal priority with the Notes with respect to the assets that are the subject of such Asset Sale containing provisions similar to those set forth in this Indenture with respect to requiring 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 of equal priority that may be purchased out of the Excess Proceeds, which amount includes the entire amount of the Net Proceeds. For the avoidance of doubt, CCO Holdings may make an Asset Sale Offer at any time within 450 days after the receipt of any Net Proceeds in accordance from an Asset Sale, and/or prior to an Asset Sale (subject to the occurrence of an Asset Sale), or with the procedures set forth in Section 3.09 hereofrespect to any Excess Proceeds. The offer price for the Notes in any Asset Sale Offer will shall be payable in cash and equal to 100100.0% of the aggregate principal amount of the Notes, subject Notes plus accrued and unpaid interest and Special Interest, if any, to the date of purchase, and will be payable in cash. If any Excess Proceeds remain after consummation of an Asset Sale Offer, the Company may use those Excess Proceeds for any purpose not otherwise prohibited by this Indenture. If the aggregate principal amount of Notes and the amount such other Indebtedness of other pari passu Indebtedness equal priority tendered into such Asset Sale Offer exceeds the amount of Excess Proceeds, the Trustee shall select the Notes (on as nearly a pro rata basis as possible among the Notes subject to DTC procedures) and such other pari passu Indebtedness of equal priority to be purchased on a pro rata basis. If any Excess Proceeds remain after consummation of an Asset Sale Offer, then the Company or any Restricted Subsidiary thereof may use such remaining Excess Proceeds for any purpose not otherwise prohibited by this Supplemental Indenture. Upon completion of each any Asset Sale Offer, the amount of Excess Proceeds will shall be reset at zero. In the event that the Company shall be required to commence an offer to Holders to purchase Notes pursuant to this Section 4.11, it shall follow the procedures specified in Section 3.09.
Appears in 2 contracts
Samples: Fifth Supplemental Indenture (Cco Holdings LLC), Fourth Supplemental Indenture (Cco Holdings LLC)
Limitation on Asset Sales. (a) The Company will not, and will not permit any of its Restricted Subsidiaries Subsidiary to, consummate an make any Asset Sale unlessunless the following conditions are met:
(1) the Company or the Restricted SubsidiaryThe Asset Sale is for Fair Market Value, as determined in good faith by the case may be, receives consideration at the time Board of the Asset Sale at least equal to the Fair Market Value of the assets or Equity Interests issued or sold or otherwise disposed of; andDirectors.
(2) at At least 8575% of the consideration consists of cash or Cash Equivalents received in the Asset Sale by the Company or such Restricted Subsidiary is in the form of cashat closing. (For purposes of this Section 5.10clause (2), each (A) the assumption by the purchaser of the following will be deemed to be cash:
Debt or other obligations (1other than Subordinated Debt) any liabilities, as shown on the Company’s most recent consolidated balance sheet, of the Company or any a Restricted Subsidiary (other than contingent liabilities and Indebtedness that are (x) by their terms subordinated to the Notes or any Note Guarantee, (y) unsecured, or (z) secured by a Lien on the assets or rights that are the subject of the Asset Sale, which Lien is junior in priority to the Liens securing the Notes or any Note Guarantee) that are assumed by the transferee of any such assets pursuant to a customary novation agreement that releases agreement, and instruments or securities received from the Company or such Subsidiary from further liability;
(2) any securities, notes or other obligations received by the Company or any such Restricted Subsidiary from such transferee purchaser that are contemporaneouslypromptly, subject to ordinary settlement periodsbut in any event within 30 days of the closing, converted by the Company to cash or such Restricted Subsidiary into cashCash Equivalents, to the extent of the cash or Cash Equivalents actually so received, shall be considered cash received at closing and (B) any Designated Non-cash Consideration received by the Issuer or any of its Restricted Subsidiaries in such Asset Sale having an aggregate Fair Market Value, taken together with all other Designated Non-cash Consideration received pursuant to this clause (B) that conversion; andis at that time outstanding, not to exceed the greater of (x) 75.0 million and (y) 3.0% of Total Assets, at the time of the receipt of such Designated Non-cash Consideration (with the Fair Market Value of each item of Designated Non-cash Consideration being measured at the time received and without giving effect to subsequent changes in value).
(3) any stock or assets of the kind referred to in clauses (2) or (4) of the next paragraph of this covenant. Within 365 360 days after the receipt of any Net Cash Proceeds from an Asset Sale, the Net Cash Proceeds may be used
(A) to permanently repay secured Debt (and in the case of a revolving credit, permanently reduce the commitment thereunder by such amount), in each case owing to a Person other than the Company (or the applicable any Restricted Subsidiary, as the case may be) may apply such Net Proceeds:
(1B) to repay Indebtedness and other (i) reduce the Obligations under the Working Capital Facility and to correspondingly permanently reduce commitments with respect thereto;
Notes as provided under Section 3.01, (2ii) to acquire all repurchase, acquire, redeem, defease, discharge or substantially all of the assets of, or any Capital Stock of, another Permitted Business, if, after giving effect to any such acquisition of Capital Stock, the Permitted Business is or becomes (x) a Restricted Subsidiary of the Company and (y) a Guarantor;
(3) to make capital expenditures in a Permitted Business (other than Equity Interests, Indebtedness or current assets); or
(4) to acquire other assets (other than Equity Interests or Indebtedness) that are not classified as current assets under GAAP and that are used or useful in a Permitted Business. Pending the final application of any Net Proceeds, the Company may temporarily reduce borrowings under the Working Capital Facility or otherwise invest the Net Proceeds retire in any manner the Notes through open market purchases (provided that the purchase price is not prohibited by this Indenture. Any Net Proceeds from Asset Sales that are not applied or invested as provided in the second paragraph of this covenant will constitute “Excess Proceeds.” When the aggregate amount of Excess Proceeds exceeds $5.0 millionat least 100% (or, if issued with original issue discount, the Company willaccreted value) of the principal amount plus accrued interest), within five (5iii) days thereof, make an Asset Sale Offer to all Holders reduce Obligations under the Notes and all holders of other senior secured Indebtedness that is any Obligations under any Debt ranking pari passu in right of payment and as to security interests with the Notes with respect to the assets that are the subject of such Asset Sale 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 amount of Notes and such other (“pari passu Indebtedness that may be purchased out of the Excess Proceeds in accordance with the procedures set forth in Section 3.09 hereof. The offer price for the Notes in any Asset Sale Debt”) by making an Offer will be equal to 100% of the aggregate principal amount of the Notes, plus accrued and unpaid interest to the date of purchase, and will be payable in cash. If any Excess Proceeds remain after consummation of an Asset Sale Offer, the Company may use those Excess Proceeds for any purpose not otherwise prohibited by this Indenture. If the aggregate principal amount of Notes and the amount of other pari passu Indebtedness tendered into such Asset Sale Offer exceeds the amount of Excess Proceeds, the Trustee shall select Purchase the Notes and such other any pari passu Indebtedness Debt in the manner described in clause (4) below, or (iv) to be purchased on repurchase, acquire, redeem, defease, discharge or retire in any manner any Debt, Disqualified Stock or Preferred Stock of any Restricted Subsidiary that is not a pro rata basis. Upon completion of each Asset Sale OfferGuarantor, the amount of Excess Proceeds will be reset at zero.or
Appears in 2 contracts
Samples: Senior Notes Indenture (Black Knight Financial Services, Inc.), Senior Notes Indenture (Lender Processing Services, Inc.)
Limitation on Asset Sales. For purposes of Series T Notes, Section 4.12 of the Indenture is hereby replaced and superseded by the following covenant and the following covenant shall apply to the Series T Notes: The Company and the Subsidiary Guarantors will not, and the Company and the Subsidiary Guarantors will not permit any of its or their respective Restricted Subsidiaries to, consummate an any Asset Sale Sale, unless:
(1) the Company consideration received by the Company, the Subsidiary Guarantor or the such Restricted Subsidiary, as the case may be, receives consideration at the time of the Asset Sale Subsidiary is at least equal to the Fair Market Value fair market value of the assets or Equity Interests issued or sold or otherwise disposed ofof as determined by the Board of the Company, in good faith; and
(2) at least 8575% of the consideration received in the Asset Sale by the Company or such Restricted Subsidiary is in the form consists of cash. For , Cash Equivalents and/or real estate assets; provided that, with respect to the sale of one or more real estate properties, up to 75% of the consideration may consist of indebtedness of the purchaser of such real estate properties so long as such Indebtedness is secured by a first priority Lien on the real estate property or properties sold; and provided that, for purposes of this Section 5.10, each of clause (ii) the following will be deemed to be cashamount of:
(1A) any liabilities, as shown on the Company’s most recent consolidated balance sheet, of the Company or any Subsidiary Indebtedness (other than contingent liabilities Indebtedness subordinated in right of payment to the notes or a Subsidiary Guarantee) that is required to be repaid or assumed (and Indebtedness that are (xis either repaid or assumed by the transferee of the related assets) by their terms subordinated to the Notes or any Note Guarantee, (y) unsecured, or (z) virtue of such Asset Sale and which is secured by a Lien on the property or assets or rights that are the subject of the Asset Sale, which Lien is junior in priority to the Liens securing the Notes or any Note Guarantee) that are assumed by the transferee of any such assets pursuant to a customary novation agreement that releases the Company or such Subsidiary from further liability;sold; and
(2B) any securities, notes securities or other obligations received by the Company Company, any Subsidiary Guarantor or any such Restricted Subsidiary from such transferee that are contemporaneously, subject to ordinary settlement periods, immediately converted by the Company Company, the Subsidiary Guarantor or such Restricted Subsidiary into cashcash (or as to which the Company, any Subsidiary Guarantor or such Restricted Subsidiary has received at or prior to the extent consummation of the Asset Sale a commitment (which may be subject to customary conditions) from a nationally recognized investment, merchant or commercial bank to convert into cash received in that conversion; and
(3) any stock or assets within 90 days of the kind referred consummation of such Asset Sale and which are thereafter actually converted into cash within such 90-day period) will be deemed to be cash. In the event that the aggregate Net Cash Proceeds received by the Company, any Subsidiary Guarantors or such Restricted Subsidiaries from one or more Asset Sales occurring on or after the Closing Date in clauses any period of 12 consecutive months (2such 12 consecutive month period, an “Asset Sale Period”) or exceed 1% of Total Assets (4) determined as of the next paragraph date closest to the commencement of this covenant. Within 365 such Asset Sale Period for which a consolidated balance sheet of the Company and its Restricted Subsidiaries has been filed with the Securities and Exchange Commission or provided to the trustee pursuant to Section 4.2 of the Indenture), then during the period commencing 180 days prior to the commencement of such Asset Sale Period and running through the date that is 12 months after the receipt date Net Cash Proceeds so received exceeded 1% of any Total Assets, an amount equal to the Net Cash Proceeds from an received during such Asset Sale, the Company (Sale Period must have been or the applicable Restricted Subsidiary, as the case may must be) may apply such Net Proceeds:
(1) invested in or committed to repay Indebtedness be invested in, pursuant to a binding commitment subject only to reasonable, customary closing conditions, and providing an amount equal to the Net Cash Proceeds are, in fact, so invested, within an additional 180 days, (x) fixed assets and property (other Obligations under than notes, bonds, obligations and securities) which in the Working good faith reasonable judgment of the Board of the Company will immediately constitute or be part of a Related Business of the Company, Subsidiary Guarantor or such Restricted Subsidiary (if it continues to be a Restricted Subsidiary) immediately following such transaction, (y) Permitted Mortgage Investments, or (z) a controlling interest in the Capital Facility and to correspondingly permanently reduce commitments Stock of an entity engaged in a Related Business; provided that concurrently with respect thereto;an Investment specified in clause (z), such entity becomes a Restricted Subsidiary; or
(2) used to acquire all repay and permanently reduce Indebtedness outstanding under the Credit Facility (including that, in the case of a revolver or substantially all of the assets ofsimilar arrangement, or any Capital Stock of, another Permitted Business, if, after giving effect to any such acquisition of Capital Stock, the Permitted Business commitment is or becomes (x) a Restricted Subsidiary of the Company and (y) a Guarantor;
(3) to make capital expenditures in a Permitted Business (other than Equity Interests, Indebtedness or current assetspermanently reduced by such amount); or
(4) to acquire other assets (other than Equity Interests or Indebtedness) that are not classified as current assets under GAAP and that are used or useful in a Permitted Business. Pending the final application of any such Net ProceedsCash Proceeds as described above, the Company may temporarily reduce borrowings under the Working Capital Facility or otherwise invest the such Net Cash Proceeds in any manner that is not prohibited by this the Indenture. Any Net Cash Proceeds from Asset Sales that are not or were not applied or invested as provided in the second paragraph first sentence of this covenant paragraph (including any Net Cash Proceeds which were committed to be invested as provided in such sentence but which are not in fact invested within the time period provided) will be deemed to constitute “Excess Proceeds.” When Within 30 days following each date on which the aggregate amount of Excess Proceeds exceeds $5.0 25 million, the Company will, within five (5) days thereof, will make an Asset Sale Offer offer to all Holders and all purchase from the holders of the notes and holders of any of other senior secured Indebtedness that is of the Company ranking pari passu in right of payment and as to security interests with the Notes Securities from time to time outstanding with respect similar provisions requiring the Company to the assets that are the subject of such Asset Sale containing provisions similar to those set forth in this Indenture with respect to offers make an offer to purchase or redeem such Indebtedness with the proceeds from such Asset Sale, on a pro rata basis, an aggregate principal amount (or accreted value, as applicable) of sales of assets to purchase the maximum amount of Notes Securities and such other pari passu Indebtedness that may be purchased out of equal to the Excess Proceeds on such date, at a purchase price in accordance with the procedures set forth in Section 3.09 hereof. The offer price for the Notes in any Asset Sale Offer will be cash equal to 100% of the aggregate principal amount (or accreted value, as applicable) of the NotesSecurities and such other Indebtedness, plus plus, in each case, accrued and unpaid interest (if any) to the date Payment Date. To the extent that the aggregate amount of purchase, Securities and will be payable in cash. If any Excess Proceeds remain after consummation of other senior Indebtedness tendered pursuant to an Asset Sale OfferOffer is less than the Excess Proceeds, the Company may use those any remaining Excess Proceeds for any purpose not otherwise prohibited by this Indenturegeneral corporate purposes. If the aggregate principal amount (or accreted value, as applicable) of Notes Securities and the amount of such other pari passu Indebtedness tendered into such pursuant to an Asset Sale Offer exceeds the amount of Excess Proceeds, the Trustee shall select the Notes Securities to be purchased and such other pari passu Indebtedness to shall be purchased selected on a pro rata basis. Upon completion of each Asset Sale Offersuch Offer to Purchase, the amount of Excess Proceeds will shall be reset at zero. Notwithstanding, and without complying with, any of the foregoing provisions:
(1) the Company, the Subsidiary Guarantors and its and their respective Restricted Subsidiaries may, in the ordinary course of business, convey, sell, lease, transfer, assign or otherwise dispose of inventory acquired and held for resale in the ordinary course of business;
(2) the Company, the Subsidiary Guarantors and its and their respective Restricted Subsidiaries may convey, sell, lease, transfer, assign or otherwise dispose of assets pursuant to and in accordance with Article 5 and Section 4.13 of the Indenture;
(3) the Company, the Subsidiary Guarantors and its and their respective Restricted Subsidiaries may sell or dispose of damaged, worn out or other obsolete property in the ordinary course of business so long as such property is no longer necessary for the proper conduct of the business of the Company, the Subsidiary Guarantor or such Restricted Subsidiary, as applicable; and
(4) the Company, the Subsidiary Guarantors its and their respective Restricted Subsidiaries may exchange assets held by the Company, the Subsidiary Guarantor or a Restricted Subsidiary for one or more real estate properties and/or one or more Related Businesses of any Person or entity owning one or more real estate properties and/or one or more Related Businesses; provided that the Board of the Company has determined in good faith that the fair market value of the assets received by the Company are approximately equal to the fair market value of the assets exchanged by the Company. No transaction listed in clauses (1) through (4) inclusive shall be deemed to be an “Asset Sale.”
Appears in 2 contracts
Samples: Supplemental Indenture (Host Hotels & Resorts L.P.), Supplemental Indenture (Host Hotels & Resorts, Inc.)
Limitation on Asset Sales. The Company will not, and will not permit any of its Restricted Subsidiaries to, consummate an Asset Sale unless:
(1) the Company (or the a Restricted Subsidiary, as the case may be, ) receives consideration at the time of the Asset Sale at least equal to the Fair Market Value fair market value of the assets or Equity Interests issued or sold or otherwise disposed of; and
(2) at least 8550% of the aggregate consideration received by the Company and its Restricted Subsidiaries in the Asset Sale by and all other Asset Sales since the Company or such Restricted Subsidiary date of this Indenture is in the form of cashcash or Cash Equivalents. For purposes of this Section 5.10provision, each of the following will be deemed to be cash:
(1a) any liabilities, as shown on the Company’s or such Restricted Subsidiary’s most recent consolidated balance sheet, of the Company or any Subsidiary (other than contingent liabilities and Indebtedness liabilities that are (x) by their terms subordinated to the Notes or any Note Guarantee, (y) unsecured, or (z) secured by a Lien on the assets or rights that are the subject of the Asset Sale, which Lien is junior in priority to the Liens securing the Notes or any Note Subsidiary Guarantee) that are assumed by the transferee of any such assets pursuant to a customary novation an agreement that releases the Company or such Subsidiary from further liability;liability therefor; and
(2b) any securities, notes or other obligations received by the Company or any such Restricted Subsidiary from such transferee that are contemporaneouslyare, subject to ordinary settlement periodswithin 90 days after the Asset Sale, converted by the Company or such Restricted Subsidiary into cash, to the extent of the cash received in that conversion; and
(3) any stock or assets of the kind referred to in clauses (2) or (4) of the next paragraph of this covenant. Within 365 360 days after the receipt of any Net Proceeds from an Asset Sale, the Company (or the applicable any Restricted Subsidiary, as the case may be) Subsidiary may apply such those Net ProceedsProceeds at its option to any combination of the following:
(1I) to repay Indebtedness and other Obligations under repay, redeem, or repurchase Senior Debt, including the Working Capital Facility and to correspondingly permanently reduce commitments with respect theretoNotes;
(2II) to acquire all or substantially all of the properties or assets of, or any Capital Stock of, another of a Person primarily engaged in a Permitted Business, if, after giving effect to any such acquisition of Capital Stock, the Permitted Business is or becomes (x) a Restricted Subsidiary of the Company and (y) a Guarantor;
(3III) to acquire a majority of the Voting Stock of a Person primarily engaged a Permitted Business;
(IV) to make capital expenditures in a Permitted Business (other than Equity Interests, Indebtedness or current assets)expenditures; or
(4V) to acquire other long-term assets (other than Equity Interests or Indebtedness) that are not classified as current assets under GAAP and that are used or useful in a Permitted Business. The provisions of clauses (II), (III), (IV) or (V) of the preceding paragraph shall be deemed to be satisfied if a bona fide binding contract committing to make the acquisition or expenditure referred to therein is entered into by the Company or any of its Restricted Subsidiaries within the time period specified in the preceding paragraph and such Net Proceeds are subsequently applied in accordance with such contract within six months following the date such agreement is entered into. Pending the final application of any Net Proceeds, the Company or any Restricted Subsidiary may temporarily reduce borrowings under the Working Capital Facility or otherwise invest the Net Proceeds in any manner that is not prohibited by this Indenture. Any Net Proceeds from Asset Sales that are not applied or invested as provided in the second paragraph of this covenant preceding paragraphs will constitute “Excess Proceeds.” When 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 $5.0 50.0 million, the Company will, within five (5) days thereof, will make an Asset Sale Offer to all Holders of Notes, and to all holders of other senior secured Pari Passu Indebtedness that is pari passu in right of payment and as to security interests with the Notes with respect to the assets that are the subject of such Asset Sale 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 then outstanding, to purchase the maximum principal amount of Notes and such other pari passu Pari Passu Indebtedness that may be purchased out of the Excess Proceeds in accordance with the procedures set forth in Section 3.09 hereofProceeds. The offer price for the Notes in any Asset Sale Offer will be equal to 100% of the aggregate principal amount of the Notes, plus accrued and unpaid interest interest, if any, to the Settlement Date, subject to the right of Holders of record on the relevant record date of purchaseto receive interest due on an interest payment date that is on or prior to the Settlement Date, and will be payable in cash. If any Excess Proceeds remain after consummation of an Asset Sale Offer, the Company or any Restricted Subsidiary may use those Excess Proceeds for any purpose not otherwise prohibited by this Indenture. If the aggregate principal amount of Notes and the amount of other pari passu Pari Passu Indebtedness tendered into such Asset Sale Offer exceeds the amount of Excess Proceeds, the Trustee shall will select the Notes and such other pari passu Pari Passu Indebtedness to be purchased on a pro rata basis. Upon completion of each Asset Sale Offer, the amount of Excess Proceeds will be reset at zero. The Company will comply with the requirements of Rule 14e-1 under the Exchange Act and any other securities laws and regulations thereunder to the extent those laws and regulations are applicable in connection with each repurchase of Notes pursuant to an Asset Sale Offer. To the extent that the provisions of any securities laws or regulations conflict with the provisions of this Section 4.10, the Company will comply with the applicable securities laws and regulations and will not be deemed to have breached its obligations under such provisions by virtue of such conflict.
Appears in 2 contracts
Samples: Indenture (Chesapeake Midstream Partners Lp), Indenture (Chesapeake Midstream Partners Lp)
Limitation on Asset Sales. (a) The Company will shall not, and will shall not permit any of its Restricted Subsidiaries Subsidiaries, directly or indirectly, to, consummate an any Asset Sale Sale, unless:
(1i) the Company or such Restricted Subsidiary, as the case may be, receives consideration for such Asset Sale at least equal to the Fair Market Value (as evidenced by a Board Resolution delivered to the Trustee) of the Property or assets sold or otherwise disposed of;
(ii) at least 75 percent of the consideration received in respect of such Asset Sale by the Company or such Restricted Subsidiary, as the case may be, for such Property or assets consists of (a) Cash Proceeds and/or Telecommunications Assets; (b) shares of publicly-traded Voting Stock of any Person engaged in the Telecommunications Business in the United States; or (c) the assumption of Indebtedness of the Company or such Restricted Subsidiary (other than Indebtedness that is subordinated to the Notes) and the release of the Company or the Restricted Subsidiary, as the case may be, receives consideration at from all liability on the time of the Asset Sale at least equal to the Fair Market Value of the assets or Equity Interests issued or sold or otherwise disposed ofIndebtedness assumed; and
(2iii) at least 85% of the consideration received in the Asset Sale by the Company or such Restricted Subsidiary is in the form of cash. For purposes of this Section 5.10, each of the following will be deemed to be cash:
(1) any liabilities, as shown on the Company’s most recent consolidated balance sheet, of the Company or any Subsidiary (other than contingent liabilities and Indebtedness that are (x) by their terms subordinated to the Notes or any Note Guarantee, (y) unsecured, or (z) secured by a Lien on the assets or rights that are the subject of the Asset Sale, which Lien is junior in priority to the Liens securing the Notes or any Note Guarantee) that are assumed by the transferee of any such assets pursuant to a customary novation agreement that releases the Company or such Subsidiary from further liability;
(2) 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, to the extent of the cash received in that conversion; and
(3) any stock or assets of the kind referred to in clauses (2) or (4) of the next paragraph of this covenant. Within 365 days after the receipt of any Net Proceeds from an Asset Sale, the Company (or the applicable Restricted Subsidiary, as the case may be, uses the Net Cash Proceeds from such Asset Sale in the manner set forth in Section 4.08(b) hereof.
(b) Within 360 calendar days after the closing of any Asset Sale, the Company or such Restricted Subsidiary, as the case may apply such Net Proceedsbe, may, at its option:
(1i) reinvest an amount equal to repay Indebtedness and other Obligations under the Working Capital Facility and to correspondingly permanently reduce commitments with respect thereto;
(2) to acquire all or substantially all of the assets ofNet Cash Proceeds, or any portion thereof, from such Asset Sale in Telecommunications Assets or in Capital Stock ofof any Person engaged in the Telecommunications Business; and/or
(ii) apply an amount equal to such Net Cash Proceeds, another Permitted Businessor remaining Net Cash Proceeds, if, after giving effect to any such acquisition the permanent reduction of Capital Stock, Indebtedness of the Permitted Business is or becomes Company (x) other than Indebtedness to a Restricted Subsidiary of the Company) that is senior to or PARI PASSU with the Notes or to the permanent reduction of Indebtedness or Preferred Stock of any Restricted Subsidiary of the Company and (y) a Guarantor;
(3) to make capital expenditures in a Permitted Business (other than Equity InterestsIndebtedness to, Indebtedness or current assets); or
(4) to acquire other assets (other than Equity Interests or Indebtedness) that are not classified as current assets under GAAP and that are used or useful in a Permitted Business. Pending the final application of any Net ProceedsPreferred Stock owned by, the Company may temporarily reduce borrowings under or another Restricted Subsidiary of the Working Capital Facility or otherwise invest the Company). Net Proceeds in any manner that is not prohibited by this Indenture. Any Net Cash Proceeds from any Asset Sales Sale that are not applied pursuant to clause (i) or invested as provided in (ii) above within 360 calendar days of the second paragraph closing of this covenant will such Asset Sale shall constitute “"Excess Proceeds.” When "
(c) If at any time the aggregate amount of Excess Proceeds calculated as of such date exceeds $5.0 25 million, the Company will, within five (5) days thereof, shall use the then-existing Excess Proceeds to make an offer, as described in Section 4.08(d) hereof (an "Asset Sale Offer Offer"), to purchase from all Holders and all holders of other senior secured Indebtedness that is pari passu Holders, on a PRO RATA basis, Notes in right of payment and as to security interests with the Notes with respect an aggregate principal amount equal to the assets that are the subject of such Asset Sale 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 then-existing Excess Proceeds in accordance with Proceeds, at a purchase price (the procedures set forth in Section 3.09 hereof. The offer price for the Notes in any "Asset Sale Offer will be Purchase Price") in cash equal to 100% 100 percent of the aggregate principal amount of the such Notes, plus accrued and unpaid interest interest, if any, to the Asset Sale Payment Date.
(d) Within 30 calendar days of the date the amount of Excess Proceeds exceeds $25 million, the Company, or the Trustee at the request and expense of the Company, shall send to each Holder by first class mail, postage prepaid, a notice prepared by the Company stating:
(i) that an Asset Sale Offer is being made pursuant to this Section 4.08, and that all Notes that are timely tendered will be accepted for payment, subject to proration in the event the amount of Excess Proceeds is less than the aggregate Asset Sale Purchase Price of all Notes timely tendered pursuant to the Asset Sale Offer;
(ii) the Asset Sale Purchase Price, the amount of Excess Proceeds that are available to be applied to purchase tendered Notes, and the date Notes are to be purchased pursuant to the Asset Sale Offer (the "Asset Sale Payment Date"), which date shall be a date no earlier than 30 calendar days nor later than 40 calendar days subsequent to the date such notice is mailed;
(iii) that any Notes or portions thereof not tendered or accepted for payment will continue to accrue interest;
(iv) that, unless the Company defaults in the payment of purchasethe Asset Sale Purchase Price with respect thereto, all Notes or portions thereof accepted for payment pursuant to the Asset Sale Offer shall cease to accrue interest from and after the Asset Sale Payment Date;
(v) that any Holder electing to have any Notes or portions thereof purchased pursuant to the Asset Sale Offer will be payable required to surrender such Notes, with the form entitled "Option of Holder to Elect Purchase" on the reverse of such Notes completed, to the Paying Agent at the address specified in cash. If any Excess Proceeds remain after consummation the notice, prior to the close of an business on the third Business Day preceding the Asset Sale OfferPayment Date;
(vi) that any Holder shall be entitled to withdraw such election if the Paying Agent receives, not later than the close of business on the second Business Day preceding the Asset Sale Payment Date, a telegram, telex, facsimile transmission or letter, setting forth the name of the Holder, the Company may use those Excess Proceeds for any purpose not otherwise prohibited by this Indenture. If the aggregate principal amount of Notes delivered for purchase, and a statement that such Holder is withdrawing such Holder's election to have such Notes or portions thereof purchased pursuant to the amount of other pari passu Indebtedness tendered into such Asset Sale Offer;
(vii) that any Holder electing to have Notes purchased pursuant to the Asset Sale Offer must specify the principal amount that is being tendered for purchase, which principal amount must be $1,000 or an integral multiple thereof;
(viii) that any Holder whose Notes are being purchased only in part will be issued new Notes equal in principal amount to the unpurchased portion of the Note or Notes surrendered, which unpurchased portion will be equal in principal amount to $1,000 or an integral multiple thereof; and
(ix) any other information necessary to enable any Holder to tender Notes and to have such Notes purchased pursuant to this Section 4.08.
(e) If the aggregate Asset Sale Purchase Price of the Notes surrendered by Holders exceeds the amount of Excess ProceedsProceeds as indicated in the notice required by Section 4.08(d) hereof, the Trustee shall select the Notes and such other pari passu Indebtedness to be purchased on a pro rata basisPRO RATA basis based on the principal amount of the Notes tendered, with such adjustments as may be deemed appropriate by the Trustee, so that only Notes in denominations of $1,000 or integral multiples thereof shall be purchased.
(f) On the Asset Sale Payment Date, the Company shall (i) accept for payment any Notes or portions thereof properly tendered and selected for purchase pursuant to the Asset Sale Offer and Section 4.08(e) hereof; (ii) irrevocably deposit with the Paying Agent, by 10:00 a.m., New York City time, on such date, in immediately available funds, an amount equal to the Asset Sale Purchase Price in respect of all Notes or portions thereof so accepted; and (iii) deliver, or cause to be delivered, to the Trustee the Notes so accepted together with an Officers' Certificate listing the Notes or portions thereof tendered to the Company and accepted for payment. The Paying Agent shall promptly send by first class mail, postage prepaid, to each Holder of Notes or portions thereof so accepted for payment, payment in an amount equal to the Asset Sale Purchase Price for such Notes or portions thereof. The Company shall publicly announce the results of the Asset Sale Offer on or as soon as practicable after the Asset Sale Payment Date.
(g) Upon surrender and cancellation of a Note that is purchased in part, the Company shall promptly issue and the Trustee shall authenticate and deliver to the surrendering Holder of such Note a new Note equal in principal amount to the unpurchased portion of such surrendered Note; PROVIDED that each such new Note shall be in a principal amount of $1,000 or an integral multiple thereof.
(h) Upon completion of each an Asset Sale Offer (including payment of the Asset Sale Purchase Price for accepted Notes), any surplus Excess Proceeds that were the subject of such offer shall cease to be Excess Proceeds, and the Company may then use such amounts for general corporate purposes.
(i) The Company shall comply with the requirements of Section 14(e) under the Exchange Act and any other securities laws or regulations, to the extent such laws and regulations are applicable, in connection with the purchase of Notes pursuant to an Asset Sale Offer, the amount of Excess Proceeds will be reset at zero.
Appears in 2 contracts
Samples: Indenture (McLeodusa Inc), Indenture (McLeodusa Inc)
Limitation on Asset Sales. The Company will shall not, and will shall not permit any of its Restricted Subsidiaries to, consummate an Asset Sale unless:
(1) the Company or the such Restricted Subsidiary, as the case may be, Subsidiary receives consideration at the time of the such Asset Sale at least equal to the Fair Market Value fair market value of the assets or Equity Interests issued or sold or otherwise disposed of;
(2) such fair market value is determined by the Board of Directors of the Company; and
(23) at least 8575% of the consideration from such Asset Sale, together with all other Asset Sales since the Issue Date on a cumulative basis (including by way of relief from, or by any other Person assuming responsibility for, any liability, contingent or otherwise) received in the Asset Sale by the Company or such Restricted Subsidiary is in the form of cash, Cash Equivalents or readily marketable securities. For purposes of this Section 5.104.11, each of the following will shall be deemed to be cash:
(1a) any liabilities, liabilities (as shown on the Company’s or such Restricted Subsidiary’s most recent consolidated balance sheet, ) of the Company or any Restricted Subsidiary thereof (other than contingent liabilities and Indebtedness liabilities that are (x) by their terms subordinated to the Notes or any Note Guarantee, (y) unsecured, or (z) secured by a Lien on the assets or rights that are the subject of the Asset Sale, which Lien is junior in priority to the Liens securing the Notes or any Note GuaranteeNotes) 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;
(2b) 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 recipient thereof into cash, Cash Equivalents or readily marketable securities within 180 days after receipt thereof (to the extent of the cash cash, Cash Equivalents or readily marketable securities received in that conversion);
(c) Productive Assets; and
(3d) any stock Designated Noncash Consideration received by the Issuers or assets any Restricted Subsidiary in such Asset Sale having an aggregate fair market value, taken together with all other Designated Noncash Consideration received pursuant to this clause (d) that is at that time outstanding, not to exceed the greater of (i) $4.5 billion and (ii) 3.0% of Total Assets, with the kind referred fair market value of each item of Designated Noncash Consideration being measured at the time received and without giving effect to subsequent changes in clauses (2) or (4) of the next paragraph of this covenantvalue. Within 365 450 days after the receipt of any Net Proceeds from an Asset Sale, the Company (or the applicable a Restricted Subsidiary, as the case may be) Subsidiary thereof may apply an amount equal to the Applicable Percentage of such Net Proceeds (the “Applicable Proceeds”) at its option:
(1) to repay Indebtedness and other Obligations or otherwise retire debt under the Working Capital Facility and to correspondingly permanently reduce commitments with respect theretoCredit Facilities or any other Indebtedness of the Restricted Subsidiaries of the Company (other than Indebtedness represented solely by a guarantee of a Restricted Subsidiary of the Company);
(2) to acquire all repay or substantially all otherwise retire unsecured Indebtedness of the assets ofCompany, or any Capital Stock of, another Permitted Business, if, after giving effect so long as a pro rata offer is made in accordance with the procedures set forth in the next paragraph to all holders of other unsecured Indebtedness issued by the Company; or
(3) to invest in Productive Assets; provided that any such acquisition amount of Capital StockNet Proceeds which the Company or a Restricted Subsidiary thereof has committed to invest in Productive Assets within 450 days of the applicable Asset Sale may be invested in Productive Assets within two years of such Asset Sale; provided that (1) pending the final application of the amount of any such Applicable Proceeds pursuant to this Section 4.11, the Permitted Business is Company or becomes (x) a Restricted Subsidiary of the Company and may apply such Applicable Proceeds temporarily to reduce Indebtedness (y) a Guarantor;
(3) to make capital expenditures in a Permitted Business (other than Equity Interests, Indebtedness or current assets); or
(4) to acquire other assets (other than Equity Interests or Indebtedness) that are not classified as current assets under GAAP and that are used or useful in a Permitted Business. Pending the final application of any Net Proceeds, the Company may temporarily reduce borrowings including under the Working Capital Facility Credit Facilities) or otherwise invest the Net apply such Applicable Proceeds in any manner that is not prohibited by this the Indenture, and (2) the Company or a Restricted Subsidiary of the Company, as the case may be, may elect to invest in Productive Assets prior to receiving the Applicable Proceeds attributable to any given Asset Sale (provided that such investment shall be made no earlier than the earliest of notice to the Trustee of the relevant Asset Sale, execution of a definitive agreement for the relevant Asset Sale, and consummation of the relevant Asset Sale) and deem the amount so invested to be applied pursuant to and in accordance with clause (3) above with respect to such Asset Sale. Any If, with respect to any Asset Sale, at the expiration of the 450-day period with respect to such Asset Sale, there remains Applicable Proceeds in excess of the greater of $250.0 million and 1.0% of Consolidated Net Tangible Assets (such amount of Applicable Proceeds from Asset Sales that are not applied or invested as provided in equal to the second paragraph greater of this covenant will constitute $250.0 million and 1.0% of Consolidated Net Tangible Assets, “Excess Proceeds.” When the aggregate amount of Excess Proceeds exceeds $5.0 million”), the Company will, within five (5) days thereof, shall make an Asset Sale Offer offer to all Holders (an “Asset Sale Offer”) and all holders of other senior secured Indebtedness that is pari passu in right of payment and as to security interests equal priority with the Notes with respect to the assets that are the subject of such Asset Sale containing provisions similar to those set forth in this Indenture with respect to requiring 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 of equal priority that may be purchased out of the Excess Proceeds. For the avoidance of doubt, the Company may make an Asset Sale Offer at any time within 450 days after the receipt of any Net Proceeds in accordance from an Asset Sale, and/or prior to an Asset Sale (subject to the occurrence of an Asset Sale), or with the procedures set forth in Section 3.09 hereofrespect to any Excess Proceeds. The offer price for the Notes in any Asset Sale Offer will shall be payable in cash and equal to 100100.0% of the aggregate principal amount of the Notes, subject Notes plus accrued and unpaid interest and Special Interest, if any, to the date of purchase, and will be payable in cash. If any Excess Proceeds remain after consummation of an Asset Sale Offer, the Company may use those Excess Proceeds for any purpose not otherwise prohibited by this Indenture. If the aggregate principal amount of Notes and the amount such other Indebtedness of other pari passu Indebtedness equal priority tendered into such Asset Sale Offer exceeds the amount of Excess Proceeds, the Trustee shall select the Notes (on as nearly a pro rata basis as possible among the Notes subject to DTC procedures) and such other pari passu Indebtedness of equal priority to be purchased on a pro rata basis. If any Excess Proceeds remain after consummation of an Asset Sale Offer (such remaining Excess Proceeds, “Declined Excess Proceeds”), then the Company or any Restricted Subsidiary thereof may use such Declined Excess Proceeds for any purpose not otherwise prohibited by this Supplemental Indenture. Upon completion of each any Asset Sale Offer, the amount of Applicable Proceeds and Excess Proceeds will shall be reset at zero. In the event that the Company shall be required to commence an offer to Holders to purchase Notes pursuant to this Section 4.11, it shall follow the procedures specified in Section 3.09.
Appears in 2 contracts
Samples: Fourth Supplemental Indenture (Cco Holdings Capital Corp), First Supplemental Indenture (Cco Holdings Capital Corp)
Limitation on Asset Sales. The Company will not, and will not permit any of its Restricted Subsidiaries to, consummate an Asset Sale unless:
(1) the Company (or the Restricted Subsidiary, as the case may be, ) receives consideration at the time of the Asset Sale at least equal to the Fair Market Value of the assets or Equity Capital Interests issued or sold or otherwise disposed of; and
(2) at least 8575% of the consideration received in the Asset Sale by the Company or such Restricted Subsidiary is in the form of cashcash or Eligible Cash Equivalents. For purposes of this Section 5.10provision, each of the following will be deemed to be cash:
(1a) any liabilities, as shown on the Company’s most recent consolidated balance sheet, sheet of the Company or any Restricted Subsidiary (other than contingent liabilities and Indebtedness liabilities that are (x) by their terms subordinated to the Notes or any Note Guarantee, (y) unsecured, or (z) secured by a Lien on the assets or rights that are the subject of the Asset Sale, which Lien is junior in priority to the Liens securing the Notes or any Note Guarantee) that are assumed by the transferee of any such assets pursuant to a customary novation assignment and assumption agreement that releases the Company or such Restricted Subsidiary from further liability;
(2b) 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, cash within 180 days of their receipt to the extent of the cash received in that conversion; and
(3) any stock Designated Non-cash Consideration received by the Company or assets any of its Restricted Subsidiaries in such Asset Sale having an aggregate Fair Market Value, taken together with all other Designated Non-cash Consideration received pursuant to this clause (c) that is at that time outstanding, not to exceed the greater of (x) $20.0 million and (y) 1.0% of Total Assets, at the time of the kind referred receipt of such Designated Non-cash Consideration (with the Fair Market Value of each item of Designated Non-cash Consideration being measured at the time received and without giving effect to subsequent changes in clauses (2) or (4) of the next paragraph of this covenantvalue). Within 365 360 days after the receipt of any Net Cash Proceeds from an Asset Sale, the Company (or the applicable Restricted Subsidiary, as the case may be) may apply such Net ProceedsCash Proceeds at its option:
(1) to permanently repay Indebtedness and other Obligations Debt under the Working Capital Facility and Credit Agreement and, if the Obligation repaid is revolving credit Debt, to correspondingly permanently reduce commitments with respect thereto;
(2) in the case of an Asset Sale by a Restricted Subsidiary that is not a Guarantor, to repay, prepay, defease, redeem, purchase or otherwise retire (and to permanently reduce commitments with respect thereto in the case of revolving borrowings) Debt of such Restricted Subsidiary or any other Restricted Subsidiary that is not a Guarantor;
(3) to permanently reduce obligations under any other Debt of the Company (other than any Redeemable Capital Interests or subordinated Debt) or Debt of a Restricted Subsidiary (other than any Redeemable Capital Interests or guarantor subordinated Debt) (in each case other than Debt owed to the Company or an Affiliate of the Company); provided that the Company shall equally and ratably reduce obligations under the Notes as provided under Section 3.7, through open market purchases (to the extent such purchases are at or above 100% of the principal amount thereof) or by making an offer (in accordance with the procedures set forth below for an Offer to Purchase) to all holders to purchase their Notes at 100% of the principal amount thereof, plus the amount of accrued but unpaid interest, if any, on the amount of Notes that would otherwise be prepaid;
(4) to acquire all or substantially all of the assets of, or any Capital Stock Interests of, another Permitted Business, if, after giving effect to any such acquisition of Capital StockInterests, the Permitted Business is or becomes (x) a Restricted Subsidiary of the Company and (y) a GuarantorCompany;
(35) to make a capital expenditures expenditure in or that is used or useful in a Permitted Business (other than Equity Interestsor to make expenditures for maintenance, Indebtedness repair or current assets); orimprovement of existing properties and assets in accordance with the provisions of this Indenture;
(46) to acquire other assets (other than Equity Interests or Indebtedness) that are not classified as current assets under GAAP and that are used or useful in a Permitted Business. Pending ; or
(7) any combination of the foregoing; provided that pending the final application of any such Net ProceedsAvailable Cash Proceeds in accordance with clauses (1) through (7) above, the Company and its Restricted Subsidiaries may temporarily reduce borrowings under the Working Capital Facility Debt or otherwise invest the such Net Cash Proceeds in any manner that is not prohibited by this Indenture; provided further that a binding commitment shall be treated as a permitted application of the Net Cash Proceeds from the date of such commitment so long as the Company or such other Restricted Subsidiary enters into such commitment with the good faith expectation that such Net Cash Proceeds will be applied to satisfy such commitment within 360 days of such commitment (an “Acceptable Commitment”), it being understood that if an Acceptable Commitment is later cancelled or terminated for any reason before such Net Cash Proceeds are applied, then all such Net Cash Proceeds not so applied shall constitute Excess Proceeds. Any Subject to the next two succeeding paragraphs, any Net Cash Proceeds from Asset Sales that are not applied or invested as provided in the second preceding paragraph of this covenant Section 4.10 will constitute “Excess Proceeds.” When the aggregate amount of Excess Proceeds exceeds $5.0 20.0 million, within thirty days thereof, the Company will, within five (5) days thereof, will make an Asset Sale Offer to Purchase to all Holders of Notes (including any Permitted Additional Note Obligations), and to all holders of other senior secured Indebtedness that is Debt ranking pari passu in right of payment and as to security interests with the Notes with respect to the assets that are the subject of such Asset Sale containing provisions similar to those set forth in this Indenture with respect to offers assets sales, equal to purchase or redeem with the proceeds of sales of assets to purchase the maximum amount of Notes and such other pari passu Indebtedness that may be purchased out of the Excess Proceeds in accordance with the procedures set forth in Section 3.09 hereofProceeds. The offer price for the Notes in any Asset Sale Offer to Purchase will be equal to 100% of the aggregate principal amount of the Notes, plus accrued and unpaid interest to the date of purchase, and will be payable in cash. If any Excess Proceeds remain after consummation of an Asset Sale OfferOffer to Purchase, the Company may use those Excess Proceeds for any purpose not otherwise prohibited by this Indenture. If the aggregate principal amount of Notes (including any Permitted Additional Note Obligations) and the amount of other pari passu Indebtedness debt tendered into such Asset Sale Offer to Purchase exceeds the amount of Excess Proceeds, the Trustee shall will select the Notes and such other pari passu Indebtedness (including any Permitted Additional Note Obligations) to be purchased on a pro rata basisbasis among each series. Upon completion of each Asset Sale OfferOffer to Purchase, the amount of Excess Proceeds will be reset at zero. The Company will comply with the requirements of Rule 14e-1 under the Exchange Act and any other applicable securities laws and regulations thereunder to the extent those laws and regulations are applicable in connection with each repurchase of Notes pursuant to an Offer to Purchase. To the extent that the provisions of any securities laws or regulations conflict with the Asset Sale provisions of this Indenture, the Company will comply with the applicable securities laws and regulations and will not be deemed to have breached its obligations under the Asset Sale provisions of this Indenture by virtue of such compliance.
Appears in 2 contracts
Samples: Indenture (Ryerson Holding Corp), Indenture (Ryerson International Material Management Services, Inc.)
Limitation on Asset Sales. (a) The Company will shall not, and will shall not permit any of its Restricted Subsidiaries Subsidiary to, consummate an Asset Sale unless:
(1i) the Company (or the Restricted Subsidiary, as the case may be, ) receives consideration at the time of the such Asset Sale at least equal to the Fair Market Value of the assets or Equity Interests issued or sold or otherwise disposed of, or Restricted Subsidiary Equity Interests issued, in such Asset Sale; and
(2ii) at least 8575.0% of the consideration therefor received in the Asset Sale by the Company or such Restricted Subsidiary is in the form of cash. For cash or Cash Equivalents; provided, however, that, for purposes of the provisions set forth in this Section 5.10clause (ii) and for no other purpose, each the amount of the following will be deemed to be cash:
(1) any liabilities, liabilities (as shown on the Company’s or such Restricted Subsidiary’s most recent consolidated balance sheet, ) of the Company or any Restricted Subsidiary (other than contingent liabilities and Indebtedness liabilities that are (x) by their terms subordinated to the Notes or any Note Guarantee, (y) unsecured, or (z) secured by a Lien on the assets or rights that are the subject of the Asset Sale, which Lien is junior in priority to the Liens securing the Notes or any Note GuaranteeGuarantee thereof) that are assumed by the transferee of any such assets pursuant to a customary novation agreement that releases the Company or such Restricted Subsidiary from further liability;
liability (or are otherwise extinguished in connection with the transactions relating to such Asset Sale), (2) 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 any Restricted Subsidiary into cashcash or Cash Equivalents within 180 days of receipt, to the extent of the cash or Cash Equivalents received in that conversion; and
and (3) the Fair Market Value of any stock property or assets received (including any Capital Stock of the kind referred any Person that shall be a Restricted Subsidiary following receipt thereof) that are used or useful in any Related Business, in each case shall be deemed to in clauses (2) or (4) of the next paragraph of this covenantbe cash. Within 365 days after the Company or any Restricted Subsidiary’s receipt of such Net Cash Proceeds, the Company or such Restricted Subsidiary may apply such Net Cash Proceeds, at its option:
(1) to prepay or otherwise pay or repay, purchase, redeem, defease, discharge, cash-collateralize or otherwise acquire or retire (A) Secured Indebtedness of the Company or any Guarantor (and, if such Indebtedness is under a revolving credit facility, to correspondingly reduce commitments with respect thereto), (B) Senior Indebtedness (other than Secured Indebtedness) of the Company or any Guarantor (and, if such Indebtedness is under a revolving credit facility, to correspondingly reduce commitments with respect thereto); provided, however, that if any such Senior Indebtedness described in this clause (B) other than the Notes are repaid with such Net Cash Proceeds, the Company shall equally and ratably reduce the Notes through open-market purchases (provided, however, that such purchases are at or above 100% of the principal amount thereof), by redeeming Notes in accordance with Section 3.07 or by making an offer (in accordance with the procedures set forth below for an Asset Sale Offer) to all Holders to purchase at a purchase price equal to 100% of the principal amount thereof, plus accrued and unpaid interest, the pro rata principal amount of the Notes or (C) Indebtedness of a Restricted Subsidiary that is not a Guarantor, in the case of each of clause (A), (B) and (C), other than Indebtedness owed to the Company or its Affiliates;
(2) to make an Investment in any one or more businesses (provided, however, that if such Investment is in the form of the acquisition of Capital Stock of a Person, such acquisition results in such Person becoming a Restricted Subsidiary if it is not already a Restricted Subsidiary), assets, or property or capital expenditures (including refurbishments), in each case used or useful in a Related Business; or
(3) to make a combination of any prepayments or other payments or repayments, purchases, redemptions, defeasances, discharges, cash collateralizations or other acquisitions or retirements and any Investments permitted by the foregoing clauses (1) and (2). In the case of an Investment contemplated by clause (2) above or clause (3) above, a binding commitment shall be treated as a permitted application of the Net Cash Proceeds from the date of such commitment; provided, however, that in the event such binding commitment is later canceled or terminated for any reason before such Net Cash Proceeds are so applied, the Company or Restricted Subsidiary enters into another binding commitment (a “Second Commitment”) to make an Investment permitted by such clause (2) or clause (3) within nine months of such cancellation or termination of the prior binding commitment; provided further, however, that the Company and its Restricted Subsidiaries may only enter into a Second Commitment under the foregoing provision one time with respect to each Asset Sale.
(b) If, on the 366th day after receipt by the Company or a Restricted Subsidiary of Net Cash Proceeds with respect to an Asset Sale, any such Net Cash Proceeds have not been applied as permitted by Section 4.06(a) (such Net Cash Proceeds received and not so applied being “Excess Proceeds” and the date of such 366th day being an “Asset Sale Offer Trigger Date”), the Company or one or more Restricted Subsidiaries shall make an offer to all Holders and, if required or permitted by the terms of any Senior Indebtedness, to the holders of such Senior Indebtedness, to purchase (the “Asset Sale Offer”), on a date not less than 30 nor more than 60 days following the applicable Asset Sale Offer Trigger Date, from all Holders and holders of such Senior Indebtedness on a pro rata basis (or as nearly pro rata as practicable) based on the accreted value or principal amount, as applicable, of the Notes and such Senior Indebtedness tendered pursuant to such Asset Sale Offer, that amount of Notes and such Senior Indebtedness equal to the applicable Excess Proceeds (minus any federal, state, provincial, foreign and local taxes payable as a result of the transfer or deemed transfer of funds from the entity that made the Asset Sale to the entity that is making such Asset Sale Offer) at a price equal to 100.0% of the principal amount of the Notes to be purchased, plus accrued and unpaid interest thereon, if any, to but excluding the date of purchase (or, in respect of such Senior Indebtedness, the price provided for by the terms of such Senior Indebtedness); provided, however, that if at any time any non-cash consideration received by the Company or any Restricted Subsidiary, as the case may be) may apply such Net Proceeds:
, in connection with any Asset Sale is converted into or sold or otherwise disposed of for cash (1) to repay Indebtedness and other Obligations under the Working Capital Facility and to correspondingly permanently reduce commitments than interest received with respect thereto;
(2) to acquire all or substantially all of the assets of, or any Capital Stock of, another Permitted Business, if, after giving effect to any such acquisition of Capital Stocknon-cash consideration), the Permitted Business is or becomes (x) a Restricted Subsidiary then, solely for purposes of the Company and (y) a Guarantor;
(3) to make capital expenditures in a Permitted Business (other than Equity Interests, Indebtedness or current assets); or
(4) to acquire other assets (other than Equity Interests or Indebtedness) that are not classified as current assets under GAAP and that are used or useful in a Permitted Business. Pending the final application definition of any Net Cash Proceeds, the Company may temporarily reduce borrowings under the Working Capital Facility such conversion or otherwise invest disposition shall be deemed to constitute an Asset Sale, and the Net Cash Proceeds in any manner that is not prohibited by this Indenture. Any Net Proceeds from Asset Sales that are not thereof shall be applied or invested as provided in the second paragraph of this covenant will constitute “Excess Proceeds.” When the aggregate amount of Excess Proceeds exceeds $5.0 million, the Company will, within five (5) days thereof, make an Asset Sale Offer to all Holders and all holders of other senior secured Indebtedness that is pari passu in right of payment and as to security interests with the Notes with respect to the assets that are the subject of such Asset Sale 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 amount of Notes and such other pari passu Indebtedness that may be purchased out of the Excess Proceeds in accordance with the procedures set forth in provisions of this Section 3.09 hereof4.06 governing the application of the Net Cash Proceeds from an Asset Sale. The offer price for the If Holders do not tender Notes in any Asset Sale Offer will be equal to 100% of the an aggregate principal amount of the Notes, plus accrued and unpaid interest at least equal to the date of purchase, and will be payable in cash. If any applicable Excess Proceeds remain after consummation of an for purchase in connection with any Asset Sale Offer, the Company and the Restricted Subsidiaries may use those the portion of the Excess Proceeds not used to purchase Notes for any purpose not otherwise prohibited by this Indenture. If the aggregate principal amount of Notes and the amount of other pari passu Indebtedness tendered into such Asset Sale Offer exceeds the amount of Excess Proceeds, the Trustee shall select the Notes and such other pari passu Indebtedness to be purchased on a pro rata basis. Upon completion of each Asset Sale Offer, the Excess Proceeds shall be reduced by the amount of the Asset Sale Offer. Notwithstanding the occurrence of an Asset Sale Offer Trigger Date, the Company and the Restricted Subsidiaries may defer the Asset Sale Offer until there is an aggregate unutilized Excess Proceeds will of at least $15.0 million resulting from one or more Asset Sales (at which time, the entire unutilized Excess Proceeds, and not just the amount in excess of $15.0 million, shall be reset applied as required pursuant to this Section 4.06). The Company and the Restricted Subsidiaries may satisfy the obligations set forth in this Section 4.06(b) with respect to any Net Cash Proceeds from an Asset Sale by making an Asset Sale Offer with respect to such Net Cash Proceeds prior to an applicable Asset Sale Offer Trigger Date. If the date on which a Note is purchased pursuant to an Asset Sale Offer is on or after an interest record date and on or before the related interest payment date, any accrued and unpaid interest on that Note shall be paid to the Person that was, at zerothe close of business on such record date, the Holder of that Note, and no additional interest for the period to which that interest record date relates shall be payable, with respect to that Note, to the Person who tendered that Note pursuant to the Asset Sale Offer.
(c) Each Asset Sale Offer shall be mailed (or otherwise sent in accordance with applicable procedures of the Depository) to the record Holders as shown on the register of Holders within 30 days following the Asset Sale Offer Trigger Date, with a copy to the Trustee, and shall comply with the procedures set forth in this Indenture. Upon receiving notice of the Asset Sale Offer, Holders may elect to tender their Notes in whole or in part in amounts equal to $2,000 or integral multiples of $1,000 in excess thereof in exchange for cash. To the extent Holders properly tender Notes in an amount exceeding the Excess Proceeds, the tendered Notes shall be purchased on a pro rata basis (or as nearly pro rata as practicable) based on the amount of Notes tendered. An Asset Sale Offer shall remain open for a period of 20 Business Days or such longer period as may be required by law. The Company shall comply with the requirements of Rule 14e-1 under the Exchange Act and any other securities laws and regulations thereunder to the extent such laws and regulations are applicable in connection with the repurchase of Notes pursuant to an Asset Sale Offer. To the extent that the provisions of any securities laws or regulations conflict with the requirements of this Section 4.06, the Company shall comply with the applicable securities laws and regulations and shall not be deemed to have breached its obligations under this Section 4.06 by virtue thereof.
Appears in 2 contracts
Samples: Indenture (Pra Group Inc), Indenture (Pra Group Inc)
Limitation on Asset Sales. The Company will not, and will not permit any of its Restricted Subsidiaries to, consummate an Asset Sale unless:
(1) the Company (or the such Restricted Subsidiary, as the case may be, ) receives consideration at the time of the Asset Sale at least equal to the Fair Market Value fair market value of the assets or Equity Interests issued or sold or otherwise disposed of; and
(2) at least 8575% of the consideration received in the Asset Sale by the Company or such Restricted Subsidiary is in the form of cashcash or Cash Equivalents. For purposes of this Section 5.10clause (2) above, each the amount of the following will be deemed to be cash:
(1i) any liabilities, liabilities other than contingent liabilities (as shown on the Company’s or the applicable Restricted Subsidiary’s most recent consolidated balance sheet, sheet or in the notes thereto) of the Company or any Restricted Subsidiary (other than contingent liabilities and Indebtedness that are (x) by their terms subordinated to the Notes or any Note Guarantee, (y) unsecured, or (z) secured by a Lien on the assets or rights that are the subject of the Asset Sale, which Lien is junior in priority to the Liens securing the Notes or any Note GuaranteeGuarantees) that are assumed by the transferee of any such assets pursuant to a customary novation agreement that releases and from which the Company or such Subsidiary from further liability;
and all Restricted Subsidiaries have been validly released by the applicable creditor(s) in writing, (2ii) any securities, notes or other obligations debt securities 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, cash (to the extent of the cash received in that conversion; and
received) within 90 days following the closing of such Asset Sale, (3iii) any stock or assets of the kind referred to described in clauses clause (2) or (43) below, and (iv) any Designated Non-cash Consideration received by the Company or any of its Restricted Subsidiaries in such Asset Sale having an aggregate fair market value (as determined in good faith by the Board of Directors of the next paragraph Company), taken together with all other Designated Non-cash Consideration received pursuant to this clause (iv) that is at that time outstanding, not to exceed the greater of (x) $75.0 million and (y) an amount equal to 2.0% of Total Assets of the Company on the date on which such Designated Non-cash Consideration is received (with the fair market value of each item of Designated Non-cash Consideration being measured at the time received without giving effect to subsequent changes in value), shall be deemed to be cash for purposes of this covenantparagraph and for no other purpose. Within 365 days after the receipt of any Net Proceeds from an Asset Sale, the Company (or the applicable such Restricted Subsidiary, as the case may be) , may apply such those Net ProceedsProceeds at its option:
(1) (i) to repay reduce Obligations under Secured Indebtedness of the Company or any Restricted Subsidiary, (ii) to reduce Obligations under Indebtedness of a Restricted Subsidiary that is not a Guarantor (other than Indebtedness owed to the Company or another Restricted Subsidiary), (iii) to reduce Obligations under any Indebtedness outstanding under the Credit Facilities (other than Subordinated Indebtedness) or (iv) to reduce Indebtedness of the Company that ranks pari passu in right of payment with the Notes or Indebtedness of a Guarantor that ranks pari passu in right of payment with such Guarantor’s Guarantee of the Notes (provided that if the Company shall so reduce Obligations under Indebtedness that ranks pari passu in right of payment with the Notes or the Guarantees (other than Indebtedness specified in clauses (i) through (iii) above), it will equally and other ratably reduce Obligations under the Working Capital Facility Notes through open-market purchases (to the extent such purchases are at or above 100% of the principal amount thereof) or by causing the Company to make an Asset Sale Offer (in accordance with the procedures set forth below in this Section 4.10) to all Holders of Notes to purchase at a purchase price equal to 100% of the principal amount thereof, plus accrued and unpaid interest and Additional Interest, if any, on the pro rata principal amount of Notes), in each case other than Indebtedness owed to correspondingly permanently reduce commitments with respect theretoParent or any Restricted Subsidiary;
(2) to acquire all an investment in (A) any one or substantially all more businesses; provided that such investment in any business is in the form of the assets of, or any Capital Stock of, another Permitted Business, if, after giving effect to any such acquisition of Capital Stock, Stock and results in the Permitted Business is Company or becomes (x) a Restricted Subsidiary owning an amount of the Company Capital Stock of such business such that such business constitutes a Restricted Subsidiary, (B) capital expenditures or (C) other non-current assets, in each of (A), (B) and (y) a Guarantor;
(3) to make capital expenditures in a Permitted Business (other than Equity InterestsC), Indebtedness or current assets); or
(4) to acquire other assets (other than Equity Interests or Indebtedness) that are not classified as current assets under GAAP and that are used or useful in a Permitted Business;
(3) to an investment in (A) any one or more businesses; provided that such investment in any business is in the form of the acquisition of Capital Stock and results in the Company or a Restricted Subsidiary owning an amount of the Capital Stock of such business such that such business constitutes a Restricted Subsidiary, (B) properties or (C) assets that, in each of (A), (B) and (C), replace the businesses, properties and assets that are the subject of such Asset Sale; and or
(4) to make any Seed Capital Investment. Any Net Proceeds from an Asset Sale not applied or invested in accordance with the preceding paragraph within 365 days from the date of the receipt of such Net Proceeds shall constitute “Excess Proceeds”; provided that if during such 365-day period the Company or a Restricted Subsidiary enters into a definitive binding agreement committing it to apply such Net Proceeds in accordance with the requirements of clause (2) or (3) of the immediately preceding paragraph after such 365th day, such 365-day period will be extended with respect to the amount of Net Proceeds so committed for a period not to exceed 180 days until such Net Proceeds are required to be applied in accordance with such agreement (or, if earlier, until termination of such agreement). When the aggregate amount of Excess Proceeds exceeds $25.0 million, the Company or the applicable Restricted Subsidiary will make an offer (an “Asset Sale Offer”) to all Holders of Notes and Indebtedness that ranks pari passu with the Notes and contains provisions similar to those set forth in this Indenture with respect to offers to purchase with the proceeds of sales of assets to purchase, on a pro rata basis, the maximum principal amount of Notes and such other Indebtedness that ranks pari passu with the Notes that may be purchased out of the Excess Proceeds. The offer price in any Asset Sale Offer will be equal to 100% of the principal amount thereof, plus accrued and unpaid interest and Additional Interest, if any, to the date of purchase, and will be payable in cash. Pending the final application of any Net Proceeds, the Company or the applicable Restricted Subsidiary may temporarily reduce revolving credit borrowings under the Working Capital Facility or otherwise invest the Net Proceeds in any manner that is not prohibited by this Indenture. Any Net Proceeds from Asset Sales that are not applied or invested as provided in the second paragraph of this covenant will constitute “Excess Proceeds.” When the aggregate amount of Excess Proceeds exceeds $5.0 million, the Company will, within five (5) days thereof, make an Asset Sale Offer to all Holders and all holders of other senior secured Indebtedness that is pari passu in right of payment and as to security interests with the Notes with respect to the assets that are the subject of such Asset Sale 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 amount of Notes and such other pari passu Indebtedness that may be purchased out of the Excess Proceeds in accordance with the procedures set forth in Section 3.09 hereof. The offer price for the Notes in any Asset Sale Offer will be equal to 100% of the aggregate principal amount of the Notes, plus accrued and unpaid interest to the date of purchase, and will be payable in cash. If any Excess Proceeds remain after consummation of an Asset Sale Offer, the Company or the applicable Restricted Subsidiary may use those Excess Proceeds for any purpose not otherwise prohibited by this Indenture. If the aggregate principal amount of Notes and the amount of other pari passu Indebtedness tendered into such Asset Sale Offer exceeds the amount of Excess Proceeds, the Trustee shall Registrar will select the Notes and such other pari passu Indebtedness to be purchased on a pro rata basis. Upon completion of each Asset Sale Offer, the amount of Excess Proceeds will be reset at zero. The Company or the applicable Restricted Subsidiary will comply with the requirements of Rule 14e-1 under the Exchange Act and any other securities laws and regulations thereunder to the extent those laws and regulations are applicable in connection with each repurchase of Notes pursuant to an Asset Sale Offer. To the extent that the provisions of any securities laws or regulations conflict with the Asset Sale provisions of this Indenture, the Company or the applicable Restricted Subsidiary will comply with the applicable securities laws and regulations and will not be deemed to have breached its obligations under the Asset Sale provisions of this Indenture by virtue of such conflict.
Appears in 2 contracts
Samples: Indenture (Nuveen Investments Holdings, Inc.), Indenture (Nuveen Investments Holdings, Inc.)
Limitation on Asset Sales. The Company will not, and will not permit any of its Restricted Subsidiaries Subsidiary to, consummate an make any Asset Sale unless:
unless (1) the a)the Company or the such Restricted Subsidiary, as the case may be, receives consideration (including by way of relief from, or by any other Person assuming responsibility for, any liabilities, contingent or otherwise) at the time of the such Asset Sale at least equal to the Fair Market Value of the assets or Equity Interests issued or other property sold or otherwise disposed of; and
of in the Asset Sale, as such Fair Market Value may be determined (2and shall be determined, to 135 the extent such Asset Sale or any series of related Asset Sales involves aggregate consideration in excess of $1.0 million) in good faith by the Board of Directors, whose determination shall be conclusive (including as to the value of all noncash consideration), and (ii) at least 8575% of the such consideration received (excluding, in the case of an Asset Sale of assets, any consideration by way of relief from, or by any other Person assuming responsibility for, any liabilities, contingent or otherwise, which are not Indebtedness) consists of either cash or Cash Equivalents. For purposes of this Section10.14, "cash" shall include (1) the amount of any Indebtedness (other than any Indebtedness that is by its terms expressly subordinated in right of payment to the Notes) of the Company or such Restricted Subsidiary that is in the form of cash. For purposes of this Section 5.10, each of the following will be deemed to be cash:
(1) any liabilities, as shown on the Company’s most recent consolidated balance sheet, of the Company or any Subsidiary (other than contingent liabilities and Indebtedness that are (x) by their terms subordinated to the Notes or any Note Guarantee, (y) unsecured, or (z) secured by a Lien on the assets or rights that are the subject of the Asset Sale, which Lien is junior in priority to the Liens securing the Notes or any Note Guarantee) that are assumed by the transferee of any such assets pursuant or other property in such Asset Sale or another Person (and excluding any liabilities that are incurred in connection with or in anticipation of such Asset Sale), but only to the extent that such assumption is effected on a customary novation agreement that releases basis under which there is no further recourse to the Company or any of the Restricted Subsidiaries with respect to such Subsidiary from further liability;
liabilities, (2) Indebtedness of a Restricted Subsidiary that is no longer a Restricted Subsidiary as a result of such Asset Sale, to the extent that the Company and each other Restricted Subsidiary is unconditionally released from any securitiesGuarantee of such Indebtedness in connection with such Asset Sale, notes or other obligations (3) securities received by the Company or any such Restricted Subsidiary from such the transferee that are contemporaneously, subject to ordinary settlement periods, promptly converted by into cash and (4) consideration consisting of Indebtedness of the Company or such any Restricted Subsidiary into cash(other than Indebtedness that is by its terms expressly subordinated in right of payment to the Notes), to the extent of the cash received in that conversion; and
(3) any stock or assets of the kind referred such Indebtedness is cancelled and there is no further recourse to in clauses (2) or (4) of the next paragraph of this covenant. Within 365 days after the receipt of any Net Proceeds from an Asset Sale, the Company (or the applicable any such Restricted Subsidiary, as the case may be) , under such Indebtedness. Within 365 days after any Asset Sale, the Company may elect to apply an amount equal to the Net Proceeds from such Net Proceeds:
Asset Sale to (1) to repay Indebtedness and other Obligations under the Working Capital Facility and to correspondingly permanently a)permanently reduce commitments with respect thereto;
(2) to acquire all or substantially all any Senior Debt of the assets of, Company or any Capital Stock of, another Permitted Business, if, after giving effect to any such acquisition Indebtedness (other than Preferred Stock) of Capital Stock, the Permitted Business is or becomes (x) a Restricted Subsidiary of the Company and and/or (y) b)make an investment in, or acquire assets related to, a Guarantor;
(3) to make capital expenditures in a Permitted Business (other than Equity Interests, Indebtedness or current assets); or
(4) to acquire other assets (other than Equity Interests or Indebtedness) that are not classified as current assets under GAAP and that are used or useful in a Permitted Related Business. Pending the final application of any Net Proceedssuch amount, the Company may temporarily reduce borrowings under the Working Capital Facility Senior Debt or otherwise Indebtedness of a Restricted Subsidiary or temporarily invest the such Net Proceeds in any manner that is not prohibited permitted by this Indenture. Any Net Proceeds from Asset Sales that are portion of such amount not applied or invested as provided in the second paragraph first sentence of this covenant paragraph within 365 days of such Asset Sale will be deemed to constitute “Excess Proceeds"EXCESS PROCEEDS.” When " Each date on which the aggregate amount of Excess Proceeds exceeds $5.0 million, the Company will, within five (5) days thereof, make in respect of which an Asset Sale Offer has not been made exceeds $10.0 million shall be deemed an "ASSET SALE OFFER TRIGGER DATE." As soon as practicable, but in no event later than 20 Business Days after each Asset Sale Offer Trigger Date, the Company shall commence an offer (an "ASSET SALE OFFER") to all Holders purchase the maximum principal amount of Notes and all holders other Indebtedness of other senior secured Indebtedness the Company that is pari passu ranks PARI PASSU in right of payment and as to security interests with the Notes with respect (to the assets that are extent required by the subject of such Asset Sale 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 amount of Notes and instrument governing such other pari passu Indebtedness Indebtedness) that may be purchased out of the Excess Proceeds in accordance with the procedures set forth in Section 3.09 hereofProceeds. The offer price for the Any Notes in any to be purchased pursuant to an Asset Sale Offer will shall, and any other Indebtedness to be purchased pursuant to an Asset Sale Offer may, be purchased PRO RATA based on the aggregate principal amount of Notes and all such other Indebtedness outstanding, and all such Notes shall be purchased at an offer price in cash in an amount equal to 100% of the aggregate principal amount of the Notesthereof, plus accrued and unpaid interest interest, if any, to the date of purchase, and will be payable in cash. If To the extent that any Excess Proceeds remain after consummation completion of an Asset Sale Offer, the Company may use those Excess Proceeds the remaining amount for any purpose not general corporate purposes otherwise prohibited permitted by this Indenture. If In the aggregate principal amount event that the Company is prohibited under the terms of any agreement governing outstanding Senior Debt of the Company from repurchasing Notes and the amount of other pari passu Indebtedness tendered into such with Excess Proceeds pursuant to an Asset Sale Offer exceeds the amount of Excess Proceedsas set forth in this paragraph, the Trustee Company shall select promptly use all Excess Proceeds to permanently reduce such outstanding Senior Debt of the Notes and such other pari passu Indebtedness to be purchased on a pro rata basisCompany. Upon completion the consummation of each such permanent reduction, or of any Asset Sale Offer, the amount of Excess Proceeds will shall be deemed to be reset at to zero.
Appears in 2 contracts
Samples: Indenture (Leiner Health Products Inc), Indenture (Leiner Health Products Inc)
Limitation on Asset Sales. (a) The Company will Issuer shall not, and will shall not permit any of its Restricted Subsidiaries to, consummate an Asset Sale unless:
(1) the Company Issuer or the applicable Restricted Subsidiary, as the case may be, receives consideration at the time of the such Asset Sale at least equal to the Fair Market Value fair market value of the assets or Equity Interests issued or sold or otherwise disposed of; andof (as determined in good faith by the Issuer’s Board of Directors);
(2) at least 8575% of the consideration received in by the Issuer or the Restricted Subsidiary, as the case may be, from such Asset Sale by the Company or such Restricted Subsidiary is shall be in the form of cashcash or Cash Equivalents and shall be received at the time of such disposition. For purposes of this Section 5.10clause (2), each of the following will shall be deemed to be cash:
(1A) any liabilities, as shown on the Company’s most recent consolidated balance sheet, sheet of the Company Issuer or any Restricted Subsidiary (or would be shown on such consolidated balance sheet as of the date of such Asset Sale), other than contingent liabilities and Indebtedness liabilities that are (x) by their terms subordinated to the Notes or any Note Guarantee, (y) unsecured, or (z) secured by a Lien on the assets or rights that are the subject of the Asset Sale, which Lien is junior in priority to the Liens securing the Notes or any Note Guarantee) Guarantees of Indebtedness of Persons other than the Issuer or any Restricted Subsidiary, that are assumed by the transferee of any person acquiring such assets pursuant to a customary novation agreement the extent that releases the Company or Issuer and its Restricted Subsidiaries have no further liability with respect to such Subsidiary from further liabilityliabilities;
(2B) any securities, notes or other obligations received by the Company Issuer or any such Restricted Subsidiary from such transferee that are contemporaneously, subject to ordinary settlement periods, converted by the Company Issuer or such Restricted Subsidiary into cash, cash or Cash Equivalents (to the extent of the cash received in that conversionor Cash Equivalents received) within 90 days after receipt; and
(C) any Designated Non-Cash Consideration received by the Issuer or its Restricted Subsidiaries in such Asset Sale having an aggregate Fair Market Value, taken together with all other Designated Non-Cash Consideration received pursuant to this clause (C) that is at that time outstanding in the aggregate, not to exceed the greater of (i) $25.0 million and (ii) 1.0% of the Issuer’s Consolidated Total Assets, in each case at the time of receipt of such Designated Non-Cash Consideration, with the Fair Market Value of each item of Designated Non-Cash Consideration measured at the time received and without giving effect to subsequent changes in value;
(3) any stock or assets upon the consummation of the kind referred to in clauses (2) or (4) of the next paragraph of this covenant. Within 365 days after the receipt of any Net Proceeds from an Asset Sale, the Company Issuer shall apply, or cause such Restricted Subsidiary to apply, the Net Cash Proceeds relating to such Asset Sale within 365 days of receipt thereof either:
(A) to permanently reduce Indebtedness (x) under any Credit Facility and in the case of any such Indebtedness under any revolving credit facility effect a permanent reduction in the availability under such revolving credit facility (provided, however that, if there shall not be any term loan indebtedness outstanding under any Credit Facility, in the case of such Indebtedness under any revolving credit facility such prepayment shall not be required to effect a permanent reduction in the availability under such revolving credit facility) or (y) of a Subsidiary that does not guarantee the Notes;
(B) to make an investment in properties and assets that replace the properties and assets that were the subject of such Asset Sale or in properties and assets (including Capital Stock) that will be used in the business of the Issuer and its Restricted Subsidiaries as existing on the Issue Date or in businesses reasonably related thereto (“Replacement Assets”); provided that, in the case of this clause (B), a binding commitment shall be treated as a permanent application of the Net Cash Proceeds from the date of such commitment so long as the Issuer or such other Restricted Subsidiary enters into such commitment with the good faith expectation that such Net Cash Proceeds will be applied to satisfy such commitment within 180 days of such commitment (an “Acceptable Commitment”); provided further that if any Acceptable Commitment is later cancelled or terminated for any reason before such Net Cash Proceeds are applied, then such Net Cash Proceeds shall constitute part of the Net Proceeds Offer Amount if not otherwise applied as provided above within 365 days of the receipt of such Net Cash Proceeds; or
(C) a combination of prepayment and investment permitted by the foregoing clauses (3)(A) and (3)(B).
(b) On the 366th day (or, in the event of an Acceptable Commitment, the 546th day) after an Asset Sale or such earlier date, if any, as the Board of Directors of the Issuer or of such Restricted Subsidiary determines not to apply the Net Cash Proceeds relating to such Asset Sale as set forth in Sections 4.10(a)(3)(A), (3)(B) and (3)(C) (each, a “Net Proceeds Offer Trigger Date”), such aggregate amount of Net Cash Proceeds that have not been applied on or before such Net Proceeds Offer Trigger Date as permitted in Sections 4.10(a)(3)(A), (3)(B) and (3)(C) or the last proviso of this paragraph (each, a “Net Proceeds Offer Amount”) shall be applied by the Issuer or such Restricted Subsidiary to make an offer to purchase (the “Net Proceeds Offer”) to all Holders and, to the extent required by the terms of any Pari Passu Indebtedness, to all holders of such Pari Passu Indebtedness, on a date (the “Net Proceeds Offer Payment Date”) not less than 30 nor more than 45 days following the applicable Net Proceeds Offer Trigger Date, from all Holders (and holders of any such Pari Passu Indebtedness) on a pro rata basis, the maximum amount of Notes and Pari Passu Indebtedness that may be purchased with the Net Proceeds Offer Amount at a price equal to 100% of the principal amount of the Notes and Pari Passu Indebtedness to be purchased, plus accrued and unpaid interest thereon, if any, to the date of purchase; provided, however, that if at any time any non-cash consideration received by the Issuer or any Restricted SubsidiarySubsidiary of the Issuer, as the case may be, in connection with any Asset Sale is converted into or sold or otherwise disposed of for cash (other than interest received with respect to any such non-cash consideration), then such conversion or disposition shall be deemed to constitute an Asset Sale hereunder and the Net Cash Proceeds thereof shall be applied in accordance with this Section 4.10.
(c) The Issuer may apply defer the Net Proceeds Offer until there is an aggregate unutilized Net Proceeds Offer Amount equal to or in excess of $25.0 million resulting from one or more Asset Sales (at which time, the entire unutilized Net Proceeds Offer Amount, and not just the amount in excess of $25.0 million, shall be applied as required pursuant to this Section 4.10(c)).
(d) In the event of the transfer of substantially all (but not all) of the property and assets of the Issuer and its Restricted Subsidiaries as an entirety to a Person in a transaction permitted under Section 5.01, which transaction does not constitute a Change of Control, the successor entity shall be deemed to have sold the properties and assets of the Issuer and its Restricted Subsidiaries not so transferred for purposes of this Section 4.10 and shall comply with the provisions of this Section 4.10 with respect to such deemed sale as if it were an Asset Sale. In addition, the fair market value of such properties and assets of the Issuer or its Restricted Subsidiaries deemed to be sold shall be deemed to be Net ProceedsCash Proceeds for purposes of this Section 4.10.
(e) Notwithstanding Sections 4.10(a) and 4.10(b), the Issuer and its Restricted Subsidiaries will be permitted to consummate an Asset Sale without complying with such Sections to the extent that:
(1) to repay Indebtedness and other Obligations under at least 75% of the Working Capital Facility and to correspondingly permanently reduce commitments with respect thereto;consideration for such Asset Sale constitutes Replacement Assets; and
(2) to acquire all or substantially all of the assets of, or any Capital Stock of, another Permitted Business, if, after giving effect to any such acquisition of Capital Stock, the Permitted Business is or becomes (x) a Restricted Subsidiary of the Company and (y) a Guarantor;
(3) to make capital expenditures in a Permitted Business (other than Equity Interests, Indebtedness or current assets); or
(4) to acquire other assets (other than Equity Interests or Indebtedness) that are not classified as current assets under GAAP and that are used or useful in a Permitted Business. Pending the final application of any Net Proceeds, the Company may temporarily reduce borrowings under the Working Capital Facility or otherwise invest the Net Proceeds in any manner that is not prohibited by this Indenture. Any Net Proceeds from Asset Sales that are not applied or invested as provided in the second paragraph of this covenant will constitute “Excess Proceeds.” When the aggregate amount of Excess Proceeds exceeds $5.0 million, the Company will, within five (5) days thereof, make an Asset Sale Offer to all Holders and all holders of other senior secured Indebtedness that is pari passu in right of payment and as to security interests with the Notes with respect to the assets that are the subject of such Asset Sale containing provisions similar to those set forth is for fair market value; provided that any consideration not constituting Replacement Assets received by the Issuer or any of its Restricted Subsidiaries in this Indenture connection with respect to offers to purchase or redeem with the proceeds of sales of assets to purchase the maximum amount of Notes and such other pari passu Indebtedness that may be purchased out of the Excess Proceeds in accordance with the procedures set forth in Section 3.09 hereof. The offer price for the Notes in any Asset Sale Offer will permitted to be equal to 100% of the aggregate principal amount of the Notes, plus accrued and unpaid interest consummated under this Section 4.10(e) shall constitute Net Cash Proceeds subject to the date provisions of purchase, Sections 4.10(a) and will be payable in cash. If any Excess Proceeds remain after consummation of an Asset Sale Offer, the Company may use those Excess Proceeds for any purpose not otherwise prohibited by this Indenture. If the aggregate principal amount of Notes and the amount of other pari passu Indebtedness tendered into such Asset Sale Offer exceeds the amount of Excess Proceeds, the Trustee shall select the Notes and such other pari passu Indebtedness to be purchased on a pro rata basis. Upon completion of each Asset Sale Offer, the amount of Excess Proceeds will be reset at zero4.10(b).
Appears in 2 contracts
Samples: Indenture (Manitowoc Co Inc), Indenture (Manitowoc Foodservice, Inc.)
Limitation on Asset Sales. The Company will not, and will not permit any of its Restricted Subsidiaries to, consummate an Asset Sale (including a Collateral Disposition), unless:
(1) the Company (or the Restricted Subsidiary, as the case may be, ) receives consideration at the time of the Asset Sale at least equal to the Fair Market Value of the assets or Equity Interests Capital Stock issued or sold or otherwise disposed of; andprovided, that in the case of a Collateral Disposition of any Property set forth in Category 1 on Annex I hereto (or Capital Stock of a Subsidiary that, directly or indirectly, owns any such Property), the Company (or the Subsidiary) receives consideration at the time of the Asset Sale that is at least equal to the greater of (i) the release price of such Property set forth on Annex II hereto and (ii) the Fair Market Value of the Collateral sold or otherwise disposed of;
(2) at least 8575% of the consideration received in the Asset Sale (other than an Asset Sale of Properties set forth in Category 4 on Annex I hereto that are owned by a Subsidiary of the Company and Category 8 on Annex I hereto) by the Company or such Restricted Subsidiary is in the form of cashcash or cash equivalents;
(3) funds in an amount equal to the Net Available Cash are deposited directly in a deposit account subject to a valid and perfected Lien in favor of the Collateral Agent free of any other Lien (other than the Lien of the Secured Debt Documents or any other Permitted Collateral Lien); and
(4) in the case of an Asset Sale of Capital Stock of a Subsidiary, such Asset Sale constitutes a disposition of all Capital Stock of such Subsidiary owned by the Company or any Subsidiary; provided, that any Collateral Disposition constituting any Event of Loss, loss, destruction, damage, condemnation, confiscation, requisition, seizure, forfeiture or taking of title to or use of Collateral shall not be required to satisfy the conditions set forth in clauses (1) or (2) of this paragraph. For the purposes of this Section 5.104.03, each of the following will be are deemed to be cashcash or cash equivalents:
(1) any liabilitiessolely in the case of an Asset Sale not constituting a Collateral Disposition of Property Collateral, as shown on the Company’s most recent consolidated balance sheet, assumption or discharge of Indebtedness of the Company or any Subsidiary of a Guarantor (other than unsecured Indebtedness, Junior Lien Debt, contingent liabilities and Indebtedness liabilities that are (x) by their terms subordinated in right of payment to the Notes or any Note Guarantee, (y) unsecured, or (z) secured by a Lien on the assets or rights that are the subject Subsidiary Guarantee and obligations in respect of Disqualified Stock of the Asset Sale, which Lien is junior in priority to the Liens securing the Notes Company) or any Note Guarantee) that are assumed by the transferee Indebtedness of any Subsidiary that is not a Guarantor (other than obligations in respect of Disqualified Stock of such assets pursuant to a customary novation agreement that releases Subsidiary) and the Company release of the Company, such Guarantor or such Subsidiary from further liabilityall liability on such Indebtedness in connection with such Asset Sale;
(2) in the case of an Asset Sale of a Property set forth in Category 3, Category 4 or Category 7 on Annex I hereto by the Subsidiary or Joint Venture owning such Property, the principal amount of any Indebtedness of such Subsidiary or Joint Venture repaid with the proceeds of such Asset Sale solely to the extent such Indebtedness has been incurred pursuant to Section 4.02(b)(3), (8), or (9) and has been secured by a Permitted Lien on such Property and on the Capital Stock in such Subsidiary incurred pursuant to clause (2) of the definition of Permitted Liens; and
(3) any securities, notes or other obligations received by the Company or any such Restricted Subsidiary from such the transferee that are contemporaneously, subject to ordinary settlement periods, promptly converted by the Company or such Restricted Subsidiary into cashcash within 180 days of the closing of such Asset Sale, to the extent of the cash received in that conversion; and
. The Company will not permit any Subsidiary to issue any Capital Stock of such Subsidiary to, or otherwise permit any such Capital Stock to be owned by, any Person other than the Company or any Subsidiary Guarantor, except upon a Collateral Disposition of all such Capital Stock to such a Person that complies with this Section 4.03. Pending the final application of any Net Available Cash from an Asset Sale (3) including a Collateral Disposition but excluding any stock Asset Sale of a Property, or assets of the kind referred to Capital Stock of a Subsidiary solely owning a Property, set forth in clauses (2Category 8 on Annex I hereto) or (4) a Joint Venture Disposition, upon the receipt by the Company or a Subsidiary of the next paragraph Net Available Cash attributable to an Asset Sale or a Joint Venture Disposition, the Company shall cause, or shall cause such Subsidiary to cause, such amounts (such amounts, the “Pending Use Cash”) to be deposited directly by the Company or such Subsidiary in a deposit account subject to a valid and perfected Lien in favor of this covenantthe Collateral Agent free of any other Lien (other than the Lien of the Secured Debt Documents or any other Permitted Collateral Lien), and the Pending Use Cash will constitute Collateral pending application as a Permitted Excess Cash Use or as hereinafter described. Within 365 360 days (or 720 days with respect to an Event of Loss) after the actual receipt of any Net Proceeds Available Cash by the Company or a Subsidiary from an Asset SaleSale (including an Event of Loss and a Collateral Disposition but excluding any Asset Sale of a Property, or of the Capital Stock of a Subsidiary solely owning a Property, set forth in Category 8 on Annex I hereto) or a Joint Venture Disposition, the Company (or the applicable Restricted Subsidiary, as the case may be) may apply such Net Proceeds:Available Cash (each such application a “Permitted Excess Cash Use”):
(1) to repay Indebtedness and other Obligations under the Working Capital Facility and to correspondingly permanently reduce commitments with respect thereto;
(2A) to acquire all or substantially all of the assets of, or any Capital Stock of, another Permitted Related Business, if, after giving effect to any such acquisition of Capital Stock, the Permitted Related Business is or becomes (x) a Restricted Subsidiary of the Company and (y) a Guarantorsuch assets or Capital Stock, “Related Business Assets”);
(3B) to make a capital expenditures in a Permitted Business (other than Equity Interests, Indebtedness expenditure to construct or current assets); or
(4) to acquire other improve assets (other than Equity Interests or Indebtedness) that are not classified as current assets under GAAP and that are used or useful in a Related Business (such assets, “CapEx Assets”);
(C) to acquire other Additional Assets (such Related Business Assets, CapEx Assets, Additional Assets or Specified Property referenced in clauses (A), (B), (C) and (E), collectively, the “Permitted Business. Pending Excess Cash Use Assets”);
(D) to fund distributions to qualify, or maintain the final application qualification of the REIT or any other parent of the Company, as a real estate investment trust for U.S. federal income tax purposes as such Permitted Excess Cash Use in this clause (D) is approved in good faith by the Boards of Directors of both the Company and the REIT; provided that (x) the amount required to fund distributions shall take into account the extent to which the REIT may issue stock dividends that qualify for deduction under Code Section 561(a); (y) the aggregate cash amount under this clause (D) does not exceed $10 million in any calendar year; and (z) no Event of Default shall have occurred and be continuing or would occur as a consequence thereof; or
(E) to repay at a discount any Non-Recourse Mortgage Indebtedness or Recourse Indebtedness of any Net ProceedsExcluded Non-Guarantor Subsidiary owning any Property that immediately prior to such repayment does not constitute Collateral (such Property, “Specified Property”) to the extent such Permitted Excess Cash Use in this clause (E) is approved in good faith by the Boards of Directors of both the Company may temporarily reduce borrowings and the REIT; provided that (x) as a result of such repayment, such Non-Recourse Mortgage Indebtedness or Recourse Indebtedness is satisfied and discharged in its entirety and, simultaneously with such repayment, all Liens on such Specified Property and any other property or assets of the Company or any Subsidiary securing such Indebtedness are released, (y) such Specified Property shall be deemed listed under Category 1 on Annex I hereto, and the Working Capital Facility or otherwise invest Company shall promptly deliver to the Net Proceeds in any manner that is not prohibited Collateral Agent the documents and certificates required by this Indenture. Any Net Proceeds from Asset Sales that are not applied or invested as provided in the second paragraph Section 4.14 and Article 11 of this covenant will constitute “Excess Proceeds.” When the aggregate amount Indenture and (z) no Event of Excess Proceeds exceeds $5.0 million, the Company will, within five (5) days Default shall have occurred and be continuing or would occur as a consequence thereof, make an Asset Sale Offer to all Holders and all holders of other senior secured Indebtedness that is pari passu in right of payment and as to security interests with the Notes with respect to the assets that are the subject of such Asset Sale 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 amount of Notes and such other pari passu Indebtedness that may be purchased out of the Excess Proceeds in accordance with the procedures set forth in Section 3.09 hereof. The offer price for the Notes in any Asset Sale Offer will be equal to 100% of the aggregate principal amount of the Notes, plus accrued and unpaid interest to the date of purchase, and will be payable in cash. If any Excess Proceeds remain after consummation of an Asset Sale Offer, the Company may use those Excess Proceeds for any purpose not otherwise prohibited by this Indenture. If the aggregate principal amount of Notes and the amount of other pari passu Indebtedness tendered into such Asset Sale Offer exceeds the amount of Excess Proceeds, the Trustee shall select the Notes and such other pari passu Indebtedness to be purchased on a pro rata basis. Upon completion of each Asset Sale Offer, the amount of Excess Proceeds will be reset at zero.;
Appears in 2 contracts
Samples: Indenture (CBL & Associates Limited Partnership), Indenture
Limitation on Asset Sales. The Company will not, and will not permit any of its Restricted Subsidiaries to, consummate an Asset Sale unless:
(1) the Company (or the Restricted Subsidiary, as the case may be, ) receives consideration at the time of the Asset Sale at least equal to the Fair Market Value of the assets or Equity Capital Interests issued or sold or otherwise disposed of; and
(2) at least 8575% of the consideration received in the Asset Sale by the Company or such Restricted Subsidiary is in the form of cashcash or Eligible Cash Equivalents. For purposes of this Section 5.10provision, each of the following will be deemed to be cash:
(1a) any liabilities, as shown on the Company’s most recent consolidated balance sheet, sheet of the Company or any Restricted Subsidiary (other than contingent liabilities and Indebtedness liabilities that are (x) by their terms subordinated to the Notes or any Note Guarantee, (y) unsecured, or (z) secured by a Lien on the assets or rights that are the subject of the Asset Sale, which Lien is junior in priority to the Liens securing the Notes or any Note Guarantee) that are assumed by the transferee of any such assets pursuant to a customary assignment and assumption or novation agreement that releases the Company or such Restricted Subsidiary from further liabilityliability with respect thereto;
(2b) 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, cash within 450 days of their receipt to the extent of the cash received in that conversion; and
(3c) any stock Designated Non-cash Consideration received by the Company or assets any such Restricted Subsidiary in such Asset Sale having an aggregate Fair Market Value, taken together with all other Designated Non-cash Consideration received pursuant to this clause (c) that is at that time outstanding, not to exceed the greater of $75.0 million and 2.75% of the kind referred to in clauses (2) or (4) Consolidated Net Tangible Assets of the next paragraph Company and its Restricted Subsidiaries at the time of this covenantthe receipt of such Designated Non-cash Consideration, with the Fair Market Value of each item of Designated Non-cash Consideration being measured at the time received and without giving effect to subsequent changes in value. Within 365 360 days after the receipt of any Net Cash Proceeds from an Asset Sale, or, if with respect to clauses (ii), (iii) and (iv) below, within 360 days after the receipt of any Net Cash Proceeds from any Asset Sale the Company or any Restricted Subsidiary entered into a contractual commitment, pursuant to a binding agreement, to apply any such Net Cash Proceeds, then, within 540 days after the receipt of such Net Cash Proceeds, the Company (or the applicable Restricted Subsidiary, as the case may be) may apply such Net ProceedsCash Proceeds at its option:
(1i) to repay Indebtedness and permanently prepay, repay, redeem, purchase or repurchase Debt (other Obligations under than Subordinated Obligations) and, if the Working Capital Facility and Obligation repaid is revolving credit Debt, to correspondingly permanently reduce commitments with respect thereto;
(2ii) to acquire all or substantially all of the assets of, or any Capital Stock Interests of, another Permitted Business, if, after giving effect to any such acquisition of Capital StockInterests, the Permitted Business is or becomes (x) a Restricted Subsidiary of the Company and (y) a GuarantorCompany;
(3iii) to make capital expenditures in or that are used or useful in a Permitted Business (other than Equity Interestsor to make expenditures for maintenance, Indebtedness repair or current assets); orimprovement of existing properties and assets in accordance with the provisions of this Indenture;
(4iv) to acquire other assets (other than Equity Interests or Indebtednessinventory) that are not classified as current assets under GAAP and that are used or useful in a Permitted Business;
(v) to prepay, repay, redeem, purchase or repurchase Debt secured by the assets of the Company or any Restricted Subsidiaries; or
(vi) any combination of the foregoing. Pending the final application of any Net Cash Proceeds, the Company or any Restricted Subsidiary may temporarily reduce revolving credit borrowings under the Working Capital Facility Credit Agreement or otherwise invest the Net Cash Proceeds in any manner that is not prohibited by this Indenture. Any Net Cash Proceeds from Asset Sales that are not applied or invested as provided in the second preceding paragraph of this covenant Section 4.10 will constitute “Excess Proceeds.” When the aggregate amount of Excess Proceeds exceeds $5.0 100.0 million, the Company will, within five (5) days thereof30 days, make an Asset Sale Offer to Purchase to all Holders of Notes (on a pro rata basis among the Notes), and to all holders of other senior secured Indebtedness that is Debt ranking pari passu in right of payment and as to security interests with the Notes with respect to the assets that are the subject of such Asset Sale containing provisions similar to those set forth in this Indenture with respect to offers assets sales, equal to purchase or redeem with the proceeds of sales of assets to purchase the maximum amount of Notes and such other pari passu Indebtedness that may be purchased out of the Excess Proceeds in accordance with the procedures set forth in Section 3.09 hereofProceeds. The offer price for the Notes in any Asset Sale Offer to Purchase will be equal to 100% of the aggregate principal amount of the Notes, plus accrued and unpaid interest to the date of purchase, and will be payable in cash. If any Excess Proceeds remain after consummation of an Asset Sale OfferOffer to Purchase, the Company may use those Excess Proceeds funds for any purpose not otherwise prohibited by this IndentureIndenture and they will no longer constitute Excess Proceeds. If the aggregate principal amount of Notes and the amount of other pari passu Indebtedness Debt tendered into such Asset Sale Offer to Purchase exceeds the amount of Excess Proceeds, the Trustee shall Trustee, upon receipt of a Company Order, will select the Notes and such other pari passu Indebtedness to be purchased on a pro rata basisbasis among the Notes (with such adjustments as may be deemed appropriate by the Company so that only Notes in denominations of $2,000 or any integral multiple of $1,000 in excess thereof will be purchased). Upon completion of each Asset Sale OfferOffer to Purchase, the amount of Excess Proceeds will be reset at zero. The Company will comply with the requirements of Rule 14e-1 under the Exchange Act and any other applicable securities laws and regulations thereunder to the extent those laws and regulations are applicable in connection with each repurchase of Notes pursuant to an Offer to Purchase. To the extent that the provisions of any securities laws or regulations conflict with the Asset Sale provisions of this Indenture, the Company will comply with the applicable securities laws and regulations and will be deemed to have complied with its obligations under the Asset Sale provisions of this Indenture by virtue of such compliance.
Appears in 2 contracts
Limitation on Asset Sales. (a) The Company will shall not, and will shall not permit any of its Restricted Subsidiaries Subsidiary to, consummate an Asset Sale unless:
(1i) the Company (or the Restricted Subsidiary, as the case may be, ) receives consideration at the time of the such Asset Sale at least equal to the Fair Market Value of the assets or Equity Interests issued or sold or otherwise disposed of, or Restricted Subsidiary Equity Interests issued, in such Asset Sale; and
(2ii) at least 8575.0% of the consideration therefor received in the Asset Sale by the Company or such Restricted Subsidiary is in the form of cash. For cash or Cash Equivalents; provided, however, that, for purposes of the provisions set forth in this Section 5.10clause (ii) and for no other purpose, each the amount of the following will be deemed to be cash:
(1) any liabilities, liabilities (as shown on the Company’s or such Restricted Subsidiary’s most recent consolidated balance sheet, ) of the Company or any Restricted Subsidiary (other than contingent liabilities and Indebtedness liabilities that are (x) by their terms subordinated to the Notes or any Note Guarantee, (y) unsecured, or (z) secured by a Lien on the assets or rights that are the subject of the Asset Sale, which Lien is junior in priority to the Liens securing the Notes or any Note GuaranteeGuarantee thereof) that are assumed by the transferee of any such assets pursuant to a customary novation agreement that releases the Company or such Restricted Subsidiary from further liability;
liability (or are otherwise extinguished in connection with the transactions relating to such Asset Sale), (2) 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 any Restricted Subsidiary into cashcash or Cash Equivalents within 180 days of receipt, to the extent of the cash or Cash Equivalents received in that conversion; and
and (3) the Fair Market Value of any stock property or assets received (including any Capital Stock of the kind referred any Person that shall be a Restricted Subsidiary following receipt thereof) that are used or useful in any Related Business, in each case shall be deemed to in clauses (2) or (4) of the next paragraph of this covenantbe cash. Within 365 days after the Company or any Restricted Subsidiary’s receipt of such Net Cash Proceeds, the Company or such Restricted Subsidiary may apply such Net Cash Proceeds, at its option:
(1) to prepay or otherwise pay or repay, purchase, redeem, defease, discharge, cash-collateralize or otherwise acquire or retire (A) Secured Indebtedness of the Company or any Guarantor (and, if such Indebtedness is under a revolving credit facility, to correspondingly reduce commitments with respect thereto), (B) Senior Indebtedness (other than Secured Indebtedness) of the Company or any Guarantor (and, if such Indebtedness is under a revolving credit facility, to correspondingly reduce commitments with respect thereto); provided, however, that if any such Senior Indebtedness described in this clause (B) other than the Notes are repaid with such Net Cash Proceeds, the Company shall equally and ratably reduce the Notes through open-market purchases (provided, however, that such purchases are at or above 100% of the principal amount thereof), by redeeming Notes in accordance with Section 3.07 or by making an offer (in accordance with the procedures set forth below for an Asset Sale Offer) to all holders of the Notes to purchase at a purchase price equal to 100% of the principal amount thereof, plus accrued and unpaid interest, the pro rata principal amount of the Notes or (C) Indebtedness of a Restricted Subsidiary that is not a Guarantor, in the case of each of clause (A), (B) and (C), other than Indebtedness owed to the Company or its Affiliates;
(2) to make an Investment in any one or more businesses (provided, however, that if such Investment is in the form of the acquisition of Capital Stock of a Person, such acquisition results in such Person becoming a Restricted Subsidiary if it is not already a Restricted Subsidiary), assets, or property or capital expenditures (including refurbishments), in each case used or useful in a Related Business; or
(3) to make a combination of any prepayments or other payments or repayments, purchases, redemptions, defeasances, discharges, cash collateralizations or other acquisitions or retirements and any Investments permitted by the foregoing clauses (1) and (2). In the case of an Investment contemplated by clause (2) above or clause (3) above, a binding commitment shall be treated as a permitted application of the Net Cash Proceeds from the date of such commitment; provided, however, that in the event such binding commitment is later canceled or terminated for any reason before such Net Cash Proceeds are so applied, the Company or Restricted Subsidiary enters into another binding commitment (a “Second Commitment”) to make an Investment permitted by such clause (2) or clause (3) within nine months of such cancellation or termination of the prior binding commitment; provided further, however, that the Company and its Restricted Subsidiaries may only enter into a Second Commitment under the foregoing provision one time with respect to each Asset Sale.
(b) If, on the 366th day after receipt by the Company or a Restricted Subsidiary of Net Cash Proceeds with respect to an Asset Sale, any such Net Cash Proceeds have not been applied as permitted by Section 4.06(a) (such Net Cash Proceeds received and not so applied being “Excess Proceeds” and the date of such 366th day being an “Asset Sale Offer Trigger Date”), the Company or one or more Restricted Subsidiaries shall make an offer to all Holders and, if required or permitted by the terms of any Senior Indebtedness, to the holders of such Senior Indebtedness, to purchase (the “Asset Sale Offer”), on a date not less than 30 nor more than 60 days following the applicable Asset Sale Offer Trigger Date, from all Holders and holders of such Senior Indebtedness on a pro rata basis (or as nearly pro rata as practicable) based on the accreted value or principal amount, as applicable, of the Notes and such Senior Indebtedness tendered pursuant to such Asset Sale Offer, that amount of Notes and such Senior Indebtedness equal to the applicable Excess Proceeds (minus any federal, state, provincial, foreign and local taxes payable as a result of the transfer or deemed transfer of funds from the entity that made the Asset Sale to the entity that is making such Asset Sale Offer) at a price equal to 100.0% of the principal amount of the Notes to be purchased, plus accrued and unpaid interest thereon, if any, to but excluding the date of purchase (or, in respect of such Senior Indebtedness, the price provided for by the terms of such Senior Indebtedness); provided, however, that if at any time any non-cash consideration received by the Company or any Restricted Subsidiary, as the case may be) may apply such Net Proceeds:
, in connection with any Asset Sale is converted into or sold or otherwise disposed of for cash (1) to repay Indebtedness and other Obligations under the Working Capital Facility and to correspondingly permanently reduce commitments than interest received with respect thereto;
(2) to acquire all or substantially all of the assets of, or any Capital Stock of, another Permitted Business, if, after giving effect to any such acquisition of Capital Stocknon-cash consideration), the Permitted Business is or becomes (x) a Restricted Subsidiary then, solely for purposes of the Company and (y) a Guarantor;
(3) to make capital expenditures in a Permitted Business (other than Equity Interests, Indebtedness or current assets); or
(4) to acquire other assets (other than Equity Interests or Indebtedness) that are not classified as current assets under GAAP and that are used or useful in a Permitted Business. Pending the final application definition of any Net Cash Proceeds, the Company may temporarily reduce borrowings under the Working Capital Facility such conversion or otherwise invest disposition shall be deemed to constitute an Asset Sale, and the Net Cash Proceeds in any manner that is not prohibited by this Indenture. Any Net Proceeds from Asset Sales that are not thereof shall be applied or invested as provided in the second paragraph of this covenant will constitute “Excess Proceeds.” When the aggregate amount of Excess Proceeds exceeds $5.0 million, the Company will, within five (5) days thereof, make an Asset Sale Offer to all Holders and all holders of other senior secured Indebtedness that is pari passu in right of payment and as to security interests with the Notes with respect to the assets that are the subject of such Asset Sale 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 amount of Notes and such other pari passu Indebtedness that may be purchased out of the Excess Proceeds in accordance with the procedures set forth in provisions of this Section 3.09 hereof4.06 governing the application of the Net Cash Proceeds from an Asset Sale. The offer price for the If Holders do not tender Notes in any Asset Sale Offer will be equal to 100% of the an aggregate principal amount of the Notes, plus accrued and unpaid interest at least equal to the date of purchase, and will be payable in cash. If any applicable Excess Proceeds remain after consummation of an for purchase in connection with any Asset Sale Offer, the Company and the Restricted Subsidiaries may use those the portion of the Excess Proceeds not used to purchase Notes for any purpose not otherwise prohibited by this Indenture. If the aggregate principal amount of Notes and the amount of other pari passu Indebtedness tendered into such Asset Sale Offer exceeds the amount of Excess Proceeds, the Trustee shall select the Notes and such other pari passu Indebtedness to be purchased on a pro rata basis. Upon completion of each Asset Sale Offer, the Excess Proceeds shall be reduced by the amount of the Asset Sale Offer. Notwithstanding the occurrence of an Asset Sale Offer Trigger Date, the Company and the Restricted Subsidiaries may defer the Asset Sale Offer until there is an aggregate unutilized Excess Proceeds will of at least $25,000,000 resulting from one or more Asset Sales (at which time, the entire unutilized Excess Proceeds, and not just the amount in excess of $25,000,000, shall be reset applied as required pursuant to this Section 4.06). The Company and the Restricted Subsidiaries may satisfy the obligations set forth in this Section 4.06(b) with respect to any Net Cash Proceeds from an Asset Sale by making an Asset Sale Offer with respect to such Net Cash Proceeds prior to an applicable Asset Sale Offer Trigger Date. If the date on which a Note is purchased pursuant to an Asset Sale Offer is on or after an interest record date and on or before the related interest payment date, any accrued and unpaid interest on that Note shall be paid to the Person that was, at zerothe close of business on such record date, the Holder of that Note, and no additional interest for the period to which that interest record date relates shall be payable, with respect to that Note, to the Person who tendered that Note pursuant to the Asset Sale Offer.
(c) Each Asset Sale Offer shall be mailed (or otherwise sent in accordance with applicable procedures of the Depository) to the record Holders as shown on the register of Holders within 30 days following the Asset Sale Offer Trigger Date, with a copy to the Trustee, and shall comply with the procedures set forth in this Indenture. Upon receiving notice of the Asset Sale Offer, Holders may elect to tender their Notes in whole or in part in amounts equal to $2,000 or integral multiples of $1,000 in excess thereof in exchange for cash. To the extent Holders properly tender Notes in an amount exceeding the Excess Proceeds, the tendered Notes shall be purchased on a pro rata basis (or as nearly pro rata as practicable) based on the amount of Notes tendered. An Asset Sale Offer shall remain open for a period of 20 Business Days or such longer period as may be required by law. The Company shall comply with the requirements of Rule 14e-1 under the Exchange Act and any other securities laws and regulations thereunder to the extent such laws and regulations are applicable in connection with the repurchase of Notes pursuant to an Asset Sale Offer. To the extent that the provisions of any securities laws or regulations conflict with the requirements of this Section 4.06, the Company shall comply with the applicable securities laws and regulations and shall not be deemed to have breached its obligations under such covenant by virtue thereof.
Appears in 2 contracts
Samples: Indenture (Credit Acceptance Corp), Indenture (Credit Acceptance Corp)
Limitation on Asset Sales. For purposes of 6% Notes, Section 4.12 of the Indenture is hereby replaced and superseded by the following covenant and the following covenant shall apply to the 6% Notes: The Company and the Subsidiary Guarantors will not, and the Company and the Subsidiary Guarantors will not permit any of its or their respective Restricted Subsidiaries to, consummate an any Asset Sale Sale, unless:
(1) the Company consideration received by the Company, the Subsidiary Guarantor or the such Restricted Subsidiary, as the case may be, receives consideration at the time of the Asset Sale Subsidiary is at least equal to the Fair Market Value fair market value of the assets or Equity Interests issued or sold or otherwise disposed ofof as determined by the Board of the Company, in good faith; and
(2) at least 8575% of the consideration received in the Asset Sale by the Company or such Restricted Subsidiary is in the form consists of cash. For , Cash Equivalents and/or real estate assets; provided that, with respect to the sale of one or more real estate properties, up to 75% of the consideration may consist of indebtedness of the purchaser of such real estate properties so long as such Indebtedness is secured by a first priority Lien on the real estate property or properties sold; and provided that, for purposes of this Section 5.10, each of clause (ii) the following will be deemed to be cashamount of:
(1A) any liabilities, as shown on the Company’s most recent consolidated balance sheet, of the Company or any Subsidiary Indebtedness (other than contingent liabilities Indebtedness subordinated in right of payment to the notes or a Subsidiary Guarantee) that is required to be repaid or assumed (and Indebtedness that are (xis either repaid or assumed by the transferee of the related assets) by their terms subordinated to the Notes or any Note Guarantee, (y) unsecured, or (z) virtue of such Asset Sale and which is secured by a Lien on the property or assets or rights that are the subject of the Asset Sale, which Lien is junior in priority to the Liens securing the Notes or any Note Guarantee) that are assumed by the transferee of any such assets pursuant to a customary novation agreement that releases the Company or such Subsidiary from further liability;sold; and
(2B) any securities, notes securities or other obligations received by the Company Company, any Subsidiary Guarantor or any such Restricted Subsidiary from such transferee that are contemporaneously, subject to ordinary settlement periods, immediately converted by the Company Company, the Subsidiary Guarantor or such Restricted Subsidiary into cashcash (or as to which the Company, any Subsidiary Guarantor or such Restricted Subsidiary has received at or prior to the extent consummation of the Asset Sale a commitment (which may be subject to customary conditions) from a nationally recognized investment, merchant or commercial bank to convert into cash received in that conversion; and
(3) any stock or assets within 90 days of the kind referred consummation of such Asset Sale and which are thereafter actually converted into cash within such 90-day period) will be deemed to be cash. In the event that the aggregate Net Cash Proceeds received by the Company, any Subsidiary Guarantors or such Restricted Subsidiaries from one or more Asset Sales occurring on or after the Closing Date in clauses any period of 12 consecutive months (2such 12 consecutive month period, an “Asset Sale Period”) or exceed 5% of Total Assets (4) determined as of the next paragraph date closest to the commencement of this covenant. Within 365 such Asset Sale Period for which a consolidated balance sheet of the Company and its Restricted Subsidiaries has been filed with the Securities and Exchange Commission or provided to the trustee pursuant to Section 4.2 of the Indenture), then during the period commencing 180 days prior to the commencement of such Asset Sale Period and running through the date that is 12 months after the receipt date Net Cash Proceeds so received exceeded 5% of any Total Assets, an amount equal to the Net Cash Proceeds from an received during such Asset Sale, the Company (Sale Period must have been or the applicable Restricted Subsidiary, as the case may must be) may apply such Net Proceeds:
(1) invested in or committed to repay Indebtedness be invested in, pursuant to a binding commitment subject only to reasonable, customary closing conditions, and providing an amount equal to the Net Cash Proceeds are, in fact, so invested, within an additional 180 days, (x) fixed assets and property (other Obligations under than notes, bonds, obligations and securities) which in the Working good faith reasonable judgment of the Board of the Company will immediately constitute or be part of a Related Business of the Company, Subsidiary Guarantor or such Restricted Subsidiary (if it continues to be a Restricted Subsidiary) immediately following such transaction, (y) Permitted Mortgage Investments, or (z) a controlling interest in the Capital Facility and to correspondingly permanently reduce commitments Stock of an entity engaged in a Related Business; provided that concurrently with respect thereto;an Investment specified in clause (z), such entity becomes a Restricted Subsidiary; or
(2) used to acquire all repay and permanently reduce Indebtedness outstanding under the Credit Facility (including that, in the case of a revolver or substantially all of the assets ofsimilar arrangement, or any Capital Stock of, another Permitted Business, if, after giving effect to any such acquisition of Capital Stock, the Permitted Business commitment is or becomes (x) a Restricted Subsidiary of the Company and (y) a Guarantor;
(3) to make capital expenditures in a Permitted Business (other than Equity Interests, Indebtedness or current assetspermanently reduced by such amount); or
(4) to acquire other assets (other than Equity Interests or Indebtedness) that are not classified as current assets under GAAP and that are used or useful in a Permitted Business. Pending the final application of any such Net ProceedsCash Proceeds as described above, the Company may temporarily reduce borrowings under the Working Capital Facility or otherwise invest the such Net Cash Proceeds in any manner that is not prohibited by this the Indenture. Any Net Cash Proceeds from Asset Sales that are not or were not applied or invested as provided in the second paragraph first sentence of this covenant paragraph (including any Net Cash Proceeds which were committed to be invested as provided in such sentence but which are not in fact invested within the time period provided) will be deemed to constitute “Excess Proceeds.” When Within 30 days following each date on which the aggregate amount of Excess Proceeds exceeds $5.0 25 million, the Company will, within five (5) days thereof, will make an Asset Sale Offer offer to all Holders and all purchase from the holders of the notes and holders of any of other senior secured Indebtedness that is of the Company ranking pari passu in right of payment and as to security interests with the Notes Securities from time to time outstanding with respect similar provisions requiring the Company to the assets that are the subject of such Asset Sale containing provisions similar to those set forth in this Indenture with respect to offers make an offer to purchase or redeem such Indebtedness with the proceeds from such Asset Sale, on a pro rata basis, an aggregate principal amount (or accreted value, as applicable) of sales of assets to purchase the maximum amount of Notes Securities and such other pari passu Indebtedness that may be purchased out of equal to the Excess Proceeds on such date, at a purchase price in accordance with the procedures set forth in Section 3.09 hereof. The offer price for the Notes in any Asset Sale Offer will be cash equal to 100% of the aggregate principal amount (or accreted value, as applicable) of the NotesSecurities and such other Indebtedness, plus plus, in each case, accrued and unpaid interest (if any) to the date Payment Date. To the extent that the aggregate amount of purchase, Securities and will be payable in cash. If any Excess Proceeds remain after consummation of other senior Indebtedness tendered pursuant to an Asset Sale OfferOffer is less than the Excess Proceeds, the Company may use those any remaining Excess Proceeds for any purpose not otherwise prohibited by this Indenturegeneral corporate purposes. If the aggregate principal amount (or accreted value, as applicable) of Notes Securities and the amount of such other pari passu Indebtedness tendered into such pursuant to an Asset Sale Offer exceeds the amount of Excess Proceeds, the Trustee shall select the Notes Securities to be purchased and such other pari passu Indebtedness to shall be purchased selected on a pro rata basis. Upon completion of each Asset Sale Offersuch Offer to Purchase, the amount of Excess Proceeds will shall be reset at zero. Notwithstanding, and without complying with, any of the foregoing provisions:
(1) the Company, the Subsidiary Guarantors and its and their respective Restricted Subsidiaries may, in the ordinary course of business, convey, sell, lease, transfer, assign or otherwise dispose of inventory acquired and held for resale in the ordinary course of business;
(2) the Company, the Subsidiary Guarantors and its and their respective Restricted Subsidiaries may convey, sell, lease, transfer, assign or otherwise dispose of assets pursuant to and in accordance with Article 5 and Section 4.13 of the Indenture;
(3) the Company, the Subsidiary Guarantors and its and their respective Restricted Subsidiaries may sell or dispose of damaged, worn out or other obsolete property in the ordinary course of business so long as such property is no longer necessary for the proper conduct of the business of the Company, the Subsidiary Guarantor or such Restricted Subsidiary, as applicable; and
(4) the Company, the Subsidiary Guarantors its and their respective Restricted Subsidiaries may exchange assets held by the Company, the Subsidiary Guarantor or a Restricted Subsidiary for one or more real estate properties and/or one or more Related Businesses of any Person or entity owning one or more real estate properties and/or one or more Related Businesses; provided that the Board of the Company has determined in good faith that the fair market value of the assets received by the Company are approximately equal to the fair market value of the assets exchanged by the Company. No transaction listed in clauses (1) through (4) inclusive shall be deemed to be an “Asset Sale.”
Appears in 2 contracts
Samples: Supplemental Indenture (Host Hotels & Resorts, Inc.), Supplemental Indenture (Host Hotels & Resorts L.P.)
Limitation on Asset Sales. The Company will shall not, and will shall not permit any of its Restricted Subsidiaries to, consummate an Asset Sale unless:
(1) the Company or the such Restricted Subsidiary, as the case may be, Subsidiary receives consideration at the time of the such Asset Sale at least equal to the Fair Market Value fair market value of the assets or Equity Interests issued or sold or otherwise disposed of;
(2) such fair market value is determined by the Board of Directors of the Company; and
(23) at least 8575.0% of the consideration therefor received in the Asset Sale by the Company or such Restricted Subsidiary is in the form of cash, Cash Equivalents or readily marketable securities. For purposes of this Section 5.104.11, each of the following will shall be deemed to be cash:
(1a) any liabilities, liabilities (as shown on the Company’s or such Restricted Subsidiary’s most recent consolidated balance sheet, ) of the Company or any Restricted Subsidiary thereof (other than contingent liabilities and Indebtedness liabilities that are (x) by their terms subordinated to the Notes or any Note Guarantee, (y) unsecured, or (z) secured by a Lien on the assets or rights that are the subject of the Asset Sale, which Lien is junior in priority to the Liens securing the Notes or any Note GuaranteeNotes) 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;
(2b) 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 recipient thereof into cash, Cash Equivalents or readily marketable securities within 180 days after receipt thereof (to the extent of the cash cash, Cash Equivalents or readily marketable securities received in that conversion);
(c) Productive Assets; and
(3d) any stock Designated Noncash Consideration received by the Issuers or assets any Restricted Subsidiary in such Asset Sale having an aggregate fair market value, taken together with all other Designated Noncash Consideration received pursuant to this clause (d) that is at that time outstanding, not to exceed the greater of (i) $1,000.0 million and (ii) 3.0% of Total Assets, with the kind referred fair market value of each item of Designated Noncash Consideration being measured at the time received and without giving effect to subsequent changes in clauses (2) or (4) of the next paragraph of this covenantvalue. Within 365 days after the receipt of any Net Proceeds from an Asset Sale, the Company (or the applicable a Restricted Subsidiary, as the case may be) Subsidiary thereof may apply such Net ProceedsProceeds at its option:
(1) to repay Indebtedness and other Obligations or otherwise retire debt under the Working Capital Facility and to correspondingly permanently reduce commitments with respect thereto;Credit Facilities or any other Indebtedness of the Restricted Subsidiaries of the Company (other than Indebtedness represented solely by a guarantee of a Restricted Subsidiary of the Company); or
(2) to acquire all or substantially all of the assets of, or any Capital Stock of, another Permitted Business, if, after giving effect to invest in Productive Assets; provided that any such acquisition amount of Capital Stock, Net Proceeds which the Permitted Business is Company or becomes (x) a Restricted Subsidiary thereof has committed to invest in Productive Assets within 365 days of the Company and (y) a Guarantor;
(3) to make capital expenditures applicable Asset Sale may be invested in a Permitted Business (other than Equity Interests, Indebtedness or current assets); or
(4) to acquire other assets (other than Equity Interests or Indebtedness) that are not classified as current assets under GAAP and that are used or useful in a Permitted BusinessProductive Assets within two years of such Asset Sale. Pending the final application The amount of any Net Proceeds, the Company may temporarily reduce borrowings under the Working Capital Facility or otherwise invest the Net Proceeds in any manner that is not prohibited by this Indenture. Any Net Proceeds received from Asset Sales that are not applied or invested as provided in the second preceding paragraph of this covenant will shall constitute “Excess Proceeds.” When the aggregate amount of Excess Proceeds exceeds $5.0 250 million, the Company will, within five (5) days thereof, shall make an Asset Sale Offer to all Holders and all holders of other senior secured Indebtedness that is pari passu in right of payment and as to security interests equal priority with the Notes with respect to the assets that are the subject of such Asset Sale containing provisions similar to those set forth in this Indenture with respect to requiring 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 of equal priority that may be purchased out of the Excess Proceeds in accordance with Proceeds, which amount includes the procedures set forth in Section 3.09 hereofentire amount of the Net Proceeds. The offer price for the Notes in any Asset Sale Offer will shall be payable in cash and equal to 100100.0% of the aggregate principal amount of the Notes, subject Notes plus accrued and unpaid interest interest, if any, to the date of purchase, and will be payable in cash. If any Excess Proceeds remain after consummation of an Asset Sale Offer, the Company may use those Excess Proceeds for any purpose not otherwise prohibited by this Indenture. If the aggregate principal amount of Notes and the amount such other Indebtedness of other pari passu Indebtedness equal priority tendered into such Asset Sale Offer exceeds the amount of Excess Proceeds, the Trustee shall select the Notes (on as nearly a pro rata basis as possible among the Notes subject to DTC procedures) and such other pari passu Indebtedness of equal priority to be purchased on a pro rata basis. If any Excess Proceeds remain after consummation of an Asset Sale Offer, then the Company or any Restricted Subsidiary thereof may use such remaining Excess Proceeds for any purpose not otherwise prohibited by this Supplemental Indenture. Upon completion of each any Asset Sale Offer, the amount of Excess Proceeds will shall be reset at zero. In the event that the Company shall be required to commence an offer to Holders to purchase Notes pursuant to this Section 4.11, it shall follow the procedures specified in Sections 3.09.
Appears in 2 contracts
Samples: First Supplemental Indenture (Charter Communications, Inc. /Mo/), Second Supplemental Indenture (Charter Communications, Inc. /Mo/)
Limitation on Asset Sales. (a) The Company will not, and will not permit any of its Restricted Subsidiaries to, consummate an Asset Sale unless:
unless (1) the Company or the applicable Restricted Subsidiary, as the case may be, receives consideration at the time of the such Asset Sale at least equal to the Fair Market Value of the assets or Equity Interests issued or sold or otherwise disposed ofof (as determined in good faith by the Company's Board of Directors); and
and (2) at least 8575% of the consideration received in the Asset Sale by the Company or the Restricted Subsidiary, as the case may be, from such Restricted Subsidiary is Asset Sale shall be in the form of cashcash and/or Cash Equivalents and is received at the time of such disposition. For purposes of this Section 5.10provision, each of the following will be deemed to be cash:
: (1A) the amount of any liabilities, liabilities (as shown on the Company’s most recent consolidated applicable balance sheet, ) of the Company or any such Restricted Subsidiary (other than contingent liabilities and Indebtedness that are (x) by their terms subordinated to the Notes or any Note Guarantee, (y) unsecured, or (z) secured by a Lien on the assets or rights that are the subject of the Asset Sale, which Lien is junior in priority to the Liens securing the Notes or any Note GuaranteeNotes) that are assumed by the transferee of any such assets pursuant so long as the documents governing such liabilities provide that there is no further recourse to a customary novation agreement that releases the Company or any of its Subsidiaries with respect to such Subsidiary from further liability;
liabilities and (2B) any securitiesnotes, notes securities or other similar obligations received by the Company or any such of its Restricted Subsidiary Subsidiaries from such transferee that are contemporaneouslyconverted, subject to ordinary settlement periodssold or exchanged, converted within one hundred eighty (180 ) days of the related Asset Sale, by the Company or any of its Restricted Subsidiaries into cash (with such Restricted Subsidiary into amount actually realized being the portion deemed to be cash, to the extent of the cash received in that conversion; and).
(3b) any stock or assets Upon the consummation of the kind referred to in clauses (2) or (4) of the next paragraph of this covenant. Within 365 days after the receipt of any Net Proceeds from an Asset Sale, the Company may apply, or cause such Restricted Subsidiary to apply, the Net Cash Proceeds relating to such Asset Sale within one hundred eighty (or the applicable Restricted Subsidiary, as the case may be180) may apply such Net Proceeds:
days of receipt thereof either (1i) to repay Indebtedness and other Obligations under the Working Capital Facility and to correspondingly permanently reduce commitments with respect thereto;
Credit Agreement; (2) to acquire all or substantially all of the assets of, or any Capital Stock of, another Permitted Business, if, after giving effect to any such acquisition of Capital Stock, the Permitted Business is or becomes (x) a Restricted Subsidiary of the Company and (y) a Guarantor;
(3ii) to make capital expenditures an investment (or to enter into a legally binding agreement to invest) in Replacement Assets or to repay any Indebtedness incurred within one hundred eighty (180) days prior to such Asset Sale and used to acquire Replacement Assets in contemplation of such Asset Sale; or (iii) a Permitted Business (other than Equity Interests, Indebtedness or current assets); orcombination of prepayment and investment permitted by the foregoing clauses.
(4c) to acquire other assets (other than Equity Interests or Indebtedness) that are not classified as current assets under GAAP and that are used or useful in a Permitted Business. Pending the final application of any such Net Cash Proceeds, the Company may temporarily reduce borrowings under the Working Capital Facility Indebtedness or otherwise invest the such Net Cash Proceeds in any manner that is not prohibited by this Indenture. Any If any such legally binding agreement to invest such Net Cash Proceeds from is terminated, then the Company may, within ninety (90) days of such termination or within one hundred eighty (180) days of such Asset Sales that are not applied or invested Sale, whichever is later, invest such Net Cash Proceeds as provided in Section 4.16(b) (without regard to the second parenthetical contained in clause (ii) thereof). The amount of such Net Cash Proceeds not so used as set forth in the immediately preceding paragraph of or in this covenant will constitute “paragraph constitutes "Excess Proceeds.” " Notwithstanding the foregoing, for purposes of determining whether an Excess Proceeds Offer is required, pursuant to clause (d) below, Excess Proceeds at any time will be reduced by the Accreted Value of Notes acquired (and surrendered to the Trustee for cancellation) by the Company through open market purchases or optional redemption subsequent to the date of the Asset Sale giving rise to the Excess Proceeds.
(d) When the aggregate amount of Excess Proceeds exceeds $5.0 million5,000,000, the Company will, within five not less than thirty (530) nor more than sixty (60) days thereoffollowing such date, make an Asset Sale Offer offer to purchase (an "Excess Proceeds Offer") from all Holders and all holders of other senior secured Indebtedness that is ranks pari passu in right of payment and as to security interests with the Notes with respect to the assets that are the subject of such Asset Sale containing provisions similar to those set forth in this Indenture with respect to requiring the redemption or prepayment or offers to purchase or redeem with the proceeds of sales of assets to purchase the maximum on a pro rata basis, that amount of Notes and such other pari passu Indebtedness that may be purchased out equal to the amount of the Excess Proceeds in accordance with the procedures set forth in Section 3.09 hereof. The offer at a price for the Notes in any Asset Sale Offer will be equal to 100% of the aggregate principal amount Accreted Value of the NotesNotes to be purchased, plus accrued and unpaid interest interest, if any, thereon to the date of purchasepurchase (provided that in the case where such other Indebtedness is outstanding under a revolving credit or similar agreement, the commitment to lend thereunder is concurrently or permanently reduced). The aggregate Accreted Value of Notes to be purchased pursuant to an Excess Proceeds Offer may be reduced by the Accreted Value of Notes acquired by the Company through open market purchases or optional redemption subsequent to the date of the Asset Sale giving rise to the Excess Proceeds Offer and surrendered to the trustee for cancellation.
(e) In the event of the transfer of substantially all (but not all) of the property and assets of the Company and its Restricted Subsidiaries as an entirety to a Person in a transaction permitted under Section 5.01, which transaction does not constitute a Change of Control, the successor corporation shall be deemed to have sold the properties and assets of the Company and its Restricted Subsidiaries not so transferred for purposes of this Section 4.16, and shall comply with the provisions of this Section 4.16 with respect to such deemed sale as if it constituted an Asset Sale. In addition, the Fair Market Value of such properties and assets of the Company or its Restricted Subsidiaries deemed to be sold shall be deemed to be Net Cash Proceeds for purposes of this Section 4.16.
(f) Each notice of an Excess Proceeds Offer pursuant to this Section 4.16 shall be mailed, by first class mail, postage prepaid, by the Company to all Holders at their last registered addresses as of a date within fifteen (15) days of the mailing of such notice, with a copy to the Trustee. The notice shall contain all instructions and materials necessary to enable such Holders to tender Notes pursuant to the Excess Proceeds Offer and shall state the following terms:
(1) that the Excess Proceeds Offer is being made pursuant to this Section 4.16 and that all Notes tendered, in whole or in part in integral multiples of $1,000, will be payable accepted for payment; provided, however, that (i) if the aggregate principal amount of Notes tendered in cash. If any an Excess Proceeds remain after consummation Offer plus accrued interest at the expiration of an Asset Sale such offer is less than the aggregate amount of the Excess Proceeds Offer, the Company may use those the deficiency for any purpose not otherwise prohibited by this Indenture and (ii) if the aggregate principal amount of Notes tendered in an Excess Proceeds Offer plus accrued interest thereon at the expiration of such offer exceeds the aggregate amount of the Excess Proceeds Offer, the Company shall select the Notes to be purchased on a pro rata basis based on amounts tendered;
(2) the purchase price (including the amount of accrued interest) and the purchase date (which shall be twenty (20) Business Days from the date of mailing of notice of such Excess Proceeds Offer, or such longer period as required by law) (the "Proceeds Purchase Date");
(3) that any Note not tendered will continue to accrue interest;
(4) that, unless the Company defaults in making payment therefor, any Note accepted for payment pursuant to the Excess Proceeds Offer shall cease to accrue interest after the Proceeds Purchase Date;
(5) that Holders electing to have a Note purchased pursuant to an Excess Proceeds Offer will be required to surrender the Note, with the form entitled "Option of Holder to Elect Purchase" on the reverse of the Note completed, to the Paying Agent at the address specified in the notice prior to the close of business on the third Business Day prior to the Proceeds Purchase Date;
(6) that Holders will be entitled to withdraw their election if the Paying Agent receives, not later than five (5) Business Days prior to the Proceeds Purchase Date, a telegram, telex, facsimile transmission or letter setting forth the name of the Holder, the principal amount of the Notes the Holder delivered for purchase and a statement that such Holder is withdrawing its election to have such Notes purchased; and
(7) that Holders whose Notes are purchased only in part will be issued new Notes in a principal amount equal to the unpurchased portion of the Notes surrendered; provided that each Note purchased and each new Note issued shall be in an original principal amount of $1,000 or integral multiples thereof. On or before the Proceeds Purchase Date, the Company shall (i) accept for payment Notes or portions thereof properly tendered pursuant to the Excess Proceeds Offer which are to be purchased in accordance with paragraph (f)(1) above, (ii) deposit with the Paying Agent U.S. Legal Tender sufficient to pay the purchase price plus accrued interest, if any, of all Notes to be purchased and (iii) deliver to the Trustee Notes so accepted together with an Officers' Certificate stating the Notes or portions thereof being purchased by the Company. The Paying Agent shall promptly mail to the Holders of Notes so accepted the purchase price for such Notes and the Trustee shall promptly authenticate and mail (or cause to be transferred by book entry) to each Holder a new Note equal in principal amount at maturity to any unpurchased portion of the Notes surrendered; provided that each such new Note shall be in a principal amount at maturity of $1,000 or an integral multiple thereof. Any Notes not so accepted shall be promptly mailed by the Company to the Holders thereof. For purposes of this Section 4.16, the Trustee shall act as the Paying Agent. Any amounts remaining after the purchase of Notes pursuant to an Excess Proceeds Offer shall be returned by the Trustee to the Company and may be used for any purpose not otherwise prohibited by this Indenture. If The Company shall comply with the aggregate principal amount requirements of Rule 14e-1 under the Exchange Act and any other securities laws and regulations thereunder to the extent such laws and regulations are applicable in connection with the repurchase of Notes and pursuant to an Excess Proceeds Offer. To the amount extent that the provisions of other pari passu Indebtedness tendered into such Asset Sale Offer exceeds the amount of Excess Proceedsany securities laws or regulations conflict with this Section 4.16, the Trustee Company shall select comply with the Notes applicable securities laws and such other pari passu Indebtedness regulations and shall not be deemed to be purchased on a pro rata basis. Upon completion of each Asset Sale Offer, the amount of Excess Proceeds will be reset at zerohave breached its obligations under this Section 4.16 by virtue thereof.
Appears in 2 contracts
Samples: Credit Agreement (Golfsmith International Holdings Inc), Indenture (Golfsmith International Holdings Inc)
Limitation on Asset Sales. The Company will shall not, and will shall not permit any of its Restricted Subsidiaries to, consummate an Asset Sale unless:
(1) the Company (or the Restricted Subsidiary, as the case may be, ) receives consideration at the time of the Asset Sale at least equal to the Fair Market Value of the assets or Equity Interests issued or sold or otherwise disposed of; and
(2) at least 8590% of the consideration received in the Asset Sale by the Company or such Restricted Subsidiary is in the form of cash, Cash Equivalents or Replacement Property. For purposes of this Section 5.10provision, each of the following will be deemed to be cash:
(1i) any liabilities, as shown on the Company’s most recent consolidated balance sheet, sheet of the Company or any Subsidiary (other than contingent liabilities and Indebtedness liabilities that are (x) by their terms subordinated to the Notes or any Note Guarantee, (y) unsecured, or (z) secured by a Lien on the assets or rights that are the subject of the Asset Sale, which Lien is junior in priority to the Liens securing the Notes or any Note Guarantee) that are assumed by the transferee of any such assets pursuant to a customary novation assignment and assumption agreement that releases the Company or such Subsidiary from further liability;
; and (2ii) any securities, notes or other obligations marketable securities 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, cash within 180 days of their receipt to the extent of the cash received in that conversion; and
(3) any stock or assets of the kind referred conversion will be deemed to in clauses (2) or (4) of the next paragraph of this covenantbe cash. Within 365 720 days after the receipt of any Net Cash Proceeds from an Asset SaleSale or any Net Loss Proceeds from an Event of Loss, the Company (or the applicable Restricted Subsidiary, as the case may be) may apply such Net Cash Proceeds, or Net Loss Proceeds, as applicable, at its option:
(1) to repay Indebtedness and other Obligations under the Working Capital Facility and to correspondingly permanently reduce commitments with respect thereto;
(2i) to acquire all or substantially all of the assets of, or any Capital Stock Equity Interests of, another Permitted BusinessPerson or make capital expenditures, if, after giving effect in compliance with Section 4.17; provided that to any such acquisition the extent the subject of Capital Stockthe Asset Sale or Event of Loss constituted Collateral, the Permitted Business is or becomes acquired assets (xother than Excluded Assets) a Restricted Subsidiary of shall be pledged as additional Collateral pursuant to the Company and (y) a GuarantorSecurity Documents;
(3ii) to make capital expenditures acquire Replacement Property; provided that to the extent the subject of the Asset Sale or Event of Loss constituted Collateral, the Replacement Property shall be pledged as additional Collateral in a Permitted Business (other than Equity Interests, Indebtedness or current assets)accordance with and pursuant to the Security Documents as provided in this Indenture; or
(4iii) to acquire other assets (other than Equity Interests or Indebtedness) that are not classified as current assets under GAAP and that are used or useful in a Permitted Business. Pending any combination of the final application of any Net Proceeds, the Company may temporarily reduce borrowings under the Working Capital Facility or otherwise invest the Net Proceeds in any manner that is not prohibited by this Indentureforegoing. Any Net Cash Proceeds from Asset Sales or Net Loss Proceeds from an Event of Loss that are not applied or invested as provided in the second preceding paragraph of this covenant Section 4.10 will constitute “Excess Proceeds.” When the aggregate amount of Excess Proceeds exceeds $5.0 10.0 million, the Company will, within five (5) days thereof30 days, make commence an Asset Sale Offer to Purchase to all Holders and all holders of other senior secured Indebtedness that is pari passu in right of payment and as to security interests with the Notes with respect equal to the assets that are the subject of such Asset Sale 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 amount of Notes and such other pari passu Indebtedness that may be purchased out of the Excess Proceeds in accordance with the procedures set forth in Section 3.09 hereofProceeds. The offer price for the Notes in any Asset Sale Offer to Purchase will be equal to 100% of the aggregate principal amount of the Notes, plus accrued and unpaid interest to to, but not including, the date of purchase, and will be payable in cash. If any Excess Proceeds remain after consummation of an Asset Sale OfferOffer to Purchase, the Company may use those Excess Proceeds funds for any purpose not otherwise prohibited by this IndentureIndenture and they will no longer constitute Excess Proceeds. If the aggregate principal amount of Notes and the amount of other pari passu Indebtedness tendered into such Asset Sale Offer exceeds the amount of Excess Proceeds, the Trustee shall will select the Notes and such other pari passu Indebtedness to be purchased on a pro rata basis. Upon completion of each Asset Sale OfferOffer to Purchase, the amount of Excess Proceeds will be reset at zero. Pending the final application of any Net Cash Proceeds or Net Loss Proceeds pursuant to this Section 4.10, the holder of such Net Cash Proceeds or Net Loss Proceeds may apply such Net Cash Proceeds or Net Loss Proceeds temporarily to reduce Debt outstanding under a revolving credit facility or otherwise invest such Net Cash Proceeds or Net Loss Proceeds in any manner not prohibited hereunder. The Company shall comply with the requirements of Rule 14e-1 under the Exchange Act and any other applicable securities laws and regulations thereunder to the extent those laws and regulations are applicable in connection with each repurchase of Notes pursuant to an Offer to Purchase. To the extent that the provisions of any securities laws or regulations conflict with the Asset Sale provisions of this Indenture, the Company shall comply with the applicable securities laws and regulations and will be deemed to have complied with its obligations under the Asset Sale provisions of this Indenture by virtue of such compliance.
Appears in 2 contracts
Samples: Indenture (Toys R Us Property Co II, LLC), Indenture (Toys R Us Inc)
Limitation on Asset Sales. The Company will shall not, and will shall not permit any of its Restricted Subsidiaries to, consummate an Asset Sale unless:
(1) the Company or the such Restricted Subsidiary, as the case may be, Subsidiary receives consideration at the time of the such Asset Sale at least equal to the Fair Market Value fair market value (for the avoidance of doubt to be determined on the date of contractually agreeing to such Asset Sale) of the assets or Equity Interests issued or sold or otherwise disposed of;
(2) such fair market value is determined by the Board of Directors of the Company; and
(23) at least 8575% of the consideration from such Asset Sale, together with all other Asset Sales since the Issue Date on a cumulative basis (including by way of relief from, or by any other Person assuming responsibility for, any liability, contingent or otherwise) received in the Asset Sale by the Company or such Restricted Subsidiary is in the form of cash, Cash Equivalents or readily marketable securities. For purposes of this Section 5.104.11, each of the following will shall be deemed to be cash:
(1a) any liabilities, liabilities (as shown on the Company’s or such Restricted Subsidiary’s most recent consolidated balance sheet, ) of the Company or any Restricted Subsidiary thereof (other than contingent liabilities and Indebtedness liabilities that are (x) by their terms subordinated to the Notes or any Note Guarantee, (y) unsecured, or (z) secured by a Lien on the assets or rights that are the subject of the Asset Sale, which Lien is junior in priority to the Liens securing the Notes or any Note GuaranteeNotes) 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;
(2b) 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 recipient thereof into cash, Cash Equivalents or readily marketable securities within 180 days after receipt thereof (to the extent of the cash cash, Cash Equivalents or readily marketable securities received in that conversion);
(c) Productive Assets; and
(3d) any stock Designated Noncash Consideration received by the Issuers or assets any Restricted Subsidiary in such Asset Sale having an aggregate fair market value, taken together with all other Designated Noncash Consideration received pursuant to this clause (d) that is at that time outstanding, not to exceed the greater of (i) $4.5 billion and (ii) 3.0% of Total Assets, with the kind referred fair market value of each item of Designated Noncash Consideration being measured at the time received and without giving effect to subsequent changes in clauses (2) or (4) of the next paragraph of this covenantvalue. Within 365 450 days after the receipt of any Net Proceeds from an Asset Sale, the Company (or the applicable a Restricted Subsidiary, as the case may be) Subsidiary thereof may apply an amount equal to the Applicable Percentage of such Net Proceeds (the “Applicable Proceeds”) at its option:
(1) to repay Indebtedness and other Obligations or otherwise retire debt under the Working Capital Facility and to correspondingly permanently reduce commitments with respect theretoCredit Facilities or any other Indebtedness of the Restricted Subsidiaries of the Company (other than Indebtedness represented solely by a guarantee of a Restricted Subsidiary of the Company);
(2) to acquire all repay or substantially all otherwise retire unsecured Indebtedness of the assets ofCompany, or any Capital Stock of, another Permitted Business, if, after giving effect to any such acquisition of Capital Stock, the Permitted Business so long as a pro rata offer is or becomes (x) a Restricted Subsidiary of the Company and (y) a Guarantor;
(3) to make capital expenditures in a Permitted Business (other than Equity Interests, Indebtedness or current assets); or
(4) to acquire other assets (other than Equity Interests or Indebtedness) that are not classified as current assets under GAAP and that are used or useful in a Permitted Business. Pending the final application of any Net Proceeds, the Company may temporarily reduce borrowings under the Working Capital Facility or otherwise invest the Net Proceeds in any manner that is not prohibited by this Indenture. Any Net Proceeds from Asset Sales that are not applied or invested as provided in the second paragraph of this covenant will constitute “Excess Proceeds.” When the aggregate amount of Excess Proceeds exceeds $5.0 million, the Company will, within five (5) days thereof, make an Asset Sale Offer to all Holders and all holders of other senior secured Indebtedness that is pari passu in right of payment and as to security interests with the Notes with respect to the assets that are the subject of such Asset Sale 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 amount of Notes and such other pari passu Indebtedness that may be purchased out of the Excess Proceeds made in accordance with the procedures set forth in Section 3.09 hereof. The offer price for the Notes next paragraph to all holders of other unsecured Indebtedness issued by the Company; or
(3) to invest in Productive Assets; provided that any such amount of Net Proceeds which the Company or a Restricted Subsidiary thereof has committed to invest in Productive Assets within 450 days of the applicable Asset Sale Offer will may be equal to 100% invested in Productive Assets within two years of such Asset Sale; provided that (1) pending the aggregate principal amount final application of the Notes, plus accrued and unpaid interest to the date of purchase, and will be payable in cash. If any Excess Proceeds remain after consummation of an Asset Sale Offer, the Company may use those Excess Proceeds for any purpose not otherwise prohibited by this Indenture. If the aggregate principal amount of Notes and the amount of other pari passu Indebtedness tendered into any such Asset Sale Offer exceeds the amount of Excess Proceeds, the Trustee shall select the Notes and such other pari passu Indebtedness Applicable Proceeds pursuant to be purchased on a pro rata basis. Upon completion of each Asset Sale Offer, the amount of Excess Proceeds will be reset at zero.this
Appears in 2 contracts
Samples: Tenth Supplemental Indenture (Cco Holdings LLC), Eighth Supplemental Indenture (Cco Holdings LLC)
Limitation on Asset Sales. (a) The Company will shall not, and will shall not permit any of its Restricted Subsidiaries Subsidiary to, consummate an Asset Sale unless:
(1i) the Company (or the Restricted Subsidiary, as the case may be, ) receives consideration at the time of the such Asset Sale at least equal to the Fair Market Value of the assets or Equity Interests issued or sold or otherwise disposed of, or Restricted Subsidiary Equity Interests issued, in such Asset Sale; and
(2ii) at least 8575.0% of the consideration therefor received in the Asset Sale by the Company or such Restricted Subsidiary is in the form of cash. For cash or Cash Equivalents; provided, however, that, for purposes of the provisions set forth in this Section 5.10clause (ii) and for no other purpose, each the amount of the following will be deemed to be cash:
(1) any liabilities, liabilities (as shown on the Company’s or such Restricted Subsidiary’s most recent consolidated balance sheet, ) of the Company or any Restricted Subsidiary (other than contingent liabilities and Indebtedness liabilities that are (x) by their terms subordinated to the Notes or any Note Guarantee, (y) unsecured, or (z) secured by a Lien on the assets or rights that are the subject of the Asset Sale, which Lien is junior in priority to the Liens securing the Notes or any Note GuaranteeGuarantee thereof) that are assumed by the transferee of any such assets pursuant to a customary novation agreement that releases the Company or such Restricted Subsidiary from further liability;
liability (or are otherwise extinguished in connection with the transactions relating to such Asset Sale), (2) 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 any Restricted Subsidiary into cashcash or Cash Equivalents within 180 days of receipt, to the extent of the cash or Cash Equivalents received in that conversion; and
and (3) the Fair Market Value of any stock property or assets received (including any Capital Stock of the kind referred any Person that shall be a Restricted Subsidiary following receipt thereof) that are used or useful in any Related Business, in each case shall be deemed to in clauses (2) or (4) of the next paragraph of this covenantbe cash. Within 365 days after the Company or any Restricted Subsidiary’s receipt of such Net Cash Proceeds, the Company or such Restricted Subsidiary may apply such Net Cash Proceeds, at its option:
(1) to prepay or otherwise pay or repay, purchase, redeem, defease, discharge, cash-collateralize or otherwise acquire or retire (A) Secured Indebtedness of the Company or any Guarantor (and, if such Indebtedness is under a revolving credit facility, to correspondingly reduce commitments with respect thereto), (B) Senior Indebtedness (other than Secured Indebtedness) of the Company or any Guarantor (and, if such Indebtedness is under a revolving credit facility, to correspondingly reduce commitments with respect thereto); provided, however, that if any such Senior Indebtedness described in this clause (B) other than the Notes are repaid with such Net Cash Proceeds, the Company shall equally and ratably reduce the Notes through open-market purchases (provided, however, that such purchases are at or above 100% of the principal amount thereof), by redeeming Notes in accordance with Section 3.07 or by making an offer (in accordance with the procedures set forth below for an Asset Sale Offer) to all holders of the Notes to purchase at a purchase price equal to 100% of the principal amount thereof, plus accrued and unpaid interest, the pro rata principal amount of the Notes or (C) Indebtedness of a Restricted Subsidiary that is not a Guarantor, in the case of each of clause (A), (B) and (C), other than Indebtedness owed to the Company or its Affiliates;
(2) to make an Investment in any one or more businesses (provided, however, that if such Investment is in the form of the acquisition of Capital Stock of a Person, such acquisition results in such Person becoming a Restricted Subsidiary if it is not already a Restricted Subsidiary), assets, or property or capital expenditures (including refurbishments), in each case used or useful in a Related Business; or
(3) to make a combination of any prepayments or other payments or repayments, purchases, redemptions, defeasances, discharges, cash collateralizations or other acquisitions or retirements and any Investments permitted by the foregoing clauses (1) and (2). In the case of an Investment contemplated by clause (2) above or clause (3) above, a binding commitment shall be treated as a permitted application of the Net Cash Proceeds from the date of such commitment; provided, however, that in the event such binding commitment is later canceled or terminated for any reason before such Net Cash Proceeds are so applied, the Company or Restricted Subsidiary enters into another binding commitment (a “Second Commitment”) to make an Investment permitted by such clause (2) or clause (3) within nine months of such cancellation or termination of the prior binding commitment; provided further, however, that the Company and its Restricted Subsidiaries may only enter into a Second Commitment under the foregoing provision one time with respect to each Asset Sale.
(b) If, on the 366th day after receipt by the Company or a Restricted Subsidiary of Net Cash Proceeds with respect to an Asset Sale, any such Net Cash Proceeds have not been applied as permitted by Section 4.06(a) (such Net Cash Proceeds received and not so applied being “Excess Proceeds” and the date of such 366th day being an “Asset Sale Offer Trigger Date”), the Company or one or more Restricted Subsidiaries shall make an offer to all Holders and, if required or permitted by the terms of any Senior Indebtedness, to the holders of such Senior Indebtedness, to purchase (the “Asset Sale Offer”), on a date not less than 30 nor more than 60 days following the applicable Asset Sale Offer Trigger Date, from all Holders and holders of such Senior Indebtedness on a pro rata basis (or as nearly pro rata as practicable) based on the accreted value or principal amount, as applicable, of the Notes and such Senior Indebtedness tendered pursuant to such Asset Sale Offer, that amount of Notes and such Senior Indebtedness equal to the applicable Excess Proceeds (minus any federal, state, provincial, foreign and local taxes payable as a result of the transfer or deemed transfer of funds from the entity that made the Asset Sale to the entity that is making such Asset Sale Offer) at a price equal to 100.0% of the principal amount of the Notes to be purchased, plus accrued and unpaid interest thereon, if any, to but excluding the date of purchase (or, in respect of such Senior Indebtedness, the price provided for by the terms of such Senior Indebtedness); provided, however, that if at any time any non-cash consideration received by the Company or any Restricted Subsidiary, as the case may be) may apply such Net Proceeds:
, in connection with any Asset Sale is converted into or sold or otherwise disposed of for cash (1) to repay Indebtedness and other Obligations under the Working Capital Facility and to correspondingly permanently reduce commitments than interest received with respect thereto;
(2) to acquire all or substantially all of the assets of, or any Capital Stock of, another Permitted Business, if, after giving effect to any such acquisition of Capital Stocknon-cash consideration), the Permitted Business is or becomes (x) a Restricted Subsidiary then, solely for purposes of the Company and (y) a Guarantor;
(3) to make capital expenditures in a Permitted Business (other than Equity Interests, Indebtedness or current assets); or
(4) to acquire other assets (other than Equity Interests or Indebtedness) that are not classified as current assets under GAAP and that are used or useful in a Permitted Business. Pending the final application definition of any Net Cash Proceeds, the Company may temporarily reduce borrowings under the Working Capital Facility such conversion or otherwise invest disposition shall be deemed to constitute an Asset Sale, and the Net Cash Proceeds in any manner that is not prohibited by this Indenture. Any Net Proceeds from Asset Sales that are not thereof shall be applied or invested as provided in the second paragraph of this covenant will constitute “Excess Proceeds.” When the aggregate amount of Excess Proceeds exceeds $5.0 million, the Company will, within five (5) days thereof, make an Asset Sale Offer to all Holders and all holders of other senior secured Indebtedness that is pari passu in right of payment and as to security interests with the Notes with respect to the assets that are the subject of such Asset Sale 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 amount of Notes and such other pari passu Indebtedness that may be purchased out of the Excess Proceeds in accordance with the procedures set forth in provisions of this Section 3.09 hereof4.06 governing the application of the Net Cash Proceeds from an Asset Sale. The offer price for the If Holders do not tender Notes in any Asset Sale Offer will be equal to 100% of the an aggregate principal amount of the Notes, plus accrued and unpaid interest at least equal to the date of purchase, and will be payable in cash. If any applicable Excess Proceeds remain after consummation of an for purchase in connection with any Asset Sale Offer, the Company and the Restricted Subsidiaries may use those the portion of the Excess Proceeds not used to purchase Notes for any purpose not otherwise prohibited by this Indenture. If the aggregate principal amount of Notes and the amount of other pari passu Indebtedness tendered into such Asset Sale Offer exceeds the amount of Excess Proceeds, the Trustee shall select the Notes and such other pari passu Indebtedness to be purchased on a pro rata basis. Upon completion of each Asset Sale Offer, the Excess Proceeds shall be reduced by the amount of the Asset Sale Offer. Notwithstanding the occurrence of an Asset Sale Offer Trigger Date, the Company and the Restricted Subsidiaries may defer the Asset Sale Offer until there is an aggregate unutilized Excess Proceeds will of at least $25,000,000 resulting from one or more Asset Sales (at which time, the entire unutilized Excess Proceeds, and not just the amount in excess of $25,000,000, shall be reset applied as required pursuant to this Section 4.06). The Company and the Restricted Subsidiaries may satisfy the obligations set forth in this Section 4.06(b) with respect to any Net Cash Proceeds from an Asset Sale by making an Asset Sale Offer with respect to such Net Cash Proceeds prior to an applicable Asset Sale Offer Trigger Date. If the date on which a Note is purchased pursuant to an Asset Sale Offer is on or after an interest record date and on or before the related interest payment date, any accrued and unpaid interest on that Note shall be paid to the Person that was, at zerothe close of business on such record date, the Holder of that Note, and no additional interest for the period to which that interest record date relates shall be payable, with respect to that Note, to the Person who tendered that Note pursuant to the Asset Sale Offer.
(c) Each Asset Sale Offer shall be mailed (or otherwise sent in accordance with applicable procedures of the Depository) to the record Holders as shown on the register of Holders within 30 days following the Asset Sale Offer Trigger Date, with a copy to the Trustee, and shall comply with the procedures set forth in this Indenture. Upon receiving notice of the Asset Sale Offer, Holders may elect to tender their Notes in whole or in part in amounts equal to $2,000 or integral multiples of $1,000 in excess thereof in exchange for cash. To the extent Holders properly tender Notes in an amount exceeding the Excess Proceeds, the tendered Notes shall be purchased on a pro rata basis (or as nearly pro rata as practicable) based on the amount of Notes tendered. An Asset Sale Offer shall remain open for a period of 20 Business Days or such longer period as may be required by law. The Company shall comply with the requirements of Rule 14e-1 under the Exchange Act and any other securities laws and regulations thereunder to the extent such laws and regulations are applicable in connection with the repurchase of Notes pursuant to an Asset Sale Offer. To the extent that the provisions of any securities laws or regulations conflict with the requirements of this Section 4.06, the Company shall comply with the applicable securities laws and regulations and shall not be deemed to have breached its obligations under this Section 4.06 by virtue thereof.
Appears in 2 contracts
Samples: Indenture (Credit Acceptance Corp), Indenture (Credit Acceptance Corp)
Limitation on Asset Sales. The Company will (a) Parent shall not, and will shall not permit any of its the Restricted Subsidiaries to, consummate an any Asset Sale Sale, unless:
(1) the Company consideration received by Parent or the such Restricted Subsidiary, as the case may be, receives consideration at the time of the Asset Sale Subsidiary is at least equal to the Fair Market Value fair market value of the assets or Equity Interests issued or sold or otherwise disposed of; and
(2) at least 8575% of the consideration received in the Asset Sale by the Company or such Restricted Subsidiary is in the form consists of cash. , Temporary Cash Investments or Replacement Assets, or a combination of cash, Temporary Cash Investments or Replacement Assets; provided, however, with respect to the sale of one or more properties that up to 75% of the consideration may consist of Indebtedness of the purchaser of such properties so long as such Indebtedness is secured by a first priority Lien on the property or properties sold.
(b) For purposes of this Section 5.104.11, each of the following will shall be deemed to be cash:
(1) any liabilities, liabilities of Parent or the Restricted Subsidiaries (as shown on the Company’s most recent consolidated balance sheet, sheet of Parent and the Company or any Subsidiary (Restricted Subsidiaries other than contingent liabilities and Indebtedness liabilities that are (x) by their terms subordinated to the Notes or any Note Guarantee, (y) unsecured, or (z) secured by a Lien on the assets or rights that are the subject of the Asset Sale, which Lien is junior in priority to the Liens securing the Notes or any Note GuaranteeGuaranty) that are assumed by the transferee of any such assets pursuant to a customary novation an agreement that releases the Company Parent or any such Restricted Subsidiary from further liabilityliability with respect to such liabilities or that are assumed by contract or operation of law;
(2) any securities, notes or other obligations received by the Company Parent or any such Restricted Subsidiary from such transferee that are contemporaneously, subject to ordinary settlement periods, converted by the Company Parent or such Restricted Subsidiary into cash, cash or Temporary Cash Investments within 180 days (to the extent of the cash or Temporary Cash Investments received in that conversion); and
(3) any stock Designated Non-Cash Consideration received by Parent or assets any such Restricted Subsidiary in such Asset Sale having an aggregate fair market value, taken together with all other Designated Non-Cash Consideration received pursuant to this clause (3) that is at the time outstanding, not to exceed the greater of (x) $50,000,000 and (y) 2.0% of the kind referred to in clauses (2) or (4) Issuers’ Adjusted Total Assets at the time of the next paragraph receipt of this covenant. such Designated Non-Cash Consideration, with the fair market value of each item of Designated Non-Cash Consideration being measured at the time received and without giving effect to subsequent changes in value.
(c) Within 365 days after the receipt of any Net Cash Proceeds from an Asset Sale, the Company (Parent or the applicable any such Restricted Subsidiary, as the case may be) Subsidiary may apply such Net Cash Proceeds:
(1) to repay prepay, repay, redeem or purchase Pari Passu Indebtedness and of the Issuers or a Subsidiary Guarantor that is Secured Indebtedness (in each case other Obligations under than Indebtedness owed to the Working Capital Facility and to correspondingly permanently reduce commitments with respect theretoIssuers or an Affiliate of the Issuers);
(2) to make an Investment in (provided such Investment is in the form of Capital Stock), or to acquire all or substantially all of the assets of, or any Capital Stock of, another Permitted Business, if, after giving effect to any such acquisition of Capital Stock, the a Person engaged in a Permitted Business is if such Person is, or becomes (x) will become as a result thereof, a Restricted Subsidiary of the Company and (y) a GuarantorSubsidiary;
(3) to prepay, repay, redeem or purchase Pari Passu Indebtedness of Parent, an Issuer or of any Subsidiary Guarantor or any Indebtedness of a Restricted Subsidiary that is not a Subsidiary Guarantor; provided, however, that if Parent, the Issuers or a Subsidiary Guarantor shall so prepay, repay, redeem or purchase any such Pari Passu Indebtedness, the Issuers shall equally and ratably reduce obligations under the Notes if the Notes are then prepayable or, if the Notes may not then be prepaid, the Issuers shall make capital expenditures an offer (in a Permitted Business (other than Equity Interestsaccordance with the procedures set forth below) with the ratable proceeds to all Holders to purchase their Notes at 100% of the principal amount thereof, Indebtedness or current assets); orplus accrued but unpaid interest, if any, thereon, up to the principal amount of Notes that would otherwise be prepaid;
(4) to fund all or a portion of an optional redemption of the Notes pursuant to Section 5 of the Notes;
(5) to make a capital expenditure;
(6) to acquire other assets (other than Equity Interests Replacement Assets to be used or Indebtedness) that are not classified as current assets under GAAP and that are used or useful in a Permitted Business; or
(7) any combination of the foregoing; provided that the Issuers shall be deemed to have complied with the provisions described in clauses (2), (5) and (6) of this paragraph if and to the extent that, within 365 days after the Asset Sale that generated the Net Cash Proceeds, Parent or any of the Restricted Subsidiaries has entered into and not abandoned or rejected a binding agreement to acquire the assets or Capital Stock of a Permitted Business, acquire Replacement Assets or make a capital expenditure in compliance with the provisions described in clauses (2), (5) and (6) of this paragraph (each an “Acceptable Commitment”), and that Acceptable Commitment (or a replacement commitment should the Acceptable Commitment be subsequently cancelled or terminated for any reason) is thereafter completed within 180 days after the end of such 365-day period. Pending the final application of any such Net Cash Proceeds, the Company Issuers may temporarily reduce borrowings the revolving Indebtedness under the Working Capital any Credit Facility or otherwise invest the such Net Cash Proceeds in any manner that is not prohibited by this Indenture. Any The amount of such excess Net Cash Proceeds from Asset Sales that are required to be applied (or to be committed to be applied) during such 365-day period as set forth in this paragraph (c) and not so applied or invested as provided in by the second paragraph end of this covenant will such period shall constitute “Excess Proceeds.” ”
(d) When the aggregate amount of Excess Proceeds exceeds $5.0 million25,000,000, the Company will, within five (5) days thereof, Issuers shall make an Asset Sale Offer offer to all Holders and all holders of other senior secured the Notes and, if required by the terms of any Indebtedness that is pari passu in right of payment and as to security interests with the Notes with respect Pari Passu Indebtedness, to the assets that are the subject holders of such Pari Passu Indebtedness on a pro rata basis (an “Asset Sale 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 Offer”), to purchase the maximum aggregate principal amount of the Notes and such other pari passu Pari Passu Indebtedness that is in an amount equal to at least $2,000, that may be purchased out of the Excess Proceeds at an offer price in cash in an amount equal to 100.0% of the principal amount thereof (or accreted value thereof, if less), plus accrued and unpaid interest, if any, to the date fixed for the closing of such offer, in accordance with the procedures set forth in Section 3.09 hereofthis Indenture. The offer price for the Notes in any Issuers will commence an Asset Sale Offer will be equal with respect to 100% of Excess Proceeds within 20 Business Days after the aggregate principal amount of date that Excess Proceeds exceed $25,000,000 by delivering the Notes, plus accrued and unpaid interest notice required pursuant to the date terms of purchasethis Indenture, and will be payable in cashwith a copy to the Trustee. If The Issuers may satisfy the foregoing obligations with respect to any Excess Proceeds remain after consummation of from an Asset Sale Offerby making an Asset Sale Offer with respect to such Excess Proceeds prior to the expiration of the relevant 365 days or with respect to Excess Proceeds of $25,000,000 or less.
(e) To the extent that the aggregate amount of Notes and such Pari Passu Indebtedness tendered pursuant to an Asset Sale Offer is less than the Excess Proceeds, Parent and the Company Restricted Subsidiaries may use those any remaining Excess Proceeds for any purpose not otherwise prohibited by this Indenture. If the aggregate principal amount of Notes and or the amount of other pari passu Pari Passu Indebtedness tendered into surrendered by such Asset Sale Offer holders thereof exceeds the amount of Excess Proceeds, the Trustee shall select the Notes and the Issuers shall select such other pari passu Pari Passu Indebtedness to be purchased on a pro rata basisbasis based on the accreted value or principal amount of the Notes or such Pari Passu Indebtedness tendered. Upon completion of each any such Asset Sale Offer, the amount of Excess Proceeds will that resulted in the Asset Sale Offer shall be reset at to zero. Parent may satisfy the foregoing obligation with respect to any Net Cash Proceeds prior to the expiration of the relevant 365 day period (as such period may be extended in accordance with this Indenture). Nothing in this paragraph shall preclude the Issuers from making an Asset Sale Offer even if the amount of Excess Proceeds not previously subject to an Asset Sale Offer pursuant to this Section 4.11 covenant totals less than $25,000,000.
(f) Pending the final application of any Net Cash Proceeds pursuant to this Section 4.11, the holder of such Net Cash Proceeds may apply such Net Cash Proceeds temporarily to reduce Indebtedness outstanding under a revolving Indebtedness under any Credit Facility or otherwise invest such Net Cash Proceeds in any manner not prohibited by this Indenture.
(g) The Issuers will comply with the requirements of Rule 14e-1 under the Exchange Act and any other securities laws and regulations thereunder to the extent such laws or regulations are applicable in connection with the repurchase of the Notes pursuant to an Asset Sale Offer. To the extent that the provisions of any securities laws or regulations conflict with the provisions of this Indenture, the Issuers will comply with the applicable securities laws and regulations and shall not be deemed to have breached its obligations described in this Indenture by virtue thereof.
Appears in 2 contracts
Samples: Indenture (Ryman Hospitality Properties, Inc.), Indenture (Ryman Hospitality Properties, Inc.)
Limitation on Asset Sales. The Company will not, and will not permit any of its Restricted Subsidiaries to, consummate an Asset Sale unless:
(1) the Company or the applicable Restricted Subsidiary, as the case may be, receives consideration at the time of the such Asset Sale at least equal to the Fair Market Value fair market value of the assets or Equity Interests issued or sold or otherwise disposed of; and, as determined in good faith by the Company’s Board of Directors;
(2) at least 8575% of the consideration received in the Asset Sale by the Company or such Restricted Subsidiary exclusive of indemnities, as the case may be, from such Asset Sale is in cash or Cash Equivalents and is received at the form time of cash. For purposes such disposition; provided that the amount of this Section 5.10, each (a) any liabilities of the following will be deemed to be cash:
(1) Company or any liabilitiessuch Restricted Subsidiary, as shown on the Company’s or such Restricted Subsidiary’s most recent consolidated balance sheet, of the Company or any Subsidiary (other than contingent liabilities and Indebtedness that are (x) by their terms subordinated to the Notes or any Note Guarantee, (y) unsecured, or (z) secured by a Lien on the assets or rights that are the subject of the Asset Sale, which Lien is junior in priority to the Liens securing the Notes or any Note Guarantee) that are assumed by the transferee of any such assets pursuant to a customary novation agreement that releases the Company or such Subsidiary from further liability;
assets, (2b) 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 cashcash or Cash Equivalents within 60 days of the time of such disposition, to the extent of the cash or Cash Equivalents received and (c) any Designated Non-Cash Consideration received by the Company or any of its Restricted Subsidiaries in that conversionsuch Asset Sale having an aggregate fair market value, taken together with all other Designated Non-Cash Consideration received pursuant to this clause (c), not to exceed $50.0 million, with the fair market value of each item of Designated Non-Cash Consideration being measured at the time received and without giving effect to subsequent changes in value, will be deemed to be cash for the purposes of this clause (2); and
(3) any stock or assets upon the consummation of the kind referred to in clauses (2) or (4) of the next paragraph of this covenant. Within 365 days after the receipt of any Net Proceeds from an Asset Sale, the Company (applies directly or the applicable through a Restricted Subsidiary, as or causes such Restricted Subsidiary to apply, the case may be) may apply Net Cash Proceeds relating to such Net Proceeds:
Asset Sale within 360 days of receipt thereof either (1A) to repay Senior Debt (and in the case of any Indebtedness outstanding under a revolving credit facility and other Obligations under the Working Capital Facility and repaid in satisfaction of this covenant, to correspondingly permanently reduce commitments the amounts that may be reborrowed thereunder by an equivalent amount), with the Net Cash Proceeds received in respect thereto;
thereof, (2B) to acquire all reinvest in Productive Assets, or substantially all (C) a combination of prepayment, reduction and investment permitted by the foregoing clauses (3)(A) and (3)(B); provided that the 75% limitation referred to above will not apply to any sale, transfer or other disposition of assets in which the cash portion of the assets ofconsideration received therefor is equal to or greater than what the after-tax net proceeds would have been had such transaction complied with the aforementioned 75% limitation. On the 361st day after an Asset Sale or such earlier date, or any Capital Stock ofif any, another Permitted Business, if, after giving effect to any such acquisition as the Board of Capital Stock, the Permitted Business is or becomes (x) a Restricted Subsidiary Directors of the Company or of such Restricted Subsidiary determines not to apply the Net Cash Proceeds relating to such Asset Sale as set forth in clauses (3)(A), (3)(B) and (y3)(C) of the preceding sentence (each, a Guarantor;
“Net Proceeds Offer Trigger Date”), such aggregate amount of Net Cash Proceeds that have not been so applied on or before such Net Proceeds Offer Trigger Date as permitted in clauses (33)(A), (3)(B) and (3)(C) of the preceding sentence (each, a “Net Proceeds Offer Amount”) will be applied by the Issuer to make capital expenditures in an offer to repurchase (the “Net Proceeds Offer”) on a Permitted Business date (other the “Net Proceeds Offer Payment Date”) not less than Equity Interests30 nor more than 45 days following the applicable Net Proceeds Offer Trigger Date, Indebtedness or current assets); or
(4) from all Holders on a pro rata basis that amount of Securities equal to acquire other assets (other than Equity Interests or Indebtedness) that are not classified as current assets under GAAP and that are used or useful in a Permitted Business. Pending the final application of any Net Proceeds, the Company may temporarily reduce borrowings under the Working Capital Facility or otherwise invest the Net Proceeds in Offer Amount multiplied by a fraction, the numerator of which is the aggregate principal amount of Securities then outstanding and the denominator of which is the sum of the aggregate principal amount of Securities and Pari Passu Indebtedness then outstanding (the “Pro Rata Share”), at a price equal to 100% of the principal amount of the Securities to be repurchased, plus accrued interest to the date of repurchase. Notwithstanding the foregoing, if a Net Proceeds Offer Amount is less than $20.0 million, the application of the Net Cash Proceeds constituting such Net Proceeds Offer Amount to a Net Proceeds Offer may be deferred until such time as such Net Proceeds Offer Amount plus the aggregate amount of all Net Proceeds Offer Amounts arising subsequent to the Net Proceeds Offer Trigger Date relating to such initial Net Proceeds Offer Amount from all Asset Sales by the Company and its Restricted Subsidiaries aggregates at least $20.0 million, at which time the Issuer will apply all Net Cash Proceeds constituting all Net Proceeds Offer Amounts that have been so deferred to make a Net Proceeds Offer, the first date the aggregate of all such deferred Net Proceeds Offer Amounts is at least $20.0 million being deemed to be a Net Proceeds Offer Trigger Date. To the extent that the aggregate purchase price of Securities tendered pursuant to any manner that Net Proceeds Offer is less than the Pro Rata Share, the Issuer or any Guarantor may use such amount for any purpose not prohibited by this Indenture. Any Upon completion of any Net Proceeds from Asset Sales that are not applied or invested as provided in Offer, the second paragraph Net Proceeds Offer Amount shall be reset to zero. Notwithstanding the first two paragraphs of this covenant will constitute “Excess Proceeds.” When the aggregate amount of Excess Proceeds exceeds $5.0 millionSection 4.16, the Company will, within five (5) days thereof, make and its Restricted Subsidiaries will be permitted to consummate an Asset Sale Offer without complying with such paragraphs to all Holders the extent
(1) at least 50% of the consideration for such Asset Sale constitutes Productive Assets; and
(2) such Asset Sale is for fair market value; provided that if the fair market value is determined to exceed $50.0 million, such determination will be made in good faith by the Company’s Board of Directors; provided, further, that the fair market value of any consideration not constituting Productive Assets received by the Company or any of its Restricted Subsidiaries in connection with any Asset Sale permitted to be consummated under this paragraph will constitute Net Cash Proceeds subject to the provisions of the first two paragraphs of this Section 4.16. In the event of the transfer of substantially all, but not all, of the property and all holders assets of other senior secured Indebtedness that is pari passu the Company and its Restricted Subsidiaries as an entirety to a Person in right a transaction permitted under Section 5.01, the successor corporation will be deemed to have sold the properties and assets of payment the Company and as to security interests its Restricted Subsidiaries not so transferred for purposes of this Section 4.16, and will comply with the Notes provisions of this Section 4.16 with respect to such deemed sale as if it were an Asset Sale. In addition, the assets that are the subject fair market value of such Asset Sale containing provisions similar to those set forth in this Indenture with respect to offers to purchase or redeem with the proceeds of sales of properties and assets to purchase the maximum amount of Notes and such other pari passu Indebtedness that may be purchased out of the Excess Company or its Restricted Subsidiaries deemed to be sold will be deemed to be Net Cash Proceeds in accordance with the procedures set forth in for purposes of this Section 3.09 hereof4.16. The offer price for the Notes in any Asset Sale Notice of a Net Proceeds Offer will be equal mailed, by first class mail, by the Issuer to 100% Holders as shown on the register of Holders at their last registered address not less than 30 days nor more than 60 days before the Net Proceeds Offer Payment Date, with a copy to the Trustee. The notice shall contain instructions and materials necessary to enable such Holders to tender Securities pursuant to the Net Proceeds Offer and shall state the following terms:
(1) that the Net Proceeds Offer is being made pursuant to this Section 4.16, that all Securities tendered will be accepted for payment; provided, however, that if the aggregate principal amount of the Notes, Securities tendered in a Net Proceeds Offer plus accrued and unpaid interest to at the date expiration of purchase, and will be payable in cash. If any Excess such offer exceeds the aggregate amount of the Net Proceeds remain after consummation of an Asset Sale Offer, the Company may use those Excess Proceeds for any purpose not otherwise prohibited by this Indenture. If the aggregate principal amount of Notes and the amount of other pari passu Indebtedness tendered into such Asset Sale Offer exceeds the amount of Excess Proceeds, the Trustee Issuer shall select the Notes and such other pari passu Indebtedness Securities to be purchased on a pro rata basisbasis (with such adjustments as may be deemed appropriate by the Issuer so that only Securities in denominations of $2,000 or multiples thereof shall be purchased) and that the Net Proceeds Offer shall remain open for a period of 20 Business Days or such longer period as may be required by law;
(2) the Net Proceeds Offer Amount (including the amount of accrued interest) and the Net Proceeds Offer Payment Date (which shall be not less than 30 nor more than 45 days following the applicable Net Proceeds Offer Trigger Date and which shall be at least five Business Days after the Trustee receives notice thereof from the Issuer);
(3) that any Security not tendered will continue to accrue interest;
(4) that, unless the Issuer defaults in making payment therefor, any Security accepted for payment pursuant to the Net Proceeds Offer shall cease to accrue interest after the Net Proceeds Offer Payment Date;
(5) that Holders electing to have a Security purchased pursuant to a Net Proceeds Offer will be required to surrender the Security, with the form entitled “Option of Holder to Elect Purchase” on the reverse of the Security completed, to the Paying Agent at the address specified in the notice prior to the close of business on the Business Day prior to the Net Proceeds Offer Payment Date;
(6) that Holders will be entitled to withdraw their election if the Paying Agent receives, not later than the second Business Day prior to the Net Proceeds Offer Payment Date, a telegram, telex, facsimile transmission or letter setting forth the name of the Holder, the principal amount of the Securities such Holder delivered for purchase and a statement that such Holder is withdrawing his election to have such Securities purchased; and
(7) that Holders whose Securities are purchased only in part will be issued new Securities in a principal amount equal to the unpurchased portion of the Securities surrendered; provided, however, that each Security purchased and each new Security issued shall be in an original principal amount of $2,000 or any greater integral multiple of $1,000 thereof. Upon completion On or before the Net Proceeds Offer Payment Date, the Issuer shall (i) accept for payment Securities or portions thereof tendered pursuant to the Net Proceeds Offer which are to be purchased in accordance with item (1) above, (ii) deposit with the Paying Agent U.S. Legal Tender sufficient to pay the purchase price plus accrued interest, if any, of each Asset Sale all Securities to be purchased and (iii) deliver to the Trustee Securities so accepted together with an Officers’ Certificate of the Issuer stating the Securities or portions thereof being purchased by the Issuer. The Paying Agent shall promptly mail to the Holders of Securities so accepted payment in an amount equal to the purchase price plus accrued interest, if any. For purposes of this Section 4.16, the Trustee shall act as the Paying Agent. Any amounts remaining after the purchase of Securities pursuant to a Net Proceeds Offer promptly shall be returned by the Trustee to the Issuer. If an offer is made to repurchase the Securities pursuant to a Net Proceeds Offer, the amount Company will and will cause its Restricted Subsidiaries to comply with all tender offer rules under state and federal securities laws, including, but not limited to, Section 14(e) under the Exchange Act and Rule 14e-1 thereunder, to the extent applicable to such offer. To the extent that the provisions of Excess Proceeds will any securities laws or regulations conflict with this Section 4.16, the Company and the Issuer shall comply with the applicable securities laws and obligations and shall not be reset at zerodeemed to have breached their obligations hereunder by virtue thereof.
Appears in 2 contracts
Samples: Indenture (Scientific Games Corp), Indenture (Scientific Games Corp)
Limitation on Asset Sales. (a) The Company will shall not, and will shall not permit any of its Restricted Subsidiaries to, consummate an Asset Sale unless:
(1) the Company or the such Restricted Subsidiary, as the case may be, receives consideration at the time of the Asset Sale such sale or other disposition at least equal to the Fair Market Value fair market value of the assets or Equity Interests issued or sold or otherwise disposed of; and;
(2) at least 85except in the case of an Asset Sale (A) the consideration with respect to which does not exceed $5.0 million or (B) that pertain to assets which did not contribute more than 5% of EBITDA for the four full fiscal quarters immediately preceding the date of the Asset Sale, not less than 75% of the consideration received in the Asset Sale by the Company or such Restricted Subsidiary Subsidiary, as the case may be, is in the form of cash. For purposes of this Section 5.10, each of cash or Cash Equivalents; provided that the following will be deemed to be cash:cash for purposes of this clause (2):
(1a) any liabilities, liabilities (as shown on the Company’s 's or such Restricted Subsidiary's most recent consolidated balance sheet, ) of the Company or any Restricted Subsidiary (other than contingent liabilities and Indebtedness liabilities that are (x) by their terms subordinated subordinate in right of payment to the Notes or any Note Guarantee, (y) unsecured, or (z) secured by a Lien on the assets or rights that are the subject of the Asset Sale, which Lien is junior in priority to the Liens securing the Notes or any Note Guarantee) that are assumed by the transferee of any such assets pursuant to a customary novation agreement that releases the Company or such Restricted Subsidiary from further liability;; and
(2b) 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, within 30 days of receipt converted by the Company or such Restricted Subsidiary into cash, cash (to the extent of the cash received in that conversion); and
(3) except as provided below, the Asset Sale Proceeds received by the Company or such Restricted Subsidiary are applied:
(a) to the extent the Company elects, to an Investment in property or other assets (including Capital Stock or other securities purchased in connection with the acquisition of Capital Stock or property of another Person) in compliance with Section 4.20; provided that such Investment occurs or the Company or any stock or assets such Restricted Subsidiary enters into contractual commitments to make such Investment, subject only to customary conditions (other than the obtaining of financing), within 365 days following receipt of such Asset Sale Proceeds; and
(b) to the extent of the kind referred balance of Asset Sale Proceeds after application as described above, to in clauses (2) or (4) of the next paragraph of this covenant. Within 365 days after the receipt of any Net Proceeds from an Asset Sale, extent the Company (or the applicable any such Restricted Subsidiary, as the case may be) may apply , elects, or is required, to prepay, repay or purchase Indebtedness under any then existing Senior Indebtedness of the Company or any such Net Proceeds:
(1) Restricted Subsidiary, to repay Indebtedness and other Obligations under such prepayment, repayment or purchase within 365 days following the Working Capital Facility and receipt of the Asset Sale Proceeds from any Asset Sale; provided that any such repayment must result in a permanent reduction of the commitments thereunder in an amount equal to correspondingly permanently reduce commitments with respect theretothe principal amount so repaid;
(2b) to acquire all or substantially all of If after the assets of, or any Capital Stock of, another Permitted Business, if, 370th day after giving effect to any such acquisition of Capital Stockan Asset Sale (the "Excess Proceeds Offer Trigger Date"), the Permitted Business is or becomes (x) a Restricted Subsidiary of the Company and (y) a Guarantor;
(3) to make capital expenditures in a Permitted Business (other than Equity Interests, Indebtedness or current assets); or
(4) to acquire other assets (other than Equity Interests or Indebtedness) that are not classified as current assets under GAAP and that are used or useful in a Permitted Business. Pending the final application of any Net Proceeds, the Company may temporarily reduce borrowings under the Working Capital Facility or otherwise invest the Net Available Asset Sale Proceeds in any manner that is not prohibited by this Indenture. Any Net Proceeds from Asset Sales that are not applied or invested as provided in the second paragraph of this covenant will constitute “Excess Proceeds.” When the aggregate amount of Excess Proceeds exceeds exceed $5.0 10.0 million, the Company will, within five (5) days thereof, make must apply an amount equal to the Available Asset Sale Offer Proceeds to all Holders and all holders of other senior secured Indebtedness that is pari passu an offer to repurchase the Notes, at a purchase price in right of payment and as to security interests with the Notes with respect to the assets that are the subject of such Asset Sale 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 amount of Notes and such other pari passu Indebtedness that may be purchased out of the Excess Proceeds in accordance with the procedures set forth in Section 3.09 hereof. The offer price for the Notes in any Asset Sale Offer will be cash equal to 100% of the aggregate principal amount of the Notes, thereof plus accrued and unpaid interest interest, if any, to the purchase date (an "Excess Proceeds Offer").
(c) Within 30 days of purchasethe Excess Proceeds Offer Trigger Date, the Company shall mail to the Trustee and each Holder a notice stating, among other things, that the Company is making an Excess Proceeds Offer and offering to repurchase Notes on the date specified in such notice (which will be payable in cash. If any a Business Day no earlier than 30 days nor later than 45 days from the date such notice is mailed) (the "Excess Proceeds remain after consummation of Payment Date") pursuant to the procedures required by this Indenture and described in such notice.
(d) If an Asset Sale OfferExcess Proceeds Offer is not fully subscribed, the Company may use those retain the portion of the Available Asset Sale Proceeds not required to repurchase Notes.
(e) In the event of the transfer of substantially all of the property and assets of the Company and the Restricted Subsidiaries as an entirety to a Person in a transaction permitted under Section 5.01 of this Indenture, the successor Person will be deemed to have sold the properties and assets of the Company and the Restricted Subsidiaries not so transferred for purposes of this Section 4.13, and must comply with the provisions of this Section 4.13 with respect to such deemed sale as if it were an Asset Sale.
(f) The Company shall comply with the requirements of Rule 14e-1 under the Exchange Act and other securities laws and regulations thereunder to the extent such laws and regulations are applicable in connection with the repurchase of Notes pursuant to an Excess Proceeds for Offer. To the extent that the provisions of any purpose not otherwise prohibited by securities laws or regulations conflict with this Indenture. If the aggregate principal amount of Notes and the amount of other pari passu Indebtedness tendered into such Asset Sale Offer exceeds the amount of Excess ProceedsSection 4.13, the Trustee Company shall select comply with the Notes applicable securities laws and such other pari passu Indebtedness regulations and will not be deemed to be purchased on a pro rata basis. Upon completion of each Asset Sale Offer, the amount of Excess Proceeds will be reset at zerohave breached its obligations under this Section 4.13 by virtue thereof.
Appears in 2 contracts
Samples: Indenture (Affinity Group Holding, Inc.), Indenture (Affinity Group Inc)
Limitation on Asset Sales. The Company will not, and will not permit any of its Restricted Subsidiaries to, consummate an Asset Sale unless:
(1) the Company (or the Restricted Subsidiary, as the case may be, ) receives consideration at the time of the Asset Sale at least equal to the Fair Market Value fair market value of the assets or Equity Interests issued or sold or otherwise disposed of;
(2) the fair market value is determined by the Company’s Board of Directors and evidenced by a Board Resolution; and
(23) at least 8575% of the consideration received in the Asset Sale by the Company or such Restricted Subsidiary is in the form of cashcash or Cash Equivalents. For purposes of this clause (3) of Section 5.104.10 only, each of the following will be deemed to be cashcash or Cash Equivalents:
(1a) any liabilities, as shown on the Company’s or such Restricted Subsidiary’s most recent consolidated balance sheet, of the Company or any Subsidiary (other than contingent liabilities and Indebtedness liabilities that are (x) by their terms subordinated to the Notes or any Note Guarantee, (y) unsecured, or (z) secured by a Lien on the assets or rights that are the subject of the Asset Sale, which Lien is junior in priority to the Liens securing the Notes or any Note Subsidiary Guarantee) that are assumed by the transferee of any such assets pursuant to a customary novation agreement that releases the Company or such Subsidiary from further liability;
(2b) 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 cashcash within 270 days of the receipt thereof, to the extent of the cash received in that conversion; and
(3c) with respect to any stock Asset Sale of oil and natural gas properties where the Company or assets such Restricted Subsidiary retains an interest in such property, the aggregate costs and expenses of the kind referred Company or such Restricted Subsidiary related to in clauses the exploration, development, completion or production of such properties and activities related thereto which the transferee (2or an Affiliate thereof) or (4) of the next paragraph of this covenantagrees to pay. Within 365 360 days after the receipt of any Net Proceeds from an Asset Sale, the Company (or the applicable any such Restricted Subsidiary, as the case may be) Subsidiary may apply such those Net ProceedsProceeds at its option to any combination of the following:
(1I) to repay prepay, repay, redeem or repurchase any Indebtedness and of the Company or a Guarantor (other Obligations under than intercompany Indebtedness, Capital Stock or Indebtedness that is subordinated to the Working Capital Facility and to correspondingly permanently reduce commitments with respect theretoNotes or the Subsidiary Guarantees) or any Indebtedness of a Restricted Subsidiary that is not a Guarantor (other than intercompany Indebtedness);
(2II) to acquire all or substantially all of the properties or assets of, of one or any Capital Stock of, another Permitted more other Persons primarily engaged in the Oil and Gas Business, ifand, after giving effect to any such acquisition for this purpose, a division or line of Capital Stock, the Permitted Business is or becomes (x) business of a Restricted Subsidiary of the Company and (y) Person shall be treated as a Guarantorseparate Person;
(3III) to acquire a majority of the Voting Stock of one or more other Persons primarily engaged in the Oil and Gas Business;
(IV) to make one or more capital expenditures in a Permitted Business (other than Equity Interests, Indebtedness or current assets)expenditures; or
(4V) to acquire other property or assets (other than Equity Interests or Indebtedness) that are not classified as current assets under GAAP and that are used or useful in a Permitted the Oil and Gas Business. Pending the final application of any Net Proceeds, the Company or any such Restricted Subsidiary may temporarily reduce revolving credit borrowings under the Working Capital Facility or otherwise invest the Net Proceeds in any manner that is not prohibited by this Indenture. Any Net Proceeds from Asset Sales that are not applied or invested as provided in the second preceding paragraph of this covenant will constitute “Excess Proceeds.” When 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 $5.0 50.0 million, the Company will, within five (5) days thereof, will make an Asset Sale Offer to all Holders of Notes, and to all holders of other senior secured Pari Passu Indebtedness that is pari passu in right of payment and as to security interests with the Notes with respect to the assets that are the subject of such Asset Sale 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 assets, to purchase the maximum principal amount of Notes and such other pari passu Pari Passu Indebtedness that may be purchased out of the Excess Proceeds in accordance with Proceeds, pursuant to the procedures set forth terms in Section 3.09 hereof3.04 hereof and this Section 4.10. The offer price for the Notes in any Asset Sale Offer will be equal to 100% of the aggregate principal amount of the Notes, plus accrued and unpaid interest interest, if any, to the Settlement Date, subject to the right of Holders of record on the relevant record date of purchaseto receive interest due on an Interest Payment Date that is on or prior to the Settlement Date, and will be payable in cash. If any Excess Proceeds remain after consummation of an Asset Sale Offer, the Company may use those Excess Proceeds for any purpose not otherwise prohibited by this Indenture. If the aggregate principal amount of Notes and the amount of other pari passu Pari Passu Indebtedness tendered into in such Asset Sale Offer exceeds the amount of Excess Proceeds, the Trustee shall will select the Notes and such other pari passu Pari Passu Indebtedness to be purchased on a pro rata basisbasis on the basis of the aggregate accreted value (if issued with original issue discount) or principal amount of tendered Notes and Pari Passu Indebtedness (provided that the selection of such Pari Passu Indebtedness shall be made pursuant to the terms of such Pari Passu Indebtedness) (with such adjustments as may be deemed appropriate by the Company so that only Notes in denominations of $2,000 or any integral multiple of $1,000 in excess thereof, will be purchased). Upon completion of each Asset Sale Offer, the amount of Excess Proceeds will be reset at zero. The Company will comply with the requirements of Rule 14e-1 under the Exchange Act and any other Applicable Law to the extent applicable in connection with each repurchase of Notes pursuant to an Asset Sale Offer. To the extent that the provisions of any securities laws or regulations conflict with the provisions of Section 3.04 or this Section 4.10, the Company will comply with the applicable securities laws and regulations and will not be deemed to have breached its obligations under such provisions by virtue of such compliance.
Appears in 2 contracts
Samples: Third Supplemental Indenture (Whiting Petroleum Corp), Fourth Supplemental Indenture (Whiting Petroleum Corp)
Limitation on Asset Sales. The Company will not, and will not permit any of its Restricted Subsidiaries to, consummate an Asset Sale unless:
(1) the Company (or the Restricted Subsidiary, as the case may be, ) receives consideration at (including by way of relief from, or any Person assuming responsibilities for, any liabilities, contingent or otherwise), determined on the time date of the contractually agreeing to such Asset Sale Sale, at least equal to the Fair Market Value fair market value of the assets or Equity Interests issued or sold or otherwise disposed of; and
(2) at least 8575% of the aggregate consideration received by the Company and its Restricted Subsidiaries in the Asset Sale by (determined on the Company or date of contractually agreeing to such Restricted Subsidiary Asset Sale) and all other Asset Sales since the date of this indenture, on a cumulative basis, is in the form of cashcash or Cash Equivalents. For purposes of this Section 5.10provision, each of the following will be deemed to be cash:
(1a) any liabilities, as shown on the Company’s or such Restricted Subsidiary’s most recent consolidated balance sheet, of the Company or any Subsidiary (other than contingent liabilities and Indebtedness liabilities that are (x) by their terms subordinated in right of payment to the Notes or any Note Guarantee, (y) unsecured, or (z) secured by a Lien on the assets or rights that are the subject of the Asset Sale, which Lien is junior in priority to the Liens securing the Notes or any Note Subsidiary Guarantee) that are assumed by the transferee of any such assets pursuant to a customary novation agreement that releases the Company or such Subsidiary from further liability;
(2b) any securities, notes or other obligations received by the Company or any such Restricted Subsidiary from such transferee that are contemporaneouslyare, subject to ordinary settlement periodswithin 180 days after the Asset Sale, converted by the Company or such Restricted Subsidiary into cash, to the extent of the cash received in that conversion; and
(3c) accounts receivable of a business retained by the company or any stock or assets of its Restricted Subsidiaries, as the case may be, following the sale of such business, provided that such accounts receivable (i) are not past due more than 90 days and (ii) do not have a payment date greater than 120 days from the date of the kind referred to in clauses (2) or (4) of the next paragraph of this covenantinvoices creating such accounts receivable. Within 365 days after the receipt of any Net Proceeds from an Asset Sale, the Company (or the applicable Restricted Subsidiary, as the case may be) may apply such those Net ProceedsProceeds at its option to any combination of the following:
(1I) to repay Indebtedness and other Obligations under prepay, repay, redeem, defease or repurchase Senior Debt, including the Working Capital Facility and to correspondingly permanently reduce commitments with respect theretonotes;
(2II) to invest in or acquire all or substantially all of the assets of, or any Capital Stock of, another Permitted Business, if, after giving effect to any such acquisition of Capital Stock, the Permitted Business is or becomes (x) a Restricted Subsidiary of the Company and (y) a Guarantor;Additional Assets; or
(3III) to make capital expenditures in respect of the Company’s or its Restricted Subsidiaries’ Oil and Gas Business. The requirement of clause (II) or (III) of the preceding paragraph shall be deemed to be satisfied if a Permitted Business (bona fide binding contract committing to make the investment, acquisition or expenditure referred to therein is entered into by the Company or any of its Restricted Subsidiaries with a Person other than Equity Interests, Indebtedness or current assets); or
(4) to acquire other assets (other than Equity Interests or Indebtedness) that an Affiliate of the Company within the time period specified in the preceding paragraph and such Net Proceeds are not classified as current assets under GAAP and that are used or useful subsequently applied in a Permitted Businessaccordance with such contract within six months following the date such agreement is entered into. Pending the final application of any Net Proceeds, the Company or any Restricted Subsidiary of the Company may temporarily reduce borrowings under the Working Capital Facility Indebtedness or otherwise invest the Net Proceeds in any manner that is not prohibited by this Indenture. Any Net Proceeds from Asset Sales that are not applied or invested as provided in the second preceding paragraph of this covenant will constitute “Excess Proceeds.” When On the 366th day after an Asset Sale (or, at the Company’s option, any earlier date), if the aggregate amount of Excess Proceeds then exceeds $5.0 40.0 million, the Company will, within five (5) days thereof, will make an Asset Sale Offer to all Holders of Notes, and to all holders of other senior secured Pari Passu Indebtedness that is pari passu in right of payment and as then outstanding to security interests with the Notes with respect to the assets that are the subject of such Asset Sale 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 purchase, on a pro rata basis, the maximum principal amount of Notes and such other pari passu Pari Passu Indebtedness that may be purchased out of the Excess Proceeds in accordance with the procedures set forth in Section 3.09 hereofProceeds. The offer price for the Notes in any Asset Sale Offer will be equal to 100% of the aggregate principal amount of the Notes, plus accrued and unpaid interest and Additional Interest, if any, thereon to the Settlement Date, subject to the right of Holders of record on the relevant record date of purchaseto receive interest due on an interest payment date that is on or prior to the Settlement Date, and will be payable in cash. If any Excess Proceeds remain after consummation of an Asset Sale Offer, the Company may use those Excess Proceeds for any purpose not otherwise prohibited by this Indenture. If the aggregate principal amount of Notes and the amount of other pari passu Indebtedness tendered into such Asset Sale Offer exceeds the amount of Excess ProceedsProceeds allocated for purchase of the Notes, the Trustee shall will select the Notes and such other pari passu Indebtedness to be purchased on a pro rata basisbasis (with such adjustments as may be deemed appropriate by the Trustee so that only Notes in denominations of $2,000, or integral multiples of $1,000 in excess of $2,000, shall be purchased). Upon surrender of a Note that is repurchased in part, the Issuers shall issue in the name of the applicable Holder and the Trustee shall authenticate for such Holder at the expense of the Issuers a new Note equal in principal amount to the non-repurchased portion of the Note surrendered. Upon completion of each Asset Sale Offer, the amount of Excess Proceeds will be reset at zero. The Company will comply with the requirements of Rule 14e-1 under the Exchange Act and any other securities laws and regulations thereunder to the extent those laws and regulations are applicable in connection with each repurchase of Notes pursuant to an Asset Sale Offer. To the extent that the provisions of any securities laws or regulations conflict with the provisions of this Section 4.10, the Company will comply with the applicable securities laws and regulations and will not be deemed to have breached its obligations under such provisions by virtue of such compliance.
Appears in 2 contracts
Samples: Indenture (Linn Energy, LLC), Indenture (Linn Energy, LLC)
Limitation on Asset Sales. The Company will shall not, and will shall not permit any of its Restricted Subsidiaries to, consummate an Asset Sale unless:
(1) the Company or the such Restricted Subsidiary, as the case may be, Subsidiary receives consideration at the time of the such Asset Sale at least equal to the Fair Market Value fair market value of the assets or Equity Interests issued or sold or otherwise disposed of;
(2) such fair market value is determined by the Board of Directors of the Company; and
(23) at least 8575.0% of the consideration therefor received in the Asset Sale by the Company or such Restricted Subsidiary is in the form of cash, Cash Equivalents or readily marketable securities. For purposes of this Section 5.104.11, each of the following will shall be deemed to be cash:
(1a) any liabilities, liabilities (as shown on the Company’s or such Restricted Subsidiary’s most recent consolidated balance sheet, ) of the Company or any Restricted Subsidiary thereof (other than contingent liabilities and Indebtedness liabilities that are (x) by their terms subordinated to the Notes or any Note Guarantee, (y) unsecured, or (z) secured by a Lien on the assets or rights that are the subject of the Asset Sale, which Lien is junior in priority to the Liens securing the Notes or any Note GuaranteeNotes) 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;
(2b) 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 recipient thereof into cash, Cash Equivalents or readily marketable securities within 180 days after receipt thereof (to the extent of the cash cash, Cash Equivalents or readily marketable securities received in that conversion);
(c) Productive Assets; and
(3d) any stock Designated Noncash Consideration received by the Issuers or assets any Restricted Subsidiary in such Asset Sale having an aggregate fair market value, taken together with all other Designated Noncash Consideration received pursuant to this clause (d) that is at that time outstanding, not to exceed the greater of $500.0 million and 3.0% of Total Assets, with the kind referred fair market value of each item of Designated Noncash Consideration being measured at the time received and without giving effect to subsequent changes in clauses (2) or (4) of the next paragraph of this covenantvalue. Within 365 days after the receipt of any Net Proceeds from an Asset Sale, the Company (or the applicable a Restricted Subsidiary, as the case may be) Subsidiary thereof may apply such Net ProceedsProceeds at its option:
(1) to repay Indebtedness and other Obligations or otherwise retire debt under the Working Capital Facility and to correspondingly permanently reduce commitments with respect thereto;Credit Facilities or any other Indebtedness of the Restricted Subsidiaries of the Company (other than Indebtedness represented by a guarantee of a Restricted Subsidiary of the Company); or
(2) to acquire all or substantially all of the assets of, or any Capital Stock of, another Permitted Business, if, after giving effect to invest in Productive Assets; provided that any such acquisition amount of Capital Stock, Net Proceeds which the Permitted Business is Company or becomes (x) a Restricted Subsidiary thereof has committed to invest in Productive Assets within 365 days of the Company and (y) a Guarantor;
(3) to make capital expenditures applicable Asset Sale may be invested in a Permitted Business (other than Equity Interests, Indebtedness or current assets); or
(4) to acquire other assets (other than Equity Interests or Indebtedness) that are not classified as current assets under GAAP and that are used or useful in a Permitted BusinessProductive Assets within two years of such Asset Sale. Pending the final application The amount of any Net Proceeds, the Company may temporarily reduce borrowings under the Working Capital Facility or otherwise invest the Net Proceeds in any manner that is not prohibited by this Indenture. Any Net Proceeds received from Asset Sales that are not applied or invested as provided in the second preceding paragraph of this covenant will shall constitute “Excess Proceeds.” When the aggregate amount of Excess Proceeds exceeds $5.0 25.0 million, the Company will, within five (5) days thereof, shall make an Asset Sale Offer to all Holders and all holders of other senior secured Indebtedness that is pari passu in right of payment and as to security interests equal priority with the Notes with respect to the assets that are the subject of such Asset Sale containing provisions similar to those set forth in this Indenture with respect to requiring 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 of equal priority that may be purchased out of the Excess Proceeds in accordance with Proceeds, which amount includes the procedures set forth in Section 3.09 hereofentire amount of the Net Proceeds. The offer price for the Notes in any Asset Sale Offer will shall be payable in cash and equal to 100100.0% of the aggregate principal amount of the Notes, subject Notes plus accrued and unpaid interest interest, if any, to the date of purchase, and will be payable in cash. If any Excess Proceeds remain after consummation of an Asset Sale Offer, the Company may use those Excess Proceeds for any purpose not otherwise prohibited by this Indenture. If the aggregate principal amount of Notes and the amount such other Indebtedness of other pari passu Indebtedness equal priority tendered into such Asset Sale Offer exceeds the amount of Excess Proceeds, the Trustee shall select the Notes and such other pari passu Indebtedness of equal priority to be purchased on a pro rata basis. If any Excess Proceeds remain after consummation of an Asset Sale Offer, then the Company or any Restricted Subsidiary thereof may use such remaining Excess Proceeds for any purpose not otherwise prohibited by this Indenture. Upon completion of each any Asset Sale Offer, the amount of Excess Proceeds will shall be reset at zero. In the event that the Company shall be required to commence an offer to Holders to purchase Notes pursuant to this Section 4.11, it shall follow the procedures specified in Sections 3.01 through 3.09.
Appears in 2 contracts
Samples: Indenture (Cco Holdings Capital Corp), Indenture (CCH Ii Capital Corp)
Limitation on Asset Sales. The Company will shall not, and will shall not permit any of its Restricted Subsidiaries to, consummate an Asset Sale unless:
unless (1i) the Company or the such Restricted Subsidiary, as the case may be, receives consideration (including by way of relief from, or by any Person other than the Company or any of its Restricted Subsidiaries assuming responsibility for, any liabilities, contingent or otherwise) at the time of the such Asset Sale at least equal to the Fair Market Value (as evidenced by a Board Resolution, which determination shall be conclusive (including as to the value of all non-cash consideration)) of the property or assets or Equity Interests issued or sold or otherwise disposed of; and
, (2ii) at least 8575% of the consideration received in the Asset Sale by the Company or such Restricted Subsidiary is for such property or assets consists of cash or Eligible Cash Equivalents and (iii) the Company or such Restricted Subsidiary of the Company, as the case may be, uses the Net Cash Proceeds in the form of cash. For manner set forth in the next paragraph; provided, however, that for purposes of this Section 5.101016, each "cash" shall include (i) the amount of the following will be deemed to be cash:
(1) any liabilities, as shown on the Company’s most recent consolidated balance sheet, of the Company or any Subsidiary liabilities (other than contingent liabilities and Indebtedness that are (x) by their terms subordinated to the Notes Notes) of the Company or any Note Guarantee, such Restricted Subsidiary (y) unsecured, or (z) secured by a Lien as shown on the assets Company's or rights that are such Restricted Subsidiary's most recent balance sheet or in the subject of the Asset Sale, which Lien is junior in priority to the Liens securing the Notes or any Note Guaranteenotes thereto) that are assumed by the transferee of any such assets pursuant to a customary novation agreement that releases or other property in such Asset Sale or are no longer the liability of the Company or any Restricted Subsidiary (and excluding any liabilities that are incurred in connection with or in anticipation of such Subsidiary from Asset Sale), but only to the extent that such assumption is effected on a basis under which there is no further liability;
recourse to the Company or any of its Restricted Subsidiaries with respect to such liabilities, and (2ii) any securities, notes or other obligations received by the Company or any such Restricted Subsidiary from in connection with such transferee Asset Sale that are contemporaneously, subject to ordinary settlement periods, converted by the Company or such Restricted Subsidiary into cash, to the extent cash within 60 days of the cash received in that conversion; and
(3) any stock or assets of the kind referred to in clauses (2) or (4) of the next paragraph of this covenantreceipt. Within 365 360 days after the receipt of any Net Proceeds from an Asset Sale, the Company (or such Restricted Subsidiary of the applicable Restricted SubsidiaryCompany, as the case may be, may at its option (a) may reinvest an amount equal to the Net Cash Proceeds (or any portion thereof) from such disposition in Replacement Assets, provided that if such Investment is in a project authorized by the Board of Directors of the Company that shall take longer than such 360 day period to complete, the Company shall be entitled to utilize 90 additional days to apply such Net Cash Proceeds:
, and/or (1b) apply an amount equal to such Net Cash Proceeds (or remaining Net Cash Proceeds) to repay Indebtedness and other Obligations under the Working Capital Facility and to correspondingly permanently reduce commitments with respect thereto;
(2) to acquire all or substantially all permanent reduction of any Debt of the assets of, Company ranking pari passu with the Notes (including the Notes and the Senior Discount Notes) or Debt of any Capital Stock of, another Permitted Business, if, after giving effect to any such acquisition of Capital Stock, the Permitted Business is or becomes (x) a Restricted Subsidiary of the Company and (y) a Guarantor;
(3) to make capital expenditures in a Permitted Business (other than Equity Interests, Indebtedness or current assets); or
(4) to acquire other assets (other than Equity Interests or Indebtedness) Company. Any Net Cash Proceeds from any Asset Sale that are not classified as current assets under GAAP and that are used or useful to reinvest in a Permitted Business. Pending the final application Replacement Assets and/or repay any such pari passu Debt of any Net Proceeds, the Company may temporarily reduce borrowings under the Working Capital Facility or otherwise invest the Net Proceeds in any manner that is not prohibited by this Indenture. Any Net Proceeds from Asset Sales that are not applied or invested as provided in the second paragraph Debt of this covenant will its Restricted Subsidiaries constitute “Excess Proceeds.” . When the aggregate amount of Excess Proceeds exceeds $5.0 million10.0 million (an "Asset Sale Trigger Date"), the Company willshall, as soon as practicable, but in any event within five (5) days thereof20 Business Days, make an Asset Sale Offer to all Holders and all holders of other senior secured Indebtedness that is pari passu in right of payment and as to security interests with the Notes with respect offer to the assets that are the subject of such Asset Sale 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 amount of Notes and such other pari passu Indebtedness that may be purchased out extent of the Excess Proceeds to purchase (an "Asset Sale Offer"), on a pro rata basis, the Notes and the other Debt described in the next sentence, at a price in cash for the Notes equal to 100% of the principal amount thereof plus accrued and unpaid interest, if any, to the Asset Sale Offer Purchase Date (as defined below), in accordance with the procedures set forth in Section 3.09 hereofbelow. The offer price for the Notes in any Any Asset Sale Offer will be equal shall include a pro rata offer under similar circumstances to 100% purchase all other unsecured Debt of the aggregate principal amount of Company ranking pari passu with the Notes, plus accrued and unpaid interest which Debt contains similar provisions requiring the Company to purchase such Debt (including, but not limited to, the date Senior Discount Notes). To the extent that any amount of Excess Proceeds remains after completion of such offer to purchase, and will be payable in cash. If any Excess Proceeds remain after consummation the Company or such Restricted Subsidiary of an Asset Sale Offer, the Company may use those Excess Proceeds such remaining amount for any purpose not otherwise prohibited by this Indenture. If the aggregate principal amount of Notes general corporate purposes and the amount of other pari passu Indebtedness tendered into such Asset Sale Offer exceeds the amount of Excess Proceeds, the Trustee shall select the Notes and such other pari passu Indebtedness to be purchased on a pro rata basis. Upon completion of each Asset Sale Offer, the amount of Excess Proceeds will shall be reset to zero. Notwithstanding the three immediately preceding paragraphs, the Company and its Restricted Subsidiaries shall be permitted to consummate an Asset Sale without complying with such paragraphs to the extent that (i) at zeroleast 75% of the consideration for such Asset Sale consists of Telecommunications Assets and (ii) such Asset Sale is for Fair Market Value; provided that any such acquisition of Telecommunications Assets that is an Investment is made in compliance with Section 1012 or constitutes a Permitted Investment, other than pursuant to clause (h) of the definition thereof, and any Net Cash Proceeds received by the Company or any of its Restricted Subsidiaries in connection with any such Asset Sale shall be subject to the provisions of the three immediately preceding paragraphs.
Appears in 2 contracts
Limitation on Asset Sales. (a) The Company will not, and will not permit any of its Restricted Subsidiaries Subsidiary to, consummate an make any Asset Sale unlessunless the following conditions are met:
(1i) The Asset Sale is for at least Fair Market Value, as determined in good faith by the Company or the Restricted Subsidiary, as the case may be, receives consideration at the time of the Asset Sale at least equal to the Fair Market Value of the assets or Equity Interests issued or sold or otherwise disposed of; andin a manner consistent with its customary practices.
(2ii) at At least 8575% of the consideration received in (the Asset Sale valuation thereof to be reasonably determined by the Company Company) consists of cash or such Restricted Subsidiary is in Cash Equivalents received at closing, which cash or Cash Equivalents shall be pledged as Collateral to the form extent the assets disposed of cashwere (or were required to be) Collateral. For purposes of this Section 5.10clause (ii), each (A) the assumption by the purchaser of Debt or other obligations (other than Subordinated Debt or other obligations subordinated by their terms in right of payment to the following will be deemed to be cash:
(1Notes) any liabilities, as shown on the Company’s most recent consolidated balance sheet, of the Company or any a Restricted Subsidiary (other than contingent liabilities and Indebtedness that are (x) by their terms subordinated to the Notes or any Note Guarantee, (y) unsecured, or (z) secured by a Lien on the assets or rights that are the subject of the Asset Sale, which Lien is junior in priority to the Liens securing the Notes or any Note Guarantee) that are assumed by the transferee of any such assets pursuant to a customary novation agreement that releases agreement, and instruments or securities received from the Company or such Subsidiary from further liability;
(2) any securities, notes or other obligations received by the Company or any such Restricted Subsidiary from such transferee purchaser that are contemporaneouslypromptly, subject to ordinary settlement periodsbut in any event within 180 days of the closing, converted by the Company or such Restricted Subsidiary into to cash, to the extent of the cash actually so received, shall be considered cash received at closing and (B) any Designated Non-Cash Consideration received by the Company or a Restricted Subsidiary having an aggregate Fair Market Value (measured at the time received and without giving effect to any subsequent change in value), taken together with all other Designated Non-Cash Consideration received pursuant to this clause (B) that conversion; andhas not been transferred, sold or otherwise exchanged for, or otherwise converted into, cash, not to exceed 5.0% of the Total Assets of the Company and its Restricted Subsidiaries at the time of the receipt of such Designated Non-Cash Consideration, shall be considered cash received at closing.
(3iii) any stock or assets of the kind referred to in clauses (2) or (4) of the next paragraph of this covenant. Within 365 360 days after the receipt of any Net Cash Proceeds from an Asset Sale, the Company (or Net Cash Proceeds may be used at the applicable Restricted Subsidiary, as the case may be) may apply such Net ProceedsCompany’s option:
(A) to permanently repay (1) First-Priority Lien Obligations of the Company or a Guarantor or, if the assets disposed of were not (and were not required to repay Indebtedness be) Collateral, any Debt of a Restricted Subsidiary that is not a Guarantor (and other Obligations under in the Working Capital Facility and to correspondingly case of a revolving credit, permanently reduce commitments with respect thereto;the commitment thereunder by such amount), in each case owing to a Person other than the Company or any Restricted Subsidiary or (2) Debt of the type described in Section 4.06(b)(ix) to the extent such Debt is secured by the property or assets that are the subject of such Asset Sale,
(2B) to acquire all or substantially all of the assets of, or any Capital Stock of, another of a Permitted Business, if, after giving effect to any such acquisition or a majority of Capital Stock, the Permitted Business is or Voting Stock of another Person that thereupon becomes (x) a Restricted Subsidiary of the Company and (y) engaged in a Guarantor;
(3) Permitted Business, or to make capital expenditures in a Permitted Business or otherwise acquire Additional Assets; provided that to the extent the assets disposed of were (other than Equity Interestsor were required to be) Collateral, Indebtedness or current assets); the assets acquired shall be pledged as Collateral, or
(4C) to acquire other assets any combination of clauses (other than Equity Interests or IndebtednessA) that are not classified through (B) above, provided that, in the cases of this clause (iii), a binding commitment shall be treated as current assets under GAAP and that are used or useful in a Permitted Business. Pending the final permitted application of Net Cash Proceeds from the date of such commitment so long as the Company or such other Restricted Subsidiary enters into such commitment with the good faith expectation that such Net Cash Proceeds will be applied to satisfy such commitment within 180 days of such commitment (an “Acceptable Commitment”) and, in the event that any Acceptable Commitment is later cancelled or terminated for any reason before the Net ProceedsCash Proceeds are applied in connection therewith, the Company may temporarily reduce borrowings under the Working Capital Facility or otherwise invest the such Restricted Subsidiary enters into another Acceptable Commitment (a “Second Commitment”) or applies such Net Cash Proceeds in accordance with clause (A), (B) or (C) above within 180 days of such cancellation or termination; provided, further, that if any manner that Second Commitment is not prohibited by this Indenture. Any later cancelled or terminated for any reason before such Net Cash Proceeds from are applied, then such Net Cash Proceeds shall constitute Excess Proceeds.
(iv) The Net Cash Proceeds of an Asset Sales that are Sale not applied or invested as provided in the second paragraph pursuant to clause (iii) of this covenant will Section 4.09(a) within 360 days of the Asset Sale constitute “Excess Proceeds.” When the aggregate amount of ”. Excess Proceeds exceeds of less than $5.0 million50,000,000 will be carried forward and accumulated. When accumulated Excess Proceeds equal or exceed such amount, the Company willmust, within five (5) days thereof60 days, make an Asset Sale Offer to all Holders Purchase Notes having a principal amount equal to
(A) accumulated Excess Proceeds, multiplied by
(B) a fraction (1) the numerator of which is equal to the outstanding principal amount of the Notes and (2) the denominator of which is equal to the outstanding principal amount of the Notes and all holders Debt secured by Liens on the Collateral of other senior secured Indebtedness that is pari passu the same priority as the Liens securing the Notes similarly required to be repaid, redeemed or tendered for in right of payment and as to security interests connection with the Notes with respect Asset Sale, rounded down to the assets that are nearest $1,000. The purchase price for the subject Notes will be 100% of such Asset Sale containing provisions similar the principal amount plus accrued interest to, but excluding, the date of purchase. If the Offer to those set forth in this Indenture with respect to offers to purchase or redeem with Purchase is for less than all of the proceeds of sales of assets to purchase the maximum amount of Outstanding Notes and such other pari passu Indebtedness Notes in an aggregate principal amount in excess of the purchase amount are tendered and not withdrawn pursuant to the offer, the Company will purchase Notes having an aggregate principal amount equal to the purchase amount on a pro rata basis, with adjustments so that may only Notes in multiples of $1,000 principal amount will be purchased out purchased. Upon completion of the Offer to Purchase, the amount of the Excess Proceeds in accordance with the procedures set forth in Section 3.09 hereof. The offer price for the Notes in any Asset Sale Offer will be equal to 100% of the aggregate principal amount of the Notes, plus accrued and unpaid interest to the date of purchasereset at zero, and will be payable in cash. If any previously deemed Excess Proceeds remain remaining after consummation of an Asset Sale Offer, the Company Offer to Purchase may use those Excess Proceeds be used for any purpose not otherwise prohibited by this Indenture. If .
(b) The Company will comply with Section 14(e) under the aggregate principal amount of Notes Exchange Act (including Rule 14e-1 thereunder) and all securities laws, rules, regulations and other applicable laws (to the extent such Section 14(e) or applicable laws, rules and regulations are applicable to such Offer to Purchase) in making any Offer to Purchase, and the amount above procedures will be deemed modified as necessary to permit such compliance.
(c) Pending the application of other pari passu Indebtedness tendered into any such Asset Sale Offer exceeds the amount of Excess Proceeds, the Trustee shall select the Notes and Company or such other pari passu Indebtedness to be purchased on a pro rata basis. Upon completion of each Asset Sale Offer, the amount of Restricted Subsidiary may use such Excess Proceeds will be reset at zeroto temporarily reduce revolving indebtedness under a Credit Facility, if any, or otherwise invest such Excess Proceeds in cash or Cash Equivalents.
Appears in 2 contracts
Samples: Indenture (Eastman Kodak Co), Indenture (Eastman Kodak Co)
Limitation on Asset Sales. (a) The Company will not, and will not permit any of its Restricted Subsidiaries to, consummate an Asset Sale unless:
(1i) the Company (or the a Restricted Subsidiary, as the case may be, ) receives consideration at the time of the Asset Sale at least equal to the Fair Market Value fair market value, determined as of the date of the agreement with respect thereto, of the assets or Equity Interests issued or sold or otherwise disposed of; and
(2ii) at least 8575% of the aggregate consideration received by the Company and its Restricted Subsidiaries in the Asset Sale by and all other Asset Sales since the Company or such Restricted Subsidiary Closing Date, on a cumulative basis, is in the form of cashcash or Cash Equivalents. For purposes of this Section 5.10provision, each of the following will be deemed to be cash:
(1A) any liabilities, as shown on the Company’s or any Restricted Subsidiary’s most recent consolidated balance sheet, of the Company or any such Restricted Subsidiary (other than contingent liabilities and Indebtedness liabilities that are (x) by their terms subordinated to the Notes or any Note Guarantee, (y) unsecured, or (z) secured by a Lien on the assets or rights that are the subject of the Asset Sale, which Lien is junior in priority to the Liens securing the Notes or any Note Subsidiary Guarantee) that are (1) assumed by the transferee of any such assets pursuant to a customary novation an agreement that releases the Company or such Restricted Subsidiary from further liabilityliability (or in lieu of such a release, the agreement of the acquiror or its parent company to indemnify and hold the Company or such Restricted Subsidiary harmless from and against any loss, liability or cost in respect of such assumed Indebtedness or liabilities), or (2) delivered, contributed or transferred to the Company as consideration for or otherwise in connection with any such Asset Sale, which is promptly thereafter terminated or otherwise cancelled;
(2B) any securities, notes or other obligations received by the Company or any such Restricted Subsidiary from such transferee that are contemporaneouslyare, subject to ordinary settlement periodswithin 180 days after the Asset Sale, converted by the Company or such Restricted Subsidiary into cash, to the extent of the cash received in that conversion; and;
(3C) any stock or assets of the kind referred to in clauses clause (2ii), (iii) or (4v) of Section 5.8(b); and
(D) any Designated Noncash Consideration received by the next paragraph Company or such Restricted Subsidiary in such Asset Sale having an aggregate fair market value, taken together with all other Designated Noncash Consideration received since the Closing Date pursuant to this clause (D) that at the time has not been converted to cash, not to exceed the greater of this covenant. (x) $100.0 million and (y) 5.0% of Consolidated Net Tangible 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.
(b) Within 365 days after the receipt of any Net Proceeds from an Asset Sale, the Company (or the applicable any Restricted Subsidiary, as the case may be) Subsidiary may apply such those Net ProceedsProceeds at its option to any combination of the following:
(1i) to repay Indebtedness and other Obligations under the Working Capital Facility and to correspondingly permanently reduce commitments with respect theretorepay, repurchase or redeem Senior Debt;
(2ii) to acquire all or substantially all of the properties or assets of, or any Capital Stock of, another of a Person primarily engaged in a Permitted Business, if, after giving effect to any such acquisition of Capital Stock, the Permitted Business is or becomes (x) a Restricted Subsidiary of the Company and (y) a Guarantor;
(3iii) to acquire a majority of the Voting Stock of a Person primarily engaged in a Permitted Business;
(iv) to make capital expenditures in a Permitted Business (other than Equity Interests, Indebtedness or current assets)expenditures; or
(4v) to acquire other long-term assets (other than Equity Interests or Indebtedness) that are not classified as current assets under GAAP and that are used or useful in a Permitted Business. .
(c) The acquisition of stock or assets, or making of a capital expenditure, pursuant to clauses (ii), (iii), (iv) or (v) of Section 5.8(b) shall be deemed to be satisfied if an agreement (including a lease, whether a capital lease or an operating lease) committing to make the acquisitions or expenditure referred to therein is entered into by the Company or any Restricted Subsidiary within the time period specified in Section 5.8(b) and such Net Proceeds are subsequently applied in accordance with such agreement within six months following the date such agreement is entered into.
(d) Pending the final application of any Net Proceeds, the Company or any Restricted Subsidiary may temporarily reduce borrowings under the Working Capital Facility or otherwise invest the Net Proceeds in any manner that is not prohibited by this IndentureLoan Agreement. Any Net Proceeds from Asset Sales that are not applied or invested as provided in the second preceding paragraph of this covenant will constitute “Excess Proceeds.” When the aggregate amount of Excess Proceeds exceeds $5.0 million, the Company will, within five (5) days thereof, make an Asset Sale Offer to all Holders and all holders of other senior secured Indebtedness that is pari passu in right of payment and as to security interests with the Notes with respect to the assets that are the subject of such Asset Sale 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 amount of Notes and such other pari passu Indebtedness that may be purchased out of the Excess Proceeds in accordance with the procedures set forth in Section 3.09 hereof. The offer price for the Notes in any Asset Sale Offer will be equal to 100% of the aggregate principal amount of the Notes, plus accrued and unpaid interest to the date of purchase, and will be payable in cash. If any Excess Proceeds remain after consummation of an Asset Sale Offer, the Company may use those Excess Proceeds for any purpose not otherwise prohibited by this Indenture. If the aggregate principal amount of Notes and the amount of other pari passu Indebtedness tendered into such Asset Sale Offer exceeds the amount of Excess Proceeds, the Trustee shall select the Notes and such other pari passu Indebtedness to be purchased on a pro rata basis. Upon completion of each Asset Sale Offer, the amount of Excess Proceeds will be reset at zero.”
Appears in 2 contracts
Samples: Loan and Guaranty Agreement (Enviva Inc.), Loan and Guaranty Agreement (Enviva Inc.)
Limitation on Asset Sales. The Company will not, and will not permit any of its Restricted Subsidiaries to, consummate an Asset Sale unless:
(1) the Company (or the Restricted Subsidiary, as the case may be, ) receives consideration at the time of the Asset Sale at least equal to the Fair Market Value fair market value of the assets or Equity Interests issued or sold or otherwise disposed of;
(2) the fair market value is determined by the Company’s Board of Directors and evidenced by a resolution of the Board of Directors set forth in an Officers’ Certificate delivered to the Trustee; and
(23) at least 8575% of the consideration received in the Asset Sale by the Company or such Restricted Subsidiary is in the form of cashcash or Cash Equivalents. For purposes of this clause (3) of Section 5.104.10 only, each of the following will be deemed to be cashcash or Cash Equivalents:
(1a) any liabilities, as shown on the Company’s or such Restricted Subsidiary’s most recent consolidated balance sheet, of the Company or any Subsidiary (other than contingent liabilities and Indebtedness liabilities that are (x) by their terms subordinated to the Notes or any Note Guarantee, (y) unsecured, or (z) secured by a Lien on the assets or rights that are the subject of the Asset Sale, which Lien is junior in priority to the Liens securing the Notes or any Note Subsidiary Guarantee) that are assumed by the transferee of any such assets pursuant to a customary novation agreement that releases the Company or such Subsidiary from further liability;
(2b) 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 cashcash within 180 days of the receipt thereof, to the extent of the cash received in that conversion; and
(3c) with respect to any stock Asset Sale of oil and natural gas properties where the Company or assets such Restricted Subsidiary retains an interest in such property, the aggregate costs and expenses of the kind referred Company or such Restricted Subsidiary related to in clauses the exploration, development, completion or production of such properties and activities related thereto which the transferee (2or an Affiliate thereof) or (4) of the next paragraph of this covenantagrees to pay. Within 365 360 days after the receipt of any Net Proceeds from an Asset Sale, the Company (or the applicable any such Restricted Subsidiary, as the case may be) Subsidiary may apply such those Net ProceedsProceeds at its option to any combination of the following:
(1I) to repay prepay, repay, redeem or repurchase any Indebtedness and of the Company or a Guarantor (other Obligations under than intercompany Indebtedness, Capital Stock or Indebtedness that is subordinated to the Working Capital Facility and to correspondingly permanently reduce commitments with respect theretoNotes or the Subsidiary Guarantees) or any Indebtedness of a Restricted Subsidiary that is not a Guarantor (other than intercompany Indebtedness);
(2II) to acquire all or substantially all of the properties or assets of, of one or any Capital Stock of, another Permitted more other Persons primarily engaged in the Oil and Gas Business, ifand, after giving effect to any such acquisition for this purpose, a division or line of Capital Stock, the Permitted Business is or becomes (x) business of a Restricted Subsidiary of the Company and (y) Person shall be treated as a Guarantorseparate Person;
(3III) to acquire a majority of the Voting Stock of one or more other Persons primarily engaged in the Oil and Gas Business;
(IV) to make one or more capital expenditures in a Permitted Business (other than Equity Interests, Indebtedness or current assets)expenditures; or
(4V) to acquire other long-term assets (other than Equity Interests or Indebtedness) that are not classified as current assets under GAAP and that are used or useful in a Permitted the Oil and Gas Business. Pending the final application of any Net Proceeds, the Company or any such Restricted Subsidiary may temporarily reduce revolving credit borrowings under the Working Capital Facility or otherwise invest the Net Proceeds in any manner that is not prohibited by this the Indenture. Any Net Proceeds from Asset Sales that are not applied or invested as provided in the second preceding paragraph of this covenant will constitute “Excess Proceeds.” When 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 $5.0 50.0 million, the Company will, within five (5) days thereof, will make an Asset Sale Offer to all Holders of Notes, and to all holders of other senior secured Pari Passu Indebtedness that is pari passu in right of payment and as to security interests with the Notes with respect to the assets that are the subject of such Asset Sale 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 then outstanding, to purchase the maximum amount Reduced Principal Amount of Notes and such other pari passu Pari Passu Indebtedness that may be purchased out of the Excess Proceeds in accordance with Proceeds, pursuant to the procedures set forth terms in Section 3.09 hereof3.04 hereof and this Section 4.10. The offer price for the Notes in any Asset Sale Offer will be equal to 100% of the aggregate principal amount of the Notes, Reduced Principal Amount plus accrued and unpaid interest interest, if any, to the Settlement Date, subject to the right of Holders of record on the relevant record date of purchaseto receive interest due on an Interest Payment Date that is on or prior to the Settlement Date, and will be payable in cash. If any Excess Proceeds remain after consummation of an Asset Sale Offer, the Company may use those Excess Proceeds for any purpose not otherwise prohibited by this the Indenture. If the aggregate principal amount Reduced Principal Amount of Notes and the amount of other pari passu Pari Passu Indebtedness tendered into in such Asset Sale Offer exceeds the amount of Excess Proceeds, the Trustee shall will select the Notes and such other pari passu Pari Passu Indebtedness to be purchased on a pro rata basisbasis (with such adjustments as may be deemed appropriate by the Company so that only Notes in denominations of Original Principal Amount of $1,000 or any integral multiple of $1,000 in excess thereof, will be purchased). Upon completion of each Asset Sale Offer, the amount of Excess Proceeds will be reset at zero. The Company will comply with the requirements of Rule 14e-1 under the Exchange Act and any other securities laws and regulations thereunder to the extent those laws and regulations are applicable in connection with each repurchase of Notes pursuant to an Asset Sale Offer. To the extent that the provisions of any securities laws or regulations conflict with the provisions of this Section 4.10, the Company will comply with the applicable securities laws and regulations and will not be deemed to have breached its obligations under such provisions by virtue of such compliance.
Appears in 2 contracts
Samples: Fifth Supplemental Indenture (Whiting Petroleum Corp), Fourth Supplemental Indenture (Whiting Petroleum Corp)
Limitation on Asset Sales. (a) The Company will Borrower shall not, and will shall not permit any of its Restricted Subsidiaries Subsidiary to, consummate an any Asset Sale unless:
(1i) the Company Borrower or the such Restricted Subsidiary, as the case may be, Subsidiary receives consideration at the time of the such Asset Sale at least equal to the Fair Market Value of the assets or Equity Interests issued or sold or otherwise disposed of; andproperty subject to such Asset Sale;
(2ii) in the case of Asset Sales which are not Permitted Asset Swaps, at least 8575% of the consideration received in paid to the Asset Sale by the Company Borrower or such Restricted Subsidiary in connection with such Asset Sale is in the form of cash. For purposes (a) cash or Cash Equivalents; (b) the assumption by the purchaser of this Section 5.10, each liabilities of the following will be deemed to be cash:
(1) any liabilities, as shown on the Company’s most recent consolidated balance sheet, of the Company Borrower or any Restricted Subsidiary (other than contingent liabilities and Indebtedness that are (x) by their terms subordinated to the Notes or any Note Guarantee, Loans) as a result of which the Borrower and the Restricted Subsidiaries are no longer obligated with respect to such liabilities; (y) unsecured, or (z) secured by a Lien on the assets or rights that are the subject of the Asset Sale, which Lien is junior in priority to the Liens securing the Notes or any Note Guarantee) that are assumed by the transferee of any such assets pursuant to a customary novation agreement that releases the Company or such Subsidiary from further liability;
(2c) any securities, notes or other obligations received by the Company Borrower or any such Restricted Subsidiary from such transferee that are contemporaneously, subject to ordinary settlement periods, converted by the Company Borrower or such Restricted Subsidiary into cash, cash (to the extent of the cash received received) within 90 days after receipt; or (d) a combination of the consideration specified in that conversionclauses (a) through (c); and
(3iii) any stock or assets of the kind referred Borrower delivers a certificate from an Officer to in the Administrative Agent certifying that such Asset Sale complies with the foregoing clauses (2i) or and (4ii).
(b) of the next paragraph of this covenant. Within 365 days after the receipt of any The Net Proceeds from an Asset Sale, the Company Available Cash (or any portion thereof) from Asset Sales may be applied by the applicable Borrower or a Restricted Subsidiary, as to the case may be) may apply extent the Borrower or such Net Proceeds:Restricted Subsidiary elects (or is required by the terms of any Debt):
(1i) to permanently prepay or permanently repay Indebtedness and other Obligations (i) any Debt under the Working Capital Facility Credit Facilities (and to correspondingly permanently reduce commitments with respect thereto;
), (2ii) Debt that ranks pari passu with the Loans, including the RHD Existing Notes (provided that if the Borrower shall so reduce obligations under such Debt, it will equally and ratably reduce obligations under the Loans by making an offer to acquire all prepay the Loans in accordance with paragraph (d) below), (iii) Debt of a Restricted Subsidiary, in each case other than Debt owed to the Borrower or substantially all an Affiliate of the assets ofBorrower; provided, that if an offer to purchase any Debt of RHDI or any Capital Stock of, another Permitted Business, if, after giving effect to any of its Restricted Subsidiaries is made in accordance with the terms of such acquisition of Capital StockDebt, the Permitted Business is or becomes (x) obligation to permanently reduce Debt of a Restricted Subsidiary will be deemed to be satisfied to the extent of the Company amount of the offer, whether or not accepted by the holders thereof, and (y) a Guarantor;
(3) to make capital expenditures in a Permitted Business (other than Equity Interests, Indebtedness or current assets); or
(4) to acquire other assets (other than Equity Interests or Indebtedness) that are not classified as current assets under GAAP and that are used or useful in a Permitted Business. Pending the final application of any Net Proceeds, the Company may temporarily reduce borrowings under the Working Capital Facility or otherwise invest the Net no Excess Proceeds in any manner that is not prohibited the amount of such offer will be deemed to exist following such offer or (iv) Debt which shall have been secured by this Indenture. Any Net Proceeds from the assets sold in the relevant Asset Sales that are not applied or invested Sale (except as provided in clauses (i), (ii) or (iii)); and/or
(ii) to reinvest in Additional Assets (including by means of an Investment in Additional Assets by a Restricted Subsidiary with Net Available Cash received by the second paragraph Borrower or another Restricted Subsidiary).
(c) Any Net Available Cash from an Asset Sale not applied in accordance with Section 8.4(b) within 365 days from the date of this covenant will the receipt of such Net Available Cash shall constitute “Excess Proceeds.” Pending the final application of the Net Available Cash, the Borrower or any Restricted Subsidiary may temporarily reduce Debt under the revolving portion of the Credit Facilities or otherwise invest such Net Available Cash in Temporary Cash Investments.
(d) When the aggregate amount of Excess Proceeds exceeds $5.0 million100,000,000, the Company will, within five (5) days thereof, Borrower will be required to make an offer to prepay (the “Asset Sale Offer to all Holders Prepayment Offer”) the Loans and all holders of any other senior secured Indebtedness that is pari passu in right of payment and as to security interests Debt (including the RHD Existing Notes) outstanding with the Notes with respect to the assets that are the subject of such Asset Sale containing similar provisions similar to those set forth in this Indenture with respect to offers requiring an offer to purchase or redeem prepay such Debt, as applicable, with such proceeds, which offer shall be in the proceeds of sales of assets to purchase the maximum amount of Notes and such other pari passu Indebtedness that may be purchased out of the Allocable Excess Proceeds in accordance with the procedures set forth in Section 3.09 hereof. The offer price for the Notes in any Asset Sale Offer will be equal Proceeds, on a pro rata basis according to principal amount, at 100% of the aggregate principal amount of the Notesthereof, plus accrued and unpaid interest to the prepayment date or purchase date, as applicable, in accordance with the procedures set forth herein or therein, as applicable. To the extent that any portion of purchase, the amount of Net Available Cash remains after compliance with the preceding sentence and will be payable provided that all Lenders have been given the opportunity to accept repayment of their Loans in cash. If any Excess Proceeds remain after consummation of an Asset Sale Offeraccordance with this Agreement, the Company Borrower or such Restricted Subsidiary may use those Excess Proceeds such remaining amount for any purpose not otherwise prohibited restricted by this Indenture. If the aggregate principal amount of Notes Agreement and the amount of other pari passu Indebtedness tendered into such Asset Sale Offer exceeds the amount of Excess Proceeds, the Trustee shall select the Notes and such other pari passu Indebtedness to be purchased on a pro rata basis. Upon completion of each Asset Sale Offer, the amount of Excess Proceeds will be reset at to zero.
Appears in 1 contract
Limitation on Asset Sales. (a) The Company will shall not, and will shall not permit any of its Restricted Subsidiaries Subsidiary to, consummate an make any Asset Sale unless:
unless (1i) the Company or the such Restricted Subsidiary, as the case may be, receives consideration at the time of the such Asset Sale at least equal to the Fair Market Value fair market value (as 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 other property sold or otherwise disposed of; and
(2) at least 85% of the consideration received in the Asset Sale and (ii) at least 75% of such consideration consists of either cash or Cash Equivalents; provided, however, that for purposes of this Section 4.16, "cash" shall include (x) the amount of any Indebtedness (other than any Indebtedness that is by its terms subordinated to the Notes) of the Company or such Restricted Subsidiary is in the form of cash. For purposes of this Section 5.10, each of the following will be deemed to be cash:
(1) any liabilities, as shown on the Company’s 's or such Restricted Subsidiary's most recent consolidated balance sheet, of sheet or in the Company or any Subsidiary (other than contingent liabilities and Indebtedness notes thereto that are (x) by their terms subordinated to the Notes or any Note Guarantee, (y) unsecured, or (z) secured by a Lien on the assets or rights that are the subject of the Asset Sale, which Lien is junior in priority to the Liens securing the Notes or any Note Guarantee) that are assumed by the transferee of any such assets pursuant or other property in such Asset Sale (and excluding any liabilities that are incurred in connection with or in anticipation of such Asset Sale), but only to the extent that such assumption is effected on a customary novation agreement basis such that releases there is no further recourse to the Company or any of the Restricted Subsidiaries with respect to such Subsidiary from further liability;
liabilities and (2y) any securitiesnotes, notes obligations or other obligations securities received by the Company or any such Restricted Subsidiary from such transferee that are contemporaneously, subject to ordinary settlement periods, converted within 60 days by the Company or such Restricted Subsidiary into cash, cash (to the extent of the cash received in that conversion; andreceived).
(3b) any stock or assets of the kind referred to in clauses (2) or (4) of the next paragraph of this covenant. Within 365 270 days after the receipt of any Net Proceeds from an Asset Sale, the Company (or the applicable Restricted Subsidiary, as Subsidiary may elect to apply the case may beNet Proceeds from such Asset Sale to (a) may apply such Net Proceeds:
(1) to repay Indebtedness and other Obligations under the Working Capital Facility and to correspondingly permanently reduce commitments with respect thereto;
(2) to acquire all or substantially all any Senior Debt of the assets ofCompany or any Indebtedness of the applicable Restricted Subsidiary and/or (b) make an investment in, or any Capital Stock of, another Permitted Business, if, after giving effect to any such acquisition of Capital Stockacquire assets and properties that will be used in, the Permitted Business is or becomes (x) a Restricted Subsidiary business of the Company and (y) a Guarantor;
(3) to make capital expenditures the Restricted Subsidiaries existing on the Issue Date or in a Permitted Business (other than Equity Interests, Indebtedness or current assets); or
(4) to acquire other assets (other than Equity Interests or Indebtedness) that are not classified as current assets under GAAP and that are used or useful in a Permitted Businessbusinesses reasonably related thereto. Pending the final application of any such Net Proceeds, the Company or any Restricted Subsidiary may temporarily reduce borrowings Indebtedness of the Company under the Working Capital Senior Credit Facility or otherwise temporarily invest the such Net Proceeds in any manner that is not prohibited by this IndentureInvestments described under clauses (i) through (iii) of the definition of Permitted Investments. Any Net Proceeds from an Asset Sales that are Sale not applied or invested as provided in the second paragraph first sentence of this covenant Section 4.16(b) within 270 days of such Asset Sale will be deemed to constitute “"Excess Proceeds.” When "
(c) Each date that the aggregate amount of Excess Proceeds exceeds $5.0 million, the Company will, within five (5) days thereof, make in respect of which an Asset Sale Offer to all Holders and all holders of other senior secured Indebtedness that is pari passu in right of payment and (as to security interests with the Notes with respect to the assets that are the subject of such defined below) has not been made exceeds $5.0 million shall be deemed an "Asset Sale containing provisions similar to those set forth Offer Trigger Date." As soon as practicable, but in this Indenture with respect to offers to purchase or redeem with no event later than 20 business days after each Asset Sale Offer Trigger Date, the proceeds of sales of assets Company shall commence an offer (an "Asset Sale Offer") to purchase the maximum principal amount of Notes and such other pari passu Indebtedness that may be purchased out of the Excess Proceeds in accordance with the procedures set forth in Section 3.09 hereofProceeds. The offer price for the Any Notes in any to be purchased pursuant to an Asset Sale Offer will shall be purchased pro rata based on the aggregate principal amount of Notes outstanding, and all Notes shall be purchased at an offer price in cash in an amount equal to 100% of the aggregate principal amount of the Notesthereof, plus accrued and unpaid interest interest, if any, to the date of purchase, and will be payable in cash. If To the extent that any Excess Proceeds remain after consummation completion of an Asset Sale Offer, the Company may use those Excess Proceeds the remaining amount for any purpose not general corporate purposes otherwise prohibited permitted by this Indenture. If In the aggregate principal amount event that the Company is prohibited under the terms of any agreement governing outstanding Senior Debt of the Company from repurchasing Notes and the amount of other pari passu Indebtedness tendered into such with Excess Proceeds pursuant to an Asset Sale Offer exceeds as set forth in the amount first sentence of Excess Proceedsthis Section 4.16(c), the Trustee Company shall select promptly use all Excess Proceeds to permanently reduce such outstanding Senior Debt of the Notes and such other pari passu Indebtedness to be purchased on a pro rata basisCompany. Upon completion the consummation of each any Asset Sale Offer, the amount of Excess Proceeds shall be deemed to be reset to zero.
(d) Notice of an Asset Sale Offer shall be mailed, by first-class mail (with a copy to the Trustee), by the Company not later than the 20th business day after the related Asset Sale Offer Trigger Date to each Holder of Notes at such Holder's registered address, stating: (i) that an Asset Sale Offer Trigger Date has occurred and that the Company is offering to purchase the maximum principal amount of Notes that may be purchased out of the Excess Proceeds (to the extent provided in the immediately preceding paragraph), at an offer price in cash in an amount equal to 100% of the principal amount thereof, plus accrued and unpaid interest, if any, to the date of the purchase (the "Asset Sale Offer Purchase Date"), which shall be a business day, specified in such notice, that is not earlier than 30 days or later than 60 days from the date such notice is mailed, (ii) the amount of accrued and unpaid interest, if any, as of the Asset Sale Offer Purchase Date, (iii) that any Note not tendered will continue to accrue interest, (iv) that, unless the Company defaults in the payment of the purchase price for the Notes payable pursuant to the Asset Sale Offer, any Notes accepted for payment pursuant to the Asset Sale Offer shall cease to accrue interest after the Asset Sale Offer Purchase Date, (v) that Holders electing to have a Note purchased pursuant to a Asset Sale Offer will be reset required to surrender the Note, with the form entitled "Option of Holder to Elect Purchase" on the reverse of the Note completed, to the Paying Agent at zerothe address specified in the notice prior to the close of business on the third Business Day prior to the Asset Sale Offer Purchase Date, (vi) that Holders will be entitled to withdraw their election if the Paying Agent receives, not later than the second Business Day prior to the Asset Sale Offer Purchase Date, a facsimile transmission or letter setting forth the name of the Holder, the principal amount of the Notes the Holder delivered for purchase and a statement that such Holder is withdrawing his election to have such Note purchased, (vii) that Holders whose Notes are purchased only in part will be issued new Notes in a principal amount equal to the unpurchased portion of the Notes surrendered; provided, however, that each Note purchased and each new Note issued shall be in an original principal amount of $1,000 or integral multiples thereof, and (viii) such other information as may be required by applicable laws and regulations.
(e) On the Asset Sale Offer Purchase Date, the Company will (i) accept for payment the maximum principal amount of Notes or portions thereof tendered pursuant to the Asset Sale Offer that can be purchased out of Excess Proceeds from such Asset Sale that are to be applied to an Asset Sale Offer, (ii) deposit with the Paying Agent U.S. Legal Tender sufficient to pay the aggregate purchase price of all Notes or portions thereof accepted for payment, and (iii) deliver or cause to be delivered to the Trustee all Notes tendered pursuant to the Asset Sale Offer. If less than all Notes tendered pursuant to the Asset Sale Offer are accepted for payment by the Company for any reason consistent with this Indenture, selection of the Notes to be purchased by the Company shall be in compliance with the requirements of the principal national securities exchange, if any, on which the Notes are listed or, if the Notes are not so listed, on a pro rata basis or by lot; provided, however, that Notes accepted for payment in part shall only be purchased in integral multiples of $1,000. The Paying Agent shall promptly mail to each Holder of Notes or portions thereof accepted for payment an amount equal to the purchase price for such Notes plus accrued and unpaid interest, if any, thereon, and the Trustee shall promptly authenticate and mail to such Holder of Notes accepted for payment in part a new Note equal in principal amount to any unpurchased portion of the Notes, and any Note not accepted for payment in whole or in part shall be promptly returned to the Holder of such Note. On and after an Asset Sale Offer Purchase Date, interest will cease to accrue on the Notes or portions thereof accepted for payment, unless the Company defaults in the payment of the purchase price therefor. The Company will publicly announce the results of the Asset Sale Offer on or as soon as practicable after the Asset Sale Offer Purchase Date.
(f) This Section 4.16 will not apply to a transaction consummated in compliance with Article Five.
(g) The Company will comply with the applicable tender offer rules, including the requirements of Section 14(e) and Rule 14e-1 under the Exchange Act, and all other applicable securities laws and regulations in connection with any Asset Sale Offer and will be deemed not to be in violation of any of the covenants under this Indenture to the extent such compliance is in conflict with such covenants.
Appears in 1 contract
Limitation on Asset Sales. The Company will notConsummate any Asset Sale, and will not permit any of its Restricted Subsidiaries to, consummate an Asset Sale unlessexcept:
(1a) sales or other dispositions of inventory, receivables and other current assets, in the ordinary course of business;
(b) sales or other dispositions of Temporary Cash Investments if the Net Cash Proceeds thereof are delivered to Borrowers or their Subsidiaries;
(c) sales, transfers, assignments or other disposition of any property or equipment that has become damaged, worn out, obsolete or otherwise unsuitable for use in connection with the business of any Borrower or its Subsidiaries if the Net Cash Proceeds thereof are delivered to Borrowers or their Subsidiaries;
(d) sales, transfers or other dispositions: (i) from any Loan Party to a Loan Party that is party to a Security Agreement; (ii) from any Loan Party to a Loan Party in the ordinary course of business in accordance with past practice; and (iii) to any Person in an amount not to exceed MXN$150,000,000 in the aggregate, in any fiscal year for all such sales, transfers or other dispositions (excluding sales, transfers or other dispositions permitted under (i) or (ii) above);
(e) an issuance of Equity Interests by any Borrower or any of such Borrower’s Subsidiaries to one or more of the Loan Parties;
(f) the Company sale, lease or the Restricted Subsidiary, as the case may be, receives consideration at the time other disposition of the Asset Sale at least equal to the Fair Market Value of the assets or Equity Interests issued or sold or otherwise disposed of; and
(2) at least 85% of the consideration received in the Asset Sale by the Company or such Restricted Subsidiary is in the form of cash. For purposes of this Section 5.10, each of the following will be deemed to be cash:
(1) any liabilities, as shown on the Company’s most recent consolidated balance sheet, of the Company or any Subsidiary (other than contingent liabilities and Indebtedness that are (x) by their terms subordinated to the Notes or any Note Guarantee, (y) unsecured, or (z) secured by a Lien on the assets or rights that are the subject of the Asset Sale, which Lien is junior in priority to the Liens securing the Notes extent constituting a Restricted Payment permitted by Section 6.2 or any Note Guarantee) an Investment that are assumed is permitted by the transferee of any such assets pursuant to a customary novation agreement that releases the Company or such Subsidiary from further liabilitySection 6.3 hereof;
(2g) any securitiessales, 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, to the extent of the cash received in that conversion; and
(3) any stock or assets of the kind referred to in clauses (2) or (4) of the next paragraph of this covenant. Within 365 days after the receipt of any Net Proceeds from an Asset Sale, the Company (or the applicable Restricted Subsidiary, as the case may be) may apply such Net Proceeds:
(1) to repay Indebtedness transfers and other Obligations under the Working Capital Facility and to correspondingly permanently reduce commitments with respect thereto;
(2) to acquire all or substantially all dispositions of the assets of, or any Capital Stock of, another Permitted Business, if, after giving effect to any such acquisition of Capital Stock, the Permitted Business is or becomes (x) a Restricted Subsidiary of the Company and (y) a Guarantor;
(3) to make capital expenditures in a Permitted Business (other than Equity Interests, Indebtedness or current assets); or
(4) to acquire other assets (other than Equity Interests or Indebtednessin a Subsidiary) that are not classified as current permitted by any other clause of this Section; provided that (i) the consideration received by the Borrowers or their Subsidiaries is at least equal to the fair market value of the assets under GAAP sold or disposed of, (ii) at least 80% of the consideration received consists of cash or Temporary Cash Investments, and that are used or useful in a Permitted Business. Pending the final application of any Net Proceeds, the Company may temporarily reduce borrowings under the Working Capital Facility or otherwise invest (iii) the Net Cash Proceeds in any manner that is not prohibited by this Indenture. Any Net Proceeds from Asset Sales that are not applied or invested as provided in the second paragraph of this covenant will constitute “Excess Proceeds.” When the aggregate amount of Excess Proceeds exceeds $5.0 million, the Company will, within five (5) days thereof, make an Asset Sale Offer to all Holders and all holders of other senior secured Indebtedness that is pari passu in right of payment and as to security interests with the Notes with respect to the assets that are the subject of such Asset Sale containing provisions similar are applied to those the extent required by Section 2.4(b); and
(h) sales of the assets set forth in this Indenture with respect to offers under the headings “Broiler Farms” and “Other Properties” set forth on Schedule 6.10(h) hereto so long as the Net Cash Proceeds of such sales are used to purchase assets useful or redeem with the proceeds of sales of assets to purchase the maximum amount of Notes and such other pari passu Indebtedness that may be purchased out of the Excess Proceeds in accordance with the procedures set forth in Section 3.09 hereof. The offer price necessary for the Notes in any Asset Sale Offer will be equal to 100% business within 360 days of the aggregate principal amount of the Notes, plus accrued and unpaid interest to the date of purchase, and will be payable in cash. If any Excess Proceeds remain after consummation of an Asset Sale Offer, the Company may use those Excess Proceeds for any purpose not otherwise prohibited by this Indenture. If the aggregate principal amount of Notes and the amount of other pari passu Indebtedness tendered into such Asset Sale Offer exceeds the amount of Excess Proceeds, the Trustee shall select the Notes and such other pari passu Indebtedness to be purchased on a pro rata basis. Upon completion of each Asset Sale Offer, the amount of Excess Proceeds will be reset at zerosale.
Appears in 1 contract
Limitation on Asset Sales. (a) The Company will shall not, and will shall not permit any of its Restricted Subsidiaries to, consummate an Asset Sale unless:
(1i) the Company or the and/or such Restricted Subsidiary, as the case may be, receives consideration at the time of the such Asset Sale at least equal to the Fair Market Value fair market value (as conclusively evidenced by an Officers' Certificate delivered to the Trustee or, if such Asset Sale involves aggregate consideration in excess of $20.0 million, a resolution of the Board of Directors that is set forth in an Officers' Certificate delivered to the Trustee) of the assets or Equity Interests Capital Stock issued or sold or otherwise disposed of; and,
(2ii) at least 8575% of the consideration therefor received in the Asset Sale by the Company or and/or such Restricted Subsidiary is in the form of cash. For purposes of this Section 5.10cash or Cash Equivalents, each and
(iii) if such Asset Sale involves Collateral, (A) it complies with the applicable provisions of the following will Security Documents and (B) all consideration received in such Asset Sale (including Additional Assets) shall, to the extent required by the Security Documents, be deemed expressly made subject to be cash:
the Lien under the Security Documents; provided that the amount of (1x) any liabilities, liabilities (as shown on the Company’s 's or such Restricted Subsidiary's most recent consolidated balance sheet, ) of the Company or any Restricted Subsidiary (other than contingent liabilities and Indebtedness that are (x) by their terms subordinated to the Notes or any Note Guarantee, (y) unsecured, or (z) secured by a Lien on the assets or rights that are the subject of the Asset Sale, which Lien is junior in priority to the Liens securing the Notes or any Note GuaranteeSubordinated Debt) that are assumed by the transferee of any such assets pursuant to a customary novation agreement that releases the Company or such Restricted Subsidiary from further liability;
liability and (2y) any securities, notes or other obligations received by the Company or any such Restricted Subsidiary from such transferee that transferee, to the extent they are contemporaneously, subject to ordinary settlement periods, promptly converted or monetized by the Company or such Restricted Subsidiary into cash, cash (to the extent of the cash received in that conversion; andreceived), shall be deemed to be cash for purposes of this provision.
(3b) any stock or assets of the kind referred to in clauses (2) or (4) of the next paragraph of this covenant. Within 365 360 days after the receipt of any Net Proceeds from an Asset Sale, the Company (or the applicable such Restricted Subsidiary, as the case may be) Subsidiary may apply such Net Proceeds, at its option:
(1i) to permanently repay Bank Obligations or Indebtedness and other Obligations under the Working Capital Facility of any Restricted Subsidiary that is not a Subsidiary Guarantor (and to correspondingly permanently reduce commitments with respect thereto;thereto in the case of revolving borrowings); or
(2ii) to acquire all Additional Assets (to the extent otherwise permitted by this Indenture) or substantially all of the assets ofmake a capital expenditure, or any Capital Stock of, another Permitted Business, if, after giving effect to any such acquisition of Capital Stock, the Permitted Business is or becomes (x) a Restricted Subsidiary of the Company and (y) a Guarantor;
(3) to make capital expenditures in each case in a Permitted Business (other than Equity Interests, Indebtedness or current assetsenter into a binding commitment for any such acquisition or expenditure so long as any such Additional Assets are acquired or any such capital expenditure is made pursuant thereto within 180 days of the expiration of the aforementioned 360-day period); or
(4) to acquire other assets (other than Equity Interests or Indebtedness) that are not classified as current assets under GAAP and that are used or useful in a Permitted Business. Pending the final application of any such Net Proceeds, the Company may temporarily reduce borrowings the revolving Indebtedness under the Working Capital Facility New Credit Agreement or otherwise invest the such Net Proceeds in any manner that is not prohibited by this Indenture. Any Net Proceeds from Asset Sales that are not applied or invested as provided in the second paragraph first sentence of this covenant paragraph will be deemed to constitute “"Excess Proceeds.” When " On any date that the aggregate amount of Excess Proceeds exceeds $5.0 million20.0 million (an "Asset Sale Offer Trigger Date"), the Company will, within five (5) days thereof, will be required to make an Asset Sale Offer offer to all Holders and all holders of other senior secured Indebtedness that is pari passu in right of payment and as to security interests with the Notes with respect to the assets that are the subject of such (an "Asset Sale 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 Offer") to purchase the maximum principal amount of Notes and such and, if the Company is required to do so under the terms of any other Indebtedness ranking pari passu with such Notes ("Other Indebtedness"), such Other Indebtedness on a pro rata basis with the Notes that may be purchased out of the Excess Proceeds Proceeds, at a purchase price in cash in an amount equal to 100% of the principal amount thereof plus accrued and unpaid interest, if any, thereon, to the date of purchase in accordance with the procedures set forth in Section 3.09 hereof4.12(c). The offer price for To the Notes in any Asset Sale Offer will be equal to 100% of extent that the aggregate principal amount of the Notes, plus accrued Notes (and unpaid interest any Other Indebtedness subject to the date of purchase, and will be payable in cash. If any Excess Proceeds remain after consummation of an such Asset Sale Offer) tendered pursuant to such Asset Sale Offer is less than the Excess Proceeds, the Company may may, subject to the other terms of this Indenture, use those any remaining Excess Proceeds for any purpose not otherwise prohibited by this Indenture. If the aggregate principal amount of Notes and the amount of other pari passu Indebtedness tendered into such surrendered by Holders thereof in connection with any Asset Sale Offer exceeds the amount of Excess Proceeds, the Trustee shall select the Notes and such other pari passu Indebtedness to be purchased on a pro rata basis. Upon completion of each the Asset Sale Offer, the amount of Excess Proceeds will that was the subject of such Asset Sale Offer shall be reset at zero.
(c) The Company shall mail (or cause the Trustee to mail) a notice of a Asset Sale Offer by first-class mail, postage prepaid, to the record Holders as shown on the register of Holders within 30 days following the Asset Sale Offer Trigger Date, with a copy, if such notice is being mailed by the Company, to the Trustee, containing all instructions and materials necessary to enable such Holders to tender Notes pursuant to the Asset Sale Offer and shall state the following terms:
(i) that the Asset Sale Offer is being made pursuant to this Section 4.12 and that all Notes tendered will be accepted for payment; provided, however, that if the aggregate principal amount of Notes and Other Indebtedness tendered in a Asset Sale Offer plus accrued interest at the expiration of such offer exceeds the Excess Proceeds, the Company shall select on a pro rata basis, the Notes and Other Indebtedness to be purchased (with such adjustments as may be deemed appropriate by the Company so that only Notes in denominations of $1,000, as applicable, or multiples thereof shall be purchased);
(ii) the offer price (including the amount of accrued interest) and the Asset Sale Offer date of payment ("Asset Sale Offer Payment Date"), which shall be not less than 30 nor more than 60 days following the date notice of the applicable Asset Sale Offer is mailed;
(iii) that any Note not tendered will continue to accrue interest;
(iv) that, unless the Company defaults in making payment therefor, any Note accepted for payment pursuant to the Asset Sale Offer shall cease to accrue interest after the Asset Sale Offer Payment Date;
(v) that Holders electing to have a Note purchased pursuant to an Asset Sale Offer will be required to surrender such Note, with the form entitled "Option of Holder to Elect Purchase" on the reverse of the Note completed, to the Paying Agent at the address specified in the notice prior to the close of business on the third Business Day prior to the Asset Sale Offer Payment Date;
(vi) that Holders will be entitled to withdraw their election if the Paying Agent receives, not later than the close of business on the second Business Day prior to the Asset Sale Offer Payment Date, a telegram, facsimile transmission or letter setting forth the name of such Holder, the aggregate principal amount of the Notes such Holder delivered for purchase and a statement that such Holder is withdrawing his election to have such Notes purchased; and
(vii) that Holders whose Notes are purchased only in part will be issued new Notes in an aggregate principal amount equal to the unpurchased portion of the Notes surrendered; provided, however, that each Note purchased and each new Note issued shall be in a principal amount of $1,000 or integral multiples thereof.
(d) On or before the Asset Sale Offer Payment Date, the Company shall (1) accept for payment Notes or portions thereof (in integral multiples of $1,000) validly tendered and not withdrawn pursuant to the Asset Sale Offer, (2) deposit with the Paying Agent an amount sufficient to pay the purchase price plus accrued and unpaid interest, if any, of all Notes to be purchased and (3) deliver or cause to be delivered to the Trustee the Notes so accepted together with an Officers' Certificate stating the aggregate principal amount of Notes or portions of Notes being purchased by the Company. Upon receipt by the Paying Agent of the monies specified in clause (2) above and a copy of the Officers' Certificate specified in clause (3) above, the Paying Agent shall promptly mail (or deliver by wire transfer) to the Holders of Notes so accepted payment in an amount equal to the purchase price plus accrued and unpaid interest, if any, out of the funds deposited with the Paying Agent in accordance with the preceding sentence. The Trustee shall promptly authenticate and mail (or cause to be transferred by book entry) to such Holders new Notes equal in principal amount to any unpurchased portion of the Notes surrendered, if any. Upon the payment of the purchase price for the Notes accepted for purchase, the Trustee shall return the Notes purchased to the Company for cancellation. Any monies remaining after the purchase of Notes pursuant to a Asset Sale Offer shall be returned within three business days by the Trustee to the Company except with respect to monies owed as obligations to the Trustee pursuant to Article Seven. For purposes of this Section 4.12, the Trustee shall act as the Paying Agent.
(e) The Company will comply with the requirements of Rule 14e-1 under the Exchange Act and any other securities laws and regulations thereunder to the extent such laws and regulations are applicable in connection with the repurchase of Notes pursuant to a Asset Sale Offer. To the extent that the provisions of any securities laws or regulations conflict with the provisions of this Section 4.12, the Company shall comply with the applicable securities laws and regulations and shall not be deemed to have breached its obligations under the provisions of this Section 4.12 by virtue thereof.
Appears in 1 contract
Samples: Indenture (FMC Corp)
Limitation on Asset Sales. The Company will not, and will not permit any of its Restricted Subsidiaries to, consummate an Asset Sale unless:
(1) the Company (or the Restricted Subsidiary, as the case may be, ) receives consideration at the time of the Asset Sale at least equal to the Fair Market Value of the assets or Equity Interests Capital Stock issued or sold or otherwise disposed of; and
(2) at least 8575% of the consideration received in the Asset Sale by the Company or such Restricted Subsidiary is in the form of cash. For purposes of this Section 5.10provision, each of the following will be deemed to be cash:
(1a) any liabilities, as shown on the Company’s most recent consolidated balance sheet, sheet of the Company or any Restricted Subsidiary (other than contingent liabilities and Indebtedness liabilities that are (x) by their terms subordinated to the Notes or any Note Guarantee, (y) unsecured, or (z) secured by a Lien on the assets or rights that are the subject of the Asset Sale, which Lien is junior in priority to the Liens securing the Notes or any Note Guarantee) that are assumed by the transferee of any such assets pursuant to a customary novation assignment and assumption agreement that releases the Company or such Restricted Subsidiary from further liability;
(2b) 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, cash within 365 days of their receipt to the extent of the cash received in that conversion; and
(3c) any stock Designated Non-cash Consideration received by the Company or assets such Restricted Subsidiary in such Asset Sale having an aggregate fair market value (as determined in good faith by the Company), taken together with all other Designated Non-cash Consideration received pursuant to this clause (c) that is at that time outstanding, not to exceed 10.0% of Total Assets at the time of the kind referred receipt of such Designated Non-cash Consideration, with the fair market value of each item of Designated Non-cash Consideration being measured at the time received and without giving effect to subsequent changes in clauses (2) or (4) of the next paragraph of this covenantvalue. Within 365 540 days after the receipt of any Net Cash Proceeds from an Asset Sale, the Company (or the applicable Restricted Subsidiary, as the case may be) may apply such Net ProceedsCash Proceeds at its option:
(1) to permanently repay Indebtedness and other Obligations or prepay Debt outstanding under the Working Capital Facility and Credit Agreement and, if the Debt repaid is revolving credit Debt, to correspondingly permanently reduce commitments with respect thereto;
(2) to acquire all or substantially all of the assets of, or any Capital Stock of, another Permitted Business, if, after giving effect to any such acquisition of Capital Stock, the Permitted Business is or becomes (x) a Restricted Subsidiary of the Company and (y) a Guarantor;
(3) to make capital expenditures in a Permitted Business (other than Equity Interests, Indebtedness or current assets); or
(4) to acquire other assets (other than Equity Interests or Indebtedness) that are not classified as current assets under GAAP and that are used or useful in a Permitted Business. Pending ; or
(4) any combination of the final application of any Net Proceeds, the Company may temporarily reduce borrowings under the Working Capital Facility or otherwise invest the Net Proceeds in any manner that is not prohibited by this Indentureforegoing. Any Net Cash Proceeds from Asset Sales that are not applied or invested as provided in the second preceding paragraph of this covenant Section 4.10 will constitute “Excess Proceeds.” When the aggregate amount of Excess Proceeds exceeds $5.0 25.0 million, within thirty days thereof, the Company will, within five (5) days thereof, will make an Asset Sale Offer to Purchase to all Holders and all holders of other senior secured Indebtedness that is pari passu in right of payment and as to security interests with the Notes with respect to the assets that are the subject of such Asset Sale 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 amount of Notes and such other pari passu Indebtedness that may be purchased out of Additional Notes equal to the Excess Proceeds in accordance with the procedures set forth in Section 3.09 hereofProceeds. The offer price for the Notes in any Asset Sale Offer to Purchase will be equal to 100% of the aggregate principal amount of the Notes, plus accrued and unpaid interest to the date of purchase, and will be payable in cash. If any Excess Proceeds remain after consummation of an Asset Sale OfferOffer to Purchase, the Company may use those Excess Proceeds for any purpose not otherwise prohibited by this Indenture. If the aggregate principal amount of Notes and the amount of other pari passu Indebtedness Additional Notes tendered into such Asset Sale Offer to Purchase exceeds the amount of Excess Proceeds, the Trustee shall will select the Notes and such other pari passu Indebtedness Additional Notes to be purchased on a pro rata basis. Upon completion of each Asset Sale OfferOffer to Purchase, the amount of Excess Proceeds will be reset at zero. The Company will comply with the requirements of any applicable securities laws and regulations thereunder to the extent those laws and regulations are applicable in connection with each repurchase of Notes pursuant to an Offer to Purchase. To the extent that the provisions of any securities laws or regulations conflict with the Asset Sale provisions of this Indenture, the Company will comply with the applicable securities laws and regulations and will not be deemed to have breached its obligations under the Asset Sale provisions of this Indenture by virtue of such compliance.
Appears in 1 contract
Samples: Indenture (Actuant Corp)
Limitation on Asset Sales. (a) The Company will shall not, and will shall not permit any of its Restricted Subsidiaries Subsidiary to, directly or indirectly, consummate an any Asset Sale unless:
unless (1i) the Company or the such Restricted Subsidiary, as the case may be, Subsidiary receives consideration at the time of the such Asset Sale at least equal to the Fair Market Value of the assets or Equity Interests issued or sold or otherwise disposed ofProperty subject to such Asset Sale; and
(2ii) at least 8575.0% of the consideration received in the Asset Sale by paid to the Company or such Restricted Subsidiary in connection with such Asset Sale (except for a Permitted Asset Swap) is in the form of cash. For purposes cash or cash equivalents or the assumption by the purchaser of this Section 5.10, each of the following will be deemed to be cash:
(1) any liabilities, as shown on the Company’s most recent consolidated balance sheet, liabilities of the Company or any Restricted Subsidiary (other than contingent liabilities and Indebtedness that are (x) by their terms subordinated to the Notes Securities) as a result of which the Company and the Restricted Subsidiaries are no longer obligated with respect to such liabilities; and (iii) the Company delivers an Officers' Certificate to the Trustee certifying that such Asset Sale complies with the foregoing clauses (i) and (ii).
(b) The Net Available Cash (or any Note Guarantee, (yportion thereof) unsecured, or (z) secured by a Lien on the assets or rights that are the subject of the from Asset Sale, which Lien is junior in priority to the Liens securing the Notes or any Note Guarantee) that are assumed by the transferee of any such assets pursuant to a customary novation agreement that releases the Company or such Subsidiary from further liability;
(2) any securities, notes or other obligations received Sales may be applied by the Company or any such a Restricted Subsidiary from such transferee Subsidiary, to the extent that are contemporaneously, subject to ordinary settlement periods, converted by the Company or such Restricted Subsidiary into cashelects (or is required by the terms of any Debt): (a) to Repay Senior Debt of the Company (excluding any Debt owed to an Affiliate of the Company); or (b) subject to Section 4.04, to reinvest in Additional Assets (including by means of an Investment in Additional Assets by a Restricted Subsidiary with Net Available Cash received by the Company or another Restricted Subsidiary). Pending such application, and subject in all respects to the procedures set forth below, the Company may, to the extent of the cash received in that conversion; andsuch use would not constitute a Repayment, use such Net Available Cash to temporarily reduce Debt.
(3c) any stock or assets Any Net Available Cash from an Asset Sale not applied in accordance with the preceding paragraph within 270 days from the date of the kind referred to in clauses (2) or (4) of the next paragraph of this covenant. Within 365 days after the receipt of any Net Proceeds from an Asset Sale, the Company (or the applicable Restricted Subsidiary, as the case may be) may apply such Net Proceeds:
Available Cash or that is not (1to the extent not used to temporarily reduce Debt without reducing related loan commitments) to repay Indebtedness and other Obligations under segregated from the Working Capital Facility and to correspondingly permanently reduce commitments with respect thereto;
(2) to acquire all or substantially all of the assets of, or any Capital Stock of, another Permitted Business, if, after giving effect to any such acquisition of Capital Stock, the Permitted Business is or becomes (x) a Restricted Subsidiary general funds of the Company for investment in identified Additional Assets in respect of a project that shall have been commenced, and (y) a Guarantor;
(3) for which binding contractual commitments have been entered into, prior to make capital expenditures in a Permitted Business (other than Equity Interests, Indebtedness or current assets); or
(4) to acquire other assets (other than Equity Interests or Indebtedness) that are not classified as current assets under GAAP the end of such 270-day period and that are used shall not have been completed or useful in a Permitted Business. Pending abandoned shall constitute "Excess Proceeds"; PROVIDED, HOWEVER, that the final application amount of any Net Proceeds, the Company may temporarily reduce borrowings under the Working Capital Facility or otherwise invest the Available Cash that ceases to be so segregated as contemplated above and any Net Proceeds in any manner Available Cash that is not prohibited by this Indenture. Any Net Proceeds from Asset Sales segregated in respect of a project that are not applied is abandoned or invested as provided in the second paragraph of this covenant will completed shall also constitute “"Excess Proceeds.” " at the time any such Net Available Cash ceases to be so segregated or at the time the relevant project is so abandoned or completed, as applicable. When the aggregate amount of Excess Proceeds exceeds $5.0 millionmillion (taking into account income earned on such Excess Proceeds, if any), the Company willwill be required to make an offer to purchase (the "Prepayment Offer") the Securities which offer shall be in the amount of the Allocable Excess Proceeds, within five (5) days on a PRO RATA basis according to principal amount, at a purchase price equal to 100.0% of the principal amount thereof, make an Asset Sale Offer plus accrued and unpaid interest, if any, to all Holders and all holders of other senior secured Indebtedness that is pari passu in the purchase date (subject to the right of Holders of record on the relevant record date to receive interest due on the relevant interest payment and as to security interests with the Notes with respect to the assets that are the subject of such Asset Sale 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 amount of Notes and such other pari passu Indebtedness that may be purchased out of the Excess Proceeds date), in accordance with the procedures (including prorating in the event of oversubscription) set forth in Section 3.09 hereofherein. The offer price for To the Notes in extent that any Asset Sale Offer will be equal to 100% portion of the aggregate principal amount of Net Available Cash remains after compliance with the Notes, plus accrued preceding sentence and unpaid interest provided that all Holders of Securities have been given the opportunity to the date of purchase, and will be payable tender their Securities for purchase in cash. If any Excess Proceeds remain after consummation of an Asset Sale Offeraccordance with Section 4.07(d), the Company or such Restricted Subsidiary may use those Excess Proceeds such remaining amount for any purpose not otherwise prohibited permitted by this Indenture. If the aggregate principal amount of Notes Indenture and the amount of other pari passu Indebtedness tendered into such Asset Sale Offer exceeds the amount of Excess Proceeds, the Trustee shall select the Notes and such other pari passu Indebtedness to be purchased on a pro rata basis. Upon completion of each Asset Sale Offer, the amount of Excess Proceeds will be reset to zero. The term "Allocable Excess Proceeds" will mean the product of (i) the Excess Proceeds and (ii) a fraction, the numerator of which is the aggregate principal amount of the Securities outstanding on the date of the Prepayment Offer and the denominator of which is the sum of the aggregate principal amount of the Securities outstanding on the date of the Prepayment Offer and the aggregate principal amount of other Debt of the Company outstanding on the date of the Prepayment Offer that is PARI PASSU in right of payment with the Securities and subject to terms and conditions in respect of Asset Sales similar in all material respects to this Section and requiring the Company to make an offer to purchase such Debt at zerosubstantially the same time as the Prepayment Offer.
Appears in 1 contract
Limitation on Asset Sales. The Company will shall not, and will shall not permit any of its Restricted Subsidiaries to, consummate an Asset Sale unless:
(1i) the Company or the applicable Restricted Subsidiary, as the case may be, receives consideration at the time of the such Asset Sale at least equal to the Fair Market Value fair market value of the assets or Equity Interests issued or sold or otherwise disposed of; andof (as determined in good faith by the Company's senior management or, in the case of an Asset Sale in excess of $5.0 million, the Board of Directors of the Company);
(2ii) at least 8575% of the consideration received in the Asset Sale by the Company or the Restricted Subsidiary, as the case may be, from such Restricted Subsidiary is Asset Sale shall be in the form of cash. For purposes (x) cash or Cash Equivalents, (y) properties and assets to be owned by the Company or any of this Section 5.10, each its Restricted Subsidiaries and used in a Permitted Business or (z) Capital Stock in one or more Persons engaged in a Permitted Business that are or thereby become Restricted Subsidiaries of the following will be deemed to be cash:
Company, and, in each case, such consideration is received at the time of such disposition; PROVIDED that the amount of (1a) any liabilities, liabilities (as shown on the Company’s 's or such Restricted Subsidiary's most recent consolidated balance sheet, ) of the Company or any Restricted Subsidiary (other than contingent liabilities and Indebtedness that are (x) by their terms subordinated to the Notes or any Note Guarantee, (y) unsecured, or (z) secured by a Lien on the assets or rights that are the subject of the Asset Sale, which Lien is junior in priority to the Liens securing the Notes or any Note GuaranteeSecurities) that are assumed by the transferee of any such assets pursuant to a customary novation agreement that releases the Company or such Subsidiary from further liability;
assets, and (2b) any securities, notes or other obligations securities 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, cash within 180 days after such Asset Sale (to the extent of the cash received in that conversionreceived) shall be deemed to be cash for the purposes of this provision only; and
(3iii) any stock or assets upon the consummation of the kind referred to in clauses (2) or (4) of the next paragraph of this covenant. Within 365 days after the receipt of any Net Proceeds from an Asset Sale, the Company shall apply, or cause such Restricted Subsidiary to apply, the Net Cash Proceeds relating to such Asset Sale within 390 days of receipt thereof either:
(A) to prepay any Indebtedness under the Credit Agreement or Indebtedness of a Restricted Subsidiary and, in the case of Indebtedness under any revolving credit facility, effect a permanent reduction in the availability under such revolving credit facility (or effect a permanent reduction in availability under such revolving credit facility regardless of the fact that no prepayment is required);
(B) to make an Investment (x) in properties and assets that replace the properties and assets that were the subject of such Asset Sale, (y) in properties and assets that will be used by the Company or a Restricted Subsidiary in a Permitted Business or (z) permitted by clause (1) of the definition of Permitted Investments (collectively, "REPLACEMENT ASSETS"); or
(C) a combination of prepayment and investment permitted by the foregoing clauses (iii)(A) and (iii)(B). Pending the final application of the Net Cash Proceeds, the Company and its Restricted Subsidiaries may temporarily reduce Indebtedness or otherwise invest such Net Cash Proceeds in any manner not prohibited by this Indenture. On the 391st day after an Asset Sale or such earlier date, if any, as the senior management or the Board of Directors of the Company or of such Restricted Subsidiary determines not to apply the Net Cash Proceeds relating to such Asset Sale as set forth in clauses (iii)(A), (iii)(B) and (iii)(C) of the next preceding paragraph (each, a "NET PROCEEDS OFFER TRIGGER DATE"), such aggregate amount of Net Cash Proceeds which have not been applied on or before such Net Proceeds Offer Trigger Date as permitted in clauses (iii)(A), (iii)(B) and (iii)(C) of the next preceding paragraph (each a "NET PROCEEDS OFFER AMOUNT") shall be applied by the Company or such Restricted Subsidiary to make an offer to purchase (the "NET PROCEEDS OFFER") on a date (the "NET PROCEEDS OFFER PAYMENT Date") not less than 30 nor more than 60 days following the applicable Net Proceeds Offer Trigger Date, from all Holders on a pro rata basis, that amount of Securities equal to the Net Proceeds Offer Amount at a price equal to 100% of the Accreted Value of the Securities to be purchased, plus accrued and unpaid interest thereon, if any, to the date of purchase; PROVIDED, HOWEVER, that if the Company is required by the terms of any PARI PASSU Indebtedness of the Company, such Net Proceeds Offer may be made ratably to purchase the Securities and such other Indebtedness of the Company that ranks PARI PASSU with the Securities. If at any time any non-cash consideration received by the Company or any Restricted SubsidiarySubsidiary of the Company, as the case may be) may apply such Net Proceeds:
, in connection with any Asset Sale is converted into or sold or otherwise disposed of for cash (1) to repay Indebtedness and other Obligations under the Working Capital Facility and to correspondingly permanently reduce commitments than interest received with respect thereto;
(2) to acquire all or substantially all of the assets of, or any Capital Stock of, another Permitted Business, if, after giving effect to any such acquisition non-cash consideration), then such conversion or disposition shall be deemed to constitute an Asset Sale hereunder as of Capital Stockthe date of such conversion or disposition and the Net Cash Proceeds thereof shall be applied in accordance with this Section. The Company may defer the Net Proceeds Offer until there is an aggregate unutilized Net Proceeds Offer Amount equal to or in excess of $10.0 million resulting from one or more Asset Sales (at which time, the Permitted Business is or becomes entire unutilized Net Proceeds Offer Amount, and not just the amount in excess of $10.0 million, shall be applied as required pursuant to the second preceding paragraph). In the event of the transfer of substantially all (xbut not all) a Restricted Subsidiary of the property and assets of the Company and its Restricted Subsidiaries as an entirety to a Person in a transaction permitted under Section 5.1, which transaction does not constitute a Change of Control, the successor corporation shall be deemed to have sold the properties and assets of the Company and its Restricted Subsidiaries not so transferred for purposes of this Section, and shall comply with the provisions of clause (yiii) of this Section with respect to such deemed sale as if it were an Asset Sale. In addition, the fair market value of such properties and assets of the Company or its Restricted Subsidiaries deemed to be sold shall be deemed to be Net Cash Proceeds for purposes of this Section 4.17. Notice of each Net Proceeds Offer pursuant to this Section 4.17 shall be mailed or caused to be mailed, by first class mail, by the Company within 25 days following the applicable Net Proceeds Offer Trigger Date to all Holders at their last registered addresses, with a Guarantorcopy to the Trustee. A Net Proceeds Offer shall remain open for a period of 20 Business Days or such longer period as may be required by law. The notice shall contain all instructions and materials necessary to enable such Holders to tender Securities pursuant to the Net Proceeds Offer and shall state the following terms:
(i) that Holders may elect to have their Securities purchased by the Company either in whole or in part (subject to proration as hereinafter described in the -75- event the Net Proceeds Offer is oversubscribed) in integral multiples of $1,000 principal amount at maturity, at the applicable purchase price;
(3ii) that the Net Proceeds Offer is being made pursuant to make capital expenditures this Section 4.17 and that all Securities tendered will be accepted for payment; PROVIDED, HOWEVER, that if the principal amount of Securities tendered in the Net Proceeds Offer exceeds the aggregate amount of the Net Proceeds Offer Amount, the Company shall select the Securities to be purchased on a PRO RATA basis (based on amounts tendered) (with such adjustments as may be deemed appropriate by the Company so that only Securities in denominations of $1,000 principal amount at maturity, or integral multiples thereof, shall be purchased);
(iii) the purchase price (including the amount of accrued interest, if any) and the purchase date (which shall be no earlier than 30 days nor later than 60 days from the Net Proceeds Offer Trigger Date, other than as may be required by applicable law);
(iv) that any Security not tendered will continue to accrete Accreted Value or accrue interest, as the case may be;
(v) that, unless the Company defaults in making payment therefor, any Security accepted for payment pursuant to the Net Proceeds Offer shall cease to accrue interest after the Net Proceeds Offer Payment Date;
(vi) that Holders electing to have a Security purchased pursuant to the Net Proceeds Offer will be required to surrender the Security, with the form entitled "Option of Holder to Elect Purchase" on the reverse of the Security completed, to the Paying Agent at the address specified in the notice prior to the close of business on the Net Proceeds Offer Payment Date;
(vii) that Holders will be entitled to withdraw their election if the Paying Agent receives, not later than the second Business Day prior to the Net Proceeds Offer Payment Date, a facsimile transmission or letter setting forth the name of the Holder, the principal amount of the Security the Holder delivered for purchase and a statement that such Holder is withdrawing his election to have such Security purchased; and
(viii) that Holders whose Securities are purchased only in part will be issued new Securities in a Permitted Business principal amount at maturity equal to the unpurchased portion of the Securities surrendered. On or before the Net Proceeds Offer Payment Date, the Company shall (other i) accept for payment Securities or portions thereof tendered pursuant to the Net Proceeds Offer, (ii) deposit with the Paying Agent U.S. Legal Tender sufficient to pay the purchase price, plus -76- accrued interest, if any, of all Securities to be purchased and (iii) deliver to the Trustee Securities so accepted together with an Officers' Certificate stating the Securities or portions thereof being purchased by the Company. The Paying Agent shall promptly mail to the Holders of Securities so accepted payment in an amount equal to the purchase price, plus accrued interest, if any, thereon set forth in the notice of such Net Proceeds Offer. Any Security not so accepted shall be promptly mailed by the Company to the Holder thereof. For purposes of this Section 4.17, the Trustee shall act as the Paying Agent. Any amounts remaining after the purchase of Securities pursuant to a Net Proceeds Offer shall be returned by the Trustee to the Company. To the extent that the aggregate amount of the Securities tendered pursuant to a Net Proceeds Offer is less than Equity Interests, Indebtedness or current assets); or
(4) to acquire other assets (other than Equity Interests or Indebtedness) that are not classified as current assets under GAAP and that are used or useful in a Permitted Business. Pending the final application of any Net ProceedsProceeds Offer Amount, the Company may temporarily reduce borrowings under the Working Capital Facility or otherwise invest the use such excess Net Proceeds in Offer Amount for general corporate purposes or for any manner that is other purposes not prohibited by this Indenture. Any Upon completion of any such Net Proceeds from Asset Sales that are not applied or invested as provided in the second paragraph of this covenant will constitute “Excess Proceeds.” When the aggregate amount of Excess Proceeds exceeds $5.0 million, the Company will, within five (5) days thereof, make an Asset Sale Offer to all Holders and all holders of other senior secured Indebtedness that is pari passu in right of payment and as to security interests with the Notes with respect to the assets that are the subject of such Asset Sale 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 amount of Notes and such other pari passu Indebtedness that may be purchased out of the Excess Proceeds in accordance with the procedures set forth in Section 3.09 hereof. The offer price for the Notes in any Asset Sale Offer will be equal to 100% of the aggregate principal amount of the Notes, plus accrued and unpaid interest to the date of purchase, and will be payable in cash. If any Excess Proceeds remain after consummation of an Asset Sale Offer, the Company may use those Excess Net Proceeds for any purpose not otherwise prohibited by this Indenture. If the aggregate principal amount of Notes and the amount of other pari passu Indebtedness tendered into such Asset Sale Offer exceeds the amount of Excess Proceeds, the Trustee Amount shall select the Notes and such other pari passu Indebtedness to be purchased on a pro rata basis. Upon completion of each Asset Sale Offer, the amount of Excess Proceeds will be reset at zero. The Company will comply with the requirements of Rule 14e-1 under the Exchange Act and any other securities laws and regulations thereunder to the extent such laws and regulations are applicable in connection with the repurchase of Securities pursuant to a Net Proceeds Offer. To the extent that the provisions of any securities laws or regulations conflict with the provisions of this Section 4.17, the Company shall comply with the applicable securities laws and regulations and shall not be deemed to have breached its obligations under this Section 4.17 by virtue thereof. The provisions of this Section and other provisions contained in this Indenture relating to the Company's obligation to make a Net Proceeds Offer may be waived or modified with the written consent of the Holders of a majority in principal amount at maturity of the Securities.
Appears in 1 contract
Samples: Indenture (Salt Holdings Corp)
Limitation on Asset Sales. (a) The Company will not, and will not permit any of its Restricted Subsidiaries to, consummate an Asset Sale unless:
(1) the Company or the applicable Restricted Subsidiary, as the case may be, receives consideration at the time of the such Asset Sale at least equal to the Fair Market Value fair market value of the assets or Equity Interests issued or sold or otherwise disposed of; andof (as determined in good faith by the Company’s Board of Directors);
(2) at least 8575% of the consideration received in the Asset Sale by the Company or the Restricted Subsidiary, as the case may be, from such Restricted Subsidiary is Asset Sale shall be in the form of cash. For purposes cash and/or Cash Equivalents and is received at the time of this Section 5.10, each such disposition; provided that the amount of the following will be deemed to be cash:
any liabilities (1) any liabilities, as shown on the Company’s or such Restricted Subsidiary’s most recent consolidated balance sheet, ) of the Company or any such Restricted Subsidiary (other than contingent liabilities and Indebtedness that are (x) by their terms subordinated to the Notes or any Note Guarantee, (y) unsecured, or (z) secured by Guarantee of a Lien on the assets or rights that are the subject of the Asset Sale, which Lien is junior in priority to the Liens securing the Notes or any Note GuaranteeGuarantor) that are assumed by the transferee of any such assets pursuant shall be deemed to a customary novation agreement that releases the Company or such Subsidiary from further liability;
(2) 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, to the extent be cash for purposes of the cash received in that conversionthis provision; and
(3) any stock or assets upon the consummation of the kind referred to in clauses (2) or (4) of the next paragraph of this covenant. Within 365 days after the receipt of any Net Proceeds from an Asset Sale, the Company (shall apply, or cause such Restricted Subsidiary to apply, the applicable Restricted Subsidiary, as the case may be) may apply Net Cash Proceeds relating to such Net ProceedsAsset Sale within 365 days of receipt thereof either:
(1a) to repay Indebtedness and other Obligations under the Working Capital Facility and to correspondingly permanently reduce commitments with respect thereto;
(2i) to acquire all or substantially all Senior Debt of the Company or a Guarantor, (ii) any other Indebtedness which is secured by a Lien on the assets of, which are the subject of such Asset Sale or any Capital Stock of, another Permitted Business, if, after giving effect to any such acquisition (iii) in the case of Capital Stock, the Permitted Business is or becomes (x) a Restricted Subsidiary of the Company and (y) which is not a Guarantor, any other Indebtedness of such Restricted Subsidiary or its Subsidiaries;
(3b) to make capital expenditures an investment in a Permitted Business properties and assets that replace the properties and assets that were the subject of such Asset Sale or in properties and assets (other than Equity Interestsincluding Capital Stock) that will be used in the business of the Company and its Restricted Subsidiaries as existing on the Issue Date or in businesses similar, Indebtedness ancillary, complementary or current assetsreasonably related thereto (“Replacement Assets”); orand/or
(4c) a combination of prepayment and investment permitted by the foregoing clauses (3)(a) and (3)(b); provided however, that the requirements of Section 4.6(a)(3) will not apply to acquire other assets sales by the Company or any of its Restricted Subsidiaries of any of the Excluded Assets.
(other than Equity Interests or Indebtednessb) that are not classified as current assets under GAAP and that are used or useful in a Permitted Business. Pending the final application of any such Net Cash Proceeds, the Company may temporarily reduce borrowings under the Working Capital Facility Credit Agreement or otherwise invest any other revolving credit facility. On the 365th day after an Asset Sale or such earlier date, if any, as the Board of Directors of the Company or of such Restricted Subsidiary determines not to apply the Net Cash Proceeds relating to such Asset Sale as set forth in any manner that is not prohibited by this Indenture. Any Section 4.6(a)(3)(a), (b) and (c) (each a “Net Proceeds from Asset Sales that are not applied or invested as provided in the second paragraph of this covenant will constitute “Excess Proceeds.” When the Offer Trigger Date”), such aggregate amount of Excess Net Cash Proceeds exceeds $5.0 millionwhich have not been applied on or before such Net Proceeds Offer Trigger Date as permitted in clauses Section 4.6(a)(3)(a), (b) and (c) of the preceding paragraph (each a “Net Proceeds Offer Amount”) shall be applied by the Company will, within five (5) days thereof, or such Restricted Subsidiary to make an Asset Sale offer to purchase (the “Net Proceeds Offer”) on a date (the “Net Proceeds Offer to all Holders and Payment Date”) not less than 30 nor more than 60 days following the applicable Net Proceeds Offer Trigger Date, from all holders of other senior secured Indebtedness that is pari passu in right of payment and as to security interests with the Notes with respect and any Pari Passu Indebtedness (to the assets that are extent the subject terms of such Asset Sale 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 Pari Passu Indebtedness so require) on a pro rata basis, that amount of Notes and such other pari passu Pari Passu Indebtedness that may be purchased out of equal to the Excess Net Proceeds in accordance with the procedures set forth in Section 3.09 hereof. The offer Offer Amount at a price for the Notes in any Asset Sale Offer will be equal to 100% of the aggregate principal amount of the NotesNotes and Pari Passu Indebtedness to be purchased, plus accrued and unpaid interest thereon, if any, to the date of purchase; provided however, that if at any time any non-cash consideration received by the Company or any Restricted Subsidiary of the Company, as the case may be, in connection with any Asset Sale is converted into or sold or otherwise disposed of for cash (other than interest received with respect to any such non-cash consideration), then such conversion or disposition shall be deemed to constitute an Asset Sale hereunder and the Net Cash Proceeds thereof shall be applied in accordance with this covenant.
(c) The Company may defer the Net Proceeds Offer until there is an aggregate unutilized Net Proceeds Offer Amount equal to or in excess of €10.0 million resulting from one or more Asset Sales (at which time, the entire unutilized Net Proceeds Offer Amount, and not just the amount in excess of €10.0 million, shall be applied as required pursuant to this paragraph).
(d) In the event of the transfer of substantially all (but not all) of the property and assets of the Company and its Restricted Subsidiaries as an entirety to a Person in a transaction permitted under Section 5.1, which transaction does not constitute a Change of Control, the successor corporation shall be deemed to have sold the properties and assets of the Company and its Restricted Subsidiaries not so transferred for purposes of this covenant, and shall comply with the provisions of this covenant with respect to such deemed sale as if it were an Asset Sale. In addition, the fair market value of such properties and assets of the Company or its Restricted Subsidiaries deemed to be sold shall be deemed to be Net Cash Proceeds for purposes of this covenant.
(e) Each Net Proceeds Offer will be payable mailed to the Holders within 25 days following the Net Proceeds Offer Trigger Date, with a copy to the Trustee. Upon receiving notice of the Net Proceeds Offer, Holders may elect to tender their Notes in whole or in part in integral multiples of €1,000 in exchange for cash. To the extent Holders properly tender Notes and holders of Pari Passu Indebtedness properly tender Pari Passu Indebtedness in an aggregate amount exceeding the Net Proceeds Offer Amount, the tendered Notes and Pari Passu Indebtedness will be purchased on a pro rata basis (based on amounts tendered). A Net Proceeds Offer shall remain open for a period of 20 business days or such longer period as may be required by law. If any Excess Net Cash Proceeds remain after the consummation of an Asset Sale any Net Proceeds Offer, the Company may use those Excess Net Cash Proceeds for any purpose not otherwise prohibited by this Indenture. If the aggregate principal amount of Notes and the amount of other pari passu Indebtedness tendered into such Asset Sale Offer exceeds the amount of Excess Proceeds, the Trustee shall select the Notes and such other pari passu Indebtedness to be purchased on a pro rata basis. Upon completion of each Asset Sale Net Proceeds Offer, the amount of Excess Net Cash Proceeds will be reset at zero.
(f) The Company will comply with the requirements of any securities laws and regulations thereunder to the extent such laws and regulations are applicable in connection with the repurchase of Notes pursuant to a Net Proceeds Offer. To the extent that the provisions of any securities laws or regulations conflict with the “Asset Sale” provisions of this Section 4.6, the Company shall comply with the applicable securities laws and regulations and shall not be deemed to have breached its obligations under the “Asset Sale” provisions of this this Section 4.6 by virtue thereof.
Appears in 1 contract
Limitation on Asset Sales. (a) The Company will not, and will not permit any of its Restricted Subsidiaries to, consummate an Asset Sale unless:
(1) the The Company (or the Restricted Subsidiary, as the case may be, ) receives consideration at the time of the such Asset Sale at least equal to the Fair Market Value fair market value of the assets or Equity Interests issued or sold or otherwise disposed of; and
(2) at least 8575% of the consideration therefore received in the Asset Sale by the Company or such Restricted Subsidiary is in the form of cashCash Equivalents or Replacement Assets. For purposes of this Section 5.10clause, each of the following will shall be deemed to be cashCash Equivalents:
(1A) any liabilities, liabilities (as shown on the Company’s or such Restricted Subsidiary’s most recent consolidated balance sheet, ) of the Company or any Restricted Subsidiary (other than contingent liabilities and liabilities, Indebtedness that are (x) is by their its terms subordinated to the Notes or any Note Guarantee, (y) unsecured, Guarantee and liabilities to the extent owed to the Company or (z) secured by a Lien on the assets or rights that are the subject any Affiliate of the Asset Sale, which Lien is junior in priority to the Liens securing the Notes or any Note GuaranteeCompany) that are assumed by the transferee of any such assets pursuant and with respect to a customary novation agreement that releases which the Company or such Subsidiary and its Restricted Subsidiaries are unconditionally released from further liabilityliability in writing or that are otherwise cancelled or terminated in connection with the transaction with such transferee;
(2B) any securities, notes or other obligations or assets 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, cash (to the extent of the cash received in that conversion) within 360 days of the applicable Asset Sale; and
(3C) any stock Designated Non-cash Consideration received by the Company or assets any of its Restricted Subsidiaries in such Asset Sale having an aggregate fair market value, taken together with all other Designated Non-cash Consideration received pursuant to this clause (C) that is at that time outstanding, not to exceed the greater of $20.0 million or 2.0% of Consolidated Cash Flow at the time of the kind referred receipt of such Designated Non-cash Consideration (with the fair market value of each item of Designated Non-cash Consideration being measured at the time received and without giving effect to subsequent changes in clauses value). If at any time any non-cash consideration received by the Company or any Restricted Subsidiary, as the case may be, in connection with any Asset Sale is repaid or converted into or sold or otherwise disposed of for cash (2other than interest received with respect to any such non-cash consideration), then the date of such repayment, conversion or disposition shall be deemed to constitute the date of an Asset Sale hereunder and the Net Proceeds thereof shall be applied in accordance with this Section 4.12.
(b) or (4) of the next paragraph of this covenant. Within 365 days after the receipt of any Net Proceeds from an Asset Sale, the Company (or the applicable Restricted Subsidiary, as the case may be) may apply such Net ProceedsProceeds at its option:
(1) to repay secured Indebtedness and other Obligations or Indebtedness of a non- Guarantor Restricted Subsidiary owed to a Person that is not an Affiliate of the Company and, except in the case of Indebtedness under the Working Capital Facility and Credit Agreement, if the Indebtedness repaid is revolving credit Indebtedness, to correspondingly permanently reduce commitments with respect thereto;
(2) to acquire all prepay, repay or substantially all of the assets of, or repurchase any Capital Stock of, another Permitted Business, if, after giving effect to any such acquisition of Capital Stock, the Permitted Business is or becomes (x) a Restricted Subsidiary Indebtedness of the Company and (y) or any of its Restricted Subsidiaries which is not expressly subordinated to the prior payment in full in cash of all Obligations with respect to the Notes, in the case of the Company, or the Note Guarantee, in the case of a Guarantor;; or
(3) to purchase Replacement Assets or make a capital expenditures expenditure in a Permitted Business (other than Equity Interests, Indebtedness or current assets); or
(4) to acquire other assets (other than Equity Interests or Indebtedness) that are not classified as current assets under GAAP and that are is used or useful in a Permitted Business; provided that, if during the 365 day period following the consummation of an Asset Sale, the Company or a Restricted Subsidiary enters into a definitive binding agreement committing it to apply the Net Proceeds in accordance with the requirements of this clause (3) after such 365 day period, such 365 day period will be extended with respect to the amount of Net Proceeds so committed until such Net Proceeds are required to be applied in accordance with such agreement (but such extension will in no event be for a period longer than 180 days) or, if earlier, the date of termination of such agreement; provided, further, that in the event such binding commitment is later canceled or terminated for any reason before such Net Proceeds are so applied, then such Net Proceeds shall constitute Excess Proceeds unless the Company or such Restricted Subsidiary enters into another binding commitment (a “Second Commitment”) within six months of such cancellation or termination of the prior binding commitment; provided, further, that the Company or such Restricted Subsidiary may only enter into a Second Commitment under the foregoing provision one time with respect to each Asset Sale and to the extent such Second Commitment is later cancelled or terminated for any reason before such Net Proceeds are applied or are not applied within 180 days of such Second Commitment, then such Net Proceeds shall constitute Excess Proceeds. Following the entering into of a binding agreement with respect to an Asset Sale and prior to the consummation thereof, Cash Equivalents (whether or not actual Net Proceeds of such Asset Sale) used for the purposes described in clause (3) that are designated as used in accordance with clause (3), and not previously or subsequently so designated in respect of any other Asset Sale, shall be deemed to be Net Proceeds applied in accordance with clause (3).
(c) Pending the final application of any such Net Proceeds, the Company may temporarily reduce revolving credit borrowings under the Working Capital Facility or otherwise invest the such Net Proceeds in any manner that is not prohibited by this Indenture. .
(d) Any Net Proceeds from Asset Sales that are not applied or invested as provided in the second paragraph clause (1), (2) or (3) of this covenant Section 4.12(b) will constitute “Excess Proceeds.” When Within 30 days after the aggregate amount of Excess Proceeds exceeds $5.0 50.0 million, the Company will, within five (5) days thereof, will make an Asset Sale Offer (using the procedures set forth in Section 3.05) to all Holders Noteholders and all holders of other senior secured Indebtedness that is pari passu in right of payment and as to security interests with the Notes with respect to the assets that are the subject of such Asset Sale or any Note Guarantee 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 assets, to purchase the maximum principal amount of the Notes and such other pari passu Indebtedness that may be purchased out of the Excess Proceeds. The Company and its Restricted Subsidiaries may make an Asset Sale Offer under this section using Net Proceeds prior to the time any such Net Proceeds become Excess Proceeds, in accordance with which case such Net Proceeds shall be deemed to have been applied within the procedures set forth in time frame required by this Section 3.09 hereof4.12. The offer price for the Notes in any Asset Sale Offer will be equal to 100% of the aggregate principal amount of the Notes, Notes and such other pari passu Indebtedness plus accrued and unpaid interest to the date of purchase, and will be payable in cash. If any Excess Proceeds remain after consummation of an Asset Sale Offer, the Company may use those such Excess Proceeds for any purpose not otherwise prohibited by this Indenture. If the aggregate principal amount of the Notes and the amount of such other pari passu Indebtedness tendered into such Asset Sale Offer exceeds the amount of Excess Proceeds, the Trustee Notes and such other pari passu Indebtedness shall select be purchased on a pro rata basis based on the principal amount of the Notes and such other pari passu Indebtedness to be purchased on a pro rata basistendered. Upon completion of each Asset Sale Offer, the amount of Excess Proceeds will shall be reset at zero.
Appears in 1 contract
Samples: Indenture (SB/RH Holdings, LLC)
Limitation on Asset Sales. (a) The Company will shall not, and will shall not permit any of its Restricted Subsidiaries Subsidiary to, directly or indirectly, consummate an any Asset Sale unless:
(1i) the Company or such Restricted Subsidiary receives consideration, including the Restricted Subsidiaryrelief of liabilities, as the case may be, receives consideration at the time of the such Asset Sale at least equal to the Fair Market Value of the assets or Equity Interests issued or sold or otherwise disposed ofProperty subject to such Asset Sale; and
(2ii) except in the case of a Permitted Asset Swap, at least 8575% of the consideration received in the Asset Sale by paid to the Company or such Restricted Subsidiary in connection with such Asset Sale is in the form of cashcash or Temporary Cash Investments. For Solely for the purposes of clause (a)(ii) of this Section 5.104.12, each of the following will be deemed to be cash:
(1A) any liabilities, as shown on the Company’s most recent consolidated balance sheet, assumption by the purchaser of liabilities of the Company or any Restricted Subsidiary (other than contingent liabilities and Indebtedness or liabilities that are (x) by their terms subordinated to the Notes or any Note Guarantee, (y) unsecured, or (z) secured by a Lien on the assets or rights that are the subject of the Asset Sale, which Lien is junior in priority to the Liens securing the Notes or any Note applicable Subsidiary Guarantee) that are assumed by the transferee as a result of any such assets pursuant to a customary novation agreement that releases which the Company or and the Restricted Subsidiaries are no longer obligated with respect to such Subsidiary from further liabilityliabilities;
(2B) any securities, notes or other obligations received by the Company or any such Restricted Subsidiary from such transferee that Purchaser to the extent they are contemporaneously, subject to ordinary settlement periods, promptly converted or monetized by the Company or such Restricted Subsidiary into cash, cash (to the extent of the cash received in that conversionreceived) or by their terms mature or are otherwise to be converted into cash within 180 days; and
(3C) any stock Designated Noncash Consideration the Fair Market Value of which, when taken together with all other Designated Noncash Consideration received pursuant to this clause (C) (and not subsequently converted into cash or assets Temporary Cash Investments that are treated as Net Available Cash), does not exceed the greater of the kind referred to in clauses (1) $150.0 million and (2) or (4) 5.0% of the next paragraph Consolidated Net Tangible Assets at the time of this covenant. Within 365 days after 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.
(b) The Net Available Cash (or any Net Proceeds portion thereof) from an Asset Sale, Sales may be applied by the Company (or the applicable a Restricted Subsidiary, as to the case may beextent the Company or such Restricted Subsidiary elects (or is required by the terms of any Debt) may apply such Net Proceedsto any of the following uses:
(1i) to repay Indebtedness and other Obligations Repay
(A) Debt of the Company or any Restricted Subsidiary that is secured by the Property subject to such Asset Sale (excluding any Debt owed to the Company or an Affiliate of the Company) and/or
(B) Debt under the Working Capital Facility and to correspondingly permanently reduce commitments with respect thereto;Credit Facility; or
(2ii) to acquire all invest or substantially all reinvest in Additional Assets (including by means of the assets of, or any Capital Stock of, another Permitted Business, if, after giving effect to any such acquisition of Capital Stock, the Permitted Business is or becomes (x) an Investment in Additional Assets by a Restricted Subsidiary of with Net Available Cash received by the Company and (y) a Guarantor;or another Restricted Subsidiary); or
(3iii) to make capital expenditures to improve existing assets. Notwithstanding the foregoing, (i) any investment in a Permitted Business Additional Assets within 180 days prior to an Asset Sale, shall be deemed to satisfy clause (other than Equity Interests, Indebtedness or current assets); orb)(ii) above with respect to any such Asset Sale and (ii) any capital expenditure made to improve existing assets within 180 days of an Asset Sale shall be deemed to satisfy clause (b)(iii) above with respect to any Asset Sale.
(4c) Any Net Available Cash from an Asset Sale not applied in accordance with clause (b) of this Section 4.12 within 450 days from the date of the receipt of such Net Available Cash, or such shorter period which the Company determines or that is not segregated from the general funds of the Company for investment in identified Additional Assets in respect of a project that shall have been commenced, and for which binding contractual commitments have been entered into, prior to acquire other assets (other than Equity Interests or Indebtedness) that are not classified as current assets under GAAP the end of such 450-day period and that are used shall not have been completed or useful in a Permitted Business. Pending abandoned shall constitute “Excess Proceeds”; provided, however, that the final application amount of any Net Available Cash that ceases to be so segregated as contemplated above and any Net Available Cash that is segregated in respect of a project that is abandoned or completed shall also constitute “Excess Proceeds” at the time any such Net Available Cash ceases to be so segregated or at the time the relevant project is so abandoned or completed, as applicable; provided further, however, that the Company may temporarily reduce borrowings under the Working Capital Facility or otherwise invest the amount of any Net Proceeds in any manner Available Cash that continues to be segregated for investment and that is not prohibited by this Indenture. Any actually reinvested within 450 days from the date of the receipt of such Net Proceeds from Asset Sales that are not applied or invested as provided in the second paragraph of this covenant will Available Cash shall also constitute “Excess Proceeds.” ”
(d) When the aggregate amount of Excess Proceeds exceeds $5.0 million150.0 million (not taking into account income earned on such Excess Proceeds, if any), the Company will, within five (5) days thereof, will be required to make an Asset Sale Offer to all Holders and all holders of other senior secured Indebtedness that is pari passu Offer, which offer shall be in right of payment and as to security interests with the Notes with respect to the assets that are the subject of such Asset Sale 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 amount of Notes and such other pari passu Indebtedness that may be purchased out of the Allocable Excess Proceeds in accordance with the procedures set forth in Section 3.09 hereof. The offer (as defined below), on a pro rata basis, according to principal amount, at a purchase price for the Notes in any Asset Sale Offer will be equal to 100% of the aggregate principal amount of the Notesthereof, plus accrued and unpaid interest to the purchase date (subject to the right of purchase, and will be payable in cash. If any Excess Proceeds remain after consummation Holders of an Asset Sale Offer, record on the Company may use those Excess Proceeds for any purpose not otherwise prohibited by this Indenture. If relevant record date to receive interest due on the aggregate principal amount of Notes and the amount of other pari passu Indebtedness tendered into such Asset Sale Offer exceeds the amount of Excess Proceeds, the Trustee shall select the Notes and such other pari passu Indebtedness to be purchased on a pro rata basis. Upon completion of each Asset Sale Offer, the amount of Excess Proceeds will be reset at zero.relevant interest payment
Appears in 1 contract
Samples: Indenture (Cascades Inc)
Limitation on Asset Sales. (a) The Company will not, and will not permit any of its Restricted Subsidiaries to, consummate an Asset Sale unless:
(1) the Company (or the a Restricted Subsidiary, as the case may be, ) receives consideration at the time of the Asset Sale at least equal to the Fair Market Value fair market value of the assets or Equity Interests issued or sold or otherwise disposed of; and
(2) at least 8550% of the aggregate consideration received by the Company and its Restricted Subsidiaries in the Asset Sale by and all other Asset Sales since the Company or such Restricted Subsidiary Prior Issue Date is in the form of cashcash or Cash Equivalents. For purposes of this Section 5.10provision, each of the following will be deemed to be cash:
(1a) any liabilities, as shown on the Company’s or such Restricted Subsidiary’s most recent consolidated balance sheet, of the Company or any Subsidiary (other than contingent liabilities and Indebtedness liabilities that are (x) by their terms subordinated to the Notes or any Note Guarantee, (y) unsecured, or (z) secured by a Lien on the assets or rights that are the subject of the Asset Sale, which Lien is junior in priority to the Liens securing the Notes or any Note Subsidiary Guarantee) that are assumed by the transferee of any such assets pursuant to a customary novation an agreement that releases the Company or such Subsidiary from further liability;liability therefor; and
(2b) any securities, notes or other obligations received by the Company or any such Restricted Subsidiary from such transferee that are contemporaneouslyare, subject to ordinary settlement periodswithin 90 days after the Asset Sale, converted by the Company or such Restricted Subsidiary into cash, to the extent of the cash received in that conversion; and.
(3b) any stock or assets of the kind referred to in clauses (2) or (4) of the next paragraph of this covenant. Within 365 360 days after the receipt of any Net Proceeds from an Asset Sale, the Company (or the applicable any Restricted Subsidiary, as the case may be) Subsidiary may apply such those Net ProceedsProceeds at its option to any combination of the following:
(1) to repay Indebtedness and other Obligations under repay, redeem, or repurchase Senior Debt, including the Working Capital Facility and to correspondingly permanently reduce commitments with respect theretoNotes;
(2) to acquire all or substantially all of the properties or assets of, or any Capital Stock of, another of a Person primarily engaged in a Permitted Business, if, after giving effect to any such acquisition of Capital Stock, the Permitted Business is or becomes (x) a Restricted Subsidiary of the Company and (y) a Guarantor;
(3) to make capital expenditures in acquire a majority of the Voting Stock of a Person primarily engaged a Permitted Business (other than Equity Interests, Indebtedness or current assets); orBusiness;
(4) to make capital expenditures; or
(5) to acquire other long-term assets (other than Equity Interests or Indebtedness) that are not classified as current assets under GAAP and that are used or useful in a Permitted Business. The provisions of clauses (2), (3), (4) or (5) of this Section 5.10(b) shall be deemed to be satisfied if a bona fide binding contract committing to make the acquisition or expenditure referred to therein is entered into by the Company or any of its Restricted Subsidiaries within the time period specified in the preceding paragraph and such Net Proceeds are subsequently applied in accordance with such contract within six months following the date such agreement is entered into. Pending the final application of any Net Proceeds, the Company or any Restricted Subsidiary may temporarily reduce borrowings under the Working Capital Facility or otherwise invest the Net Proceeds in any manner that is not prohibited by this Indenture. .
(c) Any Net Proceeds from Asset Sales that are not applied or invested as provided in the second paragraph of this covenant preceding paragraphs will constitute “Excess Proceeds.” When Within 10 days after each time the aggregate amount of Excess Proceeds exceeds $5.0 75.0 million, the Company will, within five (5) days thereof, will make an Asset Sale Offer to all Holders of Notes, and to all holders of other senior secured Pari Passu Indebtedness that is pari passu in right of payment and as to security interests with the Notes with respect to the assets that are the subject of such Asset Sale 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 then outstanding, to purchase the maximum principal amount of Notes and such other pari passu Pari Passu Indebtedness that may be purchased out of the Excess Proceeds in accordance with the procedures set forth in Section 3.09 hereofProceeds. The offer price for the Notes in any Asset Sale Offer will be equal to 100% of the aggregate principal amount of the Notes, plus accrued and unpaid interest interest, if any, to the Settlement Date, subject to the right of Holders of record on the relevant record date of purchaseto receive interest due on an interest payment date that is on or prior to the Settlement Date, and will be payable in cash. If any Excess Proceeds remain after consummation of an Asset Sale Offer, the Company or any Restricted Subsidiary may use those Excess Proceeds for any purpose not otherwise prohibited by this Indenture. If the aggregate principal amount of Notes and the amount of other pari passu Pari Passu Indebtedness tendered into such Asset Sale Offer exceeds the amount of Excess Proceeds, the Trustee shall will select the Notes and such other pari passu Pari Passu Indebtedness 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 successor may require). Upon completion of each Asset Sale Offer, the amount of Excess Proceeds will be reset at zero.
(d) The Company will comply with the requirements of Rule 14e-1 under the Exchange Act and any other securities laws and regulations thereunder to the extent those laws and regulations are applicable in connection with each repurchase of Notes pursuant to an Asset Sale Offer. To the extent that the provisions of any securities laws or regulations conflict with the provisions of this Section 5.10, the Company will comply with the applicable securities laws and regulations and will not be deemed to have breached its obligations under such provisions by virtue of such conflict.
Appears in 1 contract
Samples: Third Supplemental Indenture (Access Midstream Partners Lp)
Limitation on Asset Sales. (a) The Company will shall not, and will shall not permit any of its Restricted Subsidiaries Subsidiary to, directly or indirectly, consummate an any Asset Sale unless:
(1i) the Company or the Restricted Subsidiary, as the case may be, Subsidiary receives consideration at the time of the Asset Sale at least equal to the Fair Market Value of the assets or Equity Interests issued or sold or otherwise disposed of; andProperty subject to such Asset Sale;
(2ii) at least 8575% of the consideration received in the Asset Sale by paid to the Company or such the Restricted Subsidiary in connection with such Asset Sale is in the form of cash. For purposes cash or Cash Equivalents or the assumption by the purchaser of this Section 5.10, each of the following will be deemed to be cash:
(1) any liabilities, as shown on the Company’s most recent consolidated balance sheet, liabilities of the Company or any Restricted Subsidiary (other than contingent liabilities and Indebtedness that are (x) by their terms subordinated to the Notes or any Note Guarantee, Notes) as a result of which the Company and the Restricted Subsidiaries are no longer obligated with respect to such liabilities; and
(yiii) unsecured, or (z) secured by a Lien on the assets or rights that are the subject of the Asset Sale, which Lien is junior in priority Company delivers an Officers’ Certificate to the Liens securing Trustee certifying that such Asset Sale complies with the Notes or any Note Guaranteeforegoing clauses (i) that are assumed by and (ii). For the transferee purposes of any such assets pursuant to a customary novation agreement that releases the Company or such Subsidiary from further liability;this Section 4.07:
(21) any securities, notes securities or other obligations assets received by the Company or any such Restricted Subsidiary from such the transferee that are contemporaneously, subject to ordinary settlement periods, converted by the Company or such Restricted Subsidiary into cash, cash within 180 days after the closing of such Asset Sale shall be considered to be cash to the extent of the cash received in that conversion;
(2) any cash consideration paid to the Company or the Restricted Subsidiary in connection with the Asset Sale that is held in escrow or on deposit to support indemnification, adjustment of purchase price or similar obligations in respect of such Asset Sale shall be considered to be cash;
(3) Productive Assets received by the Company or any Restricted Subsidiary in connection with the Asset Sale shall be considered to be cash;
(4) the requirement that at least 75% of the consideration paid to the Company or the Restricted Subsidiary in connection with the Asset Sale be in the form of cash or Cash Equivalents or assumed liabilities shall also be considered satisfied if the cash or Cash Equivalents received constitutes at least 75% of the consideration received by the Company or the Restricted Subsidiary in connection with such Asset Sale, determined on an after-tax basis; and
(35) any stock Designated Non-Cash Consideration received by the Company or assets any Restricted Subsidiary in connection with the Asset Sale having an aggregate Fair Market Value, taken together with all other Designated Non-Cash Consideration received in respect of Asset Sales that is at that time outstanding not to exceed the kind referred to in clauses greater of (2x) $35.0 million or (4y) 3.0% of the next paragraph of this covenant. Within 365 days after the receipt of Consolidated Net Tangible Assets shall be considered to be cash.
(b) The Net Available Cash (or any Net Proceeds portion thereof) from an Asset Sale, Sales may be applied by the Company (or the applicable a Restricted Subsidiary, as to the case may be) may apply extent the Company or such Net Proceeds:Restricted Subsidiary elects (or is required by the terms of any Debt):
(1i) to repay Indebtedness Repay secured Debt of the Issuer or a Guarantor (and other Obligations under if the Working Capital Facility and secured Debt being repaid is revolving credit Debt, to correspondingly permanently reduce commitments with respect thereto), or any Debt of a non-Guarantor Restricted Subsidiary (excluding, in any such case, any Debt that is owed to the Company or an Affiliate of the Company);
(2ii) to acquire all or substantially all Repay other Debt of the assets of, Company or any Capital Stock of, another Permitted Business, if, after giving effect to any such acquisition of Capital Stock, the Permitted Business is or becomes (x) a Restricted Subsidiary of the Company and (y) a Guarantor;
(3) to make capital expenditures in a Permitted Business (other than Equity InterestsSubordinated Obligations and Debt owed to the Company or an Affiliate of the Company) so long as the Company shall equally and ratably reduce obligations under the Notes (i) on a pro rata basis pursuant to Section 3.07, Indebtedness (ii) through open-market purchases (to the extent such purchases are at or current assets)above 100% of the principal amount thereof) or (iii) by making an offer (in accordance with the procedures set forth below for a Prepayment Offer) to all Holders to purchase their Notes at 100% of the principal amount thereof, plus the amount of accrued but unpaid interest, if any, on the amount of Notes that would otherwise be prepaid; or
(4iii) to acquire other assets reinvest in Additional Assets (other than Equity Interests or Indebtedness) that are not classified as current assets under GAAP and that are used or useful including by means of an Investment in Additional Assets by a Permitted Business. Pending the final application of any Restricted Subsidiary with Net Proceeds, Available Cash received by the Company may temporarily reduce borrowings under the Working Capital Facility or otherwise invest another Restricted Subsidiary), provided, however, that the Net Proceeds in Available Cash (or any manner that is not prohibited by this Indenture. Any Net Proceeds portion thereof) from Asset Sales that are from the Company to any Subsidiary must be reinvested in Additional Assets of the Company.
(c) Any Net Available Cash from an Asset Sale not applied in accordance with the preceding paragraph within 365 days from the date of the receipt of such Net Available Cash or invested as provided in that the second paragraph of this covenant will Company earlier elects to so designate shall constitute “Excess Proceeds.,” provided, however, that a binding commitment to reinvest in Additional Assets pursuant to clause (b)(iii) of this Section 4.07 shall be treated as a permitted application of the Net Available Cash from the date of such commitment; provided that (i) such reinvestment is consummated within 180 days of the end of the 365 day period referred to in this sentence, and (ii) if such reinvestment is not consummated within the period set forth in subclause (i) or such binding commitment is terminated, the Net Available Cash not so applied will be deemed to be Excess Proceeds. When the aggregate amount of Excess Proceeds not previously subject to a Prepayment Offer (as defined below) exceeds $5.0 million35.0 million (taking into account income earned on those Excess Proceeds, if any), the Company will, within five (5) days thereof, will be required to make an Asset Sale Offer to all Holders and all holders of other senior secured Indebtedness that is pari passu in right of payment and as to security interests with the Notes with respect to the assets that are the subject of such Asset Sale containing provisions similar to those set forth in this Indenture with respect to offers offer to purchase or redeem with (the proceeds of sales of assets to purchase “Prepayment Offer”) the maximum Notes, which offer shall be in the amount of Notes and such other pari passu Indebtedness that may be purchased out of the Allocable Excess Proceeds in accordance with the procedures set forth in Section 3.09 hereof. The offer Proceeds, on a pro rata basis according to principal amount, at a purchase price for the Notes in any Asset Sale Offer will be equal to 100% of the aggregate principal amount of the Notesthereof, plus accrued and unpaid interest interest, if any, to the purchase date (subject to the right of purchaseHolders of record on the relevant record date to receive interest due on the relevant interest payment date), in accordance with the procedures (including prorating in the event of oversubscription) set forth in this Indenture. To the extent that any portion of the amount of Net Available Cash remains after compliance with the preceding sentence and will be payable provided that all Holders of Notes have been given the opportunity to tender their Notes for purchase in cash. If any Excess Proceeds remain after consummation of an Asset Sale Offeraccordance with this Indenture, the Company or such Restricted Subsidiary may use those Excess Proceeds the remaining amount for any purpose not otherwise prohibited permitted by this Indenture. If the aggregate principal amount of Notes Indenture and the amount of other pari passu Indebtedness tendered into such Asset Sale Offer exceeds the amount of Excess Proceeds, the Trustee shall select the Notes and such other pari passu Indebtedness to be purchased on a pro rata basis. Upon completion of each Asset Sale Offer, the amount of Excess Proceeds will be reset at to zero.
Appears in 1 contract
Samples: Indenture (Energizer Holdings, Inc.)
Limitation on Asset Sales. (a) The Company will shall not, and will shall not permit any of its Restricted Subsidiaries to, directly or indirectly, consummate an Asset Sale unless:
(1i) the Company (or the Restricted such Subsidiary, as the case may be, ) receives consideration at the time of the Asset Sale at least equal to the Fair Market Value Value, as determined by the Board of Directors, of the assets or Equity Interests issued or sold or otherwise disposed ofthe Capital Stock subject to such Asset Sale; and
(2ii) at least 8575% of the consideration received in the Asset Sale by the Company or such Restricted Subsidiary is in the form of cash. For cash or Cash Equivalents; provided that for purposes of this Section 5.10clause (ii), each of the following will shall be deemed to be cash:
(1) any liabilities, as shown on the Company’s most recent consolidated balance sheet, of sheet (including the footnotes) available for the Company or any Subsidiary and its Subsidiaries (other than contingent liabilities and Indebtedness liabilities that are (x) by their terms subordinated to the Notes Securities or any Note Guarantee, (y) unsecured, or (z) secured by a Lien on the assets or rights that are the subject of the Asset Sale, which Lien is junior in priority to the Liens securing the Notes or any Note Subsidiary Guarantee) that are assumed by the transferee of any such assets pursuant to a customary novation agreement that releases and from which the Company or and its Subsidiaries are unconditionally released in writing by all creditors with respect to such Subsidiary from further liabilityliabilities;
(2) any securities, notes or other obligations obligations, instruments, or assets received by the Company or any such Restricted Subsidiary from such transferee that are contemporaneously, subject to ordinary settlement periods, converted within 180 days after receipt thereof by the Company or such Restricted Subsidiary into cashcash or Cash Equivalents, to the extent of the cash or Cash Equivalents received in that conversion; and
(3) any stock Designated Non-Cash Consideration received by the Company or assets such Subsidiary in such Asset Sale having an aggregate Fair Market Value, as determined by the Board of Directors, taken together with all other Designated Non-Cash Consideration received pursuant to this clause (iii) that is at the time outstanding, not to exceed 5.0% of Consolidated Total Assets at the time of the kind referred receipt of such Designated Non-Cash Consideration, with the Fair Market Value of each item of Designated Non-Cash Consideration being measured at the time received and without giving effect to subsequent changes in clauses value.
(2b) or (4) of the next paragraph of this covenant. Within 365 450 days after the receipt of any Net Cash Proceeds from an Asset Sale, the Company (or the applicable Restricted Subsidiary, as the case may be) may may, at its option, apply such Net ProceedsCash Proceeds to:
(1i) to repay repay, prepay, purchase, redeem or otherwise retire (a) Indebtedness and under Credit Facilities or other Obligations Senior Indebtedness, in each case that is secured by a Lien permitted under this Indenture (and, if the Working Capital Facility and Indebtedness repaid is Indebtedness under a Revolving Credit Facility, to correspondingly permanently reduce commitments with respect thereto;
), or (2b) Indebtedness of a Subsidiary that is not a Guarantor, in each case other than Indebtedness owed to acquire all the Company or substantially all an Affiliate of the assets of, or any Capital Stock of, another Permitted Business, if, after giving effect to any such acquisition of Capital Stock, the Permitted Business is or becomes (x) a Restricted Subsidiary of the Company and (y) a Guarantor;
(3) to make capital expenditures in a Permitted Business (other than Equity Interests, Indebtedness or current assets)Company; or
(4ii) to acquire other acquire, construct, replace, improve or repair assets (other than Equity Interests or Indebtedness) that are not classified as current assets under GAAP and that are used or useful in a Permitted Business. the Company’s or any Subsidiary’s business.
(c) Pending the final application of any Net Cash Proceeds, the Company (or such Subsidiary, as the case may be) may, at its option, (1) apply the Net Cash Proceeds to temporarily reduce borrowings Indebtedness outstanding under any Revolving Credit Facility of the Working Capital Facility Company or any Subsidiary, or (2) otherwise invest or apply the Net Cash Proceeds in any manner that is not prohibited by this Indenture. .
(d) Any Net Cash Proceeds from Asset Sales that are not applied or invested as provided in the second paragraph of this covenant will Section 4.10 shall constitute “Excess Proceeds.” When Within 30 days following the date on which the aggregate amount of Excess Proceeds exceeds $5.0 25.0 million, the Company will, within five (5) days thereof, shall make an offer (an “Asset Sale Offer Offer”) to all Holders and all holders of Securities (the “Note Asset Sale Offer”), and, if required by the terms thereof, an offer to all holders of any other senior secured Indebtedness that is which ranks pari passu in right of payment and as to security interests with the Notes with respect to the assets that are the subject of such Asset Sale Securities 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 (such Indebtedness, the “Pari Passu Indebtedness” and, such offer, the “Pari Passu Asset Sale Offer”), to purchase purchase, on a pro rata basis (with Excess Proceeds pro rated between the Holders and such holders of such Pari Passu Indebtedness based upon the respective outstanding aggregate principal amounts (or accreted value, as applicable) on the date the Note Asset Sale Offer and the Pari Passu Asset Sale Offer, respectively, are made), the maximum principal amount of Notes the Securities and the maximum principal amount (or accreted value, as applicable) of such other pari passu Pari Passu Indebtedness that may be purchased out of the respective pro rata amounts of Excess Proceeds in accordance with Proceeds. To the procedures set forth in Section 3.09 hereof. The offer price for the Notes in any Asset Sale Offer will be equal to 100% of extent that the aggregate principal amount of Securities or the Notesaggregate principal amount (or accreted value, plus accrued if applicable) of such Pari Passu Indebtedness tendered into the Note Asset Sale Offer and unpaid interest to the date of purchase, and will be payable in cash. If any Excess Proceeds remain after consummation of an Pari Passu Asset Sale Offer, respectively, is less than the principal amount of Securities or the principal amount (or accreted value, if applicable) of such Pari Passu Indebtedness offered to be purchased in the Note Asset Sale Offer or the Pari Passu Asset Sale Offer, respectively, the Company and its Subsidiaries may use those remaining Excess Proceeds for any purpose not otherwise prohibited by this Indenture. If the aggregate principal amount of Notes and Securities or the aggregate principal amount (or accreted value, if applicable) of other pari passu such Pari Passu Indebtedness tendered into such the Note Asset Sale Offer or the Pari Passu Asset Sale Offer, respectively, exceeds the amount respective pro rata amounts of Excess Proceeds, the Trustee applicable trustee shall select the Notes and such Securities or such other pari passu Indebtedness Pari Passu Indebtedness, as the case may be, to be purchased on a pro rata basis.
(e) The offer price in any Asset Sale Offer shall be equal to 100% of principal amount plus accrued and unpaid interest to the date of purchase (the “Asset Sale Payment Date”) (subject to the right of holders of record on the relevant record date to receive interest due on the relevant interest payment date), and shall be payable in cash. Upon completion of each Asset Sale Offer, the amount of Excess Proceeds will shall be reset at zero.
(f) If any non-cash consideration received by the Company or any of its Subsidiaries, as the case may be, in connection with any Asset Sale is converted into or sold or otherwise disposed of for cash, then such conversion or disposition, at the time of such conversion or disposition, shall be subject to the provisions of this Section 4.10 (subject to the proviso of the definition of “Asset Sale”).
(g) The Company’s obligation to make an offer to repurchase the Securities as a result of an Asset Sale may be waived or modified at any time prior to the occurrence of such Asset Sale with the written consent of the holders of a majority in principal amount of the Securities, as set forth in Section 9.02.
(h) In the event that the Company makes an Asset Sale Offer to purchase the Securities pursuant to this Section 4.10, the Company shall comply with any applicable securities laws and regulations, including any applicable requirements of Section 14(e) of, and Rule 14e-1 under, the Exchange Act.
Appears in 1 contract
Samples: Indenture (National CineMedia, Inc.)
Limitation on Asset Sales. The Company will CNH Global shall not, and will shall not permit any of its Restricted Subsidiaries to, consummate an Asset Sale unless:
(1) the Company CNH Global or the applicable Restricted Subsidiary, as the case may be, receives consideration at the time of the such Asset Sale at least equal to the Fair Market Value of the assets or Equity Interests issued or sold or otherwise disposed of; and;
(2) at least 8575% of the consideration received in by CNH Global or the Restricted Subsidiary, as the case may be, from such Asset Sale by the Company or such Restricted Subsidiary is shall be in the form of cash. For purposes cash or Cash Equivalents and is received at the time of this Section 5.10, each of such disposition; provided that the following will be deemed to be cashamount of:
(1a) any liabilities, liabilities (as shown on the Company’s CNH Global's or such Restricted Subsidiary's most recent consolidated balance sheet), of the Company CNH Global or any Subsidiary of its Restricted Subsidiaries (other than (x) contingent liabilities and Indebtedness liabilities that are (x) by their terms subordinated to the Notes or any Note Guarantee, and (y) unsecured, or (z) secured by a Lien on the assets or rights that are the subject of the Asset Sale, which Lien is junior in priority Indebtedness owed to the Liens securing the Notes or any Note GuaranteeCNH Global and its Subsidiaries) that are assumed by the transferee of any such assets pursuant shall be deemed to a customary novation agreement that releases the Company or such Subsidiary from further liability;be cash for purposes of this clause (2); and
(2b) any securities, notes or other obligations received by the Company CNH Global or any such Restricted Subsidiary from such transferee that are contemporaneously, subject to ordinary settlement periods, converted by the Company CNH Global or such Restricted Subsidiary into cash, cash (to the extent of the cash received in that conversionreceived) within 365 days following the closing of such Asset Sale shall be deemed to be cash for purposes of this clause (2); and
(3) any stock upon the consummation of an Asset Sale, CNH Global shall apply, or assets of cause such Restricted Subsidiary to apply, the kind referred Net Cash Proceeds relating to in clauses (2) or (4) of the next paragraph of this covenant. Within such Asset Sale within 365 days after receipt thereof either to:
(A) repay Indebtedness under any Credit Facility under which CNH Global or such Restricted Subsidiary is an obligor and permanently retire such Indebtedness,
(B) acquire (or enter into a binding agreement to acquire, which acquisition must be consummated within 180 days after the end of the 365-day period following receipt of any Net Proceeds from Cash Proceeds) Replacement Assets, or
(C) a combination of prepayment and investment permitted by the foregoing clauses (3)(A) and (3)(B). On the 366th day after an Asset SaleSale or such earlier date, if any, as the Company Board of Directors of CNH Global or of such Restricted Subsidiary determines not to apply the Net Cash Proceeds relating to such Asset Sale as set forth in clauses (3)(A), (3)(B) and (3)(C) of the preceding paragraph (each, a "Net Proceeds Offer Trigger Date"), such aggregate amount of Net Cash Proceeds which have not been applied on or before such Net Proceeds Offer Trigger Date as permitted in clauses (3)(A), (3)(B) and (3)(C) of the preceding paragraph (each, a "Net Proceeds Offer Amount") shall be applied by Case New Holland to make an offer to purchase (the "Net Proceeds Offer") to all Holders and, to the extent required by the terms of any Pari Passu Debt, an offer to purchase to all holders of such Pari Passu Debt, on a date (the "Net Proceeds Offer Payment Date") not less than 30 nor more than 60 days following the applicable Net Proceeds Offer Trigger Date, from all Holders (and holders of such Pari Passu Debt) on a pro rata basis, that principal amount of Notes (and Pari Passu Debt) equal to the Net Proceeds Offer Amount at a price equal to 100% of the principal amount of the Notes (and Pari Passu Debt) to be purchased, plus accrued and unpaid interest, if any, thereon to the date of purchase; provided, however, that if at any time any non-cash consideration received by CNH Global or any Restricted Subsidiary, as the case may be, in connection with any Asset Sale is converted into or sold or otherwise disposed of for cash (other than interest received with respect to any such non-cash consideration) may apply or Cash Equivalents, then such conversion or disposition shall be deemed to constitute an Asset Sale hereunder and the Net Proceeds:
Cash Proceeds thereof shall be applied in accordance with this Section 4.12. Notwithstanding the first two paragraphs of this covenant, CNH Global and its Restricted Subsidiaries will be permitted to enter into and consummate one or more Permitted Asset Swaps without complying with such paragraphs (1except to the extent of any Net Cash Proceeds received in connection with such Permitted Asset Swap which shall constitute Net Cash Proceeds for purposes of this Section 4.12) to repay Indebtedness the extent that at the time of entering into each such Permitted Asset Swap and other Obligations under the Working Capital Facility and to correspondingly permanently reduce commitments with respect thereto;
(2) to acquire all or substantially all of the assets of, or any Capital Stock of, another Permitted Business, if, immediately after giving effect to any such acquisition Permitted Asset Swap, no Default or Event of Capital StockDefault shall have occurred or be continuing or would occur as a consequence thereof. Case New Holland may defer the Net Proceeds Offer until there is an aggregate unutilized Net Proceeds Offer Amount equal to or in excess of $25.0 million resulting from one or more Asset Sales or deemed Asset Sales (at which time, the Permitted Business entire unutilized Net Proceeds Offer Amount, and not just the amount in excess of $25.0 million, shall be applied as required pursuant to this paragraph). The first such date the aggregate unutilized Net Proceeds Offer Amount is equal to or becomes (x) a Restricted Subsidiary in excess of $25.0 million shall be treated for this purpose as the Company and (y) a Guarantor;
(3) to make capital expenditures in a Permitted Business (other than Equity Interests, Indebtedness or current assets); or
(4) to acquire other assets (other than Equity Interests or Indebtedness) that are not classified as current assets under GAAP and that are used or useful in a Permitted BusinessNet Proceeds Offer Trigger Date. Pending the final application of any such Net Cash Proceeds, the Company CNH Global or any such Restricted Subsidiary may apply such Net Cash Proceeds to temporarily reduce borrowings Indebtedness under the Working Capital Facility any revolving credit facility or other Indebtedness included under "Current Liabilities" on CNH Global's consolidated balance sheet or otherwise invest the Net Cash Proceeds in any manner that is not prohibited by this Indenture. Any Each Net Proceeds from Asset Sales that are not applied or invested as provided in the second paragraph of this covenant will constitute “Excess Proceeds.” When the aggregate amount of Excess Proceeds exceeds $5.0 million, the Company will, within five (5) days thereof, make an Asset Sale Offer to all Holders and all holders of other senior secured Indebtedness that is pari passu in right of payment and as to security interests with the Notes with respect to the assets that are the subject of such Asset Sale 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 amount of Notes and such other pari passu Indebtedness that may be purchased out of the Excess Proceeds in accordance with the procedures set forth in Section 3.09 hereof. The offer price for the Notes in any Asset Sale Offer will be mailed to the record Holders as shown on the register of Holders within 30 days following the Net Proceeds Offer Trigger Date, with a copy to the Trustee, and shall state:
(1) that the Net Proceeds Offer is being made pursuant to this Section 4.12;
(2) that such Holders have the right to require Case New Holland to apply the Net Proceeds Offer Amount (less any amount to be (and actually) applied to any Pari Passu Debt) to repurchase such Notes at a purchase price in cash equal to 100% of the aggregate principal amount thereof plus accrued and unpaid interest, if any, to the purchase date which shall be no less than 30 days nor more than 60 days from the applicable Net Proceeds Offer Trigger Date;
(3) that any Note not tendered or accepted for payment will continue to accrue interest;
(4) that any Notes accepted for payment pursuant to the Net Proceeds Offer shall cease to accrue interest after the Net Proceeds Offer Payment Date;
(5) that Holders accepting the offer to have their Notes purchased pursuant to a Net Proceeds Offer will be required to surrender the Notes, with the form entitled "Option of Holder to Elect Purchase" on the reverse of the Note completed, to the Paying Agent at the address specified in the notice prior to the close of business on the third Business Day preceding the Net Proceeds Offer Payment Date;
(6) that Holders will be entitled to withdraw their acceptance of the Net Proceeds Offer if the Paying Agent receives, not later than the close of business on the third Business Day preceding the Net Proceeds Offer Payment Date, a telegram, telex, facsimile transmission or letter setting forth the name of the Holder, the principal amount of the Notes, plus accrued and unpaid interest to the date of Notes delivered for purchase, and a statement that such Holder is withdrawing his election to have such Notes purchased;
(7) that Holders whose Notes are being purchased only in part will be payable issued new Notes equal in principal amount to the unpurchased portion of the Notes surrendered, provided that each Note purchased and each such new Note issued shall be in an original principal amount in denominations of $1,000 and integral multiples thereof;
(8) the calculations used in determining the amount of Net Proceeds Offer Amount to be applied to the purchase of such Notes;
(9) any other procedures that a Holder must follow to accept a Net Proceeds Offer or effect withdrawal of such acceptance; and
(10) the name and address of the Paying Agent. Upon receiving notice of the Net Proceeds Offer, Holders may elect to tender their Notes in whole or in part in integral multiples of $1,000 in exchange for cash. If any Excess To the extent Holders properly tender Notes and holders of Pari Passu Debt properly tender such Pari Passu Debt in an amount exceeding the Net Proceeds remain after consummation of an Asset Sale OfferOffer Amount, the Company tendered Notes and Pari Passu Debt will be purchased on a pro rata basis based on aggregate amounts of Notes and Pari Passu Debt tendered. A Net Proceeds Offer shall remain open for a period of 20 Business Days or such longer period as may use those Excess be required by law. If the principal amount of Notes tendered in response to the Net Proceeds Offer is less than the Net Proceeds Offer Amount, such funds will no longer constitute Net Cash Proceeds and may be used for any purpose not otherwise prohibited by this Indenture. If Case New Holland shall comply with the aggregate principal amount requirements of Rule 14e-1 under the Exchange Act and any other securities laws and regulations to the extent such laws and regulations are applicable in connection with the repurchase of Notes pursuant to a Net Proceeds Offer. To the extent that the provisions of any securities laws or regulations conflict with the provisions of this Section 4.12, Case New Holland shall comply with the applicable securities laws and the amount of other pari passu Indebtedness tendered into such regulations and shall not be deemed to have breached its obligations under this Section 4.12 by virtue thereof. CNH Global shall not permit any Unrestricted Financial Services Subsidiary to consummate a transaction that would constitute an Asset Sale Offer exceeds had it been consummated by a Restricted Subsidiary unless such Unrestricted Financial Services Subsidiary receives Fair Market Value for the amount assets, net of Excess Proceedsany liabilities assumed, the Trustee shall select the Notes and such other pari passu Indebtedness to be purchased on a pro rata basis. Upon completion of each Asset Sale Offer, the amount of Excess Proceeds will be reset at zerosold or disposed of.
Appears in 1 contract
Samples: Indenture (CNH Global N V)
Limitation on Asset Sales. (a) The Company will not, and will not permit any of its Restricted Subsidiaries to, consummate an Asset Sale unless:
(1i) the Company or the Restricted Subsidiary, as the case may be, receives consideration at the time of the Asset Sale at least equal to the Fair Market Value of the assets or Equity Interests issued or sold or otherwise disposed of; and
(2ii) at least 8575% of the consideration received in the Asset Sale by the Company or such Restricted Subsidiary is in the form of cashcash or Cash Equivalents. For purposes of this Section 5.104.10(a), each of the following will be deemed to be cash:
(1) any liabilities, as shown on the Company’s most recent consolidated balance sheet, of any of the Company or any Subsidiary its Restricted Subsidiaries (other than contingent liabilities and Indebtedness liabilities that are (x) by their terms subordinated to the Notes or any Note Guarantee, (y) unsecured, or (z) secured by a Lien on the assets or rights that are the subject of the Asset Sale, which Lien is junior in priority to the Liens securing the Notes notes or any Note Guarantee) that are assumed by the transferee of any such assets pursuant to a customary novation or indemnity agreement that releases the Company or such Restricted Subsidiary from or indemnifies against further liability;
(2) 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 cashcash within 120 days from receipt thereof, to the extent of the cash received in that conversion; and
(3) any stock or assets of the kind referred to in clauses (2Section 4.10(b)(ii) or Section 4.10(b)(iv).
(4b) of the next paragraph of this covenant. Within 365 days after the receipt of any Net Proceeds from an Asset Sale, the Company (or the applicable Restricted Subsidiary, as the case may be) may apply such Net ProceedsProceeds at its option:
(1i) to repay Indebtedness and other Obligations under the Working Capital New Credit Facility and to correspondingly permanently reduce commitments with respect thereto;
(2ii) to acquire all or substantially all of the assets of, or any Capital Stock of, another Permitted Business, if, after giving effect to any such acquisition of Capital Stock, the Permitted Business is or becomes (x) a Restricted Subsidiary of the Company and (y) a GuarantorCompany;
(3iii) to make a capital expenditures in a Permitted Business (other than Equity Interests, Indebtedness or current assets); orexpenditure;
(4iv) to acquire other assets (other than Equity Interests or Indebtedness) that are not classified as current assets under GAAP and that are used or useful in a Permitted Business. ; or
(v) any combination of the foregoing; provided that if during such 365-day period the Company or any of its Restricted Subsidiaries enters into a definitive binding agreement committing it to apply such Net Proceeds in accordance with the requirements of Section 4.10(b)(ii)–(iv), or any combination thereof, such 365-day period will be extended with respect to the amount of Net Proceeds so committed until such Net Proceeds are required to be applied in accordance with such agreement (or, if earlier, until termination of such agreement).
(c) Pending the final application of any Net Proceeds, the Company (or the applicable Restricted Subsidiary) may temporarily reduce revolving credit borrowings under the Working Capital Facility or otherwise invest the Net Proceeds in any manner that is not prohibited by this Indenture. .
(d) Any Net Proceeds from Asset Sales that are not applied or invested as provided in the second paragraph of this covenant Section 4.10(b) will constitute “Excess Proceeds.” When the aggregate amount of Excess Proceeds exceeds $5.0 10.0 million, the Company will, within five (5) days thereof, the Issuers will make an offer (an “Asset Sale Offer Offer”) to all Holders and all and, at the Issuers’ option, to holders of other senior secured Indebtedness that is ranking pari passu in right of payment and as to security interests with the Notes with respect to the assets that are the subject of such Asset Sale containing provisions similar to those set forth the asset sale provisions contained in this Indenture with respect to offers to purchase purchase, prepay or redeem with the proceeds of sales of assets to purchase the maximum principal amount of Notes and such other pari passu Indebtedness notes that may be purchased purchased, prepaid or redeemed out of the Excess Proceeds in accordance with the procedures set forth in Section 3.09 hereofProceeds. The offer price for the Notes in any Asset Sale Offer will be equal to 100% of the aggregate principal amount of the Notesamount, plus accrued and unpaid interest and Special Interest, if any, to the date of purchase, prepayment or redemption, subject to the rights of Holders on the relevant Record Date to receive interest due on the relevant Interest Payment Date, and will be payable in cash. If any Excess Proceeds remain after consummation of an Asset Sale Offer, the Company may use those Excess Proceeds for any purpose not otherwise prohibited by this Indenture. If the aggregate principal amount of Notes and the amount of other any such pari passu Indebtedness tendered into such Asset Sale Offer exceeds the amount of Excess Proceeds, the Trustee shall will select the Notes and such other pari passu Indebtedness to be purchased on a pro rata basis, based on the amounts tendered or required to be prepaid or redeemed. Upon completion of each Asset Sale Offer, the amount of Excess Proceeds will be reset at zero.
(e) The Issuers will comply with the requirements of Rule 14e-1 under the Exchange Act and any other securities laws and regulations thereunder to the extent those laws and regulations are applicable in connection with each repurchase of Notes pursuant to an Asset Sale Offer. To the extent that the provisions of any securities laws or regulations conflict with this Section 4.10, the Issuers will comply with the applicable securities laws and regulations and will not be deemed to have breached their obligations under this Section 4.10 by virtue of such compliance.
Appears in 1 contract
Limitation on Asset Sales. (a) The Company will not, and will not permit any of its Restricted Subsidiaries Subsidiary to, consummate an make any Asset Sale unless:
unless (1i) the Company or the such Restricted Subsidiary, as the case may be, receives consideration at the time of the such Asset Sale at least equal to the Fair Market Value fair market value (as 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 other property sold or otherwise disposed of; and
of in the Asset Sale, and (2ii) at least 8575% of the such consideration received in the Asset Sale by the Company or such Restricted Subsidiary is in the form of cash. For cash or Cash Equivalents; provided that for purposes of this Section 5.10, each covenant "cash" shall include the amount of the following will be deemed to be cash:
(1) any liabilities, as shown on the Company’s most recent consolidated balance sheet, of the Company or any Subsidiary liabilities (other than contingent liabilities and Indebtedness that are (x) by their terms subordinated to the Notes or any Note Subsidiary Guarantee, ) of the Company or such Restricted Subsidiary (y) unsecured, or (z) secured by a Lien as shown on the assets Company's or rights that are such Restricted Subsidiary's most recent balance sheet or in the subject of the Asset Sale, which Lien is junior in priority to the Liens securing the Notes or any Note Guaranteenotes thereto) that are assumed by the transferee of any such assets pursuant to a customary novation agreement that releases the Company or such Subsidiary from further liability;
(2) any securities, notes or other obligations received by property in such Asset Sale (and excluding any liabilities that are incurred in connection with or in anticipation of such Asset Sale), but only to the extent that such assumption is effected on a basis under which there is no further recourse to the Company or any of its Restricted Subsidiaries with respect to such liabilities; provided, further, that the Company and such Restricted Subsidiary from such transferee that are contemporaneously, subject shall be permitted to ordinary settlement periods, converted by the Company or such Restricted Subsidiary into cash, make an Asset Sale without complying with clause (ii) above to the extent of the cash received in that conversion; andconsideration for such Asset Sale constitutes Additional Assets.
(3b) any stock or assets of the kind referred to in clauses (2) or (4) of the next paragraph of this covenant. Within 365 360 days after the receipt of any Net Proceeds from an Asset Sale, the Company may elect to apply the Net Proceeds from such Asset Sale to (or the applicable Restricted Subsidiary, as the case may bei) may apply such Net Proceeds:
(1) to repay permanently reduce any Indebtedness and other Obligations under the Working Capital Facility and to correspondingly permanently reduce commitments with respect thereto;
Credit Agreement, and/or (2ii) to acquire all or substantially all of the assets ofmake an investment in, or any Capital Stock of, another Permitted Business, if, after giving effect to any such acquisition of Capital Stockacquire assets directly related to, the Permitted Business is or becomes (x) a Restricted Subsidiary of the Company and (y) a Guarantor;
(3) to make capital expenditures in a Permitted Business (other than Equity Interests, Indebtedness or current assets); or
(4) to acquire other assets (other than Equity Interests or Indebtedness) that are not classified as current assets under GAAP and that are used or useful in a Permitted Businesstelevision broadcasting business. Pending the final application of any such Net Proceeds, the Company may temporarily reduce borrowings under the Working Capital Facility revolving portion of the Credit Agreement or otherwise temporarily invest the such Net Proceeds in any manner that is not prohibited permitted by this Indenture. Any Net Proceeds from an Asset Sales that are Sale not applied or invested as provided in the second paragraph first sentence of this covenant paragraph within 360 days of such Asset Sale will be deemed to constitute “"Excess Proceeds.” When "
(c) As soon as practical, but in no event later than 10 Business Days after any date (an "Asset Sale Offer Trigger Date") that the aggregate amount of Excess Proceeds exceeds $5.0 million5,000,000, the Company willshall, within five (5) days thereof, make commence an Asset Sale Offer offer to all Holders purchase the maximum principal amount of Notes and all holders other Indebtedness of other senior secured Indebtedness the Company that is ranks pari passu in right of payment and as to security interests with the Notes with respect (to the assets that are extent required by the subject of such Asset Sale 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 amount of Notes and instrument governing such other pari passu Indebtedness Indebt edness) that may be purchased out of the Excess Proceeds in accordance with the procedures set forth in Section 3.09 hereof(an"Asset Sale Offer"). The offer price for the Any Notes in any and other Indebtedness to be purchased pursuant to an Asset Sale Offer will shall be purchased pro rata based on the aggregate principal amount of Notes and such other Indebtedness outstanding and all Notes shall be purchased at an offer price in cash in an amount equal to 100% of the aggregate principal amount of the Notesthereof, plus accrued and unpaid interest to the date of purchase, and will be payable in cash. If To the extent that any Excess Proceeds remain after consummation completion of an Asset Sale Offer, the Company may use those Excess Proceeds the remaining amount for general corporate purposes, including for the redemption, repurchase, retirement or other acquisition of the Existing Subordinated Notes in accordance with the Existing Subordinated Notes Indentures.
(d) Within 30 days following the occurrence of any purpose not otherwise prohibited by this Indenture. If Asset Sale Offer Trigger Date, the aggregate Company shall mail to each holder of Notes at such holder's registered address a notice stating: (i) that an Asset Sale Offer Trigger Date has occurred and that the Company is offering to purchase the maximum principal amount of Notes that may be purchased out of the Excess Proceeds (to the extent provided in the foregoing clause (c)), at an offer price in cash in an amount equal to 100% of the principal amount thereof, plus accrued and unpaid interest to the date of purchase (the "Asset Sale Offer Purchase Date"), which shall be a Business Day, specified in such notice, that is not earlier than 30 days or later than 60 days from the date such notice is mailed, (ii) the amount of other pari passu Indebtedness tendered into such accrued and unpaid interest as of the Asset Sale Offer exceeds Purchase Date, (iii) that any Note not tendered will continue to accrue interest, (iv) that, unless the amount Company defaults in the payment of Excess Proceeds, the Trustee shall select purchase price for the Notes and such other pari passu Indebtedness payable pursuant to be purchased on a pro rata basis. Upon completion of each the Asset Sale Offer, any Notes accepted for payment pursuant to the Asset Sale Offer shall cease to accrue interest after the Asset Sale Offer Purchase Date, (v) that Holders electing to tender any Note or portion thereof will be required to surrender their Note, with a form entitled "Option of Holder to Elect Purchase" completed, to the Paying Agent at the address specified in the notice prior to the close of business on the Business Day preceding the Asset Sale Offer Purchase Date; provided that Holders electing to tender only a portion of any Note must tender a principal amount of Excess Proceeds $1,000 or integral multiples thereof, (vi) that Holders will be reset at zeroentitled to withdraw their election to tender Notes if the Paying Agent receives, not later than the close of business on the third Business Day preceding the Asset Sale Offer Purchase Date, a telegram, telex, facsimile transmission or letter setting forth the name of the Holder, the principal amount of Notes delivered for purchase, and a statement that such Holder is withdrawing his election to have such Note purchased; and (vii) that Holders whose Notes are accepted for payment in part will be issued new Notes equal in principal amount to the unpurchased portion of Notes surrendered; provided that only Notes in a principal amount of $1,000 or integral multiples thereof will be accepted for payment in part.
Appears in 1 contract
Limitation on Asset Sales. The Company will shall not, and will shall not permit any of its Restricted Subsidiaries to, consummate an Asset Sale unless:
unless (1i) the Company (or the Restricted Subsidiary, as the case may be, ) receives consideration at the time of the such Asset Sale at least equal to the Fair Market Value 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
of and (2ii) at least 8575% of the consideration therefor received in the Asset Sale by the Company or such Restricted Subsidiary is in the form of cash. For purposes cash or Cash Equivalents; provided that the amount of this Section 5.10, each of the following will be deemed to be cash:
(1x) any liabilities, liabilities (as shown on the Company’s 's or such Restricted Subsidiary's most recent consolidated balance sheet), of the Company or any Restricted Subsidiary (other than contingent liabilities and Indebtedness liabilities that are (x) by their terms subordinated to the Senior Notes or any Note Guarantee, (y) unsecured, or (z) secured by a Lien on the assets or rights that are the subject of the Asset Sale, which Lien is junior in priority to the Liens securing the Notes or any Note GuaranteeSubsidiary Guarantee thereof) that are assumed by the transferee of any such assets pursuant to a customary novation agreement that releases the Company or such Restricted Subsidiary from further liability;
liability and (2y) 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, immediately converted by the Company or such Restricted Subsidiary into cash, cash (to the extent of the cash received in that conversion; and
(3) any stock or assets of the kind referred received), shall be deemed to in clauses (2) or (4) of the next paragraph be cash for purposes of this covenantclause (ii). Within 365 270 days after the receipt of any Net Proceeds from an Asset Sale, the Company (or the applicable any Restricted Subsidiary, as the case may be) Subsidiary may apply such Net Proceeds:
, at its option, (1a) to repay Indebtedness and other Obligations outstanding under the Working Capital Facility Senior Credit Facilities (and to correspondingly permanently reduce commitments with respect thereto;
), or (2b) to acquire all or substantially all of the assets of, or any Capital Stock of, another Permitted Business, if, after giving effect to any such acquisition of Capital Stocka controlling interest in another business, the Permitted Business is making of a capital expenditure or becomes (x) the acquisition of other long term assets, in each case, in the same or a Restricted Subsidiary similar line of business as the Company and (y) a Guarantor;
(3) to make capital expenditures was engaged in a Permitted Business (other than Equity Interests, Indebtedness or current assets); or
(4) to acquire other assets (other than Equity Interests or Indebtedness) that are not classified as current assets under GAAP and that are used or useful in a Permitted Businesson the date hereof. Pending the final application of any such Net Proceeds, the Company or such Restricted Subsidiary may temporarily reduce outstanding revolving credit borrowings, including borrowings under the Working Capital Facility Senior Credit Facilities, or otherwise invest the such Net Proceeds in any manner that is not prohibited by this Indenture. Any Net Proceeds from Asset Sales that are not applied or invested as provided in the second paragraph first sentence of this covenant paragraph will be deemed to constitute “"Excess Proceeds.” " When the aggregate amount of Excess Proceeds exceeds $5.0 million10.0 million (the "Asset Sale Offer Triggering Event"), the Company will, within five (5) days thereof, will be required to make an Asset Sale Offer offer to all Holders and all holders of other senior secured Indebtedness that is pari passu in right of payment and as to security interests with the Senior Notes with respect to the assets that are the subject of such (an "Asset Sale 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 Offer") to purchase the maximum principal amount of Senior Notes and such other pari passu Indebtedness that may be purchased out of the Excess Proceeds Proceeds, at an offer price in cash in an amount equal to 100% of the principal amount thereof plus accrued and unpaid interest and Additional Interest thereon, if any, to the date of purchase, in accordance with the procedures set forth in Section 3.09 hereof. The offer price for Company shall comply with the requirements of Rule 14e-1 under the Exchange Act and any other securities laws and regulations thereunder to the extent such laws and regulations are applicable in connection with the repurchase of the Senior Notes in any Asset Sale Offer will be equal to 100% of Sales Offer. To the extent that the aggregate principal amount of the Notes, plus accrued and unpaid interest Senior Notes tendered pursuant to the date of purchase, and will be payable in cash. If any Excess Proceeds remain after consummation of an Asset Sale OfferOffer is less than the Excess Proceeds, the Company may use those any remaining Excess Proceeds for any purpose not otherwise prohibited by this Indenturegeneral corporate purposes. If the aggregate principal amount of Senior Notes and the amount of other pari passu Indebtedness tendered into such Asset Sale Offer surrendered by Holders thereof exceeds the amount of Excess Proceeds, the Trustee shall select the Senior Notes and such other pari passu Indebtedness to be purchased on a pro rata basis. Upon completion of each Asset Sale Offersuch offer to purchase, the amount of Excess Proceeds will shall be reset at zero.
Appears in 1 contract
Samples: Indenture (Talton Invision Inc)
Limitation on Asset Sales. (a) The Company will not, and will not permit any of its Restricted Subsidiaries to, consummate an Asset Sale unless:
(1i) the Company (or the a Restricted Subsidiary, as the case may be, ) receives consideration at the time of the Asset Sale at least equal to the Fair Market Value fair market value, determined as of the date of the agreement with respect thereto, of the assets or Equity Interests issued or sold or otherwise disposed of; and
(2ii) at least 8575% of the aggregate consideration received by the Company and its Restricted Subsidiaries in the Asset Sale by and all other Asset Sales since the Company or such Restricted Subsidiary Issue Date, on a cumulative basis, is in the form of cashcash or Cash Equivalents. For purposes of this Section 5.10provision, each of the following will be deemed to be cash:
(1) any liabilities, as shown on the Company’s most recent consolidated balance sheet, of the Company or any such Restricted Subsidiary (other than contingent liabilities and Indebtedness that are (x) by their terms subordinated to the Notes or any Note Guarantee, (y) unsecured, or (z) secured by a Lien on the assets or rights that are the subject of the Asset Sale, which Lien is junior in priority to the Liens securing the Notes or any Note Guarantee) that are assumed by the transferee of any such assets pursuant to a customary novation an agreement that releases the Company or such Restricted Subsidiary from or indemnifies the Company or such Restricted Subsidiary against further liability;
(2) any securities, notes or other obligations received by the Company or any such Restricted Subsidiary from such transferee that are contemporaneouslyare, subject to ordinary settlement periodswithin 180 days after the Asset Sale, converted by the Company or such Restricted Subsidiary into cash, to the extent of the cash received in that conversion; and;
(3) any stock or assets of the kind referred to in clauses clause (2ii), (iii) or (v) of Section 4.10(b); and
(4) any Designated Non-cash Consideration received by the Company or such Restricted Subsidiary in such Asset Sale having an aggregate fair market value, taken together with all other Designated Non-cash Consideration received since the Issue Date pursuant to this clause (4) that at the time has not been converted to cash, not to exceed the greater of (x) $75.0 million and (y) 3.5% of Consolidated Net Tangible Assets at the time of the next paragraph receipt of this covenant. such Designated Non-cash Consideration, with the fair market value of each item of Designated Non-cash Consideration being measured at the time received and without giving effect to subsequent changes in value.
(b) Within 365 days after the receipt of any Net Proceeds from an Asset Sale, the Company (or the applicable any Restricted Subsidiary, as the case may be) Subsidiary may apply such those Net ProceedsProceeds at its option to any combination of the following:
(1i) to repay Indebtedness repay, repurchase or redeem Senior Debt (and other Obligations in the case of repaying Senior Debt under any revolving credit agreement, including the Working Capital Facility and Credit Agreement, to correspondingly permanently reduce commitments with respect theretothereunder by a corresponding amount);
(2ii) to acquire all or substantially all of the properties or assets of, or any Capital of a Person primarily engaged in a Permitted Business;
(iii) to acquire Voting Stock of, another of a Person primarily engaged in a Permitted Business, ifif such Person is, or after giving effect to any such acquisition of Capital Stockacquisition, the Permitted Business is or becomes (x) such Person becomes, a Restricted Subsidiary of the Company and (y) a GuarantorSubsidiary;
(3iv) to make capital expenditures in respect of a Permitted Business (other than Equity Interests, Indebtedness or current assets)Business; or
(4v) to acquire other long-term assets (other than Equity Interests or Indebtedness) that are not classified as current assets under GAAP and that are used or useful in a Permitted Business. .
(c) The acquisition of stock or assets, or making of a capital expenditure, pursuant to clauses (ii), (iii), (iv) or (v) of Section 4.10(b) shall be deemed to be satisfied if an agreement committing to make the acquisitions or expenditure referred to therein is entered into by the Company or any Restricted Subsidiary within the time period specified in Section 4.10(b) and such Net Proceeds are subsequently applied in accordance with such agreement within six months following the date such agreement is entered into.
(d) Pending the final application of any Net Proceeds, the Company or any Restricted Subsidiary may temporarily reduce borrowings under the Working Capital Facility or otherwise invest the Net Proceeds in any manner that is not prohibited by this Indenture. Any Net Proceeds from Asset Sales that are not applied or invested as provided in the second paragraph of this covenant Section 4.10(b) will constitute “Excess Proceeds.” When ”
(e) On the 366th day after the Asset Sale (or, at the Company’s option, any earlier date), if the aggregate amount of Excess Proceeds then exceeds $5.0 25.0 million, the Company will, within five (5) days thereof, will make an Asset Sale Offer to all Holders (with a copy to the Trustee), and to all holders of other senior secured Pari Passu Indebtedness that is pari passu in right of payment and as to security interests with the Notes with respect to the assets that are the subject of such Asset Sale 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 assets, to purchase the maximum principal amount of Notes and such other pari passu Pari Passu Indebtedness that may be purchased out of the Excess Proceeds in accordance with the procedures set forth in Section 3.09 hereofProceeds. The offer price for the Notes in any Asset Sale Offer will be equal to 100% of the aggregate principal amount of the Notes, plus accrued and unpaid interest interest, if any, to the Settlement Date, subject to the right of Holders of record on the relevant record date of purchaseto receive interest due on an Interest Payment Date that is on or prior to the Settlement Date, and will be payable in cash. The Company may satisfy the foregoing obligations with respect to any Net Proceeds from an Asset Sale by making an Asset Sale Offer with respect to such Net Proceeds prior to the expiration of the relevant 365 days (or such longer period provided above). If any Excess Proceeds remain after consummation of an Asset Sale Offer, the Company or any Restricted Subsidiary may use those Excess Proceeds for any purpose not otherwise prohibited by this Indenture. If the aggregate principal amount of Notes and the amount of other pari passu Pari Passu Indebtedness tendered into such Asset Sale Offer exceeds the amount of Excess Proceeds, the Trustee shall Company will select the Notes and such other pari passu Pari Passu Indebtedness to be purchased on a pro rata basisbasis as set forth in Section 3.09(c)(8). Upon completion of each Asset Sale Offer, the amount of Excess Proceeds will be reset at zero.
(f) The Company will comply with the requirements of Rule 14e-1 under the Exchange Act and any other securities laws and regulations thereunder to the extent those laws and regulations are applicable in connection with each repurchase of Notes pursuant to an Asset Sale Offer. To the extent that the provisions of any securities laws or regulations conflict with the provisions of this Section 4.10, the Company will comply with the applicable securities laws and regulations and will not be deemed to have breached its obligations under this Section 4.10 by virtue of such conflict.
(g) The provisions under this Indenture relating to the Company’s obligation to make an offer to repurchase the Notes as a result of an Asset Sale may be waived or modified with the written consent of the Holders of a majority in principal amount of the outstanding Notes.
Appears in 1 contract
Limitation on Asset Sales. The Company will shall not, and will shall not permit any of its Restricted Subsidiaries Subsidiary to, directly or indirectly, consummate an any Asset Sale unless:
: (1a) the Company or the Restricted Subsidiary, as the case may be, Subsidiary receives consideration (measured either, at the option of the Company, at the time of the Asset Sale or as of the date of the definitive agreement with respect to such Asset Sale) at least equal to the Fair Market Value of the assets or Equity Interests issued or sold or otherwise disposed ofProperty subject to that Asset Sale; and
and (2b) at least 8575% of the aggregate consideration received paid to (or for the account of) the Company or the Restricted Subsidiary in connection with the Asset Sale by the Company or such Restricted Subsidiary is in the form of cash. For purposes cash or Cash Equivalents or the assumption by the purchaser of this Section 5.10, each of the following will be deemed to be cash:
(1) any liabilities, as shown on the Company’s most recent consolidated balance sheet, liabilities of the Company or any Restricted Subsidiary (other than contingent liabilities and Indebtedness that are (x) by their terms subordinated to the Notes Notes) as a result of which the Company and the Restricted Subsidiaries are no longer obligated with respect to those liabilities. The foregoing shall not apply with respect to any involuntary loss or any Note Guarantee, (y) unsecured, or (z) secured by a Lien on the assets or rights that are the subject of the Asset Sale, which Lien is junior in priority to the Liens securing the Notes or any Note Guarantee) that are assumed by the transferee other Involuntary Dispositions of any such assets pursuant to a customary novation agreement that releases assets. For the Company or such Subsidiary from further liability;
purposes of this Section 4.07: (21) any (x) securities, instruments, notes or other obligations assets received by the Company or any such Restricted Subsidiary from such transferee the purchaser that are contemporaneously, subject to ordinary settlement periods, converted by the Company or such Restricted Subsidiary into cash, cash or Cash Equivalents within 180 days after the receipt thereof shall be considered to be cash to the extent of the cash received in that conversionconversion and (y) any cash payments received with respect to instruments, notes, securities or other assets referred to in the foregoing clause (x) within 180 days of receipt of such instruments, notes, securities or other assets; and
(2) any cash consideration paid to the Company or the Restricted Subsidiary in connection with the Asset Sale that is held in escrow or on deposit to support 82 indemnification, adjustment of purchase price or similar obligations in respect of such Asset Sale shall be considered to be cash; (3) Productive Assets received by the Company or any stock or assets of Restricted Subsidiary in connection with the kind referred Asset Sale shall be considered to in clauses (2) or be cash; (4) the requirement that at least 75% of the next paragraph consideration paid to the Company or the Restricted Subsidiary in connection with the Asset Sale be in the form of this covenantcash or Cash Equivalents or assumed liabilities shall also be considered satisfied if the cash or Cash Equivalents received constitutes at least 75% of the consideration received by the Company or the Restricted Subsidiary in connection with such Asset Sale, determined on an after-tax basis; and (5) any Designated Non-Cash Consideration received by the Company or any Restricted Subsidiary in connection with the Asset Sale having an aggregate Fair Market Value, taken together with all other Designated Non-Cash Consideration received in respect of Asset Sales, that at that time outstanding does not exceed the greater of (x) $60 million or (y) 2% of Total Assets shall be considered to be cash. Within 365 days after the receipt of thereof, any Net Proceeds Available Cash (or any portion thereof) from an Asset Sale, Sales may be applied by the Company (or the applicable a Restricted Subsidiary, as to the case may beextent the Company or the Restricted Subsidiary elects (or is required by the terms of any Debt): (a) may apply such Net Proceeds:
to: (1) to repay Indebtedness reduce, repay, prepay or purchase Debt under the Super Senior Revolving Credit Facility; or (2) reduce, repay, prepay, redeem or purchase Senior Secured Debt (other than Debt described under (1) above) (provided, that if the Company or any Restricted Subsidiary shall so reduce such Senior Secured Debt other than the Notes, the Issuers will equally and other ratably reduce Obligations under the Working Capital Facility Notes) and to correspondingly permanently reduce commitments the extent the Obligations under the Notes are reduced or repaid, they shall be reduced or repaid in accordance with respect thereto;
the provisions set forth under Section 3.07, Section 4.27, through open market purchases or privately negotiated transactions (2) to acquire all provided, that such purchases are at or substantially all above 100% of the assets of, principal amount thereof) or any Capital Stock of, another Permitted Business, if, after giving effect to any such acquisition of Capital Stock, the Permitted Business is or becomes (x) a Restricted Subsidiary of the Company and (y) a Guarantor;
(3) to make capital expenditures in a Permitted Business (other than Equity Interests, Indebtedness or current assets); or
(4) to acquire other assets (other than Equity Interests or Indebtedness) that are not classified as current assets under GAAP and that are used or useful in a Permitted Business. Pending the final application of any Net Proceeds, the Company may temporarily reduce borrowings under the Working Capital Facility or otherwise invest the Net Proceeds in any manner that is not prohibited by this Indenture. Any Net Proceeds from Asset Sales that are not applied or invested as provided in the second paragraph of this covenant will constitute “Excess Proceeds.” When the aggregate amount of Excess Proceeds exceeds $5.0 million, the Company will, within five (5) days thereof, make through an Asset Sale Offer to all Holders and all holders of other senior secured Indebtedness that is pari passu in right of payment and as to security interests with the Notes with respect to the assets that are the subject of such Asset Sale containing provisions similar to those set forth in this Indenture with respect to offers offer to purchase or redeem with the proceeds of sales of assets to purchase the maximum amount of Notes and such other pari passu Indebtedness that may be purchased out of the Excess Proceeds (in accordance with the procedures set forth below for an Asset Disposition Offer (as defined below)) or pursuant to the amortization provisions of this Indenture; provided, that all Net Available Cash used to make such an offer to purchase shall be deemed to have been so applied whether or not accepted by the Noteholders; or (3)
(i) make an offer to purchase Notes (in Section 3.09 hereof. The accordance with the procedures set forth below for an Asset Disposition Offer); provided, that all Net Available Cash used to make such an offer price for to purchase shall be deemed to have been so applied whether or not accepted by the Noteholders or (ii) repurchase or redeem the Notes in any Asset Sale Offer will be equal to accordance with the provisions set forth under Section 3.07 or through open market purchases or privately negotiated transactions (provided, that such purchases are at or above 100% of the aggregate principal amount of the Notes, plus accrued and unpaid interest to the date of purchase, and will be payable in cash. If any Excess Proceeds remain after consummation of an Asset Sale Offer, the Company may use those Excess Proceeds for any purpose not otherwise prohibited by this Indenture. If the aggregate principal amount of Notes and the amount of other pari passu Indebtedness tendered into such Asset Sale Offer exceeds the amount of Excess Proceeds, the Trustee shall select the Notes and such other pari passu Indebtedness to be purchased on a pro rata basis. Upon completion of each Asset Sale Offer, the amount of Excess Proceeds will be reset at zero.thereof); or
Appears in 1 contract
Samples: Indenture (Borr Drilling LTD)
Limitation on Asset Sales. (a) The Company will shall not, and will shall not permit any of its Restricted Subsidiaries Subsidiary to, direct- ly or indirectly, consummate an any Asset Sale unless:
(1i) the Company or such Restricted Subsidiary receives consideration, including the Restricted Subsidiaryrelief of liabilities, as the case may be, receives consideration at the time of the such Asset Sale at least equal to the Fair Market Value of the assets or Equity Interests issued or sold or otherwise disposed ofProperty subject to such Asset Sale; and
(2ii) except in the case of a Permitted Asset Swap, at least 8575% of the consideration received in the Asset Sale by paid to the Company or such Restricted Subsidiary in connection with such Asset Sale is in the form of cashcash or Temporary Cash Investments. For Solely for the purposes of clause (a)(ii) of this Section 5.104.12, each of the following will be deemed to be cash:
(1A) any liabilities, as shown on the Company’s most recent consolidated balance sheet, assumption by the purchaser of liabilities of the Company or any Restricted Subsidiary (other than contingent liabilities and Indebtedness or liabilities that are (x) by their terms subordinated to the Notes or any Note Guarantee, (y) unsecured, or (z) secured by a Lien on the assets or rights that are the subject of the Asset Sale, which Lien is junior in priority to the Liens securing the Notes or any Note applicable Subsidiary Guarantee) that are assumed by the transferee as a result of any such assets pursuant to a customary novation agreement that releases which the Company or and the Re- stricted Subsidiaries are no longer obligated with respect to such Subsidiary from further liabilityliabilities;
(2B) any securities, notes or other obligations received by the Company or any such Restricted Subsidiary from such transferee that Purchaser to the extent they are contemporaneously, subject to ordinary settlement periods, promptly converted or mone- tized by the Company or such Restricted Subsidiary into cash, cash (to the extent of the cash received in that conversionreceived) or by their terms mature or are otherwise to be converted into cash within 180 days; and
(3C) any stock Designated Noncash Consideration the Fair Market Value of which, when taken together with all other Designated Noncash Consideration received pursuant to this clause (C) (and not subsequently converted into cash or assets Temporary Cash Investments that are treated as Net Available Cash), does not exceed the greater of the kind referred to in clauses (1) $150.0 million and (2) or (4) 5.0% of the next paragraph Con- solidated Net Tangible Assets at the time of this covenant. Within 365 days after the receipt of such Designated Noncash Considera- tion, with the Fair Market Value of each item of Designated Noncash Consideration being meas- ured at the time received and without giving effect to subsequent changes in value.
(b) The Net Available Cash (or any Net Proceeds portion thereof) from an Asset Sale, Sales may be applied by the Company (or the applicable a Restricted Subsidiary, as to the case may be) may apply extent the Company or such Net Proceeds:
Restricted Subsidiary elects (1or is required by the terms of any Debt) to repay Indebtedness and other Obligations under the Working Capital Facility and to correspondingly permanently reduce commitments with respect thereto;
(2) to acquire all or substantially all any of the assets of, or any Capital Stock of, another Permitted Business, if, after giving effect to any such acquisition of Capital Stock, the Permitted Business is or becomes (x) a Restricted Subsidiary of the Company and (y) a Guarantor;
(3) to make capital expenditures in a Permitted Business (other than Equity Interests, Indebtedness or current assets); or
(4) to acquire other assets (other than Equity Interests or Indebtedness) that are not classified as current assets under GAAP and that are used or useful in a Permitted Business. Pending the final application of any Net Proceeds, the Company may temporarily reduce borrowings under the Working Capital Facility or otherwise invest the Net Proceeds in any manner that is not prohibited by this Indenture. Any Net Proceeds from Asset Sales that are not applied or invested as provided in the second paragraph of this covenant will constitute “Excess Proceeds.” When the aggregate amount of Excess Proceeds exceeds $5.0 million, the Company will, within five (5) days thereof, make an Asset Sale Offer to all Holders and all holders of other senior secured Indebtedness that is pari passu in right of payment and as to security interests with the Notes with respect to the assets that are the subject of such Asset Sale 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 amount of Notes and such other pari passu Indebtedness that may be purchased out of the Excess Proceeds in accordance with the procedures set forth in Section 3.09 hereof. The offer price for the Notes in any Asset Sale Offer will be equal to 100% of the aggregate principal amount of the Notes, plus accrued and unpaid interest to the date of purchase, and will be payable in cash. If any Excess Proceeds remain after consummation of an Asset Sale Offer, the Company may use those Excess Proceeds for any purpose not otherwise prohibited by this Indenture. If the aggregate principal amount of Notes and the amount of other pari passu Indebtedness tendered into such Asset Sale Offer exceeds the amount of Excess Proceeds, the Trustee shall select the Notes and such other pari passu Indebtedness to be purchased on a pro rata basis. Upon completion of each Asset Sale Offer, the amount of Excess Proceeds will be reset at zero.following uses:
Appears in 1 contract
Samples: Indenture
Limitation on Asset Sales. (a) The Company will not, and will not permit any of its Restricted Subsidiaries Subsidiary to, consummate an engage in any Asset Sale unless:
unless (1i) such Asset Sale is for not less than the fair market value of the assets sold (as determined in good faith by the Board of Directors of the Company, whose determination shall be conclusive and evidenced by a Board Resolution) and (ii) the consideration received by the Company or the relevant Restricted Subsidiary, as the case may be, receives consideration at the time Subsidiary in respect of the such Asset Sale consists of at least equal to 75% cash or Cash Equivalents; provided that the Fair Market Value of the assets or Equity Interests issued or sold or otherwise disposed of; and
(2) at least 85% of the Company and its Restricted Subsidiaries may engage in Asset Sales for consideration received not in the Asset Sale by the Company or form of Cash Equivalents in amounts in excess of that permitted in this clause (ii), so long as (x) such Restricted Subsidiary excess consideration is in the form of cash. For purposes Fully Traded Common Stock, (y) the aggregate fair market value of such Fully Traded Common Stock received by the Company and its Restricted Subsidiaries (measured as of the date of receipt) from all Asset Sales in reliance on this proviso since the date of the Indenture that has not been converted into cash or Cash Equivalents does not exceed $10,000,000 and (z) any Fully Traded Common Stock that is converted into cash or Cash Equivalents shall be applied as provided in paragraphs (b) and (c) of this Section 5.10, each of the following will be deemed to be cash:1016.
(1b) any liabilities, as shown on the Company’s most recent consolidated balance sheet, of If the Company or any Subsidiary (other than contingent liabilities and Indebtedness that are (x) by their terms subordinated to the Notes or any Note Guarantee, (y) unsecured, or (z) secured by a Lien on the assets or rights that are the subject of the Asset Sale, which Lien is junior in priority to the Liens securing the Notes or any Note Guarantee) that are assumed by the transferee of any such assets pursuant to a customary novation agreement that releases the Company or such Subsidiary from further liability;
(2) 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, to the extent of the cash received engages in that conversion; and
(3) any stock or assets of the kind referred to in clauses (2) or (4) of the next paragraph of this covenant. Within 365 days after the receipt of any Net Proceeds from an Asset Sale, the Company may use the Net Cash Proceeds thereof, within 12 months after such Asset Sale, to (i) repay or the applicable Restricted Subsidiary, as the case may be) may apply such Net Proceeds:
(1) to repay prepay any then outstanding Indebtedness and other Obligations under the Working Capital Facility and to correspondingly permanently reduce commitments with respect thereto;
(2) to acquire all or substantially all of the assets of, or any Capital Stock of, another Permitted Business, if, after giving effect to any such acquisition of Capital Stock, the Permitted Business is or becomes (x) a Restricted Subsidiary of the Company and (y) a Guarantor;
(3) to make capital expenditures in a Permitted Business or Indebtedness of any Guarantor (other than Equity Interests, Indebtedness or current assets); or
(4) to acquire other assets (other than Equity Interests or Subordinated Indebtedness) or (ii) invest (or enter into a legally binding agreement to invest) in properties and assets to replace the properties and assets that are not classified as current were the subject of the Asset Sale or in properties and assets under GAAP and that are will be used or useful in a Permitted Business. Pending the final application of If any such legally binding agreement to invest such Net ProceedsCash Proceeds is terminated, then the Company may temporarily reduce borrowings under the Working Capital Facility may, within 90 days of such termination or otherwise within 12 months of such Asset Sale, whichever is later, invest the such Net Cash Proceeds in any manner that is not prohibited by this Indenture. Any Net Proceeds from Asset Sales that are not applied or invested as provided in clause (i) or (ii) (without regard to the second paragraph parenthetical contained in such clause (ii)) above. The amount of this covenant will constitute “such Net Cash Proceeds not so used as provided in clauses (i) and (ii) above constitutes "Excess Proceeds.” "
(c) When the aggregate amount of Excess Proceeds exceeds $5.0 million10,000,000, the Company willshall, within five (5) days thereof15 Business Days, make an Asset Sale Offer offer to all Holders and purchase (an "Excess Proceeds Offer") from all holders of other senior secured Indebtedness that is pari passu in right Securities and from the holders of payment and as to security interests with the Notes with respect Pari Passu Indebtedness, if any, to the assets that are extent required by the subject of such Asset Sale 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 amount of Notes and such other pari passu Indebtedness that may be purchased out of the Excess Proceeds terms thereof, on a pro rata basis, in accordance with the procedures set forth in Section 3.09 hereofbelow, the maximum amount principal of (expressed as a multiple of $90,000) of Securities, and any Cumulative Deferred Amount and Pari Passu Indebtedness, if any, that may be purchased with the Excess Proceeds. The offer price as to each Security and Pari Passu Indebtedness, if any, shall be payable in cash in an amount equal to the sum of 100% of the principal amount of such Security plus any Cumulative Deferred Amount and Pari Passu Indebtedness, if any, plus accrued and unpaid interest, if any, to the date such Excess Proceeds Offer is consummated. To the extent that the aggregate principal amount of Securities and Pari Passu Indebtedness, if any, tendered pursuant to an Excess Proceeds Offer is less than the Excess Proceeds, the Company may use such deficiency for general corporate purposes. If the Notes in aggregate principal amount of Securities plus any Asset Sale Offer Cumulative Deferred Amount and Pari Passu Indebtedness, if any, validly tendered and not withdrawn by holders thereof exceeds the Excess Proceeds, Securities plus any Cumulative Deferred Amount and Pari Passu Indebtedness, if any, to be purchased will be equal to 100% selected on a pro rata basis on the basis of the sum of the aggregate principal amount of the Notestendered Securities plus any Cumulative Deferred Amount and Pari Passu Indebtedness, plus accrued and unpaid interest to the date of purchase, and will be payable in cash. If any Excess Proceeds remain after consummation of an Asset Sale Offer, the Company may use those Excess Proceeds for any purpose not otherwise prohibited by this Indenture. If the aggregate principal amount of Notes and the amount of other pari passu Indebtedness tendered into such Asset Sale Offer exceeds the amount of Excess Proceeds, the Trustee shall select the Notes and such other pari passu Indebtedness to be purchased on a pro rata basisif any. Upon completion of each Asset Sale Offersuch offer to purchase, the amount of Excess Proceeds will shall be reset at to zero.
Appears in 1 contract
Limitation on Asset Sales. The Company will not, and will not permit any of its Restricted Subsidiaries to, consummate an Asset Sale unless:
(1) the Company (or the Restricted Subsidiary, as the case may be, ) receives consideration at the time of the Asset Sale at least equal to the Fair Market Value of the assets or Equity Capital Interests issued or sold or otherwise disposed of; and
(2) at least 8575% of the consideration received in the Asset Sale by the Company or such Restricted Subsidiary is in the form of cashcash or Eligible Cash Equivalents. For purposes of this Section 5.10provision, each of the following will be deemed to be cash:
(1a) any liabilities, as shown on the Company’s most recent consolidated balance sheet, sheet of the Company or any Restricted Subsidiary (other than contingent liabilities and Indebtedness liabilities that are (x) by their terms subordinated to the Notes or any Note Guarantee, (y) unsecured, or (z) secured by a Lien on the assets or rights that are the subject of the Asset Sale, which Lien is junior in priority to the Liens securing the Notes or any Note Guarantee) that are assumed by the transferee of any such assets pursuant to a customary novation assignment and assumption agreement that releases the Company or such Restricted Subsidiary from further liability;
(2b) 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, cash within 180 days of their receipt to the extent of the cash received in that conversion; and
(3c) any stock Designated Noncash Consideration received by the Company or assets any of its Restricted Subsidiaries in such Asset Sale having an aggregate fair market value, taken together with all other Designated Noncash Consideration received pursuant to this clause (c) that is at that time outstanding, not to exceed the greater of (x) $20.0 million and (y) 4.0% of the kind referred Company’s total tangible assets at the time of 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 clauses (2) or (4) of the next paragraph of this covenantvalue). Within 365 360 days after the receipt of any Net Cash Proceeds from an Asset Sale, the Company (or the applicable Restricted Subsidiary, as the case may be) may apply such Net ProceedsCash Proceeds at its option:
(1) to permanently repay Indebtedness and other Obligations Debt under the Working Capital Facility and Credit Agreement and, if the Obligation repaid is revolving credit Debt, to correspondingly permanently reduce commitments with respect thereto;
(2) to acquire all or substantially all of the assets of, or any Capital Stock Interests of, another Permitted Business, if, after giving effect to any such acquisition of Capital StockInterests, the Permitted Business is or becomes (x) a Restricted Subsidiary of the Company and (y) a GuarantorCompany;
(3) to make a capital expenditures expenditure in or that is used or useful in a Permitted Business (other than Equity Interests, Indebtedness or current assets); orBusiness;
(4) to acquire other assets (other than Equity Interests or Indebtedness) that are not classified as current assets under GAAP and that are used or useful in a Permitted Business; or
(5) any combination of the foregoing. Pending Notwithstanding the final application foregoing provisions of any Net Proceedsthis paragraph, if during the 360-day period described in this paragraph, the Company may temporarily reduce borrowings under or a Restricted Subsidiary enters into a binding agreement committing it to apply such Net Cash Proceeds of any Asset Sale in the Working Capital Facility or otherwise invest manner described in clauses (1)-(5) above of this paragraph, such 360-day period will be extended with respect to the amount of Net Cash Proceeds so committed until such Net Cash Proceeds are required to be applied in any manner that is not prohibited by this Indentureaccordance with such agreement (or, if earlier, until termination of such agreement) but such extension will in no event be for a period longer than 180 days. Any Net Cash Proceeds from Asset Sales that are not applied or invested as provided in the second preceding paragraph of this covenant Section 4.10 will constitute “Excess Proceeds.” When the aggregate amount of Excess Proceeds exceeds $5.0 10.0 million, within thirty days thereof, the Company will, within five (5) days thereof, will make an Asset Sale Offer to Purchase to all Holders of Notes, and to all holders of other senior secured Indebtedness that is Debt ranking pari passu in right of payment and as to security interests with the Notes with respect to the assets that are the subject of such Asset Sale containing provisions similar to those set forth in this Indenture with respect to offers assets sales, equal to purchase or redeem with the proceeds of sales of assets to purchase the maximum amount of Notes and such other pari passu Indebtedness that may be purchased out of the Excess Proceeds in accordance with the procedures set forth in Section 3.09 hereofProceeds. The offer price for the Notes in any Asset Sale Offer to Purchase will be equal to 100% of the aggregate principal amount of the Notes, plus accrued and unpaid interest to the date of purchase, and will be payable in cash. If any Excess Proceeds remain after consummation of an Asset Sale OfferOffer to Purchase, the Company may use those Excess Proceeds for any purpose not otherwise prohibited by this the Indenture. If the aggregate principal amount of Notes and the amount of other pari passu Indebtedness Debt tendered into in such Asset Sale Offer to Purchase exceeds the amount of Excess Proceeds, the Trustee shall will select the Notes and such other pari passu Indebtedness to be purchased on a pro rata basis. Upon completion of each Asset Sale OfferOffer to Purchase, the amount of Excess Proceeds will be reset at zero. The Company will comply with the requirements of Rule 14e-1 under the Exchange Act and any other applicable securities laws and regulations thereunder to the extent those laws and regulations are applicable in connection with each repurchase of Notes pursuant to an Offer to Purchase. To the extent that the provisions of any securities laws or regulations conflict with the Asset Sale provisions of this Indenture, the Company will comply with the applicable securities laws and regulations and will not be deemed to have breached its obligations under the Asset Sale provisions of this Indenture by virtue of such compliance. Pending the final application of any Net Cash Proceeds, the Company may temporarily reduce revolving credit borrowings or otherwise invest and use such Net Cash Proceeds in any manner that is not prohibited by the Indenture.
Appears in 1 contract
Samples: Indenture (PNA Group Holding CORP)
Limitation on Asset Sales. The Company will not, and will not permit any of its Restricted Subsidiaries to, consummate an Asset Sale unless:
(1) the Company (or the Restricted Subsidiary, as the case may be, ) receives consideration at the time of the Asset Sale at least equal to the Fair Market Value of the assets or Equity Capital Interests issued or sold or otherwise disposed of; and
(2) at least 8575% of the consideration received in the Asset Sale by the Company or such Restricted Subsidiary is in the form of cashcash or Eligible Cash Equivalents. For purposes of this Section 5.10provision, each of the following will be deemed to be cash:
(1a) any liabilities, as shown on the Company’s most recent consolidated balance sheet, sheet of the Company or any Restricted Subsidiary (other than contingent liabilities and Indebtedness liabilities that are (x) by their terms subordinated to the Notes or any Note Guarantee, (y) unsecured, or (z) secured by a Lien on the assets or rights that are the subject of the Asset Sale, which Lien is junior in priority to the Liens securing the Notes or any Note Guarantee) that are assumed by the transferee of any such assets pursuant to a customary novation assignment and assumption agreement that releases the Company or such Restricted Subsidiary from further liabilityliability with respect thereto;
(2b) 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, cash within 450 days of their receipt to the extent of the cash received in that conversion; and
(3c) any stock Designated Non-cash Consideration received by the Company or assets any such Restricted Subsidiary in such Asset Sale having an aggregate Fair Market Value, taken together with all other Designated Non-cash Consideration received pursuant to this clause (c) that is at that time outstanding, not to exceed the greater of $50.0 million and 5% of the kind referred to in clauses (2) or (4) Consolidated Net Tangible Assets of the next paragraph Company and its Restricted Subsidiaries at the time of this covenantthe receipt of such Designated Non-cash Consideration, with the Fair Market Value of each item of Designated Non-cash Consideration being measured at the time received and without giving effect to subsequent changes in value. Within 365 360 days after the receipt of any Net Cash Proceeds from an Asset Sale, the Company (or the applicable Restricted Subsidiary, as the case may be) may apply such Net ProceedsCash Proceeds at its option:
(1i) to permanently repay Indebtedness and other Obligations Debt under the Working Capital Facility and Credit Facilities and, if the Obligation repaid is revolving credit Debt, to correspondingly permanently reduce commitments with respect thereto;
(2ii) to acquire all or substantially all of the assets of, or any Capital Stock Interests of, another Permitted Business, if, after giving effect to any such acquisition of Capital StockInterests, the Permitted Business is or becomes (x) a Restricted Subsidiary of the Company and (y) a GuarantorCompany;
(3iii) to make capital expenditures in or that are used or useful in a Permitted Business (other than Equity Interestsor to make expenditures for maintenance, Indebtedness repair or current assets); orimprovement of existing properties and assets in accordance with the provisions of this Indenture;
(4iv) to acquire other assets (other than Equity Interests or Indebtednessinventory) that are not classified as current assets under GAAP and that are used or useful in a Permitted Business. Pending ;
(v) to repay or repurchase Debt secured by the final application assets of any Net Proceeds, the Company may temporarily reduce borrowings under or any Restricted Subsidiaries; or
(vi) any combination of the Working Capital Facility or otherwise invest the Net Proceeds in any manner that is not prohibited by this Indentureforegoing. Any Net Cash Proceeds from Asset Sales that are not applied or invested as provided in the second preceding paragraph of this covenant Section 4.10 will constitute “Excess Proceeds.” When the aggregate amount of Excess Proceeds exceeds $5.0 100.0 million, the Company will, within five (5) days thereof30 days, make an Asset Sale Offer to Purchase to all Holders of Notes (on a pro rata basis among each series of Notes), and to all holders of other senior secured Indebtedness that is Debt ranking pari passu in right of payment and as to security interests with the Notes with respect to the assets that are the subject of such Asset Sale containing provisions similar to those set forth in this Indenture with respect to offers assets sales, equal to purchase or redeem with the proceeds of sales of assets to purchase the maximum amount of Notes and such other pari passu Indebtedness that may be purchased out of the Excess Proceeds in accordance with the procedures set forth in Section 3.09 hereofProceeds. The offer price for the Notes in any Asset Sale Offer to Purchase will be equal to 100% of the aggregate principal amount of the Notes, plus accrued and unpaid interest to the date of purchase, and will be payable in cash. If any Excess Proceeds remain after consummation of an Asset Sale OfferOffer to Purchase, the Company may use those Excess Proceeds funds for any purpose not otherwise prohibited by this IndentureIndenture and they will no longer constitute Excess Proceeds. If the aggregate principal amount of Notes and the amount of other pari passu Indebtedness Debt tendered into such Asset Sale Offer to Purchase exceeds the amount of Excess Proceeds, the Trustee shall Trustee, upon receipt of a Company Order, will select the Notes and such other pari passu Indebtedness to be purchased on a pro rata basisbasis among each series of Notes. Upon completion of each Asset Sale OfferOffer to Purchase, the amount of Excess Proceeds will be reset at zero. The Company will comply with the requirements of Rule 14e-1 under the Exchange Act and any other applicable securities laws and regulations thereunder to the extent those laws and regulations are applicable in connection with each repurchase of Notes pursuant to an Offer to Purchase. To the extent that the provisions of any securities laws or regulations conflict with the Asset Sale provisions of this Indenture, the Company will comply with the applicable securities laws and regulations and will be deemed to have complied with its obligations under the Asset Sale provisions of this Indenture by virtue of such compliance.
Appears in 1 contract
Samples: Indenture (Oshkosh Corp)
Limitation on Asset Sales. (a) The Company will shall not, and will shall not permit any of its Restricted Subsidiaries Subsidiary to, consummate an make any Asset Sale unless:
unless (1i) the Company or the such Restricted Subsidiary, as the case may be, receives consideration at the time of the such Asset Sale at least equal to the Fair Market Value fair market value (as 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 other property sold or otherwise disposed of; and
(2) at least 85% of the consideration received in the Asset Sale and (ii) at least 75% of such consideration consists of either cash or Cash Equivalents; provided, however, that for purposes of this Section 4.16, "cash" shall include (x) the amount of any Indebtedness (other than any Indebtedness that is by its terms subordinated to the Notes) of the Company or such Restricted Subsidiary is in the form of cash. For purposes of this Section 5.10, each of the following will be deemed to be cash:
(1) any liabilities, as shown on the Company’s 's or such Restricted Subsidiary's most recent consolidated balance sheet, of sheet or in the Company or any Subsidiary (other than contingent liabilities and Indebtedness notes thereto that are (x) by their terms subordinated to the Notes or any Note Guarantee, (y) unsecured, or (z) secured by a Lien on the assets or rights that are the subject of the Asset Sale, which Lien is junior in priority to the Liens securing the Notes or any Note Guarantee) that are assumed by the transferee of any such assets pursuant or other property in such Asset Sale (and excluding any liabilities that are incurred in connection with or in anticipation of such Asset Sale), but only to the extent that such assumption is effected on a customary novation agreement basis such that releases there is no further recourse to the Company or any of the Restricted Subsidiaries with respect to such Subsidiary from further liability;
liabilities and (2y) any securitiesnotes, notes obligations or other obligations securities received by the Company or any such Restricted Subsidiary from such transferee that are contemporaneously, subject to ordinary settlement periods, converted within 60 days by the Company or such Restricted Subsidiary into cash, cash (to the extent of the cash received in that conversion; andreceived).
(3b) Within one year after any stock or assets of the kind referred to in clauses (2) or (4) of the next paragraph of this covenant. Within 365 days after the receipt of any Net Proceeds from an Asset Sale, the Company (or the applicable Restricted Subsidiary, as Subsidiary may elect to apply the case may beNet Proceeds from such Asset Sale to (a) may apply such Net Proceeds:
(1) to repay Indebtedness and other Obligations under the Working Capital Facility and to correspondingly permanently reduce commitments with respect thereto;
(2) to acquire all or substantially all of the assets of, or any Capital Stock of, another Permitted Business, if, after giving effect to any such acquisition of Capital Stock, the Permitted Business is or becomes (x) a Restricted Subsidiary Senior Bank Debt of the Company and/or (b) make an investment in, or acquire assets and (y) properties that will be used in, a Guarantor;
(3) to make capital expenditures in a Permitted Business (other than Equity Interests, Indebtedness or current assets); or
(4) to acquire other assets (other than Equity Interests or Indebtedness) that are not classified as current assets under GAAP and that are used or useful in a Permitted Related Business. Pending the final application of any such Net Proceeds, the Company or any Restricted Subsidiary may temporarily reduce borrowings under the Working Capital Facility or otherwise invest the such Net Proceeds in any manner that is not prohibited by this IndentureInvestments described under clauses (i) through (iii) of the definition of Permitted Investments. Any Net Proceeds from an Asset Sales that are Sale not applied or invested as provided in the second paragraph first sentence of this covenant Section 4.16(b) within one year of such Asset Sale will be deemed to constitute “"Excess Proceeds.” When "
(c) Each date that the aggregate amount of Excess Proceeds exceeds $5.0 million, the Company will, within five (5) days thereof, make in respect of which an Asset Sale Offer to all Holders and all holders of other senior secured Indebtedness that is pari passu in right of payment and (as to security interests with the Notes with respect to the assets that are the subject of such defined below) has not been made exceeds $10.0 million shall be deemed an "Asset Sale containing provisions similar to those set forth Offer Trigger Date." As soon as practicable, but in this Indenture with respect to offers to purchase or redeem with no event later than 20 business days after each Asset Sale Offer Trigger Date, the proceeds of sales of assets Company shall commence an offer (an "Asset Sale Offer") to purchase the maximum principal amount of Notes and such other pari passu Indebtedness that may be purchased out of the Excess Proceeds in accordance with the procedures set forth in Section 3.09 hereofProceeds. The offer price for the Any Notes in any to be purchased pursuant to an Asset Sale Offer will shall be purchased pro rata based on the aggregate principal amount of Notes outstanding, and all Notes shall be purchased at an offer price in cash in an amount equal to 100% of the aggregate principal amount of the Notesthereof, plus accrued and unpaid interest interest, if any, to the date of purchase, and will be payable in cash. If To the extent that any Excess Proceeds remain after consummation completion of an Asset Sale Offer, the Company may use those Excess Proceeds the remaining amount for any purpose not general corporate purposes otherwise prohibited permitted by this Indenture. If Upon the aggregate principal amount consummation of Notes and the amount of other pari passu Indebtedness tendered into such Asset Sale Offer exceeds the amount of Excess Proceeds, the Trustee shall select the Notes and such other pari passu Indebtedness to be purchased on a pro rata basis. Upon completion of each any Asset Sale Offer, the amount of Excess Proceeds shall be deemed to be reset to zero.
(d) Notice of an Asset Sale Offer shall be mailed, by first-class mail (with a copy to the Trustee), by the Company not later than the 20th business day after the related Asset Sale Offer Trigger Date to each Holder of Notes at such Holder's registered address, stating: (i) that an Asset Sale Offer Trigger Date has occurred and that the Company is offering to purchase the maximum principal amount of Notes that may be purchased out of the Excess Proceeds (to the extent provided in the immediately preceding paragraph), at an offer price in cash in an amount equal to 100% of the principal amount thereof, plus accrued and unpaid interest, if any, to the date of the purchase (the "Asset Sale Offer Purchase Date"), which shall be a business day, specified in such notice, that is not earlier than 30 days or later than 60 days from the date such notice is mailed, (ii) the amount of accrued and unpaid interest, if any, as of the Asset Sale Offer Purchase Date, (iii) that any Note not tendered will continue to accrue interest, (iv) that, unless the Company defaults in the payment of the purchase price for the Notes payable pursuant to the Asset Sale Offer, any Notes accepted for payment pursuant to the Asset Sale Offer shall cease to accrue interest after the Asset Sale Offer Purchase Date, (v) that Holders electing to have a Note purchased pursuant to a Asset Sale Offer will be reset required to surrender the Note, with the form entitled "Option of Holder to Elect Purchase" on the reverse of the Note completed, to the Paying Agent at zerothe address specified in the notice prior to the close of business on the third Business Day prior to the Asset Sale Offer Purchase Date, (vi) that Holders will be entitled to withdraw their election if the Paying Agent receives, not later than the second Business Day prior to the Asset Sale Offer Purchase Date, a facsimile transmission or letter setting forth the name of the Holder, the principal amount of the Notes the Holder delivered for purchase and a statement that such Xxxxxx is withdrawing his election to have such Note purchased, (vii) that Holders whose Notes are purchased only in part will be issued new Notes in a principal amount equal to the unpurchased portion of the Notes surrendered; provided, however, that each Note purchased and each new Note issued shall be in an original principal amount of $1,000 or integral multiples thereof, and (viii) such other information as may be required by applicable laws and regulations.
(e) On the Asset Sale Offer Purchase Date, the Company will (i) accept for payment the maximum principal amount of Notes or portions thereof tendered pursuant to the Asset Sale Offer that can be purchased out of Excess Proceeds from such Asset Sale that are to be applied to an Asset Sale Offer, (ii) deposit with the Paying Agent U.S. Legal Tender sufficient to pay the aggregate purchase price of all Notes or portions thereof accepted for payment, and (iii) deliver or cause to be delivered to the Trustee all Notes tendered pursuant to the Asset Sale Offer. If less than all Notes tendered pursuant to the Asset Sale Offer are accepted for payment by the Company for any reason consistent with this Indenture, selection of the Notes to be purchased by the Company shall be in compliance with the requirements of the principal national securities exchange, if any, on which the Notes are listed or, if the Notes are not so listed, on a pro rata basis or by lot; provided, however, that Notes accepted for payment in part shall only be purchased in integral multiples of $1,000. The Paying Agent shall promptly mail to each Holder of Notes or portions thereof accepted for payment an amount equal to the purchase price for such Notes plus accrued and unpaid interest, if any, thereon, and the Trustee shall promptly authenticate and mail to such Holder of Notes accepted for payment in part a new Note equal in principal amount to any unpurchased portion of the Notes, and any Note not accepted for payment in whole or in part shall be promptly returned to the Holder of such Note. On and after an Asset Sale Offer Purchase Date, interest will cease to accrue on the Notes or portions thereof accepted for payment, unless the Company defaults in the payment of the purchase price therefor. The Company will publicly announce the results of the Asset Sale Offer on or as soon as practicable after the Asset Sale Offer Purchase Date.
(f) This Section 4.16 will not apply to a transaction consummated in compliance with Article Five.
(g) The Company will comply with the applicable tender offer rules, including the requirements of Section 14(e) and Rule 14e-1 under the Exchange Act, and all other applicable securities laws and regulations in connection with any Asset Sale Offer and will be deemed not to be in violation of any of the covenants under this Indenture to the extent such compliance is in conflict with such covenants.
Appears in 1 contract
Samples: Indenture (Icn Pharmaceuticals Inc)
Limitation on Asset Sales. The Neither the Company nor any Guarantor will not, and will not permit make any of its Restricted Subsidiaries to, consummate an Asset Sale unlessunless the following conditions are met:
(1) the Company or the Restricted SubsidiaryThe Asset Sale is for fair market value, as determined in good faith by the case may be, receives consideration at the time Board of the Asset Sale at least equal to the Fair Market Value of the assets or Equity Interests issued or sold or otherwise disposed of; andDirectors.
(2) at At least 8575% of the consideration consists of Cash Equivalents received in at closing or Replacement Assets (provided such Replacement Assets or Equity Interests of any direct Subsidiary that directly or indirectly owns such Replacement Assets are pledged as Collateral pursuant to the Asset Sale by the Company or such Restricted Subsidiary is in the form of cashSecurity Documents). For purposes of this Section 5.10, each of the following will be deemed to be cash:clause (2):
(1A) any liabilities, as shown on the Company’s most recent consolidated balance sheet, assumption by the purchaser of Debt or other obligations (other than Subordinated Debt) of the Company or any Subsidiary (other than contingent liabilities and Indebtedness that are (x) by their terms subordinated to the Notes or any Note Guarantee, (y) unsecured, or (z) secured by a Lien on the assets or rights that are the subject of the Asset Sale, which Lien is junior in priority to the Liens securing the Notes or any Note Guarantee) that are assumed by the transferee of any such assets Guarantor pursuant to a customary novation agreement agreement,
(B) instruments or securities received from the purchaser that releases are promptly, but in any event within 120 days of the closing, converted by the Company or such Subsidiary from further liability;to Cash Equivalents, to the extent of the Cash Equivalents actually so received, and
(2C) any securities, notes or other obligations Designated Non-cash Consideration received by the Company or any Guarantor in such Restricted Asset Sale having an aggregate fair market value, taken together with all other Designated Non-cash Consideration received pursuant to this clause (C) that is at that time outstanding, not to exceed $10,000,000 at the time of the receipt of such Designated Non-cash Consideration (with the fair market value of each item of Designated Non-cash Consideration being measured at the time received and without giving effect to subsequent changes in value) (provided such assets or Equity Interests of any direct Subsidiary from that directly or indirectly owns such transferee that assets are contemporaneously, subject to ordinary settlement periods, converted by the Company or such Restricted Subsidiary into cash, pledged as Collateral pursuant to the extent of the cash Security Documents) shall be considered Cash Equivalents received in that conversion; andat closing.
(3) any stock or assets of the kind referred to in clauses (2) or (4) of the next paragraph of this covenant. Within 365 420 days after the receipt of any Net Cash Proceeds from an Asset Sale, the Company (or the applicable Restricted Subsidiary, as the case Net Cash Proceeds may be) may apply such Net Proceeds:be used
(1) to repay Indebtedness and other Obligations under the Working Capital Facility and to correspondingly permanently reduce commitments with respect thereto;
(2A) to acquire all or substantially all of the assets ofof an operating business, a majority of the Voting Stock of another Person that thereupon becomes a Subsidiary engaged in an operating business or any Capital Stock ofto make other Investments in Persons other than Permitted Holders in the ordinary course of business (collectively, another Permitted Business“Replacement Assets”), if, after giving effect or
(B) to any such acquisition of Capital Stockmake a capital contribution to a Subsidiary, the Permitted Business is or becomes (x) a Restricted proceeds of which are used by such Subsidiary of the Company and (y) a Guarantor;
(3) to purchase an operating business, to make capital expenditures or otherwise acquire long-term assets that are to be used in a Permitted Business an operating business (which assets or Voting Stock shall be pledged as Collateral) or to make other Investments in Persons other than Equity InterestsPermitted Holders in the ordinary course of business. Following the entering into of a binding agreement with respect to an Asset Sale and prior to the consummation thereof, Indebtedness Cash Equivalents (whether or current assetsnot actual Net Cash Proceeds of such Asset Sale) used for the purposes described in this clause (3) that are designated as uses in accordance with this clause (3); or, and not previously or subsequently so designated in respect of any other Asset Sale, shall be deemed to be Net Cash Proceeds applied in accordance with this clause (3).
(4) to acquire other assets (other than Equity Interests or Indebtedness) that are not classified as current assets under GAAP and that are used or useful in a Permitted Business. Pending the final application The Net Cash Proceeds of any Net Proceeds, the Company may temporarily reduce borrowings under the Working Capital Facility or otherwise invest the Net Proceeds in any manner that is not prohibited by this Indenture. Any Net Proceeds from an Asset Sales that are Sale not applied or invested as provided in pursuant to clause (3) within 420 days of the second paragraph of this covenant will Asset Sale constitute “Excess Proceeds.” When ”. Excess Proceeds of less than $2,000,000 will be carried forward and accumulated; provided that until the aggregate amount of Excess Proceeds equals or exceeds $5.0 million20,000,000, all or any portion of such Excess Proceeds may be used or invested in the manner described in clause (3) above and such invested amount shall no longer be considered Excess Proceeds. When accumulated Excess Proceeds equals or exceeds such amount, the Company willmust, within five (5) days thereof30 days, make an Asset Sale Offer to all Holders Purchase Notes having a principal amount equal to
(A) accumulated Excess Proceeds, multiplied by
(B) a fraction (x) the numerator of which is equal to the outstanding principal amount of the Notes and (y) the denominator of which is equal to the outstanding principal amount of the Notes and all holders Pari-Passu Obligations secured by Liens on the Collateral and owed to anyone other than the Company, a Subsidiary of other senior secured Indebtedness that is pari passu the Company or any Permitted Holder similarly required to be repaid, redeemed or tendered for in right of payment and as to security interests connection with the Notes with respect Asset Sale, rounded down to the assets that are nearest $1,000. If the subject Offer to Purchase is for less than all of such Asset Sale 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 amount of outstanding Notes and such other pari passu Indebtedness that may be purchased out Notes in an aggregate principal amount in excess of the Excess Proceeds purchase amount are tendered and not withdrawn pursuant to the offer, the Company will purchase Notes having an aggregate principal amount equal to the purchase amount on a pro rata basis, by lot or any other method that the Trustee in accordance its sole discretion deems fair and appropriate with the procedures set forth adjustments so that only Notes in Section 3.09 hereofmultiples of $1,000 principal amount will be purchased. The offer purchase price for the Notes in any Asset Sale Offer will be equal to 100% of the aggregate principal amount of the Notes, plus accrued and unpaid interest to the date of purchase. Upon completion of the Offer to Purchase, Excess Proceeds will be reset at zero, and will be payable in cash. If any Excess Proceeds remain remaining after consummation of an Asset Sale Offer, the Company Offer to Purchase may use those Excess Proceeds be used for any purpose not otherwise prohibited by this the Indenture. If the aggregate principal amount of Notes and the amount of other pari passu Indebtedness tendered into such Asset Sale Offer exceeds the amount of Excess Proceeds, the Trustee shall select the Notes and such other pari passu Indebtedness to be purchased on a pro rata basis. Upon completion of each Asset Sale Offer, the amount of Excess Proceeds will be reset at zero.
Appears in 1 contract
Samples: Indenture (Harbinger Group Inc.)
Limitation on Asset Sales. The Company will not, and will not permit any of its Restricted Subsidiaries to, consummate an Asset Sale unless:
(1) the Company or the applicable Restricted Subsidiary, as the case may be, receives consideration at the time of the such Asset Sale at least equal to the Fair Market Value of the assets or Equity Interests issued or sold or otherwise disposed of; anddisposed;
(2) at least 8575% of the consideration received by the Company or the Restricted Subsidiary, as the case may be, from such Asset Sale is in the Asset Sale by form of cash or Cash Equivalents and is received at the time of such disposition; provided that the amount of any liabilities (as shown on the most recent applicable balance sheet) of the Company or such Restricted Subsidiary is in the form of cash. For purposes of this Section 5.10, each of the following will be deemed to be cash:
(1) any liabilities, as shown on the Company’s most recent consolidated balance sheet, of the Company or any Subsidiary (other than contingent liabilities and Indebtedness that are (x) by their terms subordinated to the Notes or any Note Guarantee, (y) unsecured, or (z) secured by a Lien on the assets or rights that are the subject of the Asset Sale, which Lien is junior in priority to the Liens securing the Notes or any Note GuaranteeNotes) that are assumed by the transferee of any such assets pursuant shall be deemed to a customary novation agreement be cash for purposes of this provision so long as the documents governing such liabilities provide that releases the Company or such Subsidiary from there is no further liability;
(2) any securities, notes or other obligations received by recourse to the Company or any of its Subsidiaries with respect to such liabilities; and
(3) the Company shall apply, or cause such Restricted Subsidiary from to apply, the Net Cash Proceeds relating to such transferee Asset Sale within 360 days of receipt thereof either:
(a) to repay (i) Permitted Indebtedness of the Company or any Restricted Subsidiary of the type described in (A) clause (3) of the definition thereof that is secured by Permitted Liens of the type described in clause (14) of the definition thereof, (B) clause (10) of the definition thereof that is secured by Permitted Liens of the type described in clause (6) or (7) of the definition thereof, or (C) clause (11) of the definition thereof that is secured by Permitted Liens of the type described in clause (17) of the definition thereof or (ii) Indebtedness of the type described in clause (13) of the definition of the term Permitted Liens that is secured by Permitted Liens of the type described in clause (13) of the definition thereof, in each case, to the extent such Indebtedness is not by its terms subordinated to the Notes or the Guarantees and such Permitted Liens are contemporaneouslynot subordinated to Permitted Liens of the type describe in clause (15) of the definition thereof;
(b) to the extent that the assets and property sold pursuant to such Asset Sale constitute Shared Collateral of (i) the Company or any Guarantor (other than the Railway Subsidiary), to repay Indebtedness under the Credit Agreement or (ii) the Railway Subsidiary, to repay (A) Indebtedness under the Credit Agreement (and permanently reduce the commitments thereunder) or (B) the Railway Term Loan;
(c) to make (or enter into a definitive agreement committing to do so within 180 days after the date that is 360 days following the date of receipt of such Net Cash Proceeds) an investment in property, plant, equipment or other non-current assets that replace the properties and assets that were the subject of such Asset Sale or that will be used or useful in a Permitted Business (including expenditures for maintenance, repair or improvement of existing properties and assets) or the acquisition of all of the Capital Stock of a Person engaged in a Permitted Business; or
(d) a combination of repayment and investment permitted by the foregoing clauses (3)(a), (3)(b) and (3)(c). Pending the final application of Net Cash Proceeds, the Company may temporarily reduce revolving credit borrowings or invest such Net Cash Proceeds in Cash Equivalents. On the 361st day after its receipt of Net Cash Proceeds relating to an Asset Sale or such earlier date, if any, as the Board of Directors of the Company or of such Restricted Subsidiary determines not to apply such Net Cash Proceeds as set forth in clauses (3)(a), 3(b), 3(c) or 3(d) of the preceding paragraph (each, a ”Net Proceeds Offer Trigger Date”) (but subject to ordinary settlement periodsclause (y) of the proviso in this sentence), converted such aggregate amount of Net Cash Proceeds which have not been applied on or before such Net Proceeds Offer Trigger Date as permitted in clauses (3)(a), (3)(b), (3)(c) and 3(d) of the preceding paragraph (each a ”Net Proceeds Offer Amount”) shall be applied by the Company or such Restricted Subsidiary into cash, to make an offer to purchase (the extent of the cash received in that conversion; and
(3) any stock or assets of the kind referred to in clauses (2) or (4) of the next paragraph of this covenant. Within 365 days after the receipt of any “Net Proceeds from an Asset Sale, Offer”) on a date (the Company (or “Net Proceeds Offer Payment Date”) not less than 30 nor more than 60 days following the applicable Restricted Subsidiary, as the case may be) may apply such Net Proceeds:
(1) to repay Indebtedness and other Obligations under the Working Capital Facility and to correspondingly permanently reduce commitments with respect thereto;
(2) to acquire all or substantially all of the assets of, or any Capital Stock of, another Permitted Business, if, after giving effect to any such acquisition of Capital Stock, the Permitted Business is or becomes (x) a Restricted Subsidiary of the Company and (y) a Guarantor;
(3) to make capital expenditures in a Permitted Business (other than Equity Interests, Indebtedness or current assets); or
(4) to acquire other assets (other than Equity Interests or Indebtedness) that are not classified as current assets under GAAP and that are used or useful in a Permitted Business. Pending the final application of any Net Proceeds, the Company may temporarily reduce borrowings under the Working Capital Facility or otherwise invest the Net Proceeds in any manner that is not prohibited by this Indenture. Any Net Proceeds Offer Trigger Date, from Asset Sales that are not applied or invested as provided in the second paragraph of this covenant will constitute “Excess Proceeds.” When the aggregate amount of Excess Proceeds exceeds $5.0 million, the Company will, within five (5) days thereof, make an Asset Sale Offer to all Holders and all holders of other senior secured Applicable Indebtedness that is pari passu (other than Indebtedness of the type described in right clause (3)(a) or (3)(b) of payment and as to security interests with the Notes with respect to the assets that are the subject of such Asset Sale immediately preceding paragraph) 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 Section 4.10 on a prorata basis, the maximum principal amount of Notes and such other pari passu Applicable Indebtedness that may be purchased out with the Net Proceeds Offer Amount at a price equal to 100% of the Excess principal amount thereof (or if such Indebtedness was issued with original issue discount, 100% of the accreted value), plus accrued and unpaid interest and Additional Interest thereon, if any, to the date of purchase; provided, however, that if (x) at any time any non-cash consideration received by the Company or any Restricted Subsidiary of the Company, as the case may be, in connection with any Asset Sale is converted into or sold or otherwise disposed of for cash (other than interest received with respect to any such non-cash consideration), then such conversion or disposition shall be deemed to constitute an Asset Sale hereunder on the date of such conversion or disposition, as the case may be, and the Net Cash Proceeds thereof shall be applied in accordance with this Section 4.10 and (y) any Net Cash Proceeds are not applied by the date provided in any definitive agreement described under clause (3)(c) of the immediately preceding paragraph (as such date may be extended in accordance with the terms of such definitive agreement, but in any event, to a date no later than 180 days following such 361st date), such date (as extended, if applicable) and the aggregate amount of such Net Cash Proceeds shall immediately be deemed to be a “Net Proceeds Trigger Date” and “Net Proceeds Offer Amount”, respectively, and such aggregate amount shall be subject to a Net Proceeds Offer and such Net Cash Proceeds shall be applied in accordance with this paragraph. The Company may defer any Net Proceeds Offer until there is an aggregate unutilized Net Proceeds Offer Amount equal to or in excess of $5.0 million resulting from one or more Asset Sales in which case the accumulation of such amount shall constitute a Net Proceeds Offer Trigger Date (at which time, the entire unutilized Net Proceeds Offer Amount, and not just the amount in excess of $5.0 million, shall be applied as required pursuant to the immediately preceding paragraph). Upon the completion of each Net Proceeds Offer, the Net Proceeds Offer Amount will be reset at zero, and for the avoidance of doubt, if the aggregate principal amount of Notes properly tendered in connection with such Net Proceeds Offer was less than the Net Proceeds Offer Amount, any Net Cash Proceeds relating to, and remaining following the completion of, such Net Proceeds Offer shall no longer constitute Net Cash Proceeds for purposes of this Section 4.10. In the event of the transfer of substantially all (but not all) of the property and assets of the Company and its Restricted Subsidiaries as an entirety to a Person in a transaction permitted in Section 5.01, which transaction does not constitute a Change of Control, the successor entity shall be deemed to have sold the properties and assets of the Company and its Restricted Subsidiaries not so transferred for purposes of this Section 4.10, and shall comply with the provisions of this Section 4.10 with respect to such deemed sale as if it constituted an Asset Sale. In addition, the Fair Market Value of such properties and assets of the Company or its Restricted Subsidiaries deemed to be sold shall be deemed to be Net Cash Proceeds for purposes of this Section 4.10. Each notice of a Net Proceeds Offer shall be mailed first class, postage prepaid, to the record Holders as shown on the register of Holders within 20 days following the Net Proceeds Offer Trigger Date, with a copy to the Trustee, and shall comply with the procedures set forth in Section 3.09 hereof. The offer price for the Notes in any Asset Sale Offer will be equal to 100% of the aggregate principal amount of the Notes, plus accrued and unpaid interest to the date of purchase, and will be payable in cash. If any Excess Proceeds remain after consummation of an Asset Sale Offer, the Company may use those Excess Proceeds for any purpose not otherwise prohibited by this Indenture. If Upon receiving notice of the aggregate principal Net Proceeds Offer, Holders may elect to tender their Notes in whole or in part in integral multiples of $1,000 in exchange for cash. To the extent Holders properly tender Notes in an amount exceeding the Net Proceeds Offer Amount, Notes of Notes and the amount of other pari passu Indebtedness tendered into such Asset Sale Offer exceeds the amount of Excess Proceeds, the Trustee shall select the Notes and such other pari passu Indebtedness to tendering Holders will be purchased on a pro rata basisbasis (based on amounts tendered). Upon completion A Net Proceeds Offer shall remain open for a period of each Asset Sale 20 business days or such longer period as may be required by law. The Company will comply with the requirements of Rule 14e-1 under the Exchange Act and any other securities laws and regulations thereunder to the extent such laws and regulations are applicable in connection with the repurchase of Notes pursuant to a Net Proceeds Offer. To the extent that the provisions of any securities laws or regulations conflict with this Section 4.10, the amount Company shall comply with the applicable securities laws and regulations and shall not be deemed to have breached its obligations under this Section 4.10 by virtue of Excess Proceeds will be reset at zerosuch compliance.
Appears in 1 contract
Samples: Indenture (Sand Springs Railway CO)
Limitation on Asset Sales. The Company will shall not, and will shall not permit any of its Restricted Subsidiaries to, consummate an Asset Sale unless:
unless (1i) the Company or the applicable Restricted Subsidiary, as the case may be, receives consideration at the time of the such Asset Sale at least equal to the Fair Market Value fair market value of the assets or Equity Interests issued or sold or otherwise disposed of; and
of (2as determined in good faith by management of the Company or, if such Asset Sale involves consideration in excess of $10,000,000, by the board of directors of the Company, as evidenced by a board resolution), (ii) at least 8575% of the consideration received in the Asset Sale by the Company or such Restricted Subsidiary is in the form of cash. For purposes of this Section 5.10, each of the following will be deemed to be cash:
(1) any liabilities, as shown on the Company’s most recent consolidated balance sheet, of the Company or any Subsidiary (other than contingent liabilities and Indebtedness that are (x) by their terms subordinated to the Notes or any Note Guarantee, (y) unsecured, or (z) secured by a Lien on the assets or rights that are the subject of the Asset Sale, which Lien is junior in priority to the Liens securing the Notes or any Note Guarantee) that are assumed by the transferee of any such assets pursuant to a customary novation agreement that releases the Company or such Subsidiary from further liability;
(2) 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, to the extent of the cash received in that conversion; and
(3) any stock or assets of the kind referred to in clauses (2) or (4) of the next paragraph of this covenant. Within 365 days after the receipt of any Net Proceeds from an Asset Sale, the Company (or the applicable Restricted Subsidiary, as the case may be, from such Asset Sale is in the form of cash or Cash Equivalents and is received at the time of such disposition and (iii) may apply upon the consummation of an Asset Sale, the Company applies, or causes such Restricted 38 -32- Subsidiary to apply, such Net Proceeds:
Cash Proceeds within 180 days of receipt thereof either (1A) to repay Indebtedness and other Obligations under the Working Capital Facility and to correspondingly permanently reduce commitments with respect thereto;
(2) to acquire all or substantially all of the assets of, or any Capital Stock of, another Permitted Business, if, after giving effect to any such acquisition of Capital Stock, the Permitted Business is or becomes (x) a Restricted Subsidiary Indebtedness of the Company and or one or more Restricted Subsidiaries of the Company under the Senior Credit Facilities (y) a Guarantor;
(3) to make capital expenditures in a Permitted Business (other than Equity Interests, Indebtedness or current assets); or
(4) to acquire other assets (other than Equity Interests or Indebtedness) except that are not classified as current assets under GAAP and that are used or useful in a Permitted Business. Pending the final application of any Net Proceeds, the Company may temporarily reduce borrowings repay Indebtedness under the Working Capital Facility or otherwise invest revolving credit portion of the Senior Credit Facilities using the Net Cash Proceeds from such Asset Sale and thereafter use such funds to reinvest pursuant to clause (B) below within the period set forth therein without having to obtain a corresponding reduction in any manner the commitments thereunder), (B) to reinvest, or to be contractually committed to reinvest pursuant to a binding agreement, in Productive Assets and, in the latter case, to have so reinvested within 360 days of the date of receipt of such Net Cash Proceeds or (C) to purchase Securities and other Senior Indebtedness, pro rata tendered to the Company for purchase at a price equal to 100% of the principal amount thereof (or the accreted value of such other Senior Indebtedness, if such other Senior Indebtedness is issued at a discount) plus accrued interest thereon, if any, to the date of purchase pursuant to an offer to purchase made by the Company as set forth below (a "Net Proceeds Offer"); provided, however, that is not prohibited by this Indenture. Any the Company may defer making a Net Proceeds Offer until the aggregate Net Cash Proceeds from Asset Sales that are not otherwise applied in accordance with this covenant equal or invested exceed $15,000,000. Subject to the deferral right set forth in the final proviso of the preceding paragraph, each notice of a Net Proceeds Offer shall be mailed, by first-class mail, to Holders not more than 180 days after the relevant Asset Sale or, in the event the Company or a Restricted Subsidiary has entered into a binding agreement as provided in (B) above, within 180 days following the second paragraph termination of this covenant will constitute “Excess Proceeds.” When such agreement but in no event later than 360 days after the aggregate amount of Excess Proceeds exceeds $5.0 millionrelevant Asset Sale. Such notice shall specify, among other things, the Company willpurchase date (which shall be no earlier than 30 days nor later than 45 days from the date such notice is mailed, within five (5except as otherwise required by law) days thereof, make an Asset Sale Offer to all Holders and all holders of other senior secured Indebtedness that is pari passu in right of payment and as to security interests with the Notes with respect to the assets that are the subject of such Asset Sale 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 amount of Notes and such other pari passu Indebtedness that may be purchased out of the Excess Proceeds in accordance shall otherwise comply with the procedures set forth in Section 3.09 hereofthis Indenture. The offer price for Upon receiving notice of the Notes Net Proceeds Offer, Holders may elect to tender their Securities in any Asset Sale Offer will whole or in part in integral multiples of $1,000. To the extent Holders properly tender Securities in an amount which, together with all other Senior Indebtedness so tendered, exceeds the Net Proceeds Offer, Securities and other Senior Indebtedness of tendering Holders shall be equal to 100% of repurchased on a pro rata basis (based upon the aggregate principal amount tendered, or, if applicable, the aggregate accreted value tendered). To the extent that the aggregate principal amount of Securities tendered pursuant to any Net Proceeds Offer, which, together with the Notesaggregate principal amount or aggregate accreted value, plus accrued and unpaid interest as the case may be, of all other Senior Indebtedness so tendered, is less than the amount of Net Cash Proceeds subject to the date of purchase, and will be payable in cash. If any Excess such Net Proceeds remain after consummation of an Asset Sale Offer, the Company may use those Excess any remaining portion of such Net Cash Proceeds not required to fund the repurchase of tendered Securities and other Senior Indebtedness for any purpose purposes not otherwise prohibited by this Indenture. If Upon the aggregate principal amount consummation of Notes and the amount of other pari passu Indebtedness tendered into such Asset Sale Offer exceeds the amount of Excess Proceeds, the Trustee shall select the Notes and such other pari passu Indebtedness to be purchased on a pro rata basis. Upon completion of each Asset Sale any Net Proceeds Offer, the amount of Excess Net Cash Proceeds will subject to any future Net Proceeds Offer from the Asset Sales giving rise to such Net Cash Proceeds shall be reset at deemed to be zero. The Company shall comply with the requirements of Rule 14e-1 under the Exchange Act to the extent applicable in connection with the repurchase of Securities pursuant to a Net Proceeds Offer.
Appears in 1 contract
Samples: Indenture (Lin Television Corp)
Limitation on Asset Sales. (a) The Company will shall not, and will shall not permit any of its the Company’s Restricted Subsidiaries to, consummate an Asset Sale unless:
(1i) the Company (or the Restricted Subsidiary, as the case may be, receives ) receive consideration at the time of the Asset Sale at least equal to the Fair Market Value of the assets or Equity Interests issued or sold sold, leased, transferred, conveyed or otherwise disposed of;
(ii) the fair market value, if greater than $75.0 million, is determined by the Company’s Board of Directors and evidenced by a resolution of the Board of Directors set forth in an Officers’ Certificate delivered to the Trustee; and
(2iii) at least 8575% of the consideration received in the Asset Sale by the Company or such Restricted Subsidiary is in the form of cash. , Cash Equivalents or Replacement Assets.
(b) For purposes of this Section 5.104.10, each of the following will be deemed to be cash:
(1i) any liabilitiesliabilities of the Company or any of its Restricted Subsidiaries, as shown on the Company’s or such Restricted Subsidiary’s most recent consolidated balance sheet, of the Company or any Subsidiary sheet (other than contingent liabilities and Indebtedness liabilities that are (x) by their terms subordinated to the Notes or any Note Restricted Subsidiary’s Subsidiary Guarantee), (y) unsecured, or (z) secured by a Lien on the assets or rights that are the subject of the Asset Sale, which Lien is junior in priority to the Liens securing the Notes or any Note Guarantee) that are assumed by the transferee of any such assets pursuant to a customary novation assignment and assumption agreement that releases the Company or such Restricted Subsidiary from further liability;liability with respect thereto; and
(2ii) any securities, notes 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 cashcash within 180 days of their receipt (subject to ordinary settlement periods), to the extent of the cash received in that conversion; and
(3iii) any stock Designated Non-cash Consideration received by the Company or assets any such Restricted Subsidiary in such Asset Sale having an aggregate Fair Market Value, taken together with all other Designated Non-cash Consideration received pursuant to this clause (iii) that is at the time outstanding, not to exceed the greater of $25.0 million and 1.5% of the kind referred to in clauses (2) or (4) Company’s Consolidated Total Assets at the time of the next paragraph receipt of this covenant. such Designated Non-cash Consideration, with the Fair Market Value of each item of Designated Non-cash Consideration being measured at the time received and without giving effect to subsequent changes in value.
(c) Within 365 days after the receipt of any Net Proceeds from an Asset Sale, the Company (or the applicable Restricted Subsidiary, as the case may be) may apply such those Net ProceedsProceeds at the Company’s option:
(1i) to repay Indebtedness and other Obligations permanently reduce obligations under the Working Capital Facility and Credit Agreement and, in the case of revolving obligations thereunder, to correspondingly permanently reduce commitments with respect thereto (or other Indebtedness of the Company or any Subsidiary Guarantor secured by a Lien) or Pari Passu Indebtedness; provided that if the Company or a Subsidiary Guarantor shall so reduce obligations under such Pari Passu Indebtedness, it will equally and ratably reduce Obligations under the Notes by making an offer (in accordance with Section 3.03 hereof) to all Holders of Notes to purchase at a purchase price equal to 100% of the principal amount thereof, plus accrued and unpaid interest, if any, the pro rata principal amount of Notes), in each case other than Indebtedness owed to either the Company or an Affiliate of the Company (provided that in the case of any reduction of any revolving obligations, the Company or such Subsidiary shall effect a corresponding reduction of commitments with respect thereto);
(2ii) to acquire all or substantially all of the assets of, or any Capital a majority of the Voting Stock of, another Permitted Business, if, after giving effect to any such acquisition of Capital Stock, the Permitted Business is or becomes (x) a Restricted Subsidiary of the Company and (y) a Guarantor;
(3) to make capital expenditures in a Permitted Business (other than Equity Interests, Indebtedness or current assets); or
(4iii) to acquire other assets (other than Equity Interests or Indebtednessinventory) that are not classified as current assets under GAAP and that are used or useful in a Permitted Business;
(iv) to make capital expenditures in or that are used or useful in a Permitted Business or to make expenditures for maintenance, repair or improvement of existing properties and assets in a manner not prohibited by this Indenture, in each case, to the extent such expenditures are made by or used in the Company or a Subsidiary Guarantor; or
(v) any combination of the foregoing clauses (i) through (iv). In the case of each of Sections 4.10(c)(ii) and (iii), the entry into a definitive agreement to acquire such assets within 365 days after the receipt of any Net Proceeds from an Asset Sale shall be treated as a permitted application of the Net Proceeds from the date of such agreement so long as the Company or such Restricted Subsidiary, as the case may be, enters into such agreement with the good faith expectation that such Net Proceeds will be applied to satisfy such commitment within 455 days of the date of the receipt of such Net Proceeds and such Net Proceeds are actually so applied within such period.
(d) Pending the final application of any Net Proceeds, the Company may temporarily reduce revolving credit borrowings under the Working Capital Facility or otherwise invest the Net Proceeds in any manner that is not prohibited by this Indenture. .
(e) Any Net Proceeds from Asset Sales that are not applied or invested as provided in the second paragraph of this covenant Section 4.10(c) will constitute “Excess Proceeds.” When the aggregate amount of Excess Proceeds exceeds $5.0 50.0 million, the Company will, within five (5) days thereof30 days, make an Asset Sale Offer offer to all Holders of Notes and all holders of other senior secured Pari Passu Indebtedness that is pari passu in right of payment and as to security interests with the Notes with respect to the assets that are the subject of such Asset Sale 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 Pari Passu Indebtedness that may be purchased out of the Excess Proceeds in accordance with the procedures set forth in Section 3.09 hereofProceeds. The offer price for the Notes in any Asset Sale Offer offer will be equal to 100% of the aggregate principal amount of the Notes, plus accrued and unpaid interest interest, if any, to the date of purchase, and will be payable in cash. If any Excess Proceeds remain after consummation of an Asset Sale Offeroffer, the Company may use those Excess Proceeds for any purpose not otherwise prohibited by this IndentureIndenture and they will no longer constitute Excess Proceeds. If the aggregate principal amount of Notes and the amount of other pari passu Pari Passu Indebtedness tendered into such Asset Sale Offer offer exceeds the amount of Excess Proceeds, the Trustee shall will select the Notes and such other pari passu Pari Passu Indebtedness to be purchased on a pro rata basisas described in Section 3.03 hereof. Upon completion of each Asset Sale Offeroffer, the amount of Excess Proceeds will be reset at zero.
(f) The Company will comply with the requirements of Rule 14e-1 under the Exchange Act and any other securities laws and regulations thereunder to the extent those laws and regulations are applicable in connection with each repurchase of Notes pursuant to an Asset Sale offer. To the extent that the provisions of any securities laws or regulations conflict with the Asset Sale provisions of this Indenture, the Company will comply with the applicable securities laws and regulations and will not be deemed to have breached the Company’s obligations under this Section 4.10 by virtue of such conflict.
Appears in 1 contract
Samples: First Supplemental Indenture (Briggs & Stratton Corp)
Limitation on Asset Sales. The Company will not, and will not permit any of its Restricted Subsidiaries to, consummate an Asset Sale unless:
(1) the Company (or the Restricted Subsidiary, as the case may be, ) receives consideration at the time of the Asset Sale at least equal to the Fair Market Value fair market value of the assets or Equity Interests issued or sold or otherwise disposed of;
(2) the fair market value is determined by the Company’s Board of Directors and evidenced by a Board Resolution; and
(23) at least 8575% of the consideration received in the Asset Sale by the Company or such Restricted Subsidiary is in the form of cashcash or Cash Equivalents. For purposes of this clause (3) of Section 5.104.10 only, each of the following will be deemed to be cashcash or Cash Equivalents:
(1a) any liabilities, as shown on the Company’s or such Restricted Subsidiary’s most recent consolidated balance sheet, of the Company or any Subsidiary (other than contingent liabilities and Indebtedness liabilities that are (x) by their terms subordinated to the Notes or any Note Guarantee, (y) unsecured, or (z) secured by a Lien on the assets or rights that are the subject of the Asset Sale, which Lien is junior in priority to the Liens securing the Notes or any Note Subsidiary Guarantee) that are assumed by the transferee of any such assets pursuant to a customary novation agreement that releases the Company or such Subsidiary from further liability;
(2b) 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 cashcash within 270 days of the receipt thereof, to the extent of the cash received in that conversion; and
(3c) with respect to any stock Asset Sale of oil and natural gas properties where the Company or assets such Restricted Subsidiary retains an interest in such property, the aggregate costs and expenses of the kind referred Company or such Restricted Subsidiary related to in clauses the exploration, development, completion or production of such properties and activities related thereto which the transferee (2or an Affiliate thereof) or (4) of the next paragraph of this covenantagrees to pay. Within 365 360 days after the receipt of any Net Proceeds from an Asset Sale, the Company (or the applicable any such Restricted Subsidiary, as the case may be) Subsidiary may apply such those Net ProceedsProceeds at its option to any combination of the following:
(1I) to repay prepay, repay, redeem or repurchase any Indebtedness and of the Company or a Guarantor (other Obligations under than intercompany Indebtedness, Capital Stock or Indebtedness that is subordinated to the Working Capital Facility and to correspondingly permanently reduce commitments with respect theretoNotes or the Subsidiary Guarantees) or any Indebtedness of a Restricted Subsidiary that is not a Guarantor (other than intercompany Indebtedness);
(2II) to acquire all or substantially all of the properties or assets of, of one or any Capital Stock of, another Permitted more other Persons primarily engaged in the Oil and Gas Business, ifand, after giving effect to any such acquisition for this purpose, a division or line of Capital Stock, the Permitted Business is or becomes (x) business of a Restricted Subsidiary of the Company and (y) Person shall be treated as a Guarantorseparate Person;
(3III) to acquire a majority of the Voting Stock of one or more other Persons primarily engaged in the Oil and Gas Business;
(IV) to make one or more capital expenditures in a Permitted Business (other than Equity Interests, Indebtedness or current assets)expenditures; or
(4V) to acquire other property or assets (other than Equity Interests or Indebtedness) that are not classified as current assets under GAAP and that are used or useful in a Permitted the Oil and Gas Business. Pending the final application of any Net Proceeds, the Company or any such Restricted Subsidiary may temporarily reduce revolving credit borrowings under the Working Capital Facility or otherwise invest the Net Proceeds in any manner that is not prohibited by this Indenture. Any Net Proceeds from Asset Sales that are not applied or invested as provided in the second preceding paragraph of this covenant will constitute “Excess Proceeds.” When ”. 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 $5.0 50.0 million, the Company will, within five (5) days thereof, will make an Asset Sale Offer to all Holders of Notes, and to all holders of other senior secured Pari Passu Indebtedness that is pari passu in right of payment and as to security interests with the Notes with respect to the assets that are the subject of such Asset Sale 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 assets, to purchase the maximum amount Reduced Principal Amount of Notes and such other pari passu Pari Passu Indebtedness that may be purchased out of the Excess Proceeds in accordance with Proceeds, pursuant to the procedures set forth terms in Section 3.09 hereof3.04 hereof and this Section 4.10. The offer price for the Notes in any Asset Sale Offer will be equal to 100% of the aggregate principal amount of the Notes, Reduced Principal Amount plus accrued and unpaid interest interest, if any, to the Settlement Date, subject to the right of Holders of record on the relevant record date of purchaseto receive interest due on an Interest Payment Date that is on or prior to the Settlement Date, and will be payable in cash. If any Excess Proceeds remain after consummation of an Asset Sale Offer, the Company may use those Excess Proceeds for any purpose not otherwise prohibited by this Indenture. If the aggregate principal amount Reduced Principal Amount of Notes and the amount of other pari passu Pari Passu Indebtedness tendered into in such Asset Sale Offer exceeds the amount of Excess Proceeds, the Trustee shall will select the Notes and such other pari passu Pari Passu Indebtedness to be purchased on a pro rata basisbasis on the basis of the aggregate accreted value (if issued with original issue discount) or Reduced Principal Amount of tendered Notes and Pari Passu Indebtedness (provided that the selection of such Pari Passu Indebtedness shall be made pursuant to the terms of such Pari Passu Indebtedness) (with such adjustments as may be deemed appropriate by the Company so that only Notes in denominations of Original Principal Amount of $1,000 or any integral multiple of $1,000 in excess thereof, will be purchased). Upon completion of each Asset Sale Offer, the amount of Excess Proceeds will be reset at zero. The Company will comply with the requirements of Rule 14e-1 under the Exchange Act and any other Applicable Law to the extent applicable in connection with each repurchase of Notes pursuant to an Asset Sale Offer. To the extent that the provisions of any securities laws or regulations conflict with the provisions of Section 3.04 or this Section 4.10, the Company will comply with the applicable securities laws and regulations and will not be deemed to have breached its obligations under such provisions by virtue of such compliance.
Appears in 1 contract
Samples: Sixth Supplemental Indenture (Whiting Petroleum Corp)
Limitation on Asset Sales. The Company will not, and will not permit any of its Restricted Subsidiaries to, consummate an Asset Sale unless:
(1) the Company or the applicable Restricted Subsidiary, as the case may be, receives consideration at the time of the such Asset Sale at least equal to the Fair Market Value of the assets or Equity Interests issued or sold or otherwise disposed of; anddisposed;
(2) at least 8575% of the consideration received by the Company or the Restricted Subsidiary, as the case may be, from such Asset Sale is in the Asset Sale by form of cash or Cash Equivalents or assets described in the following clause (3)(b) and is received at the time of such disposition; provided that the amount of any liabilities (as shown on the most recent applicable balance sheet) of the Company or such Restricted Subsidiary is in the form of cash. For purposes of this Section 5.10, each of the following will be deemed to be cash:
(1) any liabilities, as shown on the Company’s most recent consolidated balance sheet, of the Company or any Subsidiary (other than contingent liabilities and Indebtedness that are (x) by their terms subordinated to the Notes or any Note Guarantee, (y) unsecured, or (z) secured by a Lien on the assets or rights that are the subject of the Asset Sale, which Lien is junior in priority to the Liens securing the Notes or any Note GuaranteeNotes) that are assumed by the transferee of any such assets pursuant shall be deemed to a customary novation agreement be cash for purposes of this provision so long as the documents governing such liabilities provide that releases the Company or such Subsidiary from there is no further liability;
(2) any securities, notes or other obligations received by recourse to the Company or any of its Subsidiaries with respect to such liabilities; and
(3) the Company shall apply, or cause such Restricted Subsidiary from to apply, the Net Cash Proceeds relating to such transferee Asset Sale within 360 days of receipt thereof either:
(a) to repay Indebtedness under the Credit Agreement and permanently reduce the commitments thereunder;
(b) to make an investment in property, plant, equipment or other non-current assets that are contemporaneouslyreplace the properties and assets that were the subject of such Asset Sale or that will be used or useful in a Permitted Business (including expenditures for maintenance, subject repair or improvement of existing properties and assets) or the acquisition of all of the Capital Stock of a Person engaged in a Permitted Business; or
(c) a combination of repayment and investment permitted by the foregoing clauses (3)(a) and (3)(b). Pending the final application of Net Cash Proceeds, the Company may temporarily reduce revolving credit borrowings or invest such Net Cash Proceeds in Cash Equivalents. On the 361st day after an Asset Sale or such earlier date, if any, as the Board of Directors of the Company or of such Restricted Subsidiary determines not to ordinary settlement periodsapply the Net Cash Proceeds relating to such Asset Sale as set forth in clauses (3)(a), converted (3)(b) or (3)(c) of the preceding paragraph (each, a “Net Proceeds Offer Trigger Date”), such aggregate amount of Net Cash Proceeds which have not been applied on or before such Net Proceeds Offer Trigger Date as permitted in clauses (3)(a), (3)(b) and (3)(c) of the preceding paragraph (each a “Net Proceeds Offer Amount”) shall be applied by the Company or such Restricted Subsidiary into cashto make an offer to purchase (the “Net Proceeds Offer”) on a date (the “Net Proceeds Offer Payment Date”) not less than 30 nor more than 45 days following the applicable Net Proceeds Offer Trigger Date, from all Holders, the maximum principal amount of Notes that may be purchased with the Net Proceeds Offer Amount at a price equal to 100% of the principal amount thereof, plus accrued and unpaid interest and Additional Interest, if any, thereon to the extent date of purchase; provided, however, that if at any time any non-cash consideration received by the Company or any Restricted Subsidiary of the cash received in that conversion; and
(3) any stock or assets of the kind referred to in clauses (2) or (4) of the next paragraph of this covenant. Within 365 days after the receipt of any Net Proceeds from an Asset Sale, the Company (or the applicable Restricted SubsidiaryCompany, as the case may be) may apply such Net Proceeds:
, in connection with any Asset Sale is converted into or sold or otherwise disposed of for cash (1) to repay Indebtedness and other Obligations under the Working Capital Facility and to correspondingly permanently reduce commitments than interest received with respect thereto;
(2) to acquire all or substantially all of the assets of, or any Capital Stock of, another Permitted Business, if, after giving effect to any such acquisition non-cash consideration), then such conversion or disposition shall be deemed to constitute an Asset Sale hereunder on the date of Capital Stocksuch conversion or disposition, as the case may be, and the Net Cash Proceeds thereof shall be applied in accordance with this covenant. The Company may defer any Net Proceeds Offer until there is an aggregate unutilized Net Proceeds Offer Amount equal to or in excess of $5.0 million resulting from one or more Asset Sales in which case the accumulation of such amount shall constitute a Net Proceeds Offer Trigger Date (at which time, the Permitted Business is or becomes entire unutilized Net Proceeds Offer Amount, and not just the amount in excess of $5.0 million, shall be applied as required pursuant to the immediately preceding paragraph). Upon the completion of each Net Proceeds Offer, the Net Proceeds Offer Amount will be reset at zero. In the event of the transfer of substantially all (xbut not all) a Restricted Subsidiary of the property and assets of the Company and (y) its Restricted Subsidiaries as an entirety to a Guarantor;
(3) to make capital expenditures Person in a Permitted Business (other than Equity Intereststransaction permitted under Section 5.01, Indebtedness or current assets); or
(4) to acquire other assets (other than Equity Interests or Indebtedness) that are which transaction does not classified as current assets under GAAP and that are used or useful in constitute a Permitted Business. Pending the final application Change of any Net ProceedsControl, the successor entity shall be deemed to have sold the properties and assets of the Company may temporarily reduce borrowings under and its Restricted Subsidiaries not so transferred for purposes of this covenant, and shall comply with the Working Capital Facility provisions of this covenant with respect to such deemed sale as if it constituted an Asset Sale. In addition, the Fair Market Value of such properties and assets of the Company or otherwise invest its Restricted Subsidiaries deemed to be sold shall be deemed to be Net Cash Proceeds for purposes of this covenant. Each notice of a Net Proceeds Offer shall be mailed first class, postage prepaid, to the record Holders as shown on the register of Holders within 20 days following the Net Proceeds in any manner that is not prohibited by this Indenture. Any Net Proceeds from Asset Sales that are not applied or invested as provided in the second paragraph of this covenant will constitute “Excess Proceeds.” When the aggregate amount of Excess Proceeds exceeds $5.0 millionOffer Trigger Date, the Company will, within five (5) days thereof, make an Asset Sale Offer to all Holders and all holders of other senior secured Indebtedness that is pari passu in right of payment and as to security interests with the Notes with respect a copy to the assets that are the subject of such Asset Sale 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 amount of Notes Trustee, and such other pari passu Indebtedness that may be purchased out of the Excess Proceeds in accordance shall comply with the procedures set forth in Section 3.09 hereof. The offer price for the Notes in any Asset Sale Offer will be equal to 100% of the aggregate principal amount of the Notes, plus accrued and unpaid interest to the date of purchase, and will be payable in cash. If any Excess Proceeds remain after consummation of an Asset Sale Offer, the Company may use those Excess Proceeds for any purpose not otherwise prohibited by this Indenture. If Upon receiving notice of the aggregate principal Net Proceeds Offer, Holders may elect to tender their Notes in whole or in part in integral multiples of $1,000 in exchange for cash. To the extent Holders properly tender Notes in an amount exceeding the Net Proceeds Offer Amount, Notes of Notes and the amount of other pari passu Indebtedness tendered into such Asset Sale Offer exceeds the amount of Excess Proceeds, the Trustee shall select the Notes and such other pari passu Indebtedness to tendering Holders will be purchased on a pro rata basisbasis (based on amounts tendered). Upon completion A Net Proceeds Offer shall remain open for a period of each 20 business days or such longer period as may be required by law. The Company will comply with the requirements of Rule 14e-1 under the Exchange Act and any other securities laws and regulations thereunder to the extent such laws and regulations are applicable in connection with the repurchase of Notes pursuant to a Net Proceeds Offer. To the extent that the provisions of any securities laws or regulations conflict with the “Asset Sale OfferSale” provisions of this Indenture, the amount Company shall comply with the applicable securities laws and regulations and shall not be deemed to have breached its obligations under the “Asset Sale” provisions of Excess Proceeds will be reset at zerothis Indenture by virtue of such compliance.
Appears in 1 contract
Samples: Indenture (Dune Energy Inc)
Limitation on Asset Sales. The Company (a) Parent will not, and will not permit any of its Restricted Subsidiaries to, consummate an any Asset Sale unless:
unless (1i) the Company Parent or the Restricted Subsidiary, as the case may be, applicable Subsidiary receives consideration at the time of the such Asset Sale (the "Asset Sale Closing Date") at least equal to the Fair Market Value fair market value of the assets or Equity Interests issued or sold or otherwise disposed of; and
of (2as determined in good faith by the Board of Directors of Parent or, with respect to assets having a fair market value in excess of $2 million, an Independent Financial Advisor) and at least 8590% of the fair market value (as so determined) of the consideration so received in the Asset Sale by the Company Parent or such Restricted Subsidiary is in the form of cash. For purposes ; provided, however, that the amount of this Section 5.10, each of the following will be deemed to be cash:
(1A) any liabilities, as shown on the Company’s most recent consolidated balance sheet, liabilities of the Company Parent or any Subsidiary (other than contingent liabilities and Indebtedness that are (x) by their terms subordinated to the Notes or any Note Guarantee, (y) unsecured, or (z) secured by a Lien on the assets or rights that are the subject of the Asset Sale, which Lien is junior in priority to the Liens securing the Notes or any Note Guarantee) its Subsidiaries that are assumed by the transferee of in any such assets pursuant to a customary novation agreement that releases the Company transaction (as shown on Parent's or such Subsidiary from further liability;
Subsidiary's most recent balance sheet) and (2B) any securities, notes or other obligations Cash Equivalents received by the Company Parent or any such Restricted Subsidiary from such transferee that are contemporaneously, subject to ordinary settlement periods, immediately converted by the Company Parent or such Restricted Subsidiary into cash shall both be deemed to be cash, solely to the extent of the cash received in that conversionthe case of (B), for purposes of this Section 4.18; and
and (3ii) any stock the Net Cash Proceeds received by Parent or assets such Subsidiary from such Asset Sale are applied, (1) in the case of Collateral other than Second Lien Collateral, by delivery to the kind referred Trustee on the Asset Sale Closing Date of all Net Cash Proceeds to in clauses be held by the Trustee for the redemption of Senior Notes pursuant to a Net Proceeds Redemption as set forth below, and (2) or in the case of Second Lien Collateral, at Parent's election, (4A) by delivery to the Lender on the Asset Sale Closing Date of the next paragraph of this covenant. Within 365 days after the receipt of any Net Cash Proceeds from an Asset Sale, the Company (or the applicable Restricted Subsidiary, as the case may be) may apply such Net Proceeds:
(1) to repay Indebtedness and other Obligations of Publishing under the Working Capital Facility and to correspondingly permanently reduce commitments with respect thereto;
(2) to acquire all or substantially all New Credit Facility; provided, however, that any such repayment shall result in a permanent reduction of the assets of, or any Capital Stock of, another Permitted Business, if, after giving effect to any such acquisition of Capital Stock, the Permitted Business is or becomes (x) Lender's commitment thereunder and a Restricted Subsidiary of the Company and (y) a Guarantor;
(3) to make capital expenditures corresponding permanent reduction in a Permitted Business (other than Equity Interests, Indebtedness or current assets); or
(4) to acquire other assets (other than Equity Interests or Indebtedness) that are not classified as current assets under GAAP and that are used or useful in a Permitted Business. Pending the final application of any Net Proceeds, the Company may temporarily reduce borrowings under the Working Capital Facility or otherwise invest the Net Proceeds in any manner that is not prohibited by this Indenture. Any Net Proceeds from Asset Sales that are not applied or invested as provided in the second paragraph of this covenant will constitute “Excess Proceeds.” When the aggregate amount of Excess Proceeds exceeds $5.0 million, the Company will, within five (5) days thereof, make an Asset Sale Offer to all Holders and all holders of other senior secured Indebtedness that is pari passu in right of payment and as to security interests with the Notes with respect to the assets that are the subject of such Asset Sale 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 amount of Notes and such other pari passu Indebtedness that may be purchased out permitted under Section 4.13(b)(i) or 4.13(b)(ii), or (B) by delivery to the Trustee on the Asset Sale Closing Date of the Excess Net Cash Proceeds to be held by the Trustee for the redemption of Senior Notes pursuant to a Net Proceeds Redemption as set forth below; provided, however, that if at any time any non-cash consideration received by Parent or any Subsidiary in connection with any Asset Sale is converted into or sold or otherwise disposed of for cash, or if cash dividends or interest or other cash payments are received with respect thereto, then such cash shall constitute Net Cash Proceeds for purposes of this covenant and shall be applied in accordance with clause (ii) above as if received in an Asset Sale occurring on the procedures set forth date any such cash is received. To the extent that any such Net Cash Proceeds are not actually applied in accordance with clauses (ii)(2)(A) above or after such application there remains a portion of the Net Cash Proceeds, Publishing shall redeem Senior Notes as described in Section 3.09 hereof. The offer 4.18(b) (a "Net Proceeds Redemption") at a price for the Notes in any Asset Sale Offer will be equal to 100% the percentage specified in Section 3.07 of the aggregate principal amount of the Notesthereof, plus accrued and unpaid interest to the date of purchase, and will be payable which shall in cash. If any Excess Proceeds remain after consummation of an Asset Sale Offer, the Company may use those Excess Proceeds for any purpose not otherwise prohibited by this Indenture. If the aggregate principal amount of Notes and equal the amount of other pari passu Indebtedness tendered into such Net Cash Proceeds required by this Section 4.18 to be made available to purchase Senior Notes in a Net Proceeds Redemption.
(b) Notice of a Net Proceeds Redemption pursuant to this Section 4.18 shall be mailed, by first class mail, by Publishing not more than 30 days after the relevant Asset Sale Offer exceeds Closing Date to all Holders at their last registered addresses, with a copy to the Trustee. The notice shall contain all instructions and materials necessary to enable such Holders to tender Senior Notes pursuant to the Net Proceeds Redemption and shall state the terms required to be stated in a notice of redemption under Section 3.03. On or before the Asset Sale Closing Date, Publishing shall deposit with the Paying Agent U.S. Legal Tender equal to the Net Cash Proceeds of the Asset Sale. Following the Redemption Date, the Paying Agent shall promptly mail to the Holders of Senior Notes so accepted payment in an amount equal to the purchase price. Publishing will publicly announce the results of Excess Proceedsthe Net Proceeds Redemption on or as soon as practicable after the Redemption Date. For purposes of this Section 4.18, the Trustee shall select act as the Notes and such other pari passu Indebtedness to be purchased Paying Agent. Notwithstanding the foregoing, the Trustee need not initiate a redemption under this Section 4.18 if the amount on a pro rata basis. Upon completion of each deposit with the Trustee on any Asset Sale OfferClosing Date is less than $1,000,000, but shall instead hold such lesser amount in trust in an interest bearing account until the amount earlier of Excess Proceeds will be reset at zerothe next Redemption Date under Sections 3.08 or 3.09 or the date upon which the Senior Notes become due and payable. Publishing, however, may not credit any such amounts held by the Trustee against any other provision of this Indenture.
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Limitation on Asset Sales. (a) The Company will shall not, and will shall not permit any of its Restricted Subsidiaries to, consummate an any Asset Sale Sale, unless:
(1) the Company or the such Restricted Subsidiary, as the case may be, receives consideration at the time of the such Asset Sale at least equal to the Fair Market Value fair market value (as determined in Good Faith by the Company) of the assets or Equity Interests issued or sold or otherwise disposed of; and
(2) except in the case of a Permitted Asset Swap, at least 8575% of the consideration therefor received in the Asset Sale by the Company or such Restricted Subsidiary Subsidiary, as the case may be, is in the form of cash. For purposes of this Section 5.10, each of cash or Cash Equivalents; provided that the following will be deemed to be cashamount of:
(1A) any liabilities, liabilities (as shown on the Company’s or such Restricted Subsidiary’s most recent consolidated balance sheet or in the footnotes thereto, or if incurred or accrued subsequent to the date of such balance sheet, such liabilities that would have been shown on the Company’s or such Restricted Subsidiary’s balance sheet or in the footnotes thereto if such incurrence or accrual had taken place on or prior to the date of such balance sheet, as determined in Good Faith by the Company) of the Company or any Subsidiary (such Restricted Subsidiary, other than contingent liabilities and Indebtedness that are (x) by their terms subordinated to the Notes or any Note GuaranteeNotes, (y) unsecured, or (z) secured by a Lien on the assets or rights that are the subject of the Asset Sale, which Lien is junior in priority to the Liens securing the Notes or any Note Guarantee) that are assumed by the transferee of any such assets pursuant to a customary novation agreement that releases and for which the Company or such Subsidiary from further liability;and all of its Restricted Subsidiaries have been validly released by all creditors in writing,
(2B) any securities, notes securities 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, cash or Cash Equivalents (to the extent of the cash received in that conversion; or Cash Equivalents received) within 180 days following the closing of such Asset Sale, and,
(3C) any stock Designated Non-cash Consideration received by the Company or assets such Restricted Subsidiary in such Asset Sale having an aggregate fair market value, taken together with all other Designated Non-cash Consideration received pursuant to this clause (c) that is at that time outstanding, not to exceed 1.0% of Total Assets at the time of the kind referred receipt of such Designated Non-cash Consideration, with the fair market value of each item of Designated Non-cash Consideration being measured at the time received and without giving effect to subsequent changes in clauses (2) or (4) of the next paragraph value, shall be deemed to be Cash Equivalents for purposes of this covenant. provision and for no other purpose.
(b) Within 365 450 days after the receipt of any Net Proceeds from an of any Asset Sale, the Company (or the applicable such Restricted Subsidiary, as the case may be) at its option, may apply the Net Proceeds from such Net Proceeds:Asset Sale,
(1) to repay Indebtedness and other reduce or repay:
a. Obligations under the Working Capital Facility Senior Credit Facilities and to correspondingly permanently reduce commitments with respect thereto;
b. Obligations under Indebtedness (other than Subordinated Indebtedness) that is secured by a Lien, which Lien is permitted by the Indenture, and to correspondingly reduce commitments with respect thereto;
c. Obligations under other Indebtedness (other than Subordinated Indebtedness) (and to correspondingly reduce commitments with respect thereto); provided that, to the extent the Issuers reduce Obligations under such Indebtedness, the Issuers shall equally and ratably reduce Obligations under the Notes as provided under Section 5.7, through open-market purchases (to the extent such purchases are at or above 100% of the Accreted Value thereof) or by making an offer (in accordance with the procedures set forth below for an Asset Sale Offer) to all Holders to purchase their Notes at 100% of the Accreted Value thereof, plus the amount of accrued but unpaid interest, if any, on the amount of Notes that would otherwise be prepaid; or
d. Indebtedness of a Non-Guarantor Subsidiary, including the 2018 Notes, other than Indebtedness owed to the Company or another Restricted Subsidiary (and correspondingly reduce commitments with respect thereto);
(2) to acquire all make (a) an Investment in any one or substantially all more businesses; provided that such Investment in any business is in the form of the assets of, or any Capital Stock of, another Permitted Business, if, after giving effect to any such acquisition of Capital StockStock and results in the Company or another of its Restricted Subsidiaries, as the Permitted Business is or becomes (x) case may be, owning an amount of the Capital Stock of such business such that it constitutes a Restricted Subsidiary Subsidiary, (b) capital expenditures or (c) acquisitions of other assets (other than working capital assets), in the Company case of each of (a), (b) and (y) c), used or useful in a Guarantor;Similar Business; or
(3) to make capital expenditures an Investment in (a) any one or more businesses, provided that such Investment in any business is in the form of the acquisition of Capital Stock and results in the Company or another of its Restricted Subsidiaries, as the case may be, owning an amount of the Capital Stock of such business such that it constitutes a Permitted Business Restricted Subsidiary, (b) properties (other than Equity Interests, Indebtedness working capital assets) or current assets); or
(4c) to acquire acquisitions of other assets (other than Equity Interests or Indebtednessworking capital assets) that, in the case of each of (a), (b) and (c), replace the businesses, properties and/or assets that are not classified the subject of such Asset Sale; provided that, in the case of clauses (2) and (3) above, a binding commitment shall be treated as current assets under GAAP and that are used or useful in a Permitted Business. Pending the final permitted application of the Net Proceeds from the date of such commitment so long as the Company or such other Restricted Subsidiary enters into such commitment with the good faith expectation that such Net Proceeds shall be applied to satisfy such commitment within 180 days of such commitment (an “Acceptable Commitment”) and, in the event any Acceptable Commitment is later cancelled or terminated for any reason before the Net ProceedsProceeds are applied in connection therewith, the Company may temporarily reduce borrowings under the Working Capital Facility or otherwise invest the such Restricted Subsidiary enters into another Acceptable Commitment (a “Second Commitment”) within 180 days of such cancellation or termination; provided further that if any Second Commitment is later cancelled or terminated for any reason before such Net Proceeds in any manner that is not prohibited by this Indentureare applied, then such Net Proceeds shall constitute “Excess Proceeds”. Any Net Proceeds from the Asset Sales Sale that are not invested or applied or invested as provided and within the time period set forth in the second first sentence of the preceding paragraph of this covenant will shall be deemed to constitute “Excess Proceeds.” When the aggregate amount of Excess Proceeds exceeds $5.0 40.0 million, the Company will, within five (5) days thereof, Issuers shall make an offer (an “Asset Sale Offer Offer”) to all Holders and all holders Holders, and, if required by the terms of other senior secured any Indebtedness that is pari passu in right of payment and as to security interests with with, or structurally senior to, the Notes with respect to the assets that are the subject of such Asset Sale 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 Notes, to purchase the maximum amount aggregate Accreted Value or principal amount, as applicable, of the Notes and any such other Indebtedness that is pari passu Indebtedness with, or structurally senior to, the Notes that is equal to $2,000 (in aggregate principal amount at maturity) or an integral multiple of $1,000 in excess thereof that may be purchased out of the Excess Proceeds at an offer price in cash in an amount equal to 100% of the Accreted Value or principal amount thereof, plus (without duplication) accrued and unpaid interest, if any, to the date fixed for the closing of such offer, in accordance with the procedures set forth in Section 3.09 hereofthe Indenture. The offer price for the Notes in any Issuers shall commence an Asset Sale Offer will be equal with respect to 100% Excess Proceeds within ten Business Days after the date that Excess Proceeds exceed $40.0 million by mailing the notice required pursuant to the terms of the Indenture, with a copy to the Trustee or otherwise in accordance with the procedures of DTC. The Issuers may satisfy the foregoing obligations with respect to such Net Proceeds from an Asset Sale by making an Asset Sale Offer with respect to such Net Proceeds prior to the expiration of the Application Period. To the extent that the aggregate Accreted Value or principal amount of the Notes, plus accrued and unpaid interest to the date of purchaseas applicable, and will be payable in cash. If any Excess Proceeds remain after consummation of such Indebtedness that is pari passu with, or structurally senior to, the Notes tendered pursuant to an Asset Sale OfferOffer is less than the Excess Proceeds, the Company Issuers may use those any remaining Excess Proceeds for any purpose not otherwise prohibited by this general corporate purposes, subject to compliance with other covenants contained in the Indenture. If the aggregate Accreted Value or principal amount of Notes and the amount of other or Indebtedness that is pari passu Indebtedness tendered into with, or structurally senior to, the Notes surrendered by such Asset Sale Offer holders thereof exceeds the amount of Excess Proceeds, the Trustee shall select the Notes and the Issuers or agent for such other pari passu Indebtedness shall select such Indebtedness to be purchased on a pro rata basisbasis based on the Accreted Value or principal amount, as applicable, of the Notes or such Indebtedness tendered. Upon completion of each any such Asset Sale Offer, the amount of Excess Proceeds will shall be reset at zero. Pending the final application of any Net Proceeds pursuant to this Section 3.5, the holder of such Net Proceeds may apply such Net Proceeds temporarily to reduce Indebtedness outstanding under a revolving credit facility or otherwise use such Net Proceeds in any manner not prohibited by the Indenture. The Issuers shall comply with the requirements of Rule 14e-1 under the Exchange Act and any other securities laws and regulations thereunder to the extent such laws or regulations are applicable in connection with the repurchase of the Notes pursuant to an Asset Sale Offer. To the extent that the provisions of any securities laws or regulations conflict with the provisions of the Indenture, the Issuers shall comply with the applicable securities laws and regulations and shall not be deemed to have breached its obligations described in the Indenture by virtue thereof.
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Limitation on Asset Sales. (a) The Company will not, and will not permit any of its Restricted Subsidiaries to, consummate an Asset Sale unless:: 62
(1) the Company (or the Restricted Subsidiary, as the case may be, ) receives consideration at the time of the such Asset Sale which, taken as a whole, is at least equal to the Fair Market Value fair market value of the assets or Equity Interests issued or sold or otherwise disposed of;
(2) such fair market value is determined by the Board of Directors of the Company and evidenced by a resolution of the Board of Directors of the Company set forth in an Officers' Certificate delivered to the Trustee; and
(23) at least 8575% of the consideration therefor received in the Asset Sale by the Company or such Restricted Subsidiary is in the form of cashcash or Cash Equivalents or Marketable Securities. For purposes of this Section 5.10provision, each of the following will shall be deemed to be cash:
(1i) any liabilities, liabilities (as shown on the Company’s 's or such Restricted Subsidiary's most recent consolidated balance sheet, ) of the Company or any Restricted Subsidiary (other than contingent liabilities and Indebtedness liabilities that are (x) by their terms subordinated to the Notes or any Note Guarantee, (y) unsecured, or (z) secured by a Lien on the assets or rights that are the subject of the Asset Sale, which Lien is junior in priority to the Liens securing the Notes or any Note GuaranteeNotes) that are assumed by the transferee of any such assets pursuant to a customary novation agreement that releases the Company or such Subsidiary from further liabilityassets;
(2ii) any securities, notes or other obligations received by the Company or any such Restricted Subsidiary from such transferee that are contemporaneouslyconverted, subject to ordinary settlement periods, converted sold or exchanged by the Company or such Restricted Subsidiary into cash, cash or Cash Equivalents within 90 days of the related Asset Sale (to the extent of the cash received in that conversion); andor
(3iii) any stock Designated Noncash Consideration received by the Company or assets any of its Restricted Subsidiaries in such Asset Sale having an aggregate fair market value, taken together with all other Designated Noncash Consideration received since the date of this Indenture pursuant to this Section 4.14(a)(3)(iii) that is at that time outstanding, not to exceed 10% of Total Assets at the time of the kind referred 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 clauses value).
(2b) or (4) of the next paragraph of this covenant. Within 365 days after the receipt of any Net Proceeds from an Asset Sale, the Company (or the applicable Restricted Subsidiary, as the case may be) may apply such Net ProceedsProceeds at its option:
(1) to repay Indebtedness and other Obligations under the Working Capital Facility and Senior Debt and, if such Senior Debt repaid is revolving credit Indebtedness, to correspondingly permanently reduce commitments with respect thereto;
(2) to invest in or to acquire all other properties, assets (whether through the purchase of Capital Stock of any Persons owning such assets or substantially all otherwise) to replace the properties or assets that were the subject of the assets of, Asset Sale or any Capital Stock of, another Permitted Business, if, after giving effect to any such acquisition of Capital Stock, the Permitted Business is or becomes (x) a Restricted Subsidiary that will be used in businesses of the Company and (y) a Guarantor;or its Restricted Subsidiaries, as the case may be, existing at the time such assets are sold; or
(3) to make a capital expenditures in expenditure or commit, or cause such Restricted Subsidiary to commit, to make a Permitted Business capital expenditure (other than Equity Interests, Indebtedness or current assets); or
(4such commitments to include amounts anticipated 63 to be expended pursuant to the Company's capital investment plan as adopted by the Board of Directors of the Company) to acquire other assets (other than Equity Interests or Indebtedness) that are not classified as current assets under GAAP and that are used or useful in a Permitted Businesswithin 24 months of such Asset Sale. Pending the final application of any such Net Proceeds, the Company may temporarily reduce revolving credit borrowings under the Working Capital Facility or otherwise invest the such Net Proceeds in any manner that is not prohibited by this Indenture. .
(c) Any Net Proceeds from Asset Sales that are not applied or invested as provided in the second paragraph of this covenant Section 4.14(a) or (b) hereof will constitute “"Excess Proceeds.” When " On the 366th day after an Asset Sale, if the aggregate amount of Excess Proceeds exceeds $5.0 EURO 25.0 million, the Company will, within five (5) days thereof, will make an offer (an "Asset Sale Offer Offer") to all Holders of Notes and all holders of other senior secured Indebtedness that is pari passu in right of payment and as to security interests PARI PASSU with the Notes with respect to the assets that are the subject of such Asset Sale 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 PARI PASSU Indebtedness that may be purchased out of the Excess Proceeds in accordance with the procedures set forth in Section 3.09 hereofProceeds. The offer price for the Notes in any Asset Sale Offer will be equal to 100% of the aggregate principal amount of the Notes, plus accrued and unpaid interest and Liquidated Damages and Additional Amounts, if any, to the date of purchase, and will be payable in cash. If any Excess Proceeds remain after consummation of an Asset Sale Offer, the Company may use those such Excess Proceeds for any purpose not otherwise prohibited by this Indenture. If the aggregate principal amount of Notes and the amount of such other pari passu PARI PASSU Indebtedness tendered into such Asset Sale Offer exceeds the amount of Excess Proceeds, the Trustee shall select the Notes and such other pari passu PARI PASSU Indebtedness to be purchased on a pro rata basisPRO RATA basis based on the principal amount of such Notes and such other PARI PASSU Indebtedness tendered. Upon completion of each Asset Sale Offer, the amount of Excess Proceeds will shall be reset at zero.
(d) The Asset Sale Offer will remain open for a period of 20 Business Days following its commencement, except to the extent that a longer period is required by applicable law (the "Asset Sale Offer Period"). No later than five Business Days after the termination of the Asset Sale Offer Period (the "Asset Sale Purchase Date"), the Company will purchase the principal amount of Notes and Pari Passu Notes required to be purchased pursuant to this Section 4.14 (the "Asset Sale Offer Amount") or, if less than the Asset Sale Offer Amount has been so validly tendered, all Notes and Pari Passu Notes validly tendered in response to the Asset Sale Offer.
(e) In the case of Definitive Notes, if the date on which the Company purchases the principal amount of Notes as required by the foregoing provisions 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; in the case of Global Notes, the Company will pay accrued and unpaid interest to the date on which the Company purchases the principal amount of Notes to the Holder on such date.
(f) On or before the Asset Sale Purchase Date, the Company will, to the extent lawful, accept for payment, on a PRO RATA basis to the extent necessary, the Asset Sale Offer Amount of Notes and Pari Passu Notes 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 Pari Passu Notes 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 Section 4.14 and, in addition, the Company will deliver all certificates and notes required, if any, by the agreements governing the Pari Passu Notes. The Company or the applicable Paying Agent, as the case may be, will promptly (but in any case not later than five Business Days after the Asset Sale Purchase Date) mail or deliver to each tendering Holder of Notes or holder or lender of Pari Passu Notes, as the case may be, an amount equal to the purchase price of the Notes or Pari Passu Notes so validly tendered and not properly withdrawn by such holder or lender, as the case may be, 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 Pari Passu Notes. Any Note not so accepted will be promptly mailed or delivered by the Company to the Holder thereof.
(g) The Company will comply with the requirements of Rule 14e-1 under the Exchange Act and any other securities laws and regulations thereunder to the extent such laws and regulations are applicable in connection with each repurchase of Notes pursuant to an Asset Sale Offer. To the extent that the provisions of any securities laws or regulations conflict with the Asset Sale provisions herein, the Company will comply with the applicable securities laws and regulations and will not be deemed to have breached its obligations under this Section 4.14 by virtue of such conflict.
(h) The Company will not, and will not permit any Restricted Subsidiary to, engage in any Asset Swaps, unless:
(1) at the time of entering into such Asset Swap and immediately after giving effect to such Asset Swap, no Default or Event of Default shall have occurred and be continuing or would occur as a consequence thereof;
(2) the terms of such Asset Swap have been approved by a majority of the members of the Board of Directors of the Company; and
(3) the Company (or the Restricted Subsidiary, as the case may be) receives consideration at the time of such Asset Swap which, taken as a whole, is at least equal to the fair market value of the assets disposed of in the Asset Swap.
Appears in 1 contract
