Limitation on Asset Sales. Subject to and as permitted by the terms of this Indenture the Company shall not make any Asset Sale of its properties unless (a) the consideration received in the Asset Sale is equal to Fair Market Value; (b) the proceeds therefrom consist of at least 85% cash and/or Cash Equivalents; and (c) unless otherwise expressly provided herein, the Net Cash Proceeds of such Asset Sale shall be: (i) applied in the manner described in the following paragraph; or (ii) retained by the Company to apply to the payment on its Securities when due. On or before the 180th day after the date on which the Company consummates the relevant Asset Sale and subject to and as permitted by the terms of this Indenture, the Company shall use all of the Net Cash Proceeds from such Asset Sale (other than amounts that the Company has determined to retain pursuant to clause (ii) of the preceding paragraph) to make either (a) an offer to purchase (the "Asset Sale Offer") from all holders of Securities up to a maximum principal amount (expressed as a multiple of $1,000) of Securities equal to such Net Cash Proceeds at a purchase price equal to 100% of the principal amount thereof plus accrued and unpaid interest thereon, if any, to the date of purchase or (b) a Permitted Investment; provided, that the Company shall not be required to make any Asset Sale Offer if the Net Cash Proceeds of all Asset Sales that are not used to make a Permitted Investment within 180 days, do not exceed $5 million. Each Asset Sale Offer shall remain open for a period of at least 20 business days. If the Asset Sale Offer is more than fully subscribed to by the Holders of the Securities, the particular Securities to be accepted shall be selected by such method as the Trustee shall deem fair and appropriate and which may provide for the selection of portions of the principal of Securities; provided, however, that no such partial acceptance shall reduce the portion of the principal amount of a Security not redeemed to less than, $1,000; and provided further that so long as the Securities are listed on any national securities exchange (as such term is defined in the Exchange Act), such selection shall be made by the Trustee in accordance with the provisions of such exchange. SECTION 1018. [Intentionally Omitted.] SECTION 1019. [Intentionally Omitted.] SECTION 1020. [Intentionally Omitted.] SECTION 1021. [Intentionally Omitted.] SECTION 1022. [Intentionally Omitted.] SECTION 1023. [Intentionally Omitted.] SECTION 1024. [Intentionally Omitted.] SECTION 1025. [Intentionally Omitted.] SECTION 1026. [Intentionally Omitted.] SECTION 1027. [Intentionally Omitted.] ARTICLE ELEVEN
Appears in 2 contracts
Samples: Indenture (Atlantic Coast Entertainment Holdings Inc), Indenture (Atlantic Coast Entertainment Holdings Inc)
Limitation on Asset Sales. Subject to and as permitted by the terms of this Indenture the Company shall not make any Asset Sale of its properties unless (a) the consideration received The Company shall not, ------------------------- and shall not permit any of its Subsidiaries to, directly or indirectly, engage in the an Asset Sale is equal to Fair Market Value; (bexcept an Exempt Asset Sale) unless:
(i) the proceeds therefrom consist of Company (or such Subsidiary) receives consideration at least 85% cash and/or Cash Equivalents; and (c) unless otherwise expressly provided herein, the Net Cash Proceeds time of such Asset Sale shall be: (i) applied at least equal to the fair market value of the assets sold or otherwise disposed of, and in the manner described case of a lease of assets, a lease providing for rent and other conditions which are no less favorable to the Company (or such Subsidiary) in any material respect than the following paragraphthen prevailing market conditions (as determined in each case by the Board, whose determination shall be conclusive if made in good faith and evidenced by a Board Resolution set forth in an Officers' Certificate delivered to the Trustee); or and
(ii) retained at least 75% (100% in the case of lease payments) of the consideration therefor received by the Company or such Subsidiary is in the form of cash, Cash Equivalents or Eligible Assets.
(b) The Company may apply, and may permit its Subsidiaries to apply to the payment on its Securities when due. On or before the 180th day after the date on which the Company consummates the relevant Asset Sale and subject to and as permitted by the terms apply, Net Proceeds of this Indenture, the Company shall use all of the Net Cash Proceeds from such an Asset Sale (other than amounts that an Exempt Asset Sale), at its option, in each case within 365 days after the Company has determined consummation of such an Asset Sale:
(i) to retain pursuant to clause permanently reduce Senior Indebtedness other than Senior Revolving Debt;
(ii) of to permanently reduce Senior Revolving Debt (and to correspondingly reduce the preceding paragraphcommitments, if any, with respect thereto);
(iii) to acquire Eligible Assets or to reimburse the Company or its Subsidiaries for expenditures previously made to acquire Eligible Assets, provided that any such expenditures were made not more than 180 -------- days prior to the consummation of such Asset Sale and were made in contemplation of such Asset Sale and for the purpose of replacing the assets to be disposed of in such Asset Sale; or
(iv) to reimburse the Company or its Subsidiaries for expenditures made, and costs incurred, to repair, rebuild, replace or restore property subject to loss, damage or taking to the extent that the Net Proceeds consist of insurance proceeds received on account of such loss, damage or taking. Pending the final application of any such Net Proceeds, the Company may temporarily reduce Senior Revolving Debt or otherwise invest such Net Proceeds temporarily in Cash Equivalents.
(c) Any Net Proceeds from Asset Sales (other than Exempt Asset Sales) that are not applied as provided in paragraph (b) of this Section 4.08 within 365 days after the consummation of such an Asset Sale will be deemed to constitute "Excess Proceeds."
(d) When the aggregate amount of Excess Proceeds exceeds $5.0 million, the Company will be required to make either (a) an offer to purchase all Holders (an "Asset Sale Offer"), to purchase, on a pro rata basis, the principal amount of Notes equal in amount to the Excess Proceeds (and not just the amount thereof that exceeds $5.0 million) (the "Asset Sale OfferOffer Amount") from all holders of Securities up to a maximum principal amount (expressed as a multiple of $1,000) of Securities equal to such Net Cash Proceeds ), at a purchase price in cash in an amount equal to 100% of the principal amount thereof plus accrued and unpaid interest thereon, if any, and Liquidated Damages thereon to the date of purchase (subject to the right of each Holder or record on the relevant Record Date to receive interest due on the relevant Interest Payment Date), in accordance with the procedures set forth in this Indenture, and in accordance with the following standards:
(bi) If the aggregate principal amount of Notes surrendered by Holders thereof exceeds the amount of Excess Proceeds, the Trustee shall select the Notes to be purchased on a Permitted Investment; providedpro rata basis, based on the principal amount of -------- 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.
(ii) If the Company shall not be required aggregate principal amount of Notes tendered pursuant to make any such Asset Sale Offer is less than the Excess Proceeds, the Company may use any remaining Excess Proceeds following the completion of the Asset Sale Offer for general corporate purposes (subject to the other provisions of this Indenture). Upon completion of an Asset Sale Offer, the amount of Excess Proceeds then required to be otherwise applied in accordance with this covenant shall be reset to zero, subject to any subsequent Asset Sale.
(e) Within 30 calendar days after the date the amount of Excess Proceeds exceeds $5.0 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 if the Net Cash amount of Excess Proceeds is less than the aggregate principal amount of all Notes timely tendered pursuant to the Asset Sales Sale Offer;
(ii) the Asset Sale Offer Amount, 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 Purchase Date"), which date shall be a Business Day no earlier than 30 calendar days nor later than 60 calendar days subsequent to the date such notice is mailed;
(iii) that any Notes or portions thereof not used tendered or accepted for payment will continue to make a Permitted Investment within 180 daysaccrue interest;
(iv) that, do not exceed $5 million. Each unless the Company defaults in the payment of the Asset Sale Offer Amount with respect thereto, all Notes or portions thereof accepted for payment pursuant to the Asset Sale Offer shall remain open for a period of at least 20 business days. If cease to accrue interest from and after the Asset Sale Purchase Date;
(v) that any Holder electing to have any Notes or portions thereof purchased pursuant to the Asset Sale Offer is more will be 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 the notice prior to the close of business on the third Business Day preceding the Asset Sale Purchase Date;
(vi) that any Holder shall be entitled to withdraw such election if the Paying Agent receives, not later than fully subscribed to by the Holders close of business on the second Business Day preceding the Asset Sale Purchase Date, a facsimile transmission or letter, setting forth the name of the SecuritiesHolder, the particular Securities to be accepted shall be selected by such method as the Trustee shall deem fair and appropriate and which may provide for the selection of portions of the principal of Securities; provided, however, that no such partial acceptance shall reduce the portion of the principal amount of Notes delivered for purchase, and a Security not redeemed statement that such Holder is withdrawing such Holder's election to less thanhave such Notes or portions thereof purchased pursuant to the 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; and provided further 1,000 or an integral multiple thereof;
(viii) if Certificated Notes have been issued hereof, that so long as any Holder of Certificated Notes whose Certificated Notes are being purchased only in part will be issued new Certificated Notes equal in principal amount to the Securities are listed on any national securities exchange unpurchased portion of the Certificated Note or Notes surrendered, which unpurchased portion will be equal in principal amount to $1,000 or an integral multiple thereof;
(as such term ix) that the Trustee will return to the Holder of a Global Note that is defined being purchased in the Exchange Act)part, such selection shall Global Note with a notation on Schedule A thereof adjusting the principal amount thereof to be made by equal to the Trustee in accordance with the provisions unpurchased portion of such exchange. SECTION 1018. [Intentionally OmittedGlobal Note; and
(x) any other information necessary to enable any Holder to tender Notes and to have such Notes purchased pursuant to this Section 4.] SECTION 1019. [Intentionally Omitted.] SECTION 1020. [Intentionally Omitted.] SECTION 1021. [Intentionally Omitted.] SECTION 1022. [Intentionally Omitted.] SECTION 1023. [Intentionally Omitted.] SECTION 1024. [Intentionally Omitted.] SECTION 1025. [Intentionally Omitted.] SECTION 1026. [Intentionally Omitted.] SECTION 1027. [Intentionally Omitted.] ARTICLE ELEVEN
Appears in 1 contract
Limitation on Asset Sales. Subject iii)With respect to Asset Sales of Collateral
(1) The Company shall not, and shall not permit any Restricted Subsidiary to, directly or indirectly, engage in Asset Sales of Collateral (other than an Incidental Asset) unless:
(i) no Default shall have occurred and be continuing;
(ii) the sale or transfer shall be effected in a commercially reasonable manner as determined in good faith by the Board of Directors and evidenced by a board resolution and the Company or such Restricted Subsidiary receives at least fair market value for the assets disposed of;
(iii) the entire consideration for such sale, and all Bareboat Charter Funds in respect of a Bareboat Charter, shall be cash or Cash Equivalents, which, in the case of a Sold Mortgaged Vessel, shall be not less than the Appraised Value of such Sold Mortgaged Vessel determined within 90 days prior to the date of such sale;
(iv) funds in an amount equal to the Net Available Cash (or the Sale Equivalent Portion of Bareboat Charter Funds) shall be paid in full directly to the Trustee as Collateral and shall be received by the Trustee free of any Lien (other than the Lien of this Indenture and the Security Agreements); and
(v) the Company shall have complied with the other provisions of this Indenture applicable to such sale.
(2) Within 365 days (subject to extension as provided Section 4.06(a)(3)) after the receipt of any Net Available Cash from an Asset Sale involving Collateral, the Company or the applicable Restricted Subsidiary shall apply such Net Available Cash to:
(i) provided that no Default or Event of Default shall have occurred and be continuing, substitute one or more Qualified Substitute Vessels for the sold Mortgage Vessel, including by making an installment payment in respect of a binding contract described in Section 4.06(a)(3), (and to make any Permitted Repairs with respect thereto) for such Sold Mortgaged Vessel and make such Qualified Substitute Vessel(s) subject to the Lien of this Indenture and the applicable Security Agreements in accordance with the provisions thereof;
(ii) make a Collateral Sale Offer in accordance with Section 4.06(a)(4); or
(iii) any combination of the transactions permitted by the terms of this Indenture the Company shall not make any Asset Sale of its properties unless foregoing clauses (a1) the consideration received in the Asset Sale is equal to Fair Market Value; (b) the proceeds therefrom consist of at least 85% cash and/or Cash Equivalents; and (c2).
(3) unless otherwise expressly provided herein, A binding contract to apply Net Available Cash in accordance with Section 4.06(a)(2)(i) above will toll the Net Cash Proceeds 365-day period in respect of such Asset Sale Net Available Cash for a period not to exceed 365 days from the expiration of the initial 365-day period, provided that such binding contract shall be: be treated as a permitted application of Net Available Cash from the date of such binding contract until and only until the earlier of (ix) applied in the manner described in the following paragraph; or (ii) retained by the Company to apply to the payment on its Securities when due. On or before the 180th day after the date on which such acquisition or expenditure is consummated and (y) (i) in the case of any Vessel Construction Contract, the date of expiration or termination of such Vessel Construction Contract and (ii) otherwise, the 365th day following the expiration of the initial 365-day period (clause (i) or clause (ii) as applicable, the "Collateral Proceeds Reinvestment Termination Date"). Any refunds in respect of any payments (including installment payments) pursuant to such acquisitions, expenditures or Vessel Construction Contracts shall be treated as Net Available Cash and remain subject to Section 4.06(a)(2). If the Company consummates or the relevant Asset Sale and subject to and applicable Restricted Subsidiary, as permitted by the terms of this Indenturecase may be, the Company shall use all of the not have applied such Net Available Cash Proceeds from such Asset Sale (other than amounts that the Company has determined to retain pursuant to clause (ii1) above on or before the Collateral Proceeds Reinvestment Termination Date, such binding contract shall be deemed not to have been a permitted application of the preceding paragraphNet Available Cash.
(4) to Any Net Available Cash from Asset Sales involving Collateral that is not applied as provided in Section 4.06(a)(2) will constitute "Excess Collateral Proceeds." When the aggregate amount of Excess Collateral Proceeds exceeds $15.0 million, the Company will make either (a) an offer to purchase (the a "Asset Collateral Sale Offer") from to all holders of Securities up to a purchase the maximum principal amount (expressed as a multiple of $1,000) of Securities equal to such Net Cash Proceeds at a purchase that can be purchased out of the Excess Collateral Proceeds. The offer price for the Securities in any Collateral Sale Offer will be equal to 100% of the principal amount thereof of the Securities plus accrued and unpaid interest thereon, if any, to the date of purchase or purchase, and will be payable in cash. If any Excess Collateral Proceeds remain after consummation of a Collateral Sale Offer, those Excess Collateral Proceeds shall be retained by the Trustee as Trust Moneys. If the aggregate principal amount of Securities tendered in response to such Collateral Sale Offer exceeds the amount of Excess Collateral Proceeds, the Trustee will select the Securities to be purchased on a pro rata basis. Upon completion of each Collateral Sale Offer, the amount of Excess Collateral Proceeds will be reset at zero.
(b5) a Permitted Investment; provided, that the Company shall not be required to make Whenever Net Available Cash from any Asset Sale Offer if the Net Cash Proceeds of all Asset Sales that are not used to make a Permitted Investment within 180 days, do not exceed $5 million. Each Asset Sale Offer shall remain open for a period of at least 20 business days. If the Asset Sale Offer involving Collateral is more than fully subscribed to received by the Holders Company, such Net Available Cash shall be retained by the Trustee as Trust Moneys constituting Collateral subject to disposition as provided in this Section 4.06(a) or as provided under the Sections 12.04 and Article 13. At the written direction of the Securities, the particular Securities to be accepted shall be selected by such method as the Trustee shall deem fair and appropriate and which may provide for the selection of portions of the principal of Securities; provided, however, that no such partial acceptance shall reduce the portion of the principal amount of a Security not redeemed to less than, $1,000; and provided further that so long as the Securities are listed on any national securities exchange (as such term is defined in the Exchange Act)Company, such selection shall Net Available Cash may be made invested by the Trustee in accordance Temporary Cash Investments in which the Trustee can maintain a perfected security interest.
(6) The Company shall comply, to the extent applicable, with the requirements of Section 14(e) of the Exchange Act and any other securities laws or regulations in connection with the repurchase of Securities pursuant to a Collateral Sale Offer. To the extent that the provisions of such exchange. SECTION 1018. [Intentionally Omittedany securities laws or regulations conflict with provisions in this Indenture governing Collateral Sale Offers, the Company shall comply with the applicable securities laws and regulations and shall not be deemed to have breached its obligations under this clause by virtue thereof.] SECTION 1019. [Intentionally Omitted.] SECTION 1020. [Intentionally Omitted.] SECTION 1021. [Intentionally Omitted.] SECTION 1022. [Intentionally Omitted.] SECTION 1023. [Intentionally Omitted.] SECTION 1024. [Intentionally Omitted.] SECTION 1025. [Intentionally Omitted.] SECTION 1026. [Intentionally Omitted.] SECTION 1027. [Intentionally Omitted.] ARTICLE ELEVEN
Appears in 1 contract
Limitation on Asset Sales. Subject So long as any of the X-TRAS are outstanding, the Issuer may not sell, transfer or otherwise dispose of any property or assets of the Issuer, including Capital Stock of any Consolidated Subsidiary, in one transaction or a series of transactions in an amount which exceeds $50,000,000 (an "Asset Sale") unless the Issuer shall (i) apply an amount equal to and as permitted by such excess Net Cash Proceeds to permanently repay Indebtedness of a Consolidated Subsidiary or Indebtedness of the terms Issuer which is pari passu with the X-TRAS or (ii) invest an equal amount not so used in clause (i) in property or assets of this Indenture related business within 24 months after the Company shall not make any date of the Asset Sale of its properties unless (the "Application Period") or (iii) apply such excess Net Cash Proceeds not so used in (i) or (ii) (the "Excess Proceeds") to make an offer (the
(a) Within 30 days after the consideration received in end of the Asset Sale Application Period, the Issuer shall mail a notice (the "Excess Proceeds Repurchase Notice") to each Holder with copies to the Indenture Trustee, Pass Through Trustee and Extension Option Buyer stating:
(i) that the Issuer is equal making an Excess Proceeds Offer pusuant to Fair Market ValueSection 4.05 of the Sixth Supplemental Indenture;
(ii) the Excess Proceeds Purchase Price;
(iii) the date on which any Exceeds Proceeds Repurchase shall be made (which shall be no earlier than 60 days nor later than 90 days from the date such notice is mailed) (the "Excess Proceeds Purchase Date");
(iv) the name and address of the Paying Agent; and
(v) the procedures that Holders must follow to cause the X-TRAS to be repurchased, which shall be consistent with this Section and the Indenture.
(b) Holders electing to have X-TRAS repurchased must deliver a written notice (the proceeds therefrom consist "Excess Proceeds Purchase Notice") to the Paying Agent (initially the Indenture Trustee) at its corporate trust office in Detroit, Michigan, or any other office of at least 85% cash and/or Cash Equivalents; and (c) unless otherwise expressly provided hereinthe Paying Agent maintained for such purposes, not later than 30 days prior to the Net Cash Excess Proceeds of such Asset Sale Purchase Date. The Excess Proceeds Purchase Notice shall bestate: (i) applied in the manner described in the following paragraph; or (ii) retained by the Company to apply to the payment on its Securities when due. On or before the 180th day after the date on which the Company consummates the relevant Asset Sale and subject to and as permitted by the terms of this Indenture, the Company shall use all of the Net Cash Proceeds from such Asset Sale (other than amounts that the Company has determined to retain pursuant to clause (ii) of the preceding paragraph) to make either (a) an offer to purchase (the "Asset Sale Offer") from all holders of Securities up to a maximum principal amount (expressed as a multiple of $1,000) of Securities equal to such Net Cash Proceeds at a purchase price equal to 100% of the principal amount thereof plus accrued and unpaid interest thereon, if any, to the date of purchase or (b) a Permitted Investment; provided, that the Company shall not be required to make any Asset Sale Offer if the Net Cash Proceeds of all Asset Sales that are not used to make a Permitted Investment within 180 days, do not exceed $5 million. Each Asset Sale Offer shall remain open for a period of at least 20 business days. If the Asset Sale Offer is more than fully subscribed to by the Holders of the Securities, the particular Securities to be accepted shall be selected by such method as the Trustee shall deem fair and appropriate and which may provide for the selection of portions of the principal of Securities; provided, however, that no such partial acceptance shall reduce the portion of the principal amount of a Security not redeemed any X-TRAS to less thanbe repurchased, which portion must be $1,0001,000 or an integral multiple thereof; (ii) that such X-TRAS are to be repurchased by the Issuer pursuant to the Exceeds Proceeds Offer provisions of the Indenture; and provided further that so long (iii) unless the X-TRAS are represented by one or more Global Notes, the certificate numbers of the X-TRAS to be delivered by the Holder thereof for repurchase by the Issuer. Any Excess Proceeds Purchase Notice may be withdrawn by the Holder by a written notice of withdrawal delivered to the Paying Agent not later than three Business Days prior to the Excess Proceeds Purchase Date. The notice of withdrawal shall state the principal amount and, if applicable, the certificate numbers of the X-TRAS as to which the Securities are listed withdrawal notice relates and the principal amount of such X-TRAS, if any, which remain subject to an Excess Proceeds Purchase Notice.
(c) Payment of the Excess Proceeds Purchase Price for X-TRAS for which a Excess Proceeds Purchase Notice has been delivered and not withdrawn is conditioned upon delivery of such X-TRAS (together with necessary endorsements) to the Paying Agent at its office in Detroit, Michigan, or any other office of the Paying Agent maintained for such purpose, at any time (whether prior to, on any national securities exchange (as or after the Excess Proceeds Purchase Date) after the delivery of such term is defined in Excess Proceeds Purchase Notice. Payment of the Exchange Act), Excess Proceeds Purchase Price for such selection shall X-TRAS will be made by promptly following the Trustee later of the Excess Proceeds Purchase Date or the time of delivery of such X- TRAS. If the Paying Agent holds, in accordance with the terms of the Indenture, money sufficient to pay the Excess Proceeds Purchase Price of such X-TRAS on the Business Day following the Excess Proceeds Purchase Date, then, on and after such date, interest will cease accruing, and all other rights of the Holder shall terminate (other than the right to receive the Excess Proceeds Purchase Price upon delivery of the X-TRAS).
(d) The Issuer shall comply with the provisions of such exchange. SECTION 1018. [Intentionally OmittedRegulation 14E and any other tender offer rules under the Exchange Act, which may then be applicable in connection with any Excess Proceeds Offer.] SECTION 1019. [Intentionally Omitted.] SECTION 1020. [Intentionally Omitted.] SECTION 1021. [Intentionally Omitted.] SECTION 1022. [Intentionally Omitted.] SECTION 1023. [Intentionally Omitted.] SECTION 1024. [Intentionally Omitted.] SECTION 1025. [Intentionally Omitted.] SECTION 1026. [Intentionally Omitted.] SECTION 1027. [Intentionally Omitted.] ARTICLE ELEVEN
Appears in 1 contract
Samples: Supplemental Indenture (CMS Energy X Tras Pass Through Trust I)
Limitation on Asset Sales. Subject to and So long as permitted by any of the terms X-TRAS are outstanding, the Issuer may not sell, transfer or otherwise dispose of this Indenture any property or assets of the Company shall not make Issuer, including Capital Stock of any Consolidated Subsidiary, in one transaction or a series of transactions in an amount which exceeds $50,000,000 (an "Asset Sale of its properties Sale") unless the Issuer shall
(ai) the consideration received in the Asset Sale is apply an amount equal to Fair Market Value; (b) the proceeds therefrom consist of at least 85% cash and/or Cash Equivalents; and (c) unless otherwise expressly provided herein, the such excess Net Cash Proceeds to permanently repay Indebtedness of such Asset Sale shall be: (i) applied in a Consolidated Subsidiary or Indebtedness of the manner described in Issuer which is pari passu with the following paragraph; X-TRAS or (ii) retained by the Company to apply to the payment on its Securities when due. On invest an equal amount not so used in clause (i) in property or before the 180th day assets of related business within 24 months after the date on which of the Company consummates the relevant Asset Sale and subject to and as permitted by (the terms of this Indenture, the Company shall use all of the "Application Period") or (iii) apply such excess Net Cash Proceeds from such Asset Sale not so used in (other than amounts that the Company has determined to retain pursuant to clause i) or (ii) of (the preceding paragraph"Excess Proceeds") to make either (a) an offer (the "Excess Proceeds Offer"), within 30 days after the end of the Application Period, to purchase (the "Asset Sale OfferExcess Proceeds Repurchase") from all holders of Securities up to the Holders on a maximum pro rata basis an aggregate principal amount of X-TRAS on the Excess Proceeds Purchase Date (expressed as a multiple of $1,000defined herein) of Securities equal to the Excess Proceeds on such Net Cash Proceeds date, at a purchase price equal to 100% of the principal amount thereof plus accrued of the X-TRAS on the Excess Proceeds Purchase Date and unpaid interest thereoninterest, if any, to such date (the "Excess Proceeds Purchase Price") plus the ISDA Amount, if any, as of the Excess Proceeds Purchase Date as determined by the Extension Option Buyer as of such date and notified to the Issuer, the Indenture Trustee and the Pass Through Trustee by 10 a.m., New York City time, on such date. The Notional Amount used to determine the ISDA Amount shall be equal to the aggregate principal amount of purchase or (b) a Permitted Investment; provided, that the Company X-TRAS tendered for repurchase and not withdrawn. The Issuer shall not only be required to make any Asset Sale Offer an offer to purchase X-TRAS from Holders pursuant to subsection (iii) if the Net Cash Excess Proceeds of all Asset Sales that are not used to make a Permitted Investment within 180 days, do not equal or exceed $5 million. Each Asset Sale Offer shall remain open for a period of 25,000,000 at least 20 business days. If any given time.
(a) Within 30 days after the Asset Sale Offer is more than fully subscribed to by the Holders end of the SecuritiesApplication Period, the particular Securities Issuer shall mail a notice (the "Excess Proceeds Repurchase Notice") to each Holder with copies to the Indenture Trustee, Pass Through Trustee and Extension Option Buyer stating:
(i) that the Issuer is making an Excess Proceeds Offer pusuant to Section 4.05 of the Sixth Supplemental Indenture;
(ii) the Excess Proceeds Purchase Price;
(iii) the date on which any Exceeds Proceeds Repurchase shall be made (which shall be no earlier than 60 days nor later than 90 days from the date such notice is mailed) (the "Excess Proceeds Purchase Date");
(iv) the name and address of the Paying Agent; and
(v) the procedures that Holders must follow to cause the X-TRAS to be accepted repurchased, which shall be selected by such method as consistent with this Section and the Trustee shall deem fair and appropriate and which may provide for Indenture.
(b) Holders electing to have X-TRAS repurchased must deliver a written notice (the selection of portions "Excess Proceeds Purchase Notice") to the Paying Agent (initially the Indenture Trustee) at its corporate trust office in Detroit, Michigan, or any other office of the principal of Securities; providedPaying Agent maintained for such purposes, however, that no such partial acceptance not later than 30 days prior to the Excess Proceeds Purchase Date. The Excess Proceeds Purchase Notice shall reduce state: (i) the portion of the principal amount of a Security not redeemed any X-TRAS to less thanbe repurchased, which portion must be $1,0001,000 or an integral multiple thereof; (ii) that such X-TRAS are to be repurchased by the Issuer pursuant to the Exceeds Proceeds Offer provisions of the Indenture; and provided further that so long as (iii) unless the Securities X-TRAS are listed on any national securities exchange (as such term is defined in represented by one or more Global Notes, the Exchange Act), such selection shall certificate numbers of the X-TRAS to be made delivered by the Trustee in accordance with Holder thereof for repurchase by the provisions Issuer. Any Excess Proceeds Purchase Notice may be withdrawn by the Holder by a written notice of withdrawal delivered to the Paying Agent not later than three Business Days prior to the Excess Proceeds Purchase Date. The notice of withdrawal shall state the principal amount and, if applicable, the certificate numbers of the X-TRAS as to which the withdrawal notice relates and the principal amount of such exchange. SECTION 1018. [Intentionally OmittedX-TRAS, if any, which remains subject to a Excess Proceeds Purchase Notice.] SECTION 1019. [Intentionally Omitted.] SECTION 1020. [Intentionally Omitted.] SECTION 1021. [Intentionally Omitted.] SECTION 1022. [Intentionally Omitted.] SECTION 1023. [Intentionally Omitted.] SECTION 1024. [Intentionally Omitted.] SECTION 1025. [Intentionally Omitted.] SECTION 1026. [Intentionally Omitted.] SECTION 1027. [Intentionally Omitted.] ARTICLE ELEVEN
Appears in 1 contract
Samples: Supplemental Indenture (CMS Energy X Tras Pass Through Trust I)
Limitation on Asset Sales. Subject to Holdings shall not, and as permitted by the terms of this Indenture the Company shall not make permit any of its Restricted Subsidiaries to, consummate an Asset Sale of its properties unless (ai) Holdings or the applicable Restricted Subsidiary, as the case may be, receives consideration received in at the Asset Sale is equal to Fair Market Value; (b) the proceeds therefrom consist of at least 85% cash and/or Cash Equivalents; and (c) unless otherwise expressly provided herein, the Net Cash Proceeds time of such Asset Sale shall be: at least equal to the fair market value of the assets sold or otherwise disposed of (i) applied as determined in good faith by management of Holdings or, if such Asset Sale involves consideration in excess of $10,000,000, by the manner described in the following paragraph; or board of directors of Holdings, as evidenced by a board resolution), (ii) retained at least 75% of the consideration received by Holdings or such Restricted Subsidiary, as the Company 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) upon the consummation of an Asset Sale, Holdings applies, or causes such Restricted Subsidiary to apply apply, such Net Cash Proceeds within 180 days of receipt thereof either (A) to repay any Indebtedness of a Restricted Subsidiary of Holdings (and, to the payment on its Securities when due. On extent such Indebtedness relates to principal under a revolving credit or before similar facility, to obtain a corresponding reduction in the 180th day after the date on which the Company consummates the relevant Asset Sale and subject to and as permitted by the terms of this Indenturecommitments thereunder, the Company shall use all of except that Holdings may temporarily repay such Indebtedness using the Net Cash Proceeds from such Asset Sale (other than amounts that the Company has determined and thereafter use such funds to retain reinvest pursuant to clause (iiB) below within the period set forth therein without having to obtain a corresponding reduction in 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 preceding paragraph) to make either (a) an offer to purchase (the "Asset Sale Offer") from all holders date of Securities up to a maximum principal amount (expressed as a multiple receipt of $1,000) of Securities equal to such Net Cash Proceeds or (C) to purchase Securities (or Existing Holdings Notes) tendered to Holdings for purchase at a purchase price equal to (a) 101% of the Accreted Value thereof if redeemed on or before March 1, 2003, and (b) 100% of the principal amount thereof plus accrued and unpaid interest thereon, if any, to the date of purchase or pursuant to an offer to purchase made by Holdings (ba "Net Proceeds Offer") a Permitted Investment; providedif redeemed after March 1, that the Company shall not be required to make any Asset Sale Offer if the Net Cash Proceeds of all Asset Sales that are not used to make a Permitted Investment within 180 days, do not exceed $5 million. Each Asset Sale Offer shall remain open for a period of at least 20 business days. If the Asset Sale Offer is more than fully subscribed to by the Holders of the Securities, the particular Securities to be accepted shall be selected by such method as the Trustee shall deem fair and appropriate and which may provide for the selection of portions of the principal of Securities2003; provided, however, that no such partial acceptance shall reduce Holdings may defer making a Net Proceeds Offer until the portion of the principal amount of a Security aggregate net Cash Proceeds from Asset Sales not redeemed to less than, $1,000; and provided further that so long as the Securities are listed on any national securities exchange (as such term is defined in the Exchange Act), such selection shall be made by the Trustee otherwise applied in accordance with this Section 4.07 equal or exceed $15,000,000. Holdings shall comply with the provisions requirements of such exchange. SECTION 1018. [Intentionally OmittedRule 14e-1 under the Exchange Act to the extent applicable in connection with the repurchase of Securities pursuant to a Net Proceeds Offer.] SECTION 1019. [Intentionally Omitted.] SECTION 1020. [Intentionally Omitted.] SECTION 1021. [Intentionally Omitted.] SECTION 1022. [Intentionally Omitted.] SECTION 1023. [Intentionally Omitted.] SECTION 1024. [Intentionally Omitted.] SECTION 1025. [Intentionally Omitted.] SECTION 1026. [Intentionally Omitted.] SECTION 1027. [Intentionally Omitted.] ARTICLE ELEVEN
Appears in 1 contract
Samples: Indenture (Lin Television Corp)
Limitation on Asset Sales. Subject to and as permitted by the terms of this Indenture the Company shall not make any Asset Sale of its properties unless (a) The Company may not, and may not permit any Restricted Subsidiary to, directly or indirectly, consummate an Asset Sale (including the sale of any of the Capital Stock of any Restricted Subsidiary) providing for Net Proceeds in excess of $2,500,000 unless at least (A) 50% of the consideration thereof received by the Company or such Restricted Subsidiary is in the Asset Sale is equal to Fair Market Value; (b) the proceeds therefrom consist form of at least 85% cash and/or Cash Equivalents; Equivalents and/or Marketable Securities, and (cB) unless otherwise expressly provided herein, the Net Cash Proceeds of such Asset Sale shall be: (i) applied in the manner described in the following paragraph; or (ii) retained by the Company to apply to the payment on its Securities when due. On or before the 180th day after the date on which the Company consummates the relevant Asset Sale and subject to and as permitted by the terms of this Indenture, the Company shall use all 75% of the Net Cash Proceeds from such Asset Sale (other than amounts that are applied to one or more of the following in such combination as the Company has determined shall elect:
(i) an investment in another asset or business in the same line of business as, or a line of business similar to retain pursuant to clause (ii) that of, the line of business of the preceding paragraph) Company and its Restricted Subsidiaries at that time; provided that such investment occurs on or prior to make either (a) an offer to purchase the 365th day following the date of such Asset Sale (the "Asset Sale OfferDisposition Date"),
(ii) the purchase, redemption or other prepayment or repayment of outstanding Senior Indebtedness on or prior to the Asset Sale Disposition Date, or
(iii) an Offer expiring on or prior to the Purchase Date.
(b) Any Net Proceeds from the Asset Sale that are not applied or invested as provided in Sections 4.14(a)(i) or (a)(ii) shall constitute "Excess Proceeds."
(c) When the aggregate amount of Excess Proceeds exceeds $10,000,000 (the "Asset Sale Trigger Date"), the Company shall make an Offer to all holders of Securities up Holders to a purchase the maximum principal amount (expressed as a multiple of $1,000) the Securities then outstanding that may be purchased out of Securities equal to such Net Cash Proceeds Excess Proceeds, at a purchase an offer price in cash in an amount equal to 100% of the outstanding principal amount thereof thereof, plus any accrued and unpaid interest thereonto the Purchase Date.
(d) To the extent that any Excess Proceeds remain after completion of the Offer, if anythe Company may use such remaining amount for general corporate purposes.
(e) Upon completion of an Offer, the amount of Excess Proceeds shall be reset at zero.
(f) Notwithstanding the foregoing, to the date extent that any or all of purchase the Net Proceeds of an Asset Sale is prohibited or (b) a Permitted Investment; provideddelayed by applicable local law from being repatriated to the United States, that the Company shall portion of such Net Proceeds so affected will not be required to make be applied pursuant to this Section 4.14, but may be retained for so long, but only for so long, as the applicable local law prohibits repatriation to the United States. The Company will promptly take all reasonable actions required by the applicable local law to permit such repatriation, and once such repatriation of any affected Net Proceeds is not prohibited under applicable local law, such repatriation will be immediately effected and such repatriated Net Proceeds will be applied in the manner set forth above as if such Asset Sale Offer if had occurred on the Net Cash Proceeds date of all Asset Sales that are not used to make a Permitted Investment within 180 days, do not exceed $5 million. Each Asset Sale Offer shall remain open for a period of at least 20 business days. If the Asset Sale Offer is more than fully subscribed to by the Holders of the Securities, the particular Securities to be accepted shall be selected by such method as the Trustee shall deem fair and appropriate and which may provide for the selection of portions of the principal of Securities; provided, however, that no such partial acceptance shall reduce the portion of the principal amount of a Security not redeemed to less than, $1,000; and provided further that so long as the Securities are listed on any national securities exchange (as such term is defined in the Exchange Act), such selection shall be made by the Trustee in accordance with the provisions of such exchange. SECTION 1018. [Intentionally Omittedrepatriation.] SECTION 1019. [Intentionally Omitted.] SECTION 1020. [Intentionally Omitted.] SECTION 1021. [Intentionally Omitted.] SECTION 1022. [Intentionally Omitted.] SECTION 1023. [Intentionally Omitted.] SECTION 1024. [Intentionally Omitted.] SECTION 1025. [Intentionally Omitted.] SECTION 1026. [Intentionally Omitted.] SECTION 1027. [Intentionally Omitted.] ARTICLE ELEVEN
Appears in 1 contract
Samples: Indenture (Jordan Industries Inc)
Limitation on Asset Sales. Subject to The Company will not, and as permitted by the terms of this Indenture the Company shall will not permit any Restricted Subsidiary to, make any Asset Sale of its properties unless the following conditions are met:
(a) The Asset Sale is for fair market value, as determined in good faith by the Board of Directors.
(b) At least 75% of the consideration received by the Company or such Restricted Subsidiary consists of cash received at closing (except in the case of a Permitted Asset Sale is equal to Fair Market Value; Swap). For purposes of this clause (b): the assumption by the purchaser of Debt or other obligations (other than Subordinated Debt) of the proceeds therefrom consist Company or a Restricted Subsidiary pursuant to a customary novation agreement, and instruments or securities received from the purchaser that are promptly, but in any event within 60 days of the closing, converted by the Company to cash, to the extent of the cash actually so received, shall be considered cash received at least 85% cash and/or Cash Equivalents; and closing.
(c) unless otherwise expressly provided hereinWithin 365 days after the receipt of any Net Cash Proceeds from an Asset Sale, the Net Cash Proceeds of such Asset Sale shall be: may be used
(i) applied to repay Debt under the Credit Agreements in each case owing to a Person other than the manner described in the following paragraph; Company or any Restricted Subsidiary, or
(ii) retained by to acquire all or substantially all of the Company assets of a Permitted Business, or a majority of the Voting Stock of another Person that thereupon becomes a Restricted Subsidiary engaged in a Permitted Business, or to apply make capital expenditures or otherwise acquire long-term assets that are to the payment on its Securities when due. On or before the 180th day after the date on which the Company consummates the relevant Asset Sale and subject to and be used in a Permitted Business; provided that a binding commitment shall be treated as a permitted by the terms of this Indenture, the Company shall use all application of the Net Cash Proceeds from the date of such commitment if (x) such acquisition or capital expenditure is consummated within 545 days after receipt by the Company or any Restricted Subsidiary of the Net Cash Proceeds of any Asset Sale and (other than amounts that y) if such acquisition or capital expenditure is not consummated within the Company has determined period set forth in subclause (x), the Net Cash Proceeds not so applied will be deemed to retain be Excess Proceeds (as defined below).
(d) The Net Cash Proceeds of an Asset Sale not applied pursuant to clause (c) within the time periods specified therein constitute “Excess Proceeds”. Excess Proceeds of less than $10.0 million will be carried forward and accumulated. Subject to the Intercreditor Agreement, when accumulated Excess Proceeds equal or exceed $10.0 million, the Company must, within 30 days, make an Offer to 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 preceding paragraphNotes and (y) the denominator of which is equal to make either (a) an offer to purchase (the "Asset Sale Offer") from all holders of Securities up to a maximum outstanding principal amount (expressed of the Notes and all pari passu Debt that is also secured by Collateral on the same basis as a multiple of the Notes and similarly required to be repaid, redeemed or tendered for in connection with the Asset Sale, rounded down to the nearest $1,000) of Securities equal to such Net Cash Proceeds at a 1.00. The purchase price equal to for the Notes will be 100% of the principal amount thereof plus accrued and unpaid interest thereon, if any, to the date of purchase or (b) a Permitted Investment; provided, that the Company shall not be required to make any Asset Sale Offer if the Net Cash Proceeds of all Asset Sales that are not used to make a Permitted Investment within 180 days, do not exceed $5 millionpurchase. Each Asset Sale Offer shall remain open for a period of at least 20 business days. If the Asset Sale Offer is more than fully subscribed to by the Holders Upon completion of the SecuritiesOffer to Purchase, the particular Securities to Excess Proceeds will be accepted shall be selected by such method as the Trustee shall deem fair reset at zero, and appropriate and which may provide for the selection of portions any Excess Proceeds remaining after consummation of the principal of Securities; provided, however, that no such partial acceptance shall reduce the portion of the principal amount of a Security Offer to Purchase may be used for any purpose not redeemed to less than, $1,000; and provided further that so long as the Securities are listed on any national securities exchange (as such term is defined in the Exchange Act), such selection shall be made otherwise prohibited by the Trustee in accordance with the provisions of such exchange. SECTION 1018. [Intentionally Omittedthis Indenture.] SECTION 1019. [Intentionally Omitted.] SECTION 1020. [Intentionally Omitted.] SECTION 1021. [Intentionally Omitted.] SECTION 1022. [Intentionally Omitted.] SECTION 1023. [Intentionally Omitted.] SECTION 1024. [Intentionally Omitted.] SECTION 1025. [Intentionally Omitted.] SECTION 1026. [Intentionally Omitted.] SECTION 1027. [Intentionally Omitted.] ARTICLE ELEVEN
Appears in 1 contract
Samples: Indenture (NFC Castings Inc)
Limitation on Asset Sales. Subject to and as permitted by the terms of this Indenture the (a) The Company shall not make engage in, and shall not permit any Subsidiary to engage in, any Asset Sale of its properties unless (ai) the consideration received except in the case of an Asset Sale is equal to Fair Market Value; (b) resulting from the proceeds therefrom consist requisition of at least 85% cash and/or Cash Equivalents; and (c) unless otherwise expressly provided hereintitle to, seizure or forfeiture of any Property or assets or any actual or constructive total loss or an agreed or compromised total loss, the Net Cash Proceeds Company or such Subsidiary, as the case may be, receives consideration at the time of such Asset Sale shall be: (i) applied in at least equal to the manner described in Fair Market Value of the following paragraphProperty; or (ii) retained at least 75% of such consideration consists of Cash Proceeds (or the assumption of Indebtedness of the Company or such Subsidiary relating to the Capital Stock or Property or asset that was the subject of such Asset Sale and the unconditional release of the Company or such Subsidiary from such Indebtedness); (iii) after giving effect to such Asset Sale, the total non-cash consideration held by the Company to apply from all such Asset Sales does not exceed $10,000,000; and (iv) the Company delivers to the payment on Trustee an Officers' Certificate certifying that such Asset Sale complies with clauses (i), (ii) and (iii). The Company or such Subsidiary, as the case may be, may apply the Net Available Proceeds from each Asset Sale (x) to the acquisition of one or more Replacement Assets, or (y) to repurchase or repay Senior Debt (with a permanent reduction of availability in the case of revolving credit borrowings); provided that such acquisition or such repurchase or repayment shall be made within 365 days after the consummation of the relevant Asset Sale; provided, further, that any such Net Available Proceeds that are applied to the acquisition of Replacement Assets pursuant to any binding agreement to construct any new marine vessel useful in the business of the Company or any of its Securities when due. On or before Subsidiaries shall be deemed to have been applied for such purpose within such 365-day period so long as they are so applied within 18 months of the 180th day effective date of such agreement but no later than two years after the date on which the Company consummates of receipt of such Net Available Proceeds.
(b) Any Net Available Proceeds from any Asset Sale that are not used to so acquire Replacement Assets or to repurchase or repay Senior Debt within 365 days after consummation of the relevant Asset Sale and subject to and as permitted by constitute "Excess Proceeds." When the terms aggregate amount of this IndentureExcess Proceeds exceeds $15,000,000, the Company shall use all within 30 days thereafter, or at any time after receipt of the Net Cash Excess Proceeds from such Asset Sale (other than amounts that but prior to there being $15,000,000 of Excess Proceeds, the Company has determined to retain pursuant to clause may, at its option, make a pro rata offer (ii) of the preceding paragraph) to make either (a) an offer to purchase (the "Asset Sale Offer") from to all holders of Securities up Senior Notes and holders of Senior Debt, if and to a maximum principal the extent the Company is required by the instruments governing such Senior Debt to make such an offer, to purchase Senior Notes and such Senior Debt in an aggregate amount (expressed as a multiple of $1,000) of Securities equal to such Net Cash Proceeds the Excess Proceeds, at a purchase price in cash (the "Asset Sale Offer Purchase Price") equal to 100% of the outstanding principal amount thereof of the Senior Notes plus accrued interest and unpaid interest thereonSpecial Interest, if any, to the date of purchase or (b) a Permitted Investment; providedand, that in the case of such other Senior Debt, 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 this Section 4.15. Upon completion of such Asset Sale Offer, the amount of Excess Proceeds shall be reset to zero and the Company shall not be required to make may use any remaining amount for general corporate purposes.
(c) The Asset Sale Offer if the Net Cash Proceeds of all Asset Sales that are not used to make a Permitted Investment within 180 days, do not exceed $5 million. Each Asset Sale Offer shall will remain open for a period of at least 20 business 30 days following its commencement but no longer than 60 days, except to the extent that a longer period is required by applicable law (the "Asset Sale Offer Period"). On the Business Day following the termination of the Asset Sale Offer Period (the "Asset Sale Purchase Date"), the Company will purchase the principal amount of Senior Notes required to be purchased pursuant to this Section 4.10 (the "Asset Sale Offer Amount") or, if less than the Asset Sale Offer amount has been so validly tendered and not properly withdrawn, all Senior Notes validly tendered and not properly withdrawn in response to the Asset Sale Offer. Payment for any Senior Notes so purchased will be made in the same manner as interest payments are made on the Senior Notes. If the Asset Sale Purchase Date is on or after a Record Date and on or before the related Interest Payment Date, any accrued and unpaid interest and Special Interest, if any, shall be paid to the Person in whose name a Senior Note is registered at the close of business on such Record Date, and no additional interest (or Special Interest (to the extent involving interest that is due and payable on such Interest Payment Date), if any) shall be payable to Holders who tender Senior Notes pursuant to the Asset Sale Offer.
(d) Upon the commencement of an Asset Sale Offer, the Company shall send, by first class mail, a notice to the Trustee and each of the Holders. The notice shall contain all instructions and materials necessary to enable such Holders to tender Senior Notes pursuant to the Asset Sale Offer. The Asset Sale Offer shall be made to all Holders. The notice, which shall govern the terms of the Asset Sale Offer, shall state:
(i) that the Asset Sale Offer is more than fully subscribed being made pursuant to this Section 4.15 and the Asset Sale Offer Period during which the Asset Sale Offer shall remain open;
(ii) the Asset Sale Offer Amount, the Asset Sale Offer Purchase Price and the Asset Sale Purchase Date;
(iii) that any Senior Notes which are not validly tendered or are not otherwise accepted for payment shall continue to accrue interest and Special Interest, if applicable;
(iv) that, unless the Company defaults in making such payment, any Senior Note accepted for payment pursuant to the Asset Sale Offer shall cease to accrue interest and Special Interest, if applicable, after the Asset Sale Purchase Date;
(v) that any Holder electing to have a Senior Note purchased pursuant to any Asset Sale Offer shall be required to surrender the Senior Note, with the form entitled "Option of Holder to Elect Purchase" on the reverse of the Senior Note completed, or transfer by book-entry transfer, to the Company, a depositary, if appointed by the Company, or a Paying Agent at the address specified in the notice at least three days before the Asset Sale Purchase Date;
(vi) that Holders shall be entitled to withdraw their election if the Company, the Depositary or the Paying Agent, as the case may be, receives, no later than the expiration of the SecuritiesAsset Sale Offer Period, a telegram, facsimile transmission or letter setting forth the particular Securities to be accepted shall be selected by such method as the Trustee shall deem fair and appropriate and which may provide for the selection of portions name of the principal of Securities; providedHolder, however, that no such partial acceptance shall reduce the portion of the principal amount of the Senior Note the Holder delivered for purchase and a Security not redeemed statement that such Holder is withdrawing his election to less thanhave such Senior Note purchased;
(vii) that, if the aggregate principal amount of Senior Notes surrendered by Holders exceeds the Asset Sale Offer Amount, the Company shall select the Senior Notes to be purchased on a pro rata basis (with such adjustments as may be deemed appropriate by the Company so that only Senior Notes in denominations of $1,000; and provided further that so long as the Securities are listed on any national securities exchange (as such term is defined in the Exchange Act), such selection or integral multiples thereof, shall be made purchased); and
(viii) that Holders whose Senior Notes were purchased only in part shall be issued new Senior Notes equal in principal amount to the unpurchased portion of the Senior Notes surrendered (or transferred by book-entry transfer).
(e) On or before the Asset Sale Purchase Date, the Company shall, to the extent lawful, (1) accept for payment, on a pro rata basis to the extent necessary, the Asset Sale Offer Amount of Senior 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 so validly tendered and not properly withdrawn, all Senior Notes validly tendered and not properly withdrawn, (2) deposit by 12:00 noon New York City time, on such date with the Paying Agent an amount equal to Asset Sale Offer Amount, plus accrued and unpaid interest, and Special Interest, if any, in respect of all Senior Notes, or portions thereof, so accepted and (3) shall deliver to the Trustee an Officers' Certificate stating that such Senior Notes or portions thereof were accepted for payment by the Trustee Company in accordance with the provisions terms of this Section 4.15. The Company, the Depositary or the Paying Agent, as the case may be, shall promptly (but in any case not later than five days after the Asset Sale Purchase Date) mail or deliver to each tendering Holder an amount equal to the Asset Sale Offer Purchase Price of the Senior Notes validly tendered and not properly withdrawn by such Holder and accepted by the Company for purchase. Upon surrender and cancellation of a Certificated Senior Note that is purchased in part, the Company shall promptly issue and the Trustee shall authenticate and deliver to the surrendering Holder of such exchangeCertificated Senior Note a new Certificated Senior Note equal in principal amount to the unpurchased portion of such surrendered Certificated Senior Note; provided that each such new Certificated Senior Note shall be in a principal amount at Maturity of $1,000 or an integral multiple thereof. SECTION 1018Upon surrender of a Global Note that is purchased in part pursuant to an Asset Sale Offer, the Paying Agent shall forward such Global Note to the Trustee who shall make a notation on Schedule A thereof to reduce the principal amount of such Global Note to an amount equal to the unpurchased portion of such Global Note, as provided in Section 2.6 hereof. [Intentionally OmittedAny Senior Note not so accepted shall be promptly mailed or delivered by the Company to the Holder thereof. The Company shall publicly announce the results of the Asset Sale offer on the Asset Sale Purchase Date. For purposes of this Section 4.15, the Trustee shall act as the Paying Agent.] SECTION 1019. [Intentionally Omitted
(f) The Company shall comply with any applicable tender offer rules (including, without limitation, any applicable requirements of Rule 14e-1 under the Exchange Act) in the event that an Asset Sale Offer is required under the circumstances described herein.] SECTION 1020. [Intentionally Omitted.] SECTION 1021. [Intentionally Omitted.] SECTION 1022. [Intentionally Omitted.] SECTION 1023. [Intentionally Omitted.] SECTION 1024. [Intentionally Omitted.] SECTION 1025. [Intentionally Omitted.] SECTION 1026. [Intentionally Omitted.] SECTION 1027. [Intentionally Omitted.] ARTICLE ELEVEN
Appears in 1 contract
Samples: Indenture (Hvide Marine Inc)
Limitation on Asset Sales. Subject to and as permitted by the terms of this Indenture (a) Neither the Company nor any Restricted Subsidiary shall not make consummate any Asset Sale of its properties (other than an Asset Sale in connection with a sale-leaseback transaction complying with Section 3.10) unless (ai) the Company or such Restricted Subsidiary receives consideration received in at the Asset Sale is equal to Fair Market Value; (b) the proceeds therefrom consist of at least 85% cash and/or Cash Equivalents; and (c) unless otherwise expressly provided herein, the Net Cash Proceeds time of such Asset Sale shall be: having a value (iincluding the value of any noncash consideration, as determined in good faith by the Board of Directors) applied at least equal to the fair market value (as determined in good faith by the manner described in Board of Directors) of the following paragraph; shares or assets subject to such Asset Sale, (ii) retained by at least 80% of such consideration is in the form of cash (including, for purposes of this clause (ii), (A) the principal amount of any Indebtedness (as reflected on the Company's consolidated balance sheet) of the Company to apply to the payment on its Securities when due. On or before the 180th day after the date on any Restricted Subsidiary for which the Company consummates the relevant and its Restricted Subsidiaries will cease to be liable, directly or indirectly, as a result of such Asset Sale Sale; and subject to (B) securities that are promptly converted into cash) and as permitted by the terms of this Indenture, the Company shall use all (iii) 100% of the Net Cash Proceeds from with respect to such Asset Sale are applied by the Company or such Restricted Subsidiary as set forth in the succeeding paragraph. Notwithstanding the foregoing, any Asset Sale constituting the sale of all or any portion of the retail business of the Company and its Restricted Subsidiaries existing as of the date hereof that are not located in Puerto Rico or Florida (including the sale of individual stores) need not comply with clause (a)(ii) of the preceding sentence. In the event and to the extent that the Net Cash Proceeds received by the Company or any Restricted Subsidiary from one or more Asset Sales in any period of 12 consecutive months (other than amounts Asset Sales by the Company or another Restricted Subsidiary to the Company or another Restricted Subsidiary) exceed 15% of Consolidated Net Tangible Assets in any one fiscal year (determined as of the date closest to the commencement of such 12-month period for which a balance sheet of the Company and its Subsidiaries has been prepared), then within 12 months following the date of such event, the Company or such Restricted Subsidiary shall apply such excess Net Cash Proceeds (A) first, to the extent the Company or such Subsidiary elects, to invest (or to enter into a definitive agreement committing so to invest within 12 months after the date of such agreement) in property or assets that (as determined in good faith by the Board of Directors) are of a nature or type or are used in a business (or in a company having property and assets of a nature or type, or engaged in a business) similar or related to the nature or type of the property and assets of, or to the business of, the Company and its Restricted Subsidiaries existing on the date of such Asset Sale; (B) second, to the extent of the balance of such excess Net Cash Proceeds after application in accordance with clause (A) and to the extent the Company or such Restricted Subsidiary elects, to prepay, repay or purchase Securities or Indebtedness of any Restricted Subsidiary; provided that the Company has determined or such Restricted Subsidiary shall repay such Indebtedness and cause the related loan commitment to retain be permanently reduced in an amount equal to the principal amount so prepaid, repaid or purchased and (C) third, to the extent of the balance of such excess Net Cash Proceeds after application in accordance with clauses (A) and (B), to make an offer to purchase Securities as set forth below. The amount of such excess Net Cash Proceeds required to be applied (or committed to be applied) during such 12-month period as set forth in clause (A) or (B) of the preceding sentence and not applied as so required by the end of such period shall constitute "Excess Proceeds". To the extent the property that is the subject of an Asset Sale consists of Collateral, the Company shall cause the Net Cash Proceeds thereof to be deposited with the Banks (or an agent or representative on their behalf) or, in the event that the Bank Credit Agreement shall have been paid in full (and no commitments thereunder shall be outstanding), with the Trustee in the Collateral Account, and shall maintain such deposit with the Banks (or such agent or representative), or with the Trustee in the Collateral Account, until such time as such Net Cash Proceeds shall be applied as provided above and, in that connection, the Trustee agrees to release any such Net Cash Proceeds (and, to the extent required, to authorize the Banks, or any such agent or representative, to release such Net Cash Proceeds) to the Company upon delivery of an Officers' Certificate to the Trustee stating that the Net Cash Proceeds to be released will be applied as provided above; provided that if any Net Cash Proceeds are reinvested in property or assets pursuant to clause (iiA) of the preceding paragraph, the Company shall ensure that any Capital Stock that is owned by the Company (whether previously owned by it or acquired by it as a result of such reinvestment) is pledged to the Trustee as Collateral under the Security Pledge and Intercreditor Agreement and the Company shall execute such appropriate documentation as shall be necessary to effect such pledge.
(b) If, as of the first day of any calendar month, the aggregate amount of Excess Proceeds not theretofore subject to an Excess Proceeds Offer (as defined below) totals at least $10 million, the Company must, not later than the fifteenth Business Day of such month, make either (a) an offer to purchase (the an "Asset Sale Excess Proceeds Offer") to purchase from all holders of Securities up to the Holders on a maximum pro rata basis an aggregate principal amount (expressed as a multiple of $1,000) of Securities equal to the Excess Proceeds on such Net Cash Proceeds date (rounded down to the nearest $500), at a purchase price equal to 100101% of the principal amount thereof plus of such Securities, plus, in each case, accrued and unpaid interest thereon, (if any, ) to the date of purchase or (bthe "Excess Proceeds Payment").
(c) The Company shall commence an Excess Proceeds Offer by mailing a Permitted Investment; provided, that notice to the Trustee and each Holder as of such record date as the Company shall establish (and delivering such notice to the Trustee at least five days prior thereto) stating:
(i) that the Excess Proceeds Offer is being made pursuant to this Section 3.09 and that all Securities validly tendered will be accepted for payment on a pro rata basis;
(ii) the purchase price and the date of purchase (which shall be a Business Day no earlier than 30 days nor later than 60 days from the date such notice is mailed) (the "Excess Proceeds Payment Date");
(iii) that any Security not tendered will continue to accrue interest;
(iv) that, unless the Company defaults in the payment of the Excess Proceeds Payment, any Security accepted for payment pursuant to the Excess Proceeds Offer shall cease to accrue interest on and after the Excess Proceeds Payment Date;
(v) that Holders electing to have any Security purchased pursuant to the Excess Proceeds Offer will be required to make any Asset Sale Offer surrender such Security, together with the form entitled "Option of the Holder to Elect Purchase" on the reverse side 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 immediately preceding the Excess Proceeds Payment Date;
(vi) that Holders will be entitled to withdraw their election if the Net Cash Paying Agent receives, not later than the close of business on the third Business Day immediately preceding the Excess Proceeds Payment Date, a telegram, telex, facsimile transmission or letter setting forth the name of all Asset Sales that are not used to make a Permitted Investment within 180 dayssuch Holder, do not exceed $5 million. Each Asset Sale Offer shall remain open for a period of at least 20 business days. If the Asset Sale Offer is more than fully subscribed to by the Holders of the Securities, the particular Securities to be accepted shall be selected by such method as the Trustee shall deem fair and appropriate and which may provide for the selection of portions of the principal of Securities; provided, however, that no such partial acceptance shall reduce the portion of the principal amount of Securities delivered for purchase and a Security not redeemed statement that such Holder is withdrawing his election to less than, $1,000have such Securities purchased; and provided further and
(vii) that so long as Holders whose Securities are being purchased only in part will be issued new Securities equal in principal amount to the unpurchased portion of the Securities are listed on any national securities exchange (as such term is defined in the Exchange Act), such selection surrendered; provided that each Security purchased and each new Security issued shall be made in a principal amount of $500 or integral multiples thereof. At least five days prior to the date notice is mailed to each Holder, the Company shall furnish the Trustee with an Officers' Certificate stating the amount of the Excess Proceeds Payment.
(d) On the Excess Proceeds Payment Date, the Company shall:
(i) accept for payment on a pro rata basis Securities or portions thereof tendered pursuant to the Excess Proceeds Offer;
(ii) deposit one day prior to the Excess Proceeds Payment Date with the Paying Agent money sufficient to pay the aggregate purchase price of all Securities or portions thereof so accepted; and
(iii) deliver, or cause to be delivered, to the Trustee, all Securities or portions thereof so accepted, together with an Officers' Certificate specifying the Securities or portions thereof accepted for payment by the Company. The Paying Agent shall promptly mail to each Holder of Securities so accepted payment in an amount equal to the purchase price of the Securities tendered by such Holder and accepted by the Company, and the Trustee in accordance with the provisions of shall promptly authenticate and mail to such exchange. SECTION 1018. [Intentionally Omitted.] SECTION 1019. [Intentionally Omitted.] SECTION 1020. [Intentionally Omitted.] SECTION 1021. [Intentionally Omitted.] SECTION 1022. [Intentionally Omitted.] SECTION 1023. [Intentionally Omitted.] SECTION 1024. [Intentionally Omitted.] SECTION 1025. [Intentionally Omitted.] SECTION 1026. [Intentionally Omitted.] SECTION 1027. [Intentionally Omitted.] ARTICLE ELEVENHolders
Appears in 1 contract
Limitation on Asset Sales. Subject to and as permitted by the terms of this Indenture the The Company shall not, and shall not make permit any of its Restricted Subsidiaries to, directly or indirectly, consummate any Asset Sale that results in Net Proceeds in excess of its properties $1.5 million (including the sale of any of the Capital Stock of any Restricted Subsidiary) unless (a) the consideration received in the such Asset Sale is equal to Fair Market Value; (b) for fair market value as determined by the proceeds therefrom consist Board of at least 85% cash and/or Cash Equivalents; Directors acting reasonably and (c) unless otherwise expressly provided herein, in good faith and the Company or any Restricted Subsidiary applies the Net Cash Proceeds of such Asset Sale shall be: (i) applied in the manner described in the following paragraph; or (ii) retained by the Company to apply to the payment on its Securities when due. On or before the 180th day after the date on which the Company consummates the relevant Asset Sale and subject to and as permitted by the terms of this Indenture, the Company shall use all of the Net Cash Proceeds from such Asset Sale to one or more of the following in such combination as it shall choose: (a) an investment in assets (including Capital Stock or other than amounts that securities purchased in connection with the acquisition of Capital Stock or property of another Person) used or useful in businesses similar or ancillary to the business of the Company has determined or its Restricted Subsidiaries as conducted at the time of such Asset Sale; PROVIDED that such investment occurs on or prior to retain pursuant the 366th day following the date of such Asset Sale (the "Asset Sale Payment Date"); (b) a Net Proceeds Offer (as defined below) expiring on or prior to the Asset Sale Payment Date; or (c) in the case of an Asset Sale by the Company, the purchase, redemption or other prepayment or repayment of outstanding Senior Indebtedness on or prior to the Asset Sale Payment Date and, in the case of an Asset Sale by any Restricted Subsidiary, the purchase, redemption or other prepayment or repayment of any Indebtedness of such Restricted Subsidiary on or prior to the Asset Sale Payment Date; PROVIDED that any prepayment or repayment of amounts outstanding under the Credit Agreement in excess of $20.0 million in the aggregate after the Issue Date shall be a permanent reduction in the commitment thereunder in the amount of such excess. Notwithstanding the foregoing, in the event such Net Proceeds, after giving effect to any investment or payment permitted by clause (iia) or (c) above (the "Excess Proceeds"), are less than $15.0 million, the application of the Excess Proceeds to a Net Proceeds Offer may be deferred until such time as the Excess Proceeds, plus the aggregate amount of any subsequent Net Proceeds not otherwise invested or applied to repay amounts outstanding under the Senior Indebtedness of the Company or under the Indebtedness of any Restricted Subsidiary, as the case may be, as permitted by clause (a) or (c) above, are at least equal to $15.0 million, at which time the Company shall apply all the Excess Proceeds to a Net Proceeds Offer. Upon completion of a Net Proceeds Offer, the amount of Excess Proceeds shall be reset at zero. For purposes of clause (b) of the preceding paragraph) , the Company will apply that portion of the Net Proceeds of the Asset Sale required to make either a tender offer in accordance with applicable law (a) an offer to purchase (the a "Asset Sale Net Proceeds Offer") from all holders of to repurchase Securities up to a maximum principal amount (expressed as a multiple of $1,000) of Securities equal to such Net Cash Proceeds at a purchase price equal to not less than 100% of the principal amount thereof plus accrued and unpaid interest thereon, if any, to the date of purchase or repurchase, which date shall be no earlier than 30 days nor later than 45 days after the date of mailing of the Net Proceeds Offer (b) a Permitted Investment; providedthe "Net Proceeds Payment Date"). The Company may, that at its option, receive credit against any Net Proceeds Offer for the principal amount of Securities acquired by the Company or any of its Subsidiaries and surrendered for cancellation within six months prior to or at any time after the date of such Asset Sale relating to such Net Proceeds Offer and before the Net Proceeds Payment Date. Any Net Proceeds Offer will be made by the Company only if and to the extent permitted under, and subject to prior compliance with, the terms of any agreement governing Senior Indebtedness of the Company or Indebtedness of a Restricted Subsidiary, as the case may be. If the Company commences a Net Proceeds Offer and securities of the Company ranking PARI PASSU in right of payment with the Securities are outstanding at the commencement of such Net Proceeds Offer and the terms of such securities provide that a similar offer must be made with respect thereto, then the Net Proceeds Offer for the Securities shall be made concurrently with such other offer and securities of each issue will be accepted PRO RATA in proportion to the aggregate principal amount of securities of each issue which the holders of securities of such issue elect to have purchased. After the last date on which Holders are permitted to tender their Securities in a Net Proceeds Offer, the Company will not be required restricted under this Section 4.12 as to its use of any remaining Net Proceeds available to make any Asset Sale such Net Proceeds Offer if the Net Cash Proceeds of all Asset Sales that are but not used to redeem Securities pursuant hereto. Notwithstanding the foregoing, if, at the time of an Asset Sale by the Company or any Restricted Subsidiary, the Company's Fixed Charge Coverage Ratio for the four fiscal quarter period ending immediately prior to the date of such Asset Sale would have been at least 2.75 to 1, determined on a PRO FORMA basis as if such Asset Sale occurred at the beginning of such four-quarter period, then any Net Proceeds received will not be subject to this Section 4.12. At such time as the Company determines to make a Permitted Investment within 180 daysNet Proceeds Offer, do not exceed $5 millionit shall so notify the Trustee in writing. Each Asset Sale Within 15 days thereafter, it shall mail or cause the Trustee to mail (in the Company's name and at its expense) notice of a Net Proceeds Offer to the Holders of the Securities at their last registered addresses with a copy to the Trustee and the Paying Agent. The Net Proceeds Offer shall remain open from the time of mailing for a period of at least 20 Business Days and until the close of business dayson the third Business Day prior to the Net Proceeds Payment Date. If The notice shall contain all instructions and materials necessary to enable such Holders to tender Securities pursuant to the Asset Sale Net Proceeds Offer. The notice, which shall govern the terms of the Net Proceeds Offer, shall state:
(i) that the Net Proceeds Offer is more being made pursuant to this Section 4.12;
(ii) the purchase price (including the amount of accrued and unpaid interest, if any) for each Security and the Net Proceeds Payment Date;
(iii) that any Security not tendered or accepted for payment will continue to accrue interest in accordance with the terms thereof;
(iv) that any Security accepted for payment pursuant to the Net Proceeds Offer shall cease to accrue interest after the Net Proceeds Payment Date unless the Company shall fail to make payment therefor;
(v) that Holders electing to have Securities purchased pursuant to a Net Proceeds Offer will be required to surrender their Securities to the Paying Agent at the address specified in the notice prior to 5:00 p.m., New York City time, on the third Business Day immediately preceding the Net Proceeds Payment Date and must complete any form letter of transmittal proposed by the Company and acceptable to the Trustee and the Paying Agent;
(vi) that Holders will be entitled to withdraw their election if the Paying Agent receives, not later than 5:00 p.m., New York City time, on the third Business Day immediately preceding the Net Proceeds Payment Date, a telex or facsimile transmission (confirmed by overnight delivery of the original thereof) or letter setting forth the name of the Holder, the principal amount of Securities the Holder delivered for purchase, the Security certificate number (if any) and a statement that such Holder is withdrawing his election to have such Securities purchased;
(vii) that if Securities in a principal amount in excess of the Holders' PRO RATA share of the Net Proceeds are tendered pursuant to a Net Proceeds Offer, the Company shall purchase Securities on a PRO RATA basis among the Securities tendered (with such adjustments as may be deemed appropriate by the Company so that only Securities in denominations of $1,000 or integral multiples of $1,000 shall be acquired);
(viii) that Holders whose Securities are purchased only in part will be issued new Securities equal in principal amount to the unpurchased portion of the Securities surrendered; and
(ix) the instructions that Holders must follow in order to tender their Securities. On or before the Net Proceeds Payment Date, the Company shall (i) accept for payment, on a PRO RATA basis among the Securities, Securities or portions thereof tendered pursuant to the Net Proceeds Offer, (ii) deposit with the Paying Agent money, in immediately available funds, in an amount sufficient to pay the purchase price of all Securities or portions thereof so tendered and accepted and (iii) deliver to the Paying Agent the Securities so accepted together with an Officers' Certificate setting forth the Securities or portions thereof tendered to and accepted for payment by the Company. The Paying Agent shall promptly mail or deliver to Holders of Securities so accepted payment in an amount equal to the purchase price, and the Trustee shall promptly authenticate and mail or deliver to such Holders a new Security equal in principal amount to any unpurchased portion of the Security surrendered. Any Securities 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 Net Proceeds Offer on the first Business Day following the Net Proceeds Payment Date. To the extent the Holders' PRO RATA portion of a Net Proceeds Offer is not fully subscribed to by such Holders, the Company may retain such unutilized portion of the Net Proceeds. The Paying Agent shall promptly deliver to the Company the balance of any moneys held by the Paying Agent after payment to the Holders of Securities as aforesaid. The Company shall comply, to the Securitiesextent applicable, with the particular Securities to be accepted shall be selected by such method as the Trustee shall deem fair and appropriate and which may provide for the selection requirements of portions Section 14(e) of the principal of Securities; provided, however, that no such partial acceptance shall reduce the portion of the principal amount of a Security not redeemed to less than, $1,000; Exchange Act and provided further that so long as the Securities are listed on any national other securities exchange laws or regulations (as such term is defined in including Rule 14e-1 under the Exchange Act), such selection shall be made by ) in connection with the Trustee in accordance 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 such exchange. SECTION 1018. [Intentionally Omittedthis 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 this Section 4.12 by virtue thereof.] SECTION 1019. [Intentionally Omitted.] SECTION 1020. [Intentionally Omitted.] SECTION 1021. [Intentionally Omitted.] SECTION 1022. [Intentionally Omitted.] SECTION 1023. [Intentionally Omitted.] SECTION 1024. [Intentionally Omitted.] SECTION 1025. [Intentionally Omitted.] SECTION 1026. [Intentionally Omitted.] SECTION 1027. [Intentionally Omitted.] ARTICLE ELEVEN
Appears in 1 contract
Limitation on Asset Sales. Subject to (a) The Company will not, and as permitted by the terms of this Indenture the Company shall will not permit any Restricted Subsidiary to, make any Asset Sale of its properties unless (ai) the Company or such Restricted Subsidiary, as the case may be, receives consideration received in at the Asset Sale is equal to Fair Market Value; (b) the proceeds therefrom consist of at least 85% cash and/or Cash Equivalents; and (c) unless otherwise expressly provided herein, the Net Cash Proceeds time of such Asset Sale shall be: at least equal to the fair market value (ias evidenced by a resolution of the Board of Directors set forth in an Officers Certificate delivered to the Trustee) applied of the assets or other property sold or disposed of in the manner described in the following paragraph; or Asset Sale, and (ii) retained at least 75% of such consideration is in the form of cash or Cash Equivalents; provided that for purposes of this covenant "cash" shall include the amount of any liabilities (other than liabilities that are by their terms subordinated to the Notes or any Subsidiary Guarantee) of the Company or such Restricted Subsidiary (as shown on the Company's or such Restricted Subsidiary's most recent balance sheet or in the notes thereto) that are assumed by the Company to apply transferee of any such assets 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 payment extent that such assumption is effected on its Securities when due. On or before the 180th day after the date on a basis under which there is no further recourse to the Company consummates the relevant or any of its Restricted Subsidiaries with respect to such liabilities.
(b) Within 360 days after any Asset Sale and subject to and as permitted by the terms of this IndentureSale, the Company shall use all of may elect to apply the Net Cash Proceeds from such Asset Sale to (other than amounts that i) permanently reduce any Senior Debt of the Company has determined to retain pursuant to clause Company, and/or (ii) make an investment in, or acquire assets directly related to, the television broadcasting business. Pending the final application of any such Net Proceeds, the Company may temporarily reduce Senior Bank Debt of the preceding paragraphCompany or temporarily invest such Net Proceeds in any manner permitted by this Indenture. Any Net Proceeds from an Asset Sale not applied or invested as provided in the first sentence of this paragraph within 360 days of such Asset Sale will be deemed to constitute "Excess Proceeds."
(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 $5,000,000, the Company shall, if and to make either (a) the extent permitted by the agreements governing any Senior Debt of the Company and the Existing Notes Indenture as in existence on the Issue Date, commence an offer to purchase the maximum principal amount of Notes and other Indebtedness of the Company that ranks pari passu in right of payment with the Notes (to the extent required by the instrument governing such other Indebtedness) that may be purchased out of the Excess Proceeds (an "Asset Sale Offer") from ); provided that prior to making any such Asset Sale Offer the Company may, to the extent required pursuant to the Existing Notes Indentures as in existence on the Issue Date, use all holders or a portion of Securities up such Excess Proceeds to a maximum redeem Existing Notes. Any Notes and other Indebtedness to be purchased pursuant to an Asset Sale Offer shall be purchased pro rata based on the aggregate principal amount (expressed as a multiple of $1,000) of Securities equal to Notes and such Net Cash Proceeds other Indebtedness outstanding and all Notes shall be purchased at a purchase an offer price in cash in an amount equal to 100% of the principal amount thereof thereof, plus accrued and unpaid interest thereonto the date of purchase. To the extent that any Excess Proceeds remain after comple- tion of an Asset Sale Offer, if anythe Company may use the remaining amount for general corporate purposes. In the event that the Company is prohibited under the terms of any agreement governing outstanding Senior Debt of the Company from repurchasing Notes with Excess Proceeds pursuant to an Asset Sale Offer as set forth in the first sentence of this Section 4.14(c), the Company shall promptly use all Excess Proceeds to permanently reduce such outstanding Senior Debt of the Company.
(d) Within 30 days following the occurrence of any Asset Sale Offer Trigger Date, the 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 or (b) a Permitted Investment; provided, that the Company shall not be required to make any "Asset Sale Offer if 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 Net Cash Proceeds date such notice is mailed, (ii) the amount of all accrued and unpaid interest as of the Asset Sales Sale Offer Purchase Date, (iii) that are any Note not used tendered will continue to make a Permitted Investment within 180 daysaccrue interest, do not exceed $5 million. Each (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 remain open for a period of at least 20 business days. If cease to accrue interest after the Asset Sale Offer is more 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 $1,000 or integral multiples thereof; (vi) that Holders will be entitled to withdraw their election to tender Notes if the Paying Agent receives, not later than fully subscribed to by the Holders 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 SecuritiesHolder, the particular Securities to be accepted shall be selected by such method as the Trustee shall deem fair and appropriate and which may provide for the selection of portions of the principal of Securities; provided, however, that no such partial acceptance shall reduce the portion of the principal amount of Notes delivered for purchase, and a Security not redeemed statement that such Holder is withdrawing his election to less than, $1,000have 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 further that so long as the Securities are listed on any national securities exchange (as such term is defined only Notes in the Exchange Act), such selection shall a principal amount of $1,000 or integral multiples thereof will be made by the Trustee accepted for payment in accordance with the provisions of such exchange. SECTION 1018. [Intentionally Omittedpart.] SECTION 1019. [Intentionally Omitted.] SECTION 1020. [Intentionally Omitted.] SECTION 1021. [Intentionally Omitted.] SECTION 1022. [Intentionally Omitted.] SECTION 1023. [Intentionally Omitted.] SECTION 1024. [Intentionally Omitted.] SECTION 1025. [Intentionally Omitted.] SECTION 1026. [Intentionally Omitted.] SECTION 1027. [Intentionally Omitted.] ARTICLE ELEVEN
Appears in 1 contract
Limitation on Asset Sales. Subject to (a) The Company will not, and as permitted by the terms of this Indenture the Company shall will not make permit any Restricted Subsidiary to, engage in any Asset Sale of its properties unless (ai) the consideration received by the Company or such Restricted Subsidiary in the respect of such Asset Sale (x) is equal to not less than the Fair Market ValueValue of the assets sold and (y) consists of at least 75% cash, Cash Equivalents and/or assets used or useful in or related to the Programming Business and (ii) immediately before and immediately after giving effect to such Asset Sale, no Default or Event of Default shall have occurred and be continuing; provided that, the following shall not constitute an Asset Sale: (A) the divestiture of the channel "Venus" to Playboy TV - Latin America LLC, and (B) the divestiture of Xxxxxxx.xxx and Playboy TV International, LLC to Playboy Enterprises, Inc. or any of its Affiliates.
(b) If the proceeds therefrom consist of at least 85% cash and/or Cash Equivalents; and (c) unless otherwise expressly provided hereinCompany or any Restricted Subsidiary engages in an Asset Sale, the Company may use the Net Cash Proceeds of thereof, within 12 months after such Asset Sale shall be: Sale, to (i) applied permanently repay or prepay any then-outstanding senior Indebtedness of the Company or senior Indebtedness of any Restricted Subsidiary (including, without limitation, the Notes), in each case, owing to a Person other than the manner described in the following paragraph; Company, any of its Subsidiaries or any of their respective Affiliates or (ii) retained by invest in properties and assets to replace the Company to apply properties and assets that were the subject of the Asset Sale or in properties and assets (other than current assets) that will be used in or be related to the payment on its Securities when dueProgramming Business. On or before The amount of such Net Cash Proceeds not so used as set forth in this clause (b) constitutes "Excess Proceeds."
(c) When the 180th day after aggregate amount of Excess Proceeds exceeds U.S.$5 million (or, to the date on which extent non-U.S. Dollar denominated, the Company consummates the relevant Asset Sale and subject to and as permitted by the terms U.S. Dollar Equivalent of this Indenturesuch amount), the Company shall use all of the Net Cash Proceeds from such Asset Sale (other than amounts that the Company has determined to retain pursuant to clause (ii) of the preceding paragraph) to shall, within 30 Business Days, make either (a) an offer to purchase (the an "Asset Sale Excess Proceeds Offer") from all holders of Securities up to Holders on a pro rata basis, in accordance with the procedures set forth in this Indenture, the maximum principal amount (expressed as a multiple of $1,000U.S.$1,000) of Securities equal Notes that may be purchased with the Excess Proceeds. The offer price as to such Net Cash Proceeds at a purchase price each Note shall be payable in cash in an amount equal to 100% of the principal amount thereof of such Note plus accrued and unpaid interest thereoninterest, if any, to the date of purchase or (b) a Permitted Investment; provided, such Excess Proceeds Offer is consummated. To the extent that the aggregate principal amount of Notes tendered pursuant to an Excess Proceeds Offer is less than the Excess Proceeds, the Company shall not be required to make any Asset Sale Offer if the Net Cash Proceeds of all Asset Sales that are not used to make a Permitted Investment within 180 days, do not exceed $5 million. Each Asset Sale Offer shall remain open may use such deficiency for a period of at least 20 business daysgeneral corporate purposes. If the Asset Sale Offer is more than fully subscribed to aggregate principal amount of Notes validly tendered and not withdrawn by Holders thereof exceeds the Holders of the SecuritiesExcess Proceeds, the particular Securities Notes to be accepted shall purchased will be selected by such method as the Trustee shall deem fair and appropriate and which may provide for the selection of portions of the principal of Securities; provided, however, that no such partial acceptance shall reduce the portion of on a pro rata basis (based upon the principal amount of a Security not redeemed to less thanNotes tendered by each Holder). Upon completion of such Exceeds Proceeds Offer, $1,000; and provided further that so long as the Securities are listed on any national securities exchange (as such term is defined in the Exchange Act), such selection amount of Excess Proceeds shall be made by the Trustee in accordance with the provisions of such exchange. SECTION 1018. [Intentionally Omittedreset to zero.] SECTION 1019. [Intentionally Omitted.] SECTION 1020. [Intentionally Omitted.] SECTION 1021. [Intentionally Omitted.] SECTION 1022. [Intentionally Omitted.] SECTION 1023. [Intentionally Omitted.] SECTION 1024. [Intentionally Omitted.] SECTION 1025. [Intentionally Omitted.] SECTION 1026. [Intentionally Omitted.] SECTION 1027. [Intentionally Omitted.] ARTICLE ELEVEN
Appears in 1 contract
Limitation on Asset Sales. Subject (a) The Company shall not, and shall not permit any of its Restricted Subsidiaries to, make an Asset Sale unless:
(1) the Company or such Restricted Subsidiary receives consideration at the time of the Asset Sale at least equal to and the Fair Market Value, of the shares, property or assets being disposed of in the Asset Sale; and
(2) at least 75% of the consideration received by the Company or such Restricted Subsidiary, as permitted the case may be, from the Asset Sale is in the form of cash or Cash Equivalents. Within one year from the receipt of Net Available Cash from an Asset Sale, the Company may, at its election or as required by the terms of this Indenture the Company shall not make any Asset Sale of its properties unless (a) the consideration received in the Asset Sale is equal Credit Facilities, use such Net Available Cash to Fair Market Value; (b) the proceeds therefrom consist of at least 85% cash and/or Cash Equivalents; and (c) unless otherwise expressly provided herein, the Net Cash Proceeds of such Asset Sale shall be: (i) applied acquire Additional Assets; (ii) make capital expenditures used or useful in a Related Business; and/or (iii) prepay, repay or purchase indebtedness under the manner described Credit Facilities; provided that if during such one-year period the Company or such Restricted Subsidiary enters into a definitive binding agreement committing it to apply such Net Available Cash in accordance with the following paragraph; requirements of the preceding clause (i) or (ii) retained by the Company to apply after such one year period, such one-year period shall be extended with respect to the payment on its Securities when dueamount of Net Available Cash so committed for a period not to exceed 180 days until such Net Available Cash are required to be applied in accordance with such agreement (or, if earlier, until termination of such agreement). On The amount of Net Available Cash not applied or before invested as provided in this paragraph shall constitute “Excess Proceeds.”
(b) When the 180th day after the date on which the Company consummates the relevant Asset Sale and subject to and as permitted by the terms aggregate amount of this IndentureExcess Proceeds exceeds $25.0 million, the Company Issuers shall use be required to make an offer to purchase from all Holders and, if applicable, redeem (or make an offer to do so) any Debt of the Net Cash Issuers or any Subsidiary Guarantor that ranks pari passu in right of payment with the Notes or the Guarantees (“Pari Passu Debt”) the provisions of which require the Issuers to redeem or purchase such Debt with the proceeds from any Asset Sales (or offer to do so), for a purchase price equal to the amount of such Excess Proceeds from such Asset Sale as follows:
(other than amounts that 1) the Company has determined to retain pursuant to clause (ii) of the preceding paragraph) to make either Issuers shall (a) make an offer to purchase (the "an “Asset Sale Offer"”) from to all holders Holders in accordance with the procedures set forth in this Section 4.11, and (b) redeem or purchase (or make an offer to do so) any such other Pari Passu Debt, pro rata in proportion to the respective principal amounts (or accreted value in the case of Securities up Debt issued at a discount) of the Notes and such other Pari Passu Debt required to a be redeemed or purchased, the maximum principal amount (expressed as a multiple of $1,000or accreted value) of Securities equal to Notes and Pari Passu Debt that may be redeemed out of the amount (the “Payment Amount”) of such Net Cash Proceeds at a purchase Excess Proceeds;
(2) the offer price for the Notes shall be payable in cash in an amount equal to 100% of the principal amount thereof of the Notes tendered pursuant to an Asset Sale Offer, plus accrued and unpaid interest and Special Interest thereon, if any, to the date of purchase or (b) a Permitted Investment; provided, that the Company shall not be required to make any Asset Sale Offer if the Net Cash Proceeds of all Asset Sales that are not used to make a Permitted Investment within 180 days, do not exceed $5 million. Each Asset Sale Offer shall remain open for a period of at least 20 business days. If the such Asset Sale Offer is more than fully subscribed to by consummated (the Holders of the Securities, the particular Securities to be accepted shall be selected by such method as the Trustee shall deem fair and appropriate and which may provide for the selection of portions of the principal of Securities; provided, however, that no such partial acceptance shall reduce the portion of the principal amount of a Security not redeemed to less than, $1,000; and provided further that so long as the Securities are listed on any national securities exchange (as such term is defined in the Exchange Act“Offered Amount”), such selection shall be made by the Trustee in accordance with the procedures set forth in this Indenture, and the redemption price for such Pari Passu Debt (the “Pari Passu Debt Amount”) shall be as set forth in the related documentation governing such Debt;
(3) if the aggregate Offered Amount of Notes validly tendered and not withdrawn by Holders thereof exceeds the pro rata portion of the Payment Amount allocable to the Notes, Notes to be purchased shall be selected on a pro rata basis; and
(4) upon completion of such Asset Sale Offer in accordance with the foregoing provisions, the amount of Excess Proceeds with respect to which such Asset Sale Offer was made shall be deemed to be zero. To the extent that the sum of the aggregate Offered Amount of Notes tendered pursuant to an Asset Sale Offer and the aggregate Pari Passu Debt Amount paid to the holders of such Pari Passu Debt is less than the Payment Amount relating thereto (such shortfall constituting a “Net Proceeds Deficiency”), the Company may use the Net Proceeds Deficiency, or a portion thereof, for general corporate purposes, subject to the provisions of such exchange. SECTION 1018. [Intentionally Omittedthis Indenture.] SECTION 1019. [Intentionally Omitted.] SECTION 1020. [Intentionally Omitted.] SECTION 1021. [Intentionally Omitted.] SECTION 1022. [Intentionally Omitted.] SECTION 1023. [Intentionally Omitted.] SECTION 1024. [Intentionally Omitted.] SECTION 1025. [Intentionally Omitted.] SECTION 1026. [Intentionally Omitted.] SECTION 1027. [Intentionally Omitted.] ARTICLE ELEVEN
(c) Solely for the purposes of Section 4.11(a)(2), the following shall be deemed to be cash:
Appears in 1 contract
Samples: Indenture (JBS USA Holdings, Inc.)
Limitation on Asset Sales. Subject Neither Holdings nor Issuer will sell all or any portion of the outstanding capital stock of any of its Subsidiaries, and neither Holdings nor Issuer will permit any of their respective Subsidiaries to and as permitted by the terms of this Indenture the Company shall not make participate or engage in any Asset Sale of its properties unless (a) the consideration received in the Asset Sale is equal to Fair Market Value; (b) the proceeds therefrom consist of at least 85% cash and/or Cash Equivalents; and (c) unless otherwise expressly provided herein, the Net Cash Proceeds of such Asset Sale shall be: are applied to repay Designated Senior Debt, except as expressly otherwise provided in the Credit Agreement. and (iii) Section 6.16 of the Agreement is hereby amended by deleting the phrase "If an Event of Default has occurred" and substituting therefor the phrase "At any time (i) applied in the manner described in the following paragraph; prior to March 31, 1997, or (ii) retained by the Company to apply on or after March 31, 1997, if an Event Default has occurred." 2 Coram, Inc. Coram Healthcare Corporation Page 2 October 13, 1995 We consent to the payment Fourth Amendment and Limited Waiver to the Credit Agreement and First Amendment to the Security Documents dated as of October 13, 1995. Issuer, by signing below, acknowledges and agrees that the Bona Fide Proposal Condition specified in Section 6.23 shall be deemed satisfied because no proposal of the type contemplated therein can be made on its Securities when dueterms and conditions more favorable to Issuer than those set forth in the Subordinated Rollover Notes. On or before Issuer further agrees that release of Warrants under the 180th day after the date Escrow Agreement shall commence on which the Company consummates the relevant Asset Sale and subject December 30, 1995 as per our letter to and you of August 11, 1995. Except as permitted by specified herein, the terms of this Indenture, the Company shall use all of the Net Cash Proceeds from such Asset Sale (other than amounts that the Company has determined to retain pursuant to clause (ii) of the preceding paragraph) to make either (a) an offer to purchase (the "Asset Sale Offer") from all holders of Securities up to a maximum principal amount (expressed as a multiple of $1,000) of Securities equal to such Net Cash Proceeds at a purchase price equal to 100% of the principal amount thereof plus accrued and unpaid interest thereon, if any, to the date of purchase or (b) a Permitted Investment; provided, that the Company shall not be required to make any Asset Sale Offer if the Net Cash Proceeds of all Asset Sales that are not used to make a Permitted Investment within 180 days, do not exceed $5 million. Each Asset Sale Offer Bridge Documents shall remain open for a period in full force and effect and are hereby confirmed. The terms of at least 20 business days. If the Asset Sale Offer is more than fully subscribed to by the Holders of the Securities, the particular Securities to be accepted this letter shall be selected governed by such method as the Trustee shall deem fair and appropriate and which may provide for the selection of portions of the principal of Securities; provided, however, that no such partial acceptance shall reduce the portion of the principal amount of a Security not redeemed to less than, $1,000; and provided further that so long as the Securities are listed on any national securities exchange (as such term is defined in the Exchange Act), such selection shall be made by the Trustee construed in accordance with the provisions laws of such exchangethe State of New York without giving effect to the choice of law principles thereof. SECTION 1018If the foregoing is acceptable to you, please so signify by signing below not later than October 13, 1995, whereupon this agreement shall become binding and effective. Sincerely, CORAM FUNDING, INC. By: [Intentionally Omitted.Illegible] SECTION 1019----------------------------- Title: Vice President Accepted and agreed this 13th day of October, 1995. CORAM, INC. By: [Intentionally Omitted.Illegible] SECTION 1020. ----------------------------- Title: CORAM HEALTHCARE CORPORATION By: [Intentionally Omitted.Illegible] SECTION 1021. [Intentionally Omitted.] SECTION 1022. [Intentionally Omitted.] SECTION 1023. [Intentionally Omitted.] SECTION 1024. [Intentionally Omitted.] SECTION 1025. [Intentionally Omitted.] SECTION 1026. [Intentionally Omitted.] SECTION 1027. [Intentionally Omitted.] ARTICLE ELEVEN----------------------------- Title:
Appears in 1 contract
Samples: Securities Purchase Agreement (Coram Healthcare Corp)
Limitation on Asset Sales. Subject to and as permitted by the terms of this Indenture the Company shall not make any Asset Sale of its properties unless (a) The Company may not, and may not permit any Restricted Subsidiary to, directly or indirectly, consummate an Asset Sale (including the sale of any of the Capital Stock of any Restricted Subsidiary) providing for Net Proceeds in excess of $2,500,000 unless at least (A) 50% of the consideration thereof received by the Company is in the Asset Sale is equal to Fair Market Value; (b) the proceeds therefrom consist form of at least 85% cash and/or Cash Equivalents; Equivalents and/or Marketable Securities and (cB) unless otherwise expressly provided herein, the Net Cash Proceeds of such Asset Sale shall be: (i) applied in the manner described in the following paragraph; or (ii) retained by the Company to apply to the payment on its Securities when due. On or before the 180th day after the date on which the Company consummates the relevant Asset Sale and subject to and as permitted by the terms of this Indenture, the Company shall use all 75% of the Net Cash Proceeds from such Asset Sale (other than amounts that are applied to one or more of the following in such combination as the Company has determined shall elect: (i) an investment in another asset or business in the same line of business as, or a line of business similar to retain pursuant to clause (ii) that of, the line of business of the preceding paragraph) Company and its Restricted Subsidiaries at that time; provided that such investment occurs on or prior to make either (a) an offer to purchase the 365th day following the date of such Asset Sale (the "Asset Sale OfferDisposition Date"), (ii) the purchase, redemption or other prepayment or repayment of outstanding senior Indebtedness on or prior to the Asset Sale Disposition Date or (iii) an Offer expiring on or prior to the Purchase Date.
(b) Any Net Proceeds from any Asset Sale that are not applied or invested as provided in Section 4 14(a)(i) or (a)(ii) shall constitute "Excess Proceeds."
(c) When the aggregate amount of Excess Proceeds exceeds $10,000,000 (such date being an "Asset Sale Trigger Date"), the Company shall make an Offer to all holders of Securities up Holders to a purchase the maximum principal amount (expressed as a multiple of $1,000) of Securities equal to such Net Cash Proceeds (the "Asset Sale Offer Amount") then outstanding that may be purchased out of Excess Proceeds, at a purchase an offer price in cash in an amount equal to 100% of the outstanding principal amount thereof plus any accrued and unpaid interest thereonto the Purchase Date.
(d) To the extent that any Excess Proceeds remain after completion of the Offer, if anythe Company may use such remaining amount for general corporate purposes.
(e) Upon completion of each such Offer, the amount of Excess Proceeds shall be reset to zero.
(f) Notwithstanding the foregoing, to the date extent that any or all of purchase the Net Proceeds of an Asset Sale is prohibited or (b) a Permitted Investment; provideddelayed by applicable local law from being repatriated to the United States, that the Company shall portion of such Net Proceeds so affected will not be required to make be applied pursuant to this Section 4.14, but may be retained for so long, but only for so long, as the applicable local law prohibits repatriation to the United States. The Company will promptly take all reasonable actions required by the applicable local law to permit such repatriation, and once such repatriation of any affected Net Proceeds is not prohibited under applicable local law, such repatriation will be immediately effected and such repatriated Net Proceeds will be applied in the manner set forth above as if such Asset Sale Offer if had occurred on the Net Cash Proceeds date of all Asset Sales that are not used to make a Permitted Investment within 180 days, do not exceed $5 million. Each Asset Sale Offer shall remain open for a period of at least 20 business days. If the Asset Sale Offer is more than fully subscribed to by the Holders of the Securities, the particular Securities to be accepted shall be selected by such method as the Trustee shall deem fair and appropriate and which may provide for the selection of portions of the principal of Securities; provided, however, that no such partial acceptance shall reduce the portion of the principal amount of a Security not redeemed to less than, $1,000; and provided further that so long as the Securities are listed on any national securities exchange (as such term is defined in the Exchange Act), such selection shall be made by the Trustee in accordance with the provisions of such exchange. SECTION 1018. [Intentionally Omittedrepatriation.] SECTION 1019. [Intentionally Omitted.] SECTION 1020. [Intentionally Omitted.] SECTION 1021. [Intentionally Omitted.] SECTION 1022. [Intentionally Omitted.] SECTION 1023. [Intentionally Omitted.] SECTION 1024. [Intentionally Omitted.] SECTION 1025. [Intentionally Omitted.] SECTION 1026. [Intentionally Omitted.] SECTION 1027. [Intentionally Omitted.] ARTICLE ELEVEN
Appears in 1 contract
Samples: Indenture (Jordan Industries Inc)
Limitation on Asset Sales. Subject to and as permitted by the terms of this Indenture the The Company shall not, and shall not permit any Restricted Subsidiary to, make any Asset Sale of its properties unless (ai) the Company or such Restricted Subsidiary receives consideration received in at the Asset Sale is equal to Fair Market Value; (b) the proceeds therefrom consist of at least 85% cash and/or Cash Equivalents; and (c) unless otherwise expressly provided herein, the Net Cash Proceeds time of such Asset Sale shall be: at least equal to the fair market value (ias determined in good faith by the Board of Directors as evidenced by a resolution of the Board of Directors set forth in an Officers' Certificate delivered to the Trustee) applied in of the manner described in the following paragraph; or assets subject to such Asset Sale, (ii) retained at least 75% of the consideration for such Asset Sale is in the form of cash, Cash Equivalents or liabilities of the Company or any Restricted Subsidiary (other than liabilities that are by their terms subordinated to the Notes or any Guarantee) that are assumed by the Company to apply transferee of such assets (provided, that there is no further recourse to the payment on Company and its Securities when due. On or before Restricted Subsidiaries with respect to such The amount of Net Proceeds not invested as set forth in the 180th day after the date on which preceding clause (a) constitutes "Excess Proceeds." If the Company consummates the relevant Asset Sale and subject elects, or becomes obligated to and as permitted by the terms of this Indenturemake an Excess Proceeds Offer, the Company shall use all of the Net Cash Proceeds from such Asset Sale (other than amounts that the Company has determined to retain pursuant to clause (ii) of the preceding paragraph) to make either (a) an offer to purchase Notes having an aggregate principal amount equal to the Excess Proceeds (the "Asset Sale OfferPurchase Amount") from all holders of Securities up to a maximum principal amount (expressed as a multiple of $1,000) of Securities equal to such Net Cash Proceeds ), at a purchase price equal to 100% of the aggregate principal amount thereof thereof, plus accrued and unpaid interest thereoninterest, if any, to the date purchase date. The Company must commence such Excess Proceeds Offer not later than 30 days after the expiration of the 12-month period following the Asset Sale that produced Excess Proceeds. If the aggregate purchase or (b) a Permitted Investment; providedprice for the Notes tendered pursuant to the Excess Proceeds Offer is less than the Excess Proceeds, that the Company shall not be required to make any Asset Sale Offer if and its Restricted Subsidiaries may use the Net Cash portion of the Excess Proceeds remaining after payment of all Asset Sales that are not used to make a Permitted Investment within 180 days, do not exceed $5 millionsuch purchase price for general corporate purposes. Each Asset Sale Excess Proceeds Offer shall remain open for a period of at least 20 business daysBusiness Days and no longer, unless a longer period is required by law (the "Excess Proceeds Offer Period"). If Promptly after the Asset Sale Offer is more than fully subscribed to by the Holders termination of the SecuritiesExcess Proceeds Offer Period (the "Excess Proceeds Payment Date"), the particular Securities Company shall purchase and mail or deliver payment for the Purchase Amount for the Notes or portions thereof tendered, pro rata or by such other method as may be required by law, or, if less than the Purchase Amount has been tendered, all Notes tendered pursuant to the Excess Proceeds Offer. The principal amount of Notes to be accepted shall purchased pursuant to an Excess Proceeds Offer may be selected reduced by such method as the Trustee shall deem fair and appropriate and which may provide for the selection of portions of the principal of Securities; provided, however, that no such partial acceptance shall reduce the portion of the principal amount of Notes acquired by the Company through purchase or redemption (other than pursuant to a Security not redeemed Change of Control Offer) subsequent to less than, $1,000; the date of the Asset Sale and provided further that so long as surrendered to the Securities are listed on any national securities exchange (as such term is defined in the Exchange Act), such selection Trustee for cancellation. Each Excess Proceeds Offer shall be made by conducted in compliance with all applicable laws, including without limitation, Regulation 14E of the Trustee in accordance with the provisions of such exchange. SECTION 1018. [Intentionally Omitted.] SECTION 1019. [Intentionally Omitted.] SECTION 1020. [Intentionally Omitted.] SECTION 1021. [Intentionally Omitted.] SECTION 1022. [Intentionally Omitted.] SECTION 1023. [Intentionally Omitted.] SECTION 1024. [Intentionally Omitted.] SECTION 1025. [Intentionally Omitted.] SECTION 1026. [Intentionally Omitted.] SECTION 1027. [Intentionally Omitted.] ARTICLE ELEVENExchange
Appears in 1 contract
Limitation on Asset Sales. Subject to and as permitted by the terms of this Indenture the The Company shall not, and shall not permit any Restricted Subsidiary to, make any Asset Sale of its properties unless unless
(ai) the Company or such Restricted Subsidiary receives consideration received in at the Asset Sale is equal to Fair Market Value; (b) the proceeds therefrom consist of at least 85% cash and/or Cash Equivalents; and (c) unless otherwise expressly provided herein, the Net Cash Proceeds time of such Asset Sale shall be: not less than the fair market value of the assets subject to such Asset Sale;
(ii) at least 75% of the consideration for such Asset Sale is in the form of cash or Cash Equivalents or liabilities of the Company or any Restricted Subsidiary (other than liabilities that are by their terms subordinated to the Notes) that are assumed by the transferee of such assets (provided, that following such Asset Sale there is no further recourse to the Company or its Restricted Subsidiaries with respect to such liabilities); and
(iii) within 270 days of such Asset Sale, the Net Proceeds thereof are (A) invested in assets related to the business of the Company or its Re stricted Subsidiaries (which, in the case of an Asset Sale of the Majestic Star Casino Vessel or any replacement Gaming Vessel (a "Replacement Vessel"), must be a Gaming Vessel having a fair market value, as determined by an independent appraisal, at least equal to the fair market value of the Majestic Star Casino Vessel or such Replacement Vessel immediately preceding such Asset Sale), (B) applied to repay Indebtedness under Purchase Money Obligations incurred in connection with the asset so sold, (C) applied to repay Indebtedness under the Credit Facility and permanently reduce the commitment thereunder in the amount of the Indebtedness so repaid or (D) to the extent not used as provided in clauses (A), (B), or (C) applied to make an offer to purchase Notes as described below (an "Excess Proceeds Offer"); provided, that the Company will not be required to make an Excess Proceeds Offer until the amount of Excess Proceeds is greater than $5,000,000. The foregoing provisions in (i) applied in the manner described in the following paragraph; or (ii) retained by the Company to above shall not apply to an Event of Loss. Pending the payment on its Securities when due. On or before the 180th day after the date on which the Company consummates the relevant Asset Sale and subject to and as permitted by the terms final application of this Indentureany Net Proceeds, the Company shall use all of may temporarily reduce Indebtedness under the Credit Facility or temporarily invest such Net Proceeds in Cash Equivalents. Net Proceeds from such Asset Sale not invested or applied as set forth in the preceding clauses (other than amounts that A), (B) or (C) constitute "Excess Proceeds." If the Company has determined to retain pursuant to clause (ii) of the preceding paragraph) elects, or becomes obligated to make either (a) an Excess Proceeds Offer, the Issuers shall offer to purchase Notes having an aggregate principal amount equal to the Excess Proceeds (the "Asset Sale OfferPurchase Amount") from all holders of Securities up to a maximum principal amount (expressed as a multiple of $1,000) of Securities equal to such Net Cash Proceeds ), at a purchase price equal to 100% of the aggregate principal amount thereof thereof, plus accrued and unpaid interest thereonthereon and Liquidated Damages, if any, to the date purchase date. The Issuers must commence such Excess Proceeds Offer not later than 30 days after the expiration of the 270 day period following the Asset Sale that produced such Excess Proceeds. If the aggregate purchase or (b) a Permitted Investment; providedprice for the Notes tendered pursuant to the Excess Proceeds Offer is less than the Excess Proceeds, that the Company shall not be required to make any Asset Sale Offer if and its Restricted Subsidiaries may use the Net Cash portion of the Excess Proceeds remaining after payment of all Asset Sales that are not used to make a Permitted Investment within 180 days, do not exceed $5 millionsuch purchase price for general corporate purposes. Each Asset Sale Excess Proceeds Offer shall remain open for a period of at least 20 business daysBusiness Days and no longer, unless a longer period is required by law (the "Excess Proceeds Offer Period"). If Promptly after the Asset Sale Offer is more than fully subscribed to by the Holders termination of the SecuritiesExcess ---------------------------- Proceeds Offer Period (the "Excess Proceeds Payment Date"), the particular Securities Issuers shall ---------------------------- purchase and mail or deliver payment for the Purchase Amount for the Notes or portions thereof tendered, pro rata or by such other method as may be required by law, -------- or, if less than the Purchase Amount has been tendered, all Notes tendered pursuant to the Excess Proceeds Offer. The principal amount of Notes to be accepted shall purchased pursuant to an Excess Proceeds Offer may be selected reduced by such method as the Trustee shall deem fair and appropriate and which may provide for the selection of portions of the principal of Securities; provided, however, that no such partial acceptance shall reduce the portion of the principal amount of Notes acquired by the Issuers through purchase or redemption (other than pursuant to a Security not redeemed Change of Control Offer) subsequent to less thanthe date of the Asset Sale and surrendered to the Trustee for cancellation. Each Excess Proceeds Offer shall be conducted in compliance with all applicable laws, $1,000; and provided further that so long as the Securities are listed on any national securities exchange (as such term is defined in including without limitation, Regulation 14E of the Exchange Act), such selection shall be made by Act and the Trustee in accordance rules thereunder and all other applicable Federal and state securities laws. To the extent that the provisions of any securities laws or regulations conflict with the provisions of this Section 4.10, the Issuers shall comply with the applicable securities laws and regulations and shall not be deemed to have breached its obligations under this Section 4.10 by virtue thereof. The Company shall not, and shall not permit any of its Subsidiaries to, create or suffer to exist or become effective any restriction that would impair the ability of the Issuers to make an Excess Proceeds Offer upon an Asset Sale or, if such exchangeExcess Proceeds Offer is made, to pay for the Notes tendered for purchase. SECTION 1018The Issuers shall, no later than 30 days following the expiration of the 12-month period following the Asset Sale that produced Excess Proceeds, commence the Excess Proceeds Offer by mailing to the Trustee and each Holder, at such Holder's last registered address, a notice, which shall govern the terms of the Excess Proceeds Offer, and shall state:
(2) the purchase price and the date of purchase;
(3) that any Notes not tendered or accepted for payment pursuant to the Excess Proceeds Offer shall continue to accrue interest;
(4) that, unless the Issuers default in the payment of the purchase price with respect to any Notes tendered, Notes accepted for payment pursuant to the Excess Proceeds Offer shall cease to accrue interest after the Excess Proceeds Payment Date;
(5) that Holders electing to have Notes purchased pursuant to an Excess Proceeds Offer shall be required to surrender their Notes, with the form entitled "Option of Holder to Elect Purchase" on the reverse of the Note completed, to the Issuers prior to the close of business on the third Business Day immediately preceding the Excess Proceeds Payment Date;
(6) that Holders shall be entitled to withdraw their election if the Issuers receive, not later than the close of business on the second Business Day preceding the Excess Proceeds Payment Date, a telegram, telex, facsimile transmission or letter setting forth the name of the Holder, the principal amount of Notes the Holder delivered for purchase and a statement that such Holder is withdrawing his election to have such Notes purchased;
(7) that Holders whose Notes are purchased only in part shall be issued Notes representing the unpurchased portion of the Notes surrendered; provided that each Note purchased and each new Note issued shall be in -------- principal amount of $1,000 or whole multiples thereof; and
(8) the instructions that Holders must follow in order to tender their Notes. [Intentionally OmittedOn or before the Excess Proceeds Payment Date, the Issuers shall (i) accept for payment on a pro rata basis the Notes or portions thereof tendered --- ---- pursuant to the Excess Proceeds Offer, (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 the Notes so accepted, together with an Officers' Certificate stating that the Notes or portions thereof tendered to the Issuers are accepted for payment. The Paying Agent shall promptly mail to each Holder of Notes so accepted payment in an amount equal to the purchase price of such Notes, and the Trustee shall promptly authenticate and mail to such Holders new Notes equal in principal amount to any unpurchased portion of the Notes surrendered. The Issuers shall make a public announcement of the results of the Excess Proceeds Offer as soon as practicable after the Excess Proceeds Payment Date. For the purposes of this Section 4.10, the Trustee shall act as the Paying Agent.] SECTION 1019. [Intentionally Omitted.] SECTION 1020. [Intentionally Omitted.] SECTION 1021. [Intentionally Omitted.] SECTION 1022. [Intentionally Omitted.] SECTION 1023. [Intentionally Omitted.] SECTION 1024. [Intentionally Omitted.] SECTION 1025. [Intentionally Omitted.] SECTION 1026. [Intentionally Omitted.] SECTION 1027. [Intentionally Omitted.] ARTICLE ELEVEN
Appears in 1 contract
Samples: Indenture (Majestic Star Casino LLC)
Limitation on Asset Sales. Subject to and as permitted by the terms of this Indenture the Company shall not make any Asset Sale of its properties unless (a) the consideration received in the The Company will not, and will not permit any of its Restricted Subsidiaries to, consummate an Asset Sale is equal to Fair Market Value; unless (bi) the proceeds therefrom consist of at least 85% cash and/or Cash Equivalents; Company or the applicable Restricted Subsidiary, as the 80 - 72 - Proceeds relating to such Asset Sale as set forth in clauses (iii)(A), (iii)(B) and (ciii)(C) unless otherwise expressly provided hereinof the next preceding sentence (each, the 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 such Asset Sale the next preceding sentence (each a "Net Proceeds Offer Amount") shall be: (i) be applied in the manner described in the following paragraph; or (ii) retained by the Company to apply to the payment on its Securities when due. On or before the 180th day after the date on which the Company consummates the relevant Asset Sale and subject to and as permitted by the terms of this Indenture, the Company shall use all of the Net Cash Proceeds from such Asset Sale (other than amounts that the Company has determined to retain pursuant to clause (ii) of the preceding paragraph) Restricted Subsidiary to make either (a) an offer to purchase (the "Asset Sale 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 Holders on a pro rata basis, that amount of Securities up to a maximum principal amount (expressed as a multiple of $1,000) of Securities Notes equal to such the Net Cash Proceeds Offer Amount at a purchase price equal to 100% of the principal amount thereof of the Notes to be purchased, plus accrued and unpaid interest thereon, if any, to the date of purchase or (b) a Permitted Investmentpurchase; provided, however, that if at any time any non-cash consideration received by the Company shall not be required to make or any Restricted Subsidiary of the Company, as the case may be, in connection with any Asset Sale Offer if 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 4.16. The Company may defer the Net Proceeds Offer until there is an aggregate unutilized Net Proceeds Offer Amount equal to or in excess of all $10.0 million resulting from one or more Asset Sales that are (at which time, the entire unutilized Net Proceeds Offer Amount, and not used just the amount in excess of $10.0 million, shall be applied as required pursuant to make this paragraph). 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 Permitted Investment within 180 daysPerson in a transaction permitted under Section 5.01, do the successor corporation shall be deemed to have sold the properties and assets of the Company and its Restricted Subsidiaries not exceed $5 millionso 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 were an Asset Sale. Each 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.
(b) Notwithstanding the two immediately preceding paragraphs, the Company and its Restricted Subsidiaries will be permitted to consummate an Asset Sale without complying with such paragraphs to the extent (a) the consideration for such 82 - 74 - Asset Sale constitutes Replacement Assets and (b) such Asset Sale is for fair market value.
(c) Each notice of a Net Proceeds Offer pursuant to this Section 4.16 shall be mailed or caused to be mailed, by first class mail, by the Company not more than 25 days after the Net Proceeds Offer Trigger 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 Notes pursuant to the Net Proceeds Offer and shall state the following terms:
(i) that the Net Proceeds Offer is being made pursuant to this Section 4.16, that all Notes tendered will be accepted for payment; provided, however, that if the aggregate principal amount of Notes tendered in a Net Proceeds Offer plus accrued interest at the expiration of such offer exceeds the aggregate amount of the Net Proceeds Offer, the Company shall select the Notes to be purchased on a pro rata basis (with such adjustments as may be deemed appropriate by the Company so that only Notes in denominations of $1,000 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;
(ii) the purchase price (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 20 business days. If three Business Days after the Asset Sale Offer is more than fully subscribed Trustee receives notice thereof from the Company unless a shorter period shall be agreed to by the Trustee);
(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 Net Proceeds Offer shall cease to accrue interest after the Net Proceeds Offer Payment Date;
(v) that Holders electing to have a Note purchased pursuant to a Net Proceeds Offer will be required to surrender the Note, with the form entitled "Option of Holder to Elect Purchase" on the reverse of the SecuritiesNote completed, to the Paying Agent at the address specified in the notice 83 - 75 - prior to the close of business on the third Business Day prior to the Net Proceeds Offer Payment Date;
(vi) that Holders will be entitled to withdraw their election if the Paying Agent receives, not later than the second Business Day prior to the Net Proceeds Offer Payment Date, a telegram, telex, facsimile transmission or letter setting forth the name of the Holder, the particular Securities to be accepted shall be selected by such method as the Trustee shall deem fair and appropriate and which may provide for the selection of portions principal amount of the Notes the Holder delivered for purchase and a statement that such Holder is withdrawing its election to have such Note purchased; and
(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 Securitiesthe Notes surrendered; provided, however, that no 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 (i) accept for payment Notes or portions thereof tendered pursuant to the Net Proceeds Offer which are to be purchased in accordance with item (b)(i) above, (ii) deposit with the Paying Agent in accordance with Section 2.14 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 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. The Trustee shall promptly authenticate and mail to such partial acceptance shall reduce the Holders new Notes equal in principal amount to any unpurchased portion of the principal amount Notes surrendered. Upon the payment of the purchase price for the Notes accepted for purchase, the Trustee shall either cancel the Notes or return the Notes purchased to the Company for cancellation. Any monies remaining after the purchase of Notes pursuant to a Security not redeemed to less than, $1,000; and provided further that so long as the Securities are listed on any national securities exchange (as such term is defined in the Exchange Act), such selection Net Proceeds Offer shall be made 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 4.16, the Trustee shall act as the Paying Agent. quired to fund the repurchase of tendered Notes for general corporate purposes and such Net Proceeds Offer Amount shall be reset to zero.
(d) The Company will comply with the requirements of Rule 14e-1 under the Exchange Act and any other securities laws and regulations thereunder to the extent such laws and regulations are applicable in accordance 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 such exchange. SECTION 1018. [Intentionally Omittedthis Section 4.16, 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 4.16 by virtue thereof.] SECTION 1019. [Intentionally Omitted.] SECTION 1020. [Intentionally Omitted.] SECTION 1021. [Intentionally Omitted.] SECTION 1022. [Intentionally Omitted.] SECTION 1023. [Intentionally Omitted.] SECTION 1024. [Intentionally Omitted.] SECTION 1025. [Intentionally Omitted.] SECTION 1026. [Intentionally Omitted.] SECTION 1027. [Intentionally Omitted.] ARTICLE ELEVEN
Appears in 1 contract
Samples: Indenture (Kci New Technologies Inc)
Limitation on Asset Sales. Subject 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 such Asset Sale at least equal to and as permitted the Fair Market Value of the assets sold or otherwise disposed;
(2) at least 75% of the consideration received by the Company or the 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; provided that the amount of any liabilities (as shown on the most recent applicable balance sheet) of the Company or such Restricted Subsidiary (other than liabilities that are by their terms subordinated to the Notes) that are assumed by the transferee of any such assets shall be deemed to be cash for purposes of this Indenture provision so long as the documents governing such liabilities provide that there is no further recourse to the Company or any of its Subsidiaries with respect to such liabilities; and
(3) the Company shall not make any Asset Sale of its properties unless (a) the consideration received in the Asset Sale is equal apply, or cause such Restricted Subsidiary to Fair Market Value; (b) the proceeds therefrom consist of at least 85% cash and/or Cash Equivalents; and (c) unless otherwise expressly provided hereinapply, the Net Cash Proceeds relating to such Asset Sale within 360 days of receipt thereof either:
(a) to the extent that the assets and property sold pursuant to such Asset Sale do not constitute Priority Collateral, to repay Indebtedness under the Credit Agreement and permanently reduce the commitments thereunder;
(b) to make (or enter into a definitive agreement committing to do so not later than 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 shall be: (iincluding the repayment of indebtedness incurred in advance to replace such properties or assets) applied 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 manner described acquisition of all of the Capital Stock of a Person engaged in the following paragrapha Permitted Business; or (ii) retained by the Company to apply to the payment on its Securities when due. On or before the 180th day after the date on which the Company consummates the relevant Asset Sale and subject to and provided that such definitive agreement will be treated as a permitted by the terms of this Indenture, the Company shall use all application of the Net Cash Proceeds from the date of such Asset Sale agreement until and only until the earlier of (other than amounts that x) the date on which such investment or acquisition, as applicable, is consummated and (y) the 180th day following the expiration of the aforementioned 360-day period. If the investment or acquisition, as applicable, contemplated by such definitive agreement is not consummated on or before such 180th day and the Company has determined to retain or such Restricted Subsidiary will not have applied such Net Cash Proceeds pursuant to clause (iia) of this paragraph on or before such 180th day, such definitive agreement will be deemed not to have been a permitted application of Net Cash Proceeds; or
(c) to the extent that the assets and property sold pursuant to such Asset Sale do not constitute Priority Collateral, 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 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 paragraphparagraph (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 either (a) an offer to purchase (the "Asset Sale “Net Proceeds Offer"”) on a date (the “Net Proceeds Offer Payment Date”) not less than 30 nor more than 60 days following the applicable Net Proceeds Offer Trigger Date, from all Holders and all holders of Securities up other Applicable Indebtedness (other and Indebtedness under the Credit Agreement) containing provisions similar to those set forth in this Section 4.10 on a pro rata basis, the maximum principal amount (expressed as a multiple of $1,000) of Securities equal to Notes and such other Applicable Indebtedness that may be purchased with the Net Cash Proceeds Offer Amount at a purchase price equal to 100% of the 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 purchase. 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 (bat 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. In the event of the transfer of substantially all (but not all) a Permitted Investment; provided, that 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 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 required sold shall be deemed to make any Asset Sale Offer if the be Net Cash Proceeds for purposes of all Asset Sales that are not used to make a Permitted Investment within 180 days, do not exceed $5 millionthis Section 4.10. Each Asset Sale 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 this Indenture. Upon receiving notice of the Net Proceeds Offer, Holders may elect to tender their Notes in whole or in part in integral multiples of $1,000 in exchange for cash. To the extent Holders properly tender Notes in an amount exceeding the Net Proceeds Offer Amount, Notes of tendering Holders will be purchased on a pro rata basis (based on amounts tendered). A Net Proceeds Offer shall remain open for a period of at least 20 business daysBusiness Days or such longer period as may be required by law. If The Company will comply with the Asset Sale Offer is more than fully subscribed to by the Holders requirements of the Securities, the particular Securities to be accepted shall be selected by such method as the Trustee shall deem fair and appropriate and which may provide for the selection of portions of the principal of Securities; provided, however, that no such partial acceptance shall reduce the portion of the principal amount of a Security not redeemed to less than, $1,000; and provided further that so long as the Securities are listed on any national securities exchange (as such term is defined in Rule 14e-1 under the Exchange Act), Act and any other securities laws and regulations thereunder to the extent such selection shall be made by laws and regulations are applicable in connection with the Trustee in accordance with 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 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 such exchange. SECTION 1018. [Intentionally Omittedcompliance.] SECTION 1019. [Intentionally Omitted.] SECTION 1020. [Intentionally Omitted.] SECTION 1021. [Intentionally Omitted.] SECTION 1022. [Intentionally Omitted.] SECTION 1023. [Intentionally Omitted.] SECTION 1024. [Intentionally Omitted.] SECTION 1025. [Intentionally Omitted.] SECTION 1026. [Intentionally Omitted.] SECTION 1027. [Intentionally Omitted.] ARTICLE ELEVEN
Appears in 1 contract
Samples: Indenture (CitiSteel PA, Inc.)
Limitation on Asset Sales. Subject Pending the final application of any such Net Proceeds, the Company may temporarily reduce the revolving Indebtedness included among the Senior Facility Obligations or otherwise invest such Net Proceeds in any manner that is not prohibited by this Indenture. Any Net Proceeds from Asset Sales that are not applied or invested as provided in the first sentence of this paragraph will be deemed to and as permitted by constitute “Excess Proceeds.” On any date that the aggregate amount of Excess Proceeds under this Indenture exceeds $1 million (an “Asset Sale Offer Trigger Date”), the Company will be required to make an offer to all Holders of Notes issued under this Indenture (an “Asset Sale Offer”) to purchase the maximum principal amount of Notes and, if the Company is required to do so under the terms of this Indenture any other Indebtedness ranking pari passu and equally and ratably secured with such Notes (“Other Indebtedness”), such Other Indebtedness on a pro rata basis with the Company shall not make any Asset Sale of its properties unless (a) the consideration received in the Asset Sale is equal to Fair Market Value; (b) the proceeds therefrom consist of at least 85% cash and/or Cash Equivalents; and (c) unless otherwise expressly provided herein, the Net Cash Proceeds of such Asset Sale shall be: (i) applied in the manner described in the following paragraph; or (ii) retained by the Company to apply to the payment on its Securities when due. On or before the 180th day after the date on which the Company consummates the relevant Asset Sale and subject to and as permitted by the terms of this Indenture, the Company shall use all Notes that may be purchased out of the Net Cash Proceeds from such Asset Sale (other than amounts that the Company has determined to retain pursuant to clause (ii) of the preceding paragraph) to make either (a) an offer to purchase (the "Asset Sale Offer") from all holders of Securities up to a maximum principal amount (expressed as a multiple of $1,000) of Securities equal to such Net Cash Proceeds Excess Proceeds, at a purchase price in cash in an amount equal to 100% of the principal amount thereof plus accrued and unpaid interest thereoninterest, if any, thereon, to the date of purchase or (b) a Permitted Investment; provided, in accordance with the procedures set out in this Indenture. To the extent that the aggregate amount of Notes (and any Other Indebtedness subject to such Asset Sale Offer) tender pursuant to such Asset Sale Offer is less than the Excess Proceeds, the Company shall may, subject to the other terms of this Indenture, use any remaining Excess Proceeds for any purpose not be required to make prohibited by this Indenture. If the aggregate principal amount of Notes surrendered by Holders thereof in connection with any Asset Sale Offer if exceeds the Net Cash Proceeds amount of all Asset Sales that are not used to make a Permitted Investment within 180 daysExcess Proceeds, do not exceed $5 million. Each Asset Sale Offer shall remain open for a period of at least 20 business days. If the Asset Sale Offer is more than fully subscribed to by the Holders of the Securities, the particular Securities to be accepted shall be selected by such method as the Trustee shall deem fair and appropriate and which may provide for select Notes to be purchased on a pro rata basis; provided that no Note shall be repurchased in part if the selection of portions remaining balance thereof would be less than $1,000. Upon completion of the principal offer to purchase made under this Indenture, the amount of Securities; provided, however, Excess Proceeds that no was the subject of such partial acceptance offer to purchase shall reduce the portion be reset at zero.
2.25 Section 4.13(iii)(c) of the principal amount of a Security not redeemed to less than, $1,000; Indenture (“Dividend Limitations and provided further that so long Other Payment Restrictions Affecting Restricted Subsidiaries”) is hereby and restated in its entirety as the Securities are listed on any national securities exchange (as such term is defined in the Exchange Act), such selection shall be made by the Trustee in accordance with the provisions of such exchange. SECTION 1018. [Intentionally Omitted.] SECTION 1019. [Intentionally Omitted.] SECTION 1020. [Intentionally Omitted.] SECTION 1021. [Intentionally Omitted.] SECTION 1022. [Intentionally Omitted.] SECTION 1023. [Intentionally Omitted.] SECTION 1024. [Intentionally Omitted.] SECTION 1025. [Intentionally Omitted.] SECTION 1026. [Intentionally Omitted.] SECTION 1027. [Intentionally Omitted.] ARTICLE ELEVENfollows:
Appears in 1 contract
Samples: Second Supplemental Indenture (Velocity Express Corp)
Limitation on Asset Sales. Subject to and as permitted by the terms of this Indenture (a) Neither the Company nor any Restricted Subsidiary shall not make consummate any Asset Sale of its properties (other than an Asset Sale in connection with a sale - leaseback transaction complying with Section 3.10) unless (ai) the Company or such Restricted Subsidiary receives consideration received in at the Asset Sale is equal to Fair Market Value; (b) the proceeds therefrom consist of at least 85% cash and/or Cash Equivalents; and (c) unless otherwise expressly provided herein, the Net Cash Proceeds time of such Asset Sale shall be: having a value (iincluding the value of any noncash consideration, as determined in good faith by the Board of Directors) applied at least equal to the fair market value (as determined in good faith by the manner described in Board of Directors) of the following paragraph; shares or assets subject to such Asset Sale, (ii) retained by at least 80% of such consideration is in the form of cash (including, for purposes of this clause (ii), (A) the principal amount of any Indebtedness (as reflected on the Company's consolidated balance sheet) of the Company to apply to the payment on its Securities when due. On or before the 180th day after the date on any Restricted Subsidiary for which the Company consummates the relevant and its Restricted Subsidiaries will cease to be liable, directly or indirectly, as a result of such Asset Sale Sale; and subject to (B) securities that are promptly converted into cash) and as permitted by the terms of this Indenture, the Company shall use all (iii) 100% of the Net Cash Proceeds from with respect to such Asset Sale are applied by the Company or such Restricted Subsidiary as set forth in the succeeding paragraph. Notwithstanding the foregoing, any Asset Sale constituting the sale of all or any portion of the retail business of the Company and its Restricted Subsidiaries existing as of the date hereof that are not located in Puerto Rico or Florida (including the sale of individual stores) need not comply with clause (a)(ii) of the preceding sentence. In the event and to the extent that the Net Cash Proceeds received by the Company or any Restricted Subsidiary from one or more Asset Sales in any period of 12 consecutive months (other than amounts Asset Sales by the Company or another Restricted Subsidiary to the Company or another Restricted Subsidiary) exceed 15% of Consolidated Net Tangible Assets in any one fiscal year (determined as of the date closest to the commencement of such 12 - month period for which a balance sheet of the Company and its Subsidiaries has been prepared), then within 12 months following the date of such event, the Company or such Restricted Subsidiary shall apply such excess Net Cash Proceeds (A) first, to the extent the Company or such Subsidiary elects, to invest (or to enter into a definitive agreement committing so to invest within 12 months after the date of such agreement) in property or assets that (as determined in good faith by the Board of Directors) are of a nature or type or are used in a business (or in a company having property and assets of a nature or type, or engaged in a business) similar or related to the nature or type of the property and assets of, or to the business of, the Company and its Restricted Subsidiaries existing on the date of such Asset Sale; (B) second, to the extent of the balance of such excess Net Cash Proceeds after application in accordance with clause (A) and to the extent the Company or such Restricted Subsidiary elects, to prepay, repay or purchase Securities or Indebtedness of any Restricted Subsidiary; provided that the Company has determined or such Restricted Subsidiary shall repay such Indebtedness and cause the related loan commitment to retain be permanently reduced in an amount equal to the principal amount so prepaid, repaid or purchased and (C) third, to the extent of the balance of such excess Net Cash Proceeds after application in accordance with clauses (A) and (B), to make an offer to purchase Securities as set forth below. The amount of such excess Net Cash Proceeds required to be applied (or committed to be applied) during such 12 - month period as set forth in clause (A) or (B) of the preceding sentence and not applied as so required by the end of such period shall constitute "Excess Proceeds". To the extent the property that is the subject of an Asset Sale consists of Collateral, the Company shall cause the Net Cash Proceeds thereof to be deposited with the Banks (or an agent or representative on their behalf) or, in the event that the Bank Credit Agreement shall have been paid in full (and no commitments thereunder shall be outstanding), with the Trustee in the Collateral Account, and shall maintain such deposit with the Banks (or such agent or representative), or with the Trustee in the Collateral Account, until such time as such Net Cash Proceeds shall be applied as provided above and, in that connection, the Trustee agrees to release any such Net Cash Proceeds (and, to the extent required, to authorize the Banks, or any such agent or representative, to release such Net Cash Proceeds) to the Company upon delivery of an Officers' Certificate to the Trustee stating that the Net Cash Proceeds to be released will be applied as provided above; provided that if any Net Cash Proceeds are reinvested in property or assets pursuant to clause (iiA) of the preceding paragraph, the Company shall ensure that any Capital Stock that is owned by the Company (whether previously owned by it or acquired by it as a result of such reinvestment) is pledged to the Trustee as Collateral under the Security Pledge and Intercreditor Agreement and the Company shall execute such appropriate documentation as shall be necessary to effect such pledge.
(b) If, as of the first day of any calendar month, the aggregate amount of Excess Proceeds not theretofore subject to an Excess Proceeds Offer (as defined below) totals at least $10 million, the Company must, not later than the fifteenth Business Day of such month, make either (a) an offer to purchase (the an "Asset Sale Excess Proceeds Offer") to purchase from all holders of Securities up to the Holders on a maximum pro rata basis an aggregate principal amount (expressed as a multiple of $1,000) of Securities equal to the Excess Proceeds on such Net Cash Proceeds date (rounded down to the nearest $500), at a purchase price equal to 100101% of the principal amount thereof plus of such Securities, plus, in each case, accrued and unpaid interest thereon, (if any, ) to the date of purchase or (bthe "Excess Proceeds Payment").
(c) The Company shall commence an Excess Proceeds Offer by mailing a Permitted Investment; provided, that notice to the Trustee and each Holder as of such record date as the Company shall establish (and delivering such notice to the Trustee at least five days prior thereto) stating:
(i) that the Excess Proceeds Offer is being made pursuant to this Section 3.09 and that all Securities validly tendered will be accepted for payment on a pro rata basis;
(ii) the purchase price and the date of purchase (which shall be a Business Day no earlier than 30 days nor later than 60 days from the date such notice is mailed) (the "Excess Proceeds Payment Date");
(iii) that any Security not tendered will continue to accrue interest;
(iv) that, unless the Company defaults in the payment of the Excess Proceeds Payment, any Security accepted for payment pursuant to the Excess Proceeds Offer shall cease to accrue interest on and after the Excess Proceeds Payment Date;
(v) that Holders electing to have any Security purchased pursuant to the Excess Proceeds Offer will be required to make any Asset Sale Offer surrender such Security, together with the form entitled "Option of the Holder to Elect Purchase" on the reverse side 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 immediately preceding the Excess Proceeds Payment Date;
(vi) that Holders will be entitled to withdraw their election if the Net Cash Paying Agent receives, not later than the close of business on the third Business Day immediately preceding the Excess Proceeds Payment Date, a telegram, telex, facsimile transmission or letter setting forth the name of all Asset Sales that are not used to make a Permitted Investment within 180 dayssuch Holder, do not exceed $5 million. Each Asset Sale Offer shall remain open for a period of at least 20 business days. If the Asset Sale Offer is more than fully subscribed to by the Holders of the Securities, the particular Securities to be accepted shall be selected by such method as the Trustee shall deem fair and appropriate and which may provide for the selection of portions of the principal of Securities; provided, however, that no such partial acceptance shall reduce the portion of the principal amount of Securities delivered for purchase and a statement that such Holder is withdrawing his election to have such Securities purchased; and
(vii) that Holders whose Securities are being purchased only in part will be issued new Securities equal in principal amount to the unpurchased portion of the Securities surrendered; provided that each Security not redeemed purchased and each new Security issued shall be in a principal amount of $500 or multiples of $1 in excess thereof. At least five days prior to less thanthe date notice is mailed to each Holder, the Company shall furnish the Trustee with an Officers' Certificate stating the amount of the Excess Proceeds Payment.
(d) On the Excess Proceeds Payment Date, the Company shall:
(i) accept for payment on a pro rata basis Securities or portions thereof tendered pursuant to the Excess Proceeds Offer;
(ii) deposit one day prior to the Excess Proceeds Payment Date with the Paying Agent money sufficient to pay the aggregate purchase price of all Securities or portions thereof so accepted; and
(iii) deliver, or cause to be delivered, to the Trustee, all Securities or portions thereof so accepted, together with an Officers' Certificate specifying the Securities or portions thereof accepted for payment by the Company. The Paying Agent shall promptly mail to each Holder of Securities so accepted payment in an amount equal to the purchase price of the Securities tendered by such Holder and accepted by the Company, and the Trustee shall promptly authenticate and mail to such Holders a new Security equal in principal amount to any unpurchased portion of the Security surrendered; provided that each Security purchased and each new Security issued shall be in a principal amount of $1,000; and provided further that so long 500 or multiples of $1 in excess thereof. The Company will publicly announce the results of the Excess Proceeds Offer as soon as practicable after the Excess Proceeds Payment Date. For purposes of this Section 3.09, the Trustee shall act as the Securities Paying Agent.
(e) The Company will comply with Rule 14e - 1 under the Exchange Act and any other securities laws and regulations thereunder to the extent such laws and regulations are listed on any national securities exchange (as such term is defined applicable in the Exchange Act), event that the Company is required to repurchase Securities as described above. The Trustee shall not be responsible for determining whether compliance with such selection shall be made by the Trustee in accordance with the provisions of such exchange. SECTION 1018. [Intentionally OmittedRule 14e - 1 is required or has been satisfied.] SECTION 1019. [Intentionally Omitted.] SECTION 1020. [Intentionally Omitted.] SECTION 1021. [Intentionally Omitted.] SECTION 1022. [Intentionally Omitted.] SECTION 1023. [Intentionally Omitted.] SECTION 1024. [Intentionally Omitted.] SECTION 1025. [Intentionally Omitted.] SECTION 1026. [Intentionally Omitted.] SECTION 1027. [Intentionally Omitted.] ARTICLE ELEVEN
Appears in 1 contract
Limitation on Asset Sales. Subject 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 least equal to the Fair Market Value of the assets or Equity Interest issued or sold or otherwise disposed of;
(2) (i) other than with respect to Collateral Dispositions and as permitted Specified Asset Sales, at least 75% of the aggregate consideration to be received by the terms of this Indenture the Company shall not make any Asset Sale of and its properties unless (a) the consideration received Restricted Subsidiaries in the Asset Sale is equal to Fair Market Value; (b) the proceeds therefrom consist of at least 85% cash and/or Cash Equivalents; and (c) unless otherwise expressly provided herein, the Net Cash Proceeds of such Asset Sale shall be: (i) applied in the manner described in the following paragraph; or (ii) retained by the Company to apply to the payment determined on its Securities when due. On or before the 180th day after the date on which the Company consummates the relevant of contractually agreeing to such Asset Sale Sale) and subject to and as permitted by the terms of this Indenture, the Company shall use all of the Net Cash Proceeds from such any other Asset Sale (other than amounts that Collateral Dispositions) since the Company has determined to retain pursuant to clause date of this Indenture, on a cumulative basis, is in the form of cash or Cash Equivalents and (ii) of the preceding paragraph) with respect to make either (a) an offer to purchase (the "Collateral Dispositions and Specified Asset Sale Offer") from all holders of Securities up to a maximum principal amount (expressed as a multiple of $1,000) of Securities equal to such Net Cash Proceeds at a purchase price equal to Sales, 100% of the principal consideration to be received by the Company or its Restricted Subsidiaries in such Asset Sale is in the form of cash; and
(3) with respect to any Specified Asset Sale, (i) the aggregate amount of Net Proceeds from such Specified Asset Sale does not exceed an amount necessary to pay in full all outstanding Indebtedness under Credit Facilities permitted under Section 4.09(1), (ii) the aggregate amount of Net Proceeds from such Specified Asset Sale, together with all other Specified Asset Sales consummated after the date hereof, does not exceed $100 million, and (iii) 100% of the Net Proceeds thereof plus accrued are within ten business days of such sale used to permanently prepay, repay, redeem, defease or purchase Indebtedness under a Credit Facility permitted under Section 4.09(1). For purposes of this provision, except with respect to a Collateral Disposition and unpaid interest thereona Specified Asset Sale, if anyeach of the following will be deemed to be cash:
(a) any liabilities, as shown on the Company’s or any Restricted Subsidiary’s most recent balance sheet, of the Company or such Restricted Subsidiary (other than contingent liabilities and liabilities that are by their terms subordinated in right of payment to the Notes or any 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; and
(b) any securities, notes or other obligations received by the Company or any Restricted Subsidiary from such transferee that are, within 90 days after the Asset Sale, converted by the Company or such Restricted Subsidiary into cash or Cash Equivalents, to the date extent of purchase the cash received in that conversion. provided that in the case of any Asset Sale pursuant to a condemnation, appropriation or (b) a Permitted Investment; providedsimilar governmental taking, that the Company including by deed in lieu of condemnation, such Asset Sale shall not be required to make satisfy the requirements of items (1) and (2) above. Notwithstanding the preceding, the 75% limitation referred to above shall be deemed satisfied with respect to any Asset Sale Offer if to which such limitation applies in which the Net cash or Cash Proceeds of all Asset Sales that are not used to make a Permitted Investment within 180 days, do not exceed $5 million. Each Asset Sale Offer shall remain open for a period of at least 20 business days. If the Asset Sale Offer is more than fully subscribed to by the Holders of the Securities, the particular Securities to be accepted shall be selected by such method as the Trustee shall deem fair and appropriate and which may provide for the selection of portions of the principal of Securities; provided, however, that no such partial acceptance shall reduce the Equivalents portion of the principal amount of a Security not redeemed to less thanconsideration received therefrom, $1,000; and provided further that so long as the Securities are listed on any national securities exchange (as such term is defined in the Exchange Act), such selection shall be made by the Trustee determined in accordance with the provisions preceding provision on an after-tax basis, is equal to or greater than what the after-tax proceeds would have been had such Asset Sale complied with the aforementioned 75% limitation. Within 365 days after the receipt of any Net Proceeds from an Asset Sale other than a Collateral Disposition or a Specified Asset Sale, the Company (or the applicable Restricted Subsidiary, as the case may be) may apply those Net Proceeds at its option to any combination of the following:
(1) to permanently prepay, repay, redeem, defease or purchase secured Senior Debt;
(2) to invest in or acquire Additional Assets; or
(3) to make capital expenditures in respect of the Company’s or its Restricted Subsidiaries’ Oil and Gas Business. The requirement of clause (2) or (3) immediately above shall be deemed to be satisfied if a 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 an Affiliate of the Company within the time period specified above in this paragraph and such exchange. SECTION 1018. [Intentionally OmittedNet Proceeds are subsequently applied in accordance with such contract within six months following the date such agreement is entered into.] SECTION 1019. [Intentionally Omitted.] SECTION 1020. [Intentionally Omitted.] SECTION 1021. [Intentionally Omitted.] SECTION 1022. [Intentionally Omitted.] SECTION 1023. [Intentionally Omitted.] SECTION 1024. [Intentionally Omitted.] SECTION 1025. [Intentionally Omitted.] SECTION 1026. [Intentionally Omitted.] SECTION 1027. [Intentionally Omitted.] ARTICLE ELEVEN
Appears in 1 contract
Limitation on Asset Sales. Subject to and as permitted (a) The Company will not consummate any Asset Sale unless (i) such Asset Sale is for at least Fair Market Value, (ii) at least 80% of the consideration therefrom received by the terms Company is in the form of this Indenture cash or Cash Equivalents, (iii) if such Asset Sale involves the sale of Capital Stock of WCI it shall be in compliance with the provisions of clause (b) below," and (iv) the Company shall not make any Asset Sale of its properties unless (a) the consideration received in the Asset Sale is equal to Fair Market Value; (b) the proceeds therefrom consist of at least 85% cash and/or Cash Equivalents; and (c) unless otherwise expressly provided herein, apply the Net Cash Proceeds of such Asset Sale shall be: (ithe "Available Amount") applied in the manner described in the following paragraph; or (ii) retained by the Company to apply to the payment on its Securities when due. On or before the 180th day after the date on which the Company consummates the relevant Asset Sale and subject to and as permitted by the terms within 180 days of this Indenture, the Company shall use all of the Net Cash Proceeds from such Asset Sale (other than amounts that the Company has determined to retain pursuant to clause (ii) of the preceding paragraph) receipt thereof to make either (a) an offer to purchase (the "Asset Sale Offer") from all holders Holders of Securities Securities, up to a maximum principal amount (expressed as a multiple of $1,000) of Securities equal to such Net Cash Proceeds the Available Amount, at a purchase price equal to 100% of the principal amount thereof plus accrued and unpaid interest thereon, if any, to the date of purchase or (b) a Permitted Investmentpurchase; providedPROVIDED, HOWEVER, that the Company shall will not be required to make apply, pursuant to this paragraph (a), Net Cash Proceeds received from any Asset Sale if, and only to the extent that, such Net Cash Proceeds are applied in compliance with Section 4.17 within 180 days of such Asset Sale; PROVIDED, FURTHER, that if at any time any non-cash consideration received by the Company in connection with any Asset Sale is converted into or sold or otherwise disposed of for cash, then such conversion or disposition shall be deemed to constitute an Asset Sale under this Indenture and the Net Cash Proceeds thereof shall be applied in accordance with this Section 4.16; PROVIDED, FURTHER, that the Company may defer the Asset Sale Offer if until there is an aggregate unutilized Available Amount equal to or in excess of $5.0 million resulting from one or more Asset Sales (at which time, the entire unutilized Available Amount, and not just the amount in excess of $5.0 million, shall be applied as required pursuant to this paragraph).
(b) Notwithstanding anything to the contrary contained in clause (a) above or in this Indenture, the Company may not sell any of the Capital Stock of WCI unless such Asset Sale involves the sale of all of the Capital Stock of WCI and the Company uses the Net Cash Proceeds of all such Asset Sales that are not used Sale within 60 days of receipt thereof to make a Permitted Investment within 180 days, do not exceed $5 million. Each Asset Sale Offer shall remain open for a period of at least 20 business days. If the Asset Sale Offer is more than fully subscribed an offer to by the Holders of the Securities, the particular Securities to be accepted shall be selected by such method as the Trustee shall deem fair and appropriate and which may provide for the selection of portions of the principal of Securities; provided, however, that no such partial acceptance shall reduce the portion of the principal amount of a Security not redeemed to less than, $1,000; and provided further that so long as the Securities are listed on any national securities exchange (as such term is defined in the Exchange Act), such selection shall be made by the Trustee in accordance with the provisions of such exchange. SECTION 1018. [Intentionally Omitted.] SECTION 1019. [Intentionally Omitted.] SECTION 1020. [Intentionally Omitted.] SECTION 1021. [Intentionally Omitted.] SECTION 1022. [Intentionally Omitted.] SECTION 1023. [Intentionally Omitted.] SECTION 1024. [Intentionally Omitted.] SECTION 1025. [Intentionally Omitted.] SECTION 1026. [Intentionally Omitted.] SECTION 1027. [Intentionally Omitted.] ARTICLE ELEVENpurchase
Appears in 1 contract
Samples: Indenture (Renco Steel Holdings Inc)
Limitation on Asset Sales. Subject The Company will not, and will not permit any of its Subsidiaries to, consummate an Asset Sale unless (i) the Company or the applicable Subsidiary, as the case may be, receives consideration at the time of such Asset Sale at least equal to the fair market value of the assets sold or otherwise disposed of (as determined reasonably and as permitted in good faith by the terms Company's Board of this Indenture Directors) and (ii) upon the consummation of an Asset Sale, the Company shall not make any Asset Sale of its properties unless (a) the consideration received in the Asset Sale is equal apply, or cause such Subsidiary to Fair Market Value; (b) the proceeds therefrom consist of at least 85% cash and/or Cash Equivalents; and (c) unless otherwise expressly provided hereinapply, the Net Cash Proceeds of relating to such Asset Sale shall be: (i) applied to prepay any Senior Debt required pursuant to its terms to be prepaid, and in the manner described case of any Senior Debt incurred under any revolving credit facility, effect a permanent reduction in the following paragraph; or (ii) retained by availability under such revolving credit facility. Following the Company to apply to the payment on its Securities when due. On or before the 180th day after the date on which the Company consummates the relevant Asset Sale and subject to and as permitted by the terms of this Indenture, the Company shall use all application of the Net Cash Proceeds from such Asset Sale as set forth in the immediately preceding sentence the aggregate amount of remaining Net Cash Proceeds which have not been applied as described in the immediately preceding sentence (other than amounts that each a "Net Proceeds Offer Amount") shall be applied by the Company has determined to retain pursuant to clause (ii) of the preceding paragraph) or such Subsidiary to make either (a) an offer to purchase (the "Asset Sale Net Proceeds Offer") on a date (the "Net Proceeds Offer Payment Date") not less than 40 nor more than 55 days following the date of receipt of such Net Cash Proceeds by the Company or such Subsidiary, from all holders of Securities up to Holders on a maximum principal PRO RATA basis, that amount (expressed as a multiple of $1,000) of Securities equal to such the Net Cash Proceeds Offer Amount at a purchase price equal to 100% of the principal amount thereof of the Securities to be purchased, plus accrued and unpaid interest thereon, if any, to the date of purchase or (b) a Permitted Investmentpurchase; providedPROVIDED, HOWEVER, that if at any time any non-cash consideration received by the Company shall not be required to make or any Subsidiary of the Company, as the case may be, in connection with any Asset Sale Offer if 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. The Company may defer the Net Proceeds Offer until there is an aggregate Net Proceeds Offer Amount equal to or in excess of all $1,000,000 resulting from one or more Asset Sales that are (at which time, the entire Net Proceeds Offer Amount, and not used just the amount in excess of $1,000,000, shall be applied as required pursuant to make this paragraph). In the event of the transfer of substantially all (but not all) of the property and assets of the Company and its Subsidiaries as an entirety to a Permitted Investment within 180 daysPerson in a transaction permitted under Section 6.1, do the successor corporation shall be deemed to have sold the properties and assets of the Company and its Subsidiaries not exceed $5 millionso transferred for purposes of this covenant, and shall comply with the provisions of this Section 5.16 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 Subsidiaries deemed to be sold shall be deemed to be Net Cash Proceeds for purposes of this Section 5.16. Each Asset Sale Net Proceeds Offer will be mailed to the record Holders as shown on the register of Holders within 10 days following the receipt of the Net Cash Proceeds by the Company or its Subsidiary, as applicable, with a copy to the Trustee, and shall comply with the procedures set forth in the Indenture. Upon receiving notice of the Net Proceeds Offer, Holders may elect to tender their Securities in whole or in part in integral multiples of $1,000 in exchange for cash. To the extent Holders properly tender Securities in an amount exceeding the Net Proceeds Offer Amount, Securities of tendering Holders will be purchased on a PRO RATA basis (based on amounts tendered). A Net Proceeds Offer shall remain open for a period of at least 20 business daysdays or such longer period as may be required by law. If The Company will comply with the Asset Sale Offer is more than fully subscribed to by the Holders requirements of the Securities, the particular Securities to be accepted shall be selected by such method as the Trustee shall deem fair and appropriate and which may provide for the selection of portions of the principal of Securities; provided, however, that no such partial acceptance shall reduce the portion of the principal amount of a Security not redeemed to less than, $1,000; and provided further that so long as the Securities are listed on any national securities exchange (as such term is defined in Rule 14e-1 under the Exchange Act), Act and any other securities laws and regulations thereunder to the extent such selection shall be made by laws and regulations are applicable in connection with the Trustee in accordance with repurchase of Securities pursuant to a Net Proceeds Offer. To the extent that the provisions of such exchangeany securities laws or regulations conflict with this Section 5.16, the Company shall comply with the applicable securities laws and regulations and shall not be deemed to have breached its obligations under this Section 5.16 by virtue thereof. SECTION 1018. [Intentionally Omitted.] SECTION 1019. [Intentionally Omitted.] SECTION 1020. [Intentionally Omitted.] SECTION 1021. [Intentionally Omitted.] SECTION 1022. [Intentionally Omitted.] SECTION 1023. [Intentionally Omitted.] SECTION 1024. [Intentionally Omitted.] SECTION 1025. [Intentionally Omitted.] SECTION 1026. [Intentionally Omitted.] SECTION 1027. [Intentionally Omitted.] ARTICLE ELEVEN39
Appears in 1 contract
Samples: Indenture (Color Spot Nurseries Inc)
Limitation on Asset Sales. Subject to and as permitted by Pending the terms final application of this Indenture any such Net Proceeds, the Company shall not make any Asset Sale of its properties unless may temporarily reduce the revolving Indebtedness included among the Senior Facility Obligations or otherwise invest such Net Proceeds in Cash Equivalents.
(a) the consideration received Any Net Proceeds from Asset Sales (other than Velocity Technology Sale and Disclosed Sale) that are not applied or invested as provided in the Asset Sale is equal first sentence of this Section, or otherwise used as a permanent reduction of the Senior Facility Obligations, will be deemed to Fair Market Value; (b) the proceeds therefrom consist of at least 85% cash and/or Cash Equivalents; and (c) unless otherwise expressly provided hereinconstitute “Excess Proceeds”. The Company may, the Net Cash Proceeds of such Asset Sale shall be: (i) applied in the manner described in the following paragraph; or (ii) retained by the Company to apply subject to the payment on its Securities when due. On or before the 180th day after the date on which the Company consummates the relevant Asset Sale and subject to and as permitted by the other terms of this Indenture, use any of the Excess Proceeds equal to or less than $1,000,000 in the aggregate, for any purpose not prohibited by the Indenture. On any date that the aggregate amount of Excess Proceeds under this Indenture exceeds one million dollars ($1,000,000) (an “Asset Sale Offer Trigger Date”), the Company shall use all of the Net Cash Proceeds from such Asset Sale (other than amounts that the Company has determined to retain pursuant to clause (ii) of the preceding paragraph) will be required to make either (a) an offer to purchase all Holders of Notes issued under this Indenture (the "an “Asset Sale Offer"”) from all holders of Securities up to a purchase the maximum principal amount (expressed as of Notes and, if the Company is required to do so under the terms of any other Indebtedness on a multiple pro rata basis with the Notes that may be purchased out of $1,000) of Securities equal to such Net Cash Proceeds the Excess Proceeds, at a purchase price in cash in an amount equal to one hundred percent (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 out in this Indenture. To the extent that the aggregate amount of Notes (and any Other Indebtedness subject to such Asset Sale Offer) tendered pursuant to such Asset Sale Offer is less than the Excess Proceeds, the Company may, subject to the other terms of this Indenture, use any remaining Excess Proceeds for any purpose not prohibited by this Indenture. If the aggregate principal amount of Notes surrendered by Holders thereof in connection with any Asset Sale Offer exceeds the amount of Excess Proceeds, the Trustee shall select the Notes to be purchased on a pro rata basis; provided that no Note shall be repurchased in part if the remaining balance thereof would be less than one thousand dollars ($1000). Upon completion of the offer to purchase made under this Indenture, the amount of Excess Proceeds that was the subject of such offer to purchase shall be reset at zero.
(i) One hundred percent (100%) of the Net Proceeds of any recovery from the Office Depot Litigation,
(ii) one hundred percent (100%) of the Net Proceeds from the first ten million dollars ($10,000,000) and seventy percent (70%) of Net Proceeds in excess of ten million dollars ($10,000,000) from any Velocity Technology Sale, and
(iii) one hundred percent (100%) of the Net Proceeds from the first ten million dollars ($10,000,000) and seventy percent (70%) of Net Proceeds in excess of ten million dollars ($10,000,000) from the Disclosed Sale, the Net Proceeds described in clauses (i) (ii) and (iii) (the “Payment Proceeds”). shall, to the extent required by the Senior Facility Agent, be applied by the Company to permanently reduce the Senior Facility Obligations (a “Permanent Reduction”) with the remaining proceeds (the “Remaining Proceeds”) made available to the Company. The Company may, subject to the other terms of this Indenture, use any of the Remaining Proceeds for any purpose not prohibited by this Indenture (other than a Restricted Payment). If the Senior Facility Agent does not require such mandatory reduction or otherwise waives the application of any Payment Proceeds as a permanent reduction on the Senior Facility Obligations, the Company may use such Payment Proceeds for its scanner lease and purchase program (“Scanner Use”) in an amount not to exceed the Scanner Amounts. To the extent any Payment Proceeds are not used as a Permanent Reduction or Scanner Use, the Company shall be required to use such Payment Proceeds to make an Asset Sale Offer to all Holders of Notes issued under this Indenture to purchase the maximum principal amount of Notes and, if the Company is required to do so under the terms of any other Indebtedness on a pro rata basis with the Notes that may be purchased out of the Payment Proceeds, at a purchase price in cash in an amount equal to one hundred percent 100% of the principal amount thereof plus accrued and unpaid interest thereoninterest, if any, thereon, to the date of purchase or (b) a Permitted Investment; provided, in accordance with the procedures set out in this Indenture. To the extent that the aggregate amount of Notes (and any Other Indebtedness subject to such Asset Sale Offer) tendered pursuant to such Asset Sale Offer is less than the Payment Proceeds, the Company shall may, subject to the other terms of this Indenture, use any of the Payment Proceeds for any purpose not be required to make prohibited by this Indenture. If the aggregate principal amount of Notes surrendered by Holders thereof in connection with any Asset Sale Offer if exceeds the Net Cash Proceeds amount of all Asset Sales that are not used to make a Permitted Investment within 180 daysPayment Proceeds, do not exceed $5 million. Each Asset Sale Offer shall remain open for a period of at least 20 business days. If the Asset Sale Offer is more than fully subscribed to by the Holders of the Securities, the particular Securities to be accepted shall be selected by such method as the Trustee shall deem fair and appropriate and which may provide for select Notes to be purchased on a pro rata basis; provided that no Note shall be repurchased in part if the selection of portions remaining balance thereof would be less than $1,000. No reduction of the principal of Securities; provided, however, that no such partial acceptance Senior Facility Obligations shall reduce adversely affect the portion ability of the principal amount of a Security not redeemed Company to less than, $1,000; and provided further that so long as borrow the Securities are listed on any national securities exchange (as Scanner Amounts subject to the conditions for such term is defined borrowing in the Exchange Act), such selection shall be made by the Trustee in accordance with the provisions of such exchange. SECTION 1018. [Intentionally Omitteddefinition thereof.] SECTION 1019. [Intentionally Omitted.] SECTION 1020. [Intentionally Omitted.] SECTION 1021. [Intentionally Omitted.] SECTION 1022. [Intentionally Omitted.] SECTION 1023. [Intentionally Omitted.] SECTION 1024. [Intentionally Omitted.] SECTION 1025. [Intentionally Omitted.] SECTION 1026. [Intentionally Omitted.] SECTION 1027. [Intentionally Omitted.] ARTICLE ELEVEN
Appears in 1 contract
Samples: Fourth Supplemental Indenture (Velocity Express Corp)
Limitation on Asset Sales. Subject to Holdings shall not, directly or indirectly, and as permitted by the terms of this Indenture the Company shall not permit any Subsidiary to, directly or indirectly, make any Asset Sale of its properties Collateral unless (a) at the time of such Asset Sale, Holdings or such Subsidiary, as the case may be, receives consideration received at least equal to the Fair Market Value of the assets sold or otherwise disposed of (or in the Asset Sale is equal case of a lease or similar arrangement, receives an agreement for the payment pursuant to Fair Market Valuethe terms of such lease of rents from time to time at fair value); (b) the proceeds therefrom (in the case of a lease, when paid from time to time) consist of at least 85% cash and/or Cash Equivalents; and (c) no Default or Event of Default shall have occurred and be continuing at the time of or after giving effect to such Asset Sale; (d) unless otherwise expressly provided herein, the Net Cash Proceeds of such Asset Sale shall be: (i) be applied in connection with the manner offer to purchase the Securities described below; and (e) Holdings and its Subsidiaries may engage in the following paragraph; or (ii) retained by the Company to apply to the payment on its Securities when duean Asset Sale involving Collateral only in accordance with Article Fourteen. On or before the 180th day after the date on which the Company Holdings or any Subsidiary consummates the relevant Asset Sale and subject to and as permitted by the terms of this IndentureCollateral, the Company shall use all of the Net Cash Proceeds from such Asset Sale (other than amounts that the Company has determined to retain pursuant to clause (ii) of the preceding paragraph) to make either (ai) an offer to purchase (the "Asset Sale Offer") from all holders of Securities up to a maximum principal amount (expressed as a multiple of $1,000) of Securities equal to such the Net Cash Proceeds at a purchase price equal to 100% of the principal amount thereof plus accrued and unpaid interest thereon, if any, to the date of purchase purchase; or (bii) a Permitted Related Investment, upon consummation of which the Trustee shall have received a first priority fully perfected security interest in the property on assets acquired by Holdings or any of its Subsidiaries in connection therewith; provided, that the Company shall not be required to make any Asset Sale Offer if the Net Cash Proceeds of all Asset Sales and Events of Loss that are not used to make a Permitted Related Investment within 180 days or 365 days, respectively, do not exceed $5 million. Each Asset Sale Offer shall remain open for a period of at least 20 business days. To the extent the Asset Sale Offer is not fully subscribed to by the holders of the Securities, Holdings or the relevant Subsidiary may retain such unutilized portion of the Net Cash Proceeds. If the Asset Sale Offer is more than fully subscribed to by the Holders of the Securities, the particular Securities to be accepted shall be selected by such method as the Trustee shall deem fair and appropriate and which may provide for the selection of portions of the principal of Securities; provided, however, that no such partial acceptance shall reduce the portion of the principal amount of a Security not redeemed to less than, $1,000; and provided further that so long as the Securities are listed on any national securities exchange (as such term is defined in the Exchange Act), such selection shall be made by the Trustee in accordance with the provisions of such exchange. Holdings or such Subsidiary, as the case may be, shall cause such Net Cash Proceeds derived from the sale of Collateral to be deposited in the Collateral Account on the business day on which such Net Cash Proceeds are received by Holdings or such Subsidiary. Collateral Proceeds (including any earnings thereon) may be released from the Collateral Account only in accordance with Section 1404. Notwithstanding the above, the Company shall not engage, directly or indirectly, in any Asset Sale. SECTION 10181018 Application of Net Cash Proceeds in Event of Loss. [Intentionally OmittedIn the event that Holdings or any Subsidiary suffers any Event of Loss to any Collateral, on or before the 365th day after the date that Holdings or such Subsidiary receives any Net Cash Proceeds from such Event of Loss to Collateral, the Company shall use all of the Net Cash Proceeds from such Event of Loss to make either (i) an offer to purchase (the "Event of Loss Offer") from all holders of Securities up to a maximum principal amount (expressed as a multiple of $1,000) of Securities equal to the Net Cash Proceeds at a purchase price equal to 100% of the principal amount thereof plus accrued and unpaid interest thereon, if any, to the date of purchase; or (ii) a Permitted Related Investment, upon consummation of which the Trustee shall have received a first priority fully perfected security interest in the property on assets acquired by Holdings or any of its Subsidiaries in connection therewith; provided, that the Company shall not be required to make any Event of Loss Offer if the Net Cash Proceeds of all Events of Loss and Asset Sales that are not used to make a Permitted Related Investment within 365 days or 180 days, respectively, do not exceed $5 million. Each Event of Loss Offer shall remain open for a period of at least 20 Business Days. To the extent the Event of Loss Offer is not fully subscribed to by the holders of the Securities, Holdings or the relevant Subsidiary may retain such unutilized portion of the Net Cash Proceeds. If the Event of Loss Offer is more than fully subscribed to by the Holders of the Securities, the particular Securities to be accepted shall be selected by such method as the Trustee shall deem fair and appropriate and which may provide for the selection of portions of the principal of Securities; provided, however, that no such partial acceptance shall reduce the portion of the principal amount of a Security not redeemed to less than $1,000; and provided further that so long as the Securities are listed on any national securities exchange (as such term is defined in the Exchange Act), such selection shall be made by the Trustee in accordance with the provisions of such exchange. Holdings or such Subsidiary, as the case may be, shall cause such Net Cash Proceeds derived from the loss of Collateral to be deposited in the Collateral Account on the Business Day on which such Net Cash Proceeds are received by Holdings or such Subsidiary. Collateral Proceeds (including any earnings thereon) may be released from the Collateral Account only in accordance with Section 1404.] SECTION 1019. [Intentionally Omitted.] SECTION 1020. [Intentionally Omitted.] SECTION 1021. [Intentionally Omitted.] SECTION 1022. [Intentionally Omitted.] SECTION 1023. [Intentionally Omitted.] SECTION 1024. [Intentionally Omitted.] SECTION 1025. [Intentionally Omitted.] SECTION 1026. [Intentionally Omitted.] SECTION 1027. [Intentionally Omitted.] ARTICLE ELEVEN
Appears in 1 contract
Samples: Indenture (Gb Property Funding Corp)
Limitation on Asset Sales. Subject to Holdings shall not, directly or indirectly, and as permitted by the terms of this Indenture the Company shall not permit any Subsidiary to, directly or indirectly, make any Asset Sale of its properties Collateral unless (a) at the time of such Asset Sale, Holdings or such Subsidiary, as the case may be, receives consideration received at least equal to the Fair Market Value of the assets sold or otherwise disposed of (or in the Asset Sale is equal case of a lease or similar arrangement, receives an agreement for the payment pursuant to Fair Market Valuethe terms of such lease of rents from time to time at fair value); (b) the proceeds therefrom (in the case of a lease, when paid from time to time) consist of at least 85% cash and/or Cash Equivalents; and (c) no Default or Event of Default shall have occurred and be continuing at the time of or after giving effect to such Asset Sale; (d) unless otherwise expressly provided herein, the Net Cash Proceeds of such Asset Sale shall be: (i) be applied in connection with the manner offer to purchase the Securities described below; and (e) Holdings and its Subsidiaries may engage in the following paragraph; or (ii) retained by the Company to apply to the payment on its Securities when duean Asset Sale involving Collateral only in accordance with Article Fourteen. On or before the 180th day after the date on which the Company Holdings or any Subsidiary consummates the relevant Asset Sale and subject to and as permitted by the terms of this IndentureCollateral, the Company shall use all of the Net Cash Proceeds from such Asset Sale (other than amounts that the Company has determined to retain pursuant to clause (ii) of the preceding paragraph) to make either (ai) an offer to purchase (the "Asset Sale Offer") from all holders of Securities up to a maximum principal amount (expressed as a multiple of $1,000) of Securities equal to such the Net Cash Proceeds at a purchase price equal to 100% of the principal amount thereof plus accrued and unpaid interest thereon, if any, to the date of purchase purchase; or (bii) a Permitted Related Investment, upon consummation of which the Trustee shall have received a first priority fully perfected security interest in the property on assets acquired by Holdings or any of its Subsidiaries in connection therewith; provided, that the Company shall not be required to make any Asset Sale Offer if the Net Cash Proceeds of all Asset Sales and Events of Loss that are not used to make a Permitted Related Investment within 180 days or 365 days, respectively, do not exceed $5 million. Each Asset Sale Offer shall remain open for a period of at least 20 business days. To the extent the Asset Sale Offer is not fully subscribed to by the holders of the Securities, Holdings or the relevant Subsidiary may retain such unutilized portion of the Net Cash Proceeds. If the Asset Sale Offer is more than fully subscribed to by the Holders of the Securities, the particular Securities to be accepted shall be selected by such method as the Trustee shall deem fair and appropriate and which may provide for the selection of portions of the principal of Securities; provided, however, that no such partial acceptance shall reduce the portion of the principal amount of a Security not redeemed to less than, $1,000; and provided further that so long as the Securities are listed on any national securities exchange (as such term is defined in the Exchange Act), such selection shall be made by the Trustee in accordance with the provisions of such exchange. Holdings or such Subsidiary, as the case may be, shall cause such Net Cash Proceeds derived from the sale of Collateral to be deposited in the Collateral Account on the business day on which such Net Cash Proceeds are received by Holdings or such Subsidiary. Collateral Proceeds (including any earnings thereon) may be released from the Collateral Account only in accordance with Section 1404. Notwithstanding the above, the Company shall not engage, directly or indirectly, in any Asset Sale. SECTION 1018. [Intentionally OmittedApplication of Net Cash Proceeds in Event of Loss. In the event that Holdings or any Subsidiary suffers any Event of Loss to any Collateral, on or before the 365th day after the date that Holdings or such Subsidiary receives any Net Cash Proceeds from such Event of Loss to Collateral, the Company shall use all of the Net Cash Proceeds from such Event of Loss to make either (i) an offer to purchase (the "Event of Loss Offer") from all holders of Securities up to a maximum principal amount (expressed as a multiple of $1,000) of Securities equal to the Net Cash Proceeds at a purchase price equal to 100% of the principal amount thereof plus accrued and unpaid interest thereon, if any, to the date of purchase; or (ii) a Permitted Related Investment, upon consummation of which the Trustee shall have received a first priority fully perfected security interest in the property on assets acquired by Holdings or any of its Subsidiaries in connection therewith; provided, that the Company shall not be required to make any Event of Loss Offer if the Net Cash Proceeds of all Events of Loss and Asset Sales that are not used to make a Permitted Related Investment within 365 days or 180 days, respectively, do not exceed $5 million. Each Event of Loss Offer shall remain open for a period of at least 20 Business Days. To the extent the Event of Loss Offer is not fully subscribed to by the holders of the Securities, Holdings or the relevant Subsidiary may retain such unutilized portion of the Net Cash Proceeds. If the Event of Loss Offer is more than fully subscribed to by the Holders of the Securities, the particular Securities to be accepted shall be selected by such method as the Trustee shall deem fair and appropriate and which may provide for the selection of portions of the principal of Securities; provided, however, that no such partial acceptance shall reduce the portion of the principal amount of a Security not redeemed to less than $1,000; and provided further that so long as the Securities are listed on any national securities exchange (as such term is defined in the Exchange Act), such selection shall be made by the Trustee in accordance with the provisions of such exchange. Holdings or such Subsidiary, as the case may be, shall cause such Net Cash Proceeds derived from the loss of Collateral to be deposited in the Collateral Account on the Business Day on which such Net Cash Proceeds are received by Holdings or such Subsidiary. Collateral Proceeds (including any earnings thereon) may be released from the Collateral Account only in accordance with Section 1404.] SECTION 1019. [Intentionally Omitted.] SECTION 1020. [Intentionally Omitted.] SECTION 1021. [Intentionally Omitted.] SECTION 1022. [Intentionally Omitted.] SECTION 1023. [Intentionally Omitted.] SECTION 1024. [Intentionally Omitted.] SECTION 1025. [Intentionally Omitted.] SECTION 1026. [Intentionally Omitted.] SECTION 1027. [Intentionally Omitted.] ARTICLE ELEVEN
Appears in 1 contract
Samples: Indenture (Gb Holdings Inc)
Limitation on Asset Sales. Subject to (a) The Company shall not, and as permitted by shall not permit any of the terms Restricted Subsidiaries of this Indenture the Company shall not to, make any Asset Sale of its properties Disposition, unless (ai) the consideration received from such Asset Disposition is at least equal to the Fair Market Value of the Capital Stock, property or other assets sold, (ii) at least 75% of the consideration received from such Asset Disposition is in the form of Cash, Temporary Cash Investments or Marketable Equity Securities (the "75% Test"), provided that the amount of any liabilities (as shown on the Company's or such Restricted Subsidiary's most recent balance sheet or in the notes thereto) of the Company or such Restricted Subsidiary which are assumed by the transferee, cancelled or satisfied in any Asset Sale is equal to Fair Market Value; Disposition (b) the proceeds therefrom consist of at least 85% cash and/or Cash Equivalents; and (c) unless otherwise expressly provided herein, the Net Cash Proceeds other than liabilities that are incurred in connection with or in anticipation of such Asset Sale Disposition) as a credit against the purchase price therefor shall be: be deemed to be Cash to the extent of the amount so credited for purposes of the 75% Test, and (iiii) applied in the manner described in the following paragraph; or (ii) retained by the Company applies, or causes its Restricted Subsidiaries to apply to the payment on its Securities when due. On or before the 180th day after the date on which the Company consummates the relevant Asset Sale and subject to and as permitted by the terms of this Indentureapply, the Company shall use all 100% of the Net Cash Proceeds from such any Asset Sale (other than amounts that the Company has determined Disposition to retain pursuant to clause (ii) of the preceding paragraph) to make either (a) an offer to purchase (the a "Asset Sale Net Proceeds Offer") from all holders of Securities up to purchase Notes outstanding having a maximum principal amount (expressed as a multiple of $1,000) of Securities Net Proceeds Offer Price at least equal to such Net Cash Proceeds, such Net Proceeds Offer to commence on a date not later than 360 calendar days after the date of such Asset Disposition at a purchase price (the "Net Proceeds Offer Price") equal to 100% of the principal amount thereof thereof, plus accrued and unpaid interest thereon, if any, thereon to the closing date of purchase the Net Proceeds Offer (the "Net Proceeds Purchase Date"), except to the extent that such Net Proceeds have been applied either to the permanent repayment of principal and interest on Senior Indebtedness or (b) a Permitted Investment; provided, that Indebtedness of the Restricted Subsidiary of the Company shall that made such Asset Disposition or to the purchase of assets or businesses in the same line of business as the Company and its Restricted Subsidiaries or assets incidental thereto. Notwithstanding anything to the contrary in this Section 4.10, the Company will not be required to make a Net Proceeds Offer with respect to any Net Proceeds from Asset Sale Dispositions until the aggregate amount of Net Proceeds from Asset Dispositions in any period of 12 consecutive months which are not applied either to the permanent repayment of principal and interest on Indebtedness (as described above) or to the purchase of assets or businesses (as described above) exceeds $10 million. For purposes of this Section 4.10, the principal amount of Notes for which a Net Proceeds Offer if shall be made is referred to as the "Net Proceeds Offer Amount."
(b) To the extent required by any pari passu Indebtedness, and provided there is a permanent reduction in the principal amount of such pari passu Indebtedness, the Company shall simultaneously with the Net Cash Proceeds Offer make an offer to purchase such pari passu Indebtedness (a "Pari Passu Offer") in an amount (the "Pari Passu Offer Amount") equal to the Net Proceeds Offer Amount, as determined above, multiplied by a fraction, the numerator of all Asset Sales that are not used which is the outstanding principal amount of such pari passu Indebtedness and the denominator of which is the sum of the outstanding principal amount of the Notes and such pari passu Indebtedness, in which case the Net Proceeds Offer Amount shall be correspondingly reduced by such Pari Passu Offer Amount.
(c) The Company may credit against its obligation to make a Permitted Investment within 180 daysNet Proceeds Offer pursuant to this Section 4.10 up to $2 million aggregate principal amount of Notes, do not exceed $5 million. Each Asset Sale Offer shall remain open for a period of at least 20 business days. If the Asset Sale Offer is more than fully subscribed to by the Holders of the Securities, the particular Securities to be accepted shall be selected by such method as the Trustee shall deem fair and appropriate and which may provide for the selection of portions of the principal of Securities; provided, however, that no such partial acceptance shall reduce the portion 100% of the principal amount thereof, which have been acquired by the Company and surrendered for cancellation after the making of the Net Proceeds Offer and which have not been used as a credit 42 against or acquired pursuant to any prior obligation to make an offer to purchase Notes pursuant to the provisions set forth under Section 4.14 or this Section 4.10.
(d) Upon notice of a Security not redeemed Net Proceeds Offer provided to less thanthe Trustee by the Company, $1,000; and provided further that so long as the Securities are listed on any national securities exchange (as notice of such term is defined in the Exchange Act), such selection Net Proceeds Offer shall be made mailed by the Trustee (at the Company's expense) not less than 30 calendar days nor more than 60 calendar days before the Net Proceeds Purchase Date to each Holder of Notes at such Holder's last registered address appearing in accordance the Register. The Company shall provide the Trustee with copies of all materials to be delivered with such notice. The notice shall contain all instructions and material necessary to enable such Holders to tender Notes pursuant to the Net Proceeds Offer. In such notice, the Company shall state: (1) that the Net Proceeds Offer is being made pursuant to this Section 4.10 and that it will purchase the principal amount of Notes equal to the Net Proceeds Offer Amount; (2) the Net Proceeds Offer Price and the Net Proceeds Purchase Date; (3) that any Note not tendered will continue to accrue interest; (4) that, unless the Company defaults in the payment of the Net Proceeds Offer Price, all Notes accepted for payment pursuant to the Net Proceeds Offer shall cease to accrue interest after the Net Proceeds Purchase Date; (5) that Holders electing to have any Notes purchased pursuant to such Net Proceeds Offer will be required to surrender the Notes, and complete the section entitled "Option of Holder to Elect Purchase" on the reverse of the Notes or transfer beneficial ownership of such Notes by book-entry transfer, to the Company, the Depositary (if appointed by the Company), or 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 Purchase Date; (6) 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 third Business Day preceding the Net Proceeds Purchase Date, a telegram, 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 the Notes purchased; and (7) that Holders whose Notes are being purchased only in part will be issued new Notes equal in principal amount to the unpurchased portion of the Notes surrendered (or transferred by book-entry transfer), provided that the principal amount of such unpurchased portion must be equal to $1,000 or an integral multiple thereof. If Notes in a principal amount in excess of the Net Proceeds Offer Amount are surrendered pursuant to the Net Proceeds Offer, the Company shall purchase Notes on a pro rata basis (with such adjustments as may be deemed appropriate by the Company so that only Notes in denominations of $1,000 or integral multiples of $1,000 shall be acquired). The Company will comply with the provisions requirements of Rule 14e-1 under the Exchange Act and any other securities laws and regulations thereunder to the extent such laws and regulations are applicable in connection with the repurchase of the Notes as a result of a Net Proceeds Offer.
(e) On the Net Proceeds Purchase Date, the Company shall (i) accept for payment Notes or portions thereof validly tendered pursuant to the Net Proceeds Offer (on a pro rata basis if required), (ii) deposit with the Paying Agent money in immediately available funds, 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 Officer's Certificate stating the Notes or portions thereof accepted for payment by the Company. If the Company complies with its obligations set forth in the immediately preceding sentence, whether or not a Default or Event of Default has occurred and is continuing on the Net Proceeds Purchase Date, the Paying Agent shall as promptly as practicable mail to each Holder of Notes so accepted payment in an amount equal to the purchase price, and the Company shall execute and the Trustee shall as promptly as practicable authenticate and mail or deliver to such Holder a new Note equal in principal amount to any unpurchased portion of the Note surrendered. Any Notes not so accepted shall be as promptly as practicable mailed or delivered by the Company to the Holders thereof. The Company shall publicly announce the results of the Net Proceeds Offer on or as promptly as practicable after the Net Proceeds Purchase Date. For purposes of this covenant, the Trustee shall act as the Paying Agent.
(f) Notwithstanding anything to the contrary contained in this Indenture, the Company or any of its Restricted Subsidiaries may engage in transactions in which theatre properties will be transferred in exchange for one or more other theatre properties; provided that if the Fair Market Value of the theatre properties to be transferred by the Company or such Restricted Subsidiary, plus the Fair Market Value of any other consideration paid or credited by the Company or such Restricted Subsidiary (the "Transaction Value") exceeds $2 million, such transaction shall require approval of the Board of Directors. In addition, each such transaction shall be valued at an amount equal to all consideration received by the Company or such Restricted Subsidiary in such transaction, other than the theatre properties received pursuant to such exchange ("Other Consideration"), for purposes of determining whether an Asset Disposition has occurred. If the Other Consideration is of an amount and character such that such transaction constitutes an Asset Disposition, then Section 4.10(a) shall be applicable to any Net Proceeds of such exchange. SECTION 1018. [Intentionally OmittedOther Consideration.] SECTION 1019. [Intentionally Omitted.] SECTION 1020. [Intentionally Omitted.] SECTION 1021. [Intentionally Omitted.] SECTION 1022. [Intentionally Omitted.] SECTION 1023. [Intentionally Omitted.] SECTION 1024. [Intentionally Omitted.] SECTION 1025. [Intentionally Omitted.] SECTION 1026. [Intentionally Omitted.] SECTION 1027. [Intentionally Omitted.] ARTICLE ELEVEN
Appears in 1 contract
Samples: Indenture (Cinemark Inc)
Limitation on Asset Sales. Subject to and as permitted by the terms of this Indenture the Company shall not make any Asset Sale of its properties unless (a) The Company may not, and may not permit any Restricted Subsidiary to, directly or indirectly, consummate an Asset Sale (including the sale of any of the Capital Stock of any Restricted Subsidiary) providing for Net Proceeds in excess of $2,500,000 unless at least (A) 50% of the consideration thereof received by the Company or such Restricted Subsidiary is in the Asset Sale is equal to Fair Market Value; (b) the proceeds therefrom consist form of at least 85% cash and/or Cash Equivalents; Equivalents and/or Marketable Securities, and (cB) unless otherwise expressly provided herein, the Net Cash Proceeds of such Asset Sale shall be: (i) applied in the manner described in the following paragraph; or (ii) retained by the Company to apply to the payment on its Securities when due. On or before the 180th day after the date on which the Company consummates the relevant Asset Sale and subject to and as permitted by the terms of this Indenture, the Company shall use all 75% of the Net Cash Proceeds from such Asset Sale (other than amounts that are applied to one or more of the following in such combination as the Company has determined shall elect:
(i) an investment in another asset or business in the same line of business as, or a line of business similar to retain pursuant to clause (ii) that of, the line of business of the preceding paragraph) Company and its Restricted Subsidiaries at that time; provided that such investment occurs on or prior to make either (a) an offer to purchase the 365th day following the date of such Asset Sale (the "Asset Sale OfferDisposition Date"),
(ii) the purchase, redemption or other prepayment or repayment of outstanding Senior Indebtedness on or prior to the Asset Sale Disposition Date, or
(iii) an offer expiring on or prior to the Purchase Date.
(b) Any Net Proceeds from the Asset Sale that are not applied or invested as provided in Sections 4.14(a)(1) or (a)(ii) shall constitute "Excess Proceeds"; provided, however, that if an offer to purchase Senior Indebtedness with Net Proceeds from any Asset Sales has commenced on or prior to 30 days after the Asset Sale Disposition Date and completed on or prior to 70 days after the Asset Sale Disposition Date, only the Net Proceeds not used to purchase Senior Indebtedness in such offer shall be deemed Excess Proceeds.
(c) When the aggregate amount of Excess Proceeds exceeds $10,000,000 (the "Asset Sale Trigger Date"),the Company shall make an Offer to all holders of Securities up Holders to a purchase the maximum principal amount (expressed as a multiple of $1,000) the Securities then outstanding that may be purchased out of Securities equal to such Net Cash Proceeds Excess Proceeds, at a purchase an offer price in cash in an amount equal to 100% of the principal amount thereof Accreted Value of such Securities, plus any accrued and unpaid interest thereonand Liquidated Damages from April 1, 2002 to the Purchase Date if anysuch date occurs after April 1, 2002.
(d) To the extent that any Excess Proceeds remain after completion of the Offer, the Company may use such remaining amount for general corporate purposes.
(e) Upon completion of an Offer, the amount of Excess Proceeds shall be reset at zero.
(f) Notwithstanding the foregoing, to the date extent that any or all of purchase the Net Proceeds of an Asset Sale is prohibited or (b) a Permitted Investment; provideddelayed by applicable local law from being repatriated to the United States, that the Company shall portion of such Net Proceeds so affected will not be required to make be applied pursuant to this Section 4.14, but may be retained for so long, but only for so long, as the applicable local law prohibits repatriation to the United States. The Company will promptly take all reasonable actions required by the applicable local law to permit such repatriation, and once such repatriation of any affected Net Proceeds is not prohibited under applicable local law, such repatriation will be immediately effected and such repatriated Net Proceeds will be applied in the manner set forth above as if such Asset Sale Offer if had occurred on the Net Cash Proceeds date of all Asset Sales that are not used to make a Permitted Investment within 180 days, do not exceed $5 million. Each Asset Sale Offer shall remain open for a period of at least 20 business days. If the Asset Sale Offer is more than fully subscribed to by the Holders of the Securities, the particular Securities to be accepted shall be selected by such method as the Trustee shall deem fair and appropriate and which may provide for the selection of portions of the principal of Securities; provided, however, that no such partial acceptance shall reduce the portion of the principal amount of a Security not redeemed to less than, $1,000; and provided further that so long as the Securities are listed on any national securities exchange (as such term is defined in the Exchange Act), such selection shall be made by the Trustee in accordance with the provisions of such exchange. SECTION 1018. [Intentionally Omittedrepatriation.] SECTION 1019. [Intentionally Omitted.] SECTION 1020. [Intentionally Omitted.] SECTION 1021. [Intentionally Omitted.] SECTION 1022. [Intentionally Omitted.] SECTION 1023. [Intentionally Omitted.] SECTION 1024. [Intentionally Omitted.] SECTION 1025. [Intentionally Omitted.] SECTION 1026. [Intentionally Omitted.] SECTION 1027. [Intentionally Omitted.] ARTICLE ELEVEN
Appears in 1 contract
Samples: Indenture (Jordan Industries Inc)
Limitation on Asset Sales. Subject to (a) The Company will not, and as permitted by the terms will not permit any of this Indenture the Company shall not its Restricted Subsidiaries to, make any Asset Sale of its properties unless (ai) the Company or such Restricted Subsidiary, as the case may be, receives consideration received at the time of such Asset Sale at least equal to the fair market value (determined by the Company in good faith as of the date the Company enters into a definitive agreement relating to such Asset Sale) of the assets or other property sold or disposed of in the Asset Sale and (ii) except (x) in the case of a Permitted Asset Swap or (y) if such Asset Sale has a purchase price of less than $50.0 million, at least 75% of such consideration is equal in the form of cash or Cash Equivalents or assets used or useful in the business of the Company; provided that for purposes of this Section 4.14 “cash” shall include (A) the amount of any liabilities (other than liabilities that are by their terms subordinated to Fair Market Value; the Notes or any Subsidiary Guarantee) of the Company or such Restricted Subsidiary (as shown on the Company’s or such Restricted Subsidiary’s most recent balance sheet or in the notes thereto) that are assumed by the transferee in connection with such assets 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 there is no further recourse to the Company or any of its Subsidiaries with respect to such liabilities and (B) any Designated Noncash Consideration having an aggregate fair market value that, when taken together with all other Designated Noncash Consideration previously received and then outstanding, does not exceed $50.0 million 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). Notwithstanding clause (ii) above, (a) all or a portion of the consideration in connection with any such Asset Sale may consist of all or substantially all of the assets or a majority of the Voting Stock of an existing television or radio business, franchise or station or digital business (whether existing as a separate entity, subsidiary, division, unit or otherwise) or any related business used or useful in the Company’s business and (b) the proceeds therefrom consist Company may, and may permit its Subsidiaries to, issue shares of at least 85% cash and/or Cash EquivalentsCapital Stock in a Qualified Joint Venture to a Qualified Joint Venture Partner without regard to clause (ii) above; provided that, in the case of any of (a) or (b) of this sentence after giving effect to any such Asset Sale and related acquisition of assets or Voting Stock, (x) no Default or Event of Default shall have occurred or be continuing; and (cy) unless otherwise expressly provided hereinthe Net Proceeds of any such Asset Sale, if any, are applied in accordance with this Section 4.14.
(b) Within 365 days after any Asset Sale (or such shorter period as the Company in its sole election may determine), the Company may elect to apply or cause to be applied the Net Cash Proceeds of from such Asset Sale shall be: to (i) applied in the manner described in the following paragraph; or repay Secured Indebtedness, (ii) retained by make an investment in, or acquire assets related to or otherwise useful in the business of the Company and its Subsidiaries existing on the Issue Date and/or (iii) to apply make capital expenditures in or that is used or useful in the business or to the payment on its Securities when due. On make capital expenditures for maintenance, repair or before the 180th day after the date on which the Company consummates the relevant Asset Sale and subject to and as permitted by improvement of existing assets in accordance with the terms of this Indenture. Any Net Proceeds from an Asset Sale not applied or invested as provided in the first sentence of this clause (b) within 365 days (or such shorter period as the Company in its sole election may determine) of such Asset Sale will be deemed to constitute “Excess Proceeds” on the 366th day after such Asset Sale; provided that in the case of clauses (ii) and (iii) above, a binding commitment shall be treated as a permitted application of the Net Proceeds from the date of such commitment so long as the Company or a Restricted Subsidiary enters into such commitment with the good faith expectation that such Net Proceeds will be applied to satisfy such commitment within 180 days of such commitment; provided, further, that if such commitment is later terminated or cancelled prior to the application of such Net Proceeds or such Net Proceeds are not so applied within such 180-day period, then such Net Proceeds shall constitute Excess Proceeds.
(c) In no event later than 20 Business Days after any date (an “Asset Sale Offer Trigger Date”) that the aggregate amount of Excess Proceeds exceeds $40.0 million, the Company shall use all of the Net Cash Proceeds from such Asset Sale (other than amounts that the Company has determined to retain pursuant to clause (ii) of the preceding paragraph) to make either (a) commence an offer to purchase to all holders of Notes (the "an “Asset Sale Offer"”) from all holders of Securities up to a maximum principal amount (expressed as a multiple of $1,000) of Securities equal to such Net Cash Proceeds at a purchase price in cash equal to 100% of the principal amount thereof thereof, plus accrued and unpaid interest thereon, if any, to the date of purchase and to all holders of other Indebtedness ranking pari passu with the Notes as selected by the Company, in each case, equal to the Excess Proceeds. If the aggregate principal amount of Notes and other pari passu debt tendered into such Asset Sale Offer exceeds the amount of Excess Proceeds, the Trustee will select the Notes and the Company or its agent shall select the other pari passu debt to be purchased on a pro rata basis, by lot or such method as the Trustee shall deem fair and appropriate or, in the event the Notes are in global form, as prescribed by DTC. Upon completion of each Asset Sale Offer, the amount of Excess Proceeds will be reset at zero. To the extent that any Excess Proceeds remain after completion of an Asset Sale Offer, the Company may use the remaining amount for general corporate purposes and such amount shall no longer constitute “Excess Proceeds.”
(bd) In connection with an Asset Sale Offer, the Company shall mail to each holder of Notes at such holder’s registered address a Permitted Investment; provided, notice stating: (i) that an Asset Sale Offer Trigger Date has occurred and that the Company shall not is offering to purchase the maximum principal amount of Notes that may be required purchased out of the Excess Proceeds (and identifying other Indebtedness, if any, that is entitled to make any participate pro rata in the Asset Sale Offer), at an offer price in cash equal to 100% of the principal amount thereof, plus accrued and unpaid interest to the date of purchase (the “Asset Sale Offer if 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 Net Cash Proceeds date such notice is mailed, (ii) the amount of all accrued and unpaid interest as of the Asset Sales Sale Offer Purchase Date, (iii) that are any Note not used tendered will continue to make a Permitted Investment within 180 daysaccrue interest, do not exceed $5 million. Each (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 remain open for a period of at least 20 business days. If cease to accrue interest after the Asset Sale Offer is more than fully subscribed Purchase Date, (v) the procedures, consistent with the Indenture, to be followed by a holder of Notes in order to accept an Asset Sale Offer or to withdraw such acceptance and (vi) such other information as may be required by the Holders Indenture and 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, (ii) deposit with the Paying Agent the aggregate purchase price of all Notes or portions thereof accepted for payment and any accrued and unpaid interest on such Notes as of the SecuritiesAsset Sale Offer Purchase Date, the particular Securities 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 the Indenture, selection of the Notes to be purchased by the Company shall be selected in compliance with the requirements of the principal national securities exchange, if any, on which the Notes are listed or, if the Notes are not so listed, on a pro rata basis, by lot or by such method as the Trustee shall deem fair and appropriate or, in the event the Notes are in global form, as otherwise prescribed by DTC; provided 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 -55- equal to the purchase price for such Notes plus any accrued and which may provide unpaid interest thereon, and the Trustee shall promptly authenticate and mail to such holder of Notes accepted for the selection of portions of the payment in part a new Note equal in principal of Securities; provided, however, that no such partial acceptance shall reduce the amount to any unpurchased portion of the principal amount Notes, and any Note not accepted for payment in whole or in part shall be promptly returned to the holder of a Security not redeemed such Note. On and after an Asset Sale Offer Purchase Date, interest will cease to less thanaccrue on the Notes or portions thereof accepted for payment, $1,000; and provided further that so long unless the Company defaults in the payment of the purchase price therefor. The Company will announce the results of the Asset Sale Offer to holders of the Notes on or as soon as practicable after the Securities are listed on any national securities exchange Asset Sale Offer Purchase Date.
(as such term is defined in f) The Company will comply with the applicable tender offer rules, including the requirements of Rule 14e-1 under the Exchange Act), such selection shall be made by and all other applicable securities laws and regulations in connection with any Asset Sale Offer. To the Trustee in accordance with extent that the provisions of any applicable securities laws or regulations conflict with the Asset Sale Offer provisions of this Indenture, the Company will comply with the applicable securities laws and regulations and shall not be deemed to have breached their obligations under the Asset Sale Offer provisions of this Indenture by virtue of such exchange. SECTION 1018. [Intentionally Omittedcompliance.] SECTION 1019. [Intentionally Omitted.] SECTION 1020. [Intentionally Omitted.] SECTION 1021. [Intentionally Omitted.] SECTION 1022. [Intentionally Omitted.] SECTION 1023. [Intentionally Omitted.] SECTION 1024. [Intentionally Omitted.] SECTION 1025. [Intentionally Omitted.] SECTION 1026. [Intentionally Omitted.] SECTION 1027. [Intentionally Omitted.] ARTICLE ELEVEN
Appears in 1 contract
Samples: Indenture (E.W. SCRIPPS Co)
Limitation on Asset Sales. Subject to and as permitted by the terms of this Indenture the The Company shall not, and shall not make permit any of its Restricted Subsidiaries to, directly or indirectly, consummate any Asset Sale that results in Net Proceeds in excess of its properties $1.5 million (including the sale of any of the Capital Stock of any Restricted Subsidiary) unless (a) the consideration received in the such Asset Sale is equal to Fair Market Value; (b) for fair market value as determined by the proceeds therefrom consist Board of at least 85% cash and/or Cash Equivalents; Directors acting reasonably and (c) unless otherwise expressly provided herein, in good faith and the Company or any Restricted Subsidiary applies the Net Cash Proceeds of such Asset Sale shall be: (i) applied in the manner described in the following paragraph; or (ii) retained by the Company to apply to the payment on its Securities when due. On or before the 180th day after the date on which the Company consummates the relevant Asset Sale and subject to and as permitted by the terms of this Indenture, the Company shall use all of the Net Cash Proceeds from such Asset Sale to one or more of the following in such combination as it shall choose: (a) an investment in assets (including Capital Stock or other than amounts that securities purchased in connection with the acquisition of Capital Stock or property of another Person) used or useful in businesses similar or ancillary to the business of the Company has determined or its Restricted Subsidiaries as conducted at the time of such Asset Sale; provided that such investment occurs on or prior to retain pursuant the 366th day following the date of such Asset Sale (the "Asset Sale Payment Date"); (b) a Net Proceeds Offer (as defined below) expiring on or prior to the Asset Sale Payment Date; or (c) in the case of an Asset Sale by the Company, the purchase, redemption or other prepayment or repayment of outstanding Senior Indebtedness on or prior to the Asset Sale Payment Date and, in the case of an Asset Sale by any Restricted Subsidiary, the purchase, redemption or other prepayment or repayment of any Indebtedness of such Restricted Subsidiary on or prior to the Asset Sale Payment Date; provided that any prepayment or repayment of amounts outstanding under the Credit Agreement in excess of $20.0 million in the aggregate after the Issue Date shall be a permanent reduction in the commitment thereunder in the amount of such excess. Notwithstanding the foregoing, in the event such Net Proceeds, after giving effect to any investment or payment permitted by clause (iia) or (c) above (the "Excess Proceeds"), are less than $15.0 million, the application of the Excess Proceeds to a Net Proceeds Offer may be deferred until such time as the Excess Proceeds, plus the aggregate amount of any subsequent Net Proceeds not otherwise invested or applied to repay amounts outstanding under the Senior Indebtedness of the Company or under the Indebtedness of any Restricted Subsidiary, as the case may be, as permitted by clause (a) or (c) above, are at least equal to $15.0 million, at which time the Company shall apply all the Excess Proceeds to a Net Proceeds Offer. Upon completion of a Net Proceeds Offer, the amount of Excess Proceeds shall be reset at zero. For purposes of clause (b) of the preceding paragraph) , the Company will apply that portion of the Net Proceeds of the Asset Sale required to make either a tender offer in accordance with applicable law (a) an offer to purchase (the a "Asset Sale Net Proceeds Offer") from all holders of to repurchase Securities up to a maximum principal amount (expressed as a multiple of $1,000) of Securities equal to such Net Cash Proceeds at a purchase price equal to not less than 100% of the principal amount thereof plus accrued and unpaid interest thereon, if any, to the date of purchase or repurchase, which date shall be no earlier than 30 days nor later than 45 days after the date of mailing of the Net Proceeds Offer (b) a Permitted Investment; providedthe "Net Proceeds Payment Date"). The Company may, that at its option, receive credit against any Net Proceeds Offer for the principal amount of Securities acquired by the Company or any of its Subsidiaries and surrendered for cancellation within six months prior to or at any time after the date of such Asset Sale relating to such Net Proceeds Offer and before the Net Proceeds Payment Date. Any Net Proceeds Offer will be made by the Company only if and to the extent permitted under, and subject to prior compliance with, the terms of any agreement governing Senior Indebtedness of the Company or Indebtedness of a Restricted Subsidiary, as the case may be. If the Company commences a Net Proceeds Offer and securities of the Company ranking pari passu in right of payment with the Securities are outstanding at the commencement of such Net Proceeds Offer and the terms of such securities provide that a similar offer must be made with respect thereto, then the Net Proceeds Offer for the Securities shall be made concurrently with such other offer and securities of each issue will be accepted pro rata in proportion to the aggregate principal amount of securities of each issue which the holders of securities of such issue elect to have purchased. After the last date on which Holders are permitted to tender their Securities in a Net Proceeds Offer, the Company will not be required restricted under this Section 4.12 as to its use of any remaining Net Proceeds available to make any Asset Sale such Net Proceeds Offer if the Net Cash Proceeds of all Asset Sales that are but not used to redeem Securities pursuant hereto. Notwithstanding the foregoing, if, at the time of an Asset Sale by the Company or any Restricted Subsidiary, the Company's Fixed Charge Coverage Ratio for the four fiscal quarter period ending immediately prior to the date of such Asset Sale would have been at least 2.75 to 1, determined on a pro forma basis as if such Asset Sale occurred at the beginning of such four-quarter period, then any Net Proceeds received will not be subject to this Section 4.12. At such time as the Company determines to make a Permitted Investment within 180 daysNet Proceeds Offer, do not exceed $5 millionit shall so notify the Trustee in writing. Each Asset Sale Within 15 days thereafter, it shall mail or cause the Trustee to mail (in the Company's name and at its expense) notice of a Net Proceeds Offer shall remain open for a period of at least 20 business days. If the Asset Sale Offer is more than fully subscribed to by the Holders of the Securities, the particular Securities at their last registered addresses with a copy to be accepted shall be selected by such method as the Trustee shall deem fair and appropriate and which may provide for the selection of portions of the principal of Securities; provided, however, that no such partial acceptance shall reduce the portion of the principal amount of a Security not redeemed to less than, $1,000; and provided further that so long as the Securities are listed on any national securities exchange (as such term is defined in the Exchange Act), such selection shall be made by the Trustee in accordance with the provisions of such exchange. SECTION 1018. [Intentionally Omitted.] SECTION 1019. [Intentionally Omitted.] SECTION 1020. [Intentionally Omitted.] SECTION 1021. [Intentionally Omitted.] SECTION 1022. [Intentionally Omitted.] SECTION 1023. [Intentionally Omitted.] SECTION 1024. [Intentionally Omitted.] SECTION 1025. [Intentionally Omitted.] SECTION 1026. [Intentionally Omitted.] SECTION 1027. [Intentionally Omitted.] ARTICLE ELEVENthe
Appears in 1 contract
Limitation on Asset Sales. Subject The Company shall not, and shall not permit any of its Subsidiaries to, consummate an Asset Sale unless: (I) an amount equal to and as permitted the Net Cash Proceeds therefrom is (i) in the case of an Asset Sale by the terms Company in excess of this Indenture $5,000,000, deposited in the Construction Disbursement Account or treated as Remaining Amounts pursuant to Section 4.22, or (ii) with respect to an Asset Sale by the Company shall or any of its Subsidiaries after the Phase II Completion Date, used for Capital Expenditures in a Related Business within 180 days after the date of such Asset Sale; provided that (a) prior to the payment in full of the Notes, the aggregate amount does not make exceed $10,000,000, (b) in the case of any Asset Sale or series of its properties unless (a) the consideration received in the related Asset Sale is equal to Fair Market Value; (b) the proceeds therefrom consist of Sales, at least 85% cash and/or of the value of the consideration for such Asset Sales consists of cash, Cash Equivalents; Equivalents or any combination thereof, and (c) unless the value of consideration received from each Asset Sale is not less than the fair market value of the Property subject to such Asset Sale; or (II) such Asset Sale is a part of the Transaction on the Issue Date. Notwithstanding the foregoing limitations on Asset Sales and restrictions on the use of Net Cash Proceeds therefrom (other than clause (c) above):
(A) [INTENTIONALLY OMITTED];
(B) the Company and its Subsidiaries may engage in Asset Sales in the ordinary course of business, including, without limitation, in connection with a financing secured by a pledge or assignment of Inventory or Receivables;
(C) the Company and its Subsidiaries may engage in Asset Sales not otherwise expressly permitted in clauses (A), (B) or (D) through (H) of this Section 4.20, provided hereinthat the aggregate proceeds from all such Asset Sales do not exceed $5,000,000 in any twelve-month period;
(D) the Company and its Subsidiaries may engage in Asset Sales in accordance with Section 5.2;
(E) the Company and its Subsidiaries may sell, assign, lease, license, transfer, abandon or otherwise dispose of (a) damaged, worn out, unserviceable or other obsolete Property in the ordinary course of business or (b) other Property no longer necessary for the proper conduct of their business;
(F) the Company and its Subsidiaries may convey, sell, transfer or otherwise dispose of crude oil and refined products in the ordinary course of business;
(G) [INTENTIONALLY OMITTED]; and
(H) the Company may transfer the Port Facility Assets in connection with the Port Commission Bond Financing, or the Tank Storage Facility in connection with the Tank Storage Debt, or the Substation Assets in connection with the financing thereof, or in each case any renewal, refunding or refinancing thereof. Unless otherwise required by the foregoing clauses (A) through (H), the proceeds of any Asset Sale permitted thereby shall be used by the Company or its Subsidiaries for purposes not otherwise prohibited by this Indenture. For the purpose of determining compliance with this Section 4.20 with respect to the application or use of the Net Cash Proceeds of such any Asset Sale shall be: (i) applied in the manner described in the following paragraph; or (ii) retained consummated by the Company or any Subsidiary of the Company, if such Net Cash Proceeds would be eligible for application or use under or pursuant to apply to more than one of the payment on its Securities when due. On categories of application or before the 180th day after the date on which the Company consummates the relevant Asset Sale and subject to and as use permitted by the terms of under this IndentureSection 4.20, the Company shall have the right to determine in its sole discretion the eligible category or categories of application or use pursuant to which all or any portion of such Net Cash Proceeds shall be applied or used. Notwithstanding any exception from the limitations on Asset Sales and restrictions on the use of Net Cash Proceeds therefrom (other than the exception set forth in clause (D) above), the Company shall not sell the Delayed Coking Unit, the Fluid Catalytic Cracking Unit or the Crude Unit unless the Net Cash Proceeds from such Asset Sale (other than amounts that are deposited in the Company has determined to retain Construction Disbursement Account pursuant to clause (ii) of the preceding paragraph) to make either (a) an offer to purchase (the "Asset Sale Offer") from all holders of Securities up to a maximum principal amount (expressed as a multiple of $1,000) of Securities equal to such Net Cash Proceeds at a purchase price equal to 100% of the principal amount thereof plus accrued and unpaid interest thereon, if any, to the date of purchase or (b) a Permitted Investment; provided, that the Company shall not be required to make any Asset Sale Offer if the Net Cash Proceeds of all Asset Sales that are not used to make a Permitted Investment within 180 days, do not exceed $5 million. Each Asset Sale Offer shall remain open for a period of at least 20 business days. If the Asset Sale Offer is more than fully subscribed to by the Holders of the Securities, the particular Securities to be accepted shall be selected by such method as the Trustee shall deem fair and appropriate and which may provide for the selection of portions of the principal of Securities; provided, however, that no such partial acceptance shall reduce the portion of the principal amount of a Security not redeemed to less than, $1,000; and provided further that so long as the Securities are listed on any national securities exchange (as such term is defined in the Exchange Act), such selection shall be made by the Trustee in accordance with the provisions of such exchange. SECTION 1018. [Intentionally OmittedSection 4.22.] SECTION 1019. [Intentionally Omitted.] SECTION 1020. [Intentionally Omitted.] SECTION 1021. [Intentionally Omitted.] SECTION 1022. [Intentionally Omitted.] SECTION 1023. [Intentionally Omitted.] SECTION 1024. [Intentionally Omitted.] SECTION 1025. [Intentionally Omitted.] SECTION 1026. [Intentionally Omitted.] SECTION 1027. [Intentionally Omitted.] ARTICLE ELEVEN
Appears in 1 contract
Limitation on Asset Sales. Subject to (a) The Company will not, and as permitted by the terms of this Indenture the Company shall will not permit any Restricted Subsidiary to, make any Asset Sale of its properties unless (ai) the Company or such Restricted Subsidiary, as the case may be, receives consideration received in at the Asset Sale is equal to Fair Market Value; (b) the proceeds therefrom consist of at least 85% cash and/or Cash Equivalents; and (c) unless otherwise expressly provided herein, the Net Cash Proceeds time of such Asset Sale shall be: at least equal to the fair market value (ias evidenced by a resolution of the Board of Directors set forth in an Officers' Certificate delivered to the Trustee) applied of the assets or other property sold or disposed of in the manner described in the following paragraph; or Asset Sale, and (ii) retained at least 75% of such consideration is in the form of cash or Cash Equivalents; provided that for purposes of this covenant "cash" shall include the amount of any liabilities (other than liabilities that are by their terms subordinated to the Notes or any Subsidiary Guarantee) of the Company or such Restricted Subsidiary (as shown on the Company's or such Restricted Subsidiary's most recent balance sheet or in the notes thereto) that are assumed by the Company to apply transferee of any such assets 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 payment extent that such assumption is effected on its Securities when due. On or before the 180th day after the date on a basis under which there is no further recourse to the Company consummates the relevant or any of its Restricted Subsidiaries with respect to such liabilities.
(b) Within 360 days after any Asset Sale and subject to and as permitted by the terms of this IndentureSale, the Company shall use all of may elect to apply the Net Cash Proceeds from such Asset Sale to (other than amounts that i) permanently reduce any Senior Debt of the Company has determined to retain pursuant to clause Company, and/or (ii) make an investment in, or acquire assets directly related to, the television broadcasting business. Pending the final application of any such Net Proceeds, the Company may temporarily reduce Senior Bank Debt of the preceding paragraphCompany or temporarily invest such Net Proceeds in any manner permitted by this Indenture. Any Net Proceeds from an Asset Sale not applied or invested as provided in the first sentence of this paragraph within 360 days of such Asset Sale will be deemed to constitute "Excess Proceeds."
(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 $5,000,000, the Company shall, if and to make either (a) the extent permitted by the agreements governing any Senior Debt of the Company and the Existing Notes Indenture as in existence on the Issue Date, commence an offer to purchase the maximum principal amount of Notes and other Indebtedness of the Company that ranks pari passu in right of payment with the Notes (to the extent required by the instrument governing such other Indebtedness) that may be purchased out of the Excess Proceeds (an "Asset Sale Offer") from ); provided that prior to making any such Asset Sale Offer the Company may, to the extent required pursuant to the Existing Notes Indentures as in existence on the Issue Date, use all holders or a portion of Securities up such Excess Proceeds to a maximum redeem Existing Notes. Any Notes and other Indebtedness to be purchased pursuant to an Asset Sale Offer shall be purchased pro rata based on the aggregate principal amount (expressed as a multiple of $1,000) of Securities equal to Notes and such Net Cash Proceeds other Indebtedness outstanding and all Notes shall be purchased at a purchase an offer price in cash in an amount equal to 100% of the principal amount thereof thereof, plus accrued and unpaid interest thereonto the date of purchase. To the extent that any Excess Proceeds remain after completion of an Asset Sale Offer, if anythe Company may use the remaining amount for general corporate purposes. In the event that the Company is prohibited under the terms of any agreement governing outstanding Senior Debt of the Company from repurchasing Notes with Excess Proceeds pursuant to an Asset Sale Offer as set forth in the first sentence of this Section 4.14(c), the Company shall promptly use all Excess Proceeds to permanently reduce such outstanding Senior Debt of the Company.
(d) Within 30 days following the occurrence of any Asset Sale Offer Trigger Date, the 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 or (b) a Permitted Investment; provided, that the Company shall not be required to make any "Asset Sale Offer if 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 Net Cash Proceeds date such notice is mailed, (ii) the amount of all accrued and unpaid interest as of the Asset Sales Sale Offer Purchase Date, (iii) that are any Note not used tendered will continue to make a Permitted Investment within 180 daysaccrue interest, do not exceed $5 million. Each (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 remain open for a period of at least 20 business days. If cease to accrue interest after the Asset Sale Offer is more 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 $1,000 or integral multiples thereof, (vi) that Holders will be entitled to withdraw their election to tender Notes if the Paying Agent receives, not later than fully subscribed to by the Holders 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 SecuritiesHolder, the particular Securities to be accepted shall be selected by such method as the Trustee shall deem fair and appropriate and which may provide for the selection of portions of the principal of Securities; provided, however, that no such partial acceptance shall reduce the portion of the principal amount of Notes delivered for purchase, and a Security not redeemed statement that such Holder is withdrawing his election to less than, $1,000have 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 further that so long as the Securities are listed on any national securities exchange (as such term is defined only Notes in the Exchange Act), such selection shall a principal amount of $1,000 or integral multiples thereof will be made by the Trustee accepted for payment in accordance with the provisions of such exchange. SECTION 1018. [Intentionally Omittedpart.] SECTION 1019. [Intentionally Omitted.] SECTION 1020. [Intentionally Omitted.] SECTION 1021. [Intentionally Omitted.] SECTION 1022. [Intentionally Omitted.] SECTION 1023. [Intentionally Omitted.] SECTION 1024. [Intentionally Omitted.] SECTION 1025. [Intentionally Omitted.] SECTION 1026. [Intentionally Omitted.] SECTION 1027. [Intentionally Omitted.] ARTICLE ELEVEN
Appears in 1 contract
Limitation on Asset Sales. Subject to and as permitted by the terms of this Indenture the The Company shall not, and shall not permit any Restricted Subsidiary to, make any Asset Sale of its properties unless (ai) the Company or such Restricted Subsidiary receives consideration received in at the Asset Sale is equal to Fair Market Value; (b) the proceeds therefrom consist of at least 85% cash and/or Cash Equivalents; and (c) unless otherwise expressly provided herein, the Net Cash Proceeds time of such Asset Sale shall be: (i) applied at least equal to the fair market value of the assets subject to such Asset Sale as determined in good faith by the manner described in the following paragraph; or Board of Directors, (ii) retained by the Company to apply to the payment on its Securities when due. On or before the 180th day after the date on which the Company consummates the relevant Asset Sale and subject to and as permitted by the terms of this Indenture, the Company shall use all at least 80% of the Net Cash Proceeds from consideration for such Asset Sale (other than amounts consideration consisting of assets that will be used in the business of the Company has determined or its Subsidiaries) is in the form of Permitted Proceeds, and (iii) within 12 months of such Asset Sale, the Net Proceeds thereof are (a) invested in assets related to retain the business of the Company or its Restricted Subsidiaries as conducted on the Closing Date, (b) applied to repay Indebtedness under Purchase Money Obligations incurred in connection with the asset so sold or (c) to the extent not used as provided in clauses (a) or (b), applied to make an offer to purchase Notes as described below (an "Excess Proceeds Offer"), provided, however, that if the amount of Net Proceeds from any Asset Sale not invested pursuant to clause (iia) above is less than $5.0 million, the Company shall not be required to repay indebtedness pursuant to clause (b) or to make an offer pursuant to clause (c). Pending application of such Net Proceeds in accordance with the provisions of this Section 4.10, the Net Proceeds of an Asset Sale may be applied to reduce amounts outstanding under the Revolving Credit Facility, subject to relending in accordance with the terms thereof. The amount of Net Proceeds not invested or applied as set forth in the preceding paragraph) to make either clauses (a) and (b) constitutes "Excess Proceeds." If the Company elects, or becomes obligated to make an Excess Proceeds Offer, the Company shall offer to purchase Notes having an aggregate principal amount equal to the Excess Proceeds (the "Asset Sale OfferPurchase Amount") from all holders of Securities up to a maximum principal amount (expressed as a multiple of $1,000) of Securities equal to such Net Cash Proceeds ), at a purchase price equal to 100% of the aggregate principal amount thereof thereof, plus accrued and unpaid interest thereoninterest, if any, to the date purchase date. The Company must commence such Excess Proceeds Offer not later than 60 days after the expiration of the 12-month period following the Asset Sale that produced Excess Proceeds. If the aggregate purchase or (b) a Permitted Investment; providedprice for the Notes tendered pursuant to the Excess Proceeds Offer is less than the Excess Proceeds, that the Company shall not be required to make any Asset Sale Offer if and its Subsidiaries may use the Net Cash portion of the Excess Proceeds remaining after payment of all Asset Sales that are not used to make a Permitted Investment within 180 days, do not exceed $5 millionsuch purchase price for general corporate purposes. Each Asset Sale The Excess Proceeds Offer shall remain open for a period of at least 20 business daysBusiness Days and no longer, unless a longer period is required by law (the "Excess Proceeds Offer Period"). If Promptly after the Asset Sale Offer is more than fully subscribed to by the Holders termination of the SecuritiesExcess Proceeds Offer Period (the "Excess Proceeds Payment Date"), the particular Securities Company shall purchase and mail or deliver payment for the Purchase Amount for the Notes or portions thereof tendered, pro rata or by such other method as may be required by law, or, if less than the Purchase Amount has been tendered, all Notes tendered pursuant to the Excess Proceeds Offer. The principal amount of Notes to be accepted shall purchased pursuant to an Excess Proceeds Offer may be selected reduced by such method as the Trustee shall deem fair and appropriate and which may provide for the selection of portions of the principal of Securities; provided, however, that no such partial acceptance shall reduce the portion of the principal amount of Notes acquired by the Company through purchase or redemption (other than pursuant to a Security Change of Control Offer) subsequent to the date of the Asset Sale and surrendered to the Trustee for cancellation. The Excess Proceeds Offer shall be conducted in compliance with all applicable laws, including (without limitation), Regulation 14E of the Exchange Act and the rules thereunder and all other applicable Federal and state securities laws. The Company shall not, and shall not redeemed permit any of its Subsidiaries to, create or suffer to less thanexist or become effective any restriction that would impair the ability of the Company to make an Excess Proceeds Offer upon an Asset Sale or, if such Excess Proceeds Offer is made, to pay for the Notes tendered for purchase. The Company shall, no later than 30 days following the expiration of the 12-month period following the Asset Sale that produced Excess Proceeds, commence the Excess Proceeds Offer by mailing to the Trustee and each Holder, at such Holder's last registered address, a notice, which shall govern the terms of the Excess Proceeds Offer, and shall state:
(1) that the Excess Proceeds Offer is being made pursuant to this Section 4.10, the principal amount of Notes which shall be accepted for payment and that all Notes validly tendered shall be accepted for payment on a pro rata basis;
(2) the purchase price and the date of purchase;
(3) that any Notes not tendered or accepted for payment pursuant to the Excess Proceeds Offer shall continue to accrue interest;
(4) that, unless the Company defaults in the payment of the purchase price with respect to any Notes tendered, Notes accepted for payment pursuant to the Excess Proceeds Offer shall cease to accrue interest after the Excess Proceeds Payment Date;
(5) that Holders electing to have Notes purchased pursuant to an Excess Proceeds Offer shall be required to surrender their Notes, with the form entitled "Option of Holder to Elect Purchase" on the reverse of the Note completed, to the Company prior to the close of business on the third Business Day immediately preceding the Excess Proceeds Payment Date;
(6) that Holders shall be entitled to withdraw their election if the Company receives, not later than the close of business on the second Business Day preceding the Excess Proceeds Payment Date, a telegram, telex, facsimile transmission or letter setting forth the name of the Holder, the principal amount of Notes the Holder delivered for purchase and a statement that such Holder is withdrawing his election to have such Notes purchased;
(7) that Holders whose Notes are purchased only in part shall be issued Notes representing the unpurchased portion of the Notes surrendered; provided that each Note purchased and each new Note issued shall be in principal amount of $1,0001,000 or whole multiples thereof; and
(8) the instructions that Holders must follow in order to tender their Notes. On or before the Excess Proceeds Payment Date, the Company shall (i) accept for payment on a pro rata basis the Notes or portions thereof tendered pursuant to the Excess Proceeds Offer, (ii) deposit with the Paying Agent money sufficient to pay the purchase price of all Notes or portions thereof so accepted and provided further (iii) deliver to the Trustee the Notes so accepted, together with an Officers' Certificate stating that the Notes or portions thereof tendered to the Company are accepted for payment. The Paying Agent shall promptly mail to each Holder of Notes so long accepted payment in an amount equal to the purchase price of such Notes, and the Trustee shall promptly authenticate and mail to such Holders new Notes equal in principal amount to any unpurchased portion of the Note surrendered. The Company shall make a public announcement of the results of the Excess Proceeds Offer as soon as practicable after the Excess Proceeds Payment Date. For the purposes of this Section 4.10, the Trustee shall act as the Securities are listed on any national securities exchange (as such term is defined in the Exchange Act), such selection shall be made by the Trustee in accordance with the provisions of such exchange. SECTION 1018. [Intentionally OmittedPaying Agent.] SECTION 1019. [Intentionally Omitted.] SECTION 1020. [Intentionally Omitted.] SECTION 1021. [Intentionally Omitted.] SECTION 1022. [Intentionally Omitted.] SECTION 1023. [Intentionally Omitted.] SECTION 1024. [Intentionally Omitted.] SECTION 1025. [Intentionally Omitted.] SECTION 1026. [Intentionally Omitted.] SECTION 1027. [Intentionally Omitted.] ARTICLE ELEVEN
Appears in 1 contract
Samples: Indenture (Terex Corp)
Limitation on Asset Sales. Subject to and as permitted by the terms of this Indenture the The Company shall not, and shall not make permit any of its Restricted Subsidiaries to, directly or indirectly, consummate any Asset Sale that results in Net Proceeds in excess of its properties $1.5 million (including the sale of any of the Capital Stock of any Restricted Subsidiary) unless (a) the consideration received in the such Asset Sale is equal to Fair Market Value; (b) for fair market value as determined by the proceeds therefrom consist Board of at least 85% cash and/or Cash Equivalents; Directors acting reasonably and (c) unless otherwise expressly provided herein, in good faith and the Company or any Restricted Subsidiary applies the Net Cash Proceeds of such Asset Sale shall be: (i) applied in the manner described in the following paragraph; or (ii) retained by the Company to apply to the payment on its Securities when due. On or before the 180th day after the date on which the Company consummates the relevant Asset Sale and subject to and as permitted by the terms of this Indenture, the Company shall use all of the Net Cash Proceeds from such Asset Sale to one or more of the following in such combination as it shall choose: (a) an investment in assets (including Capital Stock or other than amounts that securities purchased in connection with the acquisition of Capital Stock or property of another Person) used or useful in businesses similar or ancillary to the business of the Company has determined or its Restricted Subsidiaries as conducted at the time of such Asset Sale; PROVIDED that such investment occurs on or prior to retain pursuant the 366th day following the date of such Asset Sale (the "Asset Sale Payment Date"); (b) a Net Proceeds Offer (as defined below) expiring on or prior to the Asset Sale Payment Date; or (c) in the case of an Asset Sale by the Company, the purchase, redemption or other prepayment or repayment of outstanding Senior Indebtedness on or prior to the Asset Sale Payment Date and, in the case of an Asset Sale by any Restricted Subsidiary, the purchase, redemption or other prepayment or repayment of any Indebtedness of such Restricted Subsidiary on or prior to the Asset Sale Payment Date; PROVIDED that any prepayment or repayment of amounts outstanding under the Credit Agreement in excess of $20.0 million in the aggregate after the Issue Date shall be a permanent reduction in the commitment thereunder in the amount of such excess. Notwithstanding the foregoing, in the event such Net Proceeds, after giving effect to any investment or payment permitted by clause (iia) or (c) above (the "Excess Proceeds"), are less than $15.0 million, the application of the Excess Proceeds to a Net Proceeds Offer may be deferred until such time as the Excess Proceeds, plus the aggregate amount of any subsequent Net Proceeds not otherwise invested or applied to repay amounts outstanding under the Senior Indebtedness of the Company or under the Indebtedness of any Restricted Subsidiary, as the case may be, as permitted by clause (a) or (c) above, are at least equal to $15.0 million, at which time the Company shall apply all the Excess Proceeds to a Net Proceeds Offer. Upon completion of a Net Proceeds Offer, the amount of Excess Proceeds shall be reset at zero. For purposes of clause (b) of the preceding paragraph) , the Company will apply that portion of the Net Proceeds of the Asset Sale required to make either a tender offer in accordance with applicable law (a) an offer to purchase (the a "Asset Sale Net Proceeds Offer") from all holders of to repurchase Securities up to a maximum principal amount (expressed as a multiple of $1,000) of Securities equal to such Net Cash Proceeds at a purchase price equal to not less than 100% of the principal amount thereof plus accrued and unpaid interest thereon, if any, to the date of purchase or repurchase, which date shall be no earlier than 30 days nor later than 45 days after the date of mailing of the Net Proceeds Offer (b) a Permitted Investment; providedthe "Net Proceeds Payment Date"). The Company may, that at its option, receive credit against any Net Proceeds Offer for the principal amount of Securities acquired by the Company or any of its Subsidiaries and surrendered for cancellation within six months prior to or at any time after the date of such Asset Sale relating to such Net Proceeds Offer and before the Net Proceeds Payment Date. Any Net Proceeds Offer will be made by the Company only if and to the extent permitted under, and subject to prior compliance with, the terms of any agreement governing Senior Indebtedness of the Company or Indebtedness of a Restricted Subsidiary, as the case may be. If the Company commences a Net Proceeds Offer and securities of the Company ranking PARI PASSU in right of payment with the Securities are outstanding at the commencement of such Net Proceeds Offer and the terms of such securities provide that a similar offer must be made with respect thereto, then the Net Proceeds Offer for the Securities shall be made concurrently with such other offer and securities of each issue will be accepted PRO RATA in proportion to the aggregate principal amount of securities of each issue which the holders of securities of such issue elect to have purchased. After the last date on which Holders are permitted to tender their Securities in a Net Proceeds Offer, the Company will not be required restricted under this Section 4.12 as to its use of any remaining Net Proceeds available to make any Asset Sale such Net Proceeds Offer if the Net Cash Proceeds of all Asset Sales that are but not used to redeem Securities pursuant hereto. Notwithstanding the foregoing, if, at the time of an Asset Sale by the Company or any Restricted Subsidiary, the Company's Fixed Charge Coverage Ratio for the four fiscal quarter period ending immediately prior to the date of such Asset Sale would have been at least 2.75 to 1, determined on a PRO forma basis as if such Asset Sale occurred at the beginning of such four-quarter period, then any Net Proceeds received will not be subject to this Section 4.12. At such time as the Company determines to make a Permitted Investment within 180 daysNet Proceeds Offer, do not exceed $5 millionit shall so notify the Trustee in writing. Each Asset Sale Within 15 days thereafter, it shall mail or cause the Trustee to mail (in the Company's name and at its expense) notice of a Net Proceeds Offer to the Holders of the Securities at their last registered addresses with a copy to the Trustee and the Paying Agent. The Net Proceeds Offer shall remain open from the time of mailing for a period of at least 20 Business Days and until the close of business dayson the third Business Day prior to the Net Proceeds Payment Date. If The notice shall contain all instructions and materials necessary to enable such Holders to tender Securities pursuant to the Asset Sale Net Proceeds Offer. The notice, which shall govern the terms of the Net Proceeds Offer, shall state:
(i) that the Net Proceeds Offer is more being made pursuant to this Section 4.12;
(ii) the purchase price (including the amount of accrued and unpaid interest, if any) for each Security and the Net Proceeds Payment Date;
(iii) that any Security not tendered or accepted for payment will continue to accrue interest in accordance with the terms thereof;
(iv) that any Security accepted for payment pursuant to the Net Proceeds Offer shall cease to accrue interest after the Net Proceeds Payment Date unless the Company shall fail to make payment therefor;
(v) that Holders electing to have Securities purchased pursuant to a Net Proceeds Offer will be required to surrender their Securities to the Paying Agent at the address specified in the notice prior to 5:00 p.m., New York City time, on the third Business Day immediately preceding the Net Proceeds Payment Date and must complete any form letter of transmittal proposed by the Company and acceptable to the Trustee and the Paying Agent;
(vi) that Holders will be entitled to withdraw their election if the Paying Agent receives, not later than 5:00 p.m., New York City time, on the third Business Day immediately preceding the Net Proceeds Payment Date, a telex or facsimile transmission (confirmed by overnight delivery of the original thereof) or letter setting forth the name of the Holder, the principal amount of Securities the Holder delivered for purchase, the Security certificate number (if any) and a statement that such Holder is withdrawing his election to have such Securities purchased;
(vii) that if Securities in a principal amount in excess of the Holders' PRO RATA share of the Net Proceeds are tendered pursuant to a Net Proceeds Offer, the Company shall purchase Securities on a PRO RATA basis among the Securities tendered (with such adjustments as may be deemed appropriate by the Company so that only Securities in denominations of $1,000 or integral multiples of $1,000 shall be acquired);
(viii) that Holders whose Securities are purchased only in part will be issued new Securities equal in principal amount to the unpurchased portion of the Securities surrendered; and
(ix) the instructions that Holders must follow in order to tender their Securities. On or before the Net Proceeds Payment Date, the Company shall (i) accept for payment, on a PRO RATA basis among the Securities, Securities or portions thereof tendered pursuant to the Net Proceeds Offer, (ii) deposit with the Paying Agent money, in immediately available funds, in an amount sufficient to pay the purchase price of all Securities or portions thereof so tendered and accepted and (iii) deliver to the Paying Agent the Securities so accepted together with an Officers' Certificate setting forth the Securities or portions thereof tendered to and accepted for payment by the Company. The Paying Agent shall promptly mail or deliver to Holders of Securities so accepted payment in an amount equal to the purchase price, and the Trustee shall promptly authenticate and mail or deliver to such Holders a new Security equal in principal amount to any unpurchased portion of the Security surrendered. Any Securities 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 Net Proceeds Offer on the first Business Day following the Net Proceeds Payment Date. To the extent the Holders' PRO RATA portion of a Net Proceeds Offer is not fully subscribed to by such Holders, the Company may retain such unutilized portion of the Net Proceeds. The Paying Agent shall promptly deliver to the Company the balance of any moneys held by the Paying Agent after payment to the Holders of Securities as aforesaid. The Company shall comply, to the Securitiesextent applicable, with the particular Securities to be accepted shall be selected by such method as the Trustee shall deem fair and appropriate and which may provide for the selection requirements of portions Section 14(e) of the principal of Securities; provided, however, that no such partial acceptance shall reduce the portion of the principal amount of a Security not redeemed to less than, $1,000; Exchange Act and provided further that so long as the Securities are listed on any national other securities exchange laws or regulations (as such term is defined in including Rule 14e-1 under the Exchange Act), such selection shall be made by ) in connection with the Trustee in accordance 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 such exchange. SECTION 1018. [Intentionally Omittedthis 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 this Section 4.12 by virtue thereof.] SECTION 1019. [Intentionally Omitted.] SECTION 1020. [Intentionally Omitted.] SECTION 1021. [Intentionally Omitted.] SECTION 1022. [Intentionally Omitted.] SECTION 1023. [Intentionally Omitted.] SECTION 1024. [Intentionally Omitted.] SECTION 1025. [Intentionally Omitted.] SECTION 1026. [Intentionally Omitted.] SECTION 1027. [Intentionally Omitted.] ARTICLE ELEVEN
Appears in 1 contract
Samples: Indenture (Big Flower Holdings Inc/)
Limitation on Asset Sales. Subject to Holdings shall not, and as permitted by the terms of this Indenture the Company shall not make permit any of its Restricted Subsidiaries to, consummate an Asset Sale of its properties unless (ai) Holdings or the applicable Restricted Subsidiary, as the case may be, receives consideration received in at the Asset Sale is equal to Fair Market Value; (b) the proceeds therefrom consist of at least 85% cash and/or Cash Equivalents; and (c) unless otherwise expressly provided herein, the Net Cash Proceeds time of such Asset Sale shall be: at least equal to the fair market value of the assets sold or otherwise disposed of (i) applied as determined in good faith by management of Holdings or, if such Asset Sale involves consideration in excess of $10,000,000, by the manner described in the following paragraph; or board of directors of Holdings, as evidenced by a board resolution), (ii) retained at least 75% of the consideration received by Holdings or such 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) upon the consummation of an Asset Sale, Holdings applies, or causes such Restricted Subsidiary to apply, such Net Cash Proceeds within 180 days of receipt thereof either (A) to repay any Indebtedness of a Restricted Subsidiary of Holdings (and, to the extent such Indebtedness relates to principal under a revolving credit or similar facility, to obtain a corresponding reduction in the commitments thereunder, except that the Company to apply to the payment on its Securities when due. On or before the 180th day after the date on which the Company consummates the relevant Asset Sale and subject to and as permitted by the terms of this Indenture, the Company shall use all of may temporarily repay Senior Indebtedness using the Net Cash Proceeds from such Asset Sale (other than amounts that the Company has determined and thereafter use such funds to retain reinvest pursuant to clause (iiB) below within the period set forth therein without having to obtain a corresponding reduction in 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 preceding paragraph) to make either (a) an offer to purchase (the "Asset Sale Offer") from all holders date of Securities up to a maximum principal amount (expressed as a multiple receipt of $1,000) of Securities equal to such Net Cash Proceeds or (C) to purchase Securities tendered to Holdings for purchase at a purchase price equal to 100% of the principal amount thereof plus accrued and unpaid interest thereon, if any, to the date of purchase or pursuant to an offer to purchase made by Holdings as set forth below (b) a Permitted Investment; provided, that the Company shall not be required to make any Asset Sale Offer if the "Net Cash Proceeds of all Asset Sales that are not used to make a Permitted Investment within 180 days, do not exceed $5 million. Each Asset Sale Offer shall remain open for a period of at least 20 business days. If the Asset Sale Offer is more than fully subscribed to by the Holders of the Securities, the particular Securities to be accepted shall be selected by such method as the Trustee shall deem fair and appropriate and which may provide for the selection of portions of the principal of SecuritiesOffer"); provided, however, that no such partial acceptance shall reduce Holdings may defer making a Net Proceeds Offer until the portion of aggregate Net Cash Proceeds from Asset Sales not otherwise applied in accordance with this Section 4.07 equal or exceed $15,000,000. To the extent that the aggregate principal amount of a Security Securities tendered pursuant to any Net Proceeds Offer is less than the amount of Net Cash Proceeds subject to such Net Proceeds Offer, Holdings may use any remaining portion of such Net Cash Proceeds not redeemed required to less thanfund the repurchase of tendered Securities for any purposes otherwise permitted by this Indenture. Upon the consummation of any Net Proceeds Offer, $1,000; and provided further that so long as the Securities are listed on amount of Net Cash Proceeds subject to any national securities exchange (as future Net Proceeds Offer from the Asset Sales giving rise to such term is defined in Net Cash Proceeds shall be deemed to be zero. Holdings shall comply with the requirements of Rule 14e-1 under the Exchange Act), such selection shall be made by Act to the Trustee extent applicable in accordance connection with the provisions repurchase of such exchange. SECTION 1018. [Intentionally OmittedSecurities pursuant to a Net Proceeds Offer.] SECTION 1019. [Intentionally Omitted.] SECTION 1020. [Intentionally Omitted.] SECTION 1021. [Intentionally Omitted.] SECTION 1022. [Intentionally Omitted.] SECTION 1023. [Intentionally Omitted.] SECTION 1024. [Intentionally Omitted.] SECTION 1025. [Intentionally Omitted.] SECTION 1026. [Intentionally Omitted.] SECTION 1027. [Intentionally Omitted.] ARTICLE ELEVEN
Appears in 1 contract
Samples: Indenture (WTNH Broadcasting Inc)
Limitation on Asset Sales. Subject to The Issuer and as permitted by the terms of this Indenture the Company Guarantors shall not make any Asset Sale of its properties unless other than a Xxxxxx Asset Sale; provided that the following conditions are met:
(a) On or prior to December 31, 2022, the Issuer and the Guarantors may not make any Xxxxxx Asset Sale. The Issuer and the Guarantors shall use commercially reasonable efforts to remediate, relocate or move the Xxxxxx Plant such that (i) the operations of the Xxxxxx Plant are in compliance in all material respects with the Applicable Laws with respect to noise pollution and (ii) the Xxxxxx Plant is operational as soon as practicable thereafter.
(b) Following December 31, 2022:
(i) if the Xxxxxx Plant is operational, then the Issuer and the Guarantors may make any Xxxxxx Asset Sale; provided that the disposition of such assets is not reasonably expected to have the effect of reducing the average revenues under the Xxxxxx PPA and any Net Asset Sale Proceeds received are deposited in accordance with Section 3.2 of the Depositary Agreement; and
(ii) if the Xxxxxx Plant is not operational, then the Issuer and the Guarantors may make any Xxxxxx Asset Sale; provided that the Issuer and each Guarantor shall apply 100% of any such Net Asset Sale Proceeds to mandatorily redeem all or a portion of the Notes in accordance with Section 5.9 hereof. provided that with respect to any Xxxxxx Asset Sale pursuant to clause (b)(ii): (i) the consideration received in the Asset Sale is equal to shall be at least Fair Market Value; , (biii) at least 75% of the consideration received is in the form of cash or Cash Equivalents, (iv) the proceeds therefrom consist terms of at least 85% cash and/or Cash Equivalents; such disposition(s) are approved by the Independent Director of the Board of Directors of the Issuer or the Guarantor, as applicable, and are on arm’s length commercial terms, (v) no Event of Default shall have occurred and be continuing or occur as a result of such disposal, (vi) such disposition(s) shall not be to any Affiliates of the Issuer, Gramercy/Gemcorp Entities or Integra and (cvii) unless otherwise expressly provided hereinprior to entry into any agreement for such disposition(s) the Issuer or any Guarantor, the Net Cash Proceeds of such Asset Sale shall be: (i) applied in the manner described in the following paragraph; or (ii) retained by the Company to apply as applicable, have delivered to the payment on Trustee an Officer’s Certificate describing the nature of any such Xxxxxx Asset Sale, its Securities when due. On commercial terms and stating that the Issuer or before the 180th day after the date on which the Company consummates the relevant Asset Sale and subject to and any Guarantor, as permitted by applicable, have complied with the terms of this Indenture, the Company shall use all of the Net Cash Proceeds from such Asset Sale (other than amounts that the Company has determined to retain pursuant to clause (ii) of the preceding paragraph) to make either (a) an offer to purchase (the "Asset Sale Offer") from all holders of Securities up to a maximum principal amount (expressed as a multiple of $1,000) of Securities equal to such Net Cash Proceeds at a purchase price equal to 100% of the principal amount thereof plus accrued and unpaid interest thereon, if any, to the date of purchase or (b) a Permitted Investment; provided, that the Company shall not be required to make any Asset Sale Offer if the Net Cash Proceeds of all Asset Sales that are not used to make a Permitted Investment within 180 days, do not exceed $5 million. Each Asset Sale Offer shall remain open for a period of at least 20 business days. If the Asset Sale Offer is more than fully subscribed to by the Holders of the Securities, the particular Securities to be accepted shall be selected by such method as the Trustee shall deem fair and appropriate and which may provide for the selection of portions of the principal of Securities; provided, however, that no such partial acceptance shall reduce the portion of the principal amount of a Security not redeemed to less than, $1,000; and provided further that so long as the Securities are listed on any national securities exchange (as such term is defined in the Exchange Act), such selection shall be made by the Trustee in accordance with the provisions of such exchange. SECTION 1018. [Intentionally Omitted.] SECTION 1019. [Intentionally Omitted.] SECTION 1020. [Intentionally Omitted.] SECTION 1021. [Intentionally Omitted.] SECTION 1022. [Intentionally Omitted.] SECTION 1023. [Intentionally Omitted.] SECTION 1024. [Intentionally Omitted.] SECTION 1025. [Intentionally Omitted.] SECTION 1026. [Intentionally Omitted.] SECTION 1027. [Intentionally Omitted.] ARTICLE ELEVEN
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Samples: Indenture