Limitation on Sales of Assets and Subsidiary Stock. (a) The Company shall not, and shall not permit any Restricted Subsidiary to, directly or indirectly, consummate any Asset Disposition unless (i) the Company or such Restricted Subsidiary receives consideration at the time of such Asset Disposition at least equal to the fair market value (including the value of all non-cash consideration), as determined in good faith by the Board of Directors, of the shares and assets subject to such Asset Disposition and at least 75% of the consideration thereof received by the Company or such Restricted Subsidiary is in the form of cash or cash equivalents and (ii) an amount equal to 100% of the Net Available Cash from such Asset Disposition is applied by the Company (or such Restricted Subsidiary, as the case may be) (A) first, to the extent the Company elects in its sole discretion (or is ----- required by the terms of any Indebtedness), to prepay, repay, redeem or purchase Indebtedness (other than any Disqualified Stock) of the Company or of a Restricted Subsidiary (in each case other than Indebtedness owed to the Company or an Affiliate of the Company) within one year from the later of the date of such Asset Disposition or the receipt of such Net Available Cash; (B) second, to the extent of the balance of such Net Available Cash after ------ application in accordance with clause (A) of this Section 4.06(a), to the extent the Company elects in its sole discretion, to acquire Additional Assets within one year after the receipt of such Net Available Cash; (C) third, to the extent of the balance of such Net Available Cash after ----- application in accordance with clauses (A) and (B) of this Section 4.06(a), to make an offer to the holders of the Securities to purchase Securities pursuant to and subject to the conditions contained in Section 4.06(b); and (D) fourth, to the extent of the balance of such Net Available Cash after ------ application in accordance with clauses (A), (B) and (C) of this Section 4.06(a), for the general corporate and working capital purposes of the Company and its Restricted Subsidiaries; (a) except to the extent that the aggregate Net Available Cash from all Asset Dispositions occurring after the Issue Date which are not applied in accordance with this Section 4.06(a) (or with Section 11D(a) of the terms of the Exchangeable Preferred Stock) exceeds $5 million. Pending application of Net Available Cash pursuant to this Section 4.06, such Net Available Cash shall be invested in Permitted Investments.
Appears in 1 contract
Limitation on Sales of Assets and Subsidiary Stock. (a) The Company shall not, and shall not permit any Restricted Subsidiary to, directly or indirectly, consummate any Asset Disposition unless unless:
(i1) the Company or such Restricted Subsidiary receives consideration at the time of such Asset Disposition at least equal to the fair market value (including as to the value of all non-cash consideration), as determined in good faith by the Board of Directors, of the shares and assets subject to such Asset Disposition and Disposition;
(2) at least 75% of the consideration thereof received by the Company or such Restricted Subsidiary is in the form of cash or cash equivalents and equivalents; and
(ii3) an amount equal to 100% of the Net Available Cash from such Asset Disposition is applied by the Company (or such Restricted Subsidiary, as the case may be)):
(A) first, to the extent the Company elects in its sole discretion (or is ----- required by the terms of any IndebtednessSenior Indebtedness of the Company or a Subsidiary Guarantor), to prepay, repay, redeem or purchase Senior Indebtedness (other than any Disqualified Stock) of the Company or of a Restricted Subsidiary Guarantor (in each case other than Indebtedness owed to the Company or an Affiliate of the Company) within one year from the later of the date of such Asset Disposition or the receipt of such Net Available Cash;
(B) second, to the extent of the balance of such Net Available Cash after ------ application in accordance with clause (A) of this Section 4.06(a), to the extent the Company elects in its sole discretionelects, to acquire Additional Assets in each case within one year after from the later of the date of such Asset Disposition or the receipt of such Net Available Cash;; and
(C) third, to the extent of the balance of such Net Available Cash after ----- application in accordance with clauses (A) and (B) of this Section 4.06(a), to make an offer to the Holders (and to holders of other Senior Subordinated Indebtedness of the Securities Company or of a Subsidiary Guarantor designated by the Company) to purchase Securities (and such other Senior Subordinated Indebtedness) pursuant to and subject to the conditions contained in Section 4.06(b4.06(c); and
provided, however, that in connection with any prepayment, repayment or purchase of Indebtedness pursuant to clause (DA) fourthor (C) above, the Company or such Restricted Subsidiary shall permanently retire such Indebtedness and shall cause the related loan commitment (if any) to be permanently reduced in an amount equal to the extent principal amount so prepaid, repaid or purchased. Notwithstanding the foregoing provisions of this Section 4.06, the balance of such Company and the Restricted Subsidiaries will not be required to apply any Net Available Cash after ------ application in accordance with clauses (A), (B) and (C) of this Section 4.06(a), for the general corporate and working capital purposes of the Company and its Restricted Subsidiaries;
(a) except to the extent that the aggregate Net Available Cash from all Asset Dispositions occurring after the Issue Date which are is not applied in accordance with this Section 4.06(a) (or with Section 11D(a) of the terms of the Exchangeable Preferred Stock) exceeds $5 15.0 million. Pending application of Net Available Cash pursuant to this Section 4.064.06(a), such Net Available Cash shall be invested in Permitted InvestmentsTemporary Cash Investments or applied to temporarily reduce revolving credit indebtedness.
(b) For the purposes of this Section 4.06, the following are deemed to be cash or cash equivalents:
(1) the assumption of Indebtedness of the Company or of a Subsidiary Guarantor (other than Subordinated Obligations and other obligations in respect of Disqualified Stock of the Company) or any Restricted Subsidiary (other than obligations in respect of Disqualified Stock or Preferred Stock of a Subsidiary Guarantor) and the release of the Company or such Restricted Subsidiary from all liability on such Indebtedness in connection with such Asset Disposition; and
(2) securities received by the Company or any Restricted Subsidiary from the transferee that are promptly converted by the Company or such Restricted Subsidiary into cash, to the extent of the cash received in that conversion.
(c) In the event of an Asset Disposition that requires an offer to purchase Securities (and other Senior Subordinated Indebtedness of the Company or of a Subsidiary Guarantor) pursuant to Section (a)(3)(C) above, the Company shall purchase Securities tendered pursuant to an offer by the Company for the Securities (and such other Senior Subordinated Indebtedness) (the “Offer”) at a purchase price of 100% (or at a greater price, in the case of the Securities, in the discretion of the Company) of their principal amount (or, in the event such other Senior Subordinated Indebtedness was issued with original issue discount, 100% of the accreted value thereof) without premium, plus accrued but unpaid interest (or, in respect of such other Senior Subordinated Indebtedness, such lesser price, if any, as may be provided for by the terms of such Senior Subordinated Indebtedness) in accordance with the procedures (including prorating in the event of oversubscription) set forth in Section 4.06(d); provided that the procedures for making an offer to holders of other Senior Subordinated Indebtedness will be as provided for by the terms of such other Senior Subordinated Indebtedness. If the aggregate purchase price of the Indebtedness tendered pursuant to the Offer exceeds the Net Available Cash allotted to their purchase, the Company will select the Indebtedness to be purchased on a pro rata basis but in round denominations, which in the case of the Securities will be denominations of $2,000 principal amount or $1,000 multiples thereof. The Company shall not be required to make such an Offer if the Net Available Cash available therefor (after application of such proceeds as provided in clauses (a)(3)(A) and (a)(3)(B) of this Section 4.06 and after giving effect to any purchases of Securities by the Company made in the open market or otherwise occurring after the date of such Asset Disposition) is less than $10.0 million (which lesser amount shall be carried forward for purposes of determining whether such an Offer is required with respect to the Net Available Cash from any subsequent Asset Disposition). Upon completion of such an Offer, Net Available Cash will be deemed to be reduced by the aggregate amount of such Offer. If any Net Available Cash remains after the completion of any such Offer, the Company may use such Net Available Cash for any purpose not otherwise prohibited by the Indenture.
(d) (1) Promptly, and in any event within 10 days after the Company becomes obligated to make an Offer, the Company shall deliver to the Trustee and send, by first-class mail to each Holder, a written notice stating that the Holder may elect to have his Securities purchased by the Company either in whole or in part (subject to prorating as described in Section 4.06(c) in the event the Offer is oversubscribed) in denominations of $2,000 principal amount or $1,000 multiples thereof, at the applicable purchase price. The notice shall specify a purchase date not less than 30 days nor more than 60 days after the date of such notice (the “Purchase Date”) and shall contain such information concerning the business of the Company which the Company in good faith believes will enable such Holders to make an informed decision (which at a minimum will include (A) the most recently filed Annual Report on Form 10-K (including audited consolidated financial statements) of the Company, the most recent subsequently filed Quarterly Report on Form 10-Q and any Current Report on Form 8-K of the Company filed subsequent to such Quarterly Report, other than Current Reports describing Asset Dispositions otherwise described in the offering materials (or corresponding successor reports), (B) a description of material developments in the Company’s business subsequent to the date of the latest of such Reports, and (C) if material, appropriate pro forma financial information) and all instructions and materials necessary to tender Securities pursuant to the Offer, together with the information contained in clause (3).
Appears in 1 contract
Samples: Indenture (Columbus McKinnon Corp)
Limitation on Sales of Assets and Subsidiary Stock. (a) The Company shall will not, and shall will not permit any Restricted Subsidiary to, directly or indirectly, consummate any sale, lease, transfer or other disposition (or series of related sales, leases, transfers or dispositions) by the Company or any Restricted Subsidiary, including any disposition by means of a merger, consolida tion or similar transaction (each referred to for the purposes of this definition as an "Asset Disposition"), of:
(a) any shares of Capital Stock of a Restricted Subsidiary (other than directors' qualifying shares or shares required by applicable law to be held by a Person other than the Company or a Restricted Subsidiary); [NYCORP2:396433.11:4417A:09/06/97--2:48a]
(b) all or substantially all the assets of any division or line of business of the Company or any Restricted Subsidiary;
(c) any other assets of the Company or any Restricted Subsidiary outside of the ordinary course of business of the Company or such Restricted Subsidiary;
(d) any Investment in a Strategic Alliance Client; or
(e) any Excess Spread Receivables; other than, in the case of (a), (b), (c), (d) and (e), above, (i) an Asset Disposition by a Restricted Subsidiary to the Company or by the Company or a Restricted Subsidiary to a Restricted Subsidiary or (ii) an Asset Disposition (including related assets) for an aggregate consideration of $1,000,000 or less, unless (iA) the Company or such Restricted Subsidiary receives consideration at the time of such Asset Disposition at least equal to the fair market value (including the value of all non-cash consideration), as determined in good faith by the Board of Directors, of the shares and assets subject to such Asset Disposition and at least 7585% of the consideration thereof therefor received by the Company or such Restricted Subsidiary is in the form of cash or cash equivalents equivalents, and (iiB) an amount equal to 100% of the Net Available Cash from such Asset Disposition is applied by the Company (or such Restricted Subsidiary, as the case may be)
) (Ax) first, to the extent the Company elects in its sole discretion (or is ----- required by the terms of any Indebtedness)elects, to prepayacquire Additional Assets, repay, redeem either directly or purchase Indebtedness (other than any Disqualified Stock) of the Company or of through a Restricted Subsidiary (in each case other than Indebtedness owed to the Company or an Affiliate of the Company) Subsidiary, within one year 180 days from the later of the date of such Asset Disposition or the receipt of such Net Available Cash;
, and (By) second, to the extent of the balance of such Net Available Cash after ------ application in accordance with clause (A) of this Section 4.06(ax), to permanently reduce the extent Commitments (as defined in the Credit Agreement) in accordance with Section 2.07 of the Credit Agreement and to make any prepay ments required by such Section in connection with such reduction pursuant to the Credit Agreement. Notwithstanding the foregoing provisions of this Section, the Company elects in its sole discretion, and the Restricted Subsidiaries shall not be required to acquire Additional Assets within one year after the receipt of such Net Available Cash;
(C) third, to the extent of the balance of such apply any Net Available Cash after ----- application in accordance accor dance with clauses (A) and (B) of this Section 4.06(a), to make an offer to the holders of the Securities to purchase Securities pursuant to and subject to the conditions contained in Section 4.06(b); and
(D) fourth, to the extent of the balance of such Net Available Cash after ------ application in accordance with clauses (A), (B) and (C) of this Section 4.06(a), for the general corporate and working capital purposes of the Company and its Restricted Subsidiaries;
(a) except to the extent that the aggregate Net Available Cash from all Asset Dispositions occurring after the Issue Date which are has not been applied in accordance with this Section 4.06(a) (or with Section 11D(a) of the terms of the Exchangeable Preferred Stock) paragraph exceeds $5 million10,000,000. Pending application of Net Available Cash pursuant to this Section 4.06Section, such Net Available Cash shall be invested applied (i) to prepay outstanding Loans under and as defined in the Credit Agreement and (ii) to the extent of [NYCORP2:396433.11:4417A:09/06/97--2:48a] the excess of Net Available Cash over the principal amount of outstanding Loans (as defined in the Credit Agreement), in Permitted Investments.
Appears in 1 contract
Samples: Letter of Credit and Reimbursement Agreement (Contifinancial Corp)
Limitation on Sales of Assets and Subsidiary Stock. (a) The Company shall not, and shall not permit any of its Restricted Subsidiary Subsidiaries to, directly or indirectly, consummate make any Asset Disposition unless unless:
(i1) the Company or such Restricted Subsidiary Subsidiary, as the case may be, receives consideration at the time (including by way of such Asset Disposition relief from, or by any other Person assuming responsibility for, any liabilities, contingent or otherwise) at least equal to the fair market value (including such fair market value to be determined on the value date of all non-cash considerationcontractually agreeing to such Asset Disposition), as determined in good faith by the Board of DirectorsDirectors of the Company, of the shares and assets subject to such Asset Disposition and (including, for the avoidance of doubt, if such Asset Disposition is a Permitted Asset Swap);
(2) in any such Asset Disposition, or series of related Asset Dispositions (except to the extent the Asset Disposition is a Permitted Asset Swap), at least 75% of the consideration thereof from such Asset Disposition (including by way of relief from, or by any other Person assuming responsibility for, any liabilities, contingent or otherwise) received by the Company or such Restricted Subsidiary Subsidiary, as the case may be, is in the form of cash or cash equivalents and Cash Equivalents; and
(ii3) an amount equal to 100% of the Net Available Cash from such Asset Disposition is applied by the Company (or such Restricted Subsidiary, as the case may be):
(Ai) first, to the extent the Company or any Restricted Subsidiary, as the case may be, elects in its sole discretion (or is ----- required by the terms of any Indebtedness), (A) to prepay, repay, redeem repay or purchase any Indebtedness (other than any Disqualified Stock) of the Company or of a Restricted Subsidiary Non-Guarantor or that is secured by a Lien (in each case case, other than Indebtedness owed to the Company or an Affiliate of any Restricted Subsidiary) or Indebtedness under the CompanySecond Lien Notes or the Credit Agreement (or any Refinancing Indebtedness in respect thereof) within one year 450 days from the later of (1) the date of such Asset Disposition or and (2) the receipt of such Net Available Cash;
; provided, however, that, in connection with any prepayment, repayment or purchase of Indebtedness pursuant to this clause (i), the Company or such Restricted Subsidiary will retire such Indebtedness and will cause the related commitment (if any) to be reduced in an amount equal to the principal amount so prepaid, repaid or purchased; or (B) secondto prepay, repay or purchase Pari Passu Indebtedness at a price of no more than 100% of the principal amount of such Pari Passu Indebtedness plus accrued and unpaid interest to the extent of the balance date of such Net Available Cash after ------ application in accordance with clause (A) of this Section 4.06(a)prepayment, repayment or purchase; provided further that, to the extent the Issuer redeems, repays or repurchases Pari Passu Indebtedness pursuant to this clause (B), the Issuer shall equally and ratably reduce Obligations under the Notes as provided under Section 5.7, through open-market purchases (to the extent such purchases are at or above 100% of the principal amount thereof) or by making an offer (in accordance with the procedures set forth below for an Asset Disposition Offer) to all Holders to purchase their Notes at 100% of the principal amount thereof, plus the amount of accrued but unpaid interest, if any, on the amount of Notes that would otherwise be prepaid; and/or
(ii) to the extent the Company elects in its sole discretionor such Restricted Subsidiary elects, to acquire invest in or commit to invest in Additional Assets (including by means of an investment in Additional Assets by a Restricted Subsidiary with Net Available Cash received by the Company or another Restricted Subsidiary) within one year after 450 days from the later of (A) the date of such Asset Disposition and (B) the receipt of such Net Available Cash;; provided, however, that any such reinvestment in Additional Assets made pursuant to a definitive binding agreement or a commitment approved by the Board of Directors of the Company that is executed or approved within such time will satisfy this requirement, so long as such investment is consummated within 180 days of such 450th day; provided that, pending the final application of any such Net Available Cash in accordance with clause (i) or clause (ii) in Section 3.5(a)(3), the Company and its Restricted Subsidiaries may temporarily reduce Indebtedness or otherwise use such Net Available Cash in any manner not prohibited by this Indenture; provided further that notwithstanding the foregoing, in the event that after giving pro forma effect to the LifeCell Disposition the Consolidated Total Leverage Ratio is less than or equal to 1.5 to 1.0, Section 3.5(a)(2) and (3) shall not apply with respect to the LifeCell Disposition.
(Cb) thirdAny Net Available Cash from Asset Dispositions that is not applied or invested or committed to be applied or invested as provided in the preceding paragraph will be deemed to constitute “Excess Proceeds” under this Indenture. On the 451st day after an Asset Disposition, if the aggregate amount of Excess Proceeds under this Indenture exceeds $50.0 million, the Issuer will within 10 Business Days be required to make an offer (“Asset Disposition Offer”) to all Holders of Notes issued under this Indenture and, to the extent the Issuer elects, to all holders of other outstanding Pari Passu Indebtedness, to purchase the maximum principal amount of Notes and any such Pari Passu Indebtedness to which the Asset Disposition Offer applies that may be purchased out of the balance Excess Proceeds, at an offer price in respect of the Notes in an amount equal to 100% of the principal amount of the Notes and Pari Passu Indebtedness, in each case, plus accrued and unpaid interest, if any, to, but not including, the date of purchase, in accordance with the procedures set forth in this Section or the agreements governing the Pari Passu Indebtedness, as applicable, and, with respect to the Notes, in minimum denominations of $2,000 and in integral multiples of $1,000 in excess thereof. The Issuer will deliver notice of such Asset Disposition Offer electronically or by first-class mail, with a copy to the Trustee, to each Holder of Notes at the address of such Holder appearing in the security register or otherwise in accordance with the procedures of DTC, describing the transaction or transactions that constitute the Asset Disposition and offering to repurchase the Notes for the specified purchase price on the date specified in the notice, which date will be no earlier than 30 days and no later than 60 days from the date such notice is delivered, pursuant to the procedures required by this Indenture and described in such notice.
(c) To the extent that the aggregate amount of Notes and Pari Passu Indebtedness so validly tendered and not properly withdrawn pursuant to an Asset Disposition Offer is less than the Excess Proceeds, the Issuer may use any remaining Excess Proceeds for any purpose not prohibited by this Indenture. If the aggregate principal amount of the Notes surrendered in any Asset Disposition Offer by Holders and other Pari Passu Indebtedness surrendered by holders or lenders, collectively, exceeds the amount of Excess Proceeds, the Excess Proceeds shall be allocated among the Notes and Pari Passu Indebtedness to be purchased on a pro rata basis on the basis of the aggregate principal amount of tendered Notes and Pari Passu Indebtedness. Upon completion of any Asset Disposition Offer, the amount of Excess Proceeds shall be reset at zero.
(d) To the extent that any portion of Net Available Cash payable in respect of the Notes is denominated in a currency other than U.S. dollars, the amount thereof payable in respect of the Notes shall not exceed the net amount of funds in U.S. dollars that is actually received by the Company upon converting such portion into U.S. dollars.
(e) For the purposes of Section 3.5(a)(2) hereof, the following will be deemed to be cash:
(i) the assumption by the transferee of Indebtedness or other liabilities contingent or otherwise of the Company or a Restricted Subsidiary (other than Subordinated Indebtedness of the Company or a Guarantor) and the release of the Company or such Restricted Subsidiary from all liability on such Indebtedness or other liability in connection with such Asset Disposition;
(ii) securities, notes or other obligations received by the Company or any Restricted Subsidiary of the Company from the transferee that are converted by the Company or such Restricted Subsidiary into cash or Cash Equivalents within 180 days following the closing of such Asset Disposition;
(iii) Indebtedness of any Restricted Subsidiary that is no longer a Restricted Subsidiary as a result of such Asset Disposition, to the extent that the Company and each other Restricted Subsidiary are released from any Guarantee of payment of such Indebtedness in connection with such Asset Disposition;
(iv) consideration consisting of Indebtedness of the Company (other than Subordinated Indebtedness) received after ----- application the Issue Date from Persons who are not the Company or any Restricted Subsidiary; and
(v) any Designated Non-Cash Consideration received by the Company or any Restricted Subsidiary in such Asset Dispositions having an aggregate fair market value, taken together with all other Designated Non-Cash Consideration received pursuant to this Section 3.5 that is at that time outstanding, not to exceed the greater of $150.0 million and 1.75% of Total Assets (with the fair market value of each item of Designated Non-Cash Consideration being measured at the time received and without giving effect to subsequent changes in value).
(f) Upon the commencement of an Asset Disposition Offer, the Issuer shall send, or cause to be sent, by first class mail, a notice to the Trustee and to each Holder at its registered address. The notice shall contain all instructions and materials necessary to enable such Holder to tender Notes pursuant to the Asset Disposition Offer. Any Asset Disposition Offer shall be made to all Holders. The notice, which shall govern the terms of the Asset Disposition Offer, shall state:
(1) that the Asset Disposition Offer is being made pursuant to this Section 3.5 and that, to the extent lawful, all Notes tendered and not withdrawn shall be accepted for payment (unless prorated);
(2) the Asset Disposition payment amount, the Asset Disposition offered price, and the date on which Notes tendered and accepted for payment shall be purchased, which date shall be at least 30 days and not later than 60 days from the date such notices is mailed (the “Asset Sale Payment Date”);
(3) that any Notes not tendered or accepted for payment shall continue to accrue interest in accordance with clauses the terms thereof;
(A4) that, unless the Issuer defaults in making such payment, any Notes accepted for payment pursuant to the Asset Disposition Offer shall cease to accrue interest on and after the Asset Sale Payment Date;
(B5) that Holders electing to have any Notes purchased pursuant to any Asset Disposition Offer shall be required to surrender the Notes, with the form entitled “Option of this Section 4.06(a)Holder to Elect Purchase” on the reverse of the Note completed, to make an offer the Paying Agent at the address specified in the notice at least three Business Days before the Asset sale Payment Date;
(6) that Holders shall be entitled to withdraw their election if the Paying Agent receives, not later than two Business Days prior to the holders Asset Sale Payment Date, a notice setting forth the name of the Securities Holder, the principal amount of the Note the Holder delivered for purchase and a statement that such Holder is withdrawing its election to purchase Securities pursuant have such Note purchased;
(7) that if the aggregate principal amount of Notes surrendered by Holders exceeds the Asset Disposition payment amount, the Issuer shall select the Notes to and subject to be purchased on a pro rata basis (with such adjustments as may be deemed appropriate by the conditions contained Issuer so that only Notes in Section 4.06(bdenominations of $2,000 or integral multiples of $1,000 in excess thereof shall be purchased); and
(D8) that Holders whose Notes were purchased only in part shall be issued new Notes equal in principal amount to the unpurchased portion of the Notes surrendered (or transferred by book-entry).
(g) fourthIf the Asset Sale Payment Date is on or after a record date and on or before the related interest payment date, any accrued and unpaid interest shall be paid to the Person in whose name a Note is registered at the close of business on such record date, and no additional interest shall be payable to Holders who tender Notes pursuant to the Asset Disposition Offer.
(h) On the Asset Sale Payment Date, the Issuer will, to the extent permitted by law,
(1) accept for payment all Notes issued by it or portions thereof properly tendered pursuant to the Asset Disposition Offer,
(2) deposit with the Paying Agent an amount equal to the aggregate Asset Disposition payment in respect of all Notes or portions thereof so tendered, and
(3) deliver, or cause to be delivered, to the balance Trustee for cancellation the Notes so accepted together with an Officer’s Certificate to the Trustee stating that such Notes or portions thereof have been tendered to and purchased by the Issuer.
(i) The Issuer will comply, to the extent applicable, with the requirements of Rule 14e-1 under the Exchange Act and any other securities laws and regulations thereunder to the extent such Net Available Cash after ------ application laws or regulations are applicable in accordance connection with clauses (A), (B) and (C) the repurchase of Notes pursuant to this Section 4.06(a), for the general corporate and working capital purposes of the Company and its Restricted Subsidiaries;
(a) except to 3.5. To the extent that the aggregate Net Available Cash from all Asset Dispositions occurring after provisions of any securities laws or regulations conflict with the Issue Date which are provisions of this Indenture, the Company will comply with the applicable securities laws and regulations and shall not applied in accordance with be deemed to have breached its obligations under this Section 4.06(a) (or with Section 11D(a) of the terms of the Exchangeable Preferred Stock) exceeds $5 million. Pending application of Net Available Cash pursuant to this Section 4.06, such Net Available Cash shall be invested in Permitted InvestmentsIndenture by virtue thereof.
Appears in 1 contract
Samples: Indenture (Kinetic Concepts Inc)
Limitation on Sales of Assets and Subsidiary Stock. Event of Loss. -------------
(a) The Company Guarantors shall not, and none shall not permit any Restricted Subsidiary of its Subsidiaries to, in one or a series of related transactions, convey, sell, lease, transfer, assign or otherwise suffer to dispose of, directly or indirectly, consummate any of its property, business or assets, including without limitation upon any sale or other transfer or issuance of any Capital Stock or other ownership interest of any Subsidiary of such Guarantor or any sale and leaseback transaction whether by such Guarantor or a Subsidiary of such Guarantor or through the issuance, sale or transfer of Capital Stock or other ownership interest by a Subsidiary (an "Asset Disposition Sale") that results in Net Cash Proceeds in excess of $5.0 million unless or that has a fair market value in excess of $5.0 million unless (i) (a) the Company Net Cash Proceeds therefrom (the "Asset Sale Offer Amount") are applied to the repurchase of the Notes pursuant to an irrevocable, unconditional offer (the "Asset Sale Offer") to repurchase Notes at a purchase price (the "Asset Sale Offer Price") of 101% of the principal amount of such Notes, plus accrued and unpaid interest to the date of payment; or such Restricted Subsidiary receives consideration at the time (b) within 180 days of such Asset Disposition at least equal to Sale, the fair market value Net Cash Proceeds therefrom are invested in assets and property that are part of a Related Business of a continuing Guarantor; (including the value of all non-cash consideration), as determined in good faith by the Board of Directors, of the shares and assets subject to such Asset Disposition and 2) at least 75% of the consideration thereof received by the Company for such conveyance, sale, lease, transfer or such Restricted Subsidiary is in the form other disposition or issuance consists of cash (i) U.S. Legal Tender; or cash equivalents and (ii) an amount equal to 100% Cash Equivalents; or (iii) the securities of a company with a market capitalization in excess of $500 million, which securities are traded on a national securities exchange and are of a class and series of securities with a minimum public float of $100 million; or (iv) liabilities assumed (other than subordinated Indebtedness) by the transferee; or (v) property that promptly (and in no event more than 10 days) after such Asset Sale is converted into U.S. Legal Tender; (3) no Default or Event of Default shall have occurred and be continuing at the time of, or would occur after giving effect, on a pro forma basis, to, such Asset Sale; and (4) the Board of Directors of the Net Available Cash from applicable Guarantor determines in good faith that such Asset Disposition is applied by the Company (Guarantor or such Restricted Subsidiary, as applicable, receives fair market value for such Asset Sale, as evidence by an Officers' Certificate delivered to the case may be)Trustee. Notwithstanding the foregoing provisions of the prior paragraph, an Asset Sale shall not be deemed to have occurred if:
(Ai) firstthe Guarantors in the ordinary course of business and consistent with past practice, to convey, sell, lease, transfer, assign, or otherwise dispose of assets acquired and held for resale in the extent the Company elects in its sole discretion (or is ----- required by the terms ordinary course of any Indebtedness), to prepay, repay, redeem or purchase Indebtedness (other than any Disqualified Stock) of the Company or of a Restricted Subsidiary (in each case other than Indebtedness owed to the Company or an Affiliate of the Company) within one year from the later of the date of such Asset Disposition or the receipt of such Net Available Cashbusiness;
(Bii) secondXxxxxxx Leasing leases the Empress III to Xxxxxxx Empress, or if Xxxxxxx Empress, or if Xxxxxxx Empress fails to commence gaming operations, leases the extent Empress III to a third party;
(iii) Xxxxxxx Leasing merges or consolidates into Xxxxxxx Empress;
(iv) the Guarantors convey, sell, lease, transfer or otherwise dispose of the balance of such Net Available Cash after ------ application assets pursuant to and in accordance with clause (A) the provisions of this Section 4.06(a), to the extent the Company elects in its sole discretion, to acquire Additional Assets within one year after the receipt of such Net Available Cash;Article VI; or
(Cv) third, to the extent a Sale of the balance of such Net Available Cash after ----- application a Guarantor is made in accordance with clauses the provisions of Section 5.20. The Company and the Guarantors shall accumulate all Net Cash Proceeds from Asset Sales (Aincluding any cash as and when received from the proceeds of any property which itself was acquired in consideration of an Asset Sale) and (B) of this Section 4.06(a), to make an offer to the holders of the Securities to purchase Securities pursuant to and subject to the conditions contained in Section 4.06(b); and
(D) fourth, to the extent of the balance aggregate amount of such accumulated Net Available Cash after ------ application in accordance with clauses (A), (B) and (C) of this Section 4.06(a), Proceeds not used for the general corporate purposes permitted, and working capital purposes of within the Company and its Restricted Subsidiaries;
(a) except to the extent that the aggregate Net Available Cash from all Asset Dispositions occurring after the Issue Date which are not applied in accordance with this Section 4.06(a) (or with Section 11D(a) of the terms of the Exchangeable Preferred Stock) exceeds $5 million. Pending application of Net Available Cash pursuant to this Section 4.06time period provided, such Net Available Cash shall be invested in Permitted Investments.by
Appears in 1 contract
Samples: Indenture (Hammond Residential LLC)
Limitation on Sales of Assets and Subsidiary Stock. (a) The Company shall will not, and shall will not permit any Restricted Subsidiary to, directly or indirectly, consummate any sale, lease, transfer or other disposition (or series of related sales, leases, transfers or dispositions) by the Company or any Restricted Subsidiary, including any disposition by means of a merger, consolida tion or similar transaction (each referred to for the purposes of this definition as an "Asset Disposition"), of:
(a) any shares of Capital Stock of a Restricted Subsidiary (other than directors' qualifying shares or shares required by applicable law to be held by a Person other than the Company or a Restricted Subsidiary);
(b) all or substantially all the assets of any division or line of business of the Company or any Restricted Subsidiary;
(c) any other assets of the Company or any Restricted Subsidiary outside of the ordinary course of business of the Company or such Restricted Subsidiary;
(d) any Investment in a Strategic Alliance Client; or
(e) any Excess Spread Receivables; other than, in the case of (a), (b), (c), (d) and (e), above, (i) an Asset Disposition by a Restricted Subsidiary to the Company or by the Company or a Restricted Subsidiary to a Restricted Subsidiary or (ii) an Asset Disposition (including related assets) for an aggregate consideration of $1,000,000 or less, unless (iA) the Company or such Restricted Subsidiary receives consideration at the time of such Asset Disposition at least equal to the fair market value (including the value of all non-cash consideration), as determined in good faith by the Board of Directors, of the shares and assets subject to such Asset Disposition and at least 7585% of the consideration thereof therefor received by the Company or such Restricted Subsidiary is in the form of cash or cash equivalents equivalents, and (iiB) an amount equal to 100% of the Net Available Cash from such Asset Disposition is applied by the Company (or such Restricted Subsidiary, as the case may be)
) (Ax) first, to the extent the Company elects in its sole discretion (or is ----- required by the terms of any Indebtedness)elects, to prepayacquire Additional Assets, repay, redeem either directly or purchase Indebtedness (other than any Disqualified Stock) of the Company or of through a Restricted Subsidiary (in each case other than Indebtedness owed to the Company or an Affiliate of the Company) Subsidiary, within one year 180 days from the later of the date of such Asset Disposition or the receipt of such Net Available Cash;
, and (By) second, to the extent of the balance of such Net Available Cash after ------ application in accordance with clause (A) of this Section 4.06(ax), to permanently reduce the extent Commitments (as defined in the Credit Agreement) in accordance with Section 2.07 of the Credit Agreement and to make any prepayments required by such Section in connection with such reduction pursuant to the Credit Agreement. Notwithstanding the foregoing provisions of this Section, the Company elects in its sole discretion, and the Restricted Subsidiaries shall not be required to acquire Additional Assets within one year after the receipt of such Net Available Cash;
(C) third, to the extent of the balance of such apply any Net Available Cash after ----- application in accordance accor dance with clauses (A) and (B) of this Section 4.06(a), to make an offer to the holders of the Securities to purchase Securities pursuant to and subject to the conditions contained in Section 4.06(b); and
(D) fourth, to the extent of the balance of such Net Available Cash after ------ application in accordance with clauses (A), (B) and (C) of this Section 4.06(a), for the general corporate and working capital purposes of the Company and its Restricted Subsidiaries;
(a) except to the extent that the aggregate Net Available Cash from all Asset Dispositions occurring after the Issue Date which are has not been applied in accordance with this Section 4.06(a) (or with Section 11D(a) of the terms of the Exchangeable Preferred Stock) paragraph exceeds $5 million10,000,000. Pending application of Net Available Cash pursuant to this Section 4.06Section, such Net Available Cash shall be invested applied (i) to prepay outstanding Loans under and as defined in the Credit Agreement and (ii) to the extent of the excess of Net Available Cash over the principal amount of outstanding Loans (as defined in the Credit Agreement), in Permitted Investments.
Appears in 1 contract
Samples: Letter of Credit and Reimbursement Agreement (Contifinancial Corp)
Limitation on Sales of Assets and Subsidiary Stock. (a) The Company shall will not, and shall will not permit any of its Restricted Subsidiary Subsidiaries to, directly or indirectly, consummate make any Asset Disposition unless unless: (i1) in the case of any Asset Disposition involving shares or assets having a value equal to or in excess of $1.0 million, the Company or such Restricted Subsidiary Subsidiary, as the case may be, receives consideration at the time of such Asset Disposition at least equal to the fair market value (such fair market value to be determined on the date of contractually agreeing to such Asset Disposition), as determined in good faith by the Board of Directors (including the value of all non-cash consideration), as determined in good faith by the Board of Directors, of the shares and assets subject to such Asset Disposition; (2) in the case of any Asset Disposition and involving shares or assets having a value equal to or in excess of $1.0 million, at least 75% of the consideration thereof from such Asset Disposition received by the Company or such Restricted Subsidiary Subsidiary, as the case may be, is in the form of cash or cash equivalents Cash Equivalents; and (ii3) an amount equal to 100% of the Net Available Cash from such Asset Disposition is applied by the Company (or such Restricted Subsidiary, as the case may be)
be (Aa) first, to the extent the Company elects in its sole discretion (or is ----- required by the terms of any Indebtedness), to prepay, repay, redeem repay or purchase secured Indebtedness of the Company or secured Indebtedness of a Restricted Subsidiary (other than any Disqualified Stock) of the Company Stock or Guarantor Subordinated Obligations of a Restricted Subsidiary (that is a Subsidiary Guarantor), in each case other than Indebtedness owed to the Company or an Affiliate of the CompanyCompany (other than to the extent such Indebtedness is permitted under Sections 3.3(b)(1) , 3.3(b)(2)(solely with respect to Guarantees under this Agreement), 3.3(b)(4)(a), 3.3(b)(4)(c)(solely with respect to the Securities), Section 3.3(b)(6), Section 3.3(b)(10) and Section 3.3(b)(11)), within one year 360 days from the later of the date of such Asset Disposition or the receipt of such Net Available Cash;
; provided, however, that, in connection with any prepayment, repayment or purchase of Indebtedness pursuant to this clause (Ba), the Company or such Restricted Subsidiary will retire such Indebtedness and will cause the related commitment (if any) second, to be permanently reduced in an amount equal to the extent of the balance of such Net Available Cash after ------ application principal amount so prepaid, repaid or purchased; or (b) to invest in accordance with clause (A) of this Section 4.06(a), to the extent the Company elects in its sole discretion, to acquire Additional Assets within one year after 360 days from the later of the date of such Asset Disposition or the receipt of such Net Available Cash;; provided that pending the final application of any such Net Available Cash in accordance with Section 3.7(a)(3)(a) or Section 3.7(a)(3)(b) above, the Company and its Restricted Subsidiaries may temporarily reduce Indebtedness or otherwise invest such Net Available Cash in any manner not prohibited by this Indenture; provided, further, that in the case of an Asset Disposition of Collateral, any cash will be deposited in the Collateral Account or otherwise in accordance with the Intercreditor Agreement.
(Cb) thirdAny Net Available Cash from Asset Dispositions that are not applied or invested as provided in Section 3.7(a)(3) will be deemed to constitute “Excess Proceeds.” On the 361st day after an Asset Disposition, if the aggregate amount of Excess Proceeds exceeds $5.0 million, the Company will be required to make an offer (“Asset Disposition Offer”) to all Holders of Securities to purchase the maximum principal amount of Securities to which the Asset Disposition Offer applies that may be purchased out of the Excess Proceeds, at an offer price in cash in an amount equal to 100% of the principal amount of the Securities plus accrued and unpaid interest to but not including the date of purchase, in accordance with the procedures set forth in this Indenture in denominations of $1 principal amount and integral multiples of $1 in excess thereof. To the extent that the aggregate amount of Securities so validly tendered and not properly withdrawn pursuant to an Asset Disposition Offer is less than the Excess Proceeds, the Company may use any remaining Excess Proceeds (x) for general corporate purposes, subject to other covenants contained in this Indenture; provided that to the extent that the assets disposed of in such asset sale constitutes Collateral, any assets purchased with such Excess Proceeds shall be pledged as Collateral pursuant to the Collateral Documents or (y) to make Restricted Payments in accordance with Section 3.5(a) (such Excess Proceeds not so invested, applied or used for general corporate purposes, “Extra Asset Sale Proceeds”). If the aggregate principal amount of Securities surrendered by holders thereof surrendered by holders or lenders, collectively, exceeds the amount of Excess Proceeds, the Trustee shall select the Securities to be purchased on a pro rata basis in authorized denominations of the aggregate principal amount of tendered Securities. Upon completion of such Asset Disposition Offer, the amount of Excess Proceeds shall be reset at zero.
(1) The Asset Disposition Offer shall remain open for a period of 20 Business Days following its commencement, except to the extent that a longer period is required by applicable law (the “Asset Disposition Offer Period”). No later than five Business Days after the termination of the Asset Disposition Offer Period (the “Asset Disposition Purchase Date”), the Company will purchase the principal amount of Securities required to be purchased pursuant to this Section 3.7 (the “Asset Disposition Offer Amount”) or, if less than the Asset Disposition Offer Amount has been so validly tendered, all Securities validly tendered in response to the Asset Disposition Offer. If the Asset Disposition Purchase Date is on or after an interest record date and on or before the related interest payment date, any accrued and unpaid interest will be paid to the Person in whose name a Security is registered at the close of business on such record date, and no additional interest will be payable to Holders who tender Securities pursuant to the Asset Disposition Offer. On or before the Asset Disposition Purchase Date, the Company will, to the extent lawful, accept for payment, on a pro rata basis to the extent necessary, the Asset Disposition Offer Amount of Securities or portions thereof so validly tendered and not properly withdrawn pursuant to the balance Asset Disposition Offer, or if less than the Asset Disposition Offer Amount has been validly tendered and not properly withdrawn, all Securities so validly tendered and not properly withdrawn, in each case in denominations of $1 and integral multiples of $1 in excess thereof. The Company will deliver to the Trustee an Officers’ Certificate stating that such Net Available Cash after ----- application Securities or portions thereof were accepted for payment by the Company in accordance with clauses (A) and (B) the terms of this Section 4.06(a)3.7. The Company or the Paying Agent, as the case may be, will promptly (but in any case not later than five Business Days after termination of the Asset Disposition Offer Period) mail or deliver to make each tendering Holder of Securities an offer amount equal to the holders purchase price of the Securities so validly tendered and not properly withdrawn by such Holder or lender, as the case may be, and accepted by the Company for purchase, and the Company will promptly issue a new Security, and the Trustee, upon delivery of a Company Order, will authenticate and mail or deliver such new Security to purchase Securities pursuant such Holder, in a principal amount equal to and subject any unpurchased portion of the Security surrendered; provided that each such new Security will be in a principal amount of $1 or an integral multiple of $1 in excess thereof. Any Security not so accepted will be promptly mailed or delivered by the Company to the conditions contained Holder thereof. The Company will publicly announce the results of the Asset Disposition Offer on the Asset Disposition Purchase Date. For the purposes of this Section 3.7, the following will be deemed to be cash:
(1) the assumption by the transferee of Indebtedness (other than Subordinated Obligations or Disqualified Stock) of the Company or Indebtedness of a Restricted Subsidiary (other than Guarantor Subordinated Indebtedness, Guarantor Subordinated Obligations or Disqualified Stock of any Wholly-Owned Subsidiary that is a Subsidiary Guarantor) and the release of the Company or such Restricted Subsidiary from all liability on such Indebtedness in connection with such Asset Disposition (in which case the Company will, without further action, be deemed to have applied such deemed cash to Indebtedness in accordance with Section 4.06(b3.7(a)(3)(a)); and
(D2) fourthsecurities, notes or other obligations received by the Company or any Restricted Subsidiary from the transferee that are promptly converted by the Company or such Restricted Subsidiary into cash.
(d) The Company will comply, to the extent applicable, with the requirements of Section 14(e) of the balance Exchange Act and any other securities laws or regulations in connection with the repurchase of such Net Available Cash after ------ application in accordance with clauses (A), (B) and (C) of Securities pursuant to this Section 4.06(a), for the general corporate and working capital purposes of the Company and its Restricted Subsidiaries;
(a) except to Indenture. To the extent that the aggregate Net Available Cash from all Asset Dispositions occurring after the Issue Date which are not applied in accordance provisions of any securities laws or regulations conflict with provisions of this Section 4.06(a) (or 3.7, the Company will comply with Section 11D(a) of the terms of the Exchangeable Preferred Stock) exceeds $5 million. Pending application of Net Available Cash pursuant applicable securities laws and regulations and will not be deemed to have breached its obligations under this Section 4.06, such Net Available Cash shall be invested in Permitted InvestmentsIndenture by virtue thereof.
Appears in 1 contract
Limitation on Sales of Assets and Subsidiary Stock. (a) The Company shall not, and shall not permit any Restricted Subsidiary to, directly or indirectly, consummate any Asset Disposition unless unless:
(i) the Company or such Restricted Subsidiary receives consideration at the time of such Asset Disposition at least equal to the fair market value (including as to the value of all non-cash consideration), as determined in good faith by the Board of Directors, of the shares and assets subject to such Asset Disposition and Disposition;
(ii) at least 7585% of the consideration thereof received by the Company or such Restricted Subsidiary is in the form of cash or cash equivalents and equivalents; and
(iiiii) an amount equal to 100% of the Net Available Cash from such Asset Disposition is applied by the Company (or such Restricted Subsidiary, as the case may be)):
(A) first, to the extent the Company elects in its sole discretion (or is ----- required by the terms of any Indebtedness), to prepay, repay, redeem or purchase Senior Indebtedness or Indebtedness (other than any Disqualified Stock) of the Company or of a Restricted Wholly Owned Subsidiary (in each case other than Indebtedness owed to the 44 Company or an Affiliate of the Company) within one year from the later of the date of such Asset Disposition or the receipt of such Net Available Cash;
(B) second, to the extent of the balance of such Net Available Cash after ------ application in accordance with clause (A) of this Section 4.06(a), to the extent the Company elects in its sole discretionelects, to acquire Additional Assets within one year after from the later of the date of such Asset Disposition or the receipt of such Net Available Cash;
(C) third, to the extent of the balance of such Net Available Cash after ----- application in accordance with clauses (A) and (B) of this Section 4.06(a), to make an offer Offer to the holders of the Securities (and to holders of other Senior Subordinated Indebtedness designated by the Company) to purchase Securities (and such other Senior Subordinated Indebtedness) pursuant to and subject to the conditions contained in of Section 4.06(b); and
(D) fourth, to the extent of the balance of such Net Available Cash after ------ application in accordance with clauses (A), (B) and (C), to (x) the acquisition by the Company or any Wholly Owned Subsidiary of Additional Assets or (y) the prepayment, repayment or purchase of Indebtedness (other than any Disqualified Stock) of the Company (other than Indebtedness owed to an Affiliate of the Company) or Indebtedness of any Subsidiary (other than Indebtedness owed to the Company or an Affiliate of the Company), in each case within one year from the later of the receipt of such Net Available Cash and the date the offer described in Section 4.06(b) is consummated; provided, however, that in connection with any prepayment, repayment or purchase of Indebtedness pursuant to clause (A), (C) or (D) above, the Company or such Restricted Subsidiary shall permanently retire such Indebtedness and shall cause the related loan commitment (if any) to be permanently reduced in an amount equal to the principal amount so prepaid, repaid or purchased. Notwithstanding the foregoing provisions of this Section 4.06(a)4.06, for the general corporate and working capital purposes of the Company and its the Restricted Subsidiaries;
(aSubsidiaries shall not be required to apply any Net Available Cash in accordance with this Section 4.06(a) except to the extent that the aggregate Net Available Cash from all Asset Dispositions occurring after the Issue Date which are not applied in accordance with this Section 4.06(a) (or with Section 11D(a) of the terms of the Exchangeable Preferred Stock) exceeds $5 million10,000,000. Pending application of Net Available Cash pursuant to this Section 4.064.06(a), such Net Available Cash shall be invested in Permitted Investments. For the purposes of this Section 4.06, the following are deemed to be cash or cash equivalents: (x) the assumption of Indebtedness of the Company or any Restricted Subsidiary and the release of the Company or such Restricted Subsidiary from all liability on such Indebtedness in connection with such Asset Disposition and (y) securities received by the Company or any Restricted Subsidiary from the transferee that are promptly converted by the Company or such Restricted Subsidiary into cash.
(b) In the event of an Asset Disposition that requires the purchase of Securities (and other Senior Subordinated Indebtedness) pursuant to Section 4.06(a)(iii)(C), the Company shall be required to purchase Securities tendered pursuant to an offer by the Company for the Securities (and other Senior Subordinated Indebtedness) (the "Offer") at a purchase price of 100% of their principal amount (without premium) plus accrued but unpaid interest (or, in respect of such other Senior Subordinated Indebtedness, such lesser price, if any, as may be provided for by the terms of such Senior Subordinated Indebtedness) in accordance with the procedures (including prorationing in the event of oversubscription) set forth in Section 4.06(c). If the aggregate purchase price of Securities (and any other Senior Subordinated Indebtedness) tendered pursuant to the Offer is less than the Net Available Cash allotted to the purchase thereof, the Company shall be required to apply the remaining Net Available Cash in accordance with Section 4.06(a)(ii)(D). The Company shall not be required to make an Offer to purchase Securities (and other Senior Subordinated Indebtedness) pursuant to this Section 4.06 if the Net Available Cash available therefor is less than $10,000,000 (which lesser amount shall be carried forward for purposes of determining whether such an Offer is required with respect to the Net Available Cash from any subsequent Asset Disposition).
(1) Promptly, and in any event within 10 days after the Company becomes obligated to make an Offer, the Company shall be obligated to deliver to the Trustee and send, by first-class mail to each Holder, a written notice stating that the Holder may elect to have his Securities purchased by the Company either in whole or in part (subject to prorating as hereinafter described in the event the Offer is oversubscribed) in integral multiples of $1,000 of principal amount, at the applicable purchase price. The notice shall specify a purchase date not less than 30 days nor more than 60 days after the date of such notice (the "Purchase Date") and shall contain such information concerning the business of the Company which the Company in good faith believes will enable such Holders to make an informed decision (which at a minimum will include (i) the most recently filed Annual Report on Form 10-K (including audited consolidated financial statements) of the Company, the most recent subsequently filed Quarterly Report on Form 10-Q and any Current Report on Form 8-K of the Company filed subsequent to such Quarterly Report, other than Current Reports describing Asset Dispositions otherwise described in the offering materials (or corresponding successor reports), (ii) a description of material developments in the Company's business subsequent to the date of the latest of such Reports and (iii) if material, appropriate pro forma financial information) and all instructions and materials necessary to tender Securities pursuant to the Offer, together with the information contained in clause (3).
(2) Not later than the date upon which written notice of an Offer is delivered to the Trustee as provided below, the Company shall deliver to the Trustee an Officers' Certificate as to (i) the amount of the Offer (the "Offer Amount"), (ii) the allocation of the Net Available Cash from the Asset Dispositions pursuant to which such Offer is being made and (iii) the compliance of such allocation with the provisions of Section 4.06(a). On such date, the Company shall also irrevocably deposit with the Trustee or with a paying agent (or, if the Company is acting as its own paying agent, segregate and hold in trust) in Temporary Cash Investments, maturing on the last day prior to the Purchase Date or on the Purchase Date if funds are immediately available by open of business, an amount equal to the Offer Amount to be held for payment in accordance with the provisions of this Section. Upon the expiration of the period for which the Offer remains open (the "Offer Period"), the Company shall deliver to the Trustee for cancellation the Securities or portions thereof which have been properly tendered to and are to be accepted by the Company. The Trustee shall, on the Purchase Date, mail or deliver payment to each tendering Holder in the amount of the purchase price. In the event that the aggregate purchase price of the Securities delivered by the Company to the Trustee is less than the Offer Amount applicable to the Securities, the Trustee shall deliver the excess to the Company immediately after the expiration of the Offer Period for application in accordance with this Section.
(3) Holders electing to have a Security purchased shall be required to surrender the Security, with an appropriate form duly completed, to the Company at the address specified in the notice at least three Business Days prior to the Purchase Date. Holders shall be entitled to withdraw their election if the Trustee or the Company receives not later than one Business Day prior to the Purchase Date, a telex, facsimile transmission or letter setting forth the name of the Holder, the principal amount of the Security which was delivered for purchase by the Holder and a statement that such Holder is withdrawing his election to have such Security purchased. If at the expiration of the Offer Period the aggregate principal amount of Securities (and any other Senior Subordinated Indebtedness included in the Offer) surrendered by holders thereof exceeds the Offer Amount, the Company shall select the Securities and the other Senior Subordinated Indebtedness to be purchased on a pro rata basis (with such adjustments as may be deemed appropriate by the Company so that only Securities and the other Senior Subordinated Indebtedness) in denominations of $1,000, or integral multiples thereof, shall be purchased). Holders whose Securities are purchased only in part shall be issued new Securities equal in principal amount to the unpurchased portion of the Securities surrendered.
(4) At the time the Company delivers Securities to the Trustee which are to be accepted for purchase, the Company shall also deliver an Officers' Certificate stating that such Securities are to be accepted by the Company pursuant to and in accordance with the terms of this Section. A Security shall be deemed to have been accepted for purchase at the time the Trustee, directly or through an agent, mails or delivers payment therefor to the surrendering Holder.
(d) 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 this Section. To the extent that the provisions of any securities laws or regulations conflict with provisions of this Section, the Company shall comply with the applicable securities laws and regulations and shall not be deemed to have breached its obligations under this Section by virtue thereof.
Appears in 1 contract
Samples: Indenture (King Pharmaceuticals Inc)
Limitation on Sales of Assets and Subsidiary Stock. (a) The Company shall not, and shall not permit any of its Restricted Subsidiary Subsidiaries to, directly or indirectly, consummate make any Asset Disposition unless unless:
(i) the Company or such Restricted Subsidiary receives consideration at the time of such Asset Disposition at least equal to the fair market value value, as determined in good faith by the Company's senior management or the Board of Directors (including as to the value of all non-cash consideration), as determined in good faith by the Board of Directors, of the shares and assets subject to such Asset Disposition and Disposition;
(ii) at least 75% of the consideration thereof received by the Company or such Restricted Subsidiary is in the form of cash or cash equivalents and equivalents; and
(iiiii) an amount equal to 100% of the Net Available Cash from such Asset Disposition is applied by the Company (or such Restricted Subsidiary, as the case may be)):
(A) first, to the extent the Company or any Restricted Subsidiary elects in its sole discretion (or is ----- required by the terms of any Senior Indebtedness), to prepay, repay, redeem repay or purchase (x) Senior Indebtedness or (y) Indebtedness (other than any Disqualified Stock) of the Company or of a Restricted Wholly Owned Subsidiary (in each case other than Indebtedness owed to the Company or an Affiliate of the Company) within one year 180 days from the later of the date of such Asset Disposition or the receipt of such Net Available Cash;
(B) second, to the extent of the balance of such Net Available Cash after ------ application in accordance with clause (A) of this Section 4.06(a), to the extent the Company elects in its sole discretion, to acquire Additional Assets within one year after from the receipt of such Net Available Cash;
(C) third, to the extent of the balance of such Net Available Cash after ----- application in accordance with clauses (A) and (B) of this Section 4.06(a), to make an offer to the holders of the Securities to purchase Securities pursuant to and subject to the conditions contained in Section 4.06(b); and
(D) fourth, to the extent of the balance of such Net Available Cash after ------ application in accordance with clauses clause (A), at the Company's election either (Bx) and (C) of this Section 4.06(a), for the general corporate and working capital purposes of the Company and its Restricted Subsidiaries;
(a) except to the extent that the aggregate Net Available Cash from all Asset Dispositions occurring after the Issue Date which are not applied investment in accordance with this Section 4.06(aor acquisition of Additional Assets or (y) to prepay, repay or purchase (1) Senior Indebtedness or with Section 11D(a(2) of the terms of the Exchangeable Preferred Stock) exceeds $5 million. Pending application of Net Available Cash pursuant to this Section 4.06, such Net Available Cash shall be invested in Permitted Investments.Indebtedness (other than any Disqualified
Appears in 1 contract
Samples: Indenture (Ero Marketing Inc)
Limitation on Sales of Assets and Subsidiary Stock. (a) The Company shall will not, and shall will not permit any of its Restricted Subsidiary Subsidiaries to, directly or indirectly, consummate any an Asset Disposition unless Sale unless:
(i1) the Company or such the applicable Restricted Subsidiary Subsidiary, as the case may be, receives consideration at the time of such the Asset Disposition Sale at least equal to the fair market value Fair Market Value of the assets sold or otherwise disposed of as determined in good faith by the Board of Directors of the Company (including the value of all non-cash consideration), as determined in good faith by the Board of Directors, of the shares and assets subject to such Asset Disposition and consideration); and
(2) at least 75% of the consideration thereof received for the assets sold by the Company or the Restricted Subsidiary, as the case may be, in the Asset Sale will be in the form of cash, Cash Equivalents or assets or Capital Stock which the Company or a Permitted Investing Subsidiary would be permitted to use the Net Cash Proceeds from such Asset Sale to purchase or invest in, if any, pursuant to clause (2) of Section 3.12(b). For the purposes of this clause (2), the following are deemed to be cash:
(A) Indebtedness and other liabilities shown on the most recent consolidated balance sheet of the Company prior to the date of such Asset Sale (other than Subordinated Indebtedness) (i) that are assumed or repaid or otherwise extinguished by the transferee of any such assets and (ii) for which the Company and its Restricted Subsidiaries are released from all liability at the time of such Asset Sale;
(B) any securities, notes or other Obligations received by the Company or any such Restricted Subsidiary from such transferee that are converted, sold or exchanged by the Company or such Restricted Subsidiary into cash or Cash Equivalents within 90 days, to the extent of the cash or Cash Equivalents received in that conversion, sale or exchange; and
(C) any Designated Non-cash Consideration received by the Company or such Restricted Subsidiary in such Asset Sale having an aggregate Fair Market Value, taken together with all other Designated Non-cash Consideration received pursuant to this clause (iii) that is in at that time outstanding, not to exceed the form greater of cash or cash equivalents (x) $20.0 million and (iiy) an amount equal to 1005.5% of LTM EBITDA, with the Net Available Cash from such Asset Disposition is applied by Fair Market Value of each item of Designated Non-cash Consideration being measured at the time received and without giving effect to subsequent changes in value.
(b) The Company (or such a Restricted Subsidiary, as the case may be), may (subject to the provisos below) apply the Net Cash Proceeds of any such Asset Sale within 365 days thereof to:
(1) prepay, repay, purchase, repurchase, redeem, retire, defease or otherwise retire for value (collectively, “repay”) any:
(A) firstsecured Indebtedness of the Company or a Restricted Subsidiary;
(B) Indebtedness of any Restricted Subsidiary that is not a Note Guarantor; or
(C) any Senior Indebtedness, provided that, if the Company repays any Senior Indebtedness other than the Notes pursuant to this clause (iii), it must repay Notes or make an offer to repurchase the Notes at a price equal to or above 100% of the principal amount thereof, whether or not the Holders accept such offer, in each case on a pro rata basis with such other Senior Indebtedness; in the case of each of clauses (i) through (iii) above, constituting Indebtedness for borrowed money or Capitalized Lease Obligations, and permanently reduce the commitments with respect thereto without Refinancing; or
(2) purchase or otherwise invest in:
(A) assets (other than current assets as determined in accordance with GAAP or Capital Stock) to be used by the Company or a Permitted Investing Subsidiary in a Permitted Business or capital expenditures;
(B) all or substantially all of the assets of a Permitted Business or properties; or
(C) Capital Stock of: (A) a Restricted Subsidiary held by a Person other than the Company or any of its Subsidiaries or (B) a Person engaged in a Permitted Business that becomes, upon the purchase or investment, a Restricted Subsidiary or, in the case of an Asset Sale in respect of assets or Capital Stock of a Restricted Subsidiary, a Restricted Subsidiary of which the Company owns, directly or indirectly, an equal or greater percentage of the economic and voting interests of its Capital Stock as it does (immediately prior to such Asset Sale) in respect of the Restricted Subsidiary whose assets or Capital Stock are included in such Asset Sale; or
(3) repay Indebtedness arising from agreements of the Company or a Restricted Subsidiary providing for adjustment of purchase price, deferred consideration, earn outs or similar obligations, in each case incurred in connection with the purchase or investment by the Company or a Restricted Subsidiary of or in assets or Capital Stock that occurred prior to such Asset Sale, and solely to the extent such repayment would be permitted under Section 3.12 (b)(2) herein if such purchase or investment had occurred immediately following the consummation of such Asset Sale; provided that such purchase or investment shall have occurred not more than 365 days prior to such Asset Sale; provided that in the case of Section 3.12 (b)(2) above, (A) the following Persons may make a purchase or investment in accordance with the foregoing: (x) the Company, (y) a Wholly Owned Subsidiary or (z) in the case of an Asset Sale in respect of assets or Capital Stock held by a Restricted Subsidiary only, a Restricted Subsidiary of which the Company, owns directly or indirectly, an equal or greater percentage of the economic and voting interests of its Capital Stock as it does of the Restricted Subsidiary that made such Asset Sale and (B) no purchase from the Company or any Subsidiary of the Company will satisfy the provisions of Section 3.12 (b)(2) above (each, other than the Company, a “Permitted Investing Subsidiary”); provided that (x) in the case of Section 3.12 (b)(2) above, a binding commitment shall be treated as a permitted application of the Net Cash Proceeds from the date of such commitment so long as the Company, or such Restricted Subsidiary enters into such commitment with the good faith expectation that such Net Cash Proceeds will be applied to satisfy such commitment within 180 days of such commitment (an “Acceptable Commitment”) and such Net Cash Proceeds are actually applied to satisfy such commitment within the later of (i) 365 days after receipt of the Net Cash Proceeds from the related Asset Sale and (ii) 180 days after the date of such binding commitment and (y) to the extent such Net Cash Proceeds are not actually applied to satisfy such commitment within the period set forth in clause (x) above, the Net Cash Proceeds not so applied shall constitute Excess Proceeds.
(c) To the extent all or a portion of the Net Cash Proceeds of any Asset Sale are not applied within 365 days thereof (or such longer period as permitted pursuant to an Acceptable Commitment as provided in Section 3.12(b) above) as described in clause (1) or (2) of Section 3.12(b) above (“Excess Proceeds”), the Company will make an offer to purchase Notes (an “Asset Sale Offer”), at a purchase price equal to 100% of the principal amount of the Notes to be purchased, plus accrued and unpaid interest thereon, to the date of purchase (the “Asset Sale Offer Amount”). The Company will purchase pursuant to an Asset Sale Offer from all tendering Holders on a pro rata basis in the manner provided in Section 5.5, and, at the Company’s option, on a pro rata basis with the holders of any other Senior Indebtedness with similar provisions requiring the Company to offer to purchase the other Senior Indebtedness with the proceeds of Asset Sales, that principal amount (or accreted value in the case of Indebtedness issued with original issue discount) of Notes and the other Senior Indebtedness to be purchased equal to such Excess Proceeds. The Company may satisfy its Obligations under this Section 3.12 with respect to any Excess Proceeds by making an Asset Sale Offer at the Asset Sale Offer Amount prior to the expiration of 365 days from the relevant Asset Sale (or, in the event an Acceptable Commitment has been entered into as set forth in Section 3.12(b) above, the later date of the 365th day following the Asset Sale or the expiration of the 180-day period set forth in Section 3.12(b) above).
(d) The purchase of Notes pursuant to an Asset Sale Offer will occur not less than 20 Business Days following the date thereof, or any longer period as may be required by law, nor more than 45 days following the 365th day following the Asset Sale (or, in the event an Acceptable Commitment has been entered into as set forth in Section 3.12(b), the later date of the 365th day following the Asset Sale or the expiration of the 180-day period set forth in such Section 3.12(b)). The Company may, however, defer an Asset Sale Offer until there is an aggregate amount of Excess Proceeds from one or more Asset Sales equal to or in excess of $25.0 million. At that time, the entire amount of Excess Proceeds, and not just the amount in excess of $25.0 million, will be applied as required pursuant to this Section 3.12. Pending application in accordance with this Section 3.12, Net Cash Proceeds may be applied to reduce revolving credit borrowings, Invested in Cash Equivalents or used for general corporate purposes in accordance with this Indenture.
(e) Each Asset Sale Offer Notice will be mailed first class, postage prepaid, to the record Holders as shown on the register of Holders within 30 days following such 365th day (or, in the event an Acceptable Commitment has been entered into as set forth in Section 3.12(b) above, the later date of the 365th day following the Asset Sale or the expiration of the 180-day period set forth in such Section 3.12(b)), with a copy to the Trustee offering to purchase the Notes as described above. Each Asset Sale Offer Notice will state, among other things, the purchase date, which must be no earlier than 10 days nor later than 60 days from the date the notice is mailed, other than as may be required by law (the “Asset Sale Offer Payment Date”). Upon receiving notice of an Asset Sale Offer, Holders may elect to tender their Notes in whole or in part in a principal amount of $2,000 or integral multiples of $1,000 in excess thereof in exchange for cash.
(f) On the Asset Sale Offer Payment Date, the Company will, to the extent lawful:
(1) accept for payment all Notes or portions thereof properly tendered pursuant to the Asset Sale Offer;
(2) deposit with the Paying Agent funds in an amount equal to the Asset Sale Offer Amount in respect of all Notes or portions thereof so tendered; and
(3) deliver or cause to be delivered to the Trustee the Notes so accepted together with an Officers’ Certificate stating the aggregate principal amount of Notes or portions thereof being purchased by the Company.
(g) To the extent Holders of Notes and holders of other Senior Indebtedness, if any, which are the subject of an Asset Sale Offer properly tender and do not withdraw Notes or the other Senior Indebtedness in an aggregate amount exceeding the amount of Excess Proceeds, the Company elects will purchase the Notes and the other Senior Indebtedness on a pro rata basis (based on amounts tendered). If only a portion of a Note is purchased pursuant to an Asset Sale Offer, a new Note in its sole discretion a principal amount equal to the portion thereof not purchased will be issued in the name of the Holder thereof upon cancellation of the original Note (or is ----- required by appropriate adjustments to the terms of any Indebtedness), to prepay, repay, redeem or purchase Indebtedness (other than any Disqualified Stock) of the Company or principal amount of a Restricted Subsidiary Global Note will be made, as appropriate). Notes (in each case other than Indebtedness owed or portions thereof) purchased pursuant to an Asset Sale Offer will be cancelled and cannot be reissued. Upon completion of an Asset Sale Offer, the Company or an Affiliate amount of the Company) within one year from the later of the date of such Asset Disposition or the receipt of such Net Available Cash;
(B) secondExcess Proceeds will be reset at zero. Accordingly, to the extent that the aggregate amount of Notes and other Indebtedness tendered pursuant to an Asset Sale Offer is less than the balance aggregate amount of such Net Available Cash after ------ application in accordance with clause (A) of this Section 4.06(a)Excess Proceeds, to the extent the Company elects in its sole discretion, to acquire Additional Assets within one year after the receipt of such may use any remaining Net Available Cash;
(C) third, to the extent of the balance of such Net Available Cash after ----- application in accordance with clauses (A) and (B) of this Section 4.06(a), to make an offer to the holders of the Securities to purchase Securities pursuant to and subject to the conditions contained in Section 4.06(b); and
(D) fourth, to the extent of the balance of such Net Available Cash after ------ application in accordance with clauses (A), (B) and (C) of this Section 4.06(a), Proceeds for the general corporate and working capital purposes of the Company and its Restricted Subsidiaries;Subsidiaries in accordance with this Indenture.
(ah) except The Company will comply with the requirements of Rule 14e-1 under the Exchange Act and any other applicable securities laws in connection with the purchase of Notes pursuant to an Asset Sale Offer. To the extent that the aggregate Net Available Cash from all Asset Dispositions occurring after the Issue Date which are not applied in accordance provisions of any applicable securities laws or regulations conflict with this Section 4.06(a) (or 3.12, the Company will comply with Section 11D(a) of the terms of the Exchangeable Preferred Stock) exceeds $5 million. Pending application of Net Available Cash pursuant these laws and regulations and will not be deemed to have breached its obligations under this Section 4.06, such Net Available Cash shall be invested in Permitted Investments3.12 by doing so.
Appears in 1 contract
Samples: Indenture (Stagwell Inc)
Limitation on Sales of Assets and Subsidiary Stock. (a) The Company shall will not, and shall will not permit any of its Restricted Subsidiary Subsidiaries to, directly or indirectly, consummate any an Asset Disposition unless Sale unless:
(i1) the Company or such the applicable Restricted Subsidiary Subsidiary, as the case may be, receives consideration at the time of such the Asset Disposition Sale at least equal to the fair market value Fair Market Value of the assets sold or otherwise disposed of as determined in good faith by the Board of Directors of the Company (including the value of all non-cash consideration), as determined in good faith by the Board of Directors, of the shares and assets subject to such Asset Disposition and ; and
(2) at least 75% of the consideration thereof received for the assets sold by the Company or the Restricted Subsidiary, as the case may be, in the Asset Sale will be in the form of cash, Cash Equivalents or assets or Capital Stock which the Company or a Permitted Investing Subsidiary would be permitted to use the Net Cash Proceeds from such Asset Sale to purchase or invest in, if any, pursuant to clause (2) of Section 3.12(b). For the purposes of this clause (2), the following are deemed to be cash:
(i) Indebtedness and other liabilities shown on the most recent consolidated balance sheet of the Company prior to the date of such Asset Sale (other than Subordinated Indebtedness) (i) that are assumed by the transferee of any such assets and (ii) for which the Company and its Restricted Subsidiaries are released from all liability at the time of such Asset Sale;
(ii) any securities, notes or other Obligations received by the Company or any such Restricted Subsidiary from such transferee that are converted, sold or exchanged by the Company or such Restricted Subsidiary into cash or Cash Equivalents within 90 days, to the extent of the cash or Cash Equivalents received in that conversion, sale or exchange; and
(iii) any Designated Non-cash Consideration received by the Company or such Restricted Subsidiary is in the form of cash or cash equivalents and (ii) an amount equal to 100% of the Net Available Cash from such Asset Disposition Sale having an aggregate Fair Market Value, taken together with all other Designated Non-cash Consideration received pursuant to this clause (iii) that is applied by at that time outstanding, not to exceed $5.0 million, with the Fair Market Value of each item of Designated Non-cash Consideration being measured at the time received and without giving effect to subsequent changes in value.
(b) The Company (or such a Restricted Subsidiary, as the case may be), may (subject to the proviso in clause (2) below) apply the Net Cash Proceeds of any such Asset Sale within 360 days thereof to:
(1) prepay, repay, purchase, repurchase, redeem, retire, defease or otherwise retire for value (collectively, “repay”) any:
(i) secured Indebtedness of the Company or a Restricted Subsidiary;
(ii) Indebtedness of any Restricted Subsidiary that is not a Note Guarantor; or
(iii) any Senior Indebtedness, provided that, if the Company repays any Senior Indebtedness other than the Notes, it must repay Notes or make an offer to repurchase the Notes at a price equal to or above 100% of the principal amount thereof, whether or not the Holders accept such offer, in each case on a pro rata basis with such other Senior Indebtedness; in the case of each of clauses (i) through (iii) above, constituting Indebtedness for borrowed money or Capitalized Lease Obligations, and permanently reduce the commitments with respect thereto without Refinancing; or
(2) purchase or otherwise invest in:
(i) assets (other than current assets as determined in accordance with GAAP or Capital Stock) to be used by the Company or a Permitted Investing Subsidiary in a Permitted Business or capital expenditures;
(ii) all or substantially all of the assets of a Permitted Business or properties; or
(iii) Capital Stock of: (A) firsta Restricted Subsidiary held by a Person other than the Company or any of its Restricted Subsidiaries or (B) a Person engaged in a Permitted Business that becomes, upon the purchase or investment, a Wholly Owned Subsidiary or, in the case of an Asset Sale in respect of assets or Capital Stock of a Restricted Subsidiary, a Restricted Subsidiary of which the Company owns, directly or indirectly, an equal or greater percentage of the economic and voting interests of its Capital Stock as it does (immediately prior to such Asset Sale) in respect of the Restricted Subsidiary whose assets or Capital Stock are included in such Asset Sale; provided that (A) the following Persons may make a purchase or investment in accordance with the foregoing: (x) the Company, (y) a Wholly Owned Subsidiary or (z) in the case of an Asset Sale in respect of assets or Capital Stock held by a Restricted Subsidiary only, a Restricted Subsidiary of which the Company, owns directly or indirectly, an equal or greater percentage of the economic and voting interests of its Capital Stock as it does of the Restricted Subsidiary that made such Asset Sale and (B) no purchase from the Company or any Restricted Subsidiary will satisfy the provisions of this clause (2) (each, other than the Company, a “Permitted Investing Subsidiary”); provided that (x) in the case of clause (2) above, a binding commitment shall be treated as a permitted application of the Net Cash Proceeds from the date of such commitment so long as the Company, or such Restricted Subsidiary enters into such commitment with the good faith expectation that such Net Cash Proceeds will be applied to satisfy such commitment within 90 days of such commitment (an “Acceptable Commitment”) and such Net Cash Proceeds are actually applied to satisfy such commitment within the later of (i) 360 days after receipt of the Net Cash Proceeds from the related Asset Sale and (ii) 90 days after the date of such binding commitment and (y) to the extent such Net Cash Proceeds are not actually applied to satisfy such commitment within the period set forth in clause (x) above, the Net Cash Proceeds not so applied shall constitute Excess Proceeds.
(c) To the extent all or a portion of the Net Cash Proceeds of any Asset Sale are not applied within 360 days thereof (or such longer period as permitted pursuant to an Acceptable Commitment as provided in Section 3.12(b) above) as described in clause (1) or (2) of Section 3.12(b) above (“Excess Proceeds”), the Company will make an offer to purchase Notes (an “Asset Sale Offer”), at a purchase price equal to 100% of the principal amount of the Notes to be purchased, plus accrued and unpaid interest thereon, to the date of purchase (the “Asset Sale Offer Amount”). The Company will purchase pursuant to an Asset Sale Offer from all tendering Holders on a pro rata basis in the manner provided in Section 5.5, and, at the Company’s option, on a pro rata basis with the holders of any other Senior Indebtedness with similar provisions requiring the Company to offer to purchase the other Senior Indebtedness with the proceeds of Asset Sales, that principal amount (or accreted value in the case of Indebtedness issued with original issue discount) of Notes and the other Senior Indebtedness to be purchased equal to such unapplied Net Cash Proceeds. The Company may satisfy its Obligations under this Section 3.12 with respect to any Net Cash Proceeds by making an Asset Sale Offer prior to the expiration of 360 days from the relevant Asset Sale (or, in the event an Acceptable Commitment has been entered into as set forth in Section 3.12(b) above, the later date of the 360th day following the Asset Sale or the expiration of the 90-day period set forth in Section 3.12(b) above).
(d) The purchase of Notes pursuant to an Asset Sale Offer will occur not less than 20 Business Days following the date thereof, or any longer period as may be required by law, nor more than 45 days following the 360th day following the Asset Sale (or, in the event an Acceptable Commitment has been entered into as set forth in Section 3.12(b), the later date of the 360th day following the Asset Sale or the expiration of the 90-day period set forth in such Section 3.12(b)). The Company may, however, defer an Asset Sale Offer until there is an aggregate amount of unapplied Net Cash Proceeds from one or more Asset Sales equal to or in excess of $7.5 million. At that time, the entire amount of unapplied Net Cash Proceeds, and not just the amount in excess of $7.5 million, will be applied as required pursuant to this Section 3.12. Pending application in accordance with this Section 3.12, Net Cash Proceeds will be applied to temporarily reduce revolving credit borrowings, Invested in Cash Equivalents or used for general corporate purposes.
(e) Each Asset Sale Offer Notice will be mailed first class, postage prepaid, to the record Holders as shown on the register of Holders within 30 days following such 360th day (or, in the event an Acceptable Commitment has been entered into as set forth in Section 3.12(b) above, the later date of the 360th day following the Asset Sale or the expiration of the 90-day period set forth in such Section 3.12(b)), with a copy to the Trustee offering to purchase the Notes as described above. Each Asset Sale Offer Notice will state, among other things, the purchase date, which must be no earlier than 30 days nor later than 60 days from the date the notice is mailed, other than as may be required by law (the “Asset Sale Offer Payment Date”). Upon receiving notice of an Asset Sale Offer, Holders may elect to tender their Notes in whole or in part in a principal amount of $2,000 or integral multiples of $1,000 in excess thereof in exchange for cash.
(f) On the Asset Sale Offer Payment Date, the Company will, to the extent the Company elects in its sole discretion lawful:
(1) accept for payment all Notes or is ----- required by the terms of any Indebtedness), to prepay, repay, redeem or purchase Indebtedness (other than any Disqualified Stock) of the Company or of a Restricted Subsidiary (in each case other than Indebtedness owed portions thereof properly tendered pursuant to the Company or an Affiliate of the Company) within one year from the later of the date of such Asset Disposition or the receipt of such Net Available CashSale Offer;
(B2) seconddeposit with the Paying Agent funds in an amount equal to the Asset Sale Offer Amount in respect of all Notes or portions thereof so tendered; and
(3) deliver or cause to be delivered to the Trustee the Notes so accepted together with an Officers’ Certificate stating the aggregate principal amount of Notes or portions thereof being purchased by the Company.
(g) To the extent Holders of Notes and holders of other Senior Indebtedness, if any, which are the subject of an Asset Sale Offer properly tender and do not withdraw Notes or the other Senior Indebtedness in an aggregate amount exceeding the amount of unapplied Net Cash Proceeds, the Company will purchase the Notes and the other Senior Indebtedness on a pro rata basis (based on amounts tendered). If only a portion of a Note is purchased pursuant to an Asset Sale Offer, a new Note in a principal amount equal to the portion thereof not purchased will be issued in the name of the Holder thereof upon cancellation of the original Note (or appropriate adjustments to the principal amount of a global Note will be made, as appropriate). Notes (or portions thereof) purchased pursuant to an Asset Sale Offer will be cancelled and cannot be reissued. Upon completion of an Asset Sale Offer, the amount of Net Cash Proceeds will be reset at zero. Accordingly, to the extent that the aggregate amount of Notes and other Indebtedness tendered pursuant to an Asset Sale Offer is less than the balance aggregate amount of such unapplied Net Available Cash after ------ application in accordance with clause (A) of this Section 4.06(a)Proceeds, to the extent the Company elects in its sole discretion, to acquire Additional Assets within one year after the receipt of such may use any remaining Net Available Cash;
(C) third, to the extent of the balance of such Net Available Cash after ----- application in accordance with clauses (A) and (B) of this Section 4.06(a), to make an offer to the holders of the Securities to purchase Securities pursuant to and subject to the conditions contained in Section 4.06(b); and
(D) fourth, to the extent of the balance of such Net Available Cash after ------ application in accordance with clauses (A), (B) and (C) of this Section 4.06(a), Proceeds for the general corporate and working capital purposes of the Company and its Restricted Subsidiaries;.
(ah) except The Company will comply with the requirements of Rule 14e-1 under the Exchange Act and any other applicable securities laws in connection with the purchase of Notes pursuant to an Asset Sale Offer. To the extent that the aggregate Net Available Cash from all Asset Dispositions occurring after the Issue Date which are not applied in accordance provisions of any applicable securities laws or regulations conflict with this Section 4.06(a) (or 3.12, the Company will comply with Section 11D(a) of the terms of the Exchangeable Preferred Stock) exceeds $5 million. Pending application of Net Available Cash pursuant these laws and regulations and will not be deemed to have breached its obligations under this Section 4.06, such Net Available Cash shall be invested in Permitted Investments3.12 by doing so.
Appears in 1 contract
Samples: Indenture (MDC Partners Inc)
Limitation on Sales of Assets and Subsidiary Stock. (a) The Company shall not, and shall not permit any of its Restricted Subsidiary Subsidiaries to, directly or indirectly, consummate make any Asset Disposition unless (i) the Company or such Restricted Subsidiary receives consideration at the time of such Asset Disposition at least equal to the fair market value value, as determined in good faith by the Company's Board of Directors (including as to the value of all non-cash consideration), as determined in good faith by the Board of Directors, of the shares and assets subject to such Asset Disposition and Disposition, (ii) at least 7580% of the consideration thereof received by the Company or such Restricted Subsidiary is in the form of cash or cash equivalents Cash Equivalents and (iiiii) an amount equal to 100% of the Net Available Cash from such Asset Disposition is applied by the Company (or such Restricted Subsidiary, as the case may be)
) (A) first, to the extent the Company or any Restricted Subsidiary elects in its sole discretion (or is ----- required by the terms of any IndebtednessSecured indebtedness), (x) to prepay, repay, redeem repay or purchase Secured Indebtedness or (other than any Disqualified Stocky) of the Company or of a Restricted Subsidiary (in each case other than Indebtedness owed to the Company investment in or an Affiliate acquisition of the Company) Additional Assets within one year 270 days from the later of the date of such Asset Disposition or the receipt of such Net Available Cash;
; (B) second, within 270 days from the receipt of such Net Available Cash, to the extent of the balance of such Net Available Cash after ------ application in accordance with clause (A) of this Section 4.06(a), to make an offer to purchase Notes at 101% of their principal amount plus accrued and unpaid interest, if any, thereon; (C) third, within 90 days after the extent later of the Company elects application of Net Available Cash in its sole discretion, to acquire Additional Assets within accordance with clauses (A) and (B) and the date that is one year after from the receipt of such Net Available Cash;
(C) third, to the extent of the balance of such Net Available Cash after ----- application in accordance with clauses (A) and (B) of this Section 4.06(a), to make an offer prepay, repay or repurchase Indebtedness (other than Preferred Stock) of the Company or of a Wholly-Owned Subsidiary (in each case other than Indebtedness owed to the holders of the Securities to purchase Securities pursuant to and subject to the conditions contained in Section 4.06(bCompany); and
and (D) fourth, to the extent of the balance of such Net Available Cash after ------ application in accordance with clauses (A), (B) and (C) of this Section 4.06(a), for to (w) the general corporate investment in or acquisition of Additional Assets, (x) the making of Temporary Cash Investments, (y) the prepayment, repayment or purchase of Indebtedness of the Company (other than Indebtedness owing to any Subsidiary of the Company) or Indebtedness of any Subsidiary (other than Indebtedness owed to the Company or any of its Subsidiaries) or (z) any other purpose otherwise permitted under the Indenture, in each case within the later of 45 days after the application of Net Available Cash in accordance with clauses (A), (B) and working capital purposes (C) or the date that is one year from the receipt of such Net Available Cash; provided, however, that, in connection with any prepayment, repayment or purchase of Indebtedness pursuant to clause (A), (B), (C) or (D) above, the Company or such Restricted Subsidiary shall retire such Indebtedness and shall cause the related loan commitment (if any) to be permanently reduced in an amount equal to the principal amount so prepaid, repaid or purchased. Notwithstanding the foregoing provisions, the Company and its Restricted Subsidiaries;
(a) Subsidiaries shall not be required to apply any Net Available Cash in accordance herewith except to the extent that the aggregate Net Available Cash For the purposes of this covenant, the following will be deemed to be cash: (x) the assumption by the transferee of Senior Indebtedness of the Company or Senior Indebtedness of any Restricted Subsidiary and the release of the Company or such Restricted Subsidiary from all liability on such Senior Indebtedness in connection with such Asset Dispositions occurring after Disposition (in which case the Issue Date which are not Company shall, without further action, be deemed to have applied such assumed Indebtedness in accordance with this Section 4.06(a) clause (or with Section 11D(aA) of the terms preceding paragraph) and (y) securities received by the Company or any Restricted Subsidiary of the Exchangeable Preferred StockCompany from the transferee that are promptly (and in any event within 60 days) exceeds $5 millionconverted by the Company or such Restricted Subsidiary into cash.
(b) In the event of an Asset Disposition that requires the purchase of Notes pursuant to clause (a)(iii)(B), the Company will be required to purchase Notes tendered pursuant to an offer by the Company for the Notes at a purchase price of 101% of their principal amount plus accrued and unpaid interest, if any, to the purchase date in accordance with the procedures (including prorating in the event of oversubscription) set forth in this Indenture. Pending application If the aggregate purchase price of the Notes tendered pursuant to the offer is less than the Net Available Cash allotted to the purchase of the Notes, the Company will apply the remaining Net Available Cash in accordance with clauses (a) (iii) (C) or (D) above.
(c) The Company will comply, to the extent applicable, with the requirements of Section 14(e) of the Exchange Act and any other securities laws or regulations in connection with the repurchase of Notes pursuant to this Section 4.06Indenture. To the extent that the provisions of any securities laws or regulations conflict with provisions of this covenant, such Net Available Cash shall the Company will comply with the applicable securities laws and regulations and will not be invested in Permitted Investmentsdeemed to have breached its obligations under this Indenture by virtue thereof.
Appears in 1 contract
Limitation on Sales of Assets and Subsidiary Stock. (a) The Company shall not, and shall not permit any Restricted Subsidiary to, directly or indirectly, consummate any Asset Disposition unless unless:
(i1) the Company or such Restricted Subsidiary receives consideration at the time of such Asset Disposition at least equal to the fair market value Fair Market Value (including as to the value of all non-cash consideration), as determined in good faith by the Company, or in the case of an Asset Disposition in excess of $10.0 million, by the Board of DirectorsDirectors of the Company, of the shares and assets subject to such Asset Disposition and Disposition;
(2) at least 75% of the consideration thereof received by the Company or such Restricted Subsidiary is in the form of cash or cash equivalents and equivalents; and
(ii3) an amount equal to 100% of the Net Available Cash from such Asset Disposition is applied by the Company (or such Restricted Subsidiary, as Subsidiary pursuant to one or more of the case may be)following:
(A) first, to the extent the Company elects in its sole discretion (or is ----- required by the terms of any such Indebtedness), to prepay, repay, redeem or purchase (including cash collateralization of letters of credit and similar credit transactions constituting Obligations under Indebtedness (other than any Disqualified Stock) of the Company or of a Restricted Subsidiary (in each case other than secured by a Lien permitted by Section 4.06(c)) Indebtedness owed to of the Company or an Affiliate of a Restricted Subsidiary secured by a Lien permitted by Section 4.06(c) or to effect a permanent reduction in availability under such Indebtedness regardless of the Companyfact that no prepayment may be required) within one year from the later of the date of such Asset Disposition or the receipt of such Net Available Cash;
(B) second, to the extent of the balance of such Net Available Cash after ------ application (if any) in accordance with clause (A) of this Section 4.06(a), to the extent the Company elects in its sole discretion, to acquire Additional Assets within one year after from the later of the date of such Asset Disposition or the receipt of such Net Available Cash;; and
(C) third, to the extent of the balance of such Net Available Cash after ----- application in accordance with clauses (A) and (B) of this Section 4.06(a), to make an offer to the holders Holders of the Securities Notes and any Other Pari Passu Secured Indebtedness to purchase Securities Notes at 100% of their principal amount thereof and any Other Pari Passu Secured Indebtedness pursuant to and subject to the conditions contained in of Section 4.06(b4.07(b); and
provided, however, that in connection with any prepayment, repayment or purchase of Indebtedness pursuant to clause (DA) fourthor (C) above, the Company or such Restricted Subsidiary shall permanently retire such Indebtedness and shall cause the related loan commitment (if any) to be permanently reduced in an amount equal to the extent principal amount so prepaid, repaid or purchased, as applicable. Notwithstanding the foregoing provisions of this Section 4.07, the balance of such Company and the Restricted Subsidiaries will not be required to apply any Net Available Cash after ------ application in accordance with clauses (A), (B) and (C) of this Section 4.06(a), for the general corporate and working capital purposes of the Company and its Restricted Subsidiaries;
(a4.07(a) except to the extent that the aggregate Net Available Cash from all Asset Dispositions occurring after the Issue Date which are is not applied in accordance with this Section 4.06(a) (or with Section 11D(a) of the terms of the Exchangeable Preferred Stock4.07(a) exceeds $5 10.0 million. Pending application of Net Available Cash pursuant to this Section 4.064.07(a), such Net Available Cash shall may be invested in Permitted Investmentsa manner not prohibited by this Indenture and/or applied to temporarily reduce revolving credit indebtedness. For the purposes of Section 4.07(a)(2), any of the following are deemed to be cash or cash equivalents:
(1) the assumption of Indebtedness of the Company or any Restricted Subsidiary and the release of the Company or such Restricted Subsidiary from all liability on such Indebtedness in connection with such Asset Disposition;
(2) securities, notes or other obligations received by the Company or any Restricted Subsidiary from the transferee that are converted by the Company or such Restricted Subsidiary into cash within 90 days after the date of such Asset Disposition (to the extent of the cash received); and
(3) any Additional Assets (so long as such Additional Assets are acquired for Fair Market Value in connection with the transaction giving rise to such Asset Disposition, as determined in good faith by the Board of Directors of the Company or such Restricted Subsidiary, as applicable).
(b) In the event of an Asset Disposition that requires the purchase of Notes and any Other Pari Passu Secured Indebtedness pursuant to Section 4.07(a)(3)(C), the Company shall purchase Notes tendered pursuant to an offer by the Company for the Notes and any Other Pari Passu Secured Indebtedness at a purchase price of 100% of their principal amount (or in the event such Other Pari Passu Secured Indebtedness was issued with significant original issue discount, 100% of the accreted value thereof) without premium, plus accrued but unpaid interest or, in respect of such Other Pari Passu Secured Indebtedness, such lesser price, if any, as may be provided for by the terms of such Other Pari Passu Secured Indebtedness in accordance with the procedures (including prorating in the event of oversubscription) set forth in this Indenture. If the aggregate purchase price of the securities tendered exceeds the Net Available Cash allotted to their purchase, the Company shall select the securities to be purchased on a pro rata basis but in round denominations, which in the case of the Notes shall be denominations of $1,000 principal amount or multiples thereof. The Company shall not be required to make such an offer to purchase Notes (and Other Pari Passu Secured Indebtedness) pursuant to this Section 4.07 if the Net Available Cash available therefor is less than $10.0 million (which lesser amount shall be carried forward for purposes of determining whether such an offer is required with respect to the Net Available Cash from any subsequent Asset Disposition). Upon completion of each offer to purchase Notes pursuant to this Section 4.07, the amount of Net Available Cash will be reset to zero.
(c) The Company will comply with the notice requirements of Section 3.03 and, to the extent applicable, with the requirements of Section 14(e) of the Exchange Act and any other securities laws or regulations in connection with the repurchase of Notes pursuant to this Section 4.07. To the extent that the provisions of any securities laws or regulations conflict with provisions of this Section 4.07, the Company shall comply with the applicable securities laws and regulations and shall not be deemed to have breached its obligations under this Section 4.07 by virtue of its compliance with such securities laws or regulations.
Appears in 1 contract
Limitation on Sales of Assets and Subsidiary Stock. (a) The Company shall not, and shall not permit any Restricted Subsidiary to, directly or indirectly, consummate make any Asset Disposition unless unless:
(i) the The Company or such Restricted Subsidiary receives consideration at the time of such Asset Disposition at least equal to the fair market value value, as determined in good faith by the Company (including as to the value of all non-cash consideration), as determined in good faith by the Board of Directors, of the shares and assets subject to such Asset Disposition and at least 75% of the consideration thereof received, together with all other Asset Dispositions since the Issue Date (on a cumulative basis), by the Company or such Restricted Subsidiary, as the case may be, is in the form of cash or Cash Equivalents; provided, however, that in the case of an Asset Disposition (x) involving the disposition of non-core assets (as determined by the Company in its good faith judgment) acquired as part of any acquisition after the Issue Date or (y) for aggregate consideration of less than $100.0 million, only 50% of the consideration therefor must be in the form of cash or Cash Equivalents; provided further that:
(A) any promissory notes, securities or other obligations or amounts received by the Company or any such Restricted Subsidiary from such transferee that are converted by the Company or such Restricted Subsidiary into cash within 360 days of the receipt thereof (to the extent of the cash received) shall be deemed to be cash solely for purposes of this Section 10.16(a)(i), and
(B) any Designated Non-cash Consideration received by the Company or any of its Restricted Subsidiaries in such Asset Disposition having an aggregate Fair Market Value, taken together with all other Designated Non-cash Consideration received pursuant to this Section 10.16(a)(i)(B) that is at that time outstanding, not to exceed the greater of (x) $150.0 million and (y) 4.0% of Consolidated Tangible Assets at the time of receipt of such Designated Non-cash Consideration (with the Fair Market Value of each item of Designated Non-cash Consideration being measured at the time received and without giving effect to subsequent changes in the form value) shall be deemed to be cash solely for purposes of cash or cash equivalents and this Section 10.16(a)(i);
(ii) an amount equal to 100% of the Net Available Cash from such Asset Disposition is applied by the Company (or such Restricted Subsidiary, as the case may be), at its option except as described below:
(A) first, (x) to the extent the Company elects in its sole discretion (or is ----- required by the terms of any IndebtednessSenior Indebtedness or any Indebtedness of any non-Guarantor Subsidiary), to prepay, repay, redeem repay or purchase Senior Indebtedness (other than or Indebtedness of any Disqualified Stock) non-Guarantor Subsidiary of the Company within 365 days of such Asset Disposition, (y) at the Company’s election to the investment by the Company or of a such Restricted Subsidiary in assets to replace the assets that were the subject of such Asset Disposition or assets that (as determined in good faith by the Company) are directly related to the business of the Company and the Restricted Subsidiaries existing on the Issue Date, in each case other than Indebtedness owed to the Company or an Affiliate of the Company) within one year 365 days from the later of the date of such Asset Disposition Disposition, or (z) a combination of the receipt of foregoing purposes within such Net Available Cash365-day period;
(B) secondto make a pro rata offer to purchase Notes at par (and, to the extent required by the instrument governing such Indebtedness, any other Senior Indebtedness or Indebtedness of a non-Guarantor Subsidiary designated by the Company, at a price no greater than par) plus accrued and unpaid interest, which offer can be made at the Company’s election at any time during the 365-day period set forth in Section 10.16(a)(ii)(A) or within 10 Business Days after such period, and
(C) to the extent of the balance of such Net Available Cash after ------ application in accordance with clause Sections 10.16(a)(ii)(A) and 10.16(a)(ii)(B), for general corporate purposes otherwise permitted under this Indenture; provided, however, that in connection with any prepayment, repayment or purchase of Indebtedness pursuant to Sections 10.16(a)(ii)(A) and 10.16(a)(ii)(B), the Company or such Subsidiary shall retire such Indebtedness and cause the related loan commitment (Aif any) to be permanently reduced in an amount equal to the principal amount so prepaid, repaid or purchased. Notwithstanding the foregoing provisions of this Section 4.06(a)10.16, to the extent the Company elects in its sole discretion, to acquire Additional Assets within one year after the receipt of such Net Available Cash;
(C) third, to the extent of the balance of such Net Available Cash after ----- application in accordance with clauses (A) and (B) of this Section 4.06(a), to make an offer to the holders of the Securities to purchase Securities pursuant to and subject to the conditions contained in Section 4.06(b); and
(D) fourth, to the extent of the balance of such Net Available Cash after ------ application in accordance with clauses (A), (B) and (C) of this Section 4.06(a), for the general corporate and working capital purposes of the Company and its Restricted Subsidiaries;
(a) Subsidiaries shall not be required to apply any Net Available Cash in accordance with this Section 10.16 except to the extent that the aggregate Net Available Cash from all Asset Dispositions occurring after (including any Asset Dispositions made since the Issue Date Date) which are not applied in accordance with this Section 4.06(a) 10.16 exceeds $50.0 million. For the purposes of this Section 10.16, the following is deemed to be cash or Cash Equivalents: the express assumption of Indebtedness (other than any Indebtedness that is by its terms subordinated to the Notes or with Section 11D(ato any Subordinated Obligation) of the Company or any Restricted Subsidiary and for which the Company or such Restricted Subsidiary has been validly released by all creditors in writing.
(b) In the event of an Asset Disposition that results in an offer to purchase the Notes (and other Senior Indebtedness or Indebtedness of any non-Guarantor Subsidiary) pursuant to Section 10.16(a)(ii)(B), the Company or such Restricted Subsidiary shall purchase Notes tendered pursuant to an offer by the Company for the Notes (and, to the extent required, other Senior Indebtedness of any non-Guarantor Subsidiary) at a purchase price of 100% of their principal amount (without premium) plus accrued but unpaid interest (or, in respect of such other Senior Indebtedness or Indebtedness of any non-Guarantor Subsidiary, such lesser price, if any, as may be provided for by the terms of such Senior Indebtedness or Indebtedness of any non-Guarantor Subsidiary, as applicable) in accordance with the Exchangeable Preferred Stockprocedures (including prorating in the event of oversubscription) exceeds set forth in this Indenture which shall include, among other things, that the offer shall remain open for 20 Business Days following its commencement. If the aggregate purchase price of Notes (and, to the extent required, any other Senior Indebtedness or Indebtedness of any non-Guarantor Subsidiary) tendered pursuant to such offer is less than the Net Available Cash allotted to the purchase thereof, the Company shall be entitled to apply the remaining Net Available Cash in accordance with Section 10.16(a)(ii)(A) or (C). The Company shall not be required to make such an offer to purchase Notes (and other Senior Indebtedness or Indebtedness of any non-Guarantor Subsidiary) pursuant to this Section 10.16 if the Net Available Cash available therefor is less than $5 million50.0 million (which lesser amount shall be carried forward for purposes of determining whether such an offer is required with respect to any subsequent Asset Disposition). The Company shall not be required to make such an offer to purchase Notes (and other Senior Indebtedness or Indebtedness of any non-Guarantor Subsidiary) pursuant to this Section 10.16 if a third party (including any of the Company’s Restricted Subsidiaries) makes the offer in the manner, at the times and otherwise in compliance with the requirements set forth in this Indenture applicable to such an offer by the Company and purchases all Notes validly tendered and not withdrawn under such offer. Upon completion of any such offer by the Company for Notes, the amount of Net Available Cash related to such Asset Disposition shall be reset to zero, and during the pendency of an offer by the Company for Notes being effected in advance of being required to do so by this Indenture, the amount of Net Available Cash the Company is offering to apply in such offer shall be excluded in subsequent calculations of Net Available Cash in respect of subsequent Asset Dispositions. Pending the final application of any Net Available Cash pursuant to this Section 4.0610.16(a)(ii), the Company or the applicable Restricted Subsidiary may apply such Net Available Cash temporarily to reduce Indebtedness outstanding under a revolving credit facility or otherwise invest such Net Available Cash in Cash Equivalents or Investment Grade Securities.
(c) 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 Notes pursuant to this Section 10.16. To the extent that the provisions of any securities laws or regulations conflict with provisions of this Section 10.16, the Company shall comply with the applicable securities laws and regulations and shall not be invested in Permitted Investmentsdeemed to have breached its obligations under this Section 10.16(c) by virtue thereof.
Appears in 1 contract
Samples: Indenture (Terex Corp)
Limitation on Sales of Assets and Subsidiary Stock. (a) The Company shall not, and shall not permit any Restricted Subsidiary to, directly or indirectly, consummate any Asset Disposition unless of any Collateral unless:
(i1) the Company or such Restricted Subsidiary receives consideration at the time of such Asset Disposition at least equal to the fair market value (including as to the value of all non-cash consideration), as determined in good faith by the Board of Directors, of the shares and assets subject to such Asset Disposition and Disposition;
(2) at least 75% of the consideration thereof received by the Company or such Restricted Subsidiary is in the form of cash or Cash Equivalents; and
(3) an amount equal to 100% of the Net Available Cash from such Asset Disposition is paid directly by the purchaser thereof, subject to the terms of the Intercreditor Agreement and the Security Documents, to the Collateral Agent or the Trustee to be held in trust and applied by the Company (or such Restricted Subsidiary, as the case may be) at the Company's election either:
(A) to acquire Additional Assets, which Additional Assets are concurrently with their acquisition added to the Collateral securing the Securities; provided, that if such Asset Disposition consists of assets or property of a Domestic Subsidiary that such Additional Assets shall also be assets or property of a Domestic Subsidiary;
(B) to repay any obligations under the Credit Facility and, in the case of any term loan facility, effect a permanent reduction in the availability under such term loan facility;
(C) if such Asset Disposition occurs prior to October 15, 2007, and if the Net Available Cash from such Asset Disposition is $25.0 million or more, to redeem the Securities pursuant to Section 3.01(c) of this Indenture; or
(D) if such Asset Disposition occurs after October 15, 2007, to redeem the Securities pursuant to Section 3.01(a) of this Indenture; in each case within three months from the later of the date of such Asset Disposition or the receipt of such Net Available Cash.
(b) The Company shall not, and shall not permit any Restricted Subsidiary to, directly or indirectly, consummate any Asset Disposition (other than an Asset Disposition of Collateral) unless:
(1) the Company or such Restricted Subsidiary receives consideration at the time of such Asset Disposition at least equal to the fair market value (including as to the value of all non-cash equivalents consideration), as determined in good faith by the Board of Directors, of the shares and assets subject to such Asset Disposition;
(ii2) at least 75% of the consideration thereof received by the Company or such Restricted Subsidiary is in the form of cash or Cash Equivalents; and
(3) an amount equal to 100% of the Net Available Cash from such Asset Disposition is applied by the Company (or such Restricted Subsidiary, as the case may be)
(A) first, to the extent the Company elects in its sole discretion (or is ----- required by the terms of any Indebtedness), to prepay, repay, redeem or purchase Credit Facility Indebtedness or Indebtedness (other than any Disqualified Stock) of the Company or of a Restricted Subsidiary (in each case other than Indebtedness owed to the Company or an Affiliate of the Company) within one year from the later of the date of such Asset Disposition or the receipt of such Net Available Cash;
(B) secondto the extent the Company elects, to acquire Additional Assets within one year from the later of the date of such Asset Disposition or the receipt of such Net Available Cash;
(C) to repay any obligations under the Credit Facility and, in the case of any term loan credit facility, effect a permanent reduction in the availability under such term loan facility; or
(D) to the extent of the balance of such Net Available Cash after ------ application in accordance with clause (Aor upon election not to utilize) of this Section 4.06(a), to the extent the Company elects in its sole discretion, to acquire Additional Assets within one year after the receipt of such Net Available Cash;
(C) third, to the extent of the balance of such Net Available Cash after ----- application in accordance with clauses (A) and or (B) of this Section 4.06(asection 4.06(b)(3), to make an offer elect to the holders of the Securities to purchase redeem Securities pursuant to and subject Section 3.01 of this Indenture; provided, however, that in connection with any prepayment, repayment or purchase of Indebtedness under a term loan facility pursuant to the conditions contained in Section 4.06(b); and
(D) fourth, to the extent of the balance of such Net Available Cash after ------ application in accordance with clauses clause (A), (B) and or (C) of this Section 4.06(a4.06(b), for the general corporate Company or such Restricted Subsidiary shall permanently retire such term loan facility Indebtedness and working capital purposes shall cause the related loan commitment (if any) to be permanently reduced in an amount equal to the principal amount so prepaid, repaid or purchased.
(c) Notwithstanding the foregoing provisions of paragraphs (a) and (b) of this Section 4.06, the Company and its the Restricted Subsidiaries;
(a) Subsidiaries shall not be required to apply any Net Available Cash in accordance with those paragraphs except to the extent that the aggregate Net Available Cash from all Asset Dispositions occurring after the Issue Date subject to those paragraphs which are is not applied in accordance with this Section 4.06(a) (or with Section 11D(a) of the terms of the Exchangeable Preferred Stock) those paragraphs exceeds $5 5.0 million. Pending application of Net Available Cash pursuant to this Section 4.06, such Net Available Cash shall be invested in Permitted InvestmentsCash Equivalents or applied to temporarily reduce revolving credit indebtedness.
(d) For the purposes of this Section 4.06, the following are also deemed to be cash or Cash Equivalents:
(1) the assumption of Indebtedness of the Company (other than obligations in respect of Disqualified Stock of the Company) or any Restricted Subsidiary (other than obligations in respect of Disqualified Stock or Preferred Stock of a Subsidiary Guarantor) and the release of the Company or such Restricted Subsidiary from all liability on such Indebtedness in connection with such Asset Disposition; and
(2) securities received by the Company or any Restricted Subsidiary from the transferee that are promptly converted by the Company or such Restricted Subsidiary into cash, to the extent of cash received in that conversion.
Appears in 1 contract
Limitation on Sales of Assets and Subsidiary Stock. (a) The Company shall will not, and shall will not permit any of its Restricted Subsidiary Subsidiaries to, directly or indirectly, consummate any an Asset Disposition unless Sale unless:
(i1) the Company or such the applicable Restricted Subsidiary Subsidiary, as the case may be, receives consideration at the time of such the Asset Disposition Sale at least equal to the fair market value Fair Market Value of the assets sold or otherwise disposed of as determined in good faith by the Board of Directors of the Company (including the value of all non-cash consideration), as determined in good faith by the Board of Directors, of the shares and assets subject to such Asset Disposition and ; and
(2) at least 75% of the consideration thereof received for the assets sold by the Company or the Restricted Subsidiary, as the case may be, in the Asset Sale will be in the form of cash, Cash Equivalents or assets or Capital Stock which the Company or a Permitted Investing Subsidiary would be permitted to use the Net Cash Proceeds from such Asset Sale to purchase or invest in, if any, pursuant to clause (2) of Section 3.12(b). For the purposes of this clause (2), the following are deemed to be cash:
(i) Indebtedness and other liabilities shown on the most recent consolidated balance sheet of the Company prior to the date of such Asset Sale (other than Subordinated Indebtedness) (i) that are assumed by the transferee of any such assets and (ii) for which the Company and its Restricted Subsidiaries are released from all liability at the time of such Asset Sale;
(ii) any securities, notes or other Obligations received by the Company or any such Restricted Subsidiary from such transferee that are converted, sold or exchanged by the Company or such Restricted Subsidiary into cash or Cash Equivalents within 90 days, to the extent of the cash or Cash Equivalents received in that conversion, sale or exchange; and
(iii) any Designated Non-cash Consideration received by the Company or such Restricted Subsidiary is in the form of cash or cash equivalents and (ii) an amount equal to 100% of the Net Available Cash from such Asset Disposition Sale having an aggregate Fair Market Value, taken together with all other Designated Non-cash Consideration received pursuant to this clause (iii) that is applied by at that time outstanding, not to exceed $7.5 million, with the Fair Market Value of each item of Designated Non-cash Consideration being measured at the time received and without giving effect to subsequent changes in value.
(b) The Company (or such a Restricted Subsidiary, as the case may be, may (subject to the proviso in clause (2) below) apply the Net Cash Proceeds of any such Asset Sale within 360 days thereof to:
(1) prepay, repay, purchase, repurchase, redeem, retire, defease or otherwise retire for value (collectively, “repay”) any:
(i) secured Indebtedness of the Company or a Restricted Subsidiary;
(ii) Indebtedness of any Restricted Subsidiary that is not a Note Guarantor; or
(iii) any Senior Indebtedness, provided that, if the Company repays any Senior Indebtedness other than the Notes pursuant to this clause (iii), it must repay Notes or make an offer to repurchase the Notes at a price equal to or above 100% of the principal amount thereof, whether or not the Holders accept such offer, in each case on a pro rata basis with such other Senior Indebtedness; in the case of each of clauses (i) through (iii) above, constituting Indebtedness for borrowed money or Capitalized Lease Obligations, and permanently reduce the commitments with respect thereto without Refinancing; or
(2) purchase or otherwise invest in:
(i) assets (other than current assets as determined in accordance with GAAP or Capital Stock) to be used by the Company or a Permitted Investing Subsidiary in a Permitted Business or capital expenditures;
(ii) all or substantially all of the assets of a Permitted Business or properties; or
(iii) Capital Stock of: (A) firsta Restricted Subsidiary held by a Person other than the Company or any of its Restricted Subsidiaries or (B) a Person engaged in a Permitted Business that becomes, upon the purchase or investment, a Wholly Owned Subsidiary or, in the case of an Asset Sale in respect of assets or Capital Stock of a Restricted Subsidiary, a Restricted Subsidiary of which the Company owns, directly or indirectly, an equal or greater percentage of the economic and voting interests of its Capital Stock as it does (immediately prior to such Asset Sale) in respect of the Restricted Subsidiary whose assets or Capital Stock are included in such Asset Sale; provided that (A) the following Persons may make a purchase or investment in accordance with the foregoing: (x) the Company, (y) a Wholly Owned Subsidiary or (z) in the case of an Asset Sale in respect of assets or Capital Stock held by a Restricted Subsidiary only, a Restricted Subsidiary of which the Company, owns directly or indirectly, an equal or greater percentage of the economic and voting interests of its Capital Stock as it does of the Restricted Subsidiary that made such Asset Sale and (B) no purchase from the Company or any Restricted Subsidiary will satisfy the provisions of this clause (2) (each, other than the Company, a “Permitted Investing Subsidiary”); provided that (x) in the case of clause (2) above, a binding commitment shall be treated as a permitted application of the Net Cash Proceeds from the date of such commitment so long as the Company, or such Restricted Subsidiary enters into such commitment with the good faith expectation that such Net Cash Proceeds will be applied to satisfy such commitment within 90 days of such commitment (an “Acceptable Commitment”) and such Net Cash Proceeds are actually applied to satisfy such commitment within the later of (i) 360 days after receipt of the Net Cash Proceeds from the related Asset Sale and (ii) 90 days after the date of such binding commitment and (y) to the extent such Net Cash Proceeds are not actually applied to satisfy such commitment within the period set forth in clause (x) above, the Net Cash Proceeds not so applied shall constitute Excess Proceeds.
(c) To the extent all or a portion of the Net Cash Proceeds of any Asset Sale are not applied within 360 days thereof (or such longer period as permitted pursuant to an Acceptable Commitment as provided in Section 3.12(b) above) as described in clause (1) or (2) of Section 3.12(b) above (“Excess Proceeds”), the Company will make an offer to purchase Notes (an “Asset Sale Offer”), at a purchase price equal to 100% of the principal amount of the Notes to be purchased, plus accrued and unpaid interest thereon, to the date of purchase (the “Asset Sale Offer Amount”). The Company will purchase pursuant to an Asset Sale Offer from all tendering Holders on a pro rata basis in the manner provided in Section 5.5, and, at the Company’s option, on a pro rata basis with the holders of any other Senior Indebtedness with similar provisions requiring the Company to offer to purchase the other Senior Indebtedness with the proceeds of Asset Sales, that principal amount (or accreted value in the case of Indebtedness issued with original issue discount) of Notes and the other Senior Indebtedness to be purchased equal to such unapplied Net Cash Proceeds. The Company may satisfy its Obligations under this Section 3.12 with respect to any Net Cash Proceeds by making an Asset Sale Offer prior to the expiration of 360 days from the relevant Asset Sale (or, in the event an Acceptable Commitment has been entered into as set forth in Section 3.12(b) above, the later date of the 360th day following the Asset Sale or the expiration of the 90-day period set forth in Section 3.12(b) above).
(d) The purchase of Notes pursuant to an Asset Sale Offer will occur not less than 20 Business Days following the date thereof, or any longer period as may be required by law, nor more than 45 days following the 360th day following the Asset Sale (or, in the event an Acceptable Commitment has been entered into as set forth in Section 3.12(b), the later date of the 360th day following the Asset Sale or the expiration of the 90-day period set forth in such Section 3.12(b)). The Company may, however, defer an Asset Sale Offer until there is an aggregate amount of unapplied Net Cash Proceeds from one or more Asset Sales equal to or in excess of $15.0 million. At that time, the entire amount of unapplied Net Cash Proceeds, and not just the amount in excess of $15.0 million, will be applied as required pursuant to this Section 3.12. Pending application in accordance with this Section 3.12, Net Cash Proceeds may be applied to reduce revolving credit borrowings, Invested in Cash Equivalents or used for general corporate purposes.
(e) Each Asset Sale Offer Notice will be mailed first class, postage prepaid, to the record Holders as shown on the register of Holders within 30 days following such 360th day (or, in the event an Acceptable Commitment has been entered into as set forth in Section 3.12(b) above, the later date of the 360th day following the Asset Sale or the expiration of the 90-day period set forth in such Section 3.12(b)), with a copy to the Trustee offering to purchase the Notes as described above. Each Asset Sale Offer Notice will state, among other things, the purchase date, which must be no earlier than 30 days nor later than 60 days from the date the notice is mailed, other than as may be required by law (the “Asset Sale Offer Payment Date”). Upon receiving notice of an Asset Sale Offer, Holders may elect to tender their Notes in whole or in part in a principal amount of $2,000 or integral multiples of $1,000 in excess thereof in exchange for cash.
(f) On the Asset Sale Offer Payment Date, the Company will, to the extent the Company elects in its sole discretion lawful:
(1) accept for payment all Notes or is ----- required by the terms of any Indebtedness), to prepay, repay, redeem or purchase Indebtedness (other than any Disqualified Stock) of the Company or of a Restricted Subsidiary (in each case other than Indebtedness owed portions thereof properly tendered pursuant to the Company or an Affiliate of the Company) within one year from the later of the date of such Asset Disposition or the receipt of such Net Available CashSale Offer;
(B2) seconddeposit with the Paying Agent funds in an amount equal to the Asset Sale Offer Amount in respect of all Notes or portions thereof so tendered; and
(3) deliver or cause to be delivered to the Trustee the Notes so accepted together with an Officers’ Certificate stating the aggregate principal amount of Notes or portions thereof being purchased by the Company.
(g) To the extent Holders of Notes and holders of other Senior Indebtedness, if any, which are the subject of an Asset Sale Offer properly tender and do not withdraw Notes or the other Senior Indebtedness in an aggregate amount exceeding the amount of unapplied Net Cash Proceeds, the Company will purchase the Notes and the other Senior Indebtedness on a pro rata basis (based on amounts tendered). If only a portion of a Note is purchased pursuant to an Asset Sale Offer, a new Note in a principal amount equal to the portion thereof not purchased will be issued in the name of the Holder thereof upon cancellation of the original Note (or appropriate adjustments to the principal amount of a global Note will be made, as appropriate). Notes (or portions thereof) purchased pursuant to an Asset Sale Offer will be cancelled and cannot be reissued. Upon completion of an Asset Sale Offer, the amount of Net Cash Proceeds will be reset at zero. Accordingly, to the extent that the aggregate amount of Notes and other Indebtedness tendered pursuant to an Asset Sale Offer is less than the balance aggregate amount of such unapplied Net Available Cash after ------ application in accordance with clause (A) of this Section 4.06(a)Proceeds, to the extent the Company elects in its sole discretion, to acquire Additional Assets within one year after the receipt of such may use any remaining Net Available Cash;
(C) third, to the extent of the balance of such Net Available Cash after ----- application in accordance with clauses (A) and (B) of this Section 4.06(a), to make an offer to the holders of the Securities to purchase Securities pursuant to and subject to the conditions contained in Section 4.06(b); and
(D) fourth, to the extent of the balance of such Net Available Cash after ------ application in accordance with clauses (A), (B) and (C) of this Section 4.06(a), Proceeds for the general corporate and working capital purposes of the Company and its Restricted Subsidiaries;.
(ah) except The Company will comply with the requirements of Rule 14e-1 under the Exchange Act and any other applicable securities laws in connection with the purchase of Notes pursuant to an Asset Sale Offer. To the extent that the aggregate Net Available Cash from all Asset Dispositions occurring after the Issue Date which are not applied in accordance provisions of any applicable securities laws or regulations conflict with this Section 4.06(a) (or 3.12, the Company will comply with Section 11D(a) of the terms of the Exchangeable Preferred Stock) exceeds $5 million. Pending application of Net Available Cash pursuant these laws and regulations and will not be deemed to have breached its obligations under this Section 4.06, such Net Available Cash shall be invested in Permitted Investments3.12 by doing so.
Appears in 1 contract
Samples: Indenture (MDC Partners Inc)
Limitation on Sales of Assets and Subsidiary Stock. (a) The Company shall not, and shall not permit any Restricted Subsidiary to, directly or indirectly, consummate any Asset Disposition unless (i) the Company or such Restricted Subsidiary receives consideration at the time of such Asset Disposition at least equal to the fair market value (including as to the value of all non-cash consideration), as determined in good faith by the Board of Directors, of the shares and assets subject to such Asset Disposition and Disposition, (ii) at least 7580% of the consideration thereof received by the Company or such Restricted Subsidiary is in the form of cash or cash, cash equivalents or forgiveness of debt and (iiiii) an amount equal to 100% of the Net Available Cash from such Asset Disposition is applied by the Company (or such Restricted Subsidiary, as the case may be)
) (A) first, to the extent the Company elects in its sole discretion (or is ----- required by the terms of any Indebtedness), to prepay, repay, redeem or purchase Senior Indebtedness or Indebtedness (other than any Disqualified Stock) of the Company or of a Restricted Wholly Owned Subsidiary (in each case other than Indebtedness owed to the Company or an Affiliate of the Company) within one year from the later of the date of such Asset Disposition or the receipt of such Net Available Cash;
; (B) second, to the extent of the balance of such Net Available Cash after ------ application in accordance with clause (A) of this Section 4.06(a4.07(a), to the extent the Company elects in its sole discretionelects, to acquire Additional Assets within one year after from the receipt of such Net Available Cash;
(C) third, to the extent later of the balance of such Net Available Cash after ----- application in accordance with clauses (A) and (B) of this Section 4.06(a), to make an offer to the holders of the Securities to purchase Securities pursuant to and subject to the conditions contained in Section 4.06(b); and
(D) fourth, to the extent of the balance of such Net Available Cash after ------ application in accordance with clauses (A), (B) and (C) of this Section 4.06(a), for the general corporate and working capital purposes of the Company and its Restricted Subsidiaries;
(a) except to the extent that the aggregate Net Available Cash from all Asset Dispositions occurring after the Issue Date which are not applied in accordance with this Section 4.06(a) (or with Section 11D(a) of the terms of the Exchangeable Preferred Stock) exceeds $5 million. Pending application of Net Available Cash pursuant to this Section 4.06, such Net Available Cash shall be invested in Permitted Investments.date of
Appears in 1 contract
Limitation on Sales of Assets and Subsidiary Stock. (a) The Company shall company will not, and shall will not permit any Restricted Subsidiary to, directly or indirectly, consummate any Asset Disposition unless (i) the Company or such Restricted Subsidiary receives consideration at the time of such Asset Disposition at least equal to the fair market value (including the value of all non-cash consideration), as determined in good faith by the Board of DirectorsDirectors of the Company or such Restricted Subsidiary, as the case may be, of the shares and assets subject to such Asset Disposition and Disposition; (ii) at least 75% of the consideration thereof received by the Company or such Restricted Subsidiary is in the form of cash or cash equivalents equivalents; and (iiiii) an amount equal to 100% of the Net Available Cash from such Asset Disposition is applied by the Company (or such Restricted Subsidiary, as the case may be)) 52 45
(Aa) first, to either (x) (i) prepay the extent Senior Credit Facility (and permanently reduce the Company elects in its sole discretion commitments thereunder) and/or (or is ----- required by the terms of any Indebtedness), to ii) prepay, repay, redeem or purchase (and permanently reduce the commitments under) any other Indebtedness (other than any Disqualified Capital Stock) of the Company which ranks equally in right of payment with the Notes or Indebtedness (other than Disqualified Capital Stock) of a Restricted Subsidiary (in each case other than Indebtedness owed to the Company or an Affiliate a Subsidiary of the Company) in an amount not to exceed the other senior debt pro rata share or (y) acquire additional assets, in each case within one year from the later of the date of such Asset Disposition or the receipt of such Net Available Cash;
; (Bb) second, to the extent of the balance of such Net Available Cash after ------ application in accordance with clause (Aa) of this Section 4.06(a)paragraph, to make an offer pursuant to paragraph (b) below to the extent Holders to purchase Notes pursuant to and subject to the Company elects conditions contained in its sole discretion, to acquire Additional Assets within one year after the receipt of such Net Available Cash;
this Indenture; and (Cc) third, to the extent of the balance of such Net Available Cash after ----- application in accordance with clauses (Aa) and or (Bb) of this Section 4.06(a)paragraph, to make an offer any other application or use not prohibited by this Indenture. Notwithstanding the foregoing provisions of this Section, the Company and the Restricted Subsidiaries shall not be required to the holders of the Securities to purchase Securities pursuant to and subject to the conditions contained in Section 4.06(b); and
(D) fourth, to the extent of the balance of such apply any Net Available Cash after ------ application in accordance with clauses paragraph (A), (Bb) and (C) of this Section 4.06(a), for the general corporate and working capital purposes of the Company and its Restricted Subsidiaries;
(a) below except to the extent that the aggregate Net Available Cash from all Asset Dispositions occurring after the Issue Date which are is not applied in accordance with paragraph (b) below exceeds $20.0 million (at which time, the entire unutilized Net Available Cash, and not just the amount in excess of $20.0 million, shall be applied pursuant to paragraph (b) below). For the purposes of this Section 4.06(a4.15, the following are deemed to be cash or cash equivalents: (x) (or with Section 11D(a) the assumption of Indebtedness of the terms Company or any Restricted Subsidiary (other than Subordinated Obligations) and the release of the Exchangeable Preferred StockCompany or such Restricted Subsidiary from all liability on such Indebtedness in connection with such Asset Disposition and (y) exceeds $5 million. Pending application Securities received by the Company or any Restricted Subsidiary from the transferee that are converted by the Company or such Restricted Subsidiary into cash within 90 days of Net Available Cash closing the transaction.
(b) In the event of an Asset Disposition that requires the purchase of the Notes pursuant to clause (a)(iii)(b) above, the Company will be required to purchase Notes tendered pursuant to an offer by the Company for the Notes at a purchase price of 100% of their principal amount (without premium) plus accrued but unpaid interest, if any, in accordance with the procedures (including prorating in the event of over subscription) set forth below (the "Asset Disposition Offer").
(c) With respect to any Asset Disposition offer effected pursuant to this Section 4.064.15, among the Notes, to the extent the aggregate principal amount of Notes tendered pursuant to such Asset Disposition offer exceeds the Net Available Cash to be applied to the repurchase thereof, such Notes shall be invested in Permitted Investmentspurchased pro rata based on the aggregate principal amount of such Notes tendered by each Holder.
Appears in 1 contract
Samples: Indenture (Express Scripts Inc)
Limitation on Sales of Assets and Subsidiary Stock. (a) The Company shall not, and shall not permit any of its Restricted Subsidiary Subsidiaries to, directly or indirectly, consummate make any Asset Disposition unless unless:
(i) the Company or such Restricted Subsidiary receives consideration at the time of such Asset Disposition at least equal to the fair market value value, as determined in good faith by the Company's Board of Directors (including as to the value of all non-cash consideration), as determined in good faith by the Board of Directors, of the shares and assets subject to such Asset Disposition and Disposition;
(ii) at least 7580% of the consideration thereof received by the Company or such Restricted Subsidiary is in the form of cash or cash equivalents and Cash Equivalents; and
(iiiii) an amount equal to 100% of the Net Available Cash from such Asset Disposition is applied by the Company (or such Restricted Subsidiary, as the case may be)
) (A) first, to the extent the Company or any Restricted Subsidiary elects in its sole discretion (or is ----- required by the terms of any Indebtednesssenior secured indebtedness), (x) to prepay, repay, redeem repay or purchase senior secured Indebtedness or Notes or (other than any Disqualified Stocky) of the Company or of a Restricted Subsidiary (in each case other than Indebtedness owed to the Company investment in or an Affiliate acquisition of the Company) Additional Assets within one year 270 days from the later of the date of such Asset Disposition or the receipt of such Net Available Cash;
; (B) second, within 270 days from the receipt of such Net Available Cash, to the extent of the balance of such Net Available Cash after ------ application in accordance with clause (A) of this Section 4.06(a), to make an offer to purchase Securities at 100% of their principal amount plus accrued and unpaid interest, if any, thereon; (C) third, within 90 days after the extent later of the Company elects application of Net Available Cash in its sole discretion, to acquire Additional Assets within one year after accordance with clauses (A) and (B) and the date that is 270 days from the receipt of such Net Available Cash;
(C) third, to the extent of the balance of such Net Available Cash after ----- application in accordance with clauses (A) and (B) of this Section 4.06(a), to make an offer prepay, repay or repurchase Indebtedness (other than Preferred Stock) of a Wholly-Owned Subsidiary (in each case other than Indebtedness owed to the holders of the Securities to purchase Securities pursuant to and subject to the conditions contained in Section 4.06(bCompany); and
and (D) fourth, to the extent of the balance of such Net Available Cash after ------ application in accordance with clauses (A), (B) and (C) of this Section 4.06(a), for to (w) the general corporate investment in or acquisition of Additional Assets, (x) the making of Temporary Cash Investments, (y) the prepayment, repayment or purchase of Indebtedness of the Company (other than Indebtedness owing to any Subsidiary of the Company) or Indebtedness of any Subsidiary (other than Indebtedness owed to the Company or any of its Subsidiaries) or (z) any other purpose otherwise permitted under this Indenture, in each case within the later of 45 days after the application of Net Available Cash in accordance with clauses (A), (B) and working capital purposes (C) or the date that is 360 days from the receipt of such Net Available Cash; provided, however, that, in connection with any prepayment, repayment or purchase of Indebtedness pursuant to clause (A), (B), (C) or (D) above, the Company or such Restricted Subsidiary shall retire such Indebtedness and shall cause the related loan commitment (if any) to be permanently reduced in an amount equal to the principal amount so prepaid, repaid or purchased. Notwithstanding the foregoing provisions, the Company and its Restricted Subsidiaries;
(a) Subsidiaries shall not be required to apply any Net Available Cash in accordance herewith except to the extent that the aggregate Net Available Cash from all Asset Dispositions occurring after the Issue Date which are not applied in accordance with this Section 4.06(acovenant at any time exceeds $10.0 million. The Company shall not be required to make an offer for Securities pursuant to this covenant if the Net Available Cash available therefor (after application of the proceeds as provided in clause (A)) is less than $10.0 million for any particular Asset Disposition (which lesser amounts shall be carried forward for purposes of determining whether an offer is required with respect to the Net Available Cash form any subsequent Asset Disposition). For the purposes of this covenant, the following will be deemed to be cash: (x) the assumption by the transferee of senior indebtedness of the Company or senior indebtedness of any Restricted Subsidiary of the Company and the release of the Company or such Restricted Subsidiary from all liability on such senior indebtedness in connection with Section 11D(asuch Asset Disposition (in each case the Company shall, without further action, be deemed to have applied such assumed Indebtedness in accordance with clause (A) of the terms preceding paragraph) and (y) securities received by the Company or any Restricted Subsidiary of the Exchangeable Preferred StockCompany from the transferee that are promptly (and in any event within 60 days) exceeds $5 millionconverted by the Company or such Restricted Subsidiary into cash.
(b) In the event of an Asset Disposition that requires the purchase of Securities pursuant to clause (a)(iii)(B) of this Section 4.8, the Company will be required to purchase Securities tendered pursuant to an offer by the Company for the Securities at a purchase price of 100% of their principal amount plus accrued and unpaid interest, if any, to the purchase date in accordance with the procedures (including prorating in the event of oversubscription) set forth in this Indenture. Pending application If the aggregate purchase price of the Securities tendered pursuant to the offer is less than the Net Available Cash allotted to the purchase of the Securities, the Company will apply the remaining Net Available Cash in accordance with clauses (a) (iii)(C) or (D) of this Section 4.8 as permitted under this Indenture.
(c) If the Company becomes obligated to make an Offer pursuant to this Section 4.064.8, the Securities shall be purchased by the Company, at the option of the holder thereof, in whole or in part in integral multiples of $1,000, on a date that is not earlier than 30 days and not later than 60 days from the date the notice is given to holders, or such later date as may be necessary for the Company to comply with the requirements under the Exchange Act, subject to proration in the event the amount Net Available Cash is less than the aggregate Offered Price of all Securities tendered.
(d) Any notice pursuant to this Section 4.8 shall contain all instructions and materials necessary to enable such Securityholders to tender Securities pursuant to the offer required to be made pursuant to this Section 4.8 and shall state the following terms:
(1) that the offer is being made pursuant to this Section 4.8 and that all Securities tendered will be accepted for payment; provided, however, that if the aggregate principal amount of Securities tendered in an offer exceeds the aggregate amount of the offer, the Company shall select the Securities to be purchased on a pro rata basis (with such adjustments as may be deemed appropriate by the Company so that only Securities in denominations of $1,000 or multiples thereof shall be invested purchased);
(2) the purchase price (including the amount of accrued interest) and the purchase date (which shall be 30 days from the date of mailing of notice of such offer, or such longer period as required by law) (the "Proceeds Purchase Date");
(3) that any Securities not tendered will continue to accrue interest;
(4) that, unless the Company defaults in Permitted Investmentsmaking payment therefor, any Security accepted for payment pursuant to the offer shall cease to accrue interest after the Proceeds Purchase Date;
(5) that Securityholders electing to have a Security purchased pursuant to such offer will be required to surrender the Security, with the form entitled "Option of Holder to Elect Purchase" on the reverse of the Security completed, to the Paying Agent at the address specified in the notice prior to the close of business on the third Business Day prior to the Proceeds Purchase Date;
(6) that Securityholders will be entitled to withdraw their election if the Paying Agent receives, not later than five Business Days prior to the Proceeds Purchase Date, a telegram, telex, facsimile transmission or letter setting forth the name of the Securityholder, the principal amount of the Securities the Securityholder delivered for purchase and a statement that such Securityholder is withdrawing his election to have such Security purchased; and
(7) that Securityholders whose Securities are purchased only in part will be issued new Securities in a principal amount equal to the unpurchased portion of the Securities surrendered; provided that each Security purchased and each new Security issued shall be in an original principal amount of $1,000 or integral multiples thereof; On or before the Proceeds Purchase Date, the Company shall (i) accept for payment Securities or portions thereof tendered pursuant to the offer which are to be purchased in accordance with item (f)(1) above, (ii) deposit with the Paying Agent U.S. Legal Tender sufficient to pay the purchase price plus accrued interest, if any, of all Securities to be purchased and (iii) deliver to the Trustee Securities so accepted together with an Officers' Certificate stating the Securities or portions thereof being purchased by the Company. The Paying Agent shall promptly mail to the Securityholders of Securities so accepted payment in an amount equal to the purchase price plus accrued interest, if any. For purposes of this Section 4.8, the Trustee shall act as the Paying Agent. Any amounts remaining after the purchase of the Securities pursuant to an offer pursuant to this Section 4.8 shall be returned by the Trustee to the Company.
(e) The Company will comply, to the extent applicable, with the requirements of Section 14(e) of the Exchange Act and any other securities laws or regulations in connection with the repurchase of Securities pursuant to this Indenture. To the extent that the provisions of any securities laws or regulations conflict with provisions of this covenant, the Company will comply with the applicable securities laws and regulations and will not be deemed to have breached its obligations under this Indenture by virtue thereof.
Appears in 1 contract
Samples: Indenture (Comforce Corp)
Limitation on Sales of Assets and Subsidiary Stock. (a) The Company shall will not, and shall will not permit any of its Restricted Subsidiary Subsidiaries to, directly or indirectly, consummate make any Asset Disposition unless unless: (i1) in the case of any Asset Disposition involving shares or assets having a value equal to or in excess of $1.0 million, the Company or such Restricted Subsidiary Subsidiary, as the case may be, receives consideration at the time of such Asset Disposition at least equal to the fair market value (such fair market value to be determined on the date of contractually agreeing to such Asset Disposition), as determined in good faith by the Board of Directors (including the value of all non-cash consideration), as determined in good faith by the Board of Directors, of the shares and assets subject to such Asset Disposition; (2) in the case of any Asset Disposition and involving shares or assets having a value equal to or in excess of $1.0 million, at least 75% of the consideration thereof from such Asset Disposition received by the Company or such Restricted Subsidiary Subsidiary, as the case may be, is in the form of cash or cash equivalents Cash Equivalents; and (ii3) an amount equal to 100% of the Net Available Cash from such Asset Disposition is applied by the Company (or such Restricted Subsidiary, as the case may be)
be (Ai) first, to the extent the Company elects in its sole discretion (or is ----- required by the terms of any Indebtedness), to prepay, repay, redeem repay or purchase secured Indebtedness of the Company or secured Indebtedness of a Restricted Subsidiary (other than any Disqualified Stock) of the Company Stock or Guarantor Subordinated Obligations of a Restricted Subsidiary (that is a Subsidiary Guarantor), in each case other than Indebtedness owed to the Company or an Affiliate of the CompanyCompany (other than to the extent such Indebtedness is permitted under Sections 3.3(b)(1), 3.3(b)(2)(solely with respect to Guarantees under this Agreement), 3.3(b)(4)(a), 3.3(b)(4)(c)(solely with respect to the Securities), Section 3.3(b)(6), Section 3.3(b)(10) and Section 3.3(b)(11)), within one year 360 days from the later of the date of such Asset Disposition or the receipt of such Net Available Cash;
; provided, however, that, in connection with any prepayment, repayment or purchase of Indebtedness pursuant to this clause (Bi), the Company or such Restricted Subsidiary will retire such Indebtedness and will cause the related commitment (if any) second, to be permanently reduced in an amount equal to the extent principal amount so prepaid, repaid or purchased (except, after the ABL Revolver Date, with respect to prepayments or repayments of the balance of such Net Available Cash after ------ application in accordance with ABL Obligations pursuant to this clause (Ai)) of this Section 4.06(a), ; or (ii) to the extent the Company elects invest in its sole discretion, to acquire Additional Assets within one year after 360 days from the later of the date of such Asset Disposition or the receipt of such Net Available Cash;; provided that pending the final application of any such Net Available Cash in accordance with Section 3.7(a)(3)(a) or Section 3.7(a)(3)(b) above, the Company and its Restricted Subsidiaries may temporarily reduce Indebtedness or otherwise invest such Net Available Cash in any manner not prohibited by this Indenture; provided, further, that in the case of an Asset Disposition of Collateral, any cash will be deposited in the Collateral Account or otherwise in accordance with the Intercreditor Agreement.
(Cb) thirdAny Net Available Cash from Asset Dispositions that are not applied or invested as provided in Section 3.7(a)(3) will be deemed to constitute “Excess Proceeds.” On the 361st day after an Asset Disposition, if the aggregate amount of Excess Proceeds exceeds $5.0 million, the Company will be required to make an offer (“Asset Disposition Offer”) to all Holders of Securities to purchase the maximum principal amount of Securities to which the Asset Disposition Offer applies that may be purchased out of the Excess Proceeds, at an offer price in cash in an amount equal to 100% of the principal amount of the Securities plus accrued and unpaid interest to but not including the date of purchase, in accordance with the procedures set forth in this Indenture in denominations of $1 principal amount and integral multiples of $1 in excess thereof. To the extent that the aggregate amount of Securities so validly tendered and not properly withdrawn pursuant to an Asset Disposition Offer is less than the Excess Proceeds, the Company may use any remaining Excess Proceeds (x) for general corporate purposes, subject to other covenants contained in this Indenture; provided that to the extent that the assets disposed of in such asset sale constitutes Collateral, any assets purchased with such Excess Proceeds shall be pledged as Collateral pursuant to the Collateral Documents or (y) to make Restricted Payments in accordance with Section 3.5(a) (such Excess Proceeds not so invested, applied or used for general corporate purposes, “Extra Asset Sale Proceeds”). If the aggregate principal amount of Securities surrendered by holders thereof surrendered by holders or lenders, collectively, exceeds the amount of Excess Proceeds, the Trustee shall select the Securities to be purchased on a pro rata basis in authorized denominations of the aggregate principal amount of tendered Securities. Upon completion of such Asset Disposition Offer, the amount of Excess Proceeds shall be reset at zero.
(1) The Asset Disposition Offer shall remain open for a period of 20 Business Days following its commencement, except to the extent that a longer period is required by applicable law (the “Asset Disposition Offer Period”). No later than five Business Days after the termination of the Asset Disposition Offer Period (the “Asset Disposition Purchase Date”), the Company will purchase the principal amount of Securities required to be purchased pursuant to this Section 3.7 (the “Asset Disposition Offer Amount”) or, if less than the Asset Disposition Offer Amount has been so validly tendered, all Securities validly tendered in response to the Asset Disposition Offer. If the Asset Disposition Purchase Date is on or after an interest record date and on or before the related interest payment date, any accrued and unpaid interest will be paid to the Person in whose name a Security is registered at the close of business on such record date, and no additional interest will be payable to Holders who tender Securities pursuant to the Asset Disposition Offer. On or before the Asset Disposition Purchase Date, the Company will, to the extent lawful, accept for payment, on a pro rata basis to the extent necessary, the Asset Disposition Offer Amount of Securities or portions thereof so validly tendered and not properly withdrawn pursuant to the balance Asset Disposition Offer, or if less than the Asset Disposition Offer Amount has been validly tendered and not properly withdrawn, all Securities so validly tendered and not properly withdrawn, in each case in denominations of $1 and integral multiples of $1 in excess thereof. The Company will deliver to the Trustee an Officers’ Certificate stating that such Net Available Cash after ----- application Securities or portions thereof were accepted for payment by the Company in accordance with clauses (A) and (B) the terms of this Section 4.06(a)3.7. The Company or the Paying Agent, as the case may be, will promptly (but in any case not later than five Business Days after termination of the Asset Disposition Offer Period) mail or deliver to make each tendering Holder of Securities an offer amount equal to the holders purchase price of the Securities so validly tendered and not properly withdrawn by such Holder or lender, as the case may be, and accepted by the Company for purchase, and the Company will promptly issue a new Security, and the Trustee, upon delivery of a Company Order, will authenticate and mail or deliver such new Security to purchase Securities pursuant such Holder, in a principal amount equal to and subject any unpurchased portion of the Security surrendered; provided that each such new Security will be in a principal amount of $1 or an integral multiple of $1 in excess thereof. Any Security not so accepted will be promptly mailed or delivered by the Company to the conditions contained Holder thereof. The Company will publicly announce the results of the Asset Disposition Offer on the Asset Disposition Purchase Date. For the purposes of this Section 3.7, the following will be deemed to be cash:
(1) the assumption by the transferee of Indebtedness (other than Subordinated Obligations or Disqualified Stock) of the Company or Indebtedness of a Restricted Subsidiary (other than Guarantor Subordinated Indebtedness, Guarantor Subordinated Obligations or Disqualified Stock of any Wholly- Owned Subsidiary that is a Subsidiary Guarantor) and the release of the Company or such Restricted Subsidiary from all liability on such Indebtedness in connection with such Asset Disposition (in which case the Company will, without further action, be deemed to have applied such deemed cash to Indebtedness in accordance with Section 4.06(b3.7(a)(3)(a)); and
(D2) fourthsecurities, notes or other obligations received by the Company or any Restricted Subsidiary from the transferee that are promptly converted by the Company or such Restricted Subsidiary into cash.
(d) The Company will comply, to the extent applicable, with the requirements of Section 14(e) of the balance Exchange Act and any other securities laws or regulations in connection with the repurchase of such Net Available Cash after ------ application in accordance with clauses (A), (B) and (C) of Securities pursuant to this Section 4.06(a), for the general corporate and working capital purposes of the Company and its Restricted Subsidiaries;
(a) except to Indenture. To the extent that the aggregate Net Available Cash from all Asset Dispositions occurring after the Issue Date which are not applied in accordance provisions of any securities laws or regulations conflict with provisions of this Section 4.06(a) (or 3.7, the Company will comply with Section 11D(a) of the terms of the Exchangeable Preferred Stock) exceeds $5 million. Pending application of Net Available Cash pursuant applicable securities laws and regulations and will not be deemed to have breached its obligations under this Section 4.06, such Net Available Cash shall be invested in Permitted InvestmentsIndenture by virtue thereof.
Appears in 1 contract
Samples: Indenture (NBC Acquisition Corp)
Limitation on Sales of Assets and Subsidiary Stock. (a) The Each of the Parent and the Company shall not, and shall not permit any Restricted Subsidiary to, directly or indirectly, consummate any Asset Disposition unless unless:
(i) the Parent, the Company or such Restricted Subsidiary Subsidiary, as the case may be, receives consideration at the time of such Asset Disposition at least equal to the fair market value (including as to the value of all non-cash consideration), as determined in good faith by the Board of Directors, of the shares and assets subject to such Asset Disposition;
(ii) in the case of an Asset Disposition for consideration exceeding $5.0 million, the fair market value is determined, in good faith, by the Board of Directors, and evidenced by a resolution of the Board of Directors set forth in an Officer's Certificate delivered to the Trustee;
(iii) at least 75% of the consideration thereof received by the Parent, the Company or such Restricted Subsidiary Subsidiary, as the case may be, is in the form of cash or cash equivalents and equivalents; and
(iiiv) an amount equal to 100% of the Net Available Cash from such Asset Disposition is applied by the Parent, the Company (or such Restricted Subsidiary, as the case may be), within 365 days after its receipt, at its option:
(A) first, to the extent the Company elects in its sole discretion (or is ----- required by the terms of any Indebtedness), to prepay, repay, redeem or purchase Senior Indebtedness of the Company or Senior Indebtedness (other than any Disqualified Stock) of the Company or of a Restricted Wholly Owned Subsidiary (in each case other than Indebtedness owed to the Company or an Affiliate of the Company) within one year from the later of the date of such Asset Disposition Company or the receipt of such Net Available CashParent);
(B) second, to acquire Additional Assets; and
(C) to the extent of the balance of such Net Available Cash after ------ application in accordance with clause (A) of this Section 4.06(a), to the extent the Company elects in its sole discretion, to acquire Additional Assets within one year after the receipt of such Net Available Cash;
(C) third, to the extent of the balance of such Net Available Cash after ----- application in accordance with clauses (A) and (B) of this Section 4.06(a4.10(a)(iv), to make an offer to the Holders of the Notes (and to holders of other Senior Indebtedness of the Securities Company designated by it) to purchase Securities Notes (and such other Senior Indebtedness of the Company) pursuant to and subject to the conditions contained in Section 4.06(b)this Indenture; and
(D) fourthprovided, however, that in connection with any prepayment, repayment or purchase of Indebtedness pursuant to the extent of the balance of such Net Available Cash after ------ application in accordance with clauses clause (A), (B) and or (C) of Section 4.10(a)(iv), the Company or such Restricted Subsidiary shall permanently retire such Indebtedness and shall cause the related loan commitment, if any, to be permanently reduced in an amount equal to the principal amount so prepaid, repaid or purchased. Notwithstanding the foregoing provisions of this Section 4.06(a)4.10, for the general corporate and working capital purposes of Parent, the Company and its the Restricted Subsidiaries;
(aSubsidiaries will not be required to apply any Net Available Cash in accordance with this Section 4.10(a) except to the extent that the aggregate Net Available Cash from all Asset Dispositions occurring after the Issue Date which are not applied in accordance with this Section 4.06(a) (or with Section 11D(a) of the terms of the Exchangeable Preferred Stock4.10(a) exceeds $5 10.0 million. Pending application of Net Available Cash pursuant to this Section 4.064.10(a), such Net Available Cash shall be invested in Permitted Temporary Cash Investments or used to reduce loans outstanding under any revolving credit facility existing under a Credit Facility. For the purposes of this Section 4.10, the following are deemed to be cash or cash equivalents: (i) the assumption of Indebtedness of the Parent, the Company or any Restricted Subsidiary (other than any of their Subordinated Obligations) and the release of the Parent, the Company or such Restricted Subsidiary, as the case may be, from all liability on such Indebtedness in connection with such Asset Disposition and (ii) any securities received by the Company or any Restricted Subsidiary from the transferee that are promptly converted by the Company or such Restricted Subsidiary into cash on the maturity date thereof but in no event later than 180 days after the receipt thereof (to the extent of cash received).
(b) In the event of an Asset Disposition that requires the purchase of the Notes (and other Senior Indebtedness of the Company) pursuant to Section 4.10(a)(iv)(C), the Company shall purchase Notes tendered pursuant to an offer by the Company for the Notes (and such other Senior Indebtedness of the Company) at a purchase price of 100% of their principal amount (or, in the event such other Senior Indebtedness of the Company was issued with significant original issue discount, 100% of the accreted value thereof) (the "Offer"), without premium, plus accrued but unpaid interest (or, in respect of such other Senior Indebtedness of the Company, such lesser price, if any, as may be provided for by the terms of such Senior Indebtedness of the Company) in accordance with the procedures (including prorating in the event of oversubscription) set forth in Section 4.10(c). If the aggregate purchase price of the securities tendered pursuant to the Offer exceeds the Net Available Cash allotted to their purchase, the Company will select the securities to be purchased on a pro rata basis but in denominations of $1,000 principal amount or multiples thereof.
(1) Promptly, and in any event within 10 days after the Company becomes obligated to make an Offer, the Company shall be obligated to deliver to the Trustee and send, by first-class mail to each Holder, a written notice stating that the Holder may elect to have its Notes purchased by the Company either in whole or in part (subject to prorating as hereinafter described in the event the Offer is oversubscribed) in integral multiples of $1,000 of principal amount, at the applicable purchase price. The notice shall specify a purchase date not less than 30 days nor more than 60 days after the date of such notice (the "Purchase Date") and shall contain such information concerning the business of the Company which the Company in good faith believes will enable such Holders to make an informed decision (which at a minimum will include (i) the most recently filed Annual Report on Form 10-K (including audited consolidated financial statements) of the Company, the most recent subsequently filed Quarterly Report on Form 10-Q and any Current Report on Form 8-K of the Company filed subsequent to such Quarterly Report, other than Current Reports describing Asset Dispositions otherwise described in the offering materials (or corresponding successor reports), provided, however, this obligation can be satisfied by the Parent's filing and providing such information, documents and reports so long as the Parent owns all the Capital Stock of the Company, (ii) a description of material developments in the Company's (or the Parent's, if applicable) business subsequent to the date of the latest of such Reports and (iii) if material, appropriate pro forma financial information) and all instructions and materials necessary to tender Notes pursuant to the Offer, together with the information contained in clause (3) of this Section 4.10(c).
(2) Not later than the date upon which written notice of an Offer is delivered to the Trustee as provided above, the Company shall deliver to the Trustee an Officers' Certificate as to (i) the amount of the Offer (the "Offer Amount"), (ii) the allocation of the Net Available Cash from the Asset Dispositions pursuant to which such Offer is being made and (iii) the compliance of such allocation with the provisions of Section 4.10(a). On such date, the Company shall also irrevocably deposit with the Trustee or with a Paying Agent other than the Company in Temporary Cash Investments, maturing on the last day prior to the Purchase Date or on the Purchase Date if funds are immediately available by open of business, an amount equal to the Offer Amount to be held for payment in accordance with the provisions of this Section. Upon the expiration of the period for which the Offer remains open (the "Offer Period"), the Company shall deliver to the Trustee for cancellation the Notes or portions thereof which have been properly tendered to and are to be accepted by the Company. The Trustee shall, on the Purchase Date, mail or deliver payment to each tendering Holder in the amount of the purchase price. In the event that the aggregate purchase price of the Notes delivered by the Company to the Trustee is less than the Offer Amount, the Trustee shall deliver the excess to the Company immediately after the expiration of the Offer Period for application in accordance with this Section.
(3) Holders electing to have a Note purchased shall be required to surrender the Note, with an appropriate form duly completed, to the Company at the address specified in the notice at least three Business Days prior to the Purchase Date. Holders shall be entitled to withdraw their election if the Trustee or the Company receives, not later than one Business Day prior to the Purchase Date, a telegram, telex, facsimile transmission or letter setting forth the name of the Holder, the principal amount of the Note which was delivered for purchase by the Holder and a statement that such Hxxxxx is withdrawing his election to have such Note purchased. If at the expiration of the Offer Period the aggregate principal amount of Notes (and any other Senior Indebtedness included in the Offer) surrendered pursuant to the Offer exceeds the Offer Amount, the Company shall select the Notes and other Senior Indebtedness to be purchased on a pro rata basis (with such adjustments as may be deemed appropriate by the Company so that only Notes and other Senior Indebtedness in denomination of $1,000, or integral multiples thereof, shall be purchased). Holders whose Notes are purchased only in part shall be issued new Notes equal in principal amount to the unpurchased portion of the Notes surrendered.
(4) At the time the Company delivers Notes to the Trustee which are to be accepted for purchase, the Company shall also deliver an Officers' Certificate stating that such Notes are to be accepted by the Company pursuant to and in accordance with the terms of this Section 4.10. A Note shall be deemed to have been accepted for purchase at the time the Trustee, directly or through an agent, mails or delivers payment therefor to the surrendering Holder.
(d) Each of the Parent and 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 Notes pursuant to this Section 4.10. To the extent that the provisions of any securities laws or regulations conflict with provisions of this Section 4.10, each of the Parent and the Company will comply with the applicable securities laws and regulations and will not be deemed to have breached its obligations under this clause by virtue of its compliance with such securities laws or regulations.
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Limitation on Sales of Assets and Subsidiary Stock. (a) The Company shall not, and shall not permit any of its Restricted Subsidiary Subsidiaries to, directly or indirectly, consummate make any Asset Disposition unless (i) the Company or such Restricted Subsidiary receives consideration at the time of such Asset Disposition at least equal to the fair market value value, as determined in good faith by the Company's Board of Directors (including as to the value of all non-cash consideration), as determined in good faith by the Board of Directors, of the shares and assets subject to such Asset Disposition and Disposition, (ii) at least 75% of the consideration thereof received by the Company or such Restricted Subsidiary is in the form of cash or cash equivalents Cash Equivalents and (iiiii) an amount equal to 100% of the Net Available Cash from such Asset Disposition is applied by the Company (or such Restricted Subsidiary, as the case may be)
) (A) firstFIRST, to the extent the Company or any Restricted Subsidiary elects in its sole discretion (or is ----- required by the terms of any Secured Indebtedness), (x) to prepay, repay, redeem repay or purchase Secured Indebtedness (other than any Disqualified Stock) within 45 days from the later of the Company date of such Asset Disposition or the receipt of a Restricted Subsidiary such Net Available Cash or (in each case other than Indebtedness owed y) to the Company investment in or an Affiliate acquisition of the Company) Additional Assets within one year 360 days from the later of the date of such Asset Disposition or the receipt of such Net Available Cash;
; (B) secondSECOND, within 360 days from the receipt of such Net Available Cash, to the extent of the balance of such Net Available Cash after ------ application in accordance with clause (A) of this Section 4.06(a), to the extent the Company elects in its sole discretionmake an offer to purchase Securities at 100% of their principal amount plus accrued and unpaid interest, to acquire Additional Assets within one year after the receipt of such Net Available Cash;
if any, thereon; and (C) thirdTHIRD, to the extent of the balance of such Net Available Cash after ----- application in accordance with clauses (A) and (B) of this Section 4.06(a), to make an offer to (w) the holders investment in or acquisition of Additional Assets, (x) the Securities to purchase Securities pursuant to and subject to making of Temporary Cash Investments or (y) any other purpose otherwise permitted under this Indenture, in each case within the conditions contained in Section 4.06(b); and
(D) fourth, to later of 45 days after the extent application of the balance of such Net Available Cash after ------ application in accordance with clauses (A), ) and (B) or the date that is one year from the receipt of such Net Available Cash; PROVIDED, HOWEVER, that, in connection with any prepayment, repayment or purchase of Indebtedness pursuant to clause (A) or (B) above, the Company or such Restricted Subsidiary shall retire such Indebtedness and shall cause the related loan commitment (Cif any) of this Section 4.06(a)to be permanently reduced in an amount equal to the principal amount so prepaid, for repaid or purchased. Notwithstanding the general corporate and working capital purposes of foregoing provisions, the Company and its Restricted Subsidiaries;
(a) Subsidiaries shall not be required to apply any Net Available Cash in accordance herewith except to the extent that the aggregate Net Available Cash from all Asset Dispositions occurring after the Issue Date which are not applied in accordance with this Section 4.06(acovenant at any time exceed $10.0 million. The Company shall not be required to make an offer for Securities pursuant to this covenant if the Net Available Cash available therefor (after application of the proceeds as provided in clause (A)) is less than $10.0 million for any particular Asset Disposition (which lesser amounts shall be carried forward for purposes of determining whether an offer is required with respect to the Net Available Cash from any subsequent Asset Disposition). For the purposes of this covenant, the following will be deemed to be cash: (x) the assumption by the transferee of Senior Indebtedness of the Company or Senior Indebtedness of any Restricted Subsidiary of the Company and the release of the Company or such Restricted Subsidiary from all liability on such Senior Indebtedness in connection with Section 11D(asuch Asset Disposition (in which case the Company shall, without further action, be deemed to have applied such assumed Indebtedness in accordance with clause (A) of the terms preceding paragraph) and (y) securities received by the Company or any Restricted Subsidiary of the Exchangeable Preferred StockCompany from the transferee that are promptly (and in any event within 90 days) exceeds $5 millionconverted by the Company or such Restricted Subsidiary into cash.
(b) In the event of an Asset Disposition that requires the purchase of Securities pursuant to clause (a)(iii)(B), the Company will be required to purchase Securities tendered pursuant to an offer by the Company for the Securities at a purchase price of 100% of their principal amount plus accrued and unpaid interest, if any, to the purchase date in accordance with the procedures (including prorating in the event of oversubscription) set forth in this Indenture. Pending application If the aggregate purchase price of the Securities tendered pursuant to the offer is less than the Net Available Cash allotted to the purchase of the Securities, the Company will apply the remaining Net Available Cash in accordance with clause (a)(iii)(C) above.
(c) The Company will comply, to the extent applicable, with the requirements of Section 14(e) of the Exchange Act and any other securities laws or regulations in connection with the repurchase of Securities pursuant to this Section 4.06Indenture. To the extent that the provisions of any securities laws or regulations conflict with provisions of this covenant, such Net Available Cash shall the Company will comply with the applicable securities laws and regulations and will not be invested in Permitted Investmentsdeemed to have breached its obligations under this Indenture by virtue thereof.
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Samples: Indenture (Resort Investment LLC)
